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Guest
Westminster First Nations Court Reports Positive Impact
Nicole Garton
Nothing Official
29 The Truthiness is Out There...
Tony Wilson, KC
Isabel Jackson, Committee Chair Editorial Committee
Emma Abdjalieva John Caldwell Demola Okeowo Miranda Wardman Lily Zhang
Tonie Beharrell Dan Melnick Salim Visram Özge Yazar
Deborah Carfrae, BarTalk Editor
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SCOTT MORISHITA
When I ran for CBABC President, I promised that if elected I would use my platform as President to raise awareness of mental health issues in our profession. I committed to speak of my experience with mental illness, with the intention of helping to reduce stigma and to hopefully contribute to culture change in our profession.
A column in every BarTalk issue is reserved for the CBABC President. As my term approached, I knew that my first BarTalk column would discuss mental illness in the profession, including my own experience. As the deadline approached, I grew very nervous. My depression has been in remission for several years, and many are aware of my history. And yet, I still had a lot of fear. Writing that first column was a struggle, and immediately after submitting it I wondered if it was a mistake to get so personal.
But BarTalk wasn’t my only worry. Every CBABC President has the honour of being profiled in the Advocate. My good friend Cheryl D’Sa, KC wrote the profile. While Cheryl was writing the article, we discussed my level of comfort in sharing details of my personal life, including my experience with depression and my journey coming out of the closet. We ultimately decided that it was important to share these details.
BarTalk is sent to every CBA member in the province. The Advocate is sent to every lawyer in the province. If I was nervous about my first BarTalk
column, I had a sense of dread about the Advocate article. I feared that once these articles were published, I would be judged negatively and that some people would think less of me as a lawyer. Further, as someone who does not like drawing attention to myself, I worried that in sharing about myself I would come across as narcissistic.
To my great relief, my fears have not been borne out — as far as I know. A number of people have reached out to say that the BarTalk and Advocate articles resonated with them. The support and encouragement of lawyers, judges, articling students, academics and others gave me the courage to continue writing and speaking about the topic.
Many large and disruptive steps are necessary. However, it also requires many small and incremental steps. The good news is that the process has already started. Lawyers like Derek LaCroix, KC and Brook Greenberg, KC have been leading the charge for many years and have spearheaded meaningful change.
But the responsibility for change isn’t limited to people in leadership positions or those with a pulpit. Each of us owes it to ourselves and to others to take positive steps. If you want to make a difference but don’t know where to begin, start with a small step.
I’m incredibly grateful to have had the opportunity to connect with so many of you over the past year. Emails or interactions at legal events have led to coffees, lunches or Zoom chats. Many people have privately shared with me their own experiences with mental illness. In the course of my many conversations and meetings with lawyers, it was clear to me that anecdotal evidence supports the main findings of the National Study on Wellness in the Legal Profession: mental illness afflicts many of us and affects all of us.
The solution to overcoming our profession’s mental health pandemic is culture change. Culture change is a daunting task that can take years.
If you are suffering with mental illness, I encourage you to have compassion for yourself and to know that you are not alone. There are many of us in the profession that are safe people to speak with. If you can’t think of anyone, call me.
This is my final BarTalk column as CBABC President. Serving in this role has been an honour and a privilege. I’m extremely grateful for the CBABC volunteers and staff who work tirelessly to serve our members, the profession and the justice system. While it was a challenging year, and we still face headwinds, our organization and our profession are stronger than ever.
Scott Morishita president@cbabc.org
KERRY L. SIMMONS, KC
As the news about the United States’ presidential election campaign and the operation of its judicial system infiltrates our Canadian consciousness, this issue of BarTalk, “Public Law and Politics” is timely. And there is no shortage of discussion topics in Canada with SCC Justice Jamal’s recusal from a recent case, the use of the notwithstanding clause in Saskatchewan, and surprise steps in legal aid negotiations in Alberta. Let’s not forget the unofficial summer start of the provincial election campaign and the politicization of bail reform.
How we go about discussing these topics is important. Lawyers have ethical obligations to fulfill that govern how we discuss improvements to our justice system or speak of lawyers and judges. We have enhanced education about the role of government and judges that we can share. We have critical thinking skills that we can and should use to evaluate information and help others to understand. All of these privileges can be exercised by any one of us to elevate and inform discussions.
But many lawyers shy away from these potential roles as educator, advisor or thought-leader. There are valid reasons for hesitancy, not the least of which is the emotional exhaustion of engaging with some people who don’t want to learn. Without a lot of us bravely joining the discussion, however, we run a significant risk that decisions and actions will be ill-informed and therefore have unintended consequences.
The good news is that there are positive stories to tell. There are jurors who leave their service impressed by the role of the lawyers and the judge in the case, who believe that the criminal justice system works effectively. There are young adults who help develop new ways for kids to engage in their family’s restructuring after their parents separate. There are judges making daily decisions that keep our society functioning within the laws the politicians established.
Later this summer, CBABC will release Agenda for Justice 2024, our recommendations to the next provincial government on law and policy reform and funding priorities. The recommendations are based on the work of members on CBABC committees over the past few years and are presented in plain language to make the information accessible to everyone. Every recommendation is backed up by a more detailed briefing note to help political researchers and policy-makers develop arguments. If you take up the cause of discussing some of these issues with friends and family or candidates for election, Agenda for Justice 2024 will be helpful to you.
which started all the way back in 1994. By volunteering to write an article, David gained a platform from which he shared timely information about law practice management, particularly emerging technology. His is one of many examples of lawyers volunteering with CBABC, leveraging the experience to not only build their profile, but to share their knowledge with the profession to make us all better.
Throughout 30 years of columns, David has been a resource for multiple generations of lawyers. I remember as a young lawyer ripping out his column from the physical copy of BarTalk to bring it to a meeting with law firm management. Fast forward 20 years or so to earlier this year, I heard lawyers in our law firm visits tell me that David’s column in BarTalk is their one constant and reliable go-to to keep up with recommended technology options.
On behalf of CBABC membership and staff, I thank David Bilinsky for faithfully thinking, exploring, and asking the questions to write PracticeTalk. You have made a difference to the practice of law. We wish you a long and healthy retirement.
CBABC’s work in advocacy, Sections and other member programs depends on the engagement of volunteers. BarTalk is no different. This issue contains David Bilinsky’s last column,
Kerry L. Simmons, KC ksimmons@cbabc.org
DAVID J. BILINSKY
r For what is a man, what has he got? If not himself, then he has not To say the things he truly feels And not the words of one who kneels The record shows I took the blows And did it my way… r
— Music and Lyrics by C. François, P. Anka, J. Revaux & G. Thibaut, recorded by Frank Sinatra.
30years. It seems like forever, but it passed by in an instant. This column came to be in August 1994 and has been a regular event in my life ever since. I can look back and see the columns like steppingstones over that period.
PracticeTalk was started as the CBA wanted a regular column on practice management for CBA members. As the Chair of the Law Practice Management Section then, I wrote the first column to start the process. Then the time came for the second... and third... and no one else stepped forward, so I kept on writing them. Most of my ideas for the columns came about when I was out for runs. On an early run, the lyrics to: “Why Haven’t I Heard From You” by Reba McEntire suddenly popped into my head. Aha! The idea for the first column on lawyer communication also created my first “Musica l Headnote,” which soon became my trademark.
The doodle that appears on the first column (above) was done by my daughter, then three years old, while sitting at my desk where my first printed column came out.
Dave’s 1st column on page 8 of the August 1994 issue.
Dr. Lauren L. Bilinsky MD grew up with the column always in the background of our lives, written on vacations, up in Whistler and in places long since forgotten.
I thought about mentioning a few notable columns, but it struck me
that highlighting the themes that I continually tried to raise would be more appropriate.
Foremost was leadership: that, as lawyers, we have to seize the opportunity to live with purpose, to shape our day, our practices, to guide our
firms and our communities and make the most of the strengths and the time we have. “Time is the coin of your life. You spend it. Do not allow others to spend it for you.” — Carl Sandburg.
Secondly is continually learning and adapting to change. Over 30-40 years you will experience changes in the law, in business, an increasing rate of change with regard to technology, new approaches to problems, ideas and much more. For example, we are facing a new regulatory environment and increasing calls to make dramatic changes for the accessibility of legal services. “Change is the law of life. And those who look only to the past or present are certain to miss the future.” — John F. Kennedy.
Third, treat yourself, those near you and others with empathy and respect. This applies not only to clients, to staff and partners, but opposing parties and counsel equally. “Compassion and tolerance are not a sign of weakness, but a sign of strength.” — Dalai Lama.
Fourth, plan. From organizing your To-Do list, to drafting a firm budget, to setting strategic and financial goals for yourself and your firm, to adopting new technology, continually anticipate where the world is going and how you can adapt accordingly. “Planning is bringing the future into the present so that you can do something about it now.” — Alan Lakein.
Fifth, strive for extraordinary results . “ People do not decide to become extraordinary. They decide to accomplish extraordinary things.” — Edmund Hillary.
The column was a big part in the other events in my life in the area of practice management. It turned me
into an author and presenter. I was the CBA’s National Co-Chair of the Law Practice Management Section; a long-time speaker, Board Member and Co-Chair of the American Bar Association’s TECHSHOW and active in the American Bar Association’s Law Practice Management Section; a longtime co-author of the Finance column and Editor in Chief of the American Bar Association’s flagship publication, Law Practice Magazine; I was named a Fellow in the College of Law Practice Management and a Fellow in the National Center for Technology and Dispute Resolution at the University of Massachusetts as well as being the Practice Management Advisor at the Law Society of British Columbia for 20 years. Then there was founding and chairing for years of the Pacific Legal Technology Conference here in Vancouver!
Of course, this column would never have lasted as long as it did were it not for the great team behind the scenes — from all the Editors, to BarTalk’s Editorial Committee, the CBA and of course, you, the readers. A shout out to Deb Carfrae who, amazingly, has been my Editor for the last 20 years! Whatever success this column has had, it is entirely due to Deb’s and everyone’s loyalty, support, feedback and engagement over the years.
I owe a special and heartfelt thanks to all my readers, who continually ranked this column high in the BarTalk surveys thereby allowing it to be a part of their lives for so long. I hope the torch is taken up by younger minds who continue to meet the need for practice management information in BarTalk.
“People do not decide to become extraordinary. They decide to accomplish extraordinary things.”
— Edmund Hillary
The work of continually writing PracticeTalk opened doors, and for that I will be eternally grateful. It has been a wonderful ride.
I should say that I stepped on some toes over the years. I recall Microsoft responding to my column on the problems with Microsoft 95. BarTalk printed their comments as well as my retort. And we continued on!
And so, my final thoughts. I have to say thanks to the CBA for allowing me the opportunity to speak to you over all these years without any editorial interference or influence, or modification of what I had to say. In my experience, this is unprecedented and fully appreciated. I wrote each column from the heart, saying what I truly felt and what my research had taught me. As old Blue Eyes said, “I took the blows and did it my way.”
The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.
David J. Bilinsky is the principal of Thoughtful Legal Management, a technology and practice management consultancy and is the former Practice Management Advisor, Law Society of British Columbia.
Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com
It’s been three months since the B.C. government passed the Legal Professions Act, which sets out a single regulator model for lawyers, notaries and paralegals.
Since our response in November 2022 to the Ministry of Attorney General’s intention to modernize the regulatory framework for legal professionals, CBABC — as the essential advocate for the profession — continues to push for preserving separation of the legal profession from government, and regulation of lawyers by a majority of lawyers. We support a single regulator model for the legal profession so long as these changes do not impact lawyers’ independence. The legislation fails in this regard.
\ EMAIL: ADVOCACY @CBABC.ORG
that compromises lawyer independence and self-regulation.
Despite multiple calls to allow legal professionals and the public more time to consider the legislation and provide meaningful feedback, the Bill received royal assent on May 16 with only 30 of its 317 clauses debated with none of the significant concerns raised by lawyers across the province addressed.
We held numerous consultation sessions with lawyers and articling students, including members of our Aboriginal Lawyers Forum, Truth & Reconciliation Committee and Provincial Council. We delivered written submissions to the Attorney General and engaged continuously with the Law Society, associations for notaries and paralegals, and government, as well as other legal stakeholders. Still, the drafting of the legislation took place mostly behind closed doors.
In our letter to the Attorney General on May 14, we outlined our support for certain elements of the legislation, such as the creation of an Indigenous Council, but raised concern around the lack of effort to address other components
The Law Society commenced litigation to challenge the constitutionality of the Legal Professions Act in the BC Supreme Court and applied for an injunction to block the implementation of the LPA until its case could be heard. The injunction hearing, which was heard in mid June, concluded with Justice Gropper reserving judgement. CBABC has activated the process under the CBA Intervention Regulation to have CBA apply to intervene in subsequent stages of the case.
We still hear from our members about trials and long chambers matters getting bumped. The Supreme Court says the main cause is the lack of judges. In May, The Honourable Arif Virani, Minister of Justice and Attorney General of Canada announced five new appointments to the BC Supreme Court and two appointments to the BC Court of Appeal. CBABC continues to advocate for the timely appointment of judges. There are positive signals from the federal government that more appointments are coming but let’s keep the foot on the gas and encourage colleagues to apply.
JAMES MACKENZIE
The Department of Justice (DOJ) was established in 1868, when the Department of Justice Act was passed. It is often described as the oldest and biggest law firm in the country. The DOJ has around 5,000 employees of which roughly one half are lawyers. The other half consists of a broad range of professionals, including paralegals, social scientists, program managers, communications specialists, administrative services personnel, computer service professionals and financial officers.
The mission of the DOJ is to:
support the Minister of Justice in working to ensure that Canada is a just and law-abiding society with an accessible, efficient and fair system of justice;
provide high-quality legal services and counsel to the government and to client departments and agencies; and
promote respect for rights and freedoms, the law and the Constitution.
The DOJ fulfills three roles within the Government of Canada. It acts as:
a policy department with broad responsibilities for overseeing all matters relating to the administration of justice that fall within the federal domain — in this capacity, it helps to ensure a fair, relevant and accessible justice system for all Canadians;
a provider of a range of legal advisory, litigation and legislative services to government departments and agencies; and
a central agency responsible for supporting the Minister in advising Cabinet on all legal matters.
The DOJ’s responsibilities reflect the dual role of the Minister of Justice, who is also the Attorney General of Canada. In general terms, the Minister is concerned with the administration of justice, including policy in such areas as criminal law, family law, human rights law, and Indigenous justice. The Attorney General is the chief law officer responsible for conducting all litigation for the federal government.
As the government’s legal adviser, the DOJ helps develop, reform and interpret laws; plays an important role in criminal law reform and developing federal government policy; and plays an active part in developing public safety and security laws, such as the AntiTerrorism Act The DOJ also works with the provinces and territories on child-centred family justice initiatives.
defend or initiate a civil action, intervene before the Supreme Court of Canada, or appear before a parliamentary committee or a commission of inquiry.
Federal public sector lawyers face many challenges. A federal practitioner wears two hats, those of a public servant and lawyer. This may bring into play competing interests. A federal practice involves certain areas of law in particular, due to matters of federal interest. Indigenous and admiralty law are two examples. Also, administrative and constitutional law are fundamental to a federal practice. The Crown is the defendant in Charter litigation and the Attorney General conducts criminal litigation under the Criminal Code and a variety of other statutes.
Litigation counsel are more likely to practise before the Federal Court, the Tax Court or the Supreme Court of Canada. There is a tendency by other members of the legal profession and members of the public to hold public sector lawyers to a higher standard before the courts because they are public servants. An example is when DOJ lawyers intervene in cases before the Supreme Court of Canada.
DOJ lawyers also support the Attorney General in conducting a wide range of litigation. They defend the government and provide legal services on behalf of other federal departments and agencies. A considerable portion of litigation is carried out in such complex areas as taxation, immigration and Indigenous law.
The federal practice of law is diverse. Lawyers may be asked to help develop policy, draft legislation and regulations, draft contracts, conduct a criminal case as a Crown prosecutor,
Federal lawyers often find the practice of public law to be interesting and rewarding, with broader potential areas of specialization, fewer business development challenges and less billing pressure than the typical private practice of law.
The views expressed in this article are from a personal perspective and do not represent the views or the positions of the Department of Justice or those of the Government of Canada.
KENNETH ARMSTRONG, KC
In early 2022, the Mayor of New Westminster announced he would not be running for re-election. At the time, I had been planning on running for city council as a way to continue my community service. However, after a long walk in the rain with my spouse, I decided to seek the office of Mayor instead. I’m not the first lawyer to seek elected office, and I won’t be the last. This brief article will share some of the things I learned on the campaign trail, comparing to life as a lawyer.
Like trial work, the key to success is preparation. Prepare for media interviews, prepare for all-candidates meetings, prepare for campaign videos, prepare scripts for phone banking, prepare scripts for door knocking. For media interviews, we usually know the general topic of the interview in advance and can prepare somewhat responsive messages. Similarly, we may be given the topics/questions for all candidates meetings in advance; and, even if we’re not, we can prepare messages for the specific community hosting the all-candidates meetings. Although most campaigning is done outside of office hours, the reality is a lot of preparation happens during office hours, and a lot of media interviews happen in office hours.
Unlike examinations for discovery, you don’t have to answer the question you were asked! Litigators know to prepare their witnesses to listen carefully to the question
asked and answer that question (and that question only). We are also trained to listen to witnesses’ answers, and to press the question if the witness evades the question. Politicians are encouraged to segue the question to their message. We are told the more we stick to our core message, the more likely that message will get reported. The only way we can control what’s reported is controlling what we say.
Part of staying on message does include saying what you mean and meaning what you say. It can be very tempting to tell a voter what they want to hear in an effort to secure their vote; but if one goes “off message” for the sake of securing that one vote, one may find they end up contradicting themselves and losing votes as a result.
the lack of civility. Our professional code of conduct tells us our ethical duties as lawyers apply when we are seeking or serving public office. However, not all politicians are lawyers, and there is no professional code of conduct for politicians. There are no rules of civility. It is a street fight. People will make things up about you. There is no sense of “attack problems, not people.” One needs a thick skin.
I’m not the first lawyer to seek elected office, and I won’t be the last.
Social media is not a kind or truthful place. One could describe it as a seething cesspool of anger, hatred, and misinformation. Actually, I have. As a profession we strive to a goal of civility: strive mightily but eat and drink as friends and bemoan
Perhaps the biggest difference between being a political candidate and being a lawyer is political candidates are not the captains of the team. As lawyers, we work in a team and we rely on all our teammates to do their jobs well. However, we’re often the ones making the strategic decisions and advising the client. As a candidate, even as a party leader (and, as the mayoral candidate, I was essentially the leader of our electoral coalition), I wasn’t the captain of the team. We had a campaign manager who had a volunteer team that collectively made strategic campaign decisions. We set the policy (after consultation with constituents), but the campaign manager set the strategic direction for the campaign.
Of lesser importance:
1. I’m much more camera aware, and much more able to flash a camera-friendly smile than I’ve ever been.
2. I get recognized a lot more in public generally than I ever have.
Kenneth Armstrong, KC, Associate Counsel, Icon Law Group.
Mortgage insurance and life insurance both purport to protect your loved ones in the case of your death. But only one will give your beneficiaries the freedom to use those payments to truly suit their needs. That’s life.
Make your next move your best one. Trust life insurance to protect your family — and the roof over their heads.
Mortgage insurance is commonly sold to new homeowners by their banks. At first glance, it makes sense: you buy coverage to make sure your family won’t be responsible for the remaining balance on your home if anything happens to you.
But what your lender might not tell you is that life insurance can be used for the same thing — and more. A life insurance policy can be used toward whatever your beneficiary needs it for. That could mean mortgage payments, of course — but it might also include tuition fees, car payments, camp registration, or a hundred other expenses that make up a well-lived life.
With mortgage insurance, the people you love have no choice about where that money goes. It goes to the bank. What’s more, the premiums for mortgage insurance tend to be higher than for life insurance — and nobody should have to pay more for less.
Here are six reasons why you should pick life insurance over mortgage insurance this home-buying season:
1. WHEN YOU BUY LIFE INSURANCE, YOU OWN THE POLICY.
When you buy mortgage insurance, your bank owns the policy, just like they own your mortgage.
2. WHEN YOU BUY LIFE INSURANCE, YOU DECIDE HOW MUCH COVERAGE YOU NEED.
With mortgage insurance, your bank makes that decision for you.
3. WITH LIFE INSURANCE, YOUR COVERAGE DOESN’T CHANGE UNLESS YOU WANT IT TO.
This is another way of saying you get what you pay for with life insurance. Your coverage doesn’t change just because you get older. It only changes when you want it to — either because you purchase more life insurance, or less, or because you select a policy that has a built-in termination date.
Mortgage insurance works a little differently. It covers only one thing: your mortgage — and your mortgage shrinks every time you make a payment. When your mortgage shrinks, so does your coverage. So far, so good. Except the one thing that doesn’t shrink is the cost of your premiums.
4. WITH LIFE INSURANCE, THE HEALTHIEST CLIENTS GENERALLY PAY THE LOWEST RATES.
Your age, health, and smoking status affect how much you’ll pay for life insurance. For good or bad, the cost of mortgage insurance is one size fits all.
5. WITH LIFE INSURANCE, YOU NAME YOUR BENEFICIARY.
With mortgage insurance, the beneficiary is the bank.
6. WITH LIFE INSURANCE, THE BENEFITS CAN BE USED FOR ANYTHING.
Mortgage insurance is a gift you give your bank. Life insurance is a gift you give your family.
In the event of your death, mortgage insurance will (as advertised) pay for your mortgage. Life insurance can be used for literally anything: to repay debts, pay for education, invest in your family’s future, and even — yes — to pay your mortgage.
It’s your move — but we can help. Talk to a Lawyers Financial advisor about life insurance that will keep your family in house and home. And if you already have mortgage insurance, ask about making the switch.
Lawyers Financial term life insurance is sponsored by the Canadian Bar Insurance Association (CBIA) and underwritten by The Manufacturers Life Insurance Company (Manulife) P.O. Box 670, Stn Waterloo, Waterloo ON N2J 4B8. Lawyers Financial is a trademark of CBIA.
ELIZABETH A. L. SANDERSON
If only, by reading your Law Society Code of Professional Conduct you could be led to assume that government lawyering is just like private or corporate practice — except for prosecutors who must “see that justice is done,” unlike the usual zealous advocacy duty.
You would be misled. Government lawyers are not free agents in private practice.
History, additional constitutional and statutory duties, institutional context and a singular State client, lead to significant distinctions in practice. Here is but a flavour.
As the foremost check on the constitutionality, legality and fairness of government actions, the role of government lawyers is especially important in the exercise of State power. Critical to our constitutional democracy are the constitutional and statutory duties of the Chief Law Officer of the Crown, reflected in all parallel federal, provincial and territorial legislation framing this Office. Particularly crucial is the duty to see that the administration of public affairs accords with the law.
Government lawyers acting on behalf of the Crown’s Chief Law Officer practice law in a governmental hierarchy. Their positions on law and public interest may be reviewed by officials higher up. In our system of responsible government, the Minister of Justice and Attorney General are all answerable to Parliament, Legislatures, courts and the electorate for actions taken in their name.
Government lawyers have one client at their level of jurisdiction: the Crown, that symbol of State stability. This singular client requires a whole-of-government perspective with consistent interpretations of the law and public interest across government and before courts.
In a constitutional democracy, government lawyers must be attuned to changing electoral mandates, without pandering to partisan, private or personal interests. They must neither provide dubious legal cover to pander to partisan demands, nor create dubious legal roadblocks to prevent elected governments from achieving their democratic mandate. (See, for example, Schmidt v. Canada (Attorney General), 2018 FCA 55.)
Unlike private or corporate practice, government lawyers focus on the public interest. They must be attuned to potential impacts of State actions on Canada and Canadians. Their client, after all, represents the interests of all members of Canadian society (Rudolph Wolff & Co. v. Canada, [1990] 1 SCR 695).
Public interest may be determined by ministers attuned to electoral mandates in a constitutional democracy. Beyond a ministerial direction, however, public interest must be assessed in all files, determined by their context and potentially evolving nature.
Candour exercised by government lawyers means not waiting to be asked. Being proactive requires advising on where the law is at and where the law may be pushed by questionable initiatives and policy decisions. Legal risk management and cautioning ministers and officials about being “careful what they wish for” are part and parcel of government practice.
Candour exercised by government lawyers is always mindful of the Constitution and obviously the law in all its aspects, but must go further and consider a myriad of matters, such as Aboriginal and treaty rights and Indigenous legal traditions, international law and influences in laws from other jurisdictions.
Public interest is an assessment shared with other public servants. It is not determined by the specific legal function. For instance, the public interest in litigation fending off well-endowed adversaries attacking proper legislation may require zealous advocacy. Think “Big Tobacco” or “Big Pharma.” Public interest in matters involving victims of harmful government policies point to a more nuanced, judicious approach analogous to prosecutors’ explicit duty to seek justice.
A key responsibility of government lawyers, as a former Justice Canada Deputy Minister explained, is to remind governments of their responsibilities and to help prevent harm.
Without arrogance or dictates, key to healthy government practice in a constitutional democracy is collegiality, nuance and balance with a central focus on the law and public interest in a myriad of fascinating public matters.
Elizabeth Sanderson is author of Government Lawyering (LexisNexis, 2018) and former Justice Canada ADAG, Aboriginal Affairs, & Justice Nunavut Deputy Minister.
Congratulations to the new and returning Section Executives of the 2024-25 term. After our call for volunteers, over 50 new members have joined our Section Executives, with many serving on more than one.
CBABC Section activities have a reputation for unmatched relevance to your dayto-day practice. Our volunteers work hard to collect topics that are timely, effective and transferrable. With over 60 Sections to choose from, and free content for members, Section Enrollment is a key benefit of your CBABC membership.
The 17th Annual Aboriginal Lawyers Forum Auction has wowed the community once again. The auction raised over $16,500 and featured many great items. Thank you to all who donated. All proceeds fund opportunities for Indigenous law school and articling students through the Warrior Project.
The month of May saw a return of the annual Aboriginal Lawyers Forum Retreat at the Squamish Lil’wat Cultural Centre in Whistler. Members heard from esteemed speakers Leah George-Wilson, Dr. Ronald Ignace, The Honourable Chief Justice Leonard Marchand Jr., Madelaine McCallum and Michelle Casavant. The theme, Empowering Indigenous Voices: Nurturing Leadership, Motivation, and Legal Advocacy, inspired attendees, and made space for them to explore Indigenous law and culture.
It’s time
Our gratitude goes to Algonquin sculptor David J. Robinson of Thunder Carving & Education. David donated his handcarved “Hammerhead Shark” wood sculpture valued at $12,000, the auction’s largest donation item to date. The sculpture symbolizes David’s support for the Aboriginal Lawyers Forum mandate.
The Auction happens every June. Follow News+Jobs to stay in the loop for next year!
You can count on annual events like Monte Carlo Night, Associate Judge Shadowing, and Section-led events like the Family, Maritime and ‘For the Love of Litigation’ Dinners to complement your learning in Sections.
Have a meeting topic in mind? Or a speaker you’ve want to hear from? Contact the Sections team so we can start planning.
Sections are the most important tool in the CBA for professional development, networking and advocacy. Enrollment in 60+ Sections is free and unlimited.
cbabc.org/enroll
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The Sexual and Gender Diversity Alliance host meetings dedicated to education, advocacy, and support for the 2SLGBTQIA+ community.
SAGDA kicked off the term with the session Recognizing Hatred in our Backyard with speakers barbara findlay, KC and Glen Stratton. November’s Discussion with The Honourable Harry LaForme covered intersectionality, honouring the 2SLGBTQIA+ community’s history and future within the legal profession. SAGDA co-hosted a session with Health Law in March on Mature Minors and Health Decisions, where Graeme Keirstead, KC, Dionne Liu, and Claire Hunter, KC, discussed recent B.C. cases and the legal, ethical and practical issues surrounding gender-affirming care for mature minors.
SAGDA also provided peer networking opportunities to discuss initiatives and raise awareness for lawyers within the community, including a spring student event in partnership with the UVic Law Careers Office and UVic OUTLaws. SAGDA also participated in the annual Pride celebrations across B.C. this summer.
In June, the Human Rights Law Section hosted its final meeting of the term, where Devyn Cousineau, Vice-Chair of the Human Rights Tribunal, shared updates and insights from the Tribunal. Earlier meetings covered content on changes to the Workers Compensation Act and B.C.’s new Pay Transparency Act
The Human Rights Law Section plans to engage both the Human Rights Tribunal and the Human Rights Commission for upcoming meetings next term.
The Section offers a collegial and welcoming environment where members of the Bar can interact and provide insights into new developments in human rights law. We invite you to join us for a meeting next term!
ALEXANDER C. BJORNSON AND JULIE K. GIBSON
Among the primary public health mechanisms for addressing the COVID-19 pandemic in B.C. was by order of the Provincial Health Officer (PHO) under the Public Health Act. Judicial reviews of these Orders offer guidance on possible approaches to similar public law litigation. In particular, the decisions clarify the approach to the proper record for non-adjudicative decisions in developing public health circumstances, and reaffirm the general rule against cross-examinations of record affiants.
With limited exceptions, in B.C., the evidence on judicial review is confined to the record that was before the decision maker. Adjudicative tribunal decisions arising from formal hearings with contested argument and evidence, by their nature, provide a clear picture of that evidence. The scope is less clear with a non-adjudicative decision responding to a rapidly evolving public health emergency, such as with PHO orders.
In Beaudoin v. British Columbia, 2021 BCSC 512, the court held that with a non-adjudicative tribunal such as the PHO, the record must be reconstructed. The record is not static, but includes background information that will assist the court in understanding the issues or information before the decision maker. CSASPP v. British
Columbia, 2023 BCSC 28 further clarified that general background information from the PHO is admissible in judicial review cases involving procedural and factual complexity with a voluminous and constantly evolving record.
In these types of judicial reviews, the record need not include every single available document. In CSASPP, the court noted the parties’ agreement that the vast amount of information available to the PHO at the time of the orders made it impractical and likely impossible to identify every relevant and available document. The court distilled the guiding principle to be, where a vast amount of information has been generated throughout a lengthy period, the record should contain a balanced representation of the important information available to the PHO on the issues in dispute, so that a meaningful and fair judicial review could be conducted. Moreover, additional documents might be included in the record, by agreement or application, as they were identified.
decision maker in the absence of evidence grounding a reasonable belief the process did not comply with natural justice or procedural fairness.
Those bases were not alleged, but in CSASPP v. British Columbia, (11 October 2022), Vancouver Registry S2110229 (unreported), the petitioners sought to crossexamine the record affiant Deputy PHO. Some petitioners sought to cross-examine on the medical opinions underlying the orders, while others wanted to cross-examine to explore information they asserted was not in the record.
In dismissing the application, the court held that cross-examination on affidavit information not properly part of the record would be irrelevant, while cross-examination on proper record information would not assist the court’s supervisory role on judicial review, which does not extend to assessing underlying facts to make its own findings. Moreover, by definition, the crossexamination itself would not be part of the record.
The courts also reaffirmed that meaningful and fair judicial review does not require that the decision maker or record affiant be cross-examined. The law in B.C. is that it is an error to order cross-examination of a
Alexander C. Bjornson and Julie K. Gibson are litigators with the Ministry of Attorney General, and act for the Province and a wide range of decision makers in public law matters. The authors note they were respondent’s counsel in the CSASPP decisions cited in this article.
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FIONA HUNTER HONOURED WITH 2024 CLEBC LEADERS IN LEARNING AWARD
Fiona Hunter of Victoria’s Horne Coupar LLP has been honoured with the 2024 Continuing Legal Education Society of BC’s Leaders in Learning Award. The award was presented at CBABC’s 38th Annual Bench and Bar Dinner in Vancouver on Thursday, June 20.
The CLEBC Leaders in Learning (LIL) Award is given biennially to an individual who has significantly contributed to enhancing legal education. Fiona, who practises exclusively in estate planning and serves as a mediator in estate litigation, is recognized for her extensive involvement with CLEBC Programs and Publications. She has chaired, spoken at and contributed to over 60 CLEBC initiatives, including serving on the
editorial board of the Estate Planning and Wealth Preservation publication.
Fiona is known for her reliability, generosity, intelligence and thoroughness. She ensures that course topics are relevant and engaging, often recruiting senior Bar members as speakers. Her inquisitive nature and thoughtful suggestions have greatly enhanced CLEBC’s offerings, improving the quality of wills, estates and trust practices in B.C.
CLEBC expresses its gratitude to Fiona for her dedication and is delighted to present her with this well-deserved award. Congratulations, Fiona!
TARYNN MCKENZIE AND LAURYN KERR
The Intimate Images Protection Act (IIPA) was brought into force on January 29, 2024. This law is intended to provide civil legal redress to people who have had their intimate images shared without consent, which can be a devastating form of harm. The legislation covers non-consensual distribution or threats of distribution of intimate images, including near-nude images, videos, livestreams and digitally altered images.
B.C.’s legislation is unique in setting up a fast-track process through the Civil Resolution Tribunal (CRT). The CRT is an online, administrative tribunal designed around the public’s needs, and is accessible 24 hours a day, seven days a week.
The CRT can issue intimate image protection orders that require an intimate image be deleted, de-indexed and/or removed from a website or social media platform. The CRT can also award damages of up to $5,000.
If a person or organization doesn’t comply with an intimate image protection order, the applicant can ask the CRT to order an administrative penalty. Administrative penalties are payable to government, and the amounts are set out in the Intimate Images Protection Regulation. If the individual or organization continues to fail to comply with the protection order, the applicant can apply for subsequent penalties.
The CRT’s free online Solution Explorer is the first step in the claims process. It asks simple questions and gives customized legal information and options in response. It also has self-help tools and referrals. The Solution Explorer helps people better understand their legal issue and options.
There is no fee to make a CRT claim for an intimate image protection order or administrative penalty. For damages claims, the fee is $100 to $150 depending on the claim’s value. There is a $25 discount for applications made online.
After someone files a claim, a CRT case manager contacts the applicant to discuss options and next steps. They help the applicant navigate the CRT process, explain steps and timelines, and help them prepare for a CRT decision. A CRT tribunal member will issue a legally binding and enforceable decision. IIPA decisions are typically issued within one week, but this can vary depending on the CRT’s IIPA case volumes and whether the applicant has all the necessary information at the outset.
person who is 14 years of age or older can make a CRT claim for an intimate image protection order, without assistance by a parent or any other adult. Young people aged 12 and 13 can apply for a protection order with with the assistance of an adult representative of their choosing.
As of June 30, 2024, the Intimate Images Solution Explorer had been used 864 times, and the CRT had received 113 applications for an intimate image protection order, two applications for an administrative penalty, and 13 applications for
damages under the IIPA. As of the end of June, the CRT had made 54 decisions in protection order claims, and five decisions in damages claims.
The legislation allows minors to pursue legal action to stop the distribution of their intimate images. Specifically, a
The B.C. government’s Intimate Images Protection Service offers emotional support, general information and referrals. They may also be able to help participants with the CRT process and sending intimate image protection orders. They can be reached tollfree at 1-833-688-4381.
Tarynn McKenzie is a Senior Policy Analyst with Justice Services Branch. Lauryn Kerr is Legal Counsel with the Civil Resolution Tribunal.
Koffman Kalef is pleased to welcome Kulvinder Samrai back to the firm as a member of the Corporate/Commercial and Commercial Real Estate & Development practice groups.
Kulvinder’s practice focuses primarily on general corporate matters, reorganizations, mergers and acquisitions, real estate transactions, leasing, and financings. Kulvinder first joined the firm as an Articling Student before becoming an Associate. He was called to the British Columbia Bar in 2021, and the Ontario Bar in 2023.
Visit kkbl.com to learn more.
TIPS FROM
Courthouse Libraries BC (CLBC) has partnered with the Ministry of Attorney General to provide free access to Court Services Online (CSO) E-search from public computers in our branches across the province. This service lets users view case details and download documents without any fee for using CSO E-search. This is a pilot service, and will be reevaluated in 2025… so use it now and let us know if it’s something you find valuable.
You probably already know that CSO E-search is an excellent research tool. It lets you investigate people and companies to see what cases or court files they’ve been a part of, and it offers access to millions of documents from B.C.’s courts. Come in yourself, or send in associates, assistants, and even your clients to explore civil, appeal, and traffic/criminal case files, and even find examples of pleadings and orders that can be informative precedents. (One trick is to locate on-point cases using CanLII or another research tool, and then call up that case in CSO to see how previous counsel drafted and used pleadings, orders, etc.)
Using CSO E-search at CLBC is straightforward and free: visit any Courthouse Libraries BC branch, sit down at a public computer, and start your search.
CLBC librarians are available to help with navigating CSO E-search and finding the documents you need (we cannot provide document delivery from CSO, however, per our agreement with the Ministry).
Visit the CLBC website for more information and a user guide: bit.ly/CLBCCSO. Experience the transparency and depth of information CSO E-search brings to your legal research.
The British Columbia Law Institute is examining how economic abuse manifests in family law litigation, particularly through family businesses. Small businesses make up 98% of all businesses in British Columbia, with many being family-run. These businesses serve as both family assets and sources of income for one or both spouses. When a family breaks down, the business often becomes a central issue in litigation. A family business can be exploited to carry out economic abuse. However, economic abuse can be missed as a component of family violence.
This project will look at some potential issues such as defining and understanding economic abuse, alongside examining current challenges in B.C. This can include challenges in valuing a business for division purposes, income of the parties, disposition or hiding of assets and incurring liabilities through the business. BCLI looks forward to releasing a study paper that will address family violence in the legal system. It will:
Examine the impact of various laws on economic abuse in family law cases;
Investigate approaches from other jurisdictions;
Offer practical resources with insights from key informants;
Highlight best practices and red flags for professionals.
If you are interested in learning more of this project, visit the BCLI website at bcli.org/family-business
NICK FALZON
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 represents the Court’s latest effort to draft a comprehensive judgment simplifying how to arrive at the appropriate standard of review on appeal or judicial review. Vavilov’s adoption of a presumptive reasonableness standard, rebuttable only in limited circumstances and subject to clear legislative intent (such as an appeal on one hand or a legislated patent unreasonableness standard on the other), is grounded in both pragmatism and principle.
Vavilov expressly stated that “Dunsmuir’s promise of simplicity and predictability... has not been fully realized.” By adopting a presumptive reasonableness standard at common law, Vavilov has succeeded in allowing parties and courts (usually) to spend less time arguing about the standard and focusing instead on its application. Where the jury is still out on Vavilov is whether it promoted jurisprudential consistency in what the Court branded its “robust” reasonableness standard of review, which can be difficult in application to distinguish from “correctness” review.
What about the principle underscoring the presumption of reasonableness in Vavilov? Vavilov held that legislative delegation of a decision to a state agent is in and of itself a sufficient basis for applying a deferential standard of review on all questions that come before an administrative decision-maker, including questions of law. Where
the legislature has not expressly provided for a more active judicial role such as a right of appeal, it can “safely be assumed” that the legislature intends curial deference.
Vavilov’s “safe assumption” for Canada was resoundingly rejected in the United States in Loper Bright Enterprises v. Raimondo. In Loper Bright, the Supreme Court of the United States overturned its famous precedent in Chevron. The Court held that deference on questions of law — including the interpretation of ambiguous statutory provisions — is not justified as a matter of pragmatism, principle or respect for legislative intent. Like Dunsmuir, Chevron had in practice given rise to considerable inconsistency in application. In principle, the Constitution intends Courts, not agencies, to finally interpret laws, even where the agency’s view is entitled to great respect. As a matter of legislative intent, the Administrative Procedures Act (ignored in Chevron) explicitly charges reviewing courts to “decide all questions of law” and “interpret statutory provisions.”
and tribunals. Implicit in all this are several profound issues which have been mooted throughout the common law world for as long as judicial review has existed. Who is constitutionally, institutionally and pragmatically better equipped to divine legislative intent and “resolve statutory ambiguity”? Who is better equipped to interpret statutes in a fashion that respects individual rights and freedoms? What weight should we place on those rights and freedoms as against state objectives? As reflected in the reaction to Loper Bright, frankly political questions are also at play. Observers’ answers will likely be informed by their own politics, the dominant judicial philosophy of the particular judiciary, and the particular policy orientation of the executive branch.
Canadian administrative law had become so exhausted with the “standard of review” debate over the past several decades that most everyone was relieved to receive Vavilov and just get on with it. Loper Bright demonstrates, however, that there is indeed an alternative and powerful perspective on the standard of review on matters of statutory interpretation.
Vavilov and Loper Bright share the intention to clarify and simplify the law for reviewing courts. Each is in its own way also grounded in respect for legislative intent. But the judgments diverge fundamentally on whether, presumptively and institutionally, the “correctness” of interpretations should be decided by judges or the relevant administrators
And just one final thought: For all the sound and fury surrounding Loper Bright, one wonders whether in practice Canadian judges applying Vavilov and American judges applying Loper Bright might well come to the same result in many cases.
Nick Falzon is an associate at Young Anderson. His practice is focused on advising local governments on administrative law matters.
LinkedIn: Nick Falzon
Twitter: @nickfalzon1
Email: falzon@younganderson.ca
CHRISTINE MURRAY
Question: Could there be two more exhilarating topics covered in one article?
Answer:
a. I am a lawyer, obviously “it depends”;
b. Hold my beer... Have you heard my story about Justin Bieber and the rule against perpetuities?;
c. No, there could not. I challenge even the most senior lawyer in the province to answer this in the negative, while maintaining a straight face; or
d. I am no longer reading this based on the title alone.
In most family law matters, it is prudent to get tax advice. When dealing with family law matters that have corporate interests or complex assets, it is further advisable to get guidance from both a tax lawyer and an accountant. As case law is developing and there are regular updates to the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the “ITA”), it is important to get updated advice for each file. This article provides a brief and general overview of some tax matters that are helpful to be aware of when addressing family law scenarios.
In a separation, spouses can roll over funds from one party’s RRSP/RRIF
to the other’s pursuant to a court order or written agreement without triggering taxes. A T2220 Form will need to be completed.
A transfer of real property to a spouse or former spouse under a written separation agreement or court order qualifies for a Property Transfer Tax exemption (code 15).
Until there is a written separation agreement or court order for property division, the Canada Revenue Agency requires the spouses to designate the same property as their principal residence for the year. This is important to consider in property division agreements so that claims are consistent.
Periodic spousal support is taxable as income to the recipient and tax-deductible to the payor. This requires a written agreement or court order to be in place.
Lump sum spousal support does not attract the same taxable status, so it is important to take into consideration the tax implications of making a lump sum payment vs. a periodic payment. A qualifying retroactive lump-sum payment is tax deductible for the payor in the year it was paid (see form T1 198 for details).
Tax planning for income tax purposes is not effective income planning for support purposes. The FLA and the Divorce Act provide for “piercing the corporate veil” and, when calculating income, will include pre-tax corporate income, an adjustment for preferential tax rates (i.e., dividends) and expenses written off in a company or business that have a personal benefit to the payor.
Under the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”), tax debts are considered family debt and tax refunds are considered family property.
Distributive taxes (such as latent capital gains taxes and distributive taxes) will be considered in the valuation of assets under the FLA. It is very important to consider the difference between tax neutral and tax latent assets in determining the value of property for division.
Upon separation, spouses generally qualify for tax-deferred treatment of the transfer of capital property, unless the transferor elects to waive it under clause 73(1) of the ITA.
Many childcare expenses are divisible by separated parents in proportion to their respective incomes pursuant to Section 7 of the Federal Child Support Guidelines (SOR/97175) (the “CSG”). When dividing these expenses, they should be divided net of the tax benefit received by the parent paying the expenses (CSG Section 7(3)).
Legal fees incurred to obtain or increase support may be deductible for income tax purposes (by the person who is receiving the support) (see Loewig v. Canada, 2006 TCC 476).
BRENT OLTHUIS, KC
Court proceedings, by their nature, often deal with intensely personal facts and events. And court proceedings in our democracy are presumptively open. Transparency and privacy are unnatural partners.
This brief article looks at the three pillars of court openness: (1) the ability to attend court proceedings “live” (in person or over telephone or video), (2) media reporting and (3) access to the court record.1 In the absence of a governing statute or regulation, what discretionary tools are available for clients or witnesses who are loath to provide evidence that will form part of a public record, potentially in perpetuity?
A sealing order serves to restrict public access to the court record. For viva voce witnesses or affiants, it ensures that the court — and, almost invariably, the parties — have access to the witness’ evidence, but that the public has only a redacted version (or no access at all). Redactions can protect names, identifying information, details about a particularly sensitive topic, etc.
Justice Kasirer, in Sherman Estate v Donovan, held that “protecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest” capable
of satisfying the first prong of the test for a sealing order.2 In B.C., counsel must follow the procedure set out in PD-58 when attempting to meet this test.
A practical issue, in cases where it might be difficult to meet the strict test for a sealing order, is whether it might be possible to lead the evidence in a manner that avoids “naming names,” but nevertheless conforms to orthodox procedure (e.g., permits free-ranging cross examination). Can the evidence be presented in general terms, or by using pseudonyms or initials in place of full names? Such steps will not always be appropriate, but where they are, one can achieve the same ends as a sealing
or in perpetuity. In Dagenais, 4 the Court articulated a common law test for cases where publication poses a risk to trial fairness. In Mentuck, 5 Justice Iacobucci reformulated the test, in terms of risks to the proper administration of justice, where the prosecution sought a ban (to protect publication of the “Mr. Big” investigative practice, among other things), but the accused opposed. Notice of an application for a publication ban must be given to the media, and our court has PD-56 to govern the procedure.
Court proceedings in our democracy are presumptively open. Transparency and privacy are unnatural partners.
order, but without the need to amass a record and apply for one.
The publication ban shares similarities with the sealing order.3 It does not, however, take aim at the court record, but rather at reporting on them — either for a specific duration
A third method to protect privacy — for reasons of practicality, typically used in combination with a sealing order — is to request that the court proceed in camera. This has the effect of excluding the public from the courtroom. Proceedings are conducted in secret. It is difficult to conceive of circumstances in civil proceedings where concerns of privacy might justify proceeding in camera — an acute (and temporary) need for secrecy is easier to foresee in certain Mareva injunction and other ex parte contexts — but counsel should nevertheless be aware that there is a possibility of proceeding in camera in the event circumstances are so extraordinary to justify the request.
1 Supreme Court of British Columbia, Policy on Access to the Court Record, (accessed 8 July 2024).
2 2021 SCC 25 at para 73.
3 See Sierra Club v Canada (Minister of Finance), 2002 SCC at para 37.
4 Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835.
5 R v Mentuck, 2001 SCC 76.
Brent Olthuis, KC is a principal at Olthuis van Ert in Vancouver.
ANDREA RITCHIE
Since April 1, 2019, the Civil Resolution Tribunal (CRT) has had exclusive jurisdiction over accident benefits claims against ICBC, and over minor injury determinations. The CRT has specialized expertise over liability and damages claims, up to $50,000.
When Enhanced Care coverage was introduced on May 1, 2021, it included a legislated “lawsuit ban,” effectively removing a person’s right to sue for personal injury damages from a motor vehicle accident except in narrow circumstances. Along with this change, accident benefits available to an injured party greatly increased.
Effective September 1, 2022, the CRT has jurisdiction to hear claims against ICBC about its assessment of responsibility for an accident.
In 2019, the Trial Lawyers Association of BC (TLABC) initiated a constitutional challenge against the CRT’s minor injury determination and liability and damages jurisdiction. On March 2, 2021, then BC Supreme Court (BCSC) Chief Justice Hinkson declared those sections unconstitutional, and of no force and effect (2021 BCSC 348). The government appealed.
On May 12, 2022, the BC Court of Appeal (BCCA) overturned the BCSC’s decision (2022 BCCA 163).
On December 22, 2022, the Supreme Court of Canada (SCC) dismissed the TLABC’s application for leave to appeal (2022 CanLII 121522 (SCC)). So, the CRT’s accident claims jurisdiction over these disputes remains as introduced in April 2019.
Due to the constitutional challenge, the CRT saw a much smaller number of accident claims than initially anticipated. Many claims were put “on hold” pending the outcome of the constitutional challenge.
There was a significant increase in new applications for accident claims after the SCC’s decision in December 2022. The CRT is now seeing higher case volumes for liability and damages claims, and especially minor injury determinations. These relate to motor vehicle accidents which occurred between April 1, 2019 and April 30, 2021.
The CRT developed the Solution Explorer’s content with the help of volunteer personal injury lawyers and other subject-matter experts, including Doctors of B.C., other medical professionals, community legal advocates, members of the public and members of the CRT. The CRT regularly reviews the content to ensure that it is accurate, helpful and easy to understand.
Once a CRT claim is filed, timelines can be quick. The negotiation stage starts after the respondents reply to the claim. Parties are offered a secure online page where the participants can try to reach an agreement themselves.
The CRT is independent from ICBC and from government. CRT members are appointed after a rigorous, merit-based process based on their legal expertise, adjudicative experience and commitment to public service. They are independent, expert decision-makers with varied experience, which includes plaintiff and defence personal injury work, and the implementation and adjudication of administrative benefits schemes.
The CRT’s online Solution Explorer is the first step in the CRT claims process. It asks simple questions and gives free customized legal information and options. Its self-help tools often help people resolve their issue on their own. The Solution Explorer helps people better understand their legal issue and options before they spend time and money on making a claim.
The claim is then assigned to a case manager for facilitation. CRT staff actively case manage the claim and assign deadlines. Unlike a court, the CRT process is not party-driven.
By the time a dispute enters facilitation, parties must have gathered their relevant evidence, including any expert evidence. For accident claims, facilitation is usually completed within six months. Once facilitation ends, parties are required to provide their evidence and submissions, normally within one week.
Over 85% of accident claims settle during facilitation. If the parties can’t reach an agreement, a CRT member will make a decision. CRT decisions are binding and enforceable, just like a court order. CRT decisions are subject to judicial review.
Find CRT decisions and learn more about the CRT process at civilresolutionbc.ca.
Andrea Ritchie is the Vice Chair of Small Claims and Intimates Claims, and formerly the Vice Chair of Accident Claims, at the Civil Resolution Tribunal.
For decades, the Law Foundation of BC has funded a wide range of public interest law initiatives. One of the best examples of work consistently supported by Foundation funding is that of the British Columbia Law Institute. They carry out law reform initiatives by bringing together academic, expert and community collaborators to clarify and improve laws and to develop innovative solutions to legal and policy problems. Their projects are diverse, recently including work on modernizing the Escheat Act, research on reconciling Crown and Indigenous legal frameworks, re-thinking public hearing processes in relation to planning and housing, and reviewing parentage under the Family Law Act. The Foundation is proud to support this independent agency to conduct patient and thoughtful long-term law reform analysis and research, because this kind of work is a vital in order to keep laws responsive to society’s needs. BC Law Institute is part of a network of similar agencies, including law reform commissions, that operate in other provinces, at the federal level in Canada, and in the United States, the United Kingdom, Australia and New Zealand. You can learn more about the work of the BC Law Institute at bcli.org
The 2013 BC Family Law Act (FLA) codified the use of mediation and arbitration in family law disputes. Ten years on mediation flourishes while arbitration continues to flounder.
ADR Institute of Canada describes the goals of arbitration as a process that “enable parties involved in a dispute to reach a just, speedy, and cost-effective” resolution. Family litigation is plagued with court delays and judge shortages. Currently, there are over 140 lawyers qualified as Family Law Arbitrators in B.C. This far exceeds the number of available judges. However, in a 2016 survey of family arbitrators conducted by Victoria Mediation Services, less than 23% of the lawyers who responded had conducted any family arbitrations.
Since 2016, there have been a number of factors that have exacerbated access to family justice, including COVID, a continuing judge shortage, and the reality that criminal cases often take priority. Cost also continues to be a factor.
One of the major challenges has been a lack of understanding, both within the profession and the public at large. Further, the requirement under the FLA (s. 8) to assess family violence is a challenge for arbitrators.
Lawyers generally understand arbitration, but often have a challenge convincing skeptical clients that it is
a better option. This includes the fear of being blamed if they recommend an arbitrator and the results not being favourable. However, the ability to select an arbitrator is positive. Judges are drawn from all areas of law, whereas family arbitrators are highly specialized and can post their resumés. This gives the parties an opportunity to select the right fit for their family.
Lawyers are required to fully advise clients of the of their Alternative Dispute Resolution (ADR) options and to encourage them to utilize these services before proceeding with litigation (FLA s. 4). Unfortunately, client’s often ask “why pay for ADR when you can have a judge for free.” What they do not appreciate are the limitations of the court calendar.
Arbitrations have advantages for SLR. During the pre-arbitration phase, the arbitrator can discuss with both parties what evidence will be required and what rules will be used at the arbitration. This is not a process available to a judge and does not create an apprehension of bias as they are joint sessions.
Family arbitration remains an underutilized option for improving access to justice. Lawyers can meet their legal obligation to encourage resolution out of court by utilizing this option independently or in combination with mediation.
Family lawyers frequently complain about having their matters “stood down” while the court deals with other urgent matters, especially criminal. They also face repeated delays and adjournments. Arbitration is often faster, and the time savings can off-set the cost of hiring an arbitrator.
Meeting the requirements of FLA s. 8 creates a challenge for arbitrators, as family violence screening involves private communications. This can create a perception of bias. This process is streamlined in mediation/ arbitration protocols but do present major challenges when the parties are self-represented litigants (SRL). In these situations, the arbitrator cannot rely on the counsel’s screening.
Speak to opposing counsel early in the dispute to look at the ADR options.
Select a professional who best suits the dispute.
When dealing with self-represented parties, encourage them to seek unbundled services to explain the process.
Document only arbitrations are often very quick and effective instead of interim applications. Set the hearing date as the date all submissions are received.
Set a timeline for the process, including a timeline for a decision. Decisions (called Awards) are written and usually within 14 days of the hearing. The time may need to be extended for longer hearings.
Michael Butterfield is a Victoria-based lawyer and mediator. He has extensive experience in high conflict/high-value family law cases in which disclosure is a prominent challenge.
Reconciliation in Action, a new BC Provincial Court report on the New Westminster First Nations Court (NWFNC) highlights 20 individual stories of people currently participating in NWFNC, including their background, the resources offered by the court, the impact of working with the court’s Indigenous Elders and the individual’s progress on their healing plan. The report concludes that NWFNC has had a positive impact on both its clients and public safety and contributes to Reconciliation.
Established in 2006, the NWFNC is an Indigenous sentencing court that offers culturally appropriate and responsive sentencing for Indigenous offenders (known as “clients”). The objectives of the NWFNC are not only to reduce recidivism and the number of Indigenous people in jail but also to provide clients with tools for healing, drawing on Indigenous culture, traditions and values. The NWFNC sentencing team includes the judge, defence counsel, designated Crown counsel (provincial and federal), Elders, Client Liaison Workers, designated probation officers and a designated duty counsel.
As part of sentencing, clients are provided with “healing plans,” including:
counselling (including for substance use and mental health);
connections to community resources for improving education, employment and housing;
referral s to other health professionals;
efforts to re-establish connections with family;
participating in cultural practices and ceremonies; and
meeting with Indigenous Elders in the community.
Clients are expected to regularly attend NWFNC to review their progress toward completing their healing plan.
There are many similarities in the histories of NWFNC’s clients, including their parents’ or grandparents’ experiences in the residential school system and the “sixties scoop” that separated Indigenous people from their communities, cultures and languages. Many clients witnessed violence and substance use as children, suffered physical and sexual abuse and were in foster care. As adults, many NWFNC clients suffered substance use disorder or mental health issues, or both, and unstable housing. Many have children who are in care.
learn about their history, culture and spirituality.
Many clients were able to access stable housing while participating in NWFNC. Clients who were initially homeless, living in a shelter, or “couch surfing” were able to move to supportive housing, independent living, or living with family as part of their healing plan. Many of NWFNC’s clients had not committed new offences since they first appeared in the court.
Consistent with the Truth and Reconciliation Commission of Canada’s Calls to Action, the NWFNC was shown to:
reduce the over-representation of Indigenous people in prison by providing an alternative to incarceration and promoting rehabilitation and reintegration into communities;
increase the engagement of clients and empower them to address the underlying causes of offending; and
address the needs of offenders with Fetal Alcohol Spectrum Disorder by providing community supports.
Participating in NWFNC helped many re-establish contact with their children. Some have begun visits and regular involvement in their children’s lives after having had no contact with them. The Elders also helped clients who were disconnected from their home communities
The report shows that NWFNC improved clients’ overall wellness in addition to addressing specific factors that led to their offending. Looking ahead, the Provincial Court foresees increased demand for NWFNC as the number of clients and seriousness of offences referred to its court continues to increase.
Now is a great time to stay on track with your professional development. Enjoy the convenience of high-quality educational content at your own pace and fulfill your mandatory CPD requirements effortlessly. Explore the On-Demand Library >
Early career lawyers will benefit from the Career Starter Series. These on-demand sessions offer advice, tools and resources to help you build a successful career path, wherever your legal background takes you.
Career Starter Series On-Demand >
Effective practice management depends on being prepared for unexpected challenges and new opportunities. This series teaches the latest strategies for how to build and maintain your team of law firm professionals.
Practice Management Series On-Demand >
Advancing equality, diversity and inclusion in the legal profession and the justice system is one of CBABC’s core tenets. This series takes an in-depth approach to building EDI knowledge and awareness.
EDI Series On-Demand >
Continue your reconciliation journey this fall with the return of Dr. Darryl Leroux, from the University of Ottawa. This session expands on his research into false claims of Indigenous identity in the child protection context. Join Dr Leroux as he spotlights specific case examples to reveal the emerging issues facing lawyers and the courts in this area, including an analysis of the key factors used by the courts to approve or deny these claims.
TONY WILSON, KC
In 2013, when I was writing a biweekly business and legal column for the Globe and Mail, one of my columns went totally viral. It was called “Don’t Get Taken by Cheap “Canada Goose” Parkas (like I was).” It told my story of how I mistakenly trusted a very authentic looking Canada Goose vendor on the internet, which promised to deliver genuine Canada Goose jackets for less than a quarter of the retail sale price. Like an idiot, I gave them my credit card number, after which time, my brain decided to turn on, and I opened up the Canada Goose website. I learned to my horror that Canada Goose didn’t allow any online sales, and that I was scammed. So, I wrote about it and exposed the names of the scammers. As late as 2018, my editor told me that it was still one of the most accessed smallbusiness columns at the Globe
As we all know (or should know) by now, scammers are everywhere. I don’t answer the phone anymore unless I recognize the number. Calls from India, China and obscure US states, which I have no connection with, are routinely ignored. If people really want me, they can leave a message or email me. I never open up links in emails unless I know the sender and I’m expecting the email, and I change my passwords regularly. When I want to buy something online, I’m very careful with the vendor to make sure it’s not a scam site. I use social media to share my articles and my exotic world travels, but I am careful what I share.
I have heard reports where someone purports to have kidnapped a family
member and seeks a ransom for their release. But in reality, they have accessed an excerpt of the victim’s voice and used AI and deep fake technology to say whatever the scammers want them to say. Or, instead of a kidnap scenario, the deep fake/AI voice contacts a family member by phone to say they’re in trouble and they need money wired to them immediately. So it’s probably a good idea to have a “safe word” among family members which the AI/deep fake “avatar” will not know, so that you can verify whether or not the call is truly a scam.
A recent report called “Disruptions on the Horizon” prepared by Policy Horizons Canada identified a number of disruptions that could have a significant impact on Canadians in the next decade. The 10 most likely disruptions include an ecosystem collapse, a loss of biodiversity, people cannot afford to live on their own, downward social mobility being the norm, emergency response collapse and artificial intelligence. But at the very top of the list of most likely disruptions are that people are not able to tell what is true and what is not.
is comprised of evil Bond villains, that Clint Eastwood returned all of his Academy Awards as a protest to “Woke Hollywood,” or that Donald Trump’s recent conviction of a criminal offence was a scam, disinformation is not restricted to buying Canada Goose jackets on the internet but has now become a pervasive cancer on civil society where citizens don’t know what is true, so they suspect that everything is untrue. Or, even worse, they believe what is untrue because it is consistent with their political or religious convictions. If it sounds true, it must be true. Some call this “truthiness,” which has been defined as belief “that a particular statement is true based on the intuition or perceptions of some individual or individuals, without regard to evidence, logic, intellectual examination or facts.”
As Carl Sagan said, “One of the saddest lessons of history is this: If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle. We’re no longer interested in finding out the truth. The bamboozle has captured us.”
Misinformation, particularly misinformation that sponsors or promotes conspiracy theories fascinates me to no end. Whether it’s a story that COVID-19 was a hoax, or that the horse dewormer Ivermectin, zinc or bleach was a treatment for COVID, that the World Economic Forum
Tony Wilson, KC is a Vancouver Franchise Lawyer, a Life Bencher of the Law Society, and an Adjunct Professor at TRU Law School. Over the past two decades, he has been a regular columnist for The Globe and Mail, Canadian Lawyer, and other publications. This is his 21st year writing “Nothing Official” for BarTalk, and as everyone should know by now, the opinions expressed in “Nothing Official” are his alone and do not reflect the views of the Law Society, the CBABC, or their respective members.
Gurinder Biring joined Singleton Urquhart Reynolds Vogel LLP, as an associate in their Construction and Infrastructure and Insurance Practice groups.
Aaron Copeland joined Harper Grey LLP as an associate working with their Construction, Environmental, Business and Indigenous Business Law groups. Aaron completed his articles with their firm and was recently called to the B.C. Bar.
Harman Nijjar
joined Harper Grey LLP as an associate working with their Health and Insurance Law groups. Harman completed her articles with their firm and was recently called to the B.C. Bar.
Trevor Roemer joined Harper Grey LLP as an associate working with their Commercial Litigation group. Trevor completed his articles with their firm and was recently called to the B.C. Bar.
Emma Jerrott
joined Harper Grey LLP as an associate working with their Workplace, Insurance and Health Law groups. Emma completed her articles with their firm and was recently called to the B.C. Bar.
Harman Kang joined Clark Wilson as an associate in their Commercial Real Estate Law practice group.
Alexa Benzinger joined Clark Wilson as an associate with their Family Law group.
Emily Davies has been promoted to associate with Clark Wilson’s Estates & Trusts group.
Pamela Connolly has joined Nixon Wenger LLP and has a broad employment law practice and is skilled as a workplace investigator.
Haley Richardson joined Branch MacMaster LLP, practising primarily in the areas of insurance, health and class actions.
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Bryn Hirsch
joined KSW Lawyers as a lawyer in the Family Law group. Bryn has over a decade of experience and has appeared at all levels of court in B.C. and takes a solution orientated approach to his cases.
P. G. Kent
joined KSW Lawyers as counsel in the Criminal Defence group. Mr. Kent has conducted over 100 trials and hearings along with countless appearances in Supreme Court Chambers.
Fiona H. McFarlane
joined KSW Lawyers as an associate in their Employment & Labour Law group. Fiona specializes in workplace investigations and advises on employment contracts, workplace policies and human rights complaints.
Ksenia Orehova
joined Cascadia Legal as an associate. Ksenia is committed to supporting the self-determination of Indigenous communities in Canada and integrating Indigenous traditional legal orders into her work.
Madeleine Keating
articled with Nixon Wenger LLP and has been hired as a Family Law associate.
Jason Z. Murray partner at Eyford Partners LLP, has been appointed as a director of the Vancouver Police Board.
Connor Watt joined Clark Wilson as an associate in their Commercial Real Estate Law practice group.
Anne W. MacKenzie joined Hira Rowan LLP as an associate counsel. Anne is available to act as a mediator and arbitrator on a wide range of legal issues.
Madeline Adam practised general civil litigation before joining Cascadia Legal in July. Madeline has represented clients before administrative tribunals, the Provincial Court, Supreme Court and Court of Appeal of BC.
Daniel Gorelov has been promoted to associate with Clark Wilson’s Family Law group.
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