Building projects can be delayed or derailed and costs driven up when developers and neighbouring landowners don’t reach timely agreement on access needed to operate construction cranes and perform other essential construction operations. Delays prolong the disruption and inconvenience that construction activity may cause in a neighbourhood. Higher costs are ultimately passed on to purchasers and tenants of new buildings, contributing to the problem of lack of affordability.

When negotiations for access fail, developers have been known to trespass by forging ahead with crane and shoring operations without landowner consent, resulting in litigation. Injunctions against the trespass obtained by landowners can stall construction and force resort to costly workarounds. Where workarounds are not possible or would be too costly, building projects may not proceed at all.

The study paper explains why access to neighbouring land and airspace is often needed during construction. It reviews cases where failed negotiations or a failure to negotiate led to trespassing and injunctions and explains the legal concepts involved. Then it sets out a series of potential solutions for avoiding and resolving access-related disputes.

Typical reasons why builders need access to neighbouring land and airspace

The latticework, fixed-base construction cranes that are familiar sights in urban settings often need to swing over ground lying outside the boundaries of the building site. Their movement can’t be restricted by property boundaries because they must be capable of “weathervaning” (swinging 360 degrees) for safety reasons in high winds. It’s also a legal requirement.

A preferred method for reinforcing (“shoring”) the sides of excavations to prevent cave-ins is to insert anchor rods (also called “tiebacks”) at an angle into the ground behind a temporary shoring wall that may run close to or along a property boundary. Anchor rods may be left permanently in place after construction is completed.

Consent from neighbouring landowners is needed to allow cranes and shoring installations to encroach on their property. If neighbouring landowners refuse to grant access for these purposes, developers can sometimes use mobile cranes or drive piles to support a shoring wall. These workarounds are usually more expensive than the preferred methods and often take longer.

Potential Solutions for Avoiding and Resolving Access Disputes

The study paper presents a series of possible solutions to prevent or resolve construction-related access disputes. The continuum runs from potential solutions that require the least governmental involvement to ones requiring the most.

At one end of the continuum, there are strategies where there is little or no government involvement, except for municipal co-operation and support. These include public education campaigns, neighbourhood-level informational initiatives, and early contact with the landowners surrounding a proposed building site. These initiatives would cover matters like the safety standards that apply to construction cranes, reasons why builders need timely access to adjacent ground and airspace, and the importance of proper shoring for the stability of soil and structures surrounding an excavation.

Another initiative to prevent disputes could be a code of best practices in negotiating access, created by the development industry in collaboration with other stakeholder interests, principally landowners and municipalities. The best practices code would draw upon the collective well of experience in achieving successful outcomes.

Moving on to the middle range of the continuum, the study paper covers mediation and arbitration processes for resolving situations where access is in dispute between a developer and a landowner. As a landowner is not legally obligated to grant access to a developer, resort to voluntary mediation and arbitration could be unlikely. Mandatory mediation or arbitration, on the other hand, could play a significant role in resolving access disputes if a decision-making body were given the necessary authority and the process could be invoked by either the developer or landowner when initial negotiations fail.

Legislation would be needed to make mediation or arbitration mandatory to resolve disputes over construction-related access. The study paper suggests that the Surface Rights Board that now settles the terms of surface leases in the oil and gas and mining sectors, including the level of rent, could be given decision-making authority over construction access disputes as well. The Surface Rights Board uses a mediation-arbitration process. It first tries to mediate a dispute over entry and access between an oil and gas or mining operator and a surface landowner, and if mediation is unsuccessful, the process moves on to arbitration.

Another solution might be to give a court the power to decide whether a developer should be given access to neighbouring property and set the compensation the developer should pay to the landowner. Either party could apply to the court to decide these matters. Australian states, New Zealand, and the UK have legislation allowing similar court applications.

At the far end of the continuum where the most government involvement is to be found are potential solutions involving public policy choices requiring legislative changes to cut down the scope for access disputes. These include passing a law that a crane swinging through airspace is not a trespass. That would make it less likely that a non-consenting landowner could obtain an injunction preventing crane operation, but the landowner could still sue the developer for nuisance if the landowner could prove there was substantial interference with the use of the land below and the intrusion was not by consent.

Another policy choice could be passing a law that simply prevents an injunction from being awarded to a non-consenting landowner against trespass by crane overswing, leaving it still open to the landowner to sue for damages.

The requirement for strata corporations to pass a resolution by a ¾ vote to grant a developer a right of access to common property could be removed so that the resolution could pass with a simple majority of strata lot owners being in favour. This would make it easier for strata corporations to grant access on terms that are acceptable to the majority of owners.

The most drastic measure discussed in the study paper that was raised in stakeholder consultations would be to legislate an automatic right to access neighbouring land and airspace as needed for construction purposes. Landowners would not receive any compensation, except that they could take advantage of the same right of access if they redeveloped their own property in the future.

The study paper does not recommend any one of these potential solutions over another. It is meant to be a contribution to public discussion and assist stakeholders, policymakers and legislators in dealing with land and airspace access issues related to construction.

The post New BCLI Study Paper on a Current Issue in Construction and Property Law first appeared on British Columbia Law Institute.

The first draft of the 5th edition is currently out for review with pension experts. BCLI will consider their comments and make edits to the draft over the summer.

The completed 5th edition is expected to be published Fall 2025.

For more details on the project, please visit the project webpage.

The post Project Update: Pension Division Q+A 5th Edition first appeared on British Columbia Law Institute.

Changes to part 6 of the Family Law Act included clarifying and modernizing law on: locked-in retirement accounts and life income funds; private annuities; assignment of survivor benefits; calculation of commuted value; and, administrator fees.

Further, changes to the Division of Pensions Regulation included: requiring the plan administrator to annually notify a limited member who has not yet received benefits of the earliest date of the limited member’s pension eligibility; raising the maximum administrative fee for registering the spouse as a limited member of the plan and for transferring a proportionate share of the member’s defined contribution account to the credit of the spouse; revising forms P1-4 and P6-9; and, repealing form P5.

BCLI has continued its commitment to improving family law in BC through its Pension Division Questions and Answers series. The Q+A is a definitive guide on navigating the complex legal issues that arise when a spousal relationship breaks down and the family property to be divided includes benefits in a pension plan.

On December 19, 2024, the BCLI staff and volunteer editors met to discuss the 5^th edition of Pension Division Q+A. At the meeting, the group determined that potential areas for review included:

• case law;
• terminology;
• annuities;
• prescribed forms;
• administrative fees;
• Family Law Act amendments;
• references to Rutherford v Rutherford (1981 CanLII 726 (BCCA), 127 DLR (3d) 658), a leading case prior to B.C. enacting pension-division legislation;
• industry developments; and,
• locked-in retirement accounts and life income funds.

The 5^th edition Q+A will be an important guide for navigating recent legislative changes, new case law, and evolving pensions practice.

Quick links:

• Bill 17, Family Law Amendment Act, 2023 (first reading)
• Report on Pension Division: A Review of Part 6 of the Family Law Act (PDF)
• Pension Division Questions and Answers 5^th Edition Webpage
• BCLI Blog “BCLI Pension Division Report Recommendations Implemented”
• BCLI Blog “BCLI welcomes pensions division reforms”

The post Pension division reform and fifth edition Q+A updates first appeared on British Columbia Law Institute.

The BCLI’s Reconciliation Primers highlight how legal pluralism underpins meaningful implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). It can support the application and prioritization of separate and shared legal authorities. As noted in Legal Pluralism: Indigenous Legal Orders & Canadian State Law, the Act respecting First Nations, Inuit and Métis children, youth and families (the Act) presents a helpful example for how legislation can create a framework for coordinating the application of different Indigenous legal orders and state laws.

In assessing the constitutionality of the Act, the Supreme Court of Canada applied a legal pluralist analysis.[1] The Court’s analysis draws out some of the layers of legal pluralism within the Act. It is helpful to understanding the relationships between different legal norms within the legislation and Parliament’s vision for building and maintaining respectful relationships between distinct legal orders.

The Court articulated some of the ways in which the legislation brings together three different legal norms: Indigenous laws, Canadian Crown laws, and international legal standards. These norms are reflected in the process leading up to development of the Act, the text of the Act, its purpose, and the space it creates for developing legislation and government-to-government arrangements moving forward.

As the Court noted, these distinct legal norms are not stand alone elements within the legislation. They are interwoven and mutually reinforcing. For example, the purpose of the Act has three interwoven elements which support the overarching purpose of protecting the well-being of Indigenous children, youth and families. The interwoven elements of the purpose are an affirmation of inherent Indigenous jurisdiction in relation to child and family services, legislative provisions enacted by Parliament to establish national standards, and international standards as articulated in UNDRIP. The Court helpfully provides examples of how these distinct elements are mutually reinforcing:

Affirming the legislative authority of Indigenous groups, communities and peoples and adopting national standards were viewed as an integral part of implementing aspects of the UNDRIP. Similarly, the affirmation of Indigenous legislative authority was also seen to sit comfortably alongside the national standards articulated by Parliament, because Indigenous communities had been participants in formulating the standards and were expected to be participants in implementing them thereafter.[2]

As the BCLI has noted in the Reconciliation Primers, there are various ways state law can facilitate respectful relationships between distinct legal norms in a manner consistent with UNDRIP. Further, the effect of creating space for the exercise of jurisdiction by Indigenous Peoples and communities, is to invite further weaving together of Indigenous, national and international law to protect the well-being of Indigenous children, youth and families.[3]

In affirming Parliament’s openness to a legally plural framework for reconciliation, the Act and the Court’s decision help shed some insight on a path forward in the area of child and family well-being. The shift this legislation represents towards respect for Indigenous legal orders on par with federal state law is a welcome shift in the Canadian legal framework.

[1] See Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.

[2] Supra note 1 at para. 53.

[3] Supra note 1 at para. 134.

The post Legal Pluralism and the SCC’s decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families first appeared on British Columbia Law Institute.

Over the course of this project, we partnered with and learned from people living with dementia, including those with other disabilities, family caregivers and care partners and health care professionals. This included focus groups, advisory committees, consultations, and a highly attended Dementia Rights Gathering to engaging with people living with dementia, or those who live with, support, or work with people living with dementia. Throughout these conversations, we learned about barriers faced by people living with dementia but, more importantly, strategies that helped in empowering them to participate in care decisions.Our tools – practical guides, information brochures, videos and decision-making pathways – provide practical information and information about how the law works. While the resources are all interconnected, and we encourage you to review them all, you may also wish to focus on a particular issue or tool. We hope that these tools will help people living with dementia, family or friend caregivers and care partners, and health care professionals in empowering people living with dementia to participate in care decisions. You can access the CCEL Dementia + Decision-Making Project here

The post CCEL Dementia + Decision Making Project first appeared on British Columbia Law Institute.