BC Business Law Blog

FAQ'S - Business Dispute Resolution

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Wed, 11 Jun 2008 00:33:00 +0000

Business Dispute Resolution
Business dispute resolution can involve mediation as well as litigation, but my orientation from the outset is always going to be: how do we get into a position to resolve this dispute? I am always trying to arrive at an efficient, effective resolution of the dispute without spending unnecessary amounts of resources. I am looking at an alternative to the typical litigation process, which can often take months or years to reach a resolution. I try to find an opportunity to use mediation or negotiation at various stages, but I will always attempt to resolve the dispute from the outset by encouraging dialogue between the parties, giving them both an opportunity to explain where they are coming from and create an opportunity for resolution. This doesn’t happen in every situation, however.

Sometimes, by the time they have contacted a lawyer, the relationship between the parties has soured, and some litigation will be necessary. What we do then is start the litigation process and take as many steps in that process as are necessary.

Any lawyer who is dealing with business dispute resolution needs to be competent at litigating and using the various litigation tools that are available, as well as having skills as a problem solver. Those problem solving skills involve analytical skills to understand what is going on with the business disputes. Having a sound understanding of business helps a lot in this area too, and I think my previous experience as a business owner and the business manager of various businesses including a public company gives me that background. A knowledge of business is helpful as well as expertise and experience with alternative dispute resolution methods, primarily mediation and negotiation.

Mediation
The benefits of mediation in business dispute resolution.
Litigation is a fairly expensive process, particularly civil litigation. The disadvantage is not only the cost of litigation but also the time involved. A typical civil case can take 18 months to two years to resolve. On the other hand, mediation can be done in a couple of days or in an afternoon, and within a few weeks of understanding the issue. Certainly a major advantage of mediation is its reduced cost and time efficiency.

Another advantage is that the mediation process is not adversarial. The litigation process in Canada is adversarial: it places two parties in opposition to each other in order to test and arrive at the truth. The adversarial process can create a lot of bitterness. A mediation setting encourages discussion between the parties and encourages both parties to have input into the resolution, and so the damage to the relationship is much less.

Mediation is also beneficial because both parties have a role in creating the resolution. They have an investment in it and they are usually happy with the outcome because they have some control versus an outcome being imposed on them by a third party, such as a judge or an arbitrator.

Mediation is a win-win proposition whereas going to litigation is a win-lose proposition. In litigation, one party usually prevails and one loses, and the cost of the litigation goes to the victor. In mediation, both parties have an opportunity to come out as a winner, as long as they go there with an open mind and with a real view to resolving the dispute.

There are some other advantages as well. In mediation, the parties can control the outcome in a way that they cannot in a litigated solution. In litigation, both parties present their best case before the judge. The judge then makes a decision and at times that outcome might be very surprising. Also, mediation aims at encouraging the parties to put their interests, as opposed to their legal position, forward. Often in mediation you will find that a party may have taken a legal position throughout the dispute. This position is based on a legal entitlement but they haven’t explained what their real interest is behind that position. A mediator tries to understand what the underlying interests are. Once those interests come to the foreground, a resolution is usually a lot easier to achieve because now there is a mutual interest in resolving the dispute, not just in saving money or in some other hidden interests. The mediation process encourages the parties to put those interests on the table. That just does not happen in a litigation procedure, which is based on more technical legal positions.

The final benefit of mediation is confidentiality. Civil cases take place in an open courtroom, which means that all of the pleadings and all of the testimony is available to the public. Mediation can take place in a confidential setting and typically a mediated settlement will be confidential unless the parties agree otherwise. There are many situations in business where confidentiality has a high value. So that’s another significant advantage of mediation.

Mediation
Overcoming the disadvantages of mediation in business dispute resolution.
One of the real problems in mediation occurs when the parties have unequal bargaining power. This means one party is a lot stronger than the other.

In a business context, fairly typical situations would be ownership disputes, shareholder disputes, or partnership disputes. One shareholder may be the majority shareholder and also the one who controls the company’s board of directors and all of the resources. This party controls the bank account and can pay for legal fees through the company. As well, he has access to all of the company records and all the financial information about the business. In this situation, it is pretty tough to go in as a minority shareholder and mediate that dispute because of the complete lack of knowledge and negotiating power. One party is holding all the cards.

Mediation is least effective when one party stands to gain a lot and the other party only stands to lose a lot. Our approach is to use litigation to level the playing field because mediation works best when both parties go into the process in the same position: being able to lose the same amount.

Reasons for consulting a lawyer in a business dispute resolution.
It would be great if you could develop a computer program and put it up on the Internet to help people conduct business resolutions themselves. But in reality, there is tremendous skill required to use all of the tools that are available through the litigation process, the court, and mediation. Even choosing the right mediator requires skill in order to match the personality of the mediator with the parties involved. There are a lot of these intangible skills that a dispute resolution lawyer brings to the table in order to help the client resolve disputes more effectively than they could themselves.

A certain number of cases are straight forward, commercial debt for instance, and if the client has a relationship with the third party, the client could probably resolve that by picking up the phone and talking to the person who owes them the money about why they have not paid. Often I recommend that strategy. If it’s a straight forward dispute, then the client can proceed by himself and save the cost of hiring a lawyer. I will even give a prospective client a few tips. We do not typically get involved unless we both believe that legal representation can add some value to the process of resolving the dispute. A lawyer offers a combination of legal experience and business experience, all of which we have gained by resolving hundreds of business disputes.

The process of preparing a client for mediation in a business dispute.
We spend time with the client at the beginning, analysing the case, determining what legal rights and legal entitlements our client has. One way to increase the effectiveness of mediation is to use litigation to ensure that both parties are on equal terms at the outset. If one of the parties conducting the litigation has control of the company’s bank account and can pay for the company lawyer to handle the dispute, that party is going to be at a significant advantage over the party who, for instance, has been squeezed out of the business, has no income because he has been cut off from working at the business and has no access to company resources. We will start the litigation in order to obtain court orders that will level the playing field somewhat. For example, the court can order the other side to disclose all of the relevant documents through the document discovery process. Without litigation, that information may not be available. The person controlling all the key documents is often reluctant to release documents that would be helpful to the other side. We develop a plan at the beginning of the process in order to take a few steps in the litigation process to put our client in a strong position to negotiate. The mediation will be much more likely to succeed if our client is going in with full disclosure.

We also spend a lot of time having the client prepare a chronology of key events. At a certain stage, we will determine what witnesses and documents will be required to prove our client’s case. Once we have that material, we are in a position to mediate, but not before.

Sometimes we turn to expert witnesses, but we use them sparingly because they are very expensive. In certain cases, expert witnesses will be helpful. In business disputes, the main expert we use is a financial expert. Often, business disputes come down to accounting, so accountants are very helpful witnesses in determining the value of a business asset or determining what a business is worth. Business evaluation experts, who are accountants with a specialized designation in business evaluation, can be helpful in cases where the business is going to be split up. They can help determine what the value of that business is. Often the resolution is the process of bridging the gaps between the competing experts: one party’s expert says his value of assets is a million dollars and the other party’s expert values them at half a million or two million dollars. A big part of the job then is to get behind those evaluations and assumptions and find ways to bridge the gap between the two positions.

We are strong proponents of mediation and dispute resolution, but we also know that we have to use the court system as a strategic resource to level the playing field. There are all kinds of other ways you can resolve disputes, other than litigation, once both parties are on an equal footing

Scenarios that require the expertise of a lawyer to resolve a business dispute.
We are often required to assist with either a shareholder or partnership dispute, which is basically an ownership dispute. This would be an internal dispute between the owners of a business sometime after the business has been established. Such disputes are often the result of the lack of considered structuring at the outset of the business venture. Partners or joint venture participants often go into a business arrangement with a lot of enthusiasm but have not really taken the time to think about the future. Quite often when businesses are started, the partners are equal going in and no one has put any thought into the question of what happens if the two equal partners disagree on the direction of the business or on a particular decision to be made. If they are 50:50 owners of the partnership or 50:50 owners of the shares to the company, there is no easy way to resolve a deadlock. A lot of disputes arise from that scenario. The participants have not agreed on a proper structure for the business from the outset and later on when one partner decides he or she wants to leave and focus on other enterprises, a dispute arises about how to deal with that.

Another kind of dispute that business owners face involves a third party. This category includes a number of situations such as contract disputes; payment disputes where a third party fails to pay for the goods and services; and intellectual property disputes, where someone is using someone else’s intellectual property.

Ownership or shareholder disputes and third party disputes are the major categories of situations that arise in business and require dispute resolution services.

May 20, 2008, Case Management Conference

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Fri, 23 May 2008 22:40:00 +0000

On Tuesday, May 20, 2008, we appeared before Madame Justice Griffen, our assigned case management judge to discuss the next steps in the class action law suit.

After listening to our summary of the case, which the other lawyers both agreed with, Madame Justice Griffen directed the following:

(1) that the defendant’s motions to strike our pleadings pursuant to Rule 19(24) be set down for a 2-day hearing (it has now been scheduled for September 4th and 5th, 2008);

(2) that the defendants be required to deliver a full written legal argument well ahead of the hearing; and that plaintiff will have an opportunity to respond with its full written legal argument; and,

(3) that the plaintiff be entitled to bring its application to add or substitute the representative plaintiff at the same time the defendant’s motions are heard.

If the plaintiff succeeds in these motions the next step will be the plaintiff’s certification motion.

604-688-7385

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Fri, 16 May 2008 16:15:00 +0000

Ellis Business Lawyers - New fax number

(604) 688-7385

Let’s talk it out - Negotiation and Mediation

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Tue, 15 Apr 2008 17:45:00 +0000

Published in BC Roofing Magazine - Spring 2008

Negotiation and mediation better than court to solve business disputes

As a lawyer engaged in the area of business disputes, I have experienced a shift in my practice from traditional litigation towards more flexible, cost-effective approaches to settlement, such as mediation and negotiation.

Litigation is the process of pursuing a legal contest by judicial process that is ultimately decided by a third-party adjudicator, usually a judge. Litigation is often described as a “win-lose” process, or a “zero-sum” game, with one party prevailing in the end and the other losing. As any business owner that has been faced with lawsuit knows, litigation is expensive and often everyone loses, even the victor in the court proceedings, given the high cost of legal fees and the inevitable delays involved. Other approaches to resolving disputes, such as negotiation and mediation, are often described as “win-win” processes, where both parties to the dispute have a role in creating the solution. Although these processes are often referred to as alternative dispute resolution methods, or ADR, vastly more civil cases are ultimately resolved by negotiation and mediation than by adjudicated outcome. Indeed, it is widely acknowledged that only two percent of civil lawsuits that are initiated end up in trial.

“Many a litigation lawyer
has reached settlement
of a dispute on the courthouse steps
the day a trial is scheduled to proceed
or even in the courtroom corridor
after the case has commenced.”

What is important is the approach and attitude of the professionals involved. For example, does a lawyer actively approach a business legal dispute from the perspective of traditional litigation, or does he or she approach it from the perspective of solving a problem?

Negotiation
Negotiation can lead to a settlement at almost any stage of a legal process. Typically,
negotiations in legal disputes are informal and usually occur between the lawyers involved rather than the parties themselves. Many a litigation lawyer has reached settlement of a dispute on the courthouse steps the day a trial is scheduled to proceed or even in the courtroom corridor after the case has commenced. Yet, to achieve the real economic benefits of a negotiated settlement – reduced legal costs – it is incumbent on the parties to resolve their dispute at some earlier stage.

Mediation
Mediation is a process for facilitating settlement or agreement between two or more disputants and is facilitated by a mediator who is trained to encourage dialogue between the parties and uncover the underlying interests of the parties. In mediation, the parties themselves define the terms of their agreement rather than having a decision imposed by a third party adjudicator. Business owners are increasingly recognizing the many advantages of mediation processes versus traditional litigation paths.

Advantages of mediation:
The main advantages of mediation to small businesses are as follows:

Certainty of outcome: In mediation, the parties themselves control the terms of the settlement; nothing is imposed on them by a third party adjudicator. The mediator facilitates settlement but the parties make the final decisions. Mediation, therefore, eliminates the huge factor of uncertainty that is present in all courtroom trials, given that the final outcome in a trial is within the power of the judge and out of the control of the parties.
Focus on interests rather positions: Mediation focuses on the underlying interests of the parties and attempts to create solutions that meet those interests. Skilled mediators are adept at ferreting out hidden interests that, once dislodged, may facilitate settlement. For example, a party’s concern about the confidentiality of the terms of settlement, or concern about an ongoing business relationship with the other party may be significant factors in why a case will settle in mediation. By contrast, the court process is open and adversarial which often can damage business relationships.
More durable agreements: Mediations often result in more durable agreements because the parties themselves have negotiated the terms rather than having terms imposed on them by a third party. It is presumed that parties will have a greater investment in honoring their own terms versus those that are ordered by someone else.
Cost effective and faster: Perhaps the most important reason business owners choose mediation is that it is almost always less expensive than marching on with court proceedings. A typical civil case can take years before a final outcome at trial, and even after a successful trial outcome it can take months or even years to implement or collect on the judgment. By contrast, a mediated settlement can often be resolved in one or two sessions over a few days or weeks. And the terms of settlement can be implemented immediately. Litigation is expensive, despite constant efforts by the court system to streamline procedures. The benefits of litigation can often be outweighed by its costs.
Confidentiality: Unlike most court cases, which are matters of public record, most mediation is confidential. With the advent of the Internet, the final judgment in a court case is disseminated around the world the moment it is pronounced. The terms of a mediated settlement are confidential and do not leave the mediation room.

Click here to see article.

Meldon Ellis, BA, LLB is a business dispute resolution lawyer in Vancouver. His firm, Ellis Business Lawyers (www.ellislawyers.com) practices in the areas of commercial debt collection, and business and tax litigation.

How to survive costly disagreements.

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Tue, 04 Mar 2008 07:16:00 +0000

Financial Post article. Published March 03, 2008. How to survive costly disagreements. Lawsuits over contracts or leases can be crippling for SMEs. Read the article here.

Fishing for Freedom

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Thu, 07 Feb 2008 08:47:00 +0000

Meldon Ellis speaks at Fishing for Freedom public meeting re: Halibut Class Action Lawsuit, January 27th, Richmond Inn, Vancouver, BC and January 28th, Dorchester Hotel, Nanaimo. BC. BC Fisherman v. DFO Class Action Lawsuit blog.

DFO named in fishermen lawsuit.

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Tue, 27 Nov 2007 00:13:00 +0000

DFO named in fishermen lawsuit. Read the press release here.

EBL files Class Action lawsuit.

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Wed, 21 Nov 2007 22:29:00 +0000

Ellis Business Lawyers files Class Action lawsuit against the Federal Department of Fisheries and the Pacific Halibut Management Association. Read the Statement of Claims here.

EBL wins jugdement

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Mon, 27 Aug 2007 18:11:00 +0000

British Columbia Supreme Court issues decision in Livramento v. Millennium Powder Coating Ltd. EBL helps plaintiff obtain an audit and compensation for his shares in a shareholder oppression trial. * Read the full decision here.

Legal affairs

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Wed, 15 Aug 2007 22:24:00 +0000

EBL article published in Western Investor Magazine - June 2007
Click here to download article - or read it below.

Collecting bad debts
Whether to pursue a bad debt or not is a delicate commercial balancing act. As commercial debt grows in Western Canada, so should business owners’ awareness about bad debt preventive measures, as well as an understanding of effective collection processes.

Preventive measures
Keeping extensive, accurate documentation of transactions is a critical commercial practice. These documents not only provide clear initial notice of non-payment, but also strengthen any subsequent claims made against a debtor whether as evidence in court proceedings or just as supporting documentation to a letter of demand.

Early warnings
The following actions of the customer are often warning signs to a business that a bad debt is looming:

• Failure to return phone calls and correspondence;
• delaying tactics such as breaking promises to pay;
• disputing specifications only well after the invoice becomes due; and
• claiming financial difficulties without specifics.

Collection agencies
Once a creditor has exhausted their lines of communication with a debtor, a collection agency may be engaged on their behalf who will generally work to collect the debt on contingent fee basis for a percentage (often 50 per cent) of monies recovered. However, a large number of debtors will not respond to a collection agency.

The legal route
When a collections agency cannot persuade a debtor to pay, it may be time to consult a lawyer to analyze the pros and cons of filing a writ in Supreme Court (for claims over $25,000 in British Columbia) or a notice of claim in provincial (small claims) court (for claims under $25,000 in B.C.) excluding interest and court costs.

The small claims court system in B.C. has settlement opportunities, including mediation and a mandatory Settlement Conference before trial. These can be used to resolve claims much more quickly than Supreme Court procedures.

A creditor with a claim resting on the $25,000 threshold may want to consider waiving (or giving up) its incremental amount over $25,000 in order to file in provincial court and take advantage of the more cost-effective and efficient procedures.

Pre-judgment
In both levels of court, there are pre-judgment remedies that may leverage a debtor into paying before reaching the lengthy and costly trial procedure. These include:

Pre-judgment garnishing order: A garnishing order from the court allows a creditor to collect money owing to the debtor directly from a person (the ‘garnishee’) who owes money to the debtor.
Preservation of property: A creditor’s lawyer may apply for the detention, custody or preservation of property. Aside from securing the amount in dispute, this tactic may force a debtor into settlement discussions. The Rules of Court also allow for the appointment of a receiver to recover payment of debts from the debtor’s assets in certain circumstances.
Default and summary judgments: Once a claim is filed and served on the debtor, the debtor has a finite amount of time within which they must file a response. If there is no response by this deadline, the creditor may apply for default judgment against the debtor.
Other pre-judgment securities: If there is concern about the debtor having significant assets that may be disposed of, or taken out of the jurisdiction prior to judgment, interim orders can be obtained upon application to the court to prevent this. These options should be explored at the initial stages of deciding whether to file suit.

Going to trial
While the judgment of a court is a weapon against a debtor, it can often be a blunt weapon. There are a number of reasons that a creditor may wish to resolve its collection matter before reaching trial, including the following:

Diversion of time and resources of the creditor towards a court proceeding rather than the creditor’s daily business affairs;
lengthy delays before the matter is resolved;
no guarantee of outcome;
further delays before the debt is recovered after judgment;
delays caused by debtor relying on bankruptcy provisions to avoid payment; and
limited recoverability of the judgment debts.

Mindful of these potential difficulties, the best measures are preventive, but when collectors fail, it is time to call in legal team Lower Mainland creditor’s lawyer will assess whether going to trial is the most appropriate course of action.

The good news is that a court judgment will permit a creditor to enforce both pre- and post- judgment interest on the outstanding debt.

Getting paid
While obtaining a judgment does not guarantee payment of a debt, the advantage of receiving a court order is that the following enforcement options become available to the creditor once judgment is rendered:

Debtor examinations;
Debtor subpoenas;
Committal for contempt;
Execution against personal property;
Execution against real property; and
Post-judgment garnishment on any monies owed to the judgment debtor, e.g. wages.

Again, these procedures do not guarantee payment, but can exert significant pressures on the judgment debtor.

Statutory limits
A creditor must be aware that it only has six years from the date of the debt in which to bring an action in court against the debtor in B.C. In determining the date of the debt, it is safest to assume that the limitation period commences from the date that the payment became due as stipulated on the creditor’s invoice.

The unfortunate reality is that rarely will the creditor recover all of the expenses they incur in collecting a debt.

Conclusion
The bottom line is that it is always preferable to manage the accounts receivable to avoid or limit bad debts rather than allowing them to accumulate.

The burden is always on the creditor to prove the agreement and the debt, so there is nothing stronger than an organized system and proper documentation.◆

Meldon Ellis, BA, LLB, is a business dispute resolution lawyer in Vancouver. His firm, Ellis Business Lawyers (www.ellislawyers.com), practises in the areas of commercial debt collection and business and tax litigation. Phone 604-688-7374.

Ellis Business Lawyers - New Address

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Wed, 15 Aug 2007 19:05:00 +0000

New address and contact information for Ellis Business Lawyers.

#440-319 West Pender Street,
Vancouver, BC
V6B 1T3

T (604) 688-7374 or (604) 671-7374

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Tue, 20 Feb 2007 18:41:00 +0000

Today's post will highlight events in a recent B.C. Supreme Court trial inwhich Meldon Ellis represented the plaintiff, one of two 50% shareholders ina B.C. company.

During the trial, Mr. Ellis argued that the conduct the defendantshareholder, who also was the company’s sole director, was “oppressive”under the B.C. Business Corporations Act and that as a result of thisoppressive conduct the company should be dissolved and all its assetsdistributed to the shareholders. The oppressive conduct alleged by theplaintiff included the company’s failure to hold an annual general meeting(AGM) and its failure to provide the plaintiff with audited financialstatements. An AGM and audited financial statements are mandatory under theBusiness Corporations Act (the Act) http://www.qp.gov.bc.ca/statreg/stat/B/02057_00.htm
unless these requirements are waived byunanimous consent of the shareholders.

Mr. Ellis argued that there are two fundamental rights of every shareholderin a B.C. company: (1) to vote his shares at an AGM to elect a Board ofDirectors; and (2) to be provided with audited financial statements of thecompany. A company’s failure to meet these requirements, Ellis argued, is“oppressive conduct” under the Act and should lead to either a court-ordereddissolution of the company or other court-imposed remedies, such as a orderrequiring one of the parties to buy the others’ shares at fair market value.

The evidence presented at trial clearly established that the plaintiff hadnot received notice of any AGM (nor was any AGM ever held), had not receivedhis original share certificate and had not received audited financialstatements. The evidence also established that the plaintiff had worked inthe business for almost two years without compensation before he wassqueezed out by the defendant shareholder in 2002. Since that time, theDefendant had been paid over $150,000 in wages from the company, had enjoyedthe exclusive use of a company vehicle purchased and maintained by thecompany and had paid the lawyer representing him in the within litigationusing company funds.

The defendant argued that the simple failure to hold AGMs or to provideaudited financials cannot be considered oppressive under the Act, as theseare merely formal requirements. The defendant conceded at trial that theplaintiff was indeed a 50% shareholder in the company but he argued that theplaintiff should get less than 50% of shares because his initial cash contribution was about $10,000 less than the defendant. The defendantsubmitted that the plaintiff should only be paid back the amount of hisinitial capital investment in the company and that he should have nointerest in the company’s assets beyond that.

The court reserved judgment.

Ellis Business Lawyers: Website Completion

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Fri, 26 Jan 2007 21:23:00 +0000

The Ellis Business Lawyers website has now been completed. The website includes information about the two lawyers of the firm: Meldon Ellis, and Leslie Brunanski.

It can be found here:
http://www.ellislawyers.com

Moreover, Meldon Ellis' personal site can also be accessed here:
http://www.meldonellis.com

The law firm focuses on managing your legal issues in the most effective manner possible. We approach your situation from the perspective of a business owner and put our legal skills and experience to work for you to accomplish your overall business objectives. In addition to offering alternative dispute resolution strategies and advocacy we also frequently act for BC businesses in litigation matters, including contract disputes, tax litigation and shareholder actions.

We provide a range of British Columbia collections law services for both domestic and international clients including advice and legal representation in commercial debt collection and retail and consumer debt collection matters.

If you wish to contact Meldon Ellis: meldon@ellislawyers.com
If you wish to contact Leslie Brunanski: leslie@ellislawyers.com

Modernizing B.C.'s civil justice system includes pilot project aimed at streamlining procedure

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Tue, 10 May 2005 21:48:00 +0000

After September 1, 2005, the Expedited Litigation Project Rule will come into force and will apply to civil actions started in Supreme Court registries in Vancouver, Victoria, Prince George and Nelson. Embodied in Rule 68, this two year pilot project will apply to civil claims valued at $100,000 or less, excluding family law matters and class proceedings under the Class Proceedings Act. The procedural framework may also be used by parties to litigation where claims exceed $100,000 provided all the parties to the litigation agree.

The project is part of B.C.'s ongoing initiative to improve access to justice and addresses concerns raised in the BC Justice Review Task Force Green Paper "The Foundations of Civil Justice Reform" (click HERE for access to the paper).

Rule 68 is designed to provide relief from delay, cost and complexity of the litigation process by simplifying pre-trial procedures and giving judges greater discretion to define appropriate limits on the process. Judges are also given discretion to assist the parties to define and narrow the issues in dispute and prepare cases for trial.

Key features include:

o Limits on interlocutory applications unless a case management or trial management conference has been held.
o Limits on examinations for discovery and discretion for judges to impose time limits on the examination of witnesses at trial and on opening and closing statements.
o Greater pre-trial disclosure obligations including sharing documents lists, witness lists and “will say” statements for witnesses the parties intend to call.
o Limits on the type and quantity of documents that must be listed and produced before trial and the timing of contested interlocutory applications.
o Judges may be more proactive at case management conferences to help the parties define the issues and prepare the case for trial.
o Jury trials will not be allowed.
o Trial management conferences will be held at least 2 weeks before trial and parties will be required to exchange detailed trial briefs at least one week before the trial management conference.

Click HERE to read the full text of Rule 68.

BC's small claims court limit raised to $25,000 effective September 1, 2005

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Mon, 04 Apr 2005 17:08:00 +0000

The provincial government has raised the monetary limit for small claims court in British Columbia from $10,000 to $25,000. The change is scheduled to take effect September 1, 2005. To learn more about the change, click here.

BC’s New Business Corporations Act – Selected Highlights

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Wed, 01 Sep 2004 21:45:00 +0000

New legislation governing British Columbia companies came into effect in March 2004.

The new law – the “Business Corporations Act” replaces B.C.’s previous company legislation (the “Company Act”) and gives existing companies that were previously subject to the old law two years to make certain required transitions.

Generally speaking it will be prudent for many companies to make the required transition sooner rather than later, and failure to take the necessary steps within the two year window is grounds for the Registrar to dissolve a company.

Some other noteworthy elements of the new law:

1. The residency requirement for directors has been removed;

2. Shareholders’ meetings by teleconference are permitted at the company’s option and annual general meetings may be waived or postponed under certain circumstances;

3. More of the required company forms can now be filed electronically through the new Corporate Online system

For more information about the new law and how it affects your company, contact info@ellislawyers.com or your current business lawyer.

Recent Devlopments at Ellis Business Lawyers, July 29, 2004

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Thu, 29 Jul 2004 20:57:00 +0000

Meldon Ellis is pleased to report the following recent developments at Ellis Business Lawyers:

* On the litigation front, we have taken on new work in the areas of corporate, commercial litigation as well as franchising and federal taxation.

* We have initiated a program of flexible billing and contingency billing where we will earn our fees based on successful outcomes in the litigation. A number of clients have opted for these arrangements that are rarely found outside of the realm of personal injury litigation.

Welcome to the BC Business Law Blog

noreply@blogger.com (MELDON ELLIS — BA, LLB, Attorney and Barrister & Solicitor) — Wed, 21 Jul 2004 19:51:00 +0000

The BC Business Law Blog is a free online service provided by Meldon Ellis and Ellis Business Lawyers. It is intended to serve as an information resource for small and mid-sized businesses and the B.C. legal community.