BarTalk | December 2019 - Media Law

December 2019 | bartalkonline.org

Media Law

REGULATING DIGITAL MEDIA | JOURNALIST SOURCE PROTECTION

FROM THE PRESIDENT KEN ARMSTRONG

Social Media and the Decline of Civility Don’t @ me.

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CYMI1 I’m on twitter (@ UALawGrad) and, as far as it goes, I’m intermittently active.

As you will read elsewhere, social media is a wild and widely unregulated arena rife with defamation (Vickers, infra; Burnett, infra). As far as a repository for the marketplace of ideas upon which free speech, a foundation of democracy, is built: social media is also rife with fake news and gross incivility; hardly a recipe for successful dialogue. We have seen the effect of social media on election campaigning and, arguably, elections. The uncivil discourse on social media means discussion and debate essentially devolves to childish arguing. Just as I worry about the effect of fake news on election outcomes, I worry about the effect of incivility in social media on election campaigns. We are not engaging in constructive dialogue when we are being uncivil to each other. We are not contributing to the marketplace of ideas when we’re simply shouting at each other.

Incivility and civility in social media are increasingly frequently being studied. Teachers in British Columbia are being taught on Social Media Wellness: Helping Teens and Tweens Thrive in an Unbalanced Digital World. Civil interactions have been found to increase users’ experiences. (Antoci, Bonelli, Paglieri & Reggiani, “Civility and Trust in Social Media,” Journal of Economic Behaviour & Organization 160:83-99 January 2019). It seems like civility on social media increases happiness with social media, which seems intuitive. It’s a good reminder 2

BARTALK / DECEMBER 2019

that civility generally contributes to happiness and wellness.

I believe part of the reason for incivility on social media is the pure anonymity of it. You do not need to identify yourself on many social media platforms. Twitter users can be, and often are, completely anonymous. And if you’re anonymous, there’s no accountability for incivility. However, I fear incivility on social media, and the lack of accountability for incivility on social media, may empower some to be increasingly uncivil in the real world.

As lawyers, we have certain professional obligations, including basic obligations to be courteous and civil to the court, to our clients, to adverse litigants, to witnesses, and to each other. Much has been written and discussed about the tension between this duty and the duty to zealously advocate for our client (see Groia v. Law Society of Upper Canada 2018 SCC 27). However, we all know we have a positive duty to be courteous and civil to each other in our day-to-day communications.

Does the duty to be courteous and civil to each other require us to be courteous and civil in our social media interactions, particularly if it is a named professional account?

Missing in this discussion, though, is civility within our own workplaces. In this context, at least, civility can include a conscious

awareness of the effect of one’s thoughts, actions, words and intentions on others. It can also include a consistent effort to adopt and exhibit civil behaviour.2 I heard an interesting presentation at the July Benchers’ meeting about the business case for civility. Dr. Lew Bayer presented her argument that organizations who implemented civility programs saw an increase in profit and an increase in staff retention and engagement. Dr. Bayer posited there are four core competencies necessary to establish a culture of civility: social intelligence, system thinking, cultural competence and continuous learning.

Last issue I wrote about the importance of young lawyers getting connected. We also know civility in the workplace increases retention generally. There is no reason to believe that wouldn’t be true of lawyers generally, including young lawyers. If followed, more civility at the Bar and in the courtroom would increase retention of young lawyers.

ICYMI is a text message/social media abbreviation for “In case you missed it” because there are character limits.

2 This definition is adopted from civilityexperts.com.

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Ken Armstrong

president@cbabc.org

DECEMBER 2019

VOLUME 31 / NUMBER 6

Contents

Departments

2

FROM THE PRESIDENT Social Media and the Decline of Civility

by Ken Armstrong

5

EXECUTIVE DIRECTOR Connecting With Your CBABC Colleagues

by Kerry Simmons, QC

8

INDIGENOUS MATTERS Tsleil-Waututh Nation on Media Relations

by Chief Leah George-Wilson

9

BC Leads Canada on the Implementation of the United Nations Declaration of the Rights of Indigenous Peoples

by Frances Rosner

14 NOTHING OFFICIAL

Emotional Contagion and the 2019 Election

by Tony Wilson, QC 26 PRACTICE TALK

Take Advantage of Social Media

by David J. Bilinsky 27 DAVE’S TECH TIPS

Sections

Inside This Issue DEFAMATION. Now that I have your attention, welcome to our issue on Media Law, focused on the legal ins-and-outs of the ways in which we communicate.

Get tips for media relations, a primer on protecting sources for journalism, a more nuanced understanding of fake news and the idea of “emotional contagion,” and more information about both edges of social media. Be introduced to the unique and progressive European idea of “data obscurity.” Learn about the rise of defamation cases, efforts to reform the area of law, and the policy considerations those efforts engage. Learn what CBABC president Ken Armstrong’s Twitter handle is, and behold his excellent use of acronyms. TL; DR: Media Law is the law of the way we communicate. Like law, communication is involved in nearly every area of human endeavour, which engenders a desire to understand and control the domain.

10 SECTION UPDATE

Features 6

RETHINKING DEFAMATION

by Daniel W. Burnett, QC

7

THE RISE OF DEFAMATION IN THE ERA OF SOCIAL MEDIA

by Brian Vickers

12 REGULATING DIGITAL MEDIA

by Jon Festinger, QC 13 JOURNALIST SOURCE PROTECTION

by Dan Coles 18 YOU DON’T HAVE THE RIGHT TO BE FORGOTTEN

by Lisa Picotte-Li

Guests

16 IMPROVING ACCESS TO JUSTICE

by Michael Butterfield 20 MAY YOU FORECLOSE ON DEMAND?

by Anahita Tajadod

— Brandon D. Hastings Chair, BarTalk Editorial Board

News and Events 4 The Network Effect

Fitting in at a New Firm 22 Bringing the Privacy Act into the Digital Age

2019 Georges A. Goyer, QC Memorial Award for Distinguished Service

The 2020 Lawyers Show 23 CBABC Advocacy Work

Branch & Bar Calendar

WLF BC Update 24 CLEBC Update

Tips from Courthouse Libraries BC

Also in This Issue

21 25 28 31

PROFESSIONAL DEVELOPMENT LAW FOUNDATION OF BRITISH COLUMBIA BAR MOVES DISPLAY ADS

Click here for LEGAL OPPORTUNITIES and ads DECEMBER 2019 / BARTALK

3

news BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Brandon Hastings

CBA NATIONAL MAGAZINE — THE PRACTICE — YOUNG LAWYERS

The Network Effect

EDITORIAL BOARD MEMBERS

Tonie Beharrell Robert Diab Eryn Jackson Greg Palm Lisa Picotte-Li Randy Robinson Crystal Tomusiak Sean Vanderfluit

BARTALK SENIOR EDITOR

Carolyn Lefebvre

STAFF CONTRIBUTORS

Travis Dudfield Kent Hurl Christopher LaPrairie Arianne Moran Sanjit Purewal The BC Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, BC V6B 5T3

When building a professional network, remember that deep bonds are better than shallow ties.

Learning to network well is one of the most important things a new lawyer can do. It helps build long-term relationships, open doors and jumpstart a law career.

The best networkers are given more business opportunities and advance more quickly. So, even in law school, students are encouraged to attend legal events, cocktail parties, and use online networking sites. Unfortunately, many find it awkward, uncomfortable and even self-serving. But it doesn’t have to be that way.

uuu Read more

Tel: 604-687-3404 Toll-free (in BC): 1-888-687-3404 bartalk@cbabc.org

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org.

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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 nearly 7,200 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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BARTALK / DECEMBER 2019

CBA NATIONAL MAGAZINE — THE PRACTICE — YOUNG LAWYERS

Fitting in at a New Firm A young lawyer’s first law firm job is a time of both triumph and terror. The triumph comes from having survived law school, passed the Bar exam and completed articling (or the Law Practice Program). The terror lies in taking that first step into a new environment.

uuu Read more about getting up

to speed in your first law firm

Write Us Send your Letter to the Editor to: Deborah Carfrae — BarTalk Editor bartalk@cbabc.org

Membership Enquiries members@cbabc.org

Advertising Opportunities

Info Changes

ads@cbabc.org

data@cbabc.org

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Connecting With Your CBABC Colleagues

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o state the obvious, we are inundated with information and messaging every single day.

Whether you are checking your phone for the latest stock data, viewing last night’s sports results on your computer while grabbing a bite to eat, or (gasp!) reading a paper copy of a newspaper, you are receiving information in a form intended to reach masses of people.

In other words, media.

As your professional association, CBABC needs to reach all 7,200 members to invite participation in consultations about law and professional reform, share information about current professional development, and account to you about how your membership dollars are used. You’ve told us that email is the best way to get this information to you but, you’ve also asked us not to send too much email. For every person who reluctantly admits that they delete emails from us, there is another person who takes action after reading our email and gets something more out of their CBABC membership.

So what to do? First of all, while members of the CBA share common values about being a professional, each one is comfortable using different tools for different purposes.

That’s why CBABC has BarTalk, Twitter, eblasts, Instagram, Facebook, and LinkedIn. If you want bite-size, quick information, connect there. If you want to see more, cbabc.org is undergoing a refresh, and you can always find the detailed submissions members make

to government and the Law Society to delve deeper.

Even better than those online tools, however, are good, old personal gatherings and one-to-one conversations. I say “even better” because you also tell us that you crave inperson connections with your colleagues. It is much more satisfying. You learn more. You might even relax a bit. At CBABC, we believe in community engagement to support your professional and personal well-being.

That’s why all your elected representatives and Section chairs are ready to talk to you about CBABC. They can connect you to people who can answer your questions and forward your ideas to the people who can turn them into action. These members make sure they are keeping up with developments in the law and changes in the profession and they want to hear from you. You can find them at every Section meeting (online or in person), local Bar association meetings, and on the other end of your phone.

This year, we have renewed our commitment to meet you in the communities where you work. We have in-person professional development in Prince George, Parksville, Nelson, Kamloops, Duncan, Vancouver, Coquitlam, Surrey, Victoria, Nanaimo, and Kelowna, with more to come.

Roadtrippin’ with the President will bring Ken Armstrong to Smithers,

Terrace, Prince Rupert, Courtenay, Comox and Campbell River. He wants to know what you think about the shortage of lawyers in your communities and the addition of nonlawyers providing some legal services. Get ready to tell him what works and what doesn’t, and what resources you need.

With all of your incredible support we matched lawyers with more than 350 law students this fall in mentorship programs.

This personal contact will again make a difference in preparing students for practice.

CBABC will be back at the law schools in the new year with tips to help law students use the benefit of membership to secure articles and on how to succeed during their articling year.

As you can see, there are lots of ways to connect with your CBABC colleagues, but I need your help to make sure you are getting exactly what you need. Your membership includes unlimited enrollment in Sections, but only if you keep your enrollment up to date. Go to cbabc.org/sections/enroll to make those changes so you know when to get to the Section meetings that are most relevant for you.

Kerry L. Simmons, QC

ksimmons@cbabc.org DECEMBER 2019 / BARTALK

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feature

DANIEL W. BURNETT, QC

Rethinking Defamation

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truth) and to the Internet service provider, who cannot really be expected to monitor and investigate tens of thousands of postings each month.

Could there be a streamlined but fair system for a notice and takedown?

The Law Commission of Ontario took up the challenge, and since early 2016 has been engaging with defamation lawyers across the country, judges and stakeholders on all sides in a deep examination, going right to some core policies underlying defamation law. Other provinces are watching. The recommendations, expected in the coming months, may well influence uniform legislation across the country.

In contrast, consider those who have Internet pages where third parties can post comments. That includes all us with Facebook pages, right up to a major media outlet.

When should there be liability for what others post on one’s electronic space? Decisions in this area are few in Canada, and don’t give very satisfactory guidance.

More importantly, they are anchored in an attempt to graft old law onto new problems, rather than the policy question of what the future should look like. That is for the legislature.

efamation law has long been a thicket of ancient rules and curious distinctions.

It was developed hundreds of years before the advent of radio, television and the Internet. In England, a major reform took place in 2013, addressing issues such as the liability of online intermediaries. In Canada, the need for reform is every bit as pressing, and the rules differ even between provinces.

Some key areas of possible reform are Internet publications, notice and limitations, access to justice, libel versus slander, and simplifying defences such as fair comment and responsible communication.

Consider, for example, someone who is the victim of terrible online statements, often by anonymous writers using an Internet forum located outside Canada, posted from a public library. A remedy is elusive to say the least. How can the law be improved to assist that victim without incurring massive cost? How can the improvement also preserve fairness to the author (who might just be telling the 6

BARTALK / DECEMBER 2019

In the USA, intermediaries are treated as mere conduits and are immune in virtually all cases under the Communications Decency Act. In the UK reforms, primacy was placed on putting responsibility on authors where known, and not intermediaries. No Canadian defamation statute has yet addressed this vital question.

There are further areas needing attention. For example, a spoken word defamation (slander) is treated in law quite differently from written defamation (libel). For one thing, libel comes with a presumption of damages and slander does not. The complications

run deeper, however, as there are a number of exceptions, in which slander is treated like libel in law.

The exceptions include statements disparaging a woman’s chastity, or alleging a crime, or claiming that someone has a contagious disease.

It might be time to modernize and drop the distinction altogether.

Also, the rules on giving libel notices and limitations vary from province to province so much that we’ve had publications in Ontario newspapers (where there must be a libel notice within six weeks for media publications) end up in the BC courts (where there is no notice requirement).

When everything is on the Internet, there is arguably a cause of action every place it is read. That leads to libel tourism issues, which can be minimized if the provincial laws are in synch.

With international libel tourism, the law has tended to permit suits in Canada despite tenuous connections, although Supreme Court’s most recent decision, Haaretz.com v.

Goldhar, 2018 SCC 28, has shifted the balance to demand more of international plaintiffs. Still, it represents incremental change, when legislation may be necessary.

These are just some of the areas needing attention from legislators. The Ontario initiative might pave the way, and is worth watching: bit.ly/bt1912p6-1.

Over more than 25 years, Daniel W. Burnett, QC has become one of the most prominent lawyers in the country in the areas of freedom of expression and media law, and has been lead counsel on landmark Supreme Court of Canada cases.

feature

BRIAN VICKERS

The Rise of Defamation in the Era of Social Media

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n today’s era of social media, the ease, affordability, and anonymity by which someone can access the Internet is cause for concern. Particularly as it relates to the volatile sharing capacity of ubiquitous social media outlets, such as Facebook and Twitter, which have led to a corresponding increase in defamation cases. While one may perceive social media sites as a safe forum to discuss pressing concerns with friends, most people are blissfully unaware that an errant or offhanded post may have devastating ramifications on an innocent third party. People are also generally blind to the lengths the court has gone to denounce such conduct in hopes of sending a chilling message to deter such conduct in the future.

The rise in the number of defamation cases is not surprising when one considers the damning effects words can have on a person’s life.

This effect was aptly summarized by the Supreme Court of Canada in the leading case of Hill v. Church of Scientology of Toronto, [1995] S.C.R. 1130 where Justice Cory stated as follows: A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime. Seldom does the defamed person have the opportunity of replying and correcting the record in a manner that will truly remedy the situation.

The unfortunate reality is that any individual with a quarter or a library

card can assume an alias, access the Internet, and commence a defamatory campaign against an innocent person. Accordingly, when you combine this “cancerous evil” with a universal social media platform like Facebook, which hosts more than one billion daily users, the effects can be catastrophic. The court is intimately aware of this concern and, as observed by the following quote of Justice Saunders in Pritchard v. Van Nes, 2016 BCSC 686 (“Pritchard”), are responding appropriately to denounce such conduct on social media: In my view, the potential in the use of Internet-based social media platforms for reputations to be ruined in an instant, through publication of defamatory statements to

Most people are blissfully unaware that an errant or offhanded post may have devastating ramifications on an innocent third party. a virtually limitless audience, ought to lead to the common law responding, incrementally, in the direction of extending protection against harm in appropriate cases.

In recognition of the court’s increasing duty to respond to this discouraging

reality, Justice Saunders in Pritchard expanded the traditional parameters of defamation by finding people liable for not only their own defamatory posts, but also for the comments made by others on your social media thread provided the following elements were established: 1. You have actual knowledge of the defamatory material posted by the third party; 2. There is a deliberate act not to remove the material, which can include inaction in the face of actual knowledge; and 3. You have power and control over the defamatory content.

In a nutshell, in most conceivable situations, you will have control over your own social media page. As a result, if you incite comments from others and, after viewing them, fail to delete them within a reasonable time, you could be liable for those comments.

While Facebook and other social media sites provide a forum to post your views to the world at large, your ability to use those forums comes with the responsibility to make sure that you do not defame innocent parties. Now, with decisions like Pritchard¸ it also means that you are responsible for making sure others don’t post defamatory comments on your pages.

Overall, the clear message from the court is that “venting” on social media can have grave consequences and people should be cautious before making a denigrating or disparaging post about another person or entity.

Brian Vickers is a civil litigation lawyer at Zacharias at with a practice that has a focus on defamation law.

DECEMBER 2019 / BARTALK

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Indigenousmatters CHIEF LEAH GEORGE-WILSON

Tsleil-Waututh Nation on Media Relations How TWN navigates the media

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hen I first began to work for my community, the Tsleil-Waututh Nation (“TWN”), we were in the midst of a piece of litigation with a decision imminent in the mid 1990s. We had no communications department. Calls came into our retail store and a newspaper from Toronto interviewed one of the clerks! Then TWN got organized. All staff were briefed on who would speak to the media and where media calls would be directed. Our Treaty, Lands & Resources Department (“TLR”), and our internal caucus with our legal counsel mapped out our responses. Everyone knew where to send the requests and everyone knew that we were NOT to speak to the media. That was my introduction to media relations.

After that episode, the TWN created a communications team within the organization. They were mostly within the Economic Development Department and the TLR. As we grew, our administration grew as well. In that growth, came projects that attracted media attention: leased land, specific claims, treaty negotiation, economic development and the 2010 Olympics. The team helped us navigate during the Olympic bid process and into the 2010 Olympics. By then, we worked with media relations for the Four Host First Nations, and learned about how to manage the sometimes-rocky path. The media relations taught us interview methods that really kept us on message.

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BARTALK / DECEMBER 2019

Our opposition to the Trans Mountain Expansion project (“TMX”) has thrust TWN into the fray. We created the Sacred Trust Team that handled all of our TMX outreach to First Nations along the pipeline and parties also opposed. Within Sacred Trust we have a media relations person, and he helped us determine where we would use our limited resources. We had people that would do outreach to First Nations; to NGOs; specific people were identified to be speakers on behalf of the TWN if the Chief was not available. It was getting more intense. It was during this time that we created a communications department.

We have a very tions gentleman Sacred Trust. He understand who

good public relaworking in our ensures that folks we are and our

At the start of this, it seemed as though the Tsleil-Waututh Nation had to do a lot of explaining, now it appears that media has a better understanding of our positions. positions. He makes sure we know what the gist of the questions will be and that we have been properly briefed. He also is savvy and knows which media outlet would help and

which we may pass on. Knowing where to spend our limited time is really an asset.

We’ve also been able to hold our own press conferences. Now that has been empowering. We get our message out loud and clear and speak directly to the media.

As a First Nation leader, speaking to the media has become a routine occurrence during large news stories.

Since the last approval of the TMX project, I have spoken to so many radio stations, community papers, national papers, and television news outlets, I can’t even remember them all.

At the start of this, it seemed as though TWN had to do a lot of explaining. Now it appears that the media has a better understanding of our positions. My experience has been mostly a positive one. I find that give and take on interviews can be fast, and it takes some organization in my own thinking to stay ahead of the questions. It’s important to be able to think on your feet.

My advice is to not make things too complicated. Speak clearly and slowly. Try and make people think about things. Before you know it folks are asking you about the latest legislation or the upcoming election.

Then you know you’ve arrived....

Chief Leah George-Wilson, JD.

FRANCES ROSNER

BC Leads Canada on the Implementation of the United Nations Declaration of the Rights of Indigenous Peoples On October 24, 2019, Bill 41: Declaration on the Rights of Indigenous Peoples Act 1 was tabled in the British Columbian legislature, making this province the nation’s leader on the implementation of the United Nations Declaration of the Rights of Indigenous Peoples (“UNDRIP”)2. Bill 41 consists of ten sections that would codify the human rights-based preambular language of the UNDRIP and its 46 Articles. The UNDRIP is a remarkable international instrument that enshrines a universal human rights framework aimed at protecting the individual and collective rights of Indigenous peoples to be free from discrimination — to self-determination and selfgovernment — to practice and preserve their language and culture — and to develop and improve political, social and economic systems within their communities.

Importantly, the UNDRIP imposes a duty on the state to obtain Indigenous peoples’ free, prior and informed consent before making decisions that may impact their rights and before approving resource projects that may affect their territorial rights and interests. The UNDRIP also imposes

an obligation on the state to redress and mitigate any adverse impacts on the infringement of Indigenous rights, including the obligation to provide restitution and compensation for lands, territories and resources that were wrongly confiscated, taken, damaged and occupied without obtaining Indigenous peoples’ free, prior, and informed consent.

The UNDRIP was adopted by the United Nations General Assembly on September 13, 2007 and Canada was among the four nation states with significant colonial histories that opposed its adoption. Canada was concerned about the autonomy afforded to Indigenous peoples under the declaration and how that may conflict with Canadian laws and undermine state sovereignty, particularly in relation to land and resource disputes. However, in 2010, Canada issued a Statement of Support endorsing the principles of the declaration.

Then, in May of 2016, Canada declared its full support without qualification for the UNDRIP.3 There are still significant concerns with Canada’s implementation of the UNDRIP particularly in relation to pipeline projects that continue full speed ahead without adequate consultation and the free, prior and informed consent of Indigenous peoples.

Bill 41 affirms the application of the UNDRIP to laws in BC,

creates an action plan to contribute to the UNDRIP’s implementation and supports the building of relationships with Indigenous governing bodies. The action plan creates accountability with the government through the requirement of an annual report that must be “prepared in consultation and cooperation with the Indigenous [p]eoples in British Columbia.”4 If passed, Bill 41 would pave the way for the recognition of Indigenous peoples’ rights in BC by developing a framework for a dialogue between the BC government and Indigenous governments based on good faith consultations, respectful negotiations and consent-based agreements — all of which concretely support the path toward reconciliation. Hopefully, the rest of Canada will follow in BC’s footsteps by committing to the full implementation of the UNDRIP as merely endorsing the principles falls significantly short of the action that is needed.

Bill 41, Declaration on the Rights of Indigenous Peoples Act, 4th Sess, 41st Leg, B.C., 2019 2 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (UNDRIP) 3 Indigenous and Northern Affairs Canada, online: bit.ly/bt1219p9-1 4 Ibid, s. 5(2), online: bit.ly/bt1219p9-2 1

Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.

DECEMBER 2019 / BARTALK

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sections SECTION UPDATE

Keep Current A review of provincial Section meetings

how to spot red flags and militate against the pitfalls of joint tenancy.

Watch this in-depth presentation: bit.ly/bt1219p10-2

uuu On October 9, 2019, Watch recordings of our Section meetings and fulfill your CPD requirements before December 31st!

Sections are designed to meet the educational, advocacy and professional needs of lawyers.

We have strived to make Section meetings as accessible as possible, which is why most of our Section meetings are not only streamed live to accommodate remote attendees but recorded for members to watch later at their own time.

Each Section has its own web page with resources such as minutes, news updates, and more. Visit any of our Sections to watch webinar recordings of this year’s Section meetings.

The Honourable Mr. Justice D.M. Masuhara spoke to the Class Action Section on trends and developments in fee approvals, as well as other important issues that are arising in the class action settlement approval process.

Watch The Honourable Justice D.M. Masuhara’s comments on these topics: bit.ly/bt1219p10-3

uuu On October 17, 2019,

Below, we highlight our most popular and highest attended Section meetings.

Mark Virgin, Principal of Virgin Hickman and Alexandre Maltas, Director at Whitelaw Twining provided a general summary on retainer of experts to the Insurance Law Section and focused on how to select the right expert, lawyer involvement in drafting expert reports, damages that experts and response reports can do to your case as well as how to cultivate your own roster of experts.

Learn more about selecting and working with expert witnesses:

uuu On September 11, 2019, the Family Law — Vancouver Section welcomed Todd Bell of Schuman Basran Robin & Bell, Annie Kaderly and Anne Demeulemeester of Aaron Gordon Daykin Nordlinger LLP to present on recent cases dealing with excluded property and unequal division of property under the Family Law Act, including recent BCCA cases.

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BARTALK / DECEMBER 2019

Watch the webinar recording: bit.ly/bt1219p10-1

uuu On September 12, 2019, J. Kendal Paul and Hiva Parandian of Fasken’s Vancouver office joined the Elder Law Section to discuss the nature of joint tenancy, point out the risks of using this approach as an effective planning tool, and provide tips and suggestions on

bit.ly/bt1219p10-4

uuu On October 22, 2019, Howard Mickelson, QC of Gundmundseth Mickelson delivered practical insights and tips to use during cross-examinations and examinations for discovery.

Learn more about cross-examinations: bit.ly/bt1219p10-5

uuu The Business Corporations Act has been amended to require non-public BC companies to keep a register, i.e. a list, of “significant shareholders.” On October 24, 2019, Andrew Avis, Director of Business Organizations from the BC Ministry of Finance provided an overview to the Business Law Section of the new provisions, as well as guidance on the meaning of certain key terms, including “indirect control” and “direct and significant influence.”

Get a better insight on new provisions of the BC Ministry of Finance: bit.ly/bt1219p11-1

uuu On October 24, 2019, Robert Hayhoe, partner at Miller Thomson LLP joined the Charities & Not-For-Profit Law Section

to discuss the rules under the Income Tax Act and Canada Revenue Agency policy applicable to Canadian charities carrying out activities internationally, with practical advice on how charities can work with foreign intermediaries and meet the requirements.

Access the recording for this thought-provoking presentation: bit.ly/bt1219p11-2

uuu On October 30, 2019, the BC Securities Commission’s Michael Moretto, Gordon Smith, Larissa Streu, Nazma Lee and Laura Lam joined the Securities Law Section as they provided an update on some of the Canadian Securities Administrators’ initiatives to reduce regulatory burden,

including facilitating at-the-market offerings, modifying requirements to file a business acquisition report, considering alternative prospectus models, revisiting “primary business” requirements, and more.

Learn more about the BC Securities Commission’s initiatives: bit.ly/bt1219p11-3

uuu On November 4, 2019, guest speakers Kimberly Burns and Shea Coulson of Dentons Vancouver provided a refresher to the Business Law Section of the current legislative scheme governing cannabis in Canada, outlined the new (October 17, 2019) legislation for the regulation of the production and sale of edible cannabis, cannabis extracts and cannabis topicals, and provided insights as to what to expect from the new regulations.

Learn more about the new legislation on cannabis: bit.ly/bt1219p11-4

uuu On November 27, 2019, the Employment Law Section hosted Mike Hamata of Roper Greyell LLP and Geoffrey Metropolit, a tax lawyer with Deloitte Legal Canada LLP, as they tackled tricky tax issues that arise in employment disputes, such as legal fee reimbursement related to tax deductibility and source deductions, employee RRSP contributions and taxation of severance payments, among other issues.

Watch this in-depth presentation:

Join Sections!

Each Section organizes Section activities designed to update lawyers on their practice of law, provide an opportunity to network and advance one’s knowledge, and collectively comment on upcoming legislative changes. Section members learn from recognized experts and peers from across Canada about timely issues unique to their practice.

A list and summary of all our CBABC Sections and the meetings/events held in the previous Section term can be found here: bit.ly/bt1219p11-6 Interested in attending a Section’s meetings and activities?

Enroll in the Section here: bit.ly/ bt1219p11-7 uuu If you have any questions, please contact sections@cbabc.org or 604-687-3404.

bit.ly/bt1219p11-5 DECEMBER 2019 / BARTALK

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feature JON FESTINGER, QC

Regulating Digital Media

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hen examining digital media’s impact on society, the necessary starting point is identifying clearly what technological capabilities are actually new and different from the past. The answer seems to be the unprecedented power of combining user data, artificial intelligence, and the Internet. The result has been iterative generations of continuously evolving digital media applications which far exceed in scope and efficiency what has gone before.

Technological progress begets societal challenge. History has shown this to be especially true of how all media technologies first found their audiences and then changed how those audiences thought about the world.

From the first writing instruments through to the printing press, the telephone, radio, television and beyond, it turns out our media tools were changing us while we had the hubris to believe we were controlling them. Turns out that while we were busy authoring new outer worlds with our new superhero powers, the capabilities those tools gave us were very quietly, but on a grand scale, redefining our inner language for comprehending those same outer worlds we thought we were mastering. Marshall McLuhan got it right when he said, “We shape our tools, and then our tools shape us.” Equally prescient is Frank Pasquale of the University of Maryland School of Law in observing that “there is a delicate balance between appropriating new technologies and being appropriated by them.”

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Describing all the indignities and impoverishments digital media may have conspired to thrust upon us (real or imagined, and putting aside the benefits) is a herculean task. So please feel free to paint your own complaint, whether it relates to the impact of media on the US elections or the Brexit vote, teenagers being glued to their screens, the creepiness of devices that eerily seem to know what you are thinking, or those applications hellbent on telling you precisely what to do next (turn right, pedal harder)…. So many possibilities. Pick any of them as the object of your disaffection and read on.

If we accept that it is neither possible nor desirable to turn back time, then what principles can we apply to this brave new world (analogy chosen intentionally) to inoculate us from the potential of its most pernicious consequences. In this quest, we at least have generations of law and policy that can inform some helpful principles.

For most of us, most of the time, these principles can be translated into laws requiring: 1. Full transparency from media platforms regarding what data of ours they have, how they got it, and what they want to do with it coupled with a requirement that informed consent is necessary in order to do any of that.

2. That end-user license agreements and related contractual documents must originate as a standard form that is short, readable

and provides options. Professor Margaret Jane Radin’s brilliant book “Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law” is a crucial touchstone for evolving a road forward on these fraught questions.

3. That media platforms and applications are responsible for serious harm caused to us arising from the use of our information. The concept of “information fiduciaries” has been proposed by Professors Jack Balkin and Jonathan Zittrain, who would have the law impose duties of care, confidentiality, and loyalty upon the Facebooks of the world.

4. Real-time source transparency, meaning that as a general rule we get to know the true human sources of messages we receive, and that bots and other non-human inhabitants of the Internet be disclosed as such. Detection of the false and fraudulent is improving rapidly with every passing day as evidenced by the extraordinary level of detail we have about the Russians involved in interfering in the 2016 US elections. If someone is trying to manipulate us, why should they be entitled to any privacy protections at all?

Technological tools are rarely ever simply good or bad. It is how those tools are used that is the point — as it has been from Martin Luther to William Randolph Hurst to Mark Zuckerberg. As long as the law does not cower in the face of the sea of uncertainty and confusion before it, and holds fast to human first principles of fairness and justice in adapting as necessary, I like our chances.

Jon Festinger, QC, Of Counsel, Whiteboard Law; Faculty, Centre for Digital Media; Adjunct Professor, Allard School of Law.

feature DAN COLES

Journalist Source Protection

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ometimes it takes an outrage to trigger long overdue reform. When Quebec police were caught spying on journalists, it inspired Senator Claude Carignan to introduce a private members bill. In a reversal of the usual legislative order, first the Senate and then the House of Commons passed the bill, and the Journalist Source Protection Act (“JSPA”) was born, receiving Royal Assent on October 18, 2017.

In September 2019, the Supreme Court of Canada applied the new JSPA with commentary that illustrates its significant change to the law.

The JSPA amends both the Criminal Code and Canada Evidence Act, creating a new procedure and onus which is engaged when any judicial authorization is sought concerning journalistic materials, or even where an order unexpectedly results in police obtaining such material. The amendments require that the journalistic material not be disclosed without Crown discharging its onus to show that the authorization is both necessary and that its importance outweighs the public interest in protecting journalist sources.

In Denis v. Côté, 2019 SCC 44, the JSPA was invoked to quash a subpoena issued to a journalist, MarieMaude Denis. An accused who was charged with several offices, including fraud and bribery, had applied to stay the charges on the grounds that confidential information was leaked to the journalist, and his counsel obtained a subpoena for the journalist’s material.

The motion to quash the subpoena succeeded. Writing for eight of the justices, Chief Justice of Canada

Richard Wagner, observed that the prior law put the onus on the journalist who objected to the disclosure of information that might identify a source to establish that the four criteria of the Wigmore test were met.

The JSPA displaced this common law scheme and now places the onus on those seeking disclosure to prove that the information “cannot be produced... by any other reasonable means” and to convince the court the document or information is so important that it outweighs the public interest in preserving the confidentiality of the journalistic source. Wagner, CJC was clear, it will only be as a “last resort” that a court should require a journalist to breach a confidentiality undertaking with a source.

Due to additional facts asserted by the Crown, the majority remitted the matter back for determination. Justice Rosalie Abella gave even more forceful reasons and would have quashed the subpoena outright.

The Côté decision contrasts interestingly with the Supreme Court’s decision almost one year earlier in R. v. Vice Media Canada Inc., 2018 SCC 53. The court at that time, confirming at the outset that the thennew JSPA had not been in force at the material time and therefore did not apply, upheld an order for a journalist to turn over electronic messages with a former Calgarian, Farah Mohamed Shirdon, who claimed to have joined ISIS in Syria.

There was no agreement to hide his identity and his quotes in the Vice

articles “strongly implicated” him in terrorist activities.

Still, the Vice case raised important issues regarding subpoenas and court orders which undermine neutrality by converting journalistic work product into police evidence. Recognizing that, the court underlined the importance of narrowly tailoring orders touching upon journalistic material, and emphasized the circumstances, in which neither the identity nor anything in the messages were provided on a confidential basis.

Vice was a 5-4 split, and it is noteworthy that Justice Abella was also in dissent in Vice, on this occasion writing for three other justices. Justice Abella observed that for 25 years the court has “flirted” with acknowledging that s. 2(b) of the Charter protects independent rights for the media (emphasis in original), rather than treating freedom of the press as merely an aspect of the broader right to freedom of expression. Though Justice Abella’s distinct constitutional recognition of “freedom of the press” was not adopted by the majority of the court in this instance, such recognition is likely not far off.

The JSPA creates a brighter future for serious investigative journalism in Canada by requiring both police and justices — those who issue authorizations as well as those reviewing them — to apply a new level of scrutiny to the true necessity of invading journalists’ confidences, and a new level of paramountcy to journalist/source protection except in cases of last resort.

Dan Coles, Owen Bird Law Corporation DECEMBER 2019 / BARTALK

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nothingofficial TONY WILSON, QC

Emotional Contagion and the 2019 Election Who are the Prouds and who funds them?

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erhaps the best moment of the October federal election may have gone unnoticed if you weren’t watching CBC’s coverage, hosted by the excellent Rosemary Barton. In an election filled with rancour, missteps, lies, SNC, (and yes, blackface), panellist Megan Leslie, a former Halifax NDP MP who was defeated in the 2015 federal election, reached out to Lisa Raitt, Deputy Leader of the Conservative Opposition who had just been defeated in her riding of Milton. You could tell that the two were close friends and colleagues despite the fact that they came from different political parties; one from the left and one from the right. Yet they were gushing with admiration for each other and Leslie was as complementary to Raitt as Raitt had been to Leslie four years earlier after Leslie’s defeat. It made me think that this was the gold standard of what political life should be. You may disagree with someone’s politics or policies, but that should not stand in the way of people being able to work together and be close friends despite the political divide.

Unfortunately, virtually every other political actor fell far beneath that standard in the last federal election.

If the Lisa Raitt-Megan Leslie CBC “love in” was the high point, the low point was the propaganda generated and disseminated by third party actors such as BC Proud, Canada Proud, Ontario Proud and other “Proud” organizations who are not regulated by anyone. Are they grass roots organizations? Are they funded by the Manning Institute, or as some have suggested, the Republican Party in the 14

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US? Are bots somehow involved? Or are the Russians trying to destabilize our electoral system by surreptitiously co-opting these right-wing social media platforms and their followers as they did in the US election of 2016? I’d like to know more. Others would too.

The Prouds circulated and re-circulated anti-liberal “dog-whistle” Facebook memes that went viral among their followers. Interestingly, some of their followers and memespreaders only exist on Facebook, and don’t seem to exist on Google, Canada 411 or anywhere else in the real world (I’ve checked).

These avatars have no “friends,” even though their profiles are public.

Their profiles and photos consisted of nothing more than Anti-Trudeau memes. That doesn’t sound like a “grass roots” disenchanted voter from Red Deer who would normally have had a few photos of friends and family scattered amongst the vitriol. It sounds more like someone who doesn’t want to be discovered.

So are they Russians? Bots? Americans? If not, why the secret avatars?

This matters because the Prouds and their followers (real, Russian, Robotic, Republican or otherwise) use a technique called “emotional contagion,” where a person or group influences the emotions or behaviour of others through the conscious or unconscious induction of emotional states and behavioural attitudes. (Think “gas on a fire.”) The Russians and Cambridge Analytica exploited “emotional contagion” on social media to help elect

Donald Trump in 2016. Cambridge Analytica used it to influence the 2010 elections in Trinidad and Tobago.

This is the subject of an excellent documentary called “The Great Hack” on Netflix. Cambridge Analytica, working for politicians in the South Asian community in Trinidad and Tobago influenced that election by promoting ads and memes through a campaign called “Do So” that encouraged young blacks not to vote as “a sign of resistance against politics.” With a sizeable demographic of young black voters persuaded not to vote, the South Asian UNC won that election.

The Liberals had an awful year and in any other election, they should have lost. They have a lot to do to curtail western alienation. A pipeline would help. But since the election, the vitriol coming from the Prouds and their followers are filled with the rhetoric of western separation, making me a little suspicious that foreign actors are using emotional contagion techniques to inflame the rhetoric (now that Greenland is not for sale).

The Globe and the National Observer have examined the activities of the Prouds. We need a “Great Hack” style documentary that investigates them more thoroughly.

Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and a Bencher of the Law Society.

The views expressed herein are strictly those of Tony and do not reflect the opinions of the Law Society, CBABC, or their respective members.

BRITISH

CO LUMBIA

career opportunities Head of Legal | 10+ years | Fraser Valley

We’re working with a group of diversified businesses, with over 2,000 employees between 4 companies in the Fraser Valley, now looking to hire their first in-house lawyer, to head up their legal operations and provide guidance to their various business units. Reporting directly to the President, this position requires a dynamic leader with a broad experience in corporate/commercial law with particular emphasis on construction and real estate matters.

There is a manufacturing and materials bent to some of the businesses, and apart from general commercial matters, you will be dealing with an array of contracts for existing and new construction projects, real estate transactions, litigation management, compliance and employment law. This is a rare opportunity to grow and develop alongside a dynamic and diverse group of businesses.

The ideal candidate will have a minimum of 10 years’ experience, ideally having managed a broad legal remit in-house. You will be a self-starter who thrives in a fast-paced environment and is adept at building strong relationships with multiple stakeholders. The businesses are all based around the Langley and South Surrey area, so it’s an ideal position for someone living in the Fraser Valley and tired of the commute downtown.

For more information or to apply, please contact Mike Race or Amrit Rai at legalBC@zsa.ca quoting reference BT29573.

In-House Corporate Counsel | 3-6 years | Vancouver

Our client is a major infrastructure company, currently looking to hire an in-house Corporate Counsel for their downtown Vancouver office. You will be responsible for providing support to the business, and as a trusted advisor to senior management. Duties include drafting and negotiating a range of commercial agreements, construction-related contracts and other legal documents; identifying legal risks; supporting commercial transactions; and managing external counsel on litigation matters.

The ideal candidate will have 3- 6 years of construction & infrastructure, commercial real estate, or general corporate commercial experience, gained at a reputable law firm. For more information or to apply (in MS Word format), please contact Mike Race or Amrit Rai at legalBC@zsa.ca, quoting reference BT29426.

ICBC Lawyer | 5+ years | Vancouver

Our client, a full-service firm located in the heart of downtown Vancouver, is seeking two ICBC lawyers to join their busy team.

The ideal candidates will have a minimum of 5 years’ experience working in ICBC insurance defense. You will be responsible for handling files from inception to trial. You will be working alongside talented lawyers who are passionate about their craft and work collaboratively together.

For more information or to apply in confidence (in MS Word format) please contact Mike Race or Amrit Rai at legalBC@zsa.ca quoting reference BT29510.

zsa.ca

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guest MICHAEL BUTTERFIELD

Improving Access to Justice Making the most out of the ADR toolkit

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here are many obstacles to accessing justice. Cost and delays are often cited as major obstacles. Over the last decade, governments and litigants have increasingly looked at the Alternative Dispute Resolution (“ADR”) toolkit for simpler and quicker resolution. However, the strength of the court system is that it has evolved to ensure fairness of proceedings. In order to be a viable alternative, ADR must be as rigorous in ensuring fairness.

For ADR professionals, ensuring informed consent and appropriate disclosure continues to be challenging. However, these elements are essential to fairness.

Many litigants select an ADR process to save money, and for that reason choose not to hire lawyers to assist them in the process. This attitude contains an inherent risk of unfairness.

Meaningful participation in an ADR processes is voluntary and based upon consent. The challenge, without the involvement of lawyers, is ensuring that the consent is informed.

Informed consent is based upon the parties’ understanding of their rights and obligations under the law. While an ADR professional can talk in general terms about rights and obligations, they cannot give specific advice to the parties. A lack of legally informed consent can undermine the process and leave agreements vulnerable to challenge.

Disclosure is frequently challenging.

In any bargaining process, the par­ ties have to know both what they are getting from an agreement as well as 16

BARTALK / DECEMBER 2019

what they are giving up. The rights and obligations of disclosure, underpin the equality of the bargain.

The best practice is for each party to have legal representation throughout the ADR process. The lawyers will have the professional obligation to ensure informed consent and appropriate disclosure. Best practice falls apart when parties do not want or cannot afford to pay for full legal representation.

The challenge is finding a balance between affordability and fairness. Adding limited scope retainers to the ADR toolkit can help achieve this balance.

Limited scope retainers (“LSR”), or unbundled legal services, have been specifically regulated by the Law Society of BC since 2013 and are recognized as a means of enhancing access to justice. Simply put, rather than providing full representation, the lawyer provides specific services often for a fixed fee.

For many parties, the biggest challenge to lawyer involvement is the perception of cost. The traditional billable hour model does not lend itself to predictability of costs. However, LSR provides more predictability and it is easier for clients to budget.

Many clients will happily pay $600800 for 1-2 hours of a lawyer’s time to properly understand their rights and obligations, while shying away from paying a $3-5,000 retainer.

This is especially true when clients recognize that, by getting this advice early in the process, it will make a fair resolution more likely.

LSRs can add an extra layer of fairness. Lawyers are in an excellent position to ensure informed consent and the appropriateness of the proposed ADR process. This is especially true in family matters where, in BC and Ontario, the lawyers are required to screen for family violence and power imbalance.

LSRs can also address the need to ensure appropriate disclosure by advising the clients of what they will require and what they must disclose.

In family matters, this often includes the preparation of a Financial Statement. The flat fees for preparing a standard Financial Statements range from $400-800.

By encouraging the parties to obtain legal advice and explain the option of LRS, the ADR professional can enhance their role to ensure fairness. They can better prepare the parties for a meaningful process and increase the certainty of any final agreement.

Finding a LSR practitioner can be more of a challenge. In BC, there is a Family Unbundled Legal Services Roster. Their website is unbundling.ca.

This roster has almost 100 members throughout the province. The CBABC Unbundled Legal Services Section has more than 100 members ranging across most areas of law and is a great resource for practitioners.

Michael Butterfield is a lawyer, medi­ator and arbitrator. He was a founding member of the Unbundled Law Section of the CBABC.

I give to my community and with Vancouver Foundation, my giving lasts forever.

75 years ago, a single gift started Vancouver Foundation and that gift is still making a difference in the community today.

We can help you create a fund that gives forever.

Get started at vancouverfoundation.ca/create or call Kristin at 604.629.5186

To find your local community foundation visit communityfoundations.ca

DECEMBER 2019 / BARTALK

17

feature LISA PICOTTE-LI

You Don’t Have the Right to Be Forgotten And you don’t want to remain silent to manage the crisis

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igital memory enables past behaviour to be remembered forever. Just ask any politician. But the strategy of “no comment” in the court of public opinion can be disastrous for trust and reputation.

Silence mitigates legal risks in the courtroom, but counsel, witnesses, judges, and juries are influenced by public perception; not only must justice be done, it must be seen to be done. The permanency and accessibility of information simplifies dissemination, making crisis management essential.

In 2010, a Spanish citizen filed a complaint that outdated, irrelevant information regarding repossession of his home should be removed from a newspaper and Google’s search results as it infringed his privacy (Google Spain SL v. Agencia Espanola de Proteccion de Datos, Case C-131/12, May 13, 2014). Information about his debts had been resolved a decade earlier, but continued to appear in search results with his name. Google eventually appealed to the National High Court of Spain, which referred a series of questions to the Court of Justice of the European Union (“CJEU”), the highest court in the EU. In 2014, the CJEU ruled that EU citizens have the right to be forgotten. It placed onerous obligations 18

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on Google to remove inaccurate, inadequate, or irrelevant data from its search results. The decision meant that data protection laws applied to search engines, even if data processing servers were located in another jurisdiction and the infringing content continued to exist. The General Data Protection Regulation, (EU) 2016/679, which came into force in 2018, enshrined the right to erasure in Article 17. On balance, EU citizens have the right to digital obscurity.

In Canada, federal and provincial privacy laws govern the collection, use, and disclosure of personal information, including the right to request certain information be removed or corrected by the

The right to be forgotten does not exist in Canada. original source. In addition to privacy rights, Canadians also have the right to access information and to freedom of expression. The right to be forgotten does not exist in Canada. As Google challenged in a reference case by the Office of the Privacy Commissioner of Canada to the Federal Court, the right to be forgotten might be unconstitutional

(Reference re subsection 18.3(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, 2019 FC 261).

So how does this unfold in the court of public opinion? Perhaps it is an image from a social event, an outdated criminal conviction, or information in a public registry.

The dissemination of potentially harmful information can give rise to crises that impact reputation, productivity, morale, and strategy.

The potential harm can be swift and, in some cases, more devastating and permanent than losses in court.

Traditional “no comment, we will win in the courtroom” messaging is outdated. It relinquishes control of a narrative in a landscape filled with short attention spans and viral stories. Silence mitigates legal risks, but breeds speculation that there is something to hide. Legal advice for crisis management needs to extend beyond litigation exposure to reduce a range of risks, including the consequences of permanently available information.

Issues like record-keeping, compliance, governance, investigation, and mitigation all benefit from legal expertise. The most useful advice will include quick, simple messaging to manage a broad range of issues and still be interesting enough to persuade the public. Efficient crisis management requires caution to reduce litigation risk. More than ever, it also requires a strategy for effective communication.

Lisa Picotte-Li is in-house counsel at a provincial regulator and adjudicates discipline of federal inmates. The views are those of the author.

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For more information, please contact Dan Malamet at dmalamet@zsa.ca.

General Counsel Vancouver We are working with Vancity, the largest community credit union in Canada and an internationally recognized values-based banking pioneer, which sits at the nexus of environmental sustainability and cultural diversity.

They are now looking for an experienced lawyer who has an alignment with their values to join the business as Vice President, Legal Services and General Counsel. In this position you will be a key player in the management and expansion of the existing high-performing legal team. You will provide legal oversight to major transactions, asset acquisitions and dispositions, and oversee general legal matters to support the business. Experience in drafting, reviewing and the negotiation of various agreements and contracts (specifically technology procurement contracts) will be highly valued. Also important is your track record of proven success in executing legal risk mitigation strategies, implementing company initiatives, and managing external legal spend.

The ideal candidate will have a minimum of 10 years’ legal experience, gained in a financial services institution or other highly regulated industry. You will be a dynamic leader and tactical thinker and be able to balance the needs of the business with the legal realities it may come up against. You will also be a relationship builder, able to deftly manage the demands of multiple stakeholders, and guide them concerning the legal and strategic aspects of whatever business challenges come up. For more information or to apply (in MS Word format), please contact Mike Race or Amrit Rai at legalBC@zsa.ca quoting reference BT29528.

ZSA Legal Recruitment is exclusively retained on this search, and any applications received by Vancity will be redirected to ZSA.

zsa.ca

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DECEMBER 2019 / BARTALK

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guest ANAHITA TAJADOD

May You Foreclose on Demand?

Critical considerations to preserve the right to realize on the security

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he case of Leatherman v. 0969708 B.C. Ltd., 2018 BCCA 33 (“Leatherman”) shows the significance of advising lenders of the limitation periods applicable to enforcement of the security as well as the mortgagee’s rights under the covenant.

In Leatherman, 0969708 B.C. Ltd. assumed the obligations of Kootenay Lake Estates Ltd. (“Kootenay”) under a mortgage that Kootenay had granted to Charles and Sandra Leatherman in 2013. The mortgage stipulated that the principal was due on demand with accrued interest due annually on October 31 commencing October 31, 2013.

The Prescribed Standard Mortgage Terms granted the mortgagee the option to accelerate the debt and realize on the security upon the first incident of default. No interest or principal was paid. On November 9, 2016, the Leathermans issued a demand for payment of principal and interest and in December 2016, filed a foreclosure claim. Kootenay Lake Estates Ltd. and 0969708 B.C. Ltd. applied for dismissal of the claim on the basis that it was filed after the two-year limitation period set out in the Limitation Act (“Act”).

Section 14 of the Act provides that demand obligations are “... discovered on the first day there is a failure to make repayment once a demand 20

BARTALK / DECEMBER 2019

has been made.” Under section 15 of the Act, the right to realize on the security “… is discovered on the first day that the right to enforce the security arises.” Section 24 of the Act provides that if a person acknowledges liability in respect of a

3. The right to enforce the (unsecured) covenant to pay the principal was discovered on the mortgagor’s failure to pay following demand as per section 14.

As a result, the court found that the limitation period for the right to realize on the security had passed and overturned the lower court’s dismissal of the application. The matter was remitted to the trial court to determine whether postponement had occurred. The trial has not been heard. The motion for leave to appeal to the Supreme Court was dismissed.

To avoid the unfortunate expiry of a limitation period, lenders would be well advised to consider the following:

claim before the expiry of a limitation period that applies to the claim, then the discovery of the claim is postponed to the date when the acknowledgment is made.

The application of the Act led to three different triggering events in terms of the discovery of the three different components of the mortgage: 1. The right to realize on the security was discovered on the date of the first default in payment of the interest as per section 15 unless postponed under section 24; 2. The right to enforce the (unsecured) covenant to pay the interest was discovered on the date of each default of that payment as per section 6; and

1. Including language in the standard form contracts so the right to enforce the security is not automatic upon default but that something more such as a demand or a declaration by the lender is also required upon default to enforce the security. Such language should ensure that the clock does not start running under section 15 upon default; 2. Monitoring instances of default as defined in the contract through established procedure; 3. Requiring borrowers to report likely events of default; and 4. Obtaining an acknowledgment from the mortgagor if the security has become enforceable to postpone the expiry of the limitation period.

Anahita Tajadod, Associate Lawyer, Benson Law LLP.

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 and advance one’s career, practice and business. We pride ourselves on bringing courses to lawyers that will provide the required components of professional responsibility and ethics, client care and relations, and practice management components for your Law Society reporting.

Upcoming Conferences/Seminars Ethics in Practice & Community: Kamloops

South of the Fraser Conference (Feb. 28)

&

Join the CBABC and Kamloops Bar Association as we discuss the important subject of ethics in an engaging way, where our speakers will involve audience members in the discussion of ethical scenarios involving real-life examples, case studies and the code of conduct.

Date: January 23, 2020 Location: Courthouse Library, Kamloops CPD: 2 Hours Register: bit.ly/bt1219p28-1

North of the Fraser Conference (Apr. 17)

Family Law — Okanagan Conference 2020

Save-the-date to join us in Vancouver in February 2020 for this much-anticipated annual conference where leading Immigration practitioners and government officials dive into all matters Immigration Law! Keep an eye out for registration information, as the conference sells out every year!

Save-the-date to join us for this annual two-day conference to kick start your 2020 LSBC reporting year with a full slate of CPD hours. This conference will be held at the beautiful Sparkling Hill Resort in Vernon.

This is a unique opportunity to satisfy the bulk of your CPD credits early in the year in a memorable location that also affords easy access to the Okanagan’s renowned winter outdoor activities.

Date: February 7, 2020 Location: Terminal City Club, Vancouver CPD: 6 Hours (TBD)

Date: February 20-21, 2020 Location: Sparkling Hill Resort, Vernon CPD: 10-12 Hours (TBD)

Immigration Law Conference 2020

Plan for 2020 as we bring you two six-hour conferences that will help you build a strong foundation for your practice.

These conferences will feature practice management topics for solo and small-firm practitioners.

Plan to register for both and claim 12 hours of CPD for the 2020 year!

Date: February 28, 2020 Location: Sheraton Guildford Hotel, Surrey CPD: 6 Hours Date: April 17, 2020 Location: Chateau Diane, Coquitlam CPD: 6 Hours For more information, contact pd@cbabc.org or visit our PD calendar at bit.ly/CBABC_PD.

PD On-Demand Fulfill your 12 hours of CPD before December 31st!

BC practising lawyers, both full-time and part-time, must complete 12 hours of accredited CPD within the calendar year. At least two of the 12 hours must pertain to any combination of professional responsibility and ethics and practice management.

Visit our CBABC On-Demand PD library to choose from more than 150 webinar recordings to view at your own time before the LSBC CPD reporting year ends. All our recordings qualify for CPD hours, most of which will cover your two hours of professional responsibility, ethics and/or practice management.

uuu cbabc.org/Professional-Development/On-Demand

DECEMBER 2019 / BARTALK

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news&events NEWS

2019 Georges A. Goyer, QC Memorial Award for Distinguished Service

CBA NATIONAL NEWS

Bringing the Privacy Act into the Digital Age Canada’s Privacy Act (“Act”) is a middle-aged law long overdue for a makeover. The Act has failed to keep up with the world around it — societal and technological changes have passed it by, as has parallel legislation aimed at the private sector, notably the Personal Information Protection and Electronic Documents Act. The CBA has been calling for the Act to be overhauled for years and was pleased to comment on discussion papers issued this summer by the Justice Department with modernization in mind. The Privacy and Access Law Section referenced a rich body of past submissions and resolutions on the Act, as well as the Access to Information Act and PIPEDA in its submission, and notes that where the current document differs from the past submissions it is only to incorporate developments that have happened since then.

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Read more

(L-R): Ken Armstrong (CBABC President); Robert Brun, QC (Goyer Recipient) and Kerry L. Simmons, QC (CBABC Executive Director).

Congratulations to 2019 recipient, Robert Brun, QC. Mr. Brun is a former CBABC Branch president and he has been a member for 45 years. He is with Harris & Brun Law Corporation in Vancouver. This special award is named for Georges A. Goyer, QC, a respected member of the CBABC Branch who passed away in 1992 after a courageous battle with cancer.

The award annually recognizes a BC resident for exceptional contribution to the law, the legal profession or a lawrelated benefit to British Columbians.

NEWS

CBABC ADVOCACY UPDATE MONEY LAUNDERING IN BC CBABC was granted standing to participate in the Cullen Commission of Inquiry into Money Laundering in BC. The Cullen Commission looks at the full scope of money laundering in BC, including real estate, gaming, financial institutions and the corporate and professional sectors.

CBA supports combatting money laundering in the context of protecting fundamental individual rights and freedoms of all British Columbians, and in compliance with the Canadian Constitution. Our advocacy continues to protect the confidential relationship between solicitor and client.

The Supreme Court of Canada said: “The importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal privilege to protect a relationship that has a central importance to the legal system as a whole.”

People need to give their lawyer all the necessary information to be fully-represented, and to trust that their information is confidential. That trust is vital to the relationship between a lawyer and client, and to our justice system.

The Commission is to deliver an interim report by November 15, 2020 and a final report

by May 2021.

BRANCH & BAR

Calendar

DECEMBER

5 Family Law — Okanagan Annual Dinner — Kelowna 6 Webinar: Divorce Act, Explained — Part III 11 2019 Okanagan Inns of Court Program — Kelowna 25 Christmas Day

JANUARY

1 New Year’s Day 23 Seminar: Ethics in Practice & Community — Kamloops

BC WLF UPDATE — by Leah Seneviratne

Mentorship: Enable Your Personal and Professional Growth The beginning of one’s legal practice can be especially daunting without adequate support or a safe space to discuss interest in other areas of law, such as media law. The Mentoring Program of the Women Lawyers Forum is designed to facilitate skill-sharing and support systems between women in the legal profession, in order to address the unique challenges women face while practising law in an ever-evolving landscape.

The WLF held its annual Mentorship Pairing Evening on October 15, 2019. This year, the Mentoring Program Committee matched more than 60 pairs across BC. Mentors are matched with mentees based on a variety of information, such as their personal and professional goals, current or preferred area of practice, or their geographical area.

While mentees will benefit from the career guidance and confidential discussion of concerns, mentors may use this program to develop their leadership skills and give back to other women in their profession.

The WLF is thankful for all the women who have participated in our Mentoring Program over the years, and we encourage women lawyers from all areas of BC to get involved in this Program in the future.

DECEMBER 2019 / BARTALK

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news&events NEWS

CLEBC Update CLEBC WELCOMES NEW BOARD MEMBERS We are pleased to welcome five new CLEBC Board Directors beginning September 1, 2019.

Several are current CLEBC contributors and we greatly appreciate their continued support in this new capacity.

Dr. Cristie Ford is Associate Dean, Research and the Legal Profession, and a Professor of Law at UBC Allard School of Law. Dr. Ford’s research focuses on regulatory theory as it relates to international,

TIPS FROM

US, and Canadian financial and securities regulation.

Scott Morishita is associate counsel at Rice Harbut Elliott LLP. Scott is an elected member of the CBABC Provincial Council and recently appointed to the CBABC Access to Justice Committee.

He is on the Board of RainCity Housing and Support Society, and has volunteered with the Lawyers Assistance Program of BC for more than 10 years.

Mary-Jane Wilson practises in the areas of wills, estates, estate planning, and real estate law at Wilson Rasmussen LLP. She has mentored young women lawyers as part of the formal mentoring

program of the CBABC Women Lawyers Forum.

Greg Palm is a senior litigation lawyer at Hamilton Duncan. He is an active member of the CBABC where he is a twoterm member of the Provincial Council, the current chair of the Professional Issues Committee, and a member of the BarTalk Editorial Board.

Amanda Krishan’s practice focuses on immigration law and wills and estates. In 2019, Amanda and her partner opened VK Law Corporation to provide legal services to Kimberley and the East Kootenays.

UNDERSTANDING MEDIA LAW

What do telecom regulations, mere puffery, harassing tweets, and publication bans have in common? Well, they’re fairly hard to co-ordinate into an overarching treatise called “Media Law” for one thing. Perhaps that’s why there are 225 titles in Westlaw’s Canadian Encyclopedic Digest — from Aboriginal Law to Youth Criminal Justice — but Media Law is not a title unto itself. What once encompassed the laws applicable to journalists, publishers, broadcasters and telecoms, now surrounds us all. Today, almost anyone’s life (and problems) can be carried out (or exposed) through some form of media, and almost everyone carries on their person the technological means to transgress any number of media laws. Similarly, nearly all practice areas feed (on or into) the growing corpus of media law. Some interesting new readings in our collection include Media Law for Canadian Journalists (2018) — nearly half of which is about reporting on the justice system and restrictions on coverage of the courts. Another is the sixth edition of Advertising and Marketing Law in Canada (2019), which now includes reference to “social media influencers” as if to drive home just how non-exclusive media law itself has become.

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BARTALK / DECEMBER 2019

announcement LAW FOUNDATION OF BRITISH COLUMBIA

Advocates Funded by the Law Foundation of British Columbia As part of its work to enhance access to justice, the Law Foundation of BC now funds more than 100 advocates throughout BC — approximately 90 poverty law advocates in 50 programs, and more than 25 family law advocates. To ensure that all the legal advocates have core advocacy skills and substantive legal knowledge relevant to their work, it is a condition of grants to advocacy programs that any advocate working more than half time take two weeks of training and be assessed, or prove an equivalency of skills and knowledge.

Since early 2008, the Legal Advocacy Training Course (“LATC”) has trained poverty law advocates. A wide variety of experts in poverty law and skilled advocates were involved in developing the curriculum and assessment tools in the course. LATC includes sessions on poverty law issues such as: welfare, disability benefits, residential tenancy, debt, human rights, and employment issues. Students also do practical work with mock interviews, legal research, and case preparation.

In 2018, the Board approved funding for 20 family law advocacy programs and a two-week program to provide training in core skills and legal issues. Again, the Family Legal Advocate Training Course was developed in consultation with an advisory committee of lawyers, advocates and other staff working in family law. Sessions cover issues such as guardianship and parenting time, child and spousal support, violence issues, mobility, and child protection, as well as practical training in advocacy skills.

In addition to initial core training, the Law Foundation has instituted a variety of ongoing supports for their funded advocates. New advocates have the opportunity to shadow other, more experienced advocates if training is not available when they start work. All advocates funded by the Law Foundation consult on a regular basis with supervising lawyers contracted by their organization, and have access to “advocate support” lawyers, experts in poverty and family law issues, who are available to support advocates in a variety of ways.

Advocates also have the option of taking courses in person or online to fill gaps in their knowledge, and each year advocates from around the province attend a 3-day conference with opportunities for professional development and important networking. Finally, the Foundation provides new advocates with resources relevant to their work: new family law advocates get CLE materials and a subscription to DivorceMate.

Advocates funded by the Law Foundation benefit from a solid network of training and support. This, in turn, benefits their clients and ensures that programs funded by the Law Foundation provide consistent, dependable service.

DECEMBER 2019 / BARTALK

25

practicetalk DAVID J. BILINSKY

Take Advantage of Social Media Learn how to stand out from the crowd rAll the little birdies on Jaybird Street Love to hear the robin go tweet tweet tweet... r

– Music and Lyrics by Thomas Jimmie, recorded by Michael Jackson.

W

ould you pay attention to an emerging marketing platform that has seen a 663% increase in people over two years looking for recommendations around professional services? I would imagine you would. Twitter is that platform. Now: how many of you have a thoughtful, continual and strategic presence on Twitter that engages the community from which you draw your clients? While we are at it, how many of you have a digital media marketing plan that includes Twitter and other social media platforms? If not, according to research carried out in the UK by Orange Business, you may be overlooking a big opportunity: “[S]econd on the list are solicitors, who may not be aware of the fees they could be missing out on by not engaging with the public and other businesses via Twitter.” (bit.ly/bt1219p26-1) Orange notes that lawyers need to do more than just be “on” Twitter. You need to demonstrate your expertise, show that you know what you are talking about and share information far and wide. In other words, your Twitter presence should be part of a comprehensive and strategic social media marketing plan (a “SMMP”).

HOW DO YOU BUILD YOUR SMMP?

First, you need to learn about how social media (“SM”) is being used by lawyers in your area(s) of practice.

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BARTALK / DECEMBER 2019

Look inwards and determine which services you provide that you wish to market and learn how other lawyers (perhaps in other jurisdictions) are using SM in relation to these services. Are they engaging on Twitter and if so, what hashtags are they using?

Did they create YouTube videos that speak to their knowledge of an area of law? Are they on Facebook and if so, have they posted videos, articles or interviews? How about Instagram?

Reddit? Quora? Snapchat? The idea is to think beyond LinkedIn, which frankly, every lawyer should already be on.

Now, determine what people are saying about you and your firm on SM. Research using Google, Facebook, Twitter and other SM platforms and see what is being said about you and your firm, if anything. This gives you a starting point together with an assessment of the SM landscape.

Determine how your target clients are holding conversations in SM that are relevant to you and your firm. What topics are they discussing? This gives you a target of where you need to be in terms of platforms and topics.

Next, set your strategy. How are you going to go about SM posts?

Videos? Photos? Articles? Will you engage in Twitter conversations on select topics? Comment on recent cases (hint: don’t use your recent cases — too easy to breach client confidentiality). Establish SM goals for your marketing focus.

Schedule your time and updates for SM. You will need regular, consistent and timely updates. How much time and money will you expend?

Set a budget.

Set up the metrics that you will use in determining if you are meeting your goals. You need to see if your efforts are bearing fruit.

Reach out and experiment and start to build your SM networks. Follow people. Comment. Experiment. Learn how people use the different platforms and become part of the community. Don’t hesitate to consult with SM experts to save time and speed up the process.

Your SM presence should aim to refer people back to your blog where your more detailed content is located and where people can learn about you (after all, this is social media). Your blog is where you demonstrate your in-depth knowledge via the posts that you have written and people can find your contact information.

Unlike an advertisement, SM is a dialogue with your potential clients.

Your skillful tweet tweet tweet can take you from being just another birdie in the tree to a rocking robin.

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 (presently on leave).

Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

dave’s techtips Legal Marketing Who are the knowledgeable legal marketing personalities and organizations that are available to assist you in your marketing journey? uuu LEGAL MARKETING ASSOCIATION (blog.legalmarketing.org) The Legal Marketing Association is an international organization composed of consultants, vendors, lawyers, marketers from other professions, and marketing students. It has a Western Canadian Regional Governing Board, with Vancouver’s own Susan Van Dyke of Van Dyke Marketing & Communications as the 2019 incoming President Elect. They are a tremendous resource for all areas of legal marketing.

Follow their blog to stay current on news, trends and more.

In terms of online presence, you should be able to learn a great deal about legal marketing by seeing what advice experts in the field place on their blogs and web pages — for free.

Examples of their work allows you to gauge the impact of their work; awards allow you to determine what their peers are saying about them. Here is a sampling of those people and

organizations that I and others, consider strongly influential. uuu SKUNKWORKS (skunkworks.ca/blog) The team at Skunkworks have become a local tour de force for lawyers and law firms here in BC. Doug Jasinski, Marnie MacLeod and Jeremy Hessing-Lewis have all done their time in the legal trenches and speak the language of lawyers and marketing. Their blog and examples of their work are a good place to start to see what local firms have achieved in thinking about their marketing message. uuu STEMLEGAL (stemlegal.com) Steve Matthews and his group form a web development, publishing and strategy juggernaut for the legal profession. They are a local company with a national presence and influence. Steve is tireless — not only does he look after his legal marketing company, he manages slaw.ca — Canada’s online legal magazine, he runs lawblogs.ca — Canada’s comprehensive listing of Canadian Legal Blogs, legalpubs.ca — which tracks the latest in Canadian legal publications and runs ClawBies.ca — Canada’s annual legal blogging awards. uuu FISHMAN MARKETING (fishmanmarketing.com/blog-2) Ross Fishman, although located in Chicago, has a strong presence

here in Vancouver. His website is loaded with great advice and insights into the world of legal marketing. Review his numerous case studies to gain insights into his thinking and work. Subscribe to his blog to stay current on his innovative ideas. uuu THE RAINMAKERS BLOG (therainmakerblog.com) Stephen Fairley consistently receives accolades for perhaps the best legal marketing blog on the Internet. A recent post was one of my favourites: 5 Ways to Attract your Ideal Client. Another was: How to Determine Which Social Media Networks Work Best for Your Firm. uuu EVA CHAN (evachanweb.ca/blog) After practising advertising, marketing, and IT law at a national Canadian law firm for more than 10 years, Eva is now a social media strategist, consultant and trainer. More to the point, she provides social mediarelated services to lawyers and law firms. A ClawBie award winner, her blog evachanweb.ca/ blog has articles such as Social Media Opportunities and Risks, How To Write an Engaging Social Media Post and Twitter tricks and treats (aka tips). She asks (and answers) such questions as: What One Thing to Advance Women in Law Will You Do?

© 2019 David J. Bilinsky

DECEMBER 2019 / BARTALK

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barmoves Who’s Moving Where and When

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Liam Oster

Sarah C. Baddeley

joined Miller Thomson’s Vancouver office as an associate in the real estate group. Liam is a real estate and corporate/commercial lawyer with experience in commercial leasing, hotel and shopping centre management, and cannabis industry regulations.

joined Gowling WLG as an associate in their Securities group. Sarah practises corporate and securities law with emphasis on corporate finance and mergers and acquisitions for public and private companies.

Trudy Hopman

Karl Maier

joined Harper Grey LLP as associate counsel with their Family Law group.

Trudy was called to the BC Bar in 1991.

joined Beacon Law Centre to practice estate planning, business and real estate. Del Elgersma and Lianne Macdonald are pleased to welcome Karl.

Marla Mennie

Julie Gaydar

joined Harper Grey LLP as associate counsel with their Family Law group.

Marla was called to the BC Bar in 1995.

joined Lindsay Kenney LLP as an associate in the General Litigation group after completing her articles with the firm.

Lisa Newby

Michael J. Weiler

joined Harper Grey LLP as associate counsel with their Family Law group.

Lisa was called to the BC Bar in 1994.

joined the Employment & Labour group at Kane Shannon Weiler LLP with offices in Vancouver, Surrey, Langley, Morgan Creek and Abbotsford.

Ryan Chan

Mark Meredith

joined Harper Grey LLP as an associate with their Family Law and Workplace Law groups. Ryan was called to the Alberta Bar in 2014 and the BC Bar in 2016.

is a new partner in Clark Wilson LLP’s Tax group. He joins us from KPMG Law LLP and is a highly respected practitioner with more than 30 years of experience.

BARTALK / DECEMBER 2019

Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1912.

Teio Senda

Mollie Clark

joined Clark Wilson LLP’s Private Company Mergers & Acquisitions group as an associate.

joined Harper Grey LLP as an associate in their Family Law, Insurance and Health Law groups.

Zachary Rogers

Deanna Froese

is a new associate in Clark Wilson LLP’s Estates & Trusts group.

joined Harper Grey LLP as an associate in their Health and Workplace Law groups.

Denny Chung

Jaeda Lee

joined Clark Wilson LLP as an associate practising in the area of insurance, as well as infrastructure, construction and procurement.

joined Harper Grey LLP as an associate in their Insurance and Family Law groups.

DECEMBER 2019 / BARTALK

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barmoves Who’s Moving Where and When

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Dominic Wan

Karen Powar

joined Harper Grey LLP as an associate in their Health and Insurance Law groups.

joined Hamilton Duncan as an associate in its Litigation group.

Karen’s practice focuses on personal injury claims and insurance defence.

Jessica Wilson

Z. Kent Sullivan

joined Harper Grey LLP as an associate in their Business Law group.

joined Hamilton Duncan as a senior associate in its Commercial Litigation group. Kent’s practice focuses on complex litigation matters, including real property, business, and land disputes.

Valerie Munn

James Woods

joined Hamilton Duncan as an associate. Valerie has accumulated nearly 20 years of litigation experience with a focus on complex personal injury claim and an interest in wills & estate and employment law.

joined Hamilton Duncan as an associate practising in the areas of corporate and commercial, real estate and wills and estates.

Curtis Ronning

Scott Morishita

joined Rice Harbut Elliott LLP as an associate, continuing to practice personal injury law.

joined Rice Harbut Elliott LLP as associate counsel.

Jesse Kendall

Adrienne S. Smith

joined Rice Harbut Elliott LLP as an associate. Jesse’s practice areas include plaintiff-side personal injury, medical malpractice and class action law.

opened a solo practice and is accepting referrals in human rights, labour & employment, drug policy, election law, government relations, and transgender inclusion.

BARTALK / DECEMBER 2019

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