BarTalk June 2020 - Emerging Law in a Changing World by The Canadian Bar Association, BC Branch

June 2020 | bartalkonline.org

EMERGING LAW in a CHANGING WORLD

COVID-19 | EMPLOYMENT + FAMILY + ELDER LAW | GENETIC GENEALOGY

JUNE 2020

VOLUME 32 / NUMBER 3

Contents

Departments

3 FROM THE PRESIDENT Nobody Told Me There’d Be Days Like These by Ken Armstrong 5 EXECUTIVE DIRECTOR Transforming Justice by Kerry Simmons, QC 10 INDIGENOUS MATTERS Exercising Indigenous Sovereignty in the Pandemic by Dallas Tooshkenig and Patricia Barkaskas 11 Cutting Connections to Indigenous Children in Care During COVID-19 by Frances Rosner 16 PRACTICE TALK Once in a Lifetime Opportunity by David J. Bilinsky 17 DAVE’S TECH TIPS 24 NOTHING OFFICIAL Liberty, Tyranny and the Madness of Clowns by Tony Wilson, QC

Sections

18 SECTION UPDATE Section Meetings Addressing Emerging Law in a Changing World

Features 6

COVID-19: How the BC Provincial Court is Adapting to the Pandemic by Chief Judge Melissa Gillespie

Amendments to the Employment Standards Act in Response to the COVID-19 Pandemic by Elisabeth A. Sadowski

The New Era of Employment Law by Chris D. Drinovz

Rights of Vulnerable Adults During COVID-19 by Sara Pon and Krista James

12 LegalHelpBC.ca Answers COVID-19 Questions by Nora Bergh 13 Genetic Genealogy Meets the Law by Sean Vanderfluit 15 COVID-19 and Family Law by Samantha J. de Wit and Bianca M. Kendregan

Inside This Issue “Chuck Norris has been exposed to the Coronavirus. The Coronavirus is now in quarantine for two weeks.” Nothing says “a changing world” quite like a new pandemic. Many of this issue’s articles contain commentary, information, and reflection on the ways in which the practice of law has, and will continue to be shaped (and hopefully modernized), in reaction to acute demands surrounding COVID-19. As Dave Bilinsky says, COVID-19, as much as it presents a terrible human cost it also presents “a once in a lifetime opportunity to examine how we do things and implement changes that can make the system work better.” It gives us the chance to make the world a better place in the long run. Inside, employment, families, and Indigenous sovereignty is discussed in relation to COVID-19. You will also find articles on the changing landscape around victims of sexual violence, use of commercial DNA services by police, and rights of children under the changing Divorce Act. — Brandon D. Hastings Chair, BarTalk Editorial Board

News and Events 20 BC WLF Update 21 Life in Law

PD On-Demand

23 CBABC Advocacy Update 26 Tips from Courthouse Libraries BC CLEBC Update 27 Returning to the Office Also in This Issue

Guests

14 The Protection of Public Participation Act by David Wotherspoon and Komal Jatoi

19 PROFESSIONAL DEVELOPMENT

22 Listening to Children by Michael Butterfield and Jayne Embree 2

BARTALK / JUNE 2020

27 LAW FOUNDATION OF BRITISH COLUMBIA 28 BAR MOVES

FROM THE PRESIDENT KEN ARMSTRONG

Nobody Told Me There’d Be Days Like These Reflections on adaptations and durable change

wrote this article approximately a month and a half into the COVID-19 public health emergency. By the time you read it another month will have passed. As we have seen over the last several weeks, these are uncertain times with news, rules and recommendations changing daily. It is worth reflecting on where we came from, where we currently are, and where we might go. Prior to this pandemic, people often said if we put a lawyer who practised 100 years ago into today’s courtroom, that lawyer would be pretty comfortable with the situation. I suggest, though, if you put that same lawyer into today’s law office the same would not be true. One hundred years ago, photocopiers didn’t exist. Fifty years ago, law offices had manual typewriters, fax machines were a relatively new innovation, and personal computers were under development. Twentyfive years ago, desktop computers were common, but email was a unique method of communication. Cellular phones were novel and were only phones. However, by 2020, email and smartphones have become ubiquitous. Further, in 2020, we can electronically file court documents, land titles documents and court rules permit electronic service of documents. The government officially announced a public health emergency on March 17, 2020. Public health rules and recommendations evolved over the first week or two of the public health emergency. In BC, we are unable to have gatherings of more than 50 people until at least May 30, 2020 and we

are strongly recommended to stay at home and practice physical distancing. As Branch President, I have had to change the way I’ve connected with our members. Instead of traveling the province I’ve been hosting virtual roundtables with lawyers across the province. I’ve heard how our members are adapting in the public health emergency and I’ve heard what our members would like the CBABC to advocate for to ensure we can continue to provide legal services to British Columbians. The provincial government has deemed legal services, lawyers and paralegals as essential services, meaning law firms “should and are

I am optimistic we will see durable change and adaptation arise from this crisis. encouraged to remain open.” Law offices across the province have adapted different models for remote work: some offices remain open with skeletal crews on-site, some firms have scheduled who can be on-site on any given day, other firms are simply encouraging and supporting staff to work remotely were possible. Many firms have come to rely upon video conferencing technology for periodic team meetings, client meetings, etc. Video conferencing is now available for mediations and examinations for discovery.

Law firms have also developed health and safety procedures for in-person meetings, including sanitation protocols and physical distancing protocols. More and more law firms are accepting service by email. The courts have suspended regular operations, although urgent matters are being heard and the use of virtual hearings is increasing. We don’t know how long we’ll be in a public health emergency. There is talk of three phases to a new normal: react, respond, and recover. As I write this article, we are in the “respond” stage and we remain so as you read this article. However, as we move into the recovery stage, I speculate about what durable change can and should come out of this public health emergency. Will we use video conferencing technology more in our day-to-day practice? Will we come to accept videoconferencing or teleconferencing as the normal way to conduct procedural hearings and applications? Will these changes make us more efficient as counsel? Will we embrace working remotely — either part of the time or all of the time? Will accepting service by email become the norm? While we can’t predict the future, I am optimistic we will see durable change and adaptation arise from this crisis. Stay safe.

Ken Armstrong

president@cbabc.org JUNE 2020 / BARTALK 3

BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Brandon Hastings

EDITORIAL BOARD MEMBERS

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

KEEP CALM

BARTALK SENIOR EDITOR

Carolyn Lefebvre

STAFF CONTRIBUTORS

Alyssa Brownsmith Michaela David Travis Dudfield Sanjit Purewal

The BC Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, BC V6B 5T3 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. BarTalk is produced on the traditional and unceded territory of the Coast Salish peoples, including the territories of the Musqueam, Squamish and Tsleil-Waututh Nations. © Copyright the British Columbia Branch of the Canadian Bar Association 2020.

IN THE 23 YEARS SINCE ZSA FIRST OPENED, THERE HAVE BEEN SOME DARK TIMES WHEN OUR MESSAGE TO THE LEGAL COMMUNITY WAS SIMPLE; “KEEP CALM” THIS IS ONE OF THOSE TIMES.

THIS PANDEMIC, WHICH HAS DRIVEN US ALL TO OUR HOMES, AND MOST BUSINESSES TO PONDER FROZEN DEMAND,

IS LIKELY THE MOST SERIOUS ISSUE FACING THE WORLD IN

MANY DECADES. WE ARE CERTAINLY IN FOR BUMPY TIMES, HOWEVER THE LEGAL INDUSTRY WILL WEATHER THIS

STORM AS IT HAS WEATHERED OTHER STORMS OVER THE

CENTURIES; BY PROVIDING, IN A PROFESSIONAL MANNER, AN ESSENTIAL SERVICE TO OUR COMMUNITIES.

ON THE OTHER SIDE OF THIS STORM, WE WILL TOGETHER

ENCOUNTER NEW CHALLENGES AND OPPORTUNITIES. AS

ALWAYS, ZSA WILL BE HERE TO ASSIST CANADA’S LAWYERS AND LEGAL AND BUSINESS COMMUNITIES WITH CAREER PLANNING AND HIRING STRATEGIES.

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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EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Transforming Justice

Ask, advise, align, act, but above all, allocate the money

his is it. The opportunity we have been waiting for, the time when intense need in our justice system might be met by provincial government funding. Can you feel the momentum, the excitement, the possibility? You would be forgiven if you answered, “maybe?” At this time when the big, bright spotlight on our justice system (within and out of courts) may have caught the eye of our politicians, let’s be clear about what has already happened and what must happen next. We have asked many questions about what to do about our justice system. Think of all the consultations initiated by government, including green papers or through external reviews. Name the topic, there has been a consultation. For years. Useful consultations result in advice. CBA has offered advice, as have the participants at every Justice Summit, Cowper, Maclaren, the Justice Review Task Force in any decade, the Provincial Court, the Supreme Court, and the list goes on. All of this is documented in reports. So many reports! What could be done to improve the experience of litigants, be more effective, use various technologies and streamlined process, and reduce costs has been stated clearly and repeatedly. And much more often than we acknowledge or are even aware, the views of the key stakeholders in the justice system align. Despite some efforts to suggest otherwise, they do. We see this in the Justice and

Public Safety Plan, and the First Nations Justice Strategy, and the Triple Aim Approach, the Digital Transformation Strategy, to name just a few. The summits, task forces, and networks bring together judges, lawyers, the government’s public servants, and more recently, the litigants. The recommendations often reflect an informed and aligned view from people who know what reforms are needed, and are ready to act. These actions often begin as a pilot project. They may be small, perhaps confined to a few registries. A current example is the Family Justice Early Resolution and Case Management Project in Victoria. That project demonstrates a willingness to change, a culture of experimentation, and an understanding that legal issues that involve children must be resolved quickly. Current initiatives reflect the values of a collaborative (multi-disciplinary), user-centered, experimental, and evidence-informed approach to transforming our justice system. Where we haven’t seen much movement is in the allocation of funding to support British Columbia’s justice system. Every year the province’s Standing Committee on Finance engages CBABC and others to learn what needs to be done. Every year CBABC asks for increased funding to our courts’ basic infrastructure of people, technology, and the capacity to innovate more. Every year

we are disappointed. How can it be that the core of our justice system is starved of the necessary funding to meet the demands of its users in the 21st century? We are about to enter a new round of budget consultations and submissions to government. The challenge for our politicians and their advisors is considerable what with the additional pressures brought about by the effects of the COVID-19 pandemic. The approach and priorities of the past must, out of necessity, be set aside. That includes the past approach to the funding of our justice system. So we come back to the opportunity. Legal system stakeholders have had the task forces, action committees and reports. We don’t need to seek new ideas. We know what needs to be done, what needs to change and have demonstrated we are ready to do it. To see an evolution in the courts themselves to include more remote technology, more paths in and out of the judge’s courtroom, and timely justice, government must allocate funding through the Ministry of Attorney General to courts and other key parts of the overall justice system. CBABC will continue to make this point.

Kerry L. Simmons, QC

ksimmons@cbabc.org JUNE 2020 / BARTALK

feature CHIEF JUDGE MELISSA GILLESPIE

COVID-19: How the BC Provincial Court is Adapting to the Pandemic

pen, accessible courts are fundamental to our democracy. The rule of law depends on it. However, the public, court staff, counsel, judges, litigants and the media need to know that when they come to courts they will be safe. In the face of the unprecedented COVID-19 crisis, the BC Provincial Court (the “Court”) has acted swiftly to maintain the public’s right of access to the court and the need to keep people safe. Each year, the Court receives over 110,000 new cases encompassing criminal, family, child apprehension and small claims matters, along with an additional 80,000 violation tickets. Clearly, in the face of COVID-19, limiting the number of matters heard has had a profound impact on the public and their access. Initially, to ensure public safety, only the most urgent matters were heard by video or audioconferencing at six hub courts across the province. Video appearances save the police and sheriffs from having to transport accused persons to courts for bail and sentencing hearings. Even before the coronavirus focused attention on remote hearings, the Court was working with government to improve access to justice by expanding videoconferencing capacity across the province and at police detachments. However, the state of technology and existing bandwidth has presented challenges and there remains an urgent and pressing need for government to continue to invest in and improve technology for our courts. Earlier this year, the Court launched digital access for judges to court files, 6

BARTALK / JUNE 2020

and this has enabled our judges to work remotely during the COVID-19 pandemic. More recently, we have begun using Microsoft Teams (“Teams”) as our virtual platform. Email (and when necessary, telephone) filings are now accepted to enhance access and keep court staff safe by eliminating the need for inperson attendance at registries. In late April, we commenced our plan to recover some of the Court’s operations. In our Small Claims and Family divisions, we are now conducting conferences by telephone on matters that were previously adjourned due to COVID-19. We are also conducting pre-trial conferences on trial matters with a view to determining if resolution is possible, if admissions can be made, and if the trial can be heard using Teams. Justice Access Centres are now working virtually to assist family litigants with obtaining referral services,

The BC Provincial Court has acted swiftly to maintain the public’s right of access to the court and the need to keep people safe. mediation, and document preparation so they are able to have more focused court appearances. The Court is hoping the early resolution model in operation in Victoria, where all new family files commence at these

centres, will be rolled out in other larger locations across the province to assist parties in obtaining orders and resolutions. The Court is also examining whether a centralized process for applications to vary child support can be developed in this COVID-19 period. In child protection matters, we are focusing on expanding our webbased video capacity in remote communities to increase access to proceedings for parents and Indigenous communities. In our criminal division we are now conducting pre-trial conferences on all criminal trials that are longer than half a day. Counsel and the judge attend these conferences virtually using Teams and the judge proactively engages with counsel who are expected to be prepared and able to make decisions. If resolution is not possible, then files are case-managed to restrict the use of court time to what is absolutely necessary to ensure a fair trial in this time of limited court resources. Remote sentencing hearings are now available for out-of-custody criminal matters not involving incarceration and the Court is also working to have all bail hearings conducted using Teams. Recovery of the Court’s work is difficult but it presents us with opportunities to use technology and other innovations to improve access to justice, provided we bear in mind the need to ensure we maintain access for those to whom technology presents barriers, so everyone is able to access courts to have their legal issues resolved by fair and impartial judges. Chief Judge Melissa Gillespie, Provincial Court of British Columbia.

feature ELISABETH A. SADOWSKI

Amendments to the Employment Standards Act in Response to the COVID-19 Pandemic

oth the provincial and federal governments have made sweeping changes in response to the COVID-19 pandemic in an effort to support businesses and individuals. One of those changes includes the BC government’s amendments to the Employment Standards Act [RSBC 1996], c. 113 (the “ESA”) with the aim to support employees during the pandemic and in the long term. In late March of this year, the BC government introduced and passed Bill 16 — 2020: Employment Standards Amendment Act (No. 2), 2020, which provides employees with unpaid, job protected leave due to illness or injury. It also outlines a new section that is specifically related to leave during the COVID-19 pandemic. ILLNESS OR INJURY LEAVE Section 49.1 of the ESA states that after 90 days of consecutive employment with an employer, an employee is entitled to up to three days of unpaid leave in each employment year for personal illness or injury. The legislation requires the employee to provide the employer with sufficient proof of being entitled to illness or injury leave. This section will stay in place after the COVID-19 pandemic is over. COVID-19-RELATED LEAVE Section 52.12 specifically explains the circumstances under which an employee qualifies for leave related to the COVID-19 pandemic. An employee is entitled to unpaid leave under this section if:

the

employee has been diagnosed with COVID-19 and is acting in accordance with the instructions or advice of a medical health officer, or advice of a medical practitioner, nurse practitioner or registered nurse;

the

employee is in quarantine or self-isolation in accordance with an order of the provincial health officer, an order under the Quarantine Act (Canada), guidelines of the British Columbia Centre for Disease Control, or guidelines of the Public Health Agency of Canada;

the

employer, due to the employee’s exposure to others has directed the employee not to work;

the

employee is providing care to an “eligible person” (defined below) because of the closure of a school or daycare of similar facility;

the employee is outside the province

and cannot return to BC because of travel or border restrictions; or a

prescribed situation exists relating to the employee.

An “eligible person” includes: (a) a child who is under the day-to-day care and control of the employee; (b) a person who is 19 years of age or older, and is unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of the person’s parent or former guardian, and is under the day-to-day care and control of the employee, who

is the person’s parent or former guardian; and (c) a prescribed person. The leave for an employee is not limited in time, but if requested by their employer, an employee must, as soon as practicable, provide the employer with reasonably sufficient proof of the circumstance that applies to the respective employee. The employer must not request, and an employee is not required to provide, a note from a medical practitioner, nurse practitioner, or registered nurse. These provisions are in force from January 27, 2020. Thus, if an employer terminated an employee due to one of the COVID-19 circumstances described above, between January 27, 2020 and March 23, 2020, the employer must offer the employee re-employment in the same or a comparable position. Unlike Section 49.1, which pertains to illness or injury leave, the provisions under Section 52.12 are temporary measures that are tied to the COVID-19 emergency and they will be repealed when the pandemic is over. It is important for employees and employers to be aware of their rights and obligations under the latest ESA amendments, particularly, given the potential liability which may arise if one party fails to follow these provisions. As this area of law is in a state of almost constant growth, it is crucial that employment law counsel stays abreast of developments and, where practical, communicate the same to their clients. For business owners and employees struggling with the ever-changing realities of their duties and obligations at this time, the revised ESA is one more set of messages that needs to be clearly communicated by both the legal profession and the government. Elisabeth is a litigation lawyer in downtown Vancouver practising in personal injury, employment, and general civil litigation. JUNE 2020 / BARTALK

feature CHRIS D. DRINOVZ

The New Era of Employment Law How COVID-19 is changing the workplace

s COVID-19 has now reached every part of the world, both employers and employees have been confronted with the unique workplace issues it presents. The advice that employment lawyers used to give on issues such as work refusals, sick leave, layoffs, and accommodation (to name a few) may no longer be right in today’s unprecedented circumstances. While it is difficult to predict what the future holds, the impact of COVID-19 will be felt in the workplace long after the pandemic is over. Pre-crisis, the common law was well-settled that absent an express provision in the employment contract (except for seasonal work) an employee who was laid off without their consent could claim a constructive dismissal, triggering the employer’s obligation to pay severance. Any unilaterally imposed fundamental change in hours, compensation, or duties would also constitute a constructive dismissal. The assessment of reasonable notice is determined with reference to the well-known Bardal factors: the employee’s age, length of service, the character of employment, and the availability of similar alternative employment. In the heart of the crisis, a new reality was defined by a provincial state of emergency and various orders from health officials requiring many non-essential businesses to close or significantly reduce operations. To survive, thousands of employers 8

BARTALK / JUNE 2020

had to scale back their workforce to reduce their biggest expense, payroll. Employees in turn chose to accept wage reductions or temporary layoffs to keep their jobs. The advice that lawyers gave was necessarily focused more on the practical than the legal. The legal landscape shifted constantly and produced a steep learning curve. The provincial government introduced the COVID-19 leave to provide job security. The federal government rolled out billions in support, including the 75% Canada Emergency Wage Subsidy touted as the largest economic program in Canada’s history. It also streamlined existing programs such as the Employment Insurance SUB Plan and Work-Sharing programs to fit the circumstances. Professional advisors had to study these programs quickly and advise their clients on how to make the best use of them. The effective use of these programs will serve employers well, both now and into the future. When the dust finally settles, the legal fallout of the crisis will be enormous. Class actions have already been launched. The courts will be asked to reconsider foundational principles of employment law. For example, whether a temporary layoff or a substantial reduction in hours amounts to a constructive dismissal

in the circumstances of COVID-19 and if the common law doctrine of frustration (or its codification in section 65(1)(d) of the Employment Standards Act) might apply to relieve an employer of its severance or termination pay obligations if it was forced to reduce operations or shut down. Judges will also consider the effects of the crisis on the job market when assessing the employee’s duty to mitigate and whether the length of the reasonable notice should be increased to reflect the unavailability of work. All of this will require lawyers to rethink how they advise their clients in the new era of employment law. COVID-19 has also caused a rapid and a radical shift in workplace dynamics. The previously slow evolution from the autocratic leadership model of the past has now accelerated toward a more balanced environment based on mutual respect, inclusivity, flexibility and shared goals. Now is the time for innovation and creativity. Companies resistant to work-from-home policies have been pushed to embrace technology and allow remote working. Health, safety, and employee well-being now overshadow the bottom line. Accommodation of family circumstances through flexible schedules is essential, as the nine to five no longer exists. The continuation of these initiatives into the “new normal” will be foundational to the recovery of the economy and will likely define the businesses that come out ahead of the game.

Chris is a litigator leading the Employment & Labour group at Kane Shannon Weiler LLP.

feature SARA PON AND KRISTA JAMES

Rights of Vulnerable Adults During COVID-19 Supporting decision-making capacity

ometimes family and health care professionals do not respect the decision-making rights of older people. This is especially true for people living with dementia who face assumptions that they cannot understand information and make their own choices. Older adults have been greatly impacted by the COVID-19 pandemic. Many need to make critical health care decisions, or plan for incapability and serious illness. During this time of heightened risk, fear, and health care system stress, it is important to make sure we are not undermining the autonomy of older adults. Decision-making capacity depends on the decision at hand: we can be capable of making some decisions, and not others, depending on our ability to understand different kinds of information. Decision-making capacity can fluctuate as a result of: time of day; medication issues; anxiety, depression or trauma; and environmental factors, such as noise. A person with dementia may be capable of making health care decisions, particularly if they have a supporter available to help them. Research has shown supporters can help people to understand information, consider the consequences of a decision, express needs, wishes, and values, and communicate effectively with health care professionals. BC laws recognize the right of an adult to have a supporter present to help with decision-making and communication. An adult can appoint a representative for health and personal care

using a representation agreement. Further, the Health Care (Consent) and Care Facility (Admission) Act protects the right to have a supporter participate regardless of whether they have appointed a representative. Importantly, even if an adult is not capable of making health care decisions independently, they still have the right to be consulted during the decision-making process, and to have their pre-expressed wishes and values respected. Physical distancing can make it difficult to involve a supporter or substitute decisionmaker. Technology can be an ally in supporting connection and participation. However, this approach requires extra vigilance for undue influence and other abusive dynamics, as well as support to ensure people with disabilities can properly access technology. Appointing a trustworthy representative can support decisionmaking inclusion for older people and people with disabilities. Many people will hire a lawyer to draft their representation agreement. A good representative is a person who: Knows

the person well;

Respects

their autonomy;

Proactively

consults regarding needs and wishes; and

Communicates

effectively with health care professionals.

Creating a disability-friendly environment can help increase the ability of

people living with dementia to participate in decision-making. You can use these strategies when working with older adults: Use

clear and simple language.

Spend

time with the person to learn about their communication needs and abilities.

Allow

the adult more time to describe their needs and make decisions.

Meet with the adult in a quiet room. Allow

the adult to have a supporter to help them understand and communicate.

Meet

with the adult at the best time of day for them.

Even

if the adult is not capable, involve them as much as possible in the decision.

Inclusive strategies can be critical for older adults; however, ultimately, they enhance accessibility for everyone. For a booklet and animated videos on the health care decision-making rights of people living with dementia, visit the Canadian Centre for Elder Law’s website (bcli.org/ccel). The booklet is available in English, French, Chinese, and Punjabi. These tools were funded by the Law Foundation of BC, the Vancouver Foundation, and the Notary Foundation. Sara is a Legal Researcher and Krista is the National Director at the Canadian Centre for Elder Law. @Sara_Pon — @KristaElan JUNE 2020 / BARTALK

Indigenousmatters DALLAS TOOSHKENIG AND PATRICIA BARKASKAS

Exercising Indigenous Sovereignty in the Pandemic

lthough this pandemic has brought major shifts in the ways we are working, relating, and coping with new realities of daily life, the tide of Rights Recognition seems to have largely remained still. Even during this unprecedented trying historical event, Indigenous Nations are having to remain vigilant in exercising and protecting inherent rights. British Columbia distinguished itself from other territories and provinces in Canada when the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) was passed into provincial legislation through Bill 411. The provincial legislation seems a signal that the provincial government is prepared to reconcile its relationship with Indigenous peoples within British Columbia. For a long time, UNDRIP has been seen as merely aspirational, without enforcement mechanisms to uphold the rights it enumerates. With UNDRIP in force and effect provincially, it should be able to be used to justify various acts of sovereignty exercised by Indigenous Nations and communities, including to protect their people and traditional lands from the infiltration of COVID-19. Since COVID-19 took root in Canada, Indigenous Nations across the province have declared “States of Local Emergency” to limit the possibility of exposure to members and residents as the virus has continued to rapidly spread. These declarations often came after earlier proactive attempts to safeguard communities were ignored. Indigenous Nations, both urban and remote2 had already been exercising their decision-making 10

BARTALK / JUNE 2020

authority to protect their people and lands by implementing curfews, creating task forces and internal relief funds, banning non-essential travel out of or into community, closing public lands, beaches, and harbours, calling for public shaming of those who violated these orders, redistributing goods, passing by-laws

allowing for complete community lockdowns lasting 14 days, and the imposition of fines for those found to violate these measures. The Heiltsuk Nation implemented almost all the aforementioned measures starting with a formal travel advisory. Issued March 27, all nonHeiltsuk members and non-residents will be turned away unless they are essential staff. This applies to travel by air, ferry and vehicle. A community lockdown was then ordered; members and residents who did leave community during the lockdown period could be dis-allowed re-entry. Next, the Shearwater harbour, which is a usual refueling stop for those traveling by boat to Alaska, refused service and publicly shamed those who ignored the radio notifications that the community was closed to non-members and non-residents. Finally, on April 2, the Heiltsuk Nation enacted the “Heiltsuk Disease

Emergency By-law”3 allowing the Heiltsuk Tribal Council, in conjunction with the governing body for rights and title, to declare a temporary “disease emergency” due to COVID-19. Temporary measures could include mandating the enforcement of fines up to $1000 and or imprisonment not exceeding three days. The inherent jurisdiction of Indigenous Nations was undermined by the Minister of Public Safety, Mike Farnworth, on March 26 when he rescinded the declarations made in all places except for Vancouver. The decision has been justified because the government wants all communities to act in co-ordination with provincial leadership to avoid a patchwork response to the virus. This despite the fact that Bill 41 should mean Indigenous Nations have the right to decide what happens on their traditional lands and jurisdiction over local affairs as well as the right to health, housing, security of the person. Indigenous leaders and their communities must continue guarding themselves against the further infiltration of both the virus and colonialism. Bill 41, Declaration on the Rights of Indigenous Peoples Act, 2019, 4th Sess, 41st Parl, British Columbia, 2019 (assented to 28 November 2019) SBC 2019, c 44. 2 Some Nations exercising their sovereignty include the Heiltsuk, Nuxalk, Wuikinixv, Kitasoo/Xa’xais, Haida, Haisla, Hagwilet, Nisga’a, Witest, Toosie, Tl’esqox, Tl’etinqox, Xeni Gwet’in, Hesuiate, Ahousit, Ucluet, Tla-oqui-aht, Nuu-chah-nulth, Tseshaht, Musqueam, and Skwxwú7mesh. 3 Disease Emergency By-law, s.81(1)(a) of the Indian Act, R.S.C. 1985, c.I-5. 1

Dallas Tooshkenig and Patricia Barkaskas.

FRANCES ROSNER

Cutting Connections to Indigenous Children in Care During COVID-19 In response to COVID-19, the Ministry of Children and Family Development (“MCFD”) developed and implemented a blanket policy suspending in-person visits between children in care and their families shortly after the onset of the pandemic.1 Inperson visits may still go-ahead in “exceptional circumstances” by seeking and obtaining approval from a Designated Director — approvals must be consistent with the parameters and instructions from the Provincial Health Officer (“PHO”). However, the PHO has not suggested eliminating contact between children and their parents residing outside their home and children continue to move between households in other co-parenting situations. This is not the time to be breaking connections to children. The PHO suggested that essential service providers continue to provide services to vulnerable populations and adapt as necessary in light of COVID-19 — the MCFD’s response was to eliminate in-person access. Unless an exception is granted or the court intervenes, children in care will only have access to their parents and families through virtual contact such as telephone, text, email or skype regardless of the child’s age. The lack of in-person visits over an extended period of time will adversely affect thousands of children in care and their families throughout BC — disproportionately impacting Indigenous children because they continue to account for two-thirds

of children in care. The MCFD acknowledges that “[m]aintaining connections and facilitating access between children, youth and their families is in the best interest of children and youth and is essential to their well-being especially now during the COVID-19 pandemic.” But, in light of “facility and office closures, physical distancing and service providers being unable to provide transportation and supervision” inperson visits have been suspended, including with families that have unsupervised visits.2 Meanwhile, courts presiding over family law matters dealing with multiple households in co-parenting arrangements are routinely deciding that it is best for children to maintain parenting schedules and physical contact with both parents unless it can be shown that the access parent is not complying with COVID-19 safety measures. In Ribeiro v. Wright, Justice Pazaratz (“ONSC”) stated the following: “A blanket policy that children should never leave their primary residence, even to visit their other parent — is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”3

undertook an individualized assessment despite the society’s blanket policy against in-person access, and decided that the parent’s COVID-19 protocols were appropriate. Further, “it is vitally important that R.O. has the opportunity to maintain and grow his relationship with his parents and...develop a secure space as a member of his family...”5 Video access was deemed inappropriate for this infant child. The MCFD should work toward an individualized assessment of each child in care to determine how essential family, community and cultural connections can be preserved safely in keeping with the best interests of the child. Now is the time to employ less intrusive measures and seriously consider letting children go home to their families. The courts in BC have to perform their gate-keeping role diligently to ensure that decisionmaking is centered on the child’s safety and well-being. Adopting the MCFD’s blanket approach to eliminating in-person visits is unfair to Indigenous children and all children in care for that matter. These vulnerable children are no less worthy of a probing assessment than other children involved in family law proceedings. bit.ly/bt2006p13-1 Ibid. 3 Ribeiro v. Wright, 2020 ONSC 1829 4 Children’s Aid Society of the Region of Halton v. R.O. 5 Ibid. at para 64 1

In keeping with the line of reasoning in Ribeiro, the court decided in Children’s Aid Society of the Region of Halton v. R.O.4 that a 16-month old boy would continue to have in-person access to his parents. The court

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

JUNE 2020 / BARTALK

feature NORA BERGH

LegalHelpBC.ca Answers COVID-19 Questions

New gateway website improves A2J

s a result of the COVID19, a series of Canadian and BC government policies have been announced that change the individual rights and responsibilities of British Columbians. There are new rules and policies related to health, courts, employment, and housing, with new announcements coming daily. People are facing greater uncertainties in these unprecedented times. The coronavirus has created a need for British Columbians to be able to access current and reliable COVID-19 legal information and the BC public legal education and information (“PLEI”) sector has responded. Legal Aid BC, People’s Law School (“PLS”), Courthouse Libraries BC (“CLBC”), PovNET and many others have moved quickly to adapt services and publish relevant information. The COVID-19 legal information published by a range BC PLEI organizations demonstrates the strength of our sector in BC. Yet it can be a challenge for people to find the correct information. People are using Google more and more to find answers to their legal questions. British Columbians looking for current COVID-19 legal information on health, family and work need to filter through several search results on a topic, which is often confusing. They then need to find reliable sites and visit a series of different government and PLEI websites to find the current and complete information. Determining which source to rely on is a lot to ask of people who are already overwhelmed. 12

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To better support the public in accessing the broadest range of COVID-19 legal information from one primary source, the Justice Education Society (“JES”) developed LegalHelpBC.ca. This new website publishes COVID-19 legal information in question and answer format, collected from over 20 organizations. To ensure the currency of the infor-

mation in these fast-changing times, reviews and updates are done daily. Aside from the broad range of COVID-19 legal information on the website, a key feature of LegalHelpBC.ca is direct access to Ask JES legal help services. Since 2013, Ask JES has provided free answers to legal questions by phone, live chat, or text. During COVID-19, Ask JES has extended hours, providing personalised live help weekdays from 10:00 a.m. to 2:00 p.m. To date, Ask JES has responded to more than 20,000 public inquiries. JES employs UBC law students, through the Law Students Legal Advice Program as first responders. Complex inquiries are escalated to JES staff lawyers. In all cases, only legal information and referrals are provided, not legal advice. Ask JES is focused on guiding people through

the overabundance of information online and connecting people with the assistance they need. In advance of going live, JES reached out to the BC Law Foundation, Legal Aid BC, PLC and CLBC to obtain support for sharing their published information on LegalHelpBC.ca. Their support has been paramount in being able to provide British Columbians with up-to-date information. “BC PLEI organizations are working hard to provide legal information and services during COVID-19,” said Sonia Poulin, CEO of JES “LegalHelpBC. ca provides British Columbians with a starting point to get answers to their COVID-19 legal questions.” At this time, JES is asking for support from the BC’s legal community. Direct linkages to LegalHelpBC. ca will boost the website’s prominence in search results, helping more British Columbians to discover this important new resource. Furthermore, volunteers interested in contributing content or doing a legal review of content are always welcome. It’s important for people to feel confident in the information they find online. By collecting information from numerous credible sources, people are able to easily find the information they seek in one place. They can then dive deeper into their questions on other websites with more confidence. In these challenging times working together is key to being able to provide some sense of certainty and ease to people. ABOUT JES BC — The Justice Education Society of BC is a non–profit organization with over 30 years of experience providing public legal education & information and justice system capacity building in Canada and overseas. Nora Bergh is Assistant Director in BC and Digital Programs for JES where she uses her legal knowledge and experience to help educate the public.

feature SEAN VANDERFLUIT

Genetic Genealogy Meets the Law Police use of commercial DNA services

aliva has long been important for genealogical research. Years ago, genealogists licked many stamps, conducting much of their research by mail. Today, genealogists still use saliva, except now they spit into a vial that they then mail to a lab. This process is part of a rapidly burgeoning area of research known as genetic genealogy. Genetic genealogy is the use of DNA to complement traditional methods of genealogical research. Its primary purpose is to provide further evidence of familial relationships. With this evidence, one can identify ancestors or current, previously unknown, relatives. Genetic genealogy involves submitting a sample of DNA (i.e. saliva) to a commercial DNA service (e.g. AncestryDNA, 23andMe). The service compares the genetic markers of the customer’s DNA with other samples in its database. The service provides the customer with a projection of their likely biogeographical origin or connects them with other customers with significant matches and an estimate of their degree of relationship (e.g. first cousins). Many commercial services only connect users to their other clients and are limited to the information in their own databases. As well, only paid users can access this information. In order to garner more connections, users can upload their data to an open source service that can compare their data with that of different testing companies. Two of the most popular are GEDmatch and FamilyTreeDNA. While this new technique caught the genealogy world by storm, it also garnered the attention of law enforcement, particularly in the United States.

It is what Blaine Bettinger, an American lawyer and genealogist with a PhD in biochemistry, describes as Investigative Genetic Genealogy (“IGG”).1 IGG is now attracting the attention of Canadian law enforcement, including the VPD. While law enforcement has long used DNA evidence, it had been restricted in doing so. In Canada, police rely on a national database of the DNA of criminal offenders, governed by the DNA Identification Act. By its nature, there are limited samples for comparison. Furthermore, the analysis is of the cell nucleus, which is of limited assistance in identifying familial relationships. There must be a 100% match for use and it cannot be used for familial searches. In comparison, commercial DNA services have larger databases and significantly more samples. As well, they usually conduct a “SNP” analysis, which can identify even fairly distant cousins — even those a suspect might not know of. IGG came to public prominence in the “Golden State Killer” case. Using a DNA sample from a rape test kit, police uploaded data to GEDmatch. (At the time, this was permitted by GEDmatch’s terms of use.) Using the data they obtained, the police worked with a professional genealogist to build a family tree. It is often overlooked that IGG requires traditional genealogy research methods in conjunction with the DNA evidence. The results resulted in the arrest of Joseph DeAngelo. As of March 2020, his case was still pending trial as DeAngelo negotiates a plea deal.

IGG also gained media prominence in BC, in the case of William Talbott. Talbot was convicted in Washington state for the murder of a Saanich couple 32 years ago. This is the first conviction in US case law resulting from IGG. An appeal is pending. IGG is not without controversy. On one side is the interest in solving crimes. On the other are privacy and Charter concerns, and not only those of an accused or users of commercial DNA services. People who have never even used a genetic DNA service can be connected through IGG techniques. There are also concerns about the diversity of the biogeographical groups represented in the commercial databases. As a result, many services updated their terms of use. For example, 23andMe developed a “Guide for Law Enforcement” and GEDmatch now requires an opt-in by customers, expressly authorizing police use of their data. There was a significant drop in the commercial DNA testing business due to privacy concerns when IGG came to prominence after DeAngelo’s arrest. These developments have significantly reduced the ability to conduct IGG. There remains little appreciable law governing IGG in Canada. This will undoubtedly change in the near future. In the US, the Department of Justice developed an interim policy governing the use of IGG by agencies under its authority. IGG will be a growing area of law that the criminal bar will quickly have to adapt to. In the meantime, IGG continues to make waves in popular culture, with pioneering IGG consultant CeCe Moore recently announcing her upcoming television series on the subject. You can watch a February 2020 talk Bettinger gave on IGG at: bit.ly/bt0620p24-1. 1

Sean Vanderfluit has been doing genealogy since before he was 10. He is a Senior Review Officer at WorkSafeBC. JUNE 2020 / BARTALK

guest DAVID WOTHERSPOON AND KOMAL JATOI

The Protection of Public Participation Act Application: victims of sexual violence

he Protection of Public Participation Act, SBC 2019, c 3 (the “PPPA”) targets litigation aimed at silencing debate on issues of public interest — i.e., strategic litigation against public participation or “SLAPP” lawsuits. The PPPA may provide legal protection to individuals who have had proceedings commenced against them for expressing themselves on matters of public interest. An applicant may apply to the Supreme Court of British Columbia (the “BCSC”) for a dismissal order if the proceeding arises from an expression relating to a matter of public interest made by the applicant: 4(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that (a) the proceeding arises from an expression made by the applicant, and (b) the expression relates to a matter of public interest. Similar to the provisions of the PPPA, Ontario’s Court of Justice Act, RSO 1990, c C.43 (the “CJA”) includes provisions which allow for the dismissal of proceedings that limit public debate in certain circumstances. In August 2018, the Ontario Court of Appeal (the “ONCA”) concurrently released six 14

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decisions addressing the interpretation of these provisions in the CJA. In November 2019, the Supreme Court of Canada (the “SCC”) heard appeals from two of the six ONCA decisions. One appeal arose from a contractual dispute between a land developer and a group of residents opposed to a residential development. The other appeal arose from a defamation lawsuit launched by a medical practitioner against a lawyer in an insurance matter. The SCC granted intervenor status to a number of women’s rights groups (the “Intervenors”). The Intervenors focused on the application of anti-SLAPP legislation to defamation proceedings against complainants alleging sexualized violence, including sexual assault and sexual harassment. Pursuant to the CJA (and the PPPA), a dismissal application requires an assessment of the competing interests of the plaintiff (reputational rehabilitation) and the defendant (freedom of expression), as well as a determination of whether the expression at issue relates to a matter of public interest. The Intervenors took the position that anti-SLAPP legislation be read in a manner that empowers survivors of sexualized violence to report,

disclose and seek support without fear of being sued or otherwise silenced by the legal system, as the reporting and disclosure of sexualized violence are expressions relating to matters of public interest. Courts have recognized preexisting and long-standing barriers to disclosing sexualized violence. Anti-SLAPP legislation may protect complainants of sexualized violence from lawsuits commenced with the intent of silencing the complainants. In British Columbia, an application to dismiss pursuant to the PPPA has been filed in the proceedings

Galloway v A.B. The application was filed in response to an action in defamation commenced by the plaintiff. The plaintiff, a former professor at the University of British Columbia (“UBC”) sued A.B. and numerous other defendants in defamation following A.B.’s statements to UBC and others that the plaintiff had sexually harassed and sexually assaulted her. An internal investigation was undertaken by UBC and the plaintiff’s employment with UBC was eventually terminated. A.B.’s application is currently ongoing in the BCSC. David Wotherspoon is a partner at Dentons Canada LLP. Komal Jatoi is an associate at Dentons Canada LLP.

feature SAMANTHA J. DE WIT AND BIANCA M. KENDREGAN

COVID-19 and Family Law A guide to the courts during the current pandemic

should not use the COVID-19 pandemic as an opportunity to seize the sole right to parent their children. The courts have also been clear on their expectation that parents will be practical and exercise their common sense. SUPPORT AND COVID-19

n response to the COVID-19 pandemic, the courts originally limited hearings to only “urgent” matters. Even as the courts expand operations, it is expected that urgent matters will continue to take priority. Each level of court has released a notice addressing what is an urgent family law issue, including risk to the safety of a child or parent, risk to the well-being of a child (including medical decisions), risk of removal of a child, child protection matters and cases where irreparable harm will occur if the application is not heard. The case law has added to these definitions. The courts have determined that parents’ concerns around COVID-19 and their children’s well-being is understandable, and that this is “uncharted territory.” Ribeiro v. Wright, 2020 ONSC 1829, the leading case on urgency, has been relied on repeatedly by the BC courts. The court denied the urgency application, noting that a concern relating to COVID-19 in itself was not enough to make the issue an urgent one. In Thomas v. Wohleber 2020 ONSC 1965 the court noted that to be urgent, a matter must be immediate, serious, real and clearly described in evidence. PARENTING AND COVID-19 The courts must balance the health, safety and well-being of children with the presumption that parenting time with both parents is in a child’s best interests. This has arisen in multiple contexts, including parents who

are front-line workers, children that must travel significant distances between homes, an identified increased health risk to children, living with extended family and blended families, parents who must rely on thirdparty caregivers, and parents who do not follow COVID-19 protocols. In BC, Dr. Elterman, a leading child psychologist, released recommendations, which were adopted in N.J.B. v. S.F., 2020 BCPC 53. In line with these recommendations, there is a presumption that existing parenting arrangements and schedules continue, with modifications according to health guidelines where appropriate, unless outweighed by the risk to the child. There is a clear expectation that every member of a child’s household comply with COVID-19 protocols and that unnecessary exposure of children to risk will not be tolerated. Several decisions have emphasized that the focus during this time is on the children and not the rights of parents. There is no presumption that children should reside in the household with the least amount of risk during the pandemic (SAS v LMS, 2020 ABQB 287). The courts continue to maintain that court orders must be followed and unilateral action or self-help remedies be discouraged. Ivens v. Ivens, 2020 ONSC 2194 warned that parents

To date, there has been little jurisprudence in Canada addressing applications to vary support as a result of changes in income due to COVID-19. Some guidance can be found in Jumale v. Mahamed, 2020 ONSC 2091. However, this will inevitably change as the pandemic’s economic effects continue and longterm timelines become clear.

MOVING FORWARD The Court of Appeal has recently introduced videoconferencing appearances and the Supreme Court is instituting Telephone Conference Hearings for non-urgent, one-issue matters that were booked during the court’s suspension period. As family law practitioners, it is important to work with clients to find alternatives to litigation and help them exercise common sense. Samantha J. de Wit practises family law at Brown Henderson Melbye in Victoria, BC and is Chair of the Family Law Section (Victoria). Bianca M. Kendregan practises family law at Horne Coupar LLP in Victoria, BC and is an executive member of the Victoria Bar Association. JUNE 2020 / BARTALK

practicetalk DAVID J. BILINSKY

Once in a Lifetime Opportunity A chance not to be missed rEverybody talks about a new world

Geographically

in the morning. A new world in the morning so they say... r — Music, lyrics and recording by Roger Whittaker.

Jurisdictionally

he Covid pandemic has changed the justice system — if only for a little while. Having cracked open Pandora’s Box and gained a glimpse of how things can be done differently, some voices are now saying we will have a new world in the morning, a new world in the morning so they say... Well, perhaps. What has started as a way to compensate for all the limitations imposed by coping with the virus has allowed the usually highly resistant to change justice system to experiment with different ways of doing things. Rather than just “paving the cowpaths” — in other words, by implementing technology that just speeds up the traditional ways of doing things, we get a chance now to create new and improved systems, procedures and processes that serve everyone better. The place to start is by realizing the walls that constrain us and how the very structure of the justice system limits how we act. For example, here is a partial list of these limits: Synchronous:

All parties must attend the courthouse at the same time.

Serial:

Each case follows the one before it in order to be heard.

Expensive:

Each brick and mortar courthouse has to be built and staffed.

BARTALK / JUNE 2020

Tied: All parties must attend the court that is hearing the case. Tied: For the

most part, each case is heard according to the laws of the jurisdiction where it is filed.

Asynchronous:

Negotiations can take place at any time.

Parallel:

Each case can be determined independently.

Inexpensive:

Websites are cheaper than courthouses to build, staff, maintain, and are open 24/7.

Adversarial:

Win/ Lose not Win/Win.

Distance: Parties do not have to attend a physical location. Spans

Involves Transaction-

al Costs: TC = hard

Non-Adversarial :

costs + loss of opportunity costs. The longer the resolution time, the greater the transactional costs. Delays: We are seeing headlines today on the increasing delays in the justice system. We all know that justice delayed is justice denied.

You can preserve the relationship between the parties, particularly in family cases, by adopting a non-adversarial model.

Involves

Limited

Availability: Courtesy of the Internet, banks are open 24/7. Courts, however, are not.

Involves

a Judge: For the most part, a case must be heard and determined by a judge. This means that the judge represents a bottleneck in the system.

While the other courts in BC received a Ministerial Order, which suspended limitation periods for bringing actions, this did not apply to the Civil Resolution Tribunal (“CRT”). The CRT, Canada’s first fully online court remained open and fully operational during COVID, showing we can change these constraints and still serve justice. When technology is applied to the justice system the following are possible:

Costs: Transactional costs and delays can be minimized. Lower

Bottlenecks: Not every application or matter must go before a judge. Lower cost (and more plentiful) officials can make determinations.

Reduces

We have a once-in-a-lifetime opportunity to examine how we do things and implement changes that can make the system work better, faster and cheaper by changing the structure and operation of the justice system. While we won’t have a new world in the morning, as Roger Whittaker says, “I feel a new tomorrow coming on.” 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 (non-practising — on medical leave). Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

dave’s techtips There is a growing list of courts — national and international — that are looking to various meeting and communication technology to remain operational during the current pandemic. Colin Rule and the National Center of Technology and Dispute Resolution lists 56 courts in the USA, Canada, and across the world that have implemented these technologies. Remote Courts Worldwide — Richard Suskind’s dynamic list of courts from around the world and what changes they have implemented to incorporate remote hearings from a technological standpoint, compiled by the Society for Computers and Law, funded by the UK LawTech Delivery Panel, and supported by Her Majesty’s Courts & Tribunals Service. Paul Embley, Technology Services for the National Center for State Courts in Williamsburg, VA compiled a quick list of the technologies being used by the courts today. He states that while no one court is using them all, they are gaining traction. Paul advised that Texas just held its first virtual jury trial and several jurisdictions are doing virtual grand juries. Building on Paul’s list, we have: TELEPRESENCE SOFTWARE BlueJeans:

Secure video conferencing, web and audio conferencing, and virtual meetings that are browser or device-agnostic and works with any room system.

Zoom:

Video and audio meetings and conferences. GoToMeeting: Video and audio meetings and conferences. WebEx: Similar to GoToMeeting. CourtCall: Remote court appearance platform. caselines.com:

evidence review in a virtual hearing.

E-FILING Courts all over have started accepting documents filed electronically, a few for some time now. For example, there is the Federal Court of Canada’s e-filing service. AI CHATBOTS Artificial Intelligence is being harnassed to aid people’s interaction with the justice sector. For example, in Artificial Intelligence, the “AI Justice Challenge” and the Future of Law, Salman Azam outlined five ways AI is being put to use in the BC justice sector, including chatbots. LEGAL PORTALS Portals are webpages that allow for the secure transfer of confidential information. For example, Legal Aid BC has established a legal portal for lawyers who represent legal aid clients where you can view and update information securely. TEXT NOTIFICATIONS These services provide notifications of changes in dates and such by text message. For example, the North Carolina Judicial Branch’s service states: “This service will provide notifications by text or email of changes to court dates on criminal and infraction cases.” ELECTRONIC JURY QUESTIONNAIRES TO DETERMINE FIT These electronic forms replace the paper system of determining if a potential juror is qualified to serve. For example, in the United

States District Court and Northern District of California, potential jurors must respond to their jury summons by logging into the appropriate web page and responding to their summons electronically. ODR — ONLINE DISPUTE RESOLUTION There are two general types of ODR. One type focuses on using the algorithmic power of computers to help people resolve their issues. This branch uses computing power to help parties reach an optimized solution that the parties can accept or it can help parties overcome obstacles and reach an agreement. For example, SmartSettle is an ODR provider here in BC that has developed software that assists parties negotiate (1-1 or multipleto-multiple) solutions to problems. The second type of ODR focuses on using computers to facilitate human communication. Instead of having the computer processor analyze data and make recommendations, this branch uses information and communications technologies to assist the interaction between the parties, helping them to reach mutually acceptable solutions. The computer is used to create a virtual meeting space, one specifically tailored to best meet the needs of the disputants. This second type of ODR is what BC’s Civil Resolution Tribunal is modelled on and is Canada’s first online court. They say that there is nothing more powerful than an idea whose time has come. The COVID-19 virus may have caused untold damage and suffering on individuals, businesses, and governments worldwide, but it may have also been the incentive for positive change in the courts.

JUNE 2020 / BARTALK

sections Keep Current on CBABC Section Meetings Section Meetings Addressing Emerging Law in a Changing World Several Sections are swift to provide contemporary programming that reflects the need for the practice of law, as well as for the law itself, to adapt to a world that continuously evolves. During the 2019-2020 term, many Section meetings focused on a breadth of topics that advance knowledge in what is emerging to the forefront of law, including the response to COVID-19; the need to learn about and use new technology to improve lawyer communications; improved cultural competency; and responding to recent legislative changes.

uuu Law and COVID-19 COVID-19 has forced the legal profession to quickly restructure how lawyers and the courts operate. Various Sections, such as Labour Law, Insurance Law, and Family Law have held discussions on how best to conduct arbitration over Zoom, and how to mitigate legal issues that may arise due to COVID-19. Judges have also presented in Criminal Justice — Victoria and Family Law — Okanagan meetings to discuss their perspectives about how the courts are responding to the pandemic. 18

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uuu Cultural Competency Given the current political climate in Canada, Indigenous issues continue to challenge Canadian law. Aboriginal Law Vancouver and Vancouver Island have provided meetings on cultural competency when working with Indigenous clients. Criminal Justice — Vancouver also discussed resources for Indigenous offenders in the criminal justice system, recognizing that those colonial histories continue to play a role in their overrepresentation in the system. In addition, SOGIC hosted lawyer Alesdair Ittelson to discuss the implications of his work on the first case challenging “conversion therapy” for LGBTQI individuals as consumer fraud.

uuu Using New Technology in Lawyer Communications

uuu Legislative Changes Concerning Ownership Transparency

Aboriginal Law — Vancouver hosted a meeting on the successful use of geographic information systems in trial, and its potential to be used by a wider range of lawyers in assisting their clients. In addition, Construction Law provided a primer for lawyers on building information modelling, an emerging form of design technology in construction. Air Law has also presented on the legal status of drone technology that is emerging in civilian and military markets throughout the world.

Several changes to British Columbian law concerning ownership was introduced in 2019. The Wills & Trusts — Vancouver, Real Property — Vancouver, and Business Law Sections hosted a joint meeting that provided recommendations for lawyers on how to advise their clients in complying with the requirements of the much-anticipated Land Owner Transparency Act. Commercial & Real Estate — Vancouver Island and Business Law also hosted a number of meetings that discussed the recent amendments to the BC Business Corporations Act.

professionaldevelopment \\EMAIL: PD@CBABC.ORG

WEBSITE: CBAPD.ORG \\

CBABC’s On-Demand Webinar Archives and E-Learning modules consist of previously recorded programming available to all lawyers. These programs provide up to two hours of CPD, including portions of the ethics, professional responsibility, and practice management component. In this time of virtual connection and flexible schedules, these online courses allow you to advance or complete your CPD for the year. CBA members receive special pricing.

CBABC 2019/20 ON-DEMAND RESPONSIVE CBABC WEBINARS Modified Court Operations at the Court of Appeals: Appeals by videoconference, chambers applications, registrar’s appointments by teleconference, and E-filing. Aired on May 8, 2020

Conversations with the Director of Land Titles about the LTSA Practice Bulletin 01-20: Process for Remote Witnessing of Affidavits for use in Land Title Applications and other land title practice changes arising out of COVID-19. Aired on April 9, 2020

Be a Lawyer, Not a Lender: Best Practices for Getting Paid: Retainer Terms, Securing Fee’s, and Minimizing Disputes. Aired on May 4, 2020

SOLICITOR’S SERIES 2020 Solicitor Series I: Title Insurance Fundamentals for Residential Properties: Risks, exclusions

& exceptions, strata properties & First Nations developments, and claims. Aired on April 8, 2020

Solicitors Series II: Preventing Mortgage and Real Estate Fraud in BC: Fraud, Forgeries & Fake ID! Aired on April 22, 2020

Solicitors Series III: Best Practices for Second and Private Mortgages: Nuances, difficulties, context, time frames, and limitations, proper instructions and more... Aired on May 6, 2020

Solicitors Series IV: Title Insurance Fundamentals for Commercial Transactions:

Zoning endorsements, commercial lender endorsement, restrictions encroachments & minerals, construction endorsement. Aired on May 13, 2020

DIVORCE ACT SERIES 2020

Divorce Act I: What Has Changed: Statutory language, custody, access, parenting responsibilities, and court order. Aired on September 27, 2019

Divorce Act II: Forecasting the Changing Tide of Relocation: Determining between BC’s Divorce Act and Family Law Act Statutes. Aired on October 11, 2019

Divorce Act III: Where’s the Ballast - Disclosure & Jurisdiction: New provisions,

federal implementation, inter-jurisdictional procedures, and new jurisdictional rules. Aired on Dec. 6, 2019

OTHER PROGRAMMING FOR YOU Implementing Virtual Mediation for Conflict Resolution: Logistic essentials, the use of technology and the structure of a mediation, preparing your client and yourself, and best

practices and ethical issues in mediation using an online format. Aired on April 20, 2020

An Introduction to UNDRIP and the Making of UNDRIP Law in Canada: Introduction, history, Canada’s position and on-going efforts, controversy, and a review of BC’s new Declaration on the Rights of Indigenous Persons Act (also known as Bill 41). Aired on April 15, 2020

Franchising — A House Full of Traps: Disclosure documents, resales, default and terminations rights, restrictive covenants, disputes, limitation periods. Aired on January 22, 2020

Trauma Informed Practice: Guidance for Lawyers — Practice & Self-Care: Trauma awareness, lawyer-client relationships, legal and psychological perspectives, and secondary/ vicarious trauma. Aired on March 10, 2020

JUNE 2020 / BARTALK

news&events BC WLF UPDATE — by Katherine Zhou

Addressing Concerns with Artificial Intelligence The federal government has been exploring possible changes to the Personal Information Protection and Electronic Documents Act (“PIPEDA”). These possible changes aim to address privacy concerns stemming from the use of artificial intelligence (“AI”) in providing services. As AI becomes more commonplace in businesses, through the use of services such as website chatbots, it is also used more frequently in services involving decision making. For example, decisions on granting loans may now be made by financial institutions through AI. The federal government has expressed that organizations using automated decision-making can expect their AI to retain information on certain details involved in the decision, as well as the logic used. Currently, privacy law in Canada does not expressly deal with AI use, outside of the Directive on Automated Decision-Making, which applies only to the federal government. One of the most recent movements in AI regulation is from the Office of the Privacy Commissioner of Canada. They have recommended aligning PIPEDA with the rights provided for in the EU’s General Data Protection Regulation, including the right not to be subject to decisions made solely by AI, and the right to demand human intervention and contest these decisions. As the law advances, it is important that lawyers act as checks against problematic AI use. Women are highly underrepresented in the AI field, comprising only 22% of AI professionals globally. If the data used by AI is biased as a result of the skewed industry demographics, biased decisions with significant implications may become a major problem as AI decision-making becomes more commonplace. Lawyers can help by ensuring their clients use AI ethically and according to the possible upcoming changes to PIPEDA.

Hakemi & Ridgedale LLP is pleased to announce the addition of associates Katharine Hennebery and Kristyn Baim to the firm. Ms. Hennebery and Ms. Baim will bring much value and depth to our established commercial litigation practice in Vancouver.

suite 1500 - 888 dunsmuir street, vancouver hakemiridgedale.com | 604.259.7678

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let s' connect www.lifeinlaw.ca

WorkSafeBC Appeals & C P P D IS A B IL IT Y A P P EA LS

604.591.8187

www.wcblawyers.com F RE E C O N S U LTAT I O N Gosal & Company · Barristers & Solicitors ·

Sarj Gosal B.A., LL.B.

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JUNE 2020 / BARTALK

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MICHAEL BUTTERFIELD, J.D. AND JAYNE EMBREE, M.A. (PSYCH)

Listening to Children New Divorce Act entrenches child’s right to be heard

n July 1, 2020, s.16(3)(e) of the Divorce Act (Canada) comes into force. This section requires the court to consider the “child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; when making parenting decisions.” Cite: bit.ly/bt0620p12-1 This amendment brings the Divorce Act into line with Article 12 of the UN Convention on the Rights of the Child and the BC Family Law Act (“FLA”). There are various ways to obtain the views of a child. In many cases, parents can express their children’s views. However, this can lead to further conflict as the child may express different views to different parents, or the parents may interpret the child’s view in the context of their own agenda. Judges can interview the child or the child could give evidence in court. While the former is rare, the latter is virtually unheard of. The most common approach is a neutral third party report. The amended Divorce Act does not contain a mechanism for obtaining third party evidence. However, the FLA does provide options. The authority for professional assessments is found at s. 211 and ranges from assessing the needs, and views, of the children, to the parties’ abilities to meet the child’s needs. Alternatively, s. 202 gives the court significant discretion to (a) admit hearsay evidence 22

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it considers reliable of a child who is absent; (b) give any other direction that it considers appropriate concerning the receipt of a child’s evidence [s.202 Report]. The difference between these approaches was summarized in E.A.B. v. K.J.B. 2016 BCSC 1167: [26] ... The child’s views with respect to parenting issues may be expressed to the court indirectly or directly. One method of receiving those views indirectly is through a Hear the Child report. This type of report does not provide an analysis of the child’s views as they might impact parenting arrangements or responsibilities. Nor does the author of the report make any recommendations with respect to parenting of the child. [27] In contrast, a report ordered under s. 211 is intended to be a more comprehensive investigation of parenting issues and may include recommendations on the parenting arrangements that will meet and promote the best interests of the child. Cite: bit.ly/bt0620p12-2 For counsel, the challenge is determining which is the optimum approach to ensure the child’s right to be heard. s. 202 reports are more appropriate for mature children who appreciate the consequence of

their views. s. 211 reports are more appropriate for younger children and those in high conflict situations. Where there is a reasonable concern of coaching or coercion a s. 211 report, regardless of the child’s age, is more appropriate. While more expensive, the goal is to provide the trier of fact with the best evidence to determine the needs of the child. When selecting a report writer, it is important to understand their methodology. Different professionals will use different names for their reports and adhere to different practice standards. Ensure that the report writer treats each parent equitably. When possible, the child should be interviewed twice and the parents should take turns to bring the child to the interview. Each child is different and each family is different. When obtaining a report for more than one child in the family, it is important for each child to have the opportunity to speak for themselves, and not be guided or influenced by their siblings. It is paramount that the parties and the children understand that it is the voice of the child, not the choice of the child. Their voice is one of a number of considerations in determining their best interests. Allowing children to believe that their view equates to their choice puts the child in the middle of the conflict. Parenting arrangements are made by parents, or failing that by the courts. Children are not the decision-makers and should not be asked to make that decision. Michael Butterfield, J.D. is a lawyer, mediator and parenting coordinator. Jayne Embree, M.A. (Psych). Both have prepared views of the child reports and Jayne has been an expert witness in family and CFCSA matters.

advocacy CBABC ADVOCACY UPDATE BUILDING A STRONGER VOICE IN TIMES OF UNCERTAINTY They say that challenges only make us stronger — and that is certainly true now. There is no doubt that the current pandemic has created some significant challenges for all legal professionals. With courts suddenly limiting proceedings to maintain health and safety, the adage “justice delayed is justice denied” has never been more relevant. Despite these challenges, CBABC has seen a great opportunity for transformation. Members have shared their questions, concerns and, most importantly, innovative solutions. Over the last few weeks, we have seen sections and members come together with a united voice to prepare briefs and submissions for the following: Land

title document execution requirements for estate planning documents Limitation period suspensions Exceptions for builder’s lien limitation periods Pet-related essential services

\\EMAIL: JSTARK@CBABC.ORG Your comments are valued and are also being shared in our regular communications with government and court services teams that have been established over the past few weeks. This experience has brought many voices together, and we have witnessed a stronger engagement from government and court services as a result of this co-operative effort as well. When it comes to managing through the COVID-19 crisis, continue to stay in touch through feedback@cbabc.org and let us know what is important to you!

the Law Society’s Future of the Legal Profession Task Force on how we see our profession changing to meet the needs of clients in the coming decade. Sections have also provided feedback on new proposed legislation for enforcing money judgments. Finally, the Cullen Commission Inquiry into Money Laundering in BC continues with its next round of hearings in May and June; CBABC was granted participant status and continues to put forward the position of our members on important issues, including solicitor-client privilege.

As our courts move forward to expand the scope of matters that are heard, we will continue to support members to adapt to new practice directives by hosting information webinars and offering practice tips and guides for lawyers. Accessibility to court services have been part of CBABC’s Agenda for Justice since 2013, and we will continue to advocate for more funding to improve the technology and resources needed for the courts.

And we haven’t stopped there. To strengthen the engagement behind CBABC’s advocacy, CBABC piloted a new platform called ThoughtExchange, which will improve our responsiveness when dealing with time-sensitive advocacy issues. We have seen tremendous support for this platform and look forward to receiving many more of your thoughts — which will transform into action!

Witnessing

CBABC launched the COVID-19 Resource Hub online and it is updated daily. Through this platform, you can quickly learn the latest in CBABC’s advocacy efforts.

In addition to these initiatives, we continue to advocate on other important issues: the Auto Insurance Working Group has completed extensive research on the new Enhanced Care auto insurance program and Evidence Act amendments, and has formulated a comprehensive submission for the government to consider. CBABC made a submission to

We are going through some interesting times — and the bigger the challenge, the bigger the opportunity for growth. This is the time when CBABC members can truly rise to the occasion and come together to take a lead in transforming the system, ensuring better access to justice for everyone. Jo-Anne Stark, B.Comm, JD, CBABC Director of Advocacy.

JUNE 2020 / BARTALK

nothingofficial TONY WILSON, QC

Liberty, Tyranny and the Madness of Clowns

The zombie apocalypse is on hold. There aren’t enough brains.

here’s a hand-painted sign that got a fair bit of traction on the Internet in late April around the same time that flag waving anti-lockdown protesters dressed in the latest camo-attire from Walmart, and wielding AR 15’s, stormed the state legislature in Michigan (in what could only be described as a “freedom tantrum”) and demanded that the governor stop the lockdown and reopen the economy. “Libety or Tranny” one sign read. Another, with better spelling, read: “Give me Liberty or Give me Death.” Needless to say, I wondered if these armed terrorists, (all white and none of them with degrees in medicine or immunology) would soon be the COVID-19 equivalent of those nameless redshirted crewmen on the old Enterprise, beaming down to the planet Darwin to learn the laws of natural selection the hard way.

I have a morbid fascination with people who believe in freedom, but without any responsibilities. They complain about social distancing and the lockdown because their freedom to shop and go to the beach should trump my right not to get sick and die with millions of others (à la 1919). I’m equally fascinated by anti-vaxxers who call proponents of a COVID-19 vaccine “sheeple” and their relatives further down the conspiracy theory food chain who are burning down 5G cell towers in Europe. They claim the towers are helping to spread COVID-19 and that Bill Gates is to blame because he wants to vaccinate everyone and rule the world. Yes, they live among us.

As far as vintages are concerned, 2020 will probably go down in the history books like a well-aged milk — spoiled, then very spoiled. I do understand everyone’s desire to get back to work and to get back to normal, whatever normal is. But for those who dispute, ridicule or even taunt dedicated public health professionals, I invite them to visit the grave of my great uncle, Graham Parsons, who is buried in a churchyard in North Wales; the victim of the Spanish flu of 1919, which killed 50 million people, including him. Or they could simply hang out at a few hospitals in New York City for a weekend armed only with their AR15’s and their camo-attire to see how well they fare.

Around the same time that deaths from the coronavirus in the US exceeded deaths of American servicemen in the Vietnam War, the President, (who previously dismissed COVID-19 as a hoax), deflected his inaction by defunding the WHO, blamed China, tried to humiliate those who he disagreed with, and suggested that Clorox and other disinfectants could be injected into the body to somehow stop the disease. And some American politicians and media gadflies have suggested that those over 70 might have to die to save the stock market. Perhaps the virus that would otherwise have caused the “zombie apocalypse” just gave up because there weren’t enough brains to eat.

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There’s a New Yorker cartoon from 2016 where one of the passengers on a plane stands up with his hand held high and says “these smug pilots have lost touch with regular passengers like us. Who thinks I should fly the plane?” Unfortunately, we seem to be living in an age where some people don’t believe in the importance of facts and science. When people without medical training or experience in immunology form their opinions by listening to Donald Trump, “Karen on Facebook,” or Google while sitting on the toilet — we’re seeing the madness of clowns in action. Sadly, there are those who prefer to believe conspiracy theories, con artists, and former reality show hosts rather than those with actual expertise. The reasoned opinions of those who have spent their entire lives in public health dealing with SARS, MERS, Aids and influenza are dismissed because they’re elites and out of touch. Or they relied too heavily on data from China. Or they were born in China. John Cleese was right — some people are so stupid, they lack the capacity to realize how stupid they really are. To misquote Yeats, the centre cannot hold. The best lack all conviction and the worst are filled with passionate intensity. Mere anarchy is loosed upon the world. Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and is now a Life Bencher of the Law Society, so don’t phone him anymore to complain because it won’t help. The views expressed herein do not reflect the opinions of the CBABC, or their respective members.

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

JUNE 2020 / BARTALK

news&events TIPS FROM

A HACKATHON THAT WON’T STOP

A few months ago, terms like “court technology,” “justice reform,” and “legal innovation” occupied the fanciful imagination (or woes) of a handful of lawyers, but very few paid much daily attention. Cue the sudden suspension of the courts due to COVID-19, however, and the entire justice sector was struck staring at the smoldering remains of its trial schedules, paper-based registry services, and nearly every recognizable aspect of our brick-and-mortar legal system. What happened next could be the biggest legal hackathon in history. This issue’s theme is “emergent law in a changing world,” but the vibe from the trenches of civil procedure during COVID-19 was more like “pack 10 years’ worth of legal innovation into the business end of a flare gun and fire it straight into the sky.” Remotely sworn affidavits erupted into life, the Court of Appeal fled to Zoom, and the provincial government threw judges carte blanche power to rewrite Rules of Court on the fly (Ministerial Order M121). While the impacts of COVID-19 on substantive law will be felt for years to come, the changes to civil procedure have been extraordinary and it’s unlikely the justice system will ever recork the technological genies let loose during the pandemic. Luckily Courthouse Libraries BC is one of the 30 organizations on the Ministry of Attorney General’s new Justice COVID-19 Response Group, and our mission remains strong. We’re working harder than ever to provide you with the expertise, remote information resources, free CPD training webinars and seamless virtual assistance (see courthouselibrary.ca) to keep you oriented and informed in this ongoing legal hackathon.

CLEBC Update The COVID pandemic reminds us all that in uncertain times we must pull together and do what we can to help others. It is so inspiring to see the BC legal community work together to create new ways to support each other and the BC public in this crisis. As it is for many of you, CLEBC closed our physical office and our staff is working remotely from their homes. Together we have developed many new processes to continue providing BC specific legal

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resources to the legal community. Disruption has forced us to develop some new and better ways to work — a silver lining! How we deliver our legal resources to you has also changed. You may have noticed that our courses are currently online only, and many are targeted on practice issues related to the COVID pandemic. We expect that in this time of mandatory social distancing, our courses will continue to be offered online only for now. CLEBC continues to update our online practice manuals to keep you current. We have temporarily suspended shipping

print manuals so you don’t need to keep track of shipments while working remotely. As the government relaxes the rules for returning to work, we will determine when we will start shipping our print manuals again. Here’s to getting back to normal or discovering what the new normal will look like for all of us. Linda W. Russell CEO, CLEBC

announcement LAW COLUMBIA LAWFOUNDATION FOUNDATION OF OF BRITISH BRITISH COLUMBIA

clients to inform them of their rights, help them find the supports they need, and to represent their interests in the face of threats to housing or other supports.

LAW FOUNDATIONFUNDED ADVOCATES IN THE TIME OF COVID Since mid-March, when restrictions to limit the spread of COVID came in place, the poverty and family law advocates funded by the Law Foundation have been particularly busy. Often a key resource of people with limited resources, advocates in communities across BC have been helping clients dealing with a sudden loss of income, the possibility of losing their housing, and family issues complicated by the current isolation guidelines or family violence. Despite changed and challenging circumstances, advocates around the province have continued to work with

The Law Foundation has been working on several fronts to support our funded advocates. Foundation staff have been in touch with all of our advocacy programs to talk about the work they are now doing and what their office needs to do that work in changed circumstances. The Foundation has provided emergency funding to help groups adapt their systems to allow them to work remotely with clients; providing funding for things such as increased Internet services, laptops, or other supports. The Foundation has also worked with advocates to provide up-to-date information about changes in law and policy. Foundation staff maintain a regularly updated list of

information resources about relevant law and policy, as well as available supports. They have also organized training webinars open to advocates, clinic lawyers, and supervising lawyers to provide updates on income assistance, employment insurance, residential tenancy, immigration and refugee law, family law issues, and the revised procedures in both the courts and tribunal processes. Executive directors of our funded groups were invited to a webinar on best practices and legal obligations for managing a nonprofit during a pandemic. Lawyers from groups funded by the Foundation, as well as lawyers in the private bar and other resource people in the community, have presented the webinars. The advocacy services and legal clinics that the Law Foundation supports work with people around the province. Click here for a current list of the Law Foundation advocacy and legal clinic services in BC.

Returning to the OďŹ&#x192;ce From our Considerations for Legal Workplaces resource guide to a webinar series covering the occupational, psychological, legal and practical perspectives, we have you covered during this time of transition. Stay safe. Stay informed: bit.ly/Returning_OďŹ&#x192;ce

JUNE 2020 / BARTALK

barmoves Whoâ&#x20AC;&#x2122;s Moving Where and When

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/BARMOVES.

Alexander Swabuk

Allison Sharkey

joined Miller Thomsonâ&#x20AC;&#x2122;s Vancouver office as an associate in the Litigation group.

joined EKB as an associate. Allison enjoys a hybrid practice, which includes civil litigation and estate planning.

Benjamin Clarke

Heena Han

joined Singleton Urquhart Reynolds Vogel LLP as an associate in their Commercial Litigation, Construction, Insurance and Workplace Law practice groups.

recently joined the insolvency law practice of Gehlen Dabbs as an associate.

Kathleen Renaud

Jeffrey Read

joined Singleton Urquhart Reynolds Vogel LLP as an associate in their Construction and Infrastructure, Insurance, and Professional Liability practice groups.

joined the Business Law group at Watson Goepel LLP as associate counsel.

We are pleased to announce & as Partners at Koffman Kalef LLP

BARTALK / JUNE 2020

Defined Benefit Pension Plan for Law Firms Most law firms have no pension arrangements at all. But that’s about to change. Lawyers Financial is partnering with CAAT, an $11-billion, not-for-profit trust, to launch DBplus, a defined benefit pension plan for law firms of any size. DBplus eliminates the funding risk for employers and creates a guaranteed retirement pension income for lawyers and staff. Everyone benefits.

For employers

For employees

• Attract and retain top talent.

• Earnings are predictable.

• Reduced costs, risks and administration.

• Reduced stress – no complex investment decisions.

• Eliminates compliance and fiduciary risks of administering a pension.

• Consolidate existing registered funds into DBplus.

The Bottom Line DBplus will provide a guaranteed retirement income that is paid monthly for life. On average, a member who participates over their entire career in DBplus is expected to receive approximately $8 in pension benefits for each $1 they contribute. DBplus is expected to launch for the legal community in mid 2020.

Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trademark of CBIA. CAAT Pension Plan is a trademark of Colleges of Applied Arts and Technology Pension Plan. 04/2020