BarTalk | February/March 1994

National CBA Gender Equality study moves into phase two NEWSLETIER OF THE CANADIAN BAR ASSOCIATION, B.C. BRANCH

FEB/MARCH 1994

VOLUME& NUMBER2

The National Canadian Bar Association is moving ahead to implement its gender equality action plan. The blue print for action in the months ahead includes drafting the terms of reference for a study on racism, producing educational materials on model policies to assist lawyers in the workplace, and improving the representation of women and minority groups within the Association.

The National CBA will also develop a comprehensive strategy for lobbying to ensure that other organizations are involved in the process. In particular, the National Association will press governments to take steps required to eradicate gender bias

Client relations tip .............. 2 President's Message .......... 3 UBC Conference ................. 4 Legislative Update .............. 5 SectionTalk ......................... 7

Registry Q&A .................... 10 TQM for skeptics .............. 11

New West Bar 100th ......... 11 Vacation specials! ............ 12 Risky Business ................. 12

in the substantive law and the administration of justice.

The report, Touchstones for Change: Equality, Diversity and Accountability, chaired by former Supreme Court Justice Bertha Wilson. was presented to CBA Council members at its Annual Meeting in Quebec in 1993. The report examines gender bias in all areas and levels of the legal profession.

At the Association's three-day Jasper Mid-Winter Meeting in late February, close to half of the 235 resolutions arising from the Wilson report were passed.

Due to time constraints, the remaining 135 resolutions will be debated at the CBA's upcoming Annual Meeting in Toronto this August. These resolutions re-

late to corporate counsel, government legal departments, and private practice.

Council debate at Jasper focused on five chapters of the Report dealing with: substantive law and procedure, the Canadian Bar Association; law societies; family law practice; and the judiciary. These final chapters of the Wilson Report were debated first as Council considered it appropriate to "put its own house in order'' before proceeding to other aspects of the profession. Of the 101 resolutions considered at this meeting, 26 were passed on consent, 70 were adopted after debate or amendment, 4 were defeated and 1 was withdrawn.

(Please turn to page 2)

Law Day •94 Update "'Family Violence: A Public or Private Matter?'" is the focus of a special forum hosted by CBC's Kevin Evans at the Vancouver Provincial Court Open House on Sunday, April 24.

Activities at the Open House begin at noon with 100 new Canadians to be sworn in at a special Citizenship Court Ceremony.

There will also be student mock trials, special video presentations, diSplays from justice-related organizations and the finals of the provincial Barry Sullivan Law Cup Public Speaking Contest.

The "Dial-A-Lawyer'' program has gone provincial with lawyers in Vancouver, Victoria, Prince

George, and Campbell River providing free legal information on the afternoons of April23 and 24.

The Student/ Lawyer Mentor program has matched up over 85 lawyers and students for a half or full-day session for students to find out "what a lawyer does in a typical day."

A wide-range of Law Day activities are also planned in Richmond, Campbell River, Prince George, Nelson, Williams Lake, New Westminster, Maple Ridge, Fort St. John. Kamloops, Cranbrook.

Kelowna, and Victoria. Plan to volunteer or attend these Law Day activities in your community.C

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COMMUNICATIONS TIP

Telephone contact sets first impression "One-two-three-four." Say it again. "One-two-three-four."

When you have to say it again and again, it will become a mind-numbing activity. You won't think about what you are saying. The words will run together. It will be an automatic mechanical meaningless process. What is the object? The object is to communicate to the listener, "one-two-three-four."

What is the result? What is being communicated is something like, "won-tooth-reefer."

What has prompted this admittedly not-too-monumental observation? During the course of my workday, I am contacted frequently by lawyers wanting to discuss some problem or concern. Needless to say, I · spend a lot of my time on the phone and am obliged to return a lot of calls. Most lawyers "enjoy" the same experience.

I frequently find, in returning these calls, that the telephonereceptionist who answers recites the firm name in the mechanical names-run-together manner that I describe above.

HI happen to know the name of the firm, I may recognize it in the indistinct jumble of words I have just heard. HI don't know the name of the firm I am calling, I am no better off after hearing the name spoken. I still haven't the foggiest idea of what firm I have reached. Being told that I have reached "Bird in a dirty garden" is not very helpful and is hardly positive P.R. for the firm of uBurton, Doherty & Gordon."

While this firm is fictional (I hope!), I am not exaggerating the kinds of sounds I frequently hear.

Very often the first contact that a firm has with "the outside world" is by telephone. Moreover, many of the people with whom a law firm comes in contact (clients, potential clients,

other lawyers, etc.) deal only by telephone and know the firm only by name.

cidentally, I have considerable sympathy in this regard) will probably do the trick.

First impressions are not only important, they are critical.

Call your own firm sometime and specifically listen to the receptionist's greeting as though you were an apprehensive first time caller. H you experience something similar to what I describe, a friendly reminder to the receptionist (with whom, in-

Slongfemow.

by Barry Vogel, Q.C.

This article, "From the Office of the Practice Advisor, " appeared in a recent issue of the Newsletter of the Law Society of Alberta and Canadian Bar Association (Alberta Branch) and is reprinted with permission of the author and publishers.

Gender Equality study (continued from page 1) ing maternity and parental leave policies; and adopting policies dealing with sexual harassment;

Highlights from the debate include adoption of the following recommendations: •

•

that CBA develop a national strategy to eliminate gender bias from the justice system; that the CBA develop programs and resources on equality issues;

•

that law societies monitor access, entry and advancement of lawyers within the profession;

•

that law societies enact rules against discrimination;

•

that steps be taken to improve the status of family law in schools and within the profession;

•

that a reporting and disciplinary system be developed to deal with discrimination by judges and against other judges or counsel.

A number of recommendations were adopted without debate including: •

urging law firms to review client promotion practices to ensure equal opportunities for women; establish-

•

urging law schools to use gender inclusive language and remove stereotypical examples in curriculum;

•

urging law societies toremove gender and race bias from course materials and including material on gender issues and discrimination in Bar Admission programs.

The B.C. Branch Gender Equality Committee and elected Council members actively participated in the Jasper debates and brought forward comments and suggestions raised by members through the consultative process the B.C. Branch initiated prior to the Jasper meeting.

As well, the Committee members are reviewing the approved Jasper resolutions and will recommend an implementation and communication strategy for these resolutions both here in B.C. and on a national basis.

Copies of the approved Jasper resolutions are available on request from the B.C. Branch office (687-3404). C

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Beyond the barriers Shaped by our geographical isolation from the rest of Canada and much of North America, British Columbia is.regarded by many as a state of mind and state of being as much as it is a political and geographical entity.

Bounded by our formidable mountains and the Pacific Ocean and separated by interior geographical barriers, our physical isolation provides some justification for the perception that British Columbia looks inwards at all levels - community, provinciaL national and international- without every really seeing "the bigger picture."

President's Message

and the Cowichan Valley.

These exchanges with lawyers from different towns, cities, provinces, states and countries have produced important information and a free flow of ideas.

They have confirmed for me the importance of looking beyond our environment for new ideas and trends that will impact on our profession and the efficient administration of justice.

One significant observation for me was that despite our physical separation, the problems of our profession and the issues faced by lawyers in our Kootenays have a remarkable similarity to those faced by lawyers in Kenora, Ina ten week Ontario period from late January and Kent to late March Washing"Self-lmpo•ed l•olstlon will of this year, ton. There deprive u• of· •lgnNICIInt opmy Branch are a mulportun/Ue• to teach and /esm presidential titude of from our colleague• acrou duties took common Canada" me several concerns hundred and probmiles on lems being trains, buses, planes and cars to faced by Bar associations and over a half dozen events with organizations across North lawyers from a wide variety of America. Their members are backgrounds and locations. asking these associations to handle and provide solutions I had the opportunity to meet, for many similar matters. Our share with and learn from hungeographic isolation will not indreds of lawyers from all provsulate us from these problems. inces and territories of Canada, and many from outside of CanI have concluded that formal and regular contact is essential ada, at the CBA Mid-Winter Meeting in Jasper. I had a simito exchange information and lar opportunity at an earlier ideas between local and county meeting with the members of bars and their respective Prothe Alberta Branch of the CBA vincial Branches or State Associations. This is particularly at their Mid-Winter meeting in Calgary. Very recently, we iniimportant in British Columbia, tiated a dialogue and exchange to compensate for the physical between our Provincial Branch separation faced by a significant and the Washington State Bar percentage of our Bar and Association when I attended a caused by our geographical barmeeting of their Board of Govriers. We presently attempt to ernors in Bellingham. My edufoster this direct contact cation was rounded out with through our annual Local and visits to local and county bar County Bar President's meeting, meetings in Kelowna, the County reports to Provincial Kootenays, New Westminster Council, and Branch presidential visits.

]. Parker MacCarthy B.C. Branch President 93/94

Solutions developed in one part of our province can be successfully applied to other regions.

Provincial Branches must meet with and learn from each other on a national level about issues, trends, approaches and solutions to problems facing our profession and affecting the efficient administration of justice.

We now accomplish this through our representatives on the National CBA Executive, strong representation at the National CBA meetings and by inter-Branch visits. These links are vital. Self-imposed isolation will deprive us of significant opportunities to teach and learn from our colleagues across Canada.

Increased formal and regular contact between legal practitioners in the U.S. and Canada, through their organized Bars, particularly at the national as well as the state and provincial levels, is not only desirable, but necessary. This contact will be prompted by the similarity of the issues which are presently or will shortly be faced by the legal profession in these different jurisdictions. It will also be prompted by the growth of freer trade at an international level and the possible emergence of sub-national economic trading

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President's Message (continued from p1ge 3) blocks typified by the 11 Cascadia" concept which ineludes B.C., Washington State, Oregon, and Alaska. We will be seeking to increase our working contact with neighbouring U.S. Bar Associations.

Professional organizations which represent the interests of the legal community at the national, provincial and local levels must be well organized, well funded with available surpluses, fiscally responsible, receptive to new ideas and be able to respond in a timely fashion to new challenges. These organizations must move to coordinate their efforts and resources.

We cannot afford, financially or otherwise, to work in isolation.

No more does physical separation equate to being in the 11 backwaters" when it comes to providing leadership or initiating change. We can take some satisfaction in the numerous initiatives and achievements of our National CBA, our B.C. Branch, the Law Society of B.C., and some of our Local or County Bar Associations. The positive results of our organized collective efforts are becoming increasingly evident.

We have recently seen the fast response by the National CBA which resulted in a public retraction and an apology from the Minister of National Revenue David Anderson for his intemperate remarks linking lawyers with tax cheaters. It can be observed in many initiatives which have found their genesis in British Columbia and have been exported to other jurisdictions, such as the Law Foundation concept. adequately funded Special Compensation Funds, and comprehensive mandatory liability insurance programs. The Law Week programs organized by Local and County Bars throughout British Columbia and coordinated by the B.C. Branch are a successful

model for public legal education in North America.

Increased involvement by individual B.C. lawyers in the activities of the CBA, the Intemational Bar Association, the Commonwealth Lawyers Assodation, and the Association of Trial Lawyers, exposes our members to a broad range of experiences, issues and ideas.

These activities are desirable to overcome our geographic isolation and are necessary in the rapidly changing international climate. The forthcoming joint meeting of the National CBA and the Commonwealth Law Conference scheduled for Vancouver during the summer of 1996, will present all of us with an excellent opportunity to participate and to broaden our perspectives.

Despite our geographic isolation, B.C. lawyers, individually and through our professional organizations have in the past. and are capable in the future, of providing superb leadership to the legal profession at a national and international level. We must not be constrained by either our geographic or perceptual isolation when it comes to providing creative solutions to the challenges facing our profession and the justice system.C

There's no biz like law biz The UBC Law Alumni Associa-

tion has two events planned for this spring. Continuing its se-

ries of quarterly breakfast, the Association will host Mr. Justice Lamer on Tuesday, May 10 at 7:30a.m.

On May 7, at the Faculty Club, the Association will present a variety night of song, comedy and some serious relief. Talent lined up so far are J.J. Camp, Q.C, who will be the emcee; Catherine Best; Georgialee

Lang; Linda Leong; Sandra Lundell; Freddie Pletcher; Murray Tevlin and his Surf Ltrwyers from Mars; Deborah Satanove; and an all-lawyer Mozart Oboe Quartet, consisting of Victoria Gray, Ted Kuchta, Patricia Osoko and Marie-Louise Fast.

Ticket information for both events is available from Nicole Chipman at Blake Cassels (fel: 631-3322 or FAX: 631-3305) C

Directory update Effective February 21, 1994, the new Ambulance Service headquarters is located at: B.C. Ambulance Service 2nd Floor, 1810 Blanshard St., Victoria VSV 1X4.

Tel: 952-0888; FAX: 952-0905 Contact Kristina Hausberg, Oerical Support, Legals (9520896) for further information. C

Material culture In flux A conference oninternationaland domestic law and policy will be held at UBC on May 20 to 22, 1994. This international conference will explore the law of material cultural heritage. Organizers report that several developments have created a new urgency to reflect on material cultural law and policy: physical risks arising from economic development, warfare, environmental crises, and political instability; a profound re-evaluation of the role of museums in industrialized nations; the enormous growth in the international art market and its relationship to the theft and illicit transportation of cultural materials; and the assertion of rights to own and possess cultural material by countries of origin and indigenous people.

For further information or to register, contact Professor Robert K. Paterson, Faculty of Law, UBC; Tel: 822-3905. C

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You will see a reference in some cases to the number of the Bill when it was introduced in the House. This number may be different from the chapter number of the new Act which is quoted after the title of the Act and which is the proper citation for the Act. The Bill Number has been given to you to make it easier for you to note up the Bills you may have in your library.

Every effort is made to ensure the accuracy of the information provided to you in this article but the information should not be relied upon. Lawyers should refer to the specific legislative or regulatory provision.

Ann McLean

ACTS IN FORCE Foresters Amendment Act, 1993, S.B.C. 1993, c.17, (Bill 34), amends the Foresters Act, R.S.B.C. 1979, c.141, expanding the definition of the "practice of professional forestry", adding a provision to state the purpose of the association, making organizational changes, providing for the issuance of two classes of special permits, one to allow foresters from outside the province to practice forestry and the other to allow qualified persons to practice limited types of forestry work, increasing the penalties for offences under the Act, setting out the process for dealing with complaints from the public and establishing a disciplinary procedure.

Consumer Protection Statutes Amendment Act, 1993, S.B.C. 1993, c.39, (Bill21), amends the Consumer Protection Act, R.S.B.C. 1979, c.65, clarifying that a direct sale does not include a sale by telephone, mail, fax or any other method that does not involve face to face contact, providing for the licensing of direct sellers, including a requirement that an applicant for a licence provide satisfactory security and allowing a direct sales contract to be cancelled within a one year period if the seller is not licensed, and providing additional protection for purchasers from direct sellers, including a provision that certain contracts be in writing and contain required information. sectiotts 1(b), (c), ~md (e) 1111d 3 • 8 in forceAptil1, 1994

itt force ]~m1111ry 27, 1994

Medical and Health Care Services Act, S.B.C. 1992, c.76, revised the constitution of the Medical Services Commission to include representatives from the government, the B.C. Medical Association and the public. sectiott 2.1 of the Act itt force Febnulry 11, 1994

&sidential Tenancy Amendment Act, 1993, S.B.C. 1993, c.68, (Bill67), amends the Residential

Tenancy Ad, S.B.C. 1984,c.15, in:ter alia (a) repealing s.44.1, providing for payment to the registrar; and (b) allowing the minister to establish a Manufactured Home Park Dispute Resolution Committee comprised of a chair and vicechairs none of whom are a tenant of nor an owner of a manufactured home park and other members 1 I 2 of whom are owners and 1/2 of whom are tenants of manufactured home parks. sectiott 20 tnul thtJt pm-t of sectiott 22 erttJCtins s.45. 72 of the ResiderttitJl Tett~~t~cy Act itt f~ Felmult'y 25, 1994

REGULATIONS TO NOTE Social Service Tax Act: Social Service Tax Amendment Act (No. 2), 1993, B.C. Reg. 84/58, the Social Service Tax Act Regulations is amended repealing the provisions in Division 8, relating to legal services and providing (a) effective February 4, 1994 a disbursement for legal research or secretarial and other support services is a prescribed disbursement and is subject to tax (replacing a similar provision which did not refer to legal research); (b) effective February 4, 1994, fees and charges for faxing, printing and photocopying are excluded from the purchase price for legal services and are not taxable, provided the charges are reasonably related to their cost incurred by the person providing the legal services (replacing a similar provision);

(c) effective April1, 1993, legal services are exempt from tax if they are provided to a law firm or notary firm by a lawyer or notary em-

6

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Legislative Update (continued) played exclusively by the firm under contract or as an associate counsel if the purchase price is recovered in the sale price for the legal services directly from the firm's client (replacing a similar provision); (d) effective April1, 1993, the portion of legal aid services which is paid for by an individual to whom they are provided is exempt from tax (replacing a similar provision); (e) for the period from June 1, 1992 to Febru-

ary 25, 1993 and since April1, 1993, certain legal services purchased by an Indian, a band or aboriginal organization are exempt from tax (a new provision); and

Free waste reduction kit available Industries, commercial business and institutions contribute approximately 60 per cent of the solid waste generated in the Greater Vancouver Regional District. Both the province and the region have set similar goals to reduce waste generation by 50 per cent by the year 2000.

You can obtain the kit.

~duce,

Reuse, &cycle- It's Your Business" at no cost. The kit consists of brochures with easy-tofollow steps to: find out what you can recycle; reduce waste generation through changes in purchasing practices; and much more!

Call the CBA (B.C. Branch) office at 687-3404 to order your free kit. c

Information rights week set for April The B.C. Freedom of Information and Privacy Association (FIP A) and the B.C. Library Association will present Information Rights Week in British Columbia, Aprilll to 17, 1994.

(f) for the period from June 1, 1992 to Febru-

ary 25, 1993 and since April1, 1993, a corporation is exempt from tax in relation to legal services provided by a lawyer who is an employee of a related corporation (a new provision).

B.C Reg. 40/94 deposiUd Februmy 4, 1994, with effective dRtu ll8 noted above

Forest Act; Forest Amendment Act (No. 2), 1993, B.C. Reg. 147/88, the Silviculture Regulation is retroactively amended and then replaced by B.C. Reg. 42/94, the Silviculture Practices Regulation, with expanded provisions governing silviculture planning and implementation.

B.C Reg. 41/94 effective AprilS, 1988; B.C Reg. 42/94 effective Febnulty 7, 1994

The week will focus on issues of public access to information and the extension of freedom and information and privacy legislation in British Columbia.

Activities include public forums on health care records: access

and privacy concerns; and, our vanishing privacy: is our personal information out of control.

For a complete schedule of events, call the FIPA office at 739-9788. c

REPORTS AVAILABLE The Legislation and Law Reform Committee has received a copy of the following reports from the B.C. government. Information may be obtained from the source noted or from Ann McLean, B.C. Branch Legislation and Law Reform Officer in Victoria (598-2860).

Report

Source

Three independent evaluations of the Forest Practices Code

Ministry of Forests {Economics and Trade Branch- 3878610)

Report of the Matkin Inquiry into the VSE

Crown Publications (386-4636) - cost $15.00

Report by Professor Mark Thompson on the Employment Stattdards Act

Ministry of Skills, Training and Labour (356-7274)

Report of the B.C. Advisory Committee on the Status of the Artist

Ministry of Culture -Public Affairs (356-6305)

Update on the Environmental Assessment Project

Environmental Assessment Project (952-0575)

Municipal Sewage Discharge Criteria (sumtnilry of technical papers)

Ministry of Environment.

Lands and Parks - Municipal Waste Reduction Branch (38799_1Zl

• conflict, or contentious issues and subjects;

I

• immediacy, or late-breaking topical stories; •

novelty;

~

• locality, materials with a local impact or localized angle;

l!!i

• danger, which feeds public appetite for sensation;

:i

iS

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Shelley Bentley

llps on how to deal with the media Bob Spence of Media Wise and Della Smith of PJS Communications addressed Vancouver Criminal Justice section members on the workings of the media and gave tips on how to communicate an accurate message.

In broadcasting, format drives

content and is supreme; content is secondary to format, which is secondary to time. It is important then if you want to remain unedited, not to give the reporter anything extra. Verbosity means the reporter will edit to fit time constraints.

In the print format, the lead par-

agraph must encompass the 5 W's- who, what, where, why and when. Content is eliminated from the bottomofthestoryup, until it fits the space provided. What is left must tell the story.

Deadlines are all-pervasive. In radio, the individual reporter will face six to eight per day; in television, one per day, in print, one or two per day.

Spence pointed out that unlike lawyers who have a single professional standard, journalists / reporters / interviewers are subject to no standard or code of ethics. He categorized the factors which drive media:

•

celebrity;

• human interest, which embraces the edict "comfort the afflicted."

Della Smith then highlighted some of the "do's" and "don'ts" of giving interviews which are applicable to all media. Always ask the reporter requesting the interview what the focus of the piece will be. This will allow you to prepare properly. Never say "no comment," since that creates a perception of hiding something; say instead "the matter is before the courts and I am unable to discuss it." Never say ":Don't quote me." It leaves the reporter wondering whether you refer to the news itself, the identity of the spokesperson, or the use of direct quotes.

H a question contains offensive language or words you do not like, do not repeat them even to deny them. lJo not let a reporter put words into your mouth. Generally only the response of the person being interviewed is broadcast, not the question. As long as you do not repeat the offensive language it will not be printed or broadcast. Analyze the questions asked. Many are "loaded" or "springboard" or rumour-mongering or speculative. Control techniques in answering include "bridging" - (yes, but...); "hooking" - (many things are important, the first thing is ...); "flagging" - (the most important thing is ...); and "fogging: - (calculated ambiguity).

Be prepared. Write down your key answers and relevant points before an interview takes place.

Bring notes to help you stay on track. Remember that you're the expert. You know the subject better than the interviewer. Most journalists are not specialists in your field, so you should not expect them to know much more than the general public about the topic. If a reporter raises a potentially negative issue remember that they are probably "fishing."

Deal with uninformed issues directly then move on to positives as quickly as possible. Don't use legalese or technical language.

Answer the interviewer's questions briefly and as directly as possible. Be factual. IJon' t try to outsmart the interviewer. The interviewer is responsible for getting clear and concise information so that it can be accurately conveyed to the audience. If he or she doesn't understand you, he or she can't use what you say.

At the conclusion of the interview, don't ask what the interviewer will do with the material.

He or she is usuallyinnoposition to make a commitment immediately following an interview. It depends on what other news breaks at the time, what the boss thinks of the idea, and dozens of other factors.

New scheme proposed by OLRC to extend property sharing laws to non· traditional couples The Report of the Ontario Law Reform Commission entitled "Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Ad: Accommodating a Diversity of Family Forms" was dis cussed in a recent meeting of the Gay and Lesbian Section.

In this Report the OLRC recom-

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SectionTalk (continued) mends extending the property sharing provisions now only applicable to married couples to non-married couples and gay and lesbian couples who decide to voluntarily register under a new registered domestic partnership scheme. It also recommends that various types of domestic contracts be legally available to gay and lesbian couples. The Report makes provision for the enforceability of these contracts and recommends allowing couples to contract out of sections of the Family Law Act.

active step to register as domestic partners.

Given the complex politics within the lesbian and gay community, where disagreement continues over whether community members should ask the law to assimilate their relationships with those of heterosexual couples, the OLRC sees this registration procedure as an alternative. Boyd noted that the academics who wrote the background paper in the Report were aware of these concerns but seem to have' taken the pragmatic view that as long as a couple-based piece oflegislaAccording to Susan Boyd and tion,suchas the Family LawAct,is Keith Farquhar, who presented the Report to the Section, the reg- . going to remain then those gay and lesbian couples who wish to istered partnership option has take the benefits of the legislative two advantages: scheme should be able to do so.

1) It avoids any inappropriate The OLRC is dear that the key assumptions that gay and lesbian intent is to prevent the economic relationships parallel heterosexexploitation of one by the other. ual spousal relationships; and Many family law critics have ar2) It leaves the institution of margued that the Family Law Act type riage unaffected constitutionalof scheme primarily benefits ly. In this scheme registration wealthier couples and at the same does not depend on the existence time detracts from political presof a sexual relationship. Anyone sure on the state to redistribute can register as a couple, for exwealth. Although Boyd finds that, ample, two sisters. on the whole, the Report is very progressive, Farquhar thinks that Voluntary registration reflects it has fundamental problems changing social values and the which must be addressed. He increasing diversity of types of questions why the report covers families. It also coincides with only support and property divithe Charter and the development sion and only deals with the Famof human rights jurisprudence. ily Law Act. Farquhar suggests The Report supports the concept that if one looks at the whole of family values not marriage picture, including all issues arisalone. It argues that the essence ing out of partnerships, the idea of the concept of family is intimaof registering domestic partnercy, mutual economic independships may not be sustainable. The ence, and living together ina dose, OLRC provides no detail on how personal relationship that is of the registration scheme should primary importance in both perbe set up, maintained, and what son's lives. the long-term results are. FurUnmarried heterosexual couples thermore, the Report allows for can register anytime they want, registration of partnerships to be but after three years, or after a unilaterally revoked. Farquhar child is born from the relationsuggests that this is a real probship, the couple is automatically lem for the weaker party. There registered. With gay and lesbian is no discussion about the consecouples it will never be automatquences of revocation. Unilaterically assumed that they are al revocation arguably neutralizspouses after a lengthy period of es the entire scheme. cohabitation. There must be an

Canadian Real Estate Association plans new rules for disclosure of agency relationships The B.C. Real Estate Association is introducing in 1994 a massive program of education involving all real estate licensees, to meet a requirement of the Canadian Real Estate Association's Code of Ethics which will become effective in 1995.

The proposed requirement will require all persons licensed under the Real Estate Act who are members of a Board, to disclose fully the licensee's relationship to the parties involved in a real estate transaction. Gerald Neely of Pearlman and Lindholm gave a thorough presentation in a recent Vancouver Real Property Section meeting on the legal considerations involved in this new development.

A brochure delivered to the parties will be the principle method through which the agency relationship or lack of it, and the duties of the agent, will be made known to parties to a transaction.

The licensee will have an obligation to explain the contents of the brochure to the party with whom the licensee is dealing, and to obtain a written acknowledgment from that party of the receipt of the 路 brochure. A likely consequence of this proposed disclosure will be the emergence of a number of different forms of agent representation.

Neely notes that while the law is dear that an agent can't act for both parties without their knowledge and consent, the fact that the current Multiple Listing Contract provides for appointment of the selling agent as a sub-agent who is paid by the vendor has obscured the actual role of the real estate licensee in some transactions. Some licensees have considered their roles to be those of

9

SectionTalk (continued) facilitators who put parties together to effect sales. Duties of both confidentiality and disclosure are disregarded innocently.

If the assumption has been that the current listing contract made the selling agent the agent of the vendor, the courts are leading the way toward a full examination of all facts to determine the real relationship existing between agent and principal. The test for the agency relationship may be whether the selling agent developed the necessary relationship of trust and confidence with the principal and not what the listing contract stated.

The direction this issue is taking in Canada has been influenced by trends in the U.S. In the U.S. two approaches have been taken.

First, the majority of states have opted for the adoption of "alternative agency relationships." For example,somestatesprovidethat all members of a real estate board are deemed to be agent for the purchaser, With the exception of the listing agent and except where the listing agent represents both with their consent. Other states stipulate that the members are all agents of the vendor unless the buyer acknowledges in writing that the listing agent represents the buyer as well. Because of the confusion arising from this first approach a second set of approaches has been taken to create something other than an agency relationship. Commonly these cast the licensee as a facilitator or mediator, or an independent contractor. The object is to reduce the Realtors duties and liabilities.

Such non-agency approaches have not become popular partly because of a concern about loss of protection of the public.

The approach in Alberta in the last several years has been to eliminate sub-agency and to provide by the listing contract that all members of a board (except the selling agent) are agents for the buyer. Dual agency is permitted by agreement between the parties. Dual agency occurs not only

where one sales person acts for both vendor and purchaser, but also where two sales people in the same office act for the vendor and purchaser separately. It may arise where the licensee acting as listing agent for the vendor then acts as a seller's agent in locating a home for the vendor. The problem of dual agency is magnified when property is listed with one branch of a multi-branch agency.

By consenting to dual agency a vendor and a purchaser will have agreed, upon signing the disclosure acknowledgments, to limit the agent's duties of confidentiality and disclosure to both of them.

The agent will not be able to disclose the price a vendor will accept or the purchaser will offer, or the motivation on the part of either party for their decision to sell or buy, or personal or confidentialinformationreceived from either party.

According to Neely, single and dual agency documents together with proposed seller's agent and buyer's agent contracts are now undergoing trial use in an area of the Vancouver Real Estate Board.

It is expected that they will be available for examination and comment by conveyancers as soon as they have been adopted by the B.C. Real Estate Association.

Leading Canadian administrative law experts to visit Vancouver Two of Canada's leading authorities on administrative law will be visiting Vancouver at the invitation of the Administrative Law Section. Professor David J. Mullan of Queens University will speak on April 18 and the HonourableRobertF.Reidwillspeak on June 14, 1994.

Administrative law is one of the fastest developing fields of practice in Canada. Decisions of administrative tribunals impact all aspects of life and can have a profound effect on individuals as

well as companies. Provincial administrative tribunals are powerful and range from the Workers Compensation Board, the Public Utilities Commission, and the Environmental Appeal Board.

Federal tribunals include theCanadian Radio and Telecommunications Commission, the Canada Transport Commission, the Immigration Appeal Board, the Pensions Appeal Board and many other federal bodies exercising control over all aspects of commercial and public life in Canada.

Professor Mullan is a leading scholar in the area of administrative law. He will speak on the role of lawyers advising administrative tribunals.

The Honourable Robert F. Reid has had a distinguished career as a lawyer and as a judge of the Ontario High Court. Mr. Justice Reid will be discussing current practice developments in Canadian administrative law.

For more information on these events, please contact James M. (Tim) Mackenzie, co-chair, Administrative Law Section at 6827474. To register for these events, send your cheque for $36 and your business card to Palbinder I<. Shergill, Pidgeon Schroder & Company, Suite 1119-808 Nelson St., Box 12168, Vancouver V6Z

2H2.

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Bluman appointed to new Commission B.C. Branch member Barbara R. Bluman has been appointed to the new tripartite Medical Services Commission She is one of three members of the public representing the interests of the beneficiaries on the Commission Bluman is currently chair of the Emergency Medical Assistants Licensing Board. She has been active in the CBA as past chair of the Workers' Compensation Section and has also served as vice<hair, Workers' Compensation Review Board and chair of the Human Rights Board of

Inquiry.

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10

Your Registry Questions Answered Di'CJOt'Ce Act Sectiott 2

Q: Does a â&#x20AC;˘ child of the marriage" include a part-

time community college student, 19 years of age?

A: This issue was recently canvassed by Master Joyce in the decision Farden v. Farden, (unreported) New Westminster Registry 0031221. Responding in the negative, Master Joyce set out a list of eight inclusivecircumstanceswhichwouldassisttheCourt in concluding whether or not an individual would be considered a "child of the marriage" within the meaning of Section 2(b) of the Divorce Ad. These factors are: 1. whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; 2. whether or not the child has applied for or is eligible for student loans for financial assistance; 3. the career plans of the child, i.e .. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; 4. the ability of the child to contribute to his own support through part-time employment; 5. the age of the child; 6. the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; 7. what plans the parent made for the education of their children. particularly where those plans were made during cohabitation; 8. at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

NB: The definition of "child" under the Family Relations Ad is a person under the age of 19 years.

RJde53(4)

Q: Where is the authority to refer a matter (question) to the court when the District Registrar chooses not to exercise his or her discretion under a specific rule?

A: While Rule 53(4) does not specifically give the power to the Registrar, in Kulessa v. Borgman, (1978) 6 B.C.L.R 'UJ7 at 267, Hutcheon, J. said: "The registrar chose not to exercise his discretion under the rule and referred the matter to the court."

Rule 32(9) also allows a master, registrar or special referee to seek "the opinion of the court on any matter arising in the hearing." ~

Q: Are District Registrars under any obligation to provide written reasons following a hearing upon request of counsel or the parties when an appeal is being contemplated or filed?

A:. Once an appeal from a Registrar's decision has been filed, written reasons will be provided on

request. Alternatively, the Registrar may choose to provide a copy of his / her bench book notes. The Registrar will not provide both. The Registrars' view that we will provide a written decision or notes but not both (except by the order of the Court) is supported by the cases ofRobertshawv. Schuman and Altman (1981) 21 B.C.L.R. 314 (B.C.S.C.) and Smith Hutchinson Gaw and Partridge v. Van't Reit (1985) 64 B.C.L.R. 41 (B.C.C.A.).

In the latter case, Chief Justice Nemetz points out that where a party decides to appeal (page 45) "... and no reasons have been delivered by the judge, counsel are always at liberty to ask the judge to give written reasons or obtain his notes. H this is done this court is better able to deal with the matter." (emphasis added).

While Registrars attempt to keep good notes of the evidence, the notes are nowhere near verbatim. The primary purpose of the notes is to act as an aid to the Registrar in drafting his / her report or decision. The registrar should not be put in the position of being "note taker" for the parties. Robertshaw is sometimes cited as authority for the principle that the Registrar's notes are "the record" of the proceeding.

In that case, however, Berger, J. was dealing with a case where no record of any kind was made. Witnesses were not sworn, there was not recital of evidence, there was not indication of the Registrar's findings, and there was no written decision.

Our view is that receiving sworn and other evidence, making our own notes, then setting out a summary of the evidence, our findings and decisions meets the requirements of Robertshaw.

RJdel

Q: Can a Plaintiff by way of Counterclaim issue a

Garnishing Order before Judgment?

A:. Yes. Rule 1 defines "Plaintiff" to mean a person who commenced an action and includes a Plaintiff by way of Counterclaim.

Leg4l Professimt Act Sectimt

71(5Xt~)

Q: Can a registrar review a client's bill if there is a judgmentissued against the client for the amount of the bill.

A:. No. Section 71(5)(a): "Where (a) judgment for the amount of the bill has been given in an action ... the bill shall not be reviewed unless the Supreme Court finds that special circumstances justify a review of the bill and orders the bill to be reviewed by a registrar."

'"'Y interesting or lllfUBJUU tpUIItit:ms, pleMe directly to /CHI'"'â&#x20AC;˘ Power, ""''"'gw 1WgistrAr progmms, lAw Courts, 850 Burdett Ave., VictoriR V6W 1B5.

If you lulve wri~

11

TQM for skeptics: international panel simplifies complex topic "What is business doing about 'quality'?" and "What do businesses expect from lawyers?" were the initial questions posed to two corporate clients at the recent Managing Partner Network Dinner Meeting.

Sandy Hall, coordinator of Chevron's legal Quality Improvement (QI) initiative, and Bill Purcell, Chevron Area Manager, Wholesale Marketing, and part of the implementation team of QI at Chevron Canada, outlined Chevron's commitment to QI at all levels of the organization.

Stan Carter, president of Fireflex Manufacturing Ltd, represented the smaller corporate client at the meeting. He stressed that FireFlex has a continuing "quality control" program directed at converting his customers into "raving fans." At the top of his list is the lawyer who's interested

enough in the firm to visit the plant and understand the practical issues the company faces.

A second panel discussed the practical applications of TQM within law firms. Panelists included Roy Williams, James Neill and Robert Jones, Q.C. Roy Williams, a principal in The Counsel Network, outlined five criteria that indicate a firm has an effective "quality" program in place: 1.

you accept that clients and not the lawyer (law firm) defines quality;

2.

there is a continuous process to determine how and what each clients defines as quality;

3.

your firm measures every client's satisfaction on a continuous basis;

4.

there is genuine accountability in your firm- a process that provides timely and meaningful feedback of performance on individual files; and

5.

there is a system to use the information gathered to implement changes as to how work is performed.

James Neill, partner with Davis Wright Tremaine in Portland, is chairmanofthe280-lawyerfirm's Quality Council. With his extensive experience in TQM implementation in a large firm, he said although some partners are skeptical, the firm continues their commitment to "quality." He said successful implementation of quality in a law firm requires five conditions: 1.

2.

New Westminster Bar celebrates centenary A special dinner to honour and commemorate the centenary of the New Westminster Bar Association was held on April12, 1994 at the Westminster Club.

An entertaining group of speakers provided a historical perspective of the New Westminster Bar Association over the last 100 years.

An informal reception and historical display preceded the dinner held at the New Westminster Courthouse Library. IJ

client-centred approach to the practice; leadership from the top;

3.

extensive education of all members;

4.

long term commitment (more than two years); and

5.

willingness to change the way work is produced.

Robert Jones, Q.C., executive director of the Canadian Corporate Counsel Association, concluded the evening by reviewing the issue of quality from the perspective of Corporate Counsel. He discussed how law firms must "partner" with their corporate clients to increase the effectiveness of legal services.

The Managing Partner Network is a program of The Counsel Network.

In addition to dinner meetings, the network prooides members with resources, information and support in the "business of the practice of law. " Meetings are scheduled in Vancouver in October 1994 and in Calgary and Winnipeg in May 1994. Call 244-9315 or toll-free 1-800-COUNSEL for further information about the Managing Partner Network. C

12

Member Services offers vacation specials ~~Q'(\

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s~e\a\~\\e6 \0 ~9 0

~ete11e

Beat the summer heat and unwind on the Shuswap Lakes!

Waterway Houseboat Vacations, a participant in the B.C. Branch Resorts Discounts Program, is offering special rates for B.C. Branch members. Details of this special offer are outlined in the brochure included in this BarTalk mailing. The offer in the brochure has been extended to April 30 so that you can enjoy a holiday in 1994 at the 1993 Waterway Houseboat's published rates!

The Resorts Discount Program is endorsed by the CBA (B.C. Branch) Member Services Committee. Please refer to Page 17 in your B.C Branch Directory for a complete listing of resorts providing discounts to B.C. Branch members. C

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Vantage Travel is offering an exclusive opportunity for B.C. Branch members to discover the roots of our language, law and culture. This two week journey includes special sightseeing, events and private functions. Included in the itinerary are London, Edinburgh and Dublin with accommodation, sightseeing, special teas, and a gala farewell dinner and show at Jurys Cabaret included in the complete package cost!

Departures are on August 16 or September 20, 1994. Call Vantage Travel at 1-8~33-0399 for complete details of this exclusive tour.

Vantage Travel is endorsed by the CBA (B.C. Branch) Member Services Committee. IJ

Product of the Month Document binding madeeasyl Reports, presentations and other documents look more professional when properly bound. International Binding and Laminating Systems, Inc. provides simple-to-use systems that create bound documents that open flat and are easy to file. Information on these systems is included with this issue of BarTalk or call 5383273 or toll-free 1-800-663-8184 for further details. IJ

rate-commercial practice,. will be presented on May 6, 1994 in Vancouver, with subsequent presentations in Kelowna on May 27, 1994 and in Victoria on June 3, 1994. This course is the third in the series and is based on those problems which the Law Society and its insurers have identified as giving rise to reports and claims against members in the areas of corporate and commercial practice. This area is the most costly area of practice for the insurers, giving rise to almost 25% of all reports and almost 39% of all reserves and ~y足 ments in connection with claims.

Counsel Network endorsed in Alberta

A detailed course brochure and registration information is available from CLE by calling 6693544 or 1-800-663-0437. c-

The Counsel Network, a nation~legal consul!ffig and recruiting firm, has recetved the exclusive endorsement of the CBA (Alberta Branch).

&fllllk is published by the British Columbia Branch of the Canadian Bar Association, lOth Floor- 845 Cambie Street Vancouver, B.C. V68 5T3

Endorsed by the CBA (B.C. Branch) Member Services Committee since 1990, The Counsel Network is the first, and only, legal consulting firm to be endorsed by a Bar Association in North America. The Counsel Network provides a broad range of management consulting and recruiting services to lawyers, law firms and corporate legal departments anywhere in Canada.

Forfurtherinformationabout'The CounselNetwork,caiiSteveNash or Roy Williams in Vancouver at 244-9315 or toll-free at 1-800COUNSEL. IJ

Avoiding claims and complaints As part of its risk management series, the Continuing Legal Education Society is offering a new course this spring aimed at members practising in the area of corporate and commercial law.

"Risky Business: avoiding claims and complaints in corpo-

Tel: (604) 687-3404 FAX: 669-9601 Editor: Limy HnetlaJ, CommuDirector 687-3404 Legisllltion tmd Uno kform Oft~ialtions

ficer:

Ami McLelm (Victoria) 598-2860

SectilmTIIlk Editor: Shelley Bentley, Mehrille & Yeung 6853881 AlisflliT Ellgle Photo 1ry (688-8867) is the CfA"'(B.C.

Branch) official photographer.

C Copyright the British Columbia Branch of the Canadian Bar Association-1994.

The B.C. Brtmeh of the Csmlldilm &r AssocUrtitm rqtresents uoer 7,500 1Rwyers TDithm British Co-

lumbill. The B.C. Brmu:h is dtdiimprcroe tmd promote tiCcess to justia, to m1iew legisliltimt, initilde lllfD reform met~SUres tmd lld'Dti1U% tmd imprcroe the lldministnztUm of justia. On beluUf Cided to

of the profrssion, tlte B.C. Brmu:h

works to imprOTJe tmd promote knowledge, skills, ethictll sflmdards tmd weU-being of members of the legtd profasicm tmd promotes the interests of its members.

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