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Newsletter of the Canadian Bar Association (B.C. Branch) October 1995 Vol. 7 • No.5

INSIDE President's Message ... 2 Section Talk ............... 3 Charity Golf ..... ... ....... 6 Registry Q&A ..... ........ 8 Senior Lawyers ......... 10 PracticeTalk ......... ... . 11 Paging Project ....... ... 13 Legislative Update ... . 15 Provincial Council Highlights ............... 19

National Trust Annual Team Trophy winners at Annual Golf Tourney (from left): Steve Nash, Doug Clark, Bill Phelps, Denis Racine.

Gordon Proudfoot beats legal aid drum in Vancouver egal Aid in Canada is "starved for cash and hungry for justice," according to Gordon Proudfoot of Halifax, national president of the Canadian Bar Association. Proudfoot told the annual meeting of the B.C. Branch Sept. 15 that lawyers need to speak in a unified voice to ensure equal justice for all in the face of "slash and burn" economic policies of governments across the country. He suggested the proceeds of fines paid for various offences be directed to improving Canada's justice system, rather than going into general government revenue. Appearing later on the Bill Good Show on CKNW Radio, Proudfoot said justice in Canada is "a dollar issue" that suffers from a shortage of judges and a shortage of courtrooms. ¡ Asked if the public should fund an appeal on behalf of convicted murderer Paul Bernardo, he said the right to justice is paramount. "Bernardo's appeal should be publicly funded. These rights are for everyone. That's our universal system," he said, pointing to cases such as that of Donald Marshal, wrongly convicted and later released after serving years in prison for murder.

Proudfoot said that although the CBA and Parliament are on record as opposing capital punishment, it doesn't mean 25 -year sen- Gordon Proudfoot tences are enough. CBA national president. "Democracy is the final word on capital punishment. If people want it, they'll have to send MPs to Ottawa who will support it." In an address to B.C. Provincial Council Sept. 16, he said next year's Joint CBA/Commonwealth Law Conference in Vancouverwill be the largest convention in CBA history, with more than 3,000 delegates. Proudfoot also was interviewed by Vicki Gabereau during his B.C. visit, a program broadcast across Canada by CBC Radio Sept. 18.

Bench & Bar Dinner Nov.16 CBA members are invited to attend the 11th Annual Bench & Bar Dinner to be held this year on Nov. 16 at The Law Courts Inn in Vancouver. John Waddell, President of the B.C. Branch, and Grant Burnyeat, Treasurer of the Law Society of B.C., note that space is limited and tickets will be allocated on a first-come, first-served basis. Tickets are $50 per person, the dress is business attire, and telephone orders will not be accepted. The event begins with a reception at 5:45p.m. (cash bar) followed by dinner at 6:30 p.m. (wine included). If you plan to attend, order tickets promptly by sending a cheque payable to the Canadian Bar Association (B.C. Branch), lOth Floor, 845 Cambie Street, Vancouver, B.C. V6B 5T3.


PRESIDENT'S MESSAGE

CBA represents a diverse range of interests

John Waddell , CBA (B.C. Branch) president 1995/96.

aving newfound responsibilities canalter your view of the world. A few days ago I made the return trip from Victoria to Comox so that my son could fire hockey pucks at other children. Along the way, I became preoccupied with the signage posted by lawyers and law firms. Many were drawing attention to solo operations and small partnerships. The locations were various: strip malls, ground floors of motels, storefronts. There was a sense of Canadiana about them. The offices, and I presume the lawyers themselves, seemed very much part of the fabric of their communities. Their presence was immediate and tangible. The lawyers I was taking notice of are those the CBA has traditionally represented. They are known to others in their towns and cities and may be lucky enough to be viewed as wise counsel in all manner of disputes and dilemmas. Without meaning to patronize lawyers in small towns, the CBA now recognizes that its role as a representative body has expanded significantly. The Branch must struggle to effectively speak on behalf oflawyers practicing in all manner of circumstances, environments and disciplines. Some aspect of this has been achieved by conscious effort, some of it by the natural ability of a democratically conceived body to adjust to the needs and demands of its constituency. The makeup of this year's Executive Committee of the Branch is an important indicator of the changing face of the profession. The executive consists of eight members. Four are women, four appear to be men. Two of the female executive members have recently given birthone to a boy the other a girl. None of the men are expecting anything other than the vagaries of advancing age. Here is a little background to illustrate what I'm talking about: · EMILY REID, Q.C.- An experienced prosecutor with the Department of Justice in Vancouver, Emily also serves as a Bencher, is the mother of two boys and the spouse of David Jones, a Vancouver police officer. She serves as Vice-President of the Branch. KERRY-LYNN FINDLAY- Kerry-Lynn practices with Connell, Lightbody ofVancouver, primariI

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ly as a family law practitioner. Along with her spouse, Brent Chapman, she parents four children, one of whom is the infant girl referred to above. She is Secretary-Treasurer. ERIC RICE, Q.C. - A general practitioner with the mid-sized Richmond firm of Campbell, Froh, May & Rice, Eric passed on from the position of President of the Branch in August of this year. He and spouse, Ann, have three children. Ann is a counselling consultant. JUDITH MILLIKEN- Judy toils with the Attorney-General's Ministry as a prosecutor and is the proud mother of a brand new bairn, Laughlin Todd (see above). Married to lawyer Trevor Todd, Ms. Milliken is an officer of the Executive and has been particularly active in the areas of gender equality and multiculturalism. GORDON TURRIFF- The "large firm mentality" is espoused to the Executive by Gordon because of his position with the 45-member Vancouver firm of Douglas, Symes and Brissenden. Mr. Turri££ and Burnaby Crown Counsel, Ellen Gerber, have three children with mostly red hair. Gordon is an officer of the Executive, serves as our liaison with the Law Society and chairs the Branch Planning and Priorities Committee. MARY MOUAT- Mary is a founder of the Quadra Legal Centre Victoria and practices as a family law litigator. She has long been active in Section affairs and, as another officer, is responsible for co-ordinating Section activity throughout the Branch. Ms. Mouat also sits on the Law Courts Education Society Board. Her partner in life is Don Miller, a District Supervisor with the Permanency and Planning Branch of the Ministry of Social Services. GREG STEELE - Greg has experienced a wide variety of practice environments in Vancouver, including a stint with McCarthy, Tetrault. He now pursues litigation, on his own hook, with a focus on personal injury matters. The Branch Legislation and Law Reform Committee has thrived under his leadership over the past four years. He remains the officer liaison to that same committee and will look after our relations with the local and county bar associations. Greg and his spouse, Susan, have two teenaged children. The representative capabilities of the Branch Continued on page 9

BarTalk Vol.7 No. 5


A practical framework to accommodate lawyers with family responsibilities

Shelley Bentley

At a recent meeting of the Gender Issues Subsection, a paper by Celia Gorlick, counsel to the Federal Business Development Bank, was presented on the legal duty to accommodate lawyers with family responsibilities. Her paper was originally presented during a session at the Manitoba Bar Association's MidWinter meeting (Feb. 3, 1995) and has also been submitted as a background paper to the Working Group established by the Canadian Bar Association to review this topic.

s. Gorlick began by stating that the operation, the duration of the accommodation law obligates private law firms, pri- and the number of claimants. The ability to vate law departments and government accommodate may be different in a two-lawyer law departments to accommodate firm than in a fifty-lawyer firm. To prove undue lawyers with family responsibilities hardship, a law firm will have to demonstrate who practice within their organizations, so long that the cost of accommodation is so substantial as the accommodation does not result in undue that it would alter the essential nature of the hardship to the organization. firm's practice or substantially affect the viability She noted that discriminatory treatment of of the firm. According to Ms. Gorlick the imporlawyers with family retant aspect of this approach sponsibilities has a major is its focus on the viability of ... the law obligates impact on the career of these the firm as a whole rather than on the individual posilawyers,notjustin the monprivate law .firms, private tion from which the issue etary sense, but in other law departments am/ govways. There is often a perarose. The courts will focus ernment law departments to ception that these lawyers on the cumulative effects of accommodate lawyers with are not as committed to the the accommodation. The law also provides that where practice of law as are other family responsibilities ... lawyers. They may notrethe organization has taken ceive the same caliber of reasonable steps to accomwork as full-time lawyers and this inevitably modate a lawyer, and the lawyer involved is not leads, at a minimum, to a delay in achieving fully accommodated, the lawyer must either make partnership, and often to an inability to advance some accommodation on his or her own part or to partnership. These working conditions lead leave the organization. Therefore the requireto job dissatisfaction and affect morale. The ment for reasonable accommodation is a "twobarriers to becoming a partner are extremely way street." How do law firms meet this duty to accomsignificant. The prestige attached to partnership often translates into the ability to attract modate? Ms. Gorlick noted that there are already clients and obtain better quality work. It also a number of law firms and legal departments promotes the lawyer's loyalty to the firm. who have established written policies to recogIt is this overall impact on the lawyer's career nize the importance of and\or the requirement which the duty to accommodate seeks to re- for accommodating lawyers with family respondress. But how far does the duty to accommo- sibilities. The importance of establishing written date extend? In the law firm setting, the relevant policies is threefold: factors in assessing whether the accommoda- 1. Written policies result in even-handed treatment, thereby reducing the possibility of intion will result in undue hardship are financial advertent discriminatory decisions and avoidcosts, interchangeability of work force and faciling the perception that the individual ities, and concerns regarding morale of co-workrequesting the accommodation is seeking speers and other employees. The cost and incial or unusual treatment; terchngeability issues are subjective in that they are dependent upon the situation: the size of the Continued on page4

October 1995

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SECTION TALK (cont'd)

Practical framework Continued from page 4

2. Written policies send a positive message to all firm members about the firm's position on the issue of reasonable accommodation and they reinforce the value that the firm places on providing for appropriate parental leave and alternate work arrangements; 3. Because written policies are unambiguous, they play a valuable role in the event that a firm is legally challenged. Ms. Gorlick recommends that firms consider establishing the following five types of written · policies: a) a workplace equity policy; b) a parental leave policy; c) an alternative work arrangement policy; d) a sexual harassment policy; and e) a sick leave\ vacation\ benefits policy. She also recommends that firms form a committee comprised of a broad cross-section of members (parents, non-parents, associates, partners, and individuals of various ages and both sexes), including influential members of the firm who are respected by all firm lawyers, to draft the policies and to see to their implementation. These committee members will have to be familiar with the relevant laws, the existing firm policies and practices, and the policies of other similar firms, to ensure that they understand the impact that the new policies will have on the firm. Once the policy is HTialized it should be provided to all firm members with a covering memorandum emphasizing strong support for the policy, especially from firm management. Workshops to educate firm members about the issues and the policies would also be useful. While parental leave is still an issue for a number of firms, the accommodation oflawyers with. family responsibilities by the provision of alternative work arrangements is a relatively new issue for most law firms. How does the duty to accommodate arise in a family responsibility scenario? Consider the following fact situation provided by Ms. Gorlick: Ms. Greene is a successful associate lawyer employed by a 40 lawyer firm. She has two children, aged 18 mos. and 3 yrs., and is the primary caregiver of the family. She and her husband (who also works full-time) have arranged day care of 10 hours per day, Mon. to Fri. The daycare commences at 8:00a.m. and ends at

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6:00p.m. Ms. Greene has a one hour commute to and from the office. She is entitled to three weeks vacation per year. The office expects a lawyer to bill1,650 hours in the fiscal year and to be in the office Monday to Friday. In order to meet the minimum requirements Ms. Green would have to bill6.7 hours per day, for 49 weeks in the year. As she can only be in the office eight hours per day she would have to be extremely efficient in order to meet the billing criteria. She could not be sick. The children could not be sick. She could not devote time to other professional or volunteer commitments and she would not have time to participate in socializing in the office. While she may be able to work at home in the evenings and on the weekends, as the primary caregiver, she will not have a lot of time for work at home because of household and parenting responsibilities. In this scenario Ms. Greene may, according to Ms. Gorlick, justifiably say to her firm that she cannot collect the 1,650 billed hours. There are many types of alternative work arrangements. For example, as an alternative to or in addition to the more standard arrangements ofreduced work volume or reduced hours, a firm could consider providing accommodation by arranging for the availabilityofon-siteday-careorprovidingtechnological assistance for those who wish to work at home. Ms. Gorlick listed some of the requirements that may be contained in an alternative work arrangement policy: • a requirement for predictable office hours • a requirement for a certain level of production for the alternative schedule lawyer • a requirement for flexibility on the part of the lawyer who is working on an alternative schedule and flexibility on the part of the firm to give the lawyer time off in lieu of extra time accumulated by the lawyer • a formula for rumuneration that is equitable relative to the agreed upon work schedule • the purposes for which the alternative work arrangements will be permitted • that the duration of the accommodation may be reviewed and possibly limited if the circumstances of the firm so require (such as a number of lawyers requesting alternative work arrangements at the same time). • a provision that the policy will be reviewed from time to time to ensure that it is current and is meeting the needs of the firm. •:•

BarTalk Vol.7 No. 5


Ever wonder how to register atrade mark? eith Spencer, a lawyer in Russell & Dumoulin's Intellectual Property Group, gave an overview of the trademark registration process at a recent meeting of the Business Law Subsection.

WHAT IS A TRADEMARK? He began by defining a trademark as being either a word or a logo or a combination of these which is used to distinguish the goods and services of one person from those of another. Mr. Spencer commented that trademark protection is a developing area of the law. The traditional concept of a trademark is changing to include areas such as: • Colours - such as pink for fibreglass, blue for pills, yellow for earplugs; • Fragrances- In the U.K., the fragrance for a perfume has been given trademark protection; and • Sound - In Canada, trademark protection has been afforded to Capitol Records for particular sounds. CHOOSING A TRADEMARK Before choosing a trademark, Mr. Spencer advised lawyers to bring the following considerations to the attention of their clients; 1. The basic statutory considerations and prohibitions against creating trademark out of certain words or logos. For example, you cannot trademark words which are descriptive of the character or quality of the wares or services in association with which they are used. Further, you cannot trademark a word that is primarily merely the name or surnames of a person who is living or has died within the preceding 30 years. 2. Identify those trademarks or trade names that are already being used in the market place a) Search of Trade Mark Register in Ottawa Hire an agent or undertake on online computer search using the NUANS system or undertake a search through databases available on CD Rom. b) Trade Name Search Search the corporate registries and the NAUNS system as well as telephone directories for major Canadian cities for the corporate name to identify any business which may be using a corporate name as a trademark without bothering to register it. October 1995

c) Industry Databases

In some cases, industry databases should also be searched for existing names or marks that may be confusingly similar. d) Client's Knowledge To a certain extent, a lawyer must also rely on his or her client's general knowledge of the industry. They may be aware of problematic marks or names which cannot be identified in any of the above databases .

WAYS TO APPLY Under the Trade Marks Act, there are four different ways in which you can apply for a trademark: 1. application based on proposed use If your client is considering launching a product in the marketplace but is still months away from doing so, you can file an application based on the proposed use of the mark in the marketplace. 2. application based on actual use 3. application based on making known You can also register a trademark even though it has not actually been used in Canada but is known here. An example is "Wal-Mart". WalMart has been known in Canada for some time even though it has not been carrying on business here. A priority date can be claimed based on the time at which its name became known to a significant portion of the Canadian public. This can be proven by survey evidence filed in the form of a statutory declaration. 4. application'based on registration in another jurisdiction 5. section 9 applications Section 9 of the Trade Marks Act allows an entity fitting within the definition of a "public authority" (ie. universities, charities) to register a trademark in a much simpler fashion than for ordinary commercial enterprises. MECHANICS OF THE APPLICATION PROCESS The trademark application process is straightforward. Once the application is filed the process takes 12 to 16 weeks before an Examiner reviews it. Upon review the Examiner determines whether any pending applications or previously registered marks might interfere and raises any concerns. The Examiner may request changes to descriptions of products or services Continued on page 74 5


B.C. Branch charity golf tournament registers second success

The Pinnacles Trophy for the Ladies' Low Net being presented to Mindy jong by Bob Williamson (left) and Warren Burgess .

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Sunshine, pleasant temperatures and water hazards were in abundance Sept. 8 when 80 golfers enjoyed friendly competition, dinner, awards and many prizes in the Second Annual B.C. Branch Charity Golf Tournament at the Mayfair Lakes Golf & Country Club in Richmond. Literacy B.C. was the designated charity for the 1995 event. The par-71 Mayfair Lakes course proved no problem for Doug Clark, Bill Phelps of Adams and Phelps, Steve Nash of Counsel International and Denis Racine of BC Buildings Corporation. The foursome rounded the 6,641yard layout with 136 points to capture the National Trust Annual Team Competition Trophy. They also won individual engraved crystal glasses from National Tr~st and deluxe hotel accommodation supplied by the Sutton Place, the Empress, Coast Vancouver Airport and Coast Plaza at Stanley Park. Diedre Herbert won the Mabel Penery French Cup and a $150 certificate from Corporate Couriers for Low Gross (Ladies) with a 91, while Eric Kaufmanis of Pryke Lambert Leathley Russell took the Midland Walwyn Blue Chip Cup and a $150 certificate from Smart & Biggar for Low Gross (Men) with an impressive four-under 67. Following is a partial list of other winners of major awards, prizes and sponsors (a special Air Canada hospitality class round trip for two to Europe for a hole-in-one went unclaimed): Second Prize, Team Competition: Jeffrey Hand, Mindy Jong, Michael Hewitt, Bob Hod-

gins, all of Singleton Urquhart MacDonald (hotel prizes donated by Coast Westerly of Courtenay, Wedgewood, Hotel Vancouver, and Four Seasons). Third Prize, Team Competition: Patrick Hogan of Hogan Computer Corp., Greg Steele of Steele & Company, Don Kostiuk of Smith Lyons Torrance Stevenson & Mayer, and Jim Jardine (dinner for two at Remingtons Restaurant and three prizes of dinner for two at Medley's Restaurant). Corporate Courier Challenge Cup, Team Low Gross: Larry Kahn and Danny Zack, both of Altman Kahn Zack; and Eric Kaufmanis and Thomas Russell, both of Pryke Lambert Leathley Russell (four Corporate Courier trophies and four free registrations for the 1996 PGI Golf Tournament). Second Prize, Team Low Gross: Mike Ursan, Bruce Bragagnolo of Godinho, Sinclaire, and Glen Harder and Tom Deutsch, both of Devlin Jensen (gift certificates from Abercorn Inn, CCNS Corporate Services

Winner of the Ronald C. Bray Cup for the Men ' s Low Net: Dan Kostiuk (left) with john Waddell

BarTa lk Vol.7 No. 5


Ltd. and Sutton Place Hotel). Third Prize, Team Low Gross: Tim Sperling, Baker Newby; Ted Murchison, Murchison Thomson & Clarke; Irv Muldowan, Progroup Sales & Leasing Ltd.; and Bob Smethurst, CBA- B.C. Branch (wine packs, coffee mugs and pens donated by Elite Bailiffs). Second Prize, Low Gross (Men): Tom Deutsch, Devlin Jensen (two weeks parking at Park N Fly) . Third Prize, Low Gross (Men): Ed Kellof, National Trust Company (box of Rogers Chocolates) . The Pinnacles Trophy in Support of CBA, B.C. Branch, Low Net (Ladies): Mindy Jong, Singleton Urquhart MacDonald (trophy and five nights summer package at The Pinnacles, Silver Star Mountain in Vernon, in a two-bedroom suite accommodating six). Second Prize, Low Net (Ladies): Marjorie Mooney, Thompson & McConnell (weekend for two at Landis Hotel & Suites) . Third Prize, Low Net (Ladies): Jane Purdie,

Diedre Herbert, winner of the Ladies' Low Gross, receiving the Mabel Penery French Cup from John Waddell .

Hambrook & Co. ($75 certificate from Vancouver Independent Reporters) . Ronald C. Bray Cup, Low Net (Men): Dan Kostiuk, Smith Lyons Torrance Stevenson & Mayer (killer whale soapstone carving supplied by CBA and a four-day Waterway Houseboat Vacation on a luxury 56-foot houseboat accommodating 12). Second Prize, Low Net (Men): Mike Schweitzer,NationalTrustCompany(twonights deluxe room at Georgian Co~t Hotel) . Third Prize, Low Net (Men) : Murray Ekins, Corporate Couriers ($75 certificate from B.S.G. Systems Ltd.). Closest to theHole:BillSkelly, Douglas Symes & Brissenden (two-bedroom condo for one week at Whistler Jack, Whistler, B.C., donated by Counsel International). Longest Drive (Men): Murray Ekins, Corporate Couriers (golf getaway for two at Holiday Inn- Downtown Chilliwack, plus golf for two at Royalwood Golf Club). High Hidden Hole: Don LeBlanc, Don LeBlanc Communications (complimentary meeting plus continental breakfast for 12 at Delta Place Hotel). 路 Best Novice (over 30 handicap, low net) :Craig Moulton, Thompson & McConnell (golf bag donated by BC Buildings Corp}

Ron Wa lker (left) presents Eric Kaufman is, winner of the Men's Low Gross, with the Midland Wa lwyn Blue Chip Cup.

October 1995

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REGISTRY Q & A BY jOANNE POWER

Manager Registrar Programs

APPENDIX C Schedule 1 Item 19

When preparing a Statement of Assets, Liabilities and Distribution in an application for grant of letters probate or of administration, what value would be shown for a fee simple interest in real property: the assessment authority value or fair market value upon an appraisal?

Q

applicant must show the fair market A The value of the asset as at the date of death. The method of determining the value must be clearly stated in the description of the asset.

olous actions and defenses, encourage both parties to deliver reasonable offers to settle, and discourage improper or unnecessary steps in litigation. As a result, self-represented lay litigants are now entitled to the benefit of party I party costs under Appendix B when they are successful and would otherwise be entitled to costs were they represented. Of course, they must have an entered order entitling them to costs before the costs can be assessed. SMALL CLAIMS ACT s.7(2) Rule 49(4)

Appendix C Schedule 1

Whose responsibility is it to inform the Family Court and the Small Claims Court when a Notice of Appeal is filed in the Supreme Court?

Q

Item 19

In Appendix C, Schedule 1, Item 19 (Fees Payable to the Crown-Probate, Administration and Resealing) what does "gross value" mean?

Q

AThe value used to calculate probate filing fees is the" gross value of all real and personal property of the deceased .. which passes to the personal representative." As property encumbered by a mortgage usually passes subjecttothatmortgage (sees.31 of the Wills Act), any mortgage should be deducted from the value of the encumbered property and shown as a separate liability. Therefore, in Item 19 "gross value" means the market value of the asset less any mortgage or other encumbrance. This does not involve the Part III debts shown on the Statement of Assets.

is the apellant's responsibility. AItSmall Claims Act s.7(2) states: "On the day the notice of appeal is filed in the registry of the Supreme Court, the person appealing must file a copy of the notice of appeal in the registry of the Provincial Court where the order being appealed was made." Rule 49(4) sets out: "A notice of appeal shall be served upon the person or body which gave the decision or direction or made the order and on all other persons who may be afffected by the order sought, unless the court otherwise directs." FAMILY RELATIONS Act s.14

Rule 57

Is a successful litigant who is not represented by a member of the Law Society entitled to an award of costs?

Q

AYes. If you have any interesting or unusual questions or comments about this column, please write directly to: JOANNE POWER Manager, Registrar Programs Law Courts 850 Burdett Ave. Victoria, B.C. V6W 185

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In a decision released February 16,

1995, Skidmore et al v. Blackmore, unreported Vancouver Registry No. CA012548, a five judge division consisting of Chief Justice McEachern, Justices Mcfarlane, Cumming, Gibbs and Finch overruled a previous Court of Appeal decision, Kendall v. Hunt No.2 (1979), 16 B.C.L.R. 295 (C.A.). The Court found that party and party costs serve several functions: they partially 路 indemnify the successful litigant, deter friv-

Must the body of a divorce order refer to the statute relied on?

Q

AYes. TheHonourableMr.JusticeSpencerin a memorandum dated July 9th, 1992* to the Supreme Court re: Corollary Relief Orders: Divorce Actor Family Relations Act said: "A recent problem in the court of Appeal has drawn attention to the differences between orders for corollary relief made under the Divorce Actand under the Family Relations Act. Section 14 of the Family Relations Act provides: "Notwithstanding any other enactment, where an order made under this Act is ap-

BarTalk Vol.7 No. 5


pealed, the order shall, unless the court that made it otherwise orders, remain in full force and effect pending the determination of the appeal." There is no such provision in the Divorce Act. Accordingly, the Court of Appeal has power to stay an order made under the Divorce Ad pending appeal but has no power to do so where the order is made under the Family Relations Act. It is therefore important to note in an order under whichActthe corollary relief is given so that, in case of an appeal, the parties know to which court they should apply for a stay. The Judges' Family Law Committee respectfully suggestthatjudges making corollary relief orders should ask counsel to specify theActrelled upon and that registry staff should examine the orders to see that there is a reference to the appropriate status. *The foregoing is the complete text of the memorandum .

It is therefore important that the Court

order reflect the Act under which the corollary relief is given so that, in case of an appeal, the parties know to which court they should apply for a stay. The judges' Family Law Committee respectfully suggests that judges making corollary relief orders should ask counsel to specify the Act relied upon and that registry staff should examine the orders to see that there is a reference to the appropriate statue." Rule 9(1)

How do you renew a writ pursuant to Rule

PRESIDENT'S MESSAGE (cont'd from page

2)

... diverse range of interests are expanded by the members of Provincial Council, some of whom are elected from the Counties with others coming forward from the Sections, the standing and special Committees, and the ad hoc members nominated from many other, lawrelated organizations. It is true that practitioners in some areas of specialized practice, and some concerned with matters of social policy, have felt the need to form associations outside the CBA. Most, however, maintain close ties with the Branch - for example, the Trial Lawyers Association and the Association of Legal Aid Lawyers. Further, the CBA has managed to crea~e opportunities within itself for lawyers from rmnority groups to contribute to their own interests, and the interests of the profession. Examples include our Gay and Lesbian Rights Section and our Multicultural Committee. The intermingling of legal, political and social policy issues in the administration of justice, and in the practice of law, make it difficult to adequately advance the interests of the profession in a manner that will satisfy lawyers across the province. The Branch is doing all it can to be fairly representative of those interests, and its capacity for adapting to the demands of a diverse constituency is remarkable. After all, the point of facilitating representation and inclusion is not to make them ends in themselves but to insure that, by achieving those goals, the lot of all lawyers in a vigorous, and attuned organization, is enhanced. •!•

Q

9(1)?

up A Awritmaybeextended,morethanonce, to twelve (12) months from the date of the renewal. Application to the court may be accomplished by "desk" order pursuant to Rule 10(2). The procedure is as follows: 1. Make sure the original is endorsed as follows: "Renewed for ___ by order of _ from the _ _ day of _ _ _ __ 19 2. Obtain signature of registrar or authorized signing officer. ¡ . 3. Produce file copy or make photocopy of e~dorsed original for counsel. 4. File original. II

October 1995

NEW RULES GOVERN PENSIONS IN DIVORCE Changes to the Family Relatio11s Act concerning the division of pensions in separation or divorce cases took effect in B.C. on July 1. The Act makes it clear that a pension earned by one spouse during a marriage also belongs to the other spouse. Previously, the Act did not say exactly how the pension was to be divided, leading to lengthy and often expensive court proceedings. The revised Act makes pension plans responsible for dividing pensions for separated or divorced couples at source, with benefits going directly to each spouse. The new legislation applies to the two basic types of pension plans - the defined benefit plan and the defined contribution plan- earned while working in B.C. There are limits to how far the legislation can be enforced against pension plans located outside the province.

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Proposal for a Senior Lawyers Section of the CBA By Robert G. Smethurst, Q .C.

Robert G. Smethurst, Q.c.

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orne months ago I had the pleasure of attending a meeting of the Senior Law yers Division of the American Bar Association when they met in Victoria. Thei~ Division is open to ABA members 55 years of age and older, as well as to those who have been admitted to the Bar for at least 30 years. Previously, their eligibility age was 60 years or older. In my position as Executive Director of the B.C. Branch, I have heard comments from some of the more senior lawyers of our profession to the effect that they would be more involved in the CBA if more of the programs applied, or were of interest, to them. I suggest that one way of meeting those concerns is to form a Senior Lawyers Section within the B.C. Branch which, hopefully, would lead to a Senior Lawyers Conference of the CBA. 路 I recently obtained a package of material from the ABA which they provide to persons interested in creating a Senior Lawyers Division at the State or Local Bar level. Much of this material could easily be adapted for our own use here in Canada. As stated in the By-Laws of the ABA's Senior Lawyer Division, their purposes shall be to promote the particular interest of the senior lawyer, to plan and carry out programs, publications and activities of interest to the senior lawyer and to promote and coordinate programs, publications and activities for senior lawyers by and for State and Local Bar Associations. Their mission statement is a simple one. Namely, "to serve the interests and needs of the legal profession and the public by sharing the accumulated knowledge and experience of its members." We might easily adopt their goals so that they would read: 1. To be the voice of the senior lawyer within the Canadian Bar Association. 2. To assist in promoting improvements in the Canadian system of justice and to preserve and uphold the dignity and ideals of the legal profession. 3. To encourage interest in and the advancement of substantive elder law. 4. To assist the elderly and needy to obtain

proper legal representation. 5. To maintain an interest in programs for the elderly. 6. To assist the legal profession to develop competent and caring lawyers through the Provincial Branches and Local Bar Associations and men:tor programs . 7. To provide guidance and assistance to senior lawyers in preparing for and adjusting to changes in their professional and financial activities. 8. To act as a support group to the programs and activities of other Sections and Conferences of the Canadian Bar Association. 9. To enhance the quality of life of the senior lawyer. 10. To provide services and publications which enhance the continued careers and quality of life of its members. 11 . To continually monitor, evaluate and communicate to senior lawyers: a) The changing role of lawyers b) The future role of lawyers c) The methods by which lawyers may deal with their environment and role in life. At the present time, the ABA Senior Lawyers Division has 21 committees, including Law Practice Relationships, Wills, Probates and Trusts (estate planning considerations), Second Careers, Elder Care/Law, and mapy others. Their Division has published several items to help senior lawyers negotiate and manage their future, including such publications as "The Lawyer's Guide to Retirement," "Strategies for Attorneys and their Firms and Turning Points," and "New Paths and Second Careers for Lawyers." I am quite prepared to take the lead in organizing a Senior Lawyers Section within the B.C. Branch if there is sufficient interest among our members. If you would be interested in becoming a member of a Senior Lawyers Section here in B.C. or in taking part in the organization of same, and if you are 55 years of age or older or have been admitted to the Bar for at least 30 years, I would certainly like to hear from you. Enclosed in this edition of BarTalk is a form indicating your interest in the formation of such a Section and I would ask you to complete same and return it to the Branch Office. We will then be in touch with you in the next short while. I look forward to hearing from many of you. BarTalk Vol.7 No. 5


David J. Bilins~y Chair, B.C. Branch Law Practice Management Section

David J. Bilinsky is a partner at Lakes Straith & Bilinsky, and is past-chair of the Law Practice Management Section, B.C, Branch, and can be reached on the internet at integra/@direct.ca.

t's two o'clock in product exceeds that of the competition, the afternoon, do I take a chance on the edge ofl({e you know what and that outweighs ~ Just like all the rest ~ how we produce it. your computer(s) !look inside and dig it out ~1 Time to make hamare doing? Are 'Cause there's no points for second best you paying for a preburger from a sacred cow. Recall that climium lOOmz PenMighty Wings, tium™computer to be by Harold Faltermeyer and ents rarely can judge Mark Spiro, performed by Cheap Trick. used to generate a docthe quality of a legal product alone; what ument by search and replace? Are your time entries collected and they can judge are its attributes, namely speed, collated by your accounting package, only to be cost, accuracy, and user friendliness . In each of rekeyed by your secretary into a word process- these areas, technology offers gains to the client ing program when you bill the file? Are you over the old way of doing things. If the clients upgrading to Windows95™ because you feel are happy, and generate referrals as a result, you should? Do you have computers sitting on guess which firms will be turning away clients! The competitive world is filled with relics of lawyers' desks collecting dust? All of us fall into the trap of continuing to use businesses that were technically superior, but today's technology to simply perform yester- not as mindful of business realities as their comday's task "faster" . This may produce a short- petition. ening of a document's turnaround time, but OK you say, how do we realize these gains only to a point. It is questionable if a secretary from technology? Here is a sampling of the can generate a pleading by seek and replace methods that can be used: really any faster on a Pentium than on a 386. • First, we must rethink and redesign how we Does this mean that we should hold off buying use the computer. For example, we can conany new machines? Are we spending money tinue to generate conveyance documents in a word processor, or we can work with a dedsimply to generate profits for Intel? The sad truth is that many computers are icated conveyance package that calls for inonly used as nifty electronic typewriters. True, formation to be entered once, such as a purcorrecting documents is easier and faster than chaser's name and address or a legal description, and inserts it automatically into on the old IBM selectrics, and your document is every document required for the closing. The saved for later use or amendment. However, accuracy of the documents is increased, the creating documents by search and replace on today' s computers is equivalent to using a Indy time to generate the conveyance documents car to go to the comer store for milk. is reduced, and the efficiency of the conveySo what, you ask? Why should we change ance secretary is increased. The number of transactions that can be handled in any given the way we go about producing legal documents? If it ain't broke, why fix it? month is increased, which goes directly to your bottom line. The single most important reason is that there are those who are exploring the technolo• Document assembly programs offer the same advantages for transactions which are less gy, and realizing substantial gains in effectiveroutine than a conveyance. Here you and ness and profitability as a result. These innovators are changing the tilt of the playing field to your staff will be called upon to invest time their advantage. The rest of us run the risk of into learning and implementing the program, and in designing your work flows to use the losing clients to firms that can turn out a legal power of the assembly process, but subs tanproduct faster, cheaper and more efficiently than we can. But you say, the quality of our legal Continued on page 12

October 1995

11


PRACTICE TALK (cont'd)

tial gains in accuracy and efficiency can be realized as a result. • In litigation files, data files in WordPerfect or Word can be used to store styles of cause and other standard information for merging into pleadings and other court documents. Or you can take the next step and develop a database which acts with your word processor and stores many relevant pieces of information on each file and client. Again, rather than using search and replace, the secretary works with the database to merge routine information automatically in a pleading or court document. Litigation files also benefit from case management software, which keeps lawyers on top of their files by steadfastly bringing up reminders and important dates. Files are not allowed to go stale. • Commercial and corporate files can also

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nuN fRASER J. GarY Coben

CO IV-'

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benefit from document assembly programs, similar to litigation files. • Use a computerized fax program and a modem to send a fax directly from the word processing program. This offers a considerable time saving over the multi-step method of typing in the fax, printing it up, walking it over to the fax machine, feeding it in and keying in the fax number and waiting for the fax to be transmitted. Fax programs operate from an electronic phone book, where entries can be selected by a click of the mouse. Furthermore, transmission of a common fax to several numbers is similarly achieved with only a few clicks of the mouse. If there is a difficulty in transmitting the fax, especially a multi-page fax, it is a simple matter of requesting the computer to retransmit, rather than waiting by a fax machine and refeeding pages back in the fax. • Computerized legal research offers a considerable time saving over traditional research, especially where searching for the citations of a case. The learning curve is steep, it is true, and Quicklaw could be made much more user friendly (a Windows-based search program would be a vast improvement over the current command based structure) but still, the power and speed of a computer search is awesome. Furthermore, Quicklaw offers the resources of a very large law library at a fraction of the cost of subscription to the law reports. This levels the playing field in terms of research resources. • Spreadsheet programs allow you to keep your pulse on the financial performance of the firm, and to do "what if" calculations quickly and easily. Most accounting programs allow the import of your accounting data into a spreadsheet for your analysis. Henry Ford showed he could produce dramatic results when he combined technology with the redesign of the work process. The delivery of legal services is largely an informational exercise, and as such, stands to benefit from the today' s increases in communications ahd information processing. What is required is the vision to see the opportunities, and the energytoimplementthesechanges. The competition in the legal marketplace is ensuring that these challenges will be faced sooner than ever before. •:•

BarTalk Vol.7 No. 5


PILOT PROJECT:

Paging counsel to chambers By David W. Donohoe Chair, joint Court Services Committee

Almost every counsel who has been required to attend in chambers to present submissions on a longer contested application will have suffered delays, some lasting several hours or more, waiting until their case is called for hearing. Assuming that the current system of oral hearings on chambers motions will continue there is unlikely to be any short-term solution t~ eliminate the delays arising out of the large number of cases that are scheduled for hearing in chambers on virtually every day. However, it should be possible to enable counsel to put to more productive use the waiting time until the hearing of their chambers motion. Counsel would be able to utilize their waiting time more productively if they can be 路 excused from waiting in the courtroom. Counsel could then work on other files in the courthouse library or make telephone calls to other clients from the barristers' room. Chief Justice Esson has approved the implementation of a pilot project proposed by the B.C. Branch to permit counsel to rent a pager unit pursuant to a specified protocol in which counsel willbeexcusedfromcontinuousattendancewithin the courtroom to go to other parts of the courthouse. The text of the protocol governing the use of this procedure and the rental of the pager units is reproduced below. This pilot project will apply only to Master's civil chambers in courtroom 33 (800 Smithe Street, Vancouver) and will not apply to Masters' family chambers in courtroom 32. It will also not apply to judges' chambers. The telephone lines in courtroom33 have been ~odified to enable the chambers clerk presiding m that courtroom to send a paging message to the paging unit that is being carried or worn by counsel in another part of the courthouse. According to the protocol, counsel will be expected tore-attend in the courtroom within five minutes of receipt of this paging c~ll from the chambers clerk.

Pager units will be available for rental at a daily rental fee of $4 from the accounting counter of the court registry on the second floor of the Law Courts. Counsel will be asked to sign an agreement to rent the pager unit prior to each rental. A joint committee of the CBA's B.C. Branch and the Court Services Division of the Ministry of the Attorney General has examined the potential benefits and pr<;>blems that might arise with the implementation of this paging system and fully supports the implementation of this pilot project. If any lawyer has any questions or concerns about the project, please phone David Donohoe, Chair of the Joint Court Services Committee, at 643-3160.

Paging Protocol 1. This pilot project will be confined to use in Master's civil chambers (Courtroom 33) for six months. 2. Paging will be applicable only to counsel waiting for completion of contested motions that are estimated to. require 15 minutes or more to be heard. Thus, the estimated hearing time of the motions involving counsel who are waiting for a paging call will also be at least 15 minutes. 3. To obtain a paging call from the chambers clerk, counsel must fill out two forms, a pager request form and a return to courtroom confirmation form. The pager request form is given to the clerk prior to the commencement of chambers, and the return to courtroom confirmation is given to the clerk upon return to the courtroom in answer to a paging call. The purpose of handing the return to courtroom confirmation to the clerk upon return to the courtroom is to ensure that counsel do in fact return in response to the paging call within the time permitted and that the 路c hambers clerk has been informed that all counsel have returned. Paging rental forms and rental paging units will be available to counsel at the accounting counter of the registry on the second floor of the Law Courts. Paging units and rental forms will not be available from Continued on page 14

October 1995

13


Ethics Committee looking at ancillary business activities The Ethics Committee of the law Society of B.C. is studying the question of "ancillary business activities" of members of the Bar. Cecil Branson, Q.C., a bencher, presented a report from the committee to a meetingofthe Benchers Sept. 8. The report included a suggestion for rule changes and the Benchers decided to ask the committee whether lawyers should be allowed to engage in activities of this kind. Gordon Turriff of Douglas, Symes & Brissenden, a memberofthe B.C. Branch executive, said in a letter to the B.C. Branch: "Our members will undoubtedly be interested in any proposed rule or rule change that might affect their ability to engage in businesses related to their work as practising lawyers. Forthatreason,lsuggest that our Practice Management Section look atthis subject and give Mr. Branson's committee whatever assistance it is prepared to accept." Comments or suggestions on this issue should be sent to Cece Branson at 886 Walker's Hook Road, Saltspring Island, B.C. V8K 1 B6 (telephone/fax (604) 537-2639).

14

Paging Protocol Continued from page 73

the chambers clerk. However, after the registry has closed at 4 p.m., the chambers clerk can arrange with counsel to return the paging unit to the registry. If a pager is returned after 4 p.m., counsel will be required to pick up their CBA card or credit card on the next business day. 4. Counsel who request a paging call must exercise care not to return to the courtroom prior to receipt of the paging call to avoid the paging call being given to counsel in the courtroom, since such a call would disturb the court proceedings. If counsel do need to return to the courtroom prior to receipt of the paging call, counsel must change the paging mode from a tone sound to a vibration on the paging unit. 5. Counsel who request a paging call will be expected to remain inside the Law Courts building at 800 Smithe Street and shall not be at liberty to depart this building. 6. Upon receipt of a paging call (which the chambers clerk will make by a phone call to a paging unit), counsel must attend at the chambers courtroom within five minutes. If all counsel do not return to chambers within the time permitted from receipt of a paging call, then the Master may either place the motion at the bottom of the list, adjourn the motion, proceed with the hearing of the motion in the absence of one of the counsel or make such order as the Master decides to be appropriate. Counsel assume all risk and responsibility for any failure in the paging equipment or any error by the chambers clerk or registry staff that prevent counsel from receiving a paging call in a timely manner or at all. 7. The court clerk will make a paging call to counsel waiting when there is five minutes remaining in the estimated time for the current motion being heard or earlier as soon as counsel for the respondent in the current motion completes his or her submissions, whether or not counsel for the applicant will make a reply submission. 8. It is anticipated that there will be no cases in which counsel do not respond in a timely manner to the paging call. However, in order to prevent any abuse of the privilege of using this paging service, counsel who fail to corn-

ply with these rules will lose the right to utilize the paging service, after such counsel has committed three infractions of the rules . The Manager, Civil Programs, Vancouver Law Courts, will notify the counsel of both of the commission of the second infraction and of the loss of the right to use the service after the third infraction. 9. Counsel must also advise one another where each of them will be located (e.g. seat in library or in barristers' room) during the waiting period prior to receipt of the paging call so that, in the case of any paging equipment breakdown, counsel can find the other counsel to personally notify counsel of the clerk's paging call. 10. Rental pagingunitswill beavailablefrorn the Vancouver Law Courts accounting counter for the $4 per day rental fee. The chambers clerk will be utilizing pre-programmed quick dial numbers to contact paging units. 11. This pilot project will be confined to the use of paging units in its initial stage. The use of cellular telephones for paging calls will not be permitted. This policy will be re-considered after the pilot project has been completed. â&#x20AC;˘!â&#x20AC;˘

Trademark Continued from page 5

or may cite an application which is confusingly similar. He or she may require you to provide a written submission explaining why your application should not be barred by the objection. Once this stage is passed the trademark is advertised to the public for purposes of opposition. The time limit is 60 days. If the application is opposed a proceeding similar to litigation ensues. It can be lengthy and expensive. If the application is not opposed a $200 registration fee is then submitted and a Certificate of Registration is issued. PROTECTION OF THE TRADEMARK

The common law cause of action of "passing off' can be used to protect an unregistered trademark and an infringement action and a passing off action can be commenced together in cases of registered trademarks. A trademark action may receive a better result if commenced in Federal Courtratherthanin Supreme Court because of the familiarity of Federal Court judges with such issues. However, Supreme Court has its advantages in terms of shorter time periods and lower expense.

BarTalk Vol.7 No.5


ACTS IN FORCE

Tourism Act, S.B .C. 1995, c.33, (Bill14), repeals the Ministry of Tourism Act, S.B.C. 1980, c.33, provides that the minister's duties include reflecting tourism interests in land and resource use and management decisions and provides details of the minister's powers. in force July 28, 1995 Ann Mclean

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.

October 1995

Miscellaneous Statutes Amendment Act (No.3), 1994, S.B.C. 1994, c.51, amends the Tobacco Tax Act, R.S.B.C.1979, c.404, allowing the director to limit quantities of exempt tobacco that may be purchased for resale by a dealer and adding the power to make regulations regarding the limits set under s.4.3. sections 12,13 and 15(b) of the Act in force August 18, 1995 Residential Tenancy Amendment Act, 1994, S.B.C.1994, c.57, amends the Residential Tenancy Act, S.B.C.1984, c.15, allowing the registrar to waive the application fee for arbitration of cases where the applicant cannot reasonably afford to pay the fee, allowing the registrar to order that similar matters be arbitrated jointly, setting the time within which reasons for decisions must be provided and requiring that written reasons be given. sections 11, 12, 14 and 15 of the Act in force August 18, 1995 Miscellaneous Statutes Amendment Act (No.3), 1995, S.B.C. 1995, c.53, (Bill 55), amends the (a) Court of Appeal Act, S.B.C. 1982, c.7, increasing the number of Court of Appeal justices by 2, (b) Horse Racing Tax Act, R.S.B.C. 1979, c.175, changing the rules regarding collection and distribution of taxes raised on bets (c) Liquor Control and Licensing Ad, R.S.B.C. 1979, c.237, providing for the payment of the administration of the Act and the distribution of license fees and penalties receive under the Act,

(d) Liquor Distribution Act, R.S.B.C.1979, c.238, deleting license fees from the revenue to be dealt with under the Act, (e) Motor VehideAct, R.S.B.C.1979, c.288, providing that a person who contravenes a bylaw regulating speed on a highway does not commit an offence against the by-law, (f) Police Act, S.B.C:1988, c.53, providing that a disciplinary tribunal may, but need not, consist of more than 3 individuals, and (g) Supreme Court Act, S.B .C. 1989, c.40, increasing the number of Supreme Court judges by 4 . sections 13, 27, 28 and 38 of the Act in force August 18, 1995; sections 16 and 17 of the Act (Horse Racing Tax Act) in force August 23, 1995; section 35 of the Act (Police Act) in force August 25, 1995; sections 22 - 25 of the Act (Liquor Control and Licensing Act and Liquor Distribution Act) in force September 8, 1995

Child, Youth and Family Advocacy Act, S.B.C. 1994, c.28, as amended by Child, Youth and Family Advocacy Amendment Act, 1995, S.B.C. 1995, c.20, (Bill47), establishes the office of Child Youth and Family Advocate, as an independen~ officer of the Legislature to provide advocacy services for children, youth and their families receiving services under the Child., Family and CommzmityServiceActandotherservices which may be specified by regulation and makes a consequential amendment to the Freedom of Information and Protection ofPrivacy Act. section 3 of the Act in force July 7, 1994; sections 12, 14, 15 and 16 of the Act in force May 18, 1995; sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 10.1, 11, 13,17 and 17.1 of the Act 路 in force September 1, 1995 NOTE: Child, Family and Community Service Act, S.B.C. 1994, c.27. This act is to be brought into force by regulation. As of September 15, 1995, none of the provisions have come into force. The act was amended by the Chilcf., Family Continued on page 16 15


LEGISLATIVE UPDATE (cont'd)

and Community Service Amendment Act, S.B.C. 1995, c.19. The provisions of the amending act came into force on royal assent, June 21, 1995, however the amendments will not be effective until the provisions of the Chilci Family and Community Service Actare brought into force by regulation. Miscellaneous Statutes Amendment Act (No.2), 1995, S.B.C. 1995, c.l2, (Bill 24), amends the WorkersCompensationAct,R.S.B.C.1979,c.437, restricting disclosure of information from workers' claim files . sections 33 - 35 of the Act in force September 1, 1995 Employment Standards Act, S.B.C. 1995, c.38, (Bill 29), repeals the Labour Regulation Act, R.S .B.C. 1979, c.213, sets the minimum conditions of employment and standards of compensation in the workplace, making changes from the previous Employment Standards Act, including adding provisions relating to domestic workers, allowing for compressed work weeks and banking of overtime, providing for unpaid family, bereavement and jury duty leaves, strengthening enforcement provisions including the payment of penalties for offences and payment of interest on unpaid wages, establishing the Employment Standards Tribunal to make recommendations about the exclusion of classes of persons from the legislation, setting rules for and hearing appeals from decisions of the director and inspecting premises and records in respect of matters covered which they are considering and makes consequential amendments to theHotelRoom TaxAct,LabourRelationsCode, Medical and Health Care Services Act, Municipal Act, Nurses (Registered) Act, School Act, SkiDs Development and Fair Wage Act, Social Services Tax Act, Vancouver Charter, Waste Management Amendment Act, 1993and Workers Compensation Act. The Employment Standards Act, S.B.C. 1980, c.10 is repealed effective November 1, 1995. sections 102 - 105 and 109(1)(c) of the Act in force September 8, 1995; sections 1 - 101, 106 108, 109(1)(a), (b), (d) - (h) and (2) and 110141 of the Act in force November 1, 1995. Miscellaneous Statutes Amendment Act, 1995, S.B.C. 1995, c.ll, (Bill 17), repeals the Mineral Prospectors Act, R.S.B.C. 1979, c.262. section 17 of the Act in force September 8, 1995 16

Motor Vehicle Amendment Act (No. 2), 1995, S.B.C. 1995, c.43, (Bill 50), amends the Motor Vehicle Act, R.S.B.C.1979, c.288, clarifying that a bus facing a red light and a transit priority signal may proceed through an intersection ahead of other traffic. section 12 of the Act in force September 8, 1995 Securities Amendment Act (No. 2), 1995, S.B.C. 1995, c.45, (Bill 44), amends the Securities Act, S.B.C.1985, c.83, inter alia increasing the permitted number of commission members from 9 to 11 and allowing the designation of two vice chairs, providing for the establishment of the B.C. Securities Commission Policy Advisory Committee and allowing the commission to apply to the Supreme Court for an order that persons who failtocomplymustpaytotheministertheamount of money gained or losses avoided as a result of the failure to comply. sections 4, 5, 9 and 44 of the Act in force September 8, 1995 Access to Abortion Services Act, S.B .C. 1995, c.35, (Bill 48), establishes access zones for the residences and offices of doctors who provide abortion services, provides for the establishment by regulation of access zones for facilities where abortion services are provided and residences of service providers and specifies activities which are prohibited in an access zone. Other specified types of activities intended to dissuade someone from providing or facilitating abortion services are prohibited both inside and outside access zones. A person who suffers loss as a result of a contravention of the Act may recover damages. A first offence is punishable by a fine of up to $5000 and imprisonment for not more than 6 months and subsequent offences are punishable by a fine of not less than $1000 and not more than $10,000 and imprisonment of not more than one year. in force September 18, 1995 An Act to Protect Medicare, (the Medical and Health Care Services Amendment Act, 1995), S.B.C. 1995, c.52, (Bill 54), amends the Medical and Health Care Services Act, S.B.C. 1992, c.76, changing its name to the Medicare Protection Act, setting out preamble and purpose provisions, requiring that a practitioner who voluncontinued on page 17 BarTalk Vol.7 No. 5


Attorney General says Bar is important environmentalists are The Bar functions as a very slowly coming together, important element in B.C.'s although the "noise" consystem of justice and the tinues from extreme eleMinistry of Attorney Genments. eral will continue to respond to, and meet with, He explained how the role of the Deputy Attorrepresentatives of the ney General, who deals CBA's B.C. Branch, Atwith judicial issues, differs torney General Ujjal from that of the Deputy Dosanjh told Provincial Minister, who handles adCouncil members Sept. ministrative matters, add16 in Vancouver. In a brief address during"itisimportanttokeep the administration of jusing the lunch break, tice separate from politiDosanjh referred to recent murders and the quescal issues. Owen had bad news 路 tioning of the justice sysfor advacates of increased tem by some politicians. legal aid funding. He "The moment we said $85 million a year is question the system of Attorney General U jjal Dosanjh addresses justice, we are on a slip- meeting of B.C. Provincial Council in being spent on legal aid pery slope," he said. Vancouver in September. in B.C., representing 10 "We have politicians percent of the total juswho should know better, yet don't seem to." tice budget, including policing and the courts. With federal government capping and proEarlier, Deputy Attorney General Stephen Owen, Q.C., told the meeting that the Rule of vincial restraints, ways to spend the money more Law, a fundamental cornerstone of society, is effectively must be found. "We should be able to being challenged on a number of fronts, includ- do a good job with this amount," Owen said, ing land claims, resource and environmental suggesting that the legal aid structure in the issues. Owen, a former Ombudsman who province has to be re-examined. "There will be no more money from the provchaired the Commission on Resources and Environment (CORE), said industry and moderate ince or from Ottawa," he said. 路:路 11

LEGISLATIVE UPDATE (cont'd)

tarily cancels their enrollment under the Act wait one year before being eligible to apply again for enrollment unless the public interest justifies a shorter period, requiring a practitioner who is direct billing to provide the patient with a properly completed claim form as soon as practicable, adding a new Part 3.1 "Limits on Billing", setting out requirements and limits on direct and extra billing, including prohibiting charging a fee greater than the tariff for that procedure and prohibiting tray fees for supplies and makes consequential amendments to the Guaranteed Available Income for Need Act, Hospital Act, Medical and October 1995

Health Care Services Special Account Act and the Social Service Tax Act. Act, except the part of section 8 that enacts s.17.2(2)(c) of the Medical and Health Care Services Act in force September 30, 1995 REGULATION TO NOTE

Child, Youth and Family Advocacy Act, B.C. Reg. 368/95 and 379/95 prescribe the Family and Child Service Act and the Adoption Act as "designated Acts", so that the advocate will carry out its function in respect of them. B.C. Reg. 368/95 effective September 1, 1995; B.C. Reg. 379/95 effective October 1, 1995

Now for something completely different The 1996 CBA National Mid-Winter Meeting is to be held in Yellowknife, N.W.T. February 2426, 1 996. Those who had the chance to attend the Whitehorse Mid-Winter will no doubt want to take advantage of this opportunity to again experience the warmth of Northern hospitality in the land of the Northern Lights and Moby Pike. Those who have not yet ventured "North of Sixty" should find out what they have been missing! The CBA MidWinter in Yellowknife will be an event to remember. In addition to a challenging business agenda, the local organizing committee has put together an extraordinary social program, including dog sledding on Great Slave Lake, that will have you telling stories to family, friends and colleagues for years to come. Pack up your long underwear and book a flight! If you have notreceived a registration brochure, contact the National Office at 1800-267-8860 to obtain a copy. If you want more information about the meeting or the N. W. T. you can contact Sandra Aitken at (403) 9207711 (after 1 p.m. MST).

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CBA barn-burner planned for Banff Lawyers and their families visiting Banff in February will be excused for thinking the year is something other than 1996. Medieval dinners and country dances will do that to you, particularly after a day of exhilerating skiing. The B.C. and Alberta Branches have lined up what promises to be one of the best joint midwinter meetings in years, packed with first-rate CLE panels, recreation, entertainment for the whole family, and evening social events. Banff Springs Hotel is the venue for the Feb.1-3 event. A regular meeting of B.C. Provincial Council and the winter meeting of the Kootenay Bar will also be held during the weekend. Gerry Kambeitz of Cranbrook is working with the Alberta Branch on a CLE program that will include such issues as stress management, the internet, team building in law firms, trial advocacy skills, and trends in technology. Bob Smethurst, Q.C., executive director of the B.C. Branch, says a return Vancouver-Banff bus charter Gan. 31-Feb. 4) is being arranged for delegates and their families, with pickup stops

at communities along the route. Bus fare will be reasonable, but delegates have the option of flying to Calgary and commuting to Banff on their own. The Kootenay Bar is also planning a bus charter. In addition to time for skiing, recreation includes a B.C.-Alberta Branch hockey game and a hockey match between women lawyers and judges. Entertainment for children includes a movie night, swimming, skating, cross-country skiing and other recreational activities. Plan for Banff, but beware that rooms blocked out for the CBA at the Banff Springs Hotel are limited and early reservations are recommended. Full registration is $485 for members, $585 for non-members, $250 for judges and articling students, and $75 for guests at social events (children are invited to the Saturday dinnerunder age six is free, over six is $20). If full registration is received by the CBA offices no later than Dec. 1,1995, a 10 percent discount on fees will apply.

B.C. Branch concludes excellent year The CBA' s B.C. Branch finished the year ending June 30, 1995 in excellent shape, thanks to prudent fiscal management and revenue-generating initiatives such as the B.C. Lawyers Telephone Fax & Services Directory. That was the essense of the message from outgoing secretary-treasurer Emily Reid, Q.C., in her report to the Annual Meeting Sept. 15 in Vancouver. Reid said the Branch had an operating surplus of$125,713in1994-95,compared with a projected surplus of $22,247 and year Eric Rice, Q.C. (left), immed iate past president of the B.C. Branch, is presented with a thank-you gift by john Waddell, president for 1995/ 96, during lunch at the September Provincial Council meeting. 18

earlier results of$14,621. The Branch concluded the latest year with $450,736 in reserve funds. The financial statements were approved. Eric Rice, Q.C., in his last official message to the Branch as President, traced the growth of the Branch over the last several years and noted important programs where considerable progress has been made, including communications and Law Week and newer issues such as multi-culturalism and Lawyers for Literacy. Resolutions approved included: â&#x20AC;˘ Amendments to B.C. Branch By~ Laws detailing certain duties of elected officers and memhers of Council. â&#x20AC;˘ A resolution moved by the Maritime Section recommending that "the Federal Government legislate with respect to contributory negligence apportionment such that the legislation is a uniform regime across Canada." The preamble to the latter resolution said Ottawa has indicated that it intends to pass legislation on contributory negligence apportionment in maritime matters, either on a uniform basis or by incorporating each province's contributory negligence legislation by reference. BarTalk Vol.7 No. 5


Provincial Council Highlights Following are highlights of the regular meeting of B.C. Provincial Council held at Vancouver's Law Courts Inn Sept. 16 (also see other stories

this issue) • John Waddell of Victoria chaired his first Provincial Council meeting as President of the B.C. Branch. It was a smooth, well-run meeting that prompted Immediate Past President Eric Rice, Q.C., to remark at lunch: "Every time I see a friend succeed, a little piece of me dies." • National CBA President Gordon Proudfoot made a special presentation to Greg Steele, an executive committee officer of the B.C. Branch, who arranged a number of key meetings and served as escort during his two-day whirlwind visit to the province. • James Lebo,PresidentoftheAlberta Branch, spoke of ·the rollback of judges salaries in the province and said his branch is off to the Supreme Court in defence of the independence of the judiciary. Lebo also urged a good turnout at the joint mid-winter meeting of the B.C. and Alberta Branches at the Banff Springs Hotel Feb.1-3, 1996. • Emily Reid, Q.C., vice-president, gave the report of the secretary-treasurer to the end of June, reporting a year-end surplus of $125,000. She said the B.C. Branch now has reserves totalling $450,000. • President Waddell made special presentations to Immediate Past President Rice and to Leo Donahue of Vancouver, who for 12 years was the B.C. Branch agent for the Canadian Bar Insurance Association. • Executive Director Robert Smethurst, Q.C., said he was sad to announce the resignation of Larry Hnetka as communications director of the Branch for health reasons. The search for a replacement is underway. In the meantime, Smethurst said the Branch was fortunate to be able to call on the public relations services of Don LeBlanc, who has had a 13-year association with the Branch as a consultant. He thanked LeBlanc for his help in producing recent issues of BarTalk and the 1994-95 Annual Report. • Doug Robinson spoke on the Friedland Report A Place Apart, commissioned in early 1993 by the Canadian Judicial Council. Professor Friedland addressed issues surrounding judicial independence and accountability. Recommendations included replacing lifetime appointments to the judiciary with seven-year terms, October 1995

more detailed selection criteria for candidates, creation of a five-person committee to review files of all Provincial Court Judges for possible elevation to the federal bench, entrenching judicial independence in the Constitution, and periodic evaluation of the performances of trial judges. Robinson recommended that members of the Bar read the Friedland Report to "see where the practice is going." • Jim Vilvang, a former B.C. Branch president who is co-chair with Kathleen Keating of the 1996 Joint CBA/Commonwealth Law Conference in Vancouver Aug. 25-30, 1996, described it as "the premiere law conference in the world ." It was noted that this will be Hong Kong's last conference as a member of the Commonwealth and South Africa's first meeting in many years. Vilvang is seeking volunteers to help in this prestigous event, including law firms to host receptions and lawyers willing to host visiting lawyers in their homes. Catherine Sas, co-chair with Georgalee Lang of opening and closing celebrations, outlined the gala entertainment being planned for Vancouver's new GM Place stadium. • Jeff Scouten, speaking on the issue of notaries, said the first phase of the pilot program in · Kelowna has just been completed. He said this phase involved consumer research into why clients hire lawyers over notaries, and "the results are illuminating." Another component of the pilot - a survey of the marketing efforts of lawyers in Kelowna- is now underway and the project should be completed in another 12 months. Scouten was the recipient of the President's Award, presented by Immediate Past President Eric Rice, Q.C., for his work on this important issue. • Leigh Harrison, a former B.C. Branch president, outlined more details of the joint Winter Convention in Banff, including a first-rate CLE program being organized by the Alberta Branch with input from Gerry Kambeitz of Cranbrook, an action-packed social program, and sporting activities . A low-cost return bus charter from Vancouver is being. organized, or delegates can £1 y to Calgary and bus to Banff. Harrison said the block of rooms at the Banff Springs Hotel is limited and recommended early reservations. A full program for children is part of the convention package. Continued on page 20 19


BarTalkis published by the British Columbia Branch of the Canadian Bar Association, 10th Floor 845 Cambie Street Vancouver, B.C. V6B 5T3 TEL: (604) 687-3404 FAX: (604) 669-9601 • BarTa/kEditor: DON LEBLANC COMMUNICATIONS 275-3660 • Legislation & Law Reform Officer: ANN MCLEAN (Victoria) 598-2860 • Section Talk Editor: SHELLEY BENTLEY, LL.B. CIBC TRUST CORP. 665-1784 • Practice Talk Editor: DAVID BIUNSKY, Lakes, Straith & Bilinsky 984·3646 • AliSTAIR EAGLE of Pacific Visuals Inc. (688-8867) is the CBA (B.C. Branch) official photographer. © Copyright the British Columbia Branch of the Canadian Bar Association -1995. This publication is intended for information purposes only and the information contained herein should not be applied to specific fact circumstances without the advice of counsel. The B.C. Branch of the Canadian Bar Association represents over 7,600 lawyers within British Columbia. The B.C. Branch is dedicated to improve and promote access to justice, to review legislation, initiate law reform measures and advance and improve the administration of justice. On behalf of the profession, the B.C. Branch works to improve and promote knowledge, skills, ethical standards and well-being of members of the legal profession and promotes the interests of its members.

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Provincial Council approves two resolutions Resolutions askingformore time for public input on proposed legislation in B.C., and calling for the establishment of a benevolent fund for the province's lawyers, were passed at the Provincial Council meeting in Vancouver Sept. 16. The Legislation and Law Reform Committee resolution said the government should provide sufficient time between first reading and the committee stage of substantive legislation to allow members of the Legislative Assembly and the public to provide meaningful input to government" and, in particular, that sufficient time is given when important substantive amendments are proposed to be made in Miscellaneous Statutes Amending bills." The resolution asking the B.C. Branch to establish a benevolent fund was approved after considerable debate. It resulted from a verbal report by Gary Cohen of the Westminster Bar on the fate of Graeme Kierstead, a young family law lawyer who was viciously attacked and severely injured by an irate husband during a taxation hearing in court. The resolution calls for the creation of a committee to administer the fund, establish the criteria for same, and decide how money is to be raised for the fund. It also instructs the B.C. Branch executive to give early consideration to a grant or an interest-free loan from surplus funds, if constitutionally valid, to Kierstead and the family of another young lawyer who died suddenly of a serious illness that had prevented him from being able to obtain life insurance. During debate, it was noted that the attack on Kierstead - with the two-foot blade of a scythe - was the second violent attack on a lawyer in the same courtroom during the past

Attention UBC Law Alumni The annual general meeting of the UBC Law Alumni Association will be held on Nov. 21,1995, at the Law Courts Inn (114A- 800 Smithe Street, Vancouver) beginning at 5 p.m. If you plan to attend, please advise Nicole Chipman at Blake, Cassels & Graydon, phone (604) 631-3322.

year, raising questions of security. The first involved a woman lawyer who was trapped in a locked room and punched by an irate husband.

Pacific Rim trade focus of NYSBA meeting More than 300 lawyers from 33 countries are expected to attend the armual conference of the New York State Bar Association's International Law and Practice Section in Vancouver0ct.18-22. Legal issues surrounding Asia-Pacific trade will headline the five-day program at the Pan Pacific Hotel, organized by the NYSBA in conjunction with the CBA's B.C. Branch and the Law Society of B.C. The conference is expected to attract lawyers in private practice, government, and those working in multi-national and local businesses. A session on "international expansion and operation of professional sports" will look at conflicting labor and antitrust laws in Canada and the U.S. and will feature Brian Burke, vicepresident of hockey operations for the National Hockey League, and Michael Korenberg, deputy chair ofVancouver-ba,sed North West Entertainment Group. · The 55 000-member New York State Bar Association, 'the official statewide organization of lawyers in New York, is the largest voluntary state bar association in the U.S. Further information on the Vancouver convention available from Paul Winner Consultants Ltd., Vancouver (phone 687-3777, fax 687-3797).

HighlightS Continued from page 19 • Eric Rice, Q.C., outlined arrangements for the National Council mid-winter meeting to be held in Yellowknife, N.W.T., Feb. 24-26, 1996. For further details, members are asked to contact the B.C. Branch office. • Kerry-Lynne Findlay, Branch secretarytreasurer and Communications Committee cochair, said a speakers' bureau is being initiated this fall, with three or four Sections involved at the outset. • The next meeting of Provincial Council is scheduled for December 9, followed by a Christmas party at The Pier restaurant in Richmond. The February meeting will be held in conjunction with the joint Alberta/B.C. Branch midwinter meeting at Banff. •:• BarTalk Vol.7 No. 5


BarTalk | October 1995