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Proudly committed to our community for 50 years. y Th The C Cu ulture lt Th Thatt Gott Us Here: “W Wee have strivved to earn and retain the respect, confidence,, and support of our clients, our community, and our feellow lawyers and to do so in a law firm envirronment based upon reespect, loyalty, friendshiip, goodwill, and generrosity.” Paul a Nixon, Q.C. 1948-2020 Fo ounder of Nixon Wenger e
As Nixon Wenger celeb brates its 50th yearr,, Paul Nixon’s legacy and d ideals continue XS MRWTMVI XLI ƼVQƅW SRK KSMRK WTMVMX ERH purpose. We are truly grateful to our staff, GPMIRXW ERH 2SVXL 3OEREKER GSQQYRMX] JSV XLIMV VIQEVOEFPI WYTTSVX ERH [I PSSO JSV[EVH XS SYV RI\X ]IEVW
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Happy Holidays From Our Family to Yours
W W W . D A V I D S O N - C O . C O M
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ATTENTION PERSONAL INJURY LAWYERS Are you looking to sell your personal injury law practice? Our law firm is interested in acquiring personal injury law practices in BC. By working with us, you will receive a fair price for your practice and the assurance that your clients will continue to receive the high level of service and care they are used to. Our team is caring, collaborative, competent, and committed to achieving the best possible outcomes for our clients, including numerous trial results. Contact our Managing Partner, Luke Zacharias at
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Mediation, Arbitration & Dispute Resolution Services • 21-year judicial career: 9 years on the BC Court of Appeal, 12 years as a Supreme Court Judge. • Presided over all manner of cases including criminal, civil and family claims. • 27 years as a leading litigator, has appeared in all courts of British Columbia and the Supreme Court of Canada. • Effective and respected decision-maker. Immediately available to assist with arbitration, mediation, and other forms of dispute resolution with an emphasis on commercial and insurance disputes. Richard Goepel, K.C. 604.642.5651 | rgoepel@watsongoepel.com MOVE FORWARD WITH CONFIDENCE
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OFFICERS AND EXECUTIVES
CANADIAN BAR ASSOCIATION
LAW SOCIETY OF BRITISH COLUMBIA
BRITISH COLUMBIA BRANCH
Christopher McPherson, K.C. President
BOARD OF DIRECTORS
Jeevyn Dhaliwal, K.C. First Vice President
Scott Morishita President
Brook Greenberg, K.C. Second Vice President
Lee Nevens First Vice President
Don Avison, K.C. Chief Executive Officer and Executive Director
Mylene de Guzman Second Vice President
BENCHERS APPOINTED BENCHERS Paul A.H. Barnett Sasha Hobbs Dr. Jan Lindsay
Michèle Ross Natasha Tony Guangbin Yan
Dan Melnick Young Lawyers Representative Rupinder Gosal Equity, Diversity and Inclusion Representative
ELECTED BENCHERS Kim Carter Tanya Chamberlain Jennifer Chow, K.C. Christina J. Cook Cheryl S. D’Sa Tim Delaney Lisa H. Dumbrell Brian Dybwad Brook Greenberg, K.C. Katrina Harry, K.C. Lindsay R. LeBlanc Geoffrey McDonald
Judith Janzen Finance & Audit Committee Chair
Steven McKoen, K.C. Paul Pearson Georges Rivard Kelly Harvey Russ Gurminder Sandhu Thomas L. Spraggs Barbara Stanley, K.C. Michael F. Welsh, K.C. Kevin B. Westell Sarah Westwood, K.C. Gaynor C. Yeung
BRITISH COLUMBIA BAR ASSOCIATIONS
Michelle Casavant Aboriginal Lawyers Forum Representative Patricia Blair Director at Large Adam Munnings Director at Large Randolph W. Robinson Director at Large Sarah Klinger Director at Large
ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL
ABBOTSFORD & DISTRICT
PORT ALBERNI
CARIBOO
Kirsten Tonge, President
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SALMON ARM SOUTH CARIBOO COUNTY Angela Amman, President
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VANCOUVER
YALE
Joseph Cuenca Bahareh Danael Nicole Garton Diane Gradley
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VERNON Chelsea Kidd, President
VICTORIA Marlisa H. Martin, President
CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.) Zahra Jimale, President FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.) Fiona Wong, President INDIGENOUS BAR ASSOCIATION (B.C.) Michael McDonald, President SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA Hardeep S. Gill, President ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE LA COLOMBIE-BRITANNIQUE (AJEFCB) Sandra Mandanici, President
Ryu Okayama, President
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THE
A D VO C AT E “Of interest to the lawyer and in the lawyer’s interest”
VOL. 81 PART 6 NOVEMBER 2023 Published six times each year by the Vancouver Bar Association Established 1943 ISSN 0044-6416 GST Registration #R123041899 Annual Subscription Rate $36.75 per year (includes GST) Out-of-Country Subscription Rate $42 per year (includes GST) Audited Financial Statements Available to Members
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Entre Nous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . On the Front Cover: Scott Morishita By Cheryl D’Sa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Real Estate Agency Law in British Columbia – Part I By Bruce Woolley, K.C. . . . . . . . . . . . . . . . . . . . . . . . . . . Do You Still Give a Hoot if the Point Is Moot? Hootsuite Inc. v. British Columbia (Finance) and the Government’s Response – PST and Whether Cloud Computing Software Is “Software” By David Ross . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Notwithstanding Power: Our Constitutional Protection Against Judicial Overreach By D. Barry Kirkham, K.C. . . . . . . . . . . . . . . . . . . . . . . . . The Trials of the Vancouver Street Ends By Trevor Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Online Mediation – The Benefits By David A. Paul, K.C. . . . . . . . . . . . . . . . . . . . . . . . . . . Sylvie and the Wasp By Leslie Palleson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tax Reporting Requirements for Employment Lawyers By Bhuvana Rai . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Wine Column . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . News from BC Law Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . LAPBC Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A View from the Centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Announcing the 2024 Advocate Short Fiction Competition . . . Peter A. Allard School of Law Faculty News . . . . . . . . . . . . . . . TRU Law Faculty News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nos Disparus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Classified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Anecdotes and Miscellanea . . . . . . . . . . . . . . . . . . . . . . . From Our Back Pages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bench and Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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ON THE FRONT COVER
Scott Morishita, the new CBABC president, graces our cover. Read his inspiring story starting on p. 817 of this issue.
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Medical Malpractice is all we do
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ENTRE NOUS
T
he nine members of the U.S. Supreme Court have lifetime appointments to a court that resolves legal disputes for a population of more than 330 million. The court’s judgments are also, of course, cited beyond U.S. borders, including in Canada. Various individual justices on the U.S. Supreme Court achieve celebrity status both within and beyond the United States—the fascination that exists with the members and exploits of that court in part drove us to write this piece. The late “Notorious R.B.G.” is just one example of the celebrities who have sat on the U.S. Supreme Court. In some measure, their cultural prominence is not surprising. The traits that made those justices prime candidates for appointment to the court obviously remained with them after they were appointed. Those traits may range from a dynamic personality or uncommonly good set of communication skills, to affinity to a popular ideology, to an interesting (sometimes even inspiring) life or career path. If a particular U.S. president liked or respected the person enough to nominate them, the wider population who likes that president may also feel a bond with the appointed judge. Indeed, at least in days of less partisan senate confirmation hearings, others might dare to like appointees too, and even acknowledge publicly that they do. Some justices seem to play up, after appointment, the characteristics that seemed to serve them well in getting to their destination. After appointment, the considerable power that a justice of the U.S. Supreme Court wields itself must serve as somewhat of a magnet for potential followers. It is no surprise that people would seek out judges’ company. The best-intentioned follower of law might consider it fascinating to know and try to understand a judge who can help shape American society. Other members of the legal profession or public might simply enjoy the status derived from being able to say they know a given—or any—U.S. Supreme Court judge. And of course, litigants and litigators who appear before the court might find it convenient and useful to know one or more justices who
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might conceivably, whether subconsciously or otherwise, steer a result in their favour. Judges of the Supreme Court of Canada are much sought-after speakers, but in a less ideologically divided country with a less animated appointment process, we suspect their fan base is more limited than that of their American colleagues. Perhaps in Canada it chiefly consists of members of the legal profession. The fact judicial tenures in Canada, while in some cases long, end at age 75, may also reduce opportunities for potential bad actors to cultivate long-term relationships with judges.1 We wonder if U.S. Supreme Court judges’ celebrity status, the opportunities it opens up and the self-confidence presumably fed by having achieved membership on one of the world’s most prominent national courts have together gone to the heads of at least some of its justices. If so, this might explain the extraordinary sense of entitlement that must exist for those justices to behave in ways that most judges, restrained by a desire to maintain the appearance of impartiality and the good reputation of their courts, would avoid. The editorial board of The New York Times has noted “a weakness demonstrated by virtually every member of the [U.S. Supreme] court for decades, those nominated by Republican and Democratic presidents alike: a willingness to accept freebies, gifts and junkets — both costly and modest — from people and groups who find it useful to be close to nine of the most powerful people in the United States.”2 Even beyond that, among the particular concerns recently raised with the conduct of U.S. Supreme Court justices have been the following:3 •
Justice Clarence Thomas has reportedly received luxury travel and private school tuition for his grandnephew, funded by conservative billionaire and Republican donor Harlan Crow (despite Thomas’s claim to prefer “RV parks” and “Walmart parking lots” to “beaches and things like that”). The editorial board of The New York Times noted that “[t]he long list of comforts provided” to Justice Thomas was shocking not because comforts are not provided to other justices but “mainly in its rococo extravagance”.
•
Justice Samuel Alito, Jr., was reportedly treated by one Republican donor to a salmon fishing trip in Alaska and travelled there on a plane chartered by another such donor, a hedge fund billionaire involved in cases before the court.
•
Justice Antonin Scalia died (in 2016) “while staying in a luxurious Texas hunting lodge owned by John Poindexter, a wealthy busi-
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nessman whose company had legal matters before the court; that trip was never officially disclosed”. In 2004, Justice Scalia refused to recuse himself from a case involving the U.S. vice president, in his official capacity, after the judge travelled with the vice president on a government jet to Louisiana for a hunting trip to which both had been invited. •
Justice Stephen Breyer apparently went on “at least 225 subsidized trips from 2004 to 2018, … including trips to Europe, Japan, India and Hawaii” as well as taking “a trip to Nantucket” that was paid for by “a private equity mogul”.
•
“Justice Ruth Bader Ginsburg got a private tour of Israel in 2018 that was paid for by an Israeli billionaire, Morris Kahn, who has had business before the court.”
•
“Many other justices have taken questionable trips over the years, including weeklong trips paid for by big universities and law schools, some of which were not fully disclosed on their annual reports.”
•
Justice Thomas or his family, as well as Justices Neil Gorsuch and Amy Coney Barrett, have made property sales to buyers with connections to litigation before the U.S. Supreme Court.
•
Chief Justice John Roberts’ wife, who on the judge’s appointment to the U.S. Supreme Court left the practice of law to become a legal recruiter, may have made “more than $10 million in commissions from top law firms who practice before the Supreme Court”.
•
Justice Sonia Sotomayor’s court staff may have pressured people to buy her autobiography and children’s book in connection with her various speaking engagements, and apparently she did not recuse herself from considering whether the court should accept cases where a related publisher could have lost money.
Justices or proxies who have defended them—Justice Alito personally took to the pages of The Wall Street Journal to defend himself 4—have pointed to a variety of justifications for their actions: seats on an airplane would otherwise have been empty; the hospitality came from close friends;5 the hospitality was not that luxurious (with respect to his Alaskan fishing trip, Justice Alito pointed to staying in a “modest one-room unit” in a “comfortable but rustic facility” where “meals were homestyle fare”); they did not realize their benefactors’ connection to court cases and better checks were required at the court level; they may not have done more than have small talk with fellow guests;6 they either abided by the letter of, or misunder-
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stood the extent of, financial disclosure requirements which have since been clarified; they relied on fellow Supreme Court justices’ practice or advice; or, in the case of book sales, they did not want to disappoint audience members who might not, without provision of an adequate supply, be able to get a book signed after lining up. Despite the legal skills of those involved, at least some of these defences do not appear particularly compelling. Of course, some of the instances that have given rise to concerns may indeed have been entirely innocent. It is difficult to begrudge a busy justice a comfortable airplane seat or a quicker path through the airport, and indeed we have read of at least one judge forgoing upgrades that have been offered. With respect to certain property sales, the reality may simply be that justices now move in economic and geographic circles where buyers of property with no potential connection to U.S. Supreme Court cases are limited. The conduct of judges of the U.S. Supreme Court has also generally not been worse than that of various members of other branches of the U.S. government against whom accusations of deeper conflicts of interest and even of corruption have sometimes been made. Further, at least in some cases there was a measure of transparency—if not perhaps a cure—through matters being partially, at some point, disclosed by judges themselves. And of course, there is no way to know that any of the activity reported has impacted the ultimate result of any given case before the U.S. Supreme Court. However, to state what is obvious—other than, perhaps, to the justices engaged in the conduct giving rise to concern—the appearances are terrible. There may quite reasonably be a concern that a particular connection between a U.S. Supreme Court justice and a particular litigant or litigator did affect a result even if the reality is that it did not. More generally, as The New York Times’ editorial board has noted, “when the court’s members accept benefits from the nation’s moneyed elite, no matter their politics, it sends a signal that ordinary Americans without those resources are at a disadvantage.”7 Even if other U.S. Supreme Court justices have not behaved dissimilarly in the past, this is a time for that court’s members to be especially cautious. Faith in the court is being eroded, just at a time where it may be called on to resolve deepening rifts with the broader society to which the executive and legislative branches of the U.S. government have contributed. Particularly in the current fractured climate, there can be no realistic expectation that the benefit of the doubt will be extended to a “liberal” judge by a conservative, or to a “conservative” judge by a liberal. Rather, judges must count on every “weakness”, to use the wording of The New York Times’ editorial board, either giving rise to genuinely felt concern or being strategically amplified by a judge’s opponents, or both.
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Much of the recent media coverage puts the blame for dubious judicial conduct on the fact the U.S. Supreme Court does not have a code of ethics specifically binding on it. This is in contrast to Canada, where the Canadian Judicial Council’s Ethical Principles for Judges apply to the judges of the Supreme Court. Recent comments from Justices Elena Kagan and Brent Kavanaugh suggest that the U.S. Supreme Court may look to adopt a specific code of ethics. However, while the code already applicable to other federal judges in the United States—itself more guidance than fiat—does not formally apply to the U.S. Supreme Court, it is not as though the U.S. Supreme Court’s members are not aware, and notionally respectful, of it. All members of the court subscribe to a “Statement of Ethics Principles and Practices” (the “Statement”),8 which notes that the justices “consult a wide variety of authorities to address specific ethical issues” and recognizes that the canons of the Judicial Conference and its code of conduct provide guidance. The Statement also confirms that justices follow “financial disclosure requirements and limitations on gifts, outside earned income, outside employment, and honoraria”, “file the same annual financial disclosure reports as other federal judges”, and may not earn outside income (except for writing a book) “in excess of an annual cap” that “works out to less than 12 percent of a Justice’s pay”. The Statement adds that “in deciding whether to speak before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public”, with an appearance of impropriety arising “when an unbiased and reasonable person who is aware of all relevant facts would doubt that the Justice could fairly discharge his or her duties.” Further, the Statement provides that “[i]n regard to recusal, the Justices follow the same general principles and statutory standards as other federal judges”, though recognizing that “[a] recusal consideration uniquely present for [U.S. Supreme Court] Justices is the impairment of a full court in the event that one or more members withdraws from a case”, given there are no substitute judges. Thus there are abundant resources already in existence for U.S. Supreme Court justices who need to consult them. However, for individuals who have reached the dizzying intellectual heights of the U.S. Supreme Court, it should not require codification of particular restrictions to know that it is important to maintain the appearance and reality of judicial impartiality and, given the particular logistical difficulties of recusal on their court, that it may be even more important to avoid circumstances where an issue might arise. What is required, though, is sufficient humility for judges to take the step of applying those standards to their own circumstances.
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ENDNOTES 1. Jamelle Bouie suggests (although not exactly in these words) that lifetime tenure itself gives savvy operators who want to cultivate judicial friends more time and opportunity to do so: “Opinion: Clarence Thomas Is as Free as Ever to Treat His Seat Like a Winning Lottery Ticket”, The New York Times (11 April 2023), online: <www.nytimes.com/2023/04/11/opinion/ clarence-thomas-harlan-crow-supremecourt.html>. 2. Editorial Board, “Opinion: The Ethics of the Nine Most Powerful People in America”, The New York Times (11 April 2023), online: <www.nytimes.com/ 2023/04/14/opinion/editorials/clarence-thomastrips-supreme-court.html>. 3. Ibid; Dustin Jones, “What to Know About the Supreme Court and Ethical Concerns”, NPR (5 May 2023), online: <www.npr.org/2023/05/05/1174 057179/supreme-court-congress-ethical-hearing>; Edwin Rios, “What Ethical Controversies Are US Supreme Court Judges Facing?”, The Guardian (12 July 2023), online: <www.theguardian.com/law/ 2023/jul/12/us-supreme-court-justices-ethics-rules -controversy-explain>; Carl Guess, “The Case for a Code of Ethics for the Supreme Court”, The Seattle Times (14 July 2023), online: <www.seattletimes. com/opinion/the-case-for-a-code-of-ethics-for-thesupreme-court/>; Steven Lubet, “The Supreme Court’s Excuses for Ethics Violations Insult Our Intelligence”, The Hill (25 July 2023), online: <thehill. com/opinion/judiciary/4115995-the-supremecourts-excuses-for-ethics-violations-insult-our-intelli gence/>; Greg Stohr, Emily Birnbaum & Bloomberg, “The Clarence Thomas Scandal Isn’t About Breaking the Law: It Shows How Broken Ethics Standards Are on the Supreme Court”, Fortune (7 April 2023), online: <fortune.com/2023/04/07/did-clarencethomas-break-law-propublica-supreme-court-ethicsvacations/>; Brian Slodysko & Eric Tucker, “Supreme Court Justice Sotomayor’s Staff Prodded Colleges
4.
5.
6.
7. 8.
and Libraries to Buy Her Books”, AP News (11 July 2023), online: <apnews.com/article/supreme-courtsotomayor-book-sales-ethics-colleges-b2cb93f927 f995829762c8338c02>; Giulia Carbonaro, “Amy Coney Barrett Faces Scrutiny Over Real Estate Deal With Religious Group”, Newsweek (23 June 2023), online: <www.newsweek.com/amy-coney-barrettscrutiny-real-estate-deal-religious-group-1808590>. Justice Samuel Alito, Jr, “ProPublica Misleads Its Readers”, Wall Street Journal (20 June 2023), online: <www.wsj.com/ articles/propublica-mileads -its-readers-alito-gifts-disclosure-alaska-singer-23b 51eda>. Justice Clarence Thomas, Statement (7 April 2023): “Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twentyfive years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them”. Justice Thomas was sworn in as a justice of the US Supreme Court in 1991, however, which is 32 years ago (that is, more than 25). Justice Scalia noted with respect to his hunting trip, “[i]t was not an intimate setting. Sleeping was in rooms of two or three, except for the Vice President, who had his own quarters. Hunting was in two- or three-man blinds. As it turned out, I never hunted in the same blind with the Vice President. Nor was I alone with him at any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them”: Memorandum of Justice Scalia, No. 03-473 (18 March 2004). Supra note 2. Chief Justice John Roberts, Letter to Honorable Richard J Durbin, Chair of the Committee on the Judiciary, United States Senate (25 April 2023) (the Statement is enclosed with that correspondence).
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THE LANCE FINCH MEMORIAL FUND AT TRU CALL FOR DONATIONS Chief Justice Finch loved the law and devoted many hours as a lawyer and judge to mentoring students, in particular in the area of oral and written advocacy. Chief Justice Bauman has stated: “Lance always commanded the respect of the legal profession in our province and his legacy of significant jurisprudence was acknowledged across Canada. He was a good colleague, a good friend, and a great judge.” In figuring out how best to honour Chief Justice Finch’s legacy, TRU, Judy Finch (and the Finch family), the judiciary, and members of the bar decided on the establishment of a dedicated endowment in Lance’s name that can be used to advance the development of essential advocacy skills and to provide mooting opportunities to students at B.C.’s newest law school. Since it was founded eleven years ago, TRU Law at Thompson Rivers University has taken its rightful place as a mooting competitor. Supported by 26 coaches, close to 200 students have mooted against teams from Canada, the USA, Germany, Estonia and Afghanistan. Fifteen TRU mooters have been chosen as clerks in the British Columbia Courts, the Alberta Court of Appeal, the Tax Court and the Federal Court of Canada. This endowment fund will help to ensure that law students develop the communication skills and confidence needed to become skillful advocates and leaders, whether in the courtroom or boardroom. Individuals, law firms, and businesses that wish to donate can do so by contacting Sarah Sandholm, Director of Development at TRU Law by email <ssandholm@tru.ca> or phone 250-377-6122.
Individuals can also give online: <tru.ca/giving> Thank you for your generous consideration, ORGANIZING COMMITTEE: Peter Senkpiel, Thomas Cromwell O.C., Robert McDiarmid K.C., & Frank Quinn K.C.
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ON THE FRONT COVER SCOTT MORISHITA By Cheryl D’Sa
O
n the front cover this month is Scott Morishita, the first-ever Japanese Canadian president of the Canadian Bar Association, BC Branch (“CBABC”), standing in Steveston, British Columbia, an area of great significance to him and his family. Scott’s paternal great-grandparents immigrated from Mio in the Wakayama prefecture in Japan. There they worked in the fishing industry, but would leave Japan for Steveston, like many who emigrated from Japan at that time. With Steveston being a fishing village, their skills and experience would be transferrable and allow them to send money back to Japan. Scott’s paternal grandparents were born in Steveston, where his grandfather grew up to work as a fisherman. During the abhorrent Japanese Canadian internment, Scott’s grandparents’ property, including his grandfather’s fishing boat, was taken from them and the family was interned in St. Pierre, Manitoba, where his father would later be born. Scott’s maternal family immigrated from Fukuoka prefecture in Japan and worked in the farming industry. His maternal grandparents settled in Kelowna after immigrating. They were not relocated during the internment because they were living in the Interior. Knowing his family’s history from a young age would shape Scott into the advocate he is for equity, diversity and inclusion (“EDI”) in the legal community and beyond. Scott’s father graduated from the University of Manitoba and worked in Port Edward in a pulp mill before moving to Vancouver. He later worked at Simpson Sears before opening his own hockey shop in Richmond. Scott’s
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mother was born in Kelowna. She finished first in her class in nursing school at Royal Columbian Hospital. She became a registered nurse at Richmond Hospital. Scott has immense respect for family and traditions. After his grandparents passed away, special traditions were lost. Scott has taken it upon himself to carry these on. For example, every New Year’s Day, Scott takes homemade noodles, mochi and soup broth to his relatives to honour and respect their traditions. He also started his own tradition of Sunday dinner with his parents, sister and now brother-in-law and nephews, which has carried on for around 20 years. Traditions became increasingly important to Scott as he got older and became more comfortable with his identity. His journey to wellness and self-acceptance evoked a curiosity about himself, and took him on multiple trips to Japan. He continues to devote time to these and other special Japanese traditions that are deeply woven into his family’s roots. Young Scott began ice skating around age 3 and played hockey by age 5. He played minor hockey all the way into first-year university. By age 10, his father had taught him how to golf, and Scott spent many summers enjoying the sport. Scott attended Steveston Secondary School and describes himself as a “joiner” at that time. He was involved in student government, becoming the president in junior high and the vice president in senior high. In addition to playing on the golf team, he was also an assistant coach to the women’s golf team, and played trumpet in the school jazz band. Like many, Scott found the move from high school to university to be a difficult one. Having felt like part of the community in high school, he struggled with the anonymity of university. He started in the Faculty of Science at UBC, but a second-year political science class inspired him to pursue a bachelor of arts degree instead. Following this switch, he thrived, and it was suggested that he should consider graduate school in political science. Scott was also elected to the executive of the Alma Mater Society, which is the UBC student union. Although he remained at UBC for his master’s degree in political science following his B.A., he did not finish his thesis. Scott’s love of politics led him to an internship at the legislature in Victoria in 2002; he applied to law school just before starting his internship. He entered first-year law at the University of Victoria later that year. Scott was active in student government, holding the role of Vice-President (Internal) of the Law Students’ Society (“LSS”), where he worked to make sure EDI policies were a part of LSS programs. When discussing Scott’s steadfast desire to increase EDI, a law school classmate noted that “Scott’s early commitment to this work was deeply connected to his values as a person, his
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innate leadership qualities and his unshakeable belief that the legal profession was meant to be of service.” By his own account, Scott was not a great student for the first two years of law school and was not able to secure articles before graduation. However, he did well in third year which led him to an articling job beginning the following year. After graduating from law school, he worked as a research assistant, a teaching assistant and at Costco doing a physically demanding job while he waited to begin articles. Unbeknownst to everyone, through law school and after, Scott was quietly battling undiagnosed depression. He describes it as undiagnosed because at that time there was not much awareness about it, and there was significant stigma around it. Further, culturally, it was not something discussed. Although Scott knew something was not right, he did not know how to deal with it because he did not want to disclose his symptoms to anyone. He hoped that the issues with his mood would just resolve. Scott articled at Alexander Holburn Beaudin + Lang LLP in 2006. Memorable work included a waterslide liability file and another where he needed to learn about making sparkling wine. He was hired back into the general insurance and construction practice groups. Scott was well liked, described as kind and humble, and even back then he expressed immense gratitude for anything anyone did for him. Scott’s career was flourishing, but his mental health declined significantly during his articling year, and he did not want to seek help, feeling embarrassed that it would be seen as weakness. He also worried that discussing his feelings would lead to him disclosing his sexuality and being closeted. He became good at hiding both his sexuality and depression, and it was deeply weighing on him. Scott tried desperately to push through, but while he was a first-year associate, his mental health reached the point that he was paralyzed by indecision, such that it was taking him hours to accomplish a task that should have been minutes. He was scared to talk to anyone until he remembered a PLTC presentation by Derek LaCroix, K.C., of the Lawyers Assistance Program of BC (“LAPBC”) and sent him an email. Derek responded almost immediately and asked Scott when he could come and meet with him. While seeking assistance to cope with his depression, it was strongly recommended to Scott by professionals that he should take some time off, but he was unwilling to do it, terrified it would be career ending. He desperately tried to find another solution, but his mental health was continuing to suffer. Eventually, Scott took three and a half months off work. It was very scary for him. However, when Scott told other lawyers about his leave, some shared their own experiences or experiences of people very close to them,
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and Scott realized how many people were suffering silently. Scott says time away was absolutely the only decision, and the process of getting mentally well was the best thing he could have done personally and professionally. During his leave, Scott worked hard, including by taking personal growth courses. While doing this work, he realized that being in the closet was very bad for his mental health, but he had a lot of fear about coming out. He worried about prejudice, being seen as different, losing relationships and, of course, his career. Scott returned to the firm having made progress with his depression. His depression has now been in remission for about ten years. Scott left the insurance defence bar for the plaintiff’s bar and joined Slater Vecchio LLP, where he worked from 2008 to 2012 on plaintiff personal injury files. There he gained extensive experience in chambers, discoveries, mediations and trials. These years solidified his love for the law and litigation in particular. Scott went on to Collette Parsons Harris from 2012 to 2014, where he continued to gain trial experience. Scott has extensive trial experience as a civil litigator. The collegiality he shows to opposing counsel during trials and the mentorship he provides to his junior counsel never go unnoticed. Even during his early years of practice, Scott had already developed an understanding of mentorship. He was often the first to email new lawyers when they joined a firm he worked at. One of those lawyers recalls Scott helping him buy suits when the lawyer was a relatively new call, unsure of the appropriate attire. There are countless stories of Scott quietly helping others with no expectation of ever receiving anything in return. Scott is also extremely appreciative of anything done for him. His handwritten thankyou notes are just one of the ways he ensures those around him feel valued. Following a trial, Scott took his junior counsel and their spouse for dinner as a thank you for the time and sacrifice. This level of gratitude is truly unmatched. Scott is an exceptional baker and bakes for friends and family when they are going through difficult times to show support. His lemon bars and chocolate chip cookies are legendary. In addition, when friends or colleagues have lost loved ones or had loved ones in hospital, Scott has sent them gift cards for food delivery services. All this is to say that the kindness, warmth and generosity that you will see from the new CBABC president is something many have been fortunate to experience for years. After many years in private practice, Scott was eager for a change and joined the Municipal Insurance Association of British Columbia (“MIABC”) in 2014. He would spend the next five years of his career at the MIABC working on personal injury and construction law cases, among many oth-
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ers. His work at MIABC took him all over the province. He attended circuit court in Princeton and Houston and completed a trial in Rossland. He also conducted three trials with self-represented litigants. His MIABC colleagues say he set the gold standard of practice, to the point that he is still quoted when onboarding new employees. While at MIABC, he began an informal coffee chat with colleagues to increase collegiality and mentorship. This tradition continued after Scott left MIABC. Scott reached a point in his career where he felt comfortable coming out to his family, friends and colleagues. He had waited a long time to come out, unsure of how it would affect his relationships, his friendships and especially his career. However, the people he worried about telling ended up being some of the most supportive. He did not encounter any negative reactions. Scott has continued to share his story publicly in the hopes it will help others, and he believes strongly in representation in leadership. Since July 2019, Scott has been associate counsel at Rice Harbut Elliott LLP after an opportunity arose to work with a longtime close friend. Scott’s current colleagues describe him as a moral compass. He skillfully navigates sensitive matters and makes people feel heard. Clients attach to him. When he began at the firm, he sat down with each member of the team individually and talked to them about his background, explained that he has an open-door policy and took the time to ask what they needed from him. Scott is the friend and colleague that many go to when they need some sage advice, whether file-related or life-related. Scott always makes time for everyone. He enjoys listening and also loves to share about his own life, in particular his travels and love of a good meal. Scott’s favourite place to travel is New York, a city he has visited upwards of 44 times. In addition to the wonderful restaurants, he has a deep appreciation for New York’s theatre scene and has watched more shows than one could count. He also has framed Broadway show posters hanging in his home. Scott’s restaurant reviews have been something his friends look forward to when he travels. He meticulously captures photos of what he is served and reviews the entire meal on his social media with passion and excitement. Scott’s extensive history of volunteering dates all the way back to his high school days, when he co-founded a group to volunteer at events and for charitable organizations. In graduate school at UBC, Scott started volunteering with the British Columbia Society for the Prevention of Cruelty to Animals, which is perhaps where his love of dogs, especially Norwich Terriers, began. Although Scott loved volunteering, during the early years of practice, he—like many of us—found it difficult to devote the time. While at MIABC,
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Scott decided it was time to return and began with a volunteer board role for RainCity Housing and Support Society, where he served for four years. This non-profit organization provides housing for those who have longterm experiences of marginalization. Scott chose this organization because of his interest in harm reduction and supportive housing for vulnerable people. Scott has also been a longtime volunteer for LAPBC, where he is described as humble, consistent and reliable. He was supportive and would share his story in workshops, which was encouraging to others and deeply valued. Scott’s smart and thoughtful approach was also valued during his time as a board member for the Continuing Legal Education Society of BC. He was very inclusive of all perspectives and often wrote handwritten notes of encouragement and gave positive feedback to those he worked with. He began his time on the board by saying that he was there to support and help in any way he could, and he stayed true to that during his tenure. His true love of governance was apparent in all the work he did. Scott is currently a mentor to seven young lawyers. He has been a Federation of Asian Canadian Lawyers of British Columbia mentor since 2019 and a CBABC mentor for years. Scott became involved with the CBABC for many reasons, the main ones being his concern over attacks on institutions and the Trinity Western University law school accreditation issue. He felt very strongly that people like him needed to have their voices heard. Wellness and lawyer independence will be strong themes of his presidency. A current colleague of Scott’s says, “Scott [will] be an outstanding CBABC president because, when faced with a tough decision, he has the curiosity to fully learn about a matter, the thoughtfulness to consider the perspectives of all who would be impacted and the courage to ultimately make the right call.” Previous CBABC presidents describe Scott’s in-depth knowledge of the legal community, his incredible smarts, his commitment to EDI and his ability to make everyone feel appreciated as a few of the many attributes that will serve him well this year. Knowing, accepting and appreciating who he is will anchor Scott through his presidency, and he will undoubtedly carry his father’s words with him: “For our grandparents’ generation, being in a position of leadership or esteem was not a possibility. To see Scott become the first Japanese Canadian CBABC president would have represented the ultimate achievement in overcoming discrimination and racism. To see Scott take on this role and further progress for other generations would have made them extremely proud.”
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REAL ESTATE AGENCY LAW IN BRITISH COLUMBIA: PART I By Bruce Woolley, K.C.
T
his article has two parts. Part I reviews the history of real estate agency law in British Columbia from the 1950s to the present. Not surprisingly, that period also encompasses my lifespan to date. Part II is a brief history of organized and regulated real estate in British Columbia, discussing the Real Estate Council of BC (“RECBC”), which was integrated, along with the Office of the Superintendent of Real Estate, into the BC Financial Services Authority (“BCFSA”); the Canadian Real Estate Association (“CREA”); the British Columbia Real Estate Association (“BCREA”) and its member real estate boards (“Boards”); and the Sauder School of Business, Real Estate Division, at UBC. I will also discuss some related historical matters, including, in this part, a necessary digression about my parents and real estate agents. I have written this article at my home in Surrey, British Columbia, the unceded traditional territory of the Semiahmoo, Katzie and Kwantlen First Nations. MY PARENTS AND REAL ESTATE My parents moved from Victoria to Vancouver in 1955. They wanted to buy a house, which in those days was a real possibility. They found a very small house on the west side of Vancouver. They bought it for $11,000 and financed the purchase by way of an agreement for sale with the seller. That was a common method to finance a house purchase at that time. My father was handy with tools—his father being a cabinet maker—and my mother, who has just turned 96, was a very hardworking “homemaker” (yes, I have cleared the term with her). They wanted to “get ahead”. They decided to buy houses, renovate them and then sell them at a profit. They were flippers, known in those days as hardworking people. They worked closely with Mr. Bob Wade of Sasamat Realty. In those days in Vancouver, there were a number of small real estate offices, usually very local. Sasamat Realty served the west side of Vancouver: Point Grey and Dunbar. The managing broker and owner was Mr. Townsend. My recollec-
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tion, as a very young boy at the time, is that he was about the tallest person I had ever seen. He drove a black Chrysler Imperial with massive fins, smoked continuously, wore a very black suit and half of one of his fingers had been “lost”. I was afraid to visit with him when my parents went to his office—what if the finger touched me? Sasamat Realty was located on West 10th Avenue, near the University Gates. That end of 10th Avenue housed, to recall a few, the Golden Sheaf Bakery; the 5, 10, 15 cent store with its creaky wooden floors; Cunningham’s Drugs; Dean’s Restaurant; Bob’s Meat Market; a Chinese grocery store with an earthen floor and wooden sidewalk outside; and a Dairy Queen. Sasamat Realty was there even before Stella Shurety’s “The Diner” opened for business in 1959. Stella died in 2021 and the property that housed the restaurant and an adjacent business was listed for sale for $3 million in 2023. It apparently sold for “over listing”. Many of you, as law students, may remember inexpensive dinners there, with outspoken Stella, “The Queen of West 10th Avenue”, very much in charge. At the time, we lived in a number of homes in the area. We had deliveries at our homes, from the milk man (that is what all of them were called— “man”), the bread man, the egg man, the fish man and the Fuller Brush man, among others. They all had Amazon beat, both for efficiency and for social relations. On Saturdays, our family would often visit the grocery department of Woodward’s store in downtown Vancouver, where very efficiently the groceries would be loaded in our car as we exited the parking lot. From 1955 to 1963, my parents bought, renovated and sold six houses. Upon the purchase, my father’s father (who provided carpentry services in the construction of the St. Roch) would come over from Victoria and stay with us while he and my father re-did the kitchens and bathrooms and often the hardwood floors. No granite countertops or marble—it was basically new Arborite™, wooden hand-built cabinets, linoleum and fresh paint. Once the renovations were done, we would begin the search for the next house. Almost every Sunday, after the obligatory church service in the morning (where I would be entranced looking at the “old ladies” in the row in front of us, furs around their shoulders with the animal heads still attached, eyes staring at me), we would have lunch at home (no McDonald’s) and then set out in our black and turquoise finned Plymouth looking for houses. My mother would have circled in the weekend Vancouver Sun (about the only source at the time for real estate advertising) ads for houses she thought might be appropriate. Almost all houses were “open houses”, not “by appointment only”. If my older brother Brian and I were good, there was the promise of an ice cream cone at the end. We would spend the afternoon
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going through houses. It seemed like there were few houses on the west side of Vancouver we did not view. Most of them are gone today, replaced by much larger houses. When we were interested in a house, and often we were interested because Bob took us there, my parents would go through the bargaining process. Lawyers were not used. My parents relied on Bob. He was our agent, and all would be well. As it turned out, they never did have problems in the purchases or sales, and Bob and Sasamat Realty certainly served my parents well. I note that in 1968, at age 56, Bob won the U.S. Senior Veterans Squash Championship held at Harvard University. By the mid-’60s, my parents were prepared to move out of Point Grey to tackle the Oakridge/Kerrisdale area. No more Bob—beyond his territory. My parents were referred to Mrs. Gebbie of Ker and Ker, who found us a nice home on Hudson Street. My parents sold the home in 1969 for $55,000 (the almost 90-year-old house has a current value of $4 million) and moved south about a mile into the last home I lived in before they divorced. I moved into a small rental apartment in Marpole, with green and pink fixtures in the bathroom, to start my articling at Clark Wilson. I lived through the ups and downs of the real estate market in Vancouver. I met hundreds of real estate agents along the way. I became a real estate lawyer. Goodbye Perry Mason dreams. Did real estate agency law change over that time, or is it just about the same? MLS AND SUB-AGENCY Real estate agency law in the 1950s through the early 1990s was clear when it came to agency through the Multiple Listing Service™ (“MLS”). When a seller listed a house for sale, and almost all houses were listed through the MLS™, the brokerage that listed the house had an agency relationship with the seller. All of the agents employed by that brokerage also had an agency relationship with the seller. This relationship is often referred to as brokerage agency, still practised in some jurisdictions, and used in British Columbia today for rental property management. If a buyer approached the listing agent hosting the open house and did not have an agent, and if a sale were concluded, the listing brokerage kept one hundred per cent of the commission. It then split that commission with the agent of that brokerage who was performing the services. In those days, most of the agents were employees of the brokerage. That would be uncommon today, when the vast majority are independent contractors. In those days, agents went to the office, as there were no mobile phones or computers. They spent time with their managing brokers and other licensees in the brokerage.
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Often a potential buyer would have a “relationship” with a real estate agent, such as my parents and Bob. The buyer viewed the agent as their agent, not the seller’s agent. The listing agent would negotiate with the selling agent—the agent “acting” for the buyer. In many circumstances, the listing agent treated the selling agent as the buyer’s agent, the selling agent thought they were the buyer’s agent and certainly most of the time the buyer was convinced that the selling agent was their agent. However, the courts consistently held that the listing agent and selling agent, through their brokerages, were both agents of the seller. The MLS listing agreement commonly used at the time provided for a commission to be payable to any member of the MLS who effected the sale. The Real Estate Board of Greater Vancouver kindly provided me with a copy of a Multiple Listing Agreement used in 1988. It provides: “I understand that you will list the said property with member agents of the MULTIPLE LISTING SERVICE of the REAL ESTATE BOARD OF GREATER VANCOUVER, whom I expressly authorize to act as your agents to offer my said property in accordance with this agreement. In consideration of your accepting this listing, endeavouring to effect a sale of the said property and listing with a member agents [sic?] aforesaid, this listing is made exclusive and you are appointed sole agent save as aforesaid.” Irwin Davis (more about Irwin in Part II), author of Real Estate Agency Law , stated: “The law is now quite clear that the listing agent under a multiple is the prime agent while all other members are, or at least may become, co-agents with all that follows from this relationship. In the result, the presence of two agents does not affect the rights of the principal in any way.”1 Irwin also noted: “Molstad v Fedoruk[2] shows that by virtue of a multiple listing an agent … may become a subagent of the vendor especially where he participates in the commission. This places him in a fiduciary relationship with the owner, and requires him to make full disclosure of the identity of the purchaser.”3 The second edition of the book, published in 1978, was a recognized authority on real estate agency law in British Columbia, the first edition having been written at the request of RECBC. Irwin was the first secretary of RECBC when it was formed in 1958. Obviously this discussion of sub-agency needs to be confined to multiple listing situations—the common listing situation for residential real estate. In commercial real estate, sellers often hired brokerages using one-off agreements, to be construed strictly in accordance with their wording. In commercial circumstances, buyers might have their own agent, or would work through their lawyers. I am not examining those circumstances in this article. I am focusing on residential sale transactions, normally carried out
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through the MLS. If you are researching real estate agent duties, keep in mind that the starting point is often the listing agreement. The listing agreement commonly used in the 1950s through the early 1990s was quite different from the current one, which does not use either of the concepts of sub-agency or brokerage agency.
KNOCH ESTATE v. PICKEN: A CHANGE In 1991, the Ontario Court of Appeal issued a judgment that rocked the real estate world in British Columbia. In Knoch Estate v. Picken4 (a very long and very well-reasoned decision), the court basically held that whether the selling agent was in a fiduciary relationship with the seller depended on the facts. This was the case whether or not a multiple listing agreement was used. The mere fact that a person is an agent does not subject them to fiduciary duties toward the principal. While a selling agent may be the agent of the vendor for limited purposes, and be obliged not to deceive or mislead the vendor, in the absence of a true fiduciary relationship the selling agent will not be required to do more. In some cases, it may be a fine line whether a fiduciary relationship exists. It is not correct that all agents are always agents for the vendor. Any practice, custom or understanding in the real estate industry to this effect cannot overcome the correct legal principles. ASSUMED BUYER AGENCY While Knoch is very well reasoned and is, in my opinion, absolutely correct, it did not help real estate agency practice as it then existed. What selling agent (and their managing broker) would like to receive legal advice that whether or not you have fiduciary duties to the seller “all depends on the facts”. The industry struggled with how to modify the system and by late 1993 / early 1994 had started to amend its listing agreements. “New documentation included a modified MLS contract clearly stating that the seller assumes all salespeople working with buyers represent those buyers as their agent and owe no fiduciary obligations to the seller. Also, listing agents disclose to and get consent from the seller that they will share compensation with any co-operating agents.”5 I note that BCREA provides many standard forms to their licensee members, known as REALTORS™ (a trademark of CREA, the umbrella organization for all of the provincial associations). Not all licensees are REALTORS— for example, strata property managers. Boards in British Columbia are members of BCREA, and sometimes they also provide standard forms, not all of which are the same as those provided by BCREA. Lawyers should be
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careful, when dealing with “standard” real estate forms, that they are referring to the correct form. The real estate industry has, over the years, attempted to bring into more common usage exclusive buyer agency agreements. The concept has never taken hold, and the standard form exclusive buyer agency agreement produced by BCREA is not often used. There is provision in the agreement for the buyer to pay commission, but this is normally solved by the listing agent agreeing to share commission with the buyer’s agent. If a potential buyer does not enter into an exclusive buyer agency agreement, the risk to the agent working with the buyer is that they will spend a great deal of time with the potential buyer but the buyer may find a house on their own, approach the listing agent directly and conclude the purchase, with the agent who had been working with the buyer not being entitled to any of that commission. LIMITED DUAL AGENCY With the introduction of assumed buyer agency, other issues began to arise. Previously, dual agency would really not arise under the MLS system, as both agents were agents for the seller. What if, under assumed buyer agency, the listing agent worked for Brokerage A and the buyer’s agent also worked for Brokerage A? Since the listing agreement was with the brokerage, and both agents work for the brokerage, there is clearly a conflict. What if the listing agent brings the buyer to the transaction? This is commonly referred to as “double ending”, as the agent will be receiving all of the commission. Given assumed buyer agency, this is also a conflict. The industry appeared to resolve the issue through the introduction of limited dual agency. Dual agency, which is an obvious conflict, occurs when the agent acts for both the buyer and the seller (it could also apply in situations where the licensee was acting for two potential buyers of the same property). In limited dual agency, the seller and the buyer agreed that the brokerage will represent both. However, the duty of disclosure was limited by placing certain restrictions. The agent could keep three types of information from one party confidential against the other party: the price a client was willing to accept or pay, the motivation of either client and either client’s personal information. The agent still had to disclose to the potential buyer all known defects in the property. Limited dual agency became very common and, in my opinion, was often used in inappropriate circumstances. However, some real estate agents would reply that it is better to have limited dual agency than to have the buyer with no agency at all. A major issue arose in circumstances where
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limited dual agency was used when the agent for the seller and the agent for the buyer worked for the same brokerage. Since both represented the brokerage, it was still dual agency in the sense that the brokerage was providing real estate agency services to both the buyer and seller. The situation was further complicated by the fact that the two licensees involved often did not act as if it were limited dual agency and therefore did not act in accordance with the restrictions of the standard limited dual agency agreement. The two agents acted as if each of the buyer and the seller were their own clients. DESIGNATED AGENCY In 2012, the industry moved to designated agency, which became the industry standard in British Columbia. Under a designated agency agreement, the listing brokerage appoints one or more of its licensees to be the designated agent of the seller. The designated agent assumes all of the agency duties and the brokerage assumes only contractual duties to the seller. In other words, there is no agency relationship between the brokerage and the seller. Under this system, if Brokerage A designates B to be the designated agent for the seller, Brokerage A may designate C, another licensee of Brokerage A, as the designated agent for the buyer. This is no longer brokerage agency. It is designated agency, which then allows each of the designated agents, working for the same brokerage, to act solely in the best interests of the client with whom they have the agency relationship. That is the system you will encounter in British Columbia today. Standard listing agreements, contracts of purchase and sale and other standard form documents (such as mandated disclosures) have been modified to reflect this system. Rules under the Real Estate Services Act6 (“RESA”) have been accordingly modified. Those rules were made and enforced by RECBC. As a result of government intervention, RECBC no longer exists. RESA and the rules are made, administered and enforced by BCFSA. More about that in Part II of this article. I note that standard documents such as disclosures made under the rules have a statutory basis, unlike standard documents made by BCREA. The system is not without its issues. For example, a managing broker may be placed in an awkward position when both designated agents are from the same brokerage. Licensee A, acting for a seller, storms into the managing broker’s office and starts complaining about a transaction. The managing broker has to be careful, before hearing confidential information and before giving advice, to ensure that the other half of the transaction is not also owned by that brokerage. If the managing broker gives advice to A
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and then Licensee B, acting for the buyer, asks for advice from the managing broker, that will be an issue. Second, I still have problems with the fact that, according to the listing agreement, the brokerage owes no agency duties at all to the clients. What if there is a commission dispute and the seller refuses to pay commission? What value has the seller received from the brokerage? Food for another article. DUAL AGENCY RESTRICTED With the introduction of designated agency, there seemed to be little if any need for limited dual agency. However, it can be an issue in more remote areas of British Columbia. If, for example, a brokerage in an isolated area of British Columbia had a managing broker and one other licensee, that brokerage could not use designated agency for a seller and buyer, since the managing broker would be acting for one of the parties and therefore could not exercise the managing broker’s management and supervisory duties for the other licensee. In 2016, RECBC established the Independent Advisory Group (“IAG”) and RECBC asked the Superintendent of Real Estate, Carolyn Rogers, to be the chair.7 One of the IAG’s recommendations was the abolition of dual agency in trading services. Ultimately, rules were passed that greatly restricted dual agency. Rule 63 provides that a brokerage may not engage in dual agency. That is followed by rule 64, which provides that a brokerage may engage in dual agency in respect of a trade in real estate if the real estate is in a remote location that is under-served by licensees, and where it is impracticable for the parties to be provided trading services by different licensees. The balance of rule 64 provides for certain disclosures and an agreement to document the relationship. We have now come to the end of Part I. Part II, to be published in a future issue of the Advocate, will deal with the main entities that are involved in the organization and regulation of the real estate industry in British Columbia. ENDNOTES 1. 2. 3. 4.
(Butterworth & Co, 1978) at 170. (1957), 7 DLR (2d) 574 (Alta CA). Supra note 1 at 170. 4 OR (3d) 385.
5. Anne Broadfoot, A History of Service 1919-1994 (Real Estate Board of Greater Vancouver, 1995). 6. SBC 2004, c 42. 7. I was a member of the IAG.
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DO YOU STILL GIVE A HOOT IF THE POINT IS MOOT? HOOTSUITE INC. v. BRITISH COLUMBIA (FINANCE)1 AND THE GOVERNMENT’S RESPONSE – PST AND WHETHER CLOUD COMPUTING SOFTWARE IS “SOFTWARE” By David Ross
W
hen you tilt at windmills, or over taxes, sometimes you win the battle, but you almost always lose the war. That is always a risk when the other side can rewrite the rules and keep your money anyway. Hootsuite Inc. (“Hootsuite”) recently learned that hard lesson. In March 2023, Hootsuite won its appeal of provincial sales tax (“PST”) assessments on two key services2 it purchased: technical support services and cloud computing services, both provided by Amazon Web Services (“AWS”).3 British Columbia assessed Hootsuite on the basis that the services were purchases of either software or telecommunication services. The court disagreed, ruling that AWS’s software was not software and only incidentally telecommunication services. The case is important because it is the first case to consider what is—and is not—software under British Columbia’s “new” Provincial Sales Tax Act (“PSTA”).4 But the case seems destined to never become the law: British Columbia has announced its intention to retroactively amend the legislation in the 2024 provincial budget “to support how the PST was administered prior to the court decision”. The amendment will clarify “how PST applies to remote access to software, cloud computing services, online support services and other associated services”.5 British Columbia is correct to overrule the decision. The judge’s test for a “software program” in the PSTA is, respectfully, overly restrictive, and
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potentially limited to consumer software applications like Microsoft Office. Perhaps the court was reluctant to adopt a broader interpretation that would, on the surface, capture most goods and services in the modern economy that incorporate software at least incidentally. If so, that concern was unfounded. The PSTA already provides broad exemptions for software or telecommunication services (or physical goods) that are incidental to providing some other, non-taxable service. And even if software is an increasingly large component of physical goods like refrigerators and automobiles, physical goods are already taxable tangible personal property under the PSTA whether they incorporate software or not. Or perhaps the court was reluctant to answer the policy question of “What software should be taxed?” broadly, knowing that if the legislature disagreed with the court’s answer, lawmakers could make their own choice.6 If so, the legislature accepted the court’s silent invitation. From British Columbia’s perspective, letting the decision stand would have an unacceptable effect on the province’s tax base. So much software is now accessed online through the “cloud”, so many more things and services are now provided as software beyond common consumer software applications like word processors or e-mail, and the trend is unlikely to reverse itself. Limiting the tax base to a narrow, late-20th century concept of “shrink-wrapped”7 software would, increasingly, leave an important sector of the economy untaxed that had always been taxed before. BACKGROUND: TECHNICAL SUPPORT AND CLOUD COMPUTING SERVICES/PRODUCTS Two principal services/products were at issue: AWS support and two cloud computing infrastructure services called elastic cloud compute (“EC2”) and simple storage services (“S3”).8 AWS support was exactly what it sounds like: technical support from AWS computer engineers for Hootsuite’s use of AWS’s services and systems. AWS support was accessed in a variety of ways: a chat feature in the AWS console (AWS software provided to AWS customers to manage their use of AWS’s services), the telephone and e-mail. EC2 and S3 are two types of “virtual machines” offered by AWS. EC2 hosts Hootsuite’s product, a social media management platform. S3 provides data storage and backup. A virtual machine is a combination of software, hardware and telecommunications that allows users to buy computing power and capacity online: AWS’s customers run their own software, operating systems and network as if they had their own server, except the “server” is software designed to
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mimic the operation of a standalone computer, accessed online and using the computing resources of a much bigger provider like AWS.9 WHAT IS TAXABLE “SOFTWARE” UNDER THE PSTA? PST applies to the purchase price of: 1.
software;
2.
purchased for use on or with an electronic device;
3.
ordinarily situated in British Columbia.10
Section 1 of the PSTA defines software as follows: “software” means the following: (a) a software program that is delivered or accessed by any means; (b) the right, whether exercised or not, to use a software program that is delivered or accessed by any means; (c) a contractual right (i) to receive modifications to our new versions of software programs described in paragraph (a) or (b) if modifications or new versions become available, whether or not that right is exercised, and […]
“Software program” is undefined in the PSTA. In its predecessor act, the Social Services Tax Act (“SSTA”), software and software program had more restrictive, and circular meanings. “Software” was limited to “packaged or prewritten software programs”11 and “software program” meant “software that is packaged or prewritten software”.12 So software meant software programs, and software programs meant software, as long as both were packaged or prewritten. (In the drafters’ defence, the definition of “software” also included exceptions for custom software, so there was some purpose in having both definitions.) The judge rightly rejected applying the old definition in interpreting the words “software program” under the PSTA: In my view, because the range and scope of software has expanded so dramatically into so many products and services over the years, the legislature drew a distinction between software and software programs for taxation purposes when it revised the legislation to ensure consistency with respect to how products and services are treated for taxation purposes.13
But then the judge (erroneously in my view) reasoned that “software program” must be narrower than all software, and that the legislature drew the distinction to limit the scope of the PST to products rather than services, so that not all software would be “software” subject to PST:
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Implicit in this finding is the conclusion that, under the PSTA, all “software programs” are “software” but not all “software” constitute “software programs”. Under the SSTA, this was not the case.14
Another interpretation could have been that the legislature intended to do away with the old requirement that software and software programs be limited to packaged or prewritten software, expanding the scope of the definition. But to maintain a distinction between software that is a product and software that is a service, the judge, respectfully, adopted an overly restrictive test for “software program”: In my view, the key distinction between “software” and a “software program” for the purposes of the PSTA is that a “software program” requires the purchaser to utilize the software as an “application”; that is, the user must be able to interact with the software and create an output based in part on those interactions with the program.15
Software as a Service Is Primarily Software, Not a Service, Even Based on the “Opacity” Test The judge found that EC2 (and S3) is not a “software program” because it is a virtual machine and cannot be manipulated by Hootsuite, thus being “opaque” to Hootsuite: EC2 creates a virtual machine to provide computing resources to Hootsuite. The hardware, software stack and utilization of the two that create the virtual machine is opaque to the user - it cannot be manipulated or directly accessed by Hootsuite.16
The judge further explained the degree of use required to not be opaque: In my view the critical element to this section, within the context of software and software programs is the word “use”. Within this context “use” requires the user to interact directly with the program to create an output.17
Even British Columbia’s own interpretation of “software” draws distinctions based on the degree of control a user has over an online resource: Software is often purchased over the Internet, such as through website subscriptions, web hosting services, and auction or shopping sites. Generally, if a customer purchases access to a website that provides them with the ability to employ some degree of functionality on the website beyond merely viewing website content, the customer is purchasing a right to access software, which is subject to PST. The following are indicators that a customer is purchasing software and not just access to a series of web page documents. •
The functionality of the website goes beyond merely viewing content.
• The customer can use the website to manipulate files or create new files. […]18
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In finding that Hootsuite does not use EC2 in a transparent way, the judge evidently failed to grasp what a virtual machine is, and how Hootsuite uses it. EC2 is just a piece of software, accessed over the internet, that mimics “bare-metal hardware”.19 The Linux operating system Hootsuite uses cannot tell the difference between running on EC2 and running on a physical computer. Each EC2 “instance” responds to the operating system’s instructions the exact same way a real computer would, and an application running on that operating system can ask the operating system to do all the same things it could ask the operating system to do on any computer. This is not much different than other types of “emulator” software—software that can pretend to be an iPhone, for example, so that developers can create and test iPhone applications on their Windows-based computer.20 That should, unquestionably, be software under the Hootsuite “opacity” test: the user interacts with the software by using it to run an iPhone app. If they purchased that software, the purchase would be taxable. It is true that Hootsuite has no direct control over how EC2 determines the answers to the operating system’s instructions, or how EC2 uses Amazon’s own physical hardware network to do it. But neither does the human user of a word processor when the user asks the word processor to save a file (the word processor responds to the request by asking the operating system to do it). Just because the how is opaque to the user does not mean that the entire application is opaque to the user. But Hootsuite interacts with EC2 in the sense that it can use it the same way it could use a physical server. Hootsuite has essentially bought access to a software program that it can use to run its own software programs—the Linux operating system and the software Hootsuite develops to run on Linux. Hootsuite’s chosen operating system interacts with the EC2 software millions—billions even—times a second to create inputs and outputs, in response to the requests from Hootsuite’s application software and Hootsuite’s customers. And Hootsuite’s human employees use EC2 all the time to set up and run virtual servers as needed. If Hootsuite had bought a physical server, it would have bought computer hardware—CPUs, memory, networking hardware—and software to run those pieces of hardware would have been incorporated into the product. The purchase would be taxable because the computer server is tangible personal property. EC2 simply removes the hardware from the equation, leaving only software. Since there is no longer any tangible personal property involved, the purchase should be taxed as a purchase of software instead.
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Incidental Provision of Tangible Personal Property, Software and/or Telecommunications I believe the judge adopted a narrow definition of “software program” out of concern that a broader definition would capture products that incorporate software, or services that utilize software to deliver the services: It is clear that the AWS support service purchased includes, to some degree, software. This is true for almost every purchase of electronic goods and services ranging from a refrigerator or an automobile to telehealth.21
The same concern is evident from the judge’s conclusion that the distinction between software and software programs exists in the legislation “to ensure consistency with respect to how products and services are treated for taxation purposes”.22 This concern exists because PST is, foundationally, a tax on products, mostly tangible ones, not services. But the concern is unwarranted because the legislature anticipated it by drafting the “incidental provision” exception. The definition of “sale” in s. 1 of the PSTA excludes the provision of tangible personal property, software or telecommunication service that is merely incidental to the provision of services in prescribed circumstances. Subsection 7(2) of the regulations fills in the details: … the provision of tangible personal property, software or a telecommunication service is merely incidental to a contract for the provision of services that are not subject to tax under the Act in the following circumstances: (i) the fundamental and overriding objective of the contract is the acquisition of the service and not the acquisition of the tangible personal property, software or telecommunication service, (ii) there is no separate purchase price for the tangible personal property, software or telecommunication services, and (iii) the total consideration payable for the service including the tangible personal property, software or telecommunication services provided, is the same as, or only marginally different from what would be the total consideration payable for the service if the tangible personal property, software or telecommunication service were not provided …23
The judge applied the exception in the alternative, finding that if AWS support was software that was used in British Columbia, it was incidental to the provision of computer engineering technical expertise. And while the service was a telecommunications service, it also fell within the exception. In applying the exception, the court found that most of the purchase price for AWS support was charged to compensate for the cost of providing computer engineer time; how the service was delivered (through a software
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chat feature, or over the phone, or by e-mail) was incidental.24 In support of this conclusion, the judge found: The cost of running and maintaining software is an insignificant part of the AWS support. The cost of the service arises from the technical staff hourly pay and associated services. The pricing for AWS support is based on the user’s monthly gross AWS usage, as opposed to the amount of time spent with AWS support.25
This is also how the EC2 and S3 issue in the case should have been analyzed—but primarily. AWS support, EC2 and S3, at a minimum, were all potentially taxable software. But if, as in the case of AWS support, there was clear evidence that the provision of software was incidental to the provision of some other service, then that should have supported an exemption from tax—not a narrow reading of the meaning of “software”. As with AWS support, the judge made an alternative finding that EC2 and S3, even if they were “software”, were only incidentally “software”.26 But the analysis is really whether Linux is software under the PSTA, and the judge concluded the provision of Linux is incidental to EC2/S3 services, as no separate price was charged for Linux—and Linux is free software in any event.27 The analysis skirts the question of whether EC2/S3 might be incidental software by assuming they are services and not software programs. There is no actual analysis of whether EC2/S3 might be incidentally software and no finding of what else might be provided besides EC2 and S3 or the relative importance of those other services. Territoriality – Was Anything Being Run “On or With an Electronic Device in British Columbia”? Finally, the judge rejected the idea that EC2 runs “on or with an electronic device ordinarily situated in British Columbia”, as required by s. 105 of the PSTA.28 The judge analyzed two pieces of software to determine if they run “on” a computer in British Columbia: the AWS console and the Linux operating system that runs on EC2. He concluded that the only software installed on a computer physically in British Columbia by the console program are web browser cache files,29 and that Linux runs on a virtual machine (EC2) and not on a computer in British Columbia.30 After concluding that a web browser cache file, by itself, is not a “software program”, and not “software”, the judge concluded that no software is run “on” a computer in British Columbia. The problem with this analysis is that the legislation does not say “on”. It says “on or with”. “On” and “with” do not mean the same thing. EC2 may not physically run on a Hootsuite computer in British Columba—but a Hootsuite computer in British Columbia interacts with EC2 all the time. Presum-
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ably, it is in British Columbia where a Hootsuite employee sends the programs that Hootsuite wants to run on EC2 to EC2 and British Columbia is where Hootsuite controls its virtual machine “instances” from. Further, the definition of software refers to a software program that is “delivered or accessed by any means”. Whether the software is physically installed on a computer in British Columbia, or simply interacted with from a computer in British Columbia over the internet, PST can apply. Under the ETA, the same transaction may have been a supply of a service, not software—and that’s OK Although not expressed in the decision,31 the judge may have wanted to interpret “software” in the PSTA similarly to intangible property under the Excise Tax Act (the “ETA”).32 At a very general level, it is desirable to interpret statutes in different jurisdictions with a similar subject matter similarly.33 But when you zoom in, in this case, the different design of the two taxes and the different wording of the relevant definitions mean that the ETA and its interpretation are not very persuasive authority in interpreting the PSTA’s definition of “software”. When the Canada Revenue Agency (“CRA”) analyzes whether something is “software” or a “service”, it does it differently than the court in Hootsuite, or British Columbia in its interpretation of “software” under the PSTA. Under the ETA, while both intangible property and services are subject to tax, sometimes it is necessary to distinguish them to determine the “place of supply”. With regard to electronic commerce, CRA analyzes whether the supply includes a more-than-incidental supply of a right like a licence or a copyright, in which case the supply is a supply of intangible property (i.e., software). If not, the supply is a service.34 CRA provides two relevant examples. In the first, the customer (e.g., Hootsuite) owns the licences to the software it intends to use, and contracts with a supplier (AWS) to host it by loading a copy onto the host’s servers (and for AWS to supply technical support). CRA would consider AWS’s supply a service in this example, because AWS does not supply any rights to use its own (or others’) software as part of the service. AWS “is essentially providing the space to store and run the software application on its equipment”.35 In the second example, the host (AWS) supplies both server space and “access to one or more software applications” hosted on AWS’s servers.36 In this example, because the host supplies rights to one or more copyrights as well, CRA considers the supply intangible personal property (software). Without details about whether Hootsuite obtained a licence to EC2 or S3, it is impossible to apply the CRA’s test based on the findings of fact in the case. But there are strong parallels to the example of “bare” website hosting:
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AWS did not own the copyright to Linux or the applications Hootsuite developed to run on Linux that were hosted on EC2.37 The same interpretation would not necessarily be appropriate under the PSTA, for the following reasons. First, and most importantly, when you ask whether software is “software” or a service under the PSTA, you are asking whether the transaction is taxed, ever, and not just where it should be taxed in specific cases like interprovincial or international supplies. The PSTA is not a modern, value-added tax. The basic framework is a mid-20th century tax on purchases of things: tangible personal property. Services and intangibles were originally excluded from the tax base, and the PSTA has only grafted tax onto some services (like telecommunications) and select intangibles (like software). On the other hand, the ETA is a value-added tax and largely indifferent to the distinction between property and services because both are supplies38 and potentially subject to tax. Second, and almost as importantly, “software” has its own definition in the PSTA and those words must be given meaning. In the ETA, there is no definition of software, and it is not explicitly deemed to be property or otherwise subject to tax; it is merely one more thing caught by the general definition of “property”39 and the idea of “intangible personal property”.40 Finally, it should not be a surprise if British Columbia chose to craft a broader definition of “software” than software that would be intangible personal property under the ETA—a broader definition broadens the PSTA’s tax base. Where something may be partly software and partly service, the legislature has an incentive to land on the software side of the scale. The PSTA is designed to raise revenue, after all. WILL SUPPORT SERVICES ALSO BE TAXED IN THE AMENDED LEGISLATION? The province did not appeal the decision—it simply announced its intention to retroactively amend the PSTA to “fix” it. Going forward, the safest thing to do for software-as-a-service users and providers in British Columbia is to continue to pay or collect PST, and follow British Columbia’s existing interpretation of what software is.41 But what about support services? The court’s conclusion that AWS support was only the “incidental” provision of telecommunications or software, and therefore a service exempt from tax, should be far less controversial than the conclusions about software. That aspect of the decision does not rely on a novel interpretation of the meaning of “software”, just a conclusion that the incidental provision exemption applied because of the relative contributions of the AWS computer engineers’ services versus the software used to communicate with Hootsuite.42
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Note, though, that even that aspect of the decision may trouble British Columbia, and the province may take steps to “correct” it. The bulletin announcing the forthcoming retroactive legislation indicates that: While all support services were not taxable [prior to the Hootsuite decision], if the support services included a non-incidental right to use software or a telecommunication service, the support service was considered taxable in whole or in part.43
Why consider taxing support services? Perhaps because the PSTA already taxes the provision of “related services”, but only related services provided to tangible personal property (excluding, notably, those provided to physical software).44 In some cases, therefore, the combined maintenance of hardware and software could attract tax under the related service provisions, because hardware maintenance is a related service that may be bundled with software maintenance and subject to PST.45 If virtual machines are analogized to the supply of bare-metal hardware, the province may wish to tax support services for that virtual machine the same way support services to physical machines are taxed. No directly equivalent provision to “related services” exists for intangible software taxed under Part 4 of the PSTA, because related services do not apply to “software” taxable under Part 4 (and physical software is also explicitly exempt from the tax on related services). However, the definition of “purchase price” for software includes charges for mandatory maintenance agreements: [A]ny charge relating to a warranty made with respect to the software, or any charge relating to the maintenance of or service to the software, that the purchaser must pay or agree to pay in order to obtain the software covered by the sale, whether or not those charges are shown separately on any record of the sale or billed separately.46
AWS support was billed as a percentage of Hootsuite’s total monthly AWS charges for the use of EC2 and S3, and not in relation to the actual time Hootsuite spent using AWS support services.47 It is not clear from the facts whether Hootsuite was required to purchase AWS support or not with EC2 and S3, and whether the support service may be caught as part of the “purchase price” for EC2 and S3 as a result. Currently, optional software maintenance agreements that only provide services as needed are not taxable.48 But given the close analogy between a virtual machine and physical hardware, watch to see if British Columbia decides to expand the scope of taxable software support services beyond mandatory maintenance agreements in relation to similar support services. If it does, though, that would arguably be a new interpretation and a new
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policy, and not just making the law consistent with how the PSTA was interpreted prior to the Hootsuite decision. Such a change would, arguably, be more unfair to taxpayers to implement retroactively. CONCLUSION Of course, the real issue is the PST’s narrow tax base. PST’s foundational premise is the taxation of the sale of tangible, physical goods; intangibles and select services have merely been grafted onto it. To maintain a distinction between services and software, the judge mistook software as a service as a service, and not software that should be subject to PST. Of course, if all services were subject to tax by default, like under the goods and services tax/harmonized sales tax (GST/HST), this controversy never would have arisen. The supposed distinction between software programs and computer architecture access services provided entirely through software—between virtual machines and real ones—would all be irrelevant. Hootsuite would have had little incentive to appeal either, since, unlike with PST, it could recover the tax through input tax credits.49 But that amendment is not coming to British Columbia any time soon. ENDNOTES 1. 2023 BCSC 358. 2. The use of the word “services” is not a prejudgment of whether PST should apply or not. 3. A third service, AWS Direct, was also at issue, but those aspects of the decision are not as consequential because they do not define “software”. The service was clearly telecommunications under the PSTA, and the issue was decided on the narrow basis of whether the service was in British Columbia or not. 4. Provincial Sales Tax Act, SBC 2012, c 35 [“PSTA”]. Unless otherwise stated, statutory references in this article are to the PSTA. The PSTA was enacted in 2012 after British Columbia’s brief flirtation with harmonized sales tax (“HST”). Rather than re-enact the Social Services Tax Act, RSBC 1996, c 431 [“SSTA”] that was in force before HST when it switched back, British Columbia used the opportunity to, somewhat, modernize the PST system, including new and more modern definitions of “software”. Earlier case law (Continental Commercial Systems Corporation (Telecheque Canada) v British Columbia (1982), 138 DLR (3d) 503, [1982] 5 WWR 340 (BCCA)) considered whether software was “tangible personal property” under the SSTA and concluded that it was not. As with Hootsuite, the decision prompted the government to overrule the courts and amend the legislation to deem software to be tangible personal property. See SSTA, s 1(1), “software”, “tangible personal property”. 5. British Columbia, Ministry of Finance, Provincial Sales Tax (PST) Notice: Notice to Providers and Pur-
chasers of Cloud Software and Services (Victoria: Ministry of Finance, June 2023) [“Cloud Software Notice”], online: <www2.gov.bc.ca/assets/gov/ taxes/sales-taxes/publications/notice-2023-005notice-to-providers-purchasers-cloud-softwareservices.pdf>. 6. There are several tax cases where the courts express a reluctance to set tax policy (see, for example, 65302 British Columbia Ltd v Canada, [1999] 3 SCR 804 at paras 50–65 and Canderel Ltd v Canada, [1998] 1 SCR 147 at paras 40–41). But if that was a concern, it is unexpressed in the Hootsuite decision. 7. The type of consumer software that used to be sold in a large, shrink-wrapped boxes with a physical disk inside, even if the software was delivered electronically and not physically. 8. Excluding AWS Direct Connect for the reasons described above, supra note 3. 9. See Hootsuite, supra note 1 at para 86 for the judge’s description. 10. Section 105 (see also ss 106 and 107, which impose the tax with slight modifications to capture some business purchases, and to pro-rate the tax where the software is partially used outside of British Columba). These provisions apply only to intangible software. When software comes on a physical medium like a CD, it is tangible personal property and regular PST applies. See s 104: “This Part [Taxes in Relation to Software] does not apply in relation to software that is subject to tax or is exempt from tax under Part 3 [Taxes in Relation to Tangible Personal
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Property].” This is a difference from the SSTA—all software, whether on a physical medium or not, was deemed “tangible personal property” under the old legislation. 11. SSTA, s 1(1) “software”. 12. Social Service Tax Act Regulations, BC Reg 84/58, s 22.4; see also Hootsuite, supra note 1 at para 49. 13. Hootsuite, supra note 1 at para 57. 14. Ibid at para 58. 15. Ibid at para 59. 16. Ibid at para 90. See also the test espoused at para 59: a software program is one that the purchaser uses as an application by interacting with the software to create an output based in part on those interactions with the program. 17. Ibid para 68. 18. British Columbia, Ministry of Finance, PST Bulletin 105: Software (Victoria: Ministry of Finance, issued March 2013, revised February 2022) [“Bulletin 105”], online: <www2.gov.bc.ca/assets/gov/taxes /sales-taxes/publications/pst-105-software.pdf>. 19. “HVM AMIs are presented with a fully virtualized set of hardware and boot by executing the master boot record of the root block device of your image. This virtualization type provides the ability to run an operating system directly on top of a virtual machine without any modification, as if it were run on the bare-metal hardware. The Amazon EC2 host system emulates some or all of the underlying hardware that is presented to the guest.” AWS, “AMI Virtualization Types” in Amazon Elastic Compute Cloud: User Guide for Linux Instances, online: <docs.aws. amazon.com/AWSEC2/latest/UserGuide/virtual ization_types.html>. 20. Microsoft’s Visual Studio 2022—programming software—allows for this, for example. See Microsoft, “Remote iOS Simulator for Windows”(2 February 2022), online: <learn.microsoft.com/en-us/dot net/maui/ios/remote-simulator>. 21. Hootsuite, supra note 1 at para 54. 22. Ibid at para 57. 23. Provincial Sales Tax Regulation, BC Reg 96/2013; see also Hootsuite, supra note 1 at paras 75–77. 24. Hootsuite, supra note 1 at paras 78–81. 25. Ibid at para 40. 26. Ibid at para 114(d). 27. Ibid at para 113. 28. Provinces are constitutionally limited to imposing direct taxes within the province, so PST applies only to purchasers in British Columbia of software “for use on or with an electronic device ordinarily situated in British Columbia”. See Constitution Act, 1867, 30 & 31 Vict, c 3, s 92(2): “In each Province the Legislature may exclusively make Laws in relation to … Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes” and Peter W Hogg, Constitutional Law of Canada, 5th ed (Scarborough: Thomson Carswell, 2007) at 864. 29. Hootsuite, supra note 1 at paras 61–64, 105–13.
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30. Ibid at para 110. 31. The decision makes no reference to the Excise Tax Act or the Canada Revenue Agency. 32. Excise Tax Act, RSC 1985, c E-15, as amended [“ETA”]. 33. Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis Canada, 2008), ch 14 at “Related Statue Law of Other Jurisdictions”. 34. GST/HST Technical Information Bulletin B-090, “GST/HST and Electronic Commerce” (July 2002). 35. Ibid at “Example 6: Application hosting – separate licence”. 36. Ibid at “Example 7: Application hosting – bundled contract”. 37. Hootsuite, supra note 1 at paras 91–93. 38. ETA, s 123(1) (sub verbo “supply”). 39. “‘Property’ means any property, whether real or personal, movable or immovable, tangible or intangible, corporeal or incorporeal, and includes a right or interest of any kind, a share and a chose in action, but does not include money”: ETA, s 123(1). 40. ETA, s 217 (sub verbo “imported taxable supply” (c) and (c.1)). 41. Bulletin 105, supra note 18. 42. See the text accompanying supra note 25. 43. Cloud Software Notice, supra note 5. 44. Section 119 and the following sections tax purchases of related services. Section 1 defines a related service as “any service provided to tangible personal property or any service provided to install tangible personal property” but, critically, specifically excludes services provided to software, or to install software, that is tangible personal property and not subject to tax as “software”. 45. See Bulletin 105, supra note 18 at pp 7 and following under “Services to Software”. 46. Section 15(2)(h). 47. Hootsuite, supra note 1 at para 15(d). 48. Bulletin 105, supra note 18 at 7ff. 49. The PSTA allows only limited exemptions for software purchased for use in a business: software that is processed, fabricated or manufactured into, attached or incorporated into: (1) other software for the purpose of retail sale; (2) a telecommunications service for the purpose of retail sale; or (3) goods for the purpose of retail sale or lease. The purchase is also exempt if the software is purchased for the sole purpose of reselling it. See Bulletin 105, supra note 18 at 15 under “Exemptions”. Under the ETA, input tax credits are widely available to registrants who in turn make taxable supplies using the inputs they paid GST/HST on, such that most businesses are indifferent to the GST/HST they pay because they will recover it eventually. Of course, I am not implying businesses are indifferent to the administrative burden of complying with the ETA or claiming input tax credits.
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THE NOTWITHSTANDING POWER: OUR CONSTITUTIONAL PROTECTION AGAINST JUDICIAL OVERREACH By D. Barry Kirkham, K.C.
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n the March 2023 issue of the Advocate, my distinguished former colleague at the bar, Darrell Roberts, K.C., adopts the strident advocacy of journalist Andrew Coyne, to the effect that should a province dare use the notwithstanding power in order to protect its legislative action from judicial review, Parliament should exercise the power of disallowance.1 Coyne is apoplectic at the thought that a provincial legislature should ever utilize the notwithstanding power. According to Coyne, the mere threat of such action creates a constitutional crisis in Canada because the courts are unable to protect against provincial violations of fundamental rights and freedoms. Coyne goes so far as to pontificate that the mere existence of the notwithstanding power means Canada is in the same state it would be if there was “no Charter at all”. And Roberts echoes the message by asserting that “a constitutional crisis is already here in the wrongful use and threatened wrongful use of the notwithstanding clause”. In their eyes, the only remedy is for Parliament to act as police officer, judge and jury over provincial legislatures and disallow any attempt to exercise a power expressly granted to them in the Constitution Act, 1982. I vehemently disagree. Quite simply put, the notwithstanding power is a part of the Constitution. The exercise of that power would be a valid exercise of a constitutional right and therefore would be perfectly consistent with the “constitutional order”. THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY What is at issue here is not some fine point of legal scholarship but rather the question of whether sovereignty in Canada is vested in our elected legislatures or the courts. First a review of some history. The basis for our democracy was the evolution of the common law since the time of Magna Carta, 1215. The barons therein obtained rights against the king’s claim to the divine right to absolute rule. It took hundreds of years and the Glorious Revolution of 1688
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to establish the overarching principle of parliamentary sovereignty. The bedrock foundation for the common law is that no court could ever disallow a statute duly enacted by Parliament. That is the constitutional principle that Canada inherited in 1867 and enjoyed until 1982. It remains the case in the United Kingdom, post withdrawal from the European Union. THE BARGAIN THAT ENABLED THE CONSTITUTION ACT, 1982 In 1982, Trudeau the Elder wanted to impose an American innovation on Canada—namely, the concept that the courts should be bestowed with the power to negate legislation if it infringed certain rights. These “rights” are vague. It was proposed to leave it to the courts alone to determine the content of any “right” and redefine that right from time to time as the courts in their absolute discretion may deem fit. The courts would have the awesome authority to strike down any statute enacted by any legislature that trampled on the courts’ view of what the right meant. Prior to 1982, there was much evidence of judicial abuse coming from the United States, most pronounced during the ascendency of the Warren Court in the 1970s. There was considerable resistance in Canada to Trudeau’s proposal. Many, including myself, argued at the time that it would be wrong to effect a massive transfer of power from our elected legislatures to our unelected judges. The contrary argument was that Canadian judges were “conservative” by nature and would never engage in the excesses of the American judiciary. (We have seen how that has worked out. The current Chief Justice of Canada proclaimed at a recent conference that his court was the “most progressive” in the western world. Indeed, his progressive court has now given constitutional status to values, such as diversity, inclusion and equity, which are not mentioned or suggested in the Charter, and uses those values in determining the validity of legislation.) As Roberts recounts, due to the resistance of several provinces, led by Premier Peter Lougheed of Alberta, Trudeau was not going to get his way. The provinces made it clear that their (essential) support for Trudeau’s Charter would come at a price—in particular, the Charter must include the notwithstanding clause. That clause was the security blanket that ultimately it would be the will of the people, as expressed by their elected representatives, that would prevail if an irreconcilable conflict developed between the courts and a legislative body on a given issue. Trudeau agreed, and it makes not the slightest difference that he did so with some distaste. Coyne/Roberts argue that should any provincial legislature have the audacity to exercise the notwithstanding power, Parliament should immediately disallow the provincial statute in issue. (They are apparently untrou-
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bled by the fact that Parliament can exercise the notwithstanding power at its sole prerogative.) What they are arguing is that Parliament today should override the carefully negotiated accord of 1982 and nullify the exercise of the power insisted upon by the provinces, without which the Constitution Act, 1982 would not have come into existence. THE DISALLOWANCE POWER Sir John A. Macdonald, who had an important role in drafting the Constitution Act, 1867, inserted the disallowance power, but it was intended to be utilized primarily to disallow provincial attempts to encroach on federal jurisdiction. Sir John insisted on a strong central government due to witnessing the horrors of the American Civil War, which arose in part because of the substantial powers, including the residual power, vested in the states. He did not envisage disallowing a provincial statute enacted within provincial jurisdiction simply because he thought it unwise. All the instances of the exercise of the disallowance power cited by Roberts fall into the category of encroachment on federal jurisdiction. As Roberts points out, the consensus of academics is that the disallowance power has fallen into desuetude. It was last used in 1943. Were the federal government to resurrect the long-abandoned disallowance power, that would create a constitutional crisis with unimaginable consequences. Quebec uses the notwithstanding power routinely to save what would otherwise be unconstitutional statutes. The authors seem oblivious to the explosive reaction that would undoubtedly occur in Quebec to the nullification of its statutes by Parliament. The future of Canada could be imperiled. WHO SHOULD DECIDE? The Coyne/Roberts narrative stems from the assumption that it is the courts and the courts alone who are and must forever be the ultimate authority in defining rights and liberties in Canada. Roberts even goes so far as to assert, “Since the subject areas of fundamental rights and freedoms in the Charter are not within the constitutional jurisdiction of the provinces, and never were, … the provinces cannot complain when the exercise of disallowance prevents them from enacting ultra vires legislation” (emphasis added). This is all wrong. First, “property and civil rights” is a constitutional head of power granted to the provinces in s. 92 of the Constitution Act, 1867. The provinces today enjoy the same right to enact and enforce human rights
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that they have always had. And they have always done so routinely, such as in various human rights legislation. Prior to 1982, both Parliament and the provinces had concurrent jurisdiction over human rights. The courts had no power to create or enforce any human rights inconsistent with provincial legislation.2 1982 brought a sea change, in transferring the power to the courts to quash any legislation (provincial or federal) that in the courts’ view offended their definition of a particular right. That certainly does not mean fundamental rights and freedoms “are not within the constitutional jurisdiction of the provinces”. It simply means the courts have the right to set aside actions of legislatures if they violate the courts’ interpretation of the content of any particular right mentioned in the Charter. But that judicial power was made subject to the clear right of any legislature or Parliament to invoke the notwithstanding power to trump the courts. Such legislation, by definition, is clearly intra vires. Reasonable people can reasonably disagree in philosophical terms on who should be the ultimate authority. My own view is it should be the elected representatives of the people. Judges have no particular expertise to determine social policy. The late Justice Antonin Scalia is eloquent and convincing in Scalia Speaks3 when he savages judges who let their own whims and opinions invade the sphere of constitutional interpretation. He applied the doctrine of originalism, whereby the constitution must be interpreted precisely as it was understood at the time the original text was enacted. The purpose of originalism is to preclude judges from infecting the constitution with their own personal biases. Originalism plays no part in Canadian legal analysis. So, as Scalia clearly points out, Canadian judges can interpret a “right” in any way they choose. They exercise this power regularly. We are left with an unelected committee of nine lawyers, or even a majority of five of the committee, sitting as the Supreme Court of Canada, as the final and absolute arbitrators of the meaning of the rights cited in the Constitution Act, 1982 … but for one saving grace. Our only protection from judicial absolutism is the notwithstanding clause. Any government that exercised the notwithstanding power would face enormous opposition, such as we recently saw when Premier Ford of Ontario threatened to invoke it. It would be a rare event (outside of Quebec), but it brings balance to our constitutional regime. One example of the need for the notwithstanding clause is with respect to legislation ordering strikers back to work or imposing a collective agree-
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ment. During the 20th century, such legislation was from time to time necessary to ensure union intransigence did not damage the public interest. However, in 2007, the Supreme Court of Canada, reversing itself, decided that the Charter right of assembly applied to collective bargaining.4 Thus, the courts assumed the power to determine if the process of collective bargaining was offended by such legislation, and if a court so decides, the legislation is struck down. Uncertainty and potential chaos ensue from such a regime, given that the final decision on any back-to-work statute could take years. If the strike by most of the federal civil service this past spring continued indefinitely, to the point of damaging the public interest, it is comforting that Parliament could have enacted a settlement, and declared it to be binding, “notwithstanding”. As this article is being published, Saskatchewan Premier Moe has announced that he intends to use the notwithstanding clause to protect his proposed legislation involving parental rights to be involved with respect to children transitioning. While this issue is very controversial, it is clearly in the political domain where it should be resolved. An issue with respect to the notwithstanding power is whether it can be used peremptorily, which is to say, in the original bill enacted by the legislature. Some have argued the power can be used only after the courts have stuck it down, seemingly after the full appeal process has been taken. This would take years. There is simply no basis in the wording of the Constitution Act, 1867 for this interpretation and no basis in logic to await the outcome of a long, drawn-out judicial process if the legislature is determined, regardless of the courts’ opinion, that its legislation will prevail. I welcome the notwithstanding power and think all governments should use it when circumstances warrant. This should not be a regular event (as it is in Quebec), but our elected representatives should be the ultimate authority to determine the public interest. ENDNOTES 1. Darrell W Roberts, KC, “Disallowance is the Paladin of the Rights and Freedoms in the Canadian Charter” (2023) 82 Advocate 197. [See also Darrell W Roberts, KC, ”Letter to the Editor” (2023) 82 Advocate 450 – Asst Ed.] 2. The Honourable Martin Taylor in “What’s It All About, Then, Gov?: From Magna Carta to the Notwithstanding Clause” (2015) 73 Advocate 827
suggests that there is a tenuous argument that some basic rights were beyond legislative review even at common law, but the authorities are mostly to the contrary. 3. Antonin Scalia, Scalia Speaks (Penguin Random House, 2017) at 188. 4. Health Services and Support - Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27.
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THE TRIALS OF THE VANCOUVER STREET ENDS By Trevor Williams
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his article chronicles a historical conflict between, on one side, the Union Steamship Company (“Union Steamships”), the City of Vancouver and the Province of British Columbia, and, on the other side, the Canadian Pacific Railway (“CPR”). Union Steamships benefitted through local and provincial governments’ efforts to defend public access, which the CPR sought to restrict, to Burrard Inlet. The sides’ basic conflict is centrally featured in two cases: the “Gore Avenue case” and a later suit, nicknamed the “Street Ends case”, that reached the Judicial Committee of the Privy Council (“JCPC”). This article contrasts the two cases and describes some of the personalities involved. Historian D.A. McGregor correctly characterized the second of these cases, the Street Ends case, as a long and costly lawsuit that cost the city the loss of all its street ends on Burrard Inlet.1 Union Steamships was a proud company that had maritime destinations at Bowen Island, Howe Sound, Vancouver Island and beyond. This company occupied the most developed of the street ends in the City of Vancouver at the time, at Carrall Street, which was then the pioneer thoroughfare of old Gastown, and used this street access to reach its waterfront dock facilities. At this access point the original town survey for Gastown showed Carrall Street extending across the foreshore to the low tide mark.2 The facilities that Union Steamships used had been constructed without asking the permission of the CPR. In the late 19th and early 20th centuries, Union Steamships was closely aligned with the City of Vancouver. The Vancouver City Solicitor at the time, Alfred Hamersley, was also a founding board member of Union Steamships. Captain Donald McPhaiden was another founding board member of Union Steamships. After the Gore Avenue case, McPhaiden became a longstanding and influential city politician and councillor from East Vancouver, and a constant fixture on the City Works Committee. For a time, Union Steamships and the City of Vancouver shared use of City Wharf, located at the foot of Carrall Street.
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The CPR’s role in the development of Vancouver and the adjacent waterfront began through the building of the railway. In 1871, British Columbia entered the Canadian Confederation, with construction of an inter-colonial railway being one of the terms of union. The CPR was incorporated in 1881 by the Canadian Pacific Railway Act for the purpose of constructing the railway. Upon first reaching upon the Pacific Slope of Canada, the railway was constructed as far as Port Moody, but later extended west to Coal Harbour.3 The CPR line was situated along the foreshore lying on the south side of Burrard Inlet, and right over top of the pre-existing docks and slips of Gastown. The CPR’s activities included marine as well as railway operations and it therefore viewed Union Steamships as a rival. The pioneering “Gore Avenue case” concerned the portion of the CPR line running east and west along the foreshore at or near the foot of Gore Avenue. Recognizing the city’s high nuisance maritime uses made its shared (with Union Steamships, as noted above) use of the Carrall Street location less than ideal, the city sought to build and use another facility— that is, another “street end” dock location—farther along the waterfront at Gore Avenue. Similar to the foot of Carrall Street, the CPR was not asked for permission before work commenced.4 However, unlike when the Carrall facility was originally built, this time the CPR lawyers reacted quickly. When the City of Vancouver began building an embankment to cross the railroad trestle and track to the shoreline to access a floating wharf of its own, the CPR applied for an injunction to prevent the city from doing so. The CPR first secured an interlocutory injunction to restrain the city from constructing the proposed infrastructure, and then returned to court to make this injunction permanent. Justice McCreight of the B.C. Supreme Court rejected the CPR’s attempt to do so. However, the railway succeeded on appeal before a three-judge panel of the B.C. Supreme Court, in a judgment written for the court by Chief Justice Begbie.5 That decision in favour of the CPR was subsequently upheld by the Supreme Court of Canada.6 Central to the CPR’s success in the Gore Avenue case were the substantial powers given to it under its incorporating statute,7 and in particular, as summarized by Chief Justice Begbie, “to take, use, and hold the foreshore of any navigable waters of the Dominion to such extent as shall be required by the Company for their railway and other works, saving the rights of the Crown”. This power “extend[ed] over all the undertaking in B. C., including of course the line and embankment across the foot of Gore Avenue.” The courts in the Gore Avenue case variously acknowledged that its incorporating statute gave the CPR substantial powers in relation to the great national mission under which the railway line was constructed, and
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noted that a further Dominion statute had ratified and confirmed the location of the CPR’s line, including at or near the foot of Gore Avenue.8 The courts were not inclined to allow the City of Vancouver or members of the public to interfere with this. The local government sought leave to take the Gore Avenue case to the JCPC. However, leave was denied, with one judge declaring that the “conduct of the City of Vancouver had been of an arbitrary character”.9 Historian Douglas C. Harris believes that, although the City of Vancouver lost the Gore Avenue case, “access to the waterfront, much of it CPR controlled, remained disputed”.10 Indeed, the question of access over the CPR railway tracks would be tested again in the courts about a decade later, when the CPR began occasionally barricading Carrall Street midblock from Water Street. Concurrently, the CPR legal team served Union Steamships with a “writ of eviction”, in which the CPR demanded that Union Steamships vacate its home wharf property; this also had the effect of blocking Union Steamships’ access.11 Against this backdrop, the Attorney General of British Columbia launched the Street Ends case, “on the relation of the city of Vancouver”, and in that case sought a declaration that the public had a right of access to the waters of Vancouver harbour through certain streets in Gastown. At the time, the CPR was constructing yards and wharves on the foreshore and bed of the harbour for use in the operation of its railway and the accommodation of its shipping. The statement of claim alleged that the public was entitled to certain rights of way over the foreshore of the sea in the city, and that the CPR had so constructed its railway and works upon the foreshore as to obstruct those old public rights of way. The wisdom of bringing the matter to court again was much debated, given the City of Vancouver’s earlier loss in the Gore Avenue case. Indeed, by 1902, then Vancouver City Solicitor Alfred Hamersley, who had conducted the Gore Avenue case on the city’s behalf, was no longer a believer in the pursuit of water access rights in this manner. Hamersley labeled the new litigation as a “doubtful lawsuit” and disavowed involvement in the forthcoming case.12 However, others were more enthusiastic, with anti-CPR sentiment stoked each time the railway placed barricades over the feet of the Gastown streets; those barricades inspired voters to deliver a new generation of politicians concerned with protecting Vancouver’s rights to the street ends.13 Representing the Attorney General of British Columbia in this new litigation—though billing the City of Vancouver—was none other than the Attorney General himself, Charles Wilson, K.C. He was the motivating spirit at all stages of the new litigation. Wilson arrived in British Columbia in 1862 during the gold rush and spent his first years in the Big Bend area north of
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Revelstoke, working for placer mining operations and different claims. He relocated to Barkerville, where he became editor of the Cariboo Sentinel. There, he nurtured his love for the law, and pursued his studies part-time starting in 1880. He later articled under Theodore Davies, and was licensed to practise law in 1894. By the early 1900s his firm, Wilson, Senkler & Bloomfield, was powerful and politically connected, and he was the senior partner. He ran for elected office several times between 1883 and 1906. Under the Tory banner, he was elected to the provincial legislature as the MLA from East Vancouver, then was appointed to the Cabinet of Premier Richard McBride as Attorney General from 1903 to 1906.14 The CPR predictably denied the existence of the alleged public rights of way that were raised against it in the litigation, while others viewed the entire discussion as a civic pretext for the City of Vancouver to extend its streets for the purpose of expropriating parts of the Burrard Inlet foreshore.15 Representing the CPR in the new litigation was Edward Pease Davis, K.C., who founded the firm Davis Marshall MacNeill (later Davis & Co., now part of DLA Piper) in 1892. Like Wilson’s firm, it catered to establishment and A-list clients. Despite his role on behalf of CPR, Davis was not unsympathetic to the City of Vancouver’s desire for waterfront development, in his later years boasting how “he could have won the street-ends for the city, except that he was counsel for the CPR”.16 The new litigation came before Justice Lyman Poore Duff of the B.C. Supreme Court in 1904, during the 31-month period in which he sat on that court before heading to the Supreme Court of Canada in 1908.17 That Duff presided over this litigation is not particularly noted by his various biographers. Indeed, historian David Ricardo Williams believes Duff did not serve long enough on the B.C. Supreme Court to make any real impact.18 Justice Duff presided over a five-day trial of the matter during June and July 1904. The witnesses included many early Vancouver residents, called on to describe the Gastown waterfront before the arrival of the CPR. The witnesses called by Wilson included pioneers such as Thomas McGuigan, Andy Linton, William Watts, George Marchant, James Clendenning, William George and Francis Martin. For the CPR, Davis countered by also using pioneers as witnesses, calling on Murray Thain, William Soule, Charles Worsnop, Joseph Manion, Richard Marpole, James Finlaison and finally Henry Cambie.19 With so many Gastown pioneers on the witness stand, the litigation resembled some local history carnival—a large oral history project conducted by lawyers, instead of historians. Wilson even used several large photographs as courtroom aides and 47 archival documents as exhibits.20 One day, the entire courtroom went for a visit to the Gastown waterfront.
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In a judgment issued later in July 1904, in favour of the CPR, Justice Duff examined several questions to determine whether the declaration sought by the Attorney General of British Columbia should be granted. The first question was whether the foreshore at the time of the railway’s construction was subject to a public right of passage to and from the waters of the harbour at the ends of the streets referred to. The judge concluded that these streets were at that time public highways extending to the low water mark, and moreover that the public right of passage over these highways to and from the waters of the harbour had existed at the time of the admission of British Columbia into Canada. Second, the judge considered whether these public rights had been extinguished or suspended by reason of the construction of the CPR’s works. Justice Duff found, as a fact, that the works at issue were necessary to meet CPR’s reasonable requirements in respect of terminal facilities. He further found that the exercise of the public rights of passage at the places in question was incompatible with the effective use of the railway and other works at these places for the purposes for which they were required. Again, the judge pointed to the CPR’s incorporating statute as “authoriz[ing] the construction and use of the works for the purposes of the railway and as such user requires the exclusive occupation of the locus in which they are placed, I think the public rights referred to, if not extinguished, have become suspended during the period of use for such purposes.” Justice Duff noted in this portion of his analysis the assumed legislative competence of the Dominion Parliament to authorize the appropriation of the foreshore and bed of the harbour, at the places referred to, for the purposes of the CPR’s railway. The judge noted there was no occasion in this case to consider whether the Dominion Parliament had power to authorize the appropriation specifically of provincial Crown lands for the purpose of a railway connecting two or more provinces, given that he was of the view that the lands in question here passed to the Dominion under s. 108 of what is now the Constitution Act, 1867. In this regard, he found as a fact that “at the time of the admission of British Columbia into Canada, that part of Burrard Inlet between the First and Second Narrows was a public harbour, and that the parts of the foreshore subject to the public rights of passage referred to were in use as, and were in fact part of the harbour; as was the whole of the foreshore adjoining the townsite of Granville.” An appeal was taken from Justice Duff’s judgment. The hearing of the appeal proceeded on January 17–19, 1905 before the full court of the B.C. Supreme Court. Those judges unanimously dismissed the province’s appeal from Justice Duff’s decision. Chief Justice Gordon Hunter noted that it was
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not possible to disturb Justice Duff’s finding that “the locus in quo formed part of the harbour at the time of Union”, but more broadly the court examined other grounds on which to support the decision. Chief Justice Hunter and Justice Archer Martin supplied separate rulings that reinforced the original decision.21 Arrangements began to take the case to the JCPC in London. By choosing to go to Whitehall over the Canadian Supreme Court, Wilson may have sought to gather the same group of judges responsible for what he considered to be a favourable recent decision: months earlier, three of the four JCPC judges who ultimately heard his appeal had participated in another ruling, City of Toronto v. Bell Telephone, which Wilson referenced heavily during his presentations before the courts in Victoria and Whitehall.22 The JCPC heard the appeal on December 13–15, 1905. The most active judge on the panel was Lord Horace Davey, while Lord Edward MacNaughton, Sir Ford North and Sir Arthur Wilson mainly listened to the proceedings. On behalf of the CPR, Edward Davis, K.C., was joined by Sir Robert Findlay and S.A.T. Rowlett, while Charles Wilson was joined by British lawyer C.E. Russell. Wilson was the primary speaker, while Russell pointed to what he argued to be similar case law. Davis spoke relatively briefly and, like Wilson, focused on re-reading the testimony at trial. When Wilson returned to Canada in January 1906 after arguing the appeal, he appeared pessimistic about his chances of winning the case,23 and this was rightly so, as the JCPC dismissed the appeal.24 As a result, the at-grade pedestrian crossing at Carrall Street was finally closed several years after the litigation; thenceforth travelers crossed the tracks at Columbia Street, then walked along the CPR outer trestle to reach Union wharf. In the JCPC’s judgment, Sir Arthur Wilson noted that Duff had found that the rights of way contended for existed both when British Columbia joined the Confederation and when the CPR, by the construction of its works, interrupted the free access to the sea. Sir Arthur noted further that “[t]he learned judges of the Full Court [of the B.C. Supreme Court] did not dissent from this finding, rightly addressing their minds to the more important general questions arising in the case”. The JCPC “follow[ed] a similar course”. Sir Arthur noted that the JCPC accepted that public rights of way existed as found, and it was not open to question that those rights of way had been interrupted. Meanwhile, the CPR pointed to its incorporating statute to justify what it had done. The right of the Dominion Parliament to legislate in this regard was based in argument on two distinct grounds. First was the inclusion of public harbours as among the property of Canada under s. 108 of the Constitution
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Act, 1867, which “certainly empowers the Dominion Parliament to legislate for any land which forms part of a public harbour”. In this regard, “the question whether the foreshore at the place in question formed part of the harbour was in the present case tried as a question of fact”, and while the evidence as of 1871 “was somewhat scanty, … it was perhaps as good as could reasonably be expected with respect to a time so far back, and a time when the harbour was in so early a stage of its commercial development.” Sir Arthur observed that “[t]he evidence satisfied the learned trial Judge, and the Full Court agreed with him. Their Lordships see no reason to dissent from the conclusion thus arrived at.” Second and in any event, ss. 91–92 of the Constitution Act, 1867 “secures to the Dominion Parliament exclusive legislative authority in respect of lines of stream or other ships, railways, canals, telegraphs, and other works and undertakings connecting any province with any other or others of the provinces, or extending beyond the limits of the province”, and Sir Arthur noted that this description “clearly applies” to the CPR. In this regard, “the Dominion Parliament had full power, if it thought fit, to authorize the use of provincial Crown lands by the company for the purposes of this railway”. It was clear that “the power given to the company to appropriate the foreshore for the purposes of their railway of necessity includes the right to obstruct any rights of passage previously existing across that foreshore”. News of the loss before the JCPC reached British Columbia on February 27, 1906. Two weeks later, Wilson resigned his position as Attorney General. Newspapers narrate how “it appears Charles Wilson handed in his resignation almost two weeks ago”, which suggests he resigned around the time of first hearing of the JCPC ruling, but he was permitted to wait until the end of the legislative session before the resignation took effect.25 After resigning, Wilson managed to evade inquiries by newspapers for months as to why he was not the Attorney General anymore.26 Newspapers started to proffer their own reasons why he had resigned, and Wilson’s disagreement with his own government over Canada National Railway at Caien Island became the consensus reason.27 However, the failure of the litigation was also viewed at that time as one of the unofficial reasons. One newspaper suggested how the “Street ends suit failure cooked his official goose”, and that Wilson being away in England for months re-fighting an old losing court battle, where everybody billed the City of Vancouver afterward, was enough for his resignation to be requested.28 Comparing this pair of Vancouver waterfront-related suits shows the case that ultimately reached the JCPC—the Street Ends case—to be larger, more articulated, more influential and more expensive than the Gore Avenue
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case. The general inability of civic historians to describe the second case well or at all in their work tends to inflate the importance of the Gore Avenue case, despite limited references to it in subsequent court judgments. The litigation described in this article is poorly understood in part because, on Wilson first taking up the case, his firm collected all the street ends-related files that the City of Vancouver staff or else City Solicitor Hamersley held by that point.29 Wilson’s team then left these records and notes overseas after arguing the appeal before the JCPC. Further, many records relating to the litigation until recently bore archival restrictions against their viewing. Between archival restrictions and abandoned records, our popular written civic histories have dedicated only slender sentences of scanty content to describing the loss of these Vancouver street ends. ENDNOTES 1. DA McGregor, “Adventures of Vancouver Newspapers: 1892 – 1926” (1946) 10:2 British Columbia Historical Quarterly at 114. 2. Trevor Williams, “Foot of Carrall: The Historical Maritime Gateway of Gastown” (2021) 31:4 The Northern Mariner / le Marin Nord at 409–30 [Williams, “Foot of Carrall”]. 3. Trevor Williams, “Displeasurecraft: Hunger and Enmity on the SS Yosemite” (2021) 54:2 British Columbia History at 28–31. 4. For a description of the CPR’s efforts to stop the construction of City Wharf at Carrall Street, see Williams, “Foot of Carrall”, supra note 2 at 416–21. 5. 1892 CarswellBC 54. 6. 1894 CarswellBC 6. 7. SC 1881, c 1, s 18A. 8. SC 1885, c 56, s 5. 9. “Arguments and Judgement, JCPC #47 (1905)”, Library and Archives Canada, RG66, Acc 199394/555, Vol 8 at 58 [JCPC #47]. This ending to the Gore Avenue case is described by Charles Wilson. 10. Douglas C Harris, “A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver” in Canadian Property Law Stories (Toronto: Osgoode Society and Irwin Law, 2012) at 459. 11. “Street End Action Begun”, Vancouver Province (23 October 1902) 1. 12. “Street Ends Case”, Vancouver Daily World (14 February 1905) 7. 13. The administrations of three consecutive Vancouver Mayors—Thomas Neelands, William McGuigan and Fredrick Buscombe—publicly supported court action on the Vancouver street ends: “Dr McGuigan’s Platform”, Vancouver Province (9 December 1903) 8; “Tried to Speak in Three Places”, Vancouver Daily World (10 January 1905) 7; “Wind up of the Campaign”, Vancouver Daily World (13 January 1909) 9.
14. BJC Ferguson, “Attorneys-General British Columbia” (Victoria: Self, 1982) at 20, 21. 15. Phyllis Veazey, “John Hendry and the Vancouver, Westminster and Yukon Railway: It Would Put Us on Easy Street” (1983) in BC Studies 59: Autumn at 49. 16. “Foreshore Law”, Vancouver Sun (8 March 1944) 4. 17. 1904 CarswellBC 101. 18. David Ricardo Williams, Duff; A Life in Law (Vancouver: University of British Columbia, 1984) at 6. 19. “The Street Ends Case, 1905”, City of Vancouver Archives, File AM54-S23-2. 20. Vancouver Supreme Court Minutebook, British Columbia Archives, GR – 1918, Case 305/02, at 140–44, lists the informants, archival letters and images included in the Street Ends case. 21. Glenbow Western Research Collection, Canadian Pacific Railway Land Settlement and Development fonds, Box 220, File 2133 “Legal dispute with Vancouver [ca 1905]”. 22. JCPC #47, supra note 9 at 56, 100, 101; City of Toronto v Bell Telephone, 1904 UKPC 71. 23. “Afraid We Will Lose Says Wilson”, Vancouver Daily World (5 January 1906) 8. 24. 1906 CarswellBC 109. 25. “Hon. Mr. Wilson Has Resigned”, Vancouver Province (15 March 1906) 1; “No Public Right of Access to Waterfront” Vancouver Daily World (27 February 1906) 1. 26. “Hon. Mr. Wilson Has Resigned”, supra note 25. 27. Ferguson, supra note 14 at 20–21. 28. “Untitled”, Vancouver Daily World (28 November 1906) 4. 29. “Why Am I Dismissed? Asks Hamersley”, Vancouver Province (6 February 1905) 1; “Street Ends Case” Vancouver Daily World (14 February 1905) 7.
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ONLINE MEDIATION – THE BENEFITS By David A. Paul, K.C.
O
nline mediation has become increasingly popular since the COVID-19 pandemic hit. With social distancing measures in place, including courthouse closures, lawyers and their clients had to explore new ways to resolve disputes safely and efficiently without the need for in-person meetings. Fortunately, technology has made it possible for mediation to take place remotely. As the world emerged from the pandemic, many wondered if online mediations would continue to be popular. The answer is a resounding “yes”. The benefits of online mediation remain the same in a post-pandemic world. Even as social distancing measures are relaxed, many people and their counsel prefer online mediation’s accessibility, convenience, effectiveness, efficiency, flexibility and cost savings. BENEFITS OF ONLINE MEDIATION The many benefits of online mediation include the following: Online mediation is less intimidating Not surprisingly, participants in online mediation often feel more comfortable speaking candidly over video conferencing software, making for healthier negotiation and a more satisfying resolution. One explanation may be that online mediation allows the parties to participate from an environment of their choice, which can help put them at ease. Another reason may be that many individuals find online mediation less intimidating than traditional in-person mediation, as technology tends to make the process more familiar and less daunting. This can be especially true for individuals who may feel nervous or anxious in face-to-face situations. Online mediation requires minimal computer expertise from the participants Potential participants may be concerned about their technical abilities. However, it is important to remember that the mediator controls the process and will guide the participants through any necessary technical steps. Consequently, participants do not need technical expertise to engage in online mediation successfully. This allows parties to focus entirely on the issues in dispute while working toward a resolution.
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Online mediation is more convenient One of the key benefits of online mediation is convenience. Participants can connect from anywhere worldwide if they have a reliable internet connection. This eliminates the need for travel and saves time and money. Document sharing and collaboration In today’s digital age, sharing and collaborating on documents during an online mediation have become increasingly popular. During an online mediation, parties can readily share documents supporting their claims, including evidence, spreadsheets and case law. Not only does this make the process of sharing documents more efficient, but it can also improve the overall outcome of the mediation. Sharing and reviewing documents online during a mediation can save time. Rather than bringing boxes of documents to mediation or sending multiple documents back and forth via e-mail, all parties can share, review, discuss and work on the same document simultaneously, thereby speeding up the process and reducing the risk of errors or miscommunications. Sharing and collaborating on documents can also improve transparency and trust between all parties. Allowing everyone access to the same information helps foster a willingness for the parties to work together towards a common goal. This can improve relationships and make future negotiations more straightforward. Another significant advantage of sharing and collaborating on documents during an online mediation is that this allows for multiple perspectives and ideas to be brought to the table, once the parties have reached a consensus and begin working on formalizing the settlement. With everyone involved in the mediation able to see and work on the same document in real time, misunderstandings and miscommunications can be reduced. This can lead to more creative and practical solutions that may not have been thought of otherwise and improve the overall outcome of the mediation. This collaborative approach also helps to ensure that both parties are satisfied with the final agreement. Once the agreement has been drafted, the mediator can circulate it to the parties for their digital signature. The completed agreement provides a tangible and satisfying outcome for all involved. Rather than leaving mediation without a clear resolution, the parties can move forward with a sense of relief and closure. Online mediation allows for more flexible scheduling Traditional in-person mediation sessions can be challenging to coordinate, especially if all parties have busy schedules. With the rise of online mediation, scheduling conflicts are becoming far less of an issue. Online media-
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tion also allows for more flexible scheduling, as participants can choose the best time for them. Instead of scheduling a time for everyone to meet in person, participants can log on to the mediation platform from their own devices. This means mediation sessions can occur virtually at any convenient time or place for the parties involved. Online mediation allows for more accessibility With the advent of technology, online mediation provides a more accessible option. People are now able to connect with others around the world without having to leave the comfort of their own homes. This has made mediation more accessible to people who are physically challenged, live in remote areas or have busy schedules. This allows for a more inclusive process and ensures that all parties can participate in the mediation. Online mediation provides a safe environment In-person mediations can be emotionally charged and tense, leading to uncomfortable and unpleasant situations. Online mediation allows individuals to participate from the comfort of their homes, making them feel more at ease and less vulnerable. Online mediation removes the need for face-toface interaction, which can be intimidating for some people. Online also provides a safe environment for family members who may have experienced violence. Online mediation is cost-effective Online mediations can be more cost-effective than in-person mediations. Without the need for travel by participants, their counsel, or the mediator, parties can save money on transportation, lodging and meals. Additionally, online mediation can be less time-consuming, reducing the overall cost of the mediation. Online mediations allow counsel to work from their own office Online mediations allow lawyers to work in an environment where they can access their support staff, firm infrastructure and legal precedents, which can be very beneficial in finalizing any agreement reached during the mediation process. Working from their office means that legal counsel can access any information they need quickly and efficiently. They can also communicate with their clients, colleagues, law students or support staff more efficiently, which can help streamline the mediation process. This can be helpful during the mediation process, as it allows legal counsel to focus on the negotiations. This can also lead to a more efficient and effective outcome for all parties involved.
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Online mediation allows participants to choose from a wider pool of mediators and legal counsel As online mediation continues to gain popularity, participants are discovering a new benefit: the ability to choose from a wider pool of mediators and legal counsel. In the past, individuals were often limited to hiring professionals in their own community. With online mediation, geography is no longer a barrier. This expanded choice can lead to better outcomes, as individuals can find the best professionals for their specific needs. It can also help to level the playing field, as individuals who may have been disadvantaged in their local community can now access a broader range of professionals. CHALLENGES TO ONLINE MEDIATION Of course, there are still some challenges associated with online mediation. Technical issues can arise, and some argue that reading body language and facial expressions can be more difficult with video conferencing software. However, it seems clear that online mediation is here to stay and continue to provide people with a safe and effective way to resolve disputes in years to come. CONCLUSION Online mediation has revolutionized how people solve disputes and is worth considering for those considering mediation. Online mediation offers many benefits over traditional in-person mediation. It is convenient, accessible, safe and cost-effective, and it allows access to a broader range of professionals. As technology advances and the world becomes more connected, online mediation will only become more prevalent in resolving conflicts.
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SYLVIE AND THE WASP* By Leslie Palleson
S
ylvie has sat here twenty minutes drinking her ice water, waiting for Margaret, who insists on eating at the Law Courts Inn, because Margaret has lots to do between sessions and needs to talk to Sylvie and doesn’t want to waste the time walking to some other place. And like always, Margaret has taken a call from another client and left Sylvie surrounded by tables of overdressed overvolumed lawyers who seem ridiculously content with their lives. To make matters worse, the complimentary bowl of olives is attracting wasps that buzz about unchecked because all the doors are open to the veranda. One has landed on the table and is handling some kind of crumb in its little black hands. Sylvie takes her fist, pounds the thing into the linen. She doesn’t even know why she wants to talk to Margaret, all Margaret ever does is ream her out, and always has, even in their first meeting, when Sylvie explained how the relationship had ended. How she had thrown Glen’s clothes out on the lawn when she found out about the affair, all his Harry Rosen suits mixed in with his bike shorts, Grand Fondo jerseys, running shoes, skis. Then his Hemmingway book collection, triathalon trophies, acoustic guitar, photo albums of his family (all of whom she hates), topped with a quick shake of his trinkets drawer and his passport. It created quite a heap under the Japanese Maple. So tempting to light it on fire, but it was a scorching hot day in August, the trees crackled dry leaves, the lawn a crispy brown. A voice of reason sounded in her head. He’ll use it in court against you if you burn down the ’hood. No time to change the locks but she’d turned the dead bolt and leaned a chair against the knob. Of course, she had to open the door after school to let the kids in, who wanted to know why Dad’s stuff was all on the front lawn, so she told them. “Dad’s moving. He’s fallen in love with someone else. It’s okay. He’ll still be your Dad. He’s just not living here anymore.”
* “Sylvie and the Wasp” is the third place winner of the Advocate’s 2023 Short Fiction Competition.
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“But where’s he going to live?” Ella had burst into tears, “How will he finish reading Harry Potter to me every night if he doesn’t live here? We’re doing the whole series!” “Don’t worry sweetie. We’ll work it out.” Sylvie flicked the deadbolt, wedged the chair back under the knob, while Glen’s phone buzzed in the pocket of her shorts. The phone he’d forgotten. The phone that had ring-alinged earlier with a message from someone named Laura: Loved last night, tomorrow same time? Don’t tire yourself out beforehand, followed by a series of heart emojis. The night before, Glen had told her he’d worked late at the office. Big case. Fell asleep at his desk, he’d said, when he dropped by in the morning to change. Of course, no one’s on her side. Even her best friend, Carol, who has kids the exact same ages as her own, who stands with her in the rain at soccer games, says she should have just run to the backyard and whacked a tree with a stick. And now Glen has strolled into the Law Courts Inn in his cambric Harry Rosen pants that Ella salvaged from under the maple. At his side trots his fancy lawyer, Barbie Barb, with her cascading blonde hair, enormous breasts, high heels, makeup, looking like the cover of Chatelaine. Unfortunately, not at all stupid, turning the stereotype of sexy hot babe on its head. All morning she’s taken Sylvie’s words and twisted them on her snake tongue, slid them back out at Sylvie in cross, leaving Sylvie flummoxed and fighting for her life. Just like Glen does. What a surprise that he chose Barbie Barb to represent him. Glen’s Chesire cat eyes meet hers across the room where he flicks his linen napkin over those pants he wore just to bug her. His eyes say, I’m winning and you know it. Sylvie stares him down. Like hell you are! He turns to Barbie Barb and laughs. She can tell they’re having an affair by the way he sits back, grins. When they’re alone, this is where Barbie Barb jumps him, thrusts her honking breasts in his face. No way she was born with those. “Madam?” Sylvie starts, looks up. Christ, how long has the waiter been standing there, napkin draped over his forearm as though he thinks he’s in New York, not some lawyer dive pretending to be posh on the West Coast. “The wasp is only half dead, madam.” Sylvie looks to the wasp at the base of her water glass. The legs are quivering, as though they are trying to find traction in the humid August air. And so are its diaphanous wings, fluttering, strangely intact despite the force of her fist.
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“If madam prefers, I can remove it.” “No thank you.” He shifts his feet. “It’s really no trouble.” “I said no.” “The wasp is suffering, madam.” His ridiculous loopy mustache sways as he does. What is this life, to be a middle-aged man catering to the needs of wasps? “We’re all suffering.” The wasp’s little yellow and black body shifts. Maybe it’s going to recover, fly over to Glen’s table, take a nip out of Barbie Barb. Right on the neck. A good reason to keep the wasp alive. Possibly, Barbie Barb is allergic to wasps, will have a reaction right in the courtroom. Topple on those heels, end up lying splayed out on the floor, her cascading hair spread out, like when he fucks her, and he’ll rush over and it will be obvious to everyone he’s fucking his lawyer, and the judge will finally understand what she, Sylvie, has had to put up with. The waiter mutters some perfunctory phrase and leaves just as Margaret finally thumps her bulging body, overflowing in her garish red suit, into the seat across from Sylvie. Bold, brash, Sylvie hired her thinking she’d stomp Glen into the ground, but it turns out she’s perfectly civil to Glen. It’s Sylvie she treats like shit. “We got to talk about what’s going on in there.” Margaret’s jowls shake and her cheeks puff up pink like they always do when she’s mad at Sylvie, which seems to be most of the time. “She twists my words.” “What are the three rules?” “I have to explain myself!” Margaret glowers at Sylvie. Sylvie sighs. “Be respectful, be truthful, and talk as little as possible.” “I told you it was going to be hell. Barb is a master at cross. They offered a very generous settlement. You’re not going to get all the parenting time and you’re not getting high end spousal for life. You’re only forty-one. You’ve got a business degree.” “It’s just that he’s so slick.” She can see him, sliding the butter knife over his bread, saying something that makes his lawyer ring out with laughter, that kind of dainty girl laughter, like she’s a teenager on a first date. “The judge needs to know what’s going on.” “Also, you’ve got to stop posting stuff about him on Facebook. They’ll use it to make you look bad. They already have.” “He’s turned everyone against me. I’ve got to make people understand.”
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“And Twitter. The comment about him dressing up as a sex-crazed fish.” “It’s a tweet. The truth doesn’t matter.” A man has come into the restaurant with a stroller and a toddler and is heading to Glen’s table. Handsome, young, like a movie star posing as a stay-at-home Dad, like Ken, and Sylvie realizes this Ken Doll is Barbie Barb’s husband, because he’s handing her the baby and a scarf and suddenly Barbie Barb is looking kind of shy, like some kind of Madonna figure, draping that scarf over her breasts, peeking over her shoulder to see who’s watching. Glen is waving his hand, indicating no problem, no problem, and Ken Doll and Glen are chatting as Barbie Barb nurses her baby, now bringing to mind an Earth Goddess who walks through forests barefoot with those cascading locks. Surely, they’re extenders, no one can be that perfectly gorgeous. Barbie Barb’s shoulders twitch underneath her pale blue suit. Sylvie winces. The chaffing, she remembers. Maybe this baby bites like Ella used to. Nipples already in pain from being stretched so far, from being sucked so much, and then, chomp. No wonder she has those huge breasts, like Sylvie had, twenty-pound basketballs attached to her chest. She’s probably worried they’re going to leak all over her when she’s in court. “It’s not going well, Sylvie. At this rate you’ll be lucky to get 50/50.” Ken Doll stands behind Barbie Barb, wrapping one arm around her, the other holding the toddler, the little Barbie in training, who sports a pretty summer dress and has hair exactly like her mother. Okay, so maybe not extenders. Glen used to do the same thing, bring her the baby to nurse when she was taking those courses on holistic nutrition, which she insisted she would tie into her business degree but never did. Now Glen has stepped back from his table. He holds up a phone to take a picture of the happy little family. “What is that thing at the base of your water glass?” Margaret scrunches up her face and leans forward to get a better look. “Oh my God. It’s a wasp. Did you try to kill it? It’s not dead.” The wasp’s legs are still waving. It’ll never go anywhere on its back. Sylvie picks up her knife, wedges it under the wasp and turns it over. The legs catch but the body only quivers. “It’s too late for that wasp,” Margaret says. “You’re just going to have to kill it.” Sylvie watches the yellow and black body, jittering, going nowhere. She could have just brushed the wasp away and let it go off and live its wasp life. But at this point, there is nothing to do to save it. She picks up her water glass and brings it down on the wasp, feels it crunch into the linen. It feels
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so good she does it again, rising from her seat, putting her weight into it. She grunts. “I think you’ve got it.” Sylvie lifts the small squat vessel. The wasp still looks like a wasp. She hits down with the heavy glass base, perfect for wasp killing, like a hammer. She rolls the glass in her hand and looks over to Glen. Now Ken Doll has taken the baby and is tucking the satiated infant into the stroller. The toddler has climbed onto her mother’s lap. Leigham used to do that too, taking claim of Sylvie once Ella was out of the way. Glen is taking another picture. Sylvie imagines the glass smashing into his head and him crashing to the ground. Hitting him, again, again. Two years he’d deceived her. The waiter with the loopy mustache is approaching, his brow knit. He wanted the wasp dead, and now she’s done it, and he’s upset? “It’s definitely dead now, madam.” Sylvie lifts the glass, revealing nothing but a teensy dark smudge highlighted with bits of yellow. The linen will have to be washed but that’s hardly her problem. The Law Courts Inn should think about wasps when it opens the windows, deserves the consequences of soiled linen. The waiter takes the cloth draped over his arm and makes a show of rubbing the wasp out of existence, grimacing, as though the death of the wasp is unfortunate. By the time he leaves there is only a faint trace of it left. “Sit, Sylvie.” Across the table, Margaret is staring her down. Sylvie realizes the surrounding tables are looking at her. She sets the glass over the wasp smudge and takes her seat. “You hired me to give you advice. This is my advice.” Margaret reaches into her bag and takes some papers out and slides them across the table. “You could at least read it.” Sylvie picks up the papers. An agreement between Sylvie McMaster and Glen McMaster. Married, June 3, 2002, in Vancouver, B.C. And she remembers the sunny morning, having pictures taken at Stanley Park, the smell of the ocean. They stood barefoot in the sand in their wedding regalia, thinking themselves bohemian. Seagulls swopped and cried out overhead. “They got my birthday wrong.” “We can change that.” “I want the first Christmas.” “It’s in there.” “I want all the Halloweens” “It’s in there.” “Spousal support. Lifetime.” “Fourteen years. High end. It’s more than you’d possibly be awarded.”
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“80/20 parenting time.” “50/50.” “60/40?” “It’s the one thing he’s adamant about. Apparently, he loves his children.” Now the baby is crying, and the toddler has crawled down and darted off and Ken Doll is running after the miniature Barbie Barb, who has escaped to the patio and is crawling into the shrubs, her little diapered bum waving in the air. God, they move fast, Sylvie remembers, and thinks, those bare legs are going to burn in the sun. A table of grey-haired men in lawyer’s suits are scowling at Barbie Barb, who is pushing boobs back into her shirt and doing up buttons and trying to get up to tend to the baby and she knocks her water that crashes to the ground and then she leaps and cries out. She’s been bitten by a wasp. The old men roll their eyes, shake their heads. What the fuck is wrong with them, how do they think children get raised anyway? And then Glen is at the stroller, taking out the baby, rocking the baby. He always loved rocking the babies. All of them. Let her sleep at night. The kids wait at the window when he’s picking them up. He’s never late. Sylvie flips the agreement to the last page. “Just give me a pen.” “You have to read it first. And change the birthday.” “Just give me a pen.”
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TAX REPORTING REQUIREMENTS FOR EMPLOYMENT LAWYERS By Bhuvana Rai
I
n September 2023, I received a series of calls and emails from employment lawyers asking about an article published in the Financial Post1 stating the Canada Revenue Agency (“CRA”) was closing a “loophole” that would “transform severance agreements”. I am not an employment lawyer, so I do not know if the broad allegations of “tax fraud … practiced with abandon in the employment bar” are true (it seems like a wide brush with which to paint an entire area of practice). Certainly, the lawyers I know, including those who have reached out, are dutiful and honest, which I find hard to square with the claim that “more than 95 percent of the time such a payment is not bona fide”. But employment law is not my wheelhouse; tax law is. And this article is aimed at clarifying some of the tax issues arising from the Financial Post article. Below, you will find a short summary of the change in tax legislation, and then a discussion of the claims made in the Financial Post article. WHAT CHANGED? In mid-2023, Parliament (not the CRA, which does not revise or create legislation, and therefore can neither open nor close loopholes) passed new legislation revising its mandatory disclosure rules, saying: The lack of timely, comprehensive and relevant information on aggressive tax planning strategies is one of the main challenges faced by tax authorities worldwide. Early access to such information provides the opportunity to respond quickly to tax risks through informed risk assessments, audits and changes to legislation.2
These rules are aimed at addressing base erosion and profit shifting (“BEPS”) concerns raised by the intergovernmental Organisation for Economic Co-operation and Development (“OECD”). The Income Tax Act previously had mandatory disclosure rules that already applied to avoidance transactions. However, revised s. 237.3 of the Income Tax Act now expands the definition of avoidance transaction and expands the definition of “reportable transaction”:
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1.
An avoidance transaction is no longer defined by having a “primary purpose” of tax avoidance (as would be the case with the general anti-avoidance rule (“GAAR”) under s. 245 of the Income Tax Act). Now, an avoidance transaction includes a transaction if it may reasonably be considered that one of the main purposes of the transaction, or of a series of transactions of which the transaction is part, is to obtain a tax benefit.
2.
A reportable transaction now includes an avoidance transaction that has one of three hallmarks: a. contingency fees to a promoter or advisor; b. confidential protection; or c. contractual protection.
Where a transaction falls within the ambit of the new rules, an information return (RC312) must be filed by every person for whom a tax benefit is expected based on the tax treatment of the transaction, every person who has entered into the transaction and any advisor/promoter of the transaction (with limited exceptions for solicitor-client privilege). These rules do not target employment lawyers (but could still affect you!). The basic idea is that anyone who enters into a reportable transaction—i.e., one that is an “avoidance transaction” (as defined) and has one of the three hallmarks—must now report the transaction. WHAT DOES THE ARTICLE SAY? CAN I STILL USE INDEMNITIES? The Financial Post article claims: Employee lawyers constantly make vicious claims on behalf of their clients about age discrimination, racial discrimination, fraudulent practices, toxic work environments – even worse. And they, and their clients, seldom believe a word of it. … They do it because such allegations attract punitive or other damages that are not taxable. And they are hoping to not have to actually prove any of this nonsense but to settle the case with an allocation to general (i.e. non-taxable) damages. … What employers invariably ask, in return for agreeing to pay these nontaxable amounts, is to be indemnified by the employee in the unlikely event that the Canada Revenue Agency actually audits and finds that this non-taxable payment was not bona fide and was really disguised severance rather than a payment for human rights abuses or toxic treatment. In other words, if the CRA comes back at them for the tax they should have withheld, the indemnity requires the employee to reimburse them.
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Since more than 95 per cent of the time such a payment is not bona fide, the employer always insists on such an indemnity. But I have yet to hear of a case where this indemnity was ever called on, in the thousands of such cases in which I have been involved, because the CRA simply would not catch it through any normal audit procedure.
The article concludes as follows: What will be the result of this legislative change? There are two main possibilities: 1) Either employers will only pay non-taxable damages as severance if they truly believe there is an overwhelming legal basis for it, something that would eliminate 95 per cent of such payments. In which case an indemnity was unnecessary anyway; or 2) Employers, to obtain the advantage of paying non-taxable general damages to make their severance settlements, will not ask for an indemnity agreement and take the chance that the CRA will not spot it, or, if it does, will assess it against the primary taxpayer, the employee, who they will hope has the resources to pay the extra money.
The article does not cite legislation or case law or provide an explanation of this interpretation. I think the basic premise may be that an indemnity constitutes a “contractual protection” such that the settlement transaction would become a reportable transaction (the other options would be that the indemnity would constitute “confidential protection” or a contingency fee arrangement, both of which are evidently not the case on the face of the matter). The term “contractual protection” is defined in the Income Tax Act as follows: contractual protection, in respect of a transaction or series of transactions, means (a) any form of insurance or other protection, including, without limiting the generality of the foregoing, an indemnity, compensation or a guarantee, that (i) either immediately or in the future and either absolutely or contingently, (A) protects a person against a failure of the transaction or series to achieve any tax benefit from the transaction or series, or (B) pays for or reimburses any expense, fee, tax, interest, penalty or similar amount that may be incurred by a person in the course of a dispute in respect of a tax benefit from the transaction or series, and (ii) is not (A) standard professional liability insurance, or
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(B) integral to an agreement between persons acting at arm’s length for the sale or transfer of all or part of a business (either directly or through the sale or transfer of one or more corporations, partnerships or trusts) where it is reasonable to consider that the insurance or protection (I) is intended to ensure that the purchase price paid under the agreement takes into account any liabilities of the business immediately prior to the sale or transfer, and (II) is obtained primarily for purposes other than to achieve any tax benefit from the transaction or series; and (b) any form of undertaking provided by a promoter, or by any person who does not deal at arm’s length with a promoter, that provides, either immediately or in the future and either absolutely or contingently, assistance, directly or indirectly in any manner whatever, to a person in the course of a dispute in respect of a tax benefit from the transaction or series.
The question becomes: Is the tax indemnity in the employment settlement agreement a form of protection that protects the employer against a failure of a transaction or series to achieve any tax benefit from the transaction or series? The explanatory notes to the new legislation make it clear that it is aimed at the following: •
a tax-result protection in any form (other than standard professional liability insurance) under which a person is compensated or indemnified should the tax benefit from the transaction or series not be achieved under the law; and
•
any undertaking by a promoter (or a person who does not deal at arm’s length with the promoter) to assist a person in the course of a dispute in respect of a tax benefit from the transaction or series, even if done for no consideration, including situations where the promoter offers to provide to a person relevant documentation and guidance to dispute an assessment or file an appeal of any court’s decision in respect of the transaction or series.
Several employment lawyers have shared the basic form of their indemnities with me for reference. These clauses typically ask the employee to indemnify the employer against claims, charges, taxes or penalties against all income tax payable by the employee in excess of those withheld. They are not aimed at the settlement at all—they aim to clarify and settle all legal issues between the parties, including tax issues should any arise, as any good settlement should do in any area of law. Legislation can sometimes be broader than intended, and from that perspective, it is worth considering whether such a broad indemnity may acci-
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dentally fall into the category of “contractual protection” for the purposes of s. 237.3 of the Income Tax Act. To be a contractual protection, the indemnity must protect against the failure of the transaction to achieve the particular tax benefit (or pay for any expenses that may be incurred in the course of a dispute of the tax benefit, which is not the case here). In this case, the person indemnified is the employer, not the employee (who would, according to the article, be the only recipient of a tax benefit). If there is no tax benefit to the employer, there is no indemnity aimed at the tax benefit. OTHER COMMENTS I have examined whether the mere inclusion of an indemnity would turn an employment settlement into a reportable transaction for the purposes of s. 237.3 of the Income Tax Act, as alleged by the article referenced above. My conclusion is that it seems unlikely that the indemnity would turn the settlement into a reportable transaction, because the person indemnified is not obtaining any purported tax benefit according to the article, let alone the one at the heart of the transaction. There is no tax benefit to the employer (and in fact, there may be a detriment since the settlement payment may not be deductible). However, there are other issues. To be a reportable transaction, one of the main purposes of the transaction must be to obtain a tax benefit. Provided that the amounts are correctly characterized, there should be no issue with reportable transaction legislation in any event. Indemnities serve legitimate purposes. Under the approach set out in the Financial Post article, most commercial transactions, period, would be nonbona fide. Indemnities have their place: they are used to settle legal issues between parties and allow both parties to move on. Using an indemnity should not be a cause for fear in an otherwise appropriate transaction. ENDNOTES 1. Howard Levitt, “The CRA Has Closed a Loophole That Will Transform Severance Settlements”, Financial Post (8 September 2023), online: <financialpost.com/fp-work/cra-closed-loophole-transformseverance-settlements>.
2. Government of Canada, “Mandatory Disclosure Rules – Guidance”, online: <www.canada.ca/en/ revenue-agency/programs/about-canada-revenueagency-cra/compliance/mandatory-disclosurerules-overview/guidance-document.html>.
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Left to Right: Kiu Ghanavizchian, Sunny Sanghera, Gary Mynett, Lucas Terpkosh, Vern Blai r, Rob Mackay, Farida Sukhia
The Litigation Support Group Business Valuations
Economic Loss Claims
• Matrimonial disputes
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• Tax and estate planning
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• Acquisitions and divestitures
• Construction claims
Personal Injury Claims
Forensic Accounting
• Income loss claims
• Accounting investigations
• Wrongful death claims
• Fraud investigations
Suite 700 – 1177 West Hastings Street, Vancouver, BC, V6E 2K3 Telephone: 604.687.4544 • Facsimile: 604.687.4577 • www.bmmvaluations.com Vern Blair: 604.697.5276 • Rob Mackay: 604.697.5201 • Gary Mynett: 604.697.5202 Kiu Ghanavizchian: 604.697.5297 • Farida Sukhia: 604.697.5271 Lucas Terpkosh: 604.697.5286 • Sunny Sanghera: 604.697.5294
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THE WINE COLUMN By Michael Welsh, K.C.*
Round up the usual suspects. —Claude Rains as Captain Renault in Casablanca (1942)
A
s I try to promote a number of different, even unusual, wines from smaller wineries, I have been told that my articles too often include “obscure” wines that can be hard to find and that, for the ease of readers, I should focus more on those brands that get the best shelf space. I admit to wandering off the beaten path periodically with wines that may not be easy to obtain in all locations (although in my defence, I do always advise where they can be found, especially when so many can be ordered online these days). I am also asked about reviewing modestly priced wines, as many of these are, although that will
* 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.
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be the focus of another column. So I take a look at the current situation with the “big guns” (the world’s largest wine companies) and look at some of the better offerings from their labels at often reasonable prices. And quoting Captain Renault, “Realizing the importance of the case, my men are rounding up twice the usual number of suspects.” Not surprisingly, the wines that sell the most tend to come from the biggest wineries (or more often these days, conglomerates that own wineries, breweries, distilleries, distribution systems, food companies and much more). Most of these giants are unknown to us consumers, as that information seldom makes the label. They generally prefer you not to know they hold the purse strings for wine, whisky, other spirits and beer names that project an image of an independent producer of a unique product. As the narrating character, “Verbal” Kint, says in the movie, The Usual Suspects (one of the truly fine crime mysteries in my opinion), “[t]he greatest trick the Devil ever pulled was convincing the world he did not exist.” You might say these conglomerates have a similar marketing strategy. Even wineries we think of as smaller boutique producers, including a number here in British Columbia, are in fact owned by huge multi-national corporations, or massive pension funds. Have you enjoyed a glass of zippy Kim Crawford Sauvignon Blanc or Mouton Cadet Bordeaux or some Ruffino Chianti, or any wine from Robert Mondavi? Well Constellation Brands, the largest wine conglomerate in the world, thanks you for your support. It was also the largest owner of wineries in Canada until a few years back, owning through Jackson-Triggs such wineries as N’kmip Cellars, Gray Monk, See Ya Later Ranch, Inniskillin, Black Sage and Sumac Ridge1—until the Ontario Teachers’ Pension Plan picked up the portfolio for $1.03 billion in 2016. So now Ontario teachers also rely on your selected Canadian wine consumption to support them in their retirement. So who are these big players? They are the same ones (like Suntory from Japan or Pernod Ricard of France) that control many of the most famous Scottish single malt whisky producers, most major distilleries and a growing number of the more successful craft breweries. To show how small that seemingly big wine world really is and how a very few companies control a huge percentage of the well-known (and in some cases not so well-known but well-respected) wines, here are some of the biggest players and a few of each of their more drinkable brands you will likely recognize on the shelves of your friendly LDB outlet. Bear with me if the list gets a bit mind-numbing. In terms of wineries, the centre of the universe is the aforementioned and appropriately named Constellation Brands, which owns over 100
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brands (selling over 75 million cases a year and having revenue in 2022 of $8.82 billion) that include: •
in California, Caymus, Robert Mondavi Winery, Woodbridge, Simi Vineyards, Santa Lucia, Tim Gore, Meiomi, The Prisoner, R.H. Phillips, Toasted Head, Inglenook, Vendage and Paso Creek;
•
in New Zealand, Kim Crawford and Monkey Bay;
•
in Washington state, Horse Heaven;
•
in Argentina, Marcus James;
•
in Australia, a twenty per cent interest in Accolade Wines (see below);
•
in Italy, Ruffino;
•
in France, Mouton Cadet.
Next in the pantheon is E. & J. Gallo. It has recently shone brighter, having purchased 30 wine brands in 2021 from Constellation Brands. E. & J. Gallo’s annual sales are about 75 million cases, and its 2022 revenue was $5.3 billion. Its brands include: •
in California, Gallo, Apothic, Barefoot Cellars, Carnivor, Dancing Bull, Edna Valley Vineyard, Hahn Family Wines, Liberty Creek, Las Rocas, Red Rock Winery, Turning Leaf, Louis M. Martini, Mirassou and, as acquired from Constellation Brands, Arbor Mist, Black Box, Clos du Bois, Estancia, Franciscan, Mark West, Ravenswood, Taylor, Vendange and Wild Horse;
•
in the eastern United States, Manischewitz;
•
in Washington state, Covey Run Winery, Columbia Winery and Hogue Cellars;
•
in Australia, Clarendon Hills;
•
in New Zealand, Starborough, Nobilo and Whitehaven;
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in Argentina, Alamos Don Miguel Gascón;
•
in Provence, France, Fleur de Mer;
•
in Italy, Allegrini Amarone, Argiano Brunello di Montalcino, Brancaia, Ecco Domani and La Marca Prosecco.
The other main players (in no particular order) are as follows. The Wine Group from California (which produces some 56 million cases of wine annually and earned $1.49 billion in 2023): •
in California, 7 Deadly Zins, Almaden, Benziger, Corbett Canyon, Cupcake Vineyards (which sources from several world wine
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regions for its offerings), Chloe Collection, Fisheye, Flipflop, Paul Masson and Tribute. Viña Concha y Toro, the largest producer and exporter of wines from Latin America, also has large U.S. holdings. It has annual production of about 6.3 million cases. Suffering a bit of a setback in 2022, the company made revenue of $0.98 billion, a decrease from the 2021 revenue that was $1.06 billion. But then in the 2020 and 2021 COVID-19 years we tended to remain home and have wine, which may help explain the strong sales during that time. Its holdings include: •
in California, Fetzer, Bel Arbor, Bonterra, Jekel Vineyards and Sanctuary Wines;
•
in Argentina, Viña Trivento;
•
in Chile, Concha y Toro, Cono Sur, Casillero del Diablo, Don Melchor, Trio, Almaviva, Frontera and Palo Alto.
Pernod Ricard (which makes most of its money from liquor and had 2022 revenue overall of $11.17 billion): •
in California, Kenwood Vineyards;
•
in Australia, Jacob’s Creek and Wyndham Estate;
•
in New Zealand: Stoneleigh, Church Road and Brancott Estate;
•
in France, Mumm Champagne and Perrier-Jouët Champagne;
•
in Portugal, Sandeman Port;
•
in Spain, Campo Viejo and Sandeman Sherry;
•
in Italy, Graffigna.
Accolade Wines (Australia’s largest wine conglomerate with 2022 revenue of $774.9 million): •
in Australia, Hardy Wine Company and Banrock Station;
•
in California, Atlas Peak.
I cannot overlook Groupe Castel, a French beverage company, whose portfolio has wines from across France and some North African vineyards. It had annual revenue in 2022 of $15.87 billion, selling over one per cent of the world’s wine consumption and a huge share of the beer market (about twenty-five per cent of all African beer sales as a starter). That portfolio includes some of the best of Bordeaux and, in the south of France, includes Château du Bousquet, Château Mirefleurs, Château Tour Prignac, Domaine de la Clapière, Château d’Arcins, Baron de Lestac, Roche Mazet, Vieux Papes and La Villageoise.
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And, on a related topic, just to show how a beer company took over some of the globe’s best wineries, I finish this world tour with Treasury Estates, owned by the Australian Foster’s Group. It had annual revenue in 2022 of $1.67 billion: •
in Australia: Penfolds, Wolf Blass, Lindeman’s Wines and Rosemount Vineyards;
•
in California: Beringer, Sterling Vineyards, Rosenblum Cellars, Beaulieu and Blossom Hill.
Our tour would not be complete without reference to two more minor “stars” in our Canadian firmament. They are: •
•
Peller Estates which, with 2022 earnings of $97.7 million, has holdings in Ontario, Nova Scotia and British Columbia, including ○
Peller Estates (B.C., ON and NS) and Wayne Gretzky Estates (B.C. and ON);
○
Sandhill Wines, Calona Vineyards, Black Hills Estates, Tinhorn Creek Estates and Red Rooster Estate2 (B.C.);
○
Thirty Bench and Trius Winery at Hillebrand (ON).
Mission Hill Family Estates (which earned $16 million in 2021 but made its success on Mike’s Hard Lemonade): ○
Mission Hill, Martin’s Lane, Checkmate, Prospect Vineyards and Cedar Creek Estate (all in B.C.).3
Wines from these conglomerates, foreign and domestic, make up some ninety-nine per cent of the wine sold in British Columbia, leaving the small independent wineries (now numbering over 300) to compete for the minuscule remainder. Currently, small B.C. wineries compete for five per cent of the premium market ($20 or more per bottle). As noted, that is just one percent of the total market. No wonder the adage is that to make a small fortune in the wine trade, you must start with a large one. This tour leaves out some very successful world players that remain independent in Europe, New Zealand, the United States and Australia. Probably the most successful is the winery behind the ubiquitous [yellow tail] brand: Casella Wines Pty Ltd., based in Yenda, Australia, and owned by the Casella family, who also have the much more respected Peter Lehman brand. They were Italian immigrants who moved from selling bulk wine to starting the [yellow tail] label in 2000. In another three short years, that brand became the number one imported wine to the United States. It was a remarkable feat in catering to many entry-level wine drinkers by use of good marketing and a cute label masking that lacklustre wine. In more
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recent years the brand has had setbacks, selling in a very difficult low-end sector of the wine market as consumers “trade up”, and word has it the family has been looking to sell.4 Meantime it has been selling off vineyards—to a Canadian pension fund.5 All winning streaks must end. Here is a mix of well-known and some less well-known, but easily found, wines from these global companies. And at the end of the day, while you check these and other selections from the big guys, please also support the small wineries who work so hard on such limited resources to bring you amazing wines. JACOB’S CREEK CHARDONNAY PINOT NOIR SPARKLING N/V Barossa Valley, South Australia #562991 $15.49 For the price this is a surprisingly well-made bottle-fermented sparkler. At eleven per cent alcohol it has a delicate mousse and aromas and flavours of crisp apple, lemon and white peach, with a touch of roasted nut. Straightforward in profile, it has a crisp and mouth-filling finish and is good on its own as an apéritif, or will pair well with the usual fare for a sparkler: cheeses, oysters or a ceviche. KIM CRAWFORD ILLUMINATE SAUVIGNON BLANC 2021 Marlborough, NZ #61658 $22.99 New Zealand producers owned by the conglomerates (Kim Crawford and Stoneleigh) have been at the forefront of marketing low alcohol wines, a smart move. Both do Sauvignon Blanc and a Rosé. And the wines are well made. This one has seven per cent alcohol and only 70 calories per 5 oz serving. The winery partially de-alcoholized the wine using a “spinning cone”, a low vacuum distillation process that does not affect the wine’s aromas. The alcohol is reduced to below one per cent on approximately sixty per cent of the final volume, with forty per cent of the base blended back to achieve a final alcohol level of seven per cent. There are aromas of lemonlime, white peach and a bit of passionfruit, and flavours of lime and green apple with some grassy notes leading to a good, lifted finish. It gets high ratings from me at least. This is a good sipper on its own but will go with all the things Sauvignon Blanc is made for. Think oysters and other seafood, salmon (fresh or smoked), baked white fish, soft cheeses or lighter creambased pasta dishes. CONO SUR RESERVA ESPECIAL SAUVIGNON BLANC 2022 Valle de Casablanca, Chile #615319 $15.99 This is a dependable, well-made and quite full-bodied Sauvignon Blanc that
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is great value for the price. It is brimming with aromas of cut grass, grapefruit, gooseberry, green apple and lime, with a bit of acacia blossom. On the palate are green mango and green peach, and more green apple with again those grassy and herbal notes, especially of thyme and Thai basil. It will pair well with oysters, steamed clams, a ceviche, spicy Thai or Vietnamese fare, or even a seafood pasta dish. BLACK HILLS ESTATE WINERY VIOGNIER 2021 BC VQA Okanagan Valley #136010 $35.00 (approx.) Black Hills, which built a cult following with its Nota Bene, has branched into whites. Despite its purchase from the original owners, it continues to produce original and highly sought-after wines. This one is fermented with wild and selected cultured yeasts in a combination of concrete, neutral oak puncheons and stainless steel and aged six months on its fine lees. A light lemon colour, it has a lovely nose of yellow peach, light apricot and orange blossom. The rich palate displays a bright acidity with more of that stone fruit, some orange zest, minerality and a long clean finish with some dried apricot and tropicality. Recommendations include seafood dishes, roast chicken or pork tenderloin. We had it with a burrata tomato and crouton salad with a rich balsamic with which it went well. Available at private wine stores like JAK’s, Everything Wine or Marquis Wine Cellars, or at Save-OnFoods wine section, or from the winery online or in person. CEDAR CREEK PINOT NOIR 2020 BC VQA Okanagan Valley #567412 $30.99 This is a lighter-weight Pinot from estate grown fruit at its Mission location. On the nose it shows black cherry, black currant and raspberry fruit, backed with spicy oak and savoury herbs and tobacco. The bright palate displays more of the same berry/cherry fruit, with some smoky notes and moderate tannins. Overall it is smooth and easy drinking although a bit lacking in intensity and goes best with food. Try it with roasted salmon or chicken with grilled fall vegetables, or an ahi tuna Niçoise salad. CAMPO VIEJO RIOJA RESERVA 2016 DOC Rioja, Spain #823303 $19.99 For a mass-produced Rioja this again is a bargain for the price, especially given its vintage. It is a blend of Tempranillo, Graciano and Mazuelo and was aged 18 months in American and French oak barrels and 18 more in bottle. It weighs in with a modest 12.5 per cent alcohol. There is ripe red fruit on the nose and palate. The aromas are of raspberry, cassis and light
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Queen Anne cherry, with some baking spice and vanilla. Medium-bodied, its texture is smooth and round on the palate, with more raspberry, red cherry, some light plum and fig with light tea-like tannins. It is missing a bit of complexity in the finish, but that finish is lengthy and smooth. It is perfect with tomato-based pastas and stews, an herb-crusted lamb or some tapas like fried Manchego, chorizo in red wine or Spanish meatballs. COLUMBIA WINERY CABERNET SAUVIGNON 2018 Columbia Valley, WA #496745 $28.99 This final recommended selection does not disappoint. Washington state is producing some of the finest Cabernets in the world as it has the right balance of long hot desert days and cool nights. This one, from a cuvée that is forty per cent from Wahluke Slope and sixty per cent from Horse Heaven Hills vineyards, opens on the nose with black cherry, black currant, blackberry and black plum, mixed with vanilla and cocoa powder. It tastes of sweet dark cherry, blackberry and raspberry, plum, eucalyptus and vanilla and dark chocolate on its long smooth finish. It drinks very well now. Great for Beef Bolognese, Osso Bucco, braised lamb shanks, a grilled New York striploin, barbecued ribs—any rich meat, in fact. We had it with a rich Beef Bourguignon with which it paired beautifully. MEIOMI CABERNET SAUVIGON N/V California #111033 $29.99 I close with a caution of how a wine can go wrong when it is made to appeal to a mass audience and likely then appeals to no one. Meiomi is a California-based brand that makes unctuous concoctions that follow that style of too much and too sweet. And not cheap. It was a selection for this column I regret purchasing. If you do, then I can only recommend something like a burger with all the fixings or a rack of ribs and a Caesar or creamy coleslaw to pair with the sweetness. Why this Cabernet gets decent reviews is beyond me. Sources such as Vivino actually say some good things about it although all mention the sweetness on the palate. It is black in colour and obviously built around richness from its clearly overripe fruit to the winemaking that throws everything but the kitchen sink into the mix. The aromas cover the map: toasted oak, vanilla, chocolate, black fruit, even graham crackers. It makes for a jumbled mess that has no character. The palate is like a bad port: full of fruit, vanilla, milk chocolate and syrupy sweetness. The winery says it is made in its “unique Meiomi style”. Be warned. There is a world of good Cabernet out there instead.
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ENDNOTES 1. As noted in my last column, in 2023 Constellation Canada closed this iconic Summerland winery and its wines are being produced in the Vincor Winery in Oliver, along with many other labels. 2. Sadly, in October 2023 Peller announced it is closing this Naramata winery indefinitely due to extensive vineyard damage and loss over the 2022–2023 winter and, again, will make wines under the label at some of its other wineries. 3. I add a word of warning with Mission Hill, Peller Estates and Jackson Triggs: never buy the bottled or
bagged cheaper white label stuff—it is the Canadian equivalent of Franzia or Sutter Home or Carlo Rossi and is made from questionable imported wines that are blended in Canada to some semblance of drinkability. They are not Canadian wine in any true sense. 4. Online: <www.afr.com/street-talk/yellow-tail-winemaker-casella-family-brands-courts-buyers-2019 0620-p51zp5>. 5. Online: <drinksdigest.com/2022/11/30/casellasells-35-vineyards/>.
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NEWS FROM
BC LAW INSTITUTE By Tejas Madhur*
RECONCILING CROWN LEGAL FRAMEWORKS PROGRAM It has been a pleasure to chair the board of the British Columbia Law Institute (“BCLI”) this past year, which has seen our organization reaching into the legal community in many ways. Of particular importance to me has been the launch of our Reconciling Crown Legal Frameworks Program and the release of the first of two primers under this program. The primers aim to provide information on law reform issues related to British Columbia’s adoption of the Declaration on the Rights of Indigenous Peoples Act (the “Declaration Act”). The first primer, The UN Declaration on the Rights of Indigenous Peoples and BC’s Declaration on the Rights of Indigenous Peoples Act, introduces the Declaration Act and its implications for B.C. legislation. It discusses how the Declaration Act applies to the laws of British Columbia and describes the legal obligations the legislation sets out for the B.C. government. We are particularly grateful to the Indigenous Law Research Unit at the University of Victoria for collaborating with us to co-publish our second primer, Indigenous Laws. This primer provides an overview of Indigenous laws, their sources and how they operate. It also describes the principles and processes that Indigenous peoples and communities use and have always used to govern themselves. I look forward to the release this fall of the next series of primers, which will consider what legal pluralism means and explore examples of legal pluralism in practice. We are also working on a comparative study of Indigenous courts in other jurisdictions that is intended to assist in finding ways for the justice system of British Columbia to adapt to support Indigenous legal orders. * Tejas Madhur is the chair of the board of the BCLI. She practises Aboriginal Law at JFK Law.
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AUTUMN 2023 CONSULTATIONS Do you have knowledge or experience that could be valuable for reforming public hearings under the Local Government Act or Part 3 of the Family Law Act? Your comments will contribute to our next wave of consultations this fall. Two BCLI projects are scheduled to enter the consultation phase: Review of Parentage under Part 3 of the Family Law Act and Renovate the Public Hearing Project: Pre-Development Public Engagement & Legal Reforms to Support Housing Supply.
Review of Parentage under Part 3 of the Family Law Act Conclusively determining who a child’s parents are is an important part of family law. It is the foundation of many aspects of a child’s identity, such as their surname, relationships, nationality and cultural heritage. Parentage can also determine important legal rights and responsibilities, such as a child’s inheritance rights. When the Family Law Act came into force in March 2013, it gave British Columbia its first comprehensive legislative framework for the law of parentage. The goal of this legislative framework was to provide a complete scheme that addresses children equally, no matter whether the child was born through natural or assisted reproduction, to protect children’s best interests and to promote family stability. Our project examines whether Part 3 of the Family Law Act is meeting these goals, in light of developments that have taken place in the law, society and reproductive technology since the Family Law Act came into force. The project’s consultation paper will present tentative recommendations for reform of Part 3 and invite comments from the public. Renovate the Public Hearing Project: Pre-Development Public Engagement & Legal Reforms to Support Housing Supply Current public-hearing requirements, critics say, result in high costs, wasted time, low satisfaction and sometimes trauma for those involved. Is there a better way to engage the public and reduce pre-development risk and barriers to housing? BCLI seeks to answer this question in the Renovate the Public Hearing Project. Our consultation paper will present options for improving public engagement on local land use bylaws. WINDING DOWN OUR CONSULTATION ON ARTIFICIAL INTELLIGENCE AND CIVIL LIABILITY Our two-year project on Artificial Intelligence and Civil Liability is nearing completion. Our goal was to determine how the rules of tort law need to
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adapt to deal with harm to persons and property caused by autonomous artificial intelligence (“AI”) systems. The project sets out to answer the following questions: Who is, or should be, liable for choices made by intelligent machines operating autonomously? What happens when a robot commits a tort? In July 2023, the formal consultative phase of the project began with the release of a Consultation Paper on Artificial Intelligence and Civil Liability proposing ten draft recommendations to adapt existing tort rules to deal with the challenges of AI. Consultation to gather the views and insights of stakeholders and the public on tentative law reform recommendations is a vital step in the law reform process to bring as wide a range of perspectives as possible to bear on the issues in question and the thinking behind proposed solutions. Our interdisciplinary project committee is now revisiting the tentative recommendations with the benefit of the responses to the consultation paper. We are grateful to all those who responded to the Consultation Paper on Artificial Intelligence and Civil Liability. Their comments will assist our project committee and staff in the process of refining the recommendations that will appear in the final report for this project. 2023–2026 BCLI STRATEGIC PLAN Finally, BCLI has concluded a Strategic Plan that will guide our work through to 2026. Key elements of the plan are our commitment to lead collaboratively on current and emerging law reform issues, to ensure that our law reform recommendations support consistency with the United Nations Declaration on the Rights of Indigenous Peoples and to continue to advance the development of elder law reform. For the latest in our work, please check out our website and sign up for our newsletter at <www.bcli.org>.
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à nÈzÁ00« áXÁR ȳ Á R0n¨ ÁR0«³ áƺ Ȓǔǔƺȸ וٖגאƬȒȇǔǣƳƺȇɎǣƏǼ ɀɖȵȵȒȸɎ ƏȇƳ ƺƳɖƬƏɎǣȒȇ ǔȒȸ ǼƏɯɵƺȸɀ ƳƺƏǼǣȇǕ ɯǣɎǝ ƏǼƬȒǝȒǼ ƏȇƳ ƳȸɖǕ ƳƺȵƺȇƳƺȇƬɵً ɀɎȸƺɀɀً ƏȇɴǣƺɎɵً ƏȇƳ ƳƺȵȸƺɀɀǣȒȇِ I « R0 nÁRç n0J n ! xxÈzXÁç
ى ואٮדזהٮגה ى ואٮדזהٮזזזٮǣȇǔȒ۬ǼƏȵƫƬِƬȒȅ
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LAPBC NOTES By Anonymous
NEVER STOP LIVING EACH DAY (OR CONTINUING ON AFTER DIVORCE) Life is good and life is full, but there are days when it is just hard to stay focused and days when it is hard to find appreciation for the richness that is my life. And that is what it looks like to be on this journey following my divorce. But with intention, strength, sometimes vulnerability and support, I am mostly doing well. When my ex decided to leave our long-term marriage, it was first a shock, but then, upon reflection, perhaps not so shocking at all. The relationship had fallen into unhealthy patterns, and it was best for the two of us to part ways. In order to recover, I needed to know what I was recovering from. I also needed to do lots of work, so I signed myself up for therapy and began a new look at old patterns. I strengthened bonds with friends and gave up some unhealthy friendships, too. Being intentional about using my free time became a priority as some of my free time was being taken up by logistics of divorce (e.g., separating out our stuff, talking to lawyers and mediators and processing loss). I had less time and energy for all of the people in my circle and soon realized that I needed to clarify and prioritize friendships that were mutual and fulfilling and with give and take. I cultivated some friendships into closer bonds and then was able to give up those relationships that were not as healthy. There just wasn’t space for me to give attention to as many people when I had a full-time job and needed space to
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>.
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process my own emotions and crossroads. I needed to take care of my brain, body and soul, and focus on intentionally eating well and exercising when possible. I tried to give myself breaks when I ate the wrong thing or could not get out of bed to do my morning workout. I nourished myself with good friends, some peer support and lots of travel and activities. Grief was overwhelming at first, but soon I was able to contain it. I needed to grieve the loss of marriage, family structure and the death of the dream of our future together. I kept thinking, “We built so much, how do I dismantle it?” I soon learned that I could keep the good memories and knowledge and find places in my heart and head for the unpleasant ones. I processed grief by allowing space to cry and remember, by talking with friends and a good therapist, and by even talking with my ex. While the grief was ebbing and flowing, I needed to sort through where I wanted to live, how I was going to spend my time, and what things large and small, from furniture to photos to knickknacks, I wanted to keep. The sorting process took time and sometimes expertise. I used a realtor friend to explore living options and read a book about clearing space. I also asked my friends for help, which caused me to be vulnerable, as I was accustomed to being the helper. I needed to physically change things externally as well as internally. I created a new look to my home and had a girlfriend party where I gave away stuff to them, they helped me pack and clear, and then we gave items to charity and the dump. I saved stuff in my crawl space that were mementos, figuring I could re-sort later. In the end, I reclaimed my house and made it my home. The reclaiming did not stop there. I started to intentionally go to places “we” used to go but went with friends and made sure they helped me do some small ritual to shift the place for me so that I would feel renewed appreciation for places and make new memories. I have learned to discern what to do next by training myself to answer the following question honestly: What do I want and need for me today? I try not to overdo it and forgive myself when I do. When I have tough moments, I am quiet, go for a walk and remind myself how fortunate I am to have a good life, job, friends and family. I am currently working on new dreams for the future, too. I like to travel and began planning and enjoying more trips. I am able to explore possibilities for where I want to live and what I would like to do one day if/when I retire. At first, I could not even see beyond today. And speaking of today, I try to live intentionally and presently most days, too.
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6TWUVGF 'HƂEKGPV #TDKVTCN +PUVKVWVKQP Our seasoned international & domestic arbitrators adhere to a fair process and deliver impartial, balanced and timely awards.
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A VIEW FROM THE CENTRE By Artem N. Barsukov*
TOP TEN TIPS FOR DRAFTING ARBITRATION CLAUSES† As arbitration becomes an increasingly attractive means of dispute resolution, more and more commercial contracts feature arbitration clauses. Yet too often in negotiating their contracts, parties prefer to focus on closing the deal and avoid dealing with the unpleasant topic of dispute resolution. In the result, arbitration clauses often become an afterthought, dropped in at the eleventh hour before closing. And yet, a well-drafted arbitration clause makes the difference between a highly efficient dispute resolution process and spending millions of dollars only to end up with an unenforceable award. Below are ten tips for drafting arbitration clauses that should be kept in mind any time you draft an arbitration clause. 1. Ensure you have all essential elements. For an arbitration clause to be effective without further assistance from courts or tribunals, it must contain five essential elements: (i) an express statement that all disputes arising from or in connection with the contract shall be resolved through arbitration; (ii) applicable arbitration rules; (iii) place or legal seat of the arbitration; (iv) number of arbitrators; and (v) language of the arbitration. Make sure your arbitration clause addresses all five of these elements at a minimum. 2. Consider whether the arbitration should be institutional or ad hoc. An arbitration can either be administered by an arbitral institution or carried out ad hoc. In institutional arbitration, the parties rely on an
* Artem Barsukov, FCIArb, is a lawyer at Bennett Jones LLP. He carries on a global arbitration practice out of Edmonton, Alberta. † A version of this article appeared in the October 2023 issue of Arbitration 360, an arbitration-focused newsletter published by Bennett Jones LLP.
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arbitral institution—such as the ADR Institute of Canada (“ADRIC”), based in Toronto; the Vancouver International Arbitration Centre (“VanIAC”), based in Vancouver; the International Chamber of Commerce (“ICC”), based in Paris; or the London Court of International Arbitration (“LCIA”), based in London, England—to administer the case in accordance with its rules and to provide a range of ancillary services, including receipt and distribution of documents, managing advances on costs, resolving procedural issues before the arbitral tribunal is appointed, and even performing a final quality check of the arbitral award. By contrast, in ad hoc arbitration, the parties and the arbitral tribunal manage the case on their own. Ad hoc arbitration tends to be less expensive and provides ultimate procedural flexibility, but requires experienced counsel and arbitrators to be effective. On the other hand, institutional arbitration might be more expensive and somewhat less flexible, but worthwhile when parties and their counsel are either unfamiliar with the process or come from different legal systems (e.g., common law vs. civil law). Arbitral institutions may also assist with the appointment of experienced arbitrators through the institution’s formal and informal rosters. 3. Choose appropriate and modern arbitration rules. There is a wide range of arbitration rules for the parties to choose from. What set of rules will be appropriate depends on the nature of the dispute and the surrounding circumstances. For example, some arbitration rules permit dispositive motions for early resolution of discrete issues, while others do not. Some arbitration rules may be more up-to-date than others and address emerging issues, such as third-party funding and virtual hearings. Finally, an increasing number of arbitral institutions, including VanIAC and ICC, offer a separate set of “expedited rules” which provide for simplified procedures to enable faster and less expensive resolution of smaller disputes. Given that arbitral institutions usually administer arbitrations in accordance with their own rules, the choice of arbitration rules may strongly influence the choice of arbitral institution and vice versa. 4. Choose the place of arbitration carefully. The choice of the “place” or “legal seat” of the arbitration is of critical significance, as it determines the laws that will govern arbitral proceedings. The choice may thus affect a host of key issues, including whether the dispute can be settled by arbitration, the format and content requirements for the award, grounds for setting aside the award, and appeal rights, to name a few. For this reason, never choose the place of arbitration based simply on
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how attractive or convenient the location is. Always consult with experienced arbitration counsel or local counsel in the place of arbitration to determine potential risks and pitfalls. Note that you can always agree to hold the actual hearing at a different location than the “legal seat” of arbitration. 5. Do not constrain your choice of arbitrators. While the ability to “select your own judge” is often seen as a key benefit of arbitration, it is not always prudent to specify arbitrator qualifications in the arbitration clause. You rarely know in advance what type of dispute will end up going to arbitration. An arbitration clause that requires arbitrators to have technical expertise may be ill-suited for a dispute that is purely legal in nature. Further, prescribing qualifications—especially multiple qualifications—may significantly shrink the pool of available arbitrators. Finally, specifying arbitrator qualifications increases the risk that the award might be set aside, as the losing party will have an opportunity to argue that the arbitral tribunal was not constituted in accordance with the arbitration agreement. 6. Expressly set out appeal rights. Most people think of arbitration as producing a final decision that is not subject to any appeal on its merits. However, as with other things, this too can be customized in the arbitration clause. Thus, before drafting the arbitration clause, you need to consider whether and to what extent you would like to have appeal rights. Not having a right of appeal will promote quick and final disposition of the dispute; however, parties will have to live with the arbitrator’s decision, even if the case is wrongly decided on the merits. If the primary goal is to achieve prompt resolution of the dispute and to move on, then there is little rationale for a right of appeal. If, however, the primary goal is to “get it right”, then rights of appeal should be given some thought. In either case, ensure that the arbitration clause expressly addresses the issue, particularly in the context of domestic arbitrations, where there may be statutory rights of appeal if the arbitration clause is silent on the matter. 7. Address confidentiality of proceedings. While confidentiality is often seen as one of the key benefits of arbitration, few arbitration rules actually address this topic, and when they do, they often limit the scope of confidentiality protections. If you want every element of the arbitral proceedings—including their existence—to be confidential, ensure you address this in the arbitration clause. Confidentiality may also play in favour of choosing institutional arbitration, as arbitral institutes can
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privately resolve procedural disputes that arise prior to the appointment of the arbitral tribunal. By contrast, in ad hoc arbitration, any such disputes would have to be dealt with in open court. 8. Avoid mandatory time limits. It is becoming increasingly common for arbitration clauses to provide time limits for proceedings. These time limits are often unrealistic and couched in mandatory terms (e.g., “an award shall be rendered within 6 months from the constitution of the tribunal”). If the prescribed time limit is not met, the arbitral award may be set aside on the basis that the arbitration agreement was not complied with. If you must have a time limit, ensure that it is couched in aspirational terms and expressly allows the arbitral tribunal to extend the time limit where necessary. 9. Address continuing performance. Arbitration rules generally do not require parties to continue to perform their obligations after proceedings have begun. This can sometimes lead to one of the parties suspending performance during an arbitration as a pressure tactic. To avoid this, ensure that your arbitration clause requires parties to continue performing their obligations during any pending arbitration, if this is desired. 10. Consult experienced arbitration counsel. These tips are only general suggestions that will not work for every situation. To ensure that you have a robust arbitration clause that meets your unique needs, always consult an experienced arbitration practitioner when drafting the underlying agreement, whatever the nature of the transaction. The time to figure it out is when the parties shake hands, not when they throw down the gauntlet.
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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.
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PRIZES First prize:
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$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.
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PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS By Heidi Wudrick*
ASSISTANT PROFESSOR ANDREA HILLAND ON THE FOUNDATIONAL ROLE OF EDUCATION IN RECONCILIATION Andrea Hilland, K.C., is a Nuxalk scholar and powerful advocate for the resurgence of Indigenous laws and genuine reconciliation. On July 1, 2023, we were delighted to welcome her back to the Peter A. Allard School of Law as an assistant professor. Professor Hilland brings a wealth of legal expertise to the law school. She has advocated on behalf of First Nations to assert Aboriginal rights on environmental issues and advised organizations (including the Law Society of B.C., the Federation of Law Societies, the Canadian Bar Association (B.C. Branch), the BC Human Rights Tribunal and the Continuing Legal Education Society of BC) on Indigenous matters, including developing responses to the Truth and Reconciliation Commission’s calls to action. An Allard Law alumnus, Professor Hilland also served as associate director of Indigenous Legal Studies from 2008 to 2012. Here, she discusses her research, her approach to teaching and her work to support the resurgence of Indigenous laws. Tell us about your research. What are you currently working on? My research examines the intersections of Indigenous laws, Aboriginal rights and environmental regulation to challenge discriminatory theories of colonial supremacy and Indigenous inferiority that are perpetuated through the contemporary colonial legal system. Key objectives of my research are to support the resurgence of Indigenous laws and to demonstrate the potential of Indigenous laws to enhance Canada’s multi-juridical legal system.
* Heidi Wudrick is the communications manager at the Peter A. Allard School of Law.
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This year you will be teaching Aboriginal Peoples and Canadian Law and Aboriginal and Treaty Rights in the fall and spring terms. What do you hope students take away from your courses? I would like to highlight the shortcomings of the colonial legal regime’s handling of Indigenous issues. I will encourage students to identify and challenge the colonial philosophies that underlie Canadian law, and to understand Indigenous strategies of resistance to colonialism, including challenges to and within the Canadian legal system. My hope is that students will develop their critical thinking skills and their confidence to engage with Indigenous legal issues and advocate for fundamental changes to the colonial legal system. How would you describe your approach to teaching? I have the humility to accept that I do not know everything, and that I am (and always will be) learning. I try to make the topics relatable at a personal level. The law involves people, so I really encourage students to go beyond legal principles and think about the individuals who are affected by the law. At the Law Society of B.C., you were actively involved in work to advance reconciliation. Among other work, you created the Indigenous Intercultural Course, which responds to the Truth and Reconciliation Commission’s call to action #27, calling upon Canadian law societies to ensure all lawyers receive cultural competency training. What do you see as the next big step for law societies to move towards genuine reconciliation? Law societies need to conduct honest and critical evaluations of their legislation, regulations and ethical codes to identify and remove colonial biases that underlie the regulation of lawyers. Rules actually need to be changed. Personal and systemic biases against Indigenous people need to be eradicated. Indigenous perspectives need to be incorporated into competence and ethics standards. Regulatory processes, such as investigations and hearings, need to integrate Indigenous approaches of inquiry and resolution, including trauma-informed and non-adversarial methods. You previously served as associate director of Indigenous Legal Studies and completed your LL.B. and LL.M. degrees at Allard Law, and the Allard community is excited to have you back! What inspired you to return? A combination of factors led me back to Allard Law. First, there were a couple of big life changes—specifically, the passing of elders and leaders within my Nuxalk extended family—that made me reflect on the limitations of my work within the confines of a very colonial institution. Second, my community, the Nuxalk Nation, continually asserts Nuxalk laws to resist the imposition of colonial laws in Nuxalk territory, and I would like to support them
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in their efforts. And third, a lot of work is being done in the academic realm (including, of course, at Allard Law) to support the resurgence of Indigenous laws, and I want to meet and work with Indigenous communities to contribute to this work. What kind of long-term change do you hope to see through your teaching? What do you hope to instill in future lawyers? The Truth and Reconciliation Commission’s calls to action emphasized the foundational role of education in reconciliation, and that truth comes before reconciliation. Lawyers need to understand how Canadian law has harmed, and continues to harm, Indigenous people. Lawyers need the humility to acknowledge the shortcomings of Canadian law. They also need to appreciate the privileged position that lawyers hold to identify and remove systemic biases within the legal system. My hope is to inspire future lawyers to be truly empathetic and committed to correcting colonial injustices.
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TRU LAW FACULTY NEWS By Ryan Gauthier*
THE PASSING OF TRU LAW FOUNDING DEAN CHRIS AXWORTHY The founding dean of TRU Law, Chris Axworthy, K.C., passed away on August 11, 2023. Chris was a former Attorney General of Saskatchewan, with a prestigious career in politics and in teaching law. Chris came to TRU to establish the law school in May 2010. On September 6, 2011, Chris formally opened the law school, welcoming 75 students in its first year. Chris noted that the opening of TRU Law began “a journey that seeks to redefine both the study and practice of law in Canada.” His hope “for Kamloops and the Interior of B.C. is that the lawyers remain in the city where they went to law school for the duration of their careers. We hope that many of our future graduates will stay in the Kamloops area, helping contribute to the community and providing everyone with critical access to legal services when they need them.” While Chris left TRU Law in July 2013, faculty who worked with him remember him fondly. Professor Katie Sykes shared her thoughts: “Chris was a visionary leader who built a law school committed to delivering the best tradition of legal education in a new context. He convinced me to come to Kamloops and join the faculty because it was so exciting to be part of his mission. Today, TRU Law is known for punching above its weight, for its pioneering spirit, for the strong sense of community across our students and alumni, and for our resilience in the face of challenges. That’s the attitude that Chris ensured was built into this law school’s DNA from the start.” TRU LAW RESEARCH YEAR-IN-REVIEW As of this writing, the school year has not yet begun. However, TRU Law
* Ryan Gauthier is an associate professor at the TRU Law Faculty of Law. He won the TRU Law faculty NHL playoff pool this summer. We are told his victory was so absolute that it led to a change in the pool rules halfway through the playoffs.
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faculty members are busy working on their research. Below is a short synopsis of some of the publications of TRU Law faculty members in 2022/23. Assistant Professor Blair Major In “Recovering the Dimensions of Dignity in Religious Freedom: Protecting Religious Proselytization in International Human Rights”, published in the Canadian Yearbook of International Law, Blair examines the history of religious freedom in international human rights. He argues that the evolving treatment of proselytism, in particular, risks causing harm to important aspects of religious freedom. Associate Professor Andrew Pilliar “Toward Justice Epidemiology: Outlining an Approach for Person-Centred Access to Justice”, in the Dalhousie Law Journal, proposes and explores the novel concept of “justice epidemiology”. Drawing on the development of the fields of epidemiology and public health, Andrew argues for the creation of a person-centred, empirical, interdisciplinary field of study focused on how justice problems arise and how people respond to those problems across the population. Andrew outlines some of the norms and values that should guide justice epidemiology, with a view to creating sustainable efforts to understand, prevent and respond effectively to justice problems to improve access to justice. In “Vulnerability Theory and Access to Justice: Elaborating Possibilities for Legal System Design”, published Law, Vulnerability, and the Responsive State: Beyond Equality and Liberty, Andrew applies Martha Fineman’s “vulnerability theory” to access to justice problems and legal system design with the goal of making legal systems more responsive to human needs. He also draws on Amartya Sen’s capability approach, and Philippe Nonet and Philip Selznick’s responsive law, to suggest changes ranging from legal aid assessment and delivery to how we conceive of the rule of law itself. Associate Professor Krish Maharaj In “Alternatives to Expectation: When Can You Get Disgorgement, GainBased, or Restitutionary Damages for Breach of Contract”, published in the Queen’s Law Journal, Krish discusses the 2020 Supreme Court of Canada decision Atlantic Lottery Corp Inc v. Babstock and provides a framework for answering the two questions put forward by the court to determine whether a gain-based remedy ought to be available in response to a breach of contract. Krish’s proposed framework indicates that gain-based damages should be available only in exceptional circumstances. However, he clarifies the potential exceptions and their reasons, and the framework may thus be of
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assistance in any situation involving profits arising directly from a breach of a contractual duty. In “Good Faith Not Good for Consistency: Irreconcilable Results in Wastech and Callow”, in the UBC Law Review, Krish examines two recent Supreme Court of Canada cases examining “good faith” in contracts, and the two distinct good faith duties at play in each of these cases. Krish highlights a significant difference between them that is not reflected in the court’s dicta and might undermine future efforts to develop good faith jurisprudence and additional good faith duties in alignment with clear principles. Krish also co-authored a chapter, “Contracts”, for the 2022 Annual Review of Law & Practice published by the Continuing Legal Education Society of British Columbia. The chapter was co-authored with Professor Bruce MacDougall of the Peter A. Allard School of Law. Associate Professor Ryan Gauthier In “Publicly-Subsidised Stadiums: Changing the Game Through Good Governance”, in the Jeffrey S. Moorad Sports Law Journal, I examine three professional sports stadiums that received public subsidies in Edmonton, Sacramento and Cobb County, applying principles of good governance. My proposal is that although governments will continue to publicly subsidize stadiums, applying good governance principles of transparency, public participation, social responsibility and review of such agreements will create better outcomes for the public. I also co-edited the Handbook on International Sports Law. The book features contributions from sports law academics from around the world. The chapters provide introductions to areas of sport such as the Court of Arbitration for Sport, taxation of athletes and protection of young athletes. James A.R. Nafziger of Willamette Law School in Oregon co-edited the book. Professor Robert Diab “Reasonable Apprehension Under Mental Health Law”, in the Queen’s Law Journal, was co-authored with TRU Law alumnus Jolene Sanderson. Robert and Jolene examine the process that police use to apprehend a person to take them to a health facility involuntarily. They argue that such apprehensions should be carried out in a reasonable manner, similar to that of a search and seizure. Robert also authored a report for the Rouleau Commission into the use of the Emergencies Act in 2022, titled “The Policing of Large-Scale Protests in Canada: Why Canada Needs a Public Order Policing Act”. Further, with TRU Law Professor Chris Hunt, Robert co-authored a book titled Search and Seizure, which will be part of Irwin Law’s “Essentials of Canadian Law” series.
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NOS DISPARUS By R.C. Tino Bella
Warren Mitchell
Warren Mitchell passed away on August 1, 2023. With his passing, and that of Michael O’Keefe five weeks before, went the two towering leaders of the tax bar in Canada for the last half century. Warren studied commerce and law, graduating in 1962 with a law degree from the University of British Columbia. He articled in Calgary, then “on a whim” applied for and accepted a job as a lawyer with the tax department in Ottawa. For two years, he travelled western Canada settling and litigating tax cases, learning without the encumbrance of supervision how to prepare a case in a hurry, make tactical decisions on the fly, stand up and make the best argument, and experience the results in real time. In 1965, Warren represented the tax department opposite Pat Thorsteinsson. After they settled the case, Pat asked Warren to join him in Vancouver at his newly formed tax boutique firm. Pat and Warren worked on every file together, sitting opposite each other at a partner’s desk, developing and refining their approach to the legal issues and memorably presenting their solutions, whether planning a transaction or litigating a tax dispute, in brief, tight, expressive language. Warren’s ongoing fascination with the power of expression, with brevity, with the choice of the right word, with presenting complex ideas in simple terms, was the source of his power as he became Canada’s leading tax litigator over the next decades. Warren never tired or lost his enthusiasm for the practice of law, as he approached it in his inimitable style. Each case was a new, fascinating challenge with which to engage. And engage he did, spending hours exploring all the legal arguments, refining and honing the analysis, and putting the
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submissions into the briefest, most cogent form. He argued every case on one issue: if the case could not be won on the best argument—the hill to die on—then it could not be won. Every other argument was also honed and refined, so it could be dealt with as it arose. The key to success was to tell the judge the story in persuasive and simple language, and take them along the path to the irrefutable conclusion. Along the way, Warren trained and inspired generations of tax lawyers. He believed that junior lawyers should be involved in every aspect of a file, and took them to every meeting, included them in every phone call, argued with them through every legal argument, and reviewed and edited every draft— and there were scores for every case—of every written and oral submission. Warren also taught his juniors his principles for an effective practice. These included basic criteria of common sense, intelligence and doggedness. For almost 60 years, he followed his own rules: answer every call, email or text before the end of the day it was received; start the day with the most unpleasant task or communication—the day can only get better after that; work on a clean desk as clutter creates panic, which gets in the way of efficient and pleasant work; do not celebrate success or suffer failure too deeply—just play the hand you are dealt better than anyone else; be friendly but not friends with clients to retain your objectivity; leave time in your day to think; and do not take your work home (figuratively speaking in today’s work from home world). Warren grew his practice to Alberta in the 1980s and nationally in the 1990s. Warren recounted in his Nos Disparus piece about Mike O’Keefe how Mike moved with his wife Brenda to Toronto to foster the national growth of the firm. Warren spent parts of every month in Toronto as well, and after Mike and Brenda moved back to Vancouver, Warren and Mike shared an apartment in Toronto as they continued to build and serve the Toronto clients. Warren was also the mastermind behind the firm name, Thorsteinssons. As partners joined the firm in the early days, their names were added to the firm name, until that became unwieldy. Then, when Pat Thorsteinsson retired, Warren came up with the idea to trademark “Thorsteinssons”, modelled after the firm named Freshfields in London, to ensure the continuity of the firm’s name and reputation. Warren has left a legacy of a successful tax boutique law firm, which has grown from two lawyers when he joined Pat Thorsteinsson in 1965 to over 70 lawyers in Vancouver and Toronto today. And he has left a legacy of an approach to the practice of law that brought him intellectual stimulation, professional success, personal friendships and joy.
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Warren was witty, curious and erudite. He read widely and deeply, preferring non-fiction, especially American history and politics. His literary journeys led him to a perfect aphorism for most situations, including legal arguments. He sometimes had to be convinced to substitute legal terminology for the more picturesque literary reference. He was athletic; ate, drank and dressed well; enjoyed opera, theatre and adventurous travel; and loved his two wives, three sons, two grandchildren and lifelong friends. He will be missed. The Honourable Risa Levine
Bryan F. Ralph, K.C.
Bryan Ralph died on November 4, 2022 at age 81. Bryan was diagnosed with Alzheimer’s and Parkinson’s in 2012 but was able to continue living a meaningful life with the help of the Alzheimer’s Society, his family and a part-time private caregiver before entering residential care at Evergreen House in North Vancouver in 2018. Bryan was survived by his loving wife of 56 years, Barbara; his daughters Sara (David) and Alison (Tim); and his treasured grandchildren Jay, Macy, Kai and Rowan. A celebration of Bryan’s life was held at Mount Seymour United Church on Tuesday, November 22, 2022. Bryan was born in Victoria and lived and was educated there. He inherited his considerable musical talent from his mother, the church organist. He played trombone in his elementary school band, in his junior and senior high school bands while at Victoria High School, and in the Victoria Youth Band. He enrolled in Victoria College, which became the University of Victoria in 1963. He graduated in 1964 in the first class from the “new” university with an arts degree in political science and psychology. He was the valedictorian for the graduating class. Bryan then moved to Vancouver to enter the law school at UBC, where he was a valued member of the debating team. He graduated in 1967 along
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with classmates Gavin Hume and Warren Wilson (who were later presidents of the Law Society), Elizabeth Edinger (who became a longtime faculty member at UBC Law) and noted lawyers Russ Chamberlain, David Winkler and Jim Carphin. He and Barbara made their home in North Vancouver where Barbara taught school and they raised their family. In 1980, they moved into a home with a commanding view above Deep Cove. Their annual carol ship parties became an institution for families and friends. Bryan articled to Charles S. Hopkins of Sutton, Braidwood, Morris, Hall & Sutton. Following his call to the bar in May 1968, he practised with that firm until October 1970, when he went to work with the Legal Aid Society. Bryan then began a lifelong commitment to legal aid, first as staff counsel and later as associate director and then executive director. In 1974, the provincial government formed the Legal Services Commission. On October 1, 1979, the Legal Aid Society and the Legal Services Commission were merged by legislation to form the Legal Services Society. Bryan was named the first executive director of the society. Duncan Shaw, K.C., the first chair of the Legal Services Society, said this of Bryan: I had the pleasure of working closely with Bryan. I saw him work with staff and clients on a daily basis and saw him provide quiet inspiration, leadership and judgment that was exemplary. I saw how the staff reacted to him with immense respect. I saw how he worked with the directors, providing common sense advice in regard to the issues we had to address. He had our confidence and it was well earned.
In January 1983, Bryan moved from the Legal Services Society to the law faculty at UBC, where he served as the director of the UBC legal clinic and taught criminal law. The Law Students’ Legal Advice Program had been established in 1969 by students at the faculty and had originally operated as a summer clinic called Vancouver Inner-City Services. Later, the program expanded to include a small number of clinics operating year-round. In 1978, the program was incorporated as a non-profit, the Greater Vancouver Law Students’ Legal Advice Society. Under Bryan’s leadership, the number of clinics increased and the services available expanded. While at UBC, Bryan was commissioned by the federal Department of Justice to write a report on legal aid and the Young Offenders Act. Even after he was appointed as a B.C. Supreme Court judge, Bryan maintained an interest in the provision of legal aid: he spoke at the 2001 Law Society of B.C. / Canadian Bar Association Pro Bono Initiative Conference, “Pro-Bono Forum – For the Public Good”, and was a director of Pro Bono Law of BC between 2006 and 2008. Always a scholar with a keen intellect and always interested in travel, Bryan took a leave of absence from the Legal Aid Society in 1975 to move
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to the United Kingdom with Barbara and their two very young daughters to obtain in 1976 a master’s degree in law at the London School of Economics. Barbara tells of a vacation they spent one Christmas in Tunisia where they reluctantly but emphatically declined an offer to trade their blonde, blueeyed baby daughter for 50 camels. Ralph family travels were extensive, including trips to New Zealand, Cyprus, China and Scotland. They also spent many enjoyable days at their cabin at Mount Baker where skiing and Scrabble with friends were enjoyed. In 1985, Bryan moved to the Law Society to serve as deputy secretary. He became secretary in 1988 when Frank Maczko was appointed to the bench. In the May 1997 Advocate, his tenure at the Law Society was described as follows: “At the Law Society, Bryan served the profession with thoughtful, careful and always compassionate service.” His friend and colleague Jack Olsen, who worked for and with Bryan at both the Legal Services Society and the Law Society, described Bryan as “a role model—someone who considered every perspective before making a decision, had innate good sense, was utterly without pretension and, although conciliatory, could be tough and take a stand when it was necessary.” Robert Dick, K.C., the treasurer of the Law Society in 1991, said: It was part of the secretary’s job to teach each new master treasurer the ins and outs of the position of master treasurer, and to keep the rest of the benchers focused on their responsibilities in governing the legal profession in British Columbia. The approach that Bryan took to getting things done was by quiet persuasion. I wouldn’t characterize Bryan as being shy, but rather that he had a quiet and calm manner about him that was very effective in persuading people to get things done. When you accomplished something good that Bryan wanted done, he often left you with the impression that it was all your own idea in the first place, and he gave you all the credit. It was during Bryan’s tenure as secretary that the Law Society bought their new building at 845 Cambie Street. The responsibility for the gargantuan task of planning and executing the move of all of the Law Society’s functions to the new building fell upon Bryan’s shoulders, and he did a wonderful job. In particular, I remember he was determined that the Continuing Legal Education Society of British Columbia and its operations be brought under the same roof as the Law Society at the new premises. Bryan was a gentle soul and had an unassuming personality that attracted everyone to him. I will be forever grateful for his friendship and guidance while I was master treasurer.
That description of the characteristics of Bryan was universal and was held by fellow employees and benchers alike. Karen Nordlinger, K.C., says this about Bryan: “Bryan was a thoughtful, caring and careful man. He brought all of those qualities to the Law Society, and we are all the better for it. A personal recollection stands out for me. As a nervous public speaker, having to make speeches at call ceremonies and other Law Society
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functions was not my favourite part of being the treasurer. But seeing Bryan’s supportive smile as I approached the appointed place gave me such reassurance. It made a world of difference to me.” Her experience as counsel before Mr. Justice Ralph was no different: I appeared before him in court once in a high-conflict family matter and my client, the husband, who was feeling that he had no justice to that point in lower court proceedings, came away with a new appreciation of the process and told me after, quite emotionally, that he felt he had finally been heard by Mr. Justice Ralph.
Bryan’s years at the Law Society were not easy ones. There were times of tension and controversy regarding how the Law Society should deal with a judicial concern expressed about the ability of counsel to properly represent a client, the move of the headquarters building of the Law Society and the funding of the move, the steady reduction of governmental support for legal aid and the refusal of the special fund of the Law Society to fund an alleged claim. It was often the case that these controversies produced not only active debate but also some picket lines and very aggressive public protests. Throughout, Bryan provided calm, reasoned advice. In the words of Paul Simon, Bryan was always “The Bridge Over Troubled Waters”. However, on one occasion, he almost “lost his cool”. Ernie Brydon was a former RCMP member and was an investigator for the Law Society. He also provided “security” advice. He recounts this episode: As the investigator, part of my duties was to deal with any unruly persons at reception. We had a number of persons that gave me great concern. Valerie Morrow was a difficult problem, and while I was able on numerous occasions to talk her down and out of the building, there was an incident. It appeared that she was able to convince Bryan from reception to speak with her. She was ushered into his office and immediately threw a cream pie in his face. It splattered everywhere over him and the desk, walls, etc. She was quickly ushered out. Bryan said “no” to getting the police. He said he would clean himself up. “No, Bryan, you must go home and we will take care of cleaning up.” It took some convincing, but he eventually gave in and away he went until the next day.
The story remains a Law Society legend about the calmness of Bryan in trying times. Ernie Brydon also says this about Bryan: To this ex-copper, he was clearly a listener, smart and always a gentleman and empathetic. His ability to lead, guide and manage was never in dispute. It was truly a shock for all when he was appointed to the bench and his duties came to an immediate halt. Lots of long faces that day at the Law Society.
Bryan was appointed Queen’s Counsel in 1993, and was appointed as a judge of the B.C. Supreme Court on April 16, 1997. He sat in Vancouver until he retired in 2007. As a judge, Bryan never took himself too seriously.
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Barbara tells that, soon after his appointment to the court, they were driving home from a dinner out with friends when they were stopped in the lineup at a routine police roadside check-stop. As the officers were approaching their vehicle, Bryan commented that he really wanted to tell them that he was “as sober as a judge”. Bryan was a thoughtful, meticulous and empathetic judge. No litigant or lawyer ever left his courtroom feeling unseen or unheard. His decisions were seldom appealed and even more rarely overturned. After retirement, Bryan volunteered at the Mount Seymour United Church Thrift Shop and maintained his interest in the West Vancouver Concert Band, which he had helped found in 1969. Bryan always maintained his interest in music. Once appointed as a judge, Bryan played trombone in the judges’ band that performed annually at the spring conference. This annual hour-long after-dinner performance of music, songs and skits was led by Justices Humphries, McEwan, Bennett and Sigurdson. Like those four, Bryan had actual talent and musical ability, but he good-naturedly supported and put up with a cast of amateurs whose only real qualifications were enthusiasm and a lack of inhibition. Bryan probably left many rehearsals wondering what he had got himself into. Impresario (and herder of cats) Humphries had this description of Bryan’s efforts and contributions: Bryan was a founding member of the Supreme Court judges’ band, “No Reserves”, which performed for many years at court conferences. Bryan played the trombone and was the only real musician in the group, often standing back with a quizzical look on his face, trying to figure out how to steer the band politely in the right direction. Bryan was too unassuming and respectful to actually tell the band members what to do but fortunately his wife Barbara, who served as one of the stage techies, would provide the necessary gentle but firm advice, which was usually “Stand back from the mic, Jon, we can’t hear Bryan.” One difficulty the band had was that Bryan wasn’t familiar with a lot of the rock and blues songs they played, which likely speaks to a misspent youth paying attention to things that mattered. However, his extensive knowledge of music always stood him in good stead. A precise and thoughtful musician, he would invariably provide exactly what was required. He was greatly missed after he retired.
The profession and the province have lost a great man. The Honourable Grant Burnyeat, K.C.
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Ryan D.W. Dalziel, K.C.
On September 15, 2022, Ryan Dalziel, K.C., passed away suddenly in Quebec City. Ryan’s death shocked the legal community: he was but 40 years old and a generational talent at the peak of his still-flourishing career as a litigator specializing in appellate and public law. Ryan was born on May 3, 1982 to Colleen Dalziel, a teacher, and Craig Dalziel, a businessperson. Ryan was born in Victoria, but his stint there was short: in 1983, the Dalziel family moved to North Vancouver and shortly after that to the west side of Vancouver. Ryan would grow up there with his three younger brothers: Spencer, Jordan and Taylor. Ryan was incredibly close with all of his brothers—they shared a love of mischief and gentle (and not so gentle) ribbing, as well as travelling together, and endlessly discussing sports, films, pop culture and world events with one another. Ryan was their big brother, providing them with support and advice about education and career development, but perhaps more importantly he was their friend. From an early age, Ryan was intellectually exceptional—a trait that would feature prominently in his work as a lawyer. By 15 months, he could recite the alphabet and count. By age 2, he could read—first street signs, then menus, then newspapers, then anything he could get his hands on. When Ryan was 4, Colleen bought Ryan an encyclopedia set that occupied him for hours. Ryan loved learning about the world. He became an excellent, if shockingly precocious, conversationalist with the adults he encountered. Ryan attended Carnarvon Community Elementary School through grade 7. In grade 8, Ryan entered what is now the University Transition Program at University Hill High School—a “radical academic acceleration preparation for early entrance to university studies … for students whose asynchronous educational and developmental needs exceed available services in regular classrooms”. By age 14, he had finished the grade 12 curriculum and was enrolled in undergraduate studies at the University of British Columbia. Age 14 also marked Ryan’s introduction to the legal profession. Through a family friendship with the firm’s then-managing partner, George Burke, Ryan got a summer job at Bull, Housser & Tupper (now Norton Rose). He worked first in their IT department and later in their library. This early introduction to big-firm life afforded Ryan the chance to get to know the lawyers and to
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observe—in his ever-studious way—how they worked. Ryan’s relationship with the firm and with George was a lasting one: Ryan spent most of his legal career at the firm (first as an articling student, then as an associate, and eventually as a partner and member of the firm’s executive committee), and would come to regard George as a role model and friend. In 2000, Ryan completed his bachelor of arts degree and began law school at UBC. He was only 18 years old. As he came into adulthood after an adolescence filled with intense study, Ryan embraced the social aspects of law school as much as he did the academic ones. Ryan was a regular at “beerups” and made many lifelong friends. Law school was also where Ryan began his first serious relationship, with Valerie Dixon. Valerie and Ryan would spend the next 14 years together travelling the world and enjoying each other’s company. They would eventually share a home and a dog, Lola. For Valerie (or, as Ryan would say, Vally), Ryan offered an irresistible combination of adventurousness, humour (both intelligent and incredibly basic), sensitivity, intellectual and emotional challenge, and ever-surprising insight into the human condition—both perfectly and imperfectly human, always. Even after their romantic relationship ended, they remained close. While in law school, Ryan’s love of reading found a new target: jurisprudence. Ryan would spend the rest of his life reading, absorbing and discussing case law. He always sought the deepest understanding of legal principles and concepts he studied, including their provenance and their fit with other aspects of the legal system. Ryan would often cast a wider net and read American case law on an issue he was grappling with, so that he could compare the U.S. and Canadian approaches (and, usually, criticize the Canadian one). He came to especially admire the caustic style of U.S. Supreme Court Justice Antonin Scalia—and was eventually known to adopt a similar style himself from time to time. Ryan’s love of case law served him well through two appellate clerkships—the first with Justices William Esson and Mary Newbury of the Court of Appeal for British Columbia, and the second with Justice Rosalie Abella of the Supreme Court of Canada. Ryan distinguished himself with his brilliant legal analysis and writing, his work ethic, his love of debating (not just legal issues but also movies, food, the state of the nation, fashion and countless other topics), his charm, his hilarity and his irreverence. On a shared elevator ride with Ryan, Finch C.J.B.C. once commented on his own, somewhat pedestrian weekend plans before asking the young law clerk what he liked to do on the weekend. Ryan responded: “I really just love to, you know, party”. (Chief Justice Finch would later become the sub-
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ject of a typically bold joke told by Ryan—to the entire 2004 BC Law Clerks’ Reunion Dinner—comparing the judge’s enviably full head of hair to a squirrel’s fur.) Ryan found himself with two important sets of friends coming out of his clerkships. He became very close with Justices Newbury and Abella, whom he saw as mentors and champions. He would lunch regularly with Justice Newbury for years. He also bonded with a number of his fellow clerks at both levels of court and developed lasting personal (and, in some cases, working) relationships with them. After his clerkships, Ryan began working at Bull Housser on a range of different cases in different areas of the law. He worked extensively with— and made himself invaluable to—Dan Webster, K.C., and Dan Bennett, K.C. Within a few years of practice, he had represented an eclectic assortment of clients—including Alcan, Adbusters, the B.C. government, the B.C. Civil Liberties Association, Vancouver Rape Relief Society and a credit union— and appeared opposite such luminaries as Joe Arvay, K.C., John Laxton, K.C., Geoff Cowper, K.C., and John Hunter, K.C. (now Justice Hunter). Even as a junior, Ryan left an impression on everyone. His legal analysis was always incisive, and often ingenious. And his expression of it was so colourful and clever—filled with metaphor, literary and historical references, and even song lyrics—that even those who disagreed with his perspective would pay rapt attention to it. One such person was Joe Arvay, K.C. Joe knew legal talent when he saw it, and saw it in Ryan. He and Ryan forged a friendship early in Ryan’s career. It centred around their shared enthusiasm for the law and love of advocacy. They enjoyed every opportunity they could find to work on cases together. Over the years, they litigated both with and against each other on topics ranging from transgender rights to corporate tax to civil justice reform, until Joe passed in 2020. Some of Ryan’s proudest work occurred in a 2008 case in which both he and Joe represented different aboriginal groups. R. v. Kapp concerned a non-Aboriginal man’s claim that his equality rights under s. 15 of the Charter were violated by a communal fishing licence granting members of three Aboriginal bands the exclusive right to fish in a particular region at particular times. The man had won at trial but lost on appeal. At each level of court, the case had been decided based on s. 15(1) (the Charter’s promise that every individual is equal before and under the law) and s. 25 (which protects rights and freedoms pertaining to Aboriginal peoples). In the Supreme Court of Canada, Ryan represented the Nee Tahi Buhn Indian Band. Ryan—alone among dozens of lawyers, including Joe, collec-
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tively representing more than 20 interveners—raised s. 15(2) of the Charter, a little-discussed provision that states that s. 15(1) “does not preclude” any law that seeks to ameliorate the conditions of disadvantaged individuals or groups. In response, a majority of the Supreme Court made s. 15(2) the keystone of its decision and reframed the test to be applied in s. 15 cases. Its reframing, prompted by young Ryan’s distinctive argument, breathed new life into equality rights claims in Canada. No matter the case, Ryan was compelling as an advocate. In oral argument, he was always prepared, composed, comfortable and articulate. In written argument, he was unafraid to defy convention and formality to make a point. Indeed, his point was often that the conventional way of looking at something was wrong, or at least inappropriately limiting. This passage from his factum in an insurance case well illustrates his inimitable, imaginative style: In the result: in the special context created by this scheme, insurance coverage can in fact be like Schrödinger’s cat – it can be both alive and dead. Two things can be true at the same time. It can be true that an insured who is in breach cannot say he is covered, because of the things he has done and the clarity with which the insurer dealt with him. At the same time, it can also be true that an insurer cannot say there is not coverage, as against a claimant on the policy who can establish estoppel. In this web of relationships, coverage can sit in superposition: it can be both there, and not there, depending upon who is asserting coverage and the circumstances in which he is doing so.
Over his too-brief career, Ryan’s exceptional skills made him a leading lawyer not just in British Columbia but also across the country. His name appears on more than 75 decisions of the courts of this province and 20 decisions of the Supreme Court of Canada, plus decisions of the Tax Court, the Federal Court and Federal Court of Appeal, and the courts of Alberta and Ontario. In 2019, when the B.C. government began a move toward no-fault benefits for those injured in motor vehicle accidents, the Trial Lawyers Association of B.C.—on behalf of hundreds of lawyers who frequently represent injured individuals—chose Ryan to represent their interests. In 2020, Ryan was appointed King’s Counsel by the Attorney General of B.C. in recognition of his exceptional professional merit, contribution, integrity and character. He was only 38 years old. The prominence and demand that Ryan enjoyed as an advocate did not stand in the way of his giving back. To the contrary, Ryan so passionately wanted to right wrongs and to see the law develop properly that the business aspects of the profession were often far from his mind. Over the course of his career, Ryan performed thousands of hours of pro bono work on
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behalf of a number of advocacy organizations, including in particular the B.C. Civil Liberties Association, as well as for individuals in need. Ryan’s desire to take on worthy issues actually led him to co-found a whole new organization, Canadian Association for Progress in Justice, that could intervene in cases of interest. Ryan also gave back through his mentorship of others. Highly talented younger lawyers flocked to Ryan at Bull Housser/Norton Rose and the boutique to which he eventually moved, Hunter Litigation Chambers. He was also a passionate coach of the Peter A. Allard School of Law’s Gale Moot team over many years. As the students embarked on their legal careers, Ryan sought to offer each not only a crash-course in first-class appellate advocacy, but also warmth and camaraderie. In many respects, Ryan lived a professional lifetime despite his untimely passing: he had a full career—fuller perhaps than the career of many who finish at a much older age—in terms of hours devoted to the law, number of court appearances and number of people impacted and mentored. And he left a huge mark on the law. He pushed it forward—made it better—through his superlative dedication and advocacy. The Honourable Robert J. Bauman and Michael A. Feder, K.C.
R. Stuart “Tookie” Angus
Brilliant. Tough. Generous. Just a few of the epithets used to describe the life and career of Robert Stuart “Tookie” Angus. Those who worked with him respected him, and those who knew him well loved him. Tookie died on March 24, 2023. He lived a full and rich life and left behind many devoted family, friends and clients. Tookie was a husband, father, brother, friend, mentor, rugby enthusiast, angler, storyteller and philanthropist. He was also one of Canada’s great mining lawyers, a real giant in the mining industry.
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Tookie had a unique and always interesting life. His parents, Ian and Mary Angus, had moved from Victoria to the Dominican Republic to operate the Ozama Sugar Plantation, which was then in the control of BC Sugar. Tookie had a lengthy connection to the sugar industry. His father’s aunt was Mary Isabella Angus, the daughter of R.B. Angus, a member of the board of the Canadian Pacific Railway and the Bank of Montreal and instrumental in financing BC Sugar. Mary Isabella married B.T. Rogers, BC Sugar’s founder. Tookie was born in Ciudad Trujillo, Dominican Republic in 1949 and lived on the plantation. He was the third of eight children and the family lived on the island for eight years. The dictator Raphael Trujillo asked the company and the Anguses to leave the country and Tookie and his siblings settled in Lethbridge after a brief sojourn in Raymond, Alberta. The family then moved to British Columbia. The three eldest children went off to school in Victoria: Mamie to Norfolk House for Girls, and Tookie, with his older brother Ian, went to St. Michaels. The children did not particularly enjoy this time but remained in close contact as they had been all their lives. A few years later, in 1961, Tookie and his brother enrolled in Shawnigan Lake School and Mamie in Strathcona School for Girls on Shawnigan Lake. They were all happier and Tookie excelled as a student, excelled at Latin and Greek (law now was inevitable) and blossomed as a young man and an athlete. In the summers, Tookie worked as a copy boy at the Vancouver Sun. He entered UBC law school in 1970 and graduated as part of the distinguished class of 1973 (the class of 1974 characterizes itself in the same way). During law school, he married Helen Simpson, beginning a very loving and happy marriage of 52 years. They had two children, Hamish and Amy. During one summer, Tookie worked at Owen Bird. He later did his articles with Bull, Housser & Tupper, where he went on to work as a young lawyer and partner. He worked with Jurgen Lau, who had specialized in mining law, and Tookie quickly took on significant work. One story goes that he looked so young (he always did) that he took meetings by phone rather than in person so clients would not realize how young he was. But Tookie was always direct and brash in his loving and disarming way. His client and longtime friend Ross Beaty first met Tookie when Ross was unsuccessfully applying for articles at Bull, Housser and tells a story that captures Tookie’s brash kindness and directness. I first met Tookie while interviewing for an articling job in 1978. Following my second year at UBC law school, I’d been working as a geologist in northern B.C. all summer and only had two days in town to find an articling job. Tookie was on the panel for my first interview at Bull Housser. When I was asked what I wanted to do after articling, I said, “Start my
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own mineral exploration company!” Jaws dropped. Tookie came up to me after and said, “Ross, that was the worst interview I’ve ever heard. You were supposed to say, ‘Build a big mining law practice with Bull Housser!’” I did that at my next interview (with a different firm) and got the job. Tookie was 29 years old then, but it was quintessential Tookie: giving good, practical advice graciously and gratuitously. He did that all his career, though not always gratuitously. In fact, another friend and client, investment guru Rick Rule, said, “I don’t think Tookie ever really worked a day in his life because he was so involved in what he was doing.” He added, “And don’t get me wrong, he had a black belt in billing, but he wasn’t just there for the money.”
But what about the nickname? When he graduated from law school, Tookie saw it as an opportunity to be taken more seriously and use the name Stuart. A friend recalls starting articles after him and hearing him in the old elevator at 675 West Hastings being referred to as Stuart. It didn’t work! Tookie was the name that he had been called from the time he was a baby. His sister was not sure if it came from their mother or the smaller kids not being able to say his actual name. Either way, it stuck for life. And there was only one Tookie. Hank Snow sang, “I’ve been everywhere”, and while Tookie did not go everywhere, he did go to an awful lot of places on the legal and mining map of the world. After beginning his law career with Bull, Housser, Tookie started his own firm, Angus, McClellan and Rubenstein. When his firm was acquired by Smith-Lyons, he joined Stikeman Elliott for six years and finally Fasken, where he led the mining group that was recognized as being the “best global mining unit” by the International Who’s Who of Business Lawyers. Mining made him a world traveller for projects: he visited countries including Australia, Peru, Chile, South Africa, Eritrea, Russia and Papua New Guinea. In the course of his work, he directed mergers and acquisitions work for Endeavour Financial while being a corporate director with a number of extremely successful mining companies such as First Quantum, Bema Gold, K92 Mining, Canico Resources, Nevsun Resources, Ventana Gold, Plutonic Power, Sun Summit and Kenadyr Mining. He also served as chairman of the board of BC Sugar Refinery. In sum, Tookie was a vibrant, dynamic and brilliant business lawyer, and an integral part of the Vancouver and Canadian mining scene for decades. We all know that Tookie was successful in his chosen line of work, but why was that? A longtime friend put it this way: Tookie’s real expertise, where he gained a global reputation, was in working on mining company mergers and acquisitions—structuring, advising and managing dozens of major deals valued at more than $8 billion. He was passionate about the business. He travelled to mining sites and con-
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ferences all over the world, read mining journals, invested in the industry and was a valued board member to countless companies large and small. His real secret to success was his interest in the people in the industry, the big players and the small ones. People liked dealing with him because he knew the industry intimately. He also had a special skill of getting deals closed, something not all lawyers know how to do. He was great fun to work with, full of stories and yarns about the characters he’d worked with and the money he made or lost with different stock speculations. He was full of life and a real delight to be with.
Helen and Tookie retired to Sechelt in 2006, but his world just took off after this. While he had planned to retire to a quiet life on the Sunshine Coast, some of the biggest deals he did were after this point. Even though his retirement from the business world did not last, his dedication to his retirement style did. He let his hair grow long and he traded his Oxfords and suits for sandals and Hawaiian shirts. When he would turn up to a board meeting in downtown Vancouver in this fashion, he would be asked by his colleagues if he was taking the piss. He’d shrug innocently and reply, “No, I think I look nice.” But Tookie was not all work. Far from it. Tookie was generous and cared for people. We could go on at length to describe the richness of his life and the richness he brought to the lives of so many others. With his warm, inclusive nature he made friends with people of all types, backgrounds, colours and creeds. He advised First Nations communities and made many friends. He was a lifelong philanthropist supporting women’s issues, Lions Gate Hospital, the Vancouver General Hospital and UBC law school. The examples of his generosity go on and on. Tookie had eclectic interests. He loved to read, collect art and do Pilates. He treasured his time with his family and friends. He was consistently open to offering legal opinions and advice on personal issues for friends and family. But he did not just offer advice. He went out of his way to help and provide not only advice but also moral support, guidance and financial assistance to many friends and for family members’ children’s education. Tookie is survived by his wife of 52 years Helen, his daughter Amy and son-in-law Dan, his son Hamish, his grandchildren Billy and Jackson, and his brothers and sisters Mamie, Ian, Susan, Elizabeth, Hamish, Sandy and Sally. His family, the Canadian legal and mining industries and his many friends are poorer without him but richer for knowing him. Mamie Angus, Ross Beaty and the Honourable Jon Sigurdson
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Ingeborg Elisabeth Lloyd-Meyer
Ingeborg Elisabeth Lloyd-Meyer passed away on July 10, 2020 at the age of 88. Inge often said she never expected to live past her sixties, but she carried on with great energy and good humour for the next two decades, despite various health problems. When she died, her longtime friend Lynne Dollis, retired Provincial Court judge from Prince George, began writing her obituary. Unfortunately, Lynne became ill and could not finish the task. Lynne passed away herself last summer. Friends of Inge and Lynne, along with Inge’s daughter Vett, collected the materials Lynne had started on. Lynne wanted to write Inge’s obituary because she thought Inge had lived such an interesting life. There’s no question about that. Born in 1931 in Sumatra in the Dutch East Indies (now Indonesia) to a Swiss engineer father and a Dutch teacher mother, Inge accompanied her parents and her brother John back to Switzerland before World War II began. During the war, her small Swiss village, Schaffhausen, which was surrounded on three sides by Germany, was bombed by the Americans, who assumed it was part of Germany. Forty civilians were killed, and President Roosevelt apologized and quickly offered $4 million in reparations. Despite this dreadful error, Inge’s mother helped to hide many civilians and Allied airmen, at great danger to herself and her family. She refused to allow Inge to speak German at home once Germany invaded Holland. She would respond to Dutch only, requiring the rest of the family to learn the language very quickly if they wanted dinner. The family moved to Bern, where Inge attended high school. She was an extremely bright student and was selected to attend further training in languages. Inge spoke six languages, but it amused her to tell everyone that she spoke all of them with an accent, due to the various family relocations. Even into her eighties, Inge still attended school reunions in Switzerland. After high school, Inge worked in a law office, translating documents. She applied for entry to the United States but was refused on the basis that the quota for Indonesians was filled. She was granted entry to Canada and sought work at various law offices in Vancouver. One office refused to hire her because she had an accent. Inge pointed out that she did not type with an accent.
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Inge married Tony Lloyd, and moved with him to the Caribbean until they returned to Vancouver where their two children, Vett and Rhys, were born. They separated soon after Rhys was born. Inge intended to obtain a master’s degree in comparative literature, and won a scholarship to study in Greece, where she became fluent in Greek. She could also read and write ancient Greek. She returned to Vancouver with her two children and, in the interest of earning a living, started law school, reluctantly passing up the Ph.D. program into which she had been accepted in the United States. She completed her master’s degree in comparative literature in the summer between her first and second years at law school. Finding articles as a single mother with two children in the late ’70s was not an easy task, but Inge eventually accepted articles at the Department of Justice, where she stayed throughout her career as a tax lawyer, acting for Her Majesty. Inge developed a reputation as an extremely knowledgeable, thorough and hardworking colleague, doing her share of travelling throughout the province, lugging heavy briefcases. She was also known as a fair, open and collegial adversary. When she retired, the private tax bar gave her a wonderful retirement lunch. Inge appeared many times in the Federal Court of Appeal, winning all her cases there except the last one. Before giving judgment in that case, the judges apologized to her for spoiling her perfect record. One of Inge’s colleagues recalled: Inge was generally unfazed by the antics of legal opponents. However, once when at a private firm to discuss a case, she somehow felt the tactics crossed a line. Inge stood up and said with calm dignity, “We are leaving now.” When asked what she meant by “we” when she was on her own, Inge, as she made her exit, replied, “The Queen and I.”
After Inge retired, she moved to Parksville to be near her friend Jan. There, Inge became involved in the community in many ways and continued her ongoing love affair with rescue dogs. She was instrumental in setting up the local Elder College, was an avid weaver and generously supported nearby Milner Gardens through her volunteer work. Her birthday parties, usually held at Milner Gardens, were large and noisy, with great food and an eclectic guest list, many travelling from the mainland to be there. Always present was Ursi, her close friend and confidante since she and Inge had sat together in high school in Bern, where they were often disciplined for disrupting the class with their giggling. Inge was always fond of parties, especially on the summer solstice. Once, while still in Vancouver, she held a potluck in which each guest was required to bring a dish from a book of ancient Roman recipes she had
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found somewhere. On that occasion, the company was much better than the food. Inge’s colleagues, most of whom were also good friends, remember her as a thoughtful, loyal and generous person. From the times she and Ursi were disciplined in school for giggling, to the boisterous gossip sessions in her office after court, she loved to share belly laughs, often at her own expense. She is greatly missed. By the Honourable Mary Humphries, Lynne Dollis, Wendy Yoshida and Vett Lloyd
Robert Alfred Deering
Robert Alfred Deering (“Bob” to all) passed away on June 24, 2023, at the North Shore Hospice after a long battle with cancer (the last of many challenges and perhaps the only one Bob could not overcome). Bob was born on November 11, 1944 in Vancouver and was raised by his single mother in West Vancouver. In his early years, he was adopted by stepfather Sandy Doering (later Deering), a man whom he loved dearly. Bob’s childhood in West Vancouver and at Hollyburn Elementary and West Van High was full of high jinks and adventures, including toboggans, guns and cars. Eventually a run-in with a high school teacher over Bob’s ’55 Chevy and its cargo of beer resulted in Bob being expelled from high school. As a youth, Bob took on various jobs to bring in some much-needed income including delivering papers, bagging groceries and working in a dairy making yogurt and cottage cheese (he wouldn’t touch it for the rest of his life). Bob went on to work as a faller for his dear brother Rudy, working mostly on the West Coast of Vancouver Island. There, a conflict with Rudy over Bob’s request for a raise was resolved by a log-rolling battle—Bob got the raise. Later it was Rudy who convinced Bob that he was too smart for that work, and that he should go to university.
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Bob followed that advice. Whether he actually graduated from high school is lost in the sands of time. Reputedly, his entry to Simon Fraser University was sealed after an arm-wrestling challenge with the chancellor. At SFU, Bob studied political science. It was at SFU where Bob also met and married his first wife Vicki. Married student life was tough, and like some others, they apparently survived on macaroni and cheese. One marital dispute ended up with the mac and cheese being thrown on the floor and a stand-off for days before it was cleaned up. Not sure Bob won that battle. Bob and Vicki went on to have two fine sons, Mark and Chad, and Vicki taught for 20 years in West Vancouver where she was much loved. After getting his B.A. from SFU, Bob was offered entry to a master’s program in the United States. Fortunately for us (but less fortunate for the advancement of political theory), Bob chose UBC law school, graduating in 1971 and being called to the bar in May 1972. Bob articled with Graham Wright of Mann and Wright, and after a brief period on his own joined Keith Benson and John Fiddes at the firm of Brown Benson and Fiddes. Initially, the firm had offices in the Georgia Medical / Dental Building, later moving to the then IBM Tower at 701 West Georgia where Bob and Fiddes had adjoining west-facing offices on the 14th floor overlooking the rooms of the Hotel Georgia. From time to time this provided distraction from the practice of law, with cries of “Hotel!” when the action heated up. Bob’s early practice was a mixed bag. A collections job involving a trucking company involved a revolver being drawn on Bob. He stuck his finger in the barrel and collected his client’s money. A matrimonial file had Bob going hard after the husband and achieving a good result for his client, the wife. Nevertheless, Bob earned the respect of, and became good friends with, the husband, who was an executive at the Insurance Corporation of British Columbia. The connection contributed to Bob developing a thriving ICBC defence practice focusing on complex litigation. Bob was like that—he made friends, not enemies. In 1991 and 1992 Bob served as president of the Trial Lawyers Association. It was a measure of the respect with which Bob was held that he should be elected to that position when primarily a defence lawyer. After many happy years at Brown Benson, the partners closed that firm in 2010 and Bob moved on to Dumoulin Boskovich, where he continued to work with his usual industry (always the first in the office to put on the coffee). There, Bob worked a full caseload of high-complexity personal injury cases (known internally as “Bob’s Specials”) until his retirement in 2020. As with all who knew and worked with him, he was known there for his unwa-
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vering enthusiasm, smile and support. Even after retirement he was called on for advice on the remaining “Bob’s Specials” he had left with the firm. Outside of the law, Bob had many interests, especially sports cars, skiing, boating and travel. Bob was particularly a fan of Porsche 911s. But stock was not good enough for Bob, who was never satisfied until he had modified the car until it was “scary fast”. Sometimes Bob would sell his cars to friends, one of whom would later discover that Bob had hidden lingerie under the seats so as to cause him marital discomfort. Bob had to work hard for everything in life, but he was never afraid of hard work, which he undertook with humour, grace and dedication, making friends and devoted clients all along the way. Bob’s common touch from his logging days enabled him to relate to clients in all walks of life. Bob remained a relentless optimist—planning travels, planting apple trees and entertaining until the end. For many of us friends, the lasting image of Bob will be a picture of him on the deck of his West Vancouver home, BBQ tongs in hand, attending to his signature ribeye steaks and sharing a fine bottle from his cellar. Bob is survived by his two sons Mark and Chad, by his dear wife Susan and by the many lasting memories. We will miss you, Bob. Michael V. Barnard
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LOOKING FOR MORE “OF INTEREST TO THE LAWYER AND IN THE LAWYER’S INTEREST” BETWEEN ISSUES OF THE ADVOCATE? To automatically receive updates from the Advocate on Facebook, just “like” our page (https://www.facebook.com/TheAdvocateBCMag/). In addition, if you are a user of X, formerly known as Twitter, you can follow @AdvocateMag (https://twitter.com/AdvocateMag) to receive updates. Instagram: <www.instagram.com/advocatebcmag> HOPING TO READ THE ADVOCATE ONLINE? The current issue of the Advocate is available. Click the cover on our homepage www.the-advocate.ca and enjoy the Advocate from your computer, smartphone or other device.
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Paul & Company 172 Battle Street, Kamloops, BC V2C 2L2 www.kamloopslaw.com
WHEN CONSIDERING MEDIATION, EXPERIENCE COUNTS With over 900 mediations and a career spanning four decades, David Paul, K.C. has a proven record of results resolving disputes in diverse legal areas: F Family Law F Civil Litigation/Personal Injury F Estate Disputes (including the estates of Indigenous Persons) F Construction Disputes David A. Paul, K.C. (B.GS., LL.B., LL.M., RRM) Court delays and the high cost of litigation should be pointing you and your clients to a mediated settlement. David Paul can help parties resolve matters effectively in person or in an online forum, lowering costs for all parties, while still maintaining confidentiality. F Over 36 years of courtroom experience F 29 years of mediation experience F Modern, secure technology emulating CALL 250-828-9998 CALL 250-828-9998 face to face communications at any dpaul@kamloopslaw.com location dpaul@kamloopslaw.com F Competitive rates F Mediation facilities available
WHEN YOU NEED THE FACTS Our members offer investigative expertise in: • Automotive & Property Investigations • Background, Due Diligence & Social Media Investigations • Workplace Investigations • Patent & Trademark Infringement Investigations • Surveillance • Locates • Will Say Statements, Scene Examination & Document Service • Relational & Child Custody Investigations and much more!
Established in 1995, our members are all licensed and operate under a Code of Ethics and Professional Conduct. For more information, please visit our website
www.piabc.ca
The Professional Investigators’ Association of British Columbia
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Experienced civil and family litigator offering flexible contract-based trial services. Services adaptable to the level of support needed, including assuming conduct of trial.
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NAZANIN ARAM 604-807-5551
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in Scottsdale Mall, Delta, B.C.
CONTACT Charlene Hood Notary Public
SOUTH OKANAGAN PARTNERSHIP OPPORTUNITY Well established busy award winning South Okanagan General Practice seeks an experienced Family/Litigation Lawyer and a Real Estate/Estates Solicitor with a view to the future and possible Partnership/Ownership opportunities for the right candidate(s). PLEASE CONTACT PAT@BELLJACOE.COM
PROVIDING CIVIL ENFORCEMENT SERVICES FOR OVER 50 YEARS • Filing your Court Order at the Court House • Executing all Court Orders © Writs/Orders of Seizure and Sale, Writs of Possession, Forced Entries, Writs of Delivery, Sale of Land, Ship Arrests • As well as all other forms of Commercial Civil Enforcement © Rent Distresses and Terminations, Warehousers Lien, GSA’s and PPSA’s
604.434.2448
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GEIGER LAW PRACTICE SALES Lower Mainland DOWNTOWN VANCOUVER FAMILY/MEDIATION AND SOLICITOR’S PRACTICE – New on Market This practice has been providing Family Law, Mediation and Business Law services to its clientele for over 25 years. The practice is 70% Family Law and Mediation with the remainder constituted of Wills/Estates and Corporate/ Commercial Law. The seller is a well-respected practitioner and the clientele are typically high income individuals. The practice refers out all Real Estate law; the purchaser could easily expand the practice by retaining Real Estate files. The practice location could be retained as a “turnkey” situation or alternatively the practice/client list could be incorporated into an existing practice located elsewhere. TRADEMARK PRACTICE – FOREIGN CLIENTS REGISTERING IN CANADA – New on Market The seller enjoyed a long career as an IP lawyer/trademark agent both inhouse and in government positions. Following retirement from full-time practice 3 years ago, the seller has maintained a part-time Trademark Law Practice. The seller works approximately 15 hours per week, and deals exclusively with foreign clients registering trademarks in Canada. This practice has minimal overhead as it is completely internet based. The seller works from a home office. Although it is currently based out of B.C. the physical location is not being transferred and the buyer could be located anywhere in Canada. The buyer needs to be a Registered Trademark Agent in Canada. The seller registers Trademark applications, handles Office Actions, Opposition proceedings and section 45 Cancellation Proceedings. This is a great opportunity for a Trademark Agent wishing to work part-time and build the practice further; alternatively, an existing Trademark Law practice could increase its footprint by taking over the client list.
FOR INFORMATION ON ADDITIONAL PRACTICES FOR SALE, PLEASE VISIT geigerlegal.com Contact Kathy Geiger regarding succession planning, practice sales and valuations at
geiger@lawyer.com 613-864-4701
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LEGAL ANECDOTES AND MISCELLANEA By D. Michael Bain, K.C.*
IMAGINE NO (PRESUMPTION OF) POSSESSION The adage that “possession is nine-tenths of the law” still leaves aside that helpful one-tenth of the law that might come to the aid of an owner whose property has fallen into the wrong hands. Consider the situation involving an Italian watch collector, living in Hong Kong, being sued in Geneva by a Japanese national living in the United States.1 The issue is current ownership of a very expensive watch purchased in Germany from a now defunct auction house that had acquired the watch from a Turkish national. The watch in question is a very rare Patek Philippe Perpetual Calendar Chronograph ref. 2499, which (at the time of writing) is still held in escrow by a lawyer in Geneva while the ownership dispute (decided in favour of one of the parties in June 2023) winds its way through a second level of appeals in Geneva. The handmade watch (as the name suggests) contains a calendar that is perpetual; if the watch is regularly wound or simply worn (it is mechanical), it can continue to tell the sub-second, second, minute, hour, day of the week, date, month and even the moon phase without having to be reset, despite leap years and months with 28, 29, 30 or 31 days in them. Its time keeping is therefore perpetual. Such an impeccably crafted marvel of high horology (usually encased in silver, gold, rose gold, pink gold or in only two cases platinum) looks both stylish and elegant and is those two things that make it a collector’s dream: extremely rare and, more significantly, incredibly expensive. To give you some idea of just how expensive: in May 2023, a Patek Philippe 2499 sold at auction for US$700,000. That particular piece had
* D. Michael Bain, K.C., is the editor of the Advocate. He notes that Patek Philippe’s advertising slogan “You never actually own a Patek Philippe. You merely look after it for the next generation” is logically consistent with the lyric: “Imagine no possessions / it’s easy if you try.”
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belonged to “the man of 1,000 voices”, Mel Blanc, perhaps best known as the voice of Bugs Bunny. Another example of the 2499 (one of the two platinum ones) sold at auction in 2012 for $3.6 million. That specimen had belonged to mega watch collector (and mega guitarist) Eric Clapton. But what of the watch at the heart of the 2023 legal dispute in Geneva? Some experts think its value might eclipse the most money ever paid at auction for a watch: US$17.7 million for Paul Newman’s Rolex Daytona in 2017. In fact, one expert has suggested $40 million for this watch given its provenance and the fascinating story behind it. The Patek Philippe at issue in the Geneva lawsuit is the last gift Yoko Ono gave to her husband, John Lennon, for his 40th birthday, a mere two months before he was murdered in 1980. There are only two known photographs of Lennon wearing the watch— taken in rapid succession—where he looks quite pleased with the gift. The decision itself is fascinating. Written in French, the names and specific details of the watch have been redacted. However, the internet being what it is these days, it is not difficult to work out who the parties are or what is at issue in the case. For example, with a bit of knowledge and context, this paragraph can be deciphered: C_______ y a fait graver au dos l’inscription “_______” en référence à la première chanson “______” de l’album “______” que le couple avait composée en commun après une période de séparation.
As follows: Yoko Ono had the inscription “Starting Over” engraved on the back in reference to the first song “(Just Like) Starting Over” from the album “Double Fantasy” that the couple had composed together after a period of separation.2
After his death, Lennon’s belongings, including the Patek Philippe watch, were catalogued and became the property of his widow, Yoko Ono. The watch was placed in a locked cabinet in a locked room inside apartment 6 of the Dakota Building in New York together with other personal items belonging to Lennon (the list of items was over 1,000 pages long). Ono later employed a driver between 1995 and 2005. He was a Turkish national, Koral Karsan, and was arrested in 2006 for attempting to extort $2 million from her. He threatened to release embarrassing audio tapes he had made and also threatened to kill her and her son, Sean Lennon. Karsan pleaded guilty to a lesser charge and was deported to Turkey. Unbeknownst to Ono, Karsan had removed certain property belonging to Lennon from her Dakota Building apartment, and had taken the property with him to Turkey. In 2017, a Berlin-based auction house, Auctionata, went bankrupt. In distributing its assets, lawyers (and police) discovered 86 items of Lennon’s
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personal property in Auctionata’s storage. These items included eyeglasses and diaries that had been sold to Auctionata by a man named Erhan G. (German police did not release a last name). There was, of course, an 87th item that was not among the items recovered from Auctionata’s storage: Lennon’s Patek Philippe watch. As the recitation of facts in the Geneva court case reveals, Karsan had sold all 87 items to Erhan G. (also a Turkish national) in May 2010. Karsan went so far as to swear a statement that he had taken possession of all of Lennon’s items with the consent and at the request of Yoko Ono. When he “had to leave the United States”, he took the objects with him and at no time did Ono or anyone else ask for the objects to be returned. He therefore considered himself the owner and sold the items to Erhan G. Thereafter in 2013, Mr. G. reached a consignment agreement with Auctionata, noting that he could not guarantee the ownership of the watch or that Ono would not make a claim to it. Then, in early 2014, Auctionata agreed to privately sell the watch to an Italian watch dealer living in Hong Kong for €600,000 without putting it to a public auction. Part of that transaction involved the Italian dealer agreeing to sell more than 40 vintage watches to Auctionata. The Italian dealer next took the watch to Christie’s auction house in Geneva, where he inquired about selling it. He promptly handed over the watch for a valuation. Christie’s retained a Geneva-based company to put a value on the watch, and that company contacted Ono to inquire about the provenance of the watch. Ono was surprised. She thought the watch was still at home, locked in a cupboard. She was shocked and dismayed to find that the rare gift she had bought some 35 years earlier was missing. As the court put it: “This was the last gift Ono had given to Lennon before his assassination.” In 2017, Ono reported the watch stolen and had it listed in a stolen property register. When the 86 other items were discovered in Munich, German and international arrest warrants went out for Erhan G. and Karsan for dealing in stolen property. Ono testified at Erhan G.’s criminal trial. She said that Karsan had keys to the locked room, and the locked cabinet, but did not have permission to take Lennon’s possessions. However, she also testified that she had told Karsan that he could take a different watch that had belonged to Lennon. Erhan G. was found guilty of receiving stolen goods, and the criminal court found that he knew the watch might have been stolen. He was sentenced to one year in prison. Karsan, it seems, went on the run. Meanwhile, in Geneva, the court contended with the undisputed facts: the watch initially belonged to Lennon, Ono became the sole owner upon
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Lennon’s death, the watch came into the possession of Karsan in New York, Karsan transferred the watch to Erhan G. in Turkey, then it was sold first to Auctionata and then to the Italian dealer in Germany. The Italian dealer argued that the applicable law was Swiss—the watch being in Switzerland and the litigation being commenced there—and that the starting premise was that the one in possession owns the item. The court, however, upholding a decision of an earlier tribunal that held in favour of Ono, preferred a different approach, namely one that imagined no possession: In the context of the application of the rules of movable conflict, as a result of the movement of the matter from one country to another, the Tribunal’s reasoning based on the chronology of transfers to determine which right to which transfer is the only one that makes it possible to determine whether the final possessor (i.e. the appellant) can rely on the basis of the rules on the presumption of possession or not of the property. Consequently, the Court will take up this chronology, to the extent of the claims, so that the entry into possession by [Karsan] and its consequences will be assessed under the American law of the State of New York, the right of the place of location of the watch at the time of such transfer, where appropriate under Turkish law with regard to the possible acquisition by [Erhan G.]
The court went on to hold that there was no need to resolve the question of whether the Italian dealer was acting in good faith at the time of his acquisition of the watch or whether he was a bona fide third-party purchaser for value, since the finding that there was no gift from Ono to Karsan made the point moot. The court also suggested that the bona fides of the Italian dealer was suspect in any event given his description of himself on his own website as a “world specialist in collector watches”. Implicit in this comment is the fact that in watch collecting circles Lennon’s Patek Philippe was a “holy grail” of sorts to collectors both in terms of its rarity and in terms of its provenance. No one knew much about it other than the two aforementioned photos of it, and the owner did not even know it was missing for 35 years! Apparently, still one level of appeal remains for the Italian dealer—to the Geneva Federal Court. It seems unlikely that he will succeed in being able to retain and sell this rarest of Patek Philippe watches. The watch itself will likely revert back to Yoko Ono, who is 90 years old and recently moved out of the Dakota Building from where the watch was stolen. The current occupant of that apartment, Ono and Lennon’s 48-year-old son, Sean Lennon, will probably end up inheriting the watch from his mother, and in the unlikely event that it ever does come up for auction, you had better start saving now.
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ENDNOTES 1. Monsieur A v Madam C (Pouvoir judiciaire, République et Canton de Genève, Cour de Justice file no ACJC/727/2023) (June 7, 2023). 2. Lennon and Ono separated in 1973 and reunited in 1975. First song contenders on albums composed together are: “Two Virgins No. 1” (1969); “Cam-
bridge 1969” (1969); “John & Yoko” (1969); “Mother” (1970); “Imagine” (1971); “Woman Is the N***** of the World” (1972); and “(Just Like) Starting Over” (1980). Only the latter is a contender for the description, and the timing is right given the date the watch was gifted to Lennon.
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GEIGER LAW PRACTICE SALES BC/ALBERTA PRACTICES • ALBERTA – SOLICITOR/FAMILY LAW PRACTICE FOR SALE This 2 lawyer practice is located north-east of Edmonton and has been in operation for 15 years, consistently billing in the high 6 to 7 figure range. The practice is evenly split between Solicitor’s work and Family Law. Wills/Estates and Real Estate are in a growth phase. There is expansion opportunity into civil litigation. The practice boasts excellent support staff and a great reputation in the community. • VICTORIA SOLICITOR’S PRACTICE – New on Market • SURREY SOLICITOR’S PRACTICE • WEST KOOTENAY SOLICITOR’S PRACTICE • CALGARY MULTI-LAWYER PRACTICE • CENTRAL ALBERTA SOLICITOR’S PRACTICES
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FROM OUR BACK PAGES By R. Harger*
In this issue of the Advocate, we feature two articles from the late 1960s and early 1970s, where far-sighted authors grappled with certain issues that remain tremendously important today, as well as with other, more procedural ones, that have in part resolved themselves in ways we take for granted.
POLLUTION AND THE LAW* By R. Harger† Pollution arises as the result of the activities of people. It can be defined, from the standpoint of particular naturally occurring communities of plants and animals, as an increase in concentration of any substance beyond the ability of those living organisms to tolerate it. Such concentrations result in death by poisoning. Alternately, excessive concentrations of substances normally uncommon and growth limiting, such as trace elements or perhaps phosphates, can result in heavy algal growth in normally clear water. Artificial substances such as radioactive elements, DDT, etc., may also act as pollutants at specific concentrations. Such substances, since they do not occur naturally, act as polluting agents in any concentration even though their effect is not apparent until some particular concentration is reached simply because they are cumulative. For radio-
* R. Harger, was, at the time of original publication, Assistant Professor, Department of Zoology at the University of British Columbia. † Reprinted from (1969) 27 Advocate 269.
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active substances this concentration is relatively easily defined; substances such as DDT and other biocides, some of which possess a biological half-life which varies according to physical conditions, and some which critically affect living organisms at differing dosages, have, however, less easily defined lethal concentrations. The determination of the critical concentration of any potential polluting substance in all cases simply serves to define an end point in a process of potential accumulation. It is because even the smallest amounts of such substances effectively contribute to overall concentrations in the environment that legislation aimed at controlling such accumulation must be aimed at preventing initial release. In most cases it is known that living organisms are able to absorb a certain quantity of pollutants without ill effect. The particular concentrations necessary to generate widespread havoc of the character presently shown by Lake Erie is very often unknown since the experience which would allow such definition has yet to be gathered. What we do know is that living systems are, in a sense, in an adaptive balance with their physical environment and that it is possible to destroy that balance and consequently the systems themselves by continued pollution. If widespread destruction is generated by continued, uninhibited outpourings of industrial and domestic filth, we run the distinct possibility of ensuring our own extinction. Thus controls limiting the extent of pollution must necessarily be imposed to ensure our survival. Whereas it is necessary that we should be able to define “safe” or acceptable levels of various substances in the environment, it is essential that laws themselves be not dependent on supposed violation of such standards. This is because it is always possible to argue that: a)
the standard is technically inappropriate;
b)
the techniques used to estimate concentrations which are held to be in violation of such standards do not accurately reflect the reality of the situation.
Any concentration of undesirable material occurring in the environment must be estimated through an appropriate sampling technique whereby a small proportion of the whole is brought into the laboratory for analysis. The nature of sampling theory is such that it is always possible for an “expert” to argue that the way in which the samples were selected was not appropriate to the particular situation. Legislation must therefore be aimed at the source of potential pollutant production. It is little use estimating the concentration of a substance from,
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say, a factory after it has been released into a river—the release must be monitored from the outflow. The law itself must demand minimal traces of pollutant at the source. Pollution may also be defined from the point of view of “that which offends the senses”. In this case, the issue becomes not so much what living systems (including the human body) tolerate, as what will people refuse to put up with. Most communities function within laws which protect neighbouring property owners from the detrimental effects of a person erecting an inappropriate building in, say, a residential area. Unsightly pulp-mill haze could, therefore, be legislated against on the grounds that it contravenes the ethics of the community. No one person or group should be permitted to threaten the existence of all by engaging in activities that result in pollution. It is possible that there are many existing laws which could be so interpreted as to provide opportunities for people to initiate suit, against interests (public and private) which are actively polluting the environment. Such can best be brought to public knowledge by those who are familiar with them.
REFORM OF THE LEGISLATURE AND THE BUREAUCRACY* By Thomas R. Berger B.C.’s Legislature is the only one of its kind in Canada. It retains the character of a frontier Legislature—but that is because British Columbia is still in many ways a frontier province. The brawling and the insults are meat and drink to members of the House. It is an asset in the House to have a stentorian voice. Members without this advantage often spend most of their time on the fringes of audibility. But this is Parliament, B.C. style, and this is the way the people of B.C. want it. Yet I found in the Legislature that members on all sides felt that reform of the Legislature itself was essential. The call for a Hansard, a written record of debates, has become a symbol of this desire for reform. But some other changes are equally vital: The introduction of a daily question period is essential. The introduction of a fixed time for adjournment each night
* Reprinted from (1971) 29 Advocate 26.
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would put an end to the farcical late-night sittings. And the introduction of Government legislation early in the session so that members have an opportunity of reading Government bills, perhaps even (God forbid!) of studying them before they come up for debate, instead of leaving them to the dying days of the session and then rushing them through, would make a lot of difference to the Legislature. Now we know that legislation is going to be drafted by civil servants, and we can’t expect the MLAs to draft legislation, but MLAs should have an opportunity of giving adequate study to the legislation that the civil servants have drafted. But reform is required not only in the Legislature. We should be equally concerned with reforming the vast number of Government boards and agencies that carry out Government policy. These Government boards and agencies are as badly in need of reform as the Legislature itself. We have regulatory agencies that issue liquor licenses, censor motion pictures, certify and decertify trade unions; that licence taxi cab operators, graveyards and motor vehicles. We have Government boards and agencies that regulate the sale of securities, the insurance business, horse racing and credit unions. All of this is in the public interest. But there must be safeguards to keep these boards and agencies within the law, to ensure that the bureaucratic apparatus works for the people and not against them. I don’t want anyone to think that we would be better off without these Government agencies. Clearly they are essential agencies (though I think we could do without the censor of motion pictures). But reform is overdue. Anyone who has had experience in administrative law knows that you spend half the time groping in the dark, trying to figure out what evidence there is against your client. When such cases go before the courts, the battle must often still be waged there to find out why your client didn’t get his claim accepted, or why his licence to sell securities was taken away from him, and so on. There must be safeguards to keep these boards and agencies within the law. We need a uniform code of procedure to be applied to all of these boards and agencies, so that the citizen will know what his rights are when he is dealing with any of these boards and agencies, and what is just as important, so that those who administer these boards and agencies will know what their obligations are to the citizens whose activities they are engaged in regulating. To start with, the citizen should have the right to notice before any Government board or agency takes any action that would infringe his rights. Under the B.C. Hydro and Power Authority Act, B.C. Hydro has the right to expropriate a citizen’s land without notice. This means—and it has hap-
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pened in hundreds of cases—that a man’s land is expropriated by Order-inCouncil and the first time he finds out about it is when he receives a letter from B.C. Hydro telling him that he doesn’t own his land any more—that B.C. Hydro does. While the province must have the power to expropriate property, the citizen should be told before expropriation takes place, so that any objections he has may be considered. It is equally clear that the citizen should have the right to full disclosure of any evidence relating to his case. An ‘open file’ policy is essential. This would mean that every citizen would have the right to examine a file in any board or agency relating to himself or his rights. If there were to be any categories of correspondence or other documents that were to be kept secret from him, these would have to be approved by the Legislature. There is general acceptance today of the necessity for an Ombudsman. An Ombudsman would have the right to examine Government files to see if any injustice had been done in any given case. But the job is really too big for one man. Two years ago they established an Ombudsman in Great Britain, but the Ombudsman has made practically no impact on the way in which Government business is done in that country. His jurisdiction has been circumscribed, but even if that had not happened, it is quite obvious that it is beyond the powers of one man to do the job. This is not to say we should not have an Ombudsman, but it is to say that we should give to every citizen the same rights as we would give to the Ombudsman (if we had one) to examine the documents relating to his case. This would in many cases make the work of an Ombudsman quite unnecessary, because the knowledge that a citizen was entitled to look at the file in his case would be enough to ensure that all information would be disclosed to the citizen. In Sweden they have had an Ombudsman since 1809. In fact, they have two of them. The Ombudsman works well in Sweden, not simply because it is an office that has been in business for a long time, but also because of the fact that they have an ‘open file’ policy in Sweden. An ‘open file’ policy would be worth a carload of Ombudsmen. At the same time the citizen should have the right to submit evidence and to make representations, either through counsel or on his own behalf. I do not think that we can go so far as to say there should be a hearing in every case but, failing that, there should be an opportunity to submit evidence in writing in order to make every point that can legitimately be made on behalf of the citizen. The principle is obvious. This is what the Buttle Lake case was all about. The Pollution Control Board gave permission to Western Mines to dump mine tailings and sewage into Buttle Lake, where the people
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of Campbell River had their water supply, without giving the people of Campbell River time to obtain a report from the B.C. Research Council on the pollution of the lake for presentation to the Board. The principle is obvious—but it is remarkable how often it is not observed. Every board and every agency should be obliged to hand down reasons to support every decision that it makes. This would mean that the citizen would know exactly why he had been deprived of his rights if that were the result. The Labour Relations Board has made it a practice never to give reasons except in the most cursory fashion, for decisions that it makes. This is wrong, because for instance when employees join a union and the Board refuses to certify the union, the employees don’t know why the Board refused to certify it. Reasons should be required, because then the employees and their union would know where they stand. Mr. Justice Tysoe, in his report on workmen’s compensation, found that the Workmen’s Compensation Board had in the majority of cases failed to give adequate reasons, in plain English, for refusing claims. There really cannot be any excuse at all for this, but yet it goes on every day. The Workmen’s Compensation Board has to some extent mended its ways, but other Government agencies remain as inscrutable as ever. Finally, the citizen should have the right to appeal on questions of law to the courts or some other independent tribunal. It is obvious that, if an administrative board or agency is obliged to give reasons for its decision, it will be easier for the courts or some other independent tribunal to determine whether the board or agency has made an error in point of law or not. And if these boards and agencies know that their decisions are appealable, that they are not a law unto themselves, they will take far greater pains to ensure that they comply with the statutes which govern them. It is all very well to say that we are all bound by the rule of law, but it is necessary to establish safeguards to ensure that the rule of law is effectively applied to Government agencies. The best way to do this is to let the light of day in, to avoid any temptation to secrecy. This would safeguard us against abuse of administrative authority, and would put an end to bureaucratic immunity.
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BENCH AND BAR
B
ritish Columbia is the home of boreal chorus frogs, bullfrogs, Columbia spotted frogs, the Great Basin spadefoot, the green frog, the Northern leopard frog, the Northern red-legged frog, the Oregon spotted frog, the Pacific chorus frog, the tailed frog, the western toad and the wood frog. However, we admit that even if no amphibians whatsoever were found in British Columbia, the fact one of our former law school classmates challenged us to have a frog theme would mean you still would be reading much about them—as well as about members of the legal profession, of course—below. Enjoy!
Jessica T. Mank moves west to join Harper Grey, leaving McCarthy Tétrault’s Toronto office to do so. Stephanie E. Ovens returns to DLA Piper from a stint at Farris. Anthony (Tony) J. Eden moves from Hammerco Lawyers in Vancouver to join Nixon Wenger in Vernon. Joey Levesque shifts from Blakes to Osler. Mia Bertanjoli joins Gudmundseth Mickelson from the Department of Justice Canada. Michael J. Long starts up his own shop, MJL Family Law, having previously been with Farris. Also leaving Farris, Spencer T. Gair is now an associate with MLT Aikins in Calgary. Roza Milani leaves Overholt Law to join Mathews Dinsdale & Clark. Also landing at Mathews Dinsdale & Clark is Sherry Yu, who was with British Columbia Rapid Transit Company Ltd. B. Sunny Aujla leaves Hamilton Duncan to join Farris. Harry S. Meiteen moves from Bell Temple in Toronto to join Singleton Urquhart Reynolds Vogel in Vancouver. Michelle N. Moriartey is now with Farris, having left Legacy Tax + Trust. Lena Muratkina starts up Velawcity Legal Counsel after articles with Icon Law Group. Dar-
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.
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lene J. Sandhu opens her own firm, DSG Family Law, having previously been with England Lam Family Law. James Hankinson moves from Samfiru Tumarkin to HHBG Lawyers, where he will continue practising employment law. Justice David K. Jones and Justice Jennifer Lynn Whately were both appointed to the Supreme Court of British Columbia in August 2023. Justice Whately replaces Justice R.A. Skolrood (Vancouver), who was elevated to the Court of Appeal on October 20, 2022. Justice Jones replaces Justice G.C. Weatherill (Vancouver), who became a supernumerary judge effective August 7, 2022. Later in August, J. Gareth Morley was appointed to the Supreme Court of British Columbia to sit in Victoria. Justice Morley replaces Justice J. Steeves, who resigned effective June 11, 2022. Wikipedia tells us that while amphibians are “superficially similar to reptiles like lizards,…unlike reptiles [they] require water bodies in which to breed. With their complex reproductive needs and permeable skins, amphibians are often ecological indicators; in recent decades there has been a dramatic decline in amphibian populations for many species around the globe”. It adds: [t]he three modern orders of amphibians are Anura (the frogs), Urodela (the salamanders), and Apoda (the caecilians). A fourth group, the Albanerpetontidae, became extinct around 2 million years ago. The number of known amphibian species is approximately 8,000, of which nearly 90% are frogs.” In considering whether a particular area constituted a critical habitat, the U.S. Supreme Court learned more than perhaps it expected about the dusky gopher frog. Chief Justice Roberts, writing for the court, explained the frog’s name: “‘dusky’ because of its dark coloring and ‘gopher’ because it lives underground”. He continued: “It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes … . Less endearingly, it also secretes a bitter, milky substance to deter would-be diners.” Weyerhaeuser Co. v. United States Fish and Wildlife Service, 139 S. Ct. 361 (2018). The Swiss folk hero William Tell (for whom the William Tell Overture— a.k.a. the “Lone Ranger Theme Song”—was written) was not the first person to use an arrow to shoot an apple off the top of his son’s head. In fact, the first person to use this unique parenting technique was (according to Saxo Grammaticus) the Dane Palnatoki, who, in the services of King Harald Bluetooth, made several enemies among his fellow soldiers owing to
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his various virtues. Having boasted of his ability to shoot an apple off the top of a wand at considerable distance, Palnatoki was tricked by King Bluetooth’s son, who swapped Palnatoki’s son for the wand. Palnatoki was threatened with a beheading if he should have missed. He promptly drew three arrows from his quiver, neatly shooting the apple with his first attempt. When King Bluetooth asked him why he had drawn three arrows, Palnatoki explained that the second two were to avenge his son’s death in the event he had missed. “We All Stand Together” is a children’s song attributed to Paul McCartney and the Frog Chorus (in fact, the frogs were the King’s Singers and the London Community Gospel Choir, because frogs cannot typically sing in English). It went to number 3 in the U.K. singles chart but only number 12 in Belgium. The song features in the animated short film “Rupert and the Frog Song”, which won a U.K. British Academy of Film and Television Award for Best Animated Short Film in 1984: <www.youtube.com/watch?v=gVfaf43W9cM>. Negar Azmudeh, formerly with the Immigration and Refugee Board of Canada in Vancouver, was appointed a judge of the Federal Court. The Order of British Columbia is a civilian honour for merit in British Columbia. Trailblazing lawyer Susan Paish, K.C., of North Vancouver, received this honour for her incredible career and contributions to the profession. House Bill 830 (2013), which led to adoption of the pine barrens tree frog as North Carolina’s state frog, lauded that frog as having “been considered one of the most striking and beautiful frogs in the Southeast region of the United States”. The frog is not, however, the state’s official amphibian—that is, instead, the marbled salamander, which is “a charismatic, striking, chunky-bodied, fossorial amphibian, of which no two are exactly alike in color pattern”. “Jim Henson was a renowned puppeteer who, through his talents as a performer, designer and writer, and his innovative use of television and previously the motion picture medium, created ‘the Muppets’, a now-famous family of original puppets including Kermit the Frog, Miss Piggy, and Big Bird”: Brady & Associates, 16 F.Supp.2d 259 (S.D.N.Y. 1997). Wikipedia describes Kermit the Frog, the Muppet character, as “the pragmatic everyman protagonist of numerous Muppet productions”.
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C. Paul Daniels, K.C., was called to the B.C. bar on July 20, 1951 and is currently the longest serving member of the Law Society. He is followed closely by the Advocate’s former editor David P. Roberts, K.C., who was called to the B.C. bar on November 29, 1954 and is the Law Society’s second longest serving member. The City of Argos in Greece is one of the oldest continuously inhabited cities in the world. In the 5th century B.C., the city came under attack from the Spartans. Most of the men of the city died on the battlefield. Inside the city, the distinguished poet Telesilla took charge and, having sent the old men and young boys remaining in the city to the walls, she convinced the women to take up arms and, dressed as men, present themselves as a massed force to defeat the Spartans. The women either fought bravely and defeated the Spartans, or the Spartans thought it would be shameful to defeat women and retreated. Modern scholars doubt her role in the defence of Argos at all. But still … female poets waging war against Spartans is a good look, we feel. Amy Mortimore, K.C., was appointed as the CBABC nominee to the recently re-established federal Judicial Advisory Committee. The Texas toad (toad, not toast) is Texas’s state amphibian. A House resolution described it as “[p]ossessing a Buddha-like visage” and, while “[r]elishing nothing more than a cooling shower”, as “demonstrat[ing] the hardy determination that Texans are known for; in order to survive in a place where the sun is fierce and water can be scarce, they are adept at taking refuge beneath rocks and in below-ground havens”. J. Charlotte Ensminger and Denese C. Espeut-Post were appointed as members of the Health Professions Review Board for three-year terms. According to the product’s website, the “Frog Log” is a “critter saving escape ramp” that “allows small animals to escape swimming pools”. Apparently it is “[h]ighly effective for frogs, toads, salamanders, chipmunks, ducklings, lizards, snakes, small turtles, small rabbits, squirrels, mice, birds, bees, and more” (emphasis in original). For years, the Soviet Union was able to catch spies due to staples. American staples, being made of stainless steel, do not rust. The ones used in the Soviet Union, however, rusted over time. So Soviet passports were typically stained around the staple area whereas passports forged in the United States did not
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have rust stains. If a Soviet passport was not rusting properly, chances were, the passport holder was using a forged passport and was probably a spy. We are not sure what to make of rusty staples on client documents. The Frog Lakes are a group of lakes, drained eastward by an unnamed stream feeding the Frog River, a tributary of the Kechika River in the Stikine Ranges of the northern interior of British Columbia. During World War I, Frieda Lawrence, who was married to the author D.H. Lawrence (Sons and Lovers, Women in Love, Lady Chatterley’s Lover), lived with her husband on the Cornish coast. She came under suspicion during the war because she was rather exacting about hanging her laundry out. It was thought that she was hanging the laundry in a specific way to give messages to the U-boats. It was noted that her father was Baron von Richthofen (the other one), and that Frieda was receiving daily deliveries of German newspapers. The Lawrences were given a military exclusion order and made to leave the area. The Lawrences were rather naughty. Dune Za Keyih Provincial Park, which is also known as Frog-Gataga Park, is a remote wilderness park centred in British Columbia’s Rocky Mountain Trench, within the traditional territory of the Kaska Dena people. The park includes portions of the Kechika River, whose tributaries include the Frog River. It is over 330,000 hectares in size. Eugene Yue Kin was appointed as a lay member of the Board of Governors of the Law Foundation of British Columbia for a term of three years. Winston Sayson, K.C., M.G.C. was selected as one of the 2023 Top 25 Canadian Immigrants in a national award ceremony in Toronto on August 3, 2023. This is a people’s choice awards program that recognizes inspirational immigrants who have made a positive impact on their communities since arriving in Canada. Vermont’s state amphibian is the Northern Leopard Frog, with the general assembly of that state agreeing that “[t]he colors of the northern leopard frog represent the beauty of our state during all seasons”. Further, it helps to control the number of insects and pests in the ponds that “are an attractive part of Vermont’s landscape” and “helps keep Vermont’s pristine wetlands clean by eating algae”. Gavin R. Hoekstra was appointed a member of the Skilled Trades BC Appeal Board for a two-year term.
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The term “frog” can refer to much more than amphibians. Definitions listed in the Merriam-Webster dictionary include “a device permitting the wheels on one rail of a track to cross an intersecting rail”, “a condition in the throat that produces hoarseness” (as in, a frog in one’s throat) and “an ornamental braiding for fastening the front of a garment that consists of a button and a loop through which it passes”. In 1591, Robert Greene wrote A Notable Discovery of Cozenage to denounce the ploys of the “coney-catchers”: conmen and women working in London so called because their marks were called “coneys” or rabbits. He warned, for example, of the Counterfeit Crank, the Baretop Trickster, Nips and Foists, the Hedge Priest and the Crossbiter. One type of Counterfeit Crank was the Clapper Dungeon, who created superficial wounds by rubbing a mix of lime and soda and iron rust into the skin and begged for money. The Baretop Trickster was a woman who would entice an unsuspecting man with a flash of bare skin and lure him into a nearby alleyway where some accomplices were waiting to relieve him of his possessions. The Nips and Foists was a simple pickpocket who used a knife to nip the pocket and foist money out a purse. The Hedge Priest was not a priest at all, but he would gladly take your tithes and perform faux religious ceremonies and the Crossbiter … well, send in your best suggestions and we will print the results. Miriam Kresivo, K.C., was reappointed as a commissioner of the British Columbia Utilities Commission for a term ending December 31, 2026. An hour with Shakespeare and you begin to feel comfortable with the language. Two hours and you wonder wherefore all this rabblery assembled make such baleful din in spite and menace ‘gainst your hour of peace. Speaking of a baleful din: the evening calls of adult male green treefrogs “have been described as sounding like banging a cowbell with a stick … . The sounds they make give rise to some other names for the Green Treefrog; Cowbell Frog; Bell Frog; and Fried Bacon Frog among them”: <www.netstate.com/states/symb/amphibians/ga_green_treefrog.htm>. Athens-Clarke County in Georgia asks: “Do you enjoy listening to frogs calling?” To those who answer “yes!”, it offers “Frog Watch [Hear?] Training” for citizens to “[l]earn to identify and count frogs as part of this citizen science program”. Don’t know if you enjoy listening to frogs calling? A “Frogs & Toads” section of the Government of B.C. website allows you to listen to different types of frogs and toads: <www2.gov.bc.ca/gov/content/environment/
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plants-animals-ecosystems/wildlife/wildlife-conservation/amphibiansreptiles/amphibians-in-b-c/frogs-toads>. In Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (1998), the U.S. Court of Appeals for the Second Circuit considered the brewery’s attempt to use on its bottle labels “[a] picture of a frog with the second of its four unwebbed ‘fingers’ extended in a manner evocative of a well known human gesture of insult”. (Apparently “[t]he membranous webbing that connects the digits of a real frog’s foot” was “absent from the drawing, enhancing the prominence of the extended ‘finger.’”) Accompanying product slogans included “He just don’t care”, “An amphibian with an attitude”, and “The beer so good ... it’s bad”. Addressing concerns raised by the New York State Liquor Authority, the court noted that “[i]n view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children’s exposure to such displays to any significant degree”. Further, “[w]hether viewing [the ‘giving the finger’] gesture on a beer label will encourage disregard of health warnings or encourage underage drinking remain matters of speculation”. (As an aside, the court noted that “[h]and gestures signifying an insult have been in use throughout the world for many centuries. The gesture of the extended middle finger is said to have been used by Diogenes to insult Demosthenes … . Other hand gestures regarded as insults in some countries include an extended right thumb, an extended little finger, and raised index and middle fingers, not to mention those effected with two hands.”) The strongest beer ever made according to the Guinness World Records was a beer called “The End of History” by a Scottish company called Brewdog. It contained fifty-five per cent alcohol. The fact that vodka is typically forty per cent alcohol might give you some idea of just how strong this beer was. Vodka, by the way, literally means “little water.” In 2009, Professor Richard Wiseman of the University of Hertfordshire and his team of researchers dropped 240 wallets all around the city of Edinburgh. Some of the wallets contained photos of a cute baby, some had a photo of a puppy, some had a family portrait, some had a photo of an elderly couple and some had no photo. Eighty-eight per cent of the wallets containing a baby photo, fifty-three per cent of the wallets containing a puppy photo, forty-eight per cent of the wallets containing a photo of a family, twentyeight per cent of the wallets containing a photo of the elderly couple and fifteen per cent of the wallets with no photo in them were returned.
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New Mexico’s state amphibian is the New Mexico spadefoot toad. This is a state with many official emblems, including official vegetables (“[t]he chile, the Spanish adaptation of the chilli, and the pinto bean, commonly known as the frijol”), official grass (“[t]he blue grama grass, scientifically known as Bouteloua gracillis”), official cookie (the bizcochito), official insect (“[t]he tarantula hawk wasp, scientifically known as Pepsis formosa”), and official question (“Red or green?”). What is a bizcochito? New Mexico’s tourism department explains: “The anise-scented, lard-enriched shortbreads are essential to weddings, graduations, and anniversaries, and are so popular at Christmas that in December, biscochitos comprise maybe thirty percent of the diet of the average New Mexican!” Edward L. Wilson was elected as chair of the British Columbia Law Institute. Roshan P. Danesh, K.C., and Laylee Rohani were both appointed to the board of the University of Victoria for terms ending July 31, 2024. Cristen L. Gleeson, K.C., was reappointed to the board of the University of the Fraser Valley for a term ending July 31, 2026. Colorado’s McDivitt Law Firm adopted “a mascot [the McDivitt Law Firm Frog] to help Coloradoans remember who to call in a time of need. At the end of the McDivitt ads, a frog in a bow tie hops into the screen to say, ‘McDivitt’ (instead of ‘ribbit’).” The firm’s website further explains that the “genesis” for this mascot “came from feedback from people searching for an attorney. In Colorado, the airwaves are flooded with ads from attorneys, and it can be hard to know who to call”. Mike McDivitt, a lawyer and the firm’s chief executive officer, says, “I like my name, but a lot of people have trouble remembering the name, and that concerns me. I want people to know and remember who we are.” Karen McDivitt, the firm’s president and the person who oversees administration, noted: “We think he’s [the mascot’s] a cute frog, and even a little bit classy … We wanted something that both caught the attention of the viewing public, and stood for who we are, which is an approachable, family firm.” Michal Jaworski was reappointed to the board of Langara College for a term ending July 31, 2024. Chi Ming Lo was appointed as a member of the board of Vancouver Community College for a term ending July 31, 2024.
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Leap Frog Divorce is a family law firm in Florida. It assures clients that “[w]ith Leap Frog as your guide, you will finally be able to see light at the end of the tunnel and see peace, freedom, and stability in your future”. The firm believes clients deserve “[a] strong, experienced, divorce attorney who can go toe to toe with your spouse in the courtroom if necessary”. Do frogs have toes (for the purpose of going “toe to toe”, or otherwise)? Apparently so. One enthusiast notes of the green treefrog (“considered to be the one of the most beautiful tree frogs in North America”, and the model for Kermit the Frog), which is the state amphibian of both Georgia and Louisiana, that “[i]ts legs are about 1 1/2 times as long as its body, which helps it to jump from 8 to 10 feet when desired. Its toes end in round pads that allow it to climb around in trees very comfortably … At night they can be found clinging to house windows or windowsills preying on insects attracted by the artificial light”: <www.netstate.com/states/symb/amphibians/ ga_green_treefrog.htm>. Despite its apparent beauty, the green treefrog won out as Louisiana’s state amphibian only after a fight (among proponents of different candidates, not among frogs). Some state senators preferred the bullfrog (“The bullfrog is easily seen and you can certainly hear them”) and another asked why not adopt the alligator (although he backed off when told that was a reptile). However, bullfrog fans, take heart. The bullfrog is Missouri’s state amphibian and Ohio’s state frog. (Ohio also has an official rock song: “Hang On Sloopy”.) And in resolving to declare the bullfrog as the state amphibian, Oklahoma’s house and senate described it in glowing terms: it is the “largest frog in North America” and the male’s voice “is a vibrant scenarist series of bass notes”. While it “prefers larger, deeper bodies of water, it can be found in almost every lake, pond, bog, sluggish portions of a stream and even cattle tanks”. It is “inactive during the winter months, when it apparently burrows in the mud beneath the water”. “The Frog Prince” is a German fairy tale during which a frog is transformed into a prince. The tale, which has a decidedly Freudian interpretation much to the delight of English undergraduate students (and likely their professors), appeared in musical form as the song “Kiss That Frog” by Peter Gabriel, released in 1993 and mixed by Canadian Daniel Lanois. Bruce Campos provided the voice for Prince Naveen in the 2009 Disney film, The Princess and the Frog. He obtained his J.D. from the University of Michigan in 2013, and is now an associate with Covington & Burling LLP. According to the firm website:
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Bruno Campos represents client policyholders in a wide range of industries in complex insurance recovery matters that have yielded more than $900 million in insurance recoveries. Bruno provides strategic guidance through the life of a claim, from claims presentation and mediation through disputes in courts and arbitrations. In connection with his pro bono work, Bruno has received a letter of commendation from the Connecticut Veterans Legal Center. Before becoming a lawyer, Bruno enjoyed a fifteen-year career in entertainment, starring in the Golden Globe winning series Nip/Tuck and Brazil’s Oscar nominated O Quatrilho.
This career path seems to honour both parents: Wikipedia reports that his father was an international banker and real estate lawyer and his mother was an actress. The shopdisney.com website carries an extensive range of The Princess and the Frog merchandise, including a Prince Naveen Halloween costume—too late for this year, but get them while you can for next! As WilmerHale reported on its website in September 2020, a team of lawyers from that firm “are featured in the Sundance award-winning firm Feels Good Man”, which “follows Pepe the Frog creator Matt Furie in his quest to reclaim his work from the alt-right.” It explains: The documentary features WilmerHale attorneys Louis Tompros and Stephanie Lin and covers the successful pro bono copyright infringement suit WilmerHale brought on behalf of Furie against Alex Jones’s InfoWars media platform, as well as WilmerHale’s wide-ranging pro bono copyright enforcement actions against alt-right entities. The team secured a copyright victory for client Matt Furie when Alex Jones’s media outlet agreed to disgorge all its profits, and additional damages, from the unauthorized sale of a poster that featured Furie’s Pepe the Frog character.
Back to a perennial favourite … signs outside various places of worship: “Don’t Make Me Come Down There – God” “Adam and Eve: The First People Not to Read the Apple Terms and Conditions” “Be the kind of person your pet thinks you are” “Forgive your enemies – it messes with their heads” “Jesus is watching – but the police have radar” “Come as you are – you can change inside”
And of course, some dubious news bulletins: “Applications are now being accepted for 2 year-old nursery workers.” “The associate minister unveiled the church’s new tithing campaign slogan last Sunday: ‘I Upped My Pledge – Up Yours.’”
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“A cookbook is being compiled by the ladies of the church. Please submit your favorite recipe, also a short antidote for it.” “John, ordained as a deamon, will pastor two churches in Fannin County.”
In November 2022, a Montreal-area building material retailer pled guilty and was fined $40,000 for violating the prohibitions under the Emergency Order for the Protection of the Western Chorus Frog, a violation of the federal Species at Risk Act. The company had blown snow from the lumber yard of one of its stores into protected habitat of the western chorus frog, which grows to an average of around 2.5 centimetres in length. Raymond Lee was appointed vice chair of the Coquitlam Public Library Board for a two-year term ending in December 2024. A blog on the webpage of the Massachusetts Trial Court Law Libraries notes that lawyers have been “known to use extraordinary language on occasion in order to make an opposing lawyer’s work more difficult”. For example, one frustrated lawyer “came into our library one day in a state of rising consternation over a document sent to him by an opposing lawyer. Every sentence seemed to be written with the intent to inflict maximum confusion, while still remaining somehow within the bounds of correct English”. The lawyer “finally threw up his hands in fury when the opposing lawyer’s document suggested, in a particularly convoluted sentence, that some vital element of their case was a batrachomyomachia. ‘What is a batrachomyomachia!?’” The librarians saved the day by providing the answer. The term, “literally meaning the ‘battle of the frogs and mice’, is a short Greek mock-epic poem in Homeric style, describing a one-day war between mice and frogs precipitated by the accidental drowning of a mouse by the Frog King”. Washington state’s state amphibian is the Pacific chorus frog. Chaslynn S. Gillanders was reappointed to the board of the University of British Columbia for a term ending December 31, 2023. Byron M. Thom was reappointed as well for a term ending July 31, 2025. Nicole Skuggedal was appointed president of the Canadian Association of Counsel to Employers. The California red-legged frog is the state amphibian. Assembly Bill No. 2364, which led to the addition of the frog to the Government Code, noted
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this “is the largest native frog in the western United States” and was featured in Mark Twain’s “The Celebrated Jumping Frog of Calaveras County”. The bill further explained that although the frog “no longer has to fear the fork”, its “unique place in California’s history” extends at least to the 19th century gold rush when miners “consumed nearly 80,000 frogs per year, nearly eating the species into extinction”. Wikipedia tells us that in Canada, the sale of fresh or frozen frog legs is illegal unless they are determined free from bacteria of the genus Salmonella, as per the official method MFO-10, Microbial Examination of Froglegs. Kermit the Frog is known in Latin America as Rana René. In 2015, a political candidate for the Institutional Revolutionary Party, René Díaz González, was accused by Disney (which owns the worldwide licensing rights to Kermit) for using Kermit’s likeness in political advertising. González claimed that the frog used in the advertisements was not Kermit the Frog as his mouth was a different colour and his legs did not appear in the advertising. Kermit, of course, is a puppet, and his legs are often not shown at all. Moreover, Kermit has a natural aversion to frogs legs (which as any aficionado of the Muppets knows is the central theme of The Muppet Movie (1979)). Jonathan H. Chaplan was appointed to the British Columbia Review Board for a term of two years. Aamna A. Afsar and Paul Jit Singh were reappointed as members for terms ending November 1, 2028. Steven M. Boorne was reappointed as a member for a term ending December 7, 2028. The Georgia statute that designated a state amphibian (as noted above, the green treefrog) noted that “[o]fficial recognition of a state amphibian could help correct the false impression that amphibians and reptiles are one and the same”. This was especially important for Georgia given that it is “home to 85 different species of amphibians” and has the second greatest amphibian diversity of any U.S. state behind North Carolina. In Manitoba, plains spadefoot toads, green frogs and mink frogs may only be taken for scientific or educational purposes only under authority of a scientific collecting permit. In Ontario (or at least in the counties of Lanmark and Leeds), no person other than the holder of a license shall take or possess more than 25 bullfrogs at one time. Prohibited species under British Columbia’s Controlled Alien Species Regulation include the kokoe poison arrow frog, the two-toned poison arrow frog
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and the golden poison arrow frog (with the great Latin name of Phyllobates terribilis). The cane toad (rhinella marina) is a South and Central American terrestrial toad introduced to northern Australia, where it has become an invasive species due to the fact that it has no natural predators. The toads have poison glands and, together with its tadpoles, they are highly toxic to most animals if ingested. Introduced to eradicate pests from sugarcane fields, cane toads soon became their own pests feeding on the sugarcane itself and changing the ecosystem into which they were introduced. One hundred and fifty cane toads introduced to Oahu in 1932 swelled to a population of 105,517 within 17 months. Britannica explains that a “tadpole, also called polliwog”, is the “aquatic larval stage of frogs and toads”, and “undergo[es] a visually striking metamorphosis before [it] achieve[s] adulthood”. Of course, metamorphosis may also occur in the legal context. For example, “[d]uring the course of trial the theory of the plaintiff’s case and, consequently, the nature of the defense, underwent profound metamorphosis, resulting in motions after judgment by the defendants to amend the answer and by the plaintiff to amend the complaint”: Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84 (1987). However, sometimes it does not quite work, as when “[t]he federal search was under the authority of a warrant, whereas the state search was not. The existence of a federal warrant does not metamorphose the state search into one with a warrant”: People v. Mazel, 45 Cal. App. 3d Supp. 2 (1974). “The law involving the arbitration of claims arising under the federal securities laws has been in a state of metamorphosis in recent years and appears to be still in evolution”: Scher v. Bear Stearns & Co., Inc., 723 F.Supp. 211 (S.D.N.Y. 1989). In a recent article on Judicial Justice Hugh McCall we did some crystal ball gazing and changed two sentences which referred to things that had yet to occur in August and would have been finished by the time of our publication in September. Our edits wrongly suggested that Judicial Justice McCall completed the Paris-Brest-Paris cycling event in August 2023 and that he went to France on his own. In fact, at 72 hours and 930 kilometers into the 1,220 km ride, his ride came to an end with the wise decision to preserve his knee and the nerves in his hands. This valiant effort was rewarded by the fact that Judicial Justice McCall was accompanied to France by his part-
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ner, Batya. We apologize for the confusion created by our future imperfect past predictions. Blaser Mills Law, a law firm in England, invokes Kermit the Frog in relation to its own environmental consciousness: “Kermit the Frog sang ‘It’s not easy being green’ and in a law firm like Blaser Mills Law there isn’t a single obvious big-ticket measure that would immediately and dramatically cut our carbon footprint.” However, it describes various ideas it is implementing, including adding plants (first on the list), bringing lunch, and using paperclips (“sustainable by design”) over staples. In 2011, inspired by media attention surrounding a new Muppets movie, FindLaw.com reported that “Kermit the Frog isn’t the only noteworthy Kermit in America”, and turned its attention to “the equally-important, and notat-all-green, First Circuit Court of Appeals Judge Kermit Lipez”. He (Judge Lipez) was at that time the only judge from Maine on the First Circuit Court of Appeals. Maine does not appear to have a state frog or other amphibian, but does have a state crustacean: the lobster. It also has a state soft drink, Moxie, first created in 1884. The state’s website notes it “has a unique taste that is both sweet and bitter, featuring gentian root extract, and was originally marketed as a medicinal ‘Moxie Nerve Food,’ accompanied by claims to fix a variety of ailments.” Apparently President Calvin Coolidge was among its fans. Merriam-webster.com notes of “moxie”: “Hot roasted peanuts! Fresh popcorn! Ice-cold Moxie!” You might have heard such a snack vendor’s cry at a baseball game—if you attended it in the early 1900s. In its heyday, some claim that the soft drink named Moxie outsold Coca-Cola. The beverage was a favorite of American writer E. B. White, who wrote, “Moxie contains gentian root, which is the path to the good life. This was known in the second century before Christ and is a boon to me today.” In quick time, moxie had become a slang term for nerve and verve, perhaps because some people thought the drink was a tonic that could cure virtually any ill and bring vim back to even the most lethargic individual.
In 2012, NBC News reported that Kermit the Frog “has run afoul of Germany’s media authorities. ZAK, the federal commission charged with regulating the German airwaves, found Kermit guilty of illegal product placement in an appearance last year on commercial network Pro7.” Apparently Kermit appeared to present the channel’s Disney Day of programming, and at that time “also mentioned the theatrical release of Disney’s
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‘The Muppets.’ Because the promo was not marked on screen as an ad, Pro7 violated German media law, which bans product placement unless clearly identified as such. Pro7 has admitted the error.” In 2021, Kermit the Frog’s “The Rainbow Connection” was added to the Library of Congress’s Recording Registry. When interviewed about the honour, Kermit noted: “It seems like only yesterday I was sitting in a swamp, playing the banjo and singing ‘Rainbow Connection’…Time sure is fun if you’re having flies … or something like that.” The Vickers Vedette was a “single-engine biplane flying boat”. According to Wikipedia, the Royal Canadian Air Force found the aircraft “versatile, if somewhat temperamental due to leaky hulls that required constant maintenance (a problem afflicting all wooden hulled flying boats)”. It was used for photographic and forestry patrols, as well as fishing and smuggling patrols and “a number of mercy missions”. Further, “some airmen discovered it was nearly ideal for aerial goose hunting, at least until a pilot was hit by a goose.” The wonderful collection of the City of Vancouver Archives features the circa 1920 photograph of “Vickers Vedette Amphibian climbing ramp from water” (CVA 99-1473) shown below:
Thought du mois: Analyzing humor is like dissecting a frog. Few people are interested and the frog dies of it. —E.B. White, American writer (1899–1985)
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CONTRIBUTORS Cheryl D’Sa is a civil litigator, mediator and the managing partner of Narwal Litigation LLP. She has also served as a bencher since May 2020, and is the chair of the Law Society’s EDI Committee and a member of the Credentials Committee and Mental Health Task Force. She also loves playing Mario Kart on Nintendo Switch. D. Barry Kirkham, K.C., was the gold medalist in his law class at the University of Alberta. Now retired from practising law as a commercial litigator, he divides his time between West Vancouver and Arizona. Leslie Palleson is the third-place winner of the Advocate’s 2022 Short Fiction Competition. She is an accredited roster mediator at Mediate BC and an instructor in conflict resolution at the Justice Institute of British Columbia. David A. Paul, K.C., is a Kamloops-based family law arbitrator and parenting coordinator. He practises in the areas of family law, personal injury, criminal law and family law. He was appointed Queen’s Counsel in 2003 and is a former president of the CBABC. Bhuvana Rai is an experienced, practical tax lawyer with a diverse practice at Mors & Tribute Tax Law. She previously practised at a national law firm and a big four accounting firm. As former Crown counsel at the Department of Justice, she brings unique insight into navigating the audit, appeals and litigation process from within the CRA. She is a former clerk to the justices of the Tax Court of Canada. David Ross teaches income tax at the TRU Faculty of Law as a sessional instructor. He also coaches youth cross-country skiing. These activities both seem to require frequent snack breaks—as, we suspect, may writing tax-related articles for successive issues of the Advocate! Trevor Williams writes about B.C. history, with a particular focus on maritime and First Nations history. His articles have appeared in journals such as The Northern Mariner and BC Studies. Bruce Woolley, K.C., is a sole practitioner who has advised the Real Estate Council of BC (now part of the BC Financial Services Authority) and the BC Real Estate Association. He has taught real estate law extensively since 1981, including at the Peter A. Allard School of Law and at the Sauder School of Business, Real Estate Division. Vancouver readers take note: Bruce, his brother and their parents may also have visited your now-property! Read his article to find out more.
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