BarTalk | February 2011 by The Canadian Bar Association, BC Branch

ACCESS TO JUSTICE | PRO BONO IN B.C. | TRU | B.C. LAWYERS ABROAD

F EB RUARY 2011 | www.cba.org/bc

Students Experience B.C. Through the REAL Initiative PAGE 14

NEWS BARTALK EDITOR

Deborah Carfrae

EDITORIAL BOARD CHAIR

Cover photo: Ryan Phillips at Cathedral Grove in MacMillan Provincial Park in July. Ryan is currently a third year student at the University of Saskatchewan. Last year he summered in Campbell River with the firm of Tees Kiddle Spencer and he will be returning there for his articles.

Michael Welsh EDITORIAL BOARD MEMBERS

Candice Alderson Paul Arvisais Carol Anne Finch-Noyes Sandra Harper Nicole Holas Beverly MacLean Gail McKay Rose Shawlee Mark Slay Greg Stacey

FEATURE

Adventurous REAL Student

BARTALK SENIOR EDITOR

Joanne R. Silver STAFF CONTRIBUTORS

Bianca Bishop Judy Cave Trisha Jewison Jineane Payne Jennifer Weber The B.C. Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. 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 2011. 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 6,500 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.

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NATIONAL NEWS – MEETING

CBA 2011 Mid-WInter Meeting MEET. DEBATE. VOTE.

n There’s still time to register for

the CBA Mid-Winter Meeting of Council, February 18-20, 2011, at the Fairmont Le Manoir Richelieu in Charlevoix, Quebec. If you’re not a member of Council, contact CBABC Executive Director Caroline Nevin for accreditation. For details and registration, \\ visit www.cba.org/charlevoix2011.

Above photo: Julian Tryczynski in South Tweedsmuir Provincial Park, near Bella Coola. Julian is currently a third year student at the University of British Columbia. Last year he summered in Williams Lake with the firm of Vanderburgh & Company. To read more about the CBABC REAL (Rural Education and Access to Lawyers) Initiative go to page 14.

Write Us Send your Letters to the Editor to: Deborah Carfrae BarTalk Editor The B.C. Branch of the Canadian Bar Association Fax: 604-669-9601 Toll-free fax: 1-877-669-9601 Email: bartalk@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 2011

VOLUME 23 / NUMBER 1

Contents

Departments

FROM THE PRESIDENT Access to Justice by Stephen McPhee

EXECUTIVE DIRECTOR The Greying of the Profession by Caroline Nevin

NOTHING OFFICIAL What’s in a Law Firm Name? by Tony Wilson

ON THE WEB Flash, Session and Text Cookies by Patricia Jordan

PRACTICE TALK A Crisis of Abundance by David J. Bilinsky

DAVE’S TECH TIPS

Sections

SECTION UPDATE Legal Research ADR – Vancouver / Family Law – Vancouver Air Law CBABC Women Lawyers Forum – Kamloops

SECTION CHAIR SPOTLIGHT Eric Gottardi

Features 12 THOMPSON RIVERS UNIVERSITY LAW SCHOOL by Gail McKay 13 THE NEW PROPOSED FAMILY LAW ACT by Cristen Gleeson 14 ENSURING ACCESS TO JUSTICE by Michael Litchfield

Inside This Issue This issue is on the best of B.C., especially in the “rest of B.C.” outside the Lower Mainland, which contrary to some points of view is not simply “beyond Hope.” We look at the development, goals and effect of the new TRU law school and learn of a distinguished TRU alumnus. We focus on a CBABC initiative, the Rural Education and Access to Lawyers initiative (REAL) and other steps to increase access to justice throughout B.C., including growth of pro bono clinics and the Public Commission on Legal Aid. We also go abroad with a CBA initiative in east Africa to strengthen access to justice.

News and Events 2 CBA 2011 Mid-WInter Meeting 18 Immensely Successful 3rd Annual GREATdebate Lorianna Bennett Honoured with TRU’s 2010 Distinguished Alumni Award for Community Service 19 Your Questions Answered on Privilege and Confidentiality Call for Nominations Grant Wong named by Lexpert as one of Canada’s leading lawyers under 40 20 Bill C-49 Denies Rights of Refugee Claimants Changes to Bill C-470 Welcomed Law Students’ Legal Advice Program (LSLAP) – Call for Volunteers 21 Legislative Update Branch & Bar Calendar Two candidates for National Second Vice-President Law Week – April 7 to 16, 2011 22 Health & Wellness TIP CBABC Women Lawyers Forum Honours Outstanding Women Lawyers CLEBC Update 25 Mediation TIP

Also In This Issue

15 B.C. LAWYERS ABROAD by Allan Parker, QC and Mark Benton, QC

16 BUSINESS LAW IS MOVING BEYOND VANCOUVER by Jim Mutter

24 PROFESSIONAL DEVELOPMENT &

17 THE RELUCTANT PATH TO UBIQUITY by Jamie Maclaren

25 DISPLAY ADS

27 NEW MEMBERS

23 LAW FOUNDATION OF BRITISH COLUMBIA MEMBER SERVICES 26 BAR MOVES

FEBRUARY 2011 / BARTALK 3

FROM THE PRESIDENT STEPHEN MCPHEE

Access to Justice Taking up the challenge. “Whatever course you decide upon, there is always someone to tell you that you are wrong. There are always difficulties arising, which tempt you to believe that your critics are right. To map out a course of action and follow it to an end requires courage.” – Ralph Waldo Emerson

t the CBABC Conference in Scottsdale in November 2010, The Honourable Chief Justice Finch was the keynote speaker at the final dinner. He is a very good speaker, and has developed comic timing and a use of humour that is always the envy of everyone in the room. However, after a light roasting of minor legal celebrities – absent and present – The Honourable Chief Justice Finch got serious. His remarks are available on the Court of Appeal website and I encourage everyone to read them. They are a challenge – a challenge to all lawyers to have the courage to take a long, hard look at our responsibilities to our justice system and access to justice in particular. They say “timing is everything,” and the timing of the remarks is prescient. The Public Commission on Legal Aid is underway and we should see a report early in 2011. This past fall, we had to consider the requests of the Notaries Society to expand notaries’ services. There are well-documented delays in Provincial Court hearings because of a shortage of Provincial Court judges. This January, lawyers in Abbotsford and Chilliwack are withholding criminal duty counsel services to protest chronic underfunding of the criminal justice system. We are also familiarizing ourselves with new rules in Supreme Court – rules that were specifically introduced to make access to that court easier and cheaper. 4 BARTALK / FEBRUARY 2011

We heard recently that the request by the Notaries Society has been deferred for consideration until 2012. I believe the successful lobbying work of our members as well as our clear cogent submissions played no small part in the government’s decision to take more time to consider the impact of the proposals and consider the CBABC submission that such a request should be part of an overall assessment of access to justice issues. Some have remarked that this must all be a heavy burden for me in the first three months of office. I will not deny that it has been very time consuming, but I must add that it has been rewarding and a real privilege to represent our members on these important issues. I do not expect the demands to slow down in 2011. CBABC has a leadership role to play in addressing the challenges that face our justice system and access to justice in a comprehensive way. Not with

“more meetings” that allow the participants to feel good about the time and thought they contribute, but that do not result in change or action, but with a meaningful, practical strategy that includes all justice system stakeholders. I have already had conversations with some of the key justice system stakeholders and believe all stakeholders – the judiciary, lawyers, LSBC, our CBABC, TLABC, the Ministry of the Attorney General, paralegals, notaries, community advocates, law enforcement, Crown Counsel, Legal Services Society, and other groups such as those in the Coalition for Public Legal Services need to be involved. This is not an exclusive or exhaustive list. The Honourable Chief Justice Finch has laid down a challenge to our profession. We accept it, and challenge others to join us and examine their own roles and how they can influence, change and shape our justice system. Together we can map out a course of action and follow it; overcome the difficulties and demonstrate the courage to silence the critics. I look forward to your continuing support and commitment to these endeavours in 2011.

Stephen McPhee

president@bccba.org

EXECUTIVE DIRECTOR CAROLINE NEVIN

The Greying of the Profession Professional responsibility and aging of the Bar.

f you practice in a larger firm, you may well notice a bit more grey hair at the table and some turnover among your firm’s leadership. However, if you practice in Vancouver, the lawyers you work with, both as colleagues and opposing counsel, are likely younger on average than in the rest of the province. In fact, the volume of young lawyers you see and hire may actually camouflage what’s really going on: fewer young lawyers are staying in practice and are seeking to become the equity partners of tomorrow. That may well impact your long-term financial planning, and you should spend some time thinking about how you and your firm will strategize in response. In smaller firms and communities around the province, the reality of an aging Bar is even more stark. The average age of lawyers everywhere is rising as the Baby Boomer bulge hits their 60’s and 70’s – and this is the age group most likely operating in rural and small town community legal practices. With increased student loan debts, younger lawyers are drawn to urban practices on the (perhaps mistaken) premise that they will have more disposable income to pay off their loan more quickly. More and more senior lawyers I talk to have deferred full retirement not because of devalued savings, but because there is noone to take their place in serving their clients and community. Among people aged 65 and older, the Alzheimer’s Society predicts one out of 11 has Alzheimer’s to one degree or another – and the risk doubles every five years after 65. That’s only one type of impairment; there is an increased risk of many other debilitating and fatal illnesses that manifest anytime after age 50. This points to a significant responsibility of all of us committed to ensuring self-regulation of lawyers. Protection of the public

interest means that we must, as a profession, ensure competent, uninterrupted service to clients regardless of what is going on with any one particular lawyer. This is as true in the biggest law firm as it is in small town B.C. The concept of “practitioner impairment” is a touchy one, especially within a profession that traditionally honours the skills and experience of its senior members. And yet, there is a need to ensure adequate supports, alarm systems and interventions when you notice that an impairment in yourself or a colleague is affecting service to clients or the administration of justice. And you have an important professional responsibility to ensure that you have a “succession” or “practice continuance” plan in case you or your law partner become unable to serve clients for a period of time, or leave unexpectedly due to sudden illness or death.

This is particularly important for solo and small firm practitioners, who make up 45 per cent of the practicing Bar. This same segment generates almost twice as many complaints to the Law Society as compared to their colleagues who practice with three or more lawyers. Succession and continuance planning is essential for every practitioner, but it is absolutely critical in practices with no or few colleagues upon whom to rely in a crisis. Building on some great resources developed by the Law Society of British Columbia (see www.lawsociety.bc.org under Practice Resources) CBA is preparing a number of Professional Development opportunities to help ensure that lawyers throughout the province get the chance to discuss these important issues. We are committed to helping you gain the tools you need to prepare and protect your own practice to survive everything from a “time out” to deal with a treatable health issue, to a catastrophic interruption in service to your clients. We welcome your input as we develop these and other innovative PD programs.

Caroline Nevin

cnevin@bccba.org FEBRUARY 2011 / BARTALK 5

nothingofficial TONY WILSON

What’s in a Law Firm Name? How about watching Mad Men for some inspiration?

egular readers of this column might recall a piece I did a few years ago called “Law Firm Names in the Age of Google,” where I bragged about being a part-time branding guru and suggested naming law firms after celebrities just for the increased Google hits from people looking for jailed, rehabilitating or misbehaving starlets. Instead of finding Britney Spears, Paris Hilton or Lindsay Lohan, they’d find your newly branded law firm instead. You could place targeted ads on the right hand column of your web page, and increase your firm’s bottom line. Or if you were lucky enough to have Fiona Apple and Peter Macintosh as partners, you could rename your firm after a popular product, and neither the (surviving) Beatles nor Steve Jobs could stop you from naming your firm “Apple Macintosh.” Unfortunately, law firms aren’t taking my branding advice. Lang Michener had a good chance when they merged with Toronto’s McMillan Binch in January. If they’d all been drinking with the TV tuned to “Mad Men” the night they came up with the “new” brand, they might have called themselves “Macallan” and gone head to head with the Single Malt Scotch people for misdirected Google hits and the resulting confusion. Having your law firm confused with a marquee Scotch is preferable to having it confused with a clothing line, like “Bench,” which may explain why they didn’t go with the second name, “Binch.” Alas, they chose McMillan, which is neither a Scotch nor a celebrity. However, I’m told Lang Michener may forever be known as McMichner, which is catchy among some of its Vancouver lawyers because it annoys the hell out of Toronto. It’s always a good thing to annoy the hell out of Toronto. I encourage it. Fortunately, it’s not too late to 6 BARTALK / FEBRUARY 2011

put the definite article “The” in front of McMillan and pretend it’s a Scotch and a law firm. The McMillan. Catchy and kitschy. I always liked “Ogilvie Renault” because it sounded like a famous French car manufacturer and “Ovaltine.” But that firm will become “Norton Rose” in June and even though it has offices all over the world, all I can think of is some ship built by Henry XVIII in the 16th century. (May God Bless the Norton Rose, and all who may sail in her.) There’s a trend away from two and three name firms to one-name firms. Boughton, Goodmans, McMillian (McMichner?), Gowlings and Torys all used to be multinamed firms who dropped all the other names from their masthead. Blake Cassels and Graydon, Osler, Hoskin & Harcourt, Stikeman Elliott and Fasken Martineau are colloquially called Blakes, Oslers, Stikemans and Faskens respectively, but

I predict it’s just a matter of time before the poor sods in the second and third spots are voted off the island in the name of branding, leaving only one name; the first one. To the disappointment of all, I cannot see this ever happening to Bull Housser and Tupper. Ever. I was consulted on a new name for a law firm in 2010, and was forced to think outside the box. I considered all those firms like Legacy, Catalyst and Quorum, which tossed out the whole idea that a law firm should be named after three dead white men. So I came up with names that inspired confidence and trust; boldness and courage. I came up with Reliant. Enterprise. Intrepid. Destiny. The fact that I was doing this while watching Star Trek one night and my choices were the names of Starships, cars and car rental companies proved a universal truth: The best ideas don’t always come in the shower, but the worst ones will always come while watching The Space Channel. You’ll get better ideas from watching Mad Men. With drinks, of course. Martinis. Manhattans. By the way, I act for a law firm looking for people with the last names Smirnoff, Guinness, Obama, Porsche and Mercedes. The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the CBABC or its members.

ontheweb PATRICIA JORDAN

Flash, Session and Text Cookies Are they safe?

embers frequently ask if the Canadian Bar Association (CBA) uses cookies on its websites. The CBA uses session cookies to record session information such as your surname and CBA membership ID number when you log in to access a member-only area. Session cookies are temporary bits of information that are erased once you exit your web browser or turn your computer off. While most Internet browsers are initially set to accept cookies, you can change the settings to refuse cookies or alert you when cookies are being sent. Rejecting cookies on some websites can make those sites unusable. A cookie is a piece of text stored by a computer’s web browser. It can be used for authentication, as an identifier for a server-based session and to store shopping cart contents and site preferences. Cookies can be encrypted for information privacy and data security purposes and may be set with or without an expiration date. CBA websites also use text cookies that are set with an expiration date. As text, cookies are not executable and do not replicate. Although cookies do not yet contain viruses, they can be used as spyware. Anti-spyware products provide warnings about cookies that can be used to track computer activity. Third-party cookies are sent from a vendor’s site instead of the website being browsed. Thirdparty cookies can track visitors as they visit multiple domains within a website and across different websites. This functionality provides an analytics vendor with the ability to collate the individual’s activity on sites where they provided personal information with their activity on other sites where they thought they were anonymous. Most people block third-party cookies due to privacy concerns. Many companies

that supply banner ads use third-party cookies to track site visitors. DID YOU KNOW?

The price of your flight or hotel room can increase because of a cookie on your computer. The increase in price could be due to the cookie that was placed on your computer when you first visited a company’s website. Commercial sites use cookies to identify users and prepare customized web pages. When accessing a site that uses cookies, you may be asked to provide information such as your name and interests. This information is packaged into a cookie and is sent to your computer where it is stored for later use. Upon your next visit to the site, this information is accessed and used to present you with customized web pages and, perhaps, a higher price for a flight or hotel room. Before you book a hotel room or purchase an airline ticket online, erase the cookies from your computer if you have previously visited the site.

Adobe Flash Player uses Flash cookies that contain cookie-like data that is stored as a file on a computer. The default settings in Adobe Flash Player do not seek permission to store these cookies. Flash cookies store more information than traditional cookies and are not deleted by cookie privacy controls in a web browser and are stored in a separate directory that can be difficult to locate. Search for .sol on your computer’s hard drive to find the location of these files. Flash cookies can also be used to reinstate traditional cookies that have been deleted. This practice is referred to as re-spawning. Many commercial sites use Flash cookies for tracking purposes and to store information that is used for behavioural-targeted advertising. Each time you search for a product or service, visit a website or click on a banner ad or “paid search” keyword that activity is logged in a cookie that can be analyzed for later use by an advertiser to deliver targeted ads. Read more about Flash cookies in BarTalk Online at www.cba.org/BC/ bartalk_11_15/02_11/web_column.aspx. 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 2011 / BARTALK 7

practicetalk DAVID J. BILINSKY

A Crisis of Abundance New Canadian study finds 2/3 of adults are overweight. It would sure do me good, to do you good Let me help ... r – Music, Lyrics and recorded by Billy Swan

he Canadian Health Measures Survey, the most comprehensive survey ever conducted in Canada (http://bit. ly/6WV8WC) has recently found: “That fitness levels of children and youth have declined significantly since 1981, regardless of age or sex. Fitness levels of adults have also declined, particularly among younger adults.”

A prominent Canadian researcher on obesity has stated that the figures in the CHMS study point to a country in crisis: “Well, if you look at those numbers I’d be very surprised to see what actually qualifies as a national crisis if this does not,” said Dr. Arya Sharma, Chair of Obesity Studies at the University of Alberta and scientific director of the Canadian Obesity Network. Further, the Canadian Press, reporting on this survey, stated: “The survey suggests the proportion of Canadians with dangerously large waists went to 21 per cent from five per cent among men, and to 31 per cent from six per cent among women.” While it is a common point of pride among Canadians that we are fitter (and less obese) than our American neighbours, the CHMS study has placed a large dent in that myth: “The average BMI [Body Mass Index] for Canadian children was similar to that of children in the United States.” So the question is, what does all this have to do with practice management? Napoleon Hill

8 BARTALK / FEBRUARY 2011

once said: “It is literally true that you can succeed best and quickest by helping others to succeed.” If we have a crisis of fitness, particularly among our children, then the greatest gift we can give to our children is not a trust and large inheritance, but rather the life skills of fitness and health. This is the start of the New Year (at least when this column was written) and a time to set and follow through on resolutions. We can take our kids out for ski days (downhill and cross-country) together, go out to the pool and do lengths, head out the door and go for a walk, play hoops together, go for runs together and much more. The education system in B.C. has a relatively new initiative: “Daily Physical Activity” (DPA) among children. This initiative needs reinforcement from parents. After all, we all know the lessons of the maxim: “Children Learn What They Live.”

In an article: “Show, Don’t Tell! Five Ways to Help Your Kid Get Fit,” it is stated: “The objective: to show kids how much fun fitness can be. You can – and should – take the same approach at home. ‘Making sure your kids enjoy being active is the key to keeping them healthy for life,’ says FitSchools adviser Jim Liston, C.S.C.S. ‘But you may have to do the opposite of your first instinct.’ How so? See for yourself by following Liston’s five new rules of kids’ fitness.” What are the five new rules? 1. Don’t compare your kids with others 2. Never reward kids with food 3. Know when to praise 4. Instruct by showing, not telling 5. Remember to keep play fun (you can read more at: http:// on.msnbc.com/hG0Jv) The leadership that we show daily in our practices and among our clients also needs to be Continued on page 9 >>> The views expressed herein are strictly those of the author and may not be shared by the Law Society of British Columbia.

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

dave’s techtips Turn a Smart Phone or iPad Into a Credit Card Point-Of-Sale Terminal Square (www.squareup.com) is a revolutionary service and device that turns a smart phone or iPad into a credit card point-of-sale terminal. Imagine being able to take credit card payments – anywhere, anytime – such as at the courthouse, at the client’s home, at the client’s office etc. Launched by Twitter (www.twitter.com) founder Jack Dorsey and Jim McKelvey, this little device stands to change how lawyers get paid. Currently, there is no contract, no rental cost, no extra equipment aside from the

reader (pictured below) and the associated software, no monthly “fees” or merchant account required. Receipts are sent electronically. The fees? 2.75 per cent + $0.15 to swipe a card; 3.5 per cent + $0.15 if you have to keyin the card. The reader is free. Contrast this with existing merchant account contracts where you have to pay a monthly cost for the card

reader equipment, enter into a contract and incur setup fees as well as possibly face monthly minimum usage requirements (and pay a penalty fee if you don’t meet the minimum usage amount). There may be other fees and charges levied based on the type of credit card being processed as well as “customer service fees” and such. Square even provides management reports that track your top clients, taxes, payments by location and more. All transactions are stated to meet all standard industry security practices detailed at https://squareup. com/security. There is only one tiny problem with Square – it is only available in the USA (as per their (https://squareup. com/tos) Terms of Service. So unfortunately – for now – Canadian lawyers can’t be hip to be square – unlike our American cousins.

Continued from page 8

demonstrated to our children, and not just by putting in endless hours at our desks.

Being the best in B.C. has many facets and meanings. Doing good for others and in the process, doing

“good” for ourselves, is rewarding. Besides, “Best Dad or Best Mom” sounds like a pretty good title to me. FEBRUARY 2011 / BARTALK 9

sections SECTION UPDATE

Legal Research

Irvine spoke about legal reKeep Current A review of u Mr. search and the new civil rules. particular, Mr. Irvine reviewed provincial Section meetings. theInobject of the rules, which re-

Legal Research Meeting: September 23, 2010 Speaker: Fred Irvine Topic: Legal Research and the New Civil Rules

ADR – Vancouver / Family Law – Vancouver Meeting: December 14, 2010 Speaker: Professor Patrick N. Parkinson, Faculty of Law, University of Sydney, Australia (centre) with Nicole Garton-Jones (left) and Stephanie Fabbro (right) Topic: The Voice of the Child

Air Law Meeting: October 18, 2010 Speaker: Richard Hall Topic: Transportation Appeal Tribunal of Canada – Trends in Enforcement Actions in Aviation Matters

mains the same, as well as the addition of the “proportionality rule” outlined in Rule 1-3(2). The Table of Concordance in the Queen’s Printer’s versions of the rules will be of assistance, as will text sources normally consulted and now updated to refer to the current rules. He further outlined the following changes found in the new civil rules: responding to civil claims; case planning orders; revival of the fixed date system for interlocutory applications; summary judgment; duty of expert witnesses; appointment of court’s own expert; pre-trial conference on experts; discovery of documents; examinations for discovery; and interrogatories. Mr. Irvine further confirmed that case law decided under Rules of Court (SCR 1976, SCR 1990 and, where applicable, SCR 1961) will remain relevant and helpful.

ADR – Vancouver / Family Law – Vancouver Professor Patrick Parkinson, Fac-

uulty of Law, University of SydCBABC Women Lawyers Forum Kamloops Meeting: December 4, 2010 Speakers: Michelle Stanford (photo) and The Honourable Judge Donegan Topic: Dealing with Difficult Clients

10 BARTALK / FEBRUARY 2011

ney, Australia spoke on the Voices of Children in Family Law Disputes. Over the last decade or so there has been increasing recognition of the need to take into account the views of children on various issues in relation to decisions that directly affect them. Increasingly, children have been recognized as active constructors of their own experience and as persons in their own right whose perspectives and

interests may not necessarily coincide with those of their parents or other adults responsible for making decisions. Judicial interviews with children in contested parenting proceedings are an uncommon and contentious practice in Australia and many other common law jurisdictions. While there has been some debate about the merits and risks of such a practice among professionals and academic commentators, there is little research on the views of children and parents.

Air Law Richard Hall presented on

uthe organization, function

and activities of the Transportation Appeal Tribunal of Canada (“TATC”). It’s interesting to note that 70 per cent of cases are aviation while 30 per cent of cases are marine, with marine fines being much larger than aviation fines. Review Hearings take place in the area where the enforcement took place. There is to be full disclosure by both sides in respect to any hearing. Once full disclosure has taken place, a date is set and usually the Review Hearings take place in federal court courtrooms where possible or hotel rooms. The procedure for a hearing is that Transport Canada’s Case Presentation Officer gives an opening submission and then the Applicant can give a statement. Then Transport Canada calls its witnesses. All of the witnesses are sworn and a witness may be subject to crossexamination. The Applicant then presents his case and witnesses. Decisions are usually given in writing 120 to 130 days after a hearing, and there is a 30-day time period to appeal after a decision

is made. Appeals are heard by a three-person panel and take an average of 120 days to render a decision. TTAC decisions and procedural rules are posted on the TATC website, which is www.tatc.gc.ca.

SECTION CHAIR SPOTLIGHT CRIMINAL LAW – VANCOUVER

CBABC Women Lawyers Forum Kamloops The topic of the meeting was

u“Dealing with Difficult Cli-

ents.” Guest presenters provided two distinct views on the topic: The Honourable Judge Donegan provided a view from the bench, and practising lawyer, Michelle Stanford, who has a background in nursing, provided a medical/ legal perspective with a focus on clients with mental health issues. The Honourable Judge Donegan’s presentation discussed the challenges that both judges and court staff face in these situations, as well as provided pointers for finding the right balance, particularly when dealing with self-represented litigants. Michelle Stanford covered issues specific to clients who are not criminally responsible and the process involved in review panel hearings. Ms. Stanford also discussed techniques for communicating with mentally ill clients, including nonverbal cues, as well as the ethical issues faced by legal counsel when dealing with mentally ill clients.

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.

Eric Gottardi practises primarily in the area of criminal defence. He has represented clients in some of British Columbia’s recent well-known cases, including the Air India trial and the Hollyburn Country Club murder trial. He has appeared as counsel in all levels of court in British Columbia and in the Supreme Court of Canada. He was recently called to the Bar in Ontario as a special prosecutor. Earlier in his career, Eric clerked at the Court of Appeal for Ontario. After being called to the Bar in 2003, he joined the firm of Peck and Company, where he soon focused on appellate and extradition work. He has been the Chair of the Criminal Justice – Vancouver Section for the past two years.

GO ONLINE FOR MORE INFORMATION

FEBRUARY 2011 / BARTALK 11

features GAIL MCKAY

Thompson Rivers University Law School

Studying law in the B.C. interior.

“

Town and gown.” Law firms are generally clustered in a business district downtown far from academia. Compared with B.C.’s three largest Lower Mainland campuses, Thompson Rivers University (TRU) follows a more traditional Cambridge or Harvard planning model, which makes an asset of the lack of physical “distance” between the profession and the university. A Google Earth view of TRU shows the university as the centerpiece of the interior city of Kamloops, and its law school – the first new Canadian law school in 35 years – intends to take town and gown integration to its heart, effecting a reciprocity, a flow of expertise and intellectual traffic, between community and campus. How was permission to create a new law school granted? The Law School Advisory Board persuaded the provincial government that, in the same way medical schools at UNBC and UBC Okanagan encourage interns and newly credentialed doctors to stay and practise where they train, situating a law school in a non-Lower Mainland location could provide clients with a better level of access to justice. “Prince Rupert is an example of a place that is hugely underserviced because of retirement and competition with big cities,” explains Advisory Board member and former B.C. Law Society President Rob McDiarmid. As well, TRU General 12 BARTALK / FEBRUARY 2011

Counsel John Sparks helped argue that, in the context of the 2009 Trade, Investment and Labour Mobility Agreement (TILMA) between B.C. and Alberta, a plan to license existing curriculum from the University of Calgary’s law school, with appropriate B.C. content modifications at TRU, was exactly the type of interrelationship contemplated by the drafters of TILMA. Courses such as natural resource law, aboriginal law and environmental law make the U of C curriculum a natural fit with the needs of many Kamloops and other non-Lower Mainland firms. But certain nuances to the classic academic curriculum have been identified by Chris Axworthy, TRU’s Founding Dean of Law, as apposite to the new law school. Besides hiring practitioners to equip students with experiential skills such as “how to run a law office, how to read a balance sheet, and how to draft pleadings, wills and leases,” Axworthy has a broader vision of what it means to graduate students who are “practice-ready.” The “imposition of a higher standard of ethics placed upon the self will be expected from day one,” he explains. “Rather than tacking on the CBA’s Code of Professional Conduct in the last few months of a legal education, students will be expected to

think and behave like lawyers from semester one, year one, as they interact with role models from both community and classroom.” As Anne Pappas, TRU Law’s Lawyer/Manager Administration points out, “putting lawyers into remote communities or preparing them for that option if they choose it after graduation, has been an issue the profession has been dealing with for decades.” As examples of delivering in-person instruction in remote communities, Pappas cites the Law Society of Upper Canada’s Bar Admission Course delivered in northern Ontario, and UVic’s Akitsiraq Law Program, which saw instructors going to Iqaluit to teach students. Engendering an attitude of lifelong responsibility to engage in continuing legal education to keep one’s practice viable is another goal of the new law school as it seeks to help preclude any sense of professional isolation in non-Lower Mainland centres. To that end, commencing in January 2011, TRU will begin to serve as one of the hosts to CBABC professional development courses and receptions, welcoming an ongoing flow and exchange of expertise and intellectual traffic. If the precept “know thyself” encompasses knowing the scales with which to weigh the value systems of town and gown, TRU Law will leave its starting gates with both an appreciation and integration of the integrity of each. Photo: Chris Axworthy, TRU’s first Dean of Law. Gail McKay is an Assistant Professor at Thompson Rivers University.

CRISTEN GLEESON

The New Proposed Family Law Act

How will it affect your B.C. practice?

n 2006, the British Columbia Ministry of Attorney General began researching and consulting on the issue of Family Law Reform, culminating in the White Paper released in 2010. The White Paper proposes a new Family Law Act, which promises, if passed into legislation, to change practice for British Columbia’s family law lawyers. The proposed changes are farreaching and cover all family law issues, including but not limited to property division, spousal support, child custody and guardianship. The proposed treatment of spouses under the new law marks a significant broadening of spousal support and property division rights for non-married persons. Unlike the Family Relations Act, the new law provides that all individuals meeting the definition of “spouse” are entitled to property division and spousal maintenance. The new definition is broad. The proposed legislation defines a “spouse” as follows: A. A person who is married to another person, B. A person who lived with another person: I. In a marriage-like relationship for a continuous period of at least two years, or II. In a marriage-like relationship of some permanence if the persons are together the parents of a child and, for the purposes of this Act, the

marriage-like relationship may be between persons of the same gender, or III. Is a former spouse for the purposes of applying for an Order under this Act. This definition allows persons who have cohabited and had children together to claim property division and spousal support even where the relationship may have been brief. The proposed Family Law Act likely means change for B.C. lawyers both now and in the future. Many of the proposed changes are so far-reaching that it is wise to start advising clients now of the potential changes to their property and maintenance rights. One thorny issue that B.C. family law lawyers confront presently is the interpretation of Section 120.1 of the Family Relations Act. The courts have interpreted even cohabitation agreements, which specifically seek to protect property rights, as opting the parties into Part 5 of the Family Relations Act. This has resulted in many family law lawyers advising their clients against cohabitation agreements and, therefore, provides little protection for common law spouses. The new Act eliminates Section 120.1 but includes un-married spouses in the property division regime. This makes the present

state of existing cohabitation agreements perhaps even more precarious. However, the proposed changes create a new regime under which common law spouses can seek the protection of cohabitation agreements drafted to the requirements of the new Act. The proposed changes also address the enforceability of agreements. For the first time in British Columbia, there will be a codification of the circumstances under which a family law agreement may be set aside. This aspect of the changes could result in decreased certainty with respect to both past and future agreements. For example, Section 18 of the proposed Family Law Act states that the court may set aside an agreement if satisfied it would be unfair not to do so because a party did not understand the nature or consequences of the agreement. Meeting this test could be as simple as a party’s testimony or affidavit evidence. Because of the changes proposed with respect to the enforceability of family law agreements it would be wise to write to past and future clients to advise them of the risks associated with these proposed changes. The proposed Act also eliminates the existing triggering events and provides only one triggering event, the date of separation. This will provide increased protection for clients particularly in the event of the death of a spouse or a declaration of bankruptcy. Cristen Gleeson is Co-Chair of the Fraser Valley Family Law Section and is a partner at Baker Newby LLP. FEBRUARY 2011 / BARTALK 13

features MICHAEL LITCHFIELD

Ensuring Access to Justice Innovative projects throughout the province.

n integral component of the mission of the Canadian Bar Association is to improve and promote access to justice. In recent years the British Columbia Branch has launched, and continues to lead, a number of innovative projects to fulfill this mission that are making an impact throughout the province. In March of 2009, the British Columbia Branch of the Canadian Bar Association (CBABC) launched the Rural Education and Access to Lawyers Initiative (REAL) with funding from the Law Foundation of British Columbia. The threeyear initiative was commenced in response to the current and anticipated increasing shortage of lawyers practising in small towns throughout British Columbia. The initiative consists of a coordinated set of programs that address this shortage in order to ensure that these communities continue to enjoy access to legal services. A primary component of the initiative is the summer student program that provides funding and support for lawyers in small towns throughout the province to hire a summer student. The program began in the summer of 2009 with 11 students placed in diverse locations, including postings as far north as Fort St. John and as far east as Cranbrook. In 2010, the REAL Initiative was able to increase the number of summer students to 21

14 BARTALK / FEBRUARY 2011

and it is anticipated that another 21 positions will be created for 2011. The goal of the summer program is to expose students to the vast array of opportunities that exist throughout the province and to ultimately increase the number of young lawyers practising outside of urban areas so that smaller communities throughout the province continue to enjoy a high level of access to legal services. Recent data indicates success in this endeavour with more than half of summer students taking part in the 2010 summer program being offered article positions as a result of their summer experience. Perhaps more important however, is a noticeable shift in attitude and interest from students and practising lawyers alike who see practising in a non-urban setting as an attractive career option. More recently, the CBABC played a leading role in the formation and implementation of the Public Commission on Legal Aid (the â&#x20AC;&#x153;Public Commissionâ&#x20AC;?). The Public Commission is a joint project of the CBABC, The Law Society of British Columbia, The Law Foundation of British Columbia, The British Columbia Crown Counsel Association, The Vancouver Bar Association and The Victoria Bar Association. The Public Commission was borne out of a series of

meetings between community organizations and justice system stakeholders who shared a common concern about the future of legal aid in the province. The purpose of the Public Commission is to engage the public of British Columbia regarding their priorities for the future of legal aid through an open call for written submissions and through an 11-community tour of the province to hear in-person submissions. The Public Commission commenced the in-person hearings in September of 2010 and in addition to holding hearings in the larger urban centres of the province, visited numerous smaller communities, including Terrace, Williams Lake, Nanaimo and Cranbrook. The report of the Public Commission is currently under development and once released will provide an important foundational document for continued efforts to improve access to justice in British Columbia. While the province of British Columbia continues to face challenges in regards to access to justice, the legal profession can be proud of the significant projects that have been launched in recent years to address this important issue. Not only have these projects made an impact here in British Columbia, they have also garnered national attention and have reinforced the reputation of the province as an innovation leader. Michael Litchfield, CBABC Regional Legal Careers Officer, Rural Education and Access to Lawyers. Email: mlitchfield@bccba.org

ALLAN PARKER, QC AND MARK BENTON, QC

B.C. Lawyers Abroad Strengthening Access to Justice through Legal Sector Development (SAJEA).

he latter part of 2010 saw CBABC members making impressive contributions to the CBA’s International Development Program for East Africa. The current program is called Strengthening Access to Justice through Legal Sector Development (SAJEA). Phase one of SAJEA is a twoyear program between the CBA and partners in Kenya, Tanzania, Uganda and Ethiopia. SAJEA is designed to strengthen the ability of justice system stakeholders to address issues related to access to justice and to increase collaboration among justice system stakeholders to improve access to justice. The program is funded by the Canadian International Development Agency (CIDA) and is supported by the voluntary contributions of legal professionals in Canada and Eastern Africa. Full details for the program, including very informative newsletters, can be found at www.cba.org/SAJEA/ en/main/default.aspx. In July 2010, CBA 2nd Vice President Robert Brun, QC and CBABC Executive Director Caroline Nevin facilitated a three-day SAJEA conference in Kampala, Uganda on “Making Strategic Plans a Reality.” Several presidents, council members and senior staff attended the conference from the region’s law societies and Bar. Sessions dealt with governance capacity and priority

setting, barriers in maintaining priorities and tips on project management and monitoring. There was also a session in “world café” format to discuss common issues and challenges in strategic plans. In October 2010, LSS Executive

Director Mark Benton, QC and Access Pro Bono Associate Executive Director Allan Parker, QC attended a three-day conference in Mombasa, Kenya. Also attending were lawyer Martha MacKinnon, Executive Director of the Justice for Children and Youth Clinic in Toronto and Andrea Redway, SAJEA Project Director for East Africa. The focus of the conference was an update for the National Working Groups (NWGs) of Kenya, Tanzania and Uganda on development of their legal aid plans as part of the current phase of the SAJEA program. Each NWG is

made up of representatives of law societies, government agencies and various non-governmental agencies. As well as developing legal aid plans, the NWGs have developed focused pilot programs for their countries: Kenya on children’s programs; Tanzania in AIDS programs; and Uganda on community outreach and rights awareness. The conference dealt with several practical issues, which are, in their own way, universal to all legal systems. These included: considering how to develop programs that ensure the client’s perspective is effectively considered; reviewing legal aid governance models and service delivery systems; and facilitating inter-organizational collaboration. Themes throughout the conference were how pro bono services could complement legal aid programs, and how community advocate services could support delivery of legal help. Following the Mombasa conference, Mark and Allan travelled to Kampala, Uganda for two additional days of meetings at the invitation of the Uganda Law Society. Mark presented an additional session on legal aid governance, based on the work done at LSS. Allan then participated in a daylong session on training trainers who will be working with local volunteer community advocates on rights delivery programs – as part of that session, Allan was able to share with the participants the extensive materials developed for the Law Foundation’s Legal Advocacy Training Course. Allan Parker, QC (centre front) and Mark Benton, QC (right) with the Uganda Law Society staff in Kampala. FEBRUARY 2011 / BARTALK 15

features JIM MUTTER

Business Law is Moving Beyond Vancouver

The role of EBC and VCC tax incentives.

hile the foundation for business legal services is firmly entrenched in Vancouver, legal communities around the province are developing strong corporate / commercial practices thanks to changing dynamics in B.C. business. The market for up and coming companies outside of the Lower Mainland is thriving and the diversity of communities beyond the 604 area code provides an opportunity to help grow unique businesses. The government has recognized this potential for business growth and development beyond B.C.’s traditional business centre and has developed a tax incentive program to jumpstart small businesses outside of the Lower Mainland. This is further supported by the fact that one of the five qualifying activities of an eligible business corporation (“EBC”) is community diversification outside of the Lower Mainland. The Venture Capital Programs division of the Ministry of Small Business, Technology, and Economic Development was established to promote equity investments in B.C. companies (and thus bolster the economy) using two different investment models: direct, through EBCs; and indirect, through VCCs (venture capital corporations). VCCs are investment funds that target start-ups and small businesses.

16 BARTALK / FEBRUARY 2011

EBCs are corporations that meet various eligibility criteria related to industry, size and employment structure. The target companies are small – usually start-ups – and in need of a capital raise of up to $5,000,000 to continue. The key benefits of these programs are the tax implications for eligible investors. Shareholders of an EBC who are individuals resident in B.C. can claim up to $60,000 in refundable tax credits in one year. B.C. corporate shareholders can also claim non-refundable tax credits. These are powerful incentives for investment, but need to be assessed carefully. The EBC must comply with the strict requirements of the Small Business Venture Capital Act (the “Act”) in order to retain the availability of those tax credits for investors. In the event the EBC is found to be in contravention of the Act, the investor may be required to repay any tax credits it has benefited from, especially if the investor has collected a refund. While the benefits of an EBC to investors and small businesses can be significant, companies and their counsel should carefully consider the Act to ensure that the company can meet the application, and ongoing, eligibility requirements.

There are numerous scenarios and transactions that can constitute non-compliance, which can translate to potential liability for solicitors advising in this area. Lawyers intending to advise clients on these programs should collaborate with accounting and tax professionals and are urged to contact other lawyers with expertise in this area. The Ministry also plays an important role in the application process and can be a valuable resource. The combination of government incentives such as the Venture Capital Programs and skilled counsel moving to smaller, growing communities may shift the foundation of the Vancouver corporate world in the coming years. While big businesses will likely remain with big firms, smaller companies may make the move to local boutique business law firms that can offer more personalised service. As clients go, small businesses can be more attractive to counsel in this area. Small companies are not burdened by existing complicated structures or the pressure to downsize due to the changing economy. They offer unique, challenging work with a problemsolving focus. As the small business population expands, counsel will need to be familiar with the issues that developing companies face and have relevant tools, such as the EBC and VCC incentives, available for clients.

Jim Mutter, Partner, Benson Salloum Watts LLP

JAMIE MACLAREN

The Reluctant Path to Ubiquity

Pro bono clinics spread across B.C.

ach month, Access Pro Bono operates pro bono clinics in 95 locations across B.C. â&#x20AC;&#x201C; as far north as Fort Nelson, as far south as Surrey, as far east as Nelson and as far west as Prince Rupert. Pro bono clinics are now more common in B.C. than outdoor hockey rinks, Canadian Tire stores and White Spot restaurants. It follows that pro bono legal services are more widely available to low-income British Columbians than moonlit games of shinny, Motomaster car batteries and Triple-O hamburgers. The weaving of pro bono legal services into the cultural fabric of B.C. communities is a bittersweet phenomenon. On one hand, it reflects a pervasive spirit of benevolence and volunteerism among lawyers and a healthy respect for the rule of law. It evokes warm and folksy images of kind-hearted lawyers counselling local citizens who find themselves a little down on their luck. On the other hand, it signals that many British Columbians cannot afford to pay market rates for critical legal services, nor can they rely on government to fill the affordability gap. It is no coincidence that the decline in access to justice in B.C. parallels the steady service cuts to its legal aid system. In seven of eleven hearing locations of the recent Public Commission on Legal Aid, pro bono lawyers brought the preceding point

into sharp focus. They each spoke of their particular frustrations in advising and representing marginalized people whose types of legal issues were once covered by legal aid. In cities and towns like Williams Lake, Terrace and Nanaimo, they told of pro bono clients whose legal problems had grown from bad to worse to life threatening because of no early and reliable access to free legal representation. For many clients living in rural and remote communities, the negative effects of legal service gaps were compounded by factors of mobility and distance. Some clients spent their last bit of money on a Greyhound ride to the nearest pro bono clinic.

The weaving of pro bono legal services into the cultural fabric of B.C. communities is a bittersweet phenomenon. In an effort to extend as many services as possible to low-income British Columbians residing in isolated communities where few or no lawyers practice, Access Pro Bono is expanding its use of

Skype-based clinics. Such clinics only require that a client have Internet access in order to link by video to a pro bono lawyer providing legal advice from the comfort of his or her faraway office. The clinics also provide private and accessible means of connecting clients with particular legal, language or cultural issues to remote pro bono lawyers trained to serve their sensitive needs. A woman dealing with a violent domestic situation in a small northern town, for example, could connect to a pro bono lawyer associated with Battered Womenâ&#x20AC;&#x2122;s Support Services in Vancouver. Access Pro Bono will always prioritize in-person service over remote service, but its in-person reach is limited by the location of lawyers in the province. At almost 100 clinic locations across B.C., Access Pro Bono is nearing the saturation point for clinics located in communities near or where lawyers currently practice. Over time, initiatives like the CBABC Branchâ&#x20AC;&#x2122;s Rural Education and Access to Lawyers program (REAL) will serve to extend the reach of in-person clinics. But major growth of pro bono culture in B.C. is likely to occur in the virtual world with the proliferation of Skypebased clinics. British Columbians should only be so lucky to see the growth of pro bono culture in B.C. limited by renewed investment in its legal aid system.

Jamie Maclaren, Sole Practitioner and Executive Director, Access Pro Bono Society of B.C. FEBRUARY 2011 / BARTALK 17

news&events AWARD

Lorianna Bennett Honoured with TRU’s 2010 Distinguished Alumni Award for Community Service

Left to right: George Cadman, QC of Boughton Law Corporation; Rick Cluff of CBC Radio 1 is standing at the podium (the MC for the evening); Peter Ramsay, QC of the BCLI; Emily Clough and Andrew MacKay of Alexander Holburn Beaudin & Lang LLP are holding the well-deserved GREATdebate trophy. EVENT RECAP

Immensely Successful 3rd Annual GREATdebate n On November 23rd, 2010,

Boughton Law Corporation and the British Columbia Law Institute jointly hosted the immensely successful 3rd Annual GREATdebate at the Pan Pacific Hotel, Vancouver. A lively and entertaining evening of dinner and debate, the event was sponsored by R. Johnson, HSBC, HUB International and Manning Elliot. George Cadman, QC of Boughton Law Corp., hosted the evening and Rick Cluff, host of CBC Radio 1 “The Early Edition,” presided as moderator for the debate. Debaters from Alexander Holburn Beaudin & Lang LLP and Boughton Law Corp. delivered creative and thoughtful presentations and rebuttals on the 18 BARTALK / FEBRUARY 2011

topic “Mrs. Forenza Wings 14.2 million estate should go to her parrot, Polygon.” The judging panel comprised The Honourable Wally Oppal, QC, former Attorney General of British Columbia, The Honourable Lance Finch, Chief Justice of the Court of Appeal, B.C. and The Honourable Robert Bauman, Chief Justice of the Supreme Court, B.C. The judges continued the jocular mood by delivering a unanimous and light-hearted decision that awarded victory and the GREATdebate Trophy to the team from Alexander Holburn Beaudin & Lang LLP. The 2010 GREATdebate will be remembered as one of last year’s professional event highlights.

n Lorianna, a family lawyer, mom and engaged community volunteer, has inspired her peers and promoted a culture of change in many law firms striving to create working environments that balance the needs of professionals, families and communities in her capacity as the former Yale County representative of the Canadian Bar Association. Work life balance is important to Lorianna who is an active volunteer in her sons’ school and sporting activities, teaches a Commercial law course at TRU and fundraises for the hospital and university foundations. She often takes time to speak as a career mentor and as an advocate for anaphylaxis education.

NATIONAL NEWS – ETHICS

Your Questions Answered on Privilege and Confidentiality n Frequently asked questions

(FAQs) about solicitor-client privilege and client confidentiality are the subject matter for the third in a series of guidelines, designed to supplement the CBA Code of Professional Conduct. Published in a convenient, searchable, online format, the guidelines pose 17 FAQs that deal with ethical issues for lawyers, ranging from exceptions to solicitor-client privilege, to client identification, to how to preserve privilege when communicating electronically. “Lawyers have a duty, as expressed in the ethical codes of the profession, to hold client information in strict confidence,” explains Paul Paton, Chair of the CBA’s Standing Committee on Ethics and Professional Responsibility. “The duty itself is straightforward, but how it applies in practical situations may not always be clear. We hope

these FAQs will assist lawyers in identifying and fulfilling their professional responsibilities.” The publication makes the important distinction between privilege and confidentiality, as outlined in the CBA Code of Professional Conduct. “The duty of confidentiality is distinguished from the common law rule of solicitor-client privilege with respect to oral or written communications between client and lawyer. The duty of confidentiality is wider and applies without regard to the nature or source of the information or to the fact that others may share the knowledge.” Produced by the CBA’s Ethics and Professional Responsibility Committee, the questions and answers follow two earlier practice tools – on new technologies and marketing practices. Law Professor Adam Dodek of University of Ottawa served as research director.

The two earlier sets of guidelines, along with the CBA Code of Professional Conduct, are all available on the CBA website: FAQs on Solicitor-Client \\

Privilege and Confidentiality www.cba.org/CBA/activities/ code/privilege.aspx Guidelines for Practising \\

Ethically with New Information Technologies www.cba.org/CBA/activities/pdf/ guidelines-eng.pdf Guidelines for Ethical Marketing \\ Practices Using New Information Technologies www.cba.org/CBA/activities/pdf/ ethicsguidelines-eng.pdf CBA Code of Professional \\

Conduct 2009 www.cba.org/CBA/activities/ code/ GO ONLINE FOR MORE INFORMATION

AWARD NOMINATIONS

Call for Nominations n You are encouraged to honour a colleague and fellow CBABC member through their nomination for one of the following prestigious awards: The Equality and Diversity Award celebrates the accomplishments of a CBABC member who has succeeded in advancing equality in the legal profession or generally in B.C. The Harry Rankin, QC Pro Bono Award was established in recognition of the immense contribution of Harry Rankin, QC in supporting access to justice for

the poor. The Award recognizes outstanding contributions by a member of the CBABC in the area of pro bono work. The Work Life Balance Award recognizes a CBABC member, law firm or organization who demonstrates leadership in promoting work life balance within the practice of law. Additional information on these awards and nomination forms are available on the home page at cba.org/bc under “Call for Nominations.”

Grant Wong named by Lexpert as one of Canada’s leading lawyers under 40. This honour recognizes Grant, partner at Lang Michener LLP, as a rising star in the Canadian legal industry, and among the next generation of leaders in law. Lexpert, a leading publication on business law in Canada, announced its selection at a gala awards ceremony on November 25, 2010. FEBRUARY 2011 / BARTALK 19

news&events VOLUNTEERS NEEDED

NATIONAL NEWS – ADVOCACY

Bill C-49 Denies Rights of Refugee Claimants n The CBA’s National Citizenship and Immigration Law Section says Bill C-49, Preventing Human Smugglers from Abusing Canada’s Immigration System Act, wrongly targets and penalizes refugee claimants rather than the human smugglers who facilitate their arrival. “The CBA understands the government’s desire to enact legislation that will discourage further irregular, mass arrivals and agrees that it is legitimate to target the activities of human smugglers,” says Gordon Maynard, of Vancouver, a past Chair of the CBA’s National Citizenship and Immigration Law Section. “Unfortunately, little of Bill C-49 is directed at them.” The CBA cautions that Bill C-49’s mandatory and

long-term detention proposals deny basic rights to refugee claimants. “Under the proposed scheme, refugee claimants would be denied a review of their detention for 12 months, refused appeal rights, and even recognized refugees would be denied access to permanent residence status for a minimum of five years. These provisions profoundly affect refugees in need of protection and impede their integration into Canadian society,” says the CBA brief. The CBA concludes that the flaws in Bill C-49 cannot be rectified by modest amendments. “For these reasons we do not support Bill C-49,” says Gordon Maynard. CBA Submission \\

www.cba.org/CBA/submissions/ pdf/10-78-eng.pdf

Law Students’ Legal Advice Program (LSLAP) – Call for Volunteers n LSLAP is a non-profit society run by UBC law students that has been providing legal advice and representation to low-income persons throughout the Lower Mainland for more than 40 years. LSLAP is currently seeking volunteer lawyers to oversee its clinicians in small claims and criminal trials. LSLAP is seeking a commitment from lawyers to attend one or two trials per year, at which they can provide advice and feedback to an LSLAP student. Your involvement will support our clinician’s legal education, and will ensure impoverished persons in our community maintain access to cost-effective legal representation. Interested persons may contact our Legal Assistant, Trina Barnes, at trina@lslap.bc.ca for further details.

NATIONAL NEWS – ADVOCACY

Changes to Bill C-470 Welcomed n In December 2010, the federal government Standing Committee on Finance modified Bill C-470, An Act to Amend the Income Tax Act (revocation of registration) with changes that reflect two of the CBA’s principal concerns about the impact of the Bill. Earlier versions of the private member’s Bill would have amended the Income Tax Act to revoke the registration of a charitable organization, public foundation or private foundation if the annual compensation it pays to any single executive or employee exceeds $250,000. In its submission presented to the Finance Committee earlier in 20 BARTALK / FEBRUARY 2011

December, the CBA’s Charities and Not for Profit Section said the proposed salary cap would undermine the work of many large registered charities, by reducing the pool from which they can draw senior staff. The Bill has been modified to remove the compensation cap. The Finance Committee was also receptive to the CBA’s concern about the impact of the disclosure requirements in Bill C-470 on confidential transactions between charities and third parties, including contracts for payment of lawyers. In its amended form, Bill C-470 respects solicitor-client privilege

by not requiring disclosure of fees paid to lawyers. The amended Bill C-470, which will go to the full House of Commons for a final vote, requires the disclosure of the name, job title and annual compensation of all employees and executives of Canadian registered charities who receive total annual compensation of more than $100,000 beginning in 2012. In earlier versions of the Bill, the disclosure requirement applied only to the top five earners in an organization. CBA submission \\

www.cba.org/CBA/submissions/ pdf/10-56-eng.pdf

LEGISLATIVE UPDATE

ACTS IN FORCE Current from November 2 to December 31, 2010 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. FINANCE STATUTES AMENDMENT ACT, 2009, S.B.C. 2009, C. 15 (BILL 5) Sections 16 to 19 and 21 are in force November 19, 2010 FINANCE STATUTES AMENDMENT ACT, 2010, S.B.C. 2010, C. 4 (BILL 6) Sections 53 and 58 are in force January 1, 2011

BRANCH & BAR

Calendar

FEBRUARY

5-9 17th Commonwealth Law Conference in India 8

CBABC PD/NWBA Seminar: Ethics in Action: Practice and Community in New Westminster

9 & 23 LAP: Overcoming Procrastination 18-20 CBA Mid-Winter Meeting of Council in Charlevoix, QC 23-24 Just a Click Away Conference in Vancouver

MARCH

2, 9 & 23 LAP: Overcoming Procrastination 9

Women and the Law Dinner in Vancouver

12 Provincial Council Meeting in Richmond 17 CBABC PD/TRU Seminar/Webcast: The Top Ten Causes of Claims NATIONAL NEWS – ELECTIONS

FINANCE STATUTES AMENDMENT ACT (NO. 2), 2010, S.B.C. 2010, C. 18 (BILL 19) Sections 62 to 64 and 68 are in force November 19, 2010

Two candidates for National Second Vice-President

GUNSHOT AND STAB WOUND DISCLOSURE ACT, S.B.C. 2010, C. 7 (BILL 12) Act is in force February 1, 2011

n Two candidates are vying for

GREENHOUSE GAS REDUCTION (RENEWABLE AND LOW CARBON FUEL REQUIREMENTS) ACT, S.B.C. 2008, C. 16 (BILL 16) Sections 8, 10 and 11(3) and (4) are in force January 1, 2011 MISCELLANEOUS STATUTES AMENDMENT ACT, 2008, S.B.C. 2008, C. 30 (BILL 33) Sections 11, 12 and 13 are in force November 19, 2010

the position of Second VicePresident of the CBA for 20112012. Once elected, the Second Vice-President goes on to become the First Vice-President a year later, and then President of the CBA a year after that. The candidates are Lukasz Granosik of Montreal and Fred Headon of Montreal. According to CBA bylaws, only members of

MISCELLANEOUS STATUTES AMENDMENT ACT (NO. 2), 2009, S.B.C. 2009, C. 34 (BILL 20) Section 22 except paragraph (b) and sections 23 to 35 and 40 to 42 are in force January 1, 2011. Sections 22(b) and 36 to 39 are in force January 1, 2012

EVENT REMINDER

MISCELLANEOUS STATUTES AMENDMENT ACT (NO. 3), 2010, S.B.C. 2010, C. 21 (BILL 20) Sections 47, 50, 52, 53 and 59 are in force November 26, 2010. Sections 91 to 93, 98 and 112(c) are in force December 7, 2010. Sections 76(a) and (b) and 81(d) are in force December 20, 2010

n Law Week 2011 events will be held in communities throughout British Columbia. The Vancouver Law Week Open House will be held on April 16, 2011 at the CBC Regional Broadcast Centre

Council are eligible to vote. Members will cast their ballots online using secure voting technology. The winner will be announced once the votes are tallied. Find out more about the candidates: Lukasz Granosik \\

www.lukaszgranosik.ca Fred Headon \\

www.fredheadon.ca

Law Week – April 9 to 16, 2011 in Vancouver. The Vancouver Fun Run is tentatively scheduled for April 10, 2011. For more information on \\ Law Week 2011 events visit www.bclawweek.org.

FEBRUARY 2011 / BARTALK 21

news&events Health & Wellness TIP Small Changes We Can Make to Live a Healthier Lifestyle Exercise – Who has time for it? It is important to never lose sight of the physical and mental benefits of exercise. Even just 30 minutes a day of brisk walking will impact your ability to think more clearly and rest easier. Try to build in 20-30 minutes of exercise, at least three times a week – doing this can help your body to release some of the stress it endures. You will feel much better as a result! COURTESY OF PPC CANADA

www.ppconline.info

EVENT

CBABC Women Lawyers Forum Honours Outstanding Women Lawyers n On February 25, 2011, the WLF will hold a luncheon to honour the newest recipients of the WLF Award of Excellence and the Debra Van Ginkel, QC Mentoring Award. The Honourable Madam Justice Anne MacKenzie, Associate Chief Justice of the B.C. Supreme Court will be our featured guest speaker. Margaret Ostrowski, QC is this year’s recipient of the WLF Award of Excellence. This award recognizes women lawyers with distinguished career achievements UPGRADE

CLEBC Update CLEBC ONLINE PUBLICATIONS AND SEARCH ENGINE Here at CLEBC, we have been working on a major upgrade to our online publications and to our search engine. The features and speed of the online publications and the search engine have all been significantly improved. We’ve been working with LexUM, the software

22 BARTALK / FEBRUARY 2011

who have also made outstanding contributions to women in the legal profession as a change agent, leader and mentor. Joan M. Gordon is this year’s recipient of the Debra Van Ginkel, QC Mentoring Award. This award, named after the late Debra Van Ginkel, QC, recognizes women lawyers who have demonstrated an exceptional commitment to mentoring other lawyers. These two awards support the WLF’s mandate to promote, developer behind CanLII, on both these projects. LexUM’s sophisticated understanding of the presentation of legal material has been enormously helpful to us in our work. Not only has the functionality been improved, but the new online publications design also included a commenting feature. Users will be able to comment on the content of CLEBC publications, as will authors, editorial boards and CLEBC editorial staff. In this way, the B.C. legal community will be able to share relevant late-breaking news on B.C.

support and advance women in the legal profession. By recognizing those who have made important contributions to women in law, we hope to inspire a new generation to become involved in mentoring and leadership roles in the legal profession. The February 25th awards luncheon will be held at Sutton Place Hotel. More information about the WLF Award recipients and luncheon (including how to register) can be found at www.cba.org/bc. law and practice, as well as different perspectives and approaches to the content of our manuals. We’re now working on the final touches to these upgrades. Look for the new and improved features this spring. And we’re very grateful to the Law Foundation for their support of this project. For further information contact CLEBC customer service at 604-893-2121 (toll-free in Canada at 1-800-663-0437) or at www.cle.bc.ca.

grantsapproved Continuing Programs and Projects The Board of Governors of the Law Foundation of B.C. met on November 20, 2010 and approved funding for a number of continuing programs and projects. Chair Margaret Sasges is pleased to announce that funding totalling $7,069,600 was approved for the following 42 programs and projects:

$131,250 ABBOTSFORD COMMUNITY SERVICES SOCIETY Poverty Law Advocacy Initiative

Funding totalling $5,759,190 was approved for the following 21 continuing programs:

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

$3,599,750 LEGAL SERVICES SOCIETY Operating Grant $257,180 LAW SOCIETY OF B.C. Professional Legal Training Course $250,000 MEDIATE B.C. SOCIETY Operational Funding UNIVERSITY OF BRITISH COLUMBIA $167,000 – First Nations Clinical Program $120,000 – Graduate Fellowship 2011-2012 $58,000 – Undergraduate Scholarships $27,500 – Legal Education and Research Projects 2011-2012 $27,000 – Entrance Awards 2011/2012 $153,590 B.C. COALITION OF PEOPLE WITH DISABILITIES Advocacy Access: Appeals Program $150,000 JUSTICE EDUCATION SOCIETY OF B.C. Expanded Core Services $141,920 GREATER VANCOUVER LAW STUDENTS’ LEGAL ADVICE SOCIETY Law Students’ Legal Advice Program

$76,000 JUSTICE EDUCATION SOCIETY OF B.C. Northern Public Legal Education Program for First Nations Communities

$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 NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETY Legal Advocacy Program $75,000 PENTICTON AND AREA WOMEN’S CENTRE Legal Advocacy Program $75,000 POWELL RIVER COMMUNITY SERVICES ASSOCIATION Poverty Law Advocate Program $75,000 ATIRA WOMEN’S RESOURCE SOCIETY Legal Advocacy Services in the Downtown Eastside $75,000 KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETY Poverty Law Advocacy

For full details of the \\

LAW FOUNDATION OF BRITISH COLUMBIA

Margaret Sasges The Board of Governors is pleased to announce that Margaret Sasges of Victoria has been elected as Chair of the Law Foundation for a two-year term beginning January 1, 2011. Ms. Sasges succeeds Mary Mouat of Victoria who has been Chair of the Law Foundation since 2009. Ms. Sasges earned her law degree from the University of Victoria and was called to the Bar in 1990. She is a partner at the firm of Clay & Company in Victoria where she practises in the areas of wills and estates, trusts, environmental covenants, and business and societies. Ms. Sasges has been a Director of the Lawyer’s Benevolent Society since 2006 and was a member of the Provincial Council of the B.C. Branch of the Canadian Bar Association from 1990 to 2004. She served the CBA in a number of capacities and was on the Executive Committee from 1999 to 2001. She is currently a member of the Probate Rules Committee for the British Columbia Law Institute and was formerly a member of the Estate Administration Subcommittee. She has been a Governor of the Law Foundation since 2006 and has served on the Finance Committee as member (since 2006) and as Chair (2010). She was also the Chair of the Fellowships and Research Committee (2009-2010). Ms. Sasges has also served as a member of the Policy and Planning and the Funding Strategies Committees in her time as a governor.

programs and projects that received funding, please visit www.lawfoundationbc.org.

FEBRUARY 2011 / BARTALK 23

professionaldevelopment EMAIL: PD@BCCBA.ORG

WEBSITE: CBA.ORG/PD \\

The B.C. Branch of the Canadian Bar Association is recognized by the Law Society of British Columbia as a provider of professional development activities. CBABC is committed to providing relevant and cost-effective ways to obtain your mandatory professional development hours. Attendance at any of the seminars listed below will provide you with 100 per cent of the required two hour professional responsibility and ethics, client care and relations, and practice management component for 2011 Law Society of British Columbia reporting.

Upcoming Seminars The New Westminster Bar Association and the CBABC Present: ETHICS IN ACTION: PRACTICE AND COMMUNITY Speakers: Patricia Bond, Vancouver Bencher and Philip Riddell, Local Lawyer Date: February 8, 2011 Time: Registration 3:30 p.m. Seminar 4:00 – 6:00 p.m. Location: Room “Hyack South,” Inn at the Quay, 900 Quayside Drive, New Westminster, B.C.

Thompson Rivers University Law School and the CBABC Present: THE TOP TEN CAUSES OF CLAIMS: BUMPS, POTHOLES AND FLATS ON THE ROAD TO AN ACCIDENT-FREE PRACTICE

Speakers: Susan Forbes, QC, Lawyers Insurance Fund and Margrett George, Lawyers Insurance Fund Date: March 17, 2011 Time: Registration 3:30 p.m. Seminar/Webcast 4:00 – 6:00 p.m. Location: Thompson Rivers University Law School – 900 McGill Road, Kamloops, B.C. *Reception to follow hosted by Thompson Rivers University Law School. *This seminar is available both in-person and via webcast.

\\ CBABC provides conferences, workshops and webinars designed to meet the needs of lawyers while still maintaining the opportunity to network, advance your career, your practice and your business. If you are interested in having any Professional Development programs come to your area, please contact us by email: pd@bccba.org or by phone 604-646-7866 / 1-888-687-3404 x. 329.

\\ Don’t forget to visit our one-stop PD resource site www.cba.org/pd to create a personalised account based on your PD needs! Go to www.cba.org/bc for updates on Professional Development seminars.

memberservices EMAIL: MEMBERS@BCCBA.ORG

Member Services has seasonal promotions and special offers to our members. Visit the CBABC website for links to various activities and promotions on the MEMBER SAVINGS page under MEMBERSHIP. B.C. Ski Resorts Special Offer Winners \\

David Lunny and his wife Maureen Baird are winners of the Whistler Prize Package valued at more than $650. They took advantage of savings on Pre-Season Lift Tickets circulated in November.

Chocolates \\

Take advantage of the “sweet” discounts from Lindt & Sprüngli (Canada) for CBA members when you visit the MEMBER SAVINGS page under MEMBERSHIP.

24 BARTALK / FEBRUARY 2011

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barmoves Who’s Moving Where and When Rajinder S. Sahota

Aaron Lightman

has simultaneously founded and joined Sahota Barristers & Solicitors after having previously practised with Allen & Overy LLP in New York City. Rajinder looks to provide his clients with comprehensive legal services.

has joined Farris, Vaughan, Wills & Murphy LLP’s Vancouver office as an associate in the firm’s Corporate Commercial, Securities & Mergers and Acquisitions practice groups.

Itti K.L. Ma

Gwun Yee

has joined Heddema & Partners LLP as an associate lawyer. Itti’s practice involves tax planning in Corporate, Commercial, Trust and Real Estate areas.

joined Lang Michener’s Vancouver office as an associate in their Securities group. He articled with Lang Michener in 1999 and practised there until 2002.

Gerry Cuttler

Etienne Orr-Ewing

has moved from Getz Prince Wells LLP to Cuttler & Company. Gerry’s practice focuses on Litigation and Dispute Resolution.

has joined Collette Parsons Lawyers as an associate. His practice is litigationbased and focuses on Personal Injury. Etienne completed his LL.B. at the University of New Brunswick in 2009.

Richard Pesklevits

Peter Senkpiel

joined White Raven Law Corporation as a staff lawyer after completing his articles with the firm. Richard completed his LL.B. from Queens University, Faculty of Law in 1997.

joined Nathanson, Schachter & Thompson LLP as an associate after completing his articles with the firm. Peter served as law clerk to the Chief Justice of British Columbia in 2009-2010.

26 BARTALK / FEBRUARY 2011

newmembers SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 35 WORDS) AND PHOTO TO CBA@BCCBA.ORG NOW. FOR MORE BAR MOVES GO TO BARTALK ONLINE

Jeffrey Robinson has passed the patent agent examinations, and is now a registered Canadian patent agent, as well as registered Canadian trademark agent. He practises intellectual property law at Oyen Wiggs Green & Mutala LLP.

Eric Goodman has moved from Farris, Vaughan, Wills & Murphy LLP and joined Murphy, Battista – Lawyers where he specializes in Plaintiff Personal Injury.

Michal Jaworski has joined Richards Buell Sutton LLP. He will be practising with the Commercial Real Estate team, focusing on Development and the Corporate department.

November & December 2010 Regular Members

Articling Students

Timothy F. Cox, J.D. Vancouver

Magrieta Cornelia Abbey Celeste Chamberlain Farris, Vaughan, Wills & Murphy LLP Vancouver

Jyoti Dasanjh Smart & Biggar Vancouver Scott R. Harcus Alexander Holburn Beaudin & Lang LLP Vancouver

Tamara Chirovsky

Nicholas Isaacs McCarthy Tétrault LLP Vancouver

Rahim Esmail Borden Ladner Gervais LLP Vancouver

Douglas C.S. King Pivot Legal Society Vancouver

Hamish Flanagan Victoria

Matthew M. Klasen Matthew Klasen Law Office Victoria Sean R. Mason Goodmans Vancouver

Uphar Dhaliwal Dhanu Law Abbotsford

Sarah Glickman Lawson Lundell LLP Vancouver Karl Hauer MacIsaac & MacIsaac Victoria Vincent Keramat

Kevin A. McLean Smetheram & Company Vancouver

Emma Lehrer Miller Thomson LLP Vancouver

Daylyn J. Miller Jones & Company Garibaldi Highlands

Michael James McCubbin Community Legal Assistance Society Vancouver

Emily Pitcher Fraser Milner Casgrain LLP Vancouver Elsa G. Sardinha Borden Ladner Gervais LLP Vancouver Monika A. Sawicka Lesperance Mendes Vancouver

Warren Beil

Dana L. Siddle Blake, Cassels & Graydon LLP Vancouver

formerly of Blake, Cassels & Graydon LLP, has joined Pathway Capital Ltd. as general counsel.

Jack Wang Buckley Hogan Surrey Jennifer Wong Fraser Milner Casgrain LLP Vancouver

Nathaniel Misri Farris, Vaughan, Wills & Murphy LLP Vancouver Keven Schecter Ewan & McKenzie Golden Samantha Simpson Edwards, Kenny & Bray LLP Vancouver Diego Solimano Chad Travis Lawson Lundell LLP Vancouver Sukhminder Singh Virk Jie Wang Larlee Rosenberg Vancouver

Associate Member

Law Students

Gal J. Smolar Fraser Milner Casgrain LLP Vancouver

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