Again the Alberta Human Rights Tribunals of Alberta interferes where it should NOT

In the recent decision of  Mihaly v. The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1 (CanLII) the Alberta Human Rights Tribunal has interfered with the ability of APEGGA, a self-regulated profession, to self regulate.  This decision ostensibly renders nugatory the legislation which authorizes engineers to self regulate.  Hopefully this will be appealed as it is not the place of the Alberta Human Rights Tribunal to dictate to APEGGA how to test for competency.

Ezra Levant, as he often does, leads the charge against this incremental interference with what are fundamentally private sectors of our society; the link to his site is Tweets show human rights judge’s unvarnished views .

Civility in Complaining - a Reblog

A reblog of portions of: HOW TO COMPLAIN - To get results, be prepared and be persistent. It also pays to be civil - BY LISA GERSTNER

WHETHER IT FILLS YOU WITH dread or gets your adrenaline pumping, confronting a business about a problem with a product or service is a task that takes time and patience. Some companies have customer service reps who are trained to ensure that you get satisfaction—up to a point. Others put you through phone-menu pinball, bouncing you around until you throw up your hands in frustration. Fortunately, even if you encounter the kind of business that hopes you give up and go away, with the right preparation, tools and mind-set, you have a good chance of getting what you want.

TAKE A DEEP BREATH

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SPEAK UP

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KEEP IT CIVIL

If a customer-service issue has you steamed, cool down enough so you can have a civil conversation. Remember that a human is at the other end—you’re likely to get better results if you don’t lose sight of that. “If you’re genuine, that goes a very long way,” says Sampson. Be firm, but keep your interaction free of insults, shouting (or its online equivalent, using all capital letters) and cursing. Reps who feel verbally abused may refuse to assist you or flag you in their files—meaning that you’ll go into future conversations with a strike against you.

Do you have anything nice to say? Launch the conversation with that, says Khozam. For example, tell a bank that you’ve been a satisfied customer for 25 years, or a restaurant that you usually love the meals it serves. Then explain your issue specifically and clearly, and ask the representative if she’s the right person to help you with it. Keep records of your correspondence: Get the names of people you speak to, take note of the date and time of your interaction, and save online conversations of all types—you may, for instance, want to take a screen shot of any Twitter dialogue you have with a company in case it removes tweets later. If the problem isn’t resolved immediately, tell the business that you plan to follow up by a certain date if you don’t hear back.

If the agent asks a lot of questions about the circumstances surrounding the issue, it may benefit you to go along with the request, even if what she’s asking for seems irrelevant. “Sometimes representatives can make exceptions if you phrase a problem a certain way,” Sampson says.

Still, even well-meaning agents may have limits on what they can do for you. They may be required to read from a script or permitted to credit, say, only up to $25 to your account, says Guy Winch, author of The Squeaky Wheel: Complaining the Right Way to Get Results, Improve Your Relationships, and Enhance Self-Esteem. If your conversation with a lower-level representative is fruitless or you feel that his best offer doesn’t do your issue justice, ask for a supervisor. You could also try asking to connect to the customer-retention or customerloyalty department.

Unhappy enough to stop using the business’s product or service? Say so. That’s what Meryn Rathert of Columbus, Ind., did after a vehicle from National Car Rental broke down as she drove to the airport. The agency sent a cab, but it took 45 minutes to arrive—especially stressful given that Rathert had to catch an international flight—and she had to use much of the cash she had planned to take on her vacation to cover the fare. When she got to the airport, agents at the National desk said they didn’t have any cash to pay her back and could reimburse only the $60 car-rental fee. So when she returned from the trip, she called the agency and spoke to a manager, who reassured her that she’d receive full compensation for the cab fare. Nevertheless, Rathert told him that the headache was severe enough to steer her away from National in the future. In an effort to win her back, National sent her a check for more than $200—the cash equivalent of a three-day car rental plus the cost of the cab ride.

Try offering a creative solution. When Amy Schmitz couldn’t locate the proof of purchase for a malfunctioning blender, the manufacturer told her that she’d have to send it back on her dime so that the company could verify that the blender didn’t work before sending her a replacement. Schmitz says the shipping fees probably would have cost more than the blender was worth. To prove that she wasn’t faking the complaint in an attempt to nab a free blender, she offered to snip the blender’s electrical cord and e-mail the company a photograph of it to show that it would no longer be useful. The company agreed.

If a representative does a bang-up job on your case, let him know—and his manager too, if possible. And if you took your complaint to social media, create some goodwill by telling your followers that your saga had a happy ending.

PRESS ON

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I have focused on the issue of civility.  In my practice I have found that you "get more bees with honey than you do with vinegar".  I cannot encourage persons enough to remember that when communicating with others in a creditor and debtor relationship that we are all human beings and none of us like being sworn at, disrespected or otherwise treated poorly.  The bully may think that this will succeed but it will not; civility is always best.

Purchaser's Liens - A Summary

In a recent case out of the Supreme Court of BC, Pan Canadian Mortgage Group Inc. v. 679972 B.C. Ltd.,2013 BCSC 1078, the Honourable Madam Justice M. Koenigsberg provided an excellent summary of the nature of a Purchaser's Lien in dismissing the assertion of Judgment Creditors that they had priority.  The following text from pages 19 to 22; I have highlighted what I consider a few salient points:

 "What are the Essential Features or Requirements for a Purchaser’s Lien?

[90] A purchaser’s lien is a well-established equitable charge over property that arises at the time a purchaser of property provides a deposit or funds to the vendor or their agent in part or whole payment of the purchase price. A purchaser’s lien is created by equity not by contract. The law establishing a purchaser’s lien has a long history stretching from at least the mid-1800’s to today. A case similar to the one at bar is Whitbread & Co., Limited v. Watt, [1902] 1 Ch. 835 at 838. In this case the purchaser was purchasing a freehold public-house plot on a building estate. The purchase was to complete as soon as 300 houses had been built on the estate. The 300 houses were not built. The purchaser sued for a return of their monies based upon a purchaser’s lien. Lord Justice Vaughan Williams stated at 838:

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The lien which a purchaser has for his deposit is not the result of any express contract; it is a right which may be said to have been invented for the purpose of doing justice. ...

[91] One of the first cases to discuss purchaser's liens is the oft cited case of Rose v. Watson, [1864] 10 H.L.C. 672. The House of Lords found that when a portion of the purchase price for property was paid the payor obtained a security interest, similar to that of a mortgagee, equivalent to the funds paid. Lord Westbury stated at 682:

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.... It was money advanced upon the faith that the land, the subject of the contract, would become the property of the Respondent; and being so paid as part of the purchase-money under the contract, and being paid in advance, on the faith of the vendor’s performance of the contract, I think that your Lordships will have little difficulty in coming to the conclusion that those sums of money thus paid formed principal sums, in respect of which there became a lien from the time of the payment of them; ... [Emphasis added]

[92] As stated by Di Castri in the Law of Vendor and Purchaser, 3rd edition, Volume 3 at para. 913, p. 18-20:

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... The lien is decreed independently of the contract, which does not give it, but furnishes the reason for the decree. ...

[93] At the time any payment on account of the purchase price is made, a purchaser obtains an equitable right to security in the land to the extent of their payments. This right is immediately vested to secure repayment of the purchase monies so paid in the event the contract is not completed through no fault of the purchaser. (Whitbread; Rose; Capital Plaza Developments Ltd. v. Counterpoint Enterprises Ltd., [1985] B.C.J. No. 321 (S.C.) at paras. 9-11).

[94] Put another way, the courts have found that the payment on account of the purchase price (whether as a deposit or otherwise) is not just a partial payment but is security for the completion of the purchase. If the purchaser fails to perform their part of the contract, the vendor has security against the funds; if the vendor fails to perform, the purchaser can recover the funds and is entitled to a lien on the subject matter of the contract. By virtue of the lien the purchaser is a secured creditor. (Levy v. Stogdon, [1898] 1 Ch. 478 (C.A.) at 486; J.A.R. Leaseholds Ltd. v. Tormet Ltd. and Kaye (1965), 48 D.L.R. (2d) 97 (Ont. C.A.))

[95] Di Castri has described the nature of a purchaser's lien at (Law of Vendor and Purchaser, 3rd edition, Volume 3, at para. 913, pp. 18-20):

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Where a contract goes off without any misconduct or default on the part of the purchaser, he acquires an equitable lien, on the subject land, in general commensurate with the purchase money paid. To put this another way, in order to do justice between a vendor and a purchaser under a contract for the sale of land, equity gives the latter a lien on the estate by way of an equitable charge in respect of all payments made on account of the price, interest, and costs.

While there is no doubt that an action to enforce a purchaser’s lien is based on an affirmance of the contract, there appears to be some technical legal question as to the affirmative right of a purchaser to claim his lien, where he has rescinded the contract. It is submitted, however, that whether the transaction falls through by reason of the inability of the vendor to convey as agreed or whether the contract is rescinded before completion by reason of the vendor’s misrepresentation of a material fact, in either event, the purchaser’s right to a lien cannot be affected. The objection is urged that, assuming the right of a purchaser to a lien, it is abandoned where the contract is rescinded. The argument is that

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In order to ascertain the real nature of the exercise of equitable power, it may be considered in relation to its basis and to the result of its operation. The basis is the promise of the vendor to convey the land, as and when agreed, and that meanwhile he is a trustee of the legal title for the purchaser to the extent of the purchase moneys paid. The extent of its operation is to subject the land to the execution of a trust, either to convey, where there has been full performance by the purchaser or to return him his moneys, where the contract has failed and ceases to be binding through no fault of the latter. It supplies a remedy where the law falls short of accomplishing full justice. If equity lays hold of a pretext, or adopts a fiction, in such a case it is not more than it does in many other cases, in order to enforce a natural right and to affect a just result.

...

[96] The enforcement of a purchaser’s lien can be sought when there is no ability to enforce specific performance or where the purchaser does not want specific performance. If specific performance is available to a purchaser title can be transferred or the purchaser can elect to claim under the purchaser's lien. In the circumstances where specific performance is not possible, the purchaser’s equitable interest in the land remains which is enforceable through the lien. (Rose; Levy; Cornwall v. Henson, [1899] 2 Ch. 710 at 714; Law of Vendor and Purchaser,

3rd edition, Volume 3, at para. 919, pp.18-26; J.A.R. Leaseholds Ltd. at para. 28).

[97] The court found that upon paying the monies the purchaser obtained a purchaser’s lien over the property as a whole (Whitbread). The principle that the lien will apply to the property as a whole rather than to the particular portion of the property for which the funds were advanced was reiterated in the British Columbia case of Lehmann v. B.R.M. Enterprises Ltd. (1978), 88 D.L.R. (3d) 87 (B.C.S.C.). In this case the plaintiff was the purchaser of a strata unit in a planned strata development. He had paid the entire purchase price for the unit to the vendor. The vendor went bankrupt and did not complete the development and did not file a strata plan. The court found that the right to the purchaser’s lien was not affected by the fact that the strata plan had not been registered. The right to the lien was not dependent upon the ability of the vendor to convey title and the purchaser was entitled to a lien over the entire development property for the amount paid notwithstanding that the lands that were the subject of the contract did not exist and specific performance could not be ordered."

Justice Koenigsberg applied this equitable principal to find in favour of the parties who registered purchaser’s liens.  It is a powerful remedy which arises in any circumstance when a purchaser pays money on a condominium project which is not completed. Developer’s often try to control this dynamic by providing in the purchase and sale agreement that a purchaser may not register a Caveat/Lien to protect money which has been paid to the Developer prior to the development occurring.  This failure to register can be fatal and it is suggested that purchasers should not agree to such limitation.

The purchaser’s lien also arises under what is referred to as an Agreement for Sale (this is distinct from an Agreement to Sell).  In this circumstance a purchaser provides money against the purchase price and continues to make payments until the full purchaser price is paid.  The title to the property subject of the sale remains in the name of the vendor and the vendor is not obliged to transfer the property to the purchaser until all payments are made.  In Alberta our Law of Property Act imposes upon vendors the obligation to commence a foreclosure in the even that a purchaser breaches an Agreement for Sale.  This statutory requirement prohibits vendors from being unjustly enriched.  The property subject of the sale will as part of the foreclosure be required to be sold and the monies paid by the purchaser are contemplated by the Court in establishing the redemption period which proceeds the Court ordered sale.  The money paid by the purchaser forms an equitable interest in the subject property and is only forfeited to the vendor and the Agreement for Sale extinguished upon completion of the foreclosure action.