S A S Johal Enterprises Inc. v. 0899979 B.C. Ltd. and G6 Ventures (Sunset Gardens) Ltd., June 1, 2015 (unreported) – Alleged Contract for Purchase of Property – CPLs – Successful Application to Strike the Plaintiff’s Claim For Abuse of Process

Sourisseau & Co. successfully obtained an order, four weeks prior to a 10 day trial, entirely dismissing the Plaintiff’s claim for over $3M. The Plaintiff alleged a breach of contract to purchase property and filed CPLs against the subject property. We obtained a series of court orders requiring the Plaintiff to provide information and have their representatives attend for examinations for discovery. The Plaintiff breached those orders. We applied to the BC Supreme Court to have the Plaintiff’s claim dismissed and court gave the Plaintiff a further opportunity to comply but ordered that the Plaintiff comply with a set of conditions and pay our client’s special costs.

The Plaintiff continued to fail to comply with the court’s orders and directions regarding document production and examinations for discovery.

We brought a further application to strike the Plaintiff’s claim. The Court found that the Plaintiff had continued to frustrate the process of the court and had violated orders. The Court found that our clients had done all they could do to bring the matter to trial and the Plaintiff’s conduct remained egregious. The Court ordered that the Plaintiff’s claim be struck. We had previously obtained an order from the BC Court of Appeal discharging the CPLs.

S A S Johal Enterprises Inc. v. 0899979 B.C. Ltd. et al – BC Court of Appeal, May 6, 2015 (unreported) – Certificates of Pending Litigation (CPLs) – Once a CPL is Discharged By Court Order it is an Abuse of Process to File a New CPL

Sourisseau & Co. won a decision in the B.C. Court of Appeal to have Certificates of Pending Litigation filed against our client’s property discharged for being an abuse of process. We had previously obtained an order that the Plaintiff post security of $150,000.00 to maintain their CPLs against the property. The Plaintiff failed to post the security as required by the order and their CPLs were discharged. The Plaintiff then filed new CPLs in the Land Title Office two days later and subsequently posted the security called for in the order. On an application to have the new CPLs removed, the Plaintiff argued that as it had subsequently posted the security, our clients were in the same position as if the Plaintiff had complied with the original order. The Chambers Judge declined to discharge the new CPLs.

Because of the nature of the Supreme Court order that resulted in the discharge of the CPLs initially, that order did not include an injunction to prevent the Plaintiff from filing further CPLs as is typically the case. Despite the lack of injunction against the Plaintiff, the Court of Appeal accepted our argument that once the CPLs had been discharged pursuant to a court order, the Plaintiff had no right to file further CPLs against the property and that doing so was an abuse of the court’s process and unlawful self-help.

A & G Investments Inc. v. 0915630 B.C. Ltd., 2014 BCCA 425

Real Estate Litigation – Repudiation of a Contract – Contractual Interpretation

Our client sold development property to the Plaintiff which was being developed into building lots. The Plaintiff buyer sought to get out of the deal prior to closing, first on the basis of a breach of the Real Estate Development and Marketing Act (REDMA) and later claiming a condition precedent had not been fulfilled causing the contract to lapse. Our client accepted the repudiation and kept the deposit of $680,000.00. The Plaintiff sued for return of the deposit and, at a summary trial (view Reasons for Judgment on Summary Trial) we were successful in having the Plaintiff’s claim dismissed. The Plaintiff appealed and we were successful in having the appeal dismissed and confirming our client’s entitlement to keep the deposit with costs throughout (view Reasons for Judgment dismissing the Appeal).

A & G Investments Inc. v. 0915630 B.C. Ltd., 2014 BCCA 425

Real Estate Litigation – Repudiation of a Contract – Contractual Interpretation

Our client sold development property to the Plaintiff which was being developed into building lots. The Plaintiff buyer sought to get out of the deal prior to closing, first on the basis of a breach of the Real Estate Development and Marketing Act (REDMA) and later claiming a condition precedent had not been fulfilled causing the contract to lapse. Our client accepted the repudiation and kept the deposit of $680,000.00. The Plaintiff sued for return of the deposit and, at a summary trial (view Reasons for Judgment on Summary Trial) we were successful in having the Plaintiff’s claim dismissed. The Plaintiff appealed and we were successful in having the appeal dismissed and confirming our client’s entitlement to keep the deposit with costs throughout (view Reasons for Judgment dismissing the Appeal).

Article: The Doctrine of Deliberative Secrecy: Hurdles to the Examination of Tribunal Members

This, published in the March 2014 CBA National Administrative Law Newsletter, examines the doctrine of deliberative secrecy and explains some of the hurdles to the under-oath examination of tribunal members or staff.  The doctrine of deliberative secrecy protects government decision makers from having to testify about how or why they made their decisions.  The article explains how litigants with valid reasons for believing that the process followed did not comply with the rules of natural justice, can circumvent the doctrine and force tribunal members or staff to testify about the processes they followed.  This evidence can be critical to the success of an administrative law case.  View Article

Article: Limitation Periods in Debt Instruments

Georges Sourisseau and Russell Robertson recently co-wrote and presented a paper at the 2013 Residential Real Estate Conference put on by the Continuing Legal Education Society of British Columbia.  The article summarizes the limitation periods for various debt instruments which may be used in real estate or other transactions in British Columbia such as mortgage-backed loans, common loans, promissory notes and guarantees.  It also lists the limitation periods under both the old Limitation Act and the new Limitation Act which came into force on June 1, 2013.  The article was published with the course materials by CLE.  View Article