B.C. Branch a strong voice at Charlottetown Mid-Winter Meeting Newsletter of the Canadian Bar Association (B.C. Branch)
Volume 7 Number 2
Of all the wonders of the world, probably none have been seen by as few British Columbians as Charlottetown in February. That is until last February, when the CBA National Mid-Winter Meeting was held there, and another dozen was added to that privileged class. A pearl of off-season beauty, Charlottetown with its well preserved old buildings, quiet outlying countryside, and very interesting people, was all captivating. Ask Doug Robinson, a member of our Executive, who got so carried away that he placed an offer on a farm and several items of furniture. Our hosts served us with exceptional hospitality, taking .u s on tours of Government House and providing at-home dinners and a curling bonspiel. And, oh yes, there was a business agenda, a rather intrusive one. The major items included revision of the National/Branch revenue sharing formula, introduction of a National"Systems of Justice Task Force" and episode umpteen of the Wilson Gender Equality Debate. The delegates threw themselves at the issues with the usual self absorption.
President's Message ................... 1 Registry Q&A ............................ 2/3 Law Day '95 .................................. 5
Civil Liberties Assoc . .................. 6 SectionTalk ........................ 718 &15 PracticeTalk ............................ 9/10 Internet Home Pages ................ 10 Legislative Update ............. 11/12113
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Division of Pensions ................... 14 Lawyers for Literacy .. ... .. .... .. .. .. .. 16 CLE News ................................... 17 Council Highlights ...................... 19
Eric Rice, Q.C. CBA (B.C. Branch) President 1994/95
The most controversial issue was the change in revenue sharing which the Branches, notably ours, strongly advocated. It comes almost always as a surprise to our members in B.C. to learn that of their fees paid to the National organization only about l/2comes to the B.C. Branch with the other 1/2 going to the National Office to pay for National programs. Most of the members believe that most of the services that they pay for come from the Br\).nch, and they are right. In fact, on top of its own growing activities, the Branch has taken on the burden of down-loading from the National Office of some of its programs. At any rate, faced with the sub-committee report of the Branch Presidents and Vice-Presidents calling for a 4% shift of revenue, and after a tough debate, the National Executive accepted a compromise of 2.5% AND there will be an ongoing review of the fee sharing process. For the B.C. Branch this means an additional annual injection of about $25,000, not huge by comparison of our total budget of $2 million, but it is a move in the right direction, which one hopes will continue with some momentum . Systems of Justice
The Systems of Justice Task Force was launched as an enquiry into delays and other problems in our
Please turn to page 4
Registry Q & A
Your Registry Questions Answered Appendix C. Schedule 1 Item 25 Interpretation Act Section 29
Q: Does the $4.00 search fee set out in Schedule 1 of the Rules of Court apply per search, or for the year being searched?
A: The fee applies to a search of a record, a "record" being defined in the Interpretation Act as including" ... books, documents ... any other thing on which information is recorded or stored ... ". The fee assessed in $4.00 for each search regardless of the number of years or indices searched to obtain the particular file . If the search is negative, that is, there is no file, a charge is still made for the process . Rule 60 (22)
Q: Can an agent, or a party, other than a party to the
proceeding search a divorce or Family Relations Act file with the consent of the solicitor of record? A: No. Rule 60(22) states that only a party to the proceeding may authorize a person to search a divorce or Family Relations Act file . A solicitor, in person, may search any file, after proof of membership in the Law Society. A solicitor may not, however, authorize others to search a matrimonial file. Rule 32
Q: When a registrar is conducting a reference pursuant to an order of the court under Rule 32 can the registrar look to the reasons for judgment with respect to the terms of the reference?
A: No. The registrar's authority must be found in the order of the court, not in the reasons for judgment. The authority for this is a recent Court of Appeal decision Moore v. Expansion Holdings Ltd. and Shingler (unreported) Victoria Registry No. V01789/V01790 dated August 2, 1994. In those reasons Madam Justice Sou thin stated at page 13: " ... all that the Master had the right to do, acting as the District Registrar, was what the court said he was to do. ...What is left, therefore, is the ordinary common fom1 of order under Rule SO(S)(b). In my opinion, such an order does not extend to an issue such as this in which one party asserts that events have happened which deprive the other of the right to rely on the written terms of the instrument. Since the common form order does not so extend, then it provides no foundation for the master, acting as district registrar, to make any recommendations ... "
In that case the order as drafted and entered did not reflect the reasons for judgment. The reasons for judgment contained a provision that the parties were at liberty to call evidence before the registrar to show that there had been a ceiling set on a mortgage. BarTnik Vo/.7 No. 2, March/April, 1995
by Joanne Power, Manager, Registrar Programs
The Court of Appeal concluded a master, sitting as a registrar, could not go beyond the scope of the order. The court asked, but did not answer the question of whether a master, sitting as a registrar, had the authority to inquire into the question of a ceiling, had it been included in the order. Rule 49
Q: Are appeals under section 87 of the Motor Vehicle Act to be processed through the Supreme Court's criminal registry pursuant to the rules for summary conviction appeals or through the Supreme Court civil registry pursuant to rule 49 of the Rules of Court?
A: This question was recently answered in a decision of Madam Justice BoydLandriault v. Her Majesty the Queen as Represented by the Superintendent of Motor Vehicles (unreported) Vancouver Registry CC940476, July 19, 1994. At page 15 Boyd, J. said: " .. .I understand that including the initial Notice of Appeal, the Notice of Hearing and affidavit material, the filing fees may be in the order of$300-$400 ... "
" ... an appeal brought under section 87 of the Motor Vehicle Act is a civil appeal and procedurally, must be governed by Rule 49 of the Rules of Court. Quite apart from the wording of s. 87 itself, I am satisfied that the courts have historically perceived prohibitions from driving or even 24 hour roadside suspensions as "civil disabilities" rather then "punishments" . Bankruptcy & Insolvency Act Section 173
Q: Can a discharge from bankruptcy be. both suspended and conditional?
A: No. The discharge must be either suspended for a defined period of time or conditional upon a defined set of circumstances occurring. The only time this may cause difficulty is when an individual has been previously bankrupt. Normally they would receive a suspended discharge. If, however, an order for payment is called for, either due to neglect on making payments in the course of the bankruptcy or due to some other factor in Section 173, the order would be for the discharge to be granted conditionally on payment of "x" dollars with the discharge at a specific date. Rule 57
Q: If the parties have entered a consent dismissal
order providing for costs to the plaintiff can the registrar assess the costs of the plaintiff and offset the costs with expenses claimed by the defendant such as a cancellation fee? A: No. The order provides for costs to the plaintiff. The defendant has no entitlement to any costs or disbursements. Law and Equitt; Act s.18.3(2)
Q: Where shall a foreclosure proceeding on a mortgage be commenced? Please turn to page 3
3 Registry Q & A
A: S.18(3)(2) of the Law and Equity Act says: "Unless the court otherwise orders, every foreclosure proceeding on a mortgage shall be commenced, (a) where the land that is the subject of the foreclosure proceeding is situated in a municipality and there is a registry of the Supreme Court located in that municipality, at the registry, or (b) where the land that is the subject of the foreclosure proceeding is not situated in a municipality or, if it is situated in a municipality but there is no registry of the Supreme Court located in that municipality, at any registry located in the judicial district in which the land is situated:" Family Relations Act, s.74.1
Q: Can a separation agreement dealing only with division of family assets be filed for enforcement in the Supreme Court? A: No, this is a rare example of one instance where it is appropriate to refuse to file a document. S.74.1 of the Family Relations Act states: "(1) Where a signed copy of a written agreement containing a provision respecting (a) the custody of or access to a child by a parent, or (b) the maintenance of a child by a parent or of a person by the person's spouse, is filed in the Supreme Court in accordance with the Supreme Court Rules together with any consents or other documents required by those rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act." If a party wishes to enforce a provision of a separation agreement which concerns solely family assets, they must commence a proceeding by Writ. Rule 9
Q: What is the procedure to follow when an order is made to renew a writ or petition beyond one
1. Check your order for authorization. 2. Endorse original "Renewed for by order of from the __day of__ 3. Deputy Registrar to sign the endorsement. 4. Photocopy the original. 5. Return photocopy to the applicant. 6. File original. Please amend your Civil Documents Processing Manual, Chapter 2, page 2-217 to reflect these changes. Rule 14
Q: Can a party or their counsel withdraw an Appearance?
A: There is no rule or formal process allowing an appearance to be withdrawn. An application for an order concerning an appearance could be made in Chambers.
Q: How should an exhibit be entered at a Registrar's hearing?
A: Any exhibit at these hearings should be treated as any other exhibit entered in a proceeding. The amended exhibit control manual will reflect this . Rule 60B
Q: Can a Petition for Divorce be amended pursuant to Rule 24? A: No. Rule 608(15) governs amendments of Divorce Petitions.
"Subject to Rules 15(5) and 31(5), a petition for divorce may be amended at any time, with leave of the court, and without leave (a) at any time before service, and (b) once after service and before answer". Patients Property Act s.10
Q: When a court has ordered a committee to post a bond, can the registrar enter the order appointing the committee without having approved the bond?
A: No. The Bond must be attached to the order when the order is presented for entry. The registrar will not enter the order until the bond is approved. This practice is set out in the C.L.E. Chambers Orders book at page 1-191 as follows" "Where a bond is ordered, it must accompany the formal order when it is presented for entry."
The approval of the bond by the registrar should be noted on the final page of the order, not the bond, as the bond is then forwarded to the Public Trustee. Le~al
Profession Act, Sections 72 & 73, Rule 57 (32 .1)
Q: When can a Certificate of a Registrar in a matter under the Legal Profession Act be considered a judgment of the Supreme Court?
A: At the conclusion of a review under the Legal Profession Act the Registrar is required to issue a Certificate in Form 68A, Rule 57(32.1). That certificate, however, is not deemed a judgment of the Supreme Court until the expiry of the time specified by the Registrar or the court or the time allowed for appeal under s. 72(1)(a), namely, fourteen days from the date the Certificate was filed. NOTE: The registrar issues a certificate; the party is required to file the certificate. It is the filing which starts the time running. 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 lBS BarTalk Vo/7 No.2, March/April, 1995
President's Message (continued from page 1)
civil justice system . It is the particular project of our National President, Tom Heintzman, of Toronto, a well regarded litigator in his life before CBA. The Task Force is an initiative in the best tradition of our Association. It is a matter of concern that needs our help. It is aimed at a concrete, specific target that our members know a lot about, and can and will work together to do something about. It has been funded independent of membership fee revenue through solicitations from the Federal and Provincial Governments, and business sector and private sources. It includes on its National Steering Committee our own well respected Judge, Mr. Justice Bruce MacDonald. Wilson Report
The Wilson Task Force on Gender Equality, as it has for the past two years, occupied a large portion of the National Council time. Force-marched through another 60 or so of its recommendations, many of the delegates were asking why it should have been necessary to debate and become, frankly, unduly partisan over so many details. As our Gordon TurriÂŁÂŁ commented, it might have been better to receive the Report and discuss it, but structure the debate around about 15 resolutions as opposed to over 260. If the number of recommendations has made time
management a problem, there have also been a few aggravating factors . To begin with, the focus being on "gender" naturally there were protests at the exclusion of "race, sexual orientation, disability" etc., so there has followed an unmethodical guilt trip of patching up and filling in. Not that any of those concerns are unworthy. It is simply that they were long and hard to deal with as bits and pieces in the forum of National Council Meetings, as were a certain number of others that seemed ill-conceived, for instance the idea of a Family Savings Plan ala RRSP. Some of the resolutions, it seemed could have succeeded with less controversy, and proved just as useful, with less militant wording, for instance the call for "compulsory" classes in family law at all law schools. True, we are not an organization afraid of controversy, but inasmuch as we also value consensus, the length of this debate has not been wholly productive. If these problems hadn't appeared obvious to us,
your delegates, we would certainly have learned of them from your letters and phone calls over the past year, and from communications with the judiciary. We understand these concerns and we have said so at National Council. Our aim is to get past the clause by clause struggle of the Wilson Report as soon as we can, and get on with the practical challenges of promoting equality in the workplace and the daily lives of our members . BarTnik Vo/ .7 No.2 , March/April, 1995
Even so, and despite complaints about trivialities and overpoliticising, the Wilson Report, and the working papers that have followed, are valuable and should be read. They point to changes that are upon us, or are coming, and which all of us will have to deal with. For instance, there is, or there may be, the" duty to accommoda~e" . This was the subject of a report presented in Charlottetown by Sheilah Martin, the Dean of Law at University of Calgary and Chair of a working group under the Wilson Task Force. She concluded that there exists now a duty upon law firms to accommodate the family responsibilities of their members. If she is right, the ramifications may be startling. Judicial Independence
Of the Wilson Report chapters, one of the most controversial, Chapter 10- The Judiciary- was tabled from Charlottetown to the Annual Convention to be held in Winnipeg in August. This was to pay respect to the Canadian Judicial Council which has commissioned its own study on Judicial Independence under Professor Martin Friedland. Professor Friedland spoke in Charlottetown and ad vised that, hopefully, his report will be a vailable in May of this year. It will deal in its own way with some of the issues raised in Chapter 10 (Codes of Conduct, Ethics and Discipline) as well as Administration of the Courts and Pay and Pensions. It will be useful for us to consider his approach before our organization begins to advocate its own position and presume to determine for the Judges what their standards ought to be. It is no secret that the Judiciary in this province has questioned some of the presumptions and opinions expressed by Bertha Wilson and the commitment of the CBA, accordingly, to stand up for judicial independence. The B.C. Position
One learns at these CBA meetings the importance of preparation and timely caucus meetings to ensure effective representation. Bob Smethurst performed superbly as Party Whip in Charlottetown, albeit with less adversity than he faced last year in Jasper against such distractions as nearby ski facilities. In striving to give the B.C. Branch, your Branch, a very strong voice in the affairs of our Association, we have tried to organize our delegates such that they may attend these meetings with a common understanding of the issues and our Branch's interests. We have taken it for granted that this is what you would wish. An important thing, of course, is to know your views on the matter. If you would wish to receive a fuller account of the Mid-Winter Meeting, or any other business, you are welcome to contact the B.C. Branch or any of our Executive Committee Members. If you have anything to say, we would be very pleased to hear it. 0
Law Day 1995
"Law in the Mall" at Metrotown Centre highlights Vancouver Law Day program In a departure from the usual open house at a Vancouver court location, the Vancouver Law Week Planning Committee took Law Day to Metrotown Centre in Burnaby on Sunday, April 23, 1995. Over 30 justice-related displays were featured as well as student mock trials. Other events included the Barry Sullivan Public Speaking Finals, a student-lawyer mentor program and a Dial-A-Lawyer program on Sat., April22.
sociation (B.C. Branch). Special thank you is also extended to the Rosedale on Robson for its sponsorship of accommodation for out-of-town participants in the Barry Sullivan Public Speaking Contest.
We also gratefully thank the thousands of volunteers who plan, coordinate and implement Law Day activities throughout the province. 0
Did Sneezy have hay fever or did he huffand puff and blow the three pigs' houses down?
Many communities throughout British Columbia also celebrated Law Week with open houses at the courts, mock trials and programs in the schools.
Morley Elementary Grade 7 students performed the fairy tale mock trial, Regina vs. Sneezy the Wolf, at Law Day '95 at Metrotown Centre.
We gratefully acknowledge the generous financial support of the British Columbia Ministry of the Attorney General, the Law Society of B.C., the Law Foundation of B.C., the Vancouver Bar Association and the Canadian Bar As-
Special thank you is extended to the Law Courts Education Society of B.C. for coordinating the mock trials during Law Day. The Musqueam Band Youth Group performed Regina vs. Raven in which Raven, often known as the "trickster", is accused of stealing a bow fromtheChief'shouse. The mock trial is based on a Tsimshian story and was performed at Law Day at Metrotown Centre. Photographs: Alistair Eagle
ofPacific Visuals, lnc. ,official photographer for the CBA (B .C. Branch)
Vancouver Police Dog Masters delighted Law Day visitors at Metro town Centre with their canine charges. Law Day 1995 Planning Committee Members t Danielle Horowitz, Law Courts Committee Chair Education Society of B.C. Ian Guthrie, Continuing Legal Educat Michael Kenis, Crown Counsel- Youth Court tion Society of B.C. - Committee Vice Chair t Ron Lauenstein, Dept. of Justice Clare Barry, Dept. of Justice- Criminal Specific t Tiffany Lee, Law Courts Education Law Lance Bernard, Crown Counsel Society of B.C. Regional t Lynn McBride, Harper Grey Easton Tim Delaney, Lindsay Kenney t Mark Osborne, Provincial Court of B.C. Carol Dusseldorp, Provincial Court of - Burnaby B.C. - Administration t Mandy Sandhu, Provincial Court of B.C. Donna Ginther, Acting Reg. Director-Court Services Court Services t Dorothy Sawczuk, CBA, (B.C. Branch) Patti Graham, CBA, (B.C. Branch) t Robert Smethurst, Q.C., CBA, Debra Hanuse, Davis & Company (B.C. Branch) Mike Hicks, Crown Counsel - t Jan Staples, Ministry of Attorney GenerRegional al-Communication/Education Division Larry Hnetka, CBA, (B.C. Branch) t Stephen Wright, Trower & Company
t Mari Worfolk, Swinton & Companyt t t
t t t 8-4-1 KOZ (Eight for One Cause) This youth group promotes the prevention of, and positive alternatives to youth violence, crime and gangs and were featured at Law Day at Metrotown Centre.
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BarTalk Vo/.7 No. 2, March/April, 1995
Civil Liberties Association promotes civil rights protection for over thirty years It is not surprising that the currentpresident of the B.C. Civil Liberties Association (BCCLA) is a lawyer.
Andrew Wilkinson, President B.C. Civil Liberties Association
As BCCLA President Andrew Wilkinson explains, many of the issues that absorb the Association's time and energy focus on the interaction between law and public policy, where civicminded lawyers find much to engage their interest and challenge their intellectual and professional skills.
This has been so since the BCCLA was formed back in 1962, when British Columbia had no Legal aid, no human rights agencies, no Ombudsperson, and no police complaints procedure. The BCCLA was actively involved in promoting many of the civil rights protections we now take for granted. For example, in the 1970s, the Association played a major role in the development of legislative proposals that led to the B.C. Police Act and the Human Rights Code that preceded our present B.C. Human Rights Act. In the 1980s, the Association's court victories included its successful challenge to the province's electoral boundaries scheme. Most recently, the BCCLA and Little Sisters Bookstore have challenged the power of Canada Customs to determine what Canadians can see and read.
With some BCCLA issues, one is reminded of the phase "the more things change, the more they stay the same." Certainly a parallel exists between the current controversy over banning the gay and lesbian publication XTRA! West in the Fraser Valley and the early 1970s controversy over the (then radical) Georgia Straight, when attempts to ban its distribution in New Westminster were thwarted by the Association. Throughout its history, the BCCLA has counted on advice and assistance from lawyer members who have volunteered everything from simple telephone advice to handling full-scale trials. A lawyer and CBA member, Murray Mollard, is now on staff as the Association's Policy Directory I Caseworker. The BCCLA Board of Directors, which currently includes 11lawyers in its 35 members, shapes Association policies and guides its activities. The BCCLA is not politically partisan. Governments of all political stripes have regularly invited BCCLA staff and Board members to present submission and proposals on issues that have civil liberties implications. To learn more about the Association, to become a member, or to volunteer services, contact the BCCLA office at #425- 815 West Hastings St., Vancouver V6C 1B4 (tel: 604-687-2919). Or get in touch with Andrew Wilkinson, he can fill you in on all the details. 0
Grant Funds Available
Law Foundation considers new, time-limited grants The Law Foundation of B.C. funds projects in five law-related areas: legal education; legal research; law reform; legal aid services; and, law libraries. The next deadline for applications to the Law Foundation is August 28, 1995. These applications will be considered at the November 18, 1995 Law Foundation Board meeting. For 1995, the only new applications which the Law Foundation will consider will be for new, time limited projects. No new projects of a continuing nature are being funded this year. If you know of a non-profit organization in your community that is involved in a one-time project which is related to the law, we may be able to help. Please contact the Law Foundation staff to discuss a potential funding proposal to see if it fits within the Law Foundation's funding guidelines before taking the time to make a formal application. BarTalk Vo/.7 No. 2, March/April, 1995
Please call the Law Foundation in Vancouver at 688-2337 if you have any questions about the application process. 0
Burnaby Bar cruise sets sail in May The Second Annual Burnaby Bar Association Cruise is fast approaching. All lawyers, judges, and their spouses or significant others are welcome. The cruise is scheduled for May 31, 1995 and the cost is $50 per person, made payable to the Burnaby Bar Association. Reserve your place by contacting Yazmin Mawani at Dorman Baird (430-3421). The first annual Cruise was very successful and tickets are going fast, so call early to ensure your spot.
media is clear on that point. Of larger concern is the problem of EMail evidence. What if the EMail message or document has been erased from the computer system? Another issue surrounding this is the fact that most EMail systems have back-ups which allow an EMail message to be retrieved even after the sender has erased the message without keeping a hard copy. These retrieval sys terns can be quite complex. Senders are frequently unaware of the retrieval potential and lack of confidentiality of their messages.
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Electronic mail: issues and concerns Computer Law Section, October 26, 1994
Anthony Intas of Price Waterhouse, Brock Smith of Douglas, Symes & Brissenden and Peter Brent of Command Records Services Ltd., recently led a discussion before Computer Law Section members on issues surrounding the use of electronic mail ("EMail"). The speakers began their discussion with a quote from Jim Carroll of Computing Canada: "People will often EMail messages that they might not normally put into a real corporate document. As a result, the informality of EMail results in messages that can easily be misconstrued or misinterpreted in a legal situation."
The purpose of EMail is to provide a fast way to communicate information and ideas. In the business world it is used to send correspondence and to create contracts. However, it is also used to send personal messages, gossip, pornography, and graphics and quotes which constitute copyright violations. In the United States EMail has already sparked a growing volume of lawsuits and it appears that Canada will experience the same trend soon. Messrs. Intas, Smith & Brent posed a large number of provocative questions and offered a few suggestions on how to avoid the predicted trend: Is an EMail message a corporate do~:ument? What if it contains thoughts, comments, preliminary findings, general discussions, drafts? Does signing your EMail with a graphic image of your signature make it legal or hold you liable? Although there is no Canadian case to date which deals squarely with the issue of whether an EMail message is a corporate document it seems clear that it is. Case law involving other forms of electronic
The issue of confidentiality is of great concern in a number of ways. Should your employer have a right to read your EMail? Is this a violation of privacy? Should your employer be required to inform you if your EMail is being monitored? Much of the growing legal action in the U.S. surrounding EMail relates to employment matters and some of these questions. The law in this area is not growing as fast as it might due to the high settlement rate. It appears that one reason for the high rate of settlement is the reluctance of large organizations to reveal information in a public legal action about the intricacies of their computer systems. Should someone read and answer your EMail for you? How can the receiver be assured that you are the sender given the ease with which an imposter can obtain your password? Further, you have no control over what the recipient does with your EMail message. Would a qualifier or disclaimer embodied in the text, similar to a FAX, help? Because of the immediacy of the medium sending a message to the wrong person is very easy. One possible tip for avoiding this is to use only an accurate and pre-established "mailing list". The spread of viruses through EMail is also of concern. It is almost impossible to "catch a virus" when sending a document through EMail but problems arise when sending any file or program capable of executing a computer system. The best way to avoid the problems noted above is to set EMail policies and standards within your organization. Set out a definition of EMail and a list of permitted uses. Set out clear policies regarding: •
rights to access by other users (including management upon termination);
responsibility for security of the messages (What procedures should each of the sender, receiver and administrator follow to maintain this security?);
records retention and archiving;
proof that messages are actually received by BarTalk Vo/.7 No. 2, March/April, 1995
the intended recipient and that acknowledgment of receipt is forwarded;
or trust must have a binding right to acquire the property within that time.)
penalties for non-compliance with the established policies for EMail use within your organization.
In the event that there are other beneficiaries who are entitled to receive income from the capital of the trust during the lifetime of the spouse, the trust is a tainted trust. The problem can be rectified by filing an election and by matching certain assets with nonqualifying liabilities of the estate.
Tax issues for general practitioners General Practitioners (Lower Mainlmzd) Section, Nov. 23, 1994
Blain Archer and Alan Bennett, chartered accountants with the firm of Johnsen, Archer were guest speakers at a recent meeting of the General Practitioners (Lower Mainland) Section. The focus of their discussion was the creation of new business for lawyers and accountants through the acknowledgment of potential tax issues in the areas of estate planning, corporate planning, real estate and spousal and child maintenance. Estate Planning
For tax purposes, when a person dies, the deceased is deemed to have disposed of everything he or she owns at fair market value. If the deceased owned depreciable capital property for which he or she had previously claimed a capital cost allowance, the deceased may realize an income gain or loss. If the deceased carried on a proprietorship, the deceased may have generated goodwill during his or her lifetime. This goodwill is also deemed to be disposed of at fair market value which may trigger income or capital gain.
Section 70(6) of the Income Tax Act allows a deceased's property to be rolled over to a surviving spouse on a tax deferred basis such that tax is paid when the surviving spouse dies. Since 1993 the definition of spouse has included a common-law spouse. There are some situations where it may not be appropriate to apply this rollover provision. For instance, it would be inappropriate to apply the roll over provision when a capital gains exemption may be used. Although the $100,000 personal capital gains exemption is no longer available after 1994, there still remains a $500,000 capital gains exemption on qualifying farm property, family farming corporations and shares of a qualifying small business corporation. When drafting wills, ensure the executor has the discretion to fulfill the needs of the testa tor. Consider providing the executor with the discretion of moving property of the deceased into a testamentary spousal trust. In creating a spousal trust tax rules require that the deceased must have been a resident of Canada prior to death and the deceased's property must vest indefeasibly in the spouse or the spousal trust within 36 months of the death (or the spouse BarTalk Vo/ .7 No. 2, March/April, 1995
Another matter to note when drafting wills are the circumstances in which probate fees are payable. Probate fees are currently payable at a rate of $6 per $1,000 of gross value of the estate above $25,000 in addition to a $100 fee payable to commence the application for grant. When a principle residence is held in joint tenancy, it does not form part of the estate upon the death of a joint tenant and does not attract probate fees. This is also the case when individuals instead of "the estate" are the designated beneficiaries for RRSP'S. In advising clients, it may be difficult to inform them that there may be as many as four different tax returns to file after death:
1) A date of death return is the income tax return of the deceased where all income of the deceased for the year of death, up to the date of death is reported. 2) All declared but unpaid dividends attributable to a deceased may be reported in a "rights and things" return. Other "rights and things" may also be reported in this return. 3) Partnership or proprietorship income attributable to a deceased's business may be reported in a return for this purpose, depending on the date of death and the fiscal year-end of the business. 4) In the event that the deceased was a beneficiary of a trust, a separate tax return may be filed. If there are losses realized by the estate from the disposition of capital or depreciable property, the executor may file an amended return to carry back losses to the deceased's date of death return. The deadline for the amending return is the due date for filing the first estate trust return. Recent Canadian Tax Foundation discussions have canvassed the issue of whether or not the future will see the levy of an inheritance tax. As there has been a shift in the public's perception that the Canadian deficit is the result of the older generation's spending habits it is likely that we will see the Government forcing this generation to contribute to deficit reduction. Legal and financial professionals should advise clients of the increasing potential for inheritance taxes.
Please turn to page 15
Let's go Surfin' now, ev'rybody's learnin' how, come on a safari with me ... Surfing Safari Words and music by Brian Wilson & Mike Love, recorded by The Beach Boys
Having returned from the land of the Cubs, Bears, Bulls, 'Hawks & Sox 1, I thought that I would share my impressions of the American Bar Association's 9th Annual Techshow. Techshow was a three day bombardment of ideas, people and information. Perspective comes with time, and it took a week back in the trenches to fully appreciate the unprecedented blend of techies, lawyers, academics, exhibitors and others who contributed to the success of Techshow. The major theme of the show for me was: Communication. Technology is helping lawyers reach out to people and information in unprecedented ways. Of all the communication methods discussed at Techshow, none is generating more interest than the Internet. There is a literal explosion of U:sers and material coming on line, and this is growing daily. Why surf the Net? Perhaps for no other reason than our clients are going on the Net, and they will be asking if we as lawyers understand the Net's implications on their businesses (how many of us have thought about protecting our client's business name on the Net? Coke速, Mcdonalds速 and others have already been grabbed, and not by the holder of the trademark.) Another good reason: lawyers are the processors of information. The net allows us to access facts cheaply, easily (once you master the net) and in a computer usable form. G. Burgess Allison, author of The Lawyers' Guide to the Internet, shared his in depth experiences with the Net. He demonstrated how in the U.S., legislatures, law schools and others are continually adding statutes, regulations, government publications and legal material to those already on the net, all of which are accessible at no cost to the user (except your connect time through your Internet provider). From a Canadian perspective, our legal resources are appearing on The WWW Virtual Library- Law offered by Cornell Law School, in the Canadian Resource List and elsewhere. Our two related organizations, the ABA and the CBA, have home pages on the Net. However, the legal material on the Net is only part of what is useful to lawyers. For anyone requiring
David f. Bilinsky Chair, B.C. Branch Law Practice Management Section
medical information to prepare a case, the net provides phenomenal up to date material (The New York Times recently reported that patients are coming into their doctor's office better informed about their condition and treatment than their doctors courtesy of the Net. How long will it be before clients are doing this to lawyers?) Techshow not only demonstrated the Net, it provided an invaluable listing of materials and resources on the Net and how to access them. I found a related communication theme to be the growing presentation of graphically oriented evidence. Counsel for Michael Jackson brought his computer and sound system used in the copyright infringement suit over the song Dangerous. While listening to the song, his multimedia display visually compared how the duration and pitch of the melody changed. This served to highlight the differences which a jury, unfamiliar with music theory, may not have appreciated by simply listening to the two songs. Is this technology available to the mortal man? Michael Jackson obviously can afford such presentations. The point here is that Software suppliers such as Novell (WordPerfect) and Microsoft (Word) and Lotus (1-2-3) are packaging their premier products in Office Suites. These Suites are integrated software groups which allow users to easily move textual or numerical data (spreadsheets) into vivid Presentation Software. Creative lawyers can use these suites to draft submissions that are graphically oriented (remember that a picture is worth 1000 words). The point is that the Office Suites allow each of us to access this type of persuasive power quickly, easily and at low cost.
Please turn to page 10 1
BarTalk Vo/.7 No. 2, March/April, 1995
PracticeTalk (continued from page 9)
Techshow's first rate faculty and materials not only provided a glimpse of the future, they left you with a great number of ideas that you could take horne and use immediately. The vendors exhibition was daunting with the numerous displays of off the shelf software available to assist in running your office and managing your cases. Personally the best part of Techshow was meeting with other registrants and sharing their energy, their drive and their vision of what technology can and will do for them. Do we have to master this technology to run our practices and win cases? The answer is clearly, no. But recall that in years past, you didn't need a typewriter either. However, it did make things easier. Productivity and quality of practice improved as a result. No one knows where this new technology will take us as lawyers. The changes alone since the introduction of the first IBM PC have been phenomenal. Nevertheless, there is no doubt that technolo-
gy will and has, changed the legal landscape. Each of us must decide where on the map we wish to be. Techshow left me with a strong sense of the direction I can and shall be going. I will leave you with one final thought: "Things may come to those who wait, but only the things left by those who hustle." Abraham Lincoln. The best news is that you don't have to travel to Chicago to get a glimpse of the future. The Continuing Legal Education Society of B.C. (CLE) is hosting its own third annual Legal Technology ConferenceandExpo,June9and 10, 1995atRobsonSquare Conference Square, 800 Robson St., Vancouver. Contact CLEat 893-2162 or 1-800-663-0437 or fax to (604) 669-9260 for registration information. You can reach me on the Net at firstname.lastname@example.org. See you at CLE' s Legal Technology Conference. Oh, and by the way, Surf's up! 0
Internet Technology Resources
Newbies on the Internet find legal information sources New users of the Internet, or "newbies" as they are fondly called, can spend hours surfing the 'Net. While part of the ad venture in exploring new information frontiers is stumbling upon good resources, we've identified a few legal resource sites on the World Wide Web (WWW) that you might be interested in checking out. It's an eclectic listing, by no means complete, intended to show you some of the Canadian and American information now available. The first web site you should visit using your netscape browser: • Canadian Bar Association Home Page: http:/ I www.algonquinc.on.ca:80/ cba/ Other sites of interest: • • • • • • • • • • •
American Bar Association: http:/ /www.abanet.org/ British Columbia Government Information: http:/ I www.fic.gov.bc.ca/ficom/bcl.htm Canadian Legal Resources on the WWW: http:/ I www.mbnet.mb.ca/ - psim/ can_law.html Carswell Publishing Home Page: http:/ /www.carswell.com/ carswell.home Centre de recherche en droit public (U de M): http:/ I www .droit. umontreal.ca I e_index.h tml Faculty of Law, University of Alberta: http:/ /gpu. srv.ualberta.ca/ -bpoohkay / law.html Government of Canada WWW Project: http:/ /debra. dgbt.doc.ca:80 I opengov I Indiana University School of Law- Bloomington: http:/ /www.law.indiana.edu:80/ Ladner Downs Home Page: http:/ /www.ladner.com./ Iadner/ Law: http:/ /www .yahoo.com/Law I Law Reform Commission of BC: gopher:/ I bbs.qp.gov.bc.ca:70 /lQP _INFO /SYS%3A/GOPHERD I lawreform Law: Countries: Canada: http:/ /www.yahoo.com/ Law /Countries/Canada/
BarTalk Vo/.7 No. 2, March/April, 1995
• • • • • • • • • • • • • • • • • • • •
LAWLinks: http:/ lwww.counsel.com/ Legal Education Society of Alberta Home Page, CLE http:/ lwww.ualberta.ca/ -law /lesa/default.htm Legal Information Institute: http:/ /ww.law.cornell.edu Queen's Printer- British Columbia: gopher:/ I bbs.qp.gov.bc.ca:70/1 Statistics Canada - Statistique Canada: http:/ I www .statcan.ca/ index.html Seamless WEBsite- Law and Legal Resources: http:/ I tsw .ingress.com/tsw I Supreme Court of Canada: http:/ I www.droit.umontrea l.ca /CSC.html World Wide Web Virtual Library: Law: http:/ I www.law.indiana.edu/law /lawindex.html UBC Faculty of Law WWW Home Page: http:/ I flair.law.ubc.ca/incoming/lawhome.html What is WESTLAW? http:/ /www.qlsys.ca/ westlaw.html What's New on the Web in Canada: http:/ I www.csr.ists.ca/w3can/whatsnew /whatsnew.html House of Representatives - Internet Law Library: http:/ /www.pls.com:8001/ Lawyers on the Internet: http:/ /www.law.cornell.edu/ papers/Sreasons.html Legal Counsel Connect & Martindale-Hubbell: http:/ /www .counsel.com/martin.html Library of Congress World Wide Web Home Page: http:/ /lcweb.loc.gov /homepage/lchp.html QUICKLAW Home Page: http:/ /www.qlsys.ca/ ABA's Legal Research Jumpstation: http:/ I www.abanet.org/ ABA/Research/Law .html Legal Resource Network- Telnet Sites: http:/ I virgo.gem.valpo.edu:80 I -medic/ telnet.html UW Legal Resources on the Internet: http :/ I www.law.washington.edu/lawinternet/lawweb.html WWW Virtual Library: Law: http:/ I www.law.indiana.edu/law /lawindex.html
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.
ACTS IN FORCE Liquor Control and Licensing Amendment Act, 1993, S.B.C. 1993, c.32, repeals s. 16 of the Attorney General Statutes Amendment Act (No.2), 1992, which was to have amended the Liquor Control and Licensing Act, R.S.B.C. 1979, c.237, but which is no longerrequired due to other provisions of the amending act. section 11, except that portion which repeals s.17 of the Attorney General Statutes Amendment Act (No. 2), 1992, in force February 9, 1995
Liquor Distribution Amendment Act, 1994, S.B.C. 1994, c.45, (Bill 54), amends the Liquor Distribution Act, R.S.B.C. 1979, c.238, providing for the types of substances to which the Act does not apply, specify- 路 ing types of persons who may possess liquor in the province, setting out the extent of the government's control over and liability for liquor manufactured or imported into the province, allowing the government to sell liquor to its manufacturer or the manufacture's agent, distributor or importer and setting a sale price for the liquor sold, establishing accountability for payment for liquor which is unaccounted for and providing for inspections and removal of records and other relevant things. sections 1 - 3 of the Act in force Februan; 9, 1995 Residential Tenancy Amendment Act, 1994, S.B.C. 1994, c.57, (Bill 50) amends the Residential Tenancy Act, S.B .C. 1984, c.15 (a) providing that a tenancy agreement entered into by a person under the age of 19 is enforceable, with retroactive effect to all tenancy agreements in effect on the coming into force of the section, (b) providing that consecutive leases aggrega ting more than 20 years are deemed to each exceed 20 years and therefore require municipal approval, providing that a tenancy agreement for which prior approval is needed and not given is void if entered into after June 13,
1994 and providing that where a tenancy agreement is void due to lack of approval all payments made by the tenant are a debt owing by the landlord to the tenant, with retroactive effect to June 13, 1994, (c) allowing an arbitrator to order that a tenant may spend and withhold from rent up to one month's rent on repairs if a landlord fails to comply with a repair order and allowing a tenant to make emergency repairs in certain cases and deduct the cost from rent, (d) allowing a court to order a reduction of rent if a landlord fails to comply with the Act, a tenancy agreement or repair order, (e) allowing a court to authorize a tenant to change the locks and keep the only key where it is satisfied that the landlord may enter the premises in breach of s.ll,
<D expanding the matters which may be arbitrated to include rent reduction, emergency repairs, change of locks by tenant, landlord's right of entry and tenant's right to assign or sublet and making an enforced agreement to opt out of arbitration unenforceable, (g) providing a mechanism for arbitration of rent increases, retroactive to notices of rent increase since December 14, 1993 and providing that where a notice was received between December 14, 1993 and February 10, 1995, application to dispute the rent increase must be made within 90 days of February 10, 1995, and providing that the amount of the annual increase is based on a formula which takes into account the landlord's expenses and income as well as adjustment rates set by the government and prescribed by regulation; (h) describing the role of ministry officials to provide information and assist parties to a dispute, BarTalk Vo/.7 No. 2, March/April, 1995
(i) prohibiting a landlord from discriminating against a tenant or prospective tenant on the basis of their source of income, (j) increasing the maximum fine for contra ventions of the Act from $2000 to $5000 and adding three new offences: making it an offence to coerce, threaten, intimidate or harass a tenant or landlord, for certain defined purposes, making it an offence for a person to give false or misleading information in an arbitration and making it an offence for a tenant or occupant to wilfully cause damage to residential property, and
(k) adding a limitation period of two years from the end of the tenancy for commencing a proceeding, and makes consequential amendments to the Residential Tenancy Amendment Act, 1993. section 2 effective June 13, 1994; sections 1, 3 - 8, 10, 13, 16 except the part that enacts s.48.2 of the Residential Tet1ancy Act, 17- 20 atld 23 in force February 10, 1995
Recall and Initiative Act, S.B.C. 1994, c.56, (Bill36), provides processes whereby citizens may petition the government to consider a specific legislative proposal and either introduce it as a law or conduct a referendum on the issue and whereby constituents may petition to remove a Member of the Legislative Assembly from office before the expiry of their normal term of office and makes consequential amendments to theConstitution Act andReferendum Act. in force February 24, 1995
Attorney General Statutes Amendment Act, 1994, S.B.C. 1994, c.26, (Bill49), amends the Liquor Control and Licensing Act, R.S.B.C. 1979, c.237, permitting a brew pub or winery to own and operate a licensed establishment for sale of their product and to promote their product at their own establishment. section 8, except that portion which enacts s.18(2.1)(c) and (d) of the Liquor Control and Licensing Act and section9 in force March 1, 1995
Consumer Protection Statutes Amendment Act, 1993, S.B.C. 1993, c.39, amends the Credit Reporting Act, R.S.B.C. 1979, c.78, extending to businesses and other persons the right to inspect their credit reports, file an explanation and correct errors and requiring credit agencies to develop procedures acceptable to the registrar for ascertaining the accuracy and fairness of the contents of their reports. sections 9, 10, 11(a) - (c) and (e) -(g) and 12 - 14 in force Marcl1 1, 1995
Medical Practitioners Amendment Act, 1994, S.B.C. 1994, c.11, (Bill27), amends theMedical Practitioners Act, R.S.B.C. 1979, c.254, making administrative changes in the operation of the college. The provisions creating the office of special deputy registrar BarTnik Vo/.7 No. 2, March/April, 1995
to investigate complaints of sexual misconduct against a physician and creating the sexual misconduct review committee of the council are not yet in force. part of sectiotl 1, sections 2, 6, 8 - 12 of the Act in force March 3, 1995; sections 3 and 4 of the Act in force May 1, 1995 Housing, Recreation and Consumer Services Statutes Amendment Act, 1994, S.B.C. 1994, c.30, (Bill 47), repeals the Trading Stamp Act, R.S.B.C. 1979, c.407 and amends the
(a) Motor Dealer Act, R.S.B.C. 1979, c.287, regulating the alteration, replacement and disconnection of odometers, and (b) Travel Agents Act, R.S.B.C. 1979, c.409, providingthatremunerationandexpensesofTravel Assurance board members must be paid out of the travel assurance fund . sections 2 - 5 of the Act itl force Marcl1 15, 1995 Miscellaneous StatutesAmendmentAct,1994, S.B.C. 1994, c.49, (Bill33), amends the Social Workers Act, R.S.B.C. 1979, c.389, providing for the appointment of lay members to the board of registration, ensuring that the registrar is not a board member and expanding the powers of the board to make rules relating to the appointment and remuneration of a registrar. sections 9 and 10 of the Act itl force March 23, 1995 Forest Land Reserve Act, S.B.C. 1994, c.40, (Bill 56), amends the Municipal Act, R.S.B.C. 1979, c.290, s.1003(2), as enacted by the Heritage Conservation Statutes Amendment Act, 1994, providing that the new Part 30 "Heritage Conservation" may not be used to restrict forest management activity in certain circumstances . section 53 of tl1e Act in force March 31, 1995
Consumer Protection Statutes Amendment Act, 1993, S.B.C. 1993, c.39, amends the Motor Dealer Act, R.S.B.C. 1979, c.287, establishing the Motor Dealer Customer Compensation Fund, contributed to by motor dealers, to compensate prescribed persons for prescribed claims against motor dealers, establishing a board to administer the fund and decide claims and providing regulation making powers. sections 15, 18, 19 and the portion of section 20 that enacts s.27(2)(a) and (e) -if> of the Motor Dealer Act itz force June 1, 1995
Family RelationsAmendmentAct,1994,S.B.C.1994, c.6, (BillS), amends theFamily Relations Act, R.S.B.C. 路 1979, c.121,
(a) adding a new Part 3.1, which provides rules for division of pension entitlement in case of marriage breakdown (see article in this issue of BarTalk), and (b) as to agreements for custody, access or
maintenance, removing the requirement that the parties to such an agreement must consent before it may be filed and enforced as if it were a court order, and making consequential amendments to the Pension Benefits Standards Act. in force July 1, 1995
REGULATIONS TO NOTE Waste Management Act, B.C. Reg. 63/88, the Special Waste Regulation is amended, providing for the establishment and operation of return collection facilities for household hazardous waste. B.C. Reg. 52195 effective FebmanJ 9, 1995
Residential Tenancy Act, B.C. Reg. 51/95, the Rent Adjustment Regulation is made and is amended by B. C. Reg. 66 I 95, setting out the formulas for calculation of the justifiable rent increase which may be charged by the landlord and prescribing the forms for"NoticeofRentlncrease" and "StatementofRent Increase Information". B.C. Reg. 26/81, the Residential Tenancy Regulation is amended by B.C. Reg. 67/95, prescribing a new Appendix C - "Application for Arbitration" and by B.C. Reg. 114/95, providing that s.18 of the Act does not apply to the City of Vancouver or CMHC as landlord of premises for which rent is set on the basis of the tenant's income. B.C. Reg. 51195 effective Febmary 10, 1995; B.C. Regs 66/95 ana 67/95 effective Febnmry 23, 1995; B.C. Reg. 114195 effective March 17, 1995
Recall and Initiative Act, B.C. Reg. 69/95, the Recall Petition Administration Regulation, B.C. Reg. 70/ 95, the Initiative Petition Administration Regulation, B.C. Reg. 71/95, the Recall Petition Financing and Communication Regulation and B.C. Reg. 72/ 95, the Initiative Petition Financing and Communication Regulation are made, setting out the form of petition and procedure for canvassing and the rules for financing and communicating about petitions. effective FebmanJ 24, 1995
for some specified occupations and expanding the occupations to which specific provisions of the Act apply. B.C. Reg. 62195 effective March 1, 1995; B.C. Reg. 116195 effective March 23, 1995
Condominium Act, B.C. Reg. 534/74, the Condominium Act Regulations is amended, permitting the registrar to establish a separate folio of the register for each strata corporation which may be endorsed with charges liens and encumbrances affecting the land in the strata plan that is not a strata lot, dispositions, acquisitions, easements and covenants affecting land in the strata plan and changes affecting the strata corporation including by-laws, by-law amendments, amalgamation agreements and court orders. The folio may be attached to the title for each strata lot. B.C. Reg. 76195 effective March 3, 1995
Health Professions Act, B.C. Reg. 103/95 the Midwives Regulation is made, designating midwifery as a health profession, establishing the College of Midwives of British Columbia and setting out the scope of practice and limitations on practice. effective March 15, 1995
Criminal Injun; Compensation Act, the offences in the Schedule are amended to include criminal harassment (stalking) and uttering threats. B.C. Reg. 115195 effective March 23, 1995
Motor Dealer Act, B.C. Reg. 101/95, the Motor Dealer Consignment Sales Regulation is made, setting out the conditions upon which a motor dealer may take a motor vehicle on consignment for sale. B.C. Reg. 102/95, the Motor Dealer Customer Compensation Fund Regulation is made, providing for payments into the fund by motor dealers, establishing the types of losses which are eligible for compensation and setting out practices and procedures of the board. B.C. Reg. 447/78, the Motor Dealer Act Regulation is amended by B.C. Reg. 105/95, replacing the forms used for application for registration or registration renewal as a motor dealer under the Act. effective June 1, 1995
Employment Standards Act, B.C. Reg. 37/81, the Employment Standards Act Regulation is amended, requiring that a written employment contract be provided to a domestic on hiring and additional hours of work other than as stated in the contract be added to hours worked under the contract, increasing the minimum wage to $6.50 per hour effective March 1, 1995 and $7.00 per hour effective October 1, 1995, eliminating the lower youth minimum wage, increasing the minimum wage and piece work rates
Family Relations Act, B.C. Reg. 77/95, the Division of Pensions Regulation is made, providing detailed information for the division of pensions on marriage breakdown (see article in this.issue of BarTalk on page 14). effective July 1, 1995
BarTnik Vo/ .7 No. 2, March/April, 1995
Division of Pensions on Marriage Breakdown changes effective July 1, 1995 The legislation and regulations governing the division of pensions on marriage breakdown will take effect on July 1, 1995. Provisions contained in the Family Relations Amendment Act, 1994, S.B.C. 1994, c.6 (BillS) and the Division of Pensions Regulation, B.C. Reg. 77/95, set out the way in which the division of entitlement to a pension will take place on marriage breakdown. The legislation and regulations largely implement the recommendations of the Law Reform Commission in its Report 123 "Report on the Division of Pensions on Marriage Breakdown" (January, 1992). This report contains a comprehensive summary of the law and annotated draft legislation and regulations. The policy of the Family Relations Act is that pension entitlement earned during the marriage by one spouse belongs as well to the other. Currently in British Columbia, pensions are usually divided by the spouses on marriage breakdown without directly involving the plan administrator. The member may make regular benefit split payments to his or her former spouse after the member becomes entitled to receive a pension, or the member may pay a lump sum compensation amount to the spouse. The amount of the payments is determined by the parties or the court and is based on highly technical and actuarial calculations. The new legislation and regulations set out a comprehensive regime for the valuation, division, transfer and administration of pensions on marriage breakdown. They work in conjunction with the Pension Benefits Standards Act and regulations. The legislation deals with two basic types of plans: •
a" defined contribution plan", which provides a pension based on contributions
a "defined benefit plan", which provides a pension based on a formula which, for example, might use a member's salary
These are some of the features of the legislation: •
it takes into account the stage the pension is in at the time of division, i.e. whether it is nonvested, vested or matured
it makes provision for the death of a member or spouse in certain circumstances
it provides rules for dividing pensions in local plans, usually those located in B.C., and in extra provincial plans located outside the province
in most cases the division of a local plan will be carried out by the plan administrator
spouses can vary aspects of the division by agreement
BarTa/k Vo/.7 No. 2, March/April, 1995
the court has discretion to vary aspects of the division
The regulations address a number of matters in detail, such as: •
how to determine the spouse's share of the member's pension
methods for dividing a pension, transferring the spouse's share to another pension vehicle and administering the member's remaining portion of the pension
options available to a spouse for receiving a share of the pension
how a plan is to adjust the member's pension after division
forms to be used to require a plan to divide a pension
A further unrelated amendment to the Family Relations Act removes the requirement that the parties to an agreement for custody, access or maintenance must consent before the agreement may be filed and enforced as if it were a court order. This provision will also be in force July 1, 1995. 0 New College Formed
Hughes appointed as public member of first College of Midwives Health Minister Paul Ramsey announced the establishmentofB.C.'sfirstCollegeofMidwivesonMarch 16, 1995. Approval of the midwives regulation and establishment of the college means the practice of midwifery will be regulated in B.C. The recently adopted regulation allows the college to set standards of practice and education, develop a code of ethics and review public complaints. The board of the college is responsible for making decisions regarding the implementation of midwifery in B.C. and the delivery of midwifery care for women and their families. Six professional members have been appointed to the first board as well as three public members. Kate Hughes, one of the public members, practises with the law firm McGrady, Askew and Fiorillo. Her current practice includes labour, administrative and human rights law. She was previously employed by the Ontario government for the 1987Task Force on the Implementation of Midwifen;. Hughes has authored several articles and publications with the national Association of Women in Law regarding the regulation of midwifery. 0
SectionTalk (continued from page 8)
Tax issues should not be considered only upon the death of the testator. If the testator has enough wealth to live comfortably, it may be appropriate and possible to transfer future growth in value by way of an intervivos family trust thereby achieving an estate freeze. The value of common shares are frozen by issuing to the testator a class of preferred shares. The future growth and income of the company is passed onto the family by way of dividends paid on shares in the company acquired by the family trust. (Be aware that family trusts may be the target of the 1995 Federal Budget.) Spousal and Child Maintenance
Legal fees incurred to enforce maintenance are deductible on the basis that they were incurred to obtain income. Presumably, the deduction of legal fees should also be allowed when incurred to defend a claim to reduce the amount of maintenance payable brought by a maintenance paying spouse. Section 60.1 (1) of the Income Tax Act provides that periodic maintenance payments made pursuant to a divorce decree, a court order, a judgment or a written agreement are deemed to be made when paid. The payment is deducted from the income of the payor spouse and must be included in the income of the payee spouse. Typically, when drafting separation agreements, the issue as to what form the payor's contribution will take arises. A payee spouse will often want the payor spouse to pay for such things as children's clothing, activities, dental expenses etc. Whether or not the payor spouse will be able to deduct such payments from his or her income depends on the wording of the agreement. Revenue Canada takes the position that such payments are not periodic payments and therefore not deductible unless the wording of the agreement ties the obligation to make such payments to the specific wording in S.60.1(1). Corporate Planning
Clients frequently have concerns about the liability implications of their businesses and want to arrange their affairs to protect their assets. In such circumstances it may be appropriate to incorporate a holding company to hold the business assets as opposed to having the operating company hold these assets. So long as the operating company regularly pays dividends and rent to the holding company, payments for the operating company to the holding company are not fraudulent preference items. The rental of the assets will give rise to PST that must be remitted. GSTwillaccruealso, butGST payable to the holding company can subsequently be reclaimed by the operating company as a credit on its GST return. When a client starts a company and provides startup money, the issue arises as to whether the start-up
money should be categorized as a shareholder loan or as share capital. There are advantages to the client in designating start-up money as a shareholder loan. If the company fails, a client who has contributed to the company by way of shareholder loan will be able to recoup some of his or her loss by establishing that the shareholder loan is not longer collectible and therefore claim an allowable business investment loss. In the alternative, a client who contributes to the company by way of share capital will only be able to recoup his or her loss after the company is formally wound up, declared bankrupt or the shares are actually sold in an arms length transaction. These latter options are time consuming, cumbersome and expensive. Real Estate
In February, 1994 the federal government eliminated the $100,000 capital gains exemption. For holders of real estate other than principal residences, the elimination of the exemption raises the issue of tax payable on capital gains generated when the real estate is sold. For this year only, these holders can deem the real estate to be worth a fixed amount thereby stepping up the actual cost base of the real estate so as to claim the capital gains exemption. In the event that property holders avail themselves of this option, the capital gain to be incurred subsequently will be prorated. If the elected value of the real estate is more than its fair market value there will be a penalty. A frequently tax issue pertaining to real estate is the deductibility of interest on mortgages used to acquire revenue property. If the purpose of the loan is not for generating revenue via revenue property, interest is not deductible. Accordingly, when revenue property is acquired, the mortgage should be placed on the revenue property and not the principle residence so that interest can be deducted as a cost of generating revenue. 0
Career Opportunity The Workers' Compensation Review Board has a vacancy for a Vice-Chair. Appointments to this position are made by Order-In-Council. The Worker's Compensation Review Board is an independent agency charged with hearing appeals from employers and workers of decisions made by Officers of the Workers' Compensation Board with respect to a workers' claim. Details of the job position, remuneration paid and benefits can be sent to you by contacting the Workers' Compensation Review Board at 6647803 (FAX: 664-7899). Deadline for receipt of applications is June 1, 1995. 0
BarTa/k Vo/.7 No. 2, March/April, 1995
16 Lawyers for Literacy
Call for volunteers for the Lawyers for Literacy Project The CBA (B.C. Branch) Lawyers for Literacy project builds on the 1991/92 CBA Task Force on Legal Literacy. This task force concluded that adults with limited literacy were intimidated by lawyers and the legal system and therefore avoided initiating legal action. The Task Force made recommendations relating to raising the profession's awareness of limited literacy issues and assisting people with limited literacy to access the legal system. The CBA (B.C. Branch) Plain Language Section formed the Literacy Interest Group to address the Task Force's main recommendations. The Literacy Interest Group successfully obtained a $99,000 grant from the National Literacy Secretariat to create a pilot project throughout B.C.
The Lawyers for Literacy Project was initiated by the new B.C. Branch Plain Language Section. Project Committee members include (front row, left to right) Penny Bain and Frances Boyle. (Back row: left to right) Paul Wynn and Cheryl Stephens. B.C. Branch Communications Director Larry Hnetka is also a member of the project committee.
This pilot project will: • increase lawyers' awareness of literacy issues, and • inform lawyers about strategies for addressing client literacy issues in their practices. The project will research practice guidelines, develop "Lawyers for Literacy" kits and provide training to volunteer CBA members on the use of the kits at local Bar meetings and Law Week activities.
How can you become involved? If you would be interested in: • learning more about the Lawyers for Literacy Project, • being an information contact in your firm our community, and/or • providing information on the literacy project at local Bar meetings Please call or fax: Project Coordinator Penny Bain at 733-7852 or B.C. Branch Communications Director Larry Hnetka at 687-3404. 0
Robertson heads British Columbia Treaty Commission Alec C. Robertson, Q.C., has been appointed chief commissioner of the British Columbia Treaty Commission. The appointment was made jointly by the B.C. First Nations Summit and the provincial and federal governments. Robertson has been a partner with Davis & Company since 1971. A past president of the B.C. Branch, Robertson's practice has concentrated on business law, natural resources law (primarily forestry) and administrative law. Alec Robertson, Q.C.
The federal government has also appointed Peter Lusztig as
BarTalk Vol.l No. 2, March/April, 1995
the federal representative to the Commission. Barbara Fisher, the provincial commissioner, and Carole Corcoran, one of the two commissioners appointed by the First Nations Summit, have had their appointments renewed for another two years. Wilf Adam as been nominated by the First Nations Summit to replace Art Sterrit who has completed his term as the First Nation Commissioner. This nomination is awaiting appointment by both the provincial and federal governments. The five-member B.C. Treaty Commission facilitates the treaty negotiation process, co-ordinates the start of negotiations and administers the funding to First Nations so they can participate in the process. It determines the readiness of each of the parties to begin negotiations, monitors the progress of negotiations and provides a public record of each negotiation. 0
17 Continuing Legal Education Society News
Family Law Conference covers all areas of family law practice Family law is a large, evolving, and critically important area of practice. And, you know how difficult it can be to stay on top of all the changes in the law. That's why the Continuing Legal Education Society of B.C. is holding its first major Family Law Conference on July 13 to 15, 1995. At this two and a half day conference in Vancouver, you'll cover all the major areas of family practice including maintenance, property, agreements, custody, pensions, torts, alternative families, ethics, red flags, and technology. It will also provide you with an opportunity to get to know your colleagues outside of the courtroom- receive an in-depth update, hear practice tips, and discuss social policy issues in family law. The materials will be an extremely valuable resource. The chairs for the major sessions include Trudi Brown, Q.C., John Fiddes, barbara findlay, Phyllis Kenney, Georgialee Lang, Ean Maxwell, Suzanne MacGregor, Brenda McCourt, Gayle Myers, Ed Mortimer, Barbara Nelson, Q.C., and Jim Schuman. They are lining up a faculty of some of the most experienced and talented lawyers and judges in family law in the province. For more information, please call CLE's Customer Service Department at (604) 893-2162 or toll-free at 1-800-663-0437. 0
Family Law mediation moves to the Peace River For the week of March 13, 1995, eight Peace River lawyers participated in the five day CLE Family Law Mediation course in Dawson Creek, under the leadership of Gordon Sloan and Wayne Plenert. With five lawyers already qualified, this means that 13 Peace River lawyers-one-third of the Bar-now have mediation training.
On an on-going basis, it will be interesting to observe
the impact of so many mediation trained lawyers on the way family law is conducted. Course conductors hope to see a "future-focused" approach to family conflict. It will be interesting to see if the lawyers adapt to this new approach. From CLE's point-of-view, this was an indication of their desire to find ways to more effectively serve the profession around the province. The course was modified for the small community with a greater focus on issues specific to smaller communities and less focus on urban issues. There was the same stress on learning and practicing principled negotiation techniques. From the lawyers' and family law mediators' perspective, the course tried to move mediation techniques more into the mainstream of practice. The technique of face-to-face meetings of lawyers and clients was practiced. Hopefully, this will become a more common part of family practice. At the course, lawyers developed the skills that will assist them to involve parties even in those cases in which there is a power imbalance. Lawyers learned skills to ernpower the more submissive client and offer protection for the client when otherwise there might be too great an imbalance. Thanks to Gordon Sloan, the course conductor, who provided his outstanding instructional skills. And special thanks and praise for Wayne Plenert, the volunteer CLE County Coordinator for Dawson Creek. Wayne not only took the initiative to work with his community and CLE to make this program a reality, he also served as a volunteer trainer and coach. 0 Appointments
Werier appointed to Provincial Court Jodie Fern Werier was appointed as a judge of the Provincial Court on April 11, 1995. Judge Werier graduated from the University of Manitoba law school in 1979. She was called to the Manitoba Bar in 1980 and the British Columbia Bar in 1983. She was a partner at Davis and Company where she specialized in family law. She began her judicial duties in Vancouver on April24, 1995. 0
The special focus of the course, in addition to basic family mediation skills, was principled negotiation for family lawyers. There was a strong emphasis on how lawyers could negotiate with each other using their skills. The course also included a workshop in which a traditional positional family lawyer negotiation session was compared with clients and lawyers meeting face to face, using principled negotiation. Although a number of the participants in the course want to conduct mediations in the future, most opportunities arise when the techniques can also be applied to traditional practice.
Robert McDiarmid, a Kamloops lawyer practising in civil litigation, has been re-appointed as chair of the B.C. Housing Management Commission (BCHMC) board.
From the Peace River's point-of-view, the course was an experiment to see if the majority of the Bar was interested in Family Law Mediation training. It was!
BCHMC is a corporation established for administering and delivering housing programs for the Ministry of Housing, Recreation and Consumer Services. 0
McDiarmid continues as chair of Housing Management Commission
BarTalk Vo/.7 No. 2, March/April, 1995
18 Career Development
Rainmaking for women lawyers attracts capacity audience The recent "Rainmakingfor Women Lawyers" seminar presented in Vancouver by Counsel International attracted women from Washington State and British Columbia. Steven Nash, a principal of Counsel International, said, "This is a Canadian 'first'-a seminar designed to assist women lawyers improve their rainmaking skills." Immediate Past President of the CBA Cecilia Johnstone, Q.C., provided insight into some of the current marketing issues faced by women lawyers in Canada based on her experience within the profession and as chair of many committees dealing both with gender and marketing issues. Martha Fay Africa, a partner in a San Francisco based attorney search firm and co-chair of the ABA Glass Ceiling Task Force, provided some thoughtful comparisons with the marketing experiences of women lawyers in the United States. Roy Williams of Counsel International and author of the syndic a ted columnManaging Partner presented practical and proven marketing strategies. He showed that one of the most effective marketing strategies is to provide your current clients with a level of service so that "P" (your performance) always exceeds "E" (your client's expectations). Roy concluded his remarks with a demonstration of the creation of a personal rainmaking plan. Two local rainmakers provided comment and suggestions. Margaret Mason illustrated her personal rainmaking style and offered a number of practical
Roy Williams of Counsel International addresses a capacity audience at the recent "Rainmaking for Women" seminar. Seated to his left is Cecilia Johnstone, Q.C., Past President ofthe CBA and a speaker at the seminar.
suggestions including finding a knowledgeable mentor. Rosalyn Manthorpe outlined her experiences in founding and building her current law firm in a suburban community. She encouraged participants to develop and use personal rainmaking plans. Participants indicated interest in a more advanced "how to" rainmaking seminar as well as forming a local WomenRainmakingGroup . Ifyouareinterested in forming or participating in this group, send your expression of interest to Robert Smethurst, Q.C., Executive Director, CBA (B.C. Branch) by FAX to the B.C. Branch office (FAX: 669-9601).0
Local lawyers perform The Caine Mutiny Court Martial Local legal theatrical talents perform The Caine Mutiny Court Martial at the Waterfront Theatre on Granville Island June 15 to 17, with each performance capped by a gala reception featuring the musical talents of a local singing trio. Featured in the performance are: ~ Vahan Ishkanian ~ Greg Lanning ~ Gerry Lecovin ~ Ed Lyszkiewicz ~ David McKnight ~ Daniel McLeod ~ Marina Morgan ~ JulieOwen ~ Fred Pletcher ~ JimPoyner ~ Deborah Satanove ~ Fred Weisberg As an entertaining twist in the performances, the members of the court in the court martial change each night. BarTalk Vol.7 No. 2, March/A pril, 1995
Local judicial players featured are Madam Justice Marion Allen, Master Ron Barber, Mr.Justice George Cumming, Mr. Justice Victor Curtis, Mr. Justice Jack Edwards, Madam Justice Mary Humphries, Chief Justice Allan McEachern, the Honourable Lloyd McKenzie and Mr. Justice Bruce Preston. Directing the production is Elizabeth Ball, artistic director of the Carousel Theatre. Setting a 1945 mood at the reception sponsored by Granville Island Brewing and Calhoun's Restaurant is the song-styling of Georgialee Lang, Linda Sum and Sandra Lundell. All proceeds benefit Carousel Theatre company, the Trial Lawyers Association of B.C. and the UBC Law Alumni Association. A portion of each ticket is tax deductible. For tickets, please call the Waterfront Centre Theatre Box Office at 685-5217 or FAX: 669-3817. 0
Provincial Council Highlights from the April 22 meeting • National Standing Committees: A nomination form for candidates for National Standing Committees is included in this issue of BarTalk. Contact Executive Director Robert Smethurst, Q.C., for additional information. • President Elect: As no further nominations were received, B.C. Branch President-Elect is John Waddell of Victoria. He will take office as B.C. Branch President for 1995/96 at the CBA Annual Meeting this August. •
Resolution re: Uniform Law Conference:
Council passed a resolution urging the British Columbia Attorney General to allocate sufficient funds to the Law Reform Commission to ensure that the Chair or a representative of the Commission can attend the annual meetings of the Uniform Law Conference in Canada. Contact Barbara Murphy at the B.C. Branch office (687-3404) for a complete copy of this resolution. • 1996 Joint Mid-Winter Meeting: The B.C. Branch and the Alberta Branch are holding a joint Mid-Winter Meeting in February 1996 at the Banff Springs Hotel Leigh Harrison of Trail will chair the B.C. Branch Committee. • Pilot Paging Program: The Joint Court Services Committee outlined a proposal to introduce a paging system on a pilot basis at the Vancouver Law Courts. Contact Co-Chair David Donohoe at Clark Wilson (643-3160) for further information. • Branch Archives proposed: The Communications Committee is considering establishing a B.C. Branch archives of photographs. Contact B.C. Branch Communications Committee Chair Kerry-Lynne Findlay at Connell Lightbody (684-1181) if you have photographs to contribute. • Award Recipient Chosen: Dean George F. Curtis of UBC has been chosen to receive the National CBA's Ramon John Hnatyshyn Award for Law. A presentation will be made to Dean Curtis at the CBA Annual Meeting in Winnipeg this August.
• Canadian Judges Conference: Mr. Justice Bruce Cohen provided Council members with an overview of the Canadian Judges Conference of which he is President this year. The Conference deals with judicial salaries and benefits as well as other matters concerning the judiciary such as education, quality, and long range planning. As well, the Conference is reviewing the Chapter 10 recommendations of the Wilson Report. He noted that Mr. Justice Bruce Macdonald has been appointed to the National CBA Systems of Justice Task Force. He expressed the view that the Bar and the Judiciary must take leadership in the vital matter of court delays. •
Extended Case Management Pilot Project:
Mr. Justice Bruce Macdonald who heads up the Extended Case Management Pilot Project spoke to Council members. He noted that delays in getting cases to trial were becoming longer and the need for reforms to the system of handling cases was becoming more urgent. He outlined the pilot project and suggested that this process might reduce the number of pre-trail motions particularly those that do not have merit. He also indicated that the hearing time of motions may be reduced because the same judge will be hearing all motions on the same case. •
Individual Calendar System Pilot Project:
Mr. Justice John Bouck spoke to Council on the Individual Calendar System Pilot Project. He noted that in the last 100 years, very little change has occurred in handling of trials in our court system. He provided some brief background on the current Master Calendar System of Case Management and pointed out that only about 70% of litigants get on for trial when their trial date arrives. The Individual Calendar System of Case Management would begin by assigning a case to an individual judge at the time of the filing of the claim. He then reviewed with Council the 15 separate stages or events of a trial extending over a period of 78 weeks. 0
Charity Golf Tournament '
Second Annual Charity Tournament and Dinner
Book September 8,1995 in your calendar and attend the Second Annual CBA (B.C. Branch) Charity Golf Tournament at Mayfair Lakes Golf and Country Club in Richmond. Team competitions are being planned and members from the various Counties are urged to consider entering the tournament. Other competitions will take into account various levels of golf expertise from beginner to low handicap golfers. Golf Tourney Co-Chairs are Craig Goebel and Robert Smethurst. A Committee of over 20 CBA members are busy planning a variety of fun events with all proceeds going to Literacy B.C. 0
Your feedback is important to monitor and develop services for members A Member Services Survey is included with this issue of BarTalk. Bruce Woolley, co-chair of the Member Services Committee, is pleased to report that income from the various products and services endorsed by the B.C. Branch provide more than $150,000 in non-dues revenue to the Branch. This allows the Branch to provide more direct services to members without raising membership fees.
As you'll note on the survey form, the B.C. Branch endorses a wide range of services. Your assistance in completing the form and returning it to the B.C. Branch office will help us monitor the existing endorsed firms and to gather your ideas for new products or services. If you have any questions about the survey, you can contact B.C. Branch Executive Director Robert Smethurst, Q.C. at 687-3404. 0
Members rate BarTalk newsletter as relevant and informative Results of the recent BarTalk survey are in. Respondents indicated that BarTalk was relevant to their membership and read the publication soon after it arrived. As well, a majority of the respondents rated the publication as a good communications vehicle for B.C. Branch activities. Members reported that the regular columns, Legislative Update, Registry Questions Answered and SectionTalk were very or extremely informative. Program reports such as Committee activities, DialA-Law and Lawyer Referral and Law Week were rated as not as important information to be included in the newsletter. An overwhelming 93.5% of those responding supported the current policy of charging for paid inserts to assist in offsetting some of the postage and mailing costs of the newsletter. Improvements suggested by respondents included more attention to the graphic layout and design. As well, an inconsistency in writing styles was identified and more editing of articles including shorter pieces was preferred by respondents. A number of suggested columns were proposed in the survey. Respondents rated member profiles of
BarTalk is published by the British Columbia Branch of the Canadian Bar Association, lOth Floor- 845 Cambie Street Vancouver, B.C. V6B 5T3 Tel: (604) 687-3404 FAX: (604) 669-9601 • BarTalk Editor: Larry Hnetka, Communications Director, 687-3404 • Legislation and Law Reform Officer: Ann McLean (Victoria) 598-2860
• SectionTalk Editor: Shelley Bentley, LL.B. • PracticeTalk Editor: David Bilinsky, 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.
BarTalk Vol.7 No. 2, March/April, 1995
professional or personal achievements as a very low priority. Practice advice, legal updates and law practice management columns were rated as very important information as was topical information within the legal community. For a copy of the BarTalk survey report, please call Fiona Watson at the B.C. Branch office (687-3404).0
Navigating Change The Mediation Development Association of British Columbia in collaboration with Family Mediation Canada is presenting its 9th Annual Conference entitled Navigating Change: Diverse Currents in Dispute Resolution. The Conference will take place at the Empress Hotel in Victoria on October 25 to 28, 1995. For information, contact the Mediation Development Association at 604-926-6652 (FAX: 9264115). 0
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 behalfoftheprofession, the B.C. Branch works to improve and promote knowledge, skills, ethical standards and wellbeing of members of the legal profession and promotes the interests of its members. 0
BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association, the leader and voice of Canada’s leg...