BC UTILITIES COMMISSION | BUILDERS LIENS | CONSTRUCTION DISPUTES
F EB RUARY 2016 | bartalkonline.org
Real Estate & Construction Law
news BARTALK EDITOR
Deborah Carfrae EDITORIAL BOARD CHAIR
EDITORIAL BOARD MEMBERS
Marie Burgoyne Laura Cundari Janine Dethlefs Brandon Hastings David Madani Kirsten McGhee Gurminder Sandhu Dierk Ullrich Vanessa Werden
BARTALK SENIOR EDITOR
Judy Cave Travis Dudfield Tanya Galic Stuart Rennie Karen St. Aubin Jennifer Weber Judy Yen
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Cover photo: “Aperture,” by Arno Matis Architecture, is a multiresidential project currently under construction in Vancouver, British Columbia in good legal standing. “Inspired by stacked timbers, building massing fragments density to minimize single-family neighbourhood impact while providing an incredibly efficient floorplate. Aperture-like façade frames maximize passive shading, further fragmenting density.”
Call for Nominations You are encouraged to honour a colleague and fellow CBABC member through nomination for one of the following prestigious awards: The Community Service Award recognizes the valuable contributions of CBABC members serving the communities in our province. The CBABC sponsors Community Service Awards in each county biennially. The Equality and Diversity Award celebrates the accomplishments of a CBABC member who has succeeded in advancing equality in the legal profession or in BC in general. The Harry Rankin, QC Pro Bono Award was established in recognition of the immense contribution of Harry Rankin, QC in supporting access to justice for the poor. The Award recognizes
Nominations for all awards must be submitted before Friday, April 22, 2016. Additional information on these awards, including nomination forms, can be found at cbabc.org/Awards.
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outstanding contributions by a member of the CBABC in the area of pro bono work. The Innovative Workplace Award recognizes lawyers, law firms or organizations who demonstrate leadership in promoting workplace innovation within the practice of law.
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VOLUME 28 / NUMBER 1
FROM THE PRESIDENT Thinking About “ReThink” by Jennifer Chow
EXECUTIVE DIRECTOR Under Construction by Caroline Nevin
PRACTICE TALK Rethinking Your Tasks by David J. Bilinsky
DAVE’S TECH TIPS NOTHING OFFICIAL I Robot, Esq. by Tony Wilson
10 SECTION UPDATE Commercial & Real Estate – Okanagan Real Property – Vancouver Appellate Advocacy General Practice, Solo & Small Firm – Prince Rupert, Criminal Justice – Prince Rupert and Young Lawyers – BC North 11
Features 12 MEDIATION AND ARBITRATION by John S. Logan and Devon H. Lehrer 13 WHOSE CONSULTANT IS IT ANYWAY? by David Claassen 14 INVALID OR EXCESSIVE BUILDERS LIENS by Marc MacEwing 18 CONSTRUCTION LAWYERS by Christine Arnold 19 THE DUTY OF GOOD FAITH AND CONDITIONS PRECEDENT by Wes McMillan 20 THINK GLOBAL, ACT LOCAL by Chris Weafer
Inside This Issue The BC real estate market continues to remain topical. In this first issue of 2016, BarTalk covers some of the legal and practical issues that lawyers face when practising Real Estate and Construction law: should a client mediate or arbitrate a construction dispute, what role do architects and engineering consultants perform when disputes arise between a contractor and owner, can invalid or excessive liens be sanctioned or remedied, do in-house construction lawyers require different skills than any other construction lawyer and what should lawyers be aware of when district energy system matters land on their desk? Flip through the pages, and find out the answers.
News and Events 2 Call for Nominations 15 Upcoming Professional Development in Your Community 22 Automated Lawyering? Not So Fast CBA Broadens Its Influence – All in One Place with CBA Influence Newsletter 23 Michèle Moreau of Montréal Named Incoming Second VP Letter to the Editor 24 CBA WLF Event Recap CLEBC Update 25 BC Legislative Update Branch & Bar Calendar CBA Mid-Winter Meeting of Council 26 Tips from Courthouse Libraries BC
Also In This Issue
16 MEMBER SAVINGS 27 LAW FOUNDATION OF BRITISH COLUMBIA
UMP AND THE UN(DER)INSURED by Brandon Hastings
21 THE PARIS AGREEMENT AND BEYOND by Professor Chris Tollefson
28 PROFESSIONAL DEVELOPMENT 29 DISPLAY ADS 30 BAR MOVES 31 NEW MEMBERS
Click here for LEGAL OPPORTUNITIES and ads FEBRUARY 2016 / BARTALK 3
FROM THE PRESIDENT JENNIFER CHOW
Thinking About “ReThink”
Controversy over the proposed centralized governance model
his is the CBA’s year to “ReThink.” A time to decide on organizational change. The ReThink steering committee has completed its tasks. Its proposed “strategic direction” document promoting a leaner, more nimble voice for the legal profession was recently approved by the National Board with little debate. However, the committee’s proposed centralized model of governance is controversial. A vote on any new governance model will likely occur this August, rather than February as initially advised. Here are three of the controversial proposals: 1. CENTRALIZATION. Staff and Branch budgeting would be overseen by a new CEO working at the national office in Ottawa. Currently, local autonomy allows each Branch to oversee its own staff and budgeting process. Under the proposed governance model, the BC Branch (“BC”) would give up key decision-making. BC would no longer elect its own Secretary-Treasurer. All BC budgeting requests would flow through to National CBA for approval. With Branch approvals likely in a queue to be decided by a small Board, I doubt centralization would be quicker and nimbler. Given the economy, we should also examine lowering our membership fees which has not been done. 2. ELIMINATION OF PROVINCIAL COUNCIL. Provincial Council is
an important community of CBA leaders. Since last September, your Executive Committee has been making meaningful changes to engage Provincial Council members on substantive issues, such as access to justice. Provincial Council can become a more effective forum for our elected and Section representatives to exchange views, debate issues and network with lawyers from across BC. 4 BARTALK / FEBRUARY 2016
The assumption is that eliminating Provincial Council (and National Council) will save money. The steering committee admits that no financial analysis, business plan or budgeting forecasts have been undertaken in regard to the proposed governance model. Without such a financial analysis, I cannot automatically conclude that the new governance structure will lead to overall savings. Any monies saved will likely be spent on the new governance structure, including a new CEO, regional and national directors and other new staff or structures. 3. A NOVEL NATIONAL BOARD. The
proposed National Board will no longer be fully elected nor representative of Canada. Five “nominees” from amalgamated “regions” will sit on the proposed Board, who will then select four other “skills-based” Board members. A non-voting CEO would complete the 10-member Board.
Each would sit for a three-year term. The national president would be elected by a separate “electoral college.” Given this, BC may, for three years or more, find itself submitting most, if not all, of its key budgeting and operational decisions to a National Board that has no BC representative. Our current National Board is admittedly large – about 24 members. I believe a new National Board should have at least 13 seats – one for each province and territory. The CBA has an amazing history. Founded in 1896, we have existed as a professional organization for three centuries. In my view, the CBA should reflect Confederation rather than centralization. Each province is unique, with its own history, politics and needs. A one-size-fits-all, topdown centralized model would not be representative of the legal profession. Maybe we should become more of a federation of branches with a national body serving clearly defined and negotiated duties. I support organizational change that makes the CBA a stronger grassroots organization reflecting strong voices from each province and territory. That is how we remain attractive and relevant to our members.
EXECUTIVE DIRECTOR CAROLINE NEVIN
Lots of great change ahead!
always start a new year feeling refreshed, full of optimism and curiosity about the potential that lies ahead. This year at the CBA is no different. At the Branch office, we have gone through a significant restructuring, eliminating a senior director position and two mid-level admin roles. We have trimmed our budget, and freed up our resources to put them where they’re most valuable – into direct member services. In the Member Services department, we’ve hired new, talented staff who are focused solely on serving members. Their main task is to work with our hundreds of volunteers to build the best Sections, Forums and PD offerings in the country. We know that you look to Sections and Forums not just for education, but also – and perhaps more importantly – for real connections, community and collegiality. CPD credits are easy to get these days; there are multiple suppliers and course options. The real difference with the CBA is that it’s done in the
context of building ongoing relationships – with experts, and with each other – that will enhance not just your career prospects but also your enjoyment of life in the law. We focus on serving not just individual members, but also on building up the CBA Community as a whole, within which you can both benefit and contribute. That’s why we chose to make all 77 Branch and 41 National Sections and Forums free with CBA membership. The second thing you’ll notice that’s new about CBABC this year is that after nine years of holding our annual Branch Conference south of the border, we’ve revamped the Conference based on direct input from members. The end result is an amazing new Conference in Whistler on April 8-9, 2016. Some things haven’t been changed: A GORGEOUS SETTING – the Fairmont Chateau Whistler, right on the mountain. HIGH-LEVEL SPEAKERS – former SCC Justice Marshall Rothstein,
Chief Justice Hinkson, Attorney General Anton, Chief Judge Crabtree, plus 13 experts in fields as varied as “Dealing with High Conflict Personalities,” “Unleashing Your Inner Geek! Digital Evidence in the 21st Century,” “Practical Strategies for Powerful Writing” and “Uppers, Downers, All-Rounders” by BC’s former Chief Coroner, Dr. Diane Rothon. MUST-GO
SOCIAL/NETWORKING EVENTS – receptions at the Cha-
teau and the Squamish Lil’wat Cultural Centre (plus a possible late night band gig by BC lawyers in support of the Bar Benevolent Society). What has been changed is the time of year (spring instead of fall), a BC location (where your dollar goes further), and a stronger focus on practical take-aways from the entire program, regardless of your practice area or year of call. Our aim is to bring together
the right people and provide the right opportunities for every lawyer who attends to build-up their skills, knowledge and networks to ensure a great 2016! The other big construction project underway right now is at the National level. Many BC members participated in the CBA ReThink consultations and online Virtual Community last year. That input from across the country, combined with in-depth work with organizational design and govern ance consultants, the CBA Board and Re Think Steering Com mittee, is now at a stage where there are concrete proposals being discussed and debated by the National Board, which includes all Branch Presidents, the National Executive Officers, and the Chairs of the Sections Council, Forums, Equality and Diversity Committee, CCCA and Young Lawyers. The end goal is to build a more member-centric organization with member dollars being used more effectively to deliver what you expect of us at both the National and Branch level. These are just a few of the projects we’re working on to build a better CBA experience for you. Let us know if you think of more!
firstname.lastname@example.org FEBRUARY 2016 / BARTALK 5
practicetalk DAVID J. BILINSKY
Rethinking Your Tasks
Getting efficient with your goals and time r
But there never seems to be enough time To do the things you want to do Once you find them... r
– Music, Lyrics and recorded by: Jim Croce
s lawyers we are accustomed to working long, hard hours. Indeed, some writers such as Jordan Furlong have stated there is no such thing as worklife balance as our lawyer work culture has changed over the last while from moderate to frenetic. As our clients’ demands and needs sped up, our pace increased to meet them. However, while our clients’ figured out how to increase efficiencies with technology and new ways of doing things, we as lawyers fell behind. Jordan’s suggestion is that we now need to learn to reshape the way we work to align better with what our clients want and what we need. In the process we can consider and address the toll that our current pace places on our lives and those close to us. To start, we need to perform better client service in ways that reduce the time we spend on a matter. This leads to learning how to increase efficiencies and improve workflows to accomplish more in less time. There is a role for the increased use of technology here. Besides figuring out how to be more efficient in the office, we also need to turn our minds off when we are out of the office to get the rest and relaxation we need to continue to be on the top of our game and avoid burnout. We all know what we love to do outside of work to relax; the trick is finding or creating the time to do it.
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So how do we do this? In January 2016, Inc. magazine published an article entitled “A Simple, Science-Backed Trick to Better WorkLife Balance.” All of us leave our desks each night with uncompleted
Make a list of your outstanding to-dos, but take the next step and clearly plan when, where and how you will tackle each one. goals and tasks. Brandon Smit of Ball State University found these uncompleted tasks are intrusive and interrupt our evening’s peace. He cited the Zeigarnik effect, wherein uncompleted tasks are more likely to be remembered and intrude on your non-work time, interrupting your ability to recharge. But Smit found a way to neutralize these intrusive thoughts. Before leaving the office, not only
make a list of your outstanding to-dos, but take the next step and clearly plan when, where and how you will tackle each one. He found that by specifying how you will deal with these as-yet uncompleted tasks, you can put these matters out of your mind and lessen their intrusion into your private time. You need not worry about unfinished business waiting for you back at the office. There were added benefits from adopting this approach. Smit found that by using this system, participants found it easier to let go of work. Your mind can relax as it “knows” that you have thought about how to accomplish the tasks that you need to get done. By not only planning what you need to do but also when, where and how you will do it, you tell your mind in its restful time it can stop worrying. This way you can use your relaxation time to do the things you want to do, now that you have found them. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.
David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: email@example.com Blog: thoughtfullaw.com
GO ONLINE FOR MORE INFORMATION
dave’s techtips Achieving Better Work-Life Balance If getting more efficient and effective is part of the answer to achieving better work-life balance, then here are tips, apps and sites that can further you along in this journey. Inbox Zero This is a technique where you decide what to do with every email in your inbox immediately as you read it. File it, add it to a To-Do list, trash it – just don’t leave it in your inbox! Strive to empty your inbox daily. Also use SimplyFile (techhit.com/SimplyFile) which speeds up dealing with email by “guessing” which folder in Outlook an incoming and outgoing email belongs in. It is fast, accurate and amazing! Brainstorm This is sitting down and writing down as many ideas as you can generate to address a problem. Fortunately, mind-mapping software can help you organize and grow/group the ideas as they come to you. You can try: Mindjet (mindjet.com), XMind (xmind.net), Coggle (coggle.it), Freemind (freemind.sourceforge. net/wiki/index.php/Main_Page) or MindNod (mindnode.com) (the 5 best mind-mapping applications per Lifehacker.com).
Capture Your Ideas Ideas come to you at all times in the day. Use Evernote (evernote. com), Microsoft’s OneNote (onenote.com) or carry a paper notebook in your briefcase to capture those ideas before they slip away. Evernote and OneNote are also great ways of organizing digital information of all types, including web pages, video and audio. You can even dictate your notes into Evernote. Build Lists Many of us live by our To-Do lists. Time management experts tell us to have separate lists for work and for personal use. Apps such as Wunderlist (wunderlist. com) allow you to keep these lists on your smartphone, PC, Mac, Android, iPhone, Watch and more and keep them all in sync. Block off Time and Reduce Interruptions Take your To-Do list and block off time in Outlook, or whatever calendar application you are using, to allocate time to tasks. Have a sign for your door that politely asks people to not interrupt your work time unless it is an emergency. RescueTime (rescuetime.com) and similar applications will not only block Internet access for a set period (allowing you to concentrate on tasks at hand) but will provide you with a breakdown of how you spent your time during the day. Studies have shown that it takes time to spool up to really
attack a task; if you are being constantly interrupted then you are not making the best use of your time and reducing your effectiveness. Log Time Even if you don’t bill by the hour, it is a great idea to track your time to determine your effectiveness. This can also help you determine your effective hourly rate if you divide your collected fees on a matter by the actual (not just billable) time put into a matter. There are many time tracking and time and billing applications such as: PCLaw (lexisnexis.com/lawfirm-practice-management/ pclaw), Clio (goclio.com), Amicus Attorney (amicusattorney.com), Amicus Cloud (amicusattorney.com/amicus-cloud) and many others. Learn to Say No People will always request that you take on new commitments. While none of us wish to be curmudgeons who never help out others, you have to balance this time with the time spent on tasks that are important to you, and allow yourself the time to complete them. Accordingly, one important skill is to say no gracefully but firmly. © 2016 David J. Bilinsky
FEBRUARY 2016 / BARTALK 7
nothingofficial TONY WILSON
I Robot, Esq.
Will we see robot lawyers in 30 years?
stumbled on a video over Christmas about the futurist and marketing guru Faith Popcorn. She’s the one who coined the term “cocooning” (i.e. staying home to shop online or work online, rather than venturing outside to face the danger of the mall or the office.) She also coined “cashing out,” which roughly means selling the house you bought in Vancouver for four times what you paid for it and moving to Parksville for a simpler life. There are many trends she has spotted, including “vigilante consumer” (mass protesting using the buying power of the marketplace to convince me I shouldn’t eat foie gras), “clanning” (a term which totally explains the NRA, Fox News and Donald Trump) and “down ageing” (if you’re a boomer, being nostalgic for the pursuits and products of your childhood). The video I saw was prophetic. She was hired by Kodak in the late 80s to examine the “The Future of Film.” After examining the photography industry in detail, her report to Kodak said there was no future in film. The age of film had expired. The Kodak moment had passed. The future of photography will be digital. And she was immediately fired. When I was called in 1986, had I predicted what legal practice would have been like in 2016, I would have bought more Vancouver real estate. But for the newly called lawyers of 2015, 1986 must seem like ancient history. Back then, lawyers dictated letters into “Dictaphones” and gave the tapes to “secretaries,” who typed the letter on a “typewriter.” Larger documents subject to change were sent to a centralized “word processing” department where many staff members typed away on archaic terminals that were connected to a machine the size of three refrigerators. There were no PCs on every lawyer’s desk. Legal research was done with things called “books.”
8 BARTALK / FEBRUARY 2016
There was no Internet. No email. No voicemail. Smartphones and 24/7 access wouldn’t be “normal” for another decade or more. Voice recognition software (which I use regularly and highly recommend) was something out of Star Trek. Faith Popcorn’s new prediction? Robots. Humanoid robots will
There were no PCs on every lawyer’s desk. Legal research was done with things called “books.” interact with us as companions, basic service providers and even, at some level, co-workers. Someone is already testing a “robot receptionist” in an office in France; one with very human features and a level of sophistication light years ahead of what you saw at the Country Bear Jamboree in Disneyland. Aldebaran Robotics is selling “Pepper,” the world’s first personal
robot with emotions for $2,500. Pepper apparently learns from human interaction and behaviour. It can act as a “professional greeter” in retail stores or as a receptionist (but hopefully its better than the interactive voice systems used by Apple, Aeroplan, or Visa on their 1-800 numbers). If you look at the technological changes over the last 30 years and project forward 30 years, lawyers called in this decade may well be struggling with how to use (or not use) robots in practice in 2046. Will the robots of 2046 act like lawyers and meet clients, analyze statute and case law and come up with a legal answer in a nanosecond, like one of Deep Blue’s chess moves? Will they do all the “analysis” that lawyers do? Will they make solicitors obsolete by creating documents immediately after an initial client meeting and quickly vetting 1000 precedents at their disposal to produce the contract? Somehow, I don’t think so. When not to use a lawyer is as important as when to use one, and I don’t see robots having the common sense to make that decision. It’s been said before, but robots will only have real artificial intelligence when you tell them to go to work, but they go to the beach instead. The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.
guest BRANDON HASTINGS
UMP and the Un(der)insured
Three tiny letters, one big difference
hen it comes to British C o l u m b i a ’s Underinsured Motorist Protection (UMP), three little letters can mean the difference between innocent parties receiving up to $2,000,000 or being limited to $200,000. That difference comes from how awards are granted to persons injured by uninsured, versus underinsured, vehicles. The purpose of UMP is to “protect an ‘innocent’ claimant who is not able to receive [complete] compensation from liable tortfeasors” (McVea (Guardian ad litem of) v British Columbia (Attorney General), 2005 BCCA 104). Generally, certain individuals injured by an underinsured motorist have access to an UMP amount of $1 million ($2 million with optional insurance). If those same people were injured by an uninsured motorist, however, the procedure is less clear. On the one hand, an uninsured motorist arguably fits within the definition of an underinsured motorist (Regulation s. 148.1(1)), and so the plaintiff(s) may have recourse to UMP. On the other hand, there is a non-UMP procedure for recovery vis-à-vis uninsured vehicles under the Insurance (Vehicle) Act, s. 20(2). In any case, ICBC liability is limited to $200,000 (Regulation section 105(1); Shapiro v. Dailey, 2011
BCCA 424 at para 15) when an uninsured vehicle is at fault. More complexity arises when ICBC and the injured party do not agree whether a vehicle was insured at the time of a collision. A major point of contention in this regard is often implied consent: where an owner allows the use of a vehicle, it is likely insured; where it was driven without consent, however, it may be uninsured. Regulation section 148.2(4) denies UMP compensation to a party that “without the written consent of the [insurance] corporation and to its prejudice, … prosecutes to judgment….” Parties can apply under
Three little letters can mean the difference between innocent parties receiving up to $2,000,000 or being limited to $200,000. the Commercial Arbitration Act (Regulation s. 148.2(1)), but only for a determination of their entitlement under UMP, not under the uninsured motorist procedure. The issue is compounded when the defendant(s) cannot be located. Unfortunately for the plaintiff(s),
taking default judgment is probably not an option: the Insurance (Vehicle) Act allows ICBC to rectify a situation in which an uninsured motorist “does or fails to do anything that entitles the claimant to take default proceedings” (s. 20(6)). This measure is presumably meant to prevent uninjured plaintiffs from taking default against their defendant accomplices, but it also creates real problems for innocent plaintiff(s). Although the initial burden is likely on ICBC to show the vehicle was uninsured, the forum for this argument, and the degree of proof required, is unclear. In certain circumstances, it can be nearly impossible for a plaintiff to attain justice. The normal remedy of seeking default against an uncooperative defendant is probably not available by virtue of section 20(6). At the same time, the defendants are not available to be examined. This puts the plaintiff in the position of having to accept an award limited to $200,000, or somehow locate evidence that the defendant was insured, without conducting examinations for discovery. All together, when an individual is injured by an allegedly uninsured vehicle, a lack of clarity vis-à-vis uninsured vehicles and UMP shifts the bargaining power into the hands of the insurer. Worse, this may cut against the purpose of UMP: to protect innocent parties. Brandon Hastings is a lawyer at Daryl Brown and Associates, and member of the Civil Roster of Mediate BC. FEBRUARY 2016 / BARTALK 9
sections SECTION UPDATE
Keep Current A review of provincial Section meetings Commercial & Real Estate Okanagan Meeting in Review: November 19, 2015 Speaker: Barry M. Porrelli, Porrelli Law Topic: Native Land Development: Westbank First Nation
Real Property Vancouver Meeting in Review: November 24, 2015 Speakers: Iain Dixon, City of Vancouver Topic: Vancouver City’s New By-law Regulating Marijuana Dispensaries
Appellate Advocacy Meeting in Review: December 2, 2015 Speaker: Mary Ainslie, QC, Crown Counsel, Criminal Justice Branch, and Karen Horsman, QC, Legal Services Branch Topic: Appellate Advocacy: Views from Counsel from the Ministry of Justice
Commercial & Real Estate Okanagan Porrelli presented on uBarry First Nation land development with particular emphasis on the Westbank First Nation (WFN), a first nation which leads Canada in urban reserve residential and commercial land development. He is past chairman of the WFN Economic Development Commission and his office is on reserve. Barry has been involved in dozens of native developments and is a frequent presenter on the topic. He presented information on the WFN and their explosive growth; about the different legal governance regimes on reserve (Indian Act, Land Code, Self Government/ Treaty); the distinction between CP Land and Band Land; how leases are created and how much easier the process is with Land Code or Self-Governed Bands; security of leases on Westbank First Nation land with title priority protection built into their Constitution; the wide availability of title insurance on reserve; the importance of long term prepaid leases; First Nation property taxation; and the availability of Canada Mortgage and Housing Corporation coverage.
Real Property Vancouver General Practice, Solo & Small Firm – Prince Rupert, Criminal Justice – Prince Rupert and Young Lawyers – BC North Meeting in Review: December 10, 2015 Speaker: Ian Lawson, Nina Purewal, Megan Olson and Joe McCarthy Topic: Ethics and Conflicts in Small Town Practice
10 BARTALK / FEBRUARY 2016
On November 24, 2015
uthe CBABC Real Property
– Vancouver Section convened a meeting to hear from City of Vancouver lawyer Iain Dixon regarding an overview of issues related to Vancouver’s new by-laws regulating medical marijuana related retail uses (MMRUs). Mr. Dixon began by presenting
on recent changes to Canada’s federal medical marijuana regime and how these changes (together with jurisdictional trends in Colorado and nearby Washington) informed the decision to develop Canada’s first municipal bylaws regulating and licensing MMRUs. Mr. Dixon explained the land use measures that were taken in Vancouver’s Zoning Bylaw to prevent land use conflicts and reduce the social and economic impact of MMRUs, outlined changes to Vancouver’s business license regulations (aimed at protecting youths, optimizing security, mitigating nuisance and preventing crime), and concluded his presentation by detailing the municipal application process applicable to MMRUs in Vancouver.
Appellate Advocacy Mary Ainslie, QC, Crown Counsel, Criminal Justice Branch, and Karen Horsman, QC, Legal Services Branch, gave a joint presentation to the Appellate Advocacy Section on their experience as appellate advocates for the Ministry of Justice. Ms. Ainslie spoke as Crown on the criminal side and Ms. Horsman spoke as Crown on the civil side. Both have argued many complex appeals on behalf of the Ministry of Justice and their presentation focused on a range of topics relevant to both criminal and civil counsel that litigate against the government, including: Crown liability and proceedings legislation; the Crown’s decision-making process on whether to bring an appeal; and the interaction between Crown counsel and the Attorney General.
General Practice, Solo & Small Firm – Prince Rupert, Criminal Justice – Prince Rupert and Young Lawyers – BC North
There was a lively debate about the optics of remaining as counsel on a file when there is a “perceived” conflict. Different perspectives were presented as to how to proceed in a potential conflict situation.
Conflict issues arise frequent-
uly in small town practice and
can cause access to justice issues due to the limited availability of court time and alternate counsel. Joe McCarthy and Ian Lawson led a round table discussion on ethics and conflicts in small town practice. The group discussed the difference between a conflict as defined by the Code of Professional Conduct from a “perceived conflict” in the eyes of a witness or lay litigant; how to deal with limited conflicts such as cross examining a witness who is former client. The group also discussed potential conflicts that can arise when a lawyer takes on a file with both criminal and family law issues.
For CBABC members, more detailed information and available minutes from the Section meetings are online at cbabc.org under CBABC Sections & Forums. UPCOMING SECTION MEETINGS Looking for upcoming Section meetings? Check the online Sections Calendar or the CBA PD Resource site regularly as new meetings are added daily. Enrolled members automatically receive notice of their Section’s meetings by email. Enjoy the benefits of membership and enrol in Sections today. CBA members are reminded to keep their profiles up to date with the Branch to ensure they receive notices.
Section Webinars Video streaming is used everywhere from our boardrooms to our classrooms. Adding a webinar option to your next Section meeting enhances convenience, mobility and flexibility for your Section members. It is also the most cost-effective way to bring in an outof-town speaker without breaking the budget! GOOD TO KNOW… Webinar equipment is available for meetings held in Kelowna and Victoria areas. CBABC members have access to all Section webinar recordings posted on CBABC.org. Lawyers in BC attending live broadcast of PD seminars or Section meetings accredited by the Law Society of BC can count those toward their CPD requirements. Contact our Member Services at firstname.lastname@example.org to find out how we can help set up your next Section webinar.
FEBRUARY 2016 / BARTALK 11
features JOHN S. LOGAN AND DEVON H. LEHRER
Mediation and Arbitration Construction disputes
n the last 20 years, there have been major changes in the way the average construction dispute is resolved. In the “old days,” it was rare to have a mediation or an arbitration. It was common to see many construction disputes occupying our courts. The trials of some of those cases lasted months or years. Some of the disputes were many years old by the time all appeals were concluded. Today, there are far fewer construction cases in our courts and far more are in arbitration. In many cases, construction disputes start out on the arbitration track either through an arbitration clause in the construction contract or by later agreement of the parties. In the vast majority of cases, today’s construction disputes are settled at mediation. Most practitioners of construction law would probably agree that the average construction dispute is usually resolved more quickly through the use of arbitration and mediation. Although arbitration has its attractions, it is not the best option for all parties in all cases. For example, the parties must pay the arbitrator. If the amount in dispute is relatively small, the cost of the arbitrator may be prohibitive and the parties may be much better off in court. Once in court, the parties may be surprised at how quickly and cost effectively a dispute can be resolved if the parties are willing and if all of the available rules, including summary procedures, are employed.
12 BARTALK / FEBRUARY 2016
As well, many construction disputes ultimately involve quite a few parties. In court, the rules provide for the joinder of all necessary parties. Unfortunately, an arbitrator can only resolve disputes between the parties to the arbitration agreement. There have been many instances where this has resulted in a multiplicity of proceedings with attendant costs, delays and uncertainties. Another feature of arbitration, often not properly considered by counsel or parties, is that many arbitrators of construction disputes will be reluctant to allow the parties to turn the process into something akin to litigation. The parties may find themselves without equivalent discovery processes, with witness statements rather than examinations in chief, with more relaxed evidentiary procedures and potentially with time limits on crossexamination. While these differences will generally shorten the hearing, some would argue that they also increase the odds of an unfair result. Others might argue that the risk is mitigated through appointing an arbitrator with special expertise. Still others might argue that the average construction dispute does not involve matters which would give an arbitrator a significant advantage over a judge.
One of the features of arbitration which should not be overlooked is that the successful party will often be awarded full indemnity costs. In many arbitrations, this raises the stakes substantially. Some would argue that it is one of the reasons why more arbitrations than court cases proceed to final disposition. Another important feature of arbitration is the reluctance of the courts to interfere with awards. Arbitral awards are appealable in more limited circumstances than court judgments, and courts are increasingly hesitant to disturb those awards.
Lawyers leading their clients down the arbitration path, either through including arbitration provisions in contracts or otherwise, need to consider all of the above matters and decide whether arbitration will be a benefit for the client. As well, and particularly because almost all construction disputes settle at a mediation, lawyers need to understand when a matter is “ripe” for mediation, the steps necessary to that ripening, and how to conduct the mediation process to obtain the best possible result. John is the managing partner of Jenkins Marzban Logan LLP (JML) and Devon is an associate of JML. Both practise in the areas of construction and commercial litigation.
Whose Consultant is it Anyway?
Resolving disputes in construction contracts
ost standard construction contracts allow for or require the owner to appoint an engineer or architect to act as a consultant for the work to be performed by the general contractor. One of the major functions that those architects and engineers perform as a consultant is to adjudicate disputes between the owner and the contractor. These disputes can run the gamut from minor disagreements over the interpretation of the specifications to significant monetary issues related to progress payments and delays. The fact that the consultant has been appointed to the role of adjudicator by the owner and is being paid to perform that role by the owner often raises concerns for the contractor about the fairness and impartiality of the consultant. That same conflict of interest can also make an architect or engineer, who may want to be employed again by the same owner, wary about siding with the contractor in a dispute. While both the consultant and the contractor may have concerns about outside influences that may sway the judgment of the consultant, the courts have been very clear in requiring consultants to act “judicially” when interpreting contracts and adjudicating disputes. In Zurich Insurance Co. v. 356226 British Columbia Ltd.,
 B.C.J. No. 2646 (S.C.), the British Columbia Supreme Court interpreted acting judicially in that context to require a consultant to act “fairly and reasonably.” It is important that owners and consultants be aware that a contractor will not be bound by a decision of a consultant if that consultant does not adhere to the provisions of the contract and acts arbitrarily, fails to exercise his or her duties in good faith or to act impartially, or makes a decision under the owner’s influence. In addition to the obligations of the consultant to act judicially, in
An owner who unduly influenced a consultant to get their way in a dispute with a contractor would be in breach of its duty of honest performance to the contractor. Dilcon Constructors Inc. v. British Columbia Hydro & Power Authority (1992), 7 C.L.R. (2d) 22 (B.C.S.C.), the British Columbia Supreme Court held that there is an implied term that the owner,
who is given the power to name its own consultant as an arbiter or adjudicator of the other party’s claims, shall not interfere with the independence of that consultant in that adjudication. The implied contractual obligation of an owner not to interfere with the consultant’s performance of his or her duty is consistent with the recent holding of the Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71. In Bhasin, the Supreme Court of Canada held that there is a general duty of honesty in contractual performance. While this specific issue has not been litigated, it appears likely that an owner who unduly influenced a consultant to get their way in a dispute with a contractor would be in breach of its duty of honest performance to the contractor. In summary, in adjudicating disputes under a construction contract, the consultant’s duty is to decide claims and disputes impartially, fairly, and with professional competence. It is crucial to advise consultants to uphold these duties to ensure that their determinations are binding on the contractor. Similarly, it is important to advise owners not to attempt to influence their hired consultants, lest they be found to have breached their implied duty not to interfere, or the duty of honest performance of the contract. David Claassen is an associate at Jenkins Marzban Logan LLP where he practises primarily in the area of construction litigation. FEBRUARY 2016 / BARTALK 13
features MARC MacEWING
Invalid or Excessive Builders Liens Potential remedies and sanctions
he British Columbia Builders Lien Act (“Act”) and the common law provide potential remedies and sanctions for dealing with invalid or excessive builders liens. However, the available procedures do not guarantee that invalid lien claims will be discharged, excessive liens will be reduced in amount or false lien claimants will be punished, at least in timely or economical ways. This is because the courts are restrained in determining lien rights summarily and imposing sanctions, except in obvious and compelling circumstances. Section 25 of the Act allows an application to the court to cancel a lien which is filed late or with respect to which a legal action to enforce the lien is not commenced in time, is filed against the wrong property or is otherwise “vexatious, frivolous or an abuse of process.” The Court of Appeal has confirmed a restrictive view of the applicability of Section 25 to summarily attack alleged lien invalidity, and determined that the provision is limited to the specific lien defects referred to in the provision and otherwise only to circumstances in which it is plain and obvious that the lien cannot succeed. A lien claimant who loses a Section 25 application by reason of filing an improper lien could be liable under the Supreme Court
14 BARTALK / FEBRUARY 2016
Civil Rules to pay the applicant special costs. However, the court has generally been reluctant to find that the filing of an invalid or excessive lien in itself constitutes sufficiently bad conduct to justify the imposition of special costs, except in egregious cases such as when a lien claimant was engaged in wilful deception and his conduct was found to be dishonest, reprehensible and worthy of the court’s rebuke. Section 19 of the Act provides for liability for damages and costs of a person who wrongfully files a claim of lien that “does not attach” to an estate or interest in land. This provision is rarely utilized as a separate source of relief.
A claim of abuse of process is typically regarded as mainly a tactical measure in the context of other claims and defences. Section 45 makes it a quasicriminal offence to file a lien containing a false statement, which offence is punishable by a fine not exceeding the greater of $2,000 and the amount by which the lien, as filed, exceeds the proper value of the claim. The writer is not
aware of any prosecution of the quasi-criminal offence ever having proceeded in the province. Finally, the wrongful filing of a lien can expose the claimant to liability for damages for the tort of abuse of process. However, since very few lien-related actions proceed to trial, a claim of abuse of process is typically regarded as mainly a tactical measure in the context of other claims and defences. With respect to lien amount, Section 24 of the Act, which allows an application to the court to remove a lien from the property title by posting security in place of the land, empowers the court to order that the security be provided in an amount that is less than the amount claimed. The court has exercised somewhat inconsistently its power under Section 24 to order lien security in reduced amounts, generally restricting its application to clear cases of duplication of claims or the inclusion in the amount claimed of non-lienable components, such as damages or interest. Except in those cases where the very existence or the amount of a disputed lien can successfully be attacked by way of the available procedures and sanctions, a property owner or person posting security for the lien will be faced with the more lengthy process of addressing those issues as part of the overall defence of the lien claim and lien enforcement action. Marc MacEwing is associate counsel at Shapiro Hankinson & Knutson Law Corporation in Vancouver.
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Material: January 13, 2016 Insertion: January 15, 2016
features CHRISTINE ARNOLD
Need “boots on the ground” knowledge
he issues with respect to which in-house counsel at a construction company are asked to provide legal advice are likely typical for any construction lawyer, such as the tendering process, contract negotiations, subcontractor defaults, and builders’ liens. In-house construction lawyers, who may often be embedded within the operations team and work closely on projects from bidding to completion, often also experience a constant and underlying expectation from their clients that they are always prepared to provide legal advice that integrates synergistically with the commercial and operational context of a particular project and of the company as a whole. It is probably safe to assume that most construction lawyers begin their practice with limited practical knowledge about construction. Nowhere in the tomes of the traditional education leading to law is there instruction on slabon-grade, curtain wall, shotcrete, formwork, post-tension cables, and soffits, and yet these are sometimes literally the building blocks of the legal issues on which clients seek advice. Therefore, in order to effectively provide advice to clients in the construction industry, it behooves construction lawyers to acquire as much “boots on the ground” knowledge as possible about the operational and
18 BARTALK / FEBRUARY 2016
commercial aspects of construction. The following may help in working toward that goal: Seek out mentors and friends from the operations side of construction, such as project managers and superintendents, and call them when you have questions. This may prove invaluable when, for example, you are uncertain about the operational ramifications of an obligation in a contract that you are reviewing or negotiating. Leaning on those contacts to fully understand what that obligation would entail in practice will likely assist you to provide practical advice and to negotiate sensibly. Attend as many operations meetings, such as those held with the trades, as possible. Not only will you learn about construction, but you will also learn about the operational realities faced by your clients, such as those related to scheduling, which will give you important context to consider when providing advice. Take every opportunity to discuss issues with your company’s executives and to observe them making operational decisions. This is particularly important for large companies with multiple
ongoing projects across multiple branches. We are often asked to provide advice for a particular project, but the client is ultimately the company as a whole. Observing the decision-making process at the top will inform you of the direction and values that are intended for the entire company and will therefore empower you to provide advice that is valuable to the company as a whole. Visit project sites as often as you can. You will likely experience memorable “aha!” moments. Until you actually see construction in action, many of the common sources of disputes, such as delays and change orders, will likely remain abstract legal concepts. However, once you see concrete being poured, rebar being installed, or a curtain wall going up, the issues become much more tangible and you will be equipped to engage with them in a manner that allows you to advise solutions that make sense from both a practical and legal perspective. A laudable goal espoused by many lawyers regardless of the industry in which they practice is to achieve the status of the trusted advisor with a seat at the decisionmaking table. In construction, and perhaps particularly as in-house counsel, engaging in the types of professional development listed here will likely form an effective component toward achieving that goal. Christine Arnold is a contracts specialist at Ledcor Industries Inc.
The Duty of Good Faith and Conditions Precedent Has Bhasin heralded a new approach?
he Supreme Court of Canada’s decision in Bhasin v. Hrynew1 highlights a disconnect between the modern common law analytical framework applied to contractual performance and the British Columbia courts’ approach to conditions precedent. In the cases pre-dating Bhasin, British Columbia courts recognized three types of conditions precedent: (1) those that are objective; (2) those that are partly subjective/partly objective; and (3) those that are entirely subjective. While the former two types resulted in the formation of a contract, the latter did not. The “contract” was regarded as being at the offer stage and revocable at will. The British Columbia courts’ approach to conditions precedent has not been without criticism. Slatter J. of the Alberta Court of Appeal stated that finding a condition “wholly subjective” (and, therefore, finding there to have been no contract), would create “great uncertainty.” He astutely noted that in many cases a condition is not “capable of definitive objective analysis.”2 Ontario has adopted a different approach and implied a duty of good faith to the exercise of discretion granted the party who might remove the condition. The latitude to be given to that party in exercising such discretion will be informed by the wording of the condition.3
While the facts in Bhasin were unrelated to conditions precedent, the court recognized two important principles applicable to all contracts. Firstly, that good faith contractual performance is an organizing principle of contract law. Secondly, there is a common law duty of honest performance that applies to all contracts. The court stated that a contracting party must have appropriate regard for the legitimate interests of his or her contracting partner. Furthermore, in justifying its holding, the court stated that the law must reflect “the dynamic and evolving fabric of our society” and the reasonable expectations of commercial parties.
The law must reflect “the dynamic and evolving fabric of our society.” The British Columbia approach, in effect, gives no weight to those concerns. Any contractual analysis is avoided by simply holding that the existence of a subjective condition precedent precludes the formation of a contract. Contrary to the trend toward good faith, the law in British Columbia only benefits the dishonest and those who act in bad faith.
As noted, in Ontario, a duty of good faith is imposed on all parties benefitting from conditions precedent. If there were any concern that this creates unmanageable difficulties for courts and litigants, presumably it would have arisen. Such a concern would presumably also arise in the context of other contractual arrangements. Taking the approach that a subjective condition precedent precludes formation of a contract runs contrary to the holding in Bhasin, the rationale underlying that holding, and the general trend toward good faith. Furthermore, as the Ontario experience shows, it is simply not necessary. It remains an open question whether the British Columbia approach can survive when conditions precedent are viewed under the analytical approach set out in Bhasin. It would be a welcome change in the law were the British Columbia courts to recognize that Bhasin mandates adopting an approach like the one in Ontario. That is, all conditions – regardless of how subjective they may be – imply a duty of good faith. Those who would be dishonest should no longer be able to shield their conduct from review by the rule that no contract was ever formed.  3 S.C.R. 494 [Bhasin] See for example Castledowns Law Office Management Ltd. v. FastTrack Technologies Inc., 2009 ABCA 148 at paras. 69-70, Slatter J., dissenting 3 See Greenberg v. Meffert (1985), 50 O.R. (2d) 755 (C.A.) and Marshall v. Bernard Place Corp. (2002), 58 O.R. (3d) 97 (C.A.) 1
Wes McMillan is associate counsel at Hakemi & Ridgedale LLP. FEBRUARY 2016 / BARTALK 19
feature CHRIS WEAFER
Think Global, Act Local
BC Utilities Commission gives direction on need for fair and balanced terms
t the Paris climate conference (“COP21”) in December 2015, 195 countries, including Canada, adopted the first ever universal, legally binding global climate deal. In British Columbia, provincial and municipal levels of government have used a number of tools to pursue greenhouse-gas (“GHG”) reductions, including encouraging development of district energy systems (“DES”) designed to reduce GHG emissions from building stock. Numerous DES systems have been implemented with the approval of the British Columbia Utilities Commission (the “Commission”) in recent years and there are likely more to come. The Commission is responsible for approving privately owned DES systems. On December 8, 2015, the Commission issued a decision on the public interest criteria that the Commission will apply in assessing a DES application (the “Decision”), which should help lawyers representing municipal governments, DES developers and building developers. Creative Energy Inc. (“Creative”) filed an application with the Commission for a certificate of public convenience and necessity to allow a heat and hot water DES in Vancouver’s Northeast False Creek (“NEFC”). Initially the plan was to connect to Creative’s existing natural gas-fuelled steam system.
20 BARTALK / FEBRUARY 2016
The plan envisioned a second phase whereby the hot water system was to be switched to a “clean fuel” system emitting less greenhouse gas than the natural gas-fired steam system. The application pertained primarily to phase one and identification of what the “clean fuel” system would be in the second phase remains to be seen. The Commission approved parts of the application but refused to approve key aspects, emphasizing that the public interest objective of fairness to ratepayers who would be obligated to pay and developers who would be obligated to interconnect must be taken into account. Central to Creative’s application was a Neighbourhood Energy Agreement between Creative and the City of Vancouver and a proposed Connection Agreement where, through bylaws, Creative received from the City of Vancouver exclusive rights to supply a DES in the NEFC area. Additional terms included a mandatory connection requirement and other problematic clauses for developers in NEFC and the creation of a “carbon reduction rider” to be paid by ratepayers. The Commission declined to ratify these requests in its decision, while nonetheless approving the construction of the DES and directing
Creative to resubmit an amended Connection Agreement. The Commission was not prepared to ratify what was, in effect, a municipal “carbon tax” to fund a future phase of the DES system. A further direction from the Commission, of value to lawyers representing municipalities and DES developers, is that while there may be a temptation to draft preferable terms and conditions for interconnection of a DES, the Commission has an overriding jurisdiction to ensure that the terms and conditions offered are fair and reasonable, particularly where terms and conditions were not subject to prior negotiation with impacted parties. While policy makers at all levels seek to effect GHG reductions, and can often adopt a moral high ground to support aggressive actions, parties need to consider pragmatism and fairness when operating in the regulated utility environment implementing DES projects. In this proceeding, the “overreach” of the applicant and the City of Vancouver resulted in a refusal to ratify key components of their proposal. The Commission’s well-reasoned, balanced decision got it right in this case. Think global, act local, but be reasonable. Chris Weafer practises commercial and administrative law in the energy and communications sectors. He has practised at Owen Bird since called in 1989 and has been co-managing director of the firm since 2006. Chris represented various clients in the noted proceeding.
guest PROFESSOR CHRIS TOLLEFSON
The Paris Agreement and Beyond The road ahead for Canada
he Paris Climate Agreement ensures that 2015 will be remembered as a landmark year for Canadian environmental and energy law. Whether 2015 will also be a turning point is more difficult to say. The agreement is certainly an historic achievement in international diplomacy. However, its effectiveness in changing the trajectory of global greenhouse-gas emissions depends on how it is implemented by national and subnational governments. In this implementation stage, Canada faces some daunting and unique challenges. There is no dispute that Canada played a constructive role in Paris. Its “big tent” approach, aimed at promoting collaboration with the Premiers, as well as other legislators, mayors and business leaders, paid off. Canada also gained kudos for its hands-on leadership, including its role in a negotiating bloc known as the “High Ambition Coalition” that secured support for the newly affirmed aspiration to limit future global temperature increases to 1.5°C. Now comes the hard part. Within three months of the deal being gaveled, the Prime Minister and the Premiers are scheduled to reconvene for meetings to hammer out a strategy – nationally and provincially – for implementing the Paris agreement.
The legal nature of the commitments made in the agreement have drawn considerable attention. Unlike Kyoto, the Paris agreement neither sets out hard “top down” reduction targets for each party to meet nor relies on the discretionary “bottom up” model employed in the Copenhagen round. Instead, the Paris approach is a hybrid that requires parties to determine what contribution they will make knowing that their actions will be subject to rigorous and regular scrutiny. When the feds and provinces reconvene, likely in late February, the buoyant mood of Paris will be more subdued. A growing chorus of experts now say that, to meet the 1.5°C limit, current plans for further fossil fuel development in both Alberta and BC will have to be revisited. This is bad news for Alberta’s new climate strategy unveiled on the eve of the Paris meetings. Ditto for the BC government’s LNG development strategy. Here is where the Paris storyline links up with some of the other top environmental and energy law stories during the past year. The negotiations and outcome in Paris, for many, offered a welcome respite from the conflict that has dominated public discourse around energy and
environmental issues, particularly around new energy development projects. 2015 was the year that many of the conflicts – Trans Mountain, Northern Gateway and Site C – ended up in court. For Paris to be a turning point, bold changes must be made to our federal and provincial regulatory review processes. A key priority is to enhance the mandate and resources of the Canadian Environmental Assessment Agency. For example, the Agency should lead the environmental review of major new pipelines, currently a job solely entrusted to the National Energy Board. Major changes are also needed to the manner in which environmental assessments are conducted. Remarkably, for example, neither under federal nor provincial law is consideration of climate impacts a mandatory requirement. Moreover, these processes have been hobbled by confusion and uncertainty over their role in discharging the Crown’s constitutional obligations to First Nations. Fixing these problems in a creative manner that restores trust and social licence in these review processes by no means ensures that Paris will be a turning point in Canada’s fight against climate change. Unless they are fixed, however, we will lose our opportunity to implement the aspirations of Paris. Professor Chris Tollefson is Executive Director of the UVic Environmental Law Centre (ELC). In 2016, the ELC celebrates twenty years of innovation and leadership in legal education and has just launched a funding campaign to support its clinical program. FEBRUARY 2016 / BARTALK 21
news&events CBA NATIONAL NEWS
CBA Broadens Its Influence – All in One Place with CBA Influence Newsletter Submissions to government. Court interventions. Resolutions. Initiatives. Practice Tools.
CBA NATIONAL BLOG
Automated Lawyering? Not So Fast McKinsey & Company released a report late last year that concludes that, in the short term, jobs are more likely to be “redefined” by automation than eliminated: According to our analysis, fewer than 5% of occupations can be entirely automated using current technology. However, about 60% of occupations could have 30% or more of their constituent activities automated. In other words, automation is likely to change the vast majority of occupations – at least to some degree – which will necessitate significant job redefinition and a transformation of business processes. Mortgage-loan officers, for instance, will spend much less time inspecting and processing rote paperwork and more time reviewing exceptions, which will allow them to 22 BARTALK / FEBRUARY 2016
process more loans and spend more time advising clients. Similarly, in a world where the diagnosis of many health issues could be effectively automated, an emergency room could combine triage and diagnosis and leave doctors to focus on the most acute or unusual cases while improving accuracy for the most common issues. Dana Remus of the University of North Carolina School of Law and Frank Levy of MIT draw a similar conclusion as it pertains to lawyers. The authors argue that most predictions surrounding the automation of legal service “overstate” the impacts it may have on employment in the legal industry. Read the full article at nationalmagazine.ca/Blog/ January-2016/Automatedlawyering-Not-so-fast.aspx.
The CBA’s Legislation and Law Reform Committee and member volunteers stay busy all year speaking to governments, courts and regulators on your behalf. And CBA would like you to know more about it. Beginning in February, you’ll start receiving CBA Influence. The email newsletter will be delivered on the first Tuesday of every month, except in January and August when Parliament takes a break. The newsletter will have two parts: First, Focus on Parliament – a monthly status report on proposed federal legislation and regulatory changes, and government consultations. Designed originally for Section and Forum leaders, it will now be available to all CBA members. Second, a compendium of blog posts about recent CBA initiatives from the Our Work section of cba.org, to provide a timely snapshot of what the CBA is doing. The CBA’s advocacy work is consistently identified as being of significant value to members. With this newsletter we hope to show you the return on your investment.
CBA NATIONAL NEWS
Michèle Moreau of Montréal Named Incoming Second VP CBA President Janet Fuhrer is pleased to announce that Michèle Moreau of Montréal is the incoming CBA Second Vice-President. Her term begins in September 2016, and she will be acclaimed at the CBA Mid-Winter Meeting of Council in February. An active member provincially and nationally, Michèle Moreau served as Quebec Branch President in 2013-2014. She is currently on the national Access to Justice Committee and was a member of the Pro Bono committee from 2011 to 2013. She was Chair of the Professional Development Committee in 2011-2012. Michèle has been a member of the Quebec Bar since 1990 and is Executive Director of the Canadian Institute for the Administration of Justice. She was founding Director of Pro Bono Québec and the Centre de justice de proximité du Grand Montréal. Janet Fuhrer congratulated Michèle on behalf of the CBA’s Board of Directors and staff.
Letter to the Editor
A response to the October 2015 issue regarding HELLO MEMBERS by Jennifer Chow I usually read BarTalk in my office in downtown Vancouver when it arrives in its pristine plastic wrapping. I flip through the glossy pages and dwell on anything that catches my eye. I received my October issue electronically on my laptop at the Harvard Law Library, where I spend most of my time in pursuit of an LL.M. this year. I will never forget the first thing I saw when I opened the link: it was a message from the new CBABC President, Jennifer Chow. This message from the President was unforgettable to me for two reasons. One, Ms. Chow is the first visible minority president of CBABC. Female. Asian. Spunky. A beacon of inspiration for young female Asian lawyers like myself. Personification of a sea of change in a city known as the most “Asian” outside Asia, where
a million ethnically Asian residents walk the streets, and zero sit on the Court of Appeal Bench. Two, Ms. Chow embraces diversity as “the new gold standard.” She cherishes “every colour of the rainbow.” She celebrates PRIDE and Hello Kitty! Born in China, raised in New Zealand, and educated in Canada, I had never, before that moment, been more proud to be Canadian. Having now lived for four months in the nation of Campus Gun Carry, Ms. Kim Davis, and the American Security Against Foreign Enemies (SAFE) Act of 2015, I cannot wait to get home to Canada. Ms. Chow is absolutely correct that the new generation of lawyers holds high expectations. We expect to work in a society of inclusion. We expect to practise in a community of equality. We expect to live in a country
that prides itself on its ability and compassion to help those in dire need – those who, by no fault of their own, were not lucky enough to be born, raised or educated in this great country of ours. We, as the most privileged members of this inclusive society, must advocate against Mr. Trump’s outlandish remarks, the SAFE Act and similar attempt at exclusion, in favour of safety and acceptance for our Syrian counterparts. There is a lot that we, individually as lawyers and collectively as the legal community, can do to assist these people in dire need. Groups of five or more can sponsor a refugee or a family of refugees to come to Canada. Many aid agencies are receiving donations. We are a helping profession and these people need our help now.
— Yun Li-Reilly
FEBRUARY 2016 / BARTALK 23
news&events CBA WLF EVENT RECAP
Third CBA Women Lawyers Forum National Leadership Conference Recap The third CBA Women Lawyers Forum National Leadership Conference was held in Vancouver on November 20 and 21. The conference sold out with 260 participants and drew lawyers from across the country. Fifty-five percent were from BC. Sponsorship by four leading firms – Miller Thomson, Blakes, DLA Piper and Bull Housser plus Goldcorp – was crucial in assisting to bring in speakers from outside of Vancouver. The conference theme was “Creating Our Future.” The WLF believes that leadership training is essential to keeping women in the practice of law and assisting women to move into more senior positions. Training that focuses only on the law or practice management misses an essential piece of personal and career development. Leadership skills give women lawyers the confidence and the resiliency to move forward and the ability to change their workplaces to better support their colleagues, their clients, their families and themselves. Leadership skills include how to develop a leadership presence that is authentic for women and recognizes that leadership does not need to look like the primarily male models often associated with senior positions. Women need to learn how to be resilient in handling both personal and professional responsibilities; how to develop sponsors, not just mentors; and how to adopt a growth mindset and an understanding of the politics and culture of law firms. The highlight of the conference was a magical two-hour conversation on Saturday morning between Justice Rosalie Abella of the Supreme Court of Canada and the Rt. Hon. Kim Campbell. The moderator was the Hon. Kerry-Lynne Findlay, the first Chair of the BC and national WLF. It was a gift for those present to hear their frank, funny and inspiring stories of the challenges and triumphs of their careers in the law and politics. A book was also launched at the conference “Leading The Way: Canadian Women In The Law” (LexisNexis) by two Blakes lawyer authors, partner Julie Soloway and associate Emma Costante. The book profiles prominent Canadian women lawyers over the past one hundred years. The book launch perfectly complemented the conference, showing how far women in Canada have come and inspiring women to continue leading the way.
CLEBC Update CLEBC’S REAL ESTATE AND CONSTRUCTION LAW RESOURCES SUPPORT YOUR PRACTICE BC Strata Property Practice Manual – Strata construction continues to thrive in BC. An essential practice tool for lawyers working in the field. BC Real Estate Development Practice Manual – Covers all legal steps in real estate development from land acquisition to subdivision regulation and everything in between.
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BC Real Estate Practice Manual – Leads you quickly and completely through the necessary steps of a conveyance. Includes practical advice for a collapsing deal. BC Mortgages Practice Manual – Explains the practical implications of the rules governing BC mortgage transactions. This key resource answers your questions. Land Title Practice Manual – The authoritative guide; essential for all who make applications to the LTSA. Commercial Leasing – Annotated Precedents – Helps you draft documents that reflect current law and practice. Know what’s critical
to include – and what you can afford to give up in negotiation. Real Estate Financing – Annotated Precedents – This trusted resource is the package of tools you need to document complex real estate financing deals. BC Builders Liens Practice Manual – Supports those developing their knowledge, and provides quick answers for legal issues under the Builders Liens Act. For more information about CLEBC publications, see cle.bc.ca.
BC LEGISLATIVE UPDATE
ACTS IN FORCE
Current from October 20, 2015 to December 1, 2015 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org. MOTOR VEHICLE AMENDMENT ACT, 2015, S.B.C. 2015, C. 13 (BILL 15) Sections 5, 23, 31, 34, 47, 51, 55 and 56 are in force November 2, 2015 OFF-ROAD VEHICLE ACT, S.B.C. 2014, C. 5 (BILL 13) Sections 13(1)(b) and (c) and (2), 14(a) to (c), 15, 18 to 20, 26(1)(d), (e), (g) and (h), (2)(c), (d) and (f), 30(2)(h), (i) and (n)(i) and 50 are in force November 1, 2015 SOCIETIES ACT, S.B.C. 2015, C. 18 (BILL 24) Sections 1 to 263, 265 to 268, 270 to 274, 276, 279, 281 to 288, 291 to 295, 297 to 299, 301 to 322, 324, 325, 327 to 338, 340 to 349, 351 to 354 and 356 to 365 are in force November 28, 2016
BRANCH & BAR
13 CBABC Full Day Professional Development in Terrace 16 CBABC PD Webinar: Litigation Skills Series 2016 – Module 1: The Inconvenient Truth – Not all Affidavits are Created Equal 18 CBABC Full Day Professional Development in Parksville 20-21 CBA Mid-Winter Meeting of Council — Ottawa 24 CBABC PD Webinar: It’s A New Dawn, It’s A New Day – Life Interest Trusts 24-25 CBABC Family Law – Okanagan & ADR – Okanagan Joint Conference — Big White Ski Resort, Kelowna
MARCH 5 Provincial Council Meeting — Richmond 9 CBABC PD Webinar: Advocacy Gone Bad – Lawyers Bullying Lawyers
Unite with Canada’s leading legal minds at the CBA Mid-Winter Meeting of Council. Join the CBA for this exciting opportunity to debate and vote on current legal issues in CBA policy resolutions. Alongside a wealth of occasions to further engage with your fellow CBA members, Mid-Winter 2016 also features in-depth discussions about CBA Re-Think – don’t miss out on this unique chance to have your voice heard. The CBA looks forward to seeing all members of Council and observers at this year’s governance meeting. Non-voting Council members are also invited to attend, and are encouraged to seek appointment as alternate voting members from their Branch. For full details go to cbamidwinter.org
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news&events TIPS FROM
Get access to a wide variety of subscription services by coming in to your local Courthouse Library branch and using one of our public access computers. Here are some great ways to access up-to-date resources on real estate law at your local Courthouse Library branch: CLE
ONLINE: If you practise in BC and are on the lookout for the most current legal resources, chances are you are already familiar with CLE Online. Not to be overlooked is CLE Online’s extensive coverage of real estate law. Explore the practice manual collection for access to the BC Real Estate Practice Manual in addition to practice manuals on real estate development, property assessment, mortgages, real estate financing and much more. Also not to be missed is the extensive collection of precedents and course materials found on CLE. ONLINE: Access the BC Real Estate Law Guide to learn about the latest legal developments in real estate law.
BC Law Week Law Day in Canada is April 14, 2016. Events will be held in various communities throughout BC in April, including open houses, public law classes, a high school forum with the three Chiefs, the Barry Sullivan Law Cup public speaking competition, and Dial-a-Lawyer Day on April 16. The theme of Law Day is Access to Justice.
For more information on 2016 Law Week activities and ways to get involved, visit bclawweek.org.
CBA NATIONAL NEWS
Legal Ethics in a Digital World The CBA Ethics and Professional Responsibility Committee has released updates to its guidelines for meeting ethical obligations while using technology. With a focus on security, marketing and providing services electronically, this practical resource, Legal Ethics in a Digital World, provides a guide for managing the risks inherent in using technology in your practice. Among other updates in this rapidly evolving field, the guide responds to the CBA Access to Justice Committee’s call to action in its Reaching Equal Justice report by highlighting how to use technology in your practice to enhance access to justice, and avoid creating unintentional barriers to access. You’ll want to include this guide in your toolkit of critical practice resources.
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CBA NATIONAL NEWS
CBA Blog Wins Clawbie The CBA National blog is the winner of a 2015 Clawbie (Canadian law blog award) in the Legal News category. Congratulations to the team! Announced in December and now in its tenth year, the Clawbies continue in their mission to draw attention to the growing number of valuable legal blogs in Canada, and to welcome newcomers to the scene by giving them some helpful exposure. The CBA National blog joins other leaders in the field, namely Legal Feeds, the blog of Canadian Lawyer magazine, and the Legal Post, the blog of the National Post’s legal section. The judges recognized CBA National as “changing the standards by which legal magazine blogs are judged.” CBA National brings different perspectives into the many debates about legal issues, generates new ideas, and examines new ways of addressing challenges facing the legal profession.
grantsapproved LAW FOUNDATION LAW FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA
$75,000 POWELL RIVER COMMUNITY SERVICES ASSOCIATION Poverty Law Advocacy Program
$7,000 THOMPSON RIVERS UNIVERSITY Teaching the Future of Law in the Canadian Law School
$55,000 MULTIPLE SCLEROSIS SOCIETY, BC & YUKON DIVISION Volunteer Legal Advocacy Program
$3,500 MATHEW GOOD Justice Delayed – Trends in Length of Hearing, Judgment Length and Time to Judgment, 1970-2015
Outlined below is a list of grants adjudicated at the November 21, 2015 Board of Governors’ meeting.
$45,000 PRINCE RUPERT UNEMPLOYED CENTRE SOCIETY Advocacy Program
Funding totalling $6,900,500 was approved for the following 19 continuing programs:
$35,000 PRO BONO STUDENTS CANADA – UBC Community Placement Program
$2,955,000 LEGAL SERVICES SOCIETY Legal Information and Legal Assistance Program
$30,000 PRO BONO STUDENTS CANADA – UVIC Student Placement Program
$2,245,000 BC COURTHOUSE LIBRARY SOCIETY Operating Grant
$20,000 DEBATE AND SPEECH ASSOCIATION OF BC Law Foundation Cup
UNIVERSITY OF VICTORIA $340,000 – Law Centre Clinical Program $38,000 – Public Interest Work Placements LAW SOCIETY OF BC $215,000 – Professional Legal Training Course $70,000 – CanLII Virtual Law Library $175,000 BC CIVIL LIBERTIES ASSOCIATION Major Programs $175,000 FIRST UNITED CHURCH COMMUNITY MINISTRY SOCIETY Poverty Law Advocacy Program $174,500 UNIVERSITY OF BRITISH COLUMBIA Indigenous Community Legal Clinic $80,000 BC FREEDOM OF INFORMATION AND PRIVACY ASSOCIATION Law Reform & Public Legal Education Program $78,000 HAIDA GWAII LEGAL PROJECT SOCIETY Legal Education/Advocacy Program $75,000 NANAIMO CITIZEN ADVOCACY ASSOCIATION Legal Advocacy Program
$20,000 FOUNDATION FOR LEGAL RESEARCH Legal Research Program
Funding totalling $99,500 was approved for the following seven Legal Research grants: $20,000 BEVERLY FROESE Equality, Dignity and Inclusion: An Evaluation of BC’s Mental Health Laws, Policies and Service Standards $20,000 KAMALJIT LEHAL An Exploration of the Effectiveness of Current BC Models of Family Mediation in Cases of Violence Against Women UNIVERSITY OF VICTORIA $20,000 – Indigenous Law: A Toolkit for Navigating Issues of Gender and Sexuality $14,000 – The On-Going Pursuit of Public Sector Integrity: Awarding Government Contracts and Financing Political Parties $15,000 UNIVERSITY OF BRITISH COLUMBIA Should the Small Claims Court of British Columbia be Given an Explicit Equitable Jurisdiction?
Funding totalling $321,000 was approved for the following 11 grants: $60,000 MEDIATE BC SOCIETY Family Unbundled Legal Services Project OPPORTUNITIES CAREER SERVICES SOCIETY $62,500 – Poverty Law Advocacy Program $12,000 – Relocation Costs UNIVERSITY OF BRITISH COLUMBIA $50,000 – Innocence Project $40,000 – Law Foundation Public Interest Awards $30,000 UNIVERSITY OF VICTORIA Law Foundation Public Interest Awards PEOPLE’S LAW SCHOOL SOCIETY $25,000 – Organizational Review $5,000 – Collaboration Funding $20,000 THOMPSON RIVERS UNIVERSITY Law Foundation Public Interest Awards $11,500 VANCOUVER SUMMER MENTORSHIP SOCIETY Summer Mentorship Program $5,000 JUSTICE EDUCATION SOCIETY OF BC Collaboration Funding
For details of all programs and projects that received funding, please visit lawfoundationbc.org.
FEBRUARY 2016 / BARTALK 27
WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\
CBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, advance one’s career, practice and business. We pride ourselves bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management components for 2016 Law Society reporting.
Module 2: The XFD Files – Examination for Discovery, the Truth is out There
Upcoming Webinars LITIGATION SKILLS SERIES 2016 – AFFIDAVIT DRAFTING, EXAMINATION FOR DISCOVERY & TRIAL PREPARATION All modules in this series are moderated by Rhona M. Lichtenwald, Hillcrest Law & Mediation. Take all three modules in the series at a reduced rate, and obtain six hours of CPD.
Module 1: The Inconvenient Truth – Not all Affidavits are Created Equal Date: February 16, 2016 Time: 4:30-6:30 p.m. Speakers: Master Heather M. MacNaughton, Supreme Court of British Columbia; Claire E. Hunter, Hunter Litigation Chambers; and Meghan J. Selinger, Hamilton Fabbro
Date: April 14, 2016 Time: 11:30 a.m. – 1:30 p.m. Speakers: The Honourable Mr. Justice Kenneth N. Affleck, Supreme Court of British Columbia; Meghan J. Selinger, Hamilton Fabbro; and Jonathan J. Weisman, Holmes & King
Module 3: Trial Without Error – Top Trial Preparation Tips & Techniques
Date: May 10, 2016 Time: 11:30 a.m. – 1:30 p.m. Speakers: The Honourable Judge Patricia M. Bond, Provincial Court BC-Surrey; and Janette E. Kovacs, Waterstone Law Group LLP
It’s A New Dawn, It’s A New Day: Life Interest Trusts Date: February 24, 2016 Time: 11:30 a.m. – 1:30 p.m. Speakers: Kim Karras, Brawn Karras & Sanderson; David G. Thompson, Thorsteinssons LLP
Advocacy Gone Bad: Lawyers Bullying Lawyers
Date: March 9, 2016 Time: 4:30–6:30 p.m. Speakers: Lyle Gordon Harris, QC, Harris & Brun and Master Heather M. MacNaughton, Supreme Court of British Columbia
At the Crossroads: When Personal Injury & Criminal Law Collide Date: April 5, 2016 Time: 11:30 a.m. – 1:30 p.m. Speakers: Ken Armstrong, Stewart & Company, Vancouver; Mike Brundrett, Crown Counsel, Criminal Appeals & Special Prosecutions, Vancouver; and Marilyn Sandford, Ritchie Sandford, Vancouver
Ready, Set, Go: the New BC Societies Act
Date: April 19, 2016 Time: 11:30 a.m. – 1:30 p.m. Speakers: Kate Bake-Paterson, DLA Piper; Michael Blatchford, Bull Housser; and Michael Butterfield, Butterfield Law
Open Discussions on Current Topics with the Three Chiefs * Complimentary for CBA members
Date: April 28, 2016 Time: 11:30 a.m. – 1:30 p.m. Speakers: The Honourable Chief Justice Robert J. Bauman, Court of Appeal of British Columbia; The Honourable Chief Justice Christopher E. Hinkson, Supreme Court of British Columbia; The Honourable Chief Judge Thomas Crabtree, Provincial Court of British Columbia
On Demand CPD Missed the live webinar? Check our library for available on-demand webinar repeats and e-learning modules.
RECENTLY ADDED WEBINAR REPEATS: Your
Client is on the Phone. There was a Workplace Fatality. And the RCMP are at Your Door Negotiation Basics – Ten Key Steps to a Successful Negotiation Outcome Technology for New Users: How to Use Technology in a New or Existing Practice for $200 a Month Understanding
28 BARTALK / FEBRUARY 2016
EMAIL: ADS@CBABC.ORG \\
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email@example.com FEBRUARY 2016 / BARTALK 29
barmoves Whoâ€™s Moving Where and When Nevin Fishman
joins Branch MacMaster LLP as partner, bringing nearly 30 years experience as a seasoned litigator, notably in the health law field, advising physicians in medical malpractice lawsuits and professional regulation matters.
has joined Lakes, Whyte LLP in North Vancouver. Darcy brings 20 years of litigation experience and will continue to act in Family, Civil and Criminal trial matters.
has joined Harper Grey LLP as associate counsel with their Business Law group and will be co-chairing the group. Steven was called to the BC Bar in 1988.
has joined McMillan LLP as an associate with their Capital Markets and M&A group. Sasa was called to the BC Bar on May 20, 2015.
has joined Harper Grey LLP as associate counsel with their Business Law group. Prentice was called to the BC Bar in 2006.
has joined McMillan LLP as an associate with their Capital Markets and Regulatory groups. Marina was called to the BC Bar on May 20, 2015.
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SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND A HIGH-RESOLUTION PHOTO TO BARTALK@CBABC.ORG NOW. TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1602.
Rebecca Rock has joined McMillan LLP as an associate with their Business Law group. Rebecca was called to the BC Bar on September 2, 2015.
Linda Yang has joined McMillan LLP as an associate with their Litigation group. Linda was called to the BC Bar on September 2, 2015.
newmembers November & December 2015 Lawyers Shabana S. Ali
Cote & Evans Trial Lawyers Surrey Geoffrey R. Geldart
SNC â€“ Lavalin Inc. Vancouver
Articling Students Brendan W. Dawes Nathan Lapper
joined the partnership of Koskie Glavin Gordon as of January 1, 2016. She has worked as an associate with the firm, practising union-side labour law, since 2007.
Miles, Zimmer & Associates Cranbrook
Twining, Short & Haakonson Vancouver
Singleton Urquhart LLP Vancouver
Jacobus Hendrik Van Wyk
Bull Housser Vancouver
Christine D. Lowe
Vancouver Harj Gill
Abbotsford Michael Henricksen
Monika J. Loustel
Pryke Lambert Leathley Russell LLP Richmond
brings his personal injury practice and experience to Jiwa Law Corporation, a personal injury boutique firm in Fairview. He will focus on the rights of those injured in personal injury claims and ICBC claims.
FEBRUARY 2016 / BARTALK 31
Help your clients plant their legacy today. Find out how at vancouverfoundation.ca/advisors or call Kristin at 604.629.5186
A proud member of community foundations across Canada. To find a community foundation near you, visit communityfoundations.ca
RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3
The BC real estate market continues to remain topical. In this first issue of 2016, BarTalk covers some of the legal and practical issues th...