The Common Law Right to Protect Waterfront Land from Erosion

Del Elgersma summarizes the recent BC Supreme Court decision in the case of Fonseca vs Gabriola Island Local Trust Committee, which affirms the “ancient common law right” of waterfront owners to protect their land from erosion.

BACKGROUND

  • The Fonseca’s are an elderly Burnaby couple (in their ‘80’s), married over 60 years, who have owned waterfront property on Mudge Island, near Gabriola, since 1991.
  • In 2003 they received a provincial license and built a concrete boat ramp.
  • Over the next few years they built various structures on their property along the shoreline, including a deck and two seawalls, without the approval of the local government, the Gabriola Island Local Trust Committee.
  • The Gabriola Island Local Trust Committee has the status and powers of a local government under the Local Government Act.
  • A bylaw prohibited any structure within 30 metres of the sea. There was an exception where the frontage on the sea was adequately protected from erosion by natural bedrock – in that case, the setback was reduced to 7.5 metres, but that did not help the Fonseca’s: they didn’t have bedrock, and their structures were right along the shoreline.
  • In 2012 they had a dispute with a neighbour, who complained about the structures, which resulted in enforcement action by the local government and ultimately this case.

DECISION

  • The judge ordered the removal of a deck and certain fences which were built within the setback area and which were not for the purpose of preventing erosion.
  • However, the judge agreed that there is a common law riparian right for a waterfront landowner to protect their property from erosion by the sea.

(Technically, riparian rights are rights related to streams and rivers, while littoral rights are rights related to the sea or lake-shore. However, it is common for both types of rights to be referred to as riparian rights.)

The judge stated, “this riparian right is grounded in Roman and, subsequently, English law that allowed landowners to protect their property”. He referred to two old English cases, coincidentally both from 1828, which outlined this right, and included this quote from one of those cases:

“It seems to me that every landowner exposed to the inroads of the sea has a right to protect himself, and is justified in making and erecting such works as are necessary for that purpose”

Justice Masuhara then stated “I find that there exists a common law right to protect your property from erosion caused by the “inroads of the sea”.

The remaining issue was whether this common law right had been extinguished. Under rules of statutory interpretation, common law rights continue unless modified, altered or abrogated by statute. The abrogation must be express or necessarily implied; the judge found neither. While the Local Government Act gives local governments wide powers to regulate land use and structures, there is no specific abrogation of the right to protect land from erosion. The judge therefore concluded that the setback bylaw infringed the Fonseca’s common law rights and was inapplicable to the seawalls.

Unfortunately, within two weeks of the decision the local trust committee announced it would appeal the decision. In a press release they stated:

“We are disappointed with the Court’s narrow interpretation of the law and decision that B.C. local governments cannot enact zoning regulations to prohibit seawalls”.

The trust committee’s argument that the common law has been abrogated seems destined to fail. The BC Government itself has acknowledged that the right still exists!

The Ministry of Environment published a paper on riparian rights in 1990 (updated in 2008). The paper, titled “Riparian Rights and Public Foreshore Use in the Administration of Aquatic Crown Land”, has much to say about the common law right recognized in the Fonseca case.

Here are some excerpts from the paper:

“British Columbia recognizes the right of upland property owners to protect their land from erosion or flooding by building embankments, dykes, or other protective improvements. This right may be exercised only on the upland property. Owners have the right to install protective structures on their own land; but they require the consent of the Crown to extend any structures below the natural boundary.

“As defined in section 1 of the Land Act, natural boundary means the visible high water mark of any body of water…

“Accretion and Erosion
Land abutting a body of water is subject to accretion and erosion.
A waterfront property owner owns land that has slowly and naturally accreted once that land takes on upland characteristics.
This situation can also operate in reverse. When the upland is slowly and naturally eroded, the land lost becomes part of the foreshore or bed of the adjacent water body. The Crown then owns the land below the natural boundary.

“Summary
Of the historical or traditional riparian rights and related property rights mentioned here, three have been abrogated by statute;

  • The principle of ad medium filum aquae (the concept that your boundary extends to the middle of any adjacent stream or river).
  • The right to water flow of undiminished quality and quantity.
  • The right to construct facilities on the foreshore to provide for access to deep water.

“Three riparian rights that do apply in British Columbia are:

  • Protection from erosion by an owner.
  • Accretion and Erosion – ownership of naturally accreted material which has taken on upland characteristics.
  • Ingress and Egress – access to and from navigable waters.

“The right to protect waterfront property from erosion is relatively well established. The limits of that right are defined by the boundaries of the upland property being the location of the present natural boundary as it exists from moment to moment. To erect protective works beyond the present natural boundary needs the consent of the Crown.

Given these statements, it is hard to imagine that the Court of Appeal could decide that the common law right to protect your land from erosion has been abrogated.

This right is very important in BC, because land lost to erosion cannot be reclaimed, it becomes Crown foreshore land.

TAKEAWAYS

  • In the Fonseca case, the judge found that there had been actual erosion – if there was no evidence of erosion (or at least no real threat of it), the result may have been different.
  • If the local trust committee wins on appeal, the decision applies retroactively, so any structures built while the appeal is pending would be non-compliant.
  • The judge confirmed that local governments can regulate how seawalls or other anti-erosion measures are constructed – if the local trust committee loses the appeal, expect to see municipalities update their bylaws to regulate this.
  • If the trial judge’s decision is upheld, the best time to build protective structures might be immediately after the appeal, before the municipality brings in onerous bylaws (or before the province enacts legislation to abrogate the right).
  • However,
    • be careful that structures don’t result in erosion to your neighbour’s property, and
    • be prepared to prove that there was actual erosion, or at least a real threat of erosion.

New Data Breach Reporting Rules

Have you ever:

  • lost your mobile phone?
  • had your laptop stolen?
  • misplaced a USB drive?

Under new federal rules that took effect last fall, you may be required to report these incidents to the federal privacy commissioner. Reporting is mandatory if the data breach creates a real risk of significant harm to an individual. The degree of risk will depend on several factors, such as the potential for physical or financial harm, humiliation, or identity theft. The sensitivity of the lost information, and the possibility that is being or will be misused, must be considered.

Currently these rules apply only to businesses that are federally regulated, or organizations that share or move personal information across borders. Most BC businesses, if they only collect and use personal information in BC, are not subject to federal privacy laws. Instead, they must comply with BC’s Personal Information Protection Act (“PIPA”. PIPA does not currently require mandatory reporting, but complying with the federal law is considered best practice, and will likely become the law in BC in the near future.

Beacon Law Centre Funds Special Project for Community in the Congo

Beacon Law Centre’s staff have sponsored a child in the small village in the Democratic Republic of the Congo through World Vision Canada for the past 13 years. The team is always delighted to receive photos and correspondence from our sponsor, Emely, and are proud to be able to make a difference in her future. This past year, we found out that one of the challenges for Emely’s family is their access to clean water. Our immediate reaction to hearing this news was, what can we do to help! After corresponding and planning with World Vision Canada, we are thrilled to announce that Beacon Law Centre has funded a special project to supply Emely’s family and community with a reliable water source. Over the next few months we will be receiving progress reports on the project from World Vision Canada.

Community Involvement – Giving Back

At Beacon Law Centre we believe in giving back to our community and are proud to have contributed to the following causes and programs in 2018:

Saanich Peninsula Community Foundation

The Saanich Peninsula Community Foundation is committed to improving the quality of life on the Saanich Peninsula by promoting and increasing responsible, effective and accessible philanthropy. The Foundation uses entrusted funds to serve the interests of all Saanich Peninsula residents in education, welfare, culture, environment, health and recreation.

www.sp-cf.ca

Saanich Peninsula Hospital & Healthcare Foundation

The Saanich Peninsula Hospital & Healthcare Foundation is a registered charity that raises funds in support of the Saanich Peninsula Hospital. The Saanich Peninsula Hospital provides local access to a variety of health care services, ranging from emergency service to general surgery and a long-term care unit.

www.sphf.ca

ORCCA Dental Clinic

ORCCA Dental Clinic’s purpose is to provide children and adolescents under 19 years of age from low-income families access to oral care in a not for profit setting. It is based on the beliefs that all children and adolescents have the right to healthy oral care and that effective oral care positively transforms the health and lives of children and adolescents.

www.orccadental.org

Rotary Club of Sidney by the Sea – Monte Carlo Night

The Rotary Club of Sidney by the Sea has been in Sidney since 1994 and supports local causes as well as international projects. Through social events and activities they offer networking opportunities to help build personal and professional connections. The “Monte Carlo Gala” is the club’s premier fund raiser of the year, and enables Rotarians to support many charitable projects. For the 2018 Gala, proceeds supported the Peninsula Youth Health Clinic, Mt. Newton Centre Society, and Sidney Elementary School.

www.sidneyrotary.com

BMO Lanes & Lyrics Sponsorship – BC Children’s Hospital

BMO bankers from across the BC raise funds for BC Children’s Hospital Foundation and Kids Help Phone at the annual Lanes & Lyrics. Teams compete to raise the most funds by performing on stage and lacing up their bowling shoes.

www.bmolanesandlyrics.com 

Brentwood Bay Community Association

The Brentwood Bay Community Association is a non-profit society formed by a group of residents and volunteers. The purpose of this Society is to strengthen the community of Brentwood Bay by providing arts and cultural events for all ages. Some of the Society’s events include; Music in the Park, The Brentwood Bay Community Festival, Christmas Light Up in Brentwood Bay, Barney Bentall’s Cariboo Express and The Empourium Sessions.

www.brentwoodbay.info

Balfour’s Friends

The Balfour’s Friends Foundation aims to assist people in need by receiving and maintaining funds in order to provide supplementary aid to pet owners in need to ensure proper veterinary care can be supplied to their pet. The Foundation is non-profit and relies on donations to support pet owners.

www.balfoursfriendsfoundation.webs.com

World Vision Canada

For over 12 years, the team at Beacon Law Centre have had the option to wear jeans to work on Friday’s for a small donation. These funds go directly to a World Vision sponsor child in a developing county. At the end of the year with the leftover funds, the team gets to decide on a special gift for our sponsor’s community.

www.worldvision.ca

Firm Management Charity Golf Tournament

Each September, Firm Management hosts the Firm Management Corporation Charity Golf Tournament at the Cedar Hill Golf Course. Proceeds from the event are donated to the Saanich Peninsula Hospital Foundation and Victoria Hospice Foundation. The event provides a perfect opportunity to give back to the community while enjoying one of Victoria’s most beautiful courses, capped off with dinner among friends.

www.firmmanagement.com/about-us/community-support

Angel Flight of BC

Angel Flight of BC provides free air transportation to cancer patients requiring travel to treatment at cancer clinics and hospitals in Vancouver, Victoria and other cancer centres within the approved Angel Flight areas of operation. They are an entirely volunteer-led organization with no paid employees.

www.angelflight.ca

Island Swimming

Island Swimming provides a swimming community in Greater Victoria where success is measured beyond podium results. Island Swimming operates programs for swimmers of all ages in Victoria, Saanich and Colwood. They believe in the potential of all athletes and promote swimming as a long-term development and life long skill.

www.islandswimming.com

Sidney Piranhas Swim Club

The Piranhas Swim Club is a competitive swim club on the Saanich Peninsula that promotes the sport of swimming in a safe and enjoyable environment. The goal of the club is to provide every member an opportunity to improve swimming skills and achieve success at his or her level of ability, from beginner and intermediate to Provincial champions.

www.sidneypiranhas.com

Cat’s Cradle Animal Rescue

Cat’s Cradle Animal Rescue was founded in 2006 because of the acute need for rescue services for animals with special needs, such as serious medical conditions. They rescue, rehabilitate, spay/neuter, and re-home distressed, abandoned, or neglected cats and dogs considered unadoptable because of health, age, appearance, or temperament.

www.catscradleanimalrescue.com

Wounded Warriors Canada

Wounded Warriors Canada honours and supports Canada’s ill and injured Canadian Armed Forces members, Veterans, First Responders and their families. With support of caring Canadians and Canadian businesses from across the country, they are able to deliver a national slate of mental health programs and services that are adaptive, innovative and evidence-informed.

www.woundedwarriors.ca

Employee, Independent Contractor, or Somewhere in Between? Beware the “Dependent Contractor”

For most people, the days of retiring with a gold watch after 40 years of service with the same company are long gone. In fact, many reports indicate that Millennials prefer short term or temporary work assignments, perceiving that this provides more freedom and flexibility.

It is becoming more common for these “freelance” workers to be classified as independent contractors rather than as employees. However, the common law recognizes another category of worker, that of the “dependent contractor”. The risk of misclassifying a worker’s status can be very costly for an employer, because dependent contractors are entitled to severance if terminated.

While the maximum severance obligation under the Employment Standards Act is eight weeks, employees and dependent contractors are entitled to much more than that under the common law. It is not unusual for a judge to award up to one month of severance for each completed year of service, up to a maximum of 24 months (although in some recent cases the courts have awarded as much a 30-36 months). So terminating a long-time contractor can have severe consequences if they are found to be a dependent contractor.

Employee or Contractor

Based on its understanding of the law, the Canada Revenue Agency lists six factors to determined whether someone is an employee or a self-employed contractor:

  1. Control – who determines how, when, where and by whom the work gets done
  2. Tools and Equipment – who provides the tools to provide the service
  3. Subcontracting or hiring assistants – must the services be provided personally, or can the worker subcontract or hire assistants
  4. Financial risk – who bears the financial risk of the worker not fulfilling the obligations of the contract, and who pays the expenses
  5. Responsibility for Investment and management – who makes the business decisions that affect profit and loss, and has the worker made an investment in its business in order to provide the services
  6. Opportunity for profit – to what degree does the worker control the revenue and expenses (being paid by piece rate or commission is not considered to affect the opportunity for profit)

The courts and the CRA look at all of these factors as a whole, and may consider other relevant factors, such as whether the work is integral to the business they are working for. One of the main questions ask is “whose business is it?”

Employers may be tempted to classify workers as independent contractors to avoid overtime, vacation pay and severance obligations, as well as payroll remittance obligations. However, two recent decisions in the BC courts confirm that the law recognizes a status somewhere between employee and independent contractor: the dependent contractor. The courts have developed this concept to provide protection to economically vulnerable and dependent workers who are not employees and thus do not have the legislative protections provided to employees.

Independent or Dependent Contractor

In determining whether a contractor is an independent contractor or a dependent contractor, the courts will look at these factors:

  • Whether the contractor was largely limited to the service of the principal, or does the contractor provide the services to others as well
  • Whether the relationship was long-standing – the more permanent the term of service, the more dependent the contractor
  • Whether the parties relied on one another and closely coordinate their conduct

The court has stated that dependent contractors are entitled to the same reasonable notice of termination as an employee. As stated above, the Employment Standards Act required termination notice equal to one week of notice for each completed year of service, to a maximum of eight weeks. However, under the common law an employee is entitled to “reasonable notice”, which is often equated to one month of notice for each completed year of service. It should also be noted that a contractor can be found to be dependent even if incorporated.

Takeaway

Employers can use written contracts to limit the amount of notice that must be given to an employee  or a dependent contractor upon termination, reducing the notice/severance requirement well below what would be awarded under the common law. Written contracts are also recommended for contractors so that they will be bound by the same duties as employees when it comes to confidentially and intellectual property.

If you have any questions or would like to put written contracts into place, we’re here to help.

Federal Tax Proposals are Bad for Business

In July 2017, the federal finance minister announced proposals that would drastically affect the taxation of small business corporations. Income splitting, access to the capital gains exemption, “surplus stripping” and passive corporate income were all targeted. The government has since backed off on the surplus stripping, and the capital gains exemption proposals (for now), but is proceeding with the other proposals in somewhat amended form.

Income splitting with family members who have not contributed to the business will be severely limited. Additionally, passive income earned in a corporation will be taxed at a higher rate, reducing the ability to defer taxes by leaving profits in the corporation – a common retirement strategy for many Canadian business owners. Thankfully, existing investments will now be grandfathered, and the first $50,000 of annual passive income should not be affected. The finance minister stated that these proposals are required so that business owners don’t have “unfair tax advantages” that are not available to employees, and “pay their fair share”. In our view the proposals show a disregard for the risks that business owners and their families take to start and run a business.

Is Your Business Ready for Sale?

We have helped hundreds of clients with the purchase or sale of a business, and we have seen first had the difference it makes when the business is ready for sale. Fewer delays, a smoother closing, lower legal and accounting costs and sometimes even a higher sale price are some of the benefits for the prepared seller.

Here are some steps you can take now to get your business prepared for a sale:

  1. Get the financial records up to date.
  2. Separate personal assets and expenses from the business.
  3. Ensure the corporate records are up to date.
  4. Update your operations manual (or create one).
  5. Document and organize the licenses, permits and significant contracts.
  6. Put key employment and independent contractor agreements into writing.
  7. Resolve outstanding business disputes (with customers, suppliers, ex-employees, etc.).
  8. Prepare an asset list.
  9. List any consents required for the sale (landlord, franchisor, lender, etc.).

We offer a comprehensive Business Legal Checkup to identify outstanding legal issues, and our Business Sale Navigator® program is designed to assist business owners through the sale process. If selling your business is on your radar, give us a call.

Marijuana and the Workplace

Medical marijuana has been legal in Canada since 1999, and the recreational use of marijuana is expected to become legal in 2018. While marijuana use is not new, employers are becoming concerned about the impact that legalization and the likely increase in consumption will have in the workplace. Specific concerns include the operations of motor vehicles, decreased work performance and attendance.

The Human Resources Professionals Association recently published a white paper with the following suggestions for employers:

Employers have a duty to accommodate the disabilities of employees up to the point of undue hardship. This may include accommodating an employee’s use of medical marijuana, and even accommodating substance abuse and addictions. A zero-tolerance policy could be discriminatory against employees who use medical marijuana to treat or relieve the symptoms of a disability. Thus, zero-tolerance policies are not recommended, except where sobriety is a bonafide occupational requirement (safety-sensitive workplaces).

Employers should consider a clear drug policy that treats medical marijuana like other prescriptions, and that defines what it means to be impaired. Marijuana can be taken in may forms and doses, not all of which will affect an employee’s ability to complete their essential job duties.

Employer drug testing policies need to be kept up to date because testing technology is rapidly advancing, and a clear method of determining impairment is not yet available. Other policies should be reviewed and updated as the law develops in this area.

Earlier this year the Supreme Court of Canada ruled in favour of an employer that fired a worked who was involved in an accident with a front end loader and then tested positive for cocaine. The employer’s drug and alcohol policy required that employees disclose any dependency or addiction issues. If they did, they would be offered treatment. If they didn’t, were involved in an accident, and tested positive for drugs or alcohol, they would be fired. In this case, the employee never disclosed his drug use to the employer. After termination, he filed a human rights claim, arguing that he was fired because of his addition (which was discriminatory). The court disagreed and held that he was fired for violation the employer’s policy, a policy that was not discriminatory because he was capable of complying with it.

Policies that require disclosure of alcohol and drug dependency or addiction issues may be valid and enforceable. Policies that are impossible for an addicted employee to comply with should be avoided. Employers should make it clear that disciplinary actions are not taken because of the employee’s addiction, but because of a breach of the workplace policy.

Co-ownership Agreements

Purchasing a Home with Family Members

The cost of homes in the Greater Victoria Area increased significantly in the last few years. A lot of individuals are not able to purchase a home on their own. One of the solutions might be a joint purchase with family members. A family can purchase a joint home to live in or as an investment opportunity.

A co-ownership agreement provides for clarity and alleviates risks associated with joint ownership. An agreement will ensure that matters such as:

  • the difference between legal and beneficial ownership;
  • which parties are responsible for the mortgage;
  • who pays what expenses and in what proportion; and
  • what happens when one of the owners wants to sell; and
  • how are the funds distributed upon the sale;

are in place for you and your family’s protection.

 

Contact Beacon Law Centre for trusted advice on co-ownership agreements.

 

Article written by: Victoria Garner, Lawyer at Beacon Law Centre

Roles of Godparents & Legal Guardians

Godparents and guardians play an important role in a child’s life. Many centuries ago godparents were responsible for caring for a child should that child be orphaned. Today, godparents do not have any legal responsibility.

A godparent might help parents raise a child in the Christian faith to provide spiritual guidance and support to the child. Godparents are often chosen at a child’s baptism.

Legal guardians assume the role of the parent if the child’s parents were to pass away. Legal guardians are most often appointed through a Will.

Godparents and legal guardians have different roles. The best way to make sure that parents’ wishes regarding guardianship are respected is to state them explicitly in the parent’s Will.

Often godparents do not change during a child’s lifetime. On the other hand, the legal guardians can change. Sometimes parents do not make a guardianship designation for their children in a Will because they cannot select a guardian. That is not generally an issue because one can change his or her Will several times in their lifetime and change the names of the legal guardians. As personal circumstances change, and families relocate and grow, legal guardians might need to change.

It is possible for one’s godparents and legal guardians to be the same people. However, additional legal steps must be taken to recognize a godparent as child’s potential legal guardian. Guardians must be appointed within a parents’ Will. Without that step, a godparent cannot be guaranteed to be child’s legal guardian.

 

Article written by: Victoria Garner