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