BarTalk August 2021 | Sports & Recreation

AUGUST 2021 | bartalkonline.org

Sports & Recreation

SPORT CONFLICT | BEYOND THE PODIUM | AMATEUR SPORTS | HEALTH CARE

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Sports & Recreation

AUGUST 2021 Volume 33 | Number 4

Features

Columns

4

Legal Lessons from High Performance Sport

Jessica Vliegenthart

5

From the President

“I once was lost, but now I’m found.

Was blind, but now I see.”

Beyond the Podium

Jennifer J.L. Brun

Brad Kielmann

Executive Director

2

3

6

Access to Justice in Health Care

Krista James

8

Adapting to a New World

Dean A. Crawford, QC

12

Women’s Olympic Ski Jumping since Sagen v. VANCOC

J. Cherisse Friesen

13

Sports and Recreational Facility Standard of Care

Daniel Barber

20

A Collaborative Lens on Sport Conflict

Kyra Hudson

21

Physical and Mental Health in the Legal Profession

Derek LaCroix, QC

22

Lawyers Winning in Sports Management

Baljinder K. Girn

23

Merge and Acquire the Podium

Josh Vander Vies

A Year Like No Other

Kerry L. Simmons, QC

Indigenous Matters

10

The Price of Protecting Rights

Kate Gunn

Indigenous Matters

11

The Keystone XL Cancellation — Indigenous Nations Hold the Key to Moving Forward Malcolm Macpherson Guest Column

16

A Mediator’s Top 10 Tips for Counsel

Bill Holder

Practice Talk

18

Sports Disputes in the Internet Age

David J. Bilinsky

Dave’s Tech Tips

There are other ways for a sports dispute to be resolved in Canada in addition to the SDRCC

David J. Bilinsky

Nothing Official

19

28

Bring Out Your Dead Tony Wilson, QC

From the Branch 7

Advocacy in Action

Brandon D. Hastings, Committee Chair

14

SectionTalk

25

Professional Development

Editorial Committee Tonie Beharrell Baljinder Girn

From the Community 17

BCLI/CCEL Update

17

Article from National Magazine

24

Tips from Courthouse Libraries BC

24

CLEBC Update

27

The Law Foundation of BC

28

BarMoves

Eryn Jackson Isabel Jackson

Greg Palm Lisa Picotte-Li

Crystal Tomusiak Sean Vanderfluit

Carolyn Lefebvre Sanjit Purewal

Jo-Anne Stark Alexandra Suchy

Deborah Carfrae, BarTalk Editor Staff Contributors Alyssa Brownsmith Michaela David

Travis Dudfield Eileen Huster

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FROM THE PRESIDENT JENNIFER J.L. BRUN

“I once was lost, but now I’m found. Was blind, but now I see.”

The path to reconciliation

I

have always been a proud Canadian. When I backpacked internationally, I was certain to display my embroidered Canadian flag. I was taught that Canada’s social fabric is a mosaic, not a melting pot. Brightly coloured pieces of ethnicity, culture, language, racial identity, sexual orientation, and gender identity inlayed side-by-side, creating harmonious beauty. That everyone is equal before and under the law, and has the right to the equal protection and equal benefit of the law without discrimination.

Recently, however, my utopian vision of Canada has been shattered.

In recognition of National Indigenous History Month in June, more than 500 radio stations across Canada collaborated to amplify, elevate, listen to, and learn from Indigenous voices with A Day to Listen on June 30. The collaboration followed public announcements of the remains of Indigenous children being found buried on the grounds of residential school sites within Canada.

As I listened that day, I was struck by an elder citing the Christian hymn Amazing Grace. She spoke of the hymn having been written by the English poet and Anglican clergyman, John Newton.

Briefly, Newton was conscripted into the Royal Navy, later became involved in the Atlantic slave trade, and after a near-death experience became an abolitionist. Amazing Grace was written to illustrate a sermon he delivered on New Year’s Day of 1773. The elder quoted from the first verse of the hymn, stating: I once was lost, but now I’m found.

Was blind, but now I see.

She inferred that as Indigenous children are being found, Canada is no longer blind.

Canada’s residential school system was an education system in name only.

2 BARTALK / AUGUST 2021

These “schools” were created to weaken family ties and cultural underpinnings. They aimed to indoctrinate Indigenous children into the culture of the legally dominant Euro-Christian Canadian society.1 The residential school experience has been hidden for most of Canada’s history, until survivors found the strength and courage to bring their experiences to light culminating in the largest class-action lawsuit in Canada’s history.

While many Canadians expressed shock and horror upon hearing of Indigenous children’s unmarked graves, Indigenous communities have known and shared this truth for decades while searching for their loved ones. The Truth and Reconciliation Commission (“TRC”) reported in 2015 that at least 6,000 children never returned home from attending residential schools. The CBA continues to call on government and the churches involved to fully implement and resource the TRC’s Calls to Action 71-76, which focus on missing children and unmarked burials. As CBA President Brad Regehr, member of the Peter Ballantyne Cree Nation in Saskatchewan, states: “Finding and returning these missing children is a necessary step toward healing for Indigenous peoples and communities — and for Canada as a whole — as well as a critical part of this country’s reconciliation journey.”

The historical and ongoing devastation of colonization experienced by Indigenous peoples in Canada remains prevalent.

The systemic challenges — particularly in the criminal, child protection, and family justice sectors — demand our attention as a profession. Indigenous children continue to be removed from

their families and communities today.

We must do better. As the TRC executive summary preface states: “Getting to the truth was hard, but getting to reconciliation will be harder. It requires that the paternalistic and racist foundations of the residential school system be rejected as the basis for an ongoing relationship. Reconciliation requires that a new vision, based on a commitment to mutual respect, be developed.”

This is my last column as CBABC President and I would like to take this opportunity to personally acknowledge, with sorrow and regret, the significant harm done to Indigenous peoples as a result of the role the legal profession played in the implementation and enforcement of assimilationist government laws and policies. This happened under our watch.

Reconciliation will take time and effort from each of us. As lawyers — as warriors of justice — we are well positioned to lead the charge. We must work to atone for the role we played in Canada’s dark history and to achieve true reconciliation. Only then can we restore pride in our country and profession.

It has been an absolute honour and privilege to serve as your president. I am a better person and lawyer for having had the opportunity. Thank you.

Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada, 2015, Preface.

1

Jennifer J.L. Brun

president@cbabc.org

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

A Year Like No Other And we thrived!

T

he past year has challenged all of us in ways we hadn’t ever experienced. But if there is one thing all lawyers can do, it is to rise to meet a challenge. The continual adaptation asked of us in both our professional and personal lives has brought new opportunities and perspectives. You brought this growth mindset into CBABC where it was matched by a service team equally ready and able to support members in all the challenges thrown our way.

When we look back on the past CBABC year, our collective work on the Agenda for Justice 2021 and the discussions which followed, is a highlight. Following the October surprise election call, volunteers worked hard and fast to prepare our law and policy reform platform released in February. CBABC’s immediate priority was to secure funding to support the modernization of the courts and justice system, and to retain virtual signing provisions beyond the end of the pandemic. And we succeeded.

Even better, we strengthened our communications with the Ministry of Attorney General and all levels of court to keep the dialogue going.

Our role is always to bring the frontline experiences of members and their clients to the discussion to help those responsible for systems understand what is needed. Meanwhile, members saw not only the benefits of virtual proceedings, but also their limitations. Read the Advocacy Update to discover two recent submissions made by CBABC to the courts and the government.

The commitment to equality was also a highlight of the year. Our Young Lawyers Advisory Committee completed a

submission to address the exploitation of articling students. The Board of Directors and SOGIC created educational resources for members to understand and follow the directives to share pronouns and form of address for all court participants. These resources were picked up across Canada as more jurisdictions moved to follow British Columbia’s practices to demonstrate respect to court participants, including lawyers. CBABC’s Reconciliation Response Plan for law firms went national as part of the Truth & Reconcilation Toolkit for the profession.

Members drew strength from our most inspired leaders and from each other. Justice Abella’s address at our AGM in February called upon the legal warriors to continue to stand for those who most desperately need representation and change. Commissioner Marion Buller

Responding to member interests and leveraging the contributions of volunteers was a hallmark of this past year. inspired us to incorporate the Calls to Justice from the Inquiry Report on Murdered and Missing Indigenous Women and Girls in all CBABC work.

And as the foreshadowed discovery of remains of children who attended Indian residential schools across Canada came to light, the Aboriginal Lawyers

Forum hosted Sharing Circles for Indigenous and non-Indigenous lawyers to connect and be supported.

Our Sections Executives continued to connect with their peers to bring substantive law PD to colleagues.

Unprecedented attendance at virtual meetings surpassed 15,800 compared to 12,593 last year. CBABC offered professional development virtual events focusing on truth & reconciliation, equality & diversity, and ethics with over 3800 attending. We made it easier for members to explore all programs and events, and improved our social media communications.

CBABC introduced Thoughtexchange to capture your ideas and evaluate those of others on topics including legal service delivery, advocacy priorities, court practice, questions at PD sessions, and so much more. Your valuable input shaped our member services and policy and advocacy throughout the year. We’re enhancing our reporting back to you next year and look forward to your continued participation.

Responding to member interests and leveraging the contributions of volunteers was a hallmark of this past year.

7338 lawyers, law students, and judges are members in BC — more than ever in the past 16 years! Don’t forget to renew your membership to receive relevant value and sustain the strength of your association.

Kerry L. Simmons, QC

ksimmons@cbabc.org AUGUST 2021 / BARTALK 3

feature

JESSICA VLIEGENTHART

Legal Lessons from High Performance Sport

I

t’s often said that “sports look good on a resumé” with little tangible explanation as to why.

I trained and played with Team Canada for five years. I traveled the world, competing on different continents and in wildly different conditions — from the glitz and glam of the Paralympics, to grueling training camps in the sweltering heat of Brazil. For three of those years, I was also in law school. Shortly after playing in the London 2012 Paralympics, I started my articles. Now a seven-year call, I’m often aware that much of how I run my practice came from lessons learned on the basketball court.

THE BEST TEAMMATES DON’T NEED TO BE BEST FRIENDS When I played for Team Canada, there was a 23-year age span from the youngest to oldest player. Very often, you could find yourself playing alongside someone with whom you had very little in common, from thousands of kilometers away, and sometimes spoke a different language. At times, it could get heated and there were definitely disagreements, both on and off the court.

What mattered most, however, was a mutual respect and an understanding that we were working toward the same goal. The same is true in law.

When I articled, there were times I was working alongside lawyers 45 years my senior, with very different interests, and very different lives than mine. Despite that, we always had the common goal of doing the best for the client. There can often be different ideas about how files should be run, and how practices should be 4 BARTALK / AUGUST 2021

managed. Disagreements are fine — sometimes even expected — as long as there is a base of mutual respect and a common goal.

TOP PERFORMERS TAKE THE MOST MANAGEMENT High performance athletes come with high performance personalities. When I look back on my years with Team Canada, I’m very impressed by the amount of personality management done by the coaching staff in order to get our team into its ideal performance state. In my experience, it’s rare for a top performer in any competitive discipline to be laid back and go-with-the-flow. If they appear that way, it’s often the result of years of meditation at the request of a sports psychologist. The same can be true in law — we operate in a detail oriented, deadline-focused world with teams of staff to oversee and instruct.

Often, many of the brightest minds (staff included!) require extra care and guidance to reach their highest potential. Take the time to manage the mental health of both you and your team — it will pay dividends in the end.

I CAN ONLY CONTROL ME — EVERYTHING ELSE IS EXTERNAL No one likes getting a bad draw. Be it a tournament bracket, a referee, or

a judge. In high performance sport, the most successful athletes are those that take external factors in stride. If you find yourself in early foul trouble because the referee likes their whistle, you adjust your play or risk being ejected from the game. The best athletes make these adjustments with little fuss. The same is very true in law. As lawyers, we don’t necessarily get to choose our clients, or, more often, the facts of the client’s scenario. Few of us can say we’ve ever had a perfect client and frankly, it’s irrelevant. There is little sense in agonizing over things we cannot change.

The facts are the facts, and the most effective advocates work with what they have in the moment.

In sum, my legal practice has greatly benefitted from lessons learned from sport about adaptability and resilience in the face of ever-changing circumstances. Whether it be dealing with jetlag and injury, or how best to perform when the gym in Brazil has no air conditioning, I’ve transferred skills from sport to law countless times (including once during an August trial when the Kamloops court house lost air conditioning) and will continue to do so the rest of my career.

Jessica Vliegenthart practises personal injury law at Fulton in Kamloops, BC. She is a Paralympian in the sport of wheelchair basketball, representing Canada from 2007-2012.

feature BRAD KIELMANN

approach for hearing complaints.

The specific arbitration rules for the Safeguarding Tribunal are found in the Canadian Sport Dispute Resolution Code (the “Code”).

Beyond the Podium

G

old medals, lucrative endorsement deals, and fame are some of the benefits athletes may enjoy. But, beyond the podium, athletes are too often subjected to maltreatment.

Richard McLaren, O.C., noted that, “There is a wide reaching consensus that not only is the participation in sport a human right, but so too is participation in safe sport” (the “Independent Report”).

Maltreatment is broadly defined and can be verbal, physical, or sexual.

Whatever the form of maltreatment, the psychological impact on an athlete is long-lasting. Recent high-profile cases have brought maltreatment to the attention of the general public. For example, maltreatment has been exposed in hockey, gymnastics, alpine skiing, swimming, and soccer.

On May 4, 2021, a CBC article cited an Angus Reid poll indicating rampant bullying, misogyny and racism in amateur hockey. Further, in May 2021, the Australian Human Rights Commission found that Australian gymnastics had a toxic culture with a high risk for bullying, harassment, neglect, sexual abuse, assault, child abuse, and misconduct. There is recognition across Canada, and internationally, that something must be done to protect athletes.

Making change is not simple as there are hurdles to overcome, including: Fear

of retribution in reporting maltreatment;

The

culture of a sport may overlook particular behaviours;

The

autonomy of individual sporting organizations;

The lack of independent and trained

investigators and adjudicators; Conflicts The

of interest;

lack of resources;

A

misunderstanding of the duty to report maltreatment; and

A prevailing belief that even if a com-

plaint is made, nothing will be done.

There are many reports, papers and organizations dedicated to addressing maltreatment in sport. In working for a solution, the first step is identifying that there is a problem. The next step is creating a framework on what to do about it. As part of an ongoing process to establish a code of conduct to address maltreatment in sport, stakeholders in the Canadian sport community produced a draft document entitled the “Universal Code of Conduct to Prevent and Address Maltreatment in Sport” (the “Universal Code”).

In October 2020, the Independent Report included recommendations to establish a framework that would implement and administer the Universal Code. viaSport British Columbia is trailblazing a path by developing its provincial safe sport program to handle complaints of maltreatment. The Sport Dispute Resolution Centre of Canada (the “SDRCC”) assisting viaSport in this endeavour, established a Safeguarding Tribunal. Uniquely, this tribunal will provide a victim-centred

The Code introduces a new way of thinking about the adjudication of allegations of maltreatment. Significantly, the Code empowers the arbitrator to fashion testimonial accommodations so that the victim is not re-traumatized, such as: Allowing

a support person to be present or participate at the hearing;

Presence

of a specially trained animal for support; Presenting evidence by

affidavit, teleconference, use of a screen, recorded statement, or a closedcircuit camera; and Advance

approval of questions put to a witness by the arbitrator.

In deciding how best to tailor procedural accommodations, the Code provides that the arbitrator can, among other things, consider the witness’ wishes and feelings along with their particular needs and abilities.

Further to the Independent Report, the Government of Canada designated the SDRCC, in July 2021, to lead the implementation of the Universal Code at the national level.

Athletes sacrifice much to achieve their dreams of standing on the podium.

Their sacrifice should not include the nightmare of enduring maltreatment and its damaging effects.

Brad Kielmann is litigation counsel with McQuarrie Hunter LLP. He is a board member with the SDRCC and has served sport at the local, provincial, and national levels.

AUGUST 2021 / BARTALK 5

feature

KRISTA JAMES

Access to Justice in Health Care Developing a Review Tribunal for BC

I

magine you awaken in hospital after a car accident to learn that the physician has chosen your only family member — the sister who has never respected your beliefs — to make your health care decisions. She has agreed to chemotherapy treatments. Your best friend knows you do not want to go through chemo again. But no one is listening to her.

You were diagnosed with dementia a year ago, and so your doctor determines you are incapable of making your own decision. You think you understand enough to make this decision.

If you or your friend want to challenge either the determination that you are not capable of making the decision about chemo, or the choice of your sister as temporary substitute decision maker, then one of you must file an application with the Supreme Court of BC under s 33.4 of the Health Care (Consent) and Care Facility (Admission) Act. Legal Aid BC will not provide a lawyer to assist with this matter.

Neither of you has legal expertise. You are too physically fragile to leave the hospital. It will take weeks or months to get a hearing.

Treatment is starting tomorrow.

Health care treatment decisions like this one have a significant impact on quality of life. They engage fundamental values and physical freedom. However, British Columbians can be fairly powerless when their mental capacity is called into question. When the Canadian Centre 6 BARTALK / AUGUST 2021

for Elder Law (“CCEL”) consulted with stakeholders across BC as part of their project on health care consent, older people living with dementia, family members, and advocates shared stories demonstrating lack of respect for decision-making autonomy. However, s 33.4 remains completely unused.

Following a recommendation in the 2019 CCEL Report Conversations about Care: The Law and Practice of Health Care Consent for People Living with Dementia, the CCEL undertook research to explore the possibility of developing an accessible health care consent and capacity assessment tribunal for BC. The Study Paper on Health Care Consent and Capacity Assessment Tribunals examines ten such functioning tribunals in Canada and

The experiences of these tribunals illustrates innovation and efficiency in supporting access to justice and tailoring proceedings around people’s unique needs and circumstances.

Australia. The paper considers the Canadian tribunals, Ontario’s Consent and Capacity Board and Yukon’s Capability and Consent Board, and

describes Australian tribunals exercising similar jurisdiction in relation to consent and capacity in health care. Many of the people who seek a remedy under these tribunals are living with disabilities. The experiences of these tribunals illustrates innovation and efficiency in supporting access to justice and tailoring proceedings around people’s unique needs and circumstances.

BC briefly experimented with a health care tribunal from 20002004. Only one of its seven heads of review jurisdiction ever came into force. The tribunal was abolished after making only eight decisions.

Article 12 of the Convention on the Rights of Persons with Disabilities, which Canada ratified in 2010, declares that people with disabilities have the right to exercise legal capacity. The Convention requires States Parties to ensure adequate supports for exercising capacity, which in turn calls upon Canada to revisit many laws and practices to ensure compliance. One of the areas worth reconsideration is access to a realistically accessible review mechanism for health care treatment decisions and incapability determinations. This new study paper identifies policy and legislative considerations that would need to be considered in configuring an accessible tribunal in BC, and lays the groundwork for the public policy exercise of developing a truly accessible non-court review mechanism. Find the paper at bcli.org/ccel.

Krista James is a lawyer and National Director, Canadian Centre for Elder Law.

advocacyinaction PROMOTING THE INTERESTS OF MEMBERS… CBABC champions reforms to our laws and the administration of justice. Many of these important initiatives improve the experiences of our clients and BC citizens generally. They also benefit lawyers. Every change that simplifies a process, reduces costs or increases fairness will make client conversations easier, reduce overhead, or improve career satisfaction.

CBABC also directly advocates for the lawyer’s interest. Our mandate specifically includes promoting the interests of members, representing the legal profession in BC, and advocating for equality, diversity, and inclusiveness in the legal profession.

Here are few highlights of what CBABC volunteers have completed recently.

The

Young Lawyers Advisory Committee (“YLAC”) conducted a survey of articling students and young lawyers about their experiences with paid and unpaid articles.

Using this information, YLAC prepared a submission to the Law Society. The primary recommendation is that all articling students must be compensated to at least match the living wage in the region of the province where the student works.

The

Court Services Committee gathered stories from members on the impact of the Supreme Court’s scheduling system on lawyers, their firms, and their clients. CBABC’s submission to the Supreme Court of BC and the Ministry of Attorney General’s Court Services Branch advocates for the application of technology to modernize and increase the effectiveness of scheduling.

The

Professional Issues Committee and Family Law Working Group have monitored the Law Society’s Innovation Sandbox. Only in June was it clear exactly what lawyer and non-lawyer initiatives have been included in the Sandbox.

\ EMAIL: ADVOCACY@CBABC.ORG

CBABC anticipates making submissions about the trends indicated by those choices, and their impact on lawyers.

The

Professional Issues Committee also is preparing to make submissions to the Law Society’s Governance Review, led by Harry Cayton, when it begins later this year. We’ve reviewed the Law Society’s recent practice of giving awards to the members it regulates, better governance practices, and previous governance reviews conducted by Mr. Cayton.

CBABC members are part of a self-governing profession and how that governance is structured and made effective is of great interest.

In

June, CBABC conducted a ThoughtExchange to gather input from members about accounting firms and banks offering corporate legal services to the public. 52% of the 143 respondents agreed that these services could be offered but only if the work was performed by lawyers or supervised paralegals.

41% of respondents didn’t think banks and accounting firms should be able to offer those services at all. The overarching concern of all respondents was that services may be performed by those without legal training, without the requirement to keep current with legal developments, and without insurance for when mistakes are made. The Professional Issues Committee will use this input to determine the next steps CBABC will take on behalf of its members. participated in the Commission of Inquiry into Money Laundering British Columbia over the past two years, where our sole purpose was to represent the interest of lawyers, CBABC delivered its final submissions last month through our counsel, Kevin Westell.

We look forward to Commissioner Cullen’s findings later this year.

Having

Reach out to us at advocacy@cbabc.org to let us know what matters to you.

AUGUST 2021 / BARTALK 7

feature

DEAN A. CRAWFORD, QC

Adapting to a New World

The impact of public health orders on amateur sports organizations during the COVID-19 pandemic

A

mateur soccer in British Columbia took a dramatic turn on March 13, 2020, when BC Soccer, in response to the COVID-19 pandemic, issued a directive to member organizations to suspend all physical activities until further notice. No games, no practices, no in-person team meetings.

That day harkened a year of adaptation in response to public health orders that initially suspended soccer and other amateur sport, then loosened activity, only to restrict it again in late 2020. Sport organizations would need to devote enormous energy, time, and flexibility to maintain operations as much as possible. As President of the North Shore Girls Soccer Club (“NSGSC”), I had a front-row seat to observe the impressive efforts of scores of volunteers and staff who kept soccer running to the fullest extent possible during the pandemic.

Amateur sport groups often are sizeable, complex enterprises. NSGSC, with more than 2,000 players, is the largest all-girls soccer club in Canada. It also operates adult women’s teams and an indoor soccer bubble and has a contract to run coaching at the North Vancouver School District’s soccer academy. It employs several full- and part-time coaching and administrative staff.

The suspension had immediate implications. While our regular season was just wrapping up at the onset 8 BARTALK / AUGUST 2021

of the pandemic, we were scheduled to run spring break camps as well as spring soccer programs.

The club was forced to cancel all of these programs. The loss of our entire spring program, with hundreds of registered players, was a significant blow.

Gradually, things would open up again. By summer, the club was permitted to move to “Phase One.” For soccer, that meant “drills and skills” camps and training sessions in July and August. Girls would have to remain six feet apart while training and were not allowed to touch the balls with their hands.

As a condition of offering such programming, clubs were required to develop a COVID-19 safety plan

Throughout the process, the club benefitted greatly from the presence of several lawyers on its board. covering such matters as hygiene and equipment protocols, drop-off and pick-up points for parents and an outbreak plan. Many hours were spent by our staff members preparing the plan so we could offer a summer program.

By September, our teams were back to game play, under “Phase Two” of public health orders. Our older teams were placed in regional cohorts to reduce transmission, while the younger teams continued to play against other North Van teams only. Having been cooped up at home for many months without organized sports, both players and parents were delighted to be back on the fields.

We would pivot again, however, in mid-November. Worsening COVID-19 numbers led to additional restrictions in November and December, ultimately with all games being cancelled in early December. We moved back to “drills and skills” for the balance of the season and for spring 2021 programming. At the time of writing, however, the club is optimistic of a return to normal play this September.

Adapting to the varying public health orders was only one of many legal responses needed.

Like many organizations, we took advantage of Societies Act provisions allowing for an electronic annual general meeting. We also took legal advice through this period on risk management, given our insurance policy exempted contagion, and on employment law matters.

Throughout the process, the club benefitted greatly from the presence of several lawyers on its board or who assist in other volunteer capacities. It was an enormous learning experience and we are emerging from the pandemic stronger for it.

Dean A. Crawford, QC, has been President of the North Shore Girls Soccer Club for four years. When not watching his three children on the soccer pitch, he practises employment and labour law at Pulver Crawford Munroe LLP.

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She advises clients and assists senior counsel on a wide variety of business law matters, and has particular experience in Aviation law matters. She was called to the Alberta Bar in 2013, and the B.C. Bar in 2021.

Kulvinder works with the Corporate/Commercial and Commercial Real Estate & Development Practice Groups. He assists senior counsel and advises clients on a variety of real estate transactions and general corporate matters. Kulvinder completed his Articles at the firm, and was called to the B.C. Bar in 2021.

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Indigenousmatters

KATE GUNN

The Price of Protecting Rights Advance costs at the Supreme Court

F

irst Nations are routinely called upon to make difficult decisions about how they should spend limited financial resources. In many cases, these decisions relate to urgent community issues such as access to housing and clean drinking water that most non-Indigenous Canadians take for granted.

At the same time, First Nations are faced with the task of protecting their rights and lands, often in the face of significant pressure from governments and companies seeking to develop Indigenous lands and resources.

In the absence of adequate funding, First Nations are left in the untenable situation of having to choose between addressing the immediate needs of their communities and engaging in costly, time-consuming litigation to ensure the long-term survival of their rights and culture.

Almost twenty years ago, the Supreme Court of Canada sought to address this specific issue when it created the test for advance costs in British Columbia v. Okanagan Indian Band. The test requires governments to pay First Nations’ legal costs in exceptional situations where the case is meritorious and of national importance and cannot proceed without funding. Since its inception, the Okanagan test has proved instrumental in enabling Indigenous groups to advance claims to protect and advance their rights, including the landmark Tsilhqot’in Nation v. British Columbia and Grassy Narrows First Nation v. Ontario decisions.

10 BARTALK / AUGUST 2021

This fall, the Supreme Court will again address the requirements for advance costs in Beaver Lake Cree Nation’s treaty infringement case. In Beaver Lake Cree Nation v. Alberta, the Court will determine whether the original approach to advance costs still applies, or if the narrower approach endorsed by the Alberta Court of Appeal — which would require First Nations to devote all available funds, including resources needed to support their communities, to the litigation before qualifying for advance costs — is correct.

The appeal will provide important insight into the extent to which Indigenous peoples can rely on Canadian courts as a vehicle to pursue reconciliation. It will also have significant implications for both Indigenous and non-Indigenous people.

Courts have been clear that the reconciliation of the rights and interests of Indigenous peoples is both the fundamental objective of section 35 of the Constitution Act, 1982 and an issue of paramount importance to society as a whole. It is in the public interest — not just of those of the affected First Nation — that Indigenous groups have access to advance costs based on the criteria established in Okanagan in order to ensure that such issues are heard and addressed by the courts. By contrast, the lower court’s approach would undermine this objective by precluding First Nations from

seeking recourse to the courts on issues of fundamental public importance.

Upholding the original approach to advance costs could also, paradoxically, lead to a decrease in litigation overall. Confirmation that federal and provincial governments must provide funding to support First Nations’ publicly important section 35 claims in accordance with the criteria established in Okanagan would provide an incentive for the Crown to actively resolve such claims through negotiation, rather than avoiding its obligations through lengthy legal proceedings.

The Beaver Lake appeal presents an opportunity for the Supreme Court to reaffirm the original purpose of advance costs orders — to ensure the prohibitive costs of litigation do not present an insurmountable barrier for Indigenous peoples seeking to protect their rights and lands. A decision rejecting the lower court’s narrow approach would also provide a clear signal that First Nations should not be forced to choose between providing for the day-to-day needs of their members and seeking redress for the longstanding injustices of colonization.

Kate Gunn is a partner at First Peoples Law LLP. First Peoples Law is honoured to represent the Treaty 8 First Nations of Alberta in their intervention in the Beaver Lake appeal. The views expressed here are our own, not those of our clients.

MALCOLM MACPHERSON

The Keystone XL Cancellation — Indigenous Nations Hold the Key to Moving Forward The Indigenous Nations of Canada have mixed views on the impact of the cancellation of Keystone XL by the Biden administration. US President Joe Biden cancelled the project earlier this year through an executive order, fulfilling one of his many campaign climate protection pledges.

Many Indigenous Nations across Canada support this cancellation.

While the cause of climate change is debated, whatever its cause, the argument goes that humans only have one delicate ecosphere floating in space to sustain them, one home if you will, and that no amount of risk to the survival of the ecosphere is acceptable, let alone sane.

There are, however, many Indigenous Nations in Western Canada who take a different lens. At the risk of oversimplification, these Indigenous Nations supportive of hydrocarbon development and transportation view Canadian energy as the safest, cleanest, most ethically sourced hydrocarbons in the world. They believe that global demand for these products will not plateau until at about 2030, and that they should participate in the here-and-now wealth creation of the industry, while playing

an integral role in the inevitable transition to renewables.

There is also a third category of Indigenous Nations, who would like to support the Canadian energy sector for the reasons cited above, but who can’t in good conscience presently do so owing to the Crown’s unwillingness to properly share the revenue creation from royalties, taxes, and levies charged to those companies who extract and transport hydrocarbons through their territories.

For this third category, the spin off benefits in the way of employment, training, joint ventures, and such is insufficient. In the spirit of economic reconciliation and in recognition of the effective reality that Indigenous Nations are at a minimum cotenure holders (or co-landlords depending on the analogy you prefer) of the resources located in their territories, they seek a substantive and meaningful sharing of wealth created and taken by the Crown through royalty, taxation, and levies.

Until this is achieved, this third category of Indigenous Nations is unable to get behind the promotion of such projects as Keystone XL and others.

Adding complexity to the interface between Indigenous Nations in the west and the oil and gas industry at large are many mixed signals from the political elite. Canadian Prime Minister Justin Trudeau, for example, has through his action

signaled that he and his government choose which pipelines succeed, and which fail. Mr. Trudeau tirelessly supported Kinder Morgan’s Trans Mountain Pipeline, which is a curiously difficult position to hold for a self-proclaimed climate activist, but rejected the proposed Northern Gateway Pipeline.

The practical reality on the ground, as a result, is that the fate of new pipeline construction or the expansion of existing hydrocarbon infrastructure resembles something much more akin to political horse trading than anything science and regulatory based, or grounded in ecological protection.

Add to this complexity the other reality that renewable technologies are presently intensely dependent on fossil fuels and processes like open pit mining, and you have a real moral and practical quagmire.

The solution to moving forward with oil and gas development in Canada is best entrusted to the co-management of these resources by Indigenous Nations. Who else, I would ask, is better suited to being stewards of the lands and working to achieve the calculus required to transition to renewables? It is time to bring the Nations in — reconciliation in action.

Malcolm Macpherson is a partner at Clark Wilson LLP. He is Indigenous and leads a large Indigenous client practice focused on the natural resources sector.

AUGUST 2021 / BARTALK 11

feature

J. CHERISSE FRIESEN

Women’s Olympic Ski Jumping since Sagen v. VANCOC

T

he first gold medal for women’s Olympic ski jumping was awarded only seven years ago on February 11, 2014 at the Winter Olympic Games in Sochi Russia. The winner, Carina Vogt of Germany, had the opportunity to win that title in part as a result of the efforts of a number of highly ranked and tenacious women ski jumpers who came before her.

In the leadup to the 2010 Vancouver Winter Olympic Games, 15 plaintiffs, all high-ranking women ski jumpers from Canada, Norway, Germany, Slovenia, and the United States, brought an application against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, (“VANOC”) asserting that female ski jumpers were being excluded from competing at the 2010 Games because of their sex. They sought a declaration that if VANOC planned and staged ski jumping events for men, then a failure to plan and stage a ski jumping event for women violated their equality rights, as guaranteed in section 15(1) of the Canadian Charter of Rights and Freedoms, and not saved under section 1.

In Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCSC 942, Madam Justice Fenlon concluded that while the exclusion of women’s ski jumping from the 2010 Games was discriminatory, VANOC was not in breach of the Charter. While VANOC was 12 BARTALK / AUGUST 2021

charged with staging events from a programme set by the International Olympic Committee (“IOC”), it had no power to either order the inclusion of women’s ski jumping or order the removal of the men’s ski jumping from the Olympic programme for the 2010 Games.

As Justice Fenlon explained: “In other words, VANOC is not under a duty to distribute equally what it has no power to provide.” As owner and governor of the Olympics, only the IOC could alleviate the discrimination against the plaintiffs by including an Olympic ski jumping event for women.

The plaintiffs’ application was dismissed and on November 13, 2009, the BC Court of Appeal dismissed the plaintiffs’ appeal.

The first gold medal for women’s Olympic ski jumping was awarded only seven years ago on February 11, 2014.

The result was undoubtedly a difficult one for the plaintiffs, perhaps especially so for Lindsey Van who, just prior to the decision, had competed on the Whistler 90-metre ski jump (the length of the Normal Hill) and held the record for both men and women. The decision meant that this was a record

that she was unable to defend in the 2010 Games.

While the application was ultimately unsuccessful, the plaintiffs’ efforts garnered increased attention to the sport as well as the athletes’ efforts to be included in the competition.

Change came soon after. On April 6, 2011, (87 years after the start of men’s Olympic ski jumping) the IOC accepted women’s ski jumping into the official Olympic program for the 2014 Winter Olympics. While the women’s ski jumping events do not yet include the Large Hill or Team events (both of which are included in the men’s Olympic ski jumping events), the Women’s Normal Hill has been part of the Winter Olympic programme since 2014.

Since the inclusion of women’s ski jumping in the Winter Olympics, the conversation has turned to another Olympic event open to men, but not women: Nordic combined. Nordic combined is an event that incorporates both ski jumping and cross-country skiing and has been part of the Winter Olympics since 1924. In 2016, the International Ski Federation supported the inclusion of the women’s Nordic combined event in the programme of the Olympic Winter Games in 2022 and plans were underway to do so. However, the IOC ultimately decided to leave it off the schedule for the 2022 Games. Like the women ski jumpers before them, this group of athletes will have to wait for a chance to compete in the Olympic Winter Games.

J. Cherisse Friesen Vice Chair of the CBABC Women Lawyers Forum and is a lawyer with the Ministry of Attorney General. The views expressed are those of the author.

feature

DANIEL BARBER

Sports and Recreational Facility Standard of Care

S

port and recreational activities provide innumerable health and social benefits to their participants and spectators.

However, these benefits come with elevated risks of personal injuries.

Owners and operators of sport and recreational facilities may be liable, in both negligence and under occupiers liability, for injuries that arise from the design of their premises.

Although findings of negligent design of recreational facilities are relatively rare in Canadian case law, it is an area of potential liability that owners, designers, operators, and their insurers need to understand.

The standard of care applicable to the design of recreational facilities is one of “reasonableness.” To avoid liability, an owner or operator must take reasonable steps to ensure that a person, taking reasonable care for themselves, will be reasonably safe in the facility in question.

In assessing the standard of care of recreational facility design, courts typically employ two analytical approaches: 1. A detailed analysis of the facility in question and the design elements that gave rise to the injury.

2. A comparison between the design of the facility and industry standards or designs of comparable facilities.

Courts often use both approaches to some extent, though some cases heavily rely on one over another.

Detailed analysis of the facility can reveal the likelihood of the plaintiff’s

injury occurring. While most jurisprudence undertakes some fundamental analysis of the facility in question, some decisions have placed greater emphasis on in-depth analysis than others. Courts may evaluate factors such as: design

specifications of the facility;

mechanics and probabil-

ity of injury occurring; previous

occurrence of similar injuries; and

signage or other instruc-

tion that warns of risks.

Courts have also reached common sense conclusions from these findings. Protection need only be reasonable, not exhaustive.

Scenarios that have led courts to ascribe liability include: A n

occupier’s pre-existing knowledge of a hazard posed by the absence of a sun screen for a baseball field.

Safety

measures that lull spectators into a false sense of security, but provide inadequate protection for the purported purpose.

An

occupier’s failure to mitigate a reasonably foreseeable hazard arising from a facility’s design.

There are two primary comparative methods that courts employ: 1. Comparing the facility to industry standards, such as official design standards or building codes.

2. Comparing the facility to other facilities of a similar kind. For some amateur facilities, this may be limited to local or regional facilities.

For others, professional facilities, national, or international analogues may be examined.

Courts rarely impose liability on occupiers whose facilities meet or exceed customary standards, though this is not guaranteed. In University of Regina v Biletski, 2019 SKCA 44 (“Biletski”), the defendant’s pool owner’s liability for the plaintiff’s diving injury was affirmed, despite the pool having met the standard of design at the time of construction and its design and usage practices aligning with 90% of comparable pools.

Experts can be extremely helpful in both advancing and defending against facility design negligence claims by explaining complex design concepts, identifying industry standards, and attesting to the adequacy of a facility’s safety features.

Biletski and Rivers v North Vancouver (District), 2020 BCSC 1050 are recent cases in which courts blended the above approaches: combining detailed facility analysis, comparison with industry standards and local facilities, and reliance on expert evidence. These cases demonstrate a modern judicial preference for holistic analysis, while also emphasizing the extent to which negligence claims of this kind are fact-driven. Recognizing the factors that influence the assessment of the standard of design of recreational facilities can help facility owners and occupiers to identify risks, support users, and mitigate potential liability.

Daniel Barber is a partner in Singleton Reynolds’ Insurance, Construction and Infrastructure, and Commercial Litigation practice groups (with assistance from fellowship student Austen Erhardt).

AUGUST 2021 / BARTALK 13

sectiontalk Noteworthy Section Meetings u CIVIL LITIGATION — VANCOUVER Civil Litigation — Vancouver Section hosted three meetings in May and June with exceptional attendance: Chambers

Practice Dos and Don’ts with Master Terry Vos — Master Vos and Jonathan Corbett spoke on their views, strategies, and tips on ways lawyers can adapt and succeed in chambers from the perspectives of both the Bench and the Bar.

u CRIMINAL JUSTICE — VANCOUVER Criminal Justice — Vancouver Section hosted Wrongful Convictions: Prevention and Reversals, featuring Mary Ainslie, QC, Tamara Levy, Tom Arbogast, and Tony Paisana. The panel described the shortcomings in the law student education on wrongful conviction, which led to the creation of the UBC Innocence Project. The Project gives Allard Law students the opportunity to work with experienced and established lawyers to investigate cases of wrongful conviction. This Section meeting is available to all members for free on PD On-Demand.

u

of Summary Trials — Claire Hunter, QC and Craig Watson provided their insight and guidance on summary trial applications.

Bad Court Day: Tips for Navigating and Recovering from Challenging Hearings — Madam Justice Ahmad, Brook Greenberg, QC and Lisa Hamilton, QC shared tips and tricks on how to navigate challenging days in court and recover from difficult hearings.

u

WOMEN LAWYERS FORUM — KAMLOOPS

Women Lawyers Forum — Kamloops provided an opportunity for attendees to hear from Bencher by-election candidates in the Kamloops district.

This meeting was a first of its kind, and the Section hopes to host similar meetings in the future.

Aboriginal Lawyers Forum For the 14th Annual National Indigenous Peoples Day Auction held in June, the Aboriginal Lawyers Forum (“ALF”) raised over $13,500 to support the stature and influence of Indigenous peoples in the legal profession.

In collaboration with the Vancouver Aboriginal Health Society, ALF hosted a second Sharing and Support Circle for Indigenous Peoples, in light of the recent discoveries of unmarked graves at residential schools across Canada.

14 BARTALK / AUGUST 2021

Civil Litigation — Vancouver Island and Okanagan Sections held a joint meeting on Duty of Honest Performance in Contracts with Jeffrey Robinson and Joseph Ensom, who discussed the impacts of the recent Supreme Court of Canada decision to C.M. Callow Inc. V. Zollinger.

How-to

The

CIVIL LITIGATION — VANCOUVER ISLAND AND OKANAGAN

\ EMAIL: SECTIONS@CBABC.ORG

SOGIC UPDATE — by Lisa M.G. Nevens

Happy Pride! Looking Ahead After a Big Year for Trans Visibility Look out for CBABC’s Lawyers with Pride digital participation in Vancouver Pride this August! There is much to celebrate this year — most notably significant advancements in trans, non-binary and gender diverse awareness and inclusion in our profession and courtrooms. While that work is ongoing, we are hopeful that this year’s achievements are the start of enduring improvements in access to justice for our historically underrepresented and under-served communities.

The theme of this issue of BarTalk highlights several additional areas of advocacy and education in need of attention. The policing and scrutiny of trans bodies and identities is especially prominent in both sport and heath care. In sport, there are growing efforts to ban trans youth from participating in school sports in the United States as well as intense ridicule and calls to bar the first out trans weightlifting competitor from the upcoming Tokyo Olympics. In healthcare, there is ongoing need for timely access to gender affirming care as well as for system-wide improvements to ensure that trans patients receive equal care for all medical concerns.

Along with applying an intersectional approach to the urgent work of eradicating systemic racism and colonialism, these issues are likely to be the focus of some of SOGIC’s upcoming initiatives. We invite you to join us. Access CBABC Pride 2021 wearable tabs, digital backgrounds, and social cards at cbabc.org/Pride and show your Pride!

WLF UPDATE — by Kathleen Pinno

Feeling Like a Professional Fraud? There’s Help Many lawyers, especially young lawyers, struggle to recognize their own strengths. I interviewed Shari Pearlman, Assistant Director of the Lawyers Assistance Program, for a recent WLF Newsletter article on the “Impostor Syndrome,” which is an insecurity with one’s designation. It is a feeling or experience, not a pathology. Lawyers — who are often gifted individuals — are commonly affected.

It is important to remember that external contributors such as discrimination and biases in the workplace play a very real role in undermining women and causing feelings of inadequacy. In addition, internal contributors such as perfectionism, low self-worth, and a lack of self-compassion may also cause one to feel like an impostor.

This self-doubt can cause depression, feelings of inadequacy, failure to take risks, and stunted career growth. However, you can leverage feelings of self-doubt to seek help and approach tasks with a humble “beginner’s mind.” Additionally: 1. Lead with curiosity — Consider why you feel self-doubt. Focus on your strengths.

2. Lead with self-compassion — Extend yourself the grace you would give to a friend.

3. Get outside of yourself — Help another person, animal, or plant. Create art.

4. Take Care of Yourself — Brainstorm ways to nurture different dimensions of yourself.

You can also help others by talking about your own challenges openly, pointing them toward assistance when necessary, and giving compliments. If you are struggling with self-doubt, consider visiting lapbc.com or calling the LAPBC at 1-604-685-2171.

AUGUST 2021 / BARTALK 15

guestcolumn BILL HOLDER

A Mediator’s Top 10 Tips for Counsel

L

itigation is frequently resolved through mediation.

Just as there are compelling advocates in court, so are there effective counsel in mediations. Here are ten suggestions to help you excel.

1. TIMING There is no fixed rule on when to mediate. Parties may be less entrenched earlier on. Going sooner can also save costs. In contrast, proceeding later may assist if the parties have completed document production and pre-trial examinations.

2. CHOOSE YOUR MEDIATOR Consider interviewing prospective mediators. Will the parties benefit from a facilitative approach or someone with an evaluative bent? What are the fees? Is the mediator able to conduct a remote session?

3. SCHEDULE A PRE-MEDIATION CONFERENCE CALL Schedule a preliminary discussion between counsel and the mediator. Typically, the mediator will ask if briefs are to be submitted, if experts might be utilized, and check on any special requirements. Likewise, the use of documents and opening statements can be considered. Early communication minimizes surprises.

4. CONSIDER A PRE-MEDIATION CONFERENCE WITH YOUR LEARNED FRIEND Make time to explore common ground and discuss potential concerns. Is it possible to generate a settlement template? That document might provide for a release and an order cancelling the court action in 16 BARTALK / AUGUST 2021

exchange for payment of a lumpsum. An agreement here leaves the settlement amount as the sole focus of the mediation.

5. PREPARE YOUR CLIENT Help your client to understand the mediation process. Take time to explain: a. the mediator’s role and fees; b. whether those fees will be shared by the parties; and c. who will be present at the mediation.

Discuss the concepts of “confidentiality” and “without prejudice negotiations.” Likewise, explain the “flow” of the mediation in terms of openings, joint sessions, and caucusing.

Emphasize the goal of achieving a fair resolution.

Review the strengths and weaknesses of your client’s position. A firm grasp here leads to meaningful negotiation and realistic expectations. Discuss anticipated proposals from the opposing party. Consider offers you could make and whether to include one in your brief. Explain the cost of proceeding to trial should the mediation not prove successful. A calculation of an anticipated costs award by the court can also be reviewed.

6. MEDIATION BRIEFS A concise summary of the facts and issues will usually assist the parties and mediator. Keep in mind a brief is not a pleading. Consider whether certain facts can be admitted.

7. DECISION-MAKERS Mediators generally agree that the decision-makers, both counsel and clients, must be “in-the-room.” A failure to follow this “rule” can significantly decrease the chances for resolution.

8. DON’T USE THE “F-WORD” UNLESS YOU MEAN IT Stating that an offer is “final” can sometimes be disadvantageous.

Have an in-depth discussion with your client. Is this truly their final position? Counsel should consider their own reputation as well. Putting forward a “final” offer and then doubling-back for fur­ ther negotiation may result in your being known as a bluffer.

9. MEMORANDUM OF SETTLEMENT It’s usually best to record any settlement in writing. Drafting the document falls to counsel, but an experienced mediator may be of assistance.

10. FOCUS ON INTERESTS Do your best to see past a “position” and focus instead on the interests at play. When you hear “I have to have this property,” look deeper. It may be the location is critical to the success of the party’s business or that it simply results in a reduced commute for the company’s employees. Seeing what’s behind a position makes negotiating easier. Identifying the interests at play can frequently give rise to alternate settlement strategies.

Stay flexible. Figure out what’s really at stake.

Bill Holder is a Partner at Clark Wilson LLP, recognized in “Best Lawyers in Canada,” and Chair of the CBA’s National ADR Section.

communitynews BCLI & CCEL UPDATE

CBA NATIONAL MAGAZINE

by Luis Millán

Review of Parentage under Part 3 of the Family Law Act

Place Your Bets

Determining who a child’s parents are is an important part of family law. Parentage is the foundation of many aspects of a child’s identity, such as family name and relationships, nationality, and cultural heritage. Parentage can also determine important legal rights and obligations, such as a child’s inheritance rights.

When the Family Law Act came into force it gave British Columbia its first comprehensive legislative framework for the law of parentage. The goals this legislation included treating children equally — no matter whether they were born through natural or assisted reproduction, protecting children’s best interests, and promoting family stability.

BCLI is carrying out a project to examine whether the Family Law Act is meeting these goals, in light of developments that have taken place in the law, society, and reproductive technology since the advent of the Family Law Act. The project is slated to run until December 2022. Its goal is to produce a final report, with recommendations for legislative reform. The project was made possible by the support of the Justice Services Branch, Ministry of Attorney General for British Columbia.

For more information on the project, please visit bcli.org.

If all goes according to plan, singleevent sports betting will become legal. But what will the betting market look like in Canada?

There’s a lot at stake, but odds are the federal government will finally legalize single-event sports wagering, as the Safe and Regulated Sports Betting Act (Bill C-218) waits to clear the Senate. If it does, it will be up to the provinces to figure out the shape betting in Canada will take, and choose whether to implement a competitive gaming regime or retain their monopolistic hold on gambling.

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AUGUST 2021 / BARTALK 17

practicetalk DAVID J. BILINSKY

Sports Disputes in the Internet Age Online dispute resolution shoots and scores r We are the bold We are the free We are the chosen who were told to dream... r

— Music by Veliswa Mehana, Lyrics by © DistroKid, recorded by Veenus

T

he Sport Dispute Resolution Centre of Canada (“SDRCC”) was created

by Physical Activity and Sport Act of Canada (S.C. 2003, c.2). Section 10 of that Act describes the mission of SDRCC as follows: “The mission of the Centre is to provide to the sport community a) a national alternative dispute resolution service for sport disputes; and b) expertise and assistance regarding alternative dispute resolution.”

This is an online dispute resolution service established to ensure that timely, independent alternative dispute resolution (“ADR”) processes are available to all athletes, coaches, national sports organizations, and others involved in all levels of sport in Canada, at low-cost and in both official languages.

The SDRCC is governed by a 12-member board of directors who are appointed by the minister responsible for sport. The Directors reflect regional, language and gender diversity across Canada; some are lawyers, some are former athletes, other are dispute resolution specialists.

The types of disputes that come before the SDRCC are: selection: Team selection accounts for the majority of the disputes brought forward to SDRCC.

Team

18 BARTALK / AUGUST 2021

There are many ways to prevent team selection disputes from arising and many people have an important role to play in this process.

Carding

(financial support): Sport Canada’s Athlete Assistance Program (“AAP”) allows athletes of international calibre to receive financial assistance with their training and competition needs. There are two steps in the process of identifying AAP funding recipients that may potentially lead to disputes: When

a National Sport Organization (“NSO”) recommends a list of athletes for carding to Sport Canada and athletes may be dissatisfied with the decision of their NSO.

After

an NSO has submitted its recommendations for carding, Sport Canada objects to some of the recommendations if they are deemed not to be in compliance with agreed upon criteria.

Doping:

The Sport Dispute Resolution Centre of Canada has had jurisdiction to rule on dopingrelated disputes since June 1, 2004. This date coincided with the coming into force of the Canadian Anti-Doping Program, developed by the Canadian Centre for Ethics in Sport.

Disciplinary

Measures: Sport organizations may have to make decisions to sanction members for unacceptable behaviours, whether

they be athletes, coaches, officials, team managers, volunteers, etc.

Governance:

An increasing number of disputes that are brought to the SDRCC’s attention concern governance issues, including, but not restricted to: improperly

conducted decision-making/election processes in sport organizations; abuse of power and au-

thority by board members; conflicting

interpretations of by-laws; undeclared

conflicts of interests in the management of sport organizations; or affiliation

and recognition of member organizations (clubs, provincial organizations, etc.).

The SRDCC uses four methods to resolve disputes: Resolution

facilitation;

Mediation; Mediation/Arbitration;

and

Arbitration.

Continued on page 19 >>> 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 served on the Board of Directors of the SDRCC and is the Practice Management Advisor (on leave) with the Law Society of British Columbia. Email: daveb@ thoughtfullaw.com Blog: thoughtfullaw.com

dave’s techtips There are other ways for a sports dispute to be resolved in Canada in addition to the SDRCC. The disputant can file an internal appeal to a sport organization; or they can seek Mediation or Arbitration at the Court of Arbitration for Sport (“CAS”).

Many National Sports Organizations (“NSO”) have in place an internal appeal process to resolve disputes.

Their process will generally be set forth in their internal appeal policy, which would prescribe the scope, timing, grounds, screening, and decision of the appeal. Generally, this would be the place to start in trying to resolve a dispute.

“Athletics Canada (“AC”) allows athletes to appeal carding, selection, eligibility, and complaints of violations of AC’s Code of Conduct and Ethics to its Commissioner’s Office.

It sets out the procedures to submit an appeal, including the timeframe,

grounds of appeal, mediation, and hearing. Furthermore, it empowers the Commissioner’s Office to make written decisions. Lastly, it stipulates that these decisions are subject to review by the SDRCC.” (per Gowlings) While this process may be onerous, following the internal procedures set out by different sports organizations will be required before proceeding to the SDRCC. The CAS is another route to resolution. CAS uses Arbitration or Mediation to help resolve disputes.

CAS can only be used when both parties have agreed to refer a matter to the CAS. This could occur due to an Arbitration clause in a contract or regulations (Ordinary Arbitration), or may involve an appeal against a decision rendered by a federation, association, or sportrelated body whose statutes or regulations provide for an appeal to the CAS (Appeal Arbitration).

Gowlings also states that the CAS provides different procedural rules depending on whether it is an Ordinary Arbitration or Appeal Arbitration. However, the procedural rules generally govern the request for Arbitration or appeal, formation of the Panel, and procedures before

the Panel include written submissions, hearings, and evidentiary proceedings. The parties can choose the applicable law to be considered on the Appeal. The Panel is empowered to deliver written decisions, which are final and binding subject to certain conditions.”

The CAS has also established The Anti-Doping Division of the Court of Arbitration for Sport (“CAS ADD”) to hear and decide anti-doping cases as a first-instance authority pursuant to a delegation of powers from the International Olympic Committee (“IOC”), International Federations of sports on the Olympic programme (Olympic IFs), and any other signatories to the World Anti-Doping Code (“WADC”).

These WADC signatories have delegated their powers to CAS ADD to decide whether or not there has been a violation of their anti-doping rules, as well as to decide any sanction, if applicable, in accordance with the WADC. CAS ADD and these procedural rules have been established in conjunction with the applicable anti-doping rules of the WADC signatories concerned. (per CAS)

© 2021 David J. Bilinsky

Continued from page 18 >>>

There is also the new Safeguarding Tribunal. This division only deals with matters arising from code of conduct violations, for which the concerned sport organization has an agreement with the SDRCC to conduct hearings.

(1) Lawyers who have indicated to the SDRCC that they have special interest or expertise in the field of sport law, and (2) Lawyers who have offered to provide free legal advice and services to unrepresented parties involved in disputes before the SDRCC.

All SDRCC dispute resolution serves take place online. The SDRCC maintains two lists of lawyers who may act for parties before the SDRCC:

Furthermore, the SDRCC’s Arbitrators & Mediators come from every region of Canada and have extensive experience in alternate dispute resolution

and sports-related issues. They’ve all received intensive training to ensure an intimate knowledge of the Canadian sport system, sport law issues, and the unique needs of members of the Canadian sport system.

The needs of the Canadian Sport Community for dispute resolution are being met by the SDRCC to serve the bold and free athletes of Canada who are chosen to dream.

AUGUST 2021 / BARTALK 19

feature

KYRA HUDSON

A Collaborative Lens on Sport Conflict

W

e often see media reports on the consequences of conflict in sport: complaints buried or unresolved, coaches terminated, athletes walking away... Recent attention on four-time grand slam champion Naomi Osaka’s withdrawal from the tennis French Open exemplifies some common themes. Ahead of competition, Osaka announced that she would not meet with press during the tournament for reasons of mental health. Instead of seeking a solution, tournament organizers treated Osaka’s announcement as a threat, a common approach when athletes step outside of the box. She was forced to choose between disobeying, or facing the media, something she had made clear was not healthy for her. The organizers’ “all or nothing” thinking reflected old institutions built on an adversarial model of competition, desperate for control and uninterested in the human cost. Sadly, the result was that Osaka did not compete and the world missed an opportunity to watch her in action.

Conflict occurs at all levels of sport from professional and high-performance to the community-based programs we take our kids to every day. This conflict ranges from serious misconduct, including sexual abuse and bullying, to disputes about how a sporting event is administered or whether a coach’s feedback is productive.

In Canada, numerous initiatives have aimed at addressing abuse in 20 BARTALK / AUGUST 2021

sport, including anti-harassment policy and training requirements for national sports organizations, a helpline, and the Universal Code of Conduct to Prevent and Address Maltreatment in Sport. A thirdparty investigation unit, operated

by Sport Dispute Resolution Centre of Canada, was established to assist federally-funded sport organizations to handle complaints and host rosters of Canadian mediators, arbitrators, and investigators.

Despite these strategies, research, along with what we see at our local fields and arenas, tells us there are gaps in the systems to resolve and/or prevent conflict in sport.

In 2019, AthletesCAN and University of Toronto surveyed more than 1,000 current and former national team members: onefifth said they had been victims of “psychological” harm, usually by a coach. Although most attention to date has focused on sexual abuse, findings indicate that athletes experience psychological abuse and neglect to a far greater extent.

What is the missing piece in addressing ongoing concerns identified in the AthletesCAN survey? Why do some athletes drop out of sport and report harmful experiences? What process will help athletes and coaches who want to continue to work together, but don’t agree on communication style? Why was Osaka, one of the most talented players in the tennis world, met with such

opposition when she raised concerns about her mental health?

Currently, conflict resolution in sport is deeply influenced by a competitive worldview which brings a “win-lose” lens to matters on or off the field. The result is that concerns are not heard; mechanisms for reporting and investigating allegations of serious misconduct leave no space for collaborative resolution when other kinds of conflict occur.

Despite efforts to address abuse, the culture of sport continues to block opportunities for collaborative problem-solving.

Until the culture shifts, we will continue to see antiquated coaching practices, athletes who are punished for raising concerns, and who eventually drop out or are “spit out” as noncompliant. While this dynamic is highlighted in stories about top athletes on the world stage, we must also ask: what is the impact of this culture on our children at a recreational level?

As the sport world adopts more collaborative approaches to conflict, there will be greater opportunities for coaches, administrators, and sport organizations to hear feedback and concerns before issues escalate and become the next media story. I’m optimistic that within a collaborative conflict framework, a solution would have been achieved at the French Open, and we all would have had the opportunity to watch Osaka, one of sport’s brightest stars.

Kyra is a mediator, lawyer and investigator and a member of the MediateBC Civil Mediation Roster and SDRCC Investigation Unit.

feature

DEREK LACROIX, QC

Physical and Mental Health in the Legal Profession

I

t is time for us, all of us, to look at Addictions and Mental Health issues in the legal profession and our attitudes to these problems.

A large national research project, undertaken by the American Bar Association (“ABA”) and the Hazelton Betty Ford Foundation, published in February 2016, has confirmed the alarmingly high rates of alcohol abuse and of depression and anxiety among lawyers.

Especially disturbing is that only 7% get help for their drinking problems and only 30% receive help for their depression or their anxiety. In other words, our colleagues are suffering and even dying unnecessarily.

The research project revealed that the largest impediment to getting help is that people “didn’t want others to know” and the closely related “confidentiality concerns.”

That is, the stigma they believe exists against people with alcohol and mental health problems.

This research resulted in the ABA creating a Well-Being Task Force to develop a strategy to improve the health and well-being in the profession. The recommendations included creating a movement to change the culture of the legal profession to one of well-being. Well-being is defined as “a continuous process of moving toward thriving in all dimensions of our lives. This comes from positive psychology (as opposed to pathological psychology it is not about positive thinking). The idea is to change the culture such that the

focus is on the whole person and our unique characteristics and support and encourage development of positive attributes, habits, traits, and processes. It is meant to encourage the idea that seeking help is a positive trait, and not a sign of weakness.

At Lawyers Assistance Program of BC (“LAPBC”) the seven dimensions we emphasize are: 1. Physical 2. Emotional 3. Intellectual 4. Occupational 5. Spiritual 6. Social 7. Cultural In this article I will discuss the Physical Dimension. It is defined as: Physical — striving for regular physical activity, proper diet and nutrition, sufficient sleep, and rejuvenation. Minimizing the use of addictive substances. Seeking help for physical health when needed.

You will notice that this includes more than exercise. There is some survey evidence that lawyers do take time to exercise and that is one of the areas they do value. However, I think that may be as a result of one of the problems that result in the high rates of mental health and addiction problems. Lawyers tend to drive themselves and to focus on extrinsic motivators. Looking good and having high energy fits with that.

Having worked with thousands of lawyers in the past 25 years I have noticed that most do exercise regularly, until overcome by anxiety, depression, or substance misuse. However, at least among the distressed lawyers there seems to be a neglect of other factors such as sleep, and having regular physical checkups, healthy eating, and in particular, a lax attitude toward the effect of mood-altering substances on their physical and mental health.

It is well documented that there is a close correlation between exercise and mental health. Exercise can reduce the incidents of depression and is a great anxiety reliever, and of course it is one of the best stress relievers. It operates at many levels to help us keep in equilibrium. It can help improve our sleep and sleep helps improve our physical and mental health.

There is a synergy between all these many factors that work in a positive way when we develop healthy processes and habits and can work in a negative way when we do not pay attention.

As a beginning — a very simple way to develop the physical dimension is to take one minute (yes, just one minute) every day and ask: What can I do to thrive physically? What am I doing that prevents me from thriving physically? What could I do to thrive physically?

You can call LAPBC at 604-685-2171 or visit lapbc.com for more information and for confidential assistance.

Derek LaCroix, QC (he, him) joined LAPBC as Executive Director in 1997. He is dedicated to helping others.

AUGUST 2021 / BARTALK 21

feature BALJINDER K. GIRN

Lawyers Winning in Sports Management

A

law degree can open many doors outside the traditional practice of law and this includes management roles within an organization. A specific example is sports management.

Professional sports managers must be excellent problem solvers, and be able to understand sports management, human resources, contracts, and business administration. Their responsibilities are wide ranging with involvement in almost all operations of the team, including budgets and planning, marketing, public relations, contract negotiations, and player and coach personnel decisions. Practising law and a law school education provides the requisite skills for this type of work.

It is not surprising to see that a number of professional sports managers have a legal education. Two examples of successful sports managers with a legal background are General Manager Howie Roseman of the Philadelphia Eagles in the NFL and General Manager Bob Myers of the Golden State Warriors in the NBA.

practised law, he used his legal knowledge in various executive positions held with the Canucks (president and general manager) and with other NHL teams. Pat Quinn also hired two former hockey players with law degrees, including Brian Burke who attended Harvard Law School and then went onto become a player agent before taking on management roles with the Vancouver Canucks, the NHL, and other NHL teams; and George McPhee who, after retirement from his professional playing career, attended Rutgers’s University Law School before taking on management roles with the Vancouver Canucks and other NHL teams.

Mike Gillis followed in the tradition of Canucks management with law degrees. The former professional hockey player attended Queen’s University Law School and was a player agent before taking the general manager role with the Canucks.

In the NHL, there, too, are general managers with law degrees. For example, Julien BriseBois practised sports law in a large firm and later served as Director of Legal Affairs for the Montreal Canadiens before joining the Tampa Bay Lightning as Assistant General Manager and eventually becoming General Manager in 2018.

Most recently, Chris Gear, a practising lawyer with the Canucks, joined the Canucks management team. He currently serves the dual role as Chief Legal Officer and Assistant General Manager. Rather than pursuing a master’s degree in sports management, Chris opted for a law degree because it would equip him better for a career in sports management.

Locally, the Vancouver Canucks have a long history of managers with law degrees. The late Pat Quinn joined the Canucks in 1987. Although he never

The road to sports management did not come right after Chris’ graduation from law school. He worked at Blakes for several years where he

22 BARTALK / AUGUST 2021

was able to acquire experience in the areas of commercial law, intellectual property, insurance, and employment law. This experience also provided with him with valuable skills in negotiations. Chris eventually joined the in-house legal team for the 2010 Olympics. This allowed Chris to make the move to the Vancouver Canucks where he joined the Canucks as General Counsel, which then led to taking on a management role.

In his day-to-day role as Assistant General Manager, Chris uses his legal skills on a regular basis such as with player contracts even though there is standard language arising from collective agreements. Over the course of the term of player contracts, complex issues relating to athletes wanting to capitalize on their likeness, sponsorship agreements, trademarking, and player conduct also requires him to routinely utilize his legal training. Chris notes that, when dealing with other NHL management and internal matters, having legal training and experience practising law provides him with valuable negotiation skills and an ability to effectively deal with the management of ongoing commercial and personnel matters. Without his legal background, Chris would not be as effective in his management role.

While a legal background is not a requirement for a successful career in sports management, it is one example where the skills of a lawyer are transferrable and directly relevant to different roles in an organization.

Baljinder K. Girn is senior Crown counsel with the Public Prosecution Service of Canada’s Vancouver office. She also serves as a Directorat-Large on the CBABC’s Board of Directors and is a lifelong fan of the Vancouver Canucks.

feature JOSH VANDER VIES

Merge and Acquire the Podium

Now is the time to reimagine our sport system

O

f all the public health levers available to pull, sport can be the most potent. It is a lot more than just healthy eating and physical activity.

The competitive nature of eating, sleeping, and training to compete and perform is a powerful framework for building health. This is true whether sport goals are chased at school, in a local beer league, or at the international level. The formidable capacity of sport to steward health has made it all the more frustrating when gyms, fields, and pools have had to be closed to confront COVID-19.

Society paid the price and sport has paid the price. Canadian Tire Jumpstart Charities reports that twothirds of parents of children aged 4 to 17 say that COVID-19 has had a strong negative impact on their kids’ participation in sports or recreational play. With youth sport at least partially continuing in many jurisdictions, adults bear even more of the brunt.

In March 2021, about 1/3 of Canadian sport organizations faced bankruptcy. Jumpstart, who reported the stark figure, and others ask Canadians to rescue these organizations, beleaguered by the global pandemic, through support and charitable donations.

Maybe the embattled sport organizations should be allowed to die.

Instead of propping up the status quo, why not ride, what Imagine Canada calls, the “seismic realignment of

the charitable sector” caused by COVID-19 through closures, mergers, significant layoffs and program transformations, into a better sport system? First, consider what exists.

In each of the current 58 sports recognized by the Canadian government, there is a single National Sport Organization (“NSO”) designated by Sport Canada, a department of Canadian Heritage.

NSOs theoretically oversee the Provincial or Territorial Sport Organizations (“PTSO”) in their respective sports.

At the bottom level are the local clubs, theoretically engaging with the NSOs and PTSOs to create an ecosystem, which includes 24 recognized National Multisport Organizations (“MSO”) such as the Canadian Olympic and Paralympic Committees, Own the Podium, Canadian Tire Jumpstart Charities, ParticipACTION and Kidsport.

1. NSO and MSO 2. PTSO 3. Local club But, the sport system is top heavy.

Generally, only NSOs and MSOs can issue tax receipts for donations because the Supreme Court of Canada held sport is in itself not charitable at law in AYSA Amateur Youth Soccer Association v Canada (Revenue Agency), 2007 SCC 42 — instead, the Income Tax Act grants

charity-like status to organizations that “promote amateur athletics on a nationwide basis,” not a provincial or local one. Also, the lustre of international sport means most administrators, coaches and officials want to be involved at the NSO or MSO level.

It is trite that elite athletes are not born international competitors, they need to start with quality early-level sport. That would also greatly benefit the overwhelming majority of Canadians who enjoy sport and recreation but do not go on to become elite athletes.

Consequently, second, consider what could exist.

Why not use the momentum of COVID-19 and consider it to be useful in the sport sector? If organizations are dying, one option is for them to merge. Recently, Australia took its equivalents of NSOs for BMX, cycling and mountain biking and 15 PTSO and club equivalents, and combined 18 boards and 11 CEOs into one organization: AusCycling.

In Canada such alignments could solve many fundraising and talent management challenges.

This kind of bold vision will take a culture shift. Preferable tax status should be preserved where it exists.

Early-level sport thrives in decentralization, while high performance can benefit from well-governed centralized excellence. Canadians from coast-to-coast are the winners in a sport system prospering at all its levels.

Josh Vander Vies is a lawyer focused on charity law and a retired London 2012 Paralympic bronze medalist in boccia.

AUGUST 2021 / BARTALK 23

communitynews TIPS FROM

MAKING THE DOUBLE PLAY — CLBC HOSTS BIG LEAGUE PRECEDENTS DATABASES

For years, legal publishers have resisted licensing premier collections of precedents (i.e., pleadings, affidavits, legal briefs, etc. from real-life court matters) to Courthouse Libraries BC for use by our clients through our public access computers. This meant it was hard for many lawyers to get access to quality precedents unless they had helpful colleagues, or were willing to pay for a premier subscription themselves. This summer, however, CLBC had something of a breakthrough. We signed some new talent to our roster, and you can now access Quicklaw’s pleadings, motions and facta package at our branches. We signed them, so that you can see for free how other pros prepared their work product for litigation.

Try browsing your way through the Quicklaw collection of precedents by topic. If your interest is “sports and athletics,” you will find dozens of Canadian precedents, from a petition protesting mandatory face shields in junior hockey, to a notice of claim about price gouging and ticket sales. Of course, “sports law” intersects with practice areas as diverse as might be imagined, so you can add other legal topics. Sports fishing disputes might involve Fisheries Act issues, sports injuries involve other torts and liability topics, and cases involving rights of transgender athletes bring in human rights and discrimination law. All in all, there are over 500 facta, over 14,700 motions, and over 6,600 pleadings for British Columbia alone. Next time you’re near a CLBC branch, stop by and ask us how to access the Quicklaw precedents collection.

CLEBC Update ANNOUNCING THE LATEST UPDATE TO BRITISH COLUMBIA ADMINISTRATIVE LAW PRACTICE MANUAL At long last CLEBC has updated its British Columbia Administrative Law Practice Manual, with a varied roster of energetic and knowledgeable contributors from the Bench and Bar, all of whom have extensive experience in this specialized practice area.

24 BARTALK / AUGUST 2021

There has been a “sea change” in administrative law post-Vavilov (2019) (SCC), so extensive that this is almost like a new publication. In the first half of the manual, CLEBC’s contributors canvassed admin law at the level of tribunal or other administrative law decision-maker in both the BC and federal jurisdictions; the second half is devoted to practice and jurisprudence in the BC Superior Courts and the Federal Courts on judicial reviews, stated cases, and appeals.

This publication also contains a chapter devoted to appeals from judicial review. Costs, remedies, and interlocutory practice are comprehensively addressed, as well as dealing with self-represented parties. A new collection of litigation documents based on fictitious fact patterns is offered with annotations to illustrate the principles discussed in the chapters.

For more details, visit: cle.bc.ca/771

professionaldevelopment

CBABC.ORG/EVENTS \

Fall 2021: A Look Ahead September

September

October

Managing the Hybrid Workforce

Friends Behaving Badly: How to Deal with Difficult Behaviour in Practice

On the Clock: Estimating & Organizing Time in Chambers and Trials

Explore different forms of lawyer-to-lawyer disputes in practice through real-life scenarios from the perspectives of litigators, solicitors, and the judiciary.

Three hours or 1 hour 55 minutes? Trial for 3 days or 5?

Review best practices for avoiding the ire of the bench and your colleagues while completing your case.

November

November

November

Starting your Own Law Practice

Northern BC Connects 2021

Cloud Computing and the Paperless Office

Learn different strategies and approaches to support in-office and remote workers, including how to design a hybrid workplan for your staff.

Learn best practices to manage your new law practice, including incorporating technological and financial systems.

In this popular regional conference, experienced practitioners discuss current practice management issues and topics.

Is the LSBC checklist overwhelming? This session demystifies cloud computing and highlights easy ways to move your practice into the future.

Ethical Considerations for Every Lawyer Our most popular program comes directly to your doorstep.

Oct 2

Nelson

Oct 20 Kamloops Nov 15

Nov 23 Nanaimo Nov 24 Courtenay

Visit cbabc.org/events for more details and to register!

Victoria

Two new series – Coming this fall

Truth & Reconciliation Series

Science-Informed Practice Series

Explore different aspects of working with Indigenous businesses and First Nations, establishing good relations, and building towards economic reconciliation.

Delve into the science to understand your clients’ experiences, from adverse events in childhood to brain development and the role of the family justice system.

September

October

Part 1: Economic Reconciliation in a Colonial Framework

Part 1: Adverse Childhood Experiences

October

November

Part 2: Indigenous Business Relations and Consultation

Part 2: Brain Development and Client Well-Being

November

November

Part 3: Learning from Leaders

Part 3: Transforming the Family Justice System

AUGUST 2021 / BARTALK 25

nothingofficial TONY WILSON, QC

Bring Out Your Dead

Genealogy is a Knight’s errand

I

’m aware that consumer genealogy tests like Ancestry and 23AndMe have been used by the police in the US and Europe to solve cold cases by identifying the murderer through the DNA of relatives who used the test. Never having committed a heinous crime, (and not planning to), I’m not worried that the police might use my DNA to track me down. Besides, my wife did the test last year and confirmed the “family lore” that she is Métis. So I decided to throw my lot in with Ancestry.ca and see what turned up, genealogically speaking.

I already knew that two out of my four grandparents were from the Manchester area, and one was a Cockney from London: all of them leaving England just after the First World War and inevitably settling in Victoria. So far, I haven’t been able to go back any further than the 1880s for those three. But I’m pretty certain that I’ve hit the genealogical holy grail on my maternal grandfather’s side and can trace that family tree back a thousand years.

My maternal Great Grandfather, Harry Parsons, was from Harbour Grace Newfoundland and moved with his wife to BC in the 1880s to pilot ships that transported gold miners north. At the end of his life, he was a sealer and marine pilot in Victoria. What’s interesting about Harry’s lineage was that his forebears in Newfoundland and their forebears in Devon kept copious records of births and deaths. Harry’s mother was born Tryphana Whiteway in 1831, and because that’s a very unique name, I can trace the 26 BARTALK / AUGUST 2021

seafaring and cod fishing Whiteways back seven generations to around 1594 in Devon.

There’s a smattering of other names going back in time in the family forest before my Whiteways moved from Devon to Newfoundland in the 1700s. There’s the Tuckers, the Gellards, the Daws, the Stevensons, a Bowden, a Babbige Bibidy, a Wallis line, a Wythycombe, and a Degon, but I can’t seem to go back before 1600 with any of them.

And because at seven generations, everyone has 512 Great Grandparents, and at 17 generations everyone has 131,000 Great Grandparents, I can be selective as to which branch to follow, so I followed the gentry.

The forbears of the Devon Whiteways were a hodgepodge of Hexts, Kingstons, Fortescues, Gylls, and Dinhams, and by around 1450 there was a cacophony of Knights, Barons, Ladies, Shrubbers, and other characters from Monty Python and the Holy Grail who all married each other. Sir John Hext’s line goes back to around 1388 when the Hext loins merged with the Fortescues. My 15th Great Grandfather was apparently Sir John of Wympston Fortecue; born in 1412. La di-da.

But wait — there’s more! The Hexts were descended from the Dinhams, and when you travel back in time through the generations of various Ladies, Knights, and Lords who used the Dinham name, it seems the

Dinhams used to be “De Dinhams” before 1388 because they moved with William the Conqueror to England. I can only go back as far as 995 with this branch (only 995?), with the birth of my 29th great grandfather, Geoffrey de Dinham Vicomte de Dinan in Côtes-D’armor, France.

Then the trail ends. Or begins, depending on your perspective.

Admittedly, there could be a few chokepoints in my research. If I picked the wrong Whiteway line or there was a hex on my Hexts, there could be a Knight who says “No” to my lineage. There’s also the possibility of error because there were no “medieval baby name” books then, and different people had the same first and last names over many generations. To complicate matters, because they all lived in the same small villages in Devon for centuries, there were fewer choices for mates in the days before Tinder, so first, second, and third cousins with the same names may well have married each other in closer degrees of consanguinity than the law currently allows.

Although this last historical tidbit doesn’t help my genealogical quest at all, I think it may help to explain both Brexit and football hooliganism.

Tony Wilson, QC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, humourist, self-professed thought leader and all-around raconteur. Consequently, the views expressed herein are his alone and do not reflect the opinions of the Law Society, the CBABC, or their respective members.

announcement LAW FOUNDATION OF BRITISH COLUMBIA — by Cherise Seucheran

INDIGENOUS COMMUNITY LEGAL CLINIC CELEBRATES 25 YEARS For the past 25 years the Indigenous Community Legal Clinic (“ICLC”) has become known for its decolonizing approach to legal education, grounded in connection to BC’s Indigenous communities. The Law Foundation is proud to have provided funding to support the important work of the ICLC since 1996.

First established in 1995 at the UBC Law School, the ICLC started as a small legal clinic running out of a storefront in Vancouver’s Downtown Eastside. The clinic provided pro bono legal services to selfidentified Indigenous peoples in Vancouver and across BC, while also providing an opportunity for students to gain experience in Indigenous legal issues. In the early days when the clinic was relatively unknown to the Downtown Eastside community, staff would walk down to the courthouse on Main Street in search of people in need of legal support.

The ICLC has grown tremendously since then, and recently celebrated its 25th anniversary. Academic Director Patricia Barkaskas says the aim of the clinic has remained the same through the years — to serve the Indigenous community, and to educate the next generation of lawyers in a decolonizing approach to law that incorporates Indigenous knowledge and practices.

“Deconstructing all of the normative violence of legal education and colonial education is a big part of what students come to the clinic to do,” says Barkaskas, who first began working at the clinic in 2010 as a student clinician, and then as an assistant lawyer after she was called to the Bar in 2012.

“They’re also providing excellent legal services to our clients, of course, but doing it in the way they do — that is what really matters.”

In recent years, the clinic has been able to forge connections with Indigenous communities outside of Vancouver. In 2018, with the funding provided by an anonymous donor, the ICLC began a Travelling Clinic program that allows students to bring legal services to more remote parts of the province such as Bella Bella and Bella Coola. The ICLC has also taken on Indian Day School settlement applications: demand has been so extensive that they had to take on an additional full-time articling student to help manage the demand.

To Barkaskas, having both Indigenous and non-Indigenous students at the clinic is important.

“From my perspective, Indigenous students come to the clinic and they bring their own decolonizing knowledge and thinking, and that’s an amazing thing,” she said.

“But it’s also really important that non-Indigenous students are doing this work and learning how to do it from the context of settler harm-reduction, decolonization, and Indigenization.”

Barkaskas says that many students have gone on to pursue careers in Indigenous law — but even for those who choose not to, what they learn at the clinic can be carried with them throughout their careers.

“More importantly, all students who move forward into law are practising in a way that has some Indigenous cultural competency, they’re doing it with a sense of some cultural humility and with an awareness of Indigenous cultures and laws,” she said.

Barkaskas says that over the years, the ICLC has developed a relationship of accountability with the Indigenous communities they serve — and through that, created meaningful change for both clients and students alike.

“As an Indigenous woman, it matters so much that this work is being done,” she said. “It matters, even when it’s imperfect and we have to respond by changing and adapting, and doing better and doing different. I’ve seen the evidence of that over and over and over again in the lives of our clients and of our students.”

AUGUST 2021 / BARTALK 27

barmoves Who’s Moving Where and When Don Mainland

Karina Alibhai

joined Lindsay Kenney LLP, practising business law with a focus on corporate restructurings and acquisitions as well as trademark matters.

joined Harper Grey as an associate.

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

Morgan Barber

Aman Taggar

joined Harper Grey as an associate.

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

joined Harper Grey as an associate.

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

Brian Poston

Alison Colpitts

joined Clark Wilson LLP as Chair of the Aviation group and also a member of the Insurance group.

joined Clark Wilson LLP’s Business Litigation group. Her practice includes commercial litigation, business disputes, contract disputes, Indigenous litigation, real estate disputes, and appellate practice.

Laura Besada

Chris Sharpe

joined Clark Wilson LLP’s Family Law group. Her practice covers cohabitation agreements, marriage agreements, separation agreements, divorce, child support, parenting orders, and property division.

joined Clark Wilson LLP’s Commercial Real Estate group. Chris’s practice includes a broad range of services, including acquisitions and dispositions, commercial lease agreements, and financings and land use.

Stephanie Streat

Sarah Bell-Etkin

founded Synthesis Legal, a construction law and civil litigation focused firm.

joined Edwards, Kenny & Bray LLP as an associate. She practises entertainment law, helping film and television producers bring their vision to life.

28 BARTALK / AUGUST 2021

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

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BARMOVES.

Shaun Langlois

Lucy Williams

joined Lawson Lundell as an associate in their Real Estate group. Shaun was called to the British Columbia Bar in 2021.

joined Lawson Lundell as an associate in their Labour, Employment & Human Rights group. Lucy was called to the British Columbia Bar in 2019.

Jane Mayfield

Sunny Chiu

joined Lawson Lundell as an associate in their Litigation and Dispute Resolution group. Jane was called to the British Columbia Bar in 2021.

joined Clark Wilson LLP’s Family Law group. As a trilingual practitioner, he is able to assist our clients in English, Cantonese, and Mandarin.

Juan Pablo Mendez Campos

Joshua Sved

joined Clark Wilson LLP’s Commercial Real Estate group as an associate. He earned his law degree at UBC and can assist our clients in English and Spanish.

joined DLA Piper (Canada) LLP as an associate in the Corporate group.

Joshua maintains a general business law practice with a focus on advising companies in the technology sector.

Sarina Gill

Ali Adams

joined Branch MacMaster LLP as an associate, practising primarily in the areas of insurance and health litigation.

joined Lawson Lundell as an associate in their Corporate Finance & Securities group. Ali was called to the British Columbia Bar in 2021.

Malali Panah completed her articles and joined Richards Buell Sutton LLP.

AUGUST 2021 / BARTALK 29

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

For employers

For employees

• Attract and retain top talent.

• Earnings are predictable.

• Reduced costs, risks and administration.

• Reduced stress – no complex investment decisions.

• Eliminates compliance and fiduciary risks of administering a pension.

• Consolidate existing registered funds into DBplus.

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

Sign up to receive updates at lawyersfinancial.ca/pension

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

04/2020