May 2023

ADVOCATE

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LAW SOCIETY OF BRITISH COLUMBIA

Christopher McPherson, K.C. President

Don Avison, K.C.

Chief Executive Officer and Executive Director

BENCHERS

APPOINTED BENCHERS

Paul A.H. Barnett

Sasha Hobbs

Dr. Jan Lindsay

ELECTED BENCHERS

Kim Carter

Tanya Chamberlain

Jennifer Chow, K.C.

Cheryl S. D’Sa

Tim Delaney

Lisa H. Dumbrell

Brian Dybwad

Brook Greenberg, K.C.

Katrina Harry

Lindsay R. LeBlanc

Geoffrey McDonald

Steven McKoen, K.C.

Michèle Ross

Natasha Tony

Guangbin Yan

Jacqueline McQueen, K.C.

Paul Pearson

Georges Rivard

Kelly Harvey Russ

Gurminder Sandhu

Thomas L. Spraggs

Barbara Stanley, K.C.

Michael F. Welsh, K.C.

Kevin B. Westell

Sarah Westwood

Gaynor C. Yeung

CANADIAN BAR ASSOCIATION

BRITISH COLUMBIA BRANCH

BOARD OF DIRECTORS

Aleem S. Bharmal, K.C.

President

Scott Morishita

First Vice President

Lee Nevens

Second Vice President

Judith Janzen

Finance & Audit Committee Chair

Dan Melnick

Young Lawyers Representative

Rupinder Gosal

Equality and Diversity Representative

Randolph W. Robinson

Aboriginal Lawyers Forum Representative

Patricia Blair

Director at Large

Adam Munnings

Director at Large

Mylene de Guzman

Director at Large

Sarah Klinger

Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL BRITISH COLUMBIA BAR ASSOCIATIONS

ABBOTSFORD & DISTRICT

Kirsten Tonge, President

CAMPBELL RIVER

Ryan A. Krasman, President

CHILLIWACK & DISTRICT

Nicholas Cooper, President

COMOX VALLEY

Michael McCubbin

Shannon Aldinger

COWICHAN VALLEY

Jeff Drozdiak, President

FRASER VALLEY

Michael Jones, President

KAMLOOPS

Kelly Melnyk, President

KELOWNA

Taylor-Marie Young, President

KOOTENAY

Dana Romanick, President

NANAIMO CITY

Kristin Rongve, President

NANAIMO COUNTY

Lisa M. Low, President

NEW WESTMINSTER

Mylene de Guzman, President

NORTH FRASER

Lyle Perry, President

NORTH SHORE

Adam Soliman, President

PENTICTON

Ryu Okayama, President

PORT ALBERNI

Christina Proteau, President

PRINCE GEORGE

Marie Louise Ahrens, President

PRINCE RUPERT

Bryan Crampton, President

QUESNEL

Karen Surcess, President

SALMON ARM

Dennis Zachernuk, President

SOUTH CARIBOO COUNTY

Angela Amman, President

SURREY

Peter Buxton, K.C., President

VANCOUVER Executive

Niall Rand President

Heather Doi Vice President

Zachary Rogers Secretary Treasurer

Jason Newton Past President

VERNON

Christopher Hart, President

VICTORIA

Marlisa H. Martin, President

CARIBOO

Nathan Bauder

Susan Grattan

Nicholas Maviglia

KOOTENAY

Andrew Bird

Christopher Trudeau

NANAIMO

Johanna Berry

Patricia Blair

Kevin Simonett

PRINCE RUPERT

Sara Hopkins

VANCOUVER

Kyle Bienvenu

Karey Brooks

Joseph Cuenca

Bahareh Danael

Graham Hardy

Lisa Jean Helps

Judith Janzen

Heather Mathison

Scott Morishita

VICTORIA

Sarah Klinger

Dan Melnick

Paul Pearson

WESTMINSTER

Anouk Crawford

Mylene de Guzman

Daniel Moseley

Greg Palm

YALE

Rachel LaGroix

Michael Sinclair

Kylie Walman

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.)

Zahra Jimale, President

FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.)

Steven Ngo, President

INDIGENOUS BAR ASSOCIATION (B.C.)

Michael McDonald, President

SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA

Anita Atwal, President

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

Sandra Mandanici, President

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

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VOL. 81 PART 3 MAY 2023

On the Front Cover: Gerry Ferguson

The

Inn Society and Its New Home

On Collegiality and the Lawyers’ Inn Society’s New Home

The Benefits of Remote Hearings

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

ON THE FRONT COVER

Distinguished Professor Gerry Ferguson has retired from the faculty of law at the University of Victoria. Gerry graces the cover of this month’s Advocate. You can read about his amazing contributions to the faculty and beyond from 1976 onwards starting at page 333 of this issue.

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ENTRE NOUS

TLDR. Too long; didn’t read. “TLDR” is the rather curt response that can be thrown back at someone if the length of their text message or e-mail irritates the recipient. Texting and instant messaging are not ideal platforms for delivering detailed messages. So, if one of your friends or colleagues (or your mom) sends you a novel, you can simply respond “TLDR”, which indicates both a disdain for their verbosity and an assurance that you could not be bothered to even read their message.

The world of acronyms being what it is though, “TLDR” is also used now as a shorthand noun to announce an upcoming summary that will spare the reader the tedious task of wading in themselves, as in: “Let me give you the TLDR.” The meaning is something like: “I’ll spare you having to respond ‘TLDR’ to me by providing you with a summary instead.” We used to ask for the Coles Notes version. Now we can ask for the TLDR.

Depending on where your knowledge of TLDR lies, you might look at its current use as a noun as an exercise in promoting efficient communication. On the other hand, you might bemoan the demise of grammar and regret the overall shift away from a culture that reads let alone celebrates good writing. For this second type of reader, yes, you have become your parents and now might be a good time to also check when you last saw your doctor.

In this issue, if you did not already know, you will learn that with the closing of the Law Courts Inn (by the province, during COVID, based on out-of-date information and in the face of much opposition from the profession), the Lawyers’ Inn Society has been forced to seek out a new physical home. It has landed (at least temporarily) at the offices of Charest Reporting. Murray Clemens, K.C., meanwhile, has chimed in to encourage us to support all reporting services that provide us with spaces in which to interact directly with one another. The TLDR of those articles is: we should maintain collegiality within the profession.

Studies have shown that people tend to skip indented paragraphs when reading. We encourage you to do so here:

Collegiality is an essential aspect of the legal profession, and it refers to the quality of working cooperatively and collaboratively with colleagues. In a field where legal professionals must work together to achieve common goals, collegiality helps to foster a positive and productive work environment. A collegial work environment promotes trust, respect, and open communication among colleagues, which ultimately leads to better outcomes for clients. Additionally, collegiality can help to reduce stress and improve job satisfaction for legal professionals.

Collegiality is demonstrated through various behaviors and attitudes, including sharing knowledge and expertise, being open to feedback and constructive criticism, and maintaining a supportive and respectful attitude towards colleagues. Legal professionals who prioritize collegiality are more likely to work well in teams, resolve conflicts effectively, and build positive relationships with clients. By promoting a culture of collegiality within the legal profession, legal professionals can ensure that they work in an environment that is both supportive and productive.1

Have you ever been so bored in all your life!? The words bland and dull were invented to describe passages such as the two paragraphs above. We did recommend avoiding them. What, you might wonder, is wrong with them? Think of how the adults all sound in a Charlie Brown cartoon. That’s what’s wrong with them.

This text was generated using ChatGPT (currently banned in Italy), an AI service that will scour the internet and regurgitate information on any topic of your choosing in a writing style reminiscent of a grade 6 student suffering from a concussion. There is no fact checking, just a scouring and scrubbing and spitting out of information. We are assured that AI will learn as it interacts with humans and will get better at writing. It will not just pass bar exams; it will produce complex legal memorandums and even render decisions. Oh goodie.

Why on earth would we even want that? Too long; didn’t read? How about too complicated; didn’t think? Why have millions of people flocked to ChatGPT as a tool to assist them in their writing? Why not just … research and write? Does research not help us think about a topic? Is writing not part of the process of organizing our thoughts?

Why are so many people turning off their brains!? Look around you. Seemingly everyone is on a smartphone, swiping up and down and left and right looking at God knows what, avoiding human interaction, numbing themselves with shorts and reels and memes and utter drivel. How many times have you gone out for dinner and seen a perfectly handsome couple sitting across from one another on their phones without any apparent intent (or ability?) to speak to one another? Sometimes entire tables of fam-

ilies or friends are all on their phones simultaneously—doing what? Sharing photographs of who they are with and what they are eating? It is utter antisocial madness. Perhaps we flock to artificial intelligence now because we have lost all semblance of actual intelligence.

The COVID-19 pandemic not only ended lives, but also thrashed social gatherings and with it traditional interactions that lawyers have historically had with one another—whether it was going for lunch or attending inperson conferences, meetings or social events, those experiences simply came to an abrupt halt. The resulting Zoom calls and Teams meetings are a poor artificial substitute for true face-to-face interactions with one another. More artifice. Trust us, we do not need more technology to help us maintain collegiality. We need to help ourselves and help one another by interacting once more—in person.

Do you really want artificial intelligence in your life, or do you want actual intelligence? As previously discussed in these pages: All practitioners habitually bewail the fact that the collegiality of the bar is being eroded by the exponential increase in its size. … There can be no doubt that it is easier and much more pleasant to practise against fellow members whom one knows and trusts. Members are less likely to attempt to upstage opponents they know and like and whose good opinion they cherish. Older members tend to lament the erosion of the atmosphere of collegiality at the bar. However, older members were voicing the same lament 40 years ago and, we suspect, doing the same thing at the turn of the century. It is, however, an unmistakable fact that the larger the bar (or any group) grows, the more difficult it is to foster an atmosphere of collegiality.

Collegiality does not refer to a comfortable, chummy, clubby old boy’s network. It is a valuable cornerstone of the foundation of the bar. It needs little explanation to convince anyone that clients are better served by lawyers who treat each other with trust and courtesy and can thus more effectively do business with each other.2

There is no app or web-based platform that can create collegiality for us. Lawyers need to get back out there, get together and start interacting again. There are people working hard at creating and maintaining spaces for us to do this. We encourage you to take advantage of such spaces and engage with one another in person. The profession is only going to benefit from lawyers being real with one another. And we know. TLDR.

ENDNOTES

1. ChatGPT answering the question “write two paragraphs about collegiality within the legal profession”.

2. “Entre Nous” (1999) 57 Advocate 11 at 11–12.

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ON THE FRONT COVER GERRY FERGUSON

By Ivan Watson, Julie Sloan and Michelle Lawrence

Distinguished Professor Gerry Ferguson combines the youthful passion and curiosity more commonly associated with a lawyer just beginning his career with the wisdom, humility and “can do” attitude of a confident senior leader in his field who has seen and done it all. Well loved and respected for his many career accomplishments in teaching, scholarship and administrative leadership as well as his dedicated, long-term mentorship of students and younger colleagues, Gerry retired last summer after an incredible 45 years with the UVic Faculty of Law.

“Professor Ferguson is a hugely productive and greatly impactful scholar, whose research has, over his long and distinguished career, advanced our understanding of criminal law in Canada and abroad,” note interim dean of law Val Napoleon and former dean Professor Jeremy Webber. “In addition to everything else, his research production is a model of knowledge mobilization. Not only has he greatly advanced our scholarly knowledge of the criminal law, but also his research continues to shape, each and every day, to an extent beyond that of any other scholar we can think of, the administration of the criminal law in Canada. He has been a treasured mentor to a large number of his junior colleagues.”

Gerry’s early years were spent in snowy Ottawa, far from the February blooms and ocean views that would eventually draw him to Victoria. His academics were encouraged by an attentive mother, who quite remarkably was able to manage her own career as a teacher while raising children on her own in an era with little support for single parents. Gerry surely inherited both her commitment to education and her grit. For a young Gerry Fer-

guson, the latter was tested with no shortage of delight on the ice ponds and hockey rinks of our nation’s capital. Fortunately for us in the legal profession, Gerry’s academic interests prevailed over his athletic pursuits, and he eventually hung up his skates in favour of law school. Gerry earned his LL.B. at the University of Ottawa in 1971. He and his new bride Sharon left Ottawa for New York City the following year. There, Gerry completed a master of laws degree at New York University. On graduation, he returned to Ottawa for a research position at the Law Reform Commission of Canada, and later a faculty position at the University of Ottawa.

BUILDING THE FACULTY OF LAW

In 1976, Gerry joined the UVic Faculty of Law during its very first year in existence as an associate professor, recruited by founding dean Murray Fraser, whom he had worked with previously at the Law Reform Commission. “I’d never been to Victoria before, but I had heard that it was a nice place,” Gerry recalls. “I told Murray I’d love to come visit, but there was no chance I was coming there to work. I often say that life is a series of accidents, and 45 years have come and gone now!”

When Murray Fraser, the founding dean of UVic Law, was building the new faculty, “a balance of experienced and younger law professors brought an aspiring young professor from Ottawa,” remembers Murray’s wife, Anne Fraser. “Little did Gerry or his wife Sharon imagine that Victoria would become their home.”

Murray had a vision for a law school that was innovative, with a caring, student-centred focus and a social justice outlook that appealed to Gerry. He deeply admires the values that the Frasers helped to instill into the law school when he started in the 1970s and that carry on to this day, including a commitment to teaching excellence and social justice.

“After all these years, I’d say that the culture of UVic law has largely remained the same, and from the beginning we wanted a new and innovative way of teaching law, and in particular understanding and teaching law as a process,” he says. “What process means is that we wanted to study law not only in books, but also to understand how the law has actually been applied and how it is experienced by those it affects. That also led to us saying that lawyers had to have certain skills beyond analysis, including technical skills like interviewing clients, counselling clients, advocating for clients, etc. So we developed skills courses that were almost non-existent at the time, and we developed experiential or clinical programs such as the Law Centre. That formed the basis of a law school built on the values of social justice and collegiality rather than competition, and encouraged an obligation to give

back to the community. All of those things are what makes up the ‘UVic Difference’. I’m proud to say that it carries on to this day.”

Gerry was promoted to full professor in 1981 and served as associate dean for two terms in the 1980s. With a reputation for fairness and integrity, successive deans have relied on him as the go-to person when important tasks had to be accomplished or sensitive issues needed to be managed with tact, discretion and good judgment. Gerry was later awarded the title of distinguished professor, a rank reserved for the most outstanding and truly exceptional. Without doubt, it is a title most fitting.

He led the creation of UVic Law’s Co-operative Education program, the first co-op program at any law school in Canada. “I’m proud of having been able to take a new idea, such as co-op, and guide it through all the steps necessary for approval at the university,” he says. “It was heresy at the time, but the impact has been substantial, and it has also meant that we offer summer programs.”

He was also instrumental in the renaming of UVic’s law building from the “Begbie” building to the “Murray and Anne Fraser Building” in 2001, on the occasion of the faculty’s 25th anniversary.

“I had proposed that we explore the idea of changing the name of the building, and I knew that could be very political,” he recalls. “I started by building up small support in the faculty, the bench and the bar. It wasn’t about denigrating Begbie, and it occurred to me that if we called it the Fraser building, no one was going to object because he was the founder of the law school and deeply respected by everybody. Some may have not have liked moving away from the old name, but the new name was unassailable and more suitable to the school.”

TEACHER AND MENTOR

Gerry has won the UVic Law Students’ Society First Year Teaching Award more often than any other colleague at the UVic law school. His students consistently noted his excellent communication skills, caring attitude, commitment to his students, and infectious enthusiasm and passion for law.

He devoted much of his time to mentoring students and hiring them to assist him with research projects. Forty-five years of law students have benefitted from his exceptional ability as a teacher and kind guidance as a mentor. Many of his former students have noted his considerate yet challenging style in the classroom.

“In Gerry’s four decades teaching criminal law, he has been a popular, admired and respected professor, associate dean and model of the ‘reasonable man,’” recalls Anne Fraser. “Always interested in his students, Gerry

earned their admiration in the classroom with his ability to be absolutely up to date on the most recent developments in his areas of the law. The fourth edition of his book on money laundering and global corruption is illustrative of this important ability. His stalwart presence, good judgment, kindness and genuine interest in students and colleagues will be greatly missed and long remembered.”

CHANGING CRIMINAL LAW IN CANADA

His scholarly interests have been broad, encompassing criminal law, criminal procedure, sentencing, global corruption and mental health law. For decades, he was a primary contributor to the Annual Review of Criminal Law, now in its 40th edition. His most recent ground-breaking book, Global Corruption: Law, Theory and Practice, now in its fourth edition, arose out of his extensive involvement with a UN anti-corruption committee and has been widely cited internationally. The book is free and available on the United Nations and Canadian Bar Association websites, to name a few.

Perhaps his largest contribution to criminal law in Canada began in 1987 when, with the Continuing Legal Education of B.C., he oversaw and coauthored the Canadian Criminal Jury Instructions (“CRIMJI”), which quickly became an authoritative text and indispensable tool for both judges and counsel in criminal litigation cases. He developed it from a purely print publication in its early days to an accessible, online and fully searchable publication consisting of 156 individual chapters and over 2,400 pages.

“CRIMJI is widely used by judges in many areas to help them prepare when they have to tell the jury what the law is before they go into to the jury room and it is something I’m proud of,” says Gerry. “I hope to continue to work on it for a while. I consider it my largest and most impactful scholarship in the field.”

For scholars, jurists and practitioners of criminal law in Canada, the impact of Gerry’s work is unquestionable. His research spans the enactment of the Charter, and his ideas have shaped the foundations of modern criminal law. They will no doubt continue to impact the trajectories of the justice system for decades yet to come. It is not surprising, given the volume and quality of his scholarly contributions, that Gerry would be recognized by one of our most celebrated jurists as “an icon in the realm of criminal law” and one to whom Canadians owe “a huge debt of gratitude”.

FORGING EQUITY AND DIVERSITY PRACTICES

Gerry has shown exemplary leadership in forging equity policies and practices in both the law school and the B.C. legal community.

In the early 1990s, he wrote a 50-page report and helped to establish what became the Law Society of British Columbia’s Equity and Diversity Committee, which was the first such committee for any law society in the country. He was an active leader on the committee from 1993–2004, and during that time he led the creation and authorship of three reports on Aboriginal law equity concerns in respect to students and lawyers.

Over several years in the 1990s, he led faculty committees at the law school that developed a number of equity policies designed to foster equality and promote inclusivity for people and populations historically excluded from the law and legal education. These policies established the UVic Faculty of Law as a leader in the pursuit of equity and diversity values and were used as models for other parts of the university and other Canadian law schools.

Gerry has also served the profession in national and international leadership roles, including as member of the National Advisory Council, Law Commission of Canada, International Society for Reform of the Criminal Law, and as a senior associate of the International Centre for Criminal Law Reform and Criminal Justice Policy.

LOOKING AHEAD

Gerry is rightly proud of all that he has achieved during this time at UVic Law. “I’ve tried to contribute to the law faculty in every way I could through my scholarship, teaching and impact on the faculty and community,” he says. “I’d like to be remembered as someone who was respected for his integrity and selflessness. My goal has always been to contribute as fully as possible, to the best of my ability, to do things in the faculty interest rather than in my individual interest.”

Gerry welcomes retirement for the time it will give him for travel with his beloved Sharon and their daughters and granddaughter. He has consistently described his many adventures abroad with Sharon—for both work and play—as among their happiest times. They have made the occasional return trip to Ottawa in recent years but their sights are set now on warmer climes, with Costa Rica being the family’s new favourite destination.

But friends and colleagues won’t let Gerry go easily. He has been recruited to join the BC Access to Justice Centre for Excellence as a mentor, and in his retirement he has already had a hand in advising graduate work on human rights in the correctional setting. He has agreed to review pending research on the new extreme intoxication defence, and he has been scheduled to complete more updates yet of CRIMJI. Of course, given his hard work ethic, his avid curiosity and his enduring passion for the criminal law, Gerry is easy to convince.

THE LAWYERS’ INN SOCIETY AND ITS NEW HOME

By Adam Howden-Duke1

Who will move this half ton table to Erickson’s eyrie on high weighted down with memories and an occasional sigh?

While the author was still in diapers (and on the other side of the world), the doors opened on the first Lawyers’ Inn. This was May 14, 1972, and the inn was located on the second floor of the Marc building on the corner of Hornby and Dunsmuir. At that time, it was seen as an ideal location as it was one block from the courthouse and surrounded by law offices. With the backing of the Vancouver Bar Association, the inn was an immediate success, boasting 500 members in its inaugural year.

As the photo below shows, at the heart of the inn was the common table. What distinguished the table was not only its size and weight, but its pur-

The first board of directors of the Lawyers’ Inn Society, September 1972: J.J. Camp, P.W. Bogardus, J.P.M. McAvity, R.W. Lusk, J.A. Gemmill, M.F.M. Hermann, W.A. Craig, Q.C., D.H. Vickers, R.J. Duncan, Y. Chernoff, W.P. Lightbody, A.P. Pantages, S. Cohen, M. Taylor.

pose: to allow both lawyers and judges to meet and exchange ideas and comradeship in a relaxing atmosphere.

While at the Marc, the inn hosted many luminaries, such as Chief Justice Laskin, Lord Denning of Whitchurch (Master of the Rolls) and Lord Widgery, the Lord Chief Justice of England. During his visit, Lord Widgery formally installed the inn’s Middle Temple table, made from oak boards, which served since 1730 in the Middle Temple hall.

When the current Vancouver courthouse, designed by Arthur Erickson, began to take shape in the late 1970s, at its centre was a large space devoted for a restaurant, which looked out over a reflecting pond to the north (later named Lake Nemetz) toward the old courthouse, and the North Shore mountains beyond. The board of directors of the Lawyers’ Inn Society approached the Chief Justice and offered to take over the space to operate a public restaurant and the Lawyers’ Inn. February 15, 1981 was the Lawyers’ Inn’s last day at the Marc before it moved to the Erickson-designed courthouse.

And so, the Middle Temple table and the common table were moved to what became known, for nearly 40 years, as the Law Courts Inn. However, in late 2020, the Ministry of Citizens’ Services decided not to renew the Lawyers’ Inn Society’s lease of the Law Courts Inn, and the society, for the first time in its nearly 50-year history, was without a home. The Law Society of British Columbia became the gracious custodian of the Middle Temple table, several members of the profession became the gracious custodians of historical photos that had adorned the walls of the Law Courts Inn and the common table was put (somewhat unceremoniously) into storage.

Now, through the tireless efforts of a dedicated board of directors and the generosity of Charest Legal Solutions Inc., who share our vision for a place where the bench and bar can come together to foster and maintain a culture of professionalism, both tables (and the society) have a new home.

The Lawyers’ Inn Society is proud to announce that it has established a new Lawyers’ Inn, at the offices of Charest Legal Solutions Inc., 885 West Georgia Street, so that the society can fulfill the purposes it was created for—namely, to foster and promote understanding, cooperation, exchange of ideas and comradeship between all members of the legal profession, and to provide a forum for the full and free discussion of all matters of interest to its members.

To those of you who attended our inaugural event at our new venue, thank you, and we hope that you had an enjoyable and enlightening evening. To all, we look forward to welcoming you to future events at the new Lawyers’ Inn.

ENDNOTE

1. The author acknowledges the following resources: “The Lawyers’ Inn: Focus of Vancouver Legal Life”, (1972) 30 Advocate 288; Michael Herman, “The Lawyers’ Inn: The President’s Report” (1974) 32 Advocate 243; “The Lawyers’ Inn: The President’s Report” (1975) 33 Advocate 459; Wally Lightbody,

“The Law Courts Inn – More Than Just a Pretty Restaurant” (1993) 51 Advocate 899; Bruce Fraser & Sandra Kovacs, “The History, and Future, of the Lawyers’ Inn: A Home for Lawyers” (2015) 73 Advocate 187.

(L to R) Brian Cheng, Catrina Chisholm, Angela Folino (vice president), Adam Howden-Duke (president), Julia Roos & Tom Boyd. (Absent): Emily Chee (joint treasurer), Nolan Hurlburt (secretary), Andrew Scarth, Jonathan Woolley (joint treasurer), Fred Wynne, Daniel Yaverbaum.

ON COLLEGIALITY AND THE LAWYERS’ INN SOCIETY’S NEW HOME

By Murray Clemens, K.C.

When the author of the companion article, “The Lawyers’ Inn Society and Its New Home”, was in diapers, I graduated law school and moved to Vancouver to article—I was called to the bar in 1976.

On my arrival, the Lawyers’ Inn was into its third year of operation. All three of the firms where I have practised over the following decades have been supporters of the Lawyers’ Inn, maintaining memberships and hosting occasional events (remember the massive shrimp appetizer?).

The more important feature of the inn was the venue it offered as a welcoming environment where you could meet and enjoy lunch with colleagues, not unlike the inns of court in London where I attended a lunch with a barrister member of Four Essex Court with whom I was working on a file for a common client. Attendance at lunch at the inns of court was a prerequisite for students to be called to the bar. Unlike our Lawyers’ Inn, solicitors did not belong as members, but were often guests. To qualify, students were required to attend a specific number of lunches with their principal. The task was not burdensome and helped foster the collegiality of the bar for generations of barristers. The same was true of our Lawyers’ Inn, except that solicitors were not only welcome but were an important part of the establishment of a robust institution over the years.

In recent years, the Lawyers’ Inn has struggled with maintaining a sustaining membership. The onset of COVID-19 helped to hide the government’s decision to close the Lawyers’ Inn at its Vancouver Law Courts location. Another feature of our collective experience with COVID was the transition to virtual meetings and events, such as CLE programs, discoveries and arbitrations, reducing the opportunity for collegial in-person dialogue.

The closing of the Lawyers’ Inn at the courthouse was another challenge to the circumstances available to members of our profession to meet in person. What is not said in the companion article, but must be known, is that

the changes in our methods of association to “virtual events” on platforms like Zoom and Microsoft Teams has impacted the viability of in-person discoveries, in-person arbitrations and in-person contact with our colleagues. Without a return to the increased use of in-person discoveries and hearings at Charest’s facilities in the very short term, it will have to close its large hearing rooms, if not all discovery rooms, and return to the old days of using lawyers’ offices and hotels. This will threaten the viability of events such as discoveries, mediations and arbitrations being held in such a convenient, comfortable and professional venue where casual meetings of our profession can continue. Another brick out of the collegiality firmament.

The plain and simple fact is that unless the use of Charest’s facilities as a venue for in-person discoveries, mediations and arbitrations significantly increases, a downsizing may become a reality threatening the new opportunity for the Lawyers’ Inn as described in the penultimate paragraph of Adam’s article.

Bottom line: Support your local court reporter with in-person hearings and discoveries!

THE BENEFITS OF REMOTE HEARINGS

By Fayme Hodal and Jenson Leung

In response to the COVID-19 pandemic, the B.C. courts, like many others, implemented a policy that allowed for remote appearances. In particular, the B.C. Supreme Court allowed chambers applications estimated to take two hours or less, trial management conferences (“TMCs”) and case planning conferences (“CPCs”) to take place remotely via video or telephone conference, by default. Parties could, of course, apply to the court to seek to appear in person.

During the pandemic, many of our courts and tribunals proved themselves to be capable of hearing even trials via telephone or videoconference. Unfortunately, despite this success, the B.C. Supreme Court has indicated that in-person attendance is being resumed as the default method for all appearances including matters that are proceeding by consent.

With the utmost respect and deference, we suggest that resuming inperson hearings as the default mode for all court proceedings is effectively forcing the profession to abandon and discard nearly all the progress toward a more modern and efficient court system that was made during the pandemic.

Remote appearances provided many benefits to the public, the courts and the legal profession. Resuming in-person proceedings as the default mode is, in our respectful opinion, a missed opportunity for bettering our court system. This opinion is shared by many of our colleagues and friends.

INCREASING ACCESS TO JUSTICE

An overarching benefit of remote proceedings is that they improve a key component of access to justice by extending the availability of lawyers to individuals in the province beyond their immediate geographic area. In other words, clients benefit from the ability to seek assistance from lawyers based on expertise, rather than physical proximity to either the client or the local courthouse. The ability even of lawyers in the Lower Mainland to assist countless individuals and small businesses in smaller, remote and historically underserved communities in the province during the pandemic was made possible in large part by the availability of remote appearances.

Some areas of British Columbia do not have lawyers in close proximity. In some cases, there are local counsel, but they may not have the expertise needed to properly address a given situation, or may be conflicted for any number of reasons. With remote appearances being available by default, individuals may choose the lawyer they believe will best represent them, regardless of the lawyer’s geographical location within the province.

As noted by the Ontario Superior Court’s Justice M. Edwards in a recent case, “[t]ime is in very short supply”.1 By allowing proceedings, particularly routine and relatively short proceedings (such as TMCs, CPCs, uncontested applications and consent applications), to proceed remotely by default, the court eliminates wasted time that would normally be spent on activities that do not serve to advance a matter, such as physically waiting in court for the matter to be called, and travelling to and from the courthouse. This in turn reduces the cost to clients and maximizes use of the lawyers’ time.

Lawyers would, therefore, have increased capacity to take on new clients or advance existing matters more expeditiously, thus further improving access to justice. They can also, if they so choose, use that additional time to tend to personal matters, thus improving mental well-being in the profession.

Travel requirements for in-person appearances can be unnecessarily onerous even for those in a small geographic area like the Lower Mainland. There remains an unnecessary cost imposed on litigants in the form of travel time rather than attending to the matter itself. Further, it is entirely possible for a lawyer in the Lower Mainland to have multiple appearances on the same day at different courthouses and, as a result, to have to allocate large amounts of time to travel between the courthouses.

HELPING LAWYERS STAY IN THE PROFESSION AND LAWYER HEALTH

Remote appearances can allow a lawyer who is a parent or other caregiver, who otherwise would have needed to frequently make childcare or similar arrangements, or take an absence from or leave the profession altogether, to give care and continue to practise at the same time. Without the flexibility of remote appearances, the lawyer could be forced to make an often difficult choice between their profession or their loved one. Gone are the days when most people had a partner who could drop what they were doing to pick up the pieces in our personal lives when our profession demanded more of us.

Remote attendance also has indirect positive effects on lawyers’ mental health. In general, lawyers are exceptionally cognizant of the opportunity cost of their time, and any time spent on “unproductive” tasks. Many of us become stressed when time is wasted or otherwise lost, especially when we

could have been, and wanted to be, productive, or would have otherwise been engaged in an activity we enjoy.

Further to that, as our mental health is unquestionably tied to our physical health, allocating time previously used to travel to and from in-person appearances, or waiting for our turn at those appearances, to healthful activities results in better physical health, and therefore better mental health. We will leave it to another article to more fully address the mental/physical health piece.

ENVIRONMENTAL CONSIDERATIONS

While much of the profession was already functioning reasonably digitally, shortly following the onset of the COVID-19 pandemic, our profession showed that it could continue to assist the public with their matters by taking up and using any number of helpful elements of technology, en masse Anything that would have, up to that point, occurred in person was occurring via phone or video, and did so for an additional two or so years. Over that period of time, fewer tonnes of fuel were burnt and fewer trees were sacrificed in service of in-person attendance. Instead, participants attended examinations for discovery, mediations, CPCs and TMCs by video, and could provide materials electronically in advance to the other parties. Additionally, the digitization of documents not only reduced the sheer amount of paper, but also markedly reduced guesswork and uncertainty about any given document, as all could be sure they were viewing the same one.

WHAT THE SMALL CLAIMS COURT AND COURT OF APPEAL ARE DOING CURRENTLY

In contrast to the direction taken by the B.C. Supreme Court, the B.C. Court of Appeal and Provincial Court have both continued to embrace remote appearances as the default mode for many proceedings.

In particular, the B.C. Court of Appeal allows for parties to file a “request to appear remotely” for appeals and chambers, and automatically allows parties to appear by Zoom in chambers.

Similarly, our Provincial Court has continued to have videoconferencing via Microsoft Teams as the default mode of attendance for settlement conferences and trial conferences.2

As aptly noted by our Provincial Court, “Remote attendance options provide the flexibility to support greater access to justice, including for those living in remote communities, vulnerable people served by the Court, and those who test positive for COVID-19 and need to stay home pursuant to the [BC Centre for Disease Control] guidelines.”3

SOMETIMES, IN-PERSON HEARINGS ARE BETTER

Remote appearances are not without their shortcomings, such as lapses in decorum, lack of an appropriate sense of occasion by those appearing or challenges with documents added at the last moment, all of which we note are not unique to remote appearances. Nevertheless, the B.C. Court of Appeal and other courts have amply demonstrated that these issues can be overcome with well-established procedures.

Naturally, some matters should and will continue to be heard in person. However, the authors suggest that in-person appearances should not be the default method for all court proceedings. Rather, when parties are represented by counsel in less complex matters, remote appearances should be the default, with parties at liberty to proceed in person by consent or court order. For example, this approach would be appropriate for matters including consent or uncontested applications, non-complex chambers applications under two hours, TMCs and CPCs. Indeed, the overwhelming consensus within the bar seems to be that the majority of court proceedings with time estimates under the two-hour threshold for long chambers could also usually be dealt with by remote means.

By contrast, matters such as trials (of any length), long chambers applications and summary trials should proceed in person. Similarly, complex matters and matters involving self-represented litigants should generally proceed in person.

If, as a profession, we want to continue to say we care about access to justice, the health of our own and the environment, we must not only hold onto the progress made during the pandemic, but continue to make improvements in our judicial system where necessary. For example, we do not allow for service of court documents on opposing counsel via e-mail in British Columbia except by consent. By contrast, the Ontario Superior Court allows for e-mail service of court documents, except originating pleadings, and has committed to continuing the use of video and phone options for some types of proceedings. They have similarly continued to allow for remote commissioning of affidavits, another key pillar of increased access to justice.

ENDNOTES

1. Lepp v The Regional Municipality of York, 2022 ONSC 6978 at para 14.

2. BC Provincial Court, Practice Direction SM CL 02, online: <www.provincialcourt.bc.ca/downloads/ Practice%20Directions/SM%20CL%2002%20 Small%20Claims%20Proceedings%20During%20 COVID-19.pdf>.

3. BC Provincial Court, Notice to Profession NP28, online: <www.provincialcourt.bc.ca/downloads/ Practice%20Directions/NP%2028%20Court%20 Operations%20During%20Communicable%20 Disease%20Phase%20of%20COVID-19.pdf>.

I

WRONG): A TAX PROFESSIONAL’S DUTY TO WARN A CLIENT ABOUT WEAKNESSES IN A TAX OPINION

PART II

By Joel Nitikman, K.C.

This is Part II of an article1 discussing two related issues: If a tax professional gives a tax opinion to a client, does the professional have a legal duty to warn the client that the opinion might be wrong, or that a revenue authority might challenge the opinion in court?

In Part I, I set out U.S. influence on the language of Canadian tax opinions, as well as certain other background considerations, and made a start on analyzing the applicable case law. In Part II, I examine in detail some of the additional case law underpinning my ultimate conclusion, which is that there is no “one-size-fits-all” answer to the question of whether a tax professional has a legal duty to warn a client that an opinion may be wrong and may be challenged by the revenue authorities. As a general rule, the tax professional does not have such a duty. However, such a duty will exist in certain circumstances summarized in Part I of this article and again below.

THE SCOPE OF THE TAX PROFESSIONAL’S RETAINER (CONTINUED)

Among the considerations that inform whether a legal duty arises to warn a client that an opinion may be wrong and may be challenged by the revenue authorities is the scope of the professional’s retainer. As noted in Part I of this article, regardless of whether the law of negligence requires a tax professional to warn their client of a risk that the opinion is wrong or may be challenged, the professional may have a contractual duty to do if that duty is set out expressly or by implication in the professional’s retainer. In evaluating the scope of a retainer, it is important to remember that it may stretch beyond (perhaps well beyond) its express terms.

I AM SURE I AM RIGHT (BUT

MIGHT BE

Ormindale Holdings Ltd. v. Ray, Wolfe, Connell, Lightbody & Reynolds2 is a leading Canadian and Commonwealth decision on the duty to warn. Below, I consider whether it applies to tax advice and discuss how that decision and the concepts in it have been addressed in later case law.

Ormindale Holdings3

As a leading decision on the duty to warn, Ormindale Holdings is worth reviewing in detail. The plaintiff, Ormindale, was a real estate developer. The defendant (“Ray”) was a law firm that had not acted previously for Ormindale. One of Ray’s partners, Mr. Wolfe, was on Ormindale’s board of directors.

During one particular Ormindale board meeting, Mr. Wolfe said that his law firm was of the opinion that Ormindale could carry out a particular real estate development by relying on a “loophole” in a certain provincial statute. The statute was designed to ensure that all term commitments of previously rented residential accommodation would be subject to prior local government approval before being converted to condominiums and sold.

After the meeting, Ormindale retained Ray to give it the required opinion. Ormindale then carried out the development in the manner set out in the opinion. Had the loophole existed, Ormindale would have been able, effectively, to circumvent the declared provincial government policy that conversion of rental accommodation to long-term tenure be permitted only with the consent of the local authorities. Ormindale stood to gain several millions of dollars by avoiding the requirement to win local approval.

Eventually, the B.C. government challenged the plan, which had been carried out by a different developer. The B.C. Court of Appeal, in a 2:1 majority, held that the loophole did not exist.4

Ormindale had stood to gain about $5.5 million if the plan had worked. As a result of the ruling, it lost millions of dollars of construction costs, legal fees and other costs. Ormindale sued Ray.

Ormindale argued three points:

(a)Ray was negligent in giving an opinion that turned out to be wrong;

(b)in the alternative, the opinion was equivalent to a guarantee or a warranty that the plan would work;

(c)in the further alternative, Ray was negligent for not warning Ormindale that the opinion might be wrong.

The B.C. Supreme Court, upheld by the Court of Appeal, ruled against Ormindale on each point.

On the first point, whether Ray was negligent in giving an incorrect opinion, the trial judge, Justice Taylor,5 held that this argument was “plainly untenable”.6 He held that the fact that at least one justice of the Court of

Appeal had dissented and found that the loophole existed was “powerful evidence” that Ray did not give the opinion negligently.7

On the second issue, whether the opinion was a warranty or guarantee, Justice Taylor held it was not. He referred to the idea that Ray had guaranteed the correctness of the opinion as a “novel proposition”.8 Ormindale had argued that Mr. Wolfe, the Ray partner who first suggested the plan at the directors’ meeting, had done so to entice Ormindale to retain Ray and that, therefore, the opinion was a warranty. But Justice Taylor held that Mr. Wolfe had done exactly what he as a director was expected to do: tell the board how Ormindale could achieve its desired real estate project. While that might lead to Ray being retained, that was not the purpose of his advice. Justice Taylor held that no warranty was created and implied that it would take very unusual facts before a lawyer could be held to have guaranteed that an opinion would be correct.9

On the third point, whether there was a duty to warn that the opinion might be wrong, Justice Taylor held that, at least on the facts of this case, there was no such duty. He found as a fact that “the lawyers expressed complete confidence in the scheme and mentioned no risks of failure”10 and that “the defendants, in confidently advocating the scheme, were expressing their honest belief that it was sound in law”.11

Given that he had found already that the opinion itself was not given negligently, Justice Taylor said that the issue boiled down to this: “were the defendants negligent in failing to advise their clients that an argument could be made against the legality of the scheme, even though they were confident that argument would not succeed?”12 Phrased another way, he put the issue as follows: “But when is a solicitor obliged … to advise his client that an opinion which he has confidently formed with reasonable skill and care may still be wrong, so that the client may weigh the risks involved and, if he wishes, seek a second opinion before deciding whether to accept it?”13

Justice Taylor quoted from an earlier B.C. Supreme Court decision (affirmed by the B.C. Court of Appeal) that had held that, while it may be a general rule that “a solicitor should warn his client of the risks involved in the course of action recommended”, that will not always be the case.14 He observed that clients do not appreciate what he called “on the other hand” advice, because they find it confusing and annoying.15 Accordingly, he held that Ray’s duty to warn that its advice might be wrong arose only if Ormindale had been misled into thinking that there was no risk in carrying out the plan.16

On the evidence presented, he held against Ormindale on that point and indeed was very sarcastic of Ormindale in raising the issue: “I cannot accept

that the plaintiffs really believed that their lawyers had found a means by which, with timely action, a gain of $5,500,000 was certain”.17

In the end, Justice Taylor held that Ormindale was a sophisticated client who must have known that a lawyer’s view on a matter of statutory interpretation is an opinion only and that it could be wrong. The lawyer does not need to spell that out in detail. An opinion is just that. A lawyer is not required to give a “formalistic warning to experienced business clients”.18

Most importantly, Justice Taylor held that, on the evidence, the plaintiffs were not “misled into believing the advice they received was other than a legal opinion”. Given that the plaintiffs were “experienced business clients”, Ray was not required to advise them “of the possibility that the opinion, although firmly held, may not, in fact, prevail”.19

The Court of Appeal upheld Justice Taylor’s reasoning in its entirety.20

Applying Ormindale: Arkelian v. Daley, Black & Moriera21

This decision, rendered after Ormindale, involved a claim in negligence by numerous plaintiffs against a tax lawyer and his law firm. The plaintiffs purchased Scientific Research Tax Credits (“SRTCs”) in December 1985 for $5.6 million. In January 1986, the lawyer issued an opinion22 to the plaintiffs confirming that the SRTCs were grandfathered under the transitional rule in subparagraph 194(4.2)(b)(ii) of the Income Tax Act 23 In or about April 1986, the plaintiffs filed their income tax returns for their 1985 taxation years and claimed the SRTCs against income tax otherwise payable for 1985. n 1987, the Canada Revenue Agency (“CRA”) notified the plaintiffs that the SRTCs were not grandfathered, so that they were not entitled to the SRTCs that they had claimed for the 1985 taxation year. The plaintiffs made numerous submissions to the CRA24 and started an appeal in the Tax Court of Canada but did not proceed with it. Rather, the plaintiffs sued the law firm, claiming that the opinion was not only wrong but was given negligently and that the lawyers had failed to warn the plaintiffs that the CRA might reject the SRTC claims.

The B.C. Supreme Court dismissed the plaintiffs’ action. Justice Catliff was placed in the unusual position of a provincial Superior Court justice having to determine a substantive federal income tax matter without any argument from the Crown but, as he observed at paragraph 18, he had no choice, because the plaintiffs alleged that the grandfathering opinion was wrong. If in fact it was correct, then that claim fell away.

It is not necessary to say more about that issue other than that, based on his review of the subparagraph in issue and the expert evidence, Justice Catliff held that the opinion had been correct—the SRTCs were grandfathered.25

Justice Catliff was then left with the issue of whether the lawyers had had a duty to warn the plaintiffs that the opinion might be wrong and be challenged. He held that, on the facts, there was no such duty. If of course the tax lawyer had thought that the CRA might not approve the SRTC transaction, he would have had a duty to say so. Although the tax lawyer had concerns as the transaction was structured initially, he had suggested changes to the plan that in his view would ensure that the SRTCs were grandfathered. The promoters effected those changes. While the tax lawyer knew that the CRA might not agree with his opinion, his view was that they would be wrong in disagreeing and he was not under a duty to advise the investors that the CRA might make an incorrect ruling:

All concerned knew of the possibility of an adverse ruling. (Two of the plaintiffs - Mr. Shaffner and Mr. Sapp - both said they knew there was such a risk). It was discussed among the professionals. There was no failure by Harris or Seifert to disclose the risk. Mr. Harris’ expertise may have put him in a better position to foresee the possibility of an adverse ruling, but having concluded the transaction met the grandfathering and due diligence requirements he cannot be faulted for failing to say that his opinion might be wrong. A lawyer is not required to tell experienced business clients his opinion may be wrong - Ormindale Holdings Ltd. et al v. Ray, Wolfe et al (1982) 36 B.C.L.R. 378. Still less can Mr. Harris be faulted for failing to advise purchasers that Revenue Canada might make a ruling which would be wrong 26

This decision confirms that there is no general duty on a tax professional to say to a client “I may be wrong” or “the tax authorities may think I am wrong”, especially where the client is “sophisticated” or “experienced” in tax matters.

Is Ormindale Still Good Law?

Ormindale is still good law. It was applied by the B.C. Supreme Court to a “sophisticated client” in a non-tax context as recently as January 18, 2018.27

Does Ormindale Apply to Tax Advice?

In addition to Arkelian , Ormindale was applied in a case involving tax advice 28 relating to scientific research and experimental development (“SRED”) tax credits, where the B.C. Supreme Court held that the tax lawyer was not under a duty to warn the client that there was a risk that a certain commission would not be treated as a payment on account of SRED.

The Most Recent Canadian Case: Lindsay v. Aird & Berlis LLP

The most recent decision on point is Lindsay v. Aird & Berlis LLP, 29 in which the plaintiff sued the defendant law firm for “solicitor’s negligence, negligent misstatement, breach of trust and breach of fiduciary duty”.30

The plaintiff was a famous Canadian alpine skier. She had built up an amateur athletic trust fund of about $1 million, including shares of two pri-

vate corporations that she wanted to keep. More than eight years had passed since her last skiing event and, therefore, she was required to wind up the trust.31

The plaintiff got tax advice from Stuart Bollefer, a tax lawyer at Aird & Berlis LLP (“Aird”). He suggested that she engage in a very complicated, insurance-related, charitable tax plan that would somehow (I confess to not understanding the plan at all) allow her to receive the trust funds tax-free (despite paragraph 12(1)(z) of the Income Tax Act) and keep the shares of the two companies.

Unfortunately, the plan failed for a number of reasons, the chief one being that the charity was not registered as a charity with the Minister of National Revenue. The proposed charitable donation was, therefore, not eligible for a charitable tax credit.

In respect of the duty to warn that the tax advice might have been wrong, Justice Dietrich held that “the evidence of the defendants’ negligence in failing to warn the plaintiff of the risks associated with the Plan is compelling”.32

Aird had issued to the plaintiff a written opinion containing certain warnings on the risk of the plan, but not until after the plaintiff’s tax returns for the years in issue were already under audit. Justice Dietrich rejected Bollefer’s evidence that he had given the plaintiff an oral warning. Although she did not cite Ormindale, she held that the plaintiff was unsophisticated in tax matters and that Aird’s duty included the requirement to warn her that the plan might not be accepted by the CRA. Justice Dietrich also held that the duty to warn was so clear that expert evidence of a tax lawyer’s duty in the circumstances was not required.33

The Opposite View: Sheerness v. Brachers

In the U.K. decision of Port of Sheerness Ltd. and Medway Ports Ltd v. Brachers, 34 the plaintiff company wanted to replace all of its employees with independent contractors. It proposed to offer them new work as contractors. The defendant was a law firm that (through its partner Mr. Hannah) provided the plaintiff with an opinion that if the fired employees did not accept the new terms then they could sue for redundancy payments only— that is, they would not receive compensation for unjust dismissal. It turns out that there were two lines of authority on that point, but Hannah’s opinion did not refer to any doubt or qualify in any way the conclusion that the workers could sue for redundancy only. In the result, the workers sued for and received a large unjust dismissal award and the plaintiff sued Brachers for negligence.

Ultimately the suit was dismissed on the basis that the plaintiff had not suffered any loss (because its overall savings were greater than the unjust

dismissal award). But Justice Buckley found that Hannah had been negligent in failing to qualify his opinion. Although there were two lines of authority, one of which supported Hannah’s opinion, that merely proved that “no competent solicitor could reasonably have advised in the terms Mr. Hannah did”.35 Given the amounts involved, the opinion as given, with no “mention of any risk that an industrial tribunal might take the view that it would be an unfair dismissal”, was negligent.

In my view, neither this case nor Lindsay stands for the proposition that a tax professional must in all cases point out the risk of their opinion being wrong or challenged. It appears to depend on the circumstances of each case. In Thomas v. Albutt, 36 some landowners had obtained planning consent for a caravan park. The landowners’ neighbours challenged the consent on an application for judicial review. The landowners retained a barrister, whose advice was that there was a high likelihood of the application being successful on the merits but that the neighbours’ delay in bringing the application could defeat it. He failed to advise the landowners to produce evidence of expenses incurred and other financial prejudice suffered during the neighbours’ delay. He had advised (correctly) that no compensation would be payable if the consent were quashed.

In finding that the barrister was not negligent for failing to give advice on proving financial prejudice, Justice Morgan referred at paragraph 354 to Queen Elizabeth’s Grammar School Blackburn Ltd v. Banks Wilson. 37 In that case the defendant solicitors had drafted a restrictive covenant to govern the plaintiffs when they purchased a property. At a later time the lawyers gave an opinion that certain action would not be a breach of the covenant, although the covenantee was arguing that it would. The Court of Appeal held that there was a real doubt as to the meaning of the covenant. It held also that the solicitors were negligent when they advised on the meaning of the covenant, in that, as Justice Morgan said, “they ought to have pointed out the possibility of and the risk of their construction of the covenant being wrong given that they were advising a lay client”.

Justice Morgan in Thomas v. Albutt at paragraph 355 referred also to Hermann v. Withers LLP 38 The plaintiffs wanted to purchase an expensive house. They wanted to know especially if, as owners of the house, they would have a right to use a nearby garden. This involved an obscure point of property law. The defendant law firm advised the plaintiffs that they would have such a right. In a different case involving the plaintiffs, the court held that they did not have that right. The plaintiffs sued the law firm for negligent advice. Justice Newey held that the defendant’s opinion was reasonably possible so they were not negligent in giving the opinion. How-

ever, Justice Newey held that the lawyers should have realized that their opinion was open to doubt and should have advised the plaintiffs of that doubt.

The court in Thomas pointed out that Queen Elizabeth’s Grammar School and Hermann both involved advice given by solicitors to “lay” or, one might say, legally unknowledgeable clients on the correct interpretation of a document. According to Justice Morgan, “they contain statements of principle as to what is involved in the duty of a solicitor to give advice in such a case”.39 Where such a client is involved, “it is the duty of the solicitor to state not only his opinion as to the correct construction but he will also normally be expected to point out, where appropriate, that there are arguments to the contrary and what the consequences are of his opinion not being upheld”.40

Justice Morgan in Thomas was similarly unimpressed by a reference to Levicom International Holdings BV v. Linklaters. 41 That case involved a claim against the well-known Linklaters law firm in respect of their opinion on the meaning of a document. Based on their opinion, the client was advised to commence arbitration proceedings. The plaintiff later alleged that the opinion was “too optimistic” and in fact had been wrong. At paragraph 249 of Levicom, Lord Justice Burnton held that Linklaters could not “sensibly have advised” that the meaning of the document was “clear”, and they should have opined that there were potential counter-arguments, especially given that an overly optimistic opinion would lead to expensive arbitration proceedings. But Justice Morgan in Thomas, at paragraph 357, said: “I am far from clear that the judgments of the Court of Appeal lay down a general principle as distinct from assessing the detailed facts of that case”.

Justice Morgan concluded his review of these decisions as follows:

I am not persuaded by those decisions, or otherwise, that Mr Albutt was negligent because he failed to warn that there were risks in litigation generally, or in this case in particular. At all times, he was instructed by solicitors. The two solicitors involved, Mr Davies and Mrs O’Connor could be expected to be fully aware that there are risks involved in litigation … I have held that Mr Albutt’s belief in the prospects of success at the time of those conferences was not a negligent belief. He was not asked during those conferences to assess the prospects of success … he expressed the view that it was well worth fighting the judicial review and that it was difficult to predict the course of the litigation. In that context, I do not regard the reference to the risks as to costs being “low” as inappropriate or negligent 42

Accordingly, there is no general rule that a tax professional cannot offer an opinion that reaches a conclusion without pointing out the possibility of an opposite conclusion or of the revenue authorities challenging the opinion offered. That may be the requirement in a particular fact situation, but not in every situation.

IS THE CLIENT SOPHISTICATED IN TAX MATTERS?

As the decisions above confirm, the client’s degree of sophistication is an important factor: on the same facts, a lawyer will not have a duty to warn a sophisticated client and yet will have a duty to warn an unsophisticated one that the opinion given may be wrong. This is borne out by an Alberta decision involving advice given to a husband and his wife, 285614 Alberta Ltd. v. Burnet, Duckworth & Palmer 43 The Alberta Court of Queen’s Bench held that the lawyer was not required to warn the husband of the risk of tax consequences, but was required to warn his wife, who was “clearly inexperienced in business matters”.44

This is reflective of the “nuanced” approach to these issues developed by the U.K. Court of Appeal, discussed below.

It bears emphasizing that for this rule to apply, the client must be sophisticated in tax matters, not merely business matters. Ormindale was distinguished on the facts in a U.K. decision where the High Court found that the client, although an experienced businessman, would not have any basis on which to assume that the tax opinion given by his counsel would be challenged by the revenue authorities and should have been warned about that possibility.45

Perhaps the broadest and most general way of expressing this principle can be found in Carradine Properties Ltd. v. DJ Freeman & Co., 46 where Donaldson L.J. said: “An inexperienced client will need and be entitled to expect a solicitor to take a much broader view of the scope of his retainer and his duties than will be the case with an experienced client”.47

The U.K. Approach

In addition to the U.K. decisions cited above, a relatively recent U.K. decision dealt with a duty to warn in a tax context.48 Mr. Barker started and owned a consulting business in a corporation of which he was the majority shareholder. He wanted to sell the business and naturally wanted to pay as little tax as possible when he did so. To that end, he retained a tax lawyer, Mr. Baxendale, of the law firm of Baxendale Walker Solicitors (“BWS”), to provide him with tax advice. BWS formulated a plan that Mr. Barker followed. Under the plan, Mr. Barker transferred his shares to a non-U.K. trust, known as an employee benefit trust (“EBT”). The EBT’s beneficiaries were members of Mr. Barker’s family, but the trust deed provided that they could not receive income or capital from the EBT while Mr. Barker was alive. BWS opined that this trust avoided the tax imposed by the U.K. Inheritance Tax Act 1984 49

Her Majesty’s Revenue & Customs (“HMRC”) eventually assessed Mr. Barker for inheritance tax. For purposes of this article, it is not necessary to

explain the technical reasoning on which HMRC’s challenge was based. The important point is that Mr. Barker, after consulting with other tax professionals, settled the assessment and paid over £11 million in tax and interest.

Not surprisingly, Mr. Barker then sued BWS. He argued that the firm should have warned him that its opinion might be wrong and that HMRC might challenge it in court.

At trial,50 Justice Roth held that BWS had a legal duty to warn Mr. Barker that HMRC might challenge the tax plan. However, he held that no damages flowed from BWS’s breach of its duty because Mr. Barker would have proceeded with the plan anyway even if BWS had warned him of the risk.

Justice Roth addressed specifically Mr. Barker’s argument that BWS should have warned him that its interpretation of the key provision, section 28 of the Inheritance Tax Act, might be wrong or be challenged. Justice Roth held that no such warning was required because (a) BWS’s opinion on the meaning and application of that section to Mr. Barker’s facts was most likely correct and (b) there did not exist “such strong factors favouring an alternative construction that this should have been pointed out by a lawyer presenting a balanced view to their client”.51 In other words, section 28 was so clear that BWS was not required to warn Mr. Barker that there might be an alternative meaning. Justice Roth at paragraph 178 concluded by holding that a lawyer whose opinion is likely correct does not have a duty to warn the client that the opinion might be wrong. On the other hand, where a competent lawyer would understand the arguments to be “finely balanced” on both sides of an issue, “so that any reasonably careful lawyer (of appropriate expertise) should have been alerted to the significant possibility of a contrary view”, then there may be a duty to warn the client of the weaknesses in the opinion.

Barker appealed Justice Roth’s judgment to the U.K. Court of Appeal.

The Court of Appeal began by holding that BWS’s interpretation of section 28 was wrong and HMRC’s was correct. Therefore, although BWS’s opinion was not negligent, it was certainly incorrect and led to the payment of Mr. Barker’s tax.

As to whether BWS had a duty to warn Mr. Barker that its opinion might be wrong and be challenged, the Court of Appeal held that this depended on the view that a reasonable tax lawyer could take of section 28 and was “also dependent upon whether contrary arguments as to construction are of sufficient significance to require specific mention when taken with the degree of risk inherent in the circumstances and the importance in those circumstances of a balanced view of the provision”.

Justice Asplin held the principles could be summarized as follows:

(i) the question of whether a solicitor is in breach of a duty to explain the risk that a court may come to a different interpretation from that which he advises is correct is highly fact sensitive;

(ii) if the construction of the provision is clear, it is very likely that whatever the circumstances, the threshold of “significant risk” will not be met and it will not be necessary to caveat the advice given and explain the risks involved;

(iii) however, depending on the circumstances, it is perfectly possible to be correct about the construction of a provision or, at least, not negligent in that regard, but nevertheless to be under a duty to point out the risks involved and to have been negligent in not having done so;

(iv) it is more likely that there will be a duty to point out the risks, or to put the matter another way, that a reasonably competent solicitor would not fail to point them out when advising, if litigation is already on foot or the point has already been taken, although this need not necessarily be the case; and

(v) the issue is not one of percentages or whether opposing possible constructions are “finely balanced” but is more nuanced. 52

Justice Asplin went on to hold that a lawyer providing tax advice must determine, as part of giving the advice, and not as some separate matter, if he or she should warn the client that the advice may be wrong, depending on “all the circumstances”,53 including “the fact that this was a very aggressive tax avoidance scheme”,54 that “the potential charge to tax was very large”55 and that the lawyer’s “fee was in the region of £2.4m”.56 These are at least some of the factors that make the decision whether to warn “more nuanced” than simply looking at how uncertain is the tax advice being given.

In addition to the main reasons for judgment by Justice Asplin, there were two concurring sets of reasons. From reading these, it seems that the Court of Appeal’s finding that BWS had a duty to warn Mr. Barker that its opinion might be wrong, or at least challenged by HMRC, was influenced heavily by its finding that the firm’s opinion was wrong legally or at the very least very finely balanced as to whether it was correct.

Therefore, while the duty to warn does not arise simply because the law is not clear, the unclearness of the law is a factor, perhaps a significant one, in determining if there is a duty to warn.57

Applying Barker: David McClean and Others v. Andrew Thornhill QC58

Barker was cited in McLean v. Thornhill. The claimants were members of limited liability partnerships (“LLPs”) that were formed for the purpose of participation in the distribution of films. Participation in the LLPs was marketed to potential investors on the basis that they would be entitled to tax relief against their income or capital gains for trading losses that the LLPs were anticipated to make. These were essentially schemes designed to

afford tax benefits to high net worth individuals, but the schemes failed. HMRC refused the reliefs and eventually made a settlement offer to the investors, all of whom accepted. The defendant (“T”) was an eminent tax barrister. He had been engaged by the promoter of the schemes to provide advice on their tax consequences. The investors claimed that T owed them a duty of care in respect of the advice he gave to the promoter. The investors had relied on that advice in entering into the schemes, and contended that T breached that duty of care. The court concluded that no duty of care was owed by T to the claimants for the advice in relation to the schemes. T was not engaged to advise any of the claimants, and none of the claimants were his clients. It was objectively reasonable for T to assume that the investors would obtain independent professional advice, as they were advised to do (and indeed were required to warrant that they had done) in the information memorandum published as part of the scheme marketing. Insofar as the claim was based on T’s failure to warn that there was a significant risk that his views might be wrong, the implicit statement that the promoter’s understanding of the tax analysis was consistent with T’s opinion told potential investors nothing about the terms in which T’s opinion had been expressed or the extent to which it was caveated by such risk warnings. Even if T had owed a duty of care to the claimants, he would not have breached it. On a detailed review of the case law as it stood at the time and a thorough review of developments in the judicial approach to that question in the intervening years, the judge rejected the claim that the approach T had adopted to the question of trading was one to which no reasonably competent tax Q.C. could have come. In addition, none of the claimants had established that the loss suffered by them was caused by any breach of duty by T. The claimants were unable to claim on the basis that the schemes would not have been promoted at all if T had advised differently, both as a matter of law and because the claimants had not established this as a matter of fact.

WHERE ARE WE NOW?

Based on Canadian59 and U.K. decisions, one may conclude that there is no “one-size-fits-all” answer to the question of whether a tax professional has a legal duty to warn a client that an opinion may be wrong and may be challenged by the revenue authorities. As a general rule, the answer is that the tax professional does not have such a duty. But, as set out in Part I of this article, such a duty will exist where:

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

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

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

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

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

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

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

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

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

(vii) what actions the client took independently of the lawyer;60 and

(vii) how aggressive the tax plan is.

WHAT IF THERE IS A GUARANTEE?

Where, in the unlikely situation that a lawyer has in fact guaranteed that the revenue authorities will accept a client’s tax return as filed, then the rule in Ormindale will not save the lawyer. In Cannon, 61 the plaintiffs sought to bring a class action against a tax lawyer (among others) in respect of a “buy low, donate high” charitable donation tax plan. The lawyer brought a motion to strike out the statement of claim. On such a motion, the facts alleged in the statement of claim are deemed to be true. One such alleged fact was that the lawyer had guaranteed that the CRA would accept the plaintiff’s tax returns as filed. Taking that alleged fact as being true, the Ontario Divisional Court held that it was irrelevant that some of the plaintiffs might be sophisticated and hence not entitled at common law to a warning that the tax opinion might be wrong.62

CONCLUSION

In today’s “sue now, ask questions later” environment, tax professionals are understandably reticent to issue an opinion without qualifying it six ways from Sunday as to the potential weaknesses in the opinion, the fact that it is not a guarantee and that the relevant tax authority may challenge it in court. That practice is, perhaps, too well entrenched at this point to be stopped. But, in my opinion, such qualifications are not necessarily a best practice nor, more importantly, required legally. It behooves all tax professionals, for each opinion, to consider what qualifications and assertions of risk it should contain, rather than using boilerplate language in every opinion to cover off such risks.

ENDNOTES

1. Part I was published in (2023) 81 Advocate 43. See endnotes 1–3 of Part I for further discussion of the scope of the article and of the term “tax professional”.

2. Ormindale Holdings Ltd v Ray, Wolfe, Connell, Lightbody & Reynolds, 1980 CarswellBC 635 (SC) [Ormindale (SC)], aff’d 1982 CarswellBC 748 (CA) [together, Ormindale].

3. Ormindale is famous enough to have been cited in Australian and UK decisions. See e.g. Trust Co of Australia v Perpetual Trustees WA Limited, [1997] 42 NSWLR 237 at 247D; Titan Corporation v Kirby, unreported, Supreme Court of Victoria, BC 9703881 (25 August 1997), where Ormindale is cited for the principle that “where an expression of opinion is offered by solicitors to experienced men of business, at all events where the possibility of the opinion being wrong has by some means been brought to the attention of the client, or where the potential consequences of it being wrong are evident, the solicitor’s duty does not ordinarily require that he advise that his opinion may be wrong”; Grimm v Newman, [2001] EWHC Ch 454. It is also cited in the leading UK textbook John Powell et al, eds, Jackson & Powell on Professional Liability, 8th ed (London: Sweet & Maxwell, 2017) at 837, s 11-162.

4. Re Securities Act and Alder Apartments Ltd (Vancouver Registry, January 31, 1977), an appeal from a decision of the Financial Services Commission upholding the ruling of the Superintendent of Brokers.

5. Later elevated to the BC Court of Appeal.

6. Ormindale (SC), supra note 2 at para 21.

7. Ibid at para 31.

8. Ibid at para 23.

9. Ibid at paras 29–30.

10. Ibid at para 25.

11. Ibid at para 26.

12. Ibid at para 31 [emphasis in the original].

13. Ibid at para 33.

14. Ibid at para 35.

15. Ibid

16. Ibid at para 36.

17. Ibid at para 38.

18. Ibid at para 39.

19. Ibid at paras 39–40.

20. Ormindale, supra note 2 has been discussed in a number of other articles. See e.g. David W Smith, “Dealing with Tax Risk in an Opinion”, Report of Proceedings of Forty-Sixth Tax Conference, 1994 Conference Report (Toronto: Canadian Tax Foundation, 1995), 38:1 at 38:5/6.

21. 1992 CarswellBC 2851 (SC).

22. An interesting point is that the tax opinion, as is almost always the case, was based on facts assumed by the tax lawyer to be true. The plaintiffs criticized him for assuming such facts without verifying them, but Justice Catliff absolved him of any liability for assuming the facts to be true, stating:

[25] There was criticism of the solicitors for basing their opinion on “assumed facts”, but unless the solicitors had undertaken independently to verify the facts, it is difficult to see how otherwise their opinion could have been based. (In fact Mr. Gillespie I’s participation was independently verified.)

Mr. Seifert said that Mr. Shaver advised him that he had verified the facts on which his opinion was based, i.e. independently confirmed their truth, but I find Mr. Shaver did not advise Mr. Seifert of this. I accept Mr. Shaver’s evidence in this regard and find that his opinion was based on facts he obtained from sources he believed trustworthy, but were not facts he independently verified. For more on “facts” and “assumptions”, see Jean Potvin, “The Legal Liability Incurred in Giving a Tax Opinion”, Report of Proceedings of Forty-Sixth Tax Conference, 1994 Conference Report (Toronto: Canadian Tax Foundation, 1995), 35:1 at 35:10; Smith, supra note 20 at 38:16.

23. Currently cited as RSC 1985, c 1 (5th Supp), as amended but at the time cited as SC 1970-71-72, c 63, as amended [Act].

24. I was a lawyer in a firm retained to make such submissions. I do not remember if I participated in drafting such submissions, although I may have.

25. Supra note 21 at para 58.

26. Ibid at para 66 [emphasis added].

27. Laidar Holdings Ltd v Lindt & Sprungli (Canada) Inc, 2018 BCSC 66 at para 466.

28. International Submarine Engineering Co v Briant, 1988 CarswellBC 2732 at paras 165–66 (SC), aff’d 1990 CarswellBC 1592 (CA).

29. 2018 ONSC 7424.

30. Ibid at para 1.

31. Act, s 143.1(3).

32. Supra note 29 at para 28. Interestingly, in finding that the tax lawyer was negligent, the court rejected his submission that expert evidence as to the applicable standard of care (which the plaintiff did not tender) was required and held, “as a general rule, that it will not be possible to determine professional negligence without expert evidence except in cases where: 1. the court is faced with non-technical matters; 2. an ordinary person may be expected to have knowledge; or 3. the impugned actions of the defendant are so egregious that his or her conduct has fallen short of the standard of care, even without knowing the precise parameters of the standard” (ibid at para 46, cited with approval in Li v Macnutt & Dumont and Walters, 2019 PECA 30 at para 19). The court held that exception 3 applied (“[t]he defendants’ failure to advise the plaintiff of the significant legal risk in pursuing the Plan falls squarely within the exception of a failure to warn where the duty to warn was clear. In such cases, expert evidence of solicitor’s negligence is not required”: ibid at para 50).

33. Supra note 29 at para 50. In a related matter, Continental Casualty Company v Lawyers’ Professional Indemnity Company, 2020 ONSC 7131, the company that insures lawyers in Ontario, LawPRO, was sued by the insurers that had agreed to provide excess insurance to LawPRO. The excess insurers’ claim was that Lindsay’s lawsuit had involved more than one “claim”, so that LawPRO was required to contribute $1 million for each claim, whereas LawPRO viewed everything as a single claim.

34. (1996), [1997] IRLR 214 (QB), application for directions on leave to appeal dismissed, unreported, UKCA, November 23, 1998.

35. Ibid at para 17.

36. [2015] EWHC 2187 (Ch).

37. [2001] EWCA Civ 1360.

38. [2012] EWHC 1492 (Ch).

39. Supra note 36 at para 356 [emphasis added].

40. Ibid.

41. [2010] EWCA Civ 494.

42. Supra note 36 at para 358 [emphasis added].

43. 1993 CarswellAlta 297 (QB).

44. Ibid at para 38.

45. Grimm v Newman, [2001] EWHC Ch 454 at para 73.

46. (1982), 126 SJ 157 (CA) [Carradine].

47. In Doolan v Renkon Pty Ltd, [2011] TASFC 4 the court referred to this passage from Carradine and said:

[37] Those words do not appear verbatim in the report of the case in the Solicitors’ Journal, which gives only a summary of the judgment. However they were quoted with approval by Peter Gibson LJ, with whom Hobhouse and Leggatt LJJ agreed, in National Home Loans Corporation v. Giffen Couch & Archer, [1998] 1 WLR 207 at 213. However, the Carradine decision is reported at [1955-95] PNLR 219, available on Westlaw, where the full quotation is as follows:

A solicitor’s duty to his client is to exercise all reasonable skill and care in and about his client’s business. In deciding what he should do and what advice he should tender the scope of his retainer is undoubtedly important, but it is not decisive. If a solicitor is instructed to prepare all the documentation needed for the sale or purchase of a house, it is no part of his duty to pursue a claim by the client for unfair dismissal. But if he finds unusual covenants or planning restrictions, it may indeed be his duty to warn of the risks and dangers of buying the house at all, notwithstanding that the client has made up his mind and is not seeking advice about that. I say only that this may be his duty, because the precise scope of that duty will depend inter alia upon the extent to which the client appears to need advice. An inexperienced client will need and will be entitled to expect the solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client. [Emphasis added.]

In Calvert v Badenach, 2015 TASFC 8, the court expressed this thought as follows: “What can be distilled from the discussion in Renkon is that, in determining the scope of a solicitor’s duty of care to a client in contract, some regard should be paid to the particular client and, what I might describe as, the dynamics between the client and the solicitor” (para 20 [emphasis added]).

48. Iain Paul Barker v Baxendale Walker Solicitors (a firm), [2017] EWCA Civ 2056. The tax lawyer, Mr. Baxendale, is a very famous or, some may say, infamous person. See “Paul Baxendale-Walker”, Wikipedia, online: <en.wikipedia.org/wiki/Paul_ Baxendale-Walker>.

49. 1984, c 51.

50. [2016] EWHC 664 (Ch).

51. Ibid at para 147.

52. Ibid at para 61 [citations omitted, emphasis added].

53. Ibid at para 59.

54. Ibid at para 65.

55. Ibid.

56. Ibid

57. In a decision of the same court decided only ten months previously, Balogun v Boyes Sutton and Perry, [2017] EWCA Civ 75, cited in Barker, a sub-

tenant argued that his solicitors had failed to follow his instructions to provide him with adequate advice as to the permission he needed from the superior landlord to use a ventilation shaft for his restaurant. He argued that the sublease did not correspond with the head lease and accordingly he did not enjoy a right to connect to the ventilation shaft. The trial judge found that he had not given such instructions. The subtenant appealed and argued that even if he had not given such instructions, the solicitors should have advised him to negotiate an amendment to the sublease so as to avoid the risk. The Court of Appeal held that on a proper construction the sublease did create a right to connect to and use the ventilation shaft. Nevertheless, the court held as follows:

[36] It seems to me, however, that there is more substance in the second version of the appellant’s case under this ground. In the Queen Elizabeth’s School case a solicitor was asked to advise the school on the meaning of a restrictive covenant which the solicitor had negotiated. In subsequent legal proceedings in professional negligence against the solicitor the court was not asked to rule on the meaning of the covenant but only on whether there was real scope for doubt as to what it meant. The Court of Appeal concluded that there was. Arden LJ (at [47]) considered that the solicitor knew that a dispute was potentially to emerge with a neighbour over the effect of the clause and in those circumstances it behoved him to point out there was a risk about his construction of the clause. The arguments supporting the contrary construction were of sufficient significance to meet the threshold that they should have been pointed out to the client. Sedley LJ (at [49]–[50]) considered that this was a covenant which was likely to give quite a lot of trouble to a court called on to construe it. However, even accepting that the solicitor’s interpretation was entirely defensible, so that there was no way of saying that a competent solicitor could not arrive at it, it could on no defensible view have been so confident as to relieve the solicitor of the need to enter the caveat that a court might construe it differently. (See also Herrmann v. Withers LLP [2012] EWHC 1492 (Ch), per Newey J. at [73] – [74].)

[38] The question whether a solicitor is in breach of a duty to warn his client of the risk that a court may come to a different interpretation from that which the solicitor advises is correct will necessarily be highly fact-sensitive and will depend on the strength of the factors favouring a different interpretation and thereby giving rise to the risk. In the present case, there was no notice that a contrary view was held. Nevertheless, I consider that if Mr Davies had considered the relevant provisions as he should, he would have appreciated that there was a possible non-correspondence between the terms of the headlease and the underlease in relation to access to the ventilation shaft, a matter of great importance to his client’s project. Notwithstanding my conclusion as to the correct interpretation of the provisions, I consider that the risk of a court coming to a different conclusion was sufficiently great to require Mr Davies to advise his client accordingly and to take steps to amend the draft underlease so as to remove the risk. Accordingly I consider that Mr Davies was in breach of duty owed to his client in failing to do so. [Emphasis added.]

58. [2022] EWHC 457 (Ch).

59. In Laidar Holdings, supra note 27, it was argued that a person who relies on a lawyer’s incorrect (but not negligent) advice has been contributorily negligent. The court disagreed and held: “A solicitor is not negligent merely by failing to correctly predict the result of potential litigation, nor by failing to warn a sophisticated client that an opinion might not prevail” (para 466 [emphasis added]).

60. See Austrust Ltd v Astley (1993), 60 SASR 354 at 372 (SC), citing Ormindale, supra note 2.

61. Cannon v Funds for Canada Foundation, 2012 ONSC 6101 at para 150 (Div Ct).

62. The court noted: “The defendants might have said: ‘This is our opinion; we have complete confidence in it; but you must understand that it could be wrong. No one can be certain what a Court will decide on a question of law, and even when a Court has decided, its decision may be upset on appeal’. But I do not think a lawyer is required to give that sort of formalistic warning to experienced business clients” (para 148 [emphasis added]).

BE IT RESOLVED THAT NO ONE SHOULD BE THE JUDGE IN THEIR OWN CASE: A REVIEW

By Virgil Braithwaite

At the Roundhouse Theatre on March 2, 2023, under the auspices of the BGuiled Debate Society, I found myself in an audience of lawyers listening to the above question being debated by three solicitors and an allegedly unregulated barrister. Their performance was being judged by the crème de la crème of the legal profession: a B.C. Supreme Court judge, an attorney general, a law journal editor, a vice president of the CBABC and a lawyer who was a former BGuiled Debate winner—now event sponsor—who looks funny.

When I entered the theatre, the show was ready to go. The five judges were seated between the audience and the debaters. The irony did not escape me that those supporting the negative motion could simply rest without a word, arguing they had already won as “judges in their own case”. But there would be no fun in that. As the lights dimmed, I made my way to a front-row seat next to a young woman and two older persons whom I thought I recognized.

Kaja Marinic, barrister and comedian, chaired the debate, which she promised was meant to emphasize joy and hilarity in our often dreary profession. She spoke on behalf of the committee that is responsible for this lighthearted night: herself, Michael Larsen, James Struthers, Tanya Thakur and Nazanin Khodarahmi. She introduced the teams. For the resolution stood Eli Zbar and Nazanin Khodarahmi, the “returning losers” from the 2020 BGuiled Debate. Against them on the “con” team stood Kai Benson, the lawyer allegedly unregulated by any Law Society, and Robert Biggar, a stillregulated lawyer who finds comedic debating costs less than his therapy sessions.

First, Nazanin began by questioning why she was even allowed to be a debater, because she is both a solicitor and a director of the BGuiled Debate Society. Within her speech, she proposed some large-scale changes by the Law Society, including a rule wherein opposing counsel should have to text first before calling her, and that all judges should sit in swivel chairs like

they have on “The Voice” that only rotate toward the speaker when the judge agrees with what they’re saying. Her position, ultimately, was that no human person should be able to judge a trial, as it was time for the profession to accept their AI replacements. The audience lapped it up and, joining in with the group beside me, I haven’t laughed so hard since the last BGuiled Debate.

Eli spoke of Natural Justice, which is (in his words) a “bullshit euphemism”, and compared it to the better replacement concept of organic, natural-grown, vegan, Beyond Justice. Then, he offered a nugget of reason: laws and rights don’t exist without judges. Here was the darker side of satire. If justice was natural, Eli asked, then how would we explain the entire course of human history? “Boys will be boys?” Yet, for all the law’s injustices, “I’m still choosing to be a lawyer,” he said. He then concluded his argument by stating that he had to leave as he had a pack of Starburst in his car and the orange flavour was up next.

The challenge was issued by the proposition side, in turns through outright laughter and guarded irony, for the against side to answer.

And answer they did.

First was Kai, a former criminal defence lawyer now ungoverned by the Law Society—or, seemingly, any human society at all—who turned to philosophical humour. He first pointed out that your own judgment of yourself is the only one that really matters to you. Left wing anarchists and freemen on the land are their own judges. We could, he pointed out, save a lot of money if an accused just judged his or her own actions, as many accused would proudly admit their own guilt. There need not be any expensive trial. He acknowledged that he had painted himself into a pro-serial-killer position, but this is the spirit of zealous advocacy. Then he lapsed into the story of Jesus, who didn’t defend himself. There was promise of more meandering roads, but his time was up.

Rob spoke of the maxim in the context of feminism, quipping that the proposition side may believe that judges can tell women what to do with their bodies, but he, a feminist, believed in a woman’s right to govern her own body. There was more to it, but it is likely unpublishable.

At the end of the debate, the opposition gave a succinct six-word rebuttal, eloquently yelling that orange is the worst Starburst flavour.

The proposition’s sur-rebuttal impugned Rob’s assertion that he supported a woman’s right to choose, when Nazanin (a woman) had no choice but to listen to Rob’s speech. The proposition further called into question Kai’s wariness of judges, asking if it was rooted in the number of criminal trials in which Kai was mistaken for the murderer.

The proposition prevailed with unanimous judgment in their favour.

At the conclusion of the debate, Robert H. Guile’s good friend, Bruce Fraser, K.C., gave an impassioned speech about the great man who inspired the debate, and the value of continuing this unique tradition to inject levity and comradery into the profession.

I turned to my group and found I was sitting next to Greg and Virginia, son and daughter of Bob Guile, and Bob’s granddaughter. We all agreed that Bobby Guile and his friend Walley Lightbody would have enjoyed the show. The proceeds from the box office will be donated to Access Pro Bono. I am already counting the days until next year’s version.

THE WINE COLUMN

By Michael Welsh, K.C.*

THE AGE OF RIESLING

I have said it before on this subject, but it bears repeating: Jancis Robinson, arguably the world’s most famous wine critic, is far from mad. Rather, she remains ahead of the curve, as she advocated for Riesling for years when it was otherwise ignored as a rather sweet and low alcohol concoction from Germany in a world that was gravitating toward heavily oaked Chardonnays and blockbuster reds from California and Australia. Now the world is increasingly following in her direction, back to lighter and more nuanced wines, of which Riesling can be the apotheosis. Wine writers are touting its manifold forms from several regions in addition to Germany, most notably Alsace in France, Austria, Australia, Ontario, New Zealand, New York, Washington and here in British Columbia. Hugh Johnson (Robinson’s main competitor for top critic) calls it “the epitome of the most aromatic, least full-bodied, most transparent and brilliant in flavour” of wines.1 For unlike many other white grapes that rely more on winemaking to produce character, Riesling takes on differing forms from two things: the place of its planting and its time spent in the bottle.

* Michael Welsh, K.C., carries on a litigation and ADR practice in the South Okanagan and is a bencher. The views expressed here are his own and not those of the Law Society.

“I think that Riesling is indisputably the greatest white wine grape in the world but many people think I am mad.”

—Jancis Robinson

It has terroir in its heart (even though I am not aware of a German equivalent of that famous French term). As Robinson goes on to say in an article on her website:

Whereas Chardonnay in most cases presents the winemaker with an almost blank canvas on which to paint the traces of his techniques and processes, Riesling has its own very distinctive character which varies immensely and excitingly according to exactly where it is grown. Riesling responds rather badly to winemaking tricks. It is happiest when it is just fermented as simply as possible and the pure fermented juice bottled with minimal resort to oak, malolactic fermentation, lees stirring and so on.2

Another wine author notes that “more than almost any other variety, Riesling takes on the characteristics of the locality where it is grown, and brings them out in its wines”. That author continues that these wines “have a fine fruitiness on the nose, with an aroma of apples, peaches, grapefruit, and other citrus fruits, or in the case of top ‘Prädikat’ wines, of honey and exotic fruits. On the palate Rieslings have a lively acidity and good body (although usually low alcohol levels between 8 and 11%) … and their flavour is almost always intense.”3

Then there is its ability to age. With that maturity comes more complexity and character (something we all aspire to as we gather the years). Due to Riesling’s high natural acidity, the finest Rieslings age very well in the bottle—this is when those interesting petrol aromas (goût de pétrole) develop alongside complex flavours of honey and dried fruit. A fine Riesling can age as well if not better than a fine Bordeaux.

This move to Riesling is not new. It is a circle, returning to a time when Riesling ruled among white wines. Why that was so, why it fell from grace and why it is now rising again is a fascinating tale that is timely, as I write this article on March 13—International Riesling Day—and as we enter another spring in the vineyards.

The parentage of Riesling is believed to be from Traminer and Gouais Blanc or Weißer Heunisch (an ancient variety no longer much grown) mixed with some wild vinifera varieties. The first documented reference to Riesling is March 13, 1435, when the storage inventory of Count John IV of Katzenelnbogen in Rüsselsheim (a small principality on the Rhine, close to today’s Rheingau) lists “22 shillings for Riesling vine cuttings for the vineyard”.4 In 1464, the St. Jacob Hospice in Trier purchased 1,200 “Ruesseling” vines. There are other undocumented references dating back a century or so earlier in Wachau in Austria in 1232, Westhofen in Rheinhessen in 1402 and Alsace in 1477. An undocumented tale of Riesling from the 14th century tells of Cistercian monks at Eberbach disappointed in their light Rhein-

gau reds compared to the fuller reds of the French. Their instruction to their growers to remove all plantings other than the whites ensured the spread of the Riesling vine.

While the origins of its name are not clear (although theories abound), it was certainly established by the mid-1500s, as the famous botanist, Hieronymus Bock, uses it then in his book on herbs. His 1577 edition states that “Riesling was growing in the Mosel, the Rhein, and the environs of Worms”, areas where great Rieslings are produced to this day. By the 17th century, “Ruessling”, according to a journal published in 1703, was planted throughout the Palatinate (a region in southwestern Germany).5 The heart of German winemaking remains in this area (so much so that it is the only German state to have its own Cabinet minister for winegrowing!).6

By the late 19th century, Riesling was the dominant variety in the Rheingau and was significant in the rest of Germany. It had fans at home and abroad, especially in England. It is likely due to the throne being taken by German George I of the House of Hanover in the 18th century (and later Queen Victoria and her German consort, Prince Albert) that Riesling was very popular in England, where it was known as “Hock” (from “Hochheim”, a town on the Main river in the Rheingau wine region).

Before technology in wineries could stabilize them, the low temperatures in winter of the northern German regions would halt fermentation and leave the resulting wines with natural sugars and low alcohol content. This became a hallmark of German Riesling. As a result, historically the sugar levels at time of harvest are an important consideration in the wine’s production, with “Prädikat” levels measuring the sweetness of the wine, although equally important are the acidity levels so that the wine will be balanced. Thus, the wines that are of marked quality depend on this labelling, Qualitätswein mit Prädikat (“QmP”)—quality wine with special qualities. For those who are good at memorizing, QmP wines have subdivisions based on lateness of picking, from regular harvest Kabinett, through late harvest Spätslese, Auslese and botrytis-affected Beernauslese to Eiswein and the ultimate, Trockenbeerenauslese or TBA, which is a rare wine from hand-sorted botrytis-affected grapes that few of us could ever afford. Botrytis cineraria or “noble rot” is a nectrotrophic fungus that infects grapes causing them to shrivel and lose water so that their flavours become more intense. The Latin name means “grapes like ashes” from the colour of the bunches, and another term often used for it is grey mould.

These famous dessert Rieslings are by legend accredited to one Schloss Johannisberg in the Rheingau who “accidentally” created the first Spätlese in 1775. Supposedly, the messenger bringing the official order to start pick-

ing was robbed on the way. By the time he arrived, the grapes were infected with botrytis and were given to the peasants, who brewed their own wonderful wines, and the rest is history. Those luscious Rieslings of Europe still compete with the rich Riesling icewines of Canada. The ability of Riesling grapes to develop high sugar levels while maintaining acidity is why they age so well.

So how did Riesling fall from favour? My own theory involves several factors.

First, the ever-efficient Germans developed new white varieties that were easier to grow and produced larger crops, such as Silvaner, Kerner and the very mundane but dependable Müllar-Thurgau (or Rivaner). The resultant wines were cheaper to produce, but also tasted cheaper (sweet and flabby, although Silvaner and Kerner cropped low and handled carefully can produce decent wines). German growers, spurred by these new trends in science, began ripping out Riesling and planting these upstarts. By 1930, only fifty-seven per cent of the vines planted in the Rheingau were Riesling.

A second factor was the marketing success of the infamous Blue Nun, one of the first in a line of wine disasters hiding behind cute labels (think “Yellow Tail” as the epitome of this movement of marketing over quality). Discriminating consumers forgot, as one writer puts it, that “despite the image that Blue Nun worked so hard to create in the 1970s, Riesling is not all low-quality, sickeningly sweet plonk that will strip the chrome off a bumper”.7 In fact, like its infamous and risquély named partner, “Liebfraumilch” (Loving Wife’s Milk), Blue Nun had very little Riesling in its blend. But many of us were just learning to drink wine, and in those days, sweet and cheap was the gateway we entered on our journey.

An additional irritant was the Austrian “anti-freeze” scandal of the 1980s when certain wineries were “busted” for illegally adulterating their wines using diethylene glycol (a primary ingredient in some brands of anti-freeze) to make them appear sweeter and more full-bodied. As a result, the reputation of Riesling took a further slide.

As consumers’ palates gained in sophistication, they moved to dry fullbodied whites such as Chardonnay and then to other dry French and Italian wines. The trend moved next to New World wines, also usually dry, from California, Australia, New Zealand and South America. With its delicate, often off-dry whites, Germany was forgotten or dismissed based on recollections of those cheap wines with which it had flooded the market earlier. As Jancis Robinson says:

This is such a shame since the quality of Riesling has never been higher. German Riesling has been transformed from the sugarwater of the 1970s and 1980s to being a wonderfully appetising wine at all levels of sweet-

ness, including, crucially, bone dry. In fact 60% of all German Riesling is now either trocken or halbtrocken (dry or half dry) and is just as suitable as, some would say more suitable than, a fine white burgundy with food.8

Fortunately, the Germans saw the error in their ways and have again, as they did centuries ago, pulled much of the lesser vines and replanted Riesling. They have also moved to increase quality to historic levels and beyond with the aid of modern wine technology. They recognize Riesling as their treasured grape, just as the Burgundians have embraced their Pinot Noir and Chardonnay, and the Tuscans their Sangiovese. They also developed a new classification of drier wines, Grosses Gewächs, of which, as noted by Robinson, there are dry (trocken) and off-dry (halbtrocken) kinds.

Riesling has also been grown historically in Austria, Switzerland and the Alsace. The wines produced in the latter are also deservingly famous, usually dry with steely backbones overlaid with luscious fruit. Some LDB Signature stores carry a limited selection of Alsatian wines, as do the larger private stores.

The first reference to Riesling in Australia was in 1820 when 20 acres of vines, including this variety, were planted near Penrith in New South Wales. Thanks to the 19th-century influx of religious refugees from Silesia—part of Poland today but German then—Australia has more Riesling in the ground than any country other than Germany. For much of its history on that continent, it was a sweet plonk, but that has changed:

Both the Clare Valley north of Adelaide and Eden Valley to the east have established reputations for great dry Riesling, the sort of punchy, confident wine that goes perfectly with the Pacific rim cuisine of which Australians are now so proud. This is Riesling at its most alcoholic, sometimes as much as 12% alcohol, but it has real nerve and, in the Eden Valley, a certain floral quality to it while Clare Valley Riesling is often more lime-scented.9

There is growing production in New Zealand, although it is far behind its signature Sauvignon Blanc or Pinot Gris.

The other main producer these days is North America. Riesling is the signature grape of the Finger Lakes area of New York, where I lived for a few years while in university. Plantings in New York go back to the 19th century. Finger Lakes Rieslings are generally light and delicate in the German style and run the full range from dry to sweet. In those long-ago university days in Ithaca, friends and I periodically cruised the wineries of the area and sampled the Rieslings, of which I remember most those by the Dr. Konstantin Frank Winery at Keuka Lake. It is impossible to get any in British Columbia. Even on a trip to New York City a few years back we were surprised to find none on the wine lists in most restaurants.

Riesling also has a home in Canada’s main wine regions, east and west. We tried some examples during a recent trip to Nova Scotia. In Ontario, on the Niagara Peninsula, it is produced as table wine and icewine. Niagara Rieslings tend to be vinted dry or slightly off-dry. Niagara’s summer heat makes for higher sugars (thus alcohol) and brighter, fuller flavours. Again, they are very hard to come by in British Columbia. I spoke with the owner of a large private wine store about the reason for this. He blames the provincial liquor monopolies. The markups both in Ontario and then again in British Columbia mean the price is prohibitive, especially as these days you can order it online directly from the Ontario winery to your home at a fraction of that cost. The difficulty is knowing what to order. Websites such as WineAlign, Vivino or Natalie MacLean are great for the necessary research if you want to take the plunge.

Riesling production is currently on the rise in the State of Washington. The styles again run from dry to sweet, with light fruitiness balanced with crisp acidity and minerals. The largest and most famous producer is Chateau Ste. Michelle. It has in recent years moved more to a German-style production method, partnering with well-known German vintner Dr. Ernest Loosen to create specialty wines such as the Eroica Riesling. With annual productions of over 600,000 cases, it is the worldwide leader in volume production of Riesling wines. Its success has caused significant increases in Riesling plantings in Oregon (where it is close behind Chardonnay) and California.

In British Columbia, Riesling has been produced for a few decades. It was one of several German varieties tested here when growers began experiments in the late 1980s with European varietals to replace the hybrids torn out after the Free Trade Agreement, and it has found its niche first in the icewine arena and more recently as a table wine. Producers, such as Gehringer Brother’s Estate Winery in Oliver, Wild Goose Vineyards in Okanagan Falls, Lang Vineyards in Naramata, Sperling Vineyards in Kelowna and Gray Monk Estate Winery in Lake Country, have made it a focus for many years, and have been followed by several wineries in Penticton, Kelowna and Lake Country, some of which I review. One notable example, whose splendid entry-level wine I have lauded in previous columns, is Tantalus Vineyards in east Kelowna (available from BC VQA stores, private wine stores and the winery at about $28). It is also finding a footing in the Thompson Valley and at Fort Berens Estate Winery in Lillooet.

Here is a cross-section of examples. Given it is hard to buy better Riesling from outside British Columbia and there are good local examples, the selection is locally weighted. However, I have added some available wines from other Old World and New World locations.

GEHRINGER BROTHERS PRIVATE RESERVE DRY RIESLING 2021

BC VQA Okanagan Valley #347492 $15.99

From a pioneer in B.C. Riesling, this is from hand-picked grapes and has an alcohol content of 12.9 per cent. The flinty nose has lemon-lime, green apple and some white flowers, and its dry but racy palate has more lemonlime citrus, white grapefruit, melon and peach flavours with mineral notes and a long finish. This means it will pair well with many foods from white fish to lighter grilled chicken or turkey dishes, a cheese plate, quiche or a cheese tart, or a hearty legume or similar salad.

JACKSON TRIGGS GRAND RESERVE RIESLING 2019

BC VQA Okanagan Valley #182220 $19.99

I do not generally add wines from the huge conglomerates to this column, especially from one that makes its money from cheap blended plonk. But this grand reserve is worth the exception. A larger wine at thirteen per cent alcohol, it was pressed and cold fermented on selected yeasts after an extended skin contact. Deep gold and highly aromatic, it shows lemon-lime, lanolin, wet stone and a bit of honeysuckle on the nose, and on the slightly off-dry palate peach, apricot, pear and more lanolin with some tropical notes and honey on the lingering crisp finish. Again, rich seafood like halibut or tuna will go well with it, as would roast turkey or Indian fare. Other ideas are a spicy chicken stir-fry, sharp cheeses or pork chops.

FOUR SHADOWS CLASSIC RIESLING 2021

BC VQA Naramata Bench, Okanagan Valley $24.00 (approx.)

This wine is exclusively from estate-grown grapes at this small Upper Bench Penticton winery. It won a platinum medal at the 2022 Wine Access Awards. At 13.6 per cent alcohol, it is an aromatic bomb that delivers on the nose and palate. The winemaker told me that the hot year almost overripened the grapes, that hot weather being confirmed on the back label notes as well. However, the result is rich (almost unctuous) and elegant. The winemaker also told me that the 2022 will be more like ten per cent, so this is a unique vintage to enjoy. It has perfumed aromas of tree blossom, white grapefruit, pear, peach, lemon and lime zest with a bit of wet stone minerality. On the palate it is off-dry but well balanced with more lime, peach and tropical fruit (green pineapple and papaya). The honeyed finish is offset by good cutting acidity. Food options are similar as for the Jackson Triggs. Given its richness, I suggest staying away from spicy Asian foods. It is available at Save-On-Foods and other private stores or from the winery online or in person.

HARPER’S TRAIL THADD SPRINGS VINEYARD RIESLING 2021

BC VQA Thompson Valley #584489 $25.00 (approx.)

This is from one of the established Kamloops wineries that has made its reputation on Riesling and Pinot Noir. (The winery is for sale if you want to try your hand at wine farming.) With a production of 579 cases, the grapes are from a section of the vineyard called the Silver Mane Block. The alcohol is modest at 11.1 per cent. It has grapefruit pith, Meyer lemon, key lime, green peach and wet stone aromas, leading to a fruity but mineral-laced palate with lemon curd and apple. The finish is long with more mineral notes and a splash of honey, making this an extremely versatile food wine that will go especially well with Indian or East Asian food where it will handle the heat. Again, it is available at Save-On-Foods, plus Everything Wine and other private stores or from the winery online or in person.

PETER LEHMAN WIGAN RIESLING 2015

Eden Valley, Barossa, South Australia #153421 $33.00 (approx.)

From another large producer, this Australian wine has the interest of maturity added to the mix, as it was deliberately held back to bottle age. It is named for the winemaker. Grapes were harvested early, following a cool and dry growing season. It was the winemaker’s last vintage before retirement and has been hailed as classic: one of the greatest, if not the greatest, Wigan Riesling made. So look for it. The grapes were picked early, as noted above, and fermented cold in stainless steel for two weeks before clarification. Bottling took place immediately, then the wine was cellared at the winery for five years prior to release. It hits the nose with lime with toasty characteristics, alongside honey and a bit of lanolin. At eleven per cent alcohol, the palate is clean and cutting with petroleum, lemon rind, green apple and wet stone, and it has a crisp, dry finish, with a few honeyed notes. It will do well with Vietnamese, Thai or other Oriental cuisine—or, for a different take, a plate of cheeses, or steamed halibut or pink salmon or prawns with drawn butter. It is found in private liquor stores including JAK’s.

WEINGUT TONY JOST BACHARACHER RIESLING TROCKEN 2019

QbA Kabinett feinherb, Mittelrhein, Germany #188362 $40.00 (approx.)

The term feinherb on a label of German Riesling is a recent development. The term is defined neither by the German Wine Law nor by any EU regulation or directive. It was only in 2003 that the German Federal Administrative Court clarified that a wine may be labelled as feinherb. The best way to describe such wines is probably the same as halbtrocken, with sometimes a higher level of sweetness—but not always. Generally they are from very

ripe grapes fermented on wild yeasts that will stop working before full dryness is achieved. This leaves a residual sugar level. This version has twelve per cent alcohol. The nose displays sharp lemon-lime, green apple and green mango, followed by green peach and lemon curd on the palate with hints of tropical fruit and a clean medium-long and balanced off-dry finish. Food pairings similar to those for the Four Shadows will work well. Again, it is found only in private stores including JAK’s and perhaps on some restaurant lists.

MOSELLAND ARS VITIS RIESLING 2021

QbA Mosel, Germany #914762 $19.99

This wine is lean and racy with only 8.8 per cent alcohol and is good value for the money. It has aromas of lime, white grapefruit, a bit of white flowers and some light spice, and has flavours on its light, slightly effervescent palate of peach, apple, apricot and persimmons with a clean, long and offdry finish. Its light profile and hint of sweetness, offset with generous acidity, make it an ideal match for salads and Asian dishes. We had it with a spicy vegetarian curry and it tamed the heat well. Vietnamese dishes including pho, will also work well, as will Chinese fare.

ENDNOTES

1.Hugh Johnson & James Halliday, The Vintner’s Art: How Great Wines Are Made (New York: Simon & Shuster, 1992) at 86.

2.Jancis Robinson, “Great White” (25 July 2012), VINES Magazine, online: <https://vinesmag.wordpress.com/tag/jancis-robinson/>.

3.André Dominé, Wine (H.F. Ullmann, 2011) at 452.

4.“Riesling”, Wikipedia, online: <en.wikipedia.org/ wiki/Riesling#Red_Riesling>.

5.Online: <en.wikipedia.org/wiki/Hieronymus_ Bock>.

6.The current one being Daniela Schmitt: “Daniela Schmitt”, Wikipedia, online: <en.wikipedia.org/wiki /Daniela_Schmitt>.

7.“Not All Riesling is Sweet (But They Sure Make It Confusing)”, Supple Wine, online: <www.supple wine.com/articles/wine/not-all-riesling-is-sweetw62/>.

8.Jancis Robinson, “Riesling – Will It Ever Catch On?” (23 March 2023), online: <www.jancisrobinson.com /articles/riesling-will-it-ever-catch-on>.

9.Robinson, “Great White”, supra note 2.

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BC LAW INSTITUTE

By Tejas Madhur*

Recently, the British Columbia Law Institute (“BCLI”) released two publications that concern the protection of people in vulnerable circumstances, although they approach that objective in very different ways. One publication deals with regulatory reform in the health care occupational sector, and the other is a practice resource for lawyers and notaries that helps practitioners to protect clients from financial and psychological abuse at the hands of those around them.

UNDUE INFLUENCE RECOGNITION AND PREVENTION: A GUIDE FOR LEGAL PRACTITIONERS

Earlier this year, BCLI released a revised and updated version of its wellknown and frequently cited guide for lawyers and notaries on recommended practices in screening for possible undue influence that may taint drafting instructions they receive and could result in documents being substantively invalid. The new version of the guide has a shorter title: Undue Influence Recognition and Prevention: A Guide for Legal Practitioners. The title no longer refers to wills specifically, because the coverage of non-testamentary undue influence has been expanded along with other parts of the guide.

The original guide was developed with an interdisciplinary committee of very knowledgeable volunteers. In revising the guide, BCLI again had the assistance of an interdisciplinary volunteer committee that included two geriatric psychiatrists and a psychologist. The new guide contains additional information on cognitive impairment, dementia and the relationship between these conditions and susceptibility to undue influence.

Good practice in intercultural communications takes on even greater importance when dealing with the sensitive issues that usually surround

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

situations in which undue influence may be present. The new version of the guide includes considerably more content on intercultural communications with Indigenous clients and clients from migrant and minority communities.

Another focus of the new BCLI guide is on safeguards in confidential video communication with clients, including older clients having little or no skill with computers. In updating the guide, BCLI and its volunteer project committee proceeded on the assumption that use of computer-based video communication would be a permanent legacy of the pandemic in legal practice, in the same way as it has turned out to be in other fields. Solicitor-client meetings by means of audiovisual technology, and the introduction of remote witnessing of the execution of wills, powers of attorney and representation agreements, provide new opportunities for undue influence to be exerted outside the practitioner’s field of view. Observing safeguards set out in the new guide and in the other sources referenced in it will reduce the scope for influencers to take advantage of those opportunities.

The list of “red flags” of potential undue influence that many practitioners have found extremely useful now includes additional references to nonverbal communication cues that may take on more significance in virtual client meetings, with appropriate cautions against drawing inferences from nonverbal behaviour alone.

Of course, the chapter on the law of undue influence has been updated to reflect recent case law on undue influence and legislative developments since the Wills, Estates and Succession Act was enacted. The popular reference aid checklist accompanying the guide has also been revised and re-issued.

The original guide quickly acquired currency with the wills and estate planning bar as a practice resource. The Law Society wills and estates practice checklists and the Lawyers Indemnity Fund’s website include links to it. We anticipate the new version will be equally well received and serve practitioners and their clients in the years ahead.

STRENGTHENING BC’S HEALTH CARE BACKBONE: OVERSIGHT OF THE WORK OF HEALTH CARE ASSISTANTS

In late 2022, the Canadian Centre for Elder Law (“CCEL”), a division of BCLI, published a study paper entitled Strengthening BC’s Health Care Backbone: Oversight of the Work of Health Care Assistants

Health care assistants, also called care aids, personal support workers and community health workers, provide the bulk of day-to-day health and personal care to older people, adults living with disabilities, and those with complex health needs in British Columbia. While they perform nursing

tasks increasingly, their work is largely unregulated. There is no scope of practice defined for them. They are not licensed and they have no continuing educational requirements. The majority are immigrant women of colour. Many, and possibly a majority, of these workers are in precarious casual employment and must work at multiple jobs. Both the workers and the recipients of their care are vulnerable for different reasons.

British Columbia originally led the country in establishing a body in 2010 to oversee aspects of the work of health care assistants, the BC Care Aide & Community Health Worker Registry (“BC Registry”). It was established by contract and still has no legislative basis. Ontario, Alberta and Nova Scotia have moved ahead in the meantime with legislation, now at various stages, to improve oversight of the work of health care assistants.

Researchers, advocacy organizations and others have criticized the limited mandate of the BC Registry and the limited registration requirement, which applies only to health care assistants in publicly funded positions. They have pointed to gaps in the regulatory framework and its lack of transparency. For example, a member of the public cannot check the BC Registry to determine if someone is registered or not.

Our study paper reviewed the existing regulatory framework in British Columbia, summarized the criticism of the framework and examined approaches to regulating this category of health care worker in other jurisdictions. It identified seven options for regulatory reform that would address critical gaps in the present system and enhance the protection of both care recipients and health care assistants.

Coincidentally with the issuance of the study paper, the Health Professions and Occupations Act (“HPOA”) was introduced in the British Columbia legislature as Bill 36 and subsequently passed.1 The HPOA creates a structure that could be used to regulate health care assistants as a “health occupation” under the statute. At the time of writing, the bulk of the HPOA is not in force, and it remains to be seen whether regulations under it will address the matters covered in Strengthening BC’s Health Care Backbone. We hope that this study paper will influence the course of reform under the new provincial framework.

Undue Influence Recognition and Prevention: A Guide for Legal Practitioners and Strengthening BC’s Health Care Backbone: Oversight of the Work of Health Care Assistants can each be downloaded from BCLI’s website at <www.bcli.org>. ENDNOTE

1. SBC 2022, c 43.

LAP NOTES

By Michael Kahn*

THE KEY TO A HAPPIER LIFE

Last week, I did something scientifically proven to increase happiness: I visited my local insurance agent’s office. More about this later. First, I want to introduce you to Robert Waldinger, M.D. Waldinger is the fourth director of the Harvard Study of Adult Development, the world’s longest scientific study of happiness and one of the most comprehensive longitudinal studies ever conducted. The study began in 1938 and a few dozen of the original participants are still living.

The main finding of the Harvard study is that the people who are happiest, are healthiest and live longest have positive relationships and warm connections. They are less likely to develop illnesses such as heart disease, type two diabetes or arthritis, and have improved overall well-being. Waldinger says that relationships are emotion regulators and one reason is that “friends diminish our perception of hardship”.

Let’s test their finding.

Take a moment to recall a time you reached out to someone when you were sad, anxious, angry or stressed. Assuming that the person was a good listener (a big assumption today with all that distracts us—an article for another time!), how did you feel after the conversation? Were you calmer and more relaxed even if the friend said nothing? You possibly even solved a dilemma. Imagine the impact if you reach out to others regularly. Relatedly, a Gallup survey documented the value of having a supportive person at work. The survey asked 15 million workers, “Do you have a best friend at work?” Only three out of ten did, and they were more engaged, more productive and less likely to leave their job. Waldinger and his co-director, Marc

* Michael Kahn, M.Ed., J.D., is a lawyer counsellor with the Lawyers Assistance Program of British Columbia.

Schulz, Ph.D., have shared the study’s findings in their new book, The Good Life: Lessons from the Longest Study on Happiness. Waldinger also discusses the study in his TED Talk, What Makes a Good Life?1

Why are relationships so important? Waldinger says that it is due to anciently evolved patterns. Evolution is about survival, and we are better at surviving dangers in groups. In ancient societies, being exiled was considered an extreme punishment because you were literally less likely to survive. In fact, our sleep can be lighter and more easily disrupted when we are alone because increased vigilance is necessary to be safe.

In light of the study, Waldinger says that we need to be more intentional about our “social fitness” by asking the following questions:

• Safety and security: Who would you call if you woke up scared in the middle of the night? Who would you turn to in a moment of crisis?

• Learning and growth: Who encourages you to try new things, to take chances, to pursue your life’s goals?

• Emotional closeness and confiding: Who knows everything (or most things) about you? Who can you call on when you’re feeling low and be honest with about how you’re feeling?

• Identity affirmation and shared experience: Is there someone in your life who has shared many experiences with you and who helps you strengthen your sense of who you are?

• Romantic intimacy: Do you feel satisfied with the amount of romantic intimacy in your life?

• Help (both informational and practical): Who do you turn to if you need some expertise or help solving a practical problem?

• Fun and relaxation: Who makes you laugh? Who do you call to see a movie or go on a road trip with and who makes you feel connected and at ease?

Not all of the above needs will be equally important to you. Also, each of us determines the number of people we want in our lives. Introverts generally need fewer people in their support system as compared to extroverts. Schulz and Waldinger have set out a useful exercise to help us assess our social support. 2 Of course, the Lawyers Assistance Program of British Columbia (“LAPBC”) can be a helpful resource if you have relationship challenges and concerns.

So, what does the visit with my insurance agent have to do with all of this? Following the business portion of my visit, we talked about where I

was from, where he was raised and … how we both loved Brussels sprouts (since I happened to be carrying a bag of them). The conversation lasted only five to ten minutes, but I walked out of his office happier even though my bank account was considerably sadder. Waldinger says that these smaller positive connections or “micro-interactions” can make us happier too. For me, positive micro-interactions can occur with baristas, fellow community gardeners, the 94-year-old volunteer at Canadian Blood Services and, of course, insurance agents. Usually, the result is a positive jolt to my mood. During the pandemic lockdown, these micro-interactions were lost and for many of us the negative impact was significant.

The impact of positive relationships is found elsewhere in the world as well. Denmark is consistently ranked as one of the happiest countries in the world. What makes the Danes so happy? Meik Wiking says one major factor is something called hygge (roughly pronounced “hoo-gah”). Hygge literally means “well-being”. Wiking is the CEO of the Happiness Research Institute, an independent think-tank that explores the causes and effects of happiness. He defines hygge as:

[A]n atmosphere and experience, rather than about things. It is about being with people we love. A feeling of home. A feeling that we are safe, that we are shielded from the world and allow ourselves to let our guard down. You may be having an endless conversation about the small or big things in life—or just be comfortable in each other’s silent company—or simply be by yourself enjoying a cup of tea.3

Wiking says that after all of his years of happiness research he is certain about one thing: our social relationships are the best predictor of our happiness. “It is the clearest and most reoccurring pattern I see when I look at the evidence on why some people are happier than others”. Wiking says one explanation is the hormone oxytocin, the release of which leads to a greater sense of well-being. Oxytocin is called the “cuddle hormone” because it is released through touch. Interestingly, music also increases oxytocin levels, especially when people sing in groups, which increases social connection.

Even when our loved ones and friends are not around, we can still feel connected to them. The Greater Good Science Center (“GGSC”) is a resource for evidence-based practices, including exercises that can increase our sense of connectedness. One practice involves looking around your home or office and identifying things that remind you of loved ones, such as photos, objects or other memorabilia. As I am typing this article, I notice a photo of my dogs and my mom’s sculpture on my desk, and I immediately feel comforted. Part of the exercise is also to pay attention day to day for additional things that evoke a feeling of connection. Consider moving them

to rooms where you spend more of your time, including your office. See the GGSC’s website for other exercises to increase connection.4

It is important to note that positive relationships do not just happen. They need to be attended to and maintained. A lawyer I know enjoys writing and snail-mailing letters to friends, but connecting can also be a quick text, direct message or phone call. This discussion about relationships led me to think about John, my former boss and longtime friend, and how I need to reach out to him. In the last 24 hours, have you thought about or considered reaching out to a friend? The next time you have a similar thought, do it! By the way, positive relationships are not without conflicts, so don’t give up on one simply because you are going through a rough patch. All relationships need the investment of time, energy and open communication. Of course, some relationships are toxic and strong boundaries need to be set.

Waldinger says that study participants in their 80s regretted spending too much time at work and not enough time with loved ones. Many of us lawyers respond to increased workplace demands by putting in longer hours, which inevitably takes a toll on us and our relationships. Considering the study’s findings and the older participants’ lessons, it would be wise not to substitute achievement at work for loving and supportive relationships.

Life throws us many unexpected curveballs. As John Lennon sings in “Beautiful Boy”, “Life is what happens to you while you’re busy making other plans”. The good news is that our relationships can help us cope with “life” and improve our happiness overall. So, what is one thing you can commit to right now to strengthen a current relationship or create a new warm connection?

ENDNOTES

1. Online: <www.ted.com/talks/robert_waldinger_ what_makes_a_good_life_lessons_from_the_longest _study_on_happiness/comments>.

2. Online: <www.cnbc.com/2023/02/10/85-yearharvard-study-found-the-secret-to-a-long-happyand-successful-life.html>.

3. Meik Wiking, The Little Book of Hygge: The Danish Way to Live Well (London: Penguin, 2016).

4. Online: <ggia.berkeley.edu/#filters=connection>.

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

A VIEW FROM THE CENTRE

By Elsa Sardinha*

We live in an era of increasing transborder and transnational transactions, which may involve multiple parties and generate complex contractual and commercial disputes in need of resolution. Against this backdrop, Vancouver remains a vibrant and attractive forum to facilitate the resolution of such disagreements, not least because of the rich breadth of available intellectual resources and the accessibility of the city, in particular with respect to disputes arising in the Asia-Pacific region. Lying at the vanguard of transnational and domestic alternative dispute resolution, the Vancouver International Arbitration Centre (“VanIAC”) offers efficient dispute resolution mechanisms, tailor-made to handle disputes of any size or complexity.

ICCA-VanIAC ENERGY CONFERENCE JUNE 2, 2023

On June 2, 2023, VanIAC and the International Council on Commercial Arbitration (“ICCA”) will host a conference on “Energy Infrastructure Disputes and Arbitration: Today and Tomorrow” at the Vancouver Convention Centre (information and registration are available on VanIAC’s website: <vaniac.org>).

The event is co-chaired by Tina Cicchetti (independent arbitrator), Craig Chiasson (Borden Ladner Gervais LLP) and Joe McArthur, FCIArb (Blake, Cassels & Graydon LLP). It promises to be an informative event, with excellent networking opportunities. Arbitration practitioners, industry participants, arbitrators and academics will converge on Vancouver from across Canada and the globe, joined by Vancouver’s local talent. Distinguished speakers will include Lucy Reed, Laura Cundari, Doug Jones AO, Dr. Ezra Jampole, Miguel Lópex Forastier, Chantal-Aimée Doerries, K.C., Raëd

* Elsa Sardinha is the new Secretary-General and Managing Director of the Vancouver International Arbitration Centre.

Fathallah, Constantine Partasides, K.C., Michelle MacPhee, Wesley Pang, Maria Chedid, RoseAnne Archibald, Alison FitzGerald, Jim Morrison, Vasuda Sinha, Abby Cohen Smutny, Ellis Ross, Jung Lee, Kate Brown de Vejar, Tina Cicchetti and Joe McArthur.

The conference agenda includes discussions relating to how clean energy and climate change are transforming construction disputes, predictions on new substantive areas of dispute and procedural solutions in international energy arbitration, and the scope there may be for third-party interests to be taken into consideration in energy infrastructure disputes between commercial parties. There will also be a debate about fuelling the future versus saving the planet with respect to the extraction of critical minerals required to power “clean” technologies from electrical vehicles to wind turbines and solar panels.

ABOUT VanIAC

VanIAC has been a leading arbitral institution for nearly 40 years. In July 2022, VanIAC amended its International Commercial Arbitration Rules to reflect the state-of-the-art for efficient and effective arbitral practice. VanIAC’s Domestic Arbitration Rules were revised in 2020, which coincided with British Columbia’s newly adopted Arbitration Act (domestic), its International Commercial Arbitration Act having been updated and adopted in 2018.

Vancouver provides a welcoming environment for international arbitration on the west coast of North America. With over 300 international and 90 U.S. flight arrivals per week, including non-stop access to over 120 destinations, and a mere 20-minute train or taxi ride to downtown from YVR airport, Vancouver has global appeal. VanIAC changed its name (formerly, the British Columbia International Commercial Arbitration Centre (“BCICAC”)) in 2020. Vancouver’s thriving business and trade, along with its geographic and multi-cultural advantages, make it an ideal place for arbitration hearings. As readers know, Vancouver’s downtown core is compact and walkable, with stunning ocean and mountain views.

VanIAC provides efficient, flexible and impartial administration of arbitration and other ADR proceedings, regardless of location, and under any system of law. VanIAC has access to experienced arbitrators, mediators and experts from many jurisdictions, with a wide range of expertise. The international nature of VanIAC’s services is reflected in the impressive list of arbitrators publicly available on its website. VanIAC’s dispute resolution services are available to all contracting parties, without any membership requirements.

VanIAC’s case administration fees are modest and its administrative touch light to provide efficient and cost-effective services. Expedited procedures are available at flat fees for disputes of lower value. VanIAC also provides standalone arbitrator appointment services for a flat fee of $750.

The advantages of using VanIAC in a domestic or international dispute are manifold. Its procedures are flexible and remain firmly within the control of the parties. The litigation process can be lengthy and costly from a business perspective, pending the final resolution of a dispute that could take years. VanIAC’s arbitral processes are capable of providing a viable and attractive alternative to traditional litigation, including efficient and effective dispute resolution. The process under VanIAC’s rules supports retaining confidentiality over arbitral proceedings, a commonly sought benefit for many participants.

As mentioned above, VanIAC has a comprehensive roster of commercial arbitrators and mediators whose backgrounds range from arbitrationspecific expertise to former judges and to other professionals with specific subject-matter experience, including accountants, appraisers, architects and engineers.

These factors, and many others that can be found in VanIAC’s domestic and international arbitration rules, facilitate attaining finality in the resolution of parties’ disputes.

VanIAC also administers domain name disputes through its Canadian International Internet Dispute Resolution Centre.

ABOUT THE AUTHOR

After 14 years developing my Canadian and international arbitration expertise in The Hague, London, Singapore, Washington, D.C., Paris, Vancouver, Toronto and Montreal, I am delighted to take the helm at VanIAC, in my hometown of Vancouver, as Secretary-General and Managing Director. I was appointed to the role on February 1, 2023 by VanIAC’s board of directors, which is chaired by Joe McArthur and also includes Ludmila Herbst, K.C., Sarah McEachern, Jayde Wood, David Gruber, FCIArb, Peter Senkpiel, Alexandra Mitretodis, Professor Bradford Morse, Joanne Luu and Ken Duke. Laura Cundari, FCIArb, Suzanne Anton, K.C., and Adam Foley also served on the board until April 11, 2023.

As legal counsel at other leading arbitral institutions in London and The Hague, together with experience as both tribunal secretary to preeminent international arbitrators and as an independent arbitrator myself, I bring to VanIAC extensive dispute resolution experience and knowledge of arbitration procedure and practice. I have provided in-depth administrative and

substantive assistance to tribunals and disputing parties in some of the world’s most complex commercial and investment disputes, concerning a range of legal systems and industries. I am familiar with the arbitral process under all the major arbitration rules and institutions. I have directly assisted in the appointment of arbitrators and challenges to their independence and impartiality.

The approach to arbitration I bring to VanIAC is one that reflects realworld, industry-specific sensibilities, and an insider’s view of efficient and cost-effective arbitral process and decision-making. A properly managed arbitration—by arbitrators and arbitral institutions with strong substantive and managerial expertise, who treat both sides fairly while remaining decisive—is faster and less expensive than litigation. Arbitration provides confidentiality, a bespoke and largely party-driven timeline, and a binding and enforceable final award. I also bring to VanIAC a wide network of key contacts in law, government and business, which will be instrumental in raising awareness of VanIAC and confidence in the quality of its appointed arbitrators and case administration services.

I began my legal career as a litigation associate at Borden Ladner Gervais LLP in Vancouver after clerking at the Court of Appeal for Ontario in Toronto. I am delighted to be able to contribute to the success of both Vancouver’s and Canada’s arbitration communities in this exciting new role.

THE PROMOTION OF DOMESTIC AND INTERNATIONAL COMMERCIAL ARBITRATION IN VANCOUVER

We are in a busy period for VanIAC’s educational outreach and marketing efforts, promoting domestic and international commercial arbitration:

•On January 26, I attended the “Economic Outlook Forum 2023”, hosted by the Greater Vancouver Board of Trade and Scotiabank.

•On March 1, I moderated a webinar discussion on “Efficient International Commercial Arbitration”, featuring VanIAC board directors Ludmila Herbst and Alexandra Mitretodis, and California arbitrators Dan Welch and Thomas Hanrahan.

•On March 13–17, as VanIAC’s representative, I participated in the California Arbitration Week in Los Angeles.

•On April 26, I gave a presentation at a full-day Continuing Legal Education Society of British Columbia webinar focused on effective Indigenous business development. Topics included an introduction to domestic commercial arbitration in British Columbia as an alternative to courts, VanIAC’s model arbitration clause for the

dispute resolution provision of any commercial contract (tailored to include culturally relevant traditions such as opening/closing ceremonies, hearings on Indigenous lands or whatever elements are important to a particular Indigenous party), and careers in arbitration for Indigenous lawyers in British Columbia, across Canada and abroad.

•Also on April 26, I participated in the CBA Intellectual Property Conference in Ottawa.

•On May 5, I was interviewed by Young ArbitralWomen Practitioners for their series “Meet the Arbitral Institution”.

Please visit <www.vaniac.org> and our LinkedIn page for more information about upcoming events. In addition to the VanIAC/ICCA Energy Conference on June 2, 2023 in Vancouver, join VanIAC at the Aboriginal Law Forum Retreat on June 23–25, 2023 at the Tigh-Na-Mara Resort in Parksville and the Intellectual Property Institute of Canada Conference on October 11–13, 2023 in Winnipeg, Manitoba.

We are most honoured to announce that Norman Chow has joined our firm as associate counsel. Norman brings his extensive solicitor’s practice to Redpoint, where he will continue to provide his unwavering commitment, learned advice and exceptional talent to his business, developer, secured lending and estate clients. Welcome, Norman!

All of us at Redpoint Law LLP are excited to announce that we are opening a full service solicitors’ office in Kelowna, B.C., in the summer of 2023. Our partner Scott McInnes will be the “boots on the ground” for Redpoint and will be providing the firm’s solicitors’ practice right from beautiful downtown Kelowna. We are proud to bring our trusted legal advice to the local residents and businesses of the Okanagan.

#660-355 Burrard Street | Vancouver, B.C. V6C 2G8

#208-478 Bernard Avenue | Kelowna, B.C. V1Y 6N7

ANNOUNCING THE 2023 ADVOCATE SHORT FICTION COMPETITION

ELIGIBLE CONTRIBUTORS

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

ELIGIBLE FICTION

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

DEADLINE FOR SUBMISSIONS

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

FORMAT FOR SUBMISSIONS

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

ADDRESS FOR SUBMISSIONS

Advocate Short Fiction Competition

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

The Advocate

#1918 – 1030 West Georgia Street

Vancouver, B.C. V6E 2Y3

JUDGES

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

PRIZES

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

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

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

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

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

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for:

(a) possible selection as winning entries;

(b) possible publication in the Advocate; and

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

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

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

PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Heidi Wudrick*

A NEW BEGINNING FOR AFGHAN JUDGES FORCED TO FLEE THE TALIBAN

Since the Taliban’s return to power in Afghanistan in August 2021, women judges throughout the country have lost their jobs, had their lives threatened and been forced to evacuate or go into hiding. Last March, the International Association of Women Judges published an open letter to the international community seeking assistance in evacuating and resettling women judges who remained in Afghanistan.

At the Peter A. Allard School of Law, three judges from Afghanistan have recently joined us through our new Afghan Women Judges Program. Judge Bibi Wahida Rahimi accepted a two-year position as a research associate. Judges Freshta Masomi and Zamila Sangar accepted two-year appointments as visiting scholars with the Centre for Asian Legal Studies.

Allard Law students, faculty and the broader legal community will benefit from their insights into contemporary Afghan law and society and their first-hand experience as judges, both before and after the Taliban returned to power.

HIGHLIGHTING THE BEAUTY OF AFGHAN SOCIETY

Forced to flee Afghanistan following the Taliban’s takeover, Judge Rahimi previously served as a judge at the Primary Court in Panjshir, Afghanistan, where she heard cases on violence against women from 2017 until the regime change in 2021.

At Allard Law, Judge Rahimi’s research will provide important insights into aspects of Afghanistan’s judicial system, focusing on topics including women and the law in Afghanistan and the experience of women judges within the system.

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

In a project she’s titled Turning Back, Judge Rahimi will explore the lives and career paths of several Afghan women judges. She describes this work as “very close to her heart”. In another project, Judge Rahimi will examine Afghanistan’s laws on violence against women and how those laws have been applied in practice. In a third project, she plans to explore the relationship between literacy, women and success.

“I want to contribute my knowledge and experience for my generation, and for every girl who dreams independently for herself,” she explains. “I also want to try to make a connection through my writing with those who feel their dreams and future have reached an endpoint. I feel a great responsibility on my shoulders to continue this academic path and share my vision.”

The thread tying each of these projects together is Judge Rahimi’s desire to highlight the beauty and positive elements of Afghan society, which she describes as being overshadowed by the current regime. “For me, research is a way of thinking independently and telling untold stories,” she adds.

Since arriving in Canada in April 2022, Judge Rahimi has been active in sharing her knowledge about the future of Afghanistan and the experiences of Afghan women judges who were exiled from the bench. Recently, she presented on the situation of Afghan women and girls in a private briefing with the UN Special Rapporteur on Afghanistan. She has also shared her expertise with global media outlets—including Al Jazeera, BBC and The New York Times—to create greater awareness of the major threats to women judges and the judicial system in Afghanistan.

This April, Judge Rahimi will be speaking at the National Retreat for Women in Victoria, B.C., co-organized by the Honourable Janet Austin, Lieutenant Governor of British Columbia, together with other inspiring women leaders.

ESTABLISHING ALLARD LAW’S NEW AFGHAN WOMEN JUDGES PROGRAM

Allard Law’s new Afghan Women Judges Program, established in November 2022, was inspired by a call for law schools across the country to help support women judges from Afghanistan who had been forced out of their jobs following the Taliban’s return to power. That request was sent by Toronto Metropolitan University Professor Patricia Hania, on behalf of the International Association of Women Judges, to the Canadian Council of Law Deans.

Professor Graham Reynolds, Allard Law’s Associate Dean, Research and International, says it was this call for support that spurred him and his colleagues to action. “We wanted to do something to help Afghanistan’s women judges who lost their careers and had their lives put at risk,” he says. “With

the help of a dedicated team of individuals both within and outside UBC, and in collaboration with UBC’s Centre for Feminist Legal Studies and Centre for Asian Legal Studies, we were able to create the research associate position. It was truly a team effort.”

Associate Dean Reynolds notes that Professor Patricia Hania and the Honourable Risa Levine, former judge of the B.C. Court of Appeal and a member of the Canadian chapter of the International Association of Women Judges, played a particularly critical role in the creation of both the research associate position and the Afghan Women Judges Program. “Without their efforts, these initiatives would not have been launched,” he adds.

The Honourable Risa Levine says that seeing the results of their efforts— and getting to meet the three judges in person—has been a particularly special experience. “Freshta, Wahida and Zamila radiate kindness and serene optimism,” she says. “I am awed by their commitment to their work on behalf of women in Afghanistan and humbled by their strength and resilience in the face of the losses they experienced in leaving Afghanistan and the challenges of coming to a new country. They are remarkable women, who have so much to teach us comfortable Canadians.”

Allard Law’s Afghan Women Judges Program includes English-language training provided by UBC’s English Language Institute and an ongoing seminar series that provides both an introduction to the Canadian legal system and opportunities for the judges to meet with Canadian judges, lawyers and professors.

Associate Dean Reynolds hopes that, in time, the program will inspire other law schools across Canada to find ways to support and collaborate with Afghan judges who have recently arrived in Canada. “The Allard Law community is proud to welcome Judges Rahimi, Masomi and Sangar, and looks forward to working with and learning from them,” he says.

Thank you to all who have generously donated their time and financial support to the Allard School of Law’s Afghan Women Judges Program.

Funding for the research associate position and the Afghan Women Judges Program was made possible thanks to the generous philanthropic support from members of the broader legal community as well as financial support from UBC’s Scholars at Risk Fund. We are also grateful to the UBC English Language Institute for providing tuition waivers for program participants.

THE PAISLEY IRREGULARS ESSAY COMPETITION IN NEGLIGENCE LAW

CALL FOR SUBMISSIONS

SUBMISSION DEADLINE: JUNE 26, 2023

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

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

The topic for this year is:

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

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

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

<www.PaisleyIrregulars.ca>

UVIC LAW FACULTY NEWS

By Ivan Watson*

IMPACT AND ADVOCACY: 45+ YEARS OF THE LAW CENTRE

When the UVic Faculty of Law was established in 1975, a driving vision of the new law school was an emphasis on public interest law and providing students experiential learning opportunities to integrate legal theory, legal skills and community service. Two years later, the Law Centre was born as part of that vision and quickly evolved into a robust student clinical law program serving the needs of vulnerable clients in the community, as well as a national model of excellence in hands-on legal education.

From the Beginning, “Purposeful

Work”

Has Been a Hallmark Law Centre director Steve Perks has been working at the Law Centre since 1996, for many years as assistant director, until becoming director in 2019, taking the reins from longtime director Glenn Gallins. The positive working culture since the beginning has fostered an environment where there are many long-term staff members with several years of service committed to the centre’s mission, almost all of whom are UVic alumni.

“It’s purposeful work, and rewarding,” says Perks. “People who come to work here often stay here because they have a real affinity for the type of work we do and the clients that we have. The Law Centre offers a combination of practice and teaching as well as services to disadvantaged and marginalized clientele, which reflects our team’s strong desire to want to help people. We have experienced lawyers who mentor our students during their term here. That all makes the clinic rather unique in many ways.”

Each year of its existence, the Law Centre has served between 700 and 1,200 low-income and vulnerable clients, helping tens of thousands of people since inception. It is an extraordinary record of achievement that has

* Ivan Watson is the communications officer of UVic Law.

improved lives locally and has had a systemic impact on promoting social justice in the South Island region and beyond.

For the 14 students each term, totalling 42 every year, who work at the centre, they are nearly all dedicated to the values of public interest law and community service.

“My experience is that it’s been a very self-motivated program. You’re rarely, maybe even never worried about a student pulling their weight here,” says Perks. “The concern here is dampening down working too hard, and maintaining a balance because the students come ready to roll up their sleeves and explore their passion for public interest law and advocacy work.”

The Clinic Has Evolved as the Law and Community Needs Have Changed

“In the early days, we were working on about sixty per cent criminal law cases and that percentage has changed over the years with a greater variety of cases in different areas,” explains Perks. “The history of it is that the clinic has evolved and expanded and developed new expertise. It’s partly in response to demand, and partly in response to where services have fallen away. Another part is how society has changed, and the needs have changed. We have changed accordingly.”

Today’s Law Centre provides advice, assistance and representation to clients on a wide range of legal issues including criminal matters, family law, human rights complaints and civil disputes, as well as hearings related to employment insurance, welfare, tenancy and landlord disputes and more.

Assisted and mentored by a duty lawyer, students at the centre work on files from start to finish, meeting a client on intake and working with them each step of the way to help resolve their legal issues.

“We serve clients who wouldn’t otherwise be able to afford a lawyer, and one of the most important things that students learn is the tremendous value of the legal services that they are learning to provide,” explains Perks. “They learn that there is a lot of discretion at different stages of the system, so it’s very valuable to have an advocate, and that they can make a tremendous difference in the outcome for the clients.”

Students Acquire Hands-On Legal Skills, Moving from Theory to Practice

Grant Morley is a third-year J.D. student currently completing his clinical term at the Law Centre. He values the opportunity to put into practice the legal knowledge he is learning through his degree, especially in a way that is expanding both his people skills as well as his technical legal skills and his understanding of different areas of the law.

“I’ve been able to apply the substantive class work that I’ve been doing in law school, and I’ve been able to apply what I’ve learned in a practical setting,” he says. “Through my term here, I’ve been able to work on at least one of every type of file and quite a few of multiple files, from meeting with clients through initial intake, understanding what brought them to the clinic and working to see if we can find a solution to their problems. To me, those have been the most rewarding aspects—direct engagement with clients and working on different types of files from different areas of the law.”

From day one, Morley has felt supported by a team of experienced, senior lawyers who provide support, guidance and mentorship, as well as by his team of peers who support each other to succeed during what can be a steep learning curve when they first arrive to work at the clinic.

“I expected to apply the law and to work within the law with my clinical term, and that has definitely been my experience here, but I know that I’ve gained a lot more than that,” he says. “I’ve had the benefit of learning from the perspectives of my colleagues, to grow closer to one another in a collegial setting and to assist each other with problem-solving and learning other aspects of the law. I think that’s one of the top benefits of UVic Law in general, being a bit more skills-based: I’ve learned a lot of very good skills in a collaborative way that I will carry forward into my future career.”

From the Classroom to the Courtroom: Preparing Students for Success in Trials, Tribunals and Hearings

After 23 years as a clinical instructor and supervising lawyer at the Law Centre, Tybring Hemphill still retains a youthful passion for helping law students navigate the challenges—and nerves—of their first courtroom appearance.

“Working with people who are just beginning their careers, it is infectious, and that enables me personally to maintain my enthusiasm,” he says of his role, which includes a strong mentorship component for young lawyers who are often making their first anxious foray into the dynamic world of hearings, tribunals and courtroom settings. “One of my biggest hopes for the students is that they will gain a sense of professionalism. I think that’s critically important, and a big part of that is understanding and accepting that people are relying on your advice, and you are responsible for the advice you give. You’ve got to own it because real people’s lives are affected.”

Hemphill helps students overcome understandable apprehension before first setting foot in court on behalf of their clients.

“It starts with a conversation, and often I’ll say, ‘Run it by me what you’re going to say. Pretend I’m the judge—convince me,’” he says. I work with

them to get over that hump of being uncomfortable and helping them get over a fear that things like procedural matters will be too complex. Most of them figure it out quite quickly with that support and do a great job.”

After the experience, Hemphill debriefs with students, offering positive feedback and constructive criticism.

“My practice as soon as we get back from any hearing is to sit down with them and review what happened,” he explains. “I make sure they get some immediate and useful feedback because that’s the way to crystalize the learning afterwards; otherwise, it is incredible how quickly you can forget the fine details of what occurred.”

After more than two decades at the Law Centre, Hemphill is proud of the team’s collective legacy in preparing law students for real-world success. “Anytime I walk into a courtroom today, there’s a pretty good chance I’m going to see a former Law Centre student,” he says. “They’re everywhere, and they’re making a huge impact.”

A Network of Successful Alumni and a Community of Mentors

For Don McKay, who became assistant director of the Law Centre in 2022, his return to the clinic represents the culmination of a legal career that began at UVic Law and as a Law Centre student himself more than 20 years ago. He is one of many Law Centre alumni in the community who nurtured their passion and sharpened their skills in public interest law during their terms at the clinic.

“If you look at our alumni, just about every judge and every lawyer in Victoria on the criminal law side of things has come through the Law Centre,” he says. “I’ve found throughout my career that our alumni are always happy to talk about the Law Centre and to help our students, because every one of them has had a good experience.”

Often, the student’s experience at the clinic helped them to shape their future direction in the early stages of their career.

“Every term, students come through here, and they don’t really want to leave, because they’ve gotten a taste of what they signed up to law school for, and they’re taking their theoretical knowledge and practising law,” says McKay. “They learn their way around a courtroom or a hearing, how to advocate and to draft claims and applications. They are seeing the benefits of everything they’ve learned being able to be applied, and that helps students who may have come here not really sure about their next steps to solidify their career plans. Our alumni are attractive candidates for many different legal roles because of the practical experience they gain here.”

McKay recalls how the wide network of Law Centre alumni helped him when he was a young lawyer at the beginning of his career.

“As it turned out, I articled in Toronto with a firm that did both criminal and union-side labour law, and after graduating, I got a position with a startup criminal defence firm in Toronto,” he says. “To my surprise and delight, their articling student was also a Law Centre graduate, as was one of the senior lawyers who came on a year after me. That was two out of five lawyers in the office who were Law Centre alumni. I tell our students that wherever you go, you are likely to encounter a Law Centre connection.”

A Holistic, Interdisciplinary and Person-Centred Approach

UVic alumna Susan Noakes is the Law Centre’s staff social worker, promoting a holistic and compassionate approach in her work with clients and students that integrates both social work and legal services.

“The social work piece is important here because when folks come through our doors, it is not necessarily just a legal issue they are bringing,” says Noakes. “For me, a key takeaway for our law students is to learn to look at the whole person and not just the legal issue and to recognize that you can’t necessarily do it all, that there are other professions like counsellors and social workers who can also assist your client to get back on their feet.”

Noakes’s first experience with the Law Centre was through her social work practicum in the summer of 1990. She went on to work at the Law Centre throughout the decade in a variety of roles, including as a board member when it was governed under an association model, before returning to the clinic in her current role 15 years ago.

“Lawyers and social workers both have a goal of justice and a goal of doing right for the client and advocating for the client. Sometimes how we get there can be different, but the major thing is trying to work together,” she says, citing the centre’s interdisciplinary approach in helping law students understand law and society and their ability to navigate complex and sometimes oppressive systems. “I see myself as an educator for our law students, in terms of learning about case management, work-life balance, and providing general support, because for many of our students it can be the first time they are assisting folks experiencing poverty and suffering from very challenging life situations.”

Noakes works to support both students and clients to succeed by taking a compassionate, person-centred approach.

“My role involves working in many areas, including helping folks with disability applications, welfare matters and human rights complaints and tenancy disputes,” she says. “I also provide quite a lot of emotional support for clients and I teach our students to see past the legal matter, to humanize the client and to understand the challenges they are facing. When you look at the whole situation, a tenancy problem is not just a tenancy problem: it

involves a person who may be struggling with a number of life factors, and we are better able to help them when we understand that context and their individual background.”

A Sense of Belonging, a Drive to Create Lasting Change

For Brittany Goud, supervising lawyer and family law advocate at the Law Centre, it was her student experience at the clinic that helped her understand that her lived experience could support her in becoming a better lawyer and human rights advocate.

“Prior to coming here and having the hands-on experience with clients, I had come from circumstances of poverty myself, and I found that the law school experience, separated from practice in the real world, was a very discombobulating experience–I didn’t really feel like I ever fit in or belonged,” she says. “When I came to the Law Centre, I had to prepare submissions on a human rights file and I had, because of my lived experience, the right language and understanding, and that’s when that formal, lofty part of the law hit the ground and became real for me. I remember feeling that I wanted to be a part of this clinic—I wanted to make sure that rights count for something, and it was an overwhelmingly positive and affirming experience for me at the clinic.”

Working with the current generation of Law Centre students, Goud believes it is important to ensure they feel welcomed, validated and supported to achieve their potential.

“I was really young when I came to law school, 22 years old, and I had a difficult time then seeing myself reflected in legal education,” she says. “A massive aspect of my job now is to ease the experience of students who don’t have a ton of privilege when they come here, and one of my favourite things is helping students who may have come from more marginalized backgrounds to rally against the imposter syndrome. I need them to know that they belong, that they are needed and that their perspectives and stories are needed. I try to help them find their voice and footing because I firmly believe that the law needs the perspective of folks that the law is impacting.”

After more than 45 years of service, the Law Centre continues to lead by example, providing exceptional experiential learning opportunities for UVic Law students, helping vulnerable clients resolve their legal issues and creating systemic, lasting and positive change in our society and the Canadian legal landscape.

TRU LAW FACULTY NEWS

By Ryan Gauthier*

Law schools have rhythms. Summer is generally a quiet time, with a relaxed pace. Fall semester is high-energy, focused on the return to the classroom as everyone gets re-acclimated to lectures, exams, student clubs and so forth. Winter semester, meanwhile, is a season of particular engagement with research and events that provide practical learning opportunities. Faculty, students and staff have established their teaching rhythms, and survived the holiday season. And legal scholars and practitioners seem eager to come together to discuss research and practical experience. This is certainly the case at TRU Law.

RESEARCH SERIES SPEAKERS

TRU’s Research Series, established and overseen by Assistant Professor Blair Major, invites speakers, both from within and outside of TRU Law, to speak to the law school community.

The 2023 season started off with Supreme Court of Canada Justice Russell Brown. Justice Brown delivered a talk titled “Towards a Canadian Doctrine of Separation of Powers”.

Sam Beswick, an assistant professor at the Peter A. Allard School of Law, gave a presentation titled “The New Temporal Equitable Remedies”. The presentation outlined how common law jurisdictions are recognizing new remedial doctrines that tailor the temporal scope of judicial decisions. Sam’s presentation focused on how these remedies are evolving in Canada and England, their significance and their controversial development.

TRU Law Assistant Professor Matt Malone also delivered a talk: “Here’s ATIP: A Workshop on Canada’s Access to Information and Privacy Acts”.

* Ryan Gauthier is an associate professor at TRU Faculty of Law. He is currently on sabbatical leave, and drafted this submission in Bali.

Matt’s session discussed how information and privacy laws are notorious for their byzantine nature and operation. He provided some practical advice for navigating these systems, and highlighted how lawyers can use them in their research and their advocacy.

INTERNATIONAL LAW STUDENTS ASSOCIATION CHAPTER ESTABLISHED

TRU Law established a chapter of the International Law Students Association in fall 2022. This was thanks to the initiative of 1L students Nadia Ruscitti and Emily Redekop. In early March, they held their inaugural event, which focused on national security issues. Andrea Charron, director of the Centre for Defence and Security Studies and an associate professor at the University of Manitoba, delivered a timely presentation titled “NORAD, Balloons and Modernization”.

OTHER CONFERENCES AND EVENTS AT TRU LAW

TRU Society of Law Students Conference

Every February, the TRU Law Society of Law Students holds its annual conference. This year’s conference was held on February 2–3, titled: “Mental Health: The Law and the Impact on Those Who Practice”. The speakers included:

•Judge Lyndsay Smith

•Derek LaCroix, K.C., Executive Director, Lawyers Assistance Program of BC

•Andrea Rayment, Director of Professional Development, Clark Wilson

•Ruby Dhand, Professor, TRU Law

•Randy Bassi, Partner, Cassels Brock & Blackwell LLP

The conference was chaired by TRU Law 2L student Jaya Gill. The other TRU Law students involved in organizing the conference were Dallas Boyer, Amandeep Cheema, Laura Ibsen, Michael McDonald and Pahul Gupta.

A2J WEEK

During Access to Justice Week, TRU Law held several events to mark the occasion. Speakers included:

•Myrna McCallum, who hosted a session on “Creating Connection in Legal Practice”

•Jeremy Matson, who spoke about the experiences of being a selfrepresented litigant

•Justice Groves and Emily Quinn

•Judge Ogle, who spoke on “Drug Treatment Courts – Innovative Justice for Drug-Driven Crime”

The CBABC also hosted an event at TRU Law titled “Access to Justice: Whose Job Is It Anyways?”

TRU Law students Hannah LeRoy and Matthew Hauzer, co-presidents of the Access to Justice Club, worked alongside Assistant Professor Andrew Pilliar and members of the A2J Club to put the week’s events together.

MOOTS

Finally, moot season has been underway at TRU Law. For now, we’d like to focus on the moots that TRU Law hosted.

TRU Law hosted the BC Law Schools Competitive Moot on February 11, 2023. The BC Law Schools moot takes place between students of TRU Law, the Peter A. Allard School of Law and the UVic Faculty of Law. A moot is not easy to organize, and we’d like to thank Justice Gomery, the B.C. courts and participating judges for their roles in organizing and adjudicating the moot; Sam Beswick of the Allard School of Law for organizing the moot; and TRU Law Assistant Dean Lana Walker and Special Projects and Events Coordinator Cara Karpluk for their roles in hosting the moot.

Of course, TRU Law also had a team compete in the moot. Norman Atakhanov, Meng Bao, Michael Rouault, Steven Parker and Elliot To represented TRU Law. While they did not come away with the victory, coaches Danielle Ching McNamee and Bradford Smith, K.C., did an outstanding job in preparing the team for the moot.

Finally, TRU Law held the second edition of its Internal Moot Court Competition on February 9. Emma Payne and Erin Pillipow took home the top prize this year. Thanks goes to this year’s competition organizers, TRU Law students and co-presidents of the Oral Advocacy Club, lou beckett and Kendra Hewson.

THE ATTORNEY GENERAL’S PAGE

By the Honourable Niki Sharma, K.C.*

PUTTING PEOPLE FIRST IN B.C. LAW REFORM

My role as Attorney General is to make sure our justice system has the tools it needs to provide equitable and fair access to justice and services for all. That includes making sure our laws meet the needs of people today.

Reforms to the Election Act

For example, in early March (the time of writing this column), I introduced amendments to the Election Act, based on recommendations from British Columbia’s chief electoral officer, to make it easier for voters in British Columbia to cast their ballots, while continuing to combat disinformation, increase transparency and strengthen third-party advertising rules in the provincial electoral process.

We saw an unprecedented number of advance and mail-in ballots for the 2020 Provincial General Election. That’s why we have proposed changes to make voting-by-mail and confirmation of ballots more efficient and accessible for people by removing the requirement for a witness declaration, improving the identity verification process and making it easier to drop off ballots at other locations.

We are also taking steps to make sure our legislation keeps pace with the way people access information. Since the Election Act was designed at a time when the internet was not widely used, there’s a need to amend the Act to address online political campaigns and election advertising. That is why we are also establishing restrictions on intentionally making false statements about objective biographical information about candidates and senior officials of political parties, and cracking down on the spread of deliberate disinformation about voting eligibility, dates, times and locations. If passed,

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

these amendments will enhance the integrity, transparency, accessibility and efficiency of provincial elections, making it easier for voters to make informed decisions.

Updating the Family Law Act to Better Meet the Needs of People Today

Another way we are taking a people-centred approach to legislation can be found in the Family Law Act. We recently consulted with British Columbians on updating the Family Law Act to address issues related to the division of property and pensions between spouses that were not contemplated when the Act came into force in 2013.

As someone who has devoted much of her law career to advocacy, I am proud that, in addition to respecting substantive law, which is informed by legal experts, we are also applying a social justice lens and consulting with the community to ensure we are hearing the right voices when developing new law reform solutions. An example of this can be found in the amendments to the Family Law Act

When it came into force in 2013, the Family Law Act introduced reforms to address the needs of families in British Columbia. As the primary private family law statute in British Columbia, the Act impacts almost all areas of family justice in the province. Ten years later, however, society has accepted a broader definition of “family”, including recognizing the rights of individuals who identify as 2SLGBTQ+. The modernization to the Act we are undertaking is based on its crucial importance to family justice in British Columbia, recent societal changes that have left gaps since the Act came into force and the development of case law and other legislative reforms such as to the Divorce Act since its enactment.

My ministry has begun a multi-year review of the Family Law Act. This review is being implemented in three phases to provide government, advocacy groups and the public ample opportunities to share their input over time.

Phase one covers pension division, property division and spousal support. We recently summarized the input from our public engagement on these topics in a “What We Heard” report posted on the B.C. government’s website: <https://www2.gov.bc.ca/gov/content/justice/about-bcs-justicesystem/legislation-policy/current-reviews/family-law-act-modernization>.

Some of the key takeaways from the report include that most respondents felt that the Act should:

•clarify the types of court orders and agreements that can be made in relation to family pets when spouses separate;

•clarify how gifts between spouses should be handled when spouses separate and when a gift was one spouse’s excluded property; and

•end the common law principle of the presumption of advancement.

I am also pleased that our efforts to engage with Indigenous communities on this topic continue to look at how Indigenous cultural property is addressed under the property division provisions of the Family Law Act

Phases two and three are in development and will focus on issues including protection from family violence, guardianship and parenting arrangements, and parentage. We’re committed to continuing to engage with people from across British Columbia throughout all phases of the review.

New Legislation to Help People Better Protect Their Intimate Images

I was also honoured to introduce the Intimate Images Protection Act to better protect people from the harmful effects of having their intimate images shared without their consent and provide a clear legislated avenue for civil actions to seek monetary damages for harms suffered.

In 2020, Statistics Canada reported an eighty per cent increase in policereported incidents of non-consensual sharing of intimate images across the country compared to the previous five years. We know that there are even more cases that go unreported because of the embarrassment and ridicule that victims of this type of abuse can experience.

The legislation covers intimate images, near-nude images, videos, livestreams and digitally altered images, including videos known as “deepfakes”. It will create a new, fast-track process for getting a legal decision that an intimate image was recorded or distributed without consent and ordering people to stop distributing or threatening to distribute intimate images. If passed, it will provide recourse for minors to pursue legal action to stop the distribution of their private images and will also offer a clearer legal avenue for lawsuits to seek monetary damages for harms suffered. To support the legislation, the Civil Resolution Tribunal will expand its online portal to help people define their legal issues, provide information on their rights, access immediate self-help tools to begin remedial action and connect to community and mental-health supports.

The legislation is the result of in-depth consultations led by former Parliamentary Secretary for Gender Equity, Grace Lore. We heard loud and clear that people wanted a civil avenue to get their images offline as quickly and easily as possible. This process will complement the existing criminal process, which we know places a burden of proof on victims that can have traumatizing effects.

We know that victims of sexualized violence need not only access to justice, but also supports. This legislation is victim- and trauma-informed and

is one part of the work we’re doing across government to address genderbased violence.

Gender-based violence happens in communities of every kind, urban and rural. It happens at work, at school and in the home. Indigenous women, immigrants and newcomers, racialized people, transgender people, gender-diverse people and others in the 2SLGBTQ+ community, as well as people with disabilities, are especially targeted with this form of violence. It’s for this reason that British Columbia has committed to develop an action plan to help prevent, address and respond to gender-based violence. The Parliamentary Secretary for Gender Equity and the Minister of Public Safety and Solicitor General are leading the development of this plan to ensure survivors have access to the supports they need.

This will build on work already underway, including funding for sexual assault services and violence against women programs, safe housing for women leaving violence and paid leave for survivors of domestic and sexual violence.

The misuse of non-disclosure agreements (“NDAs”) is another tool that has been used to prevent people from speaking out about unjust things like sexual misconduct and gender-based violence. That is why I was glad to hear the Canadian Bar Association adopted a resolution to rein in the use of NDAs with a near-unanimous vote of ninety-four per cent.

My staff is closely monitoring legislative developments in other jurisdictions and reviewing information provided through the “Can’t Buy My Silence” campaign and other sources, to determine if and how changes should be implemented in British Columbia. This work is in the early stages and will help us make sure any policy changes we make don’t have unintended consequences.

As always, it is crucial that we move carefully and intentionally so the changes we’re making are positive ones and do not perpetuate further harms for the people of British Columbia. It is with patience, dedication and intentional listening that we will be able to build a just, fair and equitable province supported by laws that always put people first.

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

NOS DISPARUS

By R.C. Tino Bella

John Craig Paterson

A lawyer and activist, Craig Paterson challenged the unfair decisions of the Workers’ Compensation Board of British Columbia and advocated for fairness and justice. His mentoring stimulated many lawyers to join him in an underserved area of law. He died on January 26, 2023 at the age of 76.

In 1980, injured workers applied to the Workers’ Compensation Board in about the same numbers as motorists applied for ICBC benefits. However, few could effectively challenge the Board’s decisions without access to the injured worker’s file containing medical reports and opinions upon which the Board denied a worker benefits. Craig’s advocacy in Napoli v. British Columbia (Workers’ Compensation Board) (1981), 29 B.C.L.R. 371 (C.A.), a judicial review decision, forced the Board to finally grant injured workers access to these files rather than its limited summaries.

Craig’s work with the late James (Jim) Sayre and Allen MacLean from the Community Legal Assistance Society (“CLAS”) on the Napoli case caused the Board to recognize its compensation procedures had to comply with “a high standard of justice”.

The importance of disclosure was well illustrated in Vincenzo Napoli’s case for permanent disability. The Board provided summaries of only 4 pages and later 16 pages, which disclosed 30 medical and other opinions on the claim file. Although the summaries said that Mr. Napoli’s ongoing back disabilities occurred after he fell down a railway embankment, the summaries did not say that it was a 70-foot embankment. Nemetz C.J.B.C. noted that the summaries disclosed allegations and observations that would undoubtedly be challenged by counsel and held that the provision of summaries was not sufficient compliance with the rules of natural justice.

About eight years previously, the wonderful Tom Berger, Q.C., had tried unsuccessfully to get courts to recognize that injured workers should have access to their files on appeal.

Craig was always pushing for safer and more effective health and safety regulations. In his February 28, 2023 obituary in The Globe and Mail, Rod Mickleburgh described him as “a warrior in workers’ health and safety”.

After growing up in Welland, Ontario, Craig graduated in law from the University of Western Ontario. He obtained a master’s degree in law from Harvard so quickly that he was teaching law at the University of Windsor in his early twenties.

When Craig came to Vancouver in the early 1970s to work at the BC Workers’ Compensation Board under its new chairman Terry Ison for the first NDP government, Craig played a major role in developing groundbreaking occupational health and safety regulations, which put more onus on employers for workplace safety and safer working conditions.

After chairman Ison was fired by the new government, Craig showed his principles by resigning from the Board to protest its new direction and his colleague Connie Sun/Munro left soon afterwards.

Craig set up his practice with Connie when few lawyers in private practice specialized in workers’ compensation cases and occupational health and safety.

In addition to many groundbreaking legal challenges, Craig hired and mentored many lawyers, helping them to think and write more effectively so they could and did contribute to fighting for individual workers’ rights as well as changes to law and policy. Craig’s legacy includes those he mentored and now practise in workers’ compensation, or work as in-house advocates within unions, and even became members of the appeal tribunals hearing workers’ compensation cases.

I attended the founding meeting of the Workers’ Compensation Advocacy Group (“WCAG”) in 1981 with Craig to meet with Allen MacLean at CLAS’s office.The resultant WCAG meetings and online discussions shared positive decisions, advocacy tips and policy papers, which are part of Craig’s legacy and continue under the aegis of PovNet.

As his articling student in 1980, I observed Craig to be a wonderful single parent to his pre-teen daughter, Tamara, on top of his busy practice. I was impressed by how he took care to cook healthy meals for her and even ironed her clothes. Tamara and her son Jack were always special to Craig.

Craig shared his love of attending Canucks hockey games and offered tickets to games and music concerts. His immaculate home and garden showed off both lovely and quirky art.

Let me provide an example of Craig’s quick sense of fun and energy and charisma.

A law school friend recalls going to the beach with Craig on Canada Day. Was it Wreck Beach or the far end of Locarno Beach? In any event, Craig nude, stood up and started singing “O Canada”, and the surrounding beachgoers joined in.

I treasure the chubby ceramic white and black garden pig I received from Craig just before the COVID-19 pandemic. It is one of eight to ten he bought and gifted to friends.

He always pushed for social justice; his numerous friends can share stories about Craig’s generosity to friends and family in need.

Craig was troubled by back pain and post-surgical and emotional problems in his last years, which saddened us all. However, his many friends honour his legacy. Craig used his undisputed intelligence, persistence, compassion and humour to help others and to make his local world more fun and more beautiful.

Craig leaves his brothers Scott, Robert and Cameron; his sister Janet Ohlman; his daughter Tamara; and his grandson Jack.

Craig left this earth a better place, and it was an honour to be his friend.

Judith C. Lee

John William Seddon

John was born in Vancouver, but very shortly after his birth, the family moved to Shanghai, where John’s father worked as a lawyer. John started school in Shanghai, but at age ten he was sent to England to attend prep school. Soon after, the war broke out and John was sent to Vancouver, where he attended St. George’s School. During the war, John and his mother lived in a converted apartment in the Gabriola Mansion on Davie Street, which subsequently became the site of Hy’s Steakhouse and other restaurant ventures.

During the war, John’s father was interned by the Japanese on December 8, 1941 and not released until 1946. He returned to Shanghai and to the practice of law until 1949, when he was diagnosed with cancer. He moved to England to seek treatment, but died there later that year.

John attended UBC and graduated from law school in 1951. He began his legal career in the legal department of BC Electric (now BC Hydro). While at BC Electric, he was deeply involved in the decommissioning of interurban rail lines. Subsequently, he entered private practice with the firm Buell Ellis and soon became a partner. He practised there until 1985, when Buell Ellis merged with Sutton Braidwood and Cumming Richards to form Richards Buell Sutton. He remained a partner there until his retirement in 1996. John became known as one of the leading mortgage lawyers in British Columbia. He testified as an expert witness in the B.C. Supreme Court on an issue involving mortgage law and practice. He served as counsel to the Mortgage Investment Association of BC for more than 30 years.

John drove to work every day from the North Shore in his red Alfa Romeo sports car with the top down regardless of weather. He was able to simultaneously drive a manual-shift car, drink a coffee, smoke a cigarette and gesture to less-skilled drivers. Truly a skilled multi-tasker.

John was a valued mentor to many young lawyers. Whenever someone would appear at his door looking for help with a legal issue, he would invariably say, “Come on in, the water’s warm.” In the days when you could smoke in the office, he kept his huge, eight-inch wide, three-inch deep ashtray filled to the brim. He dispensed his wisdom through a smoky haze. It was sometimes difficult to see him through the haze and over top of the pile of files on his desk, which must also have served as his filing cabinet. In spite of what appeared to be a huge mess, John was very well organized. He could retrieve any file in a matter of seconds.

Another fixture in John’s office was his father’s barrister’s wig, which John proudly kept mounted on the oak bookshelf behind his desk.

In retirement, John devoted more time to gardening, and he took up building birdhouses.

John is survived by his loving wife of more than 70 years Elizabeth; children Rory (Patti), Colin (Charlene), Peter (Shelley) and Lea Hofseth (Lance); and grandchildren Kristi and Turner Seddon and John and Robert Hofseth.

Jim Vilvang, K.C., Mike Shane and Peter Seddon

William M. Holburn, K.C.

On November 17, 2022, the legal profession lost a giant. William M. Holburn, K.C., passed away peacefully with family by his side after a lengthy illness. He is survived by his wife Janet, his children Bill Jr., Andrea and Scott, and seven grandchildren. Bill was one of the founding partners of Alexander Holburn Beaudin + Lang. Bill’s nationwide reputation as a practice leader and tenacious advocate is nothing short of legendary.

Bill was born in 1941 in Winnipeg and grew up in the neighborhood of St. Vital as an only child. His fierce independence was developed at an early age when, in 1955, he lost his father. For a period in his youth, he and his mother moved to the West Coast and settled in East Vancouver. Bill remembered the exact address on 1st Avenue, between Commercial Drive and Victoria Drive, and was always proud to say he was both a “Winnipegger” and an “East Ender”.

Bill eventually returned to Manitoba and in 1963 entered the four-year program at the University of Manitoba law school. At the time, students attended classes in the morning and worked as articled students for the remainder of the day with a local law firm. Bill also worked part-time as a reporter for the Winnipeg Free Press. After graduation in 1967, Bill secured a position with the firm of Fillmore Riley. While practising with Fillmore Riley, Bill met Earnie Beaudin when both were junioring a trial in Brandon on opposite sides. During the evenings, while playing pool and enjoying a beer or two, they learned of their mutual interest in eventually moving to Vancouver to practise law. Earnie moved in 1969 to join the firm of Fulton Cumming Bird Richards and Bill joined the same firm a year later.

During this trial, Earnie caught his first glimpse of Bill’s craftiness and ingenuity as counsel. The case involved the collapse of a building into an excavation being dug immediately adjacent to the building. The result seemed clear. If you dig a hole next to a building and the building falls into the hole, you’re liable. Bill was acting for the defendant. The defence was novel. He argued that the damaged building was old and decrepit and was going to collapse in any event with or without the excavation and the excavator operator did nothing wrong. His key witness, the machine operator, had gone missing soon and it wasn’t until just before the trial that Bill was able to locate him in remote Manitoba. He was brought to trial to testify.

There was only one problem. In the wilds of Manitoba where this fellow was from, there was no running water other than a local stream and it was apparent when he arrived that he hadn’t bathed in weeks. While Bill and the senior lawyer, Win Norton, were dressing in their court gowns in the Barristers’ Room, Win, having already laid eyes on the disheveled witness, looked at Bill and said scoldingly, “Couldn’t you have cleaned him up a bit?” Bill smiled and with a twinkle in his eye said, “Watch me.” The machine operator was called to the witness stand. Win began his examination-in-chief with the usual preliminary questions and then, looking at the witness more closely, he blurted out, “That’s my jacket! Bill, what the hell have you done? That’s my jacket!” According to Earnie, the witness looked dapper in his new threads and performed well on the stand. Following his evidence, even the judge complimented the witness on his fine attire.

Bill did not stay at the Fulton Cumming firm for long. In November 1971, he and Earnie formed their own firm along with Jim McLachlan, a senior insurance lawyer who had joined them from Winnipeg. The new firm was McLachlan Holburn Beaudin, and in 1972 they became tenants on the 16th floor of the brand new TD Tower at West Georgia and Howe. Two floors above them was Robson Alexander & Guest. In 1973, one of Robson Alexander’s clients had a dispute with its insurer over a fidelity bond. Bill was acting for the insurer and was putting up a tough defence. A young lawyer at the Robson Alexander firm, Stuart Lang, decided to go down to the 16th floor to meet with Bill to see if he could make any headway on the case. Stuart didn’t know that Jim McLachlan had just passed away. He found Bill and Earnie Beaudin disconsolate at their boardroom table, having just returned from Jim’s funeral. Several hours and a few drinks later, they discussed merging their firms. On May 1, 1973, the firm of Alexander, Guest, Wolfe, Holburn & Beaudin was formed. About ten years later, the firm’s name was changed to Alexander Holburn Beaudin & Lang.

Bill provided strong leadership as the firm grew, largely on the strength of the many clients he attracted. He quickly developed a reputation in the Canadian, American and U.K. insurance markets as one of the top lawyers in Canada and a go-to lawyer for “bet the company” litigation. He was retained in the late 1980s to act for underwriters in what was then one of the largest property damage cases ever litigated in Canada, with about $1 billion at stake. It involved the flood of a potash mine in Saskatchewan and was set for trial for 18 months. There were over 300 days of discovery and hundreds of thousands of documents (back in the days when there were no document management systems). The plaintiff, International Minerals Corporation, was represented by a large national firm, so Bill was very

proud to comment on how the defendants bypassed all the available firms in Toronto to retain his firm. And when Bill said this, he always referred to the firm, not himself.

Bill was a skilled and fearless advocate who appeared in courts across the country, including several appearances at the Supreme Court of Canada. He handled numerous high-profile cases including Campbell v. Flexwatt, one of the first class action suits certified in British Columbia; the insurance coverage arbitration arising from the terrorist attacks on the World Trade Centre; the Save-On-Foods roof collapse; Bazley v. Curry, the seminal Supreme Court of Canada decision on vicarious liability; and numerous coverage cases that helped shape the law of insurance in Canada. For a period, he also “dabbled” in NHL salary arbitration work, acting for the Vancouver Canucks in the Petr Nedv˘ed and Vladimir Krutov arbitrations. During that time, he spent countless hours with the Canucks’ general manager, Pat Quinn, and his assistant general manager, a young Brian Burke. The stories were endless.

Whether in the courtroom or at the partnership table, Bill had a commanding presence. Nothing intimidated him. He knew how to take it, and he knew how to give it back, even to the judiciary. During one of his many appearances at the Court of Appeal, he was well into his submissions when he was interrupted by Mr. Justice Braidwood, who said, “Mr. Holburn, you’ve made that point several times—there’s no need to repeat it.” Bill responded, “My Lord, it’s a really good point, so you’re going to hear it a few more times before I’m done.” On another occasion, Bill was cross-examining a witness of suspect credibility. After the witness gave a less than forthright response, Bill looked sternly at him and with an authoritative tone said, “We’re going to take a break right now, and over the break I want you to think long and hard about the answer you just gave.” This was followed by the judge saying, “Well, I guess we’re taking a break now.”

Bill was a mentor to numerous lawyers at the firm. One would not describe his mentoring style as nurturing, but no one could deny that when you worked with Bill, you learned a lot and you learned it well. If he was not pleased with your work product, he would let you know in no uncertain terms. Occasionally, feedback came in large red letters on the legal opinion or memorandum you had written that spelled out “Wrong” or “Try Again”. However, when you got a nod of approval from Bill, it was gold. He was committed to excellence and made a point of telling clients that the firm hired only the very best people. He was so very proud of the firm and the people he worked with. Indeed, he had a keen eye for talent, whether that person was a firm member or a lawyer on the other side of the case. It goes without saying that his opinion was regularly sought when it came to hiring

new lawyers and his opinion meant a great deal. At one meeting, as the partners were considering a potential new hire, Bill was asked if he had any thoughts. He responded, “I know him quite well and I have to tell you he’s just a wonderful guy—a real gentleman and one of the nicest fellows you will ever meet. Not much of a lawyer, but a really great guy.” The discussion came to an abrupt end.

At another meeting, the partners were discussing the admission to partnership of one of the firm’s senior associates. A partner who worked closely with the associate made the presentation. To say that his commentary on the associate was glowing is a vast understatement. He went to great lengths to describe the brilliance of the associate and was gushing with praise. When he was finally finished, Bill immediately piped up and said, “Well, before you started talking, I was going to vote ‘yes’.”

This was but one example of Bill’s sense of humour, which was demonstrated regularly, particularly in his later years at the firm. To young lawyers who had just joined the partnership, he was often heard to say, “At this firm, all partners are created equal, but some are more equal than others.” On a marketing trip to Toronto with one of his associates, the subject of an upcoming motion in Vancouver came up. There were several senior lawyers on the opposing sides, all of them Queen’s Counsel. Bill asked the associate whether the application was a winner. The young lawyer responded with an emphatic “no”. Bill said, with a friendly smile and encouraging slap on the back, “Fine then, you fly home and argue the motion. I’ll reschedule my flight and stay here for dinner with a friend.” The young associate caught the red eye and made it to court the following day for the expected result.

Bill retired from practice in 2017. The firm held a retirement dinner for him at the Four Seasons Hotel that was attended by all firm members and former Alexander Holburn partners and their spouses. There were several hundred people there—a testament to what Bill Holburn meant to his firm, now over 100 lawyers, and the people in it.

But, as much as Bill meant to the firm he built, he meant so much more to his family. Bill and Janet were married in 1966, having met at the University of Manitoba in 1963. Far from the gruff and gritty counsel we knew, Janet speaks of Bill the romantic—the love of her life and the only person she knew who could recite by heart the love poems of John Keats. They shared a loving bond for close to 60 years. Bill’s three children meant everything to him. He spoke often of them and was so very proud of their accomplishments. He cherished the time he was able to spend with them and his seven grandchildren.

In a stellar career, Bill earned the admiration and respect of his colleagues and has left a rich legacy of unyielding commitment to excellence, fairness and devotion to the law. There will never be another like him.

Bruno De Vita, K.C., Earnest C. Beaudin and F. Stuart Lang

The Honourable John Donald Truscott

The Honourable John D. Truscott, formerly a partner with Guild Yule LLP in Vancouver and for 15 years a justice of the Supreme Court of British Columbia, passed away in September 2022 at the age of 74.

John was born in Saskatoon and educated at the University of Manitoba, obtaining a B.A. in 1968 and his LL.B. in 1971. The biographical sketch in the January 2003 edition of the Advocate that accompanied his appointment to the bench noted that his undergraduate major had been philosophy. This may have been surprising to even his closest colleagues, for John, while logical and analytical, was more practical than philosophical, and always at least as much an athlete as an academic.

He found articles with what was then the firm of Guild, Yule, Schmitt, Lane, and Hutcheon, where he remained on his call to the bar in 1972. He began his career as many young insurance litigators do, defending modest personal injury claims arising out of vehicle collisions, slip and falls, and other catastrophes of daily living. Exploding soda pop bottles was an early niche practice area. The regular departure of partners from the firm to the bench soon opened up opportunities and challenges, and John proved able to conduct with considerable skill the complex commercial, municipal and malpractice litigation that then came his way.

When a case needed to be fought, he did not shy away from court. His cross-examinations became legendary. But he did not sugar-coat his opinions, and made sure that his clients understood the risks of trial and the possibilities of settlement. They appreciated his frank advice. The compassion and empathy he demonstrated to plaintiffs he acted for in personal injury cases was extraordinary. He conducted his cases fairly, and opposing counsel knew that they could take him at his word.

John became a leader within the firm. He was a regular source of advice on the law, ethics and litigation tactics, for junior and senior lawyers. He was generous with his time, considerate, kind and discreet. And if you needed to drive out to Surrey to interview a witness, and could “drive stick”, he could usually be persuaded to hand over the keys to his Honda Accord— fully insured for business purposes—but always with a warning: “Don’t drive it like it’s your car. Drive it like it’s my car.” In some ways he was the conscience of the firm. His innate sense of right and wrong was often fundamental to building consensus. One example is that as the numbers of women graduates from law schools swelled in the late 1970s and 1980s, John’s inclusion and encouragement of young female lawyers set the tone. That was a time when clients might be opposed to a woman working on their files, but John would have none of that, and would insist that good lawyers be given a fair shake.

Bud Hollinrake and Lance Finch were mentors to John in his early years, and they passed on to him lessons they had learned from Frank Collier, who also became a lifelong friend. One such lesson in particular was viewed by John as the hallmark of the firm’s approach to litigation: know your own case, and know the other side’s case better than the other side knows it. He held his associates to that same standard of preparation. Many were the juniors who griped that up to the eve of a trial, John would have them rechecking even the most fundamental points of the evidence and rereading seemingly innocuous statutes and regulations, pressing them to tease out ambiguities and anticipate possible lapses in a witness’s memory, or off-thewall questions from the bench. (One classic example was the time his pregnant junior had gone into labour: as her husband begged her to get off the phone so they could go to the hospital, John kept her on the line, going over some of the finer points of a case set for trial the next day.) His juniors often saw in court how that level of attention to detail could pay off.

It was not all work and no play. John played intramural ice hockey, baseball and football as a younger man. Later in life he became an avid golfer and was a member at Quilchena. He was actively involved in the lives of his two children, Michael and Christine, and coached Michael’s hockey and baseball teams, the latter including a run to the national championships. Both children were inspired by his example to pursue careers in the justice system, Christine as a paralegal, Michael as a youth probation officer.

John was appointed Queen’s Counsel in 1998 and to the Supreme Court in 2002. His judicial career was based in New Westminster. The filings in that registry, with the high volume of criminal and family law cases, present a pretty steep learning curve for a civil litigator, but again he proved able, and revelled in the challenges the work presented. The New West judges enjoy a

fairly distinct atmosphere of collegiality and camaraderie, and John became an important part of daily life in the back halls of that courthouse. He often said that New Westminster was the best place to be a trial judge. He thoroughly appreciated his colleagues, and felt privileged to serve.

John and his wife Brenda had looked forward to him attaining supernumerary status after 15 years on the bench, and having more time to dote on grandchildren and travel together, but sadly John began experiencing issues with his memory, leading to him having to retire. He was eventually diagnosed with Alzheimer’s. In his last years, he received excellent care from the staff at Laurel Place in Surrey. He is deeply missed.

The Honourable Anthony Saunders

One day in the mid-1980s, the MLA for Vancouver Centre addressed the legislature about what he believed to be serious deficiencies in British Columbia’s human rights legislation. But after confronting the appropriate minister on that issue, he turned his attention to another member of the Cabinet:

Before I take my seat, I want to the bring to the attention of the poor wretch up in Trail who is looking for his Volkswagen car seats that I think they have now become the Minister of Intergovernmental Affairs’ jacket.

That small moment captured two of the defining features of Gary Lauk: a passionate commitment to social justice combined with a lively wit that delighted and disarmed even his political and legal adversaries.

Gary Vernon Lauk, K.C., died on November 21, 2022 at the age of 82. Tragically, his death came only two months after the death of his former wife and lifelong soulmate Rosemary Nash and three weeks after the death of their only son Greg.

Gary was born in Vancouver on September 7, 1940, and grew up mostly in New Westminster, where he graduated from high school. He liked to tell the story of the elementary school principal who called his mother into his office to tell her she should not expect her son to have any academic suc-

Gary Vernon Lauk, K.C.

cess. It is not known if that principal lived to see Gary become both a lawyer and the youngest Cabinet minister in British Columbia, if not in Canada.

Gary attended the University of British Columbia. Before being called to the bar in 1967, he articled with the legendary H.A.D. (later Justice) Oliver—an experience that not only became the source of many entertaining anecdotes over dinners, but also likely contributed to Gary’s penchant for hand-tied bow ties. He then practised with the equally legendary Harry Rankin, then in a successful partnership with Les Harowitz and Steve Tick.

But politics soon beckoned. In 1972, he was elected MLA for Vancouver Centre and became part of British Columbia’s first New Democratic Party government under Premier Dave Barrett. During that campaign, he characteristically decided he didn’t like the visual quality of the NDP’s election materials and hired a designer to develop a new logo. In another departure from standard political practice, he and Emery Barnes, his running mate in what was then a two-member riding, handed out flowers to voters during their early morning campaigning at bus stops.

I met Gary during my first career as a journalist, when I was assigned to assist in covering the Barrett government’s first winter/spring legislative session in 1973. (Newspapers actually reported on such things in those days.) Gary was then a government backbencher, seated in the House of Commons next to Graham Lea of Prince Rupert. They came to be known as “Heckle and Jeckle” for their lively interjections during debates. With the help of a rotating supporting cast of reporters and other MLAs, they also closed the Empress Hotel’s bar on many nights—sessions that were much more entertaining than whatever had gone on in the legislative chamber that day. At the time, Premier Barrett had let it be known that he would be expanding his Cabinet after the legislative session. The jockeying among backbenchers for the premier’s attention and approval was anything but subtle. One night at the Empress, Gary accused Lea of being so desperate for the promotion that he was washing Barrett’s car every weekend. “And it’s hard to do,” Lea replied, “because I have to keep saying ‘get out of the way, Lauk’.”

As things turned out, they both became Cabinet ministers in the spring of 1973, with no car washing having been involved. Gary became Minister of Industrial Development, Trade and Commerce. He remained in Cabinet for the duration of the government’s time in office and, in the fall of 1975, became Minister of Mines and Petroleum Resources.

Early in his legal career, Gary met Rosemary Nash, who was to play vital roles in his political campaigns and constituency organization. They were living together when Gary joined the Cabinet, but Premier Barrett insisted

that they get married before they joined him on a trade mission to Japan, where cohabitation outside of marriage was not yet common. Rosemary later attended law school and practised family law in Vancouver.

Although the Barrett government was defeated in the election of December 1975, Gary was re-elected, then held his seat through two more elections. He remained proud of the Barrett government’s achievements and his contributions to them, but found the life of an opposition MLA much less satisfying. By 1986, he was ready to leave politics. At the same time, Mike Harcourt felt he had accomplished what he had set out to do as mayor of Vancouver. They agreed that Gary would step down to allow Harcourt to replace him as NDP candidate in Vancouver Centre, paving the way for Harcourt to later become party leader and premier.

The high regard in which Gary was held by MLAs on both sides of the house was demonstrated shortly after he left politics. When the government appointed a commission to look into cost overruns on the construction of the Coquihalla Highway, a former Social Credit Cabinet minister retained Gary as his counsel when he was called to testify.

While he was an MLA, Gary continued to practise law as much as his political duties allowed, first with Turco Moscovich Aikenhead, then through Lauk and Associates Law Corporation. After his retirement from politics, he resumed full-time legal practice through Lauk and Associates. In the mid-1990s, that civil litigation firm joined forces with Terry La Liberté’s criminal practice under the name Lauk La Liberté. Although they did not meet and become friends until the early 1990s, Gary and Terry discovered (over fine wines at a dinner party) that they had graduated a few years apart from the same high school in New Westminster, had both served as altar boys at the same church in Sapperton, had both been articled to H.A.D. Oliver and had a long list of common acquaintances.

Gary’s diversified civil litigation practice included areas such as wrongful dismissal, defamation, commercial litigation and administrative law, but he was primarily known as plaintiffs’ counsel in a wide variety of personal injury and wrongful death cases. Those included motor vehicle collisions, other transportation incidents, medical malpractice, occupiers’ liability, civil assaults, recreational injuries and products liability. Working for individual plaintiffs was a natural area of practice for someone who believed as strongly as he did that justice can be achieved only when individuals who have no power are placed on an equal footing with society’s powerful institutions and individuals.

He was particularly known for his skill and success before civil juries. His ability to understand and relate to jurors, and the results that produced, probably owed something to his political experience in dealing with a wide

range of voters. One former colleague describes him as “the best gut instinct jury lawyer I ever saw”.

Gary was a firm believer in and defender of the civil jury system. To him, the idea that jurors reflect community values in a way judges and lawyers never can was more than just a cliché. He was also outspoken in his belief that the civil jury system had to be defended from what saw as a relentless media campaign by powerful interests to undermine and ridicule it.

He had no patience with the argument that some cases, such as those involving alleged medical negligence, are just too technical and complicated for jurors to understand. He believed that any case could be made comprehensible to a jury if judges, lawyers and expert witnesses spoke in laypersons’ language and if careful pre-trial management by the court and counsel reduced the issues to a manageable and understandable form.

His confidence in the good sense of juries led to a simple theory of civil jury selection: “take the first eight.” But there were tactical exceptions. At one jury selection, a person called forward asked to be excused from serving and became visibly upset when the presiding judge was unsympathetic to her asserted hardship. Gary immediately won the favour of the entire jury panel when he rose and announced in front of them that although he was entitled to some pre-emptory challenges, he hadn’t planned to use them “on any of these good people,” but would use one to accommodate this reluctant juror.

Of course, even the best counsel sometimes need a little luck, and his former partner Derek Miura recalls one particular “Perry Mason moment”. They were acting for the plaintiff in a catastrophic injury case arising from a single-vehicle accident, which they alleged was caused by a failure of a tire that had been retreaded and repeatedly patched. The plaintiff’s case had focused primarily on one patch but, to Gary’s surprise, a number of the defendant tire repairer’s employees testified that they had never used that type of patch. That appeared to leave Gary with only an alternative argument based on a theory about the synergistic effect of multiple patches, which had been only passingly suggested in the evidence. Hoping to discuss that theory with someone knowledgeable before he tried to argue it, Gary consulted the mechanic who serviced his vintage 1966 Mercedes convertible, who in turn directed him to a tire patch sales representative. During a lengthy telephone conversation, the sales representative happened to mention that he had sold the type of tire patch in question to the defendant repairer who had denied using it. After that evidence was led in rebuttal, Gary’s client won a judgment based on one hundred per cent liability.

Gary began to wind down his practice in 2003. He transferred his files to Sporer Mah and Co. in New Westminster and remained associate counsel at that firm until his retirement in 2013.

As a plaintiffs’ lawyer, Gary was in a frequent adversary relationship with one of the most enduring creations of the government he once served in: the Insurance Corporation of British Columbia. He believed the tort system was entirely compatible with public insurance. As an active member of the board of governors of the Trial Lawyers Association of British Columbia (“TLABC”), he provided TLABC with invaluable advice on the workings of government and how TLABC needed to approach government in its lobbying efforts. That expertise was particularly vital in the mid-1990s when TLABC organized a public campaign that dissuaded the NDP government from introducing no-fault auto insurance. He spoke at a rally in downtown Vancouver and instructed a group of narrowly legalistic-thinking barristers about how to address the immediate interests of individual politicians and bureaucrats, based on the role of each in the legislative process. The fact that Gary was no longer able to assist may have contributed to TLABC’s loss when the same fight recurred with another NDP government some 25 years later.

Although he was no longer active in politics, it remained a matter of keen interest. He was always willing to talk politics and never shrank from firmly stating his views. Former TLABC president Don Renaud recalls an American Trial Lawyers Association (“ATLA”) conference when Gary got into a political argument with an equally accomplished plaintiffs’ lawyer from the other end of Canada: Ches Crosbie of the prominent Newfoundland Conservative family. According to Don, their debate became so animated that Ches’s wife, Lois Hoegg (now Justice Hoegg of the Newfoundland and Labrador Court of Appeal), told Gary he was “nothing but a provocateur”. For some reason, the debaters found that to be so amusing they quickly became friends again. Don says that forever after Gary could always be teased with the “provocateur” label if he became too strident. (In the interest of fairness and balance, I must add that I am advised that neither Justice Hoegg nor Ches recalls this confrontation.) While most of Gary’s intense discussions with friends about politics and other subjects ended on a similarly pleasant note, there were some unfortunate occasions when they left wounds that were not as easily healed.

Gary was known as a lover of good food, good wine and good company. The late political reporter and columnist Marjorie Nichols once described him, during his time in the legislature, as the best dinner companion in the province. More recently, guests attending dinner parties at his home might find the owner of a leading Vancouver restaurant in the kitchen. The wine came from Gary’s famous cellar, which I’m told did not survive him, and conversation on a wide range of topics was informed by his eclectic reading. His regular attendance at ATLA conventions was partly about finding the

best restaurants in whatever city was hosting the gathering. At one meeting in Chicago in the mid-1990s, Gary learned about a restaurant some 40 kilometres outside the city. He invited me, my wife Linda and Derek Miura to join him there, arranging transportation in a limousine that was well supplied with pre-dinner champagne.

Gary was an opera lover who travelled to famous opera houses around the world and was a regular at Vancouver Opera performances. Friends attending the same opera in Vancouver were often lucky enough to be treated to a pre-performance dinner and post-performance dessert (champagne included) at the long-gone but still lamented William Tell restaurant.

During the 1990s, Gary reconnected with the church he had grown up in and became a devout Catholic. Combining that faith with his love of music, he led a fundraising drive to restore the organ at Holy Rosary Cathedral. However, his home parish was St. Mark’s at UBC where, according to a fellow parishioner, he attended Mass every week and always sat directly in front of the choir. Because the church is on the UBC campus and associated with St. Mark’s College, the congregation included an ever-changing group of students, to whom Gary loved to talk. After Mass, he would regularly go to lunch with a small group of other parishioners and, of course, those lunches reportedly featured lively discussions and disagreements on a wide variety of issues, including the politics of the day. One participant recalls that whenever the name of a public figure in British Columbia or beyond came up, Gary always seemed to know, or at least have met, that person and would happily provide his opinion.

While travelling, Gary sought out local churches where he could attend Mass. One ATLA conference in Miami coincided with Ash Wednesday. Looking for a church where he could attend Ash Wednesday Mass, Gary discovered that Catholic churches are not easy to find in South Beach. He learned of one some distance away and invited Don Renaud and his wife Mary to join him. They turned out to be the only three non-Latinos at a Spanish Mass, much to the parish priest’s delight. After Mass, Don says: “Gary proudly wore the prominent black cross of ashes on his forehead as he carted us off to Joe’s Stone Crab for a great meal and much wine.”

Gary is survived by his granddaughter Lileitia and the family of his late brother Len Lauk: Karen Lauk, Len Lauk and Anita Mullaly and her children Meghan and Owen.

For his many friends in and outside the legal profession, the world has become a less interesting place without Gary Lauk in it. The Honourable Justice Nathan Smith

THE LANCE FINCH MEMORIAL FUND AT TRU CALL FOR DONATIONS

Chief Justice Finch loved the law and devoted many hours as a lawyer and judge to mentoring students, in particular in the area of oral and written advocacy. Chief Justice Bauman has stated: “Lance always commanded the respect of the legal profession in our province and his legacy of significant jurisprudence was acknowledged across Canada. He was a good colleague, a good friend, and a great judge.”

In figuring out how best to honour Chief Justice Finch’s legacy, TRU, Judy Finch (and the Finch family), the judiciary, and members of the bar decided on the establishment of a dedicated endowment in Lance’s name that can be used to advance the development of essential advocacy skills and to provide mooting opportunities to students at B.C.’s newest law school.

Since it was founded eleven years ago, TRU Law at Thompson Rivers University has taken its rightful place as a mooting competitor. Supported by 26 coaches, close to 200 students have mooted against teams from Canada, the USA, Germany, Estonia and Afghanistan. Fifteen TRU mooters have been chosen as clerks in the British Columbia Courts, the Alberta Court of Appeal, the Tax Cour t and the Federal Court of Canada. This endowment fund will help to ensure that law students develop the communication skills and confidence needed to become skillful advocates and leaders, whether in the courtroom or boardroom. Individuals, law firms, and businesses that wish to donate can do so by contacting Sarah Sandholm, Director of Development at TRU Law by email <ssandholm@tru.ca> or phone 250-377-6122.

Individuals can also give online: <tru.ca/giving>

Thank you for your generous consideration,

ORGANIZING COMMITTEE:

Peter Senkpiel, Thomas Cromwell O.C., Robert McDiarmid K.C., & Frank Quinn K.C.

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NEW JUDGES

By R.C. Tino Bella

The Honourable Judge Lynett Jung

On November 8, 2022, Lynett Jung was appointed to the Provincial Court of British Columbia and assigned to the Interior Region, with chambers in Penticton. Lynett’s boundless enthusiasm and inexhaustible energy are legendary—picture an incredibly happy Irish Tasmanian devil or Energizer Bunny whirling about to make things happen. Her appointment leaves a gaping hole in the BC Prosecution Service, but the Provincial Court has gained a patient, fair, compassionate and hardworking judge.

Lynett’s appointment to Penticton brings her almost full circle—a proud Kamloopsian returning to the Interior. Lynett’s dad, Patrick Desmond, was born in County Cork, Ireland and immigrated as a young child with his family to Kamloops. Lynett’s mom, Alice (née Silmon), was born in Winnipeg and also moved to Kamloops as a child. Alice and Patrick met while attending high school at St. Ann’s Academy in Kamloops. They were married 52 years and one week when Patrick passed away in February 2016. Their first daughter, Nola, was born in Lillooet, followed by Tannis, Lynett and Shannon, who were all born in Kamloops (with Lynett and Shannon 18 months apart and one grade apart in school). Lynett enjoyed a very close and supportive family. She is very proud of her Irish heritage and makes regular trips back to Ireland to visit her extended family.

Lynett’s lifelong history of volunteerism began at home where her parents acted as unofficial foster parents, opening their doors to many teens who needed a place to live temporarily. As a teenager, Lynett volunteered with the Special Olympics and later with the Canadian National Institute for the Blind while an undergrad. As an adult, Lynett has volunteered with the De Danaan Irish Cultural Society and the Holy Cross High School Dry Grad Committee.

Lynett graduated from Kamloops Senior Secondary School (also known as Kam High) in 1987 and received the Gold K Award, which was awarded to students who demonstrated good citizenship and excelled in two of academics, fine arts or athletics. Fun fact: Lynett is among a number of distinguished members of the legal profession who have graduated from Kam High. According to the school’s website, Don Avison, K.C., executive director of the Law Society of British Columbia, is a 1972 grad, and Justice Marchand of the Court of Appeal graduated in 1981 (and like Lynett, also received the Gold K Award).

Lynett completed two years at Carleton University before being admitted early to law school at Queen’s University. She graduated from Queen’s in 1992 and articled at Russell & DuMoulin before being called to the B.C. bar in 1993.

Lynett is well known for her diligence and hard work. In fact, these traits were noted very early in her career. As Lynett herself recounted at her welcoming ceremony, when preparing for her first small claims trial as an articled student, the firm librarian told her that it was a good thing she had “a charming personality” as she had “the tenacity of a pitbull”. And then after the trial concluded, the judge asked to speak with her in the back hallway. The judge kindly told Lynett that she had done a good job in court, but then added “on the other hand, you did use a thunder bolt to kill a canary”. This early feedback had a significant impact on Lynett. While she maintained the same level of preparation and tenacity throughout her career, she recognized very early the importance of humanity and a measured and balanced approach. It is fitting that she was sworn in at Robson Square where that first small claims trial occurred.

After articling, Lynett worked in private practice from 1993 to 1997 at Murchison, Thomson and Clarke in Surrey, with conduct of ICBC defence and family and civil litigation files. In 1995, the firm took on the agent’s work on behalf of the Attorney General of Canada and from 1995 to 1997, Lynett primarily prosecuted drug offences.

In 1997, Lynett joined what is now known as the BC Prosecution Service (“BCPS”) in the Fraser Region (Region 3), commencing what ultimately became a 25-year career with the Crown.

Between 1997 and 2011, Lynett worked in the Langley, Abbotsford and Surrey Crown Counsel offices as a trial Crown, charge approval Crown and Administrative Crown Counsel. As a trial Crown, Lynett was organized, hardworking and principled. She had conduct of all manner of prosecutions, from theft under to murder, but developed a special expertise in sexual assault prosecutions. She was a friend and mentor to many.

In 2011, Lynett became the Professional Development Crown Counsel, with responsibility for overseeing the BCPS professional development program. In 2017, she was the first person appointed to the role of Deputy Director, Legal Resources, Learning and Development. Over the course of her tenure, Lynett expanded the professional development program from one lawyer and one administrative staff person to a team of counsel and staff who provide extensive in-house programming to approximately 500 Crown counsel and 375 non-lawyer professional staff in 42 offices across the province. In 2017, Lynett received a BCPS Crown Recognition Award for her leadership.

Lynett was a professional development innovator, always thinking of new ways to use technology to provide the best support to prosecutors and staff around the province. Under her leadership, her team worked on the development of a BCPS trauma-informed practice curriculum, created a formal learning and development plan for the administrative staff and assisted in the development of Indigenous cultural safety programs for the BCPS, including a justice module for the San’yas Indigenous Cultural Safety course. Over three years, Lynett also mentored three interns in the Province of British Columbia’s Indigenous Youth Internship Program. Throughout her tenure, Lynett was passionate about improving service to the legal profession by encouraging innovative practices and working to improve business processes, information sharing and collaboration. She leaves behind the best unit of its kind in Canada.

Lynett was so much more than a supervisor to the members of her professional development team. She was a mama bear and friend who fiercely protected and encouraged them. She championed their successes and stood by their side during challenging personal circumstances. During the pandemic, she organized virtual gatherings to maintain their spirits, and always coordinated extra-curricular work events to encourage team bonding and celebrate her team.

At the BCPS, Lynett also sat on numerous committees, including the HR Advisory Committee and Wellness Working Group, which, among other things, developed programming for prosecutors and staff on vicarious trauma. She was also a founding member of the BCPS Subcommittee on Equity, Diversity, and Inclusion, which tackled issues that are close to her heart as a member of a biracial family.

Lynett’s commitment to professional development extended beyond the BCPS. Lynett has served on multiple Canadian Bar Association committees, including chairing the Professional Development Committee and co-chairing the CBABC Branch Conference. As part of her work with CBABC, she

campaigned for the recognition of lawyer wellness programming for CPD credit. Lynett also co-chaired the international section of the Association of Continuing Legal Education (“ACLEA”) and served on the planning committees for the 2022 ACLEA Annual Conference in Vancouver and the 2022 International Society for the Reform of Criminal Law Conference.

The BCPS is known for its collegiality, and Lynett developed many enduring friendships. Lynett is a devoted and loyal friend who encourages, champions, listens, supports, regularly checks in and comforts. Her laughter is infectious (and can be heard from many offices away). Conversations with her can go on at length. Lynett was immensely proud of her BCPS colleagues. She advocated tirelessly to celebrate their many accomplishments, often quietly working behind the scenes to nominate colleagues for professional awards and King’s Counsel appointments. Lynett’s friends and mentors know who they are, and the word limit on this article is far too short to name all of them. However, a couple warrant special mention. Now Regional Crown Counsel Lori Stevens has been Lynett’s constant friend and supporter since their Abbotsford days, and the late Appeals Crown Counsel Liz Campbell was tremendously supportive during Lynett’s transition from trial Crown to Professional Development Crown.

While Lynett was devoted to her role as Crown counsel, her family has always been her number one priority. Lynett has been married to Michael Jung for 30 years. Michael has always supported Lynett’s work and interests, including running a tight ship at home when Lynett needed to work extra hours on a trial or at a professional development event. Lynett is very close to the extended Jung family, many of whom attended her welcoming ceremony. Lynett and Michael’s extended families were instrumental in supporting their careers and family life.

Lynett is incredibly proud of her kind, smart and independent children, Alex and Naomi. Alex earned a psychology degree from UBC and works in the corporate world. Naomi is in her fourth year of biomedical engineering at UBC. When they were younger, Lynett enthusiastically supported all of their pursuits, including hockey and Irish dance. Both Alex and Naomi were talented Irish dancers who competed at the national and international levels. Lynett was a proud dance mom who travelled the world with them. To this day, you never leave a conversation with Lynett without an Alex and Naomi update or an update about one of her many nieces and nephews, whom she is also very close to and very proud of.

Together, Lynett and Michael enjoy cooking, long walks, card games, travel and leisurely drives. Michael has generously agreed to relocate and work remotely from Penticton, as long as their new Okanagan home

includes at least a three-car garage to allow him to work on his car hobby. At the time of writing, the search for the perfect dream garage continues.

Lynett is very well suited for the role of Provincial Court judge. As a prosecutor, she embodied the role of Minister of Justice, remaining principled and objective at all times. Throughout her career, she has compassionately dealt with victims of violence, vulnerable victims and traumatized individuals. She is a skilled communicator who deals with everyone calmly and fairly, setting a respectful tone to ensure that all voices are heard. There is no doubt that she will, in the words of Socrates, hear courteously, answer wisely, consider soberly and decide impartially. We are all so very proud of her!

The Honourable Judge David Ruse

Kelowna’s most recent appointment to the Provincial Court is Judge Dave Ruse. Longtime Crown in the Kelowna office, a determined advocate who, at 6’5”, towered above most of his colleagues, Dave literally and figuratively dominated the Region 4 landscape for almost 26 years. His family attributes his time as a student at St. Mildred’s Catholic School for Girls with having given Dave all the building blocks for his success.

Dave grew up in Oakville, Ontario. When the time came to make choices about university, without any real idea about what to do, he enrolled in sciences at Queen’s University with a vague idea of transferring into engineering. Dave acknowledges that the decision to enroll at Queen’s was based less on a burning desire to be an engineer than on Queen’s reputation for great parties. It did not take long for Dave to decide, aided in no small measure by having spent a good deal of time enjoying those parties, that he should try the humanities.

More than pursuit of academic excellence, what propelled Dave so successfully through the years at Queen’s was his participation in the rowing program. Joining the Queen’s varsity rowing team altered the trajectory of his life and crystallized the determination and drive that have been the hallmarks of his legal career.

After his undergrad, and still a competitive rower, Dave headed out to British Columbia to train year-round. After a year in Vancouver, Dave set his sights on a seat on the UVic rowing team. The only snag was that he was not a UVic student. With a little ingenuity and his trademark determination, Dave found himself in law school. At law school, he quickly developed a good strategy: by registering only for classes with one hundred per cent finals, he ensured no class assignments—or even the requirement to attend class—would interfere with his practice and racing schedule.

Dave articled at Russell & DuMoulin but, shortly after being called in 1991, began his career at the Crown. As a young Crown, Dave built his advocacy skills under the mentorship of seasoned Crown in Vancouver. The lure of great skiing, paddling and good work at the Crown office in Kelowna soon drew Dave and his then-partner to the Okanagan. Dave quickly established a reputation as a fierce competitor both inside and outside of the courtroom. Dave’s signature style was fuelled perhaps by the 17 cups of coffee he customarily consumed before noon.

It was not long before Dave was handling the most serious files in the Kelowna office. By the time of his appointment, Dave had prosecuted dozens of murders and serious violent offences. Dave was a “Crown’s Crown”. He was a member of the Crown Counsel Association for many years and was part of the group who engaged in protracted negotiation with the government resulting in a 12-year deal that linked Crown salaries with Provincial Court judges’—something for which his new colleagues may wish to thank him.

Dave’s commitment to his work was second only to his commitment to his family. He coached his son and daughter through most of their years in community soccer, coached them both in cross-country skiing and biathlon, and spent many hours supporting and cheering on his daughter, an equestrian, in her years of show jumping. Dave even managed to bank enough time to spend a year travelling the world with his young family. As one of the original “bloggers”, Dave kept his colleagues updated on their travels, which included volunteer work in a turtle-rescue sanctuary in Costa Rica and an elephant reserve in Thailand.

Throughout his years with the Crown, and despite his heavy workload and family commitments, Dave found time to make fitness a priority. He ran, cycled, climbed, swam with the Kelowna Masters Swim Club, crosscountry skied and paddled throughout his years as a lawyer. Dave was instrumental in establishing Kelowna’s Outrigger Canoe Club. He was the team’s inaugural coach, paddling with them at the Howe Sound International Outrigger Iron Races in Gibsons and, more exotically, races from Catalina Island to the mainland and the famous Maui-Molokai race.

It was an injury during dryland cross-country ski training that evidenced Dave’s true grit: he caught an edge on his roller skis and went over an embankment. The result was a completely torn hamstring that required emergency surgery. Dave was in the middle of an armed robbery prelim, which he was determined—even without the impetus of Jordan—not to delay. After a few days out of court for surgery and recovery, Dave, unable to sit comfortably (or do anything comfortably), powered through the rest of the prelim on crutches with his leg tied up in a bright orange sling behind him.

Throughout his years in Kelowna, Dave has given freely of his time to mentor young Crown, supervise articling students, provide valuable advice to police and lecture at advocacy courses. Dave was a respected member of the bar. He was and is a loyal friend. We have no doubt that he and his partner, Faye, will enjoy this new adventure.

The Honourable Judge Timothy Hinkson

On November 18, 2022, Timothy (Tim) Hinkson was appointed as a judge of the Provincial Court of British Columbia, assigned to the Fraser Region.

Tim was born in Vancouver. Tim, along with his younger sisters, Stacey and Chelsea, were raised in the bucolic neighbourhood of Dunbar and attended Southlands Elementary School and Point Grey Secondary School. Tim’s parents also grew up on Vancouver’s west side. His mother, Judy, was a teacher before becoming a homemaker. His father, Chris, has been featured previously in this publication. From an early age, Tim’s parents impressed upon him the importance of doing well in school, treating everyone with respect, leading by example and taking joy in entertaining others. Judy passed away in 2007 but would have taken pride in Tim’s appointment. For his part, Chief Justice Hinkson said: “I am, I think, justifiably proud of each of my children. Tim’s appointment is just the most recent basis for my pride in him.”

Tim had varied interests in school, from English literature, to rugby, to art and photography. It will come as no surprise to those who know him that he made close friends in each of those groups. Tim was, and remains, affable and good natured. While his academics may have been eclipsed by his social and athletic pursuits, he was adept at all, and was admitted to the University of British Columbia after graduating valedictorian from Point Grey in 1997.

More importantly, particularly for young sisters Stacey and Chelsea, Tim was, and remains, a protective and idolized older sibling. Stacey and Chelsea both recall that Tim took his role as the eldest seriously growing up. He helped them with everything from school work to the trials and tribulations of childhood. Tim would drop everything when they asked him for help, and unfailingly provided advice and support. This remains the case today.

Tim began at UBC as a B.A. student in 1997, graduating in 2002. He majored in English literature and took several courses in women’s studies and gender studies. Those close to Tim know that he is a feminist and, to some degree, a contrarian. They would say it is no surprise Tim chose an academic focus in part to challenge his own perceptions.

As varied as his academic focus was at UBC, perhaps no one has ever had as varied part-time employment as Tim. He has stocked grocery store shelves and worked as a customs inspector, delivery driver, waste collector and cemetery labourer. True to form, Tim has yet to find any place where he has not been able to fit in, make friends and find more than a few good stories along the way.

Tim started law school at Dalhousie University in 2002. While it is reported that he briefly considered a career in writing, those who know Tim say that law was the natural progression for his varied interests, natural ability with people and problem-solving skills. At Dalhousie, Tim was immediately drawn to Halifax and the lifestyle of the Maritimes. Tragically, however, after his first year of law school, Tim’s mother became terminally ill. Because of who Tim is as a person and as a brother, he left Dalhousie and returned to Vancouver to be with his family, and to support his sisters. He remained in Vancouver, re-enrolling and graduating from law school at UBC in 2005.

Tim articled at Guild Yule LLP and was called to the bar in 2006. He felt the draw of the criminal bar and left shortly thereafter for a period as Crown counsel from 2006 to 2007, and as a criminal defence lawyer at Peck and Company from 2007 to 2009. In both instances, he was thrown into busy practices, which he met with enthusiasm. During his criminal law practice,

he perfected a relaxed form of panic that would see him through his career. However insurmountable Tim’s workload often was, he always managed to get it done, and to get it done well.

Tim continued his circuitous route back to Guild Yule in 2009, where he became a partner in 2014 and remained until his judicial appointment. His practice at Guild Yule focused on professional negligence and complex personal injury claims. Tim was active in the profession, serving as a board member and president of the Vancouver Bar Association and member and director of the Medical Legal Society, among others. He was a frequent presenter and writer and, more importantly for those who worked with him, a committed friend and mentor to all who sought his help, at Guild Yule and elsewhere.

Tim has made friends throughout his life, including with many clients who valued his character as much as his legal advice. He is self-deprecating and carries no pretenses about himself. He has the ability to find commonality with nearly everyone. That is not to say that these friendships are fleeting. His friends report that he is a loyal friend, always there to provide assistance. Tim brought the same approach to his role as a mentor. Tim’s task list and time recording, however pressing (and admittedly often pressing), were never more important than helping another lawyer through any problem they faced. There always seemed to be a line-up of colleagues outside his office, waiting for their turn.

For those who practised law with Tim, he was a barrister in every sense. He was always happiest in trial. He loved his role as an advocate. Tim’s conduct in a courtroom was calm, unassuming and highly effective. In recent years, he had notable success in a number of complex legal and medical malpractice cases before the British Columbia Supreme Court and the British Columbia Court of Appeal. He was consistently recognized as a leading civil litigator, including as Lawyer of the Year in Legal Malpractice Law by Best Lawyers Canada in 2022.

In 2010, Tim met his wife, Charlotte. Engaging the best of his advocacy skills, within a week Charlotte had been introduced to Tim’s family. Within a year they were married and had moved into a house in North Vancouver, where they live today with their children, Audrey (10) and Jasper (8). The house, a 1912 character house, remains both loved and loathed by Tim, who spent the first days of home ownership on a precariously placed ladder, removing tree limbs in the (mistaken) hope that this could prevent the resident racoons from entering their well-established den inside the attic. While the racoons have since moved on, the task list has not, and Tim’s DIY projects have occupied many weekends. While accounts of Tim’s skill in

this regard vary, by all accounts the house remains standing. This appears to have been Tim’s intended objective.

When not practising law or reluctantly restoring his house, Tim is the devoted father to Audrey and Jasper. Tim’s role as father is one that he clearly enjoys and finds fulfillment in. Tim puts Audrey and Jasper first. He is patient, to a fault. If either has a problem, he will drop everything to listen and to work through it, often at the expense of any (objectively) more pressing household tasks. Presently, he can be found on the sidelines of fields, gyms or pools across North Vancouver, watching his children’s activities. Adventure days with Audrey and Jasper, which have been said to incorporate Tim’s unconventional sense of fun, remain a family favourite.

In 2020, Tim’s family was added to when Charlotte and Tim (or, more accurately, Charlotte and an unsuspecting Tim) adopted a Boston Terrier, Jerry. Tim has always been excellent with animals, and may well have found career success as a dog trainer had he not been drawn to the law. But Jerry has yet to take to the outdoors. Or walks. Or any activity typically associated with dogs. It is safe to say that Tim’s love of dogs may have waned in recent years.

Tim has a meaningful and eclectic appreciation for music. He is also an ardent devotee of comedy, in all its forms, and in particular of stand-up comedy and live comedy shows. Only on rare occasions will Tim not be able to find a sketch comedy segment or YouTube video that he is not persuaded is entirely applicable to the particular problem, case or general conversation he is having. He has a good sense of humour, and values a good sense of humour in others. He loves to laugh. This has served him well in his legal career.

In Tim’s new role as a judge of the Provincial Court of British Columbia, parties can expect him to be intelligent, but unassuming. He will approach each case with an open mind, listen to the parties patiently, consider issues thoughtfully and employ a good sense of fairness in his decisions. He will appreciate the systemic obstacles that parties face within the judicial system and society at large. He will promote access to justice and respect of all within the courtroom. The province of British Columbia is well served by his appointment. Overall, as one close friend reported, Tim is “just a really good person.”

The Honourable Judge Ellen (Heidi) Wainwright Hughes

Before her appointment to the Provincial Court of British Columbia in February 2022, Judge Ellen (Heidi) Wainwright Hughes—her friends call her Heidi—was a highly respected senior civil litigator.

Heidi grew up in a small town north of Boston, Massachusetts, the youngest of four children. Even then an outdoor enthusiast, Heidi enjoyed cycling, cross-country skiing, and dog training as a member of 4-H, all of which became life-long interests.

She is a graduate of Wellesley College and the University of Virginia Law School.

Perhaps inspired by her father and brothers (lawyers all) and their stories about law and life, Heidi gravitated toward litigation. Before law school, Heidi tested her ability to think on her feet by taking an improvisation class. Apparently, the class helped because Heidi was known for her exceptional oral advocacy skills.

Once in law school, whether by fate or coincidence, the first case she studied in criminal law was an appeal to the U.S. Supreme Court from a decision by her father, who was then the U.S. army’s senior trial judge and later assistant dean of Columbia Law School. She credits her family as the source of her core values of public service, humility and curiosity.

While in law school, Heidi served as editor of the Virginia Journal of International Law, participated in the university’s criminal practice clinic and worked as a summer associate at Freshfields Bruckhaus Deringer in London.

Also while in law school, Heidi married John Hughes from Vancouver.

After graduating from law school, Heidi practised commercial litigation with a leading firm in Boston, whose clients included the Boston Red Sox and the Boston Globe. The firm was generous with its pro bono time, allowing her two leaves, first to practise housing law at Greater Boston Legal Services and second to prosecute in a nearby district attorney’s office.

Heidi and John then moved to Vancouver. Captured by the foreign-trained lawyer rules of the Law Society, Heidi articled with Bull, Housser & Tupper LLP (now Norton Rose Fulbright) and then stayed on as an associate.

In 1997, Heidi began her career in public service with the Legal Services Branch of the Ministry of Attorney General, where she practised primarily

in the areas of administrative, constitutional and human rights law. As counsel for the province, Heidi acted on a wide range of cases and appeared at all levels of court, from the Provincial Court to the Supreme Court of Canada as well as tribunals. Her most recent cases before her appointment were before the B.C. Human Rights Tribunal. Her files often required her to travel throughout British Columbia. These travels further strengthened her love for her chosen home.

Throughout her career, Heidi worked on high-profile cases, including the Ivan Henry case for Charter damages for wrongful conviction and the Cambie Surgeries case in which the plaintiffs sought the right to private health care under the Charter. While at the Legal Services Branch, she did not seek out high-profile cases, but rather took on more complex and challenging cases out of a sense of responsibility.

Heidi always brought an open mind to a case and ensured her arguments were thoughtful, considered and well-prepared. She took the time to fully understand the client’s business or program area. Throughout her career, Heidi demonstrated an appetite for understanding new areas of the law.

A senior colleague reminisced fondly about meetings with Heidi on various files, over her use of intricate Venn and other diagrams in order to selftest her understanding of the issues and to be sure she “not only saw the forest and the trees, but the pine beetles in the trees”. As her colleague recounted, “If the discussion was about her file, she considered the facts and strategy from every angle. If discussions were about your chosen matter, she peppered you with questions, so that she could fully appreciate the situation, while she actively listened and helped guide you to appropriate answers. All those discussions made for interesting intellectual wrangling, and never did they end without at least a half dozen laughs, and Heidi’s kind and sincere appreciation for time well spent.”

Another senior litigation colleague describes Heidi as dedicated, professional, conscientious and ethical: “I consulted with her whenever I needed particular expertise in constitutional and administrative law. She was exceptionally gifted in wrestling with documents and historical witnesses. She was tenacious in pinning the factual issues to the mat, when the law is so often uncertain and evolving. She was fair and reasonable in her approach to cases and was able to deal with difficult issues and difficult opposing counsel while maintaining civil relationships with them. She was a great team player.”

Opposing counsel knew Heidi as a formidable opponent who would vigorously represent the province’s interests. Just as important, however, was that she was considered reasonable and “even a fun person” to deal with—

which is something we do not hear enough in the civil litigation bar. As one opposing counsel remarked, Heidi was the personification of the line “Do as adversaries do in law—strive mightily, but eat and drink as friends.”1

A generous and approachable mentor for younger counsel, Heidi took time to explain the legal strategy underlying cases, acted as a perceptive sounding board, provided help where necessary and actively sought opportunities to support and encourage younger counsel. As one young lawyer said: “She was a great mentor and from her I learned what it was to be a good lawyer.”

A frequent presenter at CLEs, Heidi also served as co-chair of the Legal Services Branch Professional Development Committee. Heidi was dedicated to fostering knowledge sharing and skills development within the Legal Services Branch as well as in the profession generally. Heidi’s presentations were always informative and never dry. She fondly recalls feedback from an attendee at one of the CLEs— Heidi could try stand-up comedy if the law thing didn’t work out.

She served on the executive of CBABC’s Human Rights Law Subsection from 2019 to her appointment as a judge in 2022. Heidi appreciated the enthusiasm and collegiality of the lawyers in the human rights bar.

Heidi was known by her colleagues for her generosity, her kindness and her profound thoughtfulness—such as gifting house cleaning when a colleague had a baby, hosting a bridal shower, gifting fitness training to a friend recovering from cancer treatments and arranging welcoming gifts for the foster children of a colleague.

As a dedicated athlete and cyclist, Heidi brought the same habits of preparation, endurance and focus to her work life. She was a member of Vancouver’s first all-women’s cycling club; was on the winning women’s team in 2014 of the Gran Fondo from Vancouver to Whistler; and is currently a gravel and road cyclist with a local cycling club. She is an avid crosscountry skier and proud of her contributions as a member of the Nordic Racer Para-Nordic Committee. During winter 2019–2020, she was particularly delighted to ski with a woman training for the Special Olympics.

Heidi is happily married to John, an author (House of Tears and Dead in Tangier) and retired educator, and the very proud mother of son Tristan, currently in graduate school. Heidi and John love to travel and to get off the beaten path (sometimes unintentionally) whether in British Columbia or abroad, combining their love for cycling with their love of history, food and wine.

ENDNOTE

1.William Shakespeare, The Taming of the Shrew, Act 1, Scene 2.

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LETTERS TO THE EDITOR

By R.C. Tino Bella*

Dear Editor,

Re: Bruce Woolley, K.C., “The Solicitors’ Legal Opinions Committee (Fondly Known as ‘SLOC’)” (2023) 81 Advocate

209, and various other matters

As usual I read with great interest the latest Advocate. Some articles I read with great interest and some I skim. Often I skim an article to see if it may be interesting generally or with respect to my specific area of law. As I know you know I have primarily been involved in the practice of what is generally referred to as criminal law. I prefer to describe my practice as (to paraphrase the late Larry Hill) ensuring the rights and appropriate liberties of His Majesty’s subjects. Often the “Crown” has alleged that I am overly enthusiastic in ensuring the rights and liberties of my clients, but that is a cross I will have to bear. I am writing

today, however, in regards to the very well written article in the most recent Advocate by Bruce Woolley, K.C., “The Solicitors’ Legal Opinions Committee (Fondly Known as ‘SLOC’)”. It seems that lawyers, both solicitors and litigators, are attracted to acronyms. I noticed in the great article [“On the Front Cover” (2023) 81 Advocate 177] about Chris Harvey, Q.C., a noted litigator, that he was a founding member of SSCC [the Shadowy Secret Central Committee]. That aside I am writing this letter hoping that you can send it on in some way as a recommendation that all litigators should read Mr. Woolley’s article. Especially those litigators who are having some second thoughts as to whether they wish to continue in litigation and are entertaining thoughts of becoming a solicitor. Those, I strongly recommend read Mr. Woolley’s article.

Having read that article I have no doubt that all litigators who do so will finish the article feeling extremely glad that they are litigators and not solicitors. Solicitors have it way too hard.

I note in the latest Advocate that there are no Letters to the Editor and, even more surprising, no Grumbles. I acknowledge that with the demise of Gerald Lecovin, Q.C., Grumbles may not be as plentiful or as entertaining, but still, I feel that lawyers should have a space in which to express our “grumbles”. Perhaps this latest edition was simply an anomaly and no lawyers had anything to grumble about or at least worth grumbling about. In any event this email to you is not a grumble, while perhaps sort of, but more recommendation for all litigators to read Mr. Woolley’s article.

Regards, Glen Orris, K.C.

Parliament. This comparison is irrelevant. The rights and freedoms in the Charter belong to all Canadians, not to Parliament or to the provincial legislative assemblies who are merely their custodians.

I have therefore considered it necessary to provide the following corrigendum, as in the bolded passages, for this section of the article:

THE UNCONSTITUTIONALITY OF NOTWITHSTANDING

Section 31 of the Constitution Act, 1982 provides: “Nothing in this Charter extends the legislative powers of any body or authority”. Thus, Parliament and the provincial legislative assemblies are left with the legislative powers set out in the Constitution Act, 1867, which for the legislatures are set out in s. 92 and for Parliament in s. 91. As reviewed earlier, the constitutionality of enactments from these assemblies was maintained with the assistance of the disallowance power set out in ss. 50 and 90 of the Constitution Act, 1867, and since the 1940s by Canada’s superior courts.

Dear Editor,

Re: Darrell W. Roberts, K.C., “Disallowance Is the Paladin of the Rights and Freedoms in the Canadian Charter ” (2023) 81 Advocate 197

In the passage of the article headed “The Unconstitutionality of Notwithstanding” on page 204, a comparison is made between the rights and freedoms in the Charter and the broad legislative powers of

However, the Constitution Act, 1982 substantially broadens the constitutional law of Canada by embedding the Canadian Charter of Rights and Freedoms guaranteed to all Canadians subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 32 provides that the Charter applies to the Parliament of Canada and to all legislatures and governments of each province, and can only be changed or withdrawn by the difficult amending procedure set out in s. 38 of the Constitution Act, 1982.

But yet, there in s. 33 of the Constitution Act, 1982 is the sword of

notwithstanding allowing the provincial legislatures and Parliament itself, custodians of the rights and freedoms of Canadians in the Charter, to sever those rights by an enactment and the simple filing of a declaration and thereby, by reason of the Supreme Court of Canada decision in the Ford case earlier considered, bar the courts from any review and suppression of such offending enactment.

Thank you for permitting this correction by way of a letter.

Very best regards, Darrell W.

Dear Editor,

Re: “Entre Nous”

Roberts, K.C.

(2023) 81 Advocate 9

Thank you for this issue’s Entre Nous. It is a welcome respite from what seems to be consistent justifications for intolerable behaviour.

As for Mary Ellen Turpel-Lafond: When the rose petals were being strewn and the accolades pouring in, where were those who knew her in the past? Her family, friends, childhood classmates? Why did no one stand up and scream “J’accuse!”?

Steven Cope

Fort St. John and Dawson Creek

didates for admission to any law society, anywhere, would cheat on their bar admission exams. Nor did I think for a moment that it might be necessary to check the stated credentials of a highly respected member of the bar, let alone a former member of the judiciary. When one cheats, it means that such person believes that to do something correctly, or properly, is “too difficult, too hard”, or that one’s chances of success are very restricted given the number of spaces or positions available to candidates or applicants. Or the person believes that the process is “unfair”, and that they must do anything possible to succeed.

Perhaps the discovery of cheating by the ones who hope to become lawyers in Ontario should not have surprised me, given the “pay for university admission” frauds in the U.S.A., which included at least one prominent B.C. parent. The even greater harm stems from the fact that the cheating did not originate from the student, but from their parents. What pathetic role models. Their “golden parachute” parenting has not been of any assistance to their children. They have done them lasting irreparable harm.

Dear Editor,

Re: “Entre Nous”

(2023) 81 Advocate 9

During my 40-year career at the bar, I never imagined that 147 can-

It is trite, but unfortunately necessary, to remind all members of the bar of our cardinal obligation to the bar, the courts and society: “our word is our bond”. Such a simple

statement is often overlooked for personal and professional gain. Our profession and the courts demand the highest level of integrity. Many members of our profession have paid the price for forgetting or ignoring that obligation. Failing to abide by undertakings (no matter how trivial they might be considered), misleading the court by not disclosing relevant facts or not bringing to the court’s attention case law that does not favour the lawyer’s client, not disclosing to opposing counsel obvious mistakes, taking advantage of them, failing to keep in confidence communications received in error from other counsel, stealing from clients, inflating billing sheets to meet billing targets, enabling or assisting witnesses to lie in court or on affidavits, misstating facts in order to obtain adjournments of court dates. In many situations, it is very easy and perhaps tempting to overlook the ethical obligations. A simple rule is “don’t do it”, even if the transgression seems minor. An example is not refunding a small balance of retainer funds held in trust, charging the balance to “photocopying” or to “office essentials” not logged as such. A balance of $1.00 remaining in trust is not “your money”. It is the client’s money.

In the case of the subject of the latter part of the article, it is not only pride that went before their

fall. It is outright dishonesty, lying, fraud. What a sad ending to an illustrious career. Going forward, in situations where previously one would not think to question or verify one’s stated cultural or educational background, professional accolades or achievements, application processes will take much more time and will require far more inquiry and investigation. An article about a notorious con man states: “he [Frédéric Bourdin] acknowledged what any con man knows but rarely admits: it is not that hard to fool people. People have basic expectations of others’ behaviour and are rarely on guard for someone to subvert them … Bourdin, who generally tapped into a mark’s sense of goodness rather than some darker urge, says, ‘Nobody expects a seemingly vulnerable child to be lying’”.1

The subjects of the Entre Nous article have not only harmed themselves. They have harmed countless others whose words are no longer going to be taken at face value, as well as institutions that had no reason to question their bona fides.

Respectfully, Donald Kawano, K.C. (retired) Cranbrook

ENDNOTE

1. David Gran, “The Chameleon: The Many Lives of Frédéric Bourdin”, The New Yorker (4–11 August 2018).

GRUMBLES

By R.C. Tino Bella*

Dear Editor, Re: Michael Donison, “Letter to the Editor”

(2023) Advocate 129

I don’t think Edward VI, who died in 1553 at the age of 15, succeeded George V (p. 129). His reign was only slightly longer than that of his 20th-century namesake.

John Edmond (who sadly missed life in five regnal eras by fewer than 17 months)

Ottawa

Dear Editor, Re: Michael Donison, “Letter to the Editor”

(2023) Advocate 129

If, as described by Michael Donison in his letter published in your January 2023 edition, Mr. David Roberts’s second monarch was indeed “His Majesty King Edward VI”, then David must be even older

than we thought, and very well preserved to boot. Moreover, King Charles III would be his 24th monarch by my reckoning (including Lady Jane Grey, and counting both William III and Mary II).

Sincerely,

Justice Christopher Grauer

Vancouver

While Mr. Donison did indeed type “King Edward VI”, it was the editor, the assistant editor and the copy editor who failed to change it to “King Edward VII” and therefore we either owe Mr. Donison an apology, or a reward to Mr. Edmond and Justice Grauer for spotting the mistake. As for David Roberts’s age, he certainly looks a lot younger than he is. – Ed.

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

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The office is centrally located with reasonable rent and the seller presently has an office sharing arrangement with another lawyer. The seller is prepared to assist the buyer with a transition plan that ensures client retention.

OKANAGAN VALLEY – WILLS/ESTATES AND CORPORATE PRACTICE

Operating in the North Okanagan Valley since 1995, this practice is unique in its high-end mix of Wills/Estates and Corporate Commercial law. There is a significant Wills bank and approximately 250 corporate clientele.

“Further details of this practice are available at geigerlegal.com”

ESTABLISHED SOLICITOR’S PRACTICE – WEST KOOTENAY REGION

This busy established practice is almost equally divided between Real Estate and Wills/Estates with about 5% corporate commercial work. There is a significant Wills Bank and Estate Administration work is in a growth phase. The area is underserviced in all areas of law including family and litigation, such that there is almost unlimited expansion potential. The right buyer would enjoy living in a smaller, affordable community with a friendly, eclectic vibe and easy access to adventure in the surrounding mountains, lakes and rivers.

LEGAL ANECDOTES AND MISCELLANEA

By Ludmila B. Herbst, K.C.*

HELEN KINNEAR: THE BRITISH EMPIRE’S FIRST “LADY SILK”

Last year, we wrote about the British Empire’s first Black King’s Counsel: Delos Rogest Davies, who practised in Ontario and was appointed as King’s Counsel in 1910.1 This year, we turn to the first woman appointed as King’s Counsel in the British Empire: another intrepid Ontarian, Helen Kinnear.2

Helen was born in May 1894 in Cayuga, Ontario, on the banks of the Grand River that runs through the Niagara Peninsula. It is Haldimand County’s county seat, and the location of its courthouse. “Cayuga” is the name of one of the Six Nations of the Grand River First Nation.

Helen was the youngest of the four children of Louis Kinnear and Elizabeth Thompson. Louis taught classics until 1899, when he enrolled at Osgoode Hall law school. He became a member of the bar in 1902 and set up his practice in Port Colborne, joined there by his family. Port Colborne, in Welland County, is located on the shore of Lake Erie, at the southern end of the Welland Canal that allows ships to pass to and from Lake Ontario. In 1918, it also became home to Inco’s base metal refinery.

After graduating from the University of Toronto with an honours bachelor of arts degree (in English and history), Helen attended Osgoode Hall law school, again graduating with honours. She packed into what was repeatedly described as a five-foot-four frame a “quick mind”, a “keen wit”, “lots of laughter”3 and a “generous” and “self-effacing” nature.4

Helen commented that “[t]here is no reason why a woman should not succeed in the legal profession – provided she has a logical mind and a capacity for hard work”.5 That hard work could at least minimize the risk of the failure for which women could be especially criticized: she observed that “[i]f a man proves a failure he is accepted as that, but should a woman

* Ludmila B. Herbst, K.C., is the assistant editor of the Advocate. She thanks Emma O’Leary, who interned at Farris LLP in the summer of 2022, for her research assistance.

fail in her chosen profession, everyone says it serves her right … she should have been home pushing a carpet sweeper”.6 She was the first secretary and a charter member of the Women’s Law Association of Ontario, which was established in 1919.

Helen was called to the bar in 1920 and joined her father’s firm, which immediately became Kinnear & Kinnear. Helen was likely the first woman to practise law on the Niagara Peninsula. She later commended to law students the prospect of practising in a “growing, industrial town … pulsing with life and offering a challenge to youth outside a province’s largest city”; she cited the satisfaction of playing a role in the life of the community and, if the town happened to be the lawyer’s hometown, of being where the lawyer already had “a personality … which it may take … years to establish elsewhere”. She noted:

There is a tendency, noticeable particularly among native Torontonians, to assume that there is only one place in which to practise, and that assumption is usually coupled with a subconscious conviction that the field of endeavour is more restricted and requirements are not so high beyond the City’s walls …. Toronto is only a few hundred small municipalities rolled into one and tied together by the Toronto Transportation Commission. After allowing for its transportation problems, its citizens are subject to the same hopes and fears and have the same kind of problems as the citizens of any other progressive community in the Province. Toronto ensures anonymity for many a lawyer who might have made a name for himself elsewhere.7

Helen noted the importance especially outside the largest cities of “winning and keeping public confidence” by acting ethically and with integrity, by doing work “carefully and properly”, and being both “prompt and correct in money matters”.8

Helen practised in the field of litigation, which was particularly unusual for a woman at the time, but very much in keeping with her philosophical views. She noted9 that “[i]t is important to appear in Court as early and as often as you can to guard against that inferiority with regard to Court practice which dogs some solicitors throughout their whole careers and takes their best clients elsewhere when they have important issues at stake”. Correspondingly, she noted that “[e]arly in your practice, you should be glad of the opportunity to appear in Court whether it is to your financial advantage or not”. Coupled with that, however, was the importance of warning clients of the risk of an adverse court decision and potential expense: “[t]o plunge a client into litigation which results in unexpected heavy costs to him is to lose your client and weaken public confidence in you” whereas “[t]o settle a claim to your client’s satisfaction without suit wins you a client for life. That applies wherever you practise.”

Helen further recommended that lawyers join an established firm (and obtain a “guiding hand”) at the outset of their practice, as she had. However, she offered solace to those who “must launch out” for themselves, noting that even “errors, if taken to heart and properly analyzed, will stand you in good stead”. Indeed “the most eminent lawyers find something new in the practice of law every day of their lives”: “the open and inquiring mind is the corner-stone of their eminence”.10

Helen soon did have to “launch out” for herself when her father died suddenly in 1924. She went into partnership with another lawyer at least once, but for the most part during her career as counsel she practised on her own.

Helen was a keen motorist, and for some period in the early 1930s, she, her sister Jennie, their mother and a friend travelled through the United States by car; later in life, she and Jennie continued to take car trips through Canada in the summer. By the mid-1930s, Helen had also travelled through much of Europe.

During her U.S. travels, she made various contacts among women lawyers. In 1944, she became the first honorary member of the Alpha Mu Chapter, Kappa Beta Pi legal sorority, and in 1945, she was made an honorary life member of the National Association of Women Lawyers (USA). In the United States, she attended trials, visited penitentiaries and studied the legal system more generally.

By 1933, Helen had resumed her law practice in Port Colborne, with Jennie as office manager. At that point, Helen was still “Welland County’s only woman Barrister”.11 The office was near the home the family had acquired in 1904: Kinnear House, where at this point Helen and Jennie lived together. A columnist described that residence as “a spacious, rambling residence, surrounded by lawns and gardens”. The columnist attributed to proximity to Niagara Falls (just over 30 kilometres from Port Colborne) the fact that Helen was able to equip the house “with every conceivable electrical time-saving device, even [a] cake mixer and dish washer”.12

In December 1934, Helen was appointed by the Ontario government as King’s Counsel, reportedly the first woman appointed as such in the British Empire. The Canadian Bar Review noted that “[w]omen have from time immemorial worn silk but none have ever before our time worn the silk of the ‘K.C.’”, which the publication hastened to add it was confident Helen would do “with distinction”.13 A national legal newspaper noted she was “believed to be the first lady silk in the Empire”.14 Shortly thereafter followed another distinction: Helen was reportedly the first woman to argue before the Supreme Court of Canada, in March 1935.

Alongside her legal practice, Helen was involved in politics. The Kinnear family was deeply Liberal—“Liberal by birth and Liberal by conviction”,

Helen said of herself. In 1851, her Kinnear-side grandfather had nominated William Lyon Mackenzie as the Liberal candidate for Haldimand County in the Parliament of Upper Canada. Her father secured the Liberal nomination for the federal riding of Welland in 1911, though did not win in the election. Helen herself became the recording secretary of the Ontario Women’s Liberal Association in 1922, then in 1925 became president of the Hamilton District Women’s Liberal Association. Her appointment as King’s Counsel was during the tenure of a Liberal provincial government, and on hearing the news, she said she hoped it was based on merit rather than political influence.

In the latter half of the 1930s, she became president of the Welland County Liberal Association (the first woman to head a county Liberal association). Despite her Liberal loyalties, she had a staunchly Tory secretary at work, and the two avoided talking about politics.

After two failed attempts to secure a Liberal nomination (one provincially and one federally), Helen was nominated, in October 1941, to run in a by-election in the federal riding of Welland, having urged delegates not to allow the fact she was a woman to influence their vote. However, with Canada at war, she decided to step aside before the by-election was held, in favour of the newly appointed federal Minister of Labour, who needed a riding in which to run. Her efforts to do so were at least initially resisted by the executive of the county riding association, which did not share her view of the national interest her withdrawal would supposedly serve. She was later quoted as saying this was a “hard decision” for her. Indeed almost a decade later, she observed the continued lack of women candidates and pointed out that “[a]ll that women in politics have done in the past is work to get men into parliament”.15

In 1943, Helen was appointed as a County Court judge, with Haldimand as her home county. There is some speculation that this was a trade-off for her withdrawal as a Liberal election candidate,16 though if so, judicial status came at the cost of active engagement in the politics she loved.17 She moved back to Cayuga, the Haldimand county seat, from Port Colborne, living in a house called the Rockery within a shady walk of the courthouse. At that time she was also named as a local judge of the High Court of Justice for Ontario, a local master of the Supreme Court of Ontario, and a Surrogate Court18 judge for the County of Haldimand. These were federal appointments, and she is believed to be the first federally appointed woman judge in Canada.19 Helen later described this as “more than a personal achievement” and as a “victory” for women.

Both in subject matter and geographic scope, her work as a judge was wide-ranging. As she noted in her comprehensive two-part article on the

County Court that was published in the Canadian Bar Review in 1954, “[s]o wide is the scope of a county judge’s jurisdiction in all his different capacities that he may well be described as the Jack of all trades in the administration of justice in Ontario”.20 She noted as well that judges had to be “on call” to help in busier counties, and by the time of writing, she had presided at some point in each of the counties comprising County Court District No. 1 (the Niagara Peninsula). For almost two years she had to travel almost 65 kilometres once per week to sit in Welland County.

Helen’s judgments were described as “models of clarity in the description of facts and analysis of applicable law”.21 Various of them appear in the Ontario Weekly Notes. Among her last judgments was one affirmed by a majority of the Supreme Court of Canada, which referred to her “detailed and very carefully considered reasons” and “rather searching and astute investigation” of the history of the relevant legislation.22

Among Helen’s areas of keen interest was juvenile law reform, and in 1946 she became the honorary president of the Haldimand Children’s Aid Society. In 1947, she was appointed as a judge of the Juvenile Court for the County of Haldimand. She recognized economic inequality and prejudice (“[o]stensibly the door of opportunity is open to all children. Ostensibly”23) as being among the sources of delinquency. She advocated for the use of probation where possible, though required delinquents to promise to attend Sunday school or church every Sunday, so that they would at least subconsciously absorb some lessons about right and wrong. In her favourable 1951 review of a text on juvenile delinquency, she wrote that although there had been progress, “the public generally, which is the final authority in such matters, has not yet learned the lesson taught by the authors that the juvenile delinquent is the potential adult criminal and a product of our society for which we must bear the responsibility, a burden that we cannot discharge merely by following mediaeval methods of punishment”.24

Helen also had perceptive insights on family law, given she had “settled more than [her] fair share of family troubles”. She described those troubles as “economic rather than social. When she marries, the woman gives up her income and her economic independence. That’s the root of a great deal of domestic strife.”25

Reflecting both the above subject areas, from 1952 to 1954 she was the founding president of the Juvenile and Family Court Judges Association of Ontario.

In March 1954, alongside then Chief Justice McRuer of the High Court of Ontario, she was appointed to royal commissions on the defence of insanity (as it was then known) and the law on criminal sexual psychopaths, with

hearings in cities across Canada. In 1959, she was appointed provincially to the Minister’s Advisory Council on the Treatment of the Offender. She was the first woman awarded a medal from the John Howard Society of Ontario, for her distinguished humanitarian service, in 1965.

Helen also reflected on whether the judicial system as a whole could be improved. In her 1954 article for the Canadian Bar Review, she explored issues that remain very familiar, such as access to justice, delay, cost and legal aid (and the potential introduction of a public defender system). Asked what she thought of women becoming eligible (in 1952) to sit on juries in Ontario, she responded: “Why not? I had to pick out the names of men for jury duty for nine years. I got a bit tired of it.” In an interview more than a decade after she became a judge, Helen noted that by that time, she was “more or less taken for granted by the people who appeared in her court”, and it was “only when I go abroad that I’m treated like Exhibit A”.26

Helen maintained strong connections with the University of Toronto and served on its senate from 1944 to 1952. She received an honorary doctor of laws degree from that university in 1953.

During her years on the bench, she continued to be described as a “gracious hostess” with interests including entertaining, reading, gardening, motoring and “taking moving pictures”. She had concerns about the adequacy of judicial compensation in part so that judges could afford to live in the dignity that befitted their office and have funds to support charitable causes.

For health reasons, Helen retired from the bench in 1962 or so. She and Jennie moved back to Port Colborne and bought a new home there, though she regularly attended conferences and other events in Toronto. Jennie died in 1967 and Helen in 1970.

ENDNOTES

1.Ludmila B Herbst, KC, “Legal Anecdotes” (2022) 80 Advocate 291.

2.This column is based on a variety of helpful sources, including, apart from those cited in other endnotes, Deidré Rowe Brown, “Helen Kinnear”, Law Society of Ontario, online: <lso.ca/about-lso/osgoode-halland-ontario-legal-heritage/exhibitions-and-virtualmuseum/historical-vignettes/people/helen-kinnear>; “Helen Kinnear”, Wikipedia, online: <en.wikipedia. org/wiki/Helen_Kinnear>; Marie Corbett & Doris Corbett, “Helen Kinnear (1894-1970)”, in Rebecca Mae Salokar & Mary L Vocansek, eds, Women in Law: A Bio-Bibliographical Sourcebook (Westport, Connecticut and London: Greenwood Press, 1996) at 129–135; Julie Soloway & Emma Costante, Leading the Way: Canadian Women in the Law (Toronto: LexisNexis Canada, 2015); “First Woman K.C. Is Congratulated”, The Globe (22 December 1934) 4;

“Woman K.C. Nominated as Liberal Candidate”, The Globe and Mail (27 October 1941) 13; “Refused Permission to Resign Candidacy”, The Globe and Mail (24 December 1941) 9; “Sorority to Honor Judge Kinnear”, The Globe and Mail (20 April 1944) 9; “Judge Helen Kinnear, 1947-8”, as found in <gilliandr.wordpress.com/tag/helen-alicekinnear/>, citing “National Reference book on Canadian Personalities with other General Information for Library, Newspaper, Educational and Individual Use, eighth edition, 1947-1948, Canadian Newspaper Service, H Harrison”; “Uncomfortable Court Clothing Annoys Judge Helen Kinnear”, The Globe and Mail (19 April 1948) 14; “First Woman Judge Enjoys Wide Respect”, The Globe and Mail (15 November 1956) 19; “Woman Judge Is Retiring”, The Globe and Mail (21 September 1962) 12; “Helen Kinnear: County Court Judge Commonwealth

First”, The Globe and Mail (27 April 1970) 12; Mary Jane Mossman, “Telling the Stories of Women in Law” (2014) 26 Can J Women & L 451.

3. Elsa Jenkins, “Hi, Judge!” The Chatelaine (May 1949) 14.

4. “Helen A. Kinnear ’20 (1894-1970)”, online: <digital commons.osgoode.yorku.ca/catalysts/17/>.

5. “Women Successful Lawyers, Says Judge Helen Kinnear”, The Globe and Mail (2 September 1954) [“Women Successful Lawyers”].

6. Jenkins, supra note 3. The author called the quoted sentiment “the superior-male bogey”.

7. The Honourable Helen Kinnear, “Establishing a Practice” (1946) 4 Sch L Rev 1.

8. Ibid

9. The references in this paragraph are to ibid

10. Ibid

11. “Notes from the Capital and the Provinces” (1932) 2 Fortnightly LJ 120 at 121.

12. “Canada’s First Woman K.C.”, The Times of India (30 April 1935) 15.

13. “Current Events” (1935) 32 Can Bar Rev 125.

14. “Ontario, New Brunswick, Manitoba Appoint Hundred King’s Counsel” (1935) 5 Bench & Bar: National Legal Newspaper 1. The next women King’s Counsel may also have been in Ontario: Margaret Hyndman, in 1937, and Vera Parsons, in 1941. The first of their own “lady silks” were appointed in Scotland in 1948 and England in 1949.

15. Jenkins, supra note 3.

16. Mary Jane Mossman, “Becoming the First Women Judges in Ontario: Women Lawyers, Gender and the Politics of Judicial Appointment”, in Ulrike Schultz and Gisela Shaw, eds, Gender and Judging (Oxford and Portland, Oregon: Hart, 2013) 51 at 63, 65.

17. The Honourable Helen Kinnear, “The Country Judge in Ontario” (part 2) (1954) 32 Can Bar Rev 127 at 145–46. Among the “precious rights” that Helen described a judge as giving up were involvement in politics: “[s]o carefully are his independence and his detached approach to judicial problems protected that he is required to step completely out of politics on his appointment and to refrain from expressing any political opinion afterwards”. Perhaps mindful of what she had seen in her travels through the United States, though, she was thankful Canada did not use “the elective system” for selecting judges, “with its inevitable risks”.

18. This court dealt, as she noted in her two-part Canadian Bar Review article, with the estates of deceased persons and matters related to the guardianship and custody of infants.

19. Emily Murphy appears to have been the first woman appointed to a “judicial post” in Canada, as police magistrate in Edmonton in 1916: Cameron Harvey, “Women in Law in Canada” (1970) 4 Man LJ 9.

20. The Honourable Helen Kinnear, “The County Judge in Ontario” (part 1) (1954) 32 Can Bar Rev 21 at 24.

21. Harvey, supra note 19 at 134.

22. Wilkes v Interlake Tissue Mills Co Limited, [1970] SCR 441 at 444, 446.

23. Jenkins, supra note 3.

24. The Honourable Helen Kinnear, review of “Unraveling Juvenile Delinquency by Sheldon and Eleanor Gluck. New York: The Commonwealth Fund. 1950” (1951) 29 Can Bar Rev 702 at 704.

25. Jenkins, supra note 3.

26. “Women Successful Lawyers”, supra note 5.

FROM OUR BACK PAGES

By D. Michael Bain, K.C.*‡

Mr. E.L. Looney of the Texas bar has in a recent number of the Texas Bar Journal stated neatly the question vital to lawyers and other professional men for revision of income tax laws by which they may in the days of high productivity provide for their lessening returns. Mr. Looney says:

Nearly a century ago Karl Marx urged that all wealth be redistributed by banning all inheritance from one generation to another and by a progressive income tax which would be confiscatory in the middle and upper brackets.

The plight of the lawyer today affords an apt illustration of the effects of such unrestrained federal borrowing and resultant taxation. A generation or more ago it was not uncommon for lawyers, by dint of their ability and hard work, to become reasonably wealthy from the practice of their profession. Today, a lawyer, if he has any reasonable expectation of acquiring a competence to provide for his family, must do so in extra-curricular activities outside his profession wherein he can avail himself of the lesser taxes on capital gains or in which he is given an allowance for depletion.

The American Bar Association and our own Texas Bar, as well as other professional groups, are urging that the professional man whose earnings depend alone upon his ability to render services, be given a depletion allowance, for it is as certain as death itself that a lawyer’s ability to earn depletes as certainly as mineral resources and depreciates as surely as does any manufacturing plant. At best this proposal would only be a partial solution of the problem.

* Reprinted from (1954) 12 Advocate 140.

The only complete solution lies in a revision of our income and inheritance tax laws with an elimination of what Karl Marx referred to as “the germ of automatic progression.”

The very foundation of the free enterprise economy of our capitalistic system is in jeopardy. The “take” of the government from the earnings of the citizen leaves too little for the person whose efforts produced them.

Chief Justice Marshall, one hundred and thirty-five years ago, when he wrote the opinion in the celebrated case of McCulloch vs. Maryland, warned that “the power to tax involves the power to destroy.”

—E.M.

RAJ MOMRA KYLE MCEL

BENCH AND BAR

or as it is not one swallow or one fine day that makes a spring, so it is not one day or a short time that makes a man blessed and happy”, noted Aristotle in the Nicomachean Ethics. That may be so, but the invocation of a Greek philosopher or two often seems to make a judge’s day, and we hope makes your time reading this column a happy occasion as well.

Baker Newby in Abbotsford sees the addition of Pamela Bakshi, previously at Krentz & Hedman. Isaac E. Shieh is now at 606 Essex Chambers, leaving Lawson Lundell. Betony Rowland moves from BKS Law to join Legacy Tax + Trust Lawyers. Formerly with MacLean Law, Anastasiya Sadovska lands at Clark Wilson. Affinity Law Group turns off the lights and its lawyers Darcy Wray, Ari M. Shack, Power Chen and Jesse Wray join the Vancouver office of Miller Thomson. Hamish D. Gray joins Harper Grey from Powell, Gray & Kim. Kit S. Perrick jumps from Kerfoot Burrows to Burns Fitzpatrick. Peter J. Haley moves to the Vancouver office of Lawson Lundell from Farris. Maxim (Max) Rudakov throws in the chips at Lawson Lundell to take up an in-house post at Gateway Casinos. Curtis Basham moves from Dentons to join Gudmundseth Mickelson. Branch MacMaster bids farewell to Rylee Hunter, who moves to join Clark Wilson. Sara Tebbutt Albert launches Abbotsford’s newest law firm, Albert & Co. Law, moving from RDM Lawyers to do so. Keri L. Bennett is now with DLA Piper’s Vancouver office. She was previously at Roper Greyell. Andrea J. Piercy moves from Hamilton Duncan to head up the new office of Cozen O’Connor in Vancouver.

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.

In Fulton v. The Globe & Mail, 1996 CanLII 10551 (Alta. K.B.), Master Funduk noted that he was “firmly convinced that if a lawyer is prepared to search long enough and diligently enough he will find a court judgment somewhere where some of the language, taken out of context, will support the proposition the lawyer advocates. But court judgments are not some long dead Greek philosopher’s ethereal debate about whether a road runs in only one direction. Court judgments are decisions on disputes between real people, with real facts and real issues. What is said in them must always be taken in context.”

Harjit (Harj) S. Sangra spent some wonderful years at the UBC Faculty of Law (as it was then known) and graduated in 1984 with an LL.B. He went on to found the firm Sangra Mollar and recently made another very generous donation to the Peter A. Allard School of Law to renew the Sangra Memorial Entrance Award. This award will support one incoming J.D. student per year over the next ten years. The award is in memory Mr. Sangra’s mum, Gurbax Sangra, who was an ardent believer in higher education and the opportunities it provides.

The University of Chicago Law School embraces the Socratic method, describing the philosopher as “asking continual questions until a contradiction was exposed, thus proving the fallacy of the initial assumption”. The law school notes: “The Socratic Method is not used at UChicago to intimidate, nor to ‘break down’ new law students, but instead for the very reason Socrates developed it: to develop critical thinking skills in students and enable them to approach the law as intellectuals.”

Sharleen L. Dumont has been re-appointed for a further three-year term as a vice chair of the Complaints Investigation Committee of the Law Society of Yukon.

In Illinois v. Kilpatrick, 657 N.E.2d 1005 (1995), the court considered whether a trial court had improperly increased a sentence after it had been imposed by vacating the defendant’s consecutive sentences of nine and six years’ imprisonment and instead imposing a “single sentence” of 15 years’ imprisonment. Justice Heiple, dissenting, disagreed with the majority’s view that the trial court had increased the sentence, writing:

Although diligent legal research disclosed analogous cases in support of my position (i.e., 2 plus 2 equals 4, etc.), I was unable to come up with a precise case involving the figures 9 plus 6. Nonetheless, in mathematics at least, if not in law, this axiomatic principle has been universally accepted since the time of Pythagoras in the 6th century B.C. That is to

say, the fact that 9 plus 6 equals 15 has been considered self-evident for the last 2,500 years of recorded history. Accordingly, I respectfully dissent.

Richard J.S. Rainey was appointed to the board of directors of the British Columbia Assessment Authority for a term ending February 15, 2024.

In No Frills Owners v. United Food and Commercial Workers Canada, Locals 175, 2014 CanLII 27707 (Ont. L.A.), which related to the meaning of the word “lesser” in the phrase “lesser or greater contribution”, the union argued that “lesser” cannot mean “zero”, and provided various dictionary definitions in support of its position. The arbitrator noted that “[t]here was even reference in the union’s argument to a mathematical paradox that vexed ancient Greek philosophers: a number, such as a distance to be travelled, can be cut in half infinitely and still never reach zero.” The arbitrator commented, parenthetically: “This is known as Zeno’s paradox; it has not figured prominently in the arbitral jurisprudence.”

Also referring to Zeno, in Hogan v. State of Mississippi, 516 So.2d 474 (1987), the Supreme Court of Mississippi noted that this “Greek philosopher-mathematician, centuries before algebra or the digital numeral system of arithmetic were discovered, created an impossible problem in logic for the Greeks”. Zeno’s example was along the following lines: “A tortoise is placed 100 yards ahead of a hare. Each minute the hare decreases the distance between the two of them by one-half. According to Zeno, although the hare would get closer each minute, he could never overtake the tortoise. He would always remain at some distance behind it.” In this regard, the court noted that “[w]hile Greek philosophers and logicians argued for several centuries on Zeno’s problem, and indeed philosophers still debate the matter, it was no doubt clear to any Athenian walking the streets that if the race continued, the rabbit would soon overtake the turtle.”

Donald J. Avison, K.C., was appointed to the board of Emily Carr University of Art and Design for a term of two years.

Among the many accomplishments of Chief Justice Bauman is referencing six Greek philosophers in a single paragraph of Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 when still presiding over the B.C. Supreme Court: “The classical civilizations of Greece and Rome are the source of many core Western values; liberty, democracy and the rule of law among them. Monogamous marriage is another institution that finds its

roots in this ancient world … The function of marriage as described by classical philosophers - including Plato, Aristotle, Cicero, Musonius, Hierocles and Plutarch - was as a source of private goods for men, women and children, and of public goods for rulers, citizens and society”.

Lori J. Wanamaker was reappointed as a director and appointed as chair of the British Columbia Hydro and Power Authority.

Mount Socrates (2,305 m) is part of the Academy Ridge group and is located on the west side of upper Yash Creek in northern British Columbia in the Muskwa range just south of Highway 97 and Muncho Lake Park. It is just west of Mount Plato (2,381 m). Also nearby to the south is Mount Aristotle (2,123 m). However, Plato does better in name recognition as there is also a Plato Island in Quesnel Lake. Pythagoras and Thales both strike out in being remembered in any officially named geographical features in British Columbia.

In a case about judicial immunity, the Supreme Court of Appeals of West Virginia noted: “We do not pretend that judges behave like Plato’s philosopher kings, attuned only to the form of the good and undistracted by man’s baser appetites. But the uncomely vision of a judiciary hamstrung by civil liability compels us to reaffirm the strength and vitality of judicial immunity”: Pritchard v. Crouser, 332 S.E.2d 611 (1985).

Christine H. Arnold was reappointed as a member of the council of the College of Veterinarians of British Columbia for a term ending April 21, 2026.

“The ancient Greek Heraclitus said, ‘Strife is the source of all things.’ Lawyers and Judges know that on the anvil of debate much is hammered out that otherwise would have remained unshapen metal”: United States v. Worcester, 190 F. Supp. 548 (D. Mass. 1961).

June 4 to 11, 2023 has been proclaimed and declared as Heraldry Week.

In Ontario (Attorney General) v. Fraser, 2011 SCC 20, the following comment (of McIntyre J. in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313) was described in the reasons of Charron and Rothstein JJ. as reflecting a “general consensus amongst members of the Court”: While freedom of association like most other fundamental rights has no single purpose or value, at its core rests a rather simple proposition: the attainment of individual goals, through the exercise of individual rights,

is generally impossible without the aid and cooperation of others. “Man, as Aristotle observed, is a ‘social animal, formed by nature for living with others’, associating with his fellows both to satisfy his desire for social intercourse and to realize common purposes.”

John E. A. Chesko, Mona M. Muker, Brandon M.W. Mewhort, Jonathan M. Chapnick, Ryan S. Goldvine, Robert E. Groves and Richard W. Grounds were all reappointed to the Employment Standards Tribunal for various terms.

“It has been recognized since Aristotle that equal treatment is not necessarily equivalent to identical treatment”: Barber v. Sears Canada Inc. (No. 3), 1994 CanLII 18417 (Ont. H.R.T.).

Joanna M. Gislason was appointed to the Forensic Psychiatric Services Commission.

“Heraclitus quipped that you cannot step twice into the same river. A corporate group is always changing, and the change flows more swiftly than many rivers”: Central States, Southeast and Southwest Areas Pension Fund v. Sherwin-Williams Company, 71 F.3d 1338 (7th Cir. 1995).

“A professional sports team is like Heraclitus’s river: always changing, yet always the same”: Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Limited Partnership, 34 F.3d 410 (7th Cir. 1994).

In the broadband-related AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000), the court declined to consider “what our national policy should be concerning open access to the Internet”, noting that “in our quicksilver technological environment it doubtless would be an idle exercise. The history of the Internet is a chronicle of innovation by improvisation … Like Heraclitus at the river, we address the Internet aware that courts are illsuited to fix its flow; instead, we draw our bearings from the legal landscape, and chart a course by the law’s words.”

Effective March 1, 2023 to March 1, 2025, no application for Crown land may be made with respect to a Float Home or a Floating Home Community within the South Coast Region, as shown on the map in Schedule A, with exceptions as described. If that piques your interest, the Schedule A map described can be found as part of Ministerial Order No. 24 proclaimed pursuant to the Land Act

Writing in Perka v. The Queen , [1984] 2 S.C.R. 232 about the necessity defence, Dickson J. (as he then was) noted that “[f]rom earliest times it has been maintained that in some situations the force of circumstances makes it unrealistic and unjust to attach criminal liability to actions which, on their face, violate the law”. For example, “Aristotle, in the Nicomachean Ethics, Book III, 1110a (trans. D. Ross, 1975, at p. 49), discusses the jettisoning of cargo from a ship in distress and remarks that ‘any sensible man does so’ to secure the safety of himself and his crew”. In R. v. Willis (TAW), 2016 MBCA 113, the court noted that in relation to the defence of duress, writers including Aristotle have “commonly resort[ed] to the use of hypotheticals”.

Cristie L. Ford and Mona M. Muker were each appointed as a member of the Financial Services Tribunal for a term of two years. Ms. Ford was also designated as vice chair.

Erin L. Frew was appointed as a member and designated as chair of the Property Assessment Appeal Board for a term ending February 15, 2028.

Peter F. Buxton, K.C., was recently appointed as president of the Surrey Bar Association.

Lorna Strong, currently with HSBC in London, U.K., was recently awarded the Alumni Builder Award by the Peter A. Allard School of Law in recognition of her contributions as a volunteer speaker and lecturer for the law school and alumni UBC, as a member of the Centre for Business Law’s Dean’s Advisory Committee, and for her support of student financial aid.

In Aspen Interiors Inc v. Wawanesa Mutual Insurance Company, 2015 SKQB 3, the court considered whether insurance would cover damage to an articulating boom lift caused when it was being operated—negligently—by one of the plaintiff’s employees. The defendant insurance company sought to rely on one of the exclusions under the policy: “The weight of the load exceeding the registered lifting or supporting capacity of any machine.”

The court described the incident as occurring when the plaintiff was involved in the construction of a commercial building in Saskatoon. Matters got exciting, as the lift “became immobilized at the construction site; specifically, it was stuck in the mud. The plaintiff’s operator, S.C., attempted to free the Lift from the mud by rocking it back and forth. That effort bore no fruit.” The court continued:

S.C. is apparently a devotee of Archimedes mantra, “Give me a lever and a place to stand and I shall move the world.” In furtherance of that, S.C. then

put the telescoping arm of the Lift and the basket, the [Boom], into the ground and then extended the telescoping Boom with a view to levering the Lift out of the mud.

One of the lesser known corollaries to Archimedes mantra is that the lever must have an appropriate degree of tensile strength vis-à-vis the object to be moved. In this instance, not only did the attempt at levering the Lift out of the mud not work, it damaged the Boom.

Although the weight of the materials and/or workers hoisted by the lift did not exceed the weight prescribed, “the sensible commercial result is to interpret load in a way which would include external resistance being applied to the Lift or overall force to which the Lift is being subjected”. Thus, as in this case, “the operator was using the Boom as a lever to extract or move the Lift from the mud”, “[t]hat act exceeded the registered lifting or supporting capacity of the Lift”. The exclusion applied.

“Diogenes Laertius, author of a work on Greek philosophy and living in the earlier half of the third century, wrote in his book Lives of eminent philosophers about Plato’s definition of man. He recounts how Plato was applauded when he defined man as ‘an animal, biped and featherless’. When Diogenes of Sinope, or the Cynic, plucked a fowl and brought it into the lecture-room with the words ‘Here is Plato’s man’, ‘having broad nails’ was added to the definition”: GFKL Financial Services (Taxation), [2011] EUECJ C-93/10.

In Marcinkiewicz v. General Motors of Canada Co., 2022 ONSC 2180, the court said that at the heart of the proposed products liability misrepresentation class action before it was “a semantic paradox of the nature of the ‘Liar’s Paradox,’ which was formulated by the Greek philosopher Eubulides”. The court noted: “A succinct version of the paradox asks the Liar to answer the question: ‘Do you lie when you say you are lying?’” The court added: “Readers beware, the ancient logician Philetas of Cos died an early death in frustration from his failure to solve the ‘Liar’s Paradox’.”

The “saying ‘ignorance of the law is no excuse’, is an ancient one and attributed to the Greek philosopher Aristotle”; it is “equally true now as it was in ancient times”: Smith v NSW Land and Housing Corporation, [2023] NSWCATAP 12.

Robert M. Buergenthal recently joined the Justice Education Society as its new International Program Director.

Celeste A. Haldane, K.C., was reappointed as chief commissioner of the British Columbia Treaty Commission for a term of three years.

Karen R.A. Ameyaw was appointed as a member of the Community Care and Assisted Living Appeal Board for a term of two years.

In Vernon v. Sutcliffe, 2014 NSSC 376, where two sisters sought to remove two brothers as their mother’s lawful attorneys, the court referred to Plato’s discussion in the Republic of “what might be an ideal form of government” and his suggestion that “an ideal city State could be ruled by a philosopher king, and an associated class of guardians, whose role would be to protect the society’s existence in its ideal form over time”. The court cited this as the possible underpinning of the phrase (found in the Satires of the Roman poet Juvenal) “Who will guard the guards?” or “Who watches the watchmen?” The court noted: “While its origins may be of only passing interest to most persons, the phrase raises a transcendent question about who can be trusted with power.”

When you look over at your electronic device in the car, remember that the term “use” of said device is comprehensively defined in the Motor Vehicle Act to mean one or more of the following actions: (a) holding it in a position in which it may be used; (b) operating one or more of its functions; and (c) communicating orally by means of the device with another person or another device. The Use of Electronic Devices While Driving Regulation describes “use” more plainly to mean “a person who watches the screen of an electronic device uses the device.” So don’t even look over at yours when behind the wheel.

In Mesce v. Automobile Association of New Jersey, 8 N.J. Super. 130 (App. Div. 1950) the court described a contributory negligence defence with reference to the story of a Greek philosopher who “[m]any centuries ago … stepped into a well while looking at the stars, from which experience came the maxim: ‘He who looks foresees the peril that the heedless encounters.’”

Delivering the opinion of the U.S. Supreme Court, Justice Kennedy wrote: “Music is one of the oldest forms of human expression. From Plato’s discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state”: Ward v. Rock Against Racism, 491 U.S. 781 (1989).

“From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas”: Redmond-Bate v Director Of Public Prosecutions , [1999] EWHC Admin 733.

In Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), the U.S. Supreme Court considered university funding guidelines that excluded “religious activity”, defined as any activity that “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality”, from funding eligibility. Justice Kennedy, writing for the court, noted the “vast potential reach” of the exclusion as barring, for example, “any writing advocating a philosophic position that rests upon a belief in a deity or ultimate reality”, or any writing presupposing the existence of such a deity or reality. Justice Kennedy noted that “[w]ere the prohibition applied with much vigor at all, it would bar funding of essays by hypothetical student contributors named Plato, Spinoza, and Descartes”. Further, if as the university contended the prohibition covered “student journalistic efforts that primarily manifest or promote a belief that there is no deity and no ultimate reality”, then “undergraduates named Karl Marx, Bertrand Russell, and JeanPaul Sartre would likewise have some of their major essays excluded from student publications”. In this regard, “[i]f any manifestation of beliefs in first principles disqualifies the writing, as seems to be the case, it is indeed difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Plato could contrive perhaps to submit an acceptable essay on making pasta or peanut butter cookies, provided he did not point out their (necessary) imperfections.”

Laura I. Wilson was appointed to the council of the Architectural Institute of British Columbia for a term ending February 1, 2026.

F. Abigail Fulton and Kyong-ae Kim were appointed as members of the board of management of the Association of British Columbia Land Surveyors for terms ending in 2025.

barbara findlay, K.C., is to be one of 12 recipients of honorary degrees from Simon Fraser University in 2023.

In West v. Bell Helicopter Textron, Inc., No. 14-2168 (2015), a case arising out of a helicopter accident, the U.S. Court of Appeals for the First Circuit noted that “[f]or thousands of years, humanity has looked to the sky and dreamt of flying. Philosophers and poets have had much to say on the subject, leaving in their wake a bevy of quotes and sayings about the beauty of flight”. The court pointed to Plato, who wrote in Phaedrus: “The natural function of the wing is to soar upwards and carry that which is heavy up to the place where dwells the race of gods. More than any other thing that pertains to

the body it partakes of the nature of the divine.” The court conceded that “[t]he Federal Rules of Civil Procedure, although elegant in their own way, have so far failed to inspire such devotion”.

“The maxim, ‘like cases should be treated alike,’ attributed to the ancient philosopher Aristotle in Nicomachean Ethics, has been characterized more recently by H.L.A. Hart as ‘a central element in the idea of justice’”: Dak Americas LLC v. United States, Slip Op 20-80 (4 June 2020, United States Court of International Trade).

Thought du mois:

What you leave behind is not what is engraved in stone monuments, but what is woven into the lives of others.

—Pericles, Greek politician (495–429 B.C.)

CONTRIBUTORS

Virgil Braithwaite has been attending various law-related events throughout British Columbia for the past 60 years. Virgil is not a practising member (or even former member) of the British Columbia bar, but that has not really deterred him from lurking amongst its members—listening and watching.

Murray Clemens, K.C., on the other hand, is a practising member of the bar and has been so since 1976. An experienced mediator and arbitrator with over 40 years in civil and commercial litigation and administrative law, Murray is a partner at Nathanson, Schachter & Thompson LLP.

Fayme Hodal is called to the bars of British Columbia (2019) and Alberta (2020) and is based in Surrey, British Columbia at KSW Lawyers, where she focuses on taxation and employment law matters.

Adam Howden-Duke is a litigator focusing on commercial and insurance defence work at Guild Yule LLP. Adam has practised law in New Zealand and England as well as Canada and is the current president of the Lawyers’ Inn Society.

Michelle Lawrence is an associate professor at the UVic Faculty of Law. She holds graduate degrees in law and criminology, with a master of laws from the University of Cambridge and a Ph.D. in criminology from SFU. Michelle is the current director for the Access to Justice Centre for Excellence at UVic.

Jenson Leung is a UVic graduate (2017) and practises employment law at KSW Lawyers in Surrey, British Columbia. Jenson has volunteered as a member of the Federation of Asian Canadian Lawyers (BC) and as a board member for the Wildlife Rescue Association of BC.

Joel Nitikman, K.C., is a partner in the tax group at Dentons and is a leading tax litigation lawyer. Joel is widely published across a range of publications dedicated to tax law that we heretofore have only dreamed could even exist.

Julie Sloan is the communications officer for the UVic Faculty of Law. She has a B.A. in writing from UVic and has worked in Canadian embassies abroad and as the communications officer for the UVic Department of History.

Ivan Watson is a senior marketing and communications specialist at UVic.