BarTalk | June 2016 by The Canadian Bar Association, BC Branch

SYRIAN REFUGEES | FOREIGN INVESTMENT | INTERNATIONAL MOBILITY

J UNE 2016 | bartalkonline.org

Immigration, Refugee and International Law

news BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Candice Alderson

EDITORIAL BOARD MEMBERS

Marie Burgoyne Laura Cundari Richard Fyfe, QC Brandon Hastings David Madani Kirsten McGhee Gurminder Sandhu Dierk Ullrich Vanessa Werden

BARTALK SENIOR EDITOR

Margot White STAFF CONTRIBUTORS

Judy Cave Travis Dudfield Tanya Galic Stuart Rennie Karen St. Aubin Jennifer Weber Judy Yen

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BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org. © Copyright the British Columbia Branch of the Canadian Bar Association 2016. This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel. The British Columbia Branch of the Canadian Bar Association represents more than 7,000 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

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In June, the Immigrant Services Society of British Columbia (“ISS of BC”) will open a new, world-leading facility at 2610 Victoria Drive, Vancouver: the ISS of BC Welcome Centre. The Welcome Centre will not only serve as ISS of BC’s new headquarters, but as a regional services hub for refugees landing in Vancouver: a one-stop housing and support centre for refugees and immigrants, who often lack english-language skills and connections, to become acquainted with life in British Columbia. The 58,000 square foot, $24.5M Welcome Centre, which was created in partnership with the federal and provincial governments, the City of Vancouver, BC Housing, and Vancity Savings Credit Union, will include capacity for 138 beds in dynamic configurations, cross-cultural and multilingual health, dental, trauma and support treatment centres, classrooms, a community kitchen, a law clinic, multilingual employment services, a foodbank and second-hand clothing room, banking facilities, a multi-purpose government office, and more. The United Nations estimates that more than 14.4 million people meet the definition of refugee, worldwide. Canadians can be proud that we take in approximately one of every ten refugees, either through government programs or private sponsorship, and Vancouverites can be proud of our new world-leading facility on Victoria Drive.

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BARTALK / JUNE 2016

Lawyer Referral Service Email: lawyerreferral@cbabc.org

JUNE 2016

VOLUME 28 / NUMBER 3

Contents

Departments

4 5 6

FROM THE PRESIDENT New Lawyers Up North Need a Break on Student Loans by Jennifer Chow EXECUTIVE DIRECTOR Here’s to Canada by Caroline Nevin PRACTICE TALK Lessons from Mossack Fonseca by David J. Bilinsky

7 8 10

DAVE’S TECH TIPS NOTHING OFFICIAL Soliciting Your Opinions on CPD by Tony Wilson

SECTION NEWS

Sections

SECTION UPDATE International Law and Environmental Law Immigration Law (Refugee Lawyers Subgroup) ADR – Nanaimo Young Lawyers – Lower Mainland

Features

12 IMMIGRATION LAW IN THE TRUDEAU (JUNIOR) ERA by Kyle Hyndman and Deanna Okun-Nachoff 13 EMPLOYMENT LAW ISSUES FOR FOREIGN WORKERS by Jonas McKay and Neil Spencer 14 HOW CAN LAWYERS HELP? by Yun Li-Reilly 15 18

INTEGRATING SYRIAN REFUGEES by Barbara Collins THE IMPERMANENCE OF PERMANENT RESIDENCE by Darcy Golden

19 20

THE INTERNATIONAL MOBILITY PROGRAM by Jeevyn Dhaliwal and Darrren Penner WHERE IS REFUGEE RESETTLEMENT GOING IN CANADA? by Kathy Sherrell

21 REGULATING FOREIGN INVESTMENT IN CANADA by Tony Baldanza

Guest 9

ANIMAL LAW LIABILITY ACT, BILL M212 by Rebeka Breder

Inside This Issue With the relatively recent change in our federal government and with Syrian refugees’ settling in Canada, immigration is a particularly hot subject matter. The Liberals have committed to changes in the law, which will inevitably bring with it policy shifts. Issues such as government transportation loans and income assistance are now getting attention and Canadians are assisting the government by mentoring “GARs” and exposing such refugees to the rich fabric of Canadian society. Other topics such as the impact on permanent residents when they run afoul of the law and foreign investment in Canada are also considered in this issue. Enjoy the read!

News and Events 2 Immigrant Services Society of BC 22 CBA's National Immigration Law Conference Law Week 2016 Recap Photos 23 Dial-A-Lawyer Day Stats CBABC Staff and Volunteers Donate Six Backpacks Full of School Supplies to a Syrian Refugee Family Local Church Helps Out Syrian Refugee Families 24 CBA WLF News CLEBC Update 25 BC Legislative Update Branch & Bar Calendar BarTalk 2016 Readers Survey 26 Tips from Courthouse Libraries BC CBA Legal Conference – August 12-14, 2016 What Are Your Top Five's? Islamaphobia Legal Assistance Hotline

16 27 28 29 30 31

MEMBER SAVINGS LAW FOUNDATION OF BRITISH COLUMBIA PROFESSIONAL DEVELOPMENT DISPLAY ADS BAR MOVES NEW MEMBERS

Also In This Issue

Click here for LEGAL OPPORTUNITIES and ads JUNE 2016 / BARTALK

FROM THE PRESIDENT JENNIFER CHOW

New Lawyers Up North Need a Break on Student Loans Forgiving Student Loans Improves Access to Justice and Diversity

ew lawyers willing to work up north should be granted relief from student loans. Currently, lawyers who work for the BC government are entitled to student loan forgiveness. Lawyers who work in underserved rural communities though, are not entitled to any BC student loan forgiveness. On the other hand, doctors, nurses and other health professionals are entitled to forgiveness of their entire BC student loans after working for five years in an underserved rural community. Rural communities would benefit from lawyers being entitled to student loan relief. Put simply, a BC loan forgiveness program aimed at underserved or “high-needs” communities would improve access to justice in BC. From Prince Rupert to Kitimat to Creston, many “high-needs” communities require greater access to legal advice in family, wills and estates, criminal and other practice areas. Those communities, however, are faced with a shortage of lawyers. “High-needs” communities are those with a ratio of less than one lawyer per 1,000 residents, much lower than the provincial average of one lawyer per 450 residents. Without easily accessible legal advice, access to justice is not achieved. New lawyers, saddled by high student loan debts, are simply not flocking to rural communities. The lower paycheques typically offered by rural communities are a barrier. Lower paycheques mean many more years before student loans are paid off. A 2013 Globe and Mail article entitled “Today’s law grad: Six figures in debt and heading to Bay Street” says it all. Without student loan relief, new law graduates often target higher paycheques to pay off their student loans. With most high paying jobs located in large law firms,

BARTALK / JUNE 2016

many law graduates would rather compete to stay in urban centres like Vancouver than move to rural communities. Many law schools are beginning to recognize the problem of high student debt loads. Osgoode Hall’s law school has implemented a pilot project, an income contingent loan program aimed at granting eligible students relief against tuition payments, which are to be repaid according to their post-law school income levels. This type of program encourages new lawyers to work in lowerpaying poverty law areas or rural communities and thus increases access to justice. Other forms of relief are emerging. In 2014, Newfoundland and Labrador became the first province to replace its student loans system with a needs-based grant system. That same year, the Manitoba government announced it would erase interest payments

on all outstanding Manitoba student loans. This year, the Ontario government announced that it would grant tax credits and similar relief to those in need by essentially offering free tuition to low income families and tuition fee reductions to lower income families. Tuition fees are certainly a lot higher than when I was at law school. They range from $9,029 a year at the University of Victoria to $11,448 a year at Allard School of Law (UBC) to a high of $17,828 per year at Thompson Rivers University. High tuition fees and student loan debts also act as barriers to diversity among law students. A 2012 BC Law Society report showed that visible minorities and Aboriginal lawyers remain underrepresented in the legal profession. In order to promote diversity and inclusiveness, a law degree should remain as affordable as possible to appeal to a broad socio-economic range. We are finalizing a formal submission asking the provincial government to give a break to lawyers who commit to working for five years in rural communities. In my view, it just makes sense.

Jennifer Chow

president@cbabc.org

EXECUTIVE DIRECTOR CAROLINE NEVIN

Here’s to Canada

The most welcoming nation on earth

omewhere in my family’s archives are two pictures of me taken within the same year; one in an Irish dancing costume, the second in a Ukrainian one. That was the year my family emigrated from big-city Belfast to small-town Manitoba. My family’s story is like that of so many other Canadians; we came with our own history and traditions, and we worked hard to fit in with this new, multi-cultural society we had chosen. Years later, each of us has contributed in our own way to our adopted country. I thought of those pictures this past month when our great CBABC staff came together to support a family of Syrian refugees. They had six children between the ages of four and 12. We decided as a group that what we could best offer was a start at helping the children integrate as smoothly as possible into the school year. We collected funds, books and materials, and cre-

ated an amazing compilation of six beautiful backpacks full of school supplies, stuffed teddy bears and love. Past presidents, Council members and staff gave what they could. The pictures (see photo on page 23) and recounting we received of the backpacks being presented to the family were so poignant. It’s impossible to describe what it meant to all of us to be given that chance to help someone else feel welcomed here. I mention our experience because we're in a time when Canadians are being asked to think hard about what it truly means to be a nation that historically welcomed immigrants. We are a young nation in so many ways, even if we tend to think differently at times and certainly our First Nations predecessors know that to be true. Many of us newcomers have been here for generations – the running joke in my house is that my JapaneseCanadian in-laws have been here 100 years longer than my white Anglo-Saxon family. But we’re all

Canadians now. What makes our chosen country great – and strong – is that it did not ask its new citizens to denounce their heritage and history; it asked that we bring the best of whatever we had to make this country greater.

The running joke in my house is that my Japanese-Canadian in-laws have been here 100 years longer than my white AngloSaxon family. I was so proud when our CBA Immigration Section, for the third time since I’ve been at the CBA, offered to provide pro bono assistance to those seeking to immigrate here from a troubled area of the world. Many Syrian refugees have benefited from Canadian lawyers who have stepped forward to help with no expectation of compensation. What an amazing profession.

For the past decade, I have had the honour of speaking at citizenship ceremonies. I talk about the courageous choice my parents made, their desire to leave a conflict zone and make a better life for their children, and the depth of their sacrifice in leaving everything and everyone they knew behind. Throughout the room are always nodding heads and filled eyes, with people recognizing their own stories in the retelling of mine. As we talk and think about the issue of immigration these days, let’s remember that this isn’t just about numbers, labour or real estate. What we are talking about are people’s aspirations and lives. Let’s acknowledge and celebrate that as Canadians we are rich beyond measure despite – and perhaps because of – living in a crazily complex society that rightfully struggles with the challenges of integration and peaceable living with those who lived here before us and those different than ourselves. Let’s remember to view citizenship as a gift. Let’s welcome all those who come to this country, recognizing those who lived and travelled here before us, and take pride in being the most welcoming nation on earth.

Caroline Nevin

cnevin@cbabc.org JUNE 2016 / BARTALK

practicetalk DAVID J. BILINSKY

Lessons from Mossack Fonseca It pays to be careful

Learn from my mistake My mistake, my mistake My mistake... r

– Music, Lyrics and recorded by:

Brown, Keenan, Anselmo, Windstein, Bower, recorded by: Down.

egardless of the speculation over what, if anything, the tax avoidance and shell-company law firm Mossack Fonseca (“MF”) was up to, if there is one important lesson from the Panama Papers disclosure, it is that all of us can increase the level of protection around our client’s data and our own. The volume of the data leak is amazing. It comprised 2.6

terabytes of data according to Forbes magazine. That makes it the largest of all time (whatsabyte. com states that 10 terabytes could hold the printed collection of the Library of Congress). By way of comparison, the Ashley Madison leak was less than a paltry 30 gigabytes (only about 8% of the MF leak). The leaked data include 4.8 million emails, 3 million database format files, 2.2 million PDFs, 1.1 million images, and 320,000 text documents, (Computerworld.com). According to Forbes, whomever performed the leak was much more careful. All MF’s emails, files and images were stored on encrypted drives, moved securely to the Cloud and made available to both technical and non-technical journalists while being kept under wraps. They used Veracrypt, an open-source encryption application, to protect the data. Veracrypt, according to Wikipedia, has the ability to create a “hidden volume” where a second

BARTALK / JUNE 2016

encrypted space is created within an already encrypted disk. It also has the ability to create and run an entire hidden operating system. One can speculate on the circumstances when such extreme protection would be warranted. But since there are lawyers who must act for clients sought by some of the most repressive regimes in the world whose very lives depend on keeping the confidentiality of the data, one can realize that there are circumstances when such protection is warranted. How did the leak occur? Forbes states: “[MF’s] portal used by customers to access sensitive data was most likely run on a three-year-old version of Drupal, 7.23. That platform has at least 25 known vulnerabilities at the time of writing, two of which could have been used by a hacker to upload their own code to the server and start hoovering up data. Back in 2014, Drupal warned of a swathe of attacks on

websites based on its code, telling users that anyone running anything below version 7.32 within seven hours of its release should have assumed they’d been hacked.” To add insult to injury, apparently MF’s website states: “Your information has never been safer than with Mossack Fonseca’s secure Client Portal.” However, Computerworld states: “This breach is quite possibly a broader compromise of the organization,” Maples added. “Attackers may have compromised the Mossack Fonseca network and elevated privileges to that of a domain administrator or email administrator and used these elevated privileges to access and download all the data contained on the email server.” Regardless of how the penetration occurred, the data and public relations loss is immense. But taking appropriate steps now, the rest of us can learn from their mistake and ensure that our firm’s name is not sitting on the opening page of major news sites around the world. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: daveb@lsbc.org Blog: thoughtfullaw.com

GO ONLINE FOR MORE INFORMATION

dave’s techtips SECURITY: How do you protect your data, minimize malware and browse securely? FULL-DISK ENCRYPTION: Full-disk encryption is certainly one way to reasonably ensure that our data has been secured against unauthorized access. Filevault full-disk encryption for the Mac is built into the Apple O/S X 10.3 or later operating system (you need to turn on FileVault in System Preferences). BitLocker is available on the Ultimate and Enterprise editions of Windows Vista and Windows 7, and the Pro and Enterprise editions of Windows 8 and later (again you must go into Control Panel to turn it on). There are third party encryption applications as well such as Veracrypt that works for both Mac and Windows. As mentioned, Veracrypt can be used to encrypt a volume and create an encrypted volume within an already encrypted drive. This makes the second encrypted space virtually undetectable. There are other applications for file and volume encryption such as those listed on encryption-software-review. toptenreviews.com. Other features to look for are secure file shredding (after all, if a file is worth encrypting, you want

to be sure you have securely deleted it, don’t you?) as well as “stealth mode” where no digital footprints of creating, viewing or deleting secure files are created. You would also want to be able to encrypt a file or an entire USB flash drive or external hard drive, just in case you lose it. Better yet, use a secure USB flash drive such as the Ironkey drive. You will also want to be able to send an encrypted attachment to an email, use encrypted email (according to Forbes, the only email system that the NSA can’t assess is ProtonMail) or set up a secure client portal that avoids email entirely. SECURE AND PRIVATE BROWSING: Of course you want to be able to browse the net securely and minimize the risk of introducing malware and prevent tracking cookies and ads. The Tor Browser Bundle may be part of the answer in terms of providing anonymity but remember this, according to Lifehacker: “Available for Windows, OS X, Linux, and in portable forms for all of those, it’s a great way to surf when you’re using an untrusted system, want to keep your identity close to pocket, get around content filtering or site-specific blocks, or keep your physical location a secret from the sites downstream (or anyone who may be watching along the way.) Remember though, Tor is designed for physical and digital anonymity, not security and encryption. What you do while you’re using it may give away that anonymity (sending emails, logging on to web services, etc.), and while

communications inside the Tor network are encrypted, as soon as you leave the network, your data is in the clear (if it’s not encrypted another way.)” However, if you don’t want to move to a new browser, LIfehacker has this advice: “If you’re not terribly keen on the idea of downloading a brand new browser, moving all of your bookmarks, extensions, and other data over to it, and starting from scratch, don’t worry – you can always just tweak Firefox or Chrome to be the browser you want it to be. Of course, you can’t remove some basic features like Google’s built-in update engine for Chrome or Mozilla’s engine for Firefox, but you can still do a lot. For example: Tell your preferred browser to start in incognito or private mode. Change the default search engine to DuckDuckGo, Startpage, or DisconnectSearch. Install a tool like Disconnect or Do Not Track Me that protects your privacy. Use an ad blocker like our favorite, AdBlock Plus, or previously mentioned uBlock Automatically clear your cache and history when you shut down your browser. Use HTTPS/SSL everywhere you can. Use a tool like DNSCrypt to encrypt your DNS traffic. Use a VPN to encrypt all of your traffic. Use strong antivirus and anti-malware tools.” © 2016 David J. Bilinsky

JUNE 2016 / BARTALK

nothingofficial TONY WILSON

Soliciting Your Opinions on CPD

Yes, I'm conducting another informal survey

or those of you who read my June 2015 column entitled "I'm Conducting an Opinion Poll," I have some results to share. To jog your memories, as Chair of the Lawyer Education Advisory Committee of the Benchers, I was soliciting opinions from the membership about PLTC and the articling program. Although our committee conducted objective surveys of newly called lawyers, and met with representatives of law firms throughout the province as part of a formal review, I decided to canvass even more lawyers informally through this column, (supposedly because people read it). Although I would like to say that I received the statistically improbable number of 13,562 responses from 11,848 practising members, in truth, I received close to 50 written responses and around ten telephone calls. The overwhelming majority of lawyers who responded to me (46 out of 50) resoundingly supported continuing PLTC in its current form; tweaked from time to time as necessary. But in fairness, there were a few who would like to have shaved a couple of weeks off PLTC, or who didn't like it in the middle of a student’s articles; something that we've tried to address in our Report to the Benchers, which you can find online here: lawsociety.bc.ca/docs/publications/reports/LawyerEd_2015.pdf. As far as articling, the membership continues to wholeheartedly support the articling program in BC more or less as it is now, and was against adopting the terrifying U.S. style system where there is no articling program to speak of. Some lawyers expressed a concern about a lack of a skills training program in Ontario’s main articling path, and the lack of real articles in its LPP program, and how that might affect newly called Ontario lawyers moving to BC. However, the conclusion that we reached was that PLTC continues to meet the gold standard

BARTALK / JUNE 2016

for pre-call legal skills training in Canada, and we heard this time and time again: if it ain't broke, don’t fix it. As a small aside, as an example of l'esprit d'escalier (in English, it’s called "staircase wit"), I should have asked another question: "what do you think of pre-call legal skills training in Canada?” Who knows? Someone with a sardonic sense of humour may have echoed Chou En-lai when asked "what do you think of Western civilization." Chou responded: "I think it would be a good idea.” The committee is now looking at Continuing Professional Development (“CPD”) this year. So check your inbox over the next few weeks for a survey from the law society all about CPD. When you receive it, please take a few minutes to complete it, and whether you like CPD, or you hate CPD, don't hesitate to put your own comments in the survey, Of course, in addition to the survey, you can always email me your concerns directly.

Mandatory CPD has been a requirement since 2009 in BC. I know people grumble about it, particularly in November or December when they realize they may be short a few credits, (particularly for ethics and professional responsibility). But I'm betting the survey results show that many lawyers only record up to 12 credits, but in truth, qualify for more. I've always liked the idea of a mechanism to carry forward certain unused credits to the next year. Likewise, I like the idea of having an iOS or Android app so that you can record your CPD credits while you're at the course, as opposed to only being able to record them at your office (and then forgetting about it). Still, there are some who might advocate for no specific recording of CPD, but rather, each lawyer would have to certify on oath that they completed the required number of units (with the knowledge that they could be randomly selected to substantiate that sworn statement). There are other people that believe that CPD credit should be available for things that do not, at the moment, qualify, such as pro bono activity, courses on marketing and business development and lawyer wellness. In any event, look for the survey in your inbox and complete it. And contact me if you wish. The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

guest REBEKA BREDER

Animal Law Liability Act, Bill M212 This law bites

n April 6, 2016, Dr. Andrew Weaver, Green Party MLA, introduced Bill M212, the Animal Liability Act (“ALA”). On the face of it, it is a laudable piece of legislation. The explanatory note attached to the Bill is “this Bill will ensure that owners of animals are held liable for the actions of their animals.” Who wouldn’t agree with that statement? As a responsible dog and cat guardian, I certainly do. However, a closer examination of this Bill reveals that it is problematic. In a huge way. Currently, the law in BC is that if a dog bites, the guardian may be held liable in scienter, negligence or under the Occupier’s Liability Act, RSBC 1996, c. 337 (“OLA”). Under scienter, the plaintiff must prove that (1) the defendant was the owner of the dog, (2) the dog had manifested a propensity to cause the type of harm that occurred, and (3) the owner knew of that propensity. The significance of this is that a dog guardian is not automatically guilty if the dog bites. The plaintiff must prove that the dog guardian actually knew of the dog’s propensity to harm, and the surrounding circumstances of the incident are inevitably included in the evidence. The old adage that “every dog is entitled to one bite” applies. While a different legal analysis is used to determine liability under negligence or under the OLA, dog guardians (and dogs) have a fair chance to rebut their alleged liability.

On the other hand, the ALA – at least in its current version – does not provide any such chance, and in fact removes all defences, including those that can be raised under scienter and the law of negligence. So what is the problem? The ALA essentially creates a legal scheme of absolute liability. This means that if the dog bites, no matter the reason – even if he is protecting his own property – the dog guardian (and dog) is liable. End of story. This is grossly unfair. Surrounding circumstances must be considered. Was the dog provoked or protecting his own territory or toy? Was the “victim” ignorant in the way he approached the dog (think person bending down and looking dog straight in the face – which dogs often perceive as a threat). Was a yappy little fluff ball of a dog (think Paris Hilton’s dog) jumping in the face of the bigger dog? Other considerations should also be taken into account such as: the dog’s and dog guardian’s past and present temperament and behaviour, improbability that a similar incident would be repeated, the dog’s potential for inflicting harm, the dog guardian’s history of dog guardianship, and precautions taken by the dog guardian – all of which are considerations that are included in similar legislation in Ontario.

Another problem is that the ALA would create unintentional consequences, such as giving animal control extra justification to seize dogs (which ultimately results in welfare concerns for the dogs under BC’s current “dangerous” dog laws), and people abandoning their pets for fear of being liable once their dog has bitten or injured someone. The ALA is also ineffective. To quote Mr. Chief Justice Dickson, as he then was, writing for a unanimous Supreme Court of Canada in R. v. Sault Ste. Marie, [1978] 2 SCR 1299, “[t]here is no evidence that a higher standard of care results from absolute liability.” He also explained that absolute liability serves to punish the innocent and adds nothing to deterrence. I commend Dr. Weaver for his intentions to reduce the number of dog bites. However, the ALA is simply a band-aid solution that fails to resolve the root of a complex problem – irresponsible human behaviour. The only way to ensure responsible (and effective) pet guardianship is through education and with proactive laws, as opposed to reactive and punitive laws such as the ALA. Dog activists in BC have already suggested that local animal control could offer courses on basic human/canine good citizenship, and municipalities can offer a two-tiered license fee, where a license would cost less if the dog passes a temperament test or a canine good citizen test. Encouraging and legislating responsible pet guardianship would be far more effective than threatening liability. Rebeka Breder, general litigation and animal law lawyer at Boughton Law. JUNE 2016 / BARTALK

sections SECTION UPDATE

Keep Current A review of provincial Section meetings International Law and Environmental Law Meeting in Review: March 4, 2016 Speakers: Andrew Gage, Staff Counsel and EDRF Liaison Lawyer, West Coast Environmental Law and Rob Miller, Co-Founder, Miller Titerle + Company LLP Topic: The Paris Climate Change Conference – The Conference, The Agreement and What Comes Next

Immigration Law (Refugee Lawyers Subgroup) Meeting in Review: March 17, 2016 Speaker: Douglas Fortney, Assistant Deputy Chairperson, Refugee Appeal Division – Western Region, Immigration and Refugee Board of Canada Topic: Refugee Appeal Division

ADR Nanaimo Meeting in Review: March 31, 2016 Speaker: Gordon Sloan, Partner in ADR Education Victoria BC Topic: Thorny Issues in Mediation

Young Lawyers Lower Mainland Meeting in Review: April 18, 2016 Speaker: The Honourable Robert J. Bauman of the British Columbia Court of Appeal; The Honourable Chrisopher E. Hinkson of the Supreme Court of British Columbia; and The Honourable Thomas Crabtree of the Provincial Court of British Columbia Event: Annual Judge’s Dinner Topic: Tips from the Bench for Young Lawyers

BARTALK / JUNE 2016

International Law and Environmental Law Friday, March 4th, uOn Andrew Gage, Staff Counsel with West Coast Environmental Law and Rob Miller, co-founder of Miller Titerle + Company LLP, spoke at a joint meeting of the Environmental Law Section and the International Law Section about The Paris Climate Change Conference. Andrew discussed the Conference from his experience as an attendee, and reviewed the resulting Decision Document and Treaty. In particular, Andrew noted the differences between the Paris Agreement and previous climate agreements, Canada’s commitment, and outstanding concerns with the deal. Rob then reviewed legal options to legislate the behavioural change needed to achieve the targets, including cap and trade, emissions trading, legislative sourcing, and carbon capture and sale. Rob reviewed the process of creating and trading a carbon offset in detail, including the lawyer's role in this process. Finally, Rob spoke about some Aboriginal communities’ involvement in setting up carbon offset projects.

Immigration Law (Refugee Lawyers Subgroup) Mr. Douglas Fortney provided

uupdated national and regional statistics on Refugee Appeal Division(“RAD”) appeals and outcomes, identifying trends and changes from last year, as well as regional differences. He provided an overview of recent and ongoing RAD initiatives, identified new Federal Court jurisprudence,

and offered practice tips from the RAD perspective on perfecting an appeal, submitting new evidence, requesting a hearing, submitting post-hearing documents, and making applications for extensions of time to file and perfect. The presentation was followed by a candid exchange of information on practice before the RAD. The Refugee Lawyers Group thanks Mr. Fortney for his willingness to meet and converse with refugee lawyers.

ADR Nanaimo Gordon Sloan, well known mediator and teacher, hosted a rousing round-table discussion at the March 31st, 2016 ADR Nanaimo Section meeting. Gordon holds degrees in both law and religion and is fascinated by the concept of identity and how it manifests itself in human behaviour. This fascination informs his theories of conflict and dispute resolution. Gordon posits that conflict occurs where expectations, goals or objectives diverge. It is also “omnipresent,” whether it is in a latent, emerging or manifest stage. It is when conflict is manifest that it becomes a dispute. Gordon distinguishes between conflict about ideas, information or activities and conflict over deeply held values. Conflict over deeply held values can be experienced as a challenge to identity and may center on moral discord. To resolve a conflict (as opposed to a dispute), the competing values must be understood and reconciled – usually through a gradual process and a corresponding effort to repair damaged relationships.

Young Lawyers Lower Mainland On April 18, 2016, the

uCBABC Young Lawyers –

Lower Mainland Section was honoured and privileged to host a panel presentation by Chief Justice Robert Bauman, Chief Justice Christopher Hinkson and Chief Judge Thomas Crabtree. The topic was “Tips from the Bench for Young Lawyers.” The panel provided invaluable insight on the challenges faced by young advocates and shared advice for effective presentation of a matter in Chambers and in trial. The panel covered a range of topics of concern for young lawyers. Highlights included the necessity of being prepared, how to properly and effectively rely on case authorities, the structure of a persuasive legal argument,

how to make the most of opportunities to learn from senior counsel and the importance of pro bono work. For CBABC members, more detailed information and available minutes from the Section meetings are online at cbabc.org under CBABC Sections & Forums. UPCOMING SECTION MEETINGS Looking for upcoming Section meetings? Check the online Sections Calendar or the CBA PD Resource site regularly as new meetings are added daily. Enrolled members automatically receive notice of their Section’s meetings by email. Enjoy the benefits of membership and enrol in Sections today. CBA members are reminded to keep their profiles up-to-date with the Branch to ensure they receive notices.

UNLIMITED RESOURCES UNLIMITED SAVINGS UNLIMITED ACCESS DON’T FORGET… to re-enrol in Sections when you renew your CBA Membership Choose to enrol in any of our 77 Sections and receive email notifications for meetings, news, and other updates relevant to your preferred Section(s).

DID YOU KNOW… CBABC Membership includes the BC Advantage

Unlimited access to all 77 BC and 41 National Sections and Forums. There are no additional costs to enrol in Sections. Watch for the enrolment reminder notices in the upcoming weeks.

JUNE 2016 / BARTALK

feature KYLE HYNDMAN AND DEANNA OKUN-NACHOFF

Immigration Law in the Trudeau (Junior) Era Has anything changed?

mmigration rocketed to the top of the agenda during the final weeks of the last federal election campaign, in part thanks to heartbreaking images of drowned Syrian children washed up on Aegean beaches amidst the world’s worst refugee crisis in decades. All major parties were forced to make promises of action on a variety of immigration fronts. Now that the Liberals have swept to power, let’s take a look at the practical impact on Canadian immigration law. The most profound change has been one of attitude, summarized by the new minister’s recent statement that “some of our employees have… been led to believe that their main job is to keep people out, whereas we want them to think that their main job is to let people in.”1 This attitude shift, from enforcement and security to recruitment and facilitation, will inform every legal and policy change that follows. The biggest changes so far have been on the refugee file. The new government took action quickly by dropping two controversial appeals, in Canadian Doctors for Refugee Care2 (on the issue of health coverage for refugee claimants) and Y.Z3 (on access to the Refugee Appeal Division for claimants from designated countries of origin). These decisions substantially improve the process for claimants as well as their living

BARTALK / JUNE 2016

conditions while they go through it. On the policy side, the Liberals also announced dramatic increases to the intake of Syrian refugees. In other areas of immigration and citizenship the new government has committed to specific legal changes, including abolishing conditional permanent residence for sponsored spouses and partners, removing the ability to revoke citizenship for terrorism offences, easing the residence requirements for new citizenship applicants, and increasing the quotas for sponsorship of parents and grandparents. However, all of these actions will take place in the legal and policy context left behind by the previous government. In particular, relatively new powers given to the immigration Minister to change law and policy by way of “Ministerial Instruction” continue to exist, and their flexibility and efficiency will be tempting to maintain. These powers enable significant legal and policy changes without the rigorous (and comparatively onerous) parliamentary oversight that comes with regulatory or legislative amendments. Perhaps the biggest change we can expect is that the pace of change itself will slow. In 2012, at the height of the era of government

activism in the field, there were 92 Operational Bulletins (advisories issued to front-line officers notifying them of major legal or policy changes). As of the time of writing this article, since the Liberals took office, there has been only one. Despite obvious ideological differences between the previous and current governments, the practical impact on immigration law will likely be felt primarily in the refugee field, and more on the litigation and operations front than on the legislative or regulatory front.

We may also see a slight rebalancing of immigration priorities away from economic benefit in favour of family reunification. Ultimately we can probably expect a continuing shift in attitude – maybe even a “kinder, gentler” immigration system over time – not likely the sea change of law or policy that re-shaped the immigration field in recent years. Speech to the Canadian Club, 19 January 2016 2 Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651 (CanLII) 3 Y.Z. v. Canada (Citizenship and Immigration), 2015 FC 892 (CanLII) 1

Kyle Hyndman and Deanna Okun-Nachoff, partners at McCrea Immigration Law.

feature JONAS MCKAY AND NEIL SPENCER

Employment Law Issues for Foreign Workers Ensure your clients have fair contracts

s of December 31, 2014, there were 353,448 foreign workers in Canada, compared to 101,662 in 2004 and 52,092 in 1995.1 The number of foreign workers is expected to continue increasing in the near future. In its 2015-2016 Report on Plans and Priorities, Immigration, Refugees and Citizenship Canada (“IRCC”) has targeted 150,000 to 210,000 new foreign worker entries into each calendar year.2 The occupations filled by foreign workers vary by regional labour requirements. For example, in 2014, British Columbia’s top five occupations under the Temporary Foreign Worker Program were: 1. farm workers; 2. nannies; 3. greenhouse workers; 4. actors and comedians; and 5. producers, directors and choreographers.3 The influx of foreign workers into Canada over the past decade has raised a number of unique considerations in employment law. Work permit approval or timing of approval is never certain. Employees and employers should turn their mind to what happens if a work permit is denied or delayed, and agree on what happens to their contractual relationship in such a situation. Many foreign workers have work permits which only allow

them to work for one specific company. Employees and employers in these exclusive working relationships should think about what the foreign worker may need if the employer ends the contract early. Because the worker is restricted from alternative employment, employers can help workers transition through an unexpected or premature departure with relocation (or repatriation) allowances and reasonable severance provisions. Well drafted employment contracts are becoming more important, both to ensure the employees understand the terms of their employment and to protect employers against expensive and lengthy wrongful dismissal claims. Questions employment counsel may ask their clients when reviewing foreign worker contracts include: Does the contract address what happens if the work permit is denied? Will the company owe the worker any money? Does the contract address what happens if the worker is denied Canadian professional licensing requirements, or if the worker loses eligibility part-way through the contract? Does the contract guarantee any length of work?

Does

the contract contain valid termination provisions to limit severance exposure? Is the company providing the worker with relocation allowances? If so, are there any circumstances such as a premature resignation where the worker is required to pay back relocation allowances? Workers and employers who think about these issues and write their agreements down in a contract reduce their chances of costly disputes if the employment relationship ends.

Working together, immigration and employment counsel can ensure their clients have fair employment contracts that take the unique considerations of foreign workers into account. Facts & figures 2014: Immigration Overview – Temporary Residents, Sections 1.1 and 1.2. cic.gc.ca/english/ pdf/2014-Facts-Figures-Temporary.pdf 2 Report on Plans and Priorities 2015– 2016. cic.gc.ca/english/resources/ publications/rpp/2015-2016/#a2.1.2.2 3 Annual Labour Market Impact Assessment statistics 2007-2014, esdc.gc.ca 1

Jonas McKay, employment lawyer at HHBG, and Neil Spencer, immigration lawyer at EY Law LLP, join forces and share some thoughts on employment law issues for foreign workers. JUNE 2016 / BARTALK

feature YUN LI-REILLY

How Can Lawyers Help?

Prerequisite pro bono hours for Bar admission

n the midst of the Syrian refugee crisis and our nation’s decision to assist more than 25,000 of those in need, many lawyers are considering what they can do to help. Canada prides itself on its policies of inclusion and assistance. It is now a leader on the world stage as a result of its stance during the refugee crisis, in stark contrast to its fellow North American counterpart. In what she calls the “resettling” of Canada, Audrey Macklin, Professor of Law and Chair in Human Rights Law at the University of Toronto, suggests that our position and initiatives in the settlement of Syrian refugees signifies “a moment of reclamation of a particular narrative of Canada” as a society of immigrants. However, “resettling” Canada requires a little more than Mr. Trudeau’s airplanes on steroids. The nation is responsible for those who it voluntarily transplants onto Canadian soil. Their resettlement process can certainly benefit from the assistance of already-settled members of Canadian society. If we can accept that Canada is a country that assists those seeking asylum within its borders, then what can lawyers offer toward this endeavour? As individuals, lawyers in BC can donate, volunteer, and even sponsor refugees. But how can the legal profession, as a collective community, assist those in need:

BARTALK / JUNE 2016

to resettle, seek asylum or otherwise? Are there changes that local law societies can implement so as to encourage or incentivize their members to lend a hand? I think the answer is mandatory pro bono hours as a prerequisite for Bar admission. Currently, there are no minimum pro bono requirements for BC lawyers. Understandably so. Perhaps the most valuable asset for legal professionals is time. This asset is difficult to come by – considering all the various demands of practice, professional development, personal health and family life. But do BC lawyers have little time to spare due to these amaranthine demands, or does the

Currently, there are no minimum pro bono requirements for BC lawyers. normative understanding of legal practice have something to do with it? The State of New York requires, inter alia, that students of law complete at least 50 hours of pro bono work before they are called to the Bar. As a result, law schools in surrounding areas have established

tremendous pro bono organizations that provide substantial legal services in their communities. These law students are undoubtedly busy, but their institutions take the pro bono requirement into account and make room for its compliance. If in order to become or remain licensed, each and every law student and practitioner in BC must meet minimum pro bono requirements, then one is perhaps likely to witness normative and attitudinal changes toward this work. If a new requirement for minimum pro bono contributions is too onerous for practising lawyers or their employers, then one option is to require students of law to satisfy a pro bono requirement before they are called. Students may wish to have the freedom of completing these hours at any point during their legal education or articling period. Alternatively, these hours may be completed as a part of the Professional Legal Training Program (“PLTC”), to ensure homogeneity among all BC Bar members, irrespective of where they received their legal education. The BC legal profession offers a number of pro bono programs through the work of admirable volunteers. However, if the legal community – as a self-proclaimed helping profession – wishes to involve many more of its members, it needs a prescribed milieu shift. Yun Li-Reilly is a litigation associate at Farris, Vaughan, Wills & Murphy LLP and a contractor for the BCCA Rule Reform Project and a criminal law lecturer at SFU.

feature BARBARA COLLINS

Integrating Syrian Refugees

The role of the Settlement Mentor

picture is worth a thousand words, or in this case, a thousand actions. The image of little Aylan Kurdi washed up on the beach spurred the Canadian government to open its boarders and accept 25,000 Syrian refugees into the country. Bringing over thousands of people, who speak little English, who come from a conservative Muslim nation, with only the clothes on their backs, created its own challenges. Some refugees arrived via private sponsorship programs organized through citizen and community groups, but many arrived as “Government Assisted Refugees” (“GARs”). Under private programs, a refugee is specifically provided for by a private citizen or group. GARs, on the other hand, have their expenses and resettlement needs taken care of by the government. While the government provides a number of resources for the newly arrived refugees, GARs may not get that one on one connection and friendship that a privately sponsored refugee may receive. To assist GARs with the challenges they face integrating into Canadian society, the Immigrant Services Society of British Columbia has a settlement mentor program that matches volunteers from the community with newly arrived refugees. Refugees who wish to be part of the program are matched with a settlement mentor for a period of six months. The initial meetings

are challenging but exciting as the parties get to know each other, communicating as best they can given many mentors do not speak Arabic. Imagine how daunting it is to come to Canada after living in a Jordanian refugee camp, not understanding the language, and having to figure out how to live in a foreign land. Typically, during their early meetings, a settlement mentor will take the newcomer around the local area to show them where shops and services are, how to use transit and pay bills, and how to navigate the banking and health care systems. After the newcomer has a sense of how to take care of their basic

Refugees who wish to be part of the program are matched with a settlement mentor for a period of six months. needs and has settled in, the settlement mentor will start to expand their outings to include fun days, such as trips to local markets. Aside from simply orientating Syrian refugees in Canadian ways, the settlement mentor and the newcomer form a friendship that is indispensable in making the newcomer

feel welcome. While newcomers are happy to be in Canada, the transition can be particularly hard. Frustration surrounding the inability to communicate in English is one source of angst. And although newcomers will quickly make friends among local Arab speaking Canadians, they may not have anyone to speak English with. Settlement mentors give the newcomer an opportunity to speak with fluent English speakers to improve their language skills. Some Canadians grumble that the Syrians will keep to themselves and not integrate. To successfully integrate Syrians into Canadian society, it is imperative that Canadians reach out and welcome them first. Not doing so is like inviting a person to a party where they know no one, and no one speaking or making an effort to make that guest feel welcome, yet complaining that that guest isn’t friendly. Having a settlement mentor gives the newcomer the opportunity to become familiar with many facets of Canadian society, which will lead to stronger ties to their new homeland. What do settlement mentors get in return? A sense of pride in helping people who have been through horrific events, and the experience of Syrian hospitality… maybe even an amazing home cooked traditional Syrian meal and the strongest, most delicious Arabic coffee this side of Damascus. Barbara Collins is a partner at McMillan LLP practising securities law. She also volunteers as a settlement mentor to a Syrian refugee family. JUNE 2016 / BARTALK

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feature DARCY GOLDEN

The Impermanence of Permanent Residence Criminality and immigration

citizen is a permanent member of our society, with a right to remain in Canada indefinitely, regardless of social status, education, health or criminality (with limited exceptions). Permanent residents (“PRs”) also have the right to remain in Canada indefinitely, but are subject to various requirements, one of which is to remain criminally admissible. Many PRs have lived in Canada for decades without obtaining citizenship because of a belief that their status is secure. PRs who commit certain crimes may be removed from Canada. In theory, the removal of criminals from Canada will protect Canadians from violence and crime. In practice, however, the legislative provisions that define serious criminality and govern the removal process mean that PRs can lose their permanent status and be removed from Canada even when they do not pose a real threat to Canadian society. The provisions even allow for removal of PRs when it will likely put them at risk of serious harm. Two recent legislative amendments (Immigration and Refugee Protection Act, S.C. 2001, c. 27 [s. 64(2) and s. 48(2)]) have jeopardized the durable nature of PR status in Canada. The first amendment governs when PRs can appeal a criminal inadmissibility determination.

BARTALK / JUNE 2016

A PR used to be barred from an appeal if convicted and sentenced in Canada to a term of imprisonment of at least two years. Now, a PR convicted of an offence in Canada will lose the right of appeal if sentenced to a term of imprisonment of at least six months. The second amendment pertains to when officers are required to remove an inadmissible PR. A removals officer used to effect removal “as soon as practicable.” Now, a removals officer must effect removal “as soon as possible,” which has arguably stripped the discretion of officers to defer removals in appropriate circumstances. The effect of these amendments is that PRs who have humanitarian and compassionate considerations to justify overturning an inadmissibility determination or staying a removal no longer have the right to have those considerations assessed. Examples of humanitarian and compassionate considerations include the best interests of children, such as Canadian children residing in Canada, establishment in Canada, employment history, community involvement, rehabilitation, and physical and mental health. The assessment of humanitarian and compassionate considerations

is a safeguard that protects vulnerable PRs and their family members from undue hardship. Consider, for example, a PR who has resided in Canada since she was an infant, who has no ties to her country of citizenship, and who has a serious mental illness. As an adult, she receives a seven-month prison sentence for uttering threats even though she does not harm another person. In that case, she will be subject to removal proceedings without any consideration of her mental health, lack of ties to her country of citizenship, or whether she is a true danger to the public. In the past, her circumstances would have been assessed by an appeal panel and an officer, who would have had the ability to stay or defer her removal. When PRs are removed from Canada without an assessment of humanitarian and compassionate considerations it undermines the nature of permanent resident status. Such a removal process also creates a risk that PRs will be subject to more severe consequences than those contemplated by criminal courts. These consequences are unnecessary from an immigration objective of protecting public safety if the PR does not pose any danger to the public in Canada, and they undermine the successful integration of PRs into Canada as permanent members of our society.

Darcy Golden is a lawyer with Golden & Golden Law practising primarily immigration and refugee law, and wills and estates.

feature JEEVYN DHALIWAL AND DARREN PENNER

The International Mobility Program (“IMP”) Not as fluid as it sounds

egulations amending the Immigration and Refugee Protection Act (“IRPA”) were introduced in 2015 to allow the government greater ability to track and monitor certain foreign nationals working in Canada. Said to be, in part, a protective measure for vulnerable temporary foreign workers (“TFWs”), it institutes a user pay, and rigorous compliance, monitoring, and penalty regime of which employers that rely on TFWs need to be aware. Historically, the government was unable to track and monitor terms and conditions of employment underlying work permit applications that were made at the port of entry, unless they were supported by a Labour Market Impact Assessment (“LMIA”). Under the IMP, participating employers must submit those details, and business information, to Immigration, Refugees, and Citizenship Canada (“IRCC”) in an online Offer of Employment (the “Offer”) and pay a $230 fee before a foreign national applies for a LMIA exempt work permit (or extension of same). The information provided in the Offer allows the government to later conduct an inspection or audit to ensure employer compliance with same. Whereas employers previously had to employ TFWs in “substantially the same” occupation as originally offered, “the same” occupation is now mandated. There is much less latitude to amend terms of employment; it is critical to closely

monitor duties, wages, salary, benefits, hours of work and other terms to ensure compliance throughout the term of employment. Law enforcement authorities now have wide investigative powers such that employers may be subject to on-site visits, records inspections and interviews of the employer and its employees. While employers may respond to preliminary findings, those that are ultimately found to be non-compliant may face substantial fines, a ban from participation in the IMP and have their names publicly noted. Your clients can reduce the risks of IMP participation by: 1. Planning well in advance. Employers that have not registered for an IRCC employer portal account and uploaded an Offer will find TFWs delayed at the port of entry, or otherwise denied entry, until this is done. 2. Carefully reviewing the questions asked in the process of uploading an Offer. Ensuring that all information provided is accurate and is not likely to lead to compliance issues. 3. Paying careful attention to the attestations required of the employer, which include confirmation of compliance with federal/ provincial/territorial laws regulating employment and recruitment of all employees.

4. Ensuring compliance with the Offer and with IRPA. 5. Immediately notifying IRCC of any changes in the conditions of employment (which should not be less favourable than those submitted in the Offer). 6. Keeping all records related to the TFWs’ employment for at least six years after the first day of employment, including those related to communications, hours worked, salary, benefits, and job duties. 7. Making reasonable efforts to ensure a workplace that is free from abuse, and submitting

documentation (i.e. policies, training manuals), if asked, to demonstrate same. The IMP compliance regime is still in its infancy and it is difficult to predict how authorities will react to any ultimate finding of non-compliance. However, if care is taken when submitting the Offer and throughout the employment relationship, the compliance-related risks associated with accessing the IMP can be substantially reduced. Jeevyn Dhaliwal is associate counsel with Larlee Rosenberg, a Vancouver immigration boutique, where her practice is focused on workplace immigration. Darren Penner is associate counsel with Larlee Rosenberg, where his practice is focused on economic and family immigration. JUNE 2016 / BARTALK

feature KATHY SHERRELL

Where is Refugee Resettlement Going in Canada? Operation Syrian Refugee

he photo of a lifeless child washed up on a Turkish beach in September 2015 horrified the world. Subsequent news of his Canadian association galvanized Canada and Canadians to action. Operation Syrian Refugee – Canada’s commitment to resettle 25,000 Syrian refugees by February 29, 2016 – awakened widespread interest in refugee resettlement in Canada, a direction supported by the majority of Canadians. Operation Syrian Refugee represents a historic achievement of which Canada should be proud. The large-scale, rapid resettlement of Syrian refugees offers space for reflection on what is working and what needs improvement. Two policy areas outlined below require immediate attention: Government Transportation Loans and Income Assistance. Government Transportation Loans (“GTL”) cover costs associated with transportation to Canada, overseas medical exams and processing; they are repayable after six weeks and interest bearing after three years. Although the maximum is $10,000 per family, children 19 and older receive their own loan meaning refugee households begin their lives in Canada with significant debt. In spite of low incomes, the GTL program has the highest repayment rate of all government loan programs

BARTALK / JUNE 2016

owing to a combination of factors, including misconceptions about the consequences of non-repayment, as well as cultural and religious beliefs about paying interest. The Government of Canada’s decision to waive the GTL for resettled refugees arriving as part of Operation Syrian Refugee is to be commended; these families will begin the integration process without crippling debt. Yet, the consequence of this action is the establishment of a have/have not situation in which Syrians arriving before November 4th, 2015, privately sponsored Syrian refugees arriving March 1, 2016 or afterwards, and all nonSyrian refugees continue to be saddled with a potentially crippling GTL. As we look to the future, and a renewed commitment to refugees, there is a need to ensure those who have been forced to flee have an opportunity to rebuild their lives in Canada without debt. Resettled refugees receive one year of financial assistance equivalent to provincial income assistance from the federal government, private sponsors or a combination of the two. This financial assistance is critical in providing resettled refugees with a year in which to focus upon learning English, increasing confidence to live and

work in Canada, and rebuilding their lives. Research has demonstrated the positive impact of this assistance, suggesting the buffer year contributes to resettled refugees having higher incomes over the longer period than would be associated with their level of education upon arrival. The arrival of significant numbers of refugees in a short period of time has highlighted the inadequacy of provincial income assistance (“IA”) rates, something that impacts not only resettled refugees but lowincome British Columbians more broadly. For example, a family of four on BC Income Assistance receives $1,101/month (including $401.06 for support and $700.00 for shelter), compared to average rents for a two-bedroom apartment of $1,136 in BC (CMHC 2015). Without an increase to IA rates – and the shelter portion in particular – resettled refugees and other recipients will continue to experience substantial housing affordability challenges and be at risk for homelessness. The Government of Canada has indicated it will increase immigration levels to 1% of the population, including a renewed commitment to humanitarian immigration. Ensuring successful refugee resettlement, however, necessitates consideration of associated policies, including government transportation loans and income assistance. Kathy Sherrell is Associate Director – Settlement Services at ISS of BC; she holds a PhD in Geography with an emphasis on Canadian refugee resettlement.

feature ANTHONY BALDANZA AND GRANT LOPATRIELLO

Regulating Foreign Investment in Canada A primer

In Canada, there are a number of federal and provincial statutes that have the effect of controlling foreign investment in specific industries. The Investment Canada Act (the “Act”), a federal statute, however, is the only law of general application that provides for the review and approval of foreign investments. The Act generally applies to the establishment of new Canadian businesses and to the acquisition of control of existing Canadian businesses by non-Canadians. In most cases, non-Canadian investors are only required to file a notification. However, in some cases, pre-merger approval of the investment based on a “net-benefit to Canada” test is required. The Act also provides for the review of foreign investments that may be injurious to Canada’s national security. (a) NET BENEFIT TO CANADA REVIEW

In general, a transaction that is reviewable may not proceed until approval has been received or is deemed to have been received from the Minister of Canadian Heritage for investments involving cultural businesses and from the Minister of Innovation, Science and Economic Development for all other investments. The Act sets out six factors that are to be taken into account, where relevant, in assessing net benefit to Canada. They are:

Special review threshold rules apply to investments by stateowned enterprises, investments involving cultural businesses and indirect acquisitions. (b) NATIONAL SECURITY REVIEW

the

effect of the investment on the level and nature of economic activity in Canada; the degree and significance of Canadian participation in the Canadian business and in any affected industry in Canada; the effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety in Canada; the effect of the investment on competition within any industry in Canada; the compatibility of the investment with national industrial, economic and cultural policies, taking into consideration the corresponding policies of any province likely to be significantly affected by the investment; and the contribution of the investment to Canada’s ability to compete in world markets. In general, the threshold for the review of a direct acquisition of control of a Canadian business (other than a Canadian business that is engaged in a cultural business) by a World Trade Organization (“WTO”) investor or where the Canadian business being acquired is controlled by a WTO investor is C$600 million of transaction value (in 2016).

An investment may be subject to a “national security” review if the Minister of Innovation, Science and Economic Development has reasonable grounds to believe that an investment by a non-Canadian could be injurious to Canada’s national security.

While the Conservatives were in power, the foreign investment approval process under the Act presented considerable challenges to foreign investors in a number of transactions. It is too early to tell, however, whether the current Liberal government is likely to continue the assertive stance of the Conservative Party, or revert to the historical, more liberal, Liberal approach. In either event, prospective investors are well-advised to take the approval process seriously. Anthony Baldanza is a partner and Grant LoPatriello is an associate in Fasken Martineau DuMoulin LLP’s Toronto office and both are members of the firm’s Antitrust/Competition & Marketing Law group. JUNE 2016 / BARTALK

news&events Law Week 2016 Recap “MEET THE CHIEFS” STUDENT FORUM

EVENT RECAP by Meera Thakrar, Immigration Law Section Vice-Chair

CBA's National Immigration Law Conference Hundreds of delegates from across Canada attended CBA’s National Immigration Law Conference from April 7–9 in Vancouver. The conference was sold out, with a high number of attendees from government departments as well as members of the private Bar and the Department of Justice. Several well-attended social events provided opportunity for networking, and delegates were able to enjoy the scenery and all that Vancouver has to offer over a weekend of glorious spring sunshine. A highlight of the conference was the keynote address by The Honorable John McCallum, Minister of Immigration, Refugees and Citizenship Canada (“IRCC”). Minister MacCallum highlighted changes to come to both citizenship and permanent residence processing, which were welcomed by delegates. He also addressed challenging questions about future policy directions that will be taken by IRCC to address ongoing concerns such as lengthy wait times for family class sponsorship applications. The growing use of technology by government was a theme throughout the conference. Speakers on several panels dedicated signifi22

BARTALK / JUNE 2016

cant time to mastery of “The Portal,” used by IRCC for online processing of myriad applications. However, government speakers throughout the conference also conceded that these systems are not yet perfect, which created an opportunity for open dialogue on improvements. Another theme during the conference was the increased regulatory powers given to government in recent years to monitor compliance and take enforcement action. This is reflected in trends in corporate immigration practice, where we regularly advise employers regarding audits and inspections, as well as with developments around citizenship revocation. These are quickly developing areas of law, and panels featured active discussions. The conference closed with a compelling presentation by Dr. Samantha Nutt, Founder and Executive Director of War Child Canada. Dr. Nutt’s discussion was far reaching, drawing connections between war and terrorism and threats to global health, while providing useful dialogue about the role judges and lawyers can play in the ambitious work undertaken by her organization.

It was a full house at CBC for the “Meet the Chiefs” Student Forum with more than 100 students interacting with Chief Justice Bauman of BC’s Court of Appeal, Chief Justice Hinkson of the BC Supreme Court and Chief Judge Crabtree of the BC Provincial Court.

MOCK TRIAL IN KAMLOOPS

An eager courtroom listens to Darth Vader, a witness at the “Star Wars” themed Mock Trial in Kamloops.

BARRY SULLIVAN LAW CUP

2016 Barry Sullivan Law Cup winner, Gabrielle Fajardo of St. Thomas More Collegiate accepts the Barry Sullivan Law Cup from Mr. Sullivan’s daughters.

NEWS

LAW WEEK RECAP

CBABC Staff and Volunteers Donate Six Backpacks Full of School Supplies to a Syrian Refugee Family

Dial-A-Lawyer Day Stats

As part of Law Week 2016, Dial-A-Lawyer Day (“DALD”) was held on Saturday April 16, from 10am to 2pm at CBABC Branch office. The total number of calls answered by the operators was 370, among which 280 were directed to 20 lawyers for summary advice. Summary of calls on record:

STATS*

2016

Calls Areas of law 85 Wills, Estates & Trust 66 Family 27 Employment 20 Tort & MVA 19 Immigration 18 Business 12 Criminal 8 Civil Litigation Other/Redirected Calls 115 How the callers heard about DALD Media Website Paper SUCCESS Word of mouth Facebook/Twitter LRS Other

128 48 32 18 16 12 5 111

*Stats are based on CASH+ reports and operators’ notes. Thank you to all of the volunteers!

The kids were all very excited with the stuffies perched in the top of each of their backpack and all the pens, markers, crayons and note books stuffed in the bags but the funnest one to watch was the youngest, Ahmed. As soon as he explored all the pouches of his pack he started practising putting it on and taking it off. He experimented filling it with various items then walking around the house, returning to check the inventory and then once again donning his supplies for another test run. At one point Achul, the interpreter, had to to explain to Ahmed that if he put any more books in his pack he could fall backwards.

For more on this story, read page 5. NEWS

Local Church Helps Out Syrian Refugee Families Every week, a local church hosts five refugee families at their Sunday night community dinner. On April 10, however, they hosted a special lunch to connect the community with refugee families. They put the invite out thinking they would get 25-40 people to join them for lunch – they ended up with more than 120 refugees for lunch. It was awesome! Each table had a couple or family from their church hosting guests and the Google translators were running at full speed. Some great connections were made and many people are now working directly with refugee families helping them with paperwork, doctors' appointments and creating cross cultural connections. They have one funny story they wanted to share. A church member was visiting a family she met at the lunch and they handed her an official looking government envelope and asked what it was. The family had not even opened the envelop for some reason, but when they did, it was statement with a Child Tax Credit cheque at the bottom for $650+. She explained it was a child tax credit and the family were all very solemn. They kept pointing at the amount saying that is so much money. They were very concerned with how much it was. After a few minutes of confusion, they clarified that it was money for them not a bill. The mood changed quickly and the family exclaimed "Canada is a good country."

JUNE 2016 / BARTALK

news&events NEWS

CBABC Women Lawyers Forum News CBABC WOMEN LAWYERS FORUM’S INAUGURAL BOOK CLUB AND POTLUCK On Tuesday, April 5, 2016 the CBABC WLF met in the boardroom of DLA Piper for a potluck of appetizers, wine and desserts and discussion of The Happy Lawyer – Making a Good Life in the Law, by Nancy Levit and Douglas O. Linder. Linda K. Robertson facilitated a lively discussion among the participants, of the book generally and of its strategies to increase happiness in your career and your life. The discussion included whether there is a typical lawyer personality and if that affects lawyers’ ability to find happiness in their work as well as the concept of a happiness set point and ways to increase it. CBABC WOMEN LAWYERS FORUM’S EDUCATION DINNER The CBABC WLF held its Spring Education Event “Lawyers as Leaders” on Wednesday, April 20, 2016 at the Metropolitan Hotel. A significant number of female lawyers turned out to hear Kathy Corrigan, MLA for Burnaby-Deer Lake, Brenda Edwards, Judicial Justice, Board Member, Environmental Appeal Board, Health Professions Review Board, Forest Appeals Commission and Oil and Gas Appeal Tribunal, and Charlene Ripley, Executive Vice President, General Counsel at Goldcorp. They shared their stories, including what challenges they have faced, their successes and what it takes to be elected or appointed to these positions.

NEWS

CLEBC Update FEDERAL COURT AND FEDERAL COURT OF APPEAL PRACTICE 2016 Don’t miss this comprehensive program on matters relating to practice in the Federal Court and the Federal Court of Appeal! The Federal Court continues to play a unique role in Canada’s judicial landscape. This “beyond the fundamentals” course will be of interest to practitioners at all levels of experience. You will

BARTALK / JUNE 2016

have a golden opportunity to learn about Federal Court practice from senior lawyers and members of both Federal Court Benches. Learn about... how to answer that allimportant first question: should you be in Federal Court in the first place? a newly emerging phenomenon — class actions in the Federal Court the legacy of the SCC decision in Dunsmuir in the Federal Courts public interest interventions in the Federal Court

national

security issues before the Federal Court the Federal Court and environmentally contentious projects current developments in Aboriginal Law in the Federal Court Attend in person or by live webinar on Friday, June 17, 2016, or join our CLE Summer Series rebroadcast on Wednesday, July 27, 2016. To register, or for more information, contact CLEBC Customer Service at cle.bc.ca.

BC LEGISLATIVE UPDATE

ACTS IN FORCE

Current from February 24, 2016 to May 6, 2016 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org. BUDGET MEASURES IMPLEMENTATION ACT, 2016, S.B.C. 2016, C. 3 (BILL 10) Section 15 is in force March 16, 2016 POOLED REGISTERED PENSION PLANS ACT, S.B.C. 2014, C. 17 (BILL 9) Section 1 and part of section 3 are in force May 3, 2016. Section 2, remainder of section 3 and sections 4 to 11, 13(a), (c) and (d), 14 to 21, 24, 28 and 30 are in force May 4, 2016 WATER SUSTAINABILITY ACT, S.B.C. 2014, C. 15 (BILL 18) Act, except section 18, is in force February 29, 2016

BRANCH & BAR

Calendar

JUNE

3 The 2016 Victoria Professionals' Charity Classic — Victoria 10 Battle of the Bar Bands — Vancouver 14 CBABC PD Webinar: Business Issues in Family Law 15 CBABC PD Seminar: Criminal Justice-Vancouver Section Annual Dinner Event — Vancouver 17 The Lawyers Assistance Program 16th Annual Gratitude Lunch — Vancouver 17 National Aboriginal Day with the CBABC Aboriginal Lawyers Forum at the Auction Reception — Vancouver 18 June 2016 Provincial Council Meeting — Richmond 23-24 Financing Service Delivery for First Nations: Law, Reform and Models that Work — Vancouver 23 New Westminster Fraser Valley Bar Golf Classic 2016 — Surrey

JULY 7 Executive Committee Meeting — Vancouver

2016 Readers Survey Don't forget to participate in our BarTalk Readers Survey, which will be available online at bartalkonline.org and cbabc.org plus via the CBABC News & Jobs email.

Participate... and you will be automatically entered for a chance to win an iPad

Mini.

We want to make BarTalk the best it can be so please help us out by participating and providing feedback and suggestions in the survey.

JUNE 2016 / BARTALK

news&events TIPS FROM

Keeping up with the pace at which immigration law changes is probably a normal part of your immigration practice. Not only do you need to be familiar with the Immigration and Refugee Protection Act and its regulations, you also need to be up-to-date with the relevant ministerial orders delivered in the form of operational bulletins and program delivery updates. Beyond these resources, Courthouse Libraries has a number of tools you may find beneficial to your practice. For clients or individuals looking for accurate and easy to understand information on immigration law topics, Clicklaw.bc.ca is a great starting point. Answers to frequently asked questions are written in plain-language and are available in many languages. You can browse through the various topics and questions under the headings “Your daily life – Rights & Citizenship” or “Your Community – Immigrants & Refugees” or perform a specific search. If your client is charged with a criminal offence during their application for permanent residency or refugee status, Rangefindr.ca can be an effective tool for looking at what consequences the criminal charge may have on a client’s immigration matter. To perform this search, select “Discusses Immigration Consequence” under the heading “Judgment,” along with the applicable charged offence and any number of criteria unique to your client’s file. This resource provides an effective way to determine sentencing ranges and other notable information. Courthouse Libraries has a subscription to the resource and you can access the site from any of our library computers.

BARTALK / JUNE 2016

WHAT ARE YOUR TOP FIVE’S? BarTalk’s Editorial Board continues with another top five list.

TOP FIVE LAW TV SERIES: 1. Suits 2. Boston Legal 3. Law and Order 4. The Good Wife 5. How to Get Away with Murder Send bartalk@cbabc.org your top five list(s) e.g. top five authors, law songs, productivity apps, management apps, etc. and we will publish them in an upcoming issue.

announcements LAW FOUNDATION OF BRITISH COLUMBIA

Immigration Legal Services Funded by the Law Foundation of BC

The Law Foundation is proud of its longstanding funding for programs and projects that support immigrants and refugees in British Columbia. Various programs funded by the Law Foundation have immigrants and refugees as clients; however, some have a particular focus in that work. For more than 20 years, the Law Foundation has funded MOSAIC to provide services not covered by legal aid to immigrants and refugees who cannot afford a lawyer in the areas of immigration or poverty law. The MOSAIC program is a valuable legal service for clients often unfamiliar with the Canadian legal system, have limited English language skills, and face other barriers that restrict their access to justice. The legal advocate at MOSAIC, Miriam Dell’Orto, has worked with the program for 11 years and last year provided legal advice, information and representation services for approximately 600 cases. West Coast Domestic Workers’ Association (“WCDWA”) is another longstanding program funded by the Law Foundation. Since 1990, the WCDWA has provided legal information, education and representation primarily to live-in caregivers, but also to other

temporary foreign workers. In 2015, they assisted more than 2000 clients. About 95% of WCDWA’s clients are women, and most are visible minorities. Caregivers tend to be isolated in their employer’s homes, face cultural and language barriers, financial constraints, and may be reluctant to speak up about their employment conditions for fear of losing their jobs and the opportunity to apply for permanent residence.

Thus, they are more vulnerable to economic and sexual exploitation, harassment, and intimidation by employers and employment agencies. The services of WCDWA are key to ensuring access to justice for these workers. Over the past two years, the Law Foundation has also funded two time-limited projects designed to address the needs

of immigrants and refugees. In 2014-2015, Kinbrace Community Society received support to write, translate and print Refugee Hearing Preparation: A Guide for Refugee Claimants. The Guide provides information about legal issues, clearly sets out important timelines, lists key resources for refugee claimants, and provides practical information about how best to prepare for a refugee hearing. Originally launched in BC in four languages with the help of the Law Foundation, the Guide is now available in the six refugee determination centres in Canada in 10 languages. Seen by many as a valuable resource, the Guide is available in print and online at kinbrace.ca/rhp-guide. Last year, the Foundation provided funding to Kelowna Community Resources to deliver a series of workshops for 80 immigrants and employers in the Central Okanagan region where many temporary foreign workers are employed in local orchards and vineyards. The workshop provided information about important employment law issues as well as family law, debt and bankruptcy, small claims and citizenship. The Law Foundation believes that the advocacy and immigration work done by the groups it funds is an important contribution to protecting the legal rights of immigrants and refugees in British Columbia.

JUNE 2016 / BARTALK

professionaldevelopment

WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\

CBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, advance one’s career, practice and business. We pride ourselves on bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management components for 2016 Law Society reporting.

Upcoming In-person Seminars IN PARTNERSHIP WITH THE CBABC PROFESSIONAL DEVELOPMENT

Criminal Justice-Vancouver Section Annual Dinner Event Date: June 15, 2016 Location: Law Courts Inn, Vancouver Keynote Speaker: Adam Foss, Suffolk County District Attorney's Office (Boston, Massachusetts)

Thank You for Being at the CBABC Branch Conference 2016 in Whistler! What our participants say: “Speakers were excellent” “Very nice event…” “Interesting range of session topics and great presentations” See you at the next Branch Conference: LAS VEGAS, NOVEMBER 2017!

On Demand CPD Catch up on your CPD hours during the summer months!

RECENTLY ADDED WEBINAR REPEATS: At

the Crossroads: When Personal Injury & Criminal Law Collide The XFD Files – Examination for Discovery, the Truth is out There Ready, Set, Go: the New BC Societies Act Trial without Error – Top Trial Preparation Tips & Techniques Check our complete library for available on-demand webinar repeats and e-learning modules.

BARTALK / JUNE 2016

Upcoming Webinars Business Issues in Family Law Date: June 14, 2016 Speakers: Paul Lermitte, Legacy Family Office of Assante Wealth Management ; Josephine Nadel, Owen Bird Law Corporation Moderator: Meghan Maddigan, Law Society of BC

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barmoves Who’s Moving Where and When

SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND A HIGH-RESOLUTION PHOTO TO BARTALK@CBABC.ORG NOW. TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1606.

Graham Scott

Stewart Lockwood

joined McCullough O'Connor Irwin LLP as associate counsel. Graham will continue to practise corporate and securities law.

joined McCullough O'Connor Irwin LLP and associate counsel. Stewart will continue to practise corporate and securities law.

Karen L. Carteri

Katie Blundy

joined the partnership at Nathanson, Schachter & Thompson LLP after heading the Vancouver litigation group of a large national firm. Carteri was called to the BC Bar in 2002.

joined McCullough O'Connor Irwin LLP as an associate of the firm. Katie will be practising corporate and securities law.

Helmut Johannsen

Krisha Dhaliwal

joined Singleton Urquhart’s construction and ADR groups as associate counsel. Helmut brings extensive experience working with clients on construction, infrastructure, procurement and ADR projects.

is now an associate at Larlee Rosenberg in Vancouver, where she articled. She works in all areas of immigration, with a particular interest in appeals and judicial reviews.

BARTALK / JUNE 2016

newmembers March & April 2016 Associate

Graham C. Laschuk

John C. Shaffer

Amanda Magee

Darnell & Company Law Office Langley

Anwarullah Mujtabah

Amalia Schon

Law Students Vikas Aggarwal

Vancouver

Law Office of John C. Shaffer, Jr. Bellevue

Lawyers Monica Dosanjh

Bowman Law Centre Delta Debra Anne Drissell

Ministry of Justice Criminal Justice Branch Kelowna Brenda Kaine

Park Place Law Nanaimo

Delta

Lesperance Mendes Vancouver MacLean Law Vancouver

Articling Students Leah Burry

Darnell & Company Law Office Langley Marc Dixon

Maple Ridge

Francis Lepp

Surrey

Karuna Belani

Coquitlam

Zafar Ahmad Khan Chaudhry

Coquitlam

Robert Noel Hainsworth

Powell River

Eoin Logan

Tomas J. Moggan

Vancouver

Alison Moore

Victoria Victoria

Georges F. Prat Megan Proctor

Vancouver

Janta Quigley

Victoria

Trevor Shum

Vancouver

Mengyu Zhang

Vancouver

JUNE 2016 / BARTALK

RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3