Project 1 BUSI 112

David S. Park
4004828
November 9th, 2021
UBC Sauder
PART A

1.

a)
He should go to the police to give more information and ask to press charges. This would start
locally first, with the police taking all the basic information about the incident, parties involved and
other relevant information. Both you and your neighbour might have legal representation and will seek
to discuss the situation. This is a case that belongs in the provincial court, in the small claims division,
as the damages caused by the neighbour and dog is likely less than $25,000. If you go further and press
for criminal charges, the opposing lawyers should/will appeal this decision and would go to the
Provincial Court of Appeal. Although the lawyers can make this appeal, it is not guaranteed the appeal
will be successful. If the appeal is not successful, a further right of appeal to the supreme court of
Canada can be made. However, it is also incredibly unlikely that this matter goes up that far, as The
Canadian Supreme Court only concerns themselves with matters of utmost importance. While the
windows may be important for that homeowner, for the entire nation as a whole, it is not. If criminal
charges are actually pressed, then it will likely be dropped or dismissed, at least in this situation. To say
the an actual crime was committed here is far fetched, as the damage was minor.

b)
Civil and criminal proceedings differ in many ways [1], being that criminal law is public law and
civil law is private law. As this issue is only between the person with the broken windows and his
neighbour, and not involving the public, this issue would be a civil case. Civil cases are between the
Plaintiff and the Defendant while criminal cases are between the Crown and the Accused. The plaintiff
would be person A or you, suing for the damaged windows, and the neighbour would be the defendant.
The burden or standard of proof or the balance of probabilities is different for the two cases. In
a criminal trial, it must be proven beyond a reasonable doubt that said accusation is indeed true. For
example, a person standing on trail for murder can only be guilty if there is absolute concrete evidence
that said person committed that crime. This is not the case for civil cases; the plaintiff needs to prove
his case on the balance of probabilities. Perhaps the plaintiff can say that it is highly likely that his
neighbour would commit such an action due to his personality. Or maybe that the position he was at
when the dish was thrown at him was such that hitting a window is very likely.
The remedies or objectives for the two cases are different. The objective of criminal law is to
give punishment based on the crime, usually by going to prison for a period of time. Civil law seeks
compensation, such as money, or a specific court order, called an injunction, to recover whatever
damage of any kind that was inflicted. It is still possible to be jailed for contempt of court during a civil
trail. For example, the court could decide that in addition to financial compensation, the defendant must
help the plaintiff repair his windows.
As previously mentioned, this would be a civil case and is most suited in the provincial small
claims court. It is highly unlikely that the damage done to the plaintiff is greater than the $25,000 limit,
and such makes the most sense to sue in this court. Cases in the small claims court are generally much
faster and cheaper with it being possible to be your own legal representative. Why hire a lawyer when
the case is simple and the facts are clear.
c)
For this trail, the facts are such that both civil and criminal arguments can be made. The person
has its windows broken by the neighbour and can seek a civil trail to recover the damages done to his
windows, usually financial compensation. Also, the neighbour could face criminal charges for his
action of throwing his dog’s food dish. It is safe to say that he didn’t do this for the plaintiff's benefit
but more likely out of malicious intent, or maybe out of pettiness. O.J. Simpsons murder trail is
probably the most famous example.

2.

a)
It says in the question that I intentionally provided false information. I am clearly making a
false representation on what that property actually is and so I am liable for any damages. The client has
every right to sue for damage and void the contract. If I lose the trial, which is likely, than I will be
responsible for any court costs that accrued during the case. Depending on the situation, I might lose
my real estate license by the real estate board. It will depend on past history and performance, along
with various other factors. Even assuming that I can keep my license, my reputation would be severely
damaged. It would be difficult to find any clients as contract breaches like these are sure to be found
out in the industry.

b)
The best possible claim to make in this situation is a private nuisance claim. She would have to
somehow prove that actual damage was done; that her plants dying are the direct result from the 8ft
screen. Maybe she could do some specific research about the plants that died, such as what the
necessary nutrients/sunlight are required to keep them alive. She could film the area which her plants
died throughout the span of the day, to calculate just how long that area is exposed to sunlight. If the
amount of time that area exposed to sunlight is less than the amount of sunlight required by the plants
to survive, she could maybe make a case. She can also film the instance where the yellow flowers from
the vines fall to the paving stones, and take a photo of the stain. Maybe she can take a wider photo of
the paving stones to see multiple stains scattered on the area for greater effect.
Another option can be that if she can show that the vine screen is so tall that it interferes with
her airspace area. Through this, she can make a claim that the neighbour is imposing on her proprietary
rights and sue for damages. This option seems to be the less likely option of the two, as a more
compelling case can be made for the damages done to her plants.

c)
The 2 essential elements of Joint Tenancies are the right of survivorship and the four unities.
The right of survivorship means that upon death of one co-owner, the ownership rights will go
completely to the surviving co-owner. The four unities that form a co-ownership are the unity of
possession, time, title and interest. These elements must exist for a joint tenancy to exist, otherwise it is
known as a tenant in common.
Originally, person A had joint tenancy ownership with the daughter. If the person is to sell the
unit to someone else, joint tenancy is severed and that person and the daughter will be tenants in
common. By selling the condo, A severs the joint tenancy and relinquishes control of 1/2 of the unit.
The unity of time and title is not consistent and further shows that joint tenancy has been severed. Let’s
say A sells the condo to person B, that means by selling the unit to B, person A is also giving 1/2
ownership to person B. Since the daughter already has 1/2 ownership of the unit, with the joint tenancy
being severed, person B will now be a tenant in common with the daughter. Person B and the daughter
are not in joint tenancy, as that was only between the daughter and person A.
However, this is assuming that you won’t receive any pushback from the daughter. From the
daughter’s perspective, this is unfavourable as her right of survivorship that is attached with the unit
will be revoked if the joint tenancy is severed. Being tenants in common does not guarantee her
ownership of the unit if Person B passes, rather than if the father were to pass.

d)
First we have to determine whether the screen is a fixture of chattel. Fixtures are items that are
affixed to the soil and can be considered part of the land. Chattels are personal property that is not
affixed to the property. Whether the screen is a chattel or a fixture will depend on the degree of
affixation. If the screen is placed deep into the foundation, the screen cannot be realistically removed
and so would be considered a fixture. This cannot be taken with the previous owner and so this will
pass with the land to the new buyer. On the other hand, if the screen was put up using rope, or if it is set
up with easily removable pegs, then it would be considered a chattel. In this case, the previous buyer
can take the screen with them and will not pass to the new buyer. In this situation, the screen is most
likely a chattel and so will not pass onto the new buyer. However, if the screen was mentioned in the
original purchase and sale, both parties have agreed that this screen is included in the deal, and so the
new buyer has the right to keep the screen. Despite the screen being a chattel, it will pass onto the new
buyer.

PART B

1.

a)

i) Type of property: The title is issued under the STRATA PROPERTY ACT (Section 249). Also,
given how there is a unit number, this is likely a condo/apartment.

ii) Interest Purchased: Fee simple ownership

iii) Legal description: LOT 18 South East 3 Section 35 Campbell River District Plan 10212

iv) Municipality: City of Campbell River

v) Current registered owners: Aubrey Hughes and Pat Hughes as Joint Tenants

vi) Date of application entered: 2007 – 04 – 10

vii) Declared value when acquired by owners: $ 375,500

viii) Pending applications: None

ix) Charges against the property: 2 charges, the nature is that of an Easement and Claim of Builders
Lien

x) Location of the duplicate certificate of title: None outstanding

b)
Easement

An easement allows someone limited use of another person’s land for their own benefit. This
contract is separated into the dominant and servient tenement. The dominant tenement is the property
or person that enjoys the benefits of the easement. On other hand, the servient tenement is the property
or person in which is allowing the said benefit to be used. For example, a property in a rural area may
be such that they don’t have a driveway that leads directly to the road. Instead, the driveway links to
their neighbour’s driveway which does link to the road. For the person to use his neighbour’s driveway
to access the road, an easement must exist that allows the person that right. The dominant tenement
would be the property that is able to use the driveway, while the neighbour’s property would be the
serviant tenement as its driveway is being used. Since this title search shows an easement exists, further
research should be done about the specifics and the rights being granted. Depending on the nature of
the easement, the value of this property could change for the better or worse.

Claim of Builders Lien

This is a claim registered usually by builders and contractors when there are outstanding debts
that has been unpaid. If the contractors did additional work on the property to improve it in some way,
but was not paid for the work they did, a claim of this nature would likely be registered. For example, a
building company may be nearly done with a custom-built home, but the homeowner wanted some last
minute changes that will cost more. Payment has already been received assuming the original plan, but
more would have to be charged. The 2 parties “unofficially agreed” that the extra payment will be made
after the new changes are done. The home is completed, but the extra payment has not been made and
so the company issues a builder’s lien claim. The company made additional improvements that came
with more supply costs. These costs have not been paid for and so this claim is registered. This can
have drawbacks as it affects the property’s market appeal, making it more difficult to sell. Anyone
thinking of buying this property should do research and see that this claim is registered against it. This
might deter someone from buying the property until the claim is resolved. This can also make it
difficult to obtain mortgage financing, as banks will be hesitant in making loans with this claim on it.

c) According to Page 3.1/3.2 in the textbook, the seven essential elements of a contract are:

1. Offer – “I would like to pay $400,000 for your condo unit”

2. Acceptance – “I accept your offer of $400,000 by signing the contract”
3. Consideration – One person is offering $400,000, the other would be offering their condo unit.
4. Intention to enter a binding contract – Both parties are to sign a contract, the contract is useless
unless both parties signature is on it.
5. Capacity – Both parties are legal adults making their own decision in a clear headed manner
6. Legality – The $400,000 and the condo unit has been obtained in a legitimate, non-illegal manner
7. Consent – Both parties discussed in great detail prior to signing the contract. Both parties treat each
other in a friendly and respectful manner. There is clear communication between the two regarding the
deal.

With this in mind, the following example contract has been made.
Hello Mr. and Mrs. Hughes

This email is to formally put in writing the details of the offer for the condo unit #111 – 1334 Esterland
Drive Campbell River, BC V8E8T2.

As previously discussed, I (David Park) am offering $400,000 for the unit (belonging to Mr. and Mrs.
Hughes), under certain considerations. The biggest issue is that there is currently a Builder’s Lien claim
registered against the property. It shows that the additional improvements made in the basement have
not been paid for. This claim must be resolved beforehand and we will not proceed with this deal if the
claim is still present.

There is also a utility easement attached with the unit for the electrical lines to run along the walls. By
proceeding with this deal, you agree that this easement will be unchanged and will pass with the unit to
me, the new buyer.

If this deal is to be accepted, the payments will be made in 8 monthly payments of $50,000, as we
previously discussed before.

This offer will be available from 72 hours after this email is sent, after which new terms will need to be
negotiated.

If you would like to accept this offer, please reply back to this email or call at 123-456-7890 to let me
know your decision. Afterwards, we can have the broker (Mr. Smith) draft a contract where we can
both put our signatures.

Please do not hesitate to contact me regarding any questions, comments or concerns you may have.

Thank you,

David. P

The first main assumption is that the easement details are made up. This is done because the
details of the easement were not mentioned in the title search. Also, another assumption was made that
prior to this email; the 2 parties have already discussed the deal before hand and made some
agreements already. One is that the payments will be made in 8 monthly payments and not as one lump
sum. This is to very roughly simulate how payments are rarely made in one total payment, but over a
span of time. Finally, the last assumption is that there is a real estate broker that is helping facilitate this
deal, and that both parties consent to this broker being the representative.
d)

i)
The owner of this property can give Betty life estate, with the rest to be given to the half sibling.
A life estate is a type of ownership that lasts the lifetime. Since the lifespan of an individual varies, the
duration of the ownership is indefinite, as in until the person’s death. Afterwards, the property either
reverts to a fee simple ownership, or it can pass on to the person named as the remainderman. Since the
original homeowner does not want Betty to sell or give the property to anyone else, they would give
her life estate. The homeowner can make a statement something like “When I die, my property is to be
given to my wife, Betty, for the rest of her life as a life estate. The remainder is given to Betty’s half
sibling *insert name here*”

ii)
The life tenant is responsible for any utility expenses related to the property, including the
heating bill. The remainderman, Betty’s half sibling, is responsible for the insurance bill and the
remaining portion of the mortgage.

iii)
Betty is able to commit the 3 common waste types, voluntary, permissive and ameliorating.
However, she is still unable to commit equitable waste. Equitable waste is when the life tenant causes
damages or destruction to the property in a malicious manner. Although she is the life tenant, she will
still be liable for equitable waste. Only way she can would be if the will had a specific clause stating
something like “the life tenant cannot be held liable for all types of waste, including equitable waste.”

Question 3 was done instead of Question 2.

Question 3 - Misrepresentation

1. Moore v. Sweet [3]

Facts: Mr. Moore bought life insurance policy for $250,000 and made his wife at the time, Ms. Moore,
the sole beneficiary. A verbal agreement was made in year 2000 saying that Ms. Moore would pay all
yearly premiums in exchange for Mr. Moore keeping Ms. Moore as the sole beneficiary. The couple
officially divorced in 2003. Mr. Moore moved in with Ms. Sweet in 2000 and soon after made her the
“irrevocable beneficiary” despite agreeing to keep Ms. Moore as the sole beneficiary. Ms. Moore did
not find out she was removed as the beneficiary until Mr. Moore’s death in 2013. Ms. Moore sued Ms.
Sweet for $250,000, the value of the policy. Both Ms. Moore and Ms. Sweet agreed that the verbal
agreement between the Moores back in 2000 was a valid contract.

Issue: Whether the Insurance Act give Ms. Sweet legal basis to keep the money, or whether it should
be given to Ms. Moore.

Decision: The trial judge ruled in favour of Ms. Moore, which the appeal court disagreed. They stated
that Ms. Moore should get the amount paid in premiums ($7,000) while the rest goes to Ms. Sweet.
Ultimately, majority of the Supreme Court ruled in favour of Ms. Moore. Ms. Moore is to get the
insurance money under a constructive trust.
Reasons: The court agreed that although Ms. Sweet is the irrevocable beneficiary of the policy, that
alone is not enough for Ms. Sweet to be allowed to keep the money. The insurance act can set how
beneficiaries are named but it does not say the new beneficiary would automatically override other
people’s rights from previous agreements. Ms. Sweet was named as the new beneficiary, but prior to
this, a verbal agreement was made between the Moores, which Ms. Sweet acknowledged that it was a
valid contract. This gives Ms. Moore’s specific rights that cannot be automatically overruled.

Ratio: For a case where someone has a pre-existing right to an insurance policy, but someone else is
named as the irrevocable beneficiary, the beneficiary is stated to be unjustly enriched and could not
keep the insurance money.

It can be said that Mr. Moore was lying when he told Ms. Moore that she will be the sole beneficiary.
Ms. Moore was under the impression that Mr. Moore was telling the truth, as she is paying the
premiums in exchange. However, Mr. Moore quickly went back on his word and made Ms. Sweet the
“irrevocable beneficiary”, without informing Ms. Moore, which ultimately resulted in this case being
created. Mr. Moore’s actions are an example of misrepresentation.

2. Michel v. Graydon [2]

Facts: Ms. Michel and Mr. Graydon were “common-law” spouses and had a child. The relationship
later ended with the child, dubbed AG, living with Ms. Michel. Mr. Graydon agreed to pay $340 a
month in child support based on his reported income of $40,000 a year. Ms. Michel lived on social
assistance and had to sign over her rights to child support to the government. When AG became an
adult, Ms. Michel found out that Mr. Graydon’s income was higher than the $40,000 he reported. Ms.
Michel has asked for the retroactive child support payments based on his real income. Mr. Graydon
argued that since AG is not a child anymore, it is too late now and that the court does not have power to
make him pay.

Issue: Whether Mr. Graydon is to pay Ms. Michel retroactive child support payments based on his real
income.

Decision: The trial judge initially ordered Mr. Graydon to pay back the child reported, which the
appeal judges argued that it was too late as the child has grown up. This went to the Supreme Court
where all the judges ruled that Mr. Graydon had to pay.

Reasons: Child support is a right that belongs to the child and cannot be negotiated by the parents. The
child should be given the same standard of living as they had when the parents were together. Parents
should be responsible for paying based on their income. Mr. Graydon knew his income was higher than
he was saying, so he should not be surprised that he had to pay more. Furthermore, Mr. Graydon knew
that Ms. Michel was living on social insurance, and instead of offering assistance, made hurtful
comments. All of this suggests that Mr. Graydon can afford to make these payments and has been
ordered to pay.

Ratio: All of the judges agree that preventing retroactive child support hurt women the most, and that
support should be limited only in cases where the law clearly says so. People shouldn’t be able to profit
from acting badly.
This case is a clear example of misrepresentation as Mr. Graydon falsely reported his income. Had he
paid the correct amount based on his real income, perhaps Ms. Michel would not have needed
additional social assistance.

3. Salomon V. Matte-Thompson[4]

Facts: Ms. Matte-Thompson has asked the Thompson’s business lawyer, Mr. Salomon, for financial
advice, regarding the trust money left by Mr.Thompson after his death. Mr. Salomon recommended Ms.
Matte-Thompson to Mr. Papadopoulos, and advised her to invest in one of the funds promoted by Mr.
Papadopoulo’s firm. Ms. Matte-Thompson has invested over $7.5 million over the years. Mr. Matte-
Thompson has told Mr. Salomon that she fears for her investments, but Mr. Salomon reassured her that
investing into this fund was the right choice. Ms. Matte-Thompson continued to invest until 2007,
where Mr. Papadopoulos and his business partner disappeared, taking some of Ms. Matte-Thompson’s
investment. Mr. Matte-Thompson sued Mr. Salomon as she stated he had failed in his duty to advise.

Issue: Court is to make a decision on who is responsible for the losses. Are Mr. Papadopoulos and his
partner responsible or is Mr. Salomon responsible?

Decision: The trial judge originally said Mr. Papadopoulos and his partner was responsible. The Court
of Appeal said the trail judge made a mistake and that Mr. Salomon is responsible. The majority of the
Supreme Court agreed with the Court of Appeal and made Mr. Salomon responsible.

Reasons: Trial judge failed to look at Mr. Salomon’s actions as a whole from 2003 to 2007. Mr.
Salomon failed in his duty to properly advise Ms. Matte-Thompson on her investments. He continued
to encourage investing in Mr. Papadoupoulos, even after Ms. Matte-Thompson saying she fears for her
investments. Furthermore, Mr. Salomons friendship with Mr. Papadoupouls put him in a conflict of
interest and made him disregard his duty of loyalty. The court agreed that Ms. Matte-Thompson would
never have invested in Mr. Papadoupoulo’s fund if Mr. Salomon had property advised her.

Ratio: Lawyers have ethical and professional obligations they must uphold. In Quebec, two of these
are the “duty to advise” and the “duty to loyalty” Mr. Salomons actions failed to uphold his duties as a
lawyer and makes him liable to any damages or compensation to be received. Even if Mr. Salomon is
referring clients to another professional, he still has to follow his professional and ethical duties.

This is another clear example of misrepresentation. Mr. Salomon has encouraged Ms. Matte-Thompson
to make investments into Mr. Papadopoulo’s trust even after stating that she is uncomfortable to do so.
Mr. Salomon knew full well about what he is doing and even accepted payments from Mr.
Papadopoulos.
 Reference

[1] Find Law. Civil cases vs. Criminal cases. https://www.findlaw.com/litigation/filing-a-lawsuit/civil-

cases-vs-criminal-cases-key-differences.html (Accessed November 9, 2021)

[2] Supreme Court of Canada. Case in Brief: Michel v. Graydon.

https://www.scc-csc.ca/case-dossier/cb/2020/38498-eng.aspx (Accessed November 9, 2021)

[3] Supreme Court of Canada. Case in Brief: Moore v. Sweet.

https://www.scc-csc.ca/case-dossier/cb/37546-eng.aspx (Accessed November 9, 2021)

[4] Supreme Court of Canada. Case in Brief: Salomon v. Matte-Thompson.

https://www.scc-csc.ca/case-dossier/cb/2019/37537-eng.aspx (Accessed November 9, 2021)