ELDER LAW | Advance Directives and Representation Agreements
F EB RUARY 2012 | www.cba.org/bc
The Power of Attorney Act Has Changed Page 12
LETTERS BarTalk Editor
Editorial Board Chair
Michael Welsh Editorial Board Members
Candice Alderson Carol Anne Finch-Noyes Richard Fyfe Sandra Harper Beverly MacLean Gail McKay Sarah Nelligan Clint Sadlemyer Rose Shawlee
2012 CBA Canadian Legal Conference
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BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at www.cba.org/bc. © Copyright the British Columbia Branch of the Canadian Bar Association 2012. This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel. The British Columbia Branch of the Canadian Bar Association represents more than 6,700 B.C. members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.
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www.cba.org/Vancouver2012 LETTER TO THE EDITOR
Power of Attorney
With the ever increasing and dismaying news stories of children abusing the use of their powers of attorney given to them by an elderly parent, it is time to stop this abuse. What is required is careful construction of the power of attorney. We read of cases where one child in the family designated to hold the power of attorney of the parent has cleaned out the elderly parent’s bank account, cases where the jewellery has been taken, furnishings sold and cases where a financial advisor has taken lifetime savings in investments for his own use. Legislation is needed to restrict the creation of powers of attorney sans legal advice. Lawyers working in this field can put the necessary protective restrictions on this delegation document. Banks can be held accountable
for ignoring the removal of all funds of an elder person by a person holding a power of attorney. Such bulk use of an elder’s savings should be referred to the manager who should make inquiries of the attorney. — Ron MacIsaac
Write Us Send your Letters to the Editor to: Deborah Carfrae BarTalk Editor The B.C. Branch of the Canadian Bar Association Fax: 604-669-9601 Toll-free fax: 1-877-669-9601 Email: email@example.com Note: BarTalk undertakes every effort to publish letters to the editor, subject to space and editorial discretion. Letters to the editor can also be found in BarTalk Online at www.cba.org/bc.
volume 24 / number 1
4 From the President Estate and Personal Planning by Sharon Matthews 5 Executive Director Resolution for 2012 by Caroline Nevin 6
Practice Talk Lawyers and Retirement by David J. Bilinsky
7 dave’s tech tips 8 Nothing Official Memo From the Partners by Tony Wilson
10 Section Update Pensions and Benefits Law Wills and Trusts – Vancouver Elder Law Environmental Law, Municipal Law and Public Sector Lawyers Joint Meeting 11 SECTION NEWS Using Webinar Technology to Save on Section Meeting Costs
Elder Law by Christine Murray
12 The Power of Attorney Act Has Changed by Geoff White 13 Wolfman-Stotland v. Stotland, 2011 BCCA 175 by Judith Milliken, QC and Trevor Todd 14 Elder and Guardianship Mediation by Emma J. Butt
Inside This Issue Aging, independence, the capacity to manage our own lives – these are concerns we all face – whether today or in the future. We look at how the law is adapting to handle problems arising from the increasing average age of our citizens, including a new and developing area of Elder Law. Also discussed are changes to Powers of Attorney and Representation Agreements, the role of the Public Guardian and Trustee, the use of mediation in elder law disputes and a recent appellate court decision on capacity issues. We also provide information on the CBABC Lawyer Referral Service on its 40th anniversary.
News and Events 2 2012 CBA Canadian Legal Conference Letter to the Editor re: Power of Attorney 18 Law Day 2012 Marks 30th Anniversary of the Charter Reporting LSBC CPD Hours Intervention at SCC 19 Michele Hollins, QC, Named Incoming 2nd VP; Annette Horst to Serve Second Term as Treasurer Call for Nominations Law Week – April 15-22, 2012 20 Daphne Dumont Appointed to Order of Canada CLEBC Update 21 Legislative Update Branch & Bar Calendar Health & Wellness TIP 22 CBA B.C. WLF Networking Event and CBA B.C. WLF Potluck Initiative makes REAL Impact Mediation TIP
Also In This Issue
15 The Public Guardian and Trustee of B.C.
16 Advance Directives and Representation Agreements by Stan Rule
23 LAW FOUNDATION OF BRITISH COLUMBIA
17 Lawyer Referral Service by John Blois
24 PROFESSIONAL DEVELOPMENT &
25 DISPLAY ADS 26 Bar Moves 27 New Members FEBRUARY 2012 / BarTalk 3
From The President Sharon Matthews
Estate and Personal Planning It’s time to learn and it’s time to plan
ne of the best parts of being CBABC President is the same as one of the best things about being a lawyer, generally: you learn about things you have not previously been exposed to (at least since the Professional Legal Training Course [PLTC]). For me, elder and incapacity law is an example. Reading this issue of BarTalk is a start. The law of estates is changing dramatically, as have powers of attorney, representation agreements and tools to direct health decisions. Even if your practice, like mine, does not involve estate planning, personal planning or other elder law issues, if you have clients who are human beings, they are aging and they need to plan for potential incapacity and certain death. You need to be able to at least steer them in the right direction to do that planning. And here’s a news flash: if you are reading this column, you too are facing potential incapacity and certain death. The best legal acumen in the world will do you no good if you have not planned before either of those events occur. So as I sat down to write this article, it occurred to me that given that it is the beginning of a new year (I am writing this on January 4, 2012) and 12 hours of mandatory professional development stretch ahead, why not include some elder and incapacity law in the mix? Do your clients and yourself a favour. Mandatory professional development has had some very positive side effects (other than the stated purpose of protecting the public through ongoing legal learning by lawyers). It gets us out from behind our mountains of work and into courses, Section meetings or study groups where we have an opportunity to meet with our colleagues. 4 BarTalk / FEBRUARY 2012
In my view, it has enhanced collegiality and camaraderie in the profession. And it offers an incentive to take a course in something out of interest, or just because it might come up. Many professional development opportunities will follow this evolving law. One is the CBABC live course and webinar entitled “Changing Dynamics for Executors,” which will have been held by the time you are reading this but the webinar will be aired through the year. Sometimes planning is not enough and bleep happens. I acknowledge the good work done by dedicated volunteer members of our profession through the CBA (BC) Benevolent Society and by the Lawyers Assistance Program of B.C. (LAP) to help lawyers and their families who encounter unanticipated life crises. The CBA (BC) Benevolent Society was founded in 1997 in response
to a tragic incident in which a lawyer was brutally attacked by a disgruntled litigant. Lawyers made financial contributions to establish the capital fund and a legacy of fundraising, such as the annual Battle of the Bar Bands in many communities, has followed. The Benevolent Society has distributed more than $700,000 to lawyers and their families who are hit with a crisis. Look out for a Battle of the Bar Bands and attend to ensure this vital support can continue. LAP is also an organization of which we should all be proud. It offers our members who are struggling with addiction or other personal crisis a confidential support network. There is nothing like knowing someone who has walked in your shoes to guide you through a thicket. During challenging times, my law partner likes to say things like “if life is a series of adventures, some of which you would rather not have, then this must be life.” It is true, for all of us. Make a plan.
executive director caroline nevin
Resolution for 2012 Deliver beyond expectations
he start of a New Year is a time of optimism and hope; the clock strikes midnight, we close our eyes and open ourselves up to the possibility that this year will be better – that WE will be better – and that the slate of the past year is wiped clean. If organizations set resolutions, here would be ours: No matter where you are, geographically or career-wise, the CBA delivers beyond the value you expect for the price of your membership. One of the invigorating things about working at the CBA is that our membership is so diverse. Some of you are in the throes of “establishing yourself,” others are mid-career and juggling demands on multiple fronts. Another, surprisingly large number of you are looking back on decades of service to clients and the justice system, and are considering when
and how you will “retire” from the law. And all of you have work environments that vary almost as much as your postal codes. For a new lawyers’ organization starting out in B.C., the task might be daunting. How on earth can you serve 6,700 people with so many different needs? We love it. We have the advantage of being more than a century in this role, but perhaps more importantly, we have spent the last few years becoming one of the best organizations in the country when it comes to asking – and listening to – members on the topic of what we can do to be better. We employ 21 people in the B.C. Branch office. Every one of them believes that lawyers do good work in the world and that when we provide support and services that help members, we play a role in that important work. Our personal commitment to knowing and meeting our members’ needs is one of the main reasons that B.C. consistently leads Canada
in terms of innovative ideas that get exported to other Branches. For example, when your membership term is up, you will get a call from a fellow lawyer at some point in the next 60 days if you haven’t yet renewed. For most people, it’s a simple matter of a reminder.
We resolve to deliver great membership value every day! For others, it’s the opportunity to communicate with another lawyer about changes that have happened in their lives, or to communicate how the CBA could do better to serve their particular needs. Regardless of the outcome, we make sure that every member knows that we care enough to check in with him or her, and that we don’t take their membership for granted. That practice started in B.C.
and is now followed in most jurisdictions in the country. Another example of how we listen and respond is in the realm of Professional Development (PD). In B.C., we specialized very early on in quick, accessible PD hours on current topics, primarily by building on the strengths of our Sections and our committed volunteers who lead them. But we didn’t stop there – we worked with all of the other CBA Branches and the Ottawa office to ensure that members had access to all PD hours provided by the CBA anywhere in the country. Overnight, the PD offerings our members could attend, both online and in person, expanded exponentially. Every CBA member now has ongoing access to Canada’s best legal minds in specific areas of law, and a wide array of experts on topics such as practice management, client relations, technology and ethics. These are just two innovations that B.C. has led the way on; and we’re not stopping there. Whenever you have an idea for how we can serve you better, let us know. We resolve to deliver great membership value every day!
firstname.lastname@example.org FEBRUARY 2012 / BarTalk 5
practicetalk david J. bilinsky
Lawyers and Retirement When is it time to hang up the robes? r
We’re gonna miss your smile; we’re gonna miss your style We’re gonna miss your ways; gonna miss you every day... ‘Cause there you go, cruising down the highway of life! r
– Music and Lyrics by MaryLee Sunseri.
ll of us know at least one practising lawyer who has reached his or her’s “best before date.” It is particularly troubling when you think that this lawyer could be you. Raising the issue of retirement with any lawyer can be a difficult and complex discussion, particularly so when someone defines his or her self-worth in terms of being a lawyer. While retirement is usually examined in economic terms, this column looks at the issue in more of a personal context. There are many signs that it may be time to think about moving into the next phase in your life. Retirement is not about retiring from life. It is about leaving behind those aspects that no longer fit with your current stage of life. Here is a Top 10 list of signs that it may be time to consider moving on. 10. Your Client Base: You are no longer sending clients to younger associates as you are trying to keep hold of a diminishing client base to preserve your billings. You realize that you haven’t been attracting new clients to the firm as you once did. 9. Associates: Associates don’t come to your door seeking advice as they once did. 8. Involvement: You haven’t been invited to participate in a CLE program – or even a firm committee – in quite some time. 7. Excitement: At the start of your career you couldn’t wait
6 BarTalk / FEBRUARY 2012
to get into court or be involved in a big deal. You stretched, learned new skills and overcame challenges. You were energized by what practice offered. Now ask yourself: when was the last time you were truly excited about your work? 6. Technology: You no longer have the patience to deal with new tools. You find yourself saying: “Why do they keep changing the stuff on my computer?” Or even worse, you say: “Why do we have to keep paying for this new stuff? What’s wrong with what we have?” 5. Your Spouse: Your spouse has retired and keeps leaving travel brochures on the coffee table. Or worse, his/ her (or your) health may be in jeopardy and you realize that you may be facing a smaller window together than you had anticipated. 4. Too Comfortable: You have
had a great career, you have a sizable retirement fund but you haven’t been pushed outside your comfort zone in a long while. Perhaps you are experiencing a slow death of mediocrity each day. 3. Burnt Out: Have you been going at it – hard – for so long that you feel like you are just running on empty? If even a small challenge feels like a mountain, you may have drained the last of your reserves. 2. You’re in Park: You come to the office each day as you simply don’t know what else to do with your life. 1. Your Spidey-Sense is Tingling: If that small voice inside you, your intuition or your gut, is telling you it is time, then it’s time. Trust it. If you come to the conclusion that it is indeed better to walk out of your office, head held high, rather than being carried out feet first, then start to plan your retirement – now – and open your mind to the possibilities offered by cruising down the highway of life. The views expressed herein are strictly those of the author and may not be shared by the Law Society of British Columbia.
David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: email@example.com Blog: www.thoughtfullaw.com GO ONLINE FOR MORE INFORMATION
dave’s techtips It seems that everyone (even lawyers!) has an iPad today. Accordingly, it seems appropriate that we look at the top rated iPad apps for lawyers that turn the iPad into a wonderful tool for all lawyers. TrialPad Starting from a litigator’s perspective, there is the TrialPad App (www.trialpad.com). Of course, an iPad can be connected to a data projector and brought into court. TrialPad can be used to present evidence in court, mediations, arbitrations, tribunals or in client meetings. This application takes Adobe Acrobat and JPG, GIF, PNG, TIF, Multi-Page TIF, and TXT files (typically imported from Dropbox onto the iPad and then use an Apple Digital AV adaptor) as well as video files (HDMI cable required) (check the TrialPad specs for specific supported formats) and allows you to display them side by side, zoom and annotate the documents. This $89 app packs a very big punch. A great review can be found at: http://bit.ly/vcDpLo.
Audiotorium Notes This note-taking app ($5.99) is stated to be the best note-taking app available for the iPad. It’s approach of organizing notes by Category and Subject is unique. You can highlight, bold, underline, and create bullets for your notes as well as use multiple fonts with multiple colors. It records audio as well with bookmarks. Since lawyers always deal with confidential information, it is good to know that it has a passcode feature. It is also integrated with Dropbox. Furthermore, it has integrated TextExpander support, which allows you to insert the date, time, formulas, common phrases or any other text with just a few keystrokes (http://bit.ly/d1dkIA).
SignMyPad This $3.99 app allows you …or your clients …to sign PDF documents directly on the iPad, using the optional magnetic stylus or their finger. After signing you can save the document, send it or print it. (http://bit.ly/laGr3j)
Evernote This iTunes Hall of Fame app has been named “NY Times Top 10 Must-Have Apps” as well as the Winner, Best Mobile App from TechCrunch, Mashable and the Webbies. Even better, it is free. It helps you remember everything – from notes, to pictures, to recordings. You can create text, photo and audio notes and auto synchronize them to your Mac, PC and to the Web (PDF, Word, Excel, PPT and other
formats). You can even search text within snapshots! (http://bit.ly/tceUbm)
Wunderlist Another iTunes Hall of Fame app, this cloud-based and synched task manager has been named one of the “10 Best Productivity Apps of 2010” by The Next Web. It is also free. It is a multi-platform (Mac, PC, iPhone and iPad, Android, Linux and the Web) and keeps your task lists synched between the multiple devices. If you wish, you can share your tasks (useful for legal assistants and legal secretaries). You can email reminders and email yourself tasks to Wunderlist. Deadlines and due dates are incorporated as well as Notes and Prioritization. (http://bit.ly/c5CmDF)
Articles If you are like me, you spend a great deal of time on Wikipedia researching things. Articles is another App Hall of Famer that is a Wikipedia reader. Its awardwinning interface optimizes Wikipedia articles for reading on an iPhone, iPod and iPad. You can add articles to your “Read Later Queue” and search for text on pages. You can bookmark, see recent items and lookup past article titles. Images can be saved easily as well. Best of all you can lock down the orientation to ensure that it doesn’t change as you are reading. $0.99 (http://bit.ly/ae8F0p) © 2012 David J. Bilinsky
FEBRUARY 2012 / BarTalk 7
nothingofficial TONY WILSON
Memo From the Partners Re: End of the World December 21, 2012
t the last partners meeting, a great deal of time was spent on how the firm will deal with the end of the world when it comes on December 21, 2012, at apparently 2:00 p.m. Pacific Standard Time (half an hour later in Newfoundland). The partners felt it was important that we provide some clarification early in the new year to deal with matters such as billable hours targets, cash-in quotas, bonuses, holiday requests, professional responsibility issues, CPD Credits, and other formal matters prior to December 21, 2012, so that appropriate contingency plans can be made. As for billing and hours targets, please note your quota of billable hours will still have to be met, notwithstanding the end of the world. Fortunately, the apocalypse will come just
before the firm’s fiscal year end. Thus, your hours and billings targets will be pro-rated to December 21. The quotas to be achieved by each lawyer in the firm will therefore be reduced by the number of working days between December 21 and December 31. Should you achieve your targets by December 20, the firm will issue cheques for your bonus amounts at approximately 9:00 a.m. on December 21, permitting you to either deposit your bonus in a bank (for whatever good that will do), or spend it willynilly on anything that you want to until 1:59 p.m. that day, after which time all indications are that you will not be able to take any of it with you. Bonus amounts will only be paid on a “cash-in” basis, so you are encouraged to be fully retained for all work done in the last quarter of 2012, and we suppose, the final fiscal year of the firm. Although the firm will close at noon on December 21st to allow 8 BarTalk / FEBRUARY 2012
you to get home to be with your family just in time for the world to end, the Securities Department will remain in the office until 2:00 p.m. to deal with any final initial public offerings or filings that must be made. There will be no receptionist after 2:00 p.m., and the elevators will be shut off. As per normal protocol when employees or partners leave the firm, on December 21, you will all be required to give up your security pass, your firm-issued cellphone and laptop and sign a confidentiality agreement that protects the firm’s confidential information. Your remote access to our computer network will be terminated as of that date. Please understand that these measures may seem harsh but in no way reflect the firm’s appreciation of your time with us and the significant contributions that you have made. As the Mayan Calendar wasn’t specific as to how the world would
end on December 21, we can’t advise if it will suddenly detonate in a monumental explosion like Vulcan did in the last Star Trek movie, or whether it will start to violently “crack apart” like it did in that horrid movie about 2012 (the awful one with the arks). The partners are of the view that, in the event that the end of the world comes about in a slow and gradual manner, such as in the case of the so-called “Zombie Apocalypse,” (which will turn most people, including many of the Partners and Associates of this Firm, into brain-dead, flesh eating zombies), caution must be exercised before taking defensive action against other members of the firm. Just because a member of our Toronto office is moving toward you menacingly, baring his or her teeth looking like death warmed over, does not necessarily mean he or she has been “Zombified.” It may just simply be because they are from the Toronto office. In any event, there will be a firm meeting on February 5th to go over these and other important matters and the firm’s expectations of you this year. Given the circumstances, you will be entitled to receive one hour of CPD credits for your attendance. The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the CBABC or its members.
feature CHRISTINE MURRAY
Q: What do you see as the biggest challenge in practising Elder Law?
Elder Law Lynda Cassels answers some questions about practising in the area of Elder Law
: What is the CBABC
Elder Law Section currently working on and what are some of the upcoming events for the Section?
One of the Section’s goals is to reach out to practitioners across a broad spectrum of practice areas and assist them in recognizing elder law issues and to help them identify the resources they need to assist their older clients when these issues arise. On February 8, 2012, the CBABC Elder Law Section meeting will be a nuts and bolts practitioner’s session on committeeship applications, entitled “Committeeship 101.” Deidre Herbert of McLellan Herbert and Sarah Watson, solicitor with adult services with the PGT will be joining us for what promises to be a lively and practical discussion. In April, we will be focusing on elder law issues that arise in the family law context. For example, what are the options when one spouse becomes incapable and their capable spouse is unable to access income or assets? What if legal remedies are required under family law legislation to secure support, but the capable spouse does not wish or intend to end the marriage? Anna Laing of Fasken Martineau will be joining us to discuss the recent BCCA case on the capacity to separate (Wolfman-Stotland v. Stotland), the impact of the new Family Law Act, and approaches for assisting clients in these situations.
Q: How did you become involved in practising Elder Law?
For me it was a natural evolution from practising in committeeship, family law and wills and estates. I joined the Elder Law Section in order to meet experienced elder law practitioners and develop this area of my practice.
Personally, one of the biggest challenges is a practical one – how to provide services to older clients in a way that is cost effective. The reality is that with older clients, more time is often needed to serve the client well. The client may be dealing with a number of overlapping issues and family problems, and extra time may be required to assess capacity or investigate the services available to that particular client. Some clients may be hard of hearing or have vision problems
Q: Can you offer some advice to lawyers who want to get involved in practising in the area of Elder Law?
Be honest with yourself about what you like to do and why you are doing it. Elder law, by its nature, involves a lot of one on one involvement with individual clients, often working on tough issues that are of tremendous emotional and personal import. Sometimes, the most prudent course of action from a legal perspective may not sit well with the client, who may be more concerned with preserving family harmony or avoiding conflict. In that way, it is similar to family law. If you don’t love people, don’t go into elder law. If this is what you want to do, recognize that elder law is about more than just the law. Educate yourself about the health issues, community resources and services for seniors in your community. And find a mentor – someone you can talk over the tough cases with.
that make reviewing documents and taking instructions more timeconsuming. There can also be fatigue or health issues that limit how much time the client can spend at one sitting, or when in the day they are able to comfortably meet. Q: What is your favourite quote?
“Do unto others as you would have them do unto you. Think about others as you would have them think about you. Feel about others as you would have them feel about you.” – Dr. Joseph Murphy Left: Lynda Cassels, Vice-Chair for the CBABC Elder Law Section and past member of the National Elder Law Section. Right: Family Lawyer Christine Murray practises at Berge Hart Cassels LLP. FEBRUARY 2012 / BarTalk 9
sections Pensions and Benefits Law
Keep Current A review of Lisa Chamzuk spoke about the Estates and Succession u provincial Section meetings. Act Wills, (WESA), which has received Pensions and Benefits Law Meeting: November 29, 2011 Speaker: Lisa Chamzuk, Lawson Lundell LLP Topic: The Wills, Estates and Succession Act and Beneficiary Designations for Benefit Plans
Wills and Trusts Vancouver Meeting: September 27, 2011 Speakers: James Chalke, QC, Ministry of Attorney General-Justice Services Branch and Hugh McLellan, McLellan Herbert Topic: Bill 29 Incapacity Planning and Case Comment
Elder Law Meeting: November 8, 2011 Speaker: Penny Washington, Bull, Housser, & Tupper LLP Topic: Advance Directives: “Be Careful What You Wish For”
Richard Wenner, Chair
Royal Assent and which will overhaul the estate administration legislation in B.C. once it is in force. WESA will also introduce new rules for how members of “benefit plans” may designate beneficiaries. WESA will apply to a pension plan, RRSP, tax-free savings account and other plans. It only applies to the designation of a “benefit” meaning an amount payable on the death of the participant. However, WESA expressly states that it does not apply to life insurance. WESA’s designation rules will apply even if the benefit plan does not give the participant the right to designate the particular benefit, but WESA also states that it does not have priority if it conflicts with another statute. Registered pension plans in B.C. are governed by pension legislation that mandates a spousal benefit on the death of a member. WESA will not override these requirements: where a member of such a plan dies without a spouse, the member can designate one or more beneficiaries in accordance with WESA.
Wills and Trusts Vancouver James Chalke, QC, discussed
Environmental Law, Municipal Law and Public Sector Lawyers Joint Meeting Meeting: December 6, 2011 Speakers: Chris Rolfe and Colleen Sparks (photo) Topic: A Carbon Neutral Public Sector: B.C.’s Legislative Framework and the Future.
10 BarTalk / FEBRUARY 2012
uthe recent amendments to the
Health Care (Consent) and Care Facility (Admission) Act (HCCFA). Mr. Chalke addressed the legal effect of an incapable patient’s instructions (i.e. in an advance directive) and clarified when it is necessary to obtain a decision from a substitute decision maker. Health care providers may now make an
application to the B.C. Supreme Court seeking a reversal or variation of the decision made by a substitute decision maker. Hugh McLellan spoke on important recent legislative changes. For instance, an advance directive must be in writing and contain specified wording (part 2.1, HCCFA). There will be a non-mandatory prescribed form. A non-standard representation agreement (under s. 9 of the Representation Agreement Act) can now only deal with the personal care and health care of the adult, and not with the adult’s finances. The duties and powers of an attorney are now specified in sections 19 and 20 of the Power of Attorney Act, respectively. Both speakers provided great overviews.
Elder Law Penny Washington presented
uon amendments to the Health
Care (Consent) and Care Facility (Admission) Act (HCCFA). She discussed some additions to the list of temporary substitute decision makers set out in statute and the introduction of advance directives (AD). Prior to the new legislation coming into force the only advance planning documents for substitute health care decision making in B.C. were representation agreements completed in accordance with the Representation Agreement Act. When made in accordance with the HCCFA, ADs will make it possible for health care providers to deliver treatment in accordance with the wishes of the patient expressed in their AD, without involving any substitute decision maker. Court judgments regarding end of life decisions were also discussed, particularly the recent decision of the Ontario Court
of Appeal in Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONSC 482. Ms. Washington noted that this case is an excellent argument for the use of AD, but it is not yet known how this case will be interpreted in B.C. due to significant differences in legislation.
Environmental Law, Municipal Law and Public Sector Lawyers The Public Sector Lawyers,
uMunicipal Law and Environ-
mental Law Sections combined forces to host a joint webinar in Victoria and Vancouver. Public Sector Lawyers Section provided the topic of carbon neutral government and speakers in Victoria, while the Municipal and Environmental Law Sections organized a lunch venue in Vancouver. Members from both cities could participate as a group through the Webinar platform at specified locations, as well as view the live video feed from anywhere in the province. Chris Rolfe and Colleen Sparks discussed B.C.’s legislative framework and the future of building a carbon neutral public sector, including the targets established by the legislation, the measurement and reduction of emissions, off-setting and verification methods. With the technical assistance of the Sections Administrator, Kevin Harding, the meeting was a success from all perspectives – technical, educational and social.
For enrolled CBA members, more detailed information and available minutes from the Section meetings are online at www.cba.org/bc in Sections under Professional Development.
Using Webinar Technology to Save on Section Meeting Costs Planning a Section meeting with an out-of-town speaker? Consider using CBABC’s Webinar platform to save on the cost of airfare and accommodations. This can also be done with different Sections interested in the same topic as a joint meeting (see the Section Update for the meeting of December 6, 2011). Webinars are easy to set up and the CBABC Sections staff will be there every step of the way. “I was surprised how seamless the technology for the webinar was,” states Jennifer Agnolin, Environmental Law Section Secretary. Tina Parbhakar, Public Sector Lawyers Section Registration Officer explains: “This was my first time organizing a Section meeting, let alone a joint Section meeting and webinar broadcast, and it turned out to be very easy. I would strongly recommend working with other Sections and using CBABC technology to spread knowledge among practitioners to the fullest extent.” Eliminate travel time and enjoy the benefits of new perspectives with Webinars!
GO ONLINE FOR MORE INFORMATION
FEBRUARY 2012 / BarTalk 11
features Geoff White
The Power of Attorney Act Has Changed Are your clients protected? Are you?
t’s a recipe for abuse: our clients live longer, but more often with disability; they have more divorces, with fewer kids who live farther apart; and the government struggles to provide adequate support services. It is inevitable that our clients will become more vulnerable, more often. Who will make decisions to protect them when they can’t? That question has been often answered in the financial context by creating a power of attorney that included the “magic” words of section 8 of the Power of Attorney Act to make it endure despite the donor’s subsequent mental incapacity. However, that single section provided little legislative guidance about the duties, powers and operation of the enduring power of attorney. On September 1, 2011, amendments to the Power of Attorney Act came into force to replace that single section with 32 new sections (and six additional sections of Regulations). The amendments create more legislative certainty. Two points should be first mentioned. The amendments do not affect “General (non-enduring) Powers of Attorney,” which are separate from the new “Enduring Power of Attorney” regime. Second, preexisting powers of attorney that were validly made under the old section 8 will be deemed to be valid enduring powers of attorney – their formal validity is grandfathered,
12 BarTalk / FEBRUARY 2012
but they will be subject to all of the new rules regarding duties, powers and operation. For many issues, the new rules simply codify the common law (with some exceptions, including the area of capacity). For other issues, the new rules create a new statutory default power or duty – some are mandatory and some may be modified by the terms of the document. The critical changes include the following: a new statutory capacity test; restrictions on who may act as an attorney (prohibiting some paid caregivers); new signing requirements (including signing by the attorney in addition to the usual Land Title Act statutory declara-
Who will make decisions to protect them when they can’t? tion); a new positive duty on the attorney to be ready to act once they have signed the document; mandatory record keeping once the attorney begins to act; investment only as per the Trustee Act (unless otherwise stated in the enduring power of attorney); gifts limited to no more than $5,000 or lower
per year (unless otherwise stated); beneficiary designations in limited circumstances; no delegation (unless otherwise stated); and no compensation (unless otherwise stated). The new Act also sets out procedures for resignation by the attorney, revocation by the adult (donor), and circumstances under which the authority of the attorney or the document itself may be suspended or terminated. Provisions will recognize some extrajurisdictional enduring powers of attorney (but recognition is subject to significant geographic and procedural restrictions). There are also new provisions to allow the Public Guardian and Trustee to receive reports of abuse and to make investigations, and for applications to seek directions and orders from a court. In short, there are many new rules to consider. As a practical matter, you may wish to update your interview checklist to consider the specific capacity test, and to determine your clients’ views about the attorney’s power to invest, gift, delegate, or be remunerated. The CBA and CLEBC have developed useful precedents that you may wish to compare to your own. The ultimate goal is to protect your client. There are new tools and rules to do this with enduring powers of attorney. A good knowledge of these new amendments will ensure that you too are protected as you help achieve your clients’ goals. Geoff White of Geoffrey W. White Law Corporation.
Judith Milliken, QC and R. Trevor Todd
Wolfman-Stotland v. Stotland, 2011 BCCA 175
A review of the case
his case reviews the hierarchy of levels of capacity required for various legal acts ranging from marriage, to managing one’s affairs, to testamentary capacity. Having reviewed this hierarchy, the court concludes the capacity required to live separate and apart under s. 57 of the Family Relations Act is equivalent to that required to marry – i.e. the lowest level of understanding. Higher up the hierarchy are the capacity to manage one’s affairs and the ability to instruct counsel. Citing caselaw, the court concludes that financial matters require a higher level of understanding than decisions about with whom or where one should live. In this case, Dr. Sloan, a family physician, had opined a cognitively impaired 92-year-old wife incapable of managing her affairs. With respect to s. 57 of the FRA, she wanted to separate, solely to gain control of her assets to prevent a nephew from inheriting. Given this “coherent plan,” Dr. Sloan opined she had capacity to instruct counsel limited to the financial aspects of divorce. Based largely on this latter finding, the court ruled she must, accordingly, also have the lesser mental capacity required to legally separate. The court, in effect, assumed that one capacity necessarily included the other and
mechanically applied this formula to overturn the decision by the chambers judge who had found her incapable of legally separating under s. 57. The decision is particularly troublesome on the facts. This
case involved a 55-year marriage of a childless couple in their nineties. The wife had
The wife had been in a care facility for years. Her husband regularly visited her. Her only complaint was that he “falls asleep at bingo.” been in a care facility for years. Her husband regularly visited her. Her only complaint was that he “falls asleep at bingo.” Her sole reason for separating
was her mistaken belief that otherwise her husband’s “sneaky” nephew would inherit everything. Although she knew that divorce was “when you legally end a marriage” she was seeking a s. 57 order based entirely on her mistaken belief of who would inherit her estate. Dr. Sloan found the wife was suffering from dementia. Her cognitive evaluation was 16/30 and she showed several important deficiencies in her mental function. Her short-term recall was poor or absent, her conversation often tangential and sometimes her answers had no relationship to the question posed. Dr. Sloan found she had impaired understanding of the personal aspects of her marriage and limited understanding of the financial aspects of divorce. In finding lack of capacity, the trial judge also noted her answers on cross- examination were often disjointed and unresponsive and she could not identify the nature of an affidavit. This appeal decision unfortunately seems to fly in the face of common sense. Legislative guidance is needed soon to clarify the relevant criteria for capacity under s. 57 just as was done recently for finding capacity to grant an enduring power of attorney. We trust this decision may prompt the legislature to follow suit in the case of legal separations, thus reducing the opportunity for background manipulation and abuse of seniors by would-be heirs.
Judith Milliken and Trevor Todd are senior B.C. wills and estate litigation lawyers. FEBRUARY 2012 / BarTalk 13
features Emma J. Butt
Elder and Guardianship Mediation A BCLI/CCEL Report
he British Columbia Law Institute and the Canadian Centre for Elder Law recently completed their report, Elder and Guardianship Mediation. The report is the culmination of a major, two-year project, generously funded by the Law Foundation of British Columbia. Recent legislation and private practice experience indicates that elder and guardianship mediation are important and positive new areas of legal expansion in Canada, and in British Columbia in particular. B.C. now has legislation requiring mediation in adult guardianship matters.1 The mandatory mediation provisions were included in the major reform of adult guardianship and substitute decision-making legislation contained in the Adult Guardianship and Planning Statutes Amendment Act, 2007 (commonly referred to as “Bill 29”).2 The fields of elder mediation and guardianship mediation are likely to expand rapidly once the guardianship mediation provisions are brought into force. The Elder and Guardianship Mediation Project was born out of a need to establish practice guidelines and develop competencies and standards for mediators practising in these emerging and overlapping areas. The report also responds to the need for comprehensive research and analysis related to the challenges and issues raised in the 14 BarTalk / FEBRUARY 2012
context of elder and guardianship mediation, in recognition that these specialized practice areas are developing and continuing to expand. The Elder and Guardianship Mediation Report includes the following components: an outline of the overarching legal context; clarification of the meaning of the concept of elder and guardianship mediation; background on elder mediation in Canada; a comparative analysis of select U.S. court-annexed guardianship mediation programs; and a discussion of ethical issues that arise in the context of mediating at that place where age and mental capacity intersect. The report provides a summary of the recommendations for best practices in elder and guardianship mediation related to training and standards for elder and guardianship mediators (including a list of recommended core competencies), ethical standards in elder and guardianship mediation, and mediation models and styles. The report also highlights recommendations, considerations and strategies for the development of courtconnected guardianship mediation programs, which would be applicable to the development of
a court-connected guardianship mediation program established pursuant to B.C. legislation governing adult guardianship mediation. The report aims to substantively address legal, ethical, social and practice issues raised by mandatory and voluntary elder and guardianship mediation, and to develop informational resources to assist those engaged in the fields of elder and guardianship mediation. The report is the first comprehensive study of elder and guardianship mediation in Canada, bringing together various materials that should be considered before further exploring the question of how to move forward with the development of elder and guardianship mediation in B.C. Individuals involved in the development of law and regulations require access to comprehensive information on elder and guardianship mediation in order to move forward. This report serves different needs for diverse practitioners and participants in mediation processes. The focus of the Elder and Guardianship Mediation Project is B.C., however, as elder mediation is in its infancy in Canada, the report’s recommendations will apply more broadly to elder and guardianship mediation outside B.C. The report will be published in January 2012 and available online at: http://bcli.org/ccel/publications/report-elder-and-guardianship-mediation. 1
Adult Guardianship Act, R.S.B.C. 1996, c. 6, s. 6(1), as amended, not yet in force. 2 S.B.C. 2007, c. 34.
Emma J. Butt, Staff Lawyer, BCLI/CCEL
The Public Guardian and Trustee of B.C.
The Public Guardian and Trustee of B.C. Responding to elder abuse
lder abuse includes financial and non-financial abuse and neglect. Often, where there is financial abuse, other abuse is occurring. B.C.’s Adult Guardianship Act defines abuse as “the deliberate mistreatment that causes physical, mental or emotional harm, or damage to or loss in respect of the adult’s financial affairs.” Neglect includes self-neglect. It is “any failure to provide necessary care, assistance, guidance or attention if that failure causes, or is reasonably likely to cause, within a short period of time, serious physical, mental or emotional harm, or substantial damage or loss in respect of the adult’s financial affairs.” In B.C. there are three options for reporting abuse and neglect, depending on the concern and the adult’s mental capability. Suspected criminal offences can be reported to the police. Part 3 of the Adult Guardianship Act also provides for confidential reports to be made to a Designated Agency. When adults are abused or neglected and cannot seek assistance on their own, a Designated Agency will investigate, offer support and assistance, report crimes to the police and, where financial abuse is suspected, refer concerns to the Public Guardian and Trustee of B.C. for a more detailed investigation. The Public Guardian and Trustee of B.C.’s authority to investigate
reports of abuse and neglect is found in the Public Guardian and Trustee Act. The Public Guardian and Trustee of B.C. can also receive reports pursuant to the Power of Attorney Act and the Representation Agreement Act. Public Guardian and Trustee of B.C. investigations are guided by the Adult Guardianship Act principles – a presumption of capability, respect for an adult’s right to self determination and the least intrusive response. The Public Guardian and Trustee of B.C. may investigate and audit the affairs, dealings and accounts of a trustee if a beneficiary appears to be abused or neglected, any adult who appears to be abused or neglected, as well as representatives acting under a representation agreement, an attorney acting under a power of attorney or enduring power of attorney and committees. The identity of anyone making a report under the Public Guardian and Trustee Act is protected and the Public Guardian and Trustee of B.C. will investigate in cases where there is immediate risk of harm to an adult’s assets, there is a reason to believe the adult is not capable of managing his or her financial and legal affairs, and no other suitable person is available to manage the adult’s affairs.
Section 18 of the Public Guardian and Trustee Act sets out Public Guardian and Trustee of B.C. powers to request information and protects third parties from liability for breach of confidentiality when responding to those requests. There are a number of possible outcomes of an investigation. These include: arranging informal solutions or supports and/or referring to appropriate community services; a representative or attorney agreeing to comply with their duties going forward; a referral to a Designated Agency to investigate other abuse or neglect and/ or for further support and assistance; and a recommendation that the Public Guardian and Trustee of B.C. become committee of the adult’s estate when there is no other person available and/ or appropriate to take on the role, and there are sufficient assets to warrant the Public Guardian and Trustee of B.C.’s involvement. Where the Public Guardian and Trustee of B.C. recommends committeeship, the usual process is to arrange for an assessment in accordance with the Public Guardian and Trustee of B.C.’s Guidelines for Issuing a Certificate of Incapability under the Patients Property Act. Court applications are made where a Committee of Person is also required or there is a dispute about who should become Committee of Estate. For more information on the Public Guardian and Trustee of B.C.’s services and links to Designated Agencies, see www.trustee.bc.ca. FEBRUARY 2012 / BarTalk 15
feature STAN RULE
Advance Directives and Representation Agreements
How do they differ?
s of September 1, 2011, advance directives are now recognized in Part 2.1 of the Health Care (Consent) and Care Facility (Admission) Act. What are advance directives, and how do they differ from representation agreements? If an adult has both a representation agreement and an advance directive in respect of a specified medical procedure, must a physician or other health care provider consult with the adult’s representative before giving or withholding the specified procedure? What is the interaction between the two instruments? An advance directive is “a written instruction made by a capable adult that… gives or refuses consent to health care for the adult in the event that the adult is not capable of giving the instruction at the time the health care is required….” This definition is taken from section 1 of the Health Care (Consent) and Care Facility (Admission) Act. A representation agreement is a written agreement between an adult and one or more representatives, authorizing the representatives to make decisions or do things on behalf of the adult in relation to his or her personal care and health care. An adult may also authorize representatives to obtain legal services for the adult, “make arrangements
16 BarTalk / FEBRUARY 2012
for the temporary care and education of the adult’s minor children or other persons cared for or supported by the adult,” and handle “routine management of the adult’s financial affairs.” Accordingly, representation agreements may be broader in scope than advance directives, authorizing decisions concerning personal care and other matters in addition to health care. Representation agreements give effect to an adult’s specific instructions and wishes indirectly, by requiring the representative to consult with the adult and comply with the adult’s current wishes “if it is reasonable to do so…” unless the representation agreement provides that the representative need only comply with the adult’s wishes expressed while capable. If it is not reasonable to comply with current wishes, they are not known or the duty to comply with them is excluded in the agreement, then the representative must comply with the adult’s instructions or wishes expressed by the adult while capable. In contrast, advance directives are direct expressions of the adult’s instructions and wishes. They operate under the following conditions: the health care provider is of the opinion that the adult needs health care;
adult is incapable of giving or refusing consent to health care; and the health care provider does not know of the appointment of a representative or committee of the person of the adult. Under those conditions, the health care provider may provide health care to which the adult had consented and must not provide health care that the adult had refused in the directive. If the adult has made both a health care directive and a representation agreement granting the representative authority in respect of the proposed health care, which document governs? The health care provider must consult with the representative, and the advance directive is treated as an expression of the adult’s wishes while capable under the Representation Agreement Act unless the representation agreement provides that a health care provider may act in accordance with the advance directive without consulting with the representative. In summary, under this new legislation, unless a representation agreement provides that a health care provider may act in accordance with the advance directive, without consulting with the representative, then the health care provider must consult with the representative and the advance directive is treated as an expression of the adult’s wishes while capable. Stan Rule is a partner at the Kelowna law firm of Sabey Rule LLP. Stan’s preferred areas of practice are wills, trusts, estates, and estate litigation. He writes a legal blog entitled “Rule of Law.”
guest JOHN BLOIS
appointment, explaining that LRS gave them the lawyer’s name. This ensures they get the first 30 minutes for $25. LRS confirms the referral with the lawyer and then moves the lawyer’s name to the bottom of the referral list. But if the person does not contact the lawyer within two weeks, and the lawyer lets LRS know that, the lawyer’s name goes back to the top of the list. Who uses LRS: Thousands of people in B.C. have used LRS since 1955. Table 1 shows the top-10 areas of law for referrals, from July 2010 to June 2011. Why lawyers join LRS: They get free advertising and immediate referrals – more than 35,000 in 2010/2011. They also provide a valuable public service. It’s free and easy to join. Table 2 shows some LRS referrals by type of law and location, and the number of lawyers who received them, from July 2010 to June 2011. How to join LRS: Go to the CBABC website at www.cba.org/ BC/Initiatives/main/lawyer_referral.aspx for an instruction letter, an online registration form, and detailed information. For inquiries call 604-687-3221 or 1-800-663-1919.
Lawyer Referral Service
Connecting people and lawyers
he idea behind the Lawyer Referral Service (LRS): Many
people need legal help at some point. But because legal problems are not that common, many people may not know if their problem is legal. The Lawyer Referral Service (LRS) refers these people to lawyers so they can learn if they have a legal problem and then hire a lawyer. It also helps lawyers find clients. The Law Society started and ran LRS until the B.C. Branch of the Canadian Bar Association (CBABC) took over in 1971. Nearly 2,100 lawyers currently participate in LRS. Both Canadian Bar Association (CBA) and non-CBA members can join. The Law Foundation of B.C. funds the program. TABLE 1: LRS referrals by area of law – July 2010 to June 2011 Area of Law
Half an hour for $25 to learn if problem is legal: LRS lets
people consult a lawyer for up to 30 minutes for $25 to find out if they have a legal problem. In some cases, the problem is resolved at the first meeting. If the problem requires work beyond the first half hour, the person and the lawyer may agree to continue at the lawyer’s regular rate. LRS can also help people find a lawyer to meet specific needs, such as speaking a certain language or accepting legal aid. How LRS works: When a person calls LRS (open Monday to Friday, from 8:30 a.m. to 4:30 p.m.) an operator asks what the problem is and in what city the person wants to meet with a lawyer. The operator decides what type of law is involved and gives the person the name and number for a lawyer near them who practises that type of law. The person can then phone the lawyer to make an
Wills, Estates & Trusts
TABLE 2: Selected LRS referrals – July 2010 to June 2011 No. of Referrals
Type of law
No. of Lawyers
FEBRUARY 2012 / BarTalk 17
news&events Untitled-1 1 12/9/2011 10:00:27 AM
3i 0 th ve
Journée du droit
CBA NATIONAL NEWS
Law Day 2012 Marks 30th Anniversary of the Charter April 17, 2012, will mark both Law Day and the 30th anniversary of the Canadian Charter of Rights and Freedoms. On and around that day, lawyers and judges will participate in programs for elementary and high school students, families, and the general public to explain the workings of the law and legal systems in Canada. Numerous activities will have a special focus on the Charter and its importance. National Law Day Chair Karlee Blatz of Winnipeg says planning for Law Day 2012 is off to a good start. “We held our first call of the national committee in November and the scope of activities in the works is most impressive.” Planned activities across the country include lectures on the law, mock trials, courthouse tours, fun runs, open citizenship courts, and poster, photography and public speaking contests. 18 BarTalk / FEBRUARY 2012
In British Columbia, many activities are planned – in fact too many to be held on one day. Law Week takes place from April 1522. “We’re very excited about the events we are planning across the province,” says Colleen Spier, Chair of CBABC’s Law Week committee. “Some of these events include high school outreach programs, police demonstrations and our annual dial-a-lawyer program, which allows B.C. residents to speak with volunteer lawyers for 15 minutes free of charge.” In addition to the CBA’s lineup of activities, a group of University of Windsor law students have launched the Charter Project in honour of the Charter’s 30th anniversary. The project’s objective is to increase awareness and understanding of the Charter through education. “They are offering online video content and educational workshops aimed at
Reporting LSBC CPD Hours A unique course code can now be used to quickly find CBABC PD Seminars and Section Meetings on the Law Society of B.C. website when reporting CPD hours. See our Quick Tips for the 2012 course codes and more information. Quick TIps \\ www.cba.org/BC/sections_ pdfs/pdf/report_cpd_ hours.pdf
high school students,” explains Karlee Blatz. Byron Pascoe and Jennifer Graham of the University of Windsor described the online character of their initiative on the committee’s November call. Currently, it contains videos of legal pioneers and celebrities, including Frank Iacobucci, Howie Mandel, and Rick Hansen, to name a few, describing what the Charter means to them. On the education side, online programs will offer basic information about rights and responsibilities under the Charter. “Law Day organizers are hoping to make use of the materials developed by the Charter Project in conjunction with high school mock trials and debates,” says Karlee Blatz. Law Day is organized by the CBA. Volunteer committees in CBA Branches are in place. To volunteer or take part in B.C., please contact Alexandra Schwabe of the CBABC Branch at firstname.lastname@example.org. Law Day \\ www.cba.org/CBA/LawDay/main/ GO ONLINE FOR MORE INFORMATION
CBA NATIONAL NEWS
Michele Hollins, QC, Named Incoming 2nd VP; Annette Horst to Serve Second Term as Treasurer been named CBA Treasurer for a second term. Both Michele Hollins and Annette Horst ran unchallenged. Their acclamations will become official at the CBA Mid-Winter Meeting of Council in February. Having served as President of the CBA’s Alberta Branch in 2007-08, Michele Hollins has been involved with the CBA for many years. Nationally, she is the Vice-Chair of the CBA Communications Committee, and is Chair of the CBA’s CLC and Mid-Winter Review Committee. A partner at Annette Horst Dunphy Best Blocksom
On December 16, 2011, CBA President Trinda L. Ernst, QC, announced that Michele Hollins, QC, of Calgary has been named the incoming CBA Second VicePresident. In addition, Annette Horst of The Pas, Manitoba, has
Michele Hollins, QC
in Calgary, Michele Hollins will become CBA president in 2014. Annette Horst served as President of the Manitoba Bar Association (CBA’s Manitoba Branch) in 2008-09 and was National Chair of the Young Lawyers-CBA in 2006-07. A supervising attorney at Legal Aid Manitoba’s Northland Community Law Centre in The Pas, Annette Horst is currently serving a two-year term as CBA Treasurer. In 2012, she will begin her second term as Treasurer, a role she will hold until 2015. Trinda Ernst congratulated both Michele and Annette on behalf of the CBA’s Board of Directors and staff.
Call for Nominations
Law Week April 15-22, 2012
You are encouraged to honour a colleague and fellow CBABC member through their nomination for one of the following prestigious awards: The Community Service Award recognizes the valuable contributions of CBABC members serving the communities in our province. Every other year the CBABC sponsors Community Service Awards in each county. The Equality and Diversity Award celebrates the accomplishments of a CBABC member who has succeeded in advancing equality in the legal profession or generally in B.C. The Harry Rankin, QC Pro Bono Award was established in
recognition of the immense contribution of Harry Rankin, QC in supporting access to justice for the poor. The Award recognizes outstanding contributions by a member of the CBABC in the area of pro bono work. The Work Life Balance Award recognizes lawyers, law firms or organizations who demonstrate leadership in promoting work life balance within the practice of law. Nominations for all awards must be submitted before 4:30 p.m. on April 20, 2012. Additional information on these awards and nomination forms are available on the home page at cba.org/bc under “Call for Nominations.”
Law Week 2012 events will be held in communities throughout British Columbia. The Vancouver Law Week Open House will be held on April 17, 2012 at the Vancouver Art Gallery. The Vancouver Fun Run is scheduled for April 22, 2012. For more information on \\ Law Week 2011 events visit www.bclawweek.org.
FEBRUARY 2012 / BarTalk 19
news&events CBA NATIONAL NEWS
Daphne Dumont Appointed to Order of Canada Daphne Dumont of Charlottetown, President of the CBA in 2000-2001, has been appointed a member of the Order of Canada in recognition of outstanding achievement, dedication to the community and service to the nation. CBA President Trinda L. Ernst, QC, of Kentville, NS has been a friend and colleague of Daphne Dumont’s for many years. Trinda Ernst offers her personal congratulations, along with those of the CBA, to Daphne Dumont. “Your priorities as CBA President more than a decade ago have had a ripple effect, resulting in incremental improvements to legal aid in various Canadian jurisdictions, and more recently an awakening to the need for a new systemwide focus on access to justice in Canada,” noted Trinda Ernst.
CLEBC Update Transition to the new Family Law Act The long-awaited Family Law Act (Bill 16) received Royal Assent on November 24, 2011. The Act will come into force by regulation (with a few exceptions, for instance, parental support (s. 90) and property agreements (s. 120.1) are repealed on Royal Assent). When in force, the Family Law Act will repeal the Family Relations Act and introduce some new concepts, including:
20 BarTalk / FEBRUARY 2012
“Your contributions not only benefit all Canadians, but specifically women in the legal profession. You have become our role model ‘par excellence’,” added Trinda Ernst.
to children with concepts of “guardianship,” “parental responsibilities,” and “contact with the child” and eliminating the concepts of “custody” and “access”; extending the property division regime to unmarried persons who qualify as spouses; adding family violence to the list of considerations of the best interests of the child; and clarifying issues of parentage in cases of assisted reproduction. The Act is available on the B.C. legislature’s website at www.leg.bc.ca. We will keep
In 2009, Daphne Dumont received the Governor General’s Award in commemoration of the Person’s Case. She earned her law degree at Oxford University in 1976, where she was the first woman admitted to study law at Wadham College. The third woman president of the CBA, she was the first from Prince Edward Island. Daphne Dumont was President of the PEI Branch (1986-1987) and was a member of the National Task Force on Gender Equality in the Legal Profession (19911993), which produced the landmark report on Gender Equality in the Legal Profession. She was named Queen’s Counsel in 1995 and was a founding member of the Women’s Legal Education and Action Fund (LEAF).
you up-to-date on any news about the in force date of the Act. CLEBC will be working hard to provide a full range of courses and materials to assist you in transitioning to the new Act. Watch for upcoming introductions to the new Act on CLE-TV and a Family Law Transition Guide. For further information, contact CLEBC customer service at 604-893-2121, or visit the CLEBC website at www.cle.bc.ca.
B.C. legislative update
Acts In Force Current from November 2, 2011 to December 27, 2011 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclusively at www.cba.org/bc. HEALTH STATUTES AMENDMENT ACT, 2007, S.B.C. 2007, C. 19 (BILL 26) Section 32, insofar as it enacts section 13.1(5) of the Pharmacy Operations and Drug Scheduling Act, is in force February 1, 2012 INSURANCE AMENDMENT ACT, 2009, S.B.C. 2009, C. 16 (BILL 6) Act, except section 4 insofar as it enacts section 2.3 of the Insurance Act, section 13 insofar as it repeals section 28 of the Insurance Act, section 14 insofar as it enacts section 28.6 of the Insurance Act, section 101, section 111(b) and section 112, is in force July 1, 2012 MISCELLANEOUS STATUTES AMENDMENT (NO. 2), 2010, S.B.C. 2010, C. 6 (BILL 11) Sections 8, 10(a) and 11 are in force December 2, 2011 MISCELLANEOUS STATUTES AMENDMENT ACT (NO. 3), 2010, S.B.C. 2010, C. 21 (BILL 20) Sections 189 and 191 are in force January 2, 2012. Sections 180 to 188 and 192 are in force January 30, 2012 MISCELLANEOUS STATUTES AMENDMENT ACT (NO. 2), 2011, S.B.C. 2011, C. 13 (BILL 13) Section 33 is in force December 14, 2011 STRATA PROPERTY AMENDMENT ACT, 2009, S.B.C. 2009, C. 17 (BILL 8) Sections 7(c), 12 (b), 15 and 33(a) and (d) are in force December 14, 2011. Section 12(a) is in force January 1, 2014. TEACHERS ACT, S.B.C. 2011, C. 19 (BILL 12) Act is in force January 9, 2012 YALE FIRST NATION FINAL AGREEMENT ACT, S.B.C. 2011, C. 11 (BILL 11) Section 20 is in force December 31, 2011. Sections 34 to 39 are in force December 31, 2011
branch & bar
CBABC PD Seminar: Diversity: Equality in Action – Principles, Problems and Practicalities
CBABC PD Webinar (with In-Person Option): How to Avoid the Fear and Prepare for Your Law Society Compliance Audit
14 CBABC PD Joint Seminar: Ethics in Action: Practice and Community 16 CBABC PD Seminar: Dealing with Self-represented Litigants – Practical Tips 23 CBA B.C. Women Lawyers Forum, Junior Women Lawyers Networking Event 24 19th Annual National Achievement Awards
8 & 22 CBABC PD Joint Seminar: Ethics in Action: Practice and Community 8
CBA B.C. WLF Potluck Dinner
10 Provincial Council
Health & Wellness TIP Making Food a Priority Choosing healthy food items to eat is often harder than we think. Especially if you are tired, hungry and/or travelling long hours. If you are on a plane, your choices are limited. Further, depending upon what city or country you live in, your choices are limited. Be sure that you are getting adequate amounts of protein in your diet. If you are concerned that this is lacking, take along snacks that are protein rich and easy to consume. Having healthy snacks at your fingertips might just help you to make the choice to eat those, rather than rely on “fast” food options found on the run. COURTESY OF
PPC CANADA www.ppconline.info FEBRUARY 2012 / BarTalk 21
news&events Initiative makes REAL Impact CBA B.C. WLF NEWS
CBA B.C. WLF Networking Event CBA B.C. Women Lawyers Forum will host its first networking event geared specifically for junior women lawyers at Joeys Bentall in Vancouver on February 23, 2012 at 5:30 p.m. The event is open to all WLF members at a cost of $17 per person plus tax, which includes appetizers as well as a no-host bar. Space is limited. For further information, please contact Kate Saunders at ksaunders@ branmac.com.
CBA B.C. WLF Potluck Trinda Ernst, QC CBA National President will be the guest of honour at the CBA B.C. Women Lawyers Forum’s next potluck dinner on March 8, 2012. This event will be hosted by CBABC President, Sharon Matthews and will provide a unique opportunity for women lawyers to meet these two CBA Presidents in a casual environment. Watch for further registration details or contact email@example.com.
Commenced in 2009, the Rural Education and Access to Lawyers Initiative (REAL) is a coordinated set of programs intended to address the current and project shortage of lawyers practicing in rural areas and small communities in British Columbia. The passing of 2011 to 2012 marks three years of operation of the REAL Initiative and provides a brief opportunity for reflection on the success of this innovative project. Perhaps the most impactful aspect of the Initiative has been the summer student program that provides funding and support to lawyers and law firms throughout the province to hire summer students. Since its launch, the program has provided summer placements for 52 students in locations throughout British Columbia. These students have not only learned the benefits of small town practice and contributed their services to the communities in which they summered, but approximately 50 per cent of them have returned to these communities to complete their articles. In addition to the summer student program, the REAL Initiative has also made a significant impact by changing the dialogue around small town practice and lawyer succession in these areas.
The success of the Initiative is in no small part the result of the participant lawyers in small communities and the students who join them. As the Initiative looks forward to another impactful year, all lawyers and students with an interest in participating in the Initiative are encouraged to visit the REAL website for further information.
Mediation TIP Create a Collaborative Climate Leave the “adversarial hat” at the door and instead become the “wise advisor.” Prepare your client in advance by explaining the stages of mediation (opening, identifying and exploring the issues, creating an agreement). Advise your client that although your client may not agree with the other party’s perspective and may even find it unpleasant, listening to the other side and being listened to in turn leads to workable options for resolution. COURTESY OF 22 BarTalk / FEBRUARY 2012
Mediate BC Society www.mediatebc.com
grantsapproved Continuing Programs and Projects The Board of Governors of the Law Foundation of B.C. met on November 12, 2011 and approved funding for a number of continuing programs and projects. Chair Margaret Sasges is pleased to announce that funding totalling $10,526,126 was approved for 55 programs and projects. Funding totalling $9,950,740 was approved for the following 43 continuing programs: $3,599,750 LEGAL SERVICES SOCIETY
Operating Grant 2012/2013
$2,737,750 BC COURTHOUSE LIBRARY SOCIETY
$27,500 Legal Education and Research Grants 2012/2013 $27,000 Entrance Awards 2012/2013 UNIVERSITY OF VICTORIA $97,200 Public Interest
Scholarships $58,000 Entrance Scholarships 2012/2013 $27,500 Legal Education and Research Projects 2012/2013 ABBOTSFORD COMMUNITY SERVICES SOCIETY $93,750 Regional Legal
Advocacy Program $93,750 Poverty Law Advocacy Program
B.C. COALITION OF PEOPLE WITH DISABILITIES $191,990 Advocacy
Access Appeals Program $26,770 Reception/ Intake Coordinator JUSTICE EDUCATION SOCIETY OF B.C. $187,500 Core Programs $76,000 Northern Native
Public Legal Education Program for Aboriginal Communities
UNIVERSITY OF BRITISH COLUMBIA $167,000 First Nations
Clinical Program $120,000 Graduate Fellowships 2012/2013 $65,000 Public Interest Work Placements $58,000 Undergraduate Scholarships 2012/2013
Community Placement Program
$93,750 NORTH SHORE COMMUNITY RESOURCES SOCIETY
$20,000 DEBATE AND SPEECH ASSOCIATION OF B.C.
North Shore Legal Advocacy Program
$93,750 PENTICTON AND AREA WOMEN’S CENTRE
Legal Advocacy Program $87,500 QUESNEL TILLICUM SOCIETY
Poverty Law Information Worker Program
$81,250 SOUTH PEACE COMMUNITY RESOURCES SOCIETY
Legal Education/ Advocacy Program
$93,750 FORT ST. JOHN WOMEN’S RESOURCE SOCIETY
Legal Advocacy Program
$93,750 CHIMO CRISIS SERVICES SOCIETY
Legal Advocacy Services in the Downtown Eastside
LAW SOCIETY OF B.C. $257,180 Professional
Legal Training Course
$25,000 PRO BONO STUDENTS OF CANADA – UBC
South Peace Outreach Legal Advocacy Program
Outreach and Advocacy in Richmond
$71,500 CANLII Virtual
$93,750 NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETY
$93,750 ATIRA WOMEN’S RESOURCE SOCIETY
$313,600 B.C. CIVIL LIBERTIES ASSOCIATION
Law Foundation of British Columbia
Poverty Law Advocacy Program
$93,750 KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETY
Poverty Law Advocacy Program $93,750 MAPLE RIDGE/PITT MEADOWS COMMUNITY SERVICES
Community Law Advocacy Program
$75,000 HAIDA GWAII LEGAL PROJECT SOCIETY
$75,000 POWELL RIVER COMMUNITY SERVICES ASSOCIATION
Poverty Law Advocacy Program $70,000 B.C. FREEDOM OF INFORMATION AND PRIVACY ASSOCIATION
Law Reform and Public Legal Education Program
$68,750 UPPER SKEENA COUNSELLING & LEGAL ASSISTANCE SOCIETY
$50,000 MULTIPLE SCLEROSIS SOCIETY, B.C. DIVISION
$93,750 NANAIMO CITIZEN ADVOCACY ASSOCIATION
Volunteer Legal Advocacy Program
$93,750 NEWTON ADVOCACY GROUP SOCIETY
Pro Bono & Justice Services
Nanaimo Citizen Legal Advocacy Program
Poverty Law Advocacy Program
$50,000 SALVATION ARMY BELKIN HOUSE
$35,000 PRINCE RUPERT UNEMPLOYED CENTRE SOCIETY
2012 Law Foundation Cup Provincial Debating Championship $19,000 PRO BONO STUDENTS CANADA – UVIC
Student Placement Program
Funding totalling $480,500 was approved for the following seven grants: $100,000 UNIVERSITY OF BRITISH COLUMBIA Law Foundation Awards $93,750 B.C. COALITION OF PEOPLE WITH DISABILITIES CPP Disability Program $93,750 VERNON WOMEN’S TRANSITION HOUSE SOCIETY North Okanagan Legal Advocacy Program THOMPSON RIVERS UNIVERSITY $58,000 – Entrance Scholarships 2012/2013 $55,000 – Legal Education and Research Projects 2011/2012 and 2012/2013 $50,000 UNIVERSITY OF VICTORIA Law Foundation Awards $30,000 FOUNDATION FOR LEGAL RESEARCH Legal Research Project For full details of \\ the programs and projects that received funding, please visit www.lawfoundationbc.org.
FEBRUARY 2012 / BarTalk 23
professionaldevelopment email: PD@bccba.org
WEBSITE: CBA.ORG/PD \\
Our courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, advance one’s career, practise and do business. CBABC prides itself in bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management component for 2012 Law Society of B.C. reporting. Attendance at all seminars listed below will provide you with 100 per cent of the required two hour professional responsibility and ethics, client care and relations, and practice management component for 2012 Law Society of B.C. reporting.
Location: Inn at the Quay, New Westminster
How to Avoid the Fear and Prepare for Your Law Society Compliance Audit
Date: March 8, 2012 Speakers: Grant W. Currie, Local Lawyer and Nancy G. Merrill, Bencher Location: Crown Isle Resort and Golf Community, Courtenay
Date: February 9, 2012 Speakers: Felicia Ciolfitto, Manager, Trust Regulation, Law Society of B.C. and AngiolaPatrizia De Stefanis JD, Alliance Lex Law Corporation Location: Support Services Unlimited, Vancouver (in-person seminar); Online (webinar)
and Master Peter J. Keighley, Supreme Court of British Columbia Location: Law Courts Inn, Vancouver
Dealing with Self-represented Litigants – Practical Tips
Ethics in Action: Practice and Community
Date: February 16, 2012
Date: February 14, 2012 Speakers: Leon Getz, QC, Bencher and Karl F. Warner, QC, Local Lawyer
Speakers: Andrea Brownstone, Law Society of B.C., David R. Greig, South Coast Law Group
Date: March 22, 2011 Speakers: Gregory Petrisor, Local Bencher and Wayne Plenert, Peacebuilder Mediation Location: Super 8, Dawson Creek Date: April 17, 2011 Speakers: Patricia Bond, North Shore Law LLP and Sharon Matthews, Camp Fiorante Matthews Mogerman Location: North Vancouver
\\ For a complete list of registration details and requirements, please contact Professional Development
Department at 604-646-7866 or 1-888-687-3404 ext. 329, or email firstname.lastname@example.org.
memberservices email: MEMBERS@bccba.org
Seasonal promotions and special offers to members are promoted weekly via CBABC News and Jobs. Visit the CBABC website for links to various activities and promotions on the Member Savings page from the drop down list under Membership. BCLMA/CBABC Support Staff Compensation and Charge-Out Rates Surveys for 2011 are available for purchase. \\ Stay competitive and know your market! Accommodations – CBA members receive exclusive savings when they book hotel rooms through Meetingmax. \\ Health & Wellness – Make the commitment to take charge of your personal health and wellness. The downtown \\
YWCA offers CBA members a competitive workplace/wellness package.
24 BarTalk / FEBRUARY 2012
displayads email: ads@BCcba.org
T: 604.448.0200 | www.wldtax.com
BarTalk Gets Results display Ad RATES
insert (all of B.C.)
Full Back Page $5,000
CBABC Members/Firms $1,440
We are Chartered Accountants who work with lawyers and nancial advisors to develop innovative US and cross-border tax strategies for clients with US investments and business operations.
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Our services include: • US Federal and state tax return preparation • Consulting on transfers to/from US • Acquisition of US real property
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Direct BarTalk advertising inquiries to:
Next deadline: March 2
Warren Dueck, FCA/CPA • Steve Flynn, CA/CPA • Laura McLeman, CA
3/17/11 3:03:12 PM
WCB & CPP
CBABC Email: email@example.com Tel: 604-646-7856 or 1-888-687-3404
GC 390 Howard Ave. Burnaby, B.C. V5B 3P8 Canada
Preferred Supplier of:
GOSAL & COMPANY BARRISTERS & SOLICITORS
Sarj Gosal B.A., LL.B.
254 - 12899 76th Ave. Surrey, BC V3W 1E6
Associate – Insurance Defence – 2 ‐ 3 years Location: Vancouver Gowlings is a leading Canadian law firm offering a diverse range of services within IP, business and advocacy law to help organizations achieve their business objectives. Gowlings has over 750 professionals across offices in Montréal, Ottawa, Toronto, Hamilton, Waterloo Region, Calgary, Vancouver, Beijing, London, U.K., and��Moscow. As one of Canada's leading national law firms, Gowlings is – and strives to remain – a great place to work. Our people thrive in an open, respectful and collaborative environment that creates a high‐performance culture and fosters passion for their work and pride in their team's results. Gowlings Vancouver has developed a highly respected, specialized litigation practice, and is now seeking to add an associate lawyer to its insurance defence team. The ideal candidate will have 2‐3 years experience in a general insurance defence or motor vehicle liability environment, strong file management skills, and a desire to gain exposure to increasingly challenging work. Gowlings offers excellent associate level support, and this position offers long term career potential. For more information or to apply in confidence, please send your resume by email to: Ernie Gauvreau, General Manager firstname.lastname@example.org | Phone: 604‐443‐7607 | www.gowlings.com
FEBRUARY 2012 / BarTalk 25
barmoves Who’s Moving Where and When Caitlin Mason
has recently commenced articles at Devlin Gailus, a full service Aboriginal law firm offering litigation, negotiation, and business services to clients across Western Canada.
has joined Miller Thomson LLP’s Vancouver Office. Brent is a partner of the firm and a member of the Commercial Lending and Insolvency & Restructuring groups.
has joined Heritage Law, practising primarily family law. Prior to joining Heritage Law, Carlos practised with Quay Law Centre.
recently joined SNC-Lavalin’s Environment Division as Legal Counsel. Prior to joining SNC-Lavalin, Selina was an associate at Blake, Cassels & Graydon LLP.
has joined Heritage Law, practising primarily estate litigation. Jane has a wide range of litigation experience in the Lower Mainland.
has joined McCullough O’Connor Irwin LLP as an associate practising corporate and securities law.
is a new partner at Gowling Lafleur Henderson LLP’s Vancouver office. His practice focuses on real estate development, corporate/commercial and mining law.
has joined McCullough O’Connor Irwin LLP as an associate practising corporate and securities law.
Colleen Cattell, QC
has joined Fitzpatrick & Co. as a mediator and arbitrator in association with Gary Fitzpatrick, QC, David Whitelaw and Brian Ross.
a litigator admitted to practise in California and an articled student in B.C., has joined Hakemi & Company Law Corporation. Previously, she practised in Los Angeles at Howrey LLP.
26 BarTalk / FEBRUARY 2012
newmembers Space is at a premium and available on a first-come first-serveD basis so send your Bar Move (max. 30 words) and photo to CBA@BCcba.org now. FOR MORE BAR MOVES GO TO BARTALK ONLINE
James D. Kondopulos became a partner at Vancouver-based Roper Greyell LLP, effective January 1, 2012. He specializes in the practice of employment, labour and workplace human rights law.
Catherine Anderson has been appointed to the Board of the College of Registered Nurses of B.C. until August 31, 2012. Ms. Anderson is a corporate lawyer practising with McCarthy Tétrault LLP.
November & December 2011 Regular Members
Adam W. Alteen
Matthew D. Boulton
Andrea A. Glen
Aron P. Hochhauser
Aneez N. Devji
McCarthy Tétrault LLP Vancouver Woodward & Company LLP Victoria
Cobb St. Pierre Lewis Vancouver Hunter Litigation Chambers Vancouver McMillan LLP Vancouver
Richards Buell Sutton LLP Vancouver
Jonathan P. Hoyles
Sangra Moller LLP Vancouver
Blake, Cassels & Graydon LLP Vancouver
Adrian E. Gibson
McMillan LLP Vancouver
Ranjit Singh Khangura
Smart & Biggar / Fetherstonhaugh Vancouver
McCarthy Tétrault LLP Vancouver
Virginie Francoeur has recently joined Larlee Rosenberg, Barristers and Solicitors, where she continues to practise Canadian immigration and refugee law. In addition to English, Virginie can serve clients in French and Spanish.
Embarkation Law Group Vancouver W. David McEwan
Margaret Fitzpatrick is a new partner at Gowling Lafleur Henderson LLP’s Vancouver office. She is the office group leader for the Trade-Mark National Practice group in Vancouver.
Borden Ladner Gervais LLP Vancouver Samuel A. Hyman
McMillan LLP Vancouver
Cassady & Company New Westminster
Owen Bird Law Corporation Vancouver
Richard J. Sehmer
Matthew J. Lonsdale
Barinder S. Sidhu
replaces Brian Hiebert as Managing Partner of Davis LLP’s Vancouver office. Mark is a corporate and real estate lawyer, and has played a pivotal role in the firm’s growth.
Hunter Litigation Chambers Vancouver
Barbeau, Evans & Goldstein Vancouver
Jocelyn Le Dressay
Rush Ihas Hardwick LLP Kelowna
Fasken Martineau DuMoulin LLP Vancouver
Aneil P. Singh
Department of Justice Canada Vancouver Jonathan Tweedale
Gudmundseth Mickelson LLP Vancouver
Articling Students Leni T. Adriano
Lonsdale Avenue Law Centre North Vancouver Jonathan Armstrong
Lindsay Kenney LLP Vancouver
Lawson Lundell LLP Vancouver Murphy’s Law Nanaimo Caitlin E. Mason
Devlin Gailus Victoria
Bryan A. Millman
Gowling Lafleur Henderson LLP Vancouver
To view all new \\ members, including Law Students, please visit www.cba.org/bc/
bartalk_11_15/02_12/ membership.aspx. FEBRUARY 2012 / BarTalk 27
DI F F E R E N T
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