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Committeeship

2019-03-08T04:31:03Z

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A committee is a last resort option when someone becomes mentally incapable. A committee can make decisions for someone else who can’t make decisions for themselves. Learn how committeeship works.

==Understand the legal framework==

===A committee is appointed by the court===
Once an adult becomes mentally incapable, they usually aren’t in a position to make important decisions for themselves. A '''committee''' (pronounced caw-mi-tay, or caw-mi-tee, with emphasis on the end of the word) is a person appointed by the BC Supreme Court to make personal, medical, legal, or financial decisions for someone in BC who is mentally incapable. The court can appoint more than one person as committee.

Appointing a committee is a serious legal step because it takes away a person's right to decide things for themselves. It is intended to be used as a last resort.

Our information about [[Power of Attorney and Representation Agreements (Script 180)|powers of attorney and representation agreements (no. 180)]] explains how you plan in advance, and avoid committeeship.

===A committee can only be appointed for someone who is mentally incapable===
Anyone who suffers from a mental illness or handicap, a head injury, a degenerative disease, or some other kind of disability may not be mentally capable to make decisions about their personal, medical, financial, or legal affairs. In the extreme case, a person may be unconscious and completely unable to communicate or decide anything. Someone who is mentally incapable may lose track of bank accounts, forget to pay bills, be unable to decide where and how to live, or be taken advantage of and abused. In these cases, appointing a committee is one possible solution.

===There are two types of committee===
A '''committee of person''' can make only personal and medical decisions, including decisions about where the person will live or whether to accept health care treatment. Usually a family member or close friend will fill this role. Only the court can appoint a committee of person.

A '''committee of estate''' can make only financial and legal decisions. A family member or close friend, a trust company, or the Public Guardian and Trustee of BC can fill this role. A committee of estate can be appointed by the court. The Public Guardian and Trustee can also be appointed as committee of estate by a certificate of incapability under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-6/latest/rsbc-1996-c-6.html Adult Guardianship Act]''. No one else can be appointed this way.

Often, people lose capacity to manage their financial and legal affairs before they lose capacity to manage themselves, so a committee of estate is more common that a committee of person. For example, a person may know how to cook and bathe, but not how to handle banking and legal affairs.

===Committees appointed by the court are sometimes called private committees===
Committees (other than the Public Guardian and Trustee) are sometimes called '''[http://www.trustee.bc.ca/services/services-to-adults/Pages/private-committees.aspx private committees]'''. The Public Guardian and Trustee [http://www.trustee.bc.ca/Documents/STA/When_the_PGT_is_Committee.pdf may apply to court to be the committee] if no suitable person is willing to act.

===You can choose your own committee while you’re still capable===
If you're mentally capable, you can name (nominate) someone you want to be your committee if you ever need one. Then, if you later become mentally incapable, the court will appoint that person unless someone can show there's a good reason not to. It is best to see a lawyer if you want to do this because there are specific legal requirements.

===The role of the Public Guardian and Trustee===
The Public Guardian and Trustee is an entity independent of the BC government, with offices in Vancouver, Victoria and Kelowna. One of its duties is to [http://www.trustee.bc.ca/Documents/STA/When_the_PGT_is_Committee.pdf be committee] when no other suitable person is willing to be committee. It charges fees, set by regulation, for this service. If you think a person needs a committee and you cannot do the job, or if there is a family conflict, you should contact the Public Guardian and Trustee.

The Public Guardian and Trustee also reviews all court applications to appoint a committee and makes recommendations to the court about the applications. The recommendations include whether a committee should post a security bond or have only limited access to the person’s assets.

The Public Guardian and Trustee also [http://www.trustee.bc.ca/services/services-to-adults/Pages/private-committees.aspx reviews all committee accounts], decides on payments to committees, and receives and investigates reports of abuse and mismanagement by committees.

The [http://www.trustee.bc.ca/reports-and-publications/Pages/when-the-pgt-is-committee.aspx Public Guardian and Trustee] has the necessary forms, samples of accounts committees must keep, and a [http://www.trustee.bc.ca/Documents/PCS/PCS%20Handbook.pdf handbook for private committees]. For more information, or to ask them to send you these documents, call 604-660-4444 in the Lower Mainland. Elsewhere in BC, call Service BC at 1-800-663-7867 and ask for the Public Guardian and Trustee. You can also email the office at [mailto:mail@trustee.bc.ca mail@trustee.bc.ca].

==What a committee should know==

===Applying to become a committee===
You might want to be a committee if one of your family members or close friends has lost the mental capacity to make important decisions and you want to help.

To become a committee, you must apply to the [http://www.courts.gov.bc.ca/supreme_court/ BC Supreme Court] to be appointed by an order under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-349/latest/rsbc-1996-c-349.html Patients Property Act]''. But first, you must confirm that the person is '''mentally incapable'''. The person's doctor may be able to help you do that. A committee can be appointed only if two doctors say the person is mentally incapable.

A lawyer can help you with the required court documents. If you're applying to be committee of estate, the doctors’ statements must say the person is not able to manage their financial and legal affairs and explain why. If you're applying to be committee of person, the doctors' statements must say the person cannot manage their personal and medical decisions and explain why.

The person must be notified of your court application unless the doctors say it would be harmful to them. Sometimes the person will oppose the application. You should also notify the person’s family members, and if you can, get their consent to your application.

Give the lawyer as much information as you can about the medical condition and financial affairs of the person. Because of privacy laws, some financial institutions may not want to give you information.

When the paperwork is ready, a lawyer can help you apply to court for an order to appoint you as committee. A lawyer can also advise you on how to act as committee.

Depending on the value of a person’s assets and income, and other circumstances, the court may order you, as committee, to post a '''security bond'''. The security bond and other expenses a committee incurs acting for the person usually comes out of the person’s (and not the committee’s) pocket.

====If the person becomes capable again====
They or you can apply to court to end your role as committee. You may have to get court approval of your final accounts for the person’s estate — unless the newly capable person agrees you do not have to.

====If the person dies====
Their [http://www.trustee.bc.ca/Documents/PCS/Your%20Role%20After%20an%20Adults%20Death.pdf committee continues to act for them] until an executor or administrator is appointed for the deceased person.

The Public Guardian and Trustee [http://www.trustee.bc.ca/services/services-to-adults/Pages/private-committees.aspx reviews all court applications to be appointed committee and monitors committees].

===A committee has broad powers and important duties===
Generally, a committee has the same powers to deal with a person's estate (that is, their money and property) and affairs as the person has when they are capable. But there are some things a committee can't do for a person: for example, a committee can’t change a person’s will, vote in a general election, or consent to marriage.

====A committee must act in the person’s best interests====
A committee has a '''fiduciary responsibility'''. A committee must put the person’s interest ahead of their own. They cannot mix the person’s assets with their own. A committee must avoid conflict-of-interest situations. These are important duties and it can be hard to fulfil them.

====The court can limit a committee’s powers====
A court might say a committee can't sell any of the person's real estate without first getting the court’s permission or the consent of the Public Guardian and Trustee. Or the court may restrict access to an investment so that the committee can access only the income from the investment, not the investment itself.

====A committee has certain duties when investing====
A committee must follow the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-464/latest/rsbc-1996-c-464.html Trustee Act]'' when they invest for a person. If they invest in things the ''Trustee Act'' does not allow, they may have to pay the estate for any losses. Unless an estate is small, a committee should get professional investment advice.

====Generally, a committee can’t get benefit from their appointment====
Normally, a committee can't use the person's property or get any benefit from it. There are exceptions to this — for example, if a person’s committee is their spouse. An incapable person must still support their spouse and dependent children. So a spouse who is committee can use some of the person’s assets and income for their own living expenses. Before a committee uses their spouse’s assets or income to support a family member or themselves, they should check with the Public Guardian and Trustee or a lawyer.

===Responsibilities of a committee===
A '''committee of estate''' can be responsible for:
*handling the person's property
*doing the person's banking (this could include borrowing money for the person, though there may be restrictions on using property as security to borrow and court permission may be required)
*paying the person's expenses
*budgeting for the person's family
*selling the person's property
*entering into contracts for the person and running the person's business
*dealing with any lawsuits involving the person
*filing the person's income tax returns
*applying for pensions and other benefits for the person

Committees must keep detailed records of all the assets, liabilities, and money coming in and going out of the person's estate. They must give periodic reports (called '''accounts''') to the Public Guardian and Trustee.

The Public Guardian and Trustee:
*will review and decide whether to pass (or accept) the accounts
*decide how often a committee must file the accounts — from every six months to every five years
*receives and investigates reports of mismanagement by committees

A '''committee of person''' is responsible for making medical decisions for the person and deciding where and how the person should live.

Committees can hire professional help for tasks that require expert advice or work, but not for things that an ordinary person could do. Any professional fees paid out of the person’s money should be reasonable and necessary.

===A committee is usually paid===
A committee is paid a reasonable fee for their service. This is paid from the money and property owned by the mentally incapable person. The size of the fee depends on the size of the estate and how much work a committee must do to manage it. The Public Guardian and Trustee decides the fee each time it approves a committee’s accounts.

Committees should keep written records of the work they do and the time they spend on the estate to show what they did, why, and how. Careful record-keeping is essential for committees.

==Common questions==

===How is a committee different from a power of attorney?===
Preparing a power of attorney is easier than a committee order. The catch is that a person must sign a power of attorney while still mentally capable. So it doesn't work for a person who is already incapable.

As well, a power of attorney ends when the person who gave it becomes mentally incapable, unless it has an '''enduring clause'''. An enduring clause says that the power of attorney continues if the person becomes mentally incapable.

Finally, a power of attorney deals only with legal and financial affairs, not personal or medical issues.

===Are there other laws that promote adults’ rights to care for themselves?===
BC has the following four laws to promote adults’ rights to care for themselves. The laws aim to help people who can't make their own decisions or who could be taken advantage of by dishonest people:
*''[http://canlii.ca/t/84bw Representation Agreement Act]''
*''[http://canlii.ca/t/842m Health Care (Consent) and Care Facility (Admission) Act]''
*''[http://canlii.ca/t/84gj Adult Guardianship Act]''
*''[http://canlii.ca/t/84b2 Public Guardian and Trustee Act]''

These laws provide other ways, besides a committee order to help a person who is mentally incapable. Our information about [[Power of Attorney and Representation Agreements (Script 180)|powers of attorney and representation agreements (no. 180)]] explains how you can plan while you are still mentally capable, and avoid committeeship.

===What if the adult receives a pension from the federal government?===
If a person who becomes mentally incapable has no assets or property but receives a pension from the Canadian government (such as from the Canada Pension Plan or Old Age Security), then a [https://catalogue.servicecanada.gc.ca/apps/EForms/pdf/en/ISP-3506_OAS.pdf pension trustee] is an option. Service Canada has more on this. Call 1-800-277-9914.

==Get help==

===With more information===
The '''Public Guardian and Trustee of British Columbia''' provides information and forms relating to the committee process.
:Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
:Toll-free: 1-800-663-7867
:Web: [http://www.trustee.bc.ca trustee.bc.ca]

The '''Nidus Personal Planning Resource Centre & Registry''' has information about committeeship and personal planning alternatives.
:Web: [http://www.nidus.ca/ nidus.ca]

[updated June 2018]

'''The above was last reviewed for legal accuracy by Services to Adults, Public Guardian and Trustee.'''

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When Your Common-Law Spouse Dies

2019-03-08T03:46:54Z

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Learn your rights, and what you’re entitled to, if your common-law spouse dies. Learn what happens if your spouse left a will, if they didn’t, and if you had children.

==Understand your legal rights==

===There are different definitions of “spouse” under different laws===
If two people live together in a '''common-law relationship''', the law treats their relationship like a married relationship in many ways. But there are some differences, especially when it comes to limitation periods, and deadlines for making certain legal claims.

There are also different definitions of “spouse” under different laws. If your rights depend on a particular law, it is important to know exactly how that law defines “spouse”. The provincial ''Family Law Act'' and many other provincial laws define a “spouse” as someone who is legally married as well as someone who has lived in a “marriage-like relationship” for at least '''two years'''. The Canada Pension Plan and many other federal laws define a spouse as someone who has lived in a marriage-like relationship for at least '''one year'''.

===You may be entitled to pension and survivor benefits===
You may be entitled to '''pension and survivor benefits''' when your spouse dies. Some pension plans recognize a common-law spouse when it comes to paying out death benefits. Generally, you need to apply to the administrator of a pension plan to receive benefits.

===You may be entitled to Canada Pension Plan benefits===
You can receive '''Canada Pension Plan benefits''' if you and your spouse lived together for a year or more before your spouse’s death. Canada Pension Plan provides three kinds of survivor benefits:
*a death benefit, which is a one-time payment
*a widow or widower’s pension, which is a monthly payment
*an orphan’s benefit, which is a monthly benefit paid to biological or adopted children

You have to apply for [http://www.servicecanada.gc.ca/eng/services/pensions/cpp/survivor-pension.shtml Canada Pension Plan survivor benefits]. They will not come automatically. You can pick up an application kit from any [http://www.servicecanada.gc.ca/tbsc-fsco/sc-hme.jsp?lang=eng Service Canada] office and at many funeral homes, or you can apply online at [http://www.servicecanada.gc.ca/eng/services/pensions/after-death.shtml servicecanada.gc.ca]. Call the main federal government Canada Pension Plan office at 1-800-277-9914 if you need help.

===If your spouse left a will===
In the context of wills and estates, a spouse includes a person who you lived with for at least '''two years''' in a marriage-like relationship immediately before they died. You must have been living with them at the time of their death to be considered their spouse. A spouse can be someone of the same gender as you.

If your spouse left you a fair share of their estate in their will, you just have to go through the regular legal steps to inherit. To receive your inheritance, the will goes through a procedure called “'''probate'''” if the value of the estate is more than $25,000 or contains an interest in real estate. See our information on [[Your Duties As Executor (Script 178)|the duties of an executor (no. 178)]] to learn more about probating a will.

But if your spouse left you nothing or too little, you should talk to a lawyer right away. Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec60_smooth Wills, Estates and Succession Act]'', a court can vary the will to provide something for a common-law spouse. You must make the claim within 180 days of the grant of probate or grant of administration in British Columbia.

There’s another situation to consider. A person can have more than one spouse under the ''Wills, Estates and Succession Act''. Let’s say your spouse made a will and looked after you and your children in it. But let’s also say your spouse had another spouse or children from another relationship, and did not leave them very much or anything at all. They too can go to court to have the will changed to better look after them.

For more information on getting a greater share of a deceased person’s estate, refer to our information on [[The Disappointed Beneficiary (Script 179)|challenging a will (no. 179)]].

===If your spouse died without a will===
You should consult a lawyer if your common-law spouse has died, leaving children and no will. If your spouse dies without a will and:
*Your spouse left '''no descendants''', their estate goes to you. A “descendant” means a surviving person of the nearest generation. This will almost always be children only. It can also include grandchildren.
*Your '''spouse had descendants''', then what goes to whom depends on whether the descendants are also your descendants. If your spouse had children — all of whom are '''also your children''' — you will get the first $300,000 of the estate and half of what’s left over. The other half will be divided equally among the children.
*If ''any'' of your spouse’s children are not also your children, you get the first $150,000 of the estate. Then one half of what’s left over also goes to you. The other half is divided among your spouse’s descendants (usually their children).

You have the right to acquire the family home from the estate as part of your share.

Now, if you and your spouse lived separate or apart for at least two years, or one or both of you agreed to separate, or live apart permanently prior to the two year period before their death, you would not inherit the estate. But if you separated only a short time before, you may be able to apply for support from the estate, and you should consult a lawyer immediately.

Our information on [[What Happens When You Die Without a Will? (Script 177)|when someone dies without a will (no. 177)]] provides more detail on how an estate is distributed when there is no will.

===If you had children with a common-law spouse===
A parent is legally and morally obliged to provide for their child. Under the ''Wills, Estates and Succession Act'', a child includes the deceased person’s biological and adopted children. Step-children are not considered to be children for these purposes.

If a parent says in a will: “I leave all my estate to my children in equal shares”, that parent’s children share equally, whether they were born while the parent was married or not.

If your spouse’s will does not sufficiently take care of the needs of a child you had or adopted together, the child can apply to court to challenge the will. The ''[https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec60_smooth Wills, Estates and Succession Act]'' allows a biological or adopted child to apply to the court to change a deceased parent’s will. The court may vary the will if it does not adequately provide for the child’s financial support.

If your spouse died without making a will, any children you had or adopted with your spouse are entitled to a share of the estate under the ''Wills, Estates and Succession Act''. The amount depends on the size of the estate and whether your spouse left behind a married spouse or other children.

{| class="wikitable"
|align="left"|'''Tip'''
If you are the parent of a child born from a different relationship, or the step-parent of a child, you should have your own will prepared. This way you can ensure all of your children would be looked after in the way you would like after your death. See our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]].
|}

===If your spouse appointed a guardian in their will===
In a will, a parent or guardian of a child can designate a person who will become the '''guardian of a child''' upon the death of the parent or guardian. However, if that designated guardian then dies, the child would become a ward of the province, because a guardian appointed under a will can’t designate a new guardian under their own will. The Ministry of Child and Family Services would investigate the matter, and would not oppose a suitable person applying to the court for guardianship of a child. A lawyer should be consulted immediately if a guardian appointed under a will has died.

In situations where parents are joint guardians, and they each appoint someone else who is not necessarily the other parent to be the successor guardian in their wills, the law is not clear if guardianship would go to the surviving parent or to the successor guardian named in the deceased parent’s will. If your deceased spouse shared joint guardianship with you, but named someone else to be the children’s guardian, you should speak with a lawyer.

===Custody and guardianship of children you share with your common-law spouse===
If both biological parents are living together and no guardian has been designated when one of the parents dies, the '''surviving parent''' is the guardian of any children, whether they were married or not at the date of the death of the other parent.

If the biological parents are separated, but had lived together in a marriage-like relationship while the mother was pregnant, and the parents lived together in a marriage-like relationship after the child was born, or if both parents cared for the child regularly, then both parents are guardians of the child. If one dies, the other will automatically become the guardian of the child.

If the biological parents are separated, and one of the parents has never regularly cared for or lived with the child after the child was born, then the parent who actually lived with and cared for the child is the child’s sole guardian.

For step-children, you will have to apply to the court for guardianship of them, even if they are already living with you, if your spouse did not make a will appointing you as guardian or if they were a joint guardian with the other biological parent. You should speak to a lawyer if you have any questions about guardianship.

==Get help==

===With more information===
'''Legal Services Society''', the legal aid provider in BC, publishes the booklet “[http://www.legalaid.bc.ca/publications/pub.php?pub=347 Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce]”.
:Web: [http://www.legalaid.bc.ca/ legalaid.bc.ca]

[updated August 2017]

'''The above was last reviewed for legal accuracy by Thomas E. Wallwork, Thomas E. Wallwork Law Corporation.'''

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Charter Rights: Equality Rights

2019-03-07T06:19:16Z

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The idea that all people should be treated equally is a core value in Canadian society. In fact, equality rights are enshrined in the ''Canadian Charter of Rights and Freedoms''.

==Understand your legal rights==

===The Charter guarantees equality rights===
The ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' is part of Canada’s Constitution and protects a broad range of rights and freedoms. Among the rights guaranteed by the Charter are '''equality rights'''.

Section 15 of the Charter says everyone is equal before the law and has the right to equal protection of the law, without discrimination. The section highlights the right to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The wording of section 15 gives equality rights to “every individual”. As such, the equality rights under the Charter protect '''people''', not companies or other artificial persons.

{| class="wikitable"
|align="left"|'''Tip'''
For more on your rights under the Charter, see our [[Charter of Rights and Freedoms: Overview (Script 230)|overview of the Charter (no. 230)]] and our information on [[Charter of Rights and Freedoms: Legal Rights (Script 200)|legal rights (no. 200)]].
|}

===The Charter applies to government, not the private sector===
Section 15 of the Charter does not apply to every possible inequality in life. The Charter controls '''laws''' and '''government actions'''. It doesn’t control private citizens, businesses, or organizations. Before you can claim the protection of section 15, you must show you are being treated unequally by a law or by the action of government, or some agency very closely connected to government, such as a school board or labour relations board.

If a private individual, organization, or company violates your rights, you may be able to assert a claim under '''human rights law'''. Depending on the situation, you might be able to rely on the BC ''Human Rights Code'' or the Canadian ''Human Rights Act''. For more, see our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]], and [[Protection Against Job Discrimination (Script 270)|protection against job discrimination (no. 270)]].

===To show your equality rights are being violated===
To show your equality rights under section 15 of the Charter are being violated, there are three central issues.

First, you must show that a law or government action treats you differently from others.

Second, you must show that one of the grounds of discrimination in section 15 are the basis for the differential treatment. Section 15 prohibits discrimination because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It also prohibits discrimination on “'''analogous'''” grounds — meaning comparable grounds not listed in section 15. The courts have said that something “analogous” is a personal characteristic you can’t change at all, or you can’t change without great personal cost or difficulty — like sexual orientation or citizenship.

Third, you must show the law or government action has a purpose or effect that is discriminatory within the meaning of the equality guarantee. The courts have said a central purpose of section 15 is to promote “'''substantive equality'''” by fighting discrimination. So the courts focus on whether the law or government action is discriminatory in creating a disadvantage by prejudice or stereotyping.

===Equality does not mean identical treatment for everybody===
In certain cases, disadvantaged groups may need more services or programs. For example, courts have ruled that to ensure equal access to medical care, someone born deaf should be provided a sign language interpreter to be able to effectively communicate with their doctor.

Section 15 itself protects '''affirmative action programs'''. It says that laws or programs designed to improve the conditions of disadvantaged individuals or groups do not violate section 15. So governments can set up programs to help people or groups disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

===Equality rights under the Charter are not absolute===
Charter rights are not absolute. The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, a government can try to justify the violation as a '''reasonable limit''' under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society”.

If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at whether the law has an important objective, and whether the government chose a proportionate way to meet that objective — a way that interferes as little as possible with Charter rights. For example, could the government achieve its objective in another way, without violating equality rights? Does the law do more harm than good?

Section 1 applies only to written laws. It does not apply to '''government actions'''. An example of a government action is a decision by a government official to deny benefits. Where a government action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional.

===Remedies if a Charter right is violated===
If you prove your equality rights under the Charter have been violated, and the government cannot justify the violation as a reasonable limit under section 1, the next question is what kind of '''remedy''' is appropriate. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.

Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers appropriate and just in the circumstances. Different kinds of remedies apply to different types of cases. In some cases, a court may '''decide to declare that a law is unconstitutional'''. This is often referred to as ”striking down a law”. For example, if the government passed a law that discriminated based on gender, the court could strike down the law. In this way the remedy helps everyone affected by the law. In such a case, a court may “suspend” its declaration to give the government time to pass a new law that will be valid.

In other cases, the remedy might be to '''"read in" wording''' to a law that violates equality rights, in order to address the inequality. For example, the phrase “same-sex couples” might be read in to the definition of “spouse” in a law, to clarify that the law does not discriminate based on sex.

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier.'''

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Charter Rights: Overview

2019-03-07T06:07:00Z

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The ''Charter of Rights and Freedoms'' is one of Canada’s most important laws. Learn the key rights and freedoms protected by the Charter and how to enforce your Charter rights.

==Understand your legal rights==

===The Charter protects a broad range of rights and freedoms===
The ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' is part of Canada’s Constitution and protects a broad range of rights and freedoms.

The Charter guarantees certain '''fundamental freedoms''':
*freedom of conscience and religion
*freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
*freedom of peaceful assembly
*freedom of association

The Charter guarantees '''democratic rights'''. It gives every Canadian citizen the right to vote in federal and provincial elections. It sets the maximum time between elections.

The Charter guarantees '''mobility rights'''. It gives every citizen the right to enter, remain in, and leave Canada. It gives everyone the right to move to and pursue a living in any province.

The Charter guarantees a number of '''legal rights''', including the right to:
*life, liberty and security of the person
*be secure against unreasonable search or seizure
*not be arbitrarily detained or imprisoned
*be informed promptly of the reasons for any arrest or detention
*have a lawyer, if you are arrested
*be presumed innocent until proven guilty in a fair and public hearing by an impartial tribunal, if you are charged with a crime
*not be subjected to cruel and unusual punishment
*not have evidence you give be used against you

The Charter guarantees '''equality rights'''. It says everyone is equal before the law and has the right to equal protection of the law, without discrimination. It highlights the right to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The Charter also makes English and French the '''official languages''' of Canada.

{| class="wikitable"
|align="left"|'''Tip'''
For more detail on legal and equality rights under the Charter, see our information on [[Charter of Rights and Freedoms: Legal Rights (Script 200)|legal rights (no. 200)]] and [[Charter of Rights and Freedoms: Equality Rights (Script 232)|equality rights (no. 232)]].
|}

===Charter rights and freedoms are not absolute===
The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, a government can try to justify the violation as a '''reasonable limit''' under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society”.

If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at whether the law has an important objective, and whether the government chose a proportionate way to meet that objective — a way that interferes as little as possible with Charter rights. For example, could the government achieve its objective in another way, without violating Charter rights? Does the law do more harm than good?

Section 1 applies only to written laws. It does not apply to '''government actions'''. Examples of government actions would be the actions of a police officer in making an arrest, or a decision by a government department to deny benefits. In these situations, where a government action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional. Lawyers call this a Charter breach.

===The Charter includes a “notwithstanding” clause===
If a law cannot be justified as a reasonable limit on a right or freedom, a federal or provincial government can try to declare that the law operates '''notwithstanding''' the Charter. The Canadian Parliament has never used this notwithstanding clause, but Quebec, Alberta, Saskatchewan, and Yukon have done so.

===The Charter applies to government, not the private sector===
You can’t rely on the Charter to challenge every violation of your rights. The Charter controls '''laws''' and '''government actions'''. It doesn’t control private citizens, businesses, or organizations. Before you can claim the Charter’s protection, you must show that the government, or some agency very closely connected to government, such as a school board or labour relations board, violated your rights.

If a private individual, organization, or company violates your rights, you may be able to assert a claim under human rights law. Depending on the situation, you might be able to rely on the BC ''Human Rights Code'' or the Canadian ''Human Rights Act''. For more, see our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]], and [[Protection Against Job Discrimination (Script 270)|protection against job discrimination (no. 270)]].

===To enforce your Charter rights===
Canadian courts interpret and enforce the Charter. Courts have the power to strike down and invalidate laws or government actions. They will do so if necessary to defend a protected right or freedom. If you think a provincial or federal law or action violates your Charter rights, you can ask a court to strike down the law or grant another '''remedy'''. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.

What a court can do depends on what you ask for. You may ask a court to declare that your personal rights have been violated, or to give you a personal remedy. In criminal cases, for example, an accused person can ask the court to end the trial or to exclude evidence obtained in violation of the Charter.

Or you may ask a court for a general remedy not specific to your case, such as striking down a law entirely.

In considering a Charter challenge, the court will generally assess two questions.

====First, were your rights under the Charter violated?====
You have to show the court that one of your Charter rights was violated. This usually means persuading the judge that a law or government action violated a specific Charter right. For example, you might complain that a law restricting what signs you can put in your window violates freedom of expression. If you prove a violation, the court will move on to a second question.

====Second, can the government justify the law as a reasonable limit?====
If a court finds the government violated your rights, the next step depends on what caused the violation: was it a written law, or was it an action by government? If government action caused the violation, the government does not get a chance to justify the violation.

If a written law violated your rights, the court will then consider whether the government can justify the violation as a reasonable limit under section 1 of the Charter. Charter rights are balanced against the rights of others and the interests of society. The court will consider: Is the violation reasonable and justified in a free and democratic society? To decide that, the court looks at several things, including whether the benefits of the law are significant enough to justify violating a Charter right, and whether the government could have achieved its objectives in some other way that did not violate anyone’s rights or freedoms.

Typically, the government tries to show the law’s objective is important to Canadian society, and the violation of Charter rights is minimal. The more severe the violation, the harder it is for government to justify it. Charter cases can be hard to resolve because courts have to consider and balance many competing interests. The court must go beyond the narrow facts of one case and consider the competing interests in relation to a law and how it operates for society.

===Remedies if a Charter right is violated===
If you prove a violation of a Charter right, and the government cannot justify the violation as a reasonable limit under section 1, the next question is what kind of remedy or consequence is appropriate. Different kinds of remedies apply to different types of cases.

In some cases, a broad remedy may be necessary, such as '''declaring that a law is unconstitutional'''. This is often referred to as ”striking down a law”. For example, if the government passed a law that discriminated based on gender, the court could strike down the law, giving a remedy that helps everyone affected by the law.

In other cases, an individual (personal) remedy is ordered. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers '''appropriate and just in the circumstances'''. If a government official took the action — for example, a police officer conducted an unreasonable search — the court will often give an individual remedy that helps only the person whose rights were violated. The court may say that (for example) drugs found during an illegal search can’t be used as evidence in the accused person’s criminal trial. This helps the accused person, but it doesn’t change the law for anyone else.

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

Seniors' Rights and Elder Abuse

2019-03-06T06:12:47Z

Dial-A-Law: /* Can I change my will if my circumstances change? */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = rights}}
When someone in a trusted relationship with an older person does something that harms or distresses them, this is '''elder abuse'''. Learn what options exist if you suspect elder abuse.

==Understand your legal rights==

===You have the right to live in the manner you wish and free of elder abuse===
Under the [http://canlii.ca/t/84gj law in BC], all adults are entitled to live in the manner they wish as long as they don’t harm others and they are capable of making decisions.

Older adults, like everyone, have the right to live in safety and security. When someone in a relationship of trust with an older person does something that causes them harm or distress, this is called '''elder abuse'''.

Elder abuse takes many forms. It can be '''physical abuse''', including striking or pushing an older adult, over- or under-medicating them, or inappropriately restraining them.

It can be '''psychological abuse''' that decreases their sense of self-worth or dignity. This includes insulting or humiliating an older adult, intimidating or threatening them, treating them like a child, invading their privacy, or isolating them from friends or activities.

It can be '''financial abuse'''. This can involve misusing or stealing an older adult's assets or money, pressuring them to change a will or sign legal documents they don’t fully understand, or sharing their home without paying a fair share of the expenses when asked.

It can take the form of '''neglect'''. This is a lack of action that harms an older person, such as not providing appropriate food or shelter, medical attention, or assistance with basic necessities.

Often, more than one type of abuse occurs at the same time. Abuse can be a single incident or a repeated pattern of behaviour.

===If an older adult is being abused===
If you or someone you know is in immediate danger, '''dial 9-1-1''' or call the emergency number listed in the front of your phone book.

In non-emergency situations, there are many organizations that can help abused or neglected older adults or their friends and family get help and protection. The '''BC Association of Community Response Networks''' are people working on a local level to help coordinate community response to elder abuse. Their website at [http://www.bccrns.ca bccrns.ca] features a way to search for contacts and supports in your community.

'''VictimLink BC''' is a toll-free, confidential, telephone service available 24x7. They provide information and referral services to all victims of crime and immediate crisis support to victims of family and sexual violence. You can contact them at 1-800-563-0808 or [http://victimlinkbc.ca victimlinkbc.ca].

====If the adult can’t seek help on their own====
An older adult who is struggling to manage on their own is particularly vulnerable to abuse.

If you have concerns about the health and safety of an adult, or suspect they are being abused or neglected, you may make a confidential report to a “'''designated agency'''”. The designated agencies in BC are the five regional health authorities, Providence Health Care, and Community Living BC (for adults with developmental disabilities). If a designated agency receives a report, it will investigate and offer support and assistance to the adult, or take steps to protect the adult. The Public Guardian and Trustee of BC, a public office that provides services to vulnerable people in the province, has a list of numbers to call for designated agencies in communities across the province on its website at [http://www.trustee.bc.ca/Documents/designated-agency-responders/DA%20responders%20list%20revised%20July%2016%2009.pdf trustee.bc.ca].

You can also seek help from the '''Public Guardian and Trustee''' if you have concerns about the financial and legal affairs of a vulnerable adult (for example, you suspect there is financial abuse). You can make a report to the Public Guardian and Trustee through its website at [http://www.trustee.bc.ca/services/services-to-adults/Pages/assessment-and-investigation-services.aspx trustee.bc.ca] or call 604-660-4444. They can help identify options, and investigate if there is an urgent need.

====If the adult is in assisted living====
The '''Assisted Living Registrar''' has a mandate to protect the health and safety of assisted living residents. If you are concerned about the health and safety of someone living in an assisted living residence, you can contact the Registrar by calling toll-free 1-866-714-3378.

===If you report elder abuse===
If you report elder abuse to a designated agency, they must consider your report. An investigator must make reasonable efforts to interview the older adult involved (whether that’s you or someone else).

If the problem can’t be solved informally, the designated agency may suggest options, including preparing a support and assistance plan, notifying the Public Guardian and Trustee (if there is a concern of financial abuse), and applying for a restraining order to keep the suspected abuser away. The designated agency must involve the older adult, to the greatest extent possible, in decisions about how to seek support and assistance.

If the abuse involves a criminal offence such as threats, assault, forgery or intimidation, the designated agency must report it to the police.

====Where there is financial abuse====
The Public Guardian and Trustee investigates reports of financial elder abuse when the older adult’s assets are at risk and the person is incapable of managing their financial affairs. In some situations, the Public Guardian and Trustee may take steps to become '''committee''' of the estate, so it can make financial decisions to protect the person’s assets. If the Public Guardian and Trustee gets a report involving concerns about physical risk, it will refer the situation to a designated agency.

===If you are concerned with the response to a report of abuse===
If you are concerned about the response offered by a designated agency to a report of abuse, you have options.

If you reported the abuse to a health authority, you can complain to the health authority’s '''Patient Care Quality Office'''. Each health authority has one. You can make a complaint online at [https://www.patientcarequalityreviewboard.ca/makecomplaint.html patientcarequalityreviewboard.ca]. If you’re still not satisfied with how your complaint was handled or with the response you received, you can request that a Patient Care Quality Review Board look into the matter. Again, each health authority [https://www.patientcarequalityreviewboard.ca/requestreview.html has one].

Another option if you are concerned with the care or service provided to you or a family member by a health authority, is you can contact the '''Office of the Seniors Advocate'''. The Seniors Advocate monitors seniors’ services and issues in BC, and makes recommendations to government and service providers to address systemic issues. You can call 1-877-952-3181 or visit their website at [http://www.seniorsadvocatebc.ca/ seniorsadvocatebc.ca].

===Making decisions about your life and your health care===
Under the [http://canlii.ca/t/84gj law in BC], all adults are entitled to live in the manner they wish and to accept or refuse support as long as they don’t harm others and they are capable of making decisions about those matters. Every adult is presumed to be capable of making decisions about their personal care, health care and financial affairs.

The law presumes all adults are capable of giving, refusing, or revoking their consent to health care, unless it’s clear they are not capable of making those decisions. If a doctor questions a person’s mental capability, the doctor can require the person to have a capacity assessment performed by a medical expert. Our information on [[Adults and Consent to Health Care (Script 428)|adults and consent to health care (no. 428)]] explains this more fully.

==Common questions==

===How can I prepare for the possibility of becoming incapable of making my own decisions?===
It’s a good idea to plan for the possibility you won’t be able to make your own decisions. For example, to deal with decisions on your legal and financial affairs, you can make a '''power of attorney'''. With an “enduring power of attorney” you can appoint another person to make financial and legal decisions for you. It continues — or endures — if you become mentally incapable. The person you appoint is called your attorney.

To deal with personal care and health care decisions, you can make a '''representation agreement'''. With this document you can appoint someone, called a representative, to help you make, or to make, personal and health care decisions if you cannot make these decisions on your own. For more on these planning documents, see our information on [[Power of Attorney and Representation Agreements (Script 180)|powers of attorney and representation agreements (no. 180)]].

If you do not have a representative, and someone needs to make a health care decision for you, a '''temporary substitute decision-maker''' may need to be appointed. Our information on [[Adults and Consent to Health Care (Script 428)|adults and consent to health care (no. 428))]] explains temporary substitute decision-makers and '''advance directives''', which are written instructions about health care wishes.

===Should I transfer my home to my child so I can stay in it with them?===
It depends. As people age, they often need help with their daily needs, but may not want to leave the comfort of their own homes. Sometimes, family members or friends will suggest they move into your home and have you transfer your home to them in exchange for their looking after you. This can be a good way to get the help you need, while letting the younger family member or friend get a home.

But this arrangement can cause misunderstandings and trouble. As your health changes and your needs increase, the family member or friend may not be able to give you the care you need, without significantly changing their own lives. For example, they may have to quit their job and stay at home with you to care for you. But they may not be willing to do that. At that point, you may need to sell your home to pay for health care and assisted living help.

In most cases, it’s not a good idea to transfer your home to your child or to add their name to the title of your home. It opens up the risk that creditors and spouses could make claims against your home. And you could lose the capital gains tax exemption for your principal residence if a child’s name is on the title, but it’s not their principal residence.

So before you make such an arrangement, it’s best to get legal advice. See our information on [[Low Cost and Free Legal Services (Script 430)|free and low-cost legal help (no. 430)]].

===How can I protect myself when lending money to family members?===
Older people often help their children or grandchildren by lending them money, co-signing a bank loan, or giving a personal guarantee. You could lose a lot of money if you don’t protect yourself by understanding the transaction and getting proper documents signed.

If you lend money to finance a home purchase, make sure you register a '''mortgage''' on the home to secure your interest. If you don’t want to do that, you should at least get the borrower (and their spouse) to sign a '''promissory note''' with the loan terms.

If you guarantee a family member’s bank loan, you are promising to pay the bank in full if the borrower doesn’t repay the loan. You’re responsible for the full amount of the loan, and the bank can come after you for it. Make sure any guarantee you sign is for a specific amount. See our information on [[Co-Signing or Guaranteeing a Loan (Script 248)|co-signing or guaranteeing a loan (no. 248)]].

Before you lend money to a friend or family member, it’s best to get legal advice on the best way to protect your loan and your personal liability.

===Can I change my will if my circumstances change?===
You can always change your will as long as you’re mentally capable. Actually, you ''should'' change your will whenever your financial or personal circumstances change, or if your beneficiaries change (for example, if a beneficiary dies).

You should also review your will if you get married or divorced, or you separate, or you live in a marriage-like relationship for at least two years. Until 2013 (when the law changed), when a person got married, the marriage automatically revoked or cancelled their existing will. Under the current law, that does not happen.

For more, see our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]].

===Can I disinherit a family member?===
You can, but it may not work. In general, you are free to leave your estate to whomever you want. However, the law does require that you make adequate provision for the proper maintenance and support of your spouse and children. Your spouse or children can apply to court for a portion of the estate that is "adequate, just and equitable in the circumstances".

For more, see our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]].

==Get help==

===With elder abuse===
The '''Seniors Abuse and Information Line''' (SAIL) is a safe, confidential place for older adults and those who care about them to talk to someone about situations where they feel they are being abused or mistreated. This service is operated by Seniors First BC, a non-profit that helps seniors with legal problems.
:Telephone: 604-437-1940 in the Lower Mainland
:Toll-free: 1-866-437-1940
:Web: [http://seniorsfirstbc.ca/programs/sail/ seniorsfirstbc.ca]

'''VictimLink BC''' is a toll-free, confidential, telephone service available 24x7. They provide information and referral services to all victims of crime.
:Toll-free: 1-800-563-0808
:Web: [http://victimlinkbc.ca victimlinkbc.ca]

The '''BC Association of Community''' Response Networks are people working on a local level to help coordinate community response to elder abuse.
:Web: [http://www.bccrns.ca bccrns.ca]

The '''Public Guardian and Trustee of BC''', a public office that provides services to vulnerable people in the province, includes information on its website about elder abuse and adult guardianship.
:Telephone: 604-660-4444 in Vancouver
:Toll-free: 1-800-663-7867
:Web: [http://www.trustee.bc.ca/ trustee.bc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [http://www.bcheritagelaw.com/team/nicole-garton/ Nicole Garton] and [http://www.bcheritagelaw.com/team/elizabeth-markus/ Elizabeth Markus], Heritage Law.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

Seniors' Rights and Elder Abuse

2019-03-06T06:09:38Z

Dial-A-Law: /* You have the right to live in the manner you wish and free of elder abuse */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = rights}}
When someone in a trusted relationship with an older person does something that harms or distresses them, this is '''elder abuse'''. Learn what options exist if you suspect elder abuse.

==Understand your legal rights==

===You have the right to live in the manner you wish and free of elder abuse===
Under the [http://canlii.ca/t/84gj law in BC], all adults are entitled to live in the manner they wish as long as they don’t harm others and they are capable of making decisions.

Older adults, like everyone, have the right to live in safety and security. When someone in a relationship of trust with an older person does something that causes them harm or distress, this is called '''elder abuse'''.

Elder abuse takes many forms. It can be '''physical abuse''', including striking or pushing an older adult, over- or under-medicating them, or inappropriately restraining them.

It can be '''psychological abuse''' that decreases their sense of self-worth or dignity. This includes insulting or humiliating an older adult, intimidating or threatening them, treating them like a child, invading their privacy, or isolating them from friends or activities.

It can be '''financial abuse'''. This can involve misusing or stealing an older adult's assets or money, pressuring them to change a will or sign legal documents they don’t fully understand, or sharing their home without paying a fair share of the expenses when asked.

It can take the form of '''neglect'''. This is a lack of action that harms an older person, such as not providing appropriate food or shelter, medical attention, or assistance with basic necessities.

Often, more than one type of abuse occurs at the same time. Abuse can be a single incident or a repeated pattern of behaviour.

===If an older adult is being abused===
If you or someone you know is in immediate danger, '''dial 9-1-1''' or call the emergency number listed in the front of your phone book.

In non-emergency situations, there are many organizations that can help abused or neglected older adults or their friends and family get help and protection. The '''BC Association of Community Response Networks''' are people working on a local level to help coordinate community response to elder abuse. Their website at [http://www.bccrns.ca bccrns.ca] features a way to search for contacts and supports in your community.

'''VictimLink BC''' is a toll-free, confidential, telephone service available 24x7. They provide information and referral services to all victims of crime and immediate crisis support to victims of family and sexual violence. You can contact them at 1-800-563-0808 or [http://victimlinkbc.ca victimlinkbc.ca].

====If the adult can’t seek help on their own====
An older adult who is struggling to manage on their own is particularly vulnerable to abuse.

If you have concerns about the health and safety of an adult, or suspect they are being abused or neglected, you may make a confidential report to a “'''designated agency'''”. The designated agencies in BC are the five regional health authorities, Providence Health Care, and Community Living BC (for adults with developmental disabilities). If a designated agency receives a report, it will investigate and offer support and assistance to the adult, or take steps to protect the adult. The Public Guardian and Trustee of BC, a public office that provides services to vulnerable people in the province, has a list of numbers to call for designated agencies in communities across the province on its website at [http://www.trustee.bc.ca/Documents/designated-agency-responders/DA%20responders%20list%20revised%20July%2016%2009.pdf trustee.bc.ca].

You can also seek help from the '''Public Guardian and Trustee''' if you have concerns about the financial and legal affairs of a vulnerable adult (for example, you suspect there is financial abuse). You can make a report to the Public Guardian and Trustee through its website at [http://www.trustee.bc.ca/services/services-to-adults/Pages/assessment-and-investigation-services.aspx trustee.bc.ca] or call 604-660-4444. They can help identify options, and investigate if there is an urgent need.

====If the adult is in assisted living====
The '''Assisted Living Registrar''' has a mandate to protect the health and safety of assisted living residents. If you are concerned about the health and safety of someone living in an assisted living residence, you can contact the Registrar by calling toll-free 1-866-714-3378.

===If you report elder abuse===
If you report elder abuse to a designated agency, they must consider your report. An investigator must make reasonable efforts to interview the older adult involved (whether that’s you or someone else).

If the problem can’t be solved informally, the designated agency may suggest options, including preparing a support and assistance plan, notifying the Public Guardian and Trustee (if there is a concern of financial abuse), and applying for a restraining order to keep the suspected abuser away. The designated agency must involve the older adult, to the greatest extent possible, in decisions about how to seek support and assistance.

If the abuse involves a criminal offence such as threats, assault, forgery or intimidation, the designated agency must report it to the police.

====Where there is financial abuse====
The Public Guardian and Trustee investigates reports of financial elder abuse when the older adult’s assets are at risk and the person is incapable of managing their financial affairs. In some situations, the Public Guardian and Trustee may take steps to become '''committee''' of the estate, so it can make financial decisions to protect the person’s assets. If the Public Guardian and Trustee gets a report involving concerns about physical risk, it will refer the situation to a designated agency.

===If you are concerned with the response to a report of abuse===
If you are concerned about the response offered by a designated agency to a report of abuse, you have options.

If you reported the abuse to a health authority, you can complain to the health authority’s '''Patient Care Quality Office'''. Each health authority has one. You can make a complaint online at [https://www.patientcarequalityreviewboard.ca/makecomplaint.html patientcarequalityreviewboard.ca]. If you’re still not satisfied with how your complaint was handled or with the response you received, you can request that a Patient Care Quality Review Board look into the matter. Again, each health authority [https://www.patientcarequalityreviewboard.ca/requestreview.html has one].

Another option if you are concerned with the care or service provided to you or a family member by a health authority, is you can contact the '''Office of the Seniors Advocate'''. The Seniors Advocate monitors seniors’ services and issues in BC, and makes recommendations to government and service providers to address systemic issues. You can call 1-877-952-3181 or visit their website at [http://www.seniorsadvocatebc.ca/ seniorsadvocatebc.ca].

===Making decisions about your life and your health care===
Under the [http://canlii.ca/t/84gj law in BC], all adults are entitled to live in the manner they wish and to accept or refuse support as long as they don’t harm others and they are capable of making decisions about those matters. Every adult is presumed to be capable of making decisions about their personal care, health care and financial affairs.

The law presumes all adults are capable of giving, refusing, or revoking their consent to health care, unless it’s clear they are not capable of making those decisions. If a doctor questions a person’s mental capability, the doctor can require the person to have a capacity assessment performed by a medical expert. Our information on [[Adults and Consent to Health Care (Script 428)|adults and consent to health care (no. 428)]] explains this more fully.

==Common questions==

===How can I prepare for the possibility of becoming incapable of making my own decisions?===
It’s a good idea to plan for the possibility you won’t be able to make your own decisions. For example, to deal with decisions on your legal and financial affairs, you can make a '''power of attorney'''. With an “enduring power of attorney” you can appoint another person to make financial and legal decisions for you. It continues — or endures — if you become mentally incapable. The person you appoint is called your attorney.

To deal with personal care and health care decisions, you can make a '''representation agreement'''. With this document you can appoint someone, called a representative, to help you make, or to make, personal and health care decisions if you cannot make these decisions on your own. For more on these planning documents, see our information on [[Power of Attorney and Representation Agreements (Script 180)|powers of attorney and representation agreements (no. 180)]].

If you do not have a representative, and someone needs to make a health care decision for you, a '''temporary substitute decision-maker''' may need to be appointed. Our information on [[Adults and Consent to Health Care (Script 428)|adults and consent to health care (no. 428))]] explains temporary substitute decision-makers and '''advance directives''', which are written instructions about health care wishes.

===Should I transfer my home to my child so I can stay in it with them?===
It depends. As people age, they often need help with their daily needs, but may not want to leave the comfort of their own homes. Sometimes, family members or friends will suggest they move into your home and have you transfer your home to them in exchange for their looking after you. This can be a good way to get the help you need, while letting the younger family member or friend get a home.

But this arrangement can cause misunderstandings and trouble. As your health changes and your needs increase, the family member or friend may not be able to give you the care you need, without significantly changing their own lives. For example, they may have to quit their job and stay at home with you to care for you. But they may not be willing to do that. At that point, you may need to sell your home to pay for health care and assisted living help.

In most cases, it’s not a good idea to transfer your home to your child or to add their name to the title of your home. It opens up the risk that creditors and spouses could make claims against your home. And you could lose the capital gains tax exemption for your principal residence if a child’s name is on the title, but it’s not their principal residence.

So before you make such an arrangement, it’s best to get legal advice. See our information on [[Low Cost and Free Legal Services (Script 430)|free and low-cost legal help (no. 430)]].

===How can I protect myself when lending money to family members?===
Older people often help their children or grandchildren by lending them money, co-signing a bank loan, or giving a personal guarantee. You could lose a lot of money if you don’t protect yourself by understanding the transaction and getting proper documents signed.

If you lend money to finance a home purchase, make sure you register a '''mortgage''' on the home to secure your interest. If you don’t want to do that, you should at least get the borrower (and their spouse) to sign a '''promissory note''' with the loan terms.

If you guarantee a family member’s bank loan, you are promising to pay the bank in full if the borrower doesn’t repay the loan. You’re responsible for the full amount of the loan, and the bank can come after you for it. Make sure any guarantee you sign is for a specific amount. See our information on [[Co-Signing or Guaranteeing a Loan (Script 248)|co-signing or guaranteeing a loan (no. 248)]].

Before you lend money to a friend or family member, it’s best to get legal advice on the best way to protect your loan and your personal liability.

===Can I change my will if my circumstances change?===
You can always change your will as long as you’re mentally capable. Actually, you ''should'' change your will whenever your financial or personal circumstances change, or if your beneficiaries change (for example, if a beneficiary dies).

You should also review your will if you get married or divorced, or you separate, or you live in a marriage-like relationship for at least two years. Until 2013 (when the law changed), when a person got married, the marriage automatically revoked or cancelled their existing will. Under the current law, that does not happen.

For more, see our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]].

Can I disinherit a family member?
You can, but it may not work. In general, you are free to leave your estate to whomever you want. However, the law does require that you make adequate provision for the proper maintenance and support of your spouse and children. Your spouse or children can apply to court for a portion of the estate that is "adequate, just and equitable in the circumstances".

For more, see our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]].

==Get help==

===With elder abuse===
The '''Seniors Abuse and Information Line''' (SAIL) is a safe, confidential place for older adults and those who care about them to talk to someone about situations where they feel they are being abused or mistreated. This service is operated by Seniors First BC, a non-profit that helps seniors with legal problems.
:Telephone: 604-437-1940 in the Lower Mainland
:Toll-free: 1-866-437-1940
:Web: [http://seniorsfirstbc.ca/programs/sail/ seniorsfirstbc.ca]

'''VictimLink BC''' is a toll-free, confidential, telephone service available 24x7. They provide information and referral services to all victims of crime.
:Toll-free: 1-800-563-0808
:Web: [http://victimlinkbc.ca victimlinkbc.ca]

The '''BC Association of Community''' Response Networks are people working on a local level to help coordinate community response to elder abuse.
:Web: [http://www.bccrns.ca bccrns.ca]

The '''Public Guardian and Trustee of BC''', a public office that provides services to vulnerable people in the province, includes information on its website about elder abuse and adult guardianship.
:Telephone: 604-660-4444 in Vancouver
:Toll-free: 1-800-663-7867
:Web: [http://www.trustee.bc.ca/ trustee.bc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [http://www.bcheritagelaw.com/team/nicole-garton/ Nicole Garton] and [http://www.bcheritagelaw.com/team/elizabeth-markus/ Elizabeth Markus], Heritage Law.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

Seniors' Rights and Elder Abuse

2019-03-06T06:08:13Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = rights}}
When someone in a trusted relationship with an older person does something that harms or distresses them, this is '''elder abuse'''. Learn what options exist if you suspect elder abuse.

==Understand your legal rights==

===You have the right to live in the manner you wish and free of elder abuse===
Under the [http://canlii.ca/t/84gj law in BC], all adults are entitled to live in the manner they wish as long as they don’t harm others and they are capable of making decisions.

Older adults, like everyone, have the right to live in safety and security. When someone in a relationship of trust with an older person does something that causes them harm or distress, this is called '''elder abuse'''.

Elder abuse takes many forms. It can be '''physical abuse''', including striking or pushing an older adult, over- or under-medicating them, or inappropriately restraining them.

It can be '''psychological abuse''' that decreases their sense of self-worth or dignity. This includes insulting or humiliating an older adult, intimidating or threatening them, treating them like a child, invading their privacy, or isolating them from friends or activities.

It can be '''financial abuse'''. This can involve misusing or stealing an older adult's assets or money, pressuring them to change a will or sign legal documents they don’t fully understand, or sharing their home without paying a fair share of the expenses when asked.

It can take the form of '''neglect'''. This is a lack of action that harms an older person, such as not providing appropriate food or shelter, medical attention, or assistance with basic necessities.
Often, more than one type of abuse occurs at the same time. Abuse can be a single incident or a repeated pattern of behaviour.

===If an older adult is being abused===
If you or someone you know is in immediate danger, '''dial 9-1-1''' or call the emergency number listed in the front of your phone book.

In non-emergency situations, there are many organizations that can help abused or neglected older adults or their friends and family get help and protection. The '''BC Association of Community Response Networks''' are people working on a local level to help coordinate community response to elder abuse. Their website at [http://www.bccrns.ca bccrns.ca] features a way to search for contacts and supports in your community.

'''VictimLink BC''' is a toll-free, confidential, telephone service available 24x7. They provide information and referral services to all victims of crime and immediate crisis support to victims of family and sexual violence. You can contact them at 1-800-563-0808 or [http://victimlinkbc.ca victimlinkbc.ca].

====If the adult can’t seek help on their own====
An older adult who is struggling to manage on their own is particularly vulnerable to abuse.

If you have concerns about the health and safety of an adult, or suspect they are being abused or neglected, you may make a confidential report to a “'''designated agency'''”. The designated agencies in BC are the five regional health authorities, Providence Health Care, and Community Living BC (for adults with developmental disabilities). If a designated agency receives a report, it will investigate and offer support and assistance to the adult, or take steps to protect the adult. The Public Guardian and Trustee of BC, a public office that provides services to vulnerable people in the province, has a list of numbers to call for designated agencies in communities across the province on its website at [http://www.trustee.bc.ca/Documents/designated-agency-responders/DA%20responders%20list%20revised%20July%2016%2009.pdf trustee.bc.ca].

You can also seek help from the '''Public Guardian and Trustee''' if you have concerns about the financial and legal affairs of a vulnerable adult (for example, you suspect there is financial abuse). You can make a report to the Public Guardian and Trustee through its website at [http://www.trustee.bc.ca/services/services-to-adults/Pages/assessment-and-investigation-services.aspx trustee.bc.ca] or call 604-660-4444. They can help identify options, and investigate if there is an urgent need.

====If the adult is in assisted living====
The '''Assisted Living Registrar''' has a mandate to protect the health and safety of assisted living residents. If you are concerned about the health and safety of someone living in an assisted living residence, you can contact the Registrar by calling toll-free 1-866-714-3378.

===If you report elder abuse===
If you report elder abuse to a designated agency, they must consider your report. An investigator must make reasonable efforts to interview the older adult involved (whether that’s you or someone else).

If the problem can’t be solved informally, the designated agency may suggest options, including preparing a support and assistance plan, notifying the Public Guardian and Trustee (if there is a concern of financial abuse), and applying for a restraining order to keep the suspected abuser away. The designated agency must involve the older adult, to the greatest extent possible, in decisions about how to seek support and assistance.

If the abuse involves a criminal offence such as threats, assault, forgery or intimidation, the designated agency must report it to the police.

====Where there is financial abuse====
The Public Guardian and Trustee investigates reports of financial elder abuse when the older adult’s assets are at risk and the person is incapable of managing their financial affairs. In some situations, the Public Guardian and Trustee may take steps to become '''committee''' of the estate, so it can make financial decisions to protect the person’s assets. If the Public Guardian and Trustee gets a report involving concerns about physical risk, it will refer the situation to a designated agency.

===If you are concerned with the response to a report of abuse===
If you are concerned about the response offered by a designated agency to a report of abuse, you have options.

If you reported the abuse to a health authority, you can complain to the health authority’s '''Patient Care Quality Office'''. Each health authority has one. You can make a complaint online at [https://www.patientcarequalityreviewboard.ca/makecomplaint.html patientcarequalityreviewboard.ca]. If you’re still not satisfied with how your complaint was handled or with the response you received, you can request that a Patient Care Quality Review Board look into the matter. Again, each health authority [https://www.patientcarequalityreviewboard.ca/requestreview.html has one].

Another option if you are concerned with the care or service provided to you or a family member by a health authority, is you can contact the '''Office of the Seniors Advocate'''. The Seniors Advocate monitors seniors’ services and issues in BC, and makes recommendations to government and service providers to address systemic issues. You can call 1-877-952-3181 or visit their website at [http://www.seniorsadvocatebc.ca/ seniorsadvocatebc.ca].

===Making decisions about your life and your health care===
Under the [http://canlii.ca/t/84gj law in BC], all adults are entitled to live in the manner they wish and to accept or refuse support as long as they don’t harm others and they are capable of making decisions about those matters. Every adult is presumed to be capable of making decisions about their personal care, health care and financial affairs.

The law presumes all adults are capable of giving, refusing, or revoking their consent to health care, unless it’s clear they are not capable of making those decisions. If a doctor questions a person’s mental capability, the doctor can require the person to have a capacity assessment performed by a medical expert. Our information on [[Adults and Consent to Health Care (Script 428)|adults and consent to health care (no. 428)]] explains this more fully.

==Common questions==

===How can I prepare for the possibility of becoming incapable of making my own decisions?===
It’s a good idea to plan for the possibility you won’t be able to make your own decisions. For example, to deal with decisions on your legal and financial affairs, you can make a '''power of attorney'''. With an “enduring power of attorney” you can appoint another person to make financial and legal decisions for you. It continues — or endures — if you become mentally incapable. The person you appoint is called your attorney.

To deal with personal care and health care decisions, you can make a '''representation agreement'''. With this document you can appoint someone, called a representative, to help you make, or to make, personal and health care decisions if you cannot make these decisions on your own. For more on these planning documents, see our information on [[Power of Attorney and Representation Agreements (Script 180)|powers of attorney and representation agreements (no. 180)]].

If you do not have a representative, and someone needs to make a health care decision for you, a '''temporary substitute decision-maker''' may need to be appointed. Our information on [[Adults and Consent to Health Care (Script 428)|adults and consent to health care (no. 428))]] explains temporary substitute decision-makers and '''advance directives''', which are written instructions about health care wishes.

===Should I transfer my home to my child so I can stay in it with them?===
It depends. As people age, they often need help with their daily needs, but may not want to leave the comfort of their own homes. Sometimes, family members or friends will suggest they move into your home and have you transfer your home to them in exchange for their looking after you. This can be a good way to get the help you need, while letting the younger family member or friend get a home.

But this arrangement can cause misunderstandings and trouble. As your health changes and your needs increase, the family member or friend may not be able to give you the care you need, without significantly changing their own lives. For example, they may have to quit their job and stay at home with you to care for you. But they may not be willing to do that. At that point, you may need to sell your home to pay for health care and assisted living help.

In most cases, it’s not a good idea to transfer your home to your child or to add their name to the title of your home. It opens up the risk that creditors and spouses could make claims against your home. And you could lose the capital gains tax exemption for your principal residence if a child’s name is on the title, but it’s not their principal residence.

So before you make such an arrangement, it’s best to get legal advice. See our information on [[Low Cost and Free Legal Services (Script 430)|free and low-cost legal help (no. 430)]].

===How can I protect myself when lending money to family members?===
Older people often help their children or grandchildren by lending them money, co-signing a bank loan, or giving a personal guarantee. You could lose a lot of money if you don’t protect yourself by understanding the transaction and getting proper documents signed.

If you lend money to finance a home purchase, make sure you register a '''mortgage''' on the home to secure your interest. If you don’t want to do that, you should at least get the borrower (and their spouse) to sign a '''promissory note''' with the loan terms.

If you guarantee a family member’s bank loan, you are promising to pay the bank in full if the borrower doesn’t repay the loan. You’re responsible for the full amount of the loan, and the bank can come after you for it. Make sure any guarantee you sign is for a specific amount. See our information on [[Co-Signing or Guaranteeing a Loan (Script 248)|co-signing or guaranteeing a loan (no. 248)]].

Before you lend money to a friend or family member, it’s best to get legal advice on the best way to protect your loan and your personal liability.

===Can I change my will if my circumstances change?===
You can always change your will as long as you’re mentally capable. Actually, you ''should'' change your will whenever your financial or personal circumstances change, or if your beneficiaries change (for example, if a beneficiary dies).

You should also review your will if you get married or divorced, or you separate, or you live in a marriage-like relationship for at least two years. Until 2013 (when the law changed), when a person got married, the marriage automatically revoked or cancelled their existing will. Under the current law, that does not happen.

For more, see our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]].

Can I disinherit a family member?
You can, but it may not work. In general, you are free to leave your estate to whomever you want. However, the law does require that you make adequate provision for the proper maintenance and support of your spouse and children. Your spouse or children can apply to court for a portion of the estate that is "adequate, just and equitable in the circumstances".

For more, see our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]].

==Get help==

===With elder abuse===
The '''Seniors Abuse and Information Line''' (SAIL) is a safe, confidential place for older adults and those who care about them to talk to someone about situations where they feel they are being abused or mistreated. This service is operated by Seniors First BC, a non-profit that helps seniors with legal problems.
:Telephone: 604-437-1940 in the Lower Mainland
:Toll-free: 1-866-437-1940
:Web: [http://seniorsfirstbc.ca/programs/sail/ seniorsfirstbc.ca]

'''VictimLink BC''' is a toll-free, confidential, telephone service available 24x7. They provide information and referral services to all victims of crime.
:Toll-free: 1-800-563-0808
:Web: [http://victimlinkbc.ca victimlinkbc.ca]

The '''BC Association of Community''' Response Networks are people working on a local level to help coordinate community response to elder abuse.
:Web: [http://www.bccrns.ca bccrns.ca]

The '''Public Guardian and Trustee of BC''', a public office that provides services to vulnerable people in the province, includes information on its website about elder abuse and adult guardianship.
:Telephone: 604-660-4444 in Vancouver
:Toll-free: 1-800-663-7867
:Web: [http://www.trustee.bc.ca/ trustee.bc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [http://www.bcheritagelaw.com/team/nicole-garton/ Nicole Garton] and [http://www.bcheritagelaw.com/team/elizabeth-markus/ Elizabeth Markus], Heritage Law.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

Foreclosure

2019-03-06T05:45:28Z

Dial-A-Law: /* What if I have a second mortgage registered against my home? */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
If you default on your mortgage, the lender can go to court to take the property you mortgaged or sell it to pay the debt. This process is called “foreclosure”.

==Understand your legal rights==

===If you default on your mortgage===
A '''mortgage''' is a loan used to buy a home or other property. The lender, such as a bank or trust company, provides part of the purchase price of the property. The borrower promises to pay the lender back, plus interest.

Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-250/latest/rsbc-1996-c-250.html#sec231_smooth law in BC], a mortgage gives the lender a “charge” — meaning an interest or a right — against the property being purchased. That charge gives the lender rights if the borrower “defaults” on the mortgage. The most common way for a borrower to default is by not making payments under the mortgage as promised.

If you default on your mortgage, the lender has the right to “'''accelerate'''” (speed up) the mortgage. This allows the lender to claim the full balance owed under the mortgage, plus interest and other costs, even though the mortgage term hasn’t yet expired.

The lender can start legal proceedings to take the property or sell it to pay the mortgage debt. This legal process is called '''foreclosure'''.

{| class="wikitable"
|align="left"|'''Tip'''
For more on mortgages, see our information on [[Mortgages and Financing a House Purchase (Script 408)|mortgages and financing a home purchase (no. 408)]].
|}

===You don’t automatically lose your home if you default===
Following a missed or late mortgage payment, you don’t automatically lose your home. Lenders don’t want to foreclose if they don’t have to, as it’s an expensive process and takes time. A lender will likely not start to foreclose until after two or three months of missed mortgage payments.

If you miss a mortgage payment, the lender will usually send a reminder letter. If they don’t hear from you or receive the missed payment, the lender will then follow up with a '''demand letter'''.

In fact, under the law, the lender ''must'' send you a demand letter before they can start legal proceedings to take your home.

The demand letter must say exactly what you owe. It must also say that:
*you have to pay a certain amount by a certain date to catch up on what you owe to “'''reinstate'''” your mortgage (restore it to good standing), or
*you have to pay the whole amount you borrowed (not just what you owe) plus interest and expenses to “'''redeem'''” your mortgage (pay it off).

====Exploring options with the lender====
If you have a short-term problem, like a temporary layoff from work, you may be able to negotiate with the lender. For example, you might offer to make smaller payments for a time, and add the amounts you fall behind to the total amount of your mortgage. Or, you might offer to make smaller payments for a while and a larger catch-up payment later. Most lenders would rather make some sort of deal and keep the mortgage in good standing, instead of starting foreclosure proceedings in court.

The law tries to help you if you have a good chance of paying what you owe and if you try to get your finances in order. Only in the worst cases are you likely to lose your home and any '''equity''' you’ve built up in it. Equity is the amount your home value exceeds your mortgage loan and any other debts registered against your home.

===If the lender starts a foreclosure action===
After a default, if you don’t '''reinstate''' the mortgage (by paying the amounts you owe) or '''redeem''' it (by paying the mortgage off fully) within the time set out in the demand letter, the lender can start foreclosure proceedings. Usually, this happens after you’ve missed three months of payments. But it can happen sooner.

If there’s a Supreme Court registry near where your home is located, the lender must start the proceedings there. You will receive a document called a “'''petition'''” for foreclosure. This is the lender’s notice to you they are bringing a legal action to get back the money they loaned you.

====If you receive a petition for foreclosure====
Get legal advice right away. If you want to protect yourself and take part in the court proceedings, you must file a '''response''' to the petition. You have to file this response within '''21 days''' of getting the petition. You must file the response, together with supporting affidavits, at the court address shown on the petition. You must also deliver two copies of your response to the lender.

Once you take these steps, no one can take any steps in the foreclosure without notifying you. If you don’t file a response, the foreclosure will go ahead without you, and you won’t be able to protect yourself.

After you file the response, you will get a document called a '''notice of hearing'''. This sets the date of a court hearing where the lender will ask for an “order nisi”, the initial order in a foreclosure action.

{| class="wikitable"
|align="left"|'''Tip'''
For step-by-step guidance on responding to a foreclosure petition, see People’s Law School’s information on if you’re facing foreclosure, at [https://www.peopleslawschool.ca/everyday-legal-problems/home-neighbours/mortgages/if-youre-facing-foreclosure peopleslawschool.ca].
|}

===If the lender asks for an “order nisi”===
At the first court hearing in a foreclosure action, the lender asks the court for an '''order nisi'''. This order sets the length of the “'''redemption period'''”, which is the time period during which you can redeem, or pay off, the mortgage. The order nisi also includes a personal judgment against you for the amount you owe.

Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-253/latest/rsbc-1996-c-253.html#sec16_smooth law in BC], the default redemption period is '''six months'''. However, the court can order that it be shortened or extended. One good reason to attend the court hearing is to ask the judge for as much time as possible to get the money to pay off the mortgage or sell the home.

{| class="wikitable"
|align="left"|'''Tip'''
Courts rarely order a redemption period longer than six months. What is more common is to apply later to extend the redemption period beyond six months. You will need to show you have enough equity in the property to pay the lender the amount owed. You also need to show there’s a reasonable chance of payment within the added time.
|}

===If the lender asks that your home be sold===
During the redemption period, the lender (or another creditor) may ask the court for an order for “'''conduct of sale'''”. This order gives the creditor control over selling your home to cover what you owe.

You might be able to oppose the order by showing you have equity in the property or you are making efforts to sell the property yourself. You can argue that your efforts to sell the property are preferable, since creditors may be inclined to want to sell the property faster, at a lower price, than you would like.

If the court gives the lender or another creditor conduct of sale, you cannot sell the property yourself. But you may be able to oppose the '''approval of the sale'''. Court approval must be obtained for any sale. The creditor with conduct of sale presents a buyer’s offer at a court hearing. You may be able to argue the offer isn’t enough, and that more time should be allowed to get a better price. That said, where there is more than one offer, the property will almost certainly be sold.

===Your options during the redemption period===
During the redemption period, you have options, depending on your circumstances.

One option is to '''redeem the mortgage''' (pay it off). To get the money for this, you can try to borrow from another lender or a relative. You might seek a longer repayment period or a lower interest rate. Doing so could allow you to pay off the mortgage and lower your monthly payments. However, getting a loan in the amount needed may be difficult. Most lenders look at your income to decide whether to give you a mortgage and your income may be what caused you to fall behind in your mortgage payments in the first place, resulting in the foreclosure action.

Or you can try to '''sell the home'''. You could invite several real estate agents in your area to look through your home and tell you what they think it would sell for. Be honest with them about your situation, then choose the realtor you trust the most or feel most comfortable with. If you sell the home, you can use the money from the sale, first to pay any property tax you owe, and then to pay the mortgage and other charges registered against the title, including court costs. If there’s any money left over, you keep it. But if the money from selling your home doesn’t completely pay off all the lenders, you may have to pay them the difference.

===If the lender applies for an “order absolute”===
The final order for foreclosure is called an “'''order absolute'''”. It comes after the redemption period ends. If the lender applies for an order absolute and the court grants it, the home then belongs to the lender and you must leave it. You lose all rights to the home.

If the lender gets an order absolute, and registers title in its own name, it cannot make any further claims against you. It can sell the home, but if the sale does not produce enough money to pay off the mortgage, you do not have to pay the difference.

Lenders do not usually ask the court for an order absolute. Instead, they more commonly ask the court for an order for conduct of sale, to sell your home to pay off the loan. If the money from selling your home doesn’t completely pay off the mortgage loan, the lender can attempt to collect the difference from you, relying on the personal judgment against you in the “order nisi”.

==Common questions==

===What if I have no equity in my home?===
If you owe more than you can sell the home for, you will probably want to get out of the situation with as little expense and trouble as possible. However, you should still take action instead of ignoring the problem. You may want to work with the lender to minimize costs by agreeing to the foreclosure. Normally, you would only do this if the lender will give you a '''full release''' from your mortgage, meaning you won’t owe the lender any more money. If the lender won’t agree to this, you can simply let the foreclosure proceedings go ahead and use the time as a rent-free period to get your finances back in order. If any other people or companies with debts registered against your home are not paid from the money from selling your home in the foreclosure, you will still have to deal with them. Otherwise, they can sue you for any money you still owe them.

===What if I have a second mortgage registered against my home?===
After foreclosure proceedings, any mortgages or charges registered ''before'' the lender’s mortgage continue and are still valid. However, any that were registered ''after'' the lender’s mortgage are cancelled. The holders of those charges lose their security. For example, if you have two mortgages on your home, and the first lender forecloses, the second lender will have to pay off the first lender or lose its security. Then the second lender would have to try to get you to pay its loss.

[updated October 2017]

'''The above was last reviewed for legal accuracy by [https://www.ganapathico.com/our-team/nathan-ganapathi/ Nathan Ganapathi] and [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Foreclosure

2019-03-06T05:43:38Z

Dial-A-Law: /* You don’t automatically lose your home if you default */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
If you default on your mortgage, the lender can go to court to take the property you mortgaged or sell it to pay the debt. This process is called “foreclosure”.

==Understand your legal rights==

===If you default on your mortgage===
A '''mortgage''' is a loan used to buy a home or other property. The lender, such as a bank or trust company, provides part of the purchase price of the property. The borrower promises to pay the lender back, plus interest.

Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-250/latest/rsbc-1996-c-250.html#sec231_smooth law in BC], a mortgage gives the lender a “charge” — meaning an interest or a right — against the property being purchased. That charge gives the lender rights if the borrower “defaults” on the mortgage. The most common way for a borrower to default is by not making payments under the mortgage as promised.

If you default on your mortgage, the lender has the right to “'''accelerate'''” (speed up) the mortgage. This allows the lender to claim the full balance owed under the mortgage, plus interest and other costs, even though the mortgage term hasn’t yet expired.

The lender can start legal proceedings to take the property or sell it to pay the mortgage debt. This legal process is called '''foreclosure'''.

{| class="wikitable"
|align="left"|'''Tip'''
For more on mortgages, see our information on [[Mortgages and Financing a House Purchase (Script 408)|mortgages and financing a home purchase (no. 408)]].
|}

===You don’t automatically lose your home if you default===
Following a missed or late mortgage payment, you don’t automatically lose your home. Lenders don’t want to foreclose if they don’t have to, as it’s an expensive process and takes time. A lender will likely not start to foreclose until after two or three months of missed mortgage payments.

If you miss a mortgage payment, the lender will usually send a reminder letter. If they don’t hear from you or receive the missed payment, the lender will then follow up with a '''demand letter'''.

In fact, under the law, the lender ''must'' send you a demand letter before they can start legal proceedings to take your home.

The demand letter must say exactly what you owe. It must also say that:
*you have to pay a certain amount by a certain date to catch up on what you owe to “'''reinstate'''” your mortgage (restore it to good standing), or
*you have to pay the whole amount you borrowed (not just what you owe) plus interest and expenses to “'''redeem'''” your mortgage (pay it off).

====Exploring options with the lender====
If you have a short-term problem, like a temporary layoff from work, you may be able to negotiate with the lender. For example, you might offer to make smaller payments for a time, and add the amounts you fall behind to the total amount of your mortgage. Or, you might offer to make smaller payments for a while and a larger catch-up payment later. Most lenders would rather make some sort of deal and keep the mortgage in good standing, instead of starting foreclosure proceedings in court.

The law tries to help you if you have a good chance of paying what you owe and if you try to get your finances in order. Only in the worst cases are you likely to lose your home and any '''equity''' you’ve built up in it. Equity is the amount your home value exceeds your mortgage loan and any other debts registered against your home.

===If the lender starts a foreclosure action===
After a default, if you don’t '''reinstate''' the mortgage (by paying the amounts you owe) or '''redeem''' it (by paying the mortgage off fully) within the time set out in the demand letter, the lender can start foreclosure proceedings. Usually, this happens after you’ve missed three months of payments. But it can happen sooner.

If there’s a Supreme Court registry near where your home is located, the lender must start the proceedings there. You will receive a document called a “'''petition'''” for foreclosure. This is the lender’s notice to you they are bringing a legal action to get back the money they loaned you.

====If you receive a petition for foreclosure====
Get legal advice right away. If you want to protect yourself and take part in the court proceedings, you must file a '''response''' to the petition. You have to file this response within '''21 days''' of getting the petition. You must file the response, together with supporting affidavits, at the court address shown on the petition. You must also deliver two copies of your response to the lender.

Once you take these steps, no one can take any steps in the foreclosure without notifying you. If you don’t file a response, the foreclosure will go ahead without you, and you won’t be able to protect yourself.

After you file the response, you will get a document called a '''notice of hearing'''. This sets the date of a court hearing where the lender will ask for an “order nisi”, the initial order in a foreclosure action.

{| class="wikitable"
|align="left"|'''Tip'''
For step-by-step guidance on responding to a foreclosure petition, see People’s Law School’s information on if you’re facing foreclosure, at [https://www.peopleslawschool.ca/everyday-legal-problems/home-neighbours/mortgages/if-youre-facing-foreclosure peopleslawschool.ca].
|}

===If the lender asks for an “order nisi”===
At the first court hearing in a foreclosure action, the lender asks the court for an '''order nisi'''. This order sets the length of the “'''redemption period'''”, which is the time period during which you can redeem, or pay off, the mortgage. The order nisi also includes a personal judgment against you for the amount you owe.

Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-253/latest/rsbc-1996-c-253.html#sec16_smooth law in BC], the default redemption period is '''six months'''. However, the court can order that it be shortened or extended. One good reason to attend the court hearing is to ask the judge for as much time as possible to get the money to pay off the mortgage or sell the home.

{| class="wikitable"
|align="left"|'''Tip'''
Courts rarely order a redemption period longer than six months. What is more common is to apply later to extend the redemption period beyond six months. You will need to show you have enough equity in the property to pay the lender the amount owed. You also need to show there’s a reasonable chance of payment within the added time.
|}

===If the lender asks that your home be sold===
During the redemption period, the lender (or another creditor) may ask the court for an order for “'''conduct of sale'''”. This order gives the creditor control over selling your home to cover what you owe.

You might be able to oppose the order by showing you have equity in the property or you are making efforts to sell the property yourself. You can argue that your efforts to sell the property are preferable, since creditors may be inclined to want to sell the property faster, at a lower price, than you would like.

If the court gives the lender or another creditor conduct of sale, you cannot sell the property yourself. But you may be able to oppose the '''approval of the sale'''. Court approval must be obtained for any sale. The creditor with conduct of sale presents a buyer’s offer at a court hearing. You may be able to argue the offer isn’t enough, and that more time should be allowed to get a better price. That said, where there is more than one offer, the property will almost certainly be sold.

===Your options during the redemption period===
During the redemption period, you have options, depending on your circumstances.

One option is to '''redeem the mortgage''' (pay it off). To get the money for this, you can try to borrow from another lender or a relative. You might seek a longer repayment period or a lower interest rate. Doing so could allow you to pay off the mortgage and lower your monthly payments. However, getting a loan in the amount needed may be difficult. Most lenders look at your income to decide whether to give you a mortgage and your income may be what caused you to fall behind in your mortgage payments in the first place, resulting in the foreclosure action.

Or you can try to '''sell the home'''. You could invite several real estate agents in your area to look through your home and tell you what they think it would sell for. Be honest with them about your situation, then choose the realtor you trust the most or feel most comfortable with. If you sell the home, you can use the money from the sale, first to pay any property tax you owe, and then to pay the mortgage and other charges registered against the title, including court costs. If there’s any money left over, you keep it. But if the money from selling your home doesn’t completely pay off all the lenders, you may have to pay them the difference.

===If the lender applies for an “order absolute”===
The final order for foreclosure is called an “'''order absolute'''”. It comes after the redemption period ends. If the lender applies for an order absolute and the court grants it, the home then belongs to the lender and you must leave it. You lose all rights to the home.

If the lender gets an order absolute, and registers title in its own name, it cannot make any further claims against you. It can sell the home, but if the sale does not produce enough money to pay off the mortgage, you do not have to pay the difference.

Lenders do not usually ask the court for an order absolute. Instead, they more commonly ask the court for an order for conduct of sale, to sell your home to pay off the loan. If the money from selling your home doesn’t completely pay off the mortgage loan, the lender can attempt to collect the difference from you, relying on the personal judgment against you in the “order nisi”.

==Common questions==

===What if I have no equity in my home?===
If you owe more than you can sell the home for, you will probably want to get out of the situation with as little expense and trouble as possible. However, you should still take action instead of ignoring the problem. You may want to work with the lender to minimize costs by agreeing to the foreclosure. Normally, you would only do this if the lender will give you a '''full release''' from your mortgage, meaning you won’t owe the lender any more money. If the lender won’t agree to this, you can simply let the foreclosure proceedings go ahead and use the time as a rent-free period to get your finances back in order. If any other people or companies with debts registered against your home are not paid from the money from selling your home in the foreclosure, you will still have to deal with them. Otherwise, they can sue you for any money you still owe them.

===What if I have a second mortgage registered against my home?===
After foreclosure proceedings, any mortgages or charges registered before the lender’s mortgage continue and are still valid. However, any that were registered after the lender’s mortgage are cancelled. The holders of those charges lose their security. For example, if you have two mortgages on your home, and the first lender forecloses, the second lender will have to pay off the first lender or lose its security. Then the second lender would have to try to get you to pay its loss.

[updated October 2017]

'''The above was last reviewed for legal accuracy by [https://www.ganapathico.com/our-team/nathan-ganapathi/ Nathan Ganapathi] and [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Foreclosure

2019-03-06T05:42:31Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
If you default on your mortgage, the lender can go to court to take the property you mortgaged or sell it to pay the debt. This process is called “foreclosure”.

==Understand your legal rights==

===If you default on your mortgage===
A '''mortgage''' is a loan used to buy a home or other property. The lender, such as a bank or trust company, provides part of the purchase price of the property. The borrower promises to pay the lender back, plus interest.

Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-250/latest/rsbc-1996-c-250.html#sec231_smooth law in BC], a mortgage gives the lender a “charge” — meaning an interest or a right — against the property being purchased. That charge gives the lender rights if the borrower “defaults” on the mortgage. The most common way for a borrower to default is by not making payments under the mortgage as promised.

If you default on your mortgage, the lender has the right to “'''accelerate'''” (speed up) the mortgage. This allows the lender to claim the full balance owed under the mortgage, plus interest and other costs, even though the mortgage term hasn’t yet expired.

The lender can start legal proceedings to take the property or sell it to pay the mortgage debt. This legal process is called '''foreclosure'''.

{| class="wikitable"
|align="left"|'''Tip'''
For more on mortgages, see our information on [[Mortgages and Financing a House Purchase (Script 408)|mortgages and financing a home purchase (no. 408)]].
|}

===You don’t automatically lose your home if you default===
Following a missed or late mortgage payment, you don’t automatically lose your home. Lenders don’t want to foreclose if they don’t have to, as it’s an expensive process and takes time. A lender will likely not start to foreclose until after two or three months of missed mortgage payments.

If you miss a mortgage payment, the lender will usually send a reminder letter. If they don’t hear from you or receive the missed payment, the lender will then follow up with a '''demand letter'''.

In fact, under the law, the lender must send you a demand letter before they can start legal proceedings to take your home.

The demand letter must say exactly what you owe. It must also say that:
*you have to pay a certain amount by a certain date to catch up on what you owe to “'''reinstate'''” your mortgage (restore it to good standing), or
*you have to pay the whole amount you borrowed (not just what you owe) plus interest and expenses to “'''redeem'''” your mortgage (pay it off).

====Exploring options with the lender====
If you have a short-term problem, like a temporary layoff from work, you may be able to negotiate with the lender. For example, you might offer to make smaller payments for a time, and add the amounts you fall behind to the total amount of your mortgage. Or, you might offer to make smaller payments for a while and a larger catch-up payment later. Most lenders would rather make some sort of deal and keep the mortgage in good standing, instead of starting foreclosure proceedings in court.

The law tries to help you if you have a good chance of paying what you owe and if you try to get your finances in order. Only in the worst cases are you likely to lose your home and any '''equity''' you’ve built up in it. Equity is the amount your home value exceeds your mortgage loan and any other debts registered against your home.

===If the lender starts a foreclosure action===
After a default, if you don’t '''reinstate''' the mortgage (by paying the amounts you owe) or '''redeem''' it (by paying the mortgage off fully) within the time set out in the demand letter, the lender can start foreclosure proceedings. Usually, this happens after you’ve missed three months of payments. But it can happen sooner.

If there’s a Supreme Court registry near where your home is located, the lender must start the proceedings there. You will receive a document called a “'''petition'''” for foreclosure. This is the lender’s notice to you they are bringing a legal action to get back the money they loaned you.

====If you receive a petition for foreclosure====
Get legal advice right away. If you want to protect yourself and take part in the court proceedings, you must file a '''response''' to the petition. You have to file this response within '''21 days''' of getting the petition. You must file the response, together with supporting affidavits, at the court address shown on the petition. You must also deliver two copies of your response to the lender.

Once you take these steps, no one can take any steps in the foreclosure without notifying you. If you don’t file a response, the foreclosure will go ahead without you, and you won’t be able to protect yourself.

After you file the response, you will get a document called a '''notice of hearing'''. This sets the date of a court hearing where the lender will ask for an “order nisi”, the initial order in a foreclosure action.

{| class="wikitable"
|align="left"|'''Tip'''
For step-by-step guidance on responding to a foreclosure petition, see People’s Law School’s information on if you’re facing foreclosure, at [https://www.peopleslawschool.ca/everyday-legal-problems/home-neighbours/mortgages/if-youre-facing-foreclosure peopleslawschool.ca].
|}

===If the lender asks for an “order nisi”===
At the first court hearing in a foreclosure action, the lender asks the court for an '''order nisi'''. This order sets the length of the “'''redemption period'''”, which is the time period during which you can redeem, or pay off, the mortgage. The order nisi also includes a personal judgment against you for the amount you owe.

Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-253/latest/rsbc-1996-c-253.html#sec16_smooth law in BC], the default redemption period is '''six months'''. However, the court can order that it be shortened or extended. One good reason to attend the court hearing is to ask the judge for as much time as possible to get the money to pay off the mortgage or sell the home.

{| class="wikitable"
|align="left"|'''Tip'''
Courts rarely order a redemption period longer than six months. What is more common is to apply later to extend the redemption period beyond six months. You will need to show you have enough equity in the property to pay the lender the amount owed. You also need to show there’s a reasonable chance of payment within the added time.
|}

===If the lender asks that your home be sold===
During the redemption period, the lender (or another creditor) may ask the court for an order for “'''conduct of sale'''”. This order gives the creditor control over selling your home to cover what you owe.

You might be able to oppose the order by showing you have equity in the property or you are making efforts to sell the property yourself. You can argue that your efforts to sell the property are preferable, since creditors may be inclined to want to sell the property faster, at a lower price, than you would like.

If the court gives the lender or another creditor conduct of sale, you cannot sell the property yourself. But you may be able to oppose the '''approval of the sale'''. Court approval must be obtained for any sale. The creditor with conduct of sale presents a buyer’s offer at a court hearing. You may be able to argue the offer isn’t enough, and that more time should be allowed to get a better price. That said, where there is more than one offer, the property will almost certainly be sold.

===Your options during the redemption period===
During the redemption period, you have options, depending on your circumstances.

One option is to '''redeem the mortgage''' (pay it off). To get the money for this, you can try to borrow from another lender or a relative. You might seek a longer repayment period or a lower interest rate. Doing so could allow you to pay off the mortgage and lower your monthly payments. However, getting a loan in the amount needed may be difficult. Most lenders look at your income to decide whether to give you a mortgage and your income may be what caused you to fall behind in your mortgage payments in the first place, resulting in the foreclosure action.

Or you can try to '''sell the home'''. You could invite several real estate agents in your area to look through your home and tell you what they think it would sell for. Be honest with them about your situation, then choose the realtor you trust the most or feel most comfortable with. If you sell the home, you can use the money from the sale, first to pay any property tax you owe, and then to pay the mortgage and other charges registered against the title, including court costs. If there’s any money left over, you keep it. But if the money from selling your home doesn’t completely pay off all the lenders, you may have to pay them the difference.

===If the lender applies for an “order absolute”===
The final order for foreclosure is called an “'''order absolute'''”. It comes after the redemption period ends. If the lender applies for an order absolute and the court grants it, the home then belongs to the lender and you must leave it. You lose all rights to the home.

If the lender gets an order absolute, and registers title in its own name, it cannot make any further claims against you. It can sell the home, but if the sale does not produce enough money to pay off the mortgage, you do not have to pay the difference.

Lenders do not usually ask the court for an order absolute. Instead, they more commonly ask the court for an order for conduct of sale, to sell your home to pay off the loan. If the money from selling your home doesn’t completely pay off the mortgage loan, the lender can attempt to collect the difference from you, relying on the personal judgment against you in the “order nisi”.

==Common questions==

===What if I have no equity in my home?===
If you owe more than you can sell the home for, you will probably want to get out of the situation with as little expense and trouble as possible. However, you should still take action instead of ignoring the problem. You may want to work with the lender to minimize costs by agreeing to the foreclosure. Normally, you would only do this if the lender will give you a '''full release''' from your mortgage, meaning you won’t owe the lender any more money. If the lender won’t agree to this, you can simply let the foreclosure proceedings go ahead and use the time as a rent-free period to get your finances back in order. If any other people or companies with debts registered against your home are not paid from the money from selling your home in the foreclosure, you will still have to deal with them. Otherwise, they can sue you for any money you still owe them.

===What if I have a second mortgage registered against my home?===
After foreclosure proceedings, any mortgages or charges registered before the lender’s mortgage continue and are still valid. However, any that were registered after the lender’s mortgage are cancelled. The holders of those charges lose their security. For example, if you have two mortgages on your home, and the first lender forecloses, the second lender will have to pay off the first lender or lose its security. Then the second lender would have to try to get you to pay its loss.

[updated October 2017]

'''The above was last reviewed for legal accuracy by [https://www.ganapathico.com/our-team/nathan-ganapathi/ Nathan Ganapathi] and [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Home Repair Contractors

2019-03-06T05:28:46Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
If you own your home, you may want to do some repairs or renovations. Before you hire someone, understand your legal rights and steps you can take to prevent problems.

==Understand your legal rights==

===You must hold back 10% of the contract price for a period of time===
If you hire a contractor to do improvements on your home, under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-1997-c-45/latest/sbc-1997-c-45.html#sec4_smooth Builders Lien Act]'', you must hold back 10% of each payment to the contractor for a period of time. This is your protection against claims by subcontractors or suppliers who may not have received their share of the payments you made to the contractor. If you hold back 10%, you won’t have to pay any more than that to subcontractors and suppliers.

The holdback can be paid out 55 days after the work has been substantially (or mostly) done. This is the time period during which someone can file a '''builders lien''' for money they are owed for work or materials supplied on the project.

For more on how this “builders lien holdback” works, see our information on [[Builders Liens (Script 268)|builders liens (no. 268)]].

{| class="wikitable"
|align="left"|'''Tip'''
Before you make the final payment to a contractor, do a title search of your property to make sure no '''builders liens''' have been filed against it by the contractor or any sub-trade or supplier.
|}

===If the contractor charges you more than you expected===
If your contractor tries to charge much more than they estimated the work would cost, they may be guilty of a '''deceptive practice''' under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec4_smooth Business Practices and Consumer Protection Act]''. It is deceptive for a business to provide an estimate that is '''materially less''' than the final price they charge — unless you agree to the higher price before the work is done. If this happens, see our information on [[Dishonest Business Practices and Schemes (Script 260)|dishonest business practices (no. 260)]]. That said, if you keep changing your mind about what you want done or what materials you want, you should expect to pay more than the original estimate.

===If you’re unhappy with the work===
Once repair or renovation work has started, if you don’t like what’s being done, say so right away. The best way to solve a problem is to talk it over with the contractor first — it could be a simple misunderstanding.

The next step is to put your complaint in writing to the contractor. If the work still isn’t satisfactory, you may have to end the contract and order the contractor off the job. If you can’t solve the problem by negotiations, you might have to sue. For what’s involved in suing, see our information on [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]].

{| class="wikitable"
|align="left"|'''Tip'''
For step-by-step guidance on what to do if you’re not happy with the work on a home repair or renovation, see People’s Law School’s information on [https://www.peopleslawschool.ca/everyday-legal-problems/consumer/hiring-someone/if-youre-not-happy-service if you’re not happy with a service].
|}

==Prevent problems==

===Check on whether you need a building permit===
Before you start a home improvement project, check with your city or town hall to see if you need a '''building permit'''. If you plan to do major work, you may want to hire an architect to supervise the contractor’s work and materials. Any work requiring a permit must be inspected by the city when the project is finished, so be sure you understand what standards of construction and safety you must meet.

If you live in a condominium, also check the '''bylaws''' of the strata corporation to find out if your project is allowed, whether you need the strata corporation’s approval, and if there are any restrictions.

===Get written estimates for the work===
Get more than one estimate, and get them in writing. Most contractors will give a free estimate. You should ask for the estimate to set out clearly the work to be done and the cost of materials and labour, so you know what you’re getting for the money. Remember the 5% GST (goods and services tax) and 7% provincial sales tax. Make sure the contractor includes these taxes in the price.

===Do research on any contractor you’re considering===
Cost estimates from potential contractors are one factor in choosing a contractor. But that’s not all you should consider. Don’t automatically choose the lowest estimate — make sure you get the workmanship and quality of materials you want.

Ask friends if they can recommend a good contractor. Ask contractors for the names and phone numbers of people they’ve worked for — and check them out.

The [http://www.bbb.org/ Better Business Bureau] can tell you if there have been any complaints about a contractor. Also, some trades must be licensed or certified by provincial or municipal authorities; others have voluntary organizations that set standards. Search online to find the appropriate authority or organization to verify the status of the contractor you’re considering. You should also ask the contractor to give you the names of any sub-trades they may use on your project — plumbers, electricians, and others — and check them out too. Online searches will often show user reviews of contractors, which may be helpful.

{| class="wikitable"
|align="left"|'''Tip'''
Be careful of home repair contractors who go door-to-door or ask for a lot of money up front. If you think you’ve been unfairly pressured by a door-to-door salesperson or contractor, you may be able to get out of the contract if you act quickly. To learn more, see our information on [[Door-to-Door Sales, Time-Shares and Contracts You Can Cancel (Script 255)|door-to-door sales and other contracts you can cancel (no. 255)]].
|}

===Get a written contract===
Once you choose a contractor, put your agreement in writing. Don’t rely only on a verbal agreement and a handshake. A verbal contract is legal, but it’s hard to prove exactly what you both agreed to. A written contract will help you sort out any misunderstandings.

If your contractor makes a promise or a guarantee, include it in your written contract. The law implies certain terms that aren’t written — for example, that the work will be done in a proper and workmanlike manner, and that the materials used will be of reasonable quality. But in every case, your best protection is a clear written contract.

===Be clear on the contract price and payment terms===
One of the terms in your contract will be the contract price and how you are going to pay it. Unless the job is small, you will likely want a definite price based on a written estimate, rather than an hourly rate that may add up to far more than you want to pay.

Also, don’t make a large deposit or pay a lot in advance. You don’t want to end up paying more than the value of the work and materials you receive. Instead, it’s a good idea to pay in '''installments''', as the work progresses. The contract should say you will make installment payments, and when you will make them.

As for materials and supplies, remember to put in your contract that you’ll pay only for materials used, not for all materials bought — in case the contractor buys too much. The contractor should also agree to give you receipts for all materials bought. And you should verify them.

Be sure to clearly express any '''deadlines''' your contractor must meet and what happens if they’re not met.

===Include terms to protect yourself in case someone gets injured===
To protect yourself in case someone gets hurt while working on the project, the contract should say that the contractor:
*is bonded and insured to indemnify (pay) you if you are liable for a worker getting hurt on your property
*is registered with Work Safe BC for workers’ compensation
*has all required permits and licences (for example, electricians must have a licence to work in BC)

You should also ensure your home insurance covers any damage claims by the contractor.

[updated January 2018]

'''The above was last reviewed for legal accuracy by [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Neighbour Law

2019-03-06T05:14:47Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
Learn your legal rights and options if you have a problem with a neighbour. This information covers problems involving noise, untidiness, dogs, fences, trees, second-hand smoke, water damage, and trespassing.

==Understand your legal rights==

===If your neighbour creates noise disturbances===
Many of us have had our peace and quiet disturbed by squealing tires, loud stereos, barking dogs, or noisy equipment. What can you do to stop it? First, try talking to the person causing the noise. They may not realize how irritating it is.

====Noise bylaws====
If that doesn’t work, call your city or town hall and ask if there is a '''noise bylaw'''. If there is one, talk to the person who enforces it. For example, in Vancouver, you would call the environmental health officers. Each municipality’s noise bylaw is different, but most are broad. In Vancouver and many other municipalities, the bylaw covers noise from animals including dogs and birds, heavy duty equipment, lawnmowers, loud parties, stereos, and many other things. Usually, the municipality’s enforcement officer will try to solve the problem informally. If they can’t, they may prosecute the person in court for violating the bylaw.

====Causing a disturbance====
If the noise is on a weekend or at night and city hall is closed, you can call the police. If a person is screaming, shouting, swearing, or singing to the point they are creating a nuisance for others, they may be '''causing a disturbance''' — an offence under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec175_smooth Criminal Code]''. In all these cases, call the police and report it.

====Bringing a lawsuit====
You can also '''sue''' the person causing the noise. You could sue for damages for nuisance or negligence, or ask the court to order the person to stop the noise. But this can be a long, expensive, and stressful process, and there’s no guarantee you will win. There may be cases without a solution. For example, a noise or odour may be permitted by zoning or custom (in an industrial or agricultural area). And a court may decide that the noise or odour isn’t significant enough to be a nuisance.

===If your neighbour keeps untidy premises===
Most municipalities have bylaws to control garbage, junk, overgrown yards, or abandoned vehicles. For example, in Vancouver, every property owner must keep their property in neat and tidy condition, consistent with a reasonable standard of maintenance common in the neighbourhood. In these cases, it is best to speak with a neighbour if possible. If this fails or is impossible, your next step is the local government. Explain your situation to the person who enforces bylaws. They may investigate and if your complaint is valid, order the owner to clean up the property. If the owner doesn’t, the municipality can clean it up at the owner’s expense.

===If your neighbour owns dogs===
The responsibilities of dog ownership are described in four places: local bylaws, provincial laws, the ''Criminal Code'', and the common law.

====Local bylaws====
Local bylaws cover licensing and may prohibit dogs from being in certain places. You can find a copy of local bylaws at your public library or on your municipality’s website. On the website [https://www.civicinfo.bc.ca/documents CivicInfo], you can search across BC local government websites to find local bylaws.

Many local governments have passed bylaws to prohibit dogs running loose. In Vancouver, for example, dogs cannot be on the street or in a public place unless they’re on a leash not more than eight feet long (two and a half meters) — except in off-leash parks. As well, female dogs must be kept indoors when they’re in heat.

The Vancouver animal control bylaw also requires “aggressive” dogs — those with a known tendency to attack or bite, or dogs that have bitten another domestic animal or person without provocation — to be muzzled or kept indoors or in a pen. The city may seize and impound (for up to three weeks) a dog that has bitten someone. A dog found running loose, or unlicensed, will be taken to the pound and, if it isn’t claimed within three days, it may be put up for sale or destroyed. The owner could also be charged fees to cover the cost of impounding the dog, keeping it at the pound, and any veterinary services it needs. The owner may be fined for violating the bylaw.

Health bylaws in Vancouver and elsewhere prohibit dogs in restaurants and other places where food is kept or handled. These bylaws don’t apply to private homes, nor do they prohibit “seeing-eye” or other types of service dogs from entering restaurants or other public establishments.

Vancouver has a bylaw requiring a dog owner to pick up their dog’s excrement on property that is not their own. Failure to do so can result in a fine of up to $2,000. This law does not apply to working “seeing-eye” dogs or service dogs.

Vancouver’s animal control bylaw also regulates the noise of barking or howling dogs. For example, if your neighbour has a dog whose barking unreasonably disturbs the peace and quiet of the neighbourhood, they could be fined up to $2,000. Other local governments also regulate dog barking in their noise-control bylaws.

====Provincial laws====
The BC ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96270_01 Livestock Act]'' protects farm animals from attacks by dogs. For example, anyone can harm or kill a dog that is running at large and attacking or viciously pursuing livestock. Livestock includes cattle, goats, horses, sheep, swine, or game.

Under the BC ''[https://www.canlii.org/en/bc/laws/stat/sbc-2003-c-26/latest/sbc-2003-c-26.html#sec49_smooth Community Charter]'', local governments may seize and impound some dangerous dogs. The local government may apply to court for an order to destroy the dog. The local government does not need a specific local bylaw to exercise these powers.

====The ''Criminal Code''====
It’s against the ''Criminal Code'' to willfully cause unnecessary pain or suffering or injury to any animal or to willfully neglect or fail to provide suitable and adequate food, water, shelter, and care for it. If someone doesn’t take reasonable care of their dog, they could face a fine or jail term and a criminal record. Also, if they don’t take reasonable care to prevent their dog from harming others, and an attack or injury occurs as a result, they may be charged with criminal negligence.

====Under the common law====
If someone’s dog injures a person, the injured person may sue the dog owner under the common law in civil court. If they succeed, the dog owner has to pay damages for the injuries the dog caused.

A legal concept known as “'''the doctrine of scienter'''” applies to dog bites in BC. This doctrine requires the following things to be proven in court for a dog owner to be liable for a dog bite or other attack:
*the person owns and controls the dog,
*the dog has a history or tendency for violence, and
*the owner knew of that history or tendency for violence.

But the court may not follow this doctrine. Or it may apply it in a way that is unexpected. If a dog bites you and you want to know your options, contact a personal injury lawyer. The [https://www.cbabc.org/For-the-Public/Lawyer-Referral-Service Lawyer Referral Service] can refer you to a lawyer for an initial consultation. Call 1-800-663-1919.

===If your neighbour builds a fence===
Local bylaws often control how high a fence can be, both natural fences, including hedges, and those built of wood, stone, or other materials. If your neighbour builds a fence higher than the bylaw allows, you can talk to them about it. You can also call the city, which can order the person to obey the law. Without a complaint, your municipality is unlikely to inspect neighbourhood fences to see if they comply with height bylaws.

A fence on a property boundary belongs to both property owners. People often share the cost of a fence, but they don’t have to. Both are responsible to keep it in good shape and they must get permission from the other one to take it down. The section below on “trespass” has more on fences.

===If your neighbour has trees or hedges on their property===
If your neighbour’s tree branches hang over your property, you can cut them, but only up to the property line. You cannot go onto your neighbor's property or destroy the tree. The reverse case is also true.

If a tree on your property somehow damages your neighbour’s property (for example, a branch falls on their roof during a storm), you are not responsible for the damage unless it was caused intentionally or through negligence. '''Negligence''' means you did not take reasonable care or you were warned or knew the tree was damaged or diseased and may fall. But if your tree’s roots go under their property and damage their pipes, lawn, or foundation, you may be responsible under the common law principle of “'''nuisance'''”. Whether you will be liable for any damages depends on the facts of the case, but normally the courts will not allow use of a property that causes substantial discomfort to others or damages their property.

===If your neighbour is a smoker===
If your neighbour’s smoke comes into your house, you should first speak with the neighbour. If that doesn’t work, what to do depends on the situation. Does the smoke come from a tenant? If so, does the lease prohibit smoking? If not, you still have the right to “'''quiet enjoyment'''” of your property, and the smoke may violate that right or be a '''nuisance''' under common law. You can speak to a lawyer if you want to sue because of second-hand smoke.

===If your property suffers water damage===
Normally, a neighbour is not responsible for damage caused by the natural conditions of land. For example, if rain runs from a neighbour’s yard onto your property and makes your lawn soggy and kills the grass, your neighbour is not likely responsible. But if a neighbour changes their property and the change causes more rainwater to run onto your property than before and causes damage, your neighbour may be financially liable to you. Similarly, your neighbour may be liable if they are '''negligent'''. An example of negligence could include leaving a sprinkler running too long, so that it flooded your property and caused damage.

===If your neighbour comes onto your property without your permission===
If a neighbour comes onto your property without your permission, they are '''trespassing'''. If they refuse to leave when asked, you can call the police.

If a neighbour builds a fence or other structure, such as a shed, that '''encroaches''' on (goes onto) your property, this is also a form of trespass. Often the encroachment is unintentional and can be resolved by getting a land survey. If you have spoken with your neighbour about the matter and have had a survey showing that the structure is encroaching, you can sue your neighbour for trespass. A court can order the neighbour to remove and relocate the fence or structure so it’s off your property.

===You might consider mediation===
If you are unable to resolve the matter directly with your neighbour, you could consider '''mediation'''. This involves you and your neighbour meeting with a mediator, who works to help you reach an agreement. Mediation is much less expensive and quicker than taking legal action, and can help preserve a good neighbourly relationship.

{| class="wikitable"
|align="left"|'''Tip'''
On the Mediate BC website, you can [http://www.mediatebc.com/Find-a-Mediator/Find-a-Mediator.aspx?RosterTypeId=1 search for a mediator] based on the community you live in and the type of problem you have. Selecting “Community/Neighbourhood” under Practice Areas can help narrow your search.
|}

[updated October 2017]

'''The above was last reviewed for legal accuracy by [https://www.sorensensmith.com/our-people/ Daniel Sorensen], Sorensen Smith LLP, [https://www.ganapathico.com/our-team/nathan-ganapathi/ Nathan Ganapathi] and [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Garapathi Group law.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Builders Liens

2019-03-06T04:57:37Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
Occasionally, those who work or supply materials on a construction project aren’t paid for the work or materials supplied. A “builders lien” can help them collect the money they’re owed.

==Understand the legal framework==

===A builders lien can help someone get paid for work or materials provided to a construction project===
The ''[https://www.canlii.org/en/bc/laws/stat/sbc-1997-c-45/latest/sbc-1997-c-45.html#sec2_smooth Builders Lien Act]'' gives an individual or company a '''lien''' for money they are owed for work or materials supplied on a construction project. This law gives them a lien on the building, the owner’s interest in the building, the land involved, and the materials supplied.

When a builders lien is '''filed''' in the Land Title Office, it becomes a charge against the title to the land which was improved by the work or materials.

A builders lien can be an effective tool for those who provided work or materials on a construction project to recover money they’re owed.

===Who can claim a builders lien===
An individual or company can claim a builders lien if they are any of the following on a construction project:
*workers on the project
*suppliers of materials (including renters of equipment) used on the project
*contractors hired by the owner to work on the project
*subcontractors hired by the contractor or by other subcontractors to work on the project
*engineers or architects on the project

However, a person who performs work or supplies material to an architect, engineer or material supplier can’t claim a builders lien.

===Why someone might file a builders lien===
A lien claimant can file a builders lien in the Land Title Office to secure payment for work or material supplied to a construction project.

A large construction project is like a pyramid. The owner or developer is at the top. They may hire a general contractor. The general contractor may hire several subcontractors to handle specific parts of the job, such as concrete work, plumbing, electrical work, and so on. Those subcontractors may in turn hire workers and material suppliers. Somewhere in this chain of contracts, someone may not get paid.

The ''[http://canlii.ca/t/84j9 Builders Lien Act]'' helps those who have worked on a construction project or supplied material to it, but haven’t been paid. Under this law, they can file a charge against the land which was improved by the work or materials, to secure payment of the money owed to them.

A lien claimant must act quickly to file a lien. If they wait too long, they lose the right to do so. Generally, the deadline to file a lien is '''45 days''' after the project is substantially completed, abandoned or ended. We explain the process to file and enforce a builders lien shortly.

===If someone files a builders lien===
Because a builders lien is registered against the land, it can interfere with the landowner’s ability to sell the property or maintain mortgage financing for a construction project. This may encourage the landowner to take steps to “clear” the lien, which may involve paying the lien or providing other security.

That said, a landowner may not want to pay off the lien if there is a dispute about whether the claim is valid. Or the landowner may not be the person in default — for example, the lien claimant may have supplied materials to a subcontractor who has not paid for them.

In situations like these, the landowner may not want the property tied up in a long court battle that interferes with selling or mortgaging it. The ''[https://www.canlii.org/en/bc/laws/stat/sbc-1997-c-45/latest/sbc-1997-c-45.html#sec23_smooth Builders Lien Act]'' lets a landowner apply to court to '''pay money into court''' — either the full amount of the lien or a smaller amount linked to the amount held back from the person who owes the money (we explain the holdback scheme shortly).

The court can then order the lien to be removed from the title of the property. Then the lien has no further effect on the property. The money paid into court is held as security for the lien — to be paid to the claimant if the lien is eventually proven.

{| class="wikitable"
|align="left"|'''Tip'''
A land title search will typically show whether a builders lien has been filed against a property.
|}

===The owner must hold back 10% of the contract price, in case there are liens===
On a construction project, an owner could pay the contractor in full, only to see the contractor default on its payment to a subcontractor. Or a subcontractor might fail to pay its workers or suppliers. If all the unpaid parties filed liens, the owner would potentially have to pay twice — once to the contractor and again to the lien holders.

To avoid this unfairness, the ''Builders Lien Act'' requires an owner to hold back 10% of each payment to the contractor in a special account so there is money available for payment of liens. This is called the '''builders lien holdback'''.

The owner must hold back 10% of the contract price until 55 days after the general contract is substantially completed, abandoned, or otherwise ended.

After the 55 days are up, if no liens have been filed within the 45-day limit (and no lawsuit making a lien claim has been started), the owner can pay out the 10% holdback to the contractor. But if any liens have been filed, the holdback may be used to help pay these liens.

Often, the total of all liens filed by all claimants is greater than the holdback. The owner does not have to pay lien claimants more than the holdback amount. So claimants may receive only part of their lien — it depends on the details of the case. The Act sets out how claimants share the holdback.

===Contractors must hold back 10% from any subcontractors they hire===
BC has a '''multiple holdback system'''. So contractors and subcontractors must also hold back 10% from any subcontractors they hire. But no holdback can be kept from workers, material suppliers, architects, or engineers — they must be paid in full. The value of these holdbacks may limit the amount a lien claimant can recover under the ''Builders Lien Act''.

====A contractor or subcontractor can speed things up====
Contractors or subcontractors who have finished their part of a project may not want to wait until the whole project is done to get the 10% held back from them. The Act allows a holdback to be released 55 days after a '''certificate of completion''' is issued for their work. If the architect issues a certificate of completion for their contract or subcontract, the person can get their holdback 55 days after the certificate is issued — unless any liens have been filed within the 45-day time limit or any lawsuits have been filed against the holdback.

==The steps to enforce a builders lien==

===Step 1. A lien claimant files a builders lien===
To file a builders lien, the lien claimant must fill out a '''claim of lien''' (in [http://canlii.ca/t/84px Form 5]). The claimant must file this form in the Land Title Office where the land involved is registered. The form must include the legal description of the project site — a street address is not enough. You can get the legal description from [http://www.bcassessment.ca/ BC Assessment].

Generally, the deadline to file a lien is '''45 days''' after the project is substantially completed, abandoned or ended. One of the events that can start the clock running to file a lien is when a “'''certificate of completion'''” is issued for a contract or subcontract. Then the deadline is 45 days from the date the certificate was issued.

{| class="wikitable"
|align="left"|'''Tip'''
Even if a claimant has not filed a lien within the time limit, they may be able to sue in court for a portion of any holdback funds that have not yet been distributed. As builders liens involve legal complexities, tight filing timelines, and detailed paperwork, it’s wise to get legal advice.
|}

===Step 2. The lien claimant sues to prove the builders lien===
A lien claimant must sue in court to enforce the lien and prove it is valid.

The lawsuit must be started in a Supreme Court registry near the property. The claimant must also file a “'''certificate of pending litigation'''” against the property in the Land Title Office after filing the lawsuit.

A claimant must do both these things (sue in court and file the certificate of pending litigation) within '''one year''' of filing the builders lien. If they don’t, the lien is no longer valid.

====A landowner — or others on the project — can speed things up====
A landowner, or other people involved in the construction project, can give the lien claimant a written notice to speed up the process. If this happens, the claimant must start the lawsuit and file the certificate of pending litigation within '''21 days''', instead of the usual year. If the claimant misses this time limit, the lien is removed.

===Step 3. The court decides on the lien’s validity===
If the lien claimant’s lawsuit reaches a court hearing, the court decides whether the lien is valid. If the court finds the lien is valid, the court may order the '''sale of the property''', and the use of the sale proceeds to pay the lien. If the court decides the lien is not valid, it will remove the lien.

Sales of property to pay liens are actually quite rare. More often, if liens are proven, the amount of the holdback fund available to satisfy the liens is calculated. Then the parties negotiate and the lien claimants are paid their proportionate share of the available holdback funds.

==Common questions==

===I am buying a new home. Should I be worried about builders liens?===
Yes. If you buy the home within 45 days of its completion, there could be lien claims filed after you become the owner. You could be in the position of having to pay the liens, even though you already paid the purchase price in full. The ''[https://www.canlii.org/en/bc/laws/stat/sbc-1997-c-45/latest/sbc-1997-c-45.html#sec4_smooth Builders Lien Act]'' has provisions that deal with this problem by permitting buyers to hold back 10% of the purchase price from the seller until the time for filing liens expired, but these provisions have '''not''' been proclaimed. As a result, you must ensure your contract permits you to hold back funds if the time for filing liens has not expired by closing.

===I’m doing a home renovation. Do I need to arrange for a special holdback account?===
The ''Builders Lien Act'' requires an owner to hold back 10% of each payment to a contractor for a period of time, so there is money available for payment of liens. The holdback must be placed in a special account for each contract. The requirement for a special account does '''not''' apply where the value of work and material supplied is less than $100,000. This is often the case with a home renovation. (To be clear: the requirement to hold back 10% ''does'' apply; the requirement for a special account does not apply.)

===What is meant by the term “trust fund” in the builders lien context?===
The ''Builders Lien Act'' says that money received by a contractor or subcontractor for work done constitutes a “'''trust fund'''” for the benefit of people they hire on the project. Trust funds cannot be used to the personal benefit of a contractor or subcontractor until they pay the people they hire on the project. A contractor or subcontractor who does not follow these trust rules may be personally liable for '''breach of trust'''. This is sometimes a way for lien claimants who are not fully paid using their lien rights to recover further amounts owed to them.

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Garapathi Law group.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Residential Tenancy

2019-03-05T06:35:41Z

Dial-A-Law: /* BC’s residential tenancy law */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
BC’s residential tenancy law applies to most types of rental housing in the province. Learn key aspects of this law, and answers to common questions raised by tenants and landlords.

==Understand the legal framework==

===BC’s residential tenancy law===
Most rental housing in BC is governed by the ''[http://canlii.ca/t/84lm Residential Tenancy Act]''. This is BC’s main law setting out protections for tenants and landlords. It applies to rental apartments and rented houses, including secondary suites. It also applies to rentals in many other types of housing, such as rented strata units and rented co-op units.

But it doesn’t cover all types of tenancies. For example, tenancies in manufactured home parks are covered by the ''[http://canlii.ca/t/84ll Manufactured Home Park Tenancy Act]''.

The [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies?keyword=residential&keyword=tenancy&keyword=branch Residential Tenancy Branch] is the BC government agency that administers the ''Residential Tenancy Act''. They help tenants and landlords resolve problems by providing a formal dispute resolution process. We explain this process shortly.

===Responsibilities of tenants and landlords===
Under BC’s residential tenancy law, '''tenants''' are responsible for:
*paying rent and other fees in the tenancy agreement on time
*keeping the rental unit and common areas clean
*repairing any damage they or their guests cause, as soon as possible (this does not include reasonable wear and tear)
*telling the landlord of any needed repairs or problems, such as mice, cockroaches, or bedbugs
*not disturbing other people living in the building or neighbouring property and not letting guests do so either

'''Landlords''' are responsible for:
*making sure the rental unit and the building are reasonably safe, healthy, and suitable to live in
*providing a tenancy agreement, condition inspection reports, and giving receipts for rent or other fees paid in cash
*doing repairs and keeping the rental unit and building in good condition
*ensuring the rental unit and building has proper heating, plumbing, electricity, locks, walls, floors, and ceilings (with no water leaks or holes)
*maintaining anything included in the tenancy agreement, such as the fridge, stove, laundry facilities, garages, and storage sheds
*paying the utility bills if utilities are included in the rent

===At the beginning of a tenancy===

{| class="wikitable"
|align="left"|'''Tip'''
Before renting a unit, a tenant should:
*inspect the rental unit carefully, with the landlord, and make sure it’s suitable
*read the tenancy agreement before signing it
*know who the landlord is and get the landlord’s full name, address, and phone number
|}

====The tenancy agreement====
Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-78/latest/sbc-2002-c-78.html#sec12_smooth Residential Tenancy Act]'', a landlord must prepare a written '''tenancy agreement''' for every tenancy. The tenancy agreement must cover several things, including whether the tenancy is periodic (for example, weekly or monthly) or a fixed term, the amount of the rent, when rent is due, what services are included, and the amount of the security deposit. The Residential Tenancy Branch website has a [http://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/starting-a-tenancy/tenancy-agreements tenancy agreement template].

Both the landlord and tenant must sign and date the tenancy agreement. Within '''21 days''' of entering into the agreement, the landlord must give the tenant a copy of the agreement.

If a landlord doesn’t prepare a tenancy agreement, [https://www.canlii.org/en/bc/laws/regu/bc-reg-477-2003/latest/bc-reg-477-2003.html#sec13_smooth standard terms] prescribed under BC’s residential tenancy law apply to the tenancy.

====Condition inspection report====
The landlord and tenant together must inspect the condition of the rental unit at the start of the tenancy. The landlord must complete a '''condition inspection report''', and both parties must sign it. This is a written record of the condition of the rental unit. The report should show if the rental unit is not in good condition. For example, there may be stains on the rug or holes in the walls. The report can include photographs. This report can be useful if there is a disagreement later.

The landlord must give the tenant a copy of the condition inspection report within '''seven days''' after the inspection is completed.

===Ending a tenancy — by the landlord===
A landlord can give a tenant a '''notice to end tenancy''' for certain reasons. The tenant can dispute the landlord’s reasons. The most common reasons are explained here.

====For failing to pay rent====
A tenant must pay their rent, in full and on time. If they don’t, the landlord can give the tenant a “'''10-day notice to end tenancy'''” for non-payment of rent. Then the tenant has five days either to pay all the rent owing — which cancels the notice — or to apply for dispute resolution. Otherwise, the tenant must move out within 10 days after receiving the notice.

If a tenant does neither, the landlord can apply to the Residential Tenancy Branch for an '''order of possession'''. The Branch may issue the order without holding a hearing.

A landlord cannot take a tenant’s personal property or lock the tenant out for failing to pay rent. If a landlord takes a tenant’s property, the tenant can apply for dispute resolution, asking the Branch to order the landlord to return the property or pay the tenant for it.

====For “cause”====
The landlord must give the tenant '''one month’s notice''' in this case. The most common cause is repeated late payment of rent. Other common causes are disturbing other occupants, seriously damaging the rental unit or the building, or having too many people living in the rental unit.

Other reasons a landlord may point to as amounting to “cause” include taking part in illegal activity that harms — or is likely to harm — the building or other occupants, or breaking a rule in the tenancy agreement and ignoring a landlord’s written notice.

====For demolition, renovation or repair, or conversion====
A landlord must give a tenant '''four months’ notice''' of this. A tenant has 30 days to dispute it. A landlord may want to renovate or tear down the building or convert it to condominiums. A tenant is entitled to one month’s rent when a landlord issues a four-month notice to end a tenancy.

If a landlord or purchaser ends a tenancy with this notice but then doesn’t take steps to follow through with the stated plans within a reasonable time, or use the place for the stated purpose for at least six months, they must compensate the tenant for 12 months’ rent. A tenant must apply to the Branch to get this extra compensation.

====For use by landlord or purchaser or their close family member====
A landlord must give a tenant '''two months’ notice''' of this. A tenant has 15 days to dispute it. A tenant is entitled to one month’s rent when a landlord issues a two-month notice to end a tenancy.

If a landlord or purchaser ends a tenancy with this notice but then doesn’t take steps to follow through with the stated plans within a reasonable time, they must compensate the tenant for 12 months’ rent. A tenant must apply to the Branch to get this extra compensation.

===Ending a tenancy — by the tenant===
A tenant can end a tenancy by giving written notice to the landlord. The notice must include the address of the rental unit and the date the tenant is moving out.

For a month-to-month or '''periodic tenancy''', the landlord must receive the tenant’s notice at least '''one month''' before the effective date of the notice and before the final month’s rent is due.

For a '''fixed-term tenancy''' that requires the tenant to move out at the end of the term, the tenant can move then without giving the landlord notice. For a fixed-term tenancy that doesn’t require the tenant to move out at the end of the term, the tenant must give written notice to end the tenancy at least '''one month''' before the effective date of the notice and before the day that rent is due.

A tenant may also be able to end a tenancy if a landlord breaches a '''material term'''. For example, if the landlord refuses to provide essential services such as heat, electricity or water. The tenant must first give written warning that a term has been breached and ask the landlord to fix the breach. If, after a reasonable time, the landlord has not fixed the breach, the tenant can end the tenancy after the landlord receives notice in writing.

===How disputes are resolved===
'''Dispute resolution''' is the formal process for resolving disputes between landlords and tenants. The process involves a '''hearing''', like a court hearing, but less formal. Hearings are usually by phone teleconference. Both landlords and tenants can explain their side of the case and call witnesses to do the same.

The Residential Tenancy Branch [http://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/solving-problems/dispute-resolution website] explains how to apply for dispute resolution, how to tell the other side of the hearing, how to prepare for a hearing, and how to ask for review of a decision.

====Applying for dispute resolution====
A landlord or tenant can apply for dispute resolution [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/apply-online online] or at a [http://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/contact-the-residential-tenancy-branch Branch office], unless there isn’t one nearby. Then, apply at a [http://www.servicebc.gov.bc.ca/ Service BC office]. There’s an [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/apply-online/fees-and-fee-waivers application fee] that depends on the type of application.

If you apply for dispute resolution, you will receive an information package you must '''serve''' on (give to) the other side, in person or by registered mail.

====At the hearing====
The parties have an opportunity to present evidence related to the claim. An '''arbitrator''' makes a final and legally-binding decision.

====Review of a decision====
A party to a dispute resolution proceeding may apply to the Residential Tenancy Branch for a '''review''' of the arbitrator’s decision.

A review may only be considered if:
*a party couldn’t attend the hearing due to circumstances they couldn’t foresee or control, or
*a party has new evidence not available at the time of the hearing (meaning it did not exist), or
*a party has evidence that the decision was obtained by fraud.

==Common questions==

===Can a landlord ask for a security deposit at the beginning of a tenancy?===
Yes. A landlord can require a tenant to pay up to a half-month’s rent as a '''security deposit'''. But they can’t require another deposit if the rent goes up during the tenancy. A tenant should pay the deposit when they sign the tenancy agreement. They have to pay it within 30 days of moving in. If they don’t, the landlord can give them a '''one-month notice''' to end the tenancy. A tenant should always get a receipt for the security deposit. A landlord has to give a receipt if the tenant pays with cash.

A landlord can also require a '''pet damage deposit''' of another half-month’s rent — but only one deposit, no matter how many pets a tenant has.

A landlord must pay interest on security and pet damage deposits when returning the deposits to the tenant — at the rate the BC government sets each year. The Residential Tenancy Branch website has a [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/ending-a-tenancy/returning-deposits deposits calculator].

===What kinds of fees can a landlord charge?===
A landlord can charge a '''refundable fee''' for keys and other access devices — but not if the key or access device is the tenant’s only way to access the property. They must repay the fee when the tenant returns the key or device.

A landlord can charge a '''non-refundable fee''' for things like additional keys, access devices, and garage-door openers, and to replace these things. They can also charge a non-refundable fee for certain other things, such as a service charge from a financial institution if a tenant’s cheque is returned.

In all cases, the fees can’t be more than the actual cost of the items.

===When can a landlord increase rent?===
A landlord can increase rent only once in a 12-month period and only by the amount allowed under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-78/latest/sbc-2002-c-78.html#sec40_smooth Residential Tenancy Act]''. The Residential Tenancy Branch website includes a [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/during-a-tenancy/rent-increases rent increase calculator]. Before increasing rent, a landlord must give a tenant three full months’ notice using the form called “'''notice of rent increase'''”. The landlord must also serve the notice on the tenant in the way the Act requires.

===Can a tenant sublet their unit?===
A tenant can assign or sublet their tenancy agreement with the '''consent''' of the landlord. The landlord’s consent is always required, but the landlord must not unreasonably withhold consent if the tenant has a fixed-term tenancy of six months or more.

If a tenant gets a roommate who does not have a tenancy agreement with the landlord, the roommate is not covered by residential tenancy laws and does not have any standing with the landlord. Disputes between tenants and roommates are not handled by the Residential Tenancy Branch. Instead, the parties would have to go to the [https://civilresolutionbc.ca/ Civil Resolution Tribunal] (for disputes up to $5,000) or [http://www.smallclaimsbc.ca/ Small Claims Court] (for disputes from $5,000 to $35,000).

===Can a landlord enter a tenant’s rental unit?===
Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-78/latest/sbc-2002-c-78.html#sec29_smooth Residential Tenancy Act]'', a landlord can’t enter a tenant’s unit, except in certain specific situations. A landlord can enter a tenant’s unit:
*In an '''emergency''', like a fire or flood.
*If the landlord gives the tenant between 24 hours and 30 days '''written notice''', saying what date and time they want to come in, and giving a good reason, such as doing repairs or showing the unit to potential tenants or purchasers.
*If the landlord gets an '''order''' from the Residential Tenancy Branch to enter the rental unit.
*If the landlord wants to '''inspect''' the rental unit. They can do this once a month — if they give proper notice.
*If the landlord has the tenant’s '''permission'''.

Except in an emergency, a landlord can come in only between 8 am and 9 pm — unless the tenant agrees to other times. Neither tenants nor landlords may change locks, except in an emergency or if they both agree in writing.

===What if a tenant’s right to “quiet enjoyment” is not respected?===
Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-78/latest/sbc-2002-c-78.html#sec28_smooth Residential Tenancy Act]'', a tenant is entitled to '''quiet enjoyment''' of their rental unit. This includes the right to reasonable privacy and to be free from unreasonable disturbance. A landlord can’t interfere, or let other occupants or employees interfere, with a tenant’s right to quiet enjoyment of their unit. Noise, sights, and smells can all interfere with quiet enjoyment. If a tenant has noisy neighbours, they can call the police, as well as the landlord. The outcome in part depends on the municipal noise bylaw where the tenant lives. Some municipalities prohibit noise after a certain time at night.

A tenant can’t withhold rent if their landlord or other tenants interfere with their privacy or quiet enjoyment. However, they can apply for dispute resolution and compensation.

A tenant can have guests — they’re not the landlord’s business. But if it looks like the guests have moved in, the tenant may be breaking the tenancy agreement. The landlord may increase the rent — but only if the tenancy agreement allows for a rent increase if more people move into the rental unit. Or the landlord may try to end the tenancy because of an unreasonable number of occupants.

===What if a landlord won’t make a needed repair?===
If a landlord won’t make a necessary repair, a tenant should first talk to the landlord and then make a written request to the landlord to make the repair. If that doesn’t work, the tenant can apply for dispute resolution. A tenant should not hold back rent or pay for the repairs, hoping the landlord will pay them back — unless the landlord has agreed in writing to do so.

===Can a landlord take away a service?===
A landlord can take away a service (but not an essential service) if they give 30 days’ written notice to the tenant and reduce the rent by the value of the cancelled service.

===At the end of a tenancy, how can a tenant get their security deposit back?===
At the end of the tenancy, the landlord and tenant together must do an inspection of the rental unit. The landlord must complete a '''condition inspection report'''. The landlord must give the tenant a copy of the inspection report within 15 days after the tenant moves out or when they get the tenant’s forwarding address — whichever is later. A landlord who doesn’t complete the report may lose the right to claim against the security deposit for any damages to the unit or building. A tenant who doesn’t do the inspection may lose the right to get their security deposit back.

After a tenant moves out and gives a landlord a forwarding address in writing, the landlord must do one of the following things '''within 15 days''':
*return the security deposit and any pet damage deposit with interest
*ask the tenant to agree in writing to any deductions the landlord wants to keep and then return the rest of the deposits
*file a dispute resolution application asking to keep some or all of the deposits

If the landlord does not do any of these things, the tenant may be able to get double the deposit provided. If a tenant gives the landlord their written forwarding address within one year of moving out, but the landlord does not return the deposit, the tenant has two years from the end of the tenancy to apply to the Residential Tenancy Branch for dispute resolution and an order that the landlord return double the deposit.

If the tenant does not give the landlord their forwarding address within one year of moving out, the landlord can keep the security deposit and the pet damage deposit.

==Get help==

===With more information===
The '''Residential Tenancy Branch''' is the BC government agency that administers the ''Residential Tenancy Act''. They help tenants and landlords resolve problems by providing a formal dispute resolution process.
:Telephone: 604-660-1020 in the Lower Mainland and 250-387-1602 in Victoria
:Toll-free: 1-800-665-8779
:Web: [http://gov.bc.ca/landlordtenant gov.bc.ca/landlordtenant]

The '''Tenant Resource & Advisory Centre''' (TRAC) offers a telephone infoline to help tenants experiencing legal problems. They also provide free representation to tenants at dispute resolution hearings in limited situations.
:Telephone: 604-255-0546 in the Lower Mainland
:Toll-free: 1-800-665-1185
:Web: [http://tenants.bc.ca tenants.bc.ca]

'''Landlord BC''' represents landlords and property managers throughout BC, providing advice and answers to legal questions.
:Telephone: 250-382-6324 in Victoria
:Toll-free: 1-888-330-6707
:Web: [https://landlordbc.ca landlordbc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Residential Tenancy

2019-03-05T06:34:26Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
BC’s residential tenancy law applies to most types of rental housing in the province. Learn key aspects of this law, and answers to common questions raised by tenants and landlords.

==Understand the legal framework==

===BC’s residential tenancy law===
Most rental housing in BC is governed by the ''[http://canlii.ca/t/84lm Residential Tenancy Act]''. This is BC’s main law setting out protections for tenants and landlords. It applies to rental apartments and rented houses, including secondary suites. It also applies to rentals in many other types of housing, such as rented strata units and rented co-op units.

But it doesn’t cover all types of tenancies. For example, tenancies in manufactured home parks are covered by the ''[http://canlii.ca/t/84ll Manufactured Home Park Tenancy Act]''.

The Residential Tenancy Branch is the BC government agency that administers the ''Residential Tenancy Act''. They help tenants and landlords resolve problems by providing a formal dispute resolution process. We explain this process shortly.

===Responsibilities of tenants and landlords===
Under BC’s residential tenancy law, '''tenants''' are responsible for:
*paying rent and other fees in the tenancy agreement on time
*keeping the rental unit and common areas clean
*repairing any damage they or their guests cause, as soon as possible (this does not include reasonable wear and tear)
*telling the landlord of any needed repairs or problems, such as mice, cockroaches, or bedbugs
*not disturbing other people living in the building or neighbouring property and not letting guests do so either

'''Landlords''' are responsible for:
*making sure the rental unit and the building are reasonably safe, healthy, and suitable to live in
*providing a tenancy agreement, condition inspection reports, and giving receipts for rent or other fees paid in cash
*doing repairs and keeping the rental unit and building in good condition
*ensuring the rental unit and building has proper heating, plumbing, electricity, locks, walls, floors, and ceilings (with no water leaks or holes)
*maintaining anything included in the tenancy agreement, such as the fridge, stove, laundry facilities, garages, and storage sheds
*paying the utility bills if utilities are included in the rent

===At the beginning of a tenancy===

{| class="wikitable"
|align="left"|'''Tip'''
Before renting a unit, a tenant should:
*inspect the rental unit carefully, with the landlord, and make sure it’s suitable
*read the tenancy agreement before signing it
*know who the landlord is and get the landlord’s full name, address, and phone number
|}

====The tenancy agreement====
Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-78/latest/sbc-2002-c-78.html#sec12_smooth Residential Tenancy Act]'', a landlord must prepare a written '''tenancy agreement''' for every tenancy. The tenancy agreement must cover several things, including whether the tenancy is periodic (for example, weekly or monthly) or a fixed term, the amount of the rent, when rent is due, what services are included, and the amount of the security deposit. The Residential Tenancy Branch website has a [http://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/starting-a-tenancy/tenancy-agreements tenancy agreement template].

Both the landlord and tenant must sign and date the tenancy agreement. Within '''21 days''' of entering into the agreement, the landlord must give the tenant a copy of the agreement.

If a landlord doesn’t prepare a tenancy agreement, [https://www.canlii.org/en/bc/laws/regu/bc-reg-477-2003/latest/bc-reg-477-2003.html#sec13_smooth standard terms] prescribed under BC’s residential tenancy law apply to the tenancy.

====Condition inspection report====
The landlord and tenant together must inspect the condition of the rental unit at the start of the tenancy. The landlord must complete a '''condition inspection report''', and both parties must sign it. This is a written record of the condition of the rental unit. The report should show if the rental unit is not in good condition. For example, there may be stains on the rug or holes in the walls. The report can include photographs. This report can be useful if there is a disagreement later.

The landlord must give the tenant a copy of the condition inspection report within '''seven days''' after the inspection is completed.

===Ending a tenancy — by the landlord===
A landlord can give a tenant a '''notice to end tenancy''' for certain reasons. The tenant can dispute the landlord’s reasons. The most common reasons are explained here.

====For failing to pay rent====
A tenant must pay their rent, in full and on time. If they don’t, the landlord can give the tenant a “'''10-day notice to end tenancy'''” for non-payment of rent. Then the tenant has five days either to pay all the rent owing — which cancels the notice — or to apply for dispute resolution. Otherwise, the tenant must move out within 10 days after receiving the notice.

If a tenant does neither, the landlord can apply to the Residential Tenancy Branch for an '''order of possession'''. The Branch may issue the order without holding a hearing.

A landlord cannot take a tenant’s personal property or lock the tenant out for failing to pay rent. If a landlord takes a tenant’s property, the tenant can apply for dispute resolution, asking the Branch to order the landlord to return the property or pay the tenant for it.

====For “cause”====
The landlord must give the tenant '''one month’s notice''' in this case. The most common cause is repeated late payment of rent. Other common causes are disturbing other occupants, seriously damaging the rental unit or the building, or having too many people living in the rental unit.

Other reasons a landlord may point to as amounting to “cause” include taking part in illegal activity that harms — or is likely to harm — the building or other occupants, or breaking a rule in the tenancy agreement and ignoring a landlord’s written notice.

====For demolition, renovation or repair, or conversion====
A landlord must give a tenant '''four months’ notice''' of this. A tenant has 30 days to dispute it. A landlord may want to renovate or tear down the building or convert it to condominiums. A tenant is entitled to one month’s rent when a landlord issues a four-month notice to end a tenancy.

If a landlord or purchaser ends a tenancy with this notice but then doesn’t take steps to follow through with the stated plans within a reasonable time, or use the place for the stated purpose for at least six months, they must compensate the tenant for 12 months’ rent. A tenant must apply to the Branch to get this extra compensation.

====For use by landlord or purchaser or their close family member====
A landlord must give a tenant '''two months’ notice''' of this. A tenant has 15 days to dispute it. A tenant is entitled to one month’s rent when a landlord issues a two-month notice to end a tenancy.

If a landlord or purchaser ends a tenancy with this notice but then doesn’t take steps to follow through with the stated plans within a reasonable time, they must compensate the tenant for 12 months’ rent. A tenant must apply to the Branch to get this extra compensation.

===Ending a tenancy — by the tenant===
A tenant can end a tenancy by giving written notice to the landlord. The notice must include the address of the rental unit and the date the tenant is moving out.

For a month-to-month or '''periodic tenancy''', the landlord must receive the tenant’s notice at least '''one month''' before the effective date of the notice and before the final month’s rent is due.

For a '''fixed-term tenancy''' that requires the tenant to move out at the end of the term, the tenant can move then without giving the landlord notice. For a fixed-term tenancy that doesn’t require the tenant to move out at the end of the term, the tenant must give written notice to end the tenancy at least '''one month''' before the effective date of the notice and before the day that rent is due.

A tenant may also be able to end a tenancy if a landlord breaches a '''material term'''. For example, if the landlord refuses to provide essential services such as heat, electricity or water. The tenant must first give written warning that a term has been breached and ask the landlord to fix the breach. If, after a reasonable time, the landlord has not fixed the breach, the tenant can end the tenancy after the landlord receives notice in writing.

===How disputes are resolved===
'''Dispute resolution''' is the formal process for resolving disputes between landlords and tenants. The process involves a '''hearing''', like a court hearing, but less formal. Hearings are usually by phone teleconference. Both landlords and tenants can explain their side of the case and call witnesses to do the same.

The Residential Tenancy Branch [http://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/solving-problems/dispute-resolution website] explains how to apply for dispute resolution, how to tell the other side of the hearing, how to prepare for a hearing, and how to ask for review of a decision.

====Applying for dispute resolution====
A landlord or tenant can apply for dispute resolution [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/apply-online online] or at a [http://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/contact-the-residential-tenancy-branch Branch office], unless there isn’t one nearby. Then, apply at a [http://www.servicebc.gov.bc.ca/ Service BC office]. There’s an [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/apply-online/fees-and-fee-waivers application fee] that depends on the type of application.

If you apply for dispute resolution, you will receive an information package you must '''serve''' on (give to) the other side, in person or by registered mail.

====At the hearing====
The parties have an opportunity to present evidence related to the claim. An '''arbitrator''' makes a final and legally-binding decision.

====Review of a decision====
A party to a dispute resolution proceeding may apply to the Residential Tenancy Branch for a '''review''' of the arbitrator’s decision.

A review may only be considered if:
*a party couldn’t attend the hearing due to circumstances they couldn’t foresee or control, or
*a party has new evidence not available at the time of the hearing (meaning it did not exist), or
*a party has evidence that the decision was obtained by fraud.

==Common questions==

===Can a landlord ask for a security deposit at the beginning of a tenancy?===
Yes. A landlord can require a tenant to pay up to a half-month’s rent as a '''security deposit'''. But they can’t require another deposit if the rent goes up during the tenancy. A tenant should pay the deposit when they sign the tenancy agreement. They have to pay it within 30 days of moving in. If they don’t, the landlord can give them a '''one-month notice''' to end the tenancy. A tenant should always get a receipt for the security deposit. A landlord has to give a receipt if the tenant pays with cash.

A landlord can also require a '''pet damage deposit''' of another half-month’s rent — but only one deposit, no matter how many pets a tenant has.

A landlord must pay interest on security and pet damage deposits when returning the deposits to the tenant — at the rate the BC government sets each year. The Residential Tenancy Branch website has a [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/ending-a-tenancy/returning-deposits deposits calculator].

===What kinds of fees can a landlord charge?===
A landlord can charge a '''refundable fee''' for keys and other access devices — but not if the key or access device is the tenant’s only way to access the property. They must repay the fee when the tenant returns the key or device.

A landlord can charge a '''non-refundable fee''' for things like additional keys, access devices, and garage-door openers, and to replace these things. They can also charge a non-refundable fee for certain other things, such as a service charge from a financial institution if a tenant’s cheque is returned.

In all cases, the fees can’t be more than the actual cost of the items.

===When can a landlord increase rent?===
A landlord can increase rent only once in a 12-month period and only by the amount allowed under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-78/latest/sbc-2002-c-78.html#sec40_smooth Residential Tenancy Act]''. The Residential Tenancy Branch website includes a [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/during-a-tenancy/rent-increases rent increase calculator]. Before increasing rent, a landlord must give a tenant three full months’ notice using the form called “'''notice of rent increase'''”. The landlord must also serve the notice on the tenant in the way the Act requires.

===Can a tenant sublet their unit?===
A tenant can assign or sublet their tenancy agreement with the '''consent''' of the landlord. The landlord’s consent is always required, but the landlord must not unreasonably withhold consent if the tenant has a fixed-term tenancy of six months or more.

If a tenant gets a roommate who does not have a tenancy agreement with the landlord, the roommate is not covered by residential tenancy laws and does not have any standing with the landlord. Disputes between tenants and roommates are not handled by the Residential Tenancy Branch. Instead, the parties would have to go to the [https://civilresolutionbc.ca/ Civil Resolution Tribunal] (for disputes up to $5,000) or [http://www.smallclaimsbc.ca/ Small Claims Court] (for disputes from $5,000 to $35,000).

===Can a landlord enter a tenant’s rental unit?===
Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-78/latest/sbc-2002-c-78.html#sec29_smooth Residential Tenancy Act]'', a landlord can’t enter a tenant’s unit, except in certain specific situations. A landlord can enter a tenant’s unit:
*In an '''emergency''', like a fire or flood.
*If the landlord gives the tenant between 24 hours and 30 days '''written notice''', saying what date and time they want to come in, and giving a good reason, such as doing repairs or showing the unit to potential tenants or purchasers.
*If the landlord gets an '''order''' from the Residential Tenancy Branch to enter the rental unit.
*If the landlord wants to '''inspect''' the rental unit. They can do this once a month — if they give proper notice.
*If the landlord has the tenant’s '''permission'''.

Except in an emergency, a landlord can come in only between 8 am and 9 pm — unless the tenant agrees to other times. Neither tenants nor landlords may change locks, except in an emergency or if they both agree in writing.

===What if a tenant’s right to “quiet enjoyment” is not respected?===
Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-78/latest/sbc-2002-c-78.html#sec28_smooth Residential Tenancy Act]'', a tenant is entitled to '''quiet enjoyment''' of their rental unit. This includes the right to reasonable privacy and to be free from unreasonable disturbance. A landlord can’t interfere, or let other occupants or employees interfere, with a tenant’s right to quiet enjoyment of their unit. Noise, sights, and smells can all interfere with quiet enjoyment. If a tenant has noisy neighbours, they can call the police, as well as the landlord. The outcome in part depends on the municipal noise bylaw where the tenant lives. Some municipalities prohibit noise after a certain time at night.

A tenant can’t withhold rent if their landlord or other tenants interfere with their privacy or quiet enjoyment. However, they can apply for dispute resolution and compensation.

A tenant can have guests — they’re not the landlord’s business. But if it looks like the guests have moved in, the tenant may be breaking the tenancy agreement. The landlord may increase the rent — but only if the tenancy agreement allows for a rent increase if more people move into the rental unit. Or the landlord may try to end the tenancy because of an unreasonable number of occupants.

===What if a landlord won’t make a needed repair?===
If a landlord won’t make a necessary repair, a tenant should first talk to the landlord and then make a written request to the landlord to make the repair. If that doesn’t work, the tenant can apply for dispute resolution. A tenant should not hold back rent or pay for the repairs, hoping the landlord will pay them back — unless the landlord has agreed in writing to do so.

===Can a landlord take away a service?===
A landlord can take away a service (but not an essential service) if they give 30 days’ written notice to the tenant and reduce the rent by the value of the cancelled service.

===At the end of a tenancy, how can a tenant get their security deposit back?===
At the end of the tenancy, the landlord and tenant together must do an inspection of the rental unit. The landlord must complete a '''condition inspection report'''. The landlord must give the tenant a copy of the inspection report within 15 days after the tenant moves out or when they get the tenant’s forwarding address — whichever is later. A landlord who doesn’t complete the report may lose the right to claim against the security deposit for any damages to the unit or building. A tenant who doesn’t do the inspection may lose the right to get their security deposit back.

After a tenant moves out and gives a landlord a forwarding address in writing, the landlord must do one of the following things '''within 15 days''':
*return the security deposit and any pet damage deposit with interest
*ask the tenant to agree in writing to any deductions the landlord wants to keep and then return the rest of the deposits
*file a dispute resolution application asking to keep some or all of the deposits

If the landlord does not do any of these things, the tenant may be able to get double the deposit provided. If a tenant gives the landlord their written forwarding address within one year of moving out, but the landlord does not return the deposit, the tenant has two years from the end of the tenancy to apply to the Residential Tenancy Branch for dispute resolution and an order that the landlord return double the deposit.

If the tenant does not give the landlord their forwarding address within one year of moving out, the landlord can keep the security deposit and the pet damage deposit.

==Get help==

===With more information===
The '''Residential Tenancy Branch''' is the BC government agency that administers the ''Residential Tenancy Act''. They help tenants and landlords resolve problems by providing a formal dispute resolution process.
:Telephone: 604-660-1020 in the Lower Mainland and 250-387-1602 in Victoria
:Toll-free: 1-800-665-8779
:Web: [http://gov.bc.ca/landlordtenant gov.bc.ca/landlordtenant]

The '''Tenant Resource & Advisory Centre''' (TRAC) offers a telephone infoline to help tenants experiencing legal problems. They also provide free representation to tenants at dispute resolution hearings in limited situations.
:Telephone: 604-255-0546 in the Lower Mainland
:Toll-free: 1-800-665-1185
:Web: [http://tenants.bc.ca tenants.bc.ca]

'''Landlord BC''' represents landlords and property managers throughout BC, providing advice and answers to legal questions.
:Telephone: 250-382-6324 in Victoria
:Toll-free: 1-888-330-6707
:Web: [https://landlordbc.ca landlordbc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Co-operative Housing: Members' Rights and Duties

2019-03-05T06:11:57Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
A housing co-operative provides housing to its members. As a member of a co-op, you have a say in decisions affecting your housing, and rights and duties under the law.

==Understand the legal framework==

===A housing co-op provides housing to its members===
A housing co-operative, or '''co-op''', is an organization incorporated under the ''[http://canlii.ca/t/84k0 Cooperative Association Act]'' that provides housing to its '''members'''. Members purchase a share to join and elect directors to govern the co-op.

Most housing co-ops in BC are non-profit co-ops with a '''rental''' (not equity) model of housing. The members are typically people who want to live in a mixed-income community where they have a voice and a vote in decisions affecting their housing.

===The laws and rules that apply to co-ops===
Under the ''[http://canlii.ca/t/84k0 Cooperative Association Act]'', a housing co-op must be organized and operated on a cooperative basis. The Act and the [http://canlii.ca/t/85mf regulation under it] set out the framework for things like how co-ops are managed, general meetings, voting, and ending membership.

The '''rules''' adopted by the co-op provide more detail on things like:
*the qualifications of members
*the rights of joint members
*membership obligations to use co-operative services and to pay fees
*the transferability of members’ interest in the co-op
*board of director matters
*financial matters (such as distributing surplus earnings)
*conditions and procedures for withdrawing or ending membership

The board of directors can set other rules that are approved by the members at a meeting called to do that.

A co-op’s '''occupancy agreement''' is like a lease. It sets out members’ rights and responsibilities as residents.

===A co-op is governed by its members===
Members of co-ops work together to govern and manage the co-op through an elected board of directors and various committees. The members themselves, as well as the committees and the board of directors, all hold meetings to deal with things like admitting new members, finance, policy-making, and major decisions for members. Co-ops also hire professional management providers and contract for other services like bookkeeping and maintenance.

===Rights of co-op members===
Together, co-op members own their housing jointly and control the co-op’s governance and management.

A co-op member must own at least one common share in the association and live in one of the co-op housing units. Normally, a member must be at least 19 years old (although a co-op may allow members as young as 16).

Members can:
*attend, speak, and vote at general meetings where major decisions are made, such as changing policies and rules, setting housing charges, and electing directors
*elect the directors, or run for election as one of the directors if they want to help govern the co-op
*live permanently in their unit as long as they need the housing the co-op provides and accept membership responsibilities (if a co-op ends a person’s membership, the person must leave the co-op — if they don’t, *the co-op can apply to court for possession of the person’s unit)
*use services provided by the co-op, at as close as possible to the actual cost
*withdraw from the co-op or transfer their share in it to another person with the consent of the co-op’s directors

====Joint members====
If two or more people are joint members of a co-op, only one of the joint members can be a director at one time, and only the person whose name appears first on the share certificate can vote — unless the co-op’s rules say otherwise. All joint members must pay any assessments, levies, dues, fees, payments, and other charges relating to membership. The co-op can collect that money from any joint member.

{| class="wikitable"
|align="left"|'''Tip'''
Co-op members are not tenants, so the BC ''[http://canlii.ca/t/84lm Residential Tenancy Act]'' does not apply to them. If a person paying rent is not a member of the co-op, and the co-op or one of its members is the landlord, the ''Residential Tenancy Act'' may apply to those rental units. You should get legal advice if it’s not clear whether residential tenancy laws apply.
|}

===Duties of co-op members===
Members must follow the co-op rules, which are made by members. They must:
*follow the rules on parking, maintenance of the housing, and participation in the co-op
*attend general meetings and meetings of any committee they belong to
*make their payments to the co-op, in full and on time

The monthly payments co-op members make towards the mortgage, taxes, and operating expenses of the co-op are called "'''housing charges'''", not rent. Some members pay a housing charge based on their income — usually, about 30% of their gross household income. Others pay a housing charge close to market rates.

All money payable is a debt to the co-op. If a member does not pay, the co-op can put a '''lien''' (a charge) on the member’s shares. The co-op can also end a person’s membership for failure to pay.

===If members have a dispute===
Co-ops govern themselves. The '''rules''' and '''policies''' of most co-ops have procedures to solve disputes between members and between the association and members. Members should follow those procedures to solve disputes.

If that doesn’t work, members can seek help through arbitration or the court system. '''Arbitration''' is like court, but less formal. Arbitration decisions are final unless the co-op’s rules allow the decision to be appealed in court.

If a co-op ends a person’s membership, the person cannot use arbitration to appeal that action — they must go to court, as explained shortly.

A person with a dispute who is no longer a member has six months after leaving the co-op to seek arbitration or go to court.

===Ending a person’s membership===
Housing co-op evictions must follow the ''[http://canlii.ca/t/84k0 Cooperative Association Act]'' and the [http://canlii.ca/t/85mf regulation under it]. A co-op can end a person’s membership in any of the following cases:
*if a person '''does not pay''' rent, occupancy charges, or other money they owe for using the premises
*if the directors believe a person '''violated a material condition''' in the occupancy agreement, meaning something fundamental to the agreement
*for '''conduct detrimental''' to the co-op, meaning seriously harmful behaviour

You should look at a co-op’s rules and occupancy agreement to see if they say what behavior will harm the co-op and cause it to end a membership.

A co-op must first give notice of the problem to the person and give them a chance to correct it. A motion to end a person’s membership for one of these reasons needs approval by 75% of all directors in a meeting called for this purpose. The co-op must give the person notice of the directors’ meeting, and let them appear and speak at the meeting.

A person whose membership is ended has the right to a refund of what they paid for their shares, minus any money they owe to the co-op. When a co-op ends a person’s membership, the person’s occupancy agreement also ends, so they can no longer live in the co-op.

{| class="wikitable"
|align="left"|'''Tip'''
If you are a member of a housing co-op and you have received a letter saying your membership has been terminated, the [http://www.clasbc.net Community Legal Assistance Society] may be able to help.
|}

===If a person disagrees with a decision to end their membership===
The person can appeal to the members at the next membership meeting and continue as a member until the appeal is heard. But first, they must notify the directors they plan to appeal. And they must do this within '''seven days''' of when they are notified of the directors’ decision to end their membership.

If the members confirm the directors’ decision, the person can apply to the BC Supreme Court to rule that the termination of their membership wasn’t justified — because the co-op violated principles of natural justice or its decision was not reasonably supported by the facts or authorized under the ''[http://canlii.ca/t/84k0 Cooperative Association Act]''.

{| class="wikitable"
|align="left"|'''Tip'''
There is a 30-day limit to appeal a housing co-op eviction to the Supreme Court. It is advisable to seek a lawyer’s help to do this, as the documents and process are complex.
|}

===Ending a person’s occupancy agreement===
A co-op can end a person’s occupancy agreement for any breach of the occupancy agreement. The most common reason is non-payment of housing charges. The co-op’s board of directors must first demand in writing that the person correct the problem. If the person doesn’t correct it, the board can pass a resolution by a simple majority (more than 50%) to end the occupancy agreement.

When the occupancy agreement ends, the person’s membership also ends. They must then leave the co-op. But they can appeal, as described earlier.

If an evicted member does not pay what they owe to the co-op, the co-op can sue them. Claims for $5,000 or less go to the [https://civilresolutionbc.ca/ Civil Resolution Tribunal]. Claims above $5,000 and up to $35,000 go to [http://www.smallclaimsbc.ca/ Small Claims Court]. Claims above $35,000 go to [http://www.courts.gov.bc.ca/supreme_court/ BC Supreme Court].

==Get help==

===With more information===
The '''Co-operative Housing Federation of BC''' website features [http://www.chf.bc.ca/learn-more/model-rules-20 model rules] and information for those living in a housing co-op.
:Telephone: 604-879-5111 in Vancouver
:Toll-free: 1-866-879-5111
:Web: [https://www.chf.bc.ca chf.bc.ca]

If you are a member of a housing co-op and you have received a letter saying your membership has been terminated, the '''Community Legal Assistance Society''' may be able to help.
:Telephone: 604-685-3425 in Vancouver
:Toll-free: 1-888-685-6222
:Web: [http://www.clasbc.net clasbc.net]

[updated February 2018]

'''The above was last reviewed for legal accuracy by [https://citadellawyers.ca/silvano-s-todesco/ Silvano Todesco], Citadel Law Corporation'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Owning a Condominium

2019-03-05T05:55:01Z

Dial-A-Law: /* Strata lot owners own common property together */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
Owning a condominium isn’t the same as owning a house. In many ways, it’s more complex. Learn the legal framework involved, and common questions for those who own a condo.

==Understand the legal framework==

===In BC, a condominium is called a “strata”===
The term '''condominium''' means a building or complex of buildings containing a number of individually owned units or houses. In British Columbia, the term is used informally. But the legal term for a condominium in BC is '''strata'''. In strata housing, the owners own their individual '''strata lots''' and together own the common property as a '''strata corporation'''.

In a typical high-rise strata building, each unit is a separate strata lot. But strata housing is more than just high-rise condos. Depending on the development, a strata lot may be an apartment, a half-duplex, a townhouse, a retail store — even a single-family home in what’s called a “strata subdivision”.

It’s not the size or shape of a development that makes it a strata. Instead, it’s the legal structure used. If a development is legally created by a '''strata plan''', it’s a strata — whether it’s a 300-unit high-rise apartment or a two-unit strata duplex.

===Property that is not part of a strata lot is “common property”===
Any part of the land and buildings shown on a strata plan that is not part of a strata lot is '''common property'''. Typical common property includes hallways, elevators, gardens, recreational amenities, garbage facilities, the roof, and exterior walls. In addition, some pipes, wires, cables and similar things that carry water and other services within the development may also be common property — even when they’re located in a strata lot.

====Strata lot owners own common property together====
Strata lot owners automatically own a proportionate interest in the common property, together with the other strata lot owners in the development. Under the ''[http://canlii.ca/t/84jr Strata Property Act]'', strata lot owners own the common property in a type of co-ownership called '''tenancy-in-common'''. Each owner’s proportionate interest in the common property is set out in a '''schedule of unit entitlement''' that is filed with the strata plan in the Land Title Office.

The strata corporation may make '''bylaws''' and '''rules''' to govern the use, safety and condition of the common property. Every owner can use the common property. They have to follow the bylaws and rules setting out how they can use it.

====Limited common property====
Sometimes, common property may be set aside for the use of only certain people. A strata can designate an area of common property for the exclusive use of one or more strata lots. This designation is called '''limited common property'''. For example, in a high-rise condo building, the strata plan may show that a strata lot’s balcony is limited common property for that strata lot. This means the balcony is common property, owned by all the strata lot owners as tenants-in-common. But the balcony is only for the use of that strata lot owner.

An owner must allow the strata corporation reasonable access to common property (including limited common property) if it’s accessible only through the owner’s strata lot (for instance, a common property balcony). Typically, the strata bylaws set the procedure the strata corporation must follow to access common property through an owner’s strata lot and make repairs.

===A strata corporation governs the strata===
When a strata plan is registered in the Land Title Office, it establishes a '''strata corporation'''. The owners of the strata lots in the strata plan are members of the strata corporation. The board of directors is called the '''strata council'''.

The strata corporation enforces the bylaws of the strata. The strata corporation manages and maintains the common property and common assets. When a strata corporation itself owns an item (for example, a lawn mower), that item is a '''common asset'''.

The strata corporation may buy services or goods, and sue or be sued. In fact, only a strata corporation can sue third parties for defects in or damage to common property.

Under [https://www.canlii.org/en/bc/laws/stat/sbc-1998-c-43/latest/sbc-1998-c-43.html#sec40_smooth BC law], there are detailed requirements for meetings of the strata corporation. The strata corporation must hold at least one general meeting once a year, called the '''annual general meeting''' or AGM. At the AGM, members must approve an annual budget and elect a strata council, among other things. The strata corporation must also keep certain records, such as financial records and correspondence, and make them available to owners and tenants on request.

===A strata council manages the strata===
A '''strata council''' is an elected group of strata lot owners. It is the board of directors of the strata corporation. The strata council manages the corporation on a daily basis. In larger developments, the strata council may hire a professional management company to help manage the corporation.

Depending on a strata corporation’s bylaws, the strata council usually has three to seven members. In some stratas, the tenants or spouses of strata lot owners can serve as council members.

====Strata council meetings====
A strata council should meet at least once every year. The strata corporation’s bylaws set out how council meetings are called. At council meetings, members decide how to govern the strata corporation, including:
*preparing the budget for the strata corporation and paying strata corporation bills
*arranging insurance for the strata corporation
*enforcing the bylaws and rules of the strata corporation, including fining owners for breaches
*handling owner complaints about bylaw breaches or items that require repair or maintenance
*approving strata lot and common property alterations
*managing the common property

====Strata council minutes====
At each strata council meeting, '''minutes''' are prepared to record the decisions made at the meeting. There is no required form for minutes, but they should record all council decisions and include details such as who was at the meeting and the business attended to at the meeting. For example, if the council received a bylaw complaint, the minutes should record the council’s decision on how to handle the complaint, such as by sending a notice to the offending owner. Minutes do not need to include the discussions that lead to the council decisions.

If sensitive topics are discussed at a council meeting, the council should hold a private or closed meeting (called '''in camera''') for that topic. All observers must leave the meeting for that session. And only the result of the discussion is recorded in the minutes.

===The strata corporation must keep certain records===
The ''[https://www.canlii.org/en/bc/laws/stat/sbc-1998-c-43/latest/sbc-1998-c-43.html#sec35_smooth Strata Property Act]'' lists the records a strata corporation must keep. A [https://www.canlii.org/en/bc/laws/regu/bc-reg-43-2000/latest/bc-reg-43-2000.html#sec4.1_smooth regulation] sets out how long the records must be kept.

Records that must be kept and '''updated''' include:
*a list of council members
*a list of owners, with their strata lot addresses, parking stall and storage locker numbers, and unit entitlements
*the names of any tenants
*books of account showing money received and spent, and why
*the bylaws and rules of the strata corporation

The strata corporation must also keep certain documents for at least '''six years'''. For example:
*minutes of all annual and special general meetings, including the results of any votes
*the annual budget and financial statement
*bank statements, cancelled cheques and certificates of deposit
*information certificates issued

Some records must be kept '''permanently''', such as:
*resolutions that deal with changes to common property, including the designation of limited common property
*any decision of an arbitrator or judge in a proceeding in which the strata corporation was a party
*any legal opinions obtained by the strata corporation
*any depreciation reports obtained by the strata corporation

Any correspondence sent or received by the strata corporation or its council must be kept for at least '''two years'''.

====Where strata records are kept====
The law does not say where strata records must be kept. If the strata has a strata manager, it typically keeps the records at its office or place of business.

If the strata does not have a strata manager, the strata council must arrange to keep the required records where they can be inspected and copied by those with a right to inspect and copy the records.

====Who has access to strata records====
All owners have the right to inspect and receive copies of the strata records. If an owner has assigned their ownership rights to their tenant, the tenant also has the right to inspect and copy the strata records. The owner or the qualified tenant can also authorize, in writing, someone to inspect and copy the records for them.

===The strata corporation can charge strata fees===
Each year, a strata corporation creates an annual budget. To pay for expenses, the corporation charges proportionate '''strata fees''' to each strata lot owner based on the schedule of unit entitlement.

To set aside savings for repairs or long-term improvements in the development (for example, a new roof) the strata fees typically include an amount for the '''contingency reserve fund'''. This is a strata corporation’s mandatory savings account to pay for unusual or extraordinary future expenses. Expenditures out of the reserve fund must be authorized by resolution except in emergencies.

A strata corporation may also raise funds at any time by passing a '''special levy''' if at least three-quarters of the owners approve it at a general meeting. If a special levy passes, each owner must pay a proportionate share of it.

If an owner does not pay monthly strata fees or special levies on time, the strata corporation may register a '''lien''' in the Land Title Office against their strata lot. Ultimately, the strata corporation may ask the court for an order to sell the owner’s strata lot to pay the amount owing under the lien.

===The law and rules that apply to stratas===
In BC, the ''[http://canlii.ca/t/84jr Strata Property Act]'' is the main law governing stratas. In addition, each strata corporation must have '''bylaws'''. They set out strata lot owners’ rights and responsibilities, and control what the place will be like to live in. For example, bylaws may restrict the rental of strata lots. Bylaws may also restrict pets and certain age groups, such as children. In most stratas, the bylaws require strata lot owners to get permission before making significant changes to their strata lot, such as moving walls or making plumbing or electrical changes.

A strata corporation may also have '''rules'''. Rules apply only to the use and enjoyment of common property and common assets. For example, a rule may limit the size of vehicles that may park in a common-property parkade, or restrict the hours when residents can use a common-property fitness centre.

A strata corporation may change its bylaws by a 75% vote of the owners at a general meeting.

A strata council may pass rules at any time, but any new rules must be ratified by a majority of the owners before or at the next AGM, otherwise they cease to be effective.

==Common questions==

===Can I rent out my condo unit?===
Some stratas have a rental restriction bylaw. A strata corporation may pass a bylaw that prohibits all residential rentals or limits the number or percentage of residential rentals.

Sometimes a document called a '''rental disclosure statement''' may let an owner rent a residential strata lot despite a rental restriction bylaw. If you plan to rely on a rental disclosure statement, have a lawyer review the document. In some cases, it exempts only the first owner of the strata lot from a rental restriction bylaw.

In some cases, an owner can apply to their strata council for an '''exemption''' from a rental restriction bylaw, if the bylaw causes them hardship. For example, if an owner gets transferred to another city for work and cannot afford to maintain two residences and doesn’t want to sell their strata lot, they can apply for an exemption. If the strata council gives them the exemption, the owner can rent their strata lot out without breaching the bylaw.

If you do rent out your unit, choose your tenant carefully. The strata corporation can hold you responsible if your tenant breaks a bylaw or rule.

===Can the strata corporation require strata unit owners to pay for certain repairs?===
Yes. Strata corporations may impose a special fee (called a '''levy''') to raise money for certain critical repairs to common property. A resolution for a special levy must be developed and submitted for approval at a general meeting by a 3/4 vote.

If the special levy is for repairs that are necessary to ensure safety or prevent significant damage to property, and the resolution receives at least majority support, the strata corporation can apply to court to order the special levy approved.

===Does a strata corporation need insurance?===
Yes. Under [https://www.canlii.org/en/bc/laws/stat/sbc-1998-c-43/latest/sbc-1998-c-43.html#sec149_smooth the law], the strata corporation must insure the common property, common assets, buildings shown on the strata plan, and certain fixtures within the strata lot. The strata corporation must also carry liability insurance for property damage and bodily injury.

Strata lot owners need their own insurance for their personal property, for improvements to their strata lot, and liability to others for injury. Owners should also consider taking out extra insurance to cover the strata corporation’s deductibles, which can be large. It is not uncommon that a strata’s deductible for water damage is $25,000 or higher.

===I’m in a dispute with my strata. What options do I have to resolve it?===
Strata disputes can be resolved within the strata corporation or by using systems set up to resolve strata disputes. The BC government strata housing website explains a number of options for [https://www2.gov.bc.ca/gov/content/housing-tenancy/strata-housing/resolving-disputes/resolving-disputes-within-the-strata#informal informal meetings] with the property manager or strata council.

Alternatively, strata owners, residents, and strata council members may use the '''Civil Resolution Tribunal''' (CRT) to resolve many strata disputes. This is an online tribunal that encourages a collaborative approach to resolving disputes. See the CRT website at [https://civilresolutionbc.ca civilresolutionbc.ca].

==Get help==

===With more Information===
The '''BC government'''’s strata housing website has extensive information for strata owners and strata council members.
:Web: [http://www.gov.bc.ca/strata gov.bc.ca/strata]

The '''Condominium Home Owners Association of BC''' promotes the understanding of strata property living and the interests of strata property owners.
:Web: [http://www.choa.bc.ca/ choa.bc.ca]

The '''Office of the Information & Privacy Commissioner for British Columbia'''’s website includes privacy guidelines for stratas.
:Web: [https://www.oipc.bc.ca/guidance-documents/1455 oipc.bc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://www.lawsonlundell.com/team-Lisa-Frey Lisa Frey], Lawson Lundell LLP and [http://sabeyrule.ca/taeya-fitzpatrick/ Taeya Fitzpatrick], Sabey Rule.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Owning a Condominium

2019-03-05T05:53:44Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
Owning a condominium isn’t the same as owning a house. In many ways, it’s more complex. Learn the legal framework involved, and common questions for those who own a condo.

==Understand the legal framework==

===In BC, a condominium is called a “strata”===
The term '''condominium''' means a building or complex of buildings containing a number of individually owned units or houses. In British Columbia, the term is used informally. But the legal term for a condominium in BC is '''strata'''. In strata housing, the owners own their individual '''strata lots''' and together own the common property as a '''strata corporation'''.

In a typical high-rise strata building, each unit is a separate strata lot. But strata housing is more than just high-rise condos. Depending on the development, a strata lot may be an apartment, a half-duplex, a townhouse, a retail store — even a single-family home in what’s called a “strata subdivision”.

It’s not the size or shape of a development that makes it a strata. Instead, it’s the legal structure used. If a development is legally created by a '''strata plan''', it’s a strata — whether it’s a 300-unit high-rise apartment or a two-unit strata duplex.

===Property that is not part of a strata lot is “common property”===
Any part of the land and buildings shown on a strata plan that is not part of a strata lot is '''common property'''. Typical common property includes hallways, elevators, gardens, recreational amenities, garbage facilities, the roof, and exterior walls. In addition, some pipes, wires, cables and similar things that carry water and other services within the development may also be common property — even when they’re located in a strata lot.

====Strata lot owners own common property together====
Strata lot owners automatically own a proportionate interest in the common property, together with the other strata lot owners in the development. Under the '[http://canlii.ca/t/84jr Strata Property Act]'', strata lot owners own the common property in a type of co-ownership called '''tenancy-in-common'''. Each owner’s proportionate interest in the common property is set out in a '''schedule of unit entitlement''' that is filed with the strata plan in the Land Title Office.

The strata corporation may make '''bylaws''' and '''rules''' to govern the use, safety and condition of the common property. Every owner can use the common property. They have to follow the bylaws and rules setting out how they can use it.

====Limited common property====
Sometimes, common property may be set aside for the use of only certain people. A strata can designate an area of common property for the exclusive use of one or more strata lots. This designation is called '''limited common property'''. For example, in a high-rise condo building, the strata plan may show that a strata lot’s balcony is limited common property for that strata lot. This means the balcony is common property, owned by all the strata lot owners as tenants-in-common. But the balcony is only for the use of that strata lot owner.

An owner must allow the strata corporation reasonable access to common property (including limited common property) if it’s accessible only through the owner’s strata lot (for instance, a common property balcony). Typically, the strata bylaws set the procedure the strata corporation must follow to access common property through an owner’s strata lot and make repairs.

===A strata corporation governs the strata===
When a strata plan is registered in the Land Title Office, it establishes a '''strata corporation'''. The owners of the strata lots in the strata plan are members of the strata corporation. The board of directors is called the '''strata council'''.

The strata corporation enforces the bylaws of the strata. The strata corporation manages and maintains the common property and common assets. When a strata corporation itself owns an item (for example, a lawn mower), that item is a '''common asset'''.

The strata corporation may buy services or goods, and sue or be sued. In fact, only a strata corporation can sue third parties for defects in or damage to common property.

Under [https://www.canlii.org/en/bc/laws/stat/sbc-1998-c-43/latest/sbc-1998-c-43.html#sec40_smooth BC law], there are detailed requirements for meetings of the strata corporation. The strata corporation must hold at least one general meeting once a year, called the '''annual general meeting''' or AGM. At the AGM, members must approve an annual budget and elect a strata council, among other things. The strata corporation must also keep certain records, such as financial records and correspondence, and make them available to owners and tenants on request.

===A strata council manages the strata===
A '''strata council''' is an elected group of strata lot owners. It is the board of directors of the strata corporation. The strata council manages the corporation on a daily basis. In larger developments, the strata council may hire a professional management company to help manage the corporation.

Depending on a strata corporation’s bylaws, the strata council usually has three to seven members. In some stratas, the tenants or spouses of strata lot owners can serve as council members.

====Strata council meetings====
A strata council should meet at least once every year. The strata corporation’s bylaws set out how council meetings are called. At council meetings, members decide how to govern the strata corporation, including:
*preparing the budget for the strata corporation and paying strata corporation bills
*arranging insurance for the strata corporation
*enforcing the bylaws and rules of the strata corporation, including fining owners for breaches
*handling owner complaints about bylaw breaches or items that require repair or maintenance
*approving strata lot and common property alterations
*managing the common property

====Strata council minutes====
At each strata council meeting, '''minutes''' are prepared to record the decisions made at the meeting. There is no required form for minutes, but they should record all council decisions and include details such as who was at the meeting and the business attended to at the meeting. For example, if the council received a bylaw complaint, the minutes should record the council’s decision on how to handle the complaint, such as by sending a notice to the offending owner. Minutes do not need to include the discussions that lead to the council decisions.

If sensitive topics are discussed at a council meeting, the council should hold a private or closed meeting (called '''in camera''') for that topic. All observers must leave the meeting for that session. And only the result of the discussion is recorded in the minutes.

===The strata corporation must keep certain records===
The ''[https://www.canlii.org/en/bc/laws/stat/sbc-1998-c-43/latest/sbc-1998-c-43.html#sec35_smooth Strata Property Act]'' lists the records a strata corporation must keep. A [https://www.canlii.org/en/bc/laws/regu/bc-reg-43-2000/latest/bc-reg-43-2000.html#sec4.1_smooth regulation] sets out how long the records must be kept.

Records that must be kept and '''updated''' include:
*a list of council members
*a list of owners, with their strata lot addresses, parking stall and storage locker numbers, and unit entitlements
*the names of any tenants
*books of account showing money received and spent, and why
*the bylaws and rules of the strata corporation

The strata corporation must also keep certain documents for at least '''six years'''. For example:
*minutes of all annual and special general meetings, including the results of any votes
*the annual budget and financial statement
*bank statements, cancelled cheques and certificates of deposit
*information certificates issued

Some records must be kept '''permanently''', such as:
*resolutions that deal with changes to common property, including the designation of limited common property
*any decision of an arbitrator or judge in a proceeding in which the strata corporation was a party
*any legal opinions obtained by the strata corporation
*any depreciation reports obtained by the strata corporation

Any correspondence sent or received by the strata corporation or its council must be kept for at least '''two years'''.

====Where strata records are kept====
The law does not say where strata records must be kept. If the strata has a strata manager, it typically keeps the records at its office or place of business.

If the strata does not have a strata manager, the strata council must arrange to keep the required records where they can be inspected and copied by those with a right to inspect and copy the records.

====Who has access to strata records====
All owners have the right to inspect and receive copies of the strata records. If an owner has assigned their ownership rights to their tenant, the tenant also has the right to inspect and copy the strata records. The owner or the qualified tenant can also authorize, in writing, someone to inspect and copy the records for them.

===The strata corporation can charge strata fees===
Each year, a strata corporation creates an annual budget. To pay for expenses, the corporation charges proportionate '''strata fees''' to each strata lot owner based on the schedule of unit entitlement.

To set aside savings for repairs or long-term improvements in the development (for example, a new roof) the strata fees typically include an amount for the '''contingency reserve fund'''. This is a strata corporation’s mandatory savings account to pay for unusual or extraordinary future expenses. Expenditures out of the reserve fund must be authorized by resolution except in emergencies.

A strata corporation may also raise funds at any time by passing a '''special levy''' if at least three-quarters of the owners approve it at a general meeting. If a special levy passes, each owner must pay a proportionate share of it.

If an owner does not pay monthly strata fees or special levies on time, the strata corporation may register a '''lien''' in the Land Title Office against their strata lot. Ultimately, the strata corporation may ask the court for an order to sell the owner’s strata lot to pay the amount owing under the lien.

===The law and rules that apply to stratas===
In BC, the ''[http://canlii.ca/t/84jr Strata Property Act]'' is the main law governing stratas. In addition, each strata corporation must have '''bylaws'''. They set out strata lot owners’ rights and responsibilities, and control what the place will be like to live in. For example, bylaws may restrict the rental of strata lots. Bylaws may also restrict pets and certain age groups, such as children. In most stratas, the bylaws require strata lot owners to get permission before making significant changes to their strata lot, such as moving walls or making plumbing or electrical changes.

A strata corporation may also have '''rules'''. Rules apply only to the use and enjoyment of common property and common assets. For example, a rule may limit the size of vehicles that may park in a common-property parkade, or restrict the hours when residents can use a common-property fitness centre.

A strata corporation may change its bylaws by a 75% vote of the owners at a general meeting.

A strata council may pass rules at any time, but any new rules must be ratified by a majority of the owners before or at the next AGM, otherwise they cease to be effective.

==Common questions==

===Can I rent out my condo unit?===
Some stratas have a rental restriction bylaw. A strata corporation may pass a bylaw that prohibits all residential rentals or limits the number or percentage of residential rentals.

Sometimes a document called a '''rental disclosure statement''' may let an owner rent a residential strata lot despite a rental restriction bylaw. If you plan to rely on a rental disclosure statement, have a lawyer review the document. In some cases, it exempts only the first owner of the strata lot from a rental restriction bylaw.

In some cases, an owner can apply to their strata council for an '''exemption''' from a rental restriction bylaw, if the bylaw causes them hardship. For example, if an owner gets transferred to another city for work and cannot afford to maintain two residences and doesn’t want to sell their strata lot, they can apply for an exemption. If the strata council gives them the exemption, the owner can rent their strata lot out without breaching the bylaw.

If you do rent out your unit, choose your tenant carefully. The strata corporation can hold you responsible if your tenant breaks a bylaw or rule.

===Can the strata corporation require strata unit owners to pay for certain repairs?===
Yes. Strata corporations may impose a special fee (called a '''levy''') to raise money for certain critical repairs to common property. A resolution for a special levy must be developed and submitted for approval at a general meeting by a 3/4 vote.

If the special levy is for repairs that are necessary to ensure safety or prevent significant damage to property, and the resolution receives at least majority support, the strata corporation can apply to court to order the special levy approved.

===Does a strata corporation need insurance?===
Yes. Under [https://www.canlii.org/en/bc/laws/stat/sbc-1998-c-43/latest/sbc-1998-c-43.html#sec149_smooth the law], the strata corporation must insure the common property, common assets, buildings shown on the strata plan, and certain fixtures within the strata lot. The strata corporation must also carry liability insurance for property damage and bodily injury.

Strata lot owners need their own insurance for their personal property, for improvements to their strata lot, and liability to others for injury. Owners should also consider taking out extra insurance to cover the strata corporation’s deductibles, which can be large. It is not uncommon that a strata’s deductible for water damage is $25,000 or higher.

===I’m in a dispute with my strata. What options do I have to resolve it?===
Strata disputes can be resolved within the strata corporation or by using systems set up to resolve strata disputes. The BC government strata housing website explains a number of options for [https://www2.gov.bc.ca/gov/content/housing-tenancy/strata-housing/resolving-disputes/resolving-disputes-within-the-strata#informal informal meetings] with the property manager or strata council.

Alternatively, strata owners, residents, and strata council members may use the '''Civil Resolution Tribunal''' (CRT) to resolve many strata disputes. This is an online tribunal that encourages a collaborative approach to resolving disputes. See the CRT website at [https://civilresolutionbc.ca civilresolutionbc.ca].

==Get help==

===With more Information===
The '''BC government'''’s strata housing website has extensive information for strata owners and strata council members.
:Web: [http://www.gov.bc.ca/strata gov.bc.ca/strata]

The '''Condominium Home Owners Association of BC''' promotes the understanding of strata property living and the interests of strata property owners.
:Web: [http://www.choa.bc.ca/ choa.bc.ca]

The '''Office of the Information & Privacy Commissioner for British Columbia'''’s website includes privacy guidelines for stratas.
:Web: [https://www.oipc.bc.ca/guidance-documents/1455 oipc.bc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://www.lawsonlundell.com/team-Lisa-Frey Lisa Frey], Lawson Lundell LLP and [http://sabeyrule.ca/taeya-fitzpatrick/ Taeya Fitzpatrick], Sabey Rule.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Buying a Condominium

2019-03-05T05:38:55Z

Dial-A-Law: /* With more information */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = housing}}
Buying a condominium is a lot like buying a house. But there are also important differences. Learn the key things to consider before making an offer to buy a condo.

==Understand the legal framework==

===In BC, a condominium is called a “strata”===
The term '''condominium''' means a building or complex of buildings containing a number of individually owned units or houses. In British Columbia, the term is used informally. The legal term for a condominium in BC is '''strata'''. In strata housing, the owners own their individual '''strata lots''' and together own the common property as a '''strata corporation'''.

====More than high-rise condos====
Strata housing is more than just high-rise condos. Strata housing can also include duplexes, townhouses, fractional vacation properties — even single-family homes in bare land strata corporations (called “strata subdivisions”).

It’s not the size or shape of a development that makes it a strata. Instead, it’s the legal structure used. If a development is legally created by a '''strata plan''', it’s a strata — whether it’s a 300-unit high-rise apartment or a two-unit strata duplex.

====The law that applies====
In BC, the ''[http://canlii.ca/t/84jr Strata Property Act]'' is the main law governing stratas. Under this law, a '''strata corporation''' is created when a '''strata plan''' is registered in the Land Title Office. A strata plan is a series of drawings and notations, and shows the boundaries of each strata lot and the common property.

'''Owners''' of the individual strata lots are members of the strata corporation. Together, they own the common property, pay for the common expenses of the strata corporation, and vote on matters of common interest.

===Not all condo complexes are stratas===
Some condominium complexes in BC are not set up as strata corporations. Some apartments, townhouses and duplexes operate under various other legal structures, such as housing co-operatives or privately-owned rental buildings. This also occurs on First Nations reserve lands, where provincial property laws don’t apply the way they do elsewhere.

{| class="wikitable"
|align="left"|'''Tip'''
If you’re looking to buy a unit in a housing development, getting legal advice will help you understand what legal structure is in play, and what that means for you if you make an offer.
|}

===A strata development can be freehold or leasehold===
Strata developments can be either freehold or leasehold. In a '''freehold''' development, people hold “fee simple title” to their strata lots. That means they own their strata lots.

In a '''leasehold''' development, the landlord owns the property, and people hold a “leasehold interest” in their strata lots, for a specific term. These long-term tenants are registered on title, and are treated as owners under strata property law. They must pay the monthly strata fees and any other contributions, and can sell their leasehold interest in the strata lot to the next leasehold buyer.

Most strata developments are freehold, where people own their strata lots.

{| class="wikitable"
|align="left"|'''Tip'''
Be cautious with leasehold developments. Make sure you understand what you are buying and that the leasehold is being valued correctly. The fair market value of a leasehold strata lot is usually much less than the value of a comparable freehold strata lot. Be sure you understand the remaining term of the head-lease, the term of your own leasehold, and what happens when the terms expire. If you are thinking of buying a leasehold strata lot, you should make any offer subject to reviewing the long-term lease and all related documents with a lawyer.
|}

==Key things to consider==

===Considerations in any home purchase===
Our information on [[Buying a House (Script 406)|buying a home (no. 406)]] covers key factors to consider when buying any type of home, whether it’s a strata, a house, or some other type of legal structure. It covers topics such as what to include in an offer to purchase, “subject to” clauses, counteroffers, financing, fraud risks, the taxes payable, the statement of adjustments, and more.

Here, we explain considerations specific to buying a unit in a strata complex.

===The information certificate and related documents===
A prospective buyer of a strata lot should review documents that will help them make an informed decision about whether to buy the strata.

Under the [https://www.canlii.org/en/bc/laws/stat/sbc-1998-c-43/latest/sbc-1998-c-43.html#sec59_smooth law in BC], a buyer can request the strata corporation provide an '''information certificate''' (in Form B). This certificate sets out facts about the current status of the strata corporation and the strata lot being sold. The form should include the financial obligations for that strata lot, any parking and storage facilities assigned to the strata lot, the monthly strata fee and any special levy payments outstanding, and other useful facts. The form should attach documents such as the current budget, rules, any rental disclosures statement, and any depreciation report for the strata corporation.

The information certificate also shows if the strata corporation has adopted any new bylaws which will take effect but haven’t yet been filed at the Land Title Office, and whether the strata corporation is involved in any lawsuits or arbitration.

{| class="wikitable"
|align="left"|'''Tip'''
Always review a current '''information certificate''' before making an offer to buy a strata lot. Or you should make your offer subject to reviewing a current information certificate.
|}

===Legal documents for the strata===
It is also important to review the legal documents for the strata. The '''title''' to the strata lot lists any covenants, easements and other encumbrances on title. This can reveal limitations on the use of the strata lot or charges that may affect its value.

The '''strata plan''' shows the boundaries of the strata lot you are thinking of buying. It shows the “unit entitlement” of the lot, which determines the strata lot’s proportionate share of contributions, and the schedule of voting rights for the strata corporation. Compare your obligations to those of other strata lots to ensure they are proportionate.

{| class="wikitable"
|align="left"|'''Tip'''
Check the location, dimensions and area of your strata lot. Balconies, parking stalls, storage units and other non-residential areas you may expect to have access to are sometimes configured in odd ways legally. If the purchase of a strata lot includes the use of parking stalls or storage units, confirm the nature of your right to use these areas.
|}

====Bylaws, rules and minutes====
Strata lot owners must comply with the bylaws and rules of the strata corporation. Read them carefully before you buy.

The '''bylaws''' of the strata corporation set out owners’ specific rights and obligations and give you a good sense of how rigidly the strata corporation controls owners. Look carefully for any pet, age, or rental restrictions and whether they will be a problem for you.

A strata corporation’s '''rules''' set out how common property and common assets can be used. Look for whether they restrict activities that might be important to you. For example, a rule may limit what size of vehicle can park in a common-property parkade, or restrict the hours when a common-property fitness centre is open.

Past '''minutes of meetings''' of the strata council, and general meetings of the owners, can give you a sense of how active the strata council is, and recent issues the strata corporation has been dealing with, such as water leaks or expensive repairs coming up. Ask for at least two years of minutes (ideally, more than that), and review them carefully.

====For new strata developments====
For new developments, the owner-developer must give prospective first buyers a copy of an up-to-date '''disclosure statement'''. This document discloses the intentions of the owner-developer, and has marketing representations, as well as disclosure of legal encumbrances and other important information.

===Financial obligations===
Make sure you can afford to be an owner in the strata you're considering. Review the financial statements and budget of the strata corporation to assess its financial situation, where money is being spent, and the balance of the '''contingency reserve fund''' (a fund to pay for infrequent or unexpected common expenses). Review what special levies and other funds have been assessed and spent on major expenses such as repairs.

====Monthly strata fees====
All strata lot owners must pay a proportional part of the common expenses of the strata corporation by paying '''strata fees''' for their strata lot. The strata fees are typically based on the strata corporation’s annual budget, divided by the unit entitlement which sets out the share for each strata lot. Check the current budget and the information certificate for the current strata fees. Compare the strata fees to other similar developments.

If the strata fees seem high, check if there are expensive recreational facilities or other features, or budgeted items which you will have to help pay for — whether they benefit you or not.

If the strata fees seem low, consider whether the budget is adequate, and be realistic about likely strata fee increases and large special levies that may be needed for expensive repairs.

====Other assessments====
Strata lot owners may need to pay other expenses, including:
*'''Special levies'''. A strata lot owner also needs to pay their share of any special levy for extraordinary expenditures assessed against all strata lot owners.
*'''User fees'''. There may be user fees to use parking or other facilities.
*'''Insurance deductibles'''. Many strata corporations will charge an owner for insurance deductibles or other charges arising from sources of damage within a strata lot.

===The physical condition of the project===
The general rule is that every owner in a strata corporation must contribute to common expenses, such as repairs, unless an exception to the rule applies. If the development is in poor repair, you will have to pay your share of the cost to fix it, even if the repairs do not involve your strata lot or the part of the project where your unit is located. You may have to pay for special levies that have been previously approved, with future installments. Future installments should be disclosed in the Form B information certificate.

Review the minutes of strata meetings to see if any major repairs have recently been made or are planned. Ask for copies of minutes for at least the past two years.

Ask to see the strata corporation’s depreciation report, and review it for any expensive replacements, repairs or upgrades which have been recommended.

===Whether the community is right for you===
Review the minutes of strata meetings carefully for issues which might concern you. If you are on a fixed income, or borrowing heavily to buy a strata lot, watch for discussions that might indicate expenses, such as ongoing or threatened litigation, water leaks, building envelope problems, or structural repair concerns.

A careful review of the minutes can tell a lot about the strata. You might see noise complaints relating to an adjacent strata lot, or very strict enforcement of the bylaws, recurring disputes, the existence of factions or similar trends which may concern you. Is there a licensed strata manager involved in meetings? Do they appear to have difficulty electing a full strata council? Does the council meet monthly or infrequently?

===Hiring a lawyer===
Before making an offer to buy a condominium, consider having a lawyer review the critical documents, including the contract of purchase and sale, legal title to the strata lot, the strata plan, the information certificate, strata meeting minutes, and the bylaws and rules.

If you can’t see a lawyer before you make an offer, consider adding a sentence to your offer saying it is subject to a lawyer’s review of the strata documents to confirm that no features reduce the use or value of the strata lot. Then take the offer to your lawyer before you remove any of the “subject to” clauses or the deadline for doing so expires. Buying a strata lot involves risks and pitfalls that a lawyer can help you avoid.

{| class="wikitable"
|align="left"|'''Tip'''
Be very careful about rent-to-own, time share, and other non-standard ways of buying a strata lot — do not sign any agreement without legal advice.
|}

==Get help==

===With more information===
The '''BC government'''’s strata housing website has extensive information for strata owners and strata council members.
:Web: [http://www.gov.bc.ca/strata gov.bc.ca/strata]

The '''Condominium Home Owners Association of BC''' promotes the understanding of strata property living and the interests of strata property owners.
:Web: [http://www.choa.bc.ca/ choa.bc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://www.lawsonlundell.com/team-Lisa-Frey Lisa Frey], Lawson Lundell LLP, and [http://sabeyrule.ca/taeya-fitzpatrick/ Taeya Fitzpatrick], Sabey Rule.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=housing}}

Buying a Condominium

2019-03-05T05:35:22Z

Dial-A-Law:

Impaired Driving

2019-03-05T05:15:53Z

Dial-A-Law: /* Criminal record */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = autos}}
Impaired driving is a serious offence with complex legal and technical issues, as well as significant penalties if you’re convicted. Learn what to expect if you’re charged with impaired driving.

==Understand your legal rights==

===BC and Canada both have impaired driving laws===
Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only [http://canlii.ca/t/847n the BC law] applies. Sometimes, federal law (the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]'') applies instead of — or in addition to — BC law.

It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.

This information focuses on drinking and driving.

{| class="wikitable"
|align="left"|'''Tip'''
In BC, if your blood-alcohol level is over .05, there are legal consequences. (This level means you have 50 milligrams of alcohol in 100 millilitres of blood.) If you have been drinking, don't drive — take a taxi or bus or call a friend for a ride.
|}

===If you are stopped by the police===
If the police lawfully pull you over, they can require you to take the following tests. They can require these tests even if you aren’t driving but have “'''care or control'''” of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

====Police can require you to blow into a roadside screening device====
If the police lawfully stop you, they may demand you give a breath sample by blowing into a hand-held '''approved screening device''' (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.

The screening device tests for alcohol in your breath. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If the screening device shows a warn result, the police will probably give you an '''immediate roadside prohibition'''. (We explain these below, under “Common questions”.)

If the screening device shows a fail, the police may give you an immediate roadside prohibition or they may demand you take a '''breathalyzer test''' as part of a criminal investigation.

You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge. It is highly advisable to make your best attempt to blow.

{| class="wikitable"
|align="left"|'''Tip'''
Under the law, a '''warn''' result means a blood-alcohol level over .05. A '''fail''' result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.
|}

====Police can require you to take a breathalyzer test====
Under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.28_smooth Criminal Code]'', the police may demand you take a '''breathalyzer test''' if they have reasonable and probable grounds to believe you are committing the offence of impaired driving or have a blood alcohol level at or over .08 within two hours after driving. The police may use a fail reading from a roadside screening test to form their grounds to demand a breathalyzer test.

===If the police demand you take a breathalyzer test===
A '''breathalyzer''' is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are “at or over .08”. This amount is the legal limit under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]''.

If the police demand you take a breathalyzer test, you must go with the police to where the breathalyzer instrument is located (usually, the local police station). As well, you must give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.

====Your rights when detained====
When police make this demand, you are legally held, or '''detained'''. The police must tell you of your '''right to a lawyer''' and your '''other rights under the ''Charter of Rights and Freedoms''''' before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.

If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.

If you are unconscious, you can’t agree to give a sample. The police must get a '''warrant''' to take samples, which they can get by phoning a judicial justice or judge.

====You have the right to remain silent====
You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

===If you refuse to blow (give a breath or blood sample)===
If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a '''reasonable excuse''' not to. If you refuse to do them, you are committing an offence.

Generally, it is best to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. Making genuine attempts to blow that do not work is not an offence.

Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse a breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or '''exercise''', those rights and speak to a lawyer.

The legal issues are complex and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.

===If you are charged with a criminal offence===
Police can charge you with any of three impaired driving-related offences under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Cod]'':
*'''impaired driving''' (driving while your ability to operate a vehicle is impaired by alcohol or a drug)
*having a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after driving (“'''at or over .08'''”)
*failing or refusing to provide breath or blood samples on demand (“'''refusing to blow'''”)

These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. The charges can apply even if you weren’t driving and didn’t move the vehicle — as long as you had “'''care or control'''” of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

If your breathalyzer results were at or over .08, you will typically be charged with being at or over .08 within two hours of driving. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.

====Driving prohibition====
If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a '''24-hour roadside prohibition'''. This takes effect immediately. They also typically issue a '''90-day administrative driving prohibition'''. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)

====Going to court====
If you are charged with any of the three ''Criminal Code'' offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex technical and legal issues, it is highly advisable to get help from a lawyer. We suggest options shortly for finding a lawyer.

===If you fight the criminal charges in court===
In responding to impaired driving-related charges under the ''Criminal Code'', you must decide how to '''plead'''. [[Pleading Guilty to a Criminal Charge (Script 212)|Pleading guilty]] means you accept responsibility for the offence. Pleading “not guilty” means the court will set a '''trial'''.

At the trial, the prosecutor must prove beyond a reasonable doubt that you committed the offence.

For '''impaired driving''', the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.

For '''at or over .08''', the prosecutor must prove your blood-alcohol concentration was at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after you drove. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.

For '''failing to blow''', the prosecutor must prove you failed to give samples — without a reasonable excuse.

The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.

You have the right to '''testify''' (tell the court your story). You don’t have to. But you may want to if you can counter what the witnesses said and raise a reasonable doubt as to whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you ideally make with the help of a lawyer.

===If you are convicted of criminal charges===
For a first offence of at or over .08 or impaired driving, the '''mandatory minimum sentence''' is a $1,000 fine and a driving prohibition of at least one year and up to three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. For a first offence of refusing to blow, the mandatory minimum sentence is a $2,000 fine and a driving prohibition of at least one year and up to three years. Any conviction under these sections of the ''Criminal Code'' means you get a '''criminal record'''. A judge cannot give you a discharge.

Previous drinking and driving convictions mean higher penalties — usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between three and five years for a second conviction and a lifetime prohibition for a third or later conviction.

====If there was an accident====
If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or at or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.

====Insurance premiums====
An impaired driving-related conviction under the ''Criminal Code'' means you will pay more in vehicle insurance premiums, under an ICBC program called '''driver risk premiums'''. This program applies to more serious driving offences. For more, see our information on [[The Points System and ICBC (Script 187)|the points system and ICBC (no. 187)]].

====Criminal record====
A conviction under the ''Criminal Code'' stays on your criminal record and driving record forever. After some time, you can usually ask for a [[Criminal Records and Record Suspensions (Script 205)|record suspension]], which limits access to your criminal record, but even that won’t erase the conviction from your record.

==Common questions==

===Can the police prohibit me from driving based on my roadside screening test results?===
Yes. Police can issue an '''immediate roadside prohibition''' if your breath sample on a roadside screening device shows a warn or fail result, and police have reasonable grounds to believe your ability to drive is affected by alcohol.

Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If you get a '''warn''' result, the driving prohibition police can issue will vary depending on whether you have previous roadside prohibitions. If it is your first prohibition, you’ll get a '''3-day driving prohibition'''. You’ll get a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.

If you get a '''fail''' result, the driving prohibition police can issue will be for '''90 days'''.

If police give you an immediate roadside prohibition, they will also '''impound''' your vehicle (have it towed). You will be required to pay for the towing and storage. You must also pay penalties and fees, and participate in driver safety programs. As well, your vehicle insurance premiums may increase.

{| class="wikitable"
|align="left"|'''Tip'''
Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.42_smooth BC law], if your breath sample on a roadside screening device shows a warn or fail result, you have the right to request a second test using a different roadside screening device. You get the benefit of the lower of the two readings. The police have to inform you of this right before giving you a driving prohibition.
|}

===Can the police prohibit me from driving even if they don’t give me a breath test?===
Yes. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215_smooth BC’s driving laws], if the police have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug, they can issue a '''24-hour roadside prohibition'''. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on a roadside screening device. But if you get a warn or fail result on the screening device, police can use it to issue an immediate roadside prohibition or to hold you for a criminal investigation.

===Can I challenge a driving prohibition issued by the police?===
Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask RoadSafetyBC for a '''review''' of a driving prohibition. You must apply '''within seven days''' of when you get the notice of prohibition.

To ask for the review, you fill in an application form available at any ICBC [https://www.icbc.com/locators/Pages/default.aspx driver licensing office]. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews grounds to dispute] the prohibition vary depending on the type of prohibition. The possible defences are not limited to the grounds to dispute. An expert on police procedure may be available through a lawyer to provide evidence in your case. Close to a quarter of immediate roadside prohibitions are '''revoked''' (cancelled) on review.

During the review process, you are still prohibited from driving.

===Are the rules different for new drivers?===
A new driver participating in BC’s graduated licensing program (a learner or novice driver) can be given a '''12-hour roadside suspension of their driver’s licence''' if a breath test on an approved screening device shows they have '''any''' alcohol in their body. There is no review available of this suspension.

As well, they have to start their current stage of the licensing program over again (for example, novice drivers will start over at the beginning of their 24-month N licensing period).

If a new driver gets a result over .05 on a screening device, they also face the regular consequences fully-licensed drivers face.

===How does a breathalyzer instrument work?===
'''Breathalyzer instruments''' are designed to obtain scientifically and legally valid breath tests. Approved breathalyzer instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood-alcohol concentration. The printout can be used as evidence in court. In BC, breathalyzer instruments are usually located only in designated rooms in police stations.

A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the '''concentration of alcohol in your breath'''. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of at or over 80 milligrams (called “at or over .08”) means you can be convicted of a criminal offence for having a prohibited blood-alcohol content within two hours after driving.

The technician who operates the approved instrument will ask you to blow into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a '''certificate''' describing the test results. Keep this document in its original condition. Don’t write on it or damage it.

===What if I lend my car to someone who drinks and drives?===
Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other consequences apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.

==Get help==

===Finding a lawyer===
The legal issues for impaired driving can be complex and a conviction can seriously harm you. There are lawyers who specialize in drinking and driving cases. You can call the '''Lawyer Referral Service''' to get the name of a lawyer. For $25 plus taxes, you can speak to the lawyer for 30 minutes about your case, to help decide whether you would want to hire them.
:Toll-free: 1-800-663-1919
:Web: [http://www.cbabc.org/For-the-Public/Lawyer-Referral-Service cbabc.org]

You can contact '''Legal Services Society''' to find out if you qualify for a free lawyer under legal aid.
:Telephone: 604-408-2172 in Greater Vancouver
:Toll-free: 1-866-577-2525
:Web: [https://lss.bc.ca/legal_aid/criminalLaw.php legalaid.bc.ca]

If you can’t afford to hire a lawyer and you don’t qualify for legal aid, try to talk with a lawyer before deciding how to respond to any charge against you. On your first appearance in court or when you enter your plea, you can talk to '''duty counsel''' at the courthouse. These are lawyers who give free legal advice to people who have a case in the courthouse on that day.
:Web: [https://lss.bc.ca/legal_aid/criminalAndImmigrationDutyCounsel.php legalaid.bc.ca]

===More information===
The '''BC government''' website includes information on driving prohibitions, suspensions, and impaired driving.
:Web: [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol gov.bc.ca/driving]

'''ICBC''' has information on the driver risk premium.
Toll-free: 1-800-663-3051
:Web: [https://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx icbc.com]

[updated February 2019]

'''The above was last reviewed for legal accuracy by [https://vancouvercriminallaw.com/criminal-lawyers-vancouver-richmond-surrey-victoria/paul-doroshenko/ Paul Doroshenko QC], Acumen Law Corporation.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=auto}}

Impaired Driving

2019-03-05T05:13:16Z

Dial-A-Law: /* If you fight the criminal charges in court */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = autos}}
Impaired driving is a serious offence with complex legal and technical issues, as well as significant penalties if you’re convicted. Learn what to expect if you’re charged with impaired driving.

==Understand your legal rights==

===BC and Canada both have impaired driving laws===
Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only [http://canlii.ca/t/847n the BC law] applies. Sometimes, federal law (the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]'') applies instead of — or in addition to — BC law.

It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.

This information focuses on drinking and driving.

{| class="wikitable"
|align="left"|'''Tip'''
In BC, if your blood-alcohol level is over .05, there are legal consequences. (This level means you have 50 milligrams of alcohol in 100 millilitres of blood.) If you have been drinking, don't drive — take a taxi or bus or call a friend for a ride.
|}

===If you are stopped by the police===
If the police lawfully pull you over, they can require you to take the following tests. They can require these tests even if you aren’t driving but have “'''care or control'''” of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

====Police can require you to blow into a roadside screening device====
If the police lawfully stop you, they may demand you give a breath sample by blowing into a hand-held '''approved screening device''' (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.

The screening device tests for alcohol in your breath. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If the screening device shows a warn result, the police will probably give you an '''immediate roadside prohibition'''. (We explain these below, under “Common questions”.)

If the screening device shows a fail, the police may give you an immediate roadside prohibition or they may demand you take a '''breathalyzer test''' as part of a criminal investigation.

You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge. It is highly advisable to make your best attempt to blow.

{| class="wikitable"
|align="left"|'''Tip'''
Under the law, a '''warn''' result means a blood-alcohol level over .05. A '''fail''' result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.
|}

====Police can require you to take a breathalyzer test====
Under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.28_smooth Criminal Code]'', the police may demand you take a '''breathalyzer test''' if they have reasonable and probable grounds to believe you are committing the offence of impaired driving or have a blood alcohol level at or over .08 within two hours after driving. The police may use a fail reading from a roadside screening test to form their grounds to demand a breathalyzer test.

===If the police demand you take a breathalyzer test===
A '''breathalyzer''' is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are “at or over .08”. This amount is the legal limit under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]''.

If the police demand you take a breathalyzer test, you must go with the police to where the breathalyzer instrument is located (usually, the local police station). As well, you must give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.

====Your rights when detained====
When police make this demand, you are legally held, or '''detained'''. The police must tell you of your '''right to a lawyer''' and your '''other rights under the ''Charter of Rights and Freedoms''''' before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.

If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.

If you are unconscious, you can’t agree to give a sample. The police must get a '''warrant''' to take samples, which they can get by phoning a judicial justice or judge.

====You have the right to remain silent====
You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

===If you refuse to blow (give a breath or blood sample)===
If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a '''reasonable excuse''' not to. If you refuse to do them, you are committing an offence.

Generally, it is best to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. Making genuine attempts to blow that do not work is not an offence.

Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse a breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or '''exercise''', those rights and speak to a lawyer.

The legal issues are complex and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.

===If you are charged with a criminal offence===
Police can charge you with any of three impaired driving-related offences under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Cod]'':
*'''impaired driving''' (driving while your ability to operate a vehicle is impaired by alcohol or a drug)
*having a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after driving (“'''at or over .08'''”)
*failing or refusing to provide breath or blood samples on demand (“'''refusing to blow'''”)

These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. The charges can apply even if you weren’t driving and didn’t move the vehicle — as long as you had “'''care or control'''” of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

If your breathalyzer results were at or over .08, you will typically be charged with being at or over .08 within two hours of driving. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.

====Driving prohibition====
If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a '''24-hour roadside prohibition'''. This takes effect immediately. They also typically issue a '''90-day administrative driving prohibition'''. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)

====Going to court====
If you are charged with any of the three ''Criminal Code'' offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex technical and legal issues, it is highly advisable to get help from a lawyer. We suggest options shortly for finding a lawyer.

===If you fight the criminal charges in court===
In responding to impaired driving-related charges under the ''Criminal Code'', you must decide how to '''plead'''. [[Pleading Guilty to a Criminal Charge (Script 212)|Pleading guilty]] means you accept responsibility for the offence. Pleading “not guilty” means the court will set a '''trial'''.

At the trial, the prosecutor must prove beyond a reasonable doubt that you committed the offence.

For '''impaired driving''', the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.

For '''at or over .08''', the prosecutor must prove your blood-alcohol concentration was at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after you drove. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.

For '''failing to blow''', the prosecutor must prove you failed to give samples — without a reasonable excuse.

The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.

You have the right to '''testify''' (tell the court your story). You don’t have to. But you may want to if you can counter what the witnesses said and raise a reasonable doubt as to whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you ideally make with the help of a lawyer.

===If you are convicted of criminal charges===
For a first offence of at or over .08 or impaired driving, the '''mandatory minimum sentence''' is a $1,000 fine and a driving prohibition of at least one year and up to three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. For a first offence of refusing to blow, the mandatory minimum sentence is a $2,000 fine and a driving prohibition of at least one year and up to three years. Any conviction under these sections of the ''Criminal Code'' means you get a '''criminal record'''. A judge cannot give you a discharge.

Previous drinking and driving convictions mean higher penalties — usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between three and five years for a second conviction and a lifetime prohibition for a third or later conviction.

====If there was an accident====
If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or at or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.

====Insurance premiums====
An impaired driving-related conviction under the ''Criminal Code'' means you will pay more in vehicle insurance premiums, under an ICBC program called '''driver risk premiums'''. This program applies to more serious driving offences. For more, see our information on [[The Points System and ICBC (Script 187)|the points system and ICBC (no. 187)]].

====Criminal record====
A conviction under the ''Criminal Code'' stays on your criminal record and driving record forever. After some time, you can usually ask for a [http://dialalaw.peopleslawschool.ca/criminal-records-and-record-suspensions/ record suspension], which limits access to your criminal record, but even that won’t erase the conviction from your record.

==Common questions==

===Can the police prohibit me from driving based on my roadside screening test results?===
Yes. Police can issue an '''immediate roadside prohibition''' if your breath sample on a roadside screening device shows a warn or fail result, and police have reasonable grounds to believe your ability to drive is affected by alcohol.

Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If you get a '''warn''' result, the driving prohibition police can issue will vary depending on whether you have previous roadside prohibitions. If it is your first prohibition, you’ll get a '''3-day driving prohibition'''. You’ll get a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.

If you get a '''fail''' result, the driving prohibition police can issue will be for '''90 days'''.

If police give you an immediate roadside prohibition, they will also '''impound''' your vehicle (have it towed). You will be required to pay for the towing and storage. You must also pay penalties and fees, and participate in driver safety programs. As well, your vehicle insurance premiums may increase.

{| class="wikitable"
|align="left"|'''Tip'''
Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.42_smooth BC law], if your breath sample on a roadside screening device shows a warn or fail result, you have the right to request a second test using a different roadside screening device. You get the benefit of the lower of the two readings. The police have to inform you of this right before giving you a driving prohibition.
|}

===Can the police prohibit me from driving even if they don’t give me a breath test?===
Yes. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215_smooth BC’s driving laws], if the police have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug, they can issue a '''24-hour roadside prohibition'''. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on a roadside screening device. But if you get a warn or fail result on the screening device, police can use it to issue an immediate roadside prohibition or to hold you for a criminal investigation.

===Can I challenge a driving prohibition issued by the police?===
Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask RoadSafetyBC for a '''review''' of a driving prohibition. You must apply '''within seven days''' of when you get the notice of prohibition.

To ask for the review, you fill in an application form available at any ICBC [https://www.icbc.com/locators/Pages/default.aspx driver licensing office]. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews grounds to dispute] the prohibition vary depending on the type of prohibition. The possible defences are not limited to the grounds to dispute. An expert on police procedure may be available through a lawyer to provide evidence in your case. Close to a quarter of immediate roadside prohibitions are '''revoked''' (cancelled) on review.

During the review process, you are still prohibited from driving.

===Are the rules different for new drivers?===
A new driver participating in BC’s graduated licensing program (a learner or novice driver) can be given a '''12-hour roadside suspension of their driver’s licence''' if a breath test on an approved screening device shows they have '''any''' alcohol in their body. There is no review available of this suspension.

As well, they have to start their current stage of the licensing program over again (for example, novice drivers will start over at the beginning of their 24-month N licensing period).

If a new driver gets a result over .05 on a screening device, they also face the regular consequences fully-licensed drivers face.

===How does a breathalyzer instrument work?===
'''Breathalyzer instruments''' are designed to obtain scientifically and legally valid breath tests. Approved breathalyzer instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood-alcohol concentration. The printout can be used as evidence in court. In BC, breathalyzer instruments are usually located only in designated rooms in police stations.

A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the '''concentration of alcohol in your breath'''. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of at or over 80 milligrams (called “at or over .08”) means you can be convicted of a criminal offence for having a prohibited blood-alcohol content within two hours after driving.

The technician who operates the approved instrument will ask you to blow into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a '''certificate''' describing the test results. Keep this document in its original condition. Don’t write on it or damage it.

===What if I lend my car to someone who drinks and drives?===
Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other consequences apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.

==Get help==

===Finding a lawyer===
The legal issues for impaired driving can be complex and a conviction can seriously harm you. There are lawyers who specialize in drinking and driving cases. You can call the '''Lawyer Referral Service''' to get the name of a lawyer. For $25 plus taxes, you can speak to the lawyer for 30 minutes about your case, to help decide whether you would want to hire them.
:Toll-free: 1-800-663-1919
:Web: [http://www.cbabc.org/For-the-Public/Lawyer-Referral-Service cbabc.org]

You can contact '''Legal Services Society''' to find out if you qualify for a free lawyer under legal aid.
:Telephone: 604-408-2172 in Greater Vancouver
:Toll-free: 1-866-577-2525
:Web: [https://lss.bc.ca/legal_aid/criminalLaw.php legalaid.bc.ca]

If you can’t afford to hire a lawyer and you don’t qualify for legal aid, try to talk with a lawyer before deciding how to respond to any charge against you. On your first appearance in court or when you enter your plea, you can talk to '''duty counsel''' at the courthouse. These are lawyers who give free legal advice to people who have a case in the courthouse on that day.
:Web: [https://lss.bc.ca/legal_aid/criminalAndImmigrationDutyCounsel.php legalaid.bc.ca]

===More information===
The '''BC government''' website includes information on driving prohibitions, suspensions, and impaired driving.
:Web: [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol gov.bc.ca/driving]

'''ICBC''' has information on the driver risk premium.
Toll-free: 1-800-663-3051
:Web: [https://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx icbc.com]

[updated February 2019]

'''The above was last reviewed for legal accuracy by [https://vancouvercriminallaw.com/criminal-lawyers-vancouver-richmond-surrey-victoria/paul-doroshenko/ Paul Doroshenko QC], Acumen Law Corporation.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=auto}}

Impaired Driving

2019-03-05T05:10:52Z

Dial-A-Law: /* Going to court */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = autos}}
Impaired driving is a serious offence with complex legal and technical issues, as well as significant penalties if you’re convicted. Learn what to expect if you’re charged with impaired driving.

==Understand your legal rights==

===BC and Canada both have impaired driving laws===
Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only [http://canlii.ca/t/847n the BC law] applies. Sometimes, federal law (the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]'') applies instead of — or in addition to — BC law.

It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.

This information focuses on drinking and driving.

{| class="wikitable"
|align="left"|'''Tip'''
In BC, if your blood-alcohol level is over .05, there are legal consequences. (This level means you have 50 milligrams of alcohol in 100 millilitres of blood.) If you have been drinking, don't drive — take a taxi or bus or call a friend for a ride.
|}

===If you are stopped by the police===
If the police lawfully pull you over, they can require you to take the following tests. They can require these tests even if you aren’t driving but have “'''care or control'''” of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

====Police can require you to blow into a roadside screening device====
If the police lawfully stop you, they may demand you give a breath sample by blowing into a hand-held '''approved screening device''' (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.

The screening device tests for alcohol in your breath. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If the screening device shows a warn result, the police will probably give you an '''immediate roadside prohibition'''. (We explain these below, under “Common questions”.)

If the screening device shows a fail, the police may give you an immediate roadside prohibition or they may demand you take a '''breathalyzer test''' as part of a criminal investigation.

You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge. It is highly advisable to make your best attempt to blow.

{| class="wikitable"
|align="left"|'''Tip'''
Under the law, a '''warn''' result means a blood-alcohol level over .05. A '''fail''' result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.
|}

====Police can require you to take a breathalyzer test====
Under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.28_smooth Criminal Code]'', the police may demand you take a '''breathalyzer test''' if they have reasonable and probable grounds to believe you are committing the offence of impaired driving or have a blood alcohol level at or over .08 within two hours after driving. The police may use a fail reading from a roadside screening test to form their grounds to demand a breathalyzer test.

===If the police demand you take a breathalyzer test===
A '''breathalyzer''' is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are “at or over .08”. This amount is the legal limit under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]''.

If the police demand you take a breathalyzer test, you must go with the police to where the breathalyzer instrument is located (usually, the local police station). As well, you must give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.

====Your rights when detained====
When police make this demand, you are legally held, or '''detained'''. The police must tell you of your '''right to a lawyer''' and your '''other rights under the ''Charter of Rights and Freedoms''''' before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.

If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.

If you are unconscious, you can’t agree to give a sample. The police must get a '''warrant''' to take samples, which they can get by phoning a judicial justice or judge.

====You have the right to remain silent====
You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

===If you refuse to blow (give a breath or blood sample)===
If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a '''reasonable excuse''' not to. If you refuse to do them, you are committing an offence.

Generally, it is best to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. Making genuine attempts to blow that do not work is not an offence.

Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse a breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or '''exercise''', those rights and speak to a lawyer.

The legal issues are complex and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.

===If you are charged with a criminal offence===
Police can charge you with any of three impaired driving-related offences under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Cod]'':
*'''impaired driving''' (driving while your ability to operate a vehicle is impaired by alcohol or a drug)
*having a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after driving (“'''at or over .08'''”)
*failing or refusing to provide breath or blood samples on demand (“'''refusing to blow'''”)

These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. The charges can apply even if you weren’t driving and didn’t move the vehicle — as long as you had “'''care or control'''” of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

If your breathalyzer results were at or over .08, you will typically be charged with being at or over .08 within two hours of driving. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.

====Driving prohibition====
If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a '''24-hour roadside prohibition'''. This takes effect immediately. They also typically issue a '''90-day administrative driving prohibition'''. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)

====Going to court====
If you are charged with any of the three ''Criminal Code'' offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex technical and legal issues, it is highly advisable to get help from a lawyer. We suggest options shortly for finding a lawyer.

===If you fight the criminal charges in court===
In responding to impaired driving-related charges under the ''Criminal Code'', you must decide how to '''plead'''. [http://dialalaw.peopleslawschool.ca/pleading-guilty-to-a-criminal-charge/ Pleading guilty] means you accept responsibility for the offence. Pleading “not guilty” means the court will set a '''trial'''.

At the trial, the prosecutor must prove beyond a reasonable doubt that you committed the offence.

For '''impaired driving''', the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.

For '''at or over .08''', the prosecutor must prove your blood-alcohol concentration was at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after you drove. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.

For '''failing to blow''', the prosecutor must prove you failed to give samples — without a reasonable excuse.

The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.

You have the right to '''testify''' (tell the court your story). You don’t have to. But you may want to if you can counter what the witnesses said and raise a reasonable doubt as to whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you ideally make with the help of a lawyer.

===If you are convicted of criminal charges===
For a first offence of at or over .08 or impaired driving, the '''mandatory minimum sentence''' is a $1,000 fine and a driving prohibition of at least one year and up to three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. For a first offence of refusing to blow, the mandatory minimum sentence is a $2,000 fine and a driving prohibition of at least one year and up to three years. Any conviction under these sections of the ''Criminal Code'' means you get a '''criminal record'''. A judge cannot give you a discharge.

Previous drinking and driving convictions mean higher penalties — usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between three and five years for a second conviction and a lifetime prohibition for a third or later conviction.

====If there was an accident====
If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or at or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.

====Insurance premiums====
An impaired driving-related conviction under the ''Criminal Code'' means you will pay more in vehicle insurance premiums, under an ICBC program called '''driver risk premiums'''. This program applies to more serious driving offences. For more, see our information on [[The Points System and ICBC (Script 187)|the points system and ICBC (no. 187)]].

====Criminal record====
A conviction under the ''Criminal Code'' stays on your criminal record and driving record forever. After some time, you can usually ask for a [http://dialalaw.peopleslawschool.ca/criminal-records-and-record-suspensions/ record suspension], which limits access to your criminal record, but even that won’t erase the conviction from your record.

==Common questions==

===Can the police prohibit me from driving based on my roadside screening test results?===
Yes. Police can issue an '''immediate roadside prohibition''' if your breath sample on a roadside screening device shows a warn or fail result, and police have reasonable grounds to believe your ability to drive is affected by alcohol.

Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If you get a '''warn''' result, the driving prohibition police can issue will vary depending on whether you have previous roadside prohibitions. If it is your first prohibition, you’ll get a '''3-day driving prohibition'''. You’ll get a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.

If you get a '''fail''' result, the driving prohibition police can issue will be for '''90 days'''.

If police give you an immediate roadside prohibition, they will also '''impound''' your vehicle (have it towed). You will be required to pay for the towing and storage. You must also pay penalties and fees, and participate in driver safety programs. As well, your vehicle insurance premiums may increase.

{| class="wikitable"
|align="left"|'''Tip'''
Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.42_smooth BC law], if your breath sample on a roadside screening device shows a warn or fail result, you have the right to request a second test using a different roadside screening device. You get the benefit of the lower of the two readings. The police have to inform you of this right before giving you a driving prohibition.
|}

===Can the police prohibit me from driving even if they don’t give me a breath test?===
Yes. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215_smooth BC’s driving laws], if the police have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug, they can issue a '''24-hour roadside prohibition'''. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on a roadside screening device. But if you get a warn or fail result on the screening device, police can use it to issue an immediate roadside prohibition or to hold you for a criminal investigation.

===Can I challenge a driving prohibition issued by the police?===
Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask RoadSafetyBC for a '''review''' of a driving prohibition. You must apply '''within seven days''' of when you get the notice of prohibition.

To ask for the review, you fill in an application form available at any ICBC [https://www.icbc.com/locators/Pages/default.aspx driver licensing office]. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews grounds to dispute] the prohibition vary depending on the type of prohibition. The possible defences are not limited to the grounds to dispute. An expert on police procedure may be available through a lawyer to provide evidence in your case. Close to a quarter of immediate roadside prohibitions are '''revoked''' (cancelled) on review.

During the review process, you are still prohibited from driving.

===Are the rules different for new drivers?===
A new driver participating in BC’s graduated licensing program (a learner or novice driver) can be given a '''12-hour roadside suspension of their driver’s licence''' if a breath test on an approved screening device shows they have '''any''' alcohol in their body. There is no review available of this suspension.

As well, they have to start their current stage of the licensing program over again (for example, novice drivers will start over at the beginning of their 24-month N licensing period).

If a new driver gets a result over .05 on a screening device, they also face the regular consequences fully-licensed drivers face.

===How does a breathalyzer instrument work?===
'''Breathalyzer instruments''' are designed to obtain scientifically and legally valid breath tests. Approved breathalyzer instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood-alcohol concentration. The printout can be used as evidence in court. In BC, breathalyzer instruments are usually located only in designated rooms in police stations.

A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the '''concentration of alcohol in your breath'''. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of at or over 80 milligrams (called “at or over .08”) means you can be convicted of a criminal offence for having a prohibited blood-alcohol content within two hours after driving.

The technician who operates the approved instrument will ask you to blow into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a '''certificate''' describing the test results. Keep this document in its original condition. Don’t write on it or damage it.

===What if I lend my car to someone who drinks and drives?===
Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other consequences apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.

==Get help==

===Finding a lawyer===
The legal issues for impaired driving can be complex and a conviction can seriously harm you. There are lawyers who specialize in drinking and driving cases. You can call the '''Lawyer Referral Service''' to get the name of a lawyer. For $25 plus taxes, you can speak to the lawyer for 30 minutes about your case, to help decide whether you would want to hire them.
:Toll-free: 1-800-663-1919
:Web: [http://www.cbabc.org/For-the-Public/Lawyer-Referral-Service cbabc.org]

You can contact '''Legal Services Society''' to find out if you qualify for a free lawyer under legal aid.
:Telephone: 604-408-2172 in Greater Vancouver
:Toll-free: 1-866-577-2525
:Web: [https://lss.bc.ca/legal_aid/criminalLaw.php legalaid.bc.ca]

If you can’t afford to hire a lawyer and you don’t qualify for legal aid, try to talk with a lawyer before deciding how to respond to any charge against you. On your first appearance in court or when you enter your plea, you can talk to '''duty counsel''' at the courthouse. These are lawyers who give free legal advice to people who have a case in the courthouse on that day.
:Web: [https://lss.bc.ca/legal_aid/criminalAndImmigrationDutyCounsel.php legalaid.bc.ca]

===More information===
The '''BC government''' website includes information on driving prohibitions, suspensions, and impaired driving.
:Web: [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol gov.bc.ca/driving]

'''ICBC''' has information on the driver risk premium.
Toll-free: 1-800-663-3051
:Web: [https://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx icbc.com]

[updated February 2019]

'''The above was last reviewed for legal accuracy by [https://vancouvercriminallaw.com/criminal-lawyers-vancouver-richmond-surrey-victoria/paul-doroshenko/ Paul Doroshenko QC], Acumen Law Corporation.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=auto}}

Impaired Driving

2019-03-05T05:07:59Z

Dial-A-Law: /* BC and Canada both have impaired driving laws */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = autos}}
Impaired driving is a serious offence with complex legal and technical issues, as well as significant penalties if you’re convicted. Learn what to expect if you’re charged with impaired driving.

==Understand your legal rights==

===BC and Canada both have impaired driving laws===
Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only [http://canlii.ca/t/847n the BC law] applies. Sometimes, federal law (the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]'') applies instead of — or in addition to — BC law.

It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.

This information focuses on drinking and driving.

{| class="wikitable"
|align="left"|'''Tip'''
In BC, if your blood-alcohol level is over .05, there are legal consequences. (This level means you have 50 milligrams of alcohol in 100 millilitres of blood.) If you have been drinking, don't drive — take a taxi or bus or call a friend for a ride.
|}

===If you are stopped by the police===
If the police lawfully pull you over, they can require you to take the following tests. They can require these tests even if you aren’t driving but have “'''care or control'''” of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

====Police can require you to blow into a roadside screening device====
If the police lawfully stop you, they may demand you give a breath sample by blowing into a hand-held '''approved screening device''' (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.

The screening device tests for alcohol in your breath. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If the screening device shows a warn result, the police will probably give you an '''immediate roadside prohibition'''. (We explain these below, under “Common questions”.)

If the screening device shows a fail, the police may give you an immediate roadside prohibition or they may demand you take a '''breathalyzer test''' as part of a criminal investigation.

You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge. It is highly advisable to make your best attempt to blow.

{| class="wikitable"
|align="left"|'''Tip'''
Under the law, a '''warn''' result means a blood-alcohol level over .05. A '''fail''' result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.
|}

====Police can require you to take a breathalyzer test====
Under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.28_smooth Criminal Code]'', the police may demand you take a '''breathalyzer test''' if they have reasonable and probable grounds to believe you are committing the offence of impaired driving or have a blood alcohol level at or over .08 within two hours after driving. The police may use a fail reading from a roadside screening test to form their grounds to demand a breathalyzer test.

===If the police demand you take a breathalyzer test===
A '''breathalyzer''' is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are “at or over .08”. This amount is the legal limit under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]''.

If the police demand you take a breathalyzer test, you must go with the police to where the breathalyzer instrument is located (usually, the local police station). As well, you must give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.

====Your rights when detained====
When police make this demand, you are legally held, or '''detained'''. The police must tell you of your '''right to a lawyer''' and your '''other rights under the ''Charter of Rights and Freedoms''''' before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.

If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.

If you are unconscious, you can’t agree to give a sample. The police must get a '''warrant''' to take samples, which they can get by phoning a judicial justice or judge.

====You have the right to remain silent====
You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

===If you refuse to blow (give a breath or blood sample)===
If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a '''reasonable excuse''' not to. If you refuse to do them, you are committing an offence.

Generally, it is best to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. Making genuine attempts to blow that do not work is not an offence.

Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse a breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or '''exercise''', those rights and speak to a lawyer.

The legal issues are complex and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.

===If you are charged with a criminal offence===
Police can charge you with any of three impaired driving-related offences under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Cod]'':
*'''impaired driving''' (driving while your ability to operate a vehicle is impaired by alcohol or a drug)
*having a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after driving (“'''at or over .08'''”)
*failing or refusing to provide breath or blood samples on demand (“'''refusing to blow'''”)

These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. The charges can apply even if you weren’t driving and didn’t move the vehicle — as long as you had “'''care or control'''” of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

If your breathalyzer results were at or over .08, you will typically be charged with being at or over .08 within two hours of driving. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.

====Driving prohibition====
If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a '''24-hour roadside prohibition'''. This takes effect immediately. They also typically issue a '''90-day administrative driving prohibition'''. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)

====Going to court====
If you are charged with any of the three 'Criminal Code'' offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex technical and legal issues, it is highly advisable to get help from a lawyer. We suggest options shortly for finding a lawyer.

===If you fight the criminal charges in court===
In responding to impaired driving-related charges under the ''Criminal Code'', you must decide how to '''plead'''. [http://dialalaw.peopleslawschool.ca/pleading-guilty-to-a-criminal-charge/ Pleading guilty] means you accept responsibility for the offence. Pleading “not guilty” means the court will set a '''trial'''.

At the trial, the prosecutor must prove beyond a reasonable doubt that you committed the offence.

For '''impaired driving''', the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.

For '''at or over .08''', the prosecutor must prove your blood-alcohol concentration was at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after you drove. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.

For '''failing to blow''', the prosecutor must prove you failed to give samples — without a reasonable excuse.

The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.

You have the right to '''testify''' (tell the court your story). You don’t have to. But you may want to if you can counter what the witnesses said and raise a reasonable doubt as to whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you ideally make with the help of a lawyer.

===If you are convicted of criminal charges===
For a first offence of at or over .08 or impaired driving, the '''mandatory minimum sentence''' is a $1,000 fine and a driving prohibition of at least one year and up to three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. For a first offence of refusing to blow, the mandatory minimum sentence is a $2,000 fine and a driving prohibition of at least one year and up to three years. Any conviction under these sections of the ''Criminal Code'' means you get a '''criminal record'''. A judge cannot give you a discharge.

Previous drinking and driving convictions mean higher penalties — usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between three and five years for a second conviction and a lifetime prohibition for a third or later conviction.

====If there was an accident====
If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or at or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.

====Insurance premiums====
An impaired driving-related conviction under the ''Criminal Code'' means you will pay more in vehicle insurance premiums, under an ICBC program called '''driver risk premiums'''. This program applies to more serious driving offences. For more, see our information on [[The Points System and ICBC (Script 187)|the points system and ICBC (no. 187)]].

====Criminal record====
A conviction under the ''Criminal Code'' stays on your criminal record and driving record forever. After some time, you can usually ask for a [http://dialalaw.peopleslawschool.ca/criminal-records-and-record-suspensions/ record suspension], which limits access to your criminal record, but even that won’t erase the conviction from your record.

==Common questions==

===Can the police prohibit me from driving based on my roadside screening test results?===
Yes. Police can issue an '''immediate roadside prohibition''' if your breath sample on a roadside screening device shows a warn or fail result, and police have reasonable grounds to believe your ability to drive is affected by alcohol.

Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If you get a '''warn''' result, the driving prohibition police can issue will vary depending on whether you have previous roadside prohibitions. If it is your first prohibition, you’ll get a '''3-day driving prohibition'''. You’ll get a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.

If you get a '''fail''' result, the driving prohibition police can issue will be for '''90 days'''.

If police give you an immediate roadside prohibition, they will also '''impound''' your vehicle (have it towed). You will be required to pay for the towing and storage. You must also pay penalties and fees, and participate in driver safety programs. As well, your vehicle insurance premiums may increase.

{| class="wikitable"
|align="left"|'''Tip'''
Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.42_smooth BC law], if your breath sample on a roadside screening device shows a warn or fail result, you have the right to request a second test using a different roadside screening device. You get the benefit of the lower of the two readings. The police have to inform you of this right before giving you a driving prohibition.
|}

===Can the police prohibit me from driving even if they don’t give me a breath test?===
Yes. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215_smooth BC’s driving laws], if the police have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug, they can issue a '''24-hour roadside prohibition'''. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on a roadside screening device. But if you get a warn or fail result on the screening device, police can use it to issue an immediate roadside prohibition or to hold you for a criminal investigation.

===Can I challenge a driving prohibition issued by the police?===
Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask RoadSafetyBC for a '''review''' of a driving prohibition. You must apply '''within seven days''' of when you get the notice of prohibition.

To ask for the review, you fill in an application form available at any ICBC [https://www.icbc.com/locators/Pages/default.aspx driver licensing office]. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews grounds to dispute] the prohibition vary depending on the type of prohibition. The possible defences are not limited to the grounds to dispute. An expert on police procedure may be available through a lawyer to provide evidence in your case. Close to a quarter of immediate roadside prohibitions are '''revoked''' (cancelled) on review.

During the review process, you are still prohibited from driving.

===Are the rules different for new drivers?===
A new driver participating in BC’s graduated licensing program (a learner or novice driver) can be given a '''12-hour roadside suspension of their driver’s licence''' if a breath test on an approved screening device shows they have '''any''' alcohol in their body. There is no review available of this suspension.

As well, they have to start their current stage of the licensing program over again (for example, novice drivers will start over at the beginning of their 24-month N licensing period).

If a new driver gets a result over .05 on a screening device, they also face the regular consequences fully-licensed drivers face.

===How does a breathalyzer instrument work?===
'''Breathalyzer instruments''' are designed to obtain scientifically and legally valid breath tests. Approved breathalyzer instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood-alcohol concentration. The printout can be used as evidence in court. In BC, breathalyzer instruments are usually located only in designated rooms in police stations.

A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the '''concentration of alcohol in your breath'''. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of at or over 80 milligrams (called “at or over .08”) means you can be convicted of a criminal offence for having a prohibited blood-alcohol content within two hours after driving.

The technician who operates the approved instrument will ask you to blow into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a '''certificate''' describing the test results. Keep this document in its original condition. Don’t write on it or damage it.

===What if I lend my car to someone who drinks and drives?===
Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other consequences apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.

==Get help==

===Finding a lawyer===
The legal issues for impaired driving can be complex and a conviction can seriously harm you. There are lawyers who specialize in drinking and driving cases. You can call the '''Lawyer Referral Service''' to get the name of a lawyer. For $25 plus taxes, you can speak to the lawyer for 30 minutes about your case, to help decide whether you would want to hire them.
:Toll-free: 1-800-663-1919
:Web: [http://www.cbabc.org/For-the-Public/Lawyer-Referral-Service cbabc.org]

You can contact '''Legal Services Society''' to find out if you qualify for a free lawyer under legal aid.
:Telephone: 604-408-2172 in Greater Vancouver
:Toll-free: 1-866-577-2525
:Web: [https://lss.bc.ca/legal_aid/criminalLaw.php legalaid.bc.ca]

If you can’t afford to hire a lawyer and you don’t qualify for legal aid, try to talk with a lawyer before deciding how to respond to any charge against you. On your first appearance in court or when you enter your plea, you can talk to '''duty counsel''' at the courthouse. These are lawyers who give free legal advice to people who have a case in the courthouse on that day.
:Web: [https://lss.bc.ca/legal_aid/criminalAndImmigrationDutyCounsel.php legalaid.bc.ca]

===More information===
The '''BC government''' website includes information on driving prohibitions, suspensions, and impaired driving.
:Web: [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol gov.bc.ca/driving]

'''ICBC''' has information on the driver risk premium.
Toll-free: 1-800-663-3051
:Web: [https://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx icbc.com]

[updated February 2019]

'''The above was last reviewed for legal accuracy by [https://vancouvercriminallaw.com/criminal-lawyers-vancouver-richmond-surrey-victoria/paul-doroshenko/ Paul Doroshenko QC], Acumen Law Corporation.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=auto}}

Impaired Driving

2019-03-05T05:05:42Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = autos}}
Impaired driving is a serious offence with complex legal and technical issues, as well as significant penalties if you’re convicted. Learn what to expect if you’re charged with impaired driving.

==Understand your legal rights==

===BC and Canada both have impaired driving laws===
Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only [http://canlii.ca/t/847n the BC law] applies. Sometimes, federal law (the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]'') applies instead of — or in addition to — BC law.
It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.

This information focuses on drinking and driving.

{| class="wikitable"
|align="left"|'''Tip'''
In BC, if your blood-alcohol level is over .05, there are legal consequences. (This level means you have 50 milligrams of alcohol in 100 millilitres of blood.) If you have been drinking, don't drive — take a taxi or bus or call a friend for a ride.
|}

===If you are stopped by the police===
If the police lawfully pull you over, they can require you to take the following tests. They can require these tests even if you aren’t driving but have “'''care or control'''” of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

====Police can require you to blow into a roadside screening device====
If the police lawfully stop you, they may demand you give a breath sample by blowing into a hand-held '''approved screening device''' (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.

The screening device tests for alcohol in your breath. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If the screening device shows a warn result, the police will probably give you an '''immediate roadside prohibition'''. (We explain these below, under “Common questions”.)

If the screening device shows a fail, the police may give you an immediate roadside prohibition or they may demand you take a '''breathalyzer test''' as part of a criminal investigation.

You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge. It is highly advisable to make your best attempt to blow.

{| class="wikitable"
|align="left"|'''Tip'''
Under the law, a '''warn''' result means a blood-alcohol level over .05. A '''fail''' result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.
|}

====Police can require you to take a breathalyzer test====
Under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.28_smooth Criminal Code]'', the police may demand you take a '''breathalyzer test''' if they have reasonable and probable grounds to believe you are committing the offence of impaired driving or have a blood alcohol level at or over .08 within two hours after driving. The police may use a fail reading from a roadside screening test to form their grounds to demand a breathalyzer test.

===If the police demand you take a breathalyzer test===
A '''breathalyzer''' is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are “at or over .08”. This amount is the legal limit under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Code]''.

If the police demand you take a breathalyzer test, you must go with the police to where the breathalyzer instrument is located (usually, the local police station). As well, you must give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.

====Your rights when detained====
When police make this demand, you are legally held, or '''detained'''. The police must tell you of your '''right to a lawyer''' and your '''other rights under the ''Charter of Rights and Freedoms''''' before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.

If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.

If you are unconscious, you can’t agree to give a sample. The police must get a '''warrant''' to take samples, which they can get by phoning a judicial justice or judge.

====You have the right to remain silent====
You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

===If you refuse to blow (give a breath or blood sample)===
If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a '''reasonable excuse''' not to. If you refuse to do them, you are committing an offence.

Generally, it is best to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. Making genuine attempts to blow that do not work is not an offence.

Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse a breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or '''exercise''', those rights and speak to a lawyer.

The legal issues are complex and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.

===If you are charged with a criminal offence===
Police can charge you with any of three impaired driving-related offences under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth Criminal Cod]'':
*'''impaired driving''' (driving while your ability to operate a vehicle is impaired by alcohol or a drug)
*having a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after driving (“'''at or over .08'''”)
*failing or refusing to provide breath or blood samples on demand (“'''refusing to blow'''”)

These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. The charges can apply even if you weren’t driving and didn’t move the vehicle — as long as you had “'''care or control'''” of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

If your breathalyzer results were at or over .08, you will typically be charged with being at or over .08 within two hours of driving. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.

====Driving prohibition====
If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a '''24-hour roadside prohibition'''. This takes effect immediately. They also typically issue a '''90-day administrative driving prohibition'''. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)

====Going to court====
If you are charged with any of the three 'Criminal Code'' offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex technical and legal issues, it is highly advisable to get help from a lawyer. We suggest options shortly for finding a lawyer.

===If you fight the criminal charges in court===
In responding to impaired driving-related charges under the ''Criminal Code'', you must decide how to '''plead'''. [http://dialalaw.peopleslawschool.ca/pleading-guilty-to-a-criminal-charge/ Pleading guilty] means you accept responsibility for the offence. Pleading “not guilty” means the court will set a '''trial'''.

At the trial, the prosecutor must prove beyond a reasonable doubt that you committed the offence.

For '''impaired driving''', the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.

For '''at or over .08''', the prosecutor must prove your blood-alcohol concentration was at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after you drove. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.

For '''failing to blow''', the prosecutor must prove you failed to give samples — without a reasonable excuse.

The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.

You have the right to '''testify''' (tell the court your story). You don’t have to. But you may want to if you can counter what the witnesses said and raise a reasonable doubt as to whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you ideally make with the help of a lawyer.

===If you are convicted of criminal charges===
For a first offence of at or over .08 or impaired driving, the '''mandatory minimum sentence''' is a $1,000 fine and a driving prohibition of at least one year and up to three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. For a first offence of refusing to blow, the mandatory minimum sentence is a $2,000 fine and a driving prohibition of at least one year and up to three years. Any conviction under these sections of the ''Criminal Code'' means you get a '''criminal record'''. A judge cannot give you a discharge.

Previous drinking and driving convictions mean higher penalties — usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between three and five years for a second conviction and a lifetime prohibition for a third or later conviction.

====If there was an accident====
If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or at or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.

====Insurance premiums====
An impaired driving-related conviction under the ''Criminal Code'' means you will pay more in vehicle insurance premiums, under an ICBC program called '''driver risk premiums'''. This program applies to more serious driving offences. For more, see our information on [[The Points System and ICBC (Script 187)|the points system and ICBC (no. 187)]].

====Criminal record====
A conviction under the ''Criminal Code'' stays on your criminal record and driving record forever. After some time, you can usually ask for a [http://dialalaw.peopleslawschool.ca/criminal-records-and-record-suspensions/ record suspension], which limits access to your criminal record, but even that won’t erase the conviction from your record.

==Common questions==

===Can the police prohibit me from driving based on my roadside screening test results?===
Yes. Police can issue an '''immediate roadside prohibition''' if your breath sample on a roadside screening device shows a warn or fail result, and police have reasonable grounds to believe your ability to drive is affected by alcohol.

Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.

If you get a '''warn''' result, the driving prohibition police can issue will vary depending on whether you have previous roadside prohibitions. If it is your first prohibition, you’ll get a '''3-day driving prohibition'''. You’ll get a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.

If you get a '''fail''' result, the driving prohibition police can issue will be for '''90 days'''.

If police give you an immediate roadside prohibition, they will also '''impound''' your vehicle (have it towed). You will be required to pay for the towing and storage. You must also pay penalties and fees, and participate in driver safety programs. As well, your vehicle insurance premiums may increase.

{| class="wikitable"
|align="left"|'''Tip'''
Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.42_smooth BC law], if your breath sample on a roadside screening device shows a warn or fail result, you have the right to request a second test using a different roadside screening device. You get the benefit of the lower of the two readings. The police have to inform you of this right before giving you a driving prohibition.
|}

===Can the police prohibit me from driving even if they don’t give me a breath test?===
Yes. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215_smooth BC’s driving laws], if the police have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug, they can issue a '''24-hour roadside prohibition'''. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on a roadside screening device. But if you get a warn or fail result on the screening device, police can use it to issue an immediate roadside prohibition or to hold you for a criminal investigation.

===Can I challenge a driving prohibition issued by the police?===
Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask RoadSafetyBC for a '''review''' of a driving prohibition. You must apply '''within seven days''' of when you get the notice of prohibition.

To ask for the review, you fill in an application form available at any ICBC [https://www.icbc.com/locators/Pages/default.aspx driver licensing office]. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews grounds to dispute] the prohibition vary depending on the type of prohibition. The possible defences are not limited to the grounds to dispute. An expert on police procedure may be available through a lawyer to provide evidence in your case. Close to a quarter of immediate roadside prohibitions are '''revoked''' (cancelled) on review.

During the review process, you are still prohibited from driving.

===Are the rules different for new drivers?===
A new driver participating in BC’s graduated licensing program (a learner or novice driver) can be given a '''12-hour roadside suspension of their driver’s licence''' if a breath test on an approved screening device shows they have '''any''' alcohol in their body. There is no review available of this suspension.

As well, they have to start their current stage of the licensing program over again (for example, novice drivers will start over at the beginning of their 24-month N licensing period).

If a new driver gets a result over .05 on a screening device, they also face the regular consequences fully-licensed drivers face.

===How does a breathalyzer instrument work?===
'''Breathalyzer instruments''' are designed to obtain scientifically and legally valid breath tests. Approved breathalyzer instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood-alcohol concentration. The printout can be used as evidence in court. In BC, breathalyzer instruments are usually located only in designated rooms in police stations.

A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the '''concentration of alcohol in your breath'''. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of at or over 80 milligrams (called “at or over .08”) means you can be convicted of a criminal offence for having a prohibited blood-alcohol content within two hours after driving.

The technician who operates the approved instrument will ask you to blow into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a '''certificate''' describing the test results. Keep this document in its original condition. Don’t write on it or damage it.

===What if I lend my car to someone who drinks and drives?===
Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other consequences apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.

==Get help==

===Finding a lawyer===
The legal issues for impaired driving can be complex and a conviction can seriously harm you. There are lawyers who specialize in drinking and driving cases. You can call the '''Lawyer Referral Service''' to get the name of a lawyer. For $25 plus taxes, you can speak to the lawyer for 30 minutes about your case, to help decide whether you would want to hire them.
:Toll-free: 1-800-663-1919
:Web: [http://www.cbabc.org/For-the-Public/Lawyer-Referral-Service cbabc.org]

You can contact '''Legal Services Society''' to find out if you qualify for a free lawyer under legal aid.
:Telephone: 604-408-2172 in Greater Vancouver
:Toll-free: 1-866-577-2525
:Web: [https://lss.bc.ca/legal_aid/criminalLaw.php legalaid.bc.ca]

If you can’t afford to hire a lawyer and you don’t qualify for legal aid, try to talk with a lawyer before deciding how to respond to any charge against you. On your first appearance in court or when you enter your plea, you can talk to '''duty counsel''' at the courthouse. These are lawyers who give free legal advice to people who have a case in the courthouse on that day.
:Web: [https://lss.bc.ca/legal_aid/criminalAndImmigrationDutyCounsel.php legalaid.bc.ca]

===More information===
The '''BC government''' website includes information on driving prohibitions, suspensions, and impaired driving.
:Web: [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol gov.bc.ca/driving]

'''ICBC''' has information on the driver risk premium.
Toll-free: 1-800-663-3051
:Web: [https://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx icbc.com]

[updated February 2019]

'''The above was last reviewed for legal accuracy by [https://vancouvercriminallaw.com/criminal-lawyers-vancouver-richmond-surrey-victoria/paul-doroshenko/ Paul Doroshenko QC], Acumen Law Corporation.'''

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Leasing a Car

2019-03-05T04:38:07Z

Dial-A-Law: /* If you’re concerned about a dealer */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = autos}}
Leasing a vehicle is quite different from buying one. Leasing can offer lower monthly payments, but you typically spend more in the long run. Learn your rights if you lease.

==Understand your legal rights==

===How leasing differs from buying===

A '''lease''' is an agreement to rent and use someone else’s property, in this case, a vehicle. A lease can last from several months to several years. At the start of a lease, you make a first (initial) payment. You may also have to pay a security deposit. After that, you make monthly payments.

Leasing is an alternative to buying — both have advantages and disadvantages. If you lease, you don’t own the vehicle. And you have different rights and responsibilities than if you buy.

====Advantages of leasing====
On the surface, leasing can be more appealing than buying. You typically get a newer vehicle. Your monthly lease payments can be much lower than the monthly payments on a car loan. Taxes may be lower because they are based on monthly payments (as opposed to the purchase price).

Many find they can afford a more expensive vehicle, or one with more options, if they lease.

====Disadvantages of leasing====
But there are disadvantages to leasing a vehicle.

One is the dealer owns the vehicle, not you. This means the dealer may place restrictions on who may drive it. You may also have to follow — and pay for — a set maintenance schedule.

And at the end of the lease, you haven’t built up '''equity''' in the vehicle the way you would have if you had bought. At the end of paying off a car loan, you own the vehicle. At the end of a lease, you own nothing.

The result is that leasing typically costs you more than borrowing money to buy a vehicle. For more on buying a vehicle, see our information on [[Buying a Used Car (Script 197)|buying a used car (no. 197)]].

===Types of vehicle leases===

There are two types of vehicle lease.

First, a '''straight lease'''. With this, you return the vehicle when the lease ends and owe nothing more. This is rarely used.

Second, a '''lease with an option to purchase'''. This comes in two forms — open and closed. In a '''closed lease''' with an option to purchase, you pay an agreed-on amount if you decide to buy the vehicle at the end of the lease.

In an '''open lease''' with an option to purchase, you may have to pay an extra amount at the end of the lease. How much more you have to pay is explained in the lease agreement. At the beginning of the lease, a dealer estimates what a vehicle will be worth at the end of the lease (the '''residual value''') and then calculates the monthly payments based on that estimate. If the vehicle is worth less at the end of the lease, you have to pay more to make up the difference. You may also have to pay extra if you drove more than the lease allowed or if the vehicle has more than normal wear.

===What the lease must tell you===
A '''lease agreement''' is a legally binding contract. Make sure you understand it before you sign it. Under the [https://www.canlii.org/en/bc/laws/regu/bc-reg-447-78/latest/bc-reg-447-78.html#sec30_smooth law in BC], the lease agreement must include:
*a summary of costs and credits for any extended warranty
*all express warranties and guarantees made by the manufacturer or dealer
*who is responsible for maintaining and servicing the vehicle
*a description of any insurance, including types and amounts of coverage, that you must provide and pay for
*any limit on your use and enjoyment of the vehicle, including any restriction on who can drive it and any requirement for permission to take the vehicle outside of BC
*the amount of tax in each periodic payment you must make under the agreement
*the cooling-off period (described below)

====The dealer must give you a disclosure statement====
As well, another [https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec101_smooth law in BC] requires the dealer to give you a '''disclosure statement''' before you sign the lease. Read it carefully. It has all the key terms and details of the lease.

====The dealer must tell you if there is a lien on the vehicle====
Another [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-410/latest/rsbc-1996-c-410.html#sec16_smooth BC law] requires a person leasing goods to tell you if there is any '''lien''' or charge on the goods in favour of a third party. A lien is a legal claim made on property — such as a vehicle — to make sure someone pays a debt. Liens are attached to a vehicle, not to its owner. If you lease a vehicle with a lien on it, the lien holder can take the vehicle from you as payment for the debt.

===You can change your mind during the cooling-off period===
You get one business day after you sign the lease to cancel it — this is the '''cooling-off period'''. During this time, the law requires the vehicle to stay with the leasing company. If you change your mind in that time, you can cancel the lease and get your money back without penalty. While you have the whole day to cancel, it’s better to tell the dealer during business hours in writing.

Some days do not count in the cooling-off period. Statutory holidays, Sundays, and any day the dealership is closed do not count. So if you sign a lease on a Saturday, and the dealership is closed on Sunday, Monday is the cooling-off day when you can cancel the contract.

You can '''waive''' (give up) the cooling-off period. If you want to do that, you must do it in writing. Read the lease documents carefully because they may include a waiver.

==Common questions==

===What can happen if I have trouble paying under a lease?===
If you fail to make a payment under a lease, this is called a '''default'''. If you default under the lease, the leasing company may be able to take the vehicle back ('''seize''' it) or sue you for all remaining lease payments. Depending on the lease agreement and the use you put the vehicle to, they may be able to do both.

Key is whether the lease is viewed under the law as a “true lease” or a “secured lease”. Generally, a '''true lease''' is one where at the end of the lease, the cost to buy the vehicle is an amount close to the vehicle’s market value. A '''secured lease''', generally speaking, is one where at the end of the lease, the cost to buy the vehicle is very little. Put another way, under a secured lease, you will have paid almost the entire value of the vehicle by the end of the lease. (There are other factors that go in to determining whether a lease is a true lease or a secured lease. It is best to get legal advice on how your lease might be characterized.)

====If the lease is a secured lease and for personal use====
Under the [http://canlii.ca/t/8495 law in BC], two rules kick in to protect you if the lease is a secured lease and the vehicle is used primarily for “personal, family or household purposes”. If you default on the lease, the leasing company can seize the vehicle. Or they can sue you for the amount owing on the lease. But they can’t do both. This is called the “'''seize or sue rule'''”.

The “'''two-thirds rule'''” comes into play if you’ve paid back at least two-thirds of what you owe under a secured lease for personal use. In this case, the creditor needs a court order before seizing the vehicle. If you’ve paid back less than two-thirds, the creditor can seize the vehicle without going to court.

====If the lease is a true lease or for business use====
If the lease is a true lease, things are different. They’re also different if the vehicle is used primarily for business purposes. In either case, if you default on the lease, a creditor may be able to sue you '''and''' seize the vehicle. For more on the law relating to secured debts, see our information on [[Buying Goods on Credit, Credit Cards and Credit Bureaus (Script 246)|buying on credit (no. 246)]].

===Are there other ways the law is different for a business lease?===
When you lease a vehicle for business purposes, you can deduct the lease payments from the business’ income for tax purposes. You don’t typically get a tax deduction for a consumer lease. Check with [http://www.cra-arc.gc.ca/ Canada Revenue Agency] for details.

Several BC laws offer protection when you lease goods for personal use, but not when you lease goods for business use. For example, under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-410/latest/rsbc-1996-c-410.html#sec20_smooth Sale of Goods Act]'', if you lease a new car, a term in the lease agreement waiving the legal warranty implied by law is void — if the lease is for personal use. If the lease is for business purposes, such a waiver is not void.

{| class="wikitable"
|align="left"|'''Tip'''
If you want to lease a vehicle for business purposes, you should get legal and accounting advice — before you lease.
|}

===What happens when a lease ends?===
There are several possible outcomes when a lease ends. You should discuss them before you sign the lease. You may still owe money when the lease ends. The lease may say the vehicle goes back to the dealer, or you may have an option to buy it for a certain price. Whether you owe money depends on the type of lease you signed.

With a '''straight lease''', you return the vehicle and owe nothing more. With a '''closed lease with an option to purchase''', you pay an agreed-on amount if you decide to buy the vehicle. With an '''open lease''' with an option to purchase, you may have to pay an extra amount.

You may also have to pay extra if you drove more than the lease allowed or if the vehicle has more than normal wear. Some dealers may also want to charge other fees at the buy-out time. Before you sign a lease, ask about any fees the dealer will charge at the time of buy-out. Discuss these fees with the dealer and get them in writing — before you sign the lease agreement.

The dealer can use your security deposit to pay for kilometer overages or damage to the vehicle that must be repaired. The lease agreement should address when you get your security deposit back and when the dealer can keep it.

===What if I decide to buy the vehicle at the end of the lease?===
If you buy a vehicle at the end of the lease, it’s a new transaction. The dealer must make all the required declarations about the vehicle as they would on any sale, including the declaration that the vehicle meets the safety requirements of the ''[http://canlii.ca/t/847n Motor Vehicle Act]'' when they sell it. For details of the required declarations, see People’s Law School’s information on [https://www.peopleslawschool.ca/everyday-legal-problems/cars-getting-around/buying-or-repairing-car/buying-used-car-sale buying a used car].

How a dealer ensures a vehicle meets the ''Motor Vehicle Act'' is a business decision — the Act does not say how. Generally, a dealer will do an inspection to ensure a vehicle meets the Act. Depending on the original lease, the dealer may charge you for the inspection. Discuss it with the dealer before you agree to lease a vehicle.

==Get help==

===If you’re concerned about a dealer===
The '''Vehicle Sales Authority of BC''' helps resolve complaints with licensed car dealers. Their website includes a [http://mvsabc.com/consumers/resources/vehicle-buying-guide/ vehicle buying guide] and information about a [http://www.mvsabc.com/consumers/compensation-fund compensation fund] if you lease from a dealer that goes out of business.
:Toll-free: 1-877-294-9889
:Web: [http://www.mvsabc.com/ mvsabc.com]

[updated February 2019]

'''The above was last reviewed for legal accuracy by Ian Christman, Vehicle Sales Authority of BC.'''

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Leasing a Car

2019-03-05T04:36:37Z

Dial-A-Law: /* What can happen if I have trouble paying under a lease? */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = autos}}
Leasing a vehicle is quite different from buying one. Leasing can offer lower monthly payments, but you typically spend more in the long run. Learn your rights if you lease.

==Understand your legal rights==

===How leasing differs from buying===

A '''lease''' is an agreement to rent and use someone else’s property, in this case, a vehicle. A lease can last from several months to several years. At the start of a lease, you make a first (initial) payment. You may also have to pay a security deposit. After that, you make monthly payments.

Leasing is an alternative to buying — both have advantages and disadvantages. If you lease, you don’t own the vehicle. And you have different rights and responsibilities than if you buy.

====Advantages of leasing====
On the surface, leasing can be more appealing than buying. You typically get a newer vehicle. Your monthly lease payments can be much lower than the monthly payments on a car loan. Taxes may be lower because they are based on monthly payments (as opposed to the purchase price).

Many find they can afford a more expensive vehicle, or one with more options, if they lease.

====Disadvantages of leasing====
But there are disadvantages to leasing a vehicle.

One is the dealer owns the vehicle, not you. This means the dealer may place restrictions on who may drive it. You may also have to follow — and pay for — a set maintenance schedule.

And at the end of the lease, you haven’t built up '''equity''' in the vehicle the way you would have if you had bought. At the end of paying off a car loan, you own the vehicle. At the end of a lease, you own nothing.

The result is that leasing typically costs you more than borrowing money to buy a vehicle. For more on buying a vehicle, see our information on [[Buying a Used Car (Script 197)|buying a used car (no. 197)]].

===Types of vehicle leases===

There are two types of vehicle lease.

First, a '''straight lease'''. With this, you return the vehicle when the lease ends and owe nothing more. This is rarely used.

Second, a '''lease with an option to purchase'''. This comes in two forms — open and closed. In a '''closed lease''' with an option to purchase, you pay an agreed-on amount if you decide to buy the vehicle at the end of the lease.

In an '''open lease''' with an option to purchase, you may have to pay an extra amount at the end of the lease. How much more you have to pay is explained in the lease agreement. At the beginning of the lease, a dealer estimates what a vehicle will be worth at the end of the lease (the '''residual value''') and then calculates the monthly payments based on that estimate. If the vehicle is worth less at the end of the lease, you have to pay more to make up the difference. You may also have to pay extra if you drove more than the lease allowed or if the vehicle has more than normal wear.

===What the lease must tell you===
A '''lease agreement''' is a legally binding contract. Make sure you understand it before you sign it. Under the [https://www.canlii.org/en/bc/laws/regu/bc-reg-447-78/latest/bc-reg-447-78.html#sec30_smooth law in BC], the lease agreement must include:
*a summary of costs and credits for any extended warranty
*all express warranties and guarantees made by the manufacturer or dealer
*who is responsible for maintaining and servicing the vehicle
*a description of any insurance, including types and amounts of coverage, that you must provide and pay for
*any limit on your use and enjoyment of the vehicle, including any restriction on who can drive it and any requirement for permission to take the vehicle outside of BC
*the amount of tax in each periodic payment you must make under the agreement
*the cooling-off period (described below)

====The dealer must give you a disclosure statement====
As well, another [https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec101_smooth law in BC] requires the dealer to give you a '''disclosure statement''' before you sign the lease. Read it carefully. It has all the key terms and details of the lease.

====The dealer must tell you if there is a lien on the vehicle====
Another [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-410/latest/rsbc-1996-c-410.html#sec16_smooth BC law] requires a person leasing goods to tell you if there is any '''lien''' or charge on the goods in favour of a third party. A lien is a legal claim made on property — such as a vehicle — to make sure someone pays a debt. Liens are attached to a vehicle, not to its owner. If you lease a vehicle with a lien on it, the lien holder can take the vehicle from you as payment for the debt.

===You can change your mind during the cooling-off period===
You get one business day after you sign the lease to cancel it — this is the '''cooling-off period'''. During this time, the law requires the vehicle to stay with the leasing company. If you change your mind in that time, you can cancel the lease and get your money back without penalty. While you have the whole day to cancel, it’s better to tell the dealer during business hours in writing.

Some days do not count in the cooling-off period. Statutory holidays, Sundays, and any day the dealership is closed do not count. So if you sign a lease on a Saturday, and the dealership is closed on Sunday, Monday is the cooling-off day when you can cancel the contract.

You can '''waive''' (give up) the cooling-off period. If you want to do that, you must do it in writing. Read the lease documents carefully because they may include a waiver.

==Common questions==

===What can happen if I have trouble paying under a lease?===
If you fail to make a payment under a lease, this is called a '''default'''. If you default under the lease, the leasing company may be able to take the vehicle back ('''seize''' it) or sue you for all remaining lease payments. Depending on the lease agreement and the use you put the vehicle to, they may be able to do both.

Key is whether the lease is viewed under the law as a “true lease” or a “secured lease”. Generally, a '''true lease''' is one where at the end of the lease, the cost to buy the vehicle is an amount close to the vehicle’s market value. A '''secured lease''', generally speaking, is one where at the end of the lease, the cost to buy the vehicle is very little. Put another way, under a secured lease, you will have paid almost the entire value of the vehicle by the end of the lease. (There are other factors that go in to determining whether a lease is a true lease or a secured lease. It is best to get legal advice on how your lease might be characterized.)

====If the lease is a secured lease and for personal use====
Under the [http://canlii.ca/t/8495 law in BC], two rules kick in to protect you if the lease is a secured lease and the vehicle is used primarily for “personal, family or household purposes”. If you default on the lease, the leasing company can seize the vehicle. Or they can sue you for the amount owing on the lease. But they can’t do both. This is called the “'''seize or sue rule'''”.

The “'''two-thirds rule'''” comes into play if you’ve paid back at least two-thirds of what you owe under a secured lease for personal use. In this case, the creditor needs a court order before seizing the vehicle. If you’ve paid back less than two-thirds, the creditor can seize the vehicle without going to court.

====If the lease is a true lease or for business use====
If the lease is a true lease, things are different. They’re also different if the vehicle is used primarily for business purposes. In either case, if you default on the lease, a creditor may be able to sue you '''and''' seize the vehicle. For more on the law relating to secured debts, see our information on [[Buying Goods on Credit, Credit Cards and Credit Bureaus (Script 246)|buying on credit (no. 246)]].

===Are there other ways the law is different for a business lease?===
When you lease a vehicle for business purposes, you can deduct the lease payments from the business’ income for tax purposes. You don’t typically get a tax deduction for a consumer lease. Check with [http://www.cra-arc.gc.ca/ Canada Revenue Agency] for details.

Several BC laws offer protection when you lease goods for personal use, but not when you lease goods for business use. For example, under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-410/latest/rsbc-1996-c-410.html#sec20_smooth Sale of Goods Act]'', if you lease a new car, a term in the lease agreement waiving the legal warranty implied by law is void — if the lease is for personal use. If the lease is for business purposes, such a waiver is not void.

{| class="wikitable"
|align="left"|'''Tip'''
If you want to lease a vehicle for business purposes, you should get legal and accounting advice — before you lease.
|}

===What happens when a lease ends?===
There are several possible outcomes when a lease ends. You should discuss them before you sign the lease. You may still owe money when the lease ends. The lease may say the vehicle goes back to the dealer, or you may have an option to buy it for a certain price. Whether you owe money depends on the type of lease you signed.

With a '''straight lease''', you return the vehicle and owe nothing more. With a '''closed lease with an option to purchase''', you pay an agreed-on amount if you decide to buy the vehicle. With an '''open lease''' with an option to purchase, you may have to pay an extra amount.

You may also have to pay extra if you drove more than the lease allowed or if the vehicle has more than normal wear. Some dealers may also want to charge other fees at the buy-out time. Before you sign a lease, ask about any fees the dealer will charge at the time of buy-out. Discuss these fees with the dealer and get them in writing — before you sign the lease agreement.

The dealer can use your security deposit to pay for kilometer overages or damage to the vehicle that must be repaired. The lease agreement should address when you get your security deposit back and when the dealer can keep it.

===What if I decide to buy the vehicle at the end of the lease?===
If you buy a vehicle at the end of the lease, it’s a new transaction. The dealer must make all the required declarations about the vehicle as they would on any sale, including the declaration that the vehicle meets the safety requirements of the ''[http://canlii.ca/t/847n Motor Vehicle Act]'' when they sell it. For details of the required declarations, see People’s Law School’s information on [https://www.peopleslawschool.ca/everyday-legal-problems/cars-getting-around/buying-or-repairing-car/buying-used-car-sale buying a used car].

How a dealer ensures a vehicle meets the ''Motor Vehicle Act'' is a business decision — the Act does not say how. Generally, a dealer will do an inspection to ensure a vehicle meets the Act. Depending on the original lease, the dealer may charge you for the inspection. Discuss it with the dealer before you agree to lease a vehicle.

==Get help==

===If you’re concerned about a dealer===
The '''Vehicle Sales Authority of BC''' helps resolve complaints with licensed car dealers. Their website includes a [http://mvsabc.com/consumers/resources/vehicle-buying-guide/ vehicle buying guide] and information about a [http://www.mvsabc.com/consumers/compensation-fund compensation fund] if you lease from a dealer that goes out of business.
:Toll-free: 1-877-294-9889
:Web: [http://www.mvsabc.com/ mvsabc.com]

[updated June 2018]

'''The above was last reviewed for legal accuracy by Ian Christman, Vehicle Sales Authority of BC.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=auto}}

Children's Rights

2019-03-03T23:42:05Z

Dial-A-Law: /* If they are “in care” */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = rights}}
The legal rights of children vary from those of adults. Learn the rights of children in several contexts, and situations where their views are considered in decisions that affect them.

==The rights of children==

===To consent to their own health care===
Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-223/latest/rsbc-1996-c-223.html#sec17_smooth law in BC], a child under age 19 may consent to their own health care — '''if they are “capable”'''.

The law considers a child capable if they understand the need for the health care, what the care involves, and the consequences (the benefits and risks) of getting the care — or not getting the care.

If a health care provider explains these things to the child and is satisfied the child understands them, and that the health care is in the child’s best interests, they can treat the child if the child consents to the care. The provider does not need the consent of the child’s parents or guardians. The child might have to sign a consent form.

Generally, if a child is capable of consenting to health care, they are also capable of making a decision to refuse health care.

For more on this topic, see our information on [[Children and Consent to Health Care (Script 422)|children and consent to health care (no. 422)]].

====If they are hospitalized against their will for psychiatric treatment====
A child under age 16 can be hospitalized against their will for psychiatric treatment in one of two ways:
*if a parent or guardian requests it and a doctor agrees it’s in the child’s best interest, or
*if the child is admitted as an involuntary patient under the ''[http://canlii.ca/t/846j Mental Health Act]''.

In both cases, the child has the right to be told why they’ve been admitted and the right to contact a lawyer immediately. If they want to leave but their doctor won’t let them, the child can ask for a hearing by a review panel or court.

A child age 16 or older can be admitted against their will for psychiatric treatment only as an involuntary patient. To find out more about involuntary admissions, see our information on [[Hospitalizing a Mentally Ill Person (Script 425)|hospitalizing a mentally ill person (no. 425)]].

===If they are “in care”===
If a child is in the care of the province, or “'''in care'''”, BC’s [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-46/latest/rsbc-1996-c-46.html#sec70_smooth child protection law] gives the child certain rights. They include the right to be consulted and give their views on decisions that affect them. They also include the rights to reasonable privacy, to be free from physical punishment, and to be informed about (and helped to contact) the Ombudsperson and the Representative for Children and Youth. (We give contact details for these two offices shortly.)

“In care” means a child is in the custody, care or guardianship of the child welfare or adoption authorities. “Care” means physical care and control. If a child is removed from their home by the child welfare authorities, the authorities have care of the child until the child is returned to their parents or a court makes an order. If a child is in care, the child’s worker, other people important to the child, and the child meet and develop a care plan for the child.

For more information, see the publication ''[http://www2.gov.bc.ca/assets/gov/family-and-social-supports/foster-parenting/know_your_rights.pdf Know Your Rights: A Guide to Rights for Young People in Care]'', published by the Ministry of Children and Family Development. Also, the Ministry website includes a section for [http://www2.gov.bc.ca/gov/content/family-social-supports/youth-and-family-services/teens-in-foster-care if you’re a teen in foster care].

===If they are charged with a crime===
The ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]'' explains how police, courts, and the correctional system must treat young people age 12 to 17 who are arrested for, charged with, or convicted of a crime under federal laws.

The most important federal criminal law is the ''[http://canlii.ca/t/7vf2 Criminal Code]''. It covers common crimes like shoplifting, breaking and entering, car theft, and assault. Other federal laws deal with things like possessing and selling (or trafficking) illegal drugs.

Provincial laws cover many other crimes, such as drinking under age, trespassing, and breaking traffic laws.

A young person who is stopped and questioned by the police has the right to remain silent. If a young person is arrested or detained, they have the right to legal advice. If they are charged with a federal crime, they have the right to a lawyer to represent them. For more on the rights of young people charged with a crime, see our information on [[Young People and Criminal Law (Script 225)|young people and criminal law (no. 225)]] and [[Youth Justice Court Trials (Script 226)|trials involving young people (no. 226)]].

==Common questions==

===What kind of input can children have on things that affect them?===
Under many laws, the views of a child must be considered in making decisions affecting them. Some laws require the child’s approval.

Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec37_smooth Family Law Act]'', in making an agreement or order about guardianship, parenting arrangements, or contact with a child, the parties and the court must consider the best interests of the child only. The law lists the '''child’s views''' as one factor that must be considered in determining their best interests, unless it would be inappropriate to consider them. Both the age and maturity of a child are important when a court considers a child’s views.

If a person other than a child’s parent applies to court for an order appointing them as the child’s guardian, the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth Family Law Act]'' requires the '''child’s written approval''' (if they’re age 12 or older). The approval is not required if the court is satisfied the appointment is in the best interests of the child.

Under BC’s [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-46/latest/rsbc-1996-c-46.html#sec70_smooth child protection law], a child in care of the province has a '''right to be consulted and to express their views''', according to their abilities, about significant decisions affecting them. If the child is age 12 or older, any consent court order must have the child’s consent.

Under BC’s [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-5/latest/rsbc-1996-c-5.html#sec13_smooth adoption law], if a child is age 12 or older, their consent to being adopted is required. The views of a child between seven and 11 must be considered.

===When a family breaks up, can children choose which parent to live with?===
Children do not generally get to choose which parent they live with if their parents separate or divorce, but they can express their views. The parents can agree on parenting arrangements, including where their children will live, how much time the children will spend with each parent, and how decisions about them will be made. To help them make these decisions, the parents may talk to the children, social workers, lawyers, counsellors, or other professionals. If the parents make an agreement their children are not happy with, the children can talk to the parents about it. But it’s still the parents’ decision.

If the parents can’t agree, a court may have to decide who the children live with. Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec37_smooth Family Law Act]'', the parties and the court must consider the best interests of the child only. The law lists a number of factors that must be considered, including the child’s views, unless it would be inappropriate to consider them. Both the age and maturity of a child are important when a court considers a child’s views. A court often assesses a child’s maturity by examining how the child behaves at home and at school.

===Can children access money held in trust for them by the Public Guardian and Trustee?===
It depends on the situation. BC’s Public Guardian and Trustee oversees the legal rights and financial interests of children under age 19. The Public Guardian and Trustee holds money that children receive in the following types of cases — if another trustee is not appointed:
*an injury award after an accident
*an inheritance
*life insurance proceeds
*part of the money that a child under 15 makes from acting in TV or films

The Public Guardian and Trustee pays all a child’s money (with interest) to the child when they turn 19. The Public Guardian and Trustee may also use some of a child’s money — before the child is 19 — to pay for things a child or their family cannot afford, such as school fees, tutoring, camps and trips, transportation, computers, and dental needs.

For more information, check with the Public Guardian and Trustee. Visit [http://www.trustee.bc.ca trustee.bc.ca] or call 604-660-4444.

==Get help==

===For children===
Children who would like to talk to someone can call the '''Helpline for Children'''. This confidential service operates at any time of the day or night.
:Toll-free: 310-1234

===For children and families===
A child receiving services from the '''Ministry of Children and Family Development''' (or their family member or caregiver) who disagrees with something the ministry did or decided, has a right to complain and be taken seriously. The ministry website provides information on [https://www2.gov.bc.ca/gov/content/family-social-supports/data-monitoring-quality-assurance/child-family-service-complaints?keyword=complaints&keyword=process how to make a complaint].
:Web: [http://www.gov.bc.ca/mcf/ gov.bc.ca/mcf]

The '''Provincial Ombudsperson''' responds to complaints about ministries, schools and other provincial authorities that affect children and youth.
:Toll-free: 1-800-567-3247
:Web: [https://bcombudsperson.ca bcombudsperson.ca]

The '''Representative for Children and Youth''' supports children and families who need help dealing with the child welfare system. The Representative does not work for government, but is an independent officer of the BC legislature. They also suggest changes to the system.
:Toll-free: 1-800-476-3933
:Web: [http://www.rcybc.ca/ rcybc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://rcybc.ca/about-us/staff/jeff-rud Jeff Rud], Office of the Representative for Children & Youth, [http://dir.gov.bc.ca/gtds.cgi?esearch=&updateRequest=&view=detailed&sortBy=name&for=people&attribute=display+name&matchMethod=is&searchString=Shannan+Knutson&objectId=140748 Shannan Knutson], Ministry of Attorney General, and [http://dir.gov.bc.ca/gtds.cgi?esearch=&updateRequest=&view=detailed&sortBy=name&for=people&attribute=display+name&matchMethod=is&searchString=Heidi+Sarrazin&objectId=162669 Heidi Sarrazin] and [http://dir.gov.bc.ca/gtds.cgi?esearch=&view=detailed&sortBy=name&for=people&attribute=name&matchMethod=is&searchString=Leslie+Anderson&objectId=145884 Leslie Anderson], Ministry of Children and Family Development.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

Children's Rights

2019-03-03T23:40:18Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = rights}}
The legal rights of children vary from those of adults. Learn the rights of children in several contexts, and situations where their views are considered in decisions that affect them.

==The rights of children==

===To consent to their own health care===
Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-223/latest/rsbc-1996-c-223.html#sec17_smooth law in BC], a child under age 19 may consent to their own health care — '''if they are “capable”'''.

The law considers a child capable if they understand the need for the health care, what the care involves, and the consequences (the benefits and risks) of getting the care — or not getting the care.

If a health care provider explains these things to the child and is satisfied the child understands them, and that the health care is in the child’s best interests, they can treat the child if the child consents to the care. The provider does not need the consent of the child’s parents or guardians. The child might have to sign a consent form.

Generally, if a child is capable of consenting to health care, they are also capable of making a decision to refuse health care.

For more on this topic, see our information on [[Children and Consent to Health Care (Script 422)|children and consent to health care (no. 422)]].

====If they are hospitalized against their will for psychiatric treatment====
A child under age 16 can be hospitalized against their will for psychiatric treatment in one of two ways:
*if a parent or guardian requests it and a doctor agrees it’s in the child’s best interest, or
*if the child is admitted as an involuntary patient under the ''[http://canlii.ca/t/846j Mental Health Act]''.

In both cases, the child has the right to be told why they’ve been admitted and the right to contact a lawyer immediately. If they want to leave but their doctor won’t let them, the child can ask for a hearing by a review panel or court.

A child age 16 or older can be admitted against their will for psychiatric treatment only as an involuntary patient. To find out more about involuntary admissions, see our information on [[Hospitalizing a Mentally Ill Person (Script 425)|hospitalizing a mentally ill person (no. 425)]].

===If they are “in care”===
If a child is in the care of the province, or “'''in care'''”, BC’s [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-46/latest/rsbc-1996-c-46.html#sec70_smooth child protection law] gives the child certain rights. They include the right to be consulted and give their views on decisions that affect them. They also include the rights to reasonable privacy, to be free from physical punishment, and to be informed about (and helped to contact) the Ombudsperson and the Representative for Children and Youth. (We give contact details for these two offices shortly.)

“In care” means a child is in the custody, care or guardianship of the child welfare or adoption authorities. “Care” means physical care and control. If a child is removed from their home by the child welfare authorities, the authorities have care of the child until the child is returned to their parents or a court makes an order. If a child is in care, the child’s worker, other people important to the child, and the child meet and develop a care plan for the child.

For more information, see the publication ''[http://www2.gov.bc.ca/assets/gov/family-and-social-supports/foster-parenting/know_your_rights.pdf Know Your Rights: A Guide to Rights for Young People in Care], published by the Ministry of Children and Family Development. Also, the Ministry website includes a section for [http://www2.gov.bc.ca/gov/content/family-social-supports/youth-and-family-services/teens-in-foster-care if you’re a teen in foster care].

===If they are charged with a crime===
The ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]'' explains how police, courts, and the correctional system must treat young people age 12 to 17 who are arrested for, charged with, or convicted of a crime under federal laws.

The most important federal criminal law is the ''[http://canlii.ca/t/7vf2 Criminal Code]''. It covers common crimes like shoplifting, breaking and entering, car theft, and assault. Other federal laws deal with things like possessing and selling (or trafficking) illegal drugs.

Provincial laws cover many other crimes, such as drinking under age, trespassing, and breaking traffic laws.

A young person who is stopped and questioned by the police has the right to remain silent. If a young person is arrested or detained, they have the right to legal advice. If they are charged with a federal crime, they have the right to a lawyer to represent them. For more on the rights of young people charged with a crime, see our information on [[Young People and Criminal Law (Script 225)|young people and criminal law (no. 225)]] and [[Youth Justice Court Trials (Script 226)|trials involving young people (no. 226)]].

==Common questions==

===What kind of input can children have on things that affect them?===
Under many laws, the views of a child must be considered in making decisions affecting them. Some laws require the child’s approval.

Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec37_smooth Family Law Act]'', in making an agreement or order about guardianship, parenting arrangements, or contact with a child, the parties and the court must consider the best interests of the child only. The law lists the '''child’s views''' as one factor that must be considered in determining their best interests, unless it would be inappropriate to consider them. Both the age and maturity of a child are important when a court considers a child’s views.

If a person other than a child’s parent applies to court for an order appointing them as the child’s guardian, the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth Family Law Act]'' requires the '''child’s written approval''' (if they’re age 12 or older). The approval is not required if the court is satisfied the appointment is in the best interests of the child.

Under BC’s [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-46/latest/rsbc-1996-c-46.html#sec70_smooth child protection law], a child in care of the province has a '''right to be consulted and to express their views''', according to their abilities, about significant decisions affecting them. If the child is age 12 or older, any consent court order must have the child’s consent.

Under BC’s [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-5/latest/rsbc-1996-c-5.html#sec13_smooth adoption law], if a child is age 12 or older, their consent to being adopted is required. The views of a child between seven and 11 must be considered.

===When a family breaks up, can children choose which parent to live with?===
Children do not generally get to choose which parent they live with if their parents separate or divorce, but they can express their views. The parents can agree on parenting arrangements, including where their children will live, how much time the children will spend with each parent, and how decisions about them will be made. To help them make these decisions, the parents may talk to the children, social workers, lawyers, counsellors, or other professionals. If the parents make an agreement their children are not happy with, the children can talk to the parents about it. But it’s still the parents’ decision.

If the parents can’t agree, a court may have to decide who the children live with. Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec37_smooth Family Law Act]'', the parties and the court must consider the best interests of the child only. The law lists a number of factors that must be considered, including the child’s views, unless it would be inappropriate to consider them. Both the age and maturity of a child are important when a court considers a child’s views. A court often assesses a child’s maturity by examining how the child behaves at home and at school.

===Can children access money held in trust for them by the Public Guardian and Trustee?===
It depends on the situation. BC’s Public Guardian and Trustee oversees the legal rights and financial interests of children under age 19. The Public Guardian and Trustee holds money that children receive in the following types of cases — if another trustee is not appointed:
*an injury award after an accident
*an inheritance
*life insurance proceeds
*part of the money that a child under 15 makes from acting in TV or films

The Public Guardian and Trustee pays all a child’s money (with interest) to the child when they turn 19. The Public Guardian and Trustee may also use some of a child’s money — before the child is 19 — to pay for things a child or their family cannot afford, such as school fees, tutoring, camps and trips, transportation, computers, and dental needs.

For more information, check with the Public Guardian and Trustee. Visit [http://www.trustee.bc.ca trustee.bc.ca] or call 604-660-4444.

==Get help==

===For children===
Children who would like to talk to someone can call the '''Helpline for Children'''. This confidential service operates at any time of the day or night.
:Toll-free: 310-1234

===For children and families===
A child receiving services from the '''Ministry of Children and Family Development''' (or their family member or caregiver) who disagrees with something the ministry did or decided, has a right to complain and be taken seriously. The ministry website provides information on [https://www2.gov.bc.ca/gov/content/family-social-supports/data-monitoring-quality-assurance/child-family-service-complaints?keyword=complaints&keyword=process how to make a complaint].
:Web: [http://www.gov.bc.ca/mcf/ gov.bc.ca/mcf]

The '''Provincial Ombudsperson''' responds to complaints about ministries, schools and other provincial authorities that affect children and youth.
:Toll-free: 1-800-567-3247
:Web: [https://bcombudsperson.ca bcombudsperson.ca]

The '''Representative for Children and Youth''' supports children and families who need help dealing with the child welfare system. The Representative does not work for government, but is an independent officer of the BC legislature. They also suggest changes to the system.
:Toll-free: 1-800-476-3933
:Web: [http://www.rcybc.ca/ rcybc.ca]

[updated July 2018]

'''The above was last reviewed for legal accuracy by [https://rcybc.ca/about-us/staff/jeff-rud Jeff Rud], Office of the Representative for Children & Youth, [http://dir.gov.bc.ca/gtds.cgi?esearch=&updateRequest=&view=detailed&sortBy=name&for=people&attribute=display+name&matchMethod=is&searchString=Shannan+Knutson&objectId=140748 Shannan Knutson], Ministry of Attorney General, and [http://dir.gov.bc.ca/gtds.cgi?esearch=&updateRequest=&view=detailed&sortBy=name&for=people&attribute=display+name&matchMethod=is&searchString=Heidi+Sarrazin&objectId=162669 Heidi Sarrazin] and [http://dir.gov.bc.ca/gtds.cgi?esearch=&view=detailed&sortBy=name&for=people&attribute=name&matchMethod=is&searchString=Leslie+Anderson&objectId=145884 Leslie Anderson], Ministry of Children and Family Development.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

Aboriginal Law

2019-03-03T23:22:23Z

Dial-A-Law: /* The Charter and the Constitution */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = rights}}
The legal position of Aboriginal people in British Columbia involves an interplay of federal and provincial law, plus treaty and other rights. Learn the basics of Aboriginal law in BC.

==Understand the legal framework==

===Who is an Aboriginal person and why this matters===
Section 35 of the ''[https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec35_smooth Constitution Act]'', 1982 recognizes three groups of Aboriginal peoples — '''Indians''', '''Inuit''', and '''Métis''' peoples.

====Indians====
Under the ''[http://canlii.ca/t/7vhk Indian Act]'', the term '''Indian''' means a person registered with the federal government as an Indian (a “status Indian”) or who is entitled to be registered as an Indian. A person must apply for Indian status and show they have a right to be registered based on the ''Indian Act''. (Apart from this law, the word Indian is no longer used to describe Aboriginal people.)

====Inuit====
'''Inuit''' are Indigenous people of the Arctic. They deal with both the federal government and provincial government (as Indians do), depending on the subject. But the ''Indian Act'' does not apply to Inuit. Most Inuit are now participants in modern treaty and land claims agreements that govern their unique interests. There are relatively few Inuit in British Columbia, so this information does not cover the specific laws that apply to Inuit people.

====Métis====
'''Métis''' are people of mixed Aboriginal and non-Aboriginal ancestry. Their precise legal definition is not certain. The Supreme Court of Canada, in a case called ''R v. Powley'', outlined three broad factors to identify Métis rights-holders:
*self-identification as a Métis person,
*ancestral connection to an historic Métis community, and
*acceptance by a Métis community.

The court said that Métis does not include all people with mixed Indian and European heritage. It refers to people with mixed heritage who have also developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European ancestors.

===How the term “First Nations” fits in===
'''First Nations''' is a term for Indigenous people of Canada who are not Inuit or Métis. The term includes both status and non-status Indians.

Many First Nations are self-governing and control their own affairs. But if a First Nations community is still governed by the ''Indian Act'', it is called a '''band'''. Indian status does not necessarily include band membership. Band membership depends on who controls the band’s membership list: the federal government or the band. Only the federal government can decide on status.

===What is unique about the legal position of Aboriginal people in BC===
Aboriginal people deal with both the federal and provincial governments, depending on the subject. For example, land and criminal law involve the federal government, while health care and family law involve the BC provincial government. Laws on tax and wills and estates involve both governments.

Lands held by the federal government for the use and benefit of Indians are called '''reserves'''. Status Indians may receive rights and benefits for housing. They may also receive tax exemptions when working on reserves. Other benefits, such as health and education, may be available both on reserve and off reserve.

Most provincial laws apply to Aboriginal people. Some provincial laws do not apply to Aboriginal people or reserve land; others apply through section 88 of the ''Indian Act''. As well, some Aboriginal people have signed treaties and land claims agreements that set out rights and responsibilities that may operate independently of the ''Indian Act''. In other words, the legal position of Aboriginal people in BC involves a complex interplay of federal and provincial law, plus treaty and other rights.

===How criminal law applies to Aboriginal people===
Canada’s ''[http://canlii.ca/t/7vf2 Criminal Code]'' applies to all Aboriginal people. The ''Criminal Code'' tells judges to consider all reasonable alternatives to imprisonment, with particular attention to Aboriginal offenders. This is Parliament’s response to the fact that Aboriginal people are overrepresented in Canadian prisons.

====Gladue rights====
Aboriginal people often experience disproportionate social problems throughout their lives. Judges must consider what are called '''Gladue principles''' when they sentence an Aboriginal offender (named after a 1999 Supreme Court of Canada case). Gladue principles apply when an Aboriginal person’s freedom is at risk, including bail and sentencing hearings. Gladue principles also apply to sentencing in appeals, parole hearings, Mental Health Review Board hearings, dangerous and long-term offender hearings, and civil contempt decisions.

====Support for Aboriginal people in criminal matters====
Some courthouses have a '''native courtworker''' who can help Aboriginal people understand the court process, find a lawyer, and apply for legal aid. Aboriginal people who are convicted of an offence should ensure their lawyer knows about their ancestry, so they can ensure Gladue factors are raised before sentencing, such as in a Gladue report or Gladue submissions. Many communities have culturally appropriate restorative justice programs. Native courtworkers and lawyers should make best efforts to locate these programs to help their clients. See the publications ''[http://www.legalaid.bc.ca/publications/pub.php?pub=488 Your Gladue Rights]'' and ''[http://www.legalaid.bc.ca/publications/pub.php?pub=487 Gladue Rights at Bail and Sentencing]'' from the Legal Services Society for more information.

====First Nations Court====
Aboriginal people in BC who plead guilty to a crime and accept responsibility for their actions can apply to have their bail and sentencing hearings in '''First Nations Court'''. This is a criminal sentencing court that uses restorative justice and traditional ways to reach balance and healing. There may be limitations on the types of cases heard in First Nations Court. First Nations Court sits in selected communities. They are usually held once a month at each location. The Provincial Court of BC website has information about [http://www.provincialcourt.bc.ca/about-the-court/specialized-courts#FirstNationsCourt First Nations Court]. The Legal Services Society factsheet “[http://www.mylawbc.com/pubs/pub.php?pub=489 What’s First Nations Court?]” also has more information.

===How family law applies to Aboriginal people===
Two BC laws dealing with families and children apply to Aboriginal families on reserve and off reserve. But there are some important exceptions.

====Family breakdown====
The ''[http://canlii.ca/t/8q3k Family Law Act]'' deals with parenting arrangements, child and spousal support, and division of property after family breakdown. But the parts of this law dealing with real property do not apply on reserves. So there is a gap in the law dealing with the ownership and division of real property on reserves and what happens when a spousal relationship ends, or a spouse dies.

The federal ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]'', new in 2013, responds to this gap in two ways. First, it allows individual First Nations to make their own matrimonial real property laws. First Nations that have done this are listed on the [http://www.aadnc-aandc.gc.ca/eng/1408981855429/1408981949311 federal government website]. Second, the federal law has provisional (or temporary) rules that apply until First Nations make their own laws. If you live on reserve, and you need an order — especially an emergency order to protect yourself, your property, or your family — get legal advice.

====Child protection laws====
The ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'' deals with child protection on or off reserve. Some First Nations have their own child protection agencies with authority from the province. They are called [https://www2.gov.bc.ca/gov/content/family-social-supports/data-monitoring-quality-assurance/reporting-monitoring/accountability/delegated-aboriginal-agencies Delegated Aboriginal Agencies].

====Best interests of the child====
The key principles guiding all family laws are the best interests of the child plus protection and safety of the child. To decide on an Aboriginal child’s best interests and safety, courts look at the child’s community, extended family, and culture, heritage, and tradition. They consider those factors in trying to preserve the cultural identity of Aboriginal children.

===How tax law differs for status Indians===
Many people mistakenly think status Indians do not pay income tax, GST, or property tax. But most status Indians pay tax unless they are exempt under sections 87 and 90 of the ''Indian Act''. Under these sections, status Indians do not pay federal or provincial taxes on their personal and real property on a reserve. Personal property includes employment income earned on reserve. Income earned by Métis and Inuit is not eligible for this exemption. And income earned by status Indians off reserve is taxable.

Canadian courts have developed a series of “'''connecting factors'''” that must link a status Indian’s employment and investment income to the reserve for the income to be tax exempt. Because of the high levels of unemployment on most Indian reserves, these tax benefits are not as significant as some people think.

Like other levels of government, Indian bands can make property tax bylaws for people and businesses on reserves, under section 83 of the ''Indian Act''. Some Indian bands have a First Nations’ Tax (FNT) instead of GST. It can apply to alcohol, fuel and tobacco sold on reserve.

Finally, modern treaties and land claims agreements cover all aspects of taxation.

===How living on reserve affects wills and estates===
Indigenous Services Canada deals with the wills and estates of status Indians who are “'''ordinarily resident'''” on reserve when they die. The federal government department is responsible for several things. These include granting probate (deciding if a will is legally valid and then granting approval of it to the executor), appointing an administrator or executor to distribute the estate, and responding to anyone who challenges a will or complains about an administrator or executor.

The ''Indian Act'' has rules for transferring a person’s reserve property to heirs and beneficiaries. Indigenous Services Canada must approve all transfers of reserve property. A person who is not a member of the dead person’s band may not be able to inherit the person’s house or land on a reserve.

The BC Supreme Court deals with the wills and estates of status Indians not “ordinarily resident” on reserve when they die, and with all non-status Indians and other Aboriginal people. The BC Public Guardian and Trustee is also sometimes involved with these cases.

A will that is valid under the ''Indian Act'' may not be valid under BC provincial law because some parts, such as the requirement for a witness’s signature, may differ. So even a status Indian ordinarily resident on reserve should make sure a will meets the BC rules and the ''Indian Act''. Our information on [[Making a Will and Estate Planning (Script 176)|preparing a will (no. 176)]] covers the requirements for a will. The Indigenous Services Canada estates program has more information. Call 604-775-5100 in Vancouver and 1-888-917-9977 elsewhere in BC.

The federal ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]'' also affects wills and estates on reserves. This area of law is complex, so if you are in this situation, get legal advice.

===Human rights and Aboriginal people in BC===

====The Charter and the Constitution====
The ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' applies to every person in Canada, including Aboriginal people. The Charter applies to laws and government actions, or the actions of agencies very closely connected to government, such as school boards and labour relations boards. The Charter normally applies to band councils and other Aboriginal governments, but not always. See our information on [[Charter of Rights and Freedoms: Overview (Script 230)|the Charter (no. 230)]] for an overview of rights under the Charter.

Section 35 of the ''[https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec35_smooth Constitution Act, 1982]'' gives constitutional protection to existing Aboriginal and treaty rights and to rights acquired through treaty and land claim negotiations. Since 1982, there have been extensive developments in the case law on identifying and defining Aboriginal and treaty rights and how they fit with Canadian society. So far, Aboriginal rights relate mainly to the use of natural resources and Aboriginal governance.

====Human rights law====
The ''[http://canlii.ca/t/7vh5 Canadian Human Rights Act]'' applies to the federal government and businesses that it regulates, such as airlines and banks. The Act applies to federal or band government decisions made under the ''Indian Act''. The [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] investigates complaints of discrimination and other violations of this law.

The BC ''[http://canlii.ca/t/843q Human Rights Code]'' applies to the provincial government and businesses it regulates. It prohibits discrimination by schools, stores, restaurants, and rental properties. For more details, see our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]].

Some Aboriginal people have relied on international human rights law to have their rights recognized, such as the ''[http://www.ohchr.org/EN/Library/Pages/UDHR.aspx Universal Declaration of Human Rights]''.

Deciding which human rights laws apply to cases involving Aboriginal people can be a complicated legal question. You should get legal advice about which laws apply to specific situations.

==Get help==

===With more information===
'''Indigenous Services Canada''' is the federal government department supporting access to services for First Nations, Inuit and Métis.
:Web: [https://www.canada.ca/indigenous canada.ca/indigenous]

The '''Aboriginal Legal Aid in BC''' website from Legal Services Society provides information and [http://www.aboriginal.legalaid.bc.ca/pubs/ publications] on issues important to Aboriginal people, and information about the help that legal aid and other groups can give.
:Web: [https://aboriginal.legalaid.bc.ca aboriginal.legalaid.bc.ca]

Confirm the status of individual First Nations in treaty negotiations with the '''BC Treaty Commission'''.
:Web: [http://www.bctreaty.ca bctreaty.ca]

[updated March 2018]

'''The above was last reviewed for legal accuracy by Rhaea Bailey, Legal Services Society.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

Aboriginal Law

2019-03-03T23:17:25Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = rights}}
The legal position of Aboriginal people in British Columbia involves an interplay of federal and provincial law, plus treaty and other rights. Learn the basics of Aboriginal law in BC.

==Understand the legal framework==

===Who is an Aboriginal person and why this matters===
Section 35 of the ''[https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec35_smooth Constitution Act]'', 1982 recognizes three groups of Aboriginal peoples — '''Indians''', '''Inuit''', and '''Métis''' peoples.

====Indians====
Under the ''[http://canlii.ca/t/7vhk Indian Act]'', the term '''Indian''' means a person registered with the federal government as an Indian (a “status Indian”) or who is entitled to be registered as an Indian. A person must apply for Indian status and show they have a right to be registered based on the ''Indian Act''. (Apart from this law, the word Indian is no longer used to describe Aboriginal people.)

====Inuit====
'''Inuit''' are Indigenous people of the Arctic. They deal with both the federal government and provincial government (as Indians do), depending on the subject. But the ''Indian Act'' does not apply to Inuit. Most Inuit are now participants in modern treaty and land claims agreements that govern their unique interests. There are relatively few Inuit in British Columbia, so this information does not cover the specific laws that apply to Inuit people.

====Métis====
'''Métis''' are people of mixed Aboriginal and non-Aboriginal ancestry. Their precise legal definition is not certain. The Supreme Court of Canada, in a case called ''R v. Powley'', outlined three broad factors to identify Métis rights-holders:
*self-identification as a Métis person,
*ancestral connection to an historic Métis community, and
*acceptance by a Métis community.

The court said that Métis does not include all people with mixed Indian and European heritage. It refers to people with mixed heritage who have also developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European ancestors.

===How the term “First Nations” fits in===
'''First Nations''' is a term for Indigenous people of Canada who are not Inuit or Métis. The term includes both status and non-status Indians.

Many First Nations are self-governing and control their own affairs. But if a First Nations community is still governed by the ''Indian Act'', it is called a '''band'''. Indian status does not necessarily include band membership. Band membership depends on who controls the band’s membership list: the federal government or the band. Only the federal government can decide on status.

===What is unique about the legal position of Aboriginal people in BC===
Aboriginal people deal with both the federal and provincial governments, depending on the subject. For example, land and criminal law involve the federal government, while health care and family law involve the BC provincial government. Laws on tax and wills and estates involve both governments.

Lands held by the federal government for the use and benefit of Indians are called '''reserves'''. Status Indians may receive rights and benefits for housing. They may also receive tax exemptions when working on reserves. Other benefits, such as health and education, may be available both on reserve and off reserve.

Most provincial laws apply to Aboriginal people. Some provincial laws do not apply to Aboriginal people or reserve land; others apply through section 88 of the ''Indian Act''. As well, some Aboriginal people have signed treaties and land claims agreements that set out rights and responsibilities that may operate independently of the ''Indian Act''. In other words, the legal position of Aboriginal people in BC involves a complex interplay of federal and provincial law, plus treaty and other rights.

===How criminal law applies to Aboriginal people===
Canada’s ''[http://canlii.ca/t/7vf2 Criminal Code]'' applies to all Aboriginal people. The ''Criminal Code'' tells judges to consider all reasonable alternatives to imprisonment, with particular attention to Aboriginal offenders. This is Parliament’s response to the fact that Aboriginal people are overrepresented in Canadian prisons.

====Gladue rights====
Aboriginal people often experience disproportionate social problems throughout their lives. Judges must consider what are called '''Gladue principles''' when they sentence an Aboriginal offender (named after a 1999 Supreme Court of Canada case). Gladue principles apply when an Aboriginal person’s freedom is at risk, including bail and sentencing hearings. Gladue principles also apply to sentencing in appeals, parole hearings, Mental Health Review Board hearings, dangerous and long-term offender hearings, and civil contempt decisions.

====Support for Aboriginal people in criminal matters====
Some courthouses have a '''native courtworker''' who can help Aboriginal people understand the court process, find a lawyer, and apply for legal aid. Aboriginal people who are convicted of an offence should ensure their lawyer knows about their ancestry, so they can ensure Gladue factors are raised before sentencing, such as in a Gladue report or Gladue submissions. Many communities have culturally appropriate restorative justice programs. Native courtworkers and lawyers should make best efforts to locate these programs to help their clients. See the publications ''[http://www.legalaid.bc.ca/publications/pub.php?pub=488 Your Gladue Rights]'' and ''[http://www.legalaid.bc.ca/publications/pub.php?pub=487 Gladue Rights at Bail and Sentencing]'' from the Legal Services Society for more information.

====First Nations Court====
Aboriginal people in BC who plead guilty to a crime and accept responsibility for their actions can apply to have their bail and sentencing hearings in '''First Nations Court'''. This is a criminal sentencing court that uses restorative justice and traditional ways to reach balance and healing. There may be limitations on the types of cases heard in First Nations Court. First Nations Court sits in selected communities. They are usually held once a month at each location. The Provincial Court of BC website has information about [http://www.provincialcourt.bc.ca/about-the-court/specialized-courts#FirstNationsCourt First Nations Court]. The Legal Services Society factsheet “[http://www.mylawbc.com/pubs/pub.php?pub=489 What’s First Nations Court?]” also has more information.

===How family law applies to Aboriginal people===
Two BC laws dealing with families and children apply to Aboriginal families on reserve and off reserve. But there are some important exceptions.

====Family breakdown====
The ''[http://canlii.ca/t/8q3k Family Law Act]'' deals with parenting arrangements, child and spousal support, and division of property after family breakdown. But the parts of this law dealing with real property do not apply on reserves. So there is a gap in the law dealing with the ownership and division of real property on reserves and what happens when a spousal relationship ends, or a spouse dies.

The federal ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]'', new in 2013, responds to this gap in two ways. First, it allows individual First Nations to make their own matrimonial real property laws. First Nations that have done this are listed on the [http://www.aadnc-aandc.gc.ca/eng/1408981855429/1408981949311 federal government website]. Second, the federal law has provisional (or temporary) rules that apply until First Nations make their own laws. If you live on reserve, and you need an order — especially an emergency order to protect yourself, your property, or your family — get legal advice.

====Child protection laws====
The ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'' deals with child protection on or off reserve. Some First Nations have their own child protection agencies with authority from the province. They are called [https://www2.gov.bc.ca/gov/content/family-social-supports/data-monitoring-quality-assurance/reporting-monitoring/accountability/delegated-aboriginal-agencies Delegated Aboriginal Agencies].

====Best interests of the child====
The key principles guiding all family laws are the best interests of the child plus protection and safety of the child. To decide on an Aboriginal child’s best interests and safety, courts look at the child’s community, extended family, and culture, heritage, and tradition. They consider those factors in trying to preserve the cultural identity of Aboriginal children.

===How tax law differs for status Indians===
Many people mistakenly think status Indians do not pay income tax, GST, or property tax. But most status Indians pay tax unless they are exempt under sections 87 and 90 of the ''Indian Act''. Under these sections, status Indians do not pay federal or provincial taxes on their personal and real property on a reserve. Personal property includes employment income earned on reserve. Income earned by Métis and Inuit is not eligible for this exemption. And income earned by status Indians off reserve is taxable.

Canadian courts have developed a series of “'''connecting factors'''” that must link a status Indian’s employment and investment income to the reserve for the income to be tax exempt. Because of the high levels of unemployment on most Indian reserves, these tax benefits are not as significant as some people think.

Like other levels of government, Indian bands can make property tax bylaws for people and businesses on reserves, under section 83 of the ''Indian Act''. Some Indian bands have a First Nations’ Tax (FNT) instead of GST. It can apply to alcohol, fuel and tobacco sold on reserve.

Finally, modern treaties and land claims agreements cover all aspects of taxation.

===How living on reserve affects wills and estates===
Indigenous Services Canada deals with the wills and estates of status Indians who are “'''ordinarily resident'''” on reserve when they die. The federal government department is responsible for several things. These include granting probate (deciding if a will is legally valid and then granting approval of it to the executor), appointing an administrator or executor to distribute the estate, and responding to anyone who challenges a will or complains about an administrator or executor.

The ''Indian Act'' has rules for transferring a person’s reserve property to heirs and beneficiaries. Indigenous Services Canada must approve all transfers of reserve property. A person who is not a member of the dead person’s band may not be able to inherit the person’s house or land on a reserve.

The BC Supreme Court deals with the wills and estates of status Indians not “ordinarily resident” on reserve when they die, and with all non-status Indians and other Aboriginal people. The BC Public Guardian and Trustee is also sometimes involved with these cases.

A will that is valid under the ''Indian Act'' may not be valid under BC provincial law because some parts, such as the requirement for a witness’s signature, may differ. So even a status Indian ordinarily resident on reserve should make sure a will meets the BC rules and the ''Indian Act''. Our information on [[Making a Will and Estate Planning (Script 176)|preparing a will (no. 176)]] covers the requirements for a will. The Indigenous Services Canada estates program has more information. Call 604-775-5100 in Vancouver and 1-888-917-9977 elsewhere in BC.

The federal ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]'' also affects wills and estates on reserves. This area of law is complex, so if you are in this situation, get legal advice.

===Human rights and Aboriginal people in BC===

====The Charter and the Constitution====
The ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' applies to every person in Canada, including Aboriginal people. The Charter applies to laws and government actions, or the actions of agencies very closely connected to government, such as school boards and labour relations boards. The Charter normally applies to band councils and other Aboriginal governments, but not always. See our information on [[Charter of Rights and Freedoms: Overview (Script 230)|the Charter (no. 230)]] for an overview of rights under the Charter.

Section 35 of the ''[https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec35_smooth Constitution Act]'', 1982 gives constitutional protection to existing Aboriginal and treaty rights and to rights acquired through treaty and land claim negotiations. Since 1982, there have been extensive developments in the case law on identifying and defining Aboriginal and treaty rights and how they fit with Canadian society. So far, Aboriginal rights relate mainly to the use of natural resources and Aboriginal governance.

====Human rights law====
The ''[http://canlii.ca/t/7vh5 Canadian Human Rights Act]'' applies to the federal government and businesses that it regulates, such as airlines and banks. The Act applies to federal or band government decisions made under the ''Indian Act''. The [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] investigates complaints of discrimination and other violations of this law.

The BC ''[http://canlii.ca/t/843q Human Rights Code]'' applies to the provincial government and businesses it regulates. It prohibits discrimination by schools, stores, restaurants, and rental properties. For more details, see our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]].

Some Aboriginal people have relied on international human rights law to have their rights recognized, such as the ''[http://www.ohchr.org/EN/Library/Pages/UDHR.aspx Universal Declaration of Human Rights]''.

Deciding which human rights laws apply to cases involving Aboriginal people can be a complicated legal question. You should get legal advice about which laws apply to specific situations.

==Get help==

===With more information===
'''Indigenous Services Canada''' is the federal government department supporting access to services for First Nations, Inuit and Métis.
:Web: [https://www.canada.ca/indigenous canada.ca/indigenous]

The '''Aboriginal Legal Aid in BC''' website from Legal Services Society provides information and [http://www.aboriginal.legalaid.bc.ca/pubs/ publications] on issues important to Aboriginal people, and information about the help that legal aid and other groups can give.
:Web: [https://aboriginal.legalaid.bc.ca aboriginal.legalaid.bc.ca]

Confirm the status of individual First Nations in treaty negotiations with the '''BC Treaty Commission'''.
:Web: [http://www.bctreaty.ca bctreaty.ca]

[updated March 2018]

'''The above was last reviewed for legal accuracy by Rhaea Bailey, Legal Services Society.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

Immigrating to British Columbia

2019-03-03T22:54:42Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = rights}}
For those thinking of settling permanently in British Columbia, there are several programs for immigrating to Canada. There is also financial and other help available for newcomers to the province.

==Understand the legal framework==

===There are several categories or “classes” of immigration===
There are dozens of government programs designed to make Canadian immigration successful, both for newcomers and for Canada. These programs fall into three broad categories, or “classes”:
#'''Family class'''. Programs for families, where Canadian citizens and permanent residents may sponsor family members and loved ones for Canadian immigration.
#'''Economic class'''. Programs for professionals and workers to apply to become a permanent resident of Canada.
#'''Refugee class'''. Canada offers refugee protection to people who fear persecution and who are unwilling or unable to return to their home country.

The ''[http://canlii.ca/t/7vwq Immigration and Refugee Protection Act]'' controls immigration to Canada. A federal government department, [https://www.canada.ca/en/immigration-refugees-citizenship.html Immigration, Refugees and Citizenship Canada], facilitates the arrival of immigrants and refugees to Canada.

===Immigrating under the “family class”===
The goal of family class immigration is to reunite Canadians with their close relatives. A Canadian citizen or permanent resident can '''sponsor''' certain relatives to come to Canada. A person can sponsor:
*their spouse or common-law partner
*their parents or grandparents
*their dependent children (biological or adopted)
*an unmarried orphaned sibling, nephew, niece or grandchild under 18

The applicant must be able to financially support the person they are sponsoring for a period of between three to 20 years, depending on their relationship with that person.

====Processing times====
Spouses and dependent children get priority. Usually, these applications take three to 12 months to process. It can take two to six years to process applications of parents and grandparents, depending on the visa office processing the application. Dependent children must either be under 22 years old and unmarried, or unable to support themselves due to a mental or physical condition. The Canadian government website lets you check [http://www.cic.gc.ca/english/information/times/index.asp processing times] and [https://www.canada.ca/en/immigration-refugees-citizenship/services/application/check-status.html application status].

====Work permits====
Sponsored spouses and common-law partners applying from within Canada may receive a work permit so they can work before becoming permanent residents. But people without this status when they apply may have to wait much longer for a work permit.

====Parents and grandparents====
The parent and grandparent sponsorship program is by invitation only. A person can [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/family-sponsorship/sponsor-parents-grandparents.html submit their interest] in sponsoring a parent or grandparent to become a permanent resident of Canada, and they may be invited to submit a complete application.

Parents and grandparents can also apply for a long-term “[http://www.cic.gc.ca/english/visit/supervisa.asp super visa]” to visit family in Canada for up to two years at a time. Normal visitor visas are for only six months.

===Immigrating under the “economic class”===
There are dozens of “economic class” programs for professionals and workers to apply to become a permanent resident of Canada.

====Federal programs====
The '''federal skilled workers''' program is for [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/federal-skilled-workers.html skilled workers with foreign work experience] who want to immigrate to Canada permanently. If an applicant meets the minimum requirements for the program, their application will be assessed on a 100-point grid that considers six factors. In addition to work experience, the grid factors in age, education, language ability, whether the applicant has a valid job offer, and their adaptability (how well they’re likely to settle in Canada).

The '''federal skilled trades''' program is for skilled workers who want to become permanent residents based on being [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/skilled-trades.html qualified in a skilled trade]. Applicants must have at least two years of full-time work experience in a skilled trade, and meet minimum requirements for language ability. They must also have either a valid job offer or a certificate of qualification in their skilled trade.

The '''Canadian experience class''' is for skilled workers [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/canadian-experience-class.html who have Canadian work experience] and want to become permanent residents. It lets people with one year of full-time work in Canada in a skilled occupation immigrate to Canada. Applicants must meet minimum requirements for language ability.

The '''start-up visa''' program targets immigrant entrepreneurs with an [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/about.html innovative business idea]. Applicants must show they have the skills and potential to build a business in Canada that is innovative and can create jobs. Successful applicants are granted a permanent residence visa and assistance to become established in Canada.

The '''self-employed persons''' program allows people to immigrate to Canada permanently as a self-employed person. Applicants must have relevant experience in '''cultural activities or athletics''', and be willing and able to make a significant contribution to the cultural or athletic life of Canada.

====BC’s provincial nominee program====
British Columbia and most other provinces have '''provincial nominee''' programs that fall under the economic class of immigrating to Canada. These programs can speed up, or fast track, an immigration application so it takes less than one year. They can also have a work permit issued in two to three months.

One of the fastest ways to immigrate to BC is under [https://www.welcomebc.ca/Immigrate-to-B-C/B-C-Provincial-Nominee-Program BC’s provincial nominee program], which lets BC select immigrants based on their specific ability to contribute to the BC economy. For example, applicants for jobs in BC where there is a shortage of workers — such as high-tech positions and rural postings — can qualify here. An applicant must first have a job offer to apply under this program. The program has four steps: registration, invitation, application, and nomination.

===Immigrating under the “refugee class”===
Canada has a long tradition of helping people in need, accepting them as '''refugees'''. Refugees include people unable or unwilling to return to their home country based on a well-founded fear of being persecuted because of their race, religion, political opinion, nationality, or membership in a particular social group. Refugees also include people who might face risk to their lives, cruel and unusual treatment, punishment, or torture if they went home.

To come to Canada as a refugee, a person must be referred. The United Nations Refugee Agency or a private sponsorship group can refer a refugee. Refugee claimants must prove they meet the definition of a refugee [https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees.html to become a protected person in Canada]. The Canadian government has designated some countries as “safe” and requires special procedures for refugee claimants from these countries.

===Some people are “inadmissible” to Canada===
Some people are not allowed to come to Canada. They’re “inadmissible” under [https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html#sec33_smooth Canada’s immigration law]. There are different reasons a person may be refused entry to (or removed from) Canada. They include:
*'''security reasons''', such as subversion (attempts to overthrow a government) or violence or terrorism
*'''human or international rights violations''', including war crimes
*'''committing a crime''', including impaired driving
*'''medical reasons''', including medical conditions that endanger public health
*'''financial reasons''' (if you’re unable or unwilling to support yourself and your family members)

Normally, if you’re inadmissible to Canada, you won’t be allowed to enter the country. If you have a valid reason to travel to Canada, you may be issued a [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/inadmissibility/temporary-resident-permits.html temporary resident permit].

===If you do not qualify under the usual immigration rules===
Immigration officials can make exceptions to the usual immigration rules in some cases to prevent undeserved or exceptional hardship.

===There is help available for new immigrants===
Some financial and other help is available to immigrants through various programs and services. These include counseling and cultural orientation, loans to help with transportation to Canada, language training, and job-related services.

Canada has many immigrant-serving organizations to help newcomers settle in Canada. They are excellent sources of information and advice on living in Canada. They also have settlement workers who can provide help to meet settlement needs such as finding a job, finding housing, and improving language skills.

The Legal Services Society may provide a lawyer for free for those who meet the financial guidelines and are facing an immigration proceeding that may remove them from Canada, or they want to claim refugee status. Their website legalaid.bc.ca lists [http://www.legalaid.bc.ca/legal_aid/legalAidLocations_Map.php legal aid locations]. You can also call them at 604-408-2172 in Greater Vancouver or toll-free 1-866-577-2525 elsewhere in BC.

===If you’re asked to leave Canada===
The refusal of a temporary residence application (such as a visitor record, a work permit, or a study permit), will most often come with instructions to leave Canada immediately. But some applicants will get a '''90-day restoration period''' when they can re-submit an application without having to leave the country. If you stay in Canada without a restoration period, it can cause serious problems for any future application to enter.

In cases where the Canada Border Services Agency takes steps to remove someone from Canada, most people are eligible for a '''pre-removal risk assessment''' before they are removed from the country. If you have already made a refugee claim that was rejected, the decision on risk will be based only on new evidence.

The Federal Court of Canada can review most decisions of immigration officials and tribunals. But it does so only in very limited cases. You would need legal help in this area.

==Get help==

===With more information===
'''Immigration, Refugees and Citizenship Canada''' is the federal government department that facilitates the arrival of immigrants and refugees to Canada. Their website explains federal immigration programs and includes online application forms.
:Toll-free (in Canada): 1-888-242-2100
:Web: [https://www.canada.ca/en/immigration-refugees-citizenship.html canada.ca/immigration]

'''WelcomeBC''' provides newcomers to British Columbia with information on immigrating to BC, getting settled, and finding employment.
:Web: [https://www.welcomebc.ca/ welcomebc.ca]

The '''Legal Services Society''' may provide a lawyer for free if you meet the financial guidelines and are facing an immigration proceeding that may remove you from Canada, or you want to claim refugee status. Their website also has [https://legalaid.bc.ca/publications/subject.php?sub=10 free publications for immigrants and refugees].
:Telephone: 604-408-2172 in Greater Vancouver
:Toll-free: 1-866-577-2525
:Web: [http://legalaid.bc.ca legalaid.bc.ca]

The '''Immigration and Refugee Board of Canada''' has details on refugee claims, admissibility hearings, and immigration appeals.
:Web: [https://irb-cisr.gc.ca/ irb-cisr.gc.ca]

The '''Canadian Council for Refugees''' has general information on refugees.
:Web: [https://ccrweb.ca ccrweb.ca]

[updated February 2018]

'''The above was last reviewed for legal accuracy by [https://larlee.com/lawyers/darren-penner/ Darren Penner], Larlee Rosenberg, and Gregory Bruce, Barrister & Solicitor.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=rights}}

When Someone Dies Without a Will

2019-03-03T22:34:50Z

Dial-A-Law: /* Understand the legal framework */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = wills}}
If someone dies without a will, they’re said to have died “intestate”. The law says how their property will get distributed, and who has the right to “administer” their affairs.

==Understand the legal framework==

===The law says how someone’s estate is distributed if they die without a will===
If someone dies without a will, the [http://canlii.ca/t/52x69#sec20 law in BC] says how their '''estate''' will be divided. A person’s estate is made up of the property and belongings they own on their death, with some exceptions (as explained in our information on the [[Your Duties As Executor (Script 178)|duties of an executor]]). The estate will be divided on an intestacy depending on the mix of relatives the deceased person leaves behind.

If the deceased leaves '''a spouse and no descendants''', the estate goes to their spouse. A “descendant” means a surviving person of the generation nearest to the deceased. This will almost always be children only. For example, grandchildren would get a share of the estate only if their parent (the deceased’s child) died before the deceased.

If the deceased leaves '''a spouse and descendants''', the spouse gets at least part of the estate. How much depends on whether the descendants are also the spouse’s descendants. If the deceased leaves a spouse and children — all of whom are also their spouse’s children — the spouse gets the first $300,000 of the estate and half of what’s left over. The other half is divided equally among the children. If any of the deceased’s children are not also their spouse’s children, the spouse gets the first $150,000 of the estate and half of what’s left over. The other half is divided among the descendants of the deceased (usually their children). In either case, the spouse has the right to acquire the family home from the estate as part of their share.

If the deceased had '''more than one spouse''' (possible under [http://canlii.ca/t/52x69#sec2 the law]), they share the spouse’s share equally (unless they agree or a court decides differently).

If the deceased had '''no spouse''', then the estate is divided among their descendants equally.

If the deceased had '''no spouse and no descendants''', then the estate goes to their parents. If their parents aren’t alive, it goes to their brothers and sisters, divided among them equally.

There are other rules to figure out which next of kin may receive the estate if the deceased had no spouse or descendants, and their parents and siblings aren’t alive or they had no siblings.

If no one qualifies under the rules as the deceased’s next of kin, the estate goes to the provincial government.

{| class="wikitable"
|align="left"|'''Tip'''
Every adult who owns assets or has a spouse or young children should have a will. By preparing a will, you have control over who gets how much of your estate and when. You can appoint a guardian for any young children you have. And you can minimize the time and expense for others to deal with your affairs after you die. See our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] for guidance on preparing a will.
|}

===A person doesn’t have to be married to be considered a spouse===
In this context, a '''spouse''' includes a person who has lived with the deceased person for at least two years in a marriage-like relationship immediately before their death. Same-sex common-law partners can be spouses.

This means that more than one person could be the deceased’s spouse and share in the estate.

===The court may need to appoint someone to look after any children===
With a will, a person can appoint a '''guardian''' to look after any young children they leave behind after they die. If someone dies without a will, the court will need to appoint a guardian if the deceased leaves behind children under 19 and the other parent isn’t alive.

===A minor’s share must be paid to the Public Guardian and Trustee===
If someone dies without a will, if anyone who is entitled to a share in the estate is not yet 19 years old, [http://canlii.ca/t/52x69#sec153 the law in BC] says their share must be paid to the '''Public Guardian and Trustee of BC'''. [http://www.trustee.bc.ca This public body] becomes the trustee and will hold a minor’s share in an estate until they’re 19 years old. The child’s parent or guardian can apply to the Public Guardian and Trustee for any money needed for things like living expenses or education. This can be a hardship if the child is quite young and the parent or guardian needs the money for day-to-day expenses.

When the child turns 19, they can demand all their money — no matter how much it is or whether they are mature or financially responsible.

{| class="wikitable"
|align="left"|'''Tip'''
By preparing a will, a person can create a '''trust''' for any gifts left to minor children or others who might be under 19 when the will-maker dies. The will-maker can appoint a trustee to manage the minor’s share for the minor’s benefit until they turn 19 (or a later age if desired). See our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]] for more on the benefits of preparing a will.
|}

===The court will appoint someone to deal with the estate===
If someone dies without a will, then they haven’t appointed an executor to manage their affairs when they die. Someone will need to apply to court so they can legally deal with the deceased person’s estate. The person appointed by the court to manage the estate is called an '''administrator'''.

===There are certain people who can apply to administer the estate===
The people who can apply to '''administer''' the estate are listed [http://canlii.ca/t/52x69#sec130 under the law] by order of priority. The spouse of the deceased is the first person who can apply or nominate someone else to apply.

If the deceased did not have a spouse or if the spouse is unwilling or unable to be the administrator, then a relative can apply.

If there are no relatives willing or able to do this, then any other eligible person can apply to be the administrator. This may include a friend of the deceased, or a professional such as a lawyer or accountant. The Public Guardian and Trustee — as Official Administrator for the province of BC — might also apply to administer the estate, if no one else is willing to do it.

====Certain conditions may apply to appointing an administrator====
If the deceased leaves behind debts when they die, the person who applies to be the administrator must get the deceased’s creditors to agree to the application. Also, the person who applies may have to get the agreement of other people who could be appointed administrator. And the person may have to secure (deposit) money with the court (called a '''bond'''), to ensure they do the work honestly and competently.

===The duties of an administrator===

An administrator must:
*Make funeral arrangements, if required.
*Locate all the estate’s '''assets''' and make sure they’re secure; for example, the administrator must ensure that cars or buildings are insured, and that important documents are in a safe place.
*Locate all family members who may be legally entitled to a share of the estate (called an “'''heir'''” of the estate). This may involve contacting people outside of Canada.
*Advertise in the ''[https://www.crownpub.bc.ca/Home/Gazette BC Gazette]'' for potential creditors.
*Sell assets that need to be sold. This includes listing and selling real estate after having it appraised; selling stocks, bonds, and other securities; and valuing and disposing of other personal belongings. Sometimes, instead of being sold, assets may be given a certain value and transferred to an heir as part of their share of the estate.
*File all necessary income tax returns and obtain an income tax clearance from the Canada Revenue Agency, confirming that all income tax has been paid.
*Put all money in an estate account and use it to pay the estate's debts, income taxes, legal and accounting expenses, and possibly an administration fee.
*Pay any money left over to the heirs of the estate.
*Report to the heirs listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.

==Get help==

===With more information===
The '''Public Guardian and Trustee of British Columbia''' is a government office that may agree to administer an estate when someone dies without a will.
:Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
:Toll-free: 1-800-663-7867
:Web: [http://www.trustee.bc.ca/ trustee.bc.ca]

[updated February 2018]

'''The above was last reviewed for legal accuracy by [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=wills}}

When Someone Dies Without a Will

2019-03-03T22:31:59Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = wills}}
If someone dies without a will, they’re said to have died “intestate”. The law says how their property will get distributed, and who has the right to “administer” their affairs.

==Understand the legal framework==

===The law says how someone’s estate is distributed if they die without a will===
If someone dies without a will, the [http://canlii.ca/t/52x69#sec20 law in BC] says how their '''estate''' will be divided. A person’s estate is made up of the property and belongings they own on their death, with some exceptions (as explained in our information on the [https://dialalaw.peopleslawschool.ca/your-duties-as-executor/ duties of an executor]). The estate will be divided on an intestacy depending on the mix of relatives the deceased person leaves behind.

If the deceased leaves '''a spouse and no descendants''', the estate goes to their spouse. A “descendant” means a surviving person of the generation nearest to the deceased. This will almost always be children only. For example, grandchildren would get a share of the estate only if their parent (the deceased’s child) died before the deceased.

If the deceased leaves '''a spouse and descendants''', the spouse gets at least part of the estate. How much depends on whether the descendants are also the spouse’s descendants. If the deceased leaves a spouse and children — all of whom are also their spouse’s children — the spouse gets the first $300,000 of the estate and half of what’s left over. The other half is divided equally among the children. If any of the deceased’s children are not also their spouse’s children, the spouse gets the first $150,000 of the estate and half of what’s left over. The other half is divided among the descendants of the deceased (usually their children). In either case, the spouse has the right to acquire the family home from the estate as part of their share.

If the deceased had '''more than one spouse''' (possible under [http://canlii.ca/t/52x69#sec2 the law]), they share the spouse’s share equally (unless they agree or a court decides differently).

If the deceased had '''no spouse''', then the estate is divided among their descendants equally.

If the deceased had '''no spouse and no descendants''', then the estate goes to their parents. If their parents aren’t alive, it goes to their brothers and sisters, divided among them equally.

There are other rules to figure out which next of kin may receive the estate if the deceased had no spouse or descendants, and their parents and siblings aren’t alive or they had no siblings.

If no one qualifies under the rules as the deceased’s next of kin, the estate goes to the provincial government.

{| class="wikitable"
|align="left"|'''Tip'''
Every adult who owns assets or has a spouse or young children should have a will. By preparing a will, you have control over who gets how much of your estate and when. You can appoint a guardian for any young children you have. And you can minimize the time and expense for others to deal with your affairs after you die. See our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] for guidance on preparing a will.
|}

===A person doesn’t have to be married to be considered a spouse===
In this context, a '''spouse''' includes a person who has lived with the deceased person for at least two years in a marriage-like relationship immediately before their death. Same-sex common-law partners can be spouses.

This means that more than one person could be the deceased’s spouse and share in the estate.

===The court may need to appoint someone to look after any children===
With a will, a person can appoint a '''guardian''' to look after any young children they leave behind after they die. If someone dies without a will, the court will need to appoint a guardian if the deceased leaves behind children under 19 and the other parent isn’t alive.

===A minor’s share must be paid to the Public Guardian and Trustee===
If someone dies without a will, if anyone who is entitled to a share in the estate is not yet 19 years old, [http://canlii.ca/t/52x69#sec153 the law in BC] says their share must be paid to the '''Public Guardian and Trustee of BC'''. [http://www.trustee.bc.ca This public body] becomes the trustee and will hold a minor’s share in an estate until they’re 19 years old. The child’s parent or guardian can apply to the Public Guardian and Trustee for any money needed for things like living expenses or education. This can be a hardship if the child is quite young and the parent or guardian needs the money for day-to-day expenses.

When the child turns 19, they can demand all their money — no matter how much it is or whether they are mature or financially responsible.

{| class="wikitable"
|align="left"|'''Tip'''
By preparing a will, a person can create a '''trust''' for any gifts left to minor children or others who might be under 19 when the will-maker dies. The will-maker can appoint a trustee to manage the minor’s share for the minor’s benefit until they turn 19 (or a later age if desired). See our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]] for more on the benefits of preparing a will.
|}

===The court will appoint someone to deal with the estate===
If someone dies without a will, then they haven’t appointed an executor to manage their affairs when they die. Someone will need to apply to court so they can legally deal with the deceased person’s estate. The person appointed by the court to manage the estate is called an '''administrator'''.

===There are certain people who can apply to administer the estate===
The people who can apply to '''administer''' the estate are listed [http://canlii.ca/t/52x69#sec130 under the law] by order of priority. The spouse of the deceased is the first person who can apply or nominate someone else to apply.

If the deceased did not have a spouse or if the spouse is unwilling or unable to be the administrator, then a relative can apply.

If there are no relatives willing or able to do this, then any other eligible person can apply to be the administrator. This may include a friend of the deceased, or a professional such as a lawyer or accountant. The Public Guardian and Trustee — as Official Administrator for the province of BC — might also apply to administer the estate, if no one else is willing to do it.

====Certain conditions may apply to appointing an administrator====
If the deceased leaves behind debts when they die, the person who applies to be the administrator must get the deceased’s creditors to agree to the application. Also, the person who applies may have to get the agreement of other people who could be appointed administrator. And the person may have to secure (deposit) money with the court (called a '''bond'''), to ensure they do the work honestly and competently.

===The duties of an administrator===

An administrator must:
*Make funeral arrangements, if required.
*Locate all the estate’s '''assets''' and make sure they’re secure; for example, the administrator must ensure that cars or buildings are insured, and that important documents are in a safe place.
*Locate all family members who may be legally entitled to a share of the estate (called an “'''heir'''” of the estate). This may involve contacting people outside of Canada.
*Advertise in the ''[https://www.crownpub.bc.ca/Home/Gazette BC Gazette]'' for potential creditors.
*Sell assets that need to be sold. This includes listing and selling real estate after having it appraised; selling stocks, bonds, and other securities; and valuing and disposing of other personal belongings. Sometimes, instead of being sold, assets may be given a certain value and transferred to an heir as part of their share of the estate.
*File all necessary income tax returns and obtain an income tax clearance from the Canada Revenue Agency, confirming that all income tax has been paid.
*Put all money in an estate account and use it to pay the estate's debts, income taxes, legal and accounting expenses, and possibly an administration fee.
*Pay any money left over to the heirs of the estate.
*Report to the heirs listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.

==Get help==

===With more information===
The '''Public Guardian and Trustee of British Columbia''' is a government office that may agree to administer an estate when someone dies without a will.
:Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
:Toll-free: 1-800-663-7867
:Web: [http://www.trustee.bc.ca/ trustee.bc.ca]

[updated February 2018]

'''The above was last reviewed for legal accuracy by [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=wills}}

Sexual Harassment

2019-03-03T07:22:50Z

Dial-A-Law: /* Talk to your employer */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Harassment is conduct a reasonable person would consider objectionable or unwelcome. Learn your rights when harassment involves conduct of a sexual nature, as well as options if you’re sexually harassed.

==Understand your legal rights==

===Sexual harassment is unwelcome conduct of a sexual nature===
'''Sexual harassment''' can take many forms. It can be physical conduct such as grabbing, kissing or other unwelcome touching that has a sexual connotation. It can be verbal conduct such as making derogatory comments about a person's appearance, telling crude jokes, or making sexual propositions. It can be something in the environment such as displaying offensive pictures at work.

Sexual harassment can occur in many different settings. It can occur in the workplace, interfering with a worker’s ability to do their job, or creating a hostile or offensive work environment. It can affect a tenant’s rental housing situation. It can impact a student’s education.

====Examples of sexual harassment====
Sexual harassment can include the following conduct:
*sexual behaviour you feel you must accept to keep your job, get a promotion, get a good grade, keep your apartment, or get repairs done
*unwanted touching, patting, or grabbing
*the unwanted display or sharing of pornography or suggestive pictures
*sexual leering, teasing, or telling obscene jokes (this could include sharing obscene jokes by email or other electronic means)
*making rude comments about someone’s gender presentation or treating someone badly because they don’t fit with sex-role stereotypes
*an invitation to dinner or some other social activity, from a supervisor, teacher, or landlord who implies you must accept it or face trouble in your job, school, or apartment
*an unwanted invitation from a supervisor, co-worker, teacher, or landlord that is continually repeated

Not all invitations are sexual harassment. An invitation can be an innocent, one-time request that you can accept or reject without any trouble.

===Several laws protect people from sexual harassment===
The BC ''[http://canlii.ca/t/843q Human Rights Code]'' protects people from sexual harassment and other forms of discrimination in a number of areas. Our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]] explains that when someone is treated differently than others based on personal characteristics such as the colour of their skin or their age, it’s called discrimination. The ''Human Rights Code'' protects people from being treated differently based on their sex, sexual orientation, or gender identity or expression in several areas: in the workplace, in rental housing, by service providers, and in publications. This includes the right to be free from sexual harassment in these contexts.

The ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-492/latest/rsbc-1996-c-492.html#sec5.1_smooth Workers’ Compensation Act]'' deals with harassment, which includes sexual harassment. A worker who is sexually harassed at work and suffers a mental disorder from it, may be able to get '''workers’ compensation'''. Employers must have policies to prevent and respond to harassment and bullying in the workplace.

If sexual harassment is serious enough, it may be a crime under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec264_smooth Criminal Code]''. The offence of '''criminal harassment''' features harassing behaviour that a person knows (or is reckless) is harassing the victim and causes them to reasonably fear for their safety. See our information on [[Stalking, Criminal Harassment and Cyberbullying (Script 206)|criminal harassment (no. 206)]] for details.

A target of sexual harassment may also be able to sue the person harassing them for damages to compensate them.

===Sexual harassment in the workplace===
There are three key elements of sexual harassment in the workplace:
#conduct of a sexual nature which is '''gender based''',
#conduct that is '''unwelcome''', and
#conduct that '''detrimentally affects''' the work environment or leads to adverse job-related consequences.

"Gender based" refers to behaviour that relates specifically to gender. The offensive behaviour references gender (for example, an overt sexual solicitation) or the behaviour occurs because of the gender (for example, an offensive joke does not refer to sex, but the joke is played to embarrass the person because she is a woman).

Employers may be responsible for the harassment if they allow some workers to sexually harass others, instead of stopping the harassment.

===If you are sexually harassed===
React immediately and directly, if possible. Sometimes you can talk to the person harassing you. The best response may be to tell the person you don’t welcome or accept the behaviour, and if they repeat it, you will report it. But sometimes, talking to the harasser won’t work.

====Talk to your employer====
If the harassment takes place at work, '''talk to your supervisor or human resources person'''. Find out your employer’s policy on human rights complaints. If you belong to a union, talk to the union steward. You have a right under the collective agreement between the union and employer to complain to the union about sexual harassment by the employer, a supervisor, a co-worker, or a customer.

====Make a human rights complaint====
If the harassment continues, you can '''make a human rights complaint''' to the BC [http://www.bchrt.bc.ca/ Human Rights Tribunal]. The tribunal deals with complaints under the ''[http://canlii.ca/t/843q Human Rights Code]''. It operates like a court but is less formal.

You must file a complaint with the tribunal within '''six months''' of when the harassment happened. Our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]] explains the steps in making a human rights complaint.

If the ''Human Rights Code'' covers your complaint, the tribunal will ask the other person to reply to your complaint. The tribunal will try to help you and the other person settle the complaint. If that’s not possible, the tribunal may hold a hearing. If your complaint is justified, the tribunal can make orders to stop the harassment and pay you money for lost income (including wages and disability and other benefits) and expenses. The tribunal can also order the person who harassed you to pay you for injury to your dignity, feelings, and self-respect.

The ''Human Rights Code'' prohibits anyone from threatening you or retaliating against you for filing a complaint.

====Sue for wrongful dismissal====
If you leave your job because of the harassment, you may also be able to sue in court for '''wrongful dismissal'''. You may be able to recover more in damages than in a human rights complaint. On the other hand, bringing a lawsuit is an involved and expensive process. See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] and [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]] for more details.

{| class="wikitable"
|align="left"|'''Tip'''
Make and keep a written record of every incident of harassment — when it occurs. Include the date and location, who else was present, and the details of the harassment. Tell someone else, like a trusted co-worker, friend, or family member that you are being harassed. Your written record, and the fact you told someone, may be important evidence if you file a complaint or sue.
|}

==Get help==

===With a harassment complaint===
The '''BC Human Rights Clinic''' may be able to help you file a complaint with the Human Rights Tribunal and help you at a hearing. The clinic is operated by the Community Legal Assistance Society (CLAS).
:Telephone: 604-622-1100 in Vancouver
:Toll-free: 1-855-685-6222
:Web: [https://www.bchrc.net bchrc.net]

In the Greater Victoria area, the '''University of Victoria Law Centre''' provides help for eligible human rights complainants and respondents.
:Telephone: 250-385-1221
:Web: [http://thelawcentre.ca/ thelawcentre.ca]

[updated February 2018]

'''The above was last reviewed for legal accuracy and edited by [http://www.clasbc.net/laura_track Laura Track], Community Legal Assistance Society, and [http://dir.gov.bc.ca/gtds.cgi?esearch=&view=detailed&sortBy=name&for=people&attribute=name&matchMethod=is&searchString=Katherine+Hardie&objectId=43315 Katherine Hardie], BC Human Rights Tribunal.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Sexual Harassment

2019-03-03T07:21:05Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Harassment is conduct a reasonable person would consider objectionable or unwelcome. Learn your rights when harassment involves conduct of a sexual nature, as well as options if you’re sexually harassed.

==Understand your legal rights==

===Sexual harassment is unwelcome conduct of a sexual nature===
'''Sexual harassment''' can take many forms. It can be physical conduct such as grabbing, kissing or other unwelcome touching that has a sexual connotation. It can be verbal conduct such as making derogatory comments about a person's appearance, telling crude jokes, or making sexual propositions. It can be something in the environment such as displaying offensive pictures at work.

Sexual harassment can occur in many different settings. It can occur in the workplace, interfering with a worker’s ability to do their job, or creating a hostile or offensive work environment. It can affect a tenant’s rental housing situation. It can impact a student’s education.

====Examples of sexual harassment====
Sexual harassment can include the following conduct:
*sexual behaviour you feel you must accept to keep your job, get a promotion, get a good grade, keep your apartment, or get repairs done
*unwanted touching, patting, or grabbing
*the unwanted display or sharing of pornography or suggestive pictures
*sexual leering, teasing, or telling obscene jokes (this could include sharing obscene jokes by email or other electronic means)
*making rude comments about someone’s gender presentation or treating someone badly because they don’t fit with sex-role stereotypes
*an invitation to dinner or some other social activity, from a supervisor, teacher, or landlord who implies you must accept it or face trouble in your job, school, or apartment
*an unwanted invitation from a supervisor, co-worker, teacher, or landlord that is continually repeated

Not all invitations are sexual harassment. An invitation can be an innocent, one-time request that you can accept or reject without any trouble.

===Several laws protect people from sexual harassment===
The BC ''[http://canlii.ca/t/843q Human Rights Code]'' protects people from sexual harassment and other forms of discrimination in a number of areas. Our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]] explains that when someone is treated differently than others based on personal characteristics such as the colour of their skin or their age, it’s called discrimination. The ''Human Rights Code'' protects people from being treated differently based on their sex, sexual orientation, or gender identity or expression in several areas: in the workplace, in rental housing, by service providers, and in publications. This includes the right to be free from sexual harassment in these contexts.

The ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-492/latest/rsbc-1996-c-492.html#sec5.1_smooth Workers’ Compensation Act]'' deals with harassment, which includes sexual harassment. A worker who is sexually harassed at work and suffers a mental disorder from it, may be able to get '''workers’ compensation'''. Employers must have policies to prevent and respond to harassment and bullying in the workplace.

If sexual harassment is serious enough, it may be a crime under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec264_smooth Criminal Code]''. The offence of '''criminal harassment''' features harassing behaviour that a person knows (or is reckless) is harassing the victim and causes them to reasonably fear for their safety. See our information on [[Stalking, Criminal Harassment and Cyberbullying (Script 206)|criminal harassment (no. 206)]] for details.

A target of sexual harassment may also be able to sue the person harassing them for damages to compensate them.

===Sexual harassment in the workplace===
There are three key elements of sexual harassment in the workplace:
#conduct of a sexual nature which is '''gender based''',
#conduct that is '''unwelcome''', and
#conduct that '''detrimentally affects''' the work environment or leads to adverse job-related consequences.

"Gender based" refers to behaviour that relates specifically to gender. The offensive behaviour references gender (for example, an overt sexual solicitation) or the behaviour occurs because of the gender (for example, an offensive joke does not refer to sex, but the joke is played to embarrass the person because she is a woman).

Employers may be responsible for the harassment if they allow some workers to sexually harass others, instead of stopping the harassment.

===If you are sexually harassed===
React immediately and directly, if possible. Sometimes you can talk to the person harassing you. The best response may be to tell the person you don’t welcome or accept the behaviour, and if they repeat it, you will report it. But sometimes, talking to the harasser won’t work.

===Talk to your employer===
If the harassment takes place at work, '''talk to your supervisor or human resources person'''. Find out your employer’s policy on human rights complaints. If you belong to a union, talk to the union steward. You have a right under the collective agreement between the union and employer to complain to the union about sexual harassment by the employer, a supervisor, a co-worker, or a customer.

====Make a human rights complaint====
If the harassment continues, you can '''make a human rights complaint''' to the BC [http://www.bchrt.bc.ca/ Human Rights Tribunal]. The tribunal deals with complaints under the ''[http://canlii.ca/t/843q Human Rights Code]''. It operates like a court but is less formal.

You must file a complaint with the tribunal within '''six months''' of when the harassment happened. Our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]] explains the steps in making a human rights complaint.

If the ''Human Rights Code'' covers your complaint, the tribunal will ask the other person to reply to your complaint. The tribunal will try to help you and the other person settle the complaint. If that’s not possible, the tribunal may hold a hearing. If your complaint is justified, the tribunal can make orders to stop the harassment and pay you money for lost income (including wages and disability and other benefits) and expenses. The tribunal can also order the person who harassed you to pay you for injury to your dignity, feelings, and self-respect.

The ''Human Rights Code'' prohibits anyone from threatening you or retaliating against you for filing a complaint.

====Sue for wrongful dismissal====
If you leave your job because of the harassment, you may also be able to sue in court for '''wrongful dismissal'''. You may be able to recover more in damages than in a human rights complaint. On the other hand, bringing a lawsuit is an involved and expensive process. See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] and [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]] for more details.

{| class="wikitable"
|align="left"|'''Tip'''
Make and keep a written record of every incident of harassment — when it occurs. Include the date and location, who else was present, and the details of the harassment. Tell someone else, like a trusted co-worker, friend, or family member that you are being harassed. Your written record, and the fact you told someone, may be important evidence if you file a complaint or sue.
|}

==Get help==

===With a harassment complaint===
The '''BC Human Rights Clinic''' may be able to help you file a complaint with the Human Rights Tribunal and help you at a hearing. The clinic is operated by the Community Legal Assistance Society (CLAS).
:Telephone: 604-622-1100 in Vancouver
:Toll-free: 1-855-685-6222
:Web: [https://www.bchrc.net bchrc.net]

In the Greater Victoria area, the '''University of Victoria Law Centre''' provides help for eligible human rights complainants and respondents.
:Telephone: 250-385-1221
:Web: [http://thelawcentre.ca/ thelawcentre.ca]

[updated February 2018]

'''The above was last reviewed for legal accuracy and edited by [http://www.clasbc.net/laura_track Laura Track], Community Legal Assistance Society, and [http://dir.gov.bc.ca/gtds.cgi?esearch=&view=detailed&sortBy=name&for=people&attribute=name&matchMethod=is&searchString=Katherine+Hardie&objectId=43315 Katherine Hardie], BC Human Rights Tribunal.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Protection Against Job Discrimination

2019-03-03T07:05:18Z

Dial-A-Law: /* Option 2. Complain to the Employment Standards Branch */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Being treated differently than others based on personal characteristics is called discrimination. The law protects you from discrimination at work. Learn your rights and options if someone discriminates against you.

==Understand your legal rights==

===You are protected against discrimination in your job===
If you’re treated differently than others based on personal characteristics such as the colour of your skin or your sex, it’s called '''discrimination'''. Discrimination can take many forms. Harassment (conduct a reasonable person would consider objectionable or unwelcome), negative differential treatment, or getting unequal pay for similar work are all examples of discrimination.

There are federal and provincial human rights laws that protect workers from discrimination in the workplace. Most employers in BC are covered by the province’s ''[http://canlii.ca/t/843q Human Rights Code]''. But BC employers in certain industries that are federally regulated, such as banks and airlines, are covered by the ''[http://canlii.ca/t/7vh5 Canadian Human Rights Act]''. This law applies throughout the country. The federal law also applies to employers in the federal public service.

The guidance below focuses on your rights under BC’s law. However, many of the same rules apply to workers covered by the federal law.

{| class="wikitable"
|align="left"|'''Tip'''
If your situation involves federal law, contact the [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] at 1-888-214-1090. If you don’t know whether federal or provincial law applies, you can contact the Commission or the BC Human Rights Tribunal, which deals with complaints under the BC ''Human Rights Code''. Either agency can tell you which one can handle your complaint.
|}

===Employers must not discriminate based on protected grounds===
Under the BC ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec13_smooth Human Rights Code]'', an employer must not discriminate against a worker based on these personal characteristics:
*their race, colour, ancestry, or place of origin
*their age (as long as they are age 19 or older)
*their sex (including pregnancy), sexual orientation, or gender identity or expression
*their marital or family status (including family obligations of one person to another, not just parent–child)
*their political belief or religion
*any physical disability (including HIV and AIDS) or mental disability
*any criminal convictions that are unrelated to the job

These are called '''protected grounds'''. You can not be treated differently than others in the workplace based on a protected ground.

====This protection applies in all aspects of employment====
The protection against discrimination applies in hiring, firing, wages, benefits, hours, and other terms and conditions of work. This means an employer cannot factor a protected ground into:
*not hiring you,
*not promoting you,
*firing you, or
*discriminating in some other way against you in your job.

The protected ground does not need to be the only or main reason for a decision or action by an employer. It is discrimination if the ground is a factor in the decision or action. For example, if you weren’t hired in part because of your religion or sex, that’s discrimination.

The protection includes the workplace environment. Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace.

====Examples of job discrimination====
Examples of job discrimination include an employer:
*turning down a woman for a job featuring physical labour, believing only men are qualified for that type of work
*changing a term of the job to interfere with a worker’s parental or family duty
*changing a term of the job to interfere with a worker’s religious beliefs
*harassing (or letting other workers harass) a worker over their race, religion, sex or other protected ground
*requiring a worker with a drug addiction to undergo drug testing (unless the employer can justify the testing)
*failing to take reasonable steps to accommodate a deaf employee
*firing a worker because of a mental or physical disability

===The employer’s duty to accommodate===
Employers must also '''accommodate''' workers to ensure they are treated fairly. Employers must take all reasonable steps to avoid a negative effect on a worker based on a protected characteristic. For example, a job requirement to work on a certain day may hurt someone whose religion prevents them from working on that day. Or, a person with a disability may not be able to perform a certain part of their job because of their disability. In these cases, the employer must make adjustments to accommodate these differences. They must take reasonable steps to remove the harm and support the worker to do the job.

====To the point of undue hardship====
The employer’s duty to accommodate isn’t limitless. It extends only to the point where the accommodation starts causing the employer “'''undue hardship'''”.

Many human rights cases involve complaints that an employer has not accommodated a worker’s disability. The ''Human Rights Code'' does not define disability. Cases have said a disability is involuntary, is somewhat permanent, and impairs a person's ability to carry out the normal functions of life. Accommodation requires an employer and a worker (''and'' a worker’s union, if they are in one) to find a practical solution to accommodate the worker’s disability but not create an undue hardship on the employer. An employer may have to accept some hardship. That hardship might involve expense, inconvenience, or disruption — as long as it does not unduly interfere with the business.

===An exception for a “bona fide occupational requirement”===
An employer may be able to make a decision (such as refusing to hire or promote you) that appears to be discriminatory if they can show the decision was based on a '''bona fide occupational requirement'''. Such a requirement is a legitimate job-related qualification where the employer cannot accommodate the protected ground without facing undue hardship. For example, a women’s health club could probably limit work cleaning a women’s locker room while women are present to a female cleaner, but if the job involved cleaning after hours, it probably could not limit the job to women.

===The protection extends to union membership, employment agencies, and job ads===
A '''trade union, employers' organization or occupational association''' can’t discriminate against you. For example, a union can’t use any of the protected grounds in the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec14_smooth Human Rights Code]'' to stop you from joining the union, to expel or suspend you, or otherwise discriminate against you.

An '''employment agency''' can’t refuse to refer you for employment based on a protected ground.

As well, under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec11_smooth the Code], the protection extends to '''job ads'''. Employers cannot advertise in connection with a job a limitation, specification, or preference based on a protected ground. The exception is if the limitation, specification, or preference is based on a bona fide job requirement. Job ads should describe the job and the necessary skills and training, not a certain type of person.

===If someone discriminates against you===
If someone discriminates against you in the workplace, you have options.

====Option 1. Make a human rights complaint====
You can '''make a complaint''' to the BC Human Rights Tribunal. The tribunal deals with complaints under the ''[http://canlii.ca/t/843q Human Rights Code]''. It operates like a court but is less formal. It has staff who help people resolve complaints without going to a hearing. If that’s not possible, they hold a hearing to decide if there was discrimination.

You must file a complaint with the tribunal within '''six months''' of when the discrimination happened. You can get a complaint form from the tribunal’s website at [http://www.bchrt.gov.bc.ca/complaint-process/complain/file.htm bchrt.bc.ca] or by calling 604-775-2000 in Vancouver or 1-888-440-8844 elsewhere in BC. Our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]] explains the steps in making a human rights complaint. We explain what to expect from the process shortly.

====Option 2. Complain to the Employment Standards Branch====
If your employer didn’t follow the ''[http://canlii.ca/t/8405 Employment Standards Act]'', you can '''make a complaint''' to the Employment Standards Branch, the government office that administers that Act. It covers some situations that can also bring the ''Human Rights Code'' into play. For example, under the ''Employment Standards Act'', an employer cannot fire you because you are pregnant. The Employment Standards Branch has different powers than does the Human Rights Tribunal. See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] for more details on making a complaint to the Branch.

====Option 3. Sue for wrongful dismissal====
If you lose your job because of discrimination, you may decide to sue in court for '''wrongful dismissal'''. You may be able to recover more in damages than in a human rights complaint. On the other hand, bringing a lawsuit is an involved and expensive process. See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] and [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]] for more details.

====Option 4. If you belong to a union====
If you belong to a union, one option is to ask the union to file a '''grievance''' about the discrimination.

{| class="wikitable"
|align="left"|'''Tip'''
If you complain to the Human Rights Tribunal and also pursue another option (by filing a union grievance, making a complaint under the ''Employment Standards Act'', or suing the employer for wrongful dismissal), the tribunal can wait until the other process is finished before dealing with your complaint. It is a good idea to seek '''legal advice''' on your options. See our information on [[Low Cost and Free Legal Services (Script 430)|free and low-cost legal help (no. 430)]].
|}

===If you make a human rights complaint===
If you make a complaint to the BC Human Rights Tribunal, you must show that the employer’s conduct (or the conduct of another person) had an '''adverse impact''' on you and that one of the protected grounds was at least a factor in the adverse impact.

If you show that, the employer can try to prove their conduct was '''justified''' (a bona fide occupational requirement).

====The tribunal considers your complaint====
If it finds the complaint may involve a violation of the ''Human Rights Code'', the tribunal will ask the employer to reply to your complaint. The tribunal can try to help you and the employer settle the complaint. If that is not possible, the tribunal may hold a hearing.

====Possible awards====
If the tribunal decides your complaint is justified, it can order the employer or other person to stop discriminating and give you your job back. Or it can order them to give you the right to compete for a job.

The tribunal can also order the employer or other person to pay you money ('''compensation''') for lost income (including wages and disability and other benefits) and expenses. The tribunal can also order the employer or other person to pay you compensation for injury to your dignity, feelings, and self-respect. In most cases, these damages are under $10,000, but some damage awards have been much higher, up to $75,000.

{| class="wikitable"
|align="left"|'''Tip'''
Write down anything the employer says or does that may be discriminatory. Keep your written record — it may be useful evidence later.
|}

==Common questions==

===In a job interview, I was asked about my religious beliefs. Is that allowed?===
In a job interview, you can be asked about “protected ground” characteristics as long as the questions aren’t discriminatory. This will depend on the context. For example, you may be asked, as a casual icebreaker, where you’re from. But this question can’t be part of the formal interview.

===Are men and women supposed to get the same pay for similar work?===
Yes. Generally, employers must not pay a man more than a woman for similar, or substantially similar, work. The reverse of this is also true: employers must not pay a woman more than a man for similar or substantially similar work. Whether work is similar, or substantially similar, depends on many things, including the skill, effort, and responsibility a job requires. Employers can pay different wages to different people based on seniority, merit, and productivity.

===If there a mandatory retirement age in BC?===
No. The ''Human Rights Code'' protects all people 19 and over from discrimination because of their age. Among other things, this means you cannot be forced to retire because of your age. The exception is where an employer can show that an age limit is a bona fide occupational requirement, because of the duties or needs of the work or because of safety issues or dangers.

===Can an employer make me give up my rights under the ''Human Rights Code''?===
No. The Code does not let people agree to give up their rights. An employer cannot ask you to sign a contract that says the employer can discriminate against you.

===Are there time limits for filing a human rights complaint or suing?===
Yes, there are time limits in both cases. You have six months from when the discrimination occurs to file a complaint with the Human Rights Tribunal. If you wait longer than six months, your complaint may still be accepted if the tribunal believes it is in the public interest to accept it and no party will be prejudiced because of the delay. There are also time limits for suing in court — see our information on [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]] for details.

==Get help==

===With a discrimination complaint===
The '''BC Human Rights Clinic''' may be able to help you file a complaint with the Human Rights Tribunal and help you at a hearing. The clinic is operated by the Community Legal Assistance Society (CLAS).
:Telephone: 604-622-1100 in Vancouver
:Toll-free: 1-855-685-6222
:Web: [https://www.bchrc.net bchrc.net]

In the Greater Victoria area, the '''University of Victoria Law Centre''' provides help for eligible human rights complainants and respondents.
:Telephone: 250-385-1221
:Web: [http://thelawcentre.ca/ thelawcentre.ca]

[updated June 2018]

'''The above was last reviewed for legal accuracy by Bradley Martyniuk, Lindsay Kenney, and Katherine Hardie, BC Human Rights Tribunal.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Protection Against Job Discrimination

2019-03-03T07:03:57Z

Dial-A-Law: /* To the point of undue hardship */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Being treated differently than others based on personal characteristics is called discrimination. The law protects you from discrimination at work. Learn your rights and options if someone discriminates against you.

==Understand your legal rights==

===You are protected against discrimination in your job===
If you’re treated differently than others based on personal characteristics such as the colour of your skin or your sex, it’s called '''discrimination'''. Discrimination can take many forms. Harassment (conduct a reasonable person would consider objectionable or unwelcome), negative differential treatment, or getting unequal pay for similar work are all examples of discrimination.

There are federal and provincial human rights laws that protect workers from discrimination in the workplace. Most employers in BC are covered by the province’s ''[http://canlii.ca/t/843q Human Rights Code]''. But BC employers in certain industries that are federally regulated, such as banks and airlines, are covered by the ''[http://canlii.ca/t/7vh5 Canadian Human Rights Act]''. This law applies throughout the country. The federal law also applies to employers in the federal public service.

The guidance below focuses on your rights under BC’s law. However, many of the same rules apply to workers covered by the federal law.

{| class="wikitable"
|align="left"|'''Tip'''
If your situation involves federal law, contact the [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] at 1-888-214-1090. If you don’t know whether federal or provincial law applies, you can contact the Commission or the BC Human Rights Tribunal, which deals with complaints under the BC ''Human Rights Code''. Either agency can tell you which one can handle your complaint.
|}

===Employers must not discriminate based on protected grounds===
Under the BC ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec13_smooth Human Rights Code]'', an employer must not discriminate against a worker based on these personal characteristics:
*their race, colour, ancestry, or place of origin
*their age (as long as they are age 19 or older)
*their sex (including pregnancy), sexual orientation, or gender identity or expression
*their marital or family status (including family obligations of one person to another, not just parent–child)
*their political belief or religion
*any physical disability (including HIV and AIDS) or mental disability
*any criminal convictions that are unrelated to the job

These are called '''protected grounds'''. You can not be treated differently than others in the workplace based on a protected ground.

====This protection applies in all aspects of employment====
The protection against discrimination applies in hiring, firing, wages, benefits, hours, and other terms and conditions of work. This means an employer cannot factor a protected ground into:
*not hiring you,
*not promoting you,
*firing you, or
*discriminating in some other way against you in your job.

The protected ground does not need to be the only or main reason for a decision or action by an employer. It is discrimination if the ground is a factor in the decision or action. For example, if you weren’t hired in part because of your religion or sex, that’s discrimination.

The protection includes the workplace environment. Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace.

====Examples of job discrimination====
Examples of job discrimination include an employer:
*turning down a woman for a job featuring physical labour, believing only men are qualified for that type of work
*changing a term of the job to interfere with a worker’s parental or family duty
*changing a term of the job to interfere with a worker’s religious beliefs
*harassing (or letting other workers harass) a worker over their race, religion, sex or other protected ground
*requiring a worker with a drug addiction to undergo drug testing (unless the employer can justify the testing)
*failing to take reasonable steps to accommodate a deaf employee
*firing a worker because of a mental or physical disability

===The employer’s duty to accommodate===
Employers must also '''accommodate''' workers to ensure they are treated fairly. Employers must take all reasonable steps to avoid a negative effect on a worker based on a protected characteristic. For example, a job requirement to work on a certain day may hurt someone whose religion prevents them from working on that day. Or, a person with a disability may not be able to perform a certain part of their job because of their disability. In these cases, the employer must make adjustments to accommodate these differences. They must take reasonable steps to remove the harm and support the worker to do the job.

====To the point of undue hardship====
The employer’s duty to accommodate isn’t limitless. It extends only to the point where the accommodation starts causing the employer “'''undue hardship'''”.

Many human rights cases involve complaints that an employer has not accommodated a worker’s disability. The ''Human Rights Code'' does not define disability. Cases have said a disability is involuntary, is somewhat permanent, and impairs a person's ability to carry out the normal functions of life. Accommodation requires an employer and a worker (''and'' a worker’s union, if they are in one) to find a practical solution to accommodate the worker’s disability but not create an undue hardship on the employer. An employer may have to accept some hardship. That hardship might involve expense, inconvenience, or disruption — as long as it does not unduly interfere with the business.

===An exception for a “bona fide occupational requirement”===
An employer may be able to make a decision (such as refusing to hire or promote you) that appears to be discriminatory if they can show the decision was based on a '''bona fide occupational requirement'''. Such a requirement is a legitimate job-related qualification where the employer cannot accommodate the protected ground without facing undue hardship. For example, a women’s health club could probably limit work cleaning a women’s locker room while women are present to a female cleaner, but if the job involved cleaning after hours, it probably could not limit the job to women.

===The protection extends to union membership, employment agencies, and job ads===
A '''trade union, employers' organization or occupational association''' can’t discriminate against you. For example, a union can’t use any of the protected grounds in the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec14_smooth Human Rights Code]'' to stop you from joining the union, to expel or suspend you, or otherwise discriminate against you.

An '''employment agency''' can’t refuse to refer you for employment based on a protected ground.

As well, under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec11_smooth the Code], the protection extends to '''job ads'''. Employers cannot advertise in connection with a job a limitation, specification, or preference based on a protected ground. The exception is if the limitation, specification, or preference is based on a bona fide job requirement. Job ads should describe the job and the necessary skills and training, not a certain type of person.

===If someone discriminates against you===
If someone discriminates against you in the workplace, you have options.

====Option 1. Make a human rights complaint====
You can '''make a complaint''' to the BC Human Rights Tribunal. The tribunal deals with complaints under the ''[http://canlii.ca/t/843q Human Rights Code]''. It operates like a court but is less formal. It has staff who help people resolve complaints without going to a hearing. If that’s not possible, they hold a hearing to decide if there was discrimination.

You must file a complaint with the tribunal within '''six months''' of when the discrimination happened. You can get a complaint form from the tribunal’s website at [http://www.bchrt.gov.bc.ca/complaint-process/complain/file.htm bchrt.bc.ca] or by calling 604-775-2000 in Vancouver or 1-888-440-8844 elsewhere in BC. Our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]] explains the steps in making a human rights complaint. We explain what to expect from the process shortly.

====Option 2. Complain to the Employment Standards Branch====
If your employer didn’t follow the ;;[http://canlii.ca/t/8405 Employment Standards Act]'', you can '''make a complaint''' to the Employment Standards Branch, the government office that administers that Act. It covers some situations that can also bring the ''Human Rights Code'' into play. For example, under the ''Employment Standards Act'', an employer cannot fire you because you are pregnant. The Employment Standards Branch has different powers than does the Human Rights Tribunal. See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] for more details on making a complaint to the Branch.

====Option 3. Sue for wrongful dismissal====
If you lose your job because of discrimination, you may decide to sue in court for '''wrongful dismissal'''. You may be able to recover more in damages than in a human rights complaint. On the other hand, bringing a lawsuit is an involved and expensive process. See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] and [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]] for more details.

====Option 4. If you belong to a union====
If you belong to a union, one option is to ask the union to file a '''grievance''' about the discrimination.

{| class="wikitable"
|align="left"|'''Tip'''
If you complain to the Human Rights Tribunal and also pursue another option (by filing a union grievance, making a complaint under the ''Employment Standards Act'', or suing the employer for wrongful dismissal), the tribunal can wait until the other process is finished before dealing with your complaint. It is a good idea to seek '''legal advice''' on your options. See our information on [[Low Cost and Free Legal Services (Script 430)|free and low-cost legal help (no. 430)]].
|}

===If you make a human rights complaint===
If you make a complaint to the BC Human Rights Tribunal, you must show that the employer’s conduct (or the conduct of another person) had an '''adverse impact''' on you and that one of the protected grounds was at least a factor in the adverse impact.

If you show that, the employer can try to prove their conduct was '''justified''' (a bona fide occupational requirement).

====The tribunal considers your complaint====
If it finds the complaint may involve a violation of the ''Human Rights Code'', the tribunal will ask the employer to reply to your complaint. The tribunal can try to help you and the employer settle the complaint. If that is not possible, the tribunal may hold a hearing.

====Possible awards====
If the tribunal decides your complaint is justified, it can order the employer or other person to stop discriminating and give you your job back. Or it can order them to give you the right to compete for a job.

The tribunal can also order the employer or other person to pay you money ('''compensation''') for lost income (including wages and disability and other benefits) and expenses. The tribunal can also order the employer or other person to pay you compensation for injury to your dignity, feelings, and self-respect. In most cases, these damages are under $10,000, but some damage awards have been much higher, up to $75,000.

{| class="wikitable"
|align="left"|'''Tip'''
Write down anything the employer says or does that may be discriminatory. Keep your written record — it may be useful evidence later.
|}

==Common questions==

===In a job interview, I was asked about my religious beliefs. Is that allowed?===
In a job interview, you can be asked about “protected ground” characteristics as long as the questions aren’t discriminatory. This will depend on the context. For example, you may be asked, as a casual icebreaker, where you’re from. But this question can’t be part of the formal interview.

===Are men and women supposed to get the same pay for similar work?===
Yes. Generally, employers must not pay a man more than a woman for similar, or substantially similar, work. The reverse of this is also true: employers must not pay a woman more than a man for similar or substantially similar work. Whether work is similar, or substantially similar, depends on many things, including the skill, effort, and responsibility a job requires. Employers can pay different wages to different people based on seniority, merit, and productivity.

===If there a mandatory retirement age in BC?===
No. The ''Human Rights Code'' protects all people 19 and over from discrimination because of their age. Among other things, this means you cannot be forced to retire because of your age. The exception is where an employer can show that an age limit is a bona fide occupational requirement, because of the duties or needs of the work or because of safety issues or dangers.

===Can an employer make me give up my rights under the ''Human Rights Code''?===
No. The Code does not let people agree to give up their rights. An employer cannot ask you to sign a contract that says the employer can discriminate against you.

===Are there time limits for filing a human rights complaint or suing?===
Yes, there are time limits in both cases. You have six months from when the discrimination occurs to file a complaint with the Human Rights Tribunal. If you wait longer than six months, your complaint may still be accepted if the tribunal believes it is in the public interest to accept it and no party will be prejudiced because of the delay. There are also time limits for suing in court — see our information on [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]] for details.

==Get help==

===With a discrimination complaint===
The '''BC Human Rights Clinic''' may be able to help you file a complaint with the Human Rights Tribunal and help you at a hearing. The clinic is operated by the Community Legal Assistance Society (CLAS).
:Telephone: 604-622-1100 in Vancouver
:Toll-free: 1-855-685-6222
:Web: [https://www.bchrc.net bchrc.net]

In the Greater Victoria area, the '''University of Victoria Law Centre''' provides help for eligible human rights complainants and respondents.
:Telephone: 250-385-1221
:Web: [http://thelawcentre.ca/ thelawcentre.ca]

[updated June 2018]

'''The above was last reviewed for legal accuracy by Bradley Martyniuk, Lindsay Kenney, and Katherine Hardie, BC Human Rights Tribunal.'''

----
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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Protection Against Job Discrimination

2019-03-03T07:02:01Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Being treated differently than others based on personal characteristics is called discrimination. The law protects you from discrimination at work. Learn your rights and options if someone discriminates against you.

==Understand your legal rights==

===You are protected against discrimination in your job===
If you’re treated differently than others based on personal characteristics such as the colour of your skin or your sex, it’s called '''discrimination'''. Discrimination can take many forms. Harassment (conduct a reasonable person would consider objectionable or unwelcome), negative differential treatment, or getting unequal pay for similar work are all examples of discrimination.

There are federal and provincial human rights laws that protect workers from discrimination in the workplace. Most employers in BC are covered by the province’s ''[http://canlii.ca/t/843q Human Rights Code]''. But BC employers in certain industries that are federally regulated, such as banks and airlines, are covered by the ''[http://canlii.ca/t/7vh5 Canadian Human Rights Act]''. This law applies throughout the country. The federal law also applies to employers in the federal public service.

The guidance below focuses on your rights under BC’s law. However, many of the same rules apply to workers covered by the federal law.

{| class="wikitable"
|align="left"|'''Tip'''
If your situation involves federal law, contact the [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] at 1-888-214-1090. If you don’t know whether federal or provincial law applies, you can contact the Commission or the BC Human Rights Tribunal, which deals with complaints under the BC ''Human Rights Code''. Either agency can tell you which one can handle your complaint.
|}

===Employers must not discriminate based on protected grounds===
Under the BC ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec13_smooth Human Rights Code]'', an employer must not discriminate against a worker based on these personal characteristics:
*their race, colour, ancestry, or place of origin
*their age (as long as they are age 19 or older)
*their sex (including pregnancy), sexual orientation, or gender identity or expression
*their marital or family status (including family obligations of one person to another, not just parent–child)
*their political belief or religion
*any physical disability (including HIV and AIDS) or mental disability
*any criminal convictions that are unrelated to the job

These are called '''protected grounds'''. You can not be treated differently than others in the workplace based on a protected ground.

====This protection applies in all aspects of employment====
The protection against discrimination applies in hiring, firing, wages, benefits, hours, and other terms and conditions of work. This means an employer cannot factor a protected ground into:
*not hiring you,
*not promoting you,
*firing you, or
*discriminating in some other way against you in your job.

The protected ground does not need to be the only or main reason for a decision or action by an employer. It is discrimination if the ground is a factor in the decision or action. For example, if you weren’t hired in part because of your religion or sex, that’s discrimination.

The protection includes the workplace environment. Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace.

====Examples of job discrimination====
Examples of job discrimination include an employer:
*turning down a woman for a job featuring physical labour, believing only men are qualified for that type of work
*changing a term of the job to interfere with a worker’s parental or family duty
*changing a term of the job to interfere with a worker’s religious beliefs
*harassing (or letting other workers harass) a worker over their race, religion, sex or other protected ground
*requiring a worker with a drug addiction to undergo drug testing (unless the employer can justify the testing)
*failing to take reasonable steps to accommodate a deaf employee
*firing a worker because of a mental or physical disability

===The employer’s duty to accommodate===
Employers must also '''accommodate''' workers to ensure they are treated fairly. Employers must take all reasonable steps to avoid a negative effect on a worker based on a protected characteristic. For example, a job requirement to work on a certain day may hurt someone whose religion prevents them from working on that day. Or, a person with a disability may not be able to perform a certain part of their job because of their disability. In these cases, the employer must make adjustments to accommodate these differences. They must take reasonable steps to remove the harm and support the worker to do the job.

====To the point of undue hardship====
The employer’s duty to accommodate isn’t limitless. It extends only to the point where the accommodation starts causing the employer “'''undue hardship'''”.

Many human rights cases involve complaints that an employer has not accommodated a worker’s disability. The ''Human Rights Code'' does not define disability. Cases have said a disability is involuntary, is somewhat permanent, and impairs a person's ability to carry out the normal functions of life. Accommodation requires an employer and a worker (and a worker’s union, if they are in one) to find a practical solution to accommodate the worker’s disability but not create an undue hardship on the employer. An employer may have to accept some hardship. That hardship might involve expense, inconvenience, or disruption — as long as it does not unduly interfere with the business.

===An exception for a “bona fide occupational requirement”===
An employer may be able to make a decision (such as refusing to hire or promote you) that appears to be discriminatory if they can show the decision was based on a '''bona fide occupational requirement'''. Such a requirement is a legitimate job-related qualification where the employer cannot accommodate the protected ground without facing undue hardship. For example, a women’s health club could probably limit work cleaning a women’s locker room while women are present to a female cleaner, but if the job involved cleaning after hours, it probably could not limit the job to women.

===The protection extends to union membership, employment agencies, and job ads===
A '''trade union, employers' organization or occupational association''' can’t discriminate against you. For example, a union can’t use any of the protected grounds in the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec14_smooth Human Rights Code]'' to stop you from joining the union, to expel or suspend you, or otherwise discriminate against you.

An '''employment agency''' can’t refuse to refer you for employment based on a protected ground.

As well, under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec11_smooth the Code], the protection extends to '''job ads'''. Employers cannot advertise in connection with a job a limitation, specification, or preference based on a protected ground. The exception is if the limitation, specification, or preference is based on a bona fide job requirement. Job ads should describe the job and the necessary skills and training, not a certain type of person.

===If someone discriminates against you===
If someone discriminates against you in the workplace, you have options.

====Option 1. Make a human rights complaint====
You can '''make a complaint''' to the BC Human Rights Tribunal. The tribunal deals with complaints under the ''[http://canlii.ca/t/843q Human Rights Code]''. It operates like a court but is less formal. It has staff who help people resolve complaints without going to a hearing. If that’s not possible, they hold a hearing to decide if there was discrimination.

You must file a complaint with the tribunal within '''six months''' of when the discrimination happened. You can get a complaint form from the tribunal’s website at [http://www.bchrt.gov.bc.ca/complaint-process/complain/file.htm bchrt.bc.ca] or by calling 604-775-2000 in Vancouver or 1-888-440-8844 elsewhere in BC. Our information on [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]] explains the steps in making a human rights complaint. We explain what to expect from the process shortly.

====Option 2. Complain to the Employment Standards Branch====
If your employer didn’t follow the ;;[http://canlii.ca/t/8405 Employment Standards Act]'', you can '''make a complaint''' to the Employment Standards Branch, the government office that administers that Act. It covers some situations that can also bring the ''Human Rights Code'' into play. For example, under the ''Employment Standards Act'', an employer cannot fire you because you are pregnant. The Employment Standards Branch has different powers than does the Human Rights Tribunal. See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] for more details on making a complaint to the Branch.

====Option 3. Sue for wrongful dismissal====
If you lose your job because of discrimination, you may decide to sue in court for '''wrongful dismissal'''. You may be able to recover more in damages than in a human rights complaint. On the other hand, bringing a lawsuit is an involved and expensive process. See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] and [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]] for more details.

====Option 4. If you belong to a union====
If you belong to a union, one option is to ask the union to file a '''grievance''' about the discrimination.

{| class="wikitable"
|align="left"|'''Tip'''
If you complain to the Human Rights Tribunal and also pursue another option (by filing a union grievance, making a complaint under the ''Employment Standards Act'', or suing the employer for wrongful dismissal), the tribunal can wait until the other process is finished before dealing with your complaint. It is a good idea to seek '''legal advice''' on your options. See our information on [[Low Cost and Free Legal Services (Script 430)|free and low-cost legal help (no. 430)]].
|}

===If you make a human rights complaint===
If you make a complaint to the BC Human Rights Tribunal, you must show that the employer’s conduct (or the conduct of another person) had an '''adverse impact''' on you and that one of the protected grounds was at least a factor in the adverse impact.

If you show that, the employer can try to prove their conduct was '''justified''' (a bona fide occupational requirement).

====The tribunal considers your complaint====
If it finds the complaint may involve a violation of the ''Human Rights Code'', the tribunal will ask the employer to reply to your complaint. The tribunal can try to help you and the employer settle the complaint. If that is not possible, the tribunal may hold a hearing.

====Possible awards====
If the tribunal decides your complaint is justified, it can order the employer or other person to stop discriminating and give you your job back. Or it can order them to give you the right to compete for a job.

The tribunal can also order the employer or other person to pay you money ('''compensation''') for lost income (including wages and disability and other benefits) and expenses. The tribunal can also order the employer or other person to pay you compensation for injury to your dignity, feelings, and self-respect. In most cases, these damages are under $10,000, but some damage awards have been much higher, up to $75,000.

{| class="wikitable"
|align="left"|'''Tip'''
Write down anything the employer says or does that may be discriminatory. Keep your written record — it may be useful evidence later.
|}

==Common questions==

===In a job interview, I was asked about my religious beliefs. Is that allowed?===
In a job interview, you can be asked about “protected ground” characteristics as long as the questions aren’t discriminatory. This will depend on the context. For example, you may be asked, as a casual icebreaker, where you’re from. But this question can’t be part of the formal interview.

===Are men and women supposed to get the same pay for similar work?===
Yes. Generally, employers must not pay a man more than a woman for similar, or substantially similar, work. The reverse of this is also true: employers must not pay a woman more than a man for similar or substantially similar work. Whether work is similar, or substantially similar, depends on many things, including the skill, effort, and responsibility a job requires. Employers can pay different wages to different people based on seniority, merit, and productivity.

===If there a mandatory retirement age in BC?===
No. The ''Human Rights Code'' protects all people 19 and over from discrimination because of their age. Among other things, this means you cannot be forced to retire because of your age. The exception is where an employer can show that an age limit is a bona fide occupational requirement, because of the duties or needs of the work or because of safety issues or dangers.

===Can an employer make me give up my rights under the ''Human Rights Code''?===
No. The Code does not let people agree to give up their rights. An employer cannot ask you to sign a contract that says the employer can discriminate against you.

===Are there time limits for filing a human rights complaint or suing?===
Yes, there are time limits in both cases. You have six months from when the discrimination occurs to file a complaint with the Human Rights Tribunal. If you wait longer than six months, your complaint may still be accepted if the tribunal believes it is in the public interest to accept it and no party will be prejudiced because of the delay. There are also time limits for suing in court — see our information on [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]] for details.

==Get help==

===With a discrimination complaint===
The '''BC Human Rights Clinic''' may be able to help you file a complaint with the Human Rights Tribunal and help you at a hearing. The clinic is operated by the Community Legal Assistance Society (CLAS).
:Telephone: 604-622-1100 in Vancouver
:Toll-free: 1-855-685-6222
:Web: [https://www.bchrc.net bchrc.net]

In the Greater Victoria area, the '''University of Victoria Law Centre''' provides help for eligible human rights complainants and respondents.
:Telephone: 250-385-1221
:Web: [http://thelawcentre.ca/ thelawcentre.ca]

[updated June 2018]

'''The above was last reviewed for legal accuracy by Bradley Martyniuk, Lindsay Kenney, and Katherine Hardie, BC Human Rights Tribunal.'''

----
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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Appealing a Workers' Compensation Decision

2019-03-03T06:38:04Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
If you disagree with a decision on a workers’ compensation claim, you can request a review of the decision. If you’re still not satisfied, you can appeal to a tribunal.

==Understand your legal rights==

===Challenging a decision of Work Safe BC===
'''Workers’ compensation''' is a BC government program run by [http://www.worksafebc.com/ Work Safe BC]. It pays benefits to workers if they suffer a workplace injury or disease, and promotes health and safety in the workplace. (We explain the [[Workers' Compensation (Script 285)|workers’ compensation program in no. 285]].)

If you disagree with a decision Work Safe BC makes on claims, assessments, or health and safety matters, you can request a '''review''' of the decision. If you’re still not satisfied, you can appeal to a tribunal. We explain the process shortly.

===You can get help or advice===
You can challenge a Work Safe BC decision on your own. Or you might want to ask for assistance from someone familiar with the workers’ compensation system, such as a union representative, a lawyer, or a workers’ adviser.

If you are a union member, discuss your case with the union. They may have a representative who can help you, or they may hire a lawyer for you in a serious case. You may want to hire your own lawyer anyway. Make sure the lawyer has experience in workers’ compensation.

If you don’t get help from a union or a lawyer, you should contact the '''Workers’ Advisers Office''' of the BC Ministry of Labour. Workers’ advisers are separate from Work Safe BC and there’s no charge for their services. They help workers apply for reviews and appeals, and they have detailed information on their website. Visit [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers] or call 604-713-0360 in Vancouver and 1-800-663-4261 elsewhere in BC.

For employers, the [http://www.gov.bc.ca/employersadvisers Employers’ Advisers Office] provides independent advice, assistance, and representation to employers concerning workers' compensation issues. There is no charge for their services.

==The steps in the process==

===Step 1. Ask for a review===
The first step in challenging a Work Safe BC decision is to ask for a '''review''' of the decision. The Work Safe BC website at [https://www.worksafebc.com/en/review-appeal worksafebc.com] explains how to ask for a review. The phone numbers for the review division are 604-214-5411 in the Lower Mainland and 1-888-922-8804 elsewhere in BC.

In a few scenarios, you can’t ask for a review but need to appeal directly to the Workers’ Compensation Appeal Tribunal. For example, if you are challenging a decision to reopen (or not reopen) a matter, or challenging a decision on a discriminatory action complaint (where an employer punished you for raising safety concerns at work). Appeals are explained shortly.

Because Work Safe BC routinely issues some decisions orally, the review division accepts review requests from oral decisions.

====Time limit to ask for a review====
A worker must ask for a review within '''90 days''' of the date of Work Safe BC’s decision letter or, in some cases, within 90 days of the date that Work Safe BC told the worker its decision orally or stopped paying them.

An employer who wants to ask for a review of a decision or an order issued by Work Safe BC on an occupational health and safety matter, has '''45 days''' to ask for a review.

{| class="wikitable"
|align="left"|'''Tip'''
While your review is being considered, if you feel that Work Safe BC has treated you unfairly, you can also complain to Work Safe BC’s Fair Practices Office and to the [http://www.ombudsman.bc.ca/ Ombudsperson of BC] (who can be reached at 1-800-567-3247).
|}

===Step 2. Prepare your case===
After you request a review, you will receive a letter setting a time to make '''written submissions'''. Work Safe BC’s review division does not normally hold oral hearings.

To prepare your case, carefully review your Work Safe BC file. You have the right to see it and you should automatically get it when you ask for a review.

====What you need to show====
Reviews and appeals are serious. In bringing a review or appeal of a Work Safe BC decision, you need to show clearly what’s wrong with the decision. You may need new evidence to support your appeal. You may need more evidence than you had when you first made your claim, such as medical evidence from doctors and specialists. It’s important to get all the evidence you need, as soon as you can.

===Step 3. Appeal the review decision===
The review decision is usually made within 150 days. If you disagree with the review decision, you can usually '''appeal''' to the Workers’ Compensation Appeal Tribunal. You cannot appeal review decisions on some issues, such as vocational rehabilitation benefits, certain types of disability awards, and whether benefits are paid as a lump sum.

====Time limit to appeal====
If you decide to appeal, you must do so within '''30 days''' of the decision by the review division. (For cases that go directly to the tribunal, the time limit is 90 days.)

The tribunal’s website at [http://www.wcat.bc.ca/research/wcat_publications/appeal_guides/index.html wcat.bc.ca] has information guides on how to appeal and how to prepare for an appeal hearing.

You can appeal by phone or letter, or you can use the '''notice of appeal''' form on the tribunal’s website. If you appeal by phone, you must follow it up with the form within 21 days. The tribunal’s phone numbers are 604-664-7800 in the Lower Mainland and toll-free 1-800-663-2782 elsewhere in BC.

====The tribunal will follow up with you====
The tribunal will send you a letter to confirm it received your appeal and give you an appeal number. You should always include this appeal number, and your Work Safe BC file number, in any material you submit. The tribunal will ask you to make your submissions in writing or tell you the date for your oral hearing. Normally, the tribunal decides a case within 180 days of when it receives your claim file from Work Safe BC.

The tribunal must apply the law and the policies of Work Safe BC that apply to your appeal. You should find out what policies apply to your case. You can see [http://www.wcat.bc.ca/search/decision_search.aspx previous tribunal decisions] on its website.

==Common questions==

===How can I get a copy of my claims file?===
Through the Work Safe BC website, workers can view all the information associated with their claim. You will need your claim number and your personal access number. You can also request a copy of your claim file from Work Safe BC. You can send a written '''request for disclosure''' form, available on the [https://www.worksafebc.com/en/claims/manage-claim/request-copy-your-claim-file Work Safe BC website], to:
:Disclosure Department
:Work Safe BC
:PO Box 4700 Stn Terminal
:Vancouver BC V6B 1J1
:Fax: 604-233-9777

All your personal information is usually in your claim file, but sometimes other Work Safe BC records also have personal information. To see these records, send a written request to:
:Freedom of Information and Protection of Privacy Office
:Work Safe BC
:PO Box 2310 Stn Terminal
:Vancouver, BC V6B 3W5
:Phone: 1-866-266-9405
:Fax: 604-279-7401

==Get help==

===With more information===
The '''Work Safe BC''' website includes extensive information on workers’ compensation benefits, how to apply for benefits, and the process to review or appeal a decision.
:Telephone: 604-231-8888 in the Lower Mainland
:Toll-free: 1-888-967-5377
:Web: [http://www.worksafebc.com/ worksafebc.com]

The '''Workers’ Advisers Office''' is a government office that helps workers with claims for workers’ compensation benefits. They are separate from Work Safe BC and there’s no charge for their services.
:Telephone: 604-713-0360 in Vancouver
:Toll-free: 1-800-663-4261
:Web: [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers]

[updated January 2018]

'''The above was last reviewed for legal accuracy by [http://www.wcat.bc.ca/index.aspx Tim Martiniuk], Workers’ Compensation Appeal Tribunal (WCAT).'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Workers' Compensation

2019-03-03T06:25:29Z

Dial-A-Law: /* With a claim */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Getting hurt or ill on the job not only impacts your health, but can leave you without a source of income. That’s where British Columbia’s workers’ compensation program comes in.

==Understand the legal framework==

===Workers’ compensation pays injured workers and promotes workplace safety===
'''Workers’ compensation''' is a BC government program under the ''[http://canlii.ca/t/84g2 Workers Compensation Act]''. It is run by [http://www.worksafebc.com/ Work Safe BC] and is paid for by employers. The program pays workers for some of their lost income and certain expenses if they suffer a workplace injury or disease — regardless of who was at fault. The program pays a worker’s family if the worker dies from the injury or disease.

The program also helps injured workers get back to work. As well, it promotes health and safety in the workplace, including preventing and responding to workplace bullying and harassment (including sexual harassment).

===Who can get workers’ compensation===
The workers’ compensation program covers almost all workers in British Columbia, both full- and part-time, including office workers, farm workers, performers, and domestic workers.

Unregistered labour contractors may also be entitled to benefits. Independent contractors can register with the program for personal optional protection. If they don’t do this, they are not entitled to compensation for workplace injuries or diseases.

If you suffer a workplace injury or disease, you may be able to get a range of disability benefits, health care benefits, and vocational rehabilitation benefits. We explain the various types of benefits shortly.

A workplace injury or disease can include a mental disorder. For example, a worker who is sexually harassed at work and suffers a mental disorder from it, may be able to get compensation (even if the harassment did not involve a physical injury).

===Benefits if you suffer a temporary disability===
If you suffer a temporary disability, you can qualify for '''short-term disability benefits''' and '''wage loss benefits'''.

These benefits pay you, at least partly, for income you lose because of a workplace injury or disease. If you are injured and unable to work, the benefits are usually 90% of your net wages at the time of your injury or disease. These benefits pay you for lost income, up to a maximum wage (adjusted each year). If you remain disabled after 10 weeks, Work Safe BC may recalculate your benefits based on your net income in the 12 months before your injury or disease.

Wage loss benefits continue until you are no longer temporarily disabled or your condition becomes stable.

===Benefits if you are permanently disabled===
If you are permanently disabled, totally or partly, you may be able to get '''permanent disability benefits''' and '''retirement benefits'''.

Work Safe BC won’t decide about any permanent disability until your condition becomes stable. “Stable” means your condition stays the same and the medical evidence indicates it will probably not get any better or worse over the next 12 months.

The focus is on whether and how your condition impairs your future earning capacity. If Work Safe BC finds it does, they look at providing a permanent disability award.

====How the benefits are calculated====
Permanent disability benefits are paid in one of two ways: a “permanent functional impairment” award (called a PFI award) or a “loss of earnings” award (called an LOE award). Usually, Work Safe BC pays a PFI award, to compensate you based on the kind of injury you have. But if Work Safe BC finds that a PFI award does not properly compensate you — because your disability reduces your ability to continue working in your occupation to an exceptional extent — it may pay an LOE award.

====How the benefits are paid====
Normally, if long-term benefits are more than $200 a month, they are paid monthly. If benefits are less than $200 a month, you will probably get a lump-sum payout. Even if Work Safe BC plans to pay your benefits monthly, you can apply for a lump-sum payout of all or part of your award.

===Health care and vocational rehabilitation benefits===
'''Health care benefits''' pay for doctors, hospitals, nursing care, home care, prescription drugs, and other health care professionals like physiotherapists, dentists, and chiropractors. They also cover other expenses, including medical supplies, appliances like crutches, hearing aids, dentures, and eyeglasses, as well as modifications to your home, vehicles, and workplace.

If Work Safe BC decides you cannot return to your pre-injury job because of your injury and your employer cannot offer a modified job, you may be entitled to '''vocational rehabilitation services'''. These benefits are for vocational retraining, workplace redesign or job modification, training on the job, and job search activity.

{| class="wikitable"
|align="left"|'''Tip'''
If you suffer a workplace injury or disease that eventually forces you to change your occupation, you should think about your future educational and vocational needs. You should ask Work Safe BC for rehabilitation guidance to help you plan your future. You have to take charge of your own rehabilitation. If you have a good idea of what you want, you explain it, and it is appropriate, the more likely you are to get it.
|}

===Benefits for families of workers===
Families of workers who are killed on the job or die from a workplace injury or disease, may qualify for benefits.

The possible benefits include:
*A monthly pension benefit for the surviving spouse, based on the worker's earnings. This benefit continues for the spouse's lifetime.
*A monthly benefit for a dependent child up to the age of 19. Benefits may continue to age 25 if the child regularly attends post-secondary school.
*Grief and vocational counselling for the surviving spouse, and grief counselling for any dependent children.
*Funeral benefits.

==How to apply for benefits==

===Step 1. Report the injury or illness immediately===
If you suffer a workplace injury or illness, report it immediately to your employer, your doctor and Work Safe BC. You can report the injury to Work Safe BC:
*By phone by calling Teleclaim at 1-888-967-5377.
*Online at [https://www.worksafebc.com/en/claims/report-workplace-injury-illness/how-workers-report-workplace-injury-illness worksafebc.com], by selecting “Report a workplace injury or disease” to input your information.
*By completing the print '''application for compensation and report of injury''' form, and mailing or faxing it to Work Safe BC. You can get the print form from your employer, your union, or [https://www.worksafebc.com/en/resources/claims/forms/application-for-compensation-and-report-of-injury-or-occupational-disease-form-6?lang=en Work Safe BC].

Your employer and your doctor must report your injury or disease to Work Safe BC within three days of when you tell them about it.

===Step 2. Apply for benefits===
You must apply to Work Safe BC if you want benefits. Just reporting an injury to your employer and doctor is not enough. You can apply for benefits on the [https://www.worksafebc.com/en/claims/report-workplace-injury-illness/how-workers-report-workplace-injury-illness Work Safe BC website], or by completing the '''application for compensation and report of injury''' form, and mailing or faxing it to Work Safe BC.

You have '''one year''' from your accident or disease to apply for compensation. After that, you may lose your right to benefits unless special circumstances stopped you from applying on time.

====What happens when you apply====
A Work Safe BC officer will examine your claim and decide if you get benefits, and if so, the type and amount.

A decision on whether you get benefits can be complicated. You can discuss your case with your union, a lawyer, or the '''Workers’ Advisers Office'''. Workers’ advisers work for the Ministry of Labour to help workers with their claims. They are separate from Work Safe BC and there’s no charge for their services. To reach the Workers’ Advisers Office, visit [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers] or call 604-713-0360 in Vancouver and 1-800-663-4261 elsewhere in BC.

===Step 3. Ask for a review===
If Work Safe BC decides you are not eligible for benefits, or if you don’t understand its decision, ask the Work Safe BC officer handling your claim for an explanation. Ask for a decision letter if you didn’t already get one. If you’re still not satisfied, you can ask Work Safe BC for a '''review of the decision'''.

In a few scenarios, you can’t ask for a review but need to appeal directly to the Workers’ Compensation Appeal Tribunal. For example, if you are challenging a decision to reopen (or not reopen) a matter, or challenging a decision on a discriminatory action complaint (where an employer punished you for raising safety concerns at work). Appeals are explained shortly.

====Time limit to ask for review====
You must ask for a review within '''90 days''' of the date of Work Safe BC’s decision letter or, in some cases, within 90 days of the date when Work Safe BC told you its decision orally or stopped paying you.

====The review process====
When you ask for a review, Work Safe BC should automatically give you a copy of your claim file and you can use the information in it for your review. After you request a review, you will receive a letter setting a time to make written submissions. The review division does not normally hold oral hearings.

The review division considers the written submissions and Work Safe BC’s file and gives its decision, usually within 150 days. The [http://worksafebc.com/claims/review_and_appeals/default.asp Work Safe BC website] has more information on reviews. The phone numbers for the review division are 604-214-5411 in the Lower Mainland and 1-888-922-8804 elsewhere in BC.

{| class="wikitable"
|align="left"|'''Tip'''
While your review is being considered, if you feel that Work Safe BC has treated you unfairly, you can also complain to Work Safe BC’s Fair Practices Office and to the [http://www.ombudsman.bc.ca/ Ombudsperson of BC] (who can be reached at 1-800-567-3247).
|}

===Step 4. Appeal the review decision===
If you disagree with the decision on the review, you can usually '''appeal''' to the [http://www.wcat.bc.ca/ Workers’ Compensation Appeal Tribunal]. You cannot appeal review decisions on some issues, such as vocational rehabilitation benefits, certain types of disability awards, and whether benefits are paid as a lump sum.

If you decide to appeal, you must do so within '''30 days''' of the decision of the review division. For details on the process, see our information on [[Appealing a Workers' Compensation Decision (Script 286)|appealing a workers’ compensation decision (no. 286)]].

==Get help==

===With a claim===
The '''Work Safe BC''' website includes extensive information on workers’ compensation benefits, how to apply for benefits, and the process to review or appeal a decision.
:Telephone: 604-231-8888 in the Lower Mainland
:Toll-free: 1-888-967-5377
:Web: [http://www.worksafebc.com/ worksafebc.com]

The '''Workers’ Advisers Office''' is a government office that helps workers with claims for workers’ compensation benefits. They are separate from Work Safe BC and there’s no charge for their services.
:Telephone: 604-713-0360 in Vancouver
:Toll-free: 1-800-663-4261
:Web: [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers]

[updated January 2018]

'''The above was last reviewed for legal accuracy by [http://www.wcat.bc.ca/index.aspx Tim Martiniuk], Workers’ Compensation Appeal Tribunal (WCAT).'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Workers' Compensation

2019-03-03T06:24:58Z

Dial-A-Law: /* With a claim */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Getting hurt or ill on the job not only impacts your health, but can leave you without a source of income. That’s where British Columbia’s workers’ compensation program comes in.

==Understand the legal framework==

===Workers’ compensation pays injured workers and promotes workplace safety===
'''Workers’ compensation''' is a BC government program under the ''[http://canlii.ca/t/84g2 Workers Compensation Act]''. It is run by [http://www.worksafebc.com/ Work Safe BC] and is paid for by employers. The program pays workers for some of their lost income and certain expenses if they suffer a workplace injury or disease — regardless of who was at fault. The program pays a worker’s family if the worker dies from the injury or disease.

The program also helps injured workers get back to work. As well, it promotes health and safety in the workplace, including preventing and responding to workplace bullying and harassment (including sexual harassment).

===Who can get workers’ compensation===
The workers’ compensation program covers almost all workers in British Columbia, both full- and part-time, including office workers, farm workers, performers, and domestic workers.

Unregistered labour contractors may also be entitled to benefits. Independent contractors can register with the program for personal optional protection. If they don’t do this, they are not entitled to compensation for workplace injuries or diseases.

If you suffer a workplace injury or disease, you may be able to get a range of disability benefits, health care benefits, and vocational rehabilitation benefits. We explain the various types of benefits shortly.

A workplace injury or disease can include a mental disorder. For example, a worker who is sexually harassed at work and suffers a mental disorder from it, may be able to get compensation (even if the harassment did not involve a physical injury).

===Benefits if you suffer a temporary disability===
If you suffer a temporary disability, you can qualify for '''short-term disability benefits''' and '''wage loss benefits'''.

These benefits pay you, at least partly, for income you lose because of a workplace injury or disease. If you are injured and unable to work, the benefits are usually 90% of your net wages at the time of your injury or disease. These benefits pay you for lost income, up to a maximum wage (adjusted each year). If you remain disabled after 10 weeks, Work Safe BC may recalculate your benefits based on your net income in the 12 months before your injury or disease.

Wage loss benefits continue until you are no longer temporarily disabled or your condition becomes stable.

===Benefits if you are permanently disabled===
If you are permanently disabled, totally or partly, you may be able to get '''permanent disability benefits''' and '''retirement benefits'''.

Work Safe BC won’t decide about any permanent disability until your condition becomes stable. “Stable” means your condition stays the same and the medical evidence indicates it will probably not get any better or worse over the next 12 months.

The focus is on whether and how your condition impairs your future earning capacity. If Work Safe BC finds it does, they look at providing a permanent disability award.

====How the benefits are calculated====
Permanent disability benefits are paid in one of two ways: a “permanent functional impairment” award (called a PFI award) or a “loss of earnings” award (called an LOE award). Usually, Work Safe BC pays a PFI award, to compensate you based on the kind of injury you have. But if Work Safe BC finds that a PFI award does not properly compensate you — because your disability reduces your ability to continue working in your occupation to an exceptional extent — it may pay an LOE award.

====How the benefits are paid====
Normally, if long-term benefits are more than $200 a month, they are paid monthly. If benefits are less than $200 a month, you will probably get a lump-sum payout. Even if Work Safe BC plans to pay your benefits monthly, you can apply for a lump-sum payout of all or part of your award.

===Health care and vocational rehabilitation benefits===
'''Health care benefits''' pay for doctors, hospitals, nursing care, home care, prescription drugs, and other health care professionals like physiotherapists, dentists, and chiropractors. They also cover other expenses, including medical supplies, appliances like crutches, hearing aids, dentures, and eyeglasses, as well as modifications to your home, vehicles, and workplace.

If Work Safe BC decides you cannot return to your pre-injury job because of your injury and your employer cannot offer a modified job, you may be entitled to '''vocational rehabilitation services'''. These benefits are for vocational retraining, workplace redesign or job modification, training on the job, and job search activity.

{| class="wikitable"
|align="left"|'''Tip'''
If you suffer a workplace injury or disease that eventually forces you to change your occupation, you should think about your future educational and vocational needs. You should ask Work Safe BC for rehabilitation guidance to help you plan your future. You have to take charge of your own rehabilitation. If you have a good idea of what you want, you explain it, and it is appropriate, the more likely you are to get it.
|}

===Benefits for families of workers===
Families of workers who are killed on the job or die from a workplace injury or disease, may qualify for benefits.

The possible benefits include:
*A monthly pension benefit for the surviving spouse, based on the worker's earnings. This benefit continues for the spouse's lifetime.
*A monthly benefit for a dependent child up to the age of 19. Benefits may continue to age 25 if the child regularly attends post-secondary school.
*Grief and vocational counselling for the surviving spouse, and grief counselling for any dependent children.
*Funeral benefits.

==How to apply for benefits==

===Step 1. Report the injury or illness immediately===
If you suffer a workplace injury or illness, report it immediately to your employer, your doctor and Work Safe BC. You can report the injury to Work Safe BC:
*By phone by calling Teleclaim at 1-888-967-5377.
*Online at [https://www.worksafebc.com/en/claims/report-workplace-injury-illness/how-workers-report-workplace-injury-illness worksafebc.com], by selecting “Report a workplace injury or disease” to input your information.
*By completing the print '''application for compensation and report of injury''' form, and mailing or faxing it to Work Safe BC. You can get the print form from your employer, your union, or [https://www.worksafebc.com/en/resources/claims/forms/application-for-compensation-and-report-of-injury-or-occupational-disease-form-6?lang=en Work Safe BC].

Your employer and your doctor must report your injury or disease to Work Safe BC within three days of when you tell them about it.

===Step 2. Apply for benefits===
You must apply to Work Safe BC if you want benefits. Just reporting an injury to your employer and doctor is not enough. You can apply for benefits on the [https://www.worksafebc.com/en/claims/report-workplace-injury-illness/how-workers-report-workplace-injury-illness Work Safe BC website], or by completing the '''application for compensation and report of injury''' form, and mailing or faxing it to Work Safe BC.

You have '''one year''' from your accident or disease to apply for compensation. After that, you may lose your right to benefits unless special circumstances stopped you from applying on time.

====What happens when you apply====
A Work Safe BC officer will examine your claim and decide if you get benefits, and if so, the type and amount.

A decision on whether you get benefits can be complicated. You can discuss your case with your union, a lawyer, or the '''Workers’ Advisers Office'''. Workers’ advisers work for the Ministry of Labour to help workers with their claims. They are separate from Work Safe BC and there’s no charge for their services. To reach the Workers’ Advisers Office, visit [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers] or call 604-713-0360 in Vancouver and 1-800-663-4261 elsewhere in BC.

===Step 3. Ask for a review===
If Work Safe BC decides you are not eligible for benefits, or if you don’t understand its decision, ask the Work Safe BC officer handling your claim for an explanation. Ask for a decision letter if you didn’t already get one. If you’re still not satisfied, you can ask Work Safe BC for a '''review of the decision'''.

In a few scenarios, you can’t ask for a review but need to appeal directly to the Workers’ Compensation Appeal Tribunal. For example, if you are challenging a decision to reopen (or not reopen) a matter, or challenging a decision on a discriminatory action complaint (where an employer punished you for raising safety concerns at work). Appeals are explained shortly.

====Time limit to ask for review====
You must ask for a review within '''90 days''' of the date of Work Safe BC’s decision letter or, in some cases, within 90 days of the date when Work Safe BC told you its decision orally or stopped paying you.

====The review process====
When you ask for a review, Work Safe BC should automatically give you a copy of your claim file and you can use the information in it for your review. After you request a review, you will receive a letter setting a time to make written submissions. The review division does not normally hold oral hearings.

The review division considers the written submissions and Work Safe BC’s file and gives its decision, usually within 150 days. The [http://worksafebc.com/claims/review_and_appeals/default.asp Work Safe BC website] has more information on reviews. The phone numbers for the review division are 604-214-5411 in the Lower Mainland and 1-888-922-8804 elsewhere in BC.

{| class="wikitable"
|align="left"|'''Tip'''
While your review is being considered, if you feel that Work Safe BC has treated you unfairly, you can also complain to Work Safe BC’s Fair Practices Office and to the [http://www.ombudsman.bc.ca/ Ombudsperson of BC] (who can be reached at 1-800-567-3247).
|}

===Step 4. Appeal the review decision===
If you disagree with the decision on the review, you can usually '''appeal''' to the [http://www.wcat.bc.ca/ Workers’ Compensation Appeal Tribunal]. You cannot appeal review decisions on some issues, such as vocational rehabilitation benefits, certain types of disability awards, and whether benefits are paid as a lump sum.

If you decide to appeal, you must do so within '''30 days''' of the decision of the review division. For details on the process, see our information on [[Appealing a Workers' Compensation Decision (Script 286)|appealing a workers’ compensation decision (no. 286)]].

==Get help==

===With a claim===
The '''Work Safe BC''' website includes extensive information on workers’ compensation benefits, how to apply for benefits, and the process to review or appeal a decision.
:Telephone: 604-231-8888 in the Lower Mainland
:Toll-free: 1-888-967-5377
:Web: [http://www.worksafebc.com/ worksafebc.com]

The '''Workers’ Advisers Office''' is a government office that helps workers with claims for workers’ compensation benefits. They are separate from Work Safe BC and there’s no charge for their services.
:Telephone: 604-713-0360 in Vancouver
:Toll-free: 1-800-663-4261
:Web: [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers]

[updated January 2018]

'''The above was last reviewed for legal accuracy by [http://www.wcat.bc.ca/index.aspx] Tim Martiniuk, Workers’ Compensation Appeal Tribunal (WCAT).'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Workers' Compensation

2019-03-03T06:23:59Z

Dial-A-Law: /* The review process */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Getting hurt or ill on the job not only impacts your health, but can leave you without a source of income. That’s where British Columbia’s workers’ compensation program comes in.

==Understand the legal framework==

===Workers’ compensation pays injured workers and promotes workplace safety===
'''Workers’ compensation''' is a BC government program under the ''[http://canlii.ca/t/84g2 Workers Compensation Act]''. It is run by [http://www.worksafebc.com/ Work Safe BC] and is paid for by employers. The program pays workers for some of their lost income and certain expenses if they suffer a workplace injury or disease — regardless of who was at fault. The program pays a worker’s family if the worker dies from the injury or disease.

The program also helps injured workers get back to work. As well, it promotes health and safety in the workplace, including preventing and responding to workplace bullying and harassment (including sexual harassment).

===Who can get workers’ compensation===
The workers’ compensation program covers almost all workers in British Columbia, both full- and part-time, including office workers, farm workers, performers, and domestic workers.

Unregistered labour contractors may also be entitled to benefits. Independent contractors can register with the program for personal optional protection. If they don’t do this, they are not entitled to compensation for workplace injuries or diseases.

If you suffer a workplace injury or disease, you may be able to get a range of disability benefits, health care benefits, and vocational rehabilitation benefits. We explain the various types of benefits shortly.

A workplace injury or disease can include a mental disorder. For example, a worker who is sexually harassed at work and suffers a mental disorder from it, may be able to get compensation (even if the harassment did not involve a physical injury).

===Benefits if you suffer a temporary disability===
If you suffer a temporary disability, you can qualify for '''short-term disability benefits''' and '''wage loss benefits'''.

These benefits pay you, at least partly, for income you lose because of a workplace injury or disease. If you are injured and unable to work, the benefits are usually 90% of your net wages at the time of your injury or disease. These benefits pay you for lost income, up to a maximum wage (adjusted each year). If you remain disabled after 10 weeks, Work Safe BC may recalculate your benefits based on your net income in the 12 months before your injury or disease.

Wage loss benefits continue until you are no longer temporarily disabled or your condition becomes stable.

===Benefits if you are permanently disabled===
If you are permanently disabled, totally or partly, you may be able to get '''permanent disability benefits''' and '''retirement benefits'''.

Work Safe BC won’t decide about any permanent disability until your condition becomes stable. “Stable” means your condition stays the same and the medical evidence indicates it will probably not get any better or worse over the next 12 months.

The focus is on whether and how your condition impairs your future earning capacity. If Work Safe BC finds it does, they look at providing a permanent disability award.

====How the benefits are calculated====
Permanent disability benefits are paid in one of two ways: a “permanent functional impairment” award (called a PFI award) or a “loss of earnings” award (called an LOE award). Usually, Work Safe BC pays a PFI award, to compensate you based on the kind of injury you have. But if Work Safe BC finds that a PFI award does not properly compensate you — because your disability reduces your ability to continue working in your occupation to an exceptional extent — it may pay an LOE award.

====How the benefits are paid====
Normally, if long-term benefits are more than $200 a month, they are paid monthly. If benefits are less than $200 a month, you will probably get a lump-sum payout. Even if Work Safe BC plans to pay your benefits monthly, you can apply for a lump-sum payout of all or part of your award.

===Health care and vocational rehabilitation benefits===
'''Health care benefits''' pay for doctors, hospitals, nursing care, home care, prescription drugs, and other health care professionals like physiotherapists, dentists, and chiropractors. They also cover other expenses, including medical supplies, appliances like crutches, hearing aids, dentures, and eyeglasses, as well as modifications to your home, vehicles, and workplace.

If Work Safe BC decides you cannot return to your pre-injury job because of your injury and your employer cannot offer a modified job, you may be entitled to '''vocational rehabilitation services'''. These benefits are for vocational retraining, workplace redesign or job modification, training on the job, and job search activity.

{| class="wikitable"
|align="left"|'''Tip'''
If you suffer a workplace injury or disease that eventually forces you to change your occupation, you should think about your future educational and vocational needs. You should ask Work Safe BC for rehabilitation guidance to help you plan your future. You have to take charge of your own rehabilitation. If you have a good idea of what you want, you explain it, and it is appropriate, the more likely you are to get it.
|}

===Benefits for families of workers===
Families of workers who are killed on the job or die from a workplace injury or disease, may qualify for benefits.

The possible benefits include:
*A monthly pension benefit for the surviving spouse, based on the worker's earnings. This benefit continues for the spouse's lifetime.
*A monthly benefit for a dependent child up to the age of 19. Benefits may continue to age 25 if the child regularly attends post-secondary school.
*Grief and vocational counselling for the surviving spouse, and grief counselling for any dependent children.
*Funeral benefits.

==How to apply for benefits==

===Step 1. Report the injury or illness immediately===
If you suffer a workplace injury or illness, report it immediately to your employer, your doctor and Work Safe BC. You can report the injury to Work Safe BC:
*By phone by calling Teleclaim at 1-888-967-5377.
*Online at [https://www.worksafebc.com/en/claims/report-workplace-injury-illness/how-workers-report-workplace-injury-illness worksafebc.com], by selecting “Report a workplace injury or disease” to input your information.
*By completing the print '''application for compensation and report of injury''' form, and mailing or faxing it to Work Safe BC. You can get the print form from your employer, your union, or [https://www.worksafebc.com/en/resources/claims/forms/application-for-compensation-and-report-of-injury-or-occupational-disease-form-6?lang=en Work Safe BC].

Your employer and your doctor must report your injury or disease to Work Safe BC within three days of when you tell them about it.

===Step 2. Apply for benefits===
You must apply to Work Safe BC if you want benefits. Just reporting an injury to your employer and doctor is not enough. You can apply for benefits on the [https://www.worksafebc.com/en/claims/report-workplace-injury-illness/how-workers-report-workplace-injury-illness Work Safe BC website], or by completing the '''application for compensation and report of injury''' form, and mailing or faxing it to Work Safe BC.

You have '''one year''' from your accident or disease to apply for compensation. After that, you may lose your right to benefits unless special circumstances stopped you from applying on time.

====What happens when you apply====
A Work Safe BC officer will examine your claim and decide if you get benefits, and if so, the type and amount.

A decision on whether you get benefits can be complicated. You can discuss your case with your union, a lawyer, or the '''Workers’ Advisers Office'''. Workers’ advisers work for the Ministry of Labour to help workers with their claims. They are separate from Work Safe BC and there’s no charge for their services. To reach the Workers’ Advisers Office, visit [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers] or call 604-713-0360 in Vancouver and 1-800-663-4261 elsewhere in BC.

===Step 3. Ask for a review===
If Work Safe BC decides you are not eligible for benefits, or if you don’t understand its decision, ask the Work Safe BC officer handling your claim for an explanation. Ask for a decision letter if you didn’t already get one. If you’re still not satisfied, you can ask Work Safe BC for a '''review of the decision'''.

In a few scenarios, you can’t ask for a review but need to appeal directly to the Workers’ Compensation Appeal Tribunal. For example, if you are challenging a decision to reopen (or not reopen) a matter, or challenging a decision on a discriminatory action complaint (where an employer punished you for raising safety concerns at work). Appeals are explained shortly.

====Time limit to ask for review====
You must ask for a review within '''90 days''' of the date of Work Safe BC’s decision letter or, in some cases, within 90 days of the date when Work Safe BC told you its decision orally or stopped paying you.

====The review process====
When you ask for a review, Work Safe BC should automatically give you a copy of your claim file and you can use the information in it for your review. After you request a review, you will receive a letter setting a time to make written submissions. The review division does not normally hold oral hearings.

The review division considers the written submissions and Work Safe BC’s file and gives its decision, usually within 150 days. The [http://worksafebc.com/claims/review_and_appeals/default.asp Work Safe BC website] has more information on reviews. The phone numbers for the review division are 604-214-5411 in the Lower Mainland and 1-888-922-8804 elsewhere in BC.

{| class="wikitable"
|align="left"|'''Tip'''
While your review is being considered, if you feel that Work Safe BC has treated you unfairly, you can also complain to Work Safe BC’s Fair Practices Office and to the [http://www.ombudsman.bc.ca/ Ombudsperson of BC] (who can be reached at 1-800-567-3247).
|}

===Step 4. Appeal the review decision===
If you disagree with the decision on the review, you can usually '''appeal''' to the [http://www.wcat.bc.ca/ Workers’ Compensation Appeal Tribunal]. You cannot appeal review decisions on some issues, such as vocational rehabilitation benefits, certain types of disability awards, and whether benefits are paid as a lump sum.

If you decide to appeal, you must do so within '''30 days''' of the decision of the review division. For details on the process, see our information on [[Appealing a Workers' Compensation Decision (Script 286)|appealing a workers’ compensation decision (no. 286)]].

==Get help==

===With a claim===
The '''Work Safe BC''' website includes extensive information on workers’ compensation benefits, how to apply for benefits, and the process to review or appeal a decision.
:Telephone: 604-231-8888 in the Lower Mainland
:Toll-free: 1-888-967-5377
:Web: [appealing a workers’ compensation decision (no. 286) worksafebc.com]

The '''Workers’ Advisers Office''' is a government office that helps workers with claims for workers’ compensation benefits. They are separate from Work Safe BC and there’s no charge for their services.
:Telephone: 604-713-0360 in Vancouver
:Toll-free: 1-800-663-4261
:Web: [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers]

[updated January 2018]

'''The above was last reviewed for legal accuracy by [http://www.wcat.bc.ca/index.aspx] Tim Martiniuk, Workers’ Compensation Appeal Tribunal (WCAT).'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Workers' Compensation

2019-03-03T06:20:29Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
Getting hurt or ill on the job not only impacts your health, but can leave you without a source of income. That’s where British Columbia’s workers’ compensation program comes in.

==Understand the legal framework==

===Workers’ compensation pays injured workers and promotes workplace safety===
'''Workers’ compensation''' is a BC government program under the ''[http://canlii.ca/t/84g2 Workers Compensation Act]''. It is run by [http://www.worksafebc.com/ Work Safe BC] and is paid for by employers. The program pays workers for some of their lost income and certain expenses if they suffer a workplace injury or disease — regardless of who was at fault. The program pays a worker’s family if the worker dies from the injury or disease.

The program also helps injured workers get back to work. As well, it promotes health and safety in the workplace, including preventing and responding to workplace bullying and harassment (including sexual harassment).

===Who can get workers’ compensation===
The workers’ compensation program covers almost all workers in British Columbia, both full- and part-time, including office workers, farm workers, performers, and domestic workers.

Unregistered labour contractors may also be entitled to benefits. Independent contractors can register with the program for personal optional protection. If they don’t do this, they are not entitled to compensation for workplace injuries or diseases.

If you suffer a workplace injury or disease, you may be able to get a range of disability benefits, health care benefits, and vocational rehabilitation benefits. We explain the various types of benefits shortly.

A workplace injury or disease can include a mental disorder. For example, a worker who is sexually harassed at work and suffers a mental disorder from it, may be able to get compensation (even if the harassment did not involve a physical injury).

===Benefits if you suffer a temporary disability===
If you suffer a temporary disability, you can qualify for '''short-term disability benefits''' and '''wage loss benefits'''.

These benefits pay you, at least partly, for income you lose because of a workplace injury or disease. If you are injured and unable to work, the benefits are usually 90% of your net wages at the time of your injury or disease. These benefits pay you for lost income, up to a maximum wage (adjusted each year). If you remain disabled after 10 weeks, Work Safe BC may recalculate your benefits based on your net income in the 12 months before your injury or disease.

Wage loss benefits continue until you are no longer temporarily disabled or your condition becomes stable.

===Benefits if you are permanently disabled===
If you are permanently disabled, totally or partly, you may be able to get '''permanent disability benefits''' and '''retirement benefits'''.

Work Safe BC won’t decide about any permanent disability until your condition becomes stable. “Stable” means your condition stays the same and the medical evidence indicates it will probably not get any better or worse over the next 12 months.

The focus is on whether and how your condition impairs your future earning capacity. If Work Safe BC finds it does, they look at providing a permanent disability award.

====How the benefits are calculated====
Permanent disability benefits are paid in one of two ways: a “permanent functional impairment” award (called a PFI award) or a “loss of earnings” award (called an LOE award). Usually, Work Safe BC pays a PFI award, to compensate you based on the kind of injury you have. But if Work Safe BC finds that a PFI award does not properly compensate you — because your disability reduces your ability to continue working in your occupation to an exceptional extent — it may pay an LOE award.

====How the benefits are paid====
Normally, if long-term benefits are more than $200 a month, they are paid monthly. If benefits are less than $200 a month, you will probably get a lump-sum payout. Even if Work Safe BC plans to pay your benefits monthly, you can apply for a lump-sum payout of all or part of your award.

===Health care and vocational rehabilitation benefits===
'''Health care benefits''' pay for doctors, hospitals, nursing care, home care, prescription drugs, and other health care professionals like physiotherapists, dentists, and chiropractors. They also cover other expenses, including medical supplies, appliances like crutches, hearing aids, dentures, and eyeglasses, as well as modifications to your home, vehicles, and workplace.

If Work Safe BC decides you cannot return to your pre-injury job because of your injury and your employer cannot offer a modified job, you may be entitled to '''vocational rehabilitation services'''. These benefits are for vocational retraining, workplace redesign or job modification, training on the job, and job search activity.

{| class="wikitable"
|align="left"|'''Tip'''
If you suffer a workplace injury or disease that eventually forces you to change your occupation, you should think about your future educational and vocational needs. You should ask Work Safe BC for rehabilitation guidance to help you plan your future. You have to take charge of your own rehabilitation. If you have a good idea of what you want, you explain it, and it is appropriate, the more likely you are to get it.
|}

===Benefits for families of workers===
Families of workers who are killed on the job or die from a workplace injury or disease, may qualify for benefits.

The possible benefits include:
*A monthly pension benefit for the surviving spouse, based on the worker's earnings. This benefit continues for the spouse's lifetime.
*A monthly benefit for a dependent child up to the age of 19. Benefits may continue to age 25 if the child regularly attends post-secondary school.
*Grief and vocational counselling for the surviving spouse, and grief counselling for any dependent children.
*Funeral benefits.

==How to apply for benefits==

===Step 1. Report the injury or illness immediately===
If you suffer a workplace injury or illness, report it immediately to your employer, your doctor and Work Safe BC. You can report the injury to Work Safe BC:
*By phone by calling Teleclaim at 1-888-967-5377.
*Online at [https://www.worksafebc.com/en/claims/report-workplace-injury-illness/how-workers-report-workplace-injury-illness worksafebc.com], by selecting “Report a workplace injury or disease” to input your information.
*By completing the print '''application for compensation and report of injury''' form, and mailing or faxing it to Work Safe BC. You can get the print form from your employer, your union, or [https://www.worksafebc.com/en/resources/claims/forms/application-for-compensation-and-report-of-injury-or-occupational-disease-form-6?lang=en Work Safe BC].

Your employer and your doctor must report your injury or disease to Work Safe BC within three days of when you tell them about it.

===Step 2. Apply for benefits===
You must apply to Work Safe BC if you want benefits. Just reporting an injury to your employer and doctor is not enough. You can apply for benefits on the [https://www.worksafebc.com/en/claims/report-workplace-injury-illness/how-workers-report-workplace-injury-illness Work Safe BC website], or by completing the '''application for compensation and report of injury''' form, and mailing or faxing it to Work Safe BC.

You have '''one year''' from your accident or disease to apply for compensation. After that, you may lose your right to benefits unless special circumstances stopped you from applying on time.

====What happens when you apply====
A Work Safe BC officer will examine your claim and decide if you get benefits, and if so, the type and amount.

A decision on whether you get benefits can be complicated. You can discuss your case with your union, a lawyer, or the '''Workers’ Advisers Office'''. Workers’ advisers work for the Ministry of Labour to help workers with their claims. They are separate from Work Safe BC and there’s no charge for their services. To reach the Workers’ Advisers Office, visit [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers] or call 604-713-0360 in Vancouver and 1-800-663-4261 elsewhere in BC.

===Step 3. Ask for a review===
If Work Safe BC decides you are not eligible for benefits, or if you don’t understand its decision, ask the Work Safe BC officer handling your claim for an explanation. Ask for a decision letter if you didn’t already get one. If you’re still not satisfied, you can ask Work Safe BC for a '''review of the decision'''.

In a few scenarios, you can’t ask for a review but need to appeal directly to the Workers’ Compensation Appeal Tribunal. For example, if you are challenging a decision to reopen (or not reopen) a matter, or challenging a decision on a discriminatory action complaint (where an employer punished you for raising safety concerns at work). Appeals are explained shortly.

====Time limit to ask for review====
You must ask for a review within '''90 days''' of the date of Work Safe BC’s decision letter or, in some cases, within 90 days of the date when Work Safe BC told you its decision orally or stopped paying you.

===The review process===
When you ask for a review, Work Safe BC should automatically give you a copy of your claim file and you can use the information in it for your review. After you request a review, you will receive a letter setting a time to make written submissions. The review division does not normally hold oral hearings.

The review division considers the written submissions and Work Safe BC’s file and gives its decision, usually within 150 days. The [http://worksafebc.com/claims/review_and_appeals/default.asp Work Safe BC website] has more information on reviews. The phone numbers for the review division are 604-214-5411 in the Lower Mainland and 1-888-922-8804 elsewhere in BC.

{| class="wikitable"
|align="left"|'''Tip'''
While your review is being considered, if you feel that Work Safe BC has treated you unfairly, you can also complain to Work Safe BC’s Fair Practices Office and to the [http://www.ombudsman.bc.ca/ Ombudsperson of BC] (who can be reached at 1-800-567-3247).
|}

===Step 4. Appeal the review decision===
If you disagree with the decision on the review, you can usually '''appeal''' to the [http://www.wcat.bc.ca/ Workers’ Compensation Appeal Tribunal]. You cannot appeal review decisions on some issues, such as vocational rehabilitation benefits, certain types of disability awards, and whether benefits are paid as a lump sum.

If you decide to appeal, you must do so within '''30 days''' of the decision of the review division. For details on the process, see our information on [[Appealing a Workers' Compensation Decision (Script 286)|appealing a workers’ compensation decision (no. 286)]].

==Get help==

===With a claim===
The '''Work Safe BC''' website includes extensive information on workers’ compensation benefits, how to apply for benefits, and the process to review or appeal a decision.
:Telephone: 604-231-8888 in the Lower Mainland
:Toll-free: 1-888-967-5377
:Web: [appealing a workers’ compensation decision (no. 286) worksafebc.com]

The '''Workers’ Advisers Office''' is a government office that helps workers with claims for workers’ compensation benefits. They are separate from Work Safe BC and there’s no charge for their services.
:Telephone: 604-713-0360 in Vancouver
:Toll-free: 1-800-663-4261
:Web: [http://gov.bc.ca/workersadvisers gov.bc.ca/workersadvisers]

[updated January 2018]

'''The above was last reviewed for legal accuracy by [http://www.wcat.bc.ca/index.aspx] Tim Martiniuk, Workers’ Compensation Appeal Tribunal (WCAT).'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Applying for Employment Insurance

2019-03-03T06:06:39Z

Dial-A-Law: /* Can I leave Canada temporarily and still get EI benefits? */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
In Canada, the government offers financial support to people who are without work. Learn whether you are eligible for Employment Insurance benefits, and the steps to apply for benefits.

==Understand your legal rights==

===Employment Insurance benefits help people who are without work===
'''Employment Insurance benefits''' are temporary payments made to people who lose their job through no fault of their own. EI, as it’s often called, also offers help if you can’t work because of illness or injury. And it provides benefits for people who take time off to have a baby or care for family members who are ill or injured.

The EI program is run by the federal government department [http://www.esdc.gc.ca/ Employment and Social Development Canada]. For detailed information on EI, including eligibility for various types of benefits and how to apply, see [http://canada.ca/ei canada.ca/ei] or call Service Canada at 1-800-206-7218.

===There are various types of benefits available===
'''EI regular benefits''' are for people who lose their job through no fault of their own — for example, they were laid off. They must be available and able to work but unable to find a job.

In addition, there are other types of EI benefits available, including:
*'''Maternity and parental benefits''' are for people who can’t work because they are pregnant, recently had a baby, are adopting a child, or are caring for a baby.
*'''Sickness benefits''' are for people who can’t work because they are sick, injured, or quarantined.
*'''Family caregiver benefits''' are for people who can’t work because they’ve stepped away to care for or support a critically ill or injured family member.
*'''Compassionate care benefits''' are for people who can’t work because they’ve stepped away to care for or support a family member who is gravely ill with a significant risk of death within six months.
*'''Benefits for parents of critically ill children''' are for eligible parents who take time off work to care for their critically ill or injured child.
*'''Fishing benefits''' are for self-employed fishers who are actively seeking work.

===Qualifying for Employment Insurance benefits===
Under the [http://canlii.ca/t/7vtf law in Canada], you may qualify for “regular benefits” under Employment Insurance if all of the following apply to you:
*You paid into Employment Insurance as a worker.
*You worked for the minimum number of hours during the “qualifying period”. The qualifying period is the last 52 weeks or since the start of your last EI claim, whichever is shorter. The minimum number of hours is [https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/eligibility.html between 420 and 700 hours], depending on where you live.
*You lost your job through no fault of your own. (You will not qualify for EI benefits if you quit your last job, unless you can prove you quit for a good reason.)
*You’ve been without work and pay for at least seven consecutive days in the last 52 weeks.
*You’ve run out of any vacation or severance pay you received.
*You are ready, willing and capable of working, and are actively looking for work.

The qualifying period can be extended up to 104 weeks if you couldn’t work because you were ill, injured, or pregnant (among other reasons). A longer qualifying period helps if you haven’t worked enough hours in the normal qualifying period. You have to ask for an extension.

The Service Canada website at [http://canada.ca/ei canada.ca/ei] explains who qualifies for the various other types of EI benefits, and how to apply.

===How much you might get===
The amount of Employment Insurance you receive is determined by how much you’ve been earning and where you live. For most people, the basic rate for calculating EI benefits is 55% of your average insurable weekly earnings, up to a maximum amount. The maximum amount changes over time. Check the [https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/benefit-amount.html Service Canada website] for the current figure.

In calculating your EI benefits, the government considers your gross earnings (before deductions), including tips and commissions. EI benefits are taxable income, so taxes are deducted.

EI benefits are based on your highest weeks of earnings over the qualifying period (usually 52 weeks). Your benefits are calculated over a set number of weeks. That number can range from 14 to 22 weeks, depending on the [http://srv129.services.gc.ca/eiregions/eng/rates_cur.aspx unemployment rate in your region].

You can get more if you are in a low-income family or otherwise qualify for a '''family supplement'''.

====Your benefits may be reduced if you earn certain income====
Your EI benefits may be reduced if you earn other types of income during your benefit period. These include:
*Pension income from the Canada Pension Plan or a provincial pension plan.
*Pension income from employment (unless you’ve worked at another job long enough, after the pension starts, to qualify for EI).
*Money awarded by a court for wrongful dismissal.
*Severance pay.
*“Callback pay”, which is money your employer pays you to come back to work for a short period after your employment has ended.
*Self-employment income.

====Other types of income won’t lower your EI benefits====
You can earn other types of income without having your EI benefits reduced. These include pension income from an RRSP or RRIF, the Old Age Security pension, or disability benefits.

==Apply for EI benefits==

===Step 1. Gather your information===
Before applying for Employment Insurance benefits, collect all the documents and information you’ll need. These include:
*your Social Insurance Number
*your personal identification (for example, your driver’s licence or passport)
*your bank information for direct deposit
*details of your most recent employment (including your salary and other benefits)
*your detailed version of the circumstances of your leaving your job
*your Record of Employment (ROE), a document that proves you were employed (you will need an ROE from each employer you worked for in the previous 52 weeks)

If you are claiming sickness benefits or benefits to allow you to care for someone, you’ll need to obtain a medical certificate in support.

===Step 2. Submit the application===
You should apply for EI benefits as soon as you stop working. You can apply for benefits even if you receive money when you leave your job, and even if you have not yet received your Record of Employment. If you delay applying for more than four weeks after your last day of work, you may lose benefits.

You must apply for EI using an online application form. You can fill it out:
*online at [http://www.canada.ca/ei canada.ca/ei]
*at a [http://www.servicecanada.gc.ca/tbsc-fsco/sc-hme.jsp?lang=eng Service Canada office]

===Step 3. After you apply===
If your application for EI benefits is approved, there may be a one-week “waiting period” for which you will not be paid.

If your application is denied, Service Canada will contact you by letter or phone to explain why. If you disagree with the decision, you have the right to ask for a reconsideration.

===Step 4. Request a reconsideration===
If your application for EI benefits is denied, your first step to challenge the decision is to request a '''reconsideration'''. There is no cost to do this. You must submit your request to Service Canada within 30 days from when the decision was sent to you. If you miss the deadline, you must provide a reason why.

To request a reconsideration, fill out the online [https://catalogue.servicecanada.gc.ca/apps/EForms/pdf/en/SC-INS5210.pdf request for reconsideration form]. Once you’ve filled it out, print, sign and mail the form to your regional Service Canada office noted on the form.

===Step 5. Appeal to the Social Security Tribunal===
If you disagree with the decision made on your request for reconsideration, you can appeal to the [http://www1.canada.ca/en/sst/index.html Social Security Tribunal]. This is a body similar to a court that hears appeals on pensions and benefits provided by the federal government.

You must submit your appeal within 30 days of receiving the reconsideration decision. The appeal must be in the [https://www1.canada.ca/en/sst/forms.html prescribed form]. Service Canada has more information about how to appeal on its [http://www1.canada.ca/en/sst/ei/howto.html website].

The tribunal will consider your appeal. They may hold a hearing, which could happen by teleconference, in person, or in writing. The tribunal will make a decision on your appeal and send you the decision in writing.

If you disagree with the tribunal’s decision on your appeal, you can ask for “leave” (permission) to make a further appeal to the Appeal Division of the Social Security Tribunal.

==Common questions==

===Can I work part-time and still get EI?===
Yes, up to a point. If you earn money while receiving EI benefits, you can keep 50 cents of your benefits for every dollar you earn, up to 90% of your previous weekly earnings (roughly four and a half days of work). Above this cap, your EI benefits are deducted dollar-for-dollar.

You must report any income you earn while you’re receiving EI. You need to submit your report and declare your earnings [https://www.canada.ca/en/services/benefits/ei/ei-internet-reporting.html online] each week.

You are not eligible to receive EI benefits if you work a full week, regardless of the amount you earn.

===Can I get EI if I’m self-employed?===
Yes. Under the [https://www.canlii.org/en/ca/laws/stat/sc-1996-c-23/latest/sc-1996-c-23.html#sec152.01subsec1_smooth law in Canada], self-employed workers can get special benefits in some cases. To be eligible, you must:
*be a Canadian citizen or permanent resident,
*register with the government (by signing an agreement),
*operate your own business, or work for a corporation but control more than 40% of the voting shares, and
*wait 12 months after registering.

There are six types of EI special benefits available to self-employed workers. The [https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/self-employed-special-benefits.html Service Canada website] describes them in detail, and has instructions on how to apply.

===What must I do while receiving EI benefits?===
While you are receiving EI benefits, you must submit a report every two weeks to show you're still eligible to receive benefits. You can submit your report:
*online, using the federal government’s [https://www.canada.ca/en/services/benefits/ei/ei-internet-reporting.html Internet Reporting Service]
*by phone, using the [https://www.canada.ca/en/services/benefits/ei/ei-telephone-reporting.html Telephone Reporting Service] at 1-800-531-7555
*by filling out and submitting a [https://www.canada.ca/en/services/benefits/ei/ei-paper-reports.html paper copy]

===How long can I collect EI?===
You can get regular EI benefits for a period ranging from 14 to 45 weeks. The exact period depends on the [http://srv129.services.gc.ca/eiregions/eng/postalcode_search.aspx unemployment rate in your region], and the number of insurable hours you worked in the qualifying period.

This [http://laws-lois.justice.gc.ca/eng/acts/e-5.6/page-38.html#h-72 chart] can help you figure out how long you’re eligible to collect.

===Might I have to repay some EI?===
Yes. After you file your income tax return, you may have to repay part of the EI benefits you received. It depends on your net income and the amount of EI benefits you received.

===Can I leave Canada temporarily and still get EI benefits?===
In some circumstances, you can leave Canada and still receive Employment Insurance benefits.

While traveling abroad, your EI benefits won’t be interrupted if you’re outside of Canada for '''up to seven consecutive days''' to do one of the following:
*Attend the funeral of a member of your immediate family or a close relative.
*Accompany a member of your immediate family to a medical facility, if the treatment isn’t available where they live in Canada.
*Visit a member of your immediate family who is seriously ill or injured.
*Attend a job interview.

You can also be outside of Canada for up to 14 days in a row if you’re looking for a job.

===Can I work or live outside Canada and still get EI?===
Typically, if you work outside of Canada for a Canadian company or the Canadian government, you’re eligible for EI benefits. However, you can’t collect EI benefits if your job is covered by a similar program in the country you’re working in.

If you live outside Canada, you may be eligible for some types of EI in certain cases. As well, you may be eligible if you live in Canada or the US and regularly cross the Canada/US border between your home and workplace.

The [https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/outside-canada.html Service Canada website] has more information about EI for workers and residents outside of Canada.

[updated June 2018]

'''The above was last reviewed for legal accuracy by [https://eralaw.ca/about-us/mark-w-hundleby/ Mark Hundleby], ERA Law.'''

----
----

{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Applying for Employment Insurance

2019-03-03T06:06:12Z

Dial-A-Law: /* How long can I collect EI? */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
In Canada, the government offers financial support to people who are without work. Learn whether you are eligible for Employment Insurance benefits, and the steps to apply for benefits.

==Understand your legal rights==

===Employment Insurance benefits help people who are without work===
'''Employment Insurance benefits''' are temporary payments made to people who lose their job through no fault of their own. EI, as it’s often called, also offers help if you can’t work because of illness or injury. And it provides benefits for people who take time off to have a baby or care for family members who are ill or injured.

The EI program is run by the federal government department [http://www.esdc.gc.ca/ Employment and Social Development Canada]. For detailed information on EI, including eligibility for various types of benefits and how to apply, see [http://canada.ca/ei canada.ca/ei] or call Service Canada at 1-800-206-7218.

===There are various types of benefits available===
'''EI regular benefits''' are for people who lose their job through no fault of their own — for example, they were laid off. They must be available and able to work but unable to find a job.

In addition, there are other types of EI benefits available, including:
*'''Maternity and parental benefits''' are for people who can’t work because they are pregnant, recently had a baby, are adopting a child, or are caring for a baby.
*'''Sickness benefits''' are for people who can’t work because they are sick, injured, or quarantined.
*'''Family caregiver benefits''' are for people who can’t work because they’ve stepped away to care for or support a critically ill or injured family member.
*'''Compassionate care benefits''' are for people who can’t work because they’ve stepped away to care for or support a family member who is gravely ill with a significant risk of death within six months.
*'''Benefits for parents of critically ill children''' are for eligible parents who take time off work to care for their critically ill or injured child.
*'''Fishing benefits''' are for self-employed fishers who are actively seeking work.

===Qualifying for Employment Insurance benefits===
Under the [http://canlii.ca/t/7vtf law in Canada], you may qualify for “regular benefits” under Employment Insurance if all of the following apply to you:
*You paid into Employment Insurance as a worker.
*You worked for the minimum number of hours during the “qualifying period”. The qualifying period is the last 52 weeks or since the start of your last EI claim, whichever is shorter. The minimum number of hours is [https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/eligibility.html between 420 and 700 hours], depending on where you live.
*You lost your job through no fault of your own. (You will not qualify for EI benefits if you quit your last job, unless you can prove you quit for a good reason.)
*You’ve been without work and pay for at least seven consecutive days in the last 52 weeks.
*You’ve run out of any vacation or severance pay you received.
*You are ready, willing and capable of working, and are actively looking for work.

The qualifying period can be extended up to 104 weeks if you couldn’t work because you were ill, injured, or pregnant (among other reasons). A longer qualifying period helps if you haven’t worked enough hours in the normal qualifying period. You have to ask for an extension.

The Service Canada website at [http://canada.ca/ei canada.ca/ei] explains who qualifies for the various other types of EI benefits, and how to apply.

===How much you might get===
The amount of Employment Insurance you receive is determined by how much you’ve been earning and where you live. For most people, the basic rate for calculating EI benefits is 55% of your average insurable weekly earnings, up to a maximum amount. The maximum amount changes over time. Check the [https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/benefit-amount.html Service Canada website] for the current figure.

In calculating your EI benefits, the government considers your gross earnings (before deductions), including tips and commissions. EI benefits are taxable income, so taxes are deducted.

EI benefits are based on your highest weeks of earnings over the qualifying period (usually 52 weeks). Your benefits are calculated over a set number of weeks. That number can range from 14 to 22 weeks, depending on the [http://srv129.services.gc.ca/eiregions/eng/rates_cur.aspx unemployment rate in your region].

You can get more if you are in a low-income family or otherwise qualify for a '''family supplement'''.

====Your benefits may be reduced if you earn certain income====
Your EI benefits may be reduced if you earn other types of income during your benefit period. These include:
*Pension income from the Canada Pension Plan or a provincial pension plan.
*Pension income from employment (unless you’ve worked at another job long enough, after the pension starts, to qualify for EI).
*Money awarded by a court for wrongful dismissal.
*Severance pay.
*“Callback pay”, which is money your employer pays you to come back to work for a short period after your employment has ended.
*Self-employment income.

====Other types of income won’t lower your EI benefits====
You can earn other types of income without having your EI benefits reduced. These include pension income from an RRSP or RRIF, the Old Age Security pension, or disability benefits.

==Apply for EI benefits==

===Step 1. Gather your information===
Before applying for Employment Insurance benefits, collect all the documents and information you’ll need. These include:
*your Social Insurance Number
*your personal identification (for example, your driver’s licence or passport)
*your bank information for direct deposit
*details of your most recent employment (including your salary and other benefits)
*your detailed version of the circumstances of your leaving your job
*your Record of Employment (ROE), a document that proves you were employed (you will need an ROE from each employer you worked for in the previous 52 weeks)

If you are claiming sickness benefits or benefits to allow you to care for someone, you’ll need to obtain a medical certificate in support.

===Step 2. Submit the application===
You should apply for EI benefits as soon as you stop working. You can apply for benefits even if you receive money when you leave your job, and even if you have not yet received your Record of Employment. If you delay applying for more than four weeks after your last day of work, you may lose benefits.

You must apply for EI using an online application form. You can fill it out:
*online at [http://www.canada.ca/ei canada.ca/ei]
*at a [http://www.servicecanada.gc.ca/tbsc-fsco/sc-hme.jsp?lang=eng Service Canada office]

===Step 3. After you apply===
If your application for EI benefits is approved, there may be a one-week “waiting period” for which you will not be paid.

If your application is denied, Service Canada will contact you by letter or phone to explain why. If you disagree with the decision, you have the right to ask for a reconsideration.

===Step 4. Request a reconsideration===
If your application for EI benefits is denied, your first step to challenge the decision is to request a '''reconsideration'''. There is no cost to do this. You must submit your request to Service Canada within 30 days from when the decision was sent to you. If you miss the deadline, you must provide a reason why.

To request a reconsideration, fill out the online [https://catalogue.servicecanada.gc.ca/apps/EForms/pdf/en/SC-INS5210.pdf request for reconsideration form]. Once you’ve filled it out, print, sign and mail the form to your regional Service Canada office noted on the form.

===Step 5. Appeal to the Social Security Tribunal===
If you disagree with the decision made on your request for reconsideration, you can appeal to the [http://www1.canada.ca/en/sst/index.html Social Security Tribunal]. This is a body similar to a court that hears appeals on pensions and benefits provided by the federal government.

You must submit your appeal within 30 days of receiving the reconsideration decision. The appeal must be in the [https://www1.canada.ca/en/sst/forms.html prescribed form]. Service Canada has more information about how to appeal on its [http://www1.canada.ca/en/sst/ei/howto.html website].

The tribunal will consider your appeal. They may hold a hearing, which could happen by teleconference, in person, or in writing. The tribunal will make a decision on your appeal and send you the decision in writing.

If you disagree with the tribunal’s decision on your appeal, you can ask for “leave” (permission) to make a further appeal to the Appeal Division of the Social Security Tribunal.

==Common questions==

===Can I work part-time and still get EI?===
Yes, up to a point. If you earn money while receiving EI benefits, you can keep 50 cents of your benefits for every dollar you earn, up to 90% of your previous weekly earnings (roughly four and a half days of work). Above this cap, your EI benefits are deducted dollar-for-dollar.

You must report any income you earn while you’re receiving EI. You need to submit your report and declare your earnings [https://www.canada.ca/en/services/benefits/ei/ei-internet-reporting.html online] each week.

You are not eligible to receive EI benefits if you work a full week, regardless of the amount you earn.

===Can I get EI if I’m self-employed?===
Yes. Under the [https://www.canlii.org/en/ca/laws/stat/sc-1996-c-23/latest/sc-1996-c-23.html#sec152.01subsec1_smooth law in Canada], self-employed workers can get special benefits in some cases. To be eligible, you must:
*be a Canadian citizen or permanent resident,
*register with the government (by signing an agreement),
*operate your own business, or work for a corporation but control more than 40% of the voting shares, and
*wait 12 months after registering.

There are six types of EI special benefits available to self-employed workers. The [https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/self-employed-special-benefits.html Service Canada website] describes them in detail, and has instructions on how to apply.

===What must I do while receiving EI benefits?===
While you are receiving EI benefits, you must submit a report every two weeks to show you're still eligible to receive benefits. You can submit your report:
*online, using the federal government’s [https://www.canada.ca/en/services/benefits/ei/ei-internet-reporting.html Internet Reporting Service]
*by phone, using the [https://www.canada.ca/en/services/benefits/ei/ei-telephone-reporting.html Telephone Reporting Service] at 1-800-531-7555
*by filling out and submitting a [https://www.canada.ca/en/services/benefits/ei/ei-paper-reports.html paper copy]

===How long can I collect EI?===
You can get regular EI benefits for a period ranging from 14 to 45 weeks. The exact period depends on the [http://srv129.services.gc.ca/eiregions/eng/postalcode_search.aspx unemployment rate in your region], and the number of insurable hours you worked in the qualifying period.

This [http://laws-lois.justice.gc.ca/eng/acts/e-5.6/page-38.html#h-72 chart] can help you figure out how long you’re eligible to collect.

===Might I have to repay some EI?===
Yes. After you file your income tax return, you may have to repay part of the EI benefits you received. It depends on your net income and the amount of EI benefits you received.

===Can I leave Canada temporarily and still get EI benefits?===
In some circumstances, you can leave Canada and still receive Employment Insurance benefits.

While traveling abroad, your EI benefits won’t be interrupted if you’re outside of Canada for '''up to seven consecutive days'' to do one of the following:
*Attend the funeral of a member of your immediate family or a close relative.
*Accompany a member of your immediate family to a medical facility, if the treatment isn’t available where they live in Canada.
*Visit a member of your immediate family who is seriously ill or injured.
*Attend a job interview.

You can also be outside of Canada for up to 14 days in a row if you’re looking for a job.

===Can I work or live outside Canada and still get EI?===
Typically, if you work outside of Canada for a Canadian company or the Canadian government, you’re eligible for EI benefits. However, you can’t collect EI benefits if your job is covered by a similar program in the country you’re working in.

If you live outside Canada, you may be eligible for some types of EI in certain cases. As well, you may be eligible if you live in Canada or the US and regularly cross the Canada/US border between your home and workplace.

The [https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/outside-canada.html Service Canada website] has more information about EI for workers and residents outside of Canada.

[updated June 2018]

'''The above was last reviewed for legal accuracy by [https://eralaw.ca/about-us/mark-w-hundleby/ Mark Hundleby], ERA Law.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Applying for Employment Insurance

2019-03-03T05:55:18Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = employment}}
In Canada, the government offers financial support to people who are without work. Learn whether you are eligible for Employment Insurance benefits, and the steps to apply for benefits.

==Understand your legal rights==

===Employment Insurance benefits help people who are without work===
'''Employment Insurance benefits''' are temporary payments made to people who lose their job through no fault of their own. EI, as it’s often called, also offers help if you can’t work because of illness or injury. And it provides benefits for people who take time off to have a baby or care for family members who are ill or injured.

The EI program is run by the federal government department [http://www.esdc.gc.ca/ Employment and Social Development Canada]. For detailed information on EI, including eligibility for various types of benefits and how to apply, see [http://canada.ca/ei canada.ca/ei] or call Service Canada at 1-800-206-7218.

===There are various types of benefits available===
'''EI regular benefits''' are for people who lose their job through no fault of their own — for example, they were laid off. They must be available and able to work but unable to find a job.

In addition, there are other types of EI benefits available, including:
*'''Maternity and parental benefits''' are for people who can’t work because they are pregnant, recently had a baby, are adopting a child, or are caring for a baby.
*'''Sickness benefits''' are for people who can’t work because they are sick, injured, or quarantined.
*'''Family caregiver benefits''' are for people who can’t work because they’ve stepped away to care for or support a critically ill or injured family member.
*'''Compassionate care benefits''' are for people who can’t work because they’ve stepped away to care for or support a family member who is gravely ill with a significant risk of death within six months.
*'''Benefits for parents of critically ill children''' are for eligible parents who take time off work to care for their critically ill or injured child.
*'''Fishing benefits''' are for self-employed fishers who are actively seeking work.

===Qualifying for Employment Insurance benefits===
Under the [http://canlii.ca/t/7vtf law in Canada], you may qualify for “regular benefits” under Employment Insurance if all of the following apply to you:
*You paid into Employment Insurance as a worker.
*You worked for the minimum number of hours during the “qualifying period”. The qualifying period is the last 52 weeks or since the start of your last EI claim, whichever is shorter. The minimum number of hours is [https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/eligibility.html between 420 and 700 hours], depending on where you live.
*You lost your job through no fault of your own. (You will not qualify for EI benefits if you quit your last job, unless you can prove you quit for a good reason.)
*You’ve been without work and pay for at least seven consecutive days in the last 52 weeks.
*You’ve run out of any vacation or severance pay you received.
*You are ready, willing and capable of working, and are actively looking for work.

The qualifying period can be extended up to 104 weeks if you couldn’t work because you were ill, injured, or pregnant (among other reasons). A longer qualifying period helps if you haven’t worked enough hours in the normal qualifying period. You have to ask for an extension.

The Service Canada website at [http://canada.ca/ei canada.ca/ei] explains who qualifies for the various other types of EI benefits, and how to apply.

===How much you might get===
The amount of Employment Insurance you receive is determined by how much you’ve been earning and where you live. For most people, the basic rate for calculating EI benefits is 55% of your average insurable weekly earnings, up to a maximum amount. The maximum amount changes over time. Check the [https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/benefit-amount.html Service Canada website] for the current figure.

In calculating your EI benefits, the government considers your gross earnings (before deductions), including tips and commissions. EI benefits are taxable income, so taxes are deducted.

EI benefits are based on your highest weeks of earnings over the qualifying period (usually 52 weeks). Your benefits are calculated over a set number of weeks. That number can range from 14 to 22 weeks, depending on the [http://srv129.services.gc.ca/eiregions/eng/rates_cur.aspx unemployment rate in your region].

You can get more if you are in a low-income family or otherwise qualify for a '''family supplement'''.

====Your benefits may be reduced if you earn certain income====
Your EI benefits may be reduced if you earn other types of income during your benefit period. These include:
*Pension income from the Canada Pension Plan or a provincial pension plan.
*Pension income from employment (unless you’ve worked at another job long enough, after the pension starts, to qualify for EI).
*Money awarded by a court for wrongful dismissal.
*Severance pay.
*“Callback pay”, which is money your employer pays you to come back to work for a short period after your employment has ended.
*Self-employment income.

====Other types of income won’t lower your EI benefits====
You can earn other types of income without having your EI benefits reduced. These include pension income from an RRSP or RRIF, the Old Age Security pension, or disability benefits.

==Apply for EI benefits==

===Step 1. Gather your information===
Before applying for Employment Insurance benefits, collect all the documents and information you’ll need. These include:
*your Social Insurance Number
*your personal identification (for example, your driver’s licence or passport)
*your bank information for direct deposit
*details of your most recent employment (including your salary and other benefits)
*your detailed version of the circumstances of your leaving your job
*your Record of Employment (ROE), a document that proves you were employed (you will need an ROE from each employer you worked for in the previous 52 weeks)

If you are claiming sickness benefits or benefits to allow you to care for someone, you’ll need to obtain a medical certificate in support.

===Step 2. Submit the application===
You should apply for EI benefits as soon as you stop working. You can apply for benefits even if you receive money when you leave your job, and even if you have not yet received your Record of Employment. If you delay applying for more than four weeks after your last day of work, you may lose benefits.

You must apply for EI using an online application form. You can fill it out:
*online at [http://www.canada.ca/ei canada.ca/ei]
*at a [http://www.servicecanada.gc.ca/tbsc-fsco/sc-hme.jsp?lang=eng Service Canada office]

===Step 3. After you apply===
If your application for EI benefits is approved, there may be a one-week “waiting period” for which you will not be paid.

If your application is denied, Service Canada will contact you by letter or phone to explain why. If you disagree with the decision, you have the right to ask for a reconsideration.

===Step 4. Request a reconsideration===
If your application for EI benefits is denied, your first step to challenge the decision is to request a '''reconsideration'''. There is no cost to do this. You must submit your request to Service Canada within 30 days from when the decision was sent to you. If you miss the deadline, you must provide a reason why.

To request a reconsideration, fill out the online [https://catalogue.servicecanada.gc.ca/apps/EForms/pdf/en/SC-INS5210.pdf request for reconsideration form]. Once you’ve filled it out, print, sign and mail the form to your regional Service Canada office noted on the form.

===Step 5. Appeal to the Social Security Tribunal===
If you disagree with the decision made on your request for reconsideration, you can appeal to the [http://www1.canada.ca/en/sst/index.html Social Security Tribunal]. This is a body similar to a court that hears appeals on pensions and benefits provided by the federal government.

You must submit your appeal within 30 days of receiving the reconsideration decision. The appeal must be in the [https://www1.canada.ca/en/sst/forms.html prescribed form]. Service Canada has more information about how to appeal on its [http://www1.canada.ca/en/sst/ei/howto.html website].

The tribunal will consider your appeal. They may hold a hearing, which could happen by teleconference, in person, or in writing. The tribunal will make a decision on your appeal and send you the decision in writing.

If you disagree with the tribunal’s decision on your appeal, you can ask for “leave” (permission) to make a further appeal to the Appeal Division of the Social Security Tribunal.

==Common questions==

===Can I work part-time and still get EI?===
Yes, up to a point. If you earn money while receiving EI benefits, you can keep 50 cents of your benefits for every dollar you earn, up to 90% of your previous weekly earnings (roughly four and a half days of work). Above this cap, your EI benefits are deducted dollar-for-dollar.

You must report any income you earn while you’re receiving EI. You need to submit your report and declare your earnings [https://www.canada.ca/en/services/benefits/ei/ei-internet-reporting.html online] each week.

You are not eligible to receive EI benefits if you work a full week, regardless of the amount you earn.

===Can I get EI if I’m self-employed?===
Yes. Under the [https://www.canlii.org/en/ca/laws/stat/sc-1996-c-23/latest/sc-1996-c-23.html#sec152.01subsec1_smooth law in Canada], self-employed workers can get special benefits in some cases. To be eligible, you must:
*be a Canadian citizen or permanent resident,
*register with the government (by signing an agreement),
*operate your own business, or work for a corporation but control more than 40% of the voting shares, and
*wait 12 months after registering.

There are six types of EI special benefits available to self-employed workers. The [https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/self-employed-special-benefits.html Service Canada website] describes them in detail, and has instructions on how to apply.

===What must I do while receiving EI benefits?===
While you are receiving EI benefits, you must submit a report every two weeks to show you're still eligible to receive benefits. You can submit your report:
*online, using the federal government’s [https://www.canada.ca/en/services/benefits/ei/ei-internet-reporting.html Internet Reporting Service]
*by phone, using the [https://www.canada.ca/en/services/benefits/ei/ei-telephone-reporting.html Telephone Reporting Service] at 1-800-531-7555
*by filling out and submitting a [https://www.canada.ca/en/services/benefits/ei/ei-paper-reports.html paper copy]

===How long can I collect EI?===
You can get regular EI benefits for a period ranging from 14 to 45 weeks. The exact period depends on the [http://srv129.services.gc.ca/eiregions/eng/postalcode_search.aspx unemployment rate] in your region, and the number of insurable hours you worked in the qualifying period.

This [http://laws-lois.justice.gc.ca/eng/acts/e-5.6/page-38.html#h-72 chart] can help you figure out how long you’re eligible to collect.

===Might I have to repay some EI?===
Yes. After you file your income tax return, you may have to repay part of the EI benefits you received. It depends on your net income and the amount of EI benefits you received.

===Can I leave Canada temporarily and still get EI benefits?===
In some circumstances, you can leave Canada and still receive Employment Insurance benefits.

While traveling abroad, your EI benefits won’t be interrupted if you’re outside of Canada for '''up to seven consecutive days'' to do one of the following:
*Attend the funeral of a member of your immediate family or a close relative.
*Accompany a member of your immediate family to a medical facility, if the treatment isn’t available where they live in Canada.
*Visit a member of your immediate family who is seriously ill or injured.
*Attend a job interview.

You can also be outside of Canada for up to 14 days in a row if you’re looking for a job.

===Can I work or live outside Canada and still get EI?===
Typically, if you work outside of Canada for a Canadian company or the Canadian government, you’re eligible for EI benefits. However, you can’t collect EI benefits if your job is covered by a similar program in the country you’re working in.

If you live outside Canada, you may be eligible for some types of EI in certain cases. As well, you may be eligible if you live in Canada or the US and regularly cross the Canada/US border between your home and workplace.

The [https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/outside-canada.html Service Canada website] has more information about EI for workers and residents outside of Canada.

[updated June 2018]

'''The above was last reviewed for legal accuracy by [https://eralaw.ca/about-us/mark-w-hundleby/ Mark Hundleby], ERA Law.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=employ}}

Challenging a Will

2019-03-03T05:33:25Z

Dial-A-Law:

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = wills}}
If you think your spouse or parent did not leave you enough in their will, you may be able to challenge it with a wills variation claim. Learn what’s involved.

==Understand your legal rights==

===You can challenge a will if you are a spouse or child of the will-maker===
If your spouse or parent passed away, and you are unhappy with what they left you in their will, you can challenge the will in court. You may feel you didn’t receive a fair share. Or maybe they didn’t leave you anything at all.

A will-maker is generally allowed to divide their property however they want. However, under the [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec60_smooth law in BC], a spouse or child of a will-maker who has passed away can challenge the will in court if they feel it doesn’t “make adequate provision for the proper maintenance and support” for them. This is called a '''wills variation claim'''.

A friend or relative (other than a spouse or child) may be disappointed with what they got or didn’t get under a will. They '''cannot''' make a wills variation claim. However, they may have a claim in “'''unjust enrichment'''” against the estate. For example, if they agreed to provide personal services to an older person in exchange for money when the person dies, or a share of the estate, they may be able to make a claim the estate was unjustly enriched at their expense. The law of unjust enrichment is complex, and it is best to seek legal advice if you think this might apply in your situation.

===You don’t have to be married to be considered a spouse===
In this context, you are a deceased person’s spouse if you:
*were married when they died, or
*lived with them in a marriage-like relationship for at least two years immediately before they died.

Marriage-like relationships between people of the same sex are included, so a gay or lesbian partner can make a claim as a spouse if they meet the same two-year test.

===Children can be biological or adopted===
Children entitled to inherit from their parent’s estate include biological children of any age, born either within or outside of marriage, and legally adopted children.

Stepchildren are not considered children under wills variation law. Biological children adopted by someone else (unless they were adopted by the parent’s spouse) are not entitled to inherit from their biological parent’s estate.

===You can challenge a will if you think the will-maker wasn’t capable when they made the will===
Even if a will appears to meet the technical requirements of the law, a court may change it if it finds the will-maker lacked the '''mental capacity''' to make a will. A person can be eccentric or suffer from a mental disorder and still be able to make a will. However, they must have the capacity to:
*understand they’re making a will
*understand the effect of the will
*appreciate the amount of the property they’re distributing with the will
*understand who their next of kin are and appreciate their will should, if possible, provide for their spouse and children and not unfairly exclude them

===You can challenge a will if you suspect there was undue influence or coercion===
Sometimes unreasonable terms in a will raise the suspicion that the will-maker was coerced or forced into making the document. While there’s nothing illegal in suggesting to someone that they remember you in their will, the court can disallow any gift or inheritance in a will if it was given because of '''undue influence''' or pressure on the will-maker.

It often happens that an older person who has been befriended by another person will leave their entire estate to that person. The court will make sure that the older person was not “unduly influenced” and had the appropriate mental capacity to make the will.

==Understand the legal process==

===There’s a time limit to making a wills variation claim===
A wills variation claim must be started within '''180 days''' from the date the grant of probate or administration is issued by the probate registry. (The grant confirms the will is legally valid and can be acted on.) If a wills variation claim is brought more than 180 days after the grant is issued, the opportunity to bring a legal action to change the will is likely lost. If you want to make a claim, you should talk to a lawyer immediately.

===The court considers several factors when deciding whether to change a will===
The court can decide to vary a will if they think it is fair to do so in the particular circumstances of the case at hand. The court considers many things to decide whether the will adequately provided for the spouse or children of the deceased, including:
*the value and nature of the estate’s assets (for example, money and property the will-maker owned)
*the financial circumstances of the spouse or child challenging the will
*the financial circumstances of the other beneficiaries
*the character and conduct of the spouse or child towards the deceased
*whether the spouse or child depended financially on the deceased and to what extent
*evidence of the will-maker’s reasons for not fairly providing for their spouse or child

The court’s '''main consideration''' will be whether the will-maker acted as a judicious spouse or parent. For example, if a disabled adult child is left out of the will, the court may find there was a moral and legal obligation to provide for this child. Many people are concerned that if they leave their disabled adult child a share of their estate, that child will lose social assistance benefits. This is not always true. You should consult a lawyer to ensure you are protecting your assets for the benefit of your disabled child so they get the maximum benefit.

===The court considers what a reasonable will-maker would have done===
The court will consider what a '''reasonable will-maker''' would have done. If the will reflects irrational anger or favouritism or ignores the genuine needs of the will-maker’s spouse or children, without good reason, the court may change the will to make it fairer. The court can order that the estate provide for the spouse or children in a way that is “adequate, just and equitable” in the circumstances.

===The court may find that the will-maker wasn’t capable when they made the will===
If a court finds that the will-maker was not mentally capable when they made their will, it may decide the will isn’t valid. In these circumstances, if the will-maker:
*didn’t have a previous will, their estate will be divided according to [http://canlii.ca/t/52x69#sec20 BC law], or
*had another will, then their most recent will — made when they were mentally capable — is valid.

Under the law, the court can consider any record, document, email, or text message to help learn the deceased’s intentions for their estate. The court can then order the administrator of the estate to distribute the estate based on what the court believes the deceased wanted. This can give documents such as emails, letters, and text messages the same authority as a valid will. This part is relatively new to BC’s wills and estates law — so far, courts have been conservative in interpreting it. Still, if the deceased made a written record of how they wanted their estate to be handled — when they were mentally capable — the court can consider it.

===The court will cancel a will if there was undue influence or coercion===
The court will cancel any will it believes was made under undue influence or coercion. If it’s shown that a person was in a position where they could have dominated the will-maker or made the will-maker depend on them, then that person will have to prove they didn’t unduly influence the will-maker.

==Common questions==

===What if the person dies without a will?===
If someone dies without a will, their estate is distributed according to [http://canlii.ca/t/52x69#sec20 the law]. Generally, the estate goes to the spouse, children, and descendants (for example, grandchildren) of the deceased. If there’s no spouse or descendants, the estate will go to other relatives. Our information on [[What Happens When You Die Without a Will? (Script 177)|what happens when you die without a will (no. 177)]] explains in more detail how an estate is divided if there is no will.

===Do I need to see a lawyer?===
If you have a problem like the ones described, you should see a lawyer. There are deadlines, called '''limitation periods''', that must be met if you are a disappointed beneficiary and want to have a will changed. If you miss the deadlines, it may be too late. For example, if a spouse or child feels the will doesn’t adequately provide for their maintenance and support, they must sue within 180 days from the grant of probate (when the will is accepted by the court) and must serve the claim on the executor within 210 days of the grant of probate.

===What if I want to leave my spouse or child out of my will?===
If you’re thinking of leaving a spouse or child out of your will, or leaving them less than they might reasonably expect, see a lawyer. Our information on [[Making a Will and Estate Planning (Script 176)|making a will and estate planning (no. 176)]] explains this in more detail.

[updated October 2018]

'''The above was last reviewed for legal accuracy by [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=wills}}

When Someone Dies Without a Will

2019-03-03T05:20:36Z

Dial-A-Law: /* A minor’s share will be paid to the Public Guardian and Trustee */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = wills}}
If you don’t prepare a will, the law says how your property will get distributed. Learn what happens if you die without a will (and why you should prepare one).

==Understand the legal framework==

===Why you should prepare a will===
Every adult who owns assets or has a spouse or young children should have a will. But surprisingly, many people don’t. The few hours you spend planning your estate could save your spouse, children, and other beneficiaries much time, effort, and money. If you don’t have a will, you lose control over who gets how much of your estate and when. You also give up the right to appoint a guardian for any young children you have. And the costs to administer your estate may be much higher. Our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] provides guidance on how to prepare a will.

===The law says how your estate is distributed if you die without a will===
If you die without a will, BC’s ''[http://canlii.ca/t/52x69#sec20 Wills, Estates and Succession Act]'' says how your estate will be divided. Your money and property will be divided as follows:
*If you have '''a spouse and no descendants''', your estate goes to your spouse. A '''descendant''' means a surviving person of the generation nearest to you. This will almost always be children only. For example, your grandchildren would only get a share of your estate if their parent (your child) died before you.
*If you have '''a spouse and descendants''', then what goes to whom depends on whether the descendants are also your spouse’s descendants. If you have a spouse and children — all of whom are also your spouse’s children — your spouse will get the first $300,000 of your estate and half of what’s left over. The other half will be divided equally among the children.
*If ''any'' of your children are not also your spouse’s children, your spouse gets the first $150,000 of your estate. Then one half of what’s left over also goes to your spouse. The other half is divided among your descendants (usually your children). Your spouse has the right to acquire the family home from your estate as part of their share.
*If you have '''more than one spouse''' (possible under [http://canlii.ca/t/52x69#sec2 the law]), they share the spouse’s share equally (unless they agree or a court decides differently).
*If you have '''no spouse''', then your estate is divided among your descendants equally.
*If you have '''no spouse and no descendants''', then your estate goes to your parents. If your parents aren’t alive, it goes to your brothers and sisters, divided among them equally.

There are other rules to figure out which next of kin may receive your estate if you have no spouse or descendants, and your parents and siblings aren’t alive or you have no siblings.

If no one qualifies under the rules as your next of kin, your estate goes to the provincial government.

===You don’t have to be married to be considered a spouse===
In this context, a '''spouse''' includes a person who has lived with you for at least two years in a marriage-like relationship immediately before your death. Same-sex common-law partners can be partners.

This means that more than one person could be your spouse and share in your estate.

===The court may need to appoint someone to look after your children===
With a will, you can appoint a '''guardian''' to look after any young children you leave behind after you die. If you die without a will, the court will need to appoint a guardian if you have children under 19 and the other parent isn’t alive.

===A minor’s share will be paid to the Public Guardian and Trustee===
If you die without a will, if anyone who is entitled to a share in your estate is not yet 19 years old, [http://canlii.ca/t/52x69#sec153 the law] says their share will need to be paid to the '''Public Guardian and Trustee'''. [http://www.trustee.bc.ca/Pages/default.aspx This public body] will become the trustee and will hold a minor’s share in an estate until they’re 19 years old. The child’s parent or guardian would have to apply to the Public Guardian and Trustee for any money needed for things like living expenses or education. This can be a hardship if the child is quite young and the parent or guardian needs the money for day-to-day expenses.

When the child turns 19, they can demand all their money — no matter how much it is or whether they are mature or financially responsible.

In contrast, if you have a will, you can make sure it is written so a minor’s share doesn’t need to be paid to the Public Guardian and Trustee. You can create a '''trust''' for gifts you leave to your minor children or anyone else who might still be a minor when you die, and appoint a trustee to manage the minor’s share until they turn 19. (If you don’t create a trust, a minor’s share might still be paid to the Public Guardian and Trustee, even if you have a will. Talk to a lawyer about drafting a trust for minors.)

{| class="wikitable"
|align="left"|'''Tip'''
When you prepare a will, you have the choice to require that a minor’s share be held in trust beyond age 19. And you can direct that the share be used for the child’s benefit, including support and higher education, without government involvement.
|}

===The court will appoint someone to control your estate===
If you don’t have a will then you haven’t appointed an executor to manage your estate when you die. So someone will need to apply to court so they can legally deal with your estate. The person appointed by the court to manage the estate is called an '''administrator'''.

===There are certain people who can apply to administer your estate===
The people who can apply to '''administer''' your estate are [http://canlii.ca/t/52x69#sec130 listed under the law] by order of priority. Your spouse is the first person who can apply or nominate someone else to apply. If you have no spouse or if your spouse is unwilling or unable to be the administrator, then a relative can apply. If there are no relatives willing or able to do this, then any other eligible person can apply to be the administrator. This may include a friend of yours, or a professional such as a lawyer or accountant. The Public Guardian and Trustee — as Official Administrator for the province of BC — might also apply to administer your estate, if no one else is willing to do it.

====Certain conditions may apply to appointing an administrator====
If you have debts when you die, the person who applies to be the administrator must get your creditors to agree to the application. Also, the person who applies may have to get the agreement of other people who could be appointed administrator. And the person may have to secure (deposit) money with the court (called a '''bond'''), to ensure they do the work honestly and competently.

===The duties of an administrator===

An administrator must:
*Make funeral arrangements, if required.
*Locate all the estate’s assets and make sure they’re secure; for example, the administrator must ensure that cars or buildings are insured, and that important documents are in a safe place.
*Advertise in the [https://www.crownpub.bc.ca/Home/Gazette BC Gazette] for potential creditors.
*Sell assets that need to be sold. This includes listing and selling real estate after having it appraised; selling stocks, bonds, and other securities; and valuing and disposing of other personal belongings. *Sometimes, instead of being sold, assets may be given a certain value and transferred to an heir as part of their share of the estate.
*Locate all family members who may be heirs to the estate. This may involve contacting people outside of Canada.
*File all necessary income tax returns and obtain an income tax clearance from the Canada Revenue Agency, confirming that all income tax has been paid.
*Put all money in an estate account and use it to pay the estate's debts, income taxes, legal and accounting expenses, and possibly an administration fee.
*Pay any money left over to the heirs (also called '''intestate successors''').
*Report to the intestate successors listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.

==Common questions==

===Do I need a lawyer or notary public to help with estate planning?===
With good do-it-yourself materials, you can write a simple will. The will can take care of basic concerns, such as leaving a home, investments, and personal items to loved ones.

But by having your will prepared by an experienced estates lawyer or notary public, you can be confident your affairs will be handled according to your wishes. It’s the safest way to avoid mistakes.

As well, preparing a will involves much more than just signing a document. It involves reviewing your potential estate and planning to minimize fees, taxes, and costs to deal with your estate. Obtaining professional help can help you minimize these expenses. Our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] explains this in more detail.

==Get help==

===With more information===
The '''Public Guardian and Trustee of British Columbia''' is a government office that may agree to administer an estate when someone dies without a will.
:Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
:Toll-free: 1-800-663-7867
:Web: [http://www.trustee.bc.ca/ trustee.bc.ca]

[updated February 2018]

'''The above was last reviewed for legal accuracy by [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=wills}}

When Someone Dies Without a Will

2019-03-03T05:19:03Z

Dial-A-Law: /* The law says how your estate is distributed if you die without a will */

{{Dial-A-Law Blurb}}

{{Dial-A-Law TOC|expanded = wills}}
If you don’t prepare a will, the law says how your property will get distributed. Learn what happens if you die without a will (and why you should prepare one).

==Understand the legal framework==

===Why you should prepare a will===
Every adult who owns assets or has a spouse or young children should have a will. But surprisingly, many people don’t. The few hours you spend planning your estate could save your spouse, children, and other beneficiaries much time, effort, and money. If you don’t have a will, you lose control over who gets how much of your estate and when. You also give up the right to appoint a guardian for any young children you have. And the costs to administer your estate may be much higher. Our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] provides guidance on how to prepare a will.

===The law says how your estate is distributed if you die without a will===
If you die without a will, BC’s ''[http://canlii.ca/t/52x69#sec20 Wills, Estates and Succession Act]'' says how your estate will be divided. Your money and property will be divided as follows:
*If you have '''a spouse and no descendants''', your estate goes to your spouse. A '''descendant''' means a surviving person of the generation nearest to you. This will almost always be children only. For example, your grandchildren would only get a share of your estate if their parent (your child) died before you.
*If you have '''a spouse and descendants''', then what goes to whom depends on whether the descendants are also your spouse’s descendants. If you have a spouse and children — all of whom are also your spouse’s children — your spouse will get the first $300,000 of your estate and half of what’s left over. The other half will be divided equally among the children.
*If ''any'' of your children are not also your spouse’s children, your spouse gets the first $150,000 of your estate. Then one half of what’s left over also goes to your spouse. The other half is divided among your descendants (usually your children). Your spouse has the right to acquire the family home from your estate as part of their share.
*If you have '''more than one spouse''' (possible under [http://canlii.ca/t/52x69#sec2 the law]), they share the spouse’s share equally (unless they agree or a court decides differently).
*If you have '''no spouse''', then your estate is divided among your descendants equally.
*If you have '''no spouse and no descendants''', then your estate goes to your parents. If your parents aren’t alive, it goes to your brothers and sisters, divided among them equally.

There are other rules to figure out which next of kin may receive your estate if you have no spouse or descendants, and your parents and siblings aren’t alive or you have no siblings.

If no one qualifies under the rules as your next of kin, your estate goes to the provincial government.

===You don’t have to be married to be considered a spouse===
In this context, a '''spouse''' includes a person who has lived with you for at least two years in a marriage-like relationship immediately before your death. Same-sex common-law partners can be partners.

This means that more than one person could be your spouse and share in your estate.

===The court may need to appoint someone to look after your children===
With a will, you can appoint a '''guardian''' to look after any young children you leave behind after you die. If you die without a will, the court will need to appoint a guardian if you have children under 19 and the other parent isn’t alive.

===A minor’s share will be paid to the Public Guardian and Trustee===
If you die without a will, if anyone who is entitled to a share in your estate is not yet 19 years old, [http://canlii.ca/t/52x69#sec153 the law] says their share will need to be paid to the '''Public Guardian and Trustee''. [http://www.trustee.bc.ca/Pages/default.aspx This public body] will become the trustee and will hold a minor’s share in an estate until they’re 19 years old. The child’s parent or guardian would have to apply to the Public Guardian and Trustee for any money needed for things like living expenses or education. This can be a hardship if the child is quite young and the parent or guardian needs the money for day-to-day expenses.

When the child turns 19, they can demand all their money — no matter how much it is or whether they are mature or financially responsible.

In contrast, if you have a will, you can make sure it is written so a minor’s share doesn’t need to be paid to the Public Guardian and Trustee. You can create a '''trust''' for gifts you leave to your minor children or anyone else who might still be a minor when you die, and appoint a trustee to manage the minor’s share until they turn 19. (If you don’t create a trust, a minor’s share might still be paid to the Public Guardian and Trustee, even if you have a will. Talk to a lawyer about drafting a trust for minors.)

{| class="wikitable"
|align="left"|'''Tip'''
When you prepare a will, you have the choice to require that a minor’s share be held in trust beyond age 19. And you can direct that the share be used for the child’s benefit, including support and higher education, without government involvement.
|}

===The court will appoint someone to control your estate===
If you don’t have a will then you haven’t appointed an executor to manage your estate when you die. So someone will need to apply to court so they can legally deal with your estate. The person appointed by the court to manage the estate is called an '''administrator'''.

===There are certain people who can apply to administer your estate===
The people who can apply to '''administer''' your estate are [http://canlii.ca/t/52x69#sec130 listed under the law] by order of priority. Your spouse is the first person who can apply or nominate someone else to apply. If you have no spouse or if your spouse is unwilling or unable to be the administrator, then a relative can apply. If there are no relatives willing or able to do this, then any other eligible person can apply to be the administrator. This may include a friend of yours, or a professional such as a lawyer or accountant. The Public Guardian and Trustee — as Official Administrator for the province of BC — might also apply to administer your estate, if no one else is willing to do it.

====Certain conditions may apply to appointing an administrator====
If you have debts when you die, the person who applies to be the administrator must get your creditors to agree to the application. Also, the person who applies may have to get the agreement of other people who could be appointed administrator. And the person may have to secure (deposit) money with the court (called a '''bond'''), to ensure they do the work honestly and competently.

===The duties of an administrator===

An administrator must:
*Make funeral arrangements, if required.
*Locate all the estate’s assets and make sure they’re secure; for example, the administrator must ensure that cars or buildings are insured, and that important documents are in a safe place.
*Advertise in the [https://www.crownpub.bc.ca/Home/Gazette BC Gazette] for potential creditors.
*Sell assets that need to be sold. This includes listing and selling real estate after having it appraised; selling stocks, bonds, and other securities; and valuing and disposing of other personal belongings. *Sometimes, instead of being sold, assets may be given a certain value and transferred to an heir as part of their share of the estate.
*Locate all family members who may be heirs to the estate. This may involve contacting people outside of Canada.
*File all necessary income tax returns and obtain an income tax clearance from the Canada Revenue Agency, confirming that all income tax has been paid.
*Put all money in an estate account and use it to pay the estate's debts, income taxes, legal and accounting expenses, and possibly an administration fee.
*Pay any money left over to the heirs (also called '''intestate successors''').
*Report to the intestate successors listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.

==Common questions==

===Do I need a lawyer or notary public to help with estate planning?===
With good do-it-yourself materials, you can write a simple will. The will can take care of basic concerns, such as leaving a home, investments, and personal items to loved ones.

But by having your will prepared by an experienced estates lawyer or notary public, you can be confident your affairs will be handled according to your wishes. It’s the safest way to avoid mistakes.

As well, preparing a will involves much more than just signing a document. It involves reviewing your potential estate and planning to minimize fees, taxes, and costs to deal with your estate. Obtaining professional help can help you minimize these expenses. Our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] explains this in more detail.

==Get help==

===With more information===
The '''Public Guardian and Trustee of British Columbia''' is a government office that may agree to administer an estate when someone dies without a will.
:Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
:Toll-free: 1-800-663-7867
:Web: [http://www.trustee.bc.ca/ trustee.bc.ca]

[updated February 2018]

'''The above was last reviewed for legal accuracy by [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert.'''

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{{Dial-A-Law Copyright}}

{{Dial-A-Law_Navbox|type=wills}}