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Difference between revisions of "Clinician Guide for Consumer Transactions (11:X)"
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Clinician Guide for Consumer Transactions (11:X) (view source)
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, 21:13, 14 June 2016→6. Unconscionability, Undue Influence, and Duress
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Unconscionability, undue influence, and duress can all make a contract voidable. There are two requirements for unconscionability: an imbalance in the relationship of the parties, and an imbalance in the contract. Unconscionability is also dealt with in the ''BPCPA'', ss 8-10. See ''Morrison v Coast Finance Ltd'' (1965) 55 DLR (2d) 710 and ''Harry v Kreutziger'' (1978) 95 DLR 93d) 231 for examples of unconscionability. Undue influence is the abuse of a relationship of trust and confidence to strongly influence another to make a contract. See ''Geffen v Goodman Estate'' (1991) 2 SCR 353 for an example of undue influence. Duress is the coercion of the will to the point where it vitiates consent. | Unconscionability, undue influence, and duress can all make a contract voidable. There are two requirements for unconscionability: an imbalance in the relationship of the parties, and an imbalance in the contract. Unconscionability is also dealt with in the ''BPCPA'', ss 8-10. See ''Morrison v Coast Finance Ltd'' (1965) 55 DLR (2d) 710 and ''Harry v Kreutziger'' (1978) 95 DLR 93d) 231 for examples of unconscionability. Undue influence is the abuse of a relationship of trust and confidence to strongly influence another to make a contract. See ''Geffen v Goodman Estate'' (1991) 2 SCR 353 for an example of undue influence. Duress is the coercion of the will to the point where it vitiates consent. | ||
=== 7.Illegality In | === 7. Illegality === | ||
In the past, Canadian courts would not enforce those contracts created for an illegal purpose. | |||
A leading case in this area is ''International Paper Industries Ltd. v. Top Line Industries Inc.'', [1996] B.C.J. 1089, in which a lease for a portion of land was declared invalid, preventing the tenant from exercising the option to renew, because the land was subdivided contrary to the ''Land Title Act'', RSBC 1996, c 250. | |||
Today, courts may enforce contracts made for an illegal purpose if inequity would otherwise result, or if the purpose of the governing statute is not undermined. See ''Still v Minister of National Revenue'', [1998] 1 FC 549 (CA). The Court will consider the purpose and object of a statutory prohibition when deciding whether or not the contract is enforceable. ''Continental Bank Leasing Corp v Canada'', [1998] 2 SCR 298, at para 67 in particular offers a good summary of the law of illegality. | |||
== E. Determine the Limitation Period for Making a Claim == | |||
With a new ''Limitation Act'', SBC 2012, c 13 now in force, it is vital that students determine whether the new or the old legislation applies to a particular legal matter. If the act or omission occurred after June 1, 2013, the new Act applies and the basic limitation period of two years set out in s 6(1) applies. Note, however, that if the claim was discovered before June 1, 2013, the former ''Limitation Act'' applies. | |||
If the former Act applies and the client is suing for breach of contract, s. 3(5) of the ''Limitation Act'', RSBC 1996, c 266 states that the limitation period for breach of contract is '''six years'''. However, under s. 3(2)(a), where damages claimed arise from physical damage to persons or property, the limitation period is '''two years''', even where the claim is based on contract. Also, if the client is considering suing for negligence as well, the limitation period is '''two years'''. Therefore, to take advantage of all the possible remedies available, the prudent course is to start an action for breach of contract and file the notice of claim within two years of the date when the cause of action arose. | |||
== F. Civil Resolution Tribunal == | |||
'''Note:''' British Columbia's new civil ''Resolution Tribunal Act'' received Royal Assent in May 2012. The Act was supposed to come into force in Spring 2015. However, most of its provisions are still not in force. | |||
The Act establishes a new dispute resolution body, the Civil Resolution Tribunal. It is anticipated that the Tribunal will begin operation sometime in 2015. Once operational, the Tribunal will provide a new venue for the resolution of small claims matters. I will encourage people to use a broad range of collaborative dispute resolution tools to resolve their disputes as early as possible, while still preserving adjudication as a last resort. | |||
The Act will provide the Civil Resolution Tribunal to resolve: | |||
*Small claims disputes where the parties decide to take the matter to the tribunal instead of the court, up to a maximum value of $25,000 for: | |||
**debt or damages; | |||
**recovery of personal property; | |||
**specific performance of an agreement relating to personal property or services; or | |||
**relief from opposing claims to personal property | |||
*Strata disputes between owners of strata properties and strata corporations for a wide variety of matters such as: | |||
**non-payment of monthly strata fees or fines; unfair actions by the strata corporation or by people owning more than half of the strata lots in a complex; uneven, arbitrary or non-enforcement of strata bylaws (such as noise, pets, parking, rentals); issues of financial responsibility for repairs and the choice of bids for services; irregularities in the conduct of meetings, voting, minutes or other matters; interpretation of the legislation, regulations or bylaws; and issues regarding the common property. | |||
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