Page 1

Newsletter of the Canadian Bar Association (BC Branch)

The Sale of BC Online... A quiet sale amidst concerns for privacy, confidentiality, access and cost

October 1997 Vol. 9 • No. 5

INSIDE President's Message

3

Section Talk

5

Executive Director's Column

9

Tommy Tao:: Lawyer and Activist

10

Guest Column: Brian Tkachuk

12

Benevolent Fund

13

Lawyers for Literacy

14

Letters to the Editor

16

Practice Talk

17

Legislative Update

19

The Changing Face of Legal Practice

27

September Branch News

32

Outside the Lower Mainland in BC call us TOLL FREE:

1·888·687·3404

t's no surprise that very few people know much about the p roposed sale of BC Online. The media have barely noticed, the general public is completely unaware, and only a very few interested observers -both within and outside the legal profession- know what might happen to BC Online in the hands of a potential buyer.

fund s for the sale by March 22, 1998. Clearly, the sale of BC Online is seen as a viable way to inject needed dollars into the government' s General Revenues and thus provide for a healthier bottom line within this fiscal year.

There are important ramifications to this sale, both for lawyers and for the public we serve. Particular issues of concern include privacy and confidentiality, accessibility of information, and the The buyer group potential for increased or could use their new inequitable costs. In addition, some of the bidding groups information capab i Iity include companies which to the benefit of title could use their new insurance or other information capability to the competitive services benefit of title insurance or other competitive services.

What is BC Online? It is the electronic "gate-way" service which provides access to 11 major government databases such as Land Titles, Corporate Records and the BC Assessment Authority. It is an information distributor system which services more than 17,000 users and has projected net revenues of around $20 million this year alone. Law firms comprise approximately 20% of all BC Online accounts and lawyer-related actitivies account for 70% of all transactions. Other major user groups include search companies, financial institutions, real estate agents and auto dealers.

On August 7, 1997 a Request for Proposal (RFP) document was released, offering a seven-year renewable license to operate BC Online. Interested buyers submitted their bids by September 30, 1997. A key requirement of the RFP is that the winning bidder must submit the

The RFP states clearly that the purchaser will be allowed to create "value added services". This opens up a number of new possibilities in providing data, such as buying or adding new data to the existing data collection; generating new kinds of information from combined data sources (e.g. matching government data with third party credit, insurance, telephone or other data); providing new forms and presentation of data (e.g. combining title search data with document production, for use by other companies); providing new views of data (e.g. all the mortgages held by a particular bank; all Continued over


There's no question that fee increases are likely Continued from page I

Your views on the sale of BC Online are welcome -

and

necessary. We are in the initial stages of dea ling with this issue, and we need your input to help guide our efforts. Do you know of potential consequences we have not yet identified? Do you have any suggestions for how to address or mitigate those consequences? We encourage Letters to the Editor from anyone interested in contributing to the discussion of what the sa le of BC On line means to our Members. We wi ll publish a se lection of letters in the December issue of Bar Talk, but we will also ensure

the properties which have no mortgages registered, etc.); providing information about who is searching for what; or provide a "watch for change" service which responds to events like the registration of changed ownership or when a specific person becomes a director of a company. While lawyers may, in fact, benefit from some of these new services, there remain significant concerns regarding how this sale will affect the cost to lawyers of accessing BC Online information, and how the provision of new kinds and forms of information will affect the service capabilities of competing entities. In fact, depending on which interests are represented in the winning bid, lawyers may be dealing with a competitive- rather than neutral - agency at the helm of BC Online. Regardless of which bid wins, however, there is no question that the purchaser will have the opportunity to rationalize and increase fees . It is clear, even at this early stage, that the "loss" of annual revenue going into the Land Titles operational budget will almost certainly be reflected in future cost structures.

that the views of everyone who writes are communicated to the Members and Branch staff who are working on th is issue.

For the public, the issues are perhaps more subtle and complex. The existing system of data collection and provision includes some practical limitations to the kinds of information that can be generated. It is also based on the premise of an "owner" entity which has no motivation beyond the provision of data. Both

of these circumstances may change with this sale. Potential privacy issues include unauthorized intrusions into database information or account holder data, for purposes of the BC Online purchaser or its partners; unwanted solicitations based on newly available data search potentials (e.g. a third party mailing to all persons who have clear title to their homes); changes to the accessibility of public information (e .g . a listing of all directorships held by a specific person, rather than on a company-by-company basis); and the security of data sys tems in control of "foreign" and perhaps unaccountable corporate entities. So, where do we go from here? The Canadian Bar Association, BC Branch, and the Law Society are keeping a close watch on this issue. Both organizations have sent letters to the government informing them of our concern and continued attention to the RFP process and postsale regulation of BC Online. The Benchers have formed a small task group, headed by Emily Reid, the Branch's Immediate Past President, to look more closely at the ramifications of the sale. The CBA Real Estate Practice Issues Committee, chaired by Patrick Chen, and our Government Relations Committee, chaired by Ken Sarnecki, will also be actively involved in monitoring this issue and working with the Executive Committee and Branch staff to develop and implement an ongoing strategy in the coming months.

Legal Aid ... What's Going On? It is clear that the issue of legal aid is reaching

a critical point, both in terms of the funding available and the eligibility restrictions caused by lack of funding. The Access to Justice Coalition, representing a number of interested community agencies and lawyers, has issued a "call for support" to about 300 groups around the province. So far, more than 75 groups have responded by joining the Coalition's efforts.

2

Their goal: to hold the Government accountable for its commitment to allocate to legal aid the 7% PST collected on legal services. A Coalition Steering Committee meeting was held on October 8th at the BC Branch in order to develop the first steps in a strategy to "turn up the heat" on this issue. Watch for a BarFax update soon.

BarTalk Vol. 9 No.5


PRESIDENT'S MESSAGE

It's Tough Being a Lawyer These Days As law & lite become more and more complicated, a professional association becomes essential

KERRY-LYNNE D. FINDLAY

CBA (BC Branch) Pres ident 1997/98

he Branch Executive is looking forward to a challenging year ahead. As legal professionals, we are in times of change and transition . We are facing unprecedented assaults on our historical ways of practice: intrusions in our traditional areas; increasing demands of clients who want all work done "faster, cheaper, better"; declining prestige in the profession generally; and growing numbers of us competing for market share . Added to this mix are government policies on auto insurance, legal aid funding, courthouse closures, the P.S.T., etc. All of which ensure that we in the community of lawyers are kept busy jus t keeping our heads above the water. This, before we even get started talking about the d emands of family, mortgage payments, and the desire to contribute to our communities. The Canadian Bar Association in this province is uniquely placed to assist u s in our chosen career. These are not times to 'go it alone'. There are so many pressures to contend with, it would be impossible to protect and maintain what we have achieved to date if there was no vehicle for dialogue and no recognized body to put forward considered thought with the power of numbers behind it. Think about what we can learn from each other. The issues facing a family lawyer in the Kootenays vary little from those facing a family lawyer in New Westminster. Criminal Law is practised pretty much the same in Fort St. John as in Vernon or Prince Rupert, leaving aside availability of court dates and judges. We now have 64 active sections, each one a place to network with colleagues of similar interests, to learn and discuss new and proposed legislation, important recent cases, the view from the Bench, and related support services.

October 1997

When the government made it clear it was heading toward a form of No-Fault to manage auto insurance, the CBA was in the middle of that fight last year and this. The vast majority of our m embers (along with the majority of British Columbians) are not in favour of No-Fault. Wh en political decisions directly affect our fundamental beliefs in access to justice and threaten the livelihood of our m embers, we get involved. The retreat of government on this issue, at leas t in the short term, is unprecedented in North America. The mos t important lesson from last year's experience is the strength to be gained in partnering with others: The Law Society, The Trial Lawyers, The Defence Lawyers, and the The Coalition Against No-Fault. Each of these played its part, but collectively we were a forced to be reckoned with. If we can maintain and enhance these ties when the pressure is off, we will be all the better when adversity returns. Outreach to our members, to lawyer associations and to community organizations is one of our goals for this year. At our AGM on September 12,1997, and again at the Law Society's AGM later the same day, resolutions were brought to bring an end to universal membership in the BC Branch. This is not the first time this issue has been raised or pursued. The resolution at the CBA meeting was soundly defea ted. The resolution the Law Society meeting was defeated by an almost 3 to 1 majority. What a great vote of confidence! The debate on the motions was both healthy and informative. Most of the arguments in favour centered not around criticism of the CBA in any fundamental way, but around the desire of some not to be compelled to belong to any group. Those of us active in the CBA unders tand these sentiments completely. However, the original decision made 40 or so

3


PRESIDENT'S MESSAGE

"We are not mere technicians; we offer our clients so much more in terms of the security that comes with our knowledge and expertise."

years ago, to provide the benefits of membership to every lawyer in the Province, has been ratified by a vote at the Law Society annual meeting every year since. The majority continue to see membership in the CBA as valuable. There will always be those who participate in an organization, and those who do not. There will always be some who recognize benefit to membership, even if they do not actively participate themselves, and others who do not recognize any benefit. Our challenge to you, is to get involved. Find out what benefits of membership exist, and see what there is within the CBA for you. Some members' involvement is limited to Section meetings and mailings, but this in itself they consider worth the whole of the membership fee . Some members read the Legislative Update in BarTalk religiously, and think this is the best benefit of membership. Others like seeing other parts of Canada by taking their families and attending the national Annual Meetings held throughout the provinces each August. There are many ways to enjoy and gain from CBA participation. What are the issues before us as we go to press with this BarTalk issue? Title Insurance; the privatization by government of BC Online; the chronic underfunding of Legal Aid which has forced very unpopular decisions to be taken by the Legal Services Society Board, including tenders of block cases and leaving tariff lawyers to wait longer and longer to be paid; vigilance on the implementation by the government and ICBC of the traffic safety

4

measures, and looking at the re gulations attached to the legislation which are now being formulated; the intense lobbying by Notaries Public to be granted the right to handle probate and incorporations; the implementation of Rule 65 in Vancouver and other Court initiated policies dealing with case management, pretrial procedures, & mediation; monitoring the move away from court reporters in trials to dependency on recording apparatus; continuing difficulties faced by women in the profession; encouraging greater multicultural participation in Bar activities, and the list goes on. There is much to do, and much that can be done, if we work together. We belong to a profession. We are not mere technicians; we offer our clients so much more in terms of the security that comes with our knowledge and expertise. We are proud contributors to our community, both inside and outside legal circles . We are parents, children, aunts & uncles, brothers & sisters, taxpayers, business managers, spouses, partners, employers & employees, football & soccer coaches, hockey moms, fund-raisers, politicians, teachers ... but our diversity does not mean that we are not also an important part of the whole. The CBA is the most logical choice for the channeling of our energies when it comes to professional issues, because we each have more than one role to play, more than one responsibility we have taken on. It is good to know that there is a vital organization in place there to serve u s. Heaven knows, we could all use a hand.

BarTalk Vol. 9 No.5


LEGISLATIVE UPDATE

ment and growth in the tomism industry, to increase revenue and employment in that industry tlu-oughout BC and to increase the economic benefits generated by the indush-y. Members of the board of directors are to be appointed by cabinet, however at least 10 of the 15 board members must be individuals reconu-nended by the board as representatives of the tourism indushy The Hotel Room Tax Act, R.S.B.C. 1996, c.207 is amended to provide that 20.625% of the existing hotel room tax (1.65% out of 8%) will be used by the government to raise revenue for the corporation's purposes. Consequential amendments are made to the Financial Information Act, and Freedom of Information and Protection of Privacy Act. Act, except sections 22-24 in force April I, 1997; sections 22- 24 (amendments to the Hotel Room Tax Act) may be brought into force by regulatir;m effective April I, 1997, on request by resolution of the cmporation Victims of Crime Act, R.S.B.C. 1996, c.478, provides that offenders must pay a victim smcharge levy when they pay fines under the Offence Act and other prescribed enactments. section I of the Supplement to the Act (as amended by the Offence Amendment Act, 1997, S.B.C. 1997, c.IO), in force July I, 1997 REGULATIONS TO NOTE

Parole Act, B.C. Reg. 61/93, the Parole Act Regulation is amended, providing that for review of the case of an inmate, information to be considered by the board must be provided to the inmate and adding provisions relating to review without a hearing to cancel or change a condition of day parole or full parole. 路 B.C. Reg. 192/97 effective June 12, 1997 Securities Act, B.C. Reg. 477/95, the Registration Transfer Rules, B.C. Reg. 479/95, the Securities Rules, B.C. Reg. 497/95, the Rule Making Procedme Regulation and B.C. Reg. 478 I 95, the Securities Regulation are revised and superceded. B.C. Regs. 193197 and 194197 effective June 12, 1997; B.C. Regs. 195/97 and 196197 effective June 17, 1997 Victims of Crime Act, B.C. Reg. 214/97, the Victim Surcharge Levy Regulation is made, providing that fines imposed under every B.C. enactment are subject to the victim surcharge levy and that the levy is an additional 15% of the amount of the fine.

NEW BILLS TO NOTE

At the time of preparing this article, (July 11, 1997 ), the following bills had received first reading but had not yet received royal assent. Builders Lien Act, (Bill 38), repeals The Builders Lien Act, R.S.B.C. 1996, c.41, and provides a lien for payment of money owed to contractors, subcontractors, workers and material suppliers. The bill introduces multiple levels of holdback, whereby all persons making payment under a contract or subcontract retain a holdback of 10% of the value of the work or material provided or 10% of payment made on account. No holdback may be retained from a worker, material supplier, architect or engineer. Money received to pay for work or materials related to the project are subject to a trust in favour of subcontractors, material suppliers and workers. The bill provides the priorities for the distribution of holdback funds to claimants and allows for early release of holdback funds in the case of completed subcontracts. Lien claimants have 45 days to file a lien and the holdback period is 55 days. The time at which these periods begin is set out in the bill. Filing procedures have been amended. Lien claims may be removed from an owner's title through payment into comt. Pmchasers of homes may retain a holdback from the seller to discharge liens which may be filed after the sale is completed. Many other changes from the previous act have been made. Transitional provision is made for projects which are under way when the act comes into force. Consequential amendments are made to the Condominium Act, Expropriation Act, Land Title Act, Property Transfer Tax Act and Repairers Lien Act. The act will be brought into force by regulation.

CAA OFFERS DISCOUNT FOR CBA MEMBERS CBA members can enjoy discounts of up to 25 per cent on fees for membership in the Canadian Automobile Association. If you're interested, the number to call is 1-800-341-2226. New CAA or BCAA members can call anytime and shou ld ask to be put on the CBA CORPORATE account. Current CAA or BCAA members should

ONLY call once they have received their renewal notice in the mail-usually one month before their membership expires-and ask to be transferred to the CBA CORPORATE accounting. As a CBA member, the amount of discount you enjoy will depend upon the plan you choose and whether you are a new member or a renewal.

Family Maintenance Enforcement Amendment Act, 1997, (Bill 32), amends the Family Maintenance Enforcement Act, R.S.B.C. 1996, c.12, changing the definition of "spouse" to include same gender marriages and providing for additional enforcement methods including providing for enforcement of the maintenance debt against a closely held corporation in certain circumstances, refusing to issue or renew a driver's licence to a defaulting debtor in certain circumstances and allowing a maintenance order to be disclosed to a credit reporting agency in prescribed circumstances. The act will be brought into force by regulation. Continued over

effective July I, 1997 August 1997

33


Legislative Update Continued from page 25

Family Relations Amendment Act, 1997, (Bill 31), amends the Family Relations Act, R.S.B.C. 1996, c.128, (a) changing the definitions of "spouse" and "parent" to include same gender relationships and providing that spouses who are not married to each other may make a marriage or separation type of agreement to have Part 5 - "Matrimonial Property" and Part 6 - "Division of Pension Entitlement" apply to them, (b) providing for the adoption by regulation of child support guidelines and providing that except in certain cases, child maintenance orders, consent orders and to the extent possible, interim child maintenance orders and variation orders will follow those guidelines and providing that child support has priority in package maintenance orders,

Branch Committee makes Submission on Unclaimed Intangible Property A Special Committee of the Branch, chaired by Executive Member MargaretOsh路owski and with members Allan Lester of the Banking Law Section, Diana Lowe of the Poverty Law Section and James Leith of the Business Law Section recently made a submission to the Ministry of Finance and Corporate Relations on the Legislative Discussion Paper "New Approaches to Unclaimed Intangible Property Administration in British Columbia".

Thanks to Members for Legislation and Law Reform Work The Legislation and Law Reform Committee would like to acknowledge the very great assistance provided by the following members: Kieran Bridge, Arthur Close, Mark Davies, Neil de Gelder, Greg DelBigio, Dale Doan, Ian Donald. son, David Donohoe, Bob Gill, Werner Heinrich, Donna Iverson, Michael Kale拢, Garry Kehler, Robert Kopstein, Allan Lester, Diana Lowe, Mayland McKimm, Allan Parker, Marina Pratchett, Eugene Raponi, Alan Robertson, Siobhan Sams, Paul Scambler, Howard Shapray, Catherine Warren and Carolyn Weiler.

34

(c) clarifying some of the provisions relating to division of pension entitlement, and (d)providing that information disclosed to a family court counsellor may be provided to a research project in a form that does not disclose personal information, and requiring that information about the assets or income of a respondent in a maintenance proceeding be disclosed. The act will be brought into force by regulation.

Miscellaneous Statutes Amendment Act, 1997, (Bill 22), includes amendments to (a) Court Order Enforcement Act, R.S.B.C. 1996, c. 78, establishing types of personal property which are exempt from seizure or sale, providing that a debtor's principal residence is exempt from seizure or sale if the amount of equity is below an amount to be set by regulation and authorizing cabinet to make regulations to add classes of personal property that are exempt from seizure and allowing different exempt amounts to be set for different persons or different classes of persons. These amendments will be brought into force by regulation. (b)Small Claims Act, R.S.B.C. 1996, c.430, providing that appeals for which notice of appeal is filed in the Supreme Court Registry on or after September 1, 1997, may only be taken from orders made in small claims court by a judge after a trial, and providing that an appeal is to be a hearing on the record based on alleged errors of fact or law, rather than a new trial. After the bill receives royal assent, the amendments will come into force on September 1, 1997.

Tobacco Damages Recovery Act, (Bill 37), provides an individual or a class of individuals or the government with the authority to bring an action against a tobacco manufacturer to collect health care and other costs resulting from disease caused by exposure to a tobacco product and requiring that such an action include a claim for recovery of the cost of health care benefits. A certificate of the minister setting out the cost of past and future health care resulting from tobacco related disease is conclusive evidence of that cost. A court may admit as evidence statistical or epidemiological information based on acceptable studies. No limitation period applies to actions commenced on or before December 31, 1998. Liability of several defendants may be based on contribution to the risk, where the BarTa lk Vol. 9 No. 4


plaintiff is unable to establish which defendant manufacturer caused or contributed to the disease. Where liability of manufacturers is otherwise established, the defendants are jointly and severally liable for damages, but have the right to bring an action for contribution. The act will be brought into force by regulation.

Traffic Safety Statutes Amendment Act, 1997, (Bill41), amends the (a)Motor Vehicle Act, R.S.B.C. 1996, c.318,

permitting the government's traffic safety initiatives; (b) Offence Act, R.S.B.C. 1996, c.338, authorizing violation tickets to be in electronic or paper format, enabling the use of photoradar, providing that a ticket must contain a statement setting out the consequences of failing to appear at a hearing to dispute or of not responding to the ticket; (c) In surance (Motor Vehicle) Act, R.S.B.C. 1996, c.231, providing that there will be no coverage in certain cases of injury or death

caused by acts of violence or in stolen vehicles, authorizing regulations respecting mediation in motor vehicle actions, with consequential amendments to the Court Rules Act, permitting rules to be made regarding the mediation process; authorizing regulations to require an insured to reimburse ICBC for some of the payment made by ICBC for damage caused by the insured and precluding insurers from offering indemnity insurance to cover this payment; with respect to accidents occurring after June 17, 1997, providing that recovery of past income loss resulting from an accident is to be paid on a net basis and providing how awards for past income loss are to be apportioned if more than one defendant is at fault for the loss; and requiring that a court grant a structured award in certain cases. Some provisions will come into force on royal • assent, others by regulation.

••••••••••••••••••••••••••••••••••••••••••••••••••••

Help support the Law for the Future Fund One billable hour from every member The Law for the Future Fund is calling on every member of the CBA to contribute one billable hour to the Hourglass Campaign. Since 1984, the Law for the Future Fund has helped finance more than 35 innovative and timely research projects, dealing with issues such as the independence of administrative tribunals, law and ethics in health care allocation, recodification of the Criminal Code, gender and racial equality, and the Systems of Civil Justice Task Force. To make your contribution, please complete t his pledge card, cut it out and return it with your cheque, VISA or Mastercard number to the CBA at 50 O'Connor Street, Suite 902, Ottawa, Ontario, K I P 6L2. You will receive an official receipt in the mail.

Your support makes a difference.

Hourglass Campaign Pledge Yes, I support t he Law for the Future Fund's Hourglass Campaign. My gift is:$_ _ _ __

Date: _ _ _ __

Signature: _ _ _ _ _ _ _ _ _ _ _ _ __ The above gift is to be held by the Canadian Bar Law for the Future Fund for a period of not less than I 0 years.

Payment: Enclosed is a cheque payable to the Canadian Bar Law for the Future Fund.

D VISA D MASTERCARD Card#'--_ _ _ _ _ _ _ Exp._ _ _ __ Name: _ _ _ _ _ _ __ __ _ _ __ Address:_ _ _ _ _ _ _ _ _ _ _ __ Please return to: Canadian Bar Association 902-50 O'Connor, Ottawa ON KIP 6L2 Co11s lituted as a body corporate ami politic i11 accordance with the Canada Corporntio11s Act fl/1(1 receiued Letters Pnte11f

0 11

Nov. 30, 1984. LFFF is a

registered cllnrity witl1 Reve11ue Cn 11ndn No. 0692848-23-10 .

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ••• • • • • • • • • • • • • • • • • August 1997

35


There's no question that fee increases are likely Continued from page I

Your views on the sale of BC Online are welcome- and necessary. We are in the initial stages of dealing with this issue, and we need your input to help guide our efforts. Do you know of potential consequences we have not yet identified? Do you have any suggestions for how to address or mitigate those consequences? We encourage Letters to the Editor from anyone interested in contributing to the discuss ion of what the sale of BC Online means to our Members. We will publish a selection of letters in the December issue of Bar Ta lk, but we will also ensure

the properties which have no mortgages registered, etc.); providing information about who is searching for what; or provide a "watch for change" service which responds to events like the registration of changed ownership or when a specific person becomes a director of a company. While lawyers m ay, in fact, benefit from some of these new services, there remain significant concerns regarding how this sale will affect the cost to lawyers of accessing BC Online information, and how the provision of new kinds and forms of information will affect the service capabilities of competing entities. In fact, depending on which interests are represented in the winning bid, lawyers may be dealing with a competitive - rather than neutral - agency at the helm of BC Online. Regardless of which bid wins, however, there is no question that the purchaser will have the opportunity to rationalize and increase fees . It is clear, even at this early stage, that the "loss" of annual revenue going into the Land Titles operational budget will almost certainly be reflected in future cost structures.

that the views of everyone who writes are communicated to the Members and Branch staff who are working on this issue.

For the public, the issues are perhaps more subtle and complex. The existing system of data collection and provision includes some practical limitations to the kinds of information that can be generated. It is also based on the premise of an "owner" entity which has no motivation beyond the provision of data. Both

of these circumstances may change with this sale. Potential privacy issues include unauthorized intrusions into database information or account holder data, for purposes of the BC Online purchaser or its partners; unwanted solicitations based on newly available data search potentials (e.g. a third party mailing to all persons who have clear title to their homes); changes to the accessibility of public information (e .g. a listing of all directorships held by a specific person, rather than on a company-by-company basis); and the security of data systems in control of "foreign" and perhaps unaccountable corporate entities. So, where do we go from here? The Canadian Bar Association, BC Branch, and the Law Society are keeping a close watch on this issue. Both organizations have sent letters to the government informing them of our concern and continued attention to the RFP process and postsale regulation of BC Online. The Benchers have formed a small task group, headed by Emily Reid, the Branch's Immediate Past President, to look more closely at the ramifications of the sale. The CBA Real Estate Practice Issues Committee, chaired by Patrick Chen, and our Government Relations Committee, chaired by Ken Sarnecki, will also be actively involved in monitoring this issue and working with the Executive Committee and Branch staff to develop and implement an ongoing strategy in the coming months.

Legal Aid ... What's Going On? It is clear that the issue of legal aid is reaching

a critical point, both in terms of the funding available and the eligibility restrictions caused by lack of funding. The Access to Justice Coalition, representing a number of interested community agencies and lawyers, has issued a "call for support" to about 300 groups around the province. So far, more than 75 groups have responded by joining the Coalition's efforts.

2

Their goal: to hold the Government accountable for its commitment to allocate to legal aid the 7% PST collected on legal services. A Coalition Steering Committee meeting was held on October 8th at the BC Branch in order to develop the first steps in a strategy to "turn up the heat" on this issue. Watch for a BarFax update soon.

BarTalk Vol. 9 No. 5


PRESIDENT'S MESSAGE

It's Tough Being a Lawyer These Days As law & life become more and more complicated, a professional association becomes essential

KERRY-LYNNE D. FINDLAY

CBA (BC Branch) President 1997/98

he Branch Executive is looking forward to a challenging year ahead . As legal professionals, we are in times of change and transition. We are facing unprecedented assaults on our historical ways of practice: intrusions in our traditional areas; increasing demands of clients who want all work done "faster, cheaper, better"; declining prestige in the profession generally; and growing numbers of us competing for market s hare. Added to this mix are government policies on auto insurance, legal aid funding, courthouse closures, the P.S.T., etc. All of which ensure that we in the community of lawyers are kept busy just keeping our heads above the water. This, before we even get started talking about the demands of family, mortgage payments, and the desire to contribute to our communities. The Canadian Bar Association in this province is uniquely placed to assist us in our chosen career. These are not times to 'go it alone'. There are so many pressures to contend with, it would be impossible to protect and maintain what we have achieved to date if there was no vehicle for dialogue and no recognized body to put forward considered thought with the power of numbers behind it. Think about what we can learn from each other. The issues facing a family lawyer in the Kootenays vary little from those facing a family lawyer in New Westminster. Criminal Law is practised pretty much the same in Fort St. John as in Vernon or Prince Rupert, leaving aside availability of court dates and judges. We now have 64 active sections, each one a place to network with colleagues of similar interests, to learn and discuss new and proposed legislation, important recent cases, the view from the Bench, and related support services.

October 1997

When the government m ade it clear it was heading toward a form of No-Fault to m anage auto insurance, the CBA was in the middle of that fight last year and this. The vast majority of our members (along with the majority of British Columbians) are not in favour of No-Fault. When political d ecisions directly affect our fundamental beliefs in access to jus tice a nd threaten the livelihood of our members, we get involved. The retreat of government on this issue, at leas t in the short term, is unprecedented in North America. The mo s t important lesson from las t year's experience is the strength to be gained in partnering with others: The Law Society, The Trial Lawyers, The Defence Lawyers, and the The Coalition Against No-Fault. Each of these played its part, but collectively we were a forced to be reckoned with. If we can maintain and enhance these ties when the pressure is off, we will be all the better when adversity rehtrns. Outreach to our members, to lawyer associations and to community organizations is one of our goals for this year. At our AGM on September 12,1997, and again at the Law Society's AGM later the same day, resolutions were brought to bring an end to universal membership in the BC Branch. This is not the firs t time this issue has been raised or pursued. The resolution at the CBA meeting was soundly defeated. The resolution the Law Society m ee ting was defeated by an almost 3 to 1 majority. What a great vote of confidence! The debate on the motions was both healthy and informative. Mo st of the arguments in favour centered not around criticis m of the CBA in any fundamental way, but around the desire of some not to be compelled to belong to any group. Those of us active in the CBA unders tand these sentiments completely. However, the original decision made 40 or so

3


PRESIDENT'S MESSAGE

''We are not mere technicians; we offer our clients so m uc h more in terms of the security that comes w ith our kno wledge and expertise."

years ago, to provide the benefits of membership to every lawyer in the Province, has been ratified by a vote at the Law Society annual meeting every year since. The majority continue to see membership in the CBA as valuable. There will always be those who participate in an organization, and those who do not. There will always be some who recognize benefit to membership, even if they do not actively participate themselves, and others who do not recognize any benefit. Our challenge to you, is to get involved . Find out what benefits of membership exist, and see what there is within the CBA for you. Some members' involvement is limited to Section meetings and mailings, but this in itself they consider worth the whole of the membership fee. Some members read the Legislative Update in BarTalk religiously, and think this is the best benefit of membership. Others like seeing other parts of Canada by taking their families and attending the national Annual Meetings held throughout the provinces each August. There are many ways to enjoy and gain from CBA participation. What are the issues before us as we go to press with this BarTalk issue? Title Insurance; the privatization by government of BC Online; the chronic underfunding of Legal Aid which has forced very unpopular decisions to be taken by the Legal Services Society Board, including tenders of block cases and leaving tariff lawyers to wait longer and longer to be paid; vigilance on the implementation by the government and ICBC of the traffic safety

4

measures, and looking at the regulations attached to the legislation which are now being formulated; the intense lobbying by Notaries Public to be granted the right to handle probate and incorporations; the implementation of Rule 65 in Vancouver and other Court initiated policies dealing with case management, pretrial procedures, & mediation; monitoring the move away from court reporters in trials to dependency on recording apparatus; continuing difficulties faced by women in the profession; encouraging greater multicultural participation in Bar activities, and the list goes on. There is much to do, and much that can be done, if we work together. We belong to a profession. We are not mere technicians; we offer our clients so much more in terms of the security that comes with our knowledge and expertise. We are proud contributors to our community, both inside and outside legal circles. We are parents, children, aunts & uncles, brothers & sisters, taxpayers, business managers, spouses, partners, employers & employees, football & soccer coaches, hockey moms, fund-raisers, politicians, teachers .. . but our diversity does not mean that we are not also an important part of the whole. The CBA is the most logical choice for the channeling of our energies when it comes to professional issues, because we each have more than one role to play, more than one responsibility we have taken on. It is good to know that there is a vital organization in place there to serve us. Heaven knows, we could all use a hand.

BarT all< Vol. 9 No. 5


Changes to Family Court Counsellor System

Shelley Bentley

uring a Westminster Family Law Subsection meeting Elizabeth Briemberg, senior family court counsellor with the Vancouver Conciliation Services office, spoke regarding the proposed changes to the family court counsellor system. She went on to outline the types of short reports ordered by the Court and to provide insight into the considerations involved in their preparation. Plans are to refocus family court counsellors so that 90% of their work will be to provide alternate resolution services, namely conciliation and mediation, rather than assessments under section 15 of the Family Relations Act. In addition, criteria for allocating services will be applied first to legal aid clients, second to working poor and then to others if any resources remain. There is currently an assessment project underway to establish qualifications for family court counsellors. The intent is to increase the quality of service provided. The counsellors will be promoting parental education, especially to deal with parenting problems arising from separation. The Supreme Court has developed a policy overthe last two years of ordering short reports from the Conciliation Office whenever possible, instead of full, in-depth investigations. The development of this policy involved consultation with the Conciliation office and the projected result will be a decrease by 40% in full reports ordered. There are two types of short reports: those under section 3 and those under section 15 of the Family Relations Act. Section 3 "Conciliation Reports" provide the outcome of conciliation. Section 15 Reports are short assessments prepared to assist the Court in

October 1997

making interim orders or to provide screening and recommendations for further procedures. SECTION 3 F.R.A. RE PO RTS

These reports are made on the outcome of conciliation sessions with the parties and with their agreement. Typically they indicate the contact between the family court counsellors and the parties and which issues have been resolved and which are outstanding. If both parties consent the terms of any agreement reached will be disclosed. Other information obtained from the parties during the conciliation process will not be disclosed to the Court unless both parties waive confidentiality in writing. Where disputed issues are unresolved, the report may recommend ways to proceed such as by a hearing, by having an investigative report prepared, by obtaining a psychological assessment, etc. This type of report can be given orally or in writing. SHORT SECTION IS REPORTS

This kind of short report can be ordered for a variety of reasons: 1. To investigate a specific issue such as the

views of the children, an interim custody plan, a particular access arrangement e.g. overnight access or holiday access, necessity and possibilities for supervision of access. 2. To recommend to the Court when a full investigation is requested by counsel, whether an alternative strategy such as conciliation, a short focused report, a psychological assessment and / or the appointment of a Child Advocate etc. might be more appropriate. Continued over

5


SECTION TALK

Changes to Family Court Counsellor System Continued from page 5

cross/sections The 1997-98 Section Activity is underway and 51 meetings have already taken place throughout the province. Sixty-four Sections are busy planning interesting and informative meetings to help you keep abreast of current developments of the law and share experience and expertise with other members practicing in your area of law. If you are registered in any of the BC Branch Sections, you are automatically registered in the corresponding National Section at no charge. It is not too late to enroll' If you have misplaced your enrollment form or have not recieved a copy. please contact the Branch office and one will be faxed to you immediately. cross/sections welcomes news from any CBA section. If you've got a story to tell, call Fran Hodgkins at 687-3404 or 1-888-687-3404 if you're outside the Lower Mainland.

These short assessments and reports are intended to provide limited but timely information for the court. They are a short, fast intervention to establish the primary problem concerning the children and if it is amenable to conciliation. The reports must provide information about the needs of the children, what they have to say about their situation, whether it is as bad as it looks from the affidavit material, what can be put in place to meet those needs. Such a report may have to be prepared on the day ordered or within two or three weeks or 30 days at the most. The strategy for these assessments is to limit the investigation to the issue identified. Where the views of the child are required, the most that needs be done in the u sual situation is to interview the parents together or separately and all children individually. The intent is to learn of the children's concerns, views and experience of the present situation and of their hopes and fears, if possible. Only if there is doubt as to the reliability of the views given by the child will seeing him or her in a different setting be considered. The counsellor might also call a professional who knows the child well e.g. teacher, psychologist. If the child is over 12 years old it is often helpful to interview the child individually and with the parents jointly. Children over school age can be interviewed in the office or at home, while younger children are better interviewed in their bedrooms at home. If abuse is a concern, contact with a professional such as an alcoholism counsellor, social worker or psychologist involved is advisable to understand the extent of the problem. In many respects, the form the short assessments take is similar to the conciliation work under section 3. Counsellors see children and have limited contact with other professionals, while helping parents reach agreements over planning for their child. The difference is that for the s.15 reports, it is known by the parties from the outset that on completion a report is to be made to the Court and the information shared is not confidential. This does not alter the character of the

6

conciliation style sessions at the Supreme Court level to any significant degree because so many of the damaging allegations are already before the Court in affidavit form. To achieve valid assessments, in Ms. Briemberg' s opinion, the counsellors need to begin to heal reopened wounds resulting from these affidavits, in order to promote forward thinking and planning by the parents. For this the conciliation mode is essential. In writing the s.15 report, the informants must be listed as in full reports. If agreement has been reached on the issue under investigation, the report will be similar to a conciliation report with a short assessment of the child and appropriateness of the plan in meeting the child's needs, if it seems necessary to make sense of the agreement. If no agreement has been reached, the focus will be on the children's needs, views and concerns; and on the alternative options available for meeting those needs and the advantages and disadvantages of each. Sensitivity and common sense mus t prevail. Where it is impossible to make a recommendation in the time available, it is returned to the Court with a recommendation for a different procedure to achieve resolution of the issue. The counsellor must be prepared to tell it as he or she sees ite.g. mediation/ conciliation is indicated, the Ministry of Social Services and Housing should be involved, a psychological assessment or a full investigation is required, no access or supervised access should be permitted. Counsellors are advised to err on the side of protection of the children in this interim period. A fuller investigation will provide information for a more liberal recommendation if appropriate. It may be advisable in some cases to state that the recommendation is based on limited information due to time constraints. WHEN DOES THE PUBLIC HAVE ACCESS TO ENVIRONMENTAL ASSESSMENT REPORTS?

David Loukidelis of Lidstone Young Anderson and Mike Skinner of the Office of the Information and Privacy Commissioner were the speakers at a recent Environmental Law Section meeting. Mr. Loukidelis gave an BarTalk Vol. 9 No.5


SECTION TALK

overview of the 1993 Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c.165 ("the Act") and Mr. Skinner gave details of the Office of the Privacy Commissioner and went on to highlight some cases of note in the environmental area. The Act first came into force in 1993 and initially applied to all provincial governments and crown corporations. In 1994 it was amended to include school boards and municipal governments. The Act grants the public the right of access to any record which is in the custody and control of the public body. The goal is to create openness and accountability. A "record" is defined as any record in any physical medium; charts, graphs and essentially anything recorded in a material form. The exceptions are notes taken by a judge or quasi judicial body. A record is producible even if the public body does not have physical possession of it if the public body has control over it. Section 73 of the Act grants immunity from actions for disclosure of public records such as copyright infringement actions. The right of access is not absolute and there are limited exceptions under sections 11 to 22 of the Act. For instance, documents subject to solicitor I client privilege are not producible. As well, the doctrine of severance applies. If a line or paragraph in the document is found not to be producible then the protected information is expunged but the balance of the record is produced. Section 14 provides that a public body may decline to disclose documents but it must be able to prove that it is in the public interest. Mr. Skinner explained that if the public body refuses to disclose or if a third party objects to disclosure a mandatory settlement procedure is followed. 95 percent of cases are settled through this procedure. The Commissioner has decided 165 cases under the new Act and often refers to Ontario Privacy Commissioner decisions and Ontario common law even though not bound by the principle of stare decisis. Section 78 of the Act provides that this Act prevails over all other legislation. So far the B.C. Supreme Court has not overturned any decisions of the Commissioner under the Iudicial Review Procedure Act. Under Bill 26 and its regulations there will be a new Contaminated Site Registry. Mr. Skinner was of October 1997

the opinion that if any document was submitted to the Minister of Environment under the new Site Registry Regulations the public would have access to this information. In the summer of 1995 there was a trilogy of decisions of the Commissioner relating to environmental issues, predominantly the disclosure of environmental assessment reports, sampling and data. Order number 56, the Cowichan Preservation Estuary Society v. Fletcher Challenge dealt with the disclosure of sampling results taken by Fletcher Challenge after the Cowichan Preservation Estuary Society went on to the site and did its own testing and later submitted the results to the Ministry of Environment. Fletcher Challenge sought to protect its sampling results. The environmental group requested that the test results be disclosed citing the authority of the Act while Fletcher Challenge objected, relying on s.21 of the Act. Under s. 21 third party records will not be disclosed if they meet the following tripartite test:

LAW FOUNDATION GRADUATE FELLOWSHIPS, 1998-1999 The Law Foundation of BC awards up to four graduate fellowships of $12,500 each on an annual basis. The next deadline for applications is January 5, 1998 for the 1998/99 academic year. To be eligible, an applicant must be pursuing full-time graduate studies in law or a law-related area at a recognized university in Canada,

1. The information is either;

a. scientific, technical, commercial or financial in nature or b. composed of trade secrets;

United States, or abroad . Applicants must be residents of British Columbia, or graduates of a BC law school, or members of the BC Bar. The

2. The information is supplied explicitly or implicitly in confidence;

Law Foundation Graduate Fellowship is not available for the graduate program at

3. There is a reasonable expectation that the information sought to be disclosed will harm the third party's financial interest or substantially affect its negotiation position. Under s. 25 of the Act, even if the third party can prove the three-part test referred to above, the Commissioner can disclose the information if the Commissioner feels that the public interest dictates that the information should be disclosed. The information was ordered disclosed because the Commissioner held that Fletcher Challenge would not be financially harmed by the disclosure of the information. The Commissioner also dismissed Fletcher Challenge's argument that no more information would be voluntarily supplied to the Ministry because the Ministry of Environment had a mandate under the Waste Management Act to compel production of this type of information.

USC as the Law Foundation makes a separate grant to this program. Please contact the Law Foundation at 1340-605 Robson Street, Vancouver, BC, V6B 5J3 or call [604] 688-2337 for an application form.

7


SECTION TALK

Changes to Family Court Counsellor System Continued from page 7

Calling All Senior Lawyers .. If you are a lawyer aged 55 or older, here's a place where you can meet your peers, talk about what's going on in law today, and (yes!) learn a thing or two. Call Mr. Robert Eades in Vancouver at 681-5874 if you are interested in finding out more about the Senior Lawyers Section .

In Order #57, The Dunbar Residents Association v. Chevron, Chevron had submitted environmental reports regarding a former gasoline station to the Ministry of Environment. The Dunbar Residents Association wanted the reports produced but Chevron objected. The Commissioner found that the information was scientific in nature and that it had been supplied under an implied expectation of confidence but that no financial harm would be suffered by Chevron and so ordered disclosure. In Order #67 the North Fraser Harbour Commission purchased a contaminated site relying on a consultant's site assessment reports. These reports were sought by a neighbour as the pollution had migrated from the purchased property onto the neighbour's adjoining property. The neighbour wanted to review the site assessment reports which had been submitted to the Ministry of Environment. The Ministry was willing to release the reports but the North Fraser Harbour Commission objected, relying under s.21 of the Act. It feared litigation from its neighbour. The Commissioner found that although the information was scientific, it was not supplied either explicitly or implicitly in confidence.

One other case of note is B.C. Tel v. Shell Canada (Order #130). In that case B.C. Tel applied to have environmental assessment reports on a particular site submitted by Shell Canada. B.C. Tel claimed that its telephone conduit cable equipment had been contaminated by hydrocarbons from Shell's former site. Shell submitted that the information should not be disclosed because B.C. Tel's cost of repairing the damaged sites not only involved at least one million dollars for one site, but could involve millions for other conduits which adjoined other Shell sites in B.C. Shell argued that B.C. Tel could commence an action and would be able to obtain these documents through the discovery process. The Commissioner ordered that the information not be disclosed because it was supplied in confidence and because of the serious financial harm that could result to Shell. These cases are just the kind of cases one would expect to see being brought forward as a result of the disclosure of information to the Contaminated Site Registry. It will be interesting to see if the goal of the Act, to provide openness and accountability, will prevail.

CBA Future of Canada Initiative At the CBA National Annual Meeting in August 1997, National Council approved a project known as the Future of Canada initiative. The project will consist of an interactive conflict resolution process that will bring together CBA members in a series of facilitated, branch-hosted sessions to discuss Members' values, identities and needs as they relate specifically to the future of Canada. A National CBA Committee, under the direction of Jeff Scouten of the BC Branch and Sylvie Devito of the Quebec Division, is currently working on designing the initiative, which will hopefully get underway in the spring of 1998. The Committee is currently seeking a Project Director to: lead the design of the initiative; manage the work of the Committee and its budget; work with professional ADR consultants; and assist in fundraising for the implementation phase of the project. This is a part time position (i.e. 2 weeks per month), beginning immediately and scheduled to conclude at the end of March 1998. Interested candidates with a background in ADR and project management experience should apply to: The Administrative Officer Canadian Bar Association 902, 50 O'Connor St. Ottawa, ONT KlP 6L2

Fax: (613) 237-0185 8

BarTalk Vol. 9 No.5


EXECUTIVE DIRECTOR'S COLUMN

Options For Lawyers We all need to know we have choices in our lives

BARRY CAVANAUGH Executive Director, BC Branch, Canadian Bar Assoc iation

ption. My dictionary defines the word as: choice; freedom to choose; an act of choosing. Surely one of the purposes underlying years of study, of working hard at the law, of trying to accumulate wisdom, wealth, influence and greater skills, is to have options. That element of freedom of choice is so fundamental to the human condition, so important to our sense of well-being, that our society's most severe punishment - imprisonment - centres around deprivation of that freedom. Options are a goal we all share, all understand .... yet, how often have we heard someone say ... have we said ourselves ... "I have no choice."? We all know lawyers who would like to get out, but who just don't know how, or who don't believe their skills enable them to do anything other than practice law in the usual way. And we all know lawyers who don't want to leave the profession, but would sorely love to change their practices ... to take more time off, or move into a different field of law, or innovate in the style of running their practice. Certainly, in our "real" lives, we all recognize the need for choice ... but in our professional lives, we often underplay, or fail to recognize that we need options. In many cases, we don't believe that we have them - a kind of imprisonment. We need to know that we can make changes in how we're working, in the nature of our practices, and even in our choice of profession. Often, we're ill equipped to make those choices, or convinced that we really have no freedom to choose. There are some nine thousand lawyers in British Columbia now, more than six thousand of them in the Vancouver area. That grows by several per cent annually, and our two law schools continue to draw full complements of students. Anecdotal evidence suggests a general decline in income in the profession, or at least a much greater work-effort to produce

October 1997

an equivalent income. There is greater competition from both within and outside the profession, and a sense of pressure on the traditional forms of practice. All this at a time when the very nature of lawyering has been changing so rapidly that many cannot keep pace, when laws and regulations proliferate to the point where a lawyer's daily reading has tripled or quadrupled in recent years, and when the artificial urgency created by faxes, EMail, cell-phones, voice-mail, and electronic filing have multiplied the pressure manifold. This changing reality of practice has had a painful human cost. Not long ago, a friend of mine mentioned a U.S. study which suggested that more than 30% of lawyers would choose to leave the profession if they believed they could. Why do so many of us feel like we have no options? Why don't we feel free to act? Perhaps our law schools and professional bodies have let us down, by not preparing us to look at our careers in a way that allows us to believe that we can exercise choice, that we have the ability to make changes at ALL stages of our life that will give us more satisfaction in our careers. We're a profession famous for our "nose to the grindstone" approach to work, well known for our often single-minded devotion to the law, to our practices, to our clients. That ability serves us well, but sometimes it obscures our view of our own options. The CBA, as an organization which seeks to aid and serve lawyers in all aspects of our lives, has a role to play in helping us remember what it's all about, and to help us see that we still have choices. Over the next few months, we will be developing a program called "Options for Lawyers". We believe that lawyers need to talk about, learn about, and explore new ways of living our professional lives - to survive in a pressure-filled and competitive world, and to practice in a way that we can thoroughly enjoy. The freedom to exercise options begins with the freedom to engage in dialogue about it -let's begin!

9


LAWYERS IN THE COMMUNITY

Tommy Tao A leader and visionary in the Chinese Canadian community

We're looking for more outstanding lawyers If you know of a lawyer who has made a vital contri bution to life in his or her community beyond the law, please call BarTalk Editor Caroline Nevin at 687-3404 or, if you're outside the Lower Mainland, call our toll free line at 1-888-687-3404.

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hen you ask members of the Chinese Canadian community to describe lawyer, lecturer, columnist and activist Tommy Tao, the adjective most commonly used is "principled". "Tommy is a very principled and analytical person." says Mason Loh. "He looks at an issue and sees beneath the surface." Loh, who works with Tommy on the board of the United Chinese Community Enrichment Services Society (SUCCESS), dates Tommy's involvement with the community back to his days in UBC law school, when both men participated in the students' legal advice program. Graduating in 1981, Tommy has practised commercial, corporate and real estate law in Vancouver since 1982. From 1981-83, Tommy was the Director of the Chinese Cultural Centre (C.C.C.) of Vancouver which, through self-sufficient programs and minimal government funding, strives to pass on Chinese heritage to the younger generations of Chinese immigrants and to Canadians. Angela Kan, the present Executive Director of the C.C.C. comments "Tommy is a man of integrity, a man of principle, particularly in politics. He sticks to his beliefs and is very community-minded." Kan is aware that the high concentration of Chinese in particular areas of Vancouver can trigger racial tensions. The Chinese Canadian community is, however, well organised in its efforts to reach out to other communities . In his involvement with such issues, Tommy has emphasised links between the Chinese and English media, supporting initiatives such as the Ming Pao, a bilingual forum commenting on public affairs; the publication of articles from members of the Chinese Canadian community in newspapers such as the Vancouver Sun; and the addition of the category of "Best Reporting of the YearChinese Language" in the annual Jack Webster

Awards honouring outstanding journalists in British Columbia. As Vice-Chairman of Services and Programs at SUCCESS, Tommy looks at the new services direction and makes policy suggestions to the Board of Directors. Funded equally by government and private sources, SUCCESS was started initially to help newly-arrived Chinese immigrants. It has since expanded its ambit to provide services to all immigrants, including employment training, family counselling, youth and senior services, services for women, immigrant settlement, and involvement in education and health issues. In addition, Tommy is perhaps best known for spearheading the Chinese Canadians' claim for redress of head-tax and exclusionary legislation . When Chinese immigrants first arrived on Vancouver shores, they were primarily here to fulfil the need for cheap labour on the railways. Upon completion of this in 1885, the government imposed a head tax of up to $500 to discourage further immigration. This was followed by the cessation of all further immigration of Chinese people. In response to the obvious discrimination and compensation issues that arose from the 37-year imposition of such a tax, Tommy was a key speaker at public meetings on the legal and moral issues of claims for redress. He wrote widely on the issue, including an article entitled "The Head Tax Issues: The Case for Compensation" . He was also one of the very few outspoken voices in the Chinese community in support of the Japanese Canadian redress issue. In the course of speaking out on this issue, Tommy engaged in lively political and television debates with old colleagues such as Nelson Tsui, a fellow lawyer and prominent member of the Chinese Canadian community.

BarTalk Vol. 9 No. 5


LAWYERS IN THE COMMUNITY

"Mission, heart, will and competence"

Tommy Tao

Tommy argued that compensation should be paid, in the form of the returned tax plus interest. Governments have been consistently unwilling to revisit the issue, not only because of the large sums of money involved but because of the potential for a floodgate of related claims. Tommy and Nelson are often seen on opposite ends of the political spectrum and this issue proved no exception. Nelson, declaring that the Chinese Canadian community should look to the future, saw the pursuit of such figures from the government as fruitless. Tsui comments that while he sees his colleague as an incurable idealist, one must nevertheless admire such adherence to principles: "It is easy to respect Tommy's sense of belief and desire to affect change in a peaceful democratic way, rather than condemning people. This can be difficult to do in the Chinese community."

Tommy's community activism has led him, naturally, into the realm of politics. He was involved in protests against the Tianamen Square massacre and, as Chairman of the China Forum 1997 Rule of Law Program, organised an international conference at UBC on the development of the rule of law in China. His involvement with local politics began with his assistance to politician Margaret Mitchell in the early 80s. Tommy's affiliation with the NDP's platform on human rights and equality is consistent with his work in the community . "He's not one to shy away from controversy." says Mason Loh, "Even in the face of strong negative opinion, he charges ahead if he believes in something." Tommy ran in the 1993 election on the NDP platform. "He ran for the NDP at a time when they were going to clearly lose. Against the advice of his friends, he re路mained loyal to his beliefs and his party," said Nelson. Angela Kan adds "Some things are too idealistic for this world. The NDP does not enjoy particularly wide support in the Chinese Canadian community, so Tommy is often fighting a lonely battle." After the election, Tommy resisted attempts to draw him back into federal politics and instead chose to concentrate on the myriad community activities to which he had commitments, such as his support for the arts. He continues to work toward putting the ideals of multiculturalism into practice, through activities such as the BC Chamber Orchestra - a newly formed bicultural community orchestra group comprised primarily of recently arrived immigrants performing a diverse mix of Western and Chinese classical music. However, there seems little doubt that Tommy will continue to comment actively on politics, at a community, federal and international level. As Mason Loh comments, "Not everyone agrees with the position he takes, but it can't be denied that he stands up for what he believes in and for that he gets a lot of respect and admiration from the community." Nelson Tsui affirms that "Tommy, despite his age, retains a sense of idealism, in terms of equality issues, living standards, fairness to women and treatment of employees. If he has an agenda, it's to promote idealism." The experience Tommy has in terms of SUCCESS, CCC, the Chinese Benevolent Society, and his political and community work, allows Angela Kan to describe him as "one of the key people working to make it a better community." She adds, "Further, he has the mission, heart, will and competence to do it." -Justine Wiltshire, UBC Lnw Student October 1997

II


Cooperation NOT Incarceration: Key to an Effective Criminal Justice System in Canada n many parts of the world there is a general increase in the public's overall fear of crime and a public perception, in most jurisdictions, that sentencing, correctional and release decisions are unresponsive to community expectations. There is also an over-reliance on the criminal justice system, and in particular incarceration, to deal with some basic societal problems. In many instances, the response by authorities has been to legislate changes, such as minimum and mandatory prison sentences, in order to curtail some of the discretionary authority maintained by decision makers such as judges, correctional and parole board officials. The net result of these factors is extreme prison overcrowding and an overall deterioration of prison conditions. This, together with the lack of credible pre-trial and post sentence community alternatives, presents insurmountable problems for many correctional agencies. Housing these offenders who need not be incarcerated and who could be dealt with more effectively through other viable options in the community only increases the burden on the correctional system.

I Brian Tkachuk, Director of the Sentencing and Corrections Program at the International Centre for Criminal Law Reform and Criminal Justice Policy, is on exchange ass ignment from the Correctional Service of Canada with whom his career spans the past 24 years

Guest columnists welcome If you'd like to comment on recent developments in the law or legislation, we'd like to hear from

Canada is not immune from these problems and in fact stands at a critical juncture in its criminal justice history. The majority of us who work in the criminal justice field recognize that, should recent trends in criminal justice continue, the correctional populations in Canada will not be sustainable from both a social and a fiscal perspective. Today Canada spends 1.5 billion dollars per year on the administration of adult custodial sentences and maintains the second highest rate of incarceration amongst western democracies, exceeded only by the United States.

you. Please call BarTalk Editor Caroline Nevin at 687-3404 or, if you're outside the Lower Mainland , call our toll free line at 1-888-687-3404.

12

Beyond the issue of escalating prison populations there is an even greater concern about whether our justice system is effective and satisfying. There is increasing public scepticism about the use of incarceration as jails do not appear to be giving people what they are seeking most. Canadians need a system that responds to the needs of victims and helps them heal, they want offenders to be held accountable for their actions while being afforded effec tive and meaningful treatment,

and they want a system that is responsive to the causes of crime. Again, this is a view that is shared by many who work within the criminal justice system. If Canada is to avert a major cns1s in its correctional systems, it is recognized that a number of coordinated strategies must be pursued including a combination of policy changes, legislative reform, public information, viable community options and alternatives, and new partnerships.

This past March, a national symposium on Restorative Justice was held in Vancouver. Although the primary focus of the symposium was to gain widespread acceptance of Restorative Jus tice practices as a viable alternative to incarceration, I believe that a great deal more was achieved. This symposium was attended by a delegation of 215 individuals including judges, crown prosecutors, defence lawyers, police, corrections and parole board officials, and individuals and representatives of non-government organizations active in criminal justice from each of the provinces and territories. Victim representatives, senior government officials and political leaders also participated in the symposium. Aside from the broad representation of organizations and individuals, the success of the symposium can be attributed to the fact that it was a "working" event, designed to build momentum for change in Canada. This symposium was only the first step in the planning for follow-up regional events to build awareness and support among local groups and individuals for the use of restorative justice in their communities. Several of these regional events have since taken place, providing further testament of the symposium's success. This symposium, which itself was the product of a unique partnership between government and non-government organizations, stands as an example of the partnerships that can be developed and the cooperative approach that can and must be taken if we are to achieve a a complete and satisfying Criminal Justice System for Canada. We cannot rely on incarceration alone.

BarTalk Vol. 9 No. 5


Yes! A Benevolent Fund At Last A small contribution from all a big impact for those who need it. fter many years of talking and organizing support for the idea of a Bar Benevolent Fund, Law Society members voted overwhelmingly at the 1997 Annual General Meeting to add $20 to the annual Practice Fee for the purpose of providing capital for the Fund.

A

Why have we asked every lawyer in the province to contribute $20 a year? Lawyers have always been there for other lawyers on a personal basis - we all know someone who has had difficulties, and we've done what we could to help. But there is much more that can be done when we pool our resources. The real catalyst for the founding of the Bar Benevolent Association came when we were confronted with several situations where fellow lawyers needed help. One Westminster lawyer died of an illness he likely picked up in his work with young people in trouble with the law. The illness was fatal due to his own congenital problems; problems that made him basically uninsurable. His wife and young child were left with little in the way of financial provisions. The Westminster Bar rallied to support his family, and continue to do so to this day. Another lawyer was savagely attacked in a New Westminster court room, and fellow lawyers pulled together to help him during his recovery. A year ago, one of our members lost an ongoing battle with depression and took his own life. Uninsurable due to his mental illness, he left behind a wife, children and debts. The Okanagan Bar provided support to the family in response. So, while the idea of a Benevolent Fund had been around for a while, these three cases brought home to many of us the real need that exists for a concrete way to do more for our colleagues - to be there whenever we can, with dollars that make a difference. When we set up the Fund, we talked to organizers of other benevolent funds around the world. After looking at many different October 1997

funding system s, we decided to model our Fund after the Barristers Benevolent Fund and the Solicitors Benevolent Fund in Britain.

Terry La Liberte

We concluded that we would need a minimum of $1,000,000 in capital to properly fund a benevolent organization. We agonized over how to raise those funds. On our own, we had not been able to raise more than $20,000 per year. Yet we knew, because of exceptional efforts in individual cases, that lawyers are far more generous- what was needed was a focal point for their generosity and concern for their colleagues in crisis. We further concluded that if every lawyer contributed $20 for each of five years, we could have a viable Benevolent Fund. The $20 levy will show up in your Practice Fee total for this coming year. When you sign the cheque, take a moment to think about what those twenty dollars represent. We are too late to help some who have come before us, but one day a friend, a colleague, a wife or child will have the benefit of knowing that every lawyer in this province cared enough to give a little bit now, so that financial relief was available when it was most needed. This capital fund is, however, just the beginning. This summer the Vancouver Bar Association made the Benevolent Fund the cosponsor and beneficiary of the proceeds of their Annual Golf Tournament and have agreed to assist us in future fund raising efforts. It is in this way that we will be able to sustain the Fund and expand our efforts. Accordingly, we would request the all the County Bar Associations consider similar commitments so that each area can participate and contribute to our Fund.

"It takes $1,000,000

to properly fund a benevolent organization"

Individual and firm donations will of course be required to fully fund any meaningful effort. But, we have, with your initial support and encouragement, made an incredible start. On behalf of the Bar Benevolent Association- and those who might have some cause to access this Fund in the future - I thank you for helping to make the idea of a Benevolent Fund a reality. 13


Improving the Way You Communicate Lawyers for Literacy Proj ect makes a difference to lawyers and their clients free, two-hour workshop by the Lawyers for Literacy Project results in increased client satisfaction, say three lawyers in B.C. An initiative of the B.C. Branch of the CBA, the Project helps you improve and adjust your communication practices to fit the reading abilities of clients. You learn to identify clients with limited literacy skills, evaluate your firm's responsiveness to such clients and adopt improved communication techniques.

A

Here, Rosalyn Manthorpe, Tim Louis and Wynn Lewis share insights they gleaned from Lawyers for Literacy and the changes they've made to their practices. RosALYN MANTHORPE

Ever since she started her own law firm in Surrey five years ago, Rosalyn Manthorpe has believed in the value of clear communication. "My word processing system wasn't compatible with the new computer system I bought, so I had to do all my precedents from scratch," she says. "I decided then that everything that went on had to be in plain language." Her logo banner even says : No legal jargon. We talk to you in plain language. But Man thorpe was still interested in seeing what she could learn from the Lawyers for Literacy Project. Cheryl Stephens, a lawyer and plain language consultant, and Janet

14

Dean, a communications and adult education consultant, spoke to Manthorpe Law Offices over lunch a few months ago. "They were talking to the converted, but it was still shocking to find out how many people function at low literacy levels [almost half of all Canadians]," recalls Manthorpe. "We picked up many good tips." Making more use of DialA-Law was one. "So many people are at sea when it comes to understanding the law . And here' s this great service I now regularly refer clients to for an explanation." Developing a greater reliance on oral and non-verbal skills was another. "I make more telephone calls than I did before," she says . "And I use more diagrams to depict contractual relationships or the connection between companies ." She also seeks more feedback. "I ask clients to repeat what I've said in their own words to see if they do in fact comprehend." "If I can shift an understanding of the legal process and the responsibility for making informed decisions to my clients, then I feel comfortable that they will value my work."

So far, that has proved true . In a recent client survey undertaken by the firm, the most common answer to the question: "What things about dealing with us do you like?" was: "Explain things in easy-tounderstand language."

BarTalk Vol. 9 No.5


WYNN LEWIS

On the recommendation of fellow partner and Bencher Trudi Brown, Wynn Lewis, a partner in the 11-lawyer firm of Horne, Coupar in Victoria, invited Stephens and Dean from Lawyers for Literacy to speak to them. "It brought horne for all of us how so many people are unaware of or are embarrassed by their own lack of literacy," she says. "We're in a service industry. If we can't communicate effectively to clients or they can't communicate to us, then we're not doing our job."

TIM LOUIS

At the end of each file, Tim Louis & Company conduct a client satisfaction survey. One question asks: "How clear were the documents we provided to you?" The three-lawyer Vancouver firm consistently receives a rating of 9 or 10 out of a possible 10. "It's significantly higher than before we met with Lawyers for Literacy," declares Tim Louis. Like Manthorpe's firm, all support staff at Louis' firm attended their lunch-time session, a decision which Louis says was wise. "System-wide as an office, we're all more aware of and alert to people who have difficulty reading the written word, and we can look together for cues to identify them." Specific communication changes the firm has made include: • reviewing precedents to ensure they're in plain language, • developing non-print, visual pages for their Web site, • promoting Dial-A-Law among clients, and • arranging with the Legal Services Society to obtain a series of videos on various legal topics for loan to clients. "Perhaps PLI should address this issue too," adds Louis. "It makes sense that greater client satisfaction would be associated with fewer claims . Maybe firms could get certified as a 'plain language firm' and pay less in their annual insurance fees ." For a free literacy kit or to arrange a free seminar, call Lawyers for Literacy at 687-3404.

October 1997

The point that had the greatest impact on her concerned the statistics. "I wasn't aware that so many people have difficulty understanding things. And that it's not as simple as not being able to read or write." Lewis provides an example. Just recently, a family law client carn·e to see her with a notice of motion, affidavit, and property and financial statement from her ex-husband. "She threw the papers down on my desk and burst into tears. I asked her what was wrong. She explained that her ex-husband had given her these, but she didn't understand what they meant. It turned out she was dyslexic." Lewis consequently hand-wrote notes for her client in easy-tounderstand points that her client could take with her to court. (The client wanted to handle the chambers application herself.) "I might have done that anyway," says Lewis. "But I think I'm more sensitive to the issue now." Lewis also says their staff found the workshop helpful too. "They do a lot of estate work with people who've received gifts or inheritances, and they've sometimes not known how to deal with certain situations. They needed some of these tips, like cueing in when someone says, 'I'll have to take this with me to read at home."' As for making firmwide changes, Lewis says plans are in the works to redo their standard retainer letter in plain language. "Dealing with other ideas we have for incorporating literacy-friendly changes will also be discussed at our annual retreat in November."

IS


BarTa/k is published by the British Columbia Branch of the Canadian Bar Association, lOth Floor 845 Cambie Street Vancouver, BC V6B 5T3 TEL: (604) 687-3404

TOLL FREE: In BC, outside the Lower Mainland: 1-888-687-3404 FAX: (604) 669-960 I

o

o

o

BarTa/k Editor: CAROLINE NEVIN, Director of Communications 687-3404 cnevin@bccba.org Legislation & Law Reform Officer: ANN McLEAN (Victoria) (250) 598-2860 amclean@bccba.org Section Talk Editor: SHELLEY BENTLEY, L.L.B. CIBC TRUST CORP. 665- 1784

Editorial Board MARGARET OSTROWSKI, Chair joEWooo BARBARA BLUMAN BRUCE WOOLLEY

Š Copyright the British Columbia Branch of the Canadian Bar Association-1997.

This publication is intended for information purposes only and the information contained herein should not be applied to specific fact circumstances without the advice of counsel. The BC Branch of the Canadian Bar Association represents over 8,600 lawyers within British Columbia and is dedicated to improve and promote access to justice, to review legislation, initiate law reform measures and advance and improve the administration of justice.

16

Letters to the Editor Assessment Appeal Board must be truly independent

Re:

Assessment Authority Act and Budget Implementation Act

The short note in "Legislative Update" Vol. 9 No.4 p. 31 is that this amendment requires the BC Assessment Authority to pay the costs of operating the appeals of property assessments. It does not elaborate on the significance of this amendment. What the amendment does is to require the Assessment Authority to supply the funds to the courts of revision and the Assessment Appeal Board, albeit the appeals of both taxpayers and assessors are heard and determined by those tribunals. Thus, there is a perception resulting that, because these tribunals are now dependent on the Authority for operating funds, they will certainly be conscious of that dependency in making decisions on appeals.

were persons of competence and would act in a judicial manner in hearing and determining appeals. More recently, there has been some concern because the Board came under Municipal Affairs. There are advocates who would prefer for it to come under the Attorney General. However, until this amendment, there was a reasonable separation between the Assessment Authority and the Board. If justice is to be seen to be done, this amendment is a negative step . Although protests were made concerning the amendment, they obviously fell on deaf ears.

"Although protests were made concerning the amendment, they obviously fell on deaf ears ."

Prior to the establishment of the Assessment Appeal Board, the appeal from the court of revision was made to a County Court judge. There was, as a result, a level playing field. The system was changed with the original Assessment Equalization Act, and, although a provincially appointed tribunal (the Assessment Appeal Board) replaced the judge, this was accepted on the premise that those appointed to the Board

There should be a new amendment, placing the Board under the Attorney General's Department and with independent funding. With the present ill advised amendment, there is a pronounced tilt in the playing field. An amendment re-establishing the independence of the Board would at least correct that tilt. Yours truly,

Jolm R. Lakes Vancouver, B.C.

Letters to the Editor are encouraged ... we want to hear your views. Send your letter to: Caroline Nevin, Director of Communications and Public Affairs Canadian Bar Association, BC Branch lOth Floor, 845 Cambie St. Vancouver, B.C. V6B 5T3 Fax: (604) 669-9601 Email: cnevin@bccba.org

BarTalk Vol. 9 No. 5


Is Law All There Is ... ? Evaluating Options for Career Fulfillment

Alexa Thornton , MBA

Alexa Thornton, Sandra Sharples and Elizabeth Grant

A frustrated lawyer in private practice was struggling balancing a demanding work life while trying to raise a young family. This conflict was affecting his enjoyment of life and he sought assistance in making a career change. The career coaching process of identifi;ing his transferable skills and incorporating his values allowed him to identifiJ real options, create a plan and make a successful transition into a corporate environment. Most of us are aware that the way we do business today is different from anything we have known or been led to expect. The traditional relationship between employers and employees is changing with security, the pursuit of the biggest pay cheque and moving up the ladder as the ultimate career goals becoming things of the past. As a result, the new working relationships are blurring the line between our work lives and our personal lives with more emphasis being placed on finding and doing work that is consistent with not only our abilities, but with our values, personality and interests as well. It also means that most people will go through a number of career changes in their life time. These changes are as real to lawyers as they are to all other segments of the work force.

are partners in Geode Consulting Group specializing in providing career consulting/coaching services. For more information, they can be reached at (604) 73011 so

October 1997

In the legal profession, new employment prospects available to lawyers are lower than the number of people graduating from law schools. This surplus of lawyers in the market place is leading to competition within the profession. In addition, with new technology, declining legal aid funding and new ways of obtaining legal expertise, some private practices have been struggling to attract business. This forecast is not new and has been echoed by a number of sources.

However, very real opportunities do exist. Specialization continues to be an option and areas such as the environment, intellectual property and international law are expected to grow. In addition, the mediation and arbitration field s are expanding as are multidisciplinary business firms requiring lawyers along with other fields of expertise . Nevertheless, the message is clear: the legal profession is changing and needs to adapt to a labour market quite different to what has been known in the past. What does all this mean for the individual lawyer? The shift represents a huge opportunity for some, no change at all to others and probably an uncertain future for a number as well. It means that many are re-examining not only what they are doing (satisfaction, disillusionment or complacency), but how it is being done (long hours, stress). It also means many lawyers are experiencing the same issues and questions as people in different professions when it comes to managing their careers . While it may help to know that those in law are not alone, as with any change, feelings of stress are natural.

A Labour Lawyer was feeling insecure, out of control and dissatisfied in his career. After seeking career coaclting, he discovered that, fundamentally, he was in a role that suited him well yet he was struggling with his approach to colleagues and internal issues. Through the process of on-going coaching, he is managing his career with control, confidence and direction. What can be done about career stress? Understanding or re-framing expectations around what a career actually means is one way. The dictionary definition of career is

17


PRACTICE TALK

Looking at Options Continued from page I 7

Bean Counter Corner: Questions about accounting answered here! With changes in technology, lawyers -

especially sole

practitioners -

are at a

point where software has replaced the large expenses previously outlayed to a

"course or progress through life, course of action" . Becoming comfortable with the idea that a career does not exclusively mean job title or particular profession may relieve some of the stress in making or considering career adjustments. This definition, along with the changing nature of the world of work means that non-traditional options, such as lateral moves within or outside the profession, are more accepted and lifestyle values more accommodated.

After becoming disillusioned in her private practice, a Lawyer decided to pursue her dream. While reevaluating her career direction it became clear that she no longer was motivated by mone-t; or the status of her work and that indeed, she was ready to "pursue her passion" . She turned her hobby into her career and returned to school to complete a 1 year program in the Arts.

professional accountant. Unfortunately, that may also mean you are w ithout the benefit of having an accountant "on-call" to answer your general accountancy questions . We at the CBA want to help practising lawyers by providing a means by which you can have those questions answered (note: sorry, that doesn't mean we can do your accountant's work FOR you!) . Write to

Studies have shown that individuals who are proactive and take personal responsibility for their career development feel more in control of their careers as well as find greater fulfillment and security in life. The challenge is having the confidence and attitude that is necessary for making positive change which includes a clear understanding of one's skills, values, temperament and interests. All of us have unique qualities and capabilities that we can contribute. Sometimes however, these come to us so naturally or we are so used to doing them that it is difficult to recognize them or see how they can be transferred into other opportunities, law related or otherwise. Despite the many valuable techniques in the self-help books, most people find the introspection and objectivity required to go through them difficult to do independently. Additionally, the process of exploration is as individual as each of us. What makes sense for one person, may be a poor fit for the next.

the Bean Counter Corner at Bar Talk- email your questions to Stuart Main at smain@bccba.org or fax to 669-960 I.

An option for assisting you in resolving career issues is having a Career Coach. They can help you in reaching self-understanding, confirming expectations and brainstorming options based on a realistic and strong foundation of your strengths, interests and temperament. This will allow you to sharpen your decision making skills when it comes to managing your career and ultimately your life. A coach offers support in managing options and achieving goals as well as is a motivator, someone to whom you can report successes and help you overcome stumbling blocks. They can provide you with the tools to evaluate fit and ensure your career (course or progress through life) is on track. While it may be comfortable trying to convince a judge or jury abou t i1. case, it can be more difficult to transfer those selling skills to your self. As a final thought, consider these words: "We cannot compromise our basic values and beliefs, and expect to find true career satisfaction from our career successes, no matter how great they are." - Diane Tracy.

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BarTalk Vol. 9 No.5


ACTS IN FORCE

Agriculture, Fisheries and Food StatutesAmendmentAct, 1997,5. B.C. 1997, c.14, (Bill11), amends the (a) Farm Practices Protection (Right to Farm) Act,

R.S.B .C. 1996, c.131, allowing the chair of the board to make some rulings in place of the board, Ann McLean

This feature is a continuing part of the Branch Legislation and Law Reform program. If you'd li ke to become involved with this program, contact Ann Mclean at 250-598-2860 or by e-mail at: amclean@bccba.org

You will see a reference in some cases to the number of the Bill when it was introduced in the House. This number may be different from the chapter number of

(b)Livestock Brand Act, R.S.B .C. 1996, c.271, changing its name to the Livestock Identification Act and deleting provisions relating to government provided brand registry and inspection services, providing that inspectors may be appointed who are not government employees and providing a new complaint process, authorizing the designation of livestock industry organizations to establish and administer brand registries under the guidance of the Ministry,

(c) Municipal Act, R.S .B.C. 1996, c.323, allowing certain regulations relating to protection of farm land in rural land use by-laws, zoning by-laws and farm by-laws to be restricted to specified geographic areas,

the new Act which is quoted after the title of the Act and which is the proper citation for the Act. The Bill Number has been given to you to make it easier for you to note up the Bills you may have in your library. Every effort is made to ensure the accuracy of the information provided to you in this article but the information should not be relied upon. Lawyers should refer to the specific legislative or regulatory provision.

and makes consequential amendments to the Cattle (Horned) Act, Forest Practices Code of British Columbia Act and Livestock Act. sections 6-9 and 22 of the Act in force July 28, 1997; sections 5, 10, 11, 12 13(a), (b) and (c) except the repeal of the definition of "recorder", 14 16, 17(a), (b) and (d), 18 and 19(b), (c), (e) and (f) of the Act in force September 1,1997 BC Benefits StatutesAmendmentAct, 1997, S.B.C. 1997, c.15, (Bill33), amends th

(a) BC Benefits (Income Assistance) Act, R.S.B.C. 1996, c.27, authorizing regulations for the assignment of maintenance rights and for recovery of income assistance paid out when maintenance payments are not made, including prescribing categories of persons

who are not eligible for income assistance unless their rights to maintenance are assigned, (b) BC Benefits (Youth Works) Act, R.S.B .C. 1996, c.28, authorizing regulations for the assignment of maintenance rights and for recovery of youth allowance paid out when maintenance payments are not made, including prescribing categories of persons who are not eligible for youth allowance unless their rights to maintenance are assigned, (c) Disability Benefits Program Act, R.S .B.C. 1996, c.97, authorizing regulations for the assignment of maintenance rights and for recovery of disability allowance paid out when maintenance payments are not made, including prescribing categories of persons who are not eligible for disability allowance unless their rights to maintenance are assigned, and makes consequential amendments to the Family Maintenance Enforcement Act and theFamily Relations Act. sections 1-9, 13, 15 and 16 of the Act in force September15, 1997 Capital Region Water Supply and Sooke Hills ProtectionAct, S.B.C.1997, c.S, (Bill17), repeals the Greater Victoria Water District Act, S.B.C. 1922, c.28, and provides for the operation of water supply and water distribution local services by the Capital Regional District and the establishment by the regional district of a regional water supply commission to foster provision of high quality water for current and future users and to encourage conservation of the water supply and stewardship of the catchment area. Consequential amendments are made to the Municipal Finance Authority Act and the Wa ter Act.

Act except section 5 in force August 1, 1997 Children's Commission Act, S.B.C. 1997, c.ll, (Bill23), establishes the Children's Commission to review all child fatalities and to investigate Continued over

October 1997

19


LEGISLATIVE UPDATE

Legislative Update Continued from page /9

those deemed necessary by the commission, to review information about and investigate critical injuries that occur when children are receiving designated services and to make recommendations about any deaths or critical injuries if necessary to enhance the safety and protection of children, to set standards for internal reviews by ministries and agencies of government, to provide an external review of complaints processes relating to the rights of children in care and services provided to children, to ensure that all children in care have an appropriate plan including conducting random audits, to conduct special investigations and prepare annual and special reports and to provide public education and information and invite public comment on the commission's work. Consequential amendments are made to the Child, Family and Community Service Act, Child, Youth and Family Advocacy Act and Freedom of Information and Protection of Privacy Act. in force July 25, 1997

Commercial Transport Act, R.S.B.C. 1996, c.SS, enables the use of electronic records and transfers some of the functions of the superintendent of motor vehicles to ICBC. section2(b) and (c) of the Supplement to the Act in force July 29, 1997 Electoral Boundaries Commission Amendment Act, 1997, S.B.C. 1997, c.17, (Bill13), amends the Electoral Boundaries CommissionAct,R.S.B.C.1996, c.l07, to allow a retired judge appointed to the Commission to be paid remuneration for his or her services and to extend the deadline for appointment of the first Commission. in force July 28, 1997 Emergency Communications Corporations Act, S.B.C. 1997, c.47, (Bill48), provides for the establishment of systems for emergency communications services within different areas of British Columbia, including the incorporation and designation by the minister of emergency communications corporations whose members could include municipalities, regional districts, emergency services agencies and the provincial government. Consequential amendments are made to the Freedom of Information and Protection of Privacy Act, Pension (Municipal) Act and Pension (Public Service) Act. in force July 30, 1997

20

Environment, Lands and Parks StatutesAmendmentAct, 1997, S.B.C.1997, c.18, (Bill14), amends the (a) Commercial River Rafting Safety Act, R.S.B.C. 1996, c.56, making the appeal procedure consistent with that under the Water Act, (b) Environment Management Act, R.S.B.C. 1996, c.l18, allowing the Environmental Appeal Board to make orders in certain circumstances requiring parties to pay costs of other parties and expenses of the board, (c) Land Act, R.S.B .C. 1996, c.245, changing references to the Surveyor General to references to the minister, who is now responsible for the Crown land registry,

(d)Pesticide Control Act, R.S.B.C. 1996, c.360, and Pesticide Control Act Regulations, B.C. Reg. 319/81, adding provision for approved pest management plans as authority for pesticide application, providing a procedure for appeals to the Environmental Appeal Board that are consistent with appeals to the board under other acts and expanding the regulation making powers under the Act, (e) Waste Management Act, R.S.B.C. 1996, c.482, giving the government authority to recover its costs in cleaning up a polluting spill or escape, from the person who had control of the spilled or escaped substance, providing that all appeals will go directly to the Environmental Appeal Board and providing an appeal procedure consistent with appeals to the board under other acts, and making the notice provrswns consistent with those under other acts, (f) Water Act, R.S.B.C. 1996, c.483, providing that all appeals will go directly to the Environmental Appeal Board and providing an appeal procedure consistent with appeals to the board under other acts, and (g) Wildlife Act, R.S.B.C. 1996, c.488, providing that all appeals will go directly to the Environmental Appeal Board and providing an appeal procedure consistent with appeals to the board under other acts.

Bar Talk Vol. 9 No.5


LEGISLATIVE UPDATE

in force July 28,1997 Family Maintenance Enforcement Amendment Act, 1997, S.B.C. 1997, c.19, (Bill32), amends the Family Maintenance Enforcement Act, R.S.B.C. 1996, c.127, providing for confidentiality and release of information obtained under the Act in certain cases.

section 15, except the part enacting s.43(3) and (4) of the Family Maintenance Enforcement Act, in force September 15, 1997 Fish Protection Act, S.B.C. 1997, c.21, (Bill25), prohibits the construction of bank to bank dams across several major rivers.

section 4 of the Act in force May 15, 1997 Fisheries Renewal Act, S.B.C. 1997, c.22, (Bill 19), establishes Fisheries Renewal BC as a corporation to promote and invest in the protection, conservation and enhancement of fish stocks and habitat, supporting employment, investment, training and technological development in the fisheries sector and undertaking a long term strategic plan. The board consists of not more than 12 directors, one or two of whom may represent the government and one or two of whom may be nomina ted by the federal government. Funding during the first three years will be provided by Forest Renewal BC. Consequential amendments are made to theFinancial Information Act and Freedom of Information and Protection of Privacy Act.

in force September 12, 1997 Forests Statutes Amendment Act, 1997, S.B.C. 1997, c.48, (Bill47), amends the (a)Forest Act, R.S.B.C. 1996, c.157, streamlining tenure administration, (b) Forest Practices Code of British Columbia Act,

R.S.B.C. 1996, c.159, reducing the number of operational plans required, providing a regulation making power to amend the Act or an enactment amending the Act if necessary to more effectively bring the Act into operation and providing that timber harvesting authorized before June 15, 1997 must comply with certain riparian and terrain stability standards, and makes consequential amendments to the Supplement to the Forest Practices Code Act and to the Range Act. Some transitional provisions

are made. provisions of the Act come into force on the dates indicated in section 160 of the Act; provisions not specifically mentioned in section160 come into force July 30, 1997; also by 01C 941197 sections 18-20 of the Act in force September 1,1997 HealthAuthoritiesAmendmentAct,1997, S.B.C. 1997, c.23, (Bill28), amends theHealth Authorities Act, R.S .B.C. 1996, c.180, making changes to the structure of regional health boards and community health councils, removing references which assume that the area of the community of a council overlaps with the area of a region of a board, giving councils the authority to allocate resources and grants in their communities, requiring a board or council to comply with regulations made by the minister, requiring that bylaws made by a board or council be approved by the minister before they are effective; facilitating amalgamations of boards with other boards, councils and designated corporations with other boards or councils and adding a new Part 3 Health Sector Labour Relations, repealing the Health Sector Labour Relations Regulation. Consequential amendments are made to the Expropriation Act, Hearing Aid Act, Hospital Act, Mental Health Act and Psychologists Act.

in force August 25, 1997 Industrial Development Amendment Act, 1997, S.B.C. 1997, c.49, (Bill 53), amends the Industrial Development Act, R.S.B.C. 1996, c.220, authorizing cabinet to make arrangements for the supply of electricity to the aluminum industry from a source other than the industry's own hydroelectric facilities. in force July 30, 1997

CAA OFFERS DISCOUNT FOR CBA MEMBERS CBA members can enjoy discounts of up to 25 per cent on fees for membership in the Canadian Automobile Association. If you're interested, the number to call is 1-800-341-2226. New CAA or BCAA members can call anytime and should ask to be put on the CBA CORPORATE account. Current CAA or BCAA members should

ONLY call once they have received their renewal notice in the mail-usually one month before their membership expires-and ask to be transferred to the CBA CORPORATE accounting. As a CBA member, the amount of discount you enjoy will depend upon the plan you choose and whether you are a new member or a renewal.

Liquor Control and Licensing Act, R.S. B.C. 1996, c.267, prohibits the dilution or adulteration of liquor purchased from the Liquor Distribution Branch and authorizes the inspection of licensed establishments, the taking of samples and the making of copies and extracts and their use as evidence. sections 1, 2, 4 and 6- 8 of the Supplement to the Act in force August 22, 1997; sections 1 and 1721 ofthe Miscellaneous Statutes Amendment Act, 1996, S.B.C. 1996, c.J3 in force August 1, 1997; section15 of the Attorney General Statutes Amendment Act (No.2), 1992, S.B.C.1992, c.32, in force August 1, 1997

Continued over October 1997

21


Legislative Update Continued from page 2 I

Local Government Statutes Amendment Act (No. 2), 1997, S.B.C. 1997, c.25, (Bill46), amends the

A Few New Resources Note: if you have information about a resource which could benefit other lawyers, send us the details. The Real Estate Encyclopedia, published by the Ontario Real Estate Association, is touted as a valuable resource for lawyers and other professionals. The I,200 page , $50 book contains detailed discussion, charts, illustrations and sample forms (note: some Ontario-specific information). Call Ozzie Logozzo at 416 -443-34 1 I. The Association for the Betterment of Literacy and Education (ABLE) provides free copies (tape set and booklet) of an Advanced Speed Reading Course "ideally suited for those involved in extensive

Assessment Act, R.S.B.C.1996, c.20,Building Safety Standards Act, S.B.C. 1981, c.11, Fire Services Act, R.S.B .C. 1996, c.144, Greater Nanaimo Water District Act, S.B.C. 1953 (Second Session), c.41, Greater Vancouver Sewerage and Drainage District Act, S.B.C. 1956, c.59, Greater Vancouver Water District Act, S.B.C. 1924, c.22, Islands Trust Act, R.S.B.C. 1996, c.239,Miscellaneous Statutes Amendment Act (No.2), 1985, S.B.C. 1985, c.51,Municipal Act, R.S.B.C. 1979, c.290 and R.S.B.C. 1996, c.323, Municipal Finance Authority Act, R.S.B.C. 1996, c.325, Municipalities Enabling and Validating Act (No.2), S.B.C. 1990, c.61, Resort Municipality of Whistler Act, R.S.B.C. 1996, c.407, Vancouver Charter, S.B.C. 1953, c.55, Waste Management Act, R.S.B.C. 1996, c.482, remov~ng provisions requiring cabinet appr~val of r~ut~ne actions by local government bodies, clanfymg decision making authority between local government and provincial bodies, streamlining operations of local governments, providing new local government approval rules, consent rules and counter petition rules, validating arrangements made to transfer airport control from the federal government to local government and authorizing local governments to enter into development works agreements. section 151 of the Act effective April21, 1997; section 218 of the Act effective April], 1997; sections 1 - 21, 23-26, 30, 43- 46, 47(b), 48- 66, 68 - 78, 80 -133, 135, 136, 138 -148, 152 -157, 159 -217,219-222 of the Act in force July 28, 1997

research or study." The charitable organization's goal is to enhance literacy and education in society. Contact Mr. Dhiraj Raniga at 604-278-7732; fax 604-2786460 or by email (draniga @radiant.net}. There is no cost, but you must send ABLE a letter acknowledging receipt of the copies.

Medicare Protection Amendment Act, 1997, S.B.C. 1997, c.26, (Bill21), amends the Medicare Protection Act, R.S.B.C. 1996, c.286, providing that the audit and inspection provisions apply to payments made by the commission on behalf ?f a prescribed agency, providing for appeals m certain cases directly to the Supreme Court ra ther than to the Medical and Health Care Services Appeal Board and authorizing applicable regulations. sections 11 -15 of the Act in force September 12, 1997 Miscellaneous Statutes Amendment Act, 1997, S.B.C. 1997, c.27, (Bill22), amends the

(a) Hospital Act, R.S.B.C. 1996, c.200, making a

22

housekeeping amendment, (b) Labour Relations Code, R.S.B.C. 1996, c.244, repealing s.103, which established. a grievance dispute resolution process which was partially funded by the government with the exception of the disputes in respect of which a party requested a mediator before May 14, 1997, (c) Municipalities Enabling and Validating Act

(No.2), S.B.C. 1990, c.61, authorizing the City of Victoria to enter into agreements for the leasing and operation of an arena, (d)Property Transfer Tax Act, R.S.B.C. 1996, c.378, requiring that the value of land with industrial improvements be determined using the provisions of the Assessment Act or by a qualified appraiser in accordance with the Act, with the exception of a lease agreement with an unexpired term of 30 years or less,

(e) Real Estate Act, R.S.B.C. 1996, c.430, adding dates for the filing of prospectuses relating to rescission rights under s.78, and (f) Small Claims Act, R.S.B.C. 1996, c.430, providing that appeals for which notice of appeal was filed in the Supreme Court Registry on or after September 1, 1997, may only be taken from orders made. in small claims court by a judge after a tnal, and providing that an appeal is to be a hearing on the record based on alleged errors of fact or law, rather than a new trial. section 24 of the Act in force May 14, 1997; sections 29 and 30 of the Act in force May 15, 1997; sections 32 and 33 of the Act in force September 1, 1997; sections 23, 25, 31,34 and 35 of the Act in force July 28, 1997 Miscellaneous StatutesAmendmentAct (No.2), 1997, S.B.C. 1997, c.28, (Bill42), amends the (a)Motor Fuel Tax Act, R.S.B.C. 1996, c.317, increasing the rate of motor fuel tax payable in the Victoria Regional Transit Service Area by 1 cent per litre; and

(b) Supreme Court Act, R.S.B.C. 1996, c.443, providing that the County of Vancouver and the County of Westminster are

BarTalk Vol. 9 No.5


collectively a judicial district named "Vancouver Westminster Judicial District" and allowing the court to direct that any civil or criminal matter that may be heard in the County of Vancouver or the County of Westminster may be heard anywhere in the Vancouver Westminster Judicial District that the court appoints. sections 12, 17 and 18 of the Act in force July 1,1997

recommendations of the Citizens' Panel Report on MLA compensation and giving recognition to a member's service for determination of eligibility for superannuation allowance; (g) Legislative Assembly Management Committee

Miscellaneous StatutesAmendmentAct (No.3), 1997, S.B.C. 1997, c.29, (Bill 51), amends the

Act, R.S.B.C. 1996, c.258, allowing the committee to implement the recommendations of the Citizens' Panel Report on MLA compensation and providing for appropriation of money payable under the Act;

(a) Company Act, R.S.B.C. 1996, c.62, allowing the registrar to suspend the operation of the registry when it is impractical for service to be provided and permitting the date of suspension of services to be the recorded date of delivery, filing and registration of records in certain circumstances;

(h) Teaching Profession Act, R.S.B.C. 1996, c.449. providing that the electoral zones for the College of Teachers may be established by regulation and providing that a preliminary investigation in a disciplinary matter may be conducted without delay, provided that any grievance proceedings are completed;

(b) Ferry Corporation Act, R.S.B.C. 1996, c.137, raising the borrowing limit of the corporation to $975 million;

and makes consequential amendments to the Constitution Act, Creston Valley Wildlife Act, and Insurance Motor Vehicle Act. section 6 of the Act in force effective December 26, 1996; sections 9, 10,13 - 16 and 42 of the Act in force effective April], 1997; sections 8, 11, 1734,43 and 44 of the Act in force July 28, 1997; sections 35-41 of the Act in force August 1,1997

(c) Insurance Corporation Act, R.S.B.C. 1996, c.228, and Motor Vehicle Act, R.S.B.C. 1996, c.318, providing that the directors' remuneration will be set by cabinet rather than by the board, and allowing the corporation or superintendent to retain and certify records electronically, making reproduced records evidence of their contents and validity; (d)Land Tax Deferment Act, R.S.B.C. 1996, c.249, allowing for tax deferment by persons with disabilities in certain cases, effective starting in the 1997 taxation year;

(e) Legal Services Society Act, R.S.B.C. 1996, c.256, providing that the term of office of a director is not more than 3 years and allowing cabinet to appoint an official trustee to manage the affairs of the society if cabinet is of the opinion that the appointment is in the public interest and is required to ensure continued and effective delivery of legal aid; (f) Legislative Assembly Allowances and Pension

Act, R.S.B.C. 1996, c.257, implementing

October 1997

Motor Vehicle Act, R.S.B.C. 1996, c.318, enables the use of electronic records and transfers some of the functions of the superintendent of motor vehicles to ICBC. sections 14- 16, 19, 20 and 47 of the Supplement to the Act in force July 29, 1997 Motor Vehicle Amendment Act (No. 2), 1997, S.B.C. 1997, c.31, (Bill 40), amends the Motor Vehicle Act, R.S.B.C. 1996, c.318, shortening to30 days the time that an impoundment lot operator must wait after the expiry of the original period of impoundment before applying to dispose of the impounded vehicle. section 21 of the Act in force July 28, 1997 Municipal Act, R.S. B.C. 1996, c.343, requires the minister to consult with the Union ofB.C. Municipalities before making a regulation relating to the variable tax rate system.

section] of the Supplement to the Act in force September12, 1997

23


Legislative Update

the Pension (Municipal) Act or Pension (Public Service) Act.

Continued from page 23

Municipalities Enabling and Validating (No.2) Amendment Act, 1997, S. B.C. 1997, c.32, (Bill35), amends the Municipalities Enabling and Validating Act (No.2), adding provisions dealing with the transfer of water and fire protection services from the Naramata Irrigation District to the Regional District of Okanagan-Similkameen.

in force July 28, 1997

Child Support Information Available The BC Ministry of Attorney General and the federal Department of Justice have released new information about changes to Support Enforcement Measures and Child Support Guidelines. Of particular interest are two BC publications for parents, two guides to the Federal

OffenceAmendmentAct,1997, S.B.C. 1997, c.10, (Bill 7), amends the Offence Act, R.S.B.C. 1996, c.338, enabling the implementation of the victim surcharge levy, by providing that a violation ticket must include the amount of the victim surcharge levy as well as the fine to be paid, providing that only the fine portion of a ticketed amount may be disputed and providing for enforcement of payment and interest on any unpaid portion of the victim surcharge levy. The act also amends the Victims of Crime Act, R.S. B.C. 1996, c.478, deleting the provisions which exempted fines under the Young Offenders (British Columbia) Act from the victim surcharge levy and allowed a court to exempt a person from paying the levy in cases of undue hardship. sections 1 -15 and 27 - 29 of the Act in force July 1, 1997; sections 16-26 of the Act in force July 25,1997

Support Guidelines, and federal Child Support Tables. These publications and others can be ordered through the BC Child Support Hotline at 660-2192 in Vancouver and toll free 1-888-216-221 I elsewhere in BC.

Park Amendment Act, 1997, S.B.C. 1997, c.34, (Bill 29), amends the Park Act, R.S.B.C. 1996, c.344, establishing additional Class A parks, confirming the establishment of parks previously established by order in council and changing the boundaries of several other parks.

in force July 28, 1997 Pension Statutes Amendment Act, 1997, S.B.C. 1997, c.35, (Bill18), amends the Pension (College) Act, R.S.B.C. 1996, c.353,Pension (Municipal) Act, R.S.B.C. 1996, c.355,Pension (Public Service) Act, R.S.B.C. 1996, c.356 and Pension (Teachers) Act, R.S.B.C. 1996, c.357, inter alia complying with requirements of the Income Tax Act (Canada), deleting provisions that are no longer required in the acts, clarifying and correcting the acts and providing for early retirement and in the case of thePension (College) Act, phased retirement plans. Certain regional health boards, community health councils and community health services societies may be designated as employers under

24

some of the provisions will come into force effective on July 28, 1997, others are retroactive to the dates specified and still other provisions will be brought into force by regulation (please refer to s.63 of the act for details) Public Sector Employers Amendment Act, 1997, S.B.C. 1997, c.38, (Bill 20), amends the Public Sector Employers Act, R.S.B.C. 1996, c.384, authorizing the Public Sector Employers' Council to establish severance terms for exempt employees which, when adopted by cabinet by regulation, will override the terms of affected employment contracts.

in force July 28, 1997 School Amendment Act, 1997, S.B.C. 1997, c.52, (Bill 45), amends the School Act, R.S.B.C. 1996, c.412, providing for the establishment of francaphone education authorities to operate, administer and manage francophone schools in 18 school districts in the Lower Mainland and southern Vancouver Island . Children entitled to a franco phone education are specified. Consequential amendments are made to the Community Care Facilihj Act, Constitution Act, Criminal Records Review Act, Document Disposal Act, Election Act, Employment Standards Act, Evidence Act, Financial Administration Act,Financial Disclosure Act, Freedom of Information and Protection of Privacy Act, Independent School Act, Indian Self Government Enabling Act,Islands Trust Act, Land Act, Libel and Slander Act, Library Act, Municipal Act, Municipal Finance Authority Act, Ombudsman Act, Open Learning Agency Act, Pension (Municipal) Act, Pension (Teachers) Act, Private Post-Secondary Education Act, Property Transfer Tax Act, Psychologists Act, Public Education Labour Relations Act, Public Sector Employers Act, Purchasing Commission Act, School District Capital Finance Act, Teaching Profession Act, Vancouver Charter and Workers Compensation Act.

in force August 1, 1997; section26 effective November 2, 1995 Tobacco Tax An:endment Act, 1997, S. B.C. 1997, c.42, (Bill36), amends theTobacco TaxAct,R.S.B.C. 1996, c.452, authorizing the Province to enter into an agreement with Indian bands to collect band tobacco tax on their behalf, requiring an unregistered wholesale dealer to remit money received from a retail dealer in respect of tax

BarTalk Vol. 9 No.5


payable on tobacco purchased for retail sale, allowing the director to require a bond from certain applicants for a dealer's permit and permitting the director to make an assessment based on information received from outside sources. in force July 28, 1997 Tourism British Columbia Act, S.B.C. 1997, c.13, (Bill9), establishes a Crown corporation called Tourism British Columbia. The Hotel Room Tax Act, R.S.B.C. 1996, c.207 is amended to provide that 20.625% of the existing hotel room tax (1.65% out of 8%) will be used by the government to raise revenue for the corporation's purposes. Consequential amendments are made to the Financial Information Act and Freedom of Information and Protection of Privacy Act. Act, except sections 22-24 in force April/, 1997; sections 22 - 24 (amendments to the Hotel Room Tax Act) in force effective April/, 1997

to be paid on a net basis and providing how awards for income loss are to be apportioned if more than one defendant is at fault for the loss. *s.52- 54 and 56 of the Insurance (Motor Vehicle) Act as enacted by section 60 of the Act in force June I7, 1997; *sections 15(a), 18, 19, 20(b), 21, 22, 23(b), 24, 3I and 47 of the Act in force July 28, 1997; *sections ll(f), (g) and (h), 35(b)- (d) and (f), 36, 39, 4/(a), 45, 49, 50,51 insofar as it enacts s./9.2 of the Insurance (Motor Vehicle) Act, sections 54(a), 56 and 61 of the Act in force August 1, I997; *section 33 of the Act in force August 29, 1997 Vancouver Charter AmendmentAct,1997, S.B.C. 1997, c.44, (Bill 52), amends the Vancouver Charter,S.B.C. 1953, c.55 giving the City of Vancouver the power to regulate the conversion and demolition of single room accommodation. in force July 28, 1997

Traffic Safety Statutes Amendment Act, 1997, S.B.C. 1997, c.43, (Bill41), amends the

(b) Offence Act, R.S.B.C. 1996, c.338, authorizing violation tickets to be in electronic or paper format; and (c) Insura.nce (Motor Vehicle) Act, R.S.B.C. 1996, c.231, providing that a person who suffers injury, death or damage while riding in a vehicle which they knew or ought to have known was stolen may not claim uninsured coverage from ICBC and may only collect damages from individuals liable for it; allowing the court to have access to information about the amount of a claimant's benefits after damages are assessed but before the assessment of costs; making it an offence to provide false or misleading information to ICBC; and with respect to accidents occurring after June 17, 1997, providing that recovery of income loss resulting from an accident is

October 1997

In anticipation of the January I implementation of the new Federal Court Rules, the Federal Court of Canada and the Canadian Bar Association will be offering a one-day training session on November 7, 1997 at the Sheraton Wall Centre Hotel in Vancouver. The fee for CBA members is $395.00 plus tax ($345 for those who have been Members for less than five years). The day's agenda includes a presentation and discussion of the new Rules, led by the Honourable Barry

L. Strayer of the Federal Court of Canada, followed by a luncheon and a 90-minute

REGULATIONS TO NOTE

(a)Motor Vehicle Act, R.S.B.C. 1996, c.318, providing for the release of stolen impounded vehicles, allowing the use of electronic records, providing for automatic suspensions for certain driving offences, requiring assessment and remedial programs be undertaken before a licence is reissued and imposing penalties for persons driving while suspended;

Federal Court Rules, 1998

practical workshop on the Rules. If you are interested in

BC Benefits (Income Assistance) Act, B.C. Reg. 75/97, the Income Assistance Regulation, BC Benefits (Youth Works) Act, B.C. Reg. 77/97, the Youth Works Regulation and Disability Benefits Program Act, B.C. Reg. 79/97, the Disability Benefits Program Regulation are amended to provide for the assignment of maintenance rights.

attending this session, you are invited to contact Mrs. Pat Servant, CBA CLE Programme Co-ordinator, by phone ( 1800-267-8860), fax (613-2370 185) or email (info@cba.org).

B.C. Regs. 297/97,298197 and 302197 effective September 15, 1997 Children's Commission Act, B.C. Reg. 250/97is made providing for multi-disciplinary teams of advisors and procedure for dealing with complaints. effective July 25, 1997 Corporation Capital Tax Act, B.C. Reg. 79/96, theCorporationCapitalTaxRegulationisamended to remove a reference to joint ventures in s.16 which deals with jointly operated corporations and to provide a foreign sales office exclusion from the provisions of s.6 and 17. B.C. Reg. 300/97 effective April/, 1997 Court Rules Act, B.C. Reg. 221/90, the Supreme Court Rules is amended to permit digital recording of court proceedings, to provide that Rule 49 - "Appeals" applies to an appeal from Provincial

25


Legislative Update Continued from page 25

Court and to provide for filing and serving a notice of hearing of appeal (Form 59B) and a notice of abandonment of appeal (Form 59C). B.C. Reg. 227/97 effective July 11, 1997; B.C. Reg. 301/97 effective September 12, 1997

Court Rules Act, B.C. Reg. 222/84, the Official Reporters Regulation is amended to provide for when an official reporter may attend a proceeding, qualifications of authorized reporters and responsibility for payment of reporters' fees. B.C. Reg. 248197 effective July 16,1997 Evidence Act, B.C. Reg. 249/78, the Sound Recording Regulations is amended to provide that all proceedings are to be recorded by a sound recording wherever practicable and providing for the preparation of a transcript from notes taken during the proceeding if a recording is indecipherable. B.C. Reg. 229197 effective July 11,1997 Insurance (Motor Vehicle) Act, B.C. Reg. 447/83, the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act is amended to provide that there is no underinsured motorist protection for a passenger in a vehicle that the passenger knew or ought to have known was being operated without the owner's consent. B.C. Reg. 271/97 effective August 1,1997 Workers Compensation Act; Workplace Act, B.C. Reg. 296/97, the Occupational Health and Safety Regulation is made, B.C. Reg. 585/77, the Industrial Health and Safety Regulations is amended, B.C. Regs. 339/94, the Fishing Operations Regulations, 344/93, the Occupational First Aid Regulations and 128/74, the Occupational Environment Regulations are superceded and B.C. Regs. 299/88 and 258/88, the Workplace Hazardous Materials Information System Regulations are repealed. Tl~e new regulation provides for core requirements applicable to all employers and workers within the scope of Part I of the Workers Compensation Act and where applicable to persons within the scope of the Workplace Act. Core requirements include rights and responsibilities,

buildings, structures and equipment, emergency preparedness and response, impairment, working alone or in isolation, workplace conduct, violence in the workplace, work area requirements, storing and handling materials, ergonomics (MSI) requirements, work guards and handrails, illumination, indoor air quality, environmental tobacco smoke and occupational environment requirements. General ha zard requirements and industry and activity specific requirements are also set out. effective April15, 1998

REPORTS AVAILABLE DiscussionPaper-HumanRightsfortheNext Millennium- Public Consultations held September 8- October 6 Source: B.C. Human Rights Commission - 1-800-6630876 or in Vancouver 660-0692 O~cupational Health and Safety Regulation w1th notes -Workers Compensation Board

Source: WCB - (604) 276-3068; Internet address: www.wcb.bc.ca

Condominiums Act: Unresolved Issues (Common Expense Allocation, Age Restriction Bylaws, Rental Restriction Bylaws and Voting by Non-Resident Owners)- Discussion Paper -Deadline for submissions November 15, 1997 S~:mrce; Ministry of Finance and Corporate Relations Fmanctal and Corporate Sector Policy Branch- (250) 3871269; Internet Address: http:/ /www.fin.gov.bc.ca/FCSPB I condo.htm

Introducing British Columbia's New Builder's Lien Act Source: Ministry of Employment and Investment- Economic Partnerships Branch- (250) 952-0675

Branch Meetings Schedule October 97 - January 98 October 18, 1997 October 30, 1997 November 12, 1997 November 15, 1997 November 20, 1997 December 3, 1997 December 6, 1997 January 7, 1998

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local & County Bar President's Meeting and Dinner Executive Committee Meeting Executive Committee Meeting law and the Media Session Bench & Bar Dinner Executive Committee Meeting Provincial Council Meeting and President's Christmas Party Executive Committee Meeting

BarTalk Vol. 9 No.5


The Changing Face of Legal Practice We asked a group of lawyers who were called to the bar 30 or more years ago to spend some time talking about how the practice of law has changed over the course of their careers. Among the themes woven through their discussion was a sad sense of loss of collegiality among lawyers, an awareness of how complicated the practice of law is today, and a call to young lawyers to be very conscious of what it really means to choose law as a profession today. Here is an excerpt from that discussion, with participants Allan Bate, Q.C. (1951) in Chemainus; Peter Butler, Q.C. (1958) at Farris, Vaughan, Wills & Murphy in Vancouver; Hamish Cameron (1957) at Bull, Hausser & Tupper in Vancouver; Tyrone Colgur (1967) at Hislop & Colgur in Cranbrook; Foster Ish erwood (1951) at Holmes & Isherwood in Victoria; Anne Jon es, Q.C. (1962) at Polonicoff, Jones & Perehudoff in Castlegar; and June Laker (1961) at the Office of the Public Trustee in Vancouver .

Q A

courses. This has caused concern among the Benchers in Ontario, I don't know about BC. In actual fact, the students pick a lot of what we all had to take when we went to school, but there are people who are graduating without a lot of the things that you and I would consider essential. The question is whether the licensing body should then re-examine in those subjects, or should compel the students to take them. These were issues that were raised in the 50s, and they're coming to a head again.

What do you think of today's law school requirements? Foster Isherwood (FI): I don't think the extra time they have to put into an Arts degree now hurts ... I always think that everyone starts out in the practice of law very young today. I think that some extra time in university and working to get that degree adds something in the end. Anne Jones, Q.C. (AJ): I take the opposite view: I found that very little that was covered in Arts had much relevance to Law, and you either sunk or swam in law school. I'm concerned about the inflationary educational pressures placed on young people. We make it harder and harder for people to leave home, get an education, get out and earn a living ... we're delaying the ability of people to grow up and become independent. I worry about that. Peter Butler, Q.C. (PB): The big difference between then and now is that is was easier to get in at first- you only needed a 65% averagebut in the first year they would fail up to 20% of the class. Today, it's tougher to get into the law school, and once you're in the chances of failure is small. They weed you out before you get in. June Laker (JL): Some of the courses these students have down on their resumes, I don't even know what they would consist of... I'm not sure that some are particularly relevant, especially to a smalltown general practice. Hamish Cameron (HC): It's pretty clear that a lot of things have happened since most of us were in law school. One is that there are far more elective courses and far fewer mandatory

October 1997

AJ: That's a valid one. Looking at some of the outlines of people's education now, you really wonder how broad their education was, and whether they really would be equipped to practice in a general way. If they are specialists, that may be fine, but you have to wonder if they've never taken a course in contracts, for example, how they're going to manage.

Q A

How do you think you would do in law school today? PB: In my view, students haven't gotten any brighter or dumber over the years, and I'd do exactly the same as I did then ... which wasn't that great. Allan Bate, Q.C. (AB): I remember a conversation I had a few years ago with Mr. Justice Toy, and we agreed that neither one of us would even be able to get in to law school. FI: I'd wonder if I would have had a high "B" average to get in ... I might have had a low "B", just on the edge.

27


HC: I think that most of us would have geared

ourselves up a couple of years in advance to meet whatever the threshold was. I knew what the threshold was, and I got 66% going in. Most of the lawyers that survived the cut to third year in those days would make it today and would survive.

Q A

What are the biggest changes you have seen in the practice of law over the duration of your career? HC: Without question, it's the need to become

marketers and sellers of legal services. That's the single biggest change. All the technological changes and specialist changes are less important. When I came downtown, it was thought to be unethical to speak with someone without what was called "a prior basis for solicitation". Now, you have to spend a significant part of your day, at least in big town practices, selling your services to prospective clients. PB: It has altered from being a pure profession

into a "business" now. In the old days, there was no such thing as time dockets or computers. You just opened a file, charged what you thought was fair considering the success factor and what you thought the client could pay and would consider fair. Now, it's all determined by time dockets and your hourly rates. Because of that, in my view, the image of the legal profession has changed ... clients now think of lawyers as mainly interested in their fees. Lawyers are not totally to blame for this change ... clients have demanded that they know what they're being charged for. PB: The other way I think it's changed is that

there's been a loss of comradeship between lawyers. It's partly because there's so many lawyers now, but in the old days in the criminal bar you "fought the good fight", and after court you would still see the opposition lawyers as your friends, see each other socially. Today, there's little of that. It's kind of sad. The conduct of litigation is more cold-blooded, more adversarial. I felt that nearly all the

28

lawyers I was against in the old days, we could all joke around ... it wasn't so full of animosity. Today, for example, the domestic relations lawyers don't talk to one another, never mind go to lunch with one another. Fl: It's like the human part has gone out of law. You used to haul in your books and someone would help you. You'd quote your law to the judge in a battle in chambers. Today, everything is miles of paper ... more paper, more cold facts and statistics. Then it becomes a battle of paper before the judge. The human as pect of the lawyer's services ha s certainly disappeared, and we're as much to blame as the public, because of our own attitudes.

Ty Colgur (TC): What I've noticed, even in a small area like Cranbrook, is not only are we in an adversarial system, but the relationship between colleagues- which is a very difficult word to even use now- is very adversarial and competitive. That's a dramatic change. AB: There has been a tremendous change since

the Charter came in. There are so many pitfalls, particularly for the Crown, that a lack of absolute trust has built-up between counsel. I think that the system is tending to destroy itself by virtue of its adversarial nature, and I grieve because I think that the public will not bear with us much longer. The system is NOT aimed at determining the truth ... it is aimed at determining whether or not a particular side can prove its case. There's a line out of the usual judges' charge that says: "a criminal trial is not a contest between the Crown and the Defence, but a solemn inquiry to find out where the truth lies." And judges quote this line as if it's true. We as lawyers have got to look at what we're doing. The days of going to lunch with your opposition colleague are gone, but we are part of the reason for it going. AJ: About the time I started, there was a great debate over whether lawyers would remain as experts in income tax or whether they were going to surrender that completely to the accountants, which basically we did. We're in the same sort of thing now with the notaries over conveyancing, and now the banks are

BarTalk Vol. 9 No. 5


making a strong drive to become executors of estates, and to cultivate lawyers who will draw wills. for people naming banks and trust companies as executors. And mortgage title insurance companies are drawing up mortgages and wanting people just to commission them. It's very much a business now, and I think that lawyers are getting frozen out of some of these areas.

came in it was like the Wizard of Oz ... you stood there shaking. Judges in those days were more inclined to lecture you as a lawyer. Today, because they're generalists and not specialists, and have to rely heavily on lawyers, they are basically getting along better and looking at them more with equal status. Fl: They're more human now, and there's so

many of them. And the ladies reaching the bench has made a difference: they are more courteous and the lawyers are courteous back.

JL: There are so many more lawyers looking for the same work, and more lawyers saying I need to work to keep my family together ... it's not only adversarial in the courtroom, it's adversarial in competing for the business. I think the poor public perception is also fed into by the media who portray us as only being interested in making the big bucks, living in the big house ... the public no longer look at us as being people of principle and worthy of respect.

AB: I find things have changed a lot. There was a period of time when one was very young, when the judges seemed very autocratic. But somewhere in mid-life, things seemed to change ... I don't know whether it was me or the system! I found that judges were incredibly helpful. There was a sense in them of arriving at justice, not just the letter of the law. There was a trust between counsel and the Court that I don't see anymore. There was a time when a judge could say to the Crown, "Do you mind if I talk to Mr. Bate here about his defence?" The answer would be "Not at all, M'Lord", and in you'd go. I think all that's gone. It's a lot more impersonal now. We have lost something. We're more the letter of the law, and less looking for truth.

Fl: I also think we just stand by and watch these great big amalgamations: banks becoming trust companies, trust companies becoming real estate firms, real estate firms becoming insurance brokers ... throttling and controlling everything, and you have to use them or you're out of luck. It's part of our political system ... we're all made into automats, based on making the most money in the least amount of time. It's all become mechanical, not as personal as it used to be. The lawyer was highly regarded in the community ... the doctor and the lawyer were well respected in the smaller towns ... now we just shuffle papers, charge fees and look after our time as best we can.

Q

A

You've talked about a deteriorating relationship between lawyers and other lawyers; what about the relationship between lawyers and the judiciary? PB: The relationship has changed ... there's now

hundreds of lawyers on the bench, and I think the relations between judges and lawyers is more friendly. In distant times, judges were more austere and dominating. If you went to the Supreme Court of Canada, when the judges

October 1997

AJ: I think that's one of the reasons the public doesn't respect the profession anymore. AB: We're cutting our own throats. We are not explaining to the public what the issues are with respect to the Charter, so the public doesn't understand it and that's why we're in disgrace.

Q A

How has the increasing number of female lawyers affected the practice? HC: It's had a major impact- the Vancouver Club is practically out of business as the place to hold large law firm do's! FI: They've specialized, and they've made us specialize more. It's also made us more careful

29


discrimination against women. I certainly haven't witnessed that.

-they've tightened it up. PB: They've done more than that... they're

HC: It's true that stress is a big factor, and that women feel that stress more because they are still taking more than their fair share of child care responsibilities When I talk about inhospitability, I'm not talking solely about blatant discrimination, but also failing to have maternity leaves and flexibility within the workplace.

highly competitive, conscientious, work long hours and really have forced their male counterparts to do the same. AB: They've made a lot of us very conscious of the gender bias that has existed in this profession. There's no question that there has been an incredible awakening as to our sterotypical thinking. I think it's really important that that has happened.

AJ : I found that same thing. I worked until I

was about eight months pregnant with our first child, and I remember going up in the elevator with Mr. Tupper and he said "Mrs. Jones, how long do you intend to work?" and I said until the end of January. He said "And when is your child due?" I said around the 22nd of February. He looked at me, nodded, and said "I think that will be about enough." At that time, there was absolutely no question that you would ever work after you had that child.

HC: The Hughes Royal Commission found that although women were graduating at the rate of 50% of the classes, they were not surviving in the practice. Even three or four years ago when they reported, the profession was still demonstrably inhospitable to women. That was a huge consciousness-raiser for the profession, and they've been working on it since. But the most recent statistics I've seen still seem to indicate that women are leaving at a higher rate than men.

JL:

There was nothing available. No one even considered part-time work an option, and if you chose to have a child that was YOUR problem - goodbye! I remember a few years after coming back into the profession, explaining to someone at a dinner about babysitting. He looked at me as if I was from another planet. I think people are certainly more aware now, because in my time they weren't even interested in hearing about it.

JL:

I think there are several issues with that, though. Some of the women are disillusioned with the practice of law, for the same reasons we've already discussed- the adversarialism and the economics and marketing- and then there are family issues. AJ: It's not just about being women. In my time,

about a third of the class didn't stay in the province to practice - many of them went to the prairies, many into the federal civil service. It was a very good training ground for getting into other things. I'm not sure that we train people to do anything else anymore, so there aren't all those other advantages and options. AB: I'm in the LAP Committee, dealing with substance abuse and other problems. One of the things I've observed is that there's a tremendous amount of stress within the profession, and that's a bigger problem now. And I think that the stress factor is far more significant for women than men. There are all kinds of factors going into the reasons why women might be leaving the profession, and not all to do with any illwill or blatant

30

Q A

What has made your work easier over time, and what has made it more difficult? PB and AJ: Technology is great, couriers, fax,

email... you really don't need Canada Post. HC: The thing that's made practicing my kind of law more difficult is clearly technology, because it's sped up the process of the practice of law and increased the expectations of clients to an amazing degree. They expect that we can function in very short timeframes, and they want a decision right away. We can produce a lot of paper, because we have access to all our

BarTalk Vol. 9 No. 5


historical work products and can use them much more easily than we could in the past, and that's changed the practice of law in many ways. Some of us who grew up thinking at a slower pace because our thinking was geared to the technology we had, are finding it difficult to come up with the answers at the boardroom table the way the 35year-old investment bankers can. AJ: When I started out, the Statutes of Canada were contained in about four volumes that took up about 18-20 inches of shelf space. The Statutes of BC were about that size, and the Regulations were another half that size. The latest edition of the revised BC Statutes is now taking up about eight feet of shelf. The proliferation of the laws that are passed have made the practice of law much more difficult. I think it's time to get rid of the fiction that everyone's presumed to know the law. HC: I was talking to litigators yesterday who have been asked to prepare a proposal for a major piece of litigation - something that never used to happen either- and they say there are potentially 4 million documents that have to be dealt with.

JL: Litigation has got to

the point where only the very wealthy can afford it anymore. It's pretty much priced out of the market for the average person. That's sad. And I have to ask. .. has the proliferation of paper really made a great deal of difference to the outcome of litigation? I seem to remember that in the 60s you could do a motor vehicle accident case in a day, maybe two days in court... now it seems as if the simplest cases seem to take a week and complicated ones can take years. Is it any better or any more effective?

JL:

Another thing that's really changed is that there used to be a limited number of law reporting systems ... now there's about three series in BC alone, and all the specialized series, and every province has its own series, plus the unreported cases. It's hard to keep on top of it. Fl: It's too hard. Ten years from now you're

not going to have litigation lawyers who are generalists. They're all going to have to be specialized.

October 1997

Q A

What advice would you give to young lawyers today?

JL: Go into teaching. You'll make more money, have a pension, and regular time off! Fl: It's not glamorous like I thought it would be. It's hard, steady work, and it's tedious and it's tiresome. It's not the money-making machine that people think it is. But you have to be interested in people and hope in the end that you're doing something worthwhile, and doing the best for your client.

AJ: You don't necessarily have to practice in court or in the areas you see on television ... there are other aspects of the law - policymaking, politics even, and other areas where if you can contribute something to society. TC: I would say: take careful instruction from your client, and be very clear with your client as to what your relationship is going to be, and some agreement in writing with your client regarding scope of work and payment schedule. You need to make sure that it is clearly understood by your client. You need to practice defensively. HC: I have four kids, none of whom have gone into law. Obviously, my explicit or implicit advice must have been to avoid it. But, I would say that it's a good place for women because they can get a good income and retain their independence. As to advice to young lawyers, I would say it is a world that will become more specialized, and you have to learn how to market and you have to specialize in an area with good market prospects. PB: If you love your practice, put your heart and soul into it. If you don't, get out. Otherwise it will show in the final result and you won't be considered a very good lawyer. AB: Be sure it's what you want to do, and have clear expectations. Don't expect to change the world. If you want to earn a living, if you want to have an honest way to earn a living, do it.

31


A Busy September For the BC Branch Late summer may be the perfect time for holidays for some, but at the BC Branch, we were busy gearing up for our busiest time of the year. Three full days of meetings and events brought hundreds of volunteers and Members together in Vancouver, providing an energetic start to the year. On Thursday September 11th, Section Executives attended a one-day session designed to set the stage for a successful year for our 64 Sections throughout the province. The day featured an introduction to (or reminder of) the many resources available at the Branch to help Sections organize and operate throughout the year. A 90-minute media seminar provided practical advice on handling the media, but it also generated a useful, in-depth discussion about the kinds of challenges Section Executives face in dealing with the media.

Members engage in a lively disc 11 ssion at the Provincial Council. The following morning, CBA Members turned out in full force for the Branch's AGM. Of particular interest was a resolution proposing the elimination of the Law Society's inclusion of the CBA fee in the annual Practice Fee. Only the mover and seconder of the motion voted for the resolution, but the discussion was a good one and set the stage for a second defeat of a similar motion at the Law Society's AGM later that day. CBA National President Andre Gervais was a guest speaker to the AGM, joining Branch President Kerry-Lynne D. Findlay in championing the value of belonging to a s trong professional organization at a time when lawyers are struggling to address key provincial and national issues amidst continued attempts to marginalize the profession.

Andre Gervais, CBA National President, addresses the BC Branch AGM. BC Branch Members seated are KerryLynne D. Findlay, President; Barry Cavanaugh, ExecLtlive Director; and Emily Reid, Immediate Past President.

NATIONAL

AGM

LIVES

UP To ITs

On Saturday, September 13th, Provincial Council convened its firs t meeting of the year. Judith Milliken was elected to the position of Secretary Treasurer, bringing her many years of Branch and legal experience to the Executive Committee. President Kerry-Lynne D. Findlay presented a report on the unprecedented selection process leading up to the appointment of more than 200 people to Committees and other representative bodies, reflecting a momumental effort to provide volunteer positions for everyone who requested them. A resolution brought forward by Patrick Chen, regarding ways to improve administrative procedures, resulted in a useful discussion about what changes are being implemented by this year's Executive to streamline and improve the level of both effectiveness and openness in the current process, and what changes might be looked at in the future. A second resolution, brought forward by Catherine Sas of the Immigration Law Section, highlighted concern about the activities of immigration consultants. All in all, a very busy start to what is proving to be one of the most active years in the history of the Branch!

PROMISE

This August, the National CBA Annual General Meeting was held in Ottawa. The BC Branch has traditionally had a strong presence at the national level, due in large part to our size- almost one-quarter of all National CBA Members are from BC. Bar Talk asked Carmen Overholt, Vancouver County Representative, to give us some feedback on his experience at the AGM. This was his response: "The Canadian Bar Association Annual Meeting in Ottawa this year was like previous CBA conventions in that it was an ideal opportunity to see friends, renew old acquaintances and meet with other lawyers to discuss some of the pressing issues facing our profession. As our nation's capitol, it was fitting that lawyers from across the country would meet there for the purposes of discussing the challenges that we face in the years to come. In addition to listening intently to the observations and predictions of Angus Reid, I enjoyed the opportunity to listen to senior lawyers who choose to lead rather than follow. It never ceases to amaze me how similar the objectives, concerns and challenges are for lawyers, regardless of age, nature of practice or place in which we practice. The Canadian Bar Association Conference remains the best way for us to stay in touch with our profession."

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BarTalk Vol. 9 No.5

J

BarTalk | October 1997  

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association, the leader and voice of Canada’s leg...

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