Walsh LLP Is Pleased To Announce That Stephen Page And Laura Brown Have Joined Our Firm

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Stephen was called to the Alberta Bar in May of 2015 after completing his articles at a boutique family law firm in Calgary. Stephen has appeared on behalf of his clients in both the Court of Queen’s Bench and the Provincial Court of Alberta. Stephen will be a member of the Family Law practice group at Walsh LLP.

After completing her Commerce Degree in Halifax and working for a few years in that City, Laura attended Law School at Dalhousie University and Articled in Ottawa prior to moving to Calgary. Laura was called to the Alberta Bar in August of 2014 and worked at a boutique family law firm in Calgary prior to joining Walsh LLP. Laura will be a member of the Family Law practice group at Walsh LLP.

Walsh LLP Announces Ray G. Hunt’s Retirement

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It is with mixed emotions that Walsh LLP announces Ray Hunt’s retirement from the practice of law. Walsh LLP and Ray have immensely enjoyed many years of friendship and, with that, Ray’s numerous contributions to firm life, from his obvious care for his colleagues and the profession as a whole, to his regaling stories of firm lore.

Since he joined the Firm in 1978 as an articling student, Ray has been a valued and respected member of Walsh LLP, throughout its history of assisting Albertans with their legal questions and decisions. In his years with the firm, Ray has served as a Special Prosecutor for Justice Canada, has developed a practice in commercial law and matrimonial law, and has appeared in those causes in all levels of court in Alberta.

Ray is known by his colleagues both at Walsh LLP and outside the firm, as a man of integrity, honour, and dignity. In the practice of law, he strove unfailingly to achieve a level of respect for the parties and the process that earned him the admiration of lawyers and students at Walsh LLP, whom Ray enjoyed mentoring and with whom he shared the rich history and banter of Walsh LLP.

Walsh LLP thanks Ray Hunt for his many years of dedication, and wishes him the best of years in his retirement. To mark this special occasion, Walsh LLP is pledging a donation of $2,500 in Ray’s name, to the Multiple Sclerosis Society of Canada (Calgary & Area Chapter), to help the community in which Ray practiced law and dedicated his many years of care and commitment.

Tenancy At Will Agreements and New Condominium Purchases

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With the exception of cash deals, tenancy at will agreements are signed in virtually all residential real estate transactions in Alberta. While closing dates typically precede or mirror possession dates, there will occasionally be situations where a delay pushes the closing date beyond the possession date. Tenancy at will agreements address such situations by allowing the purchaser to take possession of the property prior to closing on the condition that the purchaser pay a rental fee to the seller. In the majority of real estate transactions, the tenancy at will agreement is a precautionary measure that is never used. However, one area of real estate where tenancy at will agreements are acted upon with regularity are new condominium purchases.

New condominium purchases offer a unique real estate problem because of the delay between the completion of the condominium and its registration with the Land Titles office. Section 14(3) of the Condominium Property Act states that without registration, ownership of condominium units cannot be transferred from the builder to the purchaser. Before individual units can be registered, the condominiums themselves must be registered. To be registered, the condominiums must receive a number of permits from the municipality. To receive many of these permits, the condominium build must be near completion. Unfortunately, the volume of the administrative work required means that many condominiums are fully built and ready to be lived in prior to their registration with Land Titles. If builders waited for registration before allowing possession, unit owners would be subject to prolonged and unpredictable delays. Tenancy at will agreements are the solution to this problem.

When a delay is expected between possession and closing, the builder will inform the purchaser’s solicitor of the estimated length of the delay and instruct the solicitor to collect tenancy at will rents for a period in excess of the estimate. The builder will then hold the rent payments in trust and use only the funds necessary for the duration of the tenancy at will. Any unused funds will be returned to the purchaser upon the funding of the mortgage.

It is important to note that on new condominium purchases a mortgage cannot fund until the purchaser is registered on title, and therefore the purchaser will not be paying both the mortgage and tenancy at will at the same time. If the funding of the mortgage occurs after the specified first payment, the payments will adjust for the delay on a pro rata basis. Further, the purchaser should not expect to pay any more than they otherwise would be paying towards the interest component of their mortgage because the amount of the rent is usually calculated at mortgage rate mortgage amount. In other words, the purchaser will not be out be out additional funds via the tenancy at will.

Ultimately, tenancy at will agreements in new condominium builds operate to provide purchasers with the soonest possible possession of their units. Without such agreements, purchasers would have to wait weeks while permits were granted, documents were processed and titles were registered. The onerous costs of these delays make tenancy at will agreements an invaluable asset in new condominium purchases.

If you are interested in more information about condominium builds, or have other real estate law inquiries, please do not hesitate to contact the Walsh LLP Real Estate Group.

Travelling With Your Children After Separation

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As the summer nears many parents are beginning to plan summer vacations with their school aged children. If you are a parent who is separated from your child’s other parent and you are planning to travel with your child outside of Canada some additional planning (and documentation) is required before you leave on vacation.

Foreign Affairs Canada strongly recommends that children travelling abroad carry a notarized Travel Consent Letter from every person who has the legal right to make major decisions on a minor child’s behalf if one or more of those persons is not accompanying the child on the trip. For example, if a minor child is travelling abroad by themselves, with only one parent, or with a group or club under another adult’s supervision a notarized Travel Consent Letter is highly recommended.

Without a notarized Travel Consent Letter your child may be prevented by customs and border officials from leaving Canada or from entering a foreign country.

If you are a parent who will be travelling alone with your minor child outside of Canada it is important you plan ahead. Sample Travel Consent Letters are available from Foreign Affairs Canada and can be easily completed by a child’s legal guardians and parents. It is also important that your child’s Travel Consent Letter be notarized by a lawyer or notary public.

Should you require assistance the Walsh LLP Family Law Group is able to assist parents with the notarization of Travel Consent Letters and has extensive experience advising individuals on a wide range of family law matters that arise upon separation and divorce.

Planning For Marriage: Do I Need a Pre-Nuptial Agreement?

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As the date of your wedding nears there are likely many things on your mind – venues, dresses, the cake, the band – but it is also important during this busy time to consider whether you and your partner need to discuss and make plans concerning your individual or joint assets and debts before you marry.

Pre-Nuptial Agreements are becoming increasingly common as parties recognize that a Pre-Nuptial Agreement can be a flexible planning document that can achieve many purposes and provide certainty and security to both parties. A Pre-Nuptial Agreement can do many thing such as:

• Establish each party’s property, assets and debts before the marriage
• Outline how the parties intend to share their assets and property during the marriage
• Provide for dependants and children of previous relationships
• Protect corporate and company assets
• Set out how property division and support matters will be addressed in the event of separation or divorce

As a Pre-Nuptial Agreement sets out each person’s entitlement to and responsibility for assets accumulated and debts incurred during the marriage it is important that each person receive legal advice from a lawyer before entering into a Pre-Nuptial Agreement. This ensures that each person fully understands their legal rights and responsibilities and the effect of the Pre-Nuptial Agreement they are entering into, as well as ensuring that the Agreement is legally enforceable.

If you and your partner are considering entering into a Pre-Nuptial Agreement we would encourage you to speak with a member of Walsh LLP’s Family Law Group whom have extensive experience advising individuals on a wide range of topics and important considerations that arise prior to and upon marriage.

Mandatory Retirement and Employment: Must I Retire At 65?

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There is no law in Canada that says you must retire at the age of 65. Why? Because courts and Human Rights Tribunals have adopted the position that to permit employers to impose mandatory retirement, which is solely based on age, is discrimination.

Pursuant to the Alberta Human Rights Act, it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation. These are known as the enumerated grounds of discrimination. Age explicitly being one of them. As such, the Alberta Human Rights Act further states that no employer shall refuse to employ or refuse to continue to employee any person based on age or any other enumerated ground. Mandatory retirement at the age of 65 is considered to be a refusal to employ an employee based on age. Age discrimination may also apply to other aspects of ones conditions of employment such as, but not limited to, salary, duties, training or opportunity for promotions.

However, as is the case with many legal issues, there is an exception to this rule. The Alberta Human Rights Act states that a breach of one’s human rights shall be deemed not to have occurred if the breach was reasonable and justifiable in the circumstances. Courts have found that mandatory retirement is justifiable if mandatory retirement is based on a bona fide occupational requirement. The bona fide occupational requirement test is a threefold test, which is generally justified in positions that are safety sensitive, such as firefighters, police officers and bus drivers.

Whether or not a mandatory retirement policy is discriminatory or justified (from either the perspective of an employee or employer), must be determined on a case by case basis taking into account the merits and unique circumstances of each independent matter.

For assistance or additional information on mandatory retirement and its applicability to your specific circumstances, please contact Joshua D. Sutherland and Walsh LLP directly at 403-267-8400, via our toll free number 800-304-3574, or by e-mail (ac.walhslaw@dnalrehtusj).

Former Executive Sues AHS for Breach of Employment Contract

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Statement of claim alleges AHS and health minister conspired against executive

A former health executive is suing the Minister of Health Fred Horne and Alberta Health Services for breach of employment contract, defamation and loss of income, according to the Edmonton Journal. The executive is seeking damages of more than $5.5 million, claiming the health minister and AHS conspired to make the executive a scapegoat for other government expense scandals that were occurring at the time.

Executive accused of misusing expense account

The executive, who was hired as the chief financial officer of the AHS in May 2012 saw his employment terminated on August 1 of that same year. The termination came about just as information was coming to light about his time as an executive with the Capital Health Authority in 2005-08.

That information showed that the executive claimed approximately $350,000 in expenses while with the Capital Health Authority. The expenses, which included expensive meals, car upgrades, and car washes, created a controversy in the media at the time.

The executive claims that the AHS initially told him that they would continue to support him in his role as chief financial officer and that the two parties were working on a public relations plan to combat the negative publicity. However, according to the executive, the AHS was conspiring with Horne to fire him in order to make him a scapegoat for other government scandals.

Lawsuit claims irreparable harm

The executive claims that ever since the termination of his contract his reputation has suffered irreparable harm and that the prospects of him being re-employed at a senior executive level in Canada have been extremely damaged. The executive is also seeking to overturn AHS’s previous decision to withhold his severance pay.

The executive has always claimed that the expense claims were legitimate and followed the rules set down at the time by Capital Health. Furthermore, a legal opinion previously submitted to Horne said that the AHS would be unlikely to succeed if it sued the executive to get back the expenses that were claimed.

Horne and the AHS refused to comment on the lawsuit and a statement of defence has yet to be submitted.

Dealing with employment disputes

The above case shows just how important it is for businesses and corporations to deal with employment disputes quickly and effectively. Any company accused of breach of employment contract, or a company that is dealing with other legal matters surrounding business and corporate law, needs to make sure they have qualified legal counsel on hand at all times. A business and corporate law firm can provide the expertise a company needs when dealing with complicated legal issues and will work closely with the company to make sure that any outstanding concerns are resolved satisfactorily.

Human Rights Case Involving Discriminatory Employment Conduct Nears End

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The Court of Appeal of Alberta recently issued a judgment in a human rights case, Walsh v. Mobil Oil Canada, involving gender-based discrimination in employment. The legal dispute, which has resulted in several judgments of courts and a Tribunal over the past 22 years, is finally nearing its conclusion.

In its judgment, the court expressed full agreement with the lower court’s findings of discriminatory and retaliatory conduct by a large oil company against a female employee. In addition to ruling on the employment-related issues, the judges also indicated concern about the delays in the processing of the complaint by the Alberta Human Rights Commission.

Human rights complaint pits female employee against oil company

The female employee’s original human rights complaint in 1991 involved her allegation that the company was treating her differently because of her gender. The Court of Appeal’s case judgment indicates that she received several promotions and eventually achieved her objective of becoming a “land representative,” but states that she was treated differently than the men occupying the same position. The judges assert that “she was underpaid, under recognized and overly criticized as a result of gender bias.”

However, four years after receiving the employee’s discrimination complaint, the Alberta Human Rights Commission (known as the “Tribunal”) dismissed it. After the oil company terminated the woman’s employment, she filed another human rights complaint, alleging that the company had retaliated against her because of her original complaint. Ten years later, the Tribunal dismissed that complaint also.

Ultimately both the Alberta Court of Queen’s Bench and the Court of Appeal “vindicated” the female employee by overturning the Tribunal’s decisions. The issues before the Court of Appeal in the most recent judgment concerned the size of the former female employee’s monetary awards.

Parties in the case and legal observers frustrated by the tardiness of the legal process

A blog authored by the Faculty of Law at the University of Calgary expresses frustration at the slowness of the legal process in this matter. The author also comments negatively on the performance of the Alberta Human Rights Commission, calling the case “an extreme example of some of the criticisms of Alberta’s human rights system.”

Despite the recently concluded appeal to the Court of Appeal, the judges indicate that both parties in the case want the legal process to end. The only issues remaining involve legal costs.

This case illustrates – in an extreme fashion – the special difficulties presented by human rights complaints involving corporate conduct. Any company that is notified of such a complaint should engage counsel with extensive experience in the relevant area of law. This expertise can prove invaluable in the handling of cases stemming from human rights law.

What Effect Does Marriage Have on a Will and Inheritance?

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Alberta law generally affords surviving spouses extra rights as beneficiaries

When a spouse passes away, the pain endured by a surviving spouse or common-law partner can be immense. The last thing on most surviving spouses’ minds is inheritance, but it is nonetheless important for spouses to understand what rights they have as beneficiaries. Alberta’s Wills and Succession Act (WSA) came into force three years ago and significantly strengthens the rights of surviving spouses as beneficiaries.

The WSA grants a surviving spouse who is not a registered owner of the matrimonial home possession of the home for a period of 90 days. This period can be shortened or lengthened upon application to the Court.

The WSA also contains provisions that allow a surviving spouse (in addition to other family members) to make an application for further maintenance and support if adequate provision is not made in the Will.

Divorce and ex-spouses

Changes from the WSA include the effects of divorce or marriage on a preexisting will. An important change under the WSA is that getting married does not revoke the pre-existing will.

Conversely, under the WSA, when certain conditions are met, divorce or separation from a common-law spouse revokes gifts made by the deceased to an ex-spouse if the individual dies without updating their will. It should be noted, however, that the WSA does not remove ex-spouses as beneficiaries from some insurance policies, financial accounts or investments.

These changes underscore the importance of updating your will when significant changes occur in your life, including marriage or divorce.

Dying without a will

An important concern for surviving spouses is when a husband or wife passes away without having a valid will (otherwise called “intestacy”).

Under the WSA, the surviving spouse receives the entire estate if the deceased leaves no descendants or if all surviving descendants are the children of both the deceased and the surviving spouse. If the deceased has descendants who are children from a previous relationship, then the surviving spouse receives either $150,000 or 50% of the estate, whichever amount is greater. The remainder of the estate is divided among the deceased’s descendants (ie: children, grandchildren, and great-grandchildren).

Help with wills and estate issues

Dealing with complicated and sensitive issues raised by an inheritance can be difficult for many people, especially for those who are grieving for the loss of a loved one. As experienced wills and estates lawyers, we can help surviving spouses and other potential beneficiaries understand their rights and thus provide guidance and expert advice during this otherwise difficult time.

Planning Ahead For Your Winter Vacation: Wills & Estates Edition

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The air is chilly, the snow is falling, and Calgarians are planning their winter getaways.

Impending trips and plane rides are natural catalysts that get clients thinking about Estate Planning.

What is Estate Planning? Among other things, it includes preparing documents that set out your wishes in matters relating to health care and financial decisions, in the event you are unable to make decisions on your own, as well as your wishes regarding the distribution of your property when you pass away.

The Personal Directive (a document relating to your health care decisions) and the Enduring Power of Attorney (a document relating to your financial decisions) take effect while you are still alive but are unable to make your own decisions. If you are going to live abroad for a period of time and want to allow someone else to take care of your finances while you are away, you can also prepare an Immediate Power of Attorney, appointing your spouse, parents or siblings to pay your bills for the specific situations/periods of time set out in that document.

A Will sets out your final wishes relating to the distribution of your property, which is especially important if you have dependants (such as a spouse or minor children), want to make specific bequests, or own your own business and require succession planning. A Will ensures that your final wishes are spelled out and administered accordingly.

While Estate Planning documents are a good ‘to do’ on your vacation planning checklist, don’t wait until you’re counting the days to your departure – on top of all other vacation arrangements you’ll be making, you’ll be in a rush to get the documents in order and may miss some important ‘big picture’ planning. You’ll also be looking at increased legal costs for expediting your documents. Rather, set some time aside and go through the ‘what if’ questions with your spouse and other family members, without the pressure of a departure date looming.

Our Wills & Estates Questionnaires can help to serve as a springboard for discussions and our Wills & Estates Group can assist you with understanding the new Wills & Succession Act and the preparation of these documents. Contact our Wills & Estates Group for further information or to book an appointment to discuss your Estate Planning needs.