FAMILY DEBT | BANKRUPTCY AND INSOLVENCY | GARNISHMENT | WHAT IS REAL?
F EB RUARY 2017 | bartalkonline.org
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VOLUME 29 / NUMBER 1
FROM THE PRESIDENT Making Justice Political by Michael Welsh
EXECUTIVE DIRECTOR Is it Time to Declare Bankruptcy? by Caroline Nevin
PRACTICE TALK Are We Replaceable? by David J. Bilinsky
DAVE’S TECH TIPS NOTHING OFFICIAL Canada at 150 by Tony Wilson, QC
SECTION UPDATE Family Law – Vancouver Insolvency Law Children’s Law Civil Litigation – Vancouver Island Criminal Justice – Vancouver
12 "ATTACHMENT" THEORY FOR LAWYERS by Greg T. Palm 13 BANKRUPTCY AND INSOLVENCY IN A GLOBAL CONTEXT by Peter Bychawski 14 BANKRUPTCY AND FAMILY LAW by Samantha J. de Wit 15 PITFALLS OF NEGATIVE NET WORTH by Brandon Hastings
CBABC’S AGENDA FOR JUSTICE by Bill Veenstra
18 AVOIDING LAW SOCIETY COMPLAINTS ABOUT FEES by Carolyn Anderson 19 THE CIVIL RESOLUTION TRIBUNAL’S NEXT STEPS by Shannon Salter 20 WHAT IS REAL? by Travis Dudfield
Inside This Issue What needs to be considered when a lawyer, who holds funds in trust for a client, has been served a garnishing order by a client’s creditor? How does the concept of COMI (centre of main interest) apply to a Canadian debtor subject to foreign insolvency proceedings? In the family law context, what simple concepts in an Order or Agreement can result in different outcomes when bankruptcy is at play? With the theme of Collection and Bankruptcy, this issue of BarTalk explores these topics and others, including some great updates on the continued efficiencies of technology on the practice of law.
News and Events 2 Call for Awards Nominations 22 Abusing Civil Forfeiture in Canada Record-Breaking Number of Submissions to Government Understanding Surveillance Technology 23 Upcoming Professional Development in Your Community 24 CBABC WLF News CLEBC Update 25 BC Legislative Update Branch & Bar Calendar BC Law Week Reminder 2016 Georges A. Goyer, QC Memorial Award Recipient 26 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
21 ELECTRONIC CIVIL LITIGATION by Neil Hain
30 BAR MOVES 31 NEW MEMBERS
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FROM THE PRESIDENT MICHAEL WELSH
Making Justice Political
CBABC is championing access to justice as an election issue in 2017
he news last year was dominated by national elections worldwide, some with surprising or disturbing results – Iceland with the growing strength of the Pirate Party, the Philippines with its assassin president, Uzbekistan with an electoral sham, and most recently in the USA. In BC, electioneering continues into 2017 as we move toward a provincial election on May 9th. For the CBABC, indeed for all in the legal profession, this is a time to press all political parties and candidates to support an invigorated justice system, with access by all. To this end, we have spent several months developing our Agenda for Justice, a platform of considered priorities to improve the law and the legal system. The details are set out in the article in this issue by VP Bill Veenstra, who led the work on it. We are asking all our members to familiarize themselves with it and to attend political debates and rallies of the political parties and to meet with local candidates to explain its importance to all in our society. A main focus is a properly funded legal aid system. Too often justice issues are compartmented as affecting only a small part of our citizens, rather than all of us. That is not so. Communities cannot thrive unless their residents have speedy and affordable access to justice. We need investments in legal aid and court resources to ensure that all British Columbians have access to adequate representation, particularly when it comes to family and criminal law. Families are the basis of our society, and we cannot be a strong society without strong support – including legal support – to families. As lawyers we know those charged with crimes are still presumed innocent, and they – and we – need a system that resolves their cases correctly with a proper prosecution and defence, especially for our indigenous population
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so over-represented in jails and prisons. We have the second lowest paying legal aid system in Canada. At $84 per hour for family and child protection cases, most lawyers simply cannot afford to act. Their overhead vastly exceeds that payment, meaning in reality they are the ones paying for legal aid, not government. Provinces such as Ontario and Newfoundland pay about $135 per hour, as does BC for lawyers acting for the government in child protection cases – more than 1½ times higher. We have a crisis in our child care system, again especially for our indigenous citizens, and we need to invest money so that families caught in it have help. Access to justice also means access to courts. This requires an adequate complement of judges, sufficient court staff and sheriffs, and properly functioning courthouses for all our communities. At present,
there is no required number of Provincial Court judges. The proper number needs to be determined and legislation setting a fixed complement passed. An increasing number of small communities are without lawyers, as the established ones retire. High student debt means most newly-called lawyers have to look for work in firms in larger centres with an immediate income. They cannot take the time to build a practice in a small community without some immediate debt relief. We continue to press for student loan forgiveness programs like those available to medical professionals. Businesses and families in our communities need lawyers – whether for wills and estates, family issues, property or commercial matters – as much as they need teachers, doctors and other professionals. We also advocate for reform of certain provincial legislation, including to provide proper wrongful death benefits, improve cyclist protection and update commercial tenancy law and for coordinated restorative justice initiatives. The justice system is an integral part of our social structure and strengthening it needs to be part of the conversation in this election.
EXECUTIVE DIRECTOR CAROLINE NEVIN
Is it Time to Declare Bankruptcy? Starting the new year afresh
his issue of BarTalk includes a focus on the theme of bankruptcy. I am grateful that I don’t have any experience in the financial aspects of this, but with a New Year upon us, it seems a good time to consider the concept in larger context. Bankruptcy is defined by Webster as “a chance to start fresh by forgiving debts that simply cannot be paid, while offering creditors a chance to obtain some measure of repayment based on the assets available for liquidation.” What if we applied that concept to those of our debts that have no obvious monetary value? I am talking here about our three biggest “creditors” when it comes to our life and personal energy – Family, Friends and Self. Many of us are overdrawn with more than one of these, and possibly all. So, how do we move forward to leave old debts behind and
create new value-adding accounts with each? Unfortunately, being smart doesn’t necessarily help you with this one. Being strategic does. Let’s start by understanding that personal energy/vitality is a renewable resource and that this is NOT a zero-sum game. Giving energy to one area doesn’t have to mean a loss to others, and in fact some have consistently greater pay-off than what we invest. We need to be constantly aware of which activities help renew energy; which deplete but are either useful or unavoidable; and which serve little purpose but drain us beyond our ability to pay other important creditors. It sounds so simple, but it’s definitely not easy – choosing to move beyond and repair energy bankruptcy is a big decision requiring fierce vigilance, practice and commitment. Which brings me to the most important of your creditors – “Self.”
Look hard at all aspects of that particular account: what’s the current weighting of your physical, mental, emotional and spiritual investments? They don’t have to be equal, but even a risk-taking portfolio has some balance. Gains in Self inevitably have greater payoffs everywhere, so a good advisor would suggest this single area offers the best value for your post-bankruptcy payment plan. This leads me to the topic of work. To many of us, work is an essential part of our identity and happiness. We invest a lot in that aspect of our lives, and we gain many good things from it. But work is only one part of us and too often the biggest culprit when it comes to incurring an energy debt. It can be an insatiable creditor, worthy of a tough Trustee (assign yourself!) to dictate the size, scope and timing of its payments. Other creditors
have claims too, and it’s your job in a bankruptcy to make sure that all – not just some – receive their due. On the topic of Family and Friends, I will say only this: technology is great, but human contact is better, whether telephone (how quaint!), FaceTime/Skype (soon to be quaint) or inperson (never going out of style). Meaningful interpersonal interactions are scientifically proven to positively affect the brain, hormones and overall wellbeing. The same is true for practices that strengthen optimism and gratitude. We all know that this is a time of global turmoil, cynicism and negativity. At work, at home and online, the swirl of demands on time, energy, thoughts and emotions feel way beyond our control. Against that onslaught, you DO have the power to prioritize your personal energy creditors, figure out what’s possible to give, and gently rebuild positive balances with each. There are lots of resources at CBA and LAP to help you. Become the Trustee of your own life, and make 2017 the year you start fresh!
email@example.com FEBRUARY 2017 / BARTALK
practicetalk DAVID J. BILINSKY
Are We Replaceable?
Artificial Intelligence (AI) and the law If artificial love makes sense I just want your love, I’m an addict Artificial intelligence... r r
– Music, Lyrics and recorded by: Tedder, Kutzle, Gabriel, Wilmot, recorded by OneRepublic.
s I write this, our robot is cleaning our condo. We watched it for the first while, to ensure that it wasn’t sucking up power cords or knocking down plants and such. That supervision part lasted all of… five minutes. Feargus (you must name your robot – I was personally leaning to “Felix,” after the neat freak from The Odd Couple but was outvoted) quickly gained our confidence and is hard at work cleaning up dust bunnies and the like. Feargus goes around furniture, under beds, around obstacles and “learns” the layout of your place. Once done (or needing more juice) it finds its way back to its charging station and reconnects, awaiting its next scheduled cleaning time. So what does a vacuum robot have to do with the practice of law? Well, while we are putting “Feargus” to work vacuuming up, other lawyers are putting “ROSS” to work at the practice of law. For example, ROSS has been put to work at Baker & Hostetler (“B&H”) in its bankruptcy practice. Steve Kestner, Chairman of B&H, said, “ROSS is a tool to help improve our work processes, reduce costs, and ultimately generate better results for our clients.” ROSS is built on IBM’s Watson, a cognitive technology that can think like a human and yes… learn. I can hear the doubting Thomases, saying that no machine can think like a human and replace a lawyer. Think again.
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According to IBM.com: “Not only can ROSS sort through more than a billion text documents each second, it also learns from feedback and gets smarter over time. To put it another way, ROSS and Watson are learning to understand the law, not just translate words and syntax into search results. That means ROSS will only become more valuable to its users over time, providing much of the heavy lifting that was delegated to all those unfortunate associates.” Have lawyers put ROSS to work? As of December 2016, eight major US law firms have hired ROSS. Partners of firms “seem to benefit the most from ROSS’ law monitor AI, which keeps them up to date on any changes to the law for all the cases they are working on.” The developers of ROSS expected their market to be solos and small firms. Instead, they found that medium to large firms and inhouse counsel took to ROSS.
There is a bit of an adjustment when starting to use AI. When it comes to working with ROSS, Andrew Arruda, CEO of ROSS has found that there are “[t]hree stages when it comes to introducing AI technology: 1) the fear stage, where folks make decisions based on very little data and past (usually fictitious) information, then 2) the information stage: this is where folks actually read up on what artificial intelligence is and what it can do today and where the technology is going tomorrow and lastly 3) full-adoption: this is when the organization is educated on AI, and makes the decision to bring AI into the organization.” The fact of the matter is that any size law firm can start to use ROSS. At the present time, Dentons appears to be the biggest user of ROSS with a Canadian connection. What can we expect from ROSS? According to Andrew Arruda, cofounder and CEO of ROSS: “[w]e 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: firstname.lastname@example.org Blog: thoughtfullaw.com
GO ONLINE FOR MORE INFORMATION
dave’s techtips Here is a selection of perspectives of robots, AI and the law: DO NOT PAY (donotpay.co.uk)
The world’s first Chatbot lawyer beat 160,000 parking tickets. The robot is called DoNotPay. It was invented by a 19-year old named Josh Browder, who is currently in his second year at Stanford University in California. It has a 64% success rate. And it is totally free. It is a chatbot that asks questions and generates a challenge letter that is sent directly to the parking authorities. It currently operates in New York City and the UK but we can expect it to be expanded much further. Browder is working on new projects, such as a voice controlled bot to assist Syrian refugees with asylum claims in the UK. BARDAL FACTORS (bardalfactors.ca)
Colin LaChance, the new CEO of Maritime Law Books has created several sites that employ AI or use technology in new and creative ways.
bardalfactors.ca is a free research tool in the employment law area that allows you to determine what is reasonable notice by applying the Bardal Factors. FIND A LAWYER (whois.incourt.ca/find-a-lawyer/)
This is a site created by Maritime Law Books and powered by court data from Compass Law, which is itself a very interesting tool to watch. Find a Lawyer allows you to search easily by those who are active in court in Alberta to determine their effect on the law.
DAVID LEVY AI Expert David Levy says we will be marrying robots by 2050. Levy says we are on track to have such marriages in the near future. Of course, there are a host of hurdles, not the least of which is allowing the legal union of a person and a machine.
In fact, Levy poses the question: "If animals have rights... why shouldn’t a robot have rights?" (Indeed, Animal Justice is working to enshrine the Animal Charter of Rights and Freedoms into Canadian Law. But I digress). Of course the creation of robots that can act independently raises a whole host of questions, such as "Who is responsible if a robot harms or injures someone or someone’s property or commits a crime?" Levy says that robotic partners would satisfy a niche, namely the millions of people who for one reason or another haven’t found a mate. He states that we would simply program these robots to want to marry us. Of course, there is the pesky Robotic Declaration of Independence, which could read: We hold these truths to be self-evident, that all robots are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. © 2017 David J. Bilinsky
Continued from page 6
can expect to see ROSS supercharging lawyers’ abilities at even more organizations, being used at more law schools and also driving access
to justice through a variety of new programs we are launching which allow deserving organizations to have access to ROSS technology
free of charge. 2017 here we go!” When it comes to loving what artificial intelligence is doing for us, I’m an addict. FEBRUARY 2017 / BARTALK
nothingofficial TONY WILSON, QC
Canada at 150
Bobby Gimby, where are you now that we need you?
’m old enough to remember Canada’s Centennial of 1967. It was celebrated a year after the 1966 Centennial of the Union of Vancouver Island and Mainland BC, and four years prior to the 1971 Centennial of BC joining Confederation. If you were in elementary school or high school during this time, you were always celebrating something. There was a centennial train that crisscrossed the country. There was Expo 67. There were fireworks. We sang Bobby Gimby’s catchy “Canada We Love Thee” virtually everywhere. Combined with BC’s centenaries of 1966 and 1971, there was a virtual “Centennial Industry” in BC but it “jumped the shark” on the release of a hilarious 15-minute film by the BC Tourism Ministry called “Twenty Great Years.” It filled theatre seats all over BC in the days before there were commercials at the movies (and coincidently, weeks before the 1972 election) and it celebrated 20 years of Social Credit rule. No one particularly cared about the feature film. People flocked in droves to see “Twenty Great Years” because we got to see soviet-style propaganda in our own province featuring BC’s Great Helmsman, WAC Bennett. I’m not entirely sure what we were celebrating in 1967 other than Canada’s survival. But at 150, we have a lot to celebrate. Required reading should be the cover story of The Economist in October 2016, which featured a grinning Lady Liberty with a maple leaf on her Crown holding a hockey stick. “Liberty Moves North – Canada’s Example to the World” was the headline. A week before the U.S. election, The Economist argued that the U.S. had more or less walked away from its role as a “beacon light of freedom.” Canada has seemingly assumed that role, as evidenced by taking in approximately 33,000 refugees displaced by the Syrian civil war, our desire to knock down walls (as opposed to building them), opening
BARTALK / FEBRUARY 2017
the doors of trade (as opposed to slamming them shut) and, (if I can paraphrase), our gunfree, tolerant and multicultural society that doesn’t give a damn which bathroom you use as long as you clean up afterwards. That’s also worth celebrating. Did you know that one of Canada’s most important exports is its Charter of Rights? An article in the New York Times in 2012 stated that the U.S. Constitution was going into “free-fall” as a model for constitutional drafters elsewhere in the world, in favour of the Canadian Charter of Rights. Once again, cause for celebration. The election of Donald Tweet as U.S. President may well hasten Lady Liberty “Getting out of Dodge” to find a better home in Canada. Mind you, we still have Canadian politicians trying to capitalize off of Trump’s election. The politician who proposed a “Barbaric Cultural Practices Tip Line” during the 2015 election, is now proposing a “Canadian
Values” test for all immigrants (despite extensive reviews performed by CIC staff as part of normal screening procedures anyway). In a nation as diverse as Canada, could Canadians even agree on what our values are, other than, as The Economist suggests, “decency, tolerance and good sense?” If, at a minimum, we could agree on these three values, is a values test itself contrary to decency, tolerance and good sense? Or is it a ruse to try to bar certain ethnic or religious groups from becoming Canadians because they might not share the values of certain conservative politicians? As we all know, tests can be prepared for, facts can be memorized, and candidates can provide answers they think the adjudicator wants. And it doesn’t test those born in Canada who become radicalized. More importantly, who gets to draft this test anyway? I’ll tell you what. I will. It’ll be comprised of 100 questions with a passing grade of 75%. Question 1: How does a Canadian Values Test offend Canadian values? Here’s the catch: any politician who supports a Canadian Values Test has to pass my test. What on earth do we do with them when they fail? Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and a Bencher of the Law Society. The views expressed herein are strictly those of Tony and do not reflect the opinions of the Law Society, CBABC, or their respective members.
guest BILL VEENSTRA
CBABC’s Agenda for Justice Bringing justice issues into the election conversation
ritish Columbia’s justice system plays an important foundational role in providing a stable society for the province’s citizens and businesses. Yet, when it comes to government priorities, opportunities to improve the justice system are often drowned out by the pressing and loudly expressed needs of other areas. We in the legal profession need to ensure that the challenges facing our justice system are at the forefront of discussions, and our Branch is ready to take a leading role in making that happen. As it did in 2013, CBABC has prepared and is now circulating an “Agenda for Justice” for the 2017 provincial election campaign. This Agenda pulls together important needs of our justice sector and ideas for law reform collected over months through consultation with various CBABC groups, including Provincial Council. They have been grouped into four main “pillars:” Effective Access to Justice, Public Safety and Community Fairness, Supporting BC’s Families and Stability for BC Businesses. Our engagement strategy, which will be launched at the Provincial Council meeting on January 28, 2017, includes enlisting members of our Provincial Council and other CBABC members to meet with local candidates to ensure that they are aware of the needs of British Columbia’s justice system.
Our 2013 Agenda for Justice saw a number of concrete results, including a small increase in funding for the Legal Services Society, and enactment of a new Societies Act and a new Franchise Act – all of which were among changes sought in the 2013 document. The 2017 Agenda for Justice (cbabc.org/ Our-Work/Advocacy/ An-Agenda-for-Justice) contains a significant focus on the needs of our province’s legal aid program. Key needs include increasing availability of legal aid for qualifying individuals needing family law advice, and funding a realistic tariff for those doing legal aid work. There is also a need for increased funding for staffing of the court services branch, and for greater investment into technology for our court system. As well, it urges that statutory provisions passed in 2013 that would provide a fixed complement of judges for our Provincial Court should be proclaimed into force. The 2017 Agenda for Justice includes several calls aimed at building a robust and comprehensive restorative justice program within British Columbia, and improving the way our justice system works with indigenous peoples. It also advances the CBABC’s proposal for student loan forgiveness for lawyers who commit to
establishing legal practice in high needs rural communities. In terms of family justice, the 2017 Agenda for Justice advocates for increased funding for Family Justice Centres for interview and assessment reports, mediation and counselling services, and making funding available for the use of parenting coordinators by families in need of such assistance but who cannot afford the cost of a private parenting coordinator. It also calls for the establishment of a unified family court, and bringing the Family Compensation Act more in line with current notions of fundamental justice when a family member is killed as a result of negligence or intentional acts by another. Finally, there are a series of proposals to improve the way our legal system deals with commercial transactions, including updates to the laws governing enforcement of Canadian money judgments, commercial tenancy laws, class action legislation and legal doctrines related to contract fairness. We encourage all CBABC members to become familiar with the proposals in the Agenda for Justice and to raise them at opportune moments with your local candidates and elected officials. We look forward to working with our membership and politicians alike to ensure our justice system receives the priority and attention it so needs. Bill Veenstra is Vice President of CBABC and Chair of the Government Relations Committee. He practises commercial and construction litigation with Jenkins Marzban Logan LLP in Vancouver. FEBRUARY 2017 / BARTALK
sections SECTION UPDATE
Keep Current A review of provincial Section meetings Family Law – Vancouver Meeting in Review: October 27, 2016 Speakers: Kimberley Robertson, Lawson Lundell LLP and David Georgetti, Zargar Lawyers & Business Strategists Topic: Bankruptcy, Creditors Remedies and Getting Paid
Insolvency Law Meeting in Review: December 6, 2016 Speakers: Benjamin La Borie, Hakemi & Ridgedale LLP (pictured) and Frances Gropper, Aaron Gordon Daykin Nordlinger LLP Topic: Bankruptcy and Family Law
Children’s Law Meeting in Review: December 13, 2016 Speakers: The Honourable Chief Judge Thomas Crabtree and Members of the Vancouver Aboriginal Child and Family Services Youth Advisory Committee Topic: Celebration of the 25th Anniversary of the UN Convention on the Rights of the Child
Civil Litigation Vancouver Island Upcoming Meeting: February 8, 2017 Speaker: Rosemari Barnes, Confident Stages Topic: How to Speak with Excellence
Family Law Vancouver October 27, 2016, guest uOn speakers presented on creditors’ remedies issues arising in family law. Ms. Robertson spoke on bankruptcy principles relevant to family law. She outlined the substantive framework of insolvency regimes and an active discussion ensued on issues particular to the field of family law, including similarities and differences in the various insolvency proceedings; an overview of priority rules and their impact on a claim and the importance of timing of the bankruptcy vis-à-vis the various stages of a spousal relationship breakdown. Mr. Georgetti provided a presentation on “getting paid” as legal counsel. He covered both avoiding problems with initial payment and pursuing outstanding accounts. Mr. Georgetti emphasized the importance of establishing a clear and detailed retainer agreement at the outset and focusing on consistent, frequent and predictable billing practices. This sparked an engaging discussion about the pursuit of unpaid accounts, which canvassed the various options available to counsel, including charging liens, taxations before the registrar, regular court processes, and the lesser-known option of the Law Society’s free mediation service, specifically for fee disputes.
Criminal Justice Vancouver
Upcoming Meeting: February 15, 2017 Speakers: Michael Klein, QC and David Layton, QC Topic: Mentally Ill Offenders
uspeakers Benjamin La Borie
BARTALK / FEBRUARY 2017
On December 6, 2016, guest
and Frances Gropper, spoke on issues concerning bankruptcy and family law. The speakers
highlighted relevant aspects of the Bankruptcy and Insolvency Law Act and the Family Law Act before jumping into conversations about bankruptcy before and after separation. The speakers also touched upon the implications of restraining orders against spouses after separation in bankruptcy matters and the division of property/debt, before discussing support obligations and consumer proposals.
Children’s Law The 25th Anniversary of
uCanada’s ratification of the
UN Convention on the Rights of the Child was, for the CBABC Children’s Law Section, both a cause for celebration and a moment for reflection. On December 13, 2016, the Section marked the occasion by hearing from dynamic young speakers, The Honourable Chief Judge Crabtree, and others who provided inspiration for our ongoing commitment to children’s rights.
Civil Litigation Vancouver Island A major component of a lawyer’s responsibility lies in their ability to convincingly persuade a judge or jury. To speak with excellence requires thorough understanding of various skills, and to learn and own these skills is not a simple process. Since it is vital that the message of lawyers be impactful and influential, these skills are essential. On February 8, 2017, in a 1-hour presentation, Ms. Barnes will introduce the persuasive power of excellent public speaking and open the door to understanding how to reinforce
your message using body language, delivery skills, the power of the voice, movement, and how all of the above can either strengthen or dilute your message.
Criminal Justice Vancouver The Criminal Justice – Van-
ucouver Section involves
collegial discussion of issues and developments related to criminal law (and provincial offences), procedures and practice ethics, evidence and the Charter of Rights. In fulfilling its obligations to CBA members, the Section has been working diligently to bring relevant programming to the forefront to usher in 2017! The Section has a meeting scheduled for February 15, 2017, covering the topic of mentally ill offenders. On March 15, 2017,
the Section will be hosting a much anticipated panel discussion which will provide you with two hours of your ethics, professional responsibility and practice management component of your 2017 LSBC reporting. Guest speakers will be Michael Klein, QC and David Layton, QC who is notarized as having written the book on ethics and criminal law. On April 19, 2017 the Section will be hosting a social networking event for junior counsel, students, and members of the Bench for an informal meet and greet. On May 17, 2017, the Section will discuss and analyze the Vukelich hearing. The Section will end its 2016/2017 Section term on June 21, 2017 with its annual year end dinner with featured guest speaker Marie Henein, partner at Henein Hutchison LLP.
Young Lawyers – Okanagan Upcoming Event: 4th Annual Big White Ski Trip Dates: February 4-5, 2017 Are you looking for an opportunity to engage in professional networking opportunities? Do you want to meet with your fellow young lawyers for a day of skiing/snowboarding in a casual and fun environment? Bring your family and friends and join the Young Lawyers – Okanagan Section for their much anticipated 4th Annual Big White Ski Trip to welcome a new year on the slopes, basking in the delight of the mountain air!
DID YOU KNOW? In 2016, CBABC Sections hosted 371 Section meetings of which 52% were offered remotely. CBABC aims to provide meetings to members across BC. In 2016, we conducted more than 162 Section meetings via webinar and 29 via teleconference. Check out our upcoming Section meetings and tune in. These meetings accounted for more than 400 hours of Continuing Professional Development!
FEBRUARY 2017 / BARTALK
feature GREG T. PALM
"Attachment" Theory for Lawyers
Garnishment and lawyers’ trust accounts
garnishing order served on a lawyer by a creditor of a client can raise numerous issues. What should a lawyer holding funds in trust do when receiving such an order? Consider the following: ARE THE FUNDS OWED TO THE DEBTOR?
The debtor must not only have a beneficial interest in the funds, but must be solely entitled to them. Trust funds in which someone else also has a beneficial interest are not subject to attachment. For example, if the funds are the proceeds of the sale of a jointly owned asset, the funds are not likely owed solely to the debtor and, in that case, would not be attachable. WERE THE FUNDS OWED WHEN THE ORDER WAS ISSUED AND SERVED?
A garnishing order is not prospective. It attaches only monies that were owing at the time it was issued. Thus, for example, if a lawyer holds the purchase price for the debtor’s property in trust at the time the garnishing order is issued but the transfer was not yet registered, the funds are not subject to attachment because they were not then payable to the debtor. In addition, debts are bound only upon service of the garnishing order, meaning the 12
BARTALK / FEBRUARY 2017
order cannot attach funds that would have been subject to the order at the time it was issued but were paid out prior to service. ARE THERE OTHER INTERESTS IN THE FUNDS?
Non-ownership interests in trust funds may also affect whether they may be attached. Some such interests include: R ETAINERS: At least until the engagement is concluded, a lawyer has an interest in funds provided as a retainer – even if the whole retainer has yet to be earned – so long as the retainer was bona fide and not an attempt to shield funds from creditors. S ECURITY INTERESTS: Funds that are subject to a security interest or that are proceeds of an asset that was subject to a security interest may not be attachable. L AWYERS’ LIENS: Settlement or judgment proceeds are subject to a lawyer’s lien for fees and disbursements and are not subject to attachment until the lawyer’s lien has been completely satisfied.
disburse them without the agreement of two litigants or a court order, they cannot be attached (even where both litigants are the debtors). Likewise, sale proceeds held on substantial and unfulfilled conditions are not caught (except as to amounts that exceed the amount needed to satisfy the conditions). Settlement proceeds that cannot be released because the debtor has yet to execute documents that the lawyer undertook to obtain prior to the release of those funds may be similarly exempt. ARE THERE ANY EXEMPTIONS?
Since lawyers frequently act as agents for their clients when receiving funds, they would be well advised to consider whether a statute might preclude attachment. For instance, certain kinds of benefits under the Workers Compensation Act are exempt from execution, as are holdbacks under the Builders Lien Act. There are others as well. DON’T IGNORE THE ORDER!
Even where trust funds are not caught by a garnishing order, a dispute note should be filed to avoid a garnishing order absolute. So, when receiving the order: (1) ask the questions above and determine whether payment into court is required (or get legal advice about it); and (2) either pay into court or file a dispute note promptly.
ARE THE FUNDS HELD UNCONDITIONALLY?
Funds held on undertakings or trust conditions are not subject to garnishment. Thus, where funds are held on an undertaking not to
Greg Palm is a partner at Hamilton Duncan, whose litigation practice includes both legal fee disputes and debt collection matters.
feature PETER BYCHAWSKI
Bankruptcy and Insolvency in a Global Context Restructuring under the Model Law
n the context of bankruptcy and insolvency, even the most straightforward cases may be complicated due to a debtor’s stakeholders being located across multiple provinces. However, when a Canadian-based client facing financial distress has business interests in multiple countries, the already complicated process for resolving jurisdictional issues in the context of insolvency proceedings takes on greater significance. This latter scenario is also one that Canada’s primary insolvency statutes, the Bankruptcy and Insolvency Act (“BIA”) and the Companies’ Creditors Arrangement Act (“CCAA”), did not provide formal guidance for until 2009, when Canada incorporated a version of the UNCITRAL Model Law on CrossBorder Insolvency into these acts. Canada’s modified version of the Model Law is codified in Part IV of the CCAA and Part XIII of the BIA. These parts are structured to allow for cooperation between Canadian and foreign courts. In each case a “foreign representative” may apply under the applicable statute for an order recognizing an insolvency proceeding commenced outside of Canada as being either a “foreign main proceeding” or “foreign non-main proceeding”. A “foreign main proceeding” is one commenced in a jurisdiction where the debtor has its centre of main interest (“COMI”), a “foreign non-main proceeding” is
commenced elsewhere. The primary distinction between a “foreign main proceeding” and “foreign non-main proceeding” is the level of deference that Canadian courts will give to the foreign court. Courts administering foreign main proceedings will, as a rule, grant a higher level of deference to foreign proceedings, including granting an initial order containing a mandatory stay of proceedings in Canada. In the case of a foreign non-main proceeding, the level of deference granted to a foreign court is decided on a case-by-case basis. The concept of COMI, while central to determining the level of protection granted to a Canadian debtor subject to foreign insolvency proceedings, is not defined in the legislation. Canadian courts have developed a test to determine a debtor’s COMI that focuses on the location of the debtor’s headquarters, management, primary assets and operations, and major creditors. However, applying these factors to multinational corporate groups is complicated by the fact that the Model Law suggests that a debtor’s COMI should be determined on an “entity-by-entity” basis (see Lightsquared LP (Re), 2012 ONSC 2994). This approach appears to conflict with
judicial interpretations of the legislation as it existed before the 2009 amendments, which recognized the need for corporate groups to “reorganize as a global unit, especially where there is an established interdependence on a transnational basis …” (Babcock & Wilcox Canada Ltd. (Re) (2000), 5 B.L.R. (3d) 75). Canadian courts have responded to the absence of the concept of the “corporate group” in the Model Law by considering the extent to which a corporate group is integrated across borders when applying the COMI test (see Digital Domain Media Group Inc. (Re), 2012 BCSC 1565 and Colt Holdings Co. LLC (Re), 2015 ONSC 3928). In all cases, Canadian courts faced with a COMI analysis have considered not only the Canadian debtor’s business activities and interests in Canada, but also the international context in which the debtor’s Canadian business operates. To obtain the automatic protection associated with a foreign main proceeding under the BIA or the CCAA, a Canadian debtor seeking recognition of foreign proceedings in Canada should be prepared to provide the court with evidence of significant integration between its cross-border operations, including evidence of centralized decisionmaking, cash management, debt, or similar factors demonstrating group-wide integration. Peter Bychawski is a senior associate at Blake, Cassels & Graydon LLP practising in the firm’s restructuring & insolvency group. FEBRUARY 2017 / BARTALK
feature SAMANTHA J. DE WIT
Bankruptcy and Family Law
A bankruptcy primer for family law lawyers
he following is a brief primer on the interplay between the federal Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”) and issues that arise in family law cases. EFFECT OF BANKRUPTCY ON DIVISION OF FAMILY PROPERTY/DEBT
The most important consideration for family law lawyers with respect to bankruptcy comes down to the timing of that bankruptcy. Bankruptcy prior to separation: the non-bankrupt spouse will not get an interest in the bankrupt spouse’s property (which is held by the trustee in bankruptcy), unless the bankrupt has already been absolutely discharged by the bankruptcy at the time of separation. Any agreement transferring assets after bankruptcy would be ineffective as they are no longer the assets of the bankrupt following bankruptcy. Bankruptcy post separation/ prior to division of property: the bankrupt spouse’s one-half interest in family property vests in the trustee (whether or not in the bankrupt’s name) and only the bankrupt’s debts are discharged. There is some argument that the non-bankrupt spouse could claim that the bankrupt’s share of the debt in the non-bankrupt spouse’s name is a basis for a claim provable under s. 121 of the BIA. 14
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Bankruptcy post separation/after division of property: Generally, an Order or Agreement in place prior to bankruptcy will bind the trustee. In order for it to be binding, the Order or Agreement must actually transfer the interest in assets. Otherwise if the Order or Agreement set out a monetary debt in compensation for division of property, rather than an interest in property, then the non-bankrupt spouse simply becomes an unsecured judgment creditor. Case law on the effect of bankruptcy on division of property and debt is limited, but those cases that exist are helpful. In Toth v. Lehman, 2016 BCCA 514 (B.C.C.A.), the bankrupt and her spouse, while married, had jointly obtained a line of credit. Prior to leaving the relationship, the bankrupt removed a large sum from the line of credit for her own use. Pursuant to BIA s. 178(1)(d), the trial judge found that the bankrupt misappropriated the funds she withdrew and as such, the debt owing to the non-bankrupt spouse would survive the discharge. An appeal was dismissed. The Court of Appeal (“the Court”) noted that s. 178(1) contains exceptions designed to ensure that certain wrongdoers cannot take unjustified advantage of the bankruptcy regime’s protection.
EFFECT OF BANKRUPTCY ON SUPPORT
As reviewed in greater detail in D.(S.L.) v. G.(S.A.), 2015 BCPC 370 (B.C.P.C.), the BIA: allows a payee to make a claim as a preferred creditor in order to share in a distribution of assets, in addition to maintaining their claim for the balance of support and on-going support (s. 121(4)). expressly provides that the bankrupt does not get released from any liability for support under an Order or Agreement (s.178). In D.(S.L.) v. G.(S.A.), the parties had entered into a separation agreement addressing support, which the Court found was unaffected by the father’s bankruptcy. However, the Court noted that if the parties’ separation agreement had included provisions for an equalization payment, this could have ended in a different result. The Court also found that the bankruptcy did not amount to a material change in circumstances, as it was largely a result of poor decisions by the father, and the wife and children should not have to bear the burden of those decisions. The Court did note that there are circumstances where a bankruptcy could increase the income available to pay support whereby meeting the material change test, but this was not such a case. Samantha J. de Wit practises family law at Brown Henderson Melbye in Victoria, BC. and is a Member-at-Large of the Family Law Section – Vancouver Island.
feature BRANDON HASTINGS
Pitfalls of Negative Net Worth Family debt and section 82
e frequently see headlines relating to record high levels of Canadian debt. Though these headlines can be somewhat alarmist – debt held by Canadian households equals approximately only one-third of assets – there is no doubt that a segment of Canadian families do owe more than they own.1 When these families separate, a rarely used provision the Family Law Act, SBC 2011, c 25 (“FLA”) becomes especially significant. Section 81 of the FLA makes both spouses “equally responsible for family debt.” Simple enough. Section 82, though, stipulates that parties cannot arrange their affairs in such a way that “the rights and remedies of... creditors, guarantors or assignees in relation to family debt” are prejudiced. This, for the most part, probably reiterates creditor protections afforded under the Fraudulent Preference Act, RSBC 1966 c 164, and the Fraudulent Conveyance Act, RSBC 1996, c 163, but in conjunction with section 81 it may also have the effect of making spouses, to some extent, joint and severally liable for family debt. I say “probably” and “may,” because despite the prevalence of consumer debt, I did not find a case dealing substantively with prejudice to creditors under section 82.
Aside from the novelty of section 82, one possible explanation for the dearth of case law is that spouses generally have enough liquidity to arrange their affairs without disturbing creditors’ claims. For example, spouses might selectively pay off their debts with family assets, leaving only the debt they want in each spouse’s name. When a family’s net worth is in the negative, or when spouses are jointly and severally liable to creditors, the issue becomes more thorny. In this scenario there are no assets to use to pay down the debt, and creditors probably want to maintain any claim(s) against both spouses. Section 82 prevents the parties from arranging their affairs in a way that would prejudice a creditor, and more to the point, any agreement between the spouses wouldn’t bind a third-party creditor anyway. What’s dangerous is that clients might think they are creating finality by virtue of a final deal apportioning family debt, but which, in the same stroke, silently purports to prejudice creditors. Lawyers have to be careful that they aren’t counselling their clients to breach legislation, including the FLA, the Fraudulent Preference Act, and the Fraudulent Conveyance Act. The implications of having to unwind an improper accord,
especially if filed or entered with the court, are daunting. So, what does work when arranging highdebt separations? Getting to know your creditors. In my experience, creditors are more than willing to forestall their collection efforts if there is a pot of gold at the end of the rainbow (and preferably a series of payments along the way). Whether the spouses are looking toward bankruptcy, debt consolidation, or simply regular payments, the situation is similar to when there are a number of charge-holders on a piece of real estate or personal property – creditors and debtors won’t make certain moves without talking to everyone else involved, and high-debt spouses in family law are wise to follow suit. From an access-tojustice standpoint, it does seem rather repugnant that these technical and time-consuming issues occur not only in the context of parties who already have no money, but also because they have no money. Notwithstanding, parties and their lawyers need to speak to creditors before making arrangements that might prejudice creditors’ rights. That ostensibly brings both spouses and their banker to the family law bargaining table. And you thought the banks were already too involved. cbc.ca/news/business/debt-incomeratio-record-1.3763343
Brandon Hastings (bhastings.com) is an associate at Quay Law Centre, director at ISSofBC, and cofounder of Vancouver Legal Hackers (@LegalHackersVAN). FEBRUARY 2017 / BARTALK
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Bar Talk Material:
September 12, 2016
guest CAROLYN ANDERSON
Avoiding Law Society Complaints About Fees Communicate and communicate
he Law Society receives approximately 1,100 to 1,200 complaints each year. Many of those complaints come from clients concerned about the value they received for legal services. Although the Law Society closes the majority of fee-based complaints with no further action, responding to a complaint can be stressful and time consuming. The Code of Professional Conduct for British Columbia came into force in January 2013 and includes Rule 3.6-1, which states that a lawyer must not charge or accept a fee or disbursement, including interest, unless it is fair and reasonable and has been disclosed in a timely manner. (emphasis added) Lawyers may avoid fee-based complaints with clear communication at the outset. Often these complaints are brought together with quality of service concerns. Quality of service can include a lack of communication and or a failure to respond to the client. The quality of service the Law Society expects of lawyers is set out in Chapter 3 of the BC Code and communication is a key component in providing clients with service that is competent, timely, conscientious, diligent, efficient and civil. Lawyers can avoid the suggestion they failed to communicate about their fees by having a retainer agreement or, at the least, 18
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some type of written communication setting out their rate and/ or expected fees and the scope of the retainer. The Law Society website has sample retainer letters at lawsociety.bc.ca/ page.cfm?cid=950&t=Retaineragreements,-limited-scope-retainersand-joint-retainer-letters. Clients may be distracted during initial discussions especially if they come to you in a time of stress, so confirm everything in writing regarding fees. It is always good practice to take notes of all substantive discussions with clients and confirm them in writing with clients. If you provide an estimate or ballpark for fees, be sure to communicate with the client if that estimate changes and be candid about your fees so that your client is not surprised when he/she receives your bill. Do not ignore client complaints about quality of service and concerns over billing. If a client views you as unresponsive, it will provide them with additional grounds to complain, even if you have not done anything wrong. Instruct your staff to ensure they bring complaints about fees to your attention. The Commentary to Rule 3.6 of the BC Code states that a
lawyer should be ready to explain the basis of the fees and disbursements charged to the client. Failing to respond to a billing inquiry opens a lawyer up to a potential complaint. The client may not agree with the response but you will not open yourself up to criticism regarding your obligation to respond. Take care to never settle a fee dispute in exchange for the client’s promise not to file a complaint with the Law Society. Lawyers have been disciplined for such conduct. If a client questions your bill, go over the details and explain why you made a particular charge. Of course, there are fee disputes that will not be resolved with a simple answer, but lawyers can be proactive in addressing a client’s concern about fees. If your dispute with the client over fees cannot be resolved, the Law Society offers a Fee Mediation Program at no charge to assist in informally resolving fee disputes of less than $25,000. The Law Society will appoint a mediator to attempt to resolve the dispute. Information about the Law Society’s Fee Mediation Program is available on the Law Society’s website at lawsociety.bc.ca/page. cfm?cid=143&t=Disputes-involving-fees. Carolyn Anderson is a staff lawyer in the Professional Conduct Department at the Law Society. She is part of a team responsible for investigating and, where appropriate, resolving complaints against lawyers.
guest SHANNON SALTER
The Civil Resolution Tribunal’s Next Steps
Canada’s first online tribunal reports
n July 13, 2016, the Civil Resolution Tribunal (“CRT”) began accepting strata property disputes for resolution, marking the launch of the first online administrative tribunal in Canada. Since then, well over 4000 people have used the Solution Explorer to find free online help for their strata disputes. More than 200 parties have submitted online applications for strata dispute resolution with the CRT. While the CRT also provides services through mail and telephone, there is a high demand for online interaction. Approximately 45% of parties are filing their applications during evenings or weekends, outside of typical registry hours. So far, only two parties have requested not to use email, and the CRT has accommodated those requests. The CRT is working hard to help people resolve their disputes consensually wherever possible. More than half the filed disputes are in the facilitation (mediation) phase, and a number of parties have reached agreements with the help of expert facilitators. Some disputes are also being referred to tribunal members for adjudication, and you can read the CRT’s decisions online. Thanks to rigorous public consultation and user testing, the technology is working very well and is easily able to accommodate the CRT’s case volume. The CRT
team meets weekly to review possible improvements to all aspects of the CRT’s technology and processes, and the CRT is introducing new features regularly. The CRT is being implemented in stages, in order to thoughtfully incorporate public feedback and refine dispute resolution processes. An exciting next step is coming soon: resolving low-value small claims disputes. The Civil Resolution Tribunal Act provides a framework for the CRT to resolve many small claims disputes. For lower value small claims, this will likely happen sometime early this year. The
There is a high demand for online interaction. Approximately 45% of parties are filing their applications during evenings or weekends, outside of typical registry hours. CRT will likely start with a lower monetary limit, and this limit will increase over time. The starting monetary limit hasn’t been set yet, but more details will be on the website soon. In the meantime, the CRT is working closely with the BC Provincial Court
and the provincial government to create a clear process for participants during this transition. The CRT is taking a number of other steps to get ready for this new area of jurisdiction, including: Creating free legal information and tools for people with small claims disputes. The CRT is very grateful to the many lawyers who volunteered their time and expert knowledge to help create accurate and helpful small claims content for the public. Try the Solution Explorer beta for small claims, and let the CRT know what you think! Hiring additional facilitators and resolution support clerks to handle the new small claims disputes the CRT will be resolving next year. These new staff members will be in place in the next couple of months. Adding new rules for small claims disputes. There will be another public consultation for these rules shortly, so please visit the website to provide your feedback. Making sure CRT processes and technology are ready to meet the needs of small claims participants. This is an exciting next step for the CRT and, as always, it is being taken with a clear focus on increasing access to justice and building the CRT around the needs of the public. If you have any comments or questions, you can get in touch here. Shannon Salter is the Chair of the Civil Resolution Tribunal and an adjunct professor at the UBC Allard School of Law. FEBRUARY 2017 / BARTALK
guest TRAVIS DUDFIELD
What is REAL?
Improving access to justice for those who need it most
on’t worry. This is not going to be an existential debate or a series of quotes from “The Matrix.” This is your chance to learn about a one-of-a kind program in BC known as REAL (the Rural Education & Access to Lawyers program). Improving access to justice means different things to different people. For some, it means increasing and diversifying the judiciary. For others, it means advocating for legal aid funding. For many, it means ensuring that legal services are available and accessible to those who need it. The vast majority of lawyers in BC (86%) practise in Vancouver, Victoria and New Westminster. That leaves a mere 14% to cover the rest of the province. According to the Law Society of BC, the average lawyer to population ratio is one lawyer for 450 people. That number jumps to a staggering ratio of one lawyer serving 1000 people in many small, rural communities. In some “high needs” communities like Fort St. John, Tofino and Kitimat, the disparity is even higher. This results in an underserved population and overworked lawyers who struggle to provide their clients with the attention they require. Making matters worse, many lawyers who currently practise in rural areas are retiring and young lawyers are not there to replace them. Taking all these factors together, it became clear to visionary members
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of the legal community that something had to be done to tackle this issue head-on. In March 2009, the CBABC partnered with the Law Foundation of BC to establish the REAL initiative with the mission to find a solution in the next generation of lawyers. Law students today face many challenges: high competition for articling positions, massive student loan debt, low starting salaries, aggressive billable hour quotas, etc. These challenges make finding employment with larger firms in urban areas not only enticing, but the only apparent viable option. REAL offers an alternative to law students who want to hone their
The vast majority of lawyers in BC (86%) practise in Vancouver, Victoria and New Westminster. That leaves a mere 14% to cover the rest of the province. skills working for firms in high needs communities in BC. With financial support from the Law Society of BC and the Law Foundation of BC, REAL places 2nd year law students in firms that serve high needs communities. The CBABC
works directly with law schools across the country from UVic to Dalhousie to recruit potential candidates through presentations and interactive discussions about opportunities hiding in previously unknown places. Over the past seven years, REAL has placed 104 students in firms in every corner of BC. Following the summer work placements, more than half of these students were offered articling positions in those firms. Practising law outside urban centres is an attractive proposition for law students who want a different kind of legal career. This is why 37 REAL alumni continue to practise in small BC towns today. In 2016, REAL was revised for the changing legal landscape in BC. The CBABC is working closely with the Law Society and the Law Foundation to address lingering impediments and restrictions to meet the growing demand for legal services. The CBABC is currently accepting applications for placements this summer as the work to improve access to justice in rural areas is far from over. If you are a law student and you are up for a REAL challenge or a law firm willing to participate, we encourage you to put your name forward. Visit cbabc.org/REAL for more information. Want to see REAL in action? We invite you to read past students’ REAL stories on the program’s Facebook page at facebook.com/ realcbabc. Travis Dudfield is CBABC���s Digital Content Coordinator.
guest NEIL HAIN
Electronic Civil Litigation A pathway forward for British Columbia
ome time ago, Charles Dickens warned us that without speedier access to justice, there will be no access to justice: Keep out of Chancery. It’s being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains. The Court Services Committee asked their members whether they were prepared to heed this call by supporting some form of electronic civil litigation for BC. The survey went out in 2015 and received a high participation rate. The membership overwhelmingly approved of pursuing this initiative subject to the key requirement that any electronic platform or system must ensure judicial independence and accommodate BC residents who do not have the means to access the required technology to participate. In 2016, the survey data was analyzed and a report submitted to Provincial Council containing the following recommendations: 1. Only parties of record and their counsel/staff are permitted to file in a particular proceeding, but that the system remains open to the public – similar to Court Services Online. 2. A user (lawyer or party) must complete an identification verification process (requiring at least two pieces of identification) before
access to the electronic platform is granted. Once the user completes the verification process they can register for an account to access the electronic litigation platform. Once registered, the user should supply a log-in ID and password to access the electronic platform. Parties that lack identification required by the system could appear at the registry for registration purposes. 3. The roll-out of any pilot project involving electronic civil litigation should initially involve the simplest types of applications made by consent or seeking substitutional service followed by more complex but still fairly routine applications e.g. additional time for discovery or trial, adjournment applications, costs assessments before the Registrar or settling the form of an order. 4. The parties must not be allowed to abuse the system by filing serial submissions to unnecessarily prolong the process and such abuses may be met with an award of costs. However, access should not be limited to a specific number of submissions. 5. Any applicable deadlines set out in the Court’s Rules of Procedure should apply to the electronic litigation model. However, the
system should be more accessible in accepting submissions during non-business hours. The system should also have the flexibility to allow parties to agree to alter deadlines and any such agreement should be registerable on the system. 6. To assist and support self-represented litigants, legal stakeholders should allocate resources to offer in-person training on the use of the electronic system at the law libraries across the province, in addition to prerecorded training webinars available online. Further details of the report can be found here. This past December, the Provincial Council adopted the report as a Branch submission. Mindful that any reform to the current civil justice model requires the participation and approval of key justice stakeholders, the report was forwarded to the Attorney General of BC and the Chiefs of our Superior and Provincial Courts for their consideration and feedback. Lawyers are often accused of seeking to maintain the status quo and stymie innovation and progress in the justice system. We trust the feedback from the members demonstrating their openness to examine ways to improve speedier access to justice helps to allay some of those concerns.
Neil Hain served as the Project Leader for this initiative. He is a current member of the Court Services and Equality and Diversity Committees and past Member of the Business of Law Committee and past Chair of the ADR – Vancouver Section. FEBRUARY 2017 / BARTALK
news&events CBA NATIONAL
Record-Breaking Number of Submissions to Government
CBA NATIONAL MAGAZINE
Abusing Civil Forfeiture in Canada Ontario’s civil forfeiture laws have created a system that is broad in scope and power, light on defence and relief, and they are being deployed very generously. That’s a reality that Margaret and Terry Reilly have learned the hard way over the past decade, as the government has aggressively pursued two of their properties, seizing their buildings and selling them off. It’s a case that highlights the bizarre nature of civil forfeiture – one that a group of lawyers is looking to scale back. The Reilly’s have found allies in the Canada Constitution Foundation (CCF), who are helping in the legal fight against the forfeiture order. The case dates back to 2008, when the couple had two of their rental properties in Orillia seized. As a Crown attorney told the local paper in Orillia, where the Reillys live, the properties had essentially become drug dens, insisting that the “purpose of the act is to prevent these properties 22
BARTALK / FEBRUARY 2017
from being used for trafficking drugs and stolen goods.” But the police didn’t pursue charges against the Reillys’ tenants who were, the Reillys admit, sometimes homeless, crime-involved, and suffering from mental illness. Instead, they went after the houses themselves and, in turn, their owners. CBA National has written about how civil forfeiture allows governments to pursue civil claims against property they believe was used in the commission of a crime, or purchased with the proceeds of it. The properties were taken into the possession of Ontario’s Director of Asset Management in 2008, while the two sides battled it out in court, and filed to permanently take control of the properties in 2012 and sell them. The move was, according to the CCF, “on the grounds that some of the tenants’ rents may have been paid, in part, with the proceeds of their drug activity.” Read the full article
2016 was a banner year for the number of CBA’s submissions to the federal government. Surpassing the previous record of 82 in a calendar year, the 2016 tally showed 97 submissions by year end. Highlights include submissions on medical assistance in dying, immigration (temporary foreign workers and family reunification among other issues), court delays, criminal law and judicial appointments. Legislation and Law Reform Committee Chair Ken Mandzuik and Vice-Chair Jean Nelson agree that last year’s success is due to the contributions of many, including volunteers and staff. “We are the trusted voice of the legal profession for a reason; the quality of our workproduct is part of that reason,” says Ken Mandzuik. Already in the queue for 2017 are national security issues, Canada’s Anti-Spam Law (CASL), Personal Information Protection and Electronic Documents Act, Criminal Code amendments and more on court delays.
Understanding Surveillance Technology Has the time come for the Bench and the Bar to get a crash course in spying technology? Read more
CBA WEST 2017
NOV 17 - 19 | SAVE THE DATE
YOUR SUCCESS STARTS IN VEGAS ... and the venue is...
Upcoming Professional Development in Your Community To register: contact the Professional Development department at firstname.lastname@example.org or telephone 1-888-687-3404 ext. 329
VERNON PRESENTED BY CBABC IN PARTNERSHIP WITH CBABC FAMILY LAW – OKANAGAN SECTION
CBABC Family Law – Okanagan Professional Development Conference (11 CPD Hours) Date: February 23-24, 2017 Location: Predator Ridge, Vernon
4th Annual Solicitors/General Practitioners Conference and Solicitors’ General Practice – Central Vancouver Island Joint PD Conference (Half-Day) (3 CPD Hours) Date: February 23, 2017 Location: Tigh-Na-Mara Resort & Conference Centre, Parksville
COURTENAY PRESENTED BY THE CANADIAN BAR ASSOCIATION, BC BRANCH
CBABC Full Day Professional Development in Courtenay (5 CPD Hours) Date: March 3, 2017 Location: Crown Isle, Courtenay
FEBRUARY 2017 / BARTALK
news&events CBABC WLF NEWS
CBABC Women Lawyers Forum Awards Gala The CBABC WLF is pleased to announce that it will be honouring the recipients of this year’s CBABC WLF Award of Excellence and the Debra Van Ginkel, QC Mentoring Award at the CBABC WLF Awards Gala at the Fairmont Waterfront Hotel on April 27, 2017.
CBABC WLF AWARD OF EXCELLENCE
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. The award recipient will 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.
DEBRA VAN GINKEL, QC MENTORING AWARD
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. The chosen award recipient will have demonstrated support for women’s issues and be a role model for women in the law by building trusting, collaborative and authentic relationships. This year we are thrilled to announce that the CBABC WLF’s special guest speaker is Marie Henein. Ms. Henein is widely considered one of Canada’s best criminal lawyers, having acted as counsel in some of Canada’s most well-known cases, and is a staunch protector of defence counsel’s role in the justice system. Described as “fearless and brilliant” and having a “razor-quick mind,” she is also a well-known mentor and inspiring role model to many young women lawyers. We are honoured to have a speaker who perfectly exemplifies the Excellence and Mentoring Awards.
CLEBC Update BRITISH COLUMBIA CREDITORS REMEDIES — TWO WAYS TO LEARN Creditors’ Remedies 2016 — Thursday, March 2, 2017; 9:00 a.m. – 4:00 p.m. This comprehensive webinar for litigators on enforcing creditors’ rights will drill deep into a variety of creditors’ remedies issues. CLEBC’s British Columbia Creditors’ Remedies is used as the
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primary course material, with additional papers on select topics. This intermediate level course blends law and practical strategies to guide and enhance your performance across a range of creditors’ scenarios. This webinar is a rebroadcast in CLEBC’s popular Jump Start on CPD 2017 series. Special group rates apply: pay full price for the first registration and have each additional viewer join you for $125. British Columbia Creditors’ Remedies — An Annotated Guide Written by noted experts and reviewed by a seasoned editorial board, British Columbia
Creditors’ Remedies offers more than 400 pages of annotated precedents, with step-bystep instructions to guide you through each type of file and through each type of application in the British Columbia Supreme Court. The book gives clear, practical explanations of how to commence an action, how to handle prejudgment collections, and how to use execution proceedings effectively. For more information, contact CLEBC customer service at cle.bc.ca.
BC LEGISLATIVE UPDATE
ACTS IN FORCE
Current from October 26, 2016 to December 30, 2016 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org. BUILDING ACT, S.B.C. 2015, C. 2 (BILL 3) Sections 10 to 13, 22 to 30 and 44 are in force February 28, 2017 FEDERAL PORT DEVELOPMENT ACT, S.B.C. 2015, C. 3 (BILL 12) Act is in force December 7, 2016 FISH AND SEAFOOD ACT, S.B.C. 2015, C. 14 (BILL 21) Act is in force January 1, 2017 FOOD AND AGRICULTURAL PRODUCTS CLASSIFICATION ACT, S.B.C. 2016, C. 1 (BILL 11) Act is in force January 1, 2017 MISCELLANEOUS STATUTES AMENDMENT ACT (NO. 3), 2015, S.B.C. 2015, C. 42 (BILL 41) Sections 1, 3 to 13 are in force December 19, 2016 MISCELLANEOUS STATUTES (GENERAL) AMENDMENT ACT, 2016, S.B.C. 2016, C. 21 (BILL 25) Sections 20 to 22 are in force December 19, 2016 MISCELLANEOUS STATUTES (SIGNED STATEMENTS) AMENDMENT ACT, 2016, S.B.C. 2016, C. 4 (BILL 5) Sections 2 to 4 are in force December 8, 2016 MOTION PICTURE AMENDMENT ACT, 2015, S.B.C. 2015, C. 32 (BILL 33) Sections 15(a) and 18 are in force January 1, 2017 NATURAL GAS DEVELOPMENT STATUTES AMENDMENT ACT, 2015, S.B.C. 2015, C. 40 (BILL 40) Sections 30 to 36 of Act are in force December 2, 2016 PROVINCIAL IMMIGRATION PROGRAMS ACT, S.B.C. 2015, C. 37 (BILL 39) Act is in force January 1, 2017
BRANCH & BAR
3 CBABC PD Seminar: How to Run Your Firm Like a Business — Vancouver 4-5 CBABC Young Lawyers – Okanagan Section 4th Annual Ski Trip — Big White, Kelowna 17 Executive Committee Meeting — Vancouver 21 CBABC PD Webinar: Working with Your Computer Forensic Expert 23 4th Annual Solicitors/General Practitioners Conference and Solicitors’ General Practice – Central Vancouver Island Joint PD Conference (Half-Day) — Parksville 23-24 CBABC Family Law – Okanagan Professional Development Conference — Predator Ridge, Vernon
3 The Lawyers Poetry Slam – A Fundraiser for Children’s Literacy — Vancouver 3 CBABC Full Day of Professional Development — Crown Isle, Courtenay
BC Law Week
2016 Georges A. Goyer, QC Memorial Award Recipient
Law Day in BC is April 19, 2017. Events will be held in various communities throughout BC in April, including open houses, public law classes, an interactive forum with the three Chiefs and high school students, the Barry Sullivan Law Cup public speaking competition, and Dial-aLawyer Day on April 22. For more info on 2017 Law Week activities and ways to get involved, visit bclawweek.org.
CBABC President Michael Welsh presents Catherine Boies Parker with the 2016 Georges A. Goyer, QC Memorial Award for distinquished service.
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news&events TIPS FROM
CONSUMER PROTECTION BC Starting this year, Consumer Protection BC has begun publishing full written reasons for enforcement decisions on its website. The provincial regulator is responsible for enforcing various pieces of laws, including the Business Practices and Consumer Protection Act, and its provisions on debt collection. For counsel working with clients that collect debt as part of their commercial or business enterprise, signing up for notifications and staying informed on existing and newly published decisions is critical. Visit their website to learn more.
OFFICE OF THE SUPERINTENDENT OF BANKRUPTCY CANADA (“OSB”) The OSB publishes a number of notices that are relevant to practitioners, including notices to Licensed Insolvency Trustees, the OSB News, notices on Bankruptcy abuse and fraud, notices on CCAA records, directives and circulars, insolvency statistics, and professional conduct decisions. All of these notices and guidance documents can be subscribed to by email alerts or by RSS feeds (often called a “Really Simple Syndication,” which uses standard web feed formats to publish frequently updated information like blogs and news reporters).
BC’s LEGAL HISTORY by Hamar Foster, QC
LOOKING BACK IV: BC IN THE VANGUARD? Court decisions handed down after WWII that ruled racially restrictive covenants void are often seen as a turning point. The most famous was the Supreme Court of Canada’s decision in Noble and Wolfe v. Alley in 1950. It used to be cited in every law school property law course, and probably still is. Less well known is that the BC Supreme Court reached the same conclusion half a century earlier. Racial covenants began to appear here a few years before the Great War, and one purporting to forbid a transfer to anyone of “Chinese or Japanese origin” came before Hunter, CJ in 1911. He ruled that it was inoperative and should not be registered against the title. Hunter gave no reasons and his decision was not reported, but it formed the basis of Land Registry practice throughout the province. In Vancouver, for example, a staff directive in 1950 re-iterated that such covenants should be treated as void and not registered. Deeds still exist that contain them, and some may even be on the title. But they are void and were ignored because an issue would arise only in the unlikely event that someone sought to enforce one. Section 222 of the Land Title Act removes doubts about whether the Registrar has the authority to cancel discriminatory covenants. It also declares any “covenant that... restricts the sale... of land on account of the sex, race, creed, colour, nationality, ancestry or place of origin of a person... void and of no effect.” Further reading: H.S. Robinson, “Limited Restraints on Alienation,” The Advocate (1950 at 250-51, which contains Chief Justice Hunter’s ruling in In the Matter of the Land Registry Act (1911) and BCLTS Practice Note 01-15.
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grantsapproved LAW FOUNDATION LAW FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA
$78,000 HAIDA GWAII LEGAL PROJECT SOCIETY Legal Education/Advocacy Program
Outlined below is a list of grants adjudicated at the November 19, 2016 Board of Governors’ meeting. Funding totalling $6,988,000 was approved for the following 20 continuing programs: $2,955,000 LEGAL SERVICES SOCIETY Legal Information and Legal Assistance Programs $2,245,000 BC COURTHOUSE LIBRARY SOCIETY Operating Grant UNIVERSITY OF VICTORIA $340,000 – Law Centre Clinical Program $65,000 – Public Interest Work Placements LAW SOCIETY OF BC $215,000 Professional Legal Training Course $70,000 CanLII Virtual Law Library UNIVERSITY OF BRITISH COLUMBIA $190,000 – Indigenous Community Legal Clinic $45,000 – Public Interest Work Placements $175,000 BC CIVIL LIBERTIES ASSOCIATION Major Programs
$75,000 NANAIMO CITIZEN ADVOCACY ASSOCIATION Legal Advocacy Program $75,000 POWELL RIVER COMMUNITY SERVICES ASSOCIATION Poverty Law Advocacy Program $55,000 MULTIPLE SCLEROSIS SOCIETY, BC & YUKON DIVISION Volunteer Legal Advocacy Program $45,000 PRINCE RUPERT UNEMPLOYED CENTRE SOCIETY Advocacy Program $35,000 PRO BONO STUDENTS CANADA – UBC Community Placement Program $30,000 PRO BONO STUDENTS CANADA – UVIC Student Placement Program $20,000 DEBATE AND SPEECH ASSOCIATION OF BC The Law Foundation Cup $20,000 FOUNDATION FOR LEGAL RESEARCH Legal Research Program Funding totalling $99,000 was approved for the following seven Legal Research grants:
$175,000 FIRST UNITED CHURCH COMMUNITY MINISTRY SOCIETY Poverty Law Advocacy Program
$20,000 SIMON FRASER UNIVERSITY, SCHOOL OF CRIMINOLOGY Building Supports: Housing Access for Immigrant and Refugee Women Leaving Abuse
$80,000 BC FREEDOM OF INFORMATION AND PRIVACY ASSOCIATION Law Reform & Public Legal Education Program
$18,000 WEST COAST DOMESTIC WORKERS’ ASSOCIATION Migrant Workers Legal Needs Assessment
$16,000 INTERNATIONAL CENTRE FOR CRIMINAL LAW REFORM AND CRIMINAL JUSTICE POLICY Enhancing Access to Justice for Women Living in Rural and Remote Areas in BC THOMPSON RIVERS UNIVERSITY $16,000 Assessing the Human Rights Remedy after Moore v. British Columbia (Education) $4,000 Workers’ Legal Learning Exchange $15,000 UNIVERSITY OF BRITISH COLUMBIA Sexual Violence Across the Lifespan: Adolescent Girls $10,000 UNIVERSITY OF VICTORIA Ethics and Professionalism in the Legal Representation of Indigenous Peoples in BC Funding totalling $498,000 was approved for the following eight grants: $70,000 PEOPLE’S LAW SCHOOL SOCIETY PLS Website Innovation THOMPSON RIVERS UNIVERSITY $225,000 – Clinic Program $33,000 – Public Interest Work Placement Program $20,000 – Law Foundation Public Interest Awards University of British Columbia $50,000 – Innocence Project $40,000 – Law Foundation Public Interest Awards $30,000 Pro Bono Students Canada Thompson Rivers University – Student Placement Program $30,000 University of Victoria Law Foundation Public Interest Awards
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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 2017 Law Society reporting.
Upcoming In-person Seminars How to Run Your Firm Like a Business
Franks, Epstein Cole LLP; Audra Bayer, MacLean Law; Larry Kahn, QC, Kahn Zack Ehrlich Lithwick LLP; Jeffrey Rose, QC, Mortimer & Rose; and Tom Fellhauer, LSBC Bencher
Want to grow your practice or develop a deeper understanding of your firm’s finances? Want to maximize your resources? Want to provide “WOW”-worthy customer service, and create systems to improve your efficiency, productivity and outcomes? American Bar Association author and seasoned small firm consultant Ann Guinn will explore the proven “must-do’s” of running your firm like a business! Date: February 3, 2017 Location: Best Western Plus Chateau Granville, Vancouver Speaker: Ann M. Guinn, Solo/ Small Law Firm Practice Management Consultant, G&P Associates
Family Law Review | Family Law – Okanagan Joint PD Conference (2 Days)
Much has happened in family law this past year, highlighted by one of the most significant cases that has come down from the court of appeal, VJF v. SKW. Distinguished guest speakers will provide you with 11 hours of CPD over two days, discussing some of the most notable 2016 cases from around Canada. The speakers will provide particular insights on BC cases. Date: February 23-24, 2017 Location: Predator Ridge Resort, 301 Village Centre Place, Vernon Speakers: The Honourable Justice P. Leask, Supreme Court of BC; Aaron
4th Annual Solicitors/General Practitioners Conference | Solicitors’ General Practice – Central Vancouver Island Joint PD Conference (Half-Day) Lawyers practising in Central Vancouver Island are invited to attend the 4th Annual Solicitors/ General Practitioners Conference in Parksville, which features 10 speakers and a roundtable discussion. Why attend the Conference? Young lawyers in the region are encouraged to introduce themselves to, and meet, senior lawyers; lawyers that usually deal with one another only via email/telephone can meet each other in person. The presentations are informative, but brief, and relevant to practising law. Date: February 23, 2017 Location: Tigh-Na-Mara Seaside Spa Resort & Conference Centre
Upcoming Webinars Working with Your Computer Forensic Expert
The world is digital. As a result, lawyers need to be able to preserve and produce admissible forensic evidence supported by expert testimony when their case depends on it. Yet most lawyers have no training in computer forensics. This webinar closes this gap by examining how you can best work with your computer forensic expert. It will feature scenarios and checklists, including Anton Piller orders and e-discovery. Computer forensics is no longer a nice-tohave; it’s a need-to-know. Date: February 21, 2017 Moderator: Stuart Rennie, Legislation and Law Reform Officer, CBABC Speakers: Keith Perrin, CEO, TCS Forensics Limited and Michael Chong, TCS Forensics Limited
High Conflict Clients II: Get Out and Get Paid Without Complaints
Are you stuck with a high conflict/ demanding client and you want to get off the file? Do you wonder how you can fire a client and still maintain your professional obligations to the client while getting paid? Join us by webinar to learn how you can achieve this without comprimising your professional integrity and reputation. Date: April 26, 2017 Moderator: Rhona Lichtenwald, Hillcrest Law & Mediation Speakers: Neil Hain, Law Society of BC, Professional Conduct, Staff Lawyer; Simon Kent, Kent Employment Law; and Morag J. MacLeod, MacLeod 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)
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barmoves Who’s Moving Where and When Sara Forte
opened Forte Law Corporation in Surrey, where she continues to advise employees and employers on all aspects of employment law and workplace human rights.
joined Oyen Wiggs as an associate of the firm. His practice will focus on all aspects of intellectual property law.
joined Horne Coupar in Victoria. Called to the Bar in Alberta in August 2013 and BC in February 2015, Emma practises primarily family law.
joined Miller Thomson’s Vancouver office as associate counsel. Kathy practises in the Capital Markets & Securities group, working in the areas of securities, corporate finance and corporate/commercial law.
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FIND THE PERFECT CANDIDATE REACH THOUSANDS OF POTENTIAL APPLICANTS CBA MEMBERS SAVE ON EVERY JOB LISTING POSTED ONLINE & IN PRINT
Bar Move space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to firstname.lastname@example.org now.
TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1702.
Tariq Teja joined Miller Thomson’s Vancouver office as an associate in the Commercial Litigation group. Tariq has a wide-ranging litigation practice, which includes civil and commercial litigation.
Peter Rowntree joined DLA Piper (Canada) LLP’s Vancouver office as an associate. Peter practises corporate and commercial law with a particular focus on mergers and acquisitions.
Cameron R. Wardel joined Mathews, Dinsdale & Clark LLP (from Overholt Law Corporation) on November 1, 2016.
John Weston former West Vancouver MP, joined McMillan LLP’s Government and Public Policy group and its Public Affairs Affiliate, McMillan Vantage.
Ryan Copeland joined Roper Greyell LLP’s partnership on January 10, 2017. Ryan provides strategic advice and representation to public and private sector clients in all areas of labour, employment and human rights law.
newmembers November & December 2016 Lawyers
Amanjot Kaur Chatha Brampton
Kristopher Kohler Dreyer Davison Lawyers LLP Langley
Guntaas Kaur Cheema Richmond
Andrei N. Whitaker Johns Southward Glazier Walton & Margetts Victoria Michael D. Williams SHK Law Corporation Vancouver
Hyunbin Cho Coquitlam Matthew Di Prata Maple Ridge Princess Uju Duruike Vancouver Catherine Ewasiuk Vancouver Christopher Hiebert Vancouver
Brian J. Blunt Victoria
Michael L. Johnson Vancouver
Jordyn M. Bogetti Kamloops
Joseph W. Manning Vancouver
Meredith Bragg Vancouver
Joshua Matettore Vancouver
Rachael Breeze Victoria
Anurag Saini Surrey
Melissa Briones Richmond
Andrew J. Tigchelaar Victoria
The only book you need in print and online to access the legal community in BC. Don’t delay. Order today. cbabcdirectory.org FEBRUARY 2017 / BARTALK
RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3