Recent Work Articles

EKB Lawyers Represent Form Real Estate Advisors Inc. in Sale of Assets of Real Estate Brokerage Business to Leading American Brokerage Firm

EKB lawyers represented Form Real Estate Advisors Inc. in the sale of Form’s real estate brokerage to Marcus & Millichap Inc. (NYSE:MMI).  Business lawyers Fraser Hartley and Riley Lalonde led the EKB team acting for Form with assistance from Katie Gordon.

Founded in 2010, Form Real Estate Advisors has developed a highly respected brand and extensive real estate market presence in the retail segment. The sale is expected to expand Marcus & Millichap’s presence in Western Canada.

For over 40 years, EKB has represented companies in mergers and acquisitions in British Columbia, in Canada, and internationally. The firm’s lawyers are consistently recognized for their expertise in M&A law by leading directories including Chambers Global, Who’s Who Legal, Lexpert, and Best Lawyers.

Frazer Hartley a business lawyer at the Vancouver law firm EKBContact:
Fraser Hartley
Partner
604.661.1098
fhartley@ekb.com

EKB Lawyers Represent Pembridge Resources plc in Acquisition of Minto Mine, Yukon

EKB lawyers represented Pembridge Resources plc (LON:PERE) in their acquisition of Minto Explorations Ltd., the owner of the Minto copper-gold-silver mine in Yukon, from Capstone Mining Corp (TSE:CS).

The consideration for the purchase consists of up to US$20 million in total payments due to Capstone payable out of future cash flows and based on certain hurdles linked to production levels at Minto as well as future copper prices.

EKB also represented Pembridge in connection with securing a US$10 million financing to fund the recommencement of operations at the Minto mine. Financing has been provided by Copper Holding LLC, a New York-based private equity group, and Cedro Holdings I LLC, an entity managed by Lion Point Capital L.P., a New York-based asset manager.

Pembridge expects to recommence commercial production at Minto during the fourth quarter of 2019. David Linsley, chief executive officer of Pembridge, described the acquisition of Minto as a “transformational opportunity for Pembridge and its shareholders”.

EKB business lawyers David Allman and Kelly Samuels led the EKB team acting for Pembridge, with assistance from Riley Lalonde, Katie Gordon, and Larissa Dziubenko. EKB managed the transaction on behalf of Pembridge, providing strategic and tactical advice and leading the negotiations of the legal documentation.

For over 40 years, EKB has represented exploration and mining companies at all stages of project development in British Columbia, in Canada, and internationally. The firm’s lawyers are consistently recognized for their expertise in mining law by leading directories including Chambers Global, Who’s Who Legal, Lexpert, and Best Lawyers.

David Allman a business lawyer at the Vancouver law firm EKB

David Allman

Kelly Samuels a business and fintech lawyer at the Vancouver law firm EKB

Kelly Samuels

EKB advises RentMoola on Series A Fundraising

EKB recently advised RentMoola Payment Solutions Inc. on its $3.5 million offering of Series A Preferred Shares. The offering, which was fully subscribed, was backstopped by Ayrshire Real Estate Management Inc. and conducted by way of private placement to accredited investors.

RentMoola is a Vancouver based fintech company that offers payment solutions to tenants and landlords.

The EKB team was led by Fraser Hartley and assisted by associate Ian van den Dolder and articling student Jake Schroeder. EKB provided RentMoola with legal advice regarding the offering and assisted in closing the offering and facilitating the special general meeting of shareholders needed to authorize the new Series A Preferred shares.

Frazer Hartley a business lawyer at the Vancouver law firm EKBContact:
Fraser Hartley
Partner
604.661.1098
fhartley@ekb.com

EKB Represents the Sellers of Jet Global in a Merger with insightsoftware

EKB was the lead lawyers for the shareholders of Software Professionals, Inc., the parent of Jet Global Data Technologies, Inc., in the sale of the shares of Software Professionals to TA Associates Management LP and the merger of Jet Global and insightsoftware, a subsidiary of TA.

The letter of intent between Software Professionals and TA was entered into on February 25, 2019, and the sale and merger were completed on April 30, 2019. This was a quick close for a transaction of this size and complexity and was accomplished, in large part, by the focus and diligence of our clients and the lawyers at EKB.

TA acquired Jet Global to strengthen insightsoftware’s Excel-based reporting capabilities designed specifically for users of Microsoft Dynamics.

About Jet Global

Founded in 2002, Jet Global is headquartered in Portland, Oregon and has offices in 14 regions, across 24 time zones, and currently has over 14,000 companies using its products in 94 countries.

Jet Global provides solutions for executives, finance professionals, and managers by providing unparalleled, secure access to their data. Jet Global’s solutions are “cost effective, provide rapid time-to-value, and are built specifically for the needs of Microsoft Dynamics ERP users”.

“When we needed guidance, support, and expertise regarding something as important to us as the sale of our business, we turned to the team at EKB.  

EKB was recommended to us by a colleague that described Bill Hartley and his team as highly knowledgeable legally and in the software industry. We found both to be true and increasingly relied on the team for guidance and execution on legal projects.  The EKB team consistently listened, learned and delivered as promised.  Fraser Hartley, Larissa Dziubenko, and Jake Schroder did an amazing job when they were asked complete a big task in a short time. The team was really effective and we got the results that we needed at each milestone. I highly recommend EKB.” — Joe Little, CEO Jet Global (retired)

About TA Associates Management LP and the Merger

TA is a Boston based private equity firm with over 50 years of experience.

TA acquired Software Professionals as a strategic acquisition to merge Jet Reports with insighsoftware. In 2018, TA merged Global Software and Hubble, both ERP reporting businesses, to create insightsoftware. After creating insightsoftware, TA acquired Excel4apps and CXO, strengthening insightsoftware’s position in reporting software. The acquisition of Jet Reports will create a dominant ERP reporting company.

Our Team

The team from EKB was led by Bill Hartley, an experienced solicitor, and included business lawyers Fraser Hartley and Larissa Dziubenko, with assistance from articling student Jake Schroeder. EKB managed the transaction on behalf of the sellers, providing strategic and tactical advice and leading the negotiations of the legal documents.

EKB worked closely with Brent Jones and Alex Imas of the Seattle office of Garvey Schubert Barer, a Globalaw partner, and John Maragoudakis of the New York office of Anderson Tax. GSB provided advice on US law to the sellers.  Anderson provided tax advice to the sellers.

EKB provides clients with strategic advice on all aspects of local and cross-border mergers and acquisitions. Our focused M&A team is ready to respond efficiently to your transaction, regardless of timing, size, scope or complexity.

Frazer Hartley a business lawyer at the Vancouver law firm EKBContact:
Fraser Hartley
Partner
604.661.1098
fhartley@ekb.com

EKB Represents SmartLynx Airlines SIA in $7.5 million Private Placement Investment with Canada Jetlines Ltd.

EKB’s Business Law team, led by Fraser Hartley and Riley Lalonde, and assisted by Larissa Dziubenko and Jake Schroeder, successfully acted for SmartLynx Airlines SIA in its $7.5 million private placement investment in Canada Jetlines Ltd.

With its investment, SmartLynx acquired subscription receipts that convert to shares and warrants of Canada Jetlines when certain conditions are met. With the closing of the initial $7.5 million investment, SmartLynx also received the option to acquire an additional $7.5 million in shares of Canada Jetlines.

In connection with its investment, SmartLynx also entered into agreements to provide ACMI (Aircraft-Crew-Maintenance-Insurance) and consulting services to Canada Jetlines.

SmartLynx Airlines SIA was founded in 1992 as a private airline. Today, it is the leading Airbus A320 ACMI provider in the EU. In 2019, SmartLynx’s fleet will consist of 20 aircraft, flying routes in Europe and Asia.

Canada Jetlines Ltd. (TSX-V: JET) is aiming to become Canada’s first true Ultra-Low-Cost Carrier (ULCC) airline, with plans to operate flights across Canada and provide non-stop service from Canada to the United States, Mexico, and the Caribbean.

Frazer Hartley a business lawyer at the Vancouver law firm EKBContact:
Fraser Hartley
Partner
604.661.1098
fhartley@ekb.com

EKB Represents Great Bear Resources Ltd. in $3.5 million Bought Deal Private Placement Financing

Members of EKB’s Business Law team, led by Alan Monk and assisted by Katie Gordon, were pleased to act for Great Bear Resources Ltd. in a bought deal private placement financing of 1,000,000 “flow-through” common shares at $3.50 per share for gross proceeds of $3,500,000.

Great Bear is currently engaged in a 30,000 metre, approximately 150 drill hole program at its flagship Dixie property located in Red Lake, Ontario, which is expected to continue through 2018 and 2019. Great Bear intends on using the gross proceeds of the financing on its exploration programs.

For over 40 years, EKB has represented exploration and mining companies at all stages of their development in respect of their projects in British Columbia, elsewhere in Canada and around the world.

Alan Monk a business lawyer at Vancouver law firm EKBContact:
Alan Monk
Associate Counsel
604.661.1055
amonk@ekb.com

EKB Represents City Transfer Inc. and Augusta Recyclers Inc. in Comprehensive Refinancing Transaction.

Members of EKB’s Business Law team, led by Fraser Hartley and Larissa Dziubenko, acted for City Transfer Inc. and Augusta Recyclers Inc. in a comprehensive refinancing transaction.

As part of the transaction, EKB assisted City Transfer and Augusta Recyclers to:

  • Enter into new credit facilities;
  • Negotiate and enter into long-term agreements with service providers;
  • Retire indebtedness under City and Augusta’s existing mortgage and working capital loans.

Run by the Long family since 1947, City Transfer is a leading provider of freight transfers, transportation services and logistics for BC’s water-locked coastal communities. EKB provided City Transfer with strategic advice for structuring and executing on each component of the transaction.

Frazer Hartley a business lawyer at the Vancouver law firm EKBContact:
Fraser Hartley
Partner
604.661.1098
fhartley@ekb.com

EKB Represents Owners in Sale of Delta View Campus of Care

EKB’s Business Law team, led by Bill Hartley and assisted by Riley Lalonde, Ian van den Dolder, Aileen Busanic, and Fraser Hartley, successfully completed the sale of Delta View Campus of Care in a recent transaction which closed on September 14, 2018.

Delta View Campus of Care has provided assisted living, complex care, respite services, and dementia care for over 42 years under the Devji Group, and will continue to provide these services under the new owners.

EKB assisted the Devji Group with strategic advice regarding the sale, the legal due diligence, preparation and negotiation of the acquisition documents, and a tax reorganization.

 

Frazer Hartley a business lawyer at the Vancouver law firm EKBContact:
Fraser Hartley
Partner
604.661.1098
fhartley@ekb.com

I Declare: This Mortgage is Unenforceable

Angela Folino and Laura Morrison recently succeeded in obtaining a declaration that a mortgage was unenforceable and an order paying out funds that had been paid into court to secure the mortgage’s discharge.

The Mortgage

In Chan v. 0975713 B.C. Ltd., 2018 BCSC 872, the (now deceased) mortgagor entered into the mortgage at issue in lieu of providing a cash deposit as security for a commercial lease. Justin Chan, now deceased, was one of a group of seven tenants who each leased one commercial unit in a building in Richmond, BC. The tenant group paid a cash deposit as security for the leases, but soon into the lease term the landlord demanded a further deposit of $40,000, which the tenant group could not provide. Instead, Mr. Chan agreed to a mortgage in favour of the respondent numbered company over his condominium.

Although the mortgage itself appeared to be a standard mortgage in the principal amount of $40,000 with interest payable at 12% per annum payable on demand, it was not disputed by the respondent mortgagee that no money was ever advanced under the mortgage and that its purpose was to secure the collateral obligations of Mr. Chan and the rest of the tenant group under their leases.

The Lease

The tenants only ever occupied two of the seven units, one for two months and one for three months. They moved into the units in October and November 2013 and moved out at the end of December 2013, before the six-month lease term expired. The landlord never made any claims against the tenants for breach of lease for either unpaid rent or physical damage to the units.

The Respondent’s Refusal to Discharge the Mortgage

Some time later, when attempting to obtain financing for an unrelated business venture, Mr. Chan attempted to secure the discharge of the mortgage, since the lease had been terminated and the mortgage no longer had a valid purpose. The respondent repeatedly refused to voluntarily discharge the mortgage, even after Mr. Chan’s death and following attempts by lawyers engaged by the estate to do so.

The Court Proceedings and the Decision

In the petition, Mrs. Chan sought to have the mortgage declared unenforceable and an order that funds that she had paid into court to secure the discharge of the mortgage (in order to allow the sale of Mr. Chan’s condominium to complete) be paid out to her.

The court agreed with each of the petitioner’s three arguments, which were:

1. The limitation period for the enforcement of the mortgage as collateral security started to run at the same time as the limitation period of the underlying obligation. In other words, since the mortgage was security for the tenants’ obligations under the leases, the limitation period started to run when the leases were terminated, assuming that such termination was a breach of the leases. The limitation period started to run at the end of December 2013 (when the tenants moved out) and expired at the end of December 2015. Therefore, the respondent was out of time to enforce the mortgage;

2. Even if the landlord had a valid claim, the respondent failed to provide any evidence of a debt owing by the tenant, or of the cost of any physical damage that the tenants caused that would allow the respondent to enforce the mortgage, despite having had many years to do so in response to multiple requests by Mr. Chan or his representatives; and

3. Since the respondent company had been dissolved for more than two years, all of its assets, including the mortgage, had escheated to the government and the respondent therefore no longer owned them. Further, the respondent’s representatives had taken no steps to restore the company such that it could take the mortgage back from the government. That being the case, and since the government advised the petitioner that it would not participate in the proceedings, the respondent had no right to enforce the mortgage.

Conclusion

In the result, the court granted the relief sought and made a declaration that the mortgage was unenforceable, with alternative declarations that the mortgage had been satisfied in whole or that the respondent had no interest in the mortgage. The court also ordered that the funds that had been paid into court, plus accrued interest, would be paid to Mrs. Chan, and that Mrs. Chan was awarded her costs of the proceeding against the respondent.

 

Laura Morrison a business litigtaion lawyer at the Vancouver law firm EKBContact:
Laura Morrison
Associate
604.661.1021
lmorrison@ekb.com

EKB Acts for Management Team in Buy Out of Doubletree Forest Products

EKB’s Business Law team led by Fraser Hartley and assisted by Riley Lalonde and Larissa Dziubenko acted for a management group in the recent acquisition of Doubletree Forest Products.

Doubletree has been at the heart of the Canadian softwood lumber industry since its founding forty years ago and it has been working with mills and lumber buyers in the Pacific Northwest ever since. The purchasers look forward to continuing the success at Doubletree started by the company’s founders, the Reynolds family.

EKB worked closely with the purchasers throughout the acquisition by providing strategic advice, performing legal due diligence and preparing and negotiating the acquisition documents, shareholders agreement and financing documents for the acquisition.

 

Frazer Hartley a business lawyer at the Vancouver law firm EKB
Contact:
Fraser Hartley
Partner
604.661.1098
fhartley@ekb.com

EKB Succeeds in Landlord’s Claim for Unpaid Triple Net Expenses in Commercial Lease Dispute

EKB’s Angela Folino and Laura Morrison successfully acted for the plaintiffs, Edward Derek Bulley and Ed Bulley Investments Ltd., in a summary trial against Weatherford Canada Partnership and others in a matter involving a triple net commercial lease. Mr. Bulley was the landlord and Weatherford was the tenant. The lease required Weatherford to pay a set monthly amount as base rent plus Weatherford’s proportionate share of expenses, utilities and property taxes (the “Additional Rent”) for the use of certain commercial property in Fort Nelson, B.C.

Through inadvertence, the landlord, Bulley, did not send invoices for Additional Rent for the first three years of the lease’s 7 year term. As soon as the mistake was discovered, Bulley invoiced Weatherford for the outstanding amounts owing for those years. Weatherford refused to pay any of the amounts owing, despite taking no issue with the amounts of any of the invoices. Weatherford took the position that Bulley’s delay in sending the invoices precluded Bulley from recovering the outstanding amount for a number of reasons:

  1. First, Weatherford argued that it was a precondition of payment of the Additional Rent that Bulley deliver budget statements, tax assessments and reconciliation statements to Weatherford annually, which Bulley had not done.
  2. Second, Weatherford argued that Bulley’s delay in sending the budget statements and tax assessments violated the “time is of the essence” clause in the lease. Weatherford argued that because of the alleged breaches, its obligation to pay Additional Rent was void.
  3. Third, Weatherford argued that Bulley’s failure to deliver invoices for the Additional Rent gave rise to an estoppel which disentitled Bulley to the Additional Rent.
  4. Finally, Weatherford argued that Bulley was precluded from recovery because the limitation period had expired.

In her decision released on October 25, 2016, Madam Justice Maisonville found that Bulley was entitled to recover the amounts owing as Additional Rent and, in doing so, rejected each of Weatherford’s arguments.

Maisonville J. held that there was nothing in the lease that made the delivery of budget statements, tax assessments and reconciliation statements a precondition to the payment of Additional Rent.

Further, she agreed with Bulley that the “time is of the essence” clause did not alter Weatherford’s obligation to pay Additional Rent. Rather, the effect of a “time is of the essence” clause is that, when an express time stipulation in a contract has been breached, the party not in breach can elect whether to keep the contract in force or terminate it. Weatherford continued to remain in the premises while disputing that it owed the Additional Rent. Madam Justice Maisonville found that, in doing so, Weatherford elected to affirm the lease in the face of Bulley’s alleged violation of the “time is of the essence” clause.

In addition, Maisonville J. found that in order to succeed in its promissory estoppel argument, Weatherford needed to prove that Bulley made a promise or assurance that he would not seek to collect the Additional Rent. However, she found that the mistake of not delivering the invoices for the first three years of the lease was not a promise or assurance that Bulley would not insist on the Additional Rent because it was unintentional. In Maisonville J.’s words, “the mistake cannot be relied upon to ground promissory estoppel”.

Finally, Maisonville J. found that Bulley had brought the claim in time. The lease required Weatherford to pay amounts due under the lease within 30 days after demand. After making the demand for the first three years of Additional Rent on June 30, 2014, Bulley had a two year period (which commenced 30 days after June 30, 2014) within which to commence its lawsuit. In filing the lawsuit on December 29, 2015, Bulley was well within the limitation period.

You can read the decision here: Bulley v. Weatherford Canada Partnership, 2016 BCSC 1955

 

Laura Morrison a business litigtaion lawyer at the Vancouver law firm EKBContact:
Laura Morrison
Associate
604.661.1021
lmorrison@ekb.com

EKB Represents Management in MBO of Phoenix Glass

EKB represented Jim Lebedovich and Sunny Minhas in their acquisition of Phoenix Glass. Mr. Lebedovich remains the President of Phoenix and Mr. Minhas remains the CFO of Phoenix.

Mr. Lebedovich and Mr. Minhas acquired all of the issued shares of Phoenix Glass from its former owner Atis Group of Montreal. Phoenix Glass has been manufacturing and installing commercial windows, canopies and curtain walls throughout the Lower Mainland and Vancouver Island for over 24 years and has successfully completed over 2,000 projects.

EKB assisted Mr. Lebedovich and Mr. Minhas with strategic advice regarding the acquisition, as well as doing the legal due diligence and preparation and negotiation of the acquisition documents, the shareholders agreements, and the equity and debt financing for the acquisition.

Contact:
Fraser Hartley
Associate
604.661.1098
fhartley@ekb.com

EKB Represents Canada Metal (Pacific) in Acquisition of Dock Edge+

EKB represented its longtime client, Canada Metal (Pacific) Ltd., in the acquisition of Dock Edge+ and related companies. Dock Edge+ is a leading manufacturer and supplier of commercial and consumer marine products in North America.

The acquisition will provide Canada Metal with a dock equipment and marine accessory manufacturer, an 80,000sq. ft. manufacturing plant in Woodbridge, Ontario and a corporate presence and a sales force in eastern Canada.

Canada Metal will be able to distribute Dock Edge+ products through its worldwide distribution network utilizing the acquired facility in Ontario and Canada Metal’s existing facilities in British Columbia, Virginia, USA, China, Italy and Australia.

EKB assisted Canada Metal with strategic advice regarding the acquisition, as well as doing the legal due diligence and preparation and negotiation of the acquisition documents, the shareholders agreements, and the equity and debt financing for the acquisition.

Contact:
Bill Hartley
Associate Counsel
604.661.1007
whartley@ekb.com

EKB Represents Minority Shareholder in the Disposition of 49% Equity Stake of Ritchie Bros. Financial Services

In 2011 we assisted our client in the negotiation of an agreement with Ritchie Bros. to create Ritchie Bros. Financial Services, a company catering to the financing needs of equipment buyers purchasing through Ritchie Bros. Auctions.

This year we assisted our client in the disposition of their 49% interest in Ritchie Bros. Financial Services for $53.9 million.  The transaction provides for additional compensation contingent on meeting certain performance targets over the next three years and for our client’s ongoing involvement in the business over the next three years.

Contact:
William Hartley
Associate Counsel
604.661.1007
whartley@ekb.com

EKB Succeeds in Defending Non-Profit Landlord in Subsidized Housing Case

EKB lawyers Angela Folino and Laura Morrison succeeded in defending a petition for judicial review of a decision by a Residential Tenancy Branch arbitrator in the subsidized housing context.

In Hu v. Red Door Housing Society, 2016 BCSC 1238, the petitioner sought to have the court overturn a decision of the arbitrator upholding a Notice to End Tenancy issued by the landlord Red Door, a non-profit society that provides affordable housing to low and moderate-income families and seniors.

Following an annual income and asset review, the landlord determined that the tenant’s income and assets revealed that the tenant no longer qualified for a rental subsidy. The landlord increased the rent to market rent, but the tenant continued to pay rent at the reduced amount as though she were still receiving the subsidy. Rent arrears accumulated, and the landlord issued a 10 Day Notice to End Tenancy for Unpaid Rent as a result of the arrears. The tenant disputed the notice before the Residential Tenancy Branch.

The issue before the arbitrator at the Residential Tenancy Branch was whether certain amounts which Red Door had counted as “income” were properly considered to be income for the purposes of calculating eligibility for the rent subsidy. The tenant maintained that these amounts were loan proceeds from a friend. Red Door’s policy, in accordance with its agreement with BC Housing Management Commission, was that income from all sources of all adult members of the household was counted as income. Only loans from financial institutions were excluded from the income calculation. The arbitrator found that she did not have the jurisdiction to look behind Red Door’s policy for calculating rent subsidies because housing societies such as Red Door are exempt from the rent increase provisions of the Residential Tenancy Act that apply to residential landlords. Therefore, the arbitrator upheld the 10 Day Notice. The tenant brought a petition for judicial review.

The Court found that the arbitrator’s decision was not patently unreasonable.  The court agreed with the arbitrator and Red Door that the Residential Tenancy Branch has no jurisdiction over matters relating to rent increases for a subsidized housing unit because of the Residential Tenancy Act exemption. Thus, the court held that the arbitrator was correct in declining to examine Red Door’s internal policy to only accept loans from financial institutions as “loans”. In other words, it was open to Red Door to consider loans from friends as being income for the purposes of performing rent calculations. The tenant’s petition was dismissed and Red Door’s 10 Day Notice was upheld.

Learn more about administrative decisions and judicial review in a recent article by EKB.

 

Laura Morrison a business litigtaion lawyer at the Vancouver law firm EKBContact:
Laura Morrison
Associate
604.661.1021
lmorrison@ekb.com

EKB scores quick win for Mike Babcock in hotel dispute

EKB obtains summary trial dismissal in the face of clear conflicts on the affidavit evidence

EKB lawyers David Turner and Laura Morrison recently obtained a summary trial win despite clear and undeniable conflicts on the evidence on the key issue. In Colter Developments Ltd. v. Squamish JV Ltd., 2016 BCSC 354, our client, Mike Babcock, was sued personally in a claim by a number of construction companies with respect to the failed construction of a Holiday Inn located in Squamish, British Columbia.

The claim alleged that at a Detroit Red Wings practice in 2009, principals of the plaintiff companies met with Mr. Babcock to discuss the difficulties they were experiencing with the construction. The plaintiffs claimed essentially that at the hockey practice Mr. Babcock promised personally that they would be paid. Mr. Babcock denied making any such promise to the plaintiffs.

The plaintiffs argued the case was not suitable for summary trial because of the conflicting affidavits. After reviewing the applicable law, the court disagreed, finding that “there are conflicting affidavits but other evidence makes it possible to find the facts necessary for judgment.”

The Court found it relevant that Mr. Babcock was only an investor in the project, and not a manager or businessman:

[11] Michael Babcock is an investor in the hotel project …Until late 2009, he had no active involvement in VW Hotels. He is a professional hockey coach. At the time of these events he coached the Detroit Red Wings of the National Hockey League as well as Canada’s national hockey team for the 2010 Winter Olympics.

The court canvassed the law of negligent misrepresentation and certainty of terms in contract and also referenced the many discrepancies between the plaintiffs’ version of events and the documentary evidence. The court found that the allegations of negligent misrepresentation could not succeed on the law. The court found that many of the allegations in the law of contract did not have the necessary certainty of terms, and those few allegations that did were “inherently unlikely” on the facts.

The court dismissed the case against Mr. Babcock with costs.

The case is noteworthy because it signals that courts are willing to dismiss actions at summary trial, even in cases where the traditional wisdom is that a full trial would be required to assess credibility. It was an aggressive tactic, but the summary trial success resulted in significant savings in fees, time and inconvenience for our busy client. The full decision can be found here. A Globe and Mail article on the decision can be found here.

Contact:
David Turner
Partner
604.661.1018
dturner@ekb.com

EKB acts for ConeTec Investigations in the successful acquisition of Mud Bay Drilling

EKB’s Business Law team, led by Bill Hartley and assisted by Riley Lalonde and Fraser Hartley, successfully completed an acquisition by ConeTec Investigations Ltd. in a recent transaction which closed on September 30, 2015.

ConeTec successfully acquired Mud Bay Drilling Co. Ltd., a geotechnical drilling and site investigation company operating in Western Canada.

ConeTec and Mud Bay Drilling have a history of working together on projects throughout British Columbia and the acquisition bolsters ConeTec’s service offering in Western Canada.

Contact:
Bill Hartley
Associate Counsel
604.661.1007
whartley@ekb.com

Combination of Equipment Finance Businesses

Bill Hartley led a team of EKB lawyers that acted for a client in the combination of their prime equipment finance business with the prime equipment finance business of a BC credit union. The negotiations were protracted and complex. The transaction involved an agreement whereby our client would provide long term management of the combined business and a retained interest for our client in the combined entity. The transaction provided that the credit union would have an option after a number of years to acquire the interest of our client. The transaction also provided that non-prime equipment finance applications generated by the combined entity would be referred to our client for an extended period of time.

Contact:
Bill Hartley
Associate Counsel
604.661.1007
whartley@ekb.com

Case clarifies loss of use damages

EKB lawyer Laura Morrison successfully represented the appellant, a car dealership, in the appeal of a Provincial Court of British Columbia decision regarding a vehicle leased by the appellant that suffered an engine failure. On appeal, the Supreme Court found that the trial judge erred by awarding the lease payments that had been made by the respondent to the appellant as damages for the respondent’s loss of use of the vehicle.

This decision affirms the common law proposition that to succeed in a claim for damages for loss of use of property, the claimant must present evidence of what damages it actually suffered as a result of being deprived of the use of the property. This decision also clarifies that lease payments are not the proper measure of damages for loss of use of leased property.

Read the full decision.

Contact:
Laura Morrison
Associate
604.661.1021
lmorrison@ekb.com

EKB thinks outside the box in dispute resolution

EKB recently settled a complex multi-party commercial litigation dispute. What was unique about this is that the case was at a very early stage of litigation. No pre-trial examinations for discovery had been conducted not all document discovery had been concluded and no expert reports had been obtained.

In pushing a trend in dispute resolution in other jurisdictions, in the very early stages of the litigation we analyzed the issues and determined that there were sufficient known facts to conduct a risk/benefit analysis for our client to properly proceed with mediation to achieve a reasonable settlement. We were able to do so while saving the client thousands of dollars on pre-trial legal processes and expert costs.

This case is an example of how to achieve a very favourable result, while saving the client considerable expense by not following the typical litigation approach.

Contact:
Rodney Urquhart
Co-Managing Partner
604.661.1041
rurquhart@ekb.com

Supreme Court of BC ruling confirms that EKB sets the standard for court application material

In successfully defending a summary trial application on behalf of our client, the plaintiff, the Supreme Court of British Columbia clarified the law regarding the proper content of Notices of Application and Application Response. Previously the courts were unclear as to the nature and content of these application materials such that litigants often had sparse and deficient material making it difficult for the other parties and the courts to understand their position until they spoke in court. This would often lead to inefficiencies in court proceedings and potential unfairness to the opposing parties

In granting judgment in favour of EKB’s client the court determined that the Notice of Application filed by the applicant defendant was deficient and that the material filed by EKB represented the proper standard. In so doing the court stated:

“In contrast to the bare-bones notice of application filed on behalf of [the applicant defendant], the application response [filed for our plaintiff client] was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable. It represents the standard expected by the court.”

This decision sets the standard for application material to be used by parties in all Supreme Court applications.

Contact:
Rodney Urquhart
Co-Managing Partner
604.661.1041
rurquhart@ekb.com

Supreme Court of British Columbia agrees with EKB that injunctions can be available against the Provincial Crown in pharmacy case

In representing a pharmacy on judicial review in relation to an audit conducted by PharmaCare, the Supreme Court of British Columbia agreed with EKB’s and determined that a stay of proceedings (an injunction) was available against the Provincial Crown despite the Crown Proceeding Act prohibiting the granting of injunctive relief against the Crown. The court concluded that proceedings brought against the Provincial Crown under the Judicial Review Procedure Act were not captured by the prohibition in the Crown Proceeding Act as judicial review proceedings do not involve a claim against the Crown, but a review of the Crown’s decision.

This is an important decision that has application to any number of administrative law and regulatory proceedings involving the Provincial Crown.

Northburn Prescriptions Ltd. v. British Columbia, 2014 BCSC 2124

Contact:
Rodney Urquhart
Co-Managing Partner
604.661.1041
rurquhart@ekb.com

EKB wins an uphill battle on hotel construction procedural point

On March 17, 2015, EKB partner David Turner scored a noteworthy victory in opposing a plaintiff’s application to amend their pleadings. Typically, amendment applications are almost always granted unless they are made on the eve of trial or the respondent can show prejudice from the amendment that cannot be compensated in costs. EKB had no such arguments to work with here: the trial had not been set down yet, and our prejudice was largely compensable.

Our successful opposition to the application stemmed from our aggressive defense of the action. Our view was that the plaintiffs’ case had serious problems and we brought a summary trial application for dismissal of the claim against our client, Mr. Michael Babcock, and served it on the plaintiffs. Three days later, rather than answer our summary trial application, the plaintiffs filed an application to further amend to add a claim of unjust enrichment against Mr. Babcock. We opposed the motion to add this new claim on a number of legal grounds, but focused primarily on the tactics of the plaintiffs. The court found that “[r]ather than answering Mr. Babcock’s application for dismissal of their claims against him on the current pleadings, the plaintiffs, through their application to amend their pleadings by adding the claim of unjust enrichment, and the amendments to that application, have endeavoured, as counsel for Mr. Babcock put it, “to move the goal posts on Mr. Babcock.”

The court rejected the plaintiffs’ application to add the claim of unjust enrichment against Mr. Babcock and awarded us costs in any event of the cause.

Pearlman J.’s decision is of interest because it shows the court is following its mandate of providing just, speedy, inexpensive determinations of proceedings. The court saw Mr. Babcock’s aggressive defense to this case and decided that it should not be frustrated by the plaintiffs’ attempts to complicate the case rather than answer the dismissal application. The decision is encouraging to defendants who are looking for speedy dismissals of meritless claims against them.

The full case can be found here.

Contact:
David Turner
Partner
604.661.1018
dturner@ekb.com