Issuu

Spring 2021 | Volume 30

Number 1

Published 3 Times a Year by the BC Notaries Association

Photo: Natasha Martinez

years

Dr. Margaret Isabel Hall, Professor and Society of Notaries Public of BC Chair in Applied Legal Studies | School of Criminology Simon Fraser University

THEME:

The Education of BC Notaries Publications Mail Agreement: 40010827

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click on an article or page number. P U B L I S H E D BY T H E B C N OTA R I E S A S S O C I AT I O N

Applied Legal Studies 602 Legal Research and Writing

CEO, BC NOTARIES ASSOCIATION

Spring is in the Air, and with Much More Optimism this Year!

Chad Rintoul KEYNOTE

BC Notaries’ Education

Applied Legal Studies 620 Selected Topics in Applied Legal Studies Graeme Bowbrick

Val Wilson

Applied Legal Studies 610 Contracts 30

THEME: The Education of BC Notaries

Robert Russo

The Education of BC Notaries over 40 Years 10 Marny Morin

Some Reflections on the Creation of the “MA-ALS” Program at SFU 12 Robert M. Gordon, PhD

TECH & ETHICS

Applied Legal Studies 630 Topics in Professional Practice

How the MA-ALS Degree Underpins a Successful BC Notary Practice

Knowledge is Powerful . . . I Enjoy Sharing Mine

Wills, Estates and Personal Planning Class

The Conveyancing Course for Managing the Transfer of Property in BC

The Learning Doesn’t Stop

BC Notaries’ Education is Rigorous

Challenge and Success!

The Education of a BC Notary From a Student’s Perspective

Todd McKendrick

Educational Shifts in the SFU MA-ALS for Notaries John Whatley, PhD

Applied Legal Studies 611 Real Property I Katie Sykes

“Charter Member Educators” of the MA-ALS Program

Jackie Tait

Trish Fedewich

TEACHING IN THE SFU MA-ALS PROGRAM

“Nine Years Before the Mast” 18

Lorne Mann

Ron Usher

Rimpy Sadhra

Leslie Madore

Photo: Natasha Martinez

Julia Maika

Victoria (Vicky) M. Helmink

Greetings from Simon Fraser University and the Master of Arts in Applied Legal Studies 20

EDUCATING CIVIL LAW AND COMMON LAW NOTARIES

LEGAL E-DOCUMENTS

Peter Zablud, AM, RFD

Dr. Margaret Hall

Legal Philosophy ALS 603 | Personal Planning ALS 615 Personal Planning Law and e-Wills 23 Dr. Margaret Hall

Bologna and Beyond Medieval and Modern Notary Education THE PATH TO SUCCESS

The Education of Self Nigel Atkin

Applied Legal Studies 601 Advanced Topics in Canadian Law and the Canadian Legal System 25

Franca Muraca

Editor’s 44

COVER STORY

Helene Love

45 49

MONEY LAUNDERING

Anti-Money Laundering Training is a Requirement Don’t Ignore the Penalties Chris Walker

BC Notaries Association

Volume 30 Number 1 Spring 2021

The Scrivener: What’s in a Name?

Services a BC Notary Can Provide

Recent BCNA Education Event!

Thank You to Our 2021 Sponsors

Editor-in-Chief Val Wilson

Notary Student Virtual Career Fair

BCNA CEO

Chad Rintoul

Administrative Coordinator:

Olivia Kuyvenhoven

Trista Zamany

ORIGINAL RECIPE

Ukrainian Borscht Recipe Roman Svirshchevs’kyy

Published by the BC Notaries Association

Courier Lightspeed Courier & Logistics Photographer Wildman Photography

THE MiX CHARITABLE GIVING

Picking up the Stitches Sara Neely

ELECTRONIC DOCUMENTS

Electronic Wills, Enduring Powers of Attorney, and Representation Agreements New Rules and Practice Tips Sara Pon

CONTROLLING YOUR MINDSTORIES

Freedom from the Frantic Mind Carla Rieger

The Interesting History of the Bridge in Quesnel, BC Ron Hyde

STRATA LAW

Whose Strata Lot Is It Anyway? Elaine McCormack, Emily Sheard WILLS & ESTATES

email:

scrivener@bcnotaryassociation.ca

63 66

68 70

Special Costs 2021

BC Notaries Speak Your Language

Trevor Todd

The Scrivener

website: www.bcnotaryassociation.ca

Letters 67 HISTORY OF BC

Send photographs to scrivener@bcnotaryassociation.ca All rights reserved. Contents may not be reprinted or reproduced without written permission from the publisher. This journal is a forum for discussion, not a medium of official pronouncement. The BC Notaries Association does not, in any sense, endorse or accept responsibility for opinions expressed by contributors.

PEOPLE 78

The Scrivener: What’s in a Name? “A professional penman, a copyist, a scribe . . . a Notary.” Thus the Oxford English Dictionary describes a scrivener, the craftsman charged with ensuring that the written affairs of others flow smoothly, seamlessly, and accurately. Where a scrivener must record the files accurately, it’s the Notary whose Seal is bond. We chose The Scrivener as the name of our magazine to celebrate the Notary’s role in drafting, communicating, authenticating, and getting the facts straight. We strive to publish articles about points of law and the Notary profession for the education and enjoyment of our members, our allied professionals in business, and the public in British Columbia. Volume 30 Number 1 Spring 2021

The Scrivener | www.bcnotaryassociation.ca

CANADA POST: PUBLICATIONS MAIL AGREEMENT No. 40010827 Postage Paid at Vancouver, BC RETURN UNDELIVERABLE CANADIAN ADDRESSES TO CIRCULATION DEPT. BC NOTARIES ASSOCIATION SUITE 201, 2453 BEACON AVENUE SIDNEY, BRITISH COLUMBIA V8L 1X7 WWW.BCNOTARYASSOCIATION.CA

TABLE OF CONTENTS

Tracey Scott Photography

CEO, BC NOTARIES ASSOCIATION

Chad Rintoul

Spring is in the Air, and with Much More Optimism this Year!

hile the challenges of the global pandemic are not behind us, there is light at the end of this tunnel. I encourage you to take pride in the remarkable resilience we have all shown to adapt and thrive, even while having modified our social and professional habits to help keep our friends, families, and colleagues safe. A sure sign of recovery crossed my desk in early March as the BCNA begins planning for our next in-person Conference, scheduled

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©iStockphoto.com/Carmian

Please save the dates; we look forward to networking, continuing education, and exhibits from our valued industry partners. for February 25–27, 2022, at the Sheraton Vancouver Wall Centre hotel. Please save the dates; we look forward to networking, continuing education, and exhibits from our valued industry partners. Public health regulations permitting, and in keeping with the 2021–2023 Strategic Plan, BC Notaries Association

the BCNA will host an Annual Conference for Notaries, moving forward to focus on their continuing education needs. We will also hold a Virtual Annual General Meeting each Fall to provide members with an update on the Association and our endeavours on behalf of the profession. With input received from members and stakeholders, the Strategic Plan identifies four key action areas for the Association. • Financial Stability • Continuing Education • Government Advocacy • Promoting Notaries Volume 30 Number 1 Spring 2021

Advancing any initiative is dependent on financial stability; we highly anticipate working with our partners at ProSuite and the BC Notary Foundation to ensure that those resources continue to support the operational capabilities of the Association to provide continuing education services to BC Notaries. Our sponsors are also important partners in the success of the Association and the profession; we will look to ensure those relationships are mutually beneficial as we move ahead. Controlling costs will continue to be a priority and, as such, The Scrivener will evolve. We will continue providing excellent educational and promotional opportunities as we aim to reduce print circulation and increase electronic distribution and the profile of the publication. The first

Volume 30 Number 1 Spring 2021

I look forward to the challenges ahead and the direction our new Strategic Plan will provide… of those steps will be to implement a tri-annual Scrivener production cycle by omitting the Summer edition of the magazine. Continuing Education is identified as a growth area for the Association within the Strategic Plan as we look to go beyond the provision of Continuing Education credits for practising Notaries; we will develop curriculum for Notarial staff in areas such as conveyancing. We will also seek support from The Notary Foundation to explore cost-effective means to provide regional education opportunities to Notary Chapters as we move into the second and third year of the Strategic Plan.

The Scrivener | www.bcnotaryassociation.ca

In cooperation with The Society of Notaries Public of BC as regulator, our joint partnership with Simon Fraser University remains of paramount importance; the Association will engage with SFU and Dr. Margaret Hall, Chair of the Master of Applied Legal Studies Program, to ensure SFU participation in our Continuing Education initiatives, and help facilitate the timely development of enhanced curriculum to enable potential expanded scopes of practice initiatives for BC Notaries. I look forward to the challenges ahead and the direction our new Strategic Plan will provide both to management and the Board, as the BCNA advocates, educates, promotes, and supports Notaries throughout British Columbia! s Respectfully, Chad Rintoul, Chief Executive Officer

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BC Notaries’ Education

his comment by SFU’s Dr. Rob Gordon sums up the success of this issue, “The Spring Scrivener holds an important historical record of The Education of BC Notaries.” Our magazine is always a team effort.

In our Spring issue, articles that focus on our theme include • retrospectives on the MA-ALS from its birth at SFU in 2007, • Dr. Margaret Hall’s introduction to the current courses at SFU, • articles by the instructors about their specific courses, and • a piece about the challenging technical aspects of today’s course delivery.

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KEYNOTE

Val Wilson Editor-in-Chief

All the educators are fully qualified, highly respected, and have comprehensive knowledge of BC law in their respective fields. Many thanks to Dr. Hall for her outstanding assistance in co-ordinating the articles from SFU. Thank you to all the writers in this issue! Please stay safe and be kind to each other! s

The Notary Foundation of British Columbia works with interest generated by BC Notaries’ Trust Accounts and received from our financial industry and other partners, to promote education for BC Notaries and the public, foster legal research, support law libraries, and help fund legal aid in BC. Talk to us if you’re interested in having an impact on those important facets of BC’s communities. Funding and strategic decisions and oversight are provided by a Board of Governors made up of 8 Directors of The Society of Notaries Public, 1 appointee from the Office of the Attorney General of BC, and 2 Governors at Large appointed by the BC Government.

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Applications for funding of law-related education programs, research, and projects may be made and will be considered throughout the year. For more information, visit our website at www.notaryfoundation.ca.

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BC Notaries Association

Volume 30 Number 1 Spring 2021

Creative Adaptable Analytical Today’s successful real estate professional is committed to lifelong learning. UBC’s Continuing Professional Development Courses meet your needs. • Convenient online course format • Broad range of valuation and real estate business topics • Guaranteed Appraisal Institute of Canada’s Continuing Professional Development credits Business Development Series: Eight courses designed to provide practitioners with the entrepreneurial and practical skills to establish and successfully operate a real estate business.  Entrepreneurship and Small Business Development  Business Strategy: Managing a Profitable Real Estate Business  Succession Planning for Real Estate Professionals  Organizing and Financing a Real Estate Business  Accounting and Taxation Considerations for a Real Estate Business  Marketing and Technology Considerations for a Real Estate Business  Human Resources Management Considerations in Real Estate  Law and Ethical Considerations in Real Estate Business

To find out more, visit:

realestate.ubc.ca/CPD tel: 604.822.2227 / 1.877.775.7733 email: cpd@realestate.sauder.ubc.ca

THE EDUCATION OF BC NOTARIES

The Education of BC Notaries over 40 Years

©iStockphoto.com/CASEZY

have been involved in student education for The Society of Notaries Public of BC since the early 1990s. I graduated and received my commission as a Notary in 1989, following 15 years as a senior conveyance assistant to Notaries and lawyers in Ontario and British Columbia. At the time I graduated, the Notary program was a series of chapters largely taken from the Real Estate licensing course at the time. It was administered by the then Real Estate Division of the University of British Columbia and was completely self-learned. Students were given written materials and a compendium of legislative Acts as study guides. Students read the chapters and completed and submitted assignments on each topic. Topics of study covered real property including registration principles, the Torrens System of property registration, residential and commercial tenancies, and mortgages.

Marny Morin

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Other topics included torts, contracts, and agency as well as some add-on chapters on Powers of Attorney, Wills, and estate administration.

…in the early ‘90s, the Board of Directors of the day called for a review of the Notary training program by a third-party consultant. That resulted in a complete overhaul of the program. Each class was assigned UBC tutors from the Real Estate Division for questions. None of the teaching assistants were Notaries. At the end of the program, students were examined in accordance with the Regulations to the Notaries Act. At the time I graduated, a separate course had been added to the curriculum—a distance-learning course on conveyancing practice. Once the courses were satisfactorily completed, an appointed Board of Examiners administered six written examinations covering contracts, Wills and trusts, property, BC Notaries Association

Notarial procedure, statutes, and conveyancing practice. Practical training consisted of 2 days of advice in the days before graduation; the class members met each other for the first time. There was no mentoring requirement or other on-site work with a BC Notary Public. At the time, students “shopped” for a Seal—the right to practise in a defined geographical area. Only 321 “Seals” were available; all were allocated to specific municipalities . . . some were more desirable than others. In effect, a Notary student had to wait for a vacant Seal or negotiate a purchase arrangement for a Seal in a specific community. That sometimes created a bidding situation for Seals in choice locations. Shortly after that, in the early ‘90s, the Board of Directors of the day called for a review of the Notary training program by a thirdparty consultant. That resulted in a complete overhaul of the program. It was developed from the ground up in a more modern and focused format with eight Volume 30 Number 1 Spring 2021

topic-modules consisting of 5 to 8 chapters within each module. All materials were written with an emphasis on noncontentious legal services as provided by Notaries in practice. UBC remained the endorser of the program, issuing a Certificate to graduates; the administration was brought in-house to The Society. Teaching tutors were Notaries; in-person practical training was added between each module to assist students in applying the material to practice situations. A mentoring component was added to the course, requiring students to spend time in a Notary office as part of their training. As part of the new program, the Board of Directors mandated that Notary students must have a university degree as a minimum education requirement for enrollment. The new program, rolled out in 1995, was the education requirement for students for the next decade. In 2005, The Society took another comprehensive look at the student education program. The Education Committee of The Society brought consulting educators to the table to discuss improvements to the program at a weekend retreat. From the start, everyone agreed the program required a credential commensurate with not only the responsibilities on Notaries to provide professional legal services, but with the increasing public support Notaries earned as alternate legal service providers in the Province. And so was born the current relationship with Simon Fraser University who came to the table with an idea for a Master of Arts degree in Applied Legal Studies. A task force of SFU educators and Notaries created an academic Volume 30 Number 1 Spring 2021

program that would provide Notaries with core academic competencies in the following areas. Canadian Legal System Legal Research and Writing Property Law Contract Law Wills and Personal Planning Philosophy of Law A suite of focused courses on Taxes, Builders Liens, Personal Property Security, Business Relationships, and Incorporation rounds out the program. In addition, the practical training course and mentoring requirements were expanded significantly to include 9 weeks of intense training in the application of the academics learned as well as conveyancing and Notary practice. The new SFU degree program enrolled its first cohort of Notary students in 2008, with the first class graduating in 2010. At the same time, in 2009 the BC Government, pursuant to the Trade, Investment and Labour Mobility Agreement (TILMA) with Alberta, amended the Notaries Act to repeal all references to geographical area and number of Notary Seals. That, along with the MA-ALS degree, significantly opened the pool of candidates for enrollment. Since then, The Society has graduated 236 Notaries from the SFU program. The people of British Columbia have enjoyed a choice in legal service providers for noncontentious services for many years. That is a choice no other Province in Canada enjoys, save for the civil law Chambre des Notaires of Quebec. The Society is committed to ensuring that its graduates are competent to provide services and give advice within their scope of practice. s Marny J. Morin, Notary Public, is Secretary and Director of Programs and Services for The Society of Notaries Public of BC. The Scrivener | www.bcnotaryassociation.ca

Services a BC Notary Can Provide Notarization/Documents Affidavits for All Documents required at a Public Registry within BC Certified True Copies of Documents Execution/Authentications of International Documents Notarizations/Attestations of Signatures Personal Property Security Agreements Statutory Declarations Personal Planning Estate Planning Health Care Declarations Powers of Attorney Representation Agreements Wills Preparation Wills Searches Travel Authorization of Minor Child Travel Letters of Invitation for Foreign Travel Passport Application Documentation Proof of Identity for Travel Purposes Business Business Purchase/Sale Commercial Leases and Assignment of Leases Contracts and Agreements Property Matters Easements and Rights of Way Insurance Loss Declarations Manufactured Home Transfers Mortgage Refinancing Documentation Purchaser’s Side of Foreclosures Refinancing Residential and Commercial Real Estate Transfers Restrictive Covenants and Builders Liens Subdivisions and Statutory Building Schemes Zoning Applications Marine Marine Bills of Sale and Mortgages Marine Protests Some BC Notaries provide these services. Marriage Licences Mediation Real Estate Disclosure Statements

There are Notaries to serve you throughout British Columbia For the BC Notary office nearest you, please call 1-604-676-8570 or visit www.bcnotaryassociation.ca. TABLE OF CONTENTS

THE EDUCATION OF BC NOTARIES

Some Reflections on the Creation of the “MA-ALS” Program at SFU

t the time of writing, March 2021, more than 50 per cent of practising Notaries in British Columbia are graduates of SFU’s MA in Applied Legal Studies (MA-ALS) Program. For those closely associated with the Program, that statistic is immensely gratifying especially since both the development and the implementation of a professional graduate program like MA-ALS involves a range of significant challenges. They include securing the initial approval and then the actual support (fiscal and otherwise) of the upper echelons of the affected university (including the university senate); identifying and hiring qualified, committed, and energetic faculty and staff; recruiting and retaining qualified prospective graduate students; and generating and maintaining the support of the affected professional bodies. The list is not exhaustive.

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Robert M. Gordon, PhD

©iStockphoto.com/Brendan Hunter

There is little doubt that teamwork lies at the heart of a successful professional graduate program and that was a key characteristic of the MA-ALS partnership from its inception.

It wasn’t always a match made in heaven but, in the end, the process and the outcome reflected a happy and productive union. From the early 2000s onward, numerous conversations took place at various locations (some more informal than others), focused on the best ways of meeting the objectives of both The Society of Notaries Public and the University. It wasn’t always a match made in heaven but, in the end, the process and the outcome reflected a happy and productive union. There were, in essence, two teams of people involved with the MA-ALS project—one led by Wayne Braid, then BC Notaries Association

Executive Director of The Society of Notaries Public, and the other led by me, a Professor in the School of Criminology at SFU and, at the time, the Director of the School. The corporate memory recalls several informal meetings between the two team leaders (and often other key individuals), held in the true Athenian tradition over the course of several years. There was a consequential open exchange of ideas, lubricated and sometimes memorable Socratic dialogues, and the generation of creative solutions to numerous problems, some foreseen, others less so. A happy moment came when the two team leaders sat together on the floor (not literally) of the Senate at SFU to answer questions and witness the Senate’s approval of the application for what was, at the time, a new and unique degree program. In the course of the development phase, several challenges had to be addressed. There was no precedent to follow in Canadian common law jurisdictions, no equivalent program upon Volume 30 Number 1 Spring 2021

which to piggyback. That said, the question arose should the new and unique program follow a traditional law school model or head off in an entirely new and untried direction? The choice was limited given the need to secure almost immediate public and professional support for the program and its graduates. It will be obvious that a modified law school model was chosen and that proved to be the right choice. One option that was seriously considered for several months was to build upon an existing, upper level (i.e., senior) undergraduate program (e.g., a diploma in legal studies) with easier admission requirements and gentler performance expectations. In the alternative, should the program be pitched at an extremely rigorous, graduate (i.e., MA) level? The decision made is now clear and, again, has proved to be the correct one. An early issue that returned several times to haunt the two teams was that of program admission requirements. Possession of a first degree in a related field with a minimum grade-point average as a measure of potential success was and is a University standard, but the teams did not want to exclude applicants who might have extensive practice experience but limited academic qualifications.

Test or “NPAT”), or just rely upon a different set of criteria such as performance in certain types of courses or prior work in law-related or legal-studies courses?

Yet another issue was the best mode of delivery for the program, given that students were unlikely to be able to come to the University for regular instruction over a protracted period of time. Language competency created yet another challenge and its own set of headaches. Standardized testing options such as TOEFL (Test of English as a Foreign Language) were and are helpful in the case of students educated outside of Canada, but are not without limitations; measures had to be developed to address the needs of students, usually during their first term in the program and in the wake of their first evaluated essay. One solution was to create a group of tutors who understood the rules affecting academic integrity at the University and who were prepared to assist students privately, if they were experiencing identifiable writing difficulties.

Exceptions had to be developed bearing in mind that in an increasingly litigious society, exceptions to a rule or policy invariably involve the exercise of discretion and are the seed bed of appeals and protests; they are the consequent source of nightmares for those administering such programs.

Yet another issue was the best mode of delivery for the program, given that students were unlikely to be able to come to the University for regular instruction over a protracted period of time. It was anticipated that they would be scattered around the Province, possibly living in other Canadian jurisdictions and, as we later discovered, living in other countries.

Should we, for example, require an LSAT score (Law School Admission Test), develop our own equivalent admission test (e.g., a Notaries Program Admission

One student, for example, was living and working on Bermuda but planned to return to the Province to live and work as a Notary. Another was living and working in

Volume 30 Number 1 Spring 2021

The Scrivener | www.bcnotaryassociation.ca

the Middle East. In that regard, we were on slightly more familiar and predictable ground because SFU had (and has) a sophisticated and welldeveloped online delivery system for its undergraduate degree programs that could be easily adapted for the delivery of graduate programs. At the time, however, those kinds of graduate programs were few in number at SFU and were viewed with some skepticism by faculty (after all, how could such programs impose the same degree of rigour as a “face-to-face” program?). That created challenges for both the teams and the faculty teaching the courses but, in the end, the learning outcomes were sound as evidenced by the results of the Program’s final examinations that were NOT held “online.” The final examination (in three parts) for the degree, which comprises several hours of supervised face-to-face work in an examination room at an SFU campus, is not a perfect way to test a candidate’s knowledge of core subjects such as real property and incapacity planning, but it is better than any other. Last but not least was the question of whether there would be sufficient numbers of students to start and then sustain the program. That concern turned out to be the least of our worries, especially in the longer term. While adjustments had to be made by the Notaries’ team that had been using a particular set of selection criteria for many years (including things like evidence of an applicant’s involvement in community activities or experience working with a Notary Public), the criteria began to shift in the face of new cohorts of potential students who had to meet the University’s graduate programs’ TABLE OF CONTENTS

“Charter Member Educators” of the MA-ALS Program who taught the first cohort in 2008 Neil Boyd, LLM, Professor, SFU Canadian Law and Legal System Robert Gordon, PhD, Professor, and ALS Program Director, SFU Selected Topics in Applied Legal Studies David Macalister, LLM, Associate Professor, SFU Legal Philosophy Graeme Bowbrick, LLM, QC, Adjunct Professor Legal Research and Communication George Cadman, QC, Boughton Law, Adjunct Professor Real Property I and Real Property II Tony Wilson, QC, Boughton Law, Adjunct Professor Contracts Peter Ramsay, QC, Ramsay Lampman Rhodes, Adjunct Professor Wills, Estates and Incapacity Planning Marny Morin, Notary Public Society of Notaries Public Selected Topics in Applied Legal Studies Todd McKendrick, MBA, Adjunct Professor Issues in Legal Practice John Whatley, PhD, Former Program Director, Centre for Online and Distance Learning

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admission criteria in addition to the preferences of The Society of Notaries. Slowly, the demographics of each incoming student body changed as did the size of each cohort, which grew considerably with each passing year. The numbers of applicants did not dwindle, in part because, in many respects, a professional graduate program has an advantage over other university graduate programs. It has a connection to an area of professional employment following graduation, and as long as the student is successful in completing the professional training and other programs that had to be completed prior to being sworn in as a Notary, graduates pretty much had a job waiting at the end of the day. The first cohort was selected in 2007 and 15 applicants began their coursework at the Surrey Campus of SFU in September 2008. That was a small but blessedly manageable cohort that, as it turns out, was about half the size of what would eventually become the standard cohort. At one point, the cohort numbers swelled to such a degree where there were serious discussions about splitting the intakes with consequential financial and program coordination challenges. From the University’s perspective, that would have been a good move because the program was then able to pull its weight financially in both the short and longer terms. Premium fees were contemplated at the outset but were not, and are not, being charged, primarily because of an earlier provincial policy that sought to encourage students to attend programs at the Surrey Campus of SFU where the MA-ALS Program was located. At the time, MA-ALS was one of a handful of graduate programs that were physically located at what was then still a new (ish) SFU campus. The first cohort mostly stayed with the Program, completed all their BC Notaries Association

courses (some faster than others), and did well in passing the rigorous threepart final examination for the degree. The majority survived and eventually entered the Notary Public professional education program, and that became the norm for subsequent cohorts.

The first cohort was selected in 2007 and 15 applicants began their coursework at the Surrey Campus of SFU in September 2008. There were the inevitable casualties along the way (also known as the “melt”) as is the case with other professional degree programs. In law schools, for example, melts occur in December (the Christmas Melt) after the first-term experience, and again in the Summer. The Summer Melt is usually driven by a student’s selfevaluation of his or her suitability for the practice of law (as well as the meaning of life). In the case of MA-ALS students, the melts appeared to be due to • their underestimation of the time and energy involved in completing three courses in a 13–14-week term; • their overestimation of their abilities to juggle study required for courses that have high expectations; • home commitments; and • employment expectations. The majority had not set foot in a university for many years and had forgotten the skills required to successfully negotiate the institution. Some students faced significant language challenges because they were members of incoming migrant groups and were fairly recent arrivals in Canada. Others were unacquainted with Canadian common law requirements and found much mystery in the whole affair. To be fair, however, the same can be said of those entering the MA-ALS Volume 30 Number 1 Spring 2021

Program with a physical science or computing science background from a Canadian university. Some held law degrees from their countries of origin where they had, in some instances, practised law; other students had other graduate degrees, including PhDs, in a range of disciplines. They were welcome additions to the MA-ALS Program although they posed special challenges for instructors who had to help the students wind back on their fundamental understanding of law in, for example, an East European or Middle Eastern jurisdiction, and then reset and wind forward for work in a common law Canadian jurisdiction. The student advantage, in practice, lay in their special understandings of the communities they had targeted and would eventually serve, both culturally and linguistically. A Notary Public with an MA in ALS who had been schooled in law, for example in Poland, would likely be extremely attractive to Polish-born residents of particular communities in, say, Metro Vancouver. The same would likely be true of Notaries coming from the Philippines or from Punjab or Russia or Iran and so on. There were many other challenges for the two teams including, what kinds of courses should be included in the ALS Program? Should the Program focus only on courses that could address the fundamentals of Notarial practice, as prescribed in the profession’s scope of practice, or should the Program push beyond, to stretch the minds of the students? (Enter, the Philosophy of Law course.) Perhaps courses should be developed in contemplation of an expanded scope of practice for Notaries in the not-too-distant future and in support of the Provincial Government’s plan to improve access to justice for British Columbians? The MA-ALS Program was always viewed as work in progress rather than an end game. Future work has to be undertaken in the synchronization of the SFU education component with the Notaries’ professional training program. The content of the MA-ALS courses is under continuous review and there is considerable interest in offering advanced courses in key and/or new areas of practice that could be sufficient in number and popularity to warrant the creation of a new Graduate Certificate in Applied Legal Studies. In addition, we need to know more about our graduate body. What, for example, are the indicators of success both in the educational component and, later, in practice? They are important and researchable questions; the answers will inform ALS Program policy and practice for some time to come. s

Essential Education on Current Mortgage Issues

Learn from national industry experts through our diverse, on-demand library of courses.

Professor Robert Gordon is Chair of the Applied Legal Studies Program Management Committee, Simon Fraser University (Surrey). Volume 30 Number 1 Spring 2021

The Scrivener | www.bcnotaryassociation.ca

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THE EDUCATION OF BC NOTARIES

TECH & ETHICS

Educational Shifts in the SFU MA-ALS for Notaries John Whatley, PhD

n terms of its educational design, the MA-ALS Program for Notaries has become a model of the successful use of technology to deliver an applied graduate program. In the Spring of 2021, it is now 13.5 years old and, through the COVID-19 lockdown, the Program continues to enroll and graduate 25 to 30 students per cohort. This success has certainly been the result of the oversight of the SFU School of Criminology and the BC Society of Notaries, plus the dedication of its faculty. It is also the result of exceptional technological management and design. Much time has been spent on how to make an excellent applied MA work remotely. The changing technology and its interwoven changes in the ethics of remote education make an interesting narrative in their own right. Tech The Program’s technological base was ready-made for the COVID-19 lockdown. And it allows depth and highly flexible access to a university graduate education for remote students from all over the province and across its diverse ethnicities, indigeneities, genders, abilities, and geographies. That flexibility is the strength of the Program and shows on both the tech side and the ethics side.

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The SFU Centre for Educational Excellence (CEE) runs the tech side for the MA-ALS. Its stated mission is “to collaborate with SFU’s learning and teaching community to inspire and support innovative, inclusive, and reflective teaching approaches that create engaging learning experiences for students.” Two values are inscribed in the mission statement. CEE is dedicated to using technologies for inclusivity, fair enough. But that singular word “inclusivity” has a double connotation. First, it entails a specific reference to an expanding range of technology and second, it is part of a specific educational goal. Let’s Look Further at the Diversity of the Tech Side. The remote palette has been widely increased to include most of the kinds of tech now available, including the latest version of the Canvas Learning Management System plus the real-time collaborative tools, Black Board Collaborate Ultra, and now Enterprise level Zoom. Together, they provide a platform that balances synchronous and asynchronous teaching and learning in new ways. Lectures and seminars are beginning to become high-techinformed with instantaneous links to libraries, websites, video, graphics, remote-student desktops, news, and the sharing of all media with and between students, on multiplatforms and with a worldwide reach. BC Notaries Association

And yes, they are supplemented by text-based discussion groups and grade books that update percentages automatically. But the interesting change, the vital innovation, is the use of lectures and seminar style discussion in real time. In its current iteration, I’m not sure if we yet understand the revolutionary nature of that change. The breakthrough comes not from the teaching side but from the other side of the equation. The COVID-19 lockdown and the switch to home-based work and offices has dramatically increased the technical capabilities of university students. Students have become very good at real-time tech in the university “classroom.” I’ve enclosed the noun in quotation marks because the nature of that “room” is changing. Students now expect their own tech sophistication to be reflected in online teaching and its approaches and increasingly press for more use of their media—from cell phone skills to Twitch, Twitter, TikTok, What’s App, Instagram, Youtube, Snapchat, Facebook, and video gaming. We are not yet at the point where a multimedia Youtube clip has become the equivalent of a text-based academic research paper, but we are getting close. That is, with real-time tech, that screen-full of 25+ student presences plus an instructor has become the new in-person, face-toVolume 30 Number 1 Spring 2021

face classroom. So much so, we are at the point where any felt difference between face-to-face and remote learning is being erased. The new tech of seminar participation is having deep changes on how we teach; • where everyone has a chance to participate, share, and comment; • where subtle facial expressions and gestures, close-up tonalities of voice and eye movement are immediate and available; • where everyone can, from a wide diversity of home contexts, reach into the discussion and the building of knowledge. After about 1.5 lockdown years, we have adapted; that type of remote teaching and learning (or a hybrid variant) will become the new norm. Tech-based teaching and learning has far too many advantages to be left behind after the COVID-19 pandemic is surmounted. The technology allows for much more individualistic design and finetuned inclusive and sensitive teaching within a now widely diverse classroom. Diversity The propulsion by tech has naturally turned into a vision of a more diverse student base. Take for instance the mandate of the SFU Applied Legal Studies Research Group—the research arm of the MA-ALS at SFU. For that group, “…the applied legal studies approach recognizes the interdisciplinary nature of law in the social world (‘law in action’ as opposed to ‘law on the books’), in which laws of different kinds are deeply intertwined with one another and with different forms of social practice.” 1 In the MA-ALS, that insight is being coupled with the new technologies such that the various inequalities of the past, all exclusions of ethnicity, gender, indigeneity, ableness, sexuality, among others are now in sight of being rectified and Notaries will perform their work in a world that reaches, from and to, every segment of society. Based on the newer model, BC Notaries will be trained as before in drawing up viable contracts, Wills, mortgages, and witnessing documents, but they are participating in and being trained in sophisticated skills of inclusivity and are becoming adept in the new tech that allows those skills. In the new 2021 vision of the MA-ALS, the marriage of tech and diversity will make for social change (active law vs. book law). 1 S FU School of Criminology, Applied Legal Studies Program. http://www.sfu.ca/criminology/appliedlegalstudies/applied-legalstudies-research-group.html) accessed April 2, 2021

Volume 30 Number 1 Spring 2021

A candidate, from all the diverse groups, having completed the MA and the provincial exams, will be entering a career on an equal footing with other professionals at all levels and be able to act across all the cultural divides, easily at home in BC’s diversity— adept professionals negotiating an increasingly complex and diverse cultural landscape. Fintech, 5G, NFTs This vision of tech-based diversity is catching. A recent article in The Economist pointed to a potentially radical shift in the technical delivery of payments and financial transactions worldwide. “Thanks to the pandemic, there has been a surge in payments online and experimentation by consumers with new services provided by digital payments firms.” 2 We are, according to the article, on the verge of making financial services available to everyone, down to the poorest households. And this redistribution will be reliant on financial technologies like digital wallets that can process payments in a few clicks, taps, or by scanning a QR code. The blockchain technologies, along with the wider pipe allowed by 5G, will mean near-instant and cheap money transfers or credit assessment, access to past contracts, the setting up and resolving of complex mortgage chains, instant relevant data on clients, and most other Notarial transactions. We will know the change is upon us when we begin to deal with NFTs—nonfungible tokens—as the base for proof of a “written Will.” Speed and inclusivity will be the new norm. Creative, informed, highly diverse, technically adept, energized teaching and learning will make the MA-ALS a continued success. We are, we hope, through this Program helping change the image of the Notaries in BC to reflect their diversity, dedication, and the difficulties of the work they perform—they can now be considered members of a respected profession. s John Whatley is an Associate Member School of Criminology & Dept. of English (retired); Program Director, SFU Centre for Online and Distance Education (retired); Instructor, Department of English; Managing Editor, Simon Fraser University Publications BA (Chapman College, California); MA, PhD (Simon Fraser University). He currently instructs the Writing Guidelines seminars for the MA-ALS and occasionally teaches courses in English at SFU and Langara College.

2 “Fintech comes to America, at last,” The Economist March 27, 2021, p. 10–11

The Scrivener | www.bcnotaryassociation.ca

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THE EDUCATION OF BC NOTARIES

TEACHING IN THE SFU MA-ALS PROGRAM

“Nine Years Before the Mast” Ron Usher

On the classroom wall in the beginning lectures, I typically put “the Oath of Office” of a BC Notary Public. (We did have in-person lectures then.) I wanted students to “begin with the end in mind” and appreciate that the point of the courses was to enable them to take the swearing of the Oath with confidence. “I do swear that I will not make or attest any act, contract, or instrument in which I know there is violence or fraud, and in all things I will act uprightly and justly in the office of a Notary Public.”

“I do swear that I will not make or attest any act, contract, or instrument in which I know there is violence or fraud, and in all things I will act uprightly and justly in the office of a Notary Public.” Bermuda and Afghanistan. A few years in, I started inviting students to attend in person at The Society of Notaries Public offices in downtown Vancouver if they wished. Even when just a few—or even one— attended, it seemed to improve the process for everyone. Along the way there were a number of very memorable classes. We did “walkabouts” in Gastown, bringing a level of reality to complex

Sometimes it felt like each class was prompted by the front page of the newspapers. Dramatic changes in the real estate market drove legislation implementing new taxes, concerns about affordability, and the need to be ever more careful about money laundering and fraud.

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Woodward’s Project

Air Space Strata Plans and titles that became what is known as the Woodward’s Project. Once during ALS 612 sessions at SFU downtown, as a group we attended a “free” real estate investment seminar. The story was told in a Scrivener article (Fall 2016, page 22) and reported in a Globe and Mail story by Mike Hager. https:// tgam.ca/2P2BOAG https://www. theglobeandmail.com/news/britishcolumbia/bc-real-estate-seminarsprey-on-house-hunters-promiseinsider-tips-lawyer/article30182672/ )

Throughout my time teaching, there were important developments in the laws that the students needed to learn in preparation for becoming Notaries in practice.

Most classes were primarily online, with students as far afield as

Photo: Daniel Usher Photography, Vancouver

n December 2020, I finished 9 years of teaching in the SFU MA-ALS degree Program. It was a remarkable privilege to teach aspiring Notaries Public as they worked diligently on the courses.

Cropped image from Woodward’s Project Strata Plan

BC Notaries Association

It was very important for the students to experience a “Trump University” style real estate con for themselves so they could see how easy it is to use real estate dreams as the basis for fraud. Volume 30 Number 1 Spring 2021

We didn’t expect a pandemic. My illustration for learning about “encroachment.” I did a lot with these playhouses!

I came to see that the learning of the law necessary for the professional practice of a BC Notary Public was like learning a foreign language. The students needed to master a complex new vocabulary so they could make sense of the array of legal documents and information they needed to understand so they would be able to competently “inform, explain, and advise” their future clients (Salomon v. MatteThompson, 2019 SCC 14). They needed to learn the legal meaning of terms such as equity, escheat, easement, estoppel, and estate, to list just a few terms from the “E” section of the indexes in the thick textbooks used in the SFU courses. Duhaime’s Encyclopedia of Law http://www.duhaime.org/

Neither did the animals.

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Where possible, I sought to use actual examples of title searches, listed documents, and plans along with Court cases to bring life to such matters as rights of way, covenants, and an array of charges that constrain or expand the ownership rights of property purchasers. It has been very gratifying to see the students from my classes become successful Notaries in communities all around the Province. The graduates continue to be “curious, not furious” as they use the skills and attitudes learned in the MA-ALS Program to assist their clients in safely completing what are often the most significant legal transactions of the clients’ lifetimes. s Ron Usher is General Counsel and a Practice Advisor for The Society of Notaries Public of BC. Volume 30 Number 1 Spring 2021

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COVER STORY

Greetings from Simon Fraser University and the Master of Arts in Applied Legal Studies Dr. Margaret I. Hall, LLB, LLM, PhD Professor, Simon Fraser University (School of Criminology), Society of Notaries Public of BC Chair in Applied Legal Studies and Director of the Master of Arts in Applied Legal Studies (MA-ALS) Graduate Program Dr. Hall’s current research interests include law and aging, mental capacity and undue influence, legal responses to vulnerability, MAiD, and systemic theories of liability in tort law. Dr. Hall is the author of numerous academic publications, including (as a co-author) Canadian Tort Law. Prior to joining SFU in Fall 2019, Dr. Hall was an Associate Professor in the Faculty of Law at Thompson Rivers University (as a founding member of that faculty) and an Assistant Professor in the UBC Faculty of Law. Dr. Hall has also worked in law reform and was the first Director of the Canadian Centre of Elder Law Studies. Dr. Hall is an Adjunct Professor at the Australian Centre for Health Law Research in the Faculty of Law at the Queensland University of Technology (Brisbane, Australia) and a Research Affiliate at the Centre for Research on Personhood in Dementia (University of British Columbia).

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Dr. Margaret Hall

t is my great pleasure to have been invited to participate in this special issue of The Scrivener on The Education of BC Notaries. I would like to take this opportunity to provide an overview of the Program—our objectives, our approach to teaching students about the law, and our courses— and also provide a few words about the areas of law that I teach in the Program. Many readers will be familiar with (and some will be graduates of) the MA-ALS Program, now in its 13th year. Graduation from the Program is one pre-requisite for admittance into The Society of Notaries Public. Students in the Program take nine courses over 16 months including • Contracts, Property, and Personal Planning (advance planning instruments and Wills and estates); • Selected Topics in Applied Legal Studies (including business organizations, agency, tax, builders liens, and personal property security); • Legal Research and Writing; • Legal Philosophy; • Topics in Legal Practice; and • a course on Canadian Law and Legal institutions. The latter course is designed to give students from diverse educational and professional backgrounds essential foundational knowledge about the law and about the Canadian legal system; unlike Quebec’s Master’s Degree in Notarial Law (available only to

BC Notaries Association

Volume 30 Number 1 Spring 2021

students who have completed a law degree), the MA-ALS Program is available to students with a Bachelor’s Degree in any discipline. The diverse experiences and backgrounds that our students bring to the Program are, in my opinion, one of its great strengths. The objective of the Applied Legal Studies Program is to ensure that students know and understand those areas of noncontentious law relevant to BC Notary practice, and understand how to apply the law to the client’s situation to achieve the client’s objectives. That is the “applied” in applied legal studies, a client-centred approach to learning law. As an expert legal professional, the BC Notary must also be skilled in explaining legal concepts, alternatives, and outcomes clearly and effectively to clients. The ability to do that depends first and foremost on the Notary’s complete and thorough knowledge and understanding of the law in question, together with excellent interpersonal skills—both listening and communicating. I describe that aspect of the Notary’s role to my students as one of “legal translator,” where the client is relying on the expertise of the Notary to translate the client’s wants and needs (expressed in “everyday” language) into legal concepts, legal language, and legal instruments that will achieve the client’s objectives. The client will tell you, “I’m worried about who will look after my child if I die,” for example; the Notary • will know that the client needs a guardianship clause in her Will and will explain that concept to the client, together with the factors she must consider and the alternatives Volume 30 Number 1 Spring 2021

available to her, as set out in the law, • will listen carefully as the client describes her concerns and situation, • will identify the language that will meet the client’s objectives, and • will draft a clause that will meet those objectives.

As an expert legal professional, the BC Notary must also be skilled in explaining legal concepts, alternatives, and outcomes clearly and effectively to clients.

translator. Knowing the limits of Notary authority, and recognizing when those limits have been met, is also key; that is one of the very first concepts that students entering the Program are told, and one that is repeated throughout the Program. Developing a deep expertise within those limits is a process that begins with the MA-ALS Program, but by no means ends there. My role as Director of the Program includes the ongoing development of courses and course content and working with our fantastic instructors to ensure that we fulfill the objectives of the Program both in terms of what we teach and how we teach it.

Longtime MA-ALS instructor Ron Usher, recently retired from this role, used the acronym “IKEAD” to explain the Notary’s role to his students.

I also teach two courses in the Program: Legal Philosophy and Personal Planning (including Wills and Estates and incapacity planning).

• “I” is the responsibility to provide information to the client.

The Legal Philosophy course invites students to consider and discuss questions about the nature and purpose of law with which legal thinkers have grappled for centuries. The questions include the following.

• “K” is knowledge of the applicable law and the keeping of careful notes! • “E” is explaining legal alternatives and consequences to the client; • “A” is providing advice; • “D” refers to decision-making for the client—the decision is how to proceed. For the Notary, the decision is whether to proceed, refuse, or refer the client to a professional with different expertise. The legal education provided through the MA-ALS Program is designed with those aspects of the Notary’s role in mind. Learning substantive legal content is an essential first step; “K” (knowledge) is the foundation for all other aspects of IKEAD and the Notary’s role as legal The Scrivener | www.bcnotaryassociation.ca

• What is law for? • What, if any, is the connection between law and morality? • How and why do judges make decisions? • Why do we follow the law and why should we? • How and why do laws change? To understand how those questions inform law in Canada today, students examine a single case over the term from a number of different perspectives— answering the questions in different ways. The course gives students an opportunity to exercise their critical thinking “muscle” and take a step back to look at the bigger picture. TABLE OF CONTENTS

Two long-time instructors (Elle Lecoq and Ron Usher) have departed from the Program and several new faculty members have joined us: Dr. Helene Love (teaching ALS 601); Dr. Katie Sykes (teaching ALS 611); Dr. Robert Russo (teaching ALS 610). Dr. Love, Dr. Sykes, Dr. Russo, and our returning faculty Graeme Bowbrick and Todd McKendrick have each contributed articles to this issue of The Scrivener (including a brief biography). Two new teaching faculty, Andrea Fammartino and Anil Aggarwal, will be joining us in May 2021 to co-teach the Property II course (ALS 612).

Andrea Fammartino

Andrea Fammartino is an Associate in the Strata Property Group at Alexander Holburn Beaudin + Lang LLP, where she advises on all areas of strata law with

a focus on construction matters, strata governance, bylaws, collections, litigation, human rights, development, and Civil Resolution Tribunal matters. Andrea regularly appears before various Tribunals and all levels of Court in British Columbia. Andrea also practises Residential Tenancy Law (with experience representing both landlords and tenants before the Residential Tenancy Branch) and is a co-author of Chapter 24 (Ethics and Professional Responsibility for Strata Lawyers) of the British Columbia Strata Property Practice Manual. Anil K. Aggarwal is an Associate in Alexander Holburn Beaudin + Lang LLP’s Strata Property Group where he advises on all areas Anil K. Aggarwal of strata law with a focus on strata governance, bylaw enforcement, collections, litigation,

human rights, privacy, employment and Civil Resolution Tribunal matters. Anil regularly appears before various Tribunals and all levels of Court in British Columbia. Anil also volunteers his time by sitting on various Tribunals as an adjudicator. Anil is a co-author of Chapter 13 (The Civil Resolution Tribunal) and Chapter 24 (Ethics and Professional Responsibility for Strata Lawyers) of the British Columbia Strata Property Practice Manual. Having taught in other programs, I can attest to the remarkable enthusiasm, curiosity, and real interest the MA-ALS students bring to the subject matter we study and that makes teaching in the Program a real joy. As Director of the Program, I am committed to matching our students’ enthusiasm for learning and to making the MA-ALS Program the very best that it can be! s

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BC Notaries Association

Volume 30 Number 1 Spring 2021

LEGAL e-DOCUMENTS Dr. Margaret Hall

LEGAL PHILOSOPHY ALS 603 | PERSONAL PLANNING ALS 615

Personal Planning Law and e-Wills

he Personal Planning course covers a key area of Notary practice: The law relating to Wills and advance planning (Representation Agreements, Powers of Attorney, and Advance Directives). In addition to learning the law applying in that area, students are introduced to the process of constructing legal instruments that will achieve their client’s objectives. Personal Planning has been and continues to be a very dynamic area of the law in British Columbia, making it an exciting but also challenging area of practice. There is a lot of law in that area and changes to that law are ongoing. Legislation enabling electronic or “e-Wills” is one example of recent changes in the Personal Planning area. Interest in legislation that would enable e-Wills long predates COVID, but the pandemic created a new sense of urgency as the increased risk of serious illness turned people’s minds to Will-making (and also to advance planning) while, at the same time, restrictions were placed on in-person meetings. In May 2020, the British Columbia Legislature passed an emergency order enabling electronic witnessing of Wills; in August, Volume 30 Number 1 Spring 2021

legislation that would amend WESA to enable e-Wills was passed. The legislation enables the requirement of “presence” (as where the Will-maker and the witnesses must be in the “presence” of each other) to be met by “electronic presence,” which is defined in the legislation as “circumstances in which two or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location.”

In May 2020, the British Columbia Legislature passed an emergency order enabling electronic witnessing of Wills; in August, legislation that would amend WESA to enable e-Wills was passed. Where a signature is required, an electronic signature will be considered sufficient. Those amendments have been brought into force and are now part of WESA—Wills, Estates and Succession Act—other parts of the amending legislation have yet to be brought into force. A key question for those interested in the development of e-Wills has been whether a new The Scrivener | www.bcnotaryassociation.ca

regime should be adopted for e-Wills (potentially including an “E-Wills Act”) that would differ in important respects from the law pertaining to traditional Wills. The Uniform Law Conference of Canada (ULCC) Committee on E-Wills (of which I am part) has considered that question in relation to developing model legislation that could then be adopted, with modifications as desired, by the provinces; (the BC legislation has followed the ULCC recommendations in the August 2020 WESA Amendment legislation). The ULCC Committee concluded that the rules applying to Wills generally should apply to e-Wills with modifications as needed (as opposed to a new and separate regime). The requirements of “presence” and signatures would apply to e-Wills (as to traditional Wills), for example, but the definition of both now simply incorporates their electronic versions (with no new rules requiring additional safeguards). It has been suggested that special rules should be put in place to ensure the mental capacity of people making e-Wills, but the ULCC Committee ultimately rejected that suggestion on the basis that e-Will-makers were no more likely to be incapable than traditional Will-makers (and that the same standards for determining capacity would apply). TABLE OF CONTENTS

The suggestion that e-Wills should be made only with the assistance of a Notary or lawyer (as required in the May 2020 Emergency Order) was rejected by the ULCC Committee as an unnecessary barrier to Willmaking, and one that would mark a significant break with centuries of allowing testators to make their own Wills. Again, the ULCC Committee concluded that a “homemade” e-Will was no more likely to be suspect than a homemade traditional Will, and the same safeguard would apply; in either case, the homemade Will would be more vulnerable to challenge than the Will made with professional assistance. The ULCC Committee identified the law relating to alterations made to Wills (requiring certain formalities for those alterations to be valid) as one area where the nature of e-Wills did require a substantively different rule. Those formal requirements simply made no sense in relation to e-Wills. Therefore, an alteration to an existing e-Will is not possible; those wishing to alter an e-Will must make a new Will. This approach has been adopted in BC’s WESA amendment legislation. A second area where the nature of the e-Will creates special issues is revocation—is an e-Will revoked by deleting it? The traditional rule of revocation applies to the “original Will”—I can revoke my original paper Will by physically destroying it, for example, and my revocation is successful (even if copies remain). How can that rule apply to e-Wills, if at all? The approach decided on by the ULCC Committee (and incorporated in the BC legislation) is to include provisions addressing the special nature of e-Wills together with traditional rule relating to revocation as follows:

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• A Will may be revoked by the Will-maker, or a person in the presence of the Will-maker and by the Will-maker’s direction, deleting one or more electronic versions of the Will or of part of the Will with the intention of revoking it; • A Will may be revoked by the Will-maker, or a person in the presence of the Will-maker and by the Will-maker’s direction, burning, tearing, or destroying all or part of a paper copy of the Will in some manner, in the presence of a witness, with the intention of revoking all or part of the Will; • A will may be revoked by another Will made by the Will-maker in accordance with this Act; • A Will may be revoked by a written declaration of the Will-maker that revokes all or part of a Will made in accordance with section 37 (that may be made in electronic form and signed with an electronic signature); • A Will may be revoked by any other act of the Will-maker, or another person in the presence of the Will-maker and by the Will-maker’s direction, if the Court determines under section 58 [Court order curing deficiencies] that • (i) the consequence of the act of the Will-maker or the other person is apparent, and • (ii) the act was done with the intent of the Will-maker to revoke the Will in whole or in part. • For certainty, an inadvertent deletion of one or more electronic versions of a Will or part of a Will is not evidence of an intention to revoke the Will. BC Notaries Association

The potential for inadvertent (or more sinister) deletion, and what may be the difficulty in establishing intent in individual circumstance, will be something to watch in the coming years as the legislation is put into practice. Given the new-ness of this legislation, clients may not be aware that e-Wills are now an available option. Informing clients of that option where circumstances indicate it could be useful to them is both a valuable service to the client and ensures that practices relating to the use of e-Wills continue to develop. New law is of no use unless it is used. Because e-Wills are new, clients are likely to have many questions about them and look to the Notary’s expertise for answers; for that reason client-centred practice in the area of Wills (following the “IKEAD” model) now requires a thorough knowledge of e-Wills. As the use of those instruments becomes more common, careful attention to the development of best practice will also be essential. This is an exciting opportunity to be at the forefront of providing value-added service to clients in this growth area. In the future, look for the development of other e-instruments incorporating similar rules and best practices: e-Representation Agreements; e-Powers of Attorney; and e-Advance Directives It has truly been my privilege to serve as Director of the Program over this past year-anda-half. The emergence of COVID during this time has certainly created challenges, but also new opportunities for innovation and learning (as the e-Wills legislation discussed above demonstrates). The year 2020/2021 has also seen changes to the ALS teaching faculty. s Volume 30 Number 1 Spring 2021

THE EDUCATION OF BC NOTARIES

APPLIED LEGAL STUDIES 601

Advanced Topics in Canadian Law and the Canadian Legal System Helene Love, SJD, is a lecturer at Simon Fraser University’s School of Criminology. Prior to joining Simon Fraser University, Helene completed her LLB and LLM at the University of British Columbia and her SJD at the University of Toronto. She worked as a litigator at Stikeman Elliott LLP, then in administrative and program development roles at the University of British Columbia Faculty of Law. She has published her research on evidence, ageism, and the criminal justice system in a number of peerreviewed journals including the International Journal of Evidence and Proof, the Canadian Bar Review, and the Canadian Criminal Law Review. The Master of Arts Program (MA-ALS) in Applied Legal Studies: A Journey Worth Taking

hen describing the pursuit of any professional designation such as being a Notary, people often use the analogy of embarking on a journey. Volume 30 Number 1 Spring 2021

You will hear someone refer to the “road to becoming a Notary” and the “steps you have to take.” The MA in Applied Legal Studies (ALS) Program at Simon Fraser University (SFU) is an important part of the journey. The 16-month Master of Arts Program, where students interested in becoming BC Notaries can engage in rigorous course work, introduces foundational concepts about Canadian law and legal systems.

Think of ALS 601 as the gas station where you fill up the car, grab a map, pick up snacks and beverages, and generally make sure you have everything you need to survive the trip. The course I teach—Advanced Topics in Canadian Law and the Canadian Legal System (ALS 601)— is that first stop on the road trip. Think of ALS 601 as the gas station where you fill up the car, grab a map, pick up snacks and beverages, and generally make sure you have everything you need to survive the trip. Although it is just the first stop on a journey, it is an important one because it is easy to get into trouble on the road ahead if you have not prepared properly. ALS 601 is offered on an intensive basis at the very beginning The Scrivener | www.bcnotaryassociation.ca

Helene Love

of the Program. The advantage of offering the course at the outset is that it allows students to obtain systematic knowledge of the workings of Canadian law and the Canadian legal system before proceeding to more specialized courses in the rest of the Program. In addition, having the course offered on an intensive basis gives students the opportunity to get to know each other and develop a culture of collegiality since we see each other every day (before COVID). Like the pumps that fill up your car with fuel, the first part of ALS 601 fills students with the fundamental information they need about Canadian law and legal institutions that will help them understand more advanced topics such as property and estate law, later on in the Program. We start with a comprehensive discussion of the various principles and schools of jurisprudence as well as approaches to the study of law. ALS 601 then introduces the essential characteristics of the Canadian legal system that are anchored in a contextual exploration of their historical roots and origins in constitutional documents. This discussion includes a module on Indigenous law so students understand how Indigenous legal orders operate alongside colonial laws and legal institutions in Canada’s pluralist legal system. TABLE OF CONTENTS

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Students in ALS 601 then learn about different dispute resolution systems, the structure of Canadian Courts, and the roles and responsibilities of members of the legal profession. To understand the structural aspects of legal institutions in Canada, students learn about key common law concepts such as the nature of legal reasoning, and the doctrines of precedent and stare decicis, as well as the rules and principles of statutory interpretation. Each of the concepts is critical to understanding how the law works in practice. Once the students’ “legal car” is fueled with the foundational concepts, ALS 601 students are ready to explore other areas of the law. The second part of ALS 601 makes some early stops along the route that allow students to get an overview of several substantive topics that address everyday legal problems including constitutional law, administrative law, family law, tort law, and criminal law. Of course, the landscape is always changing, so ALS 601 is updated on an ongoing basis to reflect the evolving legal realities within which BC Notaries practice. Like everything else in our lives, the 2020 academic year was dominated by the COVID-19 pandemic. I used the pandemic as a case study throughout the course to provide opportunities to apply the concepts we learn in multiple areas. For example, when learning about different approaches to the role and the study of law, the class was asked how different theorists would consider the municipal regulations restricting social gatherings. Figuring out what it means to avoid nonessential travel was a practical way to apply rules of statutory interpretation. To understand federalism, we learned about how the different levels of government create rules within their BC Notaries Association

powers to deal with the spread of COVID-19. Using real-world issues in ALS 601, such as COVID-19, highlights the practical implications of the topics we cover in class. Another significant development in the law that required updating the materials in ALS 601 was the case R. v. Sullivan and Chan (2020 ONCA 333) that became part of the criminal law module in the course. In Sullivan and Chan, the Ontario Court of Appeal considered the constitutionality of section 33.1 of the Criminal Code—that bars the availability of the defence of self-induced intoxication in violent crimes involving an assault or any other interference with the bodily integrity of another person.

I used the pandemic as a case study throughout the course to provide opportunities to apply the concepts we learn in multiple areas. In ALS 601, the case sparked interesting debates about the core question of when someone should be held to be criminally responsible for his or her actions as well as the potentially gendered implications of allowing self-induced intoxication to be a defence in violent crimes. By discussing Sullivan and Chan in ALS 601, we were able to appreciate how constitutional dialogue works in practice and at the same time, dispel some of the misinformation the news headlines suggested about the case. Preparation is the first step on any successful journey. ALS 601 is the course that provides students with the foundational knowledge they will need to navigate the long road to becoming a member of The Society of Notaries Public in British Columbia. s Volume 30 Number 1 Spring 2021

THE EDUCATION OF BC NOTARIES

APPLIED LEGAL STUDIES 602

Legal Research and Writing APPLIED LEGAL STUDIES 620

Graeme Bowbrick

Selected Topics in Applied Legal Studies Graeme Bowbrick, QC, BA, LLB, LLM, is a visiting professor at SFU teaching in the MA-ALS Program. He occasionally teaches undergraduate courses in Criminology and Political Science at SFU and is a regular faculty member in the Criminology and Legal Studies department at Douglas College. A lawyer with experience in both private and public sector practice, from 1996–2001 Graeme was a member of the Legislative Assembly of British Columbia and spent time as a Cabinet Minister, holding the portfolios of Minister of Advanced Education (2001) and Attorney General (2000–2001).

Sometimes a criticism leveled at postsecondary legal education is that it is too “academic” and not “applied” or “practical” enough. I’ve always been of the view that can be an artificial distinction: Law is both an academic and an applied subject. That is certainly true of the MA-ALS Legal Research and Writing course.

Applied Legal Studies 602: Legal Research and Writing

When students begin the course, I always make the point about the applied nature of legal research and writing and that the course is, in effect, really about legal problem-solving. We then begin the course with a hypothetical problem and briefly run through the steps that are necessary—in particular the legal research—to solve the problem. I explain that by the end of the course, students will be able to do that for themselves; for the remainder of the term, we essentially break down the legal problem-solving process into parts that we master one after another.

was approached about developing this course back in 2006 and have taught it since the MA-ALS Program’s inception in 2008.

We look at legislation. Rather than simply leap straight into the tools we can use to research legislation, we first consider, broadly, what legislation is and how it is made. We look at the political and legislative processes

Volume 30 Number 1 Spring 2021

The Scrivener | www.bcnotaryassociation.ca

in a British parliamentary system of government, with specific emphasis on British Columbia. The idea is that when we research legislation, we can have a much greater insight into what we find (statutes, regulations) if we understand how the legislation came about—who made it (hence the consideration of the political process leading to the formation of the legislative and executive branches of government) and how it is made (hence the detailed consideration of exactly how the legislative process works). It is only after looking at the political and legislative processes, as a way to provide a better foundation for understanding legislation when we research it, that we then turn to the tools and approach to researching legislation. They include some excellent free resources, notably • BC laws (for BC legislation); • Justice Laws (for federal legislation) and CanLii; • as well as the main subscription resources of QuickLaw and LawSource. After completing our consideration of legislation, we move on to case law, beginning with TABLE OF CONTENTS

an overview of judicial decisionmaking (essentially an overview of legal reasoning). We examine the constituent parts of a typical judgment (facts, issues, law, decision, reasons, ratio), and we of course look at the basic elements of legal reasoning including precedent and stare decisis. Much as we looked at the political and legislative processes as a prelude to learning about the tools for researching legislation, we look at judicial decision-making as a prelude to learning about the tools for researching case law. When we turn our attention to actually researching case law, we look at all available tools: Court websites, QuickLaw, and LawSource. Unlike the case with researching legislation, I emphasize that a subscription-based tool like QuickLaw or LawSource can be indispensable to proper case law research. I also make the point that if students feel, when they are later practising as BC Notaries, that they only need to occasionally look up a case here or there, the free services will suit them just fine. At this point in the course, we turn our attention to legal writing. While we talk about “legal writing,” I emphasize that really, good writing is good writing—whatever the context. Legal writing is just writing in a legal context. So we look mainly at the basic elements of good writing: Clarity of thought, good planning and organization, dispensing with unnecessary jargon (and in particular legal jargon), brevity, and perhaps most important of all, attention to “the audience.” I emphasize that our writing should always be shaped by careful consideration of who will be reading our writing. Consequently, writing a quick email to another legal

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professional will obviously involve different considerations than sending a text message to a friend; drafting a Will is necessarily different than writing a letter to a client. The ultimate objective is that by the end of the course, students are able to pull together everything they’ve learned—the foundational knowledge about how legislation and case law are made (and the greater insight we then have when reading legislation and case law), the practical skill of using different tools to research legislation and case law, and the importance of good writing—and we solve a legal problem from start to finish. Students will be able to identify the important facts in a problem, formulate a strategy for researching and finding the relevant law, engage in a thorough analysis of the law reaching a correct legal conclusion, and convey their conclusion clearly in writing.

I emphasize that our writing should always be shaped by careful consideration of who will be reading our writing. Applied Legal Studies 620: Selected Topics in Applied Legal Studies I began teaching this course in 2014, taking over from the Notary Society’s own legal counsel Ron Usher. They were big shoes to fill, given Ron’s extensive knowledge of areas of notarial practice. This course is unique in the MA-ALS Program because of the wide range of topics it covers • the law of agency, • business organizations, • taxes on real property, • taxes on transfers, • personal property security law, BC Notaries Association

• builders liens, and • professional ethics and responsibility. By necessity, given that a typical academic term is only 13 weeks, we can devote only about 2 weeks to each topic. That begs the question, why would we have a course where we can offer only a basic overview of all those topics? The short answer is that while the MA-ALS Program was carefully crafted, in consultation with the Notary Society, to ensure it meets the needs of future Notaries; it isn’t possible to have full courses on every substantive area of law that a Notary may come across in his or her practice. Consequently, Applied Legal Studies 620 aims to ensure that, in addition to full-term courses in major areas of law arising in Notarial practice, there is also one course that at least provides students with some exposure to other relevant areas of law, as well. In essence, Applied Legal Studies 620 offers students “mini” courses in each of the five areas of law (agency, business organizations, taxes on real property and taxes on transfers, personal property security, and builders liens) with professional responsibility and ethics “woven” throughout the course. The objective, again, is not to have students become experts on each of the topics covered in the course, but to give them enough background on each that, once in practice, they will at least be able to recognize issues in those areas should they come across them. As an indication of how the MA-ALS Program seeks to produce wellrounded graduates, when graduates of the program do later recognize an issue in those areas of law, they should be able to draw upon the legal research skills learned in ALS 602 to assist them). Volume 30 Number 1 Spring 2021

Interestingly, relating back to the “academic” versus “applied” debate, this course is arguably the more “academic” of the two courses I teach in the MA-ALS Program. I say that in the sense that really this course involves a fairly traditional approach to postsecondary education; give students instruction in certain areas of knowledge and then test them to see how well they have learned the material. In that respect, while the substantive areas of law are all important and relevant to BC Notaries, it would appear there are no “practical” skills being taught. Students in ALS 620 do learn (or further refine) a very important skill—problem-solving. There are different ways to test students in a course like ALS 620. My approach is to use problemsolving exams (in law schools they are commonly called “fact-pattern” exams). The basic approach is to present students with a scenario and then ask questions that require students to apply the legal knowledge they have acquired in the course to answer the questions (or solve the legal problem). The emphasis on problemsolving skills is important for students in both the short- and long-term. In the short-term it helps to prepare them for exams they will have later in the Program (capstone exams) and after the Program (statutory exams). In the long-term, it helps to prepare them for practice because, after all, legal practice is all about assisting clients with their legal problems, however challenging (“What can we do to assist our elderly parent in the early stages of dementia?”) or routine (“How do I complete the purchase of my new home?”). Recent Developments When I was approached about writing this article, I was asked if I might highlight some recent Volume 30 Number 1 Spring 2021

developments relating to the legal material I teach. Applied Legal Studies 620, as a research and writing course, would at first glance not appear to lend itself to this because it doesn’t focus on specific substantive areas of law. I would, however, say that the quality and availability of legal research tools have changed markedly (and for the better) since I first taught the course in 2008. Of particular note is the change in the free resources (such as BC Laws and Justice Laws). A decade ago, a person could access provincial or federal legislation online but it would often be out of date (as much as 6 weeks or 2 months). Now, a person can use the free resources and find legislation updated as recently as a week ago. That means that good legislative research can now be done at no cost (with apologies to QuickLaw and LawSource representatives). The same is also largely true for researching case law. While the subscription services like QuickLaw and LawSource are markedly superior if you are doing in-depth case law research, a Notary in a typical practice likely needs only to quickly access a particular case he or she wishes to review and that can be done perfectly well using free resources such as the Court websites or CanLii. Those developments relating to legal research are good news for the financial bottom line of any legal practice. Regarding changes relating to the subjects I cover in Applied Legal Studies 620, with one general exception there haven’t been recent changes: The law of agency or personal property security, as examples, have remained quite constant. The general exception relates to real estate: Given the The Scrivener | www.bcnotaryassociation.ca

importance of housing as a social and political issue, we have seen different governments in BC make significant legislative changes in the past 5 or 6 years. Those legislative changes, as all BC Notaries will know, seem as though they have been constant. They have included • additional annual taxes on real property under the School Act; • additional annual taxes on real property under the Speculation and Vacancy Tax Act; • the introduction of differing tax rates on real property transfers under the Property Transfer Tax Act and related regulations (originally referred to as the “foreign-buyers tax”); and • a new (in 2016) exemption under the Property Transfer Tax Act for new housing. They are all in addition to routine annual changes in the threshold for the homeowner grant under the Home Owner Grant Act and related regulations. The challenge is to keep up with the changes. That is undoubtedly a challenge for practising Notaries and it’s a challenge for those of us teaching future Notaries as we try to ensure they are well-equipped to practise. Conclusion The SFU-Notary Society partnership in the education and training of Notaries is, I believe, a unique one that I hope has been beneficial to everyone who has gone through the Program. It has been my privilege to teach in the MA-ALS Program since its inception in 2008. I estimate I have now seen more than 300 prospective Notaries come through my classes over the years. I look forward to teaching many more in the years ahead. s TABLE OF CONTENTS

THE EDUCATION OF BC NOTARIES

APPLIED LEGAL STUDIES 610

Contracts Robert Russo

Dr. Russo obtained his LLB, LLM, and PhD degrees from the Allard School of Law. His research has been primarily in the area of labour/ employment and immigration law and he has published several articles in this field. He joined UBC as a part-time faculty member in 2017 and was appointed a full-time Faculty Lead Lecturer for the LLMCL program in 2018. He has subsequently guided the teaching for the Distance Learning and LLMCL programs, designing various online courses, as well as teaching in the first-year JD program. His prior experience includes 10 years serving as one of the Federal Government’s representatives at hearings held across Canada to resolve individual claims-related abuses committed at federally operated Indian Residential Schools. He has taught for the Continuing Legal Education Society, the Professional Legal Education Co-Operative Association.

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ALS 610 Contracts

he law of contracts underlies several areas of BC Notary practice. An understanding of contract law is also essential to the business of running a practice—hiring staff, leasing premises, and so on. The course on Contracts taught in the Spring term introduces students to fundamental principles of Canadian contract law together with the practical application of those principles in the commercial environment. Students learn the essential elements of what makes an enforceable contract such as offer and acceptance, certainty of terms, form and consideration, as well as those things that may well make a contract unenforceable, such as misrepresentation, frustration, duress, and privity issues. Principles of contractual interpretation and contractual elements such as warranties, representations, conditions, and remedies for breach of contract are also examined. Students also have the opportunity through the course to the foundational legal skills learned in the Fall term. BC Notaries Association

The law of contract is primarily made up of common law rules and doctrines as opposed to legislation. While the basic principles of contract law change relatively slowly, social changes and developments can have a significant impact on the way those principles are interpreted and applied, together with their impact on individuals and businesses. The COVID crisis has provided a dramatic example of this process as the problem of contract frustration (one party being unable to carry out his or her financial obligations) has become increasingly prevalent. The doctrine of frustration itself is not new, but Canadian Courts are only now beginning to grapple with the effects of the pandemic on contractual obligations. How do Courts deal with contracts possibly frustrated by COVID-19? The term force majeure is generally defined as an unexpected and disruptive event that may operate to excuse a party from a contract. When referring to force majeure, it can include both the common law right to invoke force majeure as a defence against nonperformance or a contractual clause or a term that is included in contracts to relieve performance of contractual parties’ obligations under certain circumstances arising that are beyond their control. Volume 30 Number 1 Spring 2021

Generally, those circumstances can include natural events, certain human actions or other unavoidable catastrophes that render the normal obligation of contractual performance impossible. The “common thread” of those events is “the unexpected, something beyond reasonable human foresight and skill.” (Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp & Paper Co. [1976] 1 S.C.R. 580) When those events occur, force majeure clauses generally operate to discharge a contracting party from contractual obligations. In the Alberta Court of Appeal decision Atcor Ltd. v. Continental Energy Marketing (1996 CarswellAlta 642), Kerans JA wrote that a force majeure clause should be drafted to “protect the parties from events outside normal business risk” adding that the clause addresses three questions. • How broad should be the definition of triggering events? • What impact must those events have on the party who invokes the clause? • What effect should invocation have on the contractual obligation? Depending on how a force majeure clause is drafted, a Court may find the COVID-19 pandemic to be a force majeure event giving rise to relief from parties’ contractual obligations. Given the recentness of the pandemic and its ongoing effect on the judiciary, Canadian Courts have only recently begun to consider the possible application of a force majeure clause within the context of COVID-19. A search of Canadian decisions reveals few cases that have dealt with COVID-19 as a possible force majeure event in the common law provinces. The cases that have arisen deal mostly with airline passengers, which have their own Volume 30 Number 1 Spring 2021

complex framework, and landlord/ tenant agreements. Although landlord/tenant relations also have provincial legislation affecting agreements, the application of force majeure to residency agreements is a bit more easily analyzed. Two cases in the past year show that while provincial “lockdowns” enacted during COVID-19 have generally been accepted as force majeure events, there is still the need to prove real rather than speculative harm. The cases also turn on the specific drafting of a force majeure clause and interpretation of COVID-19 policy and other legislative objectives in the specific context.

tenant’s failure to pay rent was not consistent with legislative objectives of protecting small businesses in Ontario during the shutdown.

The Ontario cases are just the first ripples in an expected wave of litigation, however; it remains to be seen how those events will unfold.

Ultimately, the Court relied on the provincial eviction moratorium imposed by Ontario’s Chief Justice suspending most evictions of residents from homes pursuant to eviction orders. The Court cited the absence of evidence of irreparable harm to the landlord; there was no evidence that the sale would not close (the purchaser had granted given past extensions). Characterizing both landlord and tenant as good-faith victims of events, the Court concluded that the tenant and family could not move out and “be put out in street.”

The Ontario COVID-19 lockdown and phased re-opening prevented many businesses from operating fully or at all from March to July 2020. In a recent Ontario Supreme Court case, a tenant operating a business from a landlord’s premises attempted to rely on a force majeure clause in the commercial lease. (Durham Sports Barn Inc. Bankruptcy Proposal, 2020 ONSC 5938) The force majeur clause excluded the landlord from obligation to provide the tenant with quiet enjoyment as a result of the shutdown but did not relieve the tenant from the obligation to pay rent during the shutdown. The Court found that Ontario legislation enacted during the shutdown aimed to ensure the survival of small businesses by focusing on preventing evictions by landlords, and not on suspending rent payments by tenants; the The Scrivener | www.bcnotaryassociation.ca

The relevant issue before the Ontario Supreme Court in Chalich v. Alhata (2020 ONSC 2569) was whether to order a sheriff to carry out a residential tenant’s eviction despite the provincial eviction moratorium. The tenant’s failure to move was directly related to the COVID-19 pandemic. The landlord was seeking the eviction because he was required to deliver vacant possession of the condo unit occupied by the tenant as a condition of an executed agreement of purchase and sale.

Those cases provide some hints as to how force majeure events may be interpreted by British Columbia Courts during the COVID-19 pandemic. The Ontario cases are just the first ripples in an expected wave of litigation, however; it remains to be seen how those events will unfold. The legal principles that we discuss in ALS 610 will equip students to understand how those and other developments in the law of contracts may affect the interests of their clients and their own practices. s TABLE OF CONTENTS

THE EDUCATION OF BC NOTARIES

APPLIED LEGAL STUDIES 611

Real Property I Katie Sykes

Katie Sykes has been a member of the Faculty of Law at Thompson Rivers University in Kamloops, British Columbia, since 2013. At TRU, she has taught Property, Torts, Animals and the Law, Corporate Governance, International Trade Law, Lawyering in the TwentyFirst Century and Designing Legal Expert Systems. She has a JD from University of Toronto Faculty of Law, LLMs from both Harvard Law School and the Schulich School of Law at Dalhousie University in Halifax, Nova Scotia, and a PhD from the Schulich School of Law. Before her academic career she was a lawyer at Cleary Gottlieb Steen & Hamilton in New York.

n the Fall 2020 semester, I taught Real Property I in the Applied Legal Studies course for the first time. Real Property I is an introductory course on real property law. It gives students a solid grounding in the basic principles of Anglo-Canadian land law, including the foundational common law doctrines, the Land Titles Act, and the title registration system.

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It was a somewhat strange and disorienting time to start teaching a new course—as all of life was somewhat strange and disorienting in 2020. But I was greatly helped out by the fact that I inherited the course from Ron Usher, an outstanding educator and lawyer who had been teaching it for years. Ron handed the course over to me with a well-designed syllabus and extensive, excellent materials I could use. I was also very fortunate to be able to sit in on Ron’s course as a guest in the preceding Winter semester, so I had a pretty good idea what to expect.

I inherited the course from Ron Usher, an outstanding educator and lawyer who had been teaching it for years. And it turned out to be a quite an advantage to be teaching a course that was designed to be delivered mainly online, in a time when university teaching all around the world had to pivot to online on short notice. Although I missed out on the chance to meet my students in real life in the in-person days that usually start off the program, for the most part I was able to teach the course with minimal disruption and to follow the framework Ron had put in place. BC Notaries Association

Course Content Property law has ancient roots. In real property law, we still regularly deal with legal concepts that date back to the Norman Conquest of England in 1066, and even further, to Roman law. To understand the vocabulary and concepts they encounter in this area, students need to start with an introduction to property law’s historical origins, including the idea of an estate in land as the basic “unit” of land ownership. Those concepts can be pretty counterintuitive at first, but I found the students grasped them quickly and refined their understanding by asking thoughtful questions. We went on to cover the distinction between law and equity and the concept of a trust—the basic principles of the Torrens system of land title registration in British Columbia and nonpossessory rights in land like easements and covenants. The last third of the course covered leasehold rights in property, mortgages, and Aboriginal title. Evolving Design I made some adjustments to the course Ron had designed, for a few reasons—partly just to make the course my own, partly to coordinate with initiatives in other courses in the ALS Program under Dr. Hall’s leadership, and partly to take into account the unique Volume 30 Number 1 Spring 2021

circumstances we were in and the extra difficulties everyone was facing with pandemic life.

alive for the students in a more meaningful way than just reading about them.

One new component of the course design was the students’ first assignment: A memo summarizing the property law aspects of a recent case from the BC Court of Appeal, De Cotiis v. Hothi, 2019 BCCA 472. That is a case involving the sale of a house in Vancouver that was found to be held in a resulting trust. The students had to focus on the resulting trust analysis and how the Court decided who really owned the house.

A Major Policy Change: Land Ownership Transparency

The case also deals with issues of contract formation, agency, and the duties of real estate professionals. We planned that students would go back to it in other courses and examine the same factual situation through these other lenses. Our aim is to build some bridges between the different courses so that students gain a more integrated, holistic understanding of how legal problems cut across various areas of law. My Real Property students were very engaged with the trust analysis in this case. We had some lively class discussion about the way the defendants, the Hothi family, used complex legal structures that created ambiguity about who really owned their various real estate holdings. Another new initiative was a simulated negotiation that the students did in one of the class sessions. The scenario involved negotiation of a conservation covenant between a landowner and an environmental organization. The students did a fantastic job with this and I really enjoyed reading their reflection assignments afterward. Taking on the roles of the different parties and bargaining over their rights and responsibilities seemed to make covenants come Volume 30 Number 1 Spring 2021

During the semester, at the end of November, the Land Ownership Transparency Act came into force. The statute and its regulations bring new transparency to who truly owns real property in BC, by requiring beneficial interests to be recorded in a new Land Ownership Transparency Registry. That policy initiative was directly relevant to the concerns students had expressed when we discussed De Cotiis v. Hothi and the way trust structures can conceal who really controls and benefits from the ownership of real property. One thing I really enjoy about teaching the Applied Legal Studies students is the fact that many of them are working in the field concurrent with pursuing the degree. There were several students in the class who had prepared filings for the new Transparency Registry. It was enriching to combine their on-the-ground practical knowledge with the work we were doing on the legal concept of a trust and on how the doctrines are applied in the case law. My Experience Teaching this course for the first time was a wonderful experience. The students were warm, bright, and perceptive. I particularly appreciated their patience with interruptions from my old, deaf pug Charlie, whose favourite time for random barking coincided with the time I would be teaching the class online from my laptop. I know they will achieve wonderful things in their careers as Notaries and legal professionals. I’m really looking forward to meeting the next group of students in Fall 2021. s The Scrivener | www.bcnotaryassociation.ca

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THE EDUCATION OF BC NOTARIES

APPLIED LEGAL STUDIES 630

Topics in Professional Practice Todd McKendrick has been working with and educating BC Notaries Public for 20 years. He has taught in the MA-ALS Program from the beginning. Now a nonpractising lawyer, Todd keeps busy with a variety of part-time commitments. His education has been similarly varied: BA in History and Philosophy, JD, MBA, and M Ed. Todd also has a diploma in teaching English to speakers of other languages. ALS 630 Topics in Professional Practice

his is the final course of the MA-ALS Program. It serves as a bridge of sorts between the academic courses in the Program and the practice-oriented training Notaries receive from The Society of Notaries Public after graduation. A wide range of topics is covered in ALS 630. Students begin by considering what it means to be a professional and to practise professionally.

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Attention is also paid to the role of the Notary in society and in the professional organizations that regulate the practice. In all areas of the course, maintaining a responsible and ethical standard is in the forefront. The course continues with an introduction to understanding business concepts that will be necessary in creating and/ or maintaining a client-focused sustainable practice such as • how to determine a value proposition; • how to approach marketing, staffing, technology, risk management; and • how all those elements must be accounted for in strategically planning and keeping current a professional practice. Attention is also paid to the role of the Notary in society and in the professional organizations that regulate the practice. As the nature of professional practice, law, and business continue to evolve (consider the changes in technology and its effect on practice in the last 20 or even 10 years), students in particular are encouraged to adopt BC Notaries Association

Todd McKendrick

a flexible approach to continued learning and innovation. The course itself is delivered with a combination of lectures, projects, and self-assessments. Students read texts, articles, and cases and discuss issues arising from the readings. A significant team project must be completed that focuses the team’s attention on learning and explaining in detail one aspect of the overall subject matter. The intention behind the way the course is delivered is to introduce some students and reinforce others to the skills needed to function as a professional. Students work collaboratively in various group situations, manage their time and projects, and apply their learning to real world situations, all while continuously critically assessing their own and others’ work. For many students the course is an opportunity to get to know other members of their cohort on a deeper level and to begin building a network that will support them in the future. The course is a lot of work. At the end of the course, the hope is that students will continue an awareness of the tasks that lie ahead and how to begin planning for a successful and helpful career and life as a BC Notary Public. s Volume 30 Number 1 Spring 2021

THE EDUCATION OF BC NOTARIES

How the MA-ALS Degree Underpins a Successful BC Notary Practice

fter spending 20 years in the Notary profession as legal support staff for one of the biggest Notary firms in BC, I joined education Cohort 3 of the MA-ALS at SFU in September 2011. It had been 2 decades since I completed my Bachelor of Arts at UBC. It was exciting and terrifying to be re-entering the postsecondary setting—somewhat like studying to awaken a longforgotten language. Fast-forward 10 years: I am 8 years into running my very busy Notary practice that grows with each passing year. Many of my clients ask me how to become a BC Notary. They are surprised to learn that the BC Notary Education Program is 2 years of rigorous training consisting of a Master of Arts degree in Applied Legal Studies at SFU that runs concurrently with the BC Notary Practical Training Course delivered and administered by the BC Notary Society. Additionally, students must complete 105 hours of mandatory mentoring with an approved BC Notary and pass six very challenging statutory examinations.

Volume 30 Number 1 Spring 2021

Jackie Tait

…I have completed 6 years of postsecondary education… To anyone who says BC Notaries are not as educated as lawyers, I remind them I have completed 6 years of postsecondary education, including courses similar to those given in law school, some delivered by lawyers such as Tony Wilson, Todd McKendrick, George Cadman, QC, and Peter Ramsay, QC—experts in their fields with decades of knowledge and experience to share. BC Notaries are highly educated in their nonlitigious fields of practice and skillfully assist the public with a large majority of the province’s real estate conveyancing and estate planning needs. Topics covered include Canadian Law and the Canadian Legal System, Legal Research and Writing, Legal Philosophy, Contracts, Real Property, Personal Planning, and Selected Topics in Applied Legal Studies and Legal Practice. During my application process, I read the course curriculum descriptions with a mixture of anticipation and anxiety. Always a keen student, I find the opportunity to learn new things appealing but some of the content was intimidating. Legal Research? Legal Philosophy? The Scrivener | www.bcnotaryassociation.ca

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Margot R. Rutherford* Notary Public

A Member of The Society of Notaries Public of British Columbia *Denotes Professional Notarial Corporation

Tel: 250 338-6251

981 Fitzgerald Avenue, Courtenay, BC V9N 2R6 Fax: 250 338-5337 email: rutherfordmargot@shaw.ca

After 20 years as a conveyancer, I wondered what practical application the courses might have for me as a BC Notary; I worried I would struggle to grasp those topics. Together with my colleagues, many of whom have become close friends, I dove headlong into the Program. I found that all the courses were integral pieces of the MA-ALS Program. • I consistently use the legal research and writing skills to research and apply case law and legislation to issues that arise in my practice. • I frequently use the legal reasoning skills as I apply morals and ethics to practice decisions. • The solid foundation of legal principles learned in contracts, real property, and personal planning is used daily as I navigate the increasingly complex practice of a BC Notary.

WESA has made sweeping changes.

Trevor Todd is an old hat (and trusted expert) at estate litigation who believes the new law is a game-changer- for his business and for your inheritance. Call Trevor to get a jumpstart on the changes. He knows them inside and out. Plus he loves to listen and to talk- a lot.

The MA-ALS Program gave me the tools I needed, both legal and practical, to succeed in my profession. Often when I am wrestling with a difficult issue in a client’s file, I hear a “click” in my head when a piece of knowledge learned in the Program falls into place. The MA-ALS Program is “not for the faint of heart.” It demands much time, energy, and self-discipline. The help of my team of “study buddies” became my lifeline. In the early days of practice, we often had multiple email chains going— sharing knowledge and supporting one another as we navigated practice as new Notaries. To this day, 8 years into practice, we still rely on the “phonea-friend” tactic to help solve a knotty problem or share legal precedents. s Jackie Tait is a BC Notary who practises in Chilliwack, BC.

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BC Notaries Association

Volume 30 Number 1 Spring 2021

THE EDUCATION OF BC NOTARIES

Knowledge is Powerful . . . I Enjoy Sharing Mine

have served on the BC Notaries’ Board of Directors and was a member of the Education Committee. Over 20 years ago, I was a speaker at a Notary conference to share my knowledge of buying and selling small businesses, along with Notaries Roy Cammack and David Rowan. I have been teaching courses to Notary candidates ever since, including the annual Business course. Toastmasters was instrumental in helping me feel comfortable in front of an audience . . . knowing your material well always helps. About 2013, Notary Laurie Salvador asked if I would assist her and Lorne Mann in presenting a course on how to be an executor. Laurie did an amazing job developing that comprehensive course for Notaries. My dad El Fedewich had to take that course and write an exam to qualify for Notary insurance at age 75, but I did not mark his exam! I continue to teach the Executor course annually. When the Family Law Act changed, I chaired a panel of speakers at a Notary conference and was honoured in 2018 to be appointed as an Examiner for BC Notaries by the Province. I love the enthusiasm Notary candidates bring and their fresh perspectives. It reminds me to avoid legal jargon and not make assumptions about the Volume 30 Number 1 Spring 2021

Who Will See Your Ad in The Scrivener?

Trish Fedewich

participants’ knowledge when discussing legal matters. Dad mentored me and always used examples to make his points stick; I do that when I am teaching. My teaching has gone from using overhead projectors to hosting Zoom meetings. After my 25 years in Notary practice, there are more and more lessons to share.

Teaching keeps me abreast of changes to the law and ways of doing business. Last year I developed an Oral Wills exam for Notary candidates that I thought was important— estate planning has grown in complexity over the years. Students complete a mock Will interview with experienced Notaries Hilde Deprez, Janice Rutherford, Morrie Baillie, and me as Examiners. I have spoken at dozens of events over the years to educate the public about legal topics and continue to teach for The People’s Law School and pretty much anyone who invites me. Teaching keeps me abreast of changes to the law and ways of doing business. Knowledge is powerful and I enjoy sharing mine. When COVID-19 is not a concern, I will resume mentoring Notary candidates and legal assistants with pleasure. s BC Notary Trish Fedewich practises in Surrey (Cloverdale). The Scrivener | www.bcnotaryassociation.ca

BC Notaries Lawyers Land Surveyors of BC Real Estate Professionals Real Estate Boards and Associations Age-Friendly Designates MLAs and MPs in BC Life Insurance Brokers and Agents Accountants Managers of Financial Institutions Investment Management Agencies Provincial and Federal Court Judges Registrars Mayors Government Ministries Libraries: Public and Private, including Law Society, Legal Services, Education Facilities Chambers of Commerce BC Housing BC Assessment Ministry of Citizens’ Services: Real Property Division

Fall Advertising Space Deadline September 1, 2021 scrivener@bcnotaryassociation.ca www.bcnotaryassociation.ca TABLE OF CONTENTS

THE EDUCATION OF BC NOTARIES

Wills, Estates and Personal Planning Class Lorne Mann

ongratulations to the graduates of the 2021 Wills, Estates and Personal Planning class, held following the completion of the MA ALS Program. There were no failing marks in the class and some exceptionally good ones. That bodes well for the Notary profession!

By the time they get to this part of the education program, Notarial students impress and awe me with the depth of their understanding. They may still be struggling with precedents and technology, but they are beginning to understand that being a Notary is not just about copying drivers licences.

However cobbled together it felt, from my perspective the startup was a positive learning experience. and hosting on Zoom. We had about 2 days to set up our hosting accounts. To run the Zoom classes from home, I needed a better Internet connection, a webcam, a desk set-up with a reasonable background, and miscellaneous cables. I borrowed extra screens and a docking station from my Notary office. I focused on the slide screen and my wife Marianne sat next to me for the Zoom classes, running tandem on the student screen that was very useful when my system crashed.

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It was a dark and stormy week of Zoom

However cobbled together it felt, from my perspective the startup was a positive learning experience.

This was the first year that the entire Wills, Estates and Personal Planning class has been totally remote. We were concerned because typically, we want to see our students, hear them, and get a feel for their competence and capacity. Zoom provided me with another challenge. Although fellow teacher Hilde Deprez and I had both used Zoom to attend remote signatures, neither of us had hosted a Zoom class and did not have commercial Zoom accounts from The Society of Notaries. We learned there is a difference between attending

After taking everything apart, I realized I needed to look to my software. My docking station alone ran an hour of updates. My online classroom, located over the garage, is hard to heat and the dog didn’t understand that her squeaky toys were not what we all wanted to hear—nor are cables dog treats, regardless of how chewy they are!

Some of the glitches I experienced with technology were issues for the remote students, too. They persevered and assisted each other. Despite the format, we had the most student interaction, ever!

Kootenay Klassroom with Marianne and Peggy the dog

BC Notaries Association

I am honoured to have been a part of the Wills, Estates and Personal Planning course for the Class of 2021 and look forward to working with them as BC Notary colleagues. s Lorne Mann is a BC Notary in Creston. Volume 30 Number 1 Spring 2021

THE EDUCATION OF BC NOTARIES

The Conveyancing Course for Managing the Transfer of Property in BC

look forward annually to teaching the Conveyancing course to the new cohort of Notary students . . . our future BC Notaries. I am a second-cohort graduate of the MA-ALS Program; that education and training gave me a strong foundation of theory and knowledge. After 3 years of being a Notary, I was excited to be asked to be part of developing and teaching the Conveyancing course. Education has always been a passion of mine. Marny Morin and I have been teaching this course for 6 years, in person and online. We have seen it evolve significantly to include the practical components of putting clients’ real-property files together and how to advise clients so they understand the conveyancing process. While we can never cover every conveyancing scenario, Marny and I work together to provide the students with the legal knowledge and the best-practice Volume 30 Number 1 Spring 2021

Rimpy Sadhra

©iStockphoto.com/R.M. Nunes

With continuous changes in legislation and practical procedures, it is imperative that we as Notaries Public continue to review, revise, and maintain our processes to stay current. The learning truly never ends! procedures required to complete the conveyance of a property. Due to COVID regulations, September 2020 was the first time the entire course was delivered online. Our focus was placed heavily on due diligence and the important role of the BC Notary in the practical and legal aspects of a conveyance. The “file evaluations” are an integral part of the course. In an invaluable learning exercise, the students assume the role of a Notary to present their respective conveyancing files. Marny and I along with other BC Notaries provide constructive feedback on their presentations. The Scrivener | www.bcnotaryassociation.ca

I take great enjoyment in teaching this course. It ensures that the best-practices policy in my own Notary practice are refreshed and up to date . . . we review and modify our conveyancing methods on a regular basis. With continuous changes in legislation and practical procedures, it is imperative that we as Notaries Public continue to review, revise, and maintain our processes to stay current. The learning truly never ends! I am grateful for all the thank you messages I have received over the years. The appreciation makes me feel happy and eager to teach the next cohort. As a Director on the BCNA Board, I hold continuing education as an essential goal. The Board and I are dedicated to finding creative ways to deliver continuing education to our members to keep them current on policy and procedures and provide the necessary tools and support. Let the learning continue! s Rimpy Sadhra is a BC Notary at West Coast Notaries. TABLE OF CONTENTS

THE EDUCATION OF BC NOTARIES

The Learning Doesn’t Stop Leslie Madore

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clearly recall the day when I greeted my very first client as a fully commissioned Notary. Although I was excited and nervous, I felt prepared by the rigours and demands of the previous 2 years of SFU’s MA-ALS Program, The Society’s practical training, and working 2 years under the watchful tutelage of Notary Janice Rutherford.

My return to higher learning was prompted by conversations with my daughter who had started her Bachelor’s degree at UBC Okanagan. I always said that when she started university, I would go back to school again. Not finished learning, I wanted to push myself toward another rewarding profession that would stretch my goals and provide a challenge. Janice had been a Notary for 10 years. I met her after I applied to the MA-ALS Program. She had earlier decided to pursue a new career after turning 50. When I said I wanted a change and a challenge, she said I would find it with the MA-ALS Program and she was right! The MA-ALS Program became my life focus and filled my calendar to the brim. I have never worked so hard to make it to a finish line.

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I was especially inspired by the Personal Planning course with Dr. Margaret Hall. The trips to Vancouver to attend the SFU in-class sessions were bittersweet—time away from loved ones and work but the opportunity to spend time with my cohort members and instructors. The relationships and friendships developed on campus helped create a sense of community, linking us in our learning before advancing us toward the online lectures, seemingly endless assignments, reams of readings, and the dreaded exams. The camaraderie with my colleagues brought me back from the edge more than a few times. The courses provided a solid grounding in the law in which BC Notaries practise, mediating our learning through the Introduction to the Canadian Legal System and ending with ALS 630 – Topics in Legal Practice. I was especially inspired by the Personal Planning course with Dr. Margaret Hall. I felt most drawn to that area of practice—the opportunity to help people record the final say over their estate as well as plan for life’s expected and unexpected events. I really enjoyed the knowledge generated BC Notaries Association

by reading case law and exploring precedents to draft “Bill’s Will” and provide advice to “Daisy Doolittle.” I was absorbed by Property Law I and II. Ron Usher’s lectures, stories, and anecdotes were entertaining and daunting; the amount of required reading was staggering but the teaching was solid gold! I review my notes from Ron’s lectures regularly because “no two deals are ever the same.” Since that very first day, I’ve had many, many client appointments. Today as a staff Notary with Derek V. Smoluk Notary Corporation, I love where I work and what I do. I enjoy the quick pace of real estate conveyancing, the rewards of helping people with their personal planning, the attention to detail the Notary work requires, the contact with my colleagues and peers, and the mentoring I receive from Derek! The learning is ongoing— it never ends!! s Leslie Madore is a BC Notary in Kamloops. Along with Benjamin Kaan, Leslie received the 5th annual Simon Fraser University Award in recognition of achieving the highest marks in the Master of Arts in Applied Legal Studies Program. Volume 30 Number 1 Spring 2021

THE EDUCATION OF BC NOTARIES

BC Notaries’ Education is Rigorous Julia Maika

ate on the last night of our Business Practices course, Todd McKendrick connected online with his students, “Think about how hard you are working right now. You will be working at least this hard when you start working as a Notary, but probably harder.” He was right. The valuable content of Todd’s course notwithstanding, his words stuck with me and prepared me for what to expect on the road ahead. The MA-ALS Program provides a superb grounding in the numerous noncontentious areas of the law in which BC Notaries practise. (Notaries do not litigate.) The education is all applicable but certain seemingly simple lessons stood out. When I am alone in my office, puzzling over a difficult file and an answer is not immediately available, I fall back on them. 1. Pay attention to details and get them right. That was demonstrated to me after I did poorly on a Legal Research exam given by Graeme Bowbrick. I thought I had been “specific enough” in my answers, but I was unceremoniously jarred to the Notary’s requirement for exactitude and ferocious attention to detail. I am thankful for that awakening. 2. Always ask questions about unusual items on title searches (and other documents). Ron Usher helped me understand the importance of being curious. For example, I hear the words, “Just Read It,” when I pull a title search for a Personal Planning client and find a mortgage that was registered in 1952. I provide the best service to my client if I can remove outdated and unnecessary charges on title. 3. Ask what the law is trying to accomplish. That valuable advice from Dr. Margaret Hall was introduced in her Philosophy of Law course and reiterated many times in her Personal Planning courses. When I am faced with deciding which declarations are required for a property file or whether I should include a certain clause in a Will, the answer often presents itself if I ask myself, What is the law trying to do here? What is its purpose?

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I also rely on the great community of Notaries in Kamloops… Opening my sole-practitioner Notary practice in 2019 was the most stressful thing I have ever done. I have come to realize that self-doubt is my friend—it demands that I always double- and triple-check my work. I also rely on the great community of Notaries in Kamloops, including fellow graduates Leslie Madore and Franca Muraca and Notaries Janice Rutherford, Derek Smoluk, Jim Fulton, and their conveyancers who patiently field my email questions and offer their expertise. Advice to New Students The education of BC Notaries is rigorous. The profession requires dedication, precision, and problem-solving expertise. Expect the instructors in the Notary Education Program to require students to have a curious nature and to demonstrate meticulous attention to detail. After you graduate, embrace the demands placed on you as a Notary. Your fellow students will become your colleagues and your professional lifeline. s Julia Maika is a BC Notary in Kamloops.

Camaraderie among Notaries Elisabeth (Beth) Lee has completed her Notary examinations and has started working with Courtenay Notary Margot Rutherford, Dana, and Tess. Margot says, “We’re excited she has joined the firm; she’ll Beth Lee keep us energized for another busy conveyancing year! Beth worked in our office a few years ago to see if she might want to become a Notary; she spent her 2-week practicum with us and a week with Notary Barbara Burns in Campbell River. Beth has been in Margot close contact with Sally Houghton on Rutherford Quadra Island. During her mentorship, Sally spent time in my office and Barb Burns’ office.

The Scrivener | www.bcnotaryassociation.ca

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THE EDUCATION OF BC NOTARIES

Franca Muraca

Challenge and Success!

very time someone asked how I was doing during the MA-ALS Program, I would say, “It’s exactly like trying to drink out of a firehose!” When I began the Program, I thought I would have a bit of an advantage. I was an educator, held a Master’s degree in Administration, and was one of the more “mature” members of our cohort. Man, was I ever wrong! I distinctly remember Ron Usher saying that learning about the law is like learning another language. Awesome! As a former language teacher, I knew all about language learning. Did that help? Not at all! Several students in my cohort were leaving their former careers to venture into something new. We all came from such varied personal circumstances; they either facilitated our MA-ALS experience or made it even more challenging. Some students were able to be fully dedicated to their studies; others worked at their day-job and studied at night and on weekends.

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©iStockphoto.com/Chainarong Prasertthai

Some of us had help at home— with significant others at-theready to help. Some had newborn babies; others were free of the added responsibility of children. A single mom with two daughters, I had to work during the day and study at night. My father was in failing health, as well. Life didn’t stop because I made the decision to become a BC Notary.

The ideal learning situation takes place when a student feels the professor really cares and wants the learner to succeed. I love to learn, even more than I love to teach; that is what saved me through one of my most grueling academic experiences. There is an art to making complex subjects easy to digest for individual learners. A select few gifted professors can make a topic that is as complicated and vast as the law—fun and enjoyable. The ideal learning situation takes place when a student feels the professor really cares and wants the learner to succeed. BC Notaries Association

Dr. Margaret Hall

Dr. Margaret Hall and Ron Usher were my favourites. Dr. Hall is brilliant, kind, and sweet and she genuinely cares for her students. . . and she has so much patience! Her tests are killer, but she is a fair marker. When I did well in her class, I considered it a real victory.

Ron Usher

Ron Usher is a walking law encyclopedia! He is brilliant, too! The MA-ALS Program provided a strong theoretical background for the law, but nothing could replace the on-the-ground training of doing the legal work itself. Life is a fast teacher! Theoretical education is fundamental, as is building connections with clients and community. Although mastering course content is part of being a great Notary, serving clients and becoming a trusted member in your community cannot be taught from a textbook— no matter how great the teacher! s Franca Muraca is a BC Notary in Kamloops. Volume 30 Number 1 Spring 2021

THE EDUCATION OF BC NOTARIES

The Education of a BC Notary From a Student’s Perspective

he legal landscape is ever-changing, whether through new case law or the introduction of statutes or amendments to existing ones. To serve their clients effectively, Notaries Public must stay abreast of the changes. Each year, BC Notaries must obtain a minimum amount of Continuing Education Credits to stay current in the profession. The commitment to lifelong learning and professional development is one of the components that drew me to apply to become a Notary Public. I have always been fascinated by the law; my interest led me to complete a Bachelor of Arts degree in Justice Studies at Royal Roads University. Starting to work with Victoria Notary Beverly Carter in 2015 was a natural first step in the progression of my career. Our dynamic work environment ensures there is always something new to learn; I am excited to go to the office every day. I am particularly drawn to the legal area of Personal Planning and Volume 30 Number 1 Spring 2021

Victoria (Vicky) M. Helmink

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the education role we offer clients when explaining their documents. I grew up in a multigenerational home and have a very close relationship with my grandmother. I think of her often when I am interacting with clients in our office for assistance with their Wills, Powers of Attorney, Advance Health Care Directives, and Representation Agreements. The desire to help clients and their families understand those documents was another inspiration for me to become a Notary. As my grandmother’s health has changed over the years, I have seen how powerful those documents can be for a person’s life.

The Notary Society carefully screens candidates to ensure they will represent the profession well and provide quality service to clients. My journey to become a BC Notary began in July 2019 when I submitted my documents to The Society of Notaries Public of BC to determine my eligibility for the Notary Education Program, practical training, and eligibility The Scrivener | www.bcnotaryassociation.ca

for admittance into The Society (on completion of all educational requirements); my application included my résumé and personal financial overview. Notarial candidates must demonstrate integrity and the highest ethical standards. A Bachelor’s degree is a requirement for taking the Master of Arts in Applied Legal Studies Program (MA-ALS); business and office experience are assets. A course in Basic Accounting principles is a newer requirement. After my initial interview with the Notary Society’s Executive Director, there was an extensive background check, criminal record check, and financial review. The Notary Society carefully screens candidates to ensure they will represent the profession well and provide quality service to clients. Once my application to The Society was approved, I applied to Simon Fraser University for admission to their (MA-ALS) degree program. The application process took approximately 9 months to complete. The Master’s Program was introduced 13 years ago. Its successful completion is a foundational requirement to become a Notary Public in British Columbia. TABLE OF CONTENTS

Editor’s Prefer Paperless? The BCNA has each edition of The Scrivener available on our website and on ISSUU at issuu.com/bcnotaryassociation. Please email bcna@bcnotaryassociation.ca to update your subscription preference.

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I began the Program in September 2020 and, as I start my second semester, I can say I have had a very positive experience to date. The MA-ALS is designed to provide a deep understanding of the legal framework in the noncontentious areas of law in which BC Notaries practise. The Program is well worth the effort, especially as I connect the higherlevel learning with the practical day-to-day applications. The first semester focused on an overview of the Canadian legal system and provided foundational training in legal research and writing. I particularly enjoyed the introduction to Real Property. In my current work as a Notary Assistant, I work with land title documents daily. That course gave me an insight into the unique nature of our Torrens system. I have new perspectives about why our land system operates the way it does and why our system is world-renowned. During the second semester, we are turning our focus to explore important legal concepts such as the role of agency and fiduciary roles. The concepts tie in well with the other two courses where we will learn about contracts and Personal Planning documents. I am particularly excited to delve deeply into those areas. The year 2020 brought some unique challenges to our specific MA-ALS cohort. Typically, the Program starts with a 10-day residency in Vancouver, but due to COVID we did not have that opportunity. That intense start provides an invaluable opportunity for the cohort members to bond and foster lifelong professional relationships. Due to the pandemic, our cohort still has not had the opportunity to meet in person. We have been inventive in our efforts to get to BC Notaries Association

know one another and found ways to provide moral support as we tackle our intense studies. At the same time, the pandemic is helping us to develop another crucial skill for Notaries—adaptability. In addition to the Master’s Program, practical training is provided through the Notary Society. It prepares us to setup or work in a Notary practice. The required mentorship component will provide valuable insight into a Notary practice’s dayto-day operations. Although I have worked in a Notary office for the past 5 years, I am looking forward to the opportunity to experience the culture of other offices and expand my professional connections within the Notary community. At the end of the practical education training, the statutory examinations are the final confirmation that the student is ready to begin practising as a Notary. The six statutory exams are typically conducted over 2 days. I understand the exams are rigorous—comparable to the bar exams that lawyers write. Ultimately, the exams are intended to confirm the Notary’s ability in day-to-day practice, notarizations, real estate, and Personal Planning. While we “Notaries in training” first pass the intense screening process, then work through our Master’s degree and unique professional training to receive our commission, that is only the beginning. I look forward to my lifelong commitment to continuing education. Not only is it a professional requirement, I have a personal passion for learning. I have the unique perspective and privilege to say I am a “Notary in Training.” s Vicky Helmink is a BC Notary student and Office Manager at Beverly Carter Notary Public, Victoria. Volume 30 Number 1 Spring 2021

EDUCATING CIVIL LAW AND COMMON LAW NOTARIES

Bologna and Beyond

Peter Zablud, AM, RFD

MEDIEVAL AND MODERN NOTARY EDUCATION

n September 2011, The Australian and New Zealand College of Notaries conducted its first off-shore International Conference, in Bologna, Italy—the birthplace of the modern notariat. Delegates from civil law and common law jurisdictions attended the Conference, including a splendid contingent from British Columbia, led by the redoubtable Wayne Braid. The opening session was held in the Salla dello Stabat Mater in the iconic Archiginnasio, built in the 16th century to be the (then) new main building of Europe’s oldest university and law school, thought to be constructed on the very site where the legendary author and teacher Rolandino de Passaggeri first taught prospective Notaries 3 centuries before. Volume 30 Number 1 Spring 2021

The portico of the Archiginnasio Library of Bologna

Over the years, Bologna’s University was host to many thousands of students from all over Europe. Beginnings The collapse of the Western Roman Empire at the end of the 4th century is said to have ushered in some 600 years of the so-called “Dark Ages.” The 12th century Renaissance (not be confused with the 15th century Florentine Renaissance) saw a revival of commercial and urban life in Mediterranean Europe that, in turn, created a need for professionals such as Notaries who were the lawyers and legal advisors of their day but who did not appear in Courts as advocates. By the mid-12th century, the first universities appeared in response to the demand for institutions that would provide education for professionals. The outstanding centre for the teaching of law was established in Bologna The Scrivener | www.bcnotaryassociation.ca

RossHelen / Shutterstock.com

in about 1116. Over the years, Bologna’s University was host to many thousands of students from all over Europe. Scholar’s Privileges In line with Roman practice as expounded in the Corpus Juris Civilis (Body of Civil Law) prepared by the Emperor Justinian in the 5th century, in medieval Europe special favours or prerogatives (generally known as “privileges”) were granted by both Church and State as rewards to scholars whose work and professional advice benefitted public welfare and the community.1 Privileges included exemptions from local taxes, civic duties, and military service as well as guaranteed safe passage for students travelling to and from places of study.2 1 See e.g Pearl Kibre, Scholarly Privileges: Their Roman Origins and Medieval Expression, The American Historical Review (1954) 543 2 Ibid

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The Authentica Habita On receiving advice from three of Bologna’s professorial luminaries in support of his imperial claim to rule Italy, in 1155 the new Emperor rewarded the University by the grant of the Constituo (Decree) Authentica Habita.3 Among other things, the Habita granted imperial protection and safe passage to all students and teachers travelling to and from the University, exemptions from confiscation of their goods by way of the legal process of “reprisal,” as well as the (important) right to defend themselves against civil claims before judges of their own choosing, rather than before judges chosen by plaintiffs.4

Rolandino and the Artis Notariae Since its inception, Bologna’s University always has had more than its fair share of eminent teachers and students. Dante and Erasmus both studied there. Gratian, Petrarch, and Copernicus were professors at the University. Of the many notables who taught law in medieval times, among the most famous was the Notary Rolandino de Passaggeri (1215–1300); best known for his seminal work, Summa Totius Artis Notariae (the Totality of the Notarial Art), published in 1256, which became the standard handbook for European Notaries for some hundreds of years.

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It should be noted that despite the generally high educational standards required for civil law Notaries, there are several civil law notariats where the training of Notaries, particularly in relation to interventions for international purposes, can best be described as suboptimal.

The First Course for Notaries Bologna was the first university to provide a systematic vocational course of training for Notaries. By the time of Rolandino’s death in 1300, Notaries wishing to practise in Bologna and its environs were required by the powerful local Guild of Notaries to have completed a 6-year course of instruction at the University and then to have passed an examination in grammar, Latin, and the notarial art.5

Educating Common Law Notaries Other than the USA, which is in a special category, there are some 70 large and small common law jurisdictions. Unlike BC Notaries, most common law Notaries have little or no domestic function akin to that of their civil law cousins. Typically, their services are provided in support of international commercial and personal transactions.

5 C.R. Cheney, Notaries Public in England in the thirteenth and Fourteenth Centuries (Oxford University Press, 1972) 77

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3 Loosely translated as “The Authorised manner of the continuing existence [of this Community of Learning]”

In most civil law jurisdictions, entry level education for Notaries is exacting and intellectually demanding. As a rule, prospective Notaries must hold law degrees and must have graduated in the top percentiles of their classes. They must then complete 2- or 3-year postgraduate qualifications in Notarial practice followed by up to 6 years as a trainee or an associate Notary in an established Notarial office.

Unlike BC Notaries, most common law Notaries have little or no domestic function…

In giving the masters and students special legal and financial status, the Habita brought kudos and status to the University itself.

4 Julius Kirshner, Made Exiles for the Love of Knowledge; Students in Late Medieval Italy, Medieval Studies 70 (2008) 162 at 164

Educating Civil Law Notaries Within the civil law environment, Notaries sit at the centre of their respective legal systems. Notarial practice is an important and highly specialized activity that is primarily domestically oriented.

A medieval bas relief of law students in Bologna

BC Notaries Association

Sadly, the fact is that over the years, the level of education required of prospective and practising Notaries in most common law jurisdictions has been unsatisfactory. ©iStockphoto.com/Gwengoat

©iStockphoto.com/ZU_09

The Emperor Frederick Barbarossa At his coronation as Emperor in Rome on 18 June 1155 by Pope Adrian IV, the German King Frederick Barbarossa (regnal years 1155–1190) took on the title Imperator Frederick Barbarossa Augustus assumed by Charlemagne for himself and his successors when he was crowned by Pope Leo III on Christmas Day, 800. The Emperor’s title and role carried with them the traditional power to grant privileges, including scholars’ privileges, throughout Europe.

A French notaire’s brass doorway sign

Volume 30 Number 1 Spring 2021

With few exceptions, education is not and has never been high on the list of priorities of the authorities who appoint common law Notaries. Until relatively recently, the received wisdom in Australia and New Zealand was that if a prospective Notary were a senior practising lawyer, he or she would immediately be able to conduct a competent Notarial practice once appointed as a Notary. Save in relation to English Scrivener Notaries who are and always have been in a highly qualified class of their own, the same view was held in England and elsewhere in the former British Dominions and Colonies. The unstated theory seems to have been that immediately upon appointment, particularly by the Court of Faculties of the Archbishop of Canterbury, there would be a blinding flash of light and the new Notary would suddenly know everything. It may be that in England being physically closer to the Archbishop (and therefore closer to God), the position was different. But in the antipodes and elsewhere in common law jurisdictions, when appointed, typically new Notaries knew nothing and were out on their own. In truth, Notarial practice in most common law jurisdictions is not overly difficult for experienced lawyers. Even so, it can be demanding and is often complex, requiring a level of specialist knowledge and a degree of skill not usually anticipated by most who seek appointment to the notariat. Notarial intervention for international purposes can be quite tricky, particularly when dealing with the confusing and messy problems in the area so delightfully described by the late Professor Donald Schön as the “swampy lowlands of practice.”6 6 Donald A Schön, The Reflective Practitioner – How Professionals Think in Action, (Basic Books, 1983) 42

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Following the rapid expansion of international trade and investment that began in the 1980s, the requirement for and the role of Notaries in all common law jurisdictions has burgeoned massively—covering areas not even on the horizon 60 or 70 years ago. In turn, that was accompanied by an increased understanding by many Governments and Societies of Notaries for the need for specialist entry level education for prospective Notaries.

Instituting serious courses of education is a slow process. In British Columbia at the time of its 1911 legislation, no specialist qualifications for appointment were required by the Act. Compare that to the high standard of education now required in BC, where to be appointed, Notaries must undergo serious education and training including obtaining a Master’s degree qualification from Simon Fraser University. In the 1980s, in England and Wales it became mandatory for prospective Notaries (who were then and still are drawn from the ranks of practising lawyers) to complete a Diploma in Notarial Practice, originally offered by the University of Cambridge, but now offered by University College London. Notaries in Hong Kong and Ireland (who must be senior practising lawyers) must undertake high level Notarial education to qualify for appointment. The State of New South Wales led the way in Australia in 1995 by requiring completion of a short course, conducted by the College of Law in association with the NSW Society of Notaries as a precondition to appointment as a Notary in that State. The passage of the State of Victoria’s Public Notaries Act 2001 with its The Scrivener | www.bcnotaryassociation.ca

mandatory education requirement resulted in prospective Victorian Notaries having to complete a Graduate Diploma in Notarial Practice (now “The Professional Course in Notarial Practice”) offered by the Sir Zelman Cowen Centre at Victoria University, Melbourne. That course is presently the leading course of its kind in the common law world. Instituting serious courses of education is a slow process. The State of South Australia is about to conduct its first compulsory entry level course for prospective Notaries. Unfortunately, several other Australian jurisdictions and New Zealand stoically refuse to require neophytes to be formally educated in the Notarial art— thereby doing themselves and their clients a major disservice. New Zealanders et al are not alone. Most common law jurisdictions, including Canada’s common law Provinces and Territories, other than British Columbia, have not seen fit to specifically educate their Notaries. That failure has resulted in embarrassingly substandard Notarial interventions, especially for international purposes. Little wonder that civil law Notaries look down their noses at common law Notaries and almost universally believe that all common law Notaries are of the same ilk as their untrained, unqualified American namesakes. Incredibly, most common law notariats have not established Societies of Notaries or other professional organizations to represent their interests, including those concerning education and training. Where they do exist, Societies of Notaries have a key role in relation to education. It is they who must promote the need for specialist education and assist academia in the design and presentation of courses. It is they TABLE OF CONTENTS

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who must constantly liaise with universities and local institutions that formally provide training; it is from the ranks of the Societies that teachers must be drawn. Most established Societies are willing and able to assist newer Societies in their educational efforts. For example, the London Scriveners have long been active in training Hong Kong Notaries. The involvement of Societies of Notaries in education and training should not stop at entry level. Societies, and in the case of British Columbia, the Association, also have a major role in connection with ongoing professional development. In today’s fast-moving world, the knowledge and training required by Notaries to provide a proper level of service must be constantly maintained and kept up-to-date.

Discover how you can help your clients leave a legacy. bcchf.ca/legacy-advisor Hilary Beard, Gift & Estate Planning 604.875.3679 hbeard@bcchf.ca

Every day. Every matter.

We’re here for you.

It is essential that programs be planned and not just presented ad hoc. A well-thought-out professional development program may usefully be conducted over a 3-or-4 year cycle. Obviously, a program can be varied or supplemented as and when specific issues arise. Thought and effort put into planning, presenting, and evaluating professional development programs will unquestionably see worthwhile programs emerging that will be of genuine value to practising Notaries and therefore to the public they serve. In Conclusion Two pertinent quotes about education

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BC Notaries Association

1. “Education is the passport to the future, for tomorrow belongs to those who prepare for it today.” - Malcolm X 2. “Education costs money but so does ignorance.” - Baron Claus Moser s Professor Peter Zablud, AM, RFD, is an Australian Lawyer and Notary and the Director of Notarial Studies, Victoria University, Melbourne, Australia. Volume 30 Number 1 Spring 2021

THE PATH TO SUCCESS

The Education of Self

he benefits of an “education” often don’t seem apparent until later in life. There are many perspectives. Gratitude for the opportunity is one of them. That is usually reserved for parents—those who fomented their child’s vision through their own desires or through their later-in-life lamenting the circumstances where war or other economic realities thwarted their own studies. In most personal recollections, students cite parents for teaching them the importance of developing life skills and the knowledge of how to have a fuller life beyond just making a living. In life, I have also met many successful people in business who sense they are “not educated” enough. Those individuals can simply go back to school and demystify something that has bothered them for most of their adult lives. Training and Education Training involves learning with a goal of performing a specific skill or behaviour. A new industry Volume 30 Number 1 Spring 2021

Nigel Atkin

©iStockphoto.com/Connel_Design

sometimes develops and jobs are available, but a workforce needs specific technical training, for example, for society to adapt to the economic needs of climate change. Colleges handle that function well, rapidly modifying course options to serve community and industry needs. Good colleges also provide educational background about the services they offer their students, such as the history of the trades, the context of the key leaders in the field, who built what great bridge, the architectural background, the significance of good design in everything, and so on.

In life, I have also met many successful people in business who sense they are “not educated” enough. Education by definition is a systematic process of learning something with a goal of acquiring knowledge. Universities are usually considered the home for getting a good education. They generally teach students to think critically from multiple The Scrivener | www.bcnotaryassociation.ca

perspectives to create solutions to life’s complex issues. They encourage discussion, research, and engagement to develop communication toward leadership positions that motivate people into action. They teach business students the organizational and management skills, studies that are transferable in any market, thus rounding out skills to lead people into greater success than just monetary profits. Some universities teach theology or journalism or indigenous studies. The opportunities in Canadian universities are as wide as the sky and can take any student inclination or developing passion to infinite extremes of comprehension, economy, and self-worth. Knowledge is Power One of the best essays I received from a student in a management course at the University of Victoria a couple of decades ago was an assignment to defend or refute the philosophical concept that “Knowledge is Power.” She wrote that knowledge, even if it is not used, is still power resident in the individual. TABLE OF CONTENTS

I‘ve thought of that idea for many years, how for instance a dam contains water for when and if it’s needed for energy, recreation, or irrigation, even for refueling water bombers in times of fire emergency. Knowledge makes people powerful for when and if it’s needed. Similarly, I think of subject-matter experts resident within the civil or public services of government, the best qualified and ready to offer complex policy options and law if necessary. Those servants help manage and regulate dire issues of food, drug, and water safety, the looming digital-age issues of surveillance, data ownership, personal privacy, hacking, and other yet-to-be-determined aspects of Information Age war. Consider how many North American deaths were caused by anti-intellectuals who dismantled institutions to manage global pandemics. In many instances, from halting research and intelligence-gathering to the production of vaccine, many balls were dropped. Other Paths to Education Formal university education is but one of the paths toward ongoing education. Louis L’Amour was primarily known as a writer of western novels, many of which became television and western movies; we grew up with many of his stories. He also wrote history and science fiction. One of his books, Education of a Wandering Man, was his memoir, his life as someone who left school at 15 and developed a lifelong affair with learning. The autobiography documents the novels and other books he read, the world he travelled, and the amazing men and women he met along his trail . . . their influence on him as a man and as a great writer and storyteller.

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That kind of diversity of living life and gaining knowledge and wisdom by consciously wandering rightfully appeals to many spirited people. Merging Trades and Academics There is also an appeal to merge practical and even supposedly frivolous life studies in art and in “the trades” with classic university education. People who do that have always been intriguing, the best of them deemed of Renaissance stature.

Consider how many North American deaths were caused by anti-intellectuals who dismantled institutions to manage global pandemics. Winston Churchill comes to mind in that regard. He considered laying some 200 bricks in his Chartwell Garden; writing a couple of hundred words and painting a picture was a very good day. In his essay, first published in 1932 and subsequently after World War II in 1948, “Painting As A Pastime,” Churchill explains the balance needed in life and how stresses, what we today consider burnout, can be mitigated through using completely different parts of our brain at different times. He explains that when making the right colour choice for a painting, other parts of our brain—those literate or dealing in mathematics—rest, actually healing. The concentration of bricklaying or other trades also balances the mind, just as coming home from a job site one can find a good book calms the fatigue and nerves of the day. In past decades I have made numerous bootleg copies of my own somewhat rare copy of his BC Notaries Association

essay for students, friends, and many soldiers returning home. Today, Project Gutenberg Canada has made this short e-book freely available to all on the Internet. It is well worth looking up and reading. In a similar circumstance of balancing college and university, a career counsellor at Camosun College on Vancouver Island told me that students right out of high school have told her they want to be doctors. She advised them to learn welding first because that trade will help them pay for medical school, and at the same time, improve their hand/eye coordination for the delicate surgery ahead. The blending of trades and the more standard education is supported on numerous other fronts. An Irish author/philosopher specializing in organizational behaviour, Charles Handy presented his views on the nine different kinds of intelligence in a book called The Empty Raincoat in the UK and The Age of Paradox in North America. He explains them as Factual, Analytical, Linguistic, Spatial, Musical, Practical, Physical, Intuitive, and Interpersonal. While he contends there may be more, he makes a case for knowing which one, or how many, actually reside in each of us. While life might be the primary teacher for all of us, the journey is made easier and life better when we explore ourselves and nurture our innate intelligence(s) in the wide possibilities offered through experience, universities, colleges, and art schools. s Nigel Atkin teaches the Evolution of Public Relations course online at UVic. He offers onsite communication workshops to leverage human capital and exploit the multiplier effect of becoming better communicators. Volume 30 Number 1 Spring 2021

MONEY LAUNDERING

ANTI-MONEY LAUNDERING TRAINING IS A REQUIREMENT

Chris Walker

Don’t Ignore the Penalties

©iStockphoto.com/chrisboy2004

n 2021, educating a BC Notary includes a graduate degree

• Simon Fraser University’s Master of Arts in Applied Legal Studies; • the BC Notary Practical Training Course; • 105-hours of mentoring with a commissioned BC Notary; and • success in all associated statutory examinations. All those steps must be completed for eligibility for membership in The Society of Notaries as a commissioned BC Notary. Once commissioned, BC Notaries must remain in good standing through continuing education opportunities within a designated cycle. Once a BC Notary starts to practise, “other” training requirements emerge including those regulated under Canada’s Proceeds of Crime (Money Laundering) And Terrorist Financing Act and its associated Regulations. Those education and training requirements are defined and monitored by FINTRAC (Financial Volume 30 Number 1 Spring 2021

Transactions and Reports Analysis Centre of Canada) through its regulatory Guidance and examination/audit functions.

Once a BC Notary starts to practise, “other” training requirements emerge including those regulated under Canada’s Proceeds of Crime (Money Laundering) And Terrorist Financing Act and its associated Regulations. What Must Training Include? FINTRAC in its Compliance Program Requirements Guidance requires each reporting entity, in this case a Notary practice, to “develop, implement, and maintain an ongoing compliance training program if you have employees, agents, or other individuals authorized to act on the practice’s behalf. All individuals who deal with clients and/or transactions must be trained in relation to their function/ duties within the Notary practice.” The practice training program must be in writing, must be reviewed regularly, and kept The Scrivener | www.bcnotaryassociation.ca

current with all new enhancements, updates, and changes. At a minimum, FINTRAC expects that a Notary practice training program will include the following: ML/TF concepts and some background information on ML/TF in relation to your practice, for example, definitions of ML/TF, why criminals choose to launder money and how the process for ML/TF usually works. 1. Your practice compliance policies and procedures for preventing and detecting ML/TF, including your reporting, client identification, knowyour-client, and record-keeping obligations 2. The responsibilities of your employees, agents, or anyone else acting on your behalf when dealing with suspicious activities or transactions The training materials should include examples of how your particular practice could be used to launder illicit funds or fund terrorist activity. That information should help with the identification of suspicious transactions and may provide some assurance that your services are not being abused for ML/TF purposes. TABLE OF CONTENTS

Recovery from mental illness is possible. You can help. When your clients take the step of including Coast Mental Health Foundation in their Will, they help ensure that no matter what the landscape of mental health is like in 20 years, 30 years, and beyond, Coast will be here to respond, improve, and save lives, just as we have since 1972.

Your legacy will ensure people like Czarinna can recover from mental illness.

Coast Mental Health Foundation Registration Number: 86150 8018 RR0001

Learn how to leave a legacy gift to Coast Mental Health Foundation. Contact Meghan Boswell 604.785.1910 | meghan.boswell@ coastmentalhealth.com

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During a FINTRAC examination, or as part of your Biennial Effectiveness Review, the examiner and/or review consultant will review the documentation you have in relation to your training program and could conduct interviews with the Notaries and employees in the practice to assess the effectiveness of your training program, through questions on the interviewees’ understanding of the practice policies and procedures, their knowledge about ML/TF activities in relation to the practice, and so on. Sanctioning the Failure to Train FINTRAC takes its monitoring responsibilities very seriously and has been provided with the legislative authority to sanction a reporting entity, including a BC Notary practice that fails to put in place and maintain training programs relative to the sector requirements. FINTRAC sanctions for such failures can range from deficiency citations in an Examination Findings Letter—to Administrative Monetary Penalties/ fines (AMPS)—to noncompliance disclosures to police. Noncompliance disclosures are rare, but the latest FINTRAC Annual Report for 2019–2020 noted that seven such cases had been referred to law enforcement. According to that Report, police have increasingly looked to utilize the Non-Compliance Disclosure tool to pursue criminal charges under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act—a criminal Act that carries various penalties if convicted, including fines and prison terms. Administrative Monetary Penalties, or AMPs as most reporting entities know them, can be very impactful on the pocketbook of a business on the receiving end. AMPs over the years have ranged from 4-figures to 7-figures depending on the BC Notaries Association

seriousness of the deficiency(s) and the ability of the business to pay the fine. FINTRAC re-wrote its AMP Guidance recently and what we are seeing now is a more specific approach to calculating the level of harm and the penalty associated with each deficiency cited after a FINTRAC examination. Measuring the Harm Caused by Deficient Compliance Training Programs Since we are talking about training in this article, let’s focus on the different degrees of harm that FINTRAC associates with the regulated requirement to have and deliver ongoing training across a Notary practice here in BC. FINTRAC’s AMP Guide identifies the following general description for a deficiency associated with ongoing training: Failure of a person or entity that has employees, agents, or mandataries or other persons authorized to act on their behalf to develop and maintain a written ongoing compliance training program for those employees, agents, or mandataries or persons. The AMP-range that can be assessed for this deficiency can range from $1 to $100,000, with the specific amount determined by the level of noncompliance harm calculated by FINTRAC on its findings from an examination. Level 1 Harm occurs when the training requirement is not met to any degree, or what is in place is not functional, causing widespread noncompliance. The value of the penalty at this level is $100,000. For example, a documented training program has not been developed or maintained to cover all, or most, of the elements required to comply with the Act and its regulations. Simply put, if your Notary practice does not have a detailed, written AML training program in place today, you could be assessed up to a $100K penalty for this deficiency. Volume 30 Number 1 Spring 2021

• Level 2 Harm occurs when an element that is a priority for achieving the objectives of the Act or FINTRAC’s mandate is not met, that is, partial noncompliance with important weaknesses. The value of the penalty at this level is $75,000. • For example, the training program is missing priority elements, such as maintaining training on the Notary practice compliance policies and procedures; the responsibilities of employees, agents and those acting on behalf of the Notary practice, when dealing with suspicious transactions; and key ML/TF concepts including background information on how ML/TF can impact a Notary practice. Simply put, if your Notary practice does not cover as part of its regular training the detail of your Policy Manual or what to do if a suspicious transaction occurs or how money laundering could impact your practice, you could be assessed up to a $75K penalty for this deficiency. • Level 3 Harm occurs when an element that forms the basis for achieving the objectives of the Act or FINTRAC’s mandate is not met, that is, partial noncompliance with moderate weaknesses. The value of the penalty at this level is $50,000, for example, a plan that addresses the timing and frequency of delivery of the training program is missing; or the plan does not identify in detail who will receive the training; or does not include content that is relevant and specific to different employee roles in the practice. • Level 4 Harm occurs when an element that enables the efficient achievement of the objectives of the Act or FINTRAC’s mandate is not met, that is, partial noncompliance with lesser weaknesses. The value of the penalty at this level is Volume 30 Number 1 Spring 2021

$25,000, for example, the training program is not maintained on an ongoing basis. Failing to establish clear guidelines for ongoing compliance training may result in program weaknesses over time, for example, due to changes to regulatory requirements, or changes in staff or organizational structure. That may lead to the Notary practice not meeting its requirements to report, identify clients, and keep records. The development, delivery, and maintenance of an AML/ CTF training program is 1 of the 5 pillars set down by Canada’s Money Laundering legislation to manage the risks associated with money laundering and/or terrorist financing that can impact on a Notary practice. The specifics of such a training program, its content, delivery, and maintenance make up the details assessed in either a Biennial Review or a FINTRAC Examination. Reported deficiencies in those details by way of a FINTRAC Examination Letter could result in the administration of different possible sanctions—including heavy monetary penalties. Taking a pro-active approach to managing your practice training requirements on an annual basis will help ensure such sanctions can be avoided. s References 1. FINTRAC’s “Guide on Harm Done Assessment for Compliance Program Violations” 2. FINTRAC’s “Compliance Program Requirements” Chris Walker is a Criminologist and President of About Business Crime Solutions, Inc. (ABC) a consulting firm providing among other services web-based training programs for all of Canada’s regulated reporting sectors, including British Columbia Notaries. The Scrivener | www.bcnotaryassociation.ca

Seeking a Career as a British Columbia Notary Public?

There are business opportunities for Notaries in various communities throughout British Columbia.

Some of the Requisites for Becoming a BC Notary • Undergrad degree with a CGPA not less than 3.0 • Interest in the practice of law • Strong entrepreneurial spirit • Strong communication and people skills • Dedication to community and serving the public • High degree of honesty and integrity

For more information, please contact The Society of Notaries Public of BC 1-800-663-0343 or visit our website, www.snpbc.ca.

BC NOTARIES ARE RESPECTED IN THEIR COMMUNITIES. TABLE OF CONTENTS

Recent BCNA Education Event!

ritish Columbia Notaries Association (BCNA) hosted a successful Virtual Continuing Education session April 16 and 17, 2021, with a variety of content and engaging presenters.

For the 2020–2021 Continuing Education reporting year, BCNA has provided opportunities for Notaries to earn up to 16 Continuing Education Credits. Hosted on Zoom, the April session started with an introduction from Daniel Boisvert, BCNA President. In an update from the Land Title and Survey Authority of British Columbia (LTSA), President and CEO AlKarim Kara provided an introduction to share his vision for the future and what LTSA Al-Karim Kara is doing to ensure BC’s land title and survey systems remain trusted and transparent. Daniel Boisvert

Charlsy Dobell

Charlsy Dobell, Product Portfolio Manager, presented upcoming initiatives and developments at LTSA, including new functionality coming to Web Filing and myLTSA.

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He also provided an overview of the ID Verification service and an update on the launch of search capabilities for the Land Owner Transparency Registry that began April 30, 2021. Next up was D’Arcy Frankland, Notary Public in Campbell River, and Brent Taylor, BCLS, discussing LAND SURVEYING: D’Arcy A Comprehensive Frankland Review of the Working Relationship between a Notary and a British Columbia Land Surveyor. With D’Arcy having over 30 years as a Notary and Brent working as a Land Surveyor for over 35 years, a variety of topics were reviewed: • sketch plans, • building location certificates, • lot coverage calculations, • certificates of nonencroachment, • subdivision plans, • topographical plan, • explanatory plan and reference plans, • foreshore lease and licence areas, • boundary location, cancellation of interior lot lines, lot line adjustments, • site lines and building heights, BC Notaries Association

Trista Zamany

• metes and bound descriptions, • board of variance applications, and • a sketch plan for well registration. Day 2 began with an introduction from Chad Rintoul, BCNA CEO. A general review of the Builders Lien Act Chad Rintoul was provided by Ron Usher, Staff Lawyer Society of Notaries Public of British Columbia (SNPBC) and Practice Advisory Line (PAL) Advisor, Ron Usher and Daniel Boisvert, Notary Public. This session encompassed what Notaries need to know about the Builders Lien Act and how it affects the Notaries and their clients. Our second session on Saturday morning, presented by Geoffrey White, LLB, BBA, from Clark Wilson in Kelowna, offered advice for Estate Geoffrey White Planning for Notaries’ High Net Worth & Complex Clients. The overview of this session included the following. • What happens when your client’s need is “beyond the basic Will?” Volume 30 Number 1 Spring 2021

• Ten “red flag” facts including private companies, nonresident status, large probate fees; family conflict, disability, unequal inheritances, and more • How Notaries, as the clients’ trusted advisors, can “flag” their risks and help clients find solutions. After a short lunch break, our afternoon sessions began with Quang Duong, Partner with MacKenzie Fujisawa, LLP, and Quang Duong Todd McKendrick, Chair of the Board of the BC Notaries Captive Insurance Company Inc., leading a session on Risk Management. The Todd wealth of information McKendrick included discussions about recent cases and claims, the importance of retainer agreements, and how to keep a good file. Joan Letendre

Practising Advisory Line (PAL): Ron Usher, Joan Letendre, and Leanne Rebantad presented recommended techniques on client interviewing and due diligence.

Course Description • Owner coverage for Speculation and Vacancy Tax or Empty Homes Tax • Lender coverage for Super Priority Liens/Deemed Trust Transaction Protection Endorsement Vice President, National Underwriting Counsel, for Chicago Title Insurance Company, Brigitte joined the title Brigitte insurance industry Beauchesne in 1998 and is responsible for overseeing title insurance underwriting and risk assessment on real estate transactions in all Canadian Provinces and Territories. Brigitte brings a wealth of expertise and knowledge about risk assessment and underwriting all types of real estate transactions. Solution-oriented and known to bring creative options to the table, Brigitte has worked on major real estate transactions, mortgage portfolios, cross-border transactions, and renewable energy projects, to name only a few.

Lunch & Learns

Brigitte delivered speeches on title insurance at various conferences as a guest speaker, notably with the Real Estate Forum, The Canadian Bar Association, The Canadian Institute, the Ontario Bar Association, and Mortgage Professionals Canada. Brigitte obtained her law degree in Ottawa and her Notarial Diploma in Quebec City.

Topic: CHICAGO TITLE

Topic: DIXON MITCHELL

Tax Coverage and Title Endorsements: How You Can Benefit from Them

Retirement Income Planning: Do I Have Enough?

Presenter: Brigitte Beauchesne

Presenter: Jeff Gruber, CFP When: Wednesday, May 19 Time: 12 noon Where: Zoom

Leanne Rebantad

Upcoming Continuing Education Initiatives

When:

Wednesday, May 5

Time:

12 noon

Where: Zoom Volume 30 Number 1 Spring 2021

The Scrivener | www.bcnotaryassociation.ca

Course Description As a financial adviser, I find the question most asked from clients is “Do I have enough?” Of course, they are referring to whether they have enough saved to retire and to last them for the rest of their nonworking lives. For the most part, once clients feel assured they won’t run out of money, the next question is “How much can I spend?” Using a relatively simple framework, we will answer whether retirees will have enough money and strategies on how to get the most out of their retirement nest egg. Presenter: Jeff Gruber, CFP Portfolio Manager at Dixon Mitchell Investment Counsel with over 20 years’ experience in the investment industry, Jeff has worked with a range of asset classes and strategies across both private and institutional clients. After graduating from Queen’s University with a Bachelor of Commerce (Hons), Jeff began his career with a large national-bankowned investment dealer. A focus toward macroeconomic trends and global markets led Jeff to the alternative investment space where he co-founded a Vancouver-based investment firm with investment mandates covering multiple hedgefund strategies. Prior to joining Dixon Mitchell, Jeff worked as Director and Portfolio Manager for a large Swiss-based global bank. That part of his career path piqued his interest in retirement income planning. Now as Portfolio Manager at Dixon Mitchell, Jeff has expanded on that work, developing tools that help show clients where their current savings plans are taking them, what withdrawal amounts their assets will safely support, and how to take those funds in the most taxefficient way. TABLE OF CONTENTS

TOPIC: Marsh & Chubb Executor Liability Insurance Overview

strategies to prevent “trouble spots” from becoming problems.

Based in the Vancouver Insurance Industry since 1993, Kingsley started as an underwriter at Axe Pacific Insurance Kingsley Chow Company and transitioned to Insurance Broker in 1997. With Marsh Canada since 2001, he currently serves as Commercial Lines Leader in Vancouver.

The following topics will be covered.

Presenter: When: Time: Where:

Kingsley Chow SVP, Marsh Canada Wednesday, June 9 12 noon Zoom

Topic: Central File Presenter: When: Time: Where:

Zoe Stevens Wednesday, September 8 12 noon Zoom

Topic: Stewart Title Updates on Title Insurance Presenter: When: Time: Where:

Amanda Magee Wednesday, October 6 12 noon Zoom

CONTINUING EDUCATION CREDITS (CE)

Topic: Wills and Estates and Advance Planning: Careful and client-centred Notary Practice (2 CE CREDITS) Presenters: Dr. Margaret Hall, BA, LLB, LLM, PhD Hilde Deprez, Notary Public When: Wednesday, June 23 Time: 11 am–1 pm Where: Zoom Course Description In this session, the presenters discuss how to approach potential “trouble spots” in the area of Wills and Estates and advance planning practice, together with strategies for careful and client-centred Notary Practice

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• Duty of Care, Standard of Care: To whom does the Notary owe a duty of care? What is the “reasonable Notary’s” standard of care? • Assessing Capacity: What is the Notary’s responsibility? How do you meet that responsibility in the context of Wills and advance planning? What should careful notes in this context include? • Death Bed Wills: What special issues arise in this context? What is the nature of the Notary’s responsibility? What should careful notes in this context include? • Section 7 Representation Agreements: Does the distinctive approach to capability in this context raise special concerns for Notaries? What are they and how can they be addressed through careful client-centred practice? • The Will Interview: Beyond the checklist—building rapport; the importance of explanation and information in gathering accurate and complete information. What should careful notes in this context include? • Wills Variation (section 60): Asking the right questions; explaining the law; evidence going to decision-making

and the BC Notaries Chair in Applied Legal Studies in the School of Criminology at Simon Fraser University in British Columbia, Canada. Dr. Hall’s research interests include law and aging, mental capacity and undue influence, legal responses to vulnerability, and systemic theories of liability in tort law. Her research integrates doctrinal analysis with qualitative research methodologies. Prior to joining SFU, Dr. Hall was an Associate Professor in the Faculty of Law at Thompson Rivers University (as a founding member of that faculty) and an Assistant Professor in the UBC Faculty of Law. She has also worked in law reform and was the first Director of the Canadian Centre of Elder Law Studies. Hilde Deprez, Notary Public with an office in Vancouver’s West Side, graduated with a Master of Laws degree from the University of Leuven, Belgium, married in 1992, and moved to Canada in Fall 1996. She has been a BC Notary since 2001. Hilde is actively involved in her community and renders Notarial services with a personal commitment to her clients.

EVENT: BCNA 2022 Annual Conference

• Responding to Undue Influence Red Flags: What is the Notary’s responsibility? What concrete steps can/should you take? What should careful notes in this context include?

Where: Sheraton Wall Centre, Vancouver When: February 25–27, 2022 The Association intends to hold this event as an in-person Conference, subject to Public Health Authority approval. The Association has not held an in-person Conference for an extended period; we are holding this event earlier in the year than we normally intend. Moving forward, BCNA will host an Annual Conference in the Spring. s

Dr. Margaret Isabel Hall, BA, LLB, LLM, PhD, is a Professor

Trista Zamany is the Continuing Education Manager of BCNA.

• The “Springing” Advance Planning Instrument: Information and explanation

BC Notaries Association

Volume 30 Number 1 Spring 2021

THANK YOU TO OUR 2021 SPONSORS

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Volume 30 Number 1 Spring 2021

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THANK YOU TO ALL PRACTISING NOTARIES AND STUDENTS FOR ATTENDING OUR FIRST VIRTUAL BCNA CAREER FAIR The Annual Student Notary Career Fair was held on February 6 2021, for the first time virtually. We are pleased to advise that we had over 60+ attendees on the day. The Career Fair is an event that connects Student Notaries looking for employment, and current Notaries seeking staff or looking to sell their practices, as well as a mechanism to provide students with some career insights from experienced Notaries. Please see the outline below for what took place on the day, and the speakers who provided valued information to our Student Notaries. Given the positive feedback on the virtual format as both accessible and cost effective, we anticipate future Career Fairs will be conducted online.

THE AGENDA

THE PRESENTERS

Chad Rintoul BCNA CEO

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Daniel Boisvert BCNA President & Notary Public

David Watts Notary Public

Rimpy Sadhra Notary Public

BC Notaries Association

Ron Usher SNPBC Staff Lawyer & PAL Advisor

Leanne Rebantad SNPBC + PAL Advisor

Volume 30 Number 1 Spring 2021

ORIGINAL RECIPE

Roman Svirshchevs’kyy

Ukrainian Borscht Recipe About 8 portions. Cooking time 1½ to 2 hours. Ingredients Meat (beef, pork, or chicken), 400 to 450 grams, to create broth 4 potatoes 1 onion 1 carrot 3 red beets 1 ⁄3 cabbage 2 to 3 cloves of garlic 2 tablespoons of tomato paste 3 to 4 litres of water Salt, black pepper, bay leaves Dill (or other herbs) Sour cream Volume 30 Number 1 Spring 2021

Directions 1. To make the broth, wash the meat, put into a saucepan, and cover with water. After boiling, turn heat to low and cook until meat is tender (time depends on type of meat you have chosen). Remove meat from broth carefully. 2. Strain broth if desired. Add diced potatoes. Cook 10 to 12 minutes. 3. Peel onions and chop with carrots; fry in a pan with a little vegetable oil.

the grated beets. Fry for a couple of minutes. Simmer 5 minutes then add the tomato paste. Simmer another 5 to 7 minutes over low heat. 6. After cutting it into portions, put the meat into the broth, add the beets. 7. Add salt, black pepper, bay leaves, and pressed garlic to taste. Cook for another 7 to 10 minutes until potatoes are cooked. Remove from heat, cover, and leave to infuse for half-an-hour. You can add the herbs and sour cream before serving.

4. Put fried vegetables and finely chopped cabbage into a saucepan with the broth.

Bon Appetit! s

5. In the meantime, pour a little more oil into the pan and add

BC Notary Roman Svirshchevs’kyy practises in Vancouver.

The Scrivener | www.bcnotaryassociation.ca

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CHARITABLE GIVING

THE MiX

Picking up the Stitches Sara Neely

ourdough bread. Raised gardens. Planting from seed. Nature walks. Music-making. Making bubbles. Being in a bubble. Zoom meetings. Facetime connections. Sewing masks. Banging pots. Smiling with our eyes. Pivoting. The list goes on—ways some of us have coped, adapted, and connected during this last year since the COVID-19 pandemic began—ways we have used to try to maintain some sense of our lives as we knew them “before” and those of family, friends, and coworkers around us—and the larger family of people in our community that we help through our donations and our volunteer support as they deal with the impact of the pandemic on their lives. One of the things I did personally was to start knitting again . . . not the sweaters or blankets of years ago. By the end of a day of remote work and online meetings, my hands want to be creative, but my mind can only muster creating a dishcloth. It reminds me of the hours I spent knitting and often “unknitting”

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as my family used to call it . . . a missed stitch or more; an incorrect count and I would be unraveling my work and picking up the stitches again! Whatever your art, craft, or passion, the process of making something shows us how all the ingredients, tools, and steps are interconnected and how, when they work together, the result works. And when they don’t—well, the whole thing unravels.

In February 2021, the Victoria Foundation released “Unraveling: Nonprofits, COVID-19 and the Fabric of BC Communities” (Unraveling). That thought came to mind on the recent release of a followup study on the impact of the pandemic on the charitable sector in British Columbia. In Spring 2020, Vantage Point, in partnership with Vancouver Foundation, Victoria Foundation, and the City of Vancouver, conducted a study to understand how the pandemic was impacting the operations and program delivery of nonprofit organizations in BC. From that study of over BC Notaries Association

1000 nonprofit leaders, the report, “No Immunity: BC nonprofits and the Impact of COVID-19,” told us that no subsector, size of organization, geographic region, or community served was safe from the impact of COVID-19. At that time, • 1 in 5 nonprofits anticipated closing their doors; • 51% expected job layoffs; and • 23% were planning to lose their primary operating space by the end of 2020. Thankfully, many of those dire predictions have not come true, but the fabric of our communities is damaged. In February 2021, the Victoria Foundation released “Unraveling: Nonprofits, COVID-19 and the Fabric of BC Communities” (Unraveling). The report compiles survey results of over 900 nonprofits in BC, including 123 organizations from the Capital region, and was released in partnership with Vancouver Foundation and Vantage Point. The report highlights how the vital charitable sector has managed to pivot services and keep doors open in many cases, but also points to alarming warning signs about the days ahead. Volume 30 Number 1 Spring 2021

• 58% of organizations report an increase in demand for services. • 64% of organizations report a decreased ability to deliver programs, services, and activities. • 71% of organizations, especially smaller organizations, are expecting a budget shortfall in 2021. • 48% of organizations expect to shut down their operations if the current situation continues—20% within the next year. • 59% of organizations report a drop in volunteer involvement. Decreases in volunteer involvement have hit arts and culture and sport/ recreation the hardest. The report notes “these impacts are unraveling the fabric of our communities. As we enter the next stages of the COVID-19 pandemic and eventual recovery, we need to preserve the nonprofit infrastructure that sustains the basic needs for many people in our communities that gives meaning for our lives in challenging times and helps us connect with our communities and continues to draw attention to the systemic changes needed to ensure our resilience and vibrancy.”

Alexander Ning Notary Corporation 206 - 8120 Granville Avenue, Richmond, BC, Canada V6Y 1P3

Alex Ning Notary Public, Mediator, Immigration & Refugee Counsel

Email: alex@annc.ca Direct: 604 270-8155

Fax: 604 270-4751 Telephone: 604 270-8384

For litigation referrals, trust

thegooddirm

Charities are all around us. “Unraveling” reports • the nonprofit sector in BC contributes $6.4 billion to BC’s GDP and employs 86,000 people across the province; • 74% of the people employed in the sector are women; • 62% of British Columbians volunteer their time and talent to strengthen their communities—the equivalent of 146,711 full-time jobs and economic value of $6 billion. Volume 30 Number 1 Spring 2021

Richter Trial Lawyers

Estate Litigation | Family | Personal Injury

The Scrivener | www.bcnotaryassociation.ca

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More than the numbers, it is through those individuals that we are interconnected and we find “belonging” in our communities. Charities are the fabric of our communities—for example, • the seniors care programs, • art classes for kids, • beach cleanups, • local theatre, • resettlement programs for new immigrants and refugees, • music programs, • cultural events, • youth services, • food access programs, • environmental stewardship programs, and • religious groups.

That model calls on funders to provide organizations with core discretionary funding so they can build “a strong foundation from which to sustain, pivot, jump, innovate, adapt, shift, and start up” their work. It continues to centre responsible stewardship with strong due diligence at the core of what funders, such as the Victoria Foundation and the Vancouver Foundation, provide while also giving charitable organizations the flexibility to spend money on critical services and needs as they arise.

organizations, many on their front-line helping the vulnerable to meet basic needs. Others found new creative ways to help keep us connected through our schools, arts and culture, and our natural environment. The pandemic also shone a light into the cracks—racial and gender inequities, the housing and homelessness crisis, the opioid crisis, and food insecurity. “Unraveling” puts out a call to action whether by governments, foundations and funders, businesses, volunteers, donors, or the general public. There is a role for everyone as we collectively help local charities survive these times and find the path forward to thrive and create a vibrant, caring community for all.

That balanced approach is especially important during this emergency crisis. It’s time for those who are able to help pick up the stitches and strengthen the fabric of our communities. s

One of the key takeaways in the The impact of the pandemic report is that now is “an opportunity shone a bright light on the Scrivener_Unraveling.pdf 1 2021-03-08 11:34:57 AM for Trust-Based Philanthropy.” strengths of countless charitable

Sara Neely is the Director of Philanthropic Services at the Victoria Foundation.

Mission Delivery and Community Impacts

Unraveling: Nonprofits, COVID-19 and the Fabric of BC Communities In February 2021, the Victoria Foundation, in partnership with Vancouver Foundation and Vantage Point, released a report compiling survey results from over 900 non-profits in BC, including 123 organizations from the capital region.

Unraveling highlights how the vital charitable sector has managed to pivot services and keep doors open, but also points to alarming warning signs for the days ahead.

CMY

Visit the Publications page of our website to read the full 52-page report!

64% have a decreased ability

to deliver programs and services

58%

have an increased demand for programs and services

Human Resource Impacts

37%

report a decrease in staf ng levels

VOLUNTEERS

59%

have a drop in volunteer involvement

Operational Sustainability Impacts

48% are concerned about shutting down

Those most concerned about having to shut down are arts/culture, sports/recreation, small organizations, and organizations serving racialized people

victoriafoundation.ca

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BC Notaries Association

Volume 30 Number 1 Spring 2021

ELECTRONIC DOCUMENTS

ELECTRONIC WILLS, ENDURING POWERS OF ATTORNEY, AND REPRESENTATION AGREEMENTS

New Rules and Practice Tips Introduction

OVID-19 has changed the way many professionals are working, including Notaries and lawyers. With people staying home to reduce transmission, that has posed challenges for creating or updating Wills, Enduring Powers of Attorney (EPOAs), and Representation Agreements (RAs). It is important for people to be able to create Personal Planning documents to deal with potential incapacity or hospitalization. To help with that, the BC government passed ministerial orders and amended legislation to allow remote signing and witnessing of those documents. The legislation also allows for purely electronic Wills (e-Wills). E-Wills and Remote Signing of Wills On March 18, 2020, a ministerial order allowed for remote signing and witnessing of paper Wills. In July 2020, the BC government amended the Wills, Estates and Succession Act (WESA) to make the remote signing and witnessing of Wills permanent and allow the creation of e-Wills.

Volume 30 Number 1 Spring 2021

“The WESA e-Will amendments are based on uniform e-Will legislation developed by the Uniform Law Conference of Canada (ULCC), although they were enacted in BC slightly before the ULCC issued its own final version. Since those changes have been made to WESA, they will continue after the pandemic is over. The e-Will amendments to WESA were not yet in force at the date this article was written.”

For remote signing and witnessing, the Will-maker and the two witnesses must be in each other’s “electronic presence.” The amendments to WESA allow for e-Wills to be created. For e-Wills, there is no physical original copy of the Will and there can be many identical electronic copies that are all valid. The amendments specify how e-Wills can be changed or revoked. To change an e-Will, a new Will must be created. To revoke an e-Will, the Will-maker can • create a new Will; • make a written statement (electronic or paper) that the The Scrivener | www.bcnotaryassociation.ca

Sara Pon

Will-maker is revoking the Will, signed by two witnesses; • delete one or more electronic copies with the intention of revoking it; • destroy a paper copy of the Will in front of witnesses with the intention of revoking it; or • do some act that the Court determines under section 58 of WESA to have been done with the intention of revoking it, and the consequence of the act is apparent. The amendments to WESA also allow for both paper and electronic Wills to be signed and witnessed remotely using video technology. For remote signing and witnessing, the Will-maker and the two witnesses must be in each other’s “electronic presence.” That means • the parties must be able to see and hear each other; • the parties must be able to communicate simultaneously; • the technology must be of good enough quality that they can have a normal simultaneous conversation; TABLE OF CONTENTS

• the video technology can be a form of assistive technology for people who have hearing or vision impairments; and • some of the parties can be physically in the same location and others can be present through electronic means. To remotely sign and witness a paper Will, the witnesses would sign identical counterpart copies and observe the Will-maker’s signature. For e-Wills, the signature and witnessing can be done through e-signature programs as long as the signature happens in real time and the parties can communicate in real time. Remote Signing of EPOAs and RAs On May 19, 2020, the BC government created Ministerial Order M162 that allows remote signing and witnessing of EPOAs and RAs. That Order, under the COVID-19 Related Measures Act, is in effect until 90 days have passed since BC’s COVID-19 state of emergency has ended. For EPOAs, the document can be signed by the drafter and the witnesses remotely using video conferencing technology. The Order sets out the following requirements for remote signing and witnessing, • the EPOA must contain a statement that it was signed and witnessed according to Order M162; • the donor and witnesses must sign the EPOA in the electronic presence of each other; • the attorney and witnesses must sign the EPOA in the electronic presence of each other; • the witness for the signature of the donor and the attorney must be a lawyer or Notary; • some of the parties can be physically in the same location and others can be present through electronic means; and • parties can sign identical counterpart copies. For RAs, the document can be signed by the maker of the RA and witnesses remotely using video technology. The Order sets out the following requirements for remote signing and witnessing,

Notaries might be concerned that working with clients through video-conferencing technology or other remote means may increase risks, including undue influence. • the maker of the RA and witnesses can be physically in the same location or present through electronic means; and • parties can sign identical counterpart copies. Remote Client Work Tips Notaries might be concerned that working with clients through video-conferencing technology or other remote means may increase risks, including undue influence. For more information on undue influence, see CCEL’s blog postdated October 9, 2020. The Law Society of BC, BC Notaries, and the CLEBC have some tips for Notaries and lawyers who are working with clients remotely. Prior to the Meeting • obtain a clear copy of the client’s identification; • obtain any relevant information and documents from the client; • consider if the remote technology will provide an effective meeting for your client, considering the complexity of the legal issue, the needs of the client, the capacity of the client, and any accessibility needs; • consider the security of your video-conferencing software; • confirm in applicable legislation and rules that assessing capacity through remote technology is allowed; and • advise your client not to share the meeting link and to use a secure Wi-Fi network. During the Meeting • lock the meeting once everyone is present; • obtain your client’s consent for using video-conferencing; • ask the client if anyone is else present; • ask the client to move the camera around to confirm who is present in the room;

• the RA must contain a statement that it was signed and witnessed according to Order M162;

• get all persons in the room to identify themselves;

• the maker of the RA and witness must sign the RA in the electronic presence of each other;

• give plenty of time for the client to ask questions;

• the witness must be a Notary or lawyer;

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• ensure the audio and video are stable; • use screen sharing to go through documents and ensure your client understands;

BC Notaries Association

Volume 30 Number 1 Spring 2021

…be aware that it will be harder to assess capacity or undue influence if you have never met that client in person before. • be aware that assessing a client’s capacity will be more difficult when using remote technology;

George E.H. Cadman, Q.C.* 604 647 4123 | gehcqc@boughtonlaw.com With over 30 years’ experience, George makes the complex simple to resolve your real estate or corporate disputes. *Member of the Notaries Public Board of Examiners

Uniquely West Coast™

• assess for undue influence, but that should be part of assessing for undue influence through earlier stages of client interaction; and • be aware that it will be harder to assess capacity or undue influence if you have never met that client in person before. After the Meeting, • keep detailed records of the meeting; • give your client a copy of any documents you executed; • consider sending a written summary of what was discussed; and • consider if any follow-up meetings are needed during or after COVID-19. s Sara Pon is Legal Research Assistant at the Canadian Centre for Elder Law. Sources • The Law Society of British Columbia, “COVID-19 response,” “Risks and tips when using video-conferencing technology,” and “Video conferencing technology information” (website) • BC Notaries, “Zoom 101” (blog) • Richard Weiland, “Paper 1.1: Wills Formalities and the Fallout from COVID-19” in The Continuing Legal Education Society of British Columbia, Estate Planning Update 2020 (November 2020) Volume 30 Number 1 Spring 2021

“Knowledgeable and Capable” 604-538-3388 CammackHepner.ca #106 – 1656 Martin Drive Surrey, BC V4A 6E7 The Scrivener | www.bcnotaryassociation.ca

Gordon G. Hepner MA(ALS), Notary Public gordon@CammackHepner.ca

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CONTROLLING YOUR MINDSTORIES

Freedom from the Frantic Mind Carla Rieger

o you find yourself frantic a lot these days?

It’s not your external reality that causes franticness; the cause is your MindStories . . . your interpretation. The villain isn’t the external situation on the screen of your mind—it’s your projector. The current external reality is not the root of your issues . . . your subconscious stories are running the show—the MindStories that say you should be different, respond in a specific way, be envious of someone else’s good fortune, or get angry and frustrated—those are habitual, all-too-familiar emotional responses running in your MindStories. You need to escape the unresolved issues looping in the background of your mind. They are a form of distraction—a numbing— unresolved disharmony about choices you’ve made or continue to make that go against your core values in subtle and not-so-subtle ways. Some people run inner dialogues that they are not good enough in some ways. Society teaches us what we need to achieve in terms of looks, finances, career success, family life, and other ways of being. We may not feel perfect enough. There’s always something we can find about ourselves that is not good enough.

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We often use our electronic devices, the Internet, our work, our to-do list, and substances to numbout/drown-out the noise, but they are not a full-time fix. The moment there is silence, your inner attitudes and insecurities surface—the disharmony, the pain, the selfcriticism, the agitation, and/or the feeling something is not right—and there is the feeling of confusion about how to transform that noise.

We often use our electronic devices, the Internet, our work, our to-do list, and substances to numb-out/ drown-out the noise, but they are not a full-time fix. Usually the most effective way is to go through it—face it head-on— be willing to see the truth and be curious about what’s really going on. Maybe all the dragons we try to slay or escape are actually inner voices that need to be heard. Once heard, they can transform into something wonderful—a powerful creative force for positive change. Case in Point I travelled to a remote Indonesian island by a rough 4-hour boat trip. Local transport was on foot or by donkey cart; Internet and cell connections were impossible. BC Notaries Association

At first I thought, what a good excuse to unplug! After a couple of days, I hungered to check texts and emails—for some good distraction. I hadn’t been without my electronic devices in quite a long time and it became clear they were an issue for me. I started to wonder if the Internet and our devices create an addiction . . . and, when we don’t have them, we go into a tizzy. By day 3 without Internet, I had the feeling I’ve had at the end of a fast—headache and food cravings and I got cranky. So I went into the heart of my feelings; I processed all the hunger, negativity, and irritability until I came out the other side. I found I was fine without all that distraction, in fact I was happier and more peaceful. The trick is you can’t get to the peace place right away; you must cross the swamp to get there. At home, after my trip was over, I was connected again with all sorts of pinging sounds in my phone and laptop—I was back in the swamp. A college teacher friend asked her students to leave their phones outside the classroom, in a locked box. The kids went nuts . . . she could see them fidgeting, not knowing where to look or Volume 30 Number 1 Spring 2021

how to operate in a world without devices in their faces. Today I spend large chunks of my day offline . . . to show myself I don’t need it. Maybe there will come a time when the whole grid goes down and nobody has devices. What would we all do then—those of us who spend hours with eyes glued to glowing screens? I think we need to start getting used to a life where we might not have substances or devices all the time. It might be uncomfortable at first; the withdrawal might be a sweat-out but, if you can do it, you are no longer owned by the substance or device. You own it! We can break free of franticness, constant multitasking, split focus of our minds, and racing among Windows and apps and notifications and updates. It’s great training for the mind to find silence. There is joy and freedom and deep creativity to be found there. In the silence, in the now, is a different awareness and an expanded understanding of what’s possible in your life, what’s true, what’s not, and where nobody is influencing your thinking. When you practise staying present, you’ll quickly discover the different MindStories that run in your mind. Some are useful and practical in your life and some are not. Just like going through the applications on your computer and finding old programs you don’t use, you can delete the MindStories you don’t want to have the power to influence your life. We have packages of data for everything we have experienced in life—for example, the way we see the world, how we view success and failure, and how we behave toward others in challenging situations. Volume 30 Number 1 Spring 2021

Maybe you like the way you behave regarding your work—for the most part it feels right and good and you are aligned with your core values. You have a good MindStory around work. Or perhaps you don’t like the way you behave regarding a certain aspect of your work, such as prioritizing your time. If something feels bad or wrong, it may mean you’re out of alignment with your core values—you get frantic a lot and things are dropping through the cracks. If you bark at people you love, you know you have a bad MindStory that needs re-writing. Only you can know that. Once you’re aware of it and make an intention to change, life will bring you an opportunity to re-write that MindStory. It all starts with intention. For more detail, check out my book MindStory Inner Coach. The more you practise not escaping into the fantasy world of your unconscious MindStories, the more accustomed you’ll become to choosing the MindStories, roles, scripts, thoughts, and emotions you want. Free yourself of those unconscious, fixed stories that run your life—and that perhaps lead to results you don’t want. We can say, “This is what freedom from a fixed mind feels like. This is how freedom from closedheartedness feels. This is what unbiased, unfettered goodness feels like. Maybe I’ll get curious and see if I can go beyond my resistance and experience the goodness.” When we practise choosing the stories we tell ourselves, we can find new freedom to face uncertainty with power and purpose. s Carla Rieger is a motivational speaker, author, and coach who activates team leaders and businessowners to speak with power and passion to build a positive team culture. The Scrivener | www.bcnotaryassociation.ca

Winter 2020 | Volume 29 Number 4 Published Quarterly by the BC Notaries Association

29 years

Al-Karim Kara, President and CEO of the Land Title and Survey Authority of British Columbia

inside: Communicating and New Year’s Resolutions Publications Mail Agreement: 40010827

Winter 2020

I read your Winter 2020 edition of The Scrivener with great enjoyment. While I have found your past issues very informative, that one was of particular interest. Over my many years in the Estate, Retirement, Succession, and Philanthropic/ Charity Planning world, I have performed and filled roles that require active listening and communicating; the articles in the Winter issue are outstanding. Communicating is such an important part of the roles we play as leaders for our clients and peers as we strive to help better their lives. I look forward to reading your future issues. Keep up the great work and the production of an excellent publication. Thanks again, John Donnelly, CSA, CDFA, RFC

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HISTORY OF BC

The Interesting History of the Bridge in Quesnel, BC

t the start of the 20th century, a canoe served as a mini-ferry and provided the only way to cross the Fraser River from the town of Westside to the City of Quesnel. In 1911, the provincial government supplied the financing for a cable or chain ferry to go into service.

Quesnel canoe ferry Quesnel District Museum & Archives 1989.87.1

After extensive lobbying by local businessowners and after the provincial election in 1928, the new Conservative Government lived up to their election promise to see the work started; within 10 days the contractor in charge of building the structure arrived in Quesnel. On August 20, pile-driving started; concrete was poured for the first pier on October 13. With the mild Winter, the work continued and the last pier was poured in January.

Construction of the bridge started in 1928. Quesnel District Museum & Archives No. 1958.72.3

Unfortunately one fatality occurred. Stuart Wilson was killed January 23 due to a defective fuse while he was dynamiting large blocks of ice as they neared the bridge.

Quesnel Cattle Ferry Quesnel District Museum & Archives No. 1977.14.1

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Fortunately the river froze over January 28; that made the construction of the superstructure much easier. In February, a second accident occurred . . . Joe Rousseau BC Notaries Association

Ron Hyde

fractured his ribs and an ankle when a timber fell from the top of the bridge. Unfortunately in those times, safety was not a factor; hard hats and safety harnesses were not even considered. Although the original plans were for a steel bridge, in 1928 the decision was made to use wood. The Kersley Farmers Institute petitioned for the bridge timber to be cut locally but it was cut and prepared in Vancouver and shipped by rail to Quesnel. Each piece was cut to size and shape and a numbered plan was created to show where each piece was to be placed; the timbers were all treated with creosote. A major problem arose when the foreman in charge of the framing was discharged and he took the master numbered plan with him. Fortunately Bert Alcock, of the Department of Public Works, was able to recreate the master numbered plan from the numbered timbers and the Howe Trusses. The new bridge opened to the public March 8, 1929; the official opening became part of the annual May Day celebrations. The Fraser Volume 30 Number 1 Spring 2021

River walking bridge In Quesnel had an 831-foot span and was the longest wooden Howe Truss bridge in the world. At the time the bridge opened, traffic was limited to pedestrians, horse-drawn vehicles, and the occasional motor vehicle; the 10-ton load limit was quite adequate. A speed sign installed on the bridge is now part of the Quesnel Museum’s collection.

Bridge Speed Sign Quesnel District Museum & Archives Collection

The bridge stimulated the growth of West Quesnel and greatly aided with the Fall cattle drive when ranchers from the Chilcotin, Nazko, and other ranching areas drove as many as 400 cattle across it for auction in Quesnel. Previously, cattle and the accompanying cowboys swam across the river.

The Howe Truss: A Howe truss is a truss bridge consisting of chords, verticals, and diagonals whose vertical members are in tension. The bridge is in Quesnel, the major city between Williams Lake and Prince George. Westside is the neighbourhood across the Fraser River from Quesnel and the bridge connects the two together as they are one city.

grew, the bridge became inadequate for larger trucks, so stop lights were installed in 1954 to allow only single lane traffic.

The Mosquito Bomber…an airplane bomber that was a major asset for the allies during WWII Cattle crossing during the Fall cattle drive to Quesnel for auction. Quesnel District Museum & Archives 1993.83.25

Quesnel was the northern terminus for the British Columbia Pacific Great Eastern Railway. During World War II, it was an important link in Canada’s war effort. On the west side of the Fraser River, birch trees were harvested and shipped from Quesnel and used to make plywood for the construction of the Mosquito bomber. As the lumber industry Volume 30 Number 1 Spring 2021

The bridge stimulated the growth of West Quesnel and greatly aided with the Fall cattle drive when ranchers …drove as many as 400 cattle across it for auction in Quesnel. Lobbying for a new bridge was successful after the Cariboo Pulp Mill project was announced; the Moffatt Bridge was completed in 1971. The Scrivener | www.bcnotaryassociation.ca

The wooden bridge, a valued community asset, was maintained for pedestrians and is now the centrepiece of Quesnel s Waterfront Trail system. In 2010, the bridge was restored with funds from Western Economic Diversification Canada and the City of Quesnel; the maintenance extended its life by many decades. The decking and many trusses were replaced and one of Canada s best examples of outdoor programmable lighting was installed; the new lights use less power that would be used by two hair dryers. s History is Ron Hyde’s passion. Before he retired, he worked for the Liquor Distribution Branch and wrote a Reflections column for their monthly newsletter. A member of the B.C. Historical Federation for 20 years, he has written several articles for their BC History magazine and was their newsletter Editor for 42 issues. SOURCES Special thanks to Elizabeth Hunter and the City of Quesnel Museum and Archives for their great assistance. TABLE OF CONTENTS

STRATA LAW

Whose Strata Lot Is It Anyway?

ho qualifies as an “owner” of a strata lot may surprise you.

For those of you who serve on strata councils, this article may provide a helpful reference for situations you are bound to encounter. Strata lot owners have certain powers and duties. Owners can serve on council, vote at general meetings, request a hearing before council, and so on. Owners are also responsible to pay for strata fees, special levies, and certain other charges. In addition, certain categories of individuals can act for an owner in various situations. Some representatives acting on behalf of owners will take on all of the powers and duties of an owner, and others take on only some of them. For strata corporations that are self-managed and do not have a professional strata property agent, those situations are even more difficult to address. Ownership of a strata lot may change without the strata corporation being notified. We will discuss how that may occur and how a strata corporation can require owners to inform the strata corporation of a change in ownership or representation.

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We will also discuss why it is important for strata councils to plan how they will respond to and anticipate changes in ownership. Who is an Owner? To understand who qualifies as an owner of a strata lot, we first look to the definition of “owner” in section 1 of the Strata Property Act. trata Property Act, SBC 1998, S c 43, section 1 [SPA]: “ owner” means a person, including an owner developer, who is (a) a person shown in the register of a land title office as the owner of a freehold estate in a strata lot, whether entitled to it in the person’s own right or in a representative capacity, or (b) i f the strata lot is in a leasehold strata plan, as defined in section 199, a leasehold tenant as defined in that section,

unless there is (c) a registered agreement for sale, in which case it means the registered holder of the last registered agreement for sale, or (d) a registered life estate, in which case it means the tenant for life. BC Notaries Association

Elaine McCormack, Emily Sheard

The most obvious example of an owner is the person shown as the owner of a freehold estate on the title search and leasehold tenants, including an owner developer. There are also less obvious situations when a person is an owner. For example, an agreement for sale is registered as a charge on title. That means the registered holder of the last registered agreement for sale will be able to vote as an owner and can stand for strata council. The same is true for a tenant for life in a registered life estate. If there is a registered life estate on title, a tenant for life is the owner of a life estate, and is the “owner” of the strata lot during his or her lifetime. A life estate is created under a Will. Upon the death of the tenant for life, title to the strata lot passes through the estate to the remaindermen. For example, a strata lot owner may pass away and specify in a Will that his or her spouse will have a life estate in the strata lot. When the spouse with the life estate passes away, ownership of the strata lot will be determined based on the original owner’s Will. There may also be times where no one qualifies as an owner. For example, when the sole owner of a strata lot passes away and there is no representative on title for Volume 30 Number 1 Spring 2021

the strata lot, no one may qualify as an owner for a period of time. Strata councils should be prepared for situations when there may be no one who can vote at a general meeting for a strata lot, or no one from a strata lot is eligible to stand for strata council. Who Can Act for an Owner and in What Circumstances? 1. Individuals with Representative Capacity You will note that under the definition of “owner” in the Strata Property Act, the subsection concerning the person shown on the title of a freehold strata lot also includes those individuals shown in a representative capacity. Examples of different representative capacities that a person may have include an administrator, executor, and trustee in bankruptcy. Those individuals are considered owners under the Strata Property Act, meaning they may vote on behalf of an owner and stand on council. 2. Attorneys in Power of Attorney Situations A Power of Attorney is a legal document by which a person, referred to as the “adult” appoints an “attorney” to exercise certain legal rights of the adult. Some attorneys may be granted the power to vote on behalf of an owner at general meetings, and some may not. Generally, the attorney is not registered on title, but a Power of Attorney can specifically allow it to be. As a result, in certain circumstances, an attorney meets the definition of an owner under the Strata Property Act. In such circumstances, an attorney may be eligible to serve on the strata council. We will discuss below why that may be problematic, however. 3. Corporate Representatives Corporate representatives may also be eligible to stand for strata council pursuant to section 28 Volume 30 Number 1 Spring 2021

of the Strata Property Act, and may vote at general meetings on behalf of the corporate body that owns a strata lot. Strata councils should consider whether it is appropriate to require corporate representatives to provide the strata corporation with proof of a resolution of the corporation’s Board of Directors prior to serving on the strata council. 4. Conflicts of Interest When a representative or attorney is acting on behalf of an owner, there may be a conflict of interest between the duties that person holds to the owner, and the duties of a council member who must act in the best interest of the strata corporation. The strata corporation should obtain legal advice when considering whether a representative or attorney may serve on strata council. 5. Documentation In each of the above instances when an individual may act on behalf of an owner, strata council members should consider what documentation the strata council requires to confirm whether the representative has the authority to act. For example, council may want an owner to provide a copy of the Power of Attorney to establish that the attorney has the authority to act on his or her behalf, and to what extent the attorney can act for the owner. With respect to corporate representatives, strata council may want representatives of corporate owners to provide a duly passed resolution of the corporation’s Board of Directors providing them with the authority to act on behalf of the corporate body that owns the strata lot. How Can the Owner Change without the Strata being Informed? The strata corporation may not be informed when ownership The Scrivener | www.bcnotaryassociation.ca

of a strata lot changes because of a transmission, as opposed to a transfer. Under the Land Title Act, RSBC 1996, c 250, a transfer includes a conveyance, a grant, and an assignment. Under the Land Title Act, a transmission means a change of ownership that is effected by the operation of an act or law, Court Order, or change in a personal representative or trustee. Unfortunately, the exact situations when a transmission will occur are not described in the Land Title Act, as those situations are created pursuant to federal, provincial, and even municipal legislation. When there is a transfer of title to a strata lot, the strata corporation is generally put on notice that there will be a change in ownership when a lawyer or Notary requests a Form F – Certificate of Payment. When a transfer of a strata lot occurs, a Form F – Certificate of Payment signed on behalf of the strata corporation is submitted to the land title office, along with the transfer documents. When there is a transmission, a Form F – Certificate of Payment is not required by the land title office for the ownership to change. As such, the normal notification from a lawyer or Notary to the strata corporation or strata manager regarding a possible change in ownership does not occur. Another consideration when there is a transmission is that amounts owing to the strata corporation, even strata fees and special levies, may remain in arrears after the transmission occurs. That comes as a shock to strata council members, as strata fees and special levies must either be paid when there is a transfer or paid into Court as disputed funds in certain rare situations. TABLE OF CONTENTS

Why is it Important Now, More than Ever, to Know Owners and Those Who are Acting for Them? Today, council members are not as physically connected with owners and other residents as they were in the past. The COVID-19 pandemic has resulted in virtual meetings being the norm. The increased use of online meeting platforms also allow strata council members and owners to attend meetings remotely, removing the need to travel to different cities or to physically attend meetings altogether. Relatedly, council members may not be as connected to other individuals involved with the strata corporation as they used to be for other reasons. In large strata complexes with hundreds of strata lots, it would be quite an impressive feat for strata council members to know every owner, tenant, and occupant.

There has also been an increase in the number of mixed-use strata properties with residential and nonresidential owners, tenants, and occupants, which results in a less cohesive community. With the increase in the number of general meetings being held by electronic means, unfamiliar faces are popping up in virtual waiting rooms, waiting to be admitted to general meetings. Those individuals are expecting to vote on resolutions or stand for strata council, either as an owner or purporting to do so on behalf of an owner. Pursuant to the COVID-19 Related Measures Act, strata corporations may hold strata property meetings by “telephone or any other electronic method, if the method permits all persons participating in the meeting to communicate with each other during the meeting.”

On February 16, 2021, an Order in Council was made repealing that provision of the COVID-19 Related Measures Act, effective on July 10, 2021. If a strata corporation wishes to hold general meetings by electronic means after July 10, 2021, then the strata corporation must pass a bylaw to do so pursuant to section 49 of the Strata Property Act. When strata corporations may safely hold general meetings in person again, unfamiliar faces may appear at those meetings, as well, in a variety of circumstances. For instance, executors, attorneys under a Power of Attorney, and corporate representatives may attend. Given the weakened physical connection among individuals involved with strata corporations, strata council members, as well as some inevitable circumstances discussed above, it makes sense to

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consider who qualifies as a strata lot owner and who can act for a strata lot owner in a more formal way. It also makes sense to consider how strata corporations can amend their bylaws to place more responsibility on owners and those who can act on behalf of owners, to inform the strata corporation of their identities and to provide documentation. What Steps Can the Strata Corporation Take to Require Notification of Changes in Ownership and Representation? Section 4 of the Schedule of Standard Bylaws to the Strata Property Act requires an owner to provide the strata corporation with the owner’s name, strata lot number, and mailing address outside of the strata plan, if the owner has one, within 2 weeks of becoming an owner.

responsible pursuant to the strata corporation’s bylaws to provide timely notification of their identity and contact information when there is a change in ownership or representation and proper documentation backing up the change.

Here are three examples of changes that may be made to section 4 of the Schedule of Standard Bylaws to require owners to inform the strata corporation of a change in ownership or representation.

The strata corporation may adopt bylaws requiring owners to inform strata corporations of changes in ownership and representation in various situations, including the following.

• Notification required by an owner to the strata corporation of transmission or transfer of title within 2 weeks of becoming an owner, in addition to providing contact information

• Transmissions (executors, beneficiaries, life estates, trustees in bankruptcy)

• Notification required by an owner to the strata corporation of transmission or transfer of title, prior to exercising the powers or duties of an owner, including but not limited to, voting at a general meeting, appointing a proxy or standing for council, even in circumstances when less than 2 weeks have passed since the person became an owner

• Registered agreements for sale • Representatives of corporate owners • Powers of Attorney • Tenants with powers under section 148 of the Strata Property Act

In our view, owners and their representatives should also be

• Company receivers

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Volume 30 Number 1 Spring 2021

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• Specifying documentation required by the strata corporation, for an owner who is providing notification to the strata corporation of a transmission or transfer, 48 hours prior to exercising the powers or duties of an owner A strata corporation may also want to include a revised version of section 27 of the Schedule of Standard Bylaws in the strata corporation’s bylaws to require an owner to provide documents prior to a general meeting, when the owner has not previously given notice of a change in ownership or individual representing an owner. Strata council should have proper documentation to review regarding whether a person qualifies to vote at a general meeting. Consideration should be given to how the documentary requirements will be met when a general meeting is held by electronic means.

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Strata council should also consider the privacy implications of the collection, use, disclosure, retention and destruction of emergency contact information, and alternative contact information. When can the strata corporation disclose that information to individuals who act on behalf of owners?

The strata corporation may wish to adopt a bylaw and a privacy policy, if it has not done so already, to allow the strata corporation to obtain consent from owners to collect alternative contact information for broader use and disclosure purposes than those described in PIPA.

Under section 18 of the Personal Information Protection Act, SBC 2003, c 63 (PIPA), a strata corporation may only disclose personal information about an individual without his or her consent in certain circumstances.

If your strata corporation would like to adopt bylaws to address the above issues as well as a privacy policy, it is recommended that the strata council seeks legal advice to draft bylaws and a privacy policy that meet the unique needs of your strata corporation.

Those circumstances include “if the disclosure is clearly in the interests of the individual and consent cannot be obtained in a timely way,” (section 18(1)(a), PIPA) and “if the disclosure is necessary for the medical treatment of the individual and the individual does not have the legal capacity to give consent,” (section 18(1)(b), PIPA).

BC Notaries Association

This article is for education purposes only and does not constitute legal advice. s Elaine McCormack is a lawyer, mediator, and arbitrator with Wilson McCormack Law Group. Emily Sheard is an associate lawyer with Wilson McCormack Law Group.

Volume 30 Number 1 Spring 2021

WILLS & ESTATES

Photo credit: Matthew Chen

Special Costs 2021 Trevor Todd

t is a common public belief that the losing party in litigation pays the winning parties’ legal fees, but that is not the case unless the Court makes an extraordinary award of special costs. The usual award of costs is to the winning party on a “party and party” basis tied to a scale of units in the Supreme Court Rules for steps in the litigation process that essentially awards only a portion of the actual legal fees. Special costs provide a much greater degree of indemnity than the usual award of costs. In Negas v. Yehia 2021 BCSC 254, the Court awarded approximately $1.2 million in legal fees against the respondent in a protracted family case concerning $19 million assets that lasted 7 years. The award of special costs was essentially an award of full indemnity to the wife of her legal fees by reason of the “reprehensible conduct” of her partner during the course of the litigation that resulted in the award of special costs against him. What Are Special Costs? The nature and purpose of special costs were described by our Court of Appeal in 567 Hornby Apartment Ltd. v. Le Soleil Restaurant Inc., 220 BCCA 69 (“Le Soleil”). Volume 30 Number 1 Spring 2021

“Special costs are not compensatory; they are punitive: Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA 177 at para. 56. The purpose of special costs is to censure and deter litigation misconduct, not to compensate the plaintiff: Tanious v. The Empire Life Insurance Company, 2019 BCCA 329 at para. 53.”

Special costs are not generally awarded unless the parties’ conduct has been reprehensible during the course of the trial… “Special costs are fees a reasonable client would pay a reasonably competent solicitor to do the work described in the bill: Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d) 309 (S.C.), para. 44. A special costs award is to provide an indemnity to the successful party, but not a windfall; Gichuru v. Smith, 2014 BCCA 414, at para. 155. Although there may be a close relationship between actual legal expenses and special costs, they are not necessarily the same: Tanious v. The Empire Life Insurance Company, 2019 BCCA 329, para. 49. That is because legal fees a lawyer can recover from a client The Scrivener | www.bcnotaryassociation.ca

are determined on a subjective standard, pursuant to the Legal Professions Act, whereas only fees that are objectively reasonable in the circumstances are recoverable as special costs: Gichuru, para. 155.” REPREHENSIBLE CONDUCT Special costs are not generally awarded unless the parties’ conduct has been reprehensible during the course of the trial, including conduct that is scandalous, outrageous, or other forms deserving of rebuke. In Mayer v. Osborne Contracting Ltd. 2011 BCSC 914 at para. 11, the Court set out those circumstances that warranted the attraction of special costs: 1) where a party pursues a meritless claim and is reckless with regard to the truth; 2) where a party makes improper allegations of fraud, conspiracy, fraudulent misrepresentation, or breach of fiduciary duty; 3) where a party has displayed reckless indifference by not recognizing early on that its claim was manifestly deficient; 4) where a party made the resolution of an issue, far more difficult than it should have been; 5) where a party in a financially superior position to others brings proceedings, not with a reasonable expectation of TABLE OF CONTENTS

a favourable outcome, but in the absence of merit in order to impose a financial burden on the opposing party; 6 ) where a party presents a case so weak that it is bound to fail and continues to pursue its meritless claim after it is drawn to its attention that the claim is without merit; 7) where a party brings a proceeding for an improper motive; 8 ) where a party maintains unfounded allegations of fraud or dishonesty (including undue influence);

of special costs and will instead refer the matter to a registrar to conduct a hearing. Registrars develop knowledge and skill in the assessment of legal bills and Court costs that are seldom matched by that of a trial judge. It is, however, within the jurisdiction of a trial judge to assess the amount of costs. Rule 16-1(2) sets out matters that apply on an assessment of special costs. On an assessment of special costs, a registrar must a. allow those fees that were proper or reasonably necessary to conduct the family law case, and

9 ) where a party pursues claims frivolously or without foundation.

b. consider all of the circumstances, including the following,

Smithies Holdings Inc. v. RCV Holdings Ltd. 2017 BCCA 177 held that special costs should only be awarded to punish reprehensible conduct in the course of the litigation, and should not be awarded for pre-litigation conduct.

(i) the complexity of the case and the difficulty or the novelty of the issues involved;

The Court also noted that there may arise circumstances where special costs may be awarded because of reprehensible conduct giving rise to the litigation, particularly where the fruits of the litigation do not provide any appropriate compensation in relation to the reprehensible conduct. Allegations of pre-litigation fraud or undue influence where there is scant evidence, have been known to incur awards of special costs. In Wilson v. Lougheed 2012 BCSC 1166, the Court awarded special costs for 4 days of the 14-day trial against an executor who crossed the line in a highly charged Wills Variation case advanced by his daughter. Registrar’s Criteria in Assessing Special Costs Generally speaking, the trial judge will not specify the amount

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(ii) the skill, specialized knowledge, and responsibility required of the lawyer; (iii) the amount involved in the case; (iv) the time reasonably spent in conducting the case; (v) the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case; (vi) the importance of the case to the party whose bill is being assessed, and the result obtained; (vii) the benefit to the party whose bill is being assessed of the services rendered by the lawyer; Applies to a Team of Lawyers The test to be applied does not necessarily limit special costs to fees that would be charged by one lawyer only. BC Notaries Association

It now is quite common for a law firm to have more than one lawyer work on a file. Delegating some of the work to a competent lawyer who bills at a lower hourly rate than the lead lawyer can benefit the client by reducing overall legal fees. When assessing special costs, the overall handling of the file is to be considered to determine if the fees claimed as special costs are objectively reasonable in all the circumstances. That standard applies whether one lawyer or more than one lawyer performs the legal services claimed as special costs. The fees charged by the claimant’s lawyers are fees a reasonable client would pay reasonably competent counsel for the work done to conduct this case. When a trial judge orders special costs of a proceeding, the award of special costs includes the cost of any special costs application and any subsequent proceedings to assess costs unless the Court otherwise orders. SUMMARY OF APPLICABLE PRINCIPLES Westsea Construction Ltd. 0759553 BC Ltd. 2013 BCSC 1352 summarized some of the principles: 1) the Court must exercise restraint in awarding special costs; 2) the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order; 3) simply because the legal concept of reprehensible conduct captures different kinds of misconduct does not mean that all forms of misconduct are encompassed by this term; 4) reprehensible conduct will likely be found in circumstances where there is evidence Volume 30 Number 1 Spring 2021

of improper motive, abuse of the Court’s process, misleading the Court, and persistent breaches of the rules of professional conduct and the Rules of Court that prejudice the applicant; 5) special costs can be ordered against parties and nonparties alike; and 6 ) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a bonus for further compensation for that success. The question in every case is, whether on a consideration of the substandard conduct of the party making the allegation and the conduct of the litigation itself, the person or persons against whom the order is sought has acted in a manner that is sufficiently reprehensible to warrant chastisement of the Court. FIDUCIARIES Special costs are routinely awarded to a party who is a fiduciary in circumstances where there has been no reprehensible conduct by that party or any other litigant. Mawdsley v. Meshen 2011 BCSC 923. For example an executor/ trustee, in the absence of misconduct, is ordinarily entitled to recoup from the estate the legal costs reasonably incurred in litigation such as in a Wills Variation claim where the executor must be named as a party. In Re. Campbell Estate 2015 BCSC 774, an administrator was removed and ordered to pay special costs of the application on the basis that his conduct throughout was reprehensible and called for rebuke. CONTINGENCY FEE In an ICBC case, Norris v. Burgess Oct.14, 2015 Vancouver registry Volume 30 Number 1 Spring 2021

M123216 BCSC, the plaintiff was awarded special costs for a 20day jury trial in the amount of the plaintiff’s contingency fee based on the award of $462,000 in damages. We don’t know the percentage of the fee agreement but it is likely in the range of 25 to 33 1⁄3 per cent. The defendant insurance company had produced videotapes of the plaintiff in 2013 and 2014, but contrary to a Court Order to disclose all surveillance videos on or before October 23, 2015, a video from 2015 was not disclosed until after the third week of trial. CONCLUSION Two trends have emerged with respect to the issue of Court costs in estate litigation over the last 20 years. 1) The usual rule that costs follow the event, as opposed to the estate paying all the parties’ costs, has become the norm. Exceptions occur such as when the litigation is as a result of the testator’s actions. 2) The increased willingness of the Court to award special costs as a means of discouraging and chastising a litigant whose conduct is considered by the Court to fall within the classification of reprehensible. Reprehensible conduct is defined broadly and encompasses misconduct ranging from scandalous and outrageous at one extreme, to milder forms of misbehaviour warranting judicial rebuke at the other. Stated bluntly, the Courts are extremely busy and a litigant who wastes the Court’s time runs a significant risk of having to pay the other parties’ legal fees by an award of special costs. s Trevor Todd restricts his practice to estate litigation. He has practised law in Vancouver for 46 years. The Scrivener | www.bcnotaryassociation.ca

BC Notaries

Speak Your Language BC Notaries around our province offer a great many noncontentious legal services (see page 11) in an impressive variety of languages. ENGLISH ARABIC BOSNIAN CHINESE DANISH FARSI FILIPINO FOOKIEN GERMAN HINDI ITALIAN KOREAN PERSIAN POLISH PUNJABI

AFRIKAANS BENGALI CANTONESE CROATION DUTCH FIJIAN FLEMISH FRENCH GUJARATI HUNGARIAN JAPANESE MANDARIN PORTUGUESE ROMANIAN SERBIAN

RUSSIAN SPANISH SHANGHAINESE SWATOW SWAHILI SWEDISH SWISS GERMAN TAIWANESE TAGALOG TAOSHAN TAMIL URDU TELEGU UKRANIAN

TURKISH VIETNAMESE

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PEOPLE Bruce had a wonderful sense of humour and a generous spirit. fisherman, farrier, and BC Notary Public. Margot is a Notary, too.

Bruce Peter Rutherford November 30, 1948, to April 3, 2021 Bruce and Margot settled in rural Courtenay in the early 1970s to raise a few horses. Bruce had many occupations during his life— Burnaby municipal works labourer, professional musician, millworker, screen-print worker, commercial Wayne Braid “In 2006, Joyce Helweg (former BC Notary) sent me A Walk Through Time, a history book she had co-authored with her friend Barbara Robin. It was produced by the Friends of the National Historic Site Society. It was written for the 200th birthday celebration of Fort St. James. Joyce enclosed a note thanking me for all the help I had given her throughout her training to be a BC Notary. As I always do after reading a book, I recycled it to a used book store for others to enjoy.

He enjoyed years of team roping until his horse Quincy Margot Rutherford stopped having fun. Bruce invested in a mountain bike and took to the trails with joy in his heart—when bikes were hard-tail and weighed a ton. His mountainbiking friends dubbed him “Bike God”; for his 50th birthday, they built a bike trail and named it after him.

He is survived by a tight family core including son-in-law Jody, grandchildren Fiona and Declan, sisters Wendie (Jim) and Rita (Grant), and many nieces and nephews. He also leaves many beloved friends. Bruce was so kind-hearted; he will be well remembered with love and admiration. s

“The last week in March 2021, I received a call from Christine, a Prince George Citizen newspaper reporter who was tracking down the ‘Wayne’ in the note that I had left in the book. The reporter wanted to do a story on how the book got from Fort St. James to Scotland!”

for the community dinner of 500 people on the Saturday night. It was an amazing celebration!

Joyce Helweg “Barbara Robin and I wrote stories about all the old heritage houses still standing in Fort St. James in 2006. On the weekend of the massive birthday party, we held a tour and talked about the history of each house. We were asked to be the Masters of Ceremonies

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Bruce was briefly treated for cancer. He was able to speak on the phone to as many friends and family members as he could prior to his chosen date and time of death. He passed, surrounded by his girls . . . wife Margot and daughters Morgen and Abby.

Bruce had a wonderful sense of humour and a generous spirit. He loved Winter and skied

Send us a photo from your next trip!

Mt. Washington and at other resorts in our province. He taught his kids and grandkids to ski and marvelled at their abilities. He and daughter Abby went on many annual ski trips together.

BC Notaries Association

“Wayne (former CEO of the BC Notaries) was always a ray of sunshine throughout the BC Notary education program. Being from the North, he already understood the problems we could encounter working in a remote area with very few services. I was not at all surprised that the book had reached Scotland. As writers we are very aware that each publication is a gift to the world. It is such fun to make a connection with someone in a faraway place who has acquired one of our books. s

Where in the World Has The Scrivener Been? Volume 30 Number 1 Spring 2021

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