This week on Legally Speaking with Michael Mulligan:
A claim for an alleged breach of contract to rent a property so as to permit it to be used as an Airbnb is denied on the basis that the short-term rentals are not lawfully permitted.
Contracts involving illegal activity are not enforceable in court. You can't sue if someone breaches an agreement to pay for illegal drugs, for example.\xa0
This same issue can arise where there are contracts intended to evade taxation by paying cash.
Also discussed in the case is the concept of duress.
In order to constitute a defence to the enforceability of a contract, duress requires more than one party taking advantage of a superior bargaining position. For duress to be established there must be coercion of the will of the contracting party and the pressure must be exercised in an unfair, excessive or coercive manner.\xa0
Next on the show, a British Columbia Court of Appeal decision dealing with the certification of a class action against the Peoples Trust Company is discussed.\xa0
The class action arose as a result of the company maintaining an unencrypted copy of a database on its webserver. The database contained customer information including names, addresses, email addresses, telephone numbers, dates of birth, social insurance numbers, occupations, and more. Patches were not installed to update the software on the server, leaving it vulnerable to known exploits, which were taken advantage of in a cyber-attack that originated in the People\u2019s Republic of China.\xa0
As with many class actions, defendants often spend a great deal of legal effort resisting the certification of a claim, during which a judge would determine is a case should proceed as a class action.\xa0
One of the helpful changes that have been made to the law concerning class actions that are commenced in British Columbia is that judges can now certify a class action on an \u201copt-out\u201d basis for people who do not live in British Columbia. Prior to this change, people outside the province would need to actively \u201copt-in\u201d if they wished to participate.
Finally, a case concerning pay for judges should be determined is discussed.\xa0
Because judges are often called upon resolve disputes that involve the government, it would not be appropriate to have judges negotiating with the government over their pay.\xa0
In order to avoid this, there is an independent commission that periodically recommends changes to judges\u2019 salaries and working conditions.\xa0
Unfortunately, in British Columbia, there is a long history of the government overruling decisions of the independent commission. This has resulted in litigation before Supreme Court Judges who are not impacted by the decisions.\xa0
In order to reject a decision of the independent commission, there needs to be a rational reason for doing so. This was found to be lacking when the Legislative Assembly rejected the 2016 recommendations by the Judicial Compensation Commission.\xa0
Given this long and unsatisfactory way in which this issue has been dealt with, it would be better if the independent commission was free to set judge\u2019s salaries without affording a mechanism for the government to interfere with the outcome of this process, short of amending the legislative scheme.
Follow this link for a transcript of the show and links to the cases discussed.\xa0