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VOL. 82 PART 3 MAY 2024

On the Front Cover: Freya Kodar By

Katie McGroarty

Some Things Change, Some Things Don’t: Gang Violence in Vancouver Then (1955) and Now (2024) – Part I: The Process By

Joseph C. Bellows, K.C.

Bill 48 and Online Platform Workers in British Columbia: A Brief Comment By

Fife Ogunde

Everywhere But After By Eric

Kroshus

Spot the Lawyer: The Answer By Joseph C. Bellows, K.C.

Frankenstein’s Folly: A Lesson in How to Avoid Scorch-the-Earth Litigation By

Leslie Palleson

ON THE FRONT COVER

Freya Kodar is the dean of UVic Law. Read about the legal legacy she follows and the legacy she is building now at p. 337; periodic and elemental perhaps?

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ENTRE NOUS

One of our unfortunate colleagues recently found herself in the middle of a maelstrom created by the invention of two cases by ChatGPT, a prominent artificial intelligence (“AI”) system. The mistake was caught before the court application for which ChatGPT had invented the cases was heard, and the court recognized the involved lawyer’s efforts to correct the error, sincere apology and manifest regret.1

In light of examples such as the above, courts and regulators are increasingly urging or requiring lawyers who make use of generative AI (the form to which this editorial relates) for the purpose of legal research and preparation of attendant legal arguments to do so with care, to make known to opposing counsel and the court that AI has been used, and to verify that the citations and statements that AI generates are accurate.2 However, at least some of those courts and regulators still assume that, as long as the appropriate improvements and safeguards are put in place, AI may well be ultimately as useful in the underlying legal research and the drafting of submissions as in such tasks as document production and processing, court administration and streamlining case management.3

Undoubtedly it is important to explore the use of AI to ease burdens on overburdened judicial systems, and to improve efficiencies and reduce costs in the legal system as a whole. Perhaps all could benefit from use of AI’s organizational and predictive abilities to comb through millions of documents, streamline scheduling and provide further means of interacting with the courts and other tribunals. However, we should at least pause before assuming AI is of automatic benefit in legal research and the drafting of submissions, or that its benefits outweigh the costs.

Now, we anticipate some readers will dismiss out of hand the cautious note expressed in the preceding paragraph. Those readers may say that it is

in lawyers’ financial self-interest (as well as a boost to their egos) to carve out this realm from further AI incursion: lawyers want clients to pay them for hours of human work when, were those lawyers prepared to admit it, a machine could do the same or better in a fraction of the time and (assuming the per-use cost of a quality AI system were reasonable) a fraction of the cost.

But let us think about that. When it comes to legal research and the drafting of submissions, (1) is there a problem with the human form of those exercises that can be, or needs to be, solved; (2) if there is, is AI a potential solution to that problem; and (3) if AI is a potential solution, is AI better than other potential solutions?

Is there, in fact, a problem, now, with human legal research and submission drafting? Arguably there are at least two problems. One is that these exercises take a lot of human time (and consume the resources of clients who pay for that time, as well as distracting from other tasks). The second arguable problem is that the legal research rarely results in certainty in terms of output (that is, there is often some ambiguity left at the end of the exercise). What, if anything, can AI do about those issues?

Turning first to the question of time: will using AI for legal research and submission drafting save time? Well of course, AI may spit out an initial result faster than a human can (assuming a computer has not crashed and that internet access is available—otherwise the human able to use a library catalogue and physical books, digests and law reports takes the lead). Does the swifter production of the initial work product itself mean the use of AI saves time? No, it does not—and bear with us on this.

First, let’s not overstate how long human research on most legal topics does or should actually take. (That is, even if AI takes seconds or minutes at most, the human equivalent is in most cases not days, weeks or months, but minutes or hours—just ask the registrars and judges who, when assessing court costs, are reluctant to entertain the thought that lawyers reasonably spend all that much time on any given research task.) That the disparity in time spent (machine vs. human) is less than one might think is because what actually needs to be researched to come to a conclusion on the state of B.C. law is quite limited. It is not the millions upon millions of documents that AI is known for absorbing and generating predictions from. It is, rather, an enactment or two, and—given the principles of vertical and horizontal stare decisis4—ideally a Supreme Court of Canada case, perhaps one or two B.C. Court of Appeal cases, and perhaps a few more B.C. Supreme Court cases. Existing shortcuts for finding those enactments or cases, other than AI, include (1) secondary sources that humans have gen-

erated5 and (2) recent cases in which helpful judges have summarized leading authorities.

We rarely think of research in this limited way anymore because of the vast quantity of resources, over and above those listed in the prior paragraph, that the internet has made available to us. That quantity—and the varied quality—instill panic in many of us. There are millions upon millions of documents we could access, globally, touching on many topics. Given we know that, statistically, something must be out there in some jurisdiction bearing on what we are researching, it is often difficult to resist the temptation to search for it, or avoid a nagging sense of guilt for not doing so. However, a much more limited subset of that available pool of material actually consists of binding authority that needs to be consulted, other than when trying to construct more complex arguments relying on policy or merely persuasive authority to effect a change in, or clarification of, our own jurisdiction’s existing law. We otherwise do not need either a human or AI to churn through the enormous database of at best tangentially relevant material that is the “internet” to come up with an answer to a B.C. question.

Second, while in most cases the immediate work product may be generated more quickly by AI than by a human, receipt of the immediate output is not the end of the exercise: the clock does not stop running at that point. After AI generates its work product, human time is going to be consumed by taking certain extra steps that the human doing their own research and writing would not need to take.

One of those extra steps is checking the AI work product to make sure it is accurate. This “human-in-the-loop” verification is now being urged or even required by courts that contemplate some use of AI for legal research and submission drafting.6 The requirement for human verification likely flows as well from existing standards of professional conduct requiring that lawyers not misrepresent the law to the court and that they take responsibility for (supervise) work that is done in their office.7

It is not, of course, that a lawyer can be careless in doing their own legal research (and can avoid embarrassment or worse by saying “I may be wrong, but at least I was human”). However, in the course of doing their own research, the lawyer is already doing the tasks that checking AI work product would involve: looking at and reading the cases and other sources on which they wish to rely. It is a combined exercise, not a two-step exercise.

The exercise of checking the AI work product is not, in most cases, simply a matter of minutes—rather, it could be a matter of hours. Recent news coverage has made clear that AI is capable of (1) inventing case citations

that look very much like actual case citations, with convincing-looking party names, dates and the names of actual law reports or other sources, (2) inventing passages from those phantom cases, and (3) reporting its results in a way that sounds both coherent and confident. In order to verify the accuracy of the AI work product, a diligent human actually has to find each cited source (if it even exists), read it through, and then think about it.

Where AI generates a form of written submission in which case or other citations are not included and sources are not otherwise identified, the human reviewer must also puzzle through to try to identify what might have been the inputs that generated the answer—questions that the human who had done the underlying research would not have. If the underlying inputs cannot be determined, concerns about potential bias in AI’s selection of a subset of potential sources, or its failure to recognize a bias in dominant sources, may not be resolvable.

There is an additional extra step, that a human author does not need to take, that comes with using AI to generate submissions. Even if the problem of AI systems “hallucinating” footnoted cases were a short-term one that programmers could ultimately fix, the fact remains that counsel taking a case to court would inevitably need to adjust the emphasis and nuance in the text of an AI-generated submission to fit with the facts of their case, their pleaded claims or defences, and their personal style.

A third way in which AI may cause extra time to be spent on a case does not arise in every case, but does in those cases where things go wrong (perhaps in part because not enough time was devoted to the verification and adjustment above). If a mistake AI causes is not caught in time, a lawyer may later need to spend an enormous amount of time and mental energy on fixing or ameliorating the situation in the courts, in the press and before a regulator.

Fourth, say AI performs its job thoroughly and does not, in fact, invent cases. Rather, it finds cases from around the world supporting propositions that the lawyer from whom it has received its mission wants to argue, and it creates elegant-sounding written submissions about those propositions for the court to consider. Thoroughly impressed with AI, lawyers then use it to generate articles, blog posts and case comments (more to post on LinkedIn and firm websites). Next time another lawyer tasks either AI or a human with finding the law on an issue, those AI-generated sources come up in the search and are so attractive that they get cited. Legal arguments get longer, books of authorities get bigger, and more court time is spent on hearing submissions. This may be the price of getting the law right, or it may simply facilitate the spending of time and money on issues that do not

matter, or on which a party is ultimately not going to succeed anyway when core binding law is deferred to.

If it is not AI that can reduce the time spent on legal research and submission drafting (and on the larger litigation into which those exercises may be slotted), what can? Well, perhaps time and cost savings might instead be achieved more effectively through courts setting (or enforcing) shorter deadlines on parties, capping the length of submissions or the number of authorities that may be cited, and encouraging preliminary motions to strike out or otherwise resolve distracting, legally complex claims or arguments.

As referenced earlier, the other “problem” that we often associate with the present state of legal research is a sense of uncertainty: it is difficult to emerge from a legal research exercise with full confidence that the correct answer has been found. Even if AI might not save time, is the use of AI for legal research and generating submissions a means of providing us with the certainty we seek?

We suggest it is not. Uncertainty is not an issue that stems from the fact a human, rather than a machine (once its results are human-verified), has done the research. Rather, it stems from what is being researched: law, which is inherently uncertain. Enactments contain words that are subject to interpretation, cases rarely deal with the whole of any issue, what is found in any given enactment or case may be subject to competing enactments or foundational constitutional requirements and principles, and over time it may evolve.

The fact AI rather than a human does the legal research should not make the outcome any less uncertain. AI is, after all (or so we hope), basing its research on the same categories of sources that human researchers consult: primary sources (enactments, cases) and secondary sources. Although AI may find and process those sources more quickly, in theory it should be looking at the same things as a human would be—other than where AI invents a case that a human would not find. As it is the sources from which, by their nature, uncertainty stems, AI should not actually be generating more certain results. If AI generates arguments that sound more confident than a human researcher might sound in reporting on the results of their research, that is not necessarily a good thing—rather, AI’s confidence might mask problems that a lawyer advising the client or taking a case to court should know about.

Think about all the technologies and innovations that were supposed to make our lives easier that have just caused us to spend more time fretting at our computers, interacting with our IT departments (for those of us fortunate enough to have one) and feeling discombobulated. All we ask is that

before we assume AI is the solution to embrace, we think about the problem we are trying to address, whether the issue is inherent or solvable, and whether there are alternatives.

Still not convinced there is reason for concern about using AI in legal research and submission drafting? Or more concerned by arguments not identified above? Write and tell us—this is an important conversation for us all to engage in.

ENDNOTES

1. Zhang v Chen, 2024 BCSC 285.

2. See, for example, the Federal Court’s December 20, 2023 Notice to the Parties and the Profession regarding “The Use of Artificial Intelligence in Court Proceedings”, reproduced in “Court Notices and Directions” (2024) 82 Advocate 245 at 252–54. In that notice, the court said it expects parties to proceedings before it “to inform it, and each other, if they have used artificial intelligence to create or generate new content in preparing a document” that they file. It also “urge[d] caution when using legal references or analysis created or generated by AI” in submitted documents, noting that “[w]hen referring to jurisprudence, statutes, policies, or commentaries … , it is crucial to use only well-recognized and reliable sources. These include official court websites, commonly referenced commercial publishers, or trusted public services such as CanLII”. Further, the court referred to the concept of “[h]uman in the loop”, stating that “[t]o ensure accuracy and trustworthiness, it is essential to check documents and material generated by AI” and “urg[ing] verification of any AI-created content in these documents”. The notice “does not apply to AI that lacks the creative ability to generate new content. For example, this Notice does not apply to AI that only follows pre-set instructions, including programs such as system automation, voice recognition, or document editing. It bears underscoring that this Notice only applies to content that was created or generated by AI”.

3. See also the Federal Court’s companion “Interim Principles and Guidelines on the Court’s Use of Artificial Intelligence”, also of December 20, 2023: ibid at 255–57. This document suggests that, at least as properly monitored, regulated or evolved, AI could ultimately provide valuable assistance in legal research, just as it could for the performance of

administrative tasks, “streamlining aspects of case management” and assisting in translating text.

4. R v Kang, 2019 BCSC 2109 at paras 42–47; R v Comeau, 2018 SCC 15 at para 26.

5. Although bearing in mind that some of those human authors are optimistic or sloppy and their footnotes need to be checked as well, to ensure the cited cases or other sources actually stand for the propositions for which they are cited.

6. For example, as noted earlier, the Federal Court’s December 20, 2023 Notice to the Parties and the Profession regarding “The Use of Artificial Intelligence in Court Proceedings”, supra note 2, refers to the concept of “[h]uman in the loop”, stating that “[t]o ensure accuracy and trustworthiness, it is essential to check documents and material generated by AI” and “urg[ing] verification of any AI-created content in these documents”.

7. Rule 2.1-2(c) of the BC Code of Professional Conduct provides that “[a] lawyer should not attempt to deceive a court or tribunal by … misstating … law”, and r 6.1-1 provides that “[a] lawyer has complete professional responsibility for all business entrusted to him or her and must directly supervise staff and assistants to whom the lawyer delegates particular tasks and functions”. The Law Society of British Columbia practice resource entitled “Guidance on Professional Responsibility and Generative AI”, prepared in October 2023, provides on p. 4: “Although Code rule 6.1-1 was intended to cover human-tohuman supervision, it provides an important reminder that lawyers are ultimately responsible for all work product they oversee, whether it be produced by non-lawyer staff or technology-based solutions”. See online: <www.lawsociety.bc.ca/Website/media /Shared/docs/practice/resources/Professionalresponsibility-and-AI.pdf>.

ON THE FRONT COVER

FREYA KODAR

By Katie McGroarty

Growing up in Toronto with librarian parents, Freya’s first job at her local library felt familiar. Her love for reading and research could easily have led her to follow them into a life as a librarian or archivist. Yet, amidst these familiar surroundings, Freya discovered a different passion—one that would guide her towards a journey in law and advocacy, and influence the leadership style she would come to embrace throughout her career. It will be no surprise to those who know her that Freya was a Girl Guide and a Pathfinder. What may be more surprising is that she is an amateur violist.

While the decision to take up the viola in junior high school was largely driven by practicalities (the challenges of lugging the cello up and down the subway stairs, and around the snowy streets of Toronto), Freya came to appreciate its tone and the role that the viola plays in orchestras and ensembles. It may not take centre stage, but it is undeniably essential to an orchestra’s harmony. Freya’s next chapter would mirror her early experiences as a viola player, providing a quietly supportive role in helping others and effecting change, often from behind the scenes.

Although Freya’s aspirations for a legal career did not fully materialize until university, early signs of her interest in law began to emerge. A visit from a female lawyer to a Girl Guide meeting sparked her curiosity about the law and legal practice. Later, as a teenager, Freya took steps to advocate for greater political rights for youth. Writing a letter to then Prime Minister Pierre Trudeau, she asked for the minimum voting age to be lowered to 16. While the effort did not lead to the kind of change she envisioned, these early experiences would foreshadow Freya’s future in law and hint at her later contributions to legal academia and leadership.

After high school, Freya headed east to Montreal to attend McGill University. It was 1986, the Canadian Charter of Rights and Freedoms was now entrenched in the constitution and the courts were giving meaning to its content. Freya would complete a B.A. degree in political science. Outside the classroom, she was an elected member of the McGill Student Council, supported gender-neutral language initiatives on campus, helped to form the McGill Coalition Against Sexual Assault and sat on the university’s Senate Committee on Women. Freya’s commitment to feminism and equality, which she embraced at McGill, has been a constant in her life. Law, for her, is a means to advance equality, a philosophy that has guided her career choices and advocacy efforts.

While at McGill, Freya was discovering the rich body of feminist research and advocacy within the legal academy, particularly around discussions of formal and substantive equality. While she had not seriously considered a legal career, through this scholarship, she realized that law could be an important instrument for social change. After spending a year in Quebec City completing a Certificate in French as a Second Language at Laval University, she headed to law school.

As it turns out, Freya was not the only one in her family to see law as a means to advance equality. In 1916, her great-great aunt Isabel Ross MacLean Hunt was the first woman to receive a bachelor of laws degree from the University of Manitoba, and in 1918, the first woman in Western Canada to establish a law office. She would go on to be the first woman in Manitoba to be appointed Queen’s Counsel. In 1983 she was awarded a Governor General’s Award in Commemoration of the Person Case for her role in improving the status of women in the legal field in Canada.

In choosing to apply to UVic Law, Freya was drawn to its progressive spirit. At the time, Maureen Maloney, Q.C. (as she then was), was the dean, the first female law dean in British Columbia, something that reflected the type of representation Freya wanted to see in law school. After receiving her acceptance, it was the invitation (sent in the mail!) to the annual “Dean’s Barbeque” that confirmed that UVic Law was the type of place Freya wanted to be. In the invite, students were expressly invited to bring their “partners” and children. This recognition of diverse relationships and childcare responsibilities was something that was unusual at that time.

In her first year, Freya remembers her introductory Legal Process class as a place that fostered an environment where students could respectfully disagree—something she recalls Professor Gerry Ferguson as embracing, even if he remembers her class as being among the most opinionated and vocal Legal Process classes he taught. While debate was encouraged, Freya

made sure that there was space for everyone to speak. Her classmate Deborah Hull remembers Freya standing up when a classmate was speaking over others, and not giving some the opportunity to join. Ensuring that everyone’s voices were heard has been an indelible part of Freya’s personality, from her first years in law school until now. Though she may see herself as a background supporter, her colleagues and friends all speak to her quiet integrity, and her ability to effectively challenge the status quo through her strong, non-confrontational demeanour.

At UVic Law, Freya continued her pursuit of equality and commitment to feminism, bringing a feminist perspective to her academic work, and taking courses with Hester Lessard, Lisa Philipps and Margot Young. During her first year, the Law Society of British Columbia’s Gender Bias Committee, chaired by Ted Hughes, Q.C., was examining gender bias in the legal profession and the justice system. As a member of the UVic chapter of the National Association of Women and the Law (“NAWL”), Freya, along with her peers, conducted a survey of female students about their law school experiences. She was part of the group of NAWL members who presented their findings to the Gender Bias Committee when it visited the law school.

After graduating with the Class of ’95, where she shared the William R. McIntyre Award (the graduating class prize for academic excellence, community service and student leadership), Freya articled with the Legal Services Society, with time at the poverty law, criminal law and family law clinics. After working as a staff lawyer for Vancouver’s Legal Services Society and the Langley Legal Assistance Centre, and as a program director at the Law Foundation of British Columbia, she decided to return to school to explore questions that she felt she was not able to address through practice.

Freya completed an LL.M. at Osgoode Hall Law School, under the supervision of Mary Condon. Her thesis, “Corporate Law, Pension Law and the Transformative Potential of Pension Fund Investment Activism”, explored the ways in which pension law and corporate law principles and practices permit or constrain unions from using their pension fund investments to respond to, or influence, corporate behaviour.

Law school positions were scarce in the early 2000s, but an opportunity at UVic Law emerged, providing a chance for Freya return to an institution that resonated with her values and research. The collaborative teaching approach and a focus on social justice aligned with her vision for legal education, so she, her partner Ken and her four-month-old son all made the trip to Victoria to participate in the interview process. When she was offered the position, the fact that UVic accommodated her family responsibilities during the interview process and acknowledged the diverse responsibilities

applicants may have outside of work helped Freya and Ken decide to pack up and head back to the place where she had started her legal education.

Freya joined the faculty in 2005 and recalls her first couple of years as a time of hectic adjustments. She remembers the students in her first classes as generous and kind while she juggled long hours, childcare and the seemingly endless cycle of preparation that comes with being a new teacher. Seeing others on campus struggle to find childcare within an overburdened system, she quickly became involved in a university coalition that encouraged spaces to be opened on campus. Even in her first years, Freya’s commitment to fostering a supportive environment for both faculty and students would be one early example of how she would use her inclusive spirit to help advocate for those around her. Now with 20 years of teaching experience, Freya still loves getting to teach first-year students as they start to think and see the world through a new lens and learn the language of law. She values being able to witness the next generations of law students reacting to a changed perspective, and getting to see where their legal education takes them.

In her research, Freya has focused on questions of income and financial inequality across the life course and has been published in a range of scholarly media. She undertakes this work with attention to marginalization, particularly in the construction of gender and family relations. Freya also teaches in the areas of consumer law, pensions, torts, and disability and the law, where she brings a feminist perspective to both her classroom and scholarly pursuits. Most recently, she has been one of the co-authors of Law and Disability in Canada: Cases and Materials, the first Canadian textbook on law and disability.

Her transition to administrative roles, particularly as Associate Dean Administration and Research from 2016 to 2021, allowed Freya to explore the intricacies of problem solving for a large, influential institution, while supporting her colleagues to advance the types of change needed in the legal landscape. Her role extended beyond the classroom, involving responses to critical situations like the COVID-19 pandemic and the introduction of the joint J.D./J.I.D. degree program in Canadian Common Law (J.D.) and Indigenous Legal Orders (J.I.D.).

When reflecting on her contributions, colleagues Sarah Morales, Associate Professor, and Ruth Young, Director of Indigenous Initiatives, liken Freya’s presence to the Moon in Coast Salish stories—a symbol of transformation, guidance and protection. The Moon is often talked about as being a different version of itself everyday, and like the Moon, Freya is both a transformer and one who is open to being transformed. Her leadership style

embodies these qualities, providing steady guidance while remaining open to change and the evolving needs of faculty, staff and students. Despite her reluctance to seek the spotlight, Freya’s dedication to the faculty, its people and the land is unwavering, something her colleagues see as positioning her as an ideal leader to guide UVic Law into its next chapter.

While she may have never aspired to the position of dean, Freya’s commitment to serving the institution led her to embrace the opportunity, and on July 1, 2023, she started as dean of UVic Law. Freya’s tenure so far has been marked by a dedication to service, where her leadership style aligns with a “lead from behind” philosophy. Overcoming initial hesitations, she embraced the role to facilitate crucial developments within the school, focusing on the collaborative, inclusive and socially conscious aspects of legal education. Her works stems from a personal commitment to bettering the world around her and she is recognized for having the unique ability to listen and understand the school’s obligations to the territories they live on and work with. While the Sun may take centre stage, it is the Moon in the background that helps the stars shine brighter—a role that Freya embodies through her leadership and commitments to students, staff, faculty and the land.

As dean of law, Freya’s priorities are rooted in tangible outcomes. She leads the faculty through planning and curriculum reform processes, emphasizing the need for ongoing growth, inclusion and relevance. With an exemplary record of teaching and research, implementing equity, diversity and reconciliation initiatives, and supporting faculty, staff and student success, Freya has a reputation of balancing both strategy and tackling real-world issues. As she leads the faculty, her focus remains on creating inclusive spaces, providing steady guidance while being open to transformation, change and the needs of those she works alongside. With the completion of the expansion to the Fraser Building, which will house the (provisionally named) National Centre for Indigenous Laws, Freya anticipates celebrating the faculty’s upcoming 50th anniversary in a transformative space that embodies its commitment to equity, justice and reconciliation.

Freya’s journey mirrors the changing landscape of legal education, activism and leadership. Her experiences, from McGill to UVic, from the viola section to the dean’s office, show a dedication to social justice, equality and the influence of legal education. As she leads the UVic Faculty of Law, Freya demonstrates the impact the law can have on shaping a more equitable and just society.

SOME THINGS CHANGE, SOME THINGS DON’T: GANG VIOLENCE IN VANCOUVER THEN (1955) AND NOW (2024)

PART I: THE PROCESS

By Joseph C. Bellows, K.C.

After a Vancouver jury convicted multiple people accused of gang violence, the trial judge remarked, “We are only too familiar in this city with violence between rival gangs. We have crimes of violence which endanger the peace and security of the whole community.” Was this the sentiment of a judge who presided over a trial in 1955 or a trial that completed in the fall of 2023?

Gang prosecutions in British Columbia are notorious. The historical present would include the 1995 prosecution of Bindy Johal and four others, formally charged with two counts of first-degree murder, and the subsequent conviction of the tainted juror Gillian Guess, who had a personal relationship with one of the accused during the trial.

Since then, a great many prosecutions have taken place in the province with multiple accused persons associated with recognized gangs, including the Hells Angels, The Greeks, The Red Scorpions, The UN, The Brothers Keepers and others. Invariably the core causation of the conflict involves some aspect of seeking to control lucrative drug trafficking activities.

Gang violence in support of the drug trade is not a new phenomenon, nor is the prosecution of those involved in that violence. But the scope and dimensions of the trial process then and now are profoundly different. This article does not purport to compare present legal principles and evidentiary standards to those accepted in the 1950s. This article only chronicles differences in process, scope and the dimensions of comparable trials. For this comparison, I have chosen one of the most sensational criminal prosecutions of the 1950s in which the accused persons were represented by the two pre-eminent barristers of the day, the Honourable Angelo E. Branca, Q.C., described as the “Gladiator of the Courts”, and Hugh McGivern, Q.C., one of the province’s best-known defence counsel.1

Five men (Robert Tremblay, Luciene Mayers, Charles Talbot, Marcel Frenette and James Malgren) were charged with the attempted murder, on June 11, 1955, of Thomas Kinna. The motive was one recognizable in today’s trials. Kinna was beaten almost to death after he “hi-jacked a small quantity of drugs”, believed to be just ten capsules of heroin with a market value of $40. City Prosecutor Stewart McMorran charged in Police Court that “a four-man gang was dispatched from Montreal to organize the drug, bootlegging and prostitution rackets in Vancouver into one large ring directed from the east”. Four men were sent here from Montreal and were “to organize the city’s illegal rackets among them”. James (Jimmy) Malgren was born in Vancouver, had local knowledge and joined the four. The City Prosecutor alleged that Kinna was a drug addict and pusher who obtained 200 caps of heroin from Bert Lawrence, Chick Morgan and Tom West “without payment” and that the beating was a reprisal for that theft.

Shortly after midnight on June 11, 1955, Kinna was lured to the False Creek flats with two men for a drug “fix”. He was attacked and savagely beaten with a three-quarter inch diameter iron bar. He was admitted to Vancouver General Hospital at 10 a.m. that morning in critical condition suffering fractures to both legs, bruising to his back and head and substantial loss of blood.

Among many remarkable differences between gang prosecutions then and now are how quickly bail was dealt with and how quickly the matter came to trial. The accused persons were arrested within days of the offence. Each had a serious criminal record. Tremblay’s record dated from 1939 and included three months’ incarceration for assault in 1944 and carrying a concealed weapon and possession of burglary tools in 1946. Frenette had been convicted of breaking and entering in 1943. Mayers’ criminality began in 1924 and included convictions for breaking and entry, theft, armed robbery (for which he received a sentence of eight years’ incarceration), illegal possession of burglary tools, possession of opium and passing counterfeit money. Talbot’s record started in 1934 and included possession of opium, possession of stolen goods, attempted shop breaking and armed robbery (for which he received a sentence of seven years’ incarceration). Malgren’s record started in 1946 and included five years for armed robbery, three months for inflicting bodily harm and ten years for an offence under the Narcotics Act. Bail was dealt with in the Kinna case within two months and each man was detained.

A preliminary inquiry was conducted and by September 7, 1955 the accused persons had been committed for trial. On September 8, 1955, ten exhibits entered at the preliminary inquiry were transferred to “SCR Locker” (the Supreme Court Locker) and on September 9, 1955 the registry

received the five warrants of committal. On October 12, 1955 an order was made for the attendance of R. Gordon to testify for the Crown.

The trial commenced before Justice Manson with a jury in Assize Court in Vancouver on October 17, 1955, so within four months of the arrests. As my colleagues at the bar will attest, having bail dealt with, a preliminary inquiry conducted and a jury trial commence within four months of arrests being made is remarkable compared to the present day. Currently, it is not unusual for a client, if an allegation is serious, not even to find representation within four months of their arrest. Defence counsel would not contemplate a bail hearing before receiving substantial disclosure from the Crown, organizing sureties and preparing a reasonable “release package” to form part of their submissions. With exceptions, it is not unusual for counsel not to be in a position to make an application for release before three to five months after their client’s arrest. Even more remarkable is that the trial of five accused persons commenced before a jury within four months of their arrests. With exceptions, given the competing calendars of defence counsel, the Crown and the availability of court time, today it would not be unusual for a trial to be set down a year after bail was dealt with. In a serious case, with multiple accused, it is not uncommon for a trial date in Supreme Court to be 12 to 18 months after an arrest.

Of course, the form of the indictment today is different than it was in the 1950s, as reflected below:

1955 THAT at the City of Vancouver, in the County and Province aforesaid, on or about the eleventh day of June, in the year of our Lord one thousand nine hundred and fifty-five, they, the said ROBERT TREMBLAY, MARCEL FRENETTE, LUCIENE MAYERS, CHARLES TALBOT and JAMES B. MALGREN, did unlawfully attempt to murder THOMAS KINNA, against the form of the Statute in such case made and provided, and against the peace of our Lady the Queen, her Crown and Dignity.

2024 Robert Tremblay, Marcel Frenette, Luciene Mayers, Charles Talbot and James B. Malgren on or about (date), in the City of Vancouver, Province of British Columbia did attempt to commit the murder of Thomas Kinna, contrary to Section 239(1)(b) of the Criminal Code

The 1955 indictment also included a count of “intent to wound” and a count of “assault causing bodily harm” and was personally signed by the Attorney General, Robert W. Bonner. Today, a direct indictment is prepared by trial counsel, then reviewed and, if approved, signed by the Assistant Deputy Attorney General.

On the first day of trial, the entire jury panel was exhausted by noon and the judge instructed the sheriff to summon 15 more potential “jury men”

during the noon hour adjournment. Such a person is referred to as a “talesman”. Black’s Law Dictionary describes a talesman “as a person summoned to act as a juror from among by-standers in the court. A person summoned as one of the tales added to a jury.” This required sheriffs to leave the courthouse and stop and take 15 individuals off the street and into court to form part of the jury panel. This procedure for summoning a talesman is still available today, although jury pools are large enough that the use of the procedure is rare.

After jury selection, the Crown called Dr. E.W. Fink, who testified that he had known Kinna “since he was born”. He testified that Kinna arrived at Vancouver General Hospital in critical condition and in severe shock. He confirmed that Kinna was a drug addict and that he administered “a quarter gram of morphine every four hours for the first four days”.

Kinna began his evidence on October 18, 1955. The trial judge allowed an application by counsel to have the jury “take a view” and the entire court including judge, court staff, counsel, jury and the five accused persons reconvened on the False Creek Flats. “Thomas Kinna … limped ahead of a curious procession that wound its way … along a scrub-tangled path beside railroad tracks …”. This procedure is available and is allowed in the court’s discretion. My only experience was when defence counsel made an application that the jury view a portion of Dunsmuir Street between Howe and Granville Streets in downtown Vancouver where a shooting had occurred.

For trial, the Crown had requested the medical records of Kinna from Vancouver General Hospital. The hospital refused to provide them. The Crown relayed this information to the judge, who indicated that he was going to have “no nonsense” from the hospital and threatened a bench warrant if the records were not produced forthwith. When the records were brought later in the day, the Chief Medical Record Librarian still refused to provide them to the Crown until court resumed. This difficulty with having hospitals produce medical records persisted until the Criminal Code amendment authorizing peace officers to seek a production order.

On October 19, 1955, Branca sought a mistrial, advising the judge that the day before the Vancouver Province had published the name and address of each of the jurors. Branca alleged that this was “contempt of the most profound type”. Justice Manson agreed, dismissed the jury, ordered a new trial and ordered the publisher and editor of the newspaper to appear in court to show cause why they should not be cited for contempt. On October 20, 1955, the contempt was confirmed and a fine of $1,208.40 imposed.

In terms of a record of proceedings, all of the above matters are represented by 11 lines of handwritten notations found in a leather-bound vol-

The new trial commenced before Justice Clyne on December 12, 1955, at 11:04 a.m. Branca represented Frenette, Talbot and Mayers. He used all 12 of his peremptory challenges for each of his three clients. McGivern represented Malgren and Tremblay. He did not use any of his challenges for either client. The Crown stood aside six of the jury panel. The jury was excused and ordered to return on December 19, 1955, at 11 a.m.

On that day, Mr. Hefferman opened to the jury at 12:08 p.m. His opening was eight minutes long. Although brevity is encouraged in Crown openings, this was very brief indeed. I have no doubt that present defence counsel would endorse the brevity.

Record. Assize Court March 1954 to March 1956

Three witnesses were called on the first day of trial. The direct examination by the Crown and cross-examination by both defence counsel of Allan Jackson took approximately five minutes. The direct examination and cross-examination of Constable William Eades took approximately 28 minutes, and the direct examination and cross-examination of Edwin Henry Funk took 21 minutes. No admissions of fact were filed during the trial and the remarkably fast pace of examining witnesses continued. On the third day of the trial, the direct examination and cross-examination of John Pukish took ten minutes and the evidence of John Wardrop took six minutes. On the fourth day of trial, the “railway policeman”, Constable Harold McDonald (who found Kinna), took nine minutes. The two main witnesses for the Crown were the victim Thomas Kinna and Robert Gordon. Their evidence took approximately one day.

Only 17 exhibits were filed at trial, two of which were photographs. Today’s police disclosure often includes several hundred photographs from which the Crown selects and tenders many dozens.

The Crown closed its case at 11:30 a.m. on the fifth day of trial, December 16, 1955. During the trial, several voir dires were conducted in the absence of the jury. Taking this into account, with the jury’s absence for other matters, the evidence of 12 witnesses was heard over the period of approximately three and a half days. Given the seriousness of the offence and the number of accused, this was an unusually quick trial which, today, certainly would have taken several weeks, if for no other reason than each accused would have separate representation. The Crown’s closing argument, on December 16, took 48 minutes, McGivern’s closing was 51 minutes and Branca’s closing was 85 minutes. Counsel strive for this sort of brevity in closing arguments, but it is seldom realized today.

The judge’s charge, at 86 minutes, was exceptionally brief. It would undoubtedly take much more time today, given the number of accused and the special warnings the judge would have to include in his remarks regarding the unsavory nature of the Crown’s two main witnesses.

The jury found each of the accused persons guilty of attempted murder. This was after the jury had deliberated for 100 minutes. This is unheard of in trials today, especially given the number of counts and multiple accused.

The sentencing of the accused persons took place on December 19, 1955, four days after their conviction. As will be discussed in a later part of this article, defence counsel today would never represent more than one accused person in a multi-accused prosecution. Regardless, in this case, it seems a daunting task to prepare submissions and materials for this sentencing in such a short period of time.

On December 19, 1955, Branca’s submissions on behalf of Talbot, Frenette and Mayers took approximately five minutes. McGivern’s submissions in relation to Malgren and Tremblay followed, beginning at 10:59 a.m. There is no record as to the duration of his remarks. Justice Clyne was informed of the criminal records of each of the accused and he sentenced each man to 20 years’ incarceration.

At the beginning of this article, I posed the question whether the trial judge’s remarks were made at the conclusion of a trial in 1955 or the fall of 2023. The remarks relate to the trial discussed here, in 1955. In imposing sentence, the judge stated that “citizens are heartily sick of constantly increasing gang violence and will not permit this type of crime to plague what used to be a comparatively peaceful place.”

Some things change, some things don’t.

Part II of this article, “Substantive Differences”, will follow in a later issue of the Advocate.

ENDNOTE

1. The description of this case is based on considerable research, including through the Provincial Archives and materials in the Supreme Court and Court of Appeal criminal registries.

BILL 48 AND ONLINE PLATFORM WORKERS IN BRITISH COLUMBIA: A BRIEF COMMENT

By Fife Ogunde

On November 16, 2023, the government of British Columbia announced a proposal for new employment standards for platform workers.1 These proposed amendments are designed to ensure that platform workers are regarded as employees under British Columbia’s Employment Standards Act and Worker’s Compensation Act 2 In the words of the Minister of Labour, “the workers who appear at the touch of a button to drive us home or deliver our dinner deserve to be treated fairly”.3 The proposed amendments are expected to come into effect early 2024.

The announcement has met with mixed reactions. The BC Federation of Labour, for example, considered the plan as “not going far enough” and also expressed concerns about drivers and delivery workers not being guaranteed pay for the time spent waiting for the next assignment.4 Platform workers in British Columbia have regarded it as a starting point, but also note that the proposed minimum wage standard is insufficient to cover operating costs and provide for families.5

HISTORY OF GIG WORKER PROTECTION IN BRITISH COLUMBIA

Of all the Canadian provinces, gig work6 has been most prevalent in British Columbia.7 A 2018 survey of independent workers showed that gig workers preferred self-employment and the flexibility and freedom provided by the gig economy.8 Income instability and lack of access to employer benefits were identified as the biggest disadvantages to independent gig work.9 In 2019, United Food and Commercial Workers International Union filed a complaint against Lyft Canada Inc. for a declaration that Lyft and Uber Drivers are “dependent contractors” and therefore employees under British Columbia’s Labour Relations Code. This application was dismissed.10 In October 2021, three Uber drivers fired after alleged conflicts with passengers filed a complaint against Uber at the British Columbia Labour Relations Board.11

In October 2022, the Ministry of Labour initiated a public engagement to review and propose appropriate employment standards and other protection for app-based ride-sharing and food delivery workers. In April 2023, researchers conducted a study on precarious work in British Columbia. According to the study, half of B.C. workers lacked access to “standard jobs” and thirty-seven per cent of workers were in “precarious employment”.12 The analysis concluded that British Columbia’s system of labour law and employment standards did not guarantee employer-provided benefits coverage, adequate income, certainty of work hours or a voice at work for many workers.13 Included in the recommendations was the need for addressing misclassification of employees as independent contractors and setting a floor of a minimum set of rights for workers not considered employees. 14 Before the introduction of the proposed amendments, companies, including those with only incidental relationships, have expressed concerns with the proposal. DoorDash, a food delivery company, claimed that most of its workers would stop working on the platform if they could not choose their hours.15

PLATFORM WORKERS AS EMPLOYEES?

One of the major challenges with recognizing platform workers as employees and platforms as employers under the proposed amendments is the fact that most platform workers do not provide service on one delivery platform. More than two-thirds of those who completed the survey indicated working on only food-delivery platforms, with seventeen per cent indicating that they worked only on ride-sharing platforms.16 More than half of the workers indicated working on multiple platforms, with fifteen per cent claiming they worked on three to five platforms.17 In such cases, defining a platform operator as the employer of the platform worker becomes more problematic. In instances where a worker is present on multiple applications, it is less clear what platform bears the responsibility for maintaining minimum standards.

Another challenge, albeit a lesser one, is the fact that not all platform workers can be truly classed as employees. There are still categories of platform workers that are independent contractors.18 Even in the ride-hailing and food delivery sectors, some platform workers are more dependent on platform labour than others.19 Determining these categories of workers is in itself a challenge as more often than not, platform work is subsumed into the “gig economy”, which is a diverse economy containing various categories of workers.20 The Greater Vancouver Board of Trade points out this difficulty with respect to British Columbia, using it as a basis to argue for a “measured, cautious and precise approach” to regulating ride-sharing

and food delivery platforms.21 The Board of Trade further argued that providing platform workers with the same protection as employees could lead to undesirable outcomes such as lost income, higher cost of services and reduction in value of the gig economy.22 While there may be questions regarding the veracity of such arguments, the point here is that the wording of the legislation essentially covers all categories of platform workers when in truth the problems it aims to solve are principally located in two sectors: ride-share and food delivery. It is workers in these areas that formed the bulk of public engagement before the development of these proposed amendments. The all-inclusive definition may end up creating new interpretation and application problems, especially when other categories of platform workers outside ride-share and food delivery seek to enforce employment rights without being properly classed as employees.

Summarily, it is important to understand the aim sought to be achieved, which is protecting vulnerable workers. Not all workers have the same level of dependence on the gig economy, but for heavily dependent workers at least, the risks associated with the gig economy necessitate a certain degree of legislative protection. This is not in dispute, even by platforms. Are all platform workers employees? This is a more difficult question to answer based on the diversity in the structure and operation of platforms. There are features of the relationship between digital platforms and platform workers that closely resemble the traditional employment relationship—e.g., control over workers’ access and usage. Other features suggest an independent contractor relationship e.g. flexibility in work hours and workers’ provision of work tools. Unequivocal resolution of this question has proven difficult, particularly in the courts. By presuming an employment relationship for platform workers, particularly for minimum wage, legislative intervention provides much-needed clarity in the regulation of platform work. Will some platform workers look more like independent contractors than others? Yes. Will all benefit from minimum standards of employment? Yes. Will a presumption of employment impose additional standards of employment on ride-hailing and food-delivery companies? Yes? Is it necessary? Based on existing research, yes. On this basis, the proposal can be considered a step in the right direction. To the possibility of the amendments covering more categories of workers than intended, it may be best to say, “We will cross that bridge when we get there.”

ENDNOTES

1. See British Columbia, “Fairness Coming for Gig Workers” (16 November 2023), online: <news.gov. bc.ca/releases/2023LBR0030-001799>.

2. See Bill 48, Labour Statutes Amendment Act, 2023, SBC 2023, c 44.

3. See supra note 1.

4. See Bethany Lindsay, “B.C. Proposes Minimum Pay Standards and Workers’ Compensation for App Based Gig Workers”, CBC News, (16 November 2023), online: <www.cbc.ca/news/canada/british-

columbia/labour-standards-app-based-gig-workers -bc-1.7030885>.

5. Ibid

6. While the gig economy and the platform economy tend to overlap and are referred to interchangeably, they are not the same. Not all gig work is connected to the platform economy. See Carolyn Ali, “What is the Difference Between the Gig Economy and the Platform Economy?” University of British Columbia (19 January 2023), online: <https://beyond.ubc.ca/ what-is-the-difference-between-the-gig-economyand-the-platform-economy/>.

7. Statistics Canada, “Study: Measuring the Gig Economy in Canada Using Administrative Data” (16 December 2019), , online: https://www150.stat can.gc.ca/n1/daily-quotidien/191216/dq1912 6deng.htm>.

8. “Independents’ Day: Why Gig Work is Taking Hold in BC”, Vancity (August 2018), online: <www.van city.com/SharedContent/documents/pdfs/News/ Vancity-Report-Gig-Economy-2018.pdf>.

9. Ibid.

10. See Lyft Canada Inc v United Food and Commercial Workers International Union, Local 1518, 2020 BCLRB 35 (CanLII).

11. See Jon Hernandez, “B.C. Uber Drivers Say They Were Fired for Refusing Unsafe Work, File Labour Complaint”, CBC News, (8 October 2021), online: <www.cbc.ca/news/canada/british-columbia/b-cuber-drivers-say-they-were-fired-for-refusingunsafe-work-file-labour-complaint-1.6203671>.

12. Iglika Ivanova and Kendra Strauss, But is it a Good Job? Understanding Employment Precarity in BC, Canadian Centre for Policy Alternatives, April 2023, online: <policyalternatives.ca/sites/default/files/

uploads/publications/BC%20Office/2023/04/BC %20Good%20Job%20report%20final%20web. pdf>.

13. Ibid

14. Ibid at 57.

15. Zak Vescera, “BC Moves Closer to Gig Worker Protection Laws” (11 August 2023), The Tyee, online: <thetyee.ca/News/2023/08/11/BC-MovesCloser-Gig-Worker-Protections-Laws/>.

16. See British Columbia “App-Based Ride Hail & FoodDelivery Work in British Columbia: What We Heard”, <engage.govbc.ca/app/uploads/sites/ 121/2023/04/What-We-Heard-Report-GigWorkers -1.pdf>.

17. Ibid

18. See Carolyn Ali, “Working in the Gig Economy? What You Don’t Know Might Hurt You”, University of British Columbia (19 January 2023), online: <beyond.ubc.ca/working-in-the-gig-economywhat-you-dont-know-might-hurt-you/>.

19. Studies show that the level of dependence on platforms may also influence their response to losing platform work. See Youngrong Lee, “After a Global Platform Leaves: Understanding the Heterogeneity of Gig Workers Through Capital Mobility” (2023) 49:1 Critical Sociology 23.

20. Online: https://www.boardoftrade.com/files/ advocacy/2023-gig-economy/gig-economy-mar2023.pdf#view=FitV

21. See “A Path Forward for the Gig Economy in British Columbia” (March 2023), Greater Vancouver Board of Trade, online: <www.boardoftrade.com/files/ advocacy/2023-gig-economy/gig-economy/mar2023.pdf#view=FitV>.

22. Ibid

EVERYWHERE BUT AFTER*

By Eric Kroshus

Death was lonely. For some time he’d suspected as much, but it wasn’t until he paused to watch the coda of a plum-purple dusk outside an alpine village that he accepted the gnawing emptiness in his stomach for what it was. He stood perfectly still as the last light dissolved into night, and then he stood longer still in the inky black, feeling stinging shards of snow falling sideways on the freshly roused wind. Then, he decided that he couldn’t face the long journey ahead, alone through the serrated dark, and so he turned back toward town.

He wandered the empty streets covered in fresh snow tinted apricot by the soft glow of latticed lanterns lining the street like a string of incandescent Fabergé eggs. Death sensed the muffled thrum of conversation nearby, and so he bent his trajectory in that direction. The murmur of interwoven voices grew into a hum, and as he drew nearer, he noticed a globule of honeyed light oozing out of an unshuttered window and onto the street. Death meant only to glance through the window as he strode past, but as he approached the window, it was as if he actually were wading through honey. He slowed to a stroll, then a crawl, then to a pace most generously described as idling.

Death knew he wasn’t welcome, but he couldn’t help but linger in the light. He watched as barrel-shaped men gripped vast flagons of mead, amber liquid splashing onto rough oak tables as the men tipped their heads back and sprayed great geysers of laughter across the room. Later, through a different window, he saw a few adults clustered around a bronzed turkey, scratching their heads and giving it dubious pokes like weekend mechanics around an open hood. Through another, he saw an old couple huddled together on a couch, watching a movie from their youth.

Each window revealed a different scene, though the ratio remained the same: fellowship inside, Death outside. Alone. Apart . Still, as he gazed through each frosted window, Death sometimes felt the separation flicker, and though he still ached with loneliness, he smiled. If he lingered undetected for several minutes, the flicker lingered too, a warm glow expanding,

* This story won first place in the 2023 Advocate Short Fiction Competition.

invigorated as if by a glassblower’s breath and then fashioned into a fragile glass animal which would keep Death company for a time. More often, someone would spot him immediately, screaming or rushing over to slam the shutter in his face. Mostly, he was conspicuously ignored, as if even a glance at his face was too horrifying to risk. Death was used to such reactions, but each time he felt lonelier still, pulling his hood tighter as he slunk away.

After another slammed shutter, Death decided he’d overstayed even his unwelcome in the village. The once roaring wind was now tamed, reduced to nothing more than a meek flutter. Plump snowflakes fell like languid confetti. His duty lay elsewhere: it was time to go.

At the edge of town, Death stopped for a break near a home tucked away within a grove of cedars. Like a minnow drawn to an angler fish’s glowing lure, Death mindlessly drifted toward the feeble light flickering through a single unshuttered window. As he drew near, he saw that the light was cast by a handful of paraffin candles. He peered inside: subdued people clothed in black sat on low stools, speaking in hushed tones. A golden retriever was curled on a mat by the wood fire. Black sheets were draped over the walls in several places, covering what Death suspected were mirrors.

A few people glanced in his direction, but Death sensed neither fear nor hostility in their eyes. He wasn’t a welcomed guest, but his presence was accepted. As Death surveyed the room, he noticed a boy of around seven staring at him. Seeing that he’d been spotted, the boy walked toward Death without breaking his gaze.

“Did you know my grandma?” the boy asked. Death nodded. “Come in then – we’re sitting shiva. There’s lots of food and it’s warm inside. You can pet Akiva if you want, he’s by the fire,” he added with great seriousness.

From then on, Death had a friend. Although his duty drew him away frequently, he returned to the village as often as he could. He lived for the days he and the boy wandered about town with Akiva, transforming the village into their own secret world. Or they’d hike through alpine meadows, reveling in the fresh air, marveling at the delicate flowers which bloomed in the midst of indifferent granite. Sometimes, they’d merely throw a stick for Akiva, delighting in his delight at the most simple of pleasures.

Death was happy. He didn’t even mind when the boy asked him to lower his hood so he could see his face. Death always politely declined—although he’d never seen it himself, he was afraid to show the boy the face everyone else was too scared to even glance at. As their friendship deepened, Death forgot the feeling of loneliness, and although he knew it was silly precisely because of who he was, Death secretly hoped their friendship would never end.

After seven years, it did. Every quarter, Death received a list of names to cross out before the next season. As he scanned the new list absentmindedly, a name suddenly leapt off the page. Death looked away and then back again, praying he’d misread the name even though he knew he hadn’t.

The next three months, Death returned to the village as much as possible. Each time, he avoided his unavoidable duty, putting it off until the next time, and when the next time came and went, he always convinced himself he needed just one more next time to savour.

As the final leaf fell from the boy’s favourite aspen tree, the next times ran out. Death knew he could no longer avoid his duty, but he could make the end peaceful, and so he found a quiet spot in the forest near the boy’s home. He laid down a soft blanket of pine needles at the edge of a stream dancing with flecks of golden light, and then he waited for the boy.

Soon, Death heard the boy calling out “Akiva, where are you?” A minute later, the boy entered the clearing, smiling and waving once he spotted Death. Death began to shake, and he thought he might be sick. The boy took a few more steps and his smile vanished.

“Akiva!” he screamed, rushing toward the spot where the dog lay. He cradled Akiva in his arms, tears streaming down his face. Death looked away, unable to bear the pain.

“What have you done?” the boy sobbed.

Death searched desperately for something to say, but his mind was blank. He wanted to tell the boy he was sorry, to explain that he had no choice, but his rehearsed lines now escaped him. Instead, he bowed his head, too ashamed of what he was to face his friend.

“You take Akiva, but you can’t even look at me?” the boy cried. Death pulled his hood tighter. “I don’t need to see your face to know what you are,” the boy said. “You’re a coward, and I never want to see you again!”

As the years passed, Death continued to fulfill his duty—from this there was no escape—but the shame from that night was seared into him. It was not just a stain on his character—his character was a stain on the world. He was the worm at the core of life, and he always had been. Death was lonely again.

The boy, beneath his anger, was also lonely. But as the weeks passed, the past’s sting lessened and the future’s glimmering promise pulled him back into the rush of life. Moment by moment, day by day—and then suddenly, all at once—the boy became a man. He went to college possessed of thrillingly vague notions of becoming a doctor which vanished when they came face to face with a cadaver. After wandering through diverse fields in search of a major, he stumbled into anthropology. He learned about tablets

of clay and paintings in caves, carbon dating and polyandrous mating, burial sites and the afterlife and of course, he examined pottery shard after pottery shard. He learned, in short, everything that it was to be human, and then in the summer of his junior year, he fell in love. The following spring, as the frozen river thawed and Caribbean blue eggshells cracking like ice heralded new life, the world seemed unbounded and eternal. Then, in quick succession, his heart was broken, and he graduated to find the six-figure job market for anthropologists wanting. He was adrift, working variously as a tutor, a tour guide and a minor league mascot named Odin, all the while trying and failing to envision what his life might look like at the impossibly old age of forty. The next fall, he went to law school.

Although he never forgave Death, he never entirely forgot him. Months would pass without a thought to his old friend, and then, in a quiet moment after a raucous night out, he would remember Death. During one such fit of nostalgia, he got a memento mori tattoo. His parents warned him that he’d regret the tattoo when he was older, but he knew they were wrong: he regretted it immediately. Afterwards, if he ever found himself shirtless near a mirror, he averted his eyes, and soon the avoidance was so instinctual that he often forgot he even had a tattoo.

At first, he dabbled in wills and estates, but he soon shifted into corporate insolvency, where he built a reputation as a tough but fair advocate. The law fascinated him. He pictured it as a mural on the ceiling of an enormous dome upon which was painted all the drama of human life. And yet the law existed beyond any single life, like an ever-evolving Sistine Chapel. His job was to repair it, touch it up here and there, and then occasionally extend his little corner of the law. As he climbed the stairs to his office every morning, he imagined himself as Michelangelo, humbly ascending his ladder for a day’s work.

He married, made partner, had kids. Forty became a harsh reality then a wistful memory. He bought his son his own golden retriever with the point of one ear folded down like a wink. The ink on his tattoo faded and his skin sagged and folded until the tattoo became truly invisible. His children grew up, moved out, started families of their own, and then, while she was pulling radishes out of the moist dirt on a pleasant Tuesday afternoon, his wife died.

Although his work was done, Death stayed for the funeral. He wanted to apologize to his old friend, but he couldn’t find the right moment, and so he stayed in town while the old man sat shiva, lingering outside his window, waiting. On the fourth day as the sun started to set, the old man stood up abruptly and strode outside to confront Death.

“You’ve taken Akiva, my parents, my friends,” he spat, “and now you’ve taken my wife before she could watch her grandchildren grow.”

“I-I-I,” Death stammered.

“And still, you won’t take off your hood! You take everything from me, but you won’t look me in the face!”

Death bowed his head. “I’m sorry,” he whispered, but the old man wasn’t listening.

“I guess it doesn’t matter,” he sneered, “I’ve always known what you are.”

He was right, Death thought, he was a coward. Death turned away, but as he began to leave, he heard a sob. He looked back and saw that the old man, the only person who’d ever shown him any kindness, was crying. A flood of compassion rushed over him, and so Death reached up with trembling hands and took hold of his hood.

As his hood fell away, there was a glint of light and the old man gasped and staggered backward. There, staring back at him, was his own face. Death reached to pull his hood back up—what a horrible mistake he’d made—but the old man asked Death to wait, and so he did.

He approached Death slowly, and the face staring back at him—his own face—grew larger. He paused, stroking his chin in thought, and the face staring back at him did the same. It’s a reflection, he whispered, but why? He leaned forward toward Death, and as he examined his reflection, his eyes tracing the endless hieroglyphics of his wrinkled skin, it all made sense.

Death had been by his side all along. He was not Death, but he was nothing without him. The lined face staring back at him was fashioned not just from his past, which already belonged to Death, but from each potential past he’d discarded in choosing his future at every point throughout his entire life. Death wasn’t just waiting at the end, he was present for this moment and this moment and this moment and every moment wherein the man died and was born again, over and over. Death was not an executioner—he was a sculptor. And so all those times he’d raged at Death, he’d been raging at himself. And every time he ignored Death, he’d been denying his own true nature.

All this made perfect sense to the old man, but when he tried to explain it to Death his words sounded garbled, and he knew that Death did not understand. You are a mirror, and every separate part of life is reflected in your face, the old man kept repeating to no avail. Then, possessed by an idea, he rushed back inside and flung away a black cloth which had been covering a fulllength mirror. There were gasps as he pulled the mirror off the wall, and then the old man carried it back outside trailed by a wake of bewildered faces.

He placed the mirror against the house and then turned toward Death, motioning for him to come closer. Once they were standing side by side, he

explained that once Death looked into the mirror, he would understand his true nature. Although Death was afraid, he nodded, and then, on the count of three, they both spun around and looked into the mirror.

For a whole minute, both of them stood still in stunned silence. Both of them saw the old man in the mirror, but neither could see Death reflected. And then, all at once, they both understood. The old man smiled at Death, and Death smiled back.

ЖЖЖ

SPOT THE LAWYER: THE ANSWER

By Joseph C. Bellows, K.C.

In the March issue of the Advocate (2024) 82 Advocate 199–200, you were invited to identify my classmates from a 50-year-old photograph taken of us in first-year law school (1971). How did you do?

The “who’s who” is found in the legend on the following page. So young…

ANSWER KEY

22. Al Peterson 23. Thomas (Tom) Roper, K.C. 24. Bruce Russell 25. Doug Schofield 26. Sid Shook 27. William (Bill) Smart, K.C.

27. (former B.C. Supreme Court judge)

28. Lon Smith 29. John Tait 30. The Honourable Judge Rory Walters 31. John Warshawski

1. Pat Beirne 2. Joseph Bellows, K.C. 3. Janet Biga 4. Ron Bozzer 5. His Worship Malcolm 5. Brodie (Richmond Mayor) 6. Andy Croll 7. Patrick Delsey 8. Nathan Ganapathi 9. Mike Green 10. The Honourable Justice William (Bill) Grist 11. Eric Heringa 12. Roberta Hundret 13. Dale Kermode 14. Derek Lacroix, K.C. 15. Terry Laliberté, K.C. 16. The Honourable Justice Linda Loo 17. Ross Manson 18. The Honourable Judge 18. Parker McCarthy 19. The Honourable Justice 19. Mary Newbury 20. Karen Nordlinger, K.C. 21. Richard (Rick) Peck, K.C.

FRANKENSTEIN’S FOLLY: A LESSON IN HOW TO AVOID SCORCH-THE-EARTH LITIGATION

By Leslie Palleson

Empathy. They don’t teach it in law school. It means understanding what someone else is feeling and showing some compassion for those feelings, whatever they are. Not sympathy, not pity. Definitely not telling someone how to solve their problem. It’s just being with them. Nonjudgmental. Understanding. What’s the point? If this is your thinking, you’re not alone. It could be you’ve modelled your behaviour after some of the greatest protagonists in classic English literature. Like epic legal battles, good stories depend on shaky conflict resolution skills. Case in point: Frankenstein.

If you need a refresher, Frankenstein, the ambitious, ego-driven doctor created by Mary Shelley when she was all of 18, pieces together cadavers stolen from graveyards, adds a dash of occult knowhow, and—tada!—creates a walking, talking humanoid with immense physical power, an alarming intellectual capacity, significant anger issues and a hideous jawline (the “Creature”). Horrified by his creation, Frankenstein abandons the Creature to the vagaries of the cruel world, and thinking no more of its fate, attempts to resume his life, but the Creature tracks him down, enraged at having been abandoned in a form so monstrous that getting a date is, well, challenging.

Any good story requires conflict. Unfortunately, for Frankenstein, not to mention all those people he loves that the Creature eventually kills, a good story also requires hopelessly deficient conflict resolution skills. This makes sense. Watching a prolonged discussion where two parties seek to understand one another and come to the classic “win-win” solution is dullsville. However, two parties making demands, or one party demanding and the other outright refusing, sending one or both off brimming revenge and hatred, well, this is the titillating stuff classic literature is made of. Just like those classic let’sappeal-this-all-the-way-to-the-highest-court-in-the-land legal battles.

The Creature, riddled with loneliness, unable to escape its abhorent physicality and make friends, tracks down Frankenstein in the freezing shadow of Mont Blanc where they convene in an isolated hut surrounded by ice. The conversation doesn’t exactly get off to a great start. “Ah, horrid

monster. Fiend that thy art” is hardly a good collaborative opening, and Frankenstein physically attacking the Creature doesn’t help either, but the Creature exercises control, wanting to be heard. “Be calm. I entreat you to hear me,” the Creature says, obviously understanding better than Frankenstein about how to set the tone for a reasonable conversation. To his credit, though, Frankenstein finds himself curious, feeling some compassion, and respectfully does not interrupt the six long-winded chapters where the Creature explains that, in a nutshell, life sucks. From a conflict resolution viewpoint, for that brief moment, hope reigns. Unfortunately, hope then crashes after the Creature makes his demand, what he perceives as the cure to his wretchedness. He wants Frankenstein to make him a female mate.

Enter internal conflict for Frankenstein, for all good protagonists must wrestle with a dilemma, in this case, compassion for his creature versus the horror of the request that Frankenstein assemble another monstrous killing machine to roam the earth. Give into the demand? Or refuse the demand? And so, caught in the erroneous belief that there are only two ways to deal with conflict—fight it or cave in—Frankenstein ultimately refuses.

Outrageous demand plus outright refusal equals revenge and hatred, the perfect vehicle to showcase the thematic interests of Shelley’s era, such as alienation, revolution, all those nature themes, creating this classic novel still read by kids in high school. But what if Frankenstein (and the 18-yearold Mary Shelley) had understood that peaceful resolution of conflict does not have to mean caving in to impossible demands, and had instead simply engaged in some show of empathy? Something like: “Gosh Creature, sounds like you’ve been attempting to make friends and have been horribly rejected. You must be so lonely. That sucks.”

What could follow? The Creature inhales, exhales, takes a seat on the floor of the hut, and for an instant that jawline seems to loosen, ugly still, but not as rigid. The Creature feels understood, not quite so alone, the tension notches down. Frankenstein might slide down to the floor too, and just be there in this moment, feeling what the Creature is feeling.

Sure, the Creature had recently murdered his brother and caused the death of an innocent girl, making it understandably more challenging for Frankenstein to offer the Creature empathy. That said, it still would have been a good idea. Even if the Creature and Frankenstein couldn’t reach a resolution, had the Creature gone away feeling like Frankenstein understood his plight, he might not have been so keen to murder Frankenstein’s best friend. After all, in Chapter 17, the Creature even says: If any being felt emotions of benevolence towards me, I should return them a hundred and a hundredfold; for that one creature’s sake I would make peace with the whole kind!

Peace with the whole kind! Just for some “benevolence”! Any interpretation of this statement surely means no more killing. And Frankenstein could take this even further.

For instance, a little acknowledgment would only bolster the good feeling: “By the way Creature, I just want to say, I’m really impressed by all the knowledge you’ve amassed and the eloquence you’ve developed in just two years, without any kind of formal learning.”

Uhmmmmm, Frankenstein, ever heard of the power of apology? (A real apology not laced with “but”) “Gee Creature, I am so sorry for all you have endured, and if I could go back in time I would never have abandoned you. Regardless of the emotions I was dealing with, I should have done things differently. I must apologize for my behaviour.”

It could be that this Creature, who finds joy in natural settings on spring days, might have been content to roam the world as a solitary creature had he just been offered that empathy, especially if peppered with acknowledgment and apology. Then he would have been seen for who he was, a creature of great sensitivity and an overall good guy. Sometimes that’s all it takes.

In any event, that heartfelt bit of empathy and apology would have helped move the Creature away from the fight, flight, freeze of the limbic system and allowed him to engage with the prefrontal cortex that surely came with overall package scavenged from graveyards. If only Frankenstein, instead of being wholly subsumed at Ingolstadt with becoming a science superstar, had made time for the briefest study of human behaviour and taken a course on conflict resolution, he might have calmed the Creature with empathy and even gone the next step to embark upon a hard on the issue/soft on the Creature discussion that might yield a win-win solution. In this case, he might follow up with an open question, to shake the Creature off his position and get to the core human/Creature interests, like “What’s important about a mate?”

The Creature looks up, his greyish complexion lit by the fading sun. “You know how it is. I need someone to be with. Someone to share my ideas with.”

“Sounds like you need companionship.”

“Yeah. That’s it. You get me!”

Companionship! Way to go Frankenstein, moving the Creature off his position and uncovering that deep human need!

This could be where Frankenstein gets the opportunity to exchange some important information with a Creature now softened up and willing to listen. “You know, I don’t have that much control over what I produce. I can’t promise to mint a mate you’d be able to have a reasonable conversation with, and not only that, she could turn out to be a bloodthirsty killer. And even if I did produce someone, who, like you, appreciates Milton and the finer things in life, you don’t know what it’ll be like to be interminably stuck

with this same personality by your side year after year after year. It’s not as great as it seems. Have you seen the divorce rates these days?”

Time to look for common ground. “Now, it makes sense you’d need companionship, like I said, I really didn’t mean to cause so much suffering. Neither of us want you to suffer, and I’m also concerned about causing even more suffering.” And then assert his own interest: “It’s important to me to create joy and happiness, for you, for the family of any further victims, and who knows what the temperament of another creation might be? It might not be the hot date you’re looking for and might kill people, like you did, not to dwell on that, just saying.” And find a resolution based on interests and not positions: “How about we brainstorm some solutions that meet your need for companionship at the same time as meeting my need to keep the world a peaceful happy place.”

“Sure.” The Creature shrugs. “What’s to lose?”

Frankenstein: “You know, if we go back to the lab, I could probably do something about that rectangular head and soften up the eyes.”

“Maybe then I can hang out with you and your friends.”

“Uhhhhh, I bet you could be an enormous service to tree clearing efforts of the agricultural sector, especially if you go over to the New World where they have whole forests of those nasty trees they need to take down. I could introduce you in the right way to the right people, not say anything about the cadavers, you know. I’d miss you, of course, who wouldn’t, but you’d get to know people that way and they’d appreciate you.”

“Maybe I could come live with you and your soon to be wife. If you have children I could teach them to read.”

“Well, we’re brainstorming so let’s write that down as a possibility, though I got to tell you that my wife-to-be made me promise not to bring work home from the office. It’s in the cohab. But, you know, in about 50 years a sport will emerge in the New World and you’d be a shoe-in. It could mean 53 ready-made drinking buddies if you make it all the way to the NFL.”

Alas and alack, gentle reader, it doesn’t go this way. Knowing nothing about the power of empathy or all the choices that open up with application of good conflict-resolution skills, and stuck in a reality where only two opposing responses to conflict seem possible, Frankenstein attempts to comply with the demand, and when he cannot bring himself to do so, refuses, setting the Creature on a path of destruction. As the Creature goes about killing everyone that Frankenstein loves, Frankenstein reflects: “I had been the author of unalterable evils; and I lived in daily fear, lest the monster whom I had created should perpetrate some new wickedness.”

Rather like litigation run amuck in the mud of endless applications and appeals.

THE WINE COLUMN

By Michael Welsh, K.C.*

Rather fail with honour than succeed by fraud.

— Sophocles

CANADIAN WINE CONFUSION

This turns out to be the second of a two-part discussion of the state of the British Columbia wine sector. I had not intended to carry on with a subject related to my last column, but life seldom sits still, and a lot is happening in the B.C. grape and wine community right now.

In my last column, I detailed the current environmental and cultural crises in the grape and wine industry in British Columbia and elsewhere. In our province, three vine-killing winter freezes have decimated many vineyards in the Okanagan and Similkameen areas. I mentioned in my last column that some wineries, facing the prospect of another year with no crop, have been looking elsewhere to obtain grapes for their wine. This includes discussion about importing grapes from Washington state or from Ontario.

Wineries that are licensed as being land-based (as opposed to commercial) must produce 4,500 litres of wine each year to maintain their licences. That will not be possible for many this year if they cannot access B.C. grapes. As a result, as I write this in late March 2024, there are lobbying efforts underway to have the B.C. Liquor and Cannabis Regulation Branch waive this requirement in these extraordinary circumstances, allowing

* 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.

wineries a dispensation from this minimum requirement for a year or two while their vineyards recover.

In March 2024, the B.C. government also committed up to $70 million for replanting of vineyards and orchards.

Some wineries are also urging the government to change the regulations to allow them to import grapes or juice from outside British Columbia for winemaking in this coming year, so that they have product to sell. As much as this is a sympathetic cause, to me, for the reasons I said in my last column, it remains a detrimental move that will further confuse wine consumers wanting B.C. wines:

To help sustain themselves following the more recent and more destructive cold snap, some winery owners and winemakers are urging the B.C. government to change regulations to allow them to import grapes or juice from outside the province.

That proposal is controversial, as some say it could confuse consumers about which wines are from B.C. grapes, and therefore diminish the value of the B.C. Vintners Quality Alliance designation.1

At present, to qualify for B.C. VQA certification, the grapes must be from British Columbia, and for designated regions such as “Okanagan Valley”, “Similkameen Valley”, “Fraser Valley”, or subregions like “Naramata Bench” and “Golden Mile” be from those regions and subregions. This gives consumers an assurance of the locale of the wines. But not all wineries seek B.C. VQA certification, and those that do not are labelled “Product of Canada”. This can include some of the best B.C. wines from boutique wineries. However, this is where confusion arises. For if you walk through the socalled “Canadian” or even “B.C.” wine section in most liquor stores, especially the government ones, you will see a large number of wines in the “Canadian” or “B.C.” wine sections (often right beside the VQA wines) that are not Canadian in origin. They are the dirty and not-so-little secret that keeps the commercial winery sector alive.

These include the infamous “bag-in-a-box” wines and large-size bottles from winery conglomerates such as Pellar Estates, Mission Hill and Jackson-Triggs (owned by Constellation Brands). In addition to using their own label names, they also include a multitude of labels to pick up on the latest trends in wine drinking, such as “Heron Bay” (sounding very New Zealandlike), Bask, Sawmill Creek (an actual creek in the Golden Mile area of Oliver-Osoyoos) and Black Cellar (sounding Aussie-like), along with names like Bodacious, Naked Grape and Copper Moon. It is often hard to tell that these wines, or others like Honest Lot or Invisibull, are not in fact from British Columbia unless you read the very small print at the very bottom of the back label. Most will come from one or two winery blending operations

in British Columbia (in Oliver or Kelowna) or their counterparts in other provinces, and will say “International blend from imported and domestic wines”. In British Columbia, those wines can contain as little as one per cent Canadian wine. Most is wine shipped from Chile, Spain, South Africa, Argentina and the United States and is at best of mediocre quality (and cheap), and then blended at these Canadian wine factories into a predictable, bland and somewhat drinkable product.

In what is perhaps a small step to truth in labelling, the labels used to say “Cellared in Canada” but no longer do. Given they have nothing to do with Canadian wine, this was an egregious misnomer. Without those words, labels are now slightly less misleading.

While wineries are looking to import U.S. grapes, the misleading labelling of wine is not just a Canadian issue. Across the border it is a huge problem. Nearly 68 million gallons of foreign bulk wine was imported by California wineries in 2023 to blend with some local product into “American wine”, while at the same time some 400,000 tons of local grapes went unharvested. California vineyard owners are having to rip up vineyards as the wineries would rather pay less for wine abroad than to their local growers. The biggest offenders include Gallo, Constellation Brands and the Wine Group, which put out their U.S. versions of the cheap bag-in-a-box wines that unfortunately also make it into our friendly LDB stores.

Unfortunately, many of these foreign-sourced wines are mixed in on the shelf with the domestically sourced wines so the consumer is likely not even aware of where their wine was grown. Or they may be inadvertently purchasing a wine believing they are supporting California farmers.2

No wonder U.S. growers are eager to sell their grapes to British Columbia.

There have been discussions over the years among the wineries and winery associations in Canada about a Canadian wine designation system, in addition to the provincial ones in place (B.C. VQA, or VQA in Ontario, or “Tidal Bay” in Nova Scotia), where wines can be made from grapes grown in any Canadian wine region. With the current crisis here, and surplus grapes in Ontario, apparently those discussions have ramped up again this year. However, as B.C. wineries get certain government discounts for wines exclusively from B.C. grapes, and Ontario and Nova Scotia have their own incentives for their wineries, those discussions will necessarily involve intergovernmental cooperation. In an era where we still have interprovincial trade barriers for wine, that may be difficult. But if it comes to pass, then tankers of grape juice may traverse the country for far-off winemaking.

As Vancouver Sun wine critic Anthony Gismondi stated in a column sometime back:

Now that Canadian wine has been differentiated from cheap off-shore juice that arrives below the water line of huge tankers, maybe we could get on with some meaningful national wine laws that authenticate the origin of every wine made in Canada based on a single national system.3

Not all B.C. wineries are enthusiastic about this idea, however:

“What we’re asking for is special dispensation to be able to bring in fruit from, it could be Ontario, it could be Washington, it could be Oregon,” David Paterson, general manager and winemaker at Tantalus Vineyards in Kelowna, told Northwest Wine Report earlier this month.

There are other considerations for British Columbia, such as how the wines might be labelled and to whom they might, or might not, be sold to. “It all has to be 100% transparent,” said Nikki Callaway, winemaker at O’Rourke Family Estate in Lake Country. “We probably can’t export the wines. It probably can’t be sold elsewhere.”

…..

“I will not buy grapes in Ontario,” says Callaway. “I don’t see the benefit of travelling four days across the country just because they’re Canadian grapes.” She also noted that Washington and Oregon share similar terroir to the Okanagan Valley.4

In Washington, the state winegrowers’ association is formalizing with the state and federal governments how to clear roadblocks in that country for exporting grapes and grape juice to British Columbia. With B.C. wineries desperate for grapes, it does seem that a season or two of some wine made in British Columbia from Washington-grown grapes is in the offing. As I also noted in my last column, Washington growers, who had substantial surpluses of grapes that were never harvested last year (estimated in the tens of thousands of tons) due to losing their contracts with St. Michelle Wine Estates, are keen to sell to those willing B.C. wineries.

All in all, an interesting and very confusing time awaits B.C. wineries, and especially wine consumers, as the local wine sector struggles for survival.

Here are a few “truth in advertising” wines that still reflect their locales:

CORTESE DI GAVA - VILLA SPARINA 2021 DOCG Gavi, Piedmont, Italy #440152 $24.99

According to Wikipedia, the name of this wine derives from Gavi, a commune in the centre of its relatively small production zone (2,666 ha), and Cortese, the grape from which the wine is made. It is some 50 km north of Genoa on the Mediterranean. The current style of production dates back to 1876. This wine is very mineral-driven on the nose mixed with melon, ripe pear and floral notes. And on the palate is green fruit (lime, green apple and some gooseberry), more minerality, a bit of burnt honey and a whiff of lanolin. It has a soft but bright lemon-lime finish. Recommended food pairings

are oysters or sushi to go raw, or most lighter seafood or fish dishes like sautéed prawns or lobster in garlic and butter. A variation might be artichokes with melted butter.

CHATEAU STE. MICHELLE CHARDONNAY 2021

Columbia Valley, WA #232439 $23.99

I thought it was time to review a typical U.S. Chardonnay and chose this decently priced one from the author of Washington’s grape oversupply problems. Perhaps it will give an indication of what to expect if wine is made in British Columbia from Washington grapes. Pale gold, it has nose of butterscotch, canned pineapple and apple pie with baking spices with hints of oak. The rich palate displays red apple, spice and tropical fruit with butter and toasty oak. The finish is long and full. It is not overdone on the oak, a nice change for U.S. chards. Canadian wine writer Natalie Maclean awards it 90 points. Enjoy with a roast chicken or salmon, halibut and tuna, or a pesto pasta, or veal chops in a mushroom sauce.

LOCK & WORTH CABERNET FRANC ROSÉ 2022

Product of Canada, Naramata #1019489 $25.00 (approx.)

This smaller winery is one that has not sought B.C. VQA certification but is a genuine article that sells wine made from its own vineyard grapes. The vineyard was planted in 1995 by Poplar Grove before it moved from this location to its present one in Penticton. The wine, as with all Lock & Worth wines, is unfiltered and unfined. With only three hours of skin contact and fermented in a mix of stainless steel and old oak barrels, it is of a pale orange-pinkish hue with aromas of wild strawberry, peach, orange peel and wet stone, and flavours on its crisp palate of yellow peach and light cranberry, leading to a long and full, almost sweet finish. Have it with Asian (Chinese or Vietnamese), Moroccan or milder Indian foods, or a cracked crab, or (now that we are coming into summer) gazpacho, or just a plate of cheeses and olives. Available online from the winery (for the best price) or at private stores including Marquis Wine Cellars, Franco’s Liquor in Kelowna and Everything Wine.

GHOST ROCK SUPERNATURAL WILD FERMENT NATIVE PINOT NOIR 2022

Tasmania, Australia #466836 $35.00 (approx.)

This is an unusual, very peppery version of a Pinot, almost like a Gamay. It is medium red, with loads of black pepper, sour cherry, cranberry, red currant and spice on the nose, along with some tea-like tannins and a touch of

vanilla. At twelve per cent alcohol, it has a light and vibrant palate, with more red currant, some rhubarb, strawberry, a hint of mushroom and a long spicy finish. Pair it with salmon, char or steelhead, or with poultry or hard cheeses. It is available at private stores such as JAK’s, North Shore Liquor Store or on select wine lists including RimRock in Whistler.

PIRRAMIMMA SHIRAZ 2020

McLaren Vale, SA, Australia #607093

$29.99

A rich Aussie Shiraz, this comes from one of Australia’s oldest wineries, founded some 130 years ago. It is aged in a mix of French and American oak from estate grown grapes. Dark purple in colour, the wine has a full nose of blackberry, black currant, black cherry, vanilla, oak and spice, with a bit of graphite. On the bold palate are more black cherry, black currant, black plum, black tea, some dark chocolate, and more vanilla, leading to long and fulfilling finish with firm tannins that avoid the sweetness so often found with Australian and U.S. wines these days. It is perfect for a BBQ with steak or ribs or lamb.

CLOS DU SOLEIL SIGNATURE 2019

B.C. VQA Similkameen Valley #315820 $55.00 (approx.)

The Similkameen was hard hit, and its wines, especially whites, will be hard to find in the next couple of years. This Meritage blend is a big wine (13.9 per cent) labelled by the winery as its “flagship”. Hand-harvested and aged 18 months in French oak, the blend comprises Merlot (forty-two per cent), Cabernet Sauvignon (thirty-one per cent), Malbec (thirteen per cent), Cabernet Franc (ten per cent) and Petit Verdot (four per cent). Each variety was harvested and vinted separately in concrete vats, then blended and aged 15 months in French oak. The aromas are of black cherry, plum and ripe raspberry overlaid with subtle vanilla and oak. The tart bright flavours are again of raspberry, cherry red currant and red plum with hints of bitter chocolate and desert sage leading to a smooth, long finish. Try it with lamb shanks, or roast duck with foie gras, or go downscale a meaty pizza. It is available from the winery, the B.C. Wine Information Centre and many other private wine stores such as Everything Wine.

CHÂTEAU LE CROISILLE LE CROIZILLON MALBEC 2020

AOC Cahors, France #491817 $30.00 (approx.)

Translating the back label: “A wine for thirst and friends. Malbec from the terroirs of the Lot Valley and the limestone plateaus of the Cahors appella-

tion.” This southern French style from the ancestral home of Malbec is very different from the oaked Argentinian versions. It is made from organically grown grapes of 30-year-old vines grown on the limestone benches at Fages and Luzech above the city. The wine was aged six months in a mix of concrete and stainless steel vats and is in the popular French style that sees no oak. It has a nose of black cherry, blackberry with some spice and green tobacco. The medium-bodied palate with moderate alcohol (12.5 per cent) displays tart bright fruit of cherry, plum and berries, with hints of green tea and a lifted finish. Try it with a grilled steak, or sausages and a ratatouille (which we did), or a mushroom risotto, or Greek or Spanish food to make an international event of your dinner. It is available at select private wine stores such as New District on Dunbar (I found it at the Hope Liquor Store).

INNISKILLIN DISCOVERY SERIES ZINFANDEL 2017

B.C. VQA Okanagan Valley #584433 $28.00 (approx.)

Zin is relatively rare as a B.C. wine. This is a limited release of 2,200 bottles from the winery’s Okanagan Estate vineyard. It is holding well for its age and will last another three to five years but is great for drinking now. It has aromas of cherry, vanilla, red currant and spice. On the palate it has medium body, ripe mellow berry and cherry and some plum, with some light tea tannins and more vanilla and a bit of toasty oak. It is not complex and it finishes a bit sweet, but it is great for the BBQ. So light it up and grill some beef or lamb or game. The winery also recommends ribs, pulled pork and strong-flavoured, hard cheeses. Available online from Great Estates Okanagan or again the B.C. Wine Information Centre, or at private stores such as Save-On Foods.

ENDNOTES

1. Glen Korstrom, “B.C. Wineries Plan Survival Strategies Following Deep Freeze”, Business in Vancouver (21 March 2024), online: <www.biv.com/news/bcwineries-plan-survival-strategies-following-deepfreeze-8467290>.

2. Stuart Spencer, “Imported Foreign Bulk Wine: The Dirty Secret No One in California Is Talking About”, Lodi Wine Growers (18 March 2024), online: <lodi growers.com/imported-foreign-bulk-wine-the-dirtysecret-no-one-in-california-wine-is-talking-about/>.

3. Anthony Gismondi, “The Death of Cellared in Canada”, Gismondi on Wine (13 March 2018), online: <gismondionwine.com/blog/the-death-ofcellared-in-canada/>.

4. Sean P Sullivan, “With British Columbia Needing Grapes, Washington Offers Assistance”, Sean P Sullivan Northwest Wine Report (22 March 2024), online: <https://www.northwestwinereport.com/ 2024/03/washington-offers-british-columbia-winegrapes.html>.

NEWS FROM BC LAW INSTITUTE

By Ed Wilson*

In January 2024, the Canadian Centre for Elder Law (“CCEL”), a division of the BC Law Institute, released our Dementia + Decision-Making Project in time for Alzheimer’s Awareness Month. This project is the result of three years of research and community consultations to learn how we can empower people living with dementia to engage in decision making about their care. This is especially important because of the alarming statistics surrounding the population of those living with dementia in Canada. According to the Alzheimer Society of BC, it is forecast that by 2030, nearly 1 million people in Canada will be living with dementia, and by 2050 the number will be close to 1.7 million.1 In British Columbia, we expect a 218 per cent increase in the number of people living with dementia by 2050.2

We are incredibly proud of the resources developed for the Dementia + Decision-Making Project, which will benefit those living with dementia and those who support them. We are grateful for the contributions of our Dementia Advisory Council: Jerry Gosling, Mario Gregorio, Lynn Jackson, Myrna Norman, Craig Burns (2020–2023) and JP Daem (2020–2023). We would also like to thank our project partners: Alzheimer Society of British Columbia, Centre for Research on Personhood in Dementia and Family Caregivers of British Columbia. This work was coordinated by Jess Fehrenbacher in 2021 and 2022 and led by our former CCEL National Director Krista James between 2020 and 2022. Kelly Melnyk, our CCEL Director in 2023, drafted the tools and resources, and saw the project through to completion. Lastly, this project was made possible with the financial support of the Vancouver Foundation. We are grateful to them all.

As legal professionals, we are always concerned with whether our client has the requisite capacity to make a legal decision like executing a power of attor-

* Ed Wilson is the chair of the British Columbia Law Institute.

ney or signing land transfer documents. All people are capable until proven otherwise, and many factors can impact an individual’s capacity for a variety of decisions. This is no different in the health care setting, where the health care provider is responsible for assessing whether the patient has capacity to provide informed consent to treatments. In our consultations with people with lived experiences, supporting a person with dementia in making decisions happens when it becomes uncertain if the person has capacity and a health care provider is not confident the patient can provide informed consent. It is in these grey areas that health care providers and family or friend caregivers can step in to support a person living with dementia to make decisions about their care before they transition to decision-making options.

In practice, when clients are executing a representation agreement, advance directive, or even power of attorney, it is important for a lawyer to explain a client’s rights, such as the appointee’s duties and being consulted by their appointee about decisions for as long as it is reasonable to do so. Equally important, however, is ensuring that an appointee understands the duties and responsibilities of being a representative or attorney and when it is appropriate for them to act. This knowledge gap leaves many appointees who support a person living with dementia without proper understanding of where their role and the duty they owe to the person they act for begins and ends.

Legal professionals regularly explain to a client or family member that they do not get to make personal or health care decisions by virtue of being an attorney. Or as a representative, they may not be able to make legal or financial decisions based on the type of representation agreement in place.

Through this project, we learned that health care providers often find themselves navigating these complexities among family or friend caregivers and appointed representatives when the time comes to make substitute care decisions. This leaves the health care provider in a position of having to explain the legal implications of substitute decision making to a family member or friend. This is difficult when the family member or friend believes they should be the one making decisions but do not have the legal authority to do so.

We also identified barriers that impede participation in decision making, including barriers faced by those who support people living with dementia. Key barriers were knowledge of decision-making rights, how to uphold them and the time to do so. Our resources are developed to provide sufficient information for health care providers to consider these challenges.

Our goal is to ensure that the resources are useful to people living with dementia and their supporters. This led us to work directly with people

with lived experience beyond consultations. Our Dementia Advisory Council guided our work; their perspective was essential. We also benefited from the input of family or friend caregivers and care partners. Their recounting of situations in which they became advocates for their loved one informed us of the gaps in knowledge and strategies for themselves and health care providers. These personal experiences allowed us to put ourselves in the shoes of a caregiver or care partner and understand how the resources could empower them to support a person living with dementia and, if needed, advocate for their loved one to engage in decision making.

A strong network of health care providers further contributed to our understanding of the complexities facing people living with dementia when engaging in decision making. One of the barriers they noted as a real consideration is time—health care providers find themselves needing information in short order. Our Guide for Health Care Providers on Engaging People Living with Dementia in Decision-Making is a fulsome resource on the law of decision making in the health care setting that can be accessed by topic. We also created decision-making pathways or flow charts that are a quick reference on when and how to engage in supported decision-making strategies before moving to substitute decision making. The goal with the decision-making pathways is to remind health care providers that there are options available to support a person living with dementia in decision making while acknowledging that there will be times when substitute decision makers may need to step in. The informational videos provide valuable insight from a variety of perspectives, such as health care providers, caregivers and people living with dementia and serve to remind of the personal impact we can have in supporting people living with dementia. We believe these resources will be of value to anyone who works with people with dementia.

You can access the full suite of resources on the CCEL Dementia + Decision-Making Project at <www.bcli.org/ccel-projects/dementia-decisionmaking-project/>.

ENDNOTES

1. Alzheimer Society, “Dementia Numbers in Canada”, online: <alzheimer.ca/en/about-dementia/whatdementia/dementia-numbers-canada>.

2. Ibid

NEWS FROM CLEBC SOCIETY

By Adam Simpkins*

CLEBC IS PROUD TO INTRODUCE FINANCIAL ISSUES IN FAMILY LAW—3RD EDITION

The third edition of Financial Issues in Family Law is an indispensable resource for lawyers navigating complex financial issues in family law cases. This newly released guide thoroughly addresses the financial challenges arising from relationship breakdowns, especially when business interests and trusts are involved. It offers in-depth coverage of property characterization, financial disclosure, valuation principles, division methods, tax implications and child support income calculation.

Featuring annotated sample documents, including financial statements and business valuations, this edition empowers lawyers to understand business ownership, effectively collaborate with valuation experts and confidently manage tax and support considerations. Key updates include discussions on the Family Law Act’s property division regime, comprehensive analysis of financial statements and business valuation and incorporation of the joint expert requirement.

Edited by leading experts in the field, this publication (available now in print or as an online subscription) is a must-have for legal professionals seeking to confidently handle financially complex cases.

Secure your copy today and stay ahead in family law practice. Visit <www.cle.bc.ca/804> to find out more.

To learn more about CLEBC’s current and upcoming publications, go to <www.cle.bc.ca/publications>.

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

CONGRATULATIONS TO TRU LAW FOR WINNING BC LAW SCHOOLS’ COMPETITIVE MOOT

CLEBC extends its congratulations to TRU Law students for their victory in the BC Law Schools Competitive Moot, surpassing participants from the University of Victoria and UBC’s Allard School of Law. Hosted at the Vancouver Law Courts with esteemed judges, this year’s moot focused on the potential recognition of a new tort of harassment and the complexities surrounding defamation suits by government actors against private individuals.

Commended for their exceptional oral advocacy and argumentative skills, the students impressed both the audience and sponsors, including CLEBC, which supports the event through funding for travel and accommodations. CLEBC chief executive officer Linda Russell and program lawyer Genevieve Chang lauded the participants’ efforts and resilience, highlighting the moot’s role in shaping future legal practitioners and contributors to CLEBC’s educational resources. The event underscored the dedication and talent of the next generation of litigators, promising bright futures for all involved.

To view some photos of the event, visit <www.cle.bc.ca/bc-law-schoolscompetitive-moot-2024/>.

LAPBC NOTES

By Anonymous

REACHING OUT FOR HELP HAS HELPED!

I have been a practising lawyer for 23 years. I did not always aspire to be a lawyer, but law was the profession I eventually chose because I needed to make a living. Law provided me with employment and a meaningful career. At a certain point in my career, a friend and colleague died suddenly and unexpectedly. Around the same time, I had to change jobs and I missed my friends at my old job. My wife told me I was not myself and asked me what was going on.

I came to realize that depression had become an unwanted guest and companion in life. My confidence began to crumble, and I felt I no longer wanted to be a lawyer because I was just an imposter in any event. I got bad health news from a health specialist, which caused my mental and physical health to suffer. I did my best to carry on and did not seek help.

When the loneliness and isolation of COVID-19 came along, I suffered a collapse and fell into a real crisis. I had used LAPBC very early in my career and decided to call the confidential line again some 22 years on from the first time. I left a message on the line and very soon after, Derek LaCroix, K.C., contacted me. Derek was able to speak to me about what was going on in my life and counselling began to help me. I began taking LAPBC seminars and I was able to begin the recovery that continues today.

I had always expected in my life that well-being would just happen. I now know that well-being requires mindful application and effort. As I continue to recover, participation in the LAPBC seminars and counselling services is something that I plan to continue as a part of my own future plan for well-being.

Every lawyer’s toolkit for well-being is different, but it all begins with getting interested in yourself and asking yourself questions: “Why do I feel the way I feel?” “Why do I think the way I think?” “What tools should I have in my toolkit that can contribute to my well-being?” This is a lifelong process and effort. The good news is that this effort is fun and interesting.

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

ЖЖЖ

A VIEW FROM THE CENTRE

By David Gruber, FCIArb, and Brienne Gloeckler*

Welcome winds of change: British Columbia’s amendments to costs awards and interest rules in domestic arbitration. In 2020, with the repeal and replacement of British Columbia’s Arbitration Act, 1 new provisions were enacted that govern costs awards and interest in domestic commercial arbitration proceedings.

The amendments clarified the rules to be applied to arbitral costs awards. Under the former Arbitration Act, 2 it was not clear what rules were to be applied when determining costs awards in domestic commercial arbitration. As a result of this confusion, in some cases, arbitral tribunals applied what are considered international best practices when ordering costs awards that favour full indemnity costs awarded on a summary basis, while in other cases, arbitral tribunals awarded costs in like manner to costs in B.C. Supreme Court litigation. The courts appeared to prefer the latter approach unless the parties’ arbitration agreement could be taken to include an agreement to the contrary.3 The new costs awards provisions give clear effect to the international best practices that were applied in some, but not all, costs awards under the previous legislation.

Further, under the amendments, pre- and post-award interest orders are no longer governed by the Court Order Interest Act 4 Instead, the arbitral tribunal has broad discretion to order interest that fully compensates the successful party’s expectation interest. This better reflects the context and aims of arbitration than application of the litigation interest rules.

This article details the changes to the costs awards and interest rules and discusses their implications.

* David Gruber is the co-head of Bennett Jones LLP’s litigation and dispute resolution department, and a director of the Vancouver International Arbitration Centre (“VanIAC”). Brienne Gloeckler is an articled student at Bennett Jones LLP.

COSTS AWARDS

Costs awards in domestic arbitration are now governed by s. 50 of the Arbitration Act. Under this section, the arbitral tribunal has discretion to make a costs award, unless otherwise agreed by the parties. A costs award may be made at any time during or upon termination of arbitral proceedings.5 The award may include arbitrators’ and expert witness’ fees and expenses, legal fees and expenses, administrative fees of an institution, and other expenses incurred in connection with the proceedings.6 A costs award may also specify the amount of costs, or the method of determining that amount, and the manner in which costs must be paid.7

In British Columbia, the “normal rule” for determining the amount of an arbitral costs award is that the successful party is entitled to full indemnity, i.e., full costs, unless there are circumstances that warrant otherwise.8 The B.C. Supreme Court has been clear that full indemnity costs is not a legal presumption, nor does it impinge on the arbitral tribunal’s discretion to determine the amount of a costs award.9 Instead, it functions as the starting point for determining the amount of a costs award.10

The factors that may justify a departure from the starting point of full indemnity costs include:

•whether the arbitration agreement placed a limit on arbitration costs;

•whether the successful party had full or divided success in the arbitration;

•whether the successful party invoked or abandoned a limitations defence;

•the success of both parties on interim applications during the arbitration proceedings;

•instances on the part of either party of bad faith or non-compliance with the Arbitration Act or other applicable rules; and

•the circumstances of the dispute, such as the complexity of the matter.11

Additionally, if an offer to settle the dispute or any part thereof is rejected by either party, the arbitral tribunal may take this into account when making a costs award.12 However, the content of an offer to settle must not be communicated to the arbitral tribunal unless it has already determined all aspects of the dispute but costs.13

As to the first of the items listed above (whether the arbitration agreement placed a limit on arbitration costs), it is not uncommon for drafters of arbitration agreements to include language to the effect that the parties are

to bear the costs of the arbitration equally. Such provisions can and often do create unintended interpretive problems, as they can be construed in several different ways:

•that the parties are to pay the fees of the arbitrator and any administration fees on an equal basis during the course of the proceeding subject to reallocation in a final award, and may also claim costs for their own legal fees and disbursements in a final award;

•that the parties are to pay the fees of the arbitrator and any administration fees on an equal basis with no reallocation in a final award but may still claim costs for their own legal fees and disbursements in a final award; or

•that the parties are to pay the fees of the arbitrator and any administration fees on an equal basis with no reallocation in a final award and are to bear their own legal fees and disbursements regardless of the outcome.

If the intention of the parties is the first of these interpretations, it would be better to leave out such language in the arbitration agreement, since that is the default result under the Arbitration Act, and mechanics for equal payments on an interim basis are better dealt with under institutional rules such as the VanIAC Domestic Commercial Arbitration Rules. If one of the other interpretations reflects the parties’ intentions, it would be better to spell that out in the arbitration agreement itself rather than to use vague language about the parties bearing the costs of the arbitration equally.

A costs award on a full indemnity basis is subject to the reasonableness of the costs claimed. In litigation proceedings, the reasonableness of legal fees and expenses is qualitative. The question asked in assessing reasonableness is whether the fees and expenses in the matter at issue are reasonable in the circumstances.14 The answer to this question is guided by s. 71 of the Legal Profession Act. 15 However, the reasonableness of other, non-legal disbursements is discretionary.16

The 2020 provisions have clarified that costs awards can be determined on a summary basis.17 This process is not like that of an assessment of special costs before a registrar in B.C. Supreme Court. Rather, summary determinations of the amount of costs likely do not require a waiver of privilege and, often, are done without supporting documentation, let alone formal evidence. However, it is within the jurisdiction of an arbitral tribunal to order the successful party to produce a documentary basis for all amounts claimed by it. Thus, the parties may wish to consider providing rules for supporting documentation in an arbitration agreement or in an early procedural order.

Further, either party may call upon the arbitral tribunal to order costs submissions from parties following: (a) an arbitral award made in respect of the merits of the dispute; or (b) following the conclusions of arbitral proceedings but before the arbitral award has been made. As a practical matter, costs submissions made in the latter period are more likely to reflect the reasonable costs of the parties since it may be assumed that parties will exchange honest and transparent information about their own costs to each other while they still believe they may be successful in the outcome.

INTEREST

Prior to the 2020 amendments, the former Arbitration Act explicitly incorporated the Court Order Interest Act, 18 which governs pre- and post-judgment interest determinations in litigation proceedings. Accordingly, pre- and post-arbitral award interest was determined using litigation rules.

Importantly, the amendments removed reference to the Court Order Interest Act and instead provided the arbitral tribunal with discretion to award interest for the time period and rate that the arbitral tribunal considers appropriate.19 As the Court Order Interest Act is drafted, it is no longer possible to apply that legislation directly to an arbitration award.

Unless otherwise agreed by the parties, simple or compound interest may be awarded as follows:

•on the whole or part of any amount claimed and outstanding at the commencement of proceedings but paid before an arbitral award was made, interest may be awarded for any period before the date of payment;20

•on the whole or part of any amount awarded by the arbitral tribunal, interest may be awarded for any period up to the date of the arbitral award;21

•on the outstanding amount of any arbitral award, including interest and costs awards, interest may be awarded from the date of the arbitral award, or any later date, until payment.22

In practice, the interest rate applied to an arbitral award will likely reflect any contractual interest rate as agreed by the parties.

Since the amended Arbitration Act provides that pre-award/judgment interest calculations are to be made at the discretion of the decision maker,23 the decision maker can order pre-award interest in an amount equivalent to what would have applied under the Court Order Interest Act However, under the new Arbitration Act provisions, it is not possible to order an equivalent amount of post-judgment interest. Every six months,

the Court Order Interest Act adjusted the interest rate at which post-judgment interest was to be paid, to align the rate with the prime lending rate of the Bank of Canada.24 The amended provisions of the Arbitration Act, without reference to the Court Order Interest Act, do not provide for those adjustments in a post-award interest order.

The premise of the amended rules governing interest is that successful parties should receive their full expectation through an award of interest. In other words, the Arbitration Act aims to put successful parties in the economic position they would have expected to be in were the contract performed. Removing reference to the Court Order Interest Act helps achieve this purpose. In the absence of a contractual interest rate, an arbitral tribunal has broad discretion to order interest that fully compensates the successful party’s expectation of interest, including time value of money, without being encumbered by the Court Order Interest Act differential between pre- and post-judgment interest.

CONCLUSION

The 2020 amendments to the Arbitration Act made important changes to the costs award and interest rules applied to domestic arbitration. The amendments clarify the rules to be applied in determining costs awards. The changes also better align pre- and post-award interest orders with the context and underlying principles of arbitration. These improvements make the arbitral outcome more predictable and comprehensive, encouraging parties to pursue domestic arbitration as a resolution to commercial disputes in British Columbia.

ENDNOTES

1. SBC 2020, c 2.

2. RSBC 1996, c 55.

3. Ridley Terminals Inc v Minette Bay Ship Docking Ltd, 1990 CanLII 582 (BCCA).

4. RSBC 1996, c 79.

5. Arbitration Act, supra note 1, s 50(1).

6. Ibid, s 50(2)(a).

7. Ibid, s 50(2)(b).

8. Enrroxs Energy and Mining Group v Saddad, 2022 BCSC 285 at para 101. See also Allard v The University of British Columbia, 2021 BCSC 60 at paras 65-82 [Allard]; Goel v Sangha, 2019 BCSC 1916 at para 67; and Teal Cedar Products Ltd v British Columbia (Ministry of Forests), 2011 BCSC 360 at paras 72–84. The Arbitration Act, supra note 1 expressly supports this: s 50(2)(c) states that an arbitral tribunal can determine the amount of a costs award by reference to actual reasonable legal fees, expenses and witness fees.

9. Allard, supra note 8 at para 82.

10. Ibid

11. See ibid at para 77 and Enrroxs Energy, supra note 8 at para 101.

12. Arbitration Act, supra note 1, s 50(3).

13. Ibid, s 50(4).

14. Wanson (Bristol) Development Ltd v Sahba, 2019 BCCA 459 at para 12.

15. 2019 BCCA 459 at para 17.

16. Wanson, supra note 14 at paras 21–29.

17. Arbitration Act, supra note 1, s 50(2)(d).

18. Arbitration Act, RSBC 1996, c 55, s 28

19. Arbitration Act, supra note 1, s 51.

20. Ibid, s 51(1)(b).

21. Ibid, s 51(1)(a).

22. Ibid, s 51(2).

23. Ibid, s 51(1); Court Order Interest Act, supra note 4, s 1(1).

24. Court Order Interest Act, supra note 4, s 7.

ANNOUNCING THE 2024 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 must include the following sentence

“It’s Bateman, not to be confused with __________.”

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 6, 2024. 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 14, 2025. 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*

NEW REPORT AIMS TO REMOVE ROADBLOCKS TO FREEDOM FOR THE WRONGFULLY CONVICTED

On January 5, 2024, Robert Mailman and Walter Gillespie were acquitted of murder in New Brunswick, 40 years after their conviction.

In her ruling, Chief Justice Tracey DeWare explained how new information led her to believe “serious mistakes” at their 1984 trial had contributed to their wrongful conviction. Police failed to disclose evidence at trial that supported Gillespie and Mailman’s alibi, and two key witnesses were paid by police before testifying. Unknown to the defence, both witnesses had initially told police that they had no first-hand knowledge of the murder, and later recanted their testimonies.

A new report by the UBC Innocence Project argues that wrongfully convicted individuals are languishing in Canada’s prisons, and explains how timely access to police and court records could help remedy these miscarriages of justice.

Co-authored by Tamara Levy, K.C., Director of the UBC Innocence Project at the UBC Peter A. Allard School of Law, and Allard Law graduate Alexandra Ballantyne, Post-Conviction Disclosure in the Canadian Context documents the long delays and years of effort that go into gaining access to records that may help prove the innocence of wrongfully convicted individuals.

PUTTING AN END TO THE WAITING GAME

Levy says that denied requests and delays in gaining access to complete court records and police files present one of the biggest barriers that innocence organizations face in their efforts to advocate for the wrongfully con-

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

victed. These files can include information that was available but never shared with the defence at trial, such as the names of witnesses who spoke with police but who never provided a formal statement or potential evidence found at the crime scene that was never tested for DNA.

“This is the type of information applicants desperately need that might ultimately prove their innocence,” says Levy.

Funded by the Canadian Bar Association’s Law for the Future Fund, the report calls for a series of changes that would make it easier to access these files and could potentially cut years off the time that wrongfully convicted individuals sit in prison before their cases are formally reviewed.

The report calls for innocence organizations, like the UBC Innocence Project, to be granted access to all police and court files related to the cases they are investigating, including details about any police misconduct.

A recent study noted in the report shows that concealing evidence—the most common type of police misconduct—occurred in forty-four per cent of exonerations in the United States. Similar data is not currently available in Canada, in part because access to full police records is so difficult to come by.

INFORMATION SHARING LEFT LARGELY TO POLICE DISCRETION

At present, the police and the Crown have discretion to decide whether to share their files after someone is convicted. The report notes that the RCMP consistently refuses to share information with the UBC Innocence Project, unless the court orders it to do so or unless an application for review has already been submitted to the Minister of Justice.

That means innocence organizations find themselves in a classic catch22, the report explains. The Project has to apply to the involved police agency to gain access to any new information that could help prove their client’s innocence, but for their application to be successful, they have to have applied to the Minister of Justice with information including “new matters of significance”—precisely the information they are trying to access in their application to the police agency.

“Without first having access to those police files, it’s incredibly difficult to do our due diligence and assess the full merits of the case before applying to the Minister of Justice,” says Levy.

Once enough material has been gathered and an application is submitted, it can take months or years to get an initial response from the RCMP. Levy notes that the initial response is usually to deny access, and appealing that decision can often mean more years of waiting. When records are released, they may be so heavily redacted as to be useless.

Gaining timely access to complete case files is particularly critical in preventing those who are wrongfully convicted of serious crimes like murder from sitting in prison for decades. With just five innocence organizations operating in Canada, resources are limited, and the report offers support for Bill C-40, which sets out a plan for a commission that would independently investigate claims of wrongful conviction.

The report also recommends training for police on the causes of wrongful conviction and the harms caused by failing to disclose evidence, as well as developing new whistleblower legislation that would make it easier for those within the police force to report cases where significant information was not disclosed.

“There is no question that innocent people have been and continue to be wrongly convicted,” says Levy. “For innocence organizations to be able to help the wrongly convicted, we need access to the information that might prove the miscarriage of justice has taken place. If the right person was convicted, there should be nothing to hide.”

UVIC LAW FACULTY NEWS

By Katie McGroarty*

UVIC LAUNCHES PROFESSIONAL SPECIALIZATION CERTIFICATE IN INTELLECTUAL AND CULTURAL PROPERTY LAW

The UVic Faculty of Law, in partnership with Continuing Studies, is launching a new Professional Specialization Certificate (“PSC”) in Intellectual and Cultural Property Law, starting in May 2024.

Indigenous cultural heritage and intellectual property are complex. Proficiency in both areas is becoming a highly sought-after skill for practising lawyers and other legal professionals. Participants will gain new knowledge and skills in copyright, trademark, patents and designs; the developing field of cultural property in Indigenous communities; and the conceptual and practical dimensions of cultural property.

This non-credit program, designed for legal professionals, delves into federal and provincial intellectual property laws, Indigenous intellectual property laws, customs, traditions and the analysis of cultural property and heritage on both national and international scales. Comprising courses already offered for credit to the Faculty of Law’s J.D. and J.D./J.I.D. students, this PSC offers a pathway for professional learners to gain a comprehensive understanding of intellectual property rights, laws and policies in Canada and globally.

Scheduled as a six-week summer intensive on the University of Victoria campus, the program runs from May 8 to June 14, 2024, providing a unique opportunity for participants to network and enhance their expertise. Additionally, courses can be accessed individually, providing flexibility to delve into specific areas of interest.

The structure of this accelerated summer program will focus on:

* Katie McGroarty is the communications officer for the University of Victoria Faculty of Law.

•federal and provincial laws concerning intellectual property

•Indigenous intellectual property laws, customs and traditions, along with an analysis of cultural property and heritage—both nationally and internationally

Courses in the PSC in Intellectual and Cultural Property Law are accredited and qualify for Continuing Professional Development (CPD) credit through the Law Society of British Columbia.

To learn more visit: <continuingstudies.uvic.ca/humanities-and-socialsciences/programs/intellectual-and-cultural-property-law/>.

UVIC’S NATIONAL CENTRE FOR INDIGENOUS LAWS WINS PRESTIGIOUS DESIGN AWARD

Located on Ləkwənən (Songhees and Esquimalt) territory, the National Centre for Indigenous Laws1 (“NCIL”) at the University of Victoria is still under construction but its architectural design is already winning awards. Slated to open in late fall 2024, the NCIL has received a 2023 Canadian Architect Award of Excellence,2 celebrating its Coast Salish design elements and focus on bringing the surrounding forest into the building.

The NCIL architectural design was created through a collaborative partnership among three architectural firms led by Two Row Architect, an Indigenous-owned firm, along with Teeple Architects Inc. and Low Hammond Rowe Architects. In assembling a team for the project, the architects “put themselves in UVic’s shoes” to consider how the university could be best served. They started by appointing an Indigenous firm (Two Row Architect) as the architect of record to provide leadership throughout all phases of the project, with a focus on conducting Indigenous and community engagements. They enlisted an international-calibre design firm (Teeple Architects) to collaborate with and provide insight into the drawings and specifications, and also joined with a local firm (Low Hammond Rowe Architects) familiar with UVic to respond quickly and provide design input during the construction and commissioning phases of the project. Brian Porter of Two Row Architect noted, “UVic has been one of those very rare clients that not only supports the development of an Indigenousinspired design, but also remains steadfast through all phases of the project to see it through.”

The 2,440-square-metre addition to the UVic Anne and Murray Fraser law building will provide culturally appropriate space for the learning and teaching of Indigenous laws. This includes the Canadian Common Law and Indigenous Legal Orders joint degree program (J.D./J.I.D.), the first of its

A Design to Honour Indigenous Communities and the Land

Ékind in the world, as well as space for the J.D. program, public legal education programs and much-needed classroom, clinical and research spaces for the Indigenous Law Research Unit, the Environmental Law Centre, the Business Law Clinic and the Access to Justice Centre for Excellence. The building will include an Elders’ room and garden, and spaces for gathering, ceremony, dialogue, research and the sharing of histories and knowledge. The design of the building will facilitate place-based learning and will create a flow between the old and new buildings and indoor/outdoor spaces, including an outdoor learning deck, a sky classroom and a maker classroom.

The design for the new building emerged through a long engagement process with Elders and members of the Songhees, Esquimalt and WSÁNEC communities, as well as with UVic’s Faculty of Law students and a team of staff and faculty members. The importance of honouring the land where the building is situated was at the forefront of all design decisions.

As Sarah Morales (Su-taxwiye), Associate Professor, Coast Salish and Cowichan Tribes member, has noted:

Indigenous peoples have maintained vital relationships with the places they have inhabited since time immemorial. These places, deeply imbued with meaning and identity, are sources of law and necessary inspiration for legal reasoning. Recognizing this deep connection between land and law, the NCIL is inspired by the legal landscapes of the Coast Salish world. Its design reflects the importance of water and offers acknowledgement of our relationships with the beings of this place: the forests, mountains, sky and all their inhabitants. In designing a space that seeks to represent what the Coast Salish world teaches us about our legal relations and lawful obligations, the NCIL design team has created an environment that intentionally gives pause to its visitors, reminding them to consider what it is they are being called upon to do as actors in this legal landscape, and how they can continue the work of honouring the legal traditions of their Coast Salish hosts.

An Indigenous Law Institute

The NCIL responds to the Truth and Reconciliation Commission’s (“TRC”)

Call to Action #50, which recommends “the establishment of Indigenous law institutes for the development, use and understanding of Indigenous laws and access to justice, in accordance with the unique cultures of Aboriginal peoples in Canada”. It also seeks to meet the responsibilities identified by the TRC for the legal profession and law schools set out in Calls to Action #27 and #28.

Qwul’sih’yah’maht Robina Thomas, Vice-President, Indigenous, has stated:

From its inception, the NCIL has honoured Indigenous laws of these lands, upholding the local teaching etal nwl | ÁTOL,NEUEL, where the essence of respecting the rights of one another and being in right relationship with all things is not merely a principle, it’s how we live and walk in harmony with everything on this land. The University of Victoria has proudly redefined its approach to building and being in right relations with the land by weaving together Indigenous languages, arts and culture into the development of the NCIL. This innovative model not only harmonizes with the environment but also lives out our commitment to the local nations, sustainability and a forward-thinking vision in architectural practices. May this recognition ignite inspiration for other institutions to build respectful relationships with Indigenous communities to guide and support their planning and development.

The NCIL is the culmination of years of work and commitment to partnerships with local Indigenous communities, and supports the goals of the university’s Climate and Sustainability Action Plan, Strategic Plan and Indigenous Plan. It also supports the United Nations Sustainable Development Goals of quality education, good health and well-being, life on land, and peace, justice and strong institutions, which reflect the values of the University of Victoria.

ENDNOTES

1. The National Centre for Indigenous Laws is a provisional name. The building is pictured on the front cover of this issue of the Advocate, behind the dean.

2. Since 1967, Canadian Architect has sponsored an annual national awards program recognizing projects in the design stage.

TRU LAW FACULTY NEWS

By Ryan Gauthier*

TWO NEW FACULTY HIRES AT TRU LAW

TRU Law is pleased to welcome two new members to our faculty.

Mark Mancini is joining TRU Law in July 2024 as an assistant professor. Mark publishes on administrative law and his work has been cited by various courts, including the Supreme Court of Canada. He lectures at the National Judicial Institute, where he provides multi-day training seminars on administrative law for newly appointed federal judges. Mark is also a coauthor of a popular blog on public law, “Double Aspect”. Mark holds a B.A. degree in political science from Laurentian University, a J.D. degree from the University of New Brunswick, and an LL.M. degree from the University of Chicago Law School, and he is working on his Ph.D. at Allard Law. He also clerked for the Federal Court of Canada.

Murray Sholty is joining TRU Law and the Bob Gaglardi School of Business and Economics as an assistant teaching professor. Murray has worked with TRU Law since 2022 as a sessional faculty member. His area of expertise is First Nations business and law. Murray has significant business and consulting experience, developing guidebooks on impact benefit agreements, strategic development and strategic implementation. He has taught on topics related to First Nations business and governance at TRU Law. Murray holds an M.B.A. degree from the University of Northern British Columbia, a J.D. degree from TRU Law, and two LL.M. degrees (business law, and energy and infrastructure) from Osgoode Hall. Murray is a Hagwilget Village member from the House Spookw and of the Lax Gibuu clan.

* Ryan Gauthier is an associate professor at the TRU Faculty of Law. He drafted this submission in Utrecht, the Netherlands. Despite living in Rotterdam for nearly four years, his Dutch language skills are still abysmal.

BC LAW SCHOOL TEAM WINS MOOT

Congratulations to the TRU Law team for winning the 2024 BC Law Schools Competitive Moot. This year’s team saw Mostafa Elfakhani, Cailey Harris, Greg Parth, Julia Pinnock and Lisa Wong take home the top prize. The coaches, Danielle Ching McNamee and Catharine Bisbicis, noted that each member of the team took the moot seriously, and their hard work clearly paid off.

TRU Law would like to thank everyone who supported the BC Law Schools Competitive Moot team this year: Rush Ihas Hardwick LLP for sponsoring the team, the Continuing Legal Education Society of British Columbia for supporting travel and the TRU Sherman Jen Fund for its financial support.

DEAN’S CUP MOOT BY THE TRIAL LAWYERS ASSOCIATION OF BC

The TRU Law Oral Advocacy Club held the Dean’s Cup Moot by the Trial Lawyers Association of BC (“TLABC”) from January 25 to February 2, 2024. This is an internal moot competition among TRU Law students. Twenty-six students participated in the moot. Moot judges included members of the bench and bar, including recently appointed Chief Justice of British Columbia Len Marchand. The winning team was Charn Sidhu and Harman Sandhu. Second place went to Jaewon Shin and Mackenzie Do. Third place went to Daniel Bunting and Kirah Janzen.

Kudos to the Oral Advocacy Club for putting on this year’s competition. Kendra Hewson, Carson Puetz, Rosina Hamoni, Luke Conkin and Dennis Tarasenko did great work on this year’s edition.

Thanks as well to the sponsors for their support: TLABC, Paul and Company, and Richards Buell Sutton. We also appreciated having the presence of Karin St. Aubin and Michael Elliott of TLABC at the final competition.

INAUGURAL LECTURE

On February 13, 2024, Professor Katie Sykes presented her inaugural professorial lecture. This is a lecture given by tenured faculty who have been promoted to full professor, and is a public celebration of this academic milestone.

Katie’s lecture was titled “Ag Gag in Canada: Animal Farms and the Right to Know”. In her lecture, she looked at the legal gaps in the regulation of factory farming, why it is hard for people to get information about what happens on farms, and whether “ag gag” legislation violates Charter expression rights. These “ag gag” laws have been enacted across Canada in recent years and raise the risk of reducing accountability for factory farming. Katie

pointed out that such laws may also raise questions about constitutional rights and the rule of law more broadly.

SLS ANNUAL CONFERENCE

In February, the Society of Law Students put on its annual conference. This year’s theme was “Strengthening the Light: Pro-Bono Work within Firm Culture”. The conference focused on the importance of pro bono work, particularly within law firms, as one of the ways to address issues of access to justice. Speakers shared their experiences with pro bono work and discussed the significance of legal aid in reducing barriers and supporting communities. Speakers included Jamie Maclaren, K.C., Odette DempseyCaputo, the Honourable Wally Oppal, K.C., Brittany Therrien, Jesse Olynyk and Aaachal Soll. Thanks go to conference chair Loveleen Sandhu and her team for this year’s edition of the conference.

MOCK BAIL HEARING COMPETITION

The TRU Criminal Law Club hosted its first mock bail hearing competition. Students, acting as either Crown or defence counsel, made bail submissions, while other law students filled in as the accused and as court clerks. Kind thanks to judges Stella Frame, Greg Koturbash and Trevor Armstrong for presiding over the mock hearings. Thanks also to the Kamloops Law Courts for allowing access to the courtrooms.

RESEARCH TALKS

Finally, as we move into spring, the TRU Faculty of Law is still hosting research talks. Two notable talks happened in February. On February 1, Professor Ruby Dhand, Kelly Melnyk and Professor Lilian Thorpe presented a talk on medical assistance in dying entitled “MAiD in Canada: Challenging Clinical, Ethical, and Legal Issues”, where they examined recent changes to eligibility for MAiD in Canada, including for those with sole mental disorders. On February 29, Professor Brad Morse and Murray Sholty presented their talk titled “Indigenous Economic Development as a Key Component to Reconciliation”, where they examined recent court decisions and policy initiatives in Canada affecting economic reconciliation and highlighted examples of successful projects on this issue.

THE ATTORNEY GENERAL’S PAGE

By the Honourable Niki Sharma, K.C.*

PROTECTING THOSE WHO PROTECT US: ENSURING COURTROOM SAFETY AND THE IMPORTANCE OF COUNSEL

As lawyers, one of our main focuses in the courtroom is the well-being of our clients and doing our best to represent their interests—this should remain the focus. I have heard from members of the legal community that they are increasingly concerned about their own safety while doing their jobs.

Recently, two incidents have brought the importance of courtroom safety to the forefront. As British Columbia’s Attorney General, I want to address this issue. In early December 2023, a defence counsel received repeated personal threats against him during a case, eventually leading to an investigation being launched by the Vancouver Police Department into allegations that an individual brought a loaded gun into the court. In a separate incident in early February 2024, a Crown counsel was assaulted and injured while walking to the courthouse, and a suspect was subsequently arrested. I am sure we were all shocked and upset by both of these incidents.

Shortly after the assault, I met with the people who worked at the courthouse to understand how we can make sure not only that people who work in the justice system feel safe every day when they come to work, but also that the public continues to have unimpeded access to the courts.

Both these incidents highlight something we often forget as lawyers when we get immersed in our caseloads: courthouses are deeply emotional places where victims and families are sometimes retraumatized in their attempts to seek justice. Ensuring the safety of those who use our courts is essential. While it is true that all victims have our support, there is no

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

excuse for violence in or around a courthouse—risking the safety of lawyers, workers, families and victims who are going through very difficult situations.

I also want to take a moment to acknowledge the incredible work that both defence counsel and Crown counsel do, operating in courtrooms throughout the province. Both Crown counsel and defence counsel are faced with an incredible amount of stress, scrutiny and pressure, as they work with the monumental task of ensuring that the justice system is working well in British Columbia.

Regarding safety at courthouses, each courthouse is unique and is assessed on its own merits. I will continue to work with the Chiefs of our courts to make decisions on any improvements necessary.

Members of the B.C. Sheriff Service are present in and around the courthouse to ensure the safety of all court users. We are working hard to recruit and retain sheriffs across the province because we know how critically important their role is to the work that all the rest of us do in court.

Additional controlled access points may be established within a court facility or in a courtroom where the matter being heard presents additional security risks. Currently there are four courthouses (Surrey, Abbotsford, Vancouver Provincial and the Downtown Community Court) that have fulltime controlled access points with search gates at the main entrance.

It is also important to recognize that the work government is doing to improve safety in our local communities also impacts our courthouses. In November 2022, we launched the Safer Communities Action Plan (“SCAP”), which focuses on keeping people safe and communities strong. While SCAP has many facets, the ones that pertain most to courthouse safety include:

•Launching the Repeat Violent Offending Intervention Initiative to keep repeat violent offenders off the streets

•Creating more mobile mental health crisis response teams

•Funding specialized units and coordinated response teams to improve public safety

•Improving access to 911

•Offering community safety grants for crime prevention and remediation projects

Everyone deserves to feel safe in their community and their workplace. The safety and security of all court users and staff is a top priority both for me, as the Attorney General, and for my ministry. We are committed to ensuring that the right measures are in place to ensure that no one, in the

courthouses or in the surrounding local communities, has to worry about their physical safety while doing the important work of upholding our democracy and ensuring that people in British Columbia have safe, barrierfree access to justice.

In the coming months, we will be:

•Ensuring that all lawyers understand the safety protocols available to them in courtrooms

•Recruiting and retaining more sheriffs

•Working with police around courthouses to make sure there is appropriate security in place

•Working with the judiciary to ensure that we are striking the right balance between security measures and an open accessible courthouse

In that regard, I would like to hear from you, so please reach out if you would like to share your perspectives to help feed into our actions to increase safety.

ЖЖЖ

COURT NOTICES AND DIRECTIONS

By the Honourable Suzanne Anton, Q.C.*

The Provincial Court of British Columbia

Notice to the Profession and Public Remote Attendance in the Provincial Court

Effective Date: March 8, 2024

Number: NP 21

PURPOSE

This Notice provides direction and information for anyone who will attend a Provincial Court proceeding remotely by audioconference (including telephone or Microsoft Teams) or videoconference (Microsoft Teams).

For a step-by-step guide to appearing by Microsoft Teams audioconference or videoconference see the Guide for Appearing in the Provincial Court Using Microsoft Teams. It contains detailed information about connecting to and managing a Microsoft Teams audioconference or videoconference. Review the guide carefully before your matter proceeds.

NOTICE

Remote Attendance Etiquette

In some ways, the behaviour expected of people attending court remotely is the same as if they were actually in a courtroom. However, attending a proceeding fairly and effectively by audioconference or videoconference requires some modification to etiquette and behaviour. The Chief Judge directs that certain aspects of hearing etiquette and decorum required for in-person hearings be modified for remote attendance. In particular:

I.Parties, Counsel for Parties, Witnesses, and Other Court Participants

1.For audioconference or videoconference attendance

a. Use of cameras: When counsel attend court proceedings remotely using MS Teams, they must appear by videoconference or apply1 to the Court to appear by audioconference only. Counsel should generally have their cameras off while waiting for their matter to be called. When dealing with their matter, counsel must leave their cameras on, even when not speaking, unless the judge or justice directs otherwise. Self-represented parties, witnesses, and other court participants should generally have their cameras off while waiting for their matter to be called. When dealing with their matter, they should leave their cameras on if they have cameras, even when not speaking, unless the judge or justice directs otherwise.

b. No recording or photography: You are not permitted to audio- or video-record, photograph, or screenshot any portion a court proceeding. Some proceedings are confidential and there may be a publication ban in effect. The BC Courts’ Policy on the Use of Electronic Devices sets out penalties for recording, including prosecution. See, also, Access to Court Proceedings Policy, sections 5 and 8.

c. No publishing, broadcasting, reproducing, transmitting, sharing, making available, or disseminating: Except as authorized by the Court, the publishing, broadcasting, reproducing, transmitting, sharing, making available, or otherwise disseminating of court proceedings or recordings thereof is prohibited. See section 6 of the Access to Court Proceedings Policy, including section 6.2 which sets out the penalties for publishing etc., including prosecution.

d. Confidentiality: The conversation between the parties, their counsel (if represented), and the judge in a case conference or pre-trial conference is private and confidential. Only parties and/or their counsel should appear at the conference and no-one else should be present, unless otherwise permitted by the conference judge. Do not forward or share the meeting link or dial up information to any unauthorized individuals.

1. The application can be made on the same day as the court appearance before the presiding judicial officer and no materials are required to be filed in advance unless otherwise directed by the Court.

e. Mute microphone: To minimize background noise, mute your microphone when you are not speaking. If you are using a computer, close applications on your computer—such as Twitter, Facebook, and email—that are not needed so you are not interrupted during the proceeding. Also, put your cell phone to silent mode.

f. Introductions: When parties are introducing themselves, or lawyers are introducing themselves, their client, witness or another individual, in court proceedings, they should provide the judge or justice with each person’s name, title (e.g. “Mr./Ms./Mx./Counsel Jones”) and pronouns to be used in the proceeding. (See NP 24 Form of Address for Parties and Lawyers)

g. Speak clearly and slowly: Remember to unmute before speaking. Speak clearly and slowly enough for everyone to follow what you are saying. Pause frequently to allow the judge to ask questions and avoid speaking over the judge or other participants. This is particularly important when there is an interpreter. Mute the microphone again when done speaking. Follow the judge’s directions about when to speak or ask questions.

h. Objecting, responding or commenting: If you find it necessary to object to, respond to, or comment on something that an opposing party has said and it cannot wait:

• if on video, click on the raise hand button or raise your hand to signal to the judge that you wish to speak; and

• if on audio, respectfully interrupt the conversation when appropriate to let the judge know that you have something to say.

i. Forms of address: A Provincial Court Judge is called “Your Honour”. For the other party and/or their lawyer, see NP 24.

j. Time limits: Time limits may have been set in advance, or the judge may set them during the conference or hearing. You must follow them to make sure everyone has a fair chance to be heard. If attending by videoconference, near the end of the time scheduled for the proceeding, an “End of Meeting” warning may appear on the screen. This warning indicates that the time scheduled for the proceeding is almost up, but the judge

will decide when to end the proceeding. Do not disconnect from the proceeding until directed to do so by the Court.

k. Materials: Collect and organize the documents you will need in advance, and make sure you have them with you for the hearing or conference.

l. Use pen and paper: Take notes with a pen and paper. The sound of typing can be distracting, and make it hard to hear others. Avoid shuffling papers as that also can be distracting.

m. No food or drink: As in a courtroom, participants are not to eat or drink anything except water, nor to smoke or vape.

2.Additional directions for videoconference attendance

a. Location: Counsel must appear in a quiet, private space with a neutral background. Self-represented parties, witnesses, and other court participants should make reasonable efforts to find a quiet, private space with a neutral background for their court appearance. Neutral backgrounds can be especially important when there are security concerns for a party or a witness. Inappropriate profiles or background images must not be used.

b. Dress appropriately: Counsel are expected to wear business attire. Self-represented parties, witnesses, and other court participants should dress as if they are attending a proceeding in person. Click on the link [see online: <https://www. provincialcourt.bc.ca/about-the-court/faq#cp03>] for more information on how to dress for court.

c. Arrive early: You should be prepared to join the court proceeding at least 15 minutes before the start of the proceeding, to allow time to address any technical issues. Before the proceeding starts, you will enter a virtual waiting room and remain there until the proceeding begins.

d. Use your name when prompted for a screen name: When you join the proceeding, you will be asked to enter your name. The name that you enter will be displayed for all participants to see. Type your first and last name.

e. Sitting and Standing: You do not need to stand when the proceeding starts or ends, and you can remain seated when addressing the judge.

f. Bowing: You do not need to bow at any time during the proceeding.

g. Focus on your camera: Direct eye contact is important. When speaking, look into the camera rather than at the person(s) that you are speaking to.

h. Landscape mode: If using a Smartphone, flip your phone horizontally to enable landscape mode so your full headshot displays.

i. Technical difficulties: If the image and sound quality is interrupted, ask whether other participants can still hear you. If so, continue speaking as the image will reappear once bandwidth returns to normal. If problems continue, it may be necessary for some of the participants to turn off their video. If the session ends unexpectedly, please try re-connecting. If the Microsoft Teams video platform is not working, the Court will contact the parties either to provide Telus teleconference dial-in details or to reconnect the parties directly by audioconference, so all parties may continue the proceeding by dialing in from any telephone.

3.Additional directions for audioconference attendance

a. Location: Counsel must appear in a quiet, private space. Selfrepresented parties, witnesses, and other court participants should make reasonable efforts to find a quiet, private space for your court appearance.

b. Connecting to the court proceeding: Court proceedings are recorded by the Court. When you are connected to the court proceeding, introduce yourself by saying your first and last name. The court clerk will note the names of all the parties and lawyers attending the hearing on the court record.

c. Say your name whenever you start speaking: It can be hard to know which person is talking.

d. Audio connection: If using a telephone, a land line works better than a cell phone. In either case, do not use the speaker phone function. Instead, use a hand-held phone or use a set of headphones with a built-in mic and mute feature. If possible, avoid the use of VOIP (Voice Over Internet Protocol).

II.Media and the Public

1. Undertaking: Any member of the media or public remotely attending a court proceeding undertakes to remain silent (mute

their microphone) and, if applicable, hidden (keep camera turned off) for the duration of the court proceeding.

2. No recording or photography: You are not permitted to audio- or video-record, photograph, or screenshot any portion of court proceedings (except accredited media may audio-record for notetaking purposes only). Some hearings are confidential and there may be a publication ban in effect. The BC Courts’ Use of Electronic Devices in Courtrooms Policy sets out penalties for recording, including prosecution. See, also, Access to Court Proceedings Policy, sections 5 and 8.

3. No publishing, broadcasting, reproducing, transmitting, sharing, making available, or disseminating: Except as authorized by the Court, the publishing, broadcasting, reproducing, transmitting, sharing, making available, or otherwise disseminating of court proceedings or recordings thereof is prohibited. See section 6 of the Access to Court Proceedings Policy, including section 6.2, which sets out the penalties for publishing etc., including prosecution.

History of Notice to the Profession and Public

• Original Notice to the Profession and Public effective on May 07, 2020.

• Amended Notice to the Profession and Public effective on July 13, 2020 (housekeeping amendments consequential to NP 19 COVID 19: Resumption of Court Operations – July 13, 2020).

• Amended Notice to the Profession and Public effective on July 29, 2020 (revised section on how to address counsel and parties).

• Amended Notice to the Profession and Public effective October 07, 2020 (adds “Media and the Public” section under “Virtual Proceeding Etiquette”; housekeeping changes, including references to “remote” changed to “virtual”).

• Amended Notice to the Profession and Public effective December 16, 2020 (revised section I(1)(e) on how to address counsel and parties consequential to NP 24 Form of Address for Parties and Lawyers).

• Amended Notice to the Profession and Public effective February 09, 2021 (adds no photography or screenshots of virtual proceedings to ss. I.1.a. and II.b.; adds ss. I.1.b. and II.c. regarding no publishing

etc. of virtual proceedings; adds cross-references to Access to Court Proceedings Policy; updates s. I.1.j. regarding time limits; and housekeeping changes).

• July 2, 2021: Changes title from “Guide to Virtual Proceedings”; adds s. I.1.a. requiring counsel to use cameras for videoconference proceedings and encouraging self-represented parties, witnesses, and other court participants to do the same; clarifies for counsel manner of dress and location required for appearance; and housekeeping changes.

• July 15, 2021: Changes title from “Virtual Proceedings in the Provincial Court”; and adds definitions of “virtual(ly)” and “remote(ly)” under Purpose, references to attending virtual or inperson court proceedings remotely, “Inappropriate profiles or background images must not be used” to s. I.1.b., s. I.1.i re enabling landscape mode when using a Smartphone, and no smoking or vaping to s. 1.2.l.

• November 30, 2021: Words “sharing, making available” added to sections I.2.b and II.c; “neutral backgrounds can be especially important when there are security concerns for a party or witness” added to s. I.1.b; and housekeeping changes.

• January 19, 2022: Removed Appendix A “Guide for Appearing in the Provincial Court via Microsoft Teams” as that is now a standalone document.

• July 18, 2022: Removes references to “virtual proceedings” and updates requirements for counsel regarding use of cameras in s. I.1.a.

• March 8, 2024: under “Notice” “and observing” removed; s. II.1. revised to replace “observing” with “attending”; and, clarified s. I.1.a regarding self-represented parties, witnesses, and other court participants.

By Direction of Chief Judge Melissa Gillespie Provincial Court of British Columbia

British Columbia Court of Appeal

Registrar’s Filing Directive Court of Appeal Act, s. 38

Issued: 12 March 2024

Effective: 12 March 2024

Cite as: Registrar’s Filing Directive (12 March 2024)

TABLE OF CONTENTS

1. Introduction .

2. Options for filing documents .

3. How to e-file .

4. E-filed documents that must be filed in paper: checklist .

[414]

[414]

[415]

[415]

5. Other documents that must be filed in paper/hardcopy: checklist . [415]

6. At the Hearing .

7. Processing & Other Requirements .

[416]

[416]

7.1 Processing Times for E-Filed Documents, Rule 83 . . . . . . . [416]

7.2 Signatures & Authenticity Requirements, Rule 79(4) .

7.3 Use of Litigation Aids & Artificial Intelligence . .

7.4 Retention of Paper Equivalents .

8. Case Management of Large Appeals .

9. Registry Contact Information . .

1.Introduction

[416]

[417]

[417]

[417]

[417]

•Under s. 38 of the Court of Appeal Act and Rule 5 of the Court of Appeal Rules, the Registrar may provide directives on filing documents.

•This directive provides general directions on how to file documents in the Court of Appeal. Specific instructions, including formatting requirements for the different types of documents filed in an appeal, are found in the completion instructions and the forms.

2.Options for filing documents

•Depending on whether you are a lawyer or self-represented, the Court of Appeal allows the following options for filing documents: [please see table under next bullet]

•When e-filing in criminal appeals, parties must observe the e-filing formatting requirements for the equivalent civil record. At a mini-

Lawyers

mum, documents e-filed in criminal appeals must have readable and searchable text (OCR), page numbering, bookmarking, and/or hyperlinked indexes.

CRIMINAL APPEALS

• e-filing encouraged (see section

• 3 for exceptions and size

• limitations)

• paper filings accepted

CIVIL APPEALS

• e-filing required (see section 3

• for exceptions and size

• limitations)

Self-represented

• e-filing encouraged (see section 3 for size limitations) parties

• paper filings accepted

3.How to e-file

•Court Services Online (CSO) is used to e-file documents. Parties who have never used electronic filing (e-filing) must create a BCeID account (either a Basic or Business account) or a BC Online account and register it with Court Services Online (CSO)

•Anyone having difficulty with electronic filing should contact CSO Support by email at <Courts.CSO@gov.bc.ca> for assistance. Please do not contact the registry for assistance with electronic filing.

•The size limitation for e-filed documents is 200 megabytes.

•Lawyers in civil appeals who cannot e-file should seek permission from the Registry/Registrar to file in paper. As e-filing is mandatory, lawyers should seek an exemption only in rare circumstances. Examples might include where CSO is unable to accept their filing because the system is unavailable, they cannot access their CSO account, or where there are other issues preventing them from e-filing.

4.E-filed documents that must be filed in paper: checklist

Appeal records a If e-filed (required for lawyers in civil appeals) you must provide Appeal records a the registry with three (3) stamped paper copies of the e-filed Appeal records a document within two (2) weeks of e-filing

Factums and a If e-filed (required for lawyers in civil appeals) you must provide statements a the registry with three (3) stamped paper copies of the e-filed Appeal records a document within two (2) weeks of e-filing

5.Other documents that must be filed in paper/hardcopy: checklist

Type of documentFiling Requirement

Chambers records a Must be filed in paper longer than 300 pages a

Sound or video exhibits a When included, indicate in the appeal book index that the Sound or video exhibits a electronic media is being submitted separately. a

a File four (4) identical memory sticks labelled with the appeal file number (#CAXXXXX), CDs or DVDs will not be accepted a

Condensed books a Parties may hand up paper condensed books at the appeal hearing or may file paper copies in advance if they will appeal by Zoom.

Condensed books a These books are optional, but strongly encouraged for larger appeals, particularly those with extensive transcripts. Full civil transcripts are not always before the court. a

Condensed books include excerpts of relevant portions of the appeal book, transcripts or authorities you wish to refer to at the hearing. See completion instructions for details.

6.At the Hearing

•At the hearing of the appeal or chambers matter, judges may work in paper or electronically, or both. With the exception of the full transcript in civil appeals, the Court will have the filed books before them in one or both formats.

•In appeals with large records, paper condensed books are highly encouraged, as judges working in paper may not print and bring all of the books to the courtroom. At the hearing, it is acceptable to provide the Court with references to documents they may need to examine after the hearing, including references to lengthy transcripts and appeal books.

7.Processing & Other Requirements

7.1Processing Times for E-Filed Documents, Rule 83

•E-filed or emailed documents will be backdated to the date they were filed or deemed to be filed. The Court will try to process all e-filings on the day they are filed, but may require up to 24 hrs.

7.2Signatures & Authenticity Requirements, Rule 79(4)

•Court orders, certificates, and documents provided to the Court for evidentiary purposes (affidavits) must be signed.

•Where a signature is required, parties may use an electronic signature or a scan or copy of the original signature, unless otherwise required by law.

7.3Use of Litigation Aids & Artificial Intelligence

•Given the rapid development of artificial intelligence tools, the Court reminds all litigants that they are responsible for the authenticity and accuracy of all materials filed with the Court.

7.4Retention of Paper Equivalents

•Parties are not required to retain paper documents when converting them to their electronic equivalents.

8.Case Management of Large Appeals

•If an appeal involves, or is expected to involve, more than 4,000 pages of material, parties must seek directions from the Registrar as soon as possible, and not less than 90 days before the appeal hearing.

9.Registry Contact Information

•General Inquiries: 604.660.2468

•Maria Littlejohn, Court Scheduler: 604.660.2865

•Michael Chu, Chambers Scheduler: 604.660.2859

•Kristine Dhamrait, Registrar Scheduler: 604.660.2729

Mail or Courier to the Vancouver Registry:

BC Court of Appeal

The Law Courts

400 – 800 Hornby Street

Vancouver, British Columbia

V6Z 2C5

Dated 12 March 2024 at Vancouver, British Columbia

Timothy Outerbridge, Registrar

Supreme Court of British Columbia Notice

Update Regarding Online Booking for Civil and Family Matters

ONLINE BOOKING FOR CIVIL AND FAMILY MATTERS

Since 2020, counsel and parties have had the option of booking Case Planning Conferences (CPCs), Judicial Case Conferences (JCCs), and Trial Management Conferences (TMCs) through the Supreme Court’s online booking system. Beginning in fall 2024, the Court will be transitioning to a fully online booking system for these types of conferences, as well as for trials and lengthy chambers hearings in civil and family matters.

Once the Court’s enhanced online booking system is introduced, all CPCs, JCCs and TMCs will be booked online. As is currently the case, parties and counsel seeking to book those types of conferences will be able to log into the Court’s online booking system (using their BCeID), and select one of the available dates offered by the Court.

Trials and lengthy chambers hearings will also be booked online. In locations where the Court is generally able to provide enough dates to meet user demands, parties and counsel will be able to book their trials and lengthy chambers matters online in the same way they would book a CPC, JCC or TMC.

In locations where the Court struggles to provide enough dates to meet the demands of all users seeking to book trials and lengthy chambers hearings (such as Vancouver, New Westminster and Victoria), the process will be as follows:

•Parties and counsel seeking to book a trial or lengthy chambers hearing will submit, within a “booking window” of several days, a ranked list of their preferred dates among the available dates offered by the Court; and

•Court time then will be allocated among those who submitted booking requests within the “booking window”, so that all users have an equal opportunity to secure dates.

The booking system will track unsuccessful booking requests submitted by a user for a matter, and give a higher priority to the next booking request submitted by that user for that matter.

Currently, trials and lengthy chambers hearings are booked using the Court’s telephone system, which operates on a “first to call” basis. Booking

such matters through the telephone system is burdensome for both Scheduling staff and law firms. The Court has received feedback that in locations where securing dates is particularly competitive, larger law firms (or law firms with resources to hire temporary administrative staff to call into Scheduling on booking days) have an advantage in booking trials and lengthy chambers hearings using the telephone system.

By transitioning from telephone booking to online booking for trials and lengthy chambers hearings, the Court hopes to:

•Reduce the workload of Scheduling staff, allowing them to focus on other tasks;

•Reduce the administrative burden on law firms; and

•Ensure that all parties and counsel who are seeking to book trials and lengthy chambers hearings have an equal opportunity to do so.

PREPARING FOR THE TRANSITION

The purpose of this announcement is to give parties and counsel advance notice of this change so they may prepare for the transition. Parties and counsel who do not already have a BCeID will need to register for one in order to log in and use the online booking system. Information about how to register for a BCeID is available here [see online: <https://www.bceid. ca/register/>].

More information regarding the transition to online booking will follow in due course. The Court thanks all users who have provided feedback on the existing telephone booking system, which has been helpful to the Court in improving and modernizing its approach.

Dated February 5, 2024 at Vancouver, British Columbia

By Direction of Chief Justice Christopher E. Hinkson Supreme Court of British Columbia

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

NOS DISPARUS

By R.C. Tino Bella

Thomas Scott

On July 13, 1936, one of the hottest days in Montreal that summer, at 31°C, General Thomas Michael Scott was born to Evan and Dorothy (Pigeon) Scott. His mother had been reading a novel about a boy who overcame obstacles. He was called “the little general”. This boy’s story struck a chord with her, and she named her newborn “General”.

Tom died at age 87 of a malignant brain tumour at the Prince George Rotary Hospice, surrounded by his family, on January 11, 2024. He was lucid and joking until a few days before he died. During his last days, he said, “I am 87 and have had a wonderful life. I am thankful. I was blessed.”

Tom adored his family. To his grandchildren, he was Vovo (“grandfather” in Portuguese). He sat on the floor, entertained them and was their special pal. Jennifer and her husband, Trevor Dungate, have a son Aydon and a daughter Aila. David and Paloma have two daughters, Kayla and Sophia. Tom is also survived by his wife of 52 years, Florence.

Growing up in the working-class neighbourhood of Verdun, Tom spent his early years playing hockey in the back alleys and bussing into Metro Montreal to see early hockey greats like Maurice “Rocket” Richard.

Tom graduated from Verdun High and followed his father’s footsteps, attending Mount Allison University in Sackville, New Brunswick. He must have been very popular with the young women as he could dance a wicked jive.

Why did Tom turn to law?

First, he was not suited to jobs like being a mechanic, as he demonstrated later when he bought a Volkswagen Rabbit and complained to the dealer when it stopped running. They filled it with gas, and it ran fine.

Second, he enjoyed debating in high school and university and associated debating with law.

Third, he wrote for a student newspaper at Mount Allison and aspired to become a journalist. He sought advice from a mentor who told Tom that studying law would give him a leg up. Tom never looked back and completed his law degree at Dalhousie University in Halifax, Nova Scotia.

To help finance his studies, Tom served in the Royal Canadian Naval Reserves at the Pacific Naval base on Vancouver Island and ports in Europe during the summer months. He wisely avoided using his first name, General, in the navy. I only heard him use General when he was joking.

Tom articled in Vancouver for Mr. Maitland, who favoured taking articling students from the Maritimes. After his articles, Tom was invited to join Wilson, King, and Company in the then-booming town of Prince George, and he practised law there until 1973. Hub King (1906–1997), one of his three partners, had started his practice in Barkerville in 1933 in a cabin with a desk, a stove and a cot in the back. He mentored Tom, especially about ethics, and Tom admired and emulated him.

In Prince George, Tom met his “Southern Belle” Florence Reed. The two were married in Louisiana on April 1, 1972. Their son, David, was born in 1974, and their daughter, Jennifer, was born in 1979.

Having lived in small-town Nova Scotia, Tom never wanted to live in a big city or work in a large law firm. In the early 1970s, Wilson King had grown to 20 lawyers. At a Cariboo bar convention, he joked with Lee Skipp, who had run unsuccessfully as a Liberal candidate in a provincial election, about when, with his Liberal ties, Lee would be appointed as a judge. “When I am appointed,” said Lee, “I want you to buy my practice.” When Lee was appointed as a judge to the County Court in Vancouver in October 1973, Tom did that and joined Alan Vanderburgh, Mike D’Arcy and Tom Smith as partners in Williams Lake. He embraced his move there in 1974 and said it was the best decision he ever made. The community welcomed them, and they made lifelong friends who became family.

Although Tom made a few forays into the courtroom, he found his comfort zone as a solicitor. However, in the early 1980s, he appeared in the Supreme Court in Prince George on a placer claim case from Likely with Robin Smith (later a Provincial Court judge). He and Robin were so elated when they won that they failed to read the road signs when heading home. After some time, absorbed in congratulating themselves, they found themselves driving west to Vanderhoof instead of south to Williams Lake.

At about the same time, he had a case in Supreme Court in Williams Lake and barged into the female barristers’ room to change, startling the female

barristers there. Tom did not realize there was such a room. In his day, Prince George had no female lawyer until Agnes Krantz joined Alan Bate in 1972. She changed in the barristers’ room with the men until the government finally got the message and provided a female barristers’ room, but that was after Tom left Prince George.

When his firm recruited Angela Ammann as an articling student in 1999, Tom widened the cases he accepted to give her experience, and they appeared in court and acted on a Human Rights Tribunal case together. Angela said that Tom often took extra time to help students.

Tom embraced his work and the camaraderie of the office. He often smiled. One of the staff said he was terrific to work for. “I remember him trotting down the hall with a file flopping about,” she said. “He was smiling and muttering, ‘Top priority. Top priority.’”

Elizabeth Bayliff, now a retired Provincial Court judge, who worked with him, said, “In my memory, Tom Scott is always laughing or joking—seeing the ridiculousness of a situation or an action. If one were inclined to be stuck up or rigidly opinionated, that situation could not last long around Tom’s pleasant but perceptive ribbing. I believe Alan Vanderburgh also loved that about Tom. A law partnership with Tom Scott could not ever have been too solemn. Coffee time at the office, when I started working there back in the mid-1980s, consisted of a lot of humour and witty banter. I learned so much about myself and others just by being present.”

Tom loved reading books about Canadian politicians and politics, and he loved John Grisham’s novels. His favourite reading, however, was the Advocate, where he homed in on the obituaries. He had a stack of them by his bedside the week he died.

He was thrifty and eschewed fancy cars. When he bought a car, Florence drove it while he drove the old rattletrap. “When he was finished with a car,” said Florence, “it was ready for the junkyard.” She said he didn’t flinch, however, when buying a home.

Whenever Florence was away visiting her family in Louisiana, Tom would get up to mischief. He would hide away Florence’s Daulton figurines and replace them with fake flowers from the Dollar Store. Once, he decided to refresh the flat-dark-brown paint on the fence around their yard. He noticed the piano bench and bookcase looked worn, so he touched them up with his flat brown paint. This horrified Florence when she returned home, but she knew how to handle Tom. She would slowly and deftly whisk away the fake flowers and return her figurines. However, the bookcase and piano stool were relegated to Tom’s man cave.

Tom visited his father in Nova Scotia for a week every fall. They sang Aunt Rhody and other Burl Ives songs and recited Bettie’s Boil, The Cremation

of Sam McGee and other Robert Service poems. On his last visit, when Tom’s father was in the hospital, and they were trying to talk, a man in the room was boisterous and did not quiet down when Tom asked him politely to do so. Another occupant turned to the boisterous man and said, “Be quiet. Those two are intellectuals.” The man shut up.

Tom was not a gourmet. Denny’s was his favourite restaurant, and after he died, Florence found $300 of Denny’s gift cards in his wallet.

Tom joined Kiwanis, the Williams Lake Theatre Club, St. Andrew’s United Church and several choirs. He was a talented actor who was in demand for many productions. He and my wife, Midge, won a jive contest at a cabaret in the early ’80s. On his 87th birthday last July, he invited her to jive. They thought themselves cool until they surveyed their performance in a video.

In the late 1980s, I needed an actor to play a suspect to be interrogated by skilled polygraph operators, Sergeants Chamberlain and Tidsbury, at a judges’ seminar at the 108 Mile Resort. Polygraph results were not allowed in court then, but sometimes a suspect would confess to a crime. Then, the issue was whether the prosecution had proven voluntariness beyond a reasonable doubt. Tom accepted my invitation to play the suspect. During our mock interrogation, you could hear a pin drop. The skilled performances of the interrogators and Tom riveted the judges. A Court of Appeal judge present said how the performance would help him if a polygraph issue came up in his court.

After Tom retired from his legal practice at age 69, Tom and Florence relished their time as snowbirds in Mesa, Arizona. Tom spent 18 winters there, playing tennis daily until he was 85.

Every year, shortly before Christmas, Tom invited many, especially those with musical talent, to their home for a carol sing. Florence provided food and drink. Tom rounded everyone up, placing his tenors and sopranos where he could vigorously and enthusiastically conduct his choir. There were always a few who good-naturedly rebelled—mainly those working in the kitchen. One Christmas, my wife and I gave Tom a baton. Someone whipped his baton away at one event and began conducting. What a shock for Tom—he was used to being in control. He recovered quickly, though, and, with a baton in hand, led us out in the cold and snow to carol around the neighbourhood.

He also conducted singers at gatherings at our home on New Year’s Day. We sang seasonal and folk songs like “Michael Row the Boat Ashore”.

We closed our New Year’s celebration with Tom Scott gathering us in a circle and leading us in “The Hokey Pokey”:

You put your one hand in You put your one hand out You put your one hand in And you shake it all about You do the hokey pokey

And you turn yourself around That’s what it’s all about

He would have loved the sign someone sent in his remembrance: “The Hokey Pokey Clinic. A place to turn yourself around.”

We closed our New Year’s evening with warmth in our hearts and tears in our eyes, with Tom conducting us, holding hands and singing Robert Burns’s “Auld Lang Syne”:

For auld land syne, my dear, for auld lang syne, wi’ll take a cup of kindness yet, for auld lang syne.

We then hugged, and people went home. We miss you, Tom.

Thomas Smith, with help from Florence and David Scott

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NEW JUDGES

By R.C. Tino Bella

The Honourable Judge Nicholas

J. Preovolos

On April 21, 2023, Nicholas J. Preovolos was appointed to the Provincial Court of British Columbia. Nick was born in New Westminster in 1970 to John and Irene, immigrants from Greece, and grew up in the Edmonds neighbourhood of Burnaby with his younger sister Maria.

Nick dreamt of being a professional hockey player, playing out those dreams on the streets of Burnaby in road hockey games. There was no budget in his working-class family for ice hockey and his warm-blooded Mediterranean parents did not have an appetite for spending time in ice rinks at ungodly hours of the morning. On occasion, Nick was known to conscript his younger sister or mother as goalies to practise his shooting. There is an undenied rumour that his mother suffered a black eye from a blazing slap shot. It seems that he did not think it essential to provide masks for his volunteer goalies.

Growing up, Nick was a Beaver and a Cub Scout, took piano lessons and had a short-lived stint as a basketball player in Grade 7. Nick’s real priorities were academics and Greek language lessons. He excelled at both. Indeed, Nick was an exceptional student in every subject, especially mathematics. By his first year of high school, he was thinking of a career as an electrical engineer at the urging of his father, who worked with engineers and shared his passion for math and science. Nick’s career path changed when a debating club was started at his school and Nick was invited to join. Nick turned out to be a natural at debating and competed in regional and provincial tournaments in both “cross-examination” and “parliamentary” formats. In Grade 11, he and Andrew Gay, K.C., formed a team and placed second in the British Columbia Provincial Championship in 1987. Nick went on to com-

pete in the Canadian National High School Debating Championship later that year in Toronto.

Early in Nick’s life, and in part because of lessons he learned from his extended family’s experiences of injustice during and after the Greek civil war—not to mention his own observations as a teenager of the corrosive effect of clientelism on the integrity of the Greek legal system—Nick developed a passion for the rule of law before he even knew the term for it. This, together with debating, was the genesis of Nick’s interest in law.

Influenced by his father’s interest in politics and current events, Nick gravitated to student government, culminating in his election as student council president in Grade 12 at Burnaby Central. Upon graduating, he was awarded Burnaby Central’s gold medal for being the top all-round student. Nick was keen to “go away” for university and applied for scholarships, without which he would not have been able to leave the Lower Mainland. In 1988 he was awarded one of McGill’s Greville Smith scholarships, which covered his undergraduate tuition and living expenses for four years. This was McGill’s top scholarship for out-of-province high school graduates. It provided Nick not only with funding for his undergraduate studies but also a broader perspective on Canada and the opportunity to make lasting friendships with students from all over the world.

Nick graduated with a bachelor of commerce degree in economics (honours) and a minor in finance. He was then off to law school at the University of Toronto. His summers were spent back with his family in Burnaby, working for the City of Burnaby’s Property Tax Department for five consecutive years. Before he landed that job, he worked as a salesperson at an optical store, a banquet waiter at the Hyatt Regency Hotel, a clerk at BC Liquor stores and a telemarketer for a carpet cleaning company.

Just as Nick graduated from the University of Toronto Faculty of Law, his younger sister started law school there. He insists that hero worship made his younger sister study law. She was recently promoted from Associate General Counsel at TELUS in Agriculture and Consumer Goods to VicePresident, Legal Services.

After his second year of law school, Nick was hired by Ladner Downs as a summer student. That led to articles in 1995. Articling at Ladner Downs was demanding. Sixty-hour weeks were not uncommon, but there was a fierce esprit de corps among the students. Christmas skits were the highlight of his articling year, as the entire class of 12 students mocked the lawyers, especially some of the senior partners with delicate egos, at the firm’s Christmas dinner. After the performance, which was a spectacular hit, the firm instituted a new policy: Christmas skits had to be taped and vetted. No more live performances.

While articling at a downtown firm was supposed to be prestigious, it could also lead to surprising demands. He never expected to be flown in a partner’s Cessna 172 floatplane from the Bayshore to a client’s house in the Gulf Islands to have documents signed. The pilot told him the plane would break up if they landed by the marina because the surf was too rough. Instead, the plane landed in front of a popular beach in the middle of August. Wearing a new suit, Nick had to take off his shoes and socks and roll up his pants above the knees to wade up to the beach. Children and adults gathered around to watch this apparent VIP deplane.

Articles were followed by three years as an associate in the securities law practice group and a secondment to the Vancouver Stock Exchange. He acted for investment banks and nascent public companies in private financings and initial public offerings, as well as mergers and acquisitions and other commercial transactions. He then moved to Fraser Milner Casgrain in 1999 where he continued his work as a solicitor until he was hired as inhouse legal counsel at QLT in 2001. At QLT he worked under his mentor, Celia Courchene, a former partner at Ladner Downs who had hired him as a summer student and articling student years earlier. After his time at QLT, Nick took a few months off in 2002 to travel in Europe. When he returned he worked on contract and began considering his next move.

While Nick was fascinated by the world of finance, he began to consider a career as a barrister, which was what had sparked his interest in law in the first place. He teamed up with Neal Steinman to form a firm in Vancouver in 2004, focusing on commercial and shareholder litigation and insurance defence. Nick’s claim to fame in his collaboration with Neal was representing Canada Post in a constitutional case about the packaging of “sensitive” materials for mass mailing. Search “sex & party & Preovolos” on CanLII and you will find the case.

When Nick met Harry Stevenson, a senior criminal lawyer, Harry suggested that being a criminal lawyer was as close to being a full-time barrister as possible. While initially reluctant, after working on a few cases, Nick was hooked and criminal law was added to his practice. Under Harry’s careful guidance, Nick’s civil law sensibilities about the standard of proof and Charter rights were corrected and a passionate criminal lawyer was born. In 2004, he appeared in his first criminal jury trial with Harry and Michael Mines. All three clients were acquitted of kidnapping by jury nullification. Eventually Nick found his way to the Supreme Court of Canada on a criminal appeal in 2018.

In 2011, Nick relocated to New Westminster to join the office of Robert Dick to focus nearly exclusively on criminal law. New Westminster was the

ideal location for Nick’s criminal practice and home life as it was central to all courthouses in the Lower Mainland and Nick’s home as well. While practising with Robert Dick, Nick was joined by Jodi Michaels and Dale Melville, with whom he formed lasting friendships and enjoyed practising for several years. Just before COVID-19 struck, Nick, Jodi Michaels and David Milburn set up a new office together in New Westminster in the historic former courthouse now known as Begbie Court.

Nick married Lambroula Pappas in 2007. Lambroula, a professional opera singer and teacher, added some drama and colour to his life. By her decree, she shall hereinafter be referred to as the “love of his life”, an expression that irks Nick. Nick and the love of his life have two children, Yianni and Alessia, 14 and 12 years old. Nick has lived vicariously through his bright and talented kids, even coaching them in soccer and baseball—as they say, those who cannot do, teach. Nick has especially enjoyed watching his son play ice hockey and wear the “C” on his jersey.

Outside of his professional life and family life, Nick’s passion is his heritage, especially Greek history and philosophy. Nick has been to Greece nine times. On every trip he makes a pilgrimage of sorts to the Acropolis of Athens to marvel at the splendour of the site with Athens in its shadow. He feels a deep connection to the land of his ancestors, enjoying life in the simple villages of his parents as much the beautiful Aegean, ancient sites and museums of Greece. Fluent in written and spoken Greek, Nick explores the country with ease, connecting with relatives and strangers alike. He considers his heritage a wonderful gift and shares his love of Greece with his children at every opportunity, earning himself unflattering comparisons to the father of the bride in “My Big Fat Greek Wedding”.

Nick’s passion for his heritage has translated into volunteer work with the Canadian branch of the American Hellenic Educational Progressive Association (“AHEPA”), an organization founded in Atlanta in 1922 to combat racism and discrimination against Greeks and promote Hellenism, education and philanthropy. For years, Nick held executive positions with AHEPA in Vancouver and Burnaby.

An article about Nick would not be complete without mentioning his mischievousness and sense of humour. Nick enjoys slapstick comedy, British humour, stand-up, puns and dad jokes. He is also an incorrigible prankster with a talent for accents and impersonations. He would occasionally call administrative assistants and other lawyers and impersonate a potential new client making outrageous statements and demands. In time, I have no doubt that Nick’s judicial colleagues will be terrorized by his tomfoolery. Once in a while, Nick’s sense of humour even found its way into the courtroom.

Early in his civil litigation days, Nick had a case he refers to as Young Turk v. Old Turk. The parties were a young Turkish man and an older Turkish man who agreed to open a pizzeria together. Things went awry when the older man shut the young man out of the business but kept his cash investment. Nick acted for the young man, and during cross-examination of the old man asked, “Why didn’t you issue receipts for the cash your partner gave you?” The old Turk replied, “Sir, he didn’t need a receipt, you can always trust a Turk.” Without hesitation, the follow up question was, “You do realize you’re speaking to a Greek?” Laughing, Mr. Justice Blair wondered why it had taken Nick so long to make such a crack.

In the midst of a 13-week kidnapping trial of multiple co-accused in the Supreme Court, Nick made an unintentionally humourous objection. During the testimony of an expert witness on tracking the movement of cellular telephones by the pinging of signals to cell towers—none of which was disputed—Crown counsel distributed coloured markers to defence counsel and expected everyone in the room to draw lines together with the expert witness on their copies of documents identifying cell tower locations in telephone metadata. There were literally hundreds of pages to highlight. This went on for the better part of a day and was far from over when Nick, never shy about speaking his mind, objected, “We are all going to be rendered comatose if this continues.” Never were truer words uttered in court by counsel. The next day the witness continued, but the coloured lines had been drawn in the documents in advance.

In a criminal case in which his client was charged with assaulting a bus driver with a longboard (skateboard) on a bus, Nick tested the implausibility of that claim by having his client raise the skateboard above his head as alleged. When it struck the ceiling of the courtroom, Nick remarked, “Your Honour, if the skateboard doesn’t fit, you must…” The judge stopped him mid-sentence, apparently not as amused by the quip as Nick.

We finally come to the real point of this profile: Nick’s appointment to the Provincial Court bench. It is not often that a prospect for the bench arrives with such varied experience and such an appreciation of the principles of justice and fairness and compassion. The latter came during Nick’s criminal practice, when he witnessed firsthand the impact on accused persons of violence in the home, substance abuse, untreated mental disorders, the effects of residential schools and the marginalization of Indigenous people in this country.

Nick sees himself as the grandson of farmers, the son of immigrants and a kid from the working-class Edmonds neighbourhood. In truth, he is probably more comfortable in the company of immigrants and blue-collar

workers than professionals. It is this connection to ordinary folks and his ability to relate to people that, in combination with his commitment to fairness and intellectual rigour in the application of the law, make him an excellent addition to the Provincial Court of British Columbia.

The Honourable Judge Hollis Lucky

The Honourable Judge Hollis Lucky was born in North Vancouver long before the Shore’s municipal governments imposed a mandatory Arc’teryx dress code. Hollis was raised alongside his older sister and younger brother. We are not aware of any misdeeds in his childhood, so we assume he was a good kid. During his adolescence, the family moved to Wales in the United Kingdom for his father to attend university as a mature student. Hollis’s earliest academic experience was a formative one. In his first days, a Welsh classmate asked him bluntly, “Who do you support?” Surprised by the young student’s keen interest in politics, Hollis gave his answer in earnest before reversing the question upon his classmate and inquiring whom he supported. Bemused by Hollis’s response, the classmate replied that he supported Manchester United F.C.

The British experience was formative. Hollis quickly immersed himself in European sport culture, joining various athletic teams for football (a game with structured rules and theatrical performances, akin to criminal law), rugby (a game with no apparent rules but lots of brutality, akin to family law) and cricket (an interminable game with unnecessarily elaborate rules, akin to civil law). Beyond foreshadowing his future practice areas, he also became a Manchester United F.C. “supporter” himself.

The family’s time in Wales concluded a couple years later. Hollis returned to this side of the pond and graduated from Sutherland Secondary in North Vancouver before pursuing a sociology degree at the University of British Columbia. In another unique confluence of sport and education, Hollis ran varsity track for UBC’s rival Simon Fraser University, which had an American collegiate circuit and allowed Hollis to compete against a large

pool of talented athletes south of the border. His first track meet in Seattle, Washington, was … enlightening. Hollis re-evaluated his prospects and considered whether his talents might lie elsewhere before setting his sights on law school.

In the summer of 2004, Hollis packed his bags and headed on another oceanic voyage, this time for a trip much shorter in distance, but much longer in duration and emotional strain: the Tsawwassen to Duke Point ferry run. Once safely across the Strait of Georgia, Hollis commenced the study of law at the University of Victoria. He insists his academic record was “flawless”, but when asked for records to fact check this story, his reply was to “get a warrant”. The true value of his efforts during this time, however, was his term at the Law Centre, where he provided advice and representation to members of the perpetually large class of people who neither qualify for legal aid nor can afford counsel. The Law Centre catalyzed twin themes of Hollis’s legal career—viz., access to justice and firm but collegial advocacy.

Upon graduation in 2008, Hollis earned an articling position at the Legal Aid BC office in Prince George. His time at Legal Aid reinforced his interest in litigation and assisting people in underserved northern communities. Following his call to the bar in 2009, Hollis joined the offices of Silversides, Merrick & McLean in Prince Rupert, where he was mentored by the eminent counsel Sam McLean, Don Silversides, K.C., and Steven Merrick (as he then was before his appointment to the Provincial Court bench). Under their tutelage, Hollis refined his advocacy skills in criminal and family law proceedings, and was privileged in representing clients on Haida Gwaii. Most importantly, Hollis adopted his principals’ irreproachable standard of integrity, professionalism and civility.

During this period, Hollis took a fated vacation in Mexico, where in a Hollywood rom-com fashion he developed his enduring love for his spouse Hana. Although Hana was residing in Prince George at the time, she opted to trade in the snow for the rain and moved to Prince Rupert to be with Hollis. In 2013, the two of them traded in the rain for rain plus high cost of living, and moved back to Hollis’s native North Vancouver.

With his new-fangled courtroom talents, Hollis persuaded the now Honourable Judge Danny Sudeyko to bring him on board. Both shared the values of serving their community and supporting the “little guy”. It undoubtedly helped that Judge Sudeyko also shared Hollis’s “support” for Manchester United. The dream team was disbanded in August 2015 when Judge Sudeyko was appointed to the Provincial Court bench. Suddenly Hollis was “running” his own firm. (More accurately, Susan Cowan, Danny and

Hollis’s long-suffering office manager were running the firm, as she continues to do following Hollis’s own departure.) Over the course of the next seven years, Hollis maintained an increasingly rare multi-disciplinary practice, providing excellent representation for legal aid and private clients in areas of criminal, personal injury, family and child protection. He even expanded the firm with a satellite office in Prince George to service the northern region as agents for the Public Prosecution Service of Canada. From 2013, Hollis was regular counsel within the Bella Coola, Bella Bella and Klemtu circuit courts, and was honoured to be treated as a guest within these Indigenous communities, describing these circuits as a highlight of his career.

Hollis represented clients at all levels of court with trademark gallantry, including a criminal sentence appeal that he enthusiastically pursued to the Supreme Court of Canada. During the hearing, held virtually due to COVID19 restrictions, Hollis deftly advanced his submissions amidst frequent interruptions, and with the skill of an air traffic controller responded to the difficult queries posed by the panel while simultaneously managing innumerable texts, emails and electronic notes sent by his co-counsel from the peanut gallery. While Hollis’s position was largely rejected, the case ultimately harmonized principles of procedural fairness among the provinces. Evidently a glutton for punishment, each decision Hollis makes as a judge is a new opportunity to reflect that now more than ever, he is at the mercy of the (appellate) courts.

Hollis contributed to the legal profession beyond the courtroom. Following the death of George Floyd in 2020, Hollis developed and co-hosted a 2020 Continuing Legal Education course titled “Racism and the Law”, marshalling an impressive list of panellists including former Chief Justice of Canada Beverley McLachlin, Judge David St. Pierre, Judge Alexander Wolf and leader of the New Democratic Party Jagmeet Singh. The event was a resounding success, with over 300 people in attendance.

Notwithstanding his demanding schedule, Hollis volunteered on the executive of the North Shore Restorative Justice Society and was an active member of the North Shore Bar Association, serving as the association’s vice president at the time of his appointment to the bench in July 2023. In addition to those standing obligations, in 2019 Hollis used his firm to establish the Annual Law Charity Golf Tournament, which sold out every year from its inception. In the tournament’s latest iteration in 2023, Hollis raised $12,000 for the Harvest Project, a local charity supporting North Shore residents experiencing poverty and food insecurity. Hollis’s favourite task of the tournament—above the golf even—was acquiring donations for the

silent auction. He offered other local businesses the opportunity to make meaningful improvements to their shared community.

Indefatigably cheerful, Hollis’s spirit buoyed the confidence of his small stable of junior lawyers. He maintained an open-door policy within the office, though he could not have kept the door closed if he tried. Whether the topic was professional or personal, Hollis provided a sympathetic ear, wise advice, constructive encouragement and ongoing support, even when a “quick question” usurped an hour of his time.

Lawyers are not known for balanced lives, often bringing work into their homes. Hollis, conversely, brought golf into the office. Sheets of AstroTurf lined the photocopy room. Unsatisfied with practising solely his short game, Hollis bought a chipping net for his irons. Shortly thereafter a sheet of broken glass lined his office floor. Apparently, he missed the memo about whiffle balls. Hollis is also an avid curler, but fortunately (or perhaps unfortunately?) lacked the ingenuity or budget to reproduce the necessary conditions for practising curling at the office.

As if undertaking his new role as a Provincial Court judge and subsequent move to Vancouver Island provided inadequate excitement, in August 2023 Hollis and Hana welcomed their first child, Winston, into the world. Though Hollis already possesses the necessary work ethic and legal experience for the bench, fatherhood will undoubtedly provide intensive training in other useful qualities, such as patience in the face of difficult personalities, interpreting gibberish and non-sequiturs, and dispensing timeouts.

In January 2024, Hollis and Hana moved to Vancouver Island, where Hollis has already taken up chambers in Duncan as a judge of the Provincial Court. He is sorely missed within the North Vancouver bar; the Vancouver Island region certainly got Lucky.

•21-year

•Presided

•27

•Effective

Immediately

East Point – Saturna Island, British Columbia

LETTERS TO THE EDITOR

Dear Editor,

Re: Woods, T.S., “Whither Judicial Review” (2024) 82 Advocate 191

Should any court be able to set aside legislation on the ground that it is “unreasonable”? Retired Judge Thomas Woods’ article in the March Advocate argues that judicial review is a necessary remedy in any democracy to keep governments, and their multiple offshoots, acting within the law. No one would argue otherwise.

However, the judge is wrong in asserting that the power of judicial review in Israel is anything similar to that which exists in common law jurisdictions.

The courts in Israel have the power to set aside almost any government action or decision on the ground that it is unreasonable. That is, the judges can decide for themselves whether the action or decision is unwise. There need not be

By R.C. Tino Bella*

shown any deviation from the law in order for the court to intervene. There is no other country that permits such judicial power.

Woods quotes from an article written by Sir Nicholas Blake which includes the following: “The judiciary does not seek to become the prime decision-maker in such cases but to ensure that all parts of the separate institutions of the state are working harmoniously within their proper spheres”.

But that is not the principle on which Israeli courts operate.

Woods states, “If fully realized, PM Netanyahu’s ‘judicial overhaul’ would enable the Knesset to reverse the decisions of the country’s highest court, and by a simple majority”.

Yet, in Canada, because of the “notwithstanding clause” we have a constitutional framework which allows parliament or the provincial

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

legislatures by a simple majority to protect their legislation from judicial review, or to overrule a judicial decision even when the legislation has been determined to breach the Charter —that is to say, when the legislation has been determined to be unlawful , indeed unconstitutional. As I have previously argued in these pages, that is a welcome restraint on activist judges. (See Kirkham, D.B., “The Notwithstanding Power: Our Constitutional Protection against Judicial Overreach” (2023) 81 Advocate 843.)

No country can properly operate when judges can willy-nilly set aside the actions or decisions of duly elected legislators on the grounds that, in the court’s view, or perhaps in the view of a razor-thin majority of the judges on the court, the action or decision is merely unreasonable.

What expertise do judges have to make decisions on social or economic issues? Answer: none. What recourse do the people have when the judges make wrong decisions on what is reasonable? Answer: none.

The underlying principle of any democracy is that the people choose the politicians in whom they vest the power to decide, and the people have the power to throw them out at the next election. In the meantime, the elected and accountable legislative bodies, with ample resources and expertise to

make decisions on economic and social policies they deem to be in the best interests of the country, rule.

Politicians are accountable. Judges, secure in their positions, are unaccountable. They should be restricted to finding facts, and applying law to those facts. This is their sole field of expertise. They should have absolutely no say in determining the reasonableness of government policy.

Any leader of Israel, in acting to remove this power from the courts, is acting in the interests of protecting, not undermining, democracy.

Yours truly, D. Barry Kirkham, K.C. West Vancouver

Dear Editor, Re: Bruce Woolley, K.C., “Real Estate Agency Law in British Columbia – Part I” (2023) 81 Advocate 823

Agency in real estate law does not interest me, but I thoroughly enjoyed Bruce Woolley, K.C.’s recollections of life in the west side of Vancouver in the 1950s and ’60s.

Although my parents had a similar objective of “purchase, renovate, sell and move on” as Bruce’s, they did not enjoy the same success. Their realtor was Lindsay Cleland, who had a small office in Marpole.

Bruce’s recollection of the “men” who sold items on the doorstep or at roadside reminded me of similar mobile salesmen appearing at our door in Kerrisdale. I recall the Fuller Brush man going through his large suitcase while my mother went to the kitchen to see if she had enough “housekeeping money” to make a purchase. As for the milkman, I always wondered what my mother did with the cream at the top of each bottle left on our front doorstep.

Always working on some improvement project on our homes, my father appeared to have little time to himself. Bruce’s father must have had a similar experience.

Articles such as Bruce’s and the Nos Disparus section encourage me to maintain my retired membership.

Regards, Kevin Moore Vancouver

Dear Editor,

Re: Fed-Up Retired Member, “Grumble” (2024) 81 Advocate 289

All he (almost certainly “he”) needs is love. As for “rubbish” in Bench and Bar—never! I hope he is very much in the minority. Keep it up. I don’t know the names either;

I just read for the rubbish—and the juvenile baloney, too, but I enjoy the rubbish more. I often marvel at how each was unearthed, especially when there is a theme, such as gold in the March 2024 issue.

But not everything need be gold, Fed-Up Retired Member. As the Prince of Morocco reminds us in The Merchant of Venice , it can still glitter without being gold.

And some random comments:

P. 272: “trained lawyers” –Clearly to be preferred to the untrained variety.

P. 296: Princess Louise – I was surprised to learn (but am not disputing) that Princess Louise was in the Vancouver-Nanaimo service, as she was fitted for the Alaska run, with large dining areas and staterooms for all, unlike those in the Nanaimo or Victoria/Seattle service. I write from personal experience, as I had the good fortune to travel in her to Wrangell, Alaska in 1954, on my way to a summer job in northern B.C., where I managed to avoid a grizzly encounter: see “Narrow Escape near Telegraph Creek”, British Columbia Magazine, Fall 2023.

Best regards, John Edmond Ottawa

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•

LEGAL ANECDOTES AND MISCELLANEA

By D. Michael Bain, K.C.*

BROTHER XII – PART II: THE DAWNING OF THE END OF THE AGE OF THE AQUARIAN FOUNDATION

Part I of this article1 told of how an Englishman named Edward Wilson came to British Columbia in the early 1900s and started a small family that he promptly deserted. When he returned to the province in 1927, he was a spiritual leader in the Theosophy movement—as Brother XII (one of 12 ascended masters whose messages he could receive and channel for the benefit of humanity), he identified areas near Nanaimo, including Cedarby-the-Sea and Valdes Island, where his followers could assemble and prepare for Armageddon. Brother XII formed a society, the Aquarian Foundation, with the help of a Vancouver lawyer named Edward Lucas. While he was raising funds from his often socialite followers, Brother XII also managed to seduce and impregnate a married woman named Myrtle Baumgartner. He explained to her that they were the reincarnated Egyptian deities Osiris and Isis, and Mrs. Baumgartner now carried the soon-tobe-reincarnated god Horus, who would lead humanity into a new spiritual age. Osiris then squirreled Isis away on Valdes Island “to give birth to the next Christ”.

While Brother XII’s spiritual movement took on decidedly end-of-theworld conspiracy-theory-laden beliefs, it continued to expand its developments at Cedar-by-the-Sea and the “Mandieh Settlement” on Valdes Island. Followers poured in and teams of workers were established to build accommodations, meditation centres and communal areas for the growing community. All of this construction took money, of course, which turned out to be not much of a problem for Brother XII to raise.

* D. Michael Bain, K.C., is the editor of the Advocate, and for this article he is indebted to the good work of John Oliphant, Brother XII: The Strange Odyssey of a 20th Century Prophet (Halifax: Twelfth House Press, 2006) and Justine Brown, All Possible Worlds: Utopian Experiments in British Columbia (Vancouver: New Star Books, 1995).

For example, an 85-year-old retired lawyer from Carthage, Missouri named Oliver G. Hess wrote to Brother XII and told him that he wanted to contribute $20,000 to the Aquarian Foundation. When he vacillated, Brother XII dispatched Vancouver lawyer Edward Lucas to Missouri to finalize the arrangement (the pair bonding over a shared interest in the American Civil War), and the Canadian Bank of Commerce in Nanaimo soon received bonds worth $20,000 comprising “The Oliver G. Hess Trust”, which named Brother XII as the sole trustee authorized to use the funds as he saw fit to advance the work of the Aquarian Foundation. Similarly, after only a onehour meeting in the King Edward Hotel in Toronto, Brother XII was able to get a wealthy socialite from North Carolina, Mary Connally, to write a cheque to him for $23,000 to establish the Mandieh Settlement on Valdes Island. Later the “Poultry King of Florida”, Roger Painter, donated another $90,000. These 1928 sums would be the equivalent today of about $320,000 and $1,250,000.

Financial matters aside, things were not going well for Osiris and Isis as Myrtle Baumgartner suffered a miscarriage. The experience was devastating for her. Nevertheless, determined to reincarnate the next Horus, she conceived a second time, and the couple had a new horoscope for that child commissioned—one that confirmed his destiny to be the next Horus. This pregnancy, however, also ended in a miscarriage and the impact of these losses on Mrs. Baumgartner’s mental health was severe. The relationship deteriorated and Brother XII, who initially kept her secluded on Valdes Island, later sent her away altogether on the basis that she was “insane”. This development did not sit well with some of Brother XII’s followers, including some of the Aquarian Foundation’s governors. As Edward Lucas later put it: “If this thing has been decreed by the gods, how does it happen that Horus is a miscarriage?”2

Criticism of Brother XII also came from the General Secretary of the Theosophical Society in Canada, Albert E.S. Smythe, who, in an editorial in The Canadian Theosophist entitled “Blind Leaders of the Blind”, denounced Brother XII and labelled his followers “boobs”, “dupes” and “cuckoos”. Smythe described Brother XII’s teachings—particularly those pitting Protestants against Catholics—as “diabolical” and suggested that he was a fraud. Brother XII’s written response to the publication certainly did not pull any punches:

This hate-inspired misanthrope … this Jesuitical prevaricator … this cowardly traducer … He is a pusillanimous mouther of empty words … a typical Mr. Facing-both-ways … so far as any official recognition is concerned, this man will die, choked by the lies he utters … the man is already dead to truth, to honour and to Brotherhood … Those who have

vision know that the lower astral worlds already yawn for him. … What can be the mental attitude of such a monster of hatred and slander? … the loathsome maggots which infest his brain … this venom infected creature … this creature of poisoned fangs … Albert E.S. Smythe has made the Theosophical Society in Canada a house of lies.3

One of the governors of the Aquarian Foundation asked whether returning evil for evil was a principle consistent with the teachings of Buddha and the Christ and suggested “one has the right to expect something more than an exhibit of bar-room language in lieu of an argument” from the Aquarian Foundation’s spiritual leader.

Disillusionment spread among the governors of the Aquarian Foundation and in September 1928 they held an urgent meeting in Edward Lucas’s law office in the Standard Bank Building in Vancouver. They expressed concern about Brother XII’s temperament and sanity as well as concern over how funds of the society were being used seemingly for Brother XII’s benefit. They suggested that Brother XII be committed to an asylum. Lucas urged calm and suggested a meeting of the board was in order and this was arranged within three days on Valdes Island. The meeting deteriorated rapidly, with Brother XII declaring the governors traitors to the Work. He was less brutal towards Lucas, telling him that he had passed a test “from the nominal to the real”. However, Lucas told him that dissolving the Aquarian Foundation was now the only viable solution and seemed to persuade him of this reality.

A week later, Brother XII and his right-hand man, Robert England, the Aquarian Foundation’s secretary-treasurer, met with Lucas at the Hotel Georgia in Vancouver to discuss what dissolving the Aquarian Foundation entailed. Lucas explained that the assets of the society would be distributed equally among the seven governors, which greatly upset Brother XII. He argued that such a division would not be fair to people like Mr. England who was only being paid $50 a month but was entitled to at least $300 a month from the time he first arrived to work for the foundation. He also advised Lucas to keep his hands off the $25,000 donated by Mary Connally, claiming that the money was his and that the Hess Trust should be diverted to him also. Lucas advised that a properly constituted meeting of the governors needed to be held with a resolution made to dissolve the society before an application could be made to the Supreme Court of British Columbia for an order making it so.

Brother XII immediately wrote to Mary Connally and Oliver Hess telling them that the monies they had donated were about to fall into the wrong hands. Robert England, meanwhile, went to the Nanaimo branch of the Canadian Bank of Commerce and presented two cheques made out to him-

self for $2,000 and $800 respectively. England had calculated $2,800 as the amount the Aquarian Foundation owed him based on the $300 per month Brother XII had spoken of in their meeting with Lucas. Given the large dollar amount, England had to return three days later to collect the funds from the bank in the form of 140 $20 bills. He then made a hasty trip to Seattle where he deposited the money in a safety deposit box before returning to Nanaimo the same day where he promptly resigned. The next day, England caught the Princess Elaine bound from the CPR dock for Vancouver, from where he intended to travel to Seattle to pick up the $2,800 he had deposited there.

Unbeknownst to England, Brother XII had procured an affidavit from Mary Connally stating that her $25,000 donation had been to Brother XII personally. And, as the $2,800 came from the account the Connally funds had been deposited into, he used this document to support a charge of theft against Robert England, which he made at the police station in Nanaimo.5 In the criminal court next door, Magistrate C.H. Beevor-Potts issued a warrant for England’s arrest and when the Princess Elaine docked at the CPR wharf in Vancouver, England was met by two police officers, who promptly arrested him and took him back to Nanaimo where he was locked up until his preliminary hearing, which took place on October 19, 1928, eight days after his arrest.

England’s lawyer was Nanaimo’s Thomas P. Morton, who allegedly “spent nights on his office couch to escape a nagging wife; taking solace in the bottle”.6 Brother XII was represented by another Nanaimo lawyer, Frank S. Cunliffe, who had articled for Edward Lucas in Vancouver. The first witness called by Cunliffe was the teller at the Canadian Bank of Commerce, Albert Hazell, who confirmed that England had drawn $2,800 from the “Mandieh Settlement account”. The second witness was Edward Wilson (a.k.a. Brother XII), who testified that England was employed by him personally as a clerk and bookkeeper, that he received $50 per month plus room and board, and that the fund from which the $2,800 was drawn was “a sum of money donated to myself for the purpose of carrying out my work. There were no strings attached to it. I talked over the question of the settlement itself with the donor, but otherwise, there were no conditions attached to it.” He testified that England was not authorized to withdraw the money. Wilson was subjected to a less-than-adequate cross-examination by Morton, who failed to ask him about the meeting with Lucas at which Brother XII had said England was entitled to $300 per month. England himself offered no evidence. Beevor-Potts ordered England to stand trial at the next criminal assize court in Nanaimo to be held on November 20, 1928.

The general meeting of the Aquarian Foundation at which the resolution to dissolve the society was to be considered took place on Valdes Island on

October 24, 1928. Three governors were present with a power of attorney for a fourth. Three others (including Lucas and England) had resigned. However, those seeking dissolution were met with a surprise. At the meeting, Brother XII was flanked by two couples that he had newly appointed as governors, giving him a majority of one.

Brother XII had three conditions that had to be met before he would agree to dissolve the Aquarian Foundation: first, the $2,800 Robert England received should be returned; second, all attempts to depose Brother XII and interfere with the work should cease; and third, proper arrangements should be made to safeguard the monies donated or loaned to the foundation or otherwise returned to each donor or lender. The terms were not accepted and while the motion to dissolve was presented, it was defeated by a vote of five to four.

The defeated governors left the meeting and headed straight to the Nanaimo police station where they put into effect their contingency plan. First, they put up a bond for Robert England’s bail, then England laid a charge of theft against Brother XII, accusing him of stealing $13,000 from the Aquarian Foundation. He also swore an affidavit supporting the arrest of Brother XII. Once again, Magistrate Beevor-Potts issued an arrest warrant.

Brother XII, buoyed by his victory at the meeting, had left Valdes Island for Nanaimo and boarded the Princess Elaine at the CPR docks, bound for Vancouver. Upon his arrival in Vancouver three hours later, he was met by two policemen, and in a scenario identical to the one faced by Robert England less than two weeks earlier, Brother XII was arrested for theft and escorted back to Nanaimo. $10,000 from the Hess Trust and $20,000 in new donations from two of the new governors were put up as a bond. Brother XII avoided jail for the time being, but he was exhausted by his ordeal.

The next day, Edward Lucas, on behalf of the three governors who had sought Brother XII’s arrest, brought an emergency injunction application before Chief Justice F.B. Gregory in the courthouse on Georgia Street in Vancouver. Lucas advised that Edward Wilson (a.k.a. Brother XII) had been carrying on the affairs of the Aquarian Foundation against the wishes of the other governors and that he had refused to dissolve the society at a meeting called for that purpose, seizing the society’s funds and using them to build a separate settlement on Valdes Island. Chief Justice Gregory granted the injunction, which immediately froze the assets of the society as well as Brother XII’s personal account. He also prevented Brother XII from holding meetings or transacting business on behalf of the Aquarian Foundation.

Robert England, meanwhile, swore another affidavit alleging theft by Brother XII of a further $5,000 from the Aquarian Foundation. The charge

against him now totalled $18,000 in stolen funds. Brother XII, now in ill health, complained that those seeking dissolution of the Aquarian Foundation had no claim to anything of the Work which he alone had started: Any rights they may claim as nominal Governors of this Society, they derive from myself alone—I appointed them and made them such. In return, they are using the legal machinery of a British court of justice in an effort to persecute and hound to his death a British subject, a man whom they well know is innocent of the charges they have brought forward.7

Led by Edward Lucas, the governors seeking dissolution next petitioned the Lieutenant Governor of British Columbia to revoke the charter of the Aquarian Foundation. The petitioners summarized the claims against Brother XII and their petition culminated in the truly salacious:

The said Wilson left Cedar on a trip to the East in July, 1928 and returned to the Mandieh Settlement accompanied by a woman who is the wife of a professional man in the State of New York. The said Wilson established her at the said Mandieh Settlement as his mistress; and this notwithstanding the fact that in the house occupied by him on the property of the Aquarian Foundation was living at the same time a woman who had been introduced by Wilson to your petitioners as his wife.8

While Armageddon might not have occurred in 1928 as Brother XII predicted, it certainly appeared to be closing in for him personally.

ENDNOTES

1. D Michael Bain, “Legal Anecdotes and Miscellanea: Brother XII – Part I: The Dawning of the Age of the Aquarian Foundation” (2024) 82 Advocate 293.

2. John Oliphant, Brother XII: The Strange Odyssey of a 20th Century Prophet (Halifax: Twelfth House Press, 2006) at 134.

3. Ibid at 93.

4. England was a former secret service agent for the United States government from Oceano, California.

5. Brother XII had less success with George Hess, who considered the attempt to rewrite the terms of the George Hess Trust fraudulent and deceitful.

6. Oliphant, supra note 2 at 134.

7. Ibid at 143.

8. Ibid at 145.

FROM OUR BACK PAGES

By R.C. Tino Bel

This issue’s “Entre Nous” deals with the cutting edge (well, for lawyers) of technology. Here, we look back at some earlier technology-related advice and cautions for readers, as well as reminiscences of a more mechanical age.

ACCOUNTANT’S COMMENT MICROCOMPUTERS FOR LAWYERS*

By James Topham and Kevin Kortje

Can a microcomputer help my practice?” … is the question many lawyers are asking themselves. Microcomputers have been gaining a lot of attention recently and lawyers are among a growing number of people who are interested in finding out what a microcomputer can do for them.

Obtaining a definitive answer is complicated by the vast array of microcomputer hardware and software now available in the marketplace and the lack of vendors who understand the needs of the legal profession.

* Reprinted from (1984) 42 Advocate 535.

APPLICATIONS

Microcomputers can perform a variety of tasks that are relevant to a lawyer or a law firm. These tasks can be categorized into several areas of application:

•accounting including timekeeping, billing, trust accounting and general accounting

•information storage and retrieval including limitation or statutory filing dates and case reference material

•spreadsheet analysis

•word processing

•mailing lists

•communications

The size of the law firm affects which applications would be suitable for the firm. For example, a medium to large size law firm will usually already have computer equipment for their word processing and accounting needs. However, there are other microcomputer applications, such as information storage and retrieval, which could be used effectively. In contrast, small firms usually have a manual accounting system and may not have word processing facilities. As a result all applications mentioned above may be of interest to a small firm.

Although micros can be effectively used for word processing, there are practical limitations. If the micro is going to be used for other applications, an essential consideration is whether there will be enough time to accommodate the word processing function and the other applications on one machine.

TIMEKEEPING, BILLING AND ACCOUNTING

Timekeeping, billing, trust accounting and general accounting are essential to the adminstration of a law office. Unfortunately, lawyers do not make money directly by spending time administering their practice and so this function frequently gets little attention from partners. In larger firms, an administrator is usually on staff to coordinate these accounting functions. However, a small legal practice may not even have a formal timekeeping system. While this may alleviate the drudgery of completing a daily diary, it does have its drawbacks.

A microcomputer timekeeping system, which requires that time spent on clients’ affairs must be captured each day, can keep work-in-process records current and accurate, facilitate prompt billing, provide detailed accounting for trust funds and general accounts and provide valuable information to the lawyer about the profitability of the practice. The benefits are:

1.Improved cash flow

Accurate and current work-in-process records allow the lawyer to bill clients promptly. Reports summarizing unbilled time and outstanding accounts receivable by aging category and by client ensure that the billing and collection are current. Prompt billing and collection reduce the investment in unbilled time and disbursements and speed up the process of converting work done into cash.

2.Reduced administrative time

Performing the accounting related functions on a computer is more efficient than doing the accounting manually. Timekeeping and accounting entries are entered once on a computer which then performs the clerical tasks of addition, multiplication, and summarizing the information in many different reports which are available on demand. These tasks when performed manually can be very time consuming.

3.Better management information

The reality is that since manual systems are very time consuming, few reports are generated. As a result, there is limited management information available. Accounting software packages can generate many reports which are valuable in managing the practice. For example, summaries by lawyer of time spent, billed and collected provide information to monitor performance.

4.Improved control of overhead costs

Timely and accurate financial information is essential to the profitable operation of any business. Often, lawyers overlook the fact that they are running a business as well as a law practice. Microcomputer accounting packages provide monthly financial statements with appropriate detailed listings in order to monitor and control expenses. The financial statements indicate current month, year-to-date and budgeted revenue and expenses with comparisons to the prior year.

INFORMATION STORAGE AND RETRIEVAL SYSTEMS

Information storage and retrieval systems, more commonly referred to as database management systems, can be a valuable tool for lawyers. There are two categories of database systems: those which are developed and maintained by the law firm itself, and those which are maintained by serv-

ice companies and are accessed by telephone lines. The former category has been receiving increasing attention with the advent of microcomputers.

The first category of database can be used by litigators to find cases previously researched by the firm that are relevant to the case at hand. The objective is to avoid duplication of research. As each case is completed by the law firm, the essential information such as the lawyer’s name and the type of case is coded and inputted to the database. As a result, a lawyer can search the database to find all cases related to a given subject area.

Another example of this type of database is called statutory filing dates or limitation dates. In essence it is an electronic “bring forward” file from which each lawyer will obtain, on a regular basis, a list of matters which are currently due.

The second category of database can aid both legal and non-legal research. Legal information databases such as Quick-Law (Canada) and West Law (U.S.) can be accessed over telephone lines by a microcomputer equipped with a device called a modem. These databases contain a variety of legal information on statutory law and case law, including headnotes of court decisions, judgment summaries, legal opinions, editorials, commentaries, law texts, magazines, journals, and digests. Other non-legal information databases can provide information on a wide variety of subjects. For example, searches can be made of the Globe and Mail and Wall Street Journal to extract headings and first paragraphs or entire articles related to a specific topic for a specified time period. Searches can also be made of financial information for reporting companies. There are currently over 1,5001 databases which can be accessed by anyone with a microcomputer and a modem.

WORD PROCESSING

Word processing is the most widely used computer application in law offices today. The ability to create and easily modify lengthy documents and text is essential to the efficient operation of a law practice. Since lawyers often use standard documents and contracts, keying in the standard once and modifying it on a word processor for each situation avoids retyping the entire document. Word processing software on microcomputers now rivals the quality of that on equipment designed specifically for word processing.

SPREADSHEET

Spreadsheet analysis software such as Lotus 1-2-3 is the largest selling application on microcomputers for business purposes. Businessmen use it for

budgeting and cash flow projections. Lawyers can use its capabilities to project financial outcomes in cases such as civil litigation and family breakup. Once the model is constructed, different assumptions can be input providing instant results.

MAILING LIST

Mailing list software effectively combines the functions of word processing and database management by enabling the lawyer to select certain addresses or the entire mailing list. The addresses print out automatically on labels or on letter head in contrast to typing each address from a card index file for each mailing.

COMMUNICATIONS

Communications software enables the lawyer to communicate with other users of a communications network through the microcomputer, again with the assistance of a modem connection to telephone lines. These electronic mail systems are similar to Telex. They enable the user to create and send a message to another user immediately. The lawyer can check his electronic “mailbox” for messages sent to him at any time using the microcomputer.

The main advantage of this type of communication over other types, such as Telex, is the flexibility. A small lap computer can be used at home to connect to the phone to send messages or to check the “mailbox”. Although this may sound futuristic, there are many companies in British Columbia currently using this service.

SELECTION IMPLEMENTATION AND TRAINING

There are two options in selecting a microcomputer, doing it yourself or obtaining help. The former is risky and time consuming, the latter costs money. Unless you are prepared to spend substantial personal effort, you should seek help from someone who is knowledgeable in the legal microcomputer market. However, you should be prepared to be involved in the selection, implementation and training process if the system is to be successful. Selecting a microcomputer system should be done in two steps to ensure that the system meets the needs of the lawyer. The first step is to select the software that will perform the desired functions. The second is to select the hardware that will run the chosen software. The software is selected first because it is the most critical part of the system in satisfying your needs. In addition, not all hardware and software are compatible. Selecting the computer first may limit the range of software that could be used.

Once a system has been selected, the real work begins. Implementation involves a number of activities which require careful planning and organization. This is particularly true for timekeeping, billing and accounting systems for which the activities include obtaining forms, organization and input of client information and establishing client and time codes.

Training is crucial for an efficient and effective implementation. Although software is designed to be “user friendly”, there is a lot to learn to effectively use a microcomputer system. It can save considerable time and prevent serious problems by having people who are experienced with the software selected train your staff.

COST

The cost of a microcomputer system is like the cost of a car. It depends on which model you buy and what options you select. The most significant variables in the cost of the hardware are the type of printer selected and the file storage requirements. The printer considerations include the quality of the print and the speed of the printer. Hard disk storage may be required for the operation of some software particularly for legal accounting applications. In order to provide an estimated cost we have assumed a system which includes hard disk storage and an average quality and speed of printer. With these assumptions, the cost of the hardware would be about $10,000 to $13,000.

Prices for soft packages can range from as little as $200 for a simple mailing list program to over $3,000 for an integrated timekeeping, billing, trust accounting and general accounting program. Most software packages such as word processing and spreadsheet packages cost from $400 to $700.

The total cost of a microcomputer system, including hardware and software for accounting needs, would cost approximately $15,000 to $20,000.

CONCLUSION

A prediction has been made that in five years lawyers will not be able to do business without computers.2 For lawyers seriously considering a microcomputer, the opportunity is available now. For lawyers who have not yet considered a microcomputer, the prediction should be food for thought.

ENDNOTES

1. Omni Online Database Directory, Edelhart, Mike and Davies, Owen, Collier MacMillan Publishers. London, 1983.

2. Milton Zwicker, an Orillia, Ont. lawyer specializing in business consulting for lawyers, in an article pub-

lished in the Globe and Mail Report On Business section, June 25, 1984 issue.

ENTRE NOUS*

Modern nations are becoming increasingly more difficult to govern. And this appears to be the case whether they are liberal or authoritarian. It is said that one of the reasons for this is the growing difficulty for key groups in the administration, industry, the arts and sciences, and the universities to understand each other’s business, not to say each other’s language.

Technology has created the global village and increased the interdependence of its parts at the cost of separating individuals and breaking up communities. Men of genius now find themselves confined and staked out in a field; of specialization to such an extent that there is now little scope for the endeavours of the catholic genius of earlier centuries. Leonardo da Vinci would probably now be doing nothing more than directing movies. He could not, in the 20th century, invent siege guns, paint exquisitely in oils, create beautiful sculpture, design churches and dabble in town planning, mathematics and medicine, as well as design flying machines and canals.

The professions should beware that they are becoming unable to talk to each other, and that within each profession groups develop whose members do not understand the functions, ideologies and problems of other groups.

This is one of the dangers of specialization, although it is not a reason for scrapping the idea in the legal profession. Failure to understand what your neighbour, your fellow employee, or your employer is talking about should now be a priority for reform in the country at large. It is a priority also among and within the professions. The critical area of deprivation now lies in the relations between people and between the groups into which they are divided. The differential in knowledge and culture which has perhaps replaced differentials in income and possessions in importance, tends to keep people apart and make them indifferent, if not hostile, to each other. Doctors, for instance, resent lawyers who will cross-examine them seemingly to try to cloud the truth, whereas the doctor’s endeavours are bent in a constant search after the truth. Lawyers, in turn, treat doctors as narrowminded and stubborn.

This inability to appreciate each other’s function and jargon drives the professions and their members apart, and on a national level, technology will eventually make any free society ungovernable.

* Reprinted from (1974) 32 Advocate 76.

Dr. Samuel Johnson, in his essay on peevishness, said, “Long confinement to the same company which perhaps similitude of taste brought first together quickly contracts the faculties and makes a thousand things offensive that are in themselves indifferent: A man accustomed to hear only the echo of his own sentiments soon bars all the common avenues of delight and has no part in the general gratifications of mankind.”

It is a wise lawyer who seeks not to confine his circle of acquaintances to those of his own profession. In smaller communities the danger is less severe because there are necessarily fewer members of his own profession with whom to rub shoulders quite so constantly. Oddly, the Lawyers Inn in Vancouver may well, at the same time, help both to cure and to create the problem. It cures in the sense that members who would never ordinarily speak to each other are given the chance to do so, but then you only meet other lawyers at the Inn.

Those awesome superhumans, the members of the bench, frequent the Inn and the profession and the judges have the opportunity of talking to each other, although one observes that members of the same bench tend to keep together, a little like a herd of musk-oxen slightly threatened by the besetting presence of the members of that profession from which they were once drawn.

There is some discussion of the possibility of such groups as the Law Society and the Chartered Accountants jointly purchasing or constructing a building wherein the various official and semi-official bodies could maintain their offices and in which private firms could rent space. Facilities such as boardrooms, libraries, luncheon facilities and so on could be shared. This good idea becomes a brilliant conception if doctors, dentists, landscape architects and such like disparate groups, who at first blush would seem illassorted and to live in only uneasy comfort in the confinement of the same building, could be included.

Let the edifice be built.

THOSE WERE THE DAZE*

By M.K.

My only previous connections with the Advocate were, as the Law Society’s law librarian, to submit the lists of missing books and new acquisitions and to suggest to the then (very young) editor David Roberts that he include a grumble section (which is still running).

I continue to see issues of the Advocate, and that journal brings me much confusing information concerning the electronic storage and retrieval of legal information. I cannot help but contrast this with the period 1954 to 1973 when, as Vancouver librarian, I also had duties to serve those termed the “up country” bar by mailing out texts and reports not found in the small group of 14 unstaffed local courthouse libraries. Perhaps some of those members of the bar still practising will recall a few of the travails we all suffered. I should mention that the total number of practising lawyers around 1954-56 was fewer than 1,400. Vancouver library staff? Two or three.

A recent Advocate article mentioned in passing the early inauguration of a photocopy service from Vancouver to wherever. Well, let me tell you! Before photocopying, we were often alarmed by the loss of use of core Vancouver materials by loans to smaller centres. We were also tied up and into a system in Vancouver where lawyers preparing for court loaded up book buggies (originally built by inmates at the penitentiary at New Westminster) with dozens of volumes of statutes, reports and texts—again, materials lost for days to others wishing to use the library’s resources.

And so began our sedulous search for a suitable copier. Our first unit spewed out negative copies. This “negativity” was used as a selling point by the pusher who, like the rest of us, had heard that certain members of the bench were loath to admit photocopies as “true”. The feeling was that a negative copy could not be doctored to suit the suit. However, the coin mechanism failed so often and complaints of illegibility were so frequent that we returned the machine to the dealer.

Our next experiment involved a flatbed “positive” copier. Unfortunately, the glass bed did not extend to the edge of the machine and we spent many hours filling in the words of the inner margins. Back to dealer.

* Reprinted from (2002) 60 Advocate 89.

The next machine copied to the edge if one clamped down the lid so tightly one broke the spine of the book. As many older volumes of reports were bound in half-calf this was costly damage. Back to dealer.

Our most outrageous investigation was with a bed plus a plump pillow, somehow so electronically possessed it copied when one smothered an open book. One had to be careful to press the pillow into the inner margin. The theory was it copied everything the pillow touched. It didn’t. With wincing despair: back to dealer.

Our next near-success was with a “wet” copier. It damaged no books but presented a problem to the then secretary of the Law Society, Alfie Watts. We had to string yards of wire in the tiny corridor outside his inner office. One page took from 30 minutes to an hour to dry, and a request from, say, Fort St. John meant dozens of wet sheets flapping at passersby. After a couple of years of use: back to dealer.

Our last adventure was with a real copier that presented us with delightful copies. However, as it later turned out, the supplier did not set the toner apparatus properly and we began to receive complaints that users, months later, on opening files of copies found perfectly clean paper—and a little black dust in the file crease, the residue of little black letters fallen away from home base. At this point, dazed and somewhat deranged, I resigned from the Law Society and joined the local chapter of the Luddites.

At some point, photocopying helped solve the problem of the transfer of books to courtrooms. If my recall is correct, it was Farris and Co. that first started supplementing briefs (especially to the Court of Appeal) with photocopies of relevant material. This communication advance soon persuaded other firms to follow suit. (My recall is correct and my memory is confirmed by John McAlpine—then a law student at Farris & Co. and now a Q.C.)

I hope this reminiscence brings some laughter—or sobs—to the few remaining members of the bar who suffered through all of the above along with their library staff.

• COQUITLAM B.C. – SOLICITOR’S PRACTICE – New on market

This long-established solicitor’s practice has a fairly even split between Real Property (Residential, Commercial and Development Law), Corporate/Commercial and Wills/Estates.

Wills and Estates is presently in growth mode and there is great potential for expansion in all other areas of practice as the seller is turning away work.

The office is centrally located in the Tri-City area. The seller owns the premises and is prepared to lease back to the purchaser, as well as to provide assistance through a transition period.

• DOWNTOWN VANCOUVER FAMILY LAW AND SOLICITOR’S PRACTICE

• WEST KOOTENAY SOLICITOR’S PRACTICE

• CENTRAL ALBERTA – 2 SOLICITOR’S PRACTICES

BENCH AND BAR

Tea drinkers may be pleased to learn that the United Nations General Assembly has designated May 21 as International Tea Day, in an effort to foster the sustainable production and consumption of the beverage. Coffee-drinking colleagues may approve of the fact May 24 is National Coffee Day in Brazil. Whichever beverage you prefer, we invite you to settle down with a cup to read through the news—as stimulating as caffeine itself—below.

Norman D. Streu joins Harper Grey, having previously been the president of Con-Force Structures Ltd. Georgia Barnard joins Legacy Tax + Trust Lawyers from Owen Bird. Katherine J. Zhou leaves Lawson Lundell to join Terra Law. Ritu N. Mahil moves from Lawson Lundell to Southern Butler Price. Also coming on board at Southern Butler Price are Debra Rusnak and Amy Durand Louisa (Lou) L. Poskitt has joined Cooperwilliams, Truman & Ito from Miller Titerle. Veronica L. Medved is now with Collins Peterson, having come from Murphy Battista. Rachel Wood joins Harper Grey from Peck & Company. Rabjeet S. Wallia moves from Meridian Law Group to North Shore Law. Caitlin Ohama-Darcus jumps from Murphy Battista to Lawson Lundell. Mark K. Leung leaves his post as general counsel at GSL Group to start up his own firm under the moniker Interhouse.

Rachel Schechter jumps from Faskens to join Harris & Company. Erin O’Callaghan is now corporate counsel at Methanex Corporation following a career break and her post at McCarthy Tétrault. Virginia K. Richards returns to Henderson Heinrichs after a couple of years at Clark Wilson.

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.

Holiday D. Powell moves from associate counsel at Miller Thomson to counsel at Koffman Kalef. Heather C. Wojcik takes on the post of associate executive director at Access Pro Bono Society of BC. Polina H. Furtula returns to West Point Law Group, leaving Citadel Law Corporation to do so. Just in time for the playoffs, Catherine Chow became the chief legal officer for the Canucks after 17 years with Keg Restaurants Ltd. Rupam Rishi recently moved to Mogan Daniels Slager from McQuarrie.

Sandra Sukstorf, Christopher Greenwood, Karrie Anne Wolfe, K.C., Maegen Giltrow, K.C., and Y. Liliane Bantourakis were all recently appointed to the B.C. Supreme Court. Justice Sukstorf fills one of the three newly created positions authorized by the Budget Implementation Act, 2022, No. 1. Justice Greenwood replaces Justice G.S. Funt (Vancouver), who elected to become a supernumerary judge on November 26, 2022. Justice Giltrow replaces Justice G. Macintosh (Vancouver), who retired effective April 30, 2023. Justice Wolfe replaces Justice R.D. Punnett (Prince Rupert), who elected to become a supernumerary judge on July 23, 2022. Justice Bantourakis replaces Justice P.W. Walker (Vancouver), who elected to become a supernumerary judge on June 18, 2023.

Are the trials over which these jurists preside a tea party? Evidently not: “[a]s I believe the Chief Justice of this Court has said on more than one occasion, a trial is not a tea party”: Middelkamp v. Fraser Valley Real Estate Board, 1993 CanLII 2884 (B.C.C.A.), per Southin J.A. This view is shared in Ontario, including with respect to jury trials (“a jury trial is a fight and not an afternoon tea”: Dale v. Toronto R. Co., 1915 CanLII 535) and civil litigation (“[j]ust as it has been observed in the past that a serious criminal trial is not a tea party, the same could be said for commercial litigation, with big money at stake, involving professional parties, and with excellent counsel on both sides, for whom such a dispute is not his/her first rodeo”: Shen Feng Investment v. JBN Medical Diagnostic Services, 2021 ONSC 5501). The Court of Special Appeals of Maryland has also chimed in on this point, in Tibbs v. State of Maryland, 72 Md. App. 239 (1987):

We recognize that a trial is not an afternoon tea or other polite social event. On the other hand, it is not trial by combat. The courts, over the years, have laid out carefully delineated boundaries in which the adversaries are free to fight. Contests are, however, confined to the area within the boundaries and governed by specific rules. It is counsel’s duty to abide by the rules and remain within the boundaries.

Among those making sure the boundaries are respected is Lawrence Robinson, formerly with Alexander Holburn Beaudin + Lang, who was

appointed as an associate judge of the B.C. Supreme Court and will sit in Vancouver.

The Provincial Court of British Columbia recently welcomed the appointment of six new judges: Christopher Churchill, Karen Leung, Colleen Elden, Sheryl L. Wagner, Mandy Klein and Sabena Thompson.

We are sure all these new judges will be kinder than the Quebec colleague whose conduct came before a somewhat bemused Quebec Court of Appeal in Regina v. Cote, 1973 CanLII 1351. In a “matter [that] may well be described as a veritable tempest in a tea pot”, a judge of the Quebec Provincial Court convicted a 62-year-old father of 14 children of contempt of court, as the result of the unfortunate man, “in his capacity as operator of the public address system in the Montreal court-house”, making “an announcement which could be heard inside a court-room in which the [Provincial Court judge] was presiding, thereby disturbing the peace and tranquility of the proceedings.” The operator, who apologized, explained that he had made the announcement (for a lawyer who was wanted in another courtroom) “in good faith after being told by a police sergeant that the matter was urgent. He was aware, he said, that by pushing the particular button all the speakers on the 13th floor were activated, whereas the pushing of another button would have restricted the announcement to the corridors and waiting rooms. It is relevant to add that [the operator] had been in this particular job for only 10 days and that, when assuming these functions, his superiors had failed to give him any specific instructions.” The Court of Appeal did “not doubt that the announcement did, in fact, disturb the proceedings” or that the operator “committed an error of judgment in pushing a button which was essentially designed to be used in cases of emergency, which this was not.” However, the court was “not prepared to say that, by so doing, he brought himself within the four corners of the law dealing with contempt”. The conviction was quashed.

“Lawyers and Lattes” describes itself as “Canada’s first legal café”. Its website notes that the service is “[d]esigned to make legal services accessible, affordable and unintimidating” and is “conveniently located in a comfortable cafe environment rather than a stuffy office building. Our lawyers wear jeans and speak in plain English, and everything about us is designed to put our clients at ease. We are a new take on the concept of the main street law firm.” The firm’s website notes its founder, Dale Barrett, “drinks about 5-10 black coffees per day which explains how he works 20 hours a day and never sleeps!”

Joven Narwal, K.C. , was named chair of the Judicial Council of the Tsawwassen First Nation.

Concerned that claims of attorney-client privilege are overused, the U.S. District Court for the Northern District of Illinois, Eastern Division, noted, “of course, every email an attorney sends comes with a warning that it could very well be confidential and privileged, even if it is merely confirming a coffee date. There is, unfortunately, a tendency toward secrecy even when not warranted”: United States of America v. CVS Health Corp., No. 18 C 6494 (2024). The court added that it had “[t]oo often” dealt “with privilege claims that, essentially, seem to be based on attorneys being magic, with even the hint of their involvement drawing a conjurer’s circle around even the most innocuous of communications.”

Kristin B. W. Gardner was appointed as a vice chair of the Civil Resolution Tribunal for a term ending March 15, 2027.

In O’Rourke v American Kennels, 2005 NY Slip Op 50656(U), Judge Matthew Cooper considered a case where the claimant sought to recover the purchase price of her dog, Little Miss Muffet, which was heavier than the “toy” breed (of Maltese) that the claimant had understood she was purchasing: The issue presented, in large part, concerns the dog’s weight. Claimant contends that Muffet was supposed to be a “teacup dog.” And whereas we know from the nursery rhyme that it’s quite all right for a little teapot to be “short and stout,” it’s apparently a different story for a teacup or at least for a teacup dog. The short is fine, but the stout is most definitely out.

….The sales agreement offered into evidence by claimant refers to the dog simply as a Maltese, but claimant’s credible testimony establishes that defendant specifically represented that the dog would be small enough to bear the teacup designation. The testimony further demonstrates that Little Miss Muffet’s size is attributable not to an excessive consumption of curds ’n whey (or more likely, Kibbles ’n Bits), but instead to her general genetic makeup. In short, Muffet was bred to be a plain old tiny standard Maltese and not a teeny tiny teacup Maltese. It must be said that there are those who have trouble understanding why anyone would want a dog weighing only eight pounds (the size of a small cat), let alone one weighing five pounds (the size of a well-fed New York rat). A dog like that might be considered too small to do real dog-like things, such as racing through the woods in hot pursuit of a squirrel, snatching a frisbee out of the air in a single bound, or chewing the leg off a dining room table. On the other hand, it seems that small breed dogs have the advantage over their more sizeable canine counterparts when it comes to fitting comfortably within the confines of a Manhattan studio

apartment, unashamedly sporting a little Burberry doggie coat with fauxfur-lined collar and matching booties, or being smuggled onto public transportation cleverly concealed in a tote bag.

Whatever the reason may be, the fact remains that toy breeds such as the Maltese are like cell phones or Japanese bonsai trees: the smaller they are, the more they cost. As the evidence presented at trial made clear, claimant could have readily purchased a standard Maltese from defendant for $1,500. Instead, she opted to purchase Little Miss Muffet for $2,500. The price differential was based on the representation that Muffet was indeed a five pound teacup dog. Muffet turned out to be an eight pound dog. The end result is that claimant paid a $1,000 premium for Muffet and received three pounds more dog than she bargained for.

The court finds that because Muffet is too big to be a teacup dog, she is not the type of Maltese that claimant was led to believe she was purchasing. As such, Little Miss Muffet, as cute as she appears from the photographs in evidence and as harsh as it may sound, constitutes nonconforming commercial goods under Article 2 of the Uniform Commercial Code….

….Claimant is not entitled to [the full purchase price of the dog]…because claimant, who had bonded with her pet over time, did not seek to revoke her acceptance and return the “goods” once she discovered that Muffet was not destined to be a teacup dog….Recognizing, however, that it is no small matter for an owner to give up a household pet, and guided by the principles of substantial justice, the court will not deprive claimant of a remedy where she was misled as to the dog’s teacup status….The appropriate resolution is to allow claimant to retain Muffet and to recover the $1,000, plus applicable sales tax, that she overpaid as a result of defendant’s misrepresentation.

Coffee is the official state beverage of the State of Washington.

The origins of coffee are the stuff of legend. As recounted on the website of the National Coffee Association of the United States, “[c]offee grown worldwide can trace its heritage back centuries to the ancient coffee forests on the Ethiopian plateau. There, legend says the goat herder Kaldi first discovered the potential of these beloved beans.” The National Coffee Association explains, “The story goes that Kaldi discovered coffee after he noticed that after eating the berries from a certain tree, his goats became so energetic that they did not want to sleep at night. Kaldi reported his findings to the abbot of the local monastery, who made a drink with the berries and found that it kept him alert through the long hours of evening prayer….As word moved east and coffee reached the Arabian peninsula, it began a journey which would bring these beans across the globe.”

Legend also surrounds the origins of tea as a beverage, although likely to have been in China. The UK Tea & Infusions Association notes that

“[a]ccording to legend, in 2737 BC, the Chinese emperor Shen Nung was sitting beneath a tree while his servant boiled drinking water, when some leaves from the tree blew into the water. Shen Nung, a renowned herbalist, decided to try the infusion that his servant had accidentally created. The tree was a Camellia sinensis, and the resulting drink was what we now call tea.” The association’s website (which has a running total of cups of tea it claims to have been consumed in the United Kingdom each day) attributes the popularity of tea in the United Kingdom to Charles II’s marriage to Catherine of Braganza: “She was a Portuguese princess, and a tea addict, and it was her love of the drink that established tea as a fashionable beverage first at court, and then among the wealthy classes as a whole. Capitalising on this, the East India Company began to import tea into Britain, its first order being placed in 1664—for 100lbs of China tea to be shipped from Java.”

John McNamee was recently appointed as Acting Chief Coroner of British Columbia.

In Miles v. Konvalenka, 791 F. Supp. 212 (N.D. Ill. 1992), a correctional centre inmate alleged that failure to serve coffee to members of his unit (despite the fact it was served to inmates in the rest of the prison) violated the Equal Protection Clause of the U.S. Fourteenth Amendment and constituted cruel and unusual punishment. The court seemed somewhat taken aback, noting that “although many people need their morning coffee, not even the most earnest java junkies could support a claim that they have a fundamental right to consume their morning brew.” The court also noted that withholding coffee “could be rationally related to the legitimate penalogical goals of maintaining discipline and prison safety. Hot coffee could conceivably serve as a weapon to inflict pain on fellow inmates, prison guards, or even on the segregated inmate himself”. Further, “millions of persons in our society, in and out of jails, freely prefer not to drink coffee for a variety of reasons. Plaintiff’s argument would fare no better discussing the absence of tea or whiskey. A complaint asserting a deprivation of water, on the other hand, would easily pass muster.”

Ronald J. MacDonald, K.C., was appointed as the chief civilian director of the Independent Investigations Office for a term ending on October 24, 2025.

“Music is used on network television in three principal ways: as theme, background or feature music….Occasionally, … well-known compositions suitable for feature use may be used as background music, for example, ‘Tea

for Two’ as background to a tea party scene”: Columbia Broad. Sys., Inc. v. American Soc. of Comp., 400 F. Supp. 737 (S.D.N.Y. 1975).

Alison Jane Carstairs was appointed as a public member to the board of the College of Pharmacists of British Columbia for a term ending February 28, 2025.

In United States of America v. Aquino, No. 14-10360 D.C. No. 1:10-cr-00023SOM-5 (2015), the U.S. Court of Appeals for the Ninth Circuit addressed a condition (“imposed because the district court wanted to prohibit Aquino from using any substances that could lead to another dangerous accident or incident”) that she “may not knowingly use or possess any substance, controlled or not controlled, that [she] believe[s] is intended to mimic the effect[s] of any controlled substance”. However, the Ninth Circuit found the condition to be impermissibly vague: “Aquino should not be forced to guess whether an overzealous probation officer will attempt to revoke her supervised release for drinking a grande iced nonfat chai with a shot of espresso.”

Adam Picotte was reappointed to the Social Security Tribunal as a part-time member for a period of two years.

Noting that “[i]n a bold challenge to judicial authority, the United States Railroad Retirement Board argues that it is free, when it chooses, to ignore the decisions of United States courts of appeals”, the court in Johnson v. United States Railroad Retirement Board, 969 F.2d 1082 (D.C. Cir. 1992) gave a stern warning to that tribunal: “now that three circuits have rejected the Board’s position, and not one has accepted it, further resistance would show contempt for the rule of law. After ten years of percolation, it is time for the Board to smell the coffee.”

The 2024 Allard Law Alumni Achievement Awards were held on May 1, 2024 at the VIFF Centre. The assembled crowd was present to see The Hon. Chief Justice Christopher Hinkson (LL.B. ’75) be given the Lifetime Achievement Award. Other worthy award recipients were:

• Alumni Award of Distinction: Mary T. Ainslie, K.C. (LL.B. ’91);

• Outstanding Young Alum Award: Caitlin Ohama-Darcus (J.D. ’15) and Randy Robinson (J.D. ’16);

• Alumni Award for Research: Professor Isabel Grant; and

• Special Tribute: The Hon. Selwyn Romilly (LL.B. ’66). Read about this late judge in “Nos Disparus” (2024) 82 Advocate 269 at 271.

Courts seem to frown on “reading the tea leaves”, including as a basis for discerning what the U.S. Supreme Court may do. As one circuit said, “[r]eading the tea leaves from dicta in three separate opinions is no substitute for faithful application of a majority opinion that commanded six votes”: United States v. Edell Jackson, No. 22-2870 (8th Cir. 2023). Another circuit observed: “While we understand that changes in Court personnel may alter the outcome of Supreme Court cases, we do not sit as fortune tellers, attempting to discern the future by reading the tea leaves of Supreme Court alignments. Each case must be reviewed on its merits in light of precedent, not on speculation about what the Supreme Court might or might not do in the future, as a result of personnel shifts”: Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1107 n. 3 (6th Cir. 1995).

The U.S. Supreme Court in turn frowns on “reading the tea leaves of congressional inaction”: Rapanos v. United States, 547 U.S. 715 (2006).

Elena Kagan, now a justice of the U.S. Supreme Court, was formerly dean of Harvard Law School. There, Dean Kagan was known for, among other things, having the school provide “free” (tuition aside, presumably) coffee to students.

Jonathan H. Chaplan and Benedict S. Parkin were appointed as members of the Health Professions Review Board for terms ending February 26, 2027. Douglas S. Cochran was also appointed for a term of two years.

The Associated Press reported in July 2003 on the case of a Florida man (a software designer and engineer) whose defence lawyer claimed that drinking jasmine tea made his client temporarily insane, including at the time he smashed his way into a neighbour’s house (using “a brass duck” to break through a glass door) and chased the neighbour with a dagger. The judge dismissed aggravated assault and burglary charges after receiving reports from three court-appointed psychologists who agreed the man suffered from psychosis. The defence lawyer explained that jasmine “is an herb commonly taken to calm the stomach but is also used as a love potion in satanic and cult rituals”.

David Martin was appointed as vice-chair of the Safety Standards Appeal Board for a term of three years. The board hears appeals under the Safety Standards Act, the Homeowner Protection Act and the Building Act.

In nautical news, Phil Dwyer C.M. was recently appointed as a director of the Nanaimo Port Authority for a two-year term.

Lyall Knott, K.C., was recently appointed to the board of the Canada West Foundation.

The CBABC announced new Provincial Council representatives in Vancouver County and Westminster County. In Vancouver County, Connor Bildfell, Joseph Cuenca, Jennifer Khor, Leena Yousefi and Erica Chow join current representatives Nicole Garton, Dianne Gradley, Rupinder Gosal and Bruce McIvor. In Westminster County, Rebecca Darnell and Natasha Nair join Matt Somers and Manpreet Mand along with a soon-to-be-determined representative from Surrey. The new representatives will begin their three-year terms on September 1, 2024.

Protesting the Tea Act 1773 , some colonists in Boston boarded ships anchored in the harbour and dumped their cargo of tea overboard (the Boston Tea Party). The National Coffee Association claims this revolt “would forever change the American drinking preference to coffee”.

British Columbia has two Coffee Creeks, one Coffee Lake, one Coffee Pass, a Coffee Pot and a Coffee Crater. Coffee Crater is just south of Edziza Peak in Mount Edziza Provincial Park (southeast of Telegraph Creek). The Coffee Pot is a mass of rock jutting above the Peace River near Hudson’s Hope. Coffee Pass is at the head of Coffee Creek in Kokanee Glacier National Park, not far from Nelson. Coffee Lake is a small lake in the Caribou with lots of mosquitos. Our second Coffee Creek feeds into Charlie Lake northwest of Fort St. John.

“[T]he pot can scarcely call the kettle black”: Montplaisir v. Leighton, 875 F.2d 1 (1st Cir. 1989). Or as another court put it, “[i]t is not persuasive for the pot to call the kettle black”: Sunnyslope Housing Limited Partnership v. First Southern National Bank, No. 12-17241 D.C. No. 2:11-cv-02579- HRH (9th Cir. 2016). In United States of America v. Rodriguez-estrada, 877 F.2d 153 (1989), the U.S. Court of Appeals for the First Circuit did not find prosecutorial misconduct to have occurred during closing argument though “the government’s summation, read in its entirety, was not a model of either statesmanship or craftsmanship. But, churlish though the prosecutor’s argument was, the defense’s summation was cut from much the same coarse cloth. We hasten to affirm that two wrongs do not make a right. Nevertheless, it strikes a jarring note when the pot proposes to call the kettle black.”

As explained in Boyle v. Christensen, 2011 UT 20, “[f]ew cases have ever achieved as much notoriety among the general public of [the United States] as the McDonald’s coffee case” (Liebeck v. McDonald’s Rests., P.T.S., Inc., No.

CV-93-02419, 1995 WL 360309 (N.M. Dist. Ct. Aug. 18, 1994)). That notoriety was “fueled by [the case’s] wide-ranging and repeated publicity in national and local news media. It has been mocked in extremely popular entertainment television,…debated on talk shows, parodied in television commercials, mentioned in congressional debates, and is firmly lodged in the public consciousness”, making headlines for the fact $2.9 million was awarded supposedly “for spilled coffee”. “In U.S. popular culture, the case has come to symbolize greedy plaintiffs and lawyers who file frivolous lawsuits and win hugely excessive sums in a broken legal system.” However, although the public view of this “uniquely iconic” case is “understandable when limited to a superficial view of its facts, a deeper look at the details and issues in the case may dramatically alter one’s perspective”, including that “[t]he temperature of the spilled coffee was so hot—180 to 190 degrees—that within seconds it caused third-degree burns”; McDonald’s had “received approximately 700 other complaints about coffee-burn injuries in the previous decade (some of which were settled for a total outlay of over $500,000), but considered the number of injuries statistically insignificant and therefore did not lower the temperature of its coffee”; and the jury awarded $2.7 million in punitive damages “because it believed the extreme temperature of the coffee was unreasonably dangerous and that McDonald’s had callously disregarded the danger even after hundreds of injuries. The $2.7 million figure was based on the approximate revenues from just two days of McDonald’s coffee sales.”

Just before going to press for the March issue of Advocate we received a press release detailing the latest King’s Counsel appointees. Unfortunately, in our haste to list those appointed, while we did confirm the post nominals on our masthead, in our summary in Bench & Bar, we inadvertently left off Cheryl D’Sa, K.C., the former president of the Vancouver Bar Association and current bencher. We regret this error and extend to her our sincere apologies. We are secretly pleased, however, that the person appointed immediately after her will forever be listed in seniority as “next after Cheryl D’Sa” especially since he is also her husband.

Joven Narwal, K.C., was a recent recipient of a Hands Against Racism Award in recognition of his work to promote multiculturalism and fight racism. These awards are bestowed by the Multicultural Advisory Council, a legislated body created to provide advice to the Minister for Multiculturalism on issues related to multiculturalism and anti-racism.

Geographically, tea fares much worse than coffee in British Columbia. We have only two Tea Creeks, the first feeding into the Peace River not far from

Charlie Lake and its Coffee Creek. The second Tea Creek is a tributary to Howser Creek which flows westward into Duncan Lake in the Kootenays.

Wikipedia explains that “[t]he traditional cucumber sandwich is a crustless tea sandwich (or finger sandwich) composed of thin slices of cucumber situated between two thin slices of lightly buttered white bread….Cucumber sandwiches are most often served for a light snack or for afternoon tea, a formal light meal served in the late afternoon, or in the early evening before the main supper. Cucumber sandwiches are also traditionally served in the tea break at club cricket matches in England.”

In Sevenex Pty Limited v Blue Mountains City Council, [2011] NSWCA 223, the New South Wales Court of Appeal considered whether an existing development consent could assist an applicant who “operates a tourist caf at Echo Point near Katoomba in the Blue Mountains” and “wishes to expand its activities by reorganising the lower ground floor of its premises to incorporate a large room which will contain what has been described as a mixed media exhibition which will include: (1) an aboriginal cultural exhibit; (2) a live koala exhibit; and (3) a vivarium, in which there will be living snakes and lizards” (with a “secure, comfortable and aesthetically pleasing living environment” to be “provided for the inhabitants of (2) and (3)”). The court noted that “[w]hilst it may be that a change in the food being sold from cucumber sandwiches to pizzas might not affect premises being used for the purpose of a caf, what is here proposed would appear to me to be more than an incidental change in the way that a trade is carried out.”

In Earl of Sandwich FamilyCo AG v John Montagu Pty Ltd, [2018] ATMO 37, a hearing officer considered opposition by Earl of Sandwich (FamilyCo) AG (which ran “EARL OF SANDWICH” restaurants in the United States and Europe, selling sandwiches such as “The Full Montagu”) to registration in Australia of a trade mark for “JOHN MONTAGU. (fancy)”, filed in the name of John Montagu Pty Ltd. (whose founders named their Australian sandwich business after the “inventer” of the sandwich). Among the evidence filed was a declaration of Lord John Edward Hollister Montagu, the eleventh and current Earl of Sandwich (“founder and shareholder of the Opponent”) (“Montagu”). As summarized by the hearing officer, who was not especially impressed by allegations of confusion and also did not find other bases to refuse to register the new trade mark:

Montagu explains that the noble title of Earl of Sandwich was created in 1660 for Admiral Sir Edward Montagu. By virtue of the Peerage of England, this title has passed down to the declarant. A notable event in the passage

of this noble title through the generations involved his namesake, Lord John Montagu, who was the fourth Earl of Sandwich. Contemporaneous sources referred to in annexures to the Opponent’s evidence report that in 1762, while playing cribbage at the exclusive London Beef Steak Club, the fourth Earl of Sandwich ordered his valet to fetch him some salt beef tucked between two slices of toasted bread. Why this was so noteworthy bears explanation. At the time, eating with cutlery whilst in polite company was de rigueur,[1] and meals taken by those of the Earl’s social stratum were also as a rule served up at a table by a number of servants with a great degree of ritual. After this audacious order had been fulfilled, fellow card players began to see the advantage of taking their sustenance in this form while in the middle of a game—the bread kept the hands free from grease without need for bothersome implements. At the time this dish was probably known in plainer terms such as ‘meat and bread’ but following this incident, people instead began to ask for ‘the same as Sandwich’ or simply ‘a Sandwich’. As this practice spread the familiar contemporary term for this food found its way into popular usage.

[1] This is not to imply that standards have slipped dramatically in the last couple of centuries, but merely to observe that nobility can today handle certain foods (cucumber sandwiches comes to mind) without anyone so much as raising an eyebrow.

The type of wood residue described in the applications received from Box Lake Lumber Products Ltd., Nakusp Mill operations, was recently considered surplus and made exempt from the requirements of s. 127 of the Forest Act, subject to conditions.

Most of the world’s coffee consumption is of coffee from two species of plants: Coffea arabica and C. canephora (the main variety of which is Robusta). Robusta is hardier, less expensive to produce and has more caffeine content than Coffea arabica

After vigorously setting out its disapproval of the Russian invasion of Ukraine, the Russian Tea Room describes itself on its website as “a treasured, globally renowned cultural institution where people of all ages and backgrounds have been having unforgettable dining and celebratory experiences for 98 years.” It adds, “[f]ounded by the Russian Imperial Ballet in 1926, our beloved establishment remains a sanctuary of fine cuisine and elegance and a bastion of delectable, decadent, glamorous fun.”

“Coffee milk” (a drink that is a mixture of coffee syrup or extract with milk) is the official state drink of Rhode Island.

Victoria’s Battle of the Bar bands hit the stage at Da Vinci Centre on April 5, 2024. Tea and coffee (and other libations) may have been served.

Emily C. Lapper, legal counsel with the Ministry of Attorney General, recently joined the editorial team of Fraser, Horn & Griffin’s The Conduct of Civil Litigation in British Columbia.

In RiseandShine Corporation v. PepsiCo, Inc. 21-2786 (2022), the U.S. Court of Appeals for the Second Circuit considered a trademark dispute involving a plaintiff which sold nitro-brewed canned coffee (as well as canned tea) under the name RISE (and had obtained a preliminary injunction against a defendant which marketed a canned energy drink under the mark “MTN DEW RISE ENERGY”). The court vacated the preliminary injunction, finding among other things that “Rise” was not a particularly strong mark: In its ordinary usage, “Rise” suggests waking up and “rising” from bed. Rising is generally associated with the morning, a time when many crave a cup of coffee, relying on its caffeine to jumpstart their energy for the day. The intended and achieved reference of the RISE mark is illustrated by Plaintiff’s company name—RiseandShine—something that a morning cup of coffee helps us to do. The proposition that one isn’t fully awake until one has had one’s morning coffee is a cliché.

The court continued:

The word “Rise” may also refer directly to energy itself; after consuming caffeine, one’s energy levels can be expected to “rise.” The trademark law does not favor giving one marketer an exclusive right to prevent others from using such valuable marketing terms in their own marketing campaigns. When a mark so clearly evokes the claimed virtues of the product it references, that mark, although perhaps muscular as a marketing tool, is weak under the trademark law….Because the word “Rise” is so tightly linked with the perceived virtues of coffee, the mark is inherently weak and commands a narrow scope of protection.

The court further explained this as follows:

If a marketer chose “Toothpaste” as a mark for a toothpaste and sought to prevent other toothpaste makers from use of the word “toothpaste,” the factfinder would not have discretion to find that the plaintiff’s mark was anything other than generic and unprotected. By the same token, if the marketer took the mark “Green Hippopotamus” for its toothpaste, factfinders would not be at liberty to find that such a mark was anything other than arbitrary or fanciful, belonging in the highest rung entitled to the strongest protection….

Michael Harvey has been appointed as the new Information and Privacy Commissioner for BC. Before taking up this post, he was the Information and Privacy Commissioner for Newfoundland and Labrador.

The Britannica website notes, “[u]ntil the close of the 17th century, the world’s limited supply of coffee was obtained almost entirely from the

province of Yemen in southern Arabia. But, with the increasing popularity of the beverage, propagation of the plant spread rapidly to Java and other islands of the Indonesian archipelago in the 17th century and to the Americas in the 18th century. Coffee cultivation was started in the Hawaiian Islands in 1825. By the 20th century the greatest concentration of production was centred in the Western Hemisphere – particularly Brazil.”

According to the National Coffee Association, “[w]hen coffee arrived in Europe in the 16th century, clergymen pressed for it to be banned and labeled Satanic. But Pope Clement VIII took a taste, declared it delicious, and even quipped that it should be baptized. On the strength of this papal blessing, coffeehouses rapidly sprang up throughout Europe.”

Noted one snowy-weather church sign: “Whoever keeps praying for snow— we’re impressed. Now pray 4 World Peace!”

“After careful consideration of the record and Final Approval Motions, the Court finds the instant settlement—which resolves claims regarding the purported mislabeling of ground coffee—is good to the last drop”: Ferron v. Kraft Heinz Foods Company, No. 20-CV-62136-RAR. In its judgment, the U.S. District Court for the Southern District of Florida cited “Maxwell House ‘Last Drop’ Coffee Commercial (1976), https://www.youtube.com/watch ?v=tUnNDEygBjA (last visited July 13, 2021)”.

John Henry O’Fee, K.C., was reappointed as a member of the Health Professions Review Board for a term ending March 31, 2027. Shannon A. Bentley was also reappointed as a member for a term ending March 31, 2026.

“The tea and sympathy offered by the majority does little to offer any hope of change”: Summers Cty. Educ. Ass’n v. Bd. of Educ., 365 S.E.2d 387 (1987), per McGraw J., dissenting.

In Philips Electronics Ltd v. President of the Canada Border Services Agency, 2014 CanLII 33816 (CA CITT), the issue was whether certain espresso machines (the goods in issue) were properly classified as coffee makers. The tribunal noted that “[i]n order to determine whether the goods in issue are “coffee makers”, it “must first consider whether espresso is the same thing as coffee”. Noting that dictionaries and various evidence referred to espresso as a type of coffee, it concluded that “espresso is indeed a type of coffee”. It also found that espresso is a type of coffee that the goods in issue could make, and that those goods indeed fell within the meaning of “coffee makers”.

Under Nevada’s Administrative Code, “[e]xcept as otherwise provided in this subsection, an unarmed combatant shall not consume stimulant drinks or drinks which contain caffeine, including, without limitation, Red Bull™, Rock Star™ and Monster™, during a period beginning at the time of his or her arrival at the site of his or her contest or exhibition and ending at the time of the completion of his or her bout.” However, “[a]n unarmed combatant may consume electrolyte drinks, including, without limitation, Gatorade™, PowerAde™, smartWater™ and PropelT™, decaffeinated coffee, decaffeinated tea or decaffeinated soft drinks on the day of or during a bout.”

Wikipedia explains that “teetotalism” (a word evidently not based on “tea”, although teetotalers may well drink that beverage) is “the practice or promotion of total personal abstinence from the consumption of alcohol, specifically in alcoholic drinks”. Apparently the “tee” is “a reduplication of the first letter of total, much as contemporary idiom might say ‘total with a capital T’”.

A suit against Starbucks alleged that its labeling of the volume of iced beverages was deceiving because those beverages did not actually contain the stated volume of liquid, but rather contained some lesser amount of liquid, plus ice. Affirming the district court’s dismissal of the suit, the Ninth Circuit reasoned: “The statutory claims fail as a matter of law because no reasonable consumer would think (for example) that a 12-ounce ‘iced’ drink, such as iced coffee or iced tea, contains 12 ounces of coffee or tea and no ice….The claim for breach of express warranty fails because the complaint contains no allegation that Defendant promised that the iced drinks in question would contain a specific amount of liquid, as distinct from a total amount of liquid and ice…”: Forouzesh v. Starbucks Corp., No. 16-56366, slip op. (9th Cir. Mar. 12, 2018).

In Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978), the U.S. Court of Appeals for the Second Circuit dealt with an “unusual civil rights case” where William M. Perry, a former judge of the District Court of Suffolk County, appealed from a jury verdict (awarding $80,000 in compensatory damages and $60,000 in punitive damages) in favour of the plaintiff, Thomas Zarcone. Perry challenged only the award of punitive damages. As the Court of Appeals described:

The incident that gave rise to the lawsuit occurred on April 30, 1975. On that night, then Judge Perry was in his chambers during a break in an evening session of traffic court in Suffolk County, Long Island. Zarcone was operating a mobile food vending truck outside the courthouse. Perry asked Deputy Sheriff Windsor to get some coffee, which he did. Both Perry and Windsor thought the coffee tasted “putrid,” and Perry told

Windsor to get the coffee vendor and bring him “in front of me in cuffs.”

Perry directed two plainclothes officers, who happened to be nearby, to accompany Windsor. Wearing his sheriff’s uniform equipped with badge, gun and handcuffs, Windsor went to Zarcone and told him that the judge said the coffee was terrible and that Zarcone had to go inside to see the judge. Windsor handcuffed Zarcone, despite the vendor’s protestations that it was not necessary. When Zarcone said he was too embarrassed to go into the courthouse that way, one of the officers suggested that Zarcone walk between them with Zarcone’s jacket over his hands.

The group then marched through the hallway of the courthouse, in full view of dozens of people. Zarcone heard someone yell that they were locking up the frankfurter man. When they arrived at Perry’s chambers, the judge asked if the Sheriff had “the coffee vending man there in handcuffs.” Upon entering the chambers, Perry ordered Zarcone to be left “in handcuffs until I get finished with him.” A pseudoofficial inquisition then began. Zarcone stood in front of the judge’s desk, behind which the judge sat. A court reporter was present, along with Windsor and the two police officers. Perry told Zarcone that “I have the two cups of coffee here for evidence.” According to Zarcone, whom the jury must have believed, Perry then started screaming at him, threatening him and his “livelihood” for about 20 minutes, and thoroughly scaring him. Just before Zarcone was allowed to leave, Perry commanded Windsor to note Zarcone’s vehicle and vending license numbers and told Zarcone, “Mister, you are going to be sorrier before I get through with you.” After Zarcone left, he resumed his mobile truck route and came back to the night traffic courthouse about 45 minutes later. Shortly thereafter, Windsor returned and told Zarcone they were to go back to the judge. Zarcone asked if he had to be handcuffed again, but Windsor said no. When they reappeared before Perry, he told Zarcone that he was going to have the two cups of coffee analyzed. Perry also said that if Zarcone would admit he did something wrong, then Perry would drop the charges. Zarcone consistently denied that anything was amiss with the coffee, and no charges were filed.

We have described the night’s events in such detail to impart some of the flavor that must have so impressed the jury. The unfortunate occurrence was publicized at the time, and ultimately led to the removal of Judge Perry from the bench. There were unpleasant consequences for Zarcone, as well: He testified that he was very upset by the incident, that he could not sleep, and that he started to stutter and get headaches. Zarcone also required treatment at the Coney Island Hospital, he could not work, and his wife asked him to move out of the house. We need not dwell on this any further, except to note that Perry does not complain here about the jury’s award to Zarcone of $80,000 compensatory damages. However, Perry does challenge the amount of punitive damages, and we now turn to this issue.

….

We turn to the ultimate question whether the punitive damages award of $60,000 is excessive. Given Perry’s position, his relationship of power and authority to plaintiff, who was a simple coffee vendor, the handcuffing, threats and intimidation inflicted upon plaintiff, and Perry’s outrageous conduct, we are not compelled to conclude that the jury acted out of “passion and prejudice.” In short, we do not find that the verdict of $60,000 shocks our conscience. Perhaps to some the award might seem high and

the incident exaggerated out of proportion. But the abuse of official power here was intolerable, and when a jury has dealt with it severely, as it should, we will not draw fine lines to restrain its dispensation of justice.

Yes, we have another case about an imposter teacup dog, this time from the Small Claims Division of the Court of Quebec: Assaad c. Betty’s Tiny Yorkies Inc. (Boutique Betty’s Teacup Puppies), 2023 QCCQ 10235. In this case, the plaintiff claimed $10,113.48 from the defendant in reduction of the purchase price and damages after she bought a so-called “Teacup Maltipoo” puppy who, as an adult (though healthy), weighed more than the maximum weight allegedly represented by the seller. The seller nonetheless offered to cancel the sale and provide a refund, but the plaintiff refused. The judge observed that “Teacup Maltipoo is not a breed of dog, but a description used for very small dogs”, though ranging in weight. On all the evidence, the judge found the plaintiff “knew perfectly well that [the seller] did not guarantee the animal’s weight as an adult. An exclusion that makes sense when you consider that an animal’s weight can be influenced by various genetic and environmental factors.” Further, the dog was not particularly heavy, and “[e]ven if we take the example of Google that a Teacup Maltipoo can weigh up to 5 pounds, the difference with the 7.8 pounds the animal now weighs is far from being sufficient to find that [the seller] acted fraudulently and sold something other than a Teacup Maltipoo.” The court also noted that the plaintiff was “claiming $3,000 for stress, trouble, and inconvenience due to living with a dog that weighs 3 pounds more than what she expected”, even claiming that “she had to buy a car since she could no longer take an UBER because her animal now weighs 8 pounds.” The court observed, “Aside from the fact that there is no evidence that this puppy has given [the plaintiff] anything other than affection and enjoyment, to find a causal connection between a puppy’s weight and the obligation to buy a car is, in the circumstances, an exercise that must clearly be rejected. This part of the claim on its own is a serious indication of the frivolousness and unreasonableness of this application.” The plaintiff’s claim was dismissed.

In R. v. Truong, 2020 ABQB 779, the court was faced with a situation where the police had taken a teacup the accused had used in a restaurant without asking the proprietor, in order to secure a sample of his cast-off DNA (to match to other items seized in relation to a series of murders). Apparently surveillance teams “took three other items of tableware under similar circumstances while following suspected co-conspirators”. The accused claimed this was “a course of deliberate criminal conduct by the police”, that admission of the teacup would constitute an abuse of process, and that

the teacup should be excluded from evidence under s. 24(1) of the Charter However, the accused did not seek a stay of proceedings, acknowledging that “the tableware thefts, while serious, would not justify this result.”

With respect to the teacup specifically, the court noted that “[b]efore the officers decided to take the teacup, they discussed whether they should ask the restaurant for permission to remove it, but decided against doing so in order to protect the investigation (ie: not risk the suspect learning that he was of interest and being followed).” Accordingly, “[t]he officers formulated a plan whereby one of them distracted the staff while paying the bill and the other surreptitiously seized the teacup.” James Bond, move over!

The court noted that the accused in this case had “abandoned the teacup and his interest in any information about him that it may have contained”; as such, the accused could not “bolster the severity of the alleged abuse of process through the importation of privacy interests.” With respect to the claimed abuse of process, the court commented that an applicant seeking a remedy in this regard “must demonstrate state misconduct capable of compromising our foundational principles of justice.” Although criminalization was “helpful shorthand for society’s moral boundaries”, here the theft of tableware did not amount to an abuse: “[w]hat really matters in the context of an abuse of process application is the substance of what the police did, and the objective measure of any misconduct’s severity and impact, not the label attached to it.” In this particular case, the court held that “[t]he police takings of tableware harmed no one physically or psychologically and created no risk of such harms”. While “it interfered with the restaurants’ property, and was a wrongful [taking] of their goods” (the items “were stolen in the plain meaning of that word”), the actual loss “was minimal, bordering on trivial. The police conduct was not demeaning, did not exploit anyone, nor did it disrespect Charter values”. The court also noted “it is far from clear that any of the impacted property owners would have objected to the police taking their items under these circumstances. It may well be that cooperation with law enforcement is not an entirely defunct social value and that many members of the public would willingly cho[o]se to assist police inquiries, even at the cost of a teacup or two.” The court held that on balance, admission of the DNA gathered from the stolen teacup would not bring the administration of justice into disrepute and allowed the evidence.

Thought du mois:

Our culture runs on coffee and gasoline, the first often tasting like the second.

—Edward Abbey, American author and essayist (1927–1989)

CONTRIBUTORS

Joseph C. Bellows, K.C., remains the longest-serving full-time Crown counsel in the province—even longer serving than he was when he last appeared in these pages two months ago! In this issue, Mr. Bellows provides us with the answer key for the photo that appeared on page 200 of our last issue, and he also gives us the first of a two-part series comparing gang violence in Vancouver over the past 50 years.

Eric Kroshus is a senior associate practising employment and labour law at KPMG Law LLP. He is also a former professional hockey player, having played with the Camrose Kodiaks, the Penticton Vees, the Harvard Crimson and the Wheeling Nailers. He is the first place winner of the Advocate’s short fiction competition for 2023.

Katie McGroarty is the communications officer at UVic Law, a position she has held since the start of 2024. Katie has also worked for the provincial government, Camosun College and Monk Office in communications and media relations. Katie’s educational background has her earning degrees in both eastern Canada (a B.A. from Concordia in Montreal) and western Canada (an M.A. from Royal Roads University in Victoria).

Fife Ogunde is a legal consultant and research specialist with research interests in human rights law, criminal law and constitutional law. He has a Ph.D. in law from the University of Nottingham and a master’s degree in human rights law from the same university. He is also a barrister and solicitor of the Federal Republic of Nigeria. Fife is currently a program and policy consultant with the Saskatchewan government.

Leslie Palleson has practised wills and estates, commercial litigation and employment law since 1994. She was the recipient of the Ray Herbert Award at UBC in 1992. A skilled mediator, Leslie has never (to our knowledge) tried to animate dead flesh or otherwise bring corpses to life, although she obviously knows quite a bit about what should happen in the event she accidentally does so.