July 2025

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VOL. 83 PART 4 JULY 2025

Entre Nous .

On the Front Cover: Val Napoleon By

Jeremy Webber

The Local Venue Rule (?) By Tyler Holte

Peter Parsons – An Appreciation By Allan

McDonell, K.C.

Unnecessary Duplication: Procedural Issues with Shareholder Oppression Claims in British Columba By Thomas

A. Falcone

Why You Will Make More Use of AI in Practice and How By Robert Diab

The “Miscarriage of Justice” Test and the Reasonableness Standard of Review Under Section 59(4)(a) of the Arbitration Act, S.B.C. 2020, c. 2 By Gerald Ghikas, K.C.

Artificial Idiocy By

Spencer Keene

from Vancouver Bar Association

Announcing the 2025 Advocate Short Fiction Competition

Peter A. Allard School of Law Faculty News

UVic

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New Judge

ON THE FRONT COVER

Val Napoleon graces the front cover of this issue. Read about her fascinating path to law and powerful achievements starting on page 497.

Rebecca Huang FCIArb, Arbitrator

O: +1 416-306-8452 E: rebecca.huang@nineac.com

Rebecca Huang is an independent Canadian arbitrator with Singapore-based Nine Arbitration Chambers, specializing in complex international commercial disputes. She is a Fellow of the Chartered Institute of Arbitrators and Associate Member of the College of Commercial Arbitrators. She can be reached at rebecca.huang@nineac.com.

To learn more, visit our website at www.nineac.com.

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ENTRE NOUS

ELECTIONS AND EMAILS

April 2025 Federal Election and Other Elections

We start with some thoughts about elections. In the April 2025 federal election, the largest-ever number of votes was cast in Canada: over 19.8 million. This number does not equate to record voter turnout, given the denominator in the equation (eligible voters) has also increased over time. Voter turnout in the April 2025 federal election was 69.5 per cent,1 which is far above the low-water mark of 58.8 per cent in 2008, but far below the 79.4 per cent recorded in 1958.2

The 2025 election illustrated that each vote cast can affect the result of an election in a practical, tangible way. Margins of victory in certain ridings were astonishingly small. A Liberal candidate won one Quebec riding (Terrebonne)—subject to a court challenge at the time of writing—by one vote. The difference between first and second place in the ridings of Terra Nova–The Peninsulas in Newfoundland and Labrador, and the Ontario ridings of Windsor–Tecumseh–Lakeshore and Milton East–Halton Hills South, was within two dozen votes in each case. In turn, had just a few more ridings shifted for the Liberals, that party could have formed a majority government. As the date of writing, and subject to the court challenge noted above, the Liberal party emerged with 170 of the 172 seats required to do so.

For many voters, though, the 2025 election was less about the political affiliation of the candidates, or about judging the outcome from a partisan perspective, than about the act of voting. Even those of us who struggled, when voting, to pick an ideological favourite among the choices available felt it was important to vote.

To state the obvious, the votes cast were to elect members of a Canadian parliament. From that perspective, voting manifested voters’ commitment to the independence of this country in face of the threats of annexation

made by our southern neighbour’s avaricious president. Voting for members of the parliament of Canada is not voting for either the legislature of the fifty-first state or a governor.

For some voters the geopolitical context may also have played some role in their selection of the candidate for whom to vote. In Canada and in other countries that have recently held elections, including Australia and Romania, political parties headed by someone who was not perceived to share obvious traits with the U.S. president have experienced a boost.

For various reasons, support for independence from the United States is not necessarily support for Canada, as the combination of established or odd separatist voices that we are hearing indicates. However, for many voters—whether part of families that have been in Canada for generations, new citizens welcomed from countries menaced by invasion or other forms of insecurity, or otherwise—voting in a Canadian election was also a patriotic act demonstrating national allegiance.

The act of voting in one election can, as well, be a unifying force in the sense of being a form of collective engagement. Voting is one of the rare activities in which a large portion of the population may engage together: it is a means of forming or manifesting common bonds. Although voters these days may and do access vastly different sources of information on which to base their choices—long gone are the days of the population tuning into a single television program—at least the exercise of making a decision and manifesting it by marking a ballot is shared.

For some Canadian voters, exercising the right to vote was also a conscious means of showing commitment to democratic values, in this case packaged within a national unit. The right to vote is, obviously, the “cornerstone of democracy”.3 As the Supreme Court of Canada has described, “[i]n institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise” and “[i]n individual terms, the right to vote in elections to the House of Commons and the provincial legislatures, and to be candidates in those elections, is guaranteed” to every citizen.4 The April 2025 federal election was, by and large, an example of a democracy working as it should. As a looming point of contrast, there is some concern in the United States that there, some Republicans representatives and senators are counting on not having to face voters again, as there may be few or no other explanations for acquiescence in executive policies that are wildly unpopular with the electorate.

Of course, those Canadian voters whose democratic sympathies propelled them to the polls in April should not forget in our day-to-day lives that democracy also embodies a range of values and processes not limited

to the period of an election. As the Supreme Court of Canada has noted, for example, “a functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, ‘resting ultimately on public opinion reached by discussion and the interplay of ideas’”.5

Not everyone has the energy or comfort to engage in that ongoing discussion, much as it might be important. Voting at least provides a means of getting across at intervals, through selecting a candidate who espouses ideas we share, matters that we might not personally have the energy or comfort to articulate ourselves in another forum. While the exercise of voting is public in some respects—e.g., those of us who physically line up at a voting place can be seen—the actual marking of the ballot is one of the now-rare activities that is done in a manner that is:

•low key. All that is required is marking a piece of paper. Our opinion can be expressed without the effort required to formulate the words and images that would be required for a social media post, for example.

•anonymous. We can express our opinion on issues by choosing an aligned candidate. The opinion we express, via that selection, can be far more radical than we might dare voice were the ballot not secret. By contrast, for those who in day-to-day life thrive on being flamboyant, the anonymity of the vote also allows them freedom to choose a party or candidate that may actually be more conservative or centrist than fits with the voter’s public persona.

The importance of voting is not confined to federal elections—various of the same principles apply in the context of elections other than parliamentary ones. However, voter turnout can be jarringly low in those other contexts.

We have previously, in March 2023, written about low voter turnout in municipal and bencher elections.6 The May 2025 bencher by-election in Nanaimo County saw a voter turnout of 36.8 per cent, just over half the Nanaimo-Ladysmith turnout in the April 2025 federal election.7 The byelection turnout was still commendable when compared to the recurringly depressing numbers in Vancouver County, with a voter turnout of 19.8 per cent in the November 2024 bencher by-election. In the November 2023 bencher election, turnout in Vancouver County was 25.6 per cent, down from 28.3 per cent in the 2021 bencher election.8

It is perplexing to us why these low numbers persist. Various of our colleagues sound impassioned in discussion or in court about the regulation of

the legal profession(s), yet do not take the opportunity made available to all of us to have a say in its governance. The arguments of those who say the independence of the bar is best preserved through a structure akin to that of the existing Law Society (and through the election of lawyer benchers to oversee it) seem to fall somewhat flat if most members do not tangibly engage with it, even in the basic and easy form that online voting allows.

Are our colleagues simply not seeing the Law Society and candidate emails that provide the information required to vote in bencher elections? Or are they tuning those emails out?

Does tuning them out have nothing to do with those emails’ particular content, electoral or otherwise, but with the fact they are emails?

Yes, it’s a segue … no longer having our Zen moment in a voting booth, we turn to some pet peeves in the world of email. Of course, if one of your pet peeves is being asked to read about our pet peeves, stop reading now.

Some Thoughts About Emails

Friendly reminders: For those sending emails with “friendly reminders”, know your audience. For the more sensitive (irritable) of your readers, the connotation is that the sender would have been entitled to send an unfriendly reminder, and only their kindness or forbearance saved the recipient from this wrath. But most senders are not doing us a favour by sending the email. Sometimes they are “reminding” us of something they did not tell us before. It would be counterproductive, or worse, for those who are service providers seeking our business to send an unfriendly version of the email—those who are service providers would risk us taking our business elsewhere, or at least risk us challenging their own tardiness in all other respects.

Scheduling: Why do so many of us get emails in which we seem to be asked to take on the task of coordinating schedules and finding an appropriate meeting time? Scheduling-related email chains can become word problems in which the task is to figure out the small windows of overlap among the schedules of Person A (travelling at X speed on an airplane to Y destination), Person B (always busy in court), and Person C (between meetings). The level of difficulty is compounded when the initiators of these email chains, usually in Toronto, insist on scheduling in their local time even if every other participant in the proposed meeting is elsewhere. We should award medals to anyone who schedules meetings through our trusty assistants.

Regards: Emails often conclude these days with various versions of “regards” —plain “Regards”, “Best regards” and “Kind regards”.

We have no quarrel with plain “Regards”, but have some reservations when reading the other categories of sign-off. We raise this in a gingerly

fashion, because some of our favourite colleagues are among those who use the “Best” and “Kind” variants in their correspondence.

Use of the term “Best regards” seems destined to give rise to offence to someone. There is always risk that an email closing with “Best regards” will be seen by someone who has only ever received a humble plain “Regards”. What qualifies one recipient and not another to get better regards than the norm?

If the risk of offence is removed by sending “Best regards” to all, does that still work? Are any regards actually “Best” when never any better than others?

The term “Kind regards”, also used by various of our favourite colleagues to close their emails, has a vague kinship with the earlier-discussed “friendly reminder”. Prefacing “regards” with “kind” suggests the sender would have been entitled to send unkind regards, but forbore from doing so. Why exactly did that sense of entitlement arise? Perhaps the adjective “kind” is more associated with the sender’s disposition than with the regards, but that makes matters no better: what about us or our conduct required the sender to be kind in order to send the regards at issue? And if the sender is simply asking recipients to take note that the sender is always kind, not simply being kind to one particular recipient, that may not convey the self-effacing modesty that perhaps was desired.

Do you, too, have some email-related issues to share? Let us know and we may include them in a future issue of the Advocate.

ENDNOTES

1. Elections Canada, “Updated: The 45th Federal Election by the Numbers”, online: <www.elections.ca/ content.aspx?section=med&dir=pre&document=apr 2925&lang=e>.

2. Elections Canada, “Voter Turnout at Federal Elections and Referendums”, online: <www.elections.ca/ content.aspx?section=ele&dir=turn&document=index &lang=e>. This is for general elections: the lowest voter turnout for other sorts of votes was for a referendum in 1898.

3. Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68 at para 14.

4. Reference re Secession of Quebec, [1998] 2 SCR 217 at para 65.

5. Ibid at para 68, quoting Saumur v City of Quebec, [1953] 2 SCR 299 at 330.

6. “Entre Nous” (2023) 81 Advocate 169.

7. “Voter Turnout Across Mid-Island Highest in a Decade”, Nanaimo News Now (29 April 2025), online: <nanaimonewsnow.com/2025/04/29/voter -turnout-across-mid-island-highest-in-a-decade/>.

8. Law Society of British Columbia, “Bencher Election Results”, online: <www.lawsociety.bc.ca/about-us/ benchers/bencher-election-results/>.

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ON THE FRONT COVER

VAL NAPOLEON

By Jeremy Webber

Val Napoleon holds the Law Foundation Chair of Indigenous Justice and Governance at the University of Victoria. She is the founding director of UVic’s hugely influential Indigenous Law Research Unit (“ILRU”). She was co-founder with John Borrows and first director of UVic’s joint degree program in the Common Law and Indigenous Legal Orders (“J.D./J.I.D.”). She has co-led the development of the National Centre of Indigenous Laws (“NCIL”), including a new wing added to UVic’s Murray and Anne Fraser Building that will open in fall 2025. Her work has had a profound impact on the recommendations of at least three nationally significant commissions of inquiry: the Truth and Reconciliation Commission of Canada; the National Inquiry into Missing and Murdered Indigenous Women and Girls; and Quebec’s Commission d’enquête sur les relations entre les Autochtones et certains services publics. She—and ILRU under her direction—have worked with First Nations across Canada to apply those nations’ legal orders to the structural and day-to-day challenges they face. She is a prolific writer and researcher. Although there is no central record of research grants, the value of grants secured by Val and by ILRU would, I am certain, far outstrip those of any other legal researcher in Canada. Her work has shaped developments throughout Canada and in Latin America, New Zealand/Aotearoa and Australia. That impact has been recognized. To mention some of the honours conferred on her, she received a Lexpert Zenith Award (as a “change agent in law”) (2019) and a Lawyer Monthly Legal Award (2020); she was named Indigenous Peoples’ Counsel of the Indigenous Bar Association (2016); she was awarded the Indspire Award for Law and Justice (2021); she was named a Member of the College of New Scholars, Artists and Scientists of the Royal

Society of Canada (2017 to present—the Royal Society is the most prestigious scholarly association in Canada, composed of leading scholars across disciplines); she received the Yvan Allaire Medal of the Royal Society for “outstanding contributions in governance of public and private organizations” (2024); and two Canadian universities (Queen’s and UNBC) have conferred honorary doctorates on her. Her most recent honour was bestowed on May 28, 2025: a King Charles III Coronation Medal, on the nomination of the Law Commission of Canada.

That is a spectacular record. I will say more about the substance of some of those accomplishments below. But they are all the more impressive once one understands what Val did prior to coming to law school: the circumstances of her youth and her activity in support of education and self-government in the Wet’suwet’en and Gitxsan territories of the Bulkley and Skeena valleys during the heady days leading up to and through the Delgamuukw litigation. That activity laid the foundation for what she has done since. In fact, for all its remarkable accomplishments, her academic career has been short. She first enrolled in law school in 1998, already a grandmother. She obtained her Ph.D. in law in 2009. Her first full-time academic appointment was in 2005 at the University of Alberta. But more about those accomplishments later.

To begin, Val was born into the Saulteau First Nation of northeast British Columbia (Treaty 8) but she left the reserve at a very young age when her mother entered a relationship with a non-Indigenous man who became, for Val, her much-loved father. They then lived on a farm in Progress, British Columbia, about halfway between Chetwynd and Dawson Creek. It was, in Val’s words, “a tiny house, … a one-room shack and it had another shack tacked onto it, and we hauled water from the creek and the dam.”1 Much of their food and a little income (and, especially when they obtained a moose, days of celebration) came from hunting and trapping—moose, bear, squirrel, beaver. They remained in very close contact with folks on the reserve, about an hour away by car. Val’s family often visited relatives there, and, to her great pleasure, their relatives and many others would stay with them on their farm. She refers to that period as “beautiful, intense, with a lot of hard times woven into it for all kinds of reasons”. One reason was a tuberculosis epidemic that led to Val, two siblings and their grandfather being sent to a hospital in Vancouver, where they lived for about a year and a half. Another was her father’s struggle with mental illness—although, in conversation, she immediately noted two great gifts from her father and his parents. First, from her father, “the gift … that my mind was my own and I could think whatever I wanted and nobody could control that except me—and I had to be careful sometimes who I told what I thought.” And, from her father’s

mother (who had been a schoolteacher), the ability to read, which Val learned at “a very young age”.

But, when Val was 11, “things came apart … and then there were foster homes and all of that.” She recounts a realization she had, at age 13 and in foster care, walking away from a visit with her family (who were then living in awful conditions in a skid shack): “my little epiphany at the time was that the world lied and I could believe those lies or not, and what the world was lying about was that my parents were failures. But I knew that they did the best they could, so I didn’t believe the world anymore.” After living in several foster homes, when she was 16, her daughter, Tamara Goddard, was born in Fort Nelson (but had to be given up for adoption). Then, at 17, Val and her partner moved to Smithers, arriving there in 1973.

In Smithers, Val worked at a wide range of jobs (including running the concession at the local ice rink). But the most important jobs were two. First, she was a tree-planter, among whom she met “these amazing Wet’suwet’en women. They were so tough and so strong and they laughed so much. They were in many ways like my own family… I found the laughter again. … I was really lucky to get all of that.” They also gave Val her first introduction to the legal order that the Wet’suwet’en share with the Gitxsan, on which Val would later write her Ph.D. dissertation. Second, in 1975, she was drawn into the work of the Smithers Indian Friendship Centre (later renamed Dzw L Kant Friendship Centre).

The Friendship Centre was, at the time, in its infancy. It occupied one room in an old building. “We hung out in this little room. We didn’t know what we were supposed to be doing there. … We had to figure everything out, and we were just kids.” Boy did they figure things out. Together they created a much larger organization. They raised money to buy a building. “We created a library, we created a place for kids, we created a shop where people could sell things, we had counselling, we had places where people could come and just be safe. … We tried everything. We drove people to Moricetown. … We ran classes. We had a radio program. … It was quite lovely – and very energetic!” They also organized low-cost housing: “This is what’s interesting to me. Like when I look back now at what we were able to do. There were Indigenous people living in woodsheds. There were Indigenous people living just in terrible, terrible conditions. And they let me take pictures of where they were living. … They talked to me. … And with that we were able to bring in low-cost housing.”

Her time in the Friendship Centre was an important step in her political education. She “always read a lot”. She attended national conferences. International visitors came to Smithers. She remembers copying down the words speakers used in meetings so she could look up their meaning in the

evenings. But a major breakthrough was her participation, from 1977 to 1979, in a pathbreaking Aboriginal Studies program delivered in Terrace under the auspices of Northwest Community College. Val describes the program as a “lifesaver”. It was the initiative of Indigenous leaders across northwest British Columbia. Val remembers Jeff Marvin, Don Ryan, Ray Jones and Morris Squires as some of those behind it. It was heavy-duty. Students would attend classes in Terrace for one week every month, with teaching from 9 a.m. to 6 p.m. every day (across a range of disciplines) and “mountains of reading” in the evenings. She remembers Michael Jackson and Stuart Rush as two of the instructors on law. All the students were Indigenous young people from across the north.

It was also in Smithers that Val met her husband and partner in life, Will Lawson. In 1981 they moved from their home near Moricetown to Hazelton, where Val (now 25 years old) began work as Employment Councillor for what was then the “Gitksan-Carrier Tribal Council”. This period was the lead-up to the Delgamuukw litigation—the major Aboriginal title claim brought by the Gitxsan and Wet’suwet’en. The taking of commission evidence for the trial began in 1985, the trial itself in May 1987.2 But the period was not just about the preparation of evidence and legal arguments (important as those activities were). It was a time of massive self-organization and re-assertion among the Gitxsan and Wet’suwet’en—a practical, far-reaching, self-generated exercise in societal recovery and self-governance.3 Val participated in many of those initiatives and was especially central to the Gitxsan’s educational programs.

These were wide-ranging. In the Gitxsan and Wet’suwet’en’s legal orders, primary stewardship of the land is exercised by “Houses” (in the Gitxsan language, wilp)—some 68 kinship groups among the Gitxsan alone, each headed by a chief who bears the name of the House.4 Each Gitxsan individual inherits their membership in a House from their mother or acquires it by adoption. (In 1992 Val was adopted into the House of Luuxhon, Frog Clan, associated with the village of Gitanyow, receiving the name Gyooksgan.) The Gitxsan educational initiatives were designed to help the Houses restore their decentralized structures and build shared institutions after long years of disempowerment and dislocation. Programs focused on territorial management, fisheries administration, teacher training and child sexual abuse prevention. A Justice Program was established to support the Houses’ ability to deal with members who caused harm or who had suffered injuries, in ways that would draw on Gitxsan principles. The Gitxsan also lobbied successfully for the establishment of legal aid centres in Hazelton and Smithers; Val served for a time on the Legal Services Board of BC. They organized two new health authorities, one for the eastern and one for the

western villages. They organized a fisheries authority and social services agency. For some of these years, Val also was president of ‘Ksan Historical Village—the famous and hugely influential museum, tourist attraction and carving school founded by Neil Sterritt, Polly Sargent and others. Many of these institutions are still in place.

Val was deeply involved in all these efforts. She was especially active in the schools. The Gitxsan did not seek to establish a separate school system (as the Nisga’a had done in 1975) but worked instead to make public schools welcoming and responsive to Gitxsan, Tsimshian and Haisla children and cultures. This led to Val and Gitxsan matriarch Katie Ludwig (Gal-sim-giget) successfully running for election to the School District 88 School Board, which had at the time the largest territory of any district in the province (it included the Hazeltons, Terrace, Stewart and—for a time—Kitimat), with Val serving as chair of the board for something like four years. Gitxsan language training was introduced into the local schools, several new schools were built, and a range of programs were initiated to retain Indigenous students, including the provision of daycare so that young mothers could complete their schooling.

There was a concerted attempt to ensure that all these activities worked in concert: the preparation for the court case; the rebuilding of institutions; community participation; skills training, language training, and education; and economic development through things like the carving school and tourism opportunities associated with ‘Ksan. But there were also activities directly tied to the assertion of jurisdiction over the land. Many, including Val, worked with House groups on recording their genealogies, oral histories and territories. A training program was established for interpreters in the court proceedings with support from Carleton University. There was a constant need to raise funds to pay the lawyers. There were demonstrations, camps and blockades.

Sustaining the litigation was a marathon, with more than 12 years elapsing between the taking of the first commission evidence and the final decision of the Supreme Court of Canada. Although the Supreme Court’s decision established important questions of principle, it certainly did not resolve the Gitxsan’s and Wet’suwet’en’s action. On the contrary, they were referred back to trial, faced with the prospect of beginning all over again, now on the foundation established by the court. The Gitxsan and Wet’suwet’en could no longer do so. It was a bitter victory.

In the wake of that outcome, Val decided to go to law school. She had applied to law school in the late 1970s but had decided not to go at that time. Now she applied to UVic again. She says, “I had started working as a consultant. I was working with different peoples across the north and elsewhere, and

I wondered about so where is my future going? … Indigenous women were nowhere around doing the work that I was wanting to do. And I wanted to keep doing the kind of work I was doing and I needed some kind of ‘drivers licence’ that would enable me to do that.” It was not certain that she would be admitted to law school. She only had grade 10. Her formal education since that time had been limited to the marvellous three-year college-level program in Aboriginal Studies she had taken in Terrace. But that program, her experience and an undertaking to complete the Program of Legal Studies for Native People at Saskatchewan (at the time, an eight-week residential program to prepare Indigenous students for law school) were sufficient to gain admission. She began law school in September 1998.

She was a superb student. She received nine awards and scholarships in achieving her LL.B., including the faculty’s most prestigious essay prize— the Advocate-sponsored David Roberts Prize in Legal Writing—twice (once in first place, once in third). She then articled with the firm Arvay Finlay and was called to the bar in 2002. By that time, however, with the encouragement of UVic Law Professor John McLaren, she had been bitten by the scholarly research bug. UVic Law did not have a graduate program at the time. She therefore began her studies in an interdisciplinary masters program, quickly transferred to an interdisciplinary Ph.D., and then transferred to the Law Ph.D. when it was created in 2004. I supervised Val in two of her research courses. She demonstrated qualities that have characterized all her work since: dedicated, insightful, imaginative, productive, bold—the kind of student who took one’s paltry suggestions, reflected on them and transformed them into insights far beyond what one had imagined. She was invited to present one of her papers at an international conference we organized in October 2004. The paper was published in the resulting volume.5 She was recruited to teach a course on restorative justice at UVic Law in fall 2004. She was recruited to a full-time academic position in Law and Native Studies at the University of Alberta beginning January 2005.

At U of A she experimented with courses on Indigenous law, some focusing on how one should understand customary and informal legal orders generally. She served as an important mentor to Indigenous law students, receiving an “Aboriginal Justice Award” from the Aboriginal Law Students Association. She attracted talented graduate students and post-doctoral fellows, including Hadley Friedland, who became a close collaborator in many of Val’s research initiatives and is now Academic Director and co-founder of the Wahkohtowin Law and Governance Lodge at U of A. Val remained close to UVic throughout this time. She continued to work on her Ph.D. dissertation on Gitxsan law. In 2009 UVic arranged for her to defend that thesis in the Gitxsan village of Gitanyow so that her defence would be answerable to

both academic and Gitxsan evaluation. Her thesis is a remarkable work, receiving the Governor General’s award for the best dissertation, in any discipline, at UVic that year.6 These were also years of intense development of what became the joint degree program in Common Law and Indigenous Legal Orders (J.D./J.I.D.). Napoleon remained closely involved in that project, participating actively in the consultations and pilot projects through which the J.D./J.I.D. was refined.

Then, in 2011, John Borrows left UVic for a named chair at the University of Minnesota. That meant that UVic’s Law Foundation Chair of Indigenous Justice and Governance became vacant. Val was immediately recruited, assuming the chair in January 2012. She brought with her a major project with the Truth and Reconciliation Commission and Indigenous Bar Association, designed to explore the resources available within Indigenous legal orders to address harms and conflicts within and between communities. Over the following summer student researchers participated in a training session, then fanned out across the country, working with seven First Nations from Snuneymuxw on Vancouver Island to Eskasoni on Cape Breton, comprising something like 23 communities across six Indigenous legal traditions. The results were a revelation, identifying practical tools, grounded in the peoples’ cultures, for addressing harms. The project materially shaped the strong focus on Indigenous legal orders in the TRC’s report. It also laid the foundation for UVic’s ILRU, which Val founded and leads. ILRU works collaboratively with First Nations to identify resources within their law to address the challenges the Nations want to address, from land management to governance to child protection to water law (and more). To date, ILRU has worked with over 50 Indigenous communities and trained over 500 community members.7 That in turn has led to a recent major grant from the Law Foundation of BC, designed to support the rebuilding of a complete Indigenous legal order.

Val’s return to UVic also meant that she became, unambiguously, the coleader of the effort to establish the J.D./J.I.D. side by side with John Borrows (who returned to UVic in May 2014). The J.D./J.I.D. was a mammoth effort, the details of which can hardly be conveyed here.8 It involved the framing of a teaching program unprecedented in the world, designed to teach the common law and a sampling of Indigenous legal orders as evenhandedly as possible, with the rigour and critical engagement that any good law school brings to its task. To study both forms of law, students in the program would study for four years, not three. Because the J.D./J.I.D. cohort was in addition to UVic’s J.D.-only student load, the total student load in UVic Law would, when it reached steady state in academic year 2021-22, have increased by more than twenty-five per cent. The program required an ambitious fundraising cam-

paign that engaged both levels of government, charitable foundations and corporations—a campaign in which Val was centrally involved. And it required the establishment of an administrative infrastructure that could support the program. This project was the work of many generous and dedicated faculty, staff, students and senior administrators, but none more than Val. She became the first director of the program. And then, in September 2018, the hard work of teaching and learning began, with Val taking responsibility for teaching “Transsystemic Property” (both British Columbia property law and Gitxsan relationships to land, in intense comparison).

In recounting Val Napoleon’s career, I have tended to focus on the major institutional accomplishments—those that have broken substantially new ground and that elicit the hope of a transformed relationship between Indigenous peoples and Canadian law and governance. But it is important to realize that throughout she has carried a regular teaching load, supervised graduate students, and published in standard scholarly outlets. Indeed, her output in standard publications is far above that of most scholars in law, especially given the comparative brevity of her academic career: 5 edited books published or forthcoming; 19 journal articles published or forthcoming; 24 book chapters published or forthcoming; and many, many presentations at conferences and other scholarly contexts. This is in addition to the very large number of research reports produced by ILRU or Val individually for First Nations, other Indigenous organizations and nonIndigenous public entities.

Indeed her work tends to be intensely collaborative. Many of her publications are co-authored. Her work is critical; she has long believed that an Indigenous self-governance agenda must be combined with an Indigenous feminist agenda. Although the revitalization of Indigenous law is at the heart of her work, it is not backward-looking. It seeks to draw on Indigenous legal orders as tools for thinking, capable of inspiring creative action today, grounded in peoples’ particular inheritances. Her scholarship is constructive and practical, seeking always to have an impact. But the writing is also at times intensely beautiful, sometimes heartbreaking, sometimes joyful, sometimes both at once. 9 Indeed, she is a talented artist—though, as you will see if you seek it out, one that embraces her hidden trickster.

This work has earned her a substantial international reputation. She and her colleagues regularly deliver an intensive course at UVic each May on how to conceive of and work with Indigenous legal orders. Students come to that course from across Canada and the United States, Scandinavia, New Zealand/Aotearoa, Australia and elsewhere. ILRU materials, translated into Spanish, have been influential in Latin America. When the new NCIL opens

in the fall of this year, those national and international activities will have facilities commensurate with their reach and importance.

I have to stop now, even though with Val there is always more to say. As she said of herself and the gang of youngsters at the Smithers Friendship Centre, “Very energetic”.

So let us close with these words—words she used in our interview when she was reflecting on what she hoped Delgamuukw might accomplish, words that speak to the driving force of all her life’s work:

I thought that the Gitxsan and Wet’suwet’en would be rightfully restored to their land, that they would have a political voice, that they would be able to manage themselves with their strengths and take care of one another, that what we were doing was to strengthen all that enabled them to be a people, that we would restore those things that had been undermined by colonization. So that’s what I thought was possible.

ENDNOTES

1.This and all quotations from Val Napoleon in this article (unless other wise attributed) are from an interview between Val and Jeremy Webber on June 3, 2025. The recording of the full interview will, once it is processed, be held in the McPherson Library – Mearns Centre for Learning of the University of Victoria.

2. Delgamuukw v British Columbia, [1997] 3 SCR 1010. The trial decision is reported at (1991) 79 DLR (4th) 185; the appeal at (1993) 104 DLR (4th) 470. The trial alone had 374 days of evidence and argument. Transcripts of the commission evidence and trial can be found at online; <https://open.library. ubc.ca/collections/delgamuukw>.

3.For a remarkable account of those years and much more besides, see Neil J Sterritt, Mapping My Way Home: A Gitxsan History (Smithers BC: Creekstone Press, 2016).

4.The best work on Gitxsan law is Napoleon’s PhD dissertation: Val Napoleon, Ayook: Gitksan Legal Order, Law and Legal Theory (PhD, University of Victoria, 2009). See also Val Napoleon, “Living Together: Gitksan Legal Reasoning as a Foundation for Consent”, in Between Consenting Peoples: Political Community and the Meaning of Consent, ed. Jeremy Webber and Colin M Macleod (Vancouver: UBC Press, 2010), 45–76; Richard Overstall, “Encountering the Spirit in the Land: ‘Property’ in a Kinship-Based Legal Order”, in Despotic Dominion: Property Rights in British Settler Societies (Vancouver: University of British Columbia Press, 2005), 22–4 (Overstall is a close friend of Val; they worked together in Gitxsan country before encouraging each other to attend law school); Neil J Sterritt et al, Tribal Boundaries in the Nass Watershed (Vancouver, BC: UBC Press, 1998).

5.Napoleon, “Living Together: Gitksan Legal Reasoning as a Foundation for Consent”, ibid. Val also served, by invitation, on the organizing committee for that conference. Her post-conference feedback reveals both her insight and her humour. She suggested that we should “formally invite the Trickster to [our] next conference. This is an amazing intellectual instrument used by many indigenous peoples around the world to, among other things, reveal the absurd and the frailty of the gods in order to challenge our self-centred seriousness. … I don’t know what such a conference would look like but it would be different –because the Trickster would have to be the Trickster.” Email, Muskwah [Val Napoleon] to Jeremy Webber, 4 October 2004.

6.Napoleon, ‘Ayook’, supra note 4.

7.For samples of this work, see <https://ilru.ca/>.

8.See Jeremy Webber, “UVic Law Faculty News: UVic Law’s Indigenous Law Program Opens Its Doors in September 2018” (2018) 76(3) Advocate 423-430 and especially Val Napoleon and Debra McKenzie, eds, Intersocietal Pedagogies (working title), currently under review with University of Toronto Press.

9.See, as one example, Val Napoleon, “An Imaginary for Our Sisters: Spirits and Indigenous Law”, in Jeffery Hewitt, Beverly Jacobs and Richard John Moon, eds, Indigenous Spirituality and Religious Freedom (Toronto: University of Toronto Press, forthcoming 2025). This is the text of a talk that Val delivered at what turned out to be a celebration of the funding of the JD/JID. For a video of that evening, including Val’s talk, see <https://www.youtube.com/watch? vs=fUbGtE6Yjhc> (accessed 8 June 2025).

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THE LOCAL VENUE RULE (?)

By Tyler Holte

Ioften tell my clients that a law is only as good as its enforcement mechanism. If it is too cost-prohibitive to enforce a law, how do we expect it to be enforced? I have observed a systemic issue in foreclosure proceedings that directly and negatively impacts a mortgagor’s access to justice: ignorance of the local venue rule enacted by the legislature.

Section 21(2) of the Law and Equity Act1 provides what is conventionally referred to as the local venue rule:

(2) Unless the court otherwise orders, every foreclosure proceeding on a mortgage must be commenced,

(a) if the land that is the subject of the foreclosure proceeding is located in a municipality and there is a registry of the Supreme Court located in that municipality, at that registry, or

(b) if the land that is the subject of the foreclosure proceeding is not located in a municipality or, if it is located in a municipality but there is no registry of the Supreme Court located in that municipality, at any registry located in the judicial district in which the land is located,

and all applications in the proceedings must, subject to the Supreme Court Civil Rules, be heard at the location of that registry.

This provision grants a statutory right for proceedings to take place reasonably close to where the property is located for those that are at risk of losing their homes in such proceedings.2

I often provide pro bono advice to those facing foreclosure, to help mortgagors understand the process and what efforts are likely to improve their situation. I have observed in recent years that many foreclosure applications for properties located in Fort St. John are set in Prince George, an approximately five-hour drive away from the property. Given that Fort St. John has a Supreme Court registry, one would think the local venue rule provides that the matter ought to be heard in Fort St. John. When I press foreclosure counsel regarding an upcoming hearing set in Prince George, they generally quickly agree to adjourn the matter to the next Fort St. John assize. The frequency this seems to occur leaves me with concerns that no one is otherwise either respecting or enforcing the local venue rule.

Sometimes mortgagors find me a little late in the proceeding (e.g., after the order nisi). On one recent call, the mortgagor told me about their expe-

rience in appearing by telephone for an order nisi hearing in Prince George for a property located in Dawson Creek; he reported that the associate judge criticized him for not appearing in person. I was quite surprised to hear such a criticism could come from the bench, especially in the face of an apparent disregard for the local venue rule. Did this judge expect a mortgagor to travel 4.5 to 5 hours to attend this hearing in person, especially when they apparently do not have the funds to pay their mortgage? I was skeptical about this person’s report until I decided to bite the bullet and ordered transcripts. The transcripts showed the judge criticized the mortgagor three times during a 24-minute hearing for his failure to appear in person.

I find it troubling for the court to (1) disregard the local venue rule and (2) criticize the layperson mortgagor for not travelling several hundred kilometres due to the court’s disregard of the local venue rule. If the court is not going to protect a mortgagor’s practical ability to appear in their foreclosure proceeding, who is?

Access to justice seems to be a topic discussed by the profession and the court. Is it all just lip service? How can we say (with a straight face) that we care about this when we systematically disregard legislation on the topic? If we actually cared, the Supreme Court Civil Rules should supplement the local venue rule by also providing properties outside of municipal boundaries to have their proceedings nearby (as opposed to anywhere in the judicial district).

On a related issue regarding location of hearings: the sealed bid process has returned to requiring in-person bids. Does the court actually expect prospective buyers and/or their agents (in our judicial district) to travel to Prince George for the speculative chance to win a bid? I am not sure what was broken about the process implemented for sealed bids during the COVID-19 pandemic.

I welcome the readers’ thoughts.

ENDNOTES

1. RSBC 1996, c 253.

2. Bank of Montreal v Crocker, 2012 BCSC 195 at para 17.

PETER PARSONS – AN APPRECIATION

By Allan McDonell, K.C.

PETER F. PARSONS, 1945–2025

I was approached by another UBC law school student who introduced himself as Peter Parsons. He told me he had learned the two of us would be articling students at Farris, upon graduation. We hit it off immediately, but I was startled in that initial conversation when he suddenly segued from speculation about what it would be like working at our new employer to the firing rate of machine guns on a World War II Spitfire fighter plane. This was my first hint of the eccentric interests of Mr. Parsons.

Eventually, the great day arrived, and on May 15, 1975 we presented ourselves in the lobby of Farris, where we were met by Rodney Ward, a senior associate who was responsible for all articling students. Rodney had no idea what lay ahead for him.

He took us around the firm and introduced us to everyone we encountered. We couldn’t help but notice the intense interest we seemed to be attracting from senior lawyers. Peter and I were not so naïve as to think that senior lawyers would be impressed with two recent law school graduates, still wet behind the ears. The reactions were a puzzle until we were introduced to a senior partner who said, “Ah yes, you’re the two who sent the letter.”

Instantly, Peter and I knew what letter he was talking about. Some months before graduating, we were grousing about the poor pay we would receive as Farris students. We had been told the law profession viewed articling as an extension of our legal education, and we were lucky to be paid at all. (Of course, no Vancouver firm paid its students at a higher rate.)

Peter and I knew the essence of legal practice was persuasion, and therefore, we reasoned, if we could put together a convincing letter about the increasing cost of living, the firm would surely pay us more. It never occurred to us the firm might view the letter as a demand for a raise—before we had even begun the job. No wonder everyone wanted to take a look at the uppity students!

With our tour and introductions completed, Rodney led us to a small conference room, and asked if we had any questions. I didn’t, but Peter had a doozy: “Tell me, Mr. Ward,” he said, “how do the partners divvy up the pie at the end of the year?” I was appalled, and Rodney was speechless. “Well,

Peter,” he finally sputtered, “we want our students to have inquiring minds, but I suggest you not direct yours to issues that are none of your business.” So ended our first day at Farris.

The next headache for Rodney in his job as student supervisor soon occurred when I received an official, signed memo from the office manager. It said something like:

Partner Roger Duncan is unhappy with the large chesterfield in his office, and he wants it exchanged immediately for the smaller one in the lawyers’ lounge. It’s not worth calling in a furniture-moving company for such a small job, so please organize the students to make the exchange.

At once, I rounded up all the students, although nobody seemed to know where Parsons was, which is when I should have smelled a rat. With the three other students I could find, we were wrestling the huge chesterfield through the door when an enraged Roger Duncan arrived and demanded to know what we were doing. I produced the memo; Roger grabbed it and stalked off to confront the office manager.

He soon returned with the office manager, and now both of them were furious. In the interim I had figured out who was likely behind the memo, but, of course, I wasn’t saying anything. To his eternal credit, Peter quickly ‘fessed up and took all the blame. And to its credit, the firm was not upset about the practical joke, but they were very unhappy that the office manager’s signature had been forged. Peter’s career teetered on a razor’s edge for a few days, but he was forgiven and we carried on. These antics did not reflect well on poor Rodney.

It seemed like he aged ten years in the one year he supervised us, and not long after Peter and I were called to the bar, he left the firm and pretty much disappeared. I don’t know if that was coincidence or not.

The lesson we learned from the Great Chesterfield Caper was not to refrain from playing practical jokes; it was to refrain from playing practical jokes that involved anyone senior to us. Therefore, after we were called to the bar, we turned our attention to newly arriving students, because, without fail, there was one arrogant stuffed shirt in every year who was rude to secretaries and therefore presented an irresistible target.

When we had been students, the firm put our high spirits to good use and appointed us to organize small firm parties to recognize retirements and calls to the bar. We became quite adept at it, but we were soon bored and wished to hand off responsibility to the new students, while we arranged harbour cruises and other events. We would approach the selected student with news of his appointment as Party Convener. One of the responsibilities of the position, we said, was to arrange ice for the refreshments. So we led

the student across the street from the TD Tower to the Georgia Hotel. With him in tow, we approached the bell captain and reminded him we were from Farris, the hotel’s lawyers, and we were there to take some ice from the second floor ice machine. He waved us up the stairs.

We then led the student up the stairs to the ice machine and produced two large black plastic garbage bags and ordered him (and it was always a him) to put one inside the other and to fill it with ice cubes. We knew exactly how much ice was required for the job and told him when to stop filling the bag. This accomplished, he threw the bag over his shoulder like Santa Claus and followed us out of the hotel and towards the TD Tower.

Walking behind Peter and me, he soon learned a lesson in physics, which is that when plastic is exposed to cold, it loses its strength and begins to stretch. After years of refining the gag, we knew exactly how much ice and time were required for our purposes.

When we heard the inevitable whoosh and crash, we would turn on the student, who was invariably looking aghast at a pile of ice in the middle of Georgia Street. We would berate him for his incompetence and inability to follow our instructions. Perhaps the best part of the gag for us was that he was so embarrassed he didn’t tell anyone of his experience, so we could appoint a new Party Convener from the next year’s students, who wouldn’t know what was coming.

After we’d been around for a few years, Farris had seven bands of associates, identified by the number of years since they had been called to the bar. Each of the bands would negotiate their salaries with Frank Murphy, Q.C., who ran the firm, beginning with the most senior, seven-year band and working down to the most junior band, newly-called lawyers.

In the days leading up to our annual meeting with Murphy, Peter would say to me, “Well, time for our annual talk with George,” who was exactly one year senior to us. This meant that he would meet with Murphy to set his salary, just before Peter and I did.

Peter would ask him, “Well, George, have you given any thought to what you’re going to ask Murphy for next year’s salary?” And George would reply, “Yes, I have. I’ve been speaking with friends at other firms and I have a good idea where the market is. I’m going to ask Murphy for $X.” The figure sounded reasonable to me, but Peter would have none of it:

“What! A man of your caliber prepared to work for that pittance? You’re already a leader in your field, and Murphy is going to be snickering at you. He’ll instantly agree to your figure and you’ll leave money on the table. As a matter of fact, he’ll wonder if he should even be employing you since you’re so clueless.” And on Peter would go.

By the time Peter had wound him up, George was spitting fire and ready to metaphorically pound on Murphy’s desk and yell for more money. (I say “metaphorically” because no lawyer would dare pound on Murphy’s desk. Peter and I used to say that Murphy would never accept an appointment as managing partner, because it would be a demotion from God.)

And then it was our turn to face Murphy, who thought if anyone was going to pound on his desk, it was going to be the Young Turks, McDonell and Parsons. But Peter was way ahead of him. “You know, Frank,” he would begin, “McDonell and I want you to know that we really appreciate the advantages we have here at Farris. We’re working with good lawyers, who are teaching us a lot, and we’re getting great work. So we’re not looking for the last dollar in the short term, unlike some people. All we ask is what George is getting this year, plus a cost of living allowance.” Murphy was so charmed that he always agreed.

The gag worked for years, until Murphy discovered to his consternation that somehow Farris associates had become the highest paid in the city.

Perhaps you now understand why I believe that at this moment our Peter is standing in front of St. Peter at the pearly gates, and he’s negotiating an upgrade.

UNNECESSARY DUPLICATION: PROCEDURAL ISSUES WITH SHAREHOLDER OPPRESSION CLAIMS IN BRITISH COLUMBIA

By Thomas A. Falcone

Investing in a company and becoming a shareholder can be a risky business. Sometimes, that risk translates into frustration, bruised relationships, financial pain and a feeling of mistreatment. This can especially be the case in small, closely held companies, where both perception and reality can mean that the stakes are higher than with other sorts of investments individuals may make.

When things go sideways in corporate relationships in British Columbia, shareholders of companies have a statutorily provided relief mechanism that is often relied on to try to convince a court to make things right: the “oppression remedy” provided for by this province’s Business Corporations Act1 (the “Act”). Unfortunately, the current structure of civil procedure rules in British Columbia can present unnecessarily obstacles, complication and duplication to parties seeking relief. This article identifies these issues and proposes modest reform.

WHAT IS THE OPPRESSION REMEDY?

A shareholder oppression remedy is available to shareholders who consider that the actions of other shareholders or corporate management are unfairly harming—or oppressing—their interests. This remedy typically arises in closely held companies, where there are a small number of shareholders, who might often be family members or other closely related parties. Shareholders may face oppressive actions, such as exclusion from decision-making, denial of dividends or unfair treatment in corporate transactions, which can undermine their rights and the value of their investment in the company.

A historical overview of the genesis and development of the oppression remedy is beyond the scope of this paper, and certainly would surpass whatever modest expertise the author possesses. Suffice it to say, the remedy

was developed by legislatures across the common law world in response to what was perceived to be the harshness of the rule emanating from the English case Foss v. Harbottle, 2 which found that when a company suffers a loss or is wronged, the plaintiff in an action must be the company itself. So where previously the common law provided shareholders with no cause of action under which to pursue relief when they felt oppressed, legislatures stepped in to provide a mechanism for relief by way of a statutory cause of action.

THE OPPRESSION REMEDY PROVISIONS OF THE ACT

In British Columbia, the relevant provision of the Act providing aggrieved shareholders with an oppression remedy is found at s. 227:

Complaints by shareholder

227 (1) For the purposes of this section, "shareholder" has the same meaning as in section 1 (1) and includes a beneficial owner of a share of the company and any other person whom the court considers to be an appropriate person to make an application under this section.

(2) A shareholder may apply to the court for an order under this section on the ground

(a) that the affairs of the company are being or have been conducted, or that the powers of the directors are being or have been exercised, in a manner oppressive to one or more of the shareholders, including the applicant, or

(b) that some act of the company has been done or is threatened, or that some resolution of the shareholders or of the shareholders holding shares of a class or series of shares has been passed or is proposed, that is unfairly prejudicial to one or more of the shareholders, including the applicant.

(3) On an application under this section, the court may, with a view to remedying or bringing to an end the matters complained of and subject to subsection (4) of this section, make any interim or final order it considers appropriate, including an order

(a) directing or prohibiting any act,

(b) regulating the conduct of the company's affairs,

(c) appointing a receiver or receiver manager,

(d) directing an issue or conversion or exchange of shares,

(e) appointing directors in place of or in addition to all or any of the directors then in office,

(f) removing any director,

(g) directing the company, subject to subsections (5) and (6), to purchase some or all of the shares of a shareholder and, if required, to reduce its capital in the manner specified by the court,

(h) directing a shareholder to purchase some or all of the shares of any other shareholder,

(i) directing the company, subject to subsections (5) and (6), or any other person, to pay to a shareholder all or any part of the money paid by that shareholder for shares of the company,

(j) varying or setting aside a transaction to which the company is a party and directing any party to the transaction to compensate any other party to the transaction,

(k) varying or setting aside a resolution,

(l) requiring the company, within a time specified by the court, to produce to the court or to an interested person financial statements or an accounting in any form the court may determine,

(m) directing the company, subject to subsections (5) and (6), to compensate an aggrieved person,

(n) directing correction of the registers or other records of the company,

(o) directing that the company be liquidated and dissolved, and appointing one or more liquidators, with or without security,

(p) directing that an investigation be made under Division 3 of this Part,

(q) requiring the trial of any issue, or

(r) authorizing or directing that legal proceedings be commenced in the name of the company against any person on the terms the court directs.

(4) The court may make an order under subsection (3) if it is satisfied that the application was brought by the shareholder in a timely manner.

There is considerable British Columbian jurisprudence on s. 227 of the Act, which is not the focus of the author in these pages. The leading Canadian authority on shareholders’ oppression remedies provided for in the company law legislation across the country is the Supreme Court of Canada’s decision in BCE Inc. v. 1976 Debentureholders, 3 where the court affirmed that the oppression remedy provides for “broad, equitable jurisdiction to enforce not just what is legal but what is fair” and explained that the determination of what is fair is fact-specific, contextual and guided by “the reasonable expectations of the stakeholders in the context and in regard to the relationships at play”.4 The court also set out a two-step “inquiry” courts must apply when seized of oppression remedy claims:

(1)Does the evidence support the reasonable expectation asserted by the claimant?

(2)Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms “oppression”, “unfair prejudice” or “unfair disregard” of a relevant interest?5

The statutory framework and applicable legal test of the oppression remedy in British Columbia thus at first blush appear straightforward. The

mechanics of bringing the claim in the context of our rules of civil procedure are where complications arise—especially, as will be seen, in the common situation where the facts give rise to separate causes of action.

PETITIONS ONLY: RULE 2-1(2)(B)

As set out above, the oppression remedy is a creature of statute. The Act says that an aggrieved shareholder must “apply” to the court for relief. What does it mean to “apply” to the court? The answer to this question is provided by the Supreme Court Civil Rules6 (the “Rules”), at Rule 2-1(2)(b):

Commencing proceedings by petition or requisition

(2) To start a proceeding in the following circumstances, a person must file a petition or, if Rule 17-1 applies, a requisition: […]

(b) the proceeding is brought in respect of an application that is authorized by an enactment to be made to the court;

So, because the Act authorizes the oppression remedy by way of an application to court, the Rules in turn insist that the claim be brought by way of a petition. In other words, an aggrieved shareholder must petition the Supreme Court of British Columbia for relief when faced with oppressive conduct. Seeking relief by way of a notice of civil claim is thus, seemingly, barred by joint operation of the Act and the Rules.

This line of thinking has—again, seemingly—been endorsed in our superior court’s case law. For instance, in Sahsi v. Bhutal, 7 the B.C. Supreme Court stated:

Section 227 of [the Act] is an enactment … This triggers R. 2-1(2)(b). Therefore, to obtain the relief he is seeking, Mr. Bhutal must first file a petition as required under the Rules. This he did not do. As such, I have no jurisdiction to consider Mr. Bhutha’s application or make the order he seeks.8

The court in Sahsi went on to say that its inherent jurisdiction provides no path around the joint operationalization of the Act and the Rules: Inherent jurisdiction is a special power to be exercised sparingly. I do not agree that the court’s inherent jurisdiction applies here. This Court’s inherent jurisdiction is not intended to be a way in which to ignore clear and precise language such as the language contained in R. 2-1(2)(b).9

More recently, the court repeated the “rule” that the oppression remedy provided by the Act can only be sought by petition in Mirage Trading Corporation v. Ghahroud, when it said in crystal clear language that “the oppression claims [have] to be advanced by petition.”10

PROBLEMS WITH THE PROCEDURAL FRAMEWORK IN BRITISH COLUMBIA

A critical problem with this procedural framework is that oppression claims rarely exist in isolated factual matrices. Given the kind of conduct that might give rise to an oppression claim, it is common that an aggrieved shareholder will also have a claim for—and plead—fraud, breach of a fiduciary duty, breach of contract and even employment-related claims. These sorts of claims are brought, of course, by way of a notice of civil claim. And this is the crux of the problem with the current procedural framework: an aggrieved shareholder in such a (common) circumstance will need to file two separate cases in court, one by way of petition (oppression by way of s. 227 of the Act) and everything else by way of a notice of civil claim.

The rules governing petitions and the rules governing claims envision starkly different procedural pathways toward resolution or final adjudication: availability of discovery, necessity of viva voce evidence at trial and other interlocutory steps may or may not be readily available in one or the other. Thus, an aggrieved shareholder might find themselves filing two separate claims in court, and then going through the further hassle down the road of having the petition converted to the trial list,11 and then have the petition proceeding and the action consolidated or tried together.12

To reiterate, a scenario in which an aggrieved shareholder has a set of facts that give rise to an oppression claim pursuant to the Act as well as other causes of action is not a fanciful hypothetical. Rather, it is a situation that can arise with frequency. It arose in McDougall v. Knutsen, where a shareholder’s s. 227 claim was dismissed by the court, but an employment claim for the termination of his employment contract was allowed and he was awarded $98,075 by the court.13

SOMETIMES A CLAIM, SOMETIMES NOT: INCONSISTENCY IN THE CASE LAW

Although the above-canvassed cases might suggest that the procedural framework is well established and settled, at least one recent decision of our Supreme Court suggests otherwise.

The aggrieved shareholder in 2059041 Alberta Ltd. v. Pacific Pro Dive (2019) Ltd.14 brought his oppression claim pursuant to s. 227 of the Act by way of a notice of civil claim. The claim was adjudicated by way of a summary trial under Rule 9-7. The court determined that a summary trial was a suitable method of disposition and allowed the oppression claim, granting relief to the aggrieved shareholder pursuant to the Act in an action initiated by a notice of civil claim.

This author would suggest that given the reality that oppression claims will arise out of the same fact patterns as non-statutory causes of action, it

is likely common practice that notices of civil claim are drafted to include relief sought pursuant to s. 227 of the Act. Most matters settle long before the parties wind up inside of a courtroom. 2059041 Alberta might be the only recent case where the oppression remedy in the Act was granted in a case that started by filing a notice of civil claim. But in reality, and despite the seemingly clear reading of the requisite provisions of the Act, the Rules and the cases in the previous section on this subject, the actual practice of parties is probably quite inconsistent.

THE GENERAL POLICY AGAINST MULTIPLICITY OF PROCEEDINGS

Aside from the problem of inconsistency, the “rule” that oppression claims under the Act must be brought by way of petition runs afoul of the general policy in this province against the spawning of a multiplicity of proceedings. This general policy is best articulated at s. 10 of the Law and Equity Act:15

Avoidance of multiplicity of proceedings

10 In the exercise of its jurisdiction in a cause or matter before it, the court must grant, either absolutely or on reasonable conditions that to it seem just, all remedies that any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters may be avoided.

The Supreme Court has also confirmed in Drover v. BCE Inc. that “[t]here is good reason to avoid multiplicity of proceedings” and that “[l]ong ago, [s. 10 of the] the Law and Equity Act … codified these same sentiments.”16

Additionally, it is noteworthy that just because oppression proceedings must be initiated by petition does not mean that they must resolved under the usual petition proceedings framework. As mentioned earlier, they can—and often are—converted to the trial list. As the Supreme Court noted in Nielsen v. Nielsen, “the mere fact that the [enabling statute] contemplates a speedy resolution of oppression claims by way a petition proceeding on affidavits does not mean that the legislature intended that the parties would be immune from a trial on the merits if the circumstances warranted it”.17

At a time when access to civil justice in this province is seriously threatened by incredible delays and litigants often find themselves turning up at the courthouse only to find that there is no judge available, the general policy to avoid multiplicity of proceedings ought to be a policy to which our profession is especially attuned. There is no absolute need for the oppression remedy to be resolved under the petition proceedings framework, and

insofar as the current “rule” demands just that, it only stands to exacerbate delay.

THE FEDERAL SITUATION

The Canada Business Corporations Act18 (the “Federal Act”) also contains an oppression remedy provision, at s. 241. The Federal Act also stipulates that an aggrieved shareholder can seek such relief by “applying” to a court. However, unlike the Act in British Columbia, the Federal Act provides as follows at s. 248:

Summary application to court

248 Where this Act states that a person may apply to a court, the application may be made in a summary manner by petition, originating notice of motion, or otherwise as the rules of the court provide, and subject to any order respecting notice to interested parties or costs, or any other order the court thinks fit.

Thus the Federal Act expressly allows for oppression claims to be brought either summarily by petition or by an original notice of civil claim. The starkly different procedural frameworks applicable to oppression claims brought pursuant to the Act versus the Federal Act was addressed head on by our Supreme Court in Smith v. Unchartered Research and Development Incorporated 19 In that case, an aggrieved shareholder initiated a claim via a notice of civil claim that advanced multiple causes of action, including an oppression claim pursuant to the Federal Act. The defendants sought to have the oppression elements of the notice of civil claim struck, as they “contend[ed] that [the] oppression claim must be commenced separately by petition.”20

The application to strike was dismissed, but the court noted that “a different result would follow if the defendant company was provincially incorporated and the plaintiff was pursuing an oppression claim under s. 227 of [the Act]. In those circumstances, commencement of an oppression claim by petition would be mandatory” but, “on the other hand, there is nothing in the [Rules] or the language of s. 248 [of the Federal Act] that stands in the way of the plaintiff advancing his claim via an action.”21

If an aggrieved shareholder holds shares in a British Columbia company, they must seek relief by petition—if the shares are in a federal company, they can seek relief by petition or notice of civil claim. There is no good reason for this inconsistency.

PROPOSED REFORM

The procedural framework in the federal situation by virtue of s. 248 of the Federal Act is a much more sensible way of doing things. Forcing aggrieved

shareholders to file two different claims for causes of action that arise out of the exact same fact pattern benefits nobody and serves only to frustrate litigants and worsen the already unfortunate capacity issues in our courts. The procedural framework that emerges from the joint operation of the Act and the Rules is also entirely inconsistent with the general policy of this province against the multiplicity of proceedings.

Reform of this situation is, however, relatively straightforward. The Act could be amended to include a provision similar to s. 248 of the Federal Act, so as to expressly permit seeking relief by way of filing an originating notice of civil claim. Alternatively, but perhaps less ideally, Rule 21-2 could be amended to provide for an express exception for claims brought pursuant to s. 227 of the Act.

The current situation results in unnecessary duplication. A template for an effective and modest reform exists federally and ought to be followed in this province.

ENDNOTES

1. Business Corporations Act, SBC 2002, c 57.

2. (1843) 67 ER 189.

3. 2008 SCC 69.

4. Ibid at paras 58–59, 62.

5. Ibid at para 68.

6. Supreme Court Civil Rules, BC Reg 165/2024.

7. (20 January 2020), Vancouver Registry S1913342 (BCSC) [Sahsi].

8. Ibid at para 39.

9. Ibid at para 44.

10. Mirage Trading Corporation v Ghahroud, 2024 BCSC 1552 at para 42.

11. Rule 22-1(7)(d).

12. Rule 22-5(8).

13. 2023 BCSC 211.

14. 2024 BCSC 1894 [2059041 Alberta].

15. Law and Equity Act, RSBC 1996, c 254.

16. 2013 BCSC 1341 at paras 21–22.

17. 2015 BCSC 1622 at para 20.

18. Canada Business Corporations Act, RSC 1985, c C-44.

19. 2023 BCSC 741.

20. Ibid at para 1.

21. Ibid at paras 9–10.

WHY YOU WILL MAKE MORE USE OF AI IN PRACTICE AND HOW

By Robert Diab

Since ChatGPT became public in the fall of 2022, we have seen explosive growth in the capabilities of Artificial Intelligence (“AI”) involving what are called language models. By now, we have all been dazzled by what they can do. Soon we will be using these tools on our phones, watches and other devices and wonder how we lived without them. But as lawyers, we have been waiting to find out whether AI will help to make basic tasks in legal practice easier, and if so how.

I, for one, have been eagerly awaiting a language model to be connected to a Canadian legal database—hoping CanLII would do it by now, but expecting that a commercial vendor (LexisNexis or Westlaw) would get there first. My hope was that the days of running Boolean searches on CanLII or Quicklaw to find a case on X that says Y and having to wade through dozens of results would soon be over.

Ideally, I could formulate a query in plain English, asking for a case that deals with a nuanced question and get three or four decisions directly on point—each summarized effectively in 200 words. That was my vision for how AI would make practice easier.

In the past few months, a different picture has emerged of how we are going to be using AI in practice. Various tools are now available that connect Canadian law to language models, including LexisNexis and Westlaw. But the result is not what I expected. Legal AI does not and—for reasons I am only now coming to understand—cannot make research easier in the ways I was hoping. But other (non-legal) AI tools have appeared that are making things we do as lawyers much easier and will become a big part of the practice.

First, why can these tools not make finding the right case easier? Working with LexisNexis’s new AI+ product has helped me see why. You run a query on AI+, a variation on: “find me a case where X does Y and the court applies law on Z.” I have found that instead of coming back with a case where X does Y, AI+ will often give me case where X occurs and Y occurs or is mentioned, but not where X does Y. And yet, AI+ will assert: “Here are cases where X does Y.” The reason why was not obvious at first.

It happens because AI+ is not reading the cases. The language model is not trained on the cases. (That would lead to a different result: the generation of a list of fake cases that sound like the cases it was trained on.) AI+ is instead using AI to translate your query into a Boolean search string, running it through the database, and coming up a series of hits for X and Y. It then packages the results in a nice-looking mini-memo that amazes you, except for one small thing: it is wrong. None of the cases involve X doing Y. (This does not always happen, of course, but it happens often enough that you lose faith in it.)

We are many years away from this problem being solved. It has to do with what is called the “context window”. This is the amount information you can feed a chatbot when you ask it a question. Many of these tools now allow you to upload an entire document (or several) and ask a question about it (“please summarize this”). When you do this, the entire document becomes part of the prompt. My dream for AI performing legal research the way I was hoping (“find me a case where X does Y”) will only come true when all the cases on CanLII can fit within the context window. This is the only way the language model will read the cases directly instead of running a Boolean search.

At the moment, the best tools available allow you to place something like 100 books into the context window of an AI. I assume that all the cases on CanLII or Quicklaw are orders of magnitude greater than that. I have no crystal ball on this, but I suspect we are many years away from language models with context windows that large operating at scale.

Now for the good news. A set of tools is emerging that point us in a different direction. We are going to make heavy use of language models in legal practice—not to find cases, but to do things with documents we upload. Tools like Google’s free NotebookLM as well as commercial tools like LexisNexis’s AI+ can do enormously helpful things with documents we feed them, functioning with a high degree of accuracy and reliability—so much so that they could make as significant a shift in your practice as the advent of word processors and spreadsheets.

I can lend a sense of what these tools can do by describing how I use NotebookLM. It can handle not just documents, but also links, audio, video files and images. I began by uploading my lecture notes in the law of evidence (30–40 pages for each class) to generate 1,500 word summaries. I now plug in links to cases on CanLII to generate 200-word summaries that give me the vital particulars. I get it to summarize articles on the web, scholarship, YouTube videos, podcasts and more.

Lawyers in British Columbia and elsewhere are beginning to use NotebookLM and similar tools to create drafts of things like memoranda of argu-

ment, opinion letters, questions for cross-examination, contracts, wills and many other kinds of documents. The key word here is draft—and it is a major caveat.

I have found the output of NotebookLM to be strikingly good in terms accuracy and reliability. But everything does still need editing, tweaking, revising and, yes, correction in a few places where law is mischaracterized. These tools will not do our jobs for us. A Law Society practice resource on AI from 2023 makes clear that lawyers are responsible for their work product, have duties of confidentiality (compelling us to avoid uploading anything that would violate confidentiality), and duties of disclosure to the court and to the client.

But, as I and I am sure others are finding, when AI works on your documents, links, etc., the quality of the first draft it produces—a summary of five cases to be handed to a judge, a list of questions for cross (based on a general summary of the fact pattern or will say), an opinion letter consolidating a summary of law on point—is so good, so much better than anything you could have done in under a few hours that it will soon become an indispensable part of your practice.

Once again, everything you do with AI will need close vetting. Every word. But even with the time it takes to verify, check and confirm, in many if not most cases, you will still find yourself far ahead. AI is immensely powerful and reliable when it works on discrete pieces of information. We could not see this initially, because ChatGPT and other tools were pointed outward, at the open web. This gave us a false sense of possibility when it came to law.

But now that the dust is beginning to settle, we can see the shape of tomorrow’s practice today, with AI making at least some of our work easier—and bringing a little magic to it along the way.

ENDNOTE

1. Online: <https://www.lawsociety.bc.ca/Website/ media/Shared/docs/practice/resources/Professional -responsibility-and-AI.pdf>.

ЖЖЖ

Daum Terpkosh Valuations LLP

Patti Daum CPA, CA, CBV

Lucas Terpkosh CPA, CA, CBV

Veronika Kyjonka CPA, CBV

THE “MISCARRIAGE OF JUSTICE” TEST AND THE REASONABLENESS STANDARD OF REVIEW

UNDER SECTION 59(4)(A) OF THE ARBITRATION ACT, S.B.C. 2020, C. 2

By Gerald Ghikas, K.C.

In an article appearing in the March 2025 edition of the Advocate,1 I described how the reasonableness standard of review can be applied on applications for leave to appeal and on appeals concerning extricable questions of law arising out of arbitral awards under s. 59 of British Columbia’s Arbitration Act 2 In this article I discuss why the reasonableness standard applies.3

Under s. 59(4)(a) of the Arbitration Act, leave may be granted to appeal a question of law arising out of an arbitration award, but only if doing so “may prevent a miscarriage of justice”. In Sattva Capital Corp. v. Creston Moly Corp., 4 the Supreme Court of Canada confirmed that to decide whether there may be a miscarriage of justice, a judge hearing a leave application must determine whether the proposed appeal has arguable merit.5 When performing the preliminary assessment of the merits, the judge must have regard to the standard of review that will apply on appeal.6 Sattva states that the standard of review on an appeal on a question of law arising out of an arbitration award is generally reasonableness.7 This was confirmed in Teal Cedar Products Ltd. v. British Columbia. 8 In the light of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , 9 doubts have been raised about whether the standard of review should continue to be reasonableness as stated in Sattva and Teal, or whether a correctness standard should apply.10

As discussed below, there are sound reasons why, as matter of principle, the reasonableness standard should continue to apply in an arbitral context. In addition, the unique language of British Columbia’s legislation sets it apart from the arbitration statutes of other provinces. As stated in Vavilov , legislators may choose statutory language that signals the intended standard of review. Properly interpreted, the requirement under

s. 59(4)(a) of the Arbitration Act for a showing that, without leave, there may be a “miscarriage of justice” rebuts any presumption that a correctness standard should apply on appeal and mandates a reasonableness standard of review.

VAVILOV

In Vavilov, the Supreme Court of Canada stated that, while a reasonableness standard generally applies to judicial review of the decisions of administrative tribunals, a correctness standard is to be applied on “statutory appeals” from decisions of administrative tribunals that concern questions of law.11 This conclusion was said to be justified by “the presumption of consistent expression, according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes”.12 The court found no convincing reason why on a statutory “appeal” the appellate standard of review was not intended to apply. The appellate standard of review concerning questions of law is correctness. The court stressed that “[o]f course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute”.13

In Wastech , a strong minority opinion urged the Supreme Court of Canada to hold that, despite Sattva , the appellate correctness standard applies to all statutory appeals from arbitral awards.14 The opinion of Brown and Rowe JJ. (Côté J. concurring) states:

[121] The appeal in this case was brought pursuant to s. 31 of the Arbitration Act, R.S.B.C. 1996, c. 55, which provides that, either by consent of the parties or with leave of the Supreme Court of British Columbia, a party to an arbitration “may appeal to the court on any question of law arising out of the award”. In light of Vavilov, it follows that the standard of review to be applied by this Court in this case is correctness (Housen, at para. 8). Our conclusion on this point is limited to the specific statutory provision at issue. In every case, the question is one of legislative intention, as reflected in the language of the statute.

The analysis of the minority focused on the use of the word “appeal”. The implications of the statutory requirement to show that there may be a “miscarriage of justice” if leave is not granted were not discussed. The court wisely left the question of statutory interpretation for another day.15 Since then, courts and commentators have debated whether Vavilov overruled Sattva and Teal by substituting a correctness standard of review for a reasonableness standard on statutory appeals from arbitral awards on questions of law. In British Columbia, the Court of Appeal has avoided deciding the matter.16

While there are similarities among the provincial statutes authorizing appeals from arbitration awards on questions of law, there also are significant differences.17 The debate stimulated by Vavilov has not yet considered these differences.

SECTION 59

The language of s. 59 of British Columbia’s Arbitration Act is unique. Subsection 59(4) provides that a justice of the Court of Appeal may grant leave to appeal to the Court of Appeal “on any question of law arising out of an arbitral award”, if the justice determines that:

(a)the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice (referred to in this article as “the first ground”);

(b)the point of law is of importance to some class or body of persons of which the applicant is a member (referred to in this article as “the second ground”); or

(c)the point of law is of general or public importance (referred to in this article as “the third ground”).18

The modern approach to statutory interpretation 19 requires that the words of a statutory provision be read in their context. The intent of the legislature is to be discerned from a consideration of the grammatical and ordinary sense of the language of the statute and the scheme and object of the statute. Section 59 must therefore be interpreted in the context of the Arbitration Act as a whole and consistently with the purpose of the legislation. The word “appeal” and the phrase “may prevent a miscarriage of justice” must be considered together, and in context.

Despite the use of the word “appeal” in s. 59, s. 59(4)(a) of the Arbitration Act makes clear that, where a question of law arising out of a domestic arbitration award impacts only the parties to the arbitration, the Court of Appeal may grant leave only if doing so “may prevent a miscarriage of justice.” I contend that, when this requirement is interpreted in the light of the Arbitration Act as a whole and the statutory scheme, an arbitral tribunal’s decision on a question of law will amount to a “miscarriage of justice” only where the tribunal’s determination of that question is unreasonable; that is, only if the tribunal did not engage in a rational reasoning process or the decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.20 A correctness standard of review may be appropriate only if the determination of the question of law also impacts

persons who were not parties to the arbitration, or the determination of the question is a matter of general or public importance, so that leave to appeal may be granted under s. 59(4)(b) or (c).

THE LEGISLATIVE HISTORY OF SECTION 59

The text of the appeal provision in British Columbia’s arbitration statutes has been carried forward through successive amendments and re-enactments.21 This language originated in a May 1982 report of the Law Reform Commission of British Columbia (“LRC Report”),22 which recommended substantial changes to the existing arbitration statute.23 The LRC Report led to the enactment of the 1986 Commercial Arbitration Act, 24 the predecessor to the Arbitration Act. The requirement of a question of law arising out of the award replaced the more restrictive requirement that a reviewable error of law must be visible “on the face of the award”.25 The LRC Report also recommended that appeals should be permitted only with leave or by consent.26

The language that now appears as s. 59(4) of the Arbitration Act was recommended in the LRC Report.27 In arriving at its recommendation, the commission considered the approach to granting leave that had recently been endorsed by the House of Lords in Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. 28 The commission noted that the House of Lords had focused on “deciding between the rival merits of assured finality on the one hand and upon the other the resolution of doubts as to the accuracy of the legal reasoning followed by the arbitrator in the course of arriving at his award, having regard in that assessment to the nature and circumstances of the particular dispute”.29

The LRC Report also noted that the House of Lords decided that leave to appeal on a point of law should be refused in the case of a one-off contract if the court was satisfied that “the arbitrator might be right”.30 By contrast, when the dispute involved interpretation of a standard form contract, the court favoured granting leave to ensure a high degree of legal certainty, having regard to the likelihood of “similar transactions between other parties engaged in the same trade” and the public interest in certainty and legal “accuracy”.31

The commission stated that while it was “generally sympathetic with the spirit” of the approach taken by the House of Lords, “local circumstances do not warrant as limited an approach to this question in this Province.”32 The commission proposed its own criteria for granting leave to be included in proposed new arbitration legislation.

The commission explained its reasons for recommending the criteria that now appear in s. 59(4):

The general thrust of these criteria is to permit appeals where the determination of the point of law has ramifications beyond the immediate issue in dispute, either as between the parties or for the population at large. The intent is to prevent substantial miscarriages of justice, and also to ensure that there is some systematic development of law in arbitrations.33

This explanation indicates that the commission distinguished between questions of law that have an impact only on the arbitration parties and those that have an impact on “the population at large”. In the former case, to justify a grant of leave the impact on the parties must result in “a substantial miscarriage of justice”. In the latter, the tribunal’s decision must impact the population at large, in the sense that a judicial decision on the legal issue may contribute to the systematic development of law.

JUDICIAL CONSIDERATION OF SUBSECTION 59(4)

The text of s. 59(4) first appeared as s. 31(2) of the 1986 Commercial Arbitration Act. 34 That section was considered by the Court of Appeal in 1989, in Domtar v. Belkin 35 After emphasizing that it is essential for the applicant to state the question or questions of law on which leave is requested,36 Lambert J.A., writing for the court, found that several of the proposed questions of contractual interpretation passed that threshold requirement.37 While emphasizing the distinction between a question of law “arising out of the award” and a question of law ”arising out of the arbitration”, he also found that those questions arose out of the award.38

Lambert J.A. then turned to the grounds for granting leave to appeal, as then set out in s. 31(2).39 He found that unless one of the three stated grounds for granting leave is met, leave to appeal must be refused, but that even if one of the three grounds is met, the court still has a “residual discretion” to refuse leave.40 As the applicant had conceded that the second and third grounds for granting leave were not met, Lambert J.A. focused his analysis on the first ground. He said that the second and third grounds “are intended to cover cases where people who are not parties to the arbitration may be affected by its outcome or its reasoning”, whereas the first ground focused on the effect of the award on the parties themselves.41

With respect to the interpretation of the first ground, Lambert J.A. said: The words "the importance of the result of the arbitration to the parties justifies the intervention of the court" seem to me to mean only that there must be enough at stake either in terms of principle or money, to make the extra step of going to court worthwhile. The words "and the determination of the point of law may prevent a miscarriage of justice" seem to me to mean either that the point of law must be one that affects the result, or that the correct determination of the point of law, and only the correct determination of the point of law, will bring about a just result, or

both. Those points seem to me to be likely to be present in every case, particularly if one considers that a question of law will not justify the intervention of the court unless it affects the outcome.42

Lambert J.A. found that the first ground for granting leave did not require a consideration of the merits of the proposed appeal. He found that the “real question”, whether the proposed appeal was shown to have sufficient merit, was to be considered at a separate, second stage, when the court decided whether to exercise its residual discretion to refuse leave.43

Lambert J.A. found that in exercising that residual discretion to refuse leave, the court must be mindful that allowing free and ready access to the courts will undermine the perceived advantages of arbitration, such as speed, privacy and finality, but that “the advantages of arbitration are not to be bought at the expense of fairness in matters of procedure, or a properly considered determination on matters of substance”. He noted that the Commercial Arbitration Act provided a separate remedy to address alleged procedural unfairness.44

According to Domtar, the residual discretion to refuse leave should be exercised differently depending on which of the three grounds for granting leave has been established. Where the applicant relies on the first ground for granting leave, preserving the advantages of arbitration is an important consideration. Lambert J.A. agreed with the statement of Lord Diplock in Pioneer Shipping that, if the question of law involves the construction of a “one of a kind” clause in a “one of a kind” agreement:

leave should not normally be given unless it is apparent to the judge, on a mere perusal of the reasoned award itself without the benefit of adversarial argument, that the meaning ascribed to the clause by the arbitrator is obviously wrong; but if on such perusal it appears to the judge that it is possible that argument might persuade him, despite impression to the contrary, that the arbitrator might be right, he should not grant leave; the parties should be left to accept, for better or for worse, the decision of the tribunal that they had chosen to decide the matter in the first instance.45

Consistent with that approach, Lambert J.A. concluded that where the award impacts only the parties to the arbitration, as is the case under s. 59(4)(a):

If the decision of the arbitrator in such cases is so obviously wrong that he cannot have reached his decision on a matter of substance by a considered decision-making process, which is what the parties have contracted for, then leave should be granted. Otherwise, it should be refused.46

In cases falling under the second or third ground, Lambert J.A. found that concerns about furthering the objectives of arbitration should carry less weight:

In cases where the disentitlement is avoided by compliance with para. (b) or para. (c) the effect of the award or the point of law on people who were not parties to the arbitration will tend to dispel the advantages of arbitration, none of which accrue to non-parties. The function of the court to protect those who have not had an opportunity to protect themselves will tend to dictate that leave be granted.47

While the phrase “obviously wrong” might suggest a focus on legal correctness, the judgment of Lambert J.A. makes clear that to be “obviously wrong” the tribunal’s decision must not have been arrived at “by a considered decision-making process”. The court found that the decisions of the arbitrator on the relevant questions of law were not “clearly wrong … [t]o the contrary, they are carefully considered in their context in the individual clauses and in the context of the agreement as a whole”.48 The court found that the residual discretion to refuse leave had been properly exercised by the chambers judge.49

The judgment in Domtar was reconsidered in September 2000 by five justices of the Court of Appeal, in BCIT (Student Association) v. BCIT 50 A judge of the British Columbia Supreme Court had refused to grant leave to appeal from an arbitration award involving the interpretation of a long-term lease.

The chambers judge had applied the “obviously wrong” test for leave to appeal set out in Domtar. The appellant contended that the application of the obviously wrong test at the leave to appeal stage placed too high a burden on an applicant to establish the merits of its proposed appeal. Saunders J.A. wrote the judgment of the Court of Appeal. Justice Saunders found that the imposition of the “obviously wrong” test on a leave to appeal application was an unauthorized fetter on the statutory discretion of a judge on a leave application.51 She agreed that judges have discretion to refuse leave even if one of the stated grounds for leave was met.52 She also agreed that the strength of the proposed appeal is a factor to be considered when the residual discretion is exercised.53 However, she found that it was not appropriate to require, as a condition of being granted leave to appeal, that an applicant must prove that the tribunal’s decision on the relevant question of law was obviously wrong, in addition to meeting the prescribed statutory grounds.54 She found that only a preliminary consideration of the merits of the proposed appeal should be performed on an application for leave.55 She wrote: [30] In considering the merits of an appeal or lack thereof, an appellant should establish more than an arguable point. The merits of the appeal, while not requiring that the award is obviously wrong or the decision is patently unreasonable, must have sufficient substance to warrant the appeal proceeding. And on this I would not expect the appeal itself to be argued on the leave application.56

The error in Domtar, corrected by BCIT, lay in the premature determination of the merits, not in applying an “obviously wrong” standard to make that determination. Justice Saunders did not directly opine on the standard of review to be applied when the merits of the appeal are decided. She did, however, appear to equate the “obviously wrong” test with a “patently unreasonable” test.

Fourteen years later, the language of what is now s. 59(4) of the Arbitration Act was considered for the first time by the Supreme Court of Canada, in Sattva, in a judgment written by Rothstein J. He did not agree with Saunders J.A. that an applicant for leave must show that its proposed appeal is “more than arguable”, and found instead that “the appropriate threshold for assessing the legal question at issue … is whether it has arguable merit”.57

Justice Rothstein was clear that when performing the preliminary assessment of the merits at the leave to appeal stage, the court must take into account the standard of review that will be applied to decide the appeal, if leave is granted:

[75] Assessing whether the issue raised by an application for leave to appeal has arguable merit must be done in light of the standard of review on which the merits of the appeal will be judged. This requires a preliminary assessment of the applicable standard of review. As I will later explain, reasonableness will almost always apply to commercial arbitrations conducted pursuant to the Arbitration Act, except in the rare circumstances where the question is one that would attract a correctness standard, such as a constitutional question or a question of law of central importance to the legal system as a whole and outside the adjudicator’s expertise. Therefore, the leave inquiry will ordinarily ask whether there is any arguable merit to the position that the arbitrator’s decision on the question at issue is unreasonable …58

Justice Rothstein also disagreed with Saunders J.A.’s finding that, where the first ground for granting leave is invoked, the consideration of the merits is best done as part of the exercise of the residual discretion. He noted that, unlike the other two grounds, to satisfy the first ground for leave to appeal the applicant must show that allowing leave to appeal “may prevent a miscarriage of justice”. He concluded that “a preliminary assessment of the question of law is an implicit component in a determination of whether allowing leave ‘may prevent a miscarriage of justice’.”59 He continued:

[79] In sum, in order to establish that “the intervention of the court and the determination of the point of law may prevent a miscarriage of justice” for the purposes of s. 31(2)(a) of the [Arbitration Act], an applicant must demonstrate that the point of law on appeal is material to the final result and has arguable merit.60

When he wrote of “arguable merit”, Rothstein J. had in mind, as he had stated earlier, a reasonableness standard of review. Under Sattva, to obtain leave the applicant must show that it is arguable that the tribunal’s decision on the question of law was not reasonable. A “miscarriage of justice” occurs only when the decision of the tribunal on the question of law is unreasonable and materially impacts the outcome of the case.

It would go too far to suggest that the courts have expressly decided that a reasonableness standard of review is required for appeals from arbitral awards on questions of law because of the “may prevent a miscarriage of justice” language in s. 59(4)(a). Pre-Vavilov, that analysis did not need to be undertaken because the courts were proceeding on the basis that the standard of review was whether the tribunal’s decision on the question of law was “obviously wrong”, “patently unreasonable” or “unreasonable”.

As the appropriateness of the reasonableness standard has been challenged, however, based on the presumption that the use of the word “appeal” signals an intent to mandate a correctness standard, close regard must be had to all of the language used in the Arbitration Act, including the phrase “may prevent a miscarriage of justice”. Understanding what constitutes a “miscarriage of justice” informs not only the test for leave, but also the standard of review.

Is there a “miscarriage of justice” if the party-appointed tribunal carefully analyzes the facts, law and arguments relevant to a question of law and arrives at a reasonable decision? Does the tribunal’s finding become a “miscarriage of justice” if the Court of Appeal, or at least a majority of its members, do not agree with it? Why does the legislation use the phrase “may prevent a miscarriage of justice” rather than, for example, “may correct a material error”?

To determine what the legislature intended by its choice of language, one must perform the analysis demanded by the modern approach to statutory interpretation.

THE INTERPRETATION OF SUBSECTION 59(4)(a)

Vavilov instructs that, although there is a presumption that the legislature’s use of the word “appeal” is an indication that statutory appeals are to be decided using a correctness standard, that presumption may be rebutted by other statutory language. The word “appeal” is to be interpreted in context, applying modern principles of statutory interpretation. When s. 59 of the Arbitration Act is interpreted in the context of s. 59 as a whole, in the context of the entire statute, and having regard to the purpose and objects of the statute it is clear that the legislature intended a reasonableness stan-

dard of review to be applied on appeals for which leave is granted under s. 59(4)(a).

Unlike statutes authorizing administrative decision-making, the Arbitration Act’s main purpose is not to regulate private rights in the public interest. To the contrary, the focus of the Arbitration Act is to recognize and enforce the private contractual rights of those who make arbitration agreements and to curtail the impulse of courts to intervene.

The Arbitration Act states that, except as it specifically authorizes, arbitral proceedings, awards, orders or rulings of arbitral tribunals “must not be questioned, reviewed or restrained by a proceeding under the Judicial Review Procedure Act or otherwise”.61 Granting leave to appeal on a question of law arising out of an arbitral award under s. 59(4) is one authorized mode of intervention,62 but the scope of the right to seek leave is “narrowly circumscribed”.63 The justice hearing a leave application must be satisfied that there is an extricable question of law and that the question of law arises out of the award, before considering whether any of the grounds for leave have been established. It is not sufficient to show that these threshold requirements are arguably met. In British Columbia, leave may be granted if, and only if, the applicant also satisfies a justice of the Court of Appeal that one of the three enumerated grounds for doing so exists.64 And even then, there is a residual discretion to withhold leave.

The statute supports both the general goals of arbitration and the preferences of individual arbitration parties, by consistently deferring to the agreement of the parties. By choosing a place of arbitration inside or outside British Columbia, parties can effectively opt in or opt out of the statute.65 If the statute applies, the parties have the freedom to vary many of its provisions.66 Under s. 59(3) the parties can, by agreement, opt out of the right to seek leave to appeal on a question of law arising out of an award.67 These characteristics are not shared by statutes that establish regulatory regimes and administrative tribunals. What this means for the interpreter is that caution should be exercised before presuming that words and phrases used in the Arbitration Act are intended to have the same meaning as in other statutes, including administrative law statutes. The word “appeal” and phrases such as “miscarriage of justice” should be interpreted having regard to the goals and expectations of parties who agree to resolve their disputes through arbitration. The Arbitration Act recognizes that parties to an arbitration agreement can establish the parameters of the decision the arbitrators are authorized to make and prescribe the process by which it will be made, and thereby define the “justice” for which they have bargained.

The courts have long recognized the objectives of parties who, despite having access to the domestic court system, choose to resolve disputes through arbitration.68 Those objectives include finality of the result, privacy of the process, the ability to select a decision-maker with suitable skills and experience, and procedural efficiency. The parties to an arbitration agreement agree that the dispute will be resolved by the decision of an arbitrator, rather than a judge.69 The parties empower the arbitrator to make all necessary findings of fact and law based on the evidence and argument the parties present.70 Unless they agree otherwise, the rules of evidence will not apply. The arbitral tribunal “may decide all evidentiary matters, including the admissibility, relevance, materiality and weight of any evidence, and may draw such inferences as the circumstances justify”.71 The parties may by agreement designate the law applicable to their dispute.72 If the parties make no such designation, the arbitral tribunal may choose the applicable law.73 The parties authorize the tribunal to decide only the dispute that the parties present.74 The parties agree that the arbitrator’s opinion is to be expressed in an award which “is final and binding on all the parties to the award.”75

If an arbitrator chosen by the parties applies the applicable laws and issues a “final and binding” award, in what circumstances might it be necessary for leave to appeal to be granted to prevent a “miscarriage of justice”? In the specific context in which the phrase “miscarriage of justice” is used, what does it mean?

THE MEANING OF “MISCARRIAGE OF JUSTICE”

The phrase “miscarriage of justice” has been judicially considered in other contexts. Apart from numerous criminal cases concerning alleged wrongful convictions,76 the phrase has most often been considered when a party to a civil court proceeding applies to reopen the proceeding or for a reconsideration of a decision that would otherwise be final, and argues that not granting the relief sought would risk a miscarriage of justice. Typically, the alleged defects relate to the process that led to a decision, and the correctness of the decision is not directly at issue. In Lin v. Tang, 77 citing the decision of the Privy Council in Robins v. National Trust Co. Ltd., 78 Huddart J.A. wrote: In my view, miscarriage of justice means that which is not justice according to law. A miscarriage of justice will almost always be procedural. The blemish must be such as to make the judicial procedure at issue not a judicial procedure at all.79

After finding that the impugned proceedings had been conducted fairly and in accordance with the rules of court, Huddart J.A. applied an objective

test to decide whether the alleged procedural flaws amounted to a “miscarriage of justice” and found that “a reasonable, well-informed member of the public would not see any unfairness, prejudice, or miscarriage of justice in the circumstances of this case”.80

In Rémillard v. Rémillard , 81 the Manitoba Court of Appeal considered whether a “miscarriage of justice” had occurred so as to justify a re-hearing. After citing Robins and Lin, the court said “miscarriage of justice connotes a result that is perverse and fundamentally wrong”.82

Under the Arbitration Act, if the procedure leading to an award is not in accordance with the agreed process and the minimum statutory requirements,83 there are statutory remedies. The aggrieved party may seek to set aside the award.84 A biased arbitrator may be removed.85 As the scope of a potential appeal under s. 59 of the Arbitration Act is limited to a question of law arising out of the award, the phrase “miscarriage of justice” refers to an error in the decision-making process. If the phrase is to be interpreted consistently with its interpretation in other contexts, the “blemish” on a tribunal’s decision on a question of law must relate to the analytical process, or lack of analytical process, by which the decision was reached. That analytical process must have been such that any “reasonable, well-informed member of the public” would consider that justice was not done.

When a correctness standard is applied on appeal, the answer given to a question of law by the majority of the final level of appellate court to decide the matter is deemed “correct”. Other answers to the same question are deemed to be not “correct”. The law recognizes, however, that there may be more than one reasonable answer to a question of law. This is why, under Vavilov, absent any statutory reference to an “appeal”, decisions of administrative tribunals on questions of law are to be reviewed applying a reasonableness standard of review. In Vavilov the court emphasized that “[r]easonableness review is methodologically distinct from correctness review”.86 The court said:

[15] In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.87

[83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in

these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. … Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.88

The parties to an arbitration agreement contract to be bound by the tribunal’s judgment on issues of law. If the tribunal’s analysis and opinion on a question of law is not unreasonable, the specific form of justice for which the parties bargained has not “miscarried”. The opinion of the tribunal on a question of law can amount to a “miscarriage of justice” only if it is tainted by an act or omission—a gestational flaw—in the arbitrator’s opinion-forming that the parties implicitly did not agree to accept, resulting in a decision that is not reasonable in the sense that it is “perverse and fundamentally wrong” so that a “reasonable, well-informed member of the public” would consider that justice was not done. The parties’ acceptance of the right to seek leave to appeal as part of their arbitration agreement (by not opting out of s. 59) does not justify a different conclusion. The parties thereby agree that the otherwise final decision set out in the award may be the subject of an application for leave to “appeal”, but they do so on the basis that to obtain leave they must demonstrate that there may have been a miscarriage of the justice for which they bargained.

The word “appeal”, in conjunction with the phrase “miscarriage of justice”, also must be considered in the context of s. 59 as a whole. “Appeal” is used with reference to all three grounds for granting leave. The requirement concerning a “miscarriage of justice” appears only as an element of the first ground for obtaining leave. In Sattva, Rothstein J. properly attributed significance to this fact.

The full text of the first ground is “the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice”. If the use of “appeal” was intended by the legislature to signal that all leave applications should be decided on the basis that a correctness standard will apply, then what is the purpose of the requirement to show that “the determination of the point of law may prevent a miscarriage of justice”? If a correctness standard was intended, it would have been sufficient to say that leave to “appeal” may be granted if “the importance of the result of the arbitration to the parties justifies the intervention of the court”. That is precisely the

approach taken in describing the second and third ground for granting leave, neither of which contain any language akin to the “miscarriage of justice” requirement. The additional language used to describe the first ground indicates that when considering the first ground for granting leave, the potential merit of an “appeal” is to be assessed differently than under the second and third grounds.

The use of different standards to decide appeals on questions of law makes sense, when one considers the differences in the circumstances addressed by the first ground and by the second and third grounds.

Decisions of arbitrators bind only the parties to the arbitration. The tribunal’s decision on a question of law has no stare decisis effect. Unless leave to appeal is granted and a court decision is published, the content of the award will remain private. As a consequence, in the circumstances described in the first ground for granting leave, in which only the parties are impacted by the award, there is no public interest in the “correctness” of the tribunal’s decision on a point of law (i.e., whether it is the decision that a court would have reached based on the same facts). Only the interests of the parties to the arbitration agreement are at stake. As Lambert J.A. put it in Domtar, what matters to the parties is whether the decision of the tribunal was not reached “by a considered decision-making process, which is what the parties have contracted for”.

In the rare circumstances where the interests of persons who did not agree to arbitration and did not participate in the process are indirectly impacted by a tribunal’s decision on a question of law, as contemplated by the second ground, there is a rationale for requiring that the decision reflect what a court would decide if the third party interests had been directly litigated. Where leave is granted under the third ground, on the basis that the question of law is of public importance, the objective is to decide the matter publicly, in a manner that will further the orderly development of the law. There is no requirement under either the second or third ground to show that there may have been a miscarriage of justice. Assuming that such a presumption can properly be applied to arbitration legislation, there is no language to rebut the Vavilov presumption, arising solely from the use of the word “appeal”, that a correctness standard of review will apply.

While it might seem odd for different standards of review to apply to different grounds of appeal, there is a rational basis for such a distinction. When the second or third ground for leave is invoked, the standard of review should reflect the broader interests at stake. The key point is that the legislature included the “miscarriage of justice” requirement as part of the first ground, to signal that a standard of review other than correctness applies to situations that impact only the arbitration parties.

The conclusion that different standards of review apply in different situations arising under a single statute is in harmony with the general approach taken in Vavilov. The Supreme Court of Canada established a general rule that a reasonableness standard of review applies to decisions of administrative tribunals. However, it found that there are exceptions to that general rule where “correctness review is required by the rule of law”, including situations where the review concerns “general questions of law of central importance to the legal system as a whole”. In relation to decisions of arbitral tribunals, by including language to rebut any presumption arising solely from the use of the word “appeal”, the legislature has signalled its intention that in the vast majority of cases a reasonableness standard of review will apply. Those are situations in which correctness is not required by the rule of law. The exceptions, in which a correctness standard would apply, are the limited number of cases where leave may be justified because broader interests are at stake.

In summary, when the word “appeal” and the requirement that the applicant show that granting leave “may prevent a miscarriage of justice” are interpreted in context, considering all of s. 59, and the other provisions of the statute, the statutory scheme and the legislative objectives, it is clear that the legislature intended that the standard of review on an appeal based on the first ground for obtaining leave is reasonableness.

SUMMARY OF CONCLUSIONS

In Vavilov, the Supreme Court of Canada relied on a rebuttable presumption to find that when a statute provides for an “appeal” from a decision of an administrative tribunal on a question of law, the legislature intends that the appeal will be decided applying the appellate standard of correctness. The court has not yet decided that the same presumption applies when an arbitration statute provides for an “appeal” on a question of law arising from an arbitral award. There are cogent arguments that the presumption should not apply. There are significant differences between the purposes and objects of arbitration statutes and statutes that regulate administrative tribunals, and between contractually mandated, statutorily facilitated, arbitral decision making and statutorily mandated administrative decision making. The modern approach to statutory interpretation requires that these differences be taken into account. There is a strong argument that on the basis of these contextual differences alone, it is not appropriate to presume that the word “appeal” necessarily means the same thing when used in reference to an arbitral award as it does when it is used in reference to an administrative decision.

In the case of s. 59 of British Columbia’s Arbitration Act, because of the unique language of that statute there are additional reasons not to interpret it to require a correctness standard for all “appeals”.

To determine whether one of the three specified grounds for granting leave has been met, the judge deciding a leave application must determine whether it is arguable that the standard of review can be met, if leave is granted. If the standard of review assumed on a preliminary assessment of the merits is not the same as the standard of review to be applied on appeal, the legislative objective of screening out unmeritorious appeals and allowing potentially meritorious appeals to proceed will be frustrated.

If the first ground for granting leave is invoked, the applicant must show that the result of the arbitration is of sufficient importance to the parties to justify the intervention of the court. The applicant also must show that there is arguable merit to the proposed appeal. In deciding whether there is arguable merit, in s. 59(4)(a) the legislature has required that the applicant show that granting leave “may prevent a miscarriage of justice”. That language informs the standard of review. The statutory language rebuts any presumption, based on the use of the word “appeal”, that a correctness standard of review applies to appeals allowed under s. 59(4)(a).

In its ordinary sense, “miscarriage of justice” refers to a decision that cannot be allowed to stand because of a flaw in the process by which it was reached. It refers to a decision that is so “perverse and fundamentally wrong” that a “reasonable, well-informed member of the public” would consider that justice was not done. Section 59 does not address errors in the procedures leading to the making of the award. Recourse from such errors is provided under other provisions of the statute. When considered in the context of s. 59 and the statute as a whole, and with a view to the legislative objectives, it is clear that to amount to a “miscarriage of justice” the award must be beyond the scope of what the parties agreed to accept. The award must have been “unreasonable” in the sense that it suffers from one of the two “fundamental flaws” described in Vavilov: “if there is a failure of rationality internal to the reasoning process, or if the decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it”.

If the Vavilov presumption—that the use of the word “appeal” imports a correctness standard of review—applies at all to the interpretation of the Arbitration Act, then, when the second or third ground for obtaining leave to appeal is invoked, the preliminary assessment of the merits must be performed on a different basis than when the first ground is invoked. The statute does not require the applicant to show that there may have been a

miscarriage of justice. There is no language to rebut the Vavilov presumption that a correctness standard of review is intended. Because the interests of third parties or the general public are engaged, and because the language of the statute suggests no other standard, the merits should be assessed on the basis that a correctness standard of review will be applied on appeal, if leave is granted under the second or third ground.

ENDNOTES

1. Gerald W Ghikas, KC, “The Reasonableness Standard of Review on Appeals on Questions of Law Under Section 59 of the Arbitration Act” (2025) 83 Advocate 185 (“Reasonableness Standard”).

2. Arbitration Act, SBC 2020, c 2, s 59(4)(a) [Arbitration Act].

3. This article was originally scheduled for publication elsewhere, but, although it was peer-reviewed and approved for publication, due to delays I decided to withdraw it and submit it to the Advocate.

4. Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 [Sattva].

5. Ibid at para 79.

6. Ibid at para 75.

7. Ibid at para 106.

8. Teal Cedar Products Ltd v British Columbia, 2017 SCC 32 [Teal].

9. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].

10. See e.g. Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 at paras 117–122 [Wastech].

11. Vavilov, supra note 9 at para 37.

12. Ibid at para 50.

13. Ibid at para 57.

14. Wastech, supra note 10 at para 121.

15. Ibid at para 45.

16. Nolin v Ramirez, 2020 BCCA 274 at paras 32–39; Spirit Bay Developments Limited Partnership v Scala Developments Consultants Ltd, 2022 BCCA 407 at paras 52–58; Escape 101 Ventures Inc v March of Dimes Canada, 2022 BCCA 294 at paras 97–101; Mann v Grewal, 2023 BCCA 88 at paras 34–37; 1550 Alberni Limited Partnership v Northwest Community Enterprises Ltd, 2023 BCCA 141 at para 77. In lululemon athleIca canada inc v Industrial Color ProducIons Inc, 2021 BCCA 428, the court found that a correctness standard applied when an application was brought to set aside an international arbitration award under s 34(2)(a)(iv) of the International Commercial Arbitration Act, RSBC 1996, c 233. That was not a statutory appeal from a domestic arbitration award. The issue was whether the tribunal had exceeded its jurisdiction. The standard of review for jurisdictional findings is always correctness: Mexico v Cargill, Incorporated, 2011 ONCA 622 at para 48.

17. Section 45 of the Arbitration Act, 1991, SO 1991, c 17, provides that a court shall grant leave to

appeal only if it is satisfied that (a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and (b) determination of the question of law at issue will significantly affect the rights of the parties. Substantially the same language appears, for example, as s 44(2.1) of the Arbitration Act, RSA 2000, c A-43; s 44(2) of The Arbitration Act, CCSM c A120; and s 45(2) of The Arbitration Act, 1992, SS 1992, c A-24.1.

18. Arbitration Act, supra note 2, s 59(4).

19. R v Wolfe, 2024 SCC 34 at para 105.

20. Vavilov, supra note 9 at para 101. See also “Reasonableness Standard”, supra note 1.

21. See Commercial Arbitration Act, SBC 1986, c 3, s 31(2) [1986 Commercial Arbitration Act]; Commercial Arbitration Act, RSBC 1996, c 55 s 31(2); Arbitration Act, supra note 2, s 59(4).

22. Report on Arbitration, LRC 55, May 1982 [LRC Report]. The pages of the online version of the LRC Report are not numbered. The LRC Report sets out a series of numbered “Recommendations for Reform”, each accompanied by commentary. Citations to the Commission’s commentary in this article to the LRC Report are by recommendation number.

23. Arbitration Act, RSBC 1979, c 18 [1979 Arbitration Act].

24. 1986 Commercial Arbitration Act, supra note 21.

25. LRC Report, supra note 22 at Recommendation 38.

26. Ibid at Recommendation 38.

27. Ibid at Recommendation 40.

28. Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 [Pioneer Shipping].

29. LRC Report, supra note 22 at Recommendation 40.

30. Ibid at Recommendation 40.

31. Ibid

32. Ibid

33. Ibid

34. 1986 Commercial Arbitration Act, supra note 21.

35. Domtar v Belkin, 1989 CanLII 238 (BC CA) [Domtar]. Under the 1986 Commercial Arbitration Act, supra note 21, applications for leave to appeal and substantive appeals from domestic arbitration awards were made to a judge of the Supreme Court of British Columbia. Domtar concerned an appeal from a chambers judge’s refusal to grant leave to appeal.

36 . Domtar, supra note 35 at 4.

37. Ibid at 6, 7. Quaere whether the same conclusion would be reached now in the light of Sattva and Teal

38. Ibid at 8. The requirement that the question of law arise out of the award is discussed further below.

39. Ibid at 9.

40. Ibid at 10.

41. Ibid

42. Ibid at 10, 11.

43. Ibid at 12.

44. Ibid at 13, 14.

45. Ibid at 15, citing Pioneer Shipping, supra note 28 at 1039.

46. Ibid at 16.

47. Ibid at 14, 15.

48. Ibid at 16, 17.

49. Ibid

50. BCIT (Student Association) v BCIT, 2000 BCCA 496 [BCIT]. See also BCIT (Student Association) v BCIT, 2000 BCCA 62, in which the Court of Appeal dismissed an appeal in a separate proceeding commenced by the Student Association under s 30 of the Commercial Arbitration Act, which allowed court intervention in the case of “arbitral error”. That term was defined to include exceeding the tribunal’s powers and failure to observe the rules of natural justice. This is an instance where complaints about procedural and substantive matters were, properly, pursued through separate statutory processes.

51. BCIT, supra note 50 at para 24.

52. Ibid at para 31.

53. Ibid at para 29.

54. Ibid at para 24.

55. Ibid at para 30.

56. Ibid at paras 29–31.

57. Sattva, supra note 4 at para 74.

58. Ibid at para 75.

59. Ibid at para 77.

60. Ibid at para 79.

61. Arbitration Act, supra note 2 at s 4.

62. Ibid at s 59.

63. Sattva, supra note 4 at para 38.

64. Arbitration Act, supra note 2, ss 59(1) and 59(4).

65. Ibid, ss 2(1), 2(2)(a)–(d), 2(4).

66. Ibid, see e.g. s 8(1)(2) (Commencement of Arbitral Proceedings); s 14(2)(3) (Appointment of Arbitrator); s 16(1) (Independence and Impartiality of Arbitrator); s 28(2)(3) (Evidence); s 30(1) Hearings and Written Proceedings); s 32(1) Procedural Powers of Arbitral Tribunal); s 34(1)(4) (Expert Appointed by Tribunal); s 37(1) (Preliminary Orders); s 46(1) (Majority Decision); s 48(3) (Form, Content and Delivery of Award); s 50(2) (Costs); s 51(1)(2) (Interest); s 59(3) (Appeals on Questions of Law); s 63(1)(22) (Privacy and Confidentiality).

67. Ibid, s 59(3).

68. International arbitration agreements are made with a view to ensuring a “neutral” forum and obtaining an award that is easily enforceable internationally under the New York Convention. These concerns are not relevant to the choice between litigating in a domestic Canadian court and arbitrating before a domestic arbitral tribunal. The choice to arbitrate is

based on the desire to avoid undesirable characteristics of the court process.

69. Arbitration Act, supra note 2, s 5.

70. The law applicable to the substance of a dispute is the law designated by the parties to the arbitration agreement. If the parties have not designated the law applicable to the substance of the dispute, the arbitral tribunal may choose the applicable law. See Arbitration Act, supra note 2, s 25(1)(2).

71. Ibid, s 28(1).

72. Ibid, s 25(3).

73. Ibid, s 25(2). Section 25 of the Arbitration Act requires an arbitral tribunal to decide the substance of a dispute “in accordance with the applicable law”. The phrase “applicable law” refers to a legal system—a body of provincial, state or national laws— that is to apply. The requirement is that the tribunal is to apply the designated body of law rather than some other body of law or notions of what is fair. Section 25 does not address the question of whether, when applying the applicable law, the tribunal must arrive at a decision that will satisfy a “correctness” standard or a “reasonableness” standard on appeal.

74. If an arbitral tribunal decides a matter that deals with a dispute not falling within the terms of the arbitration agreement or contains a decision on a maker that is beyond the scope of the arbitration agreement, the award may be set aside: Arbitration Act, supra note 2, s 58(1)(c). Parties may further limit the scope of the arbitral tribunal’s jurisdiction by defining the scope of the specific dispute submitted to arbitration. Arbitrators generally do not perform, and indeed are actively discouraged by parties from performing, independent legal research, as it is for the parties to identify not only the facts but also the legal principles relevant to determine their dispute. When a tribunal secretary is appointed, it is common practice for the parties to stipulate that the secretary will not perform legal research. If an arbitrator is aware of an uncited legal authority that may have a bearing on their decision making, the practice is to bring the authority to the attention of the parties and invite comment.

75. Arbitration Act, supra note 2, s 54.

76. See e.g. R v Legeboko, 2016 BCCA 386. These cases concern whether procedural irregularities give rise to a miscarriage of justice within the meaning of s 686(1)(a)(iii) of the Criminal Code by creating unfairness or an appearance of unfairness. There are obvious contextual differences between criminal proceedings and arbitral proceedings. The irregularties considered also are purely procedural. The issue of when a decision on a question of law might give rise to a miscarriage of justice is not considered.

77. Lin v Tang, 1997 CanLII 2675 (BCCA) [Lin].

78. Robins v National Trust Co Ltd, 1927 CanLII 469, [1927] 2 DLR 97 (UK JCPC), aff’g 57 OLR 46 (Ont CA).

79. Lin, supra note 77 at para 64.

80. Ibid at paras 65, 69.

81. Rémillard v Rémillard, 2015 MBCA 42.

82. Ibid at para 22. See also Samborski Garden Supplies Ltd v MacDonald (Rural Municipality), 2015 MBCA 53 at para 23 (“The standard to establish a miscarriage of justice is significant”).

83. The minimum statutory standards include that the arbitral tribunal must not exceed its jurisdiction (s 58(1)(c)); the parties must be given proper notice of the proceedings (s 58(1)(f)); the arbitrators must be free of justifiable doubts as to their independence or impartiality (s 58(1)(g)); each party must be given a reasonable opportunity to present its case and to answer the case presented against it (ss 21(b), 58(1)(h)); the award must not be the result of fraud or corruption by a member of the arbitral tribunal or be obtained by fraudulent behaviour by a party or its

representative in connection with the conduct of the arbitral proceeding (s 58(1)(ii)).

84. Arbitration Act, supra note 2, s 58(1).

85. Ibid, ss 17, 18.

86. Vavilov, supra note 9 at para 12.

87. Ibid at para 15.

88. Ibid at para 83.

89. Sattva, supra note 4 at para 78.

90. Domtar, supra note 35 at 10.

91. An example of a situation that might fall under s 59 (4)(b) is if a limited partner and the general partner submitted to arbitration a question between them; in that case, a decision on a question of law by the tribunal could have an impact on the economic or legal interests of all other limited partners.

92. Vavilov, supra note 9 at para 69.

“Contemplation In A Chaotic World” by Sue Daniel, Oil on Canvas, 48'' x 60''

Visit the website: suedaniel.com

ЖЖЖ

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

“Jimmy Who?” by Kathy Traeger, acrylic on canvas, 48'' x 36'', 2024

ARTIFICIAL IDIOCY*

By Spencer Keene

Pat Bateman never expected to work in an office. For most of his life, he’d been repulsed by the idea of frittering time away on tasks that were meaningless to him. But here he was, 32 years old, holding down a mid-level corporate job in the suburbs, completely bored and profoundly passionless. It wasn’t as if he’d woken up one day and all his ambitions had suddenly vanished. It was more of a gradual slide into indifference, the crushing weight of financial responsibility and social expectations smothering whatever vestiges of his dreams still survived.

It was another dull Monday morning, and as usual Pat was starting his week by staring vacantly at the two swivel monitors that jutted out at him from the panelled wall of his cubicle. Slumped in his decaying office chair, he picked tiny chips of paint off the pencil he twirled in his fingers, the yellow flakes falling like confetti and adhering to his navy-blue polo shirt. His mind was aimless as he reflected on the disappointing uneventfulness of the weekend. The modicum of enthusiasm he needed to get started on his work was nowhere to be found.

“Patty boy. How was the weekend?” asked a short, thick-set man who stood with his stubby arm draped casually over the side of Pat’s cubicle wall.

“Hey, Allan. It was quiet. Caught up on chores around the house. How was yours?” This had become Pat’s canned response to the inevitable Monday morning peppering of questions about his weekend. If you defined “chores” broadly, it wasn’t necessarily untrue.

“Ah, you know. Same old boring crap. Took the kids to the beach, which was a nightmare. Tried to watch the game Sunday, but seems it’s damn near impossible to find a moment to myself these days,” said Allan.

Pat nodded sympathetically, sighed, and swivelled towards his desk. “Well, I should get back to it,” he said, poking his head towards the spreadsheet on his screen and rolling his eyes in faux exasperation.

“Duty calls, eh? You’re truly a model employee, Patty boy,” said Allan, giving Pat a sly wink. “By the way, I look forward to reading that memo. I

* This story won second place in the 2024 Advocate Short Fiction Competition.

gotta say, I’m glad Diane dropped that onto your desk instead of mine. I’d rather watch my kid’s ballet recital than write one of those things,” Allan said as he lumbered away.

An icy wave of anxiety rippled down Pat’s spine. Late the previous week, during one of his afternoon stupors, Diane, the office supervisor, had marched up to his desk with a roguish grin on her face. Pat knew that expression and the misfortune that it foretold.

“Hi Pat, how are things?” she asked. Staring up at her with glazed eyes, Pat cleared his throat and stuttered, “Ahem, things are good. You know, just—” Diane cut him off mid-sentence, “Pat, I have an important task for you. I need you to draft a memorandum for the board giving them a rundown of the new operations project. Think you can handle that?” A rhetorical question, obviously.

“Uh, I appreciate the vote of confidence, Diane. And I’d love nothing more than to help with this but I—” Diane butted in again, “Thanks Pat, I knew I could count on you. If you could send a draft over to me by Monday afternoon, that’d be great,” she said, still grinning.

As she glided away from his cubicle, the panic set in. Pat knew next to nothing about the operations project. Earlier in the week, he’d sat through a presentation by the operations manager, during which he’d blurted out some garbage about efficiencies to impress everyone and prove he was paying close attention. He suspected that ill-advised comment was why Diane had singled him out for this task.

Diane’s little chat with him took place on Thursday afternoon. Now, here he was on Monday morning, with a fully fleshed-out memo due in mere hours, having given no thought to the project whatsoever. Pat’s utter indifference threatened to overwhelm the sliver of motivation he had to prepare the memo on time. What if he simply didn’t do it? Would that really be grounds to fire him? He was tempted by the proposition, but he had a better idea.

A couple weeks prior, Pat had received an email from the top brass at his company introducing a new piece of software the firm was rolling out across all its divisions. Called Blurble, it harnessed the latest developments in generative AI to produce coherent scripts using prompts fed to it by a human. Upper management had suggested the tool could be used to spur ideas and help with drafting basic documents.

But their enthusiasm was tempered by a disclaimer: “under NO CIRCUMSTANCES should an employee rely on Blurble to produce a final copy of any document.” (The disclaimer stuck in Pat’s mind, since upper management was generally quite reserved in their correspondence. The liberal use of all

caps suggested this was to be taken very seriously.) It was no secret that generative AI tools had a tendency to hallucinate—that is, make things up. The last thing the company needed was a lawsuit that could be traced back to an employee who failed to double-check an AI-generated document. A more conscientious worker would have heeded this clear warning from upper management. Pat was not such a worker. He found himself in a serious time crunch and, almost without hesitation, he decided that the best path forward was to go rogue.

Snapping out of his reverie, Pat turned back to his monitors and navigated to his company’s shared drive. He found the Burble application and opened it in a new window. It was a simple interface: one text field for prompt wording, one for input and one for output. There was also a cryptic series of alphanumeric values above the text fields. Pat took one look at them and decided to ignore them. These were the tool’s settings, he guessed. How important could they be?

Clicking into the prompt field, his cursor blinked at him as his mind grasped for the right words. He typed a few clipped sentences, instructing Burble to use lots of corporate jargon and to write with confidence. As he polished off the prompt wording and clicked into the input field, he chuckled mildly to himself as he considered the absurdity of the situation. We humans are truly pathetic. “Can’t be bothered to use your brain or think creatively? Here, use this inanimate machine—it’ll do everything for you!”

The prompt Pat came up with was simple. He told Burble to draft a memorandum, from the perspective of a mid-level employee to the board of the company, about an operations project. He fed it some basic information about the project and described the deliverables that had already been agreed upon. Leaning forward with his elbows on his desk and his hands clasped under this chin, he read over the finished prompt. Good enough

He ran the tool and watched as words spilled into the output field. He glanced at the time: 2:24 p.m. Why does Diane always dump this nonsense on me? Because I made some stupid, ill-informed comment at a meeting? This is my punishment for trying to impress my boss, I suppose. As Pat’s anger and frustration were peaking, the stream of words filling the output field came to an abrupt stop.

He stared at the finished product: perfect formatting; concise headings, even an elegant signature block. Skimming briefly over the body of the memo, he picked out a few nice, jargony terms: key performance indicators, synergy, core competencies, leverage. The tool had done exactly what he’d told it to do. What’s more, it had done it in a fraction of the time it would have taken Pat. As he sat with this realization, a cloud of depression settled over

him. If a machine is capable of this, it’s only a matter of time until I’m replaced by one. What then? Where do I go from here?

Pat dragged his cursor across the text, copied it and pasted it into a word processor. Without even a cursory double check, he clicked print. If this generative AI stuff was the future, there was no point in him putting in the extra effort to fine tune it. The clock was ticking for him in this job, and he resolved then and there to do only the bare minimum until his inevitable sacking. Pat recalled a buzzword that described this exact scenario: “quiet quitting”. Well, I suppose that makes me a quiet quitter

Pat stood and sulked over to the printer. He grabbed the single sheet sitting in the printing tray and sauntered back to his desk. Dropping himself into his chair, he picked a black ballpoint from the bouquet of writing utensils arranged in a mesh cup near his computer. Without a moment’s hesitation, he popped the cap off and signed his name in the signature block at the bottom of the memo. Exhaling deeply, the deed done, Pat felt himself slide even deeper into his funk. He allowed himself a minute of selfloathing before getting up from his chair and walking to Diane’s office.

The door to her office was wide open and, as Pat approached, he saw that she was on the phone, the receiver cradled between her ear and shoulder as she shuffled a stack of papers on her desk. “Tim, I don’t have time for this. We’re way behind schedule at this point, and I just need you to get it done,” Diane said into the receiver. Pat approached cautiously and, as Diane caught sight of him, she flashed her infamous grin and gestured for him to drop the memo into her inbox tray. Pat strode briskly through the doorway and placed the single sheet on top of the mountain of paperwork occupying the tray. Wanting to avoid a conversation with Diane, he spun around and stalked out of the office before she had a chance to wrap up her call.

Tuesday and Wednesday came and went. Since his subversive act of dilettantism, Pat had been even less motivated to do anything resembling work. It was as if he’d crossed a mental threshold, solidifying his freshly adopted view that he was simply a cog in a machine—a machine that was slowly devouring him and would eventually secrete him when he no longer served a purpose. This was his state of mind on Thursday morning, when Diane stopped by his cubicle unannounced.

“Morning, Pat. I’ve got some good news for you. I received a call yesterday from the chair of the board, and it sounds like the group was really taken by your memo. So taken, in fact, that they want you to elaborate on your ideas at the next board meeting. I’ve penciled you in for a half-hour

slot at tomorrow’s meeting. Sorry for the short notice but, judging from the details in your memo, it sounds like you’ve got your proposal pretty well thought out. Looking forward to it, slugger,” said Diane, wrapping up her comments with a cheeky wink before striding away. ***

Pat stood meekly at the head of the conference room table, his eyes sweeping across a roomful of important-looking executives. Each face was stony and cold. Beside him at the front of the room was a blank whiteboard, two thick, coloured pens sitting in the tray at its base.

“Why don’t you start with an introduction, son,” said the board chair, a grey-haired man with leathery skin and thick, horn-rimmed glasses. “Pat, is it? Pat…”

“It’s Bateman, not to be confused with the serial killer,” Pat croaked. His attempt to break the ice and lighten the mood was met by crickets. “You know, American Psycho? Bret Easton Ellis? Christian Bale?” Silence. Pat’s face reddened as he felt beads of sweat trickle down his back. He cleared his throat awkwardly and turned to face the whiteboard.

Pat felt the roomful of eyes on him. He breathed in deeply and exhaled slowly, steadying himself before reaching down to pick up the thick red marker. Pulling off the cap, he began to scribble on the whiteboard. The silence deadening the air in the room was broken only by the squeak of felt on plastic. When he was finished writing, Pat recapped the marker, placed it back in the tray and exited the room without saying a word.

The executives seated around the conference table were stunned by this seeming act of insubordination. Contributing to their perplexity was the cryptic message scrawled in red marker on the whiteboard at the front of the room.

“We are not our own masters.”

The Litigation Support Group

Business Valuations

• Matrimonial disputes

• Shareholder disputes

• Minority oppression actions

• Tax and estate planning

• Acquisitions and divestitures

Personal Injury Claims

• Income loss claims

• Wrongful death claims

Economic Loss Claims

• Breach of contract

• Loss of opportunity

Business Insurance Claims

• Business interruption

• Construction claims

Forensic Accounting

• Accounting investigations

• Fraud investigations

Left to Right: Kiu Ghanavizchian, Andrew Mackenzie, Gary Mynett, Vern Blair, Rob Mackay, Farida Sukhia

THE WINE COLUMN

By Michael Welsh, K.C.*

“The connoisseur does not drink wine but tastes of its secrets”

—Salvador Dalí

“Wine is the only art work you can drink”

—Luis Fernando Olaverri

CAVA

When most of us think of sparkling wine we think of Champagne (“drinking the stars”, as Dom Perignon is reputed to have said) or possibly Prosecco, the popularity of which has risen in recent years. But there is another heavy hitter in the sparkler world: Cava, the traditionally made bubbly from Spain.

So, with the introductory quotes from two famous Spaniards—a popular iconoclastic artist and a Pamplona wine icon and author—I invite you to raise a glass of Cava this summer. It is a refreshing and lively alternative to those two other sparkling wines, and in most cases available at a fraction of the price.

I also thought this an apropos time to discuss sparkling wines due to some recent Canadian research published in the Canadian Journal of Cardiology. It concludes that one of the top three ways to reduce risk of sudden heart attack is to drink sparkling wine (in moderation, of course!).1 So it is both good and good for you.

* Michael Welsh, K.C., carries on a litigation and ADR practice in the South Okanagan and is a bencher. He has been a BC VQA wine judge for more than 25 years. The views expressed here are his own and not those of the Law Society.

While Cava may be somewhat under the publicity radar when it comes to sparkling wines, it is a substantial part of Spanish wine exports, amounting to more than 215 million bottles per year.

But it is also a relatively recent addition to the Spanish wine lineup. The first recorded production was in 1872 when wine producers in the Catalan region near Barcelona started producing wines in the Champagne style, with secondary fermentation in the bottle. The first known to do so was Josep Raventós of Caves Codorníu winery, which continues Cava production to this day. This “traditional” style of sparkling wine production, following the French fashion, has two stages of fermentation. The first is to create a still wine, just as is done with regular table wines, but generally with a lower alcohol level. These “base” wines are blended and bottled and then subject to a second fermentation in the bottle under a cap seal. This further fermentation creates the buildup of carbon dioxide. The bottled wines are aged upside down in racks on their lees, with the bottles being turned (or riddled) periodically. Once aged, the bottles are opened and the yeast “plug” that has formed in the neck is disgorged and a bottle “top up” is done with a dosage of additional sweet wine or other liquid (liquid sugar, syrups, spirits) being added. Then the bottles are corked and ready to go.

This is different from Prosecco production, where the base wines are placed in a pressurized tank, to which sugar and yeast are added for the secondary fermentation, before filtering and bottling. This is generally called the Charmat method, after its inventor.

Cava is made in the traditional bottle-fermented way.

However, once the Spanish went into competition with Champagne, the French, in rigorous defence of their alcoholic cultural heritage, moved to prevent this upstart Spanish knock-off from gaining cache by cashing in on the name recognition of Champagne. Through a series of international treaties, trade agreements and intellectual property lawsuits from the late 1800s to the 1970s, the French successfully prevented producers from outside the Champagne region from using the name. The Spanish had to establish their own brand identity and, undeterred, turned a liability into an asset. “Digging” down (I know it’s a bad pun), they came up with the name “Cava”, referencing the wine caves where Cava is aged, establishing a Denominación de Origen (“D.O.”) for Cava in 1972.

Due to the phylloxera root louse plague that devastated vineyards in Penedès in the late 19th century (as it did in most of Europe), Spanish grape-growers in the area replanted with white grapes, particularly Macabeo, Xarel-lo and Parellada. This trio of varieties became the base for Cava production. With the establishment of their own D.O., Spanish winemak-

ers embraced the opportunity to highlight their unique terroir with these three indigenous grapes, and to distinguish their wines from Champagne, ultimately allowing Cava to develop its own reputation in the global wine market.

After the fall of the Franco regime in the late 1970s and Spain’s entry into the European Economic Community in 1986, Cava exports rocketed. However, the spoils of that booming export fell to the mega-producers. A 2016 report estimated that just three producers, Freixenet, Codorníu and García Carrión (Jaume Serra), accounted for ninety-five per cent of all D.O. Cava sales.

Now, with annual production exceeding 250 million bottles and export values surpassing €1.2 billion, Cava represents approximately eighteen per cent of Spain’s total wine exports by value. But while to provide the necessary inventory, Cava can now be legally produced in many regions of Spain, Cava’s centre of production remains in the Penedès region.

As Dylan said, the times they are a changing. For Cava, that change in recent times (as in many countries and with many types of wine) has been the growth in Penedès of smaller artisanal wineries launching Cava into a more premium market than that catered to by the huge producers mentioned earlier. These boutique producers are also planting in different areas of the Penedès region. Historically the large flat portions of the area have provided the grapes for the bulk of Cava. Now coastal and higher elevation sites are being planted. Another innovation has been those smaller wineries establishing a new wine category that emphasizes their Catalan wine identity; “D.O. Classic Penedès”. Unlike D.O. Cava, which can now be produced throughout Spain, Classic Penedès is restricted exclusively to Catalonia’s Penedès region, emphasizing local terroir. These sparkling wines feature the three native Catalan grapes, particularly Xarel-lo, which is believed to be the apex grape for Cava, although producers for Classic Penedès have more freedom to experiment with grape varieties than under Cava regulations. For instance, one of the wines reviewed below has an addition of Chardonnay.

Another significant trend in Penedès has been the widespread adoption of organic and biodynamic farming methods. According to a D.O. Cava report, in 2023 sales of organic Cava increased twenty-four per cent, and in 2025 it is expected the Penedès region will be the first wholly organic wine region in the world. We will have to check back in 2026 to see if that prediction comes true. The region’s dry climate and hot summers bode well to make it so.

I conclude with a wine industry summation of the position of Cava in the sparkling wine world:

In global wine markets, Cava occupies a strategic middle position between premium-priced Champagne and the more accessible Prosecco, offering consumers a compelling quality-to-price ratio that has fueled its international expansion. While Champagne maintains its luxury status …, and Prosecco dominates the entry-level segment …, Cava strategically occupies the [middle] range, offering traditional method sparkling wines at prices significantly below equivalent Champagne. This positioning has proven particularly successful in markets like the United Kingdom, Germany, and the United States, where value-conscious consumers appreciate Cava’s complexity without the premium price associated with Champagne. Industry data reveals that Cava exports have grown steadily at 5-7% annually over the past decade, even as the category faces intensifying competition from Prosecco, which saw explosive growth of over 20% in many markets during the same period.2

And now to some easily found Cava, from larger and smaller producers:

JAUME SERRA CASTELFINO BRUT N/V

D.O. CAVA GUARDA, SPAIN #551218 $15.99

Made from the traditional cuvée of Macabeo, Xarel-lo and Parellada and semi-dry, this Cava is straw yellow in colour, and has a nose of candied lemon peel and white peach, with some white blossom notes. The mediumweight palate shows lemon curd, honeydew melon, green apple and green pineapple with a good mineral backbone, and on its finish are almond and bread dough. Have it with some tapas such as tapenade, cured ham or hard cheeses, or maybe with some oysters or cracked crab, or a seafood paella or on its own as an apéritif.

Two of the reviewed Cava showing their intricate labels and muselets or wirehoods

VARIAS GENUI BRUT NATURE N/V

D.O. Cava Guarda, Spain #134687 $19.99

The present Cava Varias cellars were founded in 1918 in the town of Sant Sadurni d’Anoia in the Alt Penedès region, known as the birthplace of Cava D.O. At this winery, there are over 100 years of Cava production history. Again this Cava is made from the triumvirate of Macabeo, Xarel-lo and Parellada. The grapes are estate-grown and the style is very dry, with only 2 grams of residual sugar per litre. It scored 91 points on WinesScores. On the nose are vibrant lemon-lime, some toasted almond, melon and yeasty bread dough. The flavours are again of lemon-lime with tart green peach on a light lifted palate. The finish is very clean, soft and medium long. The winery suggests it as an apéritif or with sushi, seafood or charcuterie, but perhaps also consider (my suggestion) having it with some soft cheeses and serrano ham. In addition, I suggest grilled seafood (like prawns) or grilled white fish (or maybe an Atlantic lobster roll), or pork belly or Japanese katsu or other mild curries.

VILLA CONCHI BRUT SELECCIÓN N/V

D.O. Cava, Spain #192765 $20.99

This is a richer wine than the other two, possibly from the addition of Chardonnay to the familiar three-fold Spanish blend (Macabeo, Xarel-lo and Parellada). The higher concentration of Xarel-lo also adds spiciness. According to the winery, its range of grapes are grown and its wines produced in the best Spanish Cava-producing sub-region: Comtats de Barcelona. It claims this region produces better quality grapes at higher altitudes. With this wine, the yeasty nose has lemon rind, peach and white flowers and the full palate shows lemon, apple and more peach, with some quince. On the finish there is a bracing and refreshing minerality with persistent fine bubbles. The wine is vegan and is refreshing to sip on its own, or again pair with a cheese board or shellfish, cold smoked salmon or a grilled chicken dish. Or go vegan with a grilled asparagus and avocado salad with toasted almonds or pine nuts.

For those who prefer, or I trust just also like, their red table wines, I add some good Spanish versions.

DOMINIO DE TARES BALTOS MENCÍA 2020

D.O. Beirzo, Spain #926477 $32.99

Mencía is a lesser known and under-rated Spanish grape (also grown in Portugal and called Jaen). Reminiscent of Cabernet Franc, it generally has a full

red fruit profile, although the more recent style is fuller than it was historically. Bierzo on the Portuguese border in northern Spain is one of its main homes. This version is from 40-year-old bush vines, handpicked and fermented on native wild yeasts, then aged for six months in a mix of French and American oak, and a further year in the bottle, before release. According to the B.C. Liquor Distribution Branch, it is found exclusively in its stores. Medium-full-bodied, it has aromas of black plum, black cherry, blackberry, some red flowers and a bit of ash. There is a background of green tobacco and subtle spice that show on both the nose and palate. That full palate has good grip and some pronounced tannins that soften with its lifted, lingering finish. It drinks well now with its integrated tannins, but has aging capacity for at least another five years. At a huge 14.5 per cent alcohol, it is best served slightly chilled to freshen it (around 14°C). The winery suggests food pairings of hard cheeses, Spanish tapas, paella, pastas and red meats, all good suggestions. Again I might add a selection of cured meats and olives to the cheeses, and consider a roast duck or turkey.

PORTIA ROBLE 2023

D.O. Ribera del Duero, Spain #796003 $29.99

Not to be confused with Portia who, masquerading as a lawyer, famously speaks in The Merchant of Venice of the quality of mercy, Bodegas Portia is a winery in the heart of the Ribera del Duero region. This wine is vinted solely from Tempranillo, tank fermented and aged for at least three months in oak (hence, I presume, the addition of “Roble” to the label name). This is a lighter wine made for consumption in its youth. Maroon in colour, it has aromas of red fruit with vanilla and chocolate notes, spice and subtle oak on the nose, and bright cherry and cassis and red plum mixed with cocoa powder and more vanilla on the palate. The tannins are bright and it has good length, leaving notes of a cigar box. Again it is a huge 15 per cent alcohol, so chill it slightly this summer. Try it with a grilled steak (seasoned well with garlic and rosemary), lamb chops or shanks, or perhaps firm, oilier fish like grilled tuna. Fuller rice and pasta dishes (mushroom risotto or Pasta Bolognese) will also work well.

FAUSTINO ART COLLECTION RIOJA CRIANZA 2021

DO Rioja, Spain #213339 $23.00 (approx.)

There are three styles of Rioja wine, based primarily on how long they are aged before release. Crianza-style Rioja must be aged a minimum of two years, with at least one in oak and any remaining aging being in bottle. It is the entry level of Rioja, followed up the scale by Reserva (minimum three

years aging with at least one in oak) and Gran Reserva (minimum five years aging of which two must be in oak). This fine Crianza, with a label inspired by a 17th century painting by Rembrandt, and solely from tank-fermented Tempranillo, is a rich purple with a nose of bright berry fruit, black currant and brambleberry, with some ash notes and flint minerality. The palate shows more black berry fruit, dark plum and cherry, with lots of tea-like tannins leading to a long and rounded finish. Good food pairings are traditional Spanish tapas like grilled chorizo in wine sauce, or albondigas with a potato tortilla (omelet), or a meal of roasted leg of lamb or a barbequed brisket. It will also pair well with hard cheeses like an Iberico or Manchego with salted almonds. You can find it at Everything Wine, Jak’s and other private wine stores. You may even find some of the 2019 vintage around that I reviewed a couple of years back.

OLARRA CERRO ANON RIOJA CRIANZA 2021

D.O. C. Rioja, Spain #371325 $26.49

A blend of Tempranillo, Graciano and Mazurelo, this wine has full nose of dark fruit—black currant, blueberry, black cherry—along with fresh herbal notes. The flavours on its medium-weight palate are of the same dark fruit and tea-like tannins. Still young, it can easily be put down for four to five years. The same food recommendations apply as to the last wine, as does a pizza loaded with sausage and roasted vegetables, or a pork tenderloin or lamb shanks. It can be found at private stores such as Angry Otter.

ENDNOTES

1. Online: <www.wine-searcher.com/m/2025/05/ drinking-wine-really-is-good-for-you>.

2. Online: <www.grapecollective.com/articles/bubbling -tensions-the-cultural-politics-behind-spains-cava-

industry?_bhlid=ea1165cea3b3ed6fcb9012d 7de0919db1e8809a3>.

Visit the website: artworksbc.com

“Life Journey – Humbled By Love” by Sue Daniel, Oil on Canvas, 48'' x 36''

NEWS FROM BC LAW INSTITUTE

By Megan Vis-Dunbar*

How can legislation enable respectful relationships between co-existing legal orders and support legally plural frameworks grounded in cooperation? This is the question underpinning much of the work of BCLI’s Reconciling Crown Legal Frameworks (“RCLF”) program. The RCLF program aims to support the implementation of the Declaration on the Rights of Indigenous Peoples Act (“Declaration Act”) in British Columbia through research, education and the development of recommendations for legislative reform.

British Columbia’s Action Plan for the implementation of the Declaration Act is informed by legal pluralism in relation to a diversity of legal orders. Legal pluralism as between different systems of laws is a familiar concept within Canada’s legal system, as explored in BCLI’s series of legal pluralism primers, which we released in 2023 and 2024. Building a framework for legal pluralism as between distinct legal orders, grounded in their own principles and values, calls on us to take the models of legal pluralism we are familiar with and grow them. It requires creative thinking about roles that law and legislation play in society.

Traditionally, legislation in the Crown system is one tool for providing some clarity and predictability in the law. At BCLI, we are exploring opportunities for legislation to continue to serve these valuable roles and further develop to support dynamic and interactive relationships between legal orders.

Two projects BCLI is undertaking in this vein are the Escheat Act Modernization project and the Indigenous-Led Conflict Resolution study paper.

Escheat

Act Modernization Project

One of the core aspects of the Escheat Act Modernization project is identifying opportunities for legislation pertaining to lapses in property owner-

*Megan Vis-Dunbar is a staff lawyer at the British Columba Law Institute (“BCLI”).

ship to align with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). The Escheat Act deals with the management of land and personal property when there is a lapse in personal ownership interests. Together with the common law, it upholds Crown jurisdiction over property. The current framework is built on the premise that when a personal ownership interest in land ends, the interest that remains is that of underlying Crown title.

BCLI is working with an external committee of subject matter experts to explore ways of reframing this area of law from a perspective that would account for the inherent title and jurisdictional rights of First Nations whose traditionally owned or occupied lands may be the subject of an escheat.

Indigenous-Led Conflict Resolution Study Paper

This study paper aims to help inform Crown legal systems in adapting to First Nations’ approaches to conflict resolution. First Nations have the right to maintain and strengthen their own legal orders. This includes the right to determine the manner in which their laws are applied to resolve conflicts. However, when Crown legal systems fail to respect and acknowledge the legitimacy of these processes within First Nations’ legal orders, it can lead to confusion across jurisdictions and increase the risk of Crown legal systems being applied in a manner that undermines First Nations’ processes.

This paper explores some interactions between Crown and First Nations’ legal systems that have resulted in friction. It further analyzes legal pluralism frameworks that enable co-existing approaches to conflict resolution across distinct legal orders.

What We Are Learning

There is no set formula for how to build frameworks supporting legal pluralism. Reform of Crown laws to enable legal pluralism with Indigenous legal orders is likely to be an iterative process of law reform and system adaptation. In identifying a starting point within such a process, it can be helpful to look for places where small shifts within Crown systems can create space for growth and open opportunities for First Nations to take up jurisdiction in accordance with their priorities. We are learning to adjust our thinking from viewing legislation merely as a tool for providing order and clarity through rules to it also being a tool for enabling relationships across distinct legal orders.

Looking Forward

BCLI’s approach involves some projects with specific goals of supporting

alignment of laws with UNDRIP as in the examples highlighted above. In addition, it involves exploring opportunities across all of our projects to consider UNDRIP and Indigenous perspectives on law reform. In some situations, that involves consideration of how specific legislative reforms might function within a legally plural context. It can involve analyzing where legislation could better enable Canadian laws to operate in cooperation with Indigenous laws. As we continue exploring innovative ways to improve how Crown laws operate within a legally plural society, we hope others will join

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

“Old Pal” by Jane Bronsch, acrylic on canvas, 48'' x 36'', 2023

NEWS FROM CLEBC SOCIETY

By Adam Simpkins*

WHAT’S NEW FROM CLEBC: 2025 PUBLICATION UPDATES AND A CONTINUING COMMITMENT TO TRUTH AND RECONCILIATION

CLEBC’s mission to support legal professionals in British Columbia includes regularly updating its legal resources and providing educational tools that respond to the evolving practice of law. As part of this ongoing work, we are pleased to share three major updates to our publications library, as well as highlight an ongoing initiative in support of Truth and Reconciliation.

Civil Appeal Handbook: 2025 Update

Your comprehensive companion to appellate practice in British Columbia For litigators and support staff navigating appeals in British Columbia, the Civil Appeal Handbook offers a complete roadmap to the appellate process. The 2025 edition includes more than 100 new cases and features a foreword by the Honourable Leonard Marchand, Chief Justice of the B.C. Court of Appeal. New commentary covers anonymization orders, questions of discretion and standards of review for second-level appeals, with practical direction on whether leave to appeal is required.

This resource is especially valuable for practitioners needing quick access to legislation, case law and academic commentary when planning appeal strategies or advising clients on complex procedural issues.

British Columbia Strata Property Practice Manual: 2025 Update

Supporting clarity and confidence in strata law

practice

Strata law in British Columbia continues to shift in response to legislative changes, court decisions and administrative trends. The Strata Property Practice Manual provides in-depth guidance on governance, operation and

* Adam Simpkins is the marketing manager at the Continuing Legal Education Society of British Columbia (“CLEBC”).

dispute resolution for strata corporations. The 2025 update reflects major legislative amendments to depreciation report requirements, as well as new Civil Resolution Tribunal (“CRT”) decisions, expanded CRT jurisdiction and significant court rulings related to human rights, solicitor-client privilege and representative claims under the Real Estate Development Marketing Act

Lawyers advising strata owners, councils, developers or tenants will find practical support in navigating both the letter of the law and the realities of practice.

Estate Disputes in British Columbia: A Litigator’s Guide— 2025 Update

Practical tools for estate litigation practitioners

Whether you are handling wills variation claims, fiduciary disputes or inter vivos transfers, Estate Disputes in British Columbia offers procedural guidance, litigation strategy tips and relevant case law. The 2025 update includes new content on spousal status declarations, costs in committeeship applications and the impact of Indigenous law on estate valuation.

Designed to help practitioners choose the best resolution method, manage evidentiary issues and prepare for court, this guide remains a trusted resource for estate litigators across the province.

All updated titles are available in print or through online subscription. For more details, visit <www.cle.bc.ca/publications>.

Spotlight: CLEBC’s TRC27 Blog

An ongoing conversation on Truth and Reconciliation

Since 2018, CLEBC has hosted the TRC27 Blog—a digital space dedicated to answering the Truth and Reconciliation Commission of Canada’s Call to Action #27, which urges legal professionals to engage in cultural competency training.

Written by CLEBC legal editor Joy Tataryn, the blog highlights Indigenous voices and provides resources for understanding Indigenous law, the legacy of residential schools and approaches to decolonization. Whether you are seeking reflections from the legal community or practical tools to deepen your understanding, the TRC27 Blog is a growing archive of learning and reflection for the B.C. bar.

Access the blog at <www.cle.bc.ca/trcblog>. ЖЖЖ

NEWS FROM VANCOUVER BAR ASSOCIATION

By Heather E. Doi*

MENTORSHIP AND THE PETER S. HYNDMAN AWARD

It has been the case for several years that many of the most engaged and active members of the Vancouver Bar Association (“VBA”) are junior lawyers in their early years of practice. In years gone by this may have had something to do with the fact that the youngest arms were most well-suited to the bun-throwing tradition at the VBA’s annual general meeting (“AGM”). While it is unclear how the bun throwing fostered civility and collegiality in the profession, more recently, the VBA has promoted these core principles and objectives by leaning on another great(er) tradition of our profession: mentorship.

Of course, it is not at all the case that the only beneficiaries of mentorship are junior lawyers. Anyone who has been mentored in this profession will wonder where they would have been without it. The work of a great mentor requires time, patience and care. It is often carried out quietly and without notice. And yet it is essential to our profession. Unlike the bun-toss, we hope it will never go out of style.

This is in part why, each year, the VBA takes great pride in celebrating outstanding mentors by awarding the Peter S. Hyndman Mentorship Award (“Hyndman Award”), to a lawyer who is recognised as an outstanding mentor. The award was created by Maureen Fauman, the late Paul Fraser, Q.C., Wally Oppal, K.C. and Judge Thomas S. Woods (retired), to honour the memory and contributions of Peter Hyndman.

At the VBA’s AGM in 2010, Judge Woods explained the genesis of the award as follows:

Peter was unstintingly, unreservedly generous with his wisdom, his time and his knowledge. … It seemed to us that others like Peter—the unsung heroes of the legal profession—could and should be recognized for the

* Heather Doi is the past president of the Vancouver Bar Association.

contributions and sacrifices they make in order to shape the growth, intellectual development and integrity of those they bring along.1

As Judge Woods explained, Peter was known for his exemplary commitment to mentorship, through which he passed on not only his legal skills and knowledge, but also his ethical insights, good judgment, idealism and commitment to decorum and civility. These are the qualities that we look for and recognize in the Hyndman Award honourees. Past recipients of the Hyndman Award have included, among many others, William S. Berardino, K.C., Jan Lindsay, K.C., Richard C. Peck, K.C., Leonard T. Doust, K.C., and Gaynor Yeung, K.C.

On November 26, 2024, at a gathering of about 400 members of the Vancouver legal community, Edward G. Wong accepted the 2024 Hyndman Award. Edward is a sole practitioner who shows a remarkable dedication to mentoring other lawyers at all stages of practice. He dedicates significant time to mentoring other sole practitioners who may otherwise be without mentorship and to racialized lawyers navigating systemic challenges in the practice of law. His nominators spoke of his unwavering generosity, and the compassionate and consistent support that he shows his mentees. Edward demonstrates all of the qualities that the Hyndman Award is meant to embody. He is a truly deserving recipient.

When Edward accepted the Hyndman Award, he highlighted his personal journey in the profession and the importance of mentorship to this profession. A significant extract from his acceptance speech can be found below:

The Importance of Mentorship

Mentorship is more than a professional responsibility; it’s a personal calling. It’s the recognition that the wisdom we acquire is not solely for our own benefit but a torch to pass forward. The very essence of mentorship lies in its ripple effect—one act of guidance has the power to shape countless lives and careers.

In the legal profession, mentorship carries a unique significance. As young lawyers step into this demanding and often daunting world, they are met with challenges that go beyond understanding the law. Young lawyers often face a crucible of self-doubt, steep learning curves, and a constant balancing act between personal and professional demands. It’s our role as mentors to not only guide them through the intricacies of the law but also to remind them that they belong, that they are capable, and that they have a voice that matters. It’s about believing in their capacity to achieve, sometimes even before they believe in themselves.

My Journey as a Mentor

When I reflect on the privilege of mentorship, I think of the moments that have been most fulfilling to me. It’s seeing young lawyers move from

uncertainty to assurance—seeing them argue with conviction, lead with clarity, and find their voice with newfound confidence—there is nothing more rewarding. It’s witnessing someone transition from secondguessing every decision to becoming a leader their peers look up to. And it’s the quiet conversations—the ones where doubts and fears are laid bare, and I can remind them that every great lawyer once stood in their shoes.

Mentorship is not just about the advice we give; it’s about the relationships we build. For me, it’s about being present, listening deeply, and creating a space where others feel seen and supported. It’s about recognizing that each mentee’s journey is unique and meeting them where they are. Many young lawyers I have worked with have faced moments of disillusionment—questioning their abilities, doubting their career choices, or struggling to balance the demands of practising law with their personal lives.

It’s not always easy to tell someone struggling that they will come out stronger on the other side, but it’s crucial. For me, those are the moments that mentorship matters the most: when you can help someone rediscover their purpose and reclaim their confidence. It’s about offering support in times of uncertainty and celebrating milestones, big and small, along the way.

My hope is that I have, in some small way, helped my mentees see their potential, overcome obstacles, commit to ethical practice, and find success on their path.

For me, the greatest satisfaction comes from knowing that mentorship is a partnership—a two-way street. As much as I have guided young lawyers, they have taught me in return. They have reminded me of the passion and curiosity that drew me to law, challenged me with fresh perspectives, and inspired me with their resilience. They have taught me to never underestimate the courage it takes to start at the beginning, and they have reaffirmed my belief in the boundless potential of those who are willing to grow. The challenges faced by those I have mentored, and the victories they have achieved, have continually renewed my own sense of purpose and commitment to practising law. ***

My Gratitude and Commitment

Of course, none of this happens in isolation. Mentorship thrives within a culture that values and prioritizes it. I want to thank the Vancouver Bar Association once again, not just for recognizing me but for elevating the importance of mentorship within our profession. By shining a light on mentorship with this award and the Inns of Court program, you send a message that mentorship is not a luxury—it’s a necessity. It’s an investment not only in individuals but in the long-term health of our profession. In honoring mentorship, you encourage others to step into this role and embrace the opportunity to shape the next generation of lawyers.

To the young lawyers I have had the privilege of mentoring, thank you for trusting me with your hopes, your fears, and your aspirations. You are the reason mentorship is so rewarding, and you inspire me to continue this work with passion and purpose.

I dedicate this award to my wife Jana, and The ACE Team, our three children—Andrew, Catherine, and Elizabeth. I thank each of them for their unwavering support in all that I do and their patience as I take “one more phone call” before I leave my office.

As I close, I want to share a reminder for all of us here tonight: mentorship does not require grand gestures. It begins with a simple willingness to invest in another person’s potential. Each of us has the power to be a mentor in our own way—by offering a word of encouragement, a listening ear, or the wisdom of our experiences.

To all of us in this room tonight: let this moment remind us that our work is about people, relationships, and the legacies we leave behind. No one succeeds alone. As we celebrate mentorship, let us commit to fostering it—not just as individuals but as a collective effort.

Thank you again for this tremendous honor and for allowing me to share my thoughts on something so close to my heart. I am profoundly grateful.

Nominations for the 2025 recipient of the Hyndman Award will open in late summer this year. If you know an outstanding mentor, please consider nominating them for this prestigious honour. Please continue to check the VBA’s website (<www.vancouverbar.ca>) for more information regarding the Hyndman Award, including nomination requirements.

ENDNOTE

1.The Honourable Thomas S Woods, “The Peter Hyndman Mentorship Award” (2011) 69 Advocate 233.

A VIEW FROM THE CENTRE

By Joe McArthur, K.C., FCIArb, CArb*

VANIAC NAMES NEW SECRETARY GENERAL

The Vancouver International Arbitration Centre (“VanIAC”) is pleased to welcome Mr. Romeo A. Rojas, FCIArb, as VanIAC’s new Secretary General. With an impressive career spanning diplomacy, law and arbitration, Romeo brings a wealth of experience to VanIAC.

Romeo holds a bachelor of arts (hons.) degree from the University of Alberta, a juris doctor degree from the University of British Columbia and a master of laws degree from the University of Calgary. Romeo began his career in the Canadian Foreign Service as a trade commissioner, with postings in Dubai and Abu Dhabi, before focusing on international investment law at Global Affairs Canada’s Trade Law Bureau.

In private practice in Calgary, Romeo focused on energy and construction arbitration. He has represented companies and states in domestic, international and investor-state arbitrations and has served as arbitrator in domestic and international arbitrations. In addition to his work as arbitrator and counsel, Romeo was a member of Alberta’s Land and Property Rights Tribunal and has taught commercial arbitration law and international trade law at the University of Calgary.

We look forward to his vision and leadership as we continue to grow and strengthen our role as a trusted and efficient Canadian arbitral institution.

For further information, or to discuss how VanIAC can support your dispute resolution needs, please do not hesitate to contact Romeo at 604-6850553 or r.rojas@vaniac.org.

* Joe McArthur, K.C., is a partner at Blakes, and is the chair of the board of VanIAC.

NAME

Frank Borowicz, K.C.

Joseph Boskovich

Hon. Mary Ellen Boyd

Barb Cornish

Paul D. Godin

Jeffrey A. Hand

Janice F. Hansen

Bryce Jeffery

Rose Keith, K.C.

William E. Knutson

Dean P. J. Lawton, K.C.

Richard Lindsay, K.C.

John Logan

Elizabeth Lyall, K.C.

Simon Margolis, K.C.

Vincent R. K. Orchard, K.C.

Carol Roberts

Alan Schapiro

Kerry Short

Scott Snider

Mark L. Tweedy

James D. Vilvang, K.C.

Gaynor Yeung

PHONE

(604) 351-7755

(604) 669-5500

(604) 639-3172

(604) 639-3174

(778) 587-4499

(604) 449-3830

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CALENDAR

LAPBC NOTES

By Marv Stern*

COACHING: A PATH TO PROFESSIONAL FULFILLMENT

After 40-plus years as a criminal lawyer, I have started a second career as a lawyer coach. I have had the privilege of working with many lawyers who, at one point, felt stuck in their careers. The legal profession, while rewarding, can often leave practitioners feeling disillusioned or disconnected from the very work they once loved. It is easy to lose sight of one’s purpose when the challenges of the profession begin to overshadow the excitement of making a meaningful impact. This is where coaching comes in—an essential tool for rediscovering your career’s direction and purpose and reigniting that passion you once had.

Who Could Benefit from Coaching?

Coaching is not only just for those who are struggling; it is for anyone seeking to elevate their practice and find greater satisfaction. Here is a closer look at who might benefit:

1.Lawyers Feeling Stuck in a Rut:

Many lawyers experience periods when they feel they are treading water, neither growing nor moving forward. It is not uncommon to hear from clients who describe themselves as “going through the motions”. This feeling can arise even for lawyers who once excelled in their field and used to find great joy at work, but for a variety of reasons no longer share that passion.

2.Lawyers Whose Firm Dynamics Are Hindering Progress: Sometimes, a lawyer might be performing at a grade B level, despite having been a grade A performer in the past. This can

* Marv Stern is a lawyer coach with the Lawyers Assistance Program of British Columbia (“LAPBC”).

occur for various reasons, such as a misalignment between the lawyer’s values and the firm’s culture. If you are finding it difficult to succeed or feel that your work environment is holding you back, coaching can help you work through these barriers. It may help you see where the misalignment lies and how you can either adjust your perspective or take action to find a better fit.

3.Lawyers Feeling Unfulfilled by Their Work:

You have completed the task, but your dominant feeling is relief— not satisfaction. This is a common emotion for lawyers who have lost the sense of fulfillment they once found in their work. If you find yourself looking for “more” from your career, coaching can help you reconnect with your passions and identify new challenges that align with your deeper values and interests.

4.Lawyers Facing Self-Doubt and Lack of Direction:

Imposter syndrome, crises of confidence and uncertainty about your career path can be overwhelming. These feelings can prevent you from reaching your full potential, both as a lawyer and as an individual. Coaching offers the support and encouragement you need to regain confidence and develop a clear direction for your career.

5.The Struggles of Personal Challenges:

Personal issues—whether it is family issues, relationship issues or mental health challenges—can bleed into your professional life, making it harder to focus, perform and thrive. Having a coach who is an ally, offering a sounding board and emotional support, can make a world of difference. A coach will help you create structures to manage these challenges, hold you accountable, and provide a much-needed space to process your feelings.

6.Feeling Alone in Your Professional Journey:

For solo practitioners, the lack of a support system or mentorship can be isolating. The absence of regular feedback or guidance from peers or senior colleagues can leave you feeling unsupported. Coaching can help fill this void by providing mentorship and offering a reliable source of advice and strategy. Having someone to talk to about your career and personal challenges can be incredibly reassuring.

What Can a Coach Provide?

As a lawyer coach, my role is to be both an ally and a sounding board. I provide a safe, non-judgmental space for you to explore your thoughts, frustrations and aspirations. Here is what coaching can offer:

• Sounding Board: We often need someone off whom to bounce ideas, someone who understands the unique pressures of the legal profession. A coach offers that space.

• Support (Ally): In moments of self-doubt or frustration, having an ally can make all the difference. A coach is there to support you, provide reassurance and challenge you when needed.

• Direction: Sometimes, we feel lost or unsure of the next step. I help lawyers develop a clear vision for their career, set goals and work through obstacles that prevent progress.

• Accountability: It is easy to procrastinate when we do not have someone holding us accountable. Coaching provides a structure to stay on track with both personal and professional goals.

• Challenge: The best coaches know when to challenge their clients. If you are feeling complacent or stagnant, I will help push you outside your comfort zone to ensure that you keep growing.

• Ideas, Strategy and Framework: Coaching is not just about talking—it is about action. I offer concrete strategies and frameworks that can help you find clarity, make decisions and create actionable plans to move forward.

Recapturing Your Joy

In the hustle and bustle of the legal world, it is easy to lose sight of what truly brings us joy. Through coaching, I help clients reconnect with the passion they once felt for their work and life. We explore what brings you joy, set up structures that promote self-care, and ensure accountability to create lasting change.

Coaching is a resource offered by LAPBC as part of our commitment to well-being and to working with the whole person. The lawyer counsellors at LAPBC can connect you to me as part of an overall counselling program.

LAPBC 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 604-685-2171, toll-free at 1-888-685-2171 or via the LAP website: <www.lapbc.com>.

Our seasoned international & domestic arbitrators adhere to a fair process and deliver impartial, balanced and timely awards.

resolve@vaniac.org | vaniac.org | 604-684-2821

ЖЖЖ

ANNOUNCING THE 2025 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 5, 2025. 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 a local restaurant and possible publication in the Advocate

Winning entries will be selected by, at the latest, February 13, 2026. 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 Heidi Wudrick*

BUILDING CONFIDENCE AND BELONGING WITH THE IDEA LEADERS PREORIENTATION PROGRAM

When Peter A. Allard School of Law alum and UBC Student Ombudsperson Shirley Nakata started law school at UBC in 1985, there was a notable lack of diversity in Canadian law schools, law firms and the courts. Since then, many Canadian law schools have made progress in increasing diversity, but a sense of community and belonging cannot be taken for granted.

Today, Nakata is on the advisory committee of the Allard School of Law’s IDEA Leaders Pre-Orientation Program. Launched in the summer of 2024, the program brings together incoming first-year students from persistently, historically and systemically marginalized groups and allies, with the aim of supporting students and building connections from day one.

Before launching the program, Kaila Mikkelsen, Allard Law’s Assistant Dean, Students, often met with law students who felt isolated and questioned whether they belonged in law school or the legal profession.

“My main goal in developing the program was to enhance a sense of belonging among students from populations that we know have struggled to feel like they belong in law school,” says Mikkelsen. “We wanted IDEA Leaders students to know they belong and to ensure they feel welcomed, supported and ready for their first year.”

While similar pre-orientation programs had previously been held at several U.S. law schools, the IDEA Leaders Pre-Orientation Program was the first of its kind in Canada. In the program’s first year, 22 students came together over three days at the end of August.

“I would have loved an opportunity to join a small community of firstyear students with whom I could walk the journey of the law school without

* Heidi Wudrick is the communications manager at the Peter A. Allard School of Law.

having to explain or justify what it felt like to be a racialized, immigrant woman in a predominantly white student population,” says Nakata, adding that when she was a law student, it was not easy to find the confidence to talk about these experiences.

Nakata says she jumped at the chance to join the program’s advisory board: “It’s critical for students to have the opportunity to share stories and hear from others who have navigated similar challenges.”

You Don’t Know What You Don’t Know

First-year law student Adhithya Krishnan was among the first cohort of students who applied to the program. “It was quite daunting to come to law school all the way from Ontario since there are so many preconceived notions about the field online,” says Krishnan. “I was very nervous.”

One of the themes of the program was you don’t know what you don’t know—and it’s okay to ask.

“You’re entering a new environment where there’s significant information asymmetry as to how law school operates and what your expectations are,” adds Krishnan, which makes hearing from students who had already navigated the same terrain all the more valuable.

Through workshops and panels with first-generation lawyers and students who have been in similar positions, Krishnan says the program addressed his fears and provided a soft landing “compared to the larger orientation, where you can feel a bit lost and your specific concerns are unaddressed.”

“They walked us through the exact intricacies of law school—what to expect and how to best prepare ourselves,” Krishnan adds.

Gurman Dhaliwal, a second-year law student at Allard and last year’s student coordinator for the program, says many students he spoke with signed up to the IDEA Leaders Pre-Orientation Program largely for the opportunity to ask questions in a judgment-free environment.

“Law school is great, but there are a lot of rumours about what you need to do to succeed,” says Dhaliwal. “The most important outcome of the program was providing that reassurance that we all know we belong here and that we have the same potential to achieve as anyone else.”

Building Confidence and a Sense of Belonging

Over the course of the weekend, students came together for panels and workshops with professors, upper-year students and practising lawyers. One of the most popular panels featured representatives from equitydeserving affinity associations, such as the Aboriginal Lawyers Forum and the Canadian Association of Black Lawyers.

“Students really appreciated getting to speak with lawyers who look like them,” says Dhaliwal. “During that panel, the students all got on their

phones to join these groups,” adding that it was “amazing to see” students making these connections so early on.

Allard Law alum and Ph.D. student Maira Hassan, a speaker on the Diversity at Allard Law panel, says her goal was to convince students of their own power, the importance of diversity and the value that their unique perspectives bring to law school and to society as a whole.

“The topic of race or diversity is often taboo, particularly at law schools,” notes Hassan, which she says makes the IDEA Leaders Program a critical part of ensuring students who face systemic barriers have a real and equal chance for success.

Ongoing Structured Support

Providing a warm introduction to law school and building community were key goals of the program, says Mio Tomisawa, Senior Manager of Equity, Diversity and Inclusion Office at Allard Law. But setting students up for future success was just as important. “Our goal was for the program to translate to competencies, confidence and all the skills necessary for students to have success beyond law school and to become leaders in whatever they choose to do,” she says.

Once the school year began, IDEA Leaders students were offered workshops and events to help them navigate their first year, with a focus on academic and career planning, as well as informal events aimed at strengthening connections between students.

“The best part about this program is having a community of amazing peers and mentors who have been consistently supportive and invested in each other’s growth,” says IDEA Leaders student Ariel Moon. “This program gives you both the tools and the community to turn to when challenges arise.”

Moon says the program has helped shape how she approaches law school, giving her the motivation to stay “collaborative and engaged” throughout the school year.

With participants now wrapping up their first year, Dhaliwal says he believes the program has made a noticeable difference, giving participants the confidence to take on leadership roles at the law school without hesitation. That was a stark contrast to his own first-year experience. “I think a lot of first-year law students felt really lost,” he adds. “We just walked straight in on the first day of orientation without having these important conversations.”

Alumni supporters like Nakata have likewise found the experience fulfilling. “It’s so rewarding to work with and for the next generation of law students who have the potential to change the world for the better,” says Nakata. “I would encourage any alumni to get involved with this program

and other opportunities to volunteer with Allard to get inspired, share your knowledge and connections, and take part in the continuing evolution of the legal education system and profession.”

How Allard Law Alumni Can Get Involved

Building on last year’s success, this second year of the IDEA Leaders PreOrientation Program takes place at Allard Hall from Friday, August 22 to Sunday, August 24, 2025.

Alumni support is critical to the IDEA Leaders program. Allard Law alumni are invited to get involved as speakers and through informal men-

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Visit the website: kurbatoffgallery.com

“The Boat Chandlers House” oil on canvas, 36'' x 48''

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UVIC LAW FACULTY NEWS

By David Murphy*

2025 UPPER YEAR MOOTS

Annually, UVic Law students participate in moot competitions that sharpen their advocacy and legal reasoning skills in a competitive atmosphere. In 2025, UVic teams participated in ten moot competitions, showcasing their talent in legal research, oral presentations and critical analysis on both national and international stages. Below, we showcase these experiences from the perspective of coaches and students.

Kudos to all participants, and a big thank you to the coaches and sponsors who make these events possible!

ISAAC MOOT 2025 January 30 – February 1, 2025 Toronto, Ontario

Coaches:

Stuart Rush and Rebekah Smith

UVic Team:

Appellant Team: Katie Delay and Chantal Bacchus

Respondent Team:

Lindsay Veenstra and Lucy Rohatynchuk

This moot focuses on racial profiling analysis in criminal law. The UVic teams for the Isaac Moot worked through R. v. Ali, a Saskatchewan Court of Appeal decision, developing doctrinal arguments and applying critical race theory. The team practised their oral submissions with volunteer judges, including professors and a Supreme Court of British Columbia judge. The appellant team finished seventh out of 26 teams, with Lindsay Veenstra and Chantal Bacchus nominated for the Spirit of the Moot Award.

* David Murphy is the new communications officer at UVic Law.

BC LAW SCHOOLS COMPETITIVE MOOT 2025

Victoria, B.C.

Coaches:

Sean Finn, JA Pankiw-Petty and Jarrett Plonka

UVic Team:

Taylor Workman, Luke Noftle, Paul Fader and Daniel Ta

February 8, 2025

Supported by the Continuing Legal Education Society of British Columbia and DLA Piper

The focus of this moot was landlord remedies in commercial lease agreements. The UVic team competed against UBC and TRU, placing second overall, with Paul Fader winning Best Oralist in Division 3. The competition enhanced their legal skills and emphasized the importance of teamwork and resilience. “The moot greatly enhanced our legal skills, including factum writing and advocacy, but more importantly, it strengthened our ability to support one another while mastering factum writing under time constraints and refining our submissions,” said the team. In Unison? – Ed.

MACINTYRE CUP MOOT

Winnipeg, Manitoba

Coaches:

Roberto Alberto and Schuyler Roy

UVic Team:

February 14, 2025

Sophie Fergus, Kieran Crosby, Elaine Goussiatiner and Isabelle McIntyre

Supported by the Trial Lawyers Association of BC

The MacIntyre Moot focuses on trial advocacy in a criminal prosecution. First and second place teams go to Ottawa to compete in the Sopinka Cup. While the UVic team did not qualify for the Sopinka Cup this year, their dedication and skill were described as “remarkable”. They invested countless hours in preparation, research and practice, working through various challenges while implementing feedback from local lawyers and judges, according to coach Roberto Alberto. “Their commitment to advocacy and professionalism was inspiring. The university’s support was instrumental in their development, and the team looks forward to future competitions.”

BENNETT JONES JESSUP CANADIAN ROUNDS

Ottawa, Ontario

Coaches:

Nat Carnegie and Chelsea Flintoff

UVic Team:

February 20–22, 2025

Brent Fisher, Caitlin Kleaman, Salena Thomas and Emma Camicioli

The Canadian rounds serve as the national qualifying stage for the international Jessup moot court competition. The UVic team competed against 16 teams, improving with each round by fielding challenging questions from experienced judges. The problem was “The Case Concerning the Naegea Sea” and featured guest judge and UVic Professor Asad Kiyani. “We delved into the issues to a depth that we would not have if these were mere topics for one class in an international law course. The experience will stay with us for the rest of our studies and after we leave school,” the team reported.

WILSON MOOT

Toronto, Ontario

Coaches:

Alandra Harlingten and Kaitlyn Chewka

UVic Team:

February 21–22, 2025

Lauren Praill, Elizabeth Collins, Natalie Vandenberg and Rachel Bishop

The Wilson Moot focuses on exploring issues concerning women and minorities. The team said attending the British Columbia Court of Appeal and having a panel of three justices sit for them was the highlight of their trip. The Wilson Moot taught them the value of intrepidness in litigation and gave them the courage to advance arguments that cultivate growth in the law. “We are immensely grateful to our coaches Alandra and Kaitlyn. Their diligence, selflessness and commitment to enhancing the legal field will continue to serve as inspiration for all of us as we enter our legal careers,” said the team in a report. “The Wilson Moot has undoubtedly been a highlight in all our law school experiences.”

BOWMAN NATIONAL TAX MOOT

2024-2025

February 28 – March 1, 2025

Toronto, Ontario

Coaches:

Geoff Loomer, Michael Taylor

UVic Team:

Appellants:

Gray Stanyer and Sam McDonald

Respondent Team:

Jenissa Sunderji and Nicola Bodnarchuk

UVic Law returned to the Bowman National Tax Moot, where students argued an appeal of the Federal Court of Appeal decision in Glencore Canada Corp. v. The King, involving the tax character of “break fees” paid following a failed corporate merger. “After working hard on their written factums (and bearing penalties based on some rather stern interpretations

of the rules), the team travelled to Toronto to face cold temperatures and insightful questions from panels made up of tax lawyers, Tax Court justices, and Federal Court of Appeal justices,” said coach Geoffrey Loomer.

GALE CUP

Toronto, Ontario

UVic Coaches:

February 28 and March 1, 2025

Shelby Liesch, Krista Johnson and Rob Deane from Borden Ladner Gervais LLP

UVic Team:

Vanessa Trif and Robert Hebert, Katrina Darychuk and Ryan Balachandran

Supported by Borden Ladner Gervais

The Gale Cup moot focuses on appellate competition in criminal law. Mooters were asked to appeal from R. v. Bykovets , a recent decision of the Supreme Court of Canada. Justices Frances Knickle (Newfoundland and Labrador Court of Appeal) and Kelly Slate (OCJ) commended the team of Trif and Hebert for possessing a true advocate’s voice and a strong conviction in their case. Justices Amy Ohler (Ontario Superior Court of Justice), Lois Hoegg (Newfoundland and Labrador Court of Appeal) and Louis Strezos (Ontario Court of Justice) lauded the team of Darychuk and Balachandran for their poise, responsiveness to questions and command of the technical matter of internet protocol addresses in a criminal search and seizure context.

KAWASKIMHON NATIONAL ABORIGINAL MOOT

Thunder Bay, Ontario

Coaches:

Leah Mack, Laura Mars and Chelsea Cameron

UVic Team:

March 7 and 8, 2025

Summer Tyance and Michael Davidson, Ciarra Roy and Lindsay LeBlanc

This moot reinforced the students’ passion for working with both common Law and Indigenous law. The theme was negotiation of Indigenous legal frameworks and position papers. The students demonstrated high levels of critical thinking and incorporated their experiential knowledge into their legal research and analysis. Chelsea Cameron joined the team in Thunder Bay, assisting the students in integrating Indigenous legal frameworks into their negotiations. The moot began with a sacred fire and water ceremony and ended with co-drafting a comprehensive agreement-in-principle. The closing banquet featured networking opportunities and a lecture from legal scholar Aimée Craft.

CANADIAN CLIENT CONSULTATION COMPETITION

Ottawa, Ontario

Coaches:

Nicholas Picard and Sheila Simpson

UVic Team:

March 15–16, 2025

Jocelyn Toledo and Patsy Ginou. Rebecca Gasparac and Caterina Fusco

Supported by YLaw

This competition simulates a law office consultation. Gasparac and Fusco showcased remarkable poise and confidence in their advocacy, compelling their judge to cut short their time—a testament to their effectiveness and control. Toledo and Ginou’s teamwork was praised by the judges for their client questioning and precise, skillful presentation of the law. They advanced to the semifinals. While in Ottawa, a few students toured the Supreme Court of Canada and House of Commons, and were fortunate to meet MP Jagmeet Singh.

WILLEM C. VIS INTERNATIONAL COMMERCIAL

ARBITRATION MOOT

Vienna, Austria

Coach: Andrew Newcombe

UVic Team:

Aivery Mckinley and Aleksandra Partyka

Supported by Blakes LLP

April 11–17, 2025

International commercial arbitration was the focus of the prestigious Vis Moot in Vienna. Competing in this moot was the “most rewarding experience in law school,” says McKinley and Partyka. Over four rounds, they alternated between representing the claimant and respondent, honing their advocacy skills through thoughtful feedback from lawyers and law students worldwide. “The experience offered not only a deep dive into international arbitration but also the opportunity to learn from diverse perspectives and approaches to oral advocacy. It was a challenging and enriching journey— one we will carry with us well beyond law school.”

TRU LAW FACULTY NEWS

By Ryan Gauthier*

NEW FACULTY MEMBER JOINING TRU LAW

TRU Law is pleased to welcome Jack Nelson, who will be joining the faculty as an assistant professor on July 1, 2025. Jack received his juris doctor degree from the University of Melbourne in 2014 and is admitted to practise law in Victoria, Australia and Hong Kong.

From 2015 to 2018, Jack worked as an associate with the international technology team at King & Wood Mallesons LLP in Hong Kong, before moving to the firm’s Singapore office in 2019. After migrating to Canada, he completed his master of laws degree in air and space law at McGill University in 2023, receiving both the Nicholas Mateesco Matte Prize in International Space Law and the Jose Bogolasky Memorial Prize in International Air Law.

Jack’s research examines issues arising at the intersection of law, science and technology, with a particular focus on space law. Jack is currently completing his doctor of civil law degree at McGill, for which he holds a Canada Graduate Scholarship from the Social Sciences and Humanities Research Council. In addition, Jack is an Associate Academic Fellow at the National University of Singapore and an elected member of the International Institute of Space Law. Jack’s work has been cited in publications from NASA, the United States Institute of Peace, and the European Parliament, and in amicus curiae submissions before the United States Supreme Court.

TRU LAW MOOT SEASON COMPLETED

In the 2024–25 academic year, TRU Law had 39 different students compete on ten moot teams across Canada and the United States. With the National Sports Law Negotiation Moot finished in October 2024, February and March 2025 saw the other nine teams compete.

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

At the Wilson Moot, TRU Law received the Top Factum prize for the second year in a row. The team members were John Hawthorne, Lucas O’Fee, Saijal Patel, Adam Richert and Christopher Weibe. At the Immigration, Refugee and Citizenship Moot, TRU Law received the second overall written factum prize. This year’s team was made up of Lauren Da Silva, Mackenzie Do, Allan Hsu, Celina Lin and Sepideh Sadeghi.

The National Family Law Negotiation Competition team of Evelyn Izsak and Isabella Balducci took third place in the team category for the competition, and Evelyn was ranked as the sixth overall negotiator in the competition. Meanwhile, TRU Law made it to the semifinals of the Hockey Arbitration Competition of Canada. This year’s team was Charlotte Hutchinson and Cassidy Bell.

TRU Law also participated in the Davies Corporate/Securities Moot, Jessup Moot, Kawaskimhon Moot, MacIntyre Moot and BC Law Schools Moot. In 2024–25, as noted above, TRU Law had a total of 39 different students compete on ten teams, coached by 26 coaches based in Abbotsford, Calgary, Hamilton, Kamloops, Sechelt, Vancouver and Victoria.

We thank these coaches for their work. Without them, the moot program would not be the success it is. We would like to thank Danielle Ching McNamee and Catharine Bisbicis (BC Law Schools); Chelsea Hunter, James Reid and Joe Ensom (Davies); Michael Geib, Tiana Reid and Dylan Taylor (Hockey Arbitration); David Kapp and Keving Spykerman (Immigration); Alex Devitt and Natasha Little (Jessup); Chrystie Stewart and Murray Sholty (Kawaskimhon); Amanda Winters and Sara Hillard (National Family Law Negotiation); Karen Perry and Imogen Jenkins (National Sports Law Negotiation); Kelly Melnyk, Iain Currie and Lana Walker (MacIntrye); Sergio Ortega, Brodie Noga, Jayne Mayfield, Karin Kotliarsky and Simone Penny (Wilson).

We would also like to thank our generous sponsors. The travelling moot teams received support from TRU’s Dr. Sherman Jen Innovation Competition Prize and the TRU Students’ Union. The Davies Corporate/Securities Moot team was supported by Poulus Ensom Smith LLP in Vancouver. The Jessup Moot team was supported by Gillespie and Company LLP in Kamloops. Finally, the BC Law Schools Moot was supported by Rush Ihas Hardwick LLP in Kelowna.

TRU LAW HOSTS FIRST ANNUAL FAMILY LAW CONFERENCE

On March 6, 2025, TRU Law held its First Annual Family Law Conference. The conference featured 15 speakers across four panels. The speakers included judges as well as members of the legal profession. We are thankful to the speakers for their time and expertise, and look forward to next year’s edition of the conference.

THE ATTORNEY GENERAL’S PAGE

By the Honourable Niki Sharma, K.C.*

USING SERVICE DESIGN TO IMPROVE ACCESS TO JUSTICE

Access to justice starts with the ways people experience the system. To improve that experience, we need to ask whether people can understand their choices, take action and get the help they need to resolve their legal problems. This is especially important during moments of stress, conflict or major life change, when the justice system can feel particularly complex or difficult to navigate.

At the Ministry of Attorney General, we are working to build a justice system that works for people. We are doing this by using a human-centred approach that helps us see services through the eyes of the people who use them. By grounding our work in real experiences, we can make the justice system easier to access. One of the best ways to evaluate and improve services is through a collection of practices and processes called service design.

Service design involves asking questions, listening carefully and testing ideas before making changes. It helps ensure that what we provide is responsive to people’s needs. That often includes research with users, mapping how services are experienced and prototyping solutions before they are rolled out.

A recent example is our work to improve the usability of the Provincial Court Family Rules forms. These are the forms people are required to complete when navigating family law issues, such as parenting arrangements, guardianship or applying for a protection order. Paperwork is often the first interaction people have with the justice system, especially when they do not have legal representation. When you recognize that a form might be the gateway to our system, it becomes easy to see why it is so important

*The Honourable Niki Sharma, K.C., is British Columbia’s Attorney General.

that these processes and touchpoints must be as clear and barrier-free as possible.

To better understand where people were running into challenges, a team of policy experts and service designers from the Ministry of Attorney General conducted surveys and in-person workshops. They heard from members of the public, as well as from court staff, family justice counsellors, legal advocates, lawyers and judges. We were grateful for their insights, which helped identify what was getting in the way and where improvements were most needed.

Using what they learned, the team began redesigning the forms with a focus on plain language, clearer instructions and more intuitive layouts. Features like sidebars with definitions and tips, progress indicators and clearer section headings were added to help people move through the forms with more confidence.

They then assessed these prototypes with people. The results were encouraging, especially from self-represented litigants. The redesigned forms were easier for people to understand and complete. They also made it easier for front-line staff to review submissions and identify any missing information, and for judges to quickly navigate to the information they require to help inform their decisions.

This project is just one example of how service design can help us improve access to justice—by investigating the way people were using forms and the challenges they faced, and by building on insights from the people who support them every day. These actions of listening and exploring, combined with service design-based techniques, provide the basis to transform tools like forms into the most user-friendly, accessible tools we can provide to the public.

We know that people often interact with the justice system during some of the most difficult moments in their lives. When that happens, even small barriers can add stress and make it harder to move forward. This work is not about a single form or a one-time fix. It reflects a broader shift in how we approach justice services, with the lived experiences of the people we serve at the centre. That is what service design helps us do. And it is one way we are delivering on our commitment to build a system that truly works for everyone in British Columbia.

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

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“Nootka Island III” by Sandra Garris, Acrylic on Canvas, 40'' x 30'', 2025

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

NOS DISPARUS

By R.C. Tino Bella

David Martin

David Martin was born on July 25, 1950 and grew up in the James Bay Area of Victoria with two siblings. From a young boy, he was athletic and charming, and he played drums in his school and rock bands. Sports and music were integral to his life as a young man, and he carried both of these passions into his professional life. He was one of a group of several senior counsel and judges who regularly played tennis for many years. He knew that music could improve your mood and instilled a love of music in his children Karen, Drew and Reid and his grandchildren Zachary, Sofia and Sebastian.

In 1971, David moved to Vancouver to attend UBC law school, graduating in 1974. A longtime member of the Arbutus Club, he loved being with his family and friends, and raised three children with his lovely wife, Lexie.

A distinguished career followed his move to Vancouver, with most of his 49 years as a partner specializing in litigation for the firms of Douglas, Symes, & Brissenden and then Miller Thomson, where he practised for over 25 years and often won the best dressed award at the annual holiday party for his swagger and tailored suits. David had a real passion for cars. He coveted, acquired and nurtured a bright red Saab turbo convertible to replace his dark cherry Cadillac.

Whistler was a special place where David enjoyed skiing, tennis, golf and cycling. Annual favorite destinations were Naramata and Palm Springs. He looked forward to attending the US Open Tennis Championships and had gone for many years.

I first met David when I joined Miller Thomson in 2006 sometime after relocating from London, U.K. My office was next to his at 840 Howe Street.

David was a self-made man, and he did not mince words when it came to giving his opinion. He was a brilliant orator and mentor. Those few lawyers he chose to befriend (of whom I was one) were both made integral to both his professional life, and enfolded into his personal life with his family and friends. There was no degree of separation for David. If he chose you to mentor, he mentored you in life and in work. I consider myself extraordinarily lucky to have had the benefit of his time.

For much of his career, David focused on administrative law relating to self-governing professional bodies. He provided legal counsel to the College of Physicians and Surgeons, the College of Veterinarians of BC and the Emergency Medical Assistants Licensing Board. He advised self-governing professional bodies on their governing statutes and was regularly called on to make revisions to the bodies’ statutes, regulations and bylaws. He also acted for professional associations in disciplinary action taken against members and as independent counsel to disciplinary tribunals. His work meant a great deal to witnesses who testified in these disciplinary tribunals, and his ability to garner trust and provide guidance on sensitive issues was one particular aspect of his work that he very much enjoyed.

He also acted for Research in Motion (BlackBerry) for many years and became what has now become known as a trusted advisor. His time with BlackBerry was invigorating for him. He managed several lawyers across Canada during an interesting time for the tech industry. His junior lawyer, Karima Bawa, ultimately left to go in-house for BlackBerry and the two enjoyed a long professional and impactful relationship. He was often on a plane and enjoyed a very rigorous, yet rewarding and challenging practice.

In 2022, David was recognized and honoured by his peers and clients for his expertise in administrative and public law. A highlight of his career was successfully arguing a case before the Supreme Court of Canada. Former Chief Justice Chris Hinkson told me a story about David’s experience at the highest court in Canada. Justice Howie Hamilton once told him that lawyers never win or lose cases. Clients do. Lawyers simply receive gold or silver medals for their performances. Chief Justice Hinkson once shared that sentiment with David and they would from time to time, in submissions, refer to their respective silver medal performances. The Supreme Court of Canada case to which I refer was indeed one of David’s gold medal performances and, according to Chief Justice Hinkson, one of his silver medal performances.

David Martin also served on the executive committee of Miller Thomson for several years. This was during a pivotal time of growth for the firm and his charisma and candor helped to navigate management towards a prag-

matism that he exemplified. He later provided counsel to the many junior Miller Thomson lawyers he worked with and mentored. “Marshall the evidence” and “put your personality into the law” were only some of his key messages.

In more recent years, he injured his back and skied and played tennis less as a result. He was blessed to find companions that were able to be active with him on walks and trips to Whistler. He worked hard to ensure the safety of the public, often times sacrificing time with his growing family. He sought to maintain a balance between his professional life and his family life in his more senior years where he attended Sofia and Sebastian’s soccer and baseball games and then it was off to Dairy Queen for some ice cream. They adored him and loved him. He is dearly missed by all of us.

Full memorial services were held at the Arbutus Club, which were widely attended.

Sarah D. Hansen with contributions from Reid and Drew Martin and former Chief Justice Christopher E. Hinkson

David Huberman passed away on August 24, 2024 in Vancouver, with his beloved wife, Rowena, and family by his side.

David was born in Calgary in 1934 to immigrant Polish Jewish parents of modest means, and for several years was raised in living quarters above the little grocery store they owned and operated. He bathed in a tin tub, regularly saw frost on the home’s inside walls in winter and walked to and from school in snowdrifts. But he and his younger brother were loved. And they were raised in the midst of a close extended family of many uncles, aunts and cousins.

David ignored career testing that determined he was destined for chartered accountancy, and instead tried his hand at law. He was top three in his class during each year at law school, foreshadowing good things to come.

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David Huberman

He received a scholarship to Harvard Law and an LL.M. there in 1960 followed by articling in Vancouver with Nathan Nemetz, Q.C. (later Chief Justice of British Columbia) and Jack Austin, K.C. While articling, Dean George Curtis at UBC Law asked David to fill in for a professor who had fallen ill. That led to a full-time teaching position and the beginning of what he thought would be a long working life in academia.

In 1965, he returned to Harvard to begin working on a doctorate, but his intended supervisor was suddenly whisked away to a presidential post in Washington, D.C. So instead of studying at Harvard, David ended up teaching there before resuming work at UBC Law a year later. He loved teaching, and took great pride in his students, many of whom went on to become fine lawyers making great contributions to the practice of law. He also wrote several seminal company law texts.

In 1972, Morley Koffman, a partner at Freeman and Company, asked David about “coming downtown” to try his hand at practice. He agreed, loved it, and flourished and grew over the years just as the firm did until it closed shop in 1993. He excelled in negotiations, and his work took him all over the world on all kinds of large and interesting deals. He could have been a walking, living billboard to show how corporate commercial law can, despite what some might think, actually be exciting.

Respected by his peers for his drafting skills, it came as a surprise to learn from notes David made for an unpublished memoir that he needed to take remedial English as an undergrad at U of T. (The things you learn going through your father’s papers.) He excelled at drafting, working with words precisely, clearly and with grace, like a traditional Japanese carpenter who cuts, joins and shapes wood to create things of usefulness and beauty. He really was that good.

He so enjoyed working with colleagues, mentoring younger lawyers and serving clients, many of whom became lifelong friends. Former colleagues and students speak of his intellect, integrity, listening skills, sage counsel, generosity and caring. He was kind, gentle and present.

He tried retiring from law, twice, but it kept drawing him back in. For several years, he worked as vice president of a new film company, taking it from concept to a publicly traded company now known as Lionsgate Films. He later returned to work for a former client, a large international mining company that kept him very busy, and spent his last few years in law working as in-house counsel in a private equity firm. He worked diligently in the background, taking care of business (literally and figuratively) so that others could shine.

Although not particularly religious, he was a proud Jew and passionate about the success of the Temple Sholom synagogue in Vancouver, serving

as president for two terms. He and a small group of volunteers worked tirelessly to establish the companion program at the Louis Brier Home and Hospital which became a precedent for similar programs at Jewish and non-Jewish care homes across Canada. He served on several other community boards, and it is remarkable that even now, people still speak about how much they learned from him as a fellow board member and the impact he had. He gave and conveyed a lot.

He hated sports, was thrilled when his golf clubs were stolen and was a terrible tennis player. But he enjoyed American football on TV and loved his family and friends, travel with Rowena, his garden, his pipes and special blend of tobacco, Coca Cola, a corned beef sandwich on rye with a pickle, his collection of hats, a classical music concert, a Broadway show, a good Jewish comedian, a black and white movie, a clever crossword, playing piano and a good book. He hated intolerance and injustice, always taking the side of the underdog. He began writing his memoirs, but the dementia that had by then started to silently creep in made the task increasingly challenging and, as time progressed, just not possible.

David was a loving partner to Rowena, his wife and best friend of 67 years, whom he met on a blind date at Stanley Park’s Theatre Under the Stars one summer evening in 1954. Their union led to three sons and eventually their partners and three adored and adoring grandchildren.

We are still saddened by his passing, but remain grateful for his nearly 90 years here, his contributions to the law, his full life well lived, his love and his kindnesses to so many.

Jeff Huberman

John Brian Jackson, K.C.

It is difficult to capture the spirit and vitality of someone as unique as Brian Jackson in words.

For those familiar with Brian, or “B.J.” to his friends, you know that would mean using words like intelligent, vibrant, unfailingly honest, witty, musical, athletic and family minded. Having some of his closest friends share their stories helps paint a picture of his life.

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Brian passed away August 30, 2024 after a short and valiant struggle with pancreatic cancer. Brian was a barrister’s barrister and one of the great criminal lawyers in our profession.

Brian was born on April 19, 1946, deep in the Kootenays in the mighty town of Trail, something he was very proud of. He was one of four children born to Mary and John Jackson, who both emigrated to the Kootenay region of British Columbia from northern England after the First World War. They settled in Trail, once described as the Chernobyl of North America by Lonely Planet because of its huge lead-zinc smelter, something that amused B.J greatly, both because it was both a little bit true and he loved Trail so much. Brian spent a couple of summers working at the smelter. His job was to be lifted down on a rope into a giant vat to clean it by spraying sulphuric acid through a firehose to remove mineral deposits on its surfaces. After work he would soak his arms in water with baking soda to neutralize the acid. As he said, in his way, “it paid well”.

One of the great stories Brian loved to tell was about his visit to his father’s home village of Lowca in 1975. His grandfather Bill Jackson was a coal miner who was a notorious attendee of the local pub the Ship’s Inn, who had died in the early 1940s. Brian went into the Ship’s Inn and asked the barkeeper, “Does anyone here remember Bill Jackson?” The bartender, not missing a beat, nodded to the corner and said, “That’s his stool right over there”. Family was always important to Brian and he was close to his parents and sisters Marion, Elsie and Kathleen.

By all accounts Brian had a wonderful childhood. He was an athlete and loved sports from early on. He did very well academically and was also the President of his high school in Grade 12. Baseball and hockey were a big deal in Trail and he played both. He fancied himself quite the goalkeeper as a youngster, even though he could barely skate, telling his close friend and first law partner Dennis Murray, K.C., that he could have been great, but unfortunately, he was assigned to a very poor team. As a result, Brian said he was very lucky not to have got rubber poisoning because of all the pucks shot at the net. No one is sure when or why Brian retired from hockey but another of his close friends, Del Sokol, suspects that it had something to do with his opponents learning how to take a slap shot and the lack of face masks. Brian said that the deciding factor in his retirement occurred when the team captain took a vote after the second period to play the third period without a goalie in order to have a sixth skater. The team voted unanimously in favour of the motion.

But, as the saying goes, one door closes and another opens. According to Del and his family, Brian became a very good ping pong player. He could

beat most people playing left handed (he was right-handed), including his children, to their great annoyance. He was not bad at tennis either. He once had a bet that he could beat a friend at tennis after three weeks training (not Del Sokol), when he had never played tennis and his friend played regularly. He won.

His favourite, though, was baseball. He was a skilled shortstop who loved the game. His son Matthew recalls his dad talking about his excitement listening to the World Series on the radio and then watching on television in the 1950s. He was an avid Blue Jays fan from the beginning to the end, and he loved to travel with his son and his friends from the Sun Tower law offices to watch games in Seattle and the occasional “Nooner” at the Nat.

After Grade 13 in Trail, Brian moved to the big city of Vancouver to pursue a commerce degree at UBC in 1965. At law school, starting in 1968, his love of music came to light, and it was there he met his good friends John Conroy, K.C., Dennis Murray and Henry Brown. Singing and playing music was a common interest with Conroy and Dennis, leading to regular gettogethers at Brian’s off-campus lodgings where he would play piano with gusto. Conroy says Brian had covered the ceilings on his rooms with egg cartons to dampen the noise and improve the acoustics! This musical association continued throughout their long friendship.

Brian’s time at law school went well. The prodigious work ethic he displayed in his trial preparation and law practice was present during his days at law school as well. He poured drinks at Cecil Green Park on Friday night social sessions, and worked at Exhibition Park, part of the team laying the first artificial turf at Empire Stadium. He worked nighttime security for Pinkerton, but, never one to like to do nothing, he would call Dennis Murray at all hours of the night to complain about how bored he was. On some of his off nights Brian would “work” at playing poker instead.

Brian’s formative years in law were in the 1970s, before the Charter and long before Stinchcombe. His son Matthew found a box in the attic full of his old calendars from those early years, showing sometimes five or more trials per day. He asked how this was possible. To his amazement Brian remembered most of the cases, over 40 years later. Back then, he answered, you would show up in court, the Crown would hand you a piece of paper or nothing at all as disclosure, and you cross-examined the witness police officer, and it came down to reasonable doubt. Those “golden age” times were his favourite period, and they formed him as a lawyer for the decades to come.

A central feature of Brian’s law career was the Sun Tower law office that he managed for over 30 years. He and Henry Brown practised there the

entire time, with Deborah Atkins and Connie Hill as their paralegals. I practised there with Brian starting in the late 1980s for over 20 years. Others came and went, including several articling students and contributors to this article. It was a welcoming environment, with a lot of charm, but most of all it was a great place to be because everyone who worked there really liked one another, and Brian was a major part of that.

Brian always stood out from others. Ritchie Clark, K.C., with whom he acted in the Bengert trial in the early 1980s, which featured as its main villain “Fats” Robertson, recalls him as a presence in the courtroom, resplendent in his John Lennon glasses, filling the room with his personality and attracting everyone’s focus and attention. In another trial, Ritchie recalls Brian said in his final submissions, “If this witness were Pinocchio his nose would punch a hole in the North Shore mountains!” That was definitely one of Brian’s many fortes: he could enthrall all those around him.

Brian was entertaining in so many ways, not the least of which was while he was in court. On one “Bring your Child to Court” day, Brian was summing up to a jury—as always, with no script and only a few handwritten notes. After Brian worked his magic, a young man was heard to comment to his father, the Crown prosecutor on the case, “Dad, I didn’t want it to end!” Just like a great book or movie.

Brian was a rock and roll man to his core. He loved to play piano, play guitar and sing. His musically talented sister Elsie helped teach him piano, and Brian learned guitar all on his own, due to his love of the Beatles and all music back then. One summer during university days he drove from Trail to Vancouver and back to get the latest Beatles album, a ten-hour drive through Washington at the time, only to have it melted in the trunk when he got home. Another time he bought a Beatles album, he said he listened to it something like ten times the first day with his friends in Trail, trying and ultimately succeeding in figuring out the chords.

Brian loved life and he lived it large. You knew that because when you were with him, the charisma, wit and joy he projected became infectious and you loved life as well. His house was always a great place to be. Brian and Penny had an open house policy. They hosted many friends, and friends of their children Matthew, Maggie and Sarah over the years. A night for the kids visiting the Jackson household meant watching movies, possibly the Three Stooges and Looney Tunes cartoons, or playing board games, or playing in the forest behind the house. Kids who visited had so much fun.

Tony Serka, K.C., whose family spent many long weekends and vacations with the Jackson family, says “When Brian packed for a trip, even a week-

end trip, he didn’t worry about how many pairs of socks to bring. He filled the car with the usual bikes, tennis rackets and balls, but then added a boom box (when that was a thing), dozens of CDs, a stack of board games, two different cribbage boards and at least four newspapers, Every contingency for fun was anticipated and prepared for.” What Tony did not mention was the guitar piled on top of it all, which Brian would often wear as part of his outfit, and play regularly.

Brian was also an exceptional gleaner of music and movie trivia. In the late 1970s, Brian, Tony Serka and Henry Brown became the “Earls of Esoterica” and entered the CBC television’s “Trivia Show”. For two consecutive years they were the B.C. champions on the Red Robinson-hosted television show and came third nationally. Subsequently in 1984, they invented and published the music trivia board game called “Billboard” presents “Top 40 Trivia” by the Earls of Esoterica. In 1985 the magazine Games selected it for its Games 100 list: the top games of 1985.

Brian’s natural ability as an orator showed itself early in his undergraduate life. During his commerce studies at UBC he won the public speaking award. This talent continued in his legal career: his ability to simply but eloquently convey an idea or argument was legendary in the profession. No droning on for Brian … short, incisive and to the point. This trait also made him a formidable cross-examiner, a skill remarked about by many of his peers, and to the consternation of many of his opponents. Many confident witnesses, sure of their evidence in chief were reduced in cross examination to a humble admission that perhaps, after all, they were no longer quite so confident in what they had been so certain of only moments before.

Brian’s sense of humour and joie de vivre were unsurpassed. On one occasion, a potential client came to him begging for Brian to represent him at his upcoming extortion trial. Brian told him the retainer he required. The client was without sufficient funds and pleaded for Brian to represent him anyway. Brian repeated the amount of the retainer he needed. This called for desperate measures and the client claimed: “Brian, do you know how I found you? Today I woke up and I prayed. I prayed to God to send me a lawyer. Then I opened up the Yellow Pages and I found your name, Brian Jackson! You see? You are an answer to prayer!” Once again, Brian repeated the amount of the retainer he needed. The client left vowing to return with the necessary funds. At this point, Brian turned to his articling student (the editor of this magazine) and said: “God is now referring clients to me. Pretty good referral source, hey!?”

Above all, Brian was a family man. His proudest role was as a husband, father and later grandfather. He adored his wife Penny Green, whom he

met when he and Dennis Murray began their small practice in Gastown. They had rented space from John Rowan and Jack Cram. Jack had begun his “Unreported Decisions” project and Penny was in charge of the project as a paralegal under Jack’s lead, and the rest is history as she was without doubt the love of his life. His children were central to his happiness. He was so proud of his sons David and Matthew, and his daughters Maggie and Sarah, the latter of whom left the Jackson family far too soon. As busy as he was, he never allowed his very successful practice to take precedence over his time and his fun with his family. He was always there as a safety net for his kids, always respectful of them as individuals and always loving them unconditionally.

Brian’s annual Christmas parties were legendary. The warm Jackson house would be decorated, top to bottom, with Christmas decorations and memorabilia. Santa mugs decked out the tops of shelves, mounted jigsaw puzzles of every imaginable version of Santa’s visage adorned the walls, and the top of Brian’s beloved piano was festooned with dozens of small Christmas figurines. My personal favourite was the Three Stooges, all wearing Santa hats. Given its place of honour, I think it is likely it was Brian’s favourite as well. But most impressive of all was the inevitable result of Brian’s annual trek to the Christmas tree lot. Nothing would do but the biggest tree on the lot, even if installing it in the living room resulted in a significant portion of its tip being bent over into the room. By the way, the ceiling in the Jackson living room was at least 14 feet high! It was a glorious sight, all draped in tinsel. Many of the city’s finest lawyers, his childhood friends, their spouses and, later on, his children and their friends, would find themselves gathering in the living room around Brian’s piano, singing every imaginable Christmas carol for hours on end, accompanied by other musicians such as Brian’s nephew Scott Armstrong on guitar and John Conroy on conga drums. Brian was no “tickler of the ivories” (although he was an accomplished player), he was more of a honky-tonker, pounding out the chords and phrases of the Christmas carols, and then the “oldies” once Brian’s Christmas repertoire was exhausted, his distinctive voice growling out the lyrics. The next day his voice would be shot and his fingers raw. Christmas 2024 was a hard time for many who loved the yearly tradition so much. It was just not the same without the piano man or his booming voice. Lastly, it must be said that Brian’s courage in the face of pain and realization of his own mortality was both inspiring and heartbreaking. From diagnosis to passing was only two months. Just a few weeks before he passed, Brian attended my swearing in as a judicial justice of the Provincial Court and I know the toll this took on him. I was truly honoured by his presence.

Dennis Murray recalls sitting on Brian’s patio around the same time singing some of the oldies a capella. Brian laughed his head off and ridiculed him for his lack of knowledge about movies, stoic in the face of obvious pain and making fun of his own mortality. He spent most of his remaining time seeing friends and family and doing what he loved: listening to music, watching the Blue Jays, movies and comedy with his family, and spending time in the garden. He was getting every last bit out of the time he had left.

Brian Jackson had an indomitable spirit and has left a huge and inspiring footprint on all who had the good fortune to cross his path or to love him for the amazing man he was.

So, it seems we all miss him.

Douglas Jevning, K.C. (with contributions from Matthew Jackson, Dennis Murray, K.C., John Conroy, K.C., Tony Serka, K.C., Ritchie Clark, K.C., Del Sokol, Lewis Spencer, and Michael Bain, K.C.)

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A.

NEW JUDGE

By R.C. Tino Bella

The Honourable Justice Judith Hoffman

“I come from open prairie

Given some wisdom and a lot of jive”

—Songs of a Prairie Girl, Don Juan’s Reckless Daughter, Joni Mitchell

Justice Judith Hoffman was appointed on Monday, May 27, 2024 to the Supreme Court of British Columbia and sits in Vancouver.

Judith is a lifelong learner with deep roots in Alberta and British Columbia. Her legal career is shaped by her innate curiosity, resilience and passion for justice. Born in Lethbridge, Alberta, to Hal and Marie Hoffman, and raised there as well, Judith was the youngest of three siblings and grew up in a household where education and exploration were valued. Her childhood summers were spent packed into the family station wagon with the camping trailer built by her father in tow. The family explored the wilds of British Columbia and Alberta and drove frequently across the prairies to visit family in Manitoba. Winter weekends were often spent on the closest ski hills in the southern Rockies.

Judith’s father taught mechanics at the local community college and at the same time went to night school while he and Marie raised the family. Eventually, he earned a master’s degree in vocational education from the University of Alberta. Judith remembers being quite proud to attend his convocation ceremony, a milestone that instilled in Judith a profound respect for hard work, commitment and scholarship. Marie provided assistance to seniors as a home health care worker. For many, this would seem like a thankless job, but Marie approached it with patience, care, respect and the desire to give her clients the dignity they deserved at a vulnerable

time in their lives. With the encouragement from Hal and Marie to learn and better herself, Lethbridge provided Judith with a wonderful place to learn and grow.

In what is perhaps the first clue to her future, Judith lived just down the street from now Chief Justice Ron Skolrood, who, as a close friend of her big brother Rob, was a familiar presence in the Hoffman household. Big sister Susan was a model Girl Guide who proudly displayed her achievements on a blanket covering the wall of her bedroom and attended Girl Guide jamborees in far-flung locales. The Girl Guides were not for Judith, however, who instead spent a lot of time at the roller rink in junior high and remembers being dropped off by her dad in his powder blue 1962 Pontiac Parisienne station wagon which her mom had outfitted with curtains. Groovy!

At the University of Lethbridge, Judith majored in political science. In first and second year, she worked doing research for Dr. Peter McCormick for his book Judges and Judging: Inside the Canadian Judicial System. Her research involved many hours of reading judicial decisions in the Lethbridge courthouse library to collect the data Dr. McCormick analyzed for his book. Here Judith got her first introduction to the judicial system and the central role that judges play. The book lists a judge’s valued qualities as follows: industry, a willingness to work, courtesy, simple politeness, empathy, humanity, compassion, sensitivity, patience, the willingness to hear people out and not to hurry things through, knowledge of the law, intelligence, fairness, even-handedness and a sense of fair play. These are the very qualities that Judith has and will utilize effectively in her judicial career.

The summer after her first year of university, Judith travelled with two friends to the United Kingdom where, after a few false starts, she landed a job at Harrods along with many other Canadian and Australian travellers. Judith worked in the toy department in a section that sold high-end handcrafted mahogany rocking horses. One day, two young boys came in with a contingent of men in suits and started to ride the rocking horses, which was verboten. Judith and her hapless Canadian co-worker were about to tell them to dismount when they were informed that they were in fact Princes William and Harry! At a recent judge’s conference, Judith met a former Harrods work colleague from the toy department who is now Justice Suhail A.Q. Akhtar on the Ontario Superior Court of Justice.

By third year, Judith really started to enjoy studying history and she contemplated an academic path. However, an eagerness to expand her world beyond the big sky and rolling prairies of Lethbridge prompted her to apply to the University of Victoria Faculty of Law who were glad to wel-

come her. Judith excelled at law school, and UVic’s strong academic program and commitment to community engagement and social justice was a good fit.

Upon graduation, Judith moved to Ottawa and clerked at the Federal Court for Justice Howard Wetston, who prior to his appointment to the Federal Court was the Director of Investigations with the Competition Bureau. Judith returned to the west coast and articled in Vancouver at Alexander Holburn Beaudin and Lang (“AHBL”). There, Judith started her litigation practice working with the insurance defence group. AHBL seems to have produced a disproportionate number of judicial appointments, some of whom were Justice Hoffman’s colleagues at AHBL: to name a few, Justice Allan Ross, Justice Neena Sharma, Justice Shannon Ramsay, Justice Scott Morishita, Justice Diane MacDonald, Justice Maria Morellato, Associate Judge Lawrence Robinson, and Associate Judge Terry Vos of the Supreme Court, and Justices Janet Winteringham and Margot Fleming of the Court of Appeal. While at AHBL, Judith developed an interest in kayaking and took three kayak trips with colleague Eileen Vanderburgh. On one trip to Nootka Sound, they got fogged in for two days across from Friendly Cove. Eileen had brought a copy of the journal of the British explorer John Jewitt (1783–1821) who spent 28 months as an enslaved captive of Chief Maquinna of the Nuu-chah-nulth people of Nootka Sound. They both read it, fascinated to learn about Indigenous culture and colonial history. Little did Judith know then that when she joined the Department of Justice several years later, this journal would be a key piece of evidence in the Ahousaht Aboriginal fishing rights trial that she would cross-examine historical experts on for several months.

In 1997, Judith moved to Dickson Murray (now Murray Jamieson) to practise insurance, commercial and personal injury litigation. The firm—an all-female group of top litigators with a reputation for excellence—quickly became family. Whenever one of the firm’s leading lawyers (Alison Murray, Gail Dickson and Karen Jamieson) was in trial, they would all gather at the Law Courts Inn for lunch to discuss the morning’s evidence and to strategize. The Wedgewood was the venue of choice when trials were bumped. This was fertile ground to hone Judith’s litigation skills. While she learned a lot to advance her litigation career, her favourite assignment at the firm was being entrusted to plan the firm retreat to Napa Valley.

In 2001, Judith became the legal officer at the British Columbia Supreme Court and was privileged to work for and learn from the late Chief Justice, Donald Brenner. It was a sneak peek at, but clearly not entirely discouraging preview of, life on the bench. Her time working at the court gave her a

window into the judicial role and what struck her at the time as an observer was the tremendous collegiality between members of the bench and their commitment to serving the citizens of British Columbia.

For the last 20 years, Judith rose through the ranks at the Department of Justice, becoming General Counsel and a respected colleague who provided significant mentorship and guidance both in the region and nationally. In this role, Judith served Canadians while working on significant public law cases in a wide variety of different contexts including three public inquiries. Judith’s colleagues at the Department of Justice described receiving the news of her appointment with a mixture of genuine joy for the recognition of a brilliant colleague and dear friend, tinged with sadness at losing someone of her calibre and leadership, someone to whom everyone turned in moments of need, big and small, professional and personal.

On a personal level, Judith is married to John Wall and their pride and joy is their daughter Zoey. The love of good food plays a central role in their home life, and Judith often expresses gratitude for John’s considerable culinary talents. As a family, they have enjoyed many travel adventures together of both the urban and great outdoors variety. During the pandemic, she and John took up sailing and they have enjoyed time exploring the Gulf Islands and Sunshine Coast. Judith also nurtures creative personal pursuits—she took up knitting later in life and even accepted a commission to knit a dog sweater for a colleague’s pet!

The people of British Columbia are in good hands. Justice Judith Hoffman has all the skills, intelligence, knowledge, humanity and fairness to make her an excellent judge. We wish her the very best in this new endeavour.

LETTERS TO THE EDITOR

Dear Editor,

Re: “The George F. Curtis Building – Faculty of Law” by Bruce Wooley, K.C., (2025) 84 Advocate 197

As a 1975 graduate from the law school, I was gone before the Curtis Building opened. My memories are of the second building and the huts. Mr. Woolley, K.C., is correct in the opening paragraphs of his “non-academic memory journey”, describing the most important features of the second building: the main reading room, law west and law east. There was, however, another room that may stand out in the memories of pre-Curtis Building graduates: the moot court office. This was located in the basement under the stairs of the second building. It was here that students came to pick up their assigned fact patterns and exchange their factums.

By R.C. Tino Bella*

I was assistant moot court registrar (1973–1974), under Maria Giardini, and moot court registrar (1974–1975). This dank room was my bailiwick. As such, I had the pleasure of meeting most of the students of that era (although the pleasure was mine, not theirs). It also gave me the luxury of having my own office during the currency of my term—no lugging books back and forth each day.

Many years later, along with my other partners at Richards Buell Sutton LLP, we made substantial donations toward the construction of what is now Allard Hall and the UBC Business Law Clinic. Our first contribution lives on through the Richards Buell Sutton reading room at the law school. The reading room is described as “filled with natural light streaming through the two-story stained glass windows that overlook the North Shore

* Letters to the editor may be e-mailed to <mbain@hhbg.ca>. Letters published do not necessarily reflect the views of the Advocate or its staff. We encourage a diversity of voices and views in our pages.

mountains and the waters of Burrard Inlet”. Truly reminiscent of the former main reading room.

Yours,

Colin Millar West Vancouver

Dear Editor, Re “Entre Nous” (2025) 83 Advocate 171 – Some Musings on Curiosity

As a long-time proponent of curiosity, I very much appreciated your musings. I have two more to add to your list.

First, I have seen both clients and counsel jump to conclusions

about the motivations of opposing counsel or litigants. A bit more curiosity could lead to a better understanding of what is motivating the other side. This is especially useful in negotiations.

Second, and more importantly, I have consistently espoused the idea that it is difficult to be simultaneously both curious and angry. Cultivating the curious mind can have huge paybacks, not only in legal practice, but in life.

All the best, Jonathan Chaplan Vancouver

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LEGAL ANECDOTES AND MISCELLANEA

By D. Michael Bain, K.C.*

THE CASE OF THE MISSING MADONNA— PART II1

Part I of this article2 followed the path of the Leonardo da Vinci painting Madonna of the Yarnwinder—valued at between £30 and £50 million—stolen in broad daylight from Drumlanrig Castle in 2003 and delivered on a stormy night in a pub car park just south of Liverpool to Robbie Graham and Jackie Doyle, proprietors of the website “Stolen Stuff Reunited” in 2007. Graham (the “Silver Fox”) and Doyle had obtained the painting in exchange for a £150,000 bank draft and £350,000 cash procured for them by their English solicitor Marshall Ronald.

Ronald had been advising the pair on how to reunite the painting legally with its owner, the Duke of Buccleuch, and had secured a £2 million reward for his clients with the duke’s representative, John Craig. After the duke’s sudden death, Craig continued to act for the duke’s family and had also agreed to provide Ronald with an additional £2.25 million to be deposited into an offshore account in Ronald’s name. Ronald had not told his clients, Graham and Doyle, about this additional £2.25 million, nor had he told them that the £350,000 cash he had provided for the transaction had come from another client’s trust account.

With the painting safely on the back seat of Graham’s mint green Jaguar, the Silver Fox and his cohort headed north to Glasgow, to deliver the painting to the law office of Scottish solicitors, David Boyce and Calum Jones. Boyce and Jones had been retained by Ronald to advise on Scottish law concerning the return of the painting. It was they who recommended Ronald reach out to the insurance adjuster, Mark Dalrymple, who then put Ronald in touch with the duke’s representative, John Craig. The trouble was, the

* D. Michael Bain, K.C., is the editor of the Advocate

rain was pounding down so hard that the proprietors of “Stolen Stuff Reunited” decided that they had no option but to stay in a hotel overnight. They chose the Lockerbie Manor Country House Hotel and booked themselves into a twin room, number 42 for £110. They brought into the room with them the stolen Leonardo da Vinci painting worth £30 to £50 million. Neither one of the likely lads slept well that night; given the precious item they had in their possession they stayed awake listening to the rain, the creaks and groans of the hotel, and every footstep that went passed the thin hotel room door. In the morning, Graham nipped out to the local corner store and picked up a couple of disposable cameras. The pair snapped photographs of themselves next to the painting which was propped up on a chair. The Silver Fox tried a couple of different poses, one wearing a blazer and tie, the other two more casual with a collared shirt and trousers. Actually, two different collared shirts. He obviously felt it was a special occasion and tried a few different outfits.

Meanwhile, a group had assembled at the Glasgow law offices of Gateley Waering where Graham and Doyle were headed to deliver the painting. Marshall Ronald was there with Scottish solicitors David Boyce and Calum Jones. Also present was David Restor, an art expert retained to receive the painting and confirm its authenticity. The insurance adjuster, Mark Dalrymple, was there, as was John Craig, the Duke of Buccleuch’s family’s agent who had negotiated the reward money.

When Graham and Doyle arrive, Ronald greeted them and brought them into the main board room of Gateley Waering. The team was excited and they were introduced to David Restor, who shone a light over the front of the canvas and placed a stencil over the back of the painting. If the stencil lined up, it would reveal the painting to be genuine. Satisfied that it was the real thing, Restor secured the painting by lock and key into a special stainless steel case.

Marshall Ronald explained what happened next:

When the painting was validated, John Craig left the room with me and made telephone calls in my presence to either the Duke of Buccleuch’s personal secretary or Anderson Strathern [the insurer]. He gave them instructions to transfer specific sums of money to specific accounts. At that point, I sent a text to my wife which said: ‘done.’

Ronald and Craig then returned to the boardroom where Graham and Doyle were tucking into some tea and biscuits. The party was discussing where to go for a celebratory lunch when suddenly the doors burst open and in swarmed a dozen police officers. Everyone in the room was under arrest. The group was bundled into a van and taken to Glasgow City Centre Police Office. The following morning they were transported to Dumfries police station.

It was sitting in the cells of Dumfries police station that Marshall Ronald told his clients that contrary to what he had told them at Euston Station a week earlier, he did not actually have a signed agreement with John Craig. The agreement had been verbal only, and John Craig said he could not sign the agreement until the painting was confirmed to be genuine. There were more shocks in store for Graham and Doyle (and Ronald). John Craig, it turned out, was not a representative of the Duke of Buccleuch (or his family) at all. John Craig was an undercover police officer. The call to release the reward monies to Marshall Ronald had really been the signal to let the police know that they could raid the building.

The day after they were arrested, Ronald, Graham, Doyle and Jones were charged with conspiracy to rob and extort money. The second Scottish solicitor, Boyce, was later charged with the same offence.

The sum which the conspiracy was said to be extorting was £4,250,000 and yet Graham and Doyle had only ever been told of a reward amount of £2,000,000 out of which the ransom money of £500,000 had to be paid, Ronald’s legal fees had to be paid, and the remainder was to be split five ways between Graham, Doyle and the three solicitors: Ronald, Jones and Boyce. Ronald, however, had written to John Craig on his own behalf, to secure another £2,250,000 in reward money for himself. As Ronald later explained:

I was the one, suddenly, who was taking all of the risks. I’m saying to myself, thinking to myself, right, I am the person who’s got to provide money up front to make this deal happen. Well, somebody somewhere is taking a commercial gamble. That happened to be me. And I was seeking recompense for the assertion, the assumption of that risk.

Under cross-examination Ronald explained withholding his side deal with John Craig as follows:

Q: “All right. And another matter that you didn’t want to tell them about was the two million pounds.”

A: “Yes.”

Q: “Where’s the integrity, keeping from your own clients the fact that you’re going to make an extra two million pounds for yourself, where’s the integrity there?”

A: “The integrity was to make sure that this transaction was completed. That was the overriding objective. The clients were content with the two million.”

Q: “And of course, there was the small matter of lifting 350 grand from a client’s account. And that’s not proper.”

A: “I agree.”

Q: “There’s no integrity in that, is there?”

A: “It was a major lapse of integrity on my part. It was terrible what I did.”

The High Court of Justice in Edinburgh heard a lot of evidence on behalf of all of the defendants. The main witness for the prosecution, however, was John Craig, the undercover police officer who testified from behind a screen. Craig had been contacted by the insurance agent, Mark Dalrymple, as soon as Marshall Ronald had made contact. Thereafter, Craig posed as a representative of the duke and recorded all of his phone call conversations with Ronald which included discussing the reward money and just how the painting would be procured and delivered in Glasgow. Craig struck the side deal with Ronald for the additional £2,250,000 and he also met with Ronald and Graham at Euston station when it looked like retrieving the painting might be in jeopardy. That was the one meeting with Ronald that Craig did not record. Unknown to both men, however, was that Graham had recorded the meeting. Graham did not tell the police about the recording and he did not even tell his own lawyer about the recording initially. Nevertheless, he eventually produced it and it was played in court.

The recording detailed the men discussing the plan for getting the painting back. Ronald made his assurances that he had a signed agreement in place that would protect Graham and Doyle if something went wrong (which was not true). It also detailed Graham saying: “As I said, I don’t want to be getting into no trouble. Don’t want to be in the paper and they’ve got grown up kids and one thing or another. That’s what I’m saying. I don’t feel I’m doing anything illegal or wrong.” Indeed, Graham had gone to Ronald to make sure they could retrieve the painting legally and collect the reward money. He attended the Euston meeting seeking reassurances. But key in the entire exchange was this one with John Craig:

Graham: “I will do what you instruct to the letter. After this, if my instruction was to get it to go on the nearest police station, I would do that.”

Craig: “Right, I don’t want you to do that.”

Graham: “Whatever you want me to do, go and question it and I’ll do it. And I can get this painting for you.”

This exchange was put to John Craig under cross-examination:

Q: “He made you an extraordinary offer.”

A: “I’m not sure, sir.”

Q: “Well, the offer was to hand the painting into the nearest police station. That was an extraordinary offer. Do you not agree?”

A: “That was an extraordinary offer, one which I said I didn’t want him to do that I would explain why I didn’t want him to do it. But he didn’t seem interested in those reasons, sir.”

Q: “How could you refuse such an offer?”

A: “Because I believed entirely that if I’d said, oh yeah, leave it into the police station, that that would have been proof that there was something going on.”

Q: “The offer is made but you do not discuss the matter at all. Do you accept that?”

A: “No, sir. I would like to have discussed the matter. If you remember, my response is, I do not want you to do that, and I will tell you why, at which point Mr. Graham talks over me, showing no interest in why I do not want him to do so.”

Q: “You see the funny thing is, or the curious thing is this, that although this meeting went on for some time, not once did you ever raise the matter with Mr. Ronald on his own, or with Mr. Graham on his own, or with the two of them, do you agree with that?”

A: “I agree with that entirely, yes, sir.”

Q: “You didn’t put it into your debrief notes?”

A: “No, I forgot to, sir. No.”

Q: “I beg your pardon?”

A: “I forgot.”

Q: “You forgot? Now, the time of your brief note was 21:33, and this all happened between four o’clock and five o’clock. How did you forget such a stunning change of events when an offer was being made to you to return the painting? How could you possibly forget?”

A: “I overlooked it, sir.”

Q: “You had an agenda beyond the recovery of the painting.”

A: “I had no agenda.”

Q: “Yes, you had.”

A: “No, I didn’t.”

Q: “Let me finish. Your agenda was to arrest bodies. You wanted people arrested, and that’s why you refused the offer to put a painting straight into a police station, because you knew if that happened, your path in it was finished.”

The trial was eight weeks long. Four of the five defendants testified (Doyle did not). The jury deliberated for two days. The two Glasgow lawyers were found not guilty. The charge against Graham, Doyle and Ronald was that curious finding unique to Scottish law: “not proven”. Not proven under Scottish law meant that the prosecution could try again, but it decided not to. All five defendants walked free.

While Graham and Doyle were successful in retrieving the stolen painting, they never did receive any reward from the Duke of Buccleuch’s family. The court case ruined them financially and both men have since died. The two Scottish solicitors, Jones and Boyce, were both forced to resign from the firm they worked for and Ronald was disbarred for having used £350,000 of his client’s money to pay the ransom to obtain the painting. Nevertheless, he sued the police and the Duke of Buccleuch’s estate for the £4.5 million reward negotiated for the return of the painting. After some initial procedural successes, Ronald’s lawsuit was dismissed in January 2015 and no reward money was ever paid for the successful delivery of the stolen painting.

A reader of Part I of this article, David Yorke, reported that the Madonna of the Yarnwinder safely hangs in the National Gallery of Scotland in Edinburgh, on loan from the Duke of Buccleuch, and sent us the accompanying photograph. Perhaps unknown to him, however, is the claim that if you take the painting off the wall and flip it over, among the various gallery catalogue numbers and dates identifying when the painting has been loaned for exhibits, there is a signature of Robert Graham, signing as “The Silver Fox”, something he apparently applied when staying overnight at the Lockerbie Manor Country House Hotel with the painting the day before its return and his arrest.

ENDNOTES

1. Details in this article are derived from HM Advocate v Ronald & Ors [2009] ScotHC HCJAC 177 (30 April 2009) and Olivia Graham, host, “The Missing Madonna”, Radio Scotland, BBC Sounds, 18 August 2023, online: <www.bbc.co.uk/programmes/p0g7 fyrn/episodes/downloads>.

2. D. Michael Bain, “Legal Anecdotes and Miscellanea: The Case of the Missing Madonna Part I” (2025) 83 Advocate 295.

FROM OUR BACK PAGES

By R.C. Tino Bel

WHAT IS A PRACTICE MANUAL*

By Tony Gargrave

Slowly the law profession is gathering a group of practice manuals together to help in the mundane work of getting things done in a law office.

The client comes in. You clear off your desk. This takes 10 minutes. It later takes 15 minutes to re-assemble the material, so the client’s visit has cost 25 minutes of your time before you have spoken to the client. Sometimes you clear off your desk and the client does not come in at all.

Twenty minutes of the interview is spent in hand-holding. The client is distraught. His spouse is hounding him. He is surprised that he cannot get a divorce within 30 days. He thinks your fees are exorbitant and the client leaves without retaining you or paying you. That is one hour gone.

The bank phones. You have an overdraft. It is a big bank. You have never heard of the clerk who is phoning you and the clerk has never heard of you. Practising law is a problem.

No matter how wise, compassionate, or experienced the lawyer is, he still has to get things done in the office. The client wants a release drafted, or an assignment drafted. Where is the precedent you used last time. Is it still valid, or was it valid the first time you used it?

Practice manuals are stored experience on process and trivia. They help get things done and save time in the law office.

* Reprinted from (1989) 47 Advocate 219.

Manuals list procedural steps and illustrate the form of necessary documents. They warn of obvious pitfalls to avoid, but rarely give advice on law unless it affects the procedure, such as when you should issue a writ before the end of the limitation period.

Lawyers have texts, encyclopedias, and case law, and precedent books, listing commercial documents and civil pleadings, but practice manuals are rare. Scholars write texts during the long academic vacation, but practising lawyers do not get vacations.

A practice manual should tell you what to do as far as form is concerned, and it should indicate procedure, and document the flow of paper.

An example is a conveyance of land. What should you do first? Get your fees, or run a credit check on the client before he runs a credit check on you? Do you search the title first? Do you call for all the documents against the title before you peruse the certificate of title? I did that once and the messenger brought to my office a 24-foot-long plan weighing six pounds, showing a pipeline route from Vancouver to Edmonton.

The best manual is a previous file on the same matter, providing the law and practice have not changed. Manuals should always give sample letters. Well-written letters give a narrative to a procedure which is hard to duplicate. May I give an example: “Thank you for returning the company’s annual report and minutes one day before the two-month limit expires, requiring a double payment of fees to the Registrar. I have forwarded the company’s annual report to the Registrar today. I regret to note that you have not enclosed your cheque for my fees and disbursements.”

Practice manuals should begin with a simple checklist. Manuals cannot be definitive and an author should not attempt to be definitive because if he does, the author may well lose the theme or principle involved in the process and make the manual unintelligible.

Trivia must be included because trivia is what a practice manual is all about, but exceptions and unusual examples should be in an appendix or a separate section.

The basic procedure should be refined and simplified so that the reader can see the shape of the procedure and understand the concept involved. Sometimes there will be little logic to the procedure because it grew historically. That is why manuals are so necessary to the profession. Even the memory of experienced secretaries and lawyers cannot recall all the details. Without the fixed tracks of procedure, everything would take twice as long and errors would creep into the process. However, when the law office is on the established tracks of tested procedure, the engineer and conductor must stay awake for the whole journey.

Practice manuals are slow in being published. They are horrendously difficult to write. They require good experience, understanding of the process, and a strong will to complete the work.

Manuals are like machine tools for making automobile fenders. The huge presses cost millions of dollars, but when they are designed and built, they sure can make a lot of fenders. Raising the capital to build the presses and summoning the economic and political will to construct the presses require major outputs of human energy.

Practice manuals should:

l. Illustrate procedure with a checklist and give an instructional overview of the problem, e.g. Step one: search the title.

2. Exhibit basic documents. e.g. Transfer or mortgage, and advise on drafting.

3. Warn of the main pitfalls of the process. e.g. Draw a final payout statement so that you do not promise to pay out money you will not have.

4. Exhibit basic correspondence to assist staff and give a narrative explanation to the process. e.g. “Please be kind enough to provide me with a certified cheque for the purchase money, and please do not stop payment on the certified cheque after you have delivered the cheque to me. P.S. Perhaps I had better certify your cheque myself.”

5 Give tips on style and etiquette where appropriate. This makes it easier on the whole profession and benefits clients in the short and long run.

6. Give agendas for critical meetings. e.g. Taking first instructions or closing transactions.

7. Advise on billing and reporting to the client. e.g. “I enjoyed doing this work for you, especially when you changed your instructions after I had prepared all the documents.”

8. Give applicable law where it affects procedure. e.g. Do you start with a petition or a writ?

9. Estimate the time to do the work, or exhibit usual or average fee schedules, e.g. this article took six hours to write and proofread.

Two recent practice manuals which have been impressive have been written by Heather Mackenzie. She has authored and published Guide to Civil Litigation and Guide to Conveyancing, Evin Ross Publications, P.O. Box 148, Delta, B.C. V4K 3N6, Tel: 536-0212. There are other good manuals in use in British Columbia. Miss Mackenzie’s manuals carefully illustrate the procedure. They are a memory bank of essential trivia. These manuals free the lawyer so that he can keep general principles in mind and spend more time with the client than he spends with the Xerox machine. Good manuals keep down overhead and they prevent errors. The profession should do more to produce these machine tools for their members.

BENCH AND BAR

Flowing clothes, freedom from haircuts, flowers in our hair and rebellion against the material greed of the president of our southern neighbour were on our minds when we chose “hippy” (or “hippie”) as this issue’s summertime theme. We realized in short order, however, that while today the word may sound mellow and nostalgic, not that long ago it sparked outright hostility, including from fellow citizens, police, prosecutors and some judges. Read the results of our unexpected trip—no, not that kind—into recent history below, as well as about the transcendental and physical journeys of our colleagues at bench and bar.

Tim Brown, Ariel Lekas, Max S. J. Shilleto, Navneet Aujla and Alexander Lee collectively move from Richards Buell Sutton to join Lawson Lundell. Kristi M. Wong moves from Denton’s Calgary office to join Roper Greyell. Tarek K. Elneweihi joins Harper Grey as associate counsel. Also newly aboard at Harper Grey is Aren Altman, who was with Altman & Company. Mihai Ionescu moves from Sangra Moller to join Kornfeld. Joesph (Joe) D. Antifaev moves from Harper Grey to join Carfra Lawton. Juliana Pyde leaves Jenkins Marzban Logan and moves her family law practice to Silver Selinger. Kayli J.C. Maguire becomes head of legal at Employer.com, having been in-house with Bench Accounting previously. Yong-jae Kim is now assistant general counsel with the Doman Building Materials Group, moving from Uranium Energy Corp. Patrick Sullivan moves from Osler, Hoskin & Harcourt to join Fasken. Curtis Basham moves to Dennis Dawson James Aitken from Gudmundseth Mickelson. Brooke A. Fernandes is now with

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.

KSW Lawyers having left BKS Law. Kate Marples moves back to Legacy Tax + Trust Lawyers after a stint with KPMG Law. Lars R. Brusven leaves Lax O’Sullivan Lisus Gottlieb to join Fasken. Katie G. Mak lands at Norton Rose Fulbright after departing Clark Wilson.

“The late sixties and early seventies were a period of rampant drug abuse and the widespread rise of the hippie counterculture”: Newstead v. The Canada Trust Co., 1996 CanLII 564 (B.C.S.C.).

Esquimalt-Saanich-Sooke Liberal MP Stephanie V. McLean was recently sworn in as secretary of state for seniors.

Britannica explains that a hippie was a “member, during the 1960s and 1970s, of a countercultural movement that rejected the mores of mainstream American life … The name derived from ‘hip,’ a term applied to the Beats of the 1950s, such as Allen Ginsberg and Jack Kerouac, who were generally considered to be the precursors of hippies.” For the fashion conscious, Britannica adds: “Hippies were also known for their unique style, favouring long hair and casual, often unconventional, dress, sometimes in ‘psychedelic’ colours. Many males grew beards, and both men and women wore sandals and beads. Long flowing so-called granny dresses were popular with women, and rimless granny glasses with both men and women.” It further explains: “By the mid-1970s the movement had waned, and by the 1980s hippies had given way to a new generation of young people who were intent on making careers for themselves in business and who came to be known as yuppies (young urban professionals).”

Chief Judge Melissa Gillespie will continue to hold the office of chief judge until December 31, 2026, extending her seven-year term by a year. Joining her as new judges of the Provincial Court are Aamna A. Afsar, Christopher M. Balison and Dennis Isaac Ferbey, as well as new judicial justice Patrick D. Angly

The defendants “filed a nine cause of action counterclaim about as long as a hippie’s hairdo”: Brasher Motor and Finance Company v. Brown, 23 Utah 2d 247 (1969).

Peter D. Nyhuus, Maxwell P. Pappin and Alissa D. Reynolds were all appointed as members of the Civil Resolution Tribunal on a full-time basis for terms of three years. Megan I. Stewart was reappointed as a member on a full-time basis for a term ending October 17, 2030.

We would not describe these musicians as hippies, but they seemed to have some relevant points or counterpoints to offer. “[F]rom about 2015 onwards, the [condominium board of directors] had simply stopped listening to what Ms. Lauder was saying. As Paul Simon wrote in The Sound of Silence, they had become ‘people hearing without listening’”: Lauder v. The Owners, Condominium Plan No. 932 1565, 2021 ABQB 145. Further, “[i]n 1970, Simon and Garfunkel sang about how great it was to be back home, and of trying to keep the customer satisfied. Apparently, they never tried to build a home for the Claimant”: Buchanan v. Stone’s Prestige Homes, 2025 NSSM 19.

In a recent Law Society by-election, Nicole E. Smith was elected as bencher for the County of Nanaimo.

The court in Hughes v. Rizzo, 282 F. Supp. 881 (E.D. Pa. 1968) observed: The “cultural phenomenon commonly known as the ‘hippie’ movement” is “difficult to define. ‘Hippies’ have been variously described as ‘***The first wave of an approaching ocean of technologically unemployable people created by snowballing cybernation in American society’ (Musicologist Lou Gottlieb); ‘***escapists from the affluent society that produces and sustains them***opposed to the everyday middle-aged values of affluent America its commercialism, mechanism and bureaucracy; its car culture, hygiene and unquestioned acceptance of the work ethic and the quick buck’ (Researcher Bryan Wilson); ‘young seekers’ (Poet Allen Ginsberg); and ‘***the prophetic community’ (Poet and Editor Allen Cohen)”.

“It is common for many to look down their noses at the proponents and acolytes of the anti-vaccine and anti-mask ideology, in the way respectable people viewed members of the hippy counterculture in the 1960s”: Tevlin v. Sobolev, 2023 ONSC 5915.

The members of 2025/26 Canadian Bar Association BC Branch executive are Patricia Blair, president, Connor Bildfell, first vice president, Sarah L. Klinger, second vice president, Dan A.T. Moseley, finance & audit chair, Anwar Mujtabah , Young Lawyers Rep, and Dimple Kainth, Laurel D. Hogg, Randy W. Robinson and Rebecca L. Darnell as the directors at large.

Nika Pidskalny and Laurel Hogg were appointed to the Provincial Council of the Canadian Bar Association, BC Branch as the Yale representatives.

Canned Heat’s “Going Up the Country” has been described as a “rural hippie anthem”.

Kellie L. Scott was appointed as a member to the board of the British Columbia College of Social Workers for a term of one year to expire April 25, 2026.

In cases including R. v. Hofer, 2016 BCSC 1442, courts have had to deal with hippy-related hypotheticals, in that case being that “[a] retired gentleman of the hippy generation, who lives an otherwise law-abiding life at his retirement property in the countryside, grows 501 seedlings at his outdoor or indoor garden with the intention of using some of the product himself and giving some to persons who are either licensed or unlicensed medical marihuana users.” The court noted, “it is unlikely that a retired gentleman (or anyone for that matter) would grow this much marihuana to give away”, but it was “prepared to accept that this hypothetical is, although unlikely, nevertheless foreseeably captured by the minimum conduct caught by the offence.” This said, “irrespective of the hypothetical gentleman’s characterization as a former hippie and leaving aside his intention to give away much of the product to medical marihuana users, it is inescapable that this hypothetical involves a large-scale illicit grow operation.” The court could not “conclude that a sentence of two years would meet the very high test of gross disproportionality in these circumstances”. Rather, “[i]n the circumstances, the hypothetical gentleman’s conduct gives rise to the same significant community risks as does the conduct of the commercial operator. In other words, notwithstanding the hypothetical gentleman’s altruism, his offence is a grave one because it gives rise to a significant risk of harm to the community. He knowingly engaged in serious criminal conduct.”

Attorney General Niki Sharma, K.C., recently announced the appointment of 29 deserving practitioners as King’s Counsel (no, there are not some undeserving ones whose names we are holding back): Peter Ameerali, Morgan Camley, Michelle Casavant, Nikki Charlton, Mary Childs, Beverly Churchill, Christina Cook, Barbara Cornish, Vincent Critchley, Michaela Donnelly, Stephanie Fabbro, Grant Haddock, Kevin Kohan, Andrew MacDonald, Andrea MacKay, the Honourable Anne MacKenzie, Raji Mangat, Suzette Narbonne, Emily Ohler, Mark Oulton, David Peterson, Georges Rivard, Salima Samnani, Kate Saunders, the Honourable Jon Sigurdson, Thomas Spraggs, Karen Tse, John Tuck and Gaynor Yeung.

As announced in the B.C. Supreme Court’s 2024 Annual Report, the court has struck a Reconciliation Working Group (“RWG”). As the court’s recent announcement states: “The RWG is informed by the work of the Truth and Reconciliation Commission of Canada and the Calls to Action, and has been

established to examine the Court’s role in advancing reconciliation. The Court invites those who are interested - including Indigenous Peoples or organizations, members of the bar or the public, or those with matters before the Court - to suggest ways that this might be done.” Comments can be provided by email to <ReconciliationFeedback@bccourts.ca> until September 30, 2025.

Miranda L. Lam, K.C., was reappointed to the board of the University of British Columbia for a term ending February 4, 2028. Byron M. Thom was reappointed as a member for a term ending July 31, 2028.

Carol L. Schafer was appointed as a member of the board of Okanagan College for a term ending July 31, 2026.

Given the current tariff madness and the likelihood there may be none left by then, the Provincial Government named September 15 to 19, 2025 as Supply Chain Week.

Says one profound sign on the internet: “If it’s in stock we have it!” Among other good signs:

CAUTION PEDESTRIANS SLIPPERY WHEN WET and: CAUTION WATER ON ROAD DURING RAIN

and a good instruction on children’s clothing: WASH INSIDE OUT REMOVE CHILD BEFORE WASHING

Nicholas U. Smith was reappointed as a member of the board of Langara College for a term ending July 31, 2027.

In Calbillo v. San Jacinto Junior College, 305 F. Supp. 857 (S.D. Tex. 1969), a student sought injunctive relief against officials who suspended him from the college for having a beard, contrary to a regulation brought into place in

part because the college considered “long hair and beards” to be the “badge of hippies”. The court noted the record was “completely devoid of evidence that any type of disruption has been occasioned by the wearing of beards on campus” and that neither logic nor common sense supported the contention that “beards and hair styles are a sufficient indicator of potential campus troublemakers”. The court explained:

In this Court’s chambers are portraits of six great jurists, starting with Moses and ending with Justice Holmes, one of the great justices of the Supreme Court, who died in 1935. Also included among these portraits are those of Justinian, Solon, Coke, and Marshall. All of these men had distinctive hair styles, some had mustaches, and some had mustaches and beards. Many other examples of men who have and do wear distinctive hair styles, sideburns, beards, and mustaches could be given. Certainly, such are not a badge of a troublemaker or a malcontent. Unless there is a showing that a hair style or a manner of dress has a reasonable relationship to the health, welfare, morals, and discipline of students, a sweeping prohibition regarding same cannot in this Court’s opinion be sustained.

The court concluded that the regulation in question constituted an unreasonable classification in violation of the equal protection clause of the Fourteenth Amendment.

Leah L.J. Mack was reappointed as a board member of the Royal British Columbia Museum for a term ending April 30, 2027.

“The respondent’s design trade-mark is bordered by a diamond shape. It is more than the stylization of a number and letters. It contains scroll work inside the diamond shape and it uses a flower in the form of the letter ‘O’. It suggests a summer carefree flower-child such as found at the Woodstock music festival in 1969”: 4-You A/S v. Christina Amérique Inc., 2003 FCT 798.

Christopher Johnson, K.C. , was the recipient of the prestigious 2025 Georges A. Goyer, QC Memorial Award for Distinguished Service.

Susan I. MacKenzie was reappointed to the Mental Health Review Board for a term ending September 22, 2028.

“I do not suggest or imply that the use of narcotics or selling them and living a ‘hippy life’ from the proceeds is automatically mental cruelty entitling the spouse to obtain a divorce. Such a proposition or conclusion would be ridiculous. But I am satisfied beyond the degree of proof required that the actions and attitude of this man to this (well-bred, gentle and sensitive but sensible) woman resulted in a perhaps short, but nevertheless vivid period of exquisite mental torture for her”: F. v. F., 1970 CanLII 828 (B.C.S.C.).

“LSD is a potent hallucinogen that can alter a person’s perception of reality and vividly distort the senses. The highest peak of usage of LSD was in the 1960s and 1970s. It was associated with hippie youth culture”: R. v. Paper, 2010 ONCJ 88.

Admittedly old appellate authority holds that a “hippy” is a person “dressed in scruffy clothes and with long and unkempt hair”: Regina v. Vinette, 1968 CanLII 820 (B.C.C.A.).

Along with Chief Justice Skolrood, each of Justices F. Marzari, V. Jackson, D. Crerar, J. Doyle and S. Ramsay were designated as adjudicators under the Freedom of Information and Protection of Privacy Act

At the recent Lawyers Inn Society “pub quiz” Trivia Night, mighty wits battled it out for bragging rights and a modest trophy. The victors were the “Bench Warmers”, made up of Justices Bernard, Duncan, Veenstra, Whatley and Girn; legal counsel Omri Rozen; and law clerks Will Andrews, Katherine Benson, Emma Chapman and Amy Kaustinen. “Beyond a Reasonable Guess” were voted people’s choice for best team name; that team consisted of Justices Sharma, Murray, Francis, Majawa and Thomas; and law clerks Emma Gibson, Michael Hougen, Jinjae Jeong, Lukas Milne and Caitlin Wardrop.

Kenneth Kai Lam Leung was reappointed to the board of the Chartered Professional Accountants of British Columbia for a term ending June 3, 2028.

“In and about the area of Yorkville Ave. in the City of Toronto and for at least three years, there has existed a colony of persons, male and female, mainly in age from 15 to 25, who are commonly called ‘hippies’. This name is not descriptive. They appear to scorn all conventions of dress and behaviour but it cannot be supposed that they incline to criminal activities or violence. They seem to be protestors against the prevailing way of life which sees merit in work, appearance and a sense of responsibility”: Re Depoe et al. and Lamport et al., 1967 CanLII 316 (Ont. H.C.J.).

“‘Hippie’ has wide currency as a description of contemporary social phenomenon. The term denotes an unconventional young person in rebellion against competitive middle-class values, who usually consorts with his own kind and tends to symbolize his rebellion through hirsuteness and picturesque garb”: People v. Coulon, Crim. No. 5105. Third Dist. (20 May 1969).

Andrew C. Nathan was appointed as a vice chair of the Labour Relations Board for a term of four years.

“While long hair was initially adopted by the original hippies as a sign of social dissent, in recent years the wearing of long hair by males has often been adopted as part of the uniform of the immature. While this evidence of immaturity may tend to raise suspicion it is not in itself sufficient to give rise to disciplinary action unless it directly interferes with the performance of work. Of course, if the employee’s work is adversely affected in a meaningful way by his immaturity, the company would be justified in taking action”: Re United Automobile Workers, Local 636, and F.M.C. of Canada Ltd., Link-Belt Speeder Division, 1971 CanLII 1966 (ON LA).

The CBABC bestowed its 2026 CBABC Awards on three remarkable lawyers at the Provincial Council meeting on May 3, 2025. Hasan Alam of the BC General Employees’ Union was given the Equality & Diversity Award. Gurminder Sandhu, K.C., of Hamilton Duncan, received the Harry Rankin, QC Pro Bono Award. barbara findlay, K.C. was awarded the President’s Medal.

Joanna M. Gislason was appointed as a voting member to the Vancouver Island Health Authority for a term ending April 30, 2026.

“A conspiracy to steal Bentley motor cars from a car dealer in Piccadilly is likely to involve a value in excess of £100,000 even though no cars are actually stolen. A conspiracy to steal a couple of cannabis plants from the balcony of an ageing hippy is unlikely to involve a value in excess of £30,000”: R. v. Hajer, [2022] EWHC 3350 (SCCO), citing Costs Judge Gordon Saker in R v. Garness (132/13).

Andres E. Barker and Stephanie A. Drake were both reappointed as vice chairs of the Labour Relations Board for five-year terms.

“During argument counsel for the appellant used an analogy of two identical buildings, side by side, where one is completely leased on long term leases to triple A tenants such as a provincial or federal government department and the other on short leases to hippies and beatniks. He says the former building would fetch a much better price than the latter. No doubt he is right…”: CIT Financial Ltd. v. The Queen, 2003 TCC 544 (although the court found that, for other reasons, this was beside the point).

Harley J.S. Harris recently joined the board of the Kay Meek Arts Centre.

Pawanjit S. Joshi was appointed to the British Columbia Farm Industry Review Board.

A photograph of this very nice-looking sign appears on the internet:

BEWARE OF INVISIBLE COWS

Most of the Mauna Kea Access Road below Hale Pohaku is open cattle range, and the cows frequently cross the road. Dark colored cows are often invisible in darkness and/or fog. Use extreme caution and drive very slowly in this open range.

Bob Dylan was reportedly unhappy with hippy counterculture, including because of the threat hippies might pose to him and his family. Nonetheless, some of his songs provided inspiration for hippies, so we cannot fail to mention that “[t]he correct rule on the necessity of expert testimony has been summarized by Bob Dylan: ‘You don’t need a weatherman to know which way the wind blows.’ [from Bob Dylan, ‘Subterranean Homesick Blues’ from Bringing It All Back Home]”: Jorgensen v. Beach ‘n’ Bay Realty, Inc., 125 Cal. App. 3d 155 (1981). Similarly, as noted in Royal Bahamian Association, Inc. v. QBE Insurance Corporation, No. 1:2010cv21511 - Document 152 (S.D. Fla. 2010):

One of the fundamental considerations governing the admissibility of expert testimony is whether the expert’s testimony, by virtue of his specialized knowledge or skill, will assist the trier of fact. …As put more poetically and famously by iconic singer-songwriter-poet Bob Dylan in the Subterranean Homesick Blues song on his 1965 Bringing It All Back Home album: “you don’t need a weatherman to know which way the wind blows.” Although Mr. Dylan correctly noted that an expert in meteorology might not be necessary to determine the mere direction or existence of wind, expert testimony may well be needed (or may at least be helpful) in determining whether wind deformed specific windows and doors and, if so, the amount of damage caused by such a hurricanerelated wind event.

The court noted it had to determine whether the expert before it was “a Bob Dylan-type expert whose testimony is unnecessary or incompetent or whether [the witness’s] proposed expert testimony can pass muster and be presented to a jury.”

“Only service dogs allowed in the post office”.

In R. v. Murphy, 2018 NLSC 256, the court noted that “[i]n 1922 an Edmonton Magistrate warned that those under the influence of cannabis ‘los[e] all sense of moral responsibility. … are immune to pain … becom[ing] raving maniacs … liable to kill using the most savage methods of cruelty’”. The

Newfoundland Supreme Court also noted the fact that “[i]n 1964 singer/songwriter, and now Nobel Prize in Literature recipient, Bob Dylan, released his iconic song ‘The Times They Are A Changin’” when it determined that a relatively light sentence was appropriate, in the accused’s particular circumstance, “for possession of cannabis for the purpose of trafficking, in these changing times”.

Justice Fergus O’Donnell seemed to enjoy himself in writing the reasons in R. v. Duncan, 2013 ONCJ 160, starting with why he found himself in the particular courthouse at which he encountered Mr. Duncan:

Overview

[1] “You should get out of town”, the man said.

[2] And so began the journey that resulted in my path intersecting with Matthew Duncan’s path. And thence to these reasons, with a slight detour through territory that might have confused Lewis Carroll.

[3] I suppose that I should clarify that there was no menace in the man’s directive to me to get out of town. He was a friend and a colleague in two careers. His suggestion had been that he and I should change positions for a fortnight, giving him exposure to the realities of the northern reaches of Toronto, while I would enjoy a similar change of environment in the more sylvan environs of Niagara Region. I might even see a few plays in the evenings, he pointed out.

[4] And thus I came to meet Mr. Duncan.

[5] At heart, Mr. Duncan’s case was unremarkable. A minor alleged Highway Traffic Act offence led to a police-citizen interaction in the parking lot of Mr. Duncan’s apartment building in the wee hours of the morning. A request that Mr. Duncan produce his licence led to an alleged refusal, which led to an attempt to arrest him, which led to a struggle, which was captured on a very poor quality video taken on a mobile phone, at the end of which Mr. Duncan found himself being placed under arrest for allegedly assaulting a police officer. Nothing unusual in all that. The bread and butter of provincial court.

[6] Of course, I hadn’t counted on the freemen on the land.

[7] Mr. Duncan was self-represented. Other than a mildly annoying disinclination on his part to stand when addressing the court (although he did stand when questioning witnesses), he was a rather pleasant young man. Unfortunately, he was a rather pleasant young man whose mind was filled with what my late father would have called “notions”. [endnote 1]

[8] It has been said that, given enough time, ten thousand monkeys with typewriters [endnote 2] would probably eventually replicate the collected works of William Shakespeare. [endnote 3] Sadly, when human beings are let loose with computers and internet [endnote 4] access, their work product does not necessarily compare

favourably to the aforementioned monkeys with typewriters. [endnote 5]

[9] Thus it was that the trial began with Mr. Duncan objecting to us proceeding on the basis that I had no jurisdiction over him. Mr. Duncan provided me with an “affidavit of truth”, a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like “jurisdiction” and the like and then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read. This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees and my reading it was a waste of my time and public money. With that volume as his starting point, Mr. Duncan spent some time explaining to me that I had no jurisdiction to try him, that he was not a citizen of the province or the country, that he was not a person as defined by my definitions, that there was no contract between him and me to give me status to sit in judgment over him and so on. As I have said, Mr. Duncan struck me as a perfectly pleasant young man, but on this issue he seemed a bit obtuse. I suppose that if perfectly pleasant young men weren’t led astray from time to time by drugs, alcohol, broken hearts or rubbish on the internet, then the dockets of provincial court wouldn’t be quite as plump as they usually are.

The Evidence

[10] After much to-ing and fro-ing about jurisdiction, either Mr. Duncan or Matthew or his administrator (I never was quite sure which, they were all talking through the same corporeal form) entered a plea of “not guilty” on Mr. Duncan’s behalf and we proceeded to the evidence.

[19] We did not finish Mr. Duncan’s trial on the first day. As I left court that day and contemplated returning in the autumn to finish the trial, it occurred to me that I would have to write rather a lot to address the various procedural issues raised by Mr. Duncan in his tome and his verbal arguments. Now, don’t get me wrong about this; I’d be happy to write until the cows came home about matters of substance relating to the guilt or innocence of the defendant and the liberty interests of a citizen vis a vis the constabulary, but the idea of having to disentangle all of the palaver, nonsense and gobbledygook in the document Mr. Duncan presented to me was not particularly appealing.

The Gods Are Kind

[20] There is an ancient proverb to the effect that “those whom the gods would destroy, they first make mad”. The prospect of disentangling Mr. Duncan’s adopted argument and his volume of internet-derived gibberish made me wonder if, for some reason, the gods had me in their cross-hairs. This concern, however, was dissipated in mid-September, 2012 when the gods made their benevolent nature clear.

[21] If December 7, 1941 is a day that will live in infamy, for anyone faced with “freemen on the land” [endnote 6] or similar litigants, 18 September, 2012 is a day that will shine in virtue. On that day, Mr. Justice J.D. Rooke, the Associate Chief Justice of the Alberta Court of Queen’s Bench, delivered a judgment in the matrimonial case of Meads v. Meads 2012 ABQB 571. Given that the judgment weighs in at a mammoth 736 paragraphs, I wonder if these litigants are perhaps more prevalent in wild rose country than they are in Ontario. Be that as it may, Justice Rooke’s comprehensive judgment on what he labels “Organized Pseudolegal Commercial Argument Litigants” (of various iterations), wonderfully frees me from having to address any more effort to the jurisdictional arguments raised by Mr. Duncan. As I have said, there is a lot of patent rubbish on the internet; if Mr. Duncan wishes to while away a few hours more productively on something that actually makes sense, I commend Justice Rooke’s judgment on CanLII.org to him.

[22] There is no merit to Mr. Duncan’s jurisdictional argument. Such arguments are a waste of the court’s time and resources, a selfish and/or unthinking act of disrespect to other litigants and deserving of no further attention, energy or comment.

Has The Crown Proved The Charges Beyond A Reasonable Doubt?

[23] With the distraction of the jurisdictional issue now safely off-stage, we now have the luxury of focusing on old-fashioned notions like the merits of the case. Indeed, even before Justice Rooke’s gift to the judiciary, when we broke at the end of the first day of the trial in July, at which point the Crown had closed its case, I suggested to the self-represented Mr. Duncan that he might want to use some of his internet skills to look at the actual issues related to the question of assault to resist arrest in the context of a Highway Traffic Act investigation, since it seemed to me that a defendant with counsel might be inclined to advance a non-suit motion in response to the evidence I had heard.

[24] When we returned to continue the trial, before calling on Mr. Duncan to announce if he was calling a defence, I asked the Crown to comment on whether or not there was a case to meet. I asked this because it seemed to me that, whatever evidence the state might theoretically have possessed, the evidence as articulated at trial, was seriously deficient. It also seemed to me that the case was based on an incomplete understanding of the Highway Traffic Act, i.e. that in the words of another, more ancient, Matthew, the Crown’s case was a house built upon sand. After hearing from the Crown, I dismissed the charge against Mr. Duncan with more detailed reasons to follow, these being those reasons.

[30] Near the beginning of his comments to me at the outset of this trial, Mr. Duncan proclaimed that he had no obligation to produce identification to the police officers. In that moment, before he continued down the Alice in Wonderland garden path of trusts and

jurisdiction and dollar amounts and contracts and natural persons and administrators, Mr. Duncan momentarily hit upon the concept that would ultimately lead to his acquittal, albeit not by the rather circuitous and, with all due respect, silly path he wanted to go down. Applying the rather more prosaic concepts of the elements of the offence and an analysis of “who did what to whom why”, the only conclusion reasonably open to me on the evidence at this trial was that the police and Crown failed entirely to articulate a lawful foundation for the attempt to arrest Mr. Duncan. The evidence before me failed to demonstrate that the purported arrest of Mr. Duncan was lawful. A citizen is entitled to resist an arrest that is unlawful. Thus, even assuming that I were to accept the police evidence of Mr. Duncan’s actions as making out the assault beyond a reasonable doubt, an issue that is not entirely free of controversy, a nonsuit and thus an acquittal is the only outcome that is lawfully open to me on the evidence before me.

[31] Mr. Duncan is entitled to his acquittal and none should begrudge him it. In assessing how much of the “freeman of the land” type of philosophy that he wishes to adopt in future, a philosophy that appears to focus to an unhealthy degree on freedom from societal obligations, he might, however, wish to contemplate some more productive reading on the internet, reading which emphasises the importance of responsibilities as much as society’s ongoing and sometimes exclusive fixation on rights. None of us is the centre of the universe, or, as best expressed by John Donne, “No man is an island entire of itself; every many is a piece of the continent, a part of the main.” Mr. Duncan did not strike me as a fool and individual acts seldom define people, but the red binder he offered to the officers and the “affidavit of truth” he offered to me in court were regrettable descents into foolishness and Mr. Duncan would be well-advised to be more discriminating on what parts of the internet he models himself upon in the future.

Endnotes:

[1] I should point out that Mr. Duncan preferred not to be called Mr. Duncan but rather Matthew. There was some mumbo-jumbo about the natural person and the administrator and that one of them might have been Mr. Duncan and one might have been Matthew and one, but not both, of them might have been the person speaking to me in court (while seated). However, when I read the “affidavit of truth” presented to me by Mr. Duncan, I noticed that it had been sworn by someone whose first name was clearly “Matthew” and whose second name looked very much like “Duncan” and certainly began with a “D” and a “u”. Since Mr. Duncan agreed that the affidavit had been sworn by him and accepted my proposition that there is no “D” and no “u” in the name Matthew, I continued to refer to him as Mr. Duncan through the proceedings.

[2] For readers under the age of thirty or so, the “typewriter” was a mechanical device used for creating documents that pre-dated the computer and lacked some of the computer’s more annoying char-

acteristics, in particular the computer’s facilitation of “cutting and pasting”, which is undoubtedly one of the four horsemen of the modern apocalypse and which has cost many trees their lives and many lawyers and judges their eyesight.

[3] “William Shakespeare” was a sixteenth century English poet and playwright of some skill. He is remarkable insofar as he and Joseph Conrad are among the very few English-language authors of particular merit who were not either Irish or Scottish.

[4] The “internet”, also known as the “world-wide web” is a bi-polar electronic Leviathan that has erupted on the world scene in the past two decades. In its benevolent manifestations, it has enormously increased and expedited access to useful information of all sorts, increased global awareness of myriad events, facilitated family and commercial communication across national boundaries in the blink of an eye and helped topple dictators; it is probably fair to say that its advent is of no less significance than the invention of the printing press. However, just as the printing press has been put to odious use from time to time, the internet has its own Jekyll and Hyde nature: it is a near certainty that future generations will look back at these decades, obsessed as we are with the twin behemoths of “reality” television and the “ooh, look at me, I must tell the world what I had for breakfast” narcissism of social media and at the billions of hours thus lost to a near psychotropic electronic escape from any useful pursuit and wonder if Aldous Huxley only got a few details wrong in Brave New World. For the purposes of this case, the relevance of the internet is its un-policed “garbage in/garbage out” potential and its freemarket-of-ideas potential to lure in otherwise pleasant and unsuspecting folk with all manner of absurdity and silliness.

[5] Lest anyone misunderstand me, this is by no means intended to compare Mr. Duncan to a monkey. As I have noted, Mr. Duncan seemed a decent fellow who expressed himself well (other than when rambling a bit too long about jurisdiction, as noted herein) and whose principal shortcomings appeared to be too much free time with internet access and too little discernment in whose example he followed. The reference to monkeys with typewriters is intended solely to point out that technological “advances” are sometimes used to such ends that one wonders if perhaps the Luddites didn’t have a point.

[6] I should note that Mr. Duncan said on the second day of the trial that he did not consider himself to be a freeman on the land, although his approach did seem to share a lot in common with theirs. Nothing hinges on the application of a particular label to Mr. Duncan’s litigation strategy. As is made clear in the Alberta Queen’s Bench decision of Meads v. Meads, 2012 ABQB 571, to which I refer later, remarkably similar obstructionist litigations strategies come to court with hugely divergent labels. With his whole life ahead of him, one can only hope that Mr. Duncan will not only eschew formal adherence to that line of thinking, but will forsake all of the odds and ends and bits and pieces that accompany it and similar silliness.

The Canadian Encyclopedia notes: “Hippie culture foregrounded the popularization of holistic health and wellness, mindfulness, and social justice, all of which went on to become cornerstones of popular culture in Canada in the 21st century.” It identifies Neil Young as being amount the Canadian musicians who “rose to prominence as countercultural icons.” Further, “[w]hile hippies interested in the so-called ‘back-to-the-land movement’ sought to create utopian communities in rural areas across Canada, the neighbourhoods of Kitsilano in Vancouver and Yorkville in Toronto were urban epicentres of the hippie movement in Canada.”

Neil Young is Toronto-born musician who also became a U.S. citizen. He has famously criticized Donald Trump for use of his music and more generally.

“San Francisco (Be Sure to Wear Flowers in Your Hair)”, which Wikipedia describes as a “generational anthem”, was written by John Phillips and sung by Scott McKenzie. It was released in 1967 and starts as follows: “If you’re going to San Francisco / Be sure to wear some flowers in your hair / If you’re going to San Francisco / You’re gonna meet some gentle people there”.

NPR reports that the Spanish expedition that first charted San Francisco Bay identified Alcatraz Island as “Isla de Alcatrazes” because it was said to be inhabited by many pelicans, with Alcatraz meaning pelican or diving bird in Spanish and Portuguese.

President Trump has expressed interest in reopening Alcatraz as a federal prison. William Marshall, the director of Federal Bureau of Prisons, said on Fox News: “We’ve got engineering teams out there now that are doing some assessments. I’m just really excited about the opportunity and possibilities.” He also noted: “When you think of Alcatraz, you think of Fenway Park, Wrigley Field, Lambeau Field, those types of facilities. You get that kind of feeling about Alcatraz when you think of those historical venues and so, yeah, we absolutely think we can get it done.”

Thought du mois:

Never doubt that a small group of thoughtful, committed individuals can change the world, indeed it’s the only thing that ever has.

—Margaret Meade, anthropologist (1901–1978)

CONTRIBUTORS

Robert Diab is a professor at the Thompson Rivers University Faculty of Law. He regularly writes about topics in law and technology as well as constitutional rights. He is a co-founder of the Canadian Journal of Comparative and Contemporary Law.

Thomas A. Falcone is an associate at Coal Harbour Law with a broad practice in commercial litigation and arbitration. Before becoming a lawyer, Thomas worked as a corporate immigration law consultant in Singapore and Malaysia.

Gerald Ghikas, K.C., is a nationally and internationally recognized commercial arbitrator with over 40 years of experience as both arbitrator and counsel in disputes across a wide range of industries.

Tyler Holte practises real estate law, corporate/commercial law and wills and estates law as a partner of Callison Holte Law Corporation in Fort St. John. He is a supervising lawyer for both Fort St. John Women’s Resource Society Poverty Law Advocate Program and the Fort Nelson Aboriginal Friendship Society Poverty Law Advocate Program.

Spencer Keene is a lawyer and writer from Vancouver. In his work as a legal content developer at People’s Law School, he creates resources to assist British Columbians in resolving their everyday legal problems. When he is not working to help narrow the access to justice gap in the province, he enjoys exploring the complexities of existence in his short fiction and poetry writing.

Allan McDonell, K.C., is not to be confused with the Scottish-Canadian fur trader and politician who joined the Montreal fur-trading firm of Forsyth Richardson and Company in 1799. This Allan McDonell was called to the bar in 1975, did a long stint (sometimes as managing partner) at what was Russell & DuMoulin, was appointed Queen’s Counsel in 1998 and is a former full-time executive director of B.C. Wild and later the Wildlands Project in Tucson, Arizona.

Jeremy Webber is a professor emeritus of law at the University of Victoria, where he writes extensively on legal theory, constitutional theory, Indigenous rights and federalism. He served as dean of the law school from 2013 to 2018 and held the Canada Research Chair in Law and Society from 2002 to 2014. He was appointed as an honorary professor at Eötvös Loránd University in Hungary in 2024.

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