BarTalk | June/July 1994

Rice heads B.C. Branch as President for 1994/95 NEWSLETTER OF THE CANADIAN BAR ASSOCIATION, B.C. BRANCH

Eric Rice, Q.C., of the law firm Campbell Froh May & Rice in Richmond, B.C., succeeds J. Parker MacCarthy as president of the B.C. Branch for a oneyear term beginning on August 23, 1994.

JUNE/JULY

1994

VOLUME 6 NUMBER 4

Rice has been actively involved in CBA activities since 1977.

He has served on the National CBA Executive Committee, chair of the Young Lawyers Section, chair of the B.C. Branch Member Services Committee and Mid-Winter Convention Committee. He has served as an elected member of Provincial Council since 1988.

including the Self-Assessment Committee, the Interdisciplinary Committee, the Peer Review Program, and the newly formed Multicultural committee. Rice's practice focuses on corporate and commercial litigation.

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since grown to serve over 75,000 callers annually from all parts of the province. He also chaired the Lawyer Referral Advisory Committee from 1982 to 1985.

He has served on a number of joint Law Society committees

Of particular note, Rice was an originating member of the very successful B.C. Branch Dial-ALaw service in 1982 which has

President's Message .......... 3 SectionTalk ......................... 5 New Sections for '94 ......... 7

CBA (B.C. Branch) Executive Committee members for 1994/95 include: (front row, left to right) John Waddell (Vice-President); Eric Rice, Q.C., (President); Emily Reid, Q.C. (Secretary-Treasurer); ]. Parker MacCarthy (Past -President). Executive Committee 0ficers: (Back row, left to right) Gordon Turriff, Judith Milliken, Douglas Robmson, Michael Brecknell. ..p,.y/A'*-1

Members volunteer ............ 8 Legislative Update .............. 9 Royal Commission ........... 13 Law Reform report ........... 14 Reports Available ............. 14 Registry Q&A .................... 15 Dial-A-Lawyer reports ...... 17

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Members elected to the CBA (B.C. Branch) Executive Committee for 1994/95 Vice-President

B. C. Branch Executive Officers:

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John Waddell Stewart Waddell Raponi & McLean, Victoria

Secreta~- Treasurer

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Emily Reid, Q.C. Department of Justice, Vancouver

Past-President •

J. Parker MacCarthy MacCarthy Ridgway, Duncan

• • •

Michael Brecknell Hope Heinrich, Prince George Judith Milliken Crown Counsel, Vancouver Douglas Robinson Lawson Lundell Lawson & Mcintosh, Vancouver Gordon Turri££ Douglas Symes & Brissenden, Vancouver

Members elected to the CBA (B.C. Branch) Provincial Council Kootenay: •

Dana L. Urban Crown Counsel

Nanaimo: •

James Vanstone Clark & Company

•

Westminster: • •

Prince Rupert: •

Herman J. Seidemann Silversides Wilson & Seidemann

Vancouver: • • • • • • • • • •

Emily Reid, Q.C. Department of Justice Gordon Turriff Douglas Symes & Brissenden Douglas F. Robinson Lawson Lundell Lawson & Mcintosh Karen A.R. Dickson Swinton & Company Gregory Steele Steele & Company Kerry-Lynne Findlay Connell Lightbody S. Lynn Burns PLTC Elizabeth B. Lyall Russell & DuMoulin Catherine Sas Sas, Catherine A. Brenda J. Brown Boughton Peterson Yang Anderson

Victoria: •

Paul G. Scambler Clay & Company

Mary E. Mout Quadra Legal Centre Pedro deCouto Crown Counsel - Regional JohnJ.Lenaghan Lenaghan and Company

Yale: •

Kenneth J. Sarnecki Salloum Doak

Yale (Okanagan/Similkameen District): •

Kathryn J. Ginther Anderson Fowle Associates

Legal studies fellow announced Janine Benedet of Burnaby has been awarded the prestigious Viscount Bennett Fellowship for graduate legal studies for the 1994/95 academic term.

Benedet was chosen from a field of 58 legal scholars across Canada. She will pursue a one-year Master of Laws degree at the University of Michigan. Benedet plans to study the doctrine of consent as it is applied to sexual assault, in particular by comparison to tort law, such as in consent to medical treatment, and to criminal assault and contractual relations. She will also conduct a comparative examination of the law of consent as it has developed in various Common Law jurisdictions.

A graduate of UBC (1993), she ranked first in her class and was awarded the Law Society of B.C. Gold Medal for her impressiv~ academic record. The fellowship, valued at $20,000, is awarded annually to Canadian students, encourages a high standard of legal education, training and ethics. For information on applying for the 1995 I 96 Viscount Bennett Fellowship, contact the National CBA office at (613) 237-2925. C

Council approves resolution re: legal aid delivery On June 18, 1994, Provincial Council debated the issue of the proposed Legal Services Society (LSS) staff delivery plan. A resolution was passed that urges LSS to defer any further implementation of the reform package respecting staff delivery until savings and service improvements throughstaffdeliverycan be demonstrated. As well, the resolution states its opposition to specific government funding tied to the provision of staff delivery of legal aid.

This is specifically focused at suggestions that a special govern-

ment warrant would be issued for some $10 million to establish the proposed 50% staff delivery model.

Following the Council meeting, President Parker MacCarthy sent a letter to Attorney General Colin Gabelmann with copies to Treasury Board members urging the government not to issue any warrants at this time until the pilot projects have run for a length of time and demonstrate cost savings for this proposed model of legal aid delivery. At the time of publication, no response had been received from the Attorney. C

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President's Message

Dealing with the issue of overcrowding The old adage is a single lawyer will starve but two lawyers in a community will thrive. One wonders if the first complaint about overcrowding in our profession on Canada's West Coast occurred during the days of Sir Matthew Baillie Begbie when the third lawyer for the Crown Colonies of Vancouver Island and British Columbia stepped off the boat in New Westminster.

The last 20 years have seen unparalleled growth in British Columbia's legal profession. In 1973 there were approximately 2,430 members of our Law Society. Presently, there are 7,634 members not including approximately 514 members on the non-practising list. In 1993, some 390 new members were called and to date in 1994, 289 new members were called.

If you were called in 1972 or before, you now represent 17.0% of our Bar. If you were called between 1973 and 1982, you represent approximately 34.0% and if you were called between 1983 and 1993, you represent approximately 49.0%.

The early 1970s witnessed a significant rise in the number of people applying for law school and by the mid 1970s the opening of our province's second law school at the University of Victoria.

In 1975 there were 270 graduates from UBC. . By 1978, with UVic's first graduating class coming on stream, the number of graduating law students reached 294. By 1983, our two provincial law schools granted 331 LL.B. degrees.

This growth was not unique to British Columbia. In the early 1960s, there were about 12,000 lawyers in all of Canada. By 1993, it was estimated that nationally there were between 51,000 and 53,000 lawyers.

By the early 1980s the issue of the number of lawyers in the profession caught the attention of the various law societies. In 1983, a special committee report presented to the Law Society of Upper Canada examined the issue of overcrowding in Ontario and focused on two main themes.

One was the need for increased consultation with government and law faculties to exchange information on the difficult financial realities of practice being experienced at that time, to review the number of law school seats available and to work cooperatively with the law schools and students to facilitate employment of law graduates in careers other than private practice, both within the private sector as well as the public sector.

The other theme was the need to examine practical solutions for those already called who had been unable to find employment. Recommendations included offering training and job hunting skills and improving placement service programs.

The Law Society of British Columbia examined the general issue of overcrowding in early 1985. At that time, the Benchers heard a debate from leading Ontario and British Columbia exponents of each side of the controversy of restricting the number of lawyers gaining admission to the profession. A Bencher sub-committee was established to deal with the issue of "whether and how the Law Society should limit the number of lawyers?" They examined the voluminous amount of material produced in Ontario and then dealt with the issue from a public interest perspective.

Their observation, as reported in the Benchers' Bulletin, was that, "No correlation could be

J. Parker MacCarthy CBA (B.C. Branch) President 1993/94

found between recently called lawyers and the incidence of complaints, incompetence or negligence claims." Accordingly, they concluded that the public interest would not be served by restricting the number of lawyers.

The improved economy of the late 1980s relegated the oversupply issue to the back burner.

The issue was neither dealt with further nor resolved to anyone's satisfaction. The profession's attention was simply diverted to different issues.

But the faltering economy of the early 1990s has again moved the issue to the forefront. Overcrowding was identified by our survey of members of the B.C. Branch of Provincial Council conducted last summer, as one of the major issues facing the profession in the next five years. Several members of our Association have raised the issue in correspondence and in direct discussions with the B.C. Branch Executive.

Law students, articling students, and newly called lawyers live the problem on a daily basis. Approximately 12% of the 1994 UBC graduating class are still without articles. Newly called lawyers and those with a Please turn to page 4

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President's message (continued from page 3)

few year's experience compete for a reduced number of positions. Many established practitioners complain about the "cut throat fee competition" and observe an influx of new lawyers into many geographic regions already considered to be overserviced and into certain practice areas, such as residential conveyancing, which are viewed as already saturated.

However, the magnitude of the numbers entering the profession is only one of the dynamics coming into play.

Others include encroachment by non-lawyers on what were at one time considered part of the traditional purview of lawyers, such as representation before administrative tribunals, taxation, estate planning, and wills and estates. Our loss of exclusivity in many of these areas started in the early 1970s.

Of equal concern is the potential loss of legal work in the personal injury field due to no fault insurance schemes and loss of private tariff legal aid work with the introduction of proposed s taffla wyer models. We must also ponder whether residential conveyancing and mortgage work will continue to be a mainstay of a general solicitor's practice in the next decade. The rise of unsupervised paralegal activity in many jurisdictions has some significant implications which must be considered.

British Columbia faces a further problem. With its stronger economy and more attractive climate, it has become a destination for students seeking articling positions and for called lawyers desiring to relocate.

When the overcrowding issue was last examined in 1985, there were 5,423 members of the profession in B.C. Now there are 7,634members excluding the nonpractising list. In its publication, Job Futures: British Columbia's Occupational Outlook, published

in February of 1993 by the Ministry of Advanced Education and Job Training, the following observation is made about B.C. job prospects for lawyers: "The outlook to 2001 is for abave average growth with a total of2,640 openings projected from new jobs and attrition. This outlook is based on prospects for business services, which employs 91% of lawyers, and gauernment,where6% areemployed.

Demand for legal services and specialties are affected by legislative changes. Growth in specialties include constitutional law, consumer protection, environmental law, international law, family law and corporate securities law. "

The 2,640 "openings" predicted by the year 2001 presumed 1,550 new positions and 1,090 positions arising from attrition and are based on 1992figures. This translates into a 2.5% annual growth rate. But curiously, the Ministry's projected number of legal practitioners by the year 2001 is only 7,710.

We appear to be alarmingly ahead of schedule with 7,634 members presently practising. This points to the immediate need tore-examine these issues in a comprehensive way from a B.C. perspective. Solutions to overcrowding must be found beyond simply attempting to limit the enrollment of first yearlaw students. In fact, the number of first year positions at both UVic and UBC has been reduced in the last two years. At UBC~ the intake into the undergraduate law program has been reduced from 240 to 180. However, UBC has increased the total number of students accepted into the LL.M. and Ph.D. programs.

UBC is currently reviewing some 2,000 admissions applications for those 180 positions available in 1994!

This issue and broader concerns about the future of legal practice demand coordinated action to be undertaken by our profession through the CBA and the Law Society, in conjunction with law schools and government.

The action should include: • An in-depth study to col· lect, analyze and exchange relevant information.

• Cooperative efforts to develop strategies to identify new areas of practice which may be emerging in the future to replace those which are diminishing and to ensure that lawyers have the knowledge and training required to move into these areas. Alternative Dispute Resolution is an excellent recent example.

• Examination of specialization within legal practice and formulating protocols for referrals to specialists within our profession, rather than to non-legal specialists. Tax and estate planning matters immediately come to mind.

• Finding efficient and innovative means of matching articling and career opportunities for legally trained individuals both within and outside of legal practice.

• Completing an inventory of existing resources, programs and recent initiatives which are attempting to deal with the numerous aspects of the overcrowding issue and the future oflegal practice and then to ensure that they are working in a coordinated fashion and not in isolation.

Both the public interest and the interest of our members will be served by these and other efforts that seek to ensure there is an adequate supply of lawyers and legally trained individuals, properly distributed geographically and within our economic infrastructure, and who possess the required skills and expertise to meet the demands of our economy and our society in the 21st century.

The B.C. Branch welcomes your ideas. As a profession we can no longer afford to be diverted from this issue.

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

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Shelley Bentley

Judges discuss current provincial court family issues During a recent panel discussion before the Victoria Family Law Section guest speakers Judge L. Chaperon and Judge J. Kay raised several recurring Family Court issues involving restraining orders, maintenance orders and supervised access.

Jurisdiction and Notice for Restraining Orders Judge Chaperon noted that the Provincial Court has no jurisdiction to grant restraining order relief unless there are children involved. The Provincial Court's jurisdiction is derived from its jurisdiction in respect of custody, as discussed in the well-known Polglase decision.

Judge Chaperon expressed concern about the frequency with which delays and potentially serious problems arise because applicants do not meet this threshold test.

Judge Chaperon advised that when asking the Court for ex parte relief, counsel must establish the urgency of the application and satisfy the Judge that there is a reasonable apprehension that the very mischief that the ex parte application is seeking to prevent will occur. For

example, there is a: real danger one party will flee with the children; continuing abuse will occur; or one of the individuals is volatile due to alcohol or drug dependency. If ex parte relief is unlikely to be granted because of the applicant's inability to meet the threshold of the urgency test, short notice upon the respondent is often a suitable alternative. The sheriffs office is a reliable resource for effecting service.

Maintenance Orders Judge Kay commented that discrepancies, if any, between Supreme Court and Provincial Court maintenance orders would appear to be the result of the type of evidence being brought before the Court.

Judge Kay observed that counsel, when making maintenance applications in Family Court, frequently do not provide the Court with a copy of the tax tables or case law they are relying upon for their applications.

Counsel must provide the Court with reliable, objective information about the financial circumstances of the parties in order for the Court to properly determine quantum of maintenance. Judge Chaperon commented that allocation of housing costs for children can beestablished by comparing the cost of a one-bedroom apartment against a three-bedroom apartment.

In general, the Court apportions child care costs on gross income, balancing that against debts taken on form the marriage. With increased numbers of blended families, a new approach appears to be developing. This approach considers the total family income available to each family and apportions maintenance accordingly.

Supervised Access Orders for supervised access frequently result in no access taking place for the access parent. Judge Chaperon recommends that lawyers seeking supervised access orders provide the Court with names of potential supervisors, the relationship of the supervisor to the parties, and specified times for access.

Lawyers should also ask the Court for a fixed date for review of the need for supervision. During discussion~ the issue of how to terminate supervised access was raised. Judge Chaperon recommended that independent evidence regarding the need for supervision could be provided through an access report or a mediator's report. Because there is often a delay in obtaining access reports through the court systems and because of the cost of private reports, lawyers should be aware that many union agreements provide for counselling.

Often these counsellors are prepared to make a report to Court.

Comments on the business aspects of drafting wills Gerry Neely led a stimulating discussion in a recent Victoria Wills and Trusts Section meeting on the changing emphasis on wills as a loss leader. He spoke of the growing practice in Vancouver of charging for wills on an hourly basis rather than a flat fee. There is a diminishing trend among trust companies to provide continuing referrals from the making of the will to the probating of the estate.

Generally, charges for wills are too low for the time spent.

6

SectionTalk (continued) With the change in the Supreme Court Rules from a percentage charge for estates to an hourly charge there has been some shift in approach to billing among practitioners. However, the general trend of probate accounts still seems to bear some relation to the value of the estate. Trust companies continue to require detailed accounts for the benefit of the beneficiaries.

Neely referred to a recent taxation of a lawyer's and an executor's account by the Master.

The estate required sale of real estate, dealing with a war bond, loss of the original will and a number of other matters. There was a fee agreement allowing the lawyer 2 per cent of the value of the estate or 40 per cent of the executor's fees . The Executor's account was $15,000, the lawyer's was $13,000. The Registrar allowed the executor 2 per cent of the estate which was $6,000 and about one and a half per cent to the lawyer, about $4,500. He referred to the five factors in the Trustee Act which influence the amount of the accounts. The case is under appeal.

There was a discussion during the Section meeting of the difficulties in retaining old wills which are probably revoked. It was suggested that when instructed to prepare a new will lawyers write to the previous lawyer informing him or her that the old will is revoked and requesting that it be forwarded.

This would allow old will files to be closed permanently.

Practice tips on builders' liens Paul Taberner provided helpful practice tips on numerous aspects of builders' lien matters for the General Practitioners (Lower Mainland) Section. He commented generally that the

Builders Lien Act is difficult to understand and is constantly undergoing judicial interpretation.

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•

The date for filing a lien is: a) within 31 days of substantial completion of the head contract in the case of a Contractor or Sub Contractor; or

Swearing the Affidavit

He began by advising lawyers who do not know their client well to have the client swear the Affidavit of Lien. Lawyers who swear liens on behalf of their clients may be held personally liable if the lien is found to be invalid.

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Address for Service

If the claimant is a new client or if the client is not sure if he or she wants to retain the lawyer for future services, it may be wise to use the client's address for service. The 21 Day Notice will be sent to the person named in the appropriate section in the Affidavit of Lien.

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Strata Titles

In the case of a new strata titled complex, the developer will generally be the registered owner of all of the units. However when sales are occurring the ownership will change day by day. If you are planning to file a lien against the complex you should fill out the lien declaration in the developer's name and add "and others." The Land Title Office will accept the lien over all strata lots, even though some have been sold to others. Section 75 of the Condominium Act limits liens to 31 days after the transfer has been filed you may then be subject to an application by the owner against your client for wrongful filing of a lien. Taberner advised that on one matter, after filing a lien on a new project he started actions against the developer and effectively stopped the marketing program to sell units. The owners were concerned about publicity and paid up on their lien rather ~an deal with a loss of sales or dtsgruntled purchasers.

Time Limits

b) in the case of a "materialman" or supplier within 31 days of substantial completion of improvement.

The owner has 40 days to retain the hold-back.

You must know the relationship of the owner and the contractor.

You must be aware when the owner is the developer and the contractor for each trade or supplier. If the owner is the general contractor or developer, he or she can contract out each portion of the construction and then each contractor only has 31 days from completion of his or her contract to file a lien. A "materialman" has 31 days from substantial completion of the improvement. To protect the owner you should obtain a list of suppliers from the contractor and check to see if the suppliers have been paid.

There is potential for the suppliers to file liens long after the contractor has been paid.

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The Holdback

The statutory right to a holdback is only between the owner and the contractor and not between the owner and each contractor or subtrade down the line, unless by agreement.

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Multi-Unit Developments

If the developer has subdivided property and your client has serviced the whole property, you must be sure to lien all of the property and n~t jus.t the portion that your chent ts currently dealing with. Check the legal description carefully to . see if it has been recently subdivided.

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SectionTalk (continued) • Bonds If the contractor is bonded then you may want to put the bonding company on notice that you have filed a lien or are making a claim on behalf of a subcontractor, subtrade or materialman.

Obtain a copy of the bond.

Usually the architect or the contractor will have a copy. Examine the bond to see if there are any time limits for notice to be given in regard to claims to be made. If the bond is posted you may want to ask for financial statements of the bonding company to ensure that the bonding company has the ability to perform under the bond.

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When to Start an Action

Within one year of the day the lien is filed you must start an action and file a Lis Pendens. If after filing the lien, a reasonable time has passed without any positive response then start an action. It is Taberner's experience that being aggressive pays off. Cooperation between a group of claimants can create additional pressure to settle.

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21 Day Notice

This is a critical point that can be easily missed. The 21 Day Notice runs from the date of mailing of the Notice. When sending out a 21 Day Notice, do so by registered mail to the address for service. Often there is no response or the letter is not picked up. Proof of receipt of the Notice is not necessary.

You can then apply to have the lien struck off.

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Jurisdiction

The action must be commenced . in the Court Registry of the JUDICIAL DISTRICT IN WHICH 11fE lAND LIES. This may be different from the land registry in which the land is situate. For example, Richmond is in the Vancouver Judicial District but in the New Westminster County for land title purposes .

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Removing the Lien Under Section 32 of the Builder's Lien Act

The court application must be in the owner's name. If acting for a contractor, you must still make application in the owner's name and must therefore obtain his or her consent. There are still errors made in the belief that only 10% must be paid into court under Section 20 of the Act. Under Section 32 the amount of the lien claim must generally be paid into court.

There are specific cases that have allowed less than the amount claimed to be paid in, but based on their particular facts.

If the amount claimed includes

other subtrades or suppliers, then you only pay the amount of the claim. For example, if a drywaller liens for $10,000 and his or her supplier liens for $5,000 the only amount paid into court is $10,000 and not $15,000, plus security for costs.

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Security of Costs

If the owner is bringing on an

application against various lien claimants under Section 32, try to have the amount of your lien and your security for costs identified as a separate item to be applied only to your client.

Do not leave it as part of a large package with other claimants.

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Lawyers Holding Security

by Agreement

If the parties agree to have their

lawyers hold security monies rather than a court, be sure that the agreement between the lawyers states that the monies are being held in lieu of an action under Section 32. If a 21 Day Notice has been served, an action must still be commenced even if there is an agreement for the lawyers to hold the security in lieu of a Section 32 action. C

New Sections approved · At the June 18 Provincial Council, two new Sections, Gender Issues and Plain Language, were approved and enrollment will be sought for the 1994/95 program year beginning in July.

Cyndi Miller of Davis & Company spoke to Council on forming the Gender Issues Section. The formation of this Section comes as a result of an approved resolution of the Wilson Report. The Section will provide a forum for considering and implementing the recommendations of the Law Society of B.C. and the Wilson Report's recommendations. As well the Section will provide members an opportunity to network and share information on such practical topics as alternate practice arrangements and parental leaves.

Cheryl Stephens spoke to Council regarding the Plain Language Section. This Section will further the work of the CBA in the field of plain language. The Section will review drafting projects, forms and documents. The Literacy Interest Sub-Committee will focus on issues and practical solutions forlawyers in handling concerns when working with clients who may have low literacy skills.

Enroll now for 94/95 Sections Section Enrollment forms have been sent to all members for the B.C. Branch Section year from July 1994 to June 1995. Enrollment is required annually. A new feature this year,atno charge to members, is automatic enrollment in National CBA Sections with corresponding B.C. Branch Sections when members enroll to receive B.C. Branch Section Notices & Minutes. Refer to the Section Enrollment forms or call Fran Hodgkins at the B.C. Branch (6873404) for further information. C

8

B.C. Branch members volunteer and assist with legislative reviews Condominium Act review: B.C. Branch President Parker MacCarthy recently received a letter from Finance Minister Elizabeth Cull to thank the members of the condominium sub-committee of the Vancouver Real Property Section of the B.C. Branch of the Canadian Bar Association.

Sub-committee members included: • • • • • •

Lisa Vogt, McCarthy, Tetrault Lynda Darling, Bull, Hausser and Tupper Arlene Henry, Ratcliff & Company Lynn Ramsay, Swinton and Company Franco Trasolini, Davis and Company, and Ed Wilson, Lawson, Lundell, Lawson and Mcintosh.

These members have spent considerable time and effort over the past several years to review draft legislation and to provide technical advice to ensure sound policy and legislation through the preparation of the draft Condominium Act. People's Law School volunteers: Judge Tony Palmer, past-chair of the People's Law School, wrote to thank the B.C. Branch for its assistance in its recent call for volunteers. Over 200 · new volunteers from all parts of the province came forward to be added to the pool of about 600 lawyers who support the various public legal education programs provided by the People's Law School. He also notes that Vancouver lawyer Anna Fung is the new chair of the People's Law School.

Child Protection Committee: Bill45 -Child, Youth and Family Advocacy Act and Bill 46 - Child, Family and Community Service Act have both been introduced.

A B.C. Branch Committee has been involved in the review of these acts since 1992 including report preparation and presentation on two occasions. Committee members also assisted in reviewing and commenting on the first reading bills.

Special kudos to Committee chair Sonja Sanguinetti, Sanguinetti & Company, Squamish, and to the following Child Protection Committee members: • • • • • • • •

Stephen SoU, Soli, Stephen, Kamloops Michael Newcombe, Christiansen, Newcombe & Kennedy, Kelowna Dennis Boon, Porter Ramsay, Kelowna Barbara Bulmer, Maxwell Schuman & Company, Vancouver Dianne Mcdonald, Dinning Crawford & Company, Victoria Gordon McPherson, Swedahl & McPherson, Surrey Rose Raven, Stilling Blackmore Raven Haem, Surrey Karen Wight, Wight, Karen, Prince George

CBA members appointed to commissions Vancouver lawyer Marion Buller of Connell Lightbody has been appointed to the British Columbia Police Commission.

Buller practises in Vancouver and recently conducted areview of legal aid services to aboriginal people in B.C. Herreport, "Review of Legal Services to Aboriginal People, " was released by the Attorney General on May 12, 1994. Buller served as commission counsel for the Cariboo-Chilcotin Justice Inquiry, conducted by Judge An- · thony Sarich.

Joan E. Hughes of Kamloops

B.C. Branch President Parker MacCarthy (left) welcomed Trevor Griffin, Attorney General for South Australia, as a special guest to the June 18 Provincial Council meeting.

has been appointed to the Board of Parole for a four year term. Hughes has been an associate lawyer with the law firm of Jensen, Mitchell and Company since 1990. From 1991 to 1993, she was a board member of the Kamloops and District Elizabeth Fry Society.

Janice R. DillonofWest Vancouver and Catharine Herb-Kelly of Vancouver have been appointed to two-year terms and William Sundhu of Williams Lake to a one-year term to the newly formed Medical and Health Care Services Appeal Board. The Board will hear appeals of decisions made by the Medical Services Commission concerning the operation of the Medical Services Plan. · It is independent of the Commission.

Dillon specializes in health and administrative law with Harris and Company. She is also Associate Clinical Professor, Faculty of Medicine, UBC. Herb-Kelly is a partner with Guild, Yule and Co., specializing in administrative law and civil litigation. Sundhu specializes in criminal, civil and family law and has served as the president of the Cariboo Bar Association. [J

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 n~t be relied upon. Lawyers should refer to the specific legislative or regulatory provision.

ACTS IN FORCE FROM PREVIOUS SESSIONS The following acts were passed in previous sessions and have been brought into force by regulation.

Forest Amendment Act (No. 3), 1993, S.B.C. 1993, c.45, amends the Forest Act, R.S.B.C. 1979, c.140, repealing s.54 which allowed the minister to proportionately reduce the allowable annual cuts authorized in all forest licences or timber sale licences in a timber supply area with a new provision which exempts certain forest licences and timber licences from the reductions in allowable annual cuts and sets out how a reduction in allowable annual cut is to be apportioned. section 5 of the Act in force June 2, 1994

Motor Vehicle Amendment Act, 1992, S.B.C. 1992, c.65, amends the Motor Vehicle Act, R.S.B.C. 1979, c.288, prohibiting a driver licensed in the province from having more than one driver's licence, and making housekeeping amendments. sections 1(b), 6(c) and 7 in force June 10, 1994

ACTS IN FORCE FROM 1994 SPRING SESSION The following acts, passed in the 1994 spring session, are now in force and are reported in order of bill number.

Limitation Amendment Act, 1994, S.B.C. 1994, c.8, (Bill 9), amends the Limitation Act, R.S.B.C. 1979, c.236, permitting an .action for damages for sexual assault to be brought at any time without limitation period, providing that the limitation periods in the ultimate limitation section (s.8) do not begin to run until the plaintiff reaches the age of majority and reviving causes of action barred under s.8 before enactment of this act and ex-

Ann McLean

tending the limitation period for breast implant victims to December 31, 1995. section 2 of the Act retroactive to July 1, 1975; balance in force June2, 1994

School Amendment Act, 1994, S.B.C. 1994, c.15, (Bill10), amends the School Act, S.B.C. 1989, c.61, making changes relating to the passage of by-laws, timing of budgets and other financial matters. in force June 2, 1994

Budget Measures Implementation Act, 1994, S.B.C. 1994, c.4, (Bill14), repeals the Energy Council Act, S.B.C. 1992, c.5, and amends the (a) British Columbia Endowment Fund Act, S.B.C. 1992, c.33, removing the reference in s.3 to "in perpetuity", allowing funds to be transferred to the general fund and repealing the 路 Act on June 30, 1995 or an earlier prescribed date, (b) Financial Administration Act, S.B.C. 1981, c.15, permitting the transfer of long term investments from the Endowment Fund to the general fund, (c) Pension (Teachers) Act, R.S.B.C. 1979, c.320, making amendments to provisions relating to the inflation adjustment account of the fund, (d) School Act, S.B.C. 1989, c.61, requiring a board to spend its allocation so that not less than a specified amount is spent on aboriginal or special needs programs and not more than a specified amount is spent on administration, providing that a grant to a board may be reduced or withheld if it fails to follow the direction of the minister in this regard and repealing the provisions dealing with special education funding, and

(e) Special Accounts Appropriation and Control Act, S.B.C. 1988, c.26, terminating the British Columbia Cultural Fund Special Account,

10

Legislative Update (continued) and makes consequential amendments to the Freedom of Information and Protection of Privacy Act. sections 1 - 3, and 5 (B. C Endowment Fund Act and Financial Administration Act) in force June 2, 1994; sectiot1s 4 and 6 (Energy Council Act and Freedom oflnfonnation a11d Protection ofPrivacy Act) in force December 1, 1994 or an earlier date set by r~gulation; sectim1s 7 a11d 8 [Pension (Teachers) Act] in force eJtectiveApril1, 1994; sections 9 - 11 (School Act) in force effective March 10, 1994; sectim1s 12 - 14 (SpecialAccountsAppropriation and Control Act) in force effectiveApril1, 1994

Corporation Capital Tax Amendment Act, 1994, S.B.C. 1994, c.19, (Bill15), amends the Corporation Capital Tax Act, 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. sectio11s 1, 2, 5(a), (c) a11d (f), 8(c), 10, 16- 19, 21 a11d 22 of the Act i11 force April1, 1992; sections 3, 4, 5(b), (h) and (i), 7, 8(d) and 12 of the Actin forceApril1, 1993; sections5(d), (e), (g) and (j), 6, 8(a) a11d (b), fJ, 13-15 and 20 oftheActinforceApril 1, 1994; section 11 of the Act in forceApril1, 1993 immediately 芦fter the cmni11g ill to force of section 25 of the Corporation Capital TaxAmendmentAct, 1993

Mineral Tax Amendment Act, 1994, S.B.C. 1994, c.12, (Bill16), amends the Mineral Tax Act, S.B.C. 1989, c.55, making the rate of tax payable on a coal mine equivalent to that payable for other mines, providing a 1993-94 straddle provision for coal mines, providing for a new mine allowance to be added to the cumulative expenditure account of a mine and creating and providing for an exploration account for operators. in force effective March 23, 1994

Property Transfer Tax Amendment Act, 1994, S.B.C. 1994, c.14, (Bill17), amends the Property Transfer Tax Act, S.B.C. 1987, c.15, adding to the路 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 term 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. sections 1(b) and (c) and 2oftheActill force effective January 31, 1994; sections 1(a) and 3- 8 of the Actm force effective March 23, 1994

Taxation Statutes Amendment Act, 1994, S.B.C.

1994, c.16, (Bill19), amends the (a) Home Owner Grant Act, S.B.C. 1980, c.18, increasing the net taxable residential value threshold beyond which home owner grants may be reduced from $400,000 to $450,000, 路

(b) Hotel Room Tax Act, R.S.B.C. 1979, c.183, permitting an operator to obtain a refund of tax paid in proportion to the amount of the applicable account written off and extending certain appeal periods from 60 to 90 days, (c) Income Tax Act, R.S.B.C. 1979, c.190, permitting a taxpayer to deduct tax paid under the Mineral Tax Act and providing a 1994-95 straddle provision, (d) Motor Fuel Tax Act, S.B.C. 1985, c.76, authorizing a regulation to reduce the tax rate on jet fuel, permitting a collector or dealer to obtain a refund of tax paid in proportion to the amount of the applicable account written off, increasing the refund available to handicapped persons from $300 to $400, and extending certain appeal periods from 60 to 90 days, (e) Social Service Tax Act, R.S.B.C. 1979, c.388, increasing the thresholds for the surtax on passenger vehicles, clarifying that certain 路 charges included in the definition of "purchase price" are those which are incurred at or before the time that title to the tangible personal property passes, clarifying that "use" excludes a wholesale and retail sale, permitting the trade-in value of a vehicle to be deducted from the sale price of the vehicle before tax is calculated and repealing provisions which deemed some leases with an option to purchase to be sales, exempting from tax tangible personal property consumed or used on interprovincial or international flights of commercial airlines, extending certain appeal periods from 60 to 90 days and permitting a collector to obtain a refund of tax paid in proportion to the amount of the applicable account written off, and (f) Tobacco Tax Act, R.S.B.C. 1979, c.404, permitting a dealer to obtain a refund of tax paid in proportion to the amount of the applicable account written off and extending certain appeal periods from 60 to 90 days. sectim1 1 (Home Owner Grant Act) in force effective January 1, 1994; sections 6 and 7 (Income Tax Act) in force January 1, 1995; section 10 (Motor Fuel Tax Act- handicapped rebate) in force effective August 1, 1993; sections 2- 5, 8, 9 and 11 - 32 in fore, effective March 23, 1994

BC Forest Renewal Act, S.B.C. 1994, c.3, (Bill32), establishes a crown corporation called Forest Renewal BC whose mandate includes increasing in-

11

Legislative Update (continued) vesbnent in the forest resources and forest land base, promoting activities that assist forest industry diversification, the further processing of wood supply and increased manufacturing of wood products, investing in the environmental values of the forest, fostering forest employment and supporting community development and adjustment. in force /tine 2,. 1994

Skills, Training and Labour. Statutes Amendment Act, 1994, S.B.C. 1994, c.23, (Bill 39), amends Pension Benefits Standards Act, S.B.C. 1991, c.15, inter alia clarifying that the Act applies to public sector pension plans unless specifically exempted by the Act or regulations and that the Act prevails over other enacbnents relating to such plans and providing that an employer must pay the costs of winding up a pension plan if the employer will remain in operation after the plan winds up. sections 11, 12,.14 and 15 of the Actin force/tllle 10,1994

Public Education Labour Relations Act, S.B.C. 1994, c.21, (Bill 52), provides for province wide collective bargaining for school boards and trade unions representing teachers and makes consequential amendments to The British Columbia School Trustees Association Incorporation Act, the Public Sector Emplayers Act, the School Act, the School Amendment Act, 1993 and the Teaching Profession Act. in force /tine 10, 1994

INTRODUCTORY BILLS TO NOTE The following bills were introduced in the spring 1994 session, but as of June 10 had not progressed to third reading. They are reported in order of bill number.

Land Title Amendment Act, 1994, (Bill 28), amends the Land Title Act, R.S.B.C. 1979, c.219, enabling land owners to enter into conservation covenants with parties, including non-government organizations designated by the Minister, and to have the covenant registered on title.

Amenities which may be protected include natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the affected land. Consequential amendments are made to the Assessment Act, Heritage Conservation Act and Property Transfer Tax Act. The Act will be brought into force by regulation.

Environmental Assessment Act, (Bill 29), establishes a process for the assessment of the environmental, economic, social, cultural, heritage

and health effects of reviewable projects, replacing three different processes which were previously used to evaluate energy projects, mine developments and major projects. The Environmental Assessment Office is established to co-ordinate review of proposals. A Project Registry is established to provide access to information by the public. The Environmental Assessment Board is established to publicly review complicated proposals and advise cabinet. The Act will be brought into force by regulation.

Waste Management Amendment Act, 1994, (Bill 35), amends the Waste Management Act, S.B.C. 1982, c.41, adding a new Part 4.1, "Clean Air Provisions" providing for the regulation of emissions from new motor vehicles and from engines and fuels and for the regulation of new solid fuel burning domestic appliances and makes consequential amendments to the Motor Vehicle Act. The Act will be brought into force by regulation.

F01-est Practices Code of British Columbia Act, (Bill40), establishes a framework for managing forest and range resources in the province, rationalizes the requirements which apply to forest practices and makes them enforceable. The maximum fine for a violation is increased to $1 million and repeat offenders may be fined $2 million or more. Violators may have cutting rights suspended or reduced and approval of future logging activities depends on an interest holder's current performance. There is an expanded role for field staff. A forest practices board is provided for, which will be an independent agency overseeing forest practices, including auditing forest practices and investigating public complaints. A forest appeals commission will hear appeals from decisions made by officials. Regulation of forest practices on private managed lands is provided for. The Act will be brought into force by regulation.

Child, Youth and Family Advocacy Act, (Bill 45), establishes the office of Child, Youth and Family Advocate, as an independent officer of the Legislature to provide advocacy services for children, youth and their families receiving services under the Child, Family and Community Service Act and other services which may be specified by regulation and makes a consequential amendment to the Freedom of Information and Protection of Privacy Act. The Act will be brought into force by regulation.

Child, Family and Community Service Act, (Bill 46), repeals the Family and Child Service Act, S.B.C. 1980, c. 11. It provides for voluntary support services and working with families and others for the protection of children. There are expanded definitions of when children are in need

12

Legislative Update (continued) of protection and the court is given greater flexibility. It provides several options for protection of children. A child and family review board is authorized to review complaints regarding children in care. Consequential amendments are made to the Adoption Act, Adoption Amendment Act, 1990, Community Care Facility Act, Evidence Act, Family Maintenance Enforcement Act, Family Relations Act, Guaranteed Available Income for Need Act, Law and Equity Act, Miscellaneous Statutes Amendment Act, 1985, Miscellaneous Statutes Amendment Act, 1991, Provincial Court Act, Public Guardian and Trustee Act, Regulations Act, Residence and Responsibility Act, Social Workers Act, Society Act and Vital Statistics Act. The Act will be brought into force by regulation.

Residential Tenancy Amendment Act, 1994, (Bill 50) amends the Residential Tenancy Act, S.B.C. 1984, c.15 (a) providing that a tenancy agreement entered into by a person under the age of 19 is enforceable, with retroactive effect to all tenancy agreements in effect on the coming into force of the section,

(b) providing that consecutive leases aggregating more than 20 years are deemed to each exceed 20 years and therefore require municipal approval, providing that a tenancy agreement for which prior approval is needed and not given is void if entered into after June 13, 1994 and providing that where a tenancy agreement is void due to lack of approval all payments made by the tenant are a debt owing by the landlord to the tenant, with retroactive effect to June 13, 1994, (c) allowing an arbitrator to order that a tenant may spend and withhold from rent up to one month's rent on repairs if a landlord fails to comply with a repair order and allowing a tenant to make emergency repairs in certain cases and deduct the cost from rent, (d) allowing a court to order a reduction of rent if a landlord fails to comply with the Act, a tenancy agreement or repair order, (e) allowing a court to authorize a tenant to change the locks and keep the only key where it is satisfied that the landlord may enter the premises in breach of s.ll, (ÂŁ)expanding the matters which may be arbitrated to include rent reduction, emergency repairs and change of locks by a tenant and making an enforced agreement to opt out of arbitration unenforceable, (g) providing a mechanism for arbitration of rent increases, retroactive to notices of rent

increase since December 14, 1993, and (h) prohibiting a landlord from discriminating against a tenant or prospective tenant on the basis of their source of income,

and makes consequential amendments to the Residential Tenancy Amendment Act, 1993. The majority of the Act will be brought into force by regulation.

Family Maintenance Enforcement Amendment Act, 1994, (Bill 51), amends the Family Maintenance Enforcement Act, S.B.C. 1988, c.3, inter alia

establishing a process for the making of bench maintenance orders to accelerate the filing and enforcement of orders, allowing the director to authorize people to take enforcement action on their own while remaining enrolled in the program, enhancing the ability of the director to obtain necessary information, providing more flexibility in dealing with payments received from the debtor, providing for the payment by the debtor of interest on arrears of maintenance, allowing the director to serve attachment notices directly and to suspend the requirements of attachment notices, enabling the enforcement of attachment notices from outside the province, strengthening the sanctions against debtors who repeatedly default but who have the ability to pay, allowing the court at a default hearing to take into account the income and assets of the creditor spouse in deter. mining the debtor's ability to pay, providing for enforcement of reporting orders, providing for the registration of maintenance orders against personal property and the creation of a lien, and allowing the court to order third parties to attend hearings and file financial statements if their association with the debtor affects the debtor's ability to pay maintenance, and makes consequential amendments to the Family and Child Service Act, the Family Relations Act and the Guaranteed Available Income for Need Act. The Act will be brought into force by regulation.

REGULATIONS TO NOTE Ombudsman Act, R.S.B.C. 1979, c.306, Schedule is amended to add Regional Health Boards and Community Health Councils established under the Health Authorities Act to the list of authorities which are subject to the Act. B.C Reg. 130/94 effective April28, 1994

Guaranteed Available Income for Need Act, B.C. Reg. 479/76, the Guaranteed Available Income for Need Regulations, is amended to allow disclosure of information about an individual to a police officer to assist in an investigation where there is a

13

Legislative Update (continued) significant likelihood of harm to the safety of an individual or the public or where the investigation pertains to fraudulent receipt of welfare.

B.C &g. 146/94 effective May 14 1994

Social Service Tax Act; Social Service Tax Amendment Act (No. 2), 1993, B.C. Reg. 84/58, the Social Service Tax Act Regulations is amended retroactive to June 1, 1992, providing procedures where a person appointed by the commissioner is denied access to a record by a lawyer claiming solicitor client privilege.

B.C &g. 155/94 effective May 26, 1994

Court Rules Act, B.C. Reg. 221/90, the Supreme Court Rules, Appendix C, Schedules 1 and 2, are amended increasing the civil court fees and adding new items for which fees are payable.

B.C &g.144/44 effective June 1, 1994

Court Rules Act; Small Claims Act, B.C. Reg. 261/93, the Small Claims Rules, Schedule A, are amended increasing court fees and adding and deleting items for which fees are payable.

B.C &g. 145/94 effective June 1, 1994

Court Rules Act, B.C. Reg. 221/90, the Supreme Court Rules are amended

(a) as to Rules 14, 17, 18 and 25, clarifying when an appearance may be filed and the timing and procedures for applications for default judgment or summary judgment,

journ an application before or at the hearing of the application, (c) as to Rule 31(1), providing that a notice to admit may not be delivered prior to the filing of a statement of defence or answer and counter petition, (d) as to Rule 39, providing that the trial record must be filed not more than 30 days and not fewer than 14 days before the trial date, instead of the certificate of readiness, (e) as to Rule 40(26), providing that part of a deposition may be presented where the parties have agreed or it is ordered by the court, (f) as to Rule 56, providing for Form 121 (Undertaking) and Form 122 (Release Order) to be used on release of a person pending a contempt hearing, (g) as to Rule 57, providing for Form 68A, . the form of certificate to be filed following review of a bill under the Legal Profession Act, (h) as to Rule 58(12), providing that money on deposit will be kept for two years before being sent to the minister, .

(i) as to Rule 60B(41), providing for a certificate of pleadings in divorce proceedings which are not set down for trial, and

0) as to Forms 24, 37, 67 and 89, making minor amendments.

(b) as to Rule 18A, allowing the court to ad-

ClassAction legislation

ADR in the justice system

The Attorney General recently announced that the government intends to introduce legislation next spring permitting class actions to be brought in British Columbia. Class action suits have been used in other jurisdictions in actions involving consumer goods, civil rights, securities, competition law and the environment.

The Ministry of Attorney General is developing a policy on the use of alternate dispute resolution in the justice system. The Canadian Bar Association (B.C. Branch ) has been invited to provideinputtotheMinistry's working group.

The Ministry of Attorney General has issued a Consultation Document, which discusses policy issues and options for the legislation. A copy may be obtained from policy analyst Ruth Rogers (387-4574). Comments from the Bar are welcomed and the deadline for submissions is July 31.

Representatives from the Branch's Legislation and Law Reform Committee and from the Administrative Law, Alternate Dispute Resolution, Business, Civil Litigation, Family, Insurance, Lesbian & Gay Rights, Real Property and Wills & Trusts Sections have formed a committee which will meet with the Ministry of Attorney General working group and will continue to pro-

B. C &g. 143/94 effective July 1, 1994

vide information and advice as the policy is developed and implemented. 路

Royal Commission reports and studies available "Proceed With Care," the final report of the Royal Commission on New Reproductive Technologies, is now available. As well, 15 volumes of research studies and an executive summary have been published. For a price list or ordering information contact:

Canada Communication Group 45 Sacre-Coeur Blvd.

Hull, Quebec K1A 059 Tel: (819) 956-4802 or FAX: (819) 994-1498.

14

Law Reform Commission Annual Report now available

Branch office recently and met with Executive Director Robert Smethurst, Q.C.

The 1993 / 94 Annual Report of the Law Reform Commission of B.C. is now available. The Report outlines the progress made on the various projects that make up its program, the final reports submitted and consultation documents issued. The report also contains a comprehensive list of past Commission publications along with details concerning availability and implementation.

Mr. Xenopoulos provided a copy of the publication Legal Aspects of Doing Business in Cyprus.

B.C. Courthouse Library Society will have a copy of the Annual Report. Copies have also been distributed to the major public libraries in the province. C

Cyprus lawyer visits B.C. Branch Xenios L. Xenopoulos of Nicosia Cyprus visited the B.C.

How to get a copy of the Annual Report: 1. Request a copy from the Law Reform Commission, free of charge, as long as supplies last.

Write, phone or fax: Law Reform Commission of B.C., 203-865 Hornby St., Vancouver V6Z 2G3; phone: 660-2366 or FAX: 6602378.

2. Electronic Access. The full text of the Annual Report has been posted to the Queen's Printer Bulletin Board System (QPBBS) where it is available for downloading in WordPerfect 5.1 format. The file containing the Annual Report 1993 I 94 will be titled LRC135.EXE. This is a self-extracting compressed file.

The QPBBS can be accessed in two different ways: a) Telephone / modemaccess: call 356-0045 (Victoria) or 660-1264 (Vancouver). The QPBBS supports a toll-free call back within the province. Once connection is made, go to the" files" area where a section is reserved for Law Reform Commission documents. b) Internet: If you have access to the Internet, it is also possible to transfer the document via FTP. The address is :

Members interested in reviewing a copy of this publication can contact the B.C. Branch office (687-3404). C

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

Information Paper on Proposed Ministry of the Attorney Legislation: Mandatory Criminal General- Communications Record Checks for Persons Working Branch (387-1751) With Children (Deadline for comment:

August 31, 1994) Summary of public input on the Forest Practices Code

(3 documents)

Ministry of Forests, Public Affairs Branch (387-5255), government agents, and MLA constituency offices

Review of Legal Services to Aboriginal People

Ministry of Attorney General -Communications (356-9596)

Environmental Assessment Kit -

Environmental Assessment Project (Phone: 952-0575; Fax: 952-0589)

bill, draft regulations, newsletter and quick facts Consultation paper on class action legislation

(deadline for comments is July 31) Draft regulations and standards - Forest Practices Code

Ministry of Attorney General, Policy Division (Ruth Rogers- 387-4574) Ministry of Forests -Public Affairs (387-5255)

Several reports have been received by the B.C. Branch from the federal government. These reports have been sent to the appropriate Sections for comment, but copies are available by contacting the sources indicated.

Sentencing Reform Bill

BBS.QP.GOV.BC.CA Log in as ANONYMOUS and use your Email address as the password.

Once you have connected look for Law Reform Commission files in the following path: /GOVTINFO/LRC.

Gord on Parry, Sentencing Project, Department of Justice (613) 957-4720

Proposed amendments to the

Paul Monahan, Minister's Office, Department pf Justice 路 (613) 992-4621

3. Consult a copy at a library.

Most libraries maintained by the

Corrections and Conditional Release Act

Young Offenders Act

Proposed amendments to the

Blaine Harvey, Solicitor General of Canada, (613) 990-2733

15

Your Registry Questions Answered Rule4(2)

Q: What is the proper way to submit a translation of a foreign document for use in court, i.e., French marriage registration?

A: Rule 4(2) states: " ... every document prepared for use in the court shall be in the English language".

We should request an affidavit of the translator with both the document and the translation as exhibits. Without a link between the translation and the document there would not be compliance with Rule 4(2).

In the case of a foreign marriage certificate in divorce matters the original must be filed with a copy attached as an exhibit to the affidavit.

Rule3(4) Rule9(1)

Q: What is the difference between a Notice of Intention to Proceed (Rule 3(4)) and Renewal of a Writ (Rule 9(1))?

A: Where a writ has.been served and no step in the proceeding has been taken for one year, no party can proceed until a Notice of Intention to Proceed is served on all parties of record.

A writ is only in force for 12 months after being issued and must be served within that period. If not served in this time the Writ must be renewed under Rule 9 before service.

Paymentout

Q: Can a cheque be made payable to a solicitor without the client signing a "consent to payment to solicitor"?

A: Unless there is an order specifying otherwise, a client must sign a consent to payment to solicitor. A consent order does not constitute an order for this purpose. In other words, solicitors cannot consent to payment to themselves.

Court Order EtrforcementAct

Q: Should the Registry issue a writ of seizure and sale if there is a garnishing order outstanding?

A: Yes. The recent case of Gervais v. Yewdale (unreported) Vancouver Registry B912046, October 28, 1993, B.C.S.C., changes registry practice in this respect. Mr. Justice Donald concluded that the registry should issue multiple processes of execution, except where it is necessary to refuse to issue execution to prevent an abuse of process. E.g., where the judgment was for a nominal amount and multiple processes of execution were issued. The decision appears to be broad enough to permit Writs of Execution and Garnishing Orders to be issued while other Garnishing Orders or Writs of Execution are outstanding. This is contrary to what

by Joanne Power, Manager, Registrar Programs

is set out at pages 2-102 and 2-236 of the Civil Documents Processing Manual. (The manual is in the process of being rewritten.)

Rule60, 60B

Q: Can a divorce matter and a family relations action be consolidated under a new style of proceedings?

A: We canvassed Master McCallum who has concurred with Master Wilson as to the following: While there are some cases where a consolidation order is appropriate, the proper order under the Divorce Act and Family Relations Act is almost always one that actions or proceedings be "tried at the same time". Where proceedings are consolidated for all purposes there must be one file, a consolidated statement of claim, new statements of defence and so on. ]udidal Review Procedure Act

Q: Is a Judicial Review the same as an appeal?

A:. No. In a recent decision, Lee v. Goa (1992) 65 B.C.L.R. (2d) 294, Thackray, J. noted the distinction at page 297: "Judicial Review is not an appeal. It is a limited review to ensure that correct and fair procedures have been followed. The review does not concern itself with the appropriateness of the result, but looks at the process to ensure that the persons involved have been accorded fair treatment."

EmploymentStatrdardsAct Section 14

Q: Where is an appeal filed from a Certificate of the Director of Employment Standards?

A: In the Supreme Court within 45 days of issuance of the Certificate. Section 14 of the Employment Standards Act: "(1) The director may file in court a certificate issued under section 13,83 or 85.

(2) A filed certificate is enforceable in the same manner as a judgment of the court in favour of the director for the recovery of a debt in the amount set out in the certificate.

(3) An appeal from a certificate of the director lies to the Supreme Court.

(4) No appeal referred to in subsection (3) shall be instituted later than 45 days after the issue of the certificate.

(5) An appeal referred to in subsection (3) shall be a trial de novo.

If you have any interesting or unusual questions, please write directly to Joanne Power, Manager, Registrar Programs, Law Courts, 850 Burdett Ave., Vict01ia V6W 1B5.

16

LPAC and LAPs de-mystified What is an LPAC? What is an LAP? Is LP AC a packing company which packages LAPtops?

Not exactly.

In the late '80s, Art Vertlieb, Dr. Ray Baker and Russ MacKay set up the Lawyers Assistance Program (LAP) in British Columbia.

The program was fashioned on successful LAPs in Oregon and Washington.

The idea was to provide (1) longer term commitment than was available through Interlock (without taking anything away from Interlock's own services) and (2) help fromla wyers who had "been there." Asteeringcommitteewasformed, made up of lawyers, 50% of whom had experienced and recovered from alcohol or drug problems, and 100% who had experienced and continue to experience stress in one form or another. Does anyone not?

At that time, the only real net to catch lawyers who refused to ask for help (although experiencing problems in their law practice through overuse of alcohol or drugs, evidencing deep depression, etc.) was the Law Society Discipline Committee. That net was really a sieve forcing "problem" lawyers out the door and was not helpful in giving lawyers a chance to pull out of their dive before they hit the sieve.

Consequently, LAP aims towards helping those who require help before they reach the complaint stage. The program is completely confidential. Although LAP is funded by the Law Society, LAP does not report to the Law Society.

If you happen to see a colleague in obvious difficulties, be it intoxicated in Court or unable to function because of depression, if your colleague refuses to ask for help, you can help that colleague by phoning 522-1343 or speaking directly to Russ MacKay (6887761/891-0213) or any of the Board of Directors, who are cur-

rently: Dr. Ray Baker, Bob Bellows, Charlotte Gottschau, Bill Hibbard, John Molson, Judge Mario R. Mondin, Don Tuck, Debra Van Ginkle, Art Vertlieb.

We are prepared to do anything to assist, from offering advice to organizing formal interventions.

Shortly after the B.C. LAP was started, an umbrella organization, Legal Profession Assistance Conference (LPAC), was formed under the auspices of the national Canadian Bar Association.

Working on the assumption that stress disability leave is a major portion of insurance payouts to lawyers, it acquired funding from the Canadian Bar Insurance Association (CBIA) and, now, to a lesser extent, the CBA. Its function is to encourage and assist in the setting up of LAPs in each province and in the Territories, to formulate a wellness program for lawyers, and to keep a channel open for the flowing of ideas between the various LAPs. B.C. LAP was formed earlier and had already developed or was in the process of developing the following initiatives: • it had already designed and made a promotional video; • it was setting up stress programs for men and women; • it encouraged the UBC law students to set up their own selfhelp (LSSN); and,

• it has set up a fund to give interest free loans to lawyers who require assistance while they are away from their practice in treatment.

B.C. LAP was happy to share its experiences with LPAC and to assist in developing LAPs in other provinces.

If you are outin the country some-

where beyond Greater Vancouver, LAP most likely has a volunteer (regional representative) lawyer in your area. We have _80 volunteers spread throughoutthe province.

If you want to find out who represents LAP in your area, just call our Vancouver number (5221343/891-0213) and leave amessage. And, there is one other number to call if you lose the LAP numbers and that is the LP AC toll-free line (1-800-667-LPAC).

LP A C will refer you to the appro priate LAP.

From August 19 to August 21, 1994, the weekend before the CBA national conference in Toronto, LPAC is holding its own yearly conference in Toronto. Topics of immediate concern to everyone include various methods of reducing stress with or without the separate stress of exercise. If you wishtoattend the weekend LPAC conference, or a portion of it, contact Charlotte R. Gottschau (6871721) B.C. LAP liaison on the LP AC Board. C

Official Administrator announcement Myrna Hall, Public Trustee and Official Administrator for the Province of B.C., announces that effective June 1, 1994, Estate Administration services for the Vancouver region will be provided by: The Office of the Public Trustee Estate Administration Department #600- 800 West Hastings Street Vancouver, B.C. V6C 3L3 A.A. Boivin, Vancouver Regional Manager Tel: 660-0966 FAX: 660-0964 The Public Trustee, as Official Administrator, administers the estates of people who die without a will and without heirs willing and able to administer their estates. The Vancouver region includes Richmond, North and West Vancouver, Squamish. Whistler, Alta Lake, Pemberton, Sunshine Coast and Powell River. [J

17

Law Day celebrations involve members in a variety of activities Over twenty locations in British Columbia hosted a wide variety of Law Day activities including open houses at various court locations, lawyer's visits to classroom, an audio-conference, student mock trials and the provincial poster, essay and public speaking contests. Lawyers dressed up as "fairy tale" characters and participated in demonstration mock trials.

lawyer for a half or full day to see what happens in a typical lawyer-day.

The B.C. Branch sincerely thanks Tim Delaney of Lindsay Kenney, Law Day '94 Planning Committee Chair, the members of the Law Day Planning Committee, the local Law Day organizers and the thousands of volunteers who make the British Columbia Law Day activities so successful.

Sheldon Seigel of Victoria tells of his "Dial-A -Lawyer" experience during Law Day '94.

Two new programs were expanded this year. The Student/ Lawyer Mentor Program provided some 80 students with the opportunity to "shadow" a

IBA meets in Australia The 25th Biennial Conference of the International Bar Association will be held in Melbourne, Australia on October 9 to 14, 1994.

Sessions will be presented by the 56 Committees and Sections of the IBA and will feature world renowned speakers. Topics include legal liability arising from sexual harassment in the workplace; regulation of travel promotions; legal skills for the next century; pre-publication restraints and injunctions; and continuing judicial education.

Special general interest sessions will also be held on topics such as: stresses on lawyers and their partners; celebrity trials and the role of the media; the law and religion in multi-cultural societies; and lawyers leaving the law.

For further infonnation, contact:

International Bar Association 2 Harewood Place Hanover Square London W1R 9HB, England Tel: +44 (0) 629-1206 FAX: +44 (0) 71 409-0456

The "Dial-A-Lawyer'' program was expanded so that callers could phone lawyers in Vancouver, Surrey, Campbell River, Prince George and Kelowna and receive a free 15-minute telephone consultation.

Who yougonna call?

As a member of the Victoria Bar Association I felt somewhat obligated to participate in Law Day '94 particularly since I had contributed absolutely nothing to the planning of two golf tournaments, a baseball afternoon and various bar / bench dinners.

So it was on April 23rd that I answered the call (or calls) of duty.

The first call came from a man who alleged that his veterinarian had intentionally killed his dog. Apparently this vet was known to dislike dogs altogether and the dog wasn't even sick!

Fortunately, I immediately recognized the veterinarian as my own and therefore due to a potential perceived bias, was unable to give any advice whatsoever. The tenor of the day, however, had been established: The next three calls included a "Will" question from a caller who claimed to already be dead, a woman who clearly indicated to me (in English) that she needed a lawyer who spoke Polish as that was the only language in which she was conversant, and a fellow who didn't know quite what to do with his $7,000 worth of parking tickets (he had already paid $5,000 in fines this year)!

These were followed by the man who had bow thrusters installed in "far too small a boat" by a marina that was happy to

do the installation but "didn't want to get involved" when it came time to put the vessel back in the water!

Two more Wills questions. A family law referral. Then this: "Oh, you're a personal injury lawyer ... great! Listen, I want to sue my mother. She lent me her cat and I tripped over it.

Broke my ankle. I know she is my mother but it was her cat."

The next fellow to call was unhappy to say that a total stranger to whom he lent "a whole pile of money" to buy a tug boat, actually bought the boat and "chugged off into the sunset." Imagine his surprise!

Another Will question. Then a brief family law matter ("can one person get a divorce if her spouse won't co-operate?) and then my favourite call.

It seems that an elderly gentle-

man in Sooke "broke" the foundation on his neighbour's house while doing a little gardening.

The neighbour in question lived 10 lots down. I suppose he overestimated the size of his tulip bulbs and used too much C.I.L. This is one man I would prefer not to go fishing with, thank you very much.

I then received a call, the transcript of which would read very much like James Joyce.

After several minutes of intense concentration, it struck me that he may have called the wrong number.

Two more Will questions and then a real estate query concern involving reversionary interests and (perhaps in my imagination only) the rule of perpetuities. I was so surprised by the question that I blurted out, "why do you want to know? This sounds like a law school exam."

"Well ... umm ... it is." He said, "I'm studying for finals, and I just don't know the answer.

Who you gonna call." [J

18

CBA's insurance plans provide benefits for B.C. Branch members bar none The Canadian Bar Insurance Association offers many impressive benefits to CBA members in British Columbia as well as members across Canada through Canada Life Casualty.

With offices in Vancouver, Calgary, Toronto, Montreal, and Halifax, Canada Life Casualty provides CBA members with regional service and insurance with a national understanding of the trends in the legal profession. For example, CBIA arranged for Canada Life Casualty to add Umbrella Liability to its product line in response to the growing demand for enhanced liability protection.

Coverage Check Plus:

In 1994, the CBA's Home Insurance Plan offered members Coverage Check Plus, a policy designed to protect luxury homes.

It contains many coverage enhancements including $10,000 coverage for business property, automatic insurance on new"special" items, and a complimentary home evaluation.

Discounts including those for members over 55:

Other benefits, apart from the group rates, include a 10% discount for members aged 55 and over, a 10% monitored alarm discount for homeowners, a 10% discount for homes less than 10 years old and up to 15% claims free discount.

Flexible payment options:

Canada Life Casualty offers flexible payment options. Members can spread their payments throughout one year or pay in an annual lump sum. For convenience, payments can be automatically transferred from your bank account.

Easy access:

Members are assured easy access to Canada Life Casualty with an 800 number and emergency 24 hour claims service.

For information on the CBA Home Insurance Plan, its options or policies, or if you would like a quotation, have your membership number ready and call Canada Life Casualty at 1-800-6637778 (in Vancouvercall682-1858).

Budget Rent a Car offers new rate program Effective July 1, 1994, Budget Rent a Car will offer CBA members a new rate program. Budget remains the exclusive car rental company for CBA members and the CBA membership card is honoured worldwide. Rates include unlimited kilometres I mileage at all participating locations. Some surcharges may apply. Budget offers a Sales Service number to call for any type of assistance or question concerning participating locations. Calll-800-268-8941 to access Sales Service.

Rates: Canada Economy: Compact: Intermediate: Full Size:

$39 $40 $41 $42

United States (US$- subject to change): $35 Economy: Compact: $36 Intermediate: $37 Full Size: $381$39

Ask Budget about these other features: • "Express Service" and how · to get a free Rapid Action card • Specialty vehicles such as station wagons and sports cars • One-way rentals (rates revert to time and kilo I mileage and drop charges may be calculated)

B.C. Branch Member Services assist your bottom line!

• Truck rental discount (regular time and mileage rates are discounted by 15%) •

Aeroplan program

• Hotel Program (50% dis counts from October to April)

Park'N Fly leads the way Park'N Fly is pleased to announce fromJune 1 toDecember31, 1994, Air Canada and Air Canada Connector passengers will receive 750 Aeroplan miles each time they park at Park'N Fly. There is no minimum stay requirement.

The next time you use Park'N Fly, ask about the popular Can tel phone program that could bring you an extra 5000 Aeroplanmiles!

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

598-2860 SectionTalk Editar: Shelley Bentley, LL.B. Alistair Eagle Photography (688-8867) is the CBA (B.C.

Branch) official photographer. ©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 legismtion, initiate Uiw 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, ethical standards and well-being of members of the legal profession and promotes the interests of its members. C