BarTalk | May 1993

President's Messag!_

NEWSLETTER . . oF THE Challenge to tax on legal serv1ces enters second round CANADIAN BAR---------------------------------------ASSOCIATION, As you will all be aware, the many say the tax remains unfair B.C. BRANCH provincial government has inand selective and probably untroduced a new tax on legal services. Once again, the government has justified it as a tax on lawyers when in fact it is a tax on clients. You should know that as of the date of this writing- May 13 - the government is requiring lawyers to collect and remit the tax, despite the Bill imposing the tax only having passed 1st reading.

May 1993

There is a difference of opinion among Provincial Council members and members of the 4 Bar generally on whether to fight the tax once again. Some say, what's the use? The government can eventually fix the legislation. On the other hand,

VOLUME 5 NUMBER

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,r/j z> ,. istrator Named ... ..... ............ 2 fn , iliiiiiiiiili

Deputy Official Admin-

High risks in real estate practice identified .............. 3 '93 economic forecast ....... 3 Legislative Update .............. 5 Registry Questions ............. 6 Dunk a barnacle! ................. 7 Explore Down Under .......... 8 Judges appointed ............... 8 Dates to note ....................... 8

constitutional. We should not give up the fight, they say.

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B.C. Branch debated the issue, received an opinion from our counsel, Joe Arvay, that we have a reasonable chance of defeating the tax in court, and in the end decided to take the fight to court once again. If we win again, the government may be too politically embarrassed to impose the tax a third time.

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"'a: The Executive Committee of the ~

To those who say our first victory was more expense and trouble than it was worth, you should know that as a result of that win, no tax is payable on

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Rob Gourlay 1992/93 B.C. Branch President

legal services rendered prior to April1, 1993 if a bill is rendered

any time after February 26, 1993.

The cost to challenge the new tax will be relatively modest

Please turn to page 7

Nominations for exceptional contributions considered Nominations are being received for the CBA (B.C. Branch) Georges A. Goyer, Q.C., Memorial Award for Distinguished Service. The award was created in 1992 to recognize the exceptional contributions and/or achievements by any resident of British Columbia: • to the legal profession in B.C.; or • to jurisprudence in B.C. or Canada; or • to the law or development of the law in B.C.; or • a significant law-related benefit to the residents of B.C. The award is named after Georges A. Goyer, Q.C., who

died in November 1992 and who was actively involved in various committees and sections of the CBA as well as the UBC Legal Clinic.

Alec Robertson, Q.C., was the first recipient of this award.

Nominations are adjudicated by a panel comprised of the B.C. Branch President, Immediate Past President, CLE Chair and an elected Provincial Council member. Awards will be presented at the annual Bench and Bar Dinner held in November.

Complete nomination details and a nomination form can be obtained by contacting B.C. Branch Communications Director Larry Hnetka at 687-3404. [J

2

How to get recommended and used for legal work The American Bar Association study, The Legal Needs of the Public, authored by Barbara Curran, clearly demonstrates that people go to a lawyer recommended by a friend, relative or social acquaintance.

Where the client already knew a lawyer, 33 percent went to the Ia wyer they knew and 52 p~rcent went to a lawyer recommended by someone. Where the client didn't know a lawyer, 62 percent of the people went to a lawyer recommended by a friend or relative.

We know that more than a half of our clients are recommended to us and about one-third of our business comes from someone we know.

The logical procedure is for us to do those things which will cause people to recommend us and to avoid doing things which will deter clients from recommending us.

What people considered in recommending us or not recommendinguscan be categorized in order of decreasing importance as follows: 1. Personal interest in the client and the client's case as proven by good communication with the client (office demeanour, bombarding clients with paperwork, telephone availability ..... 19.9% 2. General reputation (clients want a lawyer with a good reputation) ......................... 18.1%

3. Ethicalstandards,honestyand integrity ...................... 16.2% 4. Professional skills, including specialty and experience .....

15.2%

5. Personal characteristics personality, appearance, etc.-and location .......................... 14.3% 6. The fee-amount and perceived reasonableness ........... 11.0% 7. Work habits ...... .. .... 2.9% 8. Other factors ........... 2.4%

Total: .................... ... 100.0% Any individual could be encouraged to recommend you or be discouraged from recommending you through any single factor or combination of factors.

It is, of course, worth your while

Order your '94 Directory now and save

Telephone, FAX and Services Directory.

BarTalk. Order your copies today and take advantage of the special Directory prices available to all members.

The B.C. Branch Directory sold over 10,500 copies last year and is widely used by the legal community as the listings and information are accurate and up-todate. An early-bird order form is included with this issue of

The Directory is a program developed and monitored by the B.C. Branch Member Services Committee and provides members with up-to-date information. Prepaid orders also include delivery within B.C. D

Preparations are under way to publish the 1994 B.C. Lawyers

to try to adapt your marketing techniques to meet the perceived needs of those people who, by recommendation, will account for more than one-half of all your new business contacts.

How to Get and Keep Good Clients, Copyright 1990 Jay G. Foonberg, Beverly Hills, .......

California Available from Lawyers Alert Press, Boston, Mass.

Call1-800-444-5297 for information or write to 41 West.Street, Boston MA 02111.

Product of the Month Harman named deputy official administrator Myrna Hall, Public Trustee and Official Administrator for the Province of British Columbia, announces that effective May 3, 1993, Deputy Official Administrator Services for the Lower Mainland Region will be provided by Helene Harman.

The Deputy Official Administrator administers the estates of people who die without a will and without heirs willing and able to administer their estates.

The Lower Mainland Region in-

eludes Burnaby, New Westminster, Surrey, Delta, Coquitlam and all other areas west of Hope.

The address for these services is: Helene Harman Acting Deputy Official Administrator - Lower Mainland Region #204 - 6446 Nelson Ave. Burnaby, B.C. VSH 3JS Tel: 775-1811 FAX: 775-1813 0

Order your Lawyer's Case and receive a free matching leather luggage tag. The case is topgrain leather and is hand-made in Vancouver at a special price of $199 per case (plus GST I PST). The case is available in black or wine and features a nickel lock and key. Delivery is free within Canada.

An order firm is enclosed with this issue of BarTalk. This prod-

uct is endorsed by the CBA (B.C. Branch) Member Services Committee. D

the expertise of most lawyers.

The only person qualified to determine this is an actuary. The client should be advised toretain one to make the necessary calculations. Even so, there is still a legal question as to what constitutes "interest" under the Criminal Code . ..:

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"' Shelley Bentley

Two new high risk areas in real estate practice identified Vancouver Real Estate Section members were advised about ways to avoid claims in situations involving criminal interest rates and pending local improvement assessments.

P.L.I. Claims Management representative Martha Konig pointed out that a problem may arise for a lawyer where a lender asks the lawyer to act on a transaction involving a high rate of return, whether by way of interest, fees or some other concept.

If an agreement to lend money offends section 347 of the Criminal Code, the lender runs the risk of not recovering any interest, and in some cases, has been denied both interest and principal. Faced with this situation, a disgruntled lender may, notwithstanding his or her claim may be without merit, look to the lawyer for recovery.

The easiest way to avoid potential claims in this type of situation is to do two things. Firstly, the question as to whether an agreement offends the interest rate provisions of the Criminal Code is not an easy one to answer. It is certainly not within

Most likely, an actuary will refuse to provide any opinion in that regard, thereby putting the ball back in the lawyer's court.

This leads to the second step which the lawyer should take, regardless of whether an actuary is retained. This is to advise the client in writing of the risks associated with the high rate of return transaction, and if possible, get the client to confirm that he or she acknowledges and accepts the risk by signing and returning such a letter.

Konig also informed the section members of a potential problem for lawyers acting for purchasers where the lawyer does not take note of and advise the client of a pending local improvement assessment. If the purchaser is unaware of the assessment and it is not noted by the lawyer or his or her support staff the purchaser may complete the transaction believing that all property taxes had been adjusted only to subsequently receive a notice from the Municipality advising of an often significant assessment.

These exceptional tax assessments are usually noted on the tax information sheet in an inconspicuous manner. If the lawyer sees something such as "By-law 1234 Loc Imp Pending" this is what is being referred to.

The notation may not be in this form. The tax information sheet should be scrutinized for any one.

Economist gives 1993 forecast for B.C. and Canada Richard Allen, Chief Economist at the B.C. Central Credit Union, spoke to Business Law Section members on the economic forecast for B.C. and Canada in 1993. Allen began by observing that over the last several years, the federal government has lost its ability to practice responsible fiscal management of the economy.

Because the financial burden of the deficit is so great, it has emasculated the government to practice fine tuning and to stabilize the economy. The void left by an inability of government to implement fiscal policy has resulted in monetary policy stepping in. Instead of fiscal policy we see interest rates moving up and down and money supplies contracting and expanding.

Monetary policy is not a particularly good instrument to use to fine tune an economy. One of the problems is that the now global economy becomes subject to the whims of international investors and financiers, who look for maximum return with minimal risk. They will move large sums of money quickly everyday from one economy to another less risky economy.

About $6 billion changes hands daily around the world through the securities exchange markets.

Last fall, several events resulted in a large and very rapid outflow of investment dollars from the Canadian money market.

The Bank of Canada intervened to reverse the trend and, after months of declining interest rates, they jumped back up two percentage points. The Bank's action was not designed to aid

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SectionTalk (continued) the economy. But rather, the result hurt the economy by accelerating the movement upward in interest rates.

Allen spoke on the future direction of interest rates and exchange rates given the international influence and the role of the Bank of Canada. Allen believes we can look forward to a great deal of uncertainty in the financial markets because of the foregoing factors . Allen then examined the factors which drive interest rates and exchange rates to see if there is a stabilizing trend: 1. One factor involves the eco-

nomic fundamentals in theCanadian economy, which have not changed in recent years; 2. Another factor is the Bank of Canada inflation policy, which has not changed. This policy has succeeded in driving down inflation even faster than Mr. Allen thought it would . He predicts there will be little price pressure over the next year, and Provincial rate of inflation should be about 3.5% while the Federal rate should be about 2.2%.

3. One factor that has changed subtly is the position of the Bank of Canada on protecting the Canadian dollar. Rather than support the dollar, the Bank of Canada will let it find a new low level.

Allen stated that it is a guessing game to forecast where the interest rates will be by the end of 1993. However, he predicts that if no dramatic international events occur, such as a renewed Gulf war, the interest rates should drop to about 6% prime rate perhaps rising slightly by year end, depending upon whether recovery emerges during the year.

Allen is skeptical of some forecasts that the growth rate in

Canada will be over 4% in 1993.

The economy is not booming.

There is growing federal and provincial debt. In B.C. we are exceeding the deficit projections. In addition we have high structural unemployment, 路 which will hold back recovery for awhile. We have declining real per capita income. Despite pay raises some have received, we have less purchasing power than we did last year and the year before. As well per capita income has declined over the last several years.

However, the Canadian economy has been growing over the past six or seven quarters, although slowly. The number of people employed is rising. Despite the growth, we have a great deal of unused production capacity in our economy with significant implications.

Capital is not being fully utilized and there is excess labour, while at the same time labour productivity is rising. Fewer people are required to produce the same output, which means unemployment levels will remain high and investment will remain low.

Consumer spending accounts for about two-thirds of the total demand in the economy. Taking into account adjustments for inflation and population growth, there has been a decline in real per capita spending. In a robust recovery, we should be seeing growth of 6% to 8%, but we are not. The current and projected growth rates are not enough to put all people to work. However, compared to the growth rates of our trading partners, Canada and B.C. are not doing too badly.

In summary, Allen said that we have not come to grips with government debts at either the political level or the man-on-the street level. Although we are growing, it seems depressing

because it is a weak recovery of the economy. Because 70% of government spending relates to health care, education and social services, in Mr. Allen's view, if the deficit is to be attacked in a meaningful way, it must be in these areas.

Enforceability of maintenance orders against estate of party to a separation agreement Liz Morton spoke to members of the Victoria Family Law and Wills and Trusts Sections on the enforceability of maintenance orders against the estate of a deceased party to a separation agreement.

The basic rule is that ongoing payments cease with the death of the payee (creditor): Barber v.

Westminster Trust, [1941] 3 W.W.R. 473 (B.C.C.A.) In the case of the death of the payor (debtor), if the separation agreement provides for continuing payments, this obligation is enforceable. If the will has made no provision for payment of ongoing maintenance, the creditor would have an action against the estate for breach of the separation agreement, breach of an agreement to make a will, or a constructive trust action against the beneficiaries.

A court order for maintenance will not bind the estate unless expressly provided.

An estate is liable for arrears accruing to the date of death; these are collectable as a judgment debt against the estate.

The court may cancel arrears payable to a deceased creditor, but unpaid at her death. In Hampton v. Hampton (1985,

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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

REGULATIONS TO NOTE Waste Management Act, B.C. Reg. 145/93, the Open Burning Smoke Control Regulation is made, exempting a person who carries out open burning of debris on a parcel of land from prohibitions on waste emission contained in s.3 of the Act, proyided that certain criteria are met. effective April 23, 1993

REPORTS AVAILABLE Report

Review of B.C. Student Assistance and Barriers to Post-Secondary

Source Ministry of Advanced Education, Training and Education

Technology-

Workers Compensation Act, B.C. Reg. 146/93, the Regulations for Agricultural Operations is made, setting out requirements for health and safety for agricultural workers and applying s.2, 4, 6 and 8 of the Industrial Health and Safety Regulations (B.C. Reg. 585/77 as amended) to the farming industry.

Public Affairs (3567274)

Household Hazardous Waste Strategy and Biomedical Waste Strategy

Waste Reduction Commission (6609550)

Five-Year Forest and Range Resource Program-

Ministry of Forests - Public Affairs (387-5255)

effective April 28, 1993

Land Title Act, B.C. Reg. 334/79, the Land Title Act Regulation is amended, prescribing fees for obtaining copies of instruments and documents and providing that where .an instrument or document can be requested electronically, no person other than a land title office employee may inspect or copy the original or a microfilm dupli cate without the registrar's consent.

1993 -1998

State of the Environment Report in British Columbia

Ministry of the Environment, Lands and Parks (Public Affairs 387-9422) and Environment Canada (North Vancouver- 6665900)

Draft Regulations on Workplace Violence (Submissions must be in

by June 1, 1993)

Workers Compensation Board (Vancouver- 2763068)

B.C. Reg. 153193 effective Apri/30, 1993

Court Rules Act, B.C. Reg. 478/90, the Small Claims Rules are amended, increasing the fees for certain registry services.

B.C. Reg. 137/93 effective May 10, 1993

6

Your Registry Questions Answered

by Joanne Powers, Manager Registrar Programs

Estate Administration Act

Q Can an Administrator of an estate apply by desk order for letters of Administration when the Public Trustee has requested a bond?

Yes. The Administrator may apply by desk order, or in chambers, and the discretion is left to the Master. Ensure you clearly setout to the Master any concerns you have regarding the application.

A

Rule 51

Q When should we aetas a "Commissioner for taking Affidavits"?

This commission should be utilized in accordance with "Quality Client Service". Our policy in Victoria is to only swear documents that pertain to Court proceedings.

A

Points to consider: a)

If you are the person issuing the order, grant, etc., from which the affidavit is in support, e.g .. Garnishing Orders, Writs of Seizure and Sale, grants of probate (those that are not submitted to the Master) then we should be referring these clients to a Notary Public or a Lawyer;

b)

You must either personally know the deponent or be satisfied on the basis of photo identification (e.g .. drivers license) duly noted on the document itself;

c)

You must be satisfied that the deponent understands what it is he or she has sworn:

d)

If the Affidavits are for use in court or in

support of an application for administration of an estate etc., then we should be performing the function; e)

If your location does not have the services of a lawyer or Notary Public or it is an alteration of previously sworn documents we should utilize the commission.

Divorce Act Rule 1(8)

Q Can an appearance be filed in a Divorce proceeding?

A No, though the Registry staff should not refuse to

file it. Rule 1(8) states as follows: "Parties of record" means all parties who have commenced proceedings or have appeared thereto or filed a statement of defence to a third party notice or filed an answer or answer and counter-petition in a divorce proceeding" Rule 45(3)

Q Can a person make an application before the court prior to commencing a proceeding?

A Yes. Rule 45(3)

"In case of urgency and with leave of the court, application for an injunction may be made before commencement of a proceeding and the injunction may be granted on terms providing for the commencement of proceeding."

Court Order Enforcement Act

Q What is the minimum requirement of "the nature of the cause of action" to be contained in an affidavit in support of a Garnishing Order before Judgment?

A The preferred procedure is to attach the statement

of claim or endorsement to theaffidavitinsupportas an exhibit. The minimum requirement would be an accurate description of the cause of action. An insufficient description of the claim is a common ground of an application to set aside a Garnishing Order before Judgment, which can only be issued in respect of a liquidated claim.

In the words of Wilson, J .: "It must not be forgotten that the attachment of debts before judgment is an extraordinary process, unique in our law, whereby a defendant is deprived of the use of his property before any judgment is rendered against him. There must therefore be a meticulous observance of the requirements of the act."

Q Do we charge to file in the Supreme Court a compensation order made in a criminal proceeding?

A No. There is not a charge for filing any documents from criminal proceedings.

Pl t t 7

ease urn o page

Section Talk (continued from page 4) not provable in bankruptcy for B.C.C.A.), it was.held that a right to maintenance is a personal right enforceable during the creditor's lifetime. The maintenance is not vested in the creditor; it can always be varied by the court. The right therefore does not pass to a deceased's personal representatives. A maintenance debt is

the same reason.

It was noted that Hampton was a case of spousal, not child maintenance. Given the courts' present attitude to arrears, the case may not still be good law in any event.

In the absence of an agreement or order made during the life-

time of a deceased spouse or parent, an estate may not be pursued for an order for payment of maintenance after his or her death. An estate is not a spouse or a parent, and the court will not make a new order to pay maintenance. The better claim to make in such circumstances is under the Wills Variation Act. D

7

President's Message (continued from page 1) since most of the legal research has been done and most of the written submissions prepared.

Our decision to proceed with a further challenge will not satisfy all lawyers. However, we do believe it reflects the opinion of the majority of lawyers and their clients. I will keep you informed of the progress.

Commonwealth Law Conference Along with several other B.C. lawyers, I attended the lOth Commonwealth Law Conference in Nicosia, Cyprus during the first week of May. It was a stimulating experience to discuss issues of common interest with lawyers from more than 60 countries with very diverse ethnic and cultural backgrounds, but with legal systems based on the English Common Law. Many of these issues were strikingly familiar- trying to make a living, dealing with bureaucracy, influencing necessary changes in the law.

My purpose in participating in the Nicosia conference was to promote attendance at the 11th conference which wiJl be held in Vancouver in August, 1996.

Awaiting their turn in the "dunk tank", Maritime Section lawyers, in conjunction with the marine insurance community, raised over $15,000 for the B.C. Children's Hospital Foundation.

This conference will be a unique opportunity for us to welcome lawyers from so many parts of the world, to share experiences and to learn from each other. In a global economy, a gathering such as this is a chance to gain information and insights from current and potential trading partners. And, it allows us to learn from and give support to lawyers from developing countries who are struggling daily for their independence as a profession and in some cases for their personal safety and that of their clients. D Rob Gourlay 1992/93 CBA (B.C.Branch) President

The "Dunk a Barnacle" fund raiser dunked select members of the Maritime Section and their marine clients outside the Old Bailiff's Restaurant at Robson Square on April30. Mr. Justice Lowry was in attendance to judge the water repellent costumes.

Registry Questions (continued from page 6)

order is for service of ongoing proceedings.

Q Where a garnishee received more than one garnishing order relating to the same person, including maintenance garnishing orders, how are they prioritized?

A From the date and time of service of the order. No

priority is given to maintenance garnishing orders.

Q Does a party have to continue getting substitutional service orders from the court after. the initial one, for service of each subsequent document?

A Yes, unless the order specifically stipulates the

The event was organized by Shelley Chapelski of Ray Connell and Merle McKenzie of Bull, Hausser & Tupper. Lawyerly dunkees included Peter Bernard, Michael Bird, Gordon Bisaro, John Bromley, Nils Daugulis, Chris Harvey, Glenn Morgan, Barry Oland, and Doug Schmitt. D

Q What is an "Attorney" in British Columbia?

A The term" Attorney" could refer to a recipient of a power of attorney or to a person appointed as an extra provincial company agent in B.C. The term does not refer to a member of the Law Society of British Columbia.

Blacks Law Dictionary gives the meaning as "In the most general sense this term denotes an agent or substitute, or one who is appointed and authorized to act in the place or stead of another."

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.

8

Viscount Bennett Fellowship winner announced Penney Jay Lewis, a Toronto resident, was selected from a field of 38 legal scholars across Canada to receive the 1993 Viscount Bennett Fellowship for graduate legal studies for the 1993/94 academic term.

Lewis will pursue an M.A. in Medical Ethics and Law at King's College, University of London. She will focus on Informed Consent, working towards developing standards for doctors and lawyers.

The fellowship was established under the terms of at trust established by Viscount Bennett, a former Prime Minister and a past president of the CBA. The fellowship, valued at $20,000, is awarded annually to Canadian students and encourages a high standard of legal education, training and ethics. D

Provincial court judges appointed Six provincial court judges were recently appointed. They include: • Carol C. Baird Ellan appointed to the bench in Vancouver • Ellen M. Burdett appointed to the bench in Vancouver • Judith N. Kay appointed to the bench in Victoria • Hugh C. Stansfield appointed to the bench in Vancouver • William F. Stewart appointed to the bench in Surrey • David Stone appointed to the bench in New Westminster In addition to these new appointments, Jane Godfrey, currently a provincial court judge in the criminal division of the court in Vancouver, has been appointed to serve as Associate

Chief Judge of the Provincial Court. Five retired judges were also appointed to one-year terms to help clear the backlog in small claims court. D

Legal reference package developed .

The British Columbia Association for Community Living (BCACL) and the Family Support Institute (FSI) have completed a one-year project to assist parents of children with mental handicaps, to ensure access to integrated and inclusive education under the School Act. The Legal Reference Package contains a summary of current issues from a family's perspective, a description of the rights and responsibilities of those in the education system, as well as legal information.

The objective of the package is to familiarize lawyers with issues confronting families of children with special needs and to assist them to realize their rights.

A copy of the Legal Reference Package, or further information including a handbook designed specifically for parents, is available from BCACL and FSI at 300-30 East 6th Ave., Vancouver, B.C., V5T 4P4. Telephone: 875-1119 or FAX: 875-6744. D

"Lands down under" closer than you think!

Vantage Travel offers an 18 day all-inclusive tour of New Zealand and Australia departing on October 21, 1993.

You'll begin in New Zealand where it's said "there's no tourists, only guests!" Your first stop is Auckland, then Queenstown including a restful rural home stay- an opportunity to visit a local family for one night. Then you're off to a photographer's paradise- Mount

Cook. You'll "meet the friendly New Zealander's" at a homehosted meal in Christchurch.

Your stay in Australia includes elegant Melbourne and sophisticated Sydney. An optional extension to Cairns and the Great Barrier Reef is available at additional cost.

Space is limited and if you reserve by July 26, 1993, you'll save $300 per person. Your inclusive per person cost from Los Angeles is $4,949 or from Vancouver at $5,479. All prices are in Canadian dollars. For complete tour information, additional departure dates, cities and prices, call Vantage Travel toll-free at 1-800-833-0899.

Vantage Travel is a CBA (B.C. Branch) Member Services endorsed program . D

Dates to Note June 19 CBA (B.c ·. Branch) Provincial Council Meeting Vancouver August 22 to 25 National CBA AGM, Quebec City (613-237-2925) September 17 Annual Meetings of the CBA (B.C. Branch) and Law Society of B.C. Location: 845 Cambie St. BarTalk is published by the British Columbia Branch of the Canadian Bar Association, 10th Floor - 845 Cambie Street Vancouver, B.C. V6B 5T3 Tel: (604) 687-3404 FAX: 669-9601 Editor: Larry Hnetka, Commu nications Director 687-3404 Legislation and Law Reform Officer: Ann McLean (Victoria) 370-2234 SectionTalk Editor: Shelley Bentley, Melville & Yeung 685-3881 Alistair Eagle Photography (688-8867) is the CBA (B.C. Branch) official photographer. ©Copyright the British Columbia Branch of the Canadian Bar Association-1993.