March 2015 - Garton & Harris

Class certification for class action lawsuits

March 23, 2015/in Class Action Litigation /by gartonandharris

When two or more people wish to sue the same defendant for the defendant’s wrongful actions in British Columbia, they may do so either separately or instead try to file a class action civil lawsuit. Provincial law outlines the procedure plaintiffs seeking to file a class action lawsuit must go through in order to file.

The Class Proceedings Act requires those seeking to file as a class must first seek certification from the court. The pleading must identify a minimum of two or more people with common or similar issues and a clearly identifiable cause of action. Their must also be a plaintiff who can fairly and appropriately represent the interests of the other class members. The representative plaintiff must also have a plan to identify and contact class members, and they cannot have any conflict with another class member’s issue.

The court considers several factors when determining whether a class action lawsuit is the preferable manner in which to proceed. Whether the common issues predominate over other individual ones and whether other approaches to resolve the issues would be less efficient are both factors for certification. The court will also consider whether a large number of class members would have valid interests in separate prosecutions as well as whether the class action would involve claims that have already been litigated.

Class action litigation is sometimes preferable to filing a large number of separate lawsuits against the same defendant. Class members whose interests are represented by the representative plaintiff may benefit due to the better efficiency provided by class certification. People who are considering filing a lawsuit against a defendant and who believe there are more possible plaintiffs may want to speak to a lawyer about their options.

Grounds for appeal of a criminal conviction

March 17, 2015/in Federal Appeals /by gartonandharris

In British Columbia, the grounds for appealing a federal conviction are governed by Criminal Code sections 674 and 675. Valid grounds for appeal vary based on the specifics of the case, conviction and defendant. The rules are different, for example, if the case was decided on summary conviction or by regular verdict.

A person who has been convicted in trial court proceedings may file a federal appeal against the conviction on any ground involving a question of law or any ground involving a question of fact or of mixed fact and law if they have leave of court or another certification that the case is proper for appeal. The appeals court may determine that valid grounds for appeal exist in other cases as well.

A person may file an appeal following a second-degree murder conviction if he or she was sentenced to life in prison without possibility of parole for more than ten years. On appeal, the court will consider the appropriateness of the length of the no-parole period. Similarly, a person may appeal the length of parole ineligibility if he or she was under 18 years of age at the time of the offence and was convicted of first- or second-degree murder and sentenced to life in prison without the possibility of parole for a number of years greater than the minimum required by law.

Those who have been convicted in trial court proceedings may appeal the sentence, with leave of court, in many cases. A lawyer with experience in federal appeals may be able to assist a person after conviction by examining the facts of the case to see if there are grounds for appeal. An attorney may be able to draft and file the documents necessary or argue on behalf of a client before the court of appeals.

Challenging a will in British Columbia

March 12, 2015/in Wills /by gartonandharris

In some cases, after a loved one has passed, family members may be shocked at a will that was left behind. You may question whether your loved one validly executed the will, and you may not know what to do to challenge seemingly unfair or nonsensical distributions of assets.

Provincial law allows people to challenge a will. A common ground for a challenge may include situations in which the requisite number of witnesses to the will or proper signatures were not met. You may also have concerns that your loved one was coerced into writing a will for the benefit of the person influencing them to do so, or that they did not have the mental capacity needed to draft the will at the time it was written.

Other problems with wills that may lead to challenges include those that do not sufficiently provide for a spouse and children who are left behind. If the document fails to include provisions for assets that are outside of the will but which were intended to be distributed to certain beneficiaries, this might also be grounds for a challenge. In some cases, you may also be unhappy with the actions of the trustee or estate administrator and believe they should be removed or replaced.

At Garton & Harris, our lawyers experienced in helping their clients with will challenges. We understand that challenging a will after a loved one’s death may stir heightened emotions combined with grief, and we try to approach each client’s case accordingly. Our firm is also familiar with the type of evidence that is needed in order to mount a successful will challenge, and we may be able to help our clients gather the needed documentation to support their cases. Will challenges often bring many questions, and so we have compiled information to help our potential clients. If you would like to learn more, you may want to review our page that discusses will challenges.

Safety deposit boxes and estate administration

March 5, 2015/in Estate Administration & Probate /by gartonandharris

When a person in British Columbia dies, leaving behind a safety deposit box leased or rented either solely in his or her name or shared with another person, the law provides how the box should be opened and handled. This is important to ensure that the contents of the safety deposit box are correctly accounted for and included in the deceased person’s estate.

The institution where the safety deposit box is located is not able to let people remove the box or its contents from the location until either the estate’s representative or the other person whose name is also on the lease comes to the institution. The representative or co-owner must then prepare an inventory of the contents of the box in the presence of a person who is in control of where the box is held. He or she must leave a copy of that inventory inside of the box before removing the contents of it.

If a will is contained inside of the safety deposit box, the estate representative may remove the will after preparing the inventory. The inventory must be left in the safety deposit for at least 12 months, and a copy of it must also be kept by the person in control of the location for 12 months as well.

Although people may not think about what will happen to safety deposit boxes following death, many people keep copies of their wills, other important documents and valuables in them. Laws concerning estate administration are very specific in order to protect the assets of the estate. In that way, people can be assured their assets will pass to the people to whom they intend. If a person has a safety deposit box, they may want to inform their wills and estates lawyer of its location and contents while completing their estate plan.

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