January 25, 2023

Yan Muirhead wins appeal in employee fraud case

A team from Yan Muirhead and Allen / McMillan Litigation Counsel jointly represented a group of 33 people who entered into contracts to purchase apartments in a new development in Richmond, called ALFA only to have the developer, Anderson Square Holdings Ltd., purport to cancel the pre-sale contracts. Wes McMillan and Nerissa Yan represented the plaintiffs at trial.

The developer claimed it had a right to cancel the contracts while construction was underway, which would have allowed the developer to profit from a rising property market. Its directors, which included a prominent former city councillor candidate in Richmond, claimed it cancelled the contracts because it was in financial difficulties.

The trial judge, Mr. Justice Loo, found that Anderson Square’s directors acted dishonestly when they purported to terminate the contracts. Th。e plaintiffs were awarded damages totalling $13,093,900 to compensate them for the increase in value of the apartments. Mr. Justice Loo’s reasons for judgment are published as 2024 BCSC 216 Zheng v. Anderson Square Holdings Ltd. (bccourts.ca)

Yan Muirhead partner Nerissa Yan and associate Jaime Gray successfully opposed an application from a minority shareholder of a closely held company for leave to commence a derivative action against the majority shareholder.

Yan Muirhead often acts for businesspeople in disputes between shareholders or partners in closely-held businesses. In this case, the minority shareholder alleged that the manager and majority shareholder of a company had misappropriated funds from it and sought leave from the court to commence a court proceeding against the shareholder by the company.

It was conceded that two of the four requirements for brining a derivative action were met, but Yan Muirhead successfully argued that the minority shareholder had not established she was acting in good faith or that bringing the claim would be in the best interest of the company. As a consequence, Mr. Justice Taylor dismissed the petition brought by the minority shareholder.

Yan Muirhead partner Nathan Muirhead and associate Iain Macdonald obtained an award of more than $100,000 to compensate a tenant who was improperly evicted from an apartment. The landlord was represented by a licensed property manager, who prepared documents for it, but despite that improperly evicted its tenant.

In 2021, an amendment to the Residential Tenancy Act, S.B.C. 2002, c. 78, came into force that entitles tenants to compensation of 12 times their monthly rent when a landlord evicts the tenant on the basis that the landlord wants to renovate the property or move into the property but then the landlord fails to do so. Given the state of the rental market in Vancouver, these compensation awards can be very significant.

Yan Muirhead lawyers frequently advise both landlords and tenants in tenancy matters, and appear in hearings before the Residential Tenancy Branch and on applications for judicial review of RTB hearings at the Supreme Court of British Columbia. Given the amounts that can be at stake, we recommend that landlords, particularly landlords who are not familiar with the requirements of the Residential Tenancy Act, consult with a lawyer before evicting a tenant and do not just rely on advice from a property manager.

Yan Muirhead is proud to congratulate Mia Liang and Kimm Otto who have both became qualified as paralegals through Capilano University’s Paralegal Certificate program. Both Ms. Liang and Ms. Otto previously obtained certificates as legal administrative assistants from Capilano University, and have been working full-time while also completing the three year, part-time, Paralegal Certificate program.

Yan Muirhead partner Nathan Muirhead and associate Jaime Gray obtained an order to allow a trial against a condominium developer after the developer tried to stop it through the bankruptcy process.

The trial involves a claim by a group of 33 people, who are represented at trial by Yan Muirhead partner Nerissa Yan and Allen / McMillan Litigation Counsel partner Wes McMillan, who purchased presale strata units from the developer. The developer purported to cancel these presale contracts and then sold the same units at higher prices. The start of the trial was reported by local media.

The developer filed a bankruptcy notice on the first day of trial which resulted in an automatic stay of proceedings that could have ended the trial. Mr. Justice Loo, the trial judge, found that the bona fides of the developer’s bankruptcy proposal had been called into question and that stopping the trial would unfairly prejudice the plaintiffs, and lifted the stay of proceedings so the trial will continue.

Yan Muirhead lawyers Nathan Muirhead and Jaime Gray successfully represented Yicheng Jiang in a dispute concerning an investment in a start-up waste recycling company in British Columbia. After a 16-day trial, Justice Loo found that the defendants Paul Oei and Loretta Lai made fraudulent and negligent misrepresentations that induced Mr. Miang to invest. The Court ordered that they pay damages of approximately C$5,000,000.

A prior investigation by the British Columbia Securities Commission resulted in an order against Paul Oei, but the Securities Commission did not bring enforcement proceedings against Loretta Lai for the fraud. The Court found that she played an integral role in the fraud and was fully liable.

The decision noted that a claim by Mr. Chen against the lawyers and law firm who represented Paul Oei was settled before the trial commenced. The Court’s reasons for judgment are available here: Jiang v. Oei, 2023 BCSC 921

Jaime Gray, an associate at Yan Muirhead, conducted a two and a half day trial in Small Claims Court. Ms. Gray acted for a local business that was sued by its general contractor following a renovation. Ms. Gray successfully argued that there was a fixed price contract, rather than a contract for time and materials as the claimant alleged, and obtained a favourable outcome for the defendant.

Yan Muirhead partner Nerissa Yan, and her co-counsel Caitlin Ohama-Darcus and Edith Chen represented an individual in an appeal of a decision from the Supreme Court dismissing her claim against a bank in relation to a wire transfer that she sent to fraudsters overseas.

The Court of Appeal held that was an issue as to whether the bank had breached its duty to warn the individual about the danger of fraud, and ordered that the case go to trial.

The Court of Appeal allowed an appeal brought by Yan Muirhead’s client to preserve a certificate of pending litigation in an employee fraud action. The Court of Appeal held that the chambers judge erred in principal in his assessment of both the hardship cause by the certificate of pending litigation and the strength of the employer’s case.

Nathan Muirhead and Jaime Gray represented the appellant. The Court of Appeal’s reasons are available here

Yan Muirhead LLP’s partner, Nerissa Yan (together with co-counsel, Jennifer Flood) represented Asian Women for Equality to intervene in the constitutional challenge to Canada’s prostitution laws.

On Friday, October 7, 2022, Asian Women for Equality intervened in Canadian Alliance for Sex Work Law Reform v. Canada before the Ontario Superior Court of Justice to support the constitutionality of Canada’s prostitution law, which came into effect December 2014 as the Protection of Communities and Exploited Persons Act.

The Canadian Criminal Code targets and criminalizes pimps, recruiters, sex-buyers and marketing platforms that promote prostitution as a service. The law also recognizes the vulnerability and pressures that push women into prostitution and immunizes them from criminal charges. In this way, law enforcement resources are intended to be focused on the demand side of prostitution. “The law recognizes the impact of sexism and racism in creating the conditions that empower pimps, prostitution recruiters and sex buyers while disempowering women, particularly racialized and poor women,” says Alice Lee, a member of Asian Women for Equality. The group contends that the law is constitutional and requires better enforcement.

Additionally, Asian Women for Equality aimed to assist the Court to understand the negative impact of prostitution advertising which relies on and promotes deeply racist and sexist stereotypes. Advertising or marketing the sexual services of another is criminalized, thereby interfering with rampant commercialization of prostitution.

Yan Muirhead LLP represents John Nuttall and Amanda Korody in a civil action commenced against RCMP officers, the Attorney General of Canada, and others alleging, among other causes of action, that their rights under the Charter of Rights and Freedoms were violated.

Ms. Korody and Mr. Nuttall were imprisoned for over three years until the criminal charges against them were stayed. Justice Bruce of the Supreme Court of British Columbia found that they had been entrapped by the RCMP in an improper undercover operation.

The case has been reported by the Globe and Mail here. The Globe and Mail quotes Nathan as follows:

What happened to John and Amanda was a travesty of justice. There wouldn’t have been a plot if it weren’t for the actions of the RCMP,” Mr. Muirhead said. “There was psychological coercion (and) logistical support by the RCMP. These were people who were recovering from drug addiction, on welfare, on methadone. They weren’t leaving a small radius around their basement apartment.

Ms. Korody and Mr. Nuttall are represented by Yan Muirhead partner Nathan Muirhead.

A copy of the Amended Notice of Civil claim is available here.

The Catholic Archdiocese of Vancouver and the Star of the Sea Parish have issued a historic apology to the White Rock Pride Society and to the wider LBGTQ2+ community.

The apology resolves a complaint the White Rock Pride Society filed with the B.C. Human Rights Tribunal alleging discrimination based on sexual orientation. after the Star of the Sea Parish refused to rent its community centre to host the White Rock Pride Society’s annual fundraising event in 2019. 

Ernie Klassen, president of the White Rock Pride Society, issued the following statement:

We formed the White Rock Pride Society to build understanding, support and inclusiveness in the community for people who identify as LGBTQ2+ and other at-risk groups. This is a huge step forward in creating an inclusive and diverse society. We are extremely appreciative of the Parish and Archdiocese's willingness to listen, change and work constructively towards identifying further opportunities for support, inclusion and dialogue within the Catholic Church. In the true spirit of reconciliation, the two groups have reached an agreement far better than what a ruling from the Human Rights Tribunal could have achieved.

The White Rock Pride Society was represented by Yan Muirhead partner Nerissa Yan together with Caitlin Ohama-Darcus of Nathanson Schachter & Thompson LLP.

A joint statement issued by the White Rock Pride Society, the Roman Catholic Archdiocese of Vancouver, and the Star of the Sea Parish, can be read here. Media coverage of the apology is available here and here.

On the application of Yan Muirhead’s client, a local boat repair company, Madam Justice Forth granted an order setting side an ex parte injuction that had been granted against the company and awarded costs to the company. Forth J. found that the applicant’s counsel had failed to provide important information to the chambers judge at the hearing that had taken place without notice to Yan Muirhead’s client. Nerissa Yan appeared on this application.

The reasons for judgment of Forth J. can be read here.

On January 17, 2022, Madam Justice Newbury of the BC Court of Appeal granted an application brought by Yan Muirhead’s client to preserve a certificate of pending litigation. The certificate of pending litigation, which records in the Land Title Office that a claim is made against title to the residence of the defendants, had been ordered to be struck by a justice of the Supreme Court, but Newbury J.A. allowed an applicaiton to preserve the CPL pending appeal.

The lawsuit involves allegations, which are denied by the defendants, that Yan Muirhead’s client, a car dealership, was defrauded by its former director and general manager. Nathan Muirhead and Nerissa Yan are involved in the representation.

The reasons for judgment of Newbury J.A. are available here.

On January 17, 2022, Master Harper of the Supreme Court of British Columbia allowed an application brought by Yan Muirhead’s client to amend a pleading to allege that the defendant had improperly destroyed evidence in the course of litigation. The defendant had saught to prevent this allegation from being pleaded. The decision is one of the first reported decisions in British Columbia in which a plaintiff has been permitted by the court to plead spoiliation.

Nathan Muirhead and Jaime Gray of Yan Muirhead represented the plaintiff.

The reasons for judgment of Master Harper are available here.