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OFFICERS AND EXECUTIVES
LAW SOCIETY OF BRITISH COLUMBIA
Brook Greenberg, K.C. President
Thomas L. Spraggs
First Vice President
Michael F. Welsh, K.C.
Second Vice President
Gigi Chen-Kuo
Chief Executive Officer and Executive Director
BENCHERS
APPOINTED BENCHERS
Simran Bains
Paul A.H. Barnett
Sasha Hobbs
ELECTED BENCHERS
Aleem Bharmal, K.C.
Tanya Chamberlain
Nikki Charlton
Jennifer Chow, K.C.
Christina J. Cook
Cheryl S. D’Sa, K.C.
Jeevyn Dhaliwal, K.C.
Tim Delaney
Brian Dybwad
Brook Greenberg, K.C.
Katrina Harry, K.C.
Ravi Hira, K.C.
James A.S. Legh
Dr. Jan Lindsay
Michèle Ross
Natasha Tony
Benjamin Levine
Jaspreet Singh Malik
Marcia D. McNeil
Jay Michi
Georges Rivard
Gurminder Sandhu, K.C.
Thomas L. Spraggs
Barbara Stanley, K.C.
James Struthers
Michael F. Welsh, K.C.
Kevin B. Westell
Gaynor C. Yeung
Jonathan Yuen
BRITISH COLUMBIA BAR ASSOCIATIONS
ABBOTSFORD & DISTRICT
Kirsten Tonge, President
CAMPBELL RIVER
Ryan A. Krasman, President
CHILLIWACK & DISTRICT
Nicholas Cooper, President
COMOX VALLEY
Michael McCubbin, President
Shannon Aldinger, President
COWICHAN VALLEY
Jeff Drozdiak, President
FRASER VALLEY
Michael Jones, President
KAMLOOPS
Jeanine Ball, President
KELOWNA
Tom Fellhauer, K.C., President
KOOTENAY
Dana Romanick, President
NANAIMO CITY
Kristin Rongve, President
NANAIMO COUNTY
Lisa M. Low, President
NEW WESTMINSTER
Mylene de Guzman, President
NORTH FRASER
Lyle Perry, President
NORTH SHORE
Adam Soliman, President
PENTICTON
Ryu Okayama, President
CANADIAN BAR ASSOCIATION
BRITISH COLUMBIA BRANCH
BOARD OF DIRECTORS
Lee Nevens
President
Mylene de Guzman
First Vice President
Patricia Blair
Second Vice President
Dan Moseley
Finance & Audit Committee Chair
Dan Melnick
Young Lawyers Representative
Dimple Kainth
Equity, Diversity and Inclusion Representative
Adam Munnings
Aboriginal Lawyers Forum Representative
Connor Bildfell
Director at Large
Sarah Klinger
Director at Large
Randolph W. Robinson
Director at Large
Nathan Bauder
Director at Large
ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL
PORT ALBERNI
Christina Proteau, President
PRINCE GEORGE
Marie Louise Ahrens, President
PRINCE RUPERT
Bryan Crampton, President
QUESNEL
Karen Surcess, President
SALMON ARM
Dennis Zachernuk, President
SOUTH CARIBOO COUNTY
Angela Amman, President
SURREY
Peter Buxton, K.C., President
VANCOUVER
Executive
Sean Gallagher President
Joey Levesque Vice President
Spencer Malthouse
Secretary Treasurer
Heather Doi Past President
VERNON
Chelsea Kidd, President
VICTORIA
Sofia Bakken, President
CARIBOO
Coral D. Atchison
Nathan R. Bauder
Jon Maurice Duncan
KOOTENAY
Jamie Lalonde
Christopher W. Trudeau
NANAIMO
Patricia D. Blair
Phil Dwyer, C.M.
Benjamin D. Kingstone
PRINCE RUPERT
Emily Beggs
VANCOUVER
Connor Bildfell
Erica Chow
Joseph G. Cuenca
Nicole L. Garton
Rupinder Gosal
Diane Maureen Gradley
Jennifer Khor
Bruce McIvor
Leena (Ronak) Yousefi
VICTORIA
J. Berry Hykin
Cherolyn Knapp
Anwarullah Mujtabah
WESTMINSTER
Rebecca Lee Darnell
Manpreet K. Mand
Natasha S. Nair
Matthew A.G. Somers
Gurjit Kaur Tiwana
YALE
Mark Brade
Laurel D. Hogg
Aachal N. Soll
CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.)
Cecilia Barnes, President
FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.)
Jenny Huang, President
INDIGENOUS BAR ASSOCIATION (B.C.)
Michael McDonald, President
SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA
Hardeep S. Gill, President
ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE LA COLOMBIE-BRITANNIQUE (AJEFCB)
Sandra Mandanici, President
ADVOCATE
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VOL. 83 PART 2 MARCH 2025
Entre Nous
On the Front Cover: Brook Greenberg, K.C. By the Honourable Justice Lisa Hamilton and Andrew Nathanson, K.C.
The Reasonableness Standard of Review on Appeals on Questions of Law Under Section 59 of the Arbitration Act
By Gerald W. Ghikas, K.C.
The George F. Curtis Building – Faculty of Law
By Bruce Woolley, K.C.
Opinion, Advice or Direction and Momentous Decisions: Where Are We Now?
By Joel Nitikman, K.C.
The Inns of Court Program By
J. Kenneth McEwan, K.C.
ON THE FRONT COVER
Read about the extraordinary Brook Greenberg, K.C., the Law Society’s new president, as well as Yoda, Han Solo, Joanie, Billy and others, starting on page 177 of this issue.
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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Left to Right: Kiu Ghanavizchian, Andrew Mackenzie, Gary Mynett, Vern Blair, Rob Mackay, Farida Sukhia
ENTRE NOUS
Curiosity: an eager wish to learn or know about something.
—Cambridge Dictionary
SOME MUSINGS ON CURIOSITY
Curiosity may not be among the top character traits associated with being a lawyer, but we expect it is a trait common to more than a few readers.
Maybe we did not know this would be the case when we headed off for law school, but for various of us one of the attractive features of being a lawyer has turned out to be the ever-present opportunity to learn about something new. The negotiating, drafting or advocacy skills we have may be applied to a range of factual settings, which makes it possible for us to take on a client who comes in with a prospective transaction or a dispute anchored in an industry that was previously unfamiliar to us, or—if the client is particularly innovative—an industry that may be new to everyone but the client. After a few weeks of absorbing the subject matter, we might even be able to show off some expertise, before shifting our focus to another file that is played out against a different factual backdrop.
The fact we already like learning about new things also makes it less of a chore (or not a chore at all) to satisfy our obligation, as competent lawyers, to investigate facts as a foundation for advising our clients.1 Because we cannot necessarily rely on our clients to present us, unasked, with the facts that let us formulate and provide our advice, we may need to probe for more information.
In some cases, curiosity may be what tips the balance in favour of asking a question even if, by asking the question, we admit to not being expert in the field already (an admission that those of us with bigger egos might oth-
erwise be reticent to make). Asking a client whose days are filled with acronyms and other industry-specific shorthand to unpack what they are telling us can be helpful not simply to the duly informed lawyer, but also to the client’s understanding of the underlying facts. The process of formulating an explanation may well cause a client to turn their minds to matters they otherwise invoke by rote without thinking them through.
Of course, curious lawyers do not get to engage in a free-for-all by virtue of their professional status. To the contrary, in some contexts, being a lawyer comes with legal and practical restrictions on satisfying the curiosity we have. Some limitations are strategic: during cross-examination, counsel who indulges their desire to ask “But why ?” when dealing with an unfriendly witness could provide an opening for an answer that harms the client. Some limitations on lawyers are matters of professional ethics. We cannot look for answers in documents that we have reasonable grounds to believe belong to an opposing party and were not intended for us to see.2 Criminal defence counsel might not necessarily wish to extract information from an accused client that will impede the pursuit of certain defences.
For those lawyers whose curiosity stems partly from the desire to share the information they learn (which is a further subset within the curious lawyer category), professional restrictions on the use of information that comes to them in their capacity as counsel may also dampen their initiative to seek that restricted information out.
Some limitations on lawyers’ ability to satisfy their curiosity are practical ones, flowing from the fact clients (or client contacts) and witnesses are human. Some witnesses are forgetful or secretive and cannot or will not reconstruct for us what we would like to know more about. Some clients take umbrage at being pressed for information or are insufficiently organized or attentive to questions to provide answers (sigh), even if they genuinely wished to do so.
All this said, there are ways to unleash and satisfy our curiosity that more than make up for it being thwarted in the contexts described above.
Giving some runway to our curiosity might well take off the notoriously cool edge one finds at Vancouver receptions. Attending a reception populated by individuals who already know you and are willing to slip back into easy conversation (a privilege that the Advocate ’s aging editorial staff increasingly enjoys) is a vastly different experience from attending a reception where fellow guests are unknown to you and you are unknown to them. Trying to catch someone’s eye at such events can be difficult, even if they too are on their own—sometimes trying to find someone with whom to engage in discussion feels like stalking prey. If they allowed themselves
to be curious about you, and vice versa, conversations might spark and flow much more readily.
Just think, as well, about the merits of being curious about our colleagues’ practices within our respective firms. Some of our colleagues have a puzzling dearth of knowledge about what exactly we do (or do not do) and have clearly never read our website bios, however nicely put together. It is not unknown for a file to be referred out of a firm on the mistaken impression that no one at the firm practises in that area of law when in fact they do. Our managing partners and marketing departments would likely be thrilled should this ignorance or indifference be corrected.
Strong mentoring relationships can be fed by the mentor being curious about their mentee and taking the time to ask questions. The mentee can similarly ask questions of the mentor. Various of us are guilty—after hiring students through the interview process described in the last Entre Nous, for example—of then not asking our new hires how they are doing, thereby limiting our ability to commiserate or provide input.
Curiosity may contribute helpfully to law reform. Many of us have been challenged by non-lawyers to explain aspects of the law that we know little about—e.g., for the civil litigators among us, bail, and in particular how it is that a given accused was out on bail when committing another similar (or even worse) offence. Many of us sheepishly admit we cannot answer, probably causing those who ask us the question to doubt whether we are truly qualified as lawyers at all. If instead we engaged curiously with vexing, lawrelated social issues, we might be able to apply our legal skills to enriching the discussion and contributing ideas that might lead to solutions.
Many old-school journalists were, no doubt, attracted to their field because they were curious about the world around them. Traditionally, their curiosity led them to find interesting and important stories to cover, and to learn the who, what, when, where, how and why about those stories. Now the vastly reduced resources of newsrooms may limit the journalists who remain to covering topics that are essentially pre-set, and to publishing stories that simply repeat what has been said about those same topics by others.
Some of us generate social media content in the same way as poorly staffed newsrooms. Content is generated not as the endpoint of a process in which the author has satisfied their curiosity, but simply for the sake of getting attention by posting something, no matter how quickly or superficially. Although getting attention may be a worthwhile objective from the perspective of our firm’s marketing departments or our egos, what about catering to curiosity for a change?
We at the Advocate invite you to pick a topic about which you are curious and—as long as it has a legal connection—write a piece about it for an upcoming issue of this magazine. The Advocate thrives on curiosity. As our policy is not to accept submissions (even if framed as articles) from counsel on a court proceeding in which they represent or have represented a client, all authors must to some extent go beside or beyond the subject matter of their day-to-day files, even if often within the same general practice area.
We encourage articles of up to 2,500 words, although regular readers will know this is not an absolute cap. This general length allows authors, and their readers, to delve into the details and nuances of an exciting topic, while being able to move on—much as they would from one file to another—to the next task at hand once the piece is written or read.
By now some of you may be wondering why we may be haranguing you about curiosity if, as the saying goes, “curiosity killed the cat”. Well, in the immortal words of the American litigator whose face was obscured by a cat filter during a COVID-19 virtual court session, we are not cats.
In addition, for those of you curious enough to have looked for the explanation behind the “curiosity killed the cat” saying, it turns out that this expression replaced an earlier-established one in which “care”, not “curiosity”, was identified as being responsible for the cat’s demise. Why exactly the new iteration was adopted is not clear: perhaps someone uttered the words to fend off a pending investigation into their business dealings (a nice bookend to “none of your business”), and was delighted to see the phrase take off.
Even if the expression were applicable at all or to humans, it is notable that the “curiosity killed the cat” expression has a longer form that ends with “but satisfaction brought it [the cat] back”. We doubt curiosity will have a negative impact—though beware of getting into topics about which you would actually prefer not to know more. Subject to that, any negative impact would likely be more than offset by the satisfaction of learning about something new and, if this prompts an article in the Advocate, sharing that knowledge with our curious readers.
ENDNOTES
1. Rule 3.1-1 of the Code of Professional Conduct for British Columbia defines a “competent lawyer” as one who “has and applies the relevant knowledge, skills and attributes”, which may include “investigating facts”.
2. Code of Professional Conduct for British Columbia, Rule 7.2-10.
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“Nootka Island III” by Sandra Garris, Acrylic on Canvas, 40'' x 30'', 2025
ON THE FRONT COVER
BROOK GREENBERG, K.C.
By the Honourable Justice Lisa Hamilton and Andrew Nathanson, K.C.
A LONG TIME AGO IN A GALAXY FAR, FAR AWAY…
The legal profession is at peace under the rule of the Law Society of British Columbia and its president for 2025. A guardian of justice, Brook Greenberg, K.C.’s deep passion and dedication in the area of mental health has resulted in the Law Society launching an alternative discipline process, representing all things good in professional regulation. But just as this positive, groundbreaking program expands and garners national and international accolades, a new threat arises to the Law Society and lawyer self-regulation.
Brook is an exceptionally strong leader and ready for this challenge. However, he has one weakness:1 he hates being the centre of attention. Compliments make him squirm, so he is mortified to be on the cover of the Advocate and the focus of this article. He agrees to proceed for three reasons: (1) his beloved goldens, Joanie and Billy, are on the cover with him; (2) the Law Society’s work on mental health is highlighted; and (3) this article pays homage to some of Brook’s favourite films and television shows.
“Much to learn you still have, my young padawan” – Yoda, Attack of the Clones
Brook’s parents, Jeanette and David Greenberg, are teachers who met in high school in Palo Alto, California. They both obtained master’s degrees in early childhood education in San Francisco, before moving to Prince George in 1970 where they could get positions in the same school district. Prince George was progressive for the time, and David became one of the first male kindergarten teachers in the province. Brook was born and raised in Prince George. His parents built and still live in the same home where Brook and his younger brother Matthew grew up. They always had dogs growing up,
particularly golden retrievers, which kindled Brook’s love of the breed, and of animals, generally.
Even as a very young child, Brook was attracted to science and data. Prior to kindergarten, Brook determined that logically the tooth fairy must be made up. Later when Brook was in grade 1, he lost a tooth at school and his teacher put the tooth in one of the customary little brown envelopes she kept in her desk and had Brook write a note to the tooth fairy. After school, Brook showed his parents the envelope and note. Puzzled, they asked Brook why he would write to the tooth fairy when he did not believe she existed. Brook answered, “Well I know and you know, but I don’t know if Ms. Benson knows.”
“You know, the very fact that you oppose this makes me think that I am on to something” – Jerry Seinfeld, Seinfeld
Brook was always extremely bright and precocious with an innate sense of right and wrong. He was also not shy about sharing his opinions. When family members disagreed, young Brook would debate until they were rightfully persuaded. Over time, Brook’s parents became exhausted and implemented a rule requiring Brook to pay them 25 cents per argument. After a couple days of peace, Brook suddenly ran straight into the kitchen, plunked a quarter on the counter and launched into submissions. Brook’s family was thrilled when Brook went into law and got paid to argue instead of the other way around.
“Do or do not. There is no try” – Yoda, The Empire Strikes Back
Brook was always skilled and highly competitive at a variety of sports. He excelled at skiing (both cross country and downhill) and speed-skating. He would practise cross country skiing around the golf course even in minus 35 weather—until his toes suffered frostbite. In high school, Brook was one of the fastest speed-skaters in the province and competed at the national level. Brook is also a devoted hockey fan who has had Canucks seasons tickets for many years. He will never give up on the Canucks—but if they do not make the playoffs in a particular year, he cheers on the Las Vegas Golden Knights.
During law school, Brook competed for Team Canada in ultimate frisbee. The competition level was high but the budget was low. Five team members had to stay in one hotel room, taking turns sleeping on the floor in a onestar hotel. On one occasion Brook got himself locked in a bathroom at a laundromat. The team broke the door down to rescue him in time to get to the tournament and win the world championship. Brook also convinced the entire team to donate blood with him after their practices. Brook gives blood without fail every 56 days and is currently at 176 whole blood donations.
“I move for A Bad Court Thingy” – Lionel Hutz, The Simpsons
As a Raiders of the Lost Ark fan, naturally Brook considered becoming a history professor. He attended Carleton for his undergrad in history but then decided to apply to law school at UBC. Brook excelled at law school and received the gold medal as UBC Law’s top student. Brook planned to be a criminal lawyer but ultimately accepted a position at Russell & DuMoulin (now Fasken) and has stayed there ever since.
At Fasken, Brook quickly established himself as a go-to junior for the likes of Bill Berardino, K.C., Geoff Cowper, K.C., and Chuck Willms. When Michael Goldie retired from the Court of Appeal and rejoined the firm, he invited Brook to lunch one Friday at the Vancouver Club. The other guests were Chief Justice Allan McEachern, the Honourable Lloyd McKenzie, Q.C., Richard Peck, K.C., and Michael Tammen. Brook’s initial reaction was to look for a kids’ table. But quality recognizes quality.
“Never tell me the odds!” – Han Solo, The Empire Strikes Back
Brook developed a varied litigation practice. He is known for his expertise in commercial litigation, banking and forestry litigation and complex construction disputes. He has been a trusted advisor for some of the province’s largest concerns. Brook was co-counsel for the Bank of Nova Scotia in B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2 then deftly stickhandled the years of litigation that followed. Another client repeatedly dispatched Brook to Greece to assist with a massive claim against the Greek government. After a half dozen quick turnaround trips to Greece in one year, Brook had not only skillfully helped negotiate a resolution, but had also racked up a lifetime’s worth of airmiles. Brook wore an Apple AirTag during that case so Fasken could find him in Greece or at home. More recently, Brook, as part of a team from Fasken, achieved a string of successful results for Imperial Metals in litigation arising from the 2014 failure of the tailings dam at the Mount Polley Mine.
As an advocate, Brook’s trademark qualities are fairness and humility. His cross-examinations are unfailingly polite and, at times, downright amiable. Uncharacteristically of leading counsel, Brook leaves his ego at the courtroom door. He truly understands that civility is the most effective form of advocacy.
“I’ve seen things that you people wouldn’t believe” – Roy Batty, Bladerunner
Deploying that same attraction to science and data that was evident from a young age, Brook excels at cross-examining experts. They are often unnerved at how much technical knowledge Brook has amassed in their field of study. Could this lawyer possibly have Ph.D. degrees in urban land
economics and civil engineering? And woe to the expert who is selective with their data, or who has excluded or obscured facts that are material but unfavourable to their opinion. Brook will be there to point this out.
In one case, Brook was cross-examining an expert on timber harvesting rates. The expert had omitted a highly relevant cost. He explained this by saying that “his assistant” had put his report together and must have forgotten to include that cost. Brook’s co-counsel, Tariq Ahmed, describes what followed as one of the most awkward—for the witness—cross-examinations he has ever observed. Brook continued to ask about other omitted costs in this vein: “Q. So when your assistant prepared this report, did they also forget to include this cost? A: Yes, it looks like it.” This continued for many, many questions. The witness did not realize he was undermining his opinion with each answer. Brook kept a straight face through it all.
“I call the big one Bitey” – Homer Simpson, The Simpsons
Brook has a keen sense of humour. He is by turns playful and sarcastic. If he were not a lawyer, Brook almost certainly would have been a writer for The Onion or AV Club . First vice president of the Law Society Thomas Spraggs calls Brook’s sense of humour “wicked but never meanspirited”.
Brook is also a notorious prankster. In the days before misuse of computers was as seriously regarded as it is now, Brook, masquerading as another partner, sent the Fasken articling students this time-sensitive directive on the Friday before Labour Day: “I forgot to make a ferry reservation for the long weekend. I need one of you (if you’re tall, two if you’re not) to go to Horseshoe Bay right now and lay down in a space to save it for me. I should be down there by 5:15 or so.”
At Fasken, Brook has developed a reputation as a lovable curmudgeon. One former colleague describes him as “like a jawbreaker candy—tough on the outside, but with a surprisingly soft and sweet interior”. Brook avoids internal meetings without a well-defined purpose and agenda. He derides these as “chat club”. His favourite traditions are, however, literal chat clubs: Friday morning Muffin Break and Friday afternoon “Brown File”, named for legendary R&D leader Doug McK. Brown, Q.C. Brook has strict rules against juniors paying for anything, and work discussions being raised at lunch. The former rule is unalterable, but the latter he generously waives for those in need of his counsel.
Alongside his busy large firm practice, Brook pursued outside interests that reflect his strong commitment to equality and access to justice. Brook served as a volunteer supervising lawyer, board member and all-purpose supporter of the UBC Law Students’ Legal Advice Program (“LSLAP”), maintaining his participation in this program that he loves since 1993. He was a
director and later chair of MOSAIC, one of Canada’s largest settlement and employment services organizations that supports immigrants and refugees. For 16 years, Brook was an adjunct professor, teaching civil procedure at UBC. One of Brook’s former collaborators, Alex Mitretodis, describes how, every semester, just before the pleadings assignment was due, Brook would stand at the front of the class with a mischievous grin. He would project a picture of his golden retriever Billy eating one of the pleadings assignments from the previous year and say, “Alright, folks, before you stress too much, let me show you what happened to last year’s assignments.” The class would erupt in laughter. Alex says, “Brook’s antics were more than just a way to lighten the mood. He genuinely cared about the mental health of his students. He would often remind them that it was okay to ask for help when needed. Brook’s dedication to mental health advocacy in the profession was not just talk; it was woven into the very fabric of his teaching and mentoring.”
“You should have bargained, Jabba” – Luke
Skywalker, Return of the Jedi
More recently, Brook has become a sought-after mediator and commercial arbitrator. His analytical nature, preference for problem solving over winning (somewhat surprising given his competitiveness), and his empathy and optimism make him well suited for these roles.
Brook admires and has frequently appeared as counsel before Murray Clemens, K.C., and John Logan, K.C., in mediations and arbitrations. Confirming once again that quality recognizes quality, John tells this story: “When acting as mediator, I often ask about counsel who will be appearing. When I asked about Brook, more than one lawyer advised me that he would be the smartest person in all the rooms, and that to Brook, law was a noble profession and not just a business. I was able to confirm these things at the mediation. Brook’s client of modest means was facing an opponent with a bad case but deep pockets. The opponent was suggesting that Brook’s client should settle to avoid what would be very steep defence costs. Brook made it clear to everyone that he would win the case, and that the costs threat was so odious that he would not be charging his client. The case settled on terms very favourable to Brook’s client, and I went away more proud than ever to be a lawyer.”
Those discerning enough to select Brook to help them resolve their disputes, or if that is not possible, to arbitrate them, will have chosen wisely.
“Those are my everyday balloons” – Kramer, Seinfeld
Brook met Pamela when she articled at Fasken and he was a first-year associate. While Brook counts himself fortunate to have been able to practise his whole career at Fasken, he emphasizes that meeting Pamela is by far the
most important and beneficial aspect of his time at the firm. They have been married for 23 years and live in North Vancouver. Pamela is a wellknown powerhouse and extraordinary mentor to young lawyers in her own right. Pamela admires Brook’s intelligence, humour and deep convictions. As a husband, Brook is extremely thoughtful. No matter how busy he is, he buys flowers for Pamela every week. Brook and Pamela enjoy time together watching hockey, travelling (definitely no dodgy hotels though) and hanging out with their beloved dogs, Joanie and Billy. When someone new meets Brook and asks if he has any children, he commonly responds, “Yes, two goldens.” As Brook says, he and Pamela work hard to ensure the dogs have a good life.
“I’m Gonna Fix This Place” – Carmy, The Bear Brook was elected as a bencher of the Law Society in 2015 and was re-elected three times since. He was elected among the benchers and licensees to serve as president in 2025. He is a well-respected leader among the benchers and the staff. He is known as a heavy lifter. As Brook would say, he likes to “gets shit done”. Bencher Brian Dybwad notes Brook has “zero ego”, and “removes all stuffiness” from a room. Justice Lindsay LeBlanc, who was second vice president of the Law Society before she was appointed to the B.C. Supreme Court, says, “Brook is like a lighthouse, guiding everyone where they need to be. He is an Indigenous ally and a true friend.” Bencher Kevin Westell describes Brook as “annoyingly uncorruptible” and remarks “the only way to get under his skin is to give him a compliment”.
“You must unlearn what you have learned” – Yoda, The Empire Strikes Back Brook became a bencher because he was concerned about the mental health of the profession. He knew that statistics showed that mental health issues, substance use and suicide rates within the legal profession were worse than in any other profession. He had also worked closely with law students as a professor, supervisor at the LSLAP clinic and a pro bono lawyer and was deeply concerned that certain credentials and discipline processes at the Law Society were resulting in unintended consequences such as discouraging law students and lawyers from seeking treatment for mental health and substance issues.
Brook persuaded the benchers to create a mental health task force, the first of its kind in Canada. He chaired the task force, which produced several reports containing recommendations to improve the mental health of the legal profession and legal regulation. Recommendations included removing stigmatizing language from all Law Society rules, processes and publications and committing to data and science-driven policy regarding mental
health in the Law Society’s work. Another recommendation was to create an alternative discipline process to provide another avenue to address lawyers who had breached the Law Society Rules and had a mental health or substance use issue. By all measures, the alternative discipline process is performing spectacularly well.
“Giddy Up” – Kramer, Seinfeld Brook takes on the role of president of the Law Society in challenging times in the context of the B.C. government’s legislative attempt to do away with the Law Society’s regulation of lawyers and replace it with the government’s own version of a single legal regulator. However, Brook is just the right leader. The challenges facing the Law Society are the very reason he decided to stay on in this role.
Erin Kleissinger, K.C., the past president of the Federation of Law Societies of Canada for 2025, says this of Brook: “You can rely on him to do the heavy lifting on the committees he serves. When Brook speaks, people listen. His days have more than 24 hours. He is passionate about mental health and has brought a mental health lens to all of the Federation’s work. He is equally passionate about legal regulation and is ready for the fight against the B.C. government’s move to end self-regulation. In my view, he should be on the Canadian equivalent of Mt. Rushmore for his leadership— put his visage on the Rocky Mountains.” Brook’s response, undoubtedly, would be, “How about sculptures of Joanie and Billy instead?” Brook, may the Force be with you, always.
ENDNOTES
1. One interviewee, younger brother Mathew Greenberg (a “double threat” with a history degree and a blackbelt in carpentry), noted a second weakness, namely “Brook is beyond terrible with tools”. How-
ever, verification of this information is beyond the scope of this article.
2. 2009 SCC 15.
“Connections” by Soizick Meister, Acrylic on Canvas, 36'' x 30'', 2025
Available at Kurbatoff Gallery, 2435 Granville St., Vancouver
Visit the website: kurbatoffgallery.com
THE REASONABLENESS STANDARD OF REVIEW ON APPEALS ON QUESTIONS OF LAW UNDER SECTION 59 OF THE ARBITRATION ACT
By Gerald W. Ghikas, K.C.
Under s. 59 of British Columbia’s Arbitration Act, 1 with leave or by consent, a party to an arbitration may appeal on a question of law arising out of an arbitral award.2 In addition to the requirement that the question must arise out of the award, the question of law must be “extricable” from all questions of fact.3 In British Columbia, no appeal to the courts lies from an arbitral award on a question of fact or mixed fact and law, even by consent.
There is currently a debate about whether appeals from arbitral awards on questions of law should continue to be decided applying a reasonableness standard of review, or whether they should be decided applying a correctness standard of review. I have written elsewhere why, in my opinion, the reasonableness standard should continue to apply.4 While the debate on this subject continues, British Columbia courts often have found on applications for leave to appeal and on appeals that the outcome is the same regardless of which standard applies.5 This conclusion is surprising. The judgments seldom include a fulsome stand-alone analysis applying the reasonableness standard.
In addition to the intellectual challenge of deciding appeals by simultaneously applying two different standards of review, the present situation suggests uncertainty about how a reasonableness standard of review is to be applied when analyzing an arbitral decision on an extricable question of law. Is it possible for an arbitral tribunal’s opinion concerning an extricable question of law to be “reasonable” even if it is not “correct”?
The purpose of this article is to suggest 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 the Arbitration Act. I also suggest terminology that might be used by counsel and the courts to reflect differences between the correctness and reasonableness standards of review.
THE DEBATE ABOUT THE STANDARD OF REVIEW
In Sattva Capital Corp. v. Creston Moly Corp. (“Sattva”)6 and in Teal Cedar Products Ltd. v. British Columbia (“Teal Cedar”), 7 the Supreme Court of Canada held that statutory “appeals” from arbitral awards on questions of law should be decided applying a reasonableness standard.8 In Canada (Minister of Citizenship and Immigration) v. Vavilov (“Vavilov”), 9 the Supreme Court of Canada held, primarily based on a “presumption of consistent expression”, that the use of the word “appeal” in a regulatory statute is presumed to mandate the use of the appellate correctness standard in statutory “appeals” from decisions of administrative tribunals on questions of law.10 In Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District (“Wastech”), 11 despite a vigorous minority judgment urging it to find that “Vavilov has displaced the reasoning in Sattva and Teal Cedar”,12 the majority of the court left for another day “consideration of the effect, if any, of Vavilov on the standard of review principles articulated in Sattva and Teal Cedar.”13 The Wastech majority said:
[45] This Court has indeed held that the standard of review applicable in appeals under s. 31 of the Arbitration Act is reasonableness, unless the question is one that would attract the correctness standard, such as constitutional questions or those questions of law that are of central importance to the legal system as a whole and outside the adjudicator’s expertise (Sattva, at paras. 1026; Teal Cedar, at paras. 7476). I am mindful, however, that this Court’s judgment in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, which was released shortly after this appeal was heard, set out a revised framework for determining the standard of review a court should apply when reviewing the merits of an administrative decision. I note that Vavilov does not advert either to Teal Cedar or Sattva, decisions which emphasize that deference serves the particular objectives of commercial arbitration (see Sattva, at para. 104; Teal Cedar, at paras. 8183).14
In my opinion, British Columbia’s Arbitration Act should continue to be interpreted as mandating the reasonableness standard of review for appeals from arbitral awards, at least when leave is granted (as is usually the case) on the grounds set out in s. 59(4)(a).15 In summary of what I have written elsewhere,16 I contend, first, that because of the differences between the purposes and objects of regulatory and arbitration statutes, and the significant contextual differences between statutorily authorized administrative decision-making and contractually authorized arbitral decision-making, it is not appropriate to extrapolate the court’s decision in Vavilov (that the correctness standard applies on statutory “appeals”) across the conceptual and jurisprudential space that separates the regulatory and arbitral spheres. Second, and in any event, the unique language of British Columbia’s Arbitration
Act mandates the use of a reasonableness standard of review on statutory appeals under s. 59(4)(a). Any presumption that the use of the word “appeal” mandates a correctness standard is rebutted when one interprets s. 59(4)(a) applying the “modern approach” to statutory interpretation that was endorsed in Vavilov
The British Columbia courts, while acknowledging the pending debate about which standard applies, have deferred deciding the matter. In this article I do not repeat all of the arguments and counter-arguments concerning whether the reasonableness standard applies. My focus is on how the reasonableness standard can, as practical matter, be applied to assess an arbitral tribunal’s decision on an extricable question of law.
AN EXTRICABLE QUESTION OF LAW ARISING OUT OF THE AWARD
The B.C. Court of Appeal has recognized that what is now s. 59(4) of the Arbitration Act reflects “a policy decision by the Legislature to limit the jurisdiction of appellate review of commercial arbitration awards to extricable questions of law”.17 The result is that “only a very small window for appellate review of arbitral decisions remains”.18 In MSI Methylation Sciences, Inc. v. Quark Venture Inc 19 (“MSI”), Hunter J.A. wrote:
[61] The classic distinction between questions of law, questions of fact and questions of mixed fact and law was set out by Justice Iacobucci for the Court in Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748:
[35] … questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. … I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult.
[62] The difficult distinction between questions of law and questions of mixed fact and law has particular importance in the context of arbitral review in British Columbia because it goes beyond the question of standard of review to the very jurisdiction of the court to embark on the review process.
An award may expressly state the arbitral tribunal’s opinion on the legal test that applies. If it does not, the legal test applied by the tribunal may be implicit in the tribunal’s application of the test to the facts. While review of questions of mixed fact and law is prohibited, in such cases it may be possible to “extricate” the arbitral tribunal’s opinion concerning the correct legal test from its findings of mixed fact and law.20 Whether express or implicit, the question of law arising out of the award is “what is the correct legal test”.
In MSI, Hunter J.A. emphasized that caution must be exercised when seeking to extricate the tribunal’s answer to the question of law from findings of mixed fact and law. He said: If the asserted question of law is implicit in the award, in the sense that it must be extricated from the application of the law to the facts, care must be taken to distinguish between an argument that a legal test has been altered in the course of its application (a question of law) and an argument that application of the legal test should have resulted in a different outcome (a question of mixed fact and law).21
Justice Hunter offered guidance for distinguishing between questions of law and questions of mixed fact and law, based on statements made in several non-arbitration cases22 and the Court of Appeal’s earlier decision in Richmont. 23 He said:
One means of determining whether the challenged proposition is a question of law or part of a question of mixed fact and law is to consider the level of generality of the question. If the answer to the proposed question can be expected to have precedential value beyond the parties to the particular dispute, the question is more likely to be characterized as a question of law. On the other hand, if the answer to the proposed question is so tied to the particular circumstances of the parties to the arbitration that its resolution is unlikely to be useful for other litigants, the question will likely be considered a question of mixed fact and law. I would add to this that when the “question” is stated as a ground of appeal that is integrally tied to the facts of the case, it will more likely be characterized as a question of mixed fact and law, the answer to which cannot be of general application because of the integration of the particular facts of the case to the question. The more the question can be abstracted from the particular facts to a question of principle, the more likely it is that the challenged proposition will be characterized as a question of law with potential precedential value.24
It is not clear that the “precedential value” test for extricating legal questions will be apposite in the vast majority of appeals under the Arbitration Act. The cited non-arbitration cases, involving the interpretation of standard form contracts, were cases in which trial court judgments were subject to correctness review. The underlying court decision was public and would have precedential value beyond the parties to the particular dispute. There was arguably precedential value in deeming the interpretation of the standard form contract to be a “question of law” for the purposes of an appeal, to ensure that the interpretation of the standard form contract was correct. Arbitral awards have no precedential value, except as between the parties. There is no need to deem an arbitral tribunal’s contract interpretation to be an extricable question of law to ensure that an incorrect precedent is not established. In addition, if one accepts that arbitral awards are to be reviewed applying a reasonableness standard, then court decisions on
appeals about, for example, the interpretation of a standard form contract, will not decide the “correct” interpretation of the contract.25 They will only decide whether the arbitral tribunal’s decision was unreasonable.
In addition to being extricable, for leave to be granted the question of law must arise out of the award.26 A question of law that was not argued and not decided by the award, does not meet this requirement. Regardless of the standard of review, the courts should not entertain arguments or references to legal authorities that could have been, but were not, presented to the arbitral tribunal and which the tribunal itself did not raise in the award. The jurisdiction of arbitral tribunals is limited to deciding the dispute presented to them by the parties. Generally, experienced arbitrators do not undertake independent research, but rely solely on the parties to identify the relevant statutory and case law.27 Arbitrators are not subject to the court’s public policy-based concerns about ensuring the orderly and consistent evolution of the law. The arbitrator’s mandate is to resolve the dispute presented to them for resolution. The parties define the contours of that dispute. Their obligation is to bring forward their entire case before the arbitral tribunal. The arbitration is not a preliminary skirmish during which alternative theories or authorities can be held in reserve.
Sometimes the parties to an arbitration agree on the relevant legal test. Arbitral tribunals should, in such cases, state clearly in the award the legal test to which the parties have agreed. In such cases, as the legal test is not in dispute, the award does not determine the legal test, but merely applies it.28 The question of law does not arise out of the award. One possible exception would be if the arbitral tribunal, while purporting to apply a legal test agreed by the parties, actually alters the test while applying it to the facts. Leave to appeal might then be granted if it is arguable that the legal test that is extricated from the tribunal’s mixed findings of fact and law is not in accordance with the agreed legal test.
Having identified or, if necessary, extricated from the award, the arbitral tribunal’s answer to the question of law, that answer must be reviewed by the appellate court applying the appropriate standard of review.
THE DIFFERENCE BETWEEN THE CORRECTNESS AND REASONABLENESS STANDARDS
If the correctness standard applies on an appeal from an arbitral award, the outcome of the appeal depends on whether the court agrees with the arbitral tribunal’s opinion concerning the answer to the question of law. The opinion of the appellate court (or a majority of its members) about the correct answer to the question of law trumps any contrary opinion of the arbitral tribunal.29
According to Vavilov, if the reasonableness standard applies, the outcome of the appeal depends on whether there is a “failure of rationality internal to the reasoning process” in relation to the tribunal’s decision on the question of law, or whether the decision is “in some respect untenable in light of the relevant factual and legal constraints that bear on it”.30 What matters is whether the arbitral tribunal’s decision was reasonable, meaning that the tribunal arrived at a tenable conclusion through a rational analytical process. A rational reasoning process is one that has an “internally coherent and rational chain of analysis”.31 A decision is not tenable if it cannot be “justified in relation to the facts and law that constrain the decision maker”.32
The reasonableness standard sets a high bar for an appellant to overcome. As stated in Vavilov, the reasonable standard applies where, as matter of policy, deference is to be shown to the decision of those mandated to make the underlying decision.33 In an administrative law setting, the decision maker’s mandate derives from a statute. The fact that the legislature has allocated authority to a decision maker other than the courts is itself an indication that the legislature intended deferential review.34 In an arbitration context, the arbitrators’ mandate derives from the agreement of the parties. The parties have agreed that the arbitral tribunal will decide all issues of law through a “final and binding” award.35 A primary purpose and object of the Arbitration Act is to limit court interference in arbitral proceedings. Proper deference to arbitral decisions by courts applying a reasonableness standard is essential to the integrity of the arbitration regime.
In Vavilov, the Supreme Court of Canada provided guidance on how a reasonableness review of an administrative decision should be conducted, when the review is not necessarily limited to questions of law. The court emphasized how a reasonableness review differs from the application of a correctness standard, and the intellectual discipline required of the reviewing court:
[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. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: para. 28; see also Ryan, at paras. 50-51. 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.36
The court provided examples of situations in which an administrative decision might be considered unreasonable. Some of the examples spoke to circumstances that are present in an administrative context but not in an arbitral context. The following examples of potentially unreasonable decision-making, however, are pertinent to determining whether an arbitral decision on a question of law is unreasonable:
1.if the reasons for the decision, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis;37
2.where the conclusion reached cannot follow from the analysis undertaken;38
3.if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point;39
4.if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise;40 and
5.if the decision maker’s reasons do not meaningfully account for and meaningfully grapple with key issues or central arguments raised by the parties.41
The first step in a reasonableness analysis is to determine whether the arbitral tribunal’s decision was irrational. If an arbitral tribunal engaged in a rational chain of analysis, it does not matter if there is also another rational chain of analysis that would lead to a different conclusion. It does not matter if the court considers that an alternative chain of analysis is more rational than the one followed by the arbitral tribunal. The arbitral tribunal’s analysis is “irrational” only if a rational person could not subscribe to it. Whether the conclusion reached was “correct”, in the opinion of the court, is not a relevant consideration when performing this step in a reasonableness analysis.
The second step in a reasonableness analysis is to determine whether the arbitral tribunal’s opinion is untenable. In Vavilov, the court stated that an administrative decision may be untenable because “[e]lements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.” 42 An arbitral tribunal’s answer to a question of law will be “untenable” if there is some impedi-
ment—a factual or legal “show-stopper”—that, if taken into account, makes it impossible to justify the conclusion reached by the tribunal. Where an appeal is permitted only on an extricable question of law, the appellate court must accept as correct the arbitral tribunal’s findings of fact. Those facts “constrain” the arbitral tribunal’s answer to the question of law. The arbitral tribunal’s answer to the extricable question of law must be tenable in the light of those facts.
There also may be legal constraints on an arbitral tribunal’s answer to a question of law. It is at this stage of the analysis that the boundary between correctness and reasonableness standards is most difficult to respect. I contend that if it is beyond argument that an arbitral tribunal applied an incorrect legal test—for example, if the Supreme Court of Canada has determined the interpretation of a statutory provision and rejected the interpretation adopted by the arbitral tribunal—the decision cannot be reasonable. If, however, it can rationally be argued that the tribunal identified the correct test, it does not matter if the appellate court subscribes to a different view.43
In Vavilov, in relation to decisions of administrative tribunals which are not limited to questions of law, the court found that assessing reasonableness also may call for a consideration of contextual factors, including the governing statutory scheme, the past practices and decisions of the administrative body, and the potential impact of the decision on the individual to whom it applies. Such factors are not relevant to a reasonableness review of an arbitral award on an extricable question of law. There are, however, other contextual factors that might have a bearing on whether a court considers that an arbitral tribunal’s decision on a question of law is tenable. Those factors could include the benefits of domestic commercial arbitration for which the parties bargained (finality, privacy, procedural efficiency, the ability of the parties to select their decision-makers); the scope of the arbitral tribunal’s authority (as defined by the Arbitration Act, the arbitration agreement and any applicable procedural rules, and which does not include inherent jurisdiction); the fact that, generally, arbitral tribunals are not bound by the rules of evidence and “may decide all evidentiary matters, including the admissibility, relevance, materiality and weight of any evidence, and may draw such inferences as the circumstances justify”;44 and the issues raised or not raised and the arguments and case authorities presented or not presented to the arbitral tribunal.45 These contextual factors could be considered to ensure that the decision made by the arbitral tribunal is tenable in the sense that it is not clearly beyond the bounds of the decision-making process for which the parties bargained.
APPLICATIONS FOR LEAVE TO APPEAL
Sattva instructs that on an application for leave, the court must perform a preliminary assessment of the merits of the proposed appeal taking into account the standard of review that will be applied on appeal.46 The applicant must satisfy the court that it is arguable, applying the standard of review, that the appeal will succeed. As a result, courts hearing leave applications must be cognizant of the differences between the reasonableness and correctness standards.
If an application is made for leave to appeal an arbitral award under s. 59(4) of the Arbitration Act, the applicant must identify an extricable “question of law arising out of the award”. Unfortunately, on leave applications there is a common practice of identifying alleged “errors of law” by the arbitral tribunal. The “question of law” is described as “Did the arbitral tribunal err in law in finding that ….”. This terminology would be appropriate if the standard of review is correctness. But it is misleading and unhelpful if the standard of review is reasonableness. In that context it would be better to ask “Was the tribunal’s decision [on a specific question of law] unreasonable?” Counsel should be required to articulate the specific reasons why the arbitral tribunal’s answer to the question of law was unreasonable; for example, because “the award does not set out a rational chain of analysis” or “the tribunal’s reasoning was circular” or “the tribunal did not address a critical submission” or “the decision is untenable” for some specific reason. If that approach is taken, on the application for leave the court can perform an informed preliminary assessment of whether there is an arguable appeal. The specific allegations of unreasonableness in respect of which leave is granted should be set out in the order of the court granting leave. If the court asked to grant leave is not satisfied that it is arguable that the tribunal’s answer to the question of law was irrational or untenable, then leave must be refused.
ON APPEAL
To avoid wading into the debate about the standard of review, British Columbia courts have felt obliged to engage in a correctness analysis, which is, of course, something the Supreme Court of Canada has discouraged them from doing if the standard of review is reasonableness.47 If two alternative analyses must be performed, to better reflect the guidance provided by the Supreme Court of Canada in Vavilov, I suggest that a principled reasonableness analysis should be performed first, before the court considers whether it agrees with the arbitral tribunal’s decision. The steps in such an analysis would be as follows:
First, identify the question of law (the legal test at issue) that expressly or implicitly arises out of the award and the grounds under which leave was granted.
Second, review the steps in the reasoning of the arbitral tribunal that led to its conclusion concerning the question of law.
Third, consider whether the arbitral tribunal engaged in a rational chain of reasoning, considering whether there is merit to the specific contentions of the appellant as to why the arbitral tribunal’s analysis leading to its articulation (expressly or implicitly) of the legal test is irrational. As stated in Vavilov (with citations omitted):
[102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: []. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: [] Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”[].
[103] While, as we indicated earlier [] formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis: [] A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken [] or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point [].
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.48
Fourth, consider whether there is merit to any contentions of the appellant as to or why the arbitral tribunal’s conclusion is untenable. Is it not possible to rationally arrive at the same conclusion as the arbitral tribunal in the light of the arbitral tribunal’s findings of fact? Is the law so clear that it cannot rationally be argued that the arbitral tribunal identified and applied the correct legal test?
Fifth, if the court finds that the arbitral tribunal’s answer to the question of law is unreasonable because it is irrational or untenable, the court should either (i) clearly state in what respects it was irrational or untenable and refer the matter back to the arbitral tribunal for a further decision or (ii) decide the matter based on the arbitral tribunal’s findings of fact.49
Sixth, if the court finds that the appellant has failed to prove that the award does not meet the reasonableness standard, the court should either (i) decide that reasonableness is the applicable standard of review and dismiss the appeal or (ii) perform a correctness analysis to see if doing so results in a different disposition of the appeal and, if it does, decide which standard of review applies and dispose of the appeal accordingly.
ENDNOTES
1. Arbitration Act, SBC 2020, c 2.
2. Ibid, s 59(2).
3. Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 [Sattva]; Teal Cedar Products Ltd v British Columbia, 2017 SCC 32 [Teal]. See also MSI Methylation Sciences, Inc v Quark Ventures Inc, 2019 BCCA 448 [MSI].
4. Gerald W Ghikas, KC, “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”, Canadian Journal of Commercial Arbitration (forthcoming).
5. See, e.g., 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 athletica canada inc v Industrial Color Productions 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.
6. Sattva, supra note 3.
7. Teal, supra note 3.
8. Sattva, supra note 3 at paras 102–06; Teal, supra note 3 at paras 74–76.
9. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
10. Ibid at paras 39–44.
11. Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech].
12. Ibid at paras 118–20.
13. Ibid at paras 45–46.
14. Ibid at para 45.
15. Arbitration Act, supra note 1, s 59(4).
16. Ghikas, supra note 4.
17. Richmont Mines Inc v Teck Resources Limited, 2018 BCCA 452 at para 15 [Richmont]; MSI, supra note 3 at para 60.
18. Greater Vancouver Sewerage and Drainage District v Wastech Services Ltd, 2019 BCCA 66 at para 4; MSI, supra note 3 at para 60.
19. MSI, supra note 3 at paras 61–62.
20. Teal, supra note 3 at para 44; MSI, supra note 3 at para 69.
21. MSI, supra note 3 at para 72(b). See also Ledcor Construction Ltd v Northbridge Indemnity Insurance Co, 2016 SCC 37 at paras 44–46 [Ledcor].
22. See MSI, supra note 3 at paras 65–66, citing Ledcor, supra note 21 and Canada (Attorney General) v Fontaine, 2017 SCC 47 at para 35; Churchill Falls (Labrador) Corp v HydroQuébec, 2018 SCC 46 at para 49; JW v Canada (Attorney General), 2019 SCC 20 at para 110.
23. MSI, supra note 3 at para 67, citing Richmont, supra note 17 at paras 65–66.
24. MSI, supra note 3 at para 72(c).
25. Section 59(4) sets out the only three grounds on which leave to appeal may be granted. In my previously cited article, supra note 4, I propose that, while reasonableness is the standard of review if leave is granted under the first ground (which concerns “preventing a miscarriage of justice” as between the parties), it is arguable that correctness is the standard of review under the second and third grounds which engage third-party interests or questions of general importance.
26. Arbitration Act, supra note 1, s 59(2).
27. Some arbitrators like to engage a tribunal secretary. Doing so requires the agreement of the parties, to avoid any allegation of improperly delegating part of the decision-making responsibility. The parties typically insist on an express prohibition on independent legal research. Generally, if an arbitrator is
aware of an uncited authority that might influence the arbitrator’s analysis, the arbitrator must disclose that authority to the parties and invite comment.
28. There are rare cases where the parties, through submissions of counsel, agree to a legal principle that the arbitral tribunal considers unsound and unworkable. Tribunals struggle with how to handle such situations fairly and without expanding the matters in dispute. Typically, astute questioning by the tribunal will cause the parties to “clarify” their positions. This is very different, however, from suggesting alternative theories or arguments that benefit only one party.
29. Of course, when deciding whether the arbitral tribunal’s opinion is correct, the appellate court is bound to measure it against relevant jurisprudence, and stare decisis applies.
30. Vavilov, supra note 9 at para 101.
31. Ibid at para 85.
32. Ibid at para 85.
33. Ibid at para 30.
34. Ibid at para 30.
35. Arbitration Act, supra note 1, s 54.
36. Vavilov, supra note 9 at para 83.
37. Ibid at para 103.
38. Ibid.
39. Ibid
40. Ibid at para 104.
41. Ibid at paras 127–28.
42. Ibid at para 105.
43. There is often more than one rational, tenable answer to a question of law. Typically, court judgments that are later reversed on appeal, and dissenting judgments, engage in rational analysis of a legal question and arrive at tenable conclusions. An appellate court or a majority judgment may find that these reversed or dissenting judgements are incorrect. But this does not mean that the opinions expressed in all reversed lower court judgments or dissenting appellate judgments are unreasonable.
44. Arbitration Act, supra note 1, s 28.
45. A question of law that could have been but was not raised before the arbitral tribunal cannot be a question of law arising out of the award unless the tribunal itself expressly raised and addressed the question in the award. Leave to appeal on such a question should always be refused.
46. Sattva, supra note 3 at para 32.
47. Vavilov, supra note 9 at para 83.
48. Ibid at paras 102–03.
49. Arbitration Act, supra note 1, s 59(6).
THE GEORGE F. CURTIS BUILDING –FACULTY OF LAW
By Bruce Woolley, K.C.
2025 marks 50 years since the opening of the third UBC law school building. The George F. Curtis Building (the “Curtis Building”) was open for classes in September 1975, although not “officially” opened until 1976.
FIRST AND SECOND BUILDINGS
Originally the UBC law school was housed in army shacks called “huts”— the first “building”. Some of those huts survived into the 1970s, still providing offices and classrooms for the law school.
View toward the entrance of the second building circa April 1973, past the old big lecture hut on the right and what was left of the old classroom/faculty office hut, photographed by Joost Blom, K.C.
Dean George Curtis, O.C., O.B.C., Q.C., advocated for a new building and in 1951 a new law building (the “second building”) opened its doors. The exterior lines of the second building were clean and modern. The architects for the second building were Sharp & Thompson, Berwick Pratt. That building cost $323,263. Vancouver lawyer E.A. Lucas, who had been a fan of the early law huts, was described as paying the highest compliment he could think of to the second building: it was “a splendid dream … come true. The new Law Building is a glorified beautified hut!”
Perhaps the most important feature of the second building was a large library, with the capacity to house a growing collection of approximately 36,000 books. Those books were housed in several rooms: the Main Reading Room, and smaller rooms flanking it to either side.
Dean Curtis described the Main Reading Room as the centrepiece of the second building, noting: “Its deep windows gave a view which must be unrivalled—the harbour entrance in the foreground, the mountains rising behind one after the other to the distant horizon … The walls were lined with books—space, on a tight budget, was at a premium—and as well [they were] in batteries of chest-high shelves arranged between tables and chairs.”
The two smaller rooms by which the Main Reading Room was flanked (“Law West” and “Law East”) were also north facing and had deep windows. In the mornings and late afternoons, they served as lecture rooms, but otherwise, as they were lined with books, they were reading rooms as well. A third room, which was of similar size, stretched back to the southeast (“Law South”).
Reportedly the head of a Cambridge college once told the law dean that he thought the second building to be “an admirable design for a petrol station” until he entered the Main Reading Room, at which time his impression of the building was entirely transformed and he praised it as a magnificent hall and one of the best he had ever seen.
CURTIS BUILDING
Construction
By the 1970s the UBC law school had outgrown the second building and the need for a much larger law building and law library had become apparent.
As Bertie McClean, dean of the UBC law school at the time the Curtis Building was constructed, recollects, there was not enough funding available to tear down the second building and build a whole new structure. As such, the second building was preserved and renovated, and the third building—the Curtis Building—was added on.
Fred T. Hollingsworth was retained as the architect for the new building. The estimated cost for the new building was $3,400,000 to be paid for by B.C. government grants. A very large amount was financed by generous donations from the legal profession.
The new multi-storey concrete structure that was added to the second building was built in the “Brutalist” style fashionable at the time. (Another example of this style is the MacMillan Bloedel Building at Georgia and Thurlow in Vancouver, which was an Arthur Erickson design.)
Construction of the Curtis Building started in 1973. As a result of the construction, faculty offices were relocated primarily to Mary Bollert Hall, near Cecil Green. There were two faculty members per office. One of those faculty members was Joost Blom, K.C., who had graduated from UBC law school in 1970 and then attended Oxford, where he received his B.C.L. in 1972. He joined the law faculty in September 1972 and had an office in Mary Bollert Hall. (He also served as dean from 1997 to 2003.) Joost fondly remembers that now and then a Wreck Beach person would show up at Mary Bollert Hall, looking for the showers.
By the beginning of 1973, no classes were conducted in the second building. Law students attended classes in a variety of places including the UBC Hospital, East Mall Annex, some huts (although ultimately removed as part of the construction project) and the Buchanan complex. The wide variety of classrooms and their spaced out locations could make the logistics of getting to a class on time somewhat difficult.
During construction of the Curtis Building, Law South served to house the library’s reserve collection, circulation desk and offices, presided over by Molly Buckingham, Tom Shorthouse’s predecessor. The main collection remained in the Main Reading Room, Law West and Law East, until all the books were moved in January 1975 to their new location at the south end of the Curtis Building, with the library being finished before the rest of that building. During five days that January, a workforce of six library staff and 31 temporary recruits working in three teams moved the 85,000 volumes into the new library. The library provided for a book collection of 150,000 volumes and seating for seventy-five per cent of a proposed student body of 700.
Joost Blom remembers Lord Denning speaking to the law students in the Main Reading Room in 1974, shortly before the law library vacated it. Lord Denning was in town to speak to the Vancouver Institute. He treated the students to a “greatest hits” review of his decisions, with loud applause as each hit was mentioned.
The Honourable Lynn Smith, O.C., K.C., dean of the law school from 1991 to 1997, remembers that when she was a student there was some stu-
dent input requested for the Curtis Building facilities. Students made suggestions to the Building Committee, chaired by Professor Jerome Atrens. Apparently at one meeting, also attended by law professor Eric Todd, the students suggested a day care centre. Eric Todd responded by stating that this was supposed to be an academic community, not a commune.
Opening of the Curtis Building
With its grey concrete exterior, absence of interior colour and a minimum of windows, the initial reaction to the law building was negative. Bertie McClean told me he knew concrete was heavy, but the building turned out to be “heavier” than he thought it would be. In a “name the building” contest, students suggested “The Sensory Deprivation Centre”, “Mens Greya” and “The Symbolic Grey Area of the Law” as possibilities. In time the building became known informally as “The Bunker”.
Officially, however, the building was named after George Curtis. A petition of 507 signatures on several pages of foolscap was collected at the law
school between March 12 and 26, 1976, and addressed to the president of UBC, as follows:
George Curtis and Chief Justice Bora Laskin at Curtis Building opening ceremony (1976). University of British Columbia Archives, Photo by Jim Banham [UBC 41.1/200-1]
WE, THE UNDERSIGNED, recognizing that Dr. George F. Curtis was the founding Dean of this law school and served it well as Dean for twentyseven years;
As well as performing the duties of Dean, he has been teaching the law at U.B.C. for 31 years since 1945;
And recognizing, with gratitude, his ability to impart a knowledge and understanding of the law, its history and foundations, without neglecting the needs for change and reform;
And recognizing his individual compassion to the students and their problems;
DO HEREBY PROPOSE that the new law building be named, in his honour, The George F. Curtis Law Building.
That proposal was honoured.
The main entrance of the Curtis Building was graced by the motto “Fiat justitia, ruat coelum ”—let justice be done though the heavens fall. That motto also appears on the fourth building, Allard Hall. The motto was selected by George Curtis. Dean Moxon, a teacher at the law school in Saskatchewan that George attended, had quoted the phrase as used in Sommersett’s case and it inspired Dean Curtis as a student. “What could be better to express the spirit which this law school, I hoped, would be imbued.”
The Curtis Building officially opened on the afternoon of Friday, September 17, 1976. In remarks he delivered at the time, the Honourable Kenneth Lysyk, Q.C., then dean, noted:
George Curtis knows a good deal about Law Buildings, and their acquisition … The Advocate records the original arrangements engineered with the collaboration of one Norman Mackenzie (and I am delighted that Dr. Mackenzie is able to be with us here this afternoon). Those arrangements were succinctly described by the author of the article in these two sentences: “One late evening, during the dark of the moon, a number of men went to an empty army camp, sawed several of the huts in two, loaded them on log trucks and landed them on the campus. Permission to do this was said to be expected from Ottawa almost any time.” … The admiring author of that account, writing in 1952, noted that the famous huts were still here, and stated: “I hereby start a movement to name them the Curtis huts.” While movements can take some time to gather momentum, one so solidly based was bound to be irresistible. And while the structure to be opened this afternoon may lack the colourful history of the army huts, the George F. Curtis building will assuredly provide a more durable testimonial.”
Dean Lysyk went on the praise the efforts of his direct predecessor, Dean McClean, “his dedication, characteristic good humour and patience, all of which served so well in coping with the dislocation and the frustrations inevitable in carrying through a project of this nature.” He also praised Professor Jerome Atrens, who chaired the Building Committee through the
periods of planning construction, and “has, I understand, the scars to show for it”. Many others were also recipients of his thanks.
Preceding the opening ceremonies was an open-house: the public was invited to tour the building and to attend classes. The speakers at the formal dedication were, in addition to Dean Lysyk, the Honourable Thomas A Dohm, Q.C., chairman of the board of governors; Mark Dwor, president of the Law Students Association; Douglas T. Kenny, Ph.D., president of UBC; the Honourable Bora Laskin, P.C., Chief Justice of Canada; and Donovan F. Miller, chancellor of UBC.
Building Layout
As set out above, most of the second building was retained, including what became classrooms 157, 169 and 177. These were created from the old Main Reading Room.
Classrooms 157 and 177 were favourites of mine and I taught many classes in those rooms, well lit with great views. My very first class in law school as a student in September 1975 was in room 157, being Real Property Law (as it was called then), taught by Eric Todd. It was an 8:30 a.m. class, Monday, Wednesday and Friday. Being my very first class in law school, I showed up early for the class and sat in the second row (not wanting to appear too anxious) in the middle section. A couple of minutes before 8:30, Professor Todd arrived, wearing a dark suit and tie, and carrying materials. There was a clock at the front of the room. At precisely 8:30, Professor Todd closed both doors at the front of the room. He went to the lectern and the south door was opened by a student. Professor Todd looked at the student and said, “The door was shut.” The student started to apologize but Professor Todd merely stated, “The door was shut.” The student tried apologizing again and Professor Todd then picked up his materials and marched out of the class. That was my first class at law school. I cannot imagine that happening today. The first year I taught Property Law, I was given the same room, 157, at the same time, 8:30 a.m. It did feel strange for the first few classes.
The room to the west of the old Main Reading Room (referred to earlier in this article as Law West) became the cafeteria and gathering room, where Maria and later Candida provided food and beverages to the law students and faculty. Maria was also known for her own form of Flamenco dancing. On Friday afternoons, the room was the site of many beer gardens, although, as I recall, we were not allowed to use the word “beer” when promoting the events: I think we had to cross though the “ee” in “beer”.
Law East, to the east of the old Main Reading Room, became seminar rooms and Law South became the Moot Court Room.
One of the major additions in the Curtis Building was the “Interaction Area”. I do not think it was ever officially named that, but the name stuck and it was a major gathering area—“see you in the interaction area after torts”. Another good gathering area was the central courtyard on sunny days.
At the south end of the Curtis Building were the new law library, and three new classrooms: 101, 102 and 201. Room 101 was a very large lecture hall with a stage. I have a fond memory of that classroom. Tony Sheppard taught us Principles of Civil Litigation in that room. One day, standing at the blackboard, he remained in the same place for a long time. He finally said, “You are not going to believe this, but the sleeve button on my jacket has become caught in the chalk railing and I am unable to move.” The class rocked with laughter and Tony eventually twisted out of his jacket and was free. I also remember class 201, which was an incredibly steep classroom with what appeared to be a somewhat unstable chalkboard at the front.
ADDITIONAL FACULTY AND FURTHER REMINISCENCES
In 1975 five new faculty joined the law school: Dennis Pavlich, Bob Paterson, the Right Honourable Beverley McLachlin, P.C., C.C., Jim Taylor, Q.C., and Bob Reid.
Dennis Pavlich joined the law faculty fresh from Yale. He thought the Curtis Building was lovely—he had never taught in such luxury. That first year, he taught Criminal Law, Landlord and Tenant, and Legal Institutions. He did not teach Trusts or Property Law, for which he is now most well known. Students of his first year of teaching included the Honourable Risa Levine and Ujjal Dosanjh, P.C., K.C.
View of the courtyard from circa 1975 showing how the second building (left) and the new building were joined, photographed by Jon Sigurdson
Dennis taught me Criminal Law. I have a fond memory of a particular class dealing with mens rea and actus reus. Marc Gold (now a Canadian senator) always sat at the front. Dennis looked at Marc and asked: “If I thought Mr. Gold were a log and I threw him in the fire, would I be committing a criminal offence?” Dennis still teaches at the law school—Trusts and Property Law. He reminds me of David Attenborough—full of life and energy and loving what he does.
Bob Paterson also joined the law faculty in 1975 and he and Dennis have remained good friends since. Bob had attended Stanford, then returned to his native New Zealand where he practised for a couple of years before becoming a lecturer at the Victoria University of Wellington. When he joined the UBC law faculty, he taught Agency & Partnership, Company Law and International Trade Law, being the first law professor to teach that subject in Canada. Having attended Stanford, he found UBC law school not as theoretical as he had expected. He remembers the downtown bar playing an important role. He also recollects the faculty was a most collegial group, whose interaction was facilitated by the nearby faculty club with its eating and drinking facilities. His first impression of the Curtis Building was as “a classic Brutalist statement”, following the lead of Le Corbusier.
Beverley McLachlin taught a course at the law school in 1974 and then, at the invitation of Bertie McClean, joined the law school in 1975 as an associate professor. As you all know, Beverley served as Chief Justice of the Supreme Court of Canada from 2000 to 2017, being the longest-serving chief justice in Canadian history and the first woman to hold the position. She is also a #1 best selling author, among her current activities. Beverley’s view of the Curtis Building was not positive. While she liked the retention of the second building with its wonderful views, the Curtis Building had long, dark corridors and small offices with high-up windows that did not take advantage of the view. Secretaries sat out in the hallways. But most importantly, the Curtis Building did not take advantage of the incredible views, now also partly blocked by the Chan Centre for the Performing Arts.
Lynn Smith, who joined the law faculty full time in 1981, remembers the Curtis Building as being remarkably cold—both physically and in its grey concrete atmosphere. In Lynn’s term as dean, the Curtis Building continually had problems with its heating and ventilation systems. Being solid concrete, it resisted attempts to refit. Lynn also remembers, near the end of her term as dean, that UBC planners seemed close to agreeing that the law faculty needed a new building—but then it was revealed that they wanted its magnificent site for other purposes. Through the efforts of Lynn, Associate Dean Bob Diebolt, K.C., and others, that move was fortunately staved off.
The head of the library was Tom Shorthouse. Tom guided the growth of the library with unparalleled excellence and charm for 32 years. Tom was also an actor who appeared in commercials, television and movies. Among the staff working with Tom was Al Soroka. He held the position of Assistant Law Librarian for 31 years. He was most helpful, but was best known for his walk—for many years there would be Al Soroka walk-alike contests. Frances Wong also worked with Tom. She had the incredible skill of almost instantly locating material on request.
I have very fond memories of my time at law school—starting in 1975 and graduating in 1978. I remember the trike race each year, with Paul Ayriss officiating, wearing a bowler hat—and a handsome law student decked out in respectable drag, hugging Paul, which Paul seemed to enjoy. I note that at the time, the law school administration was carried out with a very small staff. On trike race day, after wounds were bandaged and some quantity of beer had been consumed, charades in rooms 101 and 102 followed. I had never seen anything like it—a secret language. The law library had a team, and there were also teams of students and faculty. I remember very well the winning team: Stephen Schachter, K.C., Dale Banno, Shael Smith and Alan Milne. They would magically solve the clues that seemed impossible. Stephen remembers a clue that included the word “gossamer” and the team member acting out the clue on his team doing an impression of Dick Gosse, Q.C., a faculty member at the time.
I do not remember the social function held the first week of first year but the next year Hugh Stansfield, later to be Chief Judge of the Provincial Court of British Columbia, headed up a group of us and we put on a very successful salmon barbeque at the end of the first week. It was so successful, we decided to put on Octoberfest. However, we were somewhat tardy so we held Novemberfest—which included Gary Weatherill, decked out in full lederhosen, dancing to Austrian music. Despite that, he went on to become a B.C. Supreme Court judge along with his brother Gordon Weatherill. I also recall participating in the Gong Show, a silly affair that morphed over the years into the Law Revue.
In coming to the close of this article, here are a few more facts to help in the memories. According to the UBC calendar, there were 251 students in first year law in 1975. There were no LL.M. students. First year law consisted of Canadian Constitutional Law, Contracts, Criminal Law and the Criminal Process, Legal Institutions, Principles of Civil Litigation, Real Property and Torts. One of my favourite memories was of Jimmy McIntyre, K.C., teaching Legal Institutions. He used his usual method—“Page 1, not much there, same for page 2, page 3 not much interesting there, page 4—
now here is an interesting bit.” There is not enough room to name all the faculty members, but they were a wonderful combination of professors including Charles Bourne, Ray Herbert, Liz Edinger, J.C. Smith, Bob Diebolt, Joe Weiler and downtowners such as Ken Bagshaw, Winton Derby, K.C., the Honourable Bruce Harvey, K.C., the Honourable H.A. (Bud) Hollinrake, Darrell Roberts, K.C., the Honourable Peter Leask, K.C., and G.R. Schmitt. I apologize for the omissions—so many great people.
We need to remember history, to discuss it and realize the importance of history in our lives—personal and legal. Part of that history has been shameful, including treatment of women at law school and treatment of Indigenous peoples and their history and laws. Part of the history has been positive and helps us to relate to other lawyers, in what we all hope is a relationship of respect and collegiality. I hope this discussion of the Curtis Building and some of the surrounding history may encourage lawyers to give their ongoing support to the law school and law students. Finally, I hope that this article has brought back some memories resulting in an ongoing commitment to the rule of law and to law reform.
ACKNOWLEDGEMENTS
I have not used endnotes in this article, as it is intended to be a non-academic memory journey. For written sources, I am indebted to the 1975-1976 UBC Calendar; Anthony F. Sheppard, “The Ceremonial Opening of the George F. Curtis Building, Faculty of Law, University of British Columbia” (1977) 35 Advocate 31; Joan Curtis Duchastel, James MacIntyre, Q.C., and David Harris, Q.C., “George Frederick Curtis, F.O.C., O.B.C., Q.C.: A Celebration” (2006) 64 Advocate 181; the UBC library archives; the Peter A. Allard School of Law history project; and “Law School: The Story of Legal Education in British Columbia” by W. Wesley Pue.
I also spoke to a number of people about their recollection of the Curtis Building. They were all so very helpful and we had a lot of laughs reminiscing about events of 50 years ago. I hope the recollections are mostly accurate—and that responsibility rests with me. A big thank you to Ngai Pindell, current dean of Peter A. Allard School of Law, his executive assistant, Rosanna Falbo, Dennis Pavlich (who, beyond his roles with the law school, also served as UBC’s University Counsel and as its Vice President External and Legal Affairs), Bob Paterson, Bertie McClean, Joost Blom, Bob Diebolt, Stephen Schachter, the Honourable Jon Sigurdson, Lynn Smith, Gordon Weatherill, Gary Weatherill and Beverley McLachlin. And a special thanks to Ludmila Herbst, K.C., for her ongoing support and encouragement.
OPINION, ADVICE OR DIRECTION AND MOMENTOUS DECISIONS: WHERE ARE WE NOW?
By Joel Nitikman, K.C.
It must be rare for an entire area of law that is treated essentially the same throughout the Commonwealth to turn on an unreported ex parte decision of a single judge. That, however, appears to be the situation when it comes to what have come to be called “blessing” applications.1
Perhaps the most fundamental duty of a trustee is to follow the terms of the trust instrument (or the oral terms of the trust). But those terms may not always be easy to interpret or apply in a given situation. In addition, a trustee may be faced with a very important decision, the consequences of which will affect the trust or its beneficiaries or both in profound ways. Given that trustees are liable personally for any breach of trust, many trustees will be understandably nervous about interpreting and applying the trust deed the wrong way or making such an important decision without some way of ensuring that they do not get sued.
Of course, the trustee may and usually will get legal or other professional advice. But that is not a panacea. The advice may be wrong.
Since 1859, trustees (and executors or administrators) have had the right to apply to the Court of Chancery—now the provincial and territorial superior trial courts—for the court’s “opinion, advice or direction” on matters concerning the “management or administration of the trust property”. In addition, trustees may apply under the court’s inherent equitable jurisdiction over trusts and trustees for the court’s approval or “blessing” of a “momentous” decision.
This article sets out the current law in respect of these two avenues of providing assurance to a trustee and shows how some older cases, which limited the use of the opinion jurisdiction, should now be regarded as passé.
THE CURRENT LEGISLATION - SECTION 86
Section 86 of British Columbia’s Trustee Act2 states:
Application for directions
86(1) A trustee, executor or administrator may, without commencing any other proceeding, apply by petition to the court, or by summons on
a written statement to a Supreme Court judge in chambers, for the opinion, advice or direction of the court on a question respecting the management or administration of the trust property or the assets of a will-maker or intestate.
(2) The application under subsection (1) must be served on, or the hearing attended by all persons interested in the application, or by those that the court thinks expedient.
(3) The costs of an application under subsection (1) are in the discretion of the court.
In terms of the procedure to be used to implement a request for directions, B.C. Supreme Court Rule 2-1(1) provides that, subject to any exception, all proceedings must be started by a notice of civil claim. One exception is provided for in Rule 2-1(2)(b):
2-1(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.
As s. 86(1) authorizes an application, Rule 21-1(2)(b) applies and the court proceeding must be started by petition.
Because a petition is used, Rule 16-1(2) states: “A person wishing to bring a proceeding referred to in Rule 2-1(2) by filing a petition must file a petition in Form 66 and each affidavit in support”.
The rules permit persons other than trustees to bring similar claims. Rule 2-1(2)(d) permits a petition to be used in trust matters:
(d) the relief, advice or direction sought relates to a question arising in the execution of a trust, or the performance of an act by a person in the person's capacity as trustee, or the determination of the persons entitled as creditors or otherwise to the trust property.
One may then ask, why bring an application under s. 86(1) of the Trustee Act? The real answer is because of the protection given to trustees under s. 87 of the Trustee Act:
Effect and exception
87(1) The trustee, executor or administrator, acting on the opinion, advice or direction given by the court, is deemed, so far as regards their own responsibility, to have discharged their duty as trustee, executor or administrator in the subject matter of the application.
(2) This Act does not extend to indemnify a trustee, executor or administrator in respect of an act done in accordance with the opinion, advice or direction referred to in subsection (1) if the trustee, executor or administrator has been guilty of fraud, wilful concealment or misrepresentation in obtaining the opinion, advice or direction.
Of course, a trustee could always just get a legal opinion. But it was recognized from the earliest times of the “advice, opinion” legislation that that
alone might not protect the trustee from a negligence or breach of trust lawsuit. Hence, s. 87’s forerunner was viewed as being essential to the operation of the advice and direction provision.
THE SCOPE OF SECTION 86
The main purpose of this article is to discuss the scope of the court’s jurisdiction under s. 86(1). But to appreciate that scope, it is useful to review where that subsection came from.
In the Beginning: Lord St. Leonards Act
On June 11, 1857, Lord St. Leonards, a member of the U.K. House of Lords, introduced a bill in that House entitled “An act for the better protection of trustees, executors, and administrators acting bona fide in the discharge of their office”, commonly called the Trustees Relief Bill. The bill covered a range of subjects but, in particular, it permitted trustees to apply to the Court of Chancery on a summary application for that court’s advice or opinion on various matters. Prior to the bill, that could be done only through an action for the administration of the trust by the court and the applicable trust funds had to paid into court.3
The summary application provision, being s. 30 of the final statute, the Trustees Relief Amendment Act, 4 provided as follows:
Any Trustee, Executor, or Administrator shall be at liberty, without the Institution of a Suit, to apply by Petition to any Judge of the High Court of Chancery, or by Summons upon a written Statement to any such Judge at Chambers, for the Opinion, Advice, or Direction of such Judge on any Question respecting the Management or Administration of the Trust Property or the Assets of any Testator or Intestate, such Application to be served upon or the Hearing thereof to be attended by all Persons interested in such Application, or such of them as the said Judge shall think expedient; and the Trustee, Executor, or Administrator acting upon the Opinion, Advice, or Direction given by the said Judge shall be deemed, so far as regards his own Responsibility, to have discharged his Duty as such Trustee, Executor, or Administrator in the Subject Matter of the said Application; provided nevertheless, that this Act shall not extend to indemnify any Trustee, Executor, or Administrator in respect of any Act done in accordance with such Opinion, Advice, or Direction as aforesaid, if such Trustee, Executor, or Administrator shall have been guilty of any Fraud or wilful Concealment or Misrepresentation in obtaining such Opinion, Advice, or Direction; and the Costs of such Application as aforesaid shall be in the Discretion of the Judge to whom the said Application shall be made.
The bill itself and s. 30 in particular, received less than an overwhelming response. There is no point in detailing it all here. Suffice it to say that the other Lords asked for the bill to be put over for further investigation. When
they eventually approved it and sent it down to the House of Commons it was rejected there5 and had to be reintroduced in 1958.6 The Chancery Court had to create new rules to deal with the procedure for bringing the summary application7 and these had to then be inserted in an amending statute.8 Most importantly, judges of the Chancery Court hearing the applications held that s. 30 allowed them to deal with only small trust matters and not at all with questions of construction or interpretation of the trust deed.9 Indeed, s. 30 was repealed in 1893,10 although rules of court permitted essentially the same kind of application.11
British Columbia copied this legislation in 1881 when it passed the Act to Further Amend the Law of Property, and to Relieve Trustees, 12 s. 14 of which provided:
Any trustee, executor, or administrator, shall be at liberty, without the institution of a suit, to apply by petition to any Judge of the Supreme Court, or by summons upon a written statement to any such Judge at Chambers, for the opinion, advice, or direction of such Judge on any question respecting the management or administration of the trust property or the assets of any testator or intestate.
This provision fared no better in the B.C. courts than had its U.K. predecessor. In Re Royal Trust Co.13 it was held that the then equivalent provision of the B.C. Trustee Act did not permit the court to provide an advice or opinion that would establish anyone’s legal rights and that the section was limited to “little matters of [the trustee’s] discretion”.
However, the tide appears to have turned. As one Australian court noted, in respect of similar legislation there, “The court’s approach is now more flexible”.14 Indeed, this appears to have been Lord St. Leonards’ objective all along, as can be gleaned from his remarks when first introducing the bill in 1857:
He [Lord St. Leonards] also proposed to give trustees a summary right by petition, without rendering it necessary to file bills, to obtain the opinion, of the Court of Chancery upon any point which might arise in the administration of the trust estate. This would be a great benefit to trustees, and, by substituting a cheap and simple process of determining questions, prevent the necessity of expensive suits.15 [emphasis added]
Under current caselaw, my view is that the following principles now apply to a s. 86 application:
(a) the purpose of s. 86 is to permit a trustee or executor to seek the opinion, advice or direction of the court on legal issues when the trustee or executor is unsure how to proceed regarding the management or administration of an estate;16
(b) s. 86 permits the court to provide its interpretation of the terms of a trust;17
(c) under s. 86, the court is not meant to exercise a trustee’s powers, but rather to provide advice on a legal issue.18 Or to put it another way, s. 86 does not require or permit the court to say what it would do in the trustee’s shoes, but rather “whether the decision is one a reasonable body of trustees, properly informed as to the meaning of the relevant provisions of the trust deed, could have arrived at”;19
(d) the scope of the court’s jurisdiction under s. 86 is “broad” and “not restricted to minor or procedural issues”.20 Indeed, Australian decisions have held that there is no basis for reading in any unwarranted limitation on the scope of the advice or opinion that the court may give under s. 86.21
With these principles in mind, trustees and executors should feel safe in applying to the court for advice when the trust deed or will is unclear, ambiguous or raises real doubt as to its meaning. However, the trustee cannot apply to the court under this section to exercise the trustee’s discretion for the trustee (but see category 3 of the momentous jurisdiction below).
In the past it was suggested that a s. 86 application was inappropriate if the rights of parties had to be determined or if an interpretation of the trust deed was required, especially because the application would be based on affidavit evidence and there was no right to appeal. The Beacon Hill Park litigation shows that that is all wrong. That was a hotly contested s. 86 application concerning the interpretation of a trust deed covering a park on Vancouver Island, which was decided in the B.C. Supreme Court based on affidavit evidence and then appealed to the B.C. Court of Appeal.
Various decisions today continue to say that a s. 86 application cannot determine the rights between parties. In my view, that is true but misleading. Section 86 permits the court to give its “opinion, advice or direction”. Naturally, that kind of order will not bind the parties in the sense that it substantively determines their rights. But it could lead to the trustee making a decision that will affect the rights of the parties. In Ireland v. Retallack22 the court, in discussing the equivalent of s. 86, said:
57 Uniform Civil Procedure Rules 2005, rule 55.2, provides that an opinion, advice or direction given under s 63 “must be given by order”. However, such an order is permissive in nature, its usual form being that the trustee “would be justified” in taking certain action. As such, the order does not carry with it the usual consequences of an order made by the Court in adversarial proceedings, whether parties have been given notice of the application under s 63(4). Thus, it does not create a res judicata It does not finally determine the rights of parties. Indeed, it does not, of itself, determine any rights, although, it has the potential to affect the rights of the parties given notice. It does not carry with it the consequences of breach, including, e.g. the exposure to contempt proceedings should an order be disobeyed. [emphasis added]
Thus, my view is that parties must not be too complacent about the court’s order, on the basis that it does not “really” affect their rights.
This point was discussed in Macedonian Orthodox Community Church 23 At paragraphs 105–106 the High Court of Australia adopted the Attorney General’s argument that, in a s. 86 application, “while it was not the court's purpose to determine the rights of adversaries, that could be done as a necessary incident of determining what course ought to be followed in the best interests of the trust estate”. While the court supported that conclusion with the wording of the relevant legislation, which is slightly more expansive than s. 86, the concepts in that legislation all apply to s. 86 applications, so my view is that the High Court’s conclusion on deciding the rights of parties applies to a s. 86 application.
My view is that Lord St. Leonards’ wish has, after 167 years, finally come true: trustees can apply in a summary way for the court’s advice, opinion or direction on virtually any aspect of the carrying on of the trust.24
PRINCIPLES OF INTERPRETATION
As many s. 86 applications will turn on the interpretation of the trust deed, it is perhaps convenient to discuss the relevant principles. The three main principles are these:25
(a) the court’s primary purpose is to determine the settlor’s intention;
(b) the court must determine that intention by construing the settlor’s words according to their ordinary, natural or primary meaning;
(c) the court must construe the words against the background facts leading up to the settlement of the trust, the so-called factual matrix.
Another useful summary of the applicable principles is this:26
[109] I adopt Mr Smith QC’s economical exposition of the relevant principles for the interpretation of trust deeds (with which Ms Anderson QC took no issue). The principles are as follows:
(a) In general, trust deeds are construed as per the ordinary rules of contractual interpretation.
(b) More specifically, deeds are to be interpreted from a standpoint that is practical and purposive, rather than detached and literal. The factual matrix within which the relevant trust was formed is relevant. Trust deed provisions are to be interpreted objectively in the context of the whole document, relevant statutory background and factual matrix.
(c) A Court, when interpreting a trust deed, is required to construe each provision according to its natural meaning and give provisions “ample operation” rather than approach interpretation in a narrow way or limited by reference to historical presumption.
(d) The test of what is intended by the settlor or in the reasonable contemplation of the parties is an objective question, to be answered by ascertaining the actual meaning of words used in their context. The search for intention in relation to trusts, as with contracts, is for the intention as revealed in the words used by the parties. The expressed intention of the parties is to be found in the answer to the question, “what is the meaning of what the parties have said?”, not to the question, “what did the parties mean to say?”
(e) Interpretation of trust deeds should be tailored having regard to the type of trust involved. In particular, interpretation should reflect the modern commercial context of many trusts. Energy trusts have been recognised as having a commercial aspect that is relevant to matters of interpretation. [emphasis added]
As an alternative to s. 86, the court has the inherent jurisdiction to determine the scope of a trustee’s powers or approve (now called “bless”) a trustee’s “momentous decision” through the exercise of those powers. A trustee’s application may cover both points.27
A “momentous” decision is one that is of “real importance” to the trust.28 For example, a decision to appoint the entire fund may be considered momentous.29
As noted in the introduction above, the key decision in this area of law is the unreported judgment of Robert Walker J. in Re Egerton Trust Retirement Benefit Scheme. That case was cited with approval and brought to light by Hart J. in Public Trustee v. Cooper, 30 which itself has now been given the seal of approval by the Court of Appeal for England and Wales in National Westminster Bank Plc v. Lucas. 31 Walker J. suggested that there are four categories of momentous decisions:
(1) The first category is where the issue is whether some proposed action is within the trustees' powers. That is ultimately a question of construction of the trust instrument or a statute or both;
(2) The second category is where the issue is whether the proposed course of action is a proper exercise of the trustees' powers where there is no real doubt as to the nature of the trustees' powers and the trustees have decided how they want to exercise them but, because the decision is particularly momentous, the trustees wish to obtain the blessing of the court for the action on which they have resolved and which is within their powers;
(3) The third category is that of surrender of discretion properly so called;
(4) The fourth category is where trustees have actually taken action, and that action is attacked as being either outside their powers or an improper exercise of their powers.
Obviously, it behooves a trustee applying to the court to bless a momentous decision to tell the court under which category the application falls.
It will be noted that, unlike a s. 86 application, in which the court will not tell the trustee what to do, only what the trustee is allowed or not allowed to do, category 3 above permits a trustee to “surrender” their discretion to the court and allow the court to make the actual decision.
In considering whether to bless a momentous decision, the court in Toigo said it should take the following factors into account:32
(a) does the trustee have the power under the trust instrument and the relevant law to make the “momentous decision”?
(b) has the trustee formed the opinion to do so in good faith and is it desirable and proper to do so?
(c) is the opinion formed by the trustee one that a reasonable trustee in its position, properly instructed, could have arrived at?
(d) is the court certain that the decision has not been vitiated by any actual or potential conflicts of interest?
A discussion of whether there are three or four (or five?) tests to meet is found in Rep of Otto Poon Trust. 33 The quote is long but instructive:
14. . .the court must satisfy itself (i) first, that the trustee's decision has been formed in good faith, (ii) second, that the decision is one which a reasonable trustee properly instructed could have reached, and (iii) third, that the decision has not been vitiated by any actual or potential conflict of interest. A similar approach is taken in England.[34 ]
15. It was submitted to us. . .that English case-law. . .has recently developed an additional requirement. . .namely that the trustee must also prove in detail that it has given proper consideration to the matter under scrutiny, setting out in detail the steps taken by the trustee and the considerations which informed the trustee's decision.
16. We do not consider that Madam Kan's submission as to the applicable law to be well founded. . .One necessary element of the test is that there has indeed been a decision of the trustee which the court is being asked to approve, because after all it is a decision which the court is being asked to approve. The decision must naturally be a “proper” one. This indeed is inherent in the first limb of the test. But of course that decision may not be final, in that implementation of the decision may be conditional upon the court's approval; and this, along with other circumstances of the particular case, may give colour to the degree of formality with which the court requires the decision to be proved and the degree of detail which the court requires to be given.
17. We do not read the English case-law as introducing a new and additional requirement that a trustee must in all cases prove anything other than that the three-part test set out above has been satisfied. Furthermore, we consider that it is both unnecessary and undesirable to intro-
duce a separate requirement for a trustee to prove in all cases precisely what it has done in giving consideration to the matter under scrutiny: a decision-maker can consider matters carefully and still reach an irrational decision, and conversely an entirely rational decision can be reached on the basis of superficial thought processes.
18. When the court is to give approval for a momentous decision the court needs to be satisfied as to the rationality of the decision; the lengths to which the court must go in examining the process by which the trustee arrived at the decision must depend upon the particular decision. In some cases the decision may be a difficult and doubtful one, requiring fine judgment in the face of competing considerations; in others the decision may be obvious. In the former cases the quality of the decision-making process will be more important than the latter. For that reason, we do not consider that the additional requirement for which Madam Kan contends should be introduced to the law of this jurisdiction, even if it were to be adopted in England.
19. That is not to suggest that the court should take a lax approach, or that it should approve any trustee's applications without due consideration. There is a threshold that must be crossed: the court is required properly to scrutinise the proposed exercise of the trustees' power on the evidence. . .the result of the court giving its approval is that the beneficiaries will be unable thereafter to complain that the exercise is a breach of trust, or to set it aside as flawed. . .the trustees should put before the court all relevant considerations (supported by evidence) and they should explain their reasons for reaching the decision, even though they are not otherwise obliged to make such disclosure to the beneficiaries. But the process by which the trustees satisfy the court that the legal test has been met should not be confused with the substance of the test itself. . .each case will need to be decided on its own facts, and the degree of detail that is required from a trustee cannot be uniform in all circumstances.
20...Not only did the court need to be satisfied that the decision was within the range of possible decisions which could reasonably be made, but also that the actual decision was arrived at by the trustee in such a way that from the range of possible decisions it was likely to be a good decision, perhaps even the best possible or “right” decision.
I confess that I find these passages confusing. At paragraph 16 the court rejects the argument that a trustee must explain to the court all the considerations that went into the decision, yet at paragraph 19 says that the trustee “should explain their reasons for reaching the decision”. I for one do not see the difference and none of the cases that have cited Otto Poon has tried to explain it.35
BEDDOE APPLICATIONS
Lord Justice Lindley said in In re Beddoes; Downes v. Cottam:36 ... a trustee is entitled as of right to full indemnity out of his trust estate against all his costs, charges, and expenses properly incurred .... The
words “properly incurred” ... are, in my opinion, equivalent to “not improperly incurred.”
The concept of “not improperly incurred” is usually translated as “reasonably incurred”.37
In light of that principle, a particular kind of momentous decision for which courts are often asked their blessing is to undertake or defend an action on behalf of a trust. The costs of doing so are usually so high and the trustee is usually so scared of being refused reimbursement for the legal fees (which, as a trustee, the trustee owes personally) that a Beddoe application is almost always made prior to any litigation commencing. As one court put it,38 the decisions in Beddoe and other similar cases:
14. . .stand as a warning against litigation which, in the afterthoughts possible with the finality of every lawsuit, may then appear to have been hopeless of success; and see Lewin on Trusts, 16th ed., p. 208. In such event the cost of the litigation may be charged against the administrator personally. So much already appears from our own Trustee Act; and see secs. 52 and 57. [emphasis added]
It does not appear that anyone has yet connected the test to be applied in a Beddoe application to the tests set out above for a momentous decision,39 yet it seems to me that the former is simply an example of the latter and so the tests for the two should be the same. Perhaps the term “not improperly incurred” is equivalent in its import to the reasonable and honest test for momentous decisions.
Trustees contemplating a Beddoe application may be caught between a rock and a hard place: if they do not make the application, proceed with the litigation and lose, the onus will be on them to prove that the decision to litigate was reasonable in order to recoup their legal fees from the trust fund, which may be difficult to do given that they lost. On the other hand, the cost of such an application may itself be significant. In Bowser v. Smith (Re Estate of Ian John Smith), 40 the court acknowledged this problem but did not suggest a solution:
70. One of the criticisms made by the Judge of Mr Bowser's conduct was that he failed to apply for Beddoe relief before initiating proceedings to remove his co-executor. It is indeed true that he did not do so, nor is there any indication in the correspondence or his evidence that he ever gave any consideration to the possibility. Had he done so, it would quickly have become apparent that the making of such an application (seeking the approval of the court to the bringing of such proceedings, and a consequential indemnity for his proper costs in doing so) would itself have been a substantial undertaking. A Beddoe application has to be made in separate proceedings, to which the beneficiaries are joined as parties, and the court then has to form a view whether it is for their benefit that the proceedings should be prosecuted. For that purpose, it would have been necessary to obtain rep-
resentation of the minor children, and to instruct counsel to advise on their behalf: see generally Alsop Wilkinson v Neary [1996] 1 WLR 1220 at 1225G – 1226E (Lightman J). In other words, the procedure would itself have been an expensive and time-consuming exercise, and before embarking upon it Mr Bowser should have carefully considered whether the circumstances were really such as to justify the commencement of hostile litigation by him against his co-executor.
Furthermore, had Mr Bowser then decided against making a Beddoe application, it would have brought home to him that, if he decided to proceed without the protection of such an order, he would be doing so at his own risk as to costs, and that if he was to be indemnified for his costs out of the estate, he would need to show that he had acted reasonably and properly in pursuing the litigation. As Lindley LJ said long ago, in In Re Beddoe itself [1893] 1 Ch 547 at 558:
"…if a trustee brings or defends an action unsuccessfully and without leave, it is for him to show that the costs so incurred were properly incurred".
See too the judgment of Bowen LJ at 562, where he said:
"If there be one consideration again more than another which ought to be present to the mind of a trustee, especially the trustee of a small and easily dissipated fund, it is that all litigation should be avoided, unless there is such a chance of success as to render it desirable in the interests of the estate that the necessary risk should be incurred."
[emphasis added]
The only lesson one can draw from this appears to be, trustees contemplating litigation need to move extremely cautiously whichever way they decide to go.
ENDNOTES
1. This article will also ask whether a Beddoe application is any different than a blessing application.
2. RSBC 1996, c 464, as amended.
3. See the Queensland Law Reform Commission Discussion Paper, “A Review of the Trusts Act 1973 (Qld)”, WP No 70, December 2012, 553, ss 12.101–12.102.
4. The “short” title is the Law of Property and Trustees Relief Amendment Act, 22 & 23 Vict, c 35 and the long title is An Act to further Amend the Law of Property, and to relieve Trustees, Royal Assent August 13, 1859. See [1859] 33 Law Times Reports: Containing All the Cases Argued and Determined in the House of Lords i at xv. Some authorities refer to it by the short and some by the long title, so researchers have to use both. In fact, it is also referred to as “Lord St. Leonards Act” so one must use that term as well.
5. [1857] 29 Law Times Reports: Containing All the Cases Argued and Determined in the House of Lords 1, August 22, 1857, 272 at 273.
6. Law Times Reports: Containing All the Cases Argued and Determined in the House of Lords 1, February
27, 1858, at 310; 22 Justice of the Peace 93, February 18, 1858, at 101.
7. 6 Jurist ns 117, March 20, 1860, at 121.
8. See Sylvester Joseph Hunter, The Act to Further Amend the Law of Property (23 & 24 Vict c 38), with Introductions and Practical Notes, and Further Notes on 22 & 23 Vict c 35 (1860), 19, s 9.
9. See Re Lorenz’s Settlement (1861), 62 ER 433 at 434. Various textbooks and articles have been written about this subject. Among others, see Sylvester Joseph Hunter, The Act to Amend the Law of Property and to Relieve Trustees, 22 & 23 Vict. c. 35 with Introduction and Practical Notes (1859) at 92; “High Court of Admiralty” (1859), 8 Law Mag & L Rev Quart J Juris (3d) 351 at 370; 1 George Osborne Morgan and Edward Albert Wurtzburg, The Statutes, Rules of Court, and General Orders Relating to the Practice and Jurisdiction of the Chancery Division of the High Court of Justice and the Court of Appeal (6th ed, 1885) at 102; Sydney Edward Williams, The law and practice relating to petitions in Chancery and lunacy: with an appendix of forms
and precedents (1880) at 265 ff; Leigh Sagar, “Opinion, Advice or Direction of the Court”, Trusts & Trustees, Volume 7, Issue 5, April 2001, 15; CD Freedman, “The Opinion, Advice and Direction of the Court: Principles, Procedures and Judicial Blessings” (2013) 32 Est Tr & Pensions J 379. For a strong view that the summary application procedure gave the court a wide jurisdiction, see Roger Watters, A practical treatise on the law as affected by the statutes for the amendment of the law of property and relief of trustees (22 & 23 Vict, c 35, and 23 & 24 Vict, cap 38) including a review of the recent decisions on the subject of a testamentary charge of real estates with payment of debts (1862), 332–33.
10. Trustee Act 1893, 56 & 57 Vict c 53, s 51, schedule.
11. See The Hon Chief Justice Susan Kiefel AC, “Judicial Advice to Trustees: Its Origins, Purposes and Nature” (2019), 42 Melb UL Rev 993 at 997.
12. SBC 1881, c 12.
13. 1962 CarswellBC 112 (SC).
14. Re Pasminco Ltd (No 2), [2004] FCA 656 at para 3.
15. United Kingdom, House of Lords, Parliamentary Debates (Hansard), series 3, vol 145, 11 June 1857, col 1557, cited in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand, 2008 HCA 42 at para 62 [Macedonian Orthodox Community Church].
16. Holmes v Holmes, 2024 BCSC 510 at para 26.
17. Re Beacon Hill Park Trust, 2022 BCSC 284 at para 12, aff’d British Columbia v Friends of Beacon Hill Park, 2023 BCCA 83 at paras 2 and 3; British Columbia v Friends of Beacon Hill Park, 2023 BCCA 177 at para 2. In 2023 BCCA 83 at para 26 the court noted specifically that Re Royal Trust had held that what is now s 86 did not permit the court to interpret the trust deed but held that that was too narrow an interpretation of the section and the Court of Appeal went on to interpret the trust deed in issue.
18. Re Toigo Estate, 2018 BCSC 936 at para 16 [Toigo] (commented on by Caroly Hogan, “The Role of the Courts in a Trustee's Exercise of Discretion: A Comment on Re Toigo Estate” (2019), 38:4 ETPJ 309); Ferguson v McCormick Estate, 2023 BCSC 2041 at para 26 [Ferguson]; Watt v Health Sciences Association of British Columbia, 2020 BCSC 280 at para 95.
19. Holland ato Tauranga Energy Consumer Trust v Jonkers, [2021] NZHC 3469 at paras 96, 105.
20. Re PV Trust Services Limited (sub nom Re Honoris Trust), [2017] NZHC 2957 at paras 37-38 [PV Trust Services].
21. See Ireland v Retallack, [2012] NSWSC 1179:
53 In Macedonian Orthodox Community Church St Petka Incorporated v. His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, the High Court considered s 63. The plurality (Gummow ACJ, Kirby, Hayne and Heydon JJ) made some general points about the section.
Relevantly, these included, at 89, that there is no implied limitation on the power to give advice; at 90, that there are no implied limitations on discretionary factors and that the procedure is summary in character; at 91, that the advice is private, because its function is to give personal protection to the trustee and operates as an exception to the court's ordinary function of deciding disputes between litigants; and at 94, that a proper purpose for seeking judicial advice includes relief aimed at resolving doubts held by the trustee as to the proper course of action and protecting the trust and those entitled to it
54 In Re Perpetual Investment Management Limited [2011] NSWSC 133, White J, at [46], described the section as “beneficial legislation for the protection of trustees and should not be narrowly construed”. [emphasis added]
22. Ibid
23. Supra note 15.
24. In Macedonian Orthodox Community Church, supra note 15, the court laid out eight points relating to a s 86 application, summarized at para 10 of Coore v Coore, [2013] QSC 196. At para 11 of Coore the court provided seven points of “additional guidance”. A further 10 “sub-aspects” of those eight points are set out at para 103 of Wood v Wood (No 4), [2014] WASC 393. Space does not permit a full quote of all of those various points but anyone thinking of making a contested s 86 application should read them.
25. Louis Winkler Alter Ego Trust #3 v Winkler, 2019 BCSC 30 at paras 25–26.
26. Holland ato Tauranga Energy Consumer Trust v Jonkers, supra note 19.
27. National Westminster Bank Plc v Lucas, [2014] EWCA Civ 1632 at para 50, citing Public Trustee v Cooper (1999), [2001] WTLR 901 (Ch) at 922–924, which itself was cited in Toigo, supra note 18, at para 26, which was in turn followed in Re Fedje (2013) Alter-Ego Trust, 2024 BCSC 1624 at para 24. See also Ferguson, supra note 18 at para 27; Watt v Health Sciences Association, supra at paras 97–100.
28. Re LKM Discretionary Trust (2016), 20 ITELR 530 (Guernsey Royal Court) at para 16, cited with approval in Toigo, supra note 18 at para 27.
29. Lewin on Trusts (20th ed, 2023) s 39-093, note 360 and accompanying text; Re PV Trust Services, supra note 20 at para 2.
30. Supra note 27.
31. Supra note 27 at para 50.
32. Supra note 18 at para 29.
33. [2015] JCA 109.
34. It will be noted that the first test under Toigo, supra note 18, is not cited here. Perhaps it was felt that this was such an obvious test that it did not need to be mentioned? Or perhaps it is inherent in the second Otto Poon test?
35. There is an extensive discussion of momentous decisions in Lewin on Trusts (20th ed, 2023 and First Supp) at s 39-086 and following but Otto Poon is not cited.
36. [1893] 1 Ch 547, 62 LJ Ch 233 at 237.
37. See Garbera Estate, 2024 ABKB 185 at para 68, citing with approval Justice Wilkinson in Kozicki Estate v Kozicki Farms Ltd, 2004 SKQB 125 at para 11 (“The starting point for that analysis is that executors and trustees are personally liable for liabilities they incur to third parties - including legal counsel - in connection with the estate. They are entitled to be indemnified, or reimbursed, out of the estate for amounts to be paid by them only to the extent that such liabilities were reasonably incurred for the purpose of performing their responsibilities in administering or distributing the trust or estate”).
38. Frank Simonite Ltd v Guaranty Trust Co of Canada, 1967 CarswellMan 45 (QB), aff’d 1967 CarswellMan 50 (CA).
39. Lewin on Trusts, supra note 29, contains this discussion of the tests to be used in a Beddoe application versus a momentous decision:
48-140 A Beddoe application may often require the court to bless a momentous decision by the trustees to engage or not to engage in litigation. In considering the proper approach to take the court will examine the substratum of the decision and, if the court is being asked to approve a decision to engage or not to engage in litigation, it will take a more inquisitorial approach than it would on a Public Trustee v Cooper application where it is asked to bless a decision by the trustees. The court’s familiarity with the risks of litigation mean it is in a good position to judge whether it is sensible for the trust assets to be put at risk by engaging in the litigation in question. This paragraph was cited with approval in Re Eldoriange Trust, unreported, April 3, 2023, IoM HC at [32]. [emphasis added]
40. [2023] EWCA Civ 923.
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THE INNS OF COURT PROGRAM
By J. Kenneth McEwan, K.C.
Since the isolation necessitated by the COVID-19 pandemic, registration in the Inns of Court program has lagged. Recently, group leaders and supporters exchanged ideas to increase accessibility to the program and to re-acquaint the bar with the program and its merits. This note is in furtherance of those goals.
The Inns of Court program was founded in 1984 by Allan McEachern (then Chief Justice of the B.C. Supreme Court), with judges Henry Hutcheon, John Bouck and Josiah Wood. The program was designed to promote professionalism and competence at the bar through an appreciation of the role of counsel. The program recalled the tradition of the English inns where junior lawyers would meet with senior practitioners to discuss the legal field. Our version of the Inns of Court also follows the English tradition of the judges, and senior and junior barristers, sharing dinner as part of the sessions.
For the 12-week duration of the program, a session is held every two weeks for a group of junior barristers. Prior to dinner, a 90-minute discussion on a particular topic is led by several experienced members of the bench and bar, often including the Chief Justice. Topics include such matters as civility, the scope of client instructions (or who is the boss), conflicts, handling the media, lawyers behaving badly, and the role of counsel in discovery.
The focus of the sessions is on discussion, not lectures. Participants are invited to pose issues they have encountered, and discussions are wideranging. Since the program’s inception in 1984, countless participants have praised the mentoring provided by the program.
The program runs twice a year (starting in January and September) and is held at Charest Legal Solutions in downtown Vancouver. The program is generously sponsored by the Vancouver Bar Association. Attendance at the program provides up to nine hours towards annual Continuing Professional Development requirements (as well as ethics requirements) established by the Law Society of British Columbia.
At his recent welcoming ceremony, Chief Justice Skolrood expressed his view that the bar is an essential partner in developing workable solutions to the issues of delay and cost that plague the courts, noted that counsel’s role is to facilitate and not impede the resolution of disputes, and went on:
One of the ways that we can do that is by recommitting ourselves as a profession to mentoring the newest members of the bar, which has historically been one of the hallmarks of the legal profession. I think however, the opportunities for meaningful mentorship have been diminishing in recent times, something that has been observed both at the bar and within the court. We are fortunate in B.C. to have a number of organizations that provide excellent education programs, including CLEBC, the CBA, the Law Society, the Trial Lawyers Association and The Advocates Society. I would like to encourage these organizations to make your programs available to lawyers who might not otherwise have the opportunity to attend—lawyers who perhaps practice outside of the mainstream. These programs are also great opportunities to mentor those lawyers. In that vein, I will make a pitch for the Inns of Court Program, which has operated for many years with the specific objective of mentoring young lawyers. That program was originated by former Chief Justice McEachern and has long been supported by the courts.
In relation to the Chief Justice’s encouragement, Legal Aid BC (“LABC”) is now offering a bursary for qualifying registrants. The bursary covers up to half of the registration fee. More information can be found on the LABC portal.
Like the Chief Justice, the current leaders of the Inns of Court encourage junior barristers to register for the program and engage in the partnership we have with the bench, and the one among us as barristers. Our adversarial system creates an apparent tension between our duty to our client, and our duty to the court. As a personal observation, while those duties never conflict because the latter is overriding, there can be close calls, and the tendency of day-to-day practice can be to pull us, gravity-like, to favour the former such that constant vigilance and reflection is part of the office barristers hold. Engagement on issues of professionalism that bear on that tension are what the program offers to all of us, senior and junior alike.
QUINN STOKER*
By Celia Taylor
When the Human Resources Manager of Collins & White LLP announced that all lawyers and staff would have to attend a series of mandatory sensitivity workshops, the news was not received with enthusiasm.
Joyce Wu had been an exemplary Human Resources Manager for 15 years, and nobody quite liked to complain—not to her, anyway. But as it became clear that some of the workshops could take up a whole day, the general feeling of grim resignation began to blossom into open hostility.
“I like Joyce,” said Karen Howe on Thursday afternoon, to a few of the other partners in the break room. “But she just doesn’t understand what we actually do. I don’t have a day to spare on learning to be—I don’t know— woke. I don’t have an hour to spare on learning how to be woke.”
“It’s just because that kid complained,” said Matthew White, topping up his coffee. “You know, whatshername, the summer student. Kids like that make me worry about the future of the profession. I said to her once that I’d like a memo in my inbox by Monday. You know what she says? She says ‘Actually, I’m trying to keep my weekends free.’ Trying to keep my weekends free!” Matthew repeated, as though he still couldn’t quite believe it.
Matthew’s bio on the firm’s website declared that when he wasn’t in the office, he enjoyed sea kayaking and spending time with his family. But there were very few eyewitnesses who could remember ever having seen him do either.
“She was out the door every day at five sharp, too,” added Rob Singh. “She’d start getting her coat on at 4:55, whether she had more work to do or not.”
“What did she complain about?” piped up Benny Jenkins. Everyone swivelled to look at him.
Matthew’s father, Johnston White—the original White, that is—was fond of saying that the firm was just like a family. When Joyce interviewed new hires, she usually said the same. But administrative assistants were not supposed to insert themselves into conversations between groups of partners.
* This story won fourth place in the 2023 Advocate Short Fiction Competition.
There was no rule that said they couldn’t: they just didn’t. Like how nothing in the dress code said that employees weren’t supposed to wear bow ties with quirky designs, but everybody knew that Collins & White wasn’t a quirky bow tie kind of place.
Benny had been at the firm for a year. He was a very good administrative assistant. But he wasn’t very good at following rules that nobody spelled out to him.
“She said the work environment was toxic,” said Rob. “Or something like that?”
“The upshot is, tomorrow we have to go to something called ‘gender diversity training’,” said Matthew.
Benny tugged at his bow tie. It was lavender, with a pattern of rubber ducks. “Well,” he said, “I don’t mind.”
The partners looked after his retreating form with something approaching venom in their hearts. Of course Benny didn’t mind spending a day doing gender diversity training, they were all thinking. Benny didn’t bill by the hour.
On Friday morning, Joyce forwarded the introductory email from the facilitator who’d been hired to lead the gender diversity workshop to the rest of the firm. Matthew couldn’t hold back a snort when he saw that the email was signed,
Quinn Stoker (they/them)
“It’s grammatically incoherent,” Matthew complained. “Is Quinn a hive mind? Does Quinn have three heads?”
The staff of Collins & White assembled in the boardroom at 9:30. At 9:45, there was no sign of Quinn Stoker. By 9:50, the lawyers were growing restive.
“Right,” said Matthew at 9:53. “I’m running to Starbucks. I’ll be right back,” he added waspishly, in answer to Joyce’s noise of protest.
“If you see her in the lobby, will you bring her—er, will you bring them up?” said Joyce.
It wouldn’t be quite fair to say that Matthew planned in advance to greet Quinn Stoker incorrectly. He felt sure that when he saw this person, he wouldn’t be able to help saying, “Ah, Miss Stoker—” Or, possibly, of course, “Ah, Mr. Stoker,” if it turned out to be one of those boys with makeup on. So when he stepped out of the elevator, and found someone who could only have been the someone he’d been waiting for, he discovered that he was frankly nonplussed.
It had to be Quinn Stoker. Apart from anything else, this person had violet hair, and Matthew was sure that having eccentric hair and eccentric pronouns went hand in hand. Quinn Stoker was tall, and Quinn Stoker’s jaw was angular. But Quinn Stoker also had large, limpid eyes, with thick lashes to them, and Quinn Stoker had graceful hands and smooth cheeks. Matthew had been certain that a Miss or a Mister would pop out of his mouth instinctively, like a gumball out of a machine. Now he found that the longer he looked at Quinn Stoker, the more uncertain he felt about what Quinn Stoker actually was, and he couldn’t help feeling that this, somehow, wasn’t playing fair.
Consequently, instead of the smooth greeting he’d anticipated, he heard himself blurt out “You’re late.”
There was perhaps a fraction of a second’s pause before Quinn opened their eyes wide, and blinked at him in an apparent agony of contrition. “I’m terribly sorry,” they said, and Matthew was horrified to discover that their voice didn’t help in placing them at all. It was too high to be obviously a man’s voice, and too low to be obviously a woman’s. “I hope I haven’t kept you waiting too long?”
“Nearly half an hour,” said Matthew, coldly, turning back towards the elevator.
Quinn placed a hand on their breast. “Shameful,” they murmured repentantly, trotting along beside him. “I’ll do my very best to make up for it.”
The lawyers of Collins & White all had pretty good poker faces, but Matthew was an excellent poker player. When they arrived in the boardroom, and Joyce welcomed Quinn to the firm, he could see his own emotions reflected in his colleagues: they were staring at Quinn with subtle combinations of confusion and frustration and alarm. All except Benny, who was watching Quinn with the same bland smile he always wore. Matthew wondered, not for the first time, if Benny might be a bit slow.
Quinn was looking thoughtfully at the whiteboard Joyce had set up, with GENDER DIVERSITY WORKSHOP written on it. As Joyce concluded her introduction and led the office in a polite round of applause, Quinn stepped forward and swept a piercing gaze around the room.
“Gender!” they announced, in ringing tones. “What is it?”
The room sat silent and a little uncomfortable.
Quinn sighed. “Can I get paper and pens for everyone?” they said.
A box of pens and a stack of legal pads were produced and passed around.
“For the next 20 minutes, you will all write your analysis of the question ‘what is gender?’ You will all be graded on your responses. Your 20 minutes starts—now!” Quinn shouted, and, somewhat to Matthew’s surprise, everyone’s heads, including his own, bent obediently over their legal pads.
Quinn took their time grading each paper. They made themselves comfortable in their chair, and propped their feet up on the boardroom table. They tutted, and shook their head, and scribbled and crossed out words, and Matthew grew increasingly angry. This was absurd. “Maybe, while you’re marking,” he said, finally, “some of us could go and get some actual work done—”
Quinn looked up, and fixed their eyes on him, and Matthew suddenly realized why nobody was complaining about the ridiculousness of all this. There was something alarming about those eyes—hypnotic, almost. Quinn held his gaze for a few seconds, and the back of Matthew’s neck started to sweat.
Matthew White couldn’t remember the last time his neck had started to sweat.
“I’m finished,” said Quinn, briskly, standing up. “And I’m sorry to say that all of you were incorrect.”
“Incorrect!” Karen cried, indignantly, and Quinn turned their gaze on her. And Matthew saw what he couldn’t ever remember seeing before: Karen Howe squirmed. But she persisted. “I thought you were going to tell us that gender was an abstract construct, or something like that,” she said. “How can somebody’s analysis of an abstract construct be correct or incorrect?”
Quinn nodded, looking faintly approving. “That’s good,” they said. “But you still need to release your preconceived ideas. Open your mind. Practice lateral thinking. I’m here to help you do that. That’s why your next task— will be to take your essay—”
The lawyers began to look a little more alert. They knew about lateral thinking. They knew about improving and re-writing a first draft.
“And fold it into a paper hat,” Quinn finished.
There was a slightly stunned silence.
“Lateral thinking,” Quinn repeated. “Release your preconceived ideas. This is step one.”
Slowly, one by one, the lawyers bent back over their papers. Matthew felt frustration rise in him again.
“I don’t know how to fold a paper hat,” he said, loudly.
Quinn blinked those eyes at him. “One of the top minds at one of the top firms in the city, and you don’t even know how to fold a paper hat?” they said.
Several of his colleagues glanced up at him, including Benny, who looked at him with something like pity on his round, pink face. Scowling furiously, Matthew bent over his task.
Ten minutes later, his paper was a lot more crinkled, but looked no more like a hat than it had when he’d begun. He looked around the room, and slid his chair closer to Rob’s.
“Opposing counsel on Hawkins is waiting for my response,” he grumbled, under his breath. There was no response. “Rob?”
“Oh, sorry,” said Rob. He held up his hat. “I got kind of into this. When I was a kid, I used to make paper hats and pretend I was Jughead Jones.”
Matthew stared at him, appalled. “Did you hear what I said?”
Rob shrugged. “It’s not the end of the world if he doesn’t hear from you today.”
Matthew’s jaw tightened, and then, in one swift movement, he crunched his piece of paper into a ball. “Excuse me,” he said to Quinn. “I’m not doing this.”
Quinn came over to him. “Well, it isn’t easy,” they said, kindly. “Why don’t you move on to the next part of the activity, for now? Look—” they pointed. “Benny and Karen have already finished their hats.”
Matthew followed Quinn’s finger, and felt his mouth fall open. “The next part of the activity is—” he said. “Is—”
“Somersaults down the hallway,” Quinn confirmed. “This will prepare you to invert the way you look at things, besides helping you release your tension.”
Matthew stared. Benny was somersaulting across the carpet as though he’d been doing it all his life. Karen began by launching herself awkwardly forward with a look of acute misery on her face—but as she toppled out of her fourth attempt, she giggled.
Actually giggled!
Matthew drew himself up to his full height. “No,” he said, flatly. “I won’t.”
Quinn turned their gaze on him, full blast. “Well, maybe we can find something easier for you to do. Can you stand on your head?”
“No,” said Matthew, firmly. He would not let this…this person’s eyes get to him.
“Well, then, what about hopping on one foot?” Quinn suggested. “You can hop on one foot, surely? The final step of the activity is to hop on one foot around the whole office, singing Yes, We Have No Bananas. But I suppose I could let you skip straight to it.”
“I don’t know Yes, We Have No Bananas,” said Matthew, through gritted teeth. His neck was starting to sweat again.
“The Night Paddy Murphy Died?” said Quinn. “I Am The Very Model of a Modern Major General? Dancing Queen? Come now, everybody knows Dancing Queen!”
“You love that song, Matthew,” called a voice, and Matthew whipped round to see Johnston White, sitting up from a somersault with a slightly squashed paper hat jammed on his head. “Remember? You used to get up on the kitchen table and sing it for me and your mom into a hairbrush.”
Never before had the necessity of his father’s retirement been impressed upon Matthew so strongly.
Still, though, as he rounded the third corner and approached the reception area, Matthew thought maybe—just maybe—he was beginning to understand what Quinn Stoker meant. Maybe he was releasing his tension. When half of your brain was focused on keeping your balance on one foot, and the other half was focused on warbling “...young and sweet, only seventeen…” it was hard to worry about things like billable hours, or that Hawkins email, or—
Or the fact that a stranger was standing in the reception area, apparently waiting to be met by someone; except that the only person there to greet newcomers was a senior partner, hopping precariously and belting out ABBA.
Matthew managed to catch himself on the edge of the desk before he toppled forward. “My apologies,” he gasped, trying to maintain some semblance of dignity. “There’s—we’re doing a—did you have a meeting booked for today?”
“Um,” said the stranger. “I’m so sorry I’m late. I wrote the date wrong in my calendar. But I’m supposed to be leading a workshop here. I’m Quinn Stoker.”
Nobody was sure exactly how or when the false Quinn Stoker left the office. Most people didn’t even notice them go. Karen thought they’d excused themselves to use the washroom, and slipped away via the service elevator. Rob figured they went somewhere else in the building—to their dentist appointment on the floor above, or to their accountant’s office on the floor below, or wherever it was they’d actually been intending to go when Matthew found them at the directory. Benny’s suggestion—that they’d been some kind of trickster spirit, who had simply vanished—was taken as a somewhat feeble joke, and greeted with polite laughter. But then, nobody could come up with a reasonable explanation for how not-Quinn had convinced such a dignified and highly paid group to spend their morning doing something so manifestly absurd.
Nobody retained much information from the real Quinn’s workshop, and most of the lawyers at Collins & White are even more convinced of the inutility of sensitivity training than they were before. At least, they say they are. But lately, Rob’s been leaving work in time to pick up his kids a lot more often than he used to. And Karen has started pausing to chat with Benny when she arrives in the morning. And sharp-eyed court clerks have noticed that Matthew has stopped rolling his eyes when other lawyers say their pronouns in their introductions.
Probably not-Quinn’s workshop had nothing to do with any of that. But Benny’s still grateful. He really enjoyed making that paper hat.
THE WINE COLUMN
By Michael Welsh, K.C.*
The most precious wine is produced upon the sides of volcanoes. Now bold and inspiring ideals are only born of a clear head that stands over a glowing heart.
—Horace Mann
Give me silence, water, hope; Give me struggle, iron, volcanoes.
—Pablo Neruda
VOLCANIC WINE
Hiking volcanoes and drinking wine. It may sound like a dangerous combination, but done sequentially it gives physical and sensual pleasures. We did both this last fall in the south of Italy and while there sampled the local wines that grow on the volcanic soils around Italy’s most famous two volcanoes.
* 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.
Vesuvius overlooking Pompeii
Etna from Taormina
The wines most often associated with Italy come from areas like Tuscany, Piedmont, Abruzzo and Veneto. I am going to discuss Campania, Sicily and Vulture, focusing on the unique characteristics of wine from grapes grown on and around volcanoes. Not surprisingly, when wine writers describe these wines, the word that most often jumps out is “minerality”. My reviews below follow that trend. It cannot be helped. That is a main characteristic of wines from grapes planted in volcanic soil.
Although volcanic earth represents only one per cent of the total surface of the planet, the grapes grown in this type of soil are vast and varied. According to master sommelier John Szabo, who has been described as a wine business “vulcanist”: “What surprised me most was the number of indigenous grapes — true regional specialties — that have been preserved in volcanic terroirs.”1
Before talking about some of the unique grapes in those regions, here is a bit more information on the soils themselves. Volcanic soils are any type that form directly from the weathering of volcanic rocks, otherwise known as “extrusive igneous” rocks. They come in many types, from lava in all of its forms, like jet-black basalts, to other fragments expelled from a volcano’s vent such as one sees at the summit of Etna, to pumice and volcanic alluvium that blows and settles in valleys.
First to the vineyards surrounding Mt. Vesuvius on the Bay of Naples in Campania. The volcano that buried ancient Pompeii and Herculaneum, now both substantially excavated and fascinating but eerie to visit, has become an area of impressive viticulture, focused on grape varieties indigenous to the region, both white and red. It has its own DOC, Vesuvio.
The other local DOP is “del Sannio”. The main white varieties are Volpe, Verdeca, Falanghina and Greco, most often blended although as a single varietal wine Falanghina del Sannio is prevalent. Falanghina is an ancient Italian white grape, reportedly of Greek origin, and it is believed that Falanghina is the grape variety behind Falernian, the most famous wine of Roman antiquity. We enjoyed bottlings from a couple of wineries. All these whites pair well with seafood dishes as they tend to be fresh, with ripe orchard and tropical fruit such as peach, pear and pineapple, mixed with mineral notes and moderate acidity. They are generally made for early consumption.
Local red grape varieties include Piedirosso, Olivella and Aglianico, again found as single varietals or in blends. Some of these, particularly Aglianico, have aging potential. The best examples tend again to have a strong mineral backbone along with notes of smoke, dark brambleberry fruit, white pepper and sometimes some cinnamon and other baking spices. Of course, pairing
them with Neapolitan pizza is an obligatory choice, although only one of many. Again, they are difficult to find in British Columbia, and the only Aglianico I could locate for this article is from another lesser known volcanic area east of the Campania area, Vulture in the Basilicata region. We have yet to travel there, so to quote:
The Italian wine region of Aglianico del Vulture surrounds the long extinct volcano, Monte Vulture in the Basilicata region. The wines of Aglianico del Vulture are made from, as the name suggest[s], pure Aglianico – a deep, red variety often dubbed the Barolo of the South. … The volcanic soils of the Vulture region are dark, packed full of minerals and free-draining. The wines, themselves, are rich, red and concentrated with thick skins, deep tannins and high acidity despite the Mediterranean heat which can make less heat-resistant wines overly jammy. Although the wines of Aglianico del Vulture often need a little bit of time in the cellar to smooth out the tannins, at their best, they display rich notes of smoke, chocolate and dark cherry as well as leathery tones of game and smoked meat.2
Also difficult to locate back here in British Columbia (let me know if you find it) is the famous Lacrima or Lacryma Christi (del Vesuvio), both red and white. The name, somewhat whimsically, means the “tears of Christ of Vesuvius”. A couple of local legends give the backstory to the name.
One such legend relates the simple story of when Jesus ascended into heaven, and on casting his eyes over the beautiful Bay of Naples he wept tears of joy, which fell upon Mount Vesuvius causing vines to grow.
Another tells of Christ weeping onto the land over the casting out of Lucifer and the fallen angels. In a variation of this tale, angry that they were forced to leave, the fallen angels took a piece of heaven with them which landed on Mount Vesuvius, leading to tears of sadness from Jesus. An earlier version attributes the tears of joy to the Roman god of wine, Bacchus.3
We had a particularly lovely evening dining al fresco in the Marina Grande in Sorrento sampling various Campania wines, including some white and red Lacryma Christi. We took advantage of more samplings of other local wines, including lovely local Aglianico, while in the culinary mecca of Naples.
On south to Sicily.
We spent about two weeks on the eastern and southern side of Mt. Etna, and of course ascending that highest active volcano in Europe, going from coastal temperatures hovering just below 30°C to 3°C on top of the mountain. When in Catania we explored the Etna wine region that surrounds the mountain. On our first excursion we ran into thick fog as we travelled up from the city to a very modern and beautiful winery, Cantina la Contea, which normally has a spectacular view over the Mediterranean, although not on that day. So we enjoyed the wine shop and restaurant. The weather was better on another day when, after climbing the famous mountain, we visited a couple of wineries, Enoteca del Etna and Tenuta Papale.
The geography around the Catania municipal region is fascinating. Most of the island of Sicily is a composite of limestone, chalk and gypsum (akin to the soils of Burgundy) and very ancient. But then, still eons back, a subterranean volcano erupted in the Ionian Sea and built, eruption upon eruption, until it adhered to the island and expanded to create the Catania region and to become the looming and still frequently erupting mountain of today. When we were there in November we walked along over volcanic stones that were from an eruption only three months earlier. The guide pointed to a flagged pole in the distance and told us his office had been there before that eruption, but was now covered in several meters of volcanic rock, and he pointed to a crater where, several years back, a ski lodge and lift had existed, as Etna is a ski area in winter (a risky one apparently).
You can easily see the differences between the black volcanic rock and soil of Catania and the contrasting whiter limestone, chalk and gypsum found around Siracusa to the south. The locals call Etna “the mother” for the fertile agricultural lands it birthed from those volcanic soils.
Benjamin Spencer, winemaker and author of The New Wines of Mount Etna, believes that volcanic soils can contribute an “exciting tension, edginess and savory quality” to the wines they produce. “A lot of people brand this sensation in the mouth as minerality, but it is a wine’s reflection of the abundance of stone, metal and nutrients in the soil,” he says.4
La Contea in fog
Tenuta Papale as evening breaks
The vineyards tend to sweep around the eastern side of the volcano, with the higher vineyards some of the highest in the world. Catania is to the east, Siracusa to the southeast, and Taormina and Messina to the northeast. The best wines generally accepted to be from plantings on the southeast. The wineries we visited were in this area.
Etna’s multiple eruptions have created a rich, dark soil brimming in minerals like magnesium, copper, phosphorus and iron as well as others, they also tend to comprise of ash and pumice making them exceptionally freedraining. Another advantage of the volcanic soils is their natural resistance to phylloxera; Etna like a handful of wine regions around the world – some of which are also volcanic – still has some pre-phylloxera vines as a result.5
Again the varieties are long indigenous to the region. The main whites are sole varietal bottlings or blends of Catarratto, Zibibbo and Carricante. The principal red grapes are Nerello Mascalese (sometimes compared to a Nebbiolo or Pinot Noir in type) and Nerello Cappuccio (also called Nerello Mantellato). Both reds and whites are known for their “grip” of acidity from the cooler higher elevations at which they are grown. The whites have citrus or orange and lemon with some herbal and minerality in their structure, and the reds are generally of a medium intensity with berry, spice and tealike tannic profiles, again with that minerality expected from volcanic soils. Generally the premium wines from these varietals have geographical indications (DOC) of Etna Bianco and Etna Rosso, while many other are IGP Terre Siciliane. In more recent years some traditionally made (versus Charmat-style like Prosecco) sparkling wines of high quality are also being made. Those we tried were impressive, but I expect only to be had if you travel to Sicily.
Offerings of all these wines in British Columbia are not extensive, particularly in the government liquor stores. This is especially so for Campania wines. Sicily fares a bit better, although sparser again when it comes to Etna wines. In most cases the prices here are ridiculously high compared with those in their home country. As the wines noted as only sold in private stores may be hard to locate, try others you may find from these same grapes or appellations.
CAMPANIA AND VULTURE WINES
LA GUARDIENSE JANARE FALANGHINA DEL SANNIO LA VENDEMMIA 2023
DOP Falanghina del Sannio, Campania #863613 $20.99
As noted earlier, the Falanghina grape is a staple of Campania and is as refreshing as a sipper and great with seafood, a staple of the Naples region. La Vendemmia refers to a vintage or harvest of a particularly good year.
This wine has aromas of white grapefruit and some lemon lime with wet stone mineral and light floral notes, and flavours of white peach, honeydew melon, more lemon citrus and a hint of tropical fruit with a lifted and long finish that displays more of that grapefruit, melon and citrus. This means it will pair well with many seafood dishes, or white fish to chicken (perhaps thighs done with some roasted peppers, onion and garlic), a cheese tart, or a hearty legume or similar salad—or to riff on pizza, one I like with ricotta, pear, walnuts, some pecorino cheese and arugula.
BASILISCO TEODOSIO 2020
DOC Aglianico del Vulture #783498 $24.99
As noted this wine is from the Basilicata region, although Aglianico is widely grown in Campania, and we enjoyed a rich Campania version with a marvellous meal at a Michelin-rated restaurant in Naples. This Vulture one is organic and a big wine at fourteen per cent alcohol. It is dry but rich, with black fruit (mostly cherry, plum and black currant) and tobacco on the nose, and some oaky notes. The full palate has the same black fruit and some raspberry, leading to a long finish with bright tannins and some ash. A wide range of Italian meaty pasta dishes, or an Osso Bocco or a Florentine steak are all good food pairings.
SICILIAN WINES
CRUDO CATARRATTO ZIBIBBO 2023
IGT Terre Siciliane, Italy #629055 $19.99
“Crudo” means raw, clean and fresh and the winery suggests this is a perfect match for seafood, raw or cooked, such as you can find in Sicilian cuisine. The wine is a blend of two local grapes, Catarratto and Zibibbo, grown on the slopes of Mt. Etna. The vibrant nose has lemon-lime, white peach, some white blossom and an undercurrent of wet stone. The flavours on the tart but full palate are more lemon-lime, slightly green pineapple and peach with streaks of minerality and a tart but slightly off-dry medium long finish. It is akin to an off-dry Riesling. It is a bargain at this price. Other good food options are Chinese, Korean and Vietnamese cuisines.
DA VERO CATARRATTO 2019
IGT Terre Siciliane, Italy #244143 $9.79
This older organic version has more pronounced minerality plus some lanolin notes mixed with its floral and fruity components. From the northwestern slopes of Mt. Etna, it was fermented and aged in stainless to preserve
the fruit. The aromas are of white blossoms, lemon and lemon rind along with the above-mentioned mineral and lanolin. The flavours on the very dry palate are of white peach, lemon citrus, some pear, green melon and wet stone. It has a relatively short but bright mineral-driven finish. It is available at private stores such as Spirits of Mt. Seymour in North Vancouver at $18, and Everything Wine where it is about $20. I found it at an Angry Otter outlet for $9.79, a terrific bargain. Good food options would be seafood such as clams or mussels on pasta (Pasta alle Vongole) or a richer white fish such as halibut.
BAGLIO ORO GUARI TERRE INZOLIA VENDEMMIA 2022
IGT Terre Siciliane, Italy #427883 $27.89
From the Inzolia grape that is found in Sicily, as well as in other regions such as Tuscany (where it is named Ansonica), Calabria and Sardinia, this is a pale straw yellow with aromas of lime, green peach, some lemon blossom, a bit of green pineapple and mineral in the background. The flavours are red apple, some pear, lemon-lime and flint. It has a rounded body and a bright finish of light tropical fruit driven with more minerality. Again it is noted as coming from a superior vintage. It is available in private wine stores like Angry Otter, or as with a number of these wines, check out wine lists at Italian restaurants, including Sopra Sotto locations in the Vancouver area. Food options again are white fish and shellfish dishes like steamed prawns with drawn butter, or a bowl of warm mixed olives.
NO COMPROMISE CARRICANTE ORANGE 2023
IGP Terre Siciliane, Italy #192961 $19.99
This organic orange expression of the Carricante grape with a 12.5 per cent alcohol level is lightweight in profile and made for enjoyment with a meal. Its fragrant nose displays orange blossom, light strawberry and a bit of honey, and its bone-dry palate shows orange peel, a mix of other citrus including lemon and grapefruit, and streaks of minerality. The finish is a bit short but refreshing. An orange- or lemon-glazed and grilled chicken breast with roasted vegetables would work well for this food wine, as would Thai food or a selection of hard cheeses.
PIETRODOLCE ETNA ROSSO 2022
DOC Etna Rosso, Sicily, Italy #520585 $39.99
Pietrodolce makes this Etna Rosso and also an Etna Bianco (selling at Angry Otter for a mere $72.79). From Nerello Mascalese grapes grown at 800 metres on the north slope of Mt. Etna, and with a 14.5 per cent alcohol level,
this wine is surprising light and elegant, with well-integrated spices, particularly some peppery notes, almost Gamay-like. The aromas are of red berries, particularly red currant and raspberry along with some red cherry and some green tobacco, all backed with wet stone and graphite. The flavours are of the same red berry fruit on a medium weight palate leading to a tart prolonged finish with light but persistent tannins and more of that stone. It received 91 points on Vinous. For food pairings, a mushroom risotto, richer fish like swordfish or tuna, spicy seasoned and skewered meats, or again roasted mixed vegetables such as onions, peppers and zucchini with garlic will all work well.
IL PASSO NERELLO MASCALESE 2019
IGP Terre Siciliane, Italy # 699835 $24.99
From Vignetti Zabu, this is a fuller bodied but less alcoholic Nerello Mascalese. Ruby red in colour, there is bright berry fruit (brambleberry, red currant, black raspberry) on the nose wrapped with some flint and spice. The mid-weight palate shows similar fruit with some oak and cigar box, a bit of black tea and a spicy finish. Another great buy. Try it with pasta with rich sauces, lamb shanks, or a herbed roast chicken. We had it with roasted eggplant stuffed with lamb, peppers and tomatoes.
ENDNOTES
1. Peter Weltman, “Volcanic Wine 101: What to Know About the Booming Category”, Food & Wine (28 September 2023), online: <www.foodandwine. com/wine/volcanic-wine-mount-etna>.
2. “The Wild World of Volcanic Wines”, WineSearcher, online: <www.wine-searcher.com/select/ volcanic-wines>.
4. Vicki Denig, “Understanding Volcanic Soils in Wine”, Wine Enthusiast (28 September 2022), online: <www.wineenthusiast.com/basics/advancedstudies/volcanic-soils-wine-science/?srsltid=AfmBOooLJXPhNxhodMcLV9lBHLmREFIma_J5JS-p4L53WIoDxVhWyIs>.
5. Ibid
NEWS FROM
BC LAW INSTITUTE
By Marie Ong*
Where can the work of the British Columbia Law Institute (“BCLI”) respond to a need? What issues are ripe for law reform? These sorts of questions are continuously at the forefront of BCLI’s organizational mind as it continues—now in its 27th year as an independent law reform body—the work of modernizing and simplifying laws to better respond to the needs of people and communities in British Columbia.
Envisioning fresh directions for the law can be challenging. One ongoing challenge is weighing what spaces to go into or what subjects to take on. After all, BCLI’s reports and resources are written to make a difference, such as bringing an issue to light, developing a solution to a problem, or casting renewed sense of relevance, purpose or vision to an area of law.
Two projects which highlight BCLI’s commitment to address current legal issues are BCLI’s trauma-informed legal writing guide and housing law reform project.
THE NEED FOR TRAUMA-INFORMED LEGAL WRITING
BCLI is in its final stages of completing a Trauma-Informed Legal Writing Guide (the “Guide”). By the time you are reading this article, the Guide will be published and available online on BCLI’s website.
The Guide is meant to be a foundational resource for anyone working in or around the justice system. It is informed by the belief that traumainformed legal writing is more effective than traditional legal writing and it highlights current practical tools and best practices for crafting legal documents that are sensitive to the experiences and needs of those affected by trauma.
* Marie Ong is a staff lawyer at BCLI.
I will not attempt to summarize the Guide here, with its wide range of practical writing tips and insights from individuals experienced and knowledgeable on the topic of trauma who graciously provided their input to the Guide. Instead, I hope to briefly explain the reason behind this initiative and why all lawyers, regardless of practice area or year of call, should consider reading the Guide and adopting a trauma-informed approach in their practice.
Individual trauma can be defined as resulting from “an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual’s functioning and mental, physical, social, emotional, or spiritual well-being”.1
Trauma experiences are not rare or exceptional. A 2024 survey conducted by Statistics Canada found that almost two-thirds of Canadians reported experiencing at least one traumatic event.2 For lawyers, it is very likely that you are currently engaging with clients, witnesses, opposing counsel and colleagues who have experienced some sort of trauma in the past.
Trauma is also not just personal, but collective and systemic. It is experienced and perpetuated by individuals and experienced by communities and perpetuated by systems. The justice system has itself been a perpetuator of trauma. This is particularly evident in the ways the law has inflicted— and continues to inflict—harm and injury to Indigenous individuals and communities.
As the Guide explains in detail, a trauma-informed approach is a necessary mindset for competent and ethical lawyering. Lawyers do not have the responsibility to be experts in trauma or to provide mental health services to their clients or others. They do, however, have a responsibility to recognize and appropriately respond to the prevalence of direct and vicarious trauma in the culture of law by minimizing risks of traumatization and retraumatization.
Thanks to the work of trailblazing leaders like Myrna McCallum (host of the Trauma-Informed Lawyer podcast and creator of the Justice as Trauma Conference), there is a greater awareness of trauma-informed lawyering and a growing call to action for legal professionals to make every effort to do no further harm. However, there remains a critical need for lawyers and the legal community to do their part in implementing trauma-informed practices to contribute to a more effective, just and equitable legal system. For those wanting to learn more about trauma-informed practices, the Trauma-Informed Legal Writing Guide offers a helpful starting point.
HOUSING LAW ON THE HORIZON
It goes without saying that housing is a current, pressing issue at both the provincial and federal level. At times, it can feel impossible to avoid the ongoing discussion about the lack of affordability, access and security of housing, whether it is in the headlines, in conversations with others, or in consideration of one’s personal budget or future living in a certain place.
As the dream of home ownership appears to be increasingly out of reach for Canadians, many people are looking to alternative solutions that are not freehold ownership. One 2024 survey, for example, found that one third of Canadians are exploring non-traditional ways of entering the housing market.3
In response to the growing need and potential for alternative housing models to help expand access to homeownership for middle income households, BCLI is undertaking a housing law reform project with the support of the Notary Foundation. The overriding goal of this project is to develop recommendations to support modernized or new legal models for land and property to increase accessible, affordable and secure housing in British Columbia.
This year, BCLI plans to release a primer that will provide an overview of the different types of existing and emerging ownership models in British Columbia and each type’s unique legal considerations. This resource is aimed at providing a practical, big-picture guide of the legal landscape for housing ownership for legal practitioners, mortgage brokers, lenders and members of the public.
BCLI intends to also produce reports recommending specific legal reforms concerning alternative housing models based on research, expert input and public engagement, including a report with recommendations for legislative changes to reform the law pertaining to leaseholds in 2026. This work will be done in close collaboration with legal practitioners and housing experts.
To follow along with this project and BCLI’s work generally, please check out our website and sign up for our newsletter at <www.bcli.org>.
ENDNOTES
1. Substance Abuse and Mental Health Services Administration, “Concept of Trauma and Guidance for a Trauma-Informed Approach” (2014) at 7, online: <ncsacw.acf.hhs.gov/userfiles/files/SAM HSA_Trauma.pdf>.
2. Government of Canada, “Posttraumatic Stress Disorder Among Adults in Canada” (7 May 2024), online: <health-infobase.canada.ca/ptsd-survey/>.
3. Re/Max Canada, “Alternative Home Ownership Models in the Canadian Housing Market” (February 2023), online: <blog.remax.ca/canadian-housingmarket-alternative-ownership-trends/>.
Available at Kurbatoff Gallery, 2435 Granville St., Vancouver
Visit the website: kurbatoffgallery.com
“East Side Crowler” by Kathy Traeger, Acrylic on Canvas, 36'' x 24'', 2024
NEWS FROM CLEBC SOCIETY
By Adam Simpkins*
NEW UPDATES FROM THE CLEBC PUBLICATIONS LIBRARY
Land Title Practice Manual
Published under the authority of the Land Title and Survey Authority (“LTSA”), this indispensable manual provides a comprehensive look into British Columbia’s land title system. Designed for anyone dealing with land title matters, it includes vital guidance for reducing LTSA defect notices, complete with annotated legislation, updated commentary and forms. Key 2024 updates cover First Nations’ title registration, execution of instruments under the Land Title Act and Property Law Act, and expanded directions on remote witnessing, reference plan deposits and more.
British Columbia Civil Trial Handbook (7th Edition)
Essential for litigators, this handbook guides you through every stage of a B.C. Supreme Court trial—from client intake to post-judgment matters. It includes succinct explanations of trial procedures, checklists and sample documents to streamline trial preparation. Highlights of the seventh edition include updates to all chapters, new precedent letters for document preservation, expanded discussion on motions to strike pleadings, and revised guidance on witness testimony. Whether you are in the office or the courtroom, this resource offers quick, practical support.
Due Diligence Deskbook
Ideal for lawyers acting on behalf of purchasers or lenders in business acquisitions, this B.C.-centric guide outlines the searches and investigative steps required for thorough due diligence. The 2024 update reflects the continuing migration of registry searches to BC Registries and Online Services,
* Adam Simpkins is the marketing manager at the Continuing Legal Education Society of British Columbia.
new processes for Bank Act Security Registry searches, and important changes to corporate governance, environmental legislation and the Modern Slavery Act. It also addresses updates to the speculation and vacancy tax, transportation of dangerous goods, and fisheries regulations.
These books are available now in print or via an online subscription.
To view all the titles in CLEBC publication library, visit <www.cle.bc.ca/ publications>.
THANK YOU, 2024 CLEBC CONTRIBUTORS
As we close the chapter on 2024, the CLEBC team would like to express our deepest gratitude for everything you have made possible in the last 12 months. Your expertise, time and unwavering dedication have been the cornerstone of our success.
Each one of you has brought not just knowledge but passion to your roles—whether as course chairs, speakers, authors or members of our editorial boards. It is through your efforts that our programs and publications continue to meet the evolving needs of the B.C. legal community.
In 2024, we thrived in our hybrid learning environment, offering courses online and in person to reach more learners than ever. Your collaboration has helped us master this approach, ensuring quality and engagement, no matter the format.
With your support, our publications department has continued to shine as well, delivering valuable new resources to the legal community. Together, we have continued to launch brand-new publications and kept our existing resources fresh and relevant. Your contributions have been pivotal in ensuring that CLEBC remains a trusted source of knowledge for legal professionals across the province.
We would also like to thank our dedicated board of directors, whose guidance has been especially invaluable.
To everyone who has shared their time and talent with us, we extend our heartfelt gratitude. Your contributions have enriched our work and strengthened our impact.
It has been an honour to work alongside you, and we look forward to another extraordinary year together in 2025—whether we are connecting virtually or face-to-face.
LAPBC NOTES
By Derek LaCroix, K.C.*
CULTURE CHANGE IN THE LEGAL PROFESSION
The legal profession is a noble and important part of the fabric of our society. It serves the vital function of maintaining the balance between a society and the individual. I am grateful to be part of this community. We can be of service and be richly rewarded in many ways.
However, it has become apparent that there are some serious problems within the community. Research in the United States, published in 2016,1 showed a shocking level of distress among lawyers. This was followed up by a major research project in Canada, published in 2022,2 that confirmed the level of distress and refined this to include a more detailed breakdown of the incidents of distress. That report also made some suggestions and recommendations for change.
The 2016 and 2022 research reports indicate unequivocally that there needs to be a change in the culture of the legal profession. While the Lawyers Assistance Program is busy helping those who are experiencing distress and provides education and training to help individuals maintain well-being, this is not enough. When these individuals recuperate and get “well”, they return to their work and are immersed in the same culture that did not work for them before. The culture change in the legal profession has to be systemic.
We need a movement to change our culture. This movement can be fueled by bringing together key players from the various stakeholder groups for a deep inquiry into the purpose of legal practice and the obstacles to individual, and group, well-being. Together we must determine the changes that need to be made.
* Derek LaCroix, K.C., is the executive director of the Lawyers Assistance Program of British Columbia (“LAPBC”).
There is no simple solution. Culture is complex and deeply embedded; systems become entrenched and self sustaining unless actively and purposefully changed. No one person or entity has, nor can have, all the answers, or even all the questions.
We can do this! I have seen enormous changes in the legal profession in the past 50 years. Some changes have been very beneficial. For example, with the recognition that mental health and addictions are important issues that need to be looked at, the acceptance of people getting help for these problems has greatly increased. With education and a recognition of the need for diversity, positive changes influencing equity and inclusion are occurring. We have begun looking at promoting and supporting alternative ways of practising law and now we are looking at future changes such as the use of artificial intelligence.
The legal profession is full of people who want to help make society better. Wherever there is a perceived problem there are people and groups who jump in to deal with that problem. But that is not enough, either.
In order to make real, lasting and effective change, we all need to join together to create a movement to look deeper and wider and to make changes that will impact all the various kinds of issues and create a kinder, more compassionate, healthier profession that is more effective, more efficient and more sustainable.
We need to approach this with humility. Humility leads to awareness of how much you know and how much you do not know. It opens us to be curious, more willing to consider other perspectives and ideas.
Persisting in old ways that do not work and insisting it is the “right” way is hubris and willful blindness. We need to admit uncertainty and doubt.
A movement brings together people from diverse perspectives to explore, experiment, create prototypes or alternatives, and carry out solutions to solve problems, in this case to make the legal profession healthier in all ways. The value of a movement lies less in agreeing on strategies or tactics, than in getting as many sectors as possible moving in the same direction, learning from each other and coming up with new creative ideas and ways of being. I hesitate to name the various stakeholders because I will undoubtably miss some. If I miss your organization, please let me know; let all of us know. There has been a great and important increase in affinity bar organizations such as the Federation of Asian Canadian Lawyers, South Asian Bar Association BC, Women Lawyers Forum, Aboriginal Lawyers Forum, Indigenous Bar Association, BC First Nations Justice Council, Association of Legal Aid Lawyers, BC Paralegal Association, BC Civil Liberties Association, West Coast LEAF, and also, CBABC, TLABC, the Law Society of
BC, the very large law firms, all large, medium and small law firms, Allard Law, UVic Law, TRU Law, Legal Services of BC, and BC Legal Management Association (apologies to those I have missed).
I know lawyers can organize—can get together to make changes and to make a difference. Now is the time to lead for the common good and to make significant change in the culture of the legal profession. It is up to us; we cannot depend on the government or any one entity or organization to make meaningful systemic change in our profession.
If this call to action resonates with you, please step forward as a representative of any of the above-named stakeholders, and any I missed, including individual practitioners, to be part of this leadership circle for change. Although I may assist by coordinating the inaugural meeting of this change initiative, I am not suggesting that I, or LAPBC, lead this initiative. Together we will create a container to do the challenging and rewarding task of community development and change.
The legal profession is a cornerstone of society. As we change priorities and attitudes toward ourselves and others, ripples of compassion and kindness will be felt throughout society. Join the movement today.
ENDNOTES
1. Patrick R Krill, Ryan Johnson & Linda Albert, “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys” (2016) 10 Journal of Addiction Medicine 46, online: <journals.lww.com/journaladdictionmedicine/Full text/2016/02000/The_Prevalence_of_Substance_ Use_and_Other_Mental.8.aspx>.
2. National Study on the Health & Wellness Determinants of Legal Professionals in Canada – Phase I 2020–2022 Research Report, online: <EN_Preliminary report_Cadieux et al_Université de Sherbrooke_221024.pdf>.
ЖЖЖ
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
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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 Zefferelli’s Spaghetti Joint 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*
ALLARD LAW PROFESSOR ISABEL GRANT RECEIVES UBC’S HIGHEST FACULTY HONOUR
On January 13, 2025, the University of British Columbia announced that Allard Law Professor Isabel Grant has been named a University Killam Professor.
The University Killam Professor designation is the highest honour UBC can confer on a faculty member. The award recognizes exceptional faculty members who are extraordinary teachers and researchers, who are leaders in their academic fields and who have received national and international recognition.
“It is a tremendous honour,” says Grant. “UBC has been my intellectual home for more than three decades and it’s very meaningful to have those years of hard work acknowledged in this way.”
Grant is an internationally acclaimed academic whose work has transformed legal debates and reforms in Canada and worldwide. During her time at Allard Law, much of her scholarship has focused on issues of male violence against women and girls, with a focus on homicide and sexual assault and, most recently, the intersection of ableism and sexism in criminal law. Throughout her career, she has courageously addressed challenging topics that impact the most vulnerable in both her research and advocacy work.
Grant’s work has been cited extensively by the Supreme Court of Canada and has shaped the law in areas including homicide, criminal harassment and sexual assault, resulting in changes that have made sentencing more responsive to the experiences of women and people with disabilities.
* Heidi Wudrick is the communications manager at the Peter A. Allard School of Law.
“Isabel’s exceptional record of research is an inspiration to me and to countless other scholars,” says Allard Law Professor Dr. Janine Benedet, K.C., who has published extensively with Grant. “She has made a significant impact toward the development of a criminal law that is fair, functional and feminist.”
Most recently, Grant’s work has focused on the discriminatory impact of Track 2 medical assistance in dying, which is available to people with disabilities even where their natural death is not reasonably foreseeable. She has worked with the disability community to challenge this law on the basis that it violates the Charter-guaranteed right to equality for people with disabilities. “Given that women with disabilities disproportionately have their lives ended under Track 2, this work is a natural extension of my earlier work on homicide and sexual assault,” says Grant.
Over the course of her career, Grant has worked with feminist and disability organizations on more than 20 interventions in the Supreme Court of Canada and other appellate courts.
“Law professors have the privilege of being able to lend their expertise and legal skills pro bono to real cases that develop the law and impact people’s lives in important ways,” Grant says. “I take a lot of satisfaction from the work I have done with feminist and disability organizations. This work is informed by my research and in turn enriches my scholarship.”
In addition to her research and advocacy work, the University Killam Professor designation recognizes Grant for her exceptional teaching. “In my courses, I try first to ensure that students understand what the law is and how it has evolved because one cannot reform the law until one understands it,” says Grant. “Once students have a good grasp of what the law is, it is important to challenge them to think about why particular choices were made by legislators or judges—and who wins and who loses from those choices.”
Grant is one of Canada’s leading criminal law scholars. In addition to teaching first-year Criminal Law at the Allard School of Law, she has, over the years, developed new upper-year specialized courses in the Law of Homicide, Principles of Sentencing and Mental Health Law.
For Grant, one of the most rewarding parts of teaching is having the opportunity to guide students as they progress from first-year students with limited knowledge of the law to graduates prepared to take on influential roles in society. “I have been so fortunate to work with countless wonderful students over the years in my classes, as graduate students, as research assistants and in our upper-year mooting program,” says Grant. “I take a lot of joy in seeing former students make a difference in the world—as judges, professors and advocates.”
Grant has also taught and mentored students through her role as a coach for the Gale Cup Moot for over 35 years. Each year she helps prepare a team of four Allard Law students to compete with top law students from across the country in a mock appeal.
“Supervising a competitive moot team has been a highlight of my teaching at the law school,” says Grant. “Watching Allard students argue in the finals in a courtroom at the Supreme Court of Canada two years ago was a very proud moment. Those kinds of one-on-one mentorship opportunities are my favourite part of teaching and they allow me to develop relationships with students that often continue long after they leave the law school.”
Eva Kapnoudhis, an Allard Law graduate and member of the law school’s 2023 Gale Moot team, says Grant's dedication to her students is truly exceptional. “As our moot coach, and despite her many other commitments, Professor Grant put in countless hours and encouraged us every step of the way,” says Kapnoudhis. “What’s more is that she continues to champion her students beyond their time working with her. For someone as brilliant and busy as she is, Professor Grant is remarkably generous with her time, and I know the many students who have worked with her feel honoured to have her continued support.”
Grant joined Allard Law in 1987. She was the fourth woman to join the law school in a tenure-track position, and she has received numerous distinctions over the course of her career. In 2014 she received the Georges A. Goyer, QC Memorial Award for Distinguished Service for her service to the community. In 2020, she was awarded UBC’s Killam Teaching Prize, and in 2021, she was elected as a Fellow of the Royal Society of Canada. In 2024, she received the Allard Law Alumni Association’s Award for Research. Grant is also the first law professor at the University of British Columbia to be named a University Killam Professor.
“Congratulations to Professor Grant on this well-deserved recognition,” says Allard Law Dean Ngai Pindell. “Her dedication to advancing justice— particularly for women and people with disabilities—has made a significant contribution to legal scholarship and practice in Canada. We’re immensely proud to celebrate her as the law school’s first University Killam Professor.”
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
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CALENDAR
UVIC LAW FACULTY NEWS
By Katie McGroarty*
SAVE THE DATE FOR UVIC LAW’S 50TH ANNIVERSARY CELEBRATION
The University of Victoria Faculty of Law is marking a significant milestone in 2025 as it celebrates its 50th anniversary. Since its establishment in 1975, UVic Law has grown into one of Canada’s leading law schools, renowned for its innovative programs, commitment to social justice and strong community engagement.
To commemorate the occasion, we are excited to host a special anniversary event on October 25 and 26, 2025. We cannot wait to welcome you back to the Fraser building and to our newly opened wing to reflect on our past accomplishments and future aspirations. More information about our anniversary weekend will be sent out this spring.
As a part of our 50th anniversary celebration, we will be launching a special project highlighting the diverse and impactful careers of our graduates. We invite you to share your journey since graduating from UVic Law and be a part of our alumni profile project. To participate, visit <www.uvic.ca/law/ 50years>.
ANIMALS & SOCIETY RESEARCH INITIATIVE
Over the past three issues of the Advocate, UVic Law has showcased the work of various research centres and initiatives within the faculty. This month, we turn our attention to the interdisciplinary work undertaken by the Animals & Society Research Initiative (“ASRI”) to promote critical thinking on interspecies relations.
Established in 2017, ASRI aims to deepen our understanding of the complex and multifaceted relationships between humans and animals. By chal-
* Katie McGroarty is the communications officer at the UVic Faculty of Law.
lenging anthropocentric and speciesist perspectives, ASRI seeks to promote a more harmonious and less violent interspecies society. ASRI’s work brings together students, faculty, independent scholars and community members through various scholarly and public-facing events.
One of ASRI's most recent projects is the Animal Law Documentary Series, a UVic-produced set of scholarly documentary films that explore the current field of animal law and policy through the eyes of four youth active in animal advocacy. This open-access series is designed to educate high school and undergraduate students, as well as the general public, about the legal and societal issues surrounding animals.
“Our goal with the Animal Law Documentary Series is to inform and inspire. By bringing the stories of young activists to the forefront, we hope to demonstrate the power of youth in driving legal and societal change for animals. This series is a call to action for the next generation of legal professionals to engage with these critical issues about interspecies justice and compassion and make a difference," says Maneesha Deckha, Academic Director of ASRI, director of the documentary series, and Professor and Lansdowne Chair at UVic’s Faculty of Law. Professor Deckha’s work with ASRI is supported by the Brooks Institute for Animal Law Rights and Policy.
Titled A Deeper Kindness – Animal Law and Youth Activism, the series consists of six episodes, each focusing on different aspects of animal law and featuring the voices of young activists who are making significant contributions to the field. The first episode introduces viewers to the basic principles and history of animal law and explores how animals are treated within legal systems. The subsequent episodes focus on companion animals, animals in research, farmed animals, wild animals, animal sanctuaries and careers in animal protection. The series includes interviews with legal scholars and practitioners who discuss the challenges and opportunities in advancing animal law and examines the role of young people in advocating for animal rights. The episodes also work to highlight the ways in which animal welfare and environmental protection are interconnected and how legal frameworks can address both concerns simultaneously.
By showcasing the efforts of young activists and providing a platform for their voices, the series aims to empower the next generation of legal professionals and advocates. It serves as a resource for educators, students and anyone interested in the intersection of law, society and animal welfare. The 20-minute documentaries are available on ASRI’s YouTube channel. Each episode has an accompanying educators’ guide to help instructors incorporate the content into their curriculum. The guide outlines learning outcomes and recommended discussion questions, and features quizzes, questions and resources for further exploration.
"The Animal Law Documentary Series is an open-access resource where leading animal law scholars and professionals discuss why and how we can dramatically improve the legal system for animals,” says Deckha. “Practitioners can view the series in one comfortable sitting to quickly learn the basics of the burgeoning field of animal law and interspecies justice and apply insights to their practice. Educators can use the short videos to teach informatively and compassionately.”
In addition to the Animal Law Documentary Series, ASRI hosts events and lectures to catalyze critical thinking about human-first mindsets in law and in society at large. ASRI’s Annual Lecture in Animal Rights Law and Policy will be on March 14 this year, presented by Pamela Frasch, Professor of Law at Lewis and Clark Law School. The lecture series will be celebrating its five-year anniversary and is the first ongoing lecture in Canada focused on Animal Rights Law. ASRI also hosts the ongoing Distinguished Lecture Series, where experts deliver talks on topics such as protecting non-human animals from ecological destruction and the legal implications of eroding boundaries between humans and animals. All past lectures are archived on ASRI’s YouTube channel. To stay connected with ASRI’s research and events, sign up for its monthly newsletter at <www.uvic.ca/law/asri>.
TRU LAW FACULTY NEWS
By Ryan Gauthier*
TRU Law faculty members and students ended 2024 with a busy November and December. In between marking exams and term papers, faculty members found time to research and write. Meanwhile, students found ways to engage with both the legal community and the local community in the midst of their studies.
TRU LAW FACULTY CITED BY THE SUPREME COURT OF CANADA
The Supreme Court of Canada decision of Sanis Health Inc. v. British Columbia, 2024 SCC 40 cited two works of Professor Craig Jones, K.C. The court cited a book co-authored with Jamie Cassels, The Law of Large-Scale Claims: Product Liability, Mass Torts, and Complex Litigation in Canada (2005), and an article “The Case for the National Class” (2004). The court endorsed two principles that Craig first advocated for 20 years ago. First, Craig argued that courts should not focus on litigative autonomy to the detriment of efficiency and access to justice. Second, Craig contended that existing constitutional principles of order and fairness provided a sufficient basis for multi-jurisdictional class actions.
The Supreme Court of Canada also cited Assistant Professor Mark Mancini in two decisions. The decision of Auer v. Auer, 2024 SCC 36 cited Mark’s paper “One Rule to Rule Them All: Subordinate Legislation and the Law of Judicial Review” (2024). Meanwhile, the court also cited Mark in its decision of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43,
* Ryan Gauthier is an associate professor at the TRU Faculty of Law. He spoke at various conferences in 2024. His food ranking of each city is (1) Philadelphia (arguably the best cookies in the United States), (2) the online symposium he did from his parents’ house in Las Vegas (home cooking for the win!), (3) Trondheim (surprisingly good hamburgers), and (4) Baltimore (only because he is not wild about seafood).
refencing his paper, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022). In both cases, the court used Mark’s work to explain the proper approach to the interpretation of statutes and subordinate legislation, emphasizing the text of the statute.
ONGOING FACULTY RESEARCH EVENTS
In November 2024, University of Saskatchewan Assistant Professor Colton Fehr, a former faculty member of TRU Law, returned to TRU Law to give a presentation titled “Constitutional Status of the Provocation Defence”. In his talk, Colton examined Parliament’s narrowing of the provocation defence by requiring any provocative act be an indictable offence punishable by five years’ imprisonment. He noted that this narrowing has prompted constitutional challenges. Colton explained why the challenges lack merit, and why the “reduced volition” principle underlying a provocation claim ought not be constitutionalized.
Professor Robert Diab has been exploring the world of artificial intelligence (“AI”). He published an article examining the rising popularity of AI in The Conversation, and spoke on the Inter Vivos podcast about AI regulation, legal education and the future of legal practice.
Assistant Teaching Professor Murray Sholty published an article in the Canadian Bar Association’s Aboriginal Law Forum’s “Forum Drum”. In the article, Murray reflected on his time as a member of TRU Law’s inaugural class, and TRU Law’s ongoing work on reconciliation.
TRU LAW STUDENT COMMUNITY ENGAGEMENT
In addition to being academically active, TRU Law students have also been active in the local community. In November, two TRU Law students who are also Canadian Armed Forces reserve members attended events around Remembrance Day. Lieutenant(N) Austin Ferguson (3L) represented the Royal Canadian Navy at the official start of Kamloops’ poppy campaign. Captain Gordon Elliott (2L) helped drop the ceremonial puck at the Kamloops Blazers’ Military Appreciation Night.
In November, five TRU Law students attended the Sport Lawyers Association’s Fall Symposium. The symposium, which took place in New Orleans, Louisiana, focused on technology and its role in sports. Jennifer Cordiero (2L), Noah Stothart (2L), Jacob Lacasse (2L), Jenna Steinman (3L) and Tyler Nobbs (3L) represented the TRU Sports & Entertainment Law Club at the symposium.
THE ATTORNEY GENERAL’S PAGE
By the Honourable Niki Sharma, K.C.*
Hello again! I am thrilled not only to be reappointed as Attorney General, but to be back writing for the Advocate and connecting with lawyers throughout British Columbia. I look forward to sharing some of the hard work that the Ministry of Attorney General has been doing since my last note, and what the next four years might have in store for British Columbia’s legal community.
AVOIDING JORDAN STAYS AND INVESTING IN TIMELY ACCESS TO JUSTICE
Over this term, the Ministry will continue prioritizing the rights of both victims and the accused to fair and timely access to justice. It is imperative that cases be determined on their merits and not be dismissed because of unreasonable delay. We are already seeing results from the work the BC Prosecution Service has been doing to reduce systemic delays and improve efficiencies, with a general downward trend of fewer judicial stays in criminal cases provincially prosecuted in British Columbia, from 16 in 2017, to 8 in the first 11 months of 2024.
Our courtrooms must have enough resources to ensure timely access to justice. The Ministry’s Court Services Branch is working hard to ensure that critical front line service delivery positions are fully staffed to avoid courtroom closures and delays in matters due to sheriff or court administration staff shortages. The branch is also leading and supporting court modernization initiatives focused on improving access to justice and improved client experience.
We have been advocating to the federal government for a full complement of justices at the B.C. Supreme Court and Court of Appeal. We are
* The Honourable Niki Sharma, K.C., is the Deputy Premier and Attorney General of British Columbia.
grateful for the substantial progress on judicial appointments and being close to a full complement (for the first time in decades).
INDIGENOUS JUSTICE CENTRES
In February 2020, the province endorsed a First Nations Justice Strategy, which was Indigenous-led by the BC First Nations Justice Council (“BCFNJC”), to better address the overrepresentation of Indigenous peoples in the justice system and Indigenous children and youth in care.
Strategy 4 commits the province to establishing 15 Indigenous Justice Centres (“IJCs”) across British Columbia within five years. IJCs are a key part of the province's commitment to implement the B.C. First Nations Justice Strategy. They take a holistic approach to client and community wellness by facilitating connections to supports such as Elder and Knowledge Keeper guidance, housing and employment services, in addition to providing legal advice, information and representation.
Ten physical IJCs were opened in Vancouver, Victoria, Nanaimo, Surrey and Kelowna in 2023/24, and in Burns Lake/Hazelton, Cranbrook, Kamloops, Port Hardy and Williams Lake in early 2025. A virtual IJC has also been established for those unable to access a physical centre. When the Fort St. John IJC opens this spring, the province will have fulfilled its commitment.
Going forward, the Ministry will work to increase access to culturally relevant justice services and improve justice outcomes for Indigenous peoples. We will continue to listen to Indigenous partners, learning from their experiences and working together to make our justice system more equitable for everyone.
FAMILY LAW, LEGAL AID AND FAMILY JUSTICE EXPANSION
We will continue to work on modernizing the Family Law Act to ensure that the legislation best meets the needs of families in British Columbia. I encourage everyone to read our intentions paper online, which sets out our anticipated recommendations, including in the areas of family violence response, parentage and child-centered decision making.
We also recognize that the justice system can be difficult to navigate alone, especially for those experiencing family violence. In February 2024, we announced $29 million over three years to help Legal Aid BC expand its services. This enabled the opening of two new Family Law Centres in December 2024. This multidisciplinary trauma-informed clinic provides legal representation and other services that are necessary to stabilize a person’s legal situation. The Family Law Centre has two physical locations in
Victoria and Surrey, and dedicated mobile and virtual services available in Kamloops, Kelowna, Prince George, Nanaimo and Duncan. Further financial eligibility adjustments are scheduled for April 1, 2025, and 2026, which will make it easier for more people throughout British Columbia to access fast and affordable legal assistance.
Last year also saw the expansion of the Early Resolution Process (“ERP”). Building on existing family justice services, ERP gives people involved in such issues early access to information, referrals and services, leading to a better understanding of their legal and non-legal issues, and increasing the likelihood of a resolution being reached through a consensual dispute resolution processes. Early resolution registries have been established in Port Coquitlam, Surrey and Victoria, and have been a resounding success. We have seen an increase in both the number of families reaching resolution out of court, and in readiness for those who did proceed to court. This has resulted in a substantial reduction in new family court cases and overall demand for court time.
The Ministry will continue building on this in 2025, by expanding ERP to all Lower Mainland and Fraser Valley Provincial Court registries, benefitting even more families in British Columbia.
THE STANTON REVIEW
We continue to see too many instances of gender-based violence in British Columbia, leading to women, families and whole communities dealing with the devastating impacts of such violence.
That is why in May 2024, I asked Dr. Kim Stanton to conduct an independent review of the legal system’s treatment of victims and survivors of sexual and intimate partner violence. This review is an important step toward creating meaningful change and improving how our legal system treats these cases. An update on the review was posted in September last year, followed by an issues paper in November; the final report is expected in May this year. We look forward to reading Dr. Stanton’s report and reviewing her recommendations.
I would like to end by reiterating the honour that it is to serve another term as British Columbia’s Attorney General. Thank you for all your hard work, and for partnering with us as we strive to ensure our legal system is fair, equitable and efficient, improving the lives of everyone in British Columbia.
Peter Ballem died peacefully, from an aneurysm, on November 4, 2024. He was 75.
Called to the bar of British Columbia in 1974, Peter’s name as a capable lawyer spread quickly, when he had been in the practice just four years. Greenpeace retained him to be on the ice floes off Newfoundland, where its members were protesting the cruelty of the annual “harvest” of seal pups.
The only advice Peter received, before leaving here and heading east, was to be sure not to get arrested. Readers who knew Peter will not be shocked to learn that this advice was disregarded. He was arrested, and then tried, in the Newfoundland Provincial Court, for aiding and abetting in the interference of the seal hunt. Peter and his Greenpeace client, Patrick Moore, barely fit together in the prisoner’s dock of the small courtroom.
The prosecutor was the formidable Clyde Wells, later premier of Newfoundland, and later still, Chief Justice of Newfoundland. Clyde experienced some difficulty with Peter, in cross-examining him. The trouble seemed to be that Peter kept giving answers that Clyde did not want to hear. Clyde objected to the answers. The judge did not buy that. His ruling was perhaps invented for Peter, christened by the judge as the “fly-in-the-ointment rule”—if a question elicits an unanticipated but nonetheless responsive answer, that is the fly-in-the-ointment for the questioner.
A report of the trial in Newfoundland appeared on the news website, The Tyee, and offered an example of the exchanges: Lawyer Peter Ballem had never before been charged with a criminal offence. During cross-examination, Wells characterized Ballem as a radi-
cal troublemaker using his lawyer status as a cover to advance an unlawful cause. “The cause I’m dedicated to, Mr. Wells,” said Ballem, “is that every citizen of Canada gets a fair shake.”
It was deserved, when the judge acquitted Peter, as he did, that he also commended him for his principled and loyal defence of his client, who was most unpopular in those parts, at that time. It is generally thought now that Peter was charged only because he secured a permit from the federal government allowing Greenpeace members to be out on the ice.
At the same time that Peter was defending Greenpeace in Newfoundland, he was appearing as associate commission counsel in British Columbia to the McKenzie Royal Commission on the British Columbia Railway. His offer to stand down from working for the commission pending his fate in Newfoundland was summarily dismissed by its chairman, Mr. Justice Lloyd McKenzie. Peter did sterling work for the commission, including as its “advance man” calling at stops along the railway to advise local organizations of the commission’s purpose, and assisting with submissions. His formidable presence was particularly welcome on the visit to Fort Nelson, where many were correctly forecasting the commission would advise abandonment of the line north of Fort St. John.
Those two briefs, above, paint a revealing picture of Peter in his first ten years at the bar. He was a natural advocate. His ready smile, kind yet mischievous eyes, the rugby player frame…, he was winning in a courtroom before he even started to speak. When he did speak, he understated his legal intellect with his down-home presentation. Even when you were against him, and came in second, you had to admire Peter’s almost cordial demolishment of your case. And after, in the hallway, he was your new pal. He embodied what Shakespeare said in The Taming of the Shrew, “And do as adversaries do in law, strive mightily, but eat and drink as friends.”
Like the rest of us, Peter also had a life outside of the practice. He was an athlete: a strong skier, the captain of the Quebec men’s rugby team and game for any lively undertaking.
He started life in Hamilton, Ontario, where he was born in 1948, but he grew up in Montreal, while spending his summers in Nova Scotia, where his cousins still reside. His undergraduate degree was from McGill, where he earned his B.A. degree in 1970, and in 1973, he graduated with his LL.B. degree from the University of Toronto. Peter’s biological father, John Ballem, Q.C., in Calgary, was, like his son, a strong advocate, and one could see in Peter the courteous courtroom manner of his father.
Hardship befell Peter in 1984. He severely injured himself while diving at a poolside party held, ironically, to welcome his admission to a new law
firm. The accident took Peter out of the practice for 29 years. No one ever heard him complain. With enormous effort, he was able to requalify at the bar, and resume practising in Victoria in 2013. He never flagged in his enthusiasm in looking out for his clients’ interests.
Peter provided endless support to the Lawyers Assistance Program of BC. Here are the words of its executive director, Derek LaCroix: I have known Peter since we were both young trial lawyers. I got to know him better in the early ’80s, when we were both working at recovery. When I started with LAPBC, Peter was always willing to help. He began to come regularly to our lawyers’ recovery retreat, and was always a steady presence. He moved back to Victoria, and helped the volunteers and the lawyers in the 12 step recovery there. I could depend on him to take care of any suffering lawyer I sent his way. He was humble, compassionate, and warm, and would help them get involved with others in recovery usually by taking them to a 12 step group. When he went back to PLTC, at age 65 or so, he was an inspiration to the young students. His returning to the law at his age, and having suffered a serious brain injury back in 1984, is a testament to his love of the law, his humility, and, that he got through PLTC, to his brain power.
In his circumstances from 1984 onward, others might have shriveled. In his own way, Peter thrived. He worked as a rancher, even as a lumberjack. He was a natural father because he gave his love and support so readily. He and his first wife, Penny Ballem, were parents to Kate Ballem, now Chase, a Rhodes Scholar, who is now a speech pathologist and behaviour analyst. Peter and his second wife, Tracy Ballem, were parents to Georgia Ballem, who is now a doctor practising family medicine in Vancouver, and Michael Ballem, who works in the oil and gas industry.
After the accident, Peter lived for years in the Okanagan. There he had the good fortune to meet Alison Paine, who was at the time a broadcast journalist with CBC, working as a news reporter and interviewer. Alison moved to Victoria, in about 2009, to serve as an assistant deputy minister in the provincial government. Today she is a mediator and conflict management specialist with the provincial government. Peter wisely accepted Alison’s lead, and moved with her to Victoria, where they merged their independent characters into a lasting and loving partnership. Ali’s three sons, Julian, Declan and Nigel, became like sons to Peter as well.
Peter Ballem made the very most of life, as a family man, as a friend, and during his all-too-brief time as a barrister.
George Macintosh and Martin Taylor
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Elin Sigurdson was appointed as a judge of the Supreme Court of British Columbia on November 8, 2024. Hearing the news, her daughter Ingrid immediately raised some good questions. What if a friend or family member comes before you in court? What if you are assigned a case that you worked on at your firm? And so Justice Sigurdson began her career on the bench by laying out the law of recusal to an astute 11-year-old. Her 8year-old, Annika, was concerned with whether Elin would have a new office (yes) and whether there would be snacks there (no: mice).
Elin was born and raised in Vancouver, a city she loves. She earned her B.A. at the University of British Columbia, focusing on literature and religious studies. During and after her undergraduate studies, Elin had her first job in law as an administrative assistant with Sugden, McFee & Roos, where she worked for five years supporting lawyers she came to deeply admire, as well as learning skills fundamental to litigation practice: photocopying and cerloxing.
She attempted to take the LSAT secretly, hoping to save herself from the overwhelming excitement of her parents. Imagine how former Justices Lynn Smith and Jon Sigurdson feel now.
She applied to law school and was admitted to several faculties across the country, but it was not the right time. She deferred admission and instead travelled in Thailand and Cambodia. She then lived with her sister in Sydney, Australia where Elin found a temp job with a workplace safety agency. Returning to Vancouver, Elin took on a position as an administrative assistant at the BC Centre for Disease Control, which aligned with her interest in public health. Along with her day jobs, Elin also spent her evenings, in
Sydney and in Vancouver, seeking out open mic nights and cafes to perform her singer-songwriter repertoire.
When she eventually landed on the right time for law school, Elin chose UBC. There she competed on the Wilson Moot, which focuses on the law of equality, building lifelong friendships with her team members and eventually returning to serve as the team coach with Alison Latimer, K.C. (as she then was) for several years while in practice. She finished her law degree studying abroad at the University of Leiden, Netherlands, a country she has visited many times with her husband, Chris Tenove, then a scholar of the International Criminal Court in the Hague. (Chris is now a scholar of many more things, including election interference and online civility, while serving as a director of the Centre for the Study of Democratic Institutions at UBC.)
At law school, Elin came to admire Katrina Pacey, a brilliant law student only a year ahead but already using her new legal skills to try to improve the lives of marginalized people. Elin joined Katrina in her work aimed at improving safety in the lives of those engaged in sex work. She and other law students helped to collect affidavits, asking street-based sex workers to describe how the law was affecting their work and their lives and whether law reform could improve their safety, dignity and human rights. This grassroots knowledge collection became the basis for the claim brought in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General). That case led to the Supreme Court of Canada’s principled reworking of the test for public interest standing. Today, the case is an important precedent that helps to ensure that the viable constitutional claims of vulnerable people can be heard in court. It has been relied on by migrant farmworkers, refugees, prisoners and the mentally ill.
Elin clerked at the British Columbia Court of Appeal for Justice Richard Low, an experience and relationship she cherished. At Halloween, Elin and her fellow clerks were invited to participate in the annual Pumpkin Carving Charity Auction at the courthouse. The clerks assumed (wrongly) that they should submit a law-themed carving. The other pumpkins were submitted by multi-talented courthouse staff, and they were all Halloween-themed and technically brilliant. Elin and the clerks decided to submit pumpkins that represented what were then the three standards of review in administrative law: one “correct” pumpkin (classic triangle eyes and nose, simple mouth); one “reasonable” pumpkin (features present but askew, à la Picasso); and finally a patently unreasonable pumpkin (smashed in, guts pulled out, no discernible features). The entry was an allusion to the leading case on the subject: Pushpumpkinathan. 1 Unfortunately, very few
attendees at the pumpkin auction that year seemed to get the joke, though at least two (erudite) judges laughed. The clerk pumpkins raised zero funds for charity. With respect, the clerks submit that these pumpkins remain the clearest explanation of pre-Dunsmuir standards of review.
Elin has never been one to resist an extra-curricular activity, especially where it involves a creative performance. While articling at Fasken Martineau, Elin’s crop of students were presented with the (mandatory) opportunity to perform a skit for the firm’s Christmas party. Many articling students have been known to dread this time-honoured hazing ritual. What is the opposite of dread? That is what Elin felt. She wrote, produced, costumed, directed and performed in a series of skits, songs, videos and dances. She gleefully recorded all her billable hours in December that year under the firm’s code for “professional development”. (She did develop professionally that month—had her profession been musical theatre.)
Music continues to be central to Elin’s life. She still plays with a multifamily band, the Buckaroos, alongside her sister Krista Sigurdson and brother-in-law Colin Brumelle, and lifelong friends and musical soulmates, brothers Mark and Ian Beaty. Krista, who holds a Ph.D. in medical sociology, is a university instructor and is engaged in municipal and provincial politics. She is Elin’s best friend, in music and all other endeavours. Their love of music has always been fostered and shared with their dad Jon, former lead singer of the most famous (only?) judicial band, the No Reserves.
After articling, Elin started working at Arvay Finlay with Joseph J. Arvay, Q.C., a lawyer whose impact on the state of constitutional rights in Canada cannot be overstated. Elin learned from Joe that the best lawyers never stop thinking about their cases, and that they are fearless in their advocacy. Joe would have been thrilled to see Elin appointed.
In 2011, Elin completed an LL.M. at the University of California, Berkeley, joining Chris who was pursuing graduate studies at Berkeley’s Department of Rhetoric. She then practised for several years with JFK Law LLP. With the JFK team, Elin’s work in helping to manage a complex and lengthy consolidated multi-party judicial review proceeding in the Federal Court of Appeal became stuff of legend. The court formalized the role by appointing Elin’s team as “responsible person”, though the task was informally termed “cat-herder.” While she was at JFK, the firm’s successful pro bono work in representing Bobby Lee Worm, an Indigenous woman who experienced an extreme form of solitary confinement, was recognized by the BC Civil Liberties Association.
Elin joined Mandell Pinder LLP in 2016, where she was devoted to litigation of Aboriginal, constitutional, environmental and administrative law
issues alongside her remarkable colleagues. She was part of a team that participated in what may be the longest trial in British Columbia so far (513 days). Elin had the privilege to work on groundbreaking litigation with her colleagues at Mandell Pinder. They successfully argued the appeal of Southwind v. Canada virtually at the Supreme Court of Canada in the midst of the COVID-19 pandemic. There they established that assessment of equitable compensation for breaches of fiduciary obligations by the Crown to Indigenous peoples must be consistent with the honourable nature of the relationship that was breached and properly compensate for the interest that was lost. She also had the privilege of working on Dickson v. Vuntut Gwitchin First Nation, which had the Supreme Court of Canada apply s. 25 of the Charter for the first time, and consider the role of the Charter in Indigenous self-government. In 2023, Elin was appointed King’s Counsel.
Elin was known in the firm for two critical roles: first, her dedication to positive collaboration with team members and mentorship of junior lawyers; and second, her dedication to closing down the dance floor at the firm’s annual holiday party.
Elin’s commitment to access to justice is evident in the long list of pro bono matters she has taken on. She also found time to serve on the board of West Coast LEAF for eight years, two of those as board president. Elin’s volunteer duties have carried on a legacy started by her mother, Lynn, who was a founding member and centrally involved in early Charter equality cases.
Elin’s charming young daughters, Annika and Ingrid, keep her exceedingly humble, all while learning from her about being an authentic, caring and principled woman in a demanding profession and a complex world. Elin has a loving extended family and large circle of lifelong friends, and is sustained and lifted up by those relationships. She is known to be a person of utmost integrity and discretion. In fact, her husband often complains that she does not share with him even innocuous information told to her by mutual friends. Chris has argued that there is a marital exception to the bounds of confidentiality. Elin dismissed his claim. He was of course thrilled to be the only person to know about her appointment to the bench, for three whole days before the public announcement.
Elin’s compassion, humility, good humour and deep sense of fairness will both enhance the integrity of the judiciary and protect the interests of all British Columbians.
ENDNOTE
1. See Pushpanathan v Canada (Attorney General), [1998] 1 SCR 982.
The Honourable Judge Michael Libby
Michael Libby was sworn in as a judge of the Provincial Court of British Columbia on September 27, 2024. His resident chambers are in Surrey. Those who know and worked with Mike will agree his appointment was the perfect next step for him, in a long and successful legal career spanning 31 years.
A true “B.C. Boy”, Mike was born in Vancouver and obtained his bachelor of arts from UBC (1990) and his LL.B. from UBC as well (1993). Despite his B.C. roots, Mike also has a connection to Winnipeg, Manitoba, as he met his wife Sharon there shortly after law school and enjoyed many trips back with Sharon to see her family.
Mike’s legal career seems to have truly come full circle: in the summer before and the summer after the first year of law school, he worked in the B.C. Provincial Court registry at 222 Main Street as a court file runner. He then articled with Paine Edmonds and Bolton & Muldoon, and continued thereafter practising criminal law at Bolton & Muldoon until 2000, as both defence counsel and ad hoc and special Crown counsel. In 2000, Mike moved to the commercial litigation group at Stikeman Elliott, and in 2003, he moved to Church & Company, where he practised commercial, employment and criminal law until 2006.
In 2006, Mike wanted to expand his skillset to practice insurance defence litigation and joined Dolden Wallace Folick LLP (“Dolden”), where he represented insurers and their insureds in the defence of commercial and specialty liability claims and the prosecution of subrogated actions. His practice focused on the defence of liability claims against all manner of professionals, commercial hosts and contractors, as well as the defence of large property loss claims, catastrophic injury and employment law matters. Mike also acted as insurance coverage counsel, advising insurers regarding their insurance coverage obligations and litigating insurance coverage disputes with policyholders and other insurers.
Twelve years later, Mike was widely known as skilled senior counsel with a full insurance defence practice, senior partner of Dolden, and the firm’s national managing partner for five offices. As the managing partner, Mike demonstrated a natural skillset of understanding the complexities of a growing law firm, with an ability to assess the diverse needs of lawyers and staff and how to execute well-reasoned decisions, all with a smile. Mike was and
remains extremely well-liked by Dolden’s lawyers and staff for his kindness, compassion and gentle humour.
Despite his busy practice and firm management responsibilities, Mike found time to co-author three legal texts: Sports and Recreation Liability Law in Canada; The Annotated British Columbia Motor Vehicle Act; and Liquor and Host Liability Law in Canada. He was also a regular contributor to the Serving It Right Program Manual, which is utilized by British Columbia’s Responsible Beverage Service Program to train and certify all persons in British Columbia who will be involved in the sale or service of alcohol.
Mike has a profound commitment to volunteering in the legal community. For the past 18 years, he has served as the program coordinator and faculty member for the British Columbia Inns of Court Program. The Inns of Court Program was founded in 1984 by former Chief Justice Allan McEachern, with judges Henry Hutcheon, John Bouck and Josiah Wood, to promote professionalism and competence. As program coordinator and faculty member of the Inns of Court Program, Mike educated and mentored 50 junior barristers each year in the areas of professionalism, competence, ethics, mentorship and collegiality at the bar. Having served for 18 years, Mike is the longest-serving program coordinator in the program’s history. He is currently working with the group chairs to update the program content, ensure faculty succession planning and implement greater diversity in program presenters to better reflect the makeup of participants.
Mike was a guest lecturer for the litigation component of B.C.’s Professional Legal Training Course, has served as a volunteer judge for UBC law school’s competitive moot program, and is a past member of the executive committee of the Vancouver Bar Association. He has also been an occasional guest lecturer on the law and legal issues in the public school system, the BCIT Architectural Program, at USC and at the Allard School of Law Trial Advocacy course.
In 2022, Mike completed a six-day intensive training program at the Strauss Institute for Dispute Resolution at Pepperdine University Law School in California, and expanded his practice to include acting as a mediator. Working side by side with many U.S. judges also enrolled in the program, Mike demonstrated how well he would thrive in a judicial environment.
Not long before his appointment as a judge, Mike was appointed King’s Counsel by the provincial Cabinet on the advice of British Columbia’s Attorney General.
Throughout all of Mike’s years in practice and his many hours spent giving back to the legal community, Mike’s family has always played a key role
in his life. Mike and Sharon are very close with their son Aaron and daughter Emily, born (twins) in 2002. Following in dad’s footsteps, Aaron and Emily are both studying law (UBC and TRU). He is undoubtedly proud of them and thrilled to see them embarking on legal careers.
When not working, Mike can be spotted riding his mountain bike, out with Sharon on a dog walk, or playing on one of three different teams in a local beer hockey league. As Mike will tell you though, “It’s not just any old beer league, I like a good IPA.” In addition to the beer, one of his great joys is being able to play on one team with his son Aaron. The Libbys are “a force to be reckoned with” (say Mike and Aaron).
Mike’s passion for life and keen interest in others, combined with his diverse legal background and sound reasoning, make him an excellent addition to the Provincial Court bench.
The Honourable Judge Paul Pearson
“Are you freakin’ kidding me? I am sooo excited right now!!” That was Paul’s reaction aloud to himself as he leapt off the couch, having just heard the casting call for Wipeout Canada in 2011.
Wipeout was a TV game show where contestants race through obstacle courses set over a giant swimming pool for the glory of $50,000. Challenges include running on a rolling cylinder like a lumberjack, getting across a balance beam while mechanical boxing gloves try to knock you off from a vertical wall of holes like a game of reverse Whack-a-Mole, and a “Dizzy Dummy” where contestants are spun on a vomit-inducing centrifuge before racing across wobbly platforms. Paul wanted to be on the show. No. Paul needed to be on the show.
None of his colleagues were surprised when the news came that Paul would be appointed to the Provincial Court of British Columbia. After all, Paul is smart, hardworking, ethical, sensible, compassionate and well-liked. He embodies the virtues of an official charged with judging their fellow citizens. The Lieutenant Governor in Council has, once again, poached one of the very best from the bar. Paul is irreplaceable to Crown and the defence bar alike.
Paul was born and raised in Victoria to a lawyer father and a nurse mother. He started life with one older brother, but after his parents separated and started their respective new families, Paul would eventually play older brother to four more siblings. Today, Paul lives with his wife Carley, a well-respected lawyer herself and an elite marathoner, along with their two young sons. They are an active family and can usually be seen around town, doing something active, or at least zany.
To convince the show producers to pick him, Paul needed a hook. Never one to take himself too seriously, he donned his best three-piece suit and dubbed himself the Dancing Lawyer. His submission video featured all his best “white boy moves” and culminated in him jumping off a cliff in his court attire into the waters of Thetis Lake. Legend has it that you can hear the TV executives salivating when they saw Paul’s entry. Picking him was a no-brainer.
Even in his early days, there were glimpses of the outstanding man Paul would grow to be. He had an excellent work ethic, which saw him sell stereos at A&B Sound to support himself through school. His sense of justice and courage were also admirable and precocious. At a gathering shortly after high school graduation, a young woman was being harassed by two intoxicated and handsy louts. Paul came to her defence despite being outsized and outnumbered. This act of valour earned Paul the respect of all his peers and the victim, not to mention five stitches to his head from the beer bottle that these thugs swung at him.
After studying political science for three years, Paul was accepted to UVic Law where he spent a formative semester at the Law Centre, a student clinic where Paul got a chance to have hands-on experience representing people who could not afford counsel. It was there that the barrister bug really bit hard and the path to a career in criminal law was foretold. Before that came to be, Paul clerked for the Supreme Court of British Columbia in New Westminster and then articled with Harper Grey Easton in Vancouver. Yet returning to his hometown of Victoria was always in the cards, to found a law firm with two classmates who were also freshly called to the bar.
And so it was. For his first 19 years, Paul practised criminal defence as a partner at a small firm. As far as starting his legal career, Paul did not hit the ground running; he hit it sprinting. While his call ceremony was scheduled for 4:00 Friday afternoon in Vancouver, he was scheduled to be flying solo defending a client charged with serious drug offences in Supreme Court in Duncan the following Monday. “Just keep your robe on this weekend”, his partners suggested to him over the phone. This case would turn out to be the first of many successes Paul had as defence counsel.
There is no half-assing anything with Paul. Once he sets his mind to something, he is all-in. So Paul studied previous American and Japanese versions of the show. He created a make-shift course in his backyard to hone his skills. He spent hours at a neighbourhood merry-go-round to build tolerance to dizziness. The filming in Argentina was but a couple months away.
The years with Robert, Michael and Andrew at Mulligan Tam Pearson were fun. The guys considered it a “club house thinly disguised as a law firm”. The receptionist desk was designed first and foremost as a bar to serve drinks at their legendary Christmas parties. If it also happened to be a convenient place to put outgoing mail or for clients to sign documents, then so be it. There were also the tongue-in-cheek advertising campaigns such as a spoof of the Beatles’ Abbey Road album on the back of the CBA directory, or the PA announcements at the local hockey games when a player got sent to the penalty box. Paul was flourishing as a lawyer, and having a great time doing it.
The first round was no problem. The hours of training paid off and a handful of other competitors were eliminated. The second round saw the players standing on 75 cm diameter platforms arranged in a giant circle. A mechanical arm swung horizontally in a circular motion, over which arm contestants had to jump lest they be knocked to the water below. Paul was victorious this round and earned himself a bye directly to the finals. Our hero would be spared the “Dizzy Dummy”.
In 2018, Paul joined the Victoria Crown Office, seamlessly becoming as formidable a prosecutor as he had been defence counsel. He always brought positive energy and fun to the office (to say nothing of his generously offered tech support and DJ services), in a manner in keeping with Crown’s never-winning-or-losing-Minister-of-Justice gravitas. But it is as a mentor that he will most sorely be missed. Crown at all levels of experience trusted his counsel, knowing if they asked him his opinion, or for guidance, he would always give a real answer; a practical answer; and a principled answer, sound in law. He was a resource for Crown counsel across the province, on many topics. And of course he inspired the same confidence in witnesses and investigators. There is no question the public will trust his decisions made from the bench. Paul is the kind of person about whom people did not ask “Will he be appointed?” Rather, they asked “When will he be appointed?”
The truth is that Paul’s day jobs are not even half the story of his contributions to the legal community. At an early stage, Paul was involved with the Victoria Bar Association, becoming its president when he had a mere four years at the bar. He would later return to serve on the executive when
the bar needed him again. He was also very active with the CBABC, having served as a two-term elected county representative, chair of the Sections Standing Committee, and co-chair of the Criminal Justice Section in Victoria. In 2021, he was elected a Law Society bencher. Beyond associations and committee work, Paul is a strong supporter of legal education. He taught Criminal Procedure at UVic from 2016 to 2019, winning the inaugural Adjunct Professor Award for excellence in teaching. Paying back to the Law Centre, Paul also volunteered as a mentor, as well as an ad hoc supervising lawyer whenever the need arose.
On the last day of filming, disaster struck. Turns out the pool water did not have as much chlorine as it should have. Paul contracted a campylobacter infection, the symptoms of which should not be described in polite company. But Paul did not go all the way to Buenos Aires to lie in an infirmary. So he soldiered on.
You may recall Paul’s videographical and directorial prowess from such productions as his Wipeout audition tape. In 2013, Paul once again put his talent to good use. Only this time, it was for all the marbles. By this point in their courtship, he knew Carley was “the one” beyond any reasonable doubt. So he summoned his inner Tarantino and put together a short film, disguised at the beginning as a movie trailer, but ending with him proposing to his now-wife. Paul wrote, directed, starred, filmed, sound-tracked, edited and produced the whole thing. He then arranged to show the end product at a local independent theatre having rented out the whole place, inviting friends and family to share the special moment. They were told to discreetly come to the theatre early and stay incognito as to not spoil the surprise. Carley was told simply that there was a movie Paul was eager to see. The ruse worked to perfection and there was not a dry eye in the house. This bears repeating: there is no half-assing anything with Pearson.
The final round was the toughest of all. Contestants had to run up a ramp and jump over barrels coming down on them in a game of human Donkey Kong. They then had to go across a climbing wall underneath a water fall, followed by jumping onto a spinning platform with little to hold onto except a few giant cylinders. All of this proved too much in Paul’s weakened state. He fell off the spinning platform and had trouble getting back onto the wall, falling repeatedly into the water. But in true Pearsonian fashion, he refused to give up. It was ultimately the show, not Paul, who threw in the towel. After 20 minutes of heroic effort, he was simply told he had to stop.
The episode aired months later, with the result of the competition a heavily guarded secret. On the day, Paul hosted a viewing party, insisting all who came donate to the BC Children’s Hospital Foundation. We will never know what would have happened had there not been that fateful swallow of contaminated
water. Perhaps the reader could draw their own conclusion as, at press time, Paul’s episode (Ep. 10) remains available on YouTube.
One may think that the above could fill several resumes. Yet Paul’s greatest asset is not any particular line item on a C.V. It is his humanity and his ability to relate to people. He sees the world through their eyes and gets what makes them tick. Thirty seconds into a conversation and you feel like Paul is “one of you”, whoever “you” are. To be sure, it is impressive that Paul has run multiple marathons including the 125 km Canadian Death Race. That he has his advanced and shark certification in scuba diving. That he has won ribbons for beekeeping and bbq-ing brisket. That he is an OK drummer. Sure, all of that. But what is really going to put Paul in good stead in his new judicial career is his connection to people. Win or lose, those in his courtroom will be heard, and will feel like they have been heard.
The Honourable Judge Sabena Thompson
Judge Thompson is a quiet, reserved person who is always fair and kind. She is knowledgeable on the law, capable of learning more and fair to everyone she deals with. That is the best recommendation anyone can give a judge of the Provincial Court, and it is the view of Sabena’s friends and colleagues.
Sabena is a compassionate person always willing to learn new things. She always wants the “deep story”, not the high gloss finish. She listens, absorbs and supports diversity, equity and different ways of doing business. She can be very firm and sometimes stubborn, but she is always open to hearing new ideas.
Sabena grew up in a very loving and busy home in Victoria. Her mom Edda and dad Chuck worked together to bring up Sabena, her twin brother Nevin and her younger sister Vanessa. While the two other Thompson kids have returned home to reside in Victoria with their families, Sabena chose to settle in Williams Lake with her amazing husband Rob, and plans to remain there to serve her community.
Sabena began her diverse working life as a coordinator for international relations and developer in an English language program in Japan. She
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worked in Japan over several years in different roles and discovered her natural ability to learn about new cultures and to take pieces of that learning and practise them in her own life. Driving madly about the country with various students in a small car sometimes stuffed with turkey (ask her) and with her travel companion pet cat, or joining a small community to watch and listen to their cultural practices, were her passion.
During those years, she developed an interest in law and came back to Vancouver in 1998 to start law school. During her time there, she took on a customer service job at YVR airport, and met the love of her life, Rob. Rob is her support, her helper in life and her best friend.
Sabena’s pre-law years also developed her sense of the world and her interest and respect for those cultures different then her own. She developed the skill of listening and hearing significantly, the ability to form connections among persons and to resources, and support development in others. This is Sabena’s “superpower”—connecting resources and organizations to individuals so that those individuals can succeed and grow themselves. She brings people together to problem solve and support each other, planting seeds so that others can grow on their own.
Sabena traveled north to 100 Mile House to complete her articles and begin her practice with a small firm there. She worked with Larry McCrea at 100 Mile House from articles in 2001 and then as an associate until 2005 when she joined the Crown Counsel office in Williams Lake. The Indoor Rodeo was starting that week, and the livestock were in pens in the parking lot behind the courthouse—lots of cowboys put a new spin on the idea of living in a cow town.
She worked with Administrative Crown Counsel Rodney Hawkins for many years before his retirement, learning the “Cariboo way” with him and other mentors such as Victor Galbraith, Elizabeth Bailiff, Cunliffe Barnett and Burdick Smith. She again was driving madly about the countryside, but this time running circuit courts and interviewing witnesses. She learned the value of a very large vehicle with good tires and, from Burdick in particular, the professional humility that counsel in the north are specialists in: caring for clients and victims alike, getting people to court in difficult situations and representing them skilfully in the roughest and most underresourced communities in the province. Truly the heroes of our profession.
Sabena conducted many significant trials in the Williams Lake area and, like all Crown counsel in the north, was in court every week prosecuting a variety of Criminal Code offences including homicides. If you have time with her, ask her about her “tiger” file.
Sabena stepped into the administrative Crown position when Rod Hawkins retired in 2012, taking over just before the famous “Stampede
Week” when the whole town celebrates like they were in the 1900s again. You can imagine the work on Monday. She continued to conduct court and run the office of four Crown counsel and four administrative professionals. In that role, she was able to “corral” many defence counsel into working on guilty pleas and making admissions on trials and to assist the busy Williams Lake courthouse to run smoothly.
In 2018, Sabena saw her opportunity to effect change in the larger northern legal community when she took on the role of Indigenous Court Crown counsel with the BC Prosecution Service (“BCPS”). This position assisted Indigenous communities throughout the north in the creation and running of Indigenous courts and alternative measures programs, and in supporting the victims of crime to give their evidence in a more trauma-informed manner through the use of testimonial accommodations. This is where her interest in all people served the community so well.
Sabena became a deputy regional Crown counsel in 2020, continuing to practise in Williams Lake. She continued her work with many Indigenous communities and took on responsibility for human resource decisions, staffing and, of course, charge assessment at a very high level. She appeared in court often, prosecuting in circuit courts all across the north and making connections with the isolated northern communities served by circuits.
Sabena listened to everyone she spoke to and heard opportunity for connection and new ideas that needed exploration. She wanted to support other people in succeeding because she knew their wisdom would not only assist them, but also assist the accused and victims to heal, improve and rehabilitate, which would in turn assist the community in which they lived.
Sabena’s superpower was used to push the BCPS and others into forming better relationships with Indigenous communities in the north. Her work opened doors for other Crown counsel to learn how to create better relationships with the communities they lived in and to practise within the BCPS Indigenous Justice Framework.
Sabena often worked behind the scenes, effecting change from within rather than trying to be in the spotlight. She connected people, supported people and let new ideas flourish, all with quiet and unassuming leadership. There are many within the BCPS that have received the benefit of Sabena’s quiet decision making and leadership—and will never know how much work she did to make that happen. She always gives the credit to others for the hard work they do and the wisdom they bring. She shows the best kind of leadership—people do not even know they are being led.
Sabena has a fun side, although still a quiet one. She loves animals (especially cats), loves to travel (and drive very “efficiently”) and explore the
world around her. She and her husband Rob are often out on the back roads in their truck finding exciting parts of nature and taking amazing photographs. She is always willing to leap in her car with her huge and heavy suitcases and go anywhere to see new things and experience life and new people. She has friends everywhere throughout the north.
As a judge, Sabena will be such a benefit to the people of the north who appear before her. She knows their community, wants to hear from them and will apply the law fairly having heard them. She will be respectful to counsel because she knows how hard their professional life is—she has been there, and she has done it.
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The Honourable Justice Tina Dion
“We all have a responsibility to do the best that we can and to be the best that we can be."
—Honourable Murray Sinclair C.C., O.M., M.S.C., and K.C.
Destined for the bench, Justice Dion, as a young mother, knew the personal commitment and sacrifices she and her son would have to make to achieve results. Education fueled her ambitions. The circumstances at the Indian Residential School required her to leave before completing high school; as such, Tina challenged herself to obtain the necessary academic credentials that would allow her to move from survivor to warrior. Tina completed her high school GED, enrolled in an university transition program and obtained a B.A. from the University of Alberta in 1994, then an LL.B. from the University of British Columbia in 1997. While successfully completing her LL.M. in 2005, with the Indigenous Peoples Law and Policy Program at the University of Arizona, Tucson, she was invited to forgo receipt of her Master of Laws degree and work toward a Doctor of Juridical Science (Law), which she achieved in 2008.
To complement her formal studies, Tina embraced a lived experience with other peoples in other lands, at the same time mapping out her career path. In 1992, during her undergrad at the University of Alberta, Tina was
an exchange student for a year at the University of New South Wales, Sydney, Australia where she undertook comparative studies of the colonial histories and legislative framework of the Aboriginal peoples in Australia and Canada. While in her third year at UBC Law, Tina attended Sandra Day O’Connor College of Law, Arizona State University, in Phoenix, as an exchange student and there she examined the Federal Indian Law and its effects on Native Americans in the United States. After graduating from law school, Tina clerked with the Navajo Supreme Court in Window Rock, Arizona prior to commencing her articles in Vancouver with the criminal law firm Orris Burns. She was called to the B.C. bar in February 1999. In the fall term of 1999, Tina was a supervising lawyer at the UBC First Nation Legal Clinic in downtown Vancouver. From January 2000 to April 2006, Tina had a litigation practice with the First Nations and Aboriginal Law Group at Blake, Cassels & Graydon LLP in Vancouver. From May 2006 to March 2012, she worked as in-house legal counsel and Director of Legal Services with the Tsawwassen First Nation (“TFN”) where she made contributions to its self-governance regime, developing laws and regulations, and creating new legal institutions for Tsawwassen, including merging the TFN Office of the Prosecutor into the Provincial Court system. After leaving TFN, Tina was the managing lawyer with White Raven Law Corporation before setting up her own practice in 2013, where she was a sole practitioner focused on administrative law, environmental law, civil litigation, regulatory matters, Aboriginal and Treaty rights, and Indigenous self-governance. Tina was called to the Alberta bar in July 2014 and appointed Queen’s Counsel in December 2016.
In May 2019, Tina was appointed a judge of the Provincial Court of British Columbia with initial chambers in Port Coquitlam, then in Surrey, as well as a judge for the First Nations Court, New Westminster and the sitting judge for two northern remote Indigenous communities of Kwadacha and Tsay Keh Dene. In August 2024, Tina was appointed to the B.C. Supreme Court with chambers in New Westminster.
Her year in Australia as an exchange student introduced Tina to the life of an adventure traveller where she experienced other peoples in their lands. She saw Aboriginal life in the city and in the rural territories of Australia. Working as an intern with the UN Working Group on Indigenous Peoples in Geneva, Switzerland allowed her to explore Europe on a Eurail Pass on $10/day. Her travels took her to many American tribal communities in the United States, as well as to central Mongolia where she stayed in a yurt and rode horseback with nomadic sheep and oxen herders. She rode a camel and camped with local Moroccan villagers in the north African Sahara
desert, witnessed the cultural traditions along the Ganges River at Varanasi in northern India, and camped on the icy ground exposing her to the vast marine and sea life of Antarctica in the face of climate change.
On her father’s side, Tina is a member of the Kehewin Cree Nation located in northern Alberta and on her late mother’s side has roots in the Elizabeth Métis Settlement in Alberta. Tina is the middle sibling of nine and grew up in foster care from the age 4 to 11. At age 11, Tina and three siblings were reunited with their mother for a short period before further family disruption required them to enter residential school. Tina maintains deep connections with her Indigenous family and community; her life is a remarkable story of resilience and determination to overcome the overwhelming odds against her successes all while working to provide for her family, either part-time while attending university or full-time while completing her S.J.D. degree.
Added to her academic achievements, Tina is a tireless volunteer, always ready to make a contribution to the community. Among such work, Tina was an adjunct professor over a 12-year period, at the Allard School of Law, UBC, a regular contributor and chair of CLE courses and CBA and IBA conferences and a founding member of the Scow Institute for Communicating Information on Aboriginal Issues. She also held executive roles with the CBABC, CBABC’s Aboriginal Law Students Scholarship Trust, Truth and Reconciliation Committee, and the Aboriginal Lawyers Forum. In addition, Tina was an elected member of the CBABC Provincial Council for Westminster County. She was provincially appointed to the board of the College of Optometrists of BC, the College of Registered Psychiatric Nurses of BC, and the Justice Institute of British Columbia.
In 2017, Tina was a recipient of the CBABC President’s Medal and the UBC Indigenous Law Student’s Association Courage in Law Award. In 2019, Tina was honoured with the Justice and Law Award from the Aboriginal Role Models of Alberta and the Special Contribution Award from the CBABC Aboriginal Lawyers Forum.
Justice Dion embodies the words of the late Honourable Murray Sinclair quoted at the outset of this piece. Her personal and professional contribution and experience together with her commitment, compassion and professionalism made her destined for the B.C. Supreme Court.
The Honourable Judge Michael Fortino
With the appointment of Judge Michael (“Mike”) Fortino on September 27, 2024, the B.C. Provincial Court gained not only an outstanding jurist but someone with exceptional judgment and integrity. Mike is fair and compassionate and has a tremendous work ethic. There can be no better attributes for a judge.
Mike grew up in Prince George. After graduating from high school, he moved to the Lower Mainland to study at Simon Fraser University. It was at SFU where Mike met the love of his life, and future wife, Tracy. Not long after graduation Mike moved to Calgary where he attended first year law school before returning and completing second and third year at the University of British Columbia, from which he graduated in 2008. He completed his articles with principal Marvin Stern at the law firm then known as Stern and Albert. He was called to the bar in April 2009.
As a junior criminal defence lawyer, Mike had the opportunity to travel throughout British Columbia representing people accused of a broad variety of criminal offences. He remembers that time fondly, particularly the support he received from his colleagues at Stern and Albert and the opportunities he was afforded to delve into, analyze and argue Charter issues.
In 2012, Mike joined the BC Prosecution Service (“BCPS”) as Crown counsel in the Surrey office. As with his defence practice, Mike threw himself into his work as Crown counsel with passion and enthusiasm. His (perhaps over-) enthusiasm for his work was on full display in 2013, during a jury trial he co-counselled with Winston Sayson, K.C. The accused was charged with aggravated assault after shooting the victim over a missing bottle of booze. The victim was on the stand and in the middle of crossexamination when Mike received a note from the court clerk that Tracy was in labour. Mike raced from the courtroom (tripping over his gowns) to the hospital for the birth of the couple’s first child, daughter Ava, and returned to the courtroom not long after in time for closing submissions and to await the jury’s verdict. In a practical demonstration of his commitment to lifelong learning, Mike did not repeat this behaviour when his son Dominic arrived two years later.
Mike never shied away from difficult cases or making tough decisions. He loved his work as Crown counsel and the important public duty that he served. Due to his exceptionally good judgment, legal knowledge and inter-
personal skills, Mike was regularly sought out by colleagues for his opinion and input. “Ask Fortino!” was a common refrain among Crown counsel tackling a thorny legal, ethical or procedural issue. His passion for criminal law and the Charter quickly became known. He regularly e-mailed colleagues with a summary of recent, significant cases and a link to the reasons for judgment and, consequently, was often teased about spending his “free time” reading cases. The truth is, given his extraordinary work ethic and commitment to public service, it is hard to contemplate Mike having any free time whatsoever.
In 2015, Mike was first elected by his BCPS colleagues in the Fraser Region to represent them as a director on the board of the BC Crown Counsel Association (“BCCCA”), which represents Crown counsel on matters of professional interest, in collective bargaining and in charitable activities. His work on the BCCCA board was voluntary and in addition to his regular duties as Crown counsel. In the six years Mike was a member of the BCCCA, including as secretary and vice-president, he acted with compassion and empathy for the members he represented.
As Crown counsel, Mike provided exceptional service to the public in his handling of prosecution files. He was tenacious, compassionate and unfailingly fair. He was, in the early years, exclusively a trial lawyer but his natural leadership skills led to a number of new opportunities in supervisory roles and management. In 2020, Mike became the administrative Crown counsel for major crime in Surrey. In January 2023, he became the acting deputy director, Special Justice Programs with the task of leading the BCPS’s participation in the province’s Safer Community Action Plan. In 2023, following the launch of the Repeat Violent Offender Initiative, Mike became a deputy regional Crown counsel in the Surrey Crown counsel office. Throughout this time, he maintained conduct of complex, high profile prosecutions involving homicides and motor vehicle fatalities in both B.C. Provincial Court and B.C. Supreme Court, all the while mentoring and developing the junior lawyers with whom he worked. In 2023, Mike’s leadership skills were recognized when he became a finalist for a Premier’s Excellence Award as an Emerging Leader in the BCPS. Remarkably, it was also during this time that Mike started and completed a master of laws degree in conflict and dispute resolution at Osgoode Hall.
The importance of community service and mentorship in Mike’s life and career cannot be overstated. His involvement began outside the field of law. Mike was a Canadian Armed Forces reservist from 2001 until 2023. As a youth in the cadet program, he was mentored through his teen years in his hometown of Prince George by many senior members of the program. Over
the years the roles reversed and he became an active and involved coach and mentor to many adults and young people involved in that program.
As a lawyer Mike benefited from exceptional mentorship both as an articled student and junior criminal defence lawyer at Stern and Albert and as Crown counsel with the BCPS. Recognizing the invaluable contribution mentorship played in his life, Mike spent much of his career as a lawyer mentoring, training and developing junior lawyers and students both within and outside the BCPS. He inspired and developed junior Crown counsel under his supervision to take on more challenging work within sometimes very complex, high-profile prosecutions. Colleagues from the defence bar trusted him and would often call him for legal, practical and ethical advice.
Not only did Mike forge strong mentorship relationships and, consequently friendships, with many lawyers across the province, he was responsible for the development and implementation of several formal mentorship programs that will continue to benefit the bar for many years to come. During the COVID-19 pandemic, when the development of informal mentorship relationships was hampered due to everyone having suddenly been thrust into a work-from-home situation, Mike implemented a mentorship program for junior Crown counsel in the Surrey Crown counsel office so that connections could be maintained. He later expanded that program into a formal mentorship program for the entire BCPS, aimed at facilitating mentorship relationships between junior Crown counsel in smaller and more remote centres with more senior Crown in larger, more urban centres. Mike was also on the steering committee for the Surrey Bar Association’s Inns of Court program that launched in 2022. The program was designed to promote professionalism, advocacy and competence in junior lawyers across all practice areas and to foster meaningful and lasting mentoring relationships between those lawyers and experienced volunteer counsel and judges.
Mike volunteered countless hours to the training and professional development of junior lawyers and other members of British Columbia’s justice system. In addition to facilitating and/or speaking at numerous Crown counsel conferences and learning events, Mike presented at Continuing Legal Education events and the Law Society of British Columbia’s Professional Legal Training Course, and was a regular speaker at police training events on topics ranging from substantive legal issues to ethics and procedure. From 2014 to 2019, he taught the Criminal Procedures / Evidence course at BCIT. In 2021 to 2022, he was involved in the development of curriculum for standardized training of BCPS articling students. In 2022, Mike’s
contributions to the BCPS were recognized with an award for his commitment to training and mentorship of young lawyers.
Mike’s love of the law and dedication to the development of others are obvious to all, but even more so are his love for and dedication to his family and friends. He wears proudly the title of “Soccer Dad” and gets no greater joy than standing with Tracy on the sidelines of a soccer pitch, regardless of the weather, watching their kids play and cheering them on. Mike and his family love to travel, be it to Disneyland, Seattle for soccer tournaments or the Philippines to explore and connect with extended family, or simply to relax in the Okanagan. They are blessed with a wonderful and supportive extended family and countless friends and, consequently, their social calendar is always full. There are very few who could have such a professional impact while at the same time be as engaged with all aspects of their children’s lives as Mike.
Mike was an exceptional prosecutor and colleague. He was and remains an extraordinary friend to many across the criminal justice system. As much as we miss him on “our side” of the bar, we are thrilled to walk into a courtroom and see him on the bench as we know he will always be fair, exercise exceptional judgment and act with empathy, compassion and integrity.
NEW BOOKS AND MEDIA
By R.C. Tino Bella*
Unwinnable Peace: Untold Stories of Canada’s Mission in Afghanistan, by Tim Martin, Tidwater Press, 2014
Reviewed
by
Anne Giardini, K.C.
More than 40,000 Canadian Armed Forces members and hundreds of civilian Canadians served in Afghanistan between 2001 and 2014. After the September 2001 Al-Qaeda attacks in the United States, Canada was part of a multinational coalition that invaded Afghanistan with the goals of overthrowing the Taliban government and attacking Al-Qaeda. Canada’s coalition involvement included security for Afghanistan’s new government, aid, reconstruction and participation in a war against a Taliban insurgency.
Canada ceased combat operations in 2011 and ended its mission in Afghanistan in 2014. In August 2021, the United States pulled out of Afghanistan, in what was widely seen as a chaotic and ignominious departure, and the Taliban rapidly gained control over most of Afghanistan. The White House has since issued a report on the U.S. withdrawal concluding that, “[u]ltimately, after more than twenty years, more than $2 trillion dollars, and standing up an Afghan army of 300,000 soldiers, the speed and ease with which the Taliban took control of Afghanistan suggests that there was no scenario—except a permanent and significantly expanded U.S. military presence—that would have changed the trajectory.”1
The mission to Afghanistan was remarkable for Canada in many ways, including being the longest combat deployment in our history and leaving few discernable lasting benefits to the people of Afghanistan. As of the writing of this review, Afghanistan is run by Pashtun clerics, it is one of two countries in the world where the wild polio virus is endemic, food insecurity is high, and draconian laws are being enforced against women, girls and others.
Retired diplomat Tim Martin served as the final Representative of Canada in Kandahar from August 2010 to July 2011, leading Canada’s civilian mission. His new book, Unwinnable Peace: Untold Stories of Canada’s Mission in Afghanistan (Tidewater Press, 2024), is a book well worth reading for an understanding of what happened, the responsibilities Canada undertook and why the news from Afghanistan remains so unremittingly grim.
An examination of our role in Afghanistan, says Martin, will make readers proud and sad and angry, as Martin says he is himself. His book is made up of stories—his own and those of over two dozen others who spent time in Afghanistan, as he and others weigh in on what Canada accomplished during our years there.
Unwinnable Peace amply achieves Martin’s three goals: conveying the human experience of what it was like to be in Kandahar, what difference Canadians made and how the engagement has changed us as a country in addition to costing billions of dollars and the deaths of two civilian and 158 Armed Forces members.
“Canada has the best small army in the world,” says Martin at the start of Unwinnable Peace, “but counterinsurgency is the hardest kind of war to win—killing the enemy is not enough. If we couldn’t help the Afghan people, what were we even doing there?”
Martin refers to the level of ambition—helping Afghans set up a democratic government—as breathtaking. “Success required doing three things at the same time: clearing a determined enemy from his homeland, building a new democratic government and reconstructing a devastated economy and society.”
He trained for his Afghanistan mission learning about the history and then-current situation, which he summarizes, and survived a posting in Fort Irwin, which he calls “Fakeghanistan,” a place outside of Las Vegas designed to mimic conditions he and his team would be facing in the months ahead. There, he was trained and tested on the austere and dangerous conditions they would face, including learning how to get out of a minefield armed only with a pencil, what to do if you or someone else loses a foot or part of their torso to a landmine, what to do if kidnapped, and how to withstand interrogation, but not necessarily how to sustain a marriage. Martin and his wife Fatima both wondered throughout the timeframe covered by the book whether their marriage would survive the long months of danger, risk and separation.
During his time as Representative of Canada in Kandahar, Martin was helped by many, hindered by others, frustrated by the circumstances, and always deeply committed to learning from and helping the people he
encountered, many of whom he describes and quotes from memorably. He was able to bring about some changes, such as better treatment for prisoners, but larger changes remained out of reach.
One observation Martin makes in a book replete with insights is that Canada is likely to be called on again. He believes that Canadians have an advantage in diplomacy in much of the world because there are relatively few conspiracy theories about why Canadians come to a troubled area, and no general belief, for example, that Canadians might be there to rule or to steal resources. Peacekeeping, he reminds us, has an important place in our history and our collective identity, dating back to when Prime Minister Lester Pearson was awarded the Nobel Peace Prize in 1957.
Canada’s help is needed, Martin argues, pointing to an arc of conflict and state failure that threatens global peace and security and to the many nations locked in conflicts that they are seemingly unable to solve alone. It is the height of hubris for foreign nations to try to coax peace among tenacious combatants. And yet Canada and other countries and agencies have tried and will continue to try. It might be that peace is unwinnable but doing nothing also shocks our conscience and risks our own borders and peace, as well as our peace of mind.
ENDNOTE
1. White House, “U.S. Withdrawal from Afghanistan”, online: <www.whitehouse.gov/wp-content/uploads/ 2023/04/US-Withdrawal-from-Afghanistan.pdf>.
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LETTER TO THE EDITOR
Dear Editor,
By R.C. Tino Bella*
Re: From Our Back Pages: “Entre Nous” (2025) 83 Advocate 141 at 143
I appreciate that the typographical horror “President Regan” [sic] occurs in the original publication (1989) 47 Advocate 509 at 510, but I submit that it is jarring enough to have warranted a footnote.
Best regards, Joe Marrie Campbell River
[If only someone had spotted the error in 1989! – Ed.]
* 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.
Watson Goepel is pleased to welcome its newest Partner, icah Goldberg Micah has consistently demonstrated exceptional legal expertise, a strong work ethic, and an unwavering commitment to client service
Since joining the firm as an Articling Student in 2015, Micah has developed a diverse and successful commercial litigation practice His dedication to excellence and his ability to deliver results him recognition in the prestigious Best La Watch in Canada™ category, solidifying hi rising star in the legal community.
Are you close to retirement and need a succession plan? I am a lawyer in good standing looking to purchase a practice in Greater Vancouver to grow and diversify my own.
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LEGAL ANECDOTES AND MISCELLANEA
By D. Michael Bain, K.C.*
THE CASE OF THE MISSING MADONNA – Part I1
Strictly Private and Confidential By Email Only
Dear Mr. Dalrymple
Re: Recovery of Stolen Art, ‘Madonna of the Yarnwinder’
We apologise for contacting you during your holiday and trust you will understand our reasons. We have been instructed to act on behalf of client’s (sic) who can assist in the recovery of the Da Vinci painting ‘Madonna of the Yarnwinder’ … which was stolen from Drumanrig Castle on 27 August 2003.
* D. Michael Bain, K.C., is the editor of the Advocate
We make it plain from the outset that we do not act for the thieves and have no knowledge as to the identity of the original thieves.
Our concern is to negotiate the safe repatriation of the painting and negotiate the reward/finders fee on behalf of our clients. We have instructed HBJ Gateley Wareing LLP of … Glasgow to assist us in negotiating the safe repatriation of the painting to its rightful owners. We are satisfied as to the validity of our client’s (sic) claims and that they can affect the safe delivery up of the painting within a 72 hour timeframe. In view of the sensitive nature of this matter, we would propose to invite you to a without prejudice meeting at the Glasgow offices of HBJ Gateley Wareing on Monday 13 August 2007 at a mutually convenient time to be arranged. We regard time as being of the essence.
We believe, as a legal team we can negotiate the successful and speedy return of this precious artwork through an informal mediation type process. Will you please contact the writer upon receipt of this email.
Yours sincerely, Marshall Ronald
Marshall Ronald was an English solicitor practising on his own out of his converted garage at his home in Skelmersdale, Lancashire. He was proud of his home office, which boasted a 73-inch screen, computers “that were all synchronised and working together”, video conferencing facilities and digital recording services. At the time he wrote the above email (to an insurance adjuster Mark Dalrymple), he believed he was on the cusp of the deal of a lifetime.
A few years earlier, the Law Society had recommended Marshall Ronald to Robert (Robbie) Graham and John (Jackie) Doyle of Liverpool, who operated as private detectives under the moniker Crown Private Investigations. At the dawn of the internet, they looked to Ronald to help them set up a website: “Stolen Stuff Reunited”. The website advertised a service for reuniting victims of crime with their stolen belongings. Graham and Doyle had some limited success reuniting people with stolen laptops, family photographs and smaller items that might have sentimental value to a victim but little value to a thief. Their “no questions asked” policy enabled them to facilitate the return of stolen goods for a small fee. The business, however, was operating at a loss.
The two were a couple of Liverpudlian “likely lads”; Doyle acted as driver for Graham, chauffeuring him around town in Graham’s mint green S-type Jaguar when they were not conducting their detective business out of a pub also owned by Graham. Graham was a bit of a dandy with his flash motor,
Armani suits, Rolex watch and pointy shoes. He styled himself “the Silver Fox” given his early greying head of hair. Always up for a laugh and a spot of adventure, things were about to get very exciting for the Silver Fox and his associate.
One day at the pub, Graham and Doyle were approached by a man named Jay who suggested that if the two could come up with £700,000 he could deliver to them a stolen Leonardo da Vinci painting that they could reunite with its owner, the ninth Duke of Buccleuch. The stolen painting was the Madonna of the Yarnwinder by Leonardo da Vinci valued at between £30 and £50 million.
This was a proposal on a somewhat larger scale than the relatively straightforward return of a stolen laptop. With an idea that the return of a Leonardo da Vinci painting would greatly enhance the reputation of their website “Stolen Stuff Reunited”, and that there may be a reward offered for the missing painting, Graham and Doyle thought they should either go to the police or go to a lawyer. They decided to contact their lawyer, Marshall Ronald, to get advice about what to do and, more importantly, how they could do it legally.
The Missing Madonna
In 1767 Henry Scott, the third Duke of Buccleuch and fifth Duke of Queensberry, married Lady Elizabeth Montagu, who was the daughter of the Duke and Duchess of Montagu. Lady Montagu was the heiress to a number of works of art, including the Madonna of the Yarnwinder depicting the Christ child seated on a rocky outcrop beside his mother, gazing intently at a crossshaped instrument for winding yarn as if already aware of his future crucifixion. The painting, created between 1500 and 1510 for Florimand Robertet, a diplomat and minister to the King of France, entered the Buccleuch collection that year and hung in the Duke’s ancestral home, Drumlanrig Castle in Scotland.
The only Leonardo da Vinci painting in Scotland, the Madonna of the Yarnwinder went on public display at Drumlanrig Castle in the early 1970s. On the morning of August 27, 2003, two men each paid £6 to visit the castle and headed straight to the Staircase Gallery where the painting had hung for the better part of 236 years.2 The only other person in the gallery at the time was a teenage tour guide on her first job, Alison Russell. One of the men grabbed Ms. Russell from behind, covered her mouth and told her to lie down. He also told her that she would be killed if she made any noise. His accomplice, meanwhile, wrenched the painting from the wall with an axe. The pair escaped in a matter of seconds to a VW Golf GTI parked outside. While rushing to the getaway car, the pair passed two startled tourists
from New Zealand. One of thieves said “Don’t worry, love. We’re police. This is an exercise.”
The real police, the Dumfries and Galloway Police, were soon alerted and although they found the VW Golf GTI abandoned and camouflaged nearby, they did not find the painting and they did not identify any suspects.
A Substantial Reward
The Duke of Buccleuch had insured the painting with Lloyds of London for £4 million. On a £40 to £50 million pound loss, this left the remainder of the value self-insured. Mark Dalrymple was a loss adjuster who, at the time of the theft, acted for both the insurer and the duke in respect of his uninsured interest. The day after the robbery, Dalrymple held a press conference at which he stated that both Lloyds and the duke were offering “a substantial reward” for the safe return of the painting, although no specific amount was mentioned. A public notice similarly offered “a substantial reward” and said that anyone with relevant information could contact the Dumfries and Galloway Police or Mr. Dalrymple directly. As Mr. Dalrymple told the press, anyone with information “can either use the crime watch number, use my incident room number and speak to one of my staff, or use the crime stoppers number.”
It was therefore to Mark Dalrymple that Marshall Ronald wrote on behalf of his clients, Robert Graham and John Doyle, whom he said could deliver the painting within 78 hours. By this time, the stolen Madonna of the Yarnwinder had made the FBI’s list of top 10 worldwide art crimes.
Proof of Life
Graham and Doyle approached Ronald to ask how they could legally get the stolen painting back to its owner. Ronald understood the brief and while he thought he knew how it could be done in England, the painting belonged in Scotland and so he felt that it was important to retain Scottish lawyers to assist. He turned to David Boyce and Calum Jones, partners at HBJ Gateley Waering in Glasgow. It was the Scottish lawyers who decided that it was appropriate to reach out to the insurance adjuster, Mark Dalrymple, to negotiate the terms on which the painting could be returned including determining the reward for doing so.
Mr. Dalrymple, responding to Ronald’s email, explained that he was not available to make the solicitor’s meeting, but that his associate, John Craig, could handle the details. John Craig, it turned out, in addition to being an associate of Mr. Dalrymple, was engaged as an agent for the Duke of Buccleuch. Once he got in touch with Marshall Ronald, he explained that the duke needed confirmation that the painting was safe and unharmed and
confirmation that it was authentic. This confirmation was described as a “proof of life”.
The proof of life required two aspects. The first was a photograph of the front of the painting with a recent edition of a newspaper (to prove the photograph was recent). The second was a photograph of the back of the painting (also with a recent newspaper), showing markings unique to that painting—often catalogue numbers or dates establishing where the painting has been on loan or exhibited.
Marshall Roland was prepared for this. He had read up about the “proof of life” and had already obtained something better than photographs. Through his clients and through Jay he had obtained a video recording. Curiously enough, the video had been recorded over a VHS copy of the movie Batman. Ronald sent it to John Craig who had Mark Dalrymple and an art expert verify the authenticity of the painting. Having concluded that the painting was authentic, they decided it was now time to negotiate the reward money.
After some back and forth, they settled on the figure of £2 million. Out of this sum, £700,000 would go to the thieves, legal fees would be deducted, the middle-man Jay would get something and the remainder would be split between Graham and Doyle, their lawyer, Marhsall Ronald, and the two Scottish lawyers, Boyce and Jones. The latter drafted the agreement between John Craig, on behalf of the duke, and Marshall Ronald. Graham and Doyle would be left with a hefty sum, the likes of which neither had seen before and which could help them preserve their failing business.
The original plan had been for the £2 million to be paid into Ronald’s trust account prior to the painting being recovered, in part to finance the transaction to obtain the painting. However, things took a turn when the Duke of Buccleuch suddenly died at the age of 83. Graham and Doyle were devastated because they had already imagined themselves handing over the painting to the duke himself. “We just thought it would be the best advert for our website. If you could get a da Vinci back, you could get anything back.”
Jay, meanwhile, was concerned that his share of the money would not materialize. John Craig then told Ronald that the money would be paid only upon receipt of the painting. This meant that Graham and Doyle would have to come up with the £700,000 themselves and bear all of the risk. After determining that they could not get sufficient funds by remortgaging their homes, Ronald reassured them that he could come up with the money to ensure the deal would go ahead. He also told John Craig that Jay had threatened to destroy the painting if he was not paid up front. Craig was not
deterred, however; the duke and the insurer, he said, would only pay on safe delivery of the painting.
With nerves being somewhat frayed, Graham asked to have a meeting with John Craig and Marshall Ronald. He wanted reassurances that everything was completely legal. The Silver Fox also decided to surreptitiously record the meeting so that he could establish for both Doyle and Jay that the plan was legitimate and the money was real. He even insisted that a legally enforceable written contract be created so that he would have something to show the police if he was stopped while transporting a stolen painting.
At the meeting (held at a bar in Euston Station in London), John Craig gave assurances that the death of the duke did not change anything as he had always been employed by the family rather than the duke. Marshall explained that the plan was to take the painting up to Glasgow and stay overnight in a hotel before heading to the offices of HBJ Gateley Wareing in the city centre the next morning. This is where the Scottish lawyers, Boyce and Jones, would be waiting with an art expert, David Restor, to receive the painting and confirm its authenticity.
As for receiving something in writing, the most Marshall Ronald could assure Graham was that there were contracts prepared by himself and HBJ Gateley Wareing that would prove that Graham and Doyle were acting legally and on behalf of Marshall Ronald. The contracts, he said, had been signed and were under lock and key with prominent solicitors—to be retrieved in the event of any trouble. This arrangement satisfied Graham and, when he later played the one and a half hour recording of the Euston Station meeting for Doyle and then Jay, it satisfied them too.
The Handover
The original up-front payment of £700,000 was subject to further negotiations as Ronald, it turned out, could not come up with that amount after all. The most he could do was £150,000. He managed to negotiate Jay down to £500,000, which left another £350,000 to locate. As he later stated:
I looked at methods of raising money by consortium. I thought if we syndicated it, you approach people and say “if you’d like to put up a portion or all £350,000, I’ll give you a percentage return.” I have commercial clients who are high net worth individuals who I approached and discussed it with them. The problem was not the money. It was the time scale. I wanted it in a week, you know? And that was a problem, you know? It was the most stressful week of my life in terms of trying to figure out ways of doing it. I found an alternative solution.
Ronald told Graham and Doyle that he had managed to find someone to lend him the cash and he was therefore able to provide Graham and Doyle with £350,000 cash and the £150,000 bank draft. He explained that an extra
£35,000 would have to be paid to the lender and this would have to come out of the reward money, but since the payment for the painting had been reduced from £700,000 to £500,000, nobody minded.
Ronald also arranged for Egyptian cotton blankets and a linen-free sheet in a carrying case for the transportation of the painting. Graham and Doyle were under strict instructions not to smoke near the painting, not place it in anything other than a vertical position, and not to touch the painting other than with specially gloved hands. The pair drove south of Liverpool to a pub, the Childe of Hale, in the village of Hale, not far from the recently named John Lennon International Airport.
The pair were late in arriving and so their contact, Jay, was upset about this when they arrived. They popped open the Jaguar’s boot and Jay roughly counted out the £350,000 cash. They gave him the £150,000 bank draft. Jay then took the money and left the Silver Fox and Doyle in the car park and walked off into the rainy gloom but without handing over the painting.
The pair decided to wait for Jay to return, which they did, until the Jag’s engine light came on. Worried that the car would not make the trip up to Glasgow, they quickly darted back to another pub, The Chaser, to pick up Doyle’s car and return in that—a 40-minute return journey. On their return, there was no sign of Jay in the parking lot of the Childe of Hale pub so they continued to wait. And wait. Graham and Doyle waited a long time, approximately four hours. Just when they felt like they had been had, a figure appeared awkwardly carrying something wrapped in a white sheet. It was Jay. He simply handed over the package and disappeared again into the rain.
Not sure what they had, Graham and Doyle peeked inside a corner of the package examining both the front and the back. They were satisfied it was the Madonna of the Yarnwinder by Leonardo da Vinci, handed over to them in the car park of the Childe of Hale pub just south of Liverpool—a £30 to £50 million stolen masterpiece. Within a few hours, they would be handing the painting over in a solicitor’s office in Glasgow.
Leaving the car park and turning north, Graham telephoned his solicitor, Marshall Ronald. “The lady,” he told him, “is on her way.”
Ronald must have felt a great deal of relief at this news. He would soon collect the reward money on behalf of his clients which would enable to him to return the £350,000 he had used from his other client’s trust account (plus an extra £35,000 for the stress of it all). He would get his legal fees, plus his cut of the remaining reward money split five ways between his clients and the Scottish lawyers too. Then there was the extra £2 million he
had negotiated directly with John Craig which, unbeknownst to Graham and Doyle, would soon be deposited into an offshore account in Marshall Ronald’s name.
For Graham and Doyle, meanwhile, it suddenly started to pour with rain, a portent, perhaps, that things were about to go spectacularly wrong.
ENDNOTES
1. Details in this piece are derived from HM Advocate v Ronald & Ors [2009] ScotHC HCJAC 177 (30 April 2009) and Olivia Graham, “The Missing Madonna”, Radio Scotland, BBC Sounds (18 August 2023), online: <www.bbc.co.uk/programmes/p0g7 fyrn/episodes/downloads>.
2. 236 years less the brief periods when the duke would take it out for a drive in a special velvet-lined box he had built for such outings—such was his love of the painting.
“Contemplation In A Chaotic World” by Sue Daniel, Oil on Canvas, 48'' x 60''
Visit the website: suedaniel.com
ЖЖЖ
FROM OUR BACK PAGES
By R.C. Tino Bel
INFLATION*
By H.H. Marcus†
Inflation and what it means to us has become one of the dreaded problems of our times. It is the greatest leveler of classes, the greatest supporter of bloodless revolutions, the most effective way of wiping out the middle classes, free enterprise and the democratic way of life. It has to be combatted with all forces at our disposal.
When I was a very small boy I lived in Germany and I remember how many years afterwards my parents showed me a little white toy rabbit for which they had paid several billion of Marks. When the German currency collapsed in 1923 money had to be collected in laundry baskets to do the shopping. This kind of total collapse of a currency South American style or as it is called here in England “hyper inflation” has fortunately so far been avoided. But the effective fall in the external exchange value of the Pound Sterling once regarded as the world’s major trading currency with the Dollar of over a third since 1971 has had disastrous effects on our way of life and should be taken as a warning to all who have not yet experienced it in all its cruel vigour.
Inflation, in the financial sense, is the name given to an economic condition caused by an increase in the flow of purchasing power relative to the
* (1976) 34 Advocate 341.
† Mr. Marcus is a solicitor of the High Court of Justice, England.
contemporary flow of consumers’ goods and services. This is commonly due to an increase in the available volume of money (including bank deposits subject to cheque), or to an acceleration of spending, or both; but a contributory factor may be a decline in the flow of goods and services available. The characteristic feature of inflation is a continuous rise of prices, though this may be masked if productivity per head is increasing.
The essential feature of inflation is that too much money is chasing too few goods. It is largely caused by a spiral of wage demands and rising prices. But if wages are increased without a similar increase in productivity, the result is simply that the purchaser has to give more units of the inflated and devalued currency for the same amount of goods.
Other consequences of the collapse of a currency follow from the fact that all holders of money, or of titles to money, are expropriated in favour of their debtors, even though nominal rates of interest on new debts are for the time being enormous. Gilt-edged securities become worthless as the incomes derived from them cease to have any appreciable purchas ing power; the endowments of educational and charitable foundations disappear; savings-bank deposits are hastily withdrawn and spent. The assets of insurance companies, mortgage banks and the like become largely worthless, as do the policies which the former have issued before the collapse began. Thus large numbers of persons, especially in the middle classes, habituated to saving and accustomed to rely to some extent on investment incomes, are reduced to poverty.
The British Government has now woken up to the seriousness of the position and the more responsible portions of the trade union movements are trying to support them. We are at the present time negotiating a limit on wage increases for the current year at the rate of 4½%. This restraint is considered as absolutely essential. Last year there was proposed a limit of 6% and this has at least to some extent reduced the gravity of inflation which ran in England at the rate of 25¼% annually and is now supposed to be in the region of 16-18% though it is very difficult to get really reliable figures.
England has undoubtedly become the spending paradise for foreigners blessed with harder currencies. They come to Britain with empty suitcases to indulge in a huge shopping spree. The theory is, of course, that a cheap currency will help a country’s export, but it does not always work this way. First of all, price is only one factor to be considered. The purchaser of foreign goods will want to be sure that there will be punctual delivery and that the political circumstances in the country from which he buys are stable. Furthermore it must be remembered that in a highly industrialized country like Britain we depend largely not only on imported food but on foreign raw
materials which form part of our own manufactured products. It often helps a country like Germany to have a hard currency because if they use a great deal of imported material from softer currency areas this will effectively off-set the effects of the expensive currency and encourage exports.
For the lawyer inflation causes a great number of problems. It is important to know at what rate currencies are deemed to be exchanged, the general rule being that it is the time of the breach of contract which is decisive. This can work badly against a plaintiff because by the time he obtains his judgment and can enforce it the exchange values may have turned against him. For many hundreds of years it was not possible in England to sue in a foreign currency. If a claim arose in Dollars, Swiss Francs, or Italian lire, the claim in that foreign currency had to be converted into Pounds Sterling at the rate of the breach and this could not subsequently be changed. Only in the last year and as a result of a great deal of legal argument it has finally been determined that the English Courts will entertain lawsuits in foreign currencies and that judgment will be given and can be enforced in dollars, yens or whatever currency may be appropriate to the particular case (Miliangos v. George Frank (Textiles) Ltd. (1975) 3 All E.R. 801 - House of Lords following Schorsch Meier GmbH v. Hennin (1975) 1 All E.R. 152 - Court of Appeal). This has been in a way an effective weapon against inflation because it helped foreign traders in their dealings with Britain.
What then is to be done? We have to work and work more and work harder to maintain our standard of life, to close more effectively the gap between real money and paper money. We have to forego an increase in the standard of living which, unless supported by real production increases, is only illusionary. We have to restrict severely government spending and reduce the cost of our bureaucratic administration.
After World War I the French leader Clemenceau said “Communism is a disease of defeated nations”. How right he was, but defeat can not only be on a battlefield but also in the workshops and in the financial centres once confidence is lost and it is that battle which has now to be won in many a country to maintain our standards of life and our democratic institutions.
BENCH AND BAR
Dusting off an old board game or jigsaw puzzle for use at the cabin or while camping? Heading to one of the tabletop gamerelated conferences being held in March in Vancouver and Toronto? Making plans to travel to the origin of snakes and ladders (India) or backgammon (Mesopotamia)? Or just interested in puzzling through where colleagues at bench and bar have moved? Well, settle in and keep reading! We start by piecing together what bit goes where.
Bronwen Black leaves Whitelaw Twining to join the Ministry of the Attorney General in Victoria. Adele L. Burchart joins Forte Workplace Law from Rosberg Sawatzky. Paul Johnson moves from Gall Legg Grant Zwack to Lawson Lundell. Edward Wang also joins Lawson Lundell, leaving Borden Ladner Gervais. Parveen Kasan is now with Singleton Urquhart Reynolds Vogel, having been with McQuarrie Hunter. Lydia Y.Y. Huang moves from DLA Piper to join Cooperwilliams Truman & Ito. Liam T. McDonald is welcomed aboard at Hunter Litigation Chambers following a clerkship with the B.C. Court of Appeal. Val (Naranjo) Lucas is now Deputy General Counsel with Elk Valley Resources, having left McCarthy Tétrault.
The firm of De Jager Volkenant wound up on October 31, 2024 and Luke A. Johnson, T. Charles De Jager, Maria Mach and Joanne Wiebe set out a new shingle under the moniker of the L. Johnson Law Group. Lynne M. Charbonneau, once with BlueShore Financial, is now on the board of Beem Credit Union. J. Derek James moves from QA Law to Pacific Law Group. R.J. Randall (Randy) Hordo sets out from Nathanson Schachter & Thompson to start up a new venture as Hordo Law. Samuel P. Cullen moves to Singleton
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.
Urquhart Reynolds Vogel in Vancouver, leaving Torkin Manes in Toronto. Also joining Singleton Urquhart Reynolds Vogel is Shinjin Kang, who was previously at McQuarrie. Amanda N. Winters recently joined Scion Law from Farris. Garrett Lee sashays from Dumoulin Black to join Lawson Lundell.
Heather Maki travels west across the mountains to join Iris Legal, having previously been with McCarthy Tétrault in Calgary. Moving even further, Wes Dutcher-Walls joins Hunter Litigation Chambers from the Adriano Law Group in Toronto. Kevin A. Hill moves to become legal counsel at Anthem Properties Group Ltd., having previously been in-house with VetCare Canada. Jacob Gehlen leaves Gehlen Dabbs Cash in Vancouver and takes a position across the water in Victoria at Stewart McDannold Stuart. Robert B. Dawkins moves from Global Relay to Vancity as vice-president of legal affairs. Jeremy Chan moves to Thinkific as general counsel and corporate secretary, having previously held the same post with Westport Fuel Systems. Aren Altman joins Harper Grey from the boutique firm Altman & Company. Kate Marples returns to Legacy Tax + Trust after a four-year stint at KMPG.
“An emu is not uncommon in Australia or as a clue in an American crossword puzzle. But, unless our research was not extensive enough, we can state that emus have never before in Pennsylvania been the subject of litigation”: Smith v. Penbridge Associates, Inc., 440 Pa. Superior Ct. 410 (1995).
The Honourable Victoria Gray, K.C., was appointed acting commissioner under the Members’ Conflict of Interest Act.
“The indictment [for receiving gratuities for his official assistance in efforts to secure favourable amendments to legislation by influencing its language] certainly need not allege precisely how [the accused] contemplated influencing that language. Would he do it by himself or ask someone else to do it? Would that someone else be Colonel Mustard or Professor Plum? With a candlestick or a rope, in the library or the study? Answering those questions is not required at the indictment stage”: United States v. Verrusio, No. 11-3080 (D.C. Cir. 2014).
On January 6, 2025, Gigi Chen-Kuo became the Law Society’s chief executive officer and executive director. She replaces Don Avison, K.C.
Katrina Harry, K.C., was elected in Vancouver County in the November 2024 bencher by-election.
Courts frown on treating freedom of information requests like moves in Battleship (a game whose origins extend back at least as far as World War I):
“This Freedom of Information Act case is reminiscent of the classic board game Battleship, where players array a field of plastic warships on a secret grid and alternate directing ‘shots’ at the opponent’s vessels by calling out precise coordinates. A shot hits its mark only if an enemy vessel is situated on a specified target.” The court noted that the U.S. Department of Homeland Security, on receipt of a freedom of information request, “obliged in a manner consistent with the rules of Battleship”, in that “[i]t canvassed its electronic records for direct hits, looking only for records that contained the verbatim language used [in the] request.” However, “FOIA requests do not operate like a game of Battleship”, and the agency was required to conduct a further search: Government Accountability Project v. U.S. Department of Homeland Security, No. 1:2017cv02518 – Document 15 (D.D.C. 2018).
Courts also do not seem to like the idea that litigation proceed in Battleshiplike form. In this regard, “a plaintiff who treats his complaint like the game of Battleship, moving the target across the board every time it suffers a fatal blow, acts in bad faith, and should not be entitled to leave to amend”: Bioiberica Nebraska, Inc. v. Nutramax Manufacturing, Inc., ECF 43 (D. Md. 2020). Further, commenting negatively on conduct in the family law case before it, the Ontario Superior Court of Justice noted, “[i]t’s the parenting equivalent of the board game ‘Battleship’. Just keep lobbing attacks. Maybe one of them will hit”: K.M. v. J.R., 2022 ONSC 111.
With the appointment of Justice Scott Morishita to the bench, Sarah Westwood, K.C., was appointed to the transitional board of Legal Professions B.C.
Jessica L. Derynck was reappointed as a member of the British Columbia Human Rights Tribunal for a term ending November 1, 2029. Shannon E. Beckett, Amber L. Prince and Edward M. Takayanagi were also reappointed as members for terms ending January 15, 2030.
Hungarian Heritage Day falls this year on March 15, 2025. Day of Nowruz follows on March 20, 2025. The International Day for the Elimination of Racial Discrimination was proclaimed for March 21, 2025.
A Hungarian sculptor and professor of architecture invented the Rubik’s Cube, a puzzle well known to various judges and legal commentators:
•In R. v. Stevenot, 2013 BCPC 91, the fact pattern “ma[de] solving Ernö Rubik’s cube seem like child’s play”.
•“Those who write statutes seek to solve human problems. Fidelity to their aims requires us to approach an interpretive problem not
as if it were a purely logical game, like a Rubik’s Cube, but as an effort to divine the human intent that underlies the statute”: J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124 (2001), per Breyer J., dissenting.
•“Deciphering this puzzle [in the form of certain statutory amendments] is like trying to solve a Rubik’s Cube that arrived with a manufacturer’s defect”: In re Donald, 343 B.R. 524 (Bankr. E.D.N.C. 2006).
•“With their proposed amended notice of civil claim, the plaintiffs have created a Rubik’s Cube of assertions and new averments and have simply told the defendants that the answers to their questions [a demand for particulars] are contained somewhere within the puzzle. The court will not countenance litigation in this manner”: 519981 B.C. Ltd. v. Schimer t, 2015 BCSC 2607. Confirming the impression that “Rubik’s Cube” is not a compliment when used in relation to pleadings, another court has noted that in “[t]rying [at a pre-trial conference] to solve the Rubik’s Cube that was the parties’ pleadings, the court told the parties that ‘you’ve got lots of problems, both sides’ and ‘it’s a mess.’ To their credit, the parties tried to simplify the case by orally nonsuiting various claims”: Mary C. Petty Family Trust v. Louton, 2018 Ark. App. 265.
•“We must unscramble a Rubik’s Cube of corporate tax law to determine the basis of a note contributed by a taxpayer to his whollyowned corporation”: Peracchi v. Commissioner of Internal Revenue, 143 F.3d 487 (9th Cir. 1998).
•“To try to find a comprehensive philosophy in the avalanche of jurisprudence which is triggered by the Divorce Act (RSC 1970 cD8) and the various provincial statutes is to recognize that the law in its present state is a Rubik’s cube for which no one yet has written the Solution Book”: Rosalie Abella, “Economic Adjustment on Marriage Breakdown: Support” (1981) 4 Family Law Review 1, as quoted in Messier v. Delage , [1983] 2 S.C.R. 401 at 409, per Chouinard J. for the majority.
Raymond Lee was reappointed vice-chair of the Coquitlam Public Library Board for a two-year term ending December 31, 2026.
“Law is not a game of scrabble”: Hensgens v. Deere & Company, 869 F.2d 879 (5th Cir. 1989).
The Justice Education Society (“JES”) has a mandate to educate British Columbians about their legal system. JES runs the Justice Schools Educa-
tion Program that provides educational instruction and courthouse tours to primary, secondary and post-secondary students. Last year 10,480 students from 270 different groups took this program and learned about B.C. courts.
James E. Howell was appointed to the Property Assessment Appeal Board.
There has been considerable controversy over who invented the game of Monopoly. Wikipedia advises that “[t]he earliest known version, known as The Landlord’s Game, was designed by Elizabeth Magie” as early as 1902, and was originally intended by her “to illustrate the economic consequences of Ricardo’s Law of economic rent and the Georgist [after Henry George, a political economist and journalist] concepts of economic privilege and land value taxation.” Anti-Monopoly, in turn, was a board game introduced in 1973, with players breaking up monopolies by bringing antitrust suits against monopolists. Much litigation ensued about the Anti-Monopoly name and, in particular, about whether the word “Monopoly” could be part of it—or rather, whether Monopoly had a monopoly on Monopoly.
The Honourable Dr. Marion Buller, C.M., was appointed by K’ómoks First Nation as its first justice of the peace.
Subodh Chandra was reappointed as a member of the Environmental Appeal Board, the Forest Appeals Commission and the Energy Resource Appeal Tribunal for a term ending December 31, 2026.
Allan E. Black, K.C., was reappointed as a member of the Vancouver Police Board for a term ending December 31, 2025.
James P. Carwana was appointed a member of the Surrey Police Board for a term ending December 31, 2026.
In examining the question of what is “counterfeit money” under the Criminal Code, the Saskatchewan Provincial Court assured readers that “Monopoly money” (“in essence, pieces of paper which are intended to be ‘pretend money’ for the purposes of playing a game or for some other, obviously-legal, purpose”) is “not counterfeit money. That is, no one is going to be convicted of possessing counterfeit money by virtue of having Monopoly money; no game manufacturer is going to be convicted of making counterfeit money because they cause Monopoly money to be printed”: R. v. Hartle, 2018 SKPC 62.
J. Douglas Seppala was appointed as a member of the British Columbia Securities Commission for a term ending December 31, 2027.
According to Portal Games, “51st State is a popular competitive strategy card game for 1 to 4 players in which your goal is to develop a new State in the post-apocalyptic world.” This all seems so timely …
Shelley S. Ball, Kathleen M. Mell and Mosope Doris Fagbongbe were reappointed as members of the Fraser, Interior, Northern, Provincial Health Services, Vancouver Coastal and Vancouver Island Patient Care Quality Review Boards for terms ending December 31, 2026.
Anita Kaur Atwal was reappointed as a voting member to the Fraser Health Authority for a term ending December 31, 2026.
William A. Duvall was reappointed as a voting member to the Vancouver Coastal Health Authority for a term ending March 31, 2025.
The origin of place names is often puzzling. In British Columbia, there are three officially named puzzling features. Puzzle Creek flows from the eastern slopes of Puzzle Mountain and is a tributary to the Elk River in Strathcona Provincial Park. Puzzle Mountain was so named in 1937 because of the maze of snow patches on its northeast face. Meanwhile, the Puzzle Islands are a group of small islands in the Broughton Archipelago, just north of Swanson Island. Similarly, there are three officially named geographic games in British Columbia. Game Creek flows into Game Bay on the east side of Columbia Reach on Kinbasket Lake. Game Lake sits high in the Rocky Mountains between Nestor and Nublet Peaks.
In other mountain-related news, the VBA held its annual Alpine Championship Ski Race at Blackcomb on February 2, 2025. Skiing away with the first place hardware, with a combined time of 90.33, was Uncle Ski Fast, comprised of speed demons Heather Sorenson, Roger Watts, Carmine Boskovich, Sam Geisterfer, Tara Christensen and Kevin O’Callaghan. Not surprisingly, the fastest male and female skiers on the day were Roger Watts (22.01) and Carmine Boskovich (22.42).
References to jigsaw puzzles may be more plentiful in Canadian and U.S. courts than on B.C. maps, including in: •describing legislation. In this regard, “[t]he [Manitoba] Builders’ Liens Act is not a seamless and symmetric web. It might better be described as a jigsaw puzzle which not only has a few pieces missing, but to complicate matters further includes additional pieces from other puzzles”: Provincial Drywall Supply Ltd. v. Gateway Construction Co., 1993 CanLII 9375 (Man. C.A.).
•describing physical facts. “The mere fact that appellant shredded his garbage before he placed it outside of his home does not create a reasonable heightened expectation of privacy under the Fourth Amendment….The Fourth Amendment…does not protect appellant when a third party expends the effort and expense to solve the jigsaw puzzle created by shredding”: United States of America v. Scott, 975 F.2d 927 (1st Cir. 1992).
•criticizing a party’s pleadings. The U.S. District Court for the District of New Jersey noted: “Neither the Court nor Defendants should have to piece together Plaintiffs’ unintelligible allegations like a jigsaw puzzle to make sense of the proposed Third Amended Complaint, particularly in light of the fact that Plaintiffs are represented by experienced counsel”: Schiano v. MBNA, No. 05-1771 (JLL 2013).
•referring to case management-related tasks. The Manitoba Provincial Court noted in R. v. Wood, 2020 MBPC 42 that “[a]ccommodating multiple schedules takes on a jigsaw puzzle like dilemma for those trying to find trial and case management time”.
•dealing with all manner of issues regarding evidence and proof:
o“The various aspects of this case are like pieces of a jigsaw puzzle. Fitting them together is made more difficult because the shape and form of each such piece is in sharp dispute”: Kimball v. Swanson, 47 Wis. 2d 472 (1970).
o“In a circumstantial case, as perhaps in any other kind of case, individual pieces of evidence and circumstances can be perhaps explained away in any number of ways. Cases have time and again said that when one looks at a circumstantial case, one must look at the totality of the case to see whether all the various pieces of the jigsaw puzzle fit together in its totality from a broad perspective”: R. v. Armstrong, 2002 BCPC 581.
o“[R]epeated conduct in a particular and highly specific type of situation….may fill a remaining gap in the jigsaw puzzle of proof”: R. v. Handy, 2002 SCC 56.
o“A [jigsaw] puzzle analogy is improper when it is used to quantify the number of pieces or percent of the puzzle that is enough to meet the beyond a reasonable doubt standard…. But jigsaw puzzle analogies may be proper if they are not used to improperly quantify the standard of proof”: State of Washington v. Gore, No. 48960-1-11 (2017).
o“Trials are sometimes described as jigsaw puzzles, where each piece of evidence is a piece of the puzzle. No jury is ever given all of the pieces”: R. v. Hassan, 2018 ONSC 732.
Some cases before the courts or other tribunals are actually, at least in part, about jigsaw puzzles. Adjudicating landlords’ claim for the value of damage to furnishings, a Tenancy Dispute Officer noted that one of the landlords was upset to find a jigsaw puzzle being assembled on the bare surface of a dining table. The Tenancy Dispute Officer noted that photographs provided did not show damage, and that “using the bare tabletop to assemble a jigsaw puzzle seems like a normal use of a table in my opinion”: 22009688 (Re), 2023 ABRTDRS 2.
Joseph L. Deuling was reappointed as a member of the Agricultural Land Commission.
Jennifer R. S. Glougie was reappointed as a member and chair of the Employment Standards Tribunal for a term ending February 5, 2030, and as chair of the Labour Relations Board for a term ending February 5, 2030.
The Ontario Superior Court has managed, in a single case, to combine references to two forms of puzzle: jigsaw and crossword. In this regard, “[w]hile mid-trial amendments are obviously not a preferred course of action, on occasion trial counsel may view the contents of his/her file as pieces in a jigsaw puzzle box, and sometimes the pieces do not seem to fit until several attempts are made. Without leaning too heavily on the use of metaphors, many crossword puzzles are not completed until the reader puts them away and starts anew”: Alguire v. The Manufacturers Life Insurance Company, 2016 ONSC 1455.
Also multi-tasking in its game-related references (perhaps the judges of the court had competing favourites), the Northwest Territories Court of Appeal noted that “[c]onstitutional litigation is not a game of 20 Questions, or Battleship. Nor do the resulting judgments resemble Snakes and Ladders”: R. v. T.(T.), 1992 CanLII 12827. However, many courts settle only for invoking the game of snakes and ladders without other accompanying board game references:
•“The courts are concerned with the administration of justice, not with playing a game of snakes and ladders”: WEA Records Ltd. v. Visions Channel 4 Ltd., [1983] 2 All E.R. 589 (C.A.). Further, “the determination of criminal liability should not be akin to a game of procedural ‘snakes and ladders’ where the outcome is uncon-
nected to the merits of the allegation”, R. v. H.(J.), 2002 CanLII 41069 (Ont. C.A.), per Doherty J.A., dissenting.
•“Trial dates should not get shuffled through a snakes-and-ladders game of chance that would see some cases get moved up, while others get moved back, through random selection”: R. v. Graham, 2022 NSPC 10.
•Master Robertson described reading the share purchase agreement at issue in the applications before him as being “like playing a game of ‘Snakes and Ladders’, requiring a repeated review of provisions already covered, in order to understand what appears on subsequent pages. This is not uncommon when reading commercial agreements, but in this [share purchase agreement], the extent to which references elsewhere must be reviewed to understand various passages is quite extensive”: Zerr v. Thermal Systems KWC Ltd., 2018 ABQB 1008.
•Justice Stratas, concurring, cautioned in Steel v. Canada (Attorney General), 2011 FCA 153 that “too great a devotion to judicial minimalism can ensnare benefits recipients in a frustrating game of ‘snakes and ladders’”, where the majority decided the case without determining a jurisdictional issue that could have informed later steps.
•In a game-laden analysis of why to make a “Phoenix Order” (an order dismissing an action under s. 29.1 of Ontario’s Class Proceedings Act, 1992, on terms that the dismissal order be set aside if the representative plaintiffs filed a final and complete motion record in the motion for certification within 30 days), Justice Perell noted: “rather than go through the rigmarole of a game of litigation snakes and ladders, where after the player slides down a procedural snake, but the game is not over, it is efficient and fairer in the interests of justice to just get on with deciding the class proceeding on its merits and not based on gamesmanship….[Section] 29.1 does not necessarily bring class proceedings to an end. Sometimes, it will be game over; sometimes, however, the court has jurisdiction to say ‘game on’”: D’Haene v. BMW Canada Inc., 2022 ONSC 5973.
Tanya J. Rothe was appointed as a director to the Board of Community Living British Columbia for a term ending December 31, 2027.
Melanie C. Samuels was elected as the B.C. member of the board of directors of the Canadian Jewish Law Association. This is a new group of legal
professionals from across Canada, working towards the pursuit of justice, equality and the eradication of antisemitism.
Jan A. Fishman was elected for a two-year term to the board of Congregation Beth Israel.
Ariel Solose was appointed to the board of the Vancouver International Arbitration Centre and as chair of the Rules Committee.
Marcia D. McNeil was elected as bencher for the County of Victoria in the January 2025 by-election.
On several occasions, the late Chief Justice McEachern invoked the game of checkers (a.k.a. draughts) in his decisions. He applied the phrase “[l]itigation is not like a game of checkers where a move is deemed to have been finally and irrevocably made when one makes his move and lifts his hand from the piece” in analyzing whether consequences flowed from the tendering of a draft form of order for discussion purposes at a pre-trial conference: Cansulex Ltd. v. Reed Stenhouse Ltd., 1986 CanLII 831 (B.C.S.C.). The phrase “life is not like a game of checkers where the play is automatically complete upon the piece being moved” found its way into his comments on trespass (R. v. Anderson, 1995 CanLII 1366 (B.C.C.A.)). And often cited is his “game of checkers” comment in relation to settlement agreements, in Fieguth v. Acklands Ltd., 1989 CanLII 2744 (B.C.C.A.):
The next stage [after formation of the contract] is the completion of the agreement. If there are no specific terms in this connection [in the settlement agreement] either party is entitled to submit whatever releases or other documentation he thinks appropriate. Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece. One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances. [emphasis added]
Since 1921, Chequers has been the official country residence of British prime ministers. Wikipedia notes that the home’s name may derive from that of an early owner of the manor of Ellesborough (the nearby village), Elias Ostiarius (“ostiarius” meaning an usher of the Court of Exchequer) or de Scaccario (with scacchiera meaning chessboard or checkerboard in Italian). His coat of arms
included the checkerboard (resembling a medieval counting table) that symbolized the Exchequer. An alternative theory is that the house was named after the checker trees growing on the property; those are deciduous trees whose fruit was once used to flavour beer. The trees were possibly named after the checkerboard that was traditionally a symbol of pubs.
“A matrimonial action is not a game of checkers or chess….A wife is not a chattel that can be placed in rooms as you would a piece of furniture, and then call the rooms a marital home”: Schwarze v. Schwarze, 62 N.J. Super. 492 (1960).
For a thorough discussion of matters related to chess specifically, see “Bench and Bar” (2019) 77 Advocate 949.
A challenge to readers: what, if anything, does “dude” (even more surprising than the reference to snakes and ladders) mean in the passage from McDowell v. Fortress Real Capital Inc., 2023 ONSC 1076 below, as found on CanLII? Is it a double typo or some kind of exotic Ontario terminology?
[7] Once a defendant is noted in default, the typical next step is to obtain a default judgment from the registrar for liquidated damages claims and to move for a default judgment for unliquidated claims. However, not infrequently, the defendant will then bring a motion to have the default judgment set aside. Those motions, which are the bane of existence of the default procedure, will be successful if the defendant is able to prove that there is some procedural irregularity, of which a preeminent example is the defendant demonstrating that he, she, or it was not properly served with the statement of claim, which is an originating process. This prospect of a dude default judgment is envisioned by rule 16.07, which is set out above. [“Even though a person has been served with a document in accordance with these rules, the person may show on a motion to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, that the document, (a) did not come to the person’s notice; or (b) came to the person’s notice only at some time later than when it was served or is deemed to have been served.”]
[8] It is, of course, a fundamental tenet of civil procedure that a defendant must be given notice of the claim and must be provided with an opportunity to defend. In the snakes and ladders game of civil procedure, having a default judgment set aside as dude is a long snake slide from the top of the board to the starting squares where the litigation game begins anew [emphasis added]
Thought du mois:
Who in the world am I? Ah, that’s the great puzzle.
—Charles Lutwidge Dodgson, a.k.a. Lewis Carroll English author (1832–1898)
Visit the website: artworksbc.com
“Life Journey – Humbled By Love” by Sue Daniel, Oil on Canvas, 48'' x 36''
CONTRIBUTORS
Gerald W. Ghikas, K.C., is an internationally and nationally recognized commercial arbitrator with over 40 years of experience as both arbitrator and counsel in disputes across a wide range of industries.
The Honourable Justice Lisa Hamilton will be recognized by keen readers of the Advocate as our cover subject from the January 2022 edition when she was president of the Law Society. She was appointed to the B.C. Supreme Court on May 27, 2024 and has been accused of supplying all of the Star Wars quotations in this month’s cover story.
J. Kenneth McEwan, K.C., is a Vancouver-based litigator focusing on complex corporatecommercial litigation, class actions, commercial arbitration and administrative law. He was appointed Queen’s Counsel (now K.C.) in 2004 and among his many accomplishments, he is the author of the fourth edition of Sopinka on the Trial of an Action. He does not like to be called “Newbury’s New Boss”.
Andrew Nathanson, K.C., is a partner at Fasken, a fellow of the American College of Trial Lawyers and a leading litigator involved in complex commercial litigation and white collar crime (litigating it as opposed to participating in it). Andrew was not allowed to play with Star Wars figurines as a child and has no knowledge about anything to do with the George Lucas franchise as a result.
Joel Nitikman, K.C., is a leading tax lawyer at Dentons in Vancouver. He is also that rare breed of person who can explain complex tax issues to lay people in an accessible and even entertaining manner. We imagine it is a bit like being phenomenal on the clarinet. One does not really appreciate it until it is actually happening.
Celia Taylor practises family law at Kits Family Law in Vancouver. She is well versed in the Hague Convention on the Civil Aspects of International Child Abduction and also is a member of the Community Legal Assistance Society’s Mental Health Law Program where she represents clients challenging their certification before the BC Mental Health Review Board. Speaking of boards, Celia will be treading them in Touchstone Theatre’s 2025 production of The Addams Family where she will put her background in theatre into play, or at least that play.
Bruce Wooley, K.C., has taught extensively in the real estate industry and at the Peter A. Allard School of Law at the University of British Columbia. He has worked as in-house counsel for Expo 86, Cominco, BC Enterprise Corporation and the Bank of Bermuda. After stints at Clark Wilson and Stikeman Elliott, he is now a sole practitioner focusing on real estate matters.
