BarTalk August 2019

FROM THE PRESIDENT

MARGARET A. MEREIGH

The Innovation Conversation

Are you participating?

Last fall, my first introduction to “innovation” during the early days of my presidency were Justice Hack 2018, Innovate BC’s AI Justice Challenge and Access to Justice BC’s (“A2JBC”) Leadership meeting. These events, the people and the ideas captured my attention. In this article, I would like to share with you CBABC’s efforts to inspire innovation in the profession these past 12 months.

We have the opportunity to consider access to justice through another lens – an innovation lens. This as a more optimistic and collaborative way to discuss access to justice.

Have you heard of A2JBC? A2JBC is a network of people and organizations connecting with each other to realize a common vision – access to family and civil justice for all British Columbians. Chief Justice Bauman is the chair. A2JBC follows a Triple Aim approach where access to justice goals are influenced by three elements:

1. improved population access, 2. improved user experience and 3. improved costs.

This approach has proven to be successful in the health sector. In June of 2019, the BC Attorney General and 50 justice sector organizations, including CBABC, formally endorsed the Triple Aim approach.

CBABC and our innovation partners want to bring lawyers into the innovation conversation. Shifting our perspective to a “user perspective” includes us, as users of the system, as well. We want lawyers to think about how to practice law differently, to understand how different regulations might help us do that, and to think about how

to meet the needs of many who currently cannot access legal help.

Recently, the federal government announced superclusters with regional concentration – digital technology in BC, protein industries in the Prairie provinces, advanced manufacturing in Ontario, AI powered supply chains in Quebec, and ocean supercluster in Atlantic Canada. Why is this important? There is now a concentration of technology companies in BC looking to solve problems. Why not legal problems?

practice law differently. They shared what they do and how they can help lawyers change their practice to work smarter, to improve the client experience and to provide legal services to more people.

Justice partners are considering a Law Lab. This is where legal problems are taken to an innovation lab where solutions are studied, data is collected, pilot projects are run, and solutions are presented. It would involve law and non-law partners (e.g. technology companies) and looking at how other professions or industries are using technology or other forms of innovation to deliver services better. This takes advantage of BC supercluster in digital technology and also private and federal funders. It also ensures that we, the profession, are involved in the innovation discussion.

In BC, we enjoy self-regulation as a profession and, therefore, we are responsible for providing legal services. England and other jurisdictions have lost self-regulation.

Last September, we heard from Washington State Bar executives about their limited license legal technicians – their equivalent of alternative legal service providers.

In February, we hosted members of the tech sector and lawyers who

In May, we partnered with other organizations to host Gillian Hadfield, University of Toronto law professor, economist and writer of Rules for a Flat World: Why Humans invented law and How to Reinvent it for a Complex Global Economy. Professor Hadfield approaches the access to justice problem through an economic lens. She suggests our Law Society regulations need to change to enable partnerships with non-lawyers.

In June, we heard from judges about innovation in the courts, specifically, Chief Justice Hinkson of the Supreme Court, Chief Judge Gillespie of the Provincial Court and Justice Willcock of the Court of Appeal. Of particular note, Justice Brown of the Supreme Court of Canada spoke about access to justice provided by courts as distinct from access to resolution provided by tribunals.

Disruption in law breeds challenges and opportunity. I encourage you to take on the challenges and to develop the opportunities. You are our forward thinkers. Most importantly, we as lawyers need to be at the forefront of changes to the justice system in BC.

Margaret A. Mereigh president@cbabc.org

Hastings

Inside This Issue

David Bilinsk y sums it up: “Law is... at a crossroads.” There is a crippling need for improvement in justice, coupled with concerns about ending up in a “Black Mirror” episode. Learn about A2JBC’s triple aim, AI use in BC justice, changing regulation of the profession, and resurgence of Indigenous justice. Contributors include The Honourable Robert Bauman, Deputy Attorney General Richard Fyfe, QC and Professor Gillian Hadfield.

— Brandon D. Hastings, BarTalk Chair, co-founder of Vancouver Legal Hackers and founder of The Justice Hack

News and Events

4 BCLMA

18 An End to the Captivity of Whales and Dolphins Keeping Humans in the Loop

19 2019 Georges A. Goyer, QC Memorial Award for Distinguished Service Calling All Lawyers: Mentor a Law Student Pitch Us Your Article Idea

Decolonizing Law

20 Women Lawyers and the “GOOD Guys” Later Never Comes

CLEBC Update

21 BC Legislative Update Branch & Bar Calendar 35th Annual Bench & Bar Dinner

We Need Digital Law for a Digital World

22 CBA Wellness

Bridging the Gap Between Law and Technology Tips from Courthouse Libraries BC

Also in This Issue

BARTALK EDITOR

Deborah Carfrae

EDITORIAL BOARD CHAIR

Brandon Hastings

EDITORIAL BOARD MEMBERS

George Hungerford

Eryn Jackson

Kevin Kitson

Kirsten McGhee

Lisa Picotte-Li

Craig Stewart

Crystal Tomusiak

Donna Turko, QC

Sean Vanderfluit

BARTALK SENIOR EDITOR

Carolyn Lefebvre

STAFF CONTRIBUTORS

Travis Dudfield

Kent Hurl

Christopher LaPrairie

Michelle May

Arianne Moran

Sanjit Purewal

Stuart Rennie

Kerry Simmons, QC Judy Yen

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EXECUTIVE DIRECTOR

KERRY L. SIMMONS, QC

The Voice of the Membership: What You Say Matters

You’ve renewed your CBABC membership, or perhaps joined for the first time or returned after a break. That’s fantastic! Why? Because you have made an investment in your career and a commitment to your profession. You’ll connect with the people, knowledge and skills you need for career-long success. Those meaningful relationships you build with lawyers through your professional association will enable you to meet the challenges you face every day.

CBABC members say that the value of being a member and their satisfaction with being a member is continually improving. Those who rate the value of their membership as high and those who rate their satisfaction as high most frequently mention the good quality professional development, programs, services and networking opportunities as the reason for their opinion.

Where does this information come from? Beginning in 2017, CBA partnered with NANOS to survey members twice a year about everything from professional development (“PD”) programming to advocacy priorities and everything in between. The results are considered by the CBABC Executive Committee and CBA National Board when setting advocacy and strategic priorities and by staff to introduce new programs and services and retire others. This “member intelligence” as we call it, gives you a voice about what you value, what is important, and how we are doing in delivering the benefits of membership.

Why complete the survey when it lands in your inbox? Well, 90% of

those who do say they complete the surveys to give input for better decision-making by CBA leadership, to be a good member and support the profession, and to identify issues that affect how they value their membership.

So what else have members told us?

In May 2019, 90% of respondents said that calling for justice system improvements (such as addressing judicial vacancies and access to justice), and protecting solicitor-client privilege were at the top of the list of their advocacy priorities. 80% of respondents said that promoting equality in the legal profession (overcoming systemic bias in the legal hiring process, measuring diversity, etc.) and encouraging mental health training is important or somewhat important. More than 65% said that advancing the Truth and Reconciliation Calls to Action related to the justice system and the legal profession is important or somewhat important. Just under 65% said that reducing the debt of law students and new lawyers is important or somewhat important.

available throughout Canada, and we’ll add more support for our advocacy and policy development.

Speaking of PD, whether through Sections or PD seminars, survey respondents say they are most interested in substantive law offerings and 80% want online PD. So in response, CBABC will have more of our twohour PD webinars and we hope to increase the recording and webinaring of Section meetings while trying out new platforms for web-delivery to find what works best for members.

So when that survey next lands in your inbox, please complete it. It’s a quick way to let CBABC know what you need and want and what is important to you. Your engagement will influence what happens in your professional association.

This information supports existing work and new initiatives. In September at Provincial Council, CBABC will introduce three new committees: Professional Issues, Indigenous Justice Advocacy, and Truth & Reconciliation Advisory through which members will develop CBABC policy and recommendations in those areas. The Young Lawyers Advisory Committee is working on an advocacy campaign regarding student debt. We’ll highlight more mental health training programs

When members value and are satisfied with their CBABC membership, they renew and encourage others to join. This leads to growth in numbers which, in turn, supports the sustained and credible voice of the association. This past year, our membership grew to 7,221, a 2.1% increase over the year before. It’s an exciting time for CBABC so make sure you stay connected through Sections, News & Jobs and the people you’ve met through CBABC.

Kerry L. Simmons, QC ksimmons@cbabc.org

RICHARD FYFE, QC

AI and the Future of Law

The justice sector has a long and successful record of implementing digital solutions. BC developed one of the first fully integrated case and offender management systems for criminal justice agencies and is the first jurisdiction in Canada to implement e-filing in civil court. BC is also a leader in utilizing digital audio recording software that fully integrates with case management systems.

With access to technology that previously seemed impossible, citizen expectations for ubiquitous mobile access to government services has increased. To navigate this new reality, the justice sector is looking at how to use artificial intelligence (“AI”) technology to address business needs and improve access to justice.

One area being explored is the use of AI to improve the court experience for clients. Last year, in collaboration with Innovate BC, the judiciary, and other partners, the ministry ran a public competition to showcase AI solutions to real, client-informed, justice sector business challenges. The outcome was over 15 proofs of concept from 12 technology companies.

One of the business challenges is whether AI technologies can help self-represented clients attend their scheduled court hearings. Using AI enhanced optical character recognition, clients use their cellphones to take a photo of the document they received. The software analyzes the information; provides a plain language overview of the document; diarizes

the court attendance time and date; and, using 3D navigation software, helps them navigate their way to the court house and court room.

Another business challenge is how to use AI to help clients with their family justice matters. A smart online interactive guide in multiple languages (e.g. English, French, Mandarin and Punjabi) is being developed. This solution assists clients in accessing family justice services, while helping address language, literacy or visual barriers. The development of a “Chatbot” or interactive AI augmented guide to help clients navigate probate, wills and estate matters is also under consideration.

to innovation and the use of new digital technologies is underway.

Introducing new technologies responsibly will provide citizens or court users with better access to the justice system so they can resolve their legal matters more quickly, easily and affordably.

It is important, however, to remain aware of the possible misuses of AI and not fall prey to the technological imperative that sees new technology through a somewhat deterministic lens, and without sufficient awareness of the potential impact of those technologies. For example, a recent NY Times (“NYT”) article notes that China is apparently using facial recognition technology to monitor the Uighurs, a Muslim minority, to conduct arbitrary searches; a practice the NYT characterized as “automated racism.”

The ministry is exploring AI enhanced voice recognition to automatically transcribe court audio quickly and affordably, with a high rate of accuracy, and developing an intelligent reviewer that helps retrieve large volumes of information and data; analyzes the data; and intelligently retrieves the most salient points to support legal research, reviews, assessments and decision making.

Work to develop these products into viable solutions will continue. Products will continue to be tested with clients before being further developed, in 2020, if successful. Simultaneously, to ensure our laws can be modernized, a review of legislation and regulations to identify barriers

For the justice sector there is also a need to be vigilant around algorithm bias, a phenomenon that emerges because algorithms are created by individuals whose own conscious or unconscious inclinations may result in unintended consequences. The launch of Google’s facial recognition feature was an unhappy example of this bias as racially diverse users were often incorrectly tagged as not human.

This is not to suggest that AI does not show promise to help address access to justice barriers; only a caution that we approach this technology with care so that we are advancing, not jeopardizing access to justice.

Richard Fyfe, QC is the Deputy Attorney General for British Columbia, and recipient of the Premier’s Award for Leadership, and the UVic Gustavson School of Business Distinguished Alumnus Award.

feature

The Future of Law

How the Access to Justice Triple Aim

can make a difference

In June of this year, more than 50 justice system entities –courts, tribunals, government, legal service deliverers, legal education organizations, and others – publicly endorsed the Access to Justice Triple Aim.

The Access to Justice Triple Aim is a single goal with three elements: (1) improved population access to justice; (2) improved experience for the users of the justice system; and (3) improved costs. By endorsing the Triple Aim, sector leaders and participants acknowledged the access-tojustice challenge for ordinary British Columbians, and demonstrated their aspirations to be part of the solution. Although the Triple Aim may sound modest to some, its three elements are potentially revolutionary.

First, working toward improved population access means improving access to justice for everyone, including for sub-populations that may currently experience more barriers to accessing justice – for example, Indigenous peoples or people with disabilities. This element encourages assessing current access levels and evaluating over time whether things are getting better… or worse. How is this radical? The justice sector is behind other sectors in using data to measure performance, and those working in the sector are often reluctant to engage in performance measurement. It’s simply more attractive to keep doing things how they’ve always been done rather than to gather

data and use it to help determine what is working and what is not as the evidence upon which to base reforms. Measuring our progress shouldn’t be scary. It can help us to better do our jobs.

Second, putting the user experience at the centre of the sector’s reform efforts is a significant break from the traditional model. Generally speaking, courts, tribunals and law firms have been designed with judges and lawyers in mind, not litigants. Design has been expert-driven, rooted in the myth that judges and lawyers alone have the knowledge and intelligence to solve the access to justice problem. The Triple Aim’s underlying premise

Third, bringing the cost element in opens up the possibility of making the “business case” for spending more public money on access to justice. The costs contemplated by the Triple Aim include, but extend beyond, direct costs to individuals – paying lawyers, photocopying documents, obtaining child care – and include, for example, the health sector and economic costs of increased stress, loss of work days and housing insecurity. These are costs borne by society because of a lack of access to justice.2

Although the Triple Aim may sound modest to some, its three elements are potentially revolutionary.

that we look at the justice system from the user perspective challenges that myth. It encourages bringing users into the design of the system, which has the potential to reduce the dissatisfaction, intimidation and inconvenience users of the justice system too often experience.1

People need solutions now. We should accept that there is no one solution to the access to justice problem. Rather, there are dozens of solutions, big and small – including, but not limited to, solutions using new technology that cumulatively will move the dial. Some solutions will require cross-sector collaboration. Others will require trying ideas that might fail, but adjusting and trying again. Most, if not all, will require approaching the problem from the perspective of the people using the system – the ones whom, after all, the system is supposed to serve.

1 For a discussion of these ideas see Hagan, Margaret D. (2018) “A HumanCentered Design Approach to Access to Justice: Generating New Prototypes and Hypotheses for Intervention to Make Courts User-Friendly,” Indiana Journal Law and Social Equality: Vol. 6: Iss. 2: bit.ly/bt0819p7-1 (accessed June 18, 2019)

2 Farrow, Trevor C.W. et al (2016) “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report”: bit.ly/bt0819p7-2 (accessed June 14, 2019)

The Honourable Robert Bauman, Chief Justice of British Columbia.

THE HONOURABLE ROBERT BAUMAN

Indigenousmatters

RANDY ROBINSON

Encompassing Indigenous Law

Are we living in an emerging era of Indigenous renaissance in Canadian law?

The National Indigenous Law Centre (the “NILC”) represents the future; an emerging era of renaissance in Canadian law that encompasses both an intellectual landscape and a practical landscape for Indigenous law. This article examines how Indigenous law was recognized in the past and canvasses one new institution, at the University of Victoria, anticipated to play a vital role in how Indigenous law may be conducted within the current Era of Truth and Reconciliation. Expressions of Indigenous law within the contemporary space at NILC will demonstrate the renaissance of past and present forms of law to aid and transform the future practice of Indigenous lawyers, communities, and families within the landscape of a Canadian public consciousness toward Indigenous peoples.

The Indian Act was the main legislation that governed the relationship between Indigenous peoples and Canada until recently. The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and the Truth and Reconciliation Calls to Action are contributing to a rebirth in how Indigenous law is practised. A recent interview with Dr. Val Napolean highlights just how this kind of renaissance is taking root. Particularly, at the University of Victoria’s Indigenous Law Research Unit (“ILRU”) where it is expected the NILC will be built in 2020.

Dr. Napoleon is the Law Foundation Chair of Aboriginal Justice and Governance, and Director of the ILRU and the JID-JD, Faculty of Law, University of Victoria. Dr. Napoleon’s work focuses on Indigenous legal traditions, legal theories, feminisms, citizenship, self-determination, human rights, and governance.

Dr. Napoleon shared her enthusiasm and excitement about the plans underway for building the NILC in 2020. Dr. Napolean posits that there are differences between Indigenous law and Canadian law and asserts that there is a need to take a serious look at how the intellectual and practical landscapes of Indigenous law are changing. In Indigenous Legal Traditions: Roots to Renaissance, Dr. Napolean and Freidland state that: “the renaissance or resurgence of Indigenous law, claimed, recognized, and engaged with seriously as law.” This is important because it captures what the renaissance is about: engaging seriously with Indigenous legal orders and traditions.

In a recent interview, Dr. Napoleon elucidates the key differences between Indigenous law and Canadian law that may contribute to the future of law in an era of renaissance. Canadian law is state law and Indigenous law is decentralized. Decentralized law refers to how Indigenous legal orders are rooted in kinship, oral histories and processes that are tied to the land. The law in this sense is not centralized in that Indigenous law will vary across

kinships, geography and specific Indigenous groups. Dr. Napoleon adds that if you look at the history of Canadian law as common law in the fifteenth and seventeenth century that common law was also decentralized. Dr. Napolean further explains that “law is a collaborative intellectual process that enables people to make decisions that they recognize are legitimate.

At an intellectual level the ILRU and the NILC will create a space for much needed dialogue about what Indigenous law is and how it operates in contemporary circumstances. Dr. Naploean also affirms that there are “long-term intellectual shifts taking place in Indigenous law that will impact how law is developed in the future. Dr. Napolean and Friedland maintain that: “the future of law is going to be to harness the long-term intellectual shifts in law.” Dr. Napoleon views this development of the NILC as an opportunity to rebuild Indigenous law by rebuilding governance and rebuilding citizenry. It creates a space for translating/transmitting oral histories and stories into resources for systematically and critically analyzing oral histories for contemporary solutions to problems.

The ILRU that will be housed in the NILC was the only Indigenous law research unit in Canada until recently with the addition of a sibling research unit at the University of Alberta. The ILRU hopes to branch out across Canada and internationally to Sydney, Australia. The ILRU

works in partnership with the community through invitation only and offers a three-day workshop to teach methodology. Dr. Napolean shares that the centre offers a onemonth intensive course every year on International dialogue about Indigenous law.

Another initiative of Dr. Napolean’s taking place at the ILRU has been a water project. The water project allows for legal work to be applied to the hard problems in Indigenous communities.

The water project works with three specific regions that face water scarcity. According to Dr. Napolean, the unit has researched words from the Indigenous laws in each of the regions. An associate of the ILRU is assisting the research unit to examine both the relevant state law and Indigenous law. The goal is to find out whether state law and Indigenous law can be reconciled for more equitable management of the water resource. Incorporating both the state and Indigenous law as guidelines for resource management.

contribute to the Indigenous renaissance and resurgence.

In Indigenous Legal Traditions: Roots to Renaissance, Dr. Napolean and Freidland state that “The renaissance of Indigenous legal traditions is not about a specific concrete outcome, but rather about rebuilding the intellectual resources and the political space to have more symmetrical, reciprocal and respectful conversations within and between Indigenous and state legal

that at the University of Victoria an “innovative and ambitious academic initiative is in the works.” Particularly, “a joint common law and Indigenous law degree program a juris Indigenarum Doctor and Juris Doctor” is available to law students and scholars interested in studying in this area. This degree program would be the first of its kind in the world.” This is important because it embodies a movement on the intellectual landscape within law schools and the academic communities toward realizing the necessary incorporation of the practical and intellectual landscapes that comprise an Indigenous renaissance.

Dr. Napolean affirms that the NILC should be an inviting space for all people and should generate excitement about sharing across our different legal perspectives and across our legal orders. She states: “People who are from around the world are hungry for a different way of thinking about Indigenous law. Across Canada, people have been talking about fairness, inclusion, equality, dignity, individual autonomy and collective responsibility.” The water project is an example of how the research unit and the NILC will

traditions.” Although the water project is a concrete example, the more important outcome of this project is that it is a collaborative intellectual process that is facilitating a recognition of Indigenous laws as a means to arrive at legitimate decisions about increasingly scarce resources.

Dr. Napolean and Friedland state that North American law schools are moving toward developing and offering substantive curriculum on Indigenous legal traditions. At the University of British Columbia’s Allard School of Law, the Indigenous Legal Studies Program offers a range of courses that focus on Indigenous legal traditions. Dr. Napolean relates

The NILC has the potential to embody a significant marker in an Indigenous law resurgence and renaissance. It is a reminder that one of the distinguishing features in building the NILC is that the physical space and intellectual spaces should reflect a process of making room for the passing on of knowledge consistent with Indigenous law.

A key question remaining now may involve asking where does this renaissance in Indigenous law lead to next in the development of more equitable laws and policies for applying Indigenous laws nationally and internationally toward equality in Indigenous communities?

Randy Robinson is an Algonquin lawyer from the Timiskaming First Nation. He is currently appointed the Northern Representative of the Canadian Bar Association’s Aboriginal Lawyer’s Forum.

The above illustration is not for commercial use.

guest

INTERVIEWED BY BRANDON D. HASTINGS

Gillian Hadfield

On appropriate regulation of legal service providers

This article is composed from excerpts of an interview with Gillian Hadfield on May 14, 2019 in Vancouver. It has been heavily edited for style and brevity.

QWHAT CAN WE DO ABOUT THE ACCESS TO JUSTICE CRISIS?

It’s important that we expand the range of people, professionals, and types of businesses that can give people help. The move that we’re seeing – let’s license paralegals – is a good move. It can’t have much of an impact on the access to justice problem, though, because paralegals are working in the same kind of business model as lawyers and you can’t be truly efficient at the small scale available to lawyers operating under the rules prohibiting outside investment or employment by non-lawyer-owned enterprises.

As you gain scale you can develop technologies because you figured out how to sell to enough people. You can make the cost per person much lower. You can be more transparent. People don’t want to buy hours: they have no idea what a legal hour means. But you can’t do flat fee pricing without substantial scale because you need scale to absorb the risks: sometimes you can figure out how to have that one mediation session with the other side and you can be done in a couple of hours. Sometimes it’s going to just drag on for months. You need scale in order to smooth that out.

Q: HOW WOULD YOU RESPOND TO SOME OF THE COMMON CRITICISMS FROM THE BAR?

There is tremendous opposition from ordinary lawyers to the kind of changes that I talk about, and actually a lot of that reaction isn’t just “I think that’s a bad idea, we shouldn’t do it.” It’s also “How dare you!” Sometimes it’s just driven by “Don’t mess with my business here,” but it can be sincere.

One of the things to consider is the very high levels of stress, substance abuse, family breakdown, and depression among lawyers. I want to say to that group: “What you are experiencing and suffering, is the other side of what’s really bad about the way we do things.” The vast majority of people like to be employees. Employees show up at work, and the employer takes on the risk. The basic trade is I get hired as an employee and the organization, worries about the rest of the business. That’s a deal with risk.

running this business and they’re saying the big company’s going to beat me out. They’re not saying “I can be the big company. I’d be part of that. I can actually be the person who’s helping to make that successful.” You close the door and open a window –it’s a big, big, big window.

The kind of thing I hear all the time is along the lines of “This would destroy the independence of lawyers” or “Professor Hadfield doesn’t understand the critical role that the independence of the legal profession plays in upholding our democracy.”

I think a significant part of it is just misunderstanding the economics and the way regulation works. Lawyers often respond by saying “corporations are bad and if lawyers work for corporations, they will have to serve corporate interest and not public interest.” But corporations are everywhere in our economy: they serve food in restaurants, build buildings, own taxi cab companies, and fly airplanes. Why do we have confidence that the food we eat is produced in a sanitary kitchen? Because they get audited. Somebody comes in and checks.

When the small firm practitioner thinks “Oh, you’re going to allow companies to come in and compete with me. I’m going to lose my business,” and you say, “Well, maybe, but you can become an employee, or a partner of those providers, and that’s how you actually move to a much better, happier, financially rewarding, personally rewarding, stable, life.”

So, you don’t want to think “I’m going to lose business to the company,” because you can be the company. I think the gap is that lawyers are

The people who work for these companies, yes, they work for an employer to whom they have obligations, but they absolutely are obligated to follow the rules we put in place to make sure that they’re making decisions in the public interest. That’s similar to what we have seen with doctors –they are held to their medical ethics, even if they are employed by hospitals or health insurance plans.

Brandon D. Hastings is a lawyer and mediator with expertise in family and civil litigation, and appeals. Gillian Hadfield is a leading proponent of the reform and redesign of legal systems for a rapidly changing world facing tremendous challenge from globalization and technology.

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SALMAN AZAM

Artificial Intelligence, the “AI Justice Challenge” and the Future of Law

Agoogle search of “industries disrupted by artificial intelligence” returned an article listing 12 industries: Medical Diagnosis, B2B Processing, Mathematical Analysis, Resource Scheduling, Manufacturing, Transportation, Surgery, Insurance, Education and Law.

Artificial Intelligence (“AI”) applications in law are now a reality, as they are for several broad swaths of industry in our society. The use of this technology is ostensibly aimed to improve the justice system by streamlining and simplifying – and should ultimately support greater access to justice to society. There are, however, important cautionary considerations as this technology continues to proliferate.

It’s important to recognize the use of AI is meant to be assistive, be user experience based and cast a net to improve access to justice. As a counterpoint, there is a growing and controversial use of AI to assist with decisions based on recidivism and historical data: the purpose of this application is to speed-up sentencing to reduce backlog that exists within the justice system.

For instance, in Wisconsin, a judge imposed a long sentence on a black defendant, Eric Loomis. Loomis challenged the sentence, and asked to see the considerations that went into his “criminal risk assessment” – an assessment that was generated by an AI, and used by the original presiding judge. The state Supreme Court

(the appeal court) declined to hear the case. Whether the algorithm’s output provided a sufficient level of transparency, and to what degree it relied on historical data, remains unknown. The worry is this decision has disproportionately impacted disadvantaged populations.

Similarly, California recently passed a law that requires state courts to use machine learning and other statistical tools to sift through the backgrounds of people accused of crimes. The law is intended to determine whether suspects should be incarcerated prior to trials.

The justice sector partnered with Innovate BC, and BC’s technology innovation community to launch an “AI Justice Challenge.” The goal is to improve and optimize the user experience with solutions developed in five different areas:

„ Smart Online Guide: an aid to complete forms easily and correctly, respond to citizens in their preferred language and aids to converse.

„ Intelligent Reviewer: a system that can intelligently parse a document and retrieve salient and relevant points quickly.

Both Wisconsin and California use historic data to generate correlative insights. This approach reinforces embedded biases and continues a vicious cycle for disadvantaged populations. The data presented to a judge, essentially, becomes another witness against the user in the justice system – the transparency of which is neatly obscured in a computer algorithm. Artificial Intelligence that is used to repeat the historical mistakes of the past is a misapplication of this disruptive yet promising technology. British Columbia’s approach to Artificial Intelligence in its justice system is being guided by the desire to create an assistive, streamlined, efficient, effective and accessible experience for citizens going through a legal process.

„ Online Justice Chatbot: AI to provide legal information or guidance to matters involving probate, wills and estates planning.

„ Auto Transcriber: faster, cheaper transcription.

„ Smart Court Inquirer: an interactive platform for tracking trial processes, including an augmented reality application for way-finding.

While BC’s approach focuses on optimization of the user experience, many American jurisdictions have begun the use of AI to address efficiencies that aim to reduce recidivism, and reduce pressure on prison systems. This use of AI is very concerning. British Columbia’s focus on access to justice and user experience, conversely, is believed to be a much better use of the technology, and will ultimately be more effective in bringing the efficiencies needed in the justice sector.

Salman Azam, Assistant Deputy Minister & Executive Financial Officer with the Corporate Management Services Branch of the Ministry of Attorney General + Ministry of Public Safety & Solicitor General + Emergency Management BC.

Keep Current A review of provincial Section meetings

THANK YOU, SECTIONS EXECUTIVES!

We would like to recognize our 465 CBABC members who volunteered to oversee our highly active 76 Sections. These volunteers have been an integral part of the success of Sections, and we thank them all for their efforts in building a stronger and robust group of Sections. These volunteers have produced and hosted 340+ meetings through their Sections this term, which were accredited for more than 300+ CPD hours. Of our 76 BC Sections, 45 of these held one or more of their meetings remotely, accounting for 157 remotely accessible meetings to members of the CBA across Canada. More than 5400 BC members enrolled in Sections this term to take part in this year’s Section activities. We look forward to working with the new slate of Volunteer Executive Officers in September and to welcome new and renewing members alike!

The Future of Law through Sections

uuu On November 15, 2018, the Construction Law Section held a meeting to discuss the new developments in lien law. Dirk Laudan, Partner at Borden Ladner Gervais LLP, presented on the Builders Lien Act reform across Canada.

Mr. Laudaun spoke about significant reforms to lien law that are underway in various provinces as well as at the federal level. He also mentioned the formation of various expert committees that are reviewing industry approaches to liens and legislative reforms related

to holdbacks, adjudication and bonding, with a special focus on the push for prompt payment legislation.

To watch this in-depth presentation, please visit: bit.ly/bt0819p12-1

uuu On December 17, 2018, we learned about the potential challenges of losing Chapter 11 of the North American Free Trade Agreement (“NAFTA”) through the International Law Section. Chris Elrick of Fasken and Tom Hatfield of Norton Rose Fulbright discussed the history of NAFTA arbitrations in Canada, the current state of affairs, and the potential impact of losing Chapter 11. Panelists spoke on the context of the standards of protection found in investment treaties and how Canada has fared in contrast to the United States and Mexico in these dealings. In addition, they discussed changes that could come with the new United States-Mexico-Canada Agreement and the implications that it could bring to international law as well as foreign investment in Canada.

To watch our speakers provide insights on these matters, please visit: bit.ly/bt0819p12-2

uuu On January 17, 2019, the Civil Litigation – Vancouver Section welcomed British Columbia Attorney General David Eby, who presented his views on ICBC, the Legal Aid Review and the judiciary’s role in rule-making and his plans for the rules committees. He commented on the ICBC changes, concerns and initiatives to come regarding challenges to the insurer and road safety. He also spoke on the Legal Aid Review and access to justice related to finances.

To watch The Honourable Minister David Eby’s comments on these topics, please visit: bit.ly/bt0819p13-1

uuu As with any other profession, the practice of law is now evolving to accommodate this new age of technology. On February 22, 2019, the Civil Litigation –Vancouver Section invited Mr. Justice Elliott M. Myers to speak about the future of electronic displays of evidence in the courtroom. This fireside chat included a debriefing on recent examples in the court where the use of technology, such as Caseline Software, was helpful both to the judge and progression of the trial overall. Michelle T. Maniago, partner at Borden Ladner Gervais LLP, counsel on one of the few cases to be completed in BC using almost exclusively electronically presented evidence, hosted and gave practical tips derived from her experience.

To learn more about best practices of using technology at trials through first-hand experience, please visit: bit.ly/bt0819p13-2

uuu Lawyers no longer have a monopoly on legal information as self-represented litigants are commonplace and clients are seeking limited legal services as a result. Unbundling requires a new and different mindset than traditional lawyering, and the next generation is perfectly positioned to lead the way.

On May 22, 2019, the Young Lawyers – Lower Mainland Section joined the Unbundled Legal Services Section on an informal conversation regarding changes in the legal profession, especially innovative lawyers from the digital and technological age providing

unbundled legal services. Arash Ehteshami and Priyan Samarakoone of EQ Law, Mike Stewart of Administrative Tribunal Advocates of Canada Law and Ashley Syer of Syer Law Corporation shared their experiences as young lawyers opening their own firms, discussing how unbundling legal services is shaping their practices and the future of law in general.

To learn more about opening your own practice as a young lawyer and for first-hand advice on the benefits and challenges of providing unbundled services, please visit: bit.ly/bt0819p13-3

uuu Developing trends in Canadian society outside of the traditional spousal relationship have brought a re-definition of the “spouse” in the legal perspective, for instance in non-married, samesex, polyamorous relationships, and even “living apart together” couples. On April 2, 2019, the Wills & Trusts – Vancouver Section hosted Amy Mortimore, senior estate lawyer and partner at Clark Wilson LLP, who gave an update on the definition of a “spouse” in the estate context.

Ms. Mortimore presented on the Wills, Estates and Succession Act, its history and current definition of “spouse.” She also described various cases such as Mother 1 v. Solus Trust Company, 2019 BCSC 200 that show how the term is evolving and how we may contribute to the development of the definition going forward in the practice of law.

To access the recording for this thought-provoking presentation, please visit: bit.ly/bt0819p13-4

GET READY FOR THE 2019/20 SECTION TERM!

„ CBABC members receive unlimited access to all 76 BC and 41 National Sections and Forums. There are no additional costs to enroll in Sections!

„ RETURNING Section Members? CBA members will automatically be re-enrolled to their previous year’s preferred Sections upon renewing their membership. Email sections@cbabc.org for further details.

„ Are you CBA member outside of BC? CBABC offers many Section meetings accessible by webinar and/or teleconference. CBA members outside of BC are welcome to participate in BC Section activities by paying the BC Branch levy.

practicetalk

DAVID J. BILINSKY

The Future of Law

Which road shall we choose?

r I shall be telling this with a sigh Somewhere ages and ages hence: Two roads diverged in a wood, and I –I took the one less traveled by And that has made all the difference r – Lyrics by Robert Frost, music by Randall Thompson

Law is presently at a crossroad. On one hand, I can see a brilliant legal future that resembles Tomorrowland at Disneyland – filled with sparkling new technologies such as AI, Blockchain and innovative legal search tools that help lawyers meet and exceed client’s needs. On the other hand, the future could be a place where lawyers have been largely marginalized, the right to representation is bypassed in the name of expedience, the rule of law is undermined by politicians and the justice system ridiculed due to its cost and failure to render justice in any meaningful way to the majority of the public.

The new technological tools, while welcome and exciting, do little to change the justice system from a structural standpoint. They are, I fear, the equivalent of a new technological way to flog a dead horse. Without redoing the justice system to make it simple, speedy and affordable, it may simply collapse due to its own burdensome complexity, delay and cost, taking lawyers and their future, with it.

Which road shall we choose? The future is in our hands.

JUSTICE UNDER ATTACK

The signs of a darker future are certainly apparent, and voices have been raised calling for greater attention. No less than Madam Justice Beverley McLachlin, the former Chief Justice of Canada has said: “ The principles and institutions underpinning the rule of law are under increasing attack, even in Western democracies.” If the rule of law is undermined, then so is the future of justice and lawyers. As lawyers, we need to be seen to work with other stakeholders to find ways to strengthen the rule of law and be powerful and reasoned voices to advocate when it is under attack.

STRUCTURAL ISSUES

EMERGING ISSUES

Technology, along with other factors, is causing changes in society at a rapid pace. The law has largely lagged behind in providing protections, resulting in corporations and other entities asserting greater and greater powers over individuals who largely are left without effective remedies. For example, The Office of the Privacy Commissioner of Canada recently stated: “Commissioner Daniel Therrien warns privacy concerns are reaching crisis levels and is calling on the federal government to take immediate action by giving his office new powers to more effectively hold organizations to account.”

Law is complex. Along with the sheer number of laws, regulations, bylaws and such that apply to everyday life, there is the issue that each jurisdiction has its own laws, in some cases for a relatively small number of people. The BC Law Institute, for example, in its constitution, has as one of its goals to: “promote the clarification and simplification of the law and its adaptation to modern social needs.” Much more can be done to make laws consistent in application and simpler across all types of borders and within jurisdictions as well.

“Unfortunately, progress from government has been slow to non-existent,” says Commissioner Therrien, whose annual report to Parliament was tabled. “Not only are the privacy rights of Canadians at stake, so too is our democracy and other fundamental values.”

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 (presently on leave). Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

Law loses its value if it fails to grapple with emerging legal issues and provide protections for those in society. This challenge will only continue to grow over time.

REGULATORY ISSUES

The rules and operation surrounding civil procedure, criminal justice, mediation and arbitration, administrative boards and tribunals as well as the regulatory environment of lawyers is reflective of the complex legal environment within which lawyers operate. Working with judges and others to adopt processes to regularize laws and streamline and simplify the operation and regulation of justice and regulatory systems are steps in the right direction.

LAW SCHOOLS

What kind of challenges do law schools train law students to meet? According to the Harvard Law Review in an article entitled, Law Schools, Leadership, and Change by Susan Sturm: “There is a growing sense that law school is preparing people for a set of professional roles that do not match the demands or needs of a changing society. Research has documented an overemphasis on a narrow conception of technical mastery, and an underemphasis on the imperative to connect education with professional leadership for challenging times.”

Sturm continues later in the article: “Issues of justice, problem-solving ethics, change strategies, and inequality also tend to be marginalized

within the mainstream curriculum, which encourages students to develop a radically skeptical attitude toward even the possibility of engaging in normative argument or achieving change.”

If we are going to implement the kind of changes that Sturm is advocating, we need to start by training lawyers to meet the challenges of the future head on. We need to emphasize how lawyers can be change agents in defining the future relationship of law to society.

If the rule of law is undermined, then so is the future of justice and lawyers. As lawyers, we need to be seen to work with other stakeholders to find ways to strengthen the rule of law and be powerful and reasoned voices to advocate when it is under attack.

CRIMINAL JUSTICE

According to the Canadian Department of Justice: “The cost of the criminal justice system is high. A Justice Canada report estimated that the total cost of Criminal Code offences to the justice system and society in 2008 was about $100 billion, including tangible costs of $31 billion. Roughly half of these tangible costs were criminal justice

system costs. Police account for the majority of expenditures (57%), followed by corrections (32%), courts (5%), prosecutions (4%) and legal aid (3%).” Lawyers can be meaningful players in discussions on how to implement change to reduce the delay, cost and operation of the criminal justice system so that justice can be seen to be done.

FAMILY LAW

There is perhaps no area of the law that needs systemic change as family law. M. Jerry McHale, QC stated it well: “Last, but not least, closing the implementation gap – the discrepancy between what we know and what we actually do in family law – is also a matter of changing the underlying adversarial culture of the family justice system to make it less contentious and more truly collaborative. Academics, practitioners and critics have been writing about this change for nearly 40 years! Admittedly, it is no simple task – adversarial attitudes are deeply woven into the history, fabric and methods of the justice system. But the exorbitant fiscal and emotional costs of the long-dominant litigation model can no longer be supported. The system is unworkable, and it is losing credibility. As such, it falls squarely and immediately to the law schools and to the judges, lawyers, legislators, administrators, and service providers who make up the family justice system to come to grips with the problem of adversarial family law culture change for once and for all.”

So what road will we take, either through action or inaction? That choice will make all the difference.

Solicitor Client Privilege

The electronic future

Before the digital age, lawyers gave advice to clients and that advice – and related documents – stayed in filing cabinets and locked drawers. The advent of computers, laptops and cellphones means that advice is now vulnerable to state intrusion.

Solicitor Client Privilege (“SCP”) is at risk of being severely compromised because of the ease of storage, access and transfer of information. Lawyers must remember that SCP is not our privilege to waive – that can only be done after informed consent and should only be done when it is a clear benefit to the client, determined by the client after independent legal advice.

SCP is a fundamental right central to the proper administration of justice. Communications that fall under SCP are those that are: 1) between a lawyer and a client; 2) for the purposes of seeking or giving legal advice; and 3) be intended to be confidential between the parties. While not all communications may engage solicitor-client privilege, communications with clients should be treated as though they do. When a client is travelling across international borders or under investigation, they need to be informed of the consequences of waiving SCP. Lawyers will face a significant challenge in providing sound advice to clients about maintaining privilege.

As recently as January 2019, Brown, J., of the BC Supreme Court decided

a matter where a client was asserting SCP over electronic data and documents stored electronically and seized as part of an Income Tax Act investigation (Solicitor Client Privilege of Things Seized, (Re), 2019 BCSC 91). After the warrants were executed, the search was halted for a list to be provided of the SCP claimed documents. The Crown brought this application two years later to allow the CRA to process the documents seized.

The parties could not agree as to how the searches should be carried out, or by whom. The Crown argued the search should be done by the CRA’s Forensic

Law Society – should be engaged to identify solicitor client related materials, isolate them, and ensure that documents without SCP would be forwarded to Crown. In this case, however, Brown, J. found that because the Respondent client’s interests were different than the search of a lawyer’s office, that a referee did not need to be appointed, but that an independent technician with expertise in forensic computing would allow for a “secure, efficient, and reliable separation of solicitor client privileged materials.” This solution clearly balanced the needs of preserving SCP while providing for an efficient search, but only time will tell if it is a viable long-term solution in keeping with the fundamental right inherent in SCP.

Maintaining privilege will, in future, be as important to criminal, quasi-criminal and regulatory investigations as maintaining the right to silence in the face of police questioning.

Team, and the Respondents argued that process did not do enough to isolate the privileged material. The Respondent argued that the process identified in Lavalee, Rackel and Heintz v Canada 2002 SCC 61, the appointing of an independent referee – a lawyer regulated by the

Maintaining privilege will, in future, be as important to criminal, quasi-criminal and regulatory investigations as maintaining the right to silence in the face of police questioning. Because so many of our communications are made via email, text, social media and messaging apps – and because it has been held in some jurisdictions that there is a lesser privacy interest in a password or fingerprint unlock to a cellphone – there will be a need to have the client inform the state agent that SCP may be engaged or at play. The Courts will find themselves frequently addressing a process for how to deal with SCP materials, and whether it may be admissible, either for the truth of its contents, as a business record, or as a reason the client did, or did not, take a particular action.

LISA JEAN HELPS

Lisa Jean Helps is a senior criminal trial and appellate lawyer practising since 2004 at Helps Law Corporation in Vancouver.

I give to my community and with Vancouver Foundation, my giving lasts forever.

75 years ago, a single gift started Vancouver Foundation and that gift is still making a difference in the community today.

We can help you create a fund that gives forever. Get started at vancouverfoundation.ca/create or call Kristin at 604.629.5186

news&events

CBA

An End to the Captivity of Whales and Dolphins

A historic piece of animal rights legislation, the “Free Willy” bill, is now set to become law.

It was nearly five years ago that former Sen. Wilfred Moore first watched Blackfish with his son.

The 2013 documentary examines the life of Tilikum, a performing orca, and the toll captivity took on him. He was just two when he was captured in 1983 near Iceland. He spent the rest of his life in a tank, first at Sealand of the Pacific in Victoria, BC and then at SeaWorld in Florida, where he was moved in 1992. Before his death in 2017, he was involved in the deaths of three people, which the film attributed to him having being driven mad by captivity.

Moore couldn’t believe what he saw on the screen. “You couldn’t help but feel for him.”

A Nova Scotia native who had long been awed by whales in the wild, Moore said he had a tough time accepting they could ever be at home in a tank.

When his son, Nicholas, asked if there was something he could do about it Moore said he would try.

And now he has. Nearly four years after he introduced Bill S-203, better known as the “Free Willy” bill, keeping whales, dolphins, and porpoises in captivity, is about to become a criminal offense in Canada.

After languishing in the Senate for years and swimming against a strong tide of Conservative opposition and procedural stalling tactics, the House of Commons voted to pass the Ending the Captivity of Whales and Dolphins Act on June 10, 2019.

Read the full article

CBA NATIONAL MAGAZINE

Keeping Humans in the Loop

“Software is eating the world,” Marc Andreessen wrote some time ago. That’s not necessarily a bad thing. Today, machine-learning algorithms are improving and automating human performance in sectors ranging from medicine and financial services to manufacturing and retail.

Even our judicial institutions are looking at machine learning to improve administrative decision-making and service delivery. Last year, Justice Canada launched an AI pilot project intended to help guide decision-makers in immigration, pension benefit, and tax cases. Some provinces are looking at predictive risk assessment tools to guide them in their bail decisions. Some US courts are already using them.

But as bureaucratic and legal decision makers rely increasingly on algorithms, we could be headed straight for a moral and political legitimacy crisis, says Pim Haselager, a philosopher and professor at Radboud University. Speaking at last month’s International Conference on Artificial Intelligence and Law in Montreal, Haselager also raised troubling questions about what the rise of “algorithmic governance” means for legal professionals.

Read more

AWARD NOMINATIONS

2019 Georges A. Goyer, QC Memorial Award for Distinguished Service

Nominations are now open to recognize exceptional contributions to BC’s legal profession, to jurisprudence in British Columbia or Canada, to the law or development of law in BC or to providing a significant lawrelated benefit to BC residents.

(L-R): 2018 award recipient, Terence La Liberté, QC with Margaret Mereigh, CBABC President

Check out CBABC.org/awards to learn more and submit the nomination form.

Nominations close on Friday, September 27, 2019.

Pitch Us Your Article Idea with this new online form.

CBABC MENTORSHIP PROGRAM

Calling All Lawyers: Mentor a Law Student

Share your knowledge with a developing legal mind.

CBABC welcomes you as a volunteer mentor in our Student Mentorship Program now underway for the new school year at UVic, TRU and UBC.

Students request and welcome lawyers of all backgrounds: women, Indigenous and LGBTQ lawyers are all encouraged to apply as a mentor to offer guidance and support in education and career planning.

Be a part of the next generation today by applying as a mentor at CBABC. org/mentorship. It’s one of most rewarding ways to volunteer your time and expertise with the legal community.

Decolonizing Law

To learn Indigenous law, first, forget everything you learned in law school.

I take it as an inarguable premise that all settlers have a responsibility to learn Indigenous systems of law. That Indigenous law legitimizes our presence on this land is a stance beyond argument within a reconciliation frame. To argue against this is to argue for colonialism. While the responsibility to learn is a responsibility held by all, here, I am speaking particularly to other settler lawyers, you who share my chosen work. And I want to tell you: we are uniquely poised to mess this up for everyone.

Read the full article

CBA NATIONAL MAGAZINE

news&events

WLF NEWS

Women Lawyers and the “GOOD Guys”

The Women Lawyers Forum is planning a unique approach to promoting the retention and advancement of women lawyers in our community. Considering that the majority of leadership positions in this profession are held by men, getting men on board with female leadership is crucial to addressing systemic barriers and promoting parity between women and men in law firms.

In collaboration with the National Conference of the Women’s Bar Associations, and with the full support of CBABC President Margaret Mereigh, the WLF is bringing to you a new program entitled “GOOD Guys – Guys Overcoming Obstacles to Diversity.” GOOD Guys is designed to break the impasse in women’s advancement in the legal profession by engaging people who are often not included in the conversation – the guys. Over the 2019/2020 term, the WLF is planning an event at which we hope to educate our male colleagues on the tangible benefits of placing women in leadership positions, and celebrate those guys who are ahead of the curve and already capitalizing on the increased outcomes associated with advancing and retaining women lawyers. The WLF sees GOOD Guys as the logical next step toward a future where gender parity in our profession becomes the norm

NEWS

CLEBC Update

CLEBC SUPPORTS AND ENDORSES THE ACCESS TO JUSTICE TRIPLE AIM

On June 12, CLEBC CEO Linda Russell joined Attorney General David Eby, Chief Justice Robert Bauman, and the leaders of many of BC’s key justice organizations to sign the Access to Justice Triple Aim, which will guide initiatives and reforms for making family and civil justice more accessible to British Columbians.

CLEBC is committed to improving access to justice by providing high quality, accessible, and comprehensive educational resources that help the legal profession provide individuals and families in BC with the legal services they need. To increase access to legal education, CLEBC provides bursaries and discounts for anyone in the legal profession wanting to attend our programs.

Since 2007, CLEBC has held a biennial Access to Justice for Children Conference focused on strengthening children’s access to justice by better equipping adults working with children

CBA NATIONAL MAGAZINE

Later Never Comes

It’s time to stop procrastinating. Here’s how to do it.

As a busy lawyer with an overflowing to-do list, it can be easy to put off tasks to another day. But procrastination is not a good habit to fall into.

The key for new lawyers is to learn the skills to help you manage your practice as efficiently as possible, says Allison Wolf, president of Shift Works Strategic Inc., a lawyer coaching service based in BC.

Learn more

in the justice system to recognize, uphold, and implement the rights and well-being of children in practice.

This past May, CLEBC proudly collaborated with A2JBC, CBABC, and three other organizations to present An Evening with Gillian Hadfield, a leading expert on access to justice.

CLEBC looks forward to working with the BC legal community to improve access to justice for all British Columbians.

ACTS IN FORCE

Current from to April 24, 2019 to June 17, 2019

The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org.

„ BUDGET MEASURES

IMPLEMENTATION ACT, 2018, S.B.C. 2018, C. 4

Section 81 is in force April 1, 2013

„ BUDGET MEASURES

IMPLEMENTATION ACT, 2019, S.B.C. 2019, C. 7

Section 52 is in force June 3, 2019

„ COASTAL FERRY AMENDMENT

ACT, 2019, S.B.C. 2019, C. 9

Sections 2 and 4 are in force May 22, 2019

„ FINANCIAL SERVICES

AUTHORITY ACT, 2019, S.B.C. 2019, C. 14

Specified sections are in force November 4, 2019

„ HEALTH STATUTES

AMENDMENT ACT, 2007, S.B.C. 2007, C. 19

Specified sections of the Act are in force November 4, 2019

„ PROFESSIONAL GOVERNANCE

ACT, S.B.C. 2018, C. 47

Specified sections are in force June 1, 2019 and December 1, 2019

„ SUPPLEMENTS REPEAL ACT, S.B.C. 2006, C. 33

Section 13 is in force November 4, 2019

20-21 CBABC Wills & Estates Conference 2019: Tackling Challenging Issues in Estate Law — Kelowna

35th Annual Bench & Bar Dinner

November 6, 2019 Fairmont Hotel Vancouver

CBA members and non-members are invited to join the CBABC Executive and Law Society Benchers in paying homage to those who have made outstanding contributions to the cause of justice in BC.

uuu Click here for more details!

It’s hard to believe that Canadian law is not available to the public online. Theoretically it is, but not in practice. Yet our lives are governed by millions of legal rules encoded in hundreds of thousands of places. It’s impossible for anyone to find and read them all, even when they are published (and they often aren’t). The only possible hope for a society in which we comprehensively abide by laws is to have them encoded digitally. No country has succeeded at doing this, or even tried, but Canada could move to a new system of “Digital Law” publishing in a matter of a few years, at relatively low cost.

CBA NATIONAL MAGAZINE

news&events

Lawyer Wellness can simply be making time for yoga on your lunch hour, or it could be finding a reliable person or a professional to hear you when you just need to talk. Finding what works for you is an opportunity to get to know yourself and learn how to increase your physical and mental wellness at work and at home.

SELF-CARE IS IMPORTANT

As a lawyer, you’re expected to always be at the top of your game. People in crisis rely on you! But who can you rely on when you’re in crisis, or even just when you need a shoulder to lean on? One of the best ways to care for yourself is simply to talk! So go ahead and talk with your peers, your friends, your family… it’s part of your healthy professional life.

Learn more

TIPS FROM

CBA NATIONAL MAGAZINE Bridging the Gap Between Law and Technology

It’s never been easy for laws to keep up with technological change. But the disconnect today between innovation and regulation is widening. To help bridge the gap, legal professionals, regulators, policy professionals, and technologists came together on August 1st for the World Legal Summit, in the hope of fostering a better understanding of the legislative frameworks shaping emerging technology and new global systems. CBA National interviewed the summit’s founder and president, Aileen Schultz. Read the full article

GENRES OF FUTURE LAW

The future of law is not so much a subject (think: catalogable topics like franchise, family, or equine law), as it is a genre (think: science fiction). As such, it’s easier to sort the future of law according to subgenre, than it is en masse. When you imagine the future of law, what subgenre do you dream in? From a lawyer’s perspective, is it dystopian fiction (like The End of Lawyers?: Rethinking the Nature of Legal Services by Richard Susskind)? Is it robot fiction, reflected in the countless articles on how routine legal services may soon be augmented or replaced by AI? Or do you tether your dreams like in mundane scifi – which explores currently available technology and extrapolates its near-term impacts?

Courthouse Libraries BC is increasingly looking at ways to catalog legal technology innovations (speculative or otherwise), and distill meaning from the numerous conversations around the future of law. We’re not alone, of course. Check out the online Legal Services Innovation Index (legaltechinnovation.com/innovationcatalog), a fairly new endeavour. It includes a catalog of law firm innovations (including an option to see only those in Canada), as well as an innovation index for firms and law schools.

Incoming Executive Director: Josh Paterson

The Law Foundation of BC is happy to announce that Josh Paterson, currently executive director of the BC Civil Liberties Association (“BCCLA”), will start as the new executive director of the Law Foundation on September 3, 2019.

Josh has led the BCCLA since January 2013. During Josh’s time as executive director, the BCCLA’s legal challenges and law reform work have created substantial change in Canadian law – from winning the right to medical assistance in dying to the victory overturning solitary confinement in Canada’s prisons. The BCCLA also modernized its governance structure, developed its first strategic plan, and significantly increased its financial capacity during Josh’s tenure.

Josh’s legal practice has included constitutional law, First Nations law, labour and human rights law, and environmental law, working at a number of different legal organizations and a litigation firm. He has served on a number of government advisory bodies, including BC’s Advisory Committee on Provincial Policing Standards, the BC Police Academy Curriculum Evaluation Steering Committee, and the National Energy Board’s Land Matters Group.

Josh has taught as an Adjunct Professor of Law at the Peter A. Allard School of Law at the University of British Columbia for six years. He holds law and master’s degrees from the University of Toronto, and clerked at Ontario’s Superior Court of Justice.

Legal Research Fund

The Law Foundation of British Columbia has established a fund of $120,000 per year to support legal research in British Columbia. The purpose of the fund is to support legal research projects that “advance the knowledge of law, social policy, and the administration of justice.”

The Fund is open to: members of Law Faculties at Thompson Rivers University, the University of British Columbia and the University of Victoria, as long as the application is submitted through their Dean; members of other faculties in British Columbia, as long as the research is law-related and the application is submitted through their Dean; members of the legal profession in British Columbia who can demonstrate that they have the background, interests and capacity to carry out the proposed project; and non-profit organizations with expertise in carrying out legal research.

The maximum amount available for each project is $20,000.

For more details on who may apply and the type of research eligible, see the Law Foundation website at lawfoundationbc.org/project-funding

The deadline for applications is September 6, 2019.

LISA PICOTTE-LI

Regulating the Future Things that can be done today

The Great Horse Manure Crisis of 1894 goes something like this. By the late 1800s, streets in cities around the world were filling with horse manure. In 1894, The Times newspaper supposedly predicted that in 50 years, every street in London would be buried under nine feet of manure. The crisis was discussed at the world’s first international urban planning conference, which ended early because there did not seem to be any solution.

Yet, by the early 1900s, the problem had disappeared. Vehicles replaced horses as the primary mode of transportation and new problems emerged. Concerns like preventing horses from becoming frightened by vehicles made their way into regulation. An Act to regulate the speed and operation of Motor Vehicles on Highways in British Columbia limited the speed of vehicles in cities to ten miles an hour.

The point of this example is not just a lesson in problem-solving and innovation. It shows that policy and regulation tend to reflect what we already know, rather than what is about to emerge. But the world is never going to move as slowly as it does now. The historical process of carefully crafted legislation that remain unchanged for long periods of time is challenged in an environment of constant change.

The speed, scaling, and iterative development of today’s products and services can result in markets that appear – and disappear – before existing regulations can even be applied.

Who, for example, has jurisdiction over an autonomous ride-sharing vehicle that delivers food? Who is responsible for a crash?

Regulations are important to protect the public and promote fair markets, particularly where the public is vulnerable to new risks, but a stranglehold can stifle progress and result in unwanted consequences. Regulations need to keep up and, fortunately, there are options for flexible approaches.

1. DEREGULATE BASED ON DATA AND RESPOND BASED ON RISK Regulations are generally created in response to market conditions or an event that highlights regulatory gaps. Months and years can go into drafting and, once in place, are rarely readjusted, even as circumstances change. But what if a data-driven, risk-based approach can be implemented so that businesses can go through a predictable process based on providing key information to its regulators?

2. CREATE SANDBOXES FOR INTEGRITY AND OUTCOMEBASED SOLUTIONS

Compliance and enforcement is necessary for regulatory frameworks, but also assumes that threats are necessary for positive outcomes. Most people make bad choices, however, not because they are bad people, but because the right thing can be hard to do. It can be too expensive, time-consuming, confusing, or any number of other reasons.

One way that regulators can remove barriers for doing the right thing is to shift the focus to outcomes instead of prescriptive requirements. For example, a requirement that an amusement ride “must not exceed 15 km per hour” will be complied with differently than a requirement that the ride “must not be operated in a way that endangers the passenger.” Enabling industry to develop guidelines for approval within a “sandbox” of safe experimentation allows for freedom and innovation in meeting regulatory objectives.

3. SIMPLIFY, HARMONIZE, AND COLLABORATE

Instead of costly and false positive exercises to detect problematic players, regulators can focus on understanding and predicting issues before they arise. Based on analyzed data, risks, and expected outcomes, businesses can provide the information needed to accelerate through regulatory processes, which ultimately benefits the public through faster access to better products.

Regulations impact every aspect of our lives, including the food we eat, the energy we consume, and the transportation that we use. But few individuals report regulations that are easy to understand and navigate. It almost goes without saying that where regulations are needed, the goal should be to avoid undue restrictions and support a simple, consistent legal environment. After all, we would not want to one day be a history lesson in being up to our eyeballs in – manure.

Lisa

Picotte-Li is Legal Counsel at Technical Safety BC, a provincial regulator. The views are those of the author.

feature

ODR: An Environmental Alternative

Four ways the CRT is doing more, by doing less

“We’re in a giant car heading towards a brick wall and everyone’s arguing over where they’re going to sit.” David Suzuki’s words aren’t a comment on the state of our justice system, but they are a plea to get on with acting to save our planet. And the BC Civil Resolution Tribunal (“CRT”) is doing just that.

In the three years since its inception, the CRT has helped British Columbians to resolve almost 10,000 strata property and small claims disputes. The CRT’s online dispute resolution (“ODR”) model, fully integrated into the public justice system, has caught international attention. This isn’t surprising – the CRT is expanding access to justice, making efficient use of public resources, and at the same time, helping to reduce the justice system’s environmental impact. Here are four ways ODR is better for the environment than the traditional justice system.

1. LESS TRAVEL

Is access to justice a service, or a place? The traditional court model requires judges, lawyers, clerks, sheriffs and litigants to all congregate at physical court locations, often for multiple days. In contrast, the CRT is based online. It has no locations that a party has to attend, and 50% of CRT employees work from home. In 2016, transportation accounted for 28.3% of Canada’s greenhouse emissions. The CRT also makes it possible for people to get in-person help at one of 62 pre-existing Service BC

locations, without having to travel far from their homes.

2. LESS POLLUTION

The average passenger vehicle emits about 404 grams of CO2 per mile, and people who work in offices use coffee cups, take-out food containers, plastic cups and straws, which end up in landfills. The CRT currently has 13 full-time tribunal members and approximately 20 staff who work entirely remotely. The number of tribunal members is expected to grow to 85 over the next two years. ODR allows parties and staff to access the CRT from wherever they like. By working from home, the amount of plastic waste generated by staff is significantly decreased.

other tribunals. Since the CRT took jurisdiction over small claims disputes under $5,000, it has diverted approximately 30% of the Provincial Court small claims caseload –about 9500 disputes since 2017.1 And it’s handling these disputes at a fraction of the energy usage.

4. LESS PAPER

CRT disputes are almost entirely paper free. The CRT accommodates people who prefer to use paper, but under 1% of CRT participants have chosen to participate in the CRT process through paper. Most parties file their initiating documents online,

We’re in a giant car heading towards a brick wall and everyone’s arguing over where they’re going to sit.

3. LESS ENERGY

BC has 44 full-time and 44 parttime Provincial Court locations. Naturally, it takes a lot of energy to power and heat these buildings. The CRT has one modest office in Victoria, and its two employees in Vancouver share office space with

and upload their evidence and submissions into the CRT’s cloudbased portal. In some disputes, this can be hundreds of pages of evidence and submissions that are not printed. Compare this to the traditional justice system which requires multiple copies of each document to be printed.

The CRT model is sustainable in more ways than one. Not only is it better for the environment, but it is a world leader in delivering efficient, affordable, and accessible access to justice.

1 This is partially offset by an estimated 1,700 CRT orders filed with the Provincial Court for enforcement.

LAURYN KERR AND TEMITAYO OSINBAJO

Lauryn Kerr is Legal Counsel at the Civil Resolution Tribunal. Temitayo Osinbajo is a third-year law student at Osgoode Hall. Social Media: @civrestribunal

nothingofficial

TONY WILSON, QC

I Wish to Apologize (Sort of)

The non-apology apology as an art form

Collective nouns like a murder of crows, a gaggle of geese, a parliament of owls, a troupe of baboons (and a Klan of Trump supporters?) can also be applied to nationalities. Apparently, a flock/heard/gaggle or pod of Canadians is called an “apology” of Canadians. Who knew?

The worst apology I ever received in a law office was from a senior lawyer 30 or more years ago, who snapped abruptly about some obscure statute he expected I knew about. He apologized to me later “for making him so angry” (his exact words). Like “I’m sorry you feel that way,” this is what is now called a “non-apology apology”; something that has become an art form in legal and political circles of late. It’s a milquetoast apology that makes a sincere apology meaningless.

I want to get on this non-apologyapology bandwagon and sort of apologize for a few things that I have done or said, which I sometimes regret, but mostly don’t.

I have occasionally turned my sprinklers on during “non-watering hours” in part because the city wrecked the boulevard in front of my house so that virtually nothing grows (including my lawn), and in part because it’s Vancouver and it will always rain buckets and flood my basement come November. However, I’ve been told that using my sprinklers during non-authorized hours is evil, morally wrong, and that I am the enemy of the people. Thus, I deeply and humbly apologize for my occasional over-sprinkling. Mind you, that

doesn’t mean I’m going to stop. In the world of lawn watering, I play the odds and will pay the fine if it comes to that. In the world of apologies, I’m sorry if you’re upset.

I’m sorry, but when I’m traveling on the BC Ferries to Salt Spring, I will take an extra mustard package with my hot dog so that I have some emergency condiments on my boat “just in case.” Likewise, I get confused at food fairs by the existence of 15 separate bins in which to separate my garbage, so I leave my tray on the table. I’m sorry food fair operators have made my life more complicated.

When I am away from the office on holidays, I sometimes keep my “out of office” message on my computer and on my phone for a few extra days after my return so that I can “catch up,” and so that my clients don’t think I’m back in the office yet. For that, I apologize. But I’m going to keep doing it.

My wife and I were in New York recently to see a few plays. After Bryan Cranston’s “Network” was over, pictures of American presidents were shown on large screens throughout the theatre as people were leaving. When Donald Trump’s picture was shown, most of the audience booed loudly. Instead of booing (which seemed uncouth and un-Canadian), I screamed “Russian Traitor” and scared the woman next to me. I apologize for startling her.

I like fireworks on Canada Day, Halloween and the annual “Celebration of Light” in English Bay. A friend said that fireworks celebrations should be banned province-wide because they scared her doggies. I rolled my eyes and said that when dogs could vote, we could have a referendum, but until then, a few dogs (and their owners) shouldn’t ruin the enjoyment of the majority of humans who enjoy fireworks; especially when I have to navigate around dog poop on my front lawn and listen to them bark at night. I humbly apologize for rolling my eyes.

Maybe we should create a national holiday called “Apology Day” where Canadians can apologize to each other in our offices, in shops, or even on the street for things that we did, might have done, or which we might one day do or say that someone could conceivably think is dastardly, wicked, unpleasant, disagreeable, distasteful, villainous, politically incorrect, heinous or in some way nasty and therefore deserving of an apology, (notwithstanding our free speech Charter rights).

Or, perhaps we could just stop apologizing so damn much?

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.

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

Upcoming Conference

CBABC Wills & Estates Conference 2019: Tackling Challenging Issues in Estate Law

Back by popular demand, the CBABC Wills & Trusts regional Sections from Vancouver, Victoria and the Okanagan have come together to bring you an intermediate to advanced sixhour CPD approved program at the Manteo Resort Waterfront Hotel in Kelowna on September 20-21, 2019. Dedicated to wills and estate practitioners, join us to exchange views with fellow practitioners on current practice issues in a relaxed and congenial setting.

File cover – do not destroy! Kicking off the conference on Friday evening, Edward F. Macaulay, Barbara Janzen and Rebecca Morse will lead a panel discussion on what a solicitor’s file should contain and what is cited to be missing far too often from such files. Following this thoughtful conversation, Stan Rule will close the night with a light-hearted look at the big and small factoids of wills and estates by hosting a trivia led group session.

Wondering what exactly medical records are saying about capacity? Kick off day-two on Saturday morning by hearing from Dr. Kenneth Shulman, Sunnybrook Hospital, who is an expert on capacity evaluation and the MiniMental State Examination and the Montreal Cognitive Assessment tests. Dr. Shulman will discuss what you should know about

assessing testamentary capacity. Following this exchange, Former Master William McCallum, will lead a discussion on how to prepare your accounting documentation so that it’s ready for court – passing of accounts. Rounding up these morning sessions as we lead into the afternoon, Theresa Arsenault, QC, Fiona Hunter and Michelle Isaak will tackle the questions of what multiple wills are and when you should use them. Discussions will focus on courts navigating the Indigenous estate system, wills from other jurisdictions, local wills dealing with foreign assets, and the interplay with conflicts law.

With courts and practitioners grappling with what it means to be a “spouse,” Jacy J. Wingson, QC Amy Mortimore and Tara Britnell will lead a practitioners’ forum where attendees will be invited to participate in identifying trends, debating approaches, and exploring potential methodologies which may assist in determining who is a “spouse.”

practitioners from across BC. After the sessions conclude Saturday afternoon, stay for an extra night so that you can join everyone Saturday evening for a wine tour of four local Okanagan wineries led by Okanagan Country Wine Tours. After the tour, attendees are invited to a three-course dinner prepared by renowned in-house chefs at the Summerhill Pyramid Winery Organic Bistro, which features the best regional ingredients sourced from their own biodynamic gardens and local organic farmers.

*These are optional activities that you may choose to register for separately at the time of registration.

When asked about what aspect of the conference was of most valuable to them, a past participant commented, “networking in a relaxed atmosphere over a day and a half was effective. I thought it really built on the collegiality of what is already a great Bar. The topics were different and interesting.”

Don’t delay, register today!

Date: September 20-21, 2019

RSVP: September 9, 2019

This conference would not be complete without an opportunity to make meaningful connections by networking with estates

Location: Manteo Resort

Waterfront Hotel, Kelowna, BC Conference Link: bit.ly/ bt0819p30-1

barmoves

Who’s Moving Where and When

Paul Bowes joined Harper Grey LLP as associate counsel with their Business Law group. Paul was called to the BC Bar in 1983.

Victor Harwardt joined Harper Grey LLP as associate counsel with their Business Law group. Victor was called to the BC Bar in 1984.

Raman Atwal joined Miller Thomson’s Vancouver office as an associate in the Litigation group. Raman’s practice focuses on commercial and construction litigation.

Navnit Duhra joined Miller Titerle + Company’s Business Law and Transactions group. Navnit practices in the areas of banking, real estate and corporate commercial law.

Vita Dos Santos joined Miller Thomson’s Vancouver office as an associate in the Business Law group, with a focus on intellectual property and technology.

Steven Meng joined MLT Aikins LLP as an associate lawyer in the firm’s Vancouver office following his 2019 call to the BC Bar. Steven joins the firm’s Corporate Finance and Securities group.

Alizeh Virani

joined MLT Aikins LLP as an associate lawyer in the firm’s Vancouver office following her 2019 call to the BC Bar. Alizeh maintains a general employment and civil litigation practice.

David Overall joined Miller Thomson’s Vancouver office as an associate in the Business Law group.

Sabrina Anis joined Miller Thomson’s Vancouver office as an associate in the Labour & Employment Law group.

Russell Allsup joined Edwards Kenny & Bray LLP as an associate. He has a broad civil litigation practice and provides clients with well-researched, effective, and practical solutions when facing complex legal challenges.

Bar Moves 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 bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1908

Lucy Schilling

joined Miller Thomson’s Vancouver office as a partner in the Capital Markets & Securities group.

newmembers

May & June 2019

Lawyers

Sophie Bartholomew MacLean Law

Vancouver

Gavin Clark

Whitelaw Twining Law Corp.

Vancouver

Joseph Corriero Lofranco Corriero Personal Injury Lawyers

Anna P. Moore

Kornfeld LLP

Vancouver

Kiana Moradi

Digby Leigh & Company

North Vancouver

Lazaros R. Morfidis

Virgin Hickman

Vancouver

Kieran Morris

Morris Law

Vancouver

Kathryn Gullason

joined Miller Thomson’s Vancouver office as an associate in the Litigation group.

Connor Levy joined Miller Titerle + Company Employment Law group. Connor practices in the areas of labour, employment, privacy, human rights, and workers’ compensation matters.

Kaitlin Pierce

joined Hammerberg Lawyers LLP as an associate. Kaitlin’s practice focuses on Estate Litigation, Personal Injury and Business Law.

Kevin Sorochan

joined MLT Aikins LLP as senior counsel in their Vancouver office. He advises clients on capital markets & securities matters, M&A, corporate reorganizations, corporate governance and financing.

Surrey

Christina DaSilva ICBC

Vancouver

Vaneet Dhaliwal MTC Law

Surrey

Stewart B. Elworthy Goluboff & Mazzei

West Vancouver

Alexander J. Freedman

JFK Law Corporation

Vancouver

Karen Gardiner

Dunnaway, Jackson, Ouellet & Associates

Vancouver

Chad M. Gerson

Lindsay Kenney LLP

Langley

Shayla Hardy Dentons Canada LLP

Vancouver

Jennifer A. Hau

Campbell Froh May & Rice LLP

Richmond

Zoe Hutchinson

Borden Ladner Gervais LLP

Vancouver

Alexandra Madden

Clark Wilson LLP

Vancouver

Jessica Magonet

Arvay Finlay LLP

Vancouver

Kristina Mansveld

Borden Ladner Gervais LLP

Vancouver

Xiuwen (Vincent)

Ouyang

The Cao Law Corporation

Vancouver

Shelley A. Quinte

Pearlman Lindholm

Victoria

Hamir Randhawa Randhawa Minhas LLP

Surrey

Samson Rapley

ICBC

New Westminster

Arshveer Samra

Arshveer Samra Law Corp.

Surrey

Chelsea Scheuer

Farris Vaughan Wills & Murphy LLP

Vancouver

Rosie Schlagintweit

McMillan LLP

Vancouver

Kellie Scott

ICBC

Vancouver

Justina Sebastiampillai

Gall Legge Grant Zwack LLP

Vancouver

Daniel Song

Pringle Chivers Sparks Teskey

Vancouver

Haley Sonne

BTM Lawyers LLP Port

Moody

Danielle M. Young

Quadra Legal Centre

Victoria

To view all new members, please visit cbabc.org/bt/nm_1908

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