BarTalk August 2020 | Dispute Resolution

August 2020 | bartalkonline.org

DISPUTE RESOLUTION MAKING MEDIATION SAFER | NEW APPROACHES TO DISPUTE RESOLUTION

AUGUST 2020

VOLUME 32 / NUMBER 4

Contents

Departments

3

FROM THE PRESIDENT A Tale of Two Halves

by Ken Armstrong

5

EXECUTIVE DIRECTOR The Power of a National Organization

by Kerry L. Simmons, QC

10 INDIGENOUS MATTERS

First Nations’ Injunctions & Unfairness

by Carrie Robinson 11

Reconciliation as a Massive Failure

by Dr. Bruce McIvor

20 PRACTICE TALK

New Approaches to Dispute Resolution

by David J. Bilinsky 21 DAVE’S TECH TIPS 26 NOTHING OFFICIAL

Stake Your Claim!

by Tony Wilson, QC

Sections

16 SECTION UPDATE

Family Law, Indigenous Law, Labour Law, Wills

& Estates, and other dispute resolution meetings

Features 6

LABC’s Family Resolution Centre

by Sherry MacLennan

7

Elder Mediation: Trends and Best Practices

by Joan Braun

8

Dimensions of Dispute Resolution

by Brandon Hastings

12 Making Mediation Safer

by Michael Butterfield 13 Investigations as an Evolving Area

by Jessica Bowering and Nicole Price 14 Canada Enters the World of

Internet Dispute Arbitration

by Barry Penner, QC

Guests 18 It’s Time to Change BC’s Mental Health Act

by Kendra Milne 22 The Legacy of Accountability & BC’s UNDRIP Act

by Andrew Hindi 2 BARTALK / AUGUST 2020

Inside This Issue According to Christopher Boehm, homicide rates were higher 45,000 years ago than they are in today’s modern cities. This is despite an exponentially increasing population, and largely thanks to the Rule of Law. Many lawyers now graciously focus on guiding clients through non-homicide-dependent dispute resolution (“DR”). For many clients, however, litigation feels plenty violent (and expensive).

Enter the broader world of DR, where practitioners continually push boundaries in developing and tailoring modes of dispute resolution to meet client needs.

Inside this issue, read about LABC’s online offerings, elder mediation, DR for bullying and harassment, and Vancouver’s new centre for generic top-level domain (gTLD) arbitration. Calls for continuing work on indigenous reconciliation are made, and Hannah DeJong raises her voice in support of self-represented litigants (bartalkonline.org).

— Brandon D. Hastings Chair, BarTalk Editorial Board

News 15 BC WLF Update

BarTalk Online Extra Article

by Hannah DeJong

Nominations for the 2020 Georges A. Goyer, QC

Memorial Award for Distinguished Service 19 CBABC Advocacy Update 23 Tips from Courthouse Libraries BC

CLEBC Update 24 Pandemic Class Actions Against the Provinces

After the Pandemic: Digitalizing our Courts 25 Getting Jury Trials Back on Track

Uncharted Territory 27 Returning to the Office

Also in This Issue

17 PROFESSIONAL DEVELOPMENT 27 LAW FOUNDATION OF BRITISH COLUMBIA 28 BAR MOVES

FROM THE PRESIDENT KEN ARMSTRONG

A Tale of Two Halves

Reflections on the 2019/20 term

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t the beginning of the year I set “Community” as the theme for my term. In the first half of the year I traveled across the province to give greetings on behalf of the CBA and to meet lawyers and CBA members, to listen to their concerns, to hear how the CBA can support them, and tell them what the CBA does. I was able to travel to meet lawyers in Kamloops, Kelowna, the Kootenays, Victoria, Duncan, Vancouver, and New Westminster; I also presented virtual greetings to lawyers in Prince George.

I also participated in several special events such as welcoming ceremonies for newly appointed judges, the Bench and Bar Dinner, the ALF Holiday Banquet, the BC Courthouse Libraries’ 150th birthday party, and a special sitting of the three courts to celebrate the late Honourable Justice Patricia Proudfoot, O.B.C. The first half of the year also saw results with respect to some of our advocacy work, as the provincial government announced a significant increase in the funding for the legal aid tariff and the legislature unanimously passed a government Bill requiring BC Legislation to be UNDRIP compliant. We were granted limited standing to participate in the Cullen Commission on money laundering, which has been underway for several weeks now.

While it was an interesting and exciting first half of my term, it was mostly smooth sailing. Our February 1, 2020 Council meeting and AGM proved a demarcation point in my presidential year.

The first patch of rough water was encountered on February 6, 2020 when we learned the government was going to introduce no-fault automobile insurance in British Columbia. Less than a year after the minor injury cap took effect, the government decided that was insufficient and announced a nofault system denying innocent victims of automobile accidents full compensation for their injuries or access to the courts for any kind of adjudication of their dispute. Our advocacy priority immediately shifted to standing up for the rights of the injured person and their access to justice.

We have survived as strong and as relevant as ever.

The next patch of rough water was encountered in mid-March when, in the space of a week, the World Health Organization declared COVID-19 a pandemic and the Province of British Columbia declared a public health emergency.

All three courts suspended regular operations, including most inperson hearings, and then began the process of safely resuming inperson hearings. Most of us started working at home some or all of the time. Most of us became a lot more familiar with Zoom and/or MS Teams than we ever expected to be. The CBABC responded with

pandemic specific law reform. We worked closely with the courts to support adaptations within the courts to expand in-person appearances, and we worked with government encouraging funding to enable much needed digital transformation within the courts.

We adapted all our professional development to a virtual format. We adapted how we engaged with members. Although my last in-person appearance was in mid-March, over the course of April and May we regularly engaged with lawyers across the province, including in Vancouver, Victoria, Nanaimo, North Island, Kamloops, Kelowna, and Prince Rupert via Zoom roundtables to listen to their concerns during the pandemic, listen to how we can help, and share what we’re doing for the profession. As such, by the end of the year, I had managed to meet with lawyers in all eight counties as I had hoped. In addition, we prepared a COVID-19 Resource Hub on our website to help support our members.

While we hit two patches of rough water during the second half of my presidency, we have survived as strong and as relevant as ever. It has been an absolute thrill to serve this organization!

Thank you and take good care.

Ken Armstrong

president@cbabc.org AUGUST 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

BARTALK SENIOR EDITOR

Carolyn Lefebvre

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EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

The Power of a National Organization

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BABC is proud to be a vibrant, active Branch within the Canadian Bar Association. No matter which way you look at it, the Branch is strong and healthy, and members engage in the services, programs and benefits delivered in British Columbia. Our volunteers are second to none and because of them, members enjoy interesting Section activities, benefit from thoughtful law and policy reform submissions, and the Board of Directors is informed by opinions and experiences shared by a crosssection of members.

enrollment automatically connects you to the corresponding National Section. Whether it is the Brown Bag lunch series of Public Sector Lawyers, or the Tax Matters Toolkit developed by the Family Law Section, or the celebration of Global Pride led by SOGIC, the national scope of CBA connects you to your peers and gives you opportunities and resources. This much-appreciated panCanadian connection beyond our own workplaces is what makes CBA unique.

One benefit of membership in the Canadian Bar Association is exactly that. It is Canadian. It is Canada’s largest legal network, by lawyers, for lawyers. With a diverse network of more than 36,000 legal professionals, CBA provides the strength, size and scope to support the careers and businesses of its members.

For members who want to deepen their engagement in their professional association and enjoy thinking about national applications and implications, there are many volunteer opportunities.

Craig Yamishiro, Deputy Regional Crown Counsel from New Westminster, chairs the National Ethics sub-Committee. Margot Spence, Corporate Counsel at ICBC, becomes the chair of the CBA Canadian Corporate Counsel Association in September. Alexis Kerr of Norton Rose Fulbright chaired the Privacy Law Section. These are but a few of the British Columbia leaders sharing their talents with the country.

So what does that mean for you?

First of all, every member can attend professional development webinars delivered from anywhere in the country. From diversity and inclusion to substantive law developments to practice skills, you can enhance your work with the benefit of perspectives from other jurisdictions. The full program is here and each week in News & Jobs, we highlight key programs like the Digital Literacy Series.

Secondly, for those whose practice areas have a federal legislative element, or whose interests include a national scope, your local Section

Our national Sections and committees work on federal law reform as well as the co-ordination of submissions that have provincial applicability. The power of a 36,000-member strong organization carries weight in those discussions. Recently the Criminal Justice Section

prepared an advocacy plan to limit the disclosure of non-conviction information when responding to criminal record checks. Tony Paisana of Peck & Company, is the lead of that project which in turn supports the CBABC advocacy efforts.

Other federal measures which affect the business of law, such as income tax rules affecting private practice lawyers, or the federal funding contributions to legal aid which affects our local delivery systems, rely on the CBA National structure of volunteers and staff to represent our collective views and achieve changes from Ottawa.

I encourage all of you to gain the most you can from your CBA membership by exploring some of these pan-Canadian resources and opportunities. Check out the website to learn more from PracticeLink, the National magazine, and access the full complement of member programs and services.

As you complete your membership renewal for this upcoming year, bookmark the CBABC website as well, and make a plan to engage with your professional association more this year. The value of membership increases the more you connect. You won’t regret it.

Kerry L. Simmons, QC

ksimmons@cbabc.org AUGUST 2020 / BARTALK 5

feature SHERRY MACLENNAN

LABC’s Family Resolution Centre Online mediation for BC families

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egal Aid BC (“LABC”) is well known for helping people with representation for criminal charges; what’s not well known is that LABC helps more than one million people each year through legal assistance programs.

While tens of thousands are assisted in-person by legal information specialists, Indigenous paralegals, the Family LawLine and a network of local agents and community partners, it is through technology that LABC supports the most people when they need it. More than 2000 people each day visit the Family Law in BC site to research the law, find forms and use self-help guides on court processes. Recognizing the demand and the potential to increase access to justice for lowincome people, LABC considered how to leverage technology to go beyond information and provide actual solutions to legal problems.

The Family Resolution Centre is the next step in the journey of technology driven legal assistance, and introduces free, online mediation to the MyLawBC platform.

MyLawBC empowers people to achieve resolutions for everyday legal problems. It identifies issues, educates and provides options for solutions. Users actively engage, working through a series of questions and answers about their situation. They are guided along a path that culminates in a customized action plan that suggests next steps and options for low cost, unbundled or free legal and mediation services.

6 BARTALK / AUGUST 2020

The new Family Resolution Centre (“FRC”) makes mediation available at the user’s fingertips. The FRC is a secured site within MyLawBC focused on parenting conflicts.

Before registering to access it, users self-assess to see if online dispute resolution is the right tool for them.

A guided pathway explores whether

power balances or abuse issues exist such that online dispute resolution is not appropriate. Once in the FRC, the format is similar to the Dialogue Tool, MyLawBC’s secured site to negotiate comprehensive separation agreements. The FRC encourages parents to consider what may be best for their children, exchange proposals, and chat about options.

If they reach a consensus, the system generates a plan that can be made into a formal agreement or consent order. If the parents reach an impasse, a mediator can help. After screening for violence, the mediator provides up to five hours of online mediation to assist in reaching an agreement.

Mediations are text based, include online breakout rooms and there is the opportunity for in-person conversation if the parties desire.

Parents who are uncertain about online dispute resolution (“ODR”), mediation or the process can request a coach to give them information before they start. A guide with more information is available online.

ODR is an important adjunct to existing family services. It offers accessible, early intervention to prevent family disputes from escalating. It is available to anyone, anywhere, with Internet access.

The COVID-19 crisis has highlighted how important online services are to access to justice.

The FRC provides a new means to cost effective, timely and lasting solutions for families experiencing conflict. Parents who can resolve their issues with online support are triaged away from higher cost justice services, leaving greater capacity in the system for more complex matters. Parents who are supported to resolve issues online are benefiting not only themselves, but legal aid and the justice system as a whole. Those of modest means can help make the most of their budget for legal services and deepen their understanding of their legal situations by using resources like MyLawBC. Funding from the Notaries Foundation, the Law Foundation, and the Province of BC enable LABC to provide innovative legal assistance programs that improve British Columbians’ access to justice.

Sherry MacLennan, LABC Vice President, Public Legal Information and Applications.

Twitter: @legalaidBC Linkedin: Legal Services Society Twitter for Sherry: @smacl Linkedin: Sherry MacLennan

feature JOAN BRAUN

Elder Mediation: Trends and Best Practices

In dispute resolution with older adults

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ith the aging population, it is important for the legal community to consider how to best address the needs of this demographic. One promising model is elder mediation, a process for resolving conflicts that commonly arise as a family member ages. For example, a conflict may arise over concerns about an elderly parent who had a stroke and now has cognitive challenges. The adult siblings disagree about whether the parent is safe at home and the older adult refuses to consider moving. Through mediation the family can discuss the current situation and make a plan for the future.

This is just one example. Not all elder mediation cases are focused on health care planning issues. The term elder mediation refers more broadly to resolution of disputes that have the following components: 1) one of the disputants is an older adult, and 2) the issues in dispute are ones that have a particular impact on older adults. A mediation case does not become an elder mediation case simply because there is a participant above a certain age.

The term is usually used to refer to mediation of conflicts related to the aging process. It is common for family conflict to arise during periods of transition, and this includes transitions that occur as a response to age related changes. For example, an entire extended family may go

through a period of transition following a change to an elderly parent’s health or the death of one elderly parent.

In elder mediation, it is common to have a mix of legal and non-legal issues. For example, an older adult may develop an illness that causes progressive cognitive decline.

The family may contact a mediator to discuss substitute decisionmaking and how to explain the health prognosis to extended family members. An effective elder mediator must be well versed in legal and psycho-social issues, including laws related to capacity and substitute decision-making, social and psychological issues related to aging and intergenerational family dynamics. It also is essential to be knowledgeable about elder abuse and best

In elder mediation, it is common to have a mix of legal and non-legal issues. practices for situations where there are safety considerations.

A mediator considering branching into this area should be aware that elder mediation has distinct characteristics. First, elder mediation often has an inter-disciplinary aspect,

with presenting issues that are legal and non-legal. Second, elder mediation is a multi-party process, with family members from different generations and sometimes professionals and support people. Third, pre-mediation meetings are an important part of elder mediation. Meeting individually with participants is a common practice in some types of mediation, but not all. It is essential with elder mediation. Multiple parties often have multiple agendas, and this premediation stage enables the mediator to create a feasible agenda. It also provides an opportunity to screen for elder abuse.

Elder mediation is in the early stages of emerging as an area of practice in Canada. Currently most opportunities to take specialized elder mediation training are outside Canada, most commonly in the United States.

However, there are important differences in law and social context between the two countries and Canada-specific training is needed.

The Law Foundation of BC is currently funding a research project to identify training needs in BC. The research project is being carried out

by Joan Braun and Vivian Kerenyi.

Last November fifteen BC mediators provided input about training needs at an elder mediation workshop at the Canadian Conference on Elder Law. The final report will include feedback from this event and recommendations about training.

The report will be available free of charge and will be published in the fall.

Joan Braun is a lawyer and mediator. She is the Co-Chair of the Association for Conflict Resolution’s Elder Mediation Section.

AUGUST 2020 / BARTALK 7

feature BRANDON HASTINGS

Dimensions of Dispute Resolution Categorizing methods of dispute resolution

To introduce DR methods, options are often laid out visually: either on a single line, or in a chart format with one column per option. Considerations often include resource requirements (including time and money), emotional dimensions (including impact on relationships), confidentiality, complexity, degree of collaboration, and formality.

Where a single line is used, methods are laid out on a continuum of one consideration. Where a chart is used, a number of considerations are “scored” (e.g. high cost / low cost) for each method. I would suggest that rather than describing the sine qua non of particular methods, however, these graphics tend to observe frequent — but not necessarily implied — consequences of particular DR processes.

There are, for example, many contexts in which parties may engage in a process which is more formal, more expensive, and more emotionally demanding than that presented by court. Practically, these situations are rare, but include where 8 BARTALK / AUGUST 2020

parties feel best served by a detailed, adversarial process, and choose arbitration so they can guarantee an adjudicator who has particular subject-matter expertise. Other circumstances may include where parties need a decision so rapid the court is not able to accommodate. Either of these scenarios may arise by choice after a dispute has begun, but parties would also commonly choose these processes before a dispute occurred, through a binding arbitration clause.

I posit that a useful way of categorizing choices is along two dimensions: (1) parties’ control over process, and (2) parties’ ability to control the outcome. Formality, complexity, cost, etc., would then be consequences of these dimensions.

Control over outcome

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itigation, arbitration, mediation, and negotiation. In deciding how to move forward in resolving disputes, these “big four” methods dominate the conversation. They aren’t the only options, however, and parties who engage in non-court dispute resolution often want to tailor a process to meet their needs. Modes of dispute resolution (“DR”) are, therefore, infinitely granular.

Negotiation

High

Mediation

Arbitration

Low

Litigation

Low

High

Control over process

On control over outcome, adjudicative and directive methods rank lower than facilitative and collaborative methods. On control over process, voluntary methods rank

high, while compulsory dispute resolution ranks low. Mediation and arbitration, because a thirdparty neutral is involved in decisionmaking to some degree, will often eschew some of the parties’ ability to control the process and outcome in favour of the third-party neutral’s expertise and professional ethics.

The benefit of a process where parties have relatively low control over that process is that the parties do not have to spend time tailoring (or attempting to tailor) a process to meet their needs. On the other hand, the available “off the shelf” processes may not meet parties’ needs in terms of mitigating emotional impact, the full exercise of their legal rights, customization of the process, and nuance available in their final resolution (and the degree of collaboration required), to name just a few examples. Parties will also likely be concerned with how they participate, including whether their involvement is synchronous or asynchronous, collaborative or adversarial, and online or in person.

A good starting point in describing the types of DR available to clients, is discussing the way that choice affects their control over the process and outcome. From there, we can talk about the consequences of their choices (including cost, formality, etc.) and work on creating or deciding on a process or processes that best suit their needs.

Brandon D. Hastings is a litigator, civil mediator and family mediator, at Cassady & Company in New Westminster. Brandon is also the CBABC’s Young Lawyers Representative, Founder of The Justice Hack and co-founder of Vancouver Legal Hackers (bhastings.com).

BRITISH COLUMBIA

CAREER OPPORTUNITIES Executive Director, Legal & Legislative Services | 7+ years | Maple Ridge The City of Maple Ridge has an exciting opportunity where they are looking for the for the right fit to take on the newly created position of Executive Director, Legal & Legislative Services.

This is a rare opportunity to work as an Executive Director providing advisory services to the Corporate Management Team and overseeing a department that supports a broad range of legal and legislative services.

This position offers strong potential for career growth and progression, as this is a rapidly developing area, and the City is one of the fastest-growing municipal bodies in the greater Vancouver area.

The Executive Director, Legal & Legislative Services will report directly to the Chief Administrative Officer, and work closely with the leadership team to provide professional and strategic advice on a full range of matters related to the City, as well as being called on to provide legal guidance to their Council and CAO. You will be a central point of contact for legal services for the entire organization, which includes providing sophisticated advice regarding the City’s legal, policy, risk, and civic property management functions, as well as general corporate advice on an array of issues.

To be considered for this position you must be well-versed in provincial law governing the operation of municipal governments, with broad legal and policy experience gained while working in another public sector body. In this management position you must be a positive, solution oriented, and flexible individual. You will also have a track record of success in leading a team of diverse individuals, while demonstrating a collaborative and people-centered approach. You will also have at least 7 years of post-call experience, including a minimum of 3 years in a management position.

ZSA Legal Recruitment has been exclusively retained by the City of Maple Ridge on this search. For more information or to apply, please contact Mike Race or Amrit Rai at LegalBC@zsa.ca quoting reference #BT29963. Any applications received by City of Maple Ridge will be forwarded to ZSA.

Wills & Estate Planning Senior Associate | 5-10 years | Vancouver We’re working with a highly regarded regional law firm, looking for an experienced Estate Planning lawyer to take a leading role in their wills & estates practice. If you have around 5-10 years of experience in the space and a keen aptitude for business development, this is a great chance to join an outstanding platform, with the ability to work from either their downtown Vancouver offices or the Fraser Valley office.

For more information or to apply, please contact Mike Race or Amrit Rai at LegalBC@zsa.ca, quoting reference #BT29916.

Commercial Litigation Associate | 3-5 years | Vancouver We are working for a highly regarded Vancouver boutique commercial litigation firm, which is growing strongly and looking to add another talented litigation associate.

This is a terrific opportunity to learn from expert ex-big firm litigators, on high-end litigation matters acting for corporate clients across a range of industries, while also enjoying an easy-going, friendly small firm culture. You’ll get to develop an exciting and rewarding career without the strictures of big firms, and be able to pursue your individual interests and make your mark on the profession at an earlier stage. For a confidential discussion on this role or to apply (in MS Word format), please contact Mike Race or Amrit Rai at LegalBC@zsa.ca referencing job number #BT29975.

M I K E R AC E

AMRIT RAI

Client Partner (604) 283-9316 | mrace@zsa.ca

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AUGUST 2020 / BARTALK 9

Indigenousmatters CARRIE ROBINSON

First Nations’ Injunctions & Unfairness

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hen an injunction is sought by First Nations (“FN”) people, it is often rejected. Large corporations and provincial authorities, conversely, have considerably more success obtaining injunctive relief against FN. According to Dr. Shiri Pasternak of Ryerson University, this low success rate is symptomatic of systemic discrimination.

Dr. Pasternak reviewed more than 100 Canadian injunctions cases. As published in Land Back: A Yellowhead Institute Red Paper in 2019, the results show disproportionately low success of FN injunctions:

76%

of injunctions filed against FN by corporations were granted.

system of law working at odds with the recognition of Indigenous rights in the courts.”

Cases dealing with energy board decisions, such as Chippewas of the Thames First Nation v Enbridge Pipelines Inc., [2017] 1 SCR 1099, make it clear that when the Crown makes a decision impacting the rights of FN, the decision, and its underlying consultation through the regulatory process, is subject to judicial review. If the decision does not uphold the Crown’s obligation, FN can ask the court to overturn the decision. The Crown’s duty to protect Aboriginal Rights and Title, however, goes beyond regulatory requirements.

The common law test for granting injunctions is set out in the Supreme Court of Canada (“SCC”) case of RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199.

The SCC further clarified, in Haida v British Columbia (Ministry of Forests), [2004] 3 SCR 511, that there is an important spectrum of consultation requirements (from notice to accommodation) mandatory for the Crown to consider in ensuring FN rights are respected and protected as required by section 35 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.).

In Chippewas, a pipeline was crossing FN traditional territories. The National Energy Board (“NEB”) approved changes to the pipeline, and those changes were challenged by FN. The FN appealed the decision to the SCC, where it was ruled that the consultation requirements, although minimal, were met by Enbridge Pipelines Inc. The NEB therefore had legislative authority to make decisions around approvals of pipeline projects. This is one example of many, which demonstrates how the Crown’s reliance on regulatory bodies to carry out its responsibility to Indigenous peoples, rather than its direct involvement, continues to disappoint FNs and disrupt their faith in the Canadian judicial system.

On June 22, 2020, Pasternak stated, “[W]hile Aboriginal rights appear to be expanding through the [SCC], the dismal failure of [FN] to obtain injunctions to protect their lands from development and extraction belie a

There is more to be done to achieve equity for FN. Dr. Pasternak has stated the legal system emphasized “maintaining an economic status quo that prioritized the circulation of commodities, settlement of non-Indigenous

81%

of injunctions filed against corporations by FN were denied.

82%

of injunctions filed against the government by FN were denied.

10 BARTALK / AUGUST 2020

peoples, and protection of business interests as key to understanding the injunction numbers. Almost 100% of the injunction cases surveyed across Canada were the result of conflict over development or resource extraction.

The courts have been disproportionately swayed by arguments made by corporations that the “balance of convenience” weighs more in their favour, despite the possibility that Indigenous peoples could be removed from their homelands as a result of injunctive relief — an extreme and constitutionally shaky position… underpinning this bias is systemic racism and an undeniable refusal to understand and defer to Indigenous jurisdiction on matters that impact their communities and territories.”

Lawyer Irina Ceric, in her article, Beyond Contempt: Injunctions, Land Defense, and the Criminalization of Indigenous Resistance, noted the frequency of injunctions against FN correlates with an increase in the criminalization of Indigenous peoples. From page 354: “The combined impacts of injunctions and the subsequent use of contempt charges carve out a distinctly colonial space within Canadian law for the criminalization of Indigenous resistance.”

The results remain discouraging for FN demanding injunctions. This article calls on Canada’s legal players to improve equality by integrating Aboriginal legal principles into every legal decision, upholding the honour of the Crown, until it is clear that “Indigenous peoples matter.”

Carrie Robinson (Staff Lawyer, Pivot Legal Society).

DR. BRUCE MCIVOR

Reconciliation as a Massive Failure

Denial and violence is at the heart of Canada’s past and present Anishinaabe comedian Ryan McMahon is one of Canada’s most perceptive social commentators. Season 5 of McMahon’s Redman Laughing podcast is devoted to “reconciliation.” In his view, the brand of reconciliation peddled

by Canada’s mainstream politicians is a massive failure.

For many lawyers, McMahon’s critique likely grates on their ears. For those willing to be nudged out of their comfort zone, McMahon’s criticism rings true.

Reconciliation continues to fail because it rests on a foundation of systemic racism.

It is predicated on the denial of Indigenous peoples’ inherent rights and the willingness of the Canadian state to use violence to suppress the exercise of Indigenous rights.

Reconciliation continues to fail because it attempts the impossible — the reconciliation of a right with a lie. The right is the pre-existing interest Indigenous peoples had and continue to have in their land and the right to make decisions about their land before and after the colonizers’ arrival. This includes the right to benefit from their land and decide how

their lands should be used or not used.

discomfort the opportunity for real reconciliation is born.

The lie is that through simply showing up and planting a flag European nations could acquire an interest in Indigenous land and displace Indigenous laws.

Confronted with the reality that rote, feel-good land acknowledgements are part of the problem not the solution, Canadians will hopefully start to demand deliverables. What are the courts and mainstream politicians doing to undo hundreds of years of violence and denial? What is being done to ensure that Indigenous laws are respected, that Indigenous peoples benefit from their lands and are actively involved in deciding how their lands are used?

Around the world, this racist legal principle is recognized as the “Doctrine of Discovery.” It was developed by the United States Supreme Court in the 1830s. In 1990, as part of its building-block interpretation of section 35 of the constitution, the Supreme Court of Canada welcomed it as a fundamental principle of Canadian law.

While the Doctrine of Discovery was codified as part of Canadian law in the 1990s, its rationale was nothing new for Indigenous peoples — by then it had become all too familiar to them. For decades and generations they had been faced with the denial of their laws, of their title to the land, of the true spirit and intent of treaties, of their very humanity.

Denial is the handmaiden of violence. When grainy images hover on TVs and computer screens of Indigenous peoples assaulted by agents of the Canadian state, the legacy and modern-reality of denial upsets smug complacency. In that

As hard as it might be for Canadians to hear McMahon’s condemnation of reconciliation as it is currently practiced, his criticism is also an invitation. It is an invitation to Canadians to take the first step on what will undoubtedly be a long and difficult road.

The first step is acceptance.

Acceptance that Canada is fundamentally a racist state.

That it has been built on the denial of Indigenous peoples’ rights and humanity. That this denial is a shameful fact that runs through and binds together Canadian law.

With acceptance comes opportunity.

Dr. Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation.

Twitter: @BruceMcIvor Linkedin: ca.linkedin.com/in/brucemcivor

AUGUST 2020 / BARTALK 11

feature MICHAEL BUTTERFIELD

Making Mediation Safer Masic 4 inter-personal violence screening

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ntil recently, many mediators felt that mediation would be inappropriate where there is a history of Inter-personal Violence (“IPV”).

That perspective has evolved and there is now recognition that, with appropriate screening and accommodation, mediation is safe and effective.

The caveat to this perspective is “appropriate screening.” Since 2013, the BC Family Law Act, has required Family Dispute Resolution Professionals (“FDRPs”), to screen for IPV (s.8(1)) and determine the appropriateness of alternative dispute resolution (“ADR”) options (s.8(2)). FDRPs include lawyers, mediators, arbitrators, and others involved with family ADR. Appropriate screening for IPV is essential for the safety and fairness in the mediation process. The “Mediator’s Assessment of Safety Issues and Concerns” (“Masic”) is widely recognised as being an effective and versatile screening tool. It is freesourced and easy to use.

The Family Relations Act (“FRA”) was pivotal in expanding the definition of family violence well beyond actual physical violence to include sexual, psychological, economic abuse, and other forms of threat or coercion. However, the FRA did not specify what would be appropriate screening, and there are many different screening tools currently available.

The 2017 Report of the BC Family Mediation VAW Project advocated for 12 BARTALK / AUGUST 2020

standardized and consistent screening for IPV in family law disputes.

The 2018 study, Examining Domestic Violence Screening Practices of Mediators and Lawyers (“EDV”),

by Dr. Katrina Milaney and Nicole Williams made a comprehensive review of IPV screening practices and available tools.

In the EDV study, the Masic was identified as “a behaviorally specific screening tool that can be used to better identify whether or not mediation is appropriate for clients. Diverse forms of abuse are assessed, including “psychological abuse, coercive control, physical violence, extreme physical violence, sexual assault/abuse, stalking, and fear” (internal citations removed).

The Masic, currently in its 4th edition, was developed by Professors Amy Holtzworth-Munroe, Connie J. A Beck, and Amy G. Applegate of Indiana University’s Maurer School of Law. It is designed to take 15-20 minutes to administer per party and does not require extensive training.

This addressed some concerns that IPV screening can be difficult, cumbersome and time consuming.

The Masic does require practice to become proficient. It is recommended that users roleplay to practice the process with other practitioners. This can be done on an informal basis or in a half-day training session.

One of the benefits of using a standardised practise tool to assess interpersonal violence is that it can also protect practitioners from liability in the event that a party challenges a mediated agreement on the basis of power imbalance or IPV history.

Due diligence can be demonstrated by the competent use of a standardized screening tool. However, it is also important to remember that the obligation to screen for violence is on-going.

The goal of all mediated agreements is a fair and just resolution of the dispute. By ensuring that IPV and the associated power imbalances are addressed and mitigated, a mediator can remove a major obstacle to success.

TOP TIPS: Always

remember that your safety is paramount. Assess risk and take precautions.

Build

a network of colleagues familiar with IPV and screening. Share ideas and best practices to improve safety.

A

good screening tool is no substitute for a clear understanding of IPV dynamics. While practitioners are required to have a minimum of 14 hours of family violence training under the FRA, you should continue to expand your knowledge base.

Document

all screening related activity. Ensure that you can demonstrate consistent and ongoing screening if challenged in the future.

Michael Butterfield is a Victoria BC lawyer and certified mediator and arbitrator.

feature JESSICA BOWERING AND NICOLE PRICE

Investigations as an Evolving Area

I

n the last decade, almost all jurisdictions in Canada have enacted health and safety legislation that requires employers to implement policies to address workplace bullying and harassment. This is significant as it treats psychological harm in a similar manner to other workplace safety issues. Further, it expands the concept of harassment beyond protected grounds (e.g. sex, race, etc., under human rights law), and recognizes there can be many forms of mistreatment, such as intimidation and humiliation, that must be addressed.

Most jurisdictions require that employers have a procedure for investigating complaints but do not specify what that procedure must be. Regardless, investigations must be procedurally fair, including giving the respondent a proper opportunity to respond. Investigations can be handled internally or externally.

Only the federal jurisdiction sets out specific qualifications for the investigator, calling for a “competent person” to investigate workplace violence. A “competent person” must be “impartial and seen by the parties to be impartial,” and must have relevant “knowledge, training and experience.”

Upcoming changes under Bill C-65, (date in force TBD), expressly call for a competent person investigator for violence and harassment. The federal government is developing a roster of investigators to assign as competent persons if the parties cannot agree on an investigator. Outside of the federal jurisdiction, there is no requirement for the parties to agree

and actioned, even in absence of a finding of harassment.

There can be opportunities for mediation, facilitation, training and coaching, post-investigation, and a TPI can offer continuity and skill in this realm.

on the investigator. We have found however, that there is increased awareness and scrutiny of the selection by parties, including questions about background, neutrality, knowledge of trauma informed practices and unconscious bias, etc.

In many cases, employers will opt for a third-party investigator (“TPI”) to conduct the investigation, due to complexity, limited internal resources, and/or desire for an arm’s-length lens. We anticipate the scrutiny of impartiality will continue, thereby encouraging the use of TPIs. It is worth considering the value a TPI might offer a workplace, beyond meeting legal obligations.

Employers routinely ask investigators to make findings or fact and to determine if a respondent has breached policy, but may not ask for recommendations.

This is a missed opportunity.

A workplace investigation is not an easy process for participants, yet we find they express appreciation for the opportunity to be heard, and are eager to share their broader perspectives on the workplace, including views on what may contribute to strain among colleagues, or between employees and managers.

Conduct may not rise to the level of harassment, but that does not mean the workplace is not problematic or that relationships are repaired.

Recommendations allow for insight gained by the TPI’s “fresh eyes” into workplace dynamics to be shared

Investigators can also consider other means of dispute resolution mid-stream. For example, in a situation that included multiple parties and allegations of disrespectful conduct, the investigator’s preliminary assessment found evidence of personality conflicts, but no prima facie case of harassment. The investigator recommended a switch to a workplace assessment (“WA”), in which participants identified issues and

potential improvements, and were asked to reflect on how they were contributing to the dynamics. This was followed by group sessions on communication and development of a code of conduct.

Proactive WA’s can help to head off investigations, where there are rumours but no specific complaints, or where there are tensions.

Objective investigations are critical to address harassment. They also provide an opportunity to learn more about the workplace, alongside a growing number of tools to address conflict.

Jessica Bowering and Nicole Price are lawyers at Southern Butler Price LLP, a firm which focuses on workplace investigations and dispute resolution.

AUGUST 2020 / BARTALK 13

feature BARRY PENNER, QC

Canada Enters the World of Internet Dispute Arbitration Vancouver-based arbitration centre takes on international cases

D

isputes over who has a legitimate right to make use of website names, which are a form of intellectual property, are becoming more frequent.

With more than 350 million individual domain names now registered worldwide, Internet conflicts are increasing along with the importance of e-commerce.

COVID-19 is only the latest factor accelerating the trend toward e-commerce. The net result is an increasing value of recognizable and desirable website names.

It’s been reported that the rights to Insurance.com sold for USD $36 million, Voice.com sold last year for USD $30 million, while Ice.com sold for USD $3.5 million. Closer to home, in late October it was reported by the Vancouver Sun that the Insurance Corporation of British Columbia placed a value of $10 million on their icbc.com web address.

As we all know, where there is money there is the potential for a dispute.

In fact, more than 60,000 disputes have been brought under “uniform domain name dispute resolution policy” (“UDRP”) established by the Internet Corporation for Assigned Names and Numbers (“ICANN”), the Internet’s governing body, since 1999. The UDRP applies to all generic top-level domain (gTLD) names, including .com, .org, and .net.

14 BARTALK / AUGUST 2020

To help address this demand, a longtime fixture of Canada’s legal community, the BC International Commercial Arbitration Centre (“BCICAC”), has expanded its role in resolving Internet domain name disputes by launching a fully-owned subsidiary, the Canadian International Internet Dispute Resolution Centre (“CIIDRC”).

The application process, through ICANN, invited comments from Internet users around the world.

Ultimately, BCICAC’s CIIDRC was approved to be ICANN’s second operating provider of domain name dispute resolution services in the Western Hemisphere, and the only one in Canada.

interactive online platform (ciidrc.org) built by BCICAC, to support this new initiative.

CIIDRC.org is available 24/7 to anyone wishing to make a domain name complaint, seek information, or find updates on their case. The site also provides detailed information about CIIDRC’s roster of arbitrators.

If someone believes they are the victim of domain name abuse (such as cybersquatting), they may be asked to pay an exorbitant fee to buy the name, but alternatively they can challenge the registration in accordance with the UDRP. CIIDRC.org is gaining an international following, and the number of cases is increasing. Unlike most commercial arbitration cases, decisions for UDRP and CIRA disputes must be made public and are available for viewing on our website. If you are interested in the legal tests, which are applied in determining the rightful holder of website names, take a look at some of the decisions.

BCICAC was established in 1986 as a non-profit foundation administering arbitrations covering a wide array of subjects, including construction and shareholder disputes, underinsured motorist claims involving ICBC, and (since 2002) .ca domain name disputes for the Canadian Internet Registration Authority (“CIRA”).

BCICAC and CIIDRC’s mission is to deliver an easy-to-use, neutral, transparent and expedited online platform to resolve disputes. This new global centre for resolution of domain name disputes, based in Vancouver, is a beacon of Vancouver’s already stellar reputation in legal technology and access to justice.

CIIDRC’s recent approval will expand BCICAC’s administration of domain name disputes from disputes over .ca domain names to disputes involving more than 1,500 top-level domains.

Barry Penner, QC, Managing Director, BC International Commercial Arbitration Centre & Canadian International Internet Dispute Resolution Centre (former BC Attorney General).

CIIDRC’s dispute resolution processes are supported by an innovative and

Footnote: As of September 1, 2020, BCICAC will be known as the Vancouver International Arbitration Centre.

news&events CONNECTING WOMEN LAWYERS BC WLF UPDATE — by Rose Keith, QC

Improving Mediation Skills Formal mediations are one of the primary tools in the Alternative Dispute Resolution toolbox. For lawyers, our intuition will not always lead us down a path that will be most effective at a mediation. Lawyers are skilled and focused on persuading others to see things the way we want. Those same skills can be counterproductive in a mediation. Mediation requires a mind shift, a shift from focusing on getting someone else to do what you want, to focusing on understanding the other party’s viewpoint, telegraphing that understanding and incorporating that viewpoint into your own presentation.

One reason to focus on understanding the other party is to identify potential biases that may be at play in their position.

Some of the more common biases that you may encounter include confirmation bias, availability bias, halo effect, selfserving bias, attentional bias, actor-observer bias, anchoring bias, loss aversion bias, optimism bias and misinformation effect. Understanding the various cognitive biases that impact understanding of events, recognizing when those biases are driving views and dealing with those biases in a way that telegraphs understanding will improve your negotiation skill and translate to improved success in mediations.

AWARD NOMINATIONS

Georges A. Goyer, QC Memorial Award for Distinguished Service

(L-R): Ken Armstrong (CBABC President); Robert Brun, QC (2019 Goyer Recipient) and Kerry L. Simmons, QC (CBABC Executive Director).

Nominations are now open to recognize exceptional contributions to BC’s legal profession, to jurisprudence in British Columbia or Canada, to the law or development of law in BC or to providing a significant law-related benefit to BC residents.

uuu Check out CBABC.org/awards to learn more and submit a nomination form.

Online Extra Article Available at bartalkonline.org

uuu

Read

Listening to the Voices of Self-Represented Litigants

by Hannah DeJong

AUGUST 2020 / BARTALK 15

sections Keep Current on CBABC Section Meetings

uuu Indigenous Law, Labour Law, and Wills & Estates

Section Meetings Addressing Dispute Resolution

ADR—Vancouver hosted Karen Snowshoe, who shared her unique insights into how lawyers, adjudicators, and mediators, can help set the stage for effective, trauma-informed, and culturally relevant dispute resolution in the Indigenous context, with a focus on relationship-building and ethics.

Several Sections hosted meetings this year that explored the many facets of dispute resolution. While often discussed in the context of Family Law, alternative dispute resolution is used in all areas of law, including Indigenous law, estate disputes, commercial disputes, and labour law.

uuu Family Law The Alternative Dispute Resolution (“ADR”)—Nanaimo Section hosted Joan Coatie to discuss parenting coordination as an alternative form of dispute resolution. Family Law—Fraser Valley further delved into the topic of parenting coordination by discussing the practical aspects of Section 211 reports, also known as Custody and Access reports, and views of the child reports. Further, Family Law—Westminster hosted Dr. Michael Elterman, who shared his vast experience in preparing Section 211 reports, and provided valuable information needed to best approach difficult issues arising from families struggling with parenting disputes.

16 BARTALK / AUGUST 2020

Criminal Justice—Victoria held a discussion on the Victoria Early Resolution and Case Management Model, designed to quickly resolve family disputes in Provincial Court, with The Honourable Judge Carmen Rogers, Michael Lawless, and Attorney General David Eby. The meeting discussed how the model has worked since its implementation, and tips and tricks from the Bench and registry in using the process successfully.

While COVID-19 restrictions are in place, Family Law—Victoria hosted a variety of family law practitioners to discuss engaging in ADR processes while social distancing, the logistics of holding meetings virtually, and useful tips and strategies for serving clients in the midst of the pandemic.

Arbitrators and mediators Lisa Southern and Mark Brown, alongside Jacquie de Aguayo, the Chair of Labour Relations Board and Employment Standards Tribunal, were hosted by the Labour Law Section to discuss best practices for effective advocacy in labour arbitration and case management in the COVID-19 era.

Wills & Trusts—Vancouver hosted The Honourable Sandra K. Balance and The Honourable D. Jane Dardi to discuss mediating estate and trust disputes.

uuu Other Dispute Resolution Meetings ADR—Nanaimo led two discussions centering on the psychology of effective mediation and arbitration. In particular, the Section hosted Robert McQueen to present on the subject of understanding the interests of self in conjunction with others to better communicate with clients.

The Section also hosted Brad Crewson, to discuss the meaning of empathy and how it can be applied to ADR.

professionaldevelopment

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

Professional Development During COVID-19 With recommended safety measures in place across British Columbia to maintain social distancing to prevent the pervasive spread and transmission of COVID-19, the legal profession has faced unprecedented times, which has challenged the traditional means by which law is practised.

In support of your work, CBABC has a full suite of webinars to meet our commitment to deliver current information and resources, ensuring you are up-to-date and informed. All the recent sessions are available through our on-demand portal.

This includes the BC Court of Appeal’s modified court operations using Zoom, how Microsoft Teams is being employed by the Provincial Court; adaptations and progress made in Supreme Court for the continuation of hearings and trials, and what criminal law practitioners need to know about BC’s Community Corrections and Adult Custody in BC. Those adapting their practices to virtual mediation and arbitration will want to refer to the May session and look to the best practices toolkits.

CBABC also launched a threepart “Returning to the Office” series, evaluating available medical information about COVID-19 through the lens of occupational medicine and returning safely to the worksite; the effects of the Coronavirus pandemic on your team’s mental health and wellness; and adapting employment contracts and policies for returning to the office.

Professional Development on the Horizon — Fall 2020 This fall’s professional development reflects what members have said they need and want to adapt to the changing world, and be better prepared to help clients.

Have you considered how your workplace and employees incorporate principles of reconciliation? This fall, join your colleagues to explore the CBABC Reconciliation Response Plan to build awareness and adapt your workplace’s approach. In the continuing Supportive Relationships series, you can explore the present day experiences of Indigenous and Pan-Asian Canadians, building on part 1 of the series where participants explored the historical relationships.

CBA also offers an on-demand series — The Path — a five-part series that sets out to demystify some legal issues surrounding the Canadian Constitution,

the Indian Act, historical and modern treaties, and rulings by the Supreme Court of Canada.

The final module provides some context to understand the cultural traditions and values of Indigenous peoples.

In response to your requests, CBABC will bring you sessions on allyship to build your capacity to be an ally to equityseeking groups within the legal profession. Additional sessions will explore how to make diversity and inclusion a reality in your workplace to move beyond the paper policy.

As we celebrate Pride, we are excited to expand lawyers’ awareness and understanding of the LGBTQIA+ community.

From the basics to answer “what do those letters mean” to historical and current issues affecting access to justice, to guidelines for respectfully working with clients and counsel, this series is rich with useful information.

And if we’ve learned anything during the pandemic is that there is much more to learn about using more technology in our practices. The CBA Digital Literacy Series will help you stay on top of the legal trends.

In September, look for our session on e-trials to help you plan, introduce evidence, and manage a fully-digital trial.

Your ideas are always welcome.

Email pd@cbabc.org.

AUGUST 2020 / BARTALK 17

guest

KENDRA MILNE AND LAURA JOHNSTON

It’s Time to Change BC’s Mental Health Act

Supporting mental health requires law reform

T

he creation of the Law Society’s Mental Health Task Force and healthfocused editions of BarTalk have promoted conversation in BC about the need to support mental health in the legal profession. Much has related to reducing stigma, for example by normalizing the importance of mental health, so that legal professionals in need of supports feel more comfortable accessing them.

Reducing social stigma is indeed a crucial issue, but stigma goes beyond how we talk about mental health and how we support our colleagues on an interpersonal level. Law and policy can also play a significant part in upholding or combating stigma. BC’s Mental Health Act (the “Act”), the legislation that governs the rights and treatment of a person when they are at their most vulnerable to mental health challenges, plays an unfortunate role in stigmatizing mental health.

The Act and related legislation result in different standards and rights when we’re receiving treatment for a mental health issue than those we are entitled to when receiving care for a physical health issue. BC’s Health Care (Consent) and Care Facility (Admission) Act creates a robust scheme to protect health care consent rights, enshrining that we are all presumed to be capable of making our own health care decisions until we are assessed as incapable and 18 BARTALK / AUGUST 2020

providing a scheme for substitute decision-making should we find ourselves without capacity to consent to health care.

However, if you are receiving involuntary treatment under the Mental Health Act, none of these provisions apply to your care — there is an express statutory override on health care consent rights. Instead, you can be detained in a designated psychiatric facility and any psychiatric treatment authorized by the facility is “deemed” to be given with your consent. Your family and those closest to you are not guaranteed any role in decision-making.

Any representation agreement or advance directive in place to establish your health care wishes do not bind the facility or its staff.

In addition, if you are detained under the Act, you are expressly subject to the “direction and discipline” of the facility staff. They make choices about whether you are held on a locked ward, solitarily confined in a seclusion room, subject to mechanical or chemical restraints, or have access to a phone. BC is one of the only provinces in Canada without a publicly funded, independent legal advice and advocacy service available upon detention despite the Charter guarantee of access to legal advice and recent recommendations

by the Ombudsperson that such a service be implemented.

BC’s legislative scheme related to mental health treatment reflects out-dated stereotypes and negative assumptions about people experiencing mental health-related care — it sends a clear message that people receiving involuntary treatment under the Act must be treated differently than, and are not entitled to the same rights as, those receiving any other kind of health care.

This kind of stereotyping in legislative schemes reflects a different kind of stigma, structural stigma, which occurs when our laws, policies, and institutions reinforce stereotypes and negative assumptions about a group of people by building those stereotypes and assumptions into the very structure of our public services and systems. That approach then reinforces social and interpersonal bias and negative stereotypes, the kind that might influence the way we treat our colleagues in need of support, in a troubling feedback loop.

Recent work to normalize the importance of mental health, and to reduce shame and stigma related to accessing mental health supports, is crucial. However, if we truly want to improve mental health in the legal profession, we must hold our provincial legislation to the same standard. In order to achieve that, BC’s Mental Health Act needs significant reform.

Kendra Milne is the Executive Director and Laura Johnston (not pictured) is the Legal Director of Health Justice, a new legal advocacy organization in BC.

advocacy CBABC ADVOCACY UPDATE SHOW ME THE MONEY! Back in the 1996 movie Jerry Macguire, Tom Cruise famously shouted into the phone, “Show me the money!” As we make our way through the current pandemic, many of us are more concerned than ever about where the money is coming from, and how it is to be spent.

In the month of June, the BC government approached stakeholders to get feedback on how they will use our taxpayer money in 2021. Incoming President Jennifer Brun provided a verbal presentation to the Select Standing Committee on Finance and Government Services; CBABC provided written submissions at the end of June. Through discussions with the Board, the volunteer committees and feedback from ThoughtExchanges, we were able to identify those issues of key importance to members and formulate recommendations on how money should be allocated based on advocacy priorities for the coming year.

CBABC asked the government to “show us the money” by allocating funds to the following: 1. TECHNOLOGY TO IMPROVE COURT ACCESS The government introduced a Court Digital Transformation

\\EMAIL: ADVOCACY@CBABC.ORG Strategy in 2019, and with the closure of many courts and law offices due to COVID-19, the need to improve technology in the court system came to the forefront. CBABC asked the government to provide immediate funding to implement the strategy quickly to prevent a further increase in delays for those seeking justice.

Upgrades to the existing system will enable participants to file documents electronically, appear in court by video and/or telephone and allow judges equipped with necessary audio and video equipment to view evidence and testimony.

2. LEGAL AID FUNDING CBABC asked for funding toward legal aid services to increase the scope of family law matters, including child custody and support, spousal support and property division.

These services were cut a number of years ago, and impact those most vulnerable in our society. In addition, CBABC asked for funding to provide legal representation to those involuntarily held under the Mental Health Act, based on recommendations made by the Ombudsperson in 2019.

CBABC asked the government to apply the revenue generated from the PST tax collected for legal services to cover these costs.

3. INDIGENOUS JUSTICE AND DRIPA Lastly, CBABC asked the government to provide continued funding of transformational change and programs to address issues of over-representation of Indigenous peoples in the justice system, and to provide sufficient resources to implement the Declaration of Rights on Indigenous Peoples Act (“DRIPA”). Our members have consistently expressed ongoing concern about the treatment of Indigenous peoples in our province and the pressing need for change.

Also in June, money was again the topic of conversation as the hearings for the Cullen Commission Inquiry into Money Laundering continued; CBABC is a participant in this inquiry, and will be continuing to represent the position of members as the hearings continue in the fall.

Sections remained very active the past few weeks developing written comments for the review of privacy legislation and the proposed new Uniform Civil Enforcement Money Judgments legislation — a big thank you to our volunteers and their many hours of extra work throughout the summer as they provide the views of members to the government during the current sitting of the legislature!

Be kind, stay safe…

AUGUST 2020 / BARTALK 19

practicetalk DAVID J. BILINSKY

New Approaches to Dispute Resolution Finding blockchain solutions r Life is very short, and there’s no time For fussing and fighting, my friend…

We can work it out We can work it out... r — Music, lyrics by P. McCartney and J. Lennon; recorded by The Beatles.

W

hen lawyers think about alternative methods to settle disputes, using the power of the blockchain probably does not spring immediately to mind. However, there are a host of entities, such as: Mattereum Protocol (mattereum.com) whose first customer was William Shatner’s company Third Millenia; Kleros (kleros.io/en) that uses the blockchain’s resolution layer to build decentralized courts; and others who are pushing the virtual resolution envelope in new directions.

Before we dive deeper, a little background is in order. What is the blockchain? According to IBM, the blockchain is “a shared, immutable ledger for recording transactions, tracking assets and building trust.”

There are three guiding principles of the blockchain:

Participants

have access to the distributed ledger and its record of transactions that comprise the blockchain.

Records

are immutable; no one can change or tamper with a transaction after it’s been recorded to the distributed ledger.

20 BARTALK / AUGUST 2020

Transactions

take place on the blockchain via smart contracts. A smart contract is a self-executing contract containing the terms of the agreement between buyer and seller. The smart contract is itself an immutable record written into lines of code that are incorporated into the blockchain.

What are the ways the blockchain is used?

Sean Williams in “20 Real World Uses for Blockchain Technology” lists such activities as: Payment Processing and Money Transfers; Retail Loyalty Programs; Real Estate, Land and Auto Transfers; Medical Records and Weapons Tracking, among others.

So how does the blockchain work in terms of dispute resolution? Kleros’ system is a peer-to-peer system that utilizes crowdsourcing with the blockchain. Kleros has established online courts, is recruiting online jurors and has started handling disputes. Kleros can be designated the resolution system in a smart contract. In the event of a dispute, the smart contract contains code that is triggered by one of the parties.

The party initiating the dispute then must deposit a designated amount of cryptocurrency as earnest money to initiate the process (as must the other party to respond). Jurors are then selected from a pool of individuals who have indicated that they have the required expertise to

decide the dispute by depositing cryptocurrency to evidence their assertion that they are duly qualified in a designated area. For example, say there are three jurors hearing a dispute. If two of the jurors reach a consensus on the evidence, then the dissenting juror loses his or her deposit to the other two jurors. The theory is that the two jurors who formed the majority decided “correctly and honestly.” None of the jurors knows or has any method of communicating with each other. An appeal or “challenge” of the decision is possible before twice the number of original jurors plus one. Of course, the amount of money being deposited by all parties as well as the jurors steadily increases as the level of challenge increases.

The fact that disputes arise is as old as contract law. Using the blockchain and the power of the Internet to quickly settle disputes that arise in the context of commerce over the Internet is a creative and innovative way of settling those disputes, for as we all know, life is very short and there is no time for fussing and fighting my friend.

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 Dispute Resolution Systems for the Blockchain With worldwide spending on the blockchain totalling $2.7 billion USD in 2019 and expected to be $14.4 billion by 2023, it is inevitable that this level of commercial activity will give rise to disputes. The structure and nature of the blockchain is such that developers and others are seeking dispute resolution methods that are both built into and on the blockchain as well as more traditional dispute resolution methods. Who is building dispute resolution systems for the blockchain in addition to Kleros?

Here is a sampling: uuu ARAGON COURT (aragon.org/court) Existing within the Aragon Network, this dispute resolution method has been created to settle disputes that arise from Aragon Smart Contracts. Potential jurors must deposit cryptocurrency tokens to be placed in the juror pool. Jurors must agree to abide by a Code of Conduct.

Once chosen, a certain amount of tokens of the juror are locked until the dispute is settled. If the juror decides with the majority, they then earn further tokens for deciding in accordance with the “subjective truth.” Jurors who did not decide with the majority have their locked tokens slashed.

On March 26, Aragon Court moved into a Precedence Campaign to test out the system.

Once the precedence campaign is completed, it is expected that the Aragon Court will move into general public usage.

uuu RHUBARB (rhucoin.com/home.aspx) Rhubarb has grown out of the operation of PeopleClaim, a large online dispute resolution provider that states they have resolved more than 60,000 claims. Per BusinessWire: “PeopleClaim allows anyone with a complaint or grievance — consumers, businesses, patients, employees — to file an online complaint about any kind of product or service issue or dispute, and then engage with the offender constructively in order to resolve the problem.” From this start in 2010, PeopleClaim now has a large following and has extended its knowledge in resolving disputes online to the blockchain. Because of this background, Rhubarb’s blockchain dispute resolution system reaches out to online dispute resolution processes outside of the blockchain. Similar to other systems, Rhubarb crowdsources jurors and provides incentives for jurors to vote “fairly.”

uuu JURIS (medium.com/jurisproject) Juris’ dispute resolution system can be incorporated into an agreement by adding Juris code to a smart contract. The contract can be frozen if a dispute arises. The parties are encouraged through a range of tools to settle their dispute; if not, the matter is submitted to a SNAP online jury for a quick but non-binding opinion on the case.

The parties can resolve the case at this time or submit it for a ruling by a PANEL who can make a binding and worldwide enforceable decision under The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention. uuu MATTERNUM (mattereum.com) Matternum seeks to weave together the blockchain with real world assets. By registering assets on the blockchain, art and collectables (among other assets) can be traded, transferred, tracked, traced, and thereby authenticated, potentially reducing fraud. Matternum uses an off-chain method of arbitration rather than crowdsourced juries to resolve disputes. uuu JAMS (jamsadr.com/smartcontracts) JUR (jur.io) EOS ALLIANCE (eosalliance.io/dispute-resolutionarbitration) ACCORD PROJECT (accordproject.org) These are other organizations working on the issues involved in bringing dispute resolution to the blockchain.

© 2020 David J. Bilinsky

AUGUST 2020 / BARTALK 21

guest ANDREW HINDI

The Legacy of Accountability & BC’s UNDRIP Act Is the new legislation more of the same?

I

n October of last year, the Minister of Indigenous Relations and Reconciliation, Scott Fraser, introduced the Declaration on the Rights of Indigenous Peoples Act (the “Act”) to the BC legislature as Bill 41. In the Minister’s stated view, the chief purpose of the legislation is to harmonize BC laws with the principles enunciated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which serve “as the framework for reconciliation.” Although receiving royal assent in November, the Act can hardly be considered a movement toward a true reconciliation.

A close and careful reading of the legislation clearly demonstrates its inadequacies as an instrument of change. Most glaringly, section 8 of the Act precludes the application of the BC Offence Act, such that a failure to comply with government obligations does not trigger penalty provisions as a provincial offence.

Furthermore, section 4 of the Act contemplates the creation of an “action plan” to facilitate a transition to and recognition of its legislative objectives. Notwithstanding that the creation of an action plan is likely to require a significant amount of time (incurred in the consultation process with interested Indigenous groups), the Act provides little guidance on the implementation of Indigenous rights. More likely than not, the action plan will not be focussed on a timely recognition of these rights.

22 BARTALK / AUGUST 2020

Under section 1(4), the Act also preserves the “rights recognized and affirmed by section 35 of the Constitution Act, 1982.” This may serve somewhat problematic as a measure for Indigenous rights, as unlike the Act’s predecessor, federal Bill C-262, which had preserved only “existing Aboriginal or treaty rights of the Aboriginal peoples of Canada that are recognized and affirmed in section 35,” the more general language within the provincial legislation may be construed as importing certain Crown rights, such as the right to infringe Aboriginal rights.

Lastly, it should be noted that many of the provisions of the Act contain general and ambiguous language, as is usual for declarations in international law. The direct adoption of this language by a Canadian jurisdiction is unlikely to cause effective change in the existing scheme of Aboriginal rights under section 35. Section 35 has been phrased as broadly as possible, providing no restrictions as to the content of Aboriginal rights, yet has been severely restricted in scope within the Canadian jurisprudence. Indeed, Canadian courts are unlikely to apply a much broader interpretive approach to the general language

under the Act. It is only a matter of time before courts correspond many of the existing internal limitations on section 35 rights to the rights under the Act (in addition to the seemingly existing limitation provision within Article 46(1)).

Earlier this year, there was a debate at the Peter A. Allard School of Law featuring notable speakers Dr. Gordon Christie, an Indigenous proponent and law professor at UBC and Thomas Isaac, Chair of the Aboriginal Law Group at Cassels Brock & Blackwell. Although the need for a renewed perspective on reconciliation was largely a point of contention among the speakers, they agreed that the Act is largely insufficient as an instrument of change.

In Isaac’s view, nearly all issues respecting Indigenous rights are a product of the fact that industries contemplate their objectives over decades, Indigenous peoples contemplate their objectives over generations, while governments merely think over 4-year cycles.

It remains to be seen in what respect the government will develop an action plan to implement Indigenous rights and the manner in which courts will engage with the rights under the Act. Nevertheless, in consideration of the long-standing legacy between BC, Canada and their Indigenous peoples, one must be careful to expect significant change brought upon as quickly and swiftly as the passing of a single piece of legislation.

Andrew is a third-year student at the Peter A. Allard School of Law with interests in Aboriginal and commercial litigation. LinkedIn

news TIPS FROM

INCREASE YOUR DISPUTE RESOLUTION IQ

A basic tenet of the adversary system, and therefore Trial Practice 101, is that true justice requires ardently protected positions, the clash of proofs, and a passive, neutral jurist who presides over it all as the parties (or their champions) exert themselves in all-but-bloodless combat.

Coming from this school of thought, many lawyers encounter Alternative Dispute Resolution (“ADR”) only after they come to question the wisdom of the adversary system... then seek to learn the softer arts of negotiation and compromise. Courthouse Libraries BC (“CLBC”) has many primers (plus more advanced teachings) to guide this growth. Starting with books you can access online anywhere through CLBC’s Remote Access Subscriptions Database, consider Mediation for Civil Litigators, from Irwin and available through the deLibris platform link once you’ve logged in to the CLBC website. The handbook provides grounding and practical tips for successful negotiation and the mediation process — and it’s written with reformed trial warriors in mind.

From the CLBC’s print collection, consider checking out the 2020 edition of the British book Foskett on Compromise for some high grid analysis. The treatise includes content on the compromise of arbitrations, appeals, and compromises achieved through all forms of ADR. Foskett discusses the proper role of legal advisers (whether barrister, solicitor or other appropriate representative) in the process of compromise, including consideration of skills, responsibilities, obligations, and liabilities. For BC family practitioners and civil litigators alike, there’s a great chapter on interest-based negotiation (as opposed to position-based advocacy) in The Family Dispute Resolution Handbook, 6th Ed., which is available digitally in all of CLBC’s branches through Lexis Advance.

CLEBC Update At the onset of the COVID-19 pandemic, we made the difficult decision to stop shipping our print updates while continuing to publish online copies of our scheduled books. We are happy to report that we will now return to printing updates starting on July 1, 2020 and continue to ship new orders. If you are a current subscriber to any of our upcoming releases, we will notify you via email

with further information. We appreciate your patience during these challenging times and look forward to getting your updates shipped out as soon as possible.

In other publications news, we are excited to announce the third edition of Injunctions: BC Law and Practice ­— currently available in online format and scheduled for print release on August 24, 2020. This edition is essential for every lawyer presenting or defending an application for injunction in

the BC Superior Courts or the Federal Court. Also upcoming is the update to William Buholzer’s classic guide to BC local government laws, Local Government: A British Columbia Legal Handbook, available in online-format July 17, 2020 and in print on August 12, 2020.

To see all our publications, please visit: cle.bc.ca/publications.

AUGUST 2020 / BARTALK 23

news CBA NATIONAL MAGAZINE

After the Pandemic: Digitalizing our Courts

CBA NATIONAL MAGAZINE

Pandemic Class Actions Against the Provinces Are provincial governments shielded from liability for the deaths of residents in nursing homes and long-term care facilities?

Class actions over COVID-19 handling of long-term care and nursing homes could follow different scripts in Canada’s two largest provinces, the most affected by the pandemic.

Already, Ontario has passed legislation to shield itself from lawsuits for negligence arising from legislative and policy actions taken in good faith.

It is also on the verge of enacting a bill that would change the nature of class-actions in their province.

Margaret Waddell, a partner at Waddell Philips PC in Toronto, says that Ontario’s Crown Liability and Proceedings Act 2019 will create a significant hurdle to bringing lawsuits against the government for its role in the oversight of long-term care facilities. “And on top of that, the government is also considering putting into place specific legislation to exempt long-term care homes, and I would assume, also itself from lawsuits for how they’ve dealt with the COVID issues,” she says.

Meanwhile, sweeping changes to the Class Proceedings Act proposed in Bill 161, which is expected to pass third reading and receive royal assent at any time, would narrow the criteria for the certification of class actions.

“They’re going to be changing the test for certification to add in two concepts that they are importing out of the US called ‘superiority and predominance,’” says Waddell. “You need to prove that a class-action is superior to any other mode of resolving the dispute, and also that the common issues predominate over individual issues, which is a much higher burden than under the current test.”

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Read the full article

Yves Faguy speaks with Karen Eltis, the author of “Courts, Litigants and the Digital Age,” about the pressing need to modernize our courts, the risks involved, and the precautions we should be taking.

COVID-19 has forced innovation on a scale and at a pace that our court system would never have contemplated just a few months ago. Some courts have gone as far as holding virtual trials. Across several jurisdictions, litigant parties are at the very least expected to use available technology, where they can, to move matters along. And this month, the Supreme Court of Canada launched virtual hearings for the first time using Zoom.

For a justice system long characterized by its slowgrinding wheels, this is no small thing. And for proponents of digitalization, it’s an opportunity to radically redesign our courts for the 21st century. We can also expect pressure to grow on governments to fund technological solutions that will help bring down the court backlog — and improve access to justice.

Read more

CBA NATIONAL MAGAZINE

Getting Jury Trials Back on Track We need to look at both short-term fixes and longterm solutions.

During his annual press conference last week, Chief Justice of the Supreme Court of Canada Richard Wagner warned that the justice system in Canada was not prepared for a pandemic emergency, and that it should be time to consider new initiatives as a result of the crisis.

“To do nothing would be irresponsible,” Wagner said.

“These are not simple challenges and there are no simple solutions. But we have some of the best minds in the country working on these problems, not just through our action committee (with Minister of Justice

David Lametti), but also through the Canadian Bar Association, the Advocates Society and others.”

“All stakeholders in the justice system have a responsibility to contribute to solutions,” Wagner added. “I am confident the changes we make will make our justice system more resilient and more efficient in the years to come.”

In particular, Wagner pointed to addressing jury trials being halted by the pandemic as an immediate priority.

“We worked on guidelines which will be published very soon and at the same time we discussed

ideas on issues that could help in the long run, could help improve the justice system,” Wagner said of the work of the action committee. “Many of those ideas come from judges, lawyers, experts in that field. They are on the table, they are discussed.

Eventually (they) could lead to some amendments to the Criminal Code if Parliament decides to do it, but at the end of the day, that’s up to Parliament to decide those issues.”

Read more

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

CBA NATIONAL MAGAZINE

604.591.8187

Uncharted Territory

www.wcblawyers.com

The law office of the future will look and feel different following the COVID-19 pandemic.

F RE E C O N S U LTAT I O N Gosal & Company · Barristers & Solicitors · City Centre 2 304 - 9639 137A Street, Surrey, BC V3T 0M1

Sarj Gosal B.A., LL.B.

While lawyers and support staff are still mostly working from home, management teams are making plans to reopen law offices. But what will life at the office look like, both immediately and further into the future?

Read more

AUGUST 2020 / BARTALK 25

nothingofficial TONY WILSON, QC

Stake Your Claim!

Wexit and the Wexiteers

G

iven that I’m writing this column on Canada Day, today is as good a day as any to go back 50 years to an old Monty Python sketch called “Stake Your Claim” where 43-yearold Norman Voles (Michael Palin) claimed to have written all of Shakespeare’s plays. When told by the interviewer (John Cleese) that Shakespeare’s plays were performed 300 years before he was born, Voles says: “This is where my claim falls to the ground! There is no possible way of answering that argument, I’m afraid.

I was only hoping you would not make that particular point, but I can see you’re more than a match for me.”

That pretty well sums up “Wexit” and its merry band of “Wexiteers,” who magically believe that BC, Alberta, Saskatchewan and Manitoba (but mostly Alberta) should break away from Canada and form a new country; free from liberal elites, taxes, French on cereal boxes, foreigners, and the CBC. If you follow the news, Wexit rallies are attended almost exclusively by angry white men; many wearing red baseball caps emblazoned with “Make Alberta Great Again” (“MAGA”).

There have been billboards in Alberta calling for Alberta’s independence from Canada, with one even accusing Prime Minister Trudeau of leading Canada into civil war. And with no irony whatsoever, the Wexiteers have applied for three Canadian trademarks (1999061, 1992551 and 1998655) and market their MAGA hats featuring the Canadian maple leaf. Go figure.

26 BARTALK / AUGUST 2020

A 2019 Calgary Herald article reported that the Russian government and its bots were actively engaged in promoting Wexit on social media to disrupt Canadian politics. As with the Brexit referendum and the last US federal election, Russian intelligence is always on the lookout for useful idiots, and the Wexiteers may fit the bill. Darker still, Vice reported last year that the Wexiteers were led by an assortment of rightwing, pro-gun, antiabortion, anti-Muslim conspiracy theorists, climate change deniers and Christian Heritage Party members who have accused the Trudeau government of “normalizing pedophilia,” tolerating ISIS terrorists, and pursuing an immigration policy aimed to “depopulate the white Anglo-Saxon race.” (Maybe we should call these Wexiteers the “Bloc Redneckois”!)

Frankly, I think the Wexiteers are a few french fries short of a happy meal to think British Columbia, a province that elected 11 Liberal MPs in the last election, would break away from the rest of Canada to join this new nation of MAGA hat wearers, far right conspiracy theorists and climate change deniers. But BC should look on the bright side. If Alberta did somehow leave Canada, BC would be entitled to all federal lands bordering its territory, which would include Banff and Jasper National Parks! Unfortunately for the Wexiteers, without easy access to a pacific port from which to

ship its oil and other natural resources, Alberta would be totally landlocked, rather like Bolivia. And God only knows how Alberta would pay for its share of the national debt or its continuing health, education, pension obligations, and social programs without substantial post-COVID oil revenues. Maybe a 65% sales tax?

And does anyone in their right mind think that the First Nations in Alberta are going to vote in unison with a bunch of middle-aged white guys wearing MAGA hats who complain about Ottawa, Trudeau, and foreigners? Alberta First Nations may be justifiably angry at Ottawa for a lot of things, but they aren’t going to give up on Canada and leave their economic and political fate to the Wexiteers. Likewise, new Canadians won’t be keen on living in a new country where they don’t feel welcome anymore.

Like Norman Voles claiming to have written all of Shakespeare’s plays, Wexit is nonsense propagated by magical thinkers, Russian bots and right-wing conspiracy theorists. Canada may not be a perfect union by any means, but when compared to other countries in the world on July 1, 2020, we’re about as perfect as it gets.

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.

grantsapproved

Outlined below is a list of grants adjudicated at the June 20, 2020 Board of Governors meeting.

Funding totalling $5,750,000 was approved for the following 28 continuing and on-track programs: $2,470,000 BC Courthouse Library Society Operating Grant $390,000 Greater Vancouver Law Students’ Legal Advice Society Law Students Legal Advice Program $315,000 Disability Alliance BC Society Advocacy Access Appeals Program and Canada Pension Plan Disability (CPP-D) Advocacy Program $190,000 Archway Community Services Regional Community Legal Advocacy Program $190,000 Ecojustice Canada Society BC Litigation Program $190,000 Kettle Friendship Society Mental Health Legal Advocacy Program $190,000 Together Against Poverty Society Legal Advocacy Program $140,000 MPA — Motivation, Power & Achievement Society MPA Court Services Program — Vancouver

$130,000 Archway Community Services Legal Advocacy Program

$95,000 Port Alberni Friendship Center Outreach Legal Advocacy Program

$100,000 Nelson Cares Society The Advocacy Centre — Poverty Law Advocacy Program

$85,000 South Peace Community Resources Society Outreach Legal Advocacy Program

$95,000 Active Support Against Poverty Legal Advocacy Program $95,000 Chimo Community Services Society Outreach & Advocacy Program $95,000 Contact Women’s Group Society Poverty Law Advocacy Program $95,000 Fort St. John Women’s Resource Society Poverty Law Advocacy Program $95,000 Kamloops and District Elizabeth Fry Society Poverty Law Advocacy Program $95,000 Ki-Low-Na Friendship Society Family Law Advocacy Program $95,000 Ki-Low-Na Friendship Society Poverty Law Legal Advocacy Program $95,000 M.O.S.A.I.C. Legal Advocacy Program $95,000 Nicola Valley Community Justice Services Society Nicola Valley Advocacy Centre Program $95,000 Opportunities Career Services Society Poverty Law Advocacy Program $95,000 Penticton and Area Access Society Poverty Law Advocacy Program

$75,000 Canadian Bar Association, BC Branch Rural Education and Access to Lawyers Initiative (REAL) Program $55,000 Social Health & Economic Development Society of Bella Coola Bella Coola Legal Advocacy Program $50,000 Action Committee on Access to Justice in Civil and Family Matters Fostering National A2J Coordination Program $25,000 Provincial Court of British Columbia Provincial Court Judicial Internship Circuit Court Program $15,000 Canadian Bar Association, BC Branch Access to Justice Week (A2J Week) Program Funding totalling $480,000 was approved for the Major Projects Initiative: $250,000 BC Courthouse Library Society Abbotsford Courthouse Library Implementation $230,000 Access to Justice BC Access to Justice (A2J) Service Innovation Lab

Returning to the Office 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_Office

AUGUST 2020 / BARTALK 27

barmoves Who’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.

VIEW ALL BAR MOVES AT CBABC.ORG/BARMOVES.

Rose Shawlee

Caryna Jiwani

joined Harper Grey as an associate counsel in their growing Wills & Estates and Business Law groups.

Rose was called to the BC Bar in 2007.

joined Harper Grey as an associate in their Commercial Litigation and Construction groups. Caryna completed her articles with the firm and was recently called to the BC Bar.

Lauren McMurtry

Neal Parker

joined Harper Grey as an associate in their Commercial Litigation Estate Litigation and Family Law groups. Lauren was called to the Ontario Bar in 2014 and the BC Bar in 2020.

joined Harper Grey as an associate in their Commercial Litigation, Workplace and Insurance Law groups. Neal completed his articles with the firm and was recently called to the BC Bar.

Gurminder Sandhu

Aynsley Severide

joined Hamilton Duncan as associate counsel where he will continue his insurance defence practice in addition to representing clients in commercial, construction, real estate, and employment disputes.

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

Aynsley completed her articles with the firm and was recently called to the BC Bar.

Alicia Catalano

Nicola Virk

joined Harper Grey as an associate in their Health and Insurance Law groups. Alicia completed her articles with the firm and was recently called to the BC Bar.

joined Harper Grey as an associate in their Commercial Litigation and Insurance Law groups. Nicola completed her articles with the firm and was recently called to the BC Bar.

Luke Elliott

Stewart & Winch

joined Harper Grey as an associate in their Business Law group. Luke completed his articles with the firm and was recently called to the BC Bar.

joined the law firm of Watson Goepel LLP, effective June 30, 2020. This merger allows Watson Goepel to better serve clients on the North Shore and surrounding areas.

28 BARTALK / AUGUST 2020

With my CBA membership, I can directly engage with lawmakers, the press and the public to advocate for legal reform.

Eric Gottardi Senior Partner, Peck and Company

cbabc.org/Renew

AUGUST 2020 / BARTALK 29