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November 2011

BRITISH COLUMBIA EDITION EDITION

Legal Research Seminar NEXT WEEK- only a few spots remain...

Learn and Earn 6 CPD credits while learning from a panel of research experts on November 15, 2011- see pp. 2-4

INSIDE THIS ISSUE: Featured Cases: 6

Insurance Law; Insurers; Duty to Defend

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Family Relations; Persons Entitled to Relief; Wills Variation

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Family; Division of Assets; Contribution of Parties

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Insurance Law; Claims Against Unknown Parties

Wills and Estates; Payment of Debts

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ONPOINT LEGAL RESEA RCH Prepare to Win.


THIRD ANNUAL ONPOINT FEATURE COURSE

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Legal Research: From Problems to Solutions 2011

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arn CPD Credits INCLUDES 2 HOURS ETHICS/PRACTICE MGMT COMPONENT

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Comments from 2010 attendees:

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“For a lawyer in private practice who wants to research the law

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November 15, 2011 The Sutton Place Hotel 9:00 am - 4:00 pm

with confidence, it was well worth the price of admission.”

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“Excellent speakers – I only dream of being as well

educated and well spoken.” “I really enjoyed the course. I found the information

“A practical and comprehensive

very practical and

summary of legal research tools and

pertinent to my work.”

techniques. The presenters really knew their craft.”

Sponsored by:

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Legal Research: From Problems to Solutions 2011

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nPoint Legal Research L.C. has been researching for other lawyers for over 12 years. In the third annual presentation of this course, OnPoint research lawyers and guest research experts will draw from their experience to demonstrate how to map out research strategies, examine which resources to use to tackle various problems, and navigate through electronic sources. We will provide countless “insider” tips, discuss legislative research techniques, and lead an interactive session on how to approach a sample legal issue.

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Earn 6 CPD Credits INCLUDES 2 HOURS ETHICS/PRACTICE MGMT COMPONENT

Who should attend? We have created this course for all levels. It is appropriate for senior lawyers wanting a refresher course or needing to be updated on the lastest techniques, junior lawyers wishing to become better researchers, and students wanting to start off their careers with valuable tips from research specialists.

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Paralegals will also benefit from this course.

Our Panel Knows Research

Chair: Sarah Picciotto, Founder of OnPoint Legal Research

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Ellen Vandergrift, OnPoint Legal Research- Ellen has a winning

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combination of a keen analytical mind, a clerkship with the Alberta C.A., a stint at Fraser Milner, and a drive to keep digging until she finds the right answer. If it’s out there, Ellen will find it! You will learn from her years of experience when to use what resource and how best to use it.

Gregory Pun, Alexander Holburn Beaudin & Lang, LLP- Greg is Alexander Holburn’s Director of Research and heads the Appeals Practice Advisory Team. As research lawyer, his practice is primarily focused on providing research memoranda to colleagues, and assisting in the preparation and drafting of opinion letters and trial arguments. As head of the Appeals Practice Advisory Team, he assists lawyers inside and outside of the firm with the preparation of all appeal materials and with appellate advocacy.

Meghan Maddigan, Legal Community Liason, Courthouse Libraries BC- Meghan is the point person for training at the library and is committed to

helping lawyers succeed in their practice through outreach. Meghan will show you ways that you can conduct legislative research effectively and efficiently. Prior to joining Courthouse Libraries BC in 2010, Meghan practiced law for five years with a small firm where she gained first-hand experience learning what is required to conduct successful legal research in private practice.


Agenda- Legal Research: From Problems to Solutions 2011 8:30- 9:00

Registration and Pastries and Coffee

9:00- 9:20

Welcome from Sarah Picciotto, Founder of OnPoint

9:20-10:00 Gregory Pun- “Preparing for the Trek”

- The How and Why of legal research - The importance of obtaining the proper facts, instructions, and scope of the research - Ethical and practice management considerations

10:00- 10:30 Ellen Vandergrift- “Starting Out on the Expedition and Staying on the Right Course”

- The importance of paper and online secondary materials in legal research (texts, digests, encyclopedias and course materials) - Tips on the best secondary sources to use and how to make the most of them - Making good research choices- when to stop, when to take a different path, when to check back with the client or supervising lawyer

10:30- 10:45 Coffee break (with pastries) 10:45- 12:00 Ellen and Gregory- “Navigating the Electronic Terrain”

- Insider tips from research lawyers who performs computer research every day - Cost-efficient uses of electronic resources - Pointers on when to use which resource for what task - Tips on how to construct effective searches and manage search results - Noting up as an essential research tool - Important resources for keeping current

12:00- 1:00 Lunch (on own) 1:00- 2:00

Meghan Maddigan- “Tackling Legislative Research Like a Pro”

- Making it modern: How to ensure you are looking at the most current, in-force laws - So many sources, so little time: Where to start and finish when looking at legislation - Working backwards: How to trace specific provisions through time - Who said what: Finding judicial consideration of legislation


Agenda (cont.) 2:00- 2:20

Gregory- “Legislative Research- Some Roads Less Travelled”

- Points on legislative research (electronic and paper) - Hansard, bills, proclamations, regulations, Court Rules - Old and repealed statutes

2:20- 2:45

Earn 6 CPD Credits INCLUDES 2 HOURS ETHICS/PRACTICE MGMT COMPONENT

Ellen- “Mapping Your Route”

- Keeping notes for future research or defend research choices - A review of our Research Checklist

2:45- 3:00

Coffee break (with goodies)

3:00- 4:00

Ellen and Gregory- “Time to Take the Plunge: A Sample Research Issue, Step By Step”

Course Registration Form Date: Format: Location: Price:

November 15, 2011- 9:00 to 4:00 (continental breakfast starts at 8:30) Live Program with Materials The Sutton Place Hotel, Vancouver Regular: $495; Paralegal: $425; Student: $295

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Saanich (District) v. Aviva Insurance Company of Canada, 2011 BCCA 391 Areas of Law: Insurance Law; Insurers; Duty to Defend Under Appeal: Justice Wedge

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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that the Associations and the District were occupiers of the premises within the meaning of the Occupiers Liability Act. The District demanded that Aviva defend it in the action filed by Mr. Wright, but the insurer refused. The District thus petitioned for an order requiring Aviva to defend the action on its behalf and to indemnify it for any damages that it may be ordered to pay. The chambers judge held that Aviva had a duty to defend the District in the negligence suit. Aviva appealed the order, claiming that the judge erred in analyzing the issue based on principles of no-fault insurance instead of principles of third-party liability. It asserted that the judge mischaracterized the nature of Mr. Wright’s claim against the District as one for bodily injury arising from lacrosse activities. Aviva further argued that it had no duty to defend the District under the Act because the facts pleaded pursuant to the Act pertain exclusively to the District as an occupier of the premises and do not arise from lacrosse activities.

he appellant was Aviva Insurance Company of Canada (“Aviva”). The respondent was the Corporation of the District of Saanich (“District”). The District rented out a specific area of the recreation centre to the Pacific Rim Field Lacrosse Association and B.C. Lacrosse Association (the “Associations”) for lacrosse practices. Aviva was the Associations’ insurer. The insurance policy covered bodily injury and property damage arising out of lacrosse activities. The District was an additional insured solely with respect to liability which would arise out of the Associations’ activities. Sometime in November 2007, Mr. Wright, while at the recreation centre to attend a dog obedience class, suffered injury and damages when he was hit in the head by an errant lacrosse ball. He sued the Associations and the District for damages arising from negligence. Mr. Wright claimed

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Saanich (District) v. Aviva Insurance Company of Canada, (cont.) APPELLATE DECISION

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he appeal was dismissed. The Court of Appeal observed that the only issue before the chambers judge was whether the District’s alleged liability arose from lacrosse activities. The Court found no error in the judge’s analysis of the extent to which the claim against the District arose out of the lacrosse activities. The Court also upheld the chambers judge’s appreciation of the claim against the District as one that encompassed the actions of the lacrosse player who threw the ball and the actions or omissions of the District that resulted in Mr. Wright’s injury. The Court agreed with the chambers judge that there was no allegation of independent fault against the District. Mr. Wright would not have sued the District absent the lacrosse activities which resulted in the accident. The Court further agreed that the claim against the District under the Act arose out of lacrosse activities. Hence, Aviva had a duty to defend the claim against the District under the Act. October 2011

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Doman Peri v. Doman Estate, 2011 BCCA 401 Areas of Law: Family Relations; Persons Entitled to Relief; Wills Variation Under Appeal: Justice Burnyeat

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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statement of claim arguing that it was an abuse of process for the appellant to defend the action because a substantially similar dispute was already resolved by the Supreme Court in favour of the plaintiff in Bahry v. Lindell Beach Holiday Resort Ltd., 2009 BCSC 632. The chambers judge agreed with the respondents and allowed the rescission of the impugned contract. On appeal, the appellant argued that the chambers judge erred in considering its defence as an abuse of process. It also argued that contrary to the chambers judge’s finding, the issue of legal non-conforming use was neither raised nor determined in Bahry. The appellant further requested that the Court of Appeal consider the pleadings in the Bahry action which were not before the chambers judge, as they would show that the non-conforming use issue was never considered in Bahry.

he appellant was Lindell Beach Holiday Resort Ltd. The respondents were George Petrelli and Rita Petrelli. In 2007, the respondents bought a holiday home at the appellant’s trailer park. Their friends, the Bahrys, bought a unit at the park a few months before the Petrellis did. In 2008, the Bahrys successfully sued for the rescission of the contract of sale of their holiday home based on the claim that the location of their unit in the park violated municipal bylaws, and hence constituted a fundamental breach of the sale agreement. The Petrellis commenced a similar action against the appellant in 2009. The appellant filed a statement of defence, asserting, inter alia, that the location of the Petrellis’ unit in the park was a legal non-conforming use of the land. The respondents amended their

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he appeal was allowed. The Court held that it could not take judicial notice of the pleadings in Bahry because the contents of court records were neither matters of general knowledge nor could they be readily ascertained. The Court nonetheless proceeded to consider the pleadings as fresh evidence because they were essential to the determination of whether there was an abuse of process. They would also be useful in clarifying the procedural history of the case. The Court ruled that contrary to the chambers judge’s finding on issue estoppel, the matter of legal non-conforming use was not litigated in Bahry. Hence, the appellant did not abuse the process when it raised the defence to the respondents’ claim. The order of the chambers judge was set aside and the matter was remitted to the Supreme Court for a new trial.

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Beaverstock v. Beaverstock, 2011 BCCA 413 Areas of Law: Wills and Estates; Payment of Debts Under Appeal: Justice Leask

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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he appellant was the Workers’ Compensation Board of British Columbia (“Board”). The respondent was Avtar Singh Bagri. On September 11, 1992, Mr. Bagri sustained injuries to his upper right back and shoulder while working as a lumber grader at a sawmill. He was granted workers’ compensation benefits until March 7, 1993. In 1994, Mr. Bagri was diagnosed as suffering from fibromyalgia. He requested to have the condition included in his compensation claim for the 1992 injury, but his request was denied by the claims adjudicator and appeals to the Review Board and the Board’s Appeal Division were unsuccessful. In August 1996, Mr. Bagri requested that a medical review panel examine whether his fibromyalgia condition was caused by the 1992 work-related injury. Before the panel was constituted, a psychiatrist diagnosed Mr. Bagri as suffering from depression

and anxiety which Mr. Bagri also attributed to his 1992 work-related injury. The adjudicator refused to include the psychological condition in the compensation claim after finding no connection between Mr. Bagri’s psychological condition and the 1992 accident. The medical review panel was constituted with two rheumatologists and one family physician. The dispute before the panel was whether Mr. Bagri’s fibromyalgia was causally related to the compensable injury he sustained in 1992. In 1998, the panel issued a certificate stating that Mr. Bagri suffered from a generalized anxiety disorder which was not caused by the 1992 accident. The panel also found that Mr. Bagri did not suffer from fibromyalgia. Based on the panel’s findings, the adjudicator denied Mr. Bagri’s claim for further benefits. As the Review Board denied his appeal, Mr. Bagri elevated the matter to the Appeal Division, but the appeal was later withdrawn. In 2003, Mr. Bagri’s lawyer filed a petition for judicial review, naming the Board as the only respondent and seeking to set aside the medical review panel’s certificate on the ground that it was unlawful for the panel to have made findings about Mr. Bagri’s psychological conditions as this was not within the panel’s area of specialization. The chambers judge allowed the petition and set aside the panel’s certificate. She concluded that the certificate was unreasonable because Mr. Bagri had not expected that his psychological conditions would be considered by the panel and he was not given a fair opportunity be heard on the matter. The chambers judge also set aside the decision of the Review Board upholding the adjudicator’s finding that Mr. Bagri’s anxiety disorder was not caused by the 1992 accident. The Board appealed, arguing that the chambers judge erred in finding that the certificate of the medical review panel and the decision of the Review Board were unreasonable.

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Beaverstock v. Beaverstock, (cont.) APPELLATE DECISION

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he appeal was allowed and the petition for judicial review was dismissed. The Court of Appeal held that the decision of the Review Board could not be subject to judicial review by the chambers judge as neither the Review Board nor its successor, the Workers’

October 2011

Compensation Appeal Tribunal, was served with the petition. The Court disagreed with the conclusion of the chambers judge that the certificate of the medical review panel was unreasonable. The Court observed that there was no evidence to support the position that Mr. Bagri was denied the opportunity to be heard as he or his counsel knew or should have reasonably known that the panel would be considering Mr. Bagri’s psychological conditions. The Court also held that Mr. Bagri’s counsel himself knew that the medical review panel was not restricted to the dispute identified in the certificate.

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Pasch v. Blackmore, 2011 BCCA 420 Areas of Law: Constructive trust; Negligence of Counsel Under Appeal: Justice McEwan

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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he appellants were Harvey Wolfson and Ganapathi Ashcroft and Company. The respondent was Julie Marjorie Ladner. Ms. Ladner and her now deceased former husband, Hugh Ladner, executed a separation agreement in which he undertook to pay her monthly spousal support and maintain life insurance in an amount sufficient to cover his support obligations. Upon Mr. Ladner’s death, it was discovered that he failed to provide for the stipulated life insurance. His estate was also insolvent. Ms. Ladner successfully sued his estate for damages for breach of the life insurance clause in the separation agreement. After she was awarded $417,621in damages, Ms. Ladner attempted to pursue a claim in trust for the insurance proceeds payable to the estate, but was unsuccessful at trial and

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on appeal. Subsequently, Ms. Ladner sued her solicitor, asserting that he was negligent in failing to pursue a trust claim before or concurrently with the damage claim. The trial judge found that the solicitor was negligent in failing to advance Ms. Ladner’s trust claim in a timely fashion. On appeal, the appellants argued that the trial judge erred in finding that the failure to advance the trust claim caused a loss to Ms. Ladner, and that such failure was a breach of the standard of care owed by the appellants. The appellants argued in the alternative that the trial judge erred in calculating the damages. Ms. Ladner filed a cross-appeal with respect to the computation of damages.

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Pasch v. Blackmore, (cont.) APPELLATE DECISION

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he appeal was allowed and the action together with the cross-appeal was dismissed. The Court ruled that even if the constructive trust claim was pursued, it would not have succeeded. Thus, any negligence attributable to the solicitor would not have resulted in any loss to Ms. Ladner. The

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Court held that contrary to the findings of the trial judge, a good conscience constructive trust could not have arisen because the relationship between the spouses after their separation did not involve continuing fiduciary and equitable obligations. Also, there was no proprietary connection between the insurance proceeds payable to the estate and the insurance policy contemplated in the separation agreement. As such, the trust claim could not be imposed on the insurance proceeds payable to the estate.

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Nicholls v. Insurance Corporation of British Columbia, 2011 BCCA 422 Areas of Law: Insurance Law; Claims Against Unknown Parties Under Appeal: Justice Saunders

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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he appellants were The Cash Store Inc. (“Cash Store”) and Rentcash Inc. The respondents were Andrew Bodnar and Jose Bartolome. The appellants were sued in a class action for charging and collecting illegal fees relating to payday loans made to class members. In May 2009, the parties reached a Settlement Agreement which was approved by the Supreme Court. Cash Store was appointed Settlement Administrator, while Epiq Systems Inc. (“Epiq”) was the Claims Process Reviewer. The Approval Order affirmed the continuing role of the court in providing direction in any matter arising under the Agreement. The class counsel

later sought an order removing Cash Store as the Settlement Administrator based on complaints from class members that Cash Store was unable to carry out its administrative duties with competence and transparency. The chambers judge found sufficient evidence to support the complaints, noting that Cash Store had miscalculated class members’ claims, and that it had not been straightforward in its administration of the claims process. She also found that the Class Proceedings Act and the terms of the Settlement Agreement gave her inherent and supervisory jurisdiction to remove and replace Cash Store as Settlement Administrator. In her order, however, the chambers judge did not expressly remove Cash Store as Settlement Administrator and appoint Epiq in its place, but it was implicit in the order that Epiq had assumed the role. On appeal, the appellants argued that by issuing the order, the chambers judge exceeded her supervisory jurisdiction over the administration of the settlement, and that the order was contrary to the intention of the parties to the Agreement and the law on variation of consent orders.

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Nicholls v. Insurance Corporation of British Columbia, (cont.) APPELLATE DECISION

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he appeal was dismissed. The Court of Appeal explained that while the Settlement Agreement was merged in the Approval Order, such merger did not limit the supervisory jurisdiction of the chambers judge under the Class Proceedings Act and the terms of the Agreement. Contrary to the appellants’ claim that the impugned order varied the terms of the

Agreement, the Court found that the chambers judge merely exercised her authority to change the administrative aspects of the settlement. The order did not result in any substantive amendments to the terms of the Agreement, as in fact the duties of the Administrator were administrative in nature and the substance of the settlement would be the same regardless of who was performing those duties. The Court also noted that the chambers judge could not be said to have varied the terms of the Agreement when she ordered Cash Store’s removal and replacement as she merely imposed appropriate terms on Cash Store to enforce its obligation to appoint a new Settlement Administrator in light of its failure in that role. The Court Appeal varied the order of the chambers judge by including a term expressly removing Cash Store as Settlement Administrator and appointing Epiq in its place.

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Who is OnPoint?

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nPoint is a law firm of on-call research lawyers, all of whom have completed clerkships and litigated with downtown law firms. “OnPoint has always performed in a timely, effective and professional manner and has done excellent work at a reasonable price. We do not hesitate to use their services.” Larry Kahn, QC and Marvin Lithwick, Kahn Zack Ehrlich

For over 12 years, our firm has completed research and writing projects for lawyers in the private and public sectors, from case summaries to complex memoranda and facta. Many of our clients consider using our services as equivalent to relying upon work completed by in-house associates, and add a measure of profit accordingly when billing their own clients. T.604.879.4280 F.604.648.8930 info@onpointlaw.com www.onpointlaw.com

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BC Take Five November 2011