BarTalk December 2024 | Paying it Forward - Giving Back

DECEMBER 2024 | bartalkonline.org

So Long Tony Wilson PAYING IT FORWARD — GIVING BACK

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Paying it Forward — Giving Back Features 6

Columns

Giving Back Through Pro Bono Work Chyanne Sharma

9

DECEMBER 2024 Volume 36 | Number 6

From the President

4

Advancing Public Interest Litigation Together Connor Bildfell

10

Joined a Non-Profit Board of Directors?

Chief Executive Officer

5

Pivot’s Unique Approach to Legal Practice Pivot Legal Society

16

18

Indigenous Matters

Transforming Justice Through Indigenous Laws and Kinship kelsie kilawna

23

Workers’ Compensation for the Digital Platform Worker Alejandra Henao Harco Nothing Official

30

All Good Things Tony Wilson, KC

A Plea for Volunteering Craig Stewart

20

Guest Column

28

Centering the Client and Serving the Missing Middle Jamie Maclaren, KC

BarTalk Enters the Modern Era Kerry L. Simmons, KC

Marian K. Brown 12

Rebutting the Punchlines Lee M.G. Nevens

From the Branch 2

Professional Development

8

Advocacy in Action

14

SectionTalk

Walking the Intervenor Tightrope Kate Feeney

24

The Best of Intentions: Raising Funds for Specific Purposes Elizabeth Moxham

25

Pro Bono: A Win-Win Proposition Heather Wojcik

27

Lawyers May Claim CPD Hours for Pro Bono Work The Law Society of British Columbia

From the Community Courthouse Libraries BC

11

19

How Courthouse Libraries BC Serves Those Who Serve

Editorial Committee John Caldwell Jamie Fikeris

Brandon Hastings Eryn J. Jackson

Lindsay N. Morgan Lisa Picotte-Li

Miranda Wardman

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FROM THE PRESIDENT LEE M.G. NEVENS

Rebutting the Punchlines

C

BABC is a memberbased organization — we are nothing without our members.

One of the goals of my presidency is to ensure members feel empowered within the Association and appreciated for their efforts. This is particularly important given that all those efforts are done on a volunteer basis.

When I speak with leaders and policy makers on behalf of the association, I often emphasise that our recommendations are based on the experiences and expertise of our members, who are on the front lines of our justice system across the province.

Providing your insights — be it in a ThoughtExchange, on a committee or Section Executive, in BarTalk, or as a panellist — is an important form of volunteering that helps keep the association strong and our recommendations on point.

Contrary to the punchlines of many lawyer jokes, the majority of lawyers are incredibly generous with their time. Through the CBABC, providing pro bono legal services, mentorship, or other work, lawyers in B.C. collectively donate thousands of hours of their time each year. These efforts are often motivated by a commitment to the principles that drew us to the profession to begin with, such as a sense of justice, the right to legal representation, and the desire to use our skills for the greater good.

Volunteering and pro bono work are not, of course, purely altruistic, nor need they be to be laudable. There are many well-known career benefits, including gaining experience in 4 BARTALK / DECEMBER 2024

new practice areas, skills building, and developing your professional network. There are also many personal benefits that are often overlooked, most notably for mental health and wellness.

While it may seem paradoxical in an era of intense time pressures, volunteering has been shown to improve mental health. I see this happen in several ways within the legal profession.

Our practices are often narrower than our interests and passions.

Volunteering is a way to help and connect with different clients, to pursue interests outside of our practice areas, and to work toward change at the system and policy level that’s beyond the scope of our day jobs.

If you’re looking for places to dedicate your time, here are some excellent options I recommend within the CBABC: Help build community and know-

ledge sharing in your practice area by joining a Section Executive.

Help lawyers struggling with an

issue in your area of law by becoming a practice coach.

Help law students and junior lawyers find their path in the legal profession by becoming a mentor.

Help educate the profession by speaking on panels in PD and Sections programing.

Contribute

to CBABC submissions to government, the regulator, and the courts by volunteering for committees.

Help guide the CBABC’s work by

Contrary to the punchlines of many lawyer jokes, the majority of lawyers are incredibly generous with their time.

Despite these efforts taking up precious time, they can improve satisfaction with our day jobs because they align with our best sense of ourselves and, often, our original motivations for picking this career path. Feeling meaning and connection with your work can reduce stress and anxiety.

running for Provincial Council.

Quickly provide input to inform

our work by filling out a ThoughtExchange.

All that said, sometimes the most radical thing you can do is rest.

Many of us feel a lot of pressure to do something because we can. Having a sense of responsibility that is chronically in overdrive can quickly lead to burn out, which hurts everyone.

Maintaining your own wellbeing is the first step in helping others. So remember to pause, my friends.

Lee M.G. Nevens

president@cbabc.org

CHIEF EXECUTIVE OFFICER KERRY L. SIMMONS, KC

BarTalk Enters the Modern Era

I

f our weekly screentime notifications are anything to go by, you’ll know we’re consuming more and more content on our phones, laptops or iPads.

Whether we’re in between the courthouse, networking lunches, or the office, it’s no secret lawyers are busy.

We want content that is easy to read and right at our fingertips. Content that is thought-provoking and substantive but also keeps us on top of the latest information.

magazine, and this December is our last flippable PDF. Going forward, you will be able to consume BarTalk in an easy to read, easy to share, blog.

The popular choice for magazines over the last decade is to make the move from print to digital. It’s better for the reader. More interactive and engaging, more videos and more visuals. And let’s not forget the paper that gets saved from not printing!

From a monotone printout to a full colour 32page magazine, BarTalk has gone through many design iterations over the years. This latest change coincides with the fact that three long-term BarTalk contributors all retire within months of each other.

You can probably tell where this is going. Next year, BarTalk is going fully digital. June was our last printed

We said goodbye to long-standing columnist David Bilinsky in August.

This issue we thank Tony Wilson, KC

It’s an exciting move for the magazine, if you think about its humble beginnings back in 1989. Back then, BarTalk was the Branch’s sixth attempt at a newsletter, born to keep the membership better informed.

Over thirty years and 200 issues later, that objective remains true!

for entertaining us with his unique and thought-provoking perspectives published in his column, Nothing Official, since 2003. It’s likely we’ll still hear from Tony from time to time, but for now, we wish him a well-earned and vibrant retirement.

Seeing us through this transition before her retirement is editor Deb Carfrae.

Steering the ship since 2005, Deb is the person behind the scenes laying out each issue, coordinating volunteers, staff and their articles, making sure we all hit our deadlines.

BarTalk is a way to build your reputation and make your voice heard. If you would like to write an article, share your experience and establish your voice in the legal community, I encourage you contact Deb at bartalk@ cbabc.org. Otherwise, we’ll see you online at cbabc.org/BarTalk.

Kerry L. Simmons, KC

ksimmons@cbabc.org

BARTALK HISTORY February 1989

August 1994

August 2009

August 2014

June 2024

First BarTalk

David Bilinsky’s first PracticeTalk column

Our first fullcolour redesign

First online issue

Last BarTalk print issue

December 2017

February 2025

First Indigenous Matters column

BarTalk moves fully digital

August 2003 Tony Wilson, KC’s first Nothing Official column

February 2004 Bar Moves first appearance

DECEMBER 2024 / BARTALK 5

feature

CHYANNE SHARMA

Giving Back Through Pro Bono Work THE PRO BONO WORK I DO AS A LAWYER?

A

s a family lawyer, one of the most meaningful aspects of my career is incorporating pro bono work to support individuals who might otherwise struggle to access legal representation. Pro bono work is an important component in helping close the “access to justice” gap, particularly for those experiencing financial barriers. Through my volunteer work, I aim to guide people through the complexities of the legal system, especially in family law matters that have a profound impact on their lives. This commitment to pro bono work complements my broader practice, where I strive to make family law support accessible and equitable.

MY ROLE WITH ACCESS PRO BONO

One of the ways I engage in pro bono work is through volunteering with Access Pro Bono, a non-profit organization dedicated to providing free legal advice and representation to low-income individuals in British Columbia. I began volunteering with Access Pro Bono as an articling student in 2021 and have proudly continued to support their mission as my career has progressed.

In this role, I primarily assist individuals facing family law issues, such as divorce, parenting time, parental responsibilities, family violence and property division. Navigating these issues can be challenging, especially 6 BARTALK / DECEMBER 2024

for those who cannot afford legal representation. Through this work, I am able to offer guidance and support to people going through these situations, helping them understand their rights, options, and how best to proceed.

WHY PRO BONO WORK MATTERS

Each family law matter comes with its own unique set of challenges, and not everyone has the resources to access the help they need. The stakes are often high — decisions in these cases can have long-term effects not just for the individuals but for their families as well. Through my volunteer work, I am able to provide support and legal advice to those who might otherwise go without it, empowering them to make informed decisions for their future.

However, access to justice extends beyond individual cases — it is a broader social issue that affects everyone. When people cannot resolve legal issues, it creates stress and uncertainty that ripples through families and communities. By offering my time and skills, I’m contributing to a more equitable legal system, one where everyone has the opportunity to access help when they need it most.

COLLABORATING WITH THE LEGAL COMMUNITY

In addition to my volunteer work with Access Pro Bono, I am also

an executive member of CBABC’s Unbundled Legal Services Section.

The Section is dedicated to developing resources and services that increase accessibility to legal help.

Unbundled legal services allow clients to choose specific tasks they need help with, rather than retaining a lawyer for full representation.

This flexible approach offers a more affordable alternative for individuals who may not need full legal representation but still require guidance through key parts of their case.

WHY I ENCOURAGE OTHER LAWYERS TO GET INVOLVED

Pro bono work may not solve every issue, but it can make a meaningful difference in the lives of individuals and families. By volunteering, lawyers can use their skills and experience to support those who need it most while gaining a deeper understanding of the diverse challenges people encounter in the legal system. I encourage other lawyers to find ways to give back, whether through pro bono work or other forms of community involvement.

My work with Access Pro Bono and the CBA has been a rewarding part of my career, reminding me of why I became a lawyer in the first place: to help people navigate difficult situations and find fair resolutions. Pro bono work has a significant impact on individuals, families, and the community as a whole — and it’s an experience I’m grateful to be part of.

Chyanne Sharma, family lawyer at Crossroads Law, volunteers to help individuals navigate legal challenges through accessible pro bono support.

Linkedin: Crossroads Law and Chyanne Sharma Facebook: Crossroads Law Instagram: Crossroadslaw

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DECEMBER 2024 / BARTALK 7

advocacyinaction Protecting an Independent Bar Regulation of the profession is experiencing an unprecedented move to the unknown. At the Canadian Bar Association, we’re here to represent your interests and help you navigate change. Over the summer and after much consultation, the CBA National Board authorized an application for leave to intervene in the Law Society of BC’s challenge to the constitutionality of the Legal Professions Act. The B.C. government’s Legal Professions Act, which brings lawyers, notaries and paralegals under a single regulator, passed in May despite multiple calls to allow lawyers and the public more time to provide feedback. The legislation calls for a slim one-lawyer majority to the regulator’s 17-person board. Four of nine lawyers would be appointed rather than elected.

CBABC supports a single regulator model only if the independence of lawyers from government and self-regulation is maintained. This legislation fails in that regard.

CBABC supports some aspects of the legislation, such as the creation of an Indigenous Council.

However, fundamental flaws should have been addressed before it was passed.

When the Law Society of BC confirmed plans to move forward with litigation, CBABC took steps to initiate the CBA Intervention Policy protocol.

\ EMAIL: ADVOCACY@CBABC.ORG

Lawyers from McCarthy Tétrault, Connor Bildfell, Michael Feder, KC and Lindsay Frame, have been retained as counsel. We expect the application for leave to intervene will be heard this fall and the main hearing to be scheduled for 2025. Chief Justice Skolrood has been appointed as the Case Management Judge.

The CBA intervenes when doing so would constitute a significant contribution and would avoid restating arguments already advanced by the parties. CBA believes it is appropriate to intervene when it advances a position that is consistent with its policies or has broad-based support throughout the CBA. Since this single regulator concept was introduced in 2022, CBABC has been engaged on behalf of our members — we delivered written submissions, held member consultations and met with the Law Society, the Attorney General and ministry representative. After the legislation was introduced, we held further consultation and information sessions and met with BC First Nations Justice Council representatives.

We will continue with these efforts to make sure that regulation of lawyers makes sense and does not negatively impact our ability to provide legal services to the public.

To follow updates, visit cbabc.org/regulation.

The transition to a new single regulator advances. Transitional bodies have been appointed to work with the Law Society, the Notaries Society and other partners on the implementation of the Act. These include a board, an Indigenous council and an advisory committee. It is anticipated the transition process will take 18-24 months.

8 BARTALK / DECEMBER 2024

feature

CONNOR BILDFELL

Advancing Public Interest Litigation Together

Non-Profits and Firms Working in Partnership

P

artnerships between nonprofit legal organizations and law firms can be powerful tools for advancing public interest litigation. These partnerships can harness the distinct and complementary strengths of each partner and amplify their collective ability to advance the rights and interests of affected individuals and communities. This article describes the nature and benefits of these partnerships and some recent examples of these partnerships in action.

HARNESSING COMPLEMENTARY STRENGTHS

Driven by a mission to serve marginalized communities and promote social justice, non-profit legal organizations are often at the forefront of public interest litigation. These organizations often have deep-rooted expertise in specialized areas of law and close relationships with affected communities. This gives them a unique perspective on the challenges these communities face and how to advance their rights and interests.

Law firms are also important players in public interest litigation. Law firms of any size — from sole practitioner firms to large firms — can contribute their litigation experience, advocacy skills, and research capabilities to advance the rights and interests of affected individuals and communities through public interest litigation. These experiences, skills, and capabilities can be invaluable

assets that complement the on-theground experience and expertise of non-profit legal organizations.

Collaborative partnerships between non-profit legal organizations and law firms can be powerful tools for advancing public interest litigation. These partnerships can harness the distinct and complementary strengths of the organizations to create a dynamic and wellrounded litigation team.

But the benefits of these partnerships extend well beyond the courtroom. By joining forces, these organizations can leverage their respective strengths and abilities to influence policy reform, raise public awareness, and promote social change.

Moreover, these partnerships can promote professional development.

Lawyers from law firms can gain firsthand experience in public interest litigation and learn about social justice issues from those on the front lines.

And lawyers from non-profit organizations can enhance their litigation skills and develop lasting relationships with lawyers in private practice.

In these partnerships, everybody wins.

Columbia (Attorney General). This ongoing public interest litigation challenges B.C. laws that permit physicians to detain involuntary patients for treatment without their consent.

The litigation team for Council of Canadians with Disabilities brings together organizations committed to advancing the rights and interests of people with mental disabilities. These organizations include Community Legal Assistance Society, a non-profit legal aid society that, since 1977, has provided legal services to people who have been involuntarily detained under the B.C. Mental Health Act, and McCarthy Tétrault LLP. Another recent example is the partnership between counsel for the Centre for Family Equity (formerly known as the Single Mothers’ Alliance) in Single Mothers’ Alliance of BC Society v. British Columbia. This public interest litigation challenged the constitutionality of the legislative scheme authorizing and determining British Columbia’s family law legal aid regime. The litigation team included Monique Pongracic-Speier, KC and lawyers from West Coast LEAF, who devoted countless hours to the litigation. Their efforts recently resulted in a landmark settlement that includes a $29 million legal aid expansion for people experiencing family violence.

RECENT EXAMPLES OF PARTNERSHIPS IN ACTION

These partnerships illustrate how collaboration between non-profit legal organizations and law firms of all sizes can advance the rights and interests of marginalized groups through public interest litigation.

One recent example of this kind of partnership in action is Council of Canadians with Disabilities v. British

Connor Bildfell is a litigation associate at McCarthy Tétrault LLP. The views expressed in this article, and any errors, are his own.

DECEMBER 2024 / BARTALK 9

feature

MARIAN K. BROWN

Joined a Non-Profit Board of Directors?

What are your legal duties and limits?

O

rganizations welcome lawyers as board directors, and we want to provide value — but directors have duties, and our professional status has implications.

All board directors have a fundamental fiduciary duty to act in the best interests of the organization. Further, the British Columbia Societies Act s. 53 requires directors to “exercise the care, diligence, and skill that a reasonably prudent individual would exercise in comparable circumstances;” to comply with the Act, the regulations, and the society bylaws; and to act for the society’s particular purposes — without displacing common-law duties interpreted in the law of both societies and business corporations.

While successful actions for a nonprofit director’s breach of fiduciary duty are uncommon, a board member who is a lawyer will feel particularly responsible. Section 63 of the Societies Act provides that other directors have complied with their s. 53 duties if they relied upon “a written report of a lawyer, accountant, engineer, appraiser or other person whose profession lends credibility to a statement made by that person,” or upon “a statement of fact represented... by another director... to be correct.” And in corporate law, a director may have the standard of care of a person with the knowledge and experience of that director — potentially engaging legal expertise.

10 BARTALK / DECEMBER 2024

As a basis for acting in the best interests of the organization, any director should: read all distributed materials and

participate in meetings; ensure compliance with the organ-

ization’s constitution, bylaws, governing statute, and regulatory requirements; ensure

accurate minutes, membership records, financial statements, and tax returns;

monitor performance

of the chief executive using best human resource practices; and refer the board to legal education

for nonprofits (such as Pacific Legal Education for the Arts).

A director’s fiduciary duty requires loyalty to the organization, with the keystone of avoiding actual or apparent conflicts of interest. For a lawyer who is a director, this implies that usually one should not provide advice (legal services) to a board of which one is a member. The potential conflicts of interest are outlined in commentary to the LSBC Code of Professional Conduct, s. 3.4-1 (while referring to corporate directors), and in Victoria and District Cricket Association v. West Coast Cricket Organization, 2024 BCSC 65 at [91-207].

Upon appointment to a board, and in minutes of meetings, it is prudent to state that one cannot provide legal advice. Other board members may be unaware that a lawyer’s avoidance of conflicts is broader than their own duty to avoid conflicting financial transactions. Consider also that “informal” legal advice provided in the course of board discussions likely will not be privileged and will not be insured.

However, boards will benefit from our legal skills if we draft or edit standard policies and resolutions, explain uncontested legal language and potential legal processes, indicate when to consider retaining counsel, and assist in communicating with counsel (best done in the company of the board chair or executive committee).

It is not uncommon for lawyers, being riskaverse, to dissent from board decisions or even to resign from a board when other directors interpret their duties less rigorously. For example, a board, pursuant to provisions of the Societies Act, may decide to “waive” (approve) a director’s financial conflict of interest, but a lawyer may view that as contrary to the organization’s best interests. Resignation doesn’t always relieve one of potential liability, but ones’ fiduciary duty may be served by clearly (and kindly) informing the board of concerns, and by suggesting educational resources or engagement of counsel.

Directors’ liability for torts, debts, employment deductions, and taxes is beyond the scope of this brief note.

Marian K. Brown serves on the board of the BC Law Institute, and has practised criminal law for over 25 years.

LinkedIn: Marian Brown

communitynews

TIPS FROM

How Courthouse Libraries BC Serves Those Who Serve

Courthouse Libraries BC is committed to supporting lawyers who dedicate themselves to pro bono and legal aid work. Through our Lawbster platform (lawbster.net), we support a specialized community of practice called the Family Law Organizer (FLO). Comprising volunteer family lawyers, paralegals, mediators, and other professionals who serve in this area, FLO serves as a collaborative hub to provide critical support for legal aid and pro bono practitioners especially. FLO members benefit from forums, free webinars, and a library of shared precedents, all designed to lighten the load for those providing essential legal services.

We’re also proud of our legal publishing initiatives, such as Clicklaw Wikibooks, which are strengthened by the efforts of volunteer authors and editors. Volunteers can easily claim CPD credit through the Law Society of BC Member Portal, making it convenient to contribute expertise while advancing professional development.

As a registered charity, Courthouse Libraries BC relies mostly on our regular funding partners, but sometimes on donations to sustain specific work. We also support low-bono family law services through initiatives like the BC Family Lawyer Unbundling Roster, offering lower-cost legal options to families in need.

Lawyers dedicated to access to justice can explore our free training opportunities at courthouselibrary.ca for the latest CPD offerings designed for you.

DECEMBER 2024 / BARTALK 11

feature

PIVOT LEGAL SOCIETY

Pivot’s Unique Approach to Legal Practice

A

t Pivot Legal Society, we practice a nontraditional style of legal work, informed by the principles of movement lawyering, strategic litigation, and community organizing traditions.

Founded in 2001 in Vancouver’s Downtown Eastside, our organization’s work focuses on the intersecting legal regimes of drug prohibition, housing precarity, sex workers’ rights, policing and criminalization, and stigma against people marginalized because of their social condition.

Our work supports the expertise and power of people directly impacted by the colonial laws and legal systems we work within, and attempts to redistribute power, knowledge, and resources toward those historically excluded from legal institutions such as lawmaking and decision-making bodies.

Pivot works to support movement-led strategies to decriminalize sex work; end the prohibition on drugs; root out social, structural, and legal sources of stigma; and ensure that there is adequate and accessible housing for all. We work directly with and alongside community members to: increase

community analysis and understanding of the current colonial legal system as well as their rights within that system;

share strategies, tools, and resour-

ces about how to engage with and navigate legal processes and government systems;

deeply listen to, collect, and convey

communities’ lived experience with harmful laws to institutions operating within the legal system; and

12 BARTALK / DECEMBER 2024

ensure that community’s lived ex-

perience perspectives are actively and meaningfully involved in addressing harms and shaping equityoriented laws and policies.

We also strategically use colonial legal system tools, such as litigation or legal complaints, to challenge harmful laws and policies. This may include defending individuals and groups drawn into legal proceedings through injunctions and other state actions, or working alongside community members impacted by the colonial legal system to bring their wisdom and experience into legal processes.

Our style of practice necessarily responds to the daily reality of individual and organizational clients who face racism, state repression, economic and social marginalization, and justified skepticism about law as a tool for change. We know that colonial court and legal systems were not set up to support accessibility and transparency for people experiencing multiple overlapping and amplifying exclusions and harms. As a result, the way we develop arguments, collect evidence, and navigate court hearings can raise unique challenges.

For example, we develop arguments by first seeking to deeply understand the perspectives and approaches of our clients, instead of turning to precedent and trying to “educate” or “demystify” the law for our clients. Our arguments focus on reflecting the lived realities and needs of our clients, within a legal framework. This demands a large

investment of time, building trust and creating relationships.

As another example, collecting evidence is frequently challenging, as many of our clients and affiants don’t have regular access to a phone or the internet, don’t have a fixed place to stay because of the housing crisis, experience overlapping health crises, and may be regularly detained or jailed by law enforcement.

Navigating court hearings is a particular challenge in our practice. We try to ensure our clients have an opportunity to witness the process in as traumainformed a way as possible, with trusted navigators providing information, debriefing and supports inside and outside of the courtroom.

Necessarily, we approach our legal work with creativity and humility, knowing legal tools are only one part of broader movements for change.

Some recent examples of our work include: convening

a panel about the impacts of gendered and racialized policing and criminalization on Black sex workers;

intervening at the Supreme Court of

Canada in a case related to policing at drug overdoses; filing

a police policy complaint about the excessive and discriminatory use of force at protests related to Palestinian rights.

To learn more about their work, visit Pivot Legal Society, and to support their practice, please visit Donate — Pivot Legal Society.

Twitter: pivotlegal Instagram: pivotlegal LinkedIn: pivot-legal-society Facebook: PivotLegalSociety TikTok: @pivotlegalsociety

sidebar Boutique Firm? Bespoke Benefits

It’s official: lawyers are trending.

According to the Government of Canada’s Official Job Bank, there will be an estimated 40,000 new job openings for lawyers in the next decade. If you’re among the reported 84% of legal recruiters who’ve had difficulty filling current positions,1 you might want to start thinking about the little things you can do to make your firm stand out. Two surefire ways to attract Canada’s best and brightest legal brains are by offering a comprehensive benefits package and a pension plan, or even up-sizing your existing perks.

Traditionally, these types of benefits were only available at scale — leaving smaller firms out. Lawyers Financial sponsors a defined benefit pension plan for incorporated solo practitioners all the way up to firms of 100+ employees and an employee benefits plan that allow firms of anywhere from 3-20 employees access to the type of program usually reserved for their larger counterparts.

Where to start? Here’s what to consider when choosing a strategy that’s both comprehensive and specific to the needs of your team.

UNPACKING THE BENEFITS PACKAGE The foundation of an employee attraction and retention strategy includes retirement savings, life insurance, disability insurance, and an extended healthcare plan that covers dental cleanings, eyeglasses, and paramedical services like massage therapy. These are the kinds of things most job seekers in the legal market will expect from an employer — and for good reason. Insurance gives your employees peace of mind that sudden medical or personal events won’t interfere with their financial stability. Retirement savings plans (either in the form of a pension or a group RRSP) help establish a solid foundation for your employees’ future. By providing these programs, you’re alleviating some of the stress that can keep people from bringing their best selves to work.

PROTECTING THE PROFESSION One-size-fits-all benefits packages often work for no one. That’s why it makes sense to partner with a team of experts who understand the specific needs of lawyers.

Retirement age is one example.

Since many lawyers don’t retire at 65 like most Canadians, your staff will be glad to know that there’s no age cap on Lawyers Financial extended healthcare benefits. Your team is covered for as long as they’re employed.

We also understand that for many, being a lawyer isn’t just what you do, it’s who you are. And for those whose profession is infused with their passion, it’s important to find a disability insurance policy that understands the gravity of what it would mean to no longer be able to work. With the disability insurance portion of your

Lawyers Financial employee benefits plan, eligible lawyers and notaries may receive benefits up to age 65 if they’re unable to practice law, even if they can work in another profession.

INNOVATE TO YOUR ADVANTAGE Sounds so far like a whole lot of paperwork? You’ll be happy to hear that when it comes to the kind of perks that’ll make your firm stand out among prospective hires, it’s not all about insurance policies and savings plans. With recent pushes to advocate for mental healthcare and work/life balance within the legal profession, Canadian law firms are increasingly invested in the mental well-being of their workforce. This means that initiatives like hybrid work schedules and self-funded wellness plans are gaining in popularity. Get creative.

From flexible hours to bringing your pets to the office, what would you need to be the most focused and motivated version of yourself?

WE CAN HELP Talk to a team of experts about an employee attraction and retention strategy that can grow with your firm. Ask a group account manager about a plan that will reward your team and respect your budget. And ask a pension specialist about a defined benefit pension plan that’s guaranteed for life.

BOOK AN EMPLOYEE BENEFITS MEETING BOOK A PENSION MEETING Source: 1. Canadian Lawyer Magazine, “Legal labour market still tight with more demand for contract workers, finds recruiter survey,” March 8, 2023.

DECEMBER 2024 / BARTALK 13

SPONSORED CONTENT

SPONSORED CONTENT

How to attract the best team and keep them happy

sectiontalk Appointing a Children’s Lawyer in B.C. Lawyers who practice family law know the important role a children’s lawyer plays in high-conflict family cases. As the child’s advocate, a children’s lawyer ensures that a child’s voice is heard and considered in court proceedings.

Many provinces in Canada have legislation that provides for the appointment of a children’s lawyer in family law proceedings.

In British Columbia, section 203 of the Family Law Act 1 is the authority for appointing a children’s lawyer. Under this provision, there is no presumption that it entitles a child to legal representation in a family law proceeding. In fact, British Columbia is the only province in Canada where a children’s lawyer is only appointed if the conflict between parties is so severe they cannot act in the child’s best interests.

In this article, we address three concerns with this threshold test and make recommendations for change. Amending section 203 is important, as children’s views often get lost in adversarial legal processes. Having a legal representative for a child can improve their well-being, protect and promote their legal rights and give them a voice.

CURRENT ISSUES WITH SECTION 203 First, under section 203, a party who wishes to obtain a lawyer

14 BARTALK / DECEMBER 2024

for their child must establish that the parties are not able to act in their own child’s best interest. The obvious flaw in this requirement is that most parents would be reluctant to present evidence that demonstrates an inability to act in their child’s best interest.

Moreover, requiring parties to bring forward evidence about the level of conflict between themselves and the other party only inflames conflict further.

Second, the focus is on the parents’ level of conflict rather than the best interests of the child.

This runs contrary to the spirit and intent of family law legislation and jurisprudence in British Columbia, specifically that the best interests of a child are paramount above all other considerations. There are a multitude of reasons why a children’s lawyer should be appointed in a family law proceeding that are not related to the parties’ level of conflict.

The court’s primary consideration should be whether appointing counsel is necessary to protect a child’s legal interests. Families are complex, as are family files that warrant a children’s lawyer’s involvement. For example, parties may suffer from substance misuse and be unable to act in the best interests of a child. In this case, parties might not conflict with one

another, thus failing to meet the threshold test under section 203.

Third, section 203 as currently drafted severely limits the likelihood that the court will order or appoint legal representation for children in proceedings, even when the court determines it would be in the child’s best interests to have representation.

The language of section 203 limits judicial discretion by requiring the court to find that conflict is so severe it is impacting the parties’ ability to act in their child’s best interests.

SUGGESTED CHANGES The threshold to determine whether a children’s lawyer should be appointed in a family law proceeding should not depend on the level of conflict between the parties involved.

Section 203 should be amended to entirely remove any reference to conflict and, instead, to mirror language in other provinces such as the Yukon, Alberta, Ontario, Quebec and Prince Edward Island.

These changes would give the judiciary greater discretion in determining whether to appoint a children’s lawyer in a family law proceeding, if they find it to be in the child’s interests.

1

Family Law Act, SBC 2011, c 25, s 203.

Written by Kendra Hewson, Lindsay Kenney & Michael Zimmerman on behalf of CBABC’s Children’s Law Section Executive.

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DECEMBER 2024 / BARTALK 15

feature

JAMIE MACLAREN, KC

Centering the Client and Serving the Missing Middle Access Pro Bono innovates to bridge the justice gap

T

he organized delivery of pro bono legal services is a supplyand-demand challenge where the demand for help is essentially limitless. The access to justice crisis is expanding at such a rate in British Columbia that the growing need for pro bono legal services is critical and unending. Here, as elsewhere, and despite significant advances in the usefulness of artificial intelligence, more and more people are lining up for the chance to receive free legal counsel. Last year, Access Pro Bono (APB) heard from over 60,000 low- and modest-income British Columbians in desperate need of a volunteer lawyer’s help.

Luckily, APB has a supply of about 2,700 volunteer lawyers — an impressive testament to how much B.C. lawyers care about increasing access to justice in their communities. This level of community care makes APB the largest legal service provider in the province, and one of the largest pro bono organizations in the world. Still, the organization’s supply of volunteer lawyers is not nearly enough to meet the civil and family legal needs of British Columbians who come calling.

Faced with this service deficit, APB could be excused for prioritizing the interests of its volunteer base to 16 BARTALK / DECEMBER 2024

broaden its capacity to bridge more of the yawning justice gap. Yet the organization’s primary objective is instead to serve British Columbians according to their legal needs, and to meet them wherever “they are at.” It strives to deliver fast and effective services based on the diversity of needs and experiences of all of its many clients.

CENTERING THE CLIENT APB is an enthusiastic proponent of this type of client-centred service.

The organization subscribes to principles of human-centred design, evidence-based analysis, collaboration,

The Canadian Rental Housing Index reported that 16% of B.C. renters spend more than 50% of their income to cover rent and utilities — putting them at high risk of homelessness. Yet few renters qualify for free legal services. and innovation in all aspects of its service design and delivery. It applies Access to Justice BC’s Triple Aim Framework to its program development, with its three core pursuits of better user outcomes, better user experiences, and lower system costs.

But client-centred service demands a lot of attention. It begins with a fundamental concern for the client experience, and requires service providers like APB to identify the problems (legal and non-legal) that clients encounter in a system, to clarify their needs and goals, and then to take an experimental and iterative approach to solving their problems.

The main challenge of client-centred service is responding to client needs that are forever changing.

Non-profit legal service providers must be adaptive and creative in how they identify and meet the emergent legal needs of diverse cultural and geographic communities.

This often means being more innovative and risk-tolerant in service design, and abandoning conventional dichotomies like the provision of pro bono or full-rate service depending on a threshold analysis of client means.

THE MISSING MIDDLE Most British Columbians fall somewhere in the justice gap where they earn too much income to qualify for legal aid or pro bono legal services, but also cannot afford to pay legal fees at full market rates. As a consequence, most British Columbians encounter profound challenges in accessing critical legal services when they need them. These challenges often contribute to adverse legal outcomes like the loss of child custody, eviction from the family home, and missing out on severance for wrongful termination.

APB is one of several lawyer incubators, non-profit law firms, legal aid programs, and other organizations in the United States and Canada that are working together as the Above

the Line Network (ATLN), with the collective mission to provide greater access to justice to the vastly underserved market of modest- and middle-income earners. ATLN also advocates for changes to judicial, legal, and regulatory systems that promise to transform how legal services are delivered to people with unmet legal needs.

As the operator of many pro bono programs and its high-volume Lawyer Referral Service, APB is in a unique position in B.C. to match cost-effective service to the high demand for free or affordable civil and family services. Depending on where a client’s income falls along a sliding scale, they are routed to pro bono or reduced-rate legal services. APB receives about 5,000 requests for legal help each month, and the organization has something to offer everyone.

EVERYONE LEGAL CLINIC Speaking of everyone, the Everyone Legal Clinic is APB’s international award-winning public interest law training clinic and incubator, and its first foray into reducedrate or “low bono” legal services.

Its mission is to increase access to justice for all British Columbians by way of low-cost and fixed-fee services, while also increasing the diversity and legal aid capacity of B.C.’s legal profession.

The Clinic creates new articling opportunities for law graduates from diverse and underrepresented backgrounds, supports the nascent practices of communityminded lawyers, and increases access to affordable legal services for modest- and middle-income British Columbians residing in rural

and remote parts of the province.

Over its three years of operations, the Clinic has engaged 20 supervising lawyers in overseeing the training and virtual practice of 49 articling clinicians.

Several Clinic alumni have opened legal aid practices in underserved B.C. communities. Other alumni have opened solo and small-firm practices providing legal aid and low-cost legal services in places like Kimberley, Burns Lake, Golden and Vancouver’s Downtown Eastside. The Clinic’s greatest success has perhaps been preparing each of its alumni to adapt with confidence to the changing nature of B.C.’s legal marketplace, and to find or invent their own role in meeting client needs as newly licensed lawyers.

ADAPTING TO EMERGENT NEEDS The Clinic has also been inventing new roles to better meet client needs, particularly in the underserved area of tenancy law. Among Canadian provinces, B.C. has the highest proportion of renters spending more than half of their income on rent and utilities. Last year, the Canadian Rental Housing Index reported that 16% of B.C. renters spend more than 50% of their income to cover rent and utilities — putting them at high risk of homelessness. Yet few renters qualify for free legal services from B.C. nonprofit organizations, and fewer ever receive legal counsel when they need it. They too fall in the justice gap.

Without increasing its supply of legal counsel versed in tenancy law, APB is

only able to assist about a third of the renters who seek its free legal help. To better meet demand, the organization is training and deploying articling clinicians to deliver free tenancy law services on a type of internal legal aid tariff. Facilitated by a grant from the provincial government, this new tariff-based program assists vulnerable tenants to assert their tenancy rights in various ways, from contesting unlawful evictions and rent increases, to recovering security deposits and compensation for repairs.

By creating this new stream of free legal assistance and representation, APB expects to keep hundreds of British Columbians securely housed during the current housing crisis.

The new program also serves to raise the guaranteed baseline income for articling clinicians, which is something the Clinic has struggled to do without much in the way of institutional funding.

MORE HELP WANTED However much APB innovates to better serve the missing middle, pro bono service remains its core mandate. It’s in the organization’s name, after all. And it could use more help — serving the unmet legal needs of British Columbians requires all hands on deck. To that end, APB is holding a recruitment drive for volunteer lawyers in early 2025. It invites all B.C. lawyers to join in the gratifying experience of serving individual and community legal needs, with the greater aim of ensuring access to justice for all.

Jamie Maclaren, KC (he/him), Executive Director, Access Pro Bono.

DECEMBER 2024 / BARTALK 17

feature

CRAIG STEWART

organization if there are no funds to cover a sustainable administration.

A Plea for Volunteering

A

ccording to Vantage Point’s June 2024 report on the state of the non-profit sector in BC, Under Pressure (the “Report”), there are close to 33,019 charities and nonprofit organizations in the province representing 360,000 jobs and contributing $30 billion to our economy in the reported year, 2022.

And yet, of course, this substantial piece of our economy — distinguished by its various missions, mandates, and good intentions — is forever facing uncertainty and scrutiny. How do they spend their money? What exactly is their purpose? The current trends, according to the Report, appear to be updated variations on abiding themes, and they are concerning.

I imagine you understand the importance of the sector if you are reading this issue of BarTalk.

Their missions and mandates are key.

Since their goal is not maximizing profit for shareholders, what is their collective mission? I would argue that they respond to need most of all, including for legal services, and what these organizations learn can better inform our institutions.

The Report outlines the current struggles in the sector, including, of course, the impacts of inflation on everything. Climate change is having an impact: extreme weather events prompt “an increase in need for supports and services, from cooling and heating centres to 18 BARTALK / DECEMBER 2024

emergency spaces such as evacuation centres.” People seem to be volunteering and donating less. While government funding has remained relatively stable according to participant organizations included in the Report, the funding reporting requirements have become increasingly onerous. Demand for services has increased but so has the cost of living and housing for workers.

It has long been a trend in the non-profit sector that funding is uncertain and diversification of revenue streams has been a goal. It has also long been a trend that donors want to imagine that every cent they give a charity goes to exactly the program or impact they want to see — indeed, as a one-time fund developer, I thought of my role as offering donors the opportunity to make an impact in the world, not

82% of Canadians donated to a charity circa 2013, but that went down to 60% in 2023. Volunteerism has not recovered to pre-pandemic levels. soliciting for pocket change. And yet the costs of administration, of strategic planning in uncertain times, of increased reporting to funders, are also foundational. There is no

The Report’s authors stress this is an acute moment in time, despite the continuity of the general trends: “It is imperative to pause and consider that while BC’s non-profits appear to be stable in capacity, the sector is stretched to its limits.”

82% of Canadians donated to a charity in 2013, but this dropped to 60% in 2023. Volunteerism has not recovered to pre-pandemic levels.

Volunteering is not simply transactional, as work too often is.

Naturally, volunteering may look good on a CV or indicate to a prospective employer that one is “well-rounded” or enjoys “giving back.”

Yet the motive to volunteer is a bit intangible.

It is dialogic and social: one asks, “How can I help?” The currency is not money, it is a sense of connection to others with a common purpose. And that can give people a sense of meaning.

Volunteering, being the person you are, using the skills and education you have, is a restorative and human thing to do in the face of AI and the reduction of everything to data.

Asking how we may help (without reward) shakes us loose of equivocations, abstractions, meaninglessness — gets us on our feet and shows us community and smaller, more intimate worlds where everyone is important and has a part to play.

We all know organizations, legal or otherwise, that rely on volunteers and struggle to find them. I wonder if we can change this statistic?

Craig Stewart is an associate lawyer at CR Lawyers LLP with some volunteer experience.

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NEW CLEBC BOARD OF DIRECTORS The Continuing Legal Education Society of British Columbia (CLEBC) is proud to welcome three new members to its Board of Directors.

Kate Gunn joins as Vancouver County Representative. A partner at First Peoples Law LLP, Kate is renowned for her advocacy on behalf of First Nations and Indigenous groups across Canada. She specializes in protecting and advancing constitutionally protected Indigenous rights and Treaty rights. Kate also co-authors Indigenous Peoples and the Law in Canada: Cases and Commentary and holds an LLM from UBC, where she teaches as an adjunct professor.

Call: 1-888-385-4466 | Visit: progroupbc.ca

Victoria Faculty of Law, Sarah’s research focuses on Indigenous legal traditions, Aboriginal law, and human rights. She has contributed to nation building and recognition of Indigenous rights across Canada and internationally.

Lisa Martz, UBC Allard Representative, brings over 25 years of litigation experience. After practising at McCarthy Tétrault LLP and Gudmundseth Mickelson LLP, she now teaches at UBC. Lisa specializes in dispute resolution, advocacy and legal ethics, and supervises UBC’s Judicial Externship program.

CLEBC is excited to benefit from the knowledge and expertise these new directors bring to the Board.

View CLEBC’s current Board of Directors here.

Dr. Sarah Morales (Su-taxwiye) represents UVic Law. A member of the Cowichan Tribes and an Associate Professor at the University of

DECEMBER 2024 / BARTALK 19

Indigenousmatters

KELSIE KILAWNA

Transforming Justice Through Indigenous Laws and Kinship

How BCFNJC’s community-centered approach is redefining justice

I

n a room softly lit by the sun and the warm scent of cedar, an Elder leads a quiet prayer, creating a safe space for the client, a young Indigenous man caught in the cycle of the colonial justice system. Enveloped in understanding and respect, he is beginning a new journey of healing at an Indigenous Justice Centre (IJC) — a place where legal and cultural support come together to build a foundation of trust and healing through kinship.

For many Indigenous people, Canada’s justice system has long been a source of oppression and isolation. The BC First Nations Justice Council (BCFNJC) is committed to changing the justice system by providing unique wrap around services at Indigenous Justice Centres. These Centres offer more than legal advocacy — they offer kinship-based support rooted in community and healing.

“We’re doing things differently, outside the framework of a conventional law firm,” says Kirsten Barnes, Gitxsan, IJC Clinical Director. “Our approach isn’t just about seeing a client through a legal case; it’s about rebuilding connections and restoring balance. When we support a client, we support their family, community, and Nation. Justice in our Indigenous ways has always been connected to kinship.”

20 BARTALK / DECEMBER 2024

PHOTO: Strategy 4 of the BC First Nations Justice Strategy calls for a network of Indigenous Justice Centres in B.C. that provide culturally safe, welcoming places for Indigenous people to directly access culturally appropriate justice services, including legal advice and representation for criminal justice and child protection matters.

“We recognize that being alone in this work doesn’t create lasting change,” Kirsten continues. “Our lawyers are not only dedicated advocates that are here to support clients with their criminal and child protection matters, but they’re also part of a larger support network, which includes Gladue writers, outreach and support workers, kinship mentors and Elders. It’s a model that provides both practical legal solutions and a path forward that is anchored in community.”

A NEW MODEL FOR COMMUNITY-LED JUSTICE This client-centered, kinship-based approach is unique to BCFNJC and requires the involvement of a dedicated, innovative team.

Kory Wilson, Kwakwaka’wakw, BCFNJC Council Chair, emphasizes that Indigenous legal values form the core of their work. “Our laws aren’t just written rules; they are part of our identities, traditions and who we are as Indigenous people.

For example, restorative justice is foundational for the Justice Council,” Kory explains. “By incorporating community and culture into our process, we are ensuring that justice is something that uplifts rather than isolates.”

Kory notes that BCFNJC’s programs are built on the principle that healing and justice should not be separate and balance pursued.

Through programs like restorative justice circles, Gladue reporting, and diversion initiatives, IJC staff help clients reconnect with their communities. “The work we do supports people in reclaiming their place within their community and helps them find their way back to their culture, language, and family,” Kory adds. “Our clients have a place in our communities and in our lives.

BCFNJC is here to ensure they do not have to go through this process alone and that Nations can reclaim their kin in the way that fits each Nations protocols.”

THE VALUE OF HEARTCENTERED LAWYERING At the heart of BCFNJC’s approach is the belief that every lawyer, Gladue writer, and kinship mentor plays a unique role in their clients’ lives. “We’re a team of lawyers who understand that this work goes beyond the courtroom,” Kirsten says. “It’s about giving clients a pathway back to their families and communities.”

The team has created a new model of law, one that integrates cultural safety and understanding as essential elements of justice. “The work is life-changing not only for clients but also for the staff who walk alongside them,” Kirsten says.

“When our clients strengthen their connection to self, it strengthens their families and communities, rippling through generations.”

For BCFNJC staff, serving clients as kin — whose journey of healing involves a full team effort, from legal advocacy to mentorship and cultural guidance — means breaking cycles of trauma and bringing Indigenous peoples’ self-determination.

“Our work is a partnership with each Nation,” Kory adds. “It’s justice that grows from our histories and our communities, honouring our responsibilities to each other.”

This approach reflects a deep commitment to doing justice differently — one that requires people who are willing to join a model built on kinship, integrity and communityled support.

“We need our people to come home.

Our land calls us back, our families depend on us, and we have a sacred duty to uphold. We will stand firm and remain committed to our relational responsibilities we hold for one another, as human beings connected to these lands,” says Kory.

Contribute to the empowering work that is being advanced by our current IJCs in Kelowna, Merritt, Prince George, Prince Rupert, Chilliwack, Vancouver, Victoria, Nanaimo, Surrey, Kelowna, and the IJCs set to open this December in Kamloops, Williams Lake, Burns Lake, Hazelton, Port Hardy and Cranbrook. Please view a full list of opportunities here.

We gratefully acknowledge the financial support of the Province of British Columbia through the Ministry of Attorney General.

ABOUT THE BCFNJC The BCFNJC was created by the BC Assembly of First Nations, the First Nations Summit, and the Union of BC Indian Chiefs who together form the First Nations Leadership Council (FNLC). BCFNJC represents BC First Nations on justicerelated issues to bring about transformative change to the legal system.

BCFNJC is guided by the unique and comprehensive BC First Nations Justice Strategy (the Strategy) which was jointly developed by the BC First Nations Justice Council, BC First Nations communities and the Province of British Columbia.

The Strategy advances 25 individual strategies along two tracks of change: reforming the current criminal justice system and restoring Indigenous justice systems, legal traditions and structures.

Today, BCFNJC is a dynamic, expanding non-profit organization that is making a powerful, enduring mark on the justice landscape.

Guided by the vision and voices of Indigenous leadership, including our Elders and Knowledge Keepers, we employ over 150 people with diverse professional, cultural, and community expertise who are working hard to implement the Justice Strategy and advance Indigenous self-determination over justice. With the direction and support of First Nations communities, work will continue to transform the mainstream colonial justice system and champion innovative, Indigenous-led justice solutions. Visit Tracking Justice for more information.

Written by kelsie kilawna, a traumainformed storyteller and advocate for culturally safe Indigenous narratives.

DECEMBER 2024 / BARTALK 21

communitynews Updating the Pension Division Q+A Resource BCLI is currently developing a new edition of the Questions and Answers about Pension Division on the Breakdown of a Relationship in British Columbia. This definitive guide is a trusted resource for navigating the legal issues that arise when a spousal relationship breaks down and the family property is to be divided, including benefits in a pension plan. For nearly 30 years, it has assisted family lawyers, pension administrators, actuaries, and separating spouses by helping them navigate the provisions of the Family Law Act and the Pension Benefits Standards Act. First published in 1996, the Q+A has gone through four editions, with the latest version published in March 2017. Since its last edition in 2017, numerous amendments have been made to both the Family Law Act and the Pension Benefits Standards Act. The update will incorporate recent changes in the law to ensure an accurate and relevant resource for practitioners. This includes the May 2023 passage of Bill 17 to amend Part 6 of the Family Law Act. The Pension Division Questions and Answers 5th Edition is expected to be released in summer 2025. For more information and future updates on this project, please visit the BCLI website at bcli.org/update-pension-2024.

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feature

KATE FEENEY

Walking the Intervenor Tightrope West Coast LEAF on intervening before the Supreme Court of Canada

I

nterveners before the Supreme Court of Canada (SCC or the Court) take on an important yet delicate task. Their role is to bring a unique and helpful perspective to the issues before the Court without introducing new legal issues or supplementing the evidentiary record. Seeking leave to intervene can thus require strategic choices about whether and how to press at the edges of an appeal.

Both the promise and perils of intervention are readily apparent when interveners make submissions about the social context of an appeal, including the prevalence of systemic discrimination. Such interventions have contributed to the development of the law to better reflect and account for social realities, though there is still a long way to go. However, they also run up against the prohibition on expanding the scope of the appeal, especially where they invite the Court to consider lived experiences and structural harms that are not well captured by the appeal record or existing case law.

West Coast LEAF is part of a rich tradition of Supreme Court of Canada interveners who navigate these tensions while advocating on behalf of equality-seeking groups. For more than a decade, West Coast LEAF has been intervening before the SCC, as well as before British Columbia’s courts and tribunals, to address the impacts of the law on the substantive equality of people who experience gender-based discrimination. Our mandate means that we cannot shy

away from situating legal issues within their gendered social context, even where this context was not squarely raised by the parties to the litigation.

Instead, we see our efforts to contextualize appeals as integral to our feminist perspective on how the law should develop and be understood. While the impacts of our intervention work can be difficult to measure, the SCC has repeatedly affirmed the relevance of social context to questions of law. Further, it has a long history of taking up equality considerations raised by interveners, including in its recent family law decisions Michel v. Graydon, 2020 SCC 24, Colucci v. Colucci, 2021 SCC 24, and Barendregt v. Grebliunas, 2022 SCC 22.

As West Coast LEAF’s understanding of the intersectional dimensions of substantive gender equality has evolved, so too has our approach to intervention. In crafting our submissions, we now consider the ways in which a gendered social context encompasses multiple and intersecting axes of marginalization, including Indigeneity, race, immigration status, disability, sexual orientation, gender identity, age, and socioeconomic status. However, we must also remain mindful of our ability to breathe life into an intersectional legal analysis without supplementing the evidentiary record. We continue

to grapple with questions of how to raise intersectional experiences without allowing the constraints on our role to flatten or distort them.

West Coast LEAF’s approach to intervention also reflects an evolving understanding of our responsibilities toward our communities. Given our privileged voice within the legal system, it is incumbent upon us that we do not make assumptions about the interests or experiences of those most affected by gender-based discrimination. It is equally important that in avoiding this misstep, we do not render their lives overly abstract.

Our most effective advocacy is therefore communityengaged advocacy.

Achieving this goal, however, is a long-term process. West Coast LEAF’s legal team is actively working to build and deepen our relationships with our community members, including through participating in grassroots advocacy coalitions. We are also prioritizing joint interventions with frontline organizations that bring an “on-the-ground” perspective to our submissions.

Intervening before the SCC often feels like walking on a tight rope, and finding the right balance can be elusive. However, West Coast LEAF remains committed to making the law more alive to lived realities one 10-page factum and 5-minute submission at a time.

Kate Feeney (she/her) is the Director of Litigation at West Coast LEAF, a gender justice organization located on the ancestral and unceded homelands of the xʷməθkʷəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and səlilwətaɬ (Tsleil-Waututh) Nations.

Twitter: @WestCoast_LEAF Instagram: @WestCoastLEAF LinkedIn: West Coast LEAF (Legal Education and Action Fund) DECEMBER 2024 / BARTALK 23

feature ELIZABETH MOXHAM

The Best of Intentions: Raising Funds for Specific Purposes

Legal implications of fundraising campaigns

Y

ou’ve received charitable solicitations, both directly to your doorstep and indirectly through the media.

Often it is clear that the fundraising is for the general charitable purposes of the charity to use as they decide.

More often, though, to grab our attention and encourage us to open our wallets, a charity solicits donations for a specific project or an urgent need: construction of a new building, research into a rare and intractable disease, summer camp for kids with cancer, the immediate needs of a community dealing with the devastating impacts of fire or flood.

When the language of a fundraising campaign is razor-focused on a specific project, the charity may have unwittingly created a restricted charitable purpose trust.

ordinarily able to approve changes to the purpose only if it is impossible (not at all possible) or impracticable (practically impossible) to carry out the original purpose, and such changes must be as near as possible to the original purpose.

Recent case law1 affirms this restrictive law.

The Boys and Girls Club of Victoria wanted to sell a camp property that had become underutilized and no longer cost efficient to run or maintain, and it wanted to use the resources to support its more popular non-camp programs that were oversubscribed with waiting lists.

The terms of a charitable donation are fixed at the time it is given.

Without a charity reserving rights to alter a restricted purpose if it can’t be carried out or is no longer in its best interests to carry out, the charity cannot unilaterally do so, and it must persuade a judge to approve an amendment to the purpose. Going to court to solve these problems is time-consuming, expensive, and the outcome may not be what a charity hoped for.

The property was built with funds raised through a public campaign beginning 20 years ago for the specific purpose of the camp, and maintained with an endowment fund for the same purpose. The court considered the fundraising materials as relevant to the determination of whether the funds were held as specific charitable purpose trusts. The materials described clear purposes for the property and a vision for the funds raised, but had no reference to the charity’s general charitable purposes2.

The law by which courts are bound is very restrictive. A court is

The court rejected the Boys and Girls Club’s requests. Their budgetary

24 BARTALK / DECEMBER 2024

concerns were not sufficient reasons to sell the property, and the proposed use of the proceeds was not as close as possible to the original purpose.

There are important policy reasons behind this law. It protects donors’ charitable directions, and it ensures gifts are used for the purpose given.

However, in some cases, this leads to harsh outcomes for charities: having to use funds in ways that are no longer in their best interests nor their highest needs. Charities, as an important part of a benevolent society, need to be able to respond to the changing needs of the constituencies they serve and act in the best interests of their charitable objects.

In light of the current law, it is important that charities implement best practices for fundraising: materials that are sufficiently broadly worded to retain flexibility to address unexpected and unanticipated situations, or that explain what they will do if they can’t use all the funds they raise for the discrete and specific purpose for which they appear to be campaigning; appropriate gift agreements; and policies that support these.

These safeguards are as important for temporary singular activities as they are for endowments and other long-term use property.

Boys and Girls Club of Greater Victoria Foundation v British Columbia (Attorney General), 2024 BCSC 442 (CanLII).

2 Stet, paragraph 8.

1

Elizabeth Moxham, legal counsel at UBC since 2012, specializes in charitable law.

Email: Elizabeth.moxham@ubc.ca LinkedIn: Liz Moxham, X: @elizabethmoxham

feature

HEATHER WOJCIK

Pro Bono: A Win-Win Proposition

How pro bono all-stars encourage engagement

P

ro bono work isn’t just a noble endeavor — it’s a powerful investment in a law firm’s future.

While free legal services help bridge the justice gap for those in need, the benefits for law firms are just as compelling. Pro bono can strengthen a firm’s reputation, attract socially conscious legal talent, and sharpen young lawyers’ advocacy skills beyond what billable work may offer. A robust pro bono program reflects a firm’s values and demonstrates its commitment to its lawyers and community.

To foster a culture where pro bono work is valued and prioritized, firms need to take intentional steps.

1. INSTITUTIONAL SUPPORT A pro bono culture starts with strong institutional support. Firms should implement policies that position pro bono work as integral to legal practice. “Our generous pro bono policy credits pro bono hours as billable hours for the purposes of billable targets and bonus consideration. There is no cap on the number of hours for which a lawyer can receive credit,” shares Grace Pastine, Pro Bono Counsel at Norton Rose Fulbright (NRF).

Similarly, Rebecca Levi, Associate Director of Professional Development and Marketing at Farris LLP, notes: “We have a policy that permits up to 100 non-billable hours annually to count towards bonus, and pro bono work qualifies for these hours, so there is additional incentive to do this work.”

2. MENTORSHIP Integrating mentorship into pro bono programs can enrich the experience for both junior and senior lawyers. At Farris, senior counsel mentor junior lawyers on pro bono cases, offering guidance and support.

Levi elaborates: “Our Access Pro Bono (APB) partnership allows our students and more junior lawyers to get handson experience running their own file from start to finish, which wouldn’t happen with standard ‘big firm’ clients at that stage.

We use more senior lawyers as supervisors to make sure the juniors and files are properly supported, which is also a great mentorship opportunity.”

3. DESIGNATE A PRO BONO CHAMPION Firms can ensure their pro bono programs are strategic and intentional by appointing a pro bono champion. Pastine shares how NRF pioneered this approach: “In 2023, we became the first, and remain the only, Canadian law firm to have a full-time dedicated legal counsel to direct our pro bono practice.” Pro bono champions, like Pastine and Levi, coordinate projects, liaise with lawyers, and build partnerships, ensuring pro bono work is embedded into their firm’s culture rather than an afterthought.

4. PARTNER WITH COMMUNITY ORGANIZATIONS Firms can maximize their impact by collaborating with local organizations. Levi emphasizes, “As a regional firm with a deep history in BC, it’s important for us to give where we live, and to support the community around us.” Partnerships with nonprofits like APB streamline the process for firms, as these organizations can handle initial case screenings for financial need or legal merit.

Pastine illustrates the power of these partnerships: “APB referred us a client who is a Squamish Nation elder who used her life retirement savings to purchase a tiny home.

She intended to live out her retirement years in the home in the Squamish Nation lands. However, the builder stole her money, failed to build the home, and left the client homeless and without her retirement savings. Our lawyers, led by associate Nathan Jones, have spent hundreds of hours vigilantly seeking to enforce a judgment against the defendants through a sale of their property, and recently succeeded in having the defendants declared vexatious litigants.” Cases like this one underscore how pro bono work not only changes lives but provides fulfilling professional experiences.

Building a pro bono culture requires intentional action. By implementing clear policies, fostering mentorship, appointing dedicated leaders, and partnering with community organizations, firms can create an environment where pro bono thrives. These strategies benefit lawyers, uplift communities, and promote equal justice.

Heather Wojcik is the Associate Executive Director of the Access Pro Bono Society of BC and a practising lawyer.

DECEMBER 2024 / BARTALK 25

communitynews Law Foundation Volunteers’ Roles in Reviewing Grants Legal professionals give back in many ways. Some offer pro bono legal services to help low-income communities with legal matters, while others lend their expertise to non-profits.

The Law Foundation of BC (LFBC) relies on community expertise to achieve its goals of strengthening access to justice, which includes advancing Indigenous law and justice initiatives. These efforts address the ongoing and systemic injustices Indigenous Peoples face within the legal system, that are a result of colonialism.

I began volunteering with the Law Foundation of BC as a grant reviewer on its Racial Justice Advisory Committee, where I learned about what it did to break down barriers that legal non-profits face when it comes to funding. Applicants may apply either in writing or an in-person presentation — a forward-thinking practice that allows them to play to their strengths.

Today, I’ve been on its Board of Governors for more than a year, and it’s been rewarding to see the progress made. I know that the Law Foundation’s impact is strengthened by the diverse expertise and experiences of its volunteers. I encourage you to explore our website to learn more about our strategic priorities and consider lending LFBC your expertise in the legal system as a grant reviewer or committee member.

Written by Karen Ameyaw — a Senior Prevention Advisor at the Workers’ Compensation Board of BC. She is a part-time adjudicator and previously worked as a litigator with a focus on insurance and construction law.

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26 BARTALK / DECEMBER 2024

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feature

THE LAW SOCIETY OF BRITISH COLUMBIA

Lawyers May Claim CPD Hours for Pro Bono Work

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eginning in December 2023, lawyers have been able to claim continuing professional development (CPD) credit for pro bono services provided to clients or non-profit organizations. So far, 298 lawyers have utilized this option and more are encouraged to consider using some of the 12 required CPD hours annually for pro bono work.

For the purposes of CPD, “pro bono legal services” means legal advice or services provided to persons of limited means or non-profit organizations without the expectation of a fee. Lawyers may claim one hour of CPD credit for each hour of pro bono legal services provided and credit is based on actual time spent providing legal services. The subject matter of all accredited learning modes must deal primarily with one or more of the topics listed on the CPD criteria page. Lawyers can record credits by logging into the Member Portal.

The Benchers’ decision to recognize pro bono as a learning opportunity stemmed from a 2022 report from the Access to Justice Advisory Committee, which stated that providing pro bono legal services supports the CPD program’s goal of achieving and maintaining professionalism. The report states, “[the committee] has recognized that

pro bono activity exposes lawyers to important professional development opportunities that are not always present in a paid retainer, including supporting an ethos of professionalism and giving back as professionals who hold a privileged place in society.”

The committee’s view was that pro bono work helps lawyers gain new perspectives on how to provide services effectively and consider issues such as income disparity, homelessness, addiction and mental health issues, and systemic barriers to equality of justice. From the intake and interview process, to triage and communicating with clients and finding solutions that are practical to the client’s needs, lawyers

have the opportunity to develop or hone different professional skills.

Lawyers who take on a pro bono file are required to treat it with all of the professional responsibility and obligations that adhere to a standard fee-for-service retainer.

The Law Society also supports pro bono in other ways. The Lawyers Indemnity Fund extends professional liability indemnification at no cost to retired, non-practising or indemnity-exempt lawyers for sanctioned pro bono legal services. The Law Society also provides funding to the Law Foundation of BC to support pro bono services and access to justice programs.

The Law Society has long recognized that the provision of pro bono legal services helps advance the public interest in the administration of justice and is an important tradition that contributes to what it means to be a legal professional. In 2017, the Benchers adopted a vision for how lawyers can improve access to justice and legal services, which included stating that “this privilege [of practising law] carries with it a duty to society for lawyers to find ways to make their services accessible and to promote access to justice. Lawyers, through provision of legal services, have always played an essential role in helping people achieve access to justice and must continue to do so.”

For more information on claiming CPD for pro bono legal services and other eligible activities, visit the Continuing Professional Development web page or contact cpd@lsbc.org.

DECEMBER 2024 / BARTALK 27

guest

ALEJANDRA HENAO HARCO

Workers’ Compensation for the Digital Platform Worker

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ffective September 3, 2024, app-based ridehailing and delivery service workers became “workers” under the Workers Compensation Act, RSBC 2019, c 1 (the “WCA”) and became entitled to benefits for work-related injuries. The provincial government also applied new Employment Standards Act, RSBC 1996, c 13 protections, such as minimum wage, per-km vehicle allowance, and pay transparency provisions to promote fair pay. These changes are a first in Canada, although Ontario is set to implement minimum wage requirements for digital platform workers on July 1, 2025. Some app-based employers shifted the increased operating costs to the consumer, adding a regulatory response fee to delivery orders. Other responsibilities can’t be transferred to the consumer. Creating a safety program, investigating workplace incidents, and managing workplace hazards fall on the employer.

Uber welcomes legally-able-to-drive applicants. Drivers who are deaf or hard of hearing can notify riders, ask them to manually input the destination, and turn off the call driver option. Complying with other vocational limitations and restrictions of a person with disabilities is a novel concept to the industry. The former WCA vocational rehabilitation scheme allowed employers to decline return-to-work arrangements to their injured workers. The Workers Compensation Amendment 28 BARTALK / DECEMBER 2024

Act (No. 2), 2022, (“Bill 41”) heightened employer obligations to reintegrate persons with disabilities in the workplace. The duty to cooperate is one of these changes, requiring employers to identify suitable work that, if possible, restores the worker’s wages.

Bill 41 also introduced the duty to maintain the employment of certain workers with an accepted injury claim.

This duty, also known as the duty to accommodate, applies, in part, to full or part-time workers employed continuously for at least 12 months before their injury. If a worker can carry out the essential duties of their pre-injury work, with or without accommodation, the employer must offer the worker their pre-injury position or alternate work with comparable duties and earnings. When a worker cannot return to their pre-injury position but can work in some capacity, the employer must offer them the first suitable work available and accommodate a worker to the point of undue hardship. Failure to do so may result in administrative penalties.

The duty to accommodate does not apply to a worker only because the person is deemed to be a “worker” under the WCA (s. 154.3 (2)(a)). Nor does it apply to employers, workers, or an industry or class of industries prescribed by the Lieutenant

Governor in Council. At this time, there are no exclusions by the Lieutenant Governor in Council and it is unclear whether this duty applies to digital platform workers.

Digital platform workers could be exempt from accommodation provisions. Or the arrangement between the parties is between a worker and an employer. A delivery person for an application-based food delivery service has been found to be like an employee in an independent contractor/ worker assessment with unique circumstances (Review Division decision dated January 27, 2022; R0282829 and R0282501). However, Review Division decisions are non-binding.

If the duty to maintain employment applies, app-based ride-hailing and delivery service employers will be faced with unique accommodation requirements previously handled by the independent contractor. Weight-bearing limitations are an example of a common functional restriction.

How would an app-based employer filter orders by weight if restaurants do not weigh orders? Would requiring restaurants to weigh orders cause undue hardship? Limited stair climbing is another common restriction. Would requiring app users to describe home access or meet the worker in an unrestricted location cause undue hardship? These are questions to be determined as digital platform worker laws take shape in a previously minimally regulated industry.

Alejandra Henao Harco is an employment associate at Lidstone & Company.

barmoves Who’s Moving Where and When

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/BARMOVES.

Nicole Garton

Matthew Ostrow

joined Lindsay Kenney LLP as senior counsel in their Family and Estate Planning and Litigation Practice groups.

joined Clark Wilson as a partner with their Family Law group.

Dennis Fitzpatrick

Sheldon Falk

joined Lindsay Kenney LLP as associate counsel in their Financial Services Practice group.

launched a sole practice law firm serving non-profit and charity clients at dogoodlaw.ca.

Nafeesa Valli-Hasham

Bao Nguyen

joined DLA Piper (Canada) LLP as a partner in their Capital Markets practice in Vancouver. She will be based in the Vancouver office.

joined Harper Grey as an associate with their Construction and Engineering and Environmental Regulation & Disputes groups. He received his J.D. from the University of Western Ontario.

Jonathan Fung

Kristian N. Arciaga

joined Clark Wilson as an associate with their Estates & Trusts and Estates & Trusts Opinions and Appeals groups.

has returned to Fasken as a partner in their Real Estate group.

He advises on a wide range of commercial real estate matters, including acquisitions, dispositions, leasing and development.

Ryan Lincoln joined Clark Wilson as an associate with their Tax group.

DECEMBER 2024 / BARTALK 29

nothingofficial TONY WILSON, KC

All Good Things

So long... and thanks for all the fish!

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ell, after almost 22 years, this is my last column for BarTalk. It’s time to retire.

Twenty-two years is a pretty good run for Nothing Official. Since 2003, I’ve written at least 129 columns in BarTalk. At approximately 650 words per column, that’s around 84,000 words. That doesn’t include the regular business and legal columns that I’ve written for the Globe and Mail and Canadian Lawyer over the past 15 years. Not bad for a Carleton University Journalism School dropout. It’s interesting that I had to become a lawyer before I could be a journalist!

Anyway, you may ask yourself, well, how did I get here? I’ll tell you.

Back in 2003, I was contacted by BarTalk’s then editor (the wonderful Sandra Webb), who happened to read an article that I published that very day in the Globe and Mail called “Confessions of a Former Keg Waiter.” It was a fun piece about my experiences slinging steaks at the Keg while I was putting myself through law school in Victoria.

She liked it so much she persuaded CBABC’s Executive Director at the time (the equally wonderful Caroline Nevin) that BarTalk needed a regular humour/opinion column to increase readership, and voilà: Nothing Official was born. (Well, that’s how I remember it.)

We called it “Nothing Official” to give me some leeway in the topics I could write about, and to give CBABC some credible deniability in case readers 30 BARTALK / DECEMBER 2024

didn’t like what I wrote. The column was meant to be entertaining and somewhat humorous — although, I do recall one of my colleagues emailing me some years later and asking me if my columns would ever become entertaining and somewhat humorous. Over time, Nothing Official gave me a much higher profile in the legal community than I otherwise would have had, which arguably led to me winning four Bencher elections between 2011 and 2017.

As a Bencher, I was very much involved in credentials, legal education and lawyer discipline matters, and it was a big jump from drafting franchise agreements as a solicitor to being a panelist on credentials and discipline tribunals and drafting legal decisions that could be (and in many cases were) the subject of review by the Court of Appeal.

Like Rumpole of the Bailey reminiscing about the Penge Bungalow murder trial of the 1950s being the high point of his professional career, perhaps one of the high points of mine was moving the motion that the Law Society conduct its own professionwide referendum on Trinity Western University’s proposed law school to break the impasse after a Special General Meeting resoundingly told the Benchers to pound sand. Although I knew what the outcome of the referendum would be, I wanted everyone in the profession to have the right

to vote on it, and lucky for me, the Supreme Court of Canada upheld the Law Society’s right to conduct its own referendum. But I would be remiss if I didn’t say that another high point was when one of my decisions was written up in Maclean’s magazine as a “gem of legal jurisprudence.” It was all about the use of the word “F**k” in a courthouse.

As well, my status as a Bencher directly led to an invitation to teach legal ethics at Thompson Rivers University Law School where I taught approximately 850 second year law students over the course of eight years and where I’m still an Adjunct Professor. I loved everything about teaching ethics to law students... except the marking.

All this “street cred” as a Bencher probably helped me to be in the right room at the right time with the right people and not so subtly suggest that B.C. wasn’t doing enough to help small business and needed franchise legislation to protect British Columbia franchisees (many of whom were new Canadians) from being routinely and savagely taken advantage of by US and Ontario-based franchisors. I ended up serving on a special committee advising government on the legislation that inevitably became law in 2017. Certainly, the legislation would have happened at some point in time, but I believe it happened when it did because my status as a

Bencher “put me in a room” that I otherwise wouldn’t have been in.

I suppose if you drill down the rabbit hole of my career, you could say that being a Law Society Bencher, teaching legal ethics at TRU Law, advising the provincial government on franchise legislation and getting a QC in 2016, were a consequence of the profile that I had developed by writing columns for BarTalk. And to think, all that started with an article I wrote in the Globe and Mail about being a waiter at the Keg before I was a lawyer!

It’s not the writing that takes time.

It’s the rewriting. Most of the time, the writing process could be agonizingly slow for me to “get it right.” I was always busy re-writing the pieces up to the deadline (including this one). “I love deadlines,” said Douglas Adams. “I like the whooshing sound they make as they fly by.” So I have to thank BarTalk’s Editor, Deb Carfrae, for putting up with me over the last 20 years. Deb understood my need to “get it right” and is one of the most thoughtful, understanding and patient persons I’ve ever dealt with. Thanks also go to CBABC’s Executive Director, Kerry Simmons, KC who ran interference with the Editorial Committee on a couple of occasions, supporting my rather strident opinion columns. Finally, thanks go to my wife, Mary-Jane Wilson, for letting me read my articles to her aloud before they were submitted, providing me with constructive criticism (which I occasionally accepted).

If there is one thing that I’ve always enjoyed, it’s when colleagues at the Bar (and even perfect strangers), emailed me about how they liked a particular article. Even at social events, lawyers and judges alike would recognize me and tell me that they really enjoyed some piece I had written. I’ll miss that.

Although some columns were very popular and went viral on social media,

I can’t say I have a particular favourite.

I enjoyed writing them all. Some people run marathons or engage in competitive birdwatching. I like writing opinion columns like this one. Although I hope to keep writing in the future, I’ll be taking up astrophotography, learning the theremin and the alpenhorn, and grandparenting during my retirement.

Oh, and more shark diving!

Other readers were less complimentary, particularly when I voiced my opinion about anti-vaxxers, antimaskers, and the so-called “freedom convoy” (which, with apologies to all the Karens out there, I called the “Karen Convoy,” the “Flu Klux Klan” and “Freedumb Fighters” in at least two of my articles.) Admittedly, I became more strident and opinionated over the past few years and much of my barbs were directed to those who propagated conspiracy theories — particularly, conspiracy theories about COVID-19. These are the people who still call the pandemic a “plandemic” and claim that the high death count was really a function of old age and comorbidities (i.e., “It wasn’t COVID that killed Granny... it was the hangnail.”). So my final words to the anti-vaxxers and their ilk are this: prove Anthony Fauci, Bonnie Henry, Theresa Tam and the rest of the scientific community were wrong without resorting to quackadoodle nonsense and go collect your Nobel Prize. Otherwise STFU. Whether it’s the flat earth movement (“Flerfers”), or those who believe the horse dewormer Ivermectin, zinc or bleach were treatments for COVID, or that the World Economic Forum is comprised of Evil Bond villains who will force us to eat bugs, or that vaccines inject microchips into your blood, or that Donald Trump is not a convicted felon and a rapist, but a godly man who really won the 2020 US election, rampant disinformation

that promotes conspiracy theories is the curse of the modern age. If I had to blame anyone, it would be the Russians and their “web brigades” for using social media to turn America against itself. Proof in point? Trump is back in office. Mr. Putin should be very happy.

Whether he’s called Vladamir Gluten, the Orange Cheeto or Napoleon Bone Spurs, the rest of the world (including Canada) will have to deal with Trump and his ideocracy. Maybe we should start actively promoting immigration to Canada for those Americans who are on Trump’s enemies list and who are “longing to be free.” You know, women who believe they own their bodies, teachers, scientists, librarians, journalists, and other proponents of freedom, civil society, the rule of law and sciencebased public policy. If the American experi­ment is over, Americans should be encouraged to come to Canada and make it their home.

Anyway, as a final point, I’ve been gently hinting for years that CLEBC underwrite the publication of “The Best of Nothing Official” for a book that could be given out to guest instructors and other volunteers instead of blankets and laptop bags (but not instead of umbrellas). Or maybe CBABC or the Law Society wants to underwrite a book and give it to newly called lawyers in addition to the Code of Professional Conduct.

So, there’s my pitch. Operators are not standing by and I’m not holding my breath.

For those of you who read my columns over the past two decades — thanks.

Tony Wilson, KC is a Vancouver Franchise Lawyer, a Life Bencher of the Law Society and an Adjunct Professor at TRU Law School, and as everyone should know by now, the opinions expressed in “Nothing Official” are his alone and do not reflect the views of the Law Society, the CBABC or their respective members.

DECEMBER 2024 / BARTALK 31

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