Martin Fineberg or Marty, as some know him, has retired from his practice of law, after some 42 years. Retirement was a very difficult decision to make, but it was a decision that had to be made for several reasons, one being his failing health. Marty has been an associate lawyer with the firm since it’s inception in 1981when he joined  Brian Mosher and Reid Chedore in their newly formed practice.

Throughout his time as a lawyer, Marty gained experience, thanks to the tutelage of Brian and Reid. His law practice saw him practicing in many areas of law, including real property, corporate and commercial, family, criminal and administrative law. He has appeared before many administrative boards, Provincial Court, Court of King’s Bench, the Court of Appeals of New Brunswick, and the Supreme Court of Canada.   He was also elected, by his peers, to the New Brunswick Law Society Council. He also served for many years as a member of the law society’s Compensation Fund Committee, making recommendations to the Law Society Council on whether applicants qualified for compensation.

Active in the community, he was a member of the St. Joseph’s Hospital Board of Directors, the Preservation Review Board of the City of Saint John (now the Heritage Development Board), and later became its Chairman. During his tenure there, the lighting ornaments in King Square and around the City during the Christmas and winter months were designed and still displayed to this day.  He was a member of the board appointed by Saint John’s Council to make recommendations to it, for the design and construction of what is now TD Station.

As an avid sportsman, he excelled at snow skiing, water skiing and hockey. He was President of Water-Skiing New Brunswick when the Canada Games were held in Saint John in 1985. He played hockey for many years in the City Gents Hockey League and was it’s President for a period.

He was  Vice President of the Vito’s Allan Cup Senior AAA national champions as well as the President of the New Brunswick Senior AAA Hockey League, serving when  a new Constitution was drafted and agreed to by the member teams. An avid motorcyclist, he is the current President of the Quispamsis Motorcycle Club.

Marty thanks Brian Mosher, Reid Chedore, and other lawyers with the law firm, in particular Shelley Courser, Brian Delaney and Kimberly McCurdy for their never-ending support over the past 42 years as well as  all of the legal assistants who have helped him over the years. Without them and their professionalism,  legal services would not be able to be provided.

Marty is forever grateful to all of his clients, for placing their trust and confidence in him. He truly loved assisting them to the best of his abilities.

During his retirement, Marty plans to spend more time with his wife, Stephanie, his children, Nick and Erin, and his friends.  As an avid motorcyclist, he hopes he will be able to ride more frequently.

An intimate image is legally defined as “an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ. Furthermore, the image would have to be one where the person depicted had a reasonable expectation of privacy at the time of the recording and had not relinquished his or her privacy interest at the time of the offence.”

Sharing intimate images or videos of another person without their consent is a crime under the Criminal Code. As well, the Intimate Images Unlawful Distribution Act (IIUDA) recently came into force in New Brunswick, creating a statutory tort for the threatened or the actual distribution of intimate images.

This new Act allows individuals whose images were distributed to have more control over the expedited process of the removal of the images from distribution. This IIUDA allows the subject of the images the possibility to claim compensation for damages.

In section 2 of the IIUDA, the actionable tort is when a person “distributes or threatens to distribute an intimate image in relation to which a person has a reasonable expectation of privacy.” The individual can apply to the Court under sections 5 or 6 of the Act.

Section 5 allows the individual to proceed with the action, without requiring the applicant to prove that the respondent intentionally distributed the image, with an aim of causing harm.  

Under section 5, to issue an order, the court must be satisfied that (i) the image is an intimate image of the applicant; (ii) the applicant had a reasonable expectation of privacy in relation to the intimate image; and (iii) the respondent distributed or threatened to distribute the image. Under section 6, the Act creates a more “fault-based tort”, where the applicant can seek further damages, including compensatory, aggravated, and punitive damages, which would not be available in the expedited process.

Following the passing, an executor named in the will, who accepts the task, should consider fulfilling some “preliminary” tasks such as making funeral and burial arrangements, redirecting mail, and publishing an obituary.

Once the preliminary responsibilities have been completed, an Executor should begin distributing the items as outlined in the will. The Executor would need to start by paying off any estate debts, dealing with any assets and completing a tax return.

An Executor would have a duty selling or transferring any real estate.

Once the debts are paid, and the real estate is transferred or sold, an Executor of the will distribute the estate to the beneficiaries specified under the will. An Executor would distribute the assets beginning with any specific bequests (any item that is specifically gifted in the will), followed by any legacies (cash payments to the named beneficiaries). The Executor would distribute any residue (i.e. any remaining assets) to the residuary beneficiaries based on the terms of the will.   

Essentially, an executor has the duty to act in the best interests of the beneficiaries and to ensure that the wishes of the testator be carried out during the administration. The Executor of an estate chosen to help execute the wishes of the executor set out in their will and would be responsible for the maintenance of the estate, including organizing the funeral and burial wishes, and paying of any remaining debts.

Article 16 of the Residential Tenancies Act of New Brunswick provides that the landlord or any of their representatives shall not “enter the demised premises during the term of a tenancy”. However, this Act specifies that the Landlord may enter the premises without notice “where a tenant has abandoned the demised premises; or an emergency is present.”   

A landlord has the right to enter a rental unit that is currently occupied, but they must give notice to the tenant, unless it is an emergency. The landlord has the obligation to the tenant to give notice; however the amount of notice depends on the reason for entry.

A landlord who intends to enter an occupied rental unit for repairs or maintenance is only permitted to enter between 8am and 8pm, from Monday to Saturday. A landlord is not permitted to enter an occupied unit on Sundays and holidays unless it is an emergency situation.  

When a tenant requests that repairs be completed, a landlord can enter the unit without notice within 2 business days of receiving the request. If the repairs are not completed within the 2 business days of receiving this request, the landlord must provide 24h hours’ notice to the tenant before entering.

In situations of routine maintenance, a landlord must provide the tenant a minimum of 7 days’ written notice.

When emergency repairs must be done, a landlord must provide these without delay. In these situations, a landlord has the right to enter a rental until without notice.   

According to the Montreal Convention of 1999, airlines are held liable for damages that have occurred en route or as a result of delayed or cancelled flights, as well as lost or damaged luggage. The convention provides financial compensation, up to approximately $1,700 for luggage that was lost, damaged or delayed. This convention applies to international flights, as opposed to domestic flights.

When baggage is damaged or delayed, the passenger has 7 and 21 days, respectively to make a claim. However, to make a claim for lost baggage, baggage is considered lost after 21 days. After this, the passenger has two years to send a written Property Irregularity Report and file a compensation claim under the Montreal Convention.  

With financial pressures, it is becoming increasingly common to live together post-separation. In fact, the Ontario Supreme Court addressed this issue in the decision McBennett v Danis. The couple lived separate and apart, but under the same roof; in order to determine whether a couple is living “separate and apart” for the purpose of a divorce, the Ontario court summarized specific considerations:

• Spouses living separate-and-apart involves two things: 1) living apart; and 2) an intent by one or both that they live apart from each other.
• Living “apart” means physical separation. However, in some cases this can occur under the same roof.
• With that said, having two residences for a period of time, and spending significant periods apart, may not be conclusive. The main reason for having separate residences will be a factor.
• To qualify, one or both spouses must withdraw from matrimonial obligations with the intent of destroying or repudiating the marital relationship. 
• The law does not require a “meeting of the minds” regarding the intent to separate. The decision need not be a mutual one.
• A clear statement or unequivocal act by one spouse to terminate the relationship will be very relevant.
• Brief references to the possibility of reconciliation – with no serious steps toward that goal – will not necessarily end or disrupt a state of living separate-and-apart.

Among these considerations, a court would consider whether the spouses (1) still have a sexual relationship or are romantically involved with other people; (2) participate in joint social activities; (3) spend vacations together; (4) attend family events and special occasions together; (5) eat meals together and share household chores.

A particular issue in parental conduct is the risk of children being victims or witnesses of family violence. The courts are more likely to assess such a risk when deciding parenting time of the child. The presence of violence must now be a part of the assessment of a person’s fitness to parent.

In fact, recent amendments of the Divorce Act of Canada enacted certain provisions recognizing that family violence is a highly significant factor that a court would consider when determining the best interests of a child in proceedings regarding parental rights and responsibilities.

Courts don’t necessarily grant parenting time to abusive spouses. A court could, instead, grant some time with the children, in order for them to maintain meaningful contact with the parent. However, a court can make an order indicating that the abusive partner is not able to freely contact the children whenever they desire. In other words, the court will clearly indicate the terms of the parenting time in the order.

If the children are at risk of any form of abuse, parenting time could be denied all together. Alternatively, a court could order that the abusive partner exercise parenting time with the supervision of a neutral third party.  

Swimming pools are impacted by the legal system primarily in two ways. First are the regulations that the province and your municipal government may impose. These would include, for example, zoning by-laws that restrict what kind of swimming pools can be constructed. Such regulations are enforced by government officials, and a typical penalty for breaching them is a fine. Secondly, you can be sued by another individual if they get injured in your pool. In this post, we will focus on this second aspect – how to minimize the risk of being sued because of a pool-related accident.

The area of law most applicable in this context is negligence. You are not obliged to absolutely guarantee the safety of people who come onto your property – that would be impossible. However, you are required to take steps to ensure that those who do come to your property are reasonably safe.

The first obvious risk swimming pools present is drowning. You are not obliged to supervise your guests when they are using the pool. However, you must take steps to prevent people from accidentally stumbling into your pool by fencing the pool area, or your property’s boundaries in general. You also should keep the water in the pool clear enough so that a person submerged into water can be easily seen from the outside.

The second major risk is diving. Nearly all swimming pools installed in private homes are not large enough or deep enough to allow for safe diving. Diving into such a pool creates a grave risk of catastrophic personal injury. Obviously, you should not dive into such a pool yourself, not encourage others to do so. In fact, you should place a conspicuous “no diving” or “shallow water” sign by the pool. That is the cheapest and easiest way to protect yourself from a lawsuit in case someone does dive into your pool and gets injured. At the same time, the mere fact that you built a structure (e.g. an elevated deck) which made diving possible does not make you liable, so long as pool users had been warned (e.g. by the “no diving” sign) that diving would be dangerous.

Finally, you should follow the administrative and municipal regulations that may be in place in your area – not just to avoid fines, but also because you are less likely to be found negligent in a civil case if you have followed the appropriate government regulations. This is so even though the administrative regulations and negligence law are separate legal areas and complying with one does not necessarily mean you are compliant with the other.

Determining what your rights are if you lose your job largely depends on the facts of your case. If your ex-workplace is unionized, the termination provisions will be governed by the collective labour agreement. In this case, you should talk to your union representative so that your matter could proceed through the labour grievance process.

A non-unionized worker legally does not have a right to a job – the employer is entitled to terminate a worker at will. However, unless the termination is for cause, the worker is entitled to a notice of termination, or pay in lieu of notice – that is, the amount you would have earned during the notice period. Under the Employment Standards Act, a worker who has worked between 6 months and 5 years is entitled to a notice period of 2 weeks, while someone who worked 5 years or more is entitled to 4 weeks’ worth of notice. The notice must be in writing.

However, in addition to the Employment Standards Act there also exists a concept of “reasonable notice”. That is, the worker is entitled to notice that is reasonable given factors like the worker’s age, position, type of work, and most importantly, the length of time worked. This reasonable notice is usually higher than the minimum amount provided by the Employment Standards Act. Sometimes you may get a month worth of notice for each year of work. Thus, a worker working for the same employer for 5 years may be entitled to a 5-month notice before termination, or a payment equivalent to 5-months’ salary. However, there are no clear-cut rules when it comes to reasonable notice – each case is decided on its specific facts.

For finding out what your rights are if you lose your job, or for any other legal issue, please contact us.

If your land is being flooded by water from your neighbor’s land, the dispute will usually (but not always) fall under the law of nuisance. Nuisance allows you to sue someone who uses their land in a manner that interferes with your ability to reasonably enjoy your land.

When it comes to disputes over flooding, several things need to be kept in mind. Your neighbor is not liable for the flow of surface water so long as the flow is natural. However, in such a case you are free to protect your land from this water, even if it results in the water remaining on your neighbor’s land and flooding it. For example, suppose your neighbor’s lawn is naturally higher than yours, and after every rainfall the water from it flows onto your lawn. You cannot sue your neighbor, but you can build a barrier to block that water.

However, it would be a nuisance to alter the land so as to artificially increase or concentrate the natural flow of surface water. So, if your lawn gets flooded after your neighbor dug a ditch that redirects rainwater from their lawn onto yours, you may be able to sue them.

Finally, if the water flows in a natural watercourse (a river or a stream), then your neighbor cannot cut off that stream from your land, but nor can you block that stream so as to flood your neighbor’s land. The natural watercourse should not be disturbed by either side.

If you have a dispute with your neighbors because of water damage or any other issue, please contact us.