BarTalk February 2002
Volume 14, Number 1

by Shelley Bentley

There are 72 BC Branch provincial Sections. These Sections play a vital role in keeping members up-to-date on changes in the law and aware of legal and political issues affecting a given area of practice. They are the main resource utilized by the BC Branch in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Poverty Law
Stuart Rennie provided an analysis of the recently passed Parental Responsibility Act. This Act imposes liability on a parent whose child intentionally takes, damages or destroys property subject to a maximum limit of $10,000.

A parent may avoid liability if the court is satisfied that he or she was exercising reasonable supervision over the child and made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that caused the property loss. The court is given the discretion to consider such factors as:

• the age and maturity of the child;

• the child’s prior conduct;

• the likelihood that the activity would result in property loss;

• psychological or medical disorders of the child or of the parent;

• whether the property loss was reasonably foreseeable by the parent;

• whether the child was under the supervision of the parent when the activity took place;

• whether the parent has sought to improve his or her parenting skills;

• whether the parent has sought professional assistance for the child that is designed to discourage activity of the kind that has resulted in the property loss; and

• any other matters the court considers relevant.

The court may also consider restitution or compensation made or paid by the child or parent in determining the amount of the damage award. Guilt under the Young Offenders Act (Canada) is proof that the offence was committed.

Civil Litigation-Vancouver and Construction (Joint Meeting)
Darrell Roberts, QC gave a case comment on the August 24, 2001 BC Supreme Court decision in The Owners, Strata Plan NW 3341 v. The Corporation of Delta et al, the first leaky condo case where a municipality has been held liable. The designer, general contractor and the Municipality of Delta were held directly liable to the owners of the Riverwest Strata Corporation for over $3 million in repair costs for three condominium buildings.

This building project was completed in 1991 and consisted of wood frame buildings featuring balconies and decks over living spaces and a “face-seal” design. This kind of design features stucco cladding against building paper against sheathing. Water is intended to stop at the stucco face. There is no back-up air cavity to facilitate drainage of penetrating water. In this project the roofs were flat with no over-hangs. The walls went up three levels and formed parapets above rooflines protected by metal-capped flashings. The drawings used for construction contained few if any details indicating how key building code provisions having to do with prevention of rainwater entry, Part 5.4 of the Building Code, were to be met. The Municipality of Delta inspected the drawings prior to issuing building and occupancy permits but did not inspect the drawings for compliance with Part 5.4. Furthermore, Delta did not require a certificate or letter of assurance from a registered architect, as provided for in their own by-laws.

Mr. Roberts mentioned the following as possible conclusions to be drawn from this case:

• Designing, constructing and approving face-sealed walls in the wet climate conditions in the Lower Mainland constitutes negligence;

• Municipalities adopting the entire BC Building Code are responsible for taking some reasonable steps to enforce that Code. Perhaps this could be done by requiring a registered architect to take responsibility for the provisions that apply to the exterior of buildings. In any event the Court found that it was unreasonable to have done nothing;

• Making designers, builders and municipalities pay for upgrading walls to an air-cavity or rain-screen system does not create an unfair quality improvement for the Strata Corporation; and

• Strata Corporations are not expected to accept the lowest cost repair bid. It depends on all of the evidence.

Wills and Trusts-Okanagan
Gordon MacRae discussed capacity issues in estate planning. He emphasized that the legal test for capacity is not the same as the medical test. The medical test is performed for the purpose of making a diagnosis for therapeutic purposes. The cause of the incapacity is important. The legal test seeks the answer to the question; “Can the client do this?”

In his presentation, Mr. MacRae referred to Dr. Sloan of the Pacific Capability Evaluation Clinic, who has suggested that the basic capacity tests, such as the mini-Folstein test for date, place, time, tend to be highly subjective. Dr. Sloan prefers the “ALARM” test of cognitive status as a tool for assessing basic capacity. It tests the following;

• Attention - focus, vigilance, ability to count backwards in odd numbers;

• Language - ability to express self, fluency ability to remember the names of things, reception of language, comprehension. This component involves following instructions such as: Write your name. Put it into an envelope. Seal the envelope. Hand the envelope to me;

• Apraxia - physical motor skills;

• Reasoning - knowledge of appropriate information such as who the Prime Minister is and what the date is. This component also relates to a person’s ability to evaluate appropriate social behaviour. Doctors watch for dullness, suspicion, eccentricity, inattentiveness, extreme happiness; and

• Memory - Short, medium and long-term memory are all important.

The nature and effect of a legal transaction determines the level of capacity required. Transactions of greater risk require a higher level of capacity. For example with gifts, either outright or by joint tenancy or by trust, the highest standard is required. The client must appreciate the giving, the consequences now and in the future and the fact that other people might be more appropriate recipients.

Delegating powers to an agent requires a lower standard. However, if the Power of Attorney being granted includes a gift for the Attorney the standard should be high. In Gordon MacRae’s opinion Representation Agreements made pursuant to section 9 of the Representation Agreement Act require a similar standard of capacity as Powers of Attorney. The lower capacity test under section 7 of the Act causes concern. Why should the person making the s.7 Representation Agreement not be required to understand at least the nature and effect of the limited powers? Without this capacity the person is exposed to risk. If the power is abused who will be liable?

By statute the test for nominating a committee is similar to the test for capacity to make a Will. The test provided by statute refers to the cause of the incapacity by referring to “disease, age, disorder of the mind or use of drugs.” In this respect it is closer to medical tests for incapacity. In Mr. MacRae’s opinion a capacity standard similar to that required for delegation would be more appropriate.

What should a solicitor do if he or she is concerned about capacity? Mr. MacRae suggests taking lots of notes and making many inquiries. Find out what is happening behind the scenes. Is there a sense of urgency? Consider repeated interviews. Keep the factors in the ALARM test in mind. In asking a doctor for a medical opinion a solicitor should direct the doctor’s attention to the legal test in writing and get a written opinion.

Shelley Bentley is in private practice at G Davies & Company.

This article originally appeared in the February 2002 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.