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DECEMBER 2016 | bartalkonline.org

Start-ups and Small Business Issues


news BARTALK EDITOR

Deborah Carfrae CBA NATIONAL MAGAZINE EDITORIAL BOARD CHAIR

Candice Alderson

How Trump Could Dump the Paris Agreement

EDITORIAL BOARD MEMBERS

Nathan Bauder Laura Cundari Brandon Hastings Kevin Kitson Kirsten McGhee Brandon Mewhort Sara Pedlow Lisa Picotte-Li Sarah Klinger

BARTALK SENIOR EDITOR

Kathie Taylor

STAFF CONTRIBUTORS

Judy Cave Travis Dudfield Tanya Galic Kent Hurl Stuart Rennie Karen St. Aubin Jennifer Weber Judy Yen

The BC Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, BC V6B 5T3 Tel: 604-687-3404 Toll-free (in BC): 1-888-687-3404 bartalk@cbabc.org

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org. © Copyright the British Columbia Branch of the Canadian Bar Association 2016. This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel. The British Columbia Branch of the Canadian Bar Association represents nearly 7,000 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

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A month before the Nov. 8th U.S. election the Sandra Day O’Connor College of Law published a document outlining the legal pathways a U.S. President could use to withdraw from the Paris Agreement. There are two major routes. The slower route would be to withdraw from the Paris Agreement itself. Article 28.1 of the Paris Agreement authorizes a country to withdraw from the agreement without reason or justification. The only limitation is timing. Countries would only cease to have emission reduction and reporting obligations four years after the agreement came into force. If President Trump gives notification for withdrawal on the first day of

BARTALK / DECEMBER 2016

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his term, then the withdrawal would only come into force on November 4, 2020. The faster route would be to withdraw from its’ parent agreement, the United Nations Framework on Climate Change (UNFCC), which only needs a year’s notice to the UN in order to come into force. However, this option requires Senate approval, as the UNFCC was approved by President George H.W. Bush and had the backing of the US Senate. The recent U.S. election gave the Republicans a decided majority in the Senate, so a challenge to withdraw from the UNFCC may not be likely. Withdrawing from the Paris Agreement outside its terms or the UNFCC would violate international law. The U.S. would still be obligated to reduce and report greenhouse gas emissions, though failing to do so carries no repercussions.

Lawyer Referral Service Email: lawyerreferral@cbabc.org


DECEMBER 2016

VOLUME 28 / NUMBER 6

Contents

Departments

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FROM THE PRESIDENT In Business for Our Members by Michael Welsh

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EXECUTIVE DIRECTOR Law a la Carte by Caroline Nevin

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PRACTICE TALK Reducing Your Exposure to Internal Fraud by David J. Bilinsky

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DAVE’S TECH TIPS

8 NOTHING OFFICIAL BC Franchises Act is in Force on February 1 by Tony Wilson

Sections

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SECTION UPDATE Insolvency Law Appellate Advocacy Wills & Trusts – Okanagan Civil Litigation – Tri-Cities/New Westminster

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CHATTER WITH THE CHAIRS

Features 12 CANADA’S ANTI-SPAM LAW IS NOT JUST FOR SPAMMERS by Ryan J. Black 13 FORTIFY YOUR TECHNOLOGY START-UP by Zelius Kleefstra 14 LAWYERS AS PARTNERS by Dana Gordon 18 BARTALK FOCUS ON SOLOLINK by Travis Dudfield

Guests 9

GET OUT OF THE SMOKE AND THRIVE by Steve Brandner

19 IT TAKES A FIRM TO ARTICLE A STUDENT by John Lakes 20 SOCIAL FINANCE, ENTERPRISE AND INNOVATION by Susan Manwaring and Sarah Fitzpatrick 21 EXPLORING THE FAULT LINES by Raman Dasanjh

Inside This Issue As of December 2015, there were 1.17 million employer businesses in Canada. Of these, 1.14 million (97.9%) businesses were small businesses, 21,415 (1.8%) were medium-sized businesses and 2,933 (0.3%) were large enterprises. Western Canada has a robust and growing small business community led by British Columbia, which had 176,014 small businesses as of December 2015. Small businesses and start-ups, no matter what sector they fall into, typically deal with the same or similar issues. With thousands of businesses entering and exiting the marketplace every year, this edition of BarTalk gives the reader a flavor of some of the issues that many small businesses encounter early on or during their small business lifespan.* * All statistics were from Key Small Business Statistics – June 2016 edition – Government of Canada (Innovation, Science, Economic Development Canada).

News and Events 2 22 23 24 25 26

How Trump Could Dump the Paris Agreement Removing Obstacles to Family Reunification Conflicting Decisions on Conflicting Rights 2016 Mentorship Receptions TRU, UVic and UBC CBABC WLF News CLEBC Update BC Legislative Update Branch & Bar Calendar Making the Most of Media Attention What Are Your Top Five? Tips from Courthouse Libraries BC BC’s Legal History by Hamar Foster, QC

Also In This Issue

16 MEMBER SAVINGS 27 LAW FOUNDATION OF BRITISH COLUMBIA 28 PROFESSIONAL DEVELOPMENT 29 DISPLAY ADS 30 BAR MOVES 31 NEW MEMBERS

Click here for LEGAL OPPORTUNITIES and ads DECEMBER 2016 / BARTALK

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FROM THE PRESIDENT MICHAEL WELSH

In Business for Our Members

How the CBA will re-build membership

W

e all know the saying there is strength in numbers. For professional associations like ours that exist for and because of their members, these are words to live by. But like most organizations with voluntary memberships, we experience a slow bleed year to year, with lawyers either not joining, or leaving our association. As stated recently in the Harvard Business Review, “according to the American Society of Association Executives… association membership is declining across the board. The recession certainly didn’t help, but cost-cutting isn’t the only reason for the decrease. Social networks now provide easy and convenient ways for industry members to find each other and network, and the proliferation of online content has led to vast and often free access to the types of information, insights, and training that professionals used to be able to access only through association membership… plus, [associations have] to address Millennial workers who place less value on formal and traditional means of networking, preferring to establish their own relationships in their own ways.”1 Within the CBA, we have seen a particular decline in younger lawyers joining or renewing memberships. This too is not unique to us. “The staff and volunteer leadership of today’s professional associations are faced with two related realities. One, Generation Y is on the cusp of taking over from the Boomers as the most significant cohort in the economy, making them the future of membership. And, two, there has been a slow and steady decline in the membership of many professional associations, with this decline disproportionately concentrated in professionals in the first 10 years of their career.”2 The author notes strategies to address this trend that include: „„Internal changes, especially social media, to recruit, engage and

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BARTALK / DECEMBER 2016

retain members in their first 10 years. „„Succession planning for boards and committees, allowing young people opportunity to contribute in a meaningful way through leadership. “Generation Y isn’t looking for recognition but they are looking for meaningful ways to flesh out the ol’ resumé and network.” „„Peer-to-peer guidance for younger members who wish help, but feel (rightly or wrongly) they are not respected due to age. „„To “leverage your assets,” those things that set you apart. Dwindling membership led the CBA into a “Re-Think” process to re-engage lawyers and find out what they need and want from us. All double negatives aside, we must reimagine our organization so that lawyers realize they cannot afford NOT to be members. We are reducing expenditures on governance so more funds can be allocated to membership supports.

One new initiative is a program called CBA CONNECT for students and lawyers in the first few years of practice. Whether you’re starting law school or getting established in your career, we offer events, programs, networking, career resources and professional development tools to support you on your journey. This is an exciting multi-faceted initiative, available only to our members. So are the Young Lawyers Sections for peer-topeer networking, learning and support, and the “Doing Law DifferentlyFutures for Young Lawyers” materials on how to develop a successful practice in the ever-increasingly changing world. Find them on our website. In BC, we have built supports for students and small firm lawyers through REAL and SoloLink (read about them in this issue) and our proposal to the BC government for a student loan forgiveness program for lawyers who commit to communities that lack sufficient lawyers. We continue to assist all demographics of lawyers in BC, including: rural, urban, at various stages of their careers and those from the diverse backgrounds that make up our Bar. In this way, we are unique in the legal profession. No one does what we do. Click on footnote numbers above for more information.

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Michael Welsh

president@cbabc.org


EXECUTIVE DIRECTOR CAROLINE NEVIN

Law a la Carte

Looking to grow your practice? Think small

D

epending on the stats you look at, and the area of law, between 60 and 85% of people seeking to resolve legal conflicts do not currently access lawyers. That’s not because there aren’t enough lawyers; there are plenty in BC and many more entering the ranks from our three exceptional law schools, not to mention those who migrate here from other jurisdictions. The real challenge lies with a model of service provision that is outdated and unaffordable to too many, because it presumes that there are only two options: full legal service by a lawyer – start to finish – or no lawyer involved at all. Many people are entering legal proceedings with nothing more than what they have been able to garner through the Internet and/or well-meaning services that help unrepresented litigants help themselves. Some people are doing this because they literally cannot afford any assistance and do not get legal

aid coverage due to underfunding by government. Others cannot afford the cost of traditional legal assistance (the “full meal deal”) but may be able to pay for discrete services; for them, the real access problem lies in not being able to find the selective expertise they need, when they need it. Here’s the good news: the judiciary (including Chief Justices), law societies and bar associations here at home and around the world are all making clear that there is a legitimate place for lawyers to provide their services on an “a la carte” basis (also known as unbundled services or limited retainers). What that means is that a huge underserviced market is available to those with the interest and know-how to provide services in a new way that reflects a radical departure from past practice of “all or nothing” legal services. I acknowledge that “market” will be perceived by some as a dirty word. But here’s the reality in BC:

there are many lawyers struggling to make a living in our province who need to find new ways of staying in business, and at the same time there are thousands of people struggling to fight legal battles in a system that was created by specialists and is tough on amateurs. The fact that they can’t

Many people are entering legal proceedings with nothing more than what they have been able to garner through the Internet and/or well-meaning services. afford full legal services should not prevent them from having better access and better outcomes, with a lawyer involved in some way. This is a win:win situation. In addition to those who can truly only afford a small portion

of the cost of traditional legal services, we are also seeing a modern phenomenon of “self-helper” litigants who are consciously autonomous and independent, and want access to a menu of targeted, affordable legal services from which to choose. This reflects changing trends in how people approach many aspects of their lives as informed consumers, and is a genuine market pressure on legal services. From both an access to justice and economic perspective, it’s past time to change practice in response to these new realities. If you are interested in finding out more, and thinking about how you might expand your practice and broaden your impact in your community, I encourage you to look at two terrific CBABC PD sessions on this: Unbundling Demystified and Practical Tools for Unbundling, and a great reference from JP Boyd on Slaw. Mediate BC has some good resources and you can sign up for the Family Law Unbundling ToolKit and Roster. For the most recent word on this subject, I highly recommend watching Chief Justice Bauman.

Caroline Nevin

cnevin@cbabc.org DECEMBER 2016 / BARTALK

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practicetalk DAVID J. BILINSKY

Reducing Your Exposure to Internal Fraud The devil is often hidden in the details r

F

Everybody thinks you’re the lamest We all know you’re a fraud Life can be so frustrating I’m so glad you got caught... r

– Music, Lyrics and recorded by: Hawk Nelson.

raud in the workplace cost Canadian businesses $3.2 billion, reported the CBC in 2011 (the last date I could find statistics). While lawyers have been aware of, and taken steps to prevent, fraud attempts by outsiders on their trust accounts for some time now, there is a largely unacknowledged vulnerability of fraud committed against law firms by employees. The sad truth about internal fraud is that people deny that there is a fraud problem in the first place or only react after a fraud is discovered. Consider these internal fraud facts: „„“On the basis of the evidence it is likely that losses in any organisation and any area of expenditure will be at least 3%, probably near to 6% and possibly more than 10%” (PFK. com “The Financial Cost of Fraud, 2015). „„“25% of internal fraud cases result in losses of a million dollars on average” (Langlois Advocates – Lawyers, “Theft or Fraud by an Employee: Management Rights and Legal Action.” „„ “Previous research suggests that fraud, like many crimes, is under-reported” (Statistics Canada, 2006; PricewaterhouseCoopers, 2005; Smith, 1999). „„“The more steps businesses take to control and uncover fraud, the greater their chances of detecting fraudulent activities and the better their ability to assess

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BARTALK / DECEMBER 2016

the effectiveness of their anti-fraud strategies. Thus, strategies for detecting and preventing fraud are key mechanisms in keeping the costs, direct and indirect, of fraud down” (PricewaterhouseCoopers, 2007). What are the steps you can take to reduce fraud? Trust, but Verify: Trust your employees to do their jobs properly, but take steps to verify that this is in fact the case. Establish Hiring Procedures: Check references of your final candidates. Let your candidates know that you will be doing this. Set up Internal Controls: There are a number of well-established policies and procedures you can put into place now to reduce the opportunity for someone to commit a fraud. Dual Signatures: While trust accounts require the signature of a practising lawyer, there is nothing that prevents you from adding a

second signatory to both your general and trust accounts. Two sets of eye balls looking at a cheque is better than one. Train Employees in Fraud Prevention: By having regular training on how to prevent and detect fraud, your law firm is sending the message on what behaviour is acceptable and what is not. Anti-fraud examiners state that employees are the “best possible fraud detectors.” Conduct Regular Audits: “Internal auditing is an independent, objective assurance and consulting activity designed to add value and improve an organization’s operations. It helps an organization accomplish its objectives by bringing a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control, and governance processes.” (Wikipedia) Monitor Vacation Absences (or lack thereof): “Two classic fraud prevention techniques are mandatory vacations and periodic Continued on page 7 >>> The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: daveb@lsbc.org Blog: thoughtfullaw.com

GO ONLINE FOR MORE INFORMATION


dave’s techtips Internal Fraud THE ASSOCIATION OF CANADIAN ANTI-FRAUD EXAMINERS (ACFE) has a Fraud Prevention Check Up in PDF format in both English and French. It recommends that you perform this check up in conjunction with an Anti-Fraud Examiner but the list provides a good overview of the steps you can take now to reduce fraud. THE LAW SOCIETY OF BC published “The Trust Accounting Handbook” that encapsulates the procedures and rules for operating a trust account. It also publishes a list of the Fraud Alerts to the profession.

PRACTICEPRO has an excellent resource that addresses several types of fraud. RUBINBROWN LLP has a list of 30 internal control considerations in an article entitled “Focus on Law Firms: Managing Law Firm Fraud Risks – An Internal Control Checklist” (June, 2016). THE ASSOCIATION OF CERTIFIED FRAUD EXAMINERS, INC., in an article entitled “Designing an Effective AntiFraud Training Program,” sets out the topics to cover in designing employee training to counter fraud. THE CANADIAN BANKING ASSOCIATION, in an article entitled “Protecting Yourself from Cheque Fraud,” advises “Review your monthly bank

statement or regularly check your transactions through online or telephone banking. If you see transactions you didn’t do, notify your bank immediately and they will investigate.” DAVE SLOVIN, in an article entitled “Blowing the whistle: a well-designed, accessible whistleblower hotline can be a powerful tool in the fight against fraud,” quotes Warren E. Buffett chairman of the board of Berkshire Hathaway, a global investment firm with 180,000 employees, who said after their recently installed hotline, “Berkshire would be more valuable today if I had put in a whistleblower line decades ago.” The issues raised are usually not of a type discoverable by audit, but relate instead to personnel and business practices. © 2016 David J. Bilinsky

Continued from page 6

job rotations. Mandatory vacations of one week or more (consecutively) are helpful, because the employee cannot continuously monitor a fraud scheme while away. Job rotations are also effective at disrupting these schemes especially when the employees are not given advance notice” (Essentials of Corporate Fraud).

Hire Experts: Periodically hire an expert in detecting fraud to examine your policies and procedures and assist in your antifraud steps. Check your bank statement for unusual activity and signatures. If someone has forged your signature, you must detect this and report this to your bank quickly.

There are a number of steps that you can take to ensure that you do not become a victim of internal fraud. However, if the worst should happen, then at least you can take some solace in the fact that you have established systems and procedures that should detect the fraud and ensure that the perpetrator is eventually caught. DECEMBER 2016 / BARTALK

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nothingofficial TONY WILSON

BC Franchises Act is in Force on February 1 So take note!

I

don’t usually write about specific legal matters in this column, which I reserve mostly for entertainment purposes, but I think it’s important for BC lawyers to be aware of some new legislation coming into effect on February 1, 2017. It’s the Franchises Act, and it radically changes how franchises are sold in BC. Given that I’ve had a little to do with the Franchises Act (this is, after all, my practice area), the more lawyers in BC who know about the new law, the better. As of February 1 all businesses franchising in BC must provide to prospective franchisees, a comprehensive franchise disclosure document (called an “FDD”) that discloses all material facts relating to the franchise, including specific matters set out in the Regulations. With a few exceptions (confidentiality agreements, fully refundable deposits and site agreements), franchisors must wait at least 14 days before the franchisee executes the franchise agreement and the franchisor is paid. This is so that franchisees have time to consult with their lawyers and accountants and can make an informed decision about the opportunity. The BC legislation is generally consistent with franchise laws in the five other provinces that regulate franchising, but there are important differences in terms of what must be disclosed that makes drafting of Canada-wide FDDs a minefield. If you’re going to do this sort of work, get familiar with Schedule 1 to the BC Regulations, which lists the items that must be disclosed. Be familiar with the case law, particularly where franchisors have failed to make proper disclosure in the sales process and where rescission has been ordered. As well, you should read the definition of what a “franchise” is. Don’t think that just because your client wants to call the contract a “license” it’s not a “franchise” under the Act. If it walks like a duck and quacks like a duck, it’s probably a duck no matter what you call it.

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BARTALK / DECEMBER 2016

The items that must be disclosed in a BC FDD include a description of the business opportunity itself; a list of all fees and costs a franchisee must pay to establish the business; details of any litigation (including administrative actions/bankruptcy/criminal convictions and pending charges) involving the franchisor, its directors, officers or its associates, a description of any territory granted; and a list of existing and former franchisees for prospects to contact for more information. Audited or reviewed financial statements must also be a part of the disclosure package, together with all contracts the prospective franchisees are required to execute. And even if the matter isn’t specifically listed in the Regulations, you may still have to disclose it if the fact is material (Hint – “material” is defined in the Act). For those acting for franchisees in BC, the remedies for a breach of the act are significant. For example, if a franchisor has made a material misrepresentation

in the sales process, or has failed to disclose a material fact required in its FDD, or has failed to even provide an FDD to a BC prospect, then this will give the franchisee the legal right to utilize the legal remedies available under the Act, including – and depending on the circumstances – rescission of the entire franchise contract. Finally, one of the most significant changes to the law involves governing law and forum provisions for franchise disputes. Litigation by or against a franchisee in BC must, after February 1, be carried out in BC under BC law. This will prevent a Minnesota franchisor from forcing a BC franchisee to hire Minneapolis lawyers to sue or be sued under Minnesota law, at monumental expense to the BC-based franchisee who may lack the financial resources to fund US litigation on $.75 Canadian dollars. This is one of the more important benefits to the BC franchisee community and will go a long way to protect BC franchisees from being strategically and financially disadvantaged by non-BC governing law and forum clauses in their franchise agreements. In addition to being a Bencher of the Law Society of BC, Vancouver franchise lawyer Tony Wilson was a member of the Advisory Group advising the BC government on the Franchises Act and its regulations. His comments do not reflect the opinions of the Law Society, CBABC or their respective members.


guest STEVE BRANDNER

Get Out of the Smoke and Thrive Small town equals big life

I

would like to debunk the myth that Vancouver (aka “The Big Smoke”) is the greatest place on earth, and the only place to practice law in BC if you are a “serious” lawyer. Yes, Vancouver has beautiful mountains, close proximity to ski hills, etc. However, for most lawyers those lifestyle options are illusory. They all take time, which, if you’re running a busy practice to pay off your stratospheric mortgage, is in short supply. After factoring in your commute time of an hour or so (one way) to your castle in the suburbs and, if like me you have school-aged kids, time spent shuttling the rear-seat dwellers to their activities, there is barely enough time to watch SportsCentre at night, let alone partake in any such activities. I moved to a small centre (Vernon) from Vancouver in 2008 and you should too. Here’s why: 1. THE WORK AVAILABLE IS SOPHISTICATED AND SATISFYING. You will likely need

to practice in a broader range of law than you do in Vancouver, but the work itself is fantastic. The high-end work can end up in Vancouver, but if you have the skill set, you will keep the work. Solicitors in my office will handle files from basic wills and

residential conveyances, to multi-year land developments to a recent acquisition in Zambia (with help from local counsel). Litigators regularly handle complex personal injury, real estate, commercial, estate

and family disputes. 2. YOU CAN AFFORD A NICE HOUSE. With a yard. Near your office (my house is six minutes away). And you can pay off your mortgage in a reasonable time. You may even own your office building. 3. IT’S JUST AS BEAUTIFUL AS VANCOUVER. Plus, you get four actual seasons and less rain. When I practised in Vancouver I had an umbrella with me any time I went outside. Now I don’t own one. 4. YOU LIVE CLOSER TO EVERYTHING. Going to a golf course, grocery store, dance recital, ski hill (especially in Vernon) is even closer here than it is in Vancouver. The time savings are immense. You also live closer

to your friends, who all live in the same community, so deciding to have a dinner party with three other couples doesn’t involve coordinating people coming over from three other communities. As a result, it’s easier to have a rich social life. 5. A ONE-INCOME HOUSEHOLD IS COMMON. Lower housing costs means you can own your home and you or your spouse can stay home and raise the kids. 6. COMMUNITY. It is easier to be involved and to develop deep connections within your community because your network of contacts intersects more frequently than in a larger centre. You might sit on a board where other board members are your clients, or a referral source may be your child’s soccer coach. If you are in the Big Smoke and the housing market and demands of practice are conspiring against you to lead a life that is less happy and fulfilling than you would like, you owe it to yourself to look at opportunities in smaller communities (including Vernon!). You will find interesting work, be able to buy a home and have disposable income left over, and have time to enjoy life beyond work. Many of my colleagues initially practised in Vancouver or other large centres before relocating. I consulted them in preparation for writing this article and not one of them regrets their decision to move here. We can’t all be wrong. Steve Brandner is a partner with Nixon Wenger LLP who loves practising in Vernon. DECEMBER 2016 / BARTALK

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sections SECTION UPDATE

Keep Current A review of provincial Section meetings Insolvency Law Meeting in Review: August 2, 2016 Speaker: Peter Roberts, Lawson Lundell LLP Topic: Landlord/Tenant Issues in Insolvency

Appellate Advocacy Meeting in Review: October 6, 2016 Speakers: The Honourable Madam Justice E. A. Bennett, Court of Appeal of British Columbia; Timothy R.B. Outerbridge, Registrar, Court of Appeal of British Columbia; Claire Hunter, Hunter Litigation Chambers Topic: Pro Bono Advocacy Opportunities in the BCCA

Wills & Trusts Okanagan Meeting in Review: October 19, 2016 Speakers: Rob Culos, Culos & Company Law Corporation and Dawson McKay, Culos & Company Law Corporation Topic: BC Estates Case Law Update

Insolvency Law August 2, 2016, Lawson uOn Lundell LLP partner Peter Roberts presented at the CBABC Insolvency Section meeting on the impact of the bankruptcy of a tenant on the landlord/tenant relationship. The presentation highlighted the importance of strategic thinking when advising a landlord whose tenant is insolvent, and outlined the rights and responsibilities of each party, including trustees, in the event of tenant bankruptcy. The trustee in bankruptcy for a tenant has the ability to occupy, retain, assign or disclaim the lease. This eliminates the landlord’s control over the premises, leaves the landlord with a subordinate preferential claim for limited rent, and limits the value of assets on the premises. Mr. Roberts stressed that when advising a landlord or tenant, it is crucial to review the terms of the lease carefully, particularly with respect to whether or not there is automatic termination upon bankruptcy. The presentation also reviewed remedies available to the landlord outside of bankruptcy.

Appellate Advocacy On October 6, 2016, the

uCBABC Appellate Advocacy Civil Litigation Tri-Cities/New Westminster Meeting in Review: October 25, 2016 Speaker: Stuart Cameron, Registrar of the British Columbia Supreme Court Topic: The Ins and Outs of Registrar Hearings

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BARTALK / DECEMBER 2016

Section hosted The Honourable Madam Justice Bennett, Court of Appeal Registrar Timothy Outerbridge and Claire Hunter of Hunter Litigation Chambers in a lunch-hour discussion of pro bono opportunities at the Court of Appeal for British Columbia. Justice Bennett, Registrar Outerbridge and Ms. Hunter provided the Section with an overview of


the programs administered by the Access Pro Bono Society of BC that match pro bono appellate counsel with litigants in need of representation, and answered the Section members’ questions on common issues in pro bono advocacy at the appellate level. Lawyers interested in volunteering are invited to contact Claire Hunter at chunter@ litigationchambers.com.

Wills & Trusts Okanagan On October 19, 2016, at the

uWills & Estates – Okanagan

Section meeting in Kelowna, BC, Robert M. Culos and Dawson J. McKay reviewed recent case law on the topics below. Brief summaries of the facts of the cases were provided as well as the ratios from each case. Some cases were discussed briefly and others were discussed at length.

Standard of Review for Summary Trials of Wills Variations „„Kish (Litigation Guardian of) v. Sobchak Estate, 2016 BCSC 65

Civil Litigation Tri-Cities/New Westminster Registrar Stuart Cameron,

uof the British Columbia

Supreme Court, spoke on the topic of effective registrar hearings. He provided an overview of matters commonly addressed at registrar hearings, and delivered practical advice, commentary, and best practice tips for counsel conducting efficient, cost-effective and ethical hearings. Topics discussed included successful advocacy in settling orders, costs assessments, and reviews of a lawyer’s bill. Noting the apparent rise in issues brought before the registrar in this province, Registrar Cameron also offered insightful

comments on pitfalls to avoid and ways to prevent unnecessary complaints and litigation over legal bills. For CBABC members, more detailed information and available minutes from the Section meetings are online at cbabc.org under CBABC Sections & Forums. UPCOMING SECTION MEETINGS Looking for upcoming Section meetings? Check the online Sections Calendar or the CBA PD Resource site regularly as new meetings are added daily. Enrolled members automatically receive notice of their Sections’ meetings by email. Enjoy the benefits of membership and enrol in Sections today. CBA members are reminded to keep their profiles up to date with the Branch to ensure they receive notices.

Mr. Culos reviewed the following topics: Proof in Solemn Form „„PGT v Johnson, 2016 BCSC 1388 Hospital Bed Wills „„Sommer v. British Columbia (PGT), 2015 BCSC 1947 „„Becker v. Becker, 2016 BCSC 487 Improperly Executed Wills „„Lane Estate, 2015 BCSC 2162 „„Hadley Estate, 2016 BCSC 765 „„Bailey Estate, 2016 BCSC 1226 Dawson McKay reviewed the following topics: Resulting Trusts „„McKendry v. McKendry, 2015 BCSC 2433

Chatter with the Chairs LAURA ANNE BEREZAN Chair of Solicitors’ General Practice – Central Vancouver Island Section This year, the Solicitors’ General Practice – Central Vancouver Island Section will have three events: November 17, 2016 at 4:00 p.m., February 16, 2017 at 1:00 p.m. and May 18, 2017 at 4:00 p.m. All of the events will be at Tigh-Na-Mara in Parksville. They intend to continue with set events on the third Thursday of November, February and May to provide fixed dates so their members can schedule accordingly. They have had a successful course put on by Chuck Blanaru in February of the last couple of years and will continue with that again this year. The format is to have many speakers on various topics of about 15 minutes in length. If your practice involves solicitor’s work and you work in Campbell River or Duncan or anywhere in between, please join the Section and come out to their meetings.

DECEMBER 2016 / BARTALK

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feature RYAN J. BLACK

Canada’s Anti-Spam Law Is Not Just for Spammers Broad reach affects many businesses

T

he law known as “Canada’s Anti-Spam Law” (CASL) came into force on July 1, 2014, and that deceptively narrow nickname1 has unfortunately remained, masking its surprisingly pervasive scope. CASL does not only target “spammers,” as commonly understood (such as duplicitous click-baiters, shotgun marketers or peddlers of illicit goods or schemes). Rather, it applies broadly in electronic commerce, not just to sophisticated or malicious electronic messaging campaigns, but even to single messages or interactions. CASL violations carry the potential for extraordinary penalties of up to $10 million, directors’ and officers’ liability, CRTC regulatory oversight and, as of July 2017, a private right of action bringing with it class action litigation. This underscores the need for careful CASL analysis within each organization, regardless of size or reach. The “anti-spam” arm of CASL prohibits sending electronic messages whose purpose, wholly or partly, encourages participation in commercial activity (“commercial electronic messages” or CEMs) without both certain content and the recipient’s prior consent. Ensuring CASLcompliant content is important, but basically intuitive. Thus, it is CASL’s consent requirement that requires more attention, particularly because of the unexpected breadth of CASL’s application. Essentially, a recipient’s consent must be either “express” or 12

BARTALK / DECEMBER 2016

“implied,” neither of which can be properly interpreted without a close look at CASL’s narrow definitions and exceptions. In fact, the CRTC recently noted that in its investigations, businesses often cannot prove they have consent to send the CEM in question, despite CASL placing that onus on senders.2 Express consent is collected in a prescribed manner (interestingly, messages to collect consent are themselves CEMs requiring consent). Such consent must be collected directly, clearly and separately, not via language buried in form contracts. Implied consent and exceptions are narrowly-scoped and often time-limited under CASL, despite what casual interpretation might infer. For example, implied consent can arise from “existing business relationships,” such as purchasing goods from the sender within the past two years (making this consent difficult to use long-term), and even if a potential recipient gives a business card to a prospective sender, CASL only implies consent for a CEM that itself is relevant to the former’s role or duties (preventing the usefulness of this consent for general mailing lists unless such relevance is guaranteed for all CEMs). This makes properly-collected express consent – clear and, until the recipient unsubscribes, everlasting – the best choice under the CASL regime.

Indeed, a practical compliance technique, for those without sophisticated consent tracking tools, is to rely heavily on express consent, using implied consent windows to collect express consent instead of using implied consent as the substantive basis to send most CEMs. Organizations must consider cataloguing and understanding their electronic interactions that may be regulated by CASL, and maintaining evidence of consent (e.g. audio recordings of oral consent, signed consent forms, recorded dates of transactions and documented procedures). Most importantly, and as recommended by the CRTC in its published guidance3 – organizations should implement, update and enforce policies that frame and document CASL (including collection and evidence of consent) in the specific business context of that organization. Taking these steps can help establish due diligence, a statutory CASL defence, to counter potential CASL violations. CASL’s complexity makes it difficult to prevent all violations, so understanding it and identifying potential compliance issues within the organizational context is critical. An organization that assumes that CASL does not apply – whether to the organization generally or to any of its particular electronic interactions – could be making a costly mistake, particularly in light of CASL’s impending private right of action. Ryan J. Black (ryan.black@mcmillan. ca) is Co-Chair, Information Technology, and a partner at McMillan LLP. Click on footnote numbers above for more information.

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feature ZELIUS KLEEFSTRA

Fortify Your Technology Start-Up A makeshift castle approach

T

HE CASTLE

Numerous parallels can be drawn between a tech start-up company and an ancient castle community. First, the success of both depends on their ability to effectively protect their assets from encroachment. Second, the founders of both initially face significant resource constraints necessitating appropriate resource allocation between competing demands. Finally, both stand to benefit from implementing strategic makeshift solutions to overcome the aforementioned challenges. It is into this often chaotic world that the tech lawyer is thrust when assisting a tech start-up. THE PROTECTION

The principal assets of a tech start-up consist almost entirely of intellectual property. Founders usually appreciate the need to safeguard these assets, but lack the technical legal knowledge to do so themselves. Often, a tech lawyer is therefore retained (and relied on) to construct the walls that will protect the intellectual property from a potential siege. But how comprehensive, complex and customised should this protection be? THE RESOURCES

Given the aforementioned responsibility, it can be tempting to immediately start erecting the walls of Constantinople. The tech

lawyer must, however, recognise that tech start-ups almost universally face critical resource constraints during the early stages of growth. Every brick that is laid by the tech lawyer in defence of the intellectual property will therefore

divert resources away from the core enterprise and/or dilute the equity interest of the founders. It is thus crucial to minimise costs at this stage of the venture. THE RESOURCE ALLOCATION

One of the most effective means of reducing costs is to generate economies of scale by spreading the cost of production widely. Within the legal context, this can and should be done by creating prefabricated template documents that are exceptionally simple, clear and generic. During the early stages of growth, these prefabricated templates should be provided to the tech start-up with the absolute minimum viable amount of customisation (by the lawyer). The aim here is to reduce costs, so as to balance the

need for legal protection with the tech start-up’s resource constraints. THE MAKESHIFT APPROACH

These simple, clear and generic prefabricated templates (with the minimum viable amount of customisation) are unlikely to provide the absolute maximum amount of protection. This is a risk, and the tech lawyer should ensure that the start-up founders understand and accept this risk. The tech lawyer should furthermore explain that these documents are meant to function as a bridge until the cost

of more customised and comprehensive protection can be justified. THE RESULT

If we, as technology lawyers, are unable to reduce the legal costs during the start-up phase, we will increasingly face competition from “do-it-yourself” contract automation software. During the early stages of start-up growth, we should focus on simple, generic and cost effective fortification of a tech start-up’s intellectual property. The protective moat-inhabiting crocodiles can be added later, when the start-up can afford them. Zelius Kleefstra practises technology law as in-house counsel at the Insurance Corporation of BC. DECEMBER 2016 / BARTALK

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feature DANA GORDON

Lawyers as Partners Considerations for an effective partnership agreement*

S

o, you’ve decided to give up the solo life and bring a partner into your practice. Or perhaps you’re leaving a bigger firm but don’t want to go it alone just yet. Having a partner can definitely be a huge benefit, as you’ll have someone to share the management duties, expenses and even confer with over case strategies. But, as with any relationship, it’s never wise to jump in too quickly. And, even though you may have read the Partnership Act, RSBC 1996, c. 348, and followed the CLE checklists, there are some other factors to consider that you won’t find in any of those. In my four years of running my small business firm, I’ve had countless clients in partnerships (or ex-partnerships!) come to me with tales of woe, and these tips will hopefully save you from the same fate. One of the biggest pieces of advice, which is ingrained in all of us as lawyers but which we seldom actually follow, is to “get it in writing.” Your new partner may be a law school classmate, or even your best friend, so you may comfort yourself with the thought that you know them well and they would never betray you. That may be the case, but I can assure you without a doubt that business changes people. Your relationship as business partners will be vastly different from your friendship. And, although things may

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never turn sour, if a problem does arise in the partnership, the friendship element tends to escalate the dispute even further as most people respond with greater intensity when there is a personal connection to their partner. The time to write out your rights, responsibilities and dispute resolution strategies is at the start of the relationship when everyone is happy. However, many people worry that asking their partner to sign an agreement is a signal that they don’t trust that person and they avoid the issue in an attempt not to offend. If you’re concerned about broaching the subject with your partner, take this approach: a partnership agreement is for the benefit of both of you. A proper agreement will be drafted fairly and not be overly one-sided. Even if each partner has unequal ownership rights, both parties have interests to protect. So, if you assure your partner that you’re looking out for both of your best interests, you will likely get a positive response. Once you’ve agreed to draft a partnership agreement, what do you include in it? As mentioned above, there are many precedents available online and in CLE materials that will give you the framework

for a solid agreement. But, logistics aside, there are a few key issues that tend to arise in a lot of partnerships that you’ll want to keep in mind. The first one is – yes, you guessed it: money. If only one of you has it, there can end up being a feeling of inequality no matter how much “sweat equity” you both contribute. Decide early on if a monetary contribution is to be considered as equity or a loan, and record this properly. If it’s considered equity, how does a partner without financial means make an equivalent contribution? If it’s a loan, does payback come from the other partner or from the general revenue? Does the loan get paid back first before the partners can participate in any profit sharing? It can also be a good idea to discuss these options with an accountant to maximize tax strategies. Feelings of inequality can arise based on workload as well. While many sole practitioners handle all the administrative, managerial and legal work themselves, partners may choose to divvy up these tasks rather than having each person become an expert multi-tasker. But when each person has distinct responsibilities, it can be tough to measure if the work is equal. For instance, a partner handling backend work, such as bookkeeping or administrative tasks, may feel like they are working a lot harder than a partner who handles marketing and social media, or vice versa. Therefore, it can be a good idea to include some general managerial Continued on page 15 >>>


Continued from page 14

duties in your partnership agreement. Not to an extent that it completely boxes you into a strict role but enough that, should your partner accuse you of not contributing sufficient time or effort into the practice, you can point to the agreement and demonstrate that you are completing the role that you were given. Even if things end up running smoothly, one partner may choose to leave the partnership. Deciding on mechanisms for termination at the start of the relationship will save a lot of headaches down the road. While I don’t suggest including specific formulas for valuation, as a formula may work well in year one but not be as useful in year 10, it can be a good idea to outline a general process to be followed. The first step should always allow for determination of value by mutual agreement. Formal valuations can be expensive, so it’s best to give yourself the chance to agree on the value on your own before you have to take that step.

I also recommend that you include the option for a second valuation, which can be triggered at the request of one partner if they dispute the first valuation. The second, or any further valuations, will typically be paid for by the person that requested it.

I’ve had countless clients in partnerships (or ex-partnerships!) come to me with tales of woe. Along with buy-out provisions, don’t forget to deal with other partnership assets on dissolution, both tangible and intangible. Make sure to talk about what each of you is bringing into the partnership, and whether it is to become partnership property or will be leaving with you. If you ran the firm on your own before bringing in a partner, you’ve likely built up the brand so you may want to retain the intellectual property that goes along with it. For a practice that operates under a name other than

your personal one, decide which partner, if any, will be permitted to continue using that name if you go your separate ways. And, while you certainly can’t prevent your ex-partner from practising law, you can prevent them from practising it in the office next door! A reasonable non-competition provision should always be considered. Even with a solid partnership agreement, there’s no guarantee that you won’t have issues with your partner, and you may even experience a failed partnership or two before you find your perfect mate. Before you take the plunge, always make sure to take the time to really get to know your potential partner, and don’t ever feel pressured into giving up equity unless you are certain that you’re ready. *Note: most of these tips will also be applicable to Shareholder Agreements.

Dana Gordon is the founder of Benchmark Law Corporation (benchmarklaw.ca), a firm that offers services exclusively to small businesses.

DECEMBER 2016 / BARTALK

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BARTALK / DECEMBER 2016

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17


feature TRAVIS DUDFIELD

BarTalk Focus

On SoloLink

P

icture this for a moment: You are a young lawyer working on a challenging case in Victoria. You encounter a complicated quandary while preparing your documents for discovery. You look around your small firm and realize you are the only lawyer in the office. You frantically dig through your files. No luck. You scour the Internet and cannot find a satisfactory answer to your particular issue. You need advice from someone who has dealt with this problem before, but there is no one to ask. What do you do? Then it hits you. Eureka! You remember you are tapped into a community that is ready and willing to come to your aid. You are a member of SoloLink. You log into the online community, ask your question and receive an answer in almost no time at all. While this is a hypothetical example, it is a regular occurrence for dozens of CBABC members. SoloLink launched as a CBABChosted pilot project in 2014. It was designed as a way for sole practitioners, as well as small firm and in-house counsel, to seek and share advice with other lawyers. The project was developed by the Solicitors’ Practice Issues Committee with the assistance of the Law Society of Alberta’s SoloNet project. In less than two years, SoloLink has quickly become a vibrant community of 175 CBABC members

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who ask questions and receive substantive answers in real-time. Members are free to ask questions about anything impacting their practice. This open-ended approach has facilitated a positive culture where lawyers discuss a wide range of topics from how to handle unpaid client bills to tips on working at home. Or more complex issues like obtaining mortgage discharge from a defunct company and most recently, evicting a squatter. While SoloLink members openly use the private online environment to share advice and practical information, a CBABC staff member can also post questions anonymously on a member’s behalf. One such post sparked a lively discussion that solicited a high number of responses last January. The SoloLink member was acting for a private lender looking to register a second mortgage and was concerned that a broker was trying to bully them. The SoloLink community sprung into action and provided support and expertise in less than 24 hours. Under this issue’s “Start-Ups and Small Business” theme, we decided to reach out to the community to learn about their experience. Here is what they had to say: “When I have a quick question or need a quick second/third opinion, I use the SoloLink. I get an answer quickly, and the answers are succinct, helpful and from the

heart (meaning that it is heartfelt and without any patronizing).” — Tom, Vancouver. “SoloLink is a great tool for practitioners who are seeking an information sharing network. It is particularly useful for those who may be in solo or small practices and who therefore may not have access to many resources. I have found ListServs in practice area-specific CBA Sections to be a valuable tool for collaboration and sharing amongst practitioners. SoloLink operates similarly but without specificity to a particular practice area, which made it a very attractive and valuable resource when I learned about it.” — Stanley, Vancouver. “I have been so pleased with Solo-Link and its content. It has really had a very positive impact on my practice and it is really an incredible tool for sole practitioners (especially in remote communities) and those in small firms. The availability of senior practitioners, including the CBABC practice advisory panel, is beneficial and provides insight, feedback and information that I otherwise would not have… and provides it to me in real time. I can obtain practice advice and input on various legal matters and share my knowledge with others. SoloLink is an awesome resource.” — Denese Espeut-Post, SoloLink Project Manager.

The SoloLink project is fulfilling its foundational objective to facilitate communication between lawyers throughout BC and is successfully filling an immediate need for lawyers without access to resources available in medium and larger firms. If you are interested in taking advantage of this CBABC member benefit, please feel free to contact sololink@cbabc.org. Travis Dudfield is CBABC’s digital content coordinator.


guest JOHN LAKES

It Takes a Firm to Article a Student

Is it time for you to give it a try?

I

recently attended the Call Ceremony for our articling student. It is a moving ceremony to celebrate the end of the long and winding journey for law students to pass the final ritual to be “Called to the Bar” and become a lawyer. As lawyers, we have all gone through the process. For most of the journey we had a certain control over our destiny, but articling, the last step, requires a lawyer to agree to be the “principal” of the law student. We all were lucky enough, in our past, to meet a lawyer who agreed to be our principal. The whole process of retaining and renewing the legal profession requires senior lawyers to become principals to assist law school graduates to become lawyers. If there are no principals for law students, the legal profession will eventually disappear. In the past, the big law firms and government seemed to provide a sufficient number of positions and lawyers agreeing to be principals to meet the number of law students looking for articles. Many lawyers were reluctant to be a principal to a law student, for a multitude of reasons, including: „„ Students were too expensive; „„ The lawyer does not have enough work or their work was too specialized for a law student; „„ Law students would be reluctant to work for the lawyer because

the lawyer was not downtown, or big corporate, or left-wing or not practising in a trendy area of the law. Now the situation has changed. There are many more law students looking for articles – not only Canadian university graduates but also students who attended foreign law schools, particularly in Australia and the United Kingdom. The law students are facing a diminishing number of articling positions particularly from big law firms and government. In the past, our firm has hired law students we knew. In 2015, we had a very good experience with a law student who articled with us. We wanted another law student. As a result, in April 2015,

If there are no principals for law students, the legal profession will eventually disappear. we posted an ad at UBC Law for a law student, hoping to have five or six responses, but we received 32 applicants in four days. The applicants appeared to be older than we expected, with very varied backgrounds, great academic records and interesting life experiences. It was a pleasure to meet the law

students we interviewed. It was very hard to choose a candidate from the applicants but we did and we were very happy with our choice. Our experience having students in the last few years has been very positive. Not only does a good law student challenge your legal knowledge, prejudices, and habits, but a student will also help you appreciate the legal knowledge and experience which you may not have realized you have acquired. A lawyer may be reluctant to become a principal because of the time commitments. The reality is that all of the staff (not just lawyers) of the law firm article the law student on how to practice law, including: „„the economics of a law practice; „„office management; „„client relationships; „„efficient use of resources; „„how to keep time and bill; and „„how to earn a living. Your job as a principal is to train a law student to become a lawyer, however, it is the whole law firm which articles the law student. We are converts to the value of articling a law student. It is an opportunity for the lawyer to review and renew their legal skills and realize, in their years of law practice, they have actually acquired knowledge and a skill. If you have never acted as a principal for a law student, maybe now is the time for you give it a try. It is an experience you will never regret – heck you might even receive help with your iPhone. John Lakes is a partner at Lakes, Whyte LLP. DECEMBER 2016 / BARTALK

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guests SUSAN MANWARING AND SARAH FITZPATRICK

Social Finance, Enterprise and Innovation What are we talking about?

A

young woman is talking about her new innovative idea and setting up a social enterprise. She goes on to say she has a charitable foundation that wants to invest! This has led to questions about “social impact” law – what is it? What is involved? Today’s world is complex and fast-moving – the notions of how entrepreneurs do business and how to help others are also changing. A social visionary needs counsel to assist in their efforts to achieve their missions while complying with the law. This involves working with charities to assist them with compliance with the Income Tax Act (Canada) (“ITA”), in particular as this relates to their revenue generating activity. More and more charities are pursuing social enterprise to enhance their ability to achieve their mission. The ITA requires a charity to ensure it is running a related business. The ITA regulates how charities are permitted to generate revenue through business activities. The activities must be related to the mission of the charity and the activity must be subordinate to the charitable activities. Entrepreneurs need guidance with these issues. Social finance is the term used when talking about investing in social enterprises or in activities that

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pursue social good. Public and private foundations are increasingly interested in devoting resources to such investments. A number of years ago, Canada’s National Advisory Board to the Social Impact Investment Task Force challenged Foundations to have 10% of their endowments invested in mission investments before the year 2020. What does this involve? Mission investing again requires a consideration of various laws that govern the registered charities. Under the ITA, a charity is not permitted to make a grant to a non-qualified donee so it is critical for the Foundation making an “invest-

Social finance is the term used when talking about investing in social enterprises or in activities that pursue social good. ment” in a non-profit to establish the money advanced is a true “investment” and not a grant to ensure it is not offside the ITA. The “prudent investor” rules also need to be considered. Provincial

legislation requires a registered charity to invest its assets prudently. How does this fit with the ITA rules on how a charity can invest its assets? A careful application of the rules together makes mission investing possible. Social innovation is a term being used to identify research activity and efforts to find new ways of solving societal issues. Registered charities, non-profits and for-profits working in this area require assistance to navigate the various regulatory rules that may apply. Providing legal advice to clients

that are running social enterprises; engaging in investments that generate social returns; or conducting innovation requires not only an understanding of long-standing legal rules but also an understanding of the new way entrepreneurs, governments and the social sector are doing things. Susan Manwaring leads Miller Thomson’s Social Impact group, providing specialized tax and general counsel advice to charities, not-for-profits and social enterprises. Sarah Fitzpatrick counsels charities and not-forprofits on governance, regulatory compliance, and gift planning as part of Miller Thomson’s Social Impact group.


guest RAMAN DASANJH

Exploring the Fault Lines

Of a No-Fault System

E

arlier this year, the Insurance Corporation of British Columbia (“ICBC”) proposed a hike in insurance rates in response to increased costs and decreased earnings. As expected, this announcement aroused discussion about the merits of implementing a no-fault system in British Columbia. Now, before we consider an overhaul of our current scheme, careful consideration needs to be given to the potentially harmful effects of a nofault system. There are a number of no-fault schemes throughout North America ranging in their restrictiveness on a victim’s right to sue. The arguments in favour of a no-fault system are usually for faster access to treatment and overall cost savings. Pursuant to Part 7 of the Insurance (Vehicle) Act Regulations, British Columbians have access to No-Fault Accident Benefits (Part 7 Benefits) for reasonable medical expenses up to $150,000 and disability benefits up to $300 per week for employed persons. Under this system, an injured victim still has the option to pursue a tort claim for economic and non-economic losses that are not covered or that exceed the benefits payable under Part 7 Benefits. As a result, our current system allows quick access to funding. Access to funding is unlikely to be improved in any significant way by a more restrictive system.

Significant savings through a no-fault system can only be realized by limiting or denying compensation. Under a no-fault system, injured victims run the risk of being denied full compensation for their injuries. The tort system aims to place an injured plaintiff in the original position he or she would be in absent the defendant’s negligence (see Athey v. Leonati, [1996] 3.S.C.R 458). Canadian courts recognize the importance of considering the individual situation of the plaintiff when awarding damages and the extent to which money can provide solace. A no-fault system will do away with individual considerations

Under a no-fault system, injured victims run the risk of being denied full compensation for their injuries. and award accident benefits based on what is often referred to as a “meat chart.” For example, high income earners are unlikely to receive full compensation for their economic losses because they earn more than the average person.

Whether we care to admit it or not, there is an inherent bias against plaintiffs. The argument in favour of a no-fault system is often accompanied by discussions about the need to crack down on fraudulent claims. The vast majority of plaintiffs seek legal counsel as a last resort. This decision is often made after experiencing pressure to settle a claim without a full appreciation of the injuries. The court system is already equipped to deal with fraudulent claims given that the burden of proof is on a plaintiff to prove loss. A no-fault system will leave vulnerable individuals at the mercy of a claims adjuster to determine funding and compensation. It is often the case that those who are most in need of these resources are those individuals who are not able to navigate the web of paperwork and administrative process on their own. A no fault system will undoubtedly erode an innocent victim’s right to pursue justice. We have reached a good balance under our current system. Injured victims are able to receive funding and treatment while still maintaining their entitlement to further assessment in court. Careful consideration needs to be given to determine whether the benefits of a no-fault system truly outweigh the potentially devastating and irreversible effects. Raman Dasanjh is a lawyer with KazLaw Injury Lawyers. Outside of law, Raman enjoys travelling, cooking and exploring the city. DECEMBER 2016 / BARTALK

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news&events CBA NATIONAL MAGAZINE

Conflicting Decisions on Conflicting Rights

CBA NATIONAL MAGAZINE

Removing Obstacles to Family Reunification Cost vs. Value is one of the principal tensions that plays out in Canada’s immigration policy – fears that family-class immigrants will be a burden on the economy without adding to it tend to trump any consideration of the value these immigrants will bring. “The economic, social and cultural benefits of family reunification have been underestimated, particularly when the analysis of these benefits includes multiple generations,” the Immigration Law Section says in a submission it prepared for the House Committee on Citizenship and Immigration’s study of family reunification. Section Chair Vance Langford appeared before the committee in late October. (Vance Langford also spoke briefly with nationalmagazine.ca) The Section supports the principle of family reunification as an objective of the Immigration and Refugee Protection Act and has 22

BARTALK / DECEMBER 2016

several ideas for improving an obstacle-ridden process which can stretch well beyond reasonable limits of time and patience. One overarching barrier to the acceptance of family-class immigrants is the perception that parents and grandparents will place unwonted pressure on the Canadian social safety net, a perception for which there is little supporting evidence. “Recent studies indicate that the net positive impact of the noneconomic contributions of parents and grandparents on the economy, including child care, assistance with family business activities, emotional support, cultural education, volunteerism, maintenance of social cohesion and housekeeping – in addition to the financial resources they may contribute – is often overlooked,” the Section says. Read the full article

On November 8, 2016, the Law Society of British Columbia (LSBC) announced its intention to seek leave to appeal to the Supreme Court of Canada the recent decision of the British Columbia Court of Appeal in Trinity Western University v the Law Society of British Columbia. Trinity Western University (“TWU”) has already filed its leave application in the parallel Ontario case. The opposing conclusions reached by the appeal courts in British Columbia and Ontario on the reasonable balance between the religious rights of the TWU community and the equality rights of LGBTQ Canadians are sure to make for a particularly contentious debate at the country’s highest court. The facts of the TWU law school dispute are by now well known: all TWU students must sign a Community Covenant that prohibits sexual intimacy outside of heterosexual marriage. In 2014, the law societies of British Columbia and Ontario (as well as Nova Scotia) denied TWU’s applications for accreditation of its proposed law school on the basis that the Covenant discriminates against LGBTQ students. The refusals mean that graduates of TWU would not be eligible to be called to the Bar in these provinces. TWU sought judicial review of these decisions. Read more


EVENT RECAP

2016 Mentorship Receptions TRU, UVic and UBC

Peter A. Allard School of Law, UBC Mentorship Reception and Scholarship Presentations, Thursday, October 27 (L-R): Jennifer Chow, CBABC Past President and Leah Combs, winner of the CBABC Entrance Award.

TRU mentorship reception, Monday, October 17 (L-R): Christi McAuley, Director Career Services; Bill Veenstra, CBABC Vice President; Alexis Kazanowski, Assistant Dean; and Michael Welsh, CBABC President.

At UBC (L-R): Dave Hodgson, Canadian Bar Insurance Association and Victoria Wicks, winner of the Canadian Bar Insurance Association Student Achievement Award.

UVic Mentorship Reception and Scholarship Presentations, Tuesday, November 1 (L-R): Rebecca Whitmore, winner of the CBABC Entrance Award and Bill Veenstra, CBABC Vice President

At UVic (L-R): Aysegul Karakucuk, winner of the Canadian Bar Insurance Association Student Achievement Award and Bill Veenstra, CBABC Vice President.

DECEMBER 2016 / BARTALK

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news&events CBABC WLF NEWS

CBABC Women Lawyers Forum Call for Nominations The CBABC WLF seeks nominations on or before 4:30 p.m. on Friday, January 20, 2017 for two awards to be presented at the CBABC WLF’s Awards Gala on April 27, 2017.

CBABC WLF AWARD OF EXCELLENCE 2017

The CBABC WLF Award of Excellence celebrates the accomplishments of a woman who has succeeded in breaking new ground for women in the legal profession in BC. This award celebrates the woman’s distinguished career achievements and her outstanding contributions to women in the legal profession as a change agent, leader and mentor. Candidates must have successfully advanced changes in the practice of law for women lawyers, including: leadership, mentoring, education, writing, the development of policies, systems, development of new firms and community work. Consideration is given to candidates who have worked on issues related to the practice of law for women, retention, upward mobility, firm culture, general advancement of women in law, or who have broken new frontiers for women through their leadership roles.

DEBRA VAN GINKEL, QC MENTORING AWARD 2017

This award honours the memory and accomplishments of Debra Van Ginkel, QC, who believed that all people, women lawyers especially, need a mentor to support and encourage them in their profession and their lives. Candidates must support women’s issues and be a role model for women in the law by building trusting, collaborative and authentic relationships. Candidates must be empathetic, encouraging and nonjudgmental while celebrating others’ successes. Candidates must have participated for at least one year in the WLF Mentoring Program and be current members of the CBA and the CBABC WLF. Nomination forms and further information are available from cbabc.org or call toll free at 1-888-687-3404 or 604-687-3404.

NEWS

CLEBC Update RESOURCES FOR ADVISING SMALL BUSINESSES AND START-UPS Advising small businesses and start-ups can sometimes be overwhelming. Your client may request advice on tax issues one day and employment issues the next. CLEBC’s Advising BC Business practice manual is specifically designed to address the wide range of issues that arise when advising small businesses.

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This pragmatic, BC-focused manual covers all stages of advising a business, from incorporation to bankruptcy, and provides detailed guidance on topics such as: „„Organizing, operating, and financing a business; „„ Business acquisitions, due diligence, and legal opinions; „„ Tax, IP, employment, real estate, and insurance issues; and „„ Resolving disputes, estate planning, and bankruptcy. This award-winning manual also features 60 first-class precedents for business law letters, agreements, and court documents to save you time.

For those looking for specialized learning, CLEBC invites you to join them on April 19, 2017 for their first Working with the Tech Start-Up course. Truly a unique educational opportunity, this course will bring lawyers and start-up experts together to explore the culture of tech startups along with the legal and business advice needs specific to the tech industry. For more information, call CLEBC customer service at 604893-2121 or visit cle.bc.ca today.


BC LEGISLATIVE UPDATE

ACTS IN FORCE

Current from August 24, 2016 to October 25, 2016 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org. „„ FRANCHISES ACT, S.B.C. 2015, C. 35 (BILL 38) Act is in force February 1, 2017

BRANCH & BAR

Calendar

DECEMBER

7 Residential Real Estate Conference 2016 — Vancouver

JANUARY

25 CBABC PD Webinar: Big, Bold and New! BC’s Franchises Act 27 CBABC PD Seminar: Practice in Provincial Courts — Richmond 27 CBABC PD Webinar: High Conflict/Demanding Clients 28 Provincial Council — Richmond

„„ GREENHOUSE GAS INDUSTRIAL REPORTING AND CONTROL AMENDMENT ACT, 2016, S.B.C. 2016, C. 15 (BILL 19) Section 7 is in force October 25, 2016 „„ LIQUOR CONTROL AND LICENSING ACT, S.B.C. 2015, C. 19 (BILL 27) Sections 1 to 82, 83(a), (c) and (d), 84 to 90, 92, 94 to 96, 98, 101(c) to (i), 102, 103, 105, 107 and 110 to 118 are in force January 23, 2017 „„ LIQUOR CONTROL AND LICENSING AMENDMENT ACT, 2014, S.B.C. 2014, C. 13 (BILL 15) Section 45(a) is in force January 23, 2017 „„ MISCELLANEOUS STATUTES AMENDMENT ACT (NO. 3), 2015, S.B.C. 2015, C. 42 (BILL 41) Sections 14 to 16 are in force October 17, 2016 „„ MISCELLANEOUS STATUTES (HOUSING PRIORITY INITIATIVES) AMENDMENT ACT, 2016, S.B.C. 2016, C. 27 (BILL 28) Sections 18 to 42 are in force September 30, 2016 „„ SAFETY STANDARDS AMENDMENT ACT, 2016, S.B.C. 2016, C. 17 (BILL 13) Act is in force November 7, 2016

CBA NATIONAL MAGAZINE

Making the Most of Media Attention A journalist approaches you in the courtroom. What should you do? Jason van Rassel has been the “approacher” in this scenario hundreds of times. The former Calgary Herald justice reporter is now the journalist-in-residence at the University of Calgary Faculty of Law, and teaches law students about a variety of media topics – from pitching stories to the media to managing crisis communications. “Reporters and lawyers don’t do the same things, but both have respective roles in keeping a court open to the public,” says Rassel. “There should be a cooperative relationship.” Lawyers shouldn’t be afraid of the spotlight, he adds: the media can be a great benefit to your clients and your practice. To attract media coverage, consider your audience and the story you want to tell. Read more about Media Relations 101

WHAT ARE YOUR TOP FIVE? Tom Do chimes in with another of his top five:

TOM’S TOP FIVE LIST OF CANADIAN “LEGALESE” THAT THE PUBLIC GETS WRONG: 1. Judges use a gavel in court; 2. Some judges and lawyers wear wigs in court; 3. A Canadian J.D. degree is higher than a Canadian LL.B. degree; 4. “The judge was seized of that matter” means that the jurist had a medical seizure in court; and 5. The Canadian Bar Association has jurisdiction over taverns and pubs. Don’t let Tom do all the heavy lifting, send bartalk@ cbabc.org your top five list(s) and we will publish them in an upcoming issue.

DECEMBER 2016 / BARTALK

25


news&events TIPS FROM

Two landmark pieces of legislation are being introduced that may impact a large number of small businesses and societies in the province. The new Societies Act, SBC 2015, c 18 came into force November 28, 2016 and under the new legislation, the existing 27,000 + societies in the province have a two-year period to transition under the landscape of the new Act and regulations. The new Act will create new definitions and governance standards for categories of societies, along with other changes. The new Franchises Act, SBC 2015, c 35 is set to come into force by Regulation on February 1, 2017. This new Act serves to modernize and streamline BC’s franchise legislation to more closely mirror legislation in other provinces by, among other things, increasing franchisors’ disclosure requirements and creating needed legal protections for franchisee business owners. Staying on top of changes in legislation is always critical to providing timely and accurate counsel to clients. There are number of tools that can help you stay on top of these pieces of legislation and others. By signing up for Alerts through Quickscribe’s BC Legislative Digest, you will receive emails with detailed and timely notification of both recent and proposed changes to laws of your choosing. Similarly, the Bill Tracker Tool will keep you informed with RSS feeds before a Bill becomes law and the Law Tracker Tool will notify you as amendments are made to legislation. While the full features of Quickscribe are only accessible with an account (or through computers located at Courthouse Libraries locations) signing up for alerts and feeds can be done without a full account.

BC’s LEGAL HISTORY

WHEN IS A LAW NOT A LAW? GETTING IT RIGHT IN COLONIAL VANCOUVER ISLAND

LOOKING BACK III:

by Hamar Foster, QC

The colony of Vancouver Island was established in 1849 and, constitutionally, it was a rather odd duck. It was not, as is so often said, a Crown colony but a proprietary one – the fee was in the Hudson’s Bay Company – with executive authority in a governor appointed by the Crown. As the senior official in the Colonial Office said at the time, it was an anachronistic hybrid that could be maintained only so long as the colonists were “too few and feeble to shake it off.” It did not help when, after a few years, the Colonial Office discovered that Governor James Douglas, like his predecessor, had been governing without calling a representative assembly. He had not done so because of the very small number of settlers, and he had relied on a dubious clause in his commission as justification. However, because Vancouver Island was legally classified as a “settled” rather than a conquered colony, the settlers had a right to an assembly that only the Imperial Parliament could take away. All legislation enacted by the governor and his council since the colony was founded was therefore void. Accordingly, in 1856, the Colonial Office established a supreme court for the colony by Imperial order in council and ordered Douglas to stop legislating and confine himself to “preserving the peace” until a representative assembly was established later that year. Next: similar blunders on the mainland… Further reading: James E. Hendrickson, “The Constitutional Development of Colonial Vancouver Island and British Columbia,” in Ward and McDonald, British Columbia: Historical Readings (Douglas & McIntyre 1981) @ 245-274. It is also the introduction to the five volume Journals of the Colonial Legislatures of the Colonies of Vancouver Island and British Columbia 1851-1871 (Provincial Archives of BC 1980).

26

BARTALK / DECEMBER 2016


announcements LAW FOUNDATION LAW FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA

PLEI Programs Funded by the Law Foundation of BC The Law Foundation of BC funds several Public Legal Education and Information (“PLEI”) programs that reach clients across the province. The Legal Services Society (“LSS”) produces print, web and multimedia PLEI, and distributes more than 100,000 free English and multilingual publications each year. It provides information on MyLawBC, Family Law in BC, Aboriginal Legal Aid in BC, and the LSS website. MyLawBC guides users through legal issue pathways on family violence, foreclosure, personal planning/wills and family law. It includes an online Dialogue Tool where self-represented separating couples can access resources and negotiate a separation agreement. The Family Law website, with about 50,000 users a month, is supported by Live Chat services from Pro Bono Students Canada volunteers. LSS also posts legal information regularly to Facebook, Twitter, The Factum blog, and YouTube. LSS provides free PLEI and advocacy training for hundreds of advocates a year, plus training and services through community partners (contracted community agencies that triage legal problems and provide

direct services, help with websites and publications, and referrals to community and legal aid services). The People’s Law School provides free legal education and information to help British Columbians effectively deal with the legal problems of everyday life. It provides plain language information online and in print, collaborates with partners to bring legal education programs and learning experiences to community settings, and connects people with legal information and assistance that meets their needs. A new website, under development for early 2017, will feature practical tools such as template letters and tips that help people resolve everyday legal problems. The new site will feature content in three priority areas – consumer law, debt, and accidents and injuries. The Law Foundation funds several programs by the Justice Education Society (“JES”). Ask JES Legal Help is a program that provides information and help for people with legal issues related to family, working, debt and more. JES publishes more than 150 legal help guides that are available in 100 languages, plus 90 videos. On weekdays, Ask JES is available to answer legal questions from 11:00 a.m. to 2:00 p.m. by phone, live chat or by email. JES also has a range of legal education resources for teachers that comply with the new BC schools curriculum. JES partnered with the BC Teachers’ Federation to design these lessons as go-to resources for teachers. The Society is also working with volunteers to

extend the reach of the Justice System Education Program. Courthouse Libraries BC provides legal information to the public online and in person through several programs: Clicklaw makes it easy for people in BC to search a comprehensive collection of PLEI produced by organizations. Clicklaw also enhances co-ordination – for example, the Clicklaw blog helps people stay updated with legal information, events and help. Clicklaw Wikibooks is a platform for lawyers and PLEI organizations to publish fully searchable information online, while also providing print-on-demand functionality. LawMatters supports BC local public libraries to carry basic legal titles. A blog for librarians provides current information about resources. Another program, Dial-a-Law, run by the BC Branch of the Canadian Bar Association provides 24-hour access to a library of 130 pre-recorded messages on legal topics (122 of these are available in Chinese and 83 are available in Punjabi). An operator helps callers during peak call periods on regular working days. Scripts are also available online, both in written and audio format. In 2015, the scripts were also converted into wikibooks on Clicklaw. Another legal education initiative is run by the Debate and Speech Association, which organizes a two-day provincial tournament for 150 high school students to debate legal topics. The Law Foundation Cup Provincial Championship is held annually in different parts of BC.

DECEMBER 2016 / BARTALK

27


professionaldevelopment

WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\

CBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, advance one’s career, practice and business. We pride ourselves on bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management components for 2016 Law Society reporting.

Upcoming In-person Seminars PRESENTED BY THE BC BRANCH OF THE CANADIAN BAR ASSOCIATION

Practice in Provincial Courts (Min. of 6 CPD hours) Date: January 27, 2017 Location: The Westin Wall Centre, Richmond Speakers: Various

How to Run Your Firm Like a Business

(6 CPD hours) Join American Bar Association author and seasoned small firm consultant Ann Guinn for a candid exploration of the proven “must-dos” of running your firm like a business.

On Demand CPD RECENTLY ADDED WEBINAR REPEATS „„ Unbundling

Part 2: The Tools to Make It Happen

„„The

Ribbon Cut: The New Civil Resolution Tribunal and Stratas

„„New

Law, New Issues: End of Life Planning in a Changing Legal Landscape

„„ Unbundling

Demystified: Practical Tips from Lawyers Using It

„„ A

complete list of On-Demand CPD

28

BARTALK / DECEMBER 2016

Date: February 3, 2017 Location: Best Western Plus Chateau Granville, Vancouver Speaker: Ann M. Guinn

Upcoming Webinars Big, Bold and New! BC’s Franchises Act Date: January 25, 2017 Speakers: Sheena Mitchell, Corporate Law for Small Business and Entrepreneurs; Tony Wilson, Boughton Law Corporation

High Conflict/ Demanding Clients Date: January 27, 2016

Moderator: Rhona Lichtenwald, Hillcrest Law & Mediation Speakers: Alyson Jones, Registered Clinical Counsellor, President of Alyson Jones & Associates; Morag J. MacLeod, MacLeod Law; and Simon Kent, Kent Employment Law

How to Get Off the File, Get Paid and Avoid LSBC Complaints Date: April 26, 2016 Moderator: Rhona Lichtenwald, Hillcrest Law & Mediation Speakers: Gurprit Copland, Law Society of BC Complaints and Discipline/Professional Conduct – Manager, Intake and Early Resolution; Morag J. MacLeod, MacLeod Law; and Simon Kent, Kent Employment Law

Four Hours of Complimentary PD All CBABC members receive complimentary access to special PD modules that fulfill the Law Society of British Columbia’s ethics/practice management requirement. „„E-Learning Ethics Modules 1 & 2 (2 CPD hours) „„Open Discussions on Current Topics with the Three Chiefs

(2 CPD hours)

uuu More details: cbabc.org/Membership

A Friendly Reminder Deadline to report your 12 hours of continuing professional development (CPD) is December 31, 2016. At least two of the 12 hours must pertain to any combination of professional responsibility and ethics, client care and relations, and practice management. Looking to complete your CPD or Family Law ADR Professionals maintenance accreditation? We can help! uuu Please contact us by email: pd@cbabc.org, or by phone: 604-687-3404, select option 2.


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29


barmoves Who’s Moving Where and When

30

Sandra M. Katalinic

Lindsay Dykstra

joined Eyford Macaulay Shaw & Padmanabhan LLP as associate counsel. Sandra practises in the areas of personal injury, motor vehicle and insurance claims.

has joined McMillan LLP as an associate with their Business Law group. Lindsay was called to the BC Bar on September 8, 2016.

David Namkung

Michelle Fung

Partner at The Counsel Network, has been elected President of the Federation of Asian Canadian Lawyers (FACL) BC’s chapter. David previously served as Vice-President of FACL BC.

will be joining the McMillan LLP Hong Kong office beginning in October 2016. Michelle was called to the BC Bar on September 8, 2016.

Ravipal Bains

John Doolan

has joined McMillan LLP as an associate with their Capital Markets group. Ravipal was called to the BC Bar on September 8, 2016.

has joined Miller Thomson LLP’s Vancouver Office as a partner in the Real Estate group.

BARTALK / DECEMBER 2016


SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND A HIGH-RESOLUTION PHOTO TO BARTALK@CBABC.ORG NOW. TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1612.

Heather Jones has joined Miller Thomson LLP’s Vancouver office as a Commercial Litigation partner. Heather has extensive practical experience in a broad range of litigation with her focus being complex corporate/commercial matters.

Silvano Todesco joins Access Law group as an associate, practising in the areas of strata, real estate law and estate litigation.

Jonathan Chapnick is now the Senior Advisor, Workplace Mental Health at UBC. He provides inhouse advice in relation to workplace mental health and substance use issues, and develops related policies.

Derek Mah has joined Harper Grey LLP as associate counsel with its Critical Injury group. Derek was called to the BC Bar in 2004.

newmembers September & October 2016 Associate

Amanda Ferriss Bull, Housser & Tupper LLP Vancouver

Gerald T. Merritt ADX Advanced Directives Xtended, Inc. Bellingham

Matthew Gauk F Kenneth Walton Law Corporation Victoria

Lawyers Jonathan C. Bellamy Bellamy Law Vancouver Ashley A. Caron Hunter Litigation Chambers Vancouver Charles R. Chan Maxwell Hopman Mennie Vancouver Amrit Pal K. Dhillon Vancouver Jessica Fairbairn Harris & Company LLP Vancouver Caroline Lee Coast Capital Savings Credit Union Surrey Corri Longridge Dentons Canada LLP Vancouver Jasmeet K. Mangat Sanghera Sandhar Law Group Surrey Breen C. Ouellette Laird A Hiatt Law Corp. White Rock Manjot K. Parhar McQuarrie Hunter LLP Surrey

joined Wilson Rasmussen LLP in Surrey as an associate, practising in the areas of real estate law, wills and estates and business law.

Taylor J. Paulson Montgomery Miles Law Firm Kelowna Caroline Senini Supreme Court BC Vancouver Casey Trivett Einfeld Law West Kelowna Brett Weninger Harper Grey LLP Vancouver

Law Students Judith Acevedo Paz Kamloops Euguenia Adamovitch Vancouver Kendal Allemekinders Langley Ali Al-Samak Kamloops Emily L. Amirkhani Victoria Curtis Armitage Vancouver

Chenxi Peng Vancouver Simran S. Randhawa Kanwar Simran Lawyers (LLP) Surrey

Sherry Kooner

Hana Holbrook Kornfeld LLP Vancouver

Adrian Armstrong Vancouver Simranjit Arora Kamloops

Gary T. Wool Yellowknife Legal Aid Law Office Yellowknife

Scott Ashbourne Kamloops

Articling Students

Faizan Babar Kamloops

Taylor Dalziel Guild Yule LLP Vancouver

To view all new members please visit

James Ashford Kamloops

cbabc.org/bt/nm_1612. DECEMBER 2016 / BARTALK

31


RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3


BarTalk | December 2016