BarTalk | April/May 1994

PREsiDFNr's MEsSAGE

The challenge of public affairs and government relations NEWSLETTER OF THE CANADIAN BAR ASSOCIATION B.C. BRANCH '

APR/MAY 1994

VOLUME 6 NUMBER3

"Everyone has an influence 路 t1;;he wt'll on pu bl'tc affiatrs take the trouble to exert it."Calvin Coolidge.

Lawyers are persuasive advocates for their clients' causes.

Ironically, they often appear not to be even good apologists when attempting to persuade politicians on issues impacting their own profession.

Historically, the legal profession has been perceived as having strong ties with the political decision making process in Canada through lawyers' participation in political parties, through their public service and by their election to public office.

Perhaps it has been an uncon-

scious over reliance on this tradition that has had an adverse impact on our professions' ability to influence our political leaders on such important issues as Legal Aid and the ill conceived Social Service Tax on legal fees.

One senses that the level of active participation by lawyers in political parties is not what it once was. For several years, the numbers of lawyers seeking elected office at the provincial level was relatively insignificant. This trend may have reversed itself in the recent provincial election (and subsequent

by-election) when six lawyers were elected by the NDP and three by the Liberals. Prior to that election, the dominant role in public affairs once played by lawyers had been supplanted by other vocations such as the retail auto industry and former members of the media. This was particularly true in the later days of Social Credit rule. .

The perceived advantages and satisfaction to be gained by a lawyer participating in Provincial public life are not what they were 50 years ago. Greater Please turn to page 2

SectionTalk ......................... 3 Legislative Update .............. 5 Reports Available ............... 7 Registry Q &A .................... 8 Moot Winners .................... 10 Sullivan Cup winners ....... 11 Bouchard speaks ............. 12 Dial-A-Law thanks ............ 13 Vacation tips ..................... 14 AGM set for Sept. ............. 14

Law Day '94 focused on the theme of "Families and the Law." A feature at the Open House af Vancouver Provincial Court at BOO Hornby Street was a public forum discussing the topic: Family Violence: A Public or Private Matter?

Forum participants included: (back row; left to right) Kevin Evans, CBC news andwr; Brenda Toll, Director of Regional Classification at the Surrey Pre-Trial Services Centre; Dr. Anton Gruenfeld, physician at the Vancouver General Hospital Emergency Ward; Shashi Assinand, Executive Director, Vancouver and Lower Mmnland Cultural Family Services Society; Superintendent Jlrian McGuiness, Vancouver Police Department; Patricia Graham, Senior Editor, Vancouver Sun; Ian Guthrie, Forum Coordinator, Continuing Legal Education Society. (Seated, left to right) Judith Milliken, Senior Crown Counsel; Judge Jane Godfrey, Associate OJief]udge of B.C.; Dr. Stephen Hart, SFU Clinical Forensic Psychologist; Mary Clifford, Pnnce George Native Friendship Centre.

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The challenge of public affairs and government relations (conunued from page 1) economic pressures and the increased time constraints imposed by late 20th Century legal practice may also be impacting on the number of lawyers actively participating in political parties, both at the grass roots level and in leadership roles. This is probably especially true among younger members of the Bar. Arguably, the issues of importance to lawyers who choose to be actively involved in the political process may not be the same issues of concern to the practicing Bar as a whole. Our recent experience of having our professional fees subjected to a Social Service Tax by a government caucus comprised of six lawyers suggests this to be the case.

The B.C. Branch of the Canadian Bar Association and The Law Society of British Columbia recognized the need four or five years ago to establish a better means of dealing with government at the political level and not rely solely on the tradition of individual participation by some members of the Bar in the political process. Prior to this recognition, the organized Bar viewed its government relations program with the governing political party of the day more as a function of communicating with government rather than trying to effectively lobby and properly influence the direction of government policy, in an organized and coordinated fashion. The organizations representing the legal profession lagged.behind some other professional organizations such as the B.C Medical Association and the Institute of Chartered Accountants in recognizing the need to establish these coordinated programs.

In the past, little was done by our professional organizations to contact provincial ministers other than the Attorney General. No formal means were in

place to contact Government back benchers much less members of the Opposition.

Within the last four years, greater attention has been paid by the organized Bar to the importance of this contact and in developing more effective government relations programs.

The CBA and The Law Society have cooperated in this endeavour and recently co-hosted their third annual meeting with the Government Caucus and their second annual meeting with the caucus of the Official Opposition. These occasions have provided an opportunity for Bar representatives to meet Ministers and MLA's, and to discuss the respective roles of the CBA and The Law Society as well as current issues of concern to the Bar as a whole.

The organized Bar has continued to maintain its close contact with the Attorney General and that Ministry's senior advisors.

Historically, several meetings occur throughout the year between the Branch President and the Attorney General and between the Master Treasurer of the Law Society and the Attorney General. Joint meetings are also arranged.

The Deputy Attorney General regularly attends Branch Provincial Council Meetings and Law Society Benchers' Meetings. A committee known as the Attorney General's Liaison Committee, comprising senior representatives of the CBA, the Law Society, and the Attorney General's Ministry meets periodically throughout the year to discuss practical means of improving the operations of the Court system. The B.C. Branch has also developed a strong working relationship with government through other committees such as the Joint Court Services Committee. We are also consulted in the area of judicial appointments at both the Federal and Provincial levels.

]. Parker MacCarthy B.C. Branch President 1993/94

However, it has become apparent that there is a need to make contact with and establish a relationship with other Provincial Government Ministries. Legislation which has a significant impact on issues being dealt with by lawyers and having an impact on the practice of Law can originate from Ministries other than the Attorney General. For example, the reform proposals for private adoptions came from the Ministry of Social Services. The Social Services Tax on legal fees was hatched in the Ministry of Finance.

Since 1989, the B.C. Branch Legislative and Law Reform Committee, chaired initially by Bonita Thompson and subsequently Greg Steele, has established a high level of credibility for the legal profession among several Provin- . cial Government Ministries. Representatives from the CBA are often requested to provide input on legislation tabled in the legislature. Submissions are sought from our sections and their responses are coordinated by Ann McLean, the Branch Legislative and Law Reform Officer. On occasion, we are asked to review draft legislation on a confidential basis. Input at this stage can be very important in ensuring that practical concerns and the legal implications of the proposed legislation are identified by legal Please turn to page 11

property that "in the opinion of a body or person authorized to exer:cise a power under this Act has sufficient heritage value or heritage character to justify its conservation." "Heritage character'' is also broadly defined.

Bill 70 creates a number of types and classifications of property that is or may be heritage property. Each of these attracts different levels of protections and available powers.

Heritage Conservation Act to undergo extensive amendment Linda Parker summarized the proposed heritage conservation legislation for members of the Vancouver Real Property section. The Heritage Conservation Statutes Amendment Act, 1993, known as Bill 70, is a lengthy and complex Bill which has undergone several incarnations since its first draft in 1987. It has been the subject of extensive consultation with the public and interested parties.

Bill 70 was given first reading at the end of last year's legislative session Q"uly 6, 1993) and it is hoped that it will finally be adopted this year. As a result of consultation since its introduction, including comments by a joint committee of the Rea1 Property (Vancouver) and Municipal Sections, the Bill is undergoing further technical changes.

Under the amendments municipalities have considerable discretion in determining what is heritage property. "Heritage value" is defined as "historical, cultural, aesthetic, educational or scientific worth or usefulness of a property or an area" and heritage property'' is defined as

During her presentation Ms. Parker touched briefly on the methods of permanent and temporary protection of heritage property; amendments in procedure and in substance intended to increase fairness to owners; and incentives available to owners and the increased penalties and remedies available.

Permananent Protections Under Bill 70 municipalities will still have the power to designate property as heritage property but, if the effect is to reduce the market value of the property, the municipality must pay compensation. The Act provides a specific process for designation, including the requirement for a bylaw, prior notice to the public and to the owners and occupiers of property, and a public hearing. It also provides for an arbitration process to determine compensation.

The Act contemplates a number of alternatives to "designation": a) use of the community heritage register. This does not in itself ensure protection but is a trigger to other processes and protections. b) designation of a heritage conservation area in the Official Community Plan. c) scheduling of specific herit-

age properties in the Official Community Plan. d) heritage revitalization agreements.

The community heritage registry consists of a formal list of properties considered by the council to have heritage value.

The council must indicate why the property is considered to have heritage value. Placing property on the register gives council a variety of temporary protection powers, including ordering a heritage inspection, withholding development approvals, and withholding demolition approvals, until council decides whether to adopt more permanent protections, As a second alternative, the council may, in the Official Community Plan, designate an area as a heritage conservation area. Thereafter, a heritage alteration permit is required before the owner can subdivide land within the area, commence construction of a building or addition, or alter a building or feature that is protected.

Instead of designating an area in the Official Community Plan, council may, as part of the.same process, list in a specific schedule buildings, structures or features so that they have the same protected status as designated properties.

The final alternative for heritage protection is for the parties to enter into a heritage revitalization agreement. The local government must adopt the agreement by bylaw. This can be done where the property is designated or scheduled in the OCP or where in the opinion of council it has sufficient heritage value to justify its conservation.

These agreements are very much like the old land use contracts and can vary bylaws including.zoning, parking, subdi-

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SectionTalk (continued) vision servicing and development cost recovery. Such agreements can also vary the provisions of development permits and bylaws and permits relating to heritage conservation. The agreements can also vary use and density but only if the local government first holds a public hearing. It should be noted that a local government must not require an owner to enter into such an agreement as a condition of issuing any permit or other authorization that may be required to enable the heritage property to be used in accordance with the applicable bylaws.

To protect buildings of heritage value on an immediate or shortterm basis while decisions are being made and to assist in the assessment of the heritage value of buildings, local governments are given additional powers for temporary protection, including powers to temporarily withhold permits and approvals for specified periods of time.

The Act has built in several features to encourage fairness to owners in terms of process and in terms of financial and other incentives that the local government can offer the owner to encourage conservation of the property, such as land use flexibility. The amendments provide for: • public notice of heritage status by local heritage registries, Land Title Office filings. relating to various protections and designations and a central Provincial heritage registry which will be accessible on-line • public hearings prior to designation • notice to owners before and after certain action is taken • mandatory compensation for designation if the designation causes a reduction in market value

• a restriction that, except temporarily, conservation powers cannot be used to limit the use and density to which an owner would otherwise be entitiled • time limits on temporary protection • limits on heritage inspections and • Ombudsman review of Council's exercise of conservation powers.

Bill 70 also provides for greatly increased penalties for specified offences including personal liability of employees, officers and directors with fines of up to $1,000,000.00 for corporations and fines of up to $50,000.00 or two years in jail, or both, for individuals.

Ever wondered how the Law Reform Commission operates?

Tom Anderson, a Commissioner of the Law Reform Commision of B.C. (LRCBC), spoke to the Legal Research Section members on the function of the LRCBC and program develop-. ment.

The LRCBC was created in 1969 and has just published its 134th report. The LRCBC deals with legal policy only. Social policy issues are the purview of government. Commission lawyers review the law constantly looking for anomalies, inconsistencies or unjust results in the case law. They then determine whether it is feasible for the courts to resolve a particular issue or whether it is feasible for the courts to resolve a particular issue or whether it is a matter for legal reform. If a law reform issue is identified, Commission lawyers consider

whether there is a discrete answer or whether a full study is required. In the event that a complete reassessment necessary, the Legislature must be convinced of the benefits, as resources are limited. Finally, the LRCBC considers whether the legal profession and the courts support the need for change.

Commission lawyers constantly monitor developments in the law and maintain a database of topics warranting attention.

New cases in identified areas are entered into the database.

This database provides a vehicle to determine whether specific issues or problems have coalesced sufficiently to warrant further study. While approximately one third of the LRCBC's program originates from staff lawyers monitoring changes in the law, the other portion originates from the legal profession, judicial committees and the Canadian Bar Association sections.

LRCBC Reports provide a rich source of current and historical legal information. The LRCBC's latest annual report contains a disk that provides ari electronic index to the commission's work. In addition the LRCBC keeps a database of law reform commission reports from all commonwealth and some U.S. jurisdictions which is available free of charge.

Securities and Exchange Board proposed to restore confidence in VSE In a recent Securities Law Section meeting Jim Matkin, Chairman of the Vancouver Stock Exchange Please turn to page 10

You will see a reference in some cases to the number of the Bill when it was introduced in the House. This number may be different from the chapter number of the new Act which is quoted after the title of the Act and which is the proper citation for the Act. The Bill Number has been given to you to make it easier for you to note up the Bills you may have in your library.

Every effort is made to ensure the accuracy of the information provided to you in this article but the information should not be relied upon. Lawyers should refer to the specific legislative or regulatory provision.

Ann McLean

ACTS IN FORCE Miscellaneous Statutes Amendment Act (No. 2), 1993, S.B.C. 1993, c.55, amends the Financial Administration Ad, S.B.C. 1981, c.15, requiring authorized and actual staff utilization to be included in the estimates and requiring cabinet approval if actual staff utilization exceeds authorized staff utilization. . section 9 of the Actin force March 241994

Health Authorities Act, S.B.C. 1993, c.47, enables communities and regions to establish community health councils and regional health boards, which will be responsible for the delivery of health serviCes to local residents. in force April 7, 1994

Resort Municipality of Whistler Act, S.B.C. 1975, c.67, the provision that no zoning bylaw, land use contract bylaw or subdivision servicing by-law takes effect until approved by the minister is repealed. section 11.2(2) of the Act is repeakd April 7, 1994 Attorney General Statutes Amendment Act (No. 2), 1992, S.B.C. 1992, c.32, amends the Liquor Control and Licensing Ad, R.S.B.C. 1979, c.237, allowing for the appeal by a licensee of the imposition of a fine. section 17 of the Act in force April14, 1994

Liquor Control and Licensing Amendment Act, 1993, S.B.C. 1993, c.32, amends the Liquor Control and Licensing Ad, RS.B.C. 1979, c.237, limiting the minister's control over the general manager to matters of general policy, amending some of the provisions dealing with the issuance, suspension and cancellation of licenses, allowing the general manager or his delegate to suspend alicence and order a temporary closure of alicensed establishment where public safety is threatened or it is in the public interest to do so,

and precluding a licensee from allowing unlawful activities on the premises but deleting the provision which prohibited a licensee from permitting a person of notoriously bad character to remain on the premises. section 1- 6 and 9 of the Actin forceApril14, 1994

Miscellaneous Statutes Amendment Act, 1992, S.B.C. 1992, c.77, amends the Industrial Development Incentive Ad, S.B.C. 1985, c.43, increasing the cap on Industrial Incentive Fund loans and investments from $225 million to $235 million. section 1 of the Act in force April28, 1994

Miscellaneous Statutes Amendment Act, 1993, S.B.C. 1993, c.28, amends the Land Title Act, RS.B.C. 1979, c. 219, allowing the registrar to duplicate an original marriage or death certificate or trust instrument and return the original in certain cases, requiring that only original documents be tendered and providing that damage suffered by an owner of an air space parcel is compensable out of the assurance fund. sections 9 • 12 of the Act in force April28, 1994

Public Service Act, S.B.C. 1985, c.15, provisions dealing with appointments on merit are repealed.

(This matter is dealt with in s.8 of the Public Service Act, S.B.C. 1993, c.66) section 5 of theActrepeakd May~ 1994 Public Service Act, S.B.C. 1993, c.66, sets out provisions governing appointments to the public service, provides for inquiries, establishes the Public Service Appeal Board and provides for appeals. definition of "appeal board" in section 1(1) and sections 8, 10, 11, 16, 17, 18(1) • (3), 4(a) and (b) and (5) • (7), 19 and 20 in force May~1994

Please turn to page 6 for Introductory Bills to Note

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Legislative Update (continued) INTRODUCTORY BILLS TO NOTE The following bills were introduced in the spring 1994 session, but as of May 2 had not received royal assent They are reported in order of bill number.

Manufactured Home Amendment Act, 1994, (Bill 3), amends the Manufactured Home Ad, R.S.B.C. 1979, c.281, clarifying provisions relating to the operation of the registry, expanding provisions dealing with government liability in the operation of the registry, allowing for searches by name of owner and serial number of manufactured home as well as by registration number, permitting conversion of existing records to computerized form and electronic storage arid processing of documents and providing for changes to the register and lost or destroyed records, and makes consequential amendments to the Miscellaneous Registrations Act, 1992. The act will be brought into force by regulation.

Family Relations Amendment Act, 1994, (Bill 5), amends the Family Relations Act, R.S.B.C. 1979, c.121, (a) adding a new Part 3.1, which provides rules for division of pension entitlement in case of marriage breakdown, and (b) as to agreements for custody, access or maintenance, removing the requirement that the parties to such an agreement must consent before it may be filed and enforced as if it were a court order,

and making consequential amendments to the

S.B.C. 1992, c.4, inter alia replacing the terms "amount taxable" and "taxable paid up capital" with the term "adjusted paid up capital", expanding the definition of "business", increasing the thresholds beyond which tax or a higher rate of tax is payable, exempting family farm corporations and cooperative corporations from taxation under the Act, making changes to the calculation of deductions, and expanding the tax avoidance provisions. The act will be in force on royal assent effective various dates.

Property Transfer Tax Amendment Act, 1994, (Bill 17), amends the Property Transfer Tax Act, S.B.C.

1987, c.15, adding to the definition of "taxable transaction" a series of lease transactions that create terms that in the aggregate extend for more than 30 years and adding to the definition of "transferee" a person who under an option to lease, gets the right to enter into a lease agreement for a term that is not included within the tenn of another lease agreement, limiting the tax credit system set out in s.3.1 to those for which application is made before July 1, 1994, and creating an exemption from tax for first time home buyers who meet certain criteria. The act will be in force on royal assent effective various dates.

Heritage Conservation Statutes Amendment Act, 1994, (Bill21), amends various acts, increasing the powers of local governments to protect heritage resources, providing new procedural rights to property owners, increasing penalties for failure to protect heritage resources and providing for agreements between the province and first nations for the protection of aboriginal heritage property.

The act will be brought into force by regulation.

Pension Benefits Standards Ad. The act will be

brought into force by regulation.

Insurance Amendment Act, 1994, (Bill 6), amends the Insurance Ad, R.S.B.C. 1979, c.200, extending the types of contracts of insurance to which the appraisal provisions apply to include many perils in addition to fire and to include loss of rents or profits or loss from business interruption resulting from such perils, for losses occurring after s.1 comes into force. The bill also extends the right of action of a judgment creditor against a judgment debtor's insurer to all cases where the judgment was in respect of a liability against which the debtor is insured. The bill makes other minor amendments, including removing the requirement that policies be signed or countersigned by the agent in order for the agent to receive a commission. The act will be brought into force by regulation.

Corporation Capital Tax Amendment Act, 1994, (Bill15), amends the Corporation Capital Tax Ad,

REGULATIONS TO NOTE Waste Management Act, B.C. Reg. 145/93, the Open Burning Smoke Control Regulation is amended, expanding the definition of "parcel of land" and adding as Schedule B the "Open Burning Smoke Control Code of Practice", which describes environmentally sound practices for open burning of debris that will reduce the health impact of smoke emissions.

B.C Reg. 56/94 effective March 1,1994

GIUlranteed Available Income for Need Act, B.C. Reg. 479/76, the Guaranteed Available Income for Need Regulations is amended (a) exempting government payments made to AIDS patients and dependents and sales tax rebates in determining income and assets, (b) limiting the exemption for single parents

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Legislative Update (continued) from the requirement to seek employment to those single parents who have dependent children under 12 or handicapped children under 19, and (c) allowing the director to take an assignment of a security deposit paid to enable a recipient to obtain rental accommodation.

Company Act, R.S.B.C. 1979, c.59, Form 18 of the Second Schedule, the Annual Report Form, is amended removing the portion of the form requiring provision of information on the annual general meeting.

B.C Reg. 60/94 effective May .2,. 1994

B.C Reg. 70/94 effective March 10,1994; B.C Reg. 76/94 effective March 18, 199"4; B.C Reg. 90/94 effective April L 1994

AG to consult on class action legislation The Attorney General has announced that the government intends to consult on the development of class action legislation for introduction in the 1995legislative session.

A consultation document will be distributed by the end of May. Copies can be obtained by telephoning Ruth

Rogers of the Ministry of Attorney General Policy Division at 387-4574. The government has particularly requested input from the Bar. The deadline for comments will be July 31, 1994. C

Public Trustee announces new appointments Myrna Hall, Public Trustee and Offidal Administrator for the Province of B.C., announces the

REPORTS AVAILABLE The Legislation and Law Reform Committee has received a copy of the following reports from the B.C. government. Information may be obtained from the source noted or from Ann McLean, B.C. Branch Legislation and Law Reform Officer in Victoria (598-2860).

Report

Source

Contaminated Sites Draft Regulation Part 2

B.C. Environment (Sheila White - 387-4441)

Condominium Act Discussion Draft (deadline for comments -June 30, 1994)

Ministry of Finance and Corporate Relations (Policy and Legislation Branch387-1269)

Forest Renewal Plan

Ministry of Forests (1-800866-7717; Vancouver- 7750583)

The Building Regulatory System in B.C.- Options for Renewal (deadline for comments on discussion paper -May 31, 1994)

Ministry of Municipal Affairs (387-4010)

B.C. Environmental Protection Act - draft act and I or newsletter

Ministry of Environment (Yvonne - 356-6664)

Consultation paper on class action legislation (to be released by the end of May- deadline for comments is July 31)

Ministry of Attorney General, Policy Division (Ruth Rogers- 387-4574)

appointment of Alaura Ross as Director of Estate Administration and the appointment of two new Deputy Official Administrators: Okanagan/Kootenay Region: Mr. A.J. Harris #210-678 Bernard Ave. Kelowna, B.C. V1Y 6P3 Tel: 763-6700 FAX: 763-4457 Lower Mainland Region: Mr. John Wood #204-6446 Nelson Ave. Burnaby, B.C. V5H 3J5 Tel: 775-1811 FAX: 775-1813 C

Court fee changes announced TheMinistryoftheAttorneyGen- . eral, Court Services Branch, has announced that amendments to Schedules 1 and 2 of the Supreme Court Rules and Schedule A of the Small Claims Rules, will result in court fee changes. The fee changes are effective June 1, 1994.

Please see CourtRegistrystafffor more info, or call Sandra Sajko at 356-1517 (Victoria). C

Alumni meet on August 22 in Toronto During the CBA Annual Meeting in August, the UBC Law Alumni Association will host a reception for UBC Law Alumni at 5:30p.m. onAugust22,1994atBlake, Cassels & Graydon, 23rd Floor, Commerce Court West, Bay Street, Toronto. For further information, call Blair Lockhart at 6313382. c

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by Joanne Power, Manager, Regisb'ar Programs

Your Registry Questions Answered lAnd Title Act Section 213

Q: Can a lis pendens be issued as security in an action for damages only?

A: No. The registry must exercise caution to ensure that Section 213 of the lAnd Title Act路 is strictly adhered to. "(1) A person who has commenced or is a party to a proceeding, and who is (a) claiming an estate or interest in land; or (b) giyen by another enactment a right of action in respect of land,

may register a certificate of lis pendens against the land in the same manner as a charge is registered, and the registrar of the court in which the proceeding is commenced shall attach to his certificate a copy of the originating process, or, in the case of a lis pendens under the Court Order Enforcement Act, Part 3, a copy of the notice of motion or other document by which the claim is made.

(2) The land affected by the certificate of lis pendens shall be described in a manner satisfactory to the registrar.

(3) On registration of a certificate of lis pendens, the registrar shall forthwith mail a copy to the owner against whose title the certificate has been registered.

(4) Where, subsequent to the registration of a certificate of lis pendens, a change a parties occurs, the registrar, (a) on receipt of a certificate of a lis pendens showing the new party; and (b) on compliance with this Act,

shall register the certificate of change in the same manner as a modification of a charge.

(5) Notwithstanding section (1), where a person entitled to enforce a restrictive covenant or building scheme has commenced路and action it, he may register under this section a lis pendens in the prescribed form against land 路in respect of which a breach is alleged to have occurred.

(6) A party to a proceeding for an order for the dissolution of marriage or judicial separation, or for a declaration that a marriage is null and void, or for a declaratory judgment under Part 3 of the Family Relations Act that spouses have not reasonable prospect of reconciliations with each other, may register under this section a certificate of lis pendens in the prescribed form in respect of any estate or interest in land the title to which could change as an outcome of the action.

(7) Notwithstanding subsection (1), a person who has commenced an action under the Wills Variation Act may register a certificate of lis pendens in the prescribed form against the land affected.

(8) A judgment creditor who (a) has made application under section 9 of the Fraudulent Preference Act, and (b) in the application, claims he is entitled to register the judgment against the land in respect of which the application was made, or against the judgment debtor's another person's interest in the land,

may register a certificate of lis pendens in the prescribed form against the land."

RJde15(1)

Q: Can a bill of costs be assessed when the party awarded costs dies before the assessment is completed?

A: Yes. Rule 15(1): "Where a party dies or becomes bankrupt, or a corporate party is wound up or otherwise ceases to exist, but the claim survives, the proceeding shall not abate by reason of the death or bankruptcy or the corporate party having been wound up or ceasing to exist."

RJde52(13)

Q: Can one party adjourn prior to the hearing of a chambers application without the consent of the other party, who has been served an application?

A: No. Rule 52 allows only the court or registrar to adjourn chambers applications in this situation.

Counsel may adjourn by consent, however, or appear at the time and place appointed to apply for the adjournment.

Su~ Court RJJu, Appendix C Section 15(1)(b)

Q: If an asset is disclosed at the time of application for Probate or Administration with the value of the asset listed as "'unknown at the time" or "'to be determined", when the value of the asset is disclosed after the issuance of the grant, is the fee for that assessment assessed at the rate of fees at the time of the asset being disclosed or at the time of the value being disclosed?

A: The working in Item 12 of Appendix C, Schedule 1 under "Fees payable to the Crown" in the Supreme Court Rules, indicates that ... "The fee payable under this item or item 5 shall be calculated on the values deposed to by or on behalf of a person representative in the ..." Also, the rate that is quoted in item 12, is payable ... "whether disclosed to the court before or after the grant is issued ..."

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Your Registry Questions Answered Therefore, when calculating fee payable on an asset, the rate used is the rate in force at the time the value is disclosed. This would apply where an additional asset is disclosed after the issuance of a grant.

Checking Supreme Court Chambers Orders

At the request of Chief Justice Esson and the Practice Committee of the Supreme Court Judiciary, I wish to advise registry staff of the following advisory note.

Chambers staff checking orders for entry are hereby advised the standard form precedent contained in the 1991 Continuing Legal Education Supreme Court Chambers Orders where applicable are approved for use as to the form and the general content of orders. [The index to the publication sets out the 路 orders it contains.]

Unless a judge, master or registrar has specified terms other than those set out in the Supreme Court Chambers Orders, staff may reject orders which vary in substance from the precedents and counsel may be requested to submit a form of order which is more substantially complies in form and general content as to terms. If counsel is of the opinion the form or general content of the precedent does riot meet the particular need of the order made, they may file a letter with the order explaining why that isso. Theregistrarormastermaythenconsider whether to enter the order in light of counsel's submission.

Rule 608(15)

Q: Can a party file an amended Petition for Divorce in which paragraph 21 concerning custody and access arrangements is deleted?

A: When parties or their counsel wish to file any pleadings or amended pleadings it is not for the Registry to consider the legal ramifications. Were the registrar to comment she would be acting in a partisan role; this is not the function of the Registry or the Registrar. 路 Court Order Enforcement Act Section 6 Rule 44(16)

Q: How can we best assist parties who are applying to set aside a Garnishing Order under section 6 of the Court Order Enforcement Act when they reside outside the judicial district where the proceeding was commenced or is pending?

A; Because section 6 allows the application to set aside the Garnishing order to be made on an ex parte basis the onus for satisfying the requiiements of Rule 44(16) are slightly reduced. For example, if the file is in Vancouver and the Debtor/Denfendant lives in Dawson Creek. he or she can apply to the registrar at Dawson Creek under Rule 44(16) to have the application under the Court Order Enforcement

Act heard in Dawson Creek. Under Rule 44(16) any registrar,upon being satisfied of the urgency or convenience of the parties, may authorize an application to be heard at a place outside of the judicial district in which the proceeding was commenced.

The file itself need not be transferred (rule 44(19)) but once the hearing has taken place, any material filed for the hearing together with any order made should be returned to the original registry for inclusion in the court file.

As a matter of courtesy, when the application to release the garnishing order is set down, the creditor should be notified and permitted to attend by telephone, or in person, or by agent, if it won't unduly delay the hearing.

"Rule 44(16) Where any registrar is satisfied that, due to urgency or the convenience of the parties, an application should be heard at a place outside of the judicial district in which the proceeding was commenced, the registrar may, ex parte, grant leave for the applicantto do either or both the following: a) file the notice of motion in some other judicial district; b) name as the place of hearing a place in that other judicial district; and where the registrar grants leave, he or she shall endorse the notice of motion accordingly."

"Rule 44(19) Where the transfer is not practical, the registry at the place where the hearing takes place, after the hearing, shall forward all material filed in that registry and any order made to the original registry."

"Rule 59(3) In case of urgency or convenience, the court, a master or a registrar may hear an application or matter and may make an order or decision by telephone."

Rule41(8)

Q: Can an articling student endorse an order if he/ she appeared in chambers?

A:. No. Only parties, solicitors or counsel can endorse orders. Also see the Practice direction of Chief Justice Esson dated October 17, 1990, particularly paragraph 3: "Orders requiring approval as to form or to which a party is consenting, must be signed by the party or by or on behalf of counsel for that party. Approval in the name of a firm of solicitors is not acceptable.

If you hRve any interesting or unusURl questions, please Write directly to Joanne Power, Manager, Registrar Programs, Law Courts, 850 Burdett Ave., Victoria V6W 1B5

•

market manipulation

• ineffective regulation of promoters • impracticality of pursuing civil remedies •

inadequacy of due diligence

• ineffectiveprosecutionofsecurities offences.

UBC Team wins moot for second consecutive year. (From left to right:) Hans Knapp, Scott Dawson, Pavla Polcarova, Barry Slutsky. (Seated:) Catherine Gibson, Ashley Taylor.

UBC law students defend moot title UBC law students successfully defended their 1993 title at the recent Canadian Corporate and Securities Law Moot <;ompetition.

UBC was represented by Hans Knapp, Scott Dawson, Pavia Polcarova, Ashley Taylor, researcher Catherine Gibson and advisor Professor Barry V. Slutsky. This unique - and particularly demanding - competition features each student arguing, on successive days, both sides of the issue as counsel for the appellants and the respondents. The UBC team defeated McGill to win the team championship. Hans Knapp was also chosen third best oralist in the competition. The five-mem-

ber panel judging the final included: Mr. Justice Cory, Supreme Court of Canada; Mr. Justice Laskin, Ontario Court of Appeal; Mr. Justice Farley, Ontario Divisional Court; and current and former Vice-Chairpersons of the Ontario Securities Commission.

TheUBC team was sponsored by Smith, Lyons, Torrance, Stevenson & Mayer. As well, the law firms of Lundell Lawson & Mcintosh, Blake Cassels & Graydon, and Devlin Jensen, and Mr. Justice Hall, Mr. Justice Brenner, and Madam Justice Newbury of the B.C. Supreme Court, ran practices for and helped train the students. C

SectionTalk (cont'd from page 4) and Securities Regulation Commision (the" Commission"), gave recommendation for change to the current securities regulation system in B.C. following the release of the Commissions report.

•

investor protection

• encouragement of worthwhile ventures • to create and maintain public confidence

The Commission was appointed to identify the problems with the VSE and securities regulation in B.C. in general and to recommend a solution. An advisory committee of eleven. people including lawyers, brokers and investors was established and public hearings were held in Victoria, Vancouver and Kelowna.

According to Mr. Matkin, B.C.'s Securities regulation system falls short in reaching all of these goals.

He identified the following reasons why:

Mr.Matkinsummarized the goals of securities regulation as follows:

• law quality of listed. companies

• to provide a cost competitive regulatory system • to achieve optimal allocation of capital

Public perception of the VSE is that it is an "insider's exchange."

In Mr. Matkin's view reputations are comprised of both fact and perception. Perhaps using a fresh approach such as creating new procedures under a new "Securities and Exchange Board" ("SEB") will create a healthy public perception.

The Commission proposes taking all regulatory power away from the VSE and placing it in the hands of the SEB, except with respect to regulating its members. It is proposed thatthis power be given to the Investment Dealers Association. The SEB would not perform an adjudicative role. That role would be performed by administrative law judges whose decision could then be appealed to the SEB and then to the Court of Appeal. The SEB must be independent and fund itself.

The Commission has nominated a committee to select an independent SEB. It is hoped that this SEB will be involved in drafting the legislation governing its existence.

It is anticipated that it will take at

least one year until the SEB is operating and that it will operate simultaneously with the with the current B.C. Securities Commission until the SEB is in full operation.

Other recommendations made by the Commission include regulation of promoters, greater emphasis on prevention instead of prosecution of rule violations and greater regulation of reverse takeovers. C

11

President's Message (continued from page 2)

practitioners and can be considered at the policy stage.

However, in order to have the opportunity to provide meaningful input at this level, we must cultivate our contacts at both the senior bureaucratic and, probably more importantly, at the highest political level. Our continuing desire to be involved in this process must not be interpreted as self-serving by political leaders or their.advisors. It must be evident to them that our involvement seeks to fulfill our professional obligations and goals to review legislation, initiate law reform measures and to advance and improve the administration of justice.

The National CBA has been both active and successful in this process at the Federal level. Heavy reliance is now placed on CBA input by way of submissions made directly to Federal Ministries and by way of submissions to Parliamentary Committees.

Proper self interest of our profession cannot be ignored in our relationship with government. If we do, we do so at our own peril.

The challenge is to makes ure that our profession and its organizations are seen as credible sources of advice on public policy matters whether or not the subject matter has a direct impact on us.

2. A broad level of participation throughout the Province by our membership as volunteers.

3. Experienced staff at the CBA and The Law Society to help coordinate and assist the efforts of these volunteers.

4. Receipt of appropriate outside expertise in the area of government relations.

Some of these steps have already been implemented, much remains to be done.

What can we do individually?

Direct individual contact with elected representatives, by lawyers, as voters and taxpayers, is desirable and important. This direct contact as a means of properly and effectively influencing our politicians is often under es-

timated. I urge you to take the time to write or contact your MLA's on issues you believe impact on you personally and on your profession and which also impact on your clients. Where appropriate, keep the B.C. Branch informed of these concerns which you have raised with our political leaders. This will be of great assistance to our Government Relations Committee. It will help us to identify important issues, and where possible, add ourinputand also 路to monitor the political response.

Calvin Coolidge told us it can be done - are we willing to take the trouble?

J. Parker MacCarthy B.C. Branch President 1993/94

Tax challenge petition dismissed The second petition challenging the imposition of the provincial sales tax on legal services was dismissed by Madam Justice Mary Humphries.

President Parker MacCarthy.

"Unfortunately, our unsuccessful challenge now opens the door for similar social services tax on other professional services in B.C."

"Although the B.C. Branch was unsuccessful in challenging the constitutionality of the tax, we still maintain that the tax is a regressive, selective tax and an unfair burden to consumers of legal services," said B.C. Branch

The B.C. Branch was successful in recovering costs in the first petition. These funds were set aside while awaiting the outcome ofthe second petition whose costs have not yet been determined. C

What can we do collectively to achieve this goal? The professional organizations representing lawyers must continue to find effective means of communicating with politicians on both sides of the House, educating them as to the issues of importance to our clients and our profession and properly influence them to follow a desired course of action. To achieve these ends it will require: 1. A heightened collective awareness within our profession of the importance of such a program

lAW Day '94 Barry Sullivan Law Cup Public Speaking Competition Finals were held the Vancouver Provincial Court Open House. Jennifer O'Connor (second from right) of Columneetza Senior Secondary in Williams Lake was chosen best speaker.

First Runner-Up was Amy Beeman (right) Kelly Road Secondary, Prince George; Second Runner-Up was Nadia Chian (second from left) Sir Winston Churchill Secondary School, Vancouver; and Third Runner-Up was Kari Werner (left) Pitt Meadows Secondary, Maple Ridge. at

12

CBA gender and race initiatives endorsed by Minister of Justice and Judicial Council The CBA continues to receive positive feedback on the debate that took place in Jasper on many of the recommendations of the Wilson Report.

Recently, National CBA President Cecilia Johnstone, Q.C., met with the Alan Rock, the Minister of Justice. Rock indicated his strong commitment to eradicating gender bias within the legal profession and the justice system and offered his support to the CBA in achieving this goal. The CBA will work closely with the Minister's office to develop joint initiatives to ensure that the profession and governments make progress on these priority issues.

The Association was also pleased to receive a letter from the Honourable Chief Justice 路 Lamer, on behalf of the Jud.icial Council. The letter advised the CBA that at the Canadian Judicial Council's mid-year meeting on March 25, 1994, it had unanimously adopted a resolution of the Special Committee on Equality in the Courts, a Committee established by Council.

The resolution provides "that the Council approve the concept of comprehensive, indepth, credible education programs on social context issues which includes gender and race (aboriginal peoples, blacks, and other visible minorities) and therefore accepts recommendation 10.6 of the CBA Task Force Report on Gender Equality as amended and adopted by the CBA at its mid-winter meeting in February, 1994 in Jasper, Alberta."

Chief Justice Lamer went on in his letter to indicate that the Special Committee and the Council would continue to consider the other resolutions relating to the Council that were passed in Jasper and that are scheduled to be debated in Toronto in August.

Towards the National CBA Annual Meeting in August The CBA Standing Committee on Gender Issues continues to solicit feedback on the recommendations that will be debated in Toronto this summer.

Any comments received will be carefully examined by the Standing Committee and will be considered when the Committee reviews the remaining recommendations prior to the Annual Meeting. If you or your group or organization is interested in receiving a copy of the remaining recommendations or would like copies of any of the submissions that have already

been reviewed, please contact Robin Geller, Director of the Gender Equality Program, at (613) 237-2925.

Reminder: Don't forget that the Model Policies are now available. Contact the CBA Publications Department at (613) 237-2925. The Model Policies are $25 (member's cost) and deal with Sexual Harassment, Workplace Equity, Alternative Work Arrangements, and Parental Leave.

They are an invaluable asset when designing policies for any firm.C Reprinkd from Touchstonese published bJi theCBA Legal and GovemmentAffairs Directorute, Gender Equality Progrmn.

"An end to fruitless confrontation" Bouchard addresses B.C. Branch members At the invitation of the B.C. Branch Consitutional Law Section, Lucien Bouchard, Leader of the Official Opposition, spoke to 120 B.C. Branch members on May 2, 1994.

In a whirlwind visit to Vancouver that received national media attention, Bouchard brought his message of Quebec sovereignty to British Columbians and said, "we believe that sovereignty provides the only solution for Quebec's continuing development, and the only alternative to the fruitless and paralyzing squabbles of a federal system which has proved incapable of adapting to meet out needs."

Eric Rice, Q.C., Vice~President of the B.C. Branch, thanked Mr. Bouchard for his presentation.

Rice concluded by stating, "It is important that we listen to you.

We must not shut out your good points ... We must be ready to change, and to change our minds.

And so should you, as you have before ... And we hope that as you leave you will understand when many of us say that we

want Canada to live on, and Canada would not be Canada without Quebec."

A copy of Mr. Bouchard's speech as well as the questions posed by B.C. Branch members and Bouchard 's responses, is available from the B.C. Branch office for a nominal charge of $7 +GST. Please send your cheque payable to the CBA (B.C. Branch) to order 路 your copy of this material. C

Attend seminar and get technology working for you Following on the success oflas t year's event, Computers and the Law Institute '94 will feature new sessions and workshops with an emphasis on better practice management through the application of technology. Vendor sponsored workshops will include exciting new product demonstrations. Co-sponsored by the Continuing Legal Education Society of B.C. and UBC Continuing Studies, the seminar will be held on June 16 and 17 at the Robson Square Conference Centre. For information, call CLEat 669-3544 or 1-800-663-0437.0

13

Dial-A-Law scripts kept up-to-date thanks to assistance of members With 140 Dial-A-Law tapes covering a wide variety of topics such as common-law relationships, marriage contracts, small claims court, and door-to-door sales, our Dial-A-Law script editor Cheryl Stephens is kept busy incorporating legislative changes as well as other procedural changes within the scripts.

It has been through the invalua-

ble volunteer assistance provided by our members that substantive legal review of the tapes is maintained.

The B.C. Branch thanks the following members and Section chairpersons for their invaluable volunteer setvice in reviewing current scripts or providing advice on new scripts: •

• • • • • • • • • • • • • • •

NeilL. Marshall Lawson, Lundell, Lawson & Mcintosh Gregmy M. Nielsen Carfra & Lawton Lany Koo Harper Grey & Easton Paul D. Le Dressay Le Dressay, P.Daniel Allan Parker Continuing Legal Education David H. Silverman Conroy & Company Murray J. Lott Lott, Murray Edgar. A. Frechette Russell & DuMoulin Jeny McHale Ministry of Attorney General Robin J Stewart McLachlan, Brown & Anderson John A Cherrington Nundal, Cherrington Catherine Greenan Greenall & Company Fiona Hunter Anniko & Hunter Richard J Pushor Pushor, Mitchell, Davies, Montgomery & Co .

Jane Anne G. Purdie Hambrook & Company Christopher E. Hinkson Harper, Grey & Easton

• • • • • • • • • • • • •

Gerrit W. Clements Community & Family Health Theresa Arsenault Montgomery & Company Candace J. Pinter Ladner Downs Charmaine Spencer Gerontology Research Centre SFU Katherine Welborn District Registrar Greg Delbigio Delbigio, Greg John White White, Richardson & Horricks Margaret Sasges Berge, Roberts & Company Maty Clare T. Baillie Law Society Richard M. Wenner Davies & Wenner Peter D. Feldberg Lawson, Lundell, Lawson & Mcintosh Sandra K Ballance Douglas, Symes & Brissenden Floyd Gradley Greiner, Bethell & Company

As well, special thank you is extended to the following who also reviewed scripts for content accuracy:

•

Gillian MacGregor B.C. Council of Human

•

• •

Rights Lois Hardy Ministry of Labour & Consumer Services Marilyn Lowden Residential Tenancy Branch Deanne Peitsch Office of Public Trustee

Dial-A-Law brochures for your law firm office Copies of the Dial-A-Law brochureareavailableatnocostupon request for display in your law firm office. Call Dominique Labreche at the B.C. Branch office (687-3404) to obtain copies of the brochure.

Dial-A-Law's 140 pre-recorded tapes are available 24 hours a day from touch tone phones.

Call687-4680 in the Lower Mainland or toll-free 1-800-LA WS (5297) from outside the Lower Mainland. Dial-A-Law is operated by the B.C. Branch of the CBA with funding pravided by the Law Foundation of B.C. C

Law Day Essay Contest winners announced The·Law Day Planning Committee is pleased to announce the following provincial Law Day essay contest winners: Ryan Cournoyer, J. Lloyd Crow Secondary School in Trial, First Place; Anna Maria Tosso, Richmond

Secondary School, Second Place; and Warren Hagg, Steveston Secondary School in Richmond, Third Place .

There were 27 essays submitted from Law 12 classes throughout the province. C

LawiJournee Day duDroit The Law Week '94 Planning Committee extends a sincere thank you to the thousands of volunteers throughout the province who participated in Law Day activities/

14

For a successful vacation practice prevention before you go The cap to a successful vacation - arriving to a house that looks exactly like you left it. Unfortunately, unoccupied homes attract burglars that often spoil such homecomings.

A dark house, a full mailbox, uncollected newspapers, and an unanswered telephone are red flags that announce your absence to burglars.

But you can take steps to protect your house before you go away.

Canada Life Casualty, the CBA's group home insurance company, suggests these security tips: • Lock all doors and windows.

Use a bar for sliding doors and windows to prevent them from being forced open.

• Consider installing an alarm system for your home.

• Ask neighbours to park their car in your driveway if it will be empty while you're away.

• Put away all your tools to prevent burglars from using them to break-in.

• If you have moved somewhere new, replace the locks.

• Never hide keys on door ledges, under door mats, or in mail boxes. These are the first places experienced thieves look.

• Remove ladders and pails from your yard so that burglars can't use them to break into your home.

• Keep shrubs well trimmed and away from doorways so they don't shelter thieves.

• Arrange for a trusted neighbour to visit your home every day and to pick up your advertis-

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The las tissue ofBarTalkcontained a detailed brochure and a "Request for Quote" form to help you identify your home insurance requirements. For information about insuring your property against damage like break-ins or to obtain an additional "Request to Quote" form, call Canada Life Casualty Insurance Company at (604) 682-1858 or 1-800663-7778.

Credit for thue tips goes toR. Gmftey and R. Mclnenly, Ph.D, Jor their booK, Sifety Sense in the Home.

Quest card offers hotel discounts Now, through the B.C. Branch of the Canadian Bar Association, you can get a special low rate on a Quest card that gets you a 50% discount on room rates at 2,000 hotels and motels, plus 25% discounts at participating restaurants, plus discounts on car rentals!

Others pay $99 per year but we negotiated a special offer for CBA members: you'll only pay $29.95 (US) per year for your Quest membership. It'll pay its way if you use it at a hotel or motel just once or twice a year. And if you use it several times, you can save literally hundreds of dollars.

A detailed brochure is included in this issue of BarTalk outlining this special offer. This program has been reviewed and approved by the B.C. Branch Member Services Committee. C

Forum transcript available

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ing flyers left at your door.

• Make your home appear lived in by using automatic timers to turn lights on and off during the day.

• . Keep valuables like expensive jewelry, stocks or bonds, in a safety deposit box at your bank or trust company.

• Keep a record of serial numbers and identifying marks on your valuables, including home furniture and appliances.

• Ensure someone can reach you for any emergencies.

Violence in the Family: A Public or Private Matter? A transcript of this timely public forum held during Law Day '94 is available for the nominal cost of $7 + GST. Toorder, sendyourcheque, payable to the CBA, to the B.C. Branch. C

BarTalk is published by the British Columbia Branch of the Canadian Bar Association, 10th Floor - 845 Cambie Street Vancouver, B.C. V6B 5T3 Tel: (604) 687-3404 FAX: 669-9601 Editor: Imry Hnetka. Communications Diredor 687-3404 ugislation and Law Reform Officer: Ann Mcuan (Victoria)

598-2860 SectionTalk Editor: Shelley Bentley, Melville & Company

685-3881 Alistair Eagle Photography (688-8867) is the CBA (B.C.

Branch) official photographer.

C Copyright the British Columbia Branch of the Canadian Bar Association-1994.

The B.C. Branch of the Canadian Bar Association represents over 7,500 lawyers within British Columbia. The B.C. Branch is dedicated to improve and promote access to justice, to review legislation, initiate law reform measures and advance and improve the administration of justice. On behalf of the profession, the B.C. Branch works to improve and promote knowledge, skills, ethiCill standards and well-being of members of the legal profession and promotes the interests of its members. C