September 2025

SEPTEMBER 2025

•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.

Richard Goepel, K.C. 604.642.5651 | rgoepel@watsongoepel.com

Immediately available to assist with arbitration, mediation, and other forms of dispute resolution with an emphasis on commercial and insurance disputes. MOVE FORWARD WITH CONFIDENCE watsongoepel.com

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VOL. 83 PART 5 SEPTEMBER 2025

Entre Nous .

On the Front Cover: Brian Coleman, Q.C. By

Various

A Boat Like Gideon Brown By

Robert K. Smithson

Delayed Reserve Decisions – When the Music Dies By

Robert D. Gibbens, K.C.

Taking Deference Seriously: The Case for Harmonizing the Discretionary Standard of Review Under the Housen Framework By

Tom Posyniak

Med-Arb as an Effective Mechanism for Resolving Wills and Estates Disputes By

Marco Abruzzi

Speech From The Throne Delivered May 27, 2025 By His Majesty King Charles III

First Nations Treaty Leaders Respond to Throne Speech Delivered By King Charles III

Mr. Gus Bateman and His Laughing Matter of Life and Death By Eric Kroshus

The Wine Column

News from BC Law Institute

Letter

ON THE FRONT COVER

Read all about the extraordinary Brian Coleman, Q.C., starting on page 659 of this issue. Don’t worry about whether the requested postnominals offend King Charles III – he also features in this issue, starting on page 695.

BEACH AVEnUE BARRISTERS

GURPRIT BAInS

Direct Line: 604-910-5452

Beach Avenue Barristers is a boutique law firm with an emphasis on professional regulation. We represent both regulators and licensees in matters related to admission, investigations and disciplinary proceedings.

The firm is pleased to welcome Gurprit Bains who has just joined the practice. Gurprit has over 15 years of regulatory experience gained at the Law Society of British Columbia where she was the Deputy Chief Legal Officer and Senior AML (anti-money laundering) Specialist, overseeing the conduct of serious investigations for the last several years.

Henry, Jaia and Gurprit each have extensive and highly regarded backgrounds from which to provide informed, pragmatic and effective representation.

JAIA RAI Direct Line: 604-629-0429

HEnRY WOOD, KC Direct Line: 604-718-6888

Rebecca Huang FCIArb, Arbitrator

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

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

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

ENTRE NOUS

Once upon a time, a mentor mentioned that as a lawyer it was important to read two things in their entirety every year: the rules of court and the Canons of Legal Ethics. That is not bad advice, but it is not always a simple thing to do. As lawyers we are probably some of the busiest professionals around. Clients, deadlines, urgent matters, court appearances, drafting, deal making, advising, administrative responsibilities, mentoring (or being mentored), rain making, crisis management. Sometimes there just is not the time to return to or even brush up on the basics.

The Law Society used to use an honour system for each of us to obtain a certain amount of continuing legal education credits (with a specific designation for an ethics requirement), and most of us obliged. However, some bad apples were presumably abusing the trust placed in them as professionals, because the system was changed to obtaining mandatory credits with a corresponding duty to report (again with an ethics requirement). This was probably an attempt by the regulator to compel us to slow down, take the time to review developments in the law and consider at least some of the ethical underpinnings to practising within this profession.

With the modern onslaught of information we receive, it is not even necessary to attend a seminar. Courses are repeated online and can be streamed in the comfort of one’s office without the need to even break step with whatever practice matters need attending to. Meanwhile “sad boxes” (electronic devices) ping and notify away in our pockets and purses and, if we do not have discipline, we (just like every other human) can get sucked into believing that our friends and family require an immediate response, that all client emails are urgent or perhaps that breaking news matters. Even worse, a quick glance at an app can result in seemingly endless “doom scrolling” for a dopamine hit that ultimately robs us of joy and an ability to manage time. It’s a thing. Just ask LAP.

Perhaps it was a blessing, then, that this editor was felled with a case of summer pneumonia because it forced a slow down and a break from … well, everything other than trying to keep O2 levels up. Work stopped. The cell phone was pretty much off. Checking emails was out. Clients were forced to wait. Meetings were adjourned. News was silenced. Fewer things were purchased. Almost nothing was consumed. Things, in fact, got rather still. There were some gains in those quiet moments. Notably, an addiction to news podcasts was overcome. Reading for pleasure returned. And in one difficult-to-breathe but peaceful moment listening to birds twitter in the garden, a weird desire to read the rules of court and the Canons of Legal Ethics overcame me. OK, only the Canons of Legal Ethics, if I am honest.

Chapter 2 – Standards of the Legal Profession - annotated

A version of these Canons has formed part of the Code of Professional Conduct of the Law Society of British Columbia since 1921. They are included here both for their historical value and for their statement of general principles that underlie the remainder of the rules in this Code.

A lawyer is a minister of justice, an officer of the courts, a client’s advocate and a member of an ancient, honourable and learned profession. In these several capacities, it is a lawyer’s duty to promote the interest of the state, serve the cause of justice, maintain the authority and dignity of the courts, be faithful to clients, be candid and courteous in relations with other lawyers and demonstrate personal integrity.

When the pneumonia finally started to recede, a return to practice (and indeed the world) included a perspective refreshed by having revisited the canons. It meant that when encountering situations, the canons would sometimes spring to mind more readily than they might have otherwise.

It turns out that after an absence from the news, nothing much had changed. The real-time delivery of panic in the form of political chaos and turmoil seemed to have continued unabated. On a return to the news (no podcasts yet), it was reported that something called the “Alberta Prosperity Project” was looking for ways for Alberta to become the 51st U.S. state. The project seeks to assert Alberta’s “sovereignty” looking for ways for the province to separate from Canada all the while being “not interested in working within the confines of Canada’s Constitution to achieve independence.” Former MP Rob Anders (who collects a hefty pension thanks to Canadian taxpayers) is a member. Another is an Alberta-based lawyer named Jeffrey Rath who organized a delegation to Washington for discussions on obtaining U.S. support for a sovereign Alberta.

It makes you wonder, do Alberta lawyers have a professional obligation akin to our Rule 2.1-1(a): “a lawyer owes a duty to the state, to maintain its integrity and its law”? It appears that Alberta lawyers owe no such duty. A

British Columbia lawyer trying to do for British Columbia what Rath is trying to do for Alberta may have professional regulatory troubles that Rath simply does not face (although, he has other regulatory troubles). According to Rath “instead of this stupid notion that the Constitution can be amended, the only way for Alberta is to vote for independence.” Whatever that means. Even s. 3(1) of An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, S.C. 2000, c. 26 states:

It is recognized that there is no right under the Constitution of Canada to effect the secession of a province from Canada unilaterally and that, therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all the provinces and the Government of Canada.

So while Rath may not be violating any ethical duty, he still likely has a bit of an uphill battle on his hands thanks to this pesky thing called the law. Something that Alberta lawyers share with us, though, is what is found in s. 2.2-2 of the Canons of Legal Ethics:

A lawyer has a duty to uphold the standards of the reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions.

In fact, the Alberta provision (Code of Conduct, Chapter 2, s. 2.2-1) is identically worded. Both B.C. and Alberta lawyers have the added obligation of s. 5.6-1 of their respective Codes of Conduct.

A lawyer must encourage public respect for and try to improve the administration of justice.

This mandatory provision, together with the canon of upholding the reputation of the profession, sprung to mind on two recent occasions where practising lawyers were heard advocating to others the idea of deconstructing “any institution” which was either deemed by them to be “colonial” in nature or otherwise contrary to their world view. That position (one advanced at a CLE no less) seems to run contrary to the lawyer’s professional obligation which is not to destroy, but rather improve the administration of justice. We do this through upholding the organizations and institutions which advance the standards of the legal profession as well as its goals. That is not to say there is no room for improvement—of course there is. In fact, our duty is to improve. But our duty is not to destroy. Deconstruction is the abandonment of constructs including constructs such as the rule of law and the administration of justice. If a lawyer does not have faith in such constructs, how can they professionally encourage respect for them or work in ways to improve and enhance them?

Another canon recently came top of mind with the acquittal of five junior hockey players of all charges in a widely reported sexual assault trial. It was Rule 2.1-2:

Judges, not being free to defend themselves, are entitled to receive the support of the legal profession against unjust criticism and complaint.

Wide reporting often results in all sorts of lay people chiming in with their take on the case without the benefit of actually watching the witnesses in the witness box, hearing the arguments of counsel or considering and applying the law to the context at hand. Misstatements such as “the patriarchy is on trial” and that “the case will set a precedent in Canadian law for all future sexual assault trials” simply gain traction on social media and lead to people making statements such as “[t]his judge has been dunked too many times in the pool of patriarchy if this is how she is phrasing her decision.”

As B.C. lawyers, we have a duty to uphold the administration of justice and support judges who are unfairly criticized. Madam Justice Maria Carroccia issued a 91-page written decision after hearing the evidence in open court over several weeks at a closely scrutinized trial. The facts were sordid and salacious. Whether the conduct was unbecoming, or immoral or even wrong, was not what the trial was about. The trial was about criminal culpability for sexual assault which hinged on the question of consent. Therefore, credibility was very much in issue and the person charged with assessing that credibility was the judge who heard all of the evidence and all of the arguments.

As the judge stated:

Much has been made in this case about the concept of consent. This case on its facts does not raise issues of the reformulation of the legal concept of consent. In this case, I have found actual consent not vitiated by fear. I do not find the evidence of E.M. to be either credible or reliable. In my lengthy reasons set out below, I will explain why I reach those conclusions.

Justice Carroccia’s job was to be impartial and to weigh the evidence before her. She had to do this in the face of intense media (and therefore public) scrutiny where various politically motivated groups have shown intense interest in the case. The judge appears to have been aware of this fact when she confirmed that the phrase “believe the victim” has no place in a criminal trial. Indeed.

Although the slogan “believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.1

In a criminal trial, the judge is tasked with determining who to believe without first arriving with preconceived notions about that assessment. The judge could not take anything other than the admissible evidence into account. She weighed the evidence and made significant findings against the complainant’s credibility. We may well not like the outcome, or think that the accused are reprehensible or immoral, but the issue is whether the judge performed her task fairly and impartially. She certainly seems to have done so.

Criminal lawyer, Lisa Helps, was quoted in the Globe and Mail as saying “what I think [the case] should say to potential complainants is every case is decided on its own merits.” When it comes to criminal justice, that is the most any citizen can hope for. Justice Carroccia should not be criticized for performing her judicial functions, even in the most difficult of cases. Certainly, at a minimum, a lawyer weighing in to criticize the judge’s decision should read all 703 paragraphs of the decision before doing so.

And then, if there is time, take a quick perusal of the Canons of Legal Ethics before piping up. If it takes a bout of pneumonia to give one time to pause and consider one’s ethical duties before asserting an opinion, so be it.

ENDNOTE

1. R v McLeod, 2025 ONSC 4319 at para 480, quoting R v Nyznik, 2017 ONSC 4392 at para 17.

ON THE FRONT COVER

BRIAN COLEMAN, Q.C.*

By Various†

Brian was born in the mill town of Sault St. Marie, Ontario, and lived there until he was 17 when he moved to Windsor, Ontario, for a year. His father died of an embolism in 1953, leaving nothing on his death, when Brian was 12. Brian’s father had worked at Algoma Steel for about 42 years and had about $1,200 in life insurance, which went to bury him. His passing left Brian’s mother a widow with three boys: Brian, his older brother Larry, and his younger brother Lynn. Brian started work that same year at Eli’s Cigar Store, a pool hall. He would rack balls, clean tables and sweep the floors. At the end of day, he had to go to the humidor and put water on the floor to be absorbed by the bricks. His older brother, Larry, set up pins at the bowling alley. About five years after his father’s death, the family moved in with Brian’s mother’s sister, Aunt Agnes, and her husband, Uncle George, in Windsor, Ontario.

Brian had two half-sisters from his father’s prior marriage, one 22 years older and one 17 years older. They were very good and very involved—second moms to Brian. The three brothers worked hard to look after themselves and gave their earnings to their mother. Brian had a wonderful childhood, was a happy child and had a loving, caring mother. He feels that he was not dealt a bad hand at all.

* [Brian has nothing against King Charles III, but he has long been a Queen’s Counsel and considers that seniority gives him some say over whether he moves on from Queen Elizabeth II. Respectfully, while he cannot move on, the world has moved on and Brian, like all Queen’s Counsel, became King’s Counsel on the death of Elizabeth II. Nevertheless, we have honoured his request to retain his post-nominals for this article – Ed.]

† This cover story was a group effort thanks to Richard Gibbs, K.C., Alison MacLennan, K.C., the Hon. Wally Oppal, K.C., Jeremy Fung, Bill Asselstine, Lynn Ramsay, K.C., Lisa Helps, Peter Ritchie, K.C., and even Brian himself!

Brian went to McGill, making the junior varsity football team for two years, playing halfback on offence and corner linebacker on defence. In his second year he was named the most valuable player on the team. After two years of studying architecture, Brian decided that he was not going to be an architect. He then worked for a year and in that next summer he got word that his mother had cancer. He took a year off and worked for Foundation Company of Canada as a surveyor on the bridge between Sault, Michigan and Sault, Canada. When his mother’s cancer came back, Brian’s sister, Mary, called to say mom was not going to make it. The brothers went and said their goodbyes.

A friend called and asked if Brian would like to get back to school at Dalhousie. He did not know where Dalhousie was. The friend claimed that if Brian could get in before the third week in September, he could be admitted as a late entry. There followed five of the best years of Brian’s life. At the time, Dalhousie had about 8,000 students. Brian arrived at Dal in late September and shared a house with six or seven other guys and the football coach in Arndale. By then, he had enough credits to be eligible to apply to law. Brian had no intention of practising law, but he thought it provided a route that would get him into labour relations.

During law school, Brian worked summers at Algoma Steel in the human resources department, ran the coffee concession at the law school, marked accounting papers for professors and took tickets at the rink. He met his wife, Elizabeth Shannon, at Dal; graduated May 16, 1968; married Liz on May 18; and, as a honeymoon, left June 1, 1968 to drive across Canada in a 1965 Chevy Corvair.1 Brian had arranged articles in Burnaby. Sometime during law school, Brian had come around to thinking he would practise law with the thought that he could help people. He decided he wanted to be a barrister and had fallen in love with the ocean. Brian had never lived on the ocean until he moved to Halifax, but he could not see cracking into the legal profession in Halifax—rightly or wrongly, he saw it as a closed society.

Determined to live on the ocean and, if not Halifax, and not Tuktoyaktuk, that left the west coast of Canada. Liz and Brian arrived in 1968 and Brian articled at Hean Wylie Dixon Levine and Byrne. He spent three years carrying on a general legal practice, including a year working as a real estate conveyancer. Liz worked as a teacher, and the couple settled in West Vancouver. In 1972, the school district was encouraging teachers to take leaves of absence. They had no kids then and the firm was willing to give Brian a leave of absence, so the pair took off travelling. They bought a van in London and lived in it while they toured Europe. They took hotel jobs in Switzerland; Brian became a night porter, so that they could ski through the

winter and continue travelling. Brian returned to Hean Wylie in 1973, but the parties could not agree to terms, so he moved on. The firm of Mulligan Hogan Ritchie and Firman had been established with five offices but only four lawyers, so Brian embarked on a criminal defence practice with them as of October 1, 1973.

Brian and Liz had Jason in 1975 and Jonathan in 1979, but divorced in 1989. Jason and his wife, Kleo, have two kids, Beatrix (16) and George (13). Jonathan and Katie have a daughter, Isabella (15). Brian lived with Pat Sanderson from 1996 to 2009. Her children, Kelly and Sean, are Brian’s stepchildren and Kelly’s daughter, Sophie, is another grandchild to whom he is “Poppa Brian” as he is to all of his grandkids.

As Brian’s family grew, so did his criminal defence practice. Brian used to do legal aid before it was legal aid. In the early 1970s, they solicited names to do pro bono. You were sent a file and a $30 cheque to cover office opening overheads. During that time, there was a lot of camaraderie, bench and bar. During assizes, the judge, prosecutor, defence and reporters would often go out for dinner together after the case was done. Brian could phone up Harry Rankin, or Bert Oliver, or Angelo Branca and they would give him advice. Bert would get his whole office, juniors and staff, working on the problem. As Brian progressed in the law and gained experience, he gave that back to those junior lawyers who sought him out: reasonable advice, accurate advice, not some pronouncement of sage wisdom, and, of course, without charge.

Brian’s first murder acquittal was R. v. Humchitt. His closing address was about 2.5 hours long and Brian remembers that he took that time to go carefully through all the nuances of the evidence because he was worried that the judge’s treatment of it in his charge might skip over or fail to emphasize details that were important to the defence. The jury came back “not guilty” and there was pandemonium for a few minutes. The judge discharged the client who, after thanking Brian, left quickly. Brian was gathering up his papers when the judge addressed him: “Well done, Mr. Coleman, but your address was half an hour too long.” Brian responded, “Thank you, m’lord”, but his thought bubble would have read, “They just found him not guilty, m’lord, so my address was the exactly correct length of time.”

In 1988, Deb Carpentier had a murder defence to conduct in R. v. Brewer Deb was eight months pregnant and had not done a murder case before, so Brian and Deb did it together. Mr. Brewer was charged with shooting the victim in the victim’s own home. The Crown theory was that Brewer had come to the home to rob the victim of methadone. The defence argued that Brewer armed himself with a gun to threaten the victim because of an argu-

ment earlier that day between the victim and the accused’s girlfriend. The Crown argued that Brewer’s 28 prior convictions were evidence of dishonesty and that Brewer could have simply left the victim’s home rather than shooting him when he tried to eject Brewer. Brian went to the jury on the basis that, unless they could say that they believed the deceased’s widow beyond reasonable doubt, they must acquit. The jury was charged, and Deb and Brian headed to the barristers’ lounge to await the decision of the jury. As they arrived, the phone rang, the clerk informing them that they had a verdict. Back to the courtroom they went and the foreman intoned that Brewer was not guilty. The headline of the Vancouver Sun story of November 5, 1988 read: “Man, 26, acquitted of murder: Jury decided in 15 minutes”. They began deliberations at 2:10 p.m. and returned their verdict at 2:25 p.m., said to be one of the shortest deliberations in Canadian history. Deb and Brian were packing up their bookbags after the tumult died down when one of the jurors came up to them and said, “I hope I’m never in that kind of trouble but if I am I want you—do you have a business card?”

Brian conducted criminal defences for almost all of his 56 years as a practising lawyer. Legal Aid BC acknowledged his retirement, stating, “By our count, Brian has accepted 736 contracts since 2013, which is as far back as our current contract management system allows us to see.” That count starts after Brian had already been practising criminal defence for about 40 years. His experience in defending mostly those who qualified for legal aid confirms that law is a noble profession. Lawyers help people. Legal aid work is difficult, for sometimes difficult clients, and there is not a lot of money in it. There are so many young lawyers who are just scraping by, especially when compared to the salaries and pensions of Crown counsel. The financial tables are stacked against poor people and those who defend them. You can speak of equality before the law, but let us never forget that it is not equal. The state is far more committed to prosecuting than it is to equality.

In 2022, Brian was diagnosed with interstitial lung disease, idiopathic pulmonary fibrosis. In February 2025, he suddenly became weak and breathless. Since February he has received loving care from both of his sons and their families.

As Brian explains: In golfing terms I’ve nearly completed my round—putting out on the 18th green, if you like. In April I came to live with Jason and Kleo, my grandchildren are nearby, and a steady procession of friends and colleagues visit me. I know I’m loved and cared for. I’m not in pain, I’m just breathless after the slightest exertion. MAID papers are signed and if there’s any substantial deterioration in my health, I’m comforted to know

those arrangements are in place for me to activate at a time of my choosing. Will I live to see this article published in the September issue of the Advocate? I don’t know, but I am deeply appreciative of the honour to be on the front cover and have my story told. Law is a noble profession, the noblest I would argue, in terms of the differences we make to people’s lives. It has been my privilege to serve the law by serving my clients to the very best of my abilities.

What follows are tributes to Brian from notable counsel and judges:

Alison MacLennan, K.C.

Brian is the best of us. The rule of law is his core value. The most important participant in the courtroom was always his client. Each was the beneficiary of his commitment to the best he could offer. Each was the recipient of his excellent professional skills and his belief in their humanity. He worked tirelessly to ensure that they were represented, always with respect.

Wally Oppal, K.C.

I first met Brian in 1968. He was articling having arrived from Dalhousie and I was just starting. We became friends. We were criminal lawyers. I don’t know any lawyer who gave as much to persons he defended as Brian. He cared for those who needed help. Sometimes we forget how overwhelming the system is for persons who face criminal charges. Many of Brian’s clients were persons who were particularly vulnerable, poor, mentally ill, often Indigenous, uneducated. Brian was passionate about fairness. No one can ever say they did not receive fair representation when Brian was the advocate, however difficult the challenge was. More than that Brian was a consummate professional, well respected, well liked by all. I am proud to say we have been good friends all these years, a friendship I cherish.

Jeremy Fung

I could probably write a book about him if I had enough time … I had the opportunity to article for and then work with Brian over the better part of a decade. Shortly after that, his first articling student retired. He was a wonderful mentor on how to be a great criminal defence trial lawyer and a gentleman. I also learned many lessons from him on how not to do the business side of the profession. It only took about half a decade to convince him that doing legal aid breach files in Abbotsford was not something he needed to do. Brian was liked by nearly everyone, although he quite enjoyed telling a tale of a judge challenging him to a fist fight in the courtroom. Brian was always there to help colleagues who stumbled or difficult clients who had burnt their bridges with every other lawyer. The world does not see great people like Brian Coleman nearly enough.

Bill Asselstine

I have known Brian for almost 50 years. He is one of the most caring and compassionate people I know in both his personal and professional life. As a criminal defence lawyer he has represented some of the most unfortu-

nate and disadvantaged members of our society, always with the utmost professionalism and compassion. He is a formidable opponent in the courtroom. He has also helped many friends and strangers who have found themselves in difficult circumstances. All on a pro bono basis of course.

Lynn Ramsay, K.C.

I first met Brian on May 15, 1971, my first day of articles. Not only was Brian always available when you needed help, he had lunch with the articling students once or twice each week so you could ask the stupid questions or make the silly comments on files, clients or other lawyers. He never pointed out that the questions were stupid or the comments silly, he often suggested a different point of view or what you had overlooked, and he always paid for lunch.

Richard Gibbs, K.C.

Brian and I defended co-accused on a murder case together. He stayed with my wife, my children and me. There will be enough said by others about Brian’s trial skills, dedication to clients and verdicts hard won. He must have been about 50. One evening after court, he used blankets and dining room chairs to make a fort and then got down on the floor in the fort and played with our young children. For my wife, that is why she loves him. Legal skills and dedication to justice are important, but so is making the time to play with children.

Lisa Helps

For 56 years, Brian brilliantly defended cases from shoplifting and breaches of probation orders to murder and conspiracy. Brian considered the Downtown Eastside, and the courthouse at 222 Main Street, his home turf. His clients knew they could often find him there and, if they did not have a quarter to call him, they would come looking for him there. He, in turn, always carried enough change for two coffees. Often, Brian’s second coffee purchase was for other 222 denizens: the articled student with a procedural question, the sheriff asking about Brian’s latest case, the new clerk trying to figure out an acronym, the senior Crown teasing Brian about a mutual joke, the judges who wanted the scuttlebutt from other jurisdictions. Brian bought us all coffee at Greta’s Coffee Shop at 222 Main, but his real gift was in his conversation. No anxious young lawyer left Brian without practical advice and comfort; no colleague left without a laugh and a story. Brian’s presence at Greta’s made a bad day better and a good day great. Many clients credit Brian with their sobriety, their survival, for the same reason. “He made me feel like I mattered to someone” a client once said to his staff over the phone, and to that client, it was the push he needed to try treatment one more time, which is why he is alive and sober today.

ENDNOTE

1 The Chevrolet Corvair was a rear engine, air-cooled compact car manufactured between 1960 and 1969. The Corvair was heavily criticized by Ralph Nader in his 1972 book Unsafe at Any Speed, which

led to the inclusion of head rests and seat belts as mandatory features in all North American cars thereafter.

A BOAT LIKE GIDEON BROWN

By Robert K. Smithson

Iam a lawyer practising in Kelowna, British Columbia. With my two sons, Jacob and Ty, I have lived here since 1998.

In March 2005, Murray, the husband of one of my former law firm’s long-time legal secretaries, passed away. Cinda had been with our firm for many years and her workspace was located just outside my office. I had never really gotten to know Murray, as he had worked out of town for much of the time I had been acquainted with Cinda. He had, however, popped his head into the office once in a while. Murray and Cinda lived outside Kelowna, in a community known as “Joe Rich”.

At the time, my oldest son, Jacob, would have been eight years old. Jacob was just starting to get interested in music—we had bought him a portable CD player for Christmas. Jacob did not really have any music of his own at that stage, and had gotten his hands on some Great Big Sea discs from my collection. I had a number of their CDs primarily as a result of having lived in Halifax for three years while I attended law school.

A memorial service was arranged for Murray on a March weekend afternoon at the Joe Rich community hall. The morning of the service, before I left home to drive out to Joe Rich, Jacob noticed my suit and tie as I was getting ready to leave. As it was a Saturday, he asked where I was going and I explained to him what I was doing. I told him a little of what I knew of Murray and of how sad we all were about his death.

Jacob had not had much exposure to the concept of death and so did not really say much about it at the time. But, knowing Jacob, I knew he would be thinking about what I had said.

A sizeable number of our firm’s lawyers and staff attended Murray’s service. Murray was obviously a well-known and loved fellow, and the community hall was packed. I never made it more than about five feet inside the front door of the vestibule during the service, seeing nothing of it from my remote location.

Partway through, I tip-toed up a set of stairs to a balcony to see if I might achieve a better vantage point. But the balcony was glassed in, so I could see the goings-on below but could hear nothing. Sometimes that’s the kind of choice that life gives you—see all and hear nothing, or see nothing and hear all.

On my return home, a couple of hours later, Jacob came down the stairs from his bedroom to greet me. I could see he was upset but, initially, I had no idea why. He had his CD player in hand and the headphones were resting around his neck.

I asked him what was wrong, and he told me that, while I’d been gone, he’d been listening to a Great Big Sea song called “A Boat Like Gideon Brown”. He told me, blinking more deliberately and frequently than usual, that the song was about a man whose father had been a fisherman. The father, he told me, had always wanted to own a brand new fishing boat (like Gideon Brown’s) but had lived his whole life, until death, with an old, second-hand boat.

Now, boats had been an occasional topic of discussion in our own household, as life next to Okanagan Lake invariably seems to involve boat ownership. At that time, we owned a beat-up, aluminum “car topper” with an ancient 5 or 6 hp outboard motor.

Jacob, Ty and I would putt about on the big lake near his grandparents’ place, careful to avoid Lake Okanagan’s rougher weather, and do a little fishing here and there. We had had some fun times in that tiny boat, munching on peanuts from the shell, and catching and releasing some stunning rainbow trout. Nothing too serious, though, just barbless hooks and bits of hot dog for bait.

We had talked now and then about some day buying a “real” boat but nothing tangible had been done about achieving that goal to that point.

It was becoming apparent to me that, while I had been out in Joe Rich, Jacob had spent some time thinking about what I had told him about Murray, the memorial service and death. Jacob has always been an intensely caring and sensitive boy, and it did not surprise me at all to learn that he had been affected by these subjects. Parents will often say this is how it seems to be with kids—things you tell them will percolate around in their minds for a while before popping back out at an unexpected moment.

As he continued telling me the story about the fisherman and the boat he had pined for his whole life, Jacob was getting more emotional and visibly closer to melting down in tears. He told me how the fisherman had saved his money for his entire life but died without ever reaching his goal of buying a brand-new fishing boat.

Then the dam burst and the tears started to flow as Jacob choked out the words, “Dad, I’m scared that you might die…”

At this precious moment, time slowed perceptibly for me and I basked in the warmth a father can only hope to experience very occasionally, briefly

making all the struggles and challenges of parenthood worthwhile. It was a moment when this father felt assured that, to one little person and for one brief moment at least, his father was the most important person on the face of this earth, and the thought of losing his dad had reduced him to tears.

But, then, time returned to its normal pace and Jacob, now sobbing, finished his sentence.

“… before you can get us a really good boat.”

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DELAYED RESERVE DECISIONS –WHEN THE MUSIC DIES

By Robert D. Gibbens, K.C.

Delayed reserve decisions can be stressful for counsel and judges, but beyond those immediate actors, the delay can also put stress on the administration of justice and even affect the quality of the decision. Although the delay can be the result of many factors it is certainly a vital metric for reading the health of the administration of justice—justice delayed is justice denied. Various jurisdictions respond to this issue with different procedures.

Lord Justice Peter Gibson of the English Court of Appeal had the following to say in Goose v. Wilson Sandford & Co. 1 about the impact of delayed decisions:

A judge’s tardiness in completing his judicial task after trial is over denies justice to the winning party during the period of the delay. It also undermines the loser’s confidence in the correctness of the decision when it is eventually delivered. Litigation causes quite enough stress, as it is, for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive of the rule of law. Delays on this scale cannot and will not be tolerated.

Again, in the English context, Sir Geoffrey Vos, then the Chancellor of the High Court (now Master of the Rolls), stated in Bank St. Petersburg v. Arkhangelsky, 2 speaking in the context of commercial matters:

Justice delayed is justice denied. The parties to civil and particularly commercial litigation are entitled to receive their judgments within a reasonably short period of time. That period should not be longer than three months. As has been repeatedly said any other approach will lead to a loss of public and business confidence in our justice system.

Finally, the retired Ontario Court of Appeal judge Robert Sharpe identified three virtues of prompt decision making:3

I believe that prompt decision-making is a cardinal virtue for three reasons. First, for the litigants it is agony waiting for the result, and we owe it to them to decide their case promptly as we reasonably can. Second, it is in the interest of the judge to be prompt. The judge will never know

more about the case than the moment the judge walks out of the courtroom having heard closing argument. Some time to reflect upon the case and to ponder the outcome may be required, but every day that passes, the judge will remember less. The longer the delay, the more difficult it will be to resurrect the details of the case. Third, I believe that prompt reasons tend to be better in quality than delayed reasons. Judgments are not like wine: they do not improve with age. Judgment will almost always be better if they are delivered promptly, when the case is fresh in the mind of the judge. A common feature of problematic trial decisions, the ones that end up being reversed on appeal, is that the trial judge had the decision under reserve for a lengthy period.

The impact on the parties, the effect on the judge and the quality of the decision are all relevant considerations.

APPELLATE REVIEW

Clearly, a delayed decision, beyond being a stressor for the parties and the legal system, also deteriorates with time. The words may remain, but the music of the courtroom dies, memories fade and the court’s advantage in assessing the witnesses may be compromised. The courtroom experience degrades with time. The delay can impact on the test for the standard of appellate review depending on the circumstances. In the English case of Bond v. Dunster Properties, 4 the court said: … there is an additional test in the case of a seriously delayed judgment. If the reviewing court finds that the judge’s recollection of the evidence is at fault on any material point, then (unless the error could not be due to the delay in the delivery of judgment) it will order a retrial if, having regard to the diminished importance in those circumstances of the special advantage of the trial judge in the interpretation of evidence, it cannot be satisfied that the judge came to the right conclusion. This is the keystone of the additional standard of review on appeal against findings of fact in this situation. To go further would be likely to be unfair to the winning party. That party might have been the winning party even if judgment had not been delayed.

The point made in this case arises whether there is a mistaken recollection, a failure to recollect, or even a failure to address material evidence.5 However, it is important to note that delay in itself is not a sufficient condition to allow the appeal; it is simply a factor to be considered in light of the other errors.

The Supreme Court of Canada has commented that a delay in reasons, by itself, should be seen through the very narrow perspective of judicial integrity and impartiality when considered on an appeal.6

PROCEDURAL RESPONSES

The Supreme Court of Canada in R. v. K.G.K.7 made the following sugges-

tion, in a criminal context, as a partial antidote to the problems created by a delayed decision:

Indeed, some jurisdictions may find it useful to set out a standardized procedure through which counsel can inquire as to the status of a verdict. This may involve a practice guideline contemplating a joint communication from the parties to the trial judge themselves, or to the regional senior judge or another appropriate person, after a certain amount of time has passed. Ultimately, instituting these procedures could serve to attenuate the anxiety and concern that accompanies the inherent unknowability of a verdict date and delay more generally (MacDougall, at para. 19, quoting Rahey, at p. 610, per Lamer J.; see also R. v. Potvin, [1993] 2 S.C.R. 880, at p. 887). Additionally, where the communication is with the court administration or regional senior judge, it may provide information that assists the court in managing judicial workloads. It may also assist in developing the record for s. 11(b) purposes.

The court here highlights both procedures and information as possible mediators to extended reserve periods.

In response to the above passage from K.G.K., on September 2, 2020 the Alberta Court of King’s Bench issued a Notice to the Profession and Public concerning “Inquiries About the Status of Reserved Decision”. The notice expanded the comments made in K.G.K. to include civil cases, stating:

In 2020, the Supreme Court of Canada in R. v. K.G.K. 2020 SCC 7, proposed at para 76 that courts standardize a process by which counsel can inquire as to the status of a verdict in criminal judge alone trials. The majority of the SCC noted (at paras 57 and 65) that the trial judge is presumed to have struck a reasonable balance between the need for timeliness, trial fairness considerations, and practical constraints. Only where the deliberation time is “markedly longer” than reasonable will the presumption be displaced.

The majority in K.G.K. noted (at paras 61 and 62) that “reasonable” deliberation time must account for individual judges’ workloads, different approaches to reasons and reasoning, and the realities of the judges’ daily lives. Reasonable deliberation time must also account for limits on judicial and court administration resources. Those limits have led to increased wait times for hearing, resulting in overbooking by the Court of Queen’s Bench to compensate, leaving less deliberation time for each case. Insufficient resources have also led to understaffing and incomplete integration of technological solutions to improve efficiencies within the Court. Most recently, COVID-19 has created a significant backlog of cases in all areas of the Court’s jurisdiction, which is expected to increase the workload of Justices and Masters, further impacting the timely completion of reserved judgments.

While these practical realities must be factored into reasonable deliberation time, the Court of Queen’s Bench has decided to implement a process as recommended in K.G.K. by which inquiries can be made by counsel or self-represented parties about the status of a reserved decision in all areas of the law.” [underline in original]

As a result, counsel or self-represented parties inquiring about the status of a reserved decision are given the opportunity to “forward a letter to the Chief Justice”, provided they set out certain information about the case.

In Ontario, the approach to delayed reserved judgments is found in s. 123(5) of the Courts of Justice Act8 and the Consolidated Civil Provincial Practice Directions governing the Ontario Superior Court of Justice (Civil NonDivisional and Non-Small Claims Court). Section 123(5) states:

Failure to Give Decision

(5) Where a judge has heard a matter and fails to give a decision, (a) in the case of a judgment, within six months; or (b) in any other case, within three months, the chief judge may extend the time in which the decision may be given and, if necessary, relieve the judge of his or her other duties until the decision is given.

Practice Direction 158 then states:

If a judge or associate judge does not release a decision or endorsement within the timeframe provided by the judicial officer or as required under section 123 of the Courts of Justice Act, and if the parties have not been advised that an extension of time has been granted by the Regional Senior Judge or Chief Justice, counsel or parties should make reasonable inquiries with the appropriate court office. If, after reasonable inquiries, the decision is still not released and no extension or explanation has been provided, counsel or the party (if self-represented) are advised to write to the Regional Senior Judge.

The provisions in the various states of Australia and New Zealand are similar, requiring a letter to the chief justice, including information concerning the case, inquiring when “the judgment delivery may occur”. Interestingly, some of the provisions involve the local president of the Law Society and some also state that the inquiry “will not disclose the identity of the party initiating the approach.”9

The English Court of Appeal stated in Bond v. Dunster Properties10 that where there is a delay beyond the reasonable period for judgments, as a matter of courtesy to the litigants who are waiting for the judgment, the delay should be explained to the litigants by way of letter or email, as a matter of good practice and transparency, even if the parties did not press for the judgment.11

Probably one of the least inviting provisions concerning reserve decisions is in the Supreme Court of British Columbia’s Practice Directive (PD-27 Communications with the Court). This provision is still found under the heading Communications with the Court, stating at paragraph 4: Unless special circumstances have arisen after a trial or hearing which make early delivery of reasons for judgment necessary, inquiries about

the issuance of reasons for judgment are discouraged. In no event should an inquiry concerning the issuance of reasons for judgment be made directly to a judge, associate judge or registrar, or their administrative assistant.

Unlike many of the other jurisdictions, the B.C. Supreme Court directive does not establish a formal system through the court’s chief justice, where one can inquire as to the status of a decision that has been on the reserve list for an extended period of time. The B.C. approach, unlike all the provisions mentioned, actively discourages inquiries. The Chief Justice of the Supreme Court is also kept out of the practice directive. Where many of the other jurisdictions appear to see the issue of delayed reasons as part of the court’s obligation of communicating with the public, under the principle of transparency, as noted above the Supreme Court of British Columbia still views this issue under the heading of communications with the court, which as a general rule, are to be discouraged.

The B.C. Supreme Court practice directive previously mentioned the Canadian Judicial Council six-month rule for reserve decisions to be delivered, but even this reference was removed in 2006.12 The six-month rule, however, is simply aspirational. The similar rule, whether written or unwritten, in the United Kingdom, Australia and New Zealand is three months. Again, these are all aspirational.

The tension in these rules is between accommodating the interests of the parties in knowing the status of a case during an extended reserve period (a question of transparency), with the administration of handling numerous inquiries ultimately directed to trial judges, who have various time constraints and work loads. The former interest rises, and the latter recedes, with the longer the delay. This tension is also amplified by a failure to have a full complement of judges which thereby extends the average reserve period.

SYSTEM UNDER STRESS

One of the metrics of a system under stress would be data on the length of reserve periods. Further longitudinal information on any change over time would also be helpful in understanding the pressure on the system. However, official data at the trial level is not available, notwithstanding both the B.C. Court of Appeal and the Supreme Court of Canada publish this information.13

In a recent article in the Canadian Bar Review, 14 the authors assessed the time to judgment in several jurisdictions across Canada. The first thing the authors noted was that in Canada there is no official data on reserve periods that is publicly available. The Annual Report on the British Columbia

Supreme Court, for instance, does not contain this data. As the article states, “even rudimentary data regarding the number and length of the trials or reserve periods in Canada is largely unavailable”.15

Given the fact that reserve periods are an important metric in assessing the level of stress a legal system is under, this is an important omission. In New Zealand, for instance, this data is required by statute and is publicly available on the court website.16 The authors of the article therefore created a data set by relying on CanLII data. The authors, from the data, determined the median time-to-judgment in civil non-jury, non-family trials in British Columbia was 99 days (page 291 – January 2014 to January 2019; see the histogram below). The mean in British Columbia was 127 days, and decisions in about fifty-eight per cent of cases were rendered in 127 or fewer days. However, just over 2.6 per cent of the B.C. cases exceeded 400 days from hearing to judgment. In another study it was found that in 1980, B.C. Supreme Court cases taking longer than 180 days from hearing to judgment were just 1.1 per cent of the total, but as of 2018 that figure increased to 8 per cent.17 While the figures and the trend are unsettling, these figures date from 2018 and 2019 and are now several years out of date. They therefore may not now tell the full story.

Time-to-Judgment in the Supreme Court of British Columbia18

There can be numerous causes for the delay of reasons, such as judicial indecision, medical issues of the judge, perfectionism, longer judgments or failure to prioritize, but it would appear the largest factor is a systemic issue

of an overly busy judiciary with not enough judges. The Chief Justice of the King’s Bench of Saskatchewan in a recent interview set out the problem facing many chief justices: a lack of judges.19 An inadequate complement of judges leads directly to long reserve periods. Also, as noted below, there is a domino effect from Jordan:20 the criminal side gets priority, and as a result some civil cases are having their reasons delayed. There is a further domino effect through medical leave because of stress, again reducing the number of judges available.21 The following is an extract from the interview:

Prioritizing criminal cases where the Jordan clock is ticking means other cases being set aside. Decisions on non-criminal matters can wait months, sometimes years.

The Canadian Judicial Council has a guideline of six months for reserve decisions, Popescul [Chief Justice of the King’s Bench of Saskatchewan] said. The vast majority are dealt with in that time, but not all.

“I think currently we are experiencing some degree of backlog and the decisions are not being rendered in some cases as quickly as we would like to have them rendered,” he said.

He would not specify a number.

One case he referenced involved a disputed election at the RM of Candle Lake. The parties waited almost two years, until October 2024, for a decision.

“The judge on that case had an extraordinarily difficult workload and the case was complex,” Popescul said.22

CONCLUSIONS

There are two points that arise from this discussion. The first is that B.C. Practice Directive 27 paragraph 4 should be reviewed. It is a relic of the 1980s when long reserve periods were rare. Today it is still seen in the Practice Directives as part of the Communications with the Court approach. Other jurisdictions have moved on from this in a more transparent direction. There are numerous precedents available to bring this particular provision in line with the current trend. The Supreme Court of Canada in K.G.K. has expressly encouraged jurisdictions to move in that direction.23 Second, data is important to monitor the health of any system. The length of reserve periods is a metric for the health of the local legal system. The B.C. Supreme Court still does not publish the data for aggregate reserve periods, notwithstanding that two courts above it publish this important data every year. Both the B.C. Court of Appeal and the Supreme Court of Canada make this data readily available. It is not clear why the B.C. Supreme Court, which more people will have contact with, still does not publish this information. Transparency again should be the objective here.

1. [1998] TLR 85 at para 112.

2. [2020] EWCA 406 at para 84.

ENDNOTES

3. Robert Sharpe, Good Judgment: Making Judicial Decisions (University of Toronto Press, 2018) at 30.

4. [2011] EWCA 455 at para 7.

5. Natwest Markets Plc & Anor v Bilta (UK) Ltd [2012] EWCA 680 at para 57.

6. See Cojocaru (Guardian ad litem of) v British Columbia Women’s Hospital, 2013 SCC 30 at paras 27–29, referring to R v Teskey, 2007 SCC 75.

7. 2020 SCC 77 at para 76 [KGK]. The court introduced this passage by noting the following: “[74] Counsel often find themselves in a difficult position when significant time has passed since the trial judge took the matter under reserve and they have not received any updates on its status. The Crown may be reluctant to probe for information on the status of the case, insofar as it could risk the appearance of inappropriate interference with the judicial process. For their part, the accused may understandably not wish to be seen as applying pressure to the person in whose hands their fate lies.”

8. RSO 1990, c C43, s 123(5). In Quebec the relevant provision is s 465 in the Code of Civil Procedure, c C-25. In Nova Scotia see s. 34(d) of the Judicature Act, RSNS 1989, c 240.

9. See the Queensland Court website: <https://www. courts.qld.gov.au/court-users/practitioners/reserved -judgments>; Federal Court of Australia website: <https://www.fedcourt.gov.au/feedback-andcomplaints/reserved-judgments>.

10. Supra note 4.

11. Ibid at para 5.

12. Ethical Principles for Judges (Canadian Judicial Council) Ch 4 Commentary 10: “In 1985, the Canadian Judicial Council resolved that, in its view, reserved judgments should be delivered within six months after hearings, except in special circumstances.” This provision was originally included in the previous BC Practice Direction (27 June 1988) predating the present provision which originates from January 16, 2006. In Nova Scotia the commentary is incorporated into the legislation, but is still not mandatory, although “strongly directory” - “Reservation of judgment s.8 Upon the hearing of any proceeding the presiding judge may, of his own motion, or by consent of parties, reserve judgment until a future day, not later than six months from the day of reserving judgment. Provincial Court Act. R.S., 1989 c. 238. R.S., c. 238, s. 8.” Also see s 34(d) of the Judicature Act, supra note 8.

13. The Supreme Court of Canada now provides a statistical summary of the time between hearing and judgment: <https://www.scc-csc.ca/case-dossier/ stat/sum-som-2023-eng.aspx>. It should also be noted that the British Columbia Court of Appeal Annual Reports include this data under the heading “Time Lapse Statistics: Hearing to Judgment”.

14. LaRoche, Marais & Salter, “The Length of Civil Trials and Time to Judgment in Canada: A Case for Time-

Limited Trials”, (2021) 99 Canadian Bar Review 286. Also see Jon Khan, “If I Had More Time Would I Have Written a Shorter and Faster Decision” (2022) 45 Dalhousie LJ 427.

15. LaRoche, Marais & Salter, supra note 14 at 289. This can be compared to the New Zealand courts, which regularly publish this information: <https://www. courtsofnz.govt.nz/the-courts/high-court/highcourt-judgment-delivery-expectations-inquiryprocess-and-recent-judgment-timeliness/>.

16. Section 170(3)(b) of the Senior Courts Act (New Zealand) states: “(3) The Chief Justice must— (a) publish information about the process by which parties to proceedings before the Supreme Court may obtain information about the status of any reserved judgment in those proceedings; and (b) periodically publish information about the number of judgments of the court that he or she considers are outstanding beyond a reasonable time for delivery; and (c) publish any other information about reserved judgments that he or she considers is useful”.

17. Khan, supra note 14 at 428 and 450.

18. LaRoche, Marais & Salter, supra note 14 at 302303.

19. Dan Zakreski, “Lingering vacancies at Sask. Court of King’s Bench contributing to delays, potential case dismissals ‘I am concerned about the workload demands’: Chief Justice Martel Popescul”, CBC News (28 November 2024), online: <https://www. cbc.ca/news/canada/saskatoon/vacancies-courtof-kings-bench-delays-cases-1.7393360>. This interview also states: “Martel Popescul became the top judge at King’s Bench in 2011. By federal law, the court is supposed to have 38 full-time judges, but it has been shy of that number since 2015. The current total is 34”. To also get a sense of the judicial workload also see Western Larch v Di Poce Management, 2012 ONSC 7014 at paras 269–277 under the heading, “Behind the Judicial Door - the life of a reserve” where the judge breaks down the time spent by him on a 1.5-day hearing to be 75 hours of judicial decision-making time (para 271). The British Columbia Supreme Court Annual Report for 2023 at page 7 states: “Further, the ongoing issue of judicial vacancies increases the already heavy burden on the Court’s existing judges who are assigned more work in order to make up the shortfall. The chronic nature of this problem risks undermining public confidence in the judicial process, poses serious risks to the administration of justice, and over time threatens the quality of the justice system.”. To see the unfilled complement of judges in Canada go to: <https://www. fja.gc.ca/appointments-nominations/judges-jugeseng.aspx>.

20. 2016 SCC 27 [Jordan]. While KGK did state that the reserve period is included in the s 11(b) timeline, the judicial integrity presumption imposes a heavy burden to establish deliberations took markedly longer than they reasonably should have. The court also stated that the Jordan caps do not include the time to

verdict. The Chief Justice of the Supreme Court of Canada wrote a letter dated May 3, 2023 to the Prime Minister of Canada stating that, by prioritizing serious criminal matters over civil matters, the “justice system is consequently at risk of being perceived as useless for civil matters.” Reproduced in Hameed, infra note 22 at para 1.

21. See Hameed, infra note 22.

22. Supra note 19. On the “vacancy crisis” see Hameed v Canada (Prime Minister), 2024 FC 242 [reversed subsequent to submission of this article, at 2025 FCA 118]. The impact on the workload and the domino effect through medical leave is described at para 49:

“The positions that have been left vacant are having significant impacts on the administration of justice, the operations of our courts and the health of our judges. Canadian Judicial Council members recently took it upon themselves to provide a more comprehensive overview of the difficulties faced by their respective courts. The findings are appalling.

These ongoing vacancies also have a serious impact on judges themselves. Faced with a chronic work overload and increased stress, judges are increasingly going on medical leave, which has a domino effect on their colleagues, who then must carry an additional workload. It is also becoming difficult for judges of certain courts to find the necessary time to complete training, including training that is considered mandatory. This situation does not bode well for ensuring a healthy and thriving judiciary. If current issues persist, it could also become difficult to attract high-quality candidates for judge positions.” (Also see the letter of the Chief Justice to the Prime Minister, supra note 20 at para 1.)

23. While KGK was a criminal case, Alberta has certainly taken the invitation to extend the comments found in paragraph 76 to the civil context.

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PETER S. HYNDMAN MENTORSHIP AWARD CALL FOR NOMINATIONS

The Vancouver Bar Association is pleased to announce that the Peter S. Hyndman Mentorship Award will once again be awarded at its Annual General Meeting (VBA AGM) on Thursday, November 20, 2025. Nominations for the award are now being accepted.

The Peter S. Hyndman Mentorship Award is conferred annually in recognition of a lawyer who has distinguished themselves as an outstanding mentor. Peter was an exemplary mentor who made extraordinary efforts to pass on his legal skills, wisdom, ethical insights, good judgment, idealism, and commitment to decorum and civility to those who had the good fortune to work with him.

Candidates must be British Columbia lawyers, retired lawyers or former lawyers now appointed to the bench. They must also be able to be in attendance at the VBA AGM on Thursday, November 20, 2025 to receive the award.

The VBA encourages nominations that represent candidates from all areas of practice, experience, and circumstances, from all sizes of firms throughout all of British Columbia. Importantly, prominence within the legal community is not a prerequisite for candidacy. Indeed, sometimes excellent mentors enjoy a lower profile precisely because of the private character of mentorship and its time demands, which may reduce opportunities for enhancing their own public profile. The overriding objective of the Peter S. Hyndman Award is to recognize those who dedicate great effort to bringing young lawyers along in the practice of law and celebrate their indispensable contribution to the legal community.

To make a nomination, nominators must submit a letter of not more than 500 words outlining the reasons why they consider their nominee a fit and proper candidate for the award. The nomination must be endorsed by five additional letters of support from current or former members of the Law Society of British Columbia, each not more than 250 words. These word limits are strictly observed and any nomination packages that do not comply will not be considered. Please submit the six letters in one email to the VBA’s 2025 Past President, Heather Doi, at hdoi@nst.ca with a copy to jliu@nst.ca by no later than October 13, 2025.

Past recipients include Edward G. Wong, Sara Forte, Karen L.M. Carteri, Gaynor Yeung, K.C., William S. Berardino, K.C., Richard C. Peck, K.C., Leonard T. Doust, K.C., Leon Getz, K.C., Robert G. Ward, K.C., Bruce R. Grist, Donald W. Yule, K.C., Tom Roper, K.C., Jan Lindsay, K.C., Nazeer, T. Mitha, K.C. and Tom Braidwood, Q.C.

TAKING DEFERENCE SERIOUSLY: THE CASE FOR HARMONIZING THE DISCRETIONARY STANDARD OF REVIEW UNDER THE HOUSEN FRAMEWORK

By Tom Posyniak*

The time has come to do away with the special appellate standard of review governing discretionary decisions and harmonize under the framework expressed in Housen v. Nikolaisen. 1

The standard of review for discretionary decisions has been expressed in a variety of different ways, but the Supreme Court of Canada has recently used this description: “A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice … Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations.”2

I should say that I have no animus toward discretionary decisions themselves. Quite the opposite.3 My thesis is that we should do a better job of protecting such decisions. In my view, the current standard of review governing review of the exercise of judicial discretion suffers from a confusing lack of uniformity, is unhelpful to litigants and does not optimally fulfil the goals of appellate review because it does not convey with precision the nature of a reviewable error.

Discretionary decisions are the result of the application of law to facts.4 They should be subject to the usual standard of review set out in Housen for such questions: litigants must demonstrate the decision suffers from a palpable and overriding error unless and until a question of law or an extricable question of law arises, in which case correctness review governs.

Folding in the standard of review for discretionary decisions with the Housen framework would have a number of benefits. It would simplify and clarify the law—an end in and of itself. It would also compel focused arguments on appeal, making it clear that appellate courts are not in the busi-

* Thanks to Dylan Nouri for his thoughtful edits to this article.

ness of substituting their opinion for the first-order decision-maker unless some threshold is passed which renders that opinion intolerable. This change would better instill the deference required for review of a judge’s exercise of their judgment and better protect the institutional roles of appellate and trial courts.

DISCRETIONARY DECISIONS ARE ACTS OF JUDGMENT, BUT STILL APPLY LAW TO FACTS

What is a discretionary decision? The question is not without significance because once in the bucket of a discretionary decision, the standard of review on appeal is at least expressed differently from that which applies to questions of law, fact or mixed fact and law.

The British Columbia Court of Appeal’s understanding of judicial discretion comes from a speech given by Lord Bingham:

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. … But when, having made any necessary finding of fact and any necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.5,6

Even armed with this definition, the Court of Appeal has admitted on several occasions that “[t]he line between the exercise of judicial discretion and the finding of facts is not easy to enunciate.”7 That court recently expressed the difference this way: “The first is to be assessed on a comparison of the record to the fact found. In order for this court to interfere, any mistake found must be palpable and overriding. The second is an exercise of judgment.”8

This is indeed a helpful contradistinction. However, simply because a judge makes an exercise of judgment does not mean they are not making assessments and findings of fact. There are often multiple findings of fact within a given exercise of discretion. Often, what looks like a judgment call is really an exercise of applying law to facts but where there is more than one outcome available to the judge.

But more importantly, the fact that an exercise of discretion involves making a “judgment call” with a range of options or outcomes does not, by itself, dictate the lens through which an appellate court approaches its review. This is because the nature and the manner of appellate review is fundamentally a policy decision.

THE APPELLATE STANDARD OF REVIEW IS A JUDICIAL POLICY DECISION

The appellate standard of review seeks to achieve an “appropriate division of labour” between trial and appellate courts for the better functioning of the judicial system and the administration of justice.9 Trial courts resolve disputes. Appellate courts “operate at a higher level of legal generality”.10 They ensure that “the same legal rules are applied in similar situations”, as the rule of law demands, and perform a law-making function to “delineate and refine legal rules”.11 The mediation between these two critical roles is performed by the standard of appellate review, which is a reflection of a debate between deference and legality. Deference refers to “an appellate court showing respect for a trial judge’s institutional advantages on factual issues and refraining from retrying the case on appeal”.12 Legality reflects the appeal court’s duty to maintain the overall legal integrity of the decision-making process and intervening “when first-instance decisions do not respect the law’s general standards”.13

Both of these principles are designed to promote the administration of justice and the public’s confidence in its courts. Appeal courts must maintain consistency and standards, but they cannot make an appeal a free “second kick at the can”,14 because allowing open re-litigation on appeal “erodes the public’s confidence in the judicial process and the rule of law”.15 Through the winnowing effect of the appellate standard of review, appeal courts promote “the goals of limiting the number, length, and cost of appeals, and of promoting the autonomy and integrity of trial proceedings”.16

These statements from the courts are typically in service of mediating the debate between questions of law and questions of fact and mixed fact and law. But these justifications are also given for deference in the face of a discretionary decision by a judge. The Supreme Court of Canada justified deference to discretionary decisions by a judge on three principal grounds. The first is practical: a trial judge, in making discretionary decisions at first instance, “has the advantage of hearing the parties and is in the best position to weigh the equities of a case”.17 The second is institutional: “[t]he proper functioning of our judicial system requires each level of court to remain moored to its respective role in the administration of justice.”18 The third is practical and institutional: there are simply too many discretionary decisions; full correctness review of all such decisions would do violence to the appellate court docket and grind the system to a halt.19

If the justifications for deference are the same for discretionary decisions as those offered for review of questions of fact, why is there a separate articulation of the standard operating outside the Housen framework? The answer is unclear.

It is time to formally bring discretionary decisions within the Housen expression of the standard of review. In the remaining pages, I will set out some problems with the current standard and explain the upside to rationalizing the law by subjecting discretionary decisions to the standard of a palpable and overriding error.

WHAT ARE THE PROBLEMS WITH THE DISCRETIONARY STANDARD OF REVIEW?

There are three main issues with the current appellate standard of review for discretionary decisions.

First, the nature of the standard itself is not uniformly understood. As noted at the outset, the discretionary standard of review has been expressed in a variety of different ways by appellate courts. 20 Even within the Supreme Court of Canada’s jurisprudence, there are various expressions.21 Here are but a few examples:

1.“[A]n appeal court should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision.”22

2.“The standard that ordinarily applies to a judge’s discretionary decision … is that of deference: if the judge has given sufficient weight to all the relevant considerations, an appellate court must defer to his or her exercise of discretion … However, if the judge’s discretion is exercised on the basis of an erroneous principle, an appellate court is entitled to intervene”.23

3.“A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice … Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations”.24

4.“[U]nless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed”.25

5.“Unless the chambers judge misdirected himself or came to a decision that is so clearly wrong that it resulted in an injustice, a reviewing court should not interfere”.26

6.“[D]iscretionary decisions are not completely insulated from review. An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of the facts. …

[T]he criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review”.27

This concern that the standard is not uniformly understood could be waved away as mere quibbling. But in setting the rules for appellate review, one would expect that appellate courts would fulfill their institutional mandate: setting uniform rules of law, including for the expressions of the appellate standard of review.

Further, some of the differences in the above expressions do go beyond mere quibbling. For example, expression #2 speaks of a failure to give “sufficient weight”, while expression #5 is hardly distinguishable from the Housen framework. Expression #3 came months before expression #4 but the latter excludes reference to matters of weight. Which one of these statements is correct? A litigant should not have to guess. The Supreme Court of Canada should clearly set out the discretionary standard as it has for the others in Housen and other cases.

The second issue with the discretionary standard is that it is difficult for litigants to understand and apply.

Some of the expressions speak of failing to give “sufficient weight to relevant considerations”. I recently had one colleague, acting for a respondent, ask me to explain how this was functionally different from asking the Court of Appeal to exercise the discretion again. Other than point to generic statements that appellate courts do not do that, and that the standard is “highly deferential”,28 I had difficulty articulating, with precision, how it is different than asking for a different exercise of discretion.

I am surely not alone in this because the Court of Appeal has to regularly remind litigants this part of the standard is not an invitation to re-do an exercise of judgment. A person challenging a discretionary decision for failure to give sufficient weight to a relevant factor must demonstrate an error, not merely show a failure to mention a factor or analyze the weight or importance of a factor.29 But these distinctions are fine indeed. Some litigants will interpret the standard as a licence to launch invasive challenges of an exercise of discretion under the guise of an insufficient or no weight given to a relevant factor or that decision being an “injustice”, both of which are permissive expressions. This, in turn, likely creates the very thing the standard is designed to avoid: re-litigation of the original exercise of discretion. With the standard expressed this way, can litigants really be blamed for advancing appeals that effectively amount to an invitation for the Court of Appeal to exercise its discretion over the trial judge?30

The third issue with the discretionary standard is that it does not optimally protect the institutional roles of trial and appeal courts. Statements that give litigants a platform to launch deep challenges of the factors taken into account in an exercise of discretion fail to provide sufficiently deferential protection to the trial judge’s institutional role. Indeed, would you rather bring an appeal saying that a judge failed to give any or enough weight to one factor or would you rather be put to the task of saying the judge made a mistake that is “clearly seen”, “obvious”, and in the nature of a “beam in the eye” and goes “to the very core of the outcome of the case”?31 I would venture to say most appellants would want to proceed with the former over the latter.

In short, a judge’s discretionary decision is entitled to deference for roughly the same reasons as a judge’s finding of fact but is not similarly protected by the armour of clear and powerful language expressing the standard of review.

APPELLATE COURTS SHOULD COLLAPSE THE DISCRETIONARY STANDARD OF REVIEW INTO THE HOUSEN FRAMEWORK

Appellate courts in Canada, starting with the Supreme Court of Canada,32 should collapse the discretionary standard of review within the Housen framework.

Arguably, this would not involve that much of a change. Some commentators have suggested that “overturning a discretionary order is substantially as difficult as overturning a clear finding of fact” and that there is no functional difference in the level of deference. In other words, both are “notoriously difficult to win”.33 Others appear to suggest that there is functionally little difference between the standards, noting that the types of errors that would allow appellate intervention of a discretionary decision generally correspond to errors understood under Housen 34

The Federal Court of Appeal has gone so far as to say that Housen is of plenary authority and governs the standard of review for all types of decisions, including discretionary decisions.35 Stratas J.A. writes that “[d]iscretionary orders, such as the one in issue in this case, are the result of applying law to the facts of particular cases—in other words, they are questions of mixed fact and law.”36 Accordingly, Housen standards apply.37 In any event, the court observed that the various expressions of the discretionary standard all map on to Housen. An error of principle is simply “just a different way of saying, to use the language in Housen, that there has been an error on an extricable point of law.”38 Equally, “the giving of insufficient weight to relevant factors, misapprehending the facts or causing an obvious

injustice, if severe enough, … can qualify under Housen as a ‘palpable and overriding error’.”39

The key qualifier in the Federal Court of Appeal’s last statement is the degree of severity of the error. The degree of severity of the error needs to be expressed in the standard of review itself; otherwise the invitation for potentially invasive appellate review will be too tempting for litigants (and, at times, appeal courts themselves).

Other appellate courts have also attempted to reconcile the Housen framework with the discretionary standard. The Saskatchewan Court of Appeal has said that “[a] failure to accord any or sufficient weight to a relevant factor, for example, may constitute or result from an extricable error of law, or a palpable error of mixed fact and law. A misapprehension of evidence sometimes rises to the level of an error of law, reviewable on the correctness standard, or may result from a palpable error of fact.”40

Courts formally standardizing the expression of the standard of review is not unprecedented. One recent example is the standard of review applicable to a judge’s decision to draw an adverse inference. At one time, this was an exercise of discretion, subject to that standard of review.41 In 2016, the Supreme Court of Canada, with little debate or fanfare, extended the palpable and overriding error standard to cover whenever a judge draws a factual inference, including adverse inferences.42 Our Court of Appeal took note of the change and followed suit without any difficulty.43

The ease of this change I think confirms the position of the Federal Court of Appeal that the Housen standard should apply more broadly to what are discretionary judgments of trial judges.44

But is this not, as one commentator has said, simply putting “old wine in new bottles”?45 Given the practical overlap with the standards, that certainly is a fair observation. But I think how the standard is expressed in words matters because it is a textual and rhetorical signal of the level of severity required to allow appellate intervention. It is a signal for both appeal courts and litigants.46

More than the fact that words matter, I think there are benefits to reforming the law to unify the appellate standard of review under Housen

First, bringing the standard for discretionary decision under the Housen tent serves the interests of simplicity and coherence.47 Law is complicated enough. We should seek every opportunity to simplify legal rules.48 That is virtuous in and of itself.

One might retort that the distinct standard for discretionary decisions is a necessary complexity because it allows appellate courts to give certain types of discretionary decisions even greater levels of deference. It is true

that some types of discretionary decisions are given enhanced deference for what are judicial policy reasons.49 But the enhancement of the deference for certain types of decisions is not actually effectuated with any additional threshold requirement. These special discretionary decisions require “more” deference, with little explanation of how that actually impacts what an appellant needs to show to win on appeal. But more to the point of this article, there is nothing to say that the Housen expression of the standard would be somehow less deferential than the “super deference” afforded to certain discretionary decisions. That standard is still “highly deferential”.50

Second, harmonizing the statements of the standards of review under the Housen framework and language provides much needed assistance to litigants in articulating their complaints with a decision. It clearly and simply expresses the task for appellants: find a point of law, a legal test, something precedential or even jurisprudential incorrectly expressed or applied by the judge; or alternatively or concurrently, find a painfully clear mistake on the facts or application of the facts that is material (i.e., decisive) to the result.

A litigant could still attack a decision for failing to give sufficient weight to an important consideration or allege that an exercise of discretion is so wrong as to amount to an injustice. But they would need to explain how failing to give any or sufficient weight to a factor is a reviewable error of fact, mixed fact and law, or an extricable error of law, using the language of Housen. In other words, for the former two, how is it obvious and critical to the result?51 The fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made.52 For the latter, how does it amount to a precedential failure to apply the correct legal test?53

In other words, rearticulating the standard of review for alleged errors in a discretionary decision to fall under the Housen framework would not organize the standard of review on the typology of the mistake, but would express it in terms of the high threshold required for appellate intervention. There are a number of roads to appellate intervention in this regard, but an appellant must always meet the high threshold articulated by the words “palpable” (obvious, clear, apparent—a “beam in the eye”) and “overriding” (controlling, decisive).54

Third, and arguably most importantly, requiring a palpable and overriding error or an error of law or extricable error of law as a condition for appellate intervention into discretionary decisions better tracks the institutional role of the Court of Appeal: correcting legal errors and correcting for clearly material errors of fact, inferences of fact or applications of facts to law. Again, the language of the standard matters here. The language used in

Housen is an expression of the severity of the error that must be met before appellate intervention is justified.55 Reformulating the appellate standard of review this way would, in my mind, better serve the administration of justice by clearly signalling the limited institutional role of appellate courts.

ENDNOTES

1. 2002 SCC 33 [Housen]. See also HL v Canada (Attorney General), 2005 SCC 25.

2. Penner v Niagara (Regional Police Services Board), 2013 SCC 19 [Penner] at para 27, citing Elsom v Elsom, [1989] 1 SCR 1367 [Elsom] at 1375 and Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3 [Oldman River Society] at 76–77; Named Person v Vancouver Sun, 2007 SCC 43 [Vancouver Sun] at para 123.

3. I think the Supreme Court of Canada said it best in the Van Breda case: “[j]udicial discretion has an honourable history, and the proper operation of our legal system often depends on its being exercised wisely”: Club Resorts Ltd v Van Breda, 2012 SCC 17 at para 70.

4. Decor Grates Incorporated v Imperial Manufacturing Group Inc, 2015 FCA 100 [Decor Grates] at para 18; Stromberg v Olafson, 2023 SKCA 67 [Stromberg] at para 119; MacInnis v Bayer Inc, 2023 SKCA 37 [MacInnis] at paras 38–39.

5. The Business of Judging: Selected Essays and Speeches (Oxford: Oxford University Press, 2000), cited with approval in Kish (Litigation guardian of) v Sobchak Estate, 2016 BCCA 65 [Sobchak Estate] at para 33; Singh v Reddy, 2019 BCCA 79 [Singh] at para 17; Petrell v British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2023 BCCA 80 at para 9.

6. Other cases describe it similar ways. “Discretion” in the context of an adjudicative decision suggests a choice between two or more acceptable outcomes: Restoule v Canada (Attorney General), 2021 ONCA 779 [Restoule] at para 192, referring to Baker v Canada (Minister of Citizenship & Immigration), [1999] 2 SCR 817 at para 52. As one court has said, “[T]o exercise discretion means to choose between two or more reasonable options”: Doiron v Haché, 2005 NBCA 75 at para 57. See also Sobchak Estate, supra note 5 at para 33, cited with approval in The Owners, Strata Plan LMS 3259 v Sze Hang Holding Inc, 2017 BCCA 346 at para 69 and in Kooner v Sangha, 2016 BCCA 147 at para 26. It may also mean having a choice as to whether to act or not act: see e.g. E (Mrs) v Eve, [1986] 2 SCR 388. It may be characterized as a decision where there is no rule dictating any particular result: Sawatzky v Sawatzky, 2018 MBCA 102 [Sawatsky] at para 17. A grant of discretionary power is often found where the nature of the problem is “polycentric”, that is, where the subject matter requiring resolution consists of several interacting factors. This characteristic has led to the observation that such an issue requires “balancing”, or that it is “fact-

specific”, or that the decision is in the nature of a “judgment call”: see ibid. See also Wilson v Alharayeri, 2017 SCC 39 at paras 23–26.

7. Sobchak Estate, supra note 5 at para 33; Rise & Shine Grocery & Gas Ltd v Novak, 2016 BCCA 483 at para 36.

8. Keltic (Brighouse) Development Ltd v Yi Teng Investment Inc, 2023 BCCA 375 at para 38.

9. Ledcor Construction Ltd v Northbridge Indemnity Insurance Co, 2016 SCC 37 [Ledcor] at para 35, citing Housen, supra note 1 at para 9.

10. Ledcor, supra note 9 at para 35, citing Association des parents ayants droit de Yellowknife v Northwest Territories (Attorney General), 2015 NWTCA 2 at para 23.

11. Ledcor, supra note 9 at para 35, citing Housen, supra note 1 at para 9.

12. Restoule, supra note 6 at para 91, citing Robert J Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018) at 204.

13. Restoule, supra note 6 at paras 89, 91.

14. Barendregt v Grebliunas, 2022 SCC 22 [Barendregt] at para 104.

15. Ibid at para 102.

16. Restoule, supra note 6 at para 101, citing Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 [Sattva Capital] at paras 51–52.

17. Elsom, supra note 2 at 1374–1375; Maurice Rosenberg, “Appellate Review of Trial Court Discretion” (Federal Judicial Center, 1977) at 19–27.

18. Barendregt, supra note 14 at para 102.

19. Elsom, supra note 2 at 1374–1375.

20. Donald JM Brown & David Fairlie, Civil Appeals (Toronto: Thomson-Reuters, 2021) at 15.28. The authors note:

Although several formulations of the standard of appellate review of an exercise of discretion have emanated from the provincial intermediate appellate courts and from the Federal Court of Appeal, the following proves a clear, concise, and comprehensive statement of the standard of review: An appellate court will only interfere with the Judge’s exercise of discretion if it was based on an error of law (determined on the standard of correctness), a palpable and overriding error of fact, the consideration of irrelevant factors or the omission of factors that ought to have been considered, or if the decision was unreasonable …

21. Ibid at 15.27.

22. Éditions Écosociété Inc v Banro Corp, 2012 SCC 18 at para 41; Haaretz.com v Goldhar, 2018 SCC 28 at para 49; RS v PR, 2019 SCC 49 at para 79.

23. Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 at para 95, citing Reza v Canada, [1994] 2 SCR 394 at 404; Soulos v Korkontzilas, [1997] 2 SCR 217 at para 54.

24. Penner, supra note 2 at para 27, citing Elsom, supra note 2 at 1375, and Oldman River Society, supra note 2 at 76–77; Vancouver Sun, supra note 2 at para 123.

25. Hryniak v Mauldin, 2014 SCC 7 [Hryniak] at para 83.

26. Canada (Attorney General) v British Columbia Investment Management Corp, 2019 SCC 63 at para 35, citing Canada (Attorney General) v Fontaine, 2017 SCC 47 at para 36; Sattva Capital, supra note 16 at para 95; Hryniak, supra note 25 at para 83; Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 at para 95; MiningWatch Canada v Canada (Fisheries and Oceans), 2010 SCC 2 at para 43.

27. British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at para 43, citing R v Regan, 2002 SCC 12 at para 118; Pelech v Pelech, [1987] 1 SCR 801 at 814–815.

28. Araya v Nevsun Resources Ltd, 2017 BCCA 401 [Araya].

29. One might think that grounds which allege a decision-maker failed to give a relevant factor sufficient weight are a relatively easy pathway to overturning a decision. In Dhillon v Pannu, 2008 BCCA 514 at para 28, our Court of Appeal sought to disabuse counsel of this idea:

An appellate court should not substitute its opinion in place of the opinion of the trial judge or chambers judge under the guise that the judge did not give sufficient weight to a relevant consideration. It is incumbent upon an appellant to demonstrate error on the part of the judge, and an appellate court should not interfere with the exercise of discretion by a judge simply because the judge failed to mention a relevant consideration … If the judge’s decision is not so clearly wrong as to amount to an injustice, it must be manifest from the judge’s reasons that he or she misdirected himself or herself, or gave no weight, or insufficient weight, to a relevant consideration.

Similarly, in Araya, supra note 28, the Court of Appeal responded to one party’s argument that the “Oldman River” formulation amounted to “no standard of review” and is “little different from simply reweighing all the factors de novo.” It remarked that this position ignored the fact that the standard was formulated as a deferential one, and then quoted the following passage from Ellph.com Solutions Inc v Aliant Inc, 2012 NSCA 89 at para 51 with approval:

Considerations of fairness will always require an assessment and balancing of competing interests. The decision maker will decide the weight or importance to be assigned to those interests. It is not for us to second guess that discretion-driven

adjudicative function or interfere with that process simply because we might have assigned a different level of importance had we heard the motion in first instance. To do so would reduce the notion of deference to hollow, meaningless rhetoric.

30. Decor Grates, supra note 4 at para 26.

31. Benhaim v StGermain, 2016 SCC 48 [Benhaim] at paras 38–39; Salomon v Matte-Thompson, 2019 SCC 14 [Salomon] at para 33.

32. I do acknowledge that, by operation of vertical stare decisis, our Court of Appeal is bound to apply these expressions of the standard. But there is nothing stopping provincial appellate courts from openly questioning the coherence and rationality of the discretionary standard, while continuing to apply it until freed by the Supreme Court of Canada.

33. Sopinka, Gelowitz & Rankin, The Conduct of an Appeal, 5th ed (Toronto: Lexis Nexis, 2021) at 2.02. The authors add: “Apart from, and perhaps because of, an inherent comity among judges in respect of their discretionary powers, an appellant must overcome a sterner test than would apply to an appeal on a question of law or jurisdiction, where the standard is simply one of correctness.”

34. Brown & Fairlie, supra note 20 at 15.29–15.34.

35. Decor Grates, supra note 4 at paras 18–29; Hospira Healthcare Corp v Kennedy Institute of Rheumatology, 2016 FCA 215 at paras 66–79; Bewsher v Canada, 2020 FCA 216 at para 7; Democracy Watch v Canada (Prime Minister), 2023 FCA 41 at para 11; LaLiberte v Day, 2020 FCA 119 at para 31; Teva Canada Limited v Gilead Sciences Inc, 2016 FCA 176 at paras 22–25. See also Brown & Fairlie, supra note 20 at 15.32.

36. Decor Grates, supra note 4 at para 18; Stromberg, supra note 4 at para 119; MacInnis, supra note 4.

37. Decor Grates, supra note 4 at para 19.

38. Ibid at para 25.

39. Ibid at para 25 [emphasis added].

40. Abrametz v Law Society of Saskatchewan, 2023 SKCA 114 at para 29.

41. Rimmer (Guardian ad litem of) v Langley (Township), 2007 BCCA 350 at para 30; Helm v Pattie, 1998 CanLII 5921 (BCCA) at para 27.

42. Benhaim, supra note 31 at paras 36, 42, 52.

43. Insurance Corporation of British Columbia v Mehat, 2018 BCCA 242 at paras 89–90; Singh, supra note 5 at paras 19–23.

44. Decor Grates, supra note 4 at para 29.

45. Brown & Fairlie, supra note 20 at 15.28, note 5.

46. In British Columbia, when we want to show that additional deference is required for certain administrative decisions, the legislature indicates that they are subject to a standard of review of “patent unreasonableness”. The addition of that extra word turns it from the reasonableness standard described in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] to “the most deferential standard of review known to Canadian law”: The College of Physicians and Surgeons of British Columbia

v The Health Professionals Review Board, 2022 BCCA 10 at para 130, leave to appeal to SCC ref’d 40106 (24 November 2022).

47. Decor Grates, supra note 4 at para 29.

48. The Alberta Teachers’ Association v Buffalo Trail Public Schools Regional Division No 28, 2022 ABCA 13 at para 36.

49. A few examples suffice. Case management decisions of trial judges are entitled to significant deference because of the “intimate knowledge” of the managing judge. See e.g. Araya, supra note 28 at paras 109–111; Haida Nation v British Columbia (Attorney General), 2018 BCCA 462 at paras 20–21; Strohmaier v KS, 2019 BCCA 388 at para 22; Mentor Worldwide LLC v Bosco, 2023 BCCA 127 at para 28. This is also true for supervising judges under the Companies’ Creditors Arrangement Act. An award of costs made by a trial judge enjoys a measure of special deference for similar reasons: Hamilton v Open Window Bakery Ltd, 2004 SCC 9 at paras 26–27; Giles v Westminster Savings and Credit Union, 2010 BCCA 282 at para 72; Quebec (Director of Criminal and Penal Prosecutions) v Jodoin, 2017 SCC 26 at para 52; MacFarlane v Gustafson, 2024 BCCA 400 at para 13; Fraser v Desmond, 1996 CanLII 1610 (BCCA) at para 7. A judge who certifies a class action is entitled to “special deference” for their assessment of whether a class action is a “preferable procedure” because this decision requires significant balancing and weighing of

options: AIC Limited v Fischer, 2013 SCC 69 at para 65, citing Pearson v Inco Ltd, 2006 CanLII 913 (ONCA) at para 43.

50. Benhaim, supra note 31 at para 38.

51. In many cases, merely making an error as to weight on one factor should not necessarily lead to a different result, particularly for polycentric decisions where the judge is basing the decision on a number of different factors.

52. Nelson (City) v Mowatt, 2017 SCC 8 at para 38.

53. The other possible reviewable error may be where a judge exercises their discretion non-judicially, that is, based on improper factors or in an unfair way. But those decisions would be reviewable on procedural fairness grounds, something not governed by Housen

54. In this way, the reformulation would be akin to how the Supreme Court of Canada in Vavilov explained the reasonableness standard. The court explained that there are a number of ways an administrative decision may be unreasonable, but they must always meet that relatively high threshold: Vavilov, supra note 46 at paras 101–135.

55. Salomon, supra note 31 at para 33; Benhaim, supra note 31 at paras 38–39; Hydro-Québec v Matta, 2020 SCC 37 at para 33 (“The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see”); Qiao v Fu, 2024 BCCA 408 at para 4.

NAME

Frank Borowicz, K.C.

Joseph Boskovich

Hon. Mary Ellen Boyd

Barb Cornish, K.C.

Paul D. Godin

Jeffrey A. Hand

Janice F. Hansen

Bryce Jeffery

Rose Keith, K.C.

William E. Knutson

Dean P. J. Lawton, K.C.

Richard Lindsay, K.C.

John Logan, K.C.

Elizabeth Lyall, K.C.

Simon Margolis, K.C.

Vincent R. K. Orchard, K.C.

Carol Roberts

Alan Schapiro

Kerry Short

Scott Snider

Mark L. Tweedy

James D. Vilvang, K.C.

Gaynor Yeung, K.C.

PHONE

(604) 351-7755 (604) 669-5500 (604) 639-3172 (604) 639-3174

(778) 587-4499 (604) 449-3830

(250) 216-2420 (604) 530-3141

(604) 895-2911

(604) 684-0727

(250) 381-7188

(604) 639-3171

(604) 681-6564

(604) 639-3171

(604) 639-3173

(604) 240-8589

(604) 915-5222 (604) 221-1660 (604) 639-3175

(604) 281-4808 (604) 341-8980

(604) 661-9262

(604) 891-7236

CALENDAR

MED-ARB AS AN EFFECTIVE MECHANISM FOR RESOLVING WILLS AND ESTATES DISPUTES

By Marco Abruzzi

Will disputes are among the most emotionally charged legal conflicts. They often arise at a time of grief and loss, making them particularly challenging for families to navigate.

In British Columbia, such disputes are governed by the Wills, Estates and Succession Act (“WESA”),1 which allows interested parties, including disinherited spouses and children, to challenge the validity or fairness of a will. Traditional litigation, while a common avenue for resolving these disputes, is often costly, time-consuming and adversarial, further straining already fragile family relationships.

Given these challenges, alternative dispute resolution (“ADR”) methods such as mediation and arbitration are increasingly being used to settle estate conflicts more efficiently and amicably. However, mediation alone does not always result in a resolution, and arbitration, though binding, can be too rigid and adversarial for emotionally sensitive family matters. Medarb, a hybrid approach that integrates the best aspects of mediation and arbitration, provides a more comprehensive and effective solution. By first attempting to mediate a resolution and then, if necessary, proceeding to arbitration for a binding decision, med-arb ensures both flexibility and finality in estate disputes.

This article explores the application of med-arb to wills and estates disputes in British Columbia, examining how it can provide a structured, fair and efficient means of resolving inheritance conflicts. It also considers the advantages of med-arb over traditional litigation and standalone ADR methods, while addressing concerns that may arise in its application.

THE CHALLENGES OF WILL DISPUTES AND TRADITIONAL LITIGATION

Estate disputes frequently arise due to common factors such as allegations of undue influence, claims of lack of testamentary capacity, disagreements over ambiguous or improperly drafted wills and challenges based on unfair distribution under WESA’s wills variation provisions. These conflicts are

particularly pronounced in blended families, where multiple spouses, stepchildren or estranged family members may contest a will’s provisions. Litigating such disputes can be highly problematic. First, the adversarial nature of court proceedings often exacerbates family divisions rather than resolving them. Second, litigation is expensive, with legal fees and court costs potentially reducing the value of the estate. Third, court cases can take months or even years to resolve, prolonging uncertainty and stress for beneficiaries. Additionally, litigation is a public process, exposing private family matters to public scrutiny, which many families wish to avoid.

Given these drawbacks, alternative approaches such as ADR offer significant advantages. However, mediation and arbitration each have inherent limitations when used separately, which is where med-arb becomes particularly effective.

MEDIATION AND ARBITRATION: STRENGTHS AND LIMITATIONS

Mediation in Estate Disputes

Mediation is a widely recognized ADR method in estate disputes, as it allows family members to engage in structured negotiations with the assistance of a neutral mediator. Mediation is particularly beneficial in estate disputes for the following reasons:

1.Preserves relationships: Unlike litigation, which often deepens family conflicts, mediation encourages cooperation and mutual understanding.

2.Confidential: Mediation ensures that sensitive family matters remain private rather than becoming part of the public court record.

3.Cost-effective and timely: Mediation is typically faster and less expensive than court litigation.

4.Provides flexible solutions: Mediation allows for creative agreements that courts may not be able to impose, such as redistributing assets or setting up trusts.

Despite these benefits, mediation has significant limitations. Because it is a voluntary process, there is no guarantee that parties will reach a resolution. If one or more parties refuse to compromise, mediation may fail, requiring parties to resort to litigation. Additionally, power imbalances can affect the fairness of the outcome, particularly if one party exerts undue pressure on another.

Arbitration in Estate Disputes

Arbitration is a binding dispute resolution process where a neutral arbitrator reviews evidence and arguments before rendering a final decision. It offers several advantages over litigation, including:

1.Finality: Unlike mediation, arbitration results in a binding decision, eliminating the possibility of prolonged disputes.

2.Efficiency: Arbitration is generally faster than court litigation, allowing for a more timely resolution of estate matters.

3.Confidentiality: Arbitration, like mediation, keeps family disputes private. However, arbitration also has limitations. It can still be adversarial, as parties must present their arguments much like they would in court. The decision-making power rests entirely with the arbitrator, which removes the opportunity for negotiated settlements that mediation allows. These limitations suggest that neither mediation nor arbitration alone fully addresses the complexities of estate disputes. Med-arb, by combining these methods, offers a more effective approach.

THE MED-ARB PROCESS AND ITS APPLICATION TO WILL DISPUTES

Med-arb is a two-stage dispute resolution process that begins with mediation. If mediation is successful, the parties reach a mutually agreeable resolution. If mediation fails, the same neutral third-party transitions into the role of arbitrator and renders a binding decision.

How Med-Arb Works in Estate Disputes

1.Initial agreement to med-arb: The parties agree in advance to use medarb, acknowledging that if mediation does not resolve the dispute, arbitration will follow. This provides clarity and ensures all parties understand the process.

2.Mediation phase: The neutral acts as a mediator, facilitating discussions between parties to help them reach a voluntary settlement. Solutions can include redistributing assets, modifying executorship or structuring inheritance in a way that satisfies all parties.

3.Transition to arbitration: If mediation does not result in an agreement, the same neutral shifts to the role of arbitrator, reviewing evidence and issuing a binding decision.

4.Final decision: The arbitrator’s ruling is enforceable under the Arbitration Act2 and provides closure for all parties involved.

Advantages of Med-Arb in Estate Disputes

1.Ensures a final resolution: Unlike mediation, which can break down without a binding result, med-arb guarantees that a resolution will be reached.

2.Encourages good faith negotiation: Because parties know arbitration follows if mediation fails, they are more likely to engage seriously in settlement discussions.

3.Reduces costs and time: Med-arb avoids the drawn-out nature of court litigation while combining two dispute resolution mechanisms into a single streamlined process.

4.Minimizes family conflict: The mediation phase allows open discussions, reducing emotional damage that adversarial litigation can cause.

5.Allows for customization: Parties can select an experienced med-arb neutral with estate law expertise, ensuring informed decision-making.

ADDRESSING CONCERNS ABOUT MED-ARB

Despite its effectiveness, med-arb has been subject to criticism, particularly regarding the neutral’s dual role as mediator and arbitrator. Critics argue that the mediator, after hearing confidential discussions, may carry biases into the arbitration phase. However, skilled med-arb neutrals are trained to separate these roles and base arbitration decisions solely on presented evidence rather than informal mediation discussions.

Another concern is that parties may feel pressured to settle in mediation, knowing the same neutral will later act as an arbitrator. Procedural safeguards, such as ensuring parties explicitly consent to med-arb and understand its structure, can be implemented to maintain fairness and neutrality.

CONCLUSION

Med-arb presents a compelling solution for resolving will disputes in British Columbia, offering an effective balance between the flexibility of mediation and the finality of arbitration. By ensuring that disputes are resolved efficiently, privately and with minimal damage to family relationships, medarb is an ideal method for estate conflict resolution.

As estate disputes continue to grow in complexity and cost, med-arb should be considered a primary alternative to litigation. Legal professionals should encourage the inclusion of med-arb clauses in wills and estate plans, ensuring that families have a structured, efficient and amicable method for resolving inheritance conflicts. With continued emphasis on ADR, med-arb is potentially poised to play an essential role in the future of estate dispute resolution in British Columbia.

ENDNOTES

1. SBC 2009, c 13.

2. SBC 2020, c 2.

SPEECH FROM THE THRONE DELIVERED MAY 27, 2025

By His Majesty King Charles III*

Honourable Senators, Members of the House of Commons, It is with a sense of deep pride and pleasure that my wife and I join you here today, as we witness Canadians coming together in a renewed sense of national pride, unity and hope.

I would like to acknowledge that we are gathered on the unceded territory of the Algonquin Anishinaabeg people. This land acknowledgement is a recognition of shared history as a nation. While continuing to deepen my own understanding, it is my great hope that in each of your communities, and collectively as a country, a path is found toward truth and reconciliation, in both word and deed.

This is my 20th visit to Canada, spread over the course of more than half a century, and my first as Sovereign. As I have said before, “Every time I come to Canada… a little more of Canada seeps into my bloodstream—and from there straight to my heart.” I have always had the greatest admiration for Canada’s unique identity, which is recognized across the world for bravery and sacrifice in defence of national values, and for the diversity and kindness of Canadians.

To the First Nations, Inuit, and Métis Peoples—you have welcomed my family and myself to your traditional lands with great warmth and hospitality, for which I am humbly grateful.

This year, we mark the 80th anniversary of V-E Day and V-J Day. On Juno Beach, at Dieppe, on the Somme, at Beaumont-Hamel, at Ypres, and on Vimy Ridge… At those places, and many others, forever etched into our memories, Canadians fought and died alongside our closest allies.

Today, I see representatives from every part of Canada—from St. John’s, Newfoundland and Labrador, to Victoria, British Columbia, and Arviat, Nunavut. I see the guardians of the fundamental rights and freedoms guaranteed in the Canadian Charter and, as King, I thank you for your service

* With assistance from Prime Minister Mark Carney.

to your fellow Canadians, across the length and breadth of this vast and great nation.

You speak for your communities, representing an incredible richness of cultures, languages, and perspectives. We owe it to this generation, and those who succeed us, to think and act for the greater good of all. While the world faces unprecedented challenges, generating uncertainties across the continents with regards to peace and stability, economics, and climate change, your communities have the skills and determination to bring a wealth of solutions.

By fostering collaboration and engaging in respectful, constructive debates, you will ensure this Government is capable of bold and fair action to support Canadians.

It has been nearly 70 years since the Sovereign first opened Parliament. In the time since, Canada has dramatically changed: repatriating its Constitution, achieving full independence, and witnessing immense growth. Canada has embraced its British, French and Indigenous roots, and become a bold, ambitious, innovative country that is bilingual, truly multicultural and committed to reconciliation.

The Crown has for so long been a symbol of unity for Canada. It also represents stability and continuity from the past to the present. As it should, it stands proudly as a symbol of Canada today, in all her richness and dynamism.

OPENING

When my dear late mother, Queen Elizabeth II, opened a new Canadian Parliament in 1957, the Second World War remained a fresh, painful memory. The Cold War was intensifying. Freedom and democracy were under threat. Canada was emerging as a growing economic power and a force for peace in the world. In the decades since, history has been punctuated by epoch-making events: the Vietnam War, the fall of the Berlin Wall, and the start of the War on Terror. Today, Canada faces another critical moment. Democracy, pluralism, the rule of law, self-determination, and freedom are values which Canadians hold dear, and ones which the Government is determined to protect.

The system of open global trade that, while not perfect, has helped to deliver prosperity for Canadians for decades, is changing. Canada’s relationships with partners are also changing.

We must be clear-eyed: the world is a more dangerous and uncertain place than at any point since the Second World War. Canada is facing challenges that are unprecedented in our lifetimes.

Many Canadians are feeling anxious and worried about the drastically changing world around them. Fundamental change is always unsettling. Yet this moment is also an incredible opportunity. An opportunity for renewal. An opportunity to think big and to act bigger. An opportunity for Canada to embark on the largest transformation of its economy since the Second World War. A confident Canada, which has welcomed new Canadians, including from some of the most tragic global conflict zones, can seize this opportunity by recognizing that all Canadians can give themselves far more than any foreign power on any continent can ever take away. And that by staying true to Canadian values, Canada can build new alliances and a new economy that serves all Canadians.

BUILDING NEW RELATIONSHIPS WITH THE UNITED STATES AND THE WORLD

The Prime Minister and the President of the United States, for example, have begun defining a new economic and security relationship between Canada and the U.S., rooted in mutual respect and founded on common interests, to deliver transformational benefits for both sovereign nations.

In parallel, the Government is working to strengthen its relationships with reliable trading partners and allies around the world, recognizing that Canada has what the world needs and the values the world respects.

Canada is ready to build a coalition of like-minded countries that share its values, that believe in international co-operation and the free and open exchange of goods, services, and ideas. In this new, fast-evolving world, Canada is ready to lead. This will be demonstrated in June, when Canada convenes the G7 Summit.

BUILDING A MORE AFFORDABLE CANADA

The Government is guided by its conviction that the economy is only truly strong when it serves everyone. Many Canadians are struggling to get ahead. The Government is responding, reducing middle-class taxes and saving two-income families up to $840 a year. It will cut the GST on homes at or under $1 million for first-time homebuyers, delivering savings of up to $50,000. And it will lower the GST on homes between $1 million and $1.5 million.

The Government will protect the programs that are already saving families thousands of dollars every year. These include child care and pharmacare. In addition to these, the Government has recently expanded the Canadian Dental Care Plan to cover about eight million Canadians, saving the average person more than $800 per year.

BUILDING A STRONGER CANADA

The Government’s overarching goal—its core mission—is to build the strongest economy in the G7. That starts with creating one Canadian economy out of thirteen. Internal barriers to trade and labour mobility cost Canada as much as $200 billion each year. The Government will introduce legislation to remove all remaining federal barriers to internal trade and labour mobility by Canada Day.

Numerous premiers have already taken vital steps to break down provincial and territorial barriers to trade. Together, we will build on that progress to deliver free trade across the nation by Canada Day. This is critical to unlocking Canada’s full economic potential, but it’s not enough.

To build Canada strong, the Government is working closely with provinces, territories, and Indigenous Peoples to identify and catalyze projects of national significance. Projects that will connect Canada, that will deepen Canada’s ties with the world, and that will create high-paying jobs for generations.

Given the pace of change and the scale of opportunities, speed is of the essence. Through the creation of a new Major Federal Project Office, the time needed to approve a project will be reduced from five years to two; all while upholding Canada’s world-leading environmental standards and its constitutional obligations to Indigenous Peoples.

The Government will also strike co-operation agreements with every interested province and territory within six months to realize its goal of “one project, one review.”

When Canadians come together, Canada builds things that last.

By removing these barriers that have held back our economy, we will unleash a new era of growth that will ensure we don’t just survive ongoing trade wars, but emerge from them stronger than ever. It will enable Canada to become the world’s leading energy superpower in both clean and conventional energy. To build an industrial strategy that will make Canada more globally competitive, while fighting climate change. To build hundreds of thousands of good careers in the skilled trades. And to build Canada into the world’s leading hub for science and innovation.

Critically, the Government will undertake a series of measures to help double the rate of home building while creating an entirely new housing industry—using Canadian technology, Canadian skilled workers, and Canadian lumber. The Government will introduce measures to deliver affordable homes by creating Build Canada Homes. This mission-driven organization will act to accelerate the development of new affordable housing. It will invest in the growth of the prefabricated and modular housing industry.

And it will provide significant financing to affordable home builders. The Government will make the housing market work better, including by cutting municipal development charges in half for all multi-unit housing. The Government will drive supply up to bring housing costs down.

BUILDING A SAFER AND MORE SECURE CANADA

To be truly strong, Canada must be secure. To that end, the Government will introduce legislation to enhance security at Canada’s borders. Law enforcement and intelligence agencies will have new tools to stop the flow of fentanyl and its precursors. The Canada Border Services Agency will be given new powers to examine goods destined for export, to prevent the transport of illegal and stolen products, including cars.

The Government will protect Canada’s sovereignty by rebuilding, rearming, and reinvesting in the Canadian Armed Forces. It will boost Canada’s defence industry by joining ReArm Europe, to invest in transatlantic security with Canada’s European partners. And it will invest to strengthen its presence in the North, which is an integral part of Canada, as this region faces new threats.

The Government will discharge its duty to protect Canadians and their sovereign rights, from wherever challenges may come at home or abroad. To keep communities safe, the Government will hire 1,000 more RCMP personnel. It will change firearms licensing and strengthen enforcement of yellow and red flag laws. Weapons licences for those convicted of intimate partner violence and those subject to protection orders will be revoked. Through the deployment of scanners, drones and helicopters, additional personnel, and K-9 teams, the Government will stem the tide of illegal guns and drugs across the border.

It will take these steps while protecting the rights of law-abiding gun owners and Indigenous Peoples’ longstanding hunting traditions.

The Government will bring a renewed focus on car theft and home invasions by toughening the Criminal Code to make bail harder to get for repeat offenders charged with committing these crimes, along with human trafficking and drug smuggling.

BUILDING A UNITED CANADA

During this time of great change, Canadians are uniting behind what makes Canada unique.

The French language and the Quebec culture are at the heart of the Canadian identity. They define the country that Canadians and I love so much. Canada is a country that respects and celebrates its official languages and

Indigenous languages. The Government is determined to protect the institutions that bring these cultures and this identity to the world, like CBC/Radio-Canada. It will protect the people who give us access to fresh, healthy, and quality food: agricultural producers. And it will protect supply management.

Nature is core to Canada’s identity. In 2022, Canada convened COP15 in Montréal, which concluded with 196 countries striking a historic agreement to protect 30 percent of their lands and 30 percent of waters by 2030. To this end, the Government will protect more of Canada’s nature than ever before through the creation of new national parks, national urban parks, marine protected areas, and other conservation initiatives.

The Government will always protect the rights and freedoms that the Charter guarantees for every Canadian.

The Government will be a reliable partner to Indigenous Peoples, upholding its fundamental commitment to advancing reconciliation. Central to this commitment is the creation of long-term wealth and prosperity with Indigenous Peoples. For that reason, the Government will double the Indigenous Loan Guarantee Program from $5 billion to $10 billion— enabling more Indigenous communities to become owners of major projects. As Canada moves forward with nation-building projects, the Government will always be firmly guided by the principle of free, prior, and informed consent.

Canada’s immigration system has long been a source of pride for Canadians and of dynamism for the economy. The Government is dedicated to rebuilding the trust of Canadians in immigration by restoring balance to the system.

The Government will cap the total number of temporary foreign workers and international students to less than five percent of Canada’s population by 2027. By doing this, the Government will attract the best talent in the world to build our economy, while sending a clear message to Canadians working abroad that there is no better time to come home.

BUILDING CANADA STRONG BY SPENDING LESS AND INVESTING MORE

In all of its actions, the Government will be guided by a new fiscal discipline: spend less so Canadians can invest more.

Day-to-day government spending—the government’s operating budget— has been growing by nine percent every year. The Government will introduce measures to bring it below two percent.

Transfers to provinces, territories, or individuals will be maintained. The Government will balance its operating budget over the next three years by

cutting waste, capping the public service, ending duplication, and deploying technology to improve public sector productivity.

In parallel, the Government will take a series of measures to catalyze new investment to create better jobs and higher incomes for Canadians. The scale of the Government’s initiative will match the challenges of our times and the ambitions of Canadians.

CONCLUSION

Honourable Senators, Members of the House of Commons,

When my dear late mother addressed your predecessors seven decades ago, she said that in that age, and against the backdrop of international affairs, no nation could live unto itself. It is a source of great pride that, in the following decades, Canada has continued to set an example to the world in her conduct and values, as a force for good.

I wish to express to you and to the people of Canada my heartfelt gratitude, and that of my wife, for the warmth of the welcome which we have received.

As the anthem reminds us: The True North is indeed strong and free!

Members of the House of Commons, you will be asked to appropriate the funds to carry out the services and expenditures authorized by Parliament.

May you honour the profound trust bestowed upon you by Canadians, and may God bless and guide you in all your duties.

THE BGUILED DEBATE (TRY-OUTS)

Thursday, October 9, 2025

Jack & Darlene Poole Theatre (Arts Umbrella)

1400 Johnston Street

Granville Island, Vancouver, V6H 4G9

Marvel, through tears of laughter, at courageous members of the legal community as they debate the maxim: “Ignorance of the law is no excuse (Ignari advocati excusantur)” as humorously and persuasively as they possibly can.

Doors open at 6:30Speeches begin at 7:30. All proceeds to Access Pro Bono.Tickets will sell out fast!

For ticket link, sponsorship opportunities, info on competing, and other information, see our feeble attempt at a website:

https://bguileddebate.com/

FIRST NATIONS TREATY LEADERS RESPOND TO THRONE SPEECH DELIVERED BY KING CHARLES III*

“We Are Not Here for Ceremony—We Are Here for Justice”

Unceded Algonquin Anishinabek Territory, Ottawa, ON — Treaty leaders from across the Prairies and Northern Canada are responding to [the May 27, 2025] historic Speech from the Throne, delivered by His Majesty King Charles III in Canada’s Senate Chamber. This joint response calls attention to the profound gap between ceremonial gestures and the reality of unfulfilled Treaty obligations.

This marks the first time King Charles has delivered the Throne Speech in Canada since his ascension in 2022. The ceremony opened with a performance by Métis fiddler Morgan Grace of Manitoba and featured Traditional colonial protocols, with dignitaries including former Prime Ministers and First Nations leadership led into the Red Chamber by the Usher of the Black Rod.

While the King acknowledged the Unceded Territory on which he stood and expressed hopes for a future rooted in “Truth and Reconciliation – in word and in deed,” First Nations leaders stressed that real Reconciliation must begin with justice, Treaty implementation, and shared decision-making.

Joint Treaty leadership calls for:

•Inclusion of First Nations staff and governance roles in the Major Projects Office;

•Legislated First Nations roles in environmental assessments and procurement;

•Protection of Treaty and Inherent Rights in interprovincial trade legislation;

•Recognition that no project proceeds without free, prior, and informed consent.

“I was honoured to attend the Speech from the Throne alongside a small delegation of First Nations leaders,” said Grand Chief Kyra Wilson of the

* This is the entirety of a joint press release issued by the Assembly of Manitoba Chiefs and the Federation of Sovereign Indigenous Nations on May 28, 2025. Capitalization is in the original.

Assembly of Manitoba Chiefs. “It’s concerning that not all First Nations leadership were present or included in this historical moment. And this exclusion is in contradiction to the spirit and intent of our Treaties. These sacred covenants, that our ancestors entered into with the Crown, were made in ceremony and in good faith. They were signed with the understanding that our Nations would never be subordinated, but respected as partners.”

“We are requesting and expecting His Majesty The King to meet with First Nations Chiefs on our unceded, unsurrendered Ancestral and Traditional Territories to promote, protect and implement our Inherent and Treaty Rights. The Crown must fulfill its constitutional obligations and honour the Nation-toNation relationship that forms the foundation of our shared history,” said AFN Regional Chief Bobby Cameron, and FSIN Vice Chief David Pratt.

“The Throne Speech means little without action,” said Grand Chief Greg Desjarlais, Confederacy of Treaty No. 6 First Nations. “We are here to say the era of symbolic gestures is over. It’s time for the Crown to honour the Treaties in law, in policy, and in budget.”

“First Nations leaders from every Treaty Territory came together in unity today,” said AFN Regional Chief Willie Moore. “That unity is not just ceremonial, it is political. We are here to see justice, implementation, and respect for our Nations.”

“What we witnessed today must not be remembered for its pageantry alone,” added Grand Chief Jerry Daniels, Southern Chiefs’ Organization. “It must be remembered as the day we called on the Crown to end its silence and act on the spirit and intent of Treaty.”

Among the key commitments outlined in the Throne Speech were proposals to eliminate federal interprovincial trade barriers, create a centralized Major Projects Office to speed up approvals, and reduce the federal operating budget. These announcements raise immediate concerns if they don’t involve First Nations right from the start.

While Canada pledges to spend less on its operations, Treaty leaders emphasize that fiscal restraint must not come at the cost of justice for First Nations Peoples.

As King Charles remarked on the need for “renewal” during a time of global instability, Treaty leadership reminds all Canadians that the foundation of this country remains unresolved. If this Throne Speech truly marks a new chapter, then let it begin with the truth. First Nations are not seeking reconciliation through symbolism – we are demanding justice through implementation.

As Canada prepares to host the G7 summit in June and speak of unity on the world stage, First Nations remind the federal government that unity begins with accountability. The national anthem ends with a promise – “The True North strong and free” – but it cannot be truly strong or free until the rights, voices, and governments of First Nations are fully recognized and respected.

MR. GUS BATEMAN AND HIS LAUGHING MATTER OF LIFE AND DEATH*

By Eric Kroshus

What’s so funny?”

Between crashing waves of laughter that left him struggling for breath, Bateman tried to answer.

“It’s … all of you … those lights … that noise … ”

His laughter continued, drowning out the phalanx of humming machines arranged around him. Dr. Neumann rotated his wrist slightly, raising the prongs of the electric wand in his right hand a few centimeters off the surface of Bateman’s brain. A moment later, Bateman’s laughter vanished. Dr. Neumann repeated his question.

“This hospital,” Bateman replied. “This room. Those little hats and masks you all insist on wearing. Everything, really. A better question might be, ‘What’s not funny?’ And the only answer I can come up with is … well, you, Dr. Neumann.”

It was only a headache. Or rather, a series of headaches, less notable for their intensity than for their increasing frequency. Once a week, once a day, once an hour: the refraction time between headaches shrunk until they smoothed into a single dull, omnipresent pounding. Reluctantly, Bateman instructed his assistant to schedule him a doctor’s appointment.

Even so, he wasn’t too worried as he lobbed jokes back and forth with his doctor, a white-haired ex-Marine who considered everyone under the age of 70 a pampered wimp. It was only when his doctor failed to end the consultation with his standard slap on the back and gruff “there’s nothing wrong with you” that Bateman felt his first twinge of concern.

He was referred to a neurologist at St. Maturinus hospital who poked and prodded him and shone bright lights in his eyes while carrying on a breezy, one-sided conversation studded with invasive questions Bateman assumed were professionally relevant. Then, in the same tone she’d just described her

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

son’s refusal to eat anything other than crackers, the neurologist announced that, based on her concerns, she was ordering a series of blood tests.

When the tests came back negative, she ordered a CT scan. It was at this point that Dr. Neumann discovered that Bateman was a patient at St. Maturinus. He’d always done his best to ignore the gossip which flitted amongst the hospital staff, but this time, he didn’t try quite so hard to avoid it. Gus Bateman, his favourite comedian, someone who’d been a source of thoughtprovoking hilarity in his life for nearly three decades, was a patient at his hospital. He could still remember as a teen when Bateman burst onto the scene with his searing stand-up and boundary-pushing comedies. Thirty years later, he still admired Bateman’s easy charm and off-the-cuff humour, qualities he was bitterly aware that he lacked.

Although Bateman was still active in the comedy world, the younger staff were more familiar with him as an online conspiracy monger. After fiercely protecting his privacy for decades, Bateman had joined X following his second acrimonious and all-too-public divorce. Slowly, his posts had drifted from comedy to conspiracy. By the time he was admitted to St. Maturinus, Bateman’s hard-won reputation had been eclipsed by @itsbateman’s notoriety.

Dr. Neumann speculated to Dr. Khan, the radiologist set to perform Bateman’s CT scan, that Bateman’s online behaviour was consistent with a tumour in his right temporal lobe. Dr. Khan disagreed. Maybe that’s who he’s always been, only now we can see it. This possibility troubled Dr. Neumann, but he soon dismissed it. The paranoia, the divisiveness—this wasn’t the person he’d admired for three decades. So, when the CT scan showed a tumour exactly where he’d predicted, he felt a dizzying cocktail of emotions. Sadness, of course. Vindication, too. But also, he had to admit, excitement for the chance to operate on Bateman.

“It looks like that tissue is involved in the mechanical production of laughter. Let’s label that section so we don’t damage it. OK, moving on.” Dr. Neumann moved the electrical wand a few centimeters over before gently prodding the surface of Bateman’s brain again.

“What’s your last name?”

“Again?” Bateman said with what Dr. Neumann assumed was a smirk, since he could only see Bateman’s glistening brain, pulsating under the harsh surgical light like a gelatinous heart.

“To remove your tumour without damaging your brain, I need to map it. To do that, I need to apply direct cortical stimulation to different regions to see if the electrical current causes any deficits in your ability to answer my

questions. To do that, I need you to answer my questions directly. So: your last name?”

Bateman didn’t respond immediately. Maybe, Dr. Neumann hoped, he feels chastened enough to drop the contrarianism

“It’s Bateman, not to be confused with @itsbateman.” Dr. Neumann sighed—at least he’d answered the question.

“There’s a difference?” he asked with immediate regret.

“To most people, yes. But you, Dr. Neumann, can’t seem to distinguish between my social media and my tumour. You’re digging around my brain in search of my iPhone to keep me from tweeting. It’s like William Tell, only the Apple is inside my head and I don’t trust your aims.”

Dr. Neumann took a deep breath, re-committing to his practice of ignoring Bateman’s provocations. “Ok, we’re going to show you a picture: can you tell me—”

“Ow!” Dr. Neumann stiffened, glancing over at Bateman’s EKG with concern. “Joking,” Bateman laughed. “There’re no pain receptors in the brain. The picture—it’s a cat. Me-ow. Get it?

“This isn’t the place for comedy.”

“Ah, that’s your excuse.”

“You know I admire your work, but brain surgery isn’t a laughing matter.”

“Is that a joke?”

“Excuse me?”

“You made me laugh only minutes ago, remember? Though, poking me with that probe doesn’t count. You’ll need to deliver a punchline to get the real laughter I know you crave.”

***

“I knew all your comedy specials by heart. Seriously. My favourite was— is—The Last Laugh. No, Estate of the Union. It’s impossible to choose.”

“I’m glad the expensive dissolution of my first marriage brought you such joy. Hopefully this tumour proves equally humorous.” Dr. Neumann started to apologize, but Bateman stopped him. “I’m joking,” Bateman smiled, leaning back on the semi-reclined examination table. “Where were we?”

Dr. Neumann fumbled with Bateman’s chart. “Right. The CT scan,” he said, nodding toward Dr. Khan, who was standing near the consultation room’s door, “revealed a tumour, so we need an MRI for a better look. Then, before surgery, we’ll do a functional MRI—it’s like an MRI, but instead of showing us the tumour, it gives us a map of brain function to help guide our surgical approach. But—”

“But first,” Dr. Khan said, “We’ll take care of your MRI.”

“Right,” Dr. Neumann nodded curtly. “Don’t want to get ahead of ourselves.” He hesitated before continuing. “But from what I’ve seen so far, I’d guess the tumour is causing your headaches, along with your apophenia.”

“Apo … ?”

“Apophenia: perceiving unrelated things as meaningfully connected.”

“Too much meaning?” Bateman raised his eyebrows. “Oh … ”

Dr. Neumann shifted uncomfortably. “It’s not exactly a diagnosis. Just, I’ve been observing—”

“And when did this observation occur? I thought we met five minutes ago, and the only thing I’ve observed so far is you quoting my movie lines at me in a desperate attempt to make me laugh.”

“Your social media—”

“That’s a diagnostic tool now?”

“No, of course not,” Dr. Neumann said quickly. “But ... I couldn’t help but notice that since you joined X you’ve embraced various conspiracy theories: 9/11, Roswell, JFK—”

“And removing this tumour will explain away every anomaly?” Bateman said as he sat up straight. “What about Umbrella man? The shooter on the grassy knoll? All the incongruities that demand an alternative explanation?”

“Regardless of Dr. Neumann’s unhelpful speculation,” Dr. Khan interrupted, “the tumour needs to come out, and he’s the best.” Bateman leaned back and nodded silently. “I’ll see you next week for your MRI, OK?”

Once they left the consultation room and were safely around the corner, Dr. Neumann slumped over a gurney.

“I’m faint. My favourite comedian hates me.”

“He’s just scared, and he’s coping in the only way he knows how to.”

“He suggested I have a tumour that makes me incapable of humour.” Dr. Neumann grimaced. “He’s probably right.”

“Well, you didn’t have to try so hard to make him laugh … ”

“My only concern is his health,” Dr. Neumann said sharply. He raised himself off the gurney and straightened his scrubs. “Did you see his hostility?”

“Hostility? He was taking the piss out of you. You’re just upset he didn’t put you on a pedestal like most patients.”

Dr. Neumann shook his head. “His hostility is further evidence that this tumour is the issue. That,” he said, pointing back toward the consultation room, “isn’t him. It can’t be.”

***

“Commencing tumour resection.” Dr. Neumann leaned forward, placing his forehead against the surgical microscope necessary for the delicate work to come. The surgical theater disappeared; all that remained was the sur-

face of a brain. He narrowed his focus further until everything, including his sense of self, dissolved into the task at hand.

After 45 methodical minutes of excising tumour, he leaned back from the microscope.

“Tumour’s mostly gone. But the remaining pieces … they’ll be even more of a challenge. I’ll still be guided by the fMRI and our previous electro-mapping, but I’ll have to keep stimulating your brain and asking you questions so we steer clear of functional tissue.” He picked up the electric probe and touched it to Bateman’s brain. “What’s your profession?”

“I started in civil engineering. Bridges, mostly.”

“Is this leading to an answer?”

“My first wife,” Bateman continued, “was a psychiatrist. When we first got together, people referred to us as ‘Nuts and Bolts’. I still don’t know if that’s a nickname or a prediction...”

The whole surgical team laughed. Even Dr. Neumann smiled, though he tried to suppress it beneath his surgical mask.

“We’ll go with comedian, then.”

He probed another nearby spot. “What’s this?” he said as a nurse held up a picture of a sloth.

“Why, it’s you, Dr. Neumann!”

Dr. Neumann ignored Bateman’s reply, instead focusing on removing an especially tricky piece of tumour. As the surgery’s difficulty rose, the banter in the surgical theatre waned: at that moment, other than strictly necessary communication, the team was silent. After several minutes of painstaking resection, Dr. Neumann picked up the probe and touched another region.

“What’s your last name?”

“You keep asking that,” Bateman said. “Let’s start a name tab: every time I’m right, we’ll add a tally, and at the end we’ll compare it with how many times you made me laugh.”

“Answer, please. We’re operating in an area linked to memory, information integration and identity—precision is paramount.”

“What if I get my name backwards? What does that say about my identity? Can I still tally it on my name tab?”

Dr. Neumann gritted his teeth. “Please, Mr. Bateman. Brain surgery is hard, and it’s even harder when the brain belongs to you.”

“Normally,” Dr. Neumann explained, “we’d use fluorescent dye to help us differentiate between you and the tumour—”

“You do struggle with that.”

“—but our tests indicate you’re allergic to it.”

“Let’s not use it then—I don’t want to dye.”

Dr. Neumann pulled up a chair and sat down beside Bateman. “Do you ever stop joking? Tomorrow’s surgery is serious.”

“This is who I am … ” Bateman said quietly, eyes cast toward the ground. For a moment, Dr. Neumann felt guilty about his impatience, though this vanished a moment later when Bateman, with a wink, added, “or do you want to cut that out, too?”

Dr. Neumann smiled weakly. “It’s challenging to maximally resect tumours without affecting vital tissue, but I’ll be working with cutting-edge technology to make sure we get it right.”

“Dr. Neumann—the first surgical cyborg!”

“If you say so. Returning to tomorrow’s itinerary: the anesthesiologist will only wake you once your brain is exposed. He’ll use a mixture of dexmedetomidine, nitrous oxide—”

“That’s laughing gas, right?”

“Right. Anyway—”

“Ever use it on yourself?”

“It’s a highly controlled substance,” Dr. Neumann bristled. “To even ask me that is an affront.”

“Maybe you should—then you’d know that I’m joking.”

“I understand humour perfectly well.” Dr. Neumann adjusted his glasses and softened his tone. “It’s quite interesting—I’ve made a study of it.”

“Humour? OK, that’s funny.”

“I’m serious. Several parts of the brain are likely required to make and understand a joke—the nucleus accumbens, the amygdala, the prefrontal cortex, the temporal lobe—all these and more are entwined in a complex network. Then, if the joke lands, the motor cortex produces laughter.”

“Which part are you missing?”

Dr. Neumann continued without acknowledging Bateman’s barb. “The neuroscience is complicated, but every joke shares an underlying structure: incongruity then coherence.”

“I’m confused.”

“It’s simple: you lead the listener along with a series of premises which help to establish certain expectations. Then, you introduce an anomalous piece of information which requires the listener to completely reinterpret everything that came before. It’s very scientific.”

Bateman had tears in his eyes.

“What’s wrong, Mr. Bateman?”

“It doesn’t count if I’m laughing at you.”

Dr. Neumann continued to work slowly, alternating between direct cortical stimulation and resection. As he placed the probe down and reached for his scalpel to excise a final, particularly tangled piece of tumour, Dr. Khan tapped him on the shoulder.

“I don’t want to question your authority,” she whispered, “but based on the fMRI, further resection could be a mistake.”

“There’s brain shift whenever this much tumour is removed. fMRI can’t account for that—that’s why we do direct cortical stimulation, too.” Dr. Neumann began turning back toward Bateman.

“Even so,” Dr. Khan insisted, “isn’t the benefit of further resection minimal against the risk of tissue damage? You’ve pushed it so far already, and as you said, there are multiple critical networks in this area.”

Dr. Neumann looked around at the rest of his team. Not long ago, they’d been a focused but jovial bunch laughing at Bateman’s jokes in spite of themselves. Now, they were silent, staring back at him: he could feel the anxiety in their eyes.

“Have you read the latest literature review on resection magnitude?” he said. “No? For a patient like Bateman, the more tumour removed, the better.”

“But—”

“It has to come out. All of it. Please, this last part requires my full attention.”

Dr. Neumann turned back toward Bateman’s brain. He leaned into the microscope and began removing the piece of tumour which was knotted treacherously around healthy tissue. After an agonizing twenty minutes, he put down his scalpel.

“What’s your last name?” he asked, praying that he’d removed the final piece of tumour without damaging vital tissue.

“It’s Bateman.”

Dr. Neumann leaned back and smiled. A sigh of relief passed through the room.

“That’s all?” he said. “I was beginning to think your name always came with a punchline stitched onto the end.”

The whole surgical team laughed. Bateman, however, remained silent until the laughter had faded away.

“What’s so funny?”

THE WINE COLUMN

By Michael Welsh, K.C.*

“In life, as with wines, you have to appreciate the journey as much as the destination.”

—Samuel

Johnson

“CRAFTED” WINE

As I wrote about several columns back, the last couple of devastating winters in the Okanagan and Similkameen have made their wines a potentially endangered species, at least for the next year or two. As a result, and while the massive vineyard replantings and restorations are occurring, winery associations turned to the B.C. government for relief, asking to be able to import grapes so that they have product to sell in the meantime.

A number of people in the wine industry in British Columbia express concerns about how making wine with imported grapes could cause harm to British Columbia’s reputation as a wine region, as did I in past columns in this magazine. But it has occurred. Government relief was granted in 2025/2026 for grapes from the 2024 season, and the wines that have resulted are now on liquor store shelves.

In this column, I do a bit of a dive into how this came about and review some of the wines now for sale.

By way of background, grapes purchased from outside British Columbia face a government markup of eighty-nine per cent on the first $11.75 of the

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

cost per litre and twenty-seven per cent after that. Factoring in other winemaking costs, that markup can turn a $20 bottle of wine into one costing $35. Along with those wines not being eligible for BC VQA status, it was a disincentive for land-based wineries (which comprise most wineries in the province) to import.

Then came the winter of 2023/2024, which followed on a devastating 2023 grape-growing season where crop levels were reduced by about fifty per cent due to winterkill in the preceding winter. In January 2024, on a series of five moonless nights, a killing frost slowly descended on the Okanagan and Similkameen Valleys (and on grape growing areas in parts of the Kootenays and Thompson) that killed entire vineyards. Once spring arrived, the level of loss became clear: there would be almost no 2024 crop and many vineyards, especially in the Black Sage area and in the Similkameen, had to be ripped out and replanted. This means that they will not bear crop for about another two to three years.

This crisis had been compounded by a prior lack of tourism due to the extensive wildfires in 2022 and 2023, where the B.C. government in August 2023 actually told people not to travel to the Okanagan (although it soon after rescinded that announcement, by then the damage had been done with people cancelling holiday plans). Wineries had lost their lifelines and, unless they had sufficient inventory from prior years, would have no wine to sell in 2025 and potentially for a couple of years after that.

Meanwhile, to the south in Washington, Oregon and California, grape growers were awash with grapes. In Washington in particular, there were bumper crops but few buyers, as the largest winery conglomerate, St. Michelle Wine Estates, cut its grape purchases by forty per cent. It was the opposite crisis to that in British Columbia. Too many grapes with no home.

A synergy developed where B.C. wineries turned primarily to Washington growers (but also to Oregon, especially for Pinot Noir, and to a lesser extent California) to fill the void. But they could not afford to make those imported purchases without relief from the B.C. government markups. Intense lobbying, mostly by Wine Growers British Columbia (“WGBC”), an industry group, began.

Faced with pressure from the wine and tourism industry and local governments in their communities, the B.C. government eventually listened and in July 2024 announced its relief plan, entitled the Vintage Replacement Program. Under that relief program the Liquor Distribution Branch determines the maximum amount of relief available to each winery based on the five-year average of markup concessions and rebates normally provided for wines made by that winery in British Columbia, throwing out the

high and low numbers (a complicated formula that I am glad I do not have to work out). After exceeding that amount, wineries must pay the standard markup.

The program allowed for wines stated to be made from “non-B.C. grape and grape juice and unfinished wines, including first fermentation for whites and malolactic fermentation for reds”. This gave wineries a wide latitude to import whole grapes and unprocessed juice, in addition to nearly finished bulk wine to fill more immediate needs.

Many Okanagan/Similkameen wineries took that incentive with about twenty-five per cent of the 300 odd wineries in the area importing grapes, juice or wine. As you will see from the wines below, imports were mostly from the United States, but also from Ontario and New Zealand.

But this special government support is time-limited as it took effect on April 1, 2025 and expires on March 31, 2026. This is a problem for wineries that bought red wine grapes, as the resulting wines are generally aged for a year or two before release. As one wine consultant put it:

“Acres and acres of dead vines,” he said. “What makes this an existential crisis for the British Columbia wine industry is the massive replanting effort that will be needed, which is only possible over a period of several years.

“Wine is not a commodity that you can just turn on next year. The average cost to replant an acre is $50,000 Canadian, with additional farming and production costs on top of that. Once vines are replanted, it’s three to four years to a fully productive harvest, then it takes time to make the wines and age them. That takes us to 2031 before the industry can recover to the levels of grape and wine production we saw from 2018 to 2022.”1

So far, there has been no indication that the B.C. government will extend the program to address this issue of later released wines or to allow more imports in the next couple of seasons. It appears that the government believes it has done enough for the wine industry, and I expect there are concerns (that I share) about allowing wineries to import on a longer-term basis and consequently muddying the waters as to the wines produced in this wine region. And then there is the provincial deficit and debt, that is mushrooming. According to recent projections we are headed toward another $10 billion operating deficit and provincial debt is close to $100 billion now and on track to hit $155 billion within the next three years, with interest payments soon eating up $6 billion a year.2 The government needs cash and has other priorities when it comes to who it helps.

Meanwhile, a fact that is often overlooked is that this crisis brought on by climate change is not province-wide. Vineyards on Vancouver Island and in the Fraser Valley were unscathed and had a good 2024 crop and are on tar-

get to do so again in 2025. And in many areas of the Okanagan vineyards are recovering and good crop levels are expected.

Now to some of the “crafted wines” produced. That moniker was made up by WGBC and although it does not make the provenance of the product completely clear, most wineries and the BC Liquor Stores have been open about their origin. BC Liquor has created a special section for this category, as these wines cannot be BC VQA, not being produced from B.C. grapes. Most wineries have also been candid in their labelling, with the front labels stating the origin of the grapes and with different artwork from the labels for B.C. wines. For instance, Poplar Grove calls them their “Cascadia” series, while Quail’s Gate uses “Field and Flight”, Tantalus “Further Afield”, Hester Creek their “Columbia Valley Collection”, and Fort Berens “Here and There”.

As no reds and few sparkling wines have yet been released, I focus on the whites and rosés. All are well made, a testament to the cooperation between the B.C. winery and the foreign grower. Pinot Gris seems the most widely made, followed by Sauvignon Blanc and Viognier. And when you note the prices (from under $20) you realize how hugely our government taxes U.S. wine. So enjoy U.S. wine made in Canada while the savings last.

FORT BERENS ESTATE WINERY RIESLING 2024

Washington State #364904 $23.99

This is slightly off-dry Riesling with grapes from a vineyard in the White Bluffs AVA area with the grapes crushed and fermented there, and the wine then shipped to the winery in British Columbia where it was finished and bottled. The winemaker collaborated in the making of the wine in Washington to keep it to winery style. As with many of these “crafted wines”, the alcohol level is lower (twelve per cent here), which makes them more pleasant to sip. A white gold in colour, it shows jasmine, lemon-lime and green apple on the nose with wet stone and herbal notes. The flavours on the slightly effervescent palate are of more green apple and lime, along with some white grapefruit, and a streak of minerality on it lifted finish. It is made for spicier dishes, whether Indian, Szechuan Chinese, Thai or Vietnamese. Or go Mexican—think tacos.

TINHORN CREEK PINOT GRIS 2024

Washington State #289535 $22.99

Again this was made in Washington and shipped to British Columbia to finish and bottle with the Tinhorn winemaker’s involvement. It has a vibrant nose displaying ripe peach, honeydew melon and ripe apple with some orange zest and wet stone. Medium-bodied on the palate the flavours are of

lemon, more melon and peach, as well as some tropical fruit leading to a bright medium length finish with refreshing acidity. Recommended by the winery are grilled pork tenderloin with fruit chutneys, pork sliders with hoisin sauce, samosas or spring rolls with dipping sauces, or a Creole crusted halibut. Again it will also do well with East or South Asian cuisines.

SANDHILL DESTINATION SERIES PINOT GRIS 2024

Washington State #274817 $21.99

This wine is another in this series of wines made in Washington for B.C. wineries and then shipped as wine and finished and bottled here. It has bright citrus on the nose, along with ripe melon and yellow peach, backed with some good minerality on the nose. With only 12.2 per cent alcohol, the palate is medium-full, with tart lemon, some green peach and pear, and a bit of spice, and it finishes well with good acidity. It makes a good sipper with some appies, or will do well with roast duck or pork with a fruit salsa, or a fuller white fish such as halibut, or a grilled seafood mix. It will also do well with milder Indian dishes.

MISSION HILL RESERVE SAUVIGNON BLANC 2024

New Zealand #323191 $25.99

The Mission Hill group went further afield for grape juice. Along with Cedar Creek (part of the same winery group) they shipped it in from New Zealand. This wine in very much in the New Zealand style with aromas of gooseberry, green apple and lime, and a bit of the infamous “cat pee” along with grassy notes. The palate with thirteen per cent alcohol is richer with green peach and some melon mixed with citrus lime and a bit of tropical fruit on the clean rounded finish. It rates 91 points in Gismondi on Wine. The winery suggests pairing it with a soft cheese or a potato-crusted salmon filet. Other similar ideas are seafood like prawns or scallops, perhaps on pasta with a mushroom sauce, or baked halibut or other firm fish.

POPLAR GROVE CASCADIAN SERIES SAUVIGNON BLANC 2024

Washington State No SKU $30.00 (approx.)

This time the wine was made in British Columbia from Washington state grapes in the Horse Heaven Hills and Yakima Valley AVAs, crushed in Washington with the resulting juice fermented at the winery in British Columbia. It was fermented partly in steel tanks and partly in oak barrels with weekly lees-stirring. It is more in a California style than a New Zealand or Loire Valley one. A pale lemon yellow, it has a nose of lemon-lime, kiwi and white

peach with a hint of blossom and some minerality. With 12.6 per cent alcohol, the flavours are again of lemon-lime, lemon curd, greener nectarine, more kiwi, yellow plum and a bit of green pineapple. It is slightly off-dry on the medium long finish. The same food suggestions as for the Mission Hill Sauvignon Blanc apply. It is available from the winery online or in person (a highly recommended experience) or at private wine and liquor stores.

HESTER CREEK COLUMBIA VALLEY COLLECTION SAUVIGNON BLANC 2024

Columbia Valley, Washington State #248565

$20.00 (approx.)

The winery had the grapes shipped from the White Bluffs AVA and made the wine at its B.C. winery. This is a richer style than the two above. Only 12.4 per cent alcohol, it is a very pale white gold, with a nose of yellow peach and some tropical fruit along with the expected lemon-lime and gooseberry. It has a full mouth feel and the palate displays more peach, with honeydew melon and a bit of pineapple and gooseberry. The finish is zesty and long lasting. Again the same food pairings are recommended. Or sip with cheeses and bread or crackers (goat cheese will go well). You can buy it from the winery in person or online and at private stores such as Save-OnFoods or Everything Wine.

DIRTY LAUNDRY WINERY RESERVE CHARDONNAY 2024

Yakima Valley, Washington State No SKU

$24.00 (approx.)

The juice was shipped to the winery where the wine was made. Made more French style than U.S. style, it was fermented in French oak barrels with a partial malolactic and again has a pleasantly low alcohol level of 12.5 per cent. Pale gold in colour, it has aromas of lemon rind, green apple and peach with some tropical notes and hints of caramel and some minerality at the back. The palate is fresh and light with yellow peach, some ripe pear, lemon citrus and a touch of vanilla and spice. It finishes bright and clean with good acidity throughout. The winery suggests having it with seafood pasta, halibut or other richer fish or a risotto. It will also go well with an herbed chicken or pork chops with a fruit salsa. It is available from the winery in person or online or at private liquor stores or Save-On-Foods or online with Vivino.

THREE SISTERS WINERY CROSSROADS SELECTION ROSÉ 2024

Washington State #374541 $25.00 (approx.)

The grapes were harvested from a single vineyard in the White Bluffs AVA, Washington where they were also pressed. This is one hundred per cent

Syrah Rosé that is slightly off-dry. The colour is a pinkish-orange and very pale and the light aromas are of strawberry, peach and some floral notes. The palate is soft and creamy with more strawberry and peach and a bit of ginger spice. It has a mellow medium long finish with sufficient acidity to hold it all together. The winery suggests food pairings of grilled chicken, salads full of summer vegetables or charcuterie. It will also go well with a roasted or grilled salmon or steelhead. Buy it from the winery in person or online or at private stores such as Everything Wine.

QUAIL’S GATE FIELD AND FLIGHT ROSÉ 2024

California #289377 $19.99

A great value wine made with grapes from a vineyard near Eureka, California. Again it has a pleasantly moderate alcohol level of twelve per cent, making it an ideal sipper for summer and early fall. It is very pale pink in colour and the nose displays bit of rose petal, followed by wild strawberry, raspberry, cranberry and some minerality. The flavours are more light berry fruit and some yellow peach and green plum, with a zesty finish. Food choices include a Nicoise salad, grilled tuna, a plate of olives and cheeses, grilled salmon and, for Thanksgiving, roast turkey.

ENDNOTES

1. Julia Duin, “How US Wineries Saved Canada’s Wine Industry After a Devast ating Freeze”, Food and Wine (16 January 2025), online: <www.foodandwine.com/british-columbia-wineries-saved-bywashington-winegrowers-8776080>.

2. Wikipedia, “British Columbia Government Debt”, online: <en.wikipedia.org/wiki/British_Columbia _government_debt>.

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NEWS FROM BC LAW INSTITUTE

By Ed Wilson*

UNDERSTANDING LAW REFORM THROUGH THE DIRECTOR AND OFFICER LIABILITY PROJECT WITH JOHN SMITH

When do corporate directors and officers run the risk of personal liability in relation to torts committed by the corporation? The answer to this question remains unclear under Canadian law. The uncertainty resonates with anyone involved with corporate governance or who serves as a volunteer on not-for-profit boards, including many legal professionals themselves.

Ken Chau, communications manager at the BC Law Institute (“BCLI”), spoke with John Smith—project committee chair, senior counsel at Lawson Lundell and my colleague—about the Director and Officer Liability Project and the law reform process. Drawing on decades of experience in law practice, teaching and board service, John explained why change is needed and how the project seeks to bring fairness and clarity to issues of individual liability. Read their conversation below.

Tell me about what led you to take part in the project committee.

Ed was asked by BCLI staff for recommendations on who might serve on the committee, and he suggested my name (with my consent). That led to a conversation with the BCLI staff lawyer. The project seemed worthwhile, so I said, “Sure, count me in.” Then I was asked to chair the committee and was promised that role would be easy—just opening meetings and helping with agendas. It wasn’t quite that simple, but not too demanding either, and I’m glad I took it on. I developed a significant interest in director liability over 30 years ago. I was involved in client matters and then CLE sessions on employment-related director liability. I’ve learned a great deal through this current project—making the experience especially worthwhile.

* Ed Wilson is the chair of BCLI. If you are interested in learning more about the Rationalizing Non-Statutory Director and Officer Liability Project, visit the BCLI website at <www.bcli.org>.

Was there any moment or issue that made you feel this work was needed?

I hadn’t been familiar with the case law in this area and was struck by how divergently courts approached it. This indicates that it’s worth a look. It was clear from the outset that we were not going for statutory reform. It would be very difficult to come up with a statutory formulation to cover this area. The idea was to describe the current situation and, without taking sides, suggest a more coherent way of looking at it. “Coherence” was the word we kept coming back to. Providing it in this area would be a worthwhile contribution—and the kind of work BCLI is well suited to take on.

Why does this area of law need reform?

I wouldn’t say it needs reform so much as clarification and coherence. There are conflicting lines of authority. One view holds that liability rests with the corporation alone except in cases of serious personal misconduct. Another sees that directors and officers should be personally responsible for the corporation’s torts since the corporation is a metaphysical entity acting through them. Both extremes appear in case law.

It is difficult for any court to bring clarity because few cases have gone to a full trial with a determination on liability. Most are dealt with at the pleadings stage. In some instances, the courts strike the claim; in others, they allow it to proceed. There can’t be meaningful guidance about the substantive basis for personal liability without being able to grapple with a fully developed set of proven facts. Also, directors are often named in claims, not always due to strong cases, but as tactics to pressure settlements. Their insurers may settle just to avoid trial costs or burden of a trial. If we can provide guidance to discourage these tactical claims, that would be valuable.

Judicial economy isn’t served by meritless claims. The aim is to bring coherence and provide a basis to help filter out such claims.

That’s why this project is important. This could be helpful not only for the judiciary but also those in the legal profession preparing or arguing cases. One committee member mentioned there would be strong interest in this report from people who practise corporate and commercial litigation.

Doesn’t the principle of separate corporate personality protect individual directors and officers from personal liability?

Corporate personality was about protecting shareholders from personal liability. It wasn’t meant to address directors’ personal liability. Corporate statutes clearly say directors owe duties (like due care, honesty, and good faith) to the corporation itself. The circumstances in which they owe duties to shareholders was limited by case law, but that’s been dealt with in part through the oppression remedy. Those rules govern relationships between the corporation and shareholders, which is not part of our focus. Corporate

law does not address directors’ personal liability to third parties, nor is it meant to. Directors aren’t usually liable for corporate financial obligations unless they’ve personally guaranteed them.

Courts have only seriously looked at directors’ personal liability for corporate torts in the last 30 years, starting with cases like ScotiaMcLeod in the 1990s.1 No principle says directors can never be personally liable. For example, in that case, the court let the claim proceed against two directors who were directly involved but dismissed it against the rest of the board who had no direct role. Also, in a Supreme Court case—in which this point received very limited attention—it was affirmed that in a one-person company, the individual can be liable as well as the company.2 So, the thought that the corporate personality doctrine shields directors is a misconception. From the start, Salomon v. Salomon was about protecting shareholders, not directors.3

How does the committee ensure a comprehensive perspective?

We have a mix of perspectives: corporate lawyers Brian Hiebert (DLA Piper), Glynnis Morgan (McCarthy Tétrault), and me, alongside litigators Carey Veinotte (Bojm, Funt & Gibbons LLP) and Ryan Darby (Whitelaw Twining). Justice Julia Lawn was with us and provided very helpful input before she was appointed to the bench. A key participant is Joost Blom, K.C., professor emeritus at UBC, who has done extensive work in tort law and co-authored Economic Torts in Canada with Peter Burns.

There was broad consensus, which we hope is a good sign. There is always a risk of “group think” where a small group thinks it has found a solution, only to face the question: “What are you talking about?” BCLI helps guard against that with a strong review process. [Before releasing any final report, BCLI generally publishes a consultation paper and invites feedback, which will occur for this project in fall 2025.]

It’s your first time on a BCLI law reform committee; what stood out to you about how the committee worked together?

We’ve had good participation, which is important in a small group. Early on, we spent time reviewing materials prepared by staff, like academic and jurisdictional reviews. I was impressed by the work the BCLI staff lawyers produced—often in a short timeframe, but always thoughtful and detailed, without driving us in any direction. If that’s how BCLI typically operates, it speaks well of the organization’s commitment to careful, high-quality work by both staff and volunteers.

We didn’t see the potential split between tort and corporate lawyers, where the tort side pushes for broader liability, and the corporate side resists. On some hypotheticals, corporate lawyers said, “Yes, directors should be liable here,” and in others, the tort lawyers said, “No, not in this

case.” There was real openness and practicality in how people approached the issues. The hypotheticals helped focus discussion and brought out real legal questions the case law doesn’t always clarify.

Were there any challenging or insightful debates during the meetings?

One of the first things we did was review the academic literature and examine how other jurisdictions approach these issues. Some jurisdictions have clear organizing principles, but the results were often disappointing or inconsistent—and not much of an improvement or ideal. That surprised us—we had hoped to find a “magic bullet” elsewhere, but it wasn’t the case.

Why should other legal professionals consider supporting BCLI through committee work or in other ways?

In my experience, you end up learning a great deal, even if you come in with a solid background. Committee work is worthwhile for legal professionals with a solid understanding of an area, even without deep expertise. It offers a real opportunity to contribute meaningfully—sometimes to actual law reform, and at the very least to a clearer understanding of the issues, benefiting the profession, the judiciary and society more broadly.

Why is independent law reform important in B.C.’s legal landscape?

Much of our civil law still relies heavily on case law—especially in the areas of obligations and property. In these areas, the law evolves through judicial decisions, case by case. Judges focus on resolving the disputes before them, and while outcomes are usually sensible, the reasoning can diverge, creating uncertainty about what the law is. That is true in this area.

When a legal rule is outdated or unclear, BCLI steps in to suggest reforms or clarification. I’ve seen this firsthand with the Trustee Act. Years ago, comprehensive work was done on that statute—some of which has been implemented through amendments and introduced updates. But a full reform hasn’t happened in British Columbia, even though a well-developed Uniform Trustee Act exists.4 The government has limited resources for this kind of detailed review—especially when it’s all case law. And no single court decision can resolve every nuance of a particular issue. Judges write, often forcefully, to support their decisions, which isn’t the best way to approach coherence and, when needed, reform. If BCLI didn’t do this kind of work, I doubt it would get done—I don’t know who else would take it on.

ENDNOTES

1. ScotiaMcLeod Inc v Peoples Jewellers Limited (1995), 26 OR (3d) 481 (CA), leave to appeal refused [1996] 3 SCR viii (note).

2. Peracomo Inc v TELUS Communications Co, 2014 SCC 29.

3. [1897] AC 22 (HL).

4. The Uniform Trustee Act, developed by the Uniform Law Conference of Canada in 2012, was heavily influenced by the 2004 BCLI report A Modern Trustee Act for British Columbia The Uniform Trustee Act has been substantially implemented in Alberta and New Brunswick.

ANNOUNCING THE 2026 ADVOCATE SHORT FICTION COMPETITION

ELIGIBLE CONTRIBUTORS

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

ELIGIBLE FICTION

A fictional work, written in English, to a strict maximum of 2,500 words that deals, if only incidentally, with legal subject matter and that includes at least two place names in British Columbia other than Vancouver or Victoria. 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 4, 2026. Submissions will not be returned, so authors should maintain copies of their work.

FORMAT FOR SUBMISSIONS

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

ADDRESS FOR SUBMISSIONS

Advocate Short Fiction Competition

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

The Advocate #1918 – 1030 West Georgia Street

Vancouver, B.C. V6E 2Y3

JUDGES

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

PRIZES

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

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

Third prize:$100 gift certificate at a local restaurant and possible publication in the Advocate

Winning entries will be selected by, at the latest, February 12, 2027. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate.

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

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for:

(a) possible selection as winning entries;

(b) possible publication in the Advocate; and

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

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

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

PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Heidi Wudrick*

BRITISH COLUMBIA RESIDENTS NEED MORE SUPPORT NAVIGATING LEGAL INFORMATION, SAYS NEW REPORT

A new report by a research team at Allard Law highlights the challenges B.C. residents face when looking to access public legal education and information.

Titled Flourishing: A Plan to Strengthen Public Legal Education and Information, the report makes 30 recommendations to improve the resources and supports that help B.C. residents understand the law and navigate legal issues.

Allard Law Professor Dr. Catherine Dauvergne, K.C., the academic lead on the project, says her team found that although there is a plethora of useful, accurate legal information and resources available to B.C. residents, finding the right information can be a serious challenge. Currently, some of the most widely used resources in the province include legal information hotlines such as AskJES, a legal information hotline staffed by Allard Law students, as well as websites like the People’s Law School, which provides guidance on topics including how to write your own will.

Over the course of an 18-month study, researchers asked B.C. residents across the province about their experiences seeking legal information and found that many people experienced long wait times, struggles with legal jargon and a lot of frustration.

“People reported being referred over and over and over again, but never to a place that could actually help them,” says Dauvergne. “In every focus group, we had people crying as they recounted the different parts of their journey. It’s really disheartening.”

The report’s top recommendations include creating a dedicated phoneline to support wayfinding and legal triage, as well as a central hub organi-

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

zation to pool research, share best practices and increase collaboration across the free-legal-resource ecosystem.

“This support is a really important piece of the access to justice puzzle,” says Dauvergne. “It’s not going to solve the access to justice crisis, but our recommendations can make a contribution to reducing the amount of frustration, emotional drain and time it takes people to resolve their legal issues. There’s all sorts of evidence that the longer people have a legal problem, the more that flows into other aspects of life.”

Aara Johnson, Project Director, shares that public legal education and information are unique in British Columbia. “In speaking with individuals in Canada, Australia, the U.K. and the U.S., many say that B.C. is more innovative,” adds Johnson. “These recommendations will strengthen what is already seen as a rich ecosystem of resources.”

Another key recommendation is to increase hiring and support for frontline legal information providers, who may not have formal legal training. “We learned a great deal about what it’s like to be the only person in a small community in the north of the province who is available to answer legal questions,” says Dauvergne. It can be “isolating and hard to know if you’re right—and it’s high stakes.”

Working in partnership with the BC First Nations Justice Council, the team also found that resources addressing the specific needs of Indigenous people and communities were often not available. The report recommends supporting the BC First Nations Justice Council through both partnerships and funding, to increase its capacity to develop and co-develop resources.

The report, funded by the Law Foundation of British Columbia and cosponsored by the Law Foundation and the B.C. Ministry of the Attorney General, also highlights a number of strengths that organizations can build on. “We learned that the people who do this kind of frontline legal work are very, very dedicated human beings who are working incredibly hard,” Dauvergne says, noting that “their work is greatly appreciated by the people they’re serving.” And, despite challenges, staff at the newly established Indigenous Justice Centres, created by the BC First Nations Justice Council, described their work as overwhelmingly positive.

Dauvergne hopes the report’s recommendations will set an agenda that leads to meaningful change. “If we repeated this work five years from now, I’d like to see people getting help faster, feeling less frustrated and more confident that they know where to go for help.”

You can access the full report, Flourishing: A Plan to Strengthen Public Legal Education and Information, at <commons.allard.ubc.ca>.

TRU LAW FACULTY NEWS

By Ryan Gauthier*

TRU Law has recently had the pleasure of celebrating its 12th graduating class! On June 3, 2025, 111 students convocated from TRU Law, and are joining the legal profession in British Columbia and across Canada.

TRU Law celebrates all our students. Yet, we would like to particularly acknowledge the Law Society Gold Medal recipient, and the class valedictorian, below, both of whom hail from the B.C. interior. We would also like to acknowledge the students who graduated with distinction: Ashley Desautels, Andrea Imola and John Spencer.

In addition, we would like to acknowledge Frank Quinn, K.C., who was awarded a doctor of laws degree, honoris causa from TRU. Frank is a wellknown insolvency and finance lawyer, developer and community leader in Kamloops. He was instrumental in helping TRU transition to a university in the 2000s, and in bringing a law school to TRU. He has been an integral part of the life of TRU Law since before its inception, and we are pleased that he was recognized by TRU with this honorary doctorate.

TRU LAW GOLD MEDALLIST

John Spencer was awarded the Law Society of British Columbia Gold Medal for 2025. John was born and raised in Lillooet, just two hours’ drive west from Kamloops. He studied history at TRU before beginning his studies at TRU Law. During his time in law school, John received the Gregory S. Pun, K.C. Entrance Scholarship and the Lawson Lundell LLP Award, as well as multiple course prizes. After graduation, John will complete his articles with MJB Lawyers in Kamloops, before clerking at the Supreme Court of British Columbia.

* Ryan Gauthier is an associate professor at the TRU Faculty of Law. Contrary to expectations, he has not spent his entire summer playing Civilization VII. That is because he just found out Civilization VI runs on his laptop. Just one…more…turn…

TRU LAW VALEDICTORIAN

Lucas O’Fee was born and raised in Kamloops. Before law school, Lucas pursued a career in music. He received a bachelor of music degree from the University of British Columbia and a masters of music degree from the Jacobs School of Music at Indiana University. Lucas performed with professional orchestras in British Columbia, Ontario and Quebec while also working as an ESL teacher.

As a Kamloops local, Lucas prioritized making law students feel welcome both at TRU and in the city. In his 3L year, Lucas served as co-president of the TRU Society of Law Students where he was proud to help put on events and secure funding for law students.

Lucas won course prizes in Tort Law, the Philip K. Jessup Moot, Ethical Lawyering and Business Associations. He has been on the dean’s list and received the Ken Lepin Prize for Excellence in Law. Lucas was part of the top 1L Internal Moot team. He followed up that success by competing in the Jessup Moot in 2024 and the Wilson Moot in 2025, the latter of which saw TRU Law take home the prize for top factum. After graduation, Lucas will clerk at the Supreme Court of British Columbia in Kamloops. After his clerkship, Lucas intends to practise at Fulton & Company in Kamloops.

CLASS OF 2015 REUNION

Just after the Class of 2025 celebrated their convocation, the Class of 2015 had their ten-year reunion in Kamloops on June 13 and 14. As the second graduating class of TRU Law, the class reflected on how attending TRU Law shaped their careers. Led by James Wegener, Angela Barreto, Kara Leduc and Nic McIlhargey, the formal banquet also included a tribute to two classmates who passed away in 2020.

We are looking forward to planning the next reunion with the Class of 2016!

THE ATTORNEY GENERAL’S PAGE

By the Honourable Niki Sharma, K.C.*

TIME TO RESOLUTION: WHY IT MATTERS MORE THAN EVER IN BRITISH COLUMBIA

Every actor in our justice system, from judges to lawyers and court staff, understands the pressing need to ensure our court system operates in a timely manner. This is not just about meeting deadlines; it is about ensuring prompt resolution for those involved and allocating precious court resources. We live in a society governed by the rule of law, and timely access to justice is one of its foundational pillars. As the saying goes, “Justice delayed is justice denied.”

As someone with responsibility for our province’s justice system, I see the impact of delays every day. I understand the frustration of victims waiting for closure, the anxiety of accused persons waiting for their day in court, the strain on families caught in limbo and the frustration of civil and family litigants who want their day in court.

This is not a new conversation—calls for timely processes in the justice system have been around for years. However, the challenges of volume, complexity and cost continue to intensify, making it clear that we need some innovative thinking. This is a challenge we all need to tackle together.

While certainly an important aspect, this goes beyond the allocation of more judicial resources. It is worth noting that the judicial complement is in the best position it has been in many years. Positions in the provincial and superior courts are being filled promptly. That must continue.

In R. v. Jordan, 1 the Supreme Court of Canada set an 18-month presumptive constitutional ceiling for a criminal trial to be completed in Provincial Court and a 30-month presumptive ceiling for a trial in Supreme Court. We are fortunate that in British Columbia the number of Jordan stays is limited, particularly when compared to other jurisdictions. The latest full-year sta-

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

tistics for British Columbia (2023) show that only 0.04 per cent of new cases in Supreme Court were judicially stayed due to unreasonable delay.2

British Columbia also continues to be active as the law in this area evolves. For example, there are several pending Supreme Court of Canada appeals that raise issues relating to the s. 11(b) analytical framework set out in Jordan. I have been granted leave to intervene in the appeal from R. v. Jacques-Taylor3 (a firearms-related prosecution), which raises issues about the assessment of co-accused delay. I have also applied for leave to intervene in the appeal as of right from R. v. Vrbanic4 (a federal drug-trafficking related prosecution), which raises issues about the assessment of the particularly complex case exceptional circumstance.

However, the time it takes for matters to get to trial is one that extends far beyond the threshold of meeting the Supreme Court of Canada’s constitutional requirements in accordance with Jordan. Any unnecessary delay or time spent that impedes the resolution of a criminal case is not just inconvenient—it has real consequences. Delay causes financial, emotional and psychological burdens for everyone involved: victims, accused persons, witnesses and their families.

The call for timeliness is, of course, not limited to criminal cases. Delays in the family and civil justice system are also a concern. We also know that delays in one area of the justice system (particularly criminal) can have ripple effects on other areas of the justice system. For example, the increase in volume and complexity of criminal cases adversely impacts the scheduling for civil and family cases.

THE CRIMINAL JUSTICE SYSTEM

In some respects, the numbers in the criminal justice system are encouraging. For example, in 2023/24, the Provincial Court met its completion rate standards across all criminal trials. In fact, completion rates remain high: 41,000 cases came in, and 41,000 were resolved. That is a one hundred per cent completion rate. However, the median time to conclusion (the number of days between the first appearance and the date the case was concluded) for adult and youth criminal cases increased from 105 days in fiscal 2019/20 to 172 in fiscal 2020/21, 169 in fiscal 2021/22, 165 in fiscal 2022/23 and 161 in fiscal 2023/24.5 While median time to conclusion is heading in the right direction post pandemic, there is still a 56-day jump from 2019/20 to 2023/24, and it is an increase we cannot ignore.6

So, what is behind this increase? Initial findings show that there is no single overarching reason. The justice system is complex, and so are the cases. One major factor is the time it takes to obtain reports—whether medical, forensic or otherwise. Digital evidence has also exploded in volume. Body-

worn camera footage, surveillance videos, text messages and cellphone data are now standard in many criminal cases. More and more, cellphones themselves are evidence, and processing and reviewing that disclosure takes time. In addition, there are only a handful of forensic labs in the country capable of analyzing laptops and phones, and British Columbia is not the only province using those labs for analysis. Further, while legislative reform and case law have brought about improvements in the law, in doing so they require more pre-trial applications in some types of complex cases, such as sexual assault cases. These cases are also set for longer trials.

Despite these challenges, we also have positive examples of system improvements. Dedicated witness support teams are doing an excellent job keeping cases on track by working closely with victims and witnesses and ensuring they are prepared to testify. Crown counsel and law enforcement are using digital evidence management systems to streamline disclosure, making it easier and faster to share information with each other and defence counsel. The use of Microsoft Teams and Zoom for virtual hearings has been identified as a beneficial change by all our justice system partners. It saves travel time, reduces wait times, and allows for more efficient use of court time. Also, in major crime files, strong communication between Crown counsel and law enforcement has led to better scheduling and time management. In addition, work continues to increase the number of digital documents in court files which will streamline access to information by judges.

While there has been a focus on the timeliness of criminal cases, I have noticed that civil and family justice systems have not received the same level of scrutiny—at least not until recently. That must change. We are now seeing national headlines decrying Canada’s “broken civil justice system”, and academics and legal commentators are echoing those concerns.

FAMILY JUSTICE SYSTEM

Resolving family justice matters in a timely way minimizes the emotional and financial strain on families, particularly children, associated with prolonged legal battles. Section 4 of the Family Law Act and section 7.3 of the Divorce Act both emphasize that parties should attempt to resolve their family law issues through appropriate family dispute resolution processes, such as mediation, before requesting the resolution of those issues from a court.

We have been collectively taking steps to move from time-consuming (and costly) trials toward more collaborative, out-of-court processes that can help address issues and emotions that often drive legal conflict. One example is the Early Resolution process (“ERP”) in Provincial Court, which helps families resolve certain family law matters outside of court, before a formal application is filed. I have spoken about this initiative in this space previously.7

I am pleased that we are seeking to build on the success of this model in the Supreme Court of British Columbia. The Supreme Court and the Ministry of Attorney General recently initiated a joint project to develop a Supreme Court early resolution process with the goal of further meeting the objectives of the Family Law Act and the Divorce Act to promote the early resolution of family matters. This can be achieved by providing families additional services and resources outside the court process, including an early needs assessment and assessment of safety and risk of family violence, referrals to legal advice, information and other services, parenting education, and consensual dispute resolution.

We are also working on reviewing the Family Law Act to ensure it meets the needs of families in British Columbia, reflecting changes in society and court decisions since it became law in 2013.

CIVIL JUSTICE SYSTEM

There is growing recognition that change to the civil justice system is not only necessary but urgent. Chief Justice Skolrood spoke eloquently about this at his welcoming ceremony, quoting United Kingdom professor Richard Susskind: “We need to remind ourselves that the objective of the justice system is not process but dispute resolution... Quite simply, there needs to be a rethink.”

The judiciary has recently turned its attention to timeliness in the civil justice system in the case law.

In 2024, the British Columbia Court of Appeal introduced a new test for want of prosecution in Giacomini Consulting Canada Inc v. The Owners, Strata Plan EPS 3173, 8 aiming to better balance the interests of defendants and the public in maintaining an efficient justice system.

In that decision, the court noted that “[t]here is no doubt … that unreasonable delays in civil proceedings cause systemic harm in undermining public confidence in the justice system and the public interest in a justice system that delivers timely and affordable justice”.

While their circumstances may be different, other jurisdictions in Canada are turning their minds to civil justice reforms. The Superior Court of Ontario, for example, launched the Civil Rules Review (“CRR”) in January 2024, aiming to improve efficiency, reduce delays and costs, and leverage technology. Their Phase 2 Consultation Paper, released in April, proposes sweeping changes to the rules, with a focus on addressing delays, costs and complexities in civil litigation, aiming to resolve all cases within two years.

These findings are in line with the conclusions of the above-noted Court of Appeal decision about the importance of improving public confidence in the justice system by working to increase timeliness and minimize delays.

We can also look to solutions outside our borders and to those in the United Kingdom in particular. For example, statements of truth have replaced affidavits in almost all areas of the law and have been in place for over 25 years, eliminating the cost and administrative burdens created by the requirement for affidavits.

British Columbia has been a leader in innovation in the civil justice system, with developments like the Civil Resolution Tribunal. There is more that can be done to continue that position of leadership. How we conduct chambers practice in the province is an area for examination, building, for example, on pilot projects that are aimed at increasing digital filings and access to virtual hearings for short matters before associate judges. In addition, there is a JP Adjudicator process at Provincial Court for the Richmond and Robson courthouses, and there are possibilities that the use of JP Adjudicators could be expanded.

NEXT STEPS

We are always looking for more ideas about how to make the justice system better and improve timeliness.

For instance, the Supreme Court of British Columbia has created a Civil and Family Chambers Practice Working Group with a goal of improving the process for short and long chambers matters. The court is actively seeking feedback from interested members of the bar, litigants, organizations and the public by email to <chambersfeedback@bccourts.ca> until September 5, 2025. A link to more details about this initiative can be found at the court’s website in the announcement of July 11, 2025.

So, with all this in mind, I turn this question to those reading this now. What are your thoughts on how we can improve timeliness in British Columbia? Have you experienced delays in the justice system, and what impact did it have on you, your clients or your community? What ideas do you have for making the system more efficient, more responsive and more just? Let us keep the conversation going — because we all have a role to play in ensuring timely access to justice for everyone. Share your thoughts with us: <CCPLD@gov.bc.ca>.

ENDNOTES

1. R v Jordan, 2016 SCC 27.

2. Supreme Court of British Columbia 2023 Annual Report.

3. R v Jacques-Taylor, 2024 ONCA 458.

4. R v Vrbanic, 2025 ONCA 151.

5. Court Services Branch Microsoft Power BI Dashboard: Microsoft Power BI, Fiscal 2019/20-2023/24.

6. Ibid, Fiscal 2019-20-2023/24.

7. “The Attorney General’s Page: Improving the Family Law Landscape in British Columbia” (2024) 82 Advocate 743.

8. Giacomini Consulting Canada Inc v The Owners, Strata Plan EPS 3173, 2023 BCCA 473.

Nicole

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

NOS DISPARUS

By R.C. Tino Bella

Bo Fodchuk

Boris William Frederick Fodchuk, known universally as “Bo”, passed away peacefully on May 8, 2023, five weeks before his 93rd birthday. He was the first of his family to be born in a hospital, not on the farm of his parents in Vegreville, a small Ukrainian farming community in Alberta. His three siblings, sisters Marion and Eugenia (Jenny) and brother Orest, were much older. As a child, he contracted pneumonia but survived after being treated with a new wonder drug, penicillin. His grandfather had died of pneumonia the year before. He grew up on the farm surrounded by his large immigrant family, playing baseball and hockey and working on the farm. He went to the one-room Kolomea school until he entered Vegreville High School for grades 11 and 12. When he graduated, his father said that one of the boys could have the farm and the other could go to university. Bo never said whether he got the better of the deal.

After undergrad in Alberta, Bo entered UBC law school in 1956. He was planning on going to Calgary when classes ended to look for articles, but near the end of the term, a professor announced in class that Russell & DuMoulin were interviewing that day. Bo wondered who they were but went and was interviewed by three lawyers: Len DuMoulin, Stuart Wallace and Bob Hayman. A few days later, he was offered articles. Some years later, he learned that he had edged out another candidate because he had been married in the Anglican church and the other had been married in a registry. It was different then.

He started his articles with Ben Trevino at Russell & DuMoulin, and then they both joined the firm when they were called in 1960. The firm never

looked back. He began his practice doing wills and estates and gradually moved into real estate, in which he became one of the province’s leading practitioners. He was a strong advocate of, and practitioner in, mentoring articling students and junior lawyers. He spent over 40 years at the firm and its successor. After leaving the firm, Bo continued to advise his long-standing clients and act as an arbitrator and mediator until he finally retired.

Bo was immensely proud of his family: his widow Shiella; his older brother Orest, who survives him aged 103; his children Paul, Lisa, Paula and Carle; and his grandchildren Kate, Christopher, Jessie, Justin, William and Sophia. He combined practising law with raising his family, taking them on camping trips and to the various sports and other pursuits they had growing up. He continued playing hockey and baseball and also pursued curling and golf.

As a junior associate, Bo was asked to prepare a memo on a dispute involving an important client of the firm. It led, in 1967, to an appearance in the Supreme Court of Canada with Bob Hayman. When Bob finished his submissions and sat down, to Bo’s horror, the Chief Justice asked, “Mr. Fodchuk, do you have anything to add?” To which Bo stood and managed to respond, “No, My Lord.”

When Bo passed away, many of his friends and former colleagues sent tributes. There was a common theme, perhaps best summarized by one: A very kind, wise and altogether humane person. I am very sad to hear this news, but very glad I had the opportunity to learn from him and experience his decency for so many years.

Most of the tributes spoke of his kindness and patience. Many commented on his mentoring when they were articling students and young lawyers. He helped them sort problems, find their way and develop the skills needed to practise law. For a while, Bo handled the firm’s reporting of possible claims of negligence. When one young lawyer went in to see him and report a possible claim, fearing his career was over, Bo told him: “You haven’t even started to practise law until you’ve reported yourself to the insurer, been disciplined by the Law Society, and been sued by a client for negligence.” Bo helped sort that problem, and the young lawyer had to wait for another opportunity to be sued.

Bo knew who he was. He was comfortable and confident in himself. He disliked arrogance and hubris, but he had a deep understanding of people and compassion and empathy for them. He always maintained a balance in his life: family, friends, clients, colleagues, but always family first. He had a quiet impact on those around him.

Bo did a lot of things under the radar. He served for many years on the board of the British Columbia International Commercial Arbitration Centre

and helped recruit new members to the board. He corresponded regularly with members of his law class. He helped to establish the Bowen Island Public Golf Course.

Bo was immensely proud of the accomplishments of his widow, Shiella. With help from Ann Kober and Elaine Reynolds, he set up Shiella’s Power of Education Africa Foundation in Canada and Kenya. The foundation funds young Kenyans, mostly young women and many of whom are orphans as the result of HIV and AIDS, to go to school from age 12 and then on to training schools after graduation. One young man, Felix, and later one young woman, Pauline, both of whom were orphans and went through the program, were accepted into law school in Kenya. When Bo learned of Felix’s acceptance, he went to the Vancouver courthouse library and asked Johanne Blenkin, who had been the librarian at Russell & DuMoulin in the early ’90s, if there were any texts taken out of circulation that he might send Felix. He made clear, gently, that he was looking for relatively current texts. His passion and enthusiasm for Felix’s progress charmed the staff, and they were able to provide him with a number of texts, package them up for him and carry them down to his car. Felix has now graduated and qualified to practise in Kenya. Both Felix and Pauline have served on the foundation’s board in Kenya. One of Bo’s greatest disappointments was that Felix has not yet been able to come to Vancouver.

Bo was a wonderful friend, mentor and colleague. He always tried to be kind, generous and loving. He was tolerant of the foibles of humanity. He has left a broad and profound legacy for us all.

Richard Olson and Shiella Fodchuk

ЖЖЖ

Angela Mae Spanjers

Angela Mae Spanjers sadly passed away on February 22, 2025 at the young age of 43 years, surrounded by her loving family after a very difficult and courageous battle with cancer.

Angela was a generational lawyer, who had an enormous impact on Richards Buell Sutton LLP, as well as on her colleagues and her clients during her brilliant legal career. But to fully understand this extraordinary individual, we must begin the story before Angela became a lawyer.

Angela was born on August 17, 1981 in New Westminster. She was the daughter of William and Ann Dobie, and the younger sister of Billy and Katie. I understand that her father was an astute, hard-driving businessman. He owned a series of car dealerships and was an avid investor in real estate. I know that Angela learned a lot from her father about the challenges of the business world. Although her father became successful, she told me stories of the early days in her life when their electricity was almost cut off at times, and as a young girl selling parking spots at the Cloverdale Rodeo on a vacant lot owned by her dad.

Ann Dobie was a devoted mother and active member of the Catholic church. I suspect that Angela’s deep sense of empathy and understanding came from her mother. However it happened, Angela was clearly equipped to take on the world in a uniquely deft manner. She possessed the rare combination of natural business acumen and common sense, wrapped in kindness and a desire to look for the best in people. She understood that the world could be a tough place at times, but with hard work and perseverance came success.

Angela found her soulmate in her husband, Glen Spanjers, with whom she shared two beautiful children, Emily and Liam. They had an amazing and full life together as a family. Angela and Glen were constantly on the move between kids’ sports, school activities, travelling, camping, concerts and a host of other activities. Angela was so proud of her kids. She was also deeply thankful for the incredible strength that Glen showed throughout her battle with cancer. Her difficult journey with cancer was made easier with the constant support and companionship of her sister, Katie.

In addition to being a devoted and busy mother, wife, sister and friend, Angela excelled in her professional world. Angela obtained a B.A. with distinction from the University of Victoria, and then her LL.B. from the University of Alberta in 2006. She articled with Richards Buell Sutton LLP and was called to the bar in 2007. After practising for a number of years she went on to complete the Chartered Professional Accountants of Canada InDepth Tax Course, where she received an award in her third year.

At Richards Buell Sutton LLP she practised in the Wealth Preservation Group, where she focussed on complex estate planning. Soon after becoming a partner at the firm she was asked to join the management committee. Her first major assignment was to oversee the merger of RBS with the Surrey firm of Manthorpe Law, and act as the managing partner of the Surrey office. After getting the Surrey office running efficiently in new premises, she was chosen by her partners to become the managing partner of the entire firm. There was no question that she was the right person to lead the

firm into the future, despite being one of the youngest partners. In a cruel twist of fate, just a few weeks after being unanimously confirmed by the partners to take on this key role, she received her tragic cancer diagnosis. Still wanting to contribute to the success of the firm, Angela stayed on the management committee until her passing.

In her role in management, Angela always brought her sense of fairness to every decision. She had a level of common sense that is rare, and her point of view was always valuable. She could always bring people together and find some common ground on which to build a mutually agreeable solution. Her electric smile was her secret weapon to get difficult decisions across the finish line.

Angela also contributed to the community around her. Angela served on the board of the YMCA BC Foundation. She sat on this board from 2015 to 2024, and under her leadership as chair of the YMCA of Greater Vancouver Foundation she advanced its mandate of legacy giving.

Despite Angela’s enormous accomplishments as a lawyer and leader of Richards Buell Sutton LLP, her greatest attributes were her kindness, empathy and ability to bring people together for a common purpose. Her bravery and candour when facing her battle with cancer were inspirational, teaching us all how to be the best we can be. Angela faced the ultimate test of adversity with courage, grace and even a little humour.

Angela could also be irreverent, sarcastic and sometimes even a little cheeky. I remember visiting her in the Surrey office to discuss finances, HR and a few other mundane topics. When I sat down in her office she was smirking. I asked her why she was smirking. She said, “So, you didn’t notice?” I, of course, being largely oblivious to what is going on around me, replied, “Notice what?” She tossed her head back and said, “I am having a very good hair day.” She really knew how to start a meeting.

Spending time with Angela near the end of her life was an extraordinary gift. When someone knows that time is short, there descends a clarity of thought and purpose that brings some meaningful order to the world. The experience was only clouded by the ever-present unfairness of the situation, in which a loving mother, wife, sister, colleague and friend was going to leave this world too soon. She kept a book beside her in which she was making notes for her family when various thoughts and ideas came to her mind. That struck me as a profoundly strong act that only someone like Angela might do for the benefit of the people whom she loved so much.

We have lost a friend, a colleague and a partner, whom we were incredibly fortunate to have had in our lives. For that, we will always be grateful.

Jeffrey Lowe

Ronald Wilson

Ronald Wilson was born in 1935 in London, England. He was enrolled as a solicitor in England and Wales in 1958 by Lord Denning.

Ron moved to British Columbia in that same year, arriving in Vancouver on July 1 without realizing that it was Canada Day. He was admitted as a B.C. solicitor in 1964 and was called to the B.C. bar in 1965. Over the years he worked at Clarkson Gordon, Chartered Accountants, in Vancouver; as the head of the legal department in British Columbia at the Industrial Development Bank (now Business Development Bank of Canada); at Buell Ellis Sargent and Russell; and at Wilson Danderfer Banno & Mitchell. Ron noted that when he joined the venerable Buell Ellis, it was at the invitation of Tommy Ellis, then treasurer of the Law Society.

Ron’s areas of practice were land law, securities law, business/corporate law and insurance law.

For a time he was responsible for all land transactions (including purchase, sale and commercial mortgages) in British Columbia for Imperial Oil Limited (Esso), Manufacturers Life Insurance Company, Fidelity Life Insurance Company, Seaboard Life Insurance Company, Friends Provident Life Office, and many privately held Canadian corporations.

Ron innovated in British Columbia with concepts such as determinable fee simple interests, successive leases and 99-year leases (for common law condominium conversions), reverse mortgage programs, and informal subdivisions of many B.C. islands.

He was an unconventional thinker and enjoyed the challenges of his profession.

At times he served as a tutor at the Law Society of British Columbia. He also advised the province on, and drafted, various sections of land law statutes and other legislation.

Ron wrote various articles for the Advocate over the years, including “Agreements for Sale” (1975) 33 Advocate 146, “Agreements for Sale – Part II” (1983) 41 Advocate 145, “Agreements for Sale – Part III” (1985) 44 Advocate 183, and “Sale of Strata Land” (2016) 74 Advocate 663. He also contributed to the Advocate through various letters to the editor, including extensive commentary on determinable fee simple interests as a means of making charitable donations of land for public use (in reaction to West Van-

couver (District) v. British Columbia (Attorney General), 2020 BCSC 966), at (2020) 76 Advocate 928.

Although Ron retired “a few” years ago, he kept his passion for the law. Until the end he was still reading cases published on the CanLII website.

With his first wife, Ron had two children: Maria and Karin.

Ron and his long-time partner, Frédérique Nielsen, lived for many years in West Vancouver until moving in June 2024 to Halfmoon Bay, on the Sunshine Coast. They also enjoyed spending time on Savary Island, which Ron had discovered and fallen in love with around half a century ago. He built an off-grid cottage there that was a retreat for both of them, including over Christmas/New Year periods.

Although Ron was serious when he was working, he also had a sense of fun and could be quite funny. Ron was a passionate gardener, growing everything (not only flowers, but also trees and other plants) from seeds that came from all over the world. The garden at the home that Ron and Frédérique long shared in West Vancouver was a tribute to that. Ron loved growing tomatoes, in particular, with more than 100 plants each year of all sorts of different varieties, and he enthusiastically shared the bounty with friends.

Unfortunately Ron experienced a period of poor health toward the end of his life. He passed away in February 2025.

Ludmila

B. Herbst, K.C., with the assistance of Frédérique Nielsen

Wally P. Lightbody

This article honours my memory of Walley Lightbody’s character, as well as his broader achievements as a dedicated member of the Vancouver Bar Association, and his well-earned reputation as seasoned counsel before the courts of British Columbia and Canada. Walley co-founded the firm Ray, Wolfe, Connell, Lightbody and Reynolds, and we were legal partners for five decades. Walley served as president of the CBABC in 1979/80, was appointed as Queen’s Counsel in 1985 and was awarded the Georges A. Goyer Memorial Award in 2010.

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As a litigator, Walley often represented plaintiffs with claims for personal injury and was regularly retained by insurance and surety corporations who required seasoned counsel. He also represented clients involved in highprofile matters, including the judicial inquiry headed by B.C. Chief Justice John Farris into the death of Mary Steinhauser during the prisoners’ riot at the B.C. penitentiary in 1975. Walley additionally provided ongoing defamation counsel to beloved radio talk-show host Rafe Mair.

Born in the new Vancouver neighbourhood of Dunbar in “The Dirty Thirties”, Walley attended Lord Byng High School where he took lessons on the saxophone and developed his lifelong passion for jazz. At age 16 he established “The Walley Lightbody Orchestra”, which played for many Lord Byng dances, and he also wrote a column for The Byng newspaper called Blue Notes

A spirited entrepreneur, Walley’s earlier business was a high school carwashing service. The cars would be classy: Buicks, Oldsmobiles and Lincolns—owned by the better-off Dunbar businessmen. The format was to pick up the car, take it for a wash and polish at one of the boys’ homes, get the job done efficiently leaving an hour to then take some Dunbar female friends for a ride before returning the car by the stated hour.

After finishing high school Walley enrolled at UBC, studying English and Latin. At this time Walley became passionate in the career and artistry of be-bop saxophonist Charlie Parker, also known as “Bird”. Such was Walley’s knowledge of Bird’s compositions and recordings that he was often invited to be a guest on the CBC radio show Hot Air hosted by the veteran CBC presenter Bob Smith. “Walley Lightbody” became a well-known name in the UBC jazz scene: he joined the jazz society at UBC, JazzSoc, and later became its president. Walley and other members of JazzSoc formed “The Campus Coolsters” and performed regularly at UBC.

I ran into Walley outside UBC’s Brock Hall and inquired if there might be room in the Coolsters. Walley agreed and this began our more than 70-year friendship and collaboration with personalities such as Alexander “Sandy” Ross, Coolster drummer and later editor of Maclean’s magazine; Jim Carney, jazz trumpeter and twin brother to Senator Pat Carney (also an avid jazz fan); and drummer Jules Ray, later to be one of our law firm partners. While at UBC Walley gained experience booking local bands such as the Fraser McPherson Quintet and the Chris Gage Trio as well as booking musicians from Seattle such as singer Herb Jeffries.

Walley, Jules Ray and I played numerous dances and UBC fraternity and sorority parties during the ’50s without a clue to our future law career together. Graduation from UBC followed, and Walley was awarded a scholarship in radio and television production at Northwestern University in Illinois but chose to stay at UBC to study law.

In 1955 while at law school, Walley joined like-minded jazz musicians and rented an abandoned farmhouse in Richmond as a venue to play into the late hours. This venture was so well received that its core members then formed “The Cellar”—a back-door basement venue near Vancouver’s Broadway and Main. Walley incorporated the Cellar Musicians & Artists Society members-only club, and became its unofficial counsel. The history of the Cellar and its influence in bringing avant-garde jazz to Vancouver is well documented in the excellent book by Marian Jago, Live at the Cellar (UBC Press). Notwithstanding his many extra-curricular activities, Walley did actually graduate from UBC with a law degree in 1959.

Walley accepted an offer to article in Victoria, secured a room in the Strathcona Hotel, and joined his old Cellar acquaintance Ken Hole who was opening a jazz club called “The Scene” in an abandoned fish processing plant at the docks on Wharf Street. Walley arranged the required permits, and helped Ken run the club for its first year.

It was at this time that Walley proposed to Marietta Anderson, with whom he would have four children: Cathy, Michael, Sarah and Peter, who would be raised on the West Vancouver waterfront. It was during the West Vancouver years (1966–1995) that Walley became a passionate tennis player— indeed, the game of tennis assumed a prominent role in future years.

Completing his articling, Walley joined his former classmates Jules Ray, Isy Wolfe and Gavin Connell in the establishment of Ray, Wolfe, Connell and Lightbody—then later, “& Reynolds” (that’s me).

Soon the firm had its own band, which performed at house parties and law-related events. Originally named the Electric Injunction, it was later renamed the Well-Hung Jury.

Walley’s interest in film and television production launched his production of hobbyist slapstick super 8 movies—one notable flick involved members of the Vancouver Bar Association, several of whom were members of “SMALL”, an informal association of lawyers who self-identified as being short in stature, and thus decreed themselves “Société Midget / Alliance Little Lawyers”. Walley cast members of SMALL to sit side-by-side, huddled on the Vancouver Courthouse front steps, fully gowned—the main action being the passing back and forth of a weed cigarette. As it goes, none of this humour dated well—Vancouver lore states these films were shown at a packed B.C. bar membership event around 15 years ago, whereafter Marietta recounted with a smile, “You could hear a pin drop.”

When the new Arthur Erickson courthouse was being constructed in Vancouver, Walley secured the input of his long-term close friend, lawyer Tony Pantages (also a member of SMALL), whose family had been in Vancouver’s

restaurant business for decades. Walley and Tony along with other members of the B.C. bar established The Law Courts Inn, a more-or-less regular establishment, but (lo and behold) in convenient proximity for law professionals.

From 2011 until 2018, while semi-retired from practising law, Walley served on the B.C. International Commercial Arbitration Centre, later the Vancouver International Arbitration Centre, where he was considered to be progressive and a great supporter of arbitration.

In 1995, Walley and Marietta moved into Marietta’s lakefront childhood home in Kelowna and built a tennis court on the property, nicknamed by the players The Church of Walley because Walley would play Ray Charles’ “Oh, What a Beautiful Mornin’” every Sunday morning, at full volume, much to Marietta’s embarrassment, but to everyone else’s delight (or so he claimed). The two quickly became active on many fronts of the community, including tennis, Kelowna Heritage (“FRAHCAS”) and the Hospital Foundation, among others. Walley was the main organizer of an annual tennis tournament that lasted 17 years and raised nearly one million dollars for the Kelowna Hospital Foundation.

On that note, Walley over the years enjoyed organizing large social events and establishing traditions, most memorably the Seal Rocks Yacht Club, a tongue-in-cheek “yacht club” (no one had a yacht) that in its heyday featured a jazz band and continues to bring friends together to enjoy a day on the ocean. Also, there was the annual family Ping Pong Tournament in Kelowna that included evening theatrical antics and an afternoon wine-tasting contest. There was also the annual Canada Day party started by Marietta’s parents that continued for years at the home in Kelowna. Further, Walley was instrumental in the creation of the satirical Guile Debate (Bob Guile was also a member of SMALL) at UBC which morphed into the Beguiled Debate as well as the similarly inspired Roger Watts Debate at UBC Okanagan (“UBCO”).

Walley was an active supporter of the federal Liberal Party, and was outspoken on a range of political and environmental issues. He donated generously to several causes, particularly cancer research, and he established a foundation at UBCO that provides an annual scholarship for a student intending to study law.

Until recently, Walley’s many cherished friends would pop by daily to visit in the Kelowna kitchen area that has come to be known affectionately as “the black hole”, the gathering point for many cozy meals and hands of kitchen bridge, with Plato the cat somewhere nearby. Several groups of tennis players have enjoyed Walley’s court regularly—most notably, TNT, Thursday Night Tennis, which has run for nearly 30 years.

From October until his passing, Walley was back and forth between North Vancouver long-term care and the Lions Gate Hospital and was visited daily by family. These visits were special for all. In spite of some cognitive decline, Walley’s sense of humour remained sharp as ever and he kept visitors entertained with life memories and anecdotes, a favourite of which took place when Walley, in his early 20s, spent a summer in the Interior working for the Geological Survey of Canada. Long story short, the cook burned down the camp and Walley was sent to get supplies on a horse called “Little Dick”, and when he rode back into the camp, he was mistaken for a notorious local known as “Blackwater Willy”. Family and friends could not get enough of the Blackwater Willy story, which came only in bits and pieces, laughter and sparkle, rarely forming a complete narrative—this was its poetic beauty.

Jack Reynolds, in consultation with the Lightbody family

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NEW JUDGES

By R.C. Tino Bella

The Honourable Justice Eric Vance Gottardi

Eric Vance Gottardi was appointed as a justice of the Supreme Court of British Columbia on August 29, 2024. He brings to the appointment a profound understanding of criminal law, a perceptive intellect and a robust sense of fairness. He would closely scrutinize any abuse of power or misuse of authority, and would be open-minded to anyone who might be considered an underdog. This may come from his past allegiances to struggling sports teams, but also from his own history of overcoming life challenges and helping others in times of crisis.

Eric hails from an immigrant family. His grandfather brought the Gottardi family to Canada from northern Italy after the war. They settled in Toronto, living in a small attic in Leaside.

Eric was born in Ottawa, the first of the Gottardi family to be born in Canada. When he was young, he and his family, which now included his younger brothers Darren and Paul, left Ontario for Western Canada. Eric’s father, Ferrucio, a civil engineer, found employment in the Lower Mainland and the family settled in North Delta when Eric was five years old.

Eric’s mother Marilyn, a schoolteacher, passed away in 1995, when Eric was just 20 years old. This tragedy shaped Eric’s resilience and steadfast determination to honour his mother’s memory. She would be proud of Eric and his accomplishments.

Eric grew up in North Delta and attended Holy Cross High School in Surrey, where he played football and worked after-school shifts stocking shelves at Save-On-Foods. He was recruited to play football at the varsity level at SFU but was drawn to UBC for a degree in Greek and classical studies. Years later, he would organize an annual fall football game for criminal

lawyers. He appointed himself quarterback, which helped keep him above the fray and off the injury list. It was noted that his passes had a distinctive wobble but were catchable, although not without risk for his receivers. In football parlance, these are known as “hospital passes”.

Eric spent much of his youth in competitive swimming. He swam for the North Delta Sunfish, where he was coached by Carole Gair, the legendary B.C. Sports Hall of Famer. Eric’s passion for swimming has been a constant presence throughout his life. He coached varsity swimming at SFU and was head coach of the Richmond Kigoos in the late 1990s. Although he no longer embodies a typical swimmer’s physique, he has a formidable “locomotive inertia” in the water and a cleverly disguised athleticism.

After a few years of coaching, and inspired by the courtroom drama of Lt. Kaffee’s cross-examination of Col. Jessep in A Few Good Men, Eric decided it was time to apply to law school. He was admitted to Queen’s University in Kingston, Ontario. While studying law, Eric was the assistant coach for the varsity swim team. It was in this capacity that he met his future partner, Lesley.

At Queen’s, Eric learned from some of the leading criminal law academics and practitioners of the time, including Don Stuart, Ronald Delisle, Allan Manson and (now Justice) Gary Trotter. His relationships with these instructors solidified his passion for criminal law.

During his time at law school, Eric lived in a ramshackle house with a group of other students with whom he formed lifelong friendships. Living with this ragtag group carried an inherent risk of being pranked. When Eric applied for a clerkship position, one of his roommates took a message one day from Justice Michael Moldaver, then of the Ontario Court of Appeal. The mischievous roommate told Eric that Justice Moldaver had called to advise that, with regret, they could not offer Eric a position. Crestfallen, Eric returned the call to Justice Moldaver, who was puzzled as to why Eric sounded so dejected about being offered a clerkship position at the Ontario Court of Appeal.

Once this was sorted out, Eric and Lesley soon moved to Toronto, where Lesley studied education at York University and Eric clerked at the court for Justices David Doherty and Karen Weiler. This was an inspirational experience for Eric, working alongside some of the great jurists of that court.

After his clerkship, Eric and Lesley returned to British Columbia where Eric completed his articles at the criminal law firm, Peck and Company. Eric joined Peck and Company at a vital moment in the firm’s history, assisting the team of lawyers tasked with defending one of the accused in the Air India trial. This was one of the most complex and longest-running

trials in the history of the province, and was an extraordinary training ground for a young criminal lawyer.

Eric soon developed a rare and specialized criminal law practice. He took on increasingly complex and challenging cases, focusing on extradition and appeals. Many of his cases featured cross-border legal issues. His practice often took him to other jurisdictions, such as Toronto, Philadelphia and New York. He also acted for the Crown in a number of special prosecutions in Ontario and British Columbia.

As a lawyer, he was perhaps most comfortable in arguing criminal appeals. He had the rare ability to examine a legal issue from multiple angles with a full appreciation of competing interests. He was at his best taking questions from the bench, often with a fully formed and articulate response appearing as if it had been written out in advance. He was capable of impromptu advocacy, without the need to resort to notes.

Eric made a number of appearances in landmark cases at the Supreme Court of Canada. On several occasions, he appeared on behalf of the CBA as an intervener, particularly in cases dealing with the constitutionality of mandatory minimum sentences, including Lloyd, Nur and Hilbach

Eric was lead counsel in Jordan, the ground-breaking decision on the right to be tried within a reasonable time under s. 11(b) of the Charter. This decision, which established presumptive time limits on the time to trial, had a monumental impact on the administration of justice across Canada. The genesis of what has become known as the “Jordan ceiling” can be found in a brief exchange between Eric and Justice Moldaver during the hearing of the appeal. Although none of the parties had proposed a fixed ceiling in their factums, Justice Moldaver posed the following question during Eric’s oral presentation: “What if we set (X) days as the dropdead date … absent exceptional circumstances … Would that be a better model?” After a poignant deliberative pause (lasting approximately one second), Eric replied, “Yes!”, demonstrating the great insight that you should seize the moment when a formidable jurist lobs you a softball.

Later in his career, he was an integral member of the legal team representing Wanzhou Meng, the Huawei executive whose extradition from Canada was sought by the United States. Eric contributed to a number of court motions before the matter was finally resolved with Ms. Meng returning home to China.

In addition to his work in court, Eric’s contributions to legal education and law reform are significant. He held several positions with CBA, serving as chair of the Vancouver Criminal Law Subsection and the National Criminal Law Section. He was chair of the Uniform Law Conference of Canada.

He spearheaded the creation of the annual National CBA Conference on Criminal Law. His contributions to law reform were recognized when he was awarded the CBABC President’s Medal in 2013.

Eric appeared before parliamentary committees on numerous occasions, testifying as an expert witness on behalf of the CBA at hearings studying proposed legislation.

For many years, Eric has served on the faculty of the Federation of Law Societies National Criminal Law Program, attended by hundreds of practitioners and judges every summer.

Peck and Company was home to Eric for his entire career at the bar. Along with his partners, he helped build Peck and Company into one of the largest and most vibrant criminal law firms in the country.

Eric was essential to the social life of the firm, often hosting young lawyers at conferences or post-case debriefings on a local patio. He frequently reminded his colleagues that “the firm is a family”. To Eric, these words were intended to give a sense of comfort and support to his colleagues and remind them of the importance of their part in a close-knit working environment.

He was supportive and generous as a mentor. To many young lawyers, he was a confidante, promoter and champion for their careers. He set high standards for himself and others, but once you gained his confidence he was more than happy to entrust you with key aspects of the case. With Jedi-like calm, he would be there without fail if someone needed support. Without question, he is someone who can be counted on in a time of need.

Eric has many qualities that he can draw on in his work as a judge. One of his strongest traits is an uncharacteristic ability to connect with people on a personal level. He is empathetic, a strong listener and quickly gains the respect and trust of others.

In all of his endeavours, Eric has been supported by his partner of 20 years, Lesley, a childhood educator for the Richmond School Board. Eric and Lesley married in 2005 and have two young sons, Dashiell and Griffin. Both of the boys are promising swimmers as well, competing for their dad’s former team, the Richmond Kigoos. Eric and Lesley often spend early mornings and weekends volunteering at swim meets or otherwise supporting the swim club. Dash and Griffin have incredible energy, a boundless enthusiasm for life and bright futures. Eric and Lesley have much to be proud of.

Beneath a sober demeanour, there is a quirky sense of humour and a passionate fan-like enthusiasm for many things. His interests in sports and the arts are eclectic. At various times, his teams have included the Canucks,

Celtics, Bills, Vikings and/or the Seahawks. He has an unabashed inclination to travel far and wide for key playoff games or concerts.

From early days, Eric has been a strong supporter of live music, attending numerous live shows at venues like the Commodore and the Town Pump. He was an ardent fan of homegrown Canadian bands such as 54-40, the Watchmen and the Tragically Hip. Any band would be richer for having Eric in the crowd, as he fully and completely commits to the moment, singing along to deep tracks without restraint.

He is an avid collector of memorabilia, including action figures, jerseys, helmets and comics. He was euphoric when he had the chance to meet and take a photo with Marvel Comics founder Stan Lee, who signed his Avengers #1 comic. He is also a collector of rare books by Dashiell Hammett, J.R.R. Tolkien and other literary heroes. He is a devout fan of the Star Wars universe and may well be the only member of the judiciary with a Jedi Order tattoo.

He has a deep connection to the music and lyrics of Gord Downie in particular. At his welcoming ceremony, Eric invoked the lyrics of the late poet and troubadour, promising that he would aspire to fulfil his judicial duties with “will and determination, and grace, too”. Eric’s appointment will enrich the administration of justice in British Columbia. As Gord Downie wrote, “it’s been a long time coming … and it’s well worth the wait”.

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The

Honourable Judge James Henry

A Path to the Bench Built on Dedication, Dignity and a Dash of Curling Swagger

In every courthouse, there are a few lawyers who stand out not just for their legal acumen, but also for the quiet integrity and steady humanity they bring to their practice. James Henry was one such figure— until recently, when he traded his signature grey suits as a courtroom advocate for the robes of a judge.

Appointed to the bench after nearly three decades of service to the law and to his community, James brings to the judiciary a remarkable legacy as both a zealous defence advocate and a Crown prosecutor. His path to the bench is not only one of exceptional legal practice, but also one deeply rooted in community, humility and compassion.

From Northern Beginnings to Legal Leadership

James’ legal journey began far from the urban halls of justice, in Prince George, where he grew up and graduated from Kelly Road Secondary School. His early years in the North imbued him with a strong work ethic, a grounded perspective and an innate respect for people from all walks of life—values that would shape his legal career in profound ways.

He spent his first year of post-secondary education at Northern Lights College in Fort Nelson, where his intellectual curiosity and growing passion for public service began to take shape. He later transferred to UVic, where he completed his undergraduate degree in geography before earning his law degree, also at UVic. That combination of social science and legal theory made him particularly attuned to the intersection of place, community and justice.

Defence Counsel and the Art of Advocacy

Called to the bar in 1996, James began his career—somewhat reluctantly—in family law, thanks to a persuasive nudge from now Judge Craig Sicotte. It was not long before he found his true calling in criminal defence. At the firm of Sicotte & Henry, he formed a powerhouse legal duo with Sicotte, earning a reputation as a razor-sharp advocate and an unwavering voice for his clients.

James’ courtroom advocacy was both methodical and deeply human. His approach combined technical expertise with emotional intelligence, striking a rare balance between tenacity and empathy. His cross-examinations were textbook examples of tactical control—always civil, never hostile. One police officer famously left the witness stand remarking it was the “easiest cross” of his career—unaware that James had meticulously extracted every point he needed.

He was known for showing up early, staying late and doing the invisible, unglamorous work that makes great lawyers indispensable. He did not just fight for his clients in court—he helped them navigate systems that often felt impenetrable. One colleague remembers overhearing him patiently explain to a client how to navigate the bus schedule and route to reach his probation office, staying on the phone until he was sure the man understood, going well beyond the call of duty. It was not uncommon for James to spend many additional hours on files that, as he was contracted through legal aid, he could not bill for; he did the work nonetheless to give his client the best possible service. That is James in a nutshell: selfless and a man of servitude who will undoubtedly serve the bench well.

He was equally committed to those around him. His assistants and articling students often remark on his respect for their time and contributions. He devised efficient legal aid billing systems that not only saved time but

also helped ensure accuracy and compliance—a small but meaningful way of lightening the load for those around him and that served as a template for many other defence lawyers who followed his lead.

A Natural Mentor and Trusted Colleague

One of James’ lasting legacies is his mentorship of junior lawyers. Whether reviewing a draft submission, offering strategy over a hallway coffee or simply lending an ear after a tough day in court, he approached mentorship without ego or condescension. In Surrey, where he practised almost exclusively for the entirety of his legal career, he became something of an institution—respected not just for his knowledge and skill, but for the generous spirit with which he shared it.

When he eventually left the defence bar, it felt like the end of an era, especially with the departure of now Judge Sicotte that quickly followed. But in truth, it marked the beginning of a new chapter of invaluable service.

From the Defence to the Crown: Fairness Above All

In the second phase of his legal career, James crossed the courtroom to become a Crown prosecutor. If anyone worried that his commitment to fairness might waver with the shift in role, they were quickly reassured. As a prosecutor, he brought the same empathy and thoroughness to his work, particularly in sensitive and emotionally difficult cases with the most vulnerable victims.

James had a unique ability to speak with victims and witnesses in a way that preserved their dignity while calming their nerves. Whether working with young children, marginalized adults or those who had endured trauma, he was a steady and compassionate presence—never performative, always sincere.

He continued his trademark long hours working as trial Crown, flexing his legal skills at both the Provincial Court and Supreme Court, while still making time to offer tips or advice to the less experienced Crown with questions, all while he was binding his own casebooks.

In 2022, James was appointed Administrative Crown Counsel in Surrey, taking on the formidable task of managing a team of over 50 prosecutors. Unsurprisingly, he brought order and clarity to the chaos. His colour-coded spreadsheets, user-friendly policy manuals and intuitive scheduling templates became the new standard—and not just because they were efficient. They reflected a leadership style grounded in service, not authority.

That same spirit carried over to his irreplaceable role on the office’s social committee, where he turned mandatory fun into genuine joy. He orchestrated the infamous Reindeer Games, strung Advocate-issue pages

into holiday garlands [we are now looking at our Advocate collections in a new light – Asst. Ed.], and proved once and for all that organization and festive chaos could coexist. His laughter was as much a fixture of the office as his spreadsheets.

Métis Identity and Cultural Advocacy

James’ commitment to justice goes far beyond courtroom walls. As a proud Métis man through his grandfather’s lineage, he has long been dedicated to fostering understanding between the legal system and Indigenous communities.

He serves on the board of directors for the Nova Métis Heritage Association, where he is currently leading a cultural initiative titled “Métis Stories Forever”—a project focused on preserving and sharing Métis oral histories for future generations.

His heritage also informed his work with the Indigenous Prosecution Service Resource Group, which he joined in 2020. There, he brought both his personal identity and professional insight to discussions on systemic change, reconciliation and Indigenous representation within the justice system. The Man Behind the Robes

While James’ professional accomplishments are impressive, those who know him best also appreciate the man behind the titles.

In 2006, he earned a black belt in Taekwondo, receiving impromptu classes from the one and only Ron Coumont. And it is a passion he has been able to share with his son, who found success practising and later teaching Taekwondo.

A talented singer and actor, James appeared in Royal City Musical Productions’ The Music Man and Peter Pan: The Musical, as well as numerous Christmas productions including a spin-off from Newsies. In a moment of national pride (and logistical mystery), he donned rollerblades to skate around a faux mountain during the 2010 Winter Olympics opening ceremony, and later circled Michael Bublé in a Canadian hockey uniform at the closing ceremony—a claim few judges can make with a straight face.

James was also a beloved member of the Justice League, Surrey’s curling league. Though his team never bested the Del Rossi Possi during regular season play, they pulled off an upset at least once in the bonspiel—a victory that remains a topic of spirited debate to this day.

But at the end of any day, you will find James enjoying a glass of unoaked wine with his beloved wife and three children before inevitably returning to the work he so deeply values.

A Welcome Addition to the Bench

James’ appointment brings to the judiciary not only a brilliant legal mind,

but a profound sense of justice rooted in humility, empathy and service. His courtroom was always a place of respect—for the law, for the process and, above all, for the people. Those who practised beside him may miss his presence at the bar, but they take comfort in knowing his steady hand and kind spirit now help guide the bench and he is exactly where he belongs.

In an era where civility, diligence and grace often feel like endangered virtues, James remains a reminder of what the legal profession can be at its best: smart, strong, principled—and deeply, undeniably, human.

The Honourable Justice Mark Glyn Underhill

There is a pattern to a judicial biography. First, it outlines an exceptional upbringing that entrenches the qualities of fairness, hard work and curiosity (sometimes a sprinkling of wit and good humour). Next, it describes an academic path that grounds the emergence of intellectual curiosity and discipline (in some cases a winding path, to be sure). It then weaves the intersection of these qualities to describe an amazing and honest advocate who has genuinely changed Canada for the better: a loss to clients and colleagues, indeed to the profession, but a gift to the collective. And yes, this is all true of Justice Mark Glyn Underhill. But it is not where we should start.

To properly understand Mark, just look at his two children, John and Henry. The boys are lucky to have talented and caring parents, as well as an incredibly supportive family web. They are also Mark’s true life’s work. Mark has won the North Shore Father of the Year award so many times that others can only mutter and question the officiating. These thoughtful young men embody Mark’s better qualities. They are smart, funny, compassionate friends, and take a lot of joy from life. Most importantly, although they might not yet have a true sense of their ultimate path, they are good citizens who care about the world.

As to the early years, Mark has remarked that when he arrived at Queen’s University for his first year of undergrad, he had a very different conception of gender inequality than the rest of the world. This is undoubtedly due to the strong women who loved and surrounded Mark (and put him in his place).

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Mark’s mother, Jane, could only be described as a force of nature. From the moment she arrived in King City, Ontario, where Mark was born and raised, she was a crusader and champion of endless causes, spending many years leading various environmental groups, and then serving multiple terms as township councillor. She remains a testament to what one dedicated and passionate person can accomplish in this world.

Equally accomplished were Mark’s two older sisters, setting an impossibly high bar for him growing up, as he was constantly reminded by several teachers at their high school. They would go on to successful careers in medicine and engineering.

Mark was rounded out by the men in his life. His father, Gene, a star academic and athlete in his university years, was an old-school eccentric and contrarian. He had a remarkably curious and open mind, and never stopped learning, inquiring and challenging. Mark’s stepfather, Jim, has also been a formative role model for Mark and his sisters. Jim was a successful businessman, but always managed to put family and friends first. A steady and kind man who skied into his 90s, he continues to enjoy evenings of sparkling conversation and fine wine as he pushes past 95.

Following his time at Queen’s, Mark found his way out west, giving in to the siren call of the Douglas fir and Sitka spruce. His time at UVic Law led to cherished friendships and an unshakeable belief that UVic is the finest law school in the country. His contributions to the school ranged from participating in the senate, to chairing the environmental law conference and skit night, and to later establishing an active alumni association and teaching at the Environmental Law Centre.

Alongside a small group of talented associates, Mark started practising at Arvay Finlay in the so-called “early years” of that well-known litigation boutique. There he had an unparalleled opportunity to be immersed in an extraordinary range of challenging files, and to learn from the late Joe Arvay, O.C., O.B.C., Q.C., as well as the late John Finlay, Q.C., and Murray Rankin, K.C. It is impossible to overstate the impact that those individuals had on Mark as a lawyer and person. He learned about the importance of being both rigorous and bold in his approach to litigation, of listening carefully to and getting to know his clients and of working collaboratively with as many smart minds as possible. During that time, Mark and Cathie Boies Parker, K.C., also formed an everlasting bond of friendship and partnership in the law—working closely together on countless difficult and important cases through many years of running their own firm and later re-forming as “Arvay Finlay 2.0”.

When he moved to Vancouver in the early 2000s, Mark was fortunate to not only continue to be a part of Arvay Finlay, but also to share space and

work with another remarkable group of lawyers, including the late Tom Berger, O.C., O.B.C., Q.C., the late Jim Aldridge, K.C., and Margaret Rosling. He has described that period of time, properly so, as like being in Camelot.

As much of the senior litigation bar can attest, Mark is very comfortable on a patio. He likes colour in his shirts and umbrellas in his drinks. It is fitting that his first reported decision involved the game of cornhole. If you played cornhole against Mark, you would lose. Mark is, simply, a master of all leisure sports. One of many examples is his three-decade unbeaten streak at croquet—any time, any place, any surface. Mark also excels at more serious sports. On the ping pong table he is feared for his King City and Beaverton Junk, and he is an unexpectedly talented athlete with a wide set of interests (skiing, tennis and golf to be sure, but also famous for his wrist shot).

In terms of advice to counsel destined to appear before Mark, the authors of this piece would recommend the following: be like Mark. As a litigator Mark was structured, precise and forceful. He strongly believed in the benefits of preparation, including condensed materials that only contain the items essential for victory. Make a book, then make it smaller. He also eventually learned (it took a little while) that it is important to take your court appearances, but not yourself, too seriously.

Mark was wise counsel to, but more importantly learned a lot from, his clients. Mark was honoured to work for First Nations throughout his career, but most particularly in the last decade of his practice, representing them in a number of important governance and Aboriginal rights and title matters. In addition, his extensive litigation practice included work for many tribunals and officers of the legislature necessary for the proper functioning of British Columbia’s government and administrative justice system.

The breadth of Mark’s practice was staggering. A simple CanLII search will attach his name to hundreds of reported decisions across almost every area of public and private law. To paraphrase what has been said about the great Roy Kent, in the law “he’s here, he’s there, he’s everywhere.” As a result, it is quite possible that counsel will find Mark’s name attached to a decision about or adjacent to the matter that they are arguing. To be clear, however, one should not assume that he has a clear recollection of that case or area of the law. You might even need to put his own cases in your carefully constructed condensed book.

Despite his busy practice, he was generous with his pro bono time, both by serving on boards and by acting as counsel in cases ranging from environmental justice to ensuring that funding for legal representation was provided to marginalized individuals. Mark was also a frequent contributor to numerous legal education programs throughout his career at the bar.

During the application process, a debate emerged among Mark’s friends and mentors as to whether he could make a greater contribution to Canada by continuing on as an advocate at the height of his power, or transitioning into the excellent judge that we know he will be.

One of the early proponents of keeping Mark as an advocate was Stuart Rush, K.C. A long-time leader of the Aboriginal bar, Stuart had preceded Mark as counsel for the Sinixt, a First Nation now largely resident in Washington state that was infamously declared extinct in 1956 but found to be an Aboriginal people of Canada by the Supreme Court of Canada in the landmark decision in R. v. Desautel. Stuart had a ringside seat to Mark’s superb trial and appellate advocacy on that file. However, as the application process progressed, and perhaps given Mark’s mastery of the patio lunch, even Stuart eventually came around to recognizing what the rest of us knew. This is an outstanding appointment on all levels. Canada wins again.

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The Honourable Judge Mylene de Guzman

The recent appointment of Mylene de Guzman to the Provincial Court of British Columbia is most deserved, welcome and overdue.

I first met Mylene in 1995, when she came into my office looking for an articling position. At the time, she was about 25 and bubbling with excitement, energy and confidence. Though impressed with both her speaking style and exuberance, I was struck most by her friendly manner and humility. She was also genuinely excited about the law and her career, and she wanted to start work yesterday. Those same attributes and attitudes have never paled since that day, almost exactly 30 years ago.

Thereafter, Mylene and I worked together for the next decade, during which she became a good friend to me and my extended family. When Mylene becomes your friend, it is forever.

As a youngster, Mylene and her family fled the Philippines when martial law raged. With little support and no career path forward, it was a most challenging time for the family of four. Pete (her father) and Lily (her mother) both worked long, hard hours to provide for the family, even when that meant having multiple employment positions. They wanted to ensure that

their children would have a chance at liberty and success. The precedent of that work ethic was not wasted on either Mylene or her brother, Joel.

Initially, Mylene studied political science at UBC, studied law at Windsor and then returned to this province for articles. Since then, she has worked tirelessly in family law, mediation and related matters.

In the early years, she managed a significant collection of legal aid work. Most of that was family law, but there were some Ministry/apprehension cases as well, and a mixed bag of criminal and civil matters. All of these she approached with great enthusiasm. Every client was treated with respect.

In the late ’90s, almost all legal aid work was financially untenable, but required the skills and abilities of a senior barrister, as well as the patience of a saint. Mylene did it all and made a modest living at it, mostly by working very long hours. She did that to ensure that she would never embarrass herself in court by being unprepared—a worry that simply never materialized.

Mylene did this work well, absent complaint. Then, when her long days were over, she went home and helped her family, or a charity, or a friend.

Over the years, as her practice transitioned and matured, she developed a devoted collection of referral sources and folks who were thrilled to recommend her to their friends and family. And although she was often terribly busy, she always had time for her clients and was patient and compassionate with all. She was never too busy to talk to anyone in need.

She built friendships in and out of the profession, and she knew everyone.

This kindness and commitment cannot overshadow the fact that Mylene could be a taskmaster and would sternly and boldly particularize her expectations for the kind of behaviour she demanded of her clients. She had particular expectations, and she was firm in making those expectations known to those who chose her for representation. In that, Mylene was both fearless and professional.

Mylene had some great clients, and some who were not. Many faced serious drug and alcohol challenges, and some had mental health challenges. Many were marginalized or otherwise disadvantaged, but Mylene gave them her best. In her even-handed dispensing of care to all, she demonstrated the best traditions of this profession. It was great to work with her and thrilling to see her on her own in later years.

Throughout her career, Mylene has worked diligently to advance the needs and interests of multiple groups, organizations and charities, including several branches of the provincial and national bar associations. She was, at my last count, heartily involved in about 12 professional associations, and remains committed to issues affecting disadvantaged and under-

represented minority groups. When she is not teaching a CLE, she is learning at a CLE, or taking additional mediation training or working on a committee. Her calendar cannot be anything but a dizzying kaleidoscope of activity. One wonders where she finds the time to keep track of all news stories (which she does), chat with pals and shop for furniture bargains and upholstery products.

During the decade that Mylene and I worked together, it was not uncommon for her parents to show up at the office at random times, bearing home-cooked goodies for everyone on staff. They would set all this fantastic fare out in the boardroom, and then quietly disappear down the hall, never waiting for praise or recognition.

All of the “volunteer” work that Mylene performs—and truly, much of it is work—is unpaid, and much of it thankless, yet Mylene continued to seek out and accept new challenges year after year. She did so while running a practice.

But wait, there’s more! In addition to being a committed litigator, mediator, office organizer, manager, friend to many, public speaker, volunteer, shopper and educator, Mylene also maintains a busy social calendar and cares for her family, community and church. On top of all that, she has voluntarily accepted the full-time care of her young niece, who has special needs, and Mylene has plans to formalize that guardianship arrangement shortly.

Lest readers remain unconvinced of Mylene’s past commitment to the profession and humankind generally, I will add that Mylene has also, simultaneously, been expert care aid to various family members. Mylene’s loving mother, Lily, faced serious health challenges for many years, and would not have managed absent her guardian angel and best friend. Rather than leaving these challenges to others, Mylene made whatever arrangements were required to ensure that Lily was comfortable at home day and night.

But in the midst of these challenging times, Mylene always had time for friends and revelry.

The last time Mylene came to our house for dinner was a couple of years ago. She was then working full time, volunteering in several capacities, and caring for her niece and her mother (at home), as well as her aunt. She told us all about it, but not in a complaining way. Nothing was “too much” for Mylene, and so she was pleased to be useful to her family.

After dinner, Mylene asked about our travels, and my wife and I happily shared the highlights of our recent European vacation. We then asked Mylene if she had enjoyed any recent travel (knowing she was always ready for an adventure). She excitedly announced that yes, she had recently been on a big vacation to Europe. Thinking that this announcement would be fol-

lowed by action-filled stories of dance venues in Paris and shopping in London, I was somewhat surprised when it turned out that, instead, she had escorted her mom and extended family to the Vatican, in yet another demonstration of selflessness.

I think Mylene always wanted to be a judge. She is certainly suited for the position, with a great legal mind, an abundance of patience and the capacity to sort wheat from chaff. When the announcement of her appointment came, she was absolutely thrilled. Sadly, Lily passed away three days after Mylene received the happy news of her appointment. Mercifully, Mylene had the opportunity to describe her good fortune to her mother, which most surely would have brought great peace to her devoted best friend.

Congratulations, Mylene. You deserve this. Your coming service to the province will be most appreciated and respected. Welcome!

“Contemplation In A Chaotic World” by Sue Daniel, Oil on Canvas, 48'' x 60'' Visit the website: suedaniel.com

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NEW BOOKS AND MEDIA

By R.C. Tino Bella*

Canisia Lubrin, Code Noir (Toronto: Alfred A. Knopf Canada, 2024) paperback, pp. 360, $25.00

Reviewed by Anne Giardini, K.C.

As lawyers we are in the business of righting wrongs by means of lawsuits and other forms of legal claims and challenges, but there are many possible responses to injustice. Members of a broader, contentiously changing society, we have been participants in or witnesses to the creation or protection of rights by means of movements and actions led by groups, individuals, legislators and the courts. We read or hear in the news of apologies and reparations; protests, strikes, marches and acts of civil disobedience; donations to a cause fervently believed in; charity, hopes and prayers.

Art is another possible response. Consider for example Pablo Picasso’s famous work Guernica. Although Picasso’s vast painting was a response to a specific event, the sustained bombing of the town of Guernica by German warplanes on April 26, 1937, the painting has come to be viewed as a synecdoche for the devastations of all war.

Canadian poet Canisia Lubrin’s recently published book Code Noir is the prose response of an award-winning Canadian poet to the infamous code of 59 articles passed by Louis XIV in 1685. The Code Noir established the conditions of slavery in France’s colonial empire. Employing the blandest of legalistic terms, it decreed what enslaved people were permitted and barred from doing and, with finely-tuned malice, regulated their lives and treatment from birth, through work, marriage, family formation, gatherings, illness up to death—and even beyond death since it compelled them to adhere to the Catholic faith. One wonders what heaven might have been envisioned for these people deemed human enough to possess souls, but not

human enough for freedom. The Code Noir set bounds on human interactions without compassion for the subjugated. Rather, what protections they were afforded were those incidental to preventing and resolving potential disputes among their oppressors.

Lubrin has called this a collection of “fictions”, but each chapter is rooted in history, the present day and the imagined future. There are 59 of these fictions, ranging in length from a paragraph to several pages, each preceded by an excerpt from the Code Noir, extracts that artist Torkwase Dyson, in companion drawings, has framed, scored over, stressed and obliterated, a way of isolating and commenting on the words of the Code companionate to Lubrin’s writing.

Lubrin’s writing is extraordinary, wholly original, suffused with life, love and anger, at times ecstatic, at others sounding almost resigned to a world in which safe harbour can never be assured.

Some of the places where Lubrin sets her scenes are in Canada—an early scene unfolds on King Street in Toronto and one speaker remembers studying engineering at Dalhousie—others in the Caribbean, and many in unspecified locations. The form of the writings is broad and lively. There are letters and reports to loved ones. There are scripts and songs and monologues and poems. Scenes are set in the distant past and the unknowable future.

Without there being any sense of what will come next in length, form or content, we are never left in any doubt about the context. This is a book that grew from outrage. As one character observes: “Since my rage was cold, I could tuck it away. I could unfurl it. I could make it into other things, throw it at the wrong things, make it an absence.” Another character says: “All I have to give you is fury, anguish, regret, voices, voices, voices.”

Lubrin gives life all of these voices in her extraordinary book, as well as an education in some of the ways the law can veer as far as possible from goodness. Code Noir is a timely reminder that merciless examination can both expose and undermine evil.

LETTER TO THE EDITOR

Dear Editor,

Re: Jeremy Webber, “On The Front Cover: Val Napoleon” (2025) 83 Advocate 497; Tyler Holte, “The Local Venue Rule” (2025) 83 Advocate 507

Here are a few thoughts regarding the July 2025 issue, which as usual was a page turner.

With regard to the article about Val Napoleon, readers might be interested in the late Neil J. Sterritt, O.B.C.’s book Mapping My Way Home. It is a history of the Gitxsan, and a lot more. Neil was one of the main proponents of the Delgamuukw case.

In regards to Tyler Holte’s “The Local Venue Rule”, at one time the Provincial Court of B.C. sat in Pemberton every second Thursday. (Pterodactyls may then have nested on Siyám Smánit, the Stawamus Chief, and there may even have been a few hippies in the

By R.C. Tino Bella*

area, although a rough and tumble industrial town was not their preferred habitat.) The sitting judge in Squamish then, and so also often in Pemberton, was Judge Ian Walker. One morning in Pemberton a case involving a young man was called, but he did not appear. It transpired that he was from the Lilwat7úl (Lil’wat) Nation. He chose to live in one of the tiny “reserves” along the Lillooet River, south of Lillooet Lake and north of Douglas. He did not have a vehicle, had been on a visit to family and friends in Mount Currie, and was picked up for some minor offence. He was given a notice to appear, and of course was quite unable to do so. The police were not willing to go and fetch him, and if memory serves Crown counsel did not ask for a bench warrant—which probably would not have been issued.

Then there was the time I had a client from Mount Currie who was

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

charged with potting a deer out of season. The defence was necessity, that is to say he said he needed the meat for his family, and he seemed credible. By chance, Judge Alfred Scow (later C.M. and O.B.C.)—the first Aboriginal lawyer in British Columbia—was sitting that day. He was not convinced.

Judge Walker usually convened breakfast for himself, court staff, lawyers and the other usual suspects at the Pemberton Hotel on court days, and he, his wife and court staff had a nice reception at the courthouse in Squamish every December. Different times, but a visible measure of local justice was available.

In relation to which, it appears that there are now 81 locations in B.C. with a courthouse. About half seem to be regularly staffed, with a scheduled judge or judges. The rest are on a “circuit” basis (see

<provincialcourt.bc.ca/court-locations>). There has been considerable population growth and changes in transportation and communication over the last century. Still, given that for many a local provincial court may be their only access to justice in British Columbia, I wonder how many courthouses (full and part time) there were in say 1975 and 1925. Notwithstanding the provincial sales tax on lawyer’s fees, and efforts by Access Pro Bono and others, has the public’s access to justice improved? Particularly small and rural communities?

Felicitously yours, Anders I. Ourom, K.C.1 Squamish, B.C.

ENDNOTE

1. A.I. Ourom is not the A.I. everyone seems to be talking and writing about elsewhere.

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“Justice”, sculpted by Walter S. Allward, Supreme Court of Canada Collection. Copyright held by the office of the Registrar of the Supreme Court of Canada.

LEGAL ANECDOTES AND MISCELLANEA

By Ludmila B. Herbst, K.C.*

JUSTICE AT THE SUPREME COURT OF CANADA

Those of us fortunate enough to have walked around the outside perimeter of the Supreme Court of Canada building, whether as counsel, clerk, judge or tourist, have passed the haunting statue of Justice on the right side of its front entrance.

Unlike many representations of the Greco-Roman goddess (Themis or Iustitia), this is not an insipid or simpering Justice. No one would make this Justice into a trinket. This is not a Justice who dispenses comforting words or whose presence is comfortable. This is a stern and implacable Justice, without a blindfold, and with a sword. This Justice will not let a wrongdoer escape one of her courtrooms unscathed unless those who allowed this to occur are held to account or unless larger purposes are being served.

Remarkably this statue was not, however, originally destined for the Supreme Court of Canada or, indeed, for any courthouse.

Justice and her companion, Truth (on the other side of the Supreme Court of Canada’s front entrance), were sculpted by Walter Allward. Born in Toronto in 1874, he left school at 14 and apprenticed as a draughtsman at an architectural firm. At age 19, he began work at the Don Valley Pressed Brick Works, sculpting bas-relief and three-dimensional sculptures to decorate buildings. Although not formally trained as a sculptor, Allward had pored over library books and magazines featuring ancient Greek sculpture and the artwork of Michelangelo, studied replicas of famous statues at a Toronto museum, and admired the works of French sculptor Auguste Rodin.

Starting in 1894, Allward began to receive commissions for various monuments. At least three came to feature various renditions of Justice. The

* Ludmila B. Herbst, K.C., is the assistant editor of the Advocate

first was as part of a monument commissioned in 1903 to commemorate former Ontario premier Sir Oliver Mowat, who had been a lawyer as well as a politician. On the pedestal under the statue were bas-relief representations of Justice (with a sword and not blindfolded) and Jurisprudence.

In 1912, Allward won a competition to create a monument commemorating the late Edward VII, known as the “Peacemaker” for having sought to improve relations between Britain and France, as well as with other European countries. It was for this commission that the statue of Justice now found at the Supreme Court of Canada was created.

At the time of the competition in 1912, the Edward VII monument was intended to be placed at the southeast corner of the east block on Parliament Hill in Ottawa. This is close to Wellington Street, on the side of the Parliamentary precinct closest to and above the locks on the Rideau Canal, and across the canal from the Chateau Laurier.

Allward was sensitive to making the Edward VII monument both simple and substantial in order not to compete with, but to stand out against, “the varied surfaces and broken outlines of the buildings and surroundings…. The contour of the monument is such that it does not compete with the various towers and turrets, at the same time it is sufficiently high and broad to be a dignified and impressive mass placed above the level of the small details of the bridge, traffic, etc.”1

On the steps at the base of the monument was to be, as Allward described, “the figure of Justice, erect, strong, reliant, ready to help and support knowledge (which is truth) in her task of civilizing and enlightening the world”. The inscription on the monument was to read, “Through Truth and Justice he [Edward VII] strove that war might cease and Peace descend o’er all the Earth.”2

Work on the Edward VII monument was interrupted—ironically, or at least sadly, given the late king’s “Peacemaker” moniker—by World War I. However, by some time in 1922, Allward had nonetheless completed the sculptures of Justice and Truth that were to be at the base of the Edward VII monument. Each statue was cast in bronze and was about 10 feet3 tall.

In 1924, the statues were shipped from Allward’s studio in Toronto to Ottawa, and placed in storage next to the site of an old hotel on the LeBreton Flats.4 Soon after that, the originally contemplated site for the Edward VII monument came to be occupied by a statue of Sir Wilfrid Laurier, unveiled in 1927 by the then-Prince of Wales (who became Edward VIII before his abdication).

Apart from the statues of Truth and Justice, the rest of the Edward VII monument was never completed, in part because the price of materials for

the monument (which was to have been 54 feet long, 30 deep and 19 high) had eclipsed that contemplated in the original $35,000 commission,5 and in part because Allward himself left for Europe in 1922. In 1921, Allward had been commissioned to create the incredible Vimy Ridge Memorial 6 in France (as he said, “a protest in a quiet way against the futility of war”7 ), on which he would work until its completion in 1936. The Vimy Ridge Memorial would itself have a connection to Justice, which was among the allegorical figures (others included Peace and Truth) at the top of its twin pylons.

The Vimy Ridge Memorial was opened to the public in 1936, with a ceremony before a crowd of 100,000, including 6,000 Canadian veterans and their families. After the memorial’s completion, Allward returned to Canada.

In 1937, he received an honorary doctor of laws degree from Queen’s University, followed in 1939 by an honorary doctor of laws degree from the University of Toronto.

Around the time of Allward’s return to Canada, plans were afoot under Prime Minister William Lyon Mackenzie King for the development and beautification of Ottawa. In 1937, sites were chosen for the National War Memorial (almost directly across Wellington Street from the originally contemplated site of the Edward VII monument) and, further to the west along Wellington, the Supreme Court of Canada. The federal Cabinet also met more broadly with advisors on the topic of monuments to be placed around Ottawa. Allward attended at least one of these meetings, likely at least in large part to discuss the Edward VII monument or its components. (The prime minister evidently was dissatisfied with the fact works of this nature were lying in storage when partly sculpted and paid for.8 )

Vimy Ridge Memorial (1936) – City of Vancouver Archives, AM54-S4-: Mon P152.

There is no indication of any discussion at this time of possible placement of the statues of Truth and Justice at the eventual Supreme Court of Canada building. Indeed, one author has noted that the building’s architect, Ernest Cormier, might not have been pleased by the statues’ eventual placement there given “the rest of the court’s aesthetic, and his notorious need to be involved in every area of designing the building”.9

Again, a world war intervened before any plans that had been made with respect to Truth, Justice or the Edward VII monument more generally could be carried out. Allward himself died in 1955.

In 1957, a newspaper report suggested that the Edward VII monument had in fact been completed but, large as it would have been, that it somehow had disappeared.10 Shortly thereafter, the federal Department of Public Works clarified that the monument had never been completed, although the statues of Truth and Justice had been. As to those two statues, the thenMinister of Public Works, Robert H. Winters, said, “We’ve known where they’ve been all the time…they’ve never been lost. But people are at a loss to know what to do with them.” Winters indicated that interest had been shown in the statues by the National Gallery or that perhaps they could be placed at the site of a new national library building, but that no decision had yet been made.11

The statues’ placement in Ottawa itself was apparently not a foregone conclusion. Also in 1957, both the British Columbia Centennial Committee (planning celebrations for 1958) and Elmore Philpott, the Liberal Member of Parliament for Vancouver South, urged the federal government to allow the statues to be moved to this province, so that the committee could “make use of these figures in front of the public building which is to be erected in Vancouver for next year’s celebration”. Questioned about this by Philpott in the House of Commons, Winters indicated this suggestion would be considered, though cautioned: “These two figures were designed as part of a statue, and before using them alone as free-standing figures the location would have to be considered very carefully. That would restrict their use somewhat. But there has been quite a revival of interest in these two particular statues and we would be glad to consider the request of my hon. friend along with the rest.”12

In 1958, Philpott (after an intervening federal election, no longer MP) wrote a letter to the new Minister of Public Works, published on the editorial page of the Vancouver Sun, claiming—perhaps tongue-in-cheek—that Winters:

…promised me on the floor of Parliament that he would turn over those figures to Vancouver, to be set up here to help beautify our city. My suggestion as the then-MP for Vancouver South was that this be done in con-

nection with our Centennial celebration. The only stipulation Mr. Winters made was that these magnificent 12-foot high bronze figures must be placed on some suitable site or sites.

Perhaps they would be most fitting in front of our court house, though their great size might rule that out on the ground of lack of space. Perhaps they would look best on the grounds of our city hall. But as they were designed by one of the world’s greatest sculptors, and were intended as a part of the proposed memorial to King Edward, why not place them at some suitable points on Vancouver’s own King Edward boulevard?13

Perhaps these suggestions—especially the idea of placing the statues in the middle of a roadway, however majestic that roadway might be—caused some alarm in Ottawa. In any event, no more seems to have been heard of the statues for another decade.

In 1969 or so, the Canadian Press expressed concern that while there seemed to be consensus that the statues were somewhere in Ottawa, in storage, no one seemed to know exactly where in Ottawa. A retired chief architect of the Ministry of Public Works recalled that the ministry had handed the statues over about ten years earlier, in crates, to the National Capital Commission (which acknowledged it might well have the statues, somewhere). He thought the statues might be even at Kingsmere, the summer home of Mackenzie King, who had collected old stone carvings; however, this turned out not to be the case.14 The then-federal Minister of Public Works, Arthur Laing (of the bridge to Vancouver International Airport), tasked members of his staff with tracking the statues down.15

East Block, where the Edward VII monument was originally to be located, with the Chateau Laurier behind it.

By early October 1969, the statues had been found, at a time when “Mr. Allward’s work [was] undergoing a revival of interest in art circles.” 16 Eleanor Milne, who was the chief sculptor on Parliament Hill (also described as in charge of the stone-carving decoration of the Centre Block on Parliament Hill), described the statues as somewhat reminiscent of Rodin;17 given Allward’s admiration for that sculptor, he likely would have been pleased by that characterization. It may also have been Milne who suggested the statues be installed before the Supreme Court of Canada building, perhaps to an inter-departmental committee that had been formed to decide what to do with them.18 Milne came to the rescue, as well, when Public Works employees discovered that the hilt of Justice’s sword was missing: Milne created a replacement, in plaster, and coloured it to match the bronze.19

Milne’s apparent suggestion to place Truth and Justice before the Supreme Court of Canada was adopted, with the installation scheduled to occur in August 1970. That process, however, was beset by various mishaps, chiefly involving the six-foot-high granite pedestals on which the statues were to be placed. The 21 tons of granite (two 10.5-ton slabs) came from a quarry near Sherbrooke, Quebec, and the truck carrying the load overheated and broke down en route to Ottawa. The truck had to be towed, arriving many hours late. Then a lifting pin “bent like a pipe cleaner” when a crane attempted to lift the slabs from the truck, so steel ropes had to be

Ottawa from the Ottawa River, with the East Block on the far left and the Supreme Court of Canada toward the right.

used instead. It was then found that the holes in the granite pedestals into which the anchor bolts of the statues were to be secured had been placed incorrectly; they had to be re-drilled.20 Milne noted of the hectic events of Thursday, August 13, that “Friday the 13th sure came on Thursday this month”.

Ultimately the two bronze statues, each two tons, were placed on their pedestals. The statue of Truth was installed first, and as one journalist commented, “appeared as a serious young woman with slightly-knit brows but a look of compassion. Justice, on the other hand, seemed to have a brooding air.”21 Another article noted: “Truth is a bare-headed young woman in flowing robes, carrying the book of knowledge, and Justice is shown as a hooded young Galahad bearing a sword.”22

The media were quite active in covering the above events, perhaps in part because of the opportunity for a good headline (including “Found in Ottawa: Truth and Justice”, “Truth and Justice in Court”, “Truth and Justice in need of a home”, and “Truth and Justice Prevail”).23

Only in the spring of 1974 were the granite pedestals under the statues inscribed with the statues’ names: Veritas and Iustitia. Noted one reporter, “[t]he names were inscribed in Latin, thus avoiding any complication with Canada’s two official languages.”24

This was just in time, however, for the Supreme Court of Canada’s 100th anniversary in 1975, when 25 million 8-cent stamps bearing the figure of Justice were released.25

If you have never seen the statue of Justice in person, take the opportunity to do so if ever in Ottawa. This is one of those statues that holds your gaze and reminds you of all we are supposed to do when we take our oaths as barrister and solicitor or judge.

ENDNOTES

1. “King Edward Memorial: Mr. Alleward’s [sic] Description of Proposed Work”, The Citizen (Ottawa) (29 April 1913) 13 [“King Edward Memorial”].

2. Ibid

3.This piece uses imperial terminology (despite the author’s preference for metric!) to reflect the originally reported measurements.

4.“King Edward Memorial”, supra note 1.

5.Margaret Bruce, “Statues Wait Thirteen Years: Truth and Justice Rest in Ottawa Until Completion of King Edward VII Group”, Victoria Daily Times (5 February 1937) 3; “Truth and Justice in Cold Storage”, The Globe and Mail (6 February 1937) 14.

6.The Vimy Ridge monument was inspired by a dream that Allward had while the horrors of World War I were still unfolding. As Allward described it in 1922, and as quoted in Lane Borstad, “Walter Allward:

Sculptor and Architect of the Vimy Ridge Memorial” (2008) 33 JSSAC 23:

When things were at their blackest in France, during the war, I went to sleep one night after dwelling on all the muck and misery over there. My spirit was like a thing tormented. So I dreamed. In my dream I was on a great battlefield. I saw our men going by in thousands, and being mowed down by the sickles of death, regiment after regiment, division after division. Suffering beyond endurance at the sight. I turned my eyes and found myself looking down an avenue of poplars. Suddenly through this avenue, I saw thousands marching to the aid of our armies. They were the dead. They rose in masses, filed silently by and entered the fight, to aid the living. So vivid was this

impression, that when I awoke it stayed with me for months.

7.Philip Dombowsky, “Walter Allward’s Despair about War Expressed in Sketches” (11 November 2021), online: <www.gallery.ca/magazine/in-the-spotlight/walter-allwards-despair-about-war-expressedin-sketches>. Allward was deeply moved by war. In early 1917, Allward wrote to the Canadian government offering to assist with creating prostheses for soldiers whose faces had been disfigured (“I am a sculptor and would be able to model the missing parts…If I can be of any service to my country in this direction, I will gladly do what I can”): as quoted in Philip Dombowsky, Walter S. Allward: Life & Work (Art Canada Institute).

8.“Chose Ottawa Site for War Memorial”, The Gazette (Montreal) (14 August 1937) 5.

9.David DesBaillets, “Representing Canadian Justice: Legal Iconography and Symbolism at the Supreme Court of Canada” (2018) 14:1 Int’l J L Context 132 at 139–40.

10.“Statue 54 Feet Long, 19 Feet Tall Lost in Wilds of Ottawa 33 Years!”, Ottawa Citizen (6 February 1957) 3.

11.“Works Dept. Ends Mystery of Statue”, Saskatoon Star-Phoenix (12 February 1957) 2; “Truth, Justice Not Lost: 2 Bronze Figures Old, Unused”, The Windsor Daily Star (13 February 1957) 26.

12.“B.C. May Get Old Statues By Allward”, Ottawa Citizen (13 February 1957) 14; House of Commons Debates (22nd Parliament, 5th Sess, Vol 2) at 1193.

13.Elmore Philpott, “Get the Statues”, Vancouver Sun (18 February 1958) 4.

14.One journalist noted that “[i]n fact, there are a good many people around Ottawa who were in politics

with Mr. King—a man who evoked staunch loyalties or bitter opposition—and some of them would question the appropriateness of having Truth and Justice at Kingsmere”: James Nelson, “What Is the Fate of Truth and Justice?”, Ottawa Citizen (20 September 1969) 27.

15.James Nelson, “Truth and Justice Under Lock and Key”, Victoria Daily Times (30 August 1969) 28.

16. “Found in Ottawa: Truth and Justice”, The Globe and Mail (4 October 1969) 1.

17. “Truth and Justice in Court”, Montreal Gazette (14 August 1970).

18. “Edward VII’s Truth, Justice Finally Set Up in Ottawa”, Hamilton Spectator (14 August 1970) 11 [“Edward VII’s Truth, Justice”].

19.Canadian Press, “Truth and Justice in need of a home”, The Province (4 October 1969) 7; Canadian Press, “What do you do with them?”, Ottawa Citizen (4 October 1969) 15.

20. “Edward VII’s Truth, Justice”, supra note 18; “There’s No Justice in This”, Calgary Herald (14 August 1970) 56.

21.“Truth and Justice Prevail”, The Windsor Star (15 August 1970) 12.

22.“Truth and Justice Wait for a Place in Ottawa”, The Globe and Mail (14 August 1970) 3.

23. Supra notes 16–19, 21–22.

24. James Nelson, “Truth, Justice at last”, Ottawa Citizen (19 June 1974) 80.

25. “The Stamp of Justice”, Edmonton Journal (24 July 1975) 6; George Hansen, “Stamps”, Star-Phoenix (8 August 1975) 59.

FROM OUR BACK PAGES

By R.C. Tino Bel

THE MANAGEMENT OF CIVIL LITIGATION*

By Mr. Justice Duncan W. Shaw†

PROBLEMS

The duration of civil trials has dramatically expanded over the last few decades. Lawsuits have become more complicated with more parties and more issues. The use of experts has become a growth industry. Lengthy examinations for discovery are more common. Photocopying is producing vast volumes of documents, many of which are irrelevant. The Charter of Rights and Freedoms has increased the length of criminal trials, cutting into the time judges have to hear civil cases. The cost of litigation has increased so much that litigants are representing themselves in larger numbers. Trials are getting “bumped” due to lack of available judges. Trials that last longer than their time estimates take judges away from scheduled cases. Budget restraints prevent the building of new courtrooms and the appointment of new judges. The system is pushed to the limit.

These problems came to a head about five years ago. Of all the concerns, the most immediate was the “bumping” of trials that had fixed dates to go ahead. Because of the lack of available judges to hear cases, litigants and their counsel were being turned away at the courthouse and told to return later, usually six months to a year hence. On average, this was happening to

*Reprinted from (1999) 57 Advocate 557.

† Then of the Supreme Court of British Columbia.

about 25 percent of the cases ready for trial. It is not difficult to imagine the great cost to litigants and counsel in wasted time, effort and emotional stress.

In British Columbia, trial dates may be applied for at the close of pleadings. For many years, the court operated under a policy of assigning trial dates within a year of request. This “one-year rule” was useful as it provided set deadline dates by which cases had to be settled or tried. However, as the bumping problem increased, the effectiveness of the one-year rule was undermined.

As a stop-gap measure, the one-year rule was changed to 18 months for shorter cases and two years for longer matters. This was not a welcome step as it simply delayed when a case could get a trial date, but it was necessary in order to gain some time to develop and implement measures aimed at shortening trials and reducing the proportion of cases proceeding to trial.

Civil chambers also developed their own kind of bumping. Counsel or parties often had to wait all day in chambers without getting heard and come back another day, with no guarantee of then getting heard. Measures had to be devised to bring the chambers practice under better control.

Family cases were another source of difficulty. With the advent of the provisions in the Family Relations Act for the sharing of family assets, cases grew in number and length. Long, bitter disputes with innumerable chambers applications became commonplace. Remedial steps were needed.

The cost of litigation became unaffordable for a growing number of litigants. This was manifested by greater numbers of chambers matters and trials being handled by the litigants themselves, unrepresented by lawyers. Simpler and faster methods of getting cases heard and decided were needed.

Long trials lasting several weeks or months used to be unusual. With litigation becoming more complex, long cases became commonplace. The court had to take control over these cases.

Even shorter cases were becoming longer. Measures were needed to reduce their length and to make settlement a more attractive alternative.

REACTION

The court has reacted to these problems with various initiatives. Information was obtained on methods used in other jurisdictions in Canada, the United States, England and Australia. A detailed study of various projects under way in Ontario was made and presented to the court. During the tenure of the then Chief Justice William Esson, the court’s Advisory Committee and individual judges prepared reports on various areas of potential

reform, including chambers practice, management by appointed trial judge, the discovery process, pre-trial management, specialization, circuiting, chambers’ costs, settlement conferences, early intervention in family cases, alternative dispute resolution, an individual calendar system, a fast-track system and case inventory.

A committee was formed to develop the concept of the early appointment of the trial judge in long cases, with the assigned judge having the responsibility of providing pretrial management and ensuring that trials are properly organized. Another committee took on the task of examining civil chambers in Vancouver to ascertain the sources of its problems and to devise solutions. Another committee tackled the ADR/settlement aspect. A further committee studied ways to address the problem of trials that last longer than their time estimates. Initiatives were taken for early court intervention in family cases in Vancouver and New Westminster. A video-conferencing committee developed ways to reduce costs to litigants through the use of video cameras and monitors.

The new Chief Justice, Bryan Williams, appointed the Litigation Management Committee, consisting of representatives of the court, the bar, the provincial and federal Attorneys General and the public to consider and develop changes to the civil litigation system and to evaluate them. From this committee came proposals for a fasttrack system and for the management of standard-track cases.

Many measures have been developed. Here is a brief description of the principal ones.

MEASURES

Summary Trials – Rule 18A

Rule 18A was brought into the Rules of Court in 1983. Rule 18A pre-dates the recent initiatives, but it should be mentioned as it has become an important tool in the repertoire of counsel — a means to get actions heard in only a fraction of the court time that would otherwise be taken for a full viva voce trial. Rule 18A trials are of a summary nature, generally based upon affidavit evidence, supplemented by cross examinations on affidavits and examinations for discovery. After a rather slow start when Rule 18A was novel, its use has grown enormously to the point where it accounts now for a large proportion of cases heard by the court.

Management by Appointed Trial Judge

In February 1997, all civil actions estimated to run 11 days or longer became subject to management by a judge assigned to be the trial judge. The judge

gives management directions, hears the interlocutory applications, assigns the trial date and requires counsel to prepare a trial plan setting out the issues, the witnesses and time estimates. The judge ascertains whether a settlement is possible and will arrange for a settlement conference before another judge if that appears warranted. The judge may also suggest mediation by an accredited mediator.

The 11-day-plus management program grew out of a two-year test project run by the court in Vancouver, under which the management of a portion of cases 10 days and over was assigned to judges who were to be the trial judges. A comparison was made with cases that were not so managed. The results indicated increased settlements, fewer chambers applications and shorter trials for the managed cases than for the cases that were not so managed.

The 11-day-plus program has become a captive of its own success. The estimates of trial lengths of 11 days or longer have more than doubled since the inception of the program, placing too heavy a burden on the court. Thus, as of Decem ber 1, 1998, new cases coming on the program are restricted to those estimated to run 20 days or longer.

The results of the program are being closely monitored. Statistical results should be available in late 1999.

Chambers – Rule 65

During the past two years, chambers practice has significantly changed in Vancouver. This has been accomplished by Rule 65 of the Rules of Court. Rule 65 requires counsel to exchange their positions on chambers disputes to see if they can be resolved out of court. It also requires that the relevant materials be organized in binders for the chambers judge. A recent report discloses that the number of chambers applications has been substantially reduced, motions have been better organized, and bumping has become far less common.

Family Cases

Early intervention projects are under way in Vancouver and New Westminster. In both projects, as soon as a family action is contested, the parties and their counsel must appear before a judge or a master. The purpose is to get interim orders in place and to settle as many issues as possible. The court and the parties benefit by saving chambers time, trial time and expense.

The two projects differ in a fundamental respect. In New Westminster each case is individually managed by one judge or master, whereas in Vancouver the judge who conducts the early intervention hearing is not charged with the subsequent management of the case. Both projects are being monitored. The results so far on each project are very encouraging.

Settlement Capacity – Rule 35

For many years, the court has been providing settlement conferences and mini-trials under Rule 35. By these means the court has provided non-binding opinions to assist the parties to settle.

The court has now enhanced its settlement capacity by providing special training sessions for the judges who are interested in this process (a large majority of the court). Also, the Chief Justice, by way of a practice direction, has provided a procedure whereby the parties to an action may, by consent, arrange for a settlement conference or a mini-trial and can choose a particular judge, if available, from a rota of judges.

In addition, the provincial Attorney General's Ministry and the bar have created an organization called the British Columbia Mediator Roster Society to accredit mediators to whom judges may refer cases, by consent of the parties, where it appears that mediation will assist in settlement.

Motor Vehicle Accident Mediation

The provincial Attorney General’s Ministry, through its Dispute Resolution Office, has developed a compulsory mediation process for personal injury cases whereby one party may serve the other party or parties with a notice to mediate. This is provided for in the Notice to Mediate (Motor Vehicle) Regulation (Reg. 127/98) enacted in April 1998 under the Insurance (Motor Vehicle) Act. This process is frequently used and so far has produced about a 70-percent settlement rate at mediations plus a further 10 percent of cases settled after service of the notice to mediate and before commencement of the mediation.

Fast Track – Rule 66

Rule 66, which creates the fast-track system, came into force on September 1, 1998. It is applicable to Vancouver/New Westminster and Kamloops at this time. The rule will be in force for two years to see whether fast track works. If it is found to be worthwhile, it will likely expand to the rest of the province in due course.

Fast track is open to all civil cases (except family cases) which can be tried in two days or less. It provides for early trial dates (within four months of the application for a trial date) and a simplified procedure, notably a twohour limit on examinations for discovery, no interrogatories, no juries and pre-set costs.

It is hoped that litigants and counsel will be attracted to the project by the prospect of early and certain trial dates and lower costs. It is also hoped that counsel will reap the benefit of fast track by organizing trials that now take longer than two days and fitting them within the two-day requirement.

Fast track has the prospect of filling a niche that Rule 18A cannot — the speedy resolution of cases involving significant credibility issues. The project is being closely monitored to measure the results.

Family cases have been left out of the fast-track project so that the effectiveness of the early intervention projects can be measured unencumbered by the fast-track project. This is not to say that family cases cannot be added to fast track in due course if that appears warranted.

Standard Track

While there is no official designation called standard track, it is a useful catchall label for actions from one to 19 days’ duration that are not on fast track.

The Chief Justice’s practice direction of November 20, 1998, sets out how these actions are to be managed. It provides that court management of these cases will be restricted to actions that are in need of management by a judge; otherwise management will be left in the hands of counsel.

The key is the selection process. There are two ways to initiate selection. One is by a party or counsel applying to the Chief Justice by way of a letter to the trial coordinator giving cogent reasons why that action should be subject to court management. The other method is by a judge or a master or trial division spotting a case in need of management and making a recommendation to the Chief Justice. In each case, it will be the Chief Justice who will appoint the case-management judge.

The case-management judge will meet with counsel and give such directions as are necessary to see that the case is properly managed. The judge will have discretion to hear chambers applications, but will not be obliged to do so. The judge will not preside at the trial unless designated to do so by the Chief Justice.

Certain standard track cases will be subject to pre-trial conferences before a judge or master within 30 days of the trial date. This requirement will apply to all cases with trial estimates of from four to 19 days, priority trials (e.g., previously bumped cases) and jury trials of any length. The judge or master will ascertain whether the case is ready to proceed and whether it will likely run beyond its time estimate. The judge or master may, if necessary, take the case off the trial list, or have it set over to a date when trial division has a judge available whose schedule can accommodate the revised estimate. In appropriate cases the judge or master may order the parties to produce a trial plan such as is required for cases on the 20day-plus management program.

Video-conferencing

The court has developed a video-conferencing system. One courtroom in

Vancouver and one in Prince George are fully equipped with cameras and monitors. Penticton, Terrace, Fort St. John and Campbell River also have cameras and monitors. For civil cases, the system is used for case-management conferences, chambers applications and the testimony of witnesses. It is also used for criminal matters. The court expects to increase the number of sites over the next few years.

CONCLUSION

It is the cumulative effect of all the measures that is aimed at improving the civil litigation system. Some measures will prove to be more effective than others. Some will need adjustments to operate to best effect. Constant monitoring and timely revisions will be required.

It is heartening to note that during 1998 bumping of trials and chambers applications was substantially reduced. The trend has continued into 1999, with very few matters now being bumped. How much of this is due to the measures set out above, or to the present economic downturn in British Columbia, or to other factors, cannot be said with certainty. I believe that many of the measures have helped and others will help even more as they take hold. Time will tell.

BENCH AND BAR

According to the Freshwater Fisheries Society of BC, the fall season offers many fishing opportunities, including to catch white sturgeon (with a catch-and-release fishery in the Fraser River) and various types of salmon. To tempt readers with something that perhaps only those who engage in the sport will understand, “[i]n the Kootenays, October is a peak month to target bull trout with streamers, which imitate their kokanee prey”, or there may be a spot of “late season dry-fly fishing”. For those of us who are not as proficient with line or lure but nonetheless want to read about some big fish, or need something to occupy their time waiting for the fish to bite, read on.

Julia Crimeni moved from Watson Goepel to join McMillan. Amy K. Laverdure has landed at Koffman Kalef, having moved from Borden Ladner Gervais. Shea H. Coulson has hung up his own shingle under the moniker Coulson Litigation & Advisory, leaving DLA Piper to do so. Kendra E. Hewson joins Narwal Litigation after articles with Lindsay Kenney. Asha N.L.Y. Young moves to UniUni as in-house counsel from Lawson Lundell. Joseph (Joe) D. Antifaev moves from Harper Grey to Carfra Lawton. Kevin H.Y. Chen moves from Cleveland Doan to join RDM Lawyers. Rebecca Dales lands at Harper Grey after a stint at Segev LLP. Jeremy Gellis joins Harper Grey as associate counsel, leaving Cozen O’Connor to do so. Also joining Harper Grey is Jimmy Peterson, who moves from Paine Edmonds. Jessica H. Chung moves to become in-house counsel at A&W Food Services of Canada Inc., leaving Lawson Lundell to do so. Mihai Tomos is now with MLT Aikens in Vancouver, moving from Cassels Brock & Blackwell.

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.

Wikipedia advises: “The word fish is inherited from Proto-Germanic, and is related to German Fisch, the Latin piscis and Old Irish iasc, though the exact root is unknown; some authorities reconstruct a Proto-Indo-European root *peysk- …” See more about “Pisces” on later pages.

Colleen Spier, K.C. , was appointed a judge of the Provincial Court in Nanaimo. Her Honour Judge Susan Sangha was designated as an Associate Chief Judge of the Provincial Court of British Columbia for a term commencing August 1, 2025 and ending December 31, 2027. After 6 ½ years as the Regional Administrative Judge for the Vancouver Region of the Provincial Court, Judge John R. Milne has elected Senior Judge status commencing July 1, 2025. Judge Patricia Janzen retired from the Provincial Court on July 1, 2025.

“The time that should be devoted to a case varies directly with the difficulty of the case. It takes more time and effort to stalk beasts in the backwoods than it does to shoot fish in a barrel”: Glassroth v. Moore, 347 F.3d 916 (11th Cir. 2003).

Gavin R. Hoekstra was appointed a member of the Skilled Trades BC Appeal Board for a term ending July 10, 2026.

“I find it a reasonable inference that a fishing vessel would ordinarily have fishing bait on board”: R v. Grover, 2024 NSPC 47.

Daniel A. Byma was recently named executive legal officer for Chief Justice Wagner in Ottawa for a two-year term.

CORRECTION. We regret having asserted that Allan McDonnell, K.C., a contributor to our last issue, was ever the managing partner of Russell & DuMoulin. This piece of information was a fiction that is entirely our own and that Mr. McDonnell had no part in. We apologize to Mr. McDonnell and to other partners of Russell & DuMoulin who may have been surprised to read (again) such nonsense in these pages. Never rely on yourself as a source for information is the lesson there. — Ed.

E. Blair Lockhart was reappointed as a commissioner to the British Columbia Utilities Commission.

“[A]s one thoughtful fisherman has observed, ‘God never did make a more calm, quiet, innocent recreation than angling.’ Izaak Walton, The Compleat Angler 100 (Everyman’s Library 1906)”: Iodence v. City of Alliance, 270 Neb. 59 (2005), per Stephan J., dissenting.

Sonia Kaur Virk was appointed to the selection committee for the Medal of Good Citizenship for a term ending June 30, 2027.

October 2025 was proclaimed provincially as Latin American Heritage Month.

“Counsel said that one cannot embark on a fishing expedition. I find little help in that statement. I take it that a Fishing expedition describes an examination for discovery that has gone beyond reasonable limits into areas that are not and cannot be relevant. In those waters one may not fish. In other waters one may. That one fishes is not decisive, it is where the fishing takes place that matters”: Cominco Ltd. v. Westinghouse Canada Limited, 1979 CanLII 489 (B.C.C.A.).

Noted the legendary Peter Butler, K.C., after having been among the counsel rebuked by a court for the length of examinations for discovery, “Since then, my fishing expeditions have been less obvious”: “What Remedies Are Available When Counsel Cannot Agree”, Civil Litigation Conference (CLEBC, July 1996).

Daniel C.A. Oleksiuk was appointed to the Passenger Transportation Board.

“Jack-up barges, unique in their functional ability to convert from seagoing watercraft to ‘land-based’ work platforms at the throw of a lever, may require unique precautions to ensure their safety in either of these modes. The captain of such a vessel must be aware of the operational limitations of his vessel because a jack-up barge in its raised mode, analogous to a fish out of water, can be victim of the damaging effects of the winds and waves”: Graham v. Milky Way Barges, Inc., 590 F. Supp. 721 (E.D. La. 1984).

Annabelle P. Donovan was appointed a member of the board of the British Columbia Institute of Technology for a term ending July 31, 2026.

In Martha’s Vineyard Scuba Headquarters, Inc. v. the Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir. 1987), a case involving salvage rights, the U.S. Court of Appeals for the First Circuit got into the nautical spirit, to an almost frantic extent. It variously noted that “the waters are murky in this area of the law”, “[t]he distinctively salty flavor of this litigation leaves little room to doubt that its provenance is nautical”, “[t]he next yaw is as easily managed”, and “this appeal, albeit interlocutory, is not

a fish out of water” but “[t]he reefs which mar the petitioner’s course are many and jagged”. The court continued: “[t]here is no need to churn the waters further. We have jurisdiction to determine the interlocutory appeal in this maritime matter….Yet upon close examination, the assignments of error sink of their own weight. The district judge handled the motion for confirmation of title in a manner that was shipshape and Bristol fashion.”

Maureen E. Baird, K.C., was appointed commissioner under the Private Training Act for a term of five years.

Presumably mixing tides and currents, “[i]n order to reach the defendant’s position the court would be forced to swim upstream against the tide of evidence too strong to resist”: Hodgson v. United Mine Workers of America, 344 F. Supp. 17 (D.D.C. 1972).

“Not only must the appellants’ contention swim upstream against the judicial current in so far as the relevant date for assessment of non-pecuniary damages is concerned, it must also traverse a legislative dam in the form of the 1989 amendments to the Courts of Justice Act”: Koukounakis v. Reid, 1995 CanLII 621 (Ont. C.A.).

“[W]hen it comes to retaining a lawyer, there are plenty of fish in the sea”: Royal Bank of Canada v. Anderson, 2023 ABKB 686.

There are a lot of fish in British Columbia, at least geographically speaking. There is Fish Bay, which is found on the south coast of the infamous Gil Island facing the junction of Squally and Whale Channels in Campania Sound. It was named after Robert Fish of Rock Bay, Victoria who was born in Dorsetshire, England on March 4, 1833 and migrated to Victoria in 1851. There is a Fish Island at the south end of Klemtu Passage just east of Swindle Island and not far from Bella Bella. There are six officially named Fish Creeks sprinkled around British Columbia, including “Two Fish” Creek. There are 17 Fish Lakes. For the anglers, there is Big Fish Lake, located to the west of the Columbia River near Briscoe, Little Fish Lake on Jolly Creek, and Lesser Fish Lake near Bridge Lake. For the socially indifferent, there is Cold Fish Lake on the Spatsizi Plateau.

Wikipedia states: “Though often used interchangeably, in biology fish and fishes have different meanings. Fish is used as a singular noun, or as a plural to describe multiple individuals from a single species. Fishes is used to describe different species or species groups”.

Kenneth Armstrong, K.C., was awarded the CBA Louis St. Laurent Award, the highest award conferred on a CBA member. It is given in recognition of a lifetime of outstanding service and professional achievement to the benefit of the legal profession.

In Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983), the U.S. Court of Appeals for the Fifth Circuit noted that “[t]his appeal of a trademark dispute presents us with a menu of edible delights sure to tempt connoisseurs of fish and fowl alike. At issue is the alleged infringement of two trademarks, ‘Fish-Fri’ and ‘Chick-Fri,’ held by appellant”. In the course of its discussion, the court noted dictionary definitions for the term “fish fry” (“1. a picnic at which fish are caught, fried, and eaten; .... 2. fried fish”) and further noted that “[i]t simply does not require an exercise of the imagination to deduce that ‘Fish-Fri’ is used to fry fish”. It added: “There are many edible fish in the sea, and as many ways to prepare them as there are varieties to be prepared. Even piscatorial gastronomes would agree, however, that frying is a form of preparation accepted virtually around the world, at restaurants starred and unstarred. The paucity of synonyms for the words ‘fish’ and ‘fry’ suggests that a merchant whose batter mix is specially spiced for frying fish is likely to find ‘fish fry’ a useful term for describing his product.” In turn, referring to the appellant’s “other culinary concoction”, Chick-Fri, the court noted it was “at least as descriptive of the act of frying chicken as ‘Fish-Fri’ is descriptive of frying fish.” Wrapping up, the court concluded: “And so our tale of fish and fowl draws to a close. We need not tarry long, for our taster’s choice yields but one result, and we have other fish to fry.”

Miranda Lam, K.C., Thomas A. Roper, K.C., Cliff Proudfoot, K.C., Cameron G. Belsher, K.C., Jill S. Yates and Steve M. Winder were all recently named to BIV News’s BC500 list for their contributions to shaping a better world.

“[O]ne would think the federal prosecutor has bigger fish to fry than a two pound marijuana case”: United States v. Elliott, 351 F. Supp. 2d 1054 (D. Mont. 2005).

“If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy”: R. v. Beatty, 2008 SCC 5.

Christine J. Deynaka was reappointed as a member of the Nelson Police Board for a term ending December 31, 2026.

Jeremy A. Burgess was reappointed to the board of Camosun College for a term ending July 31, 2027.

In Hampton v. North Carolina Pulp Co., 49 F. Supp. 625 (E.D.N.C. 1943), the U.S. District Court for the Eastern District of North Carolina embarked on an elaborate, occasionally Biblical, analysis when considering a civil lawsuit in which the plaintiff sought to recover damages for the alleged wrongful diversion and destruction of fish in the navigable waters of the Roanoke River:

Well, Fish is the subject of this story. From the fifth day of the Creation down through the centuries, some of which lie behind us like a hideous dream, fish have been a substantial factor in the affairs of men. After giving man dominion over all the Earth, God gave him dominion over the fish in particular, naming them first in order, reserving unto Himself only one certain fruit tree in the midst of the Garden….

The most notable group of fishermen of all time was that headed by Peter, the impulsive Apostle, and his followers Thomas, Nathaniel, the sons of Zebedee, and two other Disciples, seven fishermen in all a working majority of The Twelve.

Considered solely as a food product, fish have unlimited possibilities quantitative and qualitative. We are told that a few little fishes and seven loaves, five loaves and two fishes, according to St. Luke, were more than sufficient to feed a hungry multitude of four thousand men, together with the women and children present, and of the fragments there were seven baskets full of fish. ….

Professor Agassiz, the eminent Harvard scientist said: “Fish is a good brain food.” One wrote to know “in what quantities should it be taken?” The great scientist wrote back: “In your case, a whale a day for thirty days.” ….

Fish have their place in song and story. In song, from the nursery rime: “Little Fishes in the Brook,” to the huge leviathans that forsake unsounded deeps to dance on sands. In story, since the dawn of civilization and the imagination of man began to build romances and tall tales, full and fruity. He was more wag than skeptic who said: “In all the world there are only three really great fish stories Admiral Noah, Commodore Jonah and Captain John Smith.” Herbert Hoover added the fourth when, fishing in Nevada, he pulled a twenty-five pound trout from the green waters of Pyramid Lake.

The fish industry is among the foremost in World Trade. Indeed, in some countries it is the chief occupation of the people and the main source of national income. Through the ages it has developed a lore and nomenclature peculiar unto itself…. [footnotes omitted]

Lyall D. Knott, K.C., recently received the King Charles III Coronation Medal for outstanding contributions to the Rick Hansen Foundation.

Nikhil G. Pandey was reappointed as a member of the Delta Police Board for a term ending December 31, 2026.

“Some objects that may be used as weapons also have more innocent purposes. For example, a machete can be a lethal weapon or a useful device for deep sea fishing….A steak knife is appropriate at the dinner table, but sinister when concealed in a car with a BB gun”: State v. Lee, 96 N.J. 156 (1984).

“Criticizing Congress is the judicial equivalent of shooting fish in a barrel”: HRW Systems, Inc. v. Washington Gas Light Co., 823 F. Supp. 318 (D. Md. 1993).

“[T]o draw a red herring across the track” means “to attempt to divert attention from the real question; hence red herring, a subject intended to have this effect…”: R. v. Nafke, 2018 ABPC 138.

While defence counsel criticized the trial judge for applying the term “red herring” to a witness’s evidence, “[t]his argument was predicated on the proposition that a red herring is a proposition advanced with the express purpose of misleading the person to whom it is presented. If that were so, then a literal reading of the judge’s reasons would suggest that he made a negative finding of credibility in respect of the only defence witness without giving any explanation for that finding. However, in Black’s Law Dictionary the term ‘red herring’ is defined simply as ‘an irrelevant legal or factual issue’. Contrary to counsel’s argument, there is no suggestion in Black’s that the proposition advanced must be deliberately intended to deceive or mislead. Without that intention, counsel’s argument on this point must fail”: R. v. Ayvaz, 2009 CanLII 45326 (Ont. S.C.).

“[I]f the defendant deliberately baits the hook by filing an affidavit which clearly relies upon specific, discrete documentation, it should not be heard to complain too loudly when the plaintiff bites”: Pineo v. Sona Nanotech Inc., 2022 NSSC 85.

Barbara A. Carmichael, K.C., was appointed to and designated chair of the Justice and Public Safety Council. Also appointed to the Justice and Public Safety Council were Mark S. Weintraub, K.C., Paul A. Craven, Trevor A. Shaw and Taryn A. Walsh . Prior to her appointment to the Provincial Court, Colleen Spier, K.C., was appointed to the Justice and Public Safety Council as well.

The Globe and Mail recently reported on some inappropriate communications made to a judge by a litigant before him: Susan Krashinsky Robertson,

“Ontario Superior Court chief justice rebukes BC billionaire seeking Bay leases for ‘inappropriate’ correspondence with judge”, Globe and Mail (30 July 2025). Our guess is that ChatGPT was not involved. There is far too much poetry at work here:

The chief justice of the Ontario Superior Court has admonished Weihong (Ruby) Liu, the B.C. billionaire vying to buy more than two dozen Hudson’s Bay Co. leases, for e-mailing the judge overseeing the retail bankruptcy in order to press her case – correspondence that the court has deemed “inappropriate” and warned would be considered “harassing communications” if it continued. The correspondence to Justice Peter Osborne came from Ms. Liu, the chairwoman of real estate investment company Central Walk, based in Nanaimo, B.C., and from Central Walk’s chief executive officer Linda Qin, and praised the judge for “your grace, your dignity, your quiet but commanding presence,” while accusing the lawyers representing other parties in the case of “corruption.”

The judge disclosed the correspondence at a recent hearing, stating from the bench that “in no circumstances should any party attempt to communicate directly with me” as court proceedings continue. In her letter, Ms. Liu called the judge “a person of justice and strength.” The correspondence was partially redacted. “Is this what I have read of in books – true nobility?” the letter stated. “Or is it the lifelong defence of your own integrity and kindness? Or perhaps, is there also a silent sorrow in your heart at the compromises this world demands?”

“[E]xtreme language” such as “tall tale,” “fairy stories,” a “cockamamie yarn,” a “fish story,” and a “cock and bull story” “is rarely, if ever, persuasive”: DOMO Development Corp. v. NEPO, No. 1:2019cv24355 - Document 39 (S.D. Fla. 2021).

“The concept of a fishing pond is comparatively simple. Natural or created depressions in the land are filled with water, thereby resulting in a pond or small lake, the pond is then stocked with fish caught elsewhere (they do not reproduce in the pond), pumping facilities are installed to change the water to sustain the fish, then customers are invited to catch the fish for a fee. It is closely akin to fishing in a barrel or like a fish pond at a church bazaar where for a fee a prize of doubtful value is obtained”: Meredith v. The Queen, [1976] 1 F.C. 292 (T.D.).

Jacqueline R. Reed was appointed to the board of the University of Northern British Columbia.

Rabjeet S. Wallia was recently appointed chair of the Capilano University board of governors.

Pisces is the 12th sign of the zodiac.

The website Law Prep Tutorial explains that “[c]ertain zodiac signs possess innate traits that align exceptionally well with the demands of the legal profession”. Pisces is not in the “top” grouping but at least falls within an “also ran” category, with the website noting, “Pisces individuals excel in roles that require empathy and intuition, such as family law and mediation. Their compassionate nature allows them to connect deeply with clients, understanding their emotional needs and providing the necessary support during difficult legal situations.” The Advocate’s assistant editor has an astrological sign that is entirely omitted from the list of signs suitable for engaging in the legal profession, but fortunately, the website explains further: “Each individual is unique, and while zodiac signs can highlight general tendencies, they do not account for the full complexity of a person’s character and abilities. Relying solely on astrology can lead to oversimplified and inaccurate assumptions about a person’s potential. It’s important to avoid pigeonholing individuals into specific roles based solely on their zodiac signs. Doing so can create biases that overlook a person’s true capabilities and limit their career opportunities.”

The website Legal Career Path points those with a Pisces sign in a different practice direction, although perhaps because of similar traits: “Pisces are sympathetic, selfless, and assistive, which ideally cater to public or immigration-defense positions. They are frequently drawn to interact with vulnerable communities due to their strong social justice orientation. This zodiac sign proves to be an excellent defender of the oppressed. Their profound emotional receptivity allows them to seize even the subtlest feelings of their clients and develop relevant strategies.”

The VBA held its annual VBA Charity Golf Classic at Fraserview Golf Course on July 8, 2025. Emerging victorious from the fifteen teams scrambling to take home the trophy were Claire Shanna, Luke V. Elliott, Morgan Latremouille and Neal Parker.

Craig T. Munroe was appointed as a member of the board of the Organized Crime Agency of British Columbia for a term ending on June 30, 2026.

Meena H.K. Dhillon was appointed to the board of the Knowledge Network Corporation for a term ending December 31, 2028.

Erin L. Barnes was reappointed as a member of the board of Kwantlen Polytechnic University for a term ending July 31, 2027.

Monique Pongracic-Speier, K.C., and Raphael Tachie were appointed as members of the board of Simon Fraser University for terms ending July 31, 2026.

Peter C.P. Behie, K.C., was appointed as a member of the board of Vancouver Island University for a term ending July 31, 2026.

“[I]t really is time to fish or cut bait. After the production of documents that the applicant seeks has been completed, the parties will need to decide whether to settle the matter or to proceed to a hearing”: International Brotherhood of Electrical Workers, Local 353 v. The Board of Directors of Exhibition Place, 2017 CanLII 38375 (Ont. L.R.B.).

As the Cambridge Dictionary notes, to “fish for compliments” is “to try to get people to say good things about you”.

The Supreme Court of Delaware has noted that “[a] deliberate state of mind is a different kettle of fish than a reckless one”: Express Scripts, Inc. v. Bracket Holdings Corp., C.A. No. N15C-02-233 CCLD (2021).

Karen L. Snowshoe, K.C., was awarded the Law Society of B.C. Award at the Bench & Bar dinner on June 11, 2025. Justice Scott Morishita received the Lawyers Assistance Program of BC’s Lawyers Helping Lawyers Award and Christopher Johnson, K.C., was awarded the CBABC’s Georges A Goyer, QC Memorial Award for Distinguished Service.

“An action at law is not a fishing expedition and a plaintiff who starts proceedings simply in the hope that something will turn up abuses the court’s process”: Painblanc v. Kastner, 1991 CanLII 14420 (Fed. C.A.).

“[I]f the statement is false but there is no intention that it will be relied upon, there is also no intention to deceive. There may be an intention to tell a false fishing story, but there is no intended reliance”: NEP Canada ULC v. MEC OP LLC, 2021 ABQB 180.

“Deep-sea fishing is not more speculative than mining, for breach of contract with respect to which future profits have been allowed as damages”: Emerson v. Pacific Coast & Norway Packing Co., 96 Minn. 1.

Nicole E. Smith was elected as a bencher in Nanaimo County in the May 2025 bencher by-election.

Stephanie Fabbro, K.C., was recently appointed to the Sport Dispute Resolution Centre of Canada list of mediators.

“The complaint is riddled with problems. If the problems are fish in a barrel, the complaint contains an entire school of tuna. It is a target-rich environment. The complaint is an Issue-Spotting Wonderland”: Blagojevich v. State of Illinois, No. 1:2021cv04103 - Document 27 (N.D. Ill. 2024).

As the Court of Chancery in the State of Delaware noted in McRitchie v. Zuckerberg, C.A. No. 2022-0890-JTL (2024), “Fish don’t talk about water”. The court explained: “The old joke goes something like this: Two young fish are swimming along when an older fish passes by going the other way. He nods at them and says, ‘Morning, boys. How’s the water?’ The two young fish swim on for a bit, then one of them looks over at the other and asks, ‘What the heck is water?’ David Foster Wallace [the late writer and professor] made a version of the story famous in his 2005 commencement speech at Kenyon College….As he explains, ‘The immediate point of the fish story is merely that the most obvious, ubiquitous, important realities are often the ones that are hardest to see and talk about.’”

Justice Southin noted the following in Proconic Electronics Ltd. v. Wong, 1985 CanLII 253 (B.C.S.C.): “While the expression ‘a fishing expedition’ is hallowed by usage, it really does not provide a principle upon which a decision can be founded. Some fishing expeditions are, if I may put it so, licensed by the Rules of Court and authority; others are not. Perhaps it is not too fanciful to say that a litigant cannot have a licence to fish in his opponent’s private swimming pool unless he can provide some evidence from which it can be inferred that there may be fish in that pool. If there is no such evidence, the defendant need not let him in to see if there is a fish.”

Thought du mois:

The men who enjoy the government I have spoken of are like fish who swim in the sea without constraint. Those who live in a prudent and moderate monarchy or aristocracy seem to be in large nets, in which they are caught, though they think themselves free. But those who live in purely despotic States are in such tight nets that they feel themselves to be caught right at the outset.

—Charles Louis de Secondat, Baron de Montesquieu, judge and political philosopher (1753–1794). ЖЖЖ

November 4 & 5, 2025 8:15am-4:45pm 2025!

CONTRIBUTORS

Marco Abbruzi is a full-time mediator and arbitrator and founder of Accordance Dispute Resolution LLP. He resolves business, family, estates and workplace disputes, from multimillion-dollar contested wills to who gets the good office chair (is there a good office chair?!). In addition to having a talent for bringing people together, he might just possibly like quoting arcane case law and is on the lookout for fellow Lord Denning fans.

His Majesty King Charles III is a sitting monarch and King of Canada currently residing in the United Kingdom. A frequent visitor to Canada, he was marshal of the 1977 Calgary Stampede parade, opened the Expo 86 world fair in Vancouver, and enjoyed a ski holiday in Whistler in 1998 with a future King of Canada. His Majesty is also an active farmer, having operated Home Farm from his 900-acre Gloucestershire retreat, Highgrove, since 1985. The King is also known to the bar as the “K” in “K.C.”

King Charles III’s (and formerly his mother’s) counsel and a longtime partner at the Vancouver civil litigation firm Laxton Gibbens, Robert D. Gibbens, K.C., was called to the B.C. bar in 1985. His varied areas of practice have included cases, often with household (well, if lawyers are in the household) names, regarding serious injury and abuse, pensions law and social worker liability.

Eric Kroshus is a senior associate practising employment and labour law at KPMG Law LLP. Making him particularly qualified to write about the subject matter of his short story, Eric has a bachelor’s degree in neurobiology from Harvard.

Tom Posyniak is a partner in Fasken’s commercial litigation group in Vancouver. He has an active appellate practice and is a co-author of the CLEBC Civil Appeal Handbook One may, in fact … drum roll, please … defer to him on certain appellate-related topics.

Robert K. Smithson graduated from Dalhousie Law in 1994, then began his legal career in 1995 as in-house counsel for the Teamsters union, in Vancouver. He has since worked as a human resources/industrial relations executive in private industry, as an associate with (then) Schiller Coutts Weiler & Gibson in Vancouver, and as an associate and partner at Pushor Mitchell in Kelowna before opening Smithson Employment Law Corporation in 2011. But where does he now stand in relation to Great Big Sea?