BarTalk | February 2010

HONOURING EXCELLENCE | OLYMPIC TICKETS | POWER OF THE PEOPLE

F EB RUARY 2010 | www.cba.org/bc

The Court System Versus the Olympics

Page 14

NEWS VOLUNTEER REGISTRY bartalk Senior Editor

Jesse Tarbotton BarTalk Editor

Deborah Carfrae Staff Contributors

CBABC Volunteer Registry & Legal Speakers Bureau

Fran Hodgkins Meghan Kavelman Jineane Payne Jennifer Weber

Editorial Board Chair

Dierk Ullrich Editorial Board Members

Paul Arvisais Katharina Byrne Carol Anne Finch-Noyes Nicole Holas Beverly MacLean Jack Micner Pamela Murray Jennifer Spencer Craig Watson Michael Welsh

The Canadian Bar Association, B.C. Branch, 10th Floor, 845 Cambie Street Vancouver, B.C. V6B 5T3 Tel: 604-687-3404 Toll-free (in B.C.): 1-888-687-3404 bartalk@bccba.org

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at www.cba.org/bc. © Copyright the British Columbia Branch of the Canadian Bar Association 2010.

This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel.

The British Columbia Branch of the Canadian Bar Association represents more than 6,400 B.C. members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

BarTalk Publication Sales Agreement #40741008

n The CBABC Volunteer Registry

connects lawyers who are interested in volunteering their services with charitable organizations and community groups in need of legal expertise. The CBABC also partners with the People’s Law School and other organizations in the B.C. Legal Speakers Bureau.

How does it work?

Charitable organizations and agencies send the CBABC information as to the kind of legal assistance they require. The request is compared to the registry of volunteer lawyers and, if possible, a match is made.

Types of Volunteer Service speak at schools about being a lawyer speak on select legal topics serve as board or committee member provide short-term pro bono legal advice mentor foreign lawyers considering practice in Canada.

To sign up or for more information contact Jineane Payne at the CBABC at membership@bccba.org.

2 BarTalk / FEBRUARY 2010

SECTION NEWS

And the Winners Are? n Approximately 2,831 CBA

members enrolled in Sections before August 14, 2009 and were eligible to win the “Early Bird Sign-Up Bonus Offer” of two gift certificates toward CLEBC products and two complimentary one-day CLEBC courses. And the lucky winners are: Gift certificate of $700 to be used toward any CLEBC product(s) of the winner’s choice: Robert W. Carfra, Johns Southward Glazier Walton & Margetts, Victoria Complimentary registration to a regular, one-day CLEBC course: Geoffrey Plant, QC, Heenan Blaikie LLP, Vancouver Complimentary registration to a regular, one-day CLEBC course: Francesca Marzari, Young, Anderson, Vancouver Gift certificate of $300 to be used toward any CLEBC product(s) of the winner’s choice: Mary Buttery, Fraser Milner Casgrain LLP, Vancouver

Write Us Send your Letters to the Editor to: Jesse Tarbotton BarTalk Senior Editor Canadian Bar Association B.C. Branch Fax: 604-669-9601 Toll-free fax: 1-877-669-9601 Email: jtarbotton@bccba.org Note: BarTalk undertakes every effort to publish letters to the editor, subject to space and editorial discretion.

Letters to the editor can also be found in BarTalk Online at www.cba.org/bc.

FEBRUARY 2010

volume 22 / number 1

Contents

Departments

4

From the President The Power of the People

by James M. Bond

5 Executive Director A New Year, a New Outlook

by Caroline Nevin 6

Nothing Official Olympic Tickets You REALLY Won’t Get

by Tony Wilson

7 On the Web Experience the CBA Advantage

by Patricia Jordan 8

Practice Talk Honouring Excellence

by David J. Bilinsky

9 dave’s tech tips

Sections

10 Section Update

Criminal Justice – Nanaimo Administrative Law

Wills and Trusts – Vancouver

Banking Law 11

SECTION CHAIRS SPOTLIGHT SECTION News

Features & Guest 12 Are You Tired of Lawyer Jokes?

by Ken Walton, QC 13 From the Water to the Bar

Searching for symmetry between competitive

rowing and a career in the law.

Inside This Issue The evidence has been mounting for months; Vancouver will soon play host to the largest event in its history. In keeping with the media’s saturation coverage of all things related to the 2010 Winter Olympics, these pages offer: the final instalment in the Lawyer Olympian Series with Gold Medallist Blair Horn; an examination of what effects the event may have on our court system; a list of interesting Olympic civil liberties facts; and finally, a look at the role of Court of Arbitration for Sport (CAS).

News and Events 2 CBABC Volunteer Registry & Legal Speakers Bureau And the Winners Are? 18 The 2010 CBA Mid-Winter Meeting in Ottawa

Law Week – April 8-17, 2010

Professional Development 19 CBA Says White Collar Crime Covered in Criminal Code

Helping Earthquake Relief Efforts in Haiti 20 Gender Equality in Nepal

CLEBC Update 21 Legislative Update

Branch & Bar Calendar

Two B.C. Candidates Run for CBA National Second Vice-President 22 A Word from Catherine Sas, QC, Chair of the

Work Life Balance Section

Luncheon Seminar

Lawyer Referral Service

Also In This Issue

14 Olympian Trials

by Michael Welsh

2

NEWS

15 Interesting Olympic Civil Liberties Facts

by David Eby

24 Member Services

16 Road to Gold Travels Through SWitzerland

by Nicole Holas

26 Bar Moves & New Members

23 GRANTS APPROVED 25 Classifieds

16 More Than Books – A Legal Research GPS System

by Johanne Blenkin FEBRUARY 2010 / BarTalk 3

From The President James M. Bond

The Power of the People Engaging the Public on Legal Aid.

L

egal Aid is in crisis in this province. The funding model for the Legal Services Society doesn’t work and as a result there is simply not enough money to fund the current system. As a result, there are fewer and fewer lawyers (particularly more experienced lawyers) who are willing to take on legal aid cases. Those that do so in any significant way undoubtedly believe it as the right thing to do, not the financially sound thing to do.

The Legal Services Society has cut service areas, cut staff and in the very near future will close offices everywhere but in Vancouver. There has also been an attempt to shift the form of legal aid delivery from a lawyer model to a “self-help” model. The results of “self-help” are being felt in courtrooms across the province. They are being clogged with unrepresented litigants.

This increase in unrepresented litigants has put more pressure on the time and resources of judges, the courts and any lawyer who is unlucky enough to be appearing opposite an unrepresented person.

I am often asked what the British Columbia Branch is doing about Legal Aid. When I am asked this, I recite the litany of meetings held with the Legal Services Society, with government and with other stakeholders. I discuss the significant work undertaken by our Legal Aid Committee, the assistance provided by our Government Relations Committee and the hours of deliberation that our Executive Committee and Provincial Council have spent on Legal Aid, particularly in the last year or so. I remind them of the time and money spent on the Legal Aid Test Case. I also ask for suggestions as to other actions that we can undertake. However, I can tell you that when I ask for suggestions, I am more often than not met with confused silence.

4 BarTalk / FEBRUARY 2010

It’s not surprising that people don’t have any one single answer to the legal aid crisis.

The Legal Aid issue is complex and multi-faceted and so far justice system stakeholders seem to have been unable to capture and hold the government’s attention on this issue.

Legal Aid is in crisis in this province.

It’s time to get the public involved in a real and meaningful discussion about Legal Aid in our province – what the framework should be, what should be covered, who should deliver it and how it should be funded. Last spring, a group of justice system stakeholders passed a resolution (which was adopted by the British Columbia Branch) calling on the government to hold an inquiry into the state of Legal Aid in British Columbia.

The British Columbia Branch believes that the answer lies in involving the public in the discussion in a meaningful way and we have therefore decided to act to move this issue forward.

We have begun discussions with other justice system stakeholders to establish a Public Forum on Legal Aid in British Columbia.

While it is still in the planning stages, this Public Forum would travel the province and hear from members of the public and others who understand the problems of the current Legal Aid system. It would be funded from non-government sources, but we have invited the government to participate. The British Columbia Branch holds a unique position as a connector of other justice system stakeholders in this province. We look forward to using that position to hear from the public and interested groups and deliver a report to government on the form, content, delivery and funding of Legal Aid in our province. We are confident that once the government has heard from the public on this matter, it will see fit to act on the public’s recommendations.

James M. Bond

president@bccba.org

executive director caroline nevin

A New Year, a New Outlook Looking forward to the future.

F

or the Canadian Bar Association, January to June is a busy period. Not that the September to December is quiet – far from it. But the reality of any professional association is that its members are busy with their own lives in the fall, getting themselves back to work, kids back to academics and client base re-assured and/or rebuilt. Now comes the time when the grooves of life have become a bit more predictable, and attention can focus outward.

So, what’s on the horizon? In addition to the outpouring of financial support to aid organizations working to make a difference in Haiti, CBA immigration lawyers have stepped up to the plate to offer pro bono assistance to people here who want to sponsor family members in Haiti. National CBA President Kevin Carroll has written to the federal government asking them to help expedite that process (see page 19 for further information).

Closer to home, B.C. is awash in Olympic blue, green and white.

Hundreds of CBA members are volunteering at Winter Olympics events and this is an exciting time for all of us as proud hosts.

The CBA office will remain open every day except February 12 (the Opening Ceremonies are a block away!), and we will be available to any lawyer visiting Vancouver who needs a temporary office or a friendly cup of coffee.

The Mid-Winter Meeting of National CBA Council in Ottawa will be an interesting time too, with policy discussions about topics such as the harmonization of pension laws and legal aid.

Speaking of legal aid, watch for this to be a major focal point of our advocacy in the coming year. Many different approaches have been tried by the CBA over many years – from behind-the-scenes diplomacy to a series of Walks for Access to Justice

around the province, service withdrawals, petitions, MLA meetings and court cases all the way up to appeal to the Supreme Court of Canada.

No other organization in the country has done more on the legal aid issue and we will never give up. The key is to ensure that the public has a voice in the future of legal aid and to that end CBABC President James Bond will be talking with the Attorney General, Law Foundation, Law Society and Access to Justice coalition groups, as partners in a new process designed to have the public’s views heard. (See President’s column in this issue.)

On the Professional Development side, CBABC is kicking off its second year as an accredited PD provider, having successfully partnered with Local and County Bar Associations and local law firms to provide quick, accessible and informative professional development – “Smart PD for Smart People.” Our Sections remain one

of the preferred ways that lawyers get their PD hours, through attendance but also as speakers. With 72 Sections and Forums, local PD events and an Annual Conference, and country-wide access to PD in any other Branch, we offer great value with CBA membership.

Lastly, at the Branch administration level, we invested management time throughout December in looking at every aspect of our operation, in order to restructure and re-allocate administrative budgets to better meet our member needs and to ensure the most efficient use of member dollars. Our membership has grown and changed in terms of needs and our role has changed in response. For example, there is need for more support to the PD side of our operation – including Sections – not only because of the introduction of mandatory PD requirements but also because volunteer Section executives are working harder than ever in their professional lives and need extra support in the face of CPD and new technologies such as webinars.

All in all, we expect a busy, productive and rewarding 2010 – and we wish the same for you!

Caroline Nevin

cnevin@bccba.org FEBRUARY 2010 / BarTalk 5

nothingofficial TONY WILSON

Olympic Tickets You REALLY Won’t Get Sports the IOC also rejected.

T

he case of women ski jumpers not getting the chance to compete in the 2010 Winter Olympics was the most public (and indeed the saddest) of the sports the IOC rejected this year. Having had their day in court, I confidently predict that one day soon, they will have their day in the air. But there were other sports that were also rejected by the IOC and won’t be seen in Vancouver or Whistler this month. These are a few of them.

Contact Grand Slalom. As boxing evolved into UFC, Grand Slalom has evolved into a contact sport where seven skiers and four snowboarders leave the gate at the same time; the goal being to get to the finish line first.

And alone. Physical contact between athletes isn’t just permitted, it’s required. The addition of four snowboarders to each race makes the sport a more realistic fracas; accurately reflecting the experience of middle-aged skiers like me on a sunny Saturday afternoon on Vancouver’s local mountains.

Gold is the only medal awarded, because, of course, if there’s a Silver or Bronze, the Gold Medal winner hasn’t done the best job of neutralizing the competition.

Rumoured to be a demonstration sport in Sochi, Russia in 2014.

Men’s Luge Jumping. A twoman Luge traveling at 130 km per hour jumps (Evel Knievel style) over five cars manufactured in the host country. A demonstration sport in Sarajevo in 1984, Luge Jumpers from all over the world broke previous records (instead of their arms and legs) because they jumped over Yugos, a tiny car manufactured in whatever Yugoslavia called itself that year. In Salt Lake City, athletes were required to jump over Hummers, but as the Hummers were so big, and Luge accidents were so rampant, none 6 BarTalk / FEBRUARY 2010

of the athletes successfully completed the course to be awarded any medals at all. The sport was dropped in favour of the more environmentally friendly Motor-Skijöring, which is a variation of dog sledding, except that competitors ski behind a team of six skidoos burning bio-diesel.

Rollerderby Speed Skating. Just as it sounds, Rollerderby Speed Skating is an offshoot of its hardhitting rollerblading cousin, only faster. Much faster. And just like Contact Grand Slalom, no medals are awarded for Silver or Bronze because the idea is to be the last man (or woman) skating.

Very popular in Chile and South Korea, but unheard of since it was dropped for insurance reasons immediately after the Lake Placid Olympics in 1980.

Synchronized Snow Boarding.

This sport, though popular in Sweden and other Skandahüvian countries, was not approved by

the IOC on purely grammatical grounds. Like “Extreme Curling,” the IOC rejected this sport not because it wasn’t athletic or artistic enough, but because it was an oxymoron.

Winter Dressage. Dressage (for those of you who can’t be bothered to look it up) is an “equine sport” where the best riders receive Gold, Silver or Bronze for completing a jumping circuit on a horse.

Winter Dressage is essentially “Dressage in the Snow,” but as a result of pressure from Animal Rights Lawyers at my firm, the medals are, quite rightly, awarded only to the horse.

IOC Baiting. This is a sport where residents of the host city put five car tires together in the shape of the Olympic Logo and see how long it takes the IOC’s lawyers to threaten trademark infringement lawsuits.

My favourite, though, was Olympic Ticket Purchasing. Contestants from all over the world sit in front of their computers for hours and hours (and hours) trying to buy tickets to any Olympic event in the host city. But they fail to get a thing.

I was so good at this sport, I deserve a medal.

Tony Wilson is a Franchise, Trademark and Intellectual Property Lawyer at Boughton in Vancouver. twilson@boughton.ca

ontheweb patricia jordan

Experience the CBA Advantage Your one-stop professional development resource.

I

n a recent Canadian Bar Association (CBA) survey, more than 82 per cent of Canadian lawyers told us that their most important professional needs were “continuing legal education” and “keeping basic legal skills current.” The CBA, on a national and provincial level, is committed to providing substantive Professional Development (PD) programming to members of the profession. The CBA has the programs you need, delivered when and how you need them. Our online webinars, in-person conferences, Section meetings and seminars provide easy access to relevant topics that address your areas of practice.

With the arrival of compulsory PD in British Columbia, it is important to have convenient, cost-effective options that give practical information in a collegial setting. The CBA is an approved education provider sanctioned by The Law Society of British Columbia to deliver accredited PD that meets the mandatory annual requirement.

The British Columbia Branch of the Canadian Bar Association (CBABC) offers its members regional PD programs that feature more than 500 speakers, including academics, distinguished practitioners, experts, government representatives and members of the judiciary. Our programs are developed by practitioners for practitioners. CBABC also offers regional PD seminars in conjunction with Local County and Bar Associations. Section members have online access to archived Section materials, including case comments, legislative updates, minutes, papers and more at cba. org/bc in “Sections” under “Professional Development.”

The CBA’s new PD resource site contains listings for all CBA Branch, National and CCCA PD programs. Whether you are looking for a seminar in your community, a multi-day seminar in a

new city or a webinar to view in your office, the CBA has the program for you. The site also gives you the option of choosing to receive tailored information and updates through a customized profile that you create. It has an easy-to-use search feature where you can search by

The CBA has the programs you need, delivered when and how you need them. date, delivery format, hours of accreditation, keyword, location and subject. Program accreditation information is listed online for each offering, allowing you to select the programs that best meet your PD needs.

The CBA has made it easy for you to track your progress toward your personal goals and mandatory

PD requirements through our online PD Tracking Tool. As a benefit of membership, we automatically record your attendance at Section meetings and other CBA PD events when you sign-in at the meeting or register for a CBA PD event. Simply print off your personalised report for easy reference at reporting time.

Did you know?

With discounts on PD programs and a variety of products and services, CBA membership virtually pays for itself when all the benefits are tallied.

Your CBA membership gives you access to a number of special services designed to suit your practice and lifestyle. Membership in the CBA serves you and your bottom line. See “Membership” at cba.org to learn more.

Site du Jour \\ The CBA Advantage: www.cba.org/pd/cbaAdvantage.aspx

The CBA’s new PD resource site contains unique features to help manage your credits and remain at the forefront of the changing legal education landscape.

Patricia Jordan is the CBABC Web Manager. She welcomes your comments, questions and suggestions.

Tel: 604-646-7861; Email: pjordan@ bccba.org; visit: www.cba.org/bc.

GO ONLINE FOR MORE INFORMATION

FEBRUARY 2010 / BarTalk 7

practicetalk david J. bilinsky

Honouring Excellence Recognition for Achievements by Lawyers and Law Firms.

We are the champions – No time for losers – ‘Cause we are the champions – of the world r – Music and lyrics by Freddie Mercury, recorded and performed by Queen. r

W

hen thinking of the Olympics, an image of a breathless young person comes to mind who is standing on a podium, smiling the smile of a lifetime as someone places a ribbonbound medal around his or her neck. While lawyering may not be an Olympic sport, there are no shortage of awards and recognition that lawyers and law firms may win in the international, national, provincial and community levels, aside from the coveted QC. There is the Gruber Prize for Justice. The Gruber Foundation Justice Prize is presented to individuals or organizations for contributions that have advanced the cause of justice as delivered through the legal system. The award is intended to acknowledge individual efforts, as well as to encourage further advancements in the field and progress toward bringing about a fundamentally just world. In 2003, Madam Justice Rosalie Silberman Abella and Madam Justice Bertha Wilson, both of Canada, were recipients (okay, they are judges but they were lawyers at one point too).

There are the Legal Awards.

Canada fared rather well in these awards in 2009: Best Tax Team, Canada, Borden Ladner Gervais LLP Best Transfer Pricing Team, Canada, PricewaterhouseCoopers LLP Best Banking & Finance Lawyer, Canada, Barry Ryan, McCarthy Tetrault LLP 8 BarTalk / FEBRUARY 2010

Best

Intellectual Property Lawyer, Canada, Douglas N. Deeth, Deeth Williams Wall Best M&A Lawyer, Canada, William M. Ainley, Davies Ward Phillips & Vineberg LLP The College of Law Practice Management awards the InnovAction Awards (www.innovactionaward.com/home.php) for ingenuity in law practice management. Designed to inspire creative thinking in a field known for its over-reliance on precedent, the InnovAction Awards are intended not only to identify effective innovation but also to inspire it through international recognition. Unfortunately, no Canadian firm has ever won an InnovAction award.

There are the Western Canada General Counsel Awards, a spinoff of the highly successful Canadian General Counsel Awards, sponsored by National Post and ZSA Legal Recruitment. Darren Watt of Ritchie Bros. Auctioneers

Inc. was picked as “Tomorrow’s Leader” and William Cottick of B.C. Ferries Service, received a Lifetime Achievement award.

David Allgood, on behalf of the RBC’s General Counsel team, received the Association of Corporate Counsel’s highest honour, the “Excellence in Corporate Practice” award.

The Legal Marketing Association has: the Your Honour awards (in 2009 McMillian LLP, Stikeman Elliott LLP and Bennett Jones LLP were winners), the Hall of Fame Award and our own Vancouver Chapter has the HELM Awards to honour excellence in legal marketing (2008 winners can be found at: www. legalmarketing.org/vancouver/ helm-awards/2008-helm-awards).

The Canadian Law Blog Awards, (“the Clawbies”), highlight great blogs published by the Canadian legal industry. They are to inspire “social endorsements” for those Canadians who invest their time blogging about the law, or the legal industry in general.

Continued on page 9 >>> The views expressed herein are strictly those of the author and may not be shared by the Law Society of B.C.

David J. Bilinsky is the Practice Management Advisor for the LSBC. Email: daveb@lsbc.org Blog: www.thoughtfullaw.com GO ONLINE FOR MORE INFORMATION

dave’s techtips Along with awards for lawyers and law firms, there are awards for legal software.

Law Technology News (LTN), published by American Lawyer Media, has published the 2009 LTN Vendor Awards. These awards are calculated by the number of votes received by readers of LTN, which means that they reflect primarily U.S. firms. Here is a selection of the award winners:

New Product of the Year (Gold) was: Index Engines Unified Discovery Platform This product is aimed at the e-discovery market and is stated to be able to index one terabyte of data an hour. It is able to index proprietary data formats and data on backup tapes, virtual tape libraries, network storage devices, desktops, laptops, hard drives, USB drives and forensic images. (http://www.indexengines.com/ products.htm)

Dictation Systems (Gold) award went to: BigHand for BlackBerry This product allows a lawyer to dictate into a Blackberry (with editing functions) and transmit that dictation back to the office for transcription.

Similar software exists for the iPhone and Windows Mobile devices from Bighhand. (http://tinyurl.com/ye2df2f)

The Gold award for CRM systems went to: InterAction This software allows a firm to see its relationship network.

According to LexisNexis, “Nearly 300 law firms of all sizes, including over 80 per cent of the AmLaw 100 and 30 per cent of the top U.K. firms, choose InterAction from LexisNexis.” (http://tinyurl.com/ye2rjfg)

In terms of Collaboration Tools, the Gold award went to: Workshare Professional 5.2 SR2 This product allows for document review and document control for PDF and Word documents. It also allows Metadata removal and redaction. (http://tinyurl.com/39v2m5)

The Gold award for Document Management Systems went to: Worldox GX This product is the equivalent of the steel filing cabinet, allows for profiling, search and indexing of files in over 270 different formats.

It also supports version control and other functions. (http://tinyurl.com/ybjvp25)

In terms of Litigation Support Software, the Gold award went to: CT Summation iBlaze This electronic discovery tool supports “search and sort” functions along with briefcases, online and offline access and “petrification tools” to preserve data. (http://tinyurl.com/ycaua2t)

One last category: Tabs3 + PracticeMaster This received the Gold award in both Practice Management Systems as well as Time and Billing for small and medium sized firms. We can only hope that these products are adapted to the Canadian market shortly! (http://www.tabs3.com) There are many other categories as well: a full listing can be found at: http://tinyurl.com/ydfl6cq.

Continued from page 8

The Clawbies are intended to be a showcase of Canadian legal blogging and to promote a sense of community. Erik Magraken’s B.C. Injury Law blog (www.icbclaw.

com/blog) (along with your humble scribe’s Thoughtful Legal Management blog) were B.C. winners.

And of course this short summary just scratches the surface of

the legal, business and humanitarian awards that lawyers and law firms can and have received.

Congratulations to all the nominees and the champions of the world alike.

FEBRUARY 2010 / BarTalk 9

sections section update

Criminal Justice Nanaimo

Keep Current A review of Ken Paziuk of Jones & Comu gave an in-depth review provincial Section meetings. of thepanyrecent Supreme Court of Criminal Justice Nanaimo Meeting: December 3, 2009 Speaker: Ken Paziuk, Jones & Company Topic: R. v. Grant – Issues regarding the new test for 24(2)

Administrative Law Meeting: November 18, 2009 Speaker: Stan Lowe, B.C. Police Complaint Commissioner Topic: Overseeing Police in British Columbia

Canada decision of R.v. Grant and the history of the test for 24(2) arguments. He discussed the relationship between Madam Justice McLachlin’s dissent in R. v. Stillman and her decision in R. v. Grant. He further commented on the obiter relating to impaired driving prosecutions and updated us all on the recent decisions that have followed since R. v. Grant. A discussion followed amongst the large group of criminal lawyers regarding the change in the test for admissibility of evidence after Charter violations.

Administrative Law Stan Lowe, the recently ap-

upointed B.C. Police Complaint Wills and Trusts Vancouver Meeting: November 24, 2009 Speaker: Douglas Mathew, Thorsteinssons LLP Topic: A discussion of two recent Tax Court of Canada decisions dealing with trusts: Garron Family Trust v. the Queen, 2009 TCC 450 and Antle v. the Queen, 2009 TCC 465

Banking Law Meeting: November 4, 2009 Speaker: Charles H. McKee, First Canadian Title Company Limited Topic: Gill v. Bucholtz, 2009 BCCA 137 and Title Insurance in British Columbia

10 BarTalk / FEBRUARY 2010

Commissioner, discussed Bill 7, the Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, which amends the police complaint process. Presently, the Office of the Police Complaint Commissioner (“OPCC”) oversees complaints relating to fourteen municipal police agencies. Bill 7 will convert the OPCC’s process of ex post facto review of complaints decided by a “Disciplinary Authority” (usually a Police Chief) into a contemporaneous overseeing process. The OPCC will be able to review investigations as they unfold, provide investigative advice and order that certain investigative steps be taken.

Additionally, the OPCC will decide the admissibility of complaints and whether they should be investigated by internal or external police

departments. It will also have access to two additional avenues of review of a Disciplinary Authority’s decisions. If the OPCC disagrees with a Disciplinary Authority’s finding of “no misconduct” or with its conclusion, the OPCC can refer the matter to a retired judge for decision or for review on the record, respectively. Complainants will have enhanced accessibility, better disclosure, and the right to make submissions. Respondents will also have enhanced rights. It will be mandatory to have an external investigation where a person dies or suffers serious harm while in police custody.

Wills and Trusts Vancouver Douglas Mathew of Thorsteinssons LLP provided a presentation on two recent Tax Court of Canada decisions dealing with trusts: Garron Family Trust v. the Queen, 2009 TCC 450 and Antle v. the Queen, 2009 TCC 465. The Garron case involved a Barbados estate freeze. The Court held that the Barbados trusts were common law residents of Canada. Woods J. held that the “central management and control” test, rather than the residence of the trustee, was applicable to determining the residence of a trust. In Antle, shares with an accrued gain were transferred to a Barbados trust on a rollover basis. The trust sold the shares and claimed that the Barbados Treaty applied as the Trust was a resident of Barbados. Miller J. held that the Trust was invalid on the basis of lack of certainty of intention and subject matter. Despite the fact that there was a signed deed, parole evidence suggested that there was no true intention of the settlor to

u

establish a trust. Also, by the time the trust was signed by the settlor, the alleged trustee had already sold the shares. Both cases are currently under appeal to the Federal Court of Appeal.

Banking Law Charles McKee discussed the

uBCCA decision of Madam

Justice Newbury that concludes the principle of indefeasible title does not apply to interests in land that are less fee simple (for example registered mortgages).

In this case a fraudster forged the signature of the registered owner and transferred the property to his accomplice Gurjeet Gill. She then purported to grant a mortgage to Mr. and Mrs. Bucholtz who relied on title to the lands in advancing the loan. Although section 23(2) of the LTA establishes that indefeasible title is conclusive evidence against all persons, the BCCA concluded that section 23 only deals with title to fee simple belonging to the registered owner and as such it does not extend to lesser interests such as a registered mortgage or other charge holders.

In reaching this conclusion, the BCCA noted that the Legislature of B.C. adopted a policy choice that the cost of fraud perpetrated against mortgagees and other charge holders should be borne by lenders and other charge holders, not the public.

For enrolled CBA members, more detailed information and available minutes from the Section meetings are online at www.cba.org/bc in Sections under Professional Development.

GO ONLINE FOR MORE INFORMATION

Section Chairs Spotlight

Heidi Zetzsche Since 1998 Heidi has been a sole practitioner focusing on family law in 100 Mile House. She currently is Co-Chair of the General Practice, Solo and Small Firm – Cariboo Section which she initiated two years ago and which is based in Williams Lake. She is a Past President of the Cariboo Bar Association and served a threeyear term as an Elected Member of Cariboo County. Prior to her move to the Cariboo she was Chair of the Family Law – Kamloops Section. In Kamloops Heidi articled with the then law firm Jensen Mitchell after receiving her law degree from the University of Western Ontario in 1988 and moving out west in 1990. She and her husband live in a log house on acreage in the Cariboo enjoying the outdoors with their two horses, three cats and two dogs.

SECTION NEWS

New Chapter of the CBABC WLF A resolution was passed at the December 5th Provincial Council meeting to form a Kamloops chapter of the CBABC Women Lawyers Forum. This new CBABC WLF location will provide networking, educational and mentoring opportunities for women lawyers in the area to connect with each other and to promote and support their advancement and success in the legal profession.

FEBRUARY 2010 / BarTalk 11

features KEN WALTON, QC ON LAWYERS DOING GOOD IN THE COMMUNITY

Are You Tired of Lawyer Jokes?

Then tell the story of our profession.

S

ome months ago, I attended a meeting of another Rotary Club in my community. Two lawyers were present.

Each was asked to tell a lawyer joke. I refused, telling the Rotarians that such jokes were offensive. I then asked how many members would be relying on RRSPs for their retirement. Sixty percent of the hands shot up. None knew that prior to November of 2008 their savings pool was subject to creditor seizure. I told them that lawyers, through the work of the British Columbia Branch of the Canadian Bar Association, had protected their nest egg from seizure through recent creditor protection legislation.

A 1997 study found that while lawyers as a whole were held in disrepute, those sentiments did not extend to client’s dealings with their own lawyers, whose virtues were held in a positive light.

It’s time for that positive light to be spread on us all!

Municipal lawyer – and outstanding rower – John Alexander has been with the renowned 13-member Victoria firm of Cox Taylor since 1982.

Cox Taylor is the epitome of a firm that places value on its lawyers being leaders in the profession as well as in the community.

Alan Cox, deceased, was at one time the Treasurer of The Law Society of British Columbia. More than a decade later, the Honourable Mr. Robert Johnston served

12 BarTalk / FEBRUARY 2010

as Treasurer. Lawyer Ted Hanman for years was on the executive of Saanich Minor Hockey, while Frank Carson, QC served as an Alderman in Oak Bay for a total of nine years, over three different terms. Bill Murphy Dyson is the voice of the Oak Bay Tea Party in addition to many other community involvements over the years. A former member, Ray Bryant, was the Mayor of Esquimalt.

John marvels at the indulgence that Rodney Taylor, QC and Alan Cox, QC showed to him as a young lawyer allowing him to embark on service work outside of the profession.

In the years that followed, among many other notable accomplishments, John: was a major force in raising $400,000 to build the Boathouse at Elk Lake; spearheaded construction of the new clubhouse for the Cordova Bay Soccer Club, as well as a field lighting project; became President of the Island Swimming Association.

In 2005, John was awarded the B.C. Master of the Year by Sport B.C., an organization which he was aware of but not involved in. The award was the product of John winning five rowing gold medals at the Edmonton World Masters Games.

Sport B.C. is an umbrella organization that represents British Columbia’s amateur sport-governing bodies, from basketball, hockey, soccer and baseball, to very small organizations like the B.C. Broom Ball Association, B.C. Judo and everything in between.

Sport B.C.’s goal is to promote healthy communities with an emphasis on the role that sports can play. Everyone should be involved, particularly youth.

Sport B.C. requested John’s name be put forward for the 13-member Board. John is now serving his second term as Chair.

John’s journey to this important Board has been typical of the journey that many private practice lawyers take in our province. In John’s words: “Every single Board I have been involved in has relied heavily on people in the community lending their expertise. A big part of that comes down at some time with assistance with legal issues. From my experience in various Boards, I know how important it is for various community associations in our province to have the expertise of volunteer lawyers as a resource. Without this free work, many of these organizations would simply be unable to function.”

The story of Cox Taylor, and John in particular, is an example of what lawyers typically do to make our communities a better place.

I know that most of you have a similar story. Tell it the next time someone mentions a lawyer joke.

I wish you success in your personal and practice life.

John Alexander (pictured above).

Jesse tarbotton INTERVIEWs BLAIR HORN

From the Water to the Bar Searching for symmetry between competitive rowing and a career in the law.

Profile: n Member of the gold medal Men’s eight at the 1984 Summer Olympics n Sport: Eights (Rowing) n Practice Area: Corporate Finance and Mergers and Acquisitions n Current Affiliation: Fasken Martineau Dumolin LLP PHOTO: Front row, left to right: Pat Turner, Kevin Neufeld, Mark Evans Middle row, left to right: Michael Evans, Grant Main, Dean Crawford Back row, left to right: Blair Horn, Paul Steel, Brian McMahon (coxswain)

M

ere days after the distribution of this issue of BarTalk, following a decade of anticipation, Blair Horn will be carrying the Olympic torch on one of its final legs and the 2010 Winter Olympics will be upon us!

This is the final instalment of the Lawyer-Olympian series and it must be recognized that a clear and intriguing trend appears to have emerged: Olympian rowers are finding success as legal professionals. What is it about rowing that seems to set the stage for a successful career in law?

When sitting down to interview Mr. Horn, a member of the 1984 gold medal winning men’s eight team, this question figured

prominently in my mind. For those of you who are keeping track, this publication has already featured Trisha Smith and George Hungerford, QC, both highly successful rowers and lawyers.

Mr. Horn was quick to rationalize when I initially posed the question to him, “this trend may be related to the number of competitors being higher than in other sports.” However, Mr. Horn continued, “I do see parallels between the Olympics and legal practice but I think it’s a parallel that’s drawn between the Olympics and pursuing other goals, whether it’s law, medicine or family.”

“There is an element of hard work, goal setting and working to achieve those goals and that to me flows not just from the Olympics to law but to just about all other aspects of life.”

Mr. Horn also identified the importance of networking and having strong role models to look up to. “There is something about the rowing background that maybe sets you up; a strong fraternity wherein young rowers see older rowers moving on to careers, whether it is medicine, Wall Street or the law.”

“When it comes down to it,” says Mr. Horn, who speaks to groups of young people several times each year about his Olympic experience, “It’s all about setting your goal and believing in yourself, people can accomplish incredible things beyond their dreams if they chase them hard enough.”

It is clear that networking, hard work and goal setting are a recipe for success, both in the boat and at the Bar. FEBRUARY 2010 / BarTalk 13

features MICHAEL WELSH

Olympian Trials The Court System versus the Olympics

M

ost of us consider ourselves relatively untouched by the Olympics. We are not athletes or organizers or volunteers. We may have procured some tickets. Otherwise we will likely catch the highlights on TV. But there is a reason that one definition of “Olympian” is “far beyond what is usual in magnitude or degree” – something B.C.’s court system has discovered after being caught in the far-flung Olympic fallout to a degree that most lawyers, let alone the general public, may not know.

Criminal practitioners are aware that during the Olympics police officers will generally not be available to testify in trials, as they will be involved in Olympic security.

They may not know that sheriffs also have been seconded for Olympic duty. About 100 are being redeployed. The reduced need for sheriffs, due to elimination of criminal trials in February, cancelling of all leaves and rescheduling of any training sessions, are the means to this end.

As a result, judicial case managers around the province have been busy for months filling that criminal court time in February with family and small claims cases. The Chief Judge’s office advises that the Provincial Court system has now successfully filled its rotas.

14 BarTalk / FEBRUARY 2010

It must not have been easy.

Both the Robson Square courthouse and the Smithe Street Law Courts are in the traffic-restricted area of downtown Vancouver and adjacent to the site for the B.C. government public celebrations. Being almost impossible to access, the Robson Square court will essentially shut down. Only emergency family and youth matters (basically bail hearings) will continue. Instead, the 222 Main Street criminal court will reverberate with unfamiliar refrains from family and small claims disputes and some family cases are being moved to New Westminster. Vancouver-based judges who lost out in their bid for Olympics tickets are packing their snowshoes and cross country skis for

sojourns to snowy upcountry registries to assist their local colleagues with backlogs.

On the Supreme Court front, the new Chief Justice has decreed that there will be no criminal jury trials between February 6 and March 1 and no civil jury trials in Vancouver between February 8 and 26. In a rare Olympics bargain, the court has waived hearing fees to reset jury trials caught in the crunch. Judge-alone trials, chambers and registrar’s hearings will

continue for those who can find their way through the Olympic throng.

The Court of Appeal judges must have had more luck in their Olympic ticket hunt as it will be closed for regular court sittings during the weeks of February 8, 15 and 22, with hearings to resume on March 1. Sittings for urgent matters during this period can be scheduled by contacting the court scheduler in writing, setting out the basis for the urgency. Otherwise only chambers will continue.

What we do not know yet is the added cost to our already cashstrapped court system to make these Olympic maneuvers. Let us hope that the Attorney General and Solicitor General keep tabs when they go to cabinet for their next round of budget negotiations.

DAVID EBY

Interesting Olympic Civil Liberties Facts*

*With apologies to Harpers magazine.

1. Current security budget for the 2010 Olympics? $900m CDN 2. Number of private security guards hired by the Olympic Integrated Security Unit, headed by the RCMP (ISU)? 5,000 3. Number of police officers involved in Olympic security operations with the ISU? 7,000 4. Number of Canadian soldiers involved in Olympic security operations? 4,500 5. Position of “protesters” in a ranked list of security threats prepared by the Federal Olympic Secretariat? First 6. Number of now deactivated Medium Range Acoustic Device sonic crowd control weapons purchased without public disclosure by the Vancouver Police Department in time for the Olympics? 1 7. Number of published Canadian safety tests the weapon had been passed through before purchase and implementation? 0 8. Number of policies introduced governing the use of the weapon before purchase and implementation? 0 9. Number of leaflets that municipalities along the torch run should allow politicians to hand out to members of the public, according to the Vancouver Olympic Organizing Committee? 0 10. Number of times the Integrated Security Unit that heads Olympic security (ISU) has

been asked to promise that its undercover officers will not break the law or assume the leadership or influence the direction of anti-Olympic activist organizations? 3 11. Number of times the ISU has made those promises? 0 12. Number of undercover police officers who drove a bus full of activists to a protest launching the Olympic torch run? 1 13. Number of undercover police officers who were passengers on the bus? Unknown 14. Amount of time, in minutes, that American NPR journalist Amy Goodman was detained

by Canadian Border Service Agency agents who interrogated her about whether or not her December, 2009 speech to be given in Vancouver contained anti-Olympic sentiments? 90 15. Number of Olympic references Goodman had intended to make in her speech? 0 16. Number of designated protest zones, called “safe assembly areas,” that will be created by the ISU during the Olympic period? Unknown 17. Minimum number of surveillance cameras to be introduced to Vancouver for the Olympics? 950-970

18. Number of non-celebratory signs eligible for Olympic sign license exemptions according to the City of Vancouver Olympic bylaw and administrative report passed in December? 0 19. Amount of notice, in minutes, required by the provincial Miscellaneous Statutes Amendment Act to be given

by City officials in Whistler, Richmond and Vancouver during the Olympic period before entering private property to remove graffiti? 0 20. Number of anti-Olympic murals removed from the outside wall of the Crying Room, a private art gallery, as a result of the City of Vancouver using its anti-graffiti bylaw powers? 1 21. Number of negative references Cultural Olympiad artists are permitted to make concerning the Vancouver Olympic Organizing Committee, the Olympics, the Olympic movement, Bell and other Olympic sponsors under the terms of the Cultural Olympiad artist agreement? 0 22. Number of lawyers who have volunteered pro bono assistance to the B.C. Civil Liberties Association to respond to rights violations during the Olympic period? 20 23. Number of legal observers trained by the B.C. Civil Liberties Association who will be in the streets of Vancouver and Whistler to monitor rights and freedoms during the Olympics? 400.

David Eby is Executive Director of the B.C. Civil Liberties Association.

FEBRUARY 2010 / BarTalk 15

feature NICOLE HOLAS

Road to Gold Travels Through Switzerland The role of the CAS

W

hen Canadian Beckie Scott headed for Salt Lake City and the 2002 Winter Olympics, she probably had no idea she would have to travel to Switzerland to claim a gold medal. Miss Scott competed in the women’s 5-kilometre pursuit cross-country skiing competition on February 15, 2002. She finished third behind two Russian skiers. Miss Scott was eventually awarded the gold medal in that competition, due to two failed urine tests by the Russian skiers, and a visit to the Court of Arbitration for Sport (CAS).

The CAS is an independent institution based in Lausanne, Switzerland, which facilitates the settlement of sport-related disputes through arbitration or mediation.

The administration and financing of the CAS is facilitated by the International Council of Arbitration for Sport (ICAS).

The idea for the CAS was born out of the need for an independent body to resolve disputes directly or indirectly related to sport. During the 1980s, the number of international sports-related disputes began to rise, but the lack of a tribunal or court with the ability to pass binding decisions left many of these disputes unresolved. Former International Olympic Committee President H.E. Juan Antonio Samaranch had the idea to create a sports-specific juris16 BarTalk / FEBRUARY 2010

diction to provide binding decisions to sports federations and, in 1984, the CAS was created.

A list of arbitrators and mediators is maintained by the CAS and, to date, the list consists of 279 arbitrators and 67 mediators from more than 80 countries. One local lawyer, Mr. Henri C. Alvarez, a partner with Fasken Martineau DuMoulin LLP in Vancouver, is currently an arbitrator with the CAS. The CAS is composed of an Ordinary Arbitration Division and an Appeals Arbitration Division, which hears disputes on an array of subjects – from a ban imposed on a tennis player by the International Tennis Federation due to an allegation of cocaine use to the transfer of a player between top European soccer clubs. The CAS also provides opinions on legal questions related to sport. CAS decisions have the same enforceability as decisions of ordinary courts. The parties to an arbitration can agree on the national law applicable to the dispute. If no agreement can be reached, Swiss law applies. For the appeals procedure, the arbitrators decide on the applicable law.

The CAS also establishes nonpermanent or ad hoc arbitration tribunals for major international sporting competitions. At their second annual meeting in Lausanne on September 29, 2009, the ICAS announced the creation of the arbi-

tration division for the Olympic Winter Games in Vancouver, and the Commonwealth Games in New Delhi. And for all you soccer fans out there, the ICAS is also considering an ad hoc procedure for the FIFA World Cup in South Africa.

The CAS will have a presence in Vancouver at least ten days prior to the start of the Olympics. The rules for the ad hoc division allow for the establishment of a list of arbitrators, a President, and a Court Office. The ICAS will appoint a special list of arbitrators for the ad hoc tribunal for the Winter Games. As

of press time, the list of arbitrators was not published by the ICAS. The CAS rules governing the ad hoc division are thorough and include the formation of a panel of three arbitrators to hear a dispute, the information required in a written application to the Court Office and the procedure before the panel.

The rules instruct the panel to give a ruling within 24 hours of the receipt of an application. Panel hearings are not open to the public.

Hopefully none of the 615 medals awarded during the Winter Olympic Games in Vancouver will require a decision of the CAS, or a trip to Switzerland. www.tas-cas.org GO ONLINE FOR MORE INFORMATION

guest JOHANNE BLENKIN

More Than Books – A Legal Research GPS System

Find Answers with Courthouse Libraries BC

T

he proliferation of web-based tools for legal research such as list serves, websites, and blogs as discussed in the October 2009 BarTalk issue is challenging for lawyers pressed for time. With more options than ever to do research, it’s hard for a busy practitioner to know where to look. At the library, when we ask the profession about what they need to stay current and to find legal information, the overwhelming response is ease of use and the ability to customize tools to meet their unique needs.

With that in mind, we redesigned our website courthouselibrary.ca in 2009. The new site offers more information organized by practice area and a Google-like search tool.

Finding what you need on the website

You don’t need to be a technical whiz to use a GPS and you shouldn’t have to be a librarian to find what you need on the Courthouse Libraries BC website. When you use the new website search tool, think Google. The search tool employs “fuzzy search” technology and a legal synonym thesaurus customized by library staff to connect you to key resources from our website and library catalogue regardless of typos or alternate spellings. Your search results are relevancy-ranked and you can refine, sort and place photocopy

orders or borrow library books directly from your search results – just as you would use Amazon or similar websites. Your online shopping skills will help you find what you need.

you can use courthouselibrary.ca to obtain these materials without having to leave your desk. If you sign up for a website account it is fast and easy to order photocopies or to borrow library books online to be sent to your office.

Librarians can help you find the answers

The self-serve aspect of our new website co-exists with our trained librarians who continue to provide personal service. Here are examples of the types of questions that our reference team answers every day:

Staying up to date: the website and beyond

Courthouselibrary.ca is a good resource for finding answers to specific legal research questions – but it also offers ongoing help with staying up to date in your practice area. The website’s Practice Portals (civil litigation, personal injury, family, wills & estates, practice management & technology) offer selected library resources and links to get you started and news to keep you up to date. The library blogs, The Stream and New & Notable, each have an RSS feed, as do each of the website’s Practice Portals, so you can subscribe and monitor the feeds on your own schedule using your preferred tools – a feed reader like Google Reader for blog aficionados or Microsoft Outlook if you live in your inbox.

Do

Books are still part of the story

you have a precedent for a shareholders agreement?

Has the word “trading” been judicially considered in B.C.?

It’s been a long time since I had to do a personal injury quantum search. What are the current recommended sources?

A GPS helps you navigate the physical world. At the library, in combining a richer website with ongoing personal service, we aim to continue helping the profession navigate the legal information space.

A considerable amount of key legal research material, such as leading texts and precedent documents, remains in print format only. But

Johanne Blenkin is Executive Director of Courthouse Libraries BC. FEBRUARY 2010 / BarTalk 17

news&events Professional Development The Canadian Bar Association (CBA) is committed to providing relevant professional development programming accessible to members of the profession across Canada. The CBA’s new one-stop PD resource site contains unique features to help manage your credits and remain at the forefront of the changing legal education landscape.

Features of the new PD website: Combines listings for all CBA Branch, National, and CCCA events in one convenient location, eliminating the need to search through multiple sites.

Allows you to browse, search

and track your credits for all CBA (Branch, CCCA and National) listings, in one convenient website.

CBA offers accredited programs

NATIONAL NEWS

The 2010 CBA Mid-Winter Meeting in Ottawa n Plan to attend the 2010 CBA

Mid-Winter Meeting of Council in Ottawa, February 12-14, at Ottawa’s historic Fairmont Château Laurier. Council meets on February 13 for resolutions, panel discussions, and a report by the CBA Working Group

negotiating a new Joint Policy Statement on Audit Enquiries with the Canadian Institute of Chartered Accountants.

If you are not a voting member of Council, please check with Caroline Nevin (cnevin@bccba.org) for accreditation.

EVENT REMINDER

Law Week – April 8 to 17, 2010 Law Week 2010 events will be held in communities throughout British Columbia. The Vancouver Law Week Open House will be held on April 17, 2010 at the Vancouver

18 BarTalk / FEBRUARY 2010

Public Library. The Vancouver Fun Run is tentatively scheduled for April 11, 2010.

For more information on \\ Law Week 2010 events visit www.bclawweek.org.

and all accreditation details are conveniently listed online.

Visit: http://www.cba.org/pd/ index.aspx to create a personalised account based on your PD needs!

To view only upcoming CBABC programs, select the “My Province/Territory” tab and then “British Columbia.”

Sign Me Up! Yes, please send me monthly updates on the latest CBABC Professional Development event and seminars.

Name . . . . . . . . . . . . . . . . . . . . . . . . . .

Fax . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Email . . . . . . . . . . . . . . . . . . . . . . . . .

Please complete this form and fax back to: 604-669-9601 Toll free: 1-877-669-9601 Or sign up by emailing your information to pd@bccba.org.

national news

CBA Says White Collar Crime Covered in Criminal Code n The CBA says that Bill C-52,

Criminal Code Amendments (sentencing for fraud), should not be passed into law since legislative tools to address serious whitecollar crime are already in place in the Criminal Code.

“While fraud can certainly be a serious crime with devastating consequences for its victims, based on our experience as both Crown and defence lawyers from all regions of Canada, we believe that Bill C-52 is directed at a problem that does not exist,” said Suzanne Costom of Montreal, member of the CBA’s National Criminal Justice Section. “We believe that Bill C-52 would not

add to the tools already found in the Criminal Code.”

In its five-page letter to the Commons Committee on Justice and Human Rights, the CBA noted that Bill C-52, in calling for mandatory minimum penalties for fraud, would limit judicial discretion to address the individual circumstances of each case.

“Judges routinely factor the amount of a fraud into their determination of an appropriate sentence,” said the CBA in its letter.

“In circumstances where the fraud is clearly in excess of one million dollars, the punishment would undoubtedly be very severe.”

The CBA also suggested the Bill would increase pressures on

an already taxed criminal justice system. The legislation uses vague and overly broad language which is likely to result in more litigation and longer sentencing hearings, especially given the mandatory jail time involved.

Suzanne Costom presented the CBA submission to the Commons Committee on Justice and Human Rights on December 7, 2009. The Bill died on the order paper when Parliament prorogued in December.

CBA submission \\ http://www.cba.org/CBA/submissions/pdf/09-63-eng.pdf GO ONLINE FOR MORE INFORMATION

Message from CBA President, D. KEVIN CARROLL

Helping Earthquake Relief Efforts in Haiti Many CBA members have shared their desire to reach out and help in the wake of the massive earthquake in Haiti. As members of a helping profession, we are ready and willing to offer our assistance and support.

With this in mind, I have written to the Federal Minister of Citizenship, Immigration and Multiculturalism, The Hon. Jason Kenney, asking for his intervention in dealing with this crisis. I have asked him to take immediate steps to expedite the processing of immigration applications for those affected by the earthquake. We are urging the government to complement its humanitarian assistance

with a program to bring Haitians with ties to Canada to our country on a priority basis.

Go to http://www.cba.org/ CBA/News/pdf/haiti_letter.pdf to read the letter to the Minister of Citizenship, Immigration and Multiculturalism.

Members of our national Citizenship and Immigration Law Section have offered their expertise, pro bono, to help review the applications and necessary paperwork for Canadians and permanent residents who wish to sponsor family members living in Haiti. These lawyers’ names, along with a description of how to take advantage of their services, will be posted on the CBA website.

As individuals, we can also choose to make a financial contribution. The federal government will match individual donations to registered Canadian charities aiding relief efforts in Haiti. Our dollars will deliver water, temporary shelter and medical supplies to those who have lost everything.

Our kindness and generosity can and will make a difference.

CBC has a list of organiza\\ tions that you can contribute to, all of which are committed to using your contributions to make a real difference in Haiti: http://www.cbc.ca/haitirelief.

GO ONLINE FOR MORE INFORMATION

FEBRUARY 2010 / BarTalk 19

news&events NATIONAL NEWS

Gender Equality in Nepal

n Before 1960, women were

not permitted to practise law in Nepal. Today, 7.6 per cent of the country’s lawyers are women – a step in the right direction, but there’s still a long way to go. To better understand some of the barriers and challenges faced by women lawyers in that country, the Nepal Bar Association (NBA) UPDATE

CLEBC Update Competition Law Essentials Recent amendments to Canada’s Competition Act make the key concepts essential knowledge for counsel in various practice areas who have not traditionally handled competition issues, including corporate/commercial; franchising, licensing and distribution; marketing and advertising; and criminal. Join CLEBC for Canada’s New Competition & Foreign Investment Law on Thursday, March 18, 2010 and learn which issues should raise red flags in your

20 BarTalk / FEBRUARY 2010

undertook a nationwide survey. The results are contained in a report, Ringing the Equity Bell, The Role of Women Lawyers in Promoting Equality in Nepal, published by the NBA in cooperation with the Canadian Bar Association, which has been supporting improvements to Nepal’s legal system through an ongoing program of assistance.

Based on the input of more than 1,000 respondents, the report concludes that it is essential that women lawyers (and non-lawyers) occupy positions of leadership in government, the judiciary, and the NBA.

practice. Hear discussions of the new merger notification, Investment Canada Act, criminal conspiracy, abuse of dominance and misleading advertising rules, and related new Competition Bureau Enforcement Guidelines.

Learn to handle civil evidence and manage expert evidence Two popular practice-oriented programs in March 2010 promise interactive learning designed to strengthen litigators’ skills. Learn to apply the laws of evidence in trials at Mastering Civil Evidence 2010: A Hands-On Approach on March 26, 2010. Master the details on managing expert evidence in the trial process at Expert Evidence 2010 on March 25, 2010.

“The rights of women can only be truly advanced when women occupy leadership roles in government and are appointed in significant numbers to the judiciary,” says the report. “Much more remains to be done if women are to become equal partners in Nepal’s development.”

More on the CBA’s Internation\\ al Development Program and the CBA’s Nepal Program, plus an article from National Magazine’s Addendum (March 2009). http://www.cba.org/CBA/idp/ interdev/ http://www.cba.org/CBA/idp/programs/nepal.aspx http://www.cba.org/CBA/ newsletters-addendum/2009/ 2009-03_yl.aspx#article7 GO ONLINE FOR MORE INFORMATION

Civil Rules Transition Guide CLEBC’s must-have guidebook on the new rules will include the full text of the Supreme Court Civil Rules annotated by leading practitioner Craig Dennis, an overview of the rules by Donald Brenner, QC, and Tables of Concordance to help ease the transition to the new rules taking effect in July 2010.

Further information on CLEBC publications and courses is available from CLE customer service at 604-893-2121 (toll-free in Canada at 800-663-0437) or at www.cle.bc.ca.

legislative update

Acts In Force Current from October 23, 2009 to December 31, 2009 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclusively at www.cba.org/bc.

BUDGET MEASURES IMPLEMENTATION ACT (NO. 2), 2009, S.B.C. 2009, C. 14 (BILL 2) Sections 21, 24, 26 to 29, 42, 46, 48, 50 and 54 are in force January 1, 2010

DRINKING WATER PROTECTION ACT, S.B.C. 2001, C. 9 (BILL 20) Section 99 insofar as it enacts section 94(1)(b) of the Water Act is in force November 5, 2009

FINANCE STATUTES AMENDMENT ACT, 2009, S.B.C. 2009, C. 15 (BILL 5) Sections 9 to 11 are in force January 1, 2010

FORESTS AND RANGE STATUTES AMENDMENT ACT, 2007, S.B.C. 2007, C. 18 (BILL 18) Sections 9, 11, 12, 13(a), 15, 35, 36 and 66(a) insofar as it enacts section 151(2)(i.1) of the Forest Act and (b) are in force November 27, 2009

GREENHOUSE GAS REDUCTION (CAP AND TRADE) ACT, S.B.C. 2008, C. 32 (BILL 18) Sections 1, 4, 22, 23(2) to (6), 24 to 26, 28, 35 to 39 and 43 to 46 are in force November 25, 2009 For the full list of Acts in Force go online to www.cba.org/bc.

GO ONLINE FOR MORE INFORMATION

branch & bar

Calendar FEBRUARY

8 CBABC PD Seminar: Practice Management Survival Series: Module 4 – Planning for the Unforeseen 9 New Westminster Bar Association Dinner 12-14 CBA Mid-Winter National Meeting 17 CBABC/KBA PD Seminar: New Civil Rules

MARCH 1 CBABC PD Seminar: Practice Management Survival Series: Module 5 – The Four Pillars of Practice Management 6 Provincial Council Meeting 24 CBABC PD Seminar: Conflicts of Interest Toolkit national news

Two B.C. Candidates Run for CBA National Second Vice-President n Two candidates are vying

for the position of Second Vice-President of the CBA for 2010-2011. The candidates are Robert Brun, QC of Vancouver, B.C. and Ken Walton, QC of Victoria, B.C. Once elected, the Second Vice-President goes on to become First VicePresident a year later, and Robert Brun, QC then President of the CBA a Ken Walton, QC year after that.

According to CBA bylaws, only members of Council are eligible to vote. An email containing voting information will be sent to Council members the week of February 8, 2010. Members will cast their ballots online using secure voting technology from February 16 to March 17, 2010. The winners will be announced once the votes are tallied.

More about the candidates: \\ http://www.cba.org/CBA/News/2009_Releases/2ndvp_1011.aspx

GO ONLINE FOR MORE INFORMATION

FEBRUARY 2010 / BarTalk 21

news&events SECTION NEWS

A Word from Catherine Sas, QC, Chair of the Work Life Balance Section

Sue Connaghan of Pushor Mitchell LLP receives the 2nd Annual Work Life Balance award from Wally Oppal, QC in the company of award sponsor Antonio Zivanovic of Corporate Occupational Solutions; Catherine Sas, QC, WLB Section Chair; and Helena Clift, Law Practice Management Section Chair.

What is Work Life Balance?

In my view, work life balance is about working smarter to make sure you never feel like you are giving anything up. When all you know is work, your contribution at work is not as rich, nor is it as valuable. It is not about working less, or getting paid more for working fewer hours. It’s about working more effectively and more efficiently so you never feel like you are sacrificing life for work.

Why do lawyers need it in their practices?

The statistics for the legal profession are grim, to say the least.

Lawyers as a group are twice as likely to commit suicide as the general public.

Lawyers rank highest in major depressive episodes among 104 occupational groups.

70 per cent of all lawyers will have an alcohol problem in their career.

Those are just three of the many statistics that I could offer you about the realities of our profession.

22 BarTalk / FEBRUARY 2010

Couple that with the Law Society’s own statistics in their Annual Report for 2008: Regardless of the gender split, there are 30 per cent fewer lawyers aged 25-30 years practising law in 2008 than there were in 1998.

In the 61-70 year old category, there was a 225 per cent increase in lawyers practising between 1998 and 2008.

Simply put, there are fewer lawyers entering the practice of law and those of us who are here are going to have to shoulder the workload. We are going to have to be smarter about how we handle the demands of practice, the needs of our families and our health and personal needs.

Furthermore, while there are fewer lawyers joining the profession, it is well documented that there are significantly increased numbers of lawyers leaving the profession within the first few years of practice. From a business perspective, if law firms are going to survive, lawyers are going to need to promote work life balance, not just for their firm’s survival, but also for their own personal survival.

What is the Work Life Balance Section?

The Work Life Balance Section is devoted to raising awareness about more efficient ways of practising law within the context of one’s personal goals and ambitions. We feature events on various topics of interest that address as broad a range of issues as possible to inspire, encourage and provide support for lawyers.

SECTION EVENT

Luncheon Seminar Law Practice Management Section / Business of Law Committee Luncheon Seminar Meeting Date and Time: March 18, 2010 (Thursday) at 12:15 p.m.

Qualifies for professional development time as required by the Law Society of B.C. Location: Boardroom of McCarthy Tétrault, LLP (Suite 1300, Pacific Centre, 777 Dunsmuir Street, Vancouver) OR via Internet webinar Topics: (1) HST and your law practice; (2) Fee Billing Practices – a caselaw update and panel discussion of alternative billing methods Cost: $20 for luncheon attendees; free for webinar attendees

Got a client you need to refer?

A case outside your practise area?

A conflict?

Contact the Lawyer Referral Service at 604-687-3221 or 1-800-663-1919.

grantsapproved Continuing Programs, Projects and Awards The Board of Governors of the Law Foundation of B.C. met on November 21, 2009 and approved funding for a number of continuing programs and projects. Chair Mary Mouat is pleased to announce that funding totaling $ 6,938,760 was approved for the following 46 projects.

Funding totaling $6,467,620 was approved for the following 33 continuing programs: $3,599,750 LEGAL SERVICES SOCIETY Operating Grant 2009/2010 $352,120 COMMUNITY LEGAL ASSISTANCE SOCIETY Poverty Law Services $257,180 LAW SOCIETY OF B.C. Professional Legal Training Course

$76,000 JUSTICE EDUCATION SOCIETY OF B.C. Northern Public Legal Education Program for First Nations Communities $75,000 ATIRA WOMEN’S RESOURCE SOCIETY Legal Advocacy Services in the Downtown Eastside $75,000 FORT ST. JOHN WOMEN’S RESOURCE SOCIETY Poverty Law Advocate $75,000 HAIDA GWAII LEGAL PROJECT SOCIETY Legal Education/Advocacy Program $75,000 KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETY Poverty Law Advocacy Program

Law Foundation of British Columbia

$71,000 ABBOTSFORD COMMUNITY SERVICES SOCIETY Poverty Law Advocacy Initiative

$75,000 CHILLIWACK COMMUNITY SERVICES SOCIETY Poverty Law Advocacy Initiative

$70,000 QUESNEL TILLICUM SOCIETY Poverty Law Information Worker

$75,000 CHIMO CRISIS CENTRE SOCIETY Outreach and Advocacy in Richmond

$65,000 SOUTH PEACE COMMUNITY RESOURCES SOCIETY South Peace Legal Advocacy Program UNIVERSITY OF VICTORIA $60,000 – Graduate Scholarships 2010/2011 $58,000 – Entrance and Renewal Scholarships $27,500 – Block Grant 2010/2011 $55,000 UPPER SKEENA COUNSELLING & LEGAL ASSISTANCE SOCIETY Advocacy Program

UNIVERSITY OF BRITISH COLUMBIA $167,000 – First Nations Clinical Program $120,000 – Graduate Fellowships 2010/2011 $58,000 – Undergraduate Scholarships 2010/2011 $27,500 – Projects Grant 2010/2011

$75,000 NANAIMO CITIZEN ADVOCACY ASSOCIATION Legal Advocacy Program

$50,000 MULTIPLE SCLEROSIS SOCIETY, B.C. DIVISION Volunteer Legal Advocacy Program

$75,000 NEWTON ADVOCACY GROUP SOCIETY Poverty Law Advocacy Services

$50,000 SALVATION ARMY BELKIN HOUSE Pro Bono Program

$166,920 GREATER VANCOUVER LAW STUDENTS’ LEGAL ADVICE SOCIETY Law Students’ Legal Advice Program

$75,000 NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETY Legal Advocacy Program

$153,590 B.C. COALITION OF PEOPLE WITH DISABILITIES Advocacy Access Program $93,750 DZE L K’ANT FRIENDSHIP CENTRE SOCIETY Legal Advocacy and Workshops Program $87,810 DOWNTOWN EASTSIDE RESIDENT’ ASSOCIATION DERA Advocacy Service 2010

$75,000 PENTICTON AND AREA WOMEN’S CENTRE Legal Advocacy Program $75,000 POWELL RIVER COMMUNITY SERVICES ASSOCIATION Poverty Law Advocate Program $71,500 LAW SOCIETY OF B.C. CANLII Virtual Law Library

$35,000 PRINCE RUPERT UNEMPLOYED CENTRE SOCIETY Advocacy Initiative DEBATE AND SPEECH ASSOCIATION OF B.C. $20,000 Law Foundation Cup 2010 Funding totaling $500,000 was approved for the following seven grants: $140,000 COMMUNITY LEGAL ASSISTANCE SOCIETY Community Advocate Support Line $75,000 VERNON AND DISTRICT WOMEN’S CENTRE SOCIETY Legal Information and Advocacy Program

$75,000 NORTH SHORE COMMUNITY RESOURCES North Shore Legal Advocacy Project $30,000 TERRACE ANTI-POVERTY GROUP SOCIETY Residential Tenancy Advocate $30,000 PIVOT LEGAL SOCIETY Low Income Housing Tenant Strategic Advocacy Project Funding totaling $48,808 was approved for the following three Legal Research Fund grants: $20,000 B.C. CIVIL LIBERTIES ASSOCIATION Implications under international and domestic law of Canada’s participation in the United Nations Security Council’s 1267 Committee’s regime $10,068 MARGARET ISABLE HALL Legal and Community Response to Domestic Violence Lessons from the “Elder Abuse” Paradigm $18,740 UNIVERSITY OF BRITISH COLUMBIA Expert Evidence: the Admissibility Enquiry

Visit the Law \\ Foundation of B.C. website at www.lawfoundationbc.org.

FEBRUARY 2010 / BarTalk 23

memberservices email: MEMBERS@bccba.org

Every issue of BarTalk highlights regular discounts available to members from a range of national and regional preferred suppliers. Seasonal promotions and special offers to members are promoted weekly via CBABC News & Jobs. Don’t miss any promotion by subscribing to the member services e-bulletin: email members@bccba.org or fill in and fax the sign-up box below to: 1-877-669-9601 (toll-free) • 604-669-9601 (Lower Mainland).

TECH TIP: Member services are available 24/7 via the CBABC website. To access member services on the site, log onto www.cba.org/bc, then choose Member Savings from the drop-down list under Membership.

On the Member Savings page, you will find links to the suppliers highlighted below, plus many more.

Vancouver Canucks

offers CBA members a preferred rate that is 10 to 15 per cent off the corporate rate. TECH TIP: Select Accommodation on the Member Savings page.

Hockey fans, CBABC members receive up to 20 per cent off on selected games through to March 30th. There are only a limited number of tickets left, so be sure to order now. TECH TIP: Select Sports on the Member Savings page.

Alpine Resorts

Starwood Hotels and Resorts Looking for a place to stay, have friends and family visiting, or do you just want to get away from Vancouver during the Olympics?

CBA members can enjoy special rates from Starwood Select hotels and save 10 per cent off the rate of the day at over 900 properties in more than 100 countries. TECH TIP: Select Accommodation on the Member Savings page.

Sign Me Up! Yes, please send me monthly updates on the latest CBABC promotions.

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Please complete this form and fax back to: 604-669-9601 Toll free: 1-877-669-9601 Or sign up by emailing your information to members@bccba.org.

24 BarTalk / FEBRUARY 2010

Coast Hotels and Resorts Another hotel option you can take advantage of is our National Preferred Supplier, Coast Hotels. With 40 locations in Western Canada, Western United States, Alaska and Hawaii, Coast Hotels & Resorts

Want to feel like you are a part of the Olympics? Whistler Blackcomb has 100 per cent of terrain open before and after the Games and 90 per cent open during the Games period. Host resorts have fewer skiers and riders the entire season of the Games, which means more fresh tracks for you. CBABC members receive savings of 20 per cent off lift tickets and 35-50 per cent off rentals. TECH TIP: Select Alpine Resorts on the Member Savings page.

classifiedads email: jtarbotton@bccba.org

BarTalk Gets Results The Firm has an opening for a barrister to join our practice. The barrister should have two to six years of practice experience, have an excellent academic background and preferably have some experience in civil litigation. We welcome applications from lawyers wishing to work in a stimulating and high-end litigation practice. Interested lawyers should send their c.v. and transcript of their grades to K. Michael Stephens, at Suite 2100-1040 West Georgia Street, Vancouver, B.C., V6E 4H1.

display Ad RATES

insert (all of B.C.)

Full Back Page $5,000

CBABC Members/Firms $1,250

FULL INTERIOR PAGE Commercial Organizations $3,500 $2,500 1/3 INTERIOR Page $1,600

Next deadline: March 12 Next mailing: April 5

1/6 INTERIOR Page $1,000

Direct BarTalk advertising inquiries to:

CBABC Members/Firms

Jesse Tarbotton BarTalk Senior Editor Email: jtarbotton@bccba.org Tel: 604-646-7856 or 1-888-687-3404

50 per cent off above rates

Next deadline: March 6

’

LEGAL OPPORTUNITIES Family Lawyer & Junior Associates Johns Southward Glazier Walton & Margetts is a full-service law firm, on southern Vancouver Island with offices in Victoria, Duncan & Langford. We have opportunities for lawyers practicing in the following areas of specialty.

Johns Southward has a well established reputation in family law, and is seeking an experienced family law lawyer to lead its family law section. It is expected that the successful applicant will be familiar with all aspects of family law litigation, collaboration and mediation, will be able to work well with our associates, and in conjunction with our satellite offices. The lawyer’s experience will be a significant factor in any application – but no pre-determined levels respecting length of practice are being set as criteria.

This is a unique career opportunity for a motivated lawyer, arising from an unexpected illness suffered by one of our firm’s partners.

Johns Southward is also seeking experienced and motivated junior associates. Successful applicants will bring with them the will to work in a disciplined and organized professional setting. A practice base is an asset, but not essential.

Lawyers

wwww.jsg.bc.ca

Each of these positions offers a wonderful opportunity for a lawyer looking to move to Southern Vancouver Island for its lifestyle and temperate climate, but who wishes to maintain a focused and high level of professional expertise in their chosen field of practice.

All replies should be directed to Richard Margetts QC, at rmargetts@jsg.bc.ca, and will be treated in confidence.

FEBRUARY 2010 / BarTalk 25

barmoves Who’s Moving Where Brent Atkinson

Amyn Lalji

has joined the LTSA Board of Directors nominated by the Society of Notaries Public of B.C. (SNPBC). Mr. Atkinson has been a Notary Public since 1974.

has joined Miller Thomson LLP’s Vancouver Office as a partner.

Amyn’s practice focuses on aboriginal and corporate law.

He has extensive knowledge and experience representing First Nations.

Geeta Bains

Natasha Allen

departs Dunnaway, Jackson, Ouellet and joins Nordel Law Group LLP as an associate.

Ms. Bains will be practising in the areas of family law and civil litigation.

has joined Miller Thomson LLP’s Vancouver office as an associate. Prior to joining the firm, Natasha clerked at the Tax Court of Canada, was a manager in the Tax Group at Deloitte & Touche, and worked in the tax practice of another national law firm.

Jason Murray

Stephanie Daniels

has joined Klein Lyons as an associate practicing class action litigation.

has joined Farris, Vaughan, Wills & Murphy LLP Vancouver office as an associate. Stephanie joins Farris’ Tax Group, with a practice focused on wealth management and individual and business succession planning.

David Gillanders, QC,

Sandra Li-Seller

one of Canada’s leading real estate lawyers, has joined Farris, Vaughan, Wills & Murphy LLP as associate counsel.

was called to the B.C. Bar in September 2009 and has joined Pryke Lambert Leathley Russell LLP as an associate. She practises in the areas of insurance and commercial litigation.

26 BarTalk / FEBRUARY 2010

newmembers bar moves submissions (max 35 words) to CBA@bccba.org FOR MORE BAR MOVES GO TO BARTALK ONLINE

Andrew Aguilar has joined Lang Michener LLP’s Litigation Group as an associate lawyer.

November & December 2009 Regular Members

Thomas Deczky

Borden Ladner Gervais LLP Vancouver

Ian T. Gove

Guild Yule LLP Vancouver

Leah Deforrest

Mayland McKimm & Associates Victoria

Erin M. Hobday

Dept. of Justice Canada Vancouver

Leslie Gibson

Nathan C. Lampard

Gaurav Parmar is now a partner with Heather Sadler Jenkins LLP, “Northern British Columbia’s Law Firm” (www.hsjlawyers.com). Gaurav was called to the British Columbia Bar in August 2004.

Jawl & Bundon Victoria

Farris, Vaughan, Wills & Murphy LLP Vancouver

Edith Lau

Matthew Howard

MacIsaac & Company Victoria

Lawson Lundell LLP Vancouver

Kwang Lim

Farris, Vaughan, Wills & Murphy LLP Vancouver James A. Manson

has recently been called to the B.C. Bar and has joined Pryke Lambert Leathley Russell LLP as an associate. He practises in the areas of corporate and commercial law and real estate law.

Thierry Keable has joined as an associate in the Solicitors practice group at Farris, Vaughan, Wills & Murphy LLP. Thierry’s practice focuses on all aspects of corporate law with an emphasis on corporate finance, business acquisitions and divestitures.

Thorsteinssons LLP Vancouver Magda Kwasniewska Jaclyn Leong

Theall Group LLP Toronto

Farris, Vaughan, Wills & Murphy LLP Vancouver

Paule Pépin-Huneault

Judd Lambert

Justin M. Howell

Canpages Inc. Burnaby

Jeffrey Martin

Pushor Mitchell LLP Kelowna

Paul Silvey

Peter Grant & Associates Vancouver

Jocelyne Mui

Retired Member

Dinning Hunter Lambert & Jackson Victoria

Sandra Garossino

Leisha Murphy

Vancouver

Articling Students

Farris, Vaughan, Wills & Murphy LLP Vancouver

Harinder Bains

Kevin Nakanishi

Lang Michener LLP Vancouver

Fasken Martineau DuMoulin LLP Vancouver

Micah Carmody Maxwell Carroll

Lawson Lundell LLP Vancouver Mark Danielson

Pushor Mitchell LLP Kelowna

To view all new \\

members please visit

www.cba.org/bc/ bartalk_06_10/02_10/ membership.aspx GO ONLINE FOR MORE INFO

FEBRUARY 2010 / BarTalk 27