January 2023

ADVOCATE

s! s ulessf er 2022 a gCon r ite r Succ Ou to tulations r

ANG A ASHLEY A

F

INGRID MOK KEVINEV Y

SWE

VIS POON V

MARSHALL

DA EMMA CIO L MICH HAO TON MIKAILA

GURMAN SIDHU AEL HAMIL

•21-year judicial career: 9 years on the BC Court of Appeal, 12 years as a Supreme Court Judge.

•Presided over all manner of cases including criminal, civil and family claims.

•27 years as a leading litigator, has appeared in all courts of British Columbia and the Supreme Court of Canada.

•Effective and respected decision-maker.

Immediately available to assist with arbitration, mediation, and other forms of dispute resolution with an emphasis on commercial and insurance disputes.

Richard Goepel, K.C. 604.642.5651 | rgoepel@watsongoepel.com

OFFICERS AND EXECUTIVES

LAW SOCIETY OF BRITISH COLUMBIA

Christopher McPherson, K.C. President

Don Avison, K.C.

Chief Executive Officer and Executive Director

BENCHERS

APPOINTED BENCHERS

Paul A.H. Barnett

Sasha Hobbs

Dr. Jan Lindsay

ELECTED BENCHERS

Kim Carter

Tanya Chamberlain

Jennifer Chow, K.C.

Cheryl S. D’Sa

Tim Delaney

Lisa H. Dumbrell

Brian Dybwad

Brook Greenberg, K.C.

Katrina Harry

Lindsay R. LeBlanc

Geoffrey McDonald

Steven McKoen, K.C.

Michèle Ross

Natasha Tony

Guangbin Yan

Jacqueline McQueen, K.C.

Paul Pearson

Georges Rivard

Kelly Harvey Russ

Gurminder Sandhu

Thomas L. Spraggs

Barbara Stanley, K.C.

Michael F. Welsh, K.C.

Kevin B. Westell

Sarah Westwood

Gaynor C. Yeung

CANADIAN BAR ASSOCIATION

BRITISH COLUMBIA BRANCH

BOARD OF DIRECTORS

Aleem S. Bharmal, K.C.

President

Scott Morishita

First Vice President

Lee Nevens

Second Vice President

Judith Janzen

Finance & Audit Committee Chair

Dan Melnick

Young Lawyers Representative

Rupinder Gosal

Equality and Diversity Representative

Randolph W. Robinson

Aboriginal Lawyers Forum Representative

Patricia Blair

Director at Large

Adam Munnings

Director at Large

Mylene de Guzman

Director at Large

Sarah Klinger

Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL BRITISH COLUMBIA BAR ASSOCIATIONS

ABBOTSFORD & DISTRICT

Kirsten Tonge, President

CAMPBELL RIVER

Ryan A. Krasman, President

CHILLIWACK & DISTRICT

Nicholas Cooper, President

COMOX VALLEY

Michael McCubbin

Shannon Aldinger

COWICHAN VALLEY

Jeff Drozdiak, President

FRASER VALLEY

Michael Jones, President

KAMLOOPS

Kelly Melnyk, President

KELOWNA

Taylor-Marie Young, President

KOOTENAY

Dana Romanick, President

NANAIMO CITY

Kristin Rongve, President

NANAIMO COUNTY

Lisa M. Low, President

NEW WESTMINSTER

Mylene de Guzman, President

NORTH FRASER

Lyle Perry, President

NORTH SHORE

Adam Soliman, President

PENTICTON

Ryu Okayama, President

PORT ALBERNI

Christina Proteau, President

PRINCE GEORGE

Marie Louise Ahrens, President

PRINCE RUPERT

Bryan Crampton, President

QUESNEL

Karen Surcess, President

SALMON ARM

Dennis Zachernuk, President

SOUTH CARIBOO COUNTY

Angela Amman, President

SURREY

Gordon Kabanuk, President

VANCOUVER Executive

Niall Rand President

Heather Doi Vice President

Zachary Rogers Secretary Treasurer

Jason Newton Past President

VERNON

Christopher Hart, President

VICTORIA

Marlisa H. Martin, President

CARIBOO

Nathan Bauder

Susan Grattan

Nicholas Maviglia

KOOTENAY

Andrew Bird

Christopher Trudeau

NANAIMO

Johanna Berry

Patricia Blair

Kevin Simonett

PRINCE RUPERT

Sara Hopkins

VANCOUVER

Kyle Bienvenu

Karey Brooks

Joseph Cuenca

Bahareh Danael

Graham Hardy

Lisa Jean Helps

Judith Janzen

Heather Mathison

Scott Morishita

VICTORIA

Sarah Klinger

Dan Melnick

Paul Pearson

WESTMINSTER

Anouk Crawford

Mylene de Guzman

Daniel Moseley

Greg Palm

YALE

Rachel LaGroix

Michael Sinclair

Kylie Walman

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.)

Zahra Jimale, President

FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.)

Steven Ngo, President

INDIGENOUS BAR ASSOCIATION (B.C.)

Michael McDonald, President

SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA

Anita Atwal, President

ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE LA COLOMBIE-BRITANNIQUE (AJEFCB)

Sandra Mandanici, President

Jeevyn Dhaliwal, K.C. First Vice President Brook Greenberg, K.C. Second Vice President

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Understanding and Applying the Trust Provisions of the Builders Lien Act: Five Things to Know

I Am Sure I Am Right (But I Might Be Wrong): A Tax Professional’s Duty to Warn a Client About

ON THE FRONT COVER

Before he became president of the Law Society, Christopher McPherson (now K.C.), was riding a purple banana seat bicycle around the streets of Dunbar. Read where his adventures have taken him in a remarkable career in criminal law and beyond at page 15

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The Litigation Support Group

Left to Right: Kiu Ghanavizchian, Sunny Sanghera, Gary Mynett, Lucas Terpkosh, Vern Blair, Rob Mackay, Farida Sukhia

ENTRE NOUS

– C.S.

In late 2021 and early 2022, the Law Society of Ontario received information that a third-party tutoring company was facilitating cheating on the bar admission exams by providing cheating keys that directly mapped to the Law Society’s November 2021 licensing examinations. Due to concerns around COVID-19, those examinations had been administered online. With the integrity of the November 2021 examinations being called into question, the Law Society of Ontario took the following immediate actions:

•it conducted a comprehensive forensic analysis of all examination results for the November 2021 barrister and solicitor examinations (847 barrister examinations and 845 solicitor examinations);

•it retained a team of external investigators;

•it cancelled online examinations and rescheduled them to an inperson format; and

•it placed affected candidates’ licensure or eligibility to attempt another examination in abeyance pending the outcome of the investigative process.

The Law Society then announced in March 2022 that it would cancel its March 2022 licensing examinations, leaving candidates scrambling with three days’ notice ahead of the exams. Over 500 students and lawyers

“Integrity is doing the right thing, even when no one is watching.”

Lewis

signed a letter urging the Law Society to proceed with the exams as scheduled, citing interruptions to articling terms, travel plans or plans to write exams in other jurisdictions. The Law Society did not change its plans, citing the integrity of its examination process.

In May 2022, the Law Society of Ontario commenced a civil action against Canada NCA Exam Guru Inc. and its sole shareholder, Aamer Chaudhry, (as well as certain John Does) seeking relief that included a permanent injunction prohibiting the defendants from possessing and distributing examination content owned by the Law Society. In addition, the Law Society sought damages for breach of confidence, conspiracy, inducing breach of contract and copyright infringement. Mr. Chaudhry is described in the statement of claim as “a former LSO licensing candidate, but … not a licensed lawyer or paralegal.”

The Law Society alleges that Mr. Chaudhry distributed examination questions and answers to students enrolled in NCA Exam Guru’s preparation courses for the Law Society’s licensing examinations. It claims that he did so via Skype chats, WhatsApp messages and email. The claim further indicates that examination content “was imparted to the defendants … in breach of confidence” and that its use by the defendants was “unauthorized”. NCA Exam Guru and Mr. Chaudhry denied all allegations by the Law Society and issued a statement describing the Law Society’s allegations as “false and defamatory”.

Thereafter, in the summer of 2022, the Law Society notified candidates that, based on the results and recommendations of the forensic analysis, there was strong support for the conclusion that more than 150 of them had engaged in “prohibited actions” regarding the November 2021 licensing examinations. It initiated investigations during which the candidates were provided with an opportunity to respond. The Law Society advised that it would assess each candidate’s situation based on the candidate’s written submissions, evidence provided by the investigative team, the forensic analysis and the individual’s candour and cooperation with the investigation. Sanctions being considered by the Law Society included:

•deeming the results of the November 2021 barrister and/or solicitor licensing examinations to be void (in which case the candidate would receive a “fail” for the voided examination, which counts as an examination attempt);

•deeming registration in the Law Society’s licensing process to be void (in which case all previous examination attempts as well as articling might be voided); and/or

•referring the matter to the Hearing Division of the Law Society Tribunal.

A full year after the examinations in issue were written, decisions were rendered against most of the individuals under investigation. The administrative outcomes were reported by the Law Society of Ontario as follows:

•21 candidates were advised that their examination results are void. They received a fail result for the examination, which counts as a failed attempt.

•126 candidates were advised that their exam results are void and their registration in the licensing process is also void. Such individuals are unable to reapply to enter the licensing process for a period of one year. In addition, the rendering of this administrative decision must be disclosed on future applications, at which point they may be subject to an investigation concerning whether they are presently of good character.

•one candidate was advised that neither the exam result nor the registration was being voided.

•22 candidates were advised that the investigation into their conduct had been closed without further administrative action being taken.

The Candidate Agreement that each applicant signed requires candidates to “be of good character” and to refrain from engaging in certain “Conduct Unbecoming a Candidate”, which includes a category all its own called “Licensing Dishonesty”, namely:

engaging in any form of dishonesty, fraud, cheating, misrepresentation, or other misconduct related to any aspect of the Licensing Process in order that a Candidate obtains academic credit or other Licensing Process advantage of any kind, whether or not the Candidate has been sanctioned for the conduct, and includes but is not limited to:

a. copying another person’s answer to an examination item during a Licensing Examination;

b. consulting an unauthorized source during a Licensing Examination;

c. bringing into the examination room any unauthorized materials;

d. removing from the examination room any unauthorized materials;

e. being in possession of or using unauthorized information or materials prior to or during a Licensing Examination; or

f. assisting a person to carry out an activity mentioned in this section.

On the one hand, it is amazing that any of this needs to be spelled out. On the other hand, it apparently needs to be spelled out. 126 voided exams? For cheating!? We have been curmudgeons elsewhere about cheating (in the context of the college admissions scandal in the United States).1 Our views have not changed. By the time a student has gone through high school, an undergraduate degree (or at least most of one), the LSAT, law school itself and finally the preparatory examinations for admission to the bar, should it not have been drilled into the candidate’s head that cheating is dead wrong!? The most severe consequence for cheating, in this case, was the voiding of an examination and a one-year delay in being able to try again. Essentially, a slap on the wrist—better luck next time!

Hundreds of people want to become members of a learned and noble profession that values integrity above almost everything else, and they are prepared to risk it all by cheating to get in?2 How can they be entrusted with confidences, privileged information, trust funds, property or people’s liberty if they cannot demonstrate basic (and it really is basic) integrity? Of course, they are not risking it all. They are only risking a one-year delay to gaining the credential that deems them “learned” and an officer of the court. Sure, they might have to show that they are somehow reformed and are now of “good character”, but how easy is that? A few hours in an ethics course, a meeting with a bencher, a few words about how humbled they were by the experience and, hey, presto! “Bob est ton oncle!”

The last time we worried about such things, we wondered about engineers who build bridges or design aeronautic guidance systems. What if they cheated? What if they did not have the actual skills to do the things people need them to do? Lawyers, judges and academics, need more than just skills to do their jobs. They need to be held to a higher standard. Nothing less than justice is at stake. It is interesting that the Law Society of Ontario was concerned about the integrity of its examination system. That is, it needed to stand up as something that could not be compromised. It needed to hold its own. It needed to be worthwhile and admirable. People needed to be able to rely on it.

Similarly, lawyers must have integrity so that others can be sure about them. They need to be trustworthy, principled and honourable. They are going to be fiduciaries with knowledge and power that needs to be exercised in the best interests of the client, not the self. Look, none of us are perfect. We are going to make mistakes—this is why we have insurance. But integrity is the starting point of character. Not cheating is one of the easier tasks we are called upon to do. Last time we thought about such things, we suggested that “those among us who cheated at any point in the process know who

they are … they are probably terrified at the prospect of any one of us finding out who they are.”3

It has, therefore, been a troubling time to watch a leading academic scholar and former judge who holds nearly a dozen honorary degrees and the Order of Canada4 stumble near the finish line of a distinguished career. Not only are her claims to Indigenous ancestry very much suspect (thanks to some uncompromising journalism from the CBC), but claims of a Q.C. appointment, registration in various law societies, an LL.M. from Cambridge, an honorary degree from the First Nations University of Canada and various academic publications all appear to be figments of an overactive imagination. This seems to be the ultimate cheat: the falsification of not only ability and credentials, but of identity itself. The portmanteau “pretendian” has been coined to apply to such a person.

It is not pleasant to watch someone fail, especially when the failure is spectacular, unseemly and public. This is especially so when the individual has otherwise demonstrated abilities and even successes. Skilled people hold such promise—to others, to the profession, to their family, to themselves. But cheating can undo decades of accomplishment. They say that in the law your reputation is everything. If you have a reputation for lacking in integrity, consider yourself finished. You might make it through university, you could pass the LSAT, you might get admitted to the bar, you could be a top 40 under 40, you might become partner, you could get appointed to an office or the bench, you might even get the Order of Canada. If you cannot, however, do it with integrity, beware. Pride comes before a fall. And everyone is watching.

“Live life in such a way that you would not be ashamed to sell your parrot to the town gossip.”

– Will Rogers

ENDNOTES

1. “Entre Nous” (2019) 77 Advocate 329.

2. A young associate recently told us she knows “loads” of people who cheated on the Professional Legal Training Course exams. If you are reading this endnote, you are probably not one of them.

3. Supra note 1 at 333.

4. At least at the time of writing she does.

ON THE FRONT COVER

CHRISTOPHER McPHERSON, K.C.

By Steven McKoen, K.C., and Brook Greenberg, K.C.

To sum up the new president of the Law Society of British Columbia, you could do worse than observe that he loves dogs, likes to run big cases, is indifferent to a “bit” of a messy office and is obsessed with bicycles. Christopher McPherson, K.C., is the first openly gay president of the Law Society, furthering his wellfounded reputation as a leader and trailblazer.

Christopher is a born-and-bred Vancouverite. He was raised in a house in Dunbar back when a schoolteacher and a social worker could afford a family home there. He was the fourth of five siblings and lived in the Dunbar house for his entire childhood. With seven people at home, it was crowded, and for years he had to share a bedroom with his brother. What freedom he got came while riding his bike. Around grade 4, he started riding to school: first to Southlands Elementary, and then to Lord Byng High School.

Perhaps because of the association with freedom and independence, bikes have been a central feature of Christopher’s life. While he no longer has the purple banana-seater with chopper handlebars that he pedalled around Dunbar, his lifelong fascination with two-wheelers has resulted in a current collection of seven bikes, plus one “broken bike” that he has pledged to fix “at some point”. That commitment to bike repair speaks to Christopher’s infamous stubborn perseverance. As a kid, Christopher and his brothers liked to think of themselves as bike mechanics. Unfortunately, their skill at taking bikes apart did not come with corresponding assembly skills. One brother’s attempt to “fix” the banana-seater resulted in the forks giving out, causing torn clothes and a bit of blood for Christopher.

Another outlet from a busy family life was his dog, Shep. The imaginatively named dog was a German Shepherd who preceded Christopher in the

McPherson household by two years to the day. Sharing a birthday with a 100-pound dog might lead some kids to resentment, but Christopher’s relationship with Shep gave him a love of large dog breeds that lasts to this day. As Christopher reads this piece, it is more likely than not that Tosu, his beloved 50-pound Whoodle, is lying at his feet.

When Christopher got to high school, he found his next outlet: competitive swimming. His timing was fantastic, as Vancouver had welcomed the new aquatic centre on Beach Avenue in 1974, and Christopher was one of the first few cohorts of swimmers to join the Canadian Dolphins at their new home. He specialized in the breaststroke, and whenever it came down to a choice of missing swim practice or class, the aquatic centre won out.

In 1978, Christopher enrolled at UBC. At first, he was not sure what he wanted from university, but after some casting about, he pursued a bachelor of science degree in physical geography and climatology. Christopher never made it to providing local weather forecasts because, after three years, he was not convinced that he had chosen the right path. Instead, he started taking some political science and philosophy classes. When those classes start appearing late on an undergrad transcript, law school usually follows. He had not written the LSAT, however, so he took a break year to get that behind him.

During his “gap year”, he also got a chance to indulge in more exploration than the old banana-seater could ever have delivered. In the summer of 1982, he went to China with a group from his geography classes. It was still fairly rare for foreigners to visit China then, but he managed to make the most of the opportunity. He travelled his way from Beijing and the Forbidden City, to Shanghai and the Yu Garden, through the caves of Guilin, to the tomb of Qin Shi Huangdi with its retinue of terracotta warriors and all the way to the Gobi Desert. Not a bad way to kill some time before law school.

When he returned from China, and with the LSAT completed, four law schools gave him a shot: Dalhousie, Osgoode Hall, University of Alberta and UBC. Three of those were a long way from Dunbar and had more than 50 days of snow a year, making year-round biking a challenge. It was not a difficult choice.

In 1983, Christopher began his first year at UBC’s law school along with small group classmates like Judge Greg Brown and Chief Coroner Lisa Lapointe. First year was a good experience for Christopher. He received decent grades and quickly realized that criminal law was where he wanted to practise.

He also moved out of the house and lived on his own for the first time, though Sunday dinners and trips home to do laundry were fairly standard.

His sojourn out of Dunbar was brief though, as the financial cost of freedom made him think twice and he moved back home in second and third year to save money.

In second year, Christopher sought out classes that would allow him to become the next Clarence Darrow: criminal procedure, advocacy and the criminal clinic were all on his “must take” list. By the time spring term of second year arrived, Christopher was spending most of his time at 222 Main Street doing defence work for the criminal law clinic.

His first trial involved a client who was a Guatemalan refugee. Newly arrived in Vancouver with his wife and son, he had been arrested after walking out of a London Drugs with an umbrella that he hadn’t paid for. His defence was that his son was very active and had distracted him, causing him to overlook payment. As Judge Moffat listened to Christopher, he watched the client’s son climbing the chairs in the gallery and flitting around the courtroom like a hummingbird. It was the first but not the last time that the evidence spoke as eloquently as Christopher, and the client was acquitted.

Christopher’s experience at the criminal law clinic, helping a new immigrant and refugee from a repressive regime get fair treatment in a court, convinced him that criminal defence law was what he wanted to pursue. He conducted five trials that spring. While Christopher was doing what he loved, his grades suffered because class could not compete for his interest.

Between second and third year, Christopher indulged his lingering interest in China and enrolled in school there for the summer. Before he left, he set up his articling interviews. In his eagerness to cram as much as he could into this summer, he scheduled his flight so he would arrive back from China on the weekend and then have articling interviews arranged for first thing on the following Monday morning. His mother was not pleased with his time management plans, however, and intervened. She called each of the firms he was interviewing with and changed his interview dates to Wednesday to give him some time to get over his jet lag. To Christopher’s horror, by the time Wednesday had rolled around, all the firms he was interviewing at had already made offers and he was without articles. He is a dutiful son, however, and never revealed to his mom what the result of her “great idea” turned out to be.

His articling dilemma was soon sorted out and he did receive an offer of articles. Before he could accept it, however, Margaret Mason, K.C., let him know that Ray Connell was looking to take on another articling student and he seized on that opportunity. Ray Connell had six articling students in Christopher’s year but managed to keep them all busy. The firm was an

agent for the Crown in the County Court, had a thriving insurance practice and did tax prosecutions, among other work. Christopher dove into each of these areas when he started articles in 1986.

With his newfound employment, Christopher moved out of the Dunbar house and got a place in a three-storey walk-up in the West End. From there he would launch himself around the city on ever longer bike tours on the weekends, while the weeks were taken up with building a practice. Christopher worked largely with Walley Lightbody and enjoyed his mentorship immensely. Under his tutelage, Christopher worked a general litigation practice, including both criminal and civil work.

In 1989, Christopher found himself on a securities fraud case representing an insurer. A team from Freeman & Company was on for the plaintiff. He obviously acquitted himself well, because the moment it was complete the phone rang and Freeman asked him to join them. Freeman offered more money to associates than any other firm in town at the time and had a pipeline full of large and interesting cases. Christopher has always been a sucker for a big case with lots of evidence to marshal and complex points of law to argue. The extra cash was not bad either. After obtaining the blessing of his mentor, Christopher joined Freeman in 1990.

While there were not a lot of “out” lawyers at the time, Christopher did not hide the fact that he was gay. Rather, it was an “open secret”, including when Freeman was recruiting him. Freeman was looking to build an insurance practice and thought Christopher would be a great fit. For a while, Christopher thought that would work for him as well. After about a year, Christopher was sitting at his desk on a June night when he had a moment of clarity. He was a four-year call and his practice was growing ever farther away from the criminal work that he always wanted to do. Though it filled him with more than a little fear, he decided to go out on his own and do criminal defence work.

Christopher had set aside some money from his first few years of practice, but he got serious about saving as he made his plans to become a sole practitioner. He budgeted for a year with no income and started figuring out what his costs would be. Judge Jill Rounthwaite and Dimitri Kontou shared a workspace at that time, and Christopher arranged to take an office with them. He then signed up for legal aid and gave his notice. He had officially joined the criminal defence bar as a lawyer. A few weeks later, the 1991 Legal Aid strike kicked off and Christopher was left to wonder if this had been such a good idea after all.

Despite the strike, Christopher started to get some traction. A few months after he struck out on his own, he got a contract for federal drug

prosecution work at 222 Main. Additionally, he did some family law matters, legal aid files once the strike ended, duty counsel work and some conflict work referred to him. After five months, he was cash-flow positive.

After a year or two of practice, he started getting opportunities to do federal defence work, so he dropped the prosecution contract. At this point, he had managed to narrow down his practice to mostly criminal defence, with a few ad hoc prosecutions for the provincial Crown to help pay the bills. Christopher built up a loyal group of clients.

Around 1994 or 1995, he and Ann Pollack formed a partnership and opened their own chambers together in a space with three offices at Homer and Pender. Christopher Elgin, who Christopher knew from law school, soon joined them. While Elgin recalls his time working with Ann and Christopher fondly, he was not the first person to report that Christopher’s bikes were always a fixture in the workplace. One can only imagine how torn Christopher must have been between renting out that third office and losing his “bike locker”.

After a year or so, Ann left to go to the Community Legal Assistance Society and Doug Cannon joined the firm. The three of them worked together for a few years, eventually moving to Hornby Street. However, Christopher got restless. Elgin and Cannon were doing more immigration work than criminal work, and Christopher was not getting the big criminal cases he wanted. In 1999, Christopher decided to make a move and called Lothar Kiner and Peder Gulbransen in Surrey, who offered him a job as provincial Crown counsel.

As soon as Christopher arrived at the Crown, he started seeking out the big files. More than anything else, he wanted to be in court, standing in front of a jury, letting out his inner Clarence Darrow. Every morning, he would get on his bike and make the long trip from the West End to the Crown’s office in Surrey. He did not have a spare office to park his bike in, so he and his bike shared the space. While lawyers in the office admonished him that his office was not a bike locker, it was not only the bike that was the biggest issue with Christopher’s office. To this day, it is a tribute to the human mind that a person capable of such clarity of thought in the courtroom launches himself from one of the messiest offices in the province— “think of one of the levels of Dante’s Inferno ,” describes fellow Crown counsel Rod Flannigan.

As Christopher took on more and more “big files”, his reputation for handling these matters with great skill grew. His colleagues at the Crown consistently remark on his ability to engage with witnesses, to meet them where they are and to help them give evidence, even in the most challenging of situations.

Given his abilities, Chris was asked to take on more and larger files, and eventually moved from Surrey to the New Westminster Crown office.

Christopher has a reputation not just for his lawyering skills, but also for his mentoring: his many current and former juniors sing Christopher’s praises. He is also well known for maintaining collegial relations with counsel on the other side of his matters.

Christopher loves conducting jury trials. He describes them as “fun, fair, and the jury usually gets it right.” Making submissions to a jury is, to Christopher, more human and less sterile than other forms of legal argument. He appreciates getting to make his case in a more personal way.

While Christopher revels in his role as a prosecutor, he openly discusses how hard and how hard on him it can be. In particular, Christopher recounts the nightmares he frequently experiences in which a convicted accused is trying to kill him. Christopher also describes how challenging it was to deal with not one but two cases involving a mother who had killed her child. The trauma of dealing with such difficult matters has been cumulative. Asked how he deals with this darker side of his practice, he explained, “Riding my bike, cuddling my husband Kaya, cuddling my dog … getting right back into the next case and letting it distract me.”

Chief Judge Melissa Gillespie comments that Christopher’s having handled more than 50 murder trials is remarkable, particularly as relatively few people are able to take on such matters sustainably because they are so hard on counsel.

Christopher attributes his ability to avoid burning out, in part, to his work as a bencher, another role he clearly loves. Having previously considered running for bencher in order to give back to the profession, the controversy surrounding whether to accredit Trinity Western University’s proposed law school galvanized Christopher to put his name forward. It seemed unjust to Christopher that a law school would be accredited that he would be excluded from attending. Christopher’s husband, correctly sensing that being a bencher would be a good fit for him, strongly encouraged Christopher to run for election.

Successful in the 2016 election, Christopher became an active and effective bencher: chairing the Discipline Committee, co-chairing the Truth and Reconciliation Advisory Committee and bringing his experiences of dealing with trauma in practice to the Mental Health Task Force. His experiences with the Law Society were constructive and fulfilling and gave him a new lease on practice. Christopher’s leadership and contributions were obviously well appreciated by his fellow benchers, who selected him as the nominee for the leadership “ladder” in 2020.

Lest anyone doubt the perseverance and determination with which Christopher will serve as Law Society president, consider his 2019 bicycle trip to Taiwan. Christopher was biking on a mountain, having climbed 2,300 metres. On the way down, he was going too fast—as always trying to be the first to finish—in the rain attempting to navigate a switchback when he crashed. It turned out that Christopher had cracked his femur. However, he did not discover that fact until he had declined a ride to the bottom of the mountain, and instead rode the rest of the way down, broken femur and all. After having surgery the next day, including the insertion of three metal rods in his leg, Christopher was up and walking again by February 2020.

It is no surprise that Chief Judge Gillespie describes Christopher as “tenacious”. The profession and the public we serve will no doubt benefit from the tenacity of our new Law Society president.

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IN THIS TOGETHER: LIFE IN LAW AND A COMMUNITY FOR WOMEN LAWYERS

By Rebecca Shoom

Launched on International Women’s Day in March 2020, Life in Law (“LiL”) is the brainchild of two female partners at Harper Grey LLP, Kimberly Jakeman, K.C., and Una Radoja. After attending a conference for women lawyers in San Francisco in 2019, Kimberly and Una began talking about how they could make a real difference in the retention and mentorship of women in this profession. While formal, structured mentorship programs for women lawyers already existed, they identified a gap in the availability of unstructured and informal mentorship programs that presented a more relaxed and open forum to discuss the unique challenges faced by women in law. Enter LiL, an informal and confidential platform, a “safe space” for women to connect, discuss and share their experiences.

There is no question that in recent years, there has been an industrywide push for the advancement of women in the law in Canada. In many ways, these efforts have paid dividends. Women and men are graduating from Canadian law schools at approximately equal rates. There are more women in law firm leadership positions. In 2020, fifty-one per cent of inhouse counsel positions in Canada were held by women.1 There is near gender parity among justices of the Supreme Court of Canada.

But, while progress undoubtedly has been made, we still have a long way to go. Statistics consistently show that, although more women are entering the profession in recent years, women are exiting the profession, and private practice in particular, in significantly greater numbers than their male counterparts, such that they are not represented at the more senior levels:

•Statistics released as part of the Law Society of Ontario’s 2020 annual report revealed that seventy-three and a half per cent of law firm partners were men, and twenty-six and a half per cent were women. The gap was much closer at the associate level: fiftyone per cent of law firm associates were men, and forty-nine per cent were women.2

•According to research conducted by McKinsey & Company in 2017 on women in law firms, only nineteen per cent of equity partners in North American law firms are women—even though women represent forty-seven per cent of the entry-level workforce—and women are twenty-nine per cent less likely to reach the first level of partnership than are men.3

•According to a 2016 study by the Criminal Lawyers’ Association, sixty per cent of women who had started practising criminal law in 1998 had left by 2014, compared with forty-seven per cent of men.4

•According to the Mapping Her Path Data Collection and Analysis Report prepared in 2016 by the Justice Education Society of BC, sixty-six per cent of women called to the bar in 2003 were still practising in 2008, compared to eighty per cent of men.5

•According to research prepared by the Law Society of Alberta’s Retention and Re-engagement Task Force in 2014, within five years of being called to the bar, fifty-seven per cent of women will have left private practice, compared to forty-nine per cent of men.6

The disproportionate attrition rate of women is a significant barrier to achieving gender parity in private practice. With relatively low numbers of women in senior leadership positions, there is a dearth of like-minded mentorship for women in more junior roles, making it more difficult for them to access those upper levels of leadership—and continuing the cycle.

LiL was founded to combat this challenge. Today, LiL is a Canadian notfor-profit society that provides a safe and inclusive platform for women lawyers seeking help to balance life with a legal career, and support within a community of women in law. Going beyond traditional approaches aimed at lowering the attrition rate of women lawyers, the organization endeavours to reduce the exodus of women from the legal profession by providing them with opportunities to raise issues they face, in a confidential environment. LiL’s programs are free, and available nation-wide and industry-wide.

LiL offers a variety of programs to meet the varied needs of women lawyers:

• Phone support: LiL offers a phone line, open weekdays, where experienced advisors are on standby to listen to and support callers. Callers are able to ask questions, share experiences and learn from the experiences of other women members of the profession, creating a source of judgment-free, confidential, external mentorship.

• Online chat support: LiL’s online chat support is available through the organization’s website. It offers all the same one-on-one support as the phone line, but through an online chat conversation— ideal for those who may be in an environment where they are not comfortable vocally expressing their questions or concerns, or who simply prefer or find it easier to describe their situation through text.

• LiL roar line: With all the stresses of work and other areas of life, sometimes you just need a good scream or cry or rant into the void. The LiL Roar Line is a phone number that immediately forwards to an answering machine where callers can let out their emotions in a safe space. No names are required or requested, and phone numbers are neither visible nor stored. Messages are not returned or publicized (although they are reviewed by LiL, to get a better sense of the types of issues faced by women in the profession).

• Blog: The “Dear LiL” blog offers blog posts on a variety of topics relevant to women in law, with bloggers sharing their experience and insights on a wide array of issues. Bloggers may write on topics of interest to them, issues they have faced, or more lighthearted topics that may be of interest to women lawyer readers. Blog posts also may address questions or issues submitted anonymously through a web form. Contributors include members of LiL’s partner firms, as well as outside contributors; posts may be submitted for consideration on the LiL website. Recent posts have covered such topics as:

◦ reflections on being a first-generation lawyer;

◦ how to incorporate volunteer work and other community contributions into a legal practice;

◦ gendered double standard in e-mail communication;

◦ commentary on the overturning of Roe v. Wade;

◦ e-mail management while on vacation;

◦ how to ask for feedback; and

◦ fiction featuring women lawyers as protagonists.

LiL’s reach has only expanded over time. The organization is supported by partner firms across Canada, who contribute their time, ideas, knowledge and funding to promoting the purpose and vision of LiL. Most recently, Ontario’s Lerners LLP has become a LiL partner firm alongside

British Columbia’s Harper Grey LLP, in recognition of LiL’s invaluable service to women in the legal community and demonstrating the firms’ commitment to supporting the advancement of women in the legal industry. Interested in learning more? You can find more information about LiL, including how to access its programs, at <www.lifelinlaw.ca>.

ENDNOTES

1. The Counsel Network, “In-House Counsel Compensation & Career Report 2020”, online: <www.in housecounsel.com>.

2. Law Society of Ontario, “2020 Annual Report Membership Statistics”, online: <lawsocietyontario.azure edge.net/media/lso/media/annualreport/docu ments/statistics-membership-2020.pdf>.

3. McKinsey & Company, “Women in Law Firms” (October 2017), online: <www.mckinsey.com/~/ media/mckinsey/featured%20insights/gender%20e quality/women%20in%20law%20firms/women-inlaw-firms-final-103017.pdf>.

4. Criminal Lawyers’ Association, The Retention of Women in the Private Practice of Criminal Law:

Research Report (March 2016), online: <criminal lawyers.ca/wp-content/uploads/2016/03/CLAWomens-Study-March-2016.pdf>.

5. The Justice Education Society of BC, Mapping Her Path: Needs Assessment Report (March 2016), online: <static1.squarespace.com/static/55e64118e 4b05853493ed331/t/59231eda29687f7da2797 455/1495473896153/Mapping+Her+Path+Needs +Assessment_Mar+29.pdf>.

6. Law Society of Alberta, Retention and Re-engagement Task Force: Final Report (October 2014), online: <www.lawsocietylistens.ca/6200/documents/11763>.

UNDERSTANDING AND APPLYING THE TRUST PROVISIONS OF THE BUILDERS LIEN ACT: FIVE THINGS TO KNOW

By Douglas J. Conolly and Ashley K. Dhaliwal

The trust provisions of the Builders Lien Act1 (“BLA”) are often misunderstood and misapplied by practitioners. Although most of the provisions of the BLA pertain to lien rights (unsurprisingly), the trust relationships created by this statute should not be given short shrift. If understood and applied correctly, breach of trust and related claims arising from the trust provisions of the BLA can be powerful tools for an aggrieved party in a construction dispute.

TWO TYPES OF TRUST RELATIONSHIPS

There are two types of trust relationships created under the BLA.

Pursuant to s. 5(2) of the BLA, all funds in the owner’s holdback account are held in trust for the benefit of the contractor from whom the holdback was retained, subject to, inter alia, any lien claims by those engaged below the said contractor.

Pursuant to s. 10 of the BLA, all funds received by a contractor (or subcontractor) on account of the price of its contract (or subcontract) are held in trust for the benefit of all persons that the contractor (or subcontractor) engaged in connection with the improvement. All beneficiaries of the s. 10 trust must be paid before the trustee can appropriate the trust funds for its own use or uses not authorized by the trust.2

To illustrate, suppose that Alpha is the owner of a property. Alpha contracts with Bravo for the construction of a building on that property. In turn, Bravo contracts with Charlie to perform the roofing work and with Delta to perform the painting work. Charlie then contracts with Echo to supply the materials for the roofing work.

In this scenario:

•pursuant to s. 5(2), the funds held back from Bravo in Alpha’s holdback account would be held in trust for Bravo, subject to the lien claims of Charlie, Delta and Echo; and

•pursuant to s. 10:

•Bravo would hold all amounts received from Alpha on account of the price of its contract with Alpha in trust for Charlie and Delta; and

•Charlie would hold all amounts received from Bravo on account of the price of its contract with Bravo in trust for Echo.

FLOW OF RELATIONSHIPS

The scheme of ss. 5(2) and 10 is such that the trust obligations created by these provisions flow only one step down the construction pyramid. This means that the trustee-beneficiary relationship exists only between those directly above or below each another in the construction pyramid and that the trust obligations only flow downward.3

Consequently, owners do not hold s. 5(2) funds in trust for subcontractors,4 and contractors do not hold s. 10 funds in trust for the owner5 or for those engaged by their subcontractors.

Using the same scenario as above:

•Alpha would hold the s. 5(2) funds in trust only for the contractor from whom the funds were held back—namely, Bravo—and not for Charlie, Delta or Echo; and

•Bravo would hold the s. 10 trust funds in trust only for the parties it directly engaged—namely, Charlie and Delta—and not for Alpha or Echo.

LIMITATION PERIOD

Pursuant to s. 14, all s. 10 trust claims are subject to a one-year limitation period, running from the date that the head contract is completed, abandoned or terminated, or if there is no head contract, running from the date that the relevant improvement was completed or abandoned.6 Therefore, a party who has failed to file a lien within the 45-day time period stipulated by s. 20 of the BLA may still be at liberty to advance a trust claim under s. 10.

ARCHITECTS, ENGINEERS AND MATERIAL SUPPLIERS

Although architects, engineers and material suppliers can be beneficiaries of a s. 10 trust, pursuant to s. 10(4) they are not trustees of a s. 10 trust. Given that the funds received by architects, engineers and material suppliers on account of the contract or subcontract price are not impressed with a s. 10

trust, these parties are free to appropriate these funds without risking a breach of the statutory trust.

That said, when an architect, engineer or material supplier is providing services or materials to one party on account of multiple improvements, they are required to make inquiries to the party from whom they are receiving the funds in order to determine which improvement the funds are being advanced on account of7 and to credit the funds against the debt in respect of the improvement.8 Failure to do so will not constitute a breach of trust but may impact their BLA rights.9

BREACH OF TRUST

Section 11 of the BLA specifies the statutory consequences of a breach of a s. 10 trust, for both trustees and, in cases where the trustee is a corporation, its directors or officers. The statutory penalties include fines and imprisonment; however, these provisions are not exhaustive with respect to the claims, liabilities and remedies that may flow from a breach of a s. 10 trust.

A trustee’s directors, officers and other “strangers to the trust” may also be liable in tort for, inter alia, knowing assistance in breach of trust and/or knowing receipt of trust funds.10 Therefore, whenever a breach of trust claim is being advanced under the BLA, whether the relevant facts give rise to these tort claims should also be considered. This is because such claims, if proven, may entitle a wronged beneficiary to restitutionary remedies that are not expressly set out under s. 11 of the BLA

ENDNOTES

1. SBC 1997, c 45 [BLA].

2. Aside from payment to beneficiaries, see s 11(4) of the BLA for other authorized uses of s 10 trust funds.

3. Trust relationships flowed differently under the previous scheme of the Builders Lien Act, RSBC 1979, c 40, s 2. Therefore, one should be mindful of this when relying on case law interpreting the predecessor statute. See also Columere Park Developments Ltd v Enviro Custom Homes Inc, 2010 BCSC 1248 at paras 61–63 [Columere Park Developments Ltd].

4. Bear Creek Contracting Ltd v Pretium Exploration Inc, 2020 BCSC 1523 at paras 61, 66–68.

5. Columere Park Developments Ltd, supra note 3 at para 63. Although the court in this case confirmed that the owner was not the beneficiary of a statutory trust under the BLA, it did find a wrongful conduct constructive trust in favour of the owner over the

monies advanced by the owner to the contractor for the construction project: ibid at paras 85–89.

6. For further discussion of the implications of s 14 and the issues it raises, see British Columbia Law Institute, Report on the Builders Lien Act (2020) BCLI Report No 89 at 155, online: <www.bcli.org/wp-content/ uploads/2020/07/Report-Builders-Lien-Act-final. pdf>.

7. Ross Gibson Industries Ltd v Greater Vancouver Housing Corp, 1985 CarswellBC 293 (CA) [Ross Gibson Industries Ltd].

8. BLA, supra note 1, s 12.

9. See Ross Gibson Industries Ltd, supra note 7.

10. For a detailed discussion regarding these torts, see DBDC Spadina Ltd v Walton, 2018 ONCA 60, rev’d 2019 SCC 30.

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THE CORRECTNESS STANDARD OF REVIEW: WHAT’S IN A NAME?

By William G. Horton*

This is not an article about whether the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov1 is correct. Instead, this article focuses on the use of the word “correctness” to describe a standard of review on appeals from a lower court or tribunal to a court that exercises a statutory power of review. I suggest that the use of that word is inapt in its meaning, unhelpful in its application and the source of much of the dysfunctionality that surrounds standard of review jurisprudence. As it happens, Vavilov itself has turned out to be a very good example of why that is so.

BACKGROUND

The word “correctness” is, of course, based on the word “correct”. Among the meanings of the latter, as a noun or verb, are “true, right, accurate”; “set right”; “substitute the right thing for the wrong one”; and “admonish or rebuke”.2

The word “correctness” is central to any discussion of standards of review. With various qualifications, it is the label for one of the two common law standards of review, the other being “reasonableness”. In general terms, correctness allows the full substitution of the views of the reviewing court for that of the judge or other tribunal whose decision is challenged. On the other hand, reasonableness allows only for substitution if the reviewing judge or court considers that no reasonable court or tribunal could have reached the same conclusion.

The standard of “correctness” arises in the context of both judicial review of a decision of a statutory tribunal and appeal from a decision of a lower court. With respect to the latter, in the 2002 Housen v. Nikolaisen decision, the Supreme Court of Canada expressly adopted the correctness standard

* This article is based on a talk given at a webinar produced by the Chartered Institute of Arbitrators, Canadian Branch. I would like to express my appreciation to Aaron Hirschorn for his invaluable research and editorial assistance.

for the appellate review of pure questions of law.3 The majority decision, written by Justices Iacobucci and Major, cites the text by Justice R.P. Kerans, Standards of Review Employed by Appellate Courts, in support of using the correctness standard for pure questions of law.4 Interestingly, Justice Kerans, in his text, uses the term “concurrence” rather than “correctness”.5 However, there was a long history before Housen of the Supreme Court of Canada discussing and applying the correctness standard.6

The purpose of the correctness standard was articulated in Housen as follows:

On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus, the standard of review on a question of law is that of correctness.

… while the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill the above functions, appellate courts require a broad scope of review with respect to matters of law.7

A decision of an administrative tribunal from which there was a statutory right of appeal was under review in Vavilov. The Supreme Court of Canada held that appellate standards of review that apply in appeals from judgments of lower courts, including the standard of correctness, also apply in the context of “statutory appeal” appeals from decisions of administrative tribunals. The basis of the decision in Vavilov is that legislatures must be taken to mean the same thing whenever the same word is used in different statutes. Whereas previously the correctness standard was available only on a limited basis in statutory appeals from administrative tribunals, correctness became the principal standard of review of substantive decisions in such cases.8

Although Vavilov did not address appeals in the arbitration context, some judges and courts have held that, applying the reasoning in Vavilov, the word “appeal” must have the same meaning whether it relates to appeals from a lower court, from a statutory body or from an arbitration tribunal. Consequently they have held that the “correctness” standard should apply to appeals from arbitral awards given that any right to appeal an arbitration award to the court is based on a statute, as with appeals from statutory tribunals.9 This is so despite prior case law, including a unanimous decision of the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp., 10 holding that the “reasonableness” standard applies to most challenges to arbitration awards, including on questions of law.11 Despite the decision in Vavilov, many other courts continue to apply the decision in

Sattva as the controlling decision in relation to appeals from arbitration awards.

While some commentators advocate against eliminating the “correctness” standard (including on the basis that at times courts are actually applying the correctness standard when they claim to be applying the reasonableness standard, and therefore eliminating the correctness standard would make little difference),12 many judges, academics and commentators have questioned the utility of the correctness standard and have advocated for eliminating the correctness standard altogether.13 Some have proposed a unified standard of review of reasonableness in administrative law,14 or alternatively a standard of “reasoned justification”.15 Finally, there is the question, which I do not address here, as to whether the Supreme Court of Canada, in its formulation of a more rigorous version of the reasonableness standard in Vavilov, has in fact assimilated that standard with the correctness standard in most cases, such that the reasonableness standard provides even greater opportunities than the correctness standard for the reviewing judge or court to substitute their opinions over a broader range of substantive and procedural issues.

However, I have been unable to locate any prior commentary critiquing the use of the word “correctness” itself in the context of standards of review. I suggest that, as discussed in this article, this is a key problem with standard of review jurisprudence and its application.

Pending further discussion as to whether the two standards should survive and if so in what form, I propose that the two standards should be renamed the “substitution” and “non-substitution” standards. I argue that these terms provide more objective and less confusing guidance as to the purpose and methodology at work in applying the two standards. For the reasons outlined below, I suggest that the use of these terms may make the ongoing discussion as to standards of review clearer and less contentious even if the contents of the standards do not change.

CORRECTNESS AND THE LAW

On my first day of law school in September 1971, Gerald Le Dain, who was then the dean of Osgoode Hall Law School, delivered an introductory lecture on the law. His most memorable comment was that to be successful in law one has to be comfortable with ambiguity. As someone who had no family or personal background in the law, I was taken aback. I had the impression that the law was about clarity, consistency and—yes—correctness.

At first, I resisted Dean Le Dain’s insight and plunged into the law school curriculum looking for correct answers. My first term marks fell far short of

results that would justify such efforts. I did not begin to succeed in law school until I realized that success did not come from seeking out the right answer but in recognizing that on most issues, including questions of law, it was very much a matter of opinion—and the only opinion that mattered in the law school context was the opinion of the person setting the exam. After I put that insight into practice, my success seemed to be assured.

Once I was launched in my career as an advocate specializing in commercial litigation, the opinion of consequence became that of the court. But, of course, that oversimplifies the issue because the court is not as unitary an entity as the expression “La Cour” would suggest. It very much mattered which judge would hear the case initially. On appeals, the issue became which judges would be placed on the panel and which combination of opinions on the bench would rule the day.

On one occasion early in my career, I was told by the president of a panel in the Court of Appeal that I should not waste the time of the court by making oral submissions in support of my appeal because a recent decision of the Supreme Court of Canada on standard of review made it impossible for me to win. However, another member of the appeal panel encouraged me to continue. In keeping with the tradition of the court, the president’s dissent preceded the majority decision in my clients’ favour.16 The Supreme Court of Canada subsequently denied leave to appeal.

Even at the Supreme Court of Canada, the balance of opinion that decides a particular case does not necessarily represent a stable conclusion accepted by all as “correct”. Whereas in law school the ruling professorial opinions had already been provided to students in class, in practice as counsel the challenge was to predict judicial opinions, and the factors that motivated them, in advance. While the last judicial pronouncement on a particular principle may be important, it is the next judicial pronouncement, in your particular case, that is determinative.

Even where the law is clear, how the principles will be applied in a particular case can be uncertain. Further, there are areas in which the principles of law are disputed or evolving. One recent example is in the area of bad faith in the performance of contracts. Another example, ironically, is in the area of standard of review itself. The notion that the law can change, even after a dispute as to its content has arisen, is not a flaw of the common law system; it is a feature. This feature is called “the development of the law”.

CORRECTNESS VS FINALITY

The effect of the application of the correctness standard is the substitution of the opinion of the appeal judge or court for that of the lower court or tri-

bunal. It does not take much consideration of the matter to realize that the substituted decision may not be any more correct in any objective sense than the decision being reviewed.

As the Supreme Court of Canada itself noted in Housen: “There is no suggestion that appellate court judges are somehow smarter and thus capable of reaching a better result”.17

Indeed, as is obvious from widespread dissenting opinions, judges on a given appeal panel may differ among themselves. As Justice Sheilah Martin relates having once said to a colleague, “I would like to agree with you, but then we would both be wrong.”

The need to follow the last decision of the highest court is not related to the correctness of the decision. As Robert H. Jackson, a former associate justice of the Supreme Court of the United States, put it: “We are not final because we are infallible. We are infallible because we are final.”18

Quoting the marketing slogan of one prominent counsel firm: “Whoever wins last, wins.”

Ultimately, it is all a matter of opinion. As it turns out, in deciding which opinion matters, the notion of correctness is not particularly helpful.

EXAMPLES FROM THE ARBITRATION CONTEXT

Our jurisprudence is crammed with examples where application judges have substituted their decision for that of the adjudicator of first instance on a correctness standard only to be reversed by a higher court using the same standard of correctness, or by finding that the judge was not correct in applying the correctness standard. Very often the reversal is based on both standards where the original decision is found to be both correct and reasonable and the decision of the reversing court is found to be incorrect.

The case of Boxer Capital Corp. v. JEL Investment Ltd. provides a stark example. The first arbitration award was made on March 23, 2009. When JEL Investment Ltd. (“JEL”) failed to comply with the award, Boxer Capital Corp. (“Boxer”) commenced an action and was granted specific performance on September 22, 2009.19 JEL sought leave to appeal the arbitration award to the B.C. Supreme Court. The leave application was dismissed.20 That order was appealed to the B.C. Court of Appeal, which allowed the appeal and granted JEL leave to appeal to the B.C. Supreme Court.21 The B.C. Supreme Court set aside the award in part.22 JEL then commenced a second arbitration proceeding that resulted in two awards. These awards were then subject to a series of appeals. The appeal was ultimately allowed, and this decision was appealed to the B.C. Court of Appeal, which reinstated the second arbitration award.23

In the result, the March 2009 arbitration award was subject to a further six years of proceedings. One year involved the second arbitration. The remaining five years were spent with leave to appeal and appeal proceedings.24 Had the order of the decision makers (both judicial and arbitral) been different, the result likely would not have been the same. Instead, the ultimate decision was the result of the random selection and ordering of decision makers, each of whom had different opinions.

Sattva provides another unfortunate example of a case that alternated between appellate judges and courts agreeing with the arbitrator’s decision and those finding it should be set aside. The initial appeal by Creston Moly Corp. (“Creston”) of the arbitration decision was denied.25 Creston then appealed this decision to the B.C. Court of Appeal, which allowed the appeal and granted leave to appeal.26 The appeal on the merits in the B.C. Supreme Court was heard and dismissed in May 2011.27 That decision was appealed to the B.C. Court of Appeal, which allowed the appeal and concluded that the arbitrator’s award was “absurd”.28 This decision was appealed and the Supreme Court of Canada concluded that the Court of Appeal erred in granting leave to appeal and found that the arbitrator’s award was not unreasonable.29 Five and a half years were spent on the appeals.

As Justice La Forest noted in Kourtessis v. Minister of National Revenue: “Sometimes the opportunity for more opinions does not serve the ends of justice.”30

Ironically, the jurisprudence in relation to the standard of review provides a perfect example of the issues with the correctness standard. The precise boundaries between the correctness and reasonableness standards of review, in terms of when and how they are applied in the administrative law context, has bedeviled courts at all levels of the Canadian judicial system. The decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick31 had attempted to address this problem by establishing the correctness and reasonableness standards in relation to appeals from statutory tribunals. The correctness standard was to apply to jurisdictional issues as well as to a question of law “that is of central importance to the legal system as a whole and outside the specialized area of expertise of the administrative decision maker”.32

In Vavilov, 33 a majority of the same court decided that this was no longer correct: where a statute provides for an appeal from the decision of an administrative tribunal, the same standard of appeal should apply as in the case of appeals from a decision of a lower court. This requires the application of the correctness standard to any questions of law, thereby permitting unrestricted substitution of the opinion of the reviewing judge or court for

that of the administrative tribunal on that issue. The minority in Vavilov had condemned such changes to the law on the basis that they represented a judicial overreach that would undermine the basic premise of legislative delegation of decision-making power to bodies other than the court. The concern expressed by the minority in relation to administrative tribunals applies a fortiori to arbitration tribunals to which the disputants have by contract delegated the power to decide.

The Vavilov decision made no reference to arbitration but, at the same time, ignored an invitation by one intervenor (the British Columbia International Commercial Arbitration Centre, as it then was) to state explicitly that the decision did not apply to arbitration. Judges across the country remain divided on whether Sattva remains good law or whether it has been overturned by Vavilov in relation to appeals from arbitration awards.34

In the subsequent decision of the Supreme Court of Canada in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 35 the majority declined to answer the above question on the ground that it was not necessary to do so. The concurring minority took the opportunity to assert that Vavilov did apply to arbitration appeals on the basis that the word “appeal” in arbitration statutes must mean the same thing as the word means in statutes that allow appeals within the court system and from administrative tribunals. On that basis, the concurring minority opined that Vavilov overruled Sattva such that in arbitration appeals the correctness standard would apply to any questions of law, regardless of the reasonableness of the outcome in the arbitration as a whole.36

Despite the majority’s rebuke of the concurring minority for prematurely expressing a definitive opinion on an issue that was not necessary for the disposition of the case, those who favour the application of Vavilov to arbitration appeals have seized on the opinion of the minority and treated that as the decision of the Supreme Court of Canada in relation to arbitration appeals pending any further decision. This position is somewhat dubious given that the prior decision of the Supreme Court of Canada in Sattva is directly on point, rendered by a unanimous court, not mentioned in Vavilov and not overruled in Wastech. Nevertheless, Vavilov is now treated by some courts as having overruled Sattva. 37 At the same time, other courts continue to apply Sattva 38

In D Lands Inc. v. KS Victoria and King Inc., Justice Dietrich provides a summary of the conflicting cases and ultimately concludes that Vavilov overruled Sattva 39 The opposite conclusion was reached by Justice Koehnen in Serbcan Inc. v. National Trust Company40 and by Justice Hainey in Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gam-

ing Corporation 41 In the appeal from the latter decision, the Ontario Court of Appeal, following the lead of the majority in Wastech, declined to decide whether Vavilov had any effect on the decision of the Supreme Court of Canada in Sattva “[b]ecause a court should generally refrain from deciding issues that are unnecessary to the resolution of an appeal”.42

Courts and commentators continue to express their confusion over which standard applies.43

Whatever can be salvaged from this jurisprudential shipwreck, the most obvious casualty of it is the notion of correctness itself.

How do we explain this obvious, widespread and ironic departure from basic principles of legal precedent by those who wish to impose a correctness standard? For that explanation, we turn to a further problem with the correctness standard.

WORDS MATTER

Applying the term “correctness” to a standard that results in the substitution of their opinion for the opinion of another person in a judicial or quasijudicial role encourages the appeal judge or court to consider their own opinions to be the ones that are correct. In contrast to the correctness standard, the courts seem to perceive the reasonableness standard as an accommodation for less correct, or even incorrect, views. This conception of the difference between the two standards was exemplified by a comment made by Justice MacPherson during the argument of the appeal in the Coliseum case.44 He observed that passing the correctness standard was like getting an A on a piece of schoolwork whereas passing the reasonableness standard was like getting a B or a C—not as good as an A, but still a passing grade. With respect, this is the very attitude that has made the distinction between the two standards labelled using the “correctness” and “reasonableness” nomenclature unworkable.

Possibly, the new “robust” reasonableness standard set out in Vavilov will require that a decision under review be at least a B+ and open the door to greater substitution of the opinions of the reviewing judge or court, without the necessity of resorting to the correctness standard. But the dichotomy remains and, based on the existing labels, turns on qualitative judgments about the decision under review rather than placing the focus on the objectives to be served by replacing one opinion with another.

If judges think of the difference between the two standards as a choice between giving the parties a correct result and giving them a less correct or possibly incorrect result, it is understandable that the attraction toward providing a correct result would be almost irresistible.

The correctness standard encourages judges to take the approach that, in the words of the great journalist David Brinkley, “Everyone is entitled to my opinion.” Perhaps this describes an occupational trait shared by journalists, judges and—yes—arbitrators.

Frankly, whatever their role in the judicial system, lawyers need no encouragement to consider their own views as correct and those of others to be flawed. Indeed, one of the pervasive problems with the two standards of review under their current labels is that many judges are simply unable to accept that an opinion on a question that they find not to be correct could ever be viewed as being reasonable.45

I submit that this cognitive effect of the use of the word “correctness”, in a standard that is not actually about correctness at all, creates much of the difficulty with the application of the two standards of review.

The corollary is that the use of the word correctness contributes to an overall reduction in the impulse towards deference and collegiality. If each individual judge’s views are presumed to be correct, why should they have to defer to the views of anyone else? The characterization of individual views as “correct” leads to a greater tenacity in defending those views against the views of others, rather than focusing on the reasons why it makes sense to substitute the views of one decision maker for another.

A MODEST PROPOSAL

The word “correctness” is clearly inapt and unhelpful when used in reference to the standard of review. Also, it has counterproductive and pernicious consequences in terms of understanding and accomplishing the purpose for which that standard is applied. It unnecessarily transforms the standard into a question of who is right and who is wrong, instead of being a question about whose job it is to decide a given issue at a given point in time. The difficulty, I suggest, comes from the highly subjective use of a word that implies objectivity, and which unnecessarily places adjudicators at all levels in conflict as to who is “right”.

It would be interesting to see whether applying substantively the same legal standards, but calling them something more attuned to their purpose, could have a positive impact on how the standards are applied. I propose that the “correctness” standard be renamed the “substitution” standard, and “reasonableness” the “non-substitution” standard. In this way, the name of the standard would be aligned with the content of the standard—namely, that it is not actually dependent on subjective views of correctness but on whether or not the criteria for substituting the views of the judge or court on the appeal were met in that instance. For those who argue that merely

changing the name of the standards will not eliminate the underlying conceptual and behavioural problems at play, the answer might be: if so, it would be at worst a harmless experiment and at best an ongoing reminder to appellate judges as to the objectives of the exercise.

At a minimum, and even more modestly, this brief article will have served its purpose if it causes readers to pause occasionally when they encounter the term “correctness standard” to remind themselves that it actually has little or nothing to do with which opinion under consideration is correct.

ENDNOTES

1. 2019 SCC 65 [Vavilov].

2. The Canadian Oxford Dictionary, Thumb Index Edition (1998).

3. 2002 SCC 33 at paras 8–9 [Housen]; John Sopinka, Mark Gelowitz & W David Rankin, “Standards of Appellate Review” in Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed (Toronto: LexisNexis, 2018).

4. Housen, supra note 3 at para 8.

5. Roger P Kerans, Standards of Review Employed by Appellate Courts (Edmonton: Juriliber, 1994).

6. Canada (Director of Investigation & Research) v Southam Inc, [1997] 1 SCR 748; Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557; Pushpanathan v Canada (Minister of Employment & Immigration), [1998] 1 SCR 982 at para 27; United Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco Construction Ltd, [1993] 2 SCR 316; Royal Oak Mines Inc v Canada (Labour Relations Board), [1996] 1 SCR 369; Canadian Broadcasting Corp v Canada (Labour Relations Board), [1995] 1 SCR 157 at para 32; Toronto (City) Board of Education v OSSTF, District 15, [1997] 1 SCR 487 at para 39.

7. Housen, supra note 3 at paras 8–9.

8. Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir].

9. Indeed, as a general proposition, all appeal rights are statutory, as the jurisdiction of a court to hear any appeal must be based on a statute: Kourtessis v Minister of National Revenue, [1993] 2 SCR 53 [Kourtessis].

10. 2014 SCC 53 [Sattva].

11. Ibid at para 106.

12. Twila Reid, Amanda Whitehead & Jessica Habet, “Practitioner’s Innovative Response to Abella’s Call to Reform Judicial Review” (2018) 69 UNBLJ 364; Groia v Law Society of Upper Canada, 2018 SCC 27 at paras 177, 218, per Karakatsanis, Gascon and Rowe JJ, dissenting [Groia]; Diana Ginn, “Some Initial Thoughts on Wilson v. Atomic Energy of Canada Ltd. and Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.” (2017) 68 UNBLJ 285.

13. Reid, Whitehead & Habet, supra note 12.

14. Paul Daly, “The Signal and the Noise in Administrative Law” (2017) 68 UNBLJ 68.

15. Matthew Lewans, “Renovating Judicial Review” (2017) 68 UNBLJ 109.

16. Ontario (Attorney General) v Shanks, [1981] OJ No 79 at para 40 (CA).

17. Housen, supra note 3 at para 4.

18. Recent events have called into question the application of either the word “infallibility” or the word “finality” in relation to that court.

19. Boxer Capital Corp v JEL Investments Ltd, 2009 BCSC 1294.

20. JEL Investments Ltd v Boxer Capital Corp, 2010 BCSC 947.

21. JEL Investments Ltd v Boxer Capital Corp, 2011 BCCA 142.

22. JEL Investments Ltd v Boxer Capital Corp, 2011 BCSC 1526.

23. Boxer Capital Corp v JEL Investments Ltd, 2015 BCCA 24.

24. William G Horton, “Reforming Arbitration Appeals: The New ULCC Uniform Arbitration Act” (2017) 75 Advocate 37.

25. Creston Moly Corp v Sattva Capital Corp, 2009 BCSC 1079.

26. Creston Moly Corp v Sattva Capital Corp, 2010 BCCA 239.

27. Creston Moly Corp v Sattva Capital Corp, 2011 BCSC 597.

28. Creston Moly Corp v Sattva Capital Corp, 2012 BCCA 329.

29. Sattva, supra note 10.

30. Kourtessis, supra note 9 at para 18.

31. Supra note 8.

32. Ibid; Molson Canada 2005 v Anheuser-Busch Inc, 2010 FC 283 at para 39.

33. Supra note 1.

34. JEA v VJA, 2022 BCSC 171; Levi Graham, Brendan MacArthur-Stevens & Mitchell Folk, “A Eulogy for Arbitral Deference? The Standard of Review for Private Arbitration Post-Vavilov” (2022) 35 Can J Admin L & Prac 205; Paul Daly, “Vavilov on the Road” (2022) 35 Can J Admin L & Prac 1 [Daly, “Vavilov on the Road”].

35. 2021 SCC 7.

36. Ibid at paras 117–22.

37. Northland Utilities (NWT) Limited v Hay River (Town of), 2021 NWTCA 1; 719491 Alberta Inc v The Canada Life Assurance Company, 2021 ABQB 226 at paras 60–62.

38. Grewal v Mann, 2022 BCSC 555 at paras 9–12; Goel v Sangha, 2022 BCSC 1476 at paras 23–25; Spirit Bay Developments Limited Partnership v Scala Developments Consultants Ltd, 2021 BCSC 1415 at paras 53–59; Serbcan Inc v National Trust Company, 2022 ONSC 2644 at para 15. Justice Hunter, writing for the BC Court of Appeal, noted the following on appeal in the Spirit Bay case (2022 BCCA 407 at para 58) just before this article went to press: “[The appellant submitted] that the appeal judge erred in not giving effect to the minority view in Wastech. In the view that I take of this appeal, the standard of review does not affect the outcome. I would follow the approach of the majority judgment in Wastech and leave the determination of this question to a case where the outcome of the appeal will be affected”.

39. D Lands Inc v KS Victoria and King Inc, 2022 ONSC 1029 at paras 59–64.

40. 2022 ONSC 2644 at para 15.

41. 2020 ONSC 1516. The decision was upheld by the Ontario Court of Appeal in the result (2021 ONCA 592), but following the majority in the Supreme Court of Canada decision in Wastech in holding that the applicability of Vavilov to arbitration appeals should not be determined until a decision on that point is necessary.

42. Ontario First Nations (2008) Limited Partnership v Ontario Lottery and Gaming Corporation, 2021

ONCA 592 at para 38. Just as this article goes to press, the Ontario Court of Appeal has released its long awaited decision in Tall Ships Development Inc. v. Brockville, 2022 ONCA 861 [Tall Ships]. The Court of Appeal did not reach the issue of standard of review. It found that no extricable question of law had been raised on the appeal and that the issues of procedural fairness that had been raised on the set-aside application were simply “bootstrapped” merits arguments that the Court of Appeal rejected in relation to the appeal. Nevertheless, it is noteworthy that in making these determinations, the Court of Appeal relied on the Supreme Court of Canada decisions in Sattva, supra note 10, and Teal Cedar Products Ltd v British Columbia, 2017 SCC 32, with no reference at all Vavilov, supra note 1. It is submitted that this absence of any reference to Vavilov, together with the other comments in the Tall Ships decision that emphasize the arbitration context of the statutory provisions relating to appeals and set-aside applications, is in keeping with the conclusion argued for in this article that Vavilov simply does not apply to arbitration.

43. JEA v VJA, supra note 34 at paras 37–47; Daly, “Vavilov on the Road”, supra note 34; Graham, MacArthur-Stevens & Folk, supra note 34.

44. Ottawa (City) v Coliseum Inc, 2016 ONCA 363.

45. For example, in Groia, supra note 12, the dissent was critical of the majority decision and claimed that despite claiming to be using a reasonableness standard, the majority decision actually used the correctness standard to substitute their own opinion. Indeed, the Groia case produced an outcome with which most judicial opinions that were expressed over the history of the case disagreed.

IN A TAX OPINION

PART I

By Joel Nitikman, K.C.

“Practising tax law must sometimes feel like walking a tightrope without a net. One small misstep can have drastic consequences.”

—Lawyers Insurance Fund, “Income Tax: It’s a Risky Business”, Insurance Issues: Risk Management (2010), Issue No. 3, Winter

“Clients, I know, want two inconsistent things. They want confident advice on which they can act, and they want cautionary advice about the risks of doing so. It is a solicitor’s unhappy lot to have to try to satisfy both requirements simultaneously.”

Queen Elizabeth’s School Blackburn Ltd v. Banks Wilson Solicitors (A Firm), [2001] EWCA Civ 1360 at para. 51, per Lord Justice Sedley

This two-part article discusses two related issues:1 If a tax professional2 gives a tax opinion to a client, does the professional have a legal duty to warn the client that the opinion might be wrong, or that a revenue authority might challenge the opinion in court?3

Part I of this article sets out U.S. influence on the language of Canadian tax opinions, as well as certain other background considerations, and begins the analysis of the applicable case law. Part II, to be published in a later

I AM SURE I AM RIGHT (BUT I MIGHT BE WRONG): A TAX PROFESSIONAL’S DUTY TO WARN A CLIENT ABOUT WEAKNESSES

issue of the Advocate, examines in detail some of the additional case law underpinning my ultimate conclusion: whether a duty arises depends on the circumstances. As a general rule, a tax professional does not have a duty to warn their client that the professional’s opinion may be wrong and may be challenged by the tax authorities. However, for the reasons I develop in Parts I and II, a tax professional will have a legal duty to do so where:

(a)there is an express or implied term in the professional’s retainer agreement imposing such a duty on the professional;

(b)a failure to so warn the client will mislead the client into believing that there is no risk that the opinion is wrong or may be challenged (this may arise particularly where the client is unsophisticated in tax matters or for some other reason is unable to appreciate that an opinion by its very nature is not a guarantee and may be wrong or be challenged); or

(c)the facts taken as a whole indicate that the client had a reasonable expectation that the tax professional would warn the client of the risk of being wrong or challenged. There is no fixed or closed list of facts that might lead to this result. Some facts that would normally be relevant to such a determination include, in no particular order and with no particular weight being assigned to any one factor:

ii (i)whether the law is uncertain and to what degree;

i (ii)the consequences to the client of being wrong;

(iii)the client’s degree of sophistication in tax matters;

(iv)whether the opinion is for the client’s own use or for the use of a third party or to induce a third party to take or avoid taking a particular action;

i (v)the amount the professional charged for giving the opinion;

(vi)the lawyer’s level of confidence in the opinion;

(vii)what actions the client took independently of the lawyer;4 and

(viii)the aggressiveness of the tax plan.

THE LANGUAGE OF TAX OPINIONS—BRINGING U.S. PRACTICE TO CANADA

Before 2003, Canadian tax professionals did not generally couch their opinions in any specific form of words such as “more likely than not” or “should”, etc.

The U.S. Internal Revenue Code5 (the “Code”) imposes penalties on taxpayers in various situations. Taxpayers may avoid those penalties if they file their tax returns in a manner consistent with a tax opinion provided by a qualified tax professional. Different levels of what may be called “confidence” in the opinion are required to avoid different penalties. That is, to avoid some penalties, the opinion need state only that the professional is confident that there is a “reasonable basis” for the opinion, while avoiding others requires the professional to opine that there is “substantial authority” for the conclusion reached in the opinion.

The Code does not provide numerical guidelines for how these various terms—“reasonable basis”, “substantial authority”, etc.—are to be interpreted. Numerous articles have been written that ascribe percentages to these terms, but these are merely the writers’ opinions, do not reflect any statutory language and perhaps do not reflect even a large consensus. One writer suggested the following percentages:

•Will: 95%+

•Should: 70-75%

•More likely than not: >50%

•Substantial authority: 35-40%

•Reasonable basis: 20-25%

•Not frivolous: 5-10%6

A 2003 article introduced the U.S. practice of expressing one’s level of confidence in an opinion into Canada.7 Even though the language of Canadian tax legislation is very different than that of the Code, Canadian tax professionals began to follow the U.S. practice, with the result that, at present, almost all Canadian tax opinions use some form of the U.S. wording to express the professional’s level of confidence in the opinion being delivered.

IF I AM NOT 100% CONFIDENT, THEN I MAY BE WRONG

By definition, a legal opinion may be wrong. The very fact that all of the above percentages are less than 100 means that every opinion may be wrong. In fact, even if a professional were to say that they are 100% confident that the opinion is correct, they may be wrong. The issue, therefore, is whether they have a legal duty to tell the client that the professional may be wrong or that the relevant tax authority may challenge the opinion in court, with the concomitant expenditure of time and money required to defend such a challenge being for the client’s account.8

DUTY, NOT PRACTICE

It bears emphasizing that I have expressed the issue as a legal duty to warn the client. Whether it is good practice to warn the client is a different matter. I venture to guess that many if not most Canadian tax professionals would say that it is so obviously good practice to warn the client that the opinion may be wrong and that a revenue authority may challenge it in court as to not even warrant discussion. I disagree. In my view, most clients want opinions that do not contain what are colloquially called “weasel words”. In one decision, discussed in detail in Part II of this article, the trial judge referred to lawyers “indulging in ‘on the other hand’ advising which most clients find confusing and annoying”.9 He suggested that clients and “particularly business clients” want “straight answers”, with “no waffling” and “no ‘in my opinion’ answers”.

Accordingly, my view is that an opinion need not say invariably as a matter of practice that it may be wrong or be challenged in court. That may be the right manner of drafting an opinion in some cases, but not in others. Of course, if there is a legal duty to say that, then failure to do will be a breach of contract or the commission of a tort, so any discussion of good practice would be beside the point. This is discussed further below.

I feel reinforced in my view by the fact that one of the leading authorities on professional negligence10 suggests that where the law on which an opinion is given is “difficult”, then it would be “prudent” for the lawyer to qualify the opinion by stating some doubt as to the conclusion. But the authors go on to cite the House of Lords’ decision in Blair v. Asset Co Ltd. 11 That case concerned whether Scottish lawyers, advising on the basis of a then-current decision of the Court of Session, should have told the client that there was a possibility that that decision would be reversed by the House of Lords, given the existence of a critical comment by one Lord of Appeal in a different case. Several of the justices in Blair cited with approval the decision of Lord Kincairney at first instance,12 who held that it was not the lawyers’ duty to “reason out the matter with the liquidators, to say whether their opinion was given with confidence or hesitation, or to quote their authorities”.

THE STANDARD OF CARE

Tax professionals may be liable for both breach of contract and negligence if they fail to render a tax opinion with the appropriate standard of care.13 The Supreme Court of Canada in Central & Eastern Trust Co. v. Rafuse said: “The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor”.14

It has been said that the standard will be “higher” if the professional is a “tax specialist” or is being retained because of their high standing in the tax community.15 While the Supreme Court of Canada in Rafuse cited with apparent approval16 the distinction drawn by Justice Hallett at first instance between the standards of care applicable to an ordinary solicitor and a specialist,17 I do not believe that “higher” is the correct adjective. A tax professional holding themselves out as such must exhibit the level of knowledge and skill of a reasonably competent advisor specializing in tax matters. That level will naturally be higher than that expected of a non-specialist, but the standard is still that of a “reasonably competent” specialist.18 That is, the standard of care is that of an “average” or “ordinary” specialist.19 I believe that an Australian decision articulated this point correctly when the Victorian Supreme Court said that where a person holds themself out as a specialist, the standard of care “is that which is reasonably to be expected of an ordinary practitioner having that special skill or competence”. 20 More importantly, the court held that that “does not involve the application of a different or higher standard of care but one which reflects what is reasonably to be expected of an ordinary practitioner having or professing to have the special skill or competence concerned”.21

This more particular standard applies to lawyers,22 and especially to tax professionals.23

WHY GIVE THE OPINION?

Tax professionals give opinions for various reasons.24 Without exhausting all possibilities, opinions are given to provide clients with a plan as to how to effect a particular transaction while paying the least amount of tax; to provide those who may be considering investing in a client’s corporation, partnership or trust with some certainty as to the tax consequences of doing so; to advise a client on the risks and rewards of litigating an assessment; to prevent the application of gross negligence penalties potentially applicable to a position taken in a tax return; or to satisfy a contractual obligation not to take certain action without the support of a tax opinion.

I have concluded that the issue of whether a tax professional has a duty to warn a client that the professional’s opinion may be wrong is very dependent on the facts. I believe that one such fact is the reason for giving the opinion. I will return to this point in Part II of this article.

WHAT IF YOU HAVE SPECIFIC KNOWLEDGE?

The issues discussed in the balance of this article (both Parts I and II) should be distinguished from a different situation. In two related decisions,

the Manitoba Court of Appeal refused two accounting firms’ applications to dismiss summarily a negligence action brought against them.25 Perth Services (“Perth”) sued a law firm and the two accounting firms because of Perth’s failed investment in a tax-shelter program to support scientific research. In the first case, in an unreported decision, a master had granted Deloitte’s application to dismiss, but Perth appealed to the Manitoba Court of Queen’s Bench.26 Deloitte was the auditor and accountant of a corporation, Anaquan Scientific Research Ltd. (“Anaquan”), that had been created to raise money through the provision of tax shelters. Perth became a limited partner in Anwin Research Partnership (“Anwin”), of which Anaquan was the general partner. Deloitte provided a tax opinion to Anwin on the tax shelter. Perth did not allege that the opinion was wrong. But Perth alleged that Deloitte knew that Anaquan did not have the financial ability to support Anwin or the tax shelters and had failed to disclose Anaquan’s financial weakness to Perth and the other limited partners, even though Deloitte had noted this weakness in its audit of Anaquan’s financial statements. The Court of Queen’s Bench, as affirmed by the Court of Appeal, held that there was some evidence that Deloitte was in a relationship of sufficient proximity to Perth such that Deloitte owed Perth a duty to disclose to Perth all relevant information in Deloitte’s possession as it related to Perth’s potential investment in Anwin and that it breached its duty by failing to disclose Anaquan’s need for capital. Justice Sinclair held that Deloitte, “on all the information available to it”, had a duty to take into account (without necessarily revealing) Anaquan’s financial position, so long as the plaintiff could show that there was “even partial reliance on Deloitte’s advice”.

In the companion case, Thorne Riddell, Thorne Ernst & Whinney and Peat Marwick Thorne also moved for summary dismissal of the action against them.27 Again a master had allowed the application and again Perth appealed to the Manitoba Court of Queen’s Bench, which reversed the master. Justice Jewers, affirmed by the Court of Appeal, held that there were arguable issues about the scope of the accountants’ retainers and their obligations to disclose to Perth Anaquan’s precarious financial position and so held the matter over for trial.

THE SCOPE OF THE TAX PROFESSIONAL’S RETAINER

Regardless of whether the law of negligence requires a tax professional to warn their client of a risk that the opinion is wrong or may be challenged, the professional may have a contractual duty to do so if that duty is set out expressly or by implication in the professional’s retainer. Through the remainder of Part I of this article, I set out certain of the framework con-

cepts related to the scope of the retainer. I will turn in Part II to further examination of retainer-related considerations and other concepts affecting whether there is a legal duty to warn the client that the tax professional’s opinion might be wrong or that a revenue authority might challenge the opinion in court.

In evaluating the scope of a retainer, it is important to remember that it may stretch beyond (perhaps well beyond) its express terms. This point has been made in many cases. In a leading decision,28 Credit Lyonnais (“CL”) had entered into a long-term lease over certain premises. The lease contained a clause allowing CL to terminate the lease early, but only if it paid a termination fee on or before a particular date. CL was not, apparently, aware that for such types of provisions in a lease, time is of the essence. CL was late paying the termination fee, the landlord refused to terminate early and CL had to buy its way out of the lease at a price that exceeded significantly the amount of the termination fee. CL sued its solicitors for failing to advise CL that there was a condition precedent to exercising the termination clause and that time was of the essence in paying the termination fee.

The law firm’s defence was that providing such a warning was not within the scope of its retainer. Both sides cited previous decisions relating to the interpretation of a solicitor’s retainer. The law firm relied on decisions that appear to say that a lawyer has no duty to go beyond the express wording of a limited retainer. CL relied on decisions that appear to say that it is inherent in every retainer that a lawyer will pass on to the client facts or risks that come to the lawyer’s attention.

The High Court declined to find that these authorities were in conflict with each other and indeed found that they were consistent with each other. Justice Laddie held that, while a lawyer need only follow the scope of the retainer as set out expressly, the lawyer is required to bring to the client’s attention any significant risks of which the lawyer learns while carrying out the client’s express instructions.

That decision has been cited in numerous other decisions. In one such decision, the High Court held that it applies particularly to tax professionals.29 In another, the U.K. Court of Appeal held that the general principle is that “the scope of the retainer, and the nature and extent of the duty arising, depend on the particular documentation and the particular facts of the particular case”.30 In a third decision, the U.K. Court of Appeal summarized the relevant principles as to the scope of a professional’s retainer as follows:

iii)a solicitor’s contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake;

iii)it is implicit in the solicitor’s retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out;

iii)in determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client;

iv) in relation to (iii), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told that which he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client;

iv)the solicitor and client may, by agreement, limit the duties which would otherwise form part of the solicitor’s retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.31

In Perth Services, in respect of their retainers, the defending accounting firms argued that they were “limited retainers”, limited to mechanical tax calculations and did not encompass advising Perth on all aspects of its investment in Anwin. Justice Jewers accepted that in principle a lawyer’s or accountant’s retainer may be limited to carrying out certain functions or advising on certain matters, but also accepted, based on a New Zealand decision,32 that it would be “unreasonable and artificial” to limit a retainer to the client’s express instructions. Rather, anything that “fairly and reasonably” arises while carrying out those instructions is within the scope of the retainer. The lessons to be learned from these decisions are:

(a)a tax professional’s duty may extend beyond the technical aspects of an opinion and may include disclosing specific facts within their knowledge that may affect the client’s decision to follow the opinion;

(b)the scope of the professional’s retainer may extend beyond its express wording and may implicitly include a duty to advise a client on all aspects of its proposed course of action, including the advisability of entering into the transaction in the first place33 or of warning that a risk exists that the opinion may be wrong or may be challenged; and

(c)the mere fact that the opinion warns the client to seek its own independent advice from other tax professionals will not absolve the tax professional who renders the opinion from liability if the client relies even partially on the opinion.

In Part II of this article, I will turn to Ormindale Holdings Ltd. v. Ray, Wolfe, Connell, Lightbody & Reynolds, 34 which is a leading Canadian and Commonwealth decision on the duty to warn, consider whether it applies to tax advice and discuss how that decision and the concepts in it have been addressed in later case law. I will also raise a few additional points informing my conclusion that a legal duty to warn the client that (a) the opinion might be wrong or (b) a revenue authority might challenge the opinion in court does not arise in all cases.

ENDNOTES

1.Below, I have referred to a tax professional’s potential duty to advise a client not to enter into a risky transaction. That is a different duty than that which is the main subject of this article.

2.I have referred to “tax professionals” to include both lawyers and accountants. Technically, accountants are not allowed to practise law, and there remains some debate as to whether issuing a tax opinion is the practice of law. In practice, however, accountants do this every day, so I have included them in this discussion. See Ronald Foerster, Accountants’ Liability in Canada (Toronto: Carswell) (loose-leaf), s 7.7 (“[a]ccountants have a significant history of providing tax advice to clients. It is an area where legal and financial advice overlap and where the dividing line between the two can be murky”). For a comment on whether accountants rendering tax opinions are practising law, see Robert C Strother, “Defensive Tax Practice: Professional Negligence”, 1989 BC Tax Conference, Tab 4, at 57–60.

3.In this article, I have assumed that the tax professional has issued the opinion in a manner that is not negligent as to the actual opinion given—that is, that the facts have been reviewed carefully, adequate legal research has been done, important issues have not been assumed away, etc.

4.See Austrust Ltd v Astley (1993), 60 SASR 354 at 372 (SC), citing Ormindale Holdings Ltd v Ray, Wolfe, Connell, Lightbody & Reynolds, 1980 CarswellBC 635 (SC) [Ormindale (SC)], aff’d 1982 CarswellBC 748 (CA).

5.USC Title 26, as amended [Code].

6.Heather M Field, “Aggressive Tax Planning & the Ethical Tax Lawyer” (2017) 36:2 Va Tax Rev 261 at 271. See also a seminal article on the topic: Jasper L Cummings, Jr, “The Range of Legal Tax Opinions, with Emphasis on the ‘Should’ Opinion” (2003) 98 Tax Notes 1125.

7.See Jack Bernstein, “Understanding U.S. Tax Opinions”, Tax Profile, Issue No 9, September 2003 at 9. The article was also published as “US Tax Opinions” (2003) 11:10 Canadian Tax Highlights 8–9.

8.This is a different question from whether the lawyer has a duty to advise of the risks associated with a particular course of action. In Phinny v Macaulay, 2008 CarswellOnt 5477 at para 160 (SC), the court

said: “A solicitor clearly has a duty to warn his or her client of the potential repercussions of a particular course of action”.

9. Ormindale (SC), supra note 4 at para 35.

10.John Powell et al, eds, Jackson & Powell on Professional Liability, 8th ed (London: Sweet & Maxwell, 2017) at 837, s 11-162.

11.[1896] AC 409 at 426 (per Lord Herschell), 431 (per Lord Shand).

12.(1895), 33 SLR 539 at 542.

13. Central & Eastern Trust Co v Rafuse, [1986] 2 SCR 147 [Rafuse].

14. Ibid at 208.

15.See Brian G Morgan, “Professional Negligence”, 1989 Ontario Tax Conference, Tab 11 at 5; Baniuk v Filliter, 2010 NBQB 272 at para 114.

16. Rafuse, supra note 13 at 208.

17.1982 CarswellNS 365 at para 12 (SCTD).

18.In Imbree v McNeilly, [2008] HCA 40 at para 69, the majority referred to the standard of care expected of a specialist as being “more particular than” than of a generalist.

19.See Wilson v Swanson, [1956] SCR 804 at para 43, followed in ter Neuzen v Korn, [1995] 3 SCR 674 at para 46.

20. Goddard Elliott (a Firm) v Fritsch, [2012] VSC 87 at para 417.

21. Ibid

22.See in Montague Mining Pty Ltd v Gore, [1998] FCA 1334 at 12 (unreported), per Wilcox J (“[w]here a client engages a solicitor who professes special expertise in a particular field of law to do work within that field, the relevant standard of care is that of the ordinary skilled solicitor exercising and professing special expertise in that field”). Wilcox J’s judgment was reversed for other reasons but not in relation to that passage: [2000] FCA 1214 (FCFCA). Wilcox J’s statement of principle was cited with apparent approval in a per curiam decision, Wakim v McNallyat, [2002] FCAFC 208 at para 43. The same rule applies to accountants: Metzke v Sali, [2010] VSCA 267 at para 32; Leda Pty Ltd v Weerden, [2006] NSWSC 125 at paras 45–46.

23. Re Martinazzo and Federal Commissioner of Taxation, [2009] AATA 61 at para 68; Symond v Gadens Lawyers Sydney Pty Ltd, [2013] NSWSC 955 at

para 188 (“[t]he standard expected of Gadens was that of an ordinary skilled solicitor exercising and professing to have a special skill in taxation law”).

24.For a comprehensive discussion, see Robert P Rothman, “Tax Opinion Practice” (2011) 64 Tax Law 301.

25. Perth Services Ltd v Deloitte Haskins & Sells et al, 2005 MBCA 14; Perth Services Ltd v Deloitte Haskins & Sells et al

26.2004 MBQB 176 at paras 24–25.

27.2005 MBQB 287.

28. Credit Lyonnais SA v Russell Jones & Walker (A Firm), [2002] EWHC 1310 (Ch).

29. Altus Group (UK) Limited v Baker Tilly Tax and Advisory Services LLP, Baker Tilly Tax and Accounting Limited, [2015] EWHC 12 at para 69 (Ch).

30. Mason v Mills & Reeve (A Firm), [2012] EWCA Civ 498 at para 43.

31. Minkin v Lesley Landsberg (Practising as Barnet Family Law), [2015] EWCA Civ 1152 at para 38 [emphasis added].

32. Gilbert v Shanahan, [1998] 3 NZLR 528 (CA) at 537.

33.See Zakka v Elias, [2013] NSWCA 119 at para 68: In AJH Lawyers Pty Ltd v. Hamo [2010] VSC 225 Beach J held that there was a duty on solicitors to give “holistic” advice in and around the client’s retainer, unless the retainer was specifically limited to avoid the need for such advice. In “Lawyers Professional Responsibility”, 5th Edn, Dal Pont observes (at [5.65]) that lawyers retained to carry out a transaction that is improvident from the client’s point of view should consider “whether the client needs to be warned against pursuing the transaction, or at least advised explicitly of the risks to which he or she may be exposed”. In the present case, I consider that the facts, as found by her Honour, gave rise to a duty on Ms Rahe’s part of that kind and that her Honour erred in not so finding. [emphasis added]

34. Supra note 4.

HOW TO USE PRESENTATIONS TO STAND OUT AND GET MORE CLIENTS FOR YOUR FIRM

By Brenda Benham

Would you like your audience to see you as the expert you are? Would you like presentations to bring new clients to your firm?

If you answered “yes” to either of those questions, you want to make sure that your presentations include slides that are supportive, effective and visible.

For most of my legal career, every presentation I gave included a slide deck with slides that contained all the important information I wanted to share. My slides were nothing but enormous amounts of text. In 2014, I learned the brain science of how people learn and remember. Putting all the information on my slides was completely counterproductive to my goals of sharing information that people would retain. My audiences were completely disengaged.

To keep an audience engaged, to give presentations that are memorable, and to have the audience thinking of your firm when they need help, you must have supportive, effective and visible slides.

SUPPORTIVE SLIDES

The purpose of your slides is to support you as the presenter and enhance your presentation, not distract from it. There are several ways that slides can become distracting.

Slides as Speaking Notes

Some presenters feel they need to use their slides as speaking notes. They are afraid that if what they are saying is not on their slides, they will not remember what to say.

There are several reasons this is counterproductive.

First, if you are doing an in-person presentation and reading what is on the slide, you may well have your back to the audience. You definitely will not be connecting with your audience if you are not looking at them.

Second, your audience may well be reading ahead. If you have complete sentences on your slides that include everything you are saying, your audience will be reading it, likely faster than you are saying it. Once you audience is reading, they are not listening to you.

Do you remember reading bedtime stories to your children or having bedtime stories read to you? We read stories to children to help them fall asleep. You do not want your audience falling asleep as you read to them.

Slides as Handouts

Other presenters think their audience needs their key points on their slides so audience members will remember those points. Essentially these presenters are using their slides as handouts.

That is also counterproductive.

Handouts may well be necessary, but your slides are not there to be your handouts.

Bullets have the same problem of your audience reading ahead. Your audience will almost certainly read faster than you will discuss the bullet points on your slide. If that is happening, they will be reading and thinking about a later point than the one you are discussing. Once that happens, your audience is unlikely to be listening to you.

In addition, if what you are saying is not related to the bullets on your screen, the brains of your audience members will be trying to figure out what is going on, what are the differences, and why there are differences between what you are saying and what is on the slides. If your audience’s brains are doing that, they are not taking in your important information.

Brain Science: Overloading Limited Working Memory

John Sweller’s “cognitive load theory”1 talks about the limits on working memory.

Working memory is where everything goes in your brain in whatever way it comes in, whether through your eyes, your ears, your nose, etc. Working memory is a limited resource and you do not want to fill it up with irrelevant stuff. Sweller talks about limiting the how you are presenting so that there is room in your audience’s limited working memory for the what you are presenting. The what you are presenting is the important information you are there to share.

If information does not make it into working memory, it will never end up in long-term memory.

If you have too much text or too many bullets on screen that may well overwhelm your audience’s limited working memory. If that happens, your audience will not take in what you are saying and will not remember your key information.

Tool: Put Important Information in a Handout

Often your audience needs detailed information, particularly if you are talking to your peers. That does not mean your key information should be on your slides. Instead, you have two options.

One is to put your important information in a handout that you hand out after you speak. If that is what you decide to do, let your audience know near the beginning of your presentation that this detailed handout will be coming after your finish your presentation.

The second option is to create a fillable handout that has blanks for your audience to fill in with some or all of your important information while you speak. This will engage your audience, particularly if they are kinesthetic learners.2 You can always provide the filled-in handout after your presentation.

EFFECTIVE SLIDES

The second question is whether your slides are effective. As indicated above, the purpose of your slides is to support your presentation. If you overwhelm your audience with text and data, your slides will not be effective. This is counterproductive.

Brain Science: Too Much Text or Data and No Images

Richard E. Mayer’s book, MultiMedia Learning, 3 sets out 12 principles that enhance learning. His work is based on John Sweller’s “cognitive load theory”, discussed above. The following three principles relate directly to my approach to slides.

Mayer’s “Multimedia Principle” says “people learn better from words and pictures than from words alone”.

His “Modality Principle” says “people learn better from graphics and narrations than from animation and on-screen text”.

His “Redundancy Principle” says “people learn better from graphics and narration than from graphics, narration and on-screen text”.

Put another way, people would remember more if you had just spoken and had an image on the screen. They will remember less if you spoke with no slides, if you did not speak and just provided slides with animation and text, or if you spoke and had slides with images and on-screen text. I recommend slightly more than just an image, since I think it helps to have a title on each slide and it is fine to have up to three very short bullets. This approach works really well and people still remember the key information.

In Real Life

I actually saw this in real life. In January 2016, I was at the office where I used to work at the B.C. Securities Commission. There were a number of us

in a boardroom watching a presentation from Ontario on crowdfunding. The presenter talked about the rules in British Columbia and got the rules completely backwards. He said the crowdfunding exemption in British Columbia could be used only by a group that was not entitled to use that exemption.

At the end of the presentation, I commented to my colleagues on how weird it was to see someone get the law completely backward. All but one of them agreed it was weird. That person said “No, no. He got it right”. We went back and forth a few times and then the person said “I know what happened. I was reading his slide. I didn’t hear a word he said”.

There is no point presenting if your audience does not hear what you are saying.

Tools

Include an image and title on every slide

Your audience will remember more if every slide has an image and title. You need to think about what the best image is to support your presentation. Do not pull images off a search engine, like Google. Many of those images are subject to copyright protection. Instead, use a free image site like Pexels4 or Unsplash.5

Alternatively, you can seek help from an expert.

Include no more than three bullets per slide of one to three words

Your audience will remember more, the less text you have on your slide. However, sometimes you will need to include at least a few, very short bullets. I recommend including no more than three bullets per slide, between one to three words.

Using bullets in this way will help you stay organized without reading your presentation and will provide your audience with guide posts for where you are going.

If you do not need bullets, do not use them. Just an image and title are fine. If you do need them, really cut back on how much text is in each bullet and how many bullets are on each slide.

Have your bullets animated and slide in one by one

Even with just three very short bullets, you do not want all of them on the screen at the beginning. You do not want your audience distracted by later points you will be discussing. You should add animation to your bullets.

I recommend choosing a simple animation like float, wipe or appear. Try out a few and see which one you prefer. Make sure you keep the same animation throughout your slide deck. You do not want to distract your audience by having some bullets float in, others wipe, and still others appear

If you are not familiar with animation and need help, reach out to an expert.

VISIBLE SLIDES

Some people create slides where the text is so small that your audience members cannot see the text at all or really have to squint to see the text. Indeed, you may have heard people apologizing for the fact that the slide is unreadable. There is absolutely no point in putting up an unreadable slide.

Sometimes presenters put graphs on their slides. Extremely simple graphs can be effective in conveying information. However, often graphs have unreadable information.

If graphs have unreadable information or text slanting sideways on the screen, your audience will be desperately trying to read what is included in the graph. Do not force your audience to try to figure out what is on the slide. This is counterproductive.

As above, if audience members are squinting to see the text on your screen or to decipher things on a graph, they will not be listening to you. Slides with text in small fonts will simply distract the audience. The audience will not remember your key information.

The size of the text on your slides matters. It needs to be easily visible to those at the back of the room, when you are presenting in person, and to those with visual challenges, when you are presenting online.

Tool: 15-Step Test

I created this 15-step test so you can check if the text on your slides is big enough.

To do this test, pick the slide that has the most text on it. Walk back from your screen at least 15 steps then turn around and face the slide. Can you read the text easily or not? If not, you need to increase the font size until it is easily readable and likely also remove some of the text from your slide.

If you take the information from this article and apply it to the slides in your next presentation, you will give a much better presentation because you will be using the brain science of how people learn and remember. Presentations that are memorable and engaging lead to people thinking of your firm when they need legal support.

ENDNOTES

1.John Sweller, “Cognitive Load During Problem Solving: Effects on Learning (1988) 12:2 Cognitive Science 257–85.

2.Houghton University, “Kinesthetic Learning Style”, online: <www.houghton.edu/current-students/center -for-student-success/academic-support-and-accessi

bility-services/study-advisement/general-studyinformation/kinesthetic-learning-style/>.

3.Richard E Mayer, Multimedia Learning, 2nd ed (2009).

4.Online: <www.pexels.com>.

5.Online: <www.unsplash.com>.

THE WINE COLUMN

By Paul Daykin, K.C., and Bruno De Vita, K.C.*

WINE PAIRINGS (PART 2): ETHNIC FOOD

In the May 2022 issue of the Advocate, we wrote about the “marriage of food and wine” and offered examples of wine pairings that work, as well as some that do not. This was a relatively easy task, since most of us—whether we are wine enthusiasts or not—won’t have too much trouble choosing a wine at our favourite French bistro or Italian trattoria.

In this column, we tackle the more challenging task of identifying wines that go well with a few different kinds of ethnic food. We chose this topic for a few reasons.

First, we recognize that in British Columbia we are blessed with a wonderful ethnic diversity, and all the food that goes with it. It was no surprise when the Michelin Guide, in October 2022, released its first review of Vancouver restaurants and recognized many Asian and South Asian restaurants in the regular and “Bib Gourmand” categories.1

Second, we often get questions from our friends and readers on this topic. While the most frequent question we get is “What’s a good red wine under $25?”, a close second is “What wine goes best with Chinese food?”

Third, it gave us a great opportunity to try some wines that fall outside the well-known categories, which we like to refer to as “the B’s”: Burgundy, Bordeaux, Barolo, Barbaresco, Brunello and so on.

Finally, we got to eat some delicious food.

For this article, we tackled four kinds of ethnic food that are well represented in local cuisine: Indian, Mexican, Japanese and Chinese. In each category, we found wines that would suit three different budgets: that of the

* Paul and Bruno are guest authors of the Wine Column, providing relief to Michael Welsh, K.C. The two have been tasting wine since they were about ten years old, when homemade wine was poured from big jugs into tiny tumblers at the De Vita dinner table. The topic for this article was suggested by Paul’s wife, Rosie.

“student”, the “associate” and the “partner”. We apologize for the economic assumptions imbedded in this model.

Before we begin, we should mention the obvious: beer goes very well with all of these foods. But as this is a wine column and not a beer column, we chose not to burrow down that particular rabbit hole. The other thing worth mentioning is that one should never forget Rosé! Rosé goes well with all these foods, but that, we thought, would merit a column of its own.

INDIAN FOOD

When Vikram Vij works the room, making sure his guests are enjoying their meals, he never uses the overworked phrase “How are the first few bites?” Rather, he asks, “How are the flavours?” In doing so, he captures the essence of Indian cuisine, in which the food is like a canvas on which the flavours are painted.

The rich sauces and generous use of blended spices that you will find in Indian cuisine—coriander, cardamon, cumin, fenugreek and turmeric, among others—call for wine that is aromatic enough to stand up to the big flavours, but also cold and crisp enough to give relief to the heat. What you are looking for here is a wine that is served cold, has lower alcohol and has some sweetness. For these reasons, Riesling is the obvious choice.

Many people do not choose Riesling because they think it is too sweet. Frankly, this is just not the case. For sure, there are Rieslings that have high residual sugar, but Riesling comes in a variety of styles, and there are excellent dry and off-dry examples, including those offered here, that will not offend those who are repelled by the idea of a wine that is not bone-dry. We think you will enjoy any of the following wines while digging into your favorite curry, Vindaloo or Tikka Masala, mopping up the sauces with naan.

The student: Upper Bench 2021 Riesling, $26, direct from the winery or at New District Wines and BC Liquor Stores. This is the follow-up vintage of the wine that won “Wine of the Year” at the Lieutenant Governor’s Wine Awards. This is a refreshing, dry Riesling from the Naramata Bench in the Okanagan that features grapefruit and green apple on the nose and stone fruit and citrus flavours on the palate. It pairs well with any spicy food and offers excellent value.

The associate: Phantom Creek Estate Riesling 2020, $35, direct from the winery. One can easily detect the influence of Phantom Creek’s consulting winemaker, Olivier Humbrecht, when quaffing this tasty offering from the Okanagan Valley’s Phantom Creek Estates. Humbrecht is the owner and winemaker of the renowned Alsatian winery Domaine ZindHumbrecht, one of the world’s leading producers of Riesling and Pinot Gris.

The 2020 Riesling is Alsatian in style, with fragrant aromatics and flavours of pear and apple. The 19 months of aging in oak fudres lend a slight note of vanilla that frames the wine but does not overwhelm it. Its vibrant flavour and bright acidity make it an excellent accompaniment to the rich flavours and creaminess of many Indian dishes.

The partner: Domaine Ostertag Muenchberg Riesling, $85, BC liquor specialty stores. This Riesling comes from the flagship Muenchberg Grand Cru vineyard in the Alsace region of France, and was crafted by a biodynamic farming pioneer, André Ostertag. The wine has a lovely golden colour in the glass and expressive notes of pineapple and peach and just a hint of diesel. This is a big, flavourful wine that would overwhelm some foods but was just perfect with the chicken curry with which we paired it.

MEXICAN FOOD

One might think of Mexican food as an ingenious way to serve leftovers— take rice, beans and tomato-based sauce, combine into a variety of forms with your favourite protein and wrap it in a taco or tortilla and serve with a selection of accompaniments such as cheese, salsa, guacamole and hot sauce. What makes Mexican cuisine stand out, though, is the use of chilli peppers—which, like grapes, come in a number of varieties: poblano (or ancho), jalapeño (chipotle), pasilla, guajillo, serrano and habanero. Like Indian food, the flavours are big, the sauces are rich and often spicy, and the aromas are pronounced.

Lighter fare like fish or chicken tacos calls for a crisp and light white wine, while savoury dishes like enchiladas work well with a rustic red wine. For white, we recommend Albariño or Vinho Verde, which are refreshing wines known for their zippy acidity. For reds, we like Tempranillo, with its notes of blackberry, plums and tomatoes and its moderate tannins, or Garnacha, which has similar characteristics but is often more “earthy”.

The student: Rias Baixas Rosal Albariño – Adegas Valminor Davila 2021, $24, BC Liquor Stores. Albariño is a varietal grown in both Spain and Portugal, but it is growing in popularity in parts of the New World. In Portugal, it is called Alvarinho. It is known for its stone fruit flavour profile and its refreshing acidity. The 2021 Adegas Valminor Davila from the Rias Baixas wine region in Spain is made from a blend of eighty per cent Albariño and twenty per cent Loureiro and Treixadura. It has fragrant and enticing aromas of flowers and melon and a layered texture that displays flavours of peach and apricot. The fruit is quite luscious, but the acidity gives it a satisfying and refreshing finish that makes it ideal for spicy Mexican food. Local wine writer Neal McLennan (a former lawyer) once com-

mented that he has never had an Albariño he did not enjoy—a lot. Our experience has not been any different. This Spanish gem is a wine that ranks high on the enjoyment scale.

For an affordable red wine in this category, we recommend you try the 2020 Laya, from Gil Family Estates, at $18 in BC Liquor Stores. It is a blend of seventy per cent Garnacha and thirty per cent Monastrelle from the Almansa appellation in Spain. This is a big wine for a small price. It has a deep purple hue. We detected prunes, blackberries and cocoa on the nose. It is very fruit-forward, with a lingering finish of black pepper and chocolate. This wine will appeal to those fond of the wines from the Gigondas and Vacqueyras regions of southern France.

The associate: Bodegas Muga Reserva 2018, $32, BC Liquor Stores

From an excellent producer in the Rioja Alta region of Spain comes this juicy and tasty red wine made from a blend of seventy per cent Tempranillo and thirty per cent Garnacha, Mazuelo and Graciano. The wine is a brilliant ruby red and has a youthful exuberance both in aroma and in flavour. It opens up with a blast of blackberry and vanilla and then throws off a midpalate delight of licorice and a hint of chocolate. This is a very good wine that will probably benefit from a year or two of cellaring but is drinking beautifully now. Its fine tannins, abundant fruit and easy drinkability make it a perfect accompaniment to spicy meat dishes.

The partner: 2013 Dalmau, Marques de Murrietta, $115, Everything Wine. This is a limited edition offering from a single vineyard—the Canajas property in Rioja. The 2013 vintage, which we bought at a wine tasting of Murrieta wines a few years back, is a blend of seventy-one per cent Tempranillo, fifteen per cent Cabernet Sauvignon and fourteen per cent Graciano. It has an inky colour and notes of blackberries, stewed prunes and forest floor. This is a luxurious wine with layers of flavour that linger in your mouth. Although this bottle was the last of the case we bought, we felt as though it was just beginning to round into form. We drank it with Ina Garten’s recipe for chicken enchiladas, with which it went perfectly.

JAPANESE FOOD

Chablis is the obvious choice here. To appreciate the delicacy of sushi and other Japanese seafood, one needs a wine that is lean and not overwhelming. Although Chablis is made from one hundred per cent Chardonnay, it lacks the unctuous fruit-forwardness of white Burgundy. Rather, Chablis at its best is more austere, with a strong minerality, very little oak and a touch of salinity. The vineyards of Chablis sit atop an ancient sea bed where middens of oyster shells may still be found, and it is thought that this imparts

a coastal influence on the wine. This makes it perfect with most Japanese food. The acidity tackles the fat in the fish, and the minerality balances the salt in the soya and other sauces.

Since it is hard to find decent Chablis at a reasonable price, we suggest that another white wine that goes well with Japanese food is Pinot Gris, which with its hints of apple and citrus nicely accompanies the umami characteristics of Japanese broths and sauces.

The student: Haywire Pinot Gris, $25, BC Liquor Stores and New District Wines. For some reason, whenever we drink Okanagan Pinot Gris, we feel like we are tasting the fruit from the trees that used to grow on the land that is now occupied by vineyards. So it is with this fruit-forward effort from Okanagan Crush Pad, with its notes of pear, apple and a little lemon. This wine will go nicely with any seafood dish, and has more than enough spine to stand up to soya sauce and wasabi.

The associate: Phantom Creek Estate Pinot Gris 2020, $28, BC Liquor Stores. Not unlike the Phantom Creek Riesling, the 2020 Pinot Gris has Alsace written all over it. Golden in colour, this wine is a honey-scented delight with a slight creamy texture that balances beautifully with the wine’s crisp acidity. Abundant in its fruit, the flavours of this Pinot Gris are rich and luscious. In our estimation, it is quite simply one of the best Pinot Gris you can find in British Columbia.

The partner: Jean-Marc Brocard Chablis Premier Cru Montée de Tonnerre 2019, $76, BC liquor specialty stores. Brocard makes organic wines from four Premier Cru sites and three Grand Cru vineyards in Chablis, as well as a more affordable Petite Chablis. This is our favorite of the Premier Crus. We found apricot, orange rind, hay bale and a whiff of sea shore, followed by lemon and apple notes in the mouth, with a pleasant salinity at the back end. This is a perfectly balanced effort—clean, crisp and pleasant. Like a gracious hostess introducing her guests, it greets the food and then lets it shine.

CHINESE FOOD

Pairing wine with Chinese food is a rather daunting task because the first question is “What kind of Chinese food?” Dim sum? Spicy dishes from Hunan or Szechuan? Stir-fried meats and vegetables? Noodle dishes?

Many white wines will go well with Chinese food. One good choice is Chenin Blanc. Or if you prefer a bolder statement, you can opt for a big aromatic white wine from the Southern Rhône, like a white Chateauneuf-duPape, with its captivating blend of Marsanne, Roussanne and Viognier. For a red wine, we suggest a lighter red like a Beaujolais (made from the Gamay grape) or a Pinot Noir.

But do not forget Champagne. When you are seated at Mott 32 in Vancouver or Mister Chow in Beverly Hills, one of the first things that happens is the arrival of the Champagne cart. This is no accident. There are many reasons for this. First, it is celebratory. Second, it amplifies the size of the bill. But third, and most important, Champagne goes so well with Chinese food. Accordingly, we have included one of our favorite Champagnes in this section.

The student: Tania and Vincent Carême Terre Brûlée Chenin Blanc 2020, $19, BC Liquor Stores. Vincent Carême is a prominent winemaker from the Loire Valley in France, which is known for its Chenin Blanc. His wife, Tania, is from South Africa, also known for its excellent Chenin Blanc wines. Together, the couple manage a vineyard in the Swartland area of South Africa where they produce an excellent and refined Chenin Blanc from 40-year-old vines. This wine is one of the best white wine values in British Columbia. It shows off some lush stone fruit and apple, along with a touch of creaminess that gives it a lovely mouthfeel. At the same time, it is framed by a good level of acidity that provides balance and structure.

The associate: Louis Jadot Beaujolais Villages Combe Aux Jacques 2020, $27, BC Liquor Stores . This is a medium-bodied, easy-drinking Gamay, with black cherry, pepper and a little hint of licorice. We served this with Moo Shu Pork and it complemented the hoisin sauce nicely.

The partner: Billecart-Salmon Brut Rosé Champagne, $125, BC Liquor Stores. What does this go well with? Anything. Whether you are enjoying this as an apéritif or with the first few dumplings that arrive, you will love this. It has a nice pale pink hue in the glass and enticing bubbles, but it really comes to life in your mouth as it charms you with its creamy, elegant texture. This is like a lemon-raspberry tart in a glass. The challenge of this Champagne is to try to avoid ordering a second bottle.

ENDNOTE

1.Of only eight Vancouver restaurants that were awarded a Michelin star, three were Asian: Kissa Tanto, Masayoshi and Quan Ju De Beijing Duck House. In the Bib Gourmand category, seven out of

twelve were ethnic restaurants: Lunch Lady, Vij’s, Chupito, Phnom Penh, Kim Kao Son, Anh & Chi and Little Bird.

BC LAW INSTITUTE

By Tejas Madhur*

REFORMING LAW REFORM

As a law reform agency, the British Columbia Law Institute (“BCLI”) has simple but lofty goals: modernize the law, increase access to justice, develop innovative solutions. Our work is often focused outwardly on reforming legislation. After 25 years of law reform in British Columbia, we are now asking ourselves: How do we reform law reform itself? What is our role in reforming law reform?

At its essence, law reform identifies where the law is not keeping up with current societal needs. These needs can change over time, as society changes—a case in point being emerging issues around the role of technology and how the law evolves to address it. Or they can happen urgently—a clear example being the COVID-19 pandemic, where both society and laws adjusted to rapidly changing circumstances.

In both instances, there is a need for thoughtful and thorough analysis of how laws are responding or not responding to different circumstances. However, traditional black letter law reform, and models for these reforms that entail interdisciplinary expert identification and review of law reform options, may make it challenging to pivot and respond quickly.

The law may fail to address an issue that did not exist before. Rapid technological innovations, such as the use of artificial intelligence (“AI”), for example, have introduced new issues that the law does not currently address. Law reform can play an important role in identifying these gaps and analyzing what kind of legal solutions are needed.1 BCLI is currently undertaking a project on Artificial Intelligence and Civil Liability. The purpose of this project is to determine how tort law needs to adapt to deal with harm to persons and property caused by autonomous AI systems. The

*Tejas Madhur is the chair of the board of BCLI.

threshold question the project will address is: Who is, or should be, liable for choices made by intelligent machines operating autonomously?

Sometimes what is old becomes new again. The existence of Indigenous legal orders is not new, but the expectation/requirement to recognize those longstanding legal orders is a recent development. British Columbia’s Declaration on the Rights of Indigenous Peoples Act requires that B.C. laws be consistent with the United Nations Declaration on the Rights of Indigenous Peoples 2 Through our Reconciling Crown Legal Frameworks Program we will work to ensure that any law reform recommendations we make will reflect this alignment and that our recommendations can be consistent with Indigenous legal frameworks. This requires adapting the core methods we use as law reformers.

As we consider how our law reform work can best address emerging societal issues, we are also considering how our methods help us to accomplish our goals. Many of our law reform projects have been conceived of from a black letter law worldview, where the goal has been to make incremental changes to legislation. Law reform issues are generated from other lawyers, the bench or government. These projects develop law reform recommendations using an expert committee made up predominantly of legal professionals.3 One of our current projects, the Review of Parentage under Part 3 of the Family Law Act, has a black letter law origin.

Increasingly, our work is also utilizing social justice methods, where reform issues come from the community and incorporate community perspectives. The law reform recommendations consider broader legal solutions.4 A key issue is to ensure that we are hearing the right voices, keeping in mind that the law is about people and regulating our interactions with each other. Lawyers bring important knowledge to law reform projects. But the public experience the law in their everyday lives. The social justice method sees the public as key to developing effective law reform solutions. This approach engages people’s lived experience to ensure that the project can address the needs of the public who interact with the law and strengthen its intended impact.5

In many cases, vulnerable communities find their voices are not heard, and law reform is an opportunity to ensure that these perspectives are included and empowered.6 For example, our project Engaging People Living with Dementia in Decision-Making, led by the Canadian Centre for Elder Law, is using a Dementia Advisory Council to inform all parts of the project in the lived experiences and needs of people living with dementia.

Increasingly, our connections with our fellow law reformers are essential to share ideas and best practices.7 BCLI contributes to both the Federation

of Law Reform Agencies of Canada and the Uniform Law Conference of Canada, which both operate at the national level. Further renewal at the national level is underway as the Law Commission of Canada is being reconstituted by the federal government.

Developing responsive solutions to societal issues will entail both black letter and social justice methods. Merging these methods in our work will ensure innovation in our approaches to our law reform projects.

NEW PROJECT AIMS TO RENOVATE THE PUBLIC HEARING

Building on our Study Paper on Public Hearings: An Examination of Public Participation in the Adoption of Local Bylaws on Land Use and Planning (April 2022), BCLI has launched a new project that seeks to reform British Columbia’s legislation on public hearings.

For over a century, public hearings have been a key component of British Columbia’s legal framework for regulation of land use. During most of that time, public hearings have been viewed as one of the cornerstones of local democracy. But recently some questions have arisen about whether they deserve that title. Observers have noted that public hearings often end up engaging only a small, unrepresentative segment of the public. They can also drive up costs, lead to wasted time and result in low satisfaction from participants. Further, their highly formal and legalistic nature has often frustrated local governments.

The Renovate the Public Hearing Project: Pre-Development Public Engagement & Legal Reforms to Support Housing Supply asks whether there is a better way to provide for public participation, support meaningful democratic engagement, and improve the quality and efficiency of local land-use decisions.

An important component of the project will be to consider how reforms to the law on public hearings can be aligned with Indigenous governance. Accordingly, this project will identify ways to integrate Indigenous considerations into law-reform approaches for public hearings so that any recommended legislative changes can function in a legally plural context. The project has been designed to support a Reconciliation and Community Listening Exploration Series, which will allow BCLI to engage with these issues directly and to weave input from that engagement to the project’s expert committee.

This project is being carried out in conjunction with the Simon Fraser University Wosk Centre for Dialogue. Over the course of the project, the Wosk Centre plans to engage with impacted groups in a variety of ways, including through interviews, workshops and events.

Funding for this project has been provided by the Canada Mortgage and Housing Corporation, as part of its Housing Supply Challenge “Getting Started” Round. The project is slated to run until March 31, 2024. Visit <www.bcli.org> for regular updates on the project.

ENDNOTES

1. Marcus Moore, “The Past, Present, and Future of Law Reform in Canada” (2018) 6:2 Theory & Practice Legislation 225 at 251–59.

2. United Nations Declaration on the Rights of Indigenous Peoples, GA Res, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2007).

3. Moore, supra note 1 at 251–59; Roderick A MacDonald, “Law Reform for Dummies (3rd Edition)” (2014) 51:3 Osgoode Hall LJ 859 at 872–76.

4. Nathalie Des Rosiers, “In Memoriam: La Commission du Droit du Canada/The Law Commission of

Canada, 1997-2006” (2007) 22:2 Can JL & Soc 145 at 171–73 [Des Rosiers, “In Memoriam”]; Moore, supra note 1 at 259–60; MacDonald, supra note 3 at 865–69, 879–83.

5. Des Rosiers, “In Memoriam”, supra note 4 at 166, 177–73; Nathalie Des Rosiers, “Public Inquiries and Law Reform Institutions: Truth Finding and Truth Producing” (2016) 28:2 Can J Women & L 374 at 379–80; MacDonald, supra note 3 at 865–69.

6. Ibid.

7. Moore, supra note 1 at 247.

THE PAISLEY IRREGULARS ESSAY COMPETITION IN NEGLIGENCE LAW

CALL FOR SUBMISSIONS

SUBMISSION DEADLINE: JUNE 26, 2023

The Paisley Irregulars Essay Competition in Negligence Law was established in 2021 in recognition of the Honourable Martin R. Taylor, K.C., a leader in the exposition of the law and lore of Donoghue v. Stevenson, and in events commemorating its milestone anniversaries.

The Competition is open to Canadian law students and articled students. Papers submitted for academic credit at law school are eligible (which may be revised for submission to the competition). The Paisley Irregulars fund a cash prize of $1,000 to the winning author whose work may be published in the Advocate Papers will be judged by a committee designated by the Paisley Irregulars.

The topic for this year is:

Donoghue v. Stevenson at 90: a review of the global influence of Donoghue v. Stevenson in the period 1932–2022.

Authors may take either a temporal view (reference to the case over time) or a spatial view (reference to this U.K. case in nonU.K. jurisdictions). Authors may focus on manageable discrete jurisdictions (e.g., Australia (federal and state), Caribbean region, European civil law countries, etc.).

The official Competition Rules, details about Mr. Taylor and the Paisley Irregulars and other interesting and useful materials about Donoghue v. Stevenson are available at

<www.PaisleyIrregulars.ca>

LAP NOTES

By Derek LaCroix, K.C.*

“A hundred times a day I remind myself that my inner and outer life depends on the labors of other men, living and dead, and that I must exert myself in order to give in the measure as I have received and am still receiving.”

– Albert Einstein

Gratitude. What are we talking about? Gratitude is more than being thankful, more than appreciating someone or something, more than a feeling and more than an idea. Gratitude includes all those and more. It also includes action. It is a stance or predisposition to move in the world in an open, kind and generous way.

The Concise Oxford English Dictionary defines gratitude as “readiness to show appreciation for and to return kindness”.

The Lawyers Assistance Program of British Columbia (“LAPBC”) promotes and supports lawyers helping lawyers. Lawyers helping lawyers is a concept based on the idea of gratitude. Others have helped us, and in return we wish to pass that on and help yet others. The act of helping, done with gratitude, is its own reward. We help without expectation of anything from the person we are helping. In fact, the privilege of being asked to help is the reward.

Kindness is at the core of gratitude. The core idea behind lawyers helping lawyers is that we will be kind to each other, we will appreciate each other and we will show that kindness and appreciation in some real, tangible way.

* Derek LaCroix, K.C., is the executive director of the Lawyers Assistance Program of British Columbia.

We live in an affluent area of the world, in a peaceful place, and as lawyers we have the blessings of education and a privileged position. We have a great deal to be grateful for. Individually, we have each been helped and treated kindly at some time by someone.

I invite you to reflect on those people, those occasions and those privileges. Then ask: “How can I help someone? What kindness can I do for someone?” Try that as an experiment for a day, or two, or three. As with any experiment, examine the results.

Try another experiment. Pick a day and go to work holding at all times throughout the day the thought that you are grateful to be able to do the work, grateful for everyone you come in contact with, your staff, your clients, your partners, other lawyers and judges, and act accordingly—treat them with kindness. Again, examine the results. How are you feeling? How was work that day?

I am privileged to work and meet with people who act generously and kindly. I know our profession to be full of such people. We need to more consciously, consistently and actively act in this way. We will all be the beneficiaries as the practice of law will be more fulfilling and the health and well-being of our members will be positively affected.

I know thanks is not gratitude, but I do want to take this opportunity to thank the LAPBC board of directors, the members of the profession for the funding you provide, the Law Society for approving and collecting that funding, the Advocate for generously providing us advertising space and for printing our articles, the CBABC for their continued support, the Lawyers’ Benevolent Fund for helping us help lawyers in distress, the various county and local bar communities for inviting us to attend and for supporting us, LAPBC volunteers for being willing and available to help and share, and all of you who have so generously supported LAPBC—and all the wonderful people I get to meet and who share your lives with me. Thanks. I will endeavour to act with gratitude and show appreciation for and repay the tremendous amount shared with me.

We at LAPBC are here to help. We provide a variety of services and are strictly confidential. Our counsellors are trained counsellors who have practised law previously. You can call us at 604-685-2171 or visit our website at <www.lapbc.com>.

The Lawyers Assistance Program of British Columbia is an independent organization of members of the legal community (lawyers, judges families and support staff). We provide peer support and referral services to help people deal with personal problems, including alcohol and drug dependence, stress, anxiety and depression. We are volunteers and staff committed to providing confidential, compassionate and knowledgeable outreach, support and education. We seek to foster collegiality among our peers and to promote health and well-being in our community. You can reach LAPBC by telephone at 604-6852171, toll-free at 1-888-685-2171 or via the LAPBC website: <www.lapbc.com>.

A VIEW FROM THE CENTRE

By Vasilis F.L. Pappas*

THE PERILS OF MULTI-TIER DISPUTE RESOLUTION CLAUSES

In recent years, multi-tier dispute resolution clauses have become popular among both counsel and clients in large commercial agreements, particularly where parties have agreed to resolve disputes by arbitration.

These clauses provide that when a dispute arises, the parties must undertake certain mandatory steps prior to commencing arbitration proceedings in an attempt to settle the dispute amicably. These steps normally include negotiation between senior management representatives and/or the use of mediation. These clauses have become widespread across a variety of industries, particularly in complex construction contracts, joint venture agreements and other complex agreements where longer-term relationships are contemplated such as in the energy and mining industries.

Such clauses tend to be popular with clients who are keen on any process with the potential to minimize the likelihood of full-blown arbitration proceedings (and related expenditures). And while they may have some advantages, multi-tier dispute resolution clauses also pose a number of serious drawbacks and risks that are unfamiliar to many counsel. They are also frequently abused by parties seeking to avoid, delay or render more costly the resolution of disputes.

This article examines the benefits and risks associated with multi-tier dispute resolution clauses, while offering practical suggestions on how those risks can be minimized.

What Is a Multi-Tier Dispute Resolution Clause?

Multi-tier dispute resolution clauses require parties to undertake certain

* Vasilis Pappas is head of Bennett Jones’s Arbitration, International Arbitration and Investor-State Arbitration Practice Groups. He is a recognized leader in the fields of domestic and international arbitration, and has represented companies all over the world in complex disputes in a diverse range of sectors, with particular expertise in construction disputes.

mandatory steps in an effort to settle a dispute prior to commencing formal legal proceedings. While they can be used in clauses that contemplate the resolution of disputes by way of either litigation or arbitration, they are most frequently used in agreements that contemplate arbitration.

In its simplest form, a multi-tier clause will require parties to engage in a single step prior to commencing arbitration, such as mandatory negotiations among party representatives for a defined period of time before either party can resort to arbitration. In its more complex forms, a multi-tier clause may require parties to undertake multiple mandatory steps prior to commencing arbitration, such as negotiation by lower-level representatives, followed by negotiation by higher-level representatives, followed by formal mediation or conciliation proceedings, all within defined periods of time. By including a multi-tier clause in a contract, the parties signal that efforts should be made to settle a dispute prior to arbitration, and that arbitration will be sought only as a last resort.

Benefits of Multi-Tier Clauses

There are a number of potential benefits to multi-tier dispute resolution clauses, and it is easy to see why they are often so popular with clients. For instance:

•they provide the parties with a contractually mandated opportunity to resolve disputes amicably without incurring the costs associated with arbitration proceedings;

•they provide a contractual cooling-off period during which the parties can reassess and re-evaluate their positions in respect of a dispute, which can often, upon reflection, enable the parties to identify ways to strike a mutually acceptable compromise that might otherwise be left undiscovered if the parties simply marched on to arbitration;

•they can maximize the likelihood of fruitful, beneficial settlement discussions before entering the antagonistic and contentious context of an arbitration proceeding, during which it can often be difficult to set aside emotions and animosity to strike a compromise;

•they can be especially useful in longer-term commercial relationships that the parties wish to avoid souring through contentious arbitration proceedings, by seeking amicable resolutions to disputes that inevitably arise from time to time; and

•they can enable the parties to narrow the issues to be arbitrated by settling those issues in which they find common ground in

advance of arbitration, resulting in a more efficient and cost-effective arbitration involving only those issues the parties are unable to resolve.

Thus, there are undeniable benefits to multi-tier dispute resolution clauses in which the parties are contractually compelled to undertake efforts to settle disputes amicably before proceeding to the antagonistic and contentious forum of arbitration.

Drawbacks to Multi-Tier Clauses

Unfortunately, multi-tier dispute resolution clauses also pose a number of risks that should be given careful consideration. For instance:

•the requirement of pre-arbitration negotiations, where the parties are entrenched in their positions, can lead to an unnecessary waste of time and expense;

•the obligation to conduct pre-arbitration negotiations can impair a party’s ability to secure interim measures in time-sensitive disputes;

•in complex cases, where claims are advanced in arbitration that were not specifically identified and discussed during pre-arbitration negotiations, a tribunal’s jurisdiction over those claims or the admissibility of those claims could be challenged;

•where additional claims are discovered or developed after an arbitration has been commenced, there could be objections to a tribunal’s jurisdiction over those claims or the admissibility of those claims;

•in cases where a respondent in an arbitration advances a counterclaim that was not specifically raised or discussed during prearbitration negotiations, the tribunal’s jurisdiction over those counterclaims or the admissibility of those counterclaims could be challenged;

•where a limitation period is set to expire before the contractually mandated negotiation period, a claim can be time-barred from being advanced altogether; and

•multi-tier clauses are often abused by parties seeking to prevent or delay the commencement of arbitration proceedings by endlessly arguing that the opposing party has not negotiated in good faith during the pre-arbitration negotiations or with the genuine bona fide intent to achieve a settled resolution, has not disclosed sufficient information during the pre-arbitration negotiations to allow

meaningful negotiations to take place, and so on. In some cases, these tactics can delay the commencement of arbitration proceedings. In others, depending on the language in a multi-tier clause, it can prevent the commencement of arbitration proceedings altogether, leaving a dispute in indefinite purgatory.

Perhaps the single greatest risk associated with multi-tier clauses is that a number of courts and arbitral tribunals around the world have held that the pre-arbitral steps in multi-tier clauses constitute jurisdictional conditions precedent to the commencement of arbitration. In other words, they have ruled that if a party fails to strictly comply with the pre-arbitral steps in a multi-tier clause, a tribunal does not have jurisdiction to hear a dispute.1

This can have devastating consequences in circumstances where it is determined that a party has not strictly complied with the pre-arbitration steps in a multi-tier clause. For example, if a claimant commences an arbitration without strictly complying with the pre-arbitral steps in a multi-tier clause, and a limitation period expires while the arbitration is pending, a finding that the pre-arbitral steps constituted jurisdictional conditions precedent can result in the arbitration being dismissed and the claimant being time-barred from pursuing its claims.

Similarly, if a claimant fails to carry out pre-arbitral steps in a multi-tier clause and successfully obtains a final award against the respondent, a determination by a national court after the conclusion of the arbitration that the pre-arbitral steps constituted jurisdictional conditions precedent could result in the award being set aside or not enforced for lack of jurisdiction.

Other national courts and arbitral tribunals have been less extreme in their views regarding the lack of compliance with pre-arbitral steps in multi-tier clauses, holding that while such pre-arbitral steps do not constitute jurisdictional conditions precedent, they do still constitute binding conditions precedent and failure to comply with them in respect of any claims could result in those claims being dismissed by a tribunal for lack of admissibility.2 This could again lead to a situation where a claim becomes timebarred if a limitation period expires while an arbitration is pending, or significant time and resources are wasted arbitrating claims that are ultimately determined to be inadmissible for failure to comply with pre-arbitral steps in multi-tier clauses.

As a result, while multi-tier clauses do have a number of benefits, they do bring with them significant risks.

Practical Suggestions When Negotiating Multi-Tier Clauses

In light of the risks associated with multi-tier clauses, consideration should

be given to whether a multi-tier clause should be included in an arbitration clause at all. Indeed, there is nothing to prevent the parties from seeking to engage in amicable negotiations or mediation prior to—or even after—the commencement of arbitration proceedings, regardless of whether the parties’ dispute resolution clause formally requires them to do so.

However, in the event that a multi-tier clause is desired, it is strongly recommended that the clause specify precisely what the parties’ obligations are, and that efforts be made to avoid ambiguous or generic statements simply requiring that the parties negotiate or undertake mediation proceedings prior to the commencement of arbitration. For example, the clause should specify:

•what event triggers the commencement of the negotiation or mediation period (e.g., a written notice);

•the precise period over which the parties must negotiate or mediate prior to commencing arbitration;

•precisely what party representatives must participate in the negotiations or mediation (e.g., the parties’ chief executive officers);

•precisely how the negotiations or mediation are to take place (e.g., in person, by telephone, by virtual platform or otherwise);

•precisely how many negotiation or mediation sessions are required, if any; and

•what event triggers the termination of the negotiation or mediation requirement (e.g., the expiration of a defined period of time).

Where the parties incorporate negotiation or mediation in a multi-tier clause, they should also avoid using ambiguous statements that require the parties to negotiate or mediate in “good faith”, to avoid either party being able to attempt to pre-empt an arbitration by asserting that, while its counterpart may have participated in negotiation or mediation as required, it did not do so bona fide or in good faith. Likewise, efforts should be made to avoid provisions requiring the disclosure of detailed information relating to disputes during the pre-arbitral steps of a multi-tier dispute resolution process that could enable a party to prevent the commencement of an arbitration by endlessly alleging that insufficient information has been disclosed.

Additionally, where the parties wish to incorporate multiple tiers of prearbitral steps (e.g., negotiation among low-level representatives, followed by negotiation among higher-level representatives, followed by mediation), the transition between the different tiers should be outlined in detail so that the sequence of procedures can be clearly followed and enforced.

Finally, in light of the case law that has emerged from a number of jurisdictions (including, most prominently, the United States), it is advisable that the multi-tier clause state that it is not a binding jurisdictional condition precedent to the commencement of arbitration.

Practical Suggestions Before Initiating Arbitration

When a dispute arises, careful attention should be paid to whether there is a multi-tier clause in the parties’ agreement that will need to be satisfied prior to commencing an arbitration. Failure to do so may result in an objection from the opposing party that the tribunal has not been appropriately vested with jurisdiction or that the claims that have been advanced are inadmissible. These allegations may result in the termination of the arbitration or, at worst, lead to an award being set aside or not enforced after it has been issued.

To minimize this risk, the following steps should be undertaken, to the extent possible:

•when a dispute arises, all limitation periods or time considerations should be immediately reviewed, so that ample time is provided for the pre-arbitral steps to be carried out to avoid any time-bar or prescription issues;

•all steps required by the multi-tier clause should be carefully performed prior to commencing arbitration;

•the commencement, performance and completion of all pre-arbitral steps should be carefully memorialized in writing so that there is a clear documentary record of the parties’ compliance;

•prior to commencing the pre-arbitral steps, the claims that will be advanced in the arbitration should be carefully identified and assessed, with expert assistance if at all possible, to ensure that all claims that will be made in the arbitration form part of the pre-arbitral negotiations or mediation, and written notice should be provided of all such claims prior to commencing the pre-arbitral procedure. This will prevent a counterparty from asserting that specific claims made in the arbitration were not previously raised as required by the multi-tier clause to challenge a tribunal’s jurisdiction or to challenge the admissibility of any claims made. If insufficient time is available to undertake this prior to commencing the pre-arbitral steps, the disputes at issue should be framed as broadly as possible in the party’s notice and during the negotiations or mediation to ensure that all claims raised in the arbitration can be linked back to the pre-arbitration discussions; and

•in the event that the respondent is served with notice of the commencement of the pre-arbitral steps by the claimant and the respondent anticipates that it will advance counterclaims in a future arbitration, the respondent should ensure that all potential counterclaims form part of the pre-arbitral negotiations or mediation and that written notice of them is provided so that the claimant cannot seek to have such counterclaims dismissed for lack of jurisdiction or lack of admissibility. Ideally, the respondent should identify and assess the counterclaims that will be advanced in the arbitration, with expert assistance if at all possible, to ensure that all such counterclaims specifically form part of the pre-arbitral procedure. However, if insufficient time is available, the counterclaims should be framed as broadly as possible to ensure that all counterclaims raised in the arbitration can be linked back to the pre-arbitration discussions.

It is recommended that parties engage experts well in advance of the commencement of the pre-arbitration procedures required by a multi-tier dispute resolution clause, if at all possible. It is not unusual for parties to defer the engagement of experts until after an arbitration has been commenced, and for those experts to identify additional claims or to further develop claims that have been previously advanced. Given the risk that such claims could be dismissed for lack of jurisdiction or lack of admissibility if they are not specifically identified during the pre-arbitration negotiation or mediation phase, it is recommended that those experts be engaged and their views canvassed well in advance of commencing a dispute resolution process under a multi-tier clause so that all potential claims are captured in the pre-arbitration negotiations or mediation.

CONCLUSION

Multi-tier dispute resolution clauses have real potential benefits. However, they should be incorporated in any commercial arrangement with a high degree of caution given the risks that they pose. Generic or ambiguous boiler-plate clauses should be avoided at all costs.

By the same token, when a dispute arises in the face of a multi-tier dispute resolution clause, counsel should carefully ensure that the clause is strictly complied with given the very serious ramifications associated with non-compliance. Pre-arbitral steps in multi-tier clauses cannot be ignored or avoided, and careful attention should be paid to any such clauses.

ENDNOTES

1. Emirates Trading Agency LLC v Prime Mineral Exports Private Limited, [2014] EWHC 2014 (Comm); Kemiron Atlantic Inc v Aguakem International Inc, 290 F 3d 1287 (11th Cir 2002); Red Hook Meat Corp v Bogopa-Columbia, Inc, 31 Misc 3d 814 at 819 (NY Sup Ct 2011); International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another, [2013] SGCA 55; United Group Rail

Services Ltd v Rail Corp New South Wales, [2009] NSWCA 177; Tesseract International Pty Ltd v Pascale Construction Pty Ltd, [2021] SASCA 8.

2. BG Group plc v Republic of Argentina, 572 US 25 (2014); Republic of Sierra Leone v SL Mining Ltd, [2021] EWHC 286 (Comm); BTN v BTP, [2020] SGCA 105; C v D, [2021] HKCFI 1474.

ANNOUNCING THE 2023 ADVOCATE SHORT FICTION COMPETITION

ELIGIBLE CONTRIBUTORS

Any person who is now, or has been, a member of the Law Society of British Columbia (including lawyers, judges and masters) or who is an articled student. Contest judges and the “staff” of the Advocate are ineligible to contribute.

ELIGIBLE FICTION

A fictional work, written in English, to a strict maximum of 2,500 words that deals, if only incidentally, with legal subject matter. The contributor must be the author of the work, which must be entirely original and must not ever have been published or submitted for publication or consideration in a writing competition elsewhere.

DEADLINE FOR SUBMISSIONS

The close of business on Friday, September 1, 2023. Submissions will not be returned, so authors should maintain copies of their work.

FORMAT FOR SUBMISSIONS

Two double-spaced, typed manuscript copies, each with a separate cover sheet bearing the work’s title together with its author’s name, address, daytime telephone number and a word count. The author’s name should not appear anywhere on or in the manuscript itself, as all submissions will be judged anonymously, strictly on literary merit.

ADDRESS FOR SUBMISSIONS

Advocate Short Fiction Competition

c/o D. Michael Bain, K.C., Editor

The Advocate

#1918 – 1030 West Georgia Street

Vancouver, B.C. V6E 2Y3

JUDGES

David Roberts, K.C., Anne Giardini, K.C., and Peter Roberts, K.C. The decisions of the judges as to the literary merit of the contributions shall be final.

PRIZES

First prize:$400 gift certificate at a local book store and publication in the Advocate

Second prize:$250 gift certificate at a local book store and possible publication in the Advocate

Third prize:$100 gift certificate at Zefferelli’s Spaghetti Joint and possible publication in the Advocate

Winning entries will be selected by, at the latest, February 15, 2024. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate.

All submissions, including winning entries, will also be considered for possible publication by the Vancouver Bar Association or an independent publisher in a selection of “legal fictions” to be released at a later date.

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for:

(a) possible selection as winning entries;

(b) possible publication in the Advocate; and

(c) possible inclusion in a selection of submissions to be published in book form;

contributors agree upon submitting their work that the Vancouver Bar Association (publisher of the Advocate), or its licensee, shall have the sole and exclusive right, in Canada and for a period of 15 years, to print, publish and sell their work in such form or forms as the Vancouver Bar Association may in its discretion consider appropriate, such right to revert automatically to all contributors whose works of fiction are not selected as winning entries or for inclusion in the selection of submissions to be published.

Contributors further undertake, if required by the Vancouver Bar Association, to execute both a written assignment in order to confirm the transfer of rights described above to the Vancouver Bar Association and a waiver of the moral rights attached to their work, should their work be selected for publication in the Advocate as a winning entry or for inclusion in a selection of submissions to be published in book form. All proceeds or royalties, if any, from the sales of such a selection will be paid to the benefit of the Vancouver Bar Association, a non-profit organization.

PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Jessica Werb*

MAKING THE CASE FOR OPEN-ACCESS LAW TEXTS

In 2020, months into teaching Tort Law at the Peter A. Allard School of Law, Assistant Professor Samuel Beswick was struck by inspiration. With new judgments being decided every day and freely accessible online, he wanted to break away from the commercially published casebook model and bring the law to his students in an open educational medium.

So, with the help of his J.D. research assistant Maddison Zapach, Sam embarked on a project to create Canada’s first online open-access torts casebook—a format enabling him to innovate both in the selection of civil wrongdoing cases his class would study, and in the way students would access them.

“I wanted to customize my materials, and there were a couple of themes that I wanted to convey through the subject, such as the idea that we’re all supposed to be equal under the law,” Sam explains, noting that when he studied law in his home country of New Zealand, course readings were typically a set of photocopied or printed cases and articles assembled by the professor.

In North America, printed and bound casebooks are the standard even though, says Sam, they are not only cumbersome and costly for students, but also more limiting to teach from. “As a student, I was used to reading a ramshackle compilation of whatever a professor put together, and I quite liked that,” he shares. “An off-the-shelf copy has to be replaced with each new edition, and the copy is not easily customizable if you want to supplement or change up your own teaching.”

* Jessica Werb, on behalf of UBC Internal Communications.

REDEFINING THE CASEBOOK

Rather than revert to spiral-bound printouts, however, Sam built an entirely new kind of casebook—one that is freely available to students and the public in online, PDF and ePub formats, and that is more interactive and flexible than printed materials alone. In the summer of 2021, he published the first edition of Tort Law: Cases and Commentaries on CanLII, available to anyone with an internet connection. All that’s required to update it is to edit a Word document and reupload it—which Sam has already done, publishing the second edition in the summer of 2022.

There is more than just its format setting it apart from other casebooks. For one thing, it is packed with edited cases from around the common law world, rather than only from Canada. “One of the unique things about Commonwealth common law systems is that, when courts encounter new issues, it is normal for judges to look to other jurisdictions to help them find the answers,” Sam notes. So, he pulled in cases from jurisdictions like India and Hong Kong, including some in which judges analyzed judgments from Canada to help them reach a resolution. “I thought it would just be really cool to show the students that that is part of the nature of common law reasoning around the world,” he says.

Another differentiating factor is the way Sam included cases that demonstrate several different areas of the law. “There are some cases in the book that appear in up to seven different sections, dealing with different topics,” he says. “The traditional way is to introduce a new case for each topic. But I saw the students gain a more nuanced understanding of how judgments developed, because they got a much deeper understanding of the cases as they revisited them in different contexts.”

ESTABLISHING NEW LINKS

Sam also supplemented the casebook with quizzes and exam exercises— along with links to podcasts, videos, blogs, news, articles and original judgment transcripts. As an indication of its scope, when printed in full, the first edition came in at a whopping 800 letter-sized pages. “I did send the PDF to the UBC Bookstore to be printed and spiral bound for students to buy at cost, and it was a bit of a mistake to print out the whole thing,” Sam admits, explaining that he encouraged his students to have a physical copy for use during exams. “This year, I am not including the pages that I know I am not going to teach, so it is a much slimmer, and cheaper, volume.”

The response from his students has been overwhelmingly positive. They have given the resource top marks for usability and content. One typical response from an anonymous student survey reads: “I love the coursebook

because it is inexpensive, and there are online and print versions. I also greatly appreciate the quizzes for exam prep.” More than one said it was their favourite textbook.

Sam’s labour of love is also gaining fans from peers further afield. “I have heard from a few professors, including one professor in Australia, who have reached out and said they are planning to use it for their class next year, which is exciting for me,” he says. All the positive feedback has encouraged him to take the project even further in its next iteration.

“My thought for the next edition is to expand the book quite considerably and make it a comparative tort casebook that can be taught in any common law jurisdiction, not just Canada,” he says. While the project has taken some work, it’s also one that he’s excited about sharing with the world. “I think there is just huge potential for innovating university teaching resources,” he says.

UVIC LAW FACULTY NEWS

By Ivan Watson*

The fall 2022 term has proven to be a busy and productive period at UVic Law with a number of new developments for faculty, staff and students.

NEW BOOK ADDRESSES THE CRISIS OF INDIGENOUS OVER-INCARCERATION IN CANADA’S CRIMINAL JUSTICE SYSTEM

Our J.D./J.I.D. Indigenous Law program director, Dr. David Milward, published his third and latest book, titled Reconciliation and Indigenous Justice: A Search for Ways Forward. It was launched on October 20, 2022 during a special event at the Ceremonial Hall of First Peoples House at UVic. The inperson event featured Dr. Milward, along with a panel of respondents that included law Ph.D. candidate Sabrina Lamanna, Dr. John Borrows and Professor Gillian Calder.

The book explores the lasting fallout from the Indian residential school system in Canada and the history of violence and intergenerational trauma, which are key factors contributing to the current crisis of Indigenous overincarceration in the criminal justice system.

“There seems to be a sort of denial, in large segments of Canadian mainstream society, that residential schools were a thing of the past and there is no longer any ongoing responsibility or connection to the present,” explained Dr. Milward. “A large objective of the book is to prove otherwise.”

The book is available for sale in print and digital versions, through Fernwood Publishing.

DR. VAL NAPOLEON ELECTED CHAIR OF INTERNATIONAL URGENT ACTION FUND

Our interim dean, Dr. Val Napoleon, was recently elected chair of the inter-

* Ivan Watson is the communications officer for the UVic Faculty of Law.

national Urgent Action Fund for Women’s Human Rights, after serving for the past three years on the board.

“I’m thrilled—it is an honour to serve with a team of talented and dedicated colleagues,” she said. “The Urgent Action Fund is an organization with incredible reach and impact around the world in support of women and girls. We mobilize people and resources to make an immediate and tangible impact on the safety and security of women and girls around the world, and we defend and advocate for the improvement of women and girl’s rights where the needs are greatest.”

The Urgent Action Fund for Women’s Human Rights is an international organization that partners with women’s movements worldwide to support women’s human rights defenders striving to create cultures of justice, equality and peace and to build the resilience of women’s rights movements globally.

PROFESSOR TED MCDORMAN RETIRES AFTER 37 ACCOMPLISHED YEARS

Recently, Professor Ted McDorman retired after an impressive 37 years of distinguished service with UVic Law.

“Ted has inspired countless future lawyers and has made an impact that extends far beyond his teaching at UVic, leaving behind an outstanding legacy,” said Dr. Napoleon. “On behalf of his colleagues, I wish him all the very best as he transitions into retirement and thank him for his years of dedicated service to the faculty, in particular his mentorship of younger colleagues and his commitment to going above and beyond to bring out the best in his students.”

Professor McDorman started teaching at UVic Law in 1985. His research and teaching interests include public international law, international trade law, international ocean and environmental law and private international law.

His regional focus was southeast Asia and northeast Asia. In the 1990s, Professor McDorman was part of a major oceans project centred in Thailand. He was a frequent participant at ocean law workshops and conferences in Korea, Taiwan and China.

He has been a visiting professor at institutions in Thailand, Sweden, the Netherlands and Canada and has over 140 publications in the areas of ocean law and policy, international trade law and comparative constitutional law.

For 20 years, he served as editor-in-chief of Ocean Development and International Law: The Journal of Marine Affairs. He describes his varied and international career opportunities as a case of “one good thing leading to another.”

From 2002 to 2004, and again from 2011 to 2013, he was the academic-inresidence with the Bureau of Legal Affairs in the Department of Foreign Affairs and International Trade in Ottawa. In the spring of 2007, he was the Fulbright Visiting Chair in Canada-U.S. Relations at the Woodrow Wilson International Center for Scholars in Washington, D.C.

At one point or another during the past 37 years, he has taught many different courses offered by the faculty, including Canadian Constitutional Law for many years, Canadian Environmental Law and Comparative Asian Law. He also held a cross-appointment with the Department of Geography and was an associate of the Centre for Asia-Pacific Initiatives.

In honour of the many contributions Professor McDorman has made to the faculty and to UVic Law students, a new scholarship has been created in his name. The Ted L. McDorman Entrance Scholarship in Law will help new UVic Law students gain their footing as they begin their studies. This scholarship will ensure his commitment to UVic law students will continue to have an impact here in the faculty.

GEIGER LAW PRACTICE SALES

British Columbia and Alberta

SURREY PRACTICE

This busy practice has been in operation for over 50 years. The present practice mix is RE (including Municipal/Expropriation), Corp/Comm, Wills/Estates, Family Law and Litigation. The sellers have excellent reputations individually and as a firm, and are prepared to assist the buyer with a transition plan that ensures client retention.

TRI-CITIES SOLICITOR’S PRACTICE

This long-established practice would suit a firm wishing to expand to the Tri-Cities area, or a local resident wishing to avoid the commute downtown. Real Estate forms 60% of this practice with the remainder evenly split between Wills/Estates and Corporate/Commercial. The practice is presently turning away work so there is lots of room for expansion.

COMOX VALLEY GENERAL PRACTICE

Over 20 years’ in operation with a mix of Real Estate, Wills/Estates, Family Law and Civil Litigation. Solid and consistent billings. Seller is flexible about transition and willing to mentor a junior lawyer with at least five years' experience.

VANCOUVER BOUTIQUE LITIGATION FIRM: New on market

CALGARY MULTI-LAWYER SOLICITOR’S PRACTICE: contact K. Geiger for details.

CENTRAL ALBERTA GENERAL PRACTICE

This practice started 100 years ago and is located in the historic downtown core of this Central Alberta city. Practice mix is about 50% RE, Wills/Estates and Corporate/Commercial; the remainder is Family law/litigation as well as Commercial litigation. Billings are in the high six figures. The practice boasts fantastic staff and the premises have space for a second lawyer.

CENTRAL ALBERTA GENERAL PRACTICE

2 lawyer practice established in 1984. Consistently billing 8-900K. 70% Solicitor’s work and 30% Family/General Litigation. Trained staff and congenial sellers who are willing to mentor incoming lawyer(s).

TRU LAW FACULTY NEWS

By Ryan Gauthier*

AN INTERVIEW WITH LAW LIBRARIAN MICHELLE TERRISS

In February 2022, TRU Law had the great fortune of welcoming Michelle Terriss to the school as one of our law librarians. Michelle was kind enough to take some time for a short interview in late October 2022. The purpose of the interview was not only to introduce Michelle to the B.C. legal community, but also to learn more about the world of legal librarians.

Michelle, please tell the B.C. legal profession a little about yourself

I was born in New Brunswick, lived for a long time in Nova Scotia and then moved to Alberta. My dad was an engineer, and my mom was a nurse for the Royal Canadian Air Force. I did my J.D. at the University of Alberta, gradating in 2015. I graduated from my master’s in library information studies (“MLIS”) program in 2019.

Between the J.D. and the MLIS, I worked in a small firm in Fort Saskatchewan, Alberta. The practice was about thirty per cent family, about twenty-five per cent civil litigation and the rest mostly administrative law and criminal law.

Why did you decide to do an MLIS?

The thing I liked most about being a lawyer was doing the research. Since I was a generalist, I had to learn a lot about everything. For instance, since I was working in family law, I needed to get up to speed on wills quickly. Naturally, I needed to understand the “why” behind the law, so I could figure out what the law meant for my clients. And honestly, I enjoyed the research a bit more than the client-facing aspect.

Things really came together when I was on a holiday in Greece. I went to the Ionian Islands to trace the path of Odysseus—I am a bit of a nerd. When

* Ryan Gauthier is an associate professor at the TRU Faculty of Law.

I went back to Athens, I was sitting in a Brothers Grimm-themed cafe to get out of the midday sun. Someone at the table mentioned that the Brothers Grimm started as lawyers who became librarians and another person responded: “That’s a weird career path.” But it turned out that was a real path.

What do you study in an MLIS?

It really depends on the program. Some people take different courses if they want to specialize in working with children, or in academic libraries, or in some other area. Information theory was a core component of the program—it focuses on the critical aspects of being a librarian, such as being a gatekeeper of information, and what doors a librarian can open for someone who is looking for information. We looked at the technological side of being a librarian as well.

I also studied knowledge management, which asks the question: How do people look for information? For example, we ask how information gets passed around in ways that may not necessarily be intuitive. We looked at an instance where companies took out their watercooler from the office, seeing watercooler chats as a waste of time. But the company found out that gathering around the watercooler was a critical source of information-sharing by employees.

Did you know what you wanted to do after the MLIS?

Sort of. I got a job with McLennan Ross between the first and second years of my program. So I knew by the end of that first year that I would be going back into the legal field.

But how I got that job is a bit of a story. The Canadian Association of Law Libraries has the Diana M. Priestly Memorial Scholarship, which I received in 2018. For the prize, I wrote a short essay creating a taxonomy of legal precedents. A member of the scholarship selection committee included the law librarian at McLennan Ross. I was hired to work on just what I set out in my scholarship application.

At McLennan Ross, I worked with the firm on knowledge management, helping members of the firm find precedents more easily. Eventually, the questions evolved from legal information to legal advice, and I got my insurance back and ended up more as a research lawyer. I really enjoyed the knowledge management work, as I know how to create a system that I used to be an end user of. I am perhaps too big of a nerd to be a regular lawyer, but I can create the systems that can help lawyers.

What did you do between your second tour in the law and TRU?

I was pretty interested in rural issues and decided to move to northeastern

Alberta for a little bit to work in their general libraries. It was a rewarding experience, but also a bit of a strange time as the pandemic broke out.

During this time, we could really see the importance of libraries to their communities. For example, Canada Emergency Response Benefit (“CERB”) applications had to be filled out online. For many people in rural communities, the internet is not great, which is where the library serves as a helpful resource. But when libraries were closed during the pandemic, people could not use the internet to apply for CERB.

The library is also a social hub for most people. Where is the place you can go in a town where you don’t have to be invited in or pay to be? The library is the one place in most communities.

Now that you’re at TRU Law, where’s your head at?

I was excited to come to TRU Law, as I really do enjoy working in law libraries. I also enjoy the education aspect. I like watching the light go on with law students, and working with them to really engage in the material.

I find that a lot of legal education is the “sage on the stage” approach. I worry that it may not be very engaging, and may only serve to make the lecturer appear smart [the author takes this only somewhat personally!]. A librarian can break down barriers, as the intimidation factor is much lower. That said, I’m freaking out a little bit about being back in the classroom as an instructor for Advanced Legal Research and Writing in January 2023.

Nicole Garton, B.A., LL.B, LL.M., C.Med, FEA, TEP President, Heritage Trust

NOS DISPARUS

By R.C. Tino Bella

Joshua Daniel Edgerton Cinnamon

Joshua Daniel Edgerton Cinnamon was born on a sunny day in 1977 in Tête Jaune Cache, British Columbia, an unincorporated rural area on the Fraser River, embedded in the Rocky Mountains near Jasper. The temperature that day was -40 degrees.

Josh was the second born in a family of six children. A family of this size implemented a team effort to finish chores at the farm. With responsibilities handled, the Cinnamon kids then took full advantage of the rugged recreational paradise of the Rocky Mountains. Swimming in the Fraser River, playing hockey on their home-ice frozen field and sledding down their infamous and dangerous local hill were some of the Cinnamon family’s activities. Apparently on the more extreme end of “kids” fun (that carried into adulthood) was pulling each other around on inner tubes, behind a snowmobile, in the dark.

After learning to skate at the age of three, Josh discovered hockey and was hooked. He left the family farm at age 15 to play junior hockey in Invermere, and then in the Rocky Mountain Junior Hockey League with the Nelson Leafs. This time in Josh’s life was pure Canadiana. He was a scrappy farm kid, spending weekends on wintry mountain bus rides going to smalltown hockey rinks. As a billeted high school student playing junior hockey, Josh made time to work as a wildland firefighter for the BC Forest Service. He excelled on all fronts. League statistics reveal a career-high 120 penalty minutes in the ’95/’96 season, as Josh quickly developed a reputation as a disciplined leader and the glue of the team.

Josh went on to play for the UBC varsity hockey team while pursuing an undergraduate degree in English and anthropology. He then attended the University of Calgary for law school. If being done with hockey left a sports

void in his life, Josh filled it by cycling absurd distances. His first big beginner ride was a solo trip from Calgary to Vancouver.

Josh articled at the Calgary office of Borden Ladner Gervais, focusing his first years of practice on being a corporate commercial solicitor. During these early years of practice in a lively oil market, Josh met the woman that he would eventually marry. After a few years of practice in Calgary, Josh and his then-girlfriend Amanda moved to Vancouver, where they would continue their legal careers and expand their whopping list of travel destinations. Josh’s practice, health, personal life and relationship with Amanda all thrived. The greatest challenge I recall from those heady post-Olympic days was that Josh had accumulated far too many bicycles for a one-bedroom apartment, and had commandeered the bathtub for storage.

Josh’s legal career in Vancouver began at Blakes. His work ethic in Blakes’ corporate and commercial transactions group was, from the viewpoint of anyone who knew him socially, low-key and understated. Josh had the stoic grit of his father, who maintains the Tête Jaune Cache family farm to this day, and in any given week he could commit demanding hours to a corporate closing, and then log a couple hundred kilometres of cycling over the weekend while finishing professional-grade home renos (having outgrown the bike storage in the one-bedroom). Josh’s billable hours, like his athleticism, demonstrated a baffling endurance that was fuelled by coffee and pastry. Still, Josh was so calm about everything in life that his exploits almost went unnoticed. Josh had genuine interest in his friends and his family, and his social grace overwhelmed his remarkable personal accomplishments. He cared so much and asked so many questions of his friends that the topic of Josh almost never came up. Living this way meant that everyone who knew Josh loved him because he made everyone feel so good about themselves.

Even though he would never rattle off a list like this, dabbling in the anecdotes of Josh is the stuff of legend:

•Josh renovated an entire townhouse by hand, by himself, in all the “free time” he had as a solicitor at one of Canada’s largest law firms.

•Josh and Amanda travelled extensively and remarkably. Josh’s most memorable trips include a motorcycle trip to Mexico, summiting Kilimanjaro, cycling from Geneva to Nice, hitchhiking through Morocco, watching the winter Olympics in Sochi and attending the first Obama inauguration in Washington, D.C. Regular trips to Maui sound almost boring by comparison, so Josh would liven things up by cycling either the west Maui loop or Mount Haleakala at 4 a.m., every day of vacation.

•Josh figured out how to swim, so he decided to try a triathlon. Thinking a normal tri was barely a warmup on a bike, he signed up for Ironman Canada. As a beginner swimmer, he inefficiently flailed through the four-kilometre swim and was at the back of the field of 2,800 participants. Then, during the 180-kilometre bike leg, Josh pedalled past more than 2,200 ultra-fit people, and capped the day by nonchalantly running a 3:40 marathon.

•Josh completed faculty extension courses in beginner Arabic and Egyptian Coptic history as a precursor to being married in, and more fully understanding, his fiancée’s home church.

•Josh rode his bike by himself from Vancouver to San Francisco.

Professionally, Josh became corporate counsel at Methanex Corporation, and then moved on to the role of general counsel at Ostara Nutrient Recovery Technologies. Josh was equal parts corporate lawyer and business advisor at Ostara. He worked closely with the CEO, who described Josh as a team player admired by his colleagues as a senior executive who provided strategic legal and business advice that helped propel Ostara to becoming the leading global producer of slow release phosphate fertilizers. Josh was instrumental in developing and negotiating international distribution/partnership agreements as well as contracts with governments in various global jurisdictions. He also was a key player in the negotiation and sale of Ostara to Grosvenor Food & AgTech, part of Grosvenor, UK, a large family office headed by the Duke of Westminster.

Josh and Amanda became parents to Bennett and Deacon (now ages three and six). This meant more than anything to Josh. Everything described above was a lower priority to Josh than the beautiful little moments in parenting. Josh always read an extra story at bedtime, always sang an extra song and was silly, loving and engaged in every moment with his boys.

Josh took up cross-country skiing, and a perfect winter weekend day in North Vancouver would include a morning bike ride, followed by an afternoon toting the boys around in a chariot on cross-country skis. Putting his prolific lung capacity to use, Josh had just begun cross-country skiing, and had a few loppets under his belt despite a technique that could have used some improvement.

In spring 2021, Josh felt some numbness in his hands and received a sudden and devastating diagnosis of cancer. He passed away in a matter of weeks. True to himself to the very end, in this short timeframe Josh was determined to conquer cancer as if it were yet another mountain that he would calmly summit. It seemed there was never a hint of desperation or

even sadness in him. To the end, Josh expressed love for Amanda and his boys, appreciation for the remarkable care he received at Lions Gate Hospital and an intention to get back to what he called his “normal”—exceptional—way of life.

Chris Schuld

Eugene (Gene) E.P. Macchi

Hey there now Where’d you go You left me here

So unexpected You changed my life

I hope you know ’Cause now I’m lost

So unprotected In the blink of an eye

I never got to say goodbye … Shine on Shine on On to a better place

C-A. Comeau, E. Kiriakou, P. Bouvier,

Lyrics and Music by:

recorded by Simple Plan

Eugene (Gene) Macchi came into the world on February 23, 1952 in Teaneck, New Jersey, the oldest of seven children. The Macchi clan was raised in Hohokus, NJ. Gene’s father had a company that manufactured cardboard shipping boxes. His mom and dad separated. Gene’s mom moved to Florida (giving Gene many opportunities to visit Disney World), and his dad moved to Florida after retirement. Gene had a great love of family and told many stories about growing up.

When Gene was 16, he and his brother Tommy were skeet shooting at Thunder Mountain State Park. Gene made a bet that, for $1 each, Gene would get two clay pigeons. Gene ended up blowing up the entire clay pigeon house.

In 1969, the family drove to Shamrock Village, Florida in a Mercury station wagon to watch the moonshot, which gave Gene a fascination of astronomy and space science. His love of space led to a string of increasingly powerful telescopes. Integrated with software on his laptop, they enabled him to quickly find and observe his celestial treasures. He talked enthusiastically about his latest purchase, a Dobsonian telescope, in the months before his passing.

His brother Tommy tells how the family visited the Catskill Mountains in New York every August. There, Gene fell in love with fishing. Gene went on a salmon fishing trip to Maine, which had no catch limit provided you practised “catch and release”. This was Gene’s biggest fishing story: he caught 42 fish in one hour and released all but the biggest one.

In his late teens, an event forever changed Gene’s life: he became eligible for the Vietnam War draft. Once a year, a lottery drew all birthdates in the year in random order. Young men were called up based on the order of the birthdates drawn until they filled their quota. While Gene’s birthdate was the second last to be drawn, and he had absolutely no chance of going to Vietnam, the whole process had left an indelible mark on Gene, as it had for so many others.

Gene left the United States to go to Western University in London, Ontario—first for business, then for law. Except for family visits and Disneyland, Gene never returned to the States. He acquired dual citizenship and the USA’s loss was Canada’s gain.

Following graduation, Gene articled in 1981/82 with McLean Hungerford & Simon in Vancouver and then practised as a solo practitioner on the North Shore until his passing. During his articles and afterwards, Gene had to appear in civil chambers, typically over foreclosure applications. Lawyers practising in the 1980s will recall civil chambers was frequently presided over by the Honourable J. Peter van der Hoop. Many current lawyers should consider themselves lucky or perhaps fortunate never to have appeared before Justice van der Hoop, who was precise and a stickler for proper procedure. The Professional Legal Training Course materials provide an example of his keen attention to matters of procedure:

Judge van der Hoop, at a CLE seminar held in February 1982, stated: “The first question you want to ask yourselves is, ‘Is the application necessary?’ There have been a number of comments from the judges about the frequency of applications which do not appear to the judges to be

really necessary. Sometimes these are contested. They are an unnecessary consumption of time. A number of these problems can be cleared up by cooperation between counsel. It is not a happy occasion to realize that an application is being brought and contested simply because there is illfeeling between counsel. That should never be the basis for an application. Counsel should strive to cooperate with one another. I always felt, when I was practising, that the practice of law was tough enough without counsel making it more difficult than necessary.” … Judge van der Hoop added that counsel should ask themselves, “Do I have a proper basis for the order I am seeking?”

Pity the poor articled student or lawyer who had the misfortune to appear before Justice van der Hoop and whose material, or whose argument, did not support a proper basis for the order they were seeking. It would have been, in the words of Justice van der Hoop, “not a happy occasion”.

Gene never had a problem with Justice van der Hoop; he preferred to appear before him. Such is a testament to his preparation, his demeanour before the court and his treatment of fellow counsel.

Gene’s principal client was the North Shore Credit Union (“NSCU”) (now BlueShore Financial). Ejaz Shamshuddin, NSCU’s CFO for many years and Gene’s frequent golf buddy, says that Gene’s passing represented a great loss of a very good friend who will be missed greatly by all those who knew him. Ejaz recalls that Gene was well known for his professional advice, and that Gene did not hesitate to refer a client to a specialist if he felt the client would benefit. Gene was generous, always making time to listen to client issues. Gene was held in high regard as an ethical and very capable professional lawyer, who was able to deal with a wide spectrum of legal issues, whether personal or corporate.

Anyone who even had just a passing acquaintance with Gene would recognize his wicked sense of humour. He did not miss an opportunity to poke a bit of fun at his friends, or himself most of all. While Gene was always a sole practitioner, he proposed I share an office with him and Dr. Toby Snelgrove on Lonsdale in North Vancouver. This brought together two lawyers and a psychologist into an entity we affectionately referred to as “Shyster, Shyster & Shrink”.

Gene was a dedicated and lifelong bachelor, or so it seemed. Gene and his good friend and golf buddy Keith Kawamoto bought houses together, lived in them, fixed them up and then sold them. Both seemed content to be carefree bachelors.

On one golf date, Gene, Keith’s father and I were all waiting for Keith to make up the foursome. We remarked that Keith would never miss a golf date. Gene replied that Keith must have been out with Sue. Shocked, all of

us replied in one voice: “Who is Sue?” Keith caught up on the second hole. That was the beginning of the end. Keith and Sue were soon happily married (in a drive-thru wedding chapel in Las Vegas, but that is another story … ). Keith and Gene sold their last house, and Gene moved into a condo to live the solitary bachelor lifestyle.

We often joked about what Gene’s “want ad” for a suitable lady would say: “Wanted: good woman who can cook, clean fish, has boat and motor. P.S. Send picture of boat and motor.”

Lo and behold, Gene met Marie, who seemed to be even more of an outdoorsy person than Gene himself. Gene was well and truly hooked, and Marie reeled him in. Together they went on many fishing trips with family and friends. Marie put a much-needed female touch on Gene’s fishing cabin out on Lac des Roches in the Cariboo.

Gene and Marie never had kids, which was unfortunate as Gene had a heart as big as a whale and would have made a great dad. While Gene never had pets growing up, Gene and Marie started raising puppies intended to be service dogs. Their first puppy was Clark. Gene and Clark formed a tight bond. Gene was ecstatic when Clark failed the final service exam. Marie joked that Gene loved Clark more than her. Then Gene and Marie acquired Finn, another Labrador, as company for Clark. This time, Finn and Marie could not be peeled apart. Gene and Marie recognized that perhaps giving up service puppies was not in the cards, but they continued to support service puppies. Marie continues to support service puppies in Gene’s memory.

Marie remembers Gene telling stories about when he was a teenager. He and his friend Ronny would skip school to go fishing in West Virginia. Some kids skip school to smoke or drink, but only fishing would tempt a straight arrow like Gene. Gene loved Disneyland. He and Marie visited as much as they could. Gene said that Disneyland was so much fun that they should rent kids at the entrance so people could share the joy of the experience.

Gene’s consideration for others rose over everything. He gave his time and resources in support of causes: people, puppies and others. He supported a spawning channel up in Lac des Roches to promote trout populations. He helped numerous friends with legal problems, no charge. He raised service dogs, or at least tried. He was a lifelong catch and release fisherman who squeezed down the barbs on his flies to minimize any injury and used special nets that were designed to minimize any impact on the fish.

He was a golfer, a fly-fisherman, a husband, a lawyer, a lifelong friend and much more. His values and ethics were above reproach. He supported in time, attention and finances those close to him and others whom he

never knew. He supported his and Marie’s family and had many wonderful fishing trips with his father-in-law. He made friends easily, and those friends stuck with him.

Gene may be gone, but his influence continues. He changed countless lives, all for the better. In the movie It’s a Wonderful Life, Clarence, George Bailey’s guardian angel, says: “Strange, isn’t it? Each man’s life touches so many other lives. When he isn’t around, he leaves an awful hole, doesn’t he?” You left us, Gene, so unexpectedly. I didn’t get to say goodbye. But I know you are in a better place, with your fly line in the water, saying: “I’ve got another one!”

David J. Bilinsky

Walter Richard Dacre Underhill

Richard (Dick) Underhill was a member of the Law Society of British Columbia from 1958. He reached the end of his long, productive and eventful life on July 9, 2022, passing away peacefully during his afternoon nap in Perpignan, France at the age of 90.

Richard and I were longtime friends starting in high school (Prince of Wales) and continuing for the rest of his days. I have spoken with many of the people with whom he was associated and they all voiced views that he was a man of immense intellect, physically very strong, a good athlete, a true gentleman, an extremely good lawyer, a tireless contributor to the community, open to new challenges, a good father and grandfather—I could go on, but enough said to get across the point that he was quite an amazing person.

Richard was born in Vancouver on June 8, 1932. His parents were Richard Walter Underhill and Caroline Mary Underhill. Much of the Second World War years were spent in Ottawa and Toronto as a result of his father’s naval assignments. After the war, his family returned to Vancouver. At Prince of Wales High School, Richard was awarded the Boys’ Merit Trophy as the top male student in terms of scholastics, sports and leadership.

He took his law degree at the University of British Columbia and was a first-class student. In 1954, he was elected as president of the Alma Mater Society (the student body) of UBC.

He also married fellow student Beverly Cook.

In 1955, he graduated with his law degree. He was also awarded the Mackenzie King Scholarship. This took him and Beverly to London, where he attended the London School of Economics. In addition, he and Beverly toured throughout post-war Europe in their green VW Beetle.

They returned to Vancouver in 1957. He was called to the bar in 1958, and commenced the practice of law with the Ladner Downs firm. During this period, Richard and Beverly were blessed with the arrival of their three children, Graham, Geoffrey and Frances.

In 1964, the Government of Canada appointed Richard to provide development assistance to the newly formed Republic of Tanzania. The work was in a setting of political instability, danger and excitement. It included the conversion of the country’s legal system from that of a colony to that of an independent state, the drafting of Tanzania’s constitution, the establishment of the law faculty at the University of Dar es Salaam and the training of the bench. Richard and Beverly and their three children lived in Dar es Salaam during this time.

On their return to Vancouver, Richard joined the firm Cumming Richards and settled down to the practice of law. Among others, he worked closely with the late George Cumming, Q.C. (later J.A.). With the passage of time, the addition of new lawyers and the amalgamation of three law firms, the name of the firm became Richards Buell Sutton. His practice was mainly business law. By all reports from lawyers and staff with whom he practised, he was a brilliant solicitor and highly respected by and helpful to those around him. The law for Richard was never just a means to earn a living— it was truly his passion.

One aspect of Richard’s practice was to instruct and help prepare counsel on litigation matters, much like the system in England. In this regard, Richard’s former partner, Bruce Fraser, K.C., gave me a good example. Richard had as clients the Egg Marketing Board and the Chicken Marketing Board. He did the general solicitor’s work for them. Some of the work involved significant litigation. Richard would instruct Bruce as counsel and prepare him in detail for hearings. This system suited Bruce because early on in his career he had been a pupil to a barrister named Peter Dow, Q.C., of the Middle Temple at Two Garden Court in London, and watched firsthand this approach to the English practice. As an aside, Bruce is now retired from the practice of law and has become a noted author (see his Chilcotin trilogy).

Richard was a founder and prime mover of the Pacific Rim Advisory Council (the “PRAC”). The PRAC is an international law firm association that provides the clients of the PRAC with the exchange of knowledge and expertise in respect of the business and legal issues in the Asia and Pacific Rim areas. The PRAC remains to this day a significant organization contributing to international business and legal relations.

Richard was a member of the Twenty Club, a group of lawyers that meet regularly to present and discuss papers on issues of significance to the law. He authored and presented many papers to the Twenty Club.

Richard was actively involved in the community life of Vancouver. He was president of the Shaughnessy Heights Property Owners Association, president of the Centennial Vancouver Monuments and Planetarium Association, a prime mover of the Look of Music exhibition and a member of the board of the Vancouver Symphony Orchestra. He also taught law at the UBC law school and gave tutorials to young lawyers.

In 1988, Richard left Richards Buell Sutton and set up practice on his own in Vancouver and then on Bowen Island. For many years, he continued to act for longstanding clients. He also continued his association with the PRAC. He retired from practice in 2015.

Bowen Island had been Richard’s childhood summer home. It was there where he taught his children everything from fishing to swimming to boating and water-skiing. He was active in the community life of Bowen Island. He was part of the campaign to cause Bowen Island to become an independent municipality and was an elected member of the Bowen Island municipal council.

Richard’s marriage to Beverly ended in divorce in 1980. She died in 2000.

In 1984, Richard married Lana Hills. They had met while they were both taking a French language course in Villefranche-sur-Mer. Together, they built the house of their dreams on Finisterre at Hood Point on Bowen Island. They also had a second home: a house near Perpignan in the south of France.

During their last visit to Perpignan, Richard’s health deteriorated. He needed special help and he received it at home and then at the Korian care home in Perpignan. It was there that he died peacefully on July 9, 2022.

Richard is survived by his wife Lana, his sister Mary Nichols, his three children Graham, Geoffrey and Frances (Frost), son-in-law Max, stepdaughter Alexandra Norris (James), grandchildren Antonia, Patrick, Simon, Devin, Tristan, Jamie and Katrina and step-grandchildren Harry and Chloe.

Richard was truly an amazing person.

The Honourable Duncan Shaw

Peter Andrew Allard, Q.C.

Peter Andrew Allard, Q.C., passed away unexpectedly in Cabo San Lucas, Mexico on June 11, 2022 as a result of injuries suffered by him in a fall. He was 75 years old.

Peter was one of a kind. Warm-hearted and generous, with a great, quick-witted sense of humour and a rather distinctive giggle and accompanying face rub, he was an independent thinker with a grand vision for making the world a better place; an endearing, sometimes quirky, approach; and a very clear sense of what is just. He was a lawyer, benefactor (he hated the word “philanthropist”, though he was one), passionate advocate, news buff and world traveller, and a much-loved brother, uncle, great uncle and friend.

Peter and his twin brother, Charles (Chuck), were born in Boston, Massachusetts on October 29, 1946. Their father, Dr. Charles Allard, a medical doctor and later a celebrated entrepreneur, broadcaster and philanthropist, was completing his post-graduate degree in surgery there. Their mother, Bettie Allard, was a force, too—smart, strong and hardworking, and ahead of her time in her concern for the environment. Both Dr. Allard and Bettie Allard were from Edmonton.

The family, which also included an older brother Cam and sister Judy, returned to Canada in 1947, first to Montreal and then to Edmonton, where Dr. Allard became Chief of Surgery at Edmonton General Hospital.

Peter’s parents separated in 1950, and his mother and the four children moved to Vancouver. They stayed with relatives there until they found a house of their own on Highbury Street at 12th Avenue, in Point Grey. Peter and Chuck attended Mrs. Timberlee’s kindergarten, then Queen Elizabeth Elementary School, followed by Lord Byng Secondary School, graduating in 1964. Peter was active in drama class in school, and both he and Chuck were active in Boy Scouts.

After high school, Peter attended the University of British Columbia, just a short bus ride (and sometimes hitchhike) up the road from his home. After receiving his bachelor of arts degree with a major in history in 1968, Peter attended UBC Law, graduating with his bachelor of laws degree in 1971. His brother Chuck graduated from UBC Law the following year. Peter spoke fondly of his days at UBC Law, and of his respect for many of his professors, including George Curtis, Bertie McClean, Jim MacIntyre and Tony

Sheppard. Peter maintained friendships with several of his classmates throughout the rest of his life. He said that in his law school days, the “hip” students brought their dogs to the library to sit under their desks while they studied, while the “cool” students played bridge in the common room all day long. He recalled that law school was full of characters, which suited Peter fine. Peter’s law school experience transformed him, as he came to recognize the impact of law on every aspect of society.

Peter’s father had wanted both Peter and Chuck to move to Edmonton to work for law firms there once they completed law school. However, while Chuck moved to Edmonton, Peter stayed in Vancouver. He articled and then practised with Barbeau, McKercher, Collingwood and Hanna, with Jacques Barbeau as his mentor. Later on, Peter built a home next to the Barbeau family home in Point Roberts, Washington.

In 1976, Peter formed Allard & Company, specializing in real estate law, with two other partners. It was a busy practice, and he recognized and very much valued the important contribution of the support staff and, in particular, that of Dennie Flynn, who remained his faithful and extremely diligent assistant and friend for the rest of his life.

Even in those days, busy as he was, Peter never missed an opportunity to help where he could. One day, a group of ducks was stranded on the terrace of his office on Hornby Street. Work demands were calling. However, without missing a beat, Peter scooped up the ducks in his suit jacket, put them in his car, and drove them to a sanctuary. He would get to the conveyancing work later.

In 1993, two years after the death of his father, Peter established The Highbury Foundation—which, over the past 30 years, has provided many millions of dollars in support to countless charities, largely in British Columbia and Alberta. Some of the beneficiaries include the British Columbia Institute of Technology, Emily Carr University of Art + Design, Brentwood College School, Vancouver Aquarium, several YMCAs, St. Paul’s Hospital Foundation, BC Women’s Health Foundation, BC Cancer Foundation, University of Alberta Diabetic Chair and research support for the fights against cancer, diabetes, Hepatitis B and C, and HIV/AIDS. The Highbury name was very significant to Peter, not only because it was the street on which he grew up and his mother lived for the rest of her life, but also because it symbolized for him the struggles his mother faced raising him and his siblings on her own.

Peter became a non-practising lawyer in late 1993 and sold his interest in Allard & Company to his remaining partners. From that point on, he focused on managing his investments and his philanthropic pursuits, both

through The Highbury Foundation and personally. Internationally, he worked to protect wildlife habitats and biodiversity, while promoting stronger environmental standards and education. He also worked to protect human rights.

In business, it wasn’t making money that drove him. What he loved was the process of working out the challenges. The ultimate financial success was anticlimactic to Peter, and he usually looked for a way to donate his profits to those he thought could use them.

Deeply influenced by the example of his mother, whose indomitable spirit, commitment and social conscience he so admired, Peter sought to make the world a better place, both in his own community and internationally, in big ways and small. He was often a champion of the underdog and the vulnerable, with a particular focus on youth. If someone needed something, Peter was there, whether with a kind note, a helping hand or otherwise. He was always thoughtful and inclusive, and his generosity reached far and wide. There were big gifts that made headlines, but also hundreds of small gifts each year to charities he thought were doing great work but were not well funded. He did not want them to be forgotten. His brand of philanthropy was active. He thought carefully about which causes he wanted to support, and he engaged directly with many of the organizations that received his support.

When UBC was looking to build a new law school building, and Bob Lee approached Peter for a significant gift (Peter jokingly referred to their meeting as the most expensive free lunch he ever had), Peter agreed to contribute $10 million. However, while he recognized the need for bricks-and-mortar funding, he had a broader vision for the project, and he asked that $175,000 of his gift support a new Faculty of Law history project to develop, maintain and publish a database of information about the faculty. And he coupled his gift with $1.75 million in additional funding for the establishment of a new international anti-corruption and human rights prize at the Faculty of Law—what became the Allard Prize for International Integrity. Peter was an avid art collector, and he also donated a sculpture for display in the upper-floor courtyard of the new building, which was named Allard Hall.

In some ways, to Peter, one of the most important parts of the gift was the support for the creation of the Allard Prize. He was not sure exactly how the Allard Prize would evolve, but core to his goals was highlighting the efforts of the countless courageous individuals and organizations worldwide who fight for transparency, accountability, the rule of law, and basic human rights, often at great personal cost and sacrifice, and risk to their personal

safety and that of their families. He wanted to tell their stories, with the goal of inspiring change—not just in our systems, but in each of us personally in our own lives. And he always emphasized that corruption is not a Third World problem, but rather a human problem. He wanted to challenge people to spend less time on pure commentary, and more time on progressive action. The biennial $100,000 Allard Prize was launched in 2012 and became independent of the Allard School of Law in 2019. In its recently completed 2022 cycle, it received 279 nominations from 78 countries.

During its initial development and first three award cycles in 2013, 2015 and 2017, the Allard Prize was administered by a prize committee composed of three individuals appointed by a new foundation established by Peter, The Allard Prize Foundation, and three individuals appointed by the Faculty of Law. The goal, in part, was to significantly elevate the international profile of the Faculty of Law. The process was very positive and highly collaborative, and Peter admired and was inspired by the leadership and commitment of Dean Mary Anne Bobinski (with the wonderful support of Kari Streelasky, Assistant Dean, External Relations), for whom he maintained admiration and respect to the end. This was so much so that when Dean Bobinski approached Peter about a possible naming gift in relation to the Faculty of Law, he was interested. Peter’s vision was for the Faculty of Law to establish and maintain “pillars of excellence” in human rights and international integrity and ethics, and take a leadership role with global reach and impact in issues relevant to the Allard Prize. The Faculty of Law’s dedication of its belief and energies in the vision through the Allard Prize drew him to this further level of commitment.

In January 2015, UBC announced a gift from Peter valued at $30 million, the largest gift ever made to a Canadian law school, and a transformational moment in the law school’s history. The gift established permanent endowments for faculty recruitment and retention, student support, and experiential learning and clinical opportunities for students, and included further funding for the Allard Prize. For Peter, it was critical that a significant part of the funds support students. In recognition of the gift, UBC named the Faculty of Law the Peter A. Allard School of Law. Initially, Peter had wanted the family name as the name of the law school, and not his own, but he was ultimately persuaded to allow his own name to be used. The Allard School of Law website states that “Mr. Allard’s efforts reflect a defining characteristic of UBC law graduates: a commitment to the pursuit of justice. Like others before him and generations to follow, Mr. Allard has sought to inspire and provoke, to persuade and persevere, and to pursue justice at the local and international levels. UBC is proud to recognize Mr. Allard’s inspiring

example to future generations through the law school and building that bear his name.” At the announcement ceremony, Peter said: The monies that are being committed today are to establish one of the world’s truly great law schools, in significant part by giving this law school the ability to steadfastly and rigorously advance the principles of the Allard Prize, encourage their adoption and multiply the beneficial effects in our day-to-day life, and work with those in the legal community and beyond, locally, nationally and internationally, to make a better world. I believe these principles, which respect the concept that all human beings are of value and worthy of our energies, are critical to the success of our societies. We have the power and ability to follow the path of honesty and integrity and restore (or, in many cases, introduce) these principles to our institutions. My desire is that, now and hereafter, the Peter A. Allard School of Law use my gifts to secure its leadership role in this campaign to move the principles of the Allard Prize forward to a concept of “we” versus “I”, and be a beacon of hope, and a catalyst for positive change, around the world.

Peter was an advocate of free speech, equality and justice. He often fought uphill battles on points of principle, even when he knew that success was unlikely. He was a realist. He had unfortunate disputes with UBC in recent years, but he fought for what he believed was right. He was disappointed with the direction of the Allard School of Law following Dean Bobinski’s departure, and also UBC’s withdrawal from involvement with the Allard Prize, but he remained hopeful that, in time, the school would achieve the vision on which his gifts were founded.

Peter was modest, unassuming and self-effacing, with a complete lack of pretention. He was in some ways shy, and in social situations preferred to be in the background, if present at all. He spent the vast majority of his time wearing baggy jeans and a hoodie (preferably Allard School of Law) and, if given the choice of restaurant, would invariably select White Spot or Earls.

An avid e-mailer, he made unparalleled use of cc and bcc, with a randomness as to who was included that was impossible to understand. He was curious about and interested in everything, and thought that everyone else would be too.

Peter’s greatest love was his family. He took many of his 12 nieces and nephews on special trips, and he loved his 24 grandnieces and grandnephews as if they were his grandchildren, which by all important standards they were. He never grew tired of asking about their achievements, delighting in their successes and worrying about their challenges. There were photographs of all of them in his homes in Los Angeles and Cabo San Lucas.

Peter acknowledged and was deeply appreciative of all those who had helped him in his life. He credited his ability to support so many causes to

the labours of three generations of family members, sometimes working together, starting with his father, and continuing with his siblings (including his younger siblings Cathy and Tony), and then his nieces and nephews, including his nephew Rob King, with whom he worked so closely in recent years. When he made his gift to UBC in 2015, he said it was very much a gift on their behalf as well.

One of Peter’s last acts of philanthropy was support for the new Coquitlam YMCA, a 55,000 square foot community centre that opened in November 2022, named the Bettie Allard YMCA for Peter’s mother. It is the first YMCA in Canada named for a woman alone. This is such a fitting tribute to a woman who so greatly influenced Peter.

At the entrance to Allard Hall is a photograph of Peter and Chuck with a quote from their father: “It is not how far I walked, but how many lives I touched along the way.” Peter touched incalculable lives during his life, and will continue to do so for generations to come.

Geoff Lyster

James P. Shumka passed away unexpectedly from a sudden illness on August 23, 2022, just days shy of his 59th birthday. James had just returned home to White Rock from a week of fun in Kelowna with Susan, the love of his life for nearly 40 years, and a few close friends. He had been enjoying some of the things he loved to do the most: playing golf, spending time on the lake and partaking in summer barbeques and winery dinners.

We who knew James are all heartbroken and devastated by his passing. James passed away far too soon. But James would want us to remember all the amazing times we had together, not to put off for tomorrow the fun we can have today, and to live life to the fullest. Those were certainly words James lived by. Along with his wife and best friend Susan, James is dearly missed by his sons Trevor and Adam, daughter-in-law Emily, his mother

James P. Shumka

Rosemary, brother Dave, sister Beth and many nieces, nephews, in-laws, friends and colleagues. James was predeceased by his father, Bob, and his parents-in-law, Bill and Helen.

James was born in New Westminster and always remained in the Lower Mainland where he could enjoy the West Coast lifestyle close to the ocean. Growing up, James combined his great intellect and natural athletic ability with an exceptional work ethic, which led to his many academic, personal and professional achievements. Throughout his life, James loved to play and watch a variety of sports, including hockey, baseball and golf. He was also an avid reader and loved history and current events.

James attended the University of British Columbia and graduated with honours in 1988 with combined degrees in law and business. James met Susan on their very first day at UBC and knew immediately she was his soulmate. They married at the age of 20 and never looked back. James and Susan built a wonderful life together raising their two boys, Trevor and Adam. James was never happier than when he was with his family; Susan, Trevor and Adam were his world.

It was also at UBC where James met several of his lifelong friends, whom James valued greatly. Many of his close friends were divided into two groups—those living in Vancouver and those living in Calgary—which led to rivalries on the golf course and much banter during the NHL playoffs. For years, James would organize the annual “guys’ golf trip” to Las Vegas, Phoenix and San Diego, to name just a few of the fabulous destinations over the years. For James, planning those trips was often like herding cats, trying to get everyone to agree on dates and venues. But when the flights and hotels were finally booked, the trips were the highlight of the spring. James could also often be spotted on Fridays with the Vancouver contingent of his UBC Law friend group, enjoying a lively discussion over lunch at one of the many beautiful patios around the city.

James had a clever sense of humour, a curious mind and a passion for adventure. For a time, Susan was involved in the travel business, which allowed James, Susan and their friends to travel to the four corners of the world. Together they explored the beaches of Tahiti, toured around Europe, sailed the Caribbean, and rode camels and dune buggies through the Egyptian desert. Closer to home, James loved boating and golfing with his family and friends both locally and in the Okanagan, which in earlier years included houseboat trips to the Shuswap and summers spent at Boucherie Beach Resort in Kelowna. During winter months, Puerto Vallarta became James’s happy place, but any place where James could be with Susan, his family and friends was truly his happy place.

Following graduation from UBC Law, James began his career as a brilliant tax lawyer in 1989 at the Vancouver firm of Campney & Murphy, where he practised for ten years. He then became a founding principal of Legacy Tax + Trust Lawyers, also based in Vancouver, where he was instrumental in the formation of the firm in 2000 and coined the firm’s name. For his entire career, James took on a leading role at Legacy and helped grow the firm into one of Vancouver’s leading boutiques in the areas of estate and tax planning, cross-border advice, and estate and tax litigation. James was extremely proud of his colleagues at Legacy and would often boast of how lucky he was to work with the best team in the city.

James was universally respected by his colleagues at Legacy and by many others at law and accounting firms across the country. His superior intellect and talent for working through the most complex of transactions and tax matters would greatly benefit his clients. James also regularly volunteered his time to teaching continuing legal education courses at numerous workshops and conferences over the years. Tributes and accolades were not important to James. He was happy being a quiet mentor and advisor, and everyone, both at Legacy and across the table from James, greatly admired James and considered him an absolute pleasure with whom to work.

One of James’s partners noted: “I had the pleasure of working with James for over 20 years. He was truly a class act, always a perfect gentleman, completely dignified and utterly decent. He will be terribly missed, and we are very saddened by his passing. His legacy will live on, and his guiding principles are a large part of the DNA of our firm. More importantly, he was universally revered as a person. I hope Sue and James’s family can in due time find peace and comfort knowing of James’s exceptional reputation and contribution.”

James’s true legacy is his family and friends. James was a wonderful husband, father, son, brother and friend. James would take great pride in their successes and achievements. Trevor and Adam have grown up into fine young men, and James was always incredibly proud of his sons. James never missed a game, practice, debate, concert or other activity in which Trevor and Adam were involved. He loved to participate with them as coach or mentor or to cheer them on from the bleachers. Trevor is currently employed in the real estate industry in Vancouver at Marcus & Millichap. Adam followed in his father’s footsteps and is currently an associate at the Vancouver office of Bennett Jones LLP, where he practises corporate law. Adam recently married Emily Thorpe, a lawyer at Whitelaw Twining in Vancouver. Emily and her family were fortunate to have been able to get to

know James and will also miss him dearly. James was incredibly selfless and would do anything to help others. He was a loyal friend and gave terrific advice. Whether professionally or personally, he was always calm and composed in every situation and helped others to put things into perspective. James was truly someone to aspire to be like. We are all better people for the time we shared with James.

Ron Barron

Rodney Hepburn Hawkins

Rodney Hepburn Hawkins passed away peacefully at his Williams Lake home on June 22, 2022.

Rod was born on April 3, 1944 in Claremont, New Hampshire. His parents were members of longestablished New England families. As a boy, Rod did not seem to be motivated to succeed, but that changed when, at age 14, he was enrolled in a Massachusetts private school, the Williston Academy. He excelled there as a student, an athlete and a leader of extramural activities. Upon graduation, Rod was selected as an exchange student to Germany. He was returning home by ship in 1964 when he met his wife-to-be, Sandra Andresen, as she boarded the ship in Galway Bay, Ireland. They married in 1965.

Rod attended Dartmouth College and graduated in 1968 with a degree in German. While he was at Dartmouth, Rod was surprised when the CIA attempted to recruit him. He turned them down. After his graduation, Rod was notified that he was being drafted. Both Rod and Sandra were entirely opposed to the war in Vietnam and, in 1969, they decided to join the flood of young Americans heading to Canada.

In Canada, Rod found work as an insurance adjuster, but this did not challenge him. He chose to begin law school at UBC in 1970. As graduation approached in 1973, the Law Society required assurance that Rod, although a draft dodger for whom a U.S. indictment was still outstanding, was a suit-

able person to commence articles and become a member of the Law Society. Rod therefore sought the assistance of Professor Dave Huberman, who introduced him to the partners of Freeman, Freeman, Silvers and Koffman, where Rod articled and then worked as a junior solicitor until 1975. At that time, he and Sandra decided to leave the big city and settle in the Cariboo town of Williams Lake.

Rod’s introduction to the practice of criminal and family law came in 1975 when the Legal Aid Society opened a clinic in Williams Lake. He was the manager and maintained that position for 17 years. Many of the clients that Rod had as a legal aid lawyer in Williams Lake were Indigenous persons from nearby Indian reserve communities. These clients were properly represented: no more uninformed guilty pleas or quick-and-dirty child apprehensions. Joan Gentles, a Tsilhqot’in woman who was a truly remarkable early Native courtworker, recalls that Rod played a large role in causing necessary changes to happen.

The 1976 case of Louisa Michel was a proud achievement for Rod. She was a chronic alcoholic who told fantastic stories when seeking money to buy more wine. The Crown sought an order under s. 64A of the Summary Convictions Act that she be detained for the purpose of rehabilitative treatment. Such orders were then being made with notorious frequency against Indigenous men in Prince Rupert, Prince George, Kamloops and Vancouver. Rod called witnesses who established that the legislation was misused in a racist manner. No order was made against Louisa, and the entire scheme soon ended after the decision in her case: R v. Michel (1976), 6 B.C.L.R. 1.

In 1995, the Attorney General necessarily sought an experienced person to take charge of the Crown Counsel office in Williams Lake and Rod—to the surprise of some—applied and was selected. He quickly demonstrated that the right choice had been made. Ray Hall was the Regional Crown who selected Rod to run the Williams Lake office. He recalls that Rod was appointed because he knew and understood the Williams Lake area and was the right person to bring stability to a troubled office. He accomplished that long before he reluctantly retired in 2012. Jennifer Johnson, a former Williams Lake Crown and the current Administrative Crown in Quesnel, recalls, “Rod was the kindest and calmest mentor a Crown could have. I shall miss him.”

Retired Provincial Court judge Victor Galbraith, who began his work as a Crown counsel in the Williams Lake office, comments:

Rod kept a file cabinet of law on every obscure topic you could think of. As a junior Crown, you could always drop into Rod’s office and tell him you had an issue involving the co-conspirator rule or something equally odd, and he’d pull out a file folder of cases on topic to help you out.

During his retirement years, Rod was much involved in the creation of the Williams Lake Indigenous Court, which opened in 2020.

During the many years that Rod, Sandra and their two sons lived along the shore of Williams Lake, Rod planted a multitude of lilac bushes and trees. They will bloom again in the spring of 2023 and stand as a beautiful memorial to a man whose life was well lived.

Cunliffe Barnett

Alan Eric Vanderburgh, Q.C.

Alan Vanderburgh, Q.C., died peacefully at home on December 29, 2021, surrounded by family. Alan described himself as a lucky man, in his marriage, his family, his friends and colleagues, his legal career and his community.

Alan was born in Welland, Ontario on March 17, 1931 and grew up in Allanburg, a village on the Welland canal. His father, Harry Vanderburgh, had in his youth gone to Florida to play semi-professional baseball, returning home in 1919 when Harry’s father died. In 1924, Harry married Oread Sheppard, who was a teacher in the Allanburg Public School. Alan was one of five children.

Alan attended school in Allanburg, where for a time his mother continued to teach, and attended high school in Thorold. He graduated from high school in 1948 and went on to attend Queen’s University for his undergraduate studies.

Baseball was a favourite pastime of the Vanderburgh boys, and Alan and his older brother Ken played on the Allanburg team. It was while playing a game against a neighbouring village, Beaverdams, that Alan met Shirley Robins. Alan and Shirley were married in July 1953 and celebrated their 61st wedding anniversary before Shirley’s death in August 2014. Alan often said that meeting and marrying Shirley was the greatest piece of good fortune in his life.

In the fall of 1953, Alan and Shirley moved across the country to Vancouver, and Alan entered first-year law at the University of British Columbia. Alan was 22, and Shirley was 17 and expecting their first child. They had very little money, and after the arrival of their daughter Cathy, there were hospital bills to pay. At one point, Alan went to Walter Gage, the Dean of Arts, to let him know that he might have to drop out because he was going to run out of money. Dean Gage came through with a bursary, and Alan was able to complete his first year.

In April 1954, in debt and very homesick, they pawned Shirley’s wedding ring for train tickets and headed home to Ontario. Alan took a year away from law school and worked to support his family. The following year, he enrolled in second-year law at the University of Toronto. He lived rent-free in a fraternity house on the campus in exchange for tending bar, while Shirley and their growing family, which now included Barbara and David, lived with her mother in Beaverdams.

In September 1956, Alan returned to Vancouver for his final year at UBC. Shirley and the family followed in December. Money remained tight, and Alan worked part-time at the liquor store. He made many lifelong friends in law school, including the late Alec Robertson and Jim MacIntyre, who quickly became a part of the family. After graduation, Alan commenced his articles at Bourne Desbrisay Bourne.

Alan was called to the bar in 1958 and practised with Bourne Desbrisay Bourne until 1960. By then, the family included Eileen and Ken.

Alan described landing in Williams Lake in 1961 as “fortuitous”:

I had been practising with a law firm in Vancouver since my call to the bar in 1958 and we were living in North Vancouver. At that time, especially in North Vancouver, it seemed to start raining around the 1st of November and continue steadily until the 1st of May, after which it would only rain every other day.

In the summer of 1960, a friend of the family, Peter Oloffs, and I took a very short tour of the interior of the Province and ended up in Williams Lake. It appeared that it hadn’t rained in Williams Lake for months, unlike North Vancouver. I later found out that was not completely correct as it could be counted on to rain heavily during haying seasons and at the Williams Lake Stampede but the rest of the time it was hot and sunny from May 1st through September 30th.

So it came about that I noticed an advertisement posted in the Barrister’s Room at the Courthouse in Vancouver, that one Lee Skipp of Williams Lake wanted to hire a lawyer. In the course of events, Lee interviewed me and offered me the job and I arrived without family in Williams Lake on January 21, 1961. The temperature at the train station was -35 and I had some thoughts about my decision but I was treated warmly by Lee and Mary Skipp. Shirley and the children joined me at Easter.

The firm, which was founded in 1948, became Skipp & Vanderburgh, later Skipp, Vanderburgh & Darcy. On Lee’s appointment to the County Court of Vancouver in 1973, the firm became Vanderburgh, Scott & Darcy, then Vanderburgh, Scott, Halpin & O’Brien. The firm then became Vanderburgh & Company, with Alan, Angela Ammann and Julian Trycynski as partners.

In the summer of 1961, the manager of the Bank of Montreal invited Alan to join him on a “business development trip” into the Chilcotin and to Bella Coola to visit his customers, many of whom were clients of the law firm as well. The route involved navigating “the Hill”, the recently built road from Anahim Lake down into the Bella Coola valley. The trip was an introduction for Alan to the Chilcotin and the people who lived and worked there. They were warmly welcomed and offered hospitality wherever they went. This trip made a tremendous impression on Alan, and was the start of a lifelong love affair with the Cariboo-Chilcotin and the people who lived there.

Alan’s practice was varied, serving local ranchers, business owners and other residents in all areas of the law. Over 61 years of practice, his clients included multiple generations of local families. He also advised many Americans and Europeans drawn to the lure of a ranching life in the Cariboo-Chilcotin or dreams of running a resort or fishing lodge on a remote lake. In the early years, he had a criminal law practice, both as defence counsel and as prosecutor. He often attended the assizes in Prince George and Kamloops on criminal and civil matters, sometimes for weeks at a time. In later years, Alan restricted his practice to solicitor’s work, but it continued to be a broad practice: advising clients on corporate, real estate, family and wills and estate matters, including acting as the administrator of estates on behalf of the Public Trustee.

Alan was a mentor to the many articled students and young lawyers who worked with him or were part of the Williams Lake legal community. He valued his colleagues and appreciated the loyalty and friendship of his office family—in particular, his long-time assistant Valerie Hoyland and his partner Angela Ammann, who supported him as a law partner and friend in the years before his retirement. Tom Smith, Alan’s former articled student and colleague, now a retired Provincial Court judge, said that Alan “cared for the people who worked with him, both the staff and the lawyers, and for his clients. And those people cared for Alan.”

Elizabeth Bayliff, a member of one of the long-time Chilcotin ranching families, articled for Alan before going on to be a Crown prosecutor and then Provincial Court judge. She said of Alan: He was quiet and unpretentious in his dealings with support staff and lawyers in the office. No tantrums. No micro-managing. He gave the people who worked for him and with him a lot of freedom to go about their

work in the way they thought best. When you worked for Mr. Vanderburgh, you wanted to do well rather than feeling compelled to do well.

Tom Smith, speaking at Alan’s memorial service, said:

One day I told Alan, “I’m worried that a client may ask me a question and I won’t know the answer”. “I love it when a client asks me a question that I don’t know the answer to,” said Alan, “because that is a challenge.”

Those few words seared into my mind and changed my life. After that, instead of feeling down, when I faced a daunting task, I turned it into a challenge and my attitude changed from worry to problem solving and sometimes to excitement.

Angela and Julian, his partners in Vanderburgh & Company, and Clare Hauser, an associate in the firm, said that Alan always made everyone see the interesting side of any file, work was never a drudgery and his sense of humour always lifted them up. It was clear to his colleagues that Alan loved the practice of law, and his enthusiasm was infectious.

Alan was active in the community, including the Kiwanis club and the Williams Lake Golf Club. In July 1971, Alan was instrumental in the creation of the Cariboo Foundation and served as its president for 50 years. The foundation got its start because Alan and others saw the need for local scholarships for local graduating students. In the beginning, the total annual scholarships were in the hundreds of dollars. By the time Alan retired from the foundation in 2021, the foundation had paid out over $1.5 million in scholarships.

Alan was an active member of the Cariboo Bar Association, including serving as its president. His long-time friend and fellow member of the Cariboo bar, Bob Dick, said on hearing of Alan’s death:

The Cariboo Bar Association is comprised of lawyers from roughly the whole northwest quarter of British Columbia. Alan Vanderburgh was one of the last, and one of the best known, of the true “characters” of the Cariboo Bar. These characters were the lawyers that other lawyers would seek out and spend time with, both on a professional and a personal level. I consider myself fortunate to have known Alan, and I have many fond memories of the times we spent together at Cariboo Bar Association meetings throughout the county, and at Law Society meetings throughout the province while we were serving as benchers of the Law Society, and later as governors of the Law Foundation. In between all of that, we spent countless happy hours on golf courses all over British Columbia. He had a quick wit and a droll sense of humour that endeared him to all who knew him. He will be sorely missed.

Alan was elected as a bencher of the Law Society for the County of Cariboo in 1988, and served for many years on the Discipline Committee. He also served as a governor of the Law Foundation of British Columbia. During his time as a bencher, he developed many lifelong friendships, includ-

ing with Grant Burnyeat, Bob Johnston, Jane Shackell, Karen Nordlinger and the late Jack Webster. Grant summed up Alan’s contribution as a bencher as follows:

Alan was a life bencher, but more than that he was the longest serving member of the Discipline Committee, a trusted voice at the benchers’ table and the social chair for many years. Annual meetings in Williams Lake were highlighted by his generosity with wife Shirley at barbeques at the family acreage. His counsel was always available, and he was able to inject the reality of up-country practice into bencher deliberations.

Alan was appointed Queen’s Counsel in 1998. He retired in 2019 at the age of 88 after 61 years of practice, most of those years spent in Williams Lake. Some of his clients considered this an early retirement. Despite threatening retirement for years, when he announced his definitive retirement at the end of 2019, many of his clients were reluctant to accept that they would no longer have the benefit of his counsel.

In 1978, Alan and Shirley moved to a ranch property west of Williams Lake in the Chimney Creek valley. Alan pursued his passion for farming in his extensive garden and became a gentleman rancher, raising cattle and, with the help of any of his children or friends who were available, putting up hay. Shirley wisely had insisted on a pool at the new house, and their children, grandchildren and great-grandchildren spent many summer holidays at Grandma and Pa’s house. Although Alan did not play hockey as a child, he enthusiastically played goal in the outdoor hockey games at the ranch during the Christmas holidays, only occasionally hearing recriminations from a grandchild about a shot he should have stopped. He delighted in each of his grandchildren and great-grandchildren, encouraging and often provoking debate on a myriad of issues, from politics to sports. One of his grandsons said of his Pa: “It was never enough to just have an opinion or idea around Pa. He would ask you questions. He would challenge you. He would demand that you speak with grace, compassion and understanding.”

Alan was a respected lawyer, a trusted advisor to his clients, a mentor and friend to his colleagues and staff, a community leader, and a leader and contributor to the legal profession. Most importantly, he was a loving and much-loved husband, father, grandfather and great-grandfather. He is missed.

Eileen Vanderburgh and Barbara Vanderburgh, with assistance from Michael Griffin

Paul & Company

172 Battle Street, Kamloops, BC V2C 2L2

www.kamloopslaw.com

WHEN CONSIDERING MEDIATION, EXPERIENCE COUNTS

With over 900 mediations and a career spanning four decades, David Paul, K.C. has a proven record of results resolving disputes in diverse legal areas:

F Family Law

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WHEN YOU NEED THE FACTS

NEW JUDGES

By R.C. Tino Bella

The Honourable Judge Emmet Duncan

On December 21, 2020, Emmet Duncan was appointed to the Provincial Court of British Columbia. He has been assigned to the Fraser Region with chambers in Surrey.

Emmet’s swearing-in ceremony occurred on January 11, 2021. Given that it was held during the COVID-19 pandemic, it was a quieter affair than the normal swearing-in ceremonies in more normal times. Only close family (including Emmet’s wife Angela and their three children Avery, Atticus and Isla; his parents Margaret and Clive; his siblings Gareth and Fiona; and his brother-in-law Mike Pajic) and Associate Chief Judge Dohm were allowed to join in person.

However, many family members, friends and colleagues were also able to join virtually for this important event. Although Emmet’s swearing-in ceremony was physically attended only by a small number of people, his welcoming ceremony on May 20, 2022, held at the Surrey courthouse and presided over by Associate Chief Judge Dohm, was the opposite, reflecting the respect and esteem in which his family, friends and colleagues hold him.

Associate Chief Judge Dohm’s role in Emmet’s welcoming ceremony seemed very fitting given their longstanding connection. They had met more than 15 years earlier in the Crown office at 222 Main Street, when Emmet was a new prosecutor. Associate Chief Judge Dohm was a prosecutor before his appointment to the Provincial Court in late 2005.

Emmet was born in Vancouver. His parents were born and raised in Ireland, and they met as students at University College Dublin. They moved to Canada a couple of years before Emmet was born. Emmet’s parents were both academically motivated, and his father decided to start his career in

orthopaedic medicine in Vancouver, so the family put down their roots and settled in that city.

When Emmet was born, his mother dedicated herself to the family by supporting Emmet’s father in his career and raising their three children at home. Emmet and his younger sister Fiona became extremely close, in part because they are “Irish Twins”, born only 11 months apart. Emmet and his brother Gareth attended Vancouver College throughout elementary and high school. While attending Vancouver College, Emmet made many lifelong friends, some of whom he first met in grade 1, and who joined him at his welcoming ceremony.

What is apparent when you meet the Duncan family is that its members are all very tightknit, supporting each other through life’s ups and downs and always showing up for each other when needed.

During his youth, Emmet’s parents taught him the value of hard work, giving back to one’s community and empathy. His family would have Sunday night dinners in their dining room and discuss and debate current topics ranging from local current affairs to world politics. These discussions and his education led him to become very involved at school. He was the president of the student council and the valedictorian of his grade 12 class. He was particularly interested in Canadian politics and even signed his grade 12 yearbook “Look for me at 24 Sussex”, although he now claims that all he meant was that he wanted to visit that storied home and take a selfie. A skilful crossexaminer might point out that selfies were not invented until much later.

As much as his family and close friends respected Emmet’s interest in politics, they secretly thought he was too compassionate and too empathetic to ever be a political leader. They were relieved that over time, and especially while at university, Emmet’s interest in politics waned, and he discovered his love of the law.

After Emmet graduated from Vancouver College, he attended UBC where he obtained a bachelor of arts degree with honours in 1994, focused on the history of Indigenous peoples in British Columbia. Emmet is a voracious reader and writer, and he says that it was here, during his time at UBC, that he truly became a “critical thinker”.

After his B.A., Emmet attended McGill University in Montreal and obtained his bachelor of laws in 1997. In addition to the school’s reputation, there was something about this beautiful city that enticed him. He immersed himself in Montreal’s culture and life during his three years at McGill. Emmet was on the Great Distinction and Dean’s Honour List every year. He was third in his class and upon graduation received several awards, including the F.R. Scott Prize in Constitutional Law.

More importantly, and just like in every chapter in his life, Emmet made lifelong friends at McGill as well. Today, his biggest source of daily distraction is a chat group with more than a dozen friends from those days.

Law school ignited a passion in Emmet that required more education and more critical thinking, so he returned to UBC to follow that curiosity, obtaining a master of laws in 1998, studying under the great Professor John Borrows. His curiosity and thirst for knowledge were fulfilled while he researched and ultimately wrote and published his thesis exploring the incorporation of Indigenous perspectives and norms into the Canadian legal system.

Emmet then worked at Davis & Company (now DLA Piper) (“Davis”) for four years, first as an articled student and then as an associate. He was called to the bar of British Columbia in September 1999. He worked with several lawyers who mentored, guided, encouraged and supported him. Some of them later became judges of the Provincial and Supreme Courts as well as the Court of Appeal.

Emmet gravitated toward the Aboriginal law practice at Davis and in that small group became very good friends with senior lawyers who became cherished mentors, including Mike Carroll, K.C., Malcolm MacLean and Kathryn Denhoff. Emmet is now thrilled to call the latter two colleagues again on the Provincial Court.

Emmet established himself as a well-respected and accomplished lawyer at Davis.He practised in the general litigation department, which included complex Aboriginal litigation, bringing him into the B.C. Supreme Court, into the Federal Courts and, memorably, an opportunity to work with two of his mentors in a case at the Supreme Court of Canada.

Emmet left Davis in 2002 to better his craft as a litigator and to reconnect with his own philosophy of helping and serving others. He worked in the public sector as Crown counsel for six years, conducting many trials and cocounselling on many serious prosecutions. His love of the law was rekindled in a way that was exciting to him, and many lawyers have described him as excelling at this craft. His sense of fairness and justice were always at the forefront of his criminal law practice. He was extremely well respected by all participants in the criminal justice system, including defence counsel, court staff, sheriffs, accused persons and judges.

In 2008, Emmet sought a new challenge in his career. When asked by criminal defence counsel, Jonathan J. Israels, if he wanted to share office space and hang up his own shingle, Emmet decided that going into private practice and being his own boss was a new chapter in his life that he would like to explore. He opened his own criminal defence firm, Emmet J. Dun-

can Law Office. Upon his departure from the Crown Counsel office, this was written about him:

As everyone who has worked with him is well aware, Emmet is one of our best and brightest Crown Counsel. Through his combination of legal skill, dedication and unselfish attitude he has fulfilled his role to the highest standard and has made a huge contribution to every Crown office he has worked in …. While Emmet’s departure is a big loss for us, we can take consolation in two things. First, he is leaving to pursue a type of practice that he will find fulfilling and at which he will excel. Second, although we have lost a prosecution colleague, we have gained a trusted and respected defence adversary, as well as a go-to ad hoc prosecutor for difficult cases.

And thus, there was no lack of clientele for Emmet. Not only did he have his own professional reputation to rely on, but he also had many referrals from his former colleagues at the Crown. And while he did hang up his own shingle, due to the respect he garnered at the Crown he was also retained as ad hoc Crown counsel for the Criminal Justice Branch in two regions in the Lower Mainland during this time.

Emmet also found time to give back to the community. He participated with many organizations and on many committees, including the Trial Lawyers Association of British Columbia and the CBA Vancouver Criminal Law Subsection, teaching in UBC’s Advocacy course and being a mentorlawyer in the UBC Criminal Law Clinic. During his time with the UBC Criminal Law Clinic, he took on articled students and supervised them in real court settings. He gave back to the community by mentoring and supporting the younger lawyers, just as he had been mentored and supported throughout his career at both Davis and the Crown.

Emmet’s appointment to the Provincial Court reflects his love of working both independently and as part of a team. As described earlier, this has been reflected in his career choices over the past 20 years: first working as an articled student and then young associate at Davis, then moving to the Crown office, where the opportunities to work independently or as a member on a prosecution team existed, and finally working as a defence counsel on his own but sharing office space with other criminal defence lawyers and many students and associates whom he mentored.

Emmet attributes much of his success on this journey, from lawyer to judge, to the unwavering commitment and support of his wife, Angie. She is his biggest cheerleader and most important confidante. Her family has its own unique and compelling history, which he finds both humbling and inspiring. He credits the fact that she carried the load countless times, which allowed him to spend the many hours required during his years of public service and private practice to give to his work, his clients and his community as much as he was able to do.

Emmet’s desire to be part of a team is how he first met Angie. He was introduced to her by his softball teammates. It also seems fitting that with their three children, Emmet and Angie now have their own team atmosphere that Emmet loves and enjoys so much. Coming full circle, Emmet and Angie are now busy carpooling their three children to and from all their team sports and activities that they too have grown to love.

True to his nature, during his swearing-in ceremony, Emmet made note of the fact that he was very grateful to the many people in his life who have mentored and supported him during his legal career, and that without them, he may not have experienced the incredible journey to his new position of Provincial Court judge.

As one judge noted, “What really makes Emmet stand out as a candidate for appointment is his inherent sense of fairness and balance which he is able to maintain even in the most difficult situations … As a prosecutor he embodied the role of Minister of Justice, remaining objective at all times, and as defence counsel he is able to advocate forcefully and effectively for the accused’s interest while still treating all of the participants in the process with respect. I think he would preside over a courtroom as a judge in that same thoughtful, civil and humane matter. In essence, he sees the big picture in the justice system and knows that everyone has their story to tell, one that needs to be fully heard and understood.”

Emmet has been sitting on the Provincial Court bench for almost two years now. During that time, he has already established himself as a patient, fair and hardworking judge.

The Honourable Judge Nina Purewal

To many, Judge Harinder Nina Purewal’s appointment to the Provincial Court seems like a natural step forward in her impressive legal career. But for Nina, it was anything but natural. Born in 1980 in Surrey to first-generation Canadians from India, Nina had to pave her own way. In addition to the linguistic and cultural barriers that face many immigrants, Nina’s parents contended with longstanding health issues. Growing up in Duncan and Langford, Nina had to help her family in ways that many

of her peers did not. Despite this, Nina managed not only to excel academically, but also to be involved in extracurricular activities—including, notably, a 1998 performance in a Spice Girls cover band.

After graduating high school, Nina chose to stay close to home and attend the University of Victoria, where she could continue to support her family. At UVic, she completed a bachelor of arts degree in political science in 2002 and a bachelor of laws degree in 2005. During her studies, Nina continued her superwoman trajectory. The truth is that Nina was and is one of those people whose schedules make you want to take a nap. In addition to her academic and professional feats, she cooks, exercises and parties. In a letter to a friend during her first year of undergraduate studies, Nina explained that while her peers were distracted by attention from “all the new guys”, she, on the other hand, “barely [had] time to breathe” with “work, volunteering, & school”. Frankly, the rest of us were a little relieved that she too found her schedule exhausting.

Nina did not have lawyers in her family and instead came to a career in law from a true passion for justice. As a racialized woman with family living in India, Nina is deeply aware of the inequities in this country and abroad. She has devoted countless hours to important social causes, including most recently as a member of the boards of the Society for Children and Youth of BC, Continuing Legal Education Society of British Columbia and West Coast LEAF. Nina also volunteered for justice initiatives internationally, including from 2010 to 2011 in Dar es Salaam, Tanzania for the Tanganyika Law Society. It was Nina’s commitment to substantive justice that led her to apply for an appointment to the bench.

Nina began her legal career in 2005 as a civil litigator, first in Victoria and then in Vancouver, focusing on personal injury, helping those who had been injured to receive fair compensation. In 2009, she left private practice to work at Pivot Legal Society, where she practised poverty law, advancing the interests of the most vulnerable, including as criminal defence counsel. From 2011 to 2013, Nina went back to academia to pursue a master’s degree in International Human Rights from the University of Oxford. While completing this degree, Nina worked full-time as an advocate for the BC Representative for Children and Youth in Vancouver. Soon Nina was ready for a new challenge—she left urban living for the rural northwest of this province and joined the BC Prosecution Service.

When she first joined the Crown in 2013, Nina faced a steep learning curve, having limited experience with criminal prosecutions. Thankfully, she was a quick study and soon had carriage of complex and serious matters, including child sexual abuse and homicide files. Nina became a

resource to her colleagues on jury trials and digital evidence and was the one we called in a panic for ideas for cross-examination on our 15-minute court break. After only a few years, in 2015, Nina was appointed as Administrative Crown Counsel of the Smithers office. In 2020, she was promoted to Deputy Regional Crown for the Northern Region, responsible for supervising Smithers, Williams Lake, Prince Rupert and Prince George offices. She also managed the implementation of a region-wide virtual bail project.

As a mentor and supervisor, Nina drew upon both her experience as defence counsel and her rigorous academic training in human rights. When colleagues asked her opinion on an overly punitive bail or sentencing position, Nina would put down her notepad, look them in the eye, and say sharply, “Pretend you’re defence counsel. Pretend that was your client. What would you say?” Nina took the precepts of Gladue seriously and was often heard reminding her colleagues, “The accused is Indigenous—do you really need to send him to jail?!”

The hallmark of Nina’s mentorship style was extreme trust in her colleagues. She would assign you a trial that seemed out of your league but would tell you that you could do it and then, miraculously, you could and you did. Nina’s confidence was and is contagious. Nina also embodied her human rights background in her role in management. When one of her colleagues was worried about applying for a role at Crown while also trying to conceive a baby, Nina responded, “What? Didn’t you study human rights law? A pregnancy shouldn’t hold you back.” And true to her word, Nina made sure it did not.

In northern British Columbia, Nina was a trailblazer. She was one of very few senior female litigators of colour. Nina stood out both as a “brown girl” and as a sharp dresser—for departing from the rural dress code of flannel and Blundstones with her high heels and pencil dresses. Despite her impeccable style, Nina would often be asked if she had to come to Smithers to work at the Subway restaurant like the other Indian newcomers in town. At least outwardly, Nina never let this shake her confidence. For example, when Nina met the older white male lawyer who came to the Smithers Crown office to work as an ad hoc Crown, he asked her: “And who are you?” Without missing a beat, Nina replied: “Your boss.” The ad hoc Crown laughed and said, “Oh we’re going to get along just fine.” And they did. Because Nina is very likeable and has the best snort laugh, which she uses liberally.

Thanks to her sharp legal mind and likely also to that affable snort laugh, Nina has received many accolades for her successes—for example, a Crown Counsel Leadership Award in 2018, a BC Public Service Leadership Award

in 2018, and a Queen’s Counsel appointment in 2020. However, to us, what is more impressive is that this successful person lifts up the people around her. Nina shows us that the impossible is possible. She encourages us to be better versions of ourselves: to apply for post-secondary studies, to seek that promotion, to change careers, to travel and adventure, and to give back to our communities. She is loving and harsh at the same time, telling us how it is and how it should be, but for our own betterment. She is fiercely devoted to those she cares about. She is our lifelong friend and the auntie to our children. Her successes are our successes. We know that even though she sits up on a dais, Judge Purewal is one of us, a true member of “the People’s Court”. We are proud of you, Judge Purewal.

LETTER TO THE EDITOR

By R.C. Tino Bella*

Dear Editor,

Re: “Legal Anecdotes and Miscellanea” (2022) 80 Advocate 925

I have just finished perusing (and reading in full) some articles in the November 2022 edition of the Advocate, and two things arose or hit me:

1.There has been a strange death of the Grumble column sometime after the publication of the March 2022 edition and the publication of the November 2022 edition. Pray tell, why is that?; and

2.I just wanted to thank you so very much for your wonderful and at times humourous and entertaining column on the demise of the Crown in this latest edition.

In order for David Roberts, K.C., to now be a subject of his “fifth” monarch, he would have had

to have been born on or before 12:25 a.m. Greenwich time, January 21, 1936. Mind you his “first monarch”, His Majesty King George V, died at Sandringham, and I believe his practice was to always have the clocks at Sandringham posted one half hour later so that people would always arrive on time or even ahead of time, as he loved punctuality. Therefore, when his biographers track that as the moment of his death, they may be relying on the remembrances of those present at the old King’s death, and their notations may have been based on “Sandringham” time, which would have made the moment of the old King’s death actually 11:55 p.m. Greenwich time and thus the previous day of January 20, 1936.

Mr. Roberts’s second monarch, His Majesty King Edward VI, very much detested this adjustment of

the clocks by his father, and one of the first things he ordered done was for that practice to cease. To my knowledge, neither Mr. Roberts’s third monarch, His Majesty King George VI, nor his fourth monarch, Her Majesty Queen Elizabeth II, reverted back to the old King’s practice in this regard. Although I do think that our new King, His Majesty King Charles III, in many ways resembles in character and in habits those of his great-grandfather, I would doubt he would engage and

replicate this particular odd practice. But that is not to say, and with all due respect and reverence, that he may not adopt others.

Best regards,

Michael D. Donison

The only explanation we have for a lack of Grumbles is that we are obviously not writing or printing as many offensive things as we used to. No matter what he does with the clocks, King Charles will most likely not reign as long as his mother did. – Ed.

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LEGAL ANECDOTES AND MISCELLANEA

By Victoria Luxford*

GARDENS AT THE VANCOUVER LAW COURTS

At the Vancouver Law Courts, plants are omnipresent—except, perhaps unfortunately, in the courtrooms themselves.1 Whether one is conferring with opposing counsel under the glass roof or taking a moment in one of the many secluded outdoor spaces Robson Square offers to steel oneself for final submissions, the plants of the Law Courts provide a soothing backdrop to some of our more demanding days. And as with the content of many of our best legal submissions, these plants were conscientiously and precisely chosen and arranged.

The selection of plants (or in some cases, given the evolving nature of the garden, of their predecessors) was the work of Cornelia Hahn Oberlander, a landscape architect. Oberlander was born in Germany2 and spent her early years in the “leafy suburbs” of Berlin.3 Her mother, a professional horticulturalist, was the author of several books about gardening with children; her father, an engineer, died in 1933 in an avalanche in Switzerland.4 The family fled Germany in 1938, among the many German Jews escaping Nazi persecution; they landed in New York in February 1939, and thereafter moved to a farm in New Hampshire.5

Oberlander was intent on landscape architecture from a young age, initially inspired by a painting she saw at the age of 11 and further motivated by her work in her garden in Berlin.6 In 1940, she was accepted by Smith College (in Northampton, Massachusetts) for an interdepartmental major in architecture and landscape architecture.7

In 1942, following the attack on Pearl Harbour, the Smith College Board of Trustees closed its school and transferred the remaining students to the

* Victoria Luxford is an associate at Farris LLP and an enthusiastic indoor gardener.

Harvard Graduate School of Design, which was to admit women for fulltime enrolment for the first time.8 Oberlander enrolled in 1943 and graduated in 1947 with a bachelor of landscape architecture degree, having taken some time off in the course of her studies (due to her mother’s meddling) to work on her drafting skills in an architectural office.9

While at Harvard, Oberlander met her future husband, Peter Oberlander, at a picnic at Walden Pond.10 They married in 1953 and eventually settled in Vancouver11 after several years moving between Canada and the United States.12 They had three children, whose play helped to inspire Oberlander’s designs.13

Before Robson Square and the Law Courts, Oberlander cut her teeth (and then some) on a variety of projects. For example, she worked in Philadelphia and New York as a planner, “spearheading community design methods that involved the voices of the disenfranchised”.14 She also worked on residential housing projects, as well as children’s playgrounds.15 For Expo 67, she was hired to design an outdoor environment for the Children’s Creative Centre at the Canada Pavilion; she designed this playground to give children the opportunity to “run, climb, crawl, build, dig, and get wet”.16

In 1974, architect Arthur Erickson’s office approached Oberlander to make a proposal for the proposed Robson Square courthouse. Erickson’s master plan featured a “governmental monument ‘lying on its side’”.17 Oberlander responded enthusiastically with a number of technical questions and ideas, and was asked to join the team.18

This was a challenging project. For one, growing plants on the roof of this recumbent government building, as they contemplated, required innovation; it apparently took Oberlander three years to convince others on the project to use a lightweight growing medium composed of peat, sand and perlite. Oberlander researched and made use of the emerging concept of drip irrigation. Her work on the green roofs “helped to insulate the interior spaces and they were planted with low-maintenance species”.19

The overall concept for the space was integration; “[b]y locating a project that integrated government, judicial, public, and private uses with entertainment and cultural programming at this crossroads, it was planned that the city’s core would be livelier day and night”.20 The three-block long structure involved plantings, water features and paved areas for walking and sitting, as well as “complex spatial relationships between building elevation, street level, and below grade spaces”.21 As Oberlander later noted, “[p]eople come here to sit, to contemplate, to walk through”.22 The diverse architecture of the space—from old courthouse to new courthouse—would be tied together by the landscape.23

Oberlander’s planting design encompassed over 50,000 shrubs and trees. The colour palette of the plant choices was broadened from a somewhat monochromatic theme after Erickson reportedly “pointed out that there are many greens”.24

In the central block, there were three types of planting systems—walkway, flying planters and box planters—and “[e]ach planted area had its own plant palette and arrangement in relation to the structure”.25 The plantings on the walkway included rhododendrons, laurel, mugo pines, kinnikinnick and ivy. In the box planters, Oberlander placed lodgepole pines, Japanese maple and magnolia. The flying planters (“the narrow trays that cantilevered from the façade of the provincial government buildings on Block 61 and the Law Courts on Block 71”) contained memorial roses and clipped laurel.26

At the corner of Robson and Hornby Oberlander placed a mound; this was “planted to resemble a small clearing in a woodland with a layering of lodgepole pines and maples underplanted with rhododendrons, photinia, and vines, and with an open lawn crowning the top of the mound”.27 Oberlander herself described this as an “enchanted forest”.28

On the northwest sides of Blocks 61 and 71, Oberlander (at the insistence of the city council) planted red sunset maples, although Erickson originally selected London Plane trees. 29 They were planted 15 feet on-centre, 30 instead of 30 feet on-centre—with this placement, people could feel protected from the sun and the rain.31 The rejected London Plane trees were later used in the 1981 renovations by which the old courthouse was converted to the Vancouver Art Gallery, arranged in a row to connect this block with the central block.32

Trees were particularly important to Oberlander. In the 1977 book Trees in the City, which she co-authored with Ira Bruce Nadel (and illustrator Lesley R. Bohm), the authors wrote: “To look up and see a tree before a large imposing building provides a sense of human scale in an inhuman cityscape. The individualization of space shatters the anonymity of city life”.33

For the interior of the courthouse, Oberlander chose a variety of plants, including ferns, peace lilies, palms, umbrella trees, ivy and figs.34 The plant list includes items with evocative names such as “Madagascar dragon” as well as two types of figs: “creeping” and “weeping”.35

The indoor plants were selected to complement the design of the Law Courts’ lobby, the dimensions of which were apparently based on the law courts of Pompeii; correspondingly, Oberlander selected plants that an archaeologist had identified in excavations at Pompeii.36 In a 1981 article

(aptly titled “An Oasis in the City”), Oberlander wrote: “The choice of plants for the glass-roofed Courthouse (Block 71) are the plants found in Mediterranean climate (Zone 10) since the Courthouse provided an indoor regime of a warmer zone. The size of the public entrance gallery is roughly the same size as that of the Roman basilica in Pompeii. Therefore, plants were chosen that were found among the excavation of Pompeii, such as the orange tree and variegated ivy”.37 Oberlander also wrote that the plane trees that were installed were from seeds “brought to Vancouver by Dr. W. C. Gibon in 1970 and were taken from the original Plane tree on the island of Cos (Greece) under which Hippocrates is said to have taken the oath of medicine about 400 B.C.”.38

Of course, over time, the identities of many of these plants have shifted. Unfortunately, the orange trees originally selected for the Law Courts’ lobby, which were sourced from an abandoned orchard in California and became the source themselves of juice and marmalade, apparently did not meet with judicial approval, and they were replaced with indoor ficus trees.39 Some plants were removed to make way for ventilation grates.40 After the Olympics in 2010, structural maintenance necessitated the removal of major portions of the plantings; some of this was maintained offsite during this time.41

Oberlander herself kept an eye on the shifting landscape. In the documentary City Dreamers, one scene features Oberlander at Robson Square. During the scene, she indicated that one of the plants did not belong with the pine tree it was planted with. At one point, she questioned a man who was doing a “visual review” of the area; she said, “You’d better do that, because things don’t look good” and told him that she was the landscape architect.42 In a 2015 presentation, Oberlander similarly criticized the use of flower pots; she said, “The flower pots I would like to eliminate, but the gardener puts them there every year; but just before I left, I was told no more.”43

During and following her work on Robson Square and the Law Courts, Oberlander worked on many other high-profile landscapes. For example, in designing the landscape for the Museum of Anthropology at the University of British Columbia, she “conceived the landscape as a place to offer visitors experiences with plant specimens valuable to the livelihood of the First Nations”.44 At the National Gallery of Canada, Oberlander designed three major areas to evoke the subjects of the art displayed indoors.45

Oberlander passed away at the age of 99 on May 22, 2021, as a result of complications of COVID-19.46 She had earned numerous awards for her work, and was made a Companion of the Order of Canada in 2018.47 Just

days before she passed away, she was awarded the City of Vancouver’s highest award: the Freedom of the City.48

Oberlander’s landscapes exhibit care for both those using the space, as well as those plants growing within it. One interviewer and commentator noted, “[t]hroughout all her projects, one clearly sees a concern for those using or inhabiting the spaces”.49 The architect Moshe Safdie is quoted as saying, “In Cornelia’s landscapes, you never get a sense that plants are unhappy. In fact, they are happy”.50

ENDNOTES

1. However, on a recent appearance in courtroom 60, the author was delighted to see the ivy visible through the windows. It brought to mind the words of Michael Leccese in describing Oberlander’s work, that “one of Oberlander’s favorite themes [was to] elevate greenery from the garden and the plaza to the rafters where people work”: Michael Leccese, “Canadian Modern” in Profiles in Landscape Architecture (Washington, DC: The American Society of Landscape Architects, 1992) at 71.

2. As to the date of this key event, Oberlander apparently claimed one date as her “official” birthday to one of her biographers (June 20, 1924), although admitted that was not “in truth” her birthday (which was in 1921): Kathy Stinson, Love Every Leaf: The Life of Landscape Architect Cornelia Hahn Oberlander (Toronto: Tundra Books, 2008) at 3.

3. Susan Herrington, Cornelia Hahn Oberlander: Making the Modern Landscape (Charlottesville: University of Virginia Press, 2013) at 13.

4. Ibid at 13.

5. Ibid at 11–13, 16; Stinson, supra note 2 at 1–17.

6. Cornelia Hahn Oberlander, “Forging the Way” in Amery Calvelli & Hilary Letwin, curators, Cornelia Hahn Oberlander: Genius Loci (Art Gallery of Alberta, 2021) at 14; Stinson, supra note 2 at 8–9; Herrington, supra note 3 at 13.

7. Herrington, supra note 3 at 16.

8. Ibid at 22.

9. Ibid at 23, 27, 30. Apparently, Oberlander’s mother considered her daughter’s drafting skills to be “insufficient”: ibid at 27.

10. Hillary Letwin, “Dancing to the Music of Our Time: Residential and Public Projects by Cornelia Hahn Oberlander” in Calvelli & Letwin, supra note 6 at 23.

11. Oberlander is quoted as describing Vancouver as “a tiny town, with no theater, no great art gallery, and only two high-rises”, saying that here she was able to “conquer new ground”: Herrington, supra note 3 at 57.

12. Ibid at 56.

13. For example, watching one of her children build sandcastles reportedly inspired her to “use earthen mounds in more of her landscape designs”: Stinson, supra note 2 at 27.

14. Herrington, supra note 3 at 31. See also Stinson, supra note 2 at 25–26.

15. Stinson, supra note 2 at 29.

16. Ibid at 31; Herrington, supra note 3 at 103.

17. Herrington, supra note 3 at 123–24.

18. Ibid at 124; Stinson, supra note 2 at 39–40.

19. Herrington, supra note 3 at 127–28; Stinson, supra note 2 at 40.

20. Herrington, supra note 3 at 126.

21. Ibid at 128.

22. City Dreamers (First Run Features, 2018).

23. Herrington, supra note 3 at 128.

24. Ibid at 129.

25. Ibid

26. Ibid at 129–30.

27. Ibid at 131. For “Trees on Structures (plazas, roofs, parking garages)”, co-authors Ira Bruce Nadel and Cornelia Hahn Oberlander list pines, Japanese maple and crab apple in Trees in the City (Toronto: Pergamon Press, 1977) at 37.

28. Cornelia Hahn Oberlander, “An Oasis in the City: Robson Square and the Law Courts” (1981) 2 Landscape Architecture 2 at 10 [“Oberlander (1981)”].

29. Herrington, supra note 3 at 131–32. London Plane trees and Red Maples are (along with Tulip trees) listed under “Arterial (a major traffic street)” in Trees in the City, supra note 27 at 37.

30. Herrington, supra note 3 at 132.

31. Isabella Stewart Gardner Museum, “Landscape Lectures: Cornelia Hahn Oberlander” (22 September 2015) (video), online: YouTube <www.youtube.com/ watch?app=desktop&v=QaI_1PJYfwI>.

32. Herrington, supra note 3 at 136.

33. Supra note 27 at 19.

34. Oberlander (1981), supra note 28 at 13. The complete “indoor plants” plants list (by their common name) is given as follows in Oberlander’s 1981 article: weeping fig, peace lily, “Bella”’ neanthe bella palm, “Rooseveltii” Roosevelt fern, umbrella tree, lady palm, grape ivy, creeping fig, Madagascar dragon, Hawaiian umbrella tree, glory bower, heart shaped philodendron, cornstalk plant, reed palm and areca palm.

35. Ibid at 13.

36. Herrington, supra note 3 at 135.

37. Oberlander (1981), supra note 28 at 11.

38. Ibid at 12.

39. Herrington, supra note 3 at 135.

40. Ibid at 138.

41. Ibid at 139.

42. Supra note 22.

43. Isabella Stewart Gardner Museum, supra note 31.

44. Herrington, supra note 2 at 156.

45. Ibid at 165.

46. Penelope Green, “Cornelia Oberlander, a Farsighted Landscape Architect, Dies at 99”, The New York Times (9 June 2021), online: <www.nytimes.com /2021/06/09/arts/design/cornelia-oberlanderdead-coronavirus.html>.

47. Ibid

48. City of Vancouver, “Cornelia Oberlander”, online: <vancouver.ca/your-government/cornelia-ober lander.aspx>.

49. Martien de Vletter, “It Is All About Grading” in Calvelli & Letwin, supra note 6 at 87.

50. Leccese, supra note 1 at 71.

Charitable Number: 11881 9036 RR0001

FROM OUR BACK PAGES

By D. Michael Bain,Q.C.

A MATTER OF FORM*

By the Honourable Allan Thackray, Q.C.

In an article published in the Advocate, entitled “Civil Appellate Practice”,1 I spoke at some length about factums, but not much about form. I now recognize that this topic should have received more attention. Form is important in any written communication that is designed to inform or persuade.

One response I received was from a former colleague who suggested I read the book Making Your Case: The Art of Persuading Judges, 2 by Antonin Scalia and Bryan A. Garner. The authors emphasize that written submissions will be persuasive only if they are brief, objective, simple and written in straightforward English, and contain a clear identification of the issues. These are all matters of form which, for the purposes of this article, I define as including grammar, capitalization, punctuation, font, footnotes, margins, archaic language and any other matter apart from the substance of the document.

Form is important because it is impossible to concentrate on the substance of any written document when one is constantly jolted by repetitive errors in form. Furthermore, errors in form, if repetitive, attract adverse attention to the law firm. They result in judges wondering, often aloud, “How could that law firm allow such a product to be filed?”

BREVITY

Brevity is probably the most important issue I mention in this article. It is the most breached of all the rules of persuasive writing. A good argument, whether written or oral, is the product of lengthy thought. The “product”, like good scotch whisky, should be the distillation of that lengthy process. I say more about brevity in the section dealing with factums.

EMOTION

Written submissions for legal purposes should be objective. Remember, you are speaking on behalf of a party, you are not the party. Judges relate the form and tone of the argument to counsel. Scalia and Garner say this:

Don’t show indignation at the shoddy treatment your client has received or at the feeble and misleading arguments raised by opposing counsel. Describing that treatment and dissecting those arguments calmly and dispassionately will affect the court quite as much. And it won’t introduce into the proceeding the antagonism that judges heartily dislike. Nor will it impair your image as a reliably rational and even tempered counselor. Ideally, you should evoke rather than display indignation.3

CAPITAL LETTERS

The use of capitals has become epidemic. In the book Painless Grammar, by Rebecca Elliott, Ph.D., there is this tongue in cheek warning: “Don’t Fall into the Cap Trap. Some Writers think every Word they Capitalize suddenly becomes Exciting or Important.” 4 That trap was sprung in a factum I recently read:

The Respondent, formerly the Defendant, knew the Appellant had been charged by the Police with Robbery, Assault Causing Bodily Harm, Common Assault, Intent to Resist Arrest and Dangerous Operation of a Motor Vehicle. Some of the Offences were committed against both the Police and civilians.

I wonder why “civilians” did not get the same treatment as “police”. The McGraw-Hill Handbook of English says: Capitalize proper nouns. Those include names of people, a particular member of a class, countries, states, geographic areas, streets, deities, days of the month and months, historic events, eras, holidays and races. Examples: Rover, Michael, Sunny Acres, Don Valley Parkway, Toronto, Jack Dempsey, Eiffel Tower

Do not capitalize common nouns. A common noun is a name given to all members of a class: dozen, child, farm, road, city, boxes, boy, structure. 5

I will add to that list the following: plaintiff, defendant, order, statement of claim, statement of defence, list of documents, summary trial, judge, courts, writ.

UNNECESSARY DEFINITIONS

There is no need to define the Snafu Scientific Research, Development and Sales Company by saying “(hereinafter the ‘Snafu Company’)” unless by some extraordinary coincidence there are two somewhat similarly named companies.

Or, if your case is all about the minister of the environment, there is no need to define him/her as (“the minister”). Your audience should not be treated as a bunch of dummies. No one will think you are speaking of the minister of defence.

ACRONYMS

Another escalating practice is the use of acronyms. Although they are spacesaving, their overuse use is detrimental to the persuasiveness of the submissions. Acronyms emasculate both meaning and feeling.

Some titles are lengthy and cumbersome. However, they can be shortened and retain meaning. For instance, the Tobacco Damages and Health Care Costs Recovery Act: rather than call it TDHCCRA, use Costs Recovery Act. If a company is called “Snafu Scientific Research, Development and Sales Company”, do not use SCRDCS; use “Snafu Company”.

The Honourable Daniel M. Friedman, in Appellate Practice Manual , 6 wrote that it is not unusual to read such as the following in a legal brief:

The Port Association of Freight Forwarders (PAFF) entered into an Agreement Covering Loading Practices in the Inner Harbor (ACLPIH) with the Seattle Chapter of the Union of Warehousemen and Stevedores (SCUWS).

Several pages later, by which time the acronyms were not fresh in the mind of the reader, the following appeared:

Under the ACLPIH, SCUWS was required to consult with PAFF before taking action.

There was no need to define the Association, the Agreement or the Union, or to use acronyms. The following sentence would have conveyed the message, which the above sentence did not:

Under the Agreement, the Union was required to consult with the Association before taking action.

As of 5 December 2009, the author of this Manual, His Honour Judge Friedman, at age 93, was sitting regularly on the Court of Appeal, Federal Circuit. I thought the Honourable Mary Southin, Q.C., would take steps to have annulled the requirement for federal judges in Canada to retire at age 75. I have been waiting for three years.

FACTUMS

While I deal with factums separately because there are specific rules governing them, any suggestions I have made above apply to them, and any general remarks in this section apply to any submission designed to persuade.

Factums are the backbone of all appeals. They are studied by the judges well before the appeal is heard. They are the basis for the oral arguments. The factums are the only printed and complete argument available to the judges when considering and writing their reasons for judgment.

Arial 12 is the style of font required. Arial) was chosen by the court as the most readable font, yet Times New Roman keeps cropping up. As to size, it is not acceptable to reduce the size in order to squeeze a factum within the 30-page limit, nor to widen the margins to accomplish the same end.

Reasons for judgment from the British Columbia Court of Appeal, as well as from other courts, use Arial 11 when replicating portions of other cases. So, it can be said that lawyers are not given the flexibility accorded to judges. The reason may be that so many judges are elderly and have failing eyesight. In any event, the rule is: “Not one word in a factum is to be in other than Arial 12.”

Footnotes persist in spite of frequent criticism of their use by the court. Factums are not textbooks. They should be an easy read. Footnotes are not well received by the court because they break the train of thought. As well, they are viewed as an attempt to overcome the space allotment.

Brevity is as much a factor in factums as in any form of written submission, and maybe more so in that appellate judges have an enormous number of factums to read each week. Most factums need no more than 15 pages of the 30-page allotment, yet few come in at that figure. Scalia and Garner say this:

Ponder this: judges often associate the brevity of the brief with the quality of the lawyer. Many judges we’ve spoken with say good lawyers often come in far below the page limits—and that bad lawyers almost never do. Brevity requires ruthlessness in wringing out of your argument everything that doesn’t substantially further your case: entire points that prove to be weak; paragraphs or sentences that are unnecessary elaboration; words and phrases that add nothing but length.7

Many words and phrases are overused in factums. Others are simply unnecessary. The most commonly overused word is “that”. For example, “The court said that...”

The “ibids” and “supras” are unnecessary.

The use of “learned” (indeed, it is usually written as “Learned”) when referring to the trial judge is unnecessary and, to my way of thinking,

sounds like pandering. However, I must concede that some of our Court of Appeal judges still use that prefix.

The phrase “it is respectfully submitted” should be used sparingly. The whole of the factum is a submission, and it is not necessary to repeatedly make the point.

An unnecessary and to my way of thinking incorrect phrase is “as she/he then was”. If you write about Pierre Trudeau and deal with what he said or did when Minister of Justice, you do not say, “as he then was”.

Overused words and the use of archaic phrases and language not only lengthen the text, but become a distraction to the reader. You should not do anything to distract a judge of the Court of Appeal.

AFTERTHOUGHTS

Since writing the above I have received some suggestions. One was from Mr. Christopher Harvey, Q.C., editor of the Advocate. He suggested I refer to certain sections of H. Montgomery Hyde’s book The Life of Lord Birkett of Ulverston. I did so and noted the following passages. The first refers to Lord Birkett’s reflections on the Nuremberg trials:

Birkett’s preoccupation with the repetitious use of certain words and expressions both by counsel and witnesses caused him to list several...which, as he jocularly noted in his diary, seemed to him in his “tired state of mind” to be “crimes against humanity”, in addition to those with which the defendants were charged. In particular, he noted the following: argumentation, orientation, activated, motivation, finalize, objectivity, visualize, concrete observations, and reprivatization ...8

The author also wrote about Lord Birkett’s presidential address to The English Association, entitled “The Magic of Words”.

Birkett remarked that, if ever he were left on a desert island and allowed one book, he would take the 13 volumes of the Oxford English Dictionary and argue that they constituted a single volume. He went on to say:

You cannot spend long years in the law, as I have done, without being conscious that the lawyer for many of his purposes—his statutes and wills and conveyances and the like—must resolutely eschew the words that have colour and content himself with the “hereinbefores” and “aforesaids” in order to achieve precision. But the lawyer has moments when he, too, may employ the words of colour, as in that noble piece of English which made up the oath of the foreman of the grand jury in other days, or in the judgments of men like Lord MacNaghten, Lord Sumner, and the great and distinguished father of our distinguished chairman today [Lord Birkenhead]...

In a language like English it is sometimes said there are no synonyms; there is the one perfect word for the occasion. But it yet remains true that we have many words in use where it is difficult to find any real difference of meaning, but there may be this tremendous difference in “colour” or

quality. It was said by that great authority, Jesperson, that when Canning wrote the inscription which appears on the monument to Pitt in Guildhall, an alderman expressed grave displeasure at the words Canning used, which were: “He died poor” and the alderman wished them to be changed for the words “He expired in indigent circumstances”. It approaches too nearly to a good joke for me to be quite satisfied of its truth, but it illustrates this use of words about which I am speaking.

It is my unfortunate lot to hear sometimes in cases concerning the Rent Act phrases such as “He was evacuated to alternative accommodation”, instead of “He was sent to another home”. Under certain rooms on the plan were the resounding words “ablution cubicle” but it turned out to be an ordinary washroom, which seemed a little disappointing after the promise of the original description. On that occasion I learnt further that “long-term ablution” was the phrase used when you were speaking of a bathroom, and “short-term ablution” when you were merely speaking of a wash-room.

So when I hear of targets, and overall targets, and global targets, and things being adumbrated or visualized, or finalized, or indeed envisaged, or circumstances eventuating or transpiring, I think of that other aim of this Association, “To uphold the standards of English writing and speech”, and I try to act accordingly when it lies in my power.9

I wonder what Lord Birkett would have said about the following from an article in the Advocate:

In 1948 he was called to the bar of [province deleted] and in 1954 he married [name deleted], his wife for 55 years.

While on a somewhat different topic than my article, I think it worthwhile to mention what Lord Birkett said about the desired qualities of an advocate.

He said an advocate should be courageous, resolute, able to make up his mind and take decisions and stand by them. He should be courteous and good-mannered, able at all times to control his temper, severe when severity is demanded and gentle when gentleness brings its own rich reward. Lord Birkett summarized this as follows:

In a word, the advocate should bring all the qualities of his own personality to the great task of persuasion and employ them as the circumstances dictate.10

On the art

of persuasion

Lord Birkett said:

[T]he advocate must have made himself master of all the facts; he must have a thorough understanding of the principles and rules of law which are applicable to the case and the ability to apply them on the instant; he must gauge with accuracy the atmosphere of the court in which he pleads and adapt himself accordingly; he must be able to reason from the facts and the law to achieve the end he desires and he must above all have mastered the art of expressing himself clearly and persuasively in acceptable English.11

On several occasions lately the book Eats, Shoots and Leaves by Lynne Truss has been brought to my attention. (If you put the word “pandas” at the beginning of the title and do a bit of revising you might get the joke.) While an alleged “#l New York Times best seller”, it does not make for bedtime reading. The first 60 pages are about the use, or misuse, of apostrophes.

The section on commas is more interesting. As a judge I had many legal assistants and law clerks who consistently inserted a comma after the third word in every sentence. (In the preceding sentence a comma would appear after the word “judge.”) The author defined this as “commaphilia”. On the other hand she said:

Meanwhile, lawyers eschew the comma as far as possible, regarding it as a troublemaker; and readers grow so accustomed to the dwindling incidence of commas in public places that when signs go up saying “No dogs please”, only one person in a thousand bothers to point out that actually, as a statement, “no dogs please” is an indefensible generalization, since many dogs do please, as a matter of fact; they rather make a point of it.12

ENDNOTES

1. (2008) 66 Advocate 525.

2. Eagan, MN: West Publishing, 2008.

3. Ibid at 34.

4. (Hauppauge, NY: Barron’s Educational Series, 1997) at 7.

5. 2nd Can ed (Toronto: McGraw-Hill, 1970) at 172.

6. Friedman, Appellate Practice Manual, Priscilla M Schwab ed, 1992. The passages quoted are from Scalia, supra note 2 at 120.

7. Supra note 2 at 98.

8. Norman Birkett: The Life of Lord Birkett of Ulverston (London: Hamish Hamilton, 1964) at 515.

9. Ibid at 550.

10. Ibid at 553.

11. Ibid at 554.

12. Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation (New York: Gotham Books, 2004) at 77 in the illustrated edition.

BENCH AND BAR

Jane Austen’s Pride and Prejudice was first published a remarkable 210 years ago, in January 1813. Pride and Prejudice, as well as Austen’s other novels, have been cited in numerous court decisions and legal articles since that time. Of course, none of Austen’s novels has a cast of characters that rivals our own. Read in this Bench and Bar of the dashing colleagues who blend sense and sensibility in just the right proportion.

Todd R. Bell joins Farris, having moved from Basran Robin & Bell. Katie Sykes, a professor at Thompson Rivers University, takes up a post at Lawson Lundell. John Trueman lands at Allen / McMillan, having previously been with Macushla Law. Dustin C. Marnell moves from Horne Coupar to the Westshore office of Infinity Law in Victoria. Leaving MacLean Family Law, both Karsten Erzinger and Audra M. Bayer join FH&P Lawyers in Penticton and Kelowna, respectively. Mandell Pinder welcomes aboard Betty Nguyen from her in-house role at City of Abbotsford and Nicole Iaci from Bram Rogachevsky Law Corporation.

Elizabeth Lyall, K.C., leaves Fasken to commence a full-time mediation practice with CMB Mediations. Virginia K. Richards moves to Clark Wilson from Henderson Heinrichs. Jeff Hernaez departs Lawson Lundell to join Olthius van Ert. Jasmeet K. Wahid leaps from Kahn Zack Ehrlich Lithwick in Richmond to Aaron Gordon Daykin Nordlinger. Robin A. Dean moves to Clark Wilson from Mandell Pinder. Cecilia Barnes moves from her inhouse role at Owl.co to join Lawson Lundell’s Vancouver office. Mario Checchia takes a seat at Branch MacMaster, leaving Guild Yule. Jimmy S. Burg lands at Hamilton Duncan from Gowlings in Vancouver. Also new to

Lawyers who have moved their practices should e-mail details of their past and present circumstances to Peter Roberts, K.C., at <benchandbar@the-advocate.ca> to ensure an appearance in “Bench and Bar”. Note that we do not report changes in lawyers’ status within their firms (from associate to partner, for example) other than in cases where persons formerly articled have been hired as associates.

Hamilton Duncan are Ellen Ripley, previously with the City of Coquitlam, and Jessy Khind, formerly legal counsel with BC Lottery Corporation. St. John McCloskey (who has never had to tell anyone how to pronounce his first name) moves from Thorsteinssons to join Clark Wilson in their tax group.

Justice Ronald A. Skolrood was recently elevated to the B.C. Court of Appeal, replacing Justice G.B. Butler, who elected to become a supernumerary judge effective April 1, 2022.

The maternal grandfather of Pride and Prejudice’s heroine Elizabeth Bennet “had been an attorney in Meryton”; his clerk, Mr. Phillips, married Elizabeth’s aunt.

The B.C. Supreme Court welcomed as new justices each of Joseph M. Doyle, K.C., Kevin D. Loo, K.C., and Anita Chan. Justice Doyle replaces Justice K. Horsman (Vancouver), who was elevated to the Court of Appeal on April 19, 2022. Justice Loo replaces Justice J.R. Groves (Vancouver), who elected to become a supernumerary judge on June 11, 2022. Justice Chan replaces Justice G. Choi (Vancouver), who resigned on July 14, 2022.

Margaret (Meg) E. Gaily was appointed as Registrar of the B.C. Supreme Court. She leaves the research group of Lawson Lundell, who will miss her.

In Whitfield v. United States, 574 U.S. 265 (2015), the U.S. Supreme Court considered the meaning of the word “accompany”. Justice Scalia, writing for a unanimous court, noted that “[f]ederal law establishes enhanced penalties for anyone who ‘forces any person to accompany him’ in the course of committing or fleeing from a bank robbery. 18 U. S. C. §2113(e)”. In the case before the court, a bank robber, “fleeing police after a botched bank robbery, entered the home of 79-year-old Mary Parnell through an unlocked door. Once inside, he encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away….). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby.” Justice Scalia noted: Congress enacted the forced-accompaniment provision in 1934 after “an outbreak of bank robberies committed by John Dillinger and others.”

Carter v. United States, 530 U. S. 255, 280 (2000) (GINSBURG, J., dissenting). Section 2113 has been amended frequently, but the relevant phrase—“forces any person to accompany him without the consent of

such person”—has remained unchanged, and so presumptively retains its original meaning….

In 1934, just as today, to “accompany” someone meant to “go with” him. See Oxford English Dictionary 60 (1st ed. 1933) (defining “accompany” as: “To go in company with, to go along with”). The word does not, as Whitfield contends, connote movement over a substantial distance. It was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance …. English literature is replete with examples. See, e.g., C. Dickens, David Copperfield 529 (Modern Library ed. 2000) (Uriah “accompanied me into Mr. Wickfield’s room”); J. Austen, Pride and Prejudice 182 (Greenwich ed. 1982) (Elizabeth “accompanied her out of the room”).

It is true enough that accompaniment does not embrace minimal movement—for example, the movement of a bank teller’s feet when the robber grabs her arm. It must constitute movement that would normally be described as from one place to another, even if only from one spot within a room or outdoors to a different one. Here, Whitfield forced Parnell to accompany him for at least several feet, from one room to another. That surely sufficed.

The B.C. Provincial Court bench was recently boosted with the appointments of Judge David K. Simpkin, formerly with the Crown in Surrey, Judge Lynett Jung, from the BC Prosecution Service, and Judge Tim C. Hinkson, from Guild Yule.

In case you did not realise it: “Courting behaviour and relationships between men and women are vastly different today than in the days of Mrs. Robinson and Mr. Cumming, whose case came to court nearly 70 years prior to the publication of Jane Austen’s first novel, itself a study in quaint (and outdated) manners and customs”: P.S. v. H.R., 2016 BCSC 2071.

Timothy J. Delaney of Lindsay Kenney was the successful candidate in the November 2022 by-election for District No. 1, Vancouver, and was elected as a bencher of the Law Society. Congratulations to Tim and thank you to those who put their hats in the ring for this vote: Joyce Johner, Nikki L. Charlton and Nazanin Aram.

“Jane Austen’s House” museum in Chawton, Hampshire (the home in which the author lived her last eight years, during the time her novels were published) describes itself as the “most treasured Austen site in the world”. Merchandise that it sells includes a “range of beautiful cotton nighties” (“Bring out your inner Jane Austen heroine”) and the “Jane Austen” model rubber duck (“dressed to impress in a light blue gown, blue ribbons and … turquoise ring”, with “a copy of Pond & Prejudice under her wing” and “[p]erfect for any Austenista’s bathroom!”).

The Vancouver Bar Association held its 80th Annual General Meeting on November 17, 2022, at the Hotel Vancouver. This year’s recipient of the Peter S. Hyndman Mentorship Award was Nathanson Schachter & Thompson’s Karen Carteri, who gave a speech recognizing those who mentored her and included an articling experience that gave new (and literal) meaning to the expression “trial by fire”.

Jason Newton slid into the lean and slippered pantaloon of Past President, while Niall Rand assumed the role of President and bon vivant. Heather Doi , who just finished off her second term as a board member, was acclaimed as Vice President. Zachary Rogers, in a staggering “come from behind” acclamation, continues as Secretary/Treasurer.

The following individuals, in addition to Ms. Doi, ended their two-year terms on the board: Ryan Laity, Priscilla Wingenbach, Paula Krawus, Wendy Zhang and Megan Young. The members are grateful for their service. Meanwhile, after a thorough debate, a canvassing of the issues, some enormous and raucous rallies at huge stadiums and the traditional exchanging of drinks tickets, the following individuals were elected to the board: Bronwen Black, Mia Laity, Joey Levesque, Neal Parker, David Penner and Caroline Senini. Congratulations to all the candidates for running.

President Rand thanked outgoing Past President Samantha Chang for her service to the association before and during the COVID-19 pandemic.

In the course of finding that a marriage was genuine and warranted the issuance of a visa to a non-Canadian spouse, the Immigration and Refugee Board Appeal Division had resort to the wisdom of Jane Austen in Down v. Canada (Citizenship and Immigration), 2016 CanLII 58130, noting: “It is not time or opportunity that is to determine intimacy;— it is disposition alone. Seven years would be insufficient to make some people acquainted with each other, and seven days are more than enough for others.” The citation was to “Jane Austen: Sense and Sensibility (1811), (Marianne Dashwood to Elinor, ch. 12).”

Maureen B. Collins, a former professor at the John Marshall Law School in Chicago and a “longstanding Janeite and a card-carrying member of the Jane Austen Society of North America”, published in the DePaul Journal of Art, Technology & Intellectual Property Law an article titled “Reading Jane Austen through the Lens of the Law: Legal Issues in Austen’s Life and Novels”. In it, she “examine[s] the law as it existed in Jane Austen’s time, identif[ies] the legal issues raised in Austen’s life and novels, and address[es] the occasional intersection of the two”. Commenting on “Lawyers as Char-

acters”, she observes that “[f]ew lawyers appear in Austen’s novels, and those that do play minor roles. This seems natural in that most of the plots revolve around those who do not work for a living. At the time, lawyers held a social status above that of a tradesman, but far below the ranks of most of Austen’s wealthy characters. Even within the law, there was a hierarchy; barristers were considered gentlemen but solicitors, stewards and attorneys were not.”

E. Blair Lockhart was reappointed as a commissioner to the British Columbia Utilities Commission for a term ending November 26, 2025.

The Jane Austen Society of North America, which is a non-profit organization, describes itself as “dedicated to the enjoyment and appreciation of Jane Austen and her writing”, with the mission of “foster[ing] among the widest number of readers the study, appreciation, and understanding of Jane Austen’s works, her life, and her genius”.

The U.S. Court of Customs and Patent Appeals said in Application of Raymond K. Cooper, 254 F.2d 611 (C.C.P.A. 1958) that, generally, the names of books fall into two categories:

In the first category is a name like “tank truck” suggested above, composed of existing descriptive words or names, or other purely descriptive phrases such as “Furniture Repair and Refinishing” and “The Life of Abraham Lincoln.” The second category contains the new names for new books, the ones appellant calls “arbitrary” — “Candide,” “Leviathan,” “Huckleberry Finn,” “Arrowsmith,” “Moby Dick,” “Pride and Prejudice,” to pick a few at random, names which give, prior to reading it, no indication of what is in the book. Of course there are also the intermediate names ranging through all shades of descriptiveness of the book’s contents. But however arbitrary, novel or nondescriptive of contents the name of a book — its title — may be, it nevertheless describes the book.

Beverly J. Froese was reappointed as a member of the British Columbia Human Rights Tribunal for a term ending February 28, 2028.

Dalhousie University hosts an annual Weldon Literary Moot, “a fake trial based on a specific legal issue present in literature”. The moot involves professors dressing up as key characters of a chosen literary work and arguing legal issues raised in that work, thereby “bring[ing] th[e] book’s characters and plot to life in a courtroom setting complete with a judge, a jury, witnesses, and legal counsel”. In 2013, the moot focused on Pride and Prejudice—specifically, “portraying the book’s slander storyline in a way that Jane Austen’s contemporaries would have never approved of”. “In the

novel, it is essential that [the slander issue] will not go public in order to protect the reputations of everyone involved,” said Dr. Rohan Maitzen of the Department of English. Dr. Maitzen doubted Mr. Darcy would have ever chosen to set foot in a courtroom: “Mr. Darcy would have hated going to court … it would have been ‘so undignified!’”

Shannon E. Beckett and Edward M. Takayanagi were appointed as members of the British Columbia Human Rights Tribunal for terms ending November 14, 2024.

In a 2018 article published on Electric Literature’s website, Matthew H. Birkhold asked, “Why Do So Many Judges Cite Jane Austen in Legal Decisions?” His conclusion: “After reading every available opinion, I’ve come to a rather banal but beautiful conclusion: Jane Austen is cited as an authority on the complexity of life, particularly with regard to the intricacies of relationships. Alternatively, judges cite Austen as a shorthand for erudition and sophistication, to demarcate who is a part of high society (often, lawyers) and who is not (often, defendants), reflecting the novelist’s popular reception.”

In the District Court for the Southern District of Florida (Miami Division), one Amanda Ramirez (on behalf of herself and all others similarly situated) has sued Kraft Heinz Foods Company for, inter alia, “monetary, statutory and/or punitive damages” because her Velveeta Shells and Cheese takes longer to make than the “ready in 3 ½ minutes” promised on the packaging. Ms. Ramirez claims that the following tedious sequence of culinary preparation evinces the falsehood in advertising foisted upon her (and an entire class of persons) by Kraft Heinz (caps in original):

4.First, consumers must “REMOVE lid and Cheese Sauce Pouch.”

5.Next, they must “ADD water to fill line in cup. STIR.”

6.Third, “MICROWAVE, uncovered, on HIGH 3-1/2 min. DO NOT DRAIN.”

7.Finally, they should “STIR IN contents of cheese sauce pouch.”

8.Defendant then notes that “CHEESE SAUCE WILL THICKEN UPON STANDING.”

Are you with her? Can you see where such time-consuming steps might lead an unsuspecting consumer? The pleading spells it out:

9.Consumers seeing “ready in 3 ½ minutes” will believe it represents the total amount of time it takes to prepare the Product, meaning from the moment it is unopened to the moment it is ready for consumption.

10.However, the directions outlined above show that 3-and-a-half minutes is just the length of time to complete one of several steps.

11.The label does not state the Product takes “3 ½ minutes to cook in the microwave,” which would have been true.

Clearly misled by the false advertising, Ms. Ramirez would not have bought the product had she known that 3 ½ minutes was but a single step in her otherwise tedious quest for the rich flavours of Velveeta cheese melted over exquisitely machine-made pasta shells. She demands punitive damages not only for herself, but for an entire class of people who wanted their Kraft cheese dinner faster, dammit!

In Jane Austen’s day, there were social hierarchies, even within the law. At the time, as noted earlier, barristers were considered gentlemen, but solicitors were not. The despicable George Wickham, after deciding not to be a clergyman, tells Mr. Darcy that he has “‘some intention … of studying the law’”—whether to be a barrister or solicitor he did not say. In any event, he gave up, finding it to be “a most unprofitable study”.

Reportedly there was some flirtation in 1796 between Jane Austen and Tom Lefroy, just before he started his training as a barrister. He much later became chief justice of the Court of Queen’s Bench in Ireland. He may at some point have told his nephew that his affection for Austen was a “boyish love” on his part.

In Wexler v. California Fair Plan Association, B303100 (2021), the Court of Appeal of the State of California explained the “insurable interest” doctrine as follows:

The insurable interest doctrine is venerable: its taproot goes deep into the earth of English common law.

The place to start is 18th century London. In Georgian England, people needed no connection to some ship or celebrity to buy insurance on ships or celebrities. This common law freedom led to unadorned gambling. Imagine, for instance, buying life insurance on Jane Austen or Henry Fielding, during their lifetimes, just as a lark. Or perhaps it would be fun to buy an accident policy on some ocean vessel. In revulsion, Parliament passed statutes in 1746 and 1774 to outlaw “gaming or wagering” of this sort. Thus was born the doctrine of insurable interest.

With the agreement of the Tla’amin Nation, the Powell River General Hospital was renamed qathet General Hospital Powell River. quathet means “working together, bringing together” in the Comox language of the Tla’amin Nation.

David Martin was reappointed as a member of the Safety Standards Appeal Board for a term ending March 1, 2025.

Justice Kapsner, concurring in Degnan v. Degnan, 2016 ND 61, a family law case, was concerned by the lower court’s statements that “[t]he Court finds that Barbara entered the marriage for purposes of financial gain and security” and that “given Barbara’s intentions in seeking the marriage, she should not suddenly find herself with a better lifestyle than she was associated with at the time of the marriage”. The appellate judge noted that she would “urge reversal” if that had been the entirety of the lower court’s analysis: “Taken alone, this language suggests the district court is punishing Barbara Degnan for considering future financial security as part of the decision to marry. Jane Austen would be astounded. Perhaps at twenty-five one enters marriage considering only love; one would be foolish to do so at fifty.” However, because the lower court “also identified other factors to support its decision on property division, spousal support, and attorney fees”, the judge concurred in the dismissal of the appeal.

In Hughes trading as Beesely and Hughes Lawyers v. Hill, [2020] FCAFC 126, the Federal Court of Australia was not impressed by the conduct of a lawyer who had been found liable for sexual harassment. Among his arguments on appeal was that, as the court noted, “the evidence did not support the conclusion that he had sexually harassed the Respondent because he was to be seen as being – and this was the actual submission – like Mr. Darcy in Pride and Prejudice”. The court noted the appeal was “devoid of merit”. Among other things, the court “reject[ed] the submission of Senior Counsel for the Appellant that these were the actions of a Mr. Darcy. The facts of this case are about as far from a Jane Austen novel as it is possible to be.” The court also noted there was “no need to assess the correctness of the Appellant’s contention that misguided but lofty-minded romantic conduct cannot constitute sexual harassment” (though pointing to some cases where “repeated, written declarations of love” were on their own determined to be the possible basis for a finding of sexual harassment) because that was not what the present case involved: “Wherever may lie the frontiers of the juristic conceptions in [the legislation at issue] of the unwelcome sexual advance or unwelcome conduct of a sexual nature, they comfortably enclose the shabby state of affairs in which a man gains access to his female employee’s bedroom dressed only in his underwear. The trial judge described some aspects of the Appellant’s evidence as ‘delusional’. I regret that the same may be said of this aspect of the appeal.”

According to its website, the Jane Austen Centre in Bath (where the novellist spent considerable time) “focuses on the life and works of Jane Austen, as well as the Regency period in which she lived”. The centre is “located on the same street where she last lived in Bath, and [the centre’s] Georgian building offers a glimpse into how that would have looked in her day”. Also located there is the Regency Tea Room, offering menu items such as “Tea with Mr. Darcy” (with various cakes, sandwiches and a scone), “Miss Dashwood’s Afternoon Tea” (no cakes), “Lady Catherine’s Proper Cream Tea” (only scones to eat) and “Mrs Bennet’s Cake of the Day”.

B. William (Bill) Sundhu was appointed Co-Vice-Chair of the University of British Columbia Board of Governors and is entering his fifth year of service on the UBC Board of Governors. He is also nearing a decade of appointment to the List of Counsel on the International Criminal Court in the Hague.

The Honourable David R.P. Eby, K.C. , became the Premier of British Columbia on November 18, 2022. He is the 36th premier of the province.

Shannon N. Salter was recently appointed as Deputy Minister to the Premier, Cabinet Secretary and Head of the BC Public Service.

As Justice Lewison described In the Matter of P, [2009] EWHC 163 (Ch):

The entail was once the standard method by which the English aristocracy and landed gentry kept land in the family, as any reader of Jane Austen will know well. In Pride and Prejudice one reason for the desperate attempt to marry off the Bennet girls was that Mr Collins would inherit the estate under an entail. Even then the entail was not widely understood:

“Jane and Elizabeth tried to explain to her the nature of an entail. They had often attempted to do it before, but it was a subject on which Mrs. Bennet was beyond the reach of reason.”

Unfortunately, as this history of this case reveals, an entail remains a subject on which some people are beyond the reach of reason.

The essence of an entail is that it creates an estate in land (called a “fee tail” or “entail”) which lasts for so long as the original grantee or any of his lineal descendants are alive. The original grantee takes a life interest and his descendants also each take successive life interests in land. The instrument creating the entail sometimes limited the gender of the grantee’s descendants entitled to a life interest (usually to males). The person entitled to the life interest is called the tenant in tail in possession, and the next person in line is called the tenant in remainder (or the remainderman). The common law was hostile to what were effectively inalienable interests in land and by the end of the fifteenth century allowed the legal process to be (ab)used in a collusive action (called a recovery) and a collusive compromise (called a fine) which cumulatively had the effect of barring the entail. Once the entail was barred it was converted into a fee simple. These judge made rules were confirmed in substance but simplified by Parliament. Under the present law

a tenant in tail in possession may bar the entail by a disentailing assurance (which must be made by deed) made during his lifetime under the Fines and Recoveries Act 1833; or by will under section 176 of the Law of Property Act 1925. Thus all it takes to bar an entail is the execution of a simple deed by the tenant in tail in possession, or the inclusion of a suitable clause in his will. Accordingly the position of the remainderman is very precarious.

The Honourable Barry A. Leon, the former Commercial Court Judge of the Eastern Caribbean Supreme Court, in the Territory of the Virgin Islands, joined the Vancouver International Arbitration Centre’s Domestic and International Arbitration Panels.

With the support of the Canadian Embassy, the Justice Education Society is providing training to women in different Honduras communities, facilitated through workshops with the Women’s Study Centre, with the aim of empowering women as leaders in those communities.

“‘Seldom, very seldom, does complete truth belong to any human disclosure; seldom can it happen that something is not a little disguised or a little mistaken.’ Jane Austen, Emma”: In the Matter of Henry J. Helm, No. 2011-CA0500 (Louisiana 4th Cir., 2011).

Ronald J. MacDonald, K.C., was reappointed as the chief civilian director, Independent Investigations Office, Ministry of Attorney General for a term ending October 24, 2025.

Trevor William Morley was reappointed to the Employment and Assistance Appeal Tribunal for a term ending October 31, 2024.

Colin Firth played the role of Mr. Darcy in a 1995 adaptation of Pride and Prejudice. He also played Mark Darcy, a lawyer, in the movie Bridget Jones’ Diary (which was based on a book that was itself reportedly based on Pride and Prejudice) and its sequels.

Barbara A. Carmichael, K.C., was appointed as Acting Deputy Minister with the title Acting Deputy Attorney General, Ministry of Attorney General.

Julie L. Williams was appointed as an Acting Assistant Deputy Minister with the title Acting Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General.

Seizing the opportunity to insert references to a great many books and plays into a judicial decision about a wife’s plot to murder her husband, the Mary-

land Court of Special Appeals confirmed her convictions for first-degree murder and first-degree arson in Hricko v. State of Maryland, No. 255 (2000). The court noted that although for a time “the low-pitched marital discord was, at worst, such stuff as divorce suits are made of and not the driving force behind murder”, ultimately the wife’s “smouldering discontent burst into raging claustrophobia. What was the spark? Cherchez l’autre homme! He arrived during the last week of November.” In this regard, “[a]t the very outset of that … week there appeared at the edge of the crowd, like Darcy in Pride and Prejudice or Rhett Butler’s dark stranger from Charleston, an enigmatic new figure … Though ten years her junior, he immediately caught the eye of the discontented [wife].”

In the United Kingdom, the Portable Antique Scheme (“PAS”) is a program created under the auspices of the Treasury Act that requires reporting the discovery of artefacts of possible national interest. In 2013, pop star Kelly Clarkson bought a gold and turquoise ring once owned by Jane Austen. Before she could leave the country, the British government invoked PAS and imposed an export ban on the ring. Ultimately, Ms. Clarkson resold the ring to the Jane Austen’s House Museum after Austen fans raised the funds to buy it.

Allowing an appeal from an order that had permitted a mother to relocate with her son to a different jurisdiction than his father and siblings in Speck v. Spedafore, 2006 PA Super 57, the Superior Court of Pennsylvania noted:

We have noted the significance of the relationships within a nuclear family, which sustain and nourish a child for a lifetime, but accomplish it day by day, hour by hour, indeed, minute by minute. As Jane Austen stated so eloquently, “Children of the same family, the same blood, with the same first associations and habits, have some means of enjoyment in their power, which no subsequent connections can supply . . . .” [citing Jane Austen, Mansfield Park, 2014] Relocation cases have highlighted the enduring value of the maintenance of sibling relationships …

Clearly big Jane Austen fans (hence the second reference to a decision of this court), the Maryland Court of Special Appeals included the following footnote in Dixon v. Process Corp., 38 Md. App. 644 (1978): “Had Mr. Litty been mindful of the words of Jane Austen (1775-1817) in Emma, ch. 34 (1815) that ‘[b]usiness ... may bring money, but friendship hardly ever does,’ he may not have become an appellant in this litigation.”

Thought du mois:

It isn’t what we say or think that defines us, but what we do.

Jane Austen, in Sense and Sensibility, (1775–1817), novelist

CONTRIBUTORS

Brenda Benham is a retired lawyer who spent most of her legal career at the BC Securities Commission. At 61, she started her own business, Memorable Presenter Consulting, to help lawyers and other detail-oriented people be much better presenters, using the brain science of how people learn and remember.

Douglas J. Conolly is a member of the executive management committee and head of the Dispute Resolution and Litigation practice group at McQuarrie Hunter LLP. Doug enjoys dealing with challenging and complex shareholder and property ownership disputes, commercial leasing issues, Expropriation Act claims and Builders Lien Act matters.

Ashley K. Dhaliwal is an associate in the Dispute Resolution and Litigation practice group at McQuarrie Hunter LLP. Her practice focuses primarily on property ownership disputes, Builders Lien Act matters, collapsed real estate transactions and expropriation compensation claims.

Brook Greenberg, K.C., is a litigator at Fasken, a bencher, an adjunct professor at Allard Law and a frequent contributor to CLEBC courses.

William G. Horton is an independent arbitrator of international and noninternational business disputes. During his previous 30-year career as a commercial litigator, he served as head of litigation at two major Canadian law firms.

Steven McKoen, K.C., practises securities and corporate law at Blakes and has been a bencher of the Law Society of British Columbia since 2016.

Joel Nitikman, K.C., is a senior tax partner in the Vancouver office of Dentons Canada LLP and a frequent contributor to the Advocate. He says his greying hair causes others to ask him when he is retiring, but he has no plans to. Yet.

Rebecca Shoom is a partner at Lerners LLP in Toronto, in the Commercial Litigation, Arbitration and Appeals Practice Groups. She acts as counsel and arbitrator in a wide variety of commercial disputes. She regularly mentors articling students and associate lawyers and in her off time is an avid reader and dedicated trivia team member.