BarTalk | January 1993

NEWSLETTER First annual Distinguished OFTHE .

CANADIAN BAR ~lee C. _R?bertson, Q.C., ts the ASSOCIATION, ftrst rectptent of the Georg_es _A. B.C. BRANCH Go_yer, Q.C., ~ward for Dtstm-

Service Award presented to Alec Robertson

gutshed Sennce.

B.C. Branch President Rob Gourlay presented the award to Robertson at the annual Bench and Bar Dinner held jointly Jan. 1993 with the Law Society of B.C. on Nov. 19, 1992 at the Law Courts Inn in the Vancouver Law Courts.

The B.C. Branch Georges A .

Goyer, Q.C., Award for Distinguished Service has been created to recognize the exceptional contribution and / or achievements by any resident of B.C. to Volume 5 the legal profession in B.C.; or Number 1 to jurisprudence in B.C. or Canada; or to the law or development of the law in B.C.; or to a significant law-related benefit to the residents of B.C. .

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B.C. Branch President Rob Gourlay (right) presents Alec Robertson with the first annual Georges A . Goyer, Q.C., Award for Distinguished Service. The glass sculpture was specially designed for the B.C. Branch by Portfolio West.

SectionTalk .......................... 3 President's Message .......... 5 Plain Talk ............................... 7 Registry Questions ............. 8 Council Highlights ....... 10-11 Member Services .............. 12 (

Ke lowna Convention ........ 13 Law Week '93 ....................... 5

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Leg islative Update ....... 15-19

Notice of Special Meeting A special meeting of the British Columbia Branch of the Canadian Bar Association will be held on Thursday, March 25, 1993 at 2:00p.m. at the Grand Okanagan Resort and Hotel, 1310 Water Street, Kelowna, B.C. V1Y 9P3 .

The special meeting is being called in order to amend the B.C. Branch By-Laws so that the date of the Branch Annual Meeting can be changed without affecting the Branch election

of Provincial Council and officers.

The Executive Committee has approved in principle to move the date of the Branch Annual Meeting from June to September or October in each year.

The enclosed Notice of Special Meeting provides complete details of the advantages of this change and the recommended changes to the Canadian Bar Association (B.C. Branch) ByLaws. D

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Members making a difference: Young Lawyers (Victoria) On Saturday, Nov. 7, 1992, members of the Young Lawyers (Victoria) Section descended on the Esquimalt Neighbourhood House to scrub it clean for all its various clients.

The Esquimalt Neighbourhood House is a non-profit community resource centre which provides a number of services including nutritional counselling for pregnant mothers, child care resources, a toy library, clothing exchange, job skills, and a safe home project.

The Young Lawyers (Victoria) Section was helping out at the Esquimalt Neighbourhood House as part of a charitable community project initiative designed to help show the community that lawyers are people too, and also to help young lawyers become involved in their community. The "spring cleaning" was very well received, both by those that were helped, and by those that did the helping. As a result, the Young

Award (continued from page 1) Nominations were received and adjudicated by a Committee chaired by B.C. Branch President Rob Gourlay with committee members including John Waddell, chair of the B.C. Branch Communications Committee, and Trudi Brown, chair of the Continuing Legal Education Society. While many worthy recipient's names were forwarded for consideration, the Committee agreed to present the award to Robertson for 1992.

"Alec Robertson has served the legal profession with energy and diligence and sets an exemplary standard for recipients of this annual award," said Gourlay. Robertson was called to the Bar in 1958 and is a senior

Young Lawyers (Victoria) on the look out for other cha~itable projects to ta_ke on!

(From left to right) Christine Owen~ Margaret Sasges~ J1ll Turner, Penny L1~sack, Janine Paterson, Kash Basi, Greg N1elsen, Colleen Sm1th, John Adams and fnends .

Lawyers (Victoria) Section will continue to be on the look out for other charitable projects to take on.IJ

Help us identify those CBA members "making a difference"

either professionally or personally. Volunteer work to the community, outstanding service to a board or non-profit organization or simply a local "hero or heroine." FAX your suggestion to CBA Communications Director Larry Hnetka at 669-9601. [J

partner with Davis and Company. He was elected President of the Vancouver Bar Association in 1973 and later served as President of the CBA (B.C. Branch) in 1985. Robertson was a governor of the Law Foundation of B.C. and served as the Foundation's chairman in 1990/91.

Alec presently is a member of the National CBA's "Gender Bias Committee" under the chairmanship of Bertha Wilson.

Committee, chairperson of the Criminal Justice (Vancouver) Section, elected member of the B.C. Branch and National CBA Councils and Executive Committees, member of the B.C. Branch and Law Society Communications Committees, board member of the Canadian Bar Insurance Association, and former assistant professor I director of the UBC Legal Clinic, Faculty of Law.

"I am pleased to announce that this annual award has been dedicated to Georges A. Goyer, Q.C., who died on November 5 after a courageous battle with cancer," added Gourlay.

"Georges' contributions to the Bar were significant and wideranging," said Gourlay. Goyer was a former chairperson of the National Legal Aid Liaison

"This Distinguished Service A ward both honours Georges' memory as well as recognizes the important volunteer service he provided to the Bar," said Gourlay.

Suggest a mem~er to be profiled in BarTalk!

1993 Award nomination forms can be obtained from Larry Hnetka, B.C. Branch Communications Director (Tel: 6873404).1J

wound all the way up provides the necessary pressure in a car window. Porcelain from bathroom fixtures does not work, and neither do porcelain chips against plate glass.

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Shelley Bentley

Spark plug porcelain used as break-in instruments Detective Byron Ferguson, an identification/ forensic officer with Port Moody Police, made a major breakthrough in police forensic work with his discovery of illegal uses for porcelain chips. He told New Westminster Criminal Justice Section members that three or four years ago, police began to notice that some of the people they had arrested were carrying chips of spark plug porcelain.

The chips were routinely discarded until Detective Ferguson asked one young offender how he had broken into a car he had stole. Det. Ferguson learned that a porcelain chip cracked against the closed window of a car would break the window.

Following this discovery, police began to lay charges of possession of break-in instruments against people found in possession of the chips. The use of porcelain chips for nefarious purposes is peculiar to B.C., so far.

Usually a chip is attached to a wire and flicked against a window. The chip, which is almost as hard as a diamond, canalmost noiselessly shatter tempered safety glass provided the glass is under pressure. Being

Detective Ferguson has experimented with different sized chips and found that the smallest effective piece is the size of a fingernail. While a whole spark plug is not used, possession of an intact sparkplug can still lead to a charge of possession of a break-in instrument. The charge as it involves porcelain chips was first tried in Coquitlam Provincial Court, and also in Matsqui, Delta and Victoria.

It has also been dealt with at the County Court level in the Province.

Det. Ferguson is starting to get inquiries from other jurisdictions, including Alberta and California. In L.A., apparently, gangs are beginning to custommake the chips.

Estate planning advice for family law clients Elaine Reynolds considered the estate planning options available for a family law client in a recent Vancouver Family Law Section meeting. She advised that family law practitioners ought to consider revoking a client's will immediately upon marriage breakdown and referred to sections 14, 15 and 16 of the Wills Act where the methods of revoking a will are enumerated. Those methods include destroying the will, drafting a new will and executing a deed of revocation, which evokes a current will but is not in itself a will. She also noted that upon divorce, annulment or judicial separation any bequest in the will to the spouse is revoked. If the spouse has been

appointed an executor/ execu~ trix that portion of the will is revoked. However, all other provisions in the will remain.

Ms. Reynolds then reviewed Part 7 of the Estate Administration Act dealing with intestate succession particularly focusing on section 111 which deals with a separated spouse who may bring a claim against his or her separated spouse's estate if he or she has not been separated for more than one year. She also noted that family law practitioners ought to consider having one's client die intestate if there is a desire to keep the spouse's claim against the estate to a minimum. The reason why the claim will be minimal is because the intestate succession provisions only give a certain amount to a surviving spouse and where there is no will there will not be a possibility of a Wills Variation Act claim.

If the client is separated and has no will it may also be useful to create evidence at that time to support the fact of separation with the requisite intent toremain separated. Evidence might include an affidavit or a letter. You will then also have to consider the admissibility of the evidence. The provisions of the Estate Administration Act can be waived in a marriage agreement or separation agreement unlike provisions of the Wills Variation Act which cannot be waived.

Environmental hazards discussed in context of real estate law John Wiens, Head of the Contaminated Sites Unit, Industrial Waste and Hazardous Contaminants Branch, Ministry of the Environment and Waldemar Braul, lawyer and consultant

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SectionTalk (continued) for Legislative Changes to the Ministry addressed the Victoria Real Property Section on environmental hazards in the context of property law.

The speakers noted that the scope of contamination from past practices is just now becoming known. Burials, spills and generally outdated practices have left a legacy of contamination. The most common "problem properties" in B.C. are underground storage (gas stations), bulk storage sites, scrap yards, saw mills and wood treatment sites. The largest single industrial group of problem properties is old gas stations. Manufacturing and distribution of paints, solvents, pesticides and other goods are less common causes of contamination.

There is much less certainty in the marketplace as to what the courts will do in vendor /purchaser disputes, with the trend away from caveat emptor: it is probably closer to both buyer and seller beware.

Vendor disclosure rules have been enacted in the U.S. In Canada the courts seem to be increasingly willing to deem "common knowledge." For instance, in ]ung et al v. Ip et al(1988) 47 R. P.R. 113 (Ont. D.C.) it was found that a realtor should have had knowledge of the history of termite infestation of an area when that knowledge was commonly held in the community. Hence we may see an increase in the number of cases where liability is found to exist.

Existing legislation proscribes only very severe contaminants.

There is a "Criteria for Managing Contaminated Sites in B.C.". used by regulators but it is not legally binding. To fill the gap, some municipalities are developing policies, Vancouver being amongst the most progressive.

In the area of criminal sanctions there is no pollution case yet iri B.C. where corporate veil has been pierced. Criminal prosecutions are rare, although disobeying of a Waste Management Act Section 22 "Pollution Abatement Order" could lead to criminal prosecution. Fraud has been expanded to include "callous disregard."

Fearing the U.S. trend towards including commercial lenders among those with "management and control", environmental audits are becoming a standard requirement of commercial lenders who fear a Waste Management Act Section 22 "Pollution Abatement Order." There is no stated exemption for lenders in B.C. While the Ministry maintains a data base of consultants, there is no provision for certifying or rating pollution consultants, and the Ministry will not make any recommendations. When buyers purchase "subject to a clean bill of health from the Ministry" the most the Ministry can do is report that there are no complaints on record and no outstanding orders.

There are treatments for hydrocarbon/ petroleum contamination, such a "bio-remedial" (i.e.,. composting) processes that are suitable for on-site treatment. Large scale problems and more difficult and persistent contaminants such as furans and P.C.B.'s currently have no treatment solution other than storage. There is still no high temperature incinerator in B.C. Currently a Land Title Act section 215 Restrictive Covenant is used for interim or long term management: A Land Title Act Section 320.1 registered notice is used more narrowly.

In the area of law reform, revisions to the Waste Management Act are expected as well as reg-

ulatory change, and a trend towards more comprehensive legislation beyond the "end of pipe" mentality. The present government has promised a new environmental protection act. It is expected to have a wider scope with possibly some codification of the common law, more reporting and disclosure clear liability principles exemptions and defences and possibly a new registry. C

IBA Section meets in New Orleans in October '93 The International Bar Association (IBA) Section on Business Law (SBL) will hold its 11th Biennial Conference concurrently with the 7th Biennial Conference of the Section on General Practice in New Orleans from Oct. 10-15,1993.

The IBA expects more than 2,000 lawyers to attend. As in previous years, the SBL will award scholarships to a selected number of young lawyers from the region in which the Conference is to be held.

Anyone interested in receiving a list of upcoming IBA seminars or a scholarship application form, can contact Bonita Thompson at Singleton Urquhart Macdonald (tel: 6822474).0

Oops, we goofed ...

The October /November BarTalk issue should have been identified as Volume 4 Number 7. Thanks to the UBC Law Library for pointing this out to us so promptly! C

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President's Messagg_

Satisfaction in day-to-day work is not always obvious A man can stand almost anything, except a succession of ordinary days -Goethe

For most lawyers, there are not a lot of ordinary days and that is one of the attractions of the law as a career. We are regularly faced with new problems to resolve and new challenges to meet.

But along with all of that can come a great deal of frustration as we try to satisfy the demands of clients, fulfill our professional responsibilities, manage a practice and make a living at the same time. And whether we spend our days settling estates, drafting contracts, or appearing before the Court of Appeal, there is inevitably a certain amount of drudgery to any kind of practice. Reviewing lists of documents is one such task that springs quickly to mind.

We read much about lawyers' dissatisfaction with the profession and we see each year a hundred or so B.C. lawyers declining to renew their practice certificates. I don't know whether some of these people are leaving because of frustration, or boredom, or simply because they've found something better to do with their lives.

I think that sometimes we have to remind ourselves to look for the satisfactions that can be found in our day-to-day work.

They are not always obvious, to ourselves or to others. We don't produce anything tangible that others can look on and admire. Our clients' gratitude for our efforts is often lacking, or short-lived .

Yet, our profession can sometimes be one of the most gratifying of occupations andunquestionably is critical to the civilized functioning of our society.

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I was reminded of this over the holidays while reading Theodore Roosevelt's accounts of his days as a not-altogether-successful cattle rancher in the Badlands of North Dakota. 1 He tells stories of those early times, before "the American instinct for law" had had the opportunity to assert itself and each individual was obliged to be "a law unto himself and to guard his rights with a strong hand". I thought I would share one of his tales with you as a reminder for anyone who needs it that we do, most days, make a difference. This one begins with Roosevelt and a pal he described as "a true backwood Donatello", out on a hunting trip.

I noticed that he had a scar on one side of his foot, and asked him how he got it. To my question he responded, with indifference: "Oh, that?

Why a man shootin' at me to make me dance, that was all."

I expressed some curiosity in the matter, and he went on: Well, the way of it was this.

It was when I was keepin' a saloon in New Mexico, and there was a man there by the name of Fowler, and there was a reward on him of three thousand dollars-" "Put on him by the State?" interrupted.

"No; put on by his wife," said my friend; "and there was this-" "Hold on," I interrupted; "put on by his wife did you say?"

"Yes; by his wife. Him and her had been keepin' a faro bank, you see, and they quarreled about it, so she just put a reward on him, and so--" "Excuse me," I said, "but do

Roosevelt, Ranch Life in the Far West, Vista Books, Dillon, Co., 1991

B.C. Branch President Rob Gourlay

you mean to say that this reward was put on publicly?" to which my friend answered, with an air of gentlemanly irritation at being interrupted to gratify my thirst for irrelevant detail: "Oh no; not publicly. She had just mentioned it to six or eight intimate personal friends."

"Go on," I responded, somewhat overcome by this instance of the primitive simplicity with which New Mexican matrimonial disputes were managed; and he continued: "Well, two men come ridin' into see me, to borrow my guns. My guns was Colt's self-cockers. It was a new thing then and they was the only ones in town. They come to me, and, 'Simpson,' says they, 'we want to borrow your guns; we are goin' to kill Fowler.'

"Hold on for a moment,' said I; 'I am willin' to lend you them guns, but I ain't going to know what you're goin' to do with them. No, sir; but of course you can have them guns." Here my friend's face brightened pleasantly and he continued:

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Poverty law, lesbian &gay rights Sections formed Two applications to form new B.C. Branch sections were approved at the Dec. 5 Provincial Council meeting. The Poverty Law Section will provide poverty law practitioners with a forum for improving knowledge, exchanging information, engaging in law reform and participating generally in the activities of the CBA. Poverty Law Section Chair John Simpson indicates that "poverty law" is broadly defined as the practice of law for people living below the poverty level. The Section will focus on topics such as residential tenancy, income assistance, disability pen- 路 sions, Workers' Compensation, UIC, consumer bankruptcy and

President's Message (continued from page 5)

"Well, you may easily believe I felt surprised the next day when Fowler came ridin' in, and, says he, 'Simpson, here's your guns.' He had shot them two men! 'Well, Fowler,' says I, 'if I had known them men was after you, I'd never have let them have them guns nohow/ says I. That wasn't true but there was no cause to tell him that." I murmured my approval of such prudence, and Simpson continued, his eyes gradually brightening with the light of agreeable reminiscence: "Well, they up and they took Fowler before the justice of the peace. The justice of the peace was a Turk."

"Now Simpson, what do you mean by that?" I interrupted.

"Welt he came from Turkey," said Simpson; and I again sank back, wondering briefly what particular varietyof Mediterranean outcast

debtors' rights. Registration in the Section will also be of interest to lawyers in government, publicly funded agencies, academics and law students.

The Lesbian and Gay Rights Section interim co-chairs are Gwen Brodsky of the B.C. Public Interest Advocacy Centre and Don Casswell, Associate Dean of Law at the University of Victoria.

As there is a growing body of case law, legislation and policy that impacts directly on lesbians and gay men, this new section will focus on legal issues concerning lesbians and gay men. At the first meeting of the Section, officers will be elected had drifted down to New Mexico to be made a justice of the peace. Simpson laughed, and continued: "That Fowler was a funny fellow. The Turk he committed Fowler and Fowler he riz up and knocked him down, and tramped all over him, and made him let him go."

"That was an appeal to a higher law," I observed.

Simpson assented cheerily, and continued: "Well, that Turk he got nervous for fear Fowler he was goin' to kill him, and so he comes to me and offers me twenty-five dollars a day to protect him from Fowler; and I went to Fowler, and, 'Fowler,' says I, 'that Turk's offered me twenty-five dollars a day to protect him from you. Now I ain't goin' to get shot for no twenty-five dollars a day, and if you are goin' to kill the Turk, just say so, and go do it; but if you ain't goin' to kill the Turk, there's no reason why I shouldn't earn that twenty-

and the agenda set for the remainder of the program year tb June 1993. The Section's agenda may include the following topics: proposed amendments to the Canadian Human Rights Act, the B.C. Human Rights Council, gender bias in the legal profession, immigration, spousal and family benefits, property rights within lesbian and gay families, and acting for HIV seropositive clients.

An enrollment forms for these two new sections is enclosed with this issue of BarTalk. For information regarding Section enrollment, contact Fran Hodgkins at the B.C. Branch (tel: 6873404). D

five dollars a day.'

And Fowler, says he, I ain't goin' to touch the Turk; you just go right ahead and protect him."

So Simpson "protected" the Turk from the imaginary danger of Fowler for about a week, at twenty-five dollars a day. Then one evening he happened to go out, and met Fowler. "And," said he, "the moment I saw him I knowed he felt mean, for he begun to shoot at my feet" which certainly did seem to offer presumptive evidence of meanness. Simpson continued: "I didn't have no gun, so I just had to stand there and take it until something distracted his attention, and I went off home to get my gun and kill him.

In the result, Simpson enlisted the support of the Turk and the Judge- interrupting their poker game - and other prominent citizens of the town and all marched into the jail where Fowler had already been taken, and they hanged him. D

Clear Contracts

by Janice Mucalov

CLE Plain Language Project

Separation Agreement This Separation Agreement is made September 9th, 1992.

Between: Kenneth Black and Loretta Black

(the husband) (the wife)

Background: (a) Th e husband and wife were marri ed in Vancouver on June 6th, 1986 (b) TI1e parties have agreed to Live separate and apart .

The parties agree:

A chronological order works best for documents like loan and security agreements. Divide them into pre-contract and postcontract provisions. Precontract provisions include the loan amount, security, interest rate and repayment dates. Postcontract provisions include the consequences of default.

Try also to put closely related provisions near each other to eliminate annoying and disruptive cross references.

Parties People hated the Roman tyrant Caligula for inscribing his laws upon pillars so high they could not read them. Today, some contracts have the same effect.

Important clauses are buried at the back of long, murky documents. Yet knowing how to organize and design your contracts can make them much easier to read and understand.

Organization Two ways to organize a contract are by party and by topic. Detailing the rights and duties of first one party and then the other works well to govern relationships between parties over a period of time, for example, in landlord and tenant agreements or labour agreements. Organizing by topic works well for performance contracts like agreements to build a house or to stage an event.

Next, arrange clauses so the order is logical to your readers.

In some documents, that means putting the most important clauses first. In a lease, these are the parties, property, term, rent amount and rent payment dates .

Termination provisions and the tenant's other obligations are less important.

Many conventional contracts start with a fragmented clause:

Agreement made and entered into this __ day of-' 1993 by and between jane Roe and john Doe. Contemporary drafters use a complete sentence, for example: jane Roe and john Doe make this agreement on-' 1993 .

They enclose the short form of the party's name in brackets: fohn Doe (Doe) without adding "hereinafter referred to as ... ".

Preamble In simple contracts where mutual promises are exchanged, avoid wordy recitations of consideration such as:

In consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually agree with the other as follows : Prefer instead : The parties agree:

Definitions A separate definition section is

appropriate for long contracts.

Consider putting the definition section at the end so you can begin with the body (which is what your readers are most interested in). In short contracts, define the term where it first appears.

Headings Headings help organize your material and serve as a useful outline, especially if compiled in a table of contents. To be meaningful, don't use generic headings like Introduction. Short sentences make good headings as do questions. Make your headings and sub-headings parallel, for example: What does your policy cover?

Life insurance Accidental death insurance Disability insurance What benefits does your policy

provide?

Readers' Corner Jack R. Cunningham, Q.C. of Campney & Murphy showed us how he rewrote these standard clauses: Before

After

In Witness Whereof, we have subscribed these presents at .. .

Signed at .. .

In the matter in controversy existing between ...

In the dispute between .. .

Fax 669-9260 if you have a writing challenge for us.

PlainTalk is jointly sponsored by the CLE Plain Language Project and The Plain Language Institute ofB.C. The Project teaches B.C. lawyers plain language writing skills and converts legal precedents to plain language. The Institute promotes plain language in the broader context of government, business and the legal community. It also funds this column.

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Registry questions answered

by Joanne Power, Manager Regtstrar Program Q How do you deal with a Committeeship Bond, when presented pursuant to the Patients Property Act?

A a) Approve bond; either by endorsing the bond on Order: "BOND APPROVED" "I. Power" D/Registrar b) Send the original along with a copy of the entered Order to the Public Trustee; c) Return a copy of the Bond and Order for your file with confirmation that the Bond was sent to the Public Trustee's Office.

Q Do we require backing sheets on

documents filed in Supreme Court?

A No, although if counsel do not provide backing sheets they must put their address and phone numbers on the face of the document or at the end of the document.

Q How do the parties, or Counsel make an application before the Registrar; prior to the appointment date? e.g.,app lication for an ad joumment.

A Options: 1) Praecipe requesting adjournment etc., with service on the other side. Set down usually at 9:00a.m. before the Registrar; 2) Speak to adjournment, etc., before the Master in Chambers by way of Notice of Motion and Affidavit; 3) Request the Registrar to Order a Pre-Hearing Conference pursuant to Rule 32(11). This could be requested by letter directed to the Registrar.

Q What disbursements can be claimed directly on a Garnishing Order?

A All disbursements that are reasonable and necessary to produce and issue the Garnishing Order and, if required by the Registrar, proven by receipt.

Q Who can appear as agent for a Barrister and Solicitor in Court?

A Legal Profession Act, Section 26.

1) Subject to subsections (3), (4) and (5), no person, other than a

member of the society in good standing, shall engage in the practice of law, except (a) an individual acting on his own behalf in a proceeding to which he is a party, (b) as permitted by the Court Agent

Act; (c) articled students, to the extent permitted by the benchers, and (d) an individual or articled student referred to in section 9 of the

Legal Services Society Act .

Q What documents will be accepted by fax?

A Appearance only, pursuant to Rule 14 (l)(e). N.B. the Court of Appeal allows greater use a fax filing.

Q Can a Judgment Creditor issue a Writ of Seizure and Sale pursuant to a Judgment registered from a reciprocating state?

order, no sale or disposition of property shall be made until one month after the judgment debtor has had notice of the registration. The Registrar issuing the execution proceedings should require proof of service

by Affidavit.

Q Where is an Appeal from Employment Standards Act filed, and what is the cost?

A An Appeal opens a new file in Supreme Court, which should refer to the initial Certificate file number, and the fee is $100.

Q If an Appearance filed in time

was lost or misfiled inadvertently

by Registry staff and a Judgment in Default of an Appearance was granted, what should the District Registrar do?

A Ad vise both counsel of the error in writing. The sensible procedure is

A If the foreign judgment was required in B.C. pursuant to an ex parte

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Corrections to 1993 Directory Please make the following corrections to your 1993 B.C. Lawyers, Telephone, FAX and Services Directory:

Campney &Murphy at new location OOPS! We did not list Campney & Murphy's new address in the 1993 Directory. However, the main telephone/FAX numbers are correct as are the individual direct line telephone numbers for each Campney & Murphy lawyer listed.

Please refer to page 123 and insert the law firm's correct address as follows: Campney & Murphy PO Box 48800,2100-1111 West Georgia St Vancouver, BC V7X 1K9

688-8022 F:688-0829

When referring to individual alphabetical lawyer's listing, please note that each Campney & Murphy lawyer also will indicate an incorrect firm address. Please amend all Campney & Murphy lawyer's alphabetical listing addresses as noted above.

Where is Western Pacific Security Group?

On Page 384, gremlins crept into the advertisement for Western Pacific Security Group and omitted the ''Western Pacific" in the advertisement. Please add this correction to your Directory.

Can't reach the Kelowna Supreme Court?

On page 45 (Court Services), the incorrect telephone number was given for the Kelowna Supreme Court. The telephone number should read 861-7260 (FAX: 861-7586).

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Registry questions answered (continued trom page a) for counsel to file a Consent Order setting aside the Default Judgment.

In the absence of a consent, either party can apply to Court.

Q Does a Petitioner proceeding in a divorce action which was filed over a year ago have to file a Notice of Intention to proceed?

A No, unless an Appearance, Answer or Answer and Counter-Petition has been filed. See Rule 3(4)(a) "parties of record ."

Q A lawyer recently wrote to the Victoria Registry advising us we had Hied an incomplete Certificate of Fitness and was of the opinion we should not have accepted same.

A Myreplytothelawyerwas: "Registry personnel should not take it upon themselves to reject documents signed by a solicitor." Your remedy is clearly set out in Rule 2(1).

Q What authority precludes a Registrar from settling a Consent Order?

A Set out in Rule 41(15): "No Consent Order shall be entered until the consent of each party affected is significant." This was strictly interpreted by Madam Justice Huddart, who declined to accept a Consent Order settled by a Registrar.

Q Where is the authority for the Registrar to require a translation of Birth Registrations or Marriage Registrations? (We have had counsel who argue that Rule 4(2) only deals with documents "prepared for use

in Court.")

A Birth Registrations and Marriage Registrations need to be translated pursuant to Rule 4(2) as they are required for use in Court pursuant to Rule 10(2) .

Q How is a review of an assessment brought before the Court?

A A review of an assessment is properly brought by way of Notice of Motion under Rule 57(33) not by way of Notice of Appeal under Rule 53(16). "Xerox Canada Inc . v. Sweany (1990) C.P.C (2d) 101 at 102 (S.C.)" Q Can money paid into Court pursuant to a Garnishing Order, be paid out prior to Judgment with the consent of the Defendant?

A Yes, Section (15(3) of the Court Order Enforcement Act. "Money paid into Court under garnishing proceedings may be paid out to a plaintiff or his solicitor without any order of the Court where there is filed with the Registrar or Judge the consent in writing to the payment out, setting forth the exact amount to be paid out, of the defendant."

Q What is the proper way to bring an Appeal from a Registrar's review of a Solicitor's bill?

A. File a Notice of Appeal in Form 61

within fourteen (14) days of the date the Certificate of the Registrar was filed. (Legal Profession Act Section 72) Section 72 provides and increased scope of appeal from a decision of the Registrar . The impact of this new

provision was described clearly by Paris, J. in Shafer and West v. Berge & Company, 7C.P.C. (3d) 43. The Court found Section 72 as amended confers a true right of Appeal from the decision of the Registrar on a review of a Solicitor's bill. Findings of fact may now be challenged on appeal although Paris, J. says at page 46 "a Court of Appeal is careful not to lightly change findings of fact".

Q Can you issue a Garnishing Order Before Judgment for damages?

A No, only for a liquidated claim.

Please err on the side of caution before issuing a Garnishing Order.

Where the Registrar is unsure about the nature of the cause of action the rna tter should be referred to a Master or a Judge.

"A liquidated claim is one which can 路 be ascertained bycalculationorfixed by any scale of charges or other positive data . But when the amount to be recovered depends upon the circumstances of the case and is fixed by opinion or by assessment or by what might be judged reasonable, the claim is unliquidated." [Pacific Blasting, Deinolitiqn & Shoring Led. v.

Skeena Cellulose Inc . Jaemar Construction Co. Ltd ., and Peter William Jmaeff; Jaemar Construction Co. Ltd. (Third Party) 68 B.C.L.R. (2d) 14)

If you have any unusual or interesting questions, please write directly to Joanne Power, manager registrar programs, Law Courts, 850 Burdett Ave., Victoria V6W 1B4. []

Social Service Tax remitted on accounts written off as "bad debts" Bulletin No. 010 issued by the Consumer Taxation Branch outlines procedures for calculating and claiming reimbursement of tax remitted on accounts written off as "bad debts ."

The Bulletin provides informa-

tion on claiming reimbursement when payment received is greater than the tax remitted; when no payment is received; when payment is less than tax remitted; how to claim thereimbursement and the time limits for seeking reimbursement.

You can obtain a copy of the bulletin or further clarification from your local Consumer Taxation Branch office or call Johanna Bloch at the B.C. Branch office (687-3404) who will FAX you a copy of the bulletin. []

10

Highlights from the Provincial Council Meeting Legal Aid & Gender Equality Report recommendations focus of Dec. 5 Council Meeting From the President President Rob Gourlay reported that the court challenge to the provincial sales tax on legal services had concluded after six days of hearing and judgment had been reserved.

Gourlay reported that the "Fair Auto Compensation Committee" has submitted its report to ICBC and thanked the many members who had copied the B.C. Branch with their individual submission to ICBC.

Legal aid developments discussed by Council David Rice, chair of the Legal Services Society (LSS), provided B.C. Branch Provincial Council members with a brief outline of the Society's response to the "Agg Report" at the December 5 Council Meeting.

Rice noted that the LSS Board had approved the Agg Report in principle and confirmed that recommendations 35 and following were being implemented . He reported that Nancy Henderson has been hired as Manager of Audits and is investigating a number of files.

Rice also reported that LSS is planning to setup six "staff teams" this year and are considering an additional 70 teams in the new year. A family team would consist of one lawyer I secretary; a criminal team would consist of one lawyer/ paralegal/secretary. He sug-

路 gested that each of these teams would handle some 200 cases a year but the Association of Legal Aid Lawyers indicate that caseload of 120 a year would be more realistic. He further reported that the new management team was in place; several changes to the board of directors had taken place; and, a board workshop to define roles had been held.

Rice indicated that regarding conflict of interest, various alternatives are being considered including disclosure of conflict, limits on the amount of LSS work that might be handled by a board member; or, denial of LSS business to a board mem. bers or their firms.

David Griffiths expressed specific concerns about choice of counsel, funding levels and the decision to set up the 76 "teams" and the cost of doing so.

Rice replied that the start up costs of these teams was about $4 million. He stressed that the current policy of the board is to provide choice of counsel to applicants. He said that in his opinion the LSS board is not providing a "public defender" 路model and that it will continue to offer the right to choice of counsel. He added that the placement of the teams will likely be in those areas where the private bar has not been able to service legal aid clients.

After Council's discussion of the legal aid issue, the resolution on page 11 was approved.

Implementation of the Law Society of B.C.'s Gender Equality Report's Recommendations John Waddell and Kathryn Berge, as Co-Chairs of the B.C. Branch Gender Equality Committee, briefly outlined the objectives of the Committee.

Waddell referred to the report he had presented to the Law Society special meeting with a special focus on implementation of the specific recommendations directed to the CBA. He reported that the Committee is also receiving comments from Sections who are responding to recommendations that apply to specific practice areas.

Berge briefly described five policy papers prepared to date by the Committee. These include: gender-neutral language; alternate work arrangements policy; work -place harassment policy; model policy on work place equity; and, model policy on maternity I parental leave. Berge asked Council members to review these papers which will be discussed in more detail at the February Council meeting. 路 . Several resolutions were brought forward for debate and approval: Please refer to page 11 for a summary of these resolutions and the action taken.

Please turn to page 11

Ten lawyers named Queen's Counsel Ten distinguished members of the Bar who have made a significant contribution to the work of the legal profession in our province were named Queen's Counsel by Attorney General Colin Gabelmann in late December 1992.

They are:

+ Thomas Berger +Alexander (Ace) Henderson + Grant Burnyeat + Stuart Rush + Lynn Smith + Marguerite Jackson + Gina Quijano + Terry LaLiberte + Jane Purdie

+ George Majic The ten were jointly recommended by the Chief Justice of the B.C. Court of Appeal, the Chief Justice of the B.C. Supreme Court, the Chief Judge of the Provincial Court and the Law Society of B.C. D

11

Highlights from the Provincial Council Meeting Resolutions approved by Council arising from Law Society's Gender Equality Report Gender Neutral Language Policy: Council approved adoption of principles and recommendations set out in the gender-neutral language policy included in the Gender Equality Report and agreed to implement gender-neutral language in all written, audio, oral and visual communications of the Branch office, the Provincial Council, Sections and affiliated organizations.

Appointments to the B.C. Judicial Council: The original resolution recommended that appointments to the B.C. Judicial Council be alternated between male and female appointments.

After discussion, Council approved an amended resolution urging the B.C. Branch to consider means to enhance representation of women and minorities in the various appointments made by the B.C. Branch.

Study into the Ethical Issues Facing Lawyers with Respect to Sexual Abuse Cases: the National Council had approved a resolution in 1991 to study this issue. Council agreed to table the motion and directed the Committee to provide more information to next Council meeting.

Canadian Bar Insurance Association/National and B.C. Branch Member Services: Council approved the resolution urging the CBIA and the National and B.C. Branch Member Services Committee to ensure, on an on-going basis, that existing and future programs, services and products be made available to all members and insureds without discrimination on the basis of family status or sexual orientation.

Child Care Expenses: Berge reported that the Committee has 路 prepared a draft report for the Executive and that this would be considered at the February Council meeting.

Maritime Resolution The Maritime Law Section forwarded a resolution to Provincial Council that witnesses should be entitled to have counsel of their choice at Transportation Safety Board hearings.

Council approved the resolution unanimously.

Barrister's room at 800 Smithe to remain Joint Court Services Co-Chair Robert Clarke informed Council that the Barrister's Room at 800

Smithe would remain on the 3rd floor but that lockers would be moved to the 2nd floor. He reported that Crown Counsel salaries have been finalized and that Court Reporter contracts are under negotiation.

CBA members are encouraged to contact Bob Clarke at (5455344- Vernon) to discuss any matter relating to Court Services in your area to bring forward these items for consideration by the Committee. D

Council approves resolution regarding Legal Aid WHEREAS the Canadian Bar Association recognizes the Public's right to counsel of choice; and Whereas the Canadian Bar Association recognizes that there can exist within the tariff referral system the need for staff functions prior to a referral under the tariff; and Whereas the Canadian Bar Association is prepared to consider a staff delivery of services if they cannot be provided by the private bar under the existing tariff; and Whereas the Canadian Bar Association recognizes the importance of the Legal Services Society being independent from government; and Whereas the Canadian Bar Association recognizes the need for consultation between the Canadian Bar Association, Law Society, Legal Services Society and government.

Be it resolved that: 1. The Canadian Bar Association engage in a process of consultation with the Law Society of British Columbia and the Legal Services Society and the Provincial Government to preserve the Public's right to counsel of choice and preserve the strength of the tariff referral system.

2. The Canadian Bar Association express its opposition to recommendations 6, 12 and 13 in the Agg report on legal services.

3. The Canadian Bar Association, while respecting the independence of the Legal Services Society, urges the Society not to proceed with implementation of the Agg Report until there has been full consultation with the Canadian Bar Association and the Law Society of British Columbia.

4. The Canadian Bar Association urges the Legal Services Society to give serious consideration to those recommendations in the Agg Report regarding Services Delivery Management, namely recommendations 36 to 63 inclusive, with a view to improving the efficient delivery of services.

12

Salary surveys available to assist you with budget planning Compensating staff is ah important issue for law firms.

Across-the-board increases are no longer the norm. Make informed decision$ about your staff compensation. You can purchase the following surveys: Support Staff Compensation or the Lawyer Hourly Rate Survey are an excellent source of current salary and hourly rate information. Data is cate-

gorized in firm size groups of 115, 16-39 and over 40 with results grouped togeographic regions. These surveys are a joint project of the CBA (B.C. Branch) Member Services Committee in cooperation with the Vancouver Association of Legal Administrators (V ALA).

The surveys can be purchased directly from the CBA at $200 (includes GST) per survey. Call

Kaayla Kenna at 687-3404 to order your copy.

Associate Salary Survey of law firms with 5 to 30 lawyers provides the most current associate compensation and benefits information . The cost of the survey is $75 (plus GST) and can be ordered directly from Williams, Penner and Co. (tel: 2449315) . [J

Adventures in Scandinavia booking now Scandinavia is much more than rugged fjords and deep green forests.

It is a country of museums brimming with priceless antiques, castles and palaces seemingly out of storybooks,

homesteads of poets, composers and playwrights!

Vantage Travel, a CBA (B.C. Branch) Member Services endorsed firm, is offering a trip of a lifetime beginning in Helsinki, with visits to Oslo, Bergen, and

Stockholm.

You can request further information and registration by calling Vantage Travel at 1-800-8330899. Be sure to mention that you are a CBA (B.C. Branch) member. 1J

Send for more investment information and get an authoritative guide!

A Guide to Sound Investing is an easy-to-read guide, full of practical information to help you:

Send today for more detailed information about the CBA Retirement and Savings Program.

Contact Tom Dontsos at FINSCO Investment Management Corporation at 684-3863. .

+Build your wealth though intelligent investing;

Your request places you under no obligation whatsoever. Let FINSCO help you achieve a secure future.

(FINSCO is endorsed by the Canadian Bar Association to provide members with atop quality retirement and savings program.) IJ

+Plan for a comfortable, secure retirement;

+Pay less tax.

Member Services Product of the Month Thousands of dollars can be saved on a car purchase when you use your CBA (B.C. Branch) Member Services agent, ProGroup Sales <;1nd Leasing Inc. With just one telephone

call, you can get complete information, prices, specifications, option lists and detailed quotes on any make or model (domestic or import) for all cars, vans and trucks.

This plan is offered to all CBA 路 members, including family members, and your employees.

See the enclosed brochure for further information about this new car purchase plan or call 270-4466. [J

Official directory of B.C. Chartered Accountants still available There are still some copies left of the official directory of chartered accountants in British Columbia. Produced by thelnstitute of Chartered Accountants of B.C. biannually, the 1992-93

directory lists all the CAs in British Columbia alphabetically, with firms broken down by region. It sells for $25 per copy.

To order your copy, please call

the Institute at681 -3264, or tollfree 1-800-663-2677, and ask to purchase the Membership and Source Directory. []

13

TAKING CARE OF

BUSINESS

March 25 to 28, 1993 Grand Okanagan Resort, Kelowna Canadian Bar Association, B.C. Branch Winter Convention '93 Call the B.C. Branch at 687-3404 for registration information.

The '90s are in full swing and lawyers face increased pressures caused by changes in the make-up of our profession, the nature of our clients and their required legal services, foreign and domestic economic conditions and quality of life issues.

Our hard-working Winter Convention '93 committee has put together an outstanding substantive program with speakers who will enlighten or perhaps irritate you with their views. But as with any thought-provo}<ing dialogue, you will come away with ideas to assist you to face these pressures and grow professionally.

The Conference will be held in Kelowna at the beautiful new Grand Okanagan Resort and you will be able to meet colleagues and expand your business contacts at our ''business-after-business" law firm receptions, at the Exhibitor's displays, between and after sessions.

For the first time, we are offering a special registration category for your clients, business associates, and office managers and would encourage you to register them for this important convention.

The Social Events, as usual, will be first rate ending with a fabulous "Western-Style" dinner and dance featuring rising B.C. star - Bing Armstrong and the Lonesome Steve Band. The local Kelowna Committee is arranging intriguing programs such as the Wineries Tour, Ski packages to Big White and Silver Star, golfing, and even hot-air ballooning! The entire weekend will be a family event with a special

David Peterson keynote speaker at Winter Convention in Kelowna David Peterson, Q.C., former premier of Ontario, will provide the keynote address on March 26 to delegates of the B.C. Branch Winter Convention '93.

Peterson will discuss the changing global conditions affecting the practice of law and the opportunities that these conditions, including NAFT A, will mean to practitioners. The latest information in practical, interactive sessions is featured at Winter Convention '93 . Plan to attend and register today!

.

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Convention '93 Poster Design: Jerry Foster & Associates Design; Brochure photogrf!phy: Alistair Eagle Photography

children's program, daycare/babysitting, and a wind-up Kid's Pizza Party.

I look forward to seeing you in Kelowna from March 25 to 28 at "Taking Care of Business"- the CBA (B.C. Branch) Winter Convention '93. Don't miss this unique opportunity to learn and enjoy! The registration form and detailed brochure has been sent to all members. We hope that you enjoy and display the specially created poster designed for this event.

Kerry-Lynne D. Ferris, Ray Connell Winter Convention '93 Chair

Early bird registration prize offered!

Air Canada is providing two return AirBC tickets as an Early Bird Registration Prize for CBA member registrants. Register by Feb. 26, 1993 and you could be flying to the Winter Convention in Kelowna courtesy of Air Canada. Your registration form and payment must be received at the B.C. Branch office by Friday, February 26, 1993 to be eligible. Air Canada is the "preferred airline carrier" of the CBA (B.C. Branch):

Win a get-away weekend to

San ~rancisco sponsored by Corporate Couriers. All registered CBA delegates will be eligible to win this weekend for two including airfare and hotel. Prize will be drawn at the Saturday Dinner/Dance.

14

Law Week '93 set for April14 to 21, 1993 Law Week 93 Committee Chair Debra Hanuse of Davis and Co. is pleased to announce that plans for the 11th Law WeekApril 14 to 21, 1993 are taking shape. The theme this year is the tOOth Anniversary of the Criminal Code.

The provincial essay contest and public speaking contest will be held again. Information has been sent to all Law 12 classes; further information can be obtained by calling the B.C. Branch office (687-3404).

Hanuse reports that a variety of activities, including mock trials and speakers in the classroom, are planned in the Vancouver area to provide out-reach programs and to involve more lawyers and justice-related persons this year. Some 25 locations throughout the province are planning Law Week activities including open houses at various courthouses. CBA members are encouraged to contact the local Law Day organizers as listed and to participate. D

Students require gowns for mock trials The Law Courts Education Society is looking for donations of old lawyer's gowns to be used for student mock trials. If you can help out by donating a gown that you may not be using any more, please contact Sandra Morrison, Regional Coordinator, Law Courts Education Society (tel: 660-2919) . D

Gale Cup turns twenty This year's competition on February 26 and 27, 1993, is the 20th year for the Gale Cup Moot, Canada's prestigious national moot. Last year's firstplace school was Saskatchewan,

Interested in Law Day activities in your area. Contact the Day organizer in your community as listed below.

Vancouver/Lower Mainland Debra Hanuse Victoria Fiona St. Clair Williams Lake Sandra Hawkins Nelson Ernie Armitage Kamloops/Clinton Meegan Clemis Courtenay James Dow Duncan Jill Turner Kelowna Sue Connagham Prince George/N azko Re'Serve/QuesneUV anderhoof/ Prince Rupert Judy Jones Vernon Dale Kermode Penticton Kathryn Ginther Merritt Phil Maher Nanaimo Sheila Andreychuk Ft. St.John Michael Gray Surrey Jan Baldwin Chilliwack Sheila Checkers New Westminster Margaret Hollis Enderby Rudi Ingenhorst followed by UVic, UBC and the University of New Brunswick.

The Gale Cup Moot Competition is held in the august surroundings of Osgoode Hall in Toronto which is the seat of the Court of Appeal in Ontario.

Judges, court clerks and ushers assist the mooters to simulate as closely as possible, a real experience at the appellate level.

The problem to be mooted is usually drawn from a recent Supreme Court of Canada case so, in effect, students are appealing a Supreme Court decision to a "higher" court- the moot court of the Gale Cup Competition.

School teams consist of four students. Excellence in advocacy is just one important aspect of the Gale Cup as students enjoy interaction with other participants, faculty advisors, and judges.

For further information on the Gale Cup, contact Janice Richardson at the Canadian Bar Association -Ontario (416-8691047) . D

Law 643-2991 356-8893 392-4158 352-5538 828-4662 338-7701 748-5253 762-2108 565-6258 542-5353 493-2414 374-3344 753-7161 785-5674 572-2291 795-8340 526-1821 838-6431

Healing the Past, Forming the Future The National Association of Women and the Law (NAWL) is holding its Tenth Biennial Conference in Vancouver from Feb. 19 to 21, 1993.

The Conference will feature workshops, panels and plenary sessions on topics including pay equity, women as judges, women and the constitution, freedom of speech, and obscenity.

Confirmed speakers include former Supreme Court Justice Bertha Wilson and UBC Dean of Law Lynn Smith. For registration information, contact NAWLat255-1811. D

Information Rights Week The B.C. Freedom of Information and Privacy Association (FIP A) with the Privacy Branch of the B.C. government presented Information Rights Week from Feb. 1 to 4, 1993.

The week was dedicated to debating the planned extension of

Please turn to page 20

You will see a reference to the number of the Bill (First Reading Bill Number) when it was introduced into 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 First Reading 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 Professional Retirement Savings Plan Agreement Extinguishment Act, S.B.C. 1992, c.80, First Reading Bill Number 14, extinguishes the rights and obligations under an agreement dated October 10, 1991 and earlier agreements, plans and undertakings by which $25 million would be contributed annually to help fund retirement savings or similar benefits for medical practitioners. in force July 3, 1992

Municipal Amendment Act (No.2), 1992, S.B.C. 1992 c. 79, First Reading Bill Number 77, amends the Municipal Act 路

(a) as to s.225 and 781, to provide that council members and members of the boards of regional districts who consider that they are not entitled to discuss or vote on a question are not deemed to have voted affirmatively, (b) as to Part 28, adding Division (4.1)- Protection of Trees, and repealing s.935, toestablish a new scheme of municipal authority regarding the protection of trees and making amendments to s.962 and 978 accordingly, and (c) as to s.789 and adding s.932.1, to give municipal councils and regional districts authority to regulate fire and security alarm systems, to require operating permits, to charge fees for services provided in response to false alarms and to exercise other authority as prescribed by regulation, and makes consequential amendments to the Vancouver Charter. in force July 3, 1992

Health Statutes Amendment Act, 1992, S.B.C. 1992, c.62, First Reading Bill Number 30, amends the

(a) Dentists Act, R.S.B.C. 1979, c.92, deleting

s.54(7), which set out the annual form for the licence to practise dentistry, with the result that this form will be set by the College of Dental Surgeons, and (b) Psychologists Act, R.S.B.C. 1979, c.342, s.9, to allow for the use of panels to conduct disciplinary proceedings, to provide for automatic suspension for non-payment of fees and to expand the options for disciplinary actions. section 1 of the Act (Dentists) in force October 23, 1992; section 8 of the Act (Psychologists) in force January 1, 1993

Members' Conflict of Interest Amendment Act, 1992, S.B.C. 1992, c.64, First Reading Bill Number 64, amends the Members' Conflict of Interest Act, S.B.C. 1990, c.54, inter alia expanding the situations in which a conflict of interest will be found to occur, adding a requirement that members avoid apparent conflicts of interest, including parliamentary secretaries in many provisions, requiring disclosure of material changes within 30 days, and allowing a member of the public or the Legislative Assembly to request the commissioner's opinion.

Act, except section 5 and 14 in force November 5, 1992

Attorney General Statutes Amendment Act (No.2), 1992, S.B.C. 1992, c.32, First Reading Bill Number 58, amends the Escheat Act, R.S.B.C. 1979, c.111, regarding the escheat to the Crown of the land of a dissolved corporation. The period of time during which the Crown must not make a grant or disposition of such property is increased from one to two years, so that if a corporation is revived within such two year period, the land vests in the corporation as if it had not escheated. The procedure for recovery of escheated land after the expiry of the two year period is also amended. The Supreme Court, on application to revive the corporation with notice to the Crown, may order that the land vest in the corporation on terms the court considers appropriate, after the Crown's costs have been reimbursed. Application is no longer made to the Lieutenant Governor in Council. section 5 of the Act in force November 27, 1992

16

Legislative Update (continued) Municipal Amendment Act, 1992, S.B.C. 1992, c.18, First Reading Bill Number 47, amends the Municipal Act, R.S.B.C. 1979, c.290, s.42, setting the date for annual property tax sales at the last Monday in September, or if this is a holiday, on the next Monday that is not a holiday.

fore June 26, 1990. sections 7- 13, 18(1) and (3), 23, 24(1), (2)(d) and 3(c), 25- 40, 42, 43(3), (4), and (5), 45- 47, 48(2) - (7), 49(1), 50- 60, 62(1)(c), 6365, 70, 71 and 77 of the Act in force January 1, 1993 Historical Note: sections 1, 73 and 78 of the Act in force May 24, 1991; sections 2 -6, 62 except 62(1)(c), 66- 69, 72, and 74 of the Act in force August 23, 1991

section 42 of the Act in force November 27, 1992

Motor Vehicle Amendment Act, 1992, S.B.C. 1992, c.65, First Reading Bill Number 70, amends the Motor Vehicle Act, R.S.B.C. 1979, c.288, as to s.SS, providing for the issuing of licenses for motor vehicles and trailers with terms ending at different times throughout the month, rather than at month end, providing a method for the calculation of fees for shorter terms and making a consequential amendment to the Commercial Transport Act. sections 4, 5, 6(a) and 9 of the Act in force December 1, 1992

Mineral Land Tax Amendment Act, 1992, S.B.C. 1992, c.l3, First Reading Bill Number 27, amends the Mineral Land Tax Act, R.S.B.C. 1979, c.260, giving the administrator some powers relating to production areas previously held by the Lieutenant Governor in Council, repealing the establishment of the Mineral Tax Review Board and the right to appeal under the Act, making consequential amendments to the Mineral Tax Act, S.B.C. 1989, c.SS, establishing the Mineral Tax Review Board under that Act and providing for appeals, and to the Petroleum and Natural Gas Act, R.S.B.C. 1979, c.323, establishing a freehold production tax payable by owners of freehold land and calculated as a percentage of the value of petroleum and natural gas produced and disposed of from the freehold land. sections 1(b), 2, 7, 10- 17 and that part of section 8 which repeals section 21 - 25 and 29(1)(c), (2) and (3) of the Mineral Land Tax Act in force December 21, 1992

Pension Benefits Standards Act, S.B.C. 1991, c.15, provides for administration of pension plans, transfer agreements, provisions required for pension plans, entitlement to join a plan, vesting, locking in, interest, minimum employer contributions, portability of commuted value of benefits, survivor benefits, adjustments for CPP, QPP and OAS, age provisions, payment or transfer of contributions, permitted variations in benefits, fund holders, remitting contributions, withdrawal from a multi-employer plan and arbitration of disputes in event of such withdrawal, fiscal year, termination or winding up and disposal of business, effect of amendment, assignments, matrimonial property agreements and orders, evidence of entitlement, establishment of a pension advisory committee and a transition provision relating to collective agreements entered into be-

Agriculture, Fisheries and Food Statutes Amendment Act, 1992, S.B.C. 1992, c.29, First Reading Bill Number 42, amends the

(a) Agricultural Land Commission Act, R.S.B.C. 1979, c.9, adding provisions which clarify the application process to exclude land from or to permit a non-farm use of land in agricultural land reserve, provide for the payment and distribution of application fees and provide for the commission's revenue to be paid into the consolidated revenue fund, and (b) Soil Conservation Act, R.S.B.C. 1979, c.391, adding provisions which consolidate the applications to the local authority and the provincial agricultural land commission toremove soil or place fill on land and provide for the payment and distribution of the application fees. in force January 1, 1993

Guaranteed Available Income for Need Amendment Act, 1992, S.B.C. 1992, c.41, First Reading Bill Number 68, amends the Guaranteed Available Income for Need Act, R.S.B.C. 1979, c.158, amending the definitions of "income assistance" and "social services", to remove certain services from the definition of social services and adding them to the definition of income assistance. section 1 of the Act in force January 1, 1993

Miscellaneous Statutes Amendment Act, 1992, S.B.C. 1992, c.77, First Reading Bill Number 81, amends inter alia the

(a) Infants Act, R.S.B.C. 1979, c.196, allowing all infants regardless of age to consent to health care and requiring the health care provider to explain to the infant and be satisfied that the infant understands the nature, consequences and reasonably foreseeable benefits and risks of the health care and to make reasonable efforts to determine and to conclude that the health care is in the infant's best interests. The requirements to attempt to obtain parental consent and to obtain a second opinion are deleted,

17

Legislative Update (continued) (b) Pension Benefits Standards Act, S.B.C. 1991, c.15, clarifying that a person must be under age 55 if he or she wishes to transfer benefits on termination of membership, clarifying the minimum notice period required for notice to members, former members and unions of termination or winding up of a plan, requiring the giving of notice within a prescribed time period where a party intends to submit a matter in dispute to arbitration and deferring the in force date of s.15 - 22,41, 44, 47,49 and 70, originally to come into force on January 1, 1993, until they are brought into force by regulation, and (c) Pension (College) Act, R.S.B.C. 1979, c.316, Pension (Municipal) Act, R.S.B.C. 1979, c.317, Pension (Public Service) Act, R.S.B.C. 1979, c.318 and Pension (Teachers) Act, R.S.B.C. 1979, c.320, to delegate to the Lieutenant Governor in Council the authority to make regulations amending the applicable Act to ensure that it complies with the Pension Benefits Standards Act. Any amendments made are automatically repealed August 31, 1993. sections 2, 9- 19 of the Act in force January 1, 1993

Labour Relations Code, S.B.C. 1992, c.82, First Reading Bill Number 84, provides for the repeal by regulation of the Industrial Relations Act, R.S.B.C. 1979, c.212, provided that all regulations, certifications, accreditations, orders and directions made under it remain in full force and effect until specifically otherwise dealt with. The following outlines some of the changes which the Code makes to the Industrial Relations Act. Part 1 - Introductory Provisions. The name of the administrative board empowered by the Code is changed to the Labour Relations Board, the definition of "employee" is changed to streamline the exclusions, the definition of "employer" allows for dependent contractors. The Code expands appropriate bargaining units to include dependent contractors even where there is no existing certification of employees. The definition of "unit" allows for a bargaining unit containing only one employee. The purposes of the Code and a provision allowing for continuing review of the Code are set out.

Part 2- Rights, Duties and Unfair Labour Practices. Employers are prohibited from suspending, transferring or laying off employees during a union organizing campaign without proper cause and the time period for deciding complaints about violations of employees' rights when no collective agreement is in force is reduced. Auto-

matic certification may occur where an employer commits an unfair labour practice if the union would otherwise likely have obtained the requisite support. Employers are entitled to communicate with employees a statement of fact or opinion reasonably held about the business within specified limits but may not interfere in the employees' selection of a union. Union security clauses are enforceable, subject to specified limitations. There are no provisions prohibiting secondary boycotts and limiting non-affiliation agreements, as were previously contained in s.4.1 and 9.1 of the Industrial Relations Act. Part 3 - Acquisition and Termination of Bargaining Rights. If a union can demonstrate that at least 55% of the employees of a unit are members of the union, the union is entitled to be certified as bargaining agent for the employees in the unit without a confirming vote. Where membership is between 45% and 55%, a representational vote is taken. Provisions in the Irzdustrial Relations Act which allowed an employer to apply for decertification in certain circumstances have been removed. As well, the instances in which decertification will take place as a result of a change in ownership or control of a business are more restricted.

Part 4 - Collective Bargaining Procedures. Unilateral alteration of any term or condition of employment after the expiry of a collective agreement is prohibited . Either party attempting to negotiate a first collective agreement may apply to the board for the appointment of a mediator to assist in the negotiations, during which appointment the parties cannot strike or lock out. The Board may suggest a resolution to a dispute which is not resolved by the arbitration process.

A collective agreement must contain a provision for joint consultation about issues relating to the workplace that affect the parties or any employee. The parties must jointly develop adjustment plans to deal with technological changes. Adjustment plans are not referred to arbitration. The notice period for a planned change is reduced to 60 days.

Part 5 - Strikes, Lockouts and Picketing. Therequirement that strike and lockout votes be government supervised is eliminated. Health and welfare benefits to striking or locked out employees (other than pensions) are continued, provided that the union pays their full cost. The board has discretion to allow common site picketing which adversely affects neutral third parties.

Employers are not permitted to use replacement workers during a lawful strike or lockout, includ-

18

Legislative Update (continued) ing employees from another of the employers' operations.

Part 6 - Essential Services. Where the minister considers that a dispute poses a threat to the health, safety or welfare of the residents of the Province, the minister may direct the board to designate essential services. References to educational services and an economic threat to the Province are no longer included. The designation process is streamlined. If the minister makes a direction before a strike or lockout has started, the parties cannot strike or lock out until the designation is made.

Part 7- Mediation and Disputes Resolution. Mediation is available at the request of either party.

The minister may appoint a special mediator at any time during a collective bargaining dispute when it is in the public interest to do so. Provi. sions relating to the Public Interest Inquiry Board and public sector interest arbitration are eliminated. Parties may decide voluntarily to resolve their differences through binding arbitration.

The minister may appoint an industrial inquiry council to promote labour relations stability and conditions favourable to settlement of disputes.

Part 8- Arbitration Procedures. The Collective Agreement Arbitration Bureau is established to resolve expeditiously by arbitration, grievances and disputes which arise during the term of a collective agreement. The Arbitration Bureau is part of the Ministry of Labour and Consumer Services. sections 83, 86, 87, 104 and 105 not yet in force

Part 9- Labour Relations Board. Reports from persons undertaking investigations on behalf of the board will be available to the parties, _with exceptions relating to union membership. Board decisions must be made within a reasonable period of time. The Board may grant leave to a party to apply for reconsideration of its decision.

Part 10- Miscellaneous. The minister or designated person has the power to enter premises and inspect related to matters dealt with in the Code.

Part 11 -Transition and Consequential Provisions. This Part provides for the transition from the Industrial Relations Act to the new Code and makes consequential amendments to several other acts.

Act, except sectio11s 53, 54, 83, 86, 87, 104 and 105 in force Ja11uary 18, 1993; sections 53 and 54 (joi11t consultatio11 a11d adjustme11t plans) i11 force May 1, 1993; Industrial Relations Act, except sectio11s 74-78, 95 and 96, repealed January 18, 1993; sectio11s 74-78 repealed May 1, 1993

Financial Institutions Statutes Amendment Act, 1992, S.B.C. 1992, c.59, First Reading Bill Number

65, amends the Company Act, R.S.B.C. 1979, c.59, as to s.322, to provide that an extraprovincial society that is deemed to have a business authorization or is ordered to apply for a business authorization under s.190 or 192(2) of the Financial Institutions Act, is subject to the provisions of Part 10 of the Company Act which apply to extraprovincial corporations. section 51 of the Act in force February 1, 1993

REGULATIONS TO NOTE Social Service Tax Act, B.C. Reg. 84/58, the Social Service Tax Act Regulations is amended to provide that if the purchase price of legal services is paid for partly by the individual receiving the services and partly by legal aid, the services paid for by the individual are exempt from the tax.

B.C. Reg. 420/92 effective June 1,1992

Adoption Act, B.C. Reg. 290/91, the Adoption Reunion Regulation No.2 is amended, deleting the requirement for the payment of fees by a person requesting written non-identifying information concerning a birth relative or birth child.

B.C. Reg. 416192 effective October 29, 1992

Members' Conflict of Interest Act, B.C. Reg. 307I 91 is repealed and B.C. Reg. 423/92, the Members' Conflict of Interest Regulation is made amending the forms of disclosure statements and adding a form for the statement of material changes, in accordance with the amendments contained in the Members' Conflict of Interest Amendment Act, 1992, referred to above. effective November 5, 1992

Gas Safety Act, B.C. Reg. 16/87, the B.C. Gas Code Regulation and B.C. Reg. 440/ 87, the B.C. Propane Code Regulation are repealed and B.C. Reg. 442/92, the B.C. Gas Code Regulation is made, adopting with some variations, the national code as defined. effective November 27, 1992

Court Rules Act, B.C. Reg. 221/90, the Supreme Court Rules, are amended as to Rule 58(6), to provide that interest on funds held in court will be calculated for each 6 month period after December 31, 1992 at 2% below the prime lending rate of the banker to the Province on January 1 and July 1, with interest compounded January 1

19

Legislative Update (continued) and July 1 in each year. Previously, the interest rate was calculated quarterly and interest was compounded semi-annually.

B.C Reg. 432/92 effective January 1, 1993

Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 the Revised Regulation (1984) Under the Insurance (Motor Vehicle) Act, is amended, including inter alia, adding s.74.1, which provides that upon assuming the defence of an action against an insured, the corporation has exclusive conduct and control of the defence of the action, including appointing and instructing counsel, admitting liability on behalf of the insured, participating in alternate dispute resolution and compromising or settling the action. Many other amendments relating to premiums and coverage are made.

Pension Benefits Standards Act, B.C. Reg. 494 / 92, the Pension Benefits Standards Regulation is made, providing inter alia for exemptions from certain provisions of the Act; notice requirements; contents of statements to be provided to a member or former member on termination, retirement or death; requirements for the formulas used to determine benefits, member and employee contributions and allocation of contributions; requirements for determination of commuted value; entitlement to join or rejoin a plan; interest on contributions; transfers; integration with CPP or QPP; maximum commutable amounts; remitting of contributions; allocation and distribution of assets on winding up; repayment of funds improperly transferred and arbitration of disputes. effective January 1, 1993

section 10 of B.C. Reg. 438/92 effective January 1, 1993

Manufactured Home Changes New amendments to the Manufactured Home Act, effective September 11, 1992 ensure that in many cases a manufactured home in a manufactured home park will not be part of the land on which it is located. However, the parties holding interests in it can agree otherwise in writing and if the agreement is filed at the Manufactured Home Registry Office, the manufactured home will be considered a fixture. The amendments are contained in the Miscellaneous Statutes Amendment Act, 1992, S.B.C. 1992, c.77.

The amending legislation responds to Royal Bank v. Neilson (Trustee of) (1990), 43 B.C.L.R. (2d) 363, a decision of the British Columbia Court of Appeal, which held that a mobile home was a fixture rather than a chattel and was therefore subject to foreclosure with the land on which it was located. In that case, the debtor owned both the land and the mobile home. The government became aware that purchasers of manufactured homes who rented lots in manufactured home parks were finding it difficult to obtain mortgage financing, because lenders were concerned that a court might find such a home was a fixture and therefore owned by the owner of the manufactured home park.

Practitioners should note if the Manufactured Home Act applies to a particular situation, the parties must enter into a written agreement in accordance with the Act if they intend the manufactured home be a fixture and file it with the

Manufactured Home Registry Office. The circumstances will apply where, after September 11, 1992, a person moves a manufactured home to a manufactured home park or purchases a manufactured home that has never been occupied and which is in a manufactured home park. [J

B.C. Branch Family Law Sections consider child support issues The Westminster Family Law Section has had a leading role in helping to reform the law governing children's rights.

Last spring the Section, with the other Family Law Sections, was involved in a review of provincial child protection legislation. Recently, a subcommittee of the Westminster Section, chaired by Kathryn Ferriss, with members including Section chair Gary Cohen, Donald Boyd, Jack Hittrich, Irene Pietrow and Brenda Kaine, prepared a submission dealing with child support issues.

The submission was in response to two intergovernmental discussion papers and was prepared with input from the Kamloops, Okanagan, Vancouver and Victoria Family Law Sections.

The British Columbia Branch recognizes the substantial contribution of time and expertise by all the family law practitioners who were involved in the preparation of an excellent submission to government in this area. [J

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Responding to media reports Vancouver Sun Jan. 23, 1993

Lawyers expertise is needed It would not be in the public in-

terest to allow notaries to probate wills and do "simple" incorporations, as Michael Carr suggested in his Jan. 15 Opinion page article (Notaries vs. Lawyers). Notaries do not have the training required to give advice in either area.

Clients often ask for a "simple incorporation" or for the probate of a "simple estate." The fact is that a multitude of issues can arise even in matters that seem simple at first.

If it were simply a matter of fill -

ing our forms, clients could do that for themselves. But when they pay a professional to do it for them, they have a right to expect a level of skill, knowledge and expertise that notaries simply do not possess.

Lawyers have the benefit of three years of full-time studies

at law school, plus a further year of "articles" with an experienced lawyer and an intensive, procedure-oriented training course.

lawyers been offended by garbage. They live on it.

By contrast, notaries take a part-time correspondence course focused on procedures, with very little emphasis on the law itself.

Your publication of the letter from R.E. Bums of Victoria entitled "Puzzled" in your Jan. 22 edition suggests that your paper is engaged in a program of lawyer-bashing. While the legal profession provides ample fod der for humour, the Burns letter was both unpleasant and not funny . Even worse, when properly analyzed, the comment was more an insult to the citizens who participate in the justice system rather than the lawyers who represent them.

There are 7,400 lawyers in B.C. today. Legal work is competitive- prices for lawyers' services have responded to this fact and are competitive with notaries' fees.

The public would be poorly served by permittihg unqualified people to perform legal services.

Rob Gourlay, President, B.C. Branch of the Canadian Bar Association Times Colonist Jan . 22, 1993

Puzzled Regarding the cancelling of a convention in Victoria by the Washington Trial Lawyers' Association, since when have trial

REPORTS AVAILABLE Report

Source

Working paper on Liens for Logging Work

Law Reform Commission of British Columbia (660-2366)

Report of the Commission of Inquiry into Compensation for the Taking of Resource Interests

Ministry of Attorney GeneralLegal Services Branch has an executive summary (Paul Jarman - 3568436); Crown Publications has the full report at acost of $4.75 plus tax (386-4636)

Reports from the child protection review panel- Making Changes: A Place to Start and Liberating our Children: Liberating our Nations

Ministry of Social Services Child Protection Review 1-800-663-1251

Pension Benefits Standards Act -

Employment Standards Branch, Room 210, 4946 Canada Way, Burnaby; Pension Benefits Standards Branch, Victoria, Phone: 993-3342; Fax: 356-5335.

draft regulations for comment by February 15, 1993 (targeted effective date Apri/1, 1993)

R.E. Burns, Victo ria

Letter to the editor

One of the reasons that both lawyers and journalists are held in low esteem is that they are not perceived to act fairly.

Your editorial policy concerning lawyers justified that perception.

John Waddell, B.C. Branch Communications Committee Chair

Info Week (continued from page 14) the Freedom of Information and Privacy Act to municipalities, school boards and other public sector bodies. Of particular interest to lawyers was a session on freedom of information and self-governing professions. For further information, contact FIP A at 739-9788. C BarTalk is published by the British Columbia Branch of the Canadian Bar Association, 10th Floor - 845 Cambie Street Vancouver, B.C. V6B ST3 Telephone: (604) 687-3404 FAX: 669-9601 Le8Jslation and Law Reform Officer: (Victoria) 370-2234 Alistair Eagle Photography (688-8867) is the CBA (B.C. Branch) official photographer. Š CoJ?yright the British Columbia Branch of the Canadian Bar Association-1993.