MEDIATION | WHAT’S ALL THE FUSS ABOUT ADR? | DOPPELGANGERS
APR IL 2011 | www.cba.org/bc
Making the Most of Small Claims Court Mediation PAGE 12
LETTERS BARTALK EDITOR
Deborah Carfrae
EDITORIAL BOARD CHAIR
Michael Welsh
RESPONSE TO THE FEBRUARY 2011 ISSUE
A Crisis of Abundance.
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 BARTALK SENIOR EDITOR
Joanne R. Silver STAFF CONTRIBUTORS
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New Canadian Study Finds 2/3 of Adults are Overweight: David Bilinsky Timely article for our firm and for me, as a mom to two little kids. There’s a crisis of fitness amongst the staff at our firm. Most of them are under 30 but not taking care of themselves. We’ve started the Sun Run training clinic within our firm. We’re now adding in swim and gym work out days. — Veronica H. Cheng Lawyer
Correction: BarTalk incorrectly published The Law Society of British Columbia’s website address – the correct URL is www.lawsociety.bc.ca.
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FAREWELL
The Honourable Donald Brenner, QC Remembered n As we go to press, we learn, with sadness, of the sudden death on March 12, 2011 of The Honourable Donald Brenner, QC, at age 64. The Honourable Chief Justice Bauman said, “As a leader, Don was quiet, effective, strong and compassionate. He was a superb mediator with astute business and financial judgment, talents which allowed him to resolve many of the most difficult business law cases brought before our court. The court has lost a great colleague and friend. The province has lost an outstanding citizen.” CBABC President Stephen McPhee, stated, “We feel a collective loss as one of our most senior and respected justice leaders has been taken from us too soon.” Mr. Brenner is survived by his widow, Robin and two daughters to whom the CBABC extends its condolences. Read more \\
www.cba.org/bc/bartalk_11_15/ 04_11/donald_brenner.aspx
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KUDOS
Canada’s Best Diversity Employers n Blake, Cassels & Graydon LLP and Fraser Milner Casgrain LLP have been recognized as two of many of Canada’s Best Diversity Employers that have exceptional workplace diversity and inclusiveness programs. For more information \\
www.canadastop100.com/diversity/ 2 BARTALK / APRIL 2011
APRIL 2011
VOLUME 23 / NUMBER 2
Contents
Departments
4
FROM THE PRESIDENT The Strength of Our Membership by Stephen McPhee
5
EXECUTIVE DIRECTOR A Convergence of Interests by Caroline Nevin
6 NOTHING OFFICIAL Doppelgangers by Tony Wilson 7
ON THE WEB Searching the Deep Web by Patricia Jordan
8
PRACTICE TALK Online Dispute Resolution by David J. Bilinsky
9
DAVE’S TECH TIPS
Sections
10
SECTION UPDATE Young Lawyers – Victoria Environmental Law General Practice, Solo and Small Firm – Lower Mainland International Assistance
11
SECTION NEWS Introduction to the Aboriginal Lawyers Forum
Features 12 MAKING THE MOST OF SMALL CLAIMS COURT MEDIATION by Shelina Neallani and Yuki Matsuno 13 INNOVATION IN MEDIATION THROUGH TECHNOLOGY by Kari D. Boyle 14 PROBLEM SOLVING IN ACTION by Colleen Cattell, QC 15 WHAT’S ALL THE FUSS ABOUT ADR? by Najeeb Hassan
Inside This Issue With our congested courts and a need to find effective problem resolutions, we focus on mediation. We look at Small Claims mediation, newer mediation areas such as estate litigation and elder law issues and remind ourselves of where it all started – in labour law. Also, check out activities during Law Week and read a summary of the Doust Report on legal aid.
News and Events 2 The Honourable Donald Brenner, QC Remembered Canada’s Best Diversity Employers 18 Foundation for Change – Report of the Public Commission on Legal Aid in British Columbia CBA Canadian Legal Conference: Halifax 2011 Mark the Dates – August 14-16, 2011 19 Mid-Winter Meeting 2011 – Reports, Campaigns, Resolutions Artists’ Legal Outreach CBA Criticizes Immigration Minister’s Comments About Judges 2011 Edition of CBA Advocacy Now Online 20 Clinical Mediation Training at UBC CLEBC Update 21 Legislative Update Branch & Bar Calendar CBABC Women Lawyers Forum Education Day 2011 22 Courthouse Libraries BC Family Law Advice – Only a Phone Call Away Mediation TIP
Also In This Issue
2 LETTERS AND NEWS 23 LAW FOUNDATION OF BRITISH COLUMBIA 24 PROFESSIONAL DEVELOPMENT & MEMBER SERVICES 25 DISPLAY ADS
16 ELDER MEDIATION IN CANADA by Joan Braun
26 BAR MOVES
17 LAW WEEK 2011
27 NEW MEMBERS APRIL 2011 / BARTALK 3
FROM THE PRESIDENT STEPHEN MCPHEE
The Strength of Our Membership It is easy to break one reed, but hard to break many.
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his past February our CBA Branch very quietly achieved a milestone of some significance. I thought that event should not go unnoticed and the people responsible for that event should receive the proper recognition and thanks. If I could, I would contact each of those responsible personally and express my appreciation for their contribution and stress the importance of their continued contribution to the success of our organization. That would take awhile. There are more than 6500 of you. You are our members. You see, in February, while we have continued to grow our membership year over year since 2005, we achieved a 96 per cent membership renewal rate in our regular five year + category. Up to now, we have already been achieving renewal rates more than 90 per cent, and been leading the CBA across Canada in membership. Our renewal percentages far outstrip “normal” rates of voluntary professional associations in North America. But 96 per cent! And so, I thought it was timely to thank you, and explain why your ongoing contribution is so important. First, the thanks. There are so many volunteers who work hard on our committees, Sections, conferences and forums to further the goals and ideals of the CBA. You contribute your time, your professional energy, and your personal life to meetings, task forces, working groups and numerous other CBA activities. You contribute to initiatives and programs that provide significant benefits to all lawyers and the justice system as a whole. And then there are even more members who express their support by making the decision to renew their membership; enroll for the first time, or return to the fold after an absence when they realize the significance of belonging 4 BARTALK / APRIL 2011
to the CBA. Please note that I didn’t say these members “just” express their support by their membership. I know it is an important commitment; and a financial commitment. Why is it important? It is not about more membership dollars. We are a non-profit organization. Each year we have very hardworking staff working with Caroline Nevin to ensure we have a solid budget, and we stick to it. We will work with whatever budget we have year to year. It is about credibility and clout. Your credibility and clout. When we, as an organization take positions on important issues – important issues to our profession and our justice system, we are well received. We are taken seriously. Not because of the particular eloquence of any individual in our organization who happens to be the spokesperson at that time or place, but because CBA is representative of our profession and is
able to credibly say we speak for our profession. You give us that credibility and clout. That is the message I have taken to our various county and city Bars these past few months, and that is the message I have taken to the managing partners of our largest law firms when I have met with them. And it is a message that has resonated with those I have spoken to. So, thank you, all of you members, volunteers and staff. Thank you for your continuing contribution to the growth of our CBA, and the growth of our credibility – your credibility as lawyers in a strong, representative, professional organization. If there are any of you who wonder why anyone would volunteer or how you can get more involved, I am happy to share with you how personally and professionally fulfilling it has been for me and put you in touch with a like-minded volunteer in your community or firm. Look out for the committee volunteer forms that come with this edition of BarTalk, as that is a very good first step. Once again, thank you, all of you, for your commitment and your contributions.
Stephen McPhee
president@bccba.org
EXECUTIVE DIRECTOR CAROLINE NEVIN
A Convergence of Interests Why “Access to Justice” is such a hot topic.
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omething curious is happening on the way to the election(s) this year… all of a sudden, everyone’s talking about Access to Justice. There are a number of reasons for this, but perhaps the best explanation is that there has been a convergence of events and interests that have led to justice – the administration and funding of justice in particular – becoming a critical topic of public debate. During the recent B.C. Liberal leadership campaign, CBABC wrote to all of the leadership candidates to express the concern of the Bar about the justice system. Justice was included in their subsequent policy discussions, including those of the successful candidate, Christy Clark. We have every expectation that justice will be an important component of policy discussions by the NDP leadership hopefuls. As important as it is to ensure that political leaders and decisionmakers are talking about these issues, the key to this particular moment in time is that this discussion isn’t restricted to any one place in society – everyone is talking. As controversial as they may be in some quarters, public commentaries by the Chief Justices of Canada and B.C. have resonated in the homes of people in places like Golden and Campbell River, who see the reality of the lack of access to justice in their communities. Crown Counsel with unmanageable caseloads are speaking up about the current policy of attrition that provides no replacements for their colleagues who retire, go on parental leave or become judges. The Chief Judge is vocal in his concern about the vacancies in Provincial Court that are – and will continue to – result in cases being delayed too long and therefore being dismissed. And now we have the Report of the Public Commission on Legal
Aid that demonstrates, more clearly than ever, the very personal negative impact that occurs daily as a result of underfunding of legal aid and a lack of multi-service integration to support people of limited means interacting with the justice system. Among the profession, there is relief that the debate is becoming a more public topic. We’ve been talking about this for years, as we’ve watched the system’s cracks become more and more apparent under the strain of doing more with less. And lawyers have done more than anyone will ever know to repair those cracks and hold the system up, because that is the nature of the people who become lawyers. Through both personal and organized pro bono and reduced-fee work, extra hours by Crown, assistance by judges and legal groups to unrepresented litigants, and the work of the Legal Services Society to stretch every dollar further, the legal profession
has done everything in its power to prop up a glorious but struggling system of justice. One growing part of the debate within the profession at the moment, though, is about whether or not we have now reached a point where there is both a real and possibly a moral limit to what can and should be done to protect the public from the reality of what’s going on in their justice system. Given the current state of affairs, it seems likely that there will be a natural, unavoidable exposure to the truth – lawyers, judges, court administrators and community groups will continue to do what they can, but the growing gaps in service will become increasingly apparent and abhorrent to the public. Perhaps then the political debate will move from electioneering stages, courtroom steps and kitchen tables, to serious negotiations at the Treasury Board table. CBABC will continue to ensure a strong voice for the profession throughout, and is taking a leadership role in bringing together key stakeholders for what will likely become a two-day Symposium on Access to Justice later this year.
Caroline Nevin
cnevin@bccba.org APRIL 2011 / BARTALK 5
nothingofficial TONY WILSON
Doppelgangers Two nutbars. Two train wrecks. Two Ronnies. One person.
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he two men most in the news during February and March convinced me that there is a cosmic “connectedness” between people on this planet, and that, in a strange way only Eastern Mystics, Dancing Wu Li Masters, and Landmark Forum Graduates could explain, there isn’t just one of us in the world but two of us; each living our lives in different places and speaking different languages, but more or less being the same person. I am, of course speaking of Charlie Sheen and Muammar Gaddafi; the “Two Ronnies” of 2011. Look at them. Listen to them. They are the same person. Now I’m not saying Charlie is a mass murderer, a tyrant or a Kleptocrat, and he hasn’t bombed civilians or gunned down people in the streets, but when you flip the channels back and forth between Gaddafi and Char-
lie, you’ll see that each of them is babbling the same incoherent nonsense to the cameras (some of it of the anti-semitic variety), each thinks of himself as something more than mortal, and each of them wears very odd sunglasses at inappropriate times. When I see Charlie and Muammar, I see one man, not two of them (or for that matter, not Two and a Half of them either). Just so you know that last paragraph wasn’t one long lead-up to a joke, I do have a point to make about client management. What do you do if you have a client like Charlie Sheen or Muammar Gaddafi? Uncontrollable. Erratic. Self Absorbed. Delusions of grandeur. Drugs, porn stars and ego may be involved in a slow moving train wreck that keeps your mortgage paid. Admittedly, I’ve been on the other side of files against lawyers with the same egocentric personalities and delusions (minus the drugs and the propensity for mass violence), but I’m really talking about the clients here. On the one 6 BARTALK / APRIL 2011
hand, you’re on that train, and that train is filled with gravy for lawyers, accountants, managers and all round fixers. But on the other hand, you can’t stop the train from going off the cliff because someone like Charlie or Gaddafi is driving it. So do you stay on the train as it careens off the bridge into the valley below to crash and burn? Or do you send a message by getting off the train early, and quitting the side-show? That’s what’s happening to both men’s entourages; they’re quitting in droves. One of the problems with client management is the fact that we can’t control our clients, especially the ones that suffer from the condition I’ve called “Affluenza;” too much money for their own good. (You see the disease in affluent suburbs like West Van and Oak Bay where the kids of the überwealthy drive BMW’s to school). Few of us have clients as wealthy as Charlie Sheen, a man who made
$1.2 million per episode of Two and a Half Men. And few of us have clients that are as adept at getting press as Charlie seems to be these days. Every time he was hauled off to jail or rehab for threatening to kill someone, his show’s ratings went up. He’s said things like “I am on a drug. It’s called Charlie Sheen. If you try it once, you will die.” Or “Your face will melt off and your children will weep over your exploded body” (which I actually thought was a quote by Gaddafi). Or “I’m tired of pretending like I’m not a total freakin’ rock star from Mars.” As I write this, Sheen has discovered Twitter, and is in the Guinness Book of World Records for getting one million followers in 25 hours 17 minutes because everyone wants to see the train wreck. Like Muammar Gaddafi, more stupid incoherent ramblings are expected, although in Charlie’s case, they will be limited to 140 characters. However, I don’t expect the Two Ronnies of 2011 to be around this time next year. I expect two train wrecks. People can be stupid in real life and real stupid when they have Affluenza. You can’t fix “stupid” when it’s mixed up with “stupidly rich.” When your clients have Affluenza, sometimes you just have to get off the train. 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
Searching the Deep Web It’s easier than you think.
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he Deep Web or hidden web is estimated to be 500 times larger than the surface web. Its size is astonishing when one considers that Google’s search engines scan eight billion pages. The Deep Web contains information that is located within databases on dynamically generated websites. Most of this untapped information is in the form of medical research, public records and other types of documents that are stored in databases and are not available on static web pages. This enormous resource is not retrieved by traditional search engines like Yahoo! and Google, which utilize crawler programs to gather information online. While this approach works for pages on the surface web, these programs are often unable to penetrate databases that are designed to respond
to specific typed queries. Therefore, those pages do not exist until they are created dynamically from a specific search. There are many websites that provide resources and information on searching the Deep Web. Here are a few websites that will assist you to search the Deep Web. ArchivesCanada.ca is a gateway to archival resources found in more than 800 repositories across Canada. CollectionsCanada.gc.ca is an online resource containing the collections and services of Library and Archives Canada. CompletePlanet.com provides access to more than 70,000 searchable databases and specialty search engines. HeinOnline.org provides content that spans multiple library collections with more than 50 million pages of research material available to subscribers in more than 150 countries. Legaltree.ca publishes resources and literature that are
contributed by lawyers in the Canadian legal community. LibrarySpot.com contains a collection of databases, online libraries, references and other resources. WorldCat.org connects to the collections and services of more than 10,000 libraries. The World Digital Library (wdl. org/en/) provides free access in multilingual format to significant materials from countries and cultures worldwide. DID YOU KNOW? Source: profusion.com (Komalh, February 2, 2011) 107 trillion emails were sent in 2010.
are 1.88 billion email users worldwide. 89.1 per cent of email is spam. There are 2.9 billion email accounts worldwide. There were 1.97 billion Internet users worldwide as of June 2010. There are 152 million blogs on the Internet.
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billion tweets were sent on Twitter in 2010. 600 million people were on Facebook as of December 2010. 20 million Facebook apps are installed each day. MORE INTERNET FACTS 350 million Internet-enabled television sets are expected to be sold worldwide by 2015. (Parks Associates, January 2011) Worldwide tablet sales are predicted to grow by more than 400 per cent over a two-year period, reaching 81.3 million units in 2012. (eMarketer, December 2010) Worldwide Internet traffic grew 62 per cent in 2010. Eastern Europe and India/South Asia experienced the fastest year on year growth where average traffic growth exceeded 100 per cent. (Telegeography, October 2010) Global advertising spent in measured media is expected to exceed $500 billion in 2011. Online ad spend is expected to hit $82 billion. (GroupM, December 2010)
There
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
APRIL 2011 / BARTALK 7
practicetalk DAVID J. BILINSKY
Online Dispute Resolution Solving disputes using the web. And you just gotta move on, Because it’s all Lessons learned ... r – Music and Lyrics by Wendell Mobley, recorded by Carrie Underwood r
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ost lawyers are as yet unaware of the growing discipline known as Online Dispute Resolution (ODR). ODR taps into technology (principally the communication abilities of the Internet) to help resolve disputes between parties. While it is seen as the online equivalent of ADR, it really is much much more. ODR was born by the combination of ADR and Information and Communication Technologies. In ADR, there are
three parties: the plaintiff, the defendant and the third neutral party (a mediator or arbitrator for example). However, ODR differs from this three party system by introducing computers and software – an independent fourth party that can help manage the dispute. Indeed at the highest and most sophisticated levels of ODR, the technology applies mathematical models and algorithms based on group theory to resolve the dispute. www. SmartSettle.com, one ODR e-Negotiation system, states as follows: “As the world’s most advanced negotiation system, Smartsettle Infinity can do what human minds alone cannot – model the problem, manage preference information, and quickly optimize solutions. Infinity supports an unlimited number of quantitative or qualitative issues between any number of parties in any combination of real-time and asynchronous negotiations, whether face-to-face or 8 BARTALK / APRIL 2011
over great distances, anywhere on Earth.” There are, of course, many other implementations of ODR systems, that range from simple blind-bidding systems (one variable, two parties) where the system does not reveal what each person is willing to accept unless a settlement is reached (the software compares each party’s position and declares a settlement once the positions become sufficiently close), to assisted negotiation, to adjudicative methods and others. Is this science-fiction? Not in the least. For example: “The European Consumer Centers Network (ECC-Net) consists of 29 centers in the European Union, Norway and Iceland. Financed by the European Commission and members states, and staffed by individuals trained in law, the network seeks to increase consumer confidence in its internal market. Mr. Knudsen
explained that 40,000 to 60,000 complaints and information requests are typically addressed each year, and that eCommerce complaints outstrip on-premise and non-eCommerce distance sales on an order of 2:1. Approximately half of the complaints the ECC-Net oversee are resolved through mediation.” How important is the field of ODR? It is recognized that low value e-commerce, or sales/purchases conducted over the web, is stalled due to the lack of any effective enforcement mechanism where the purchaser and vendors are in different jurisdictions. Accordingly, the United Nations Commission on International Trade Law (UNCITRAL) has created an ODR Working Group to focus exclusively on a global ODR system for lowvalue eCommerce disputes and to craft recommendations that can be taken back to the full UN General Assembly. This represents a major development in the effort to build 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 GnuCash – A Free and Open Source Accounting Solution for Lawyers These days the legal world seems to be all a flutter about “The Cloud” and cloud computing offerings. While the legal accounting offerings in the cloud appear to be inexpensive, (the cheapest starts at about $50 per user per month), that’s still $600 a year. For those just starting out in practice, especially those who are trying to pay off student loans, that is real cash they simply may not have. Fortunately, there are G’new alternatives centered around Open Source Software. The GNU license allows users to download and use the software, and most of the
time it’s free. Wikipedia reports that open source software has resulted in savings of $60 billion dollars a year to consumers. In other words, while cheap is good, free is better! Do not believe that open source software is somehow second-class. At the 2011 ABA TECHSHOW in Chicago, Rodney Dowell and Dennis Kennedy will demonstrate “The Open Source Powered Law Firm!” This tech (and finance) tip is GnuCash – a free and open source accounting solution for
lawyers (and other individuals and businesses). GnuCash is available for Windows, Mac
and Linux. The GnuCash Help Manual is online and a great resource on how to get started with GnuCash, and PracticeLaw.org lists multiple resources including: “Keeping Trust Accounts with GnuCash 2.4.4.” (this resource is available by emailing daveb@lsbc.org and requesting a copy). The GnuCash software, together with these resources, should present a great alternative for lawyers looking for a solid accounting system at low cost. After all, when you are just starting out (or looking for an alternative to your existing accounting system) a few good and G’new ideas are really what you are looking for…. (Tip originally written by David J. Bilinsky and Laura A. Calloway and appearing in http://tips.slaw.ca/ – a blog devoted solely to tips that are: “Advice you can use – short and to the point – every Tuesday, Wednesday and Thursday.”)
Continued from page 8
a global ODR system, since it is the first time a body with representation from every sovereign nation in the world has so seriously tackled this complex subject. Furthermore, governments are looking at more localized ODR systems for small claims, custody and family disputes, among others. Businesses are looking
at building in ODR to their contracts of sale to provide a low-cost and effective method to resolve consumer disputes. One thing is clear: the world is turning to ODR as a way to bridge distances and time zones and implement a dispute resolution mechanism that will allow e-commerce disputes to be settled
in a way that is just not possible using the current dispute resolution systems that are otherwise too tied to geography, too expensive or too complex for these types of disputes. However, once this type of ODR system is effectively built – it will not be long before it is applied to many other types of disputes, since it will all be lessons learned. APRIL 2011 / BARTALK 9
sections SECTION UPDATE
Young Lawyers Victoria
Keep Current A review of Lorenzo Oss-Cech of HutchiOss-Cech Marlatt preu provincial Section meetings. sentedsonNegotiation Strategies for Young Lawyers Victoria Meeting: November 4, 2010 Speaker: Lorenzo Oss-Cech (photo) Topic: Negotiation Strategies for Litigators
Environmental Law Meeting: November 25, 2010 Speaker: Gil Yaron (photo) Topic: Challenges and Opportunities Associated with Emerging Legal and Policy on Green Building
General Practice, Solo and Small Firm Lower Mainland Meeting: November 16, 2010 Speaker: Joseph Cuenca (photo) Topic: Ways to Get More Business: The Basics of Immigration Law in a Global World
International Assistance Meeting: November 18, 2010 Speaker: Jason Levine (photo) Topic: Working Internationally
10 BARTALK / APRIL 2011
Litigators and discussed several different strategies for different types of negotiation (i.e. multiple parties). The number one rule is that the client makes the decision. Don’t ignore the person who writes the cheque. Remember who your target is. Your role is to provide expertise and cover yourself. Know your role – don’t over step your bounds. Another strategy is mirroring to advance discussion and not use the conjunction “but” as it implies confrontation. Use “and.” Ensure you don’t negotiate against yourself – i.e. make two offers in a row, and don’t negotiate until you know the case. Mr. Oss-Cech believes there is value to having all cards on the table and no surprises. However, timing can be important. In medical malpractice, have opinions ready to serve with pleadings. The new rules permit short-fuse offers, and in his opinion this is beneficial. Reputation is everything. It takes years to build but seconds to wreck it. Don’t become overly vested in your client’s plight – you will work with your colleagues for years. The Bar and the Bench talk – it’s important to ensure your reputation is sound.
Environmental Law Gil Yaron, Senior Business
uand Policy Advisor of Light
House Sustainable Building Centre discussed Challenges and Opportunities Associated with Emerging Legal and Policy on Green Building.
He provided an overview of current policy and emerging issues. The policy driver is climate change. The federal, provincial and local governments have set targets to reduce greenhouse gas emissions. There is an emerging world of green rating systems and certifications. The ones in North America are LEED and EnergyStar. In Canada there is also BOMA Canada and BuiltGreen British Columbia. Mr. Yaron commented that the number of rating systems in the world creates a barrier to advancing as it is not clear which system to follow. American green building ordinances and some Canadian policies governing public buildings have adopted LEED. There is a significant lag time between registration and certification. This has resulted in the City of Vancouver requiring new construction to submit all documentation to achieve LEED Gold without need for obtaining certification. There are administrative challenges facing LEED certification in Canada: 1) delays to certify; 2) market pressures; and 3) conflict between system designer, educator and enforcer (being the same body).
General Practice, Solo and Small Firm Lower Mainland Guest speaker Joseph Cuenca
uof Cohen Buchan Edwards
LLP gave a presentation on the issue of how to attract more immigration law clients in a global world. The presentation discussed the following case studies: increasing numbers of immigrants; legal services in immigration law, including a wide variety of applications for foreign nationals, permanent residents, citizens and also litigation claims, hearings
and appeals; and how to attract clients through networking, Internet and practice development. The presentation also discussed that working with immigration consultants who are not registered with the Canadian Society of Immigration Consultants is not permitted by the Law Society of British Columbia (LSBC) and lawyers should be discussing this matter with the LSBC’s Practice and Ethics Advisor.
International Assistance Jason Levine provided an inform-
uative and interesting electronic and oral presentation on working and teaching internationally. In particular, Mr. Levine discussed the SOROS Open Society Foundation and his work with the American University of Bulgaria. He discussed his positive experiences teaching law students in Bulgaria and encouraged participants to examine teaching opportunities with SOROS. Mr. Levine also discussed the American Bar Association’s (ABA) initiatives to provide legal educators in various international locations such as Egypt and Serbia. He encouraged participants to search the ABA’s website for teaching opportunities abroad and indicated that a Canadian law degree was seen favourably by way of academic credentials with respect to teaching overseas. 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.
SECTION NEWS
Introduction to the Aboriginal Lawyers Forum The newest addition to the CBABC is the Aboriginal Lawyers Forum (ALF). The ALF is a networking and mentoring forum for Aboriginal law students and lawyers. The ALF’s mandate is to facilitate networking, mentoring, professional development, a celebration of Aboriginal culture and building bridges between the Aboriginal and non-Aboriginal legal community. The ALF would like to thank everyone that supported this initiative, in particular Jennifer Spencer, Jennifer Chow, Robert Brun, QC, Susanna Tam, Caroline Nevin and Joanne Silver.
On December 3, 2010, the ALF hosted its Premier Banquet with special guest The Honourable Justice Leonard Mandamin of the Federal Court (pictured above left). The evening included a beautiful Musqueam welcome song sung by Rosalind Campbell, emcee Grant Christoff and the keynote address by The Honourable Justice Leonard Mandamin. For more information, please email cjcook@bilkey.ca.
GO ONLINE FOR MORE INFORMATION
APRIL 2011 / BARTALK 11
features SHELINA NEALLANI AND YUKI MATSUNO
Making the Most of Small Claims Court Mediation Mediate BC’s Court Mediation Program.
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hirteen years strong, the Court Mediation Program (CMP) administers mediations in five provincial Small Claims registries. Attendance at mediation is mandatory for most claims between $5,000 and $25,000 at Robson Square and some claims up to $10,000 in North Vancouver, Surrey, Victoria and Nanaimo. The satisfaction rates of participants are high – not surprising as they are able to reach their own agreements taking into account their interests and needs. Ninety five per cent of participants would mediate again.
SO HOW DOES IT WORK?
Rule 7.4 of the Small Claims Rules applies to Robson Square claims, while Rule 7.2 applies to the other four registries. Once a case is referred to mediation, a Notice of Mediation Session is sent to the parties with the mediation date and registry location. If a party cannot attend the mediation inperson, they may apply at least seven days before the mediation for an adjournment or to attend by phone. The mediators use an interest based mediation model to try to get at the heart of what is really important to the parties. The twohour mediation session is highly focused with four phases: 1) opening, 2) identifying issues, 3) exploring interests, including caucusing with the parties and 4) agreement. 12 BARTALK / APRIL 2011
WHO ARE THE MEDIATORS?
Highly skilled and experienced conflict resolution professionals who are members of the Mediate BC Civil Roster. All have extensive experience mediating cases in Small Claims and are provided with professional development opportunities by Mediate BC.
upsides for your client. Finally, switch gears to use appropriate skills – OUT with crossexamination, discovery and argument; IN with open questions, listening and creative problem-solving. Prepare your client: explain the mediation process and what to expect – your client must attend and probably has no idea what mediation involves. Assess the risks with your client and be flexible during the mediation as information is shared. Take advantage of the opportunity to settle
WHAT DO PARTICIPANTS GET OUT OF MEDIATION THAT THEY DON’T GET OUT OF LITIGATION?
Earlier settlement and greater satisfaction. In this facilitated confidential discussion, the mediator ensures a safe and comfortable opportunity for the parties to express the sometimes intense emotions that are barriers to resolving the dispute. Often mediation sets the foundation for a greater understanding of the dispute, leading to settlement later in the litigation process. Also, it is free to the participants! WHAT CAN COUNSEL DO TO PREPARE FOR MEDIATION? Prepare
yourself: be familiar with the facts and the strengths and weaknesses of your client’s case. Remember in mediation your role is not to be a zealous litigator but a wise advisor. Become familiar with the mediation process and the potential
– more than 50 per cent of cases resolve completely at mediation. MEDIATION AGREEMENTS
When parties reach an agreement at mediation, it is usually drafted, reviewed and signed immediately. The agreement will contain enforcement clauses so that if one or more of the parties fails to abide by the agreement, the court may enforce it. INTERESTED IN TAKING THE SMALL CLAIMS PRACTICUM WITH 10 MENTORED MEDIATIONS?
Practice your mediation skills in the practicum program. Call the CMP office at 604-684-1300. Left to right: Shelina Neallani and Yuki Matsuno, Mediate BC Society.
KARI BOYLE
Innovation in Mediation Through Technology
Start imagining tomorrow.
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ediation is all about innovation. Effective mediators use different approaches for different situations; mediation is flexible and scalable and can be modified to suit various contexts and combined with other processes as needed. Online dispute resolution (ODR) is well-established for e-commerce disputes and is becoming available for more conventional disputes. One of the most exciting innovations is the use of technology tools to increase access to mediation. Did you know that B.C. is on the leading edge of the innovative use of technology in mediation? For example, Mediate BC Society’s Distance Mediation Project Phase 3 launching May 1, 2011 (funded by the Law Foundation of British Columbia) is testing the use of information and communication technologies (ICTs) for family mediation. Yes, family mediation. We know that mediation can be a very effective tool, but what about families in parts of the province without mediators or spouses who reside in different places and can’t afford to travel? The telephone is helpful but it is not enough. An earlier phase of the project found that family mediations can be conducted effectively using ICTs, that some clients prefer distance mediation over traditional face-to-face mediation and that in some cases
it may be more appropriate and effective than face-to-face (two warring spouses don’t have to be in the same room; parties can participate from the comfort of their own home environment; the distance may help to dampen high emotions). The lack of non-verbal communication can be balanced by other strategies such as online caucusing or coaching via email. Imagine a father in Fort St. John participating in an online mediation with a mother in Surrey, conducted by a mediator in Kelowna. The mediation could be synchronous (all online together – in a web or video-conference) or asynchronous (communication one at a time – think email, attachments, voice messages, texting, or instant messaging). Face-to-face mediation can also be combined with the effective use of ICTs. There are a variety of ICTs already available for this purpose, including various web-conferencing platforms, Skype-type communication tools and specialized mediation platforms, including Juripax and The Mediation Room. What about civil disputes? A number of the tools and platforms noted above may be suitable also for civil disputes. In addition, for single-issue financial disputes
there are already fully automated online systems available or in development to facilitate negotiation or, in some cases, mediation, including Smartsettle, ODR Chambers, Cybersettle and ODR India/Modria. In larger urban centres it is not difficult these days to find locations that offer video-conferencing capability to support the mediation process (for a fee of course). Why fly to Toronto to conduct an in-person mediation when you can participate effectively through video-conferencing from the comfort of a local venue? In addition, large screen monitors are replacing whiteboards and flipcharts as effective collaborative work tools in the mediation room. What is next? Perhaps easy-to-use DR tools for your iPhone or iPad! Could you imagine negotiating a deal in 140 character bites (from your sailboat in the Caribbean)? Think about your clients. Consider how the effective use of technology might increase their access to timely resolution at a lower cost. What about your own practice? Could any of these tools enhance your ability to provide effective legal services to your clients while making your job easier? Today’s innovation will be tomorrow’s reality. Imagine! Questions? Contact Kari at kari. boyle@mediatebc.com. For more information about the Distance Mediation Project: distanceproject@shaw.ca. Kari D. Boyle, Executive Director, Mediate BC Society. APRIL 2011 / BARTALK 13
features COLLEEN CATTELL, QC
Problem Solving in Action
Negotiating in estate mediations.
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state disputes provide a textbook example of how people can achieve creative and enduring solutions for themselves if they are surrounded by the right process. They are also a powerful example of how today’s lawyers utilize not just advocacy skills but a multiplicity of additional skill sets to achieve resolution for their clients. The obvious advantages of mediation are well recognized: avoiding the risk and stress of litigation; privacy and confidentiality; speedy resolution; and efficiency in resolving complex layers of issues (both legal and the underlying personal interests at stake), especially with multiple parties. Studies show that parties in dispute prefer mediation for two key reasons: a higher degree of participation in decision-making and the ability to communicate their views to the other side. Stated more forcefully, parties in mediation take control over the process and the outcome rather than relying on the court to impose a decision. It is empowering and most parties are able to do just that with the help of their counsel and the mediator. Most disputes arise because of a communication breakdown. The litigation process only makes it more difficult. Many litigants believe they can’t talk because there
14 BARTALK / APRIL 2011
is a court proceeding, or find it just too difficult once the adversarial process takes over. People come to mediation because they’re stuck. Participating in a mediation session is a process change. The content of the dispute is the same but the process change allows the parties to re-engage differently. It works because the mediator helps the parties to communicate and see the perspective of the other party. Sometimes people just need to try on a new lens, because the one they’ve been using just does not allow for any other views of the world. In estate cases, the participants are families with decades of shared
Parties in mediation take control over the process and the outcome rather than relying on the court to impose a decision. experience together. There is a lot of common ground. One common interest is that most people don’t want to be estranged from each other. When settlements are reached the relief is palpable. In estate mediation, the repair of
past and ongoing relationships is a significant factor and, even when it is not an explicit goal, it flows naturally as an outcome when people are able to communicate with each other. Lawyers use different skills in mediation than when they are presenting a case in court. They need to know the facts and law of their case as if preparing for a trial but the focus is on determining what their client really wants to achieve, which may not coincide with a legal position. Lawyers need to advocate but not in an adversarial way. They will use a form of persuasive advocacy geared to achieving the client’s goal of persuading the group of diverse personalities in the room to come to their desired outcome. It is a complex negotiation, carried out with their clients, that requires analyzing and focusing on what the other side needs are from the negotiation and creating strategies, options, and solutions to get there. Creative outcomes that are not available as traditional legal remedies are another hallmark of estate mediation. Lawyers can bring that creativity, together with analytical skills, legal expertise, a problem solving approach, emotional distance and highly effective communication and negotiation skills to the mediation table for their clients.
Colleen Cattell, QC, C. Med. Is a Mediator with Fitzpatrick & Company and mediates in a number of different practice areas.
NAJEEB HASSAN
What’s All the Fuss About ADR?
Mediation: A pillar of labour law for years.
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uch has been written about alternatives to litigation, which produces winners and losers (mostly losers given the cost, delay and inflexible outcomes). However, for decades, labour lawyers have engaged in mediation and arbitration. Indeed, the Labour Relations Code (the Code) both mandates and enables mediation. Perhaps, mediation has been a cornerstone of labour law practices because clients generally have an ongoing relationship. No matter how difficult or intractable the issues, relationships play an important role in crafting a solution. The Code requires the government to appoint an Associate Chair of Mediation of the Labour Relations Board to ensure the Code values regarding mediation are implemented. The Mediation Services Division at the Board provides conflict resolution services relating to collective bargaining, essential services, grievances, joint consultation and relationship enhancement. The Associate Chair of the Mediation Division has authority to appoint mediation officers to help resolve disputes. Section 2 of the Code imposes a duty on those acting under the Code to promote “conditions favourable to the orderly, constructive and expeditious settlement of disputes” and encourage “the use of mediation as a dispute resolution mechanism.”
COLLECTIVE BARGAINING, ESSENTIAL SERVICES AND GRIEVANCE MEDIATION When parties are unable to reach a collective agreement themselves, they may apply for a Board appointed mediator. The well-respected mediators at the Board have years of experience. In addition, trade unions and employers often agree to one of several private mediators with a well-earned, trusted relationship. Unlike other areas of law, labour mediators, after identifying common ground between parties, frequently suggest specific solutions to bridge differences. It is common for them to engage in shuttle diplomacy, or to meet separately with the parties. Under Section 72 of the Code, the Board designates “essential services.” Typically, the first step is mediation so that the parties can fashion an order that best reflects the business. Failing agreement, the Board, often utilizing an informal adjudication model, imposes essential service levels. One of the most common forums for mediation is the grievance mediation process. Regardless of whether the collective agreement provides for mediation, the Code empowers arbitrators to attempt mediation.
It is common place that mediation “breaks out” following the conclusion of opening statements in an arbitration hearing. In addition, either party may, under the Code, request appointment of a settlement officer. JOINT CONSULTATION COMMITTEE (JCC) AND RELATIONSHIP ENHANCEMENT PROGRAM (REP) Under Section 53 of the Code, each collective agreement must establish a joint labour management committee to discuss resolution of workplace concerns. To assist in resolving grievances at labour management meetings, any party can request appointment of a mediator by the Mediation Division. Upon a joint written request, the Mediation Division also offers the REP program to parties experiencing difficulties in their relationship (http://www.lrb. bc.ca/mediation/relation.htm). In non-union settings, parties are turning to mediators to help them resolve wrongful dismissal disputes. Arbitration clauses are becoming more commonplace. Mediation continues as a progressive workplace dispute resolution model. Mediation and arbitration continues to be the primary method of dispute resolution in labour and employment law.
Najeeb Hassan is a former Vice Chair of the Labour Relations Board and is a partner in Heenan Blaikie’s labour and employment group, where his practice includes the conduct of mediation and arbitration matters. APRIL 2011 / BARTALK 15
feature JOAN BRAUN
Elder Mediation in Canada A look ahead.
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ver the next few years, an important demographic shift will occur. According to the Premier’s Council on Aging Report (Nov. 2006), in less than 10 years there will be significantly more people in B.C. who are over 65 than under 15. According to the 2006 Statistics Canada Report “A Portrait of Seniors in Canada,” by 2031 the percentage of the population age 65 to 74 will increase from 6.9 per cent to 12.4 per cent. As the older population increases, the need for services for this population, including mediation, will also increase. The term “elder mediation” most commonly refers to resolution of issues affecting the older adult population. At this time, Elder Mediation is in its infancy in Canada, whereas Elder Mediation is quite common in the United States. Based on the US experience, examples of issues that can be successfully resolved through Elder Mediation are: Health care matters, estate planning, living arrangements with adult children, assistance with finances or other caregiving issues, conflicts between an older adult and a service provider, access to grandchildren, decisions about moving into assisted living or long term care and guardianship. Depending on the nature of the dispute, the number of participants in a mediation session ranges from one or two others to many. 16 BARTALK / APRIL 2011
For example, if the dispute is about who should provide mom or dad with practical assistance with errands and chores and finances, all potential caregivers may wish to attend. This could include a large extended family and close friends. Due to the potential multi-party aspect of these mediations, it is important for elder mediators to have experience or training in group dynamics. It also is imperative to have a basic understand of aging issues and the unique needs of this population. Although not all elder mediators are lawyers, there often is a legal aspect to elder disputes. Mediators who are not lawyers must be able to identify potential legal issues and to direct participants to seek independent legal advice when appropriate. Training for elder mediators should cover legal issues likely to arise in an elder mediation setting, as these are quite different from those that might arise in other areas of mediation practice. For example, familiarity with issues such as capability, guardianship and advanced planning documents are essential. Lawyers who practice in the area of elder law will be familiar with the legal issues that may arise. However, applying this knowledge to the mediation setting
is not straightforward. Capability fluctuates. An older adult with diminished capacity may be more capable at certain times of day or may be able to make some decisions but not others. For example, an older adult with diminished capacity may be legally capable to make a decision on health care matters but not on finances. It is possible that an adult child may be the substitute decision maker on finances pursuant to a power of attorney and for the older adult to still be capable to make simple health care decisions. An elder mediator must be able to keep track of who has the authority to make decisions in regard to each issue. Additional complexity will be added if there is more than one substitute decision maker present, especially if the named substitute decision makers do not agree with each other. In order to effectively mediate the dispute in a situation such as this it is necessary to be able to manage the complicated family dynamics as well as the legalities. Very often older adults prefer to resolve disputes without going to court, particularly if the dispute is with a family member. Elder mediation provides a promising alternative to court. As the population ages, interest in elder mediation will inevitably grow and therefore now is a good time for lawyers and mediators alike to familiarize themselves with this growing area of practice. Joan Braun, LL.B., M.S.W. is a practising lawyer and a social worker. She is the Executive Director of the B.C. Centre for Elder Advocacy and Support.
Law Week 2011
WWW.BCLAWWEEK.ORG
u 2011 Law Week’s theme, Access to Justice: The Changing Face of Law is sure to entice big crowds and an exciting discussion at our Public Forum with our Chief Justices, Chief Judge and top policing staff. This year, seven locations across British Columbia are participating.
Province-Wide Activities VERNON Saturday, April 16 Events include: A mock trial, RCMP, specialized victims, legal aid, sheriffs, tours of courthouse and cells and a composition competition for elementary and high schools. CRANBROOK Wednesday, April 27 A mock trial will be held at the Key City Theatre at 7:00 p.m. The theatre is donated through the generosity of the Key City Theatre Society. KAMLOOPS Wednesday, April 6 Events include: Cell and vehicle tours by sheriffs, RCMP dogs, RCMP drug and forensic displays, Courthouse Library tour and Billy Miner display, treasure hunt for the kids, community organization displays, ICBC display and mock trial based on Peter Pan. KELOWNA Wednesday, April 13 Events include: Girl Guide arrests and mock trial, RCMP dogs, RCMP motorcycle demonstration, courthouse and cell tours, poster contest and scavenger hunt, community displays and a BBQ. NANAIMO Saturday, April 9 Events include: The Trial of Hansel and Gretel with a real judge, a RCMP lecture, Police K-9 Unit
demonstrations, a panel of two judges and a Crown counsel with questions from the public, a tour of the sheriffs van, resource tables and information and a Wills and Estates Skit with the Big Bad Wolf.
VICTORIA Saturday, April 16 Events include: a mock trial with Harry Potter, Police K-9 Unit demonstrations, a community forum and a Q&A on The Changing Face of Law, tours of sheriff’s vehicles and court cells, the Provincial Mock Trial Competition, resource tables and information, Passport to Justice Treasure Hunt with various door prizes and give-aways and a police presentation on ecstasy. VANCOUVER April 9-16 A Fun Run for lawyers and their families will take place on Sunday, April 10. The Barry Sullivan Law Cup Public Speaking Contest will be held at the Vancouver Art Gallery on Thursday, April 14 and the Dial-A-Lawyer program will take place on Saturday, April 16th. The open house and public forum will also take place on Saturday, April 16 at the CBC Vancouver Building at 700 Hamilton Street. A citizenship ceremony will be held from 10:00 a.m. 11:30 a.m. followed by a public forum at 12:00 p.m. with CBC host Ian Hanomansing. Community legal groups will be set up in the CBC atrium all day! Be sure to come down and take part in this exciting day.
LAW WEEK 2011
Partners and Sponsors PARTNERS
vancouver bar association
SPONSORS
APRIL 2011 / BARTALK 17
news&events EVENT
CBA Canadian Legal Conference: Halifax 2011 Mark the Dates – August 14-16, 2011
NEWS
Foundation for Change
Report of the Public Commission on Legal Aid in British Columbia n Commissioner Leonard Doust, QC released the findings of the Public Commission on Legal Aid on March 8, 2011, detailing nine key recommendations for improving British Columbia’s legal aid system. The CBABC President Stephen McPhee welcomed the Public Commission’s report, saying “The public clearly believes that the issue of access to legal services is one that governments, lawyers, judges and communities are expected to work together to fix. The people of B.C. have loudly and passionately made the case that access to legal services is essential. We know that an investment in legal aid and the justice system saves money in health and social services down the road, and what we now know as a result of the Commission’s work is that taxpayers expect their leaders to make that investment a priority – particularly in tough economic times.” The specific recommendations of the Commission are summarized as follows: 18 BARTALK / APRIL 2011
Legal
aid must be recognized as an essential public service New approaches must be developed to define core services and priorities Financial eligibility guidelines must be modernized and expanded Regional legal aid centres and innovative service delivery must be developed Ongoing public engagement and political dialogue are necessary Long-term, stable funding must be established The legal aid system must be proactive, dynamic and strategic There must be greater collaboration between public and private legal aid service providers More support must be provided to legal aid providers. Read the Public Commission’s \\ full report:
www.publiccommission.org
GO ONLINE FOR MORE INFORMATION
LEARN FROM THE EXPERTS Fulfill your annual CPD requirements with 12 hours of Professional Development in just two days! The program includes three hours of content on ethics, professional responsibility and practice management issues. Networking opportunities abound, with more than 1,000 legal professionals gathered in one place from all across the country. BE INSPIRED Hear from luminaries, including His Excellency the Right Honourable David Johnston, Governor General of Canada; Arianna Huffington, co-founder and editor-in-chief of The Huffington Post; and Simon Sinek, author of Start With Why. BE ENTERTAINED Fiddling sensation Richard Wood, headlines the Opening Night Festivities. Enjoy top musical talent such as Jimmy Rankin at the Monday night Maritime Music Extravaganza. All this and much more! \\ Watch for further details.
www.cba.org/halifax2011
NATIONAL NEWS
EVENT RECAP
Mid-Winter Meeting 2011 Reports, Campaigns and Resolutions With the icy waters of the St. Lawrence River as a backdrop, CBA Council members gathered in the Charlevoix region of Quebec February 18-20 for the 2011 MidWinter Meeting. Highlights of the meeting include:
n Interim guidance provided on joint policy statement and audit inquiries under IFRS. \\www.cba.org/CBA/jointpolicystatement/main/
n A panel on Northern Issues featured speaker Prof. Michael Byers of University of British Columbia who joined fellow panellist, The Honourable Justice John Vertes, of the Supreme Court of the Northwest Territories and moderator CBA President Rod Snow, via Skype. Read “Northern Exposure” \\ in National Magazine: http://cbanational.rogers.dgtlpub.com/2011/2011-02-28/pdf/ Northern_Exposure.pdf
n Federal Deputy Minister of Justice Myles Kirvan described the federal government’s commitment to access to justice and Fetal Alcohol Spectrum Disorder (FASD).
n Jack Innes, QC of Halifax won the 2011 CBA Doug Miller Award. www.cba.org/CBA/ \\ News/2011_Releases/2011-0222-DougMiller.aspx
Jack Innes, QC, (right) receives the Doug Miller Award from CBA President Rod Snow.
resolutions. www.cba.org/CBA/ \\ resolutions/2011res/
Artists’ Legal Outreach ALO) is a group of volunteer lawyers and law students committed to working with artists and arts organizations under the direction of Martha Rans (artistslegaloutreach. ca). Martha, a charity and nonprofit lawyer, teaches copyright at Emily Carr, and is presently Project Lead of Creative Commons Canada. The ALO began as APLAWS, the creation of the late Burt Harris. In March, with CARFAC-BC, ALO
n The CBA says that recent criticism of judges and courts by the federal Minister of Citizenship, Immigration and Multiculturalism will erode public confidence and weaken the administration of justice. “Your public criticism of judges who follow the law but not the government’s political agenda is an affront to our democracy and freedoms,” said CBA President Rod Snow of Whitehorse in a letter dated February 22, 2011, to Immigration Minister Jason Kenney. The CBA letter received extensive coverage in the media following its release. News release and letter: \\
www.cba.org/CBA/News/2011_ Releases/2011-02-22-Kenney.aspx
n Council debated policy
NEWS
n The Artists’ Legal Outreach (the
CBA Criticizes Immigration Minister’s Comments About Judges
gave eight workshops across B.C. on copyright for visual and media artists. In December, ALO published the first of their Copyright Toolkits for artists. This spring ALO is presenting Estate Planning for Artists with the Burnaby Art Gallery. This fall, ALO is organizing a series of art exhibits/dialogues around copyright and the impact of digital technology called Art, Revolution and Ownership.
NATIONAL NEWS
2011 Edition of CBA Advocacy Now Online n The latest edition of
Canadian Bar Advocacy, published annually by the Legislation and Law Reform Committee, is now available online. Read about CBA policy positions on solicitor-client privilege and conflicts of interest, as well as trends in business development and professional interests, access to justice, and improving the law and the administration of justice. A limited number of hard copies are available through your CBABC.
Canadian Bar Advocacy: \\
www.cba.org/CBA/Advocacy/pdf/ CBAAdvocacy2011-eng.pdf APRIL 2011 / BARTALK 19
news&events FEATURE
Clinical Mediation Training at UBC n Since 2001, the UBC Faculty of
Law has partnered with Mediate BC to offer law students a unique experience in Small Claims Court mediations. Each year, up to 24 students take part in an intensive five-day training program that prepares them to participate as mediators in the Court Mediation Program at Robson Square, Surrey and North Vancouver Provincial Courts. Cases typically include personal injury, construction, strata disputes, contract disputes, wrongful dismissal actions and neighbour disputes, often ranging into high emotion matters, multi-party disputes and complex legal issues. The program allows law students to develop communication skills valuable not only in mediation advocacy but also in client counseling and negotiation, and to gain new perspectives on the role of counsel
NEWS
CLEBC Update CLEBC PLANS FOR NEW INCAPACITY LEGISLATION The incapacity provisions of the Adult Guardianship and Planning Statutes Amendment Act, 2007, are scheduled to take effect on September 1, 2011. Changes include the introduction of advance directives for health care decision making, a detailed framework relating to enduring powers of attorney, and revisions to representation agreement legislation. Other provisions, such
20 BARTALK / APRIL 2011
in negotiations, mediator ethics, and the impact of culture and power dynamics. Students have the opportunity to observe and learn from counsel who work to help the client achieve a result that meets the client’s interests. At the same time, students also learn by seeing lawyers who attend Small Claims mediations without reading the Rules governing the mediation session, lawyers who haven’t prepared themselves or their client for the process, and lawyers who see mediation as a chance to scare unrepresented opponents. While most graduates of the Mediation Clinic work primarily as lawyers following their graduation from law school, some members of every class have completed their mediation training and joined the Mediate BC rosters in both civil and child protection areas, many
as those relating to adult abuse and neglect legislation and to health care consent legislation, will also be implemented on September 1, 2011. The adult guardianship provisions of the Act are not being brought into force at this time. Work is now well underway at CLEBC to educate the profession about these important changes. We will offer a course in June Co-Chaired by Hugh McLellan and Jay Chalke to address these developments. Look for a CLETV program as well. An overview and the full text of the amended legislation and regulations appears in Annotated Estates Practice 2011 (published
making a career in the mediation field. In fact, one early graduate, Kyra Hudson, is now Program Manager of the Child Protection Mediation Practicum. Two members of the first class of UBC law students mediators, Peter Eastwood and Philip Di Tomaso, were central figures in the launch of the CoRe Conflict Resolution Clinic. Similar in concept to LSLAP, CoRe Clinic is now a registered charity that provides mediations for low income individuals and not-for-profits while providing additional mentored mediation experience to graduates of the Mediation Clinic. The CoRe Clinic welcomes referrals of matters in a wide variety of areas, including cases that may not be cost effective to litigate. For more information on CoRe, see www.coreclinic.ca.
in May). The 2011 update to BC Estate Planning and Wealth Preservation (also published in May) also includes detailed coverage of the changes. Wills Precedents: Annotated Precedents, updated in February 2011, discusses the legislation, and the next update of that book will fully incorporate it.
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.
LEGISLATIVE UPDATE
ACTS IN FORCE Current from January 1 to February 22, 2011 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. ADULT GUARDIANSHIP AND PLANNING STATUTES AMENDMENT ACT, 2007, S.B.C. 2007, C. 34 (BILL 29) Section 1(k) as it enacts the definitions of “attorney,” “enduring power of attorney,” “financial affairs” and “power of attorney,” the Act except for: the remainder of section 1(k), sections 1(b) and (c), 4, 5, 15, 18, 31(b), 33, 67, 73, 82, 94 to 97, 100 to 103, 105(a), and 110(b) and (c), section 17 as it repeals section 62 of the Adult Guardianship Act, section 17 as it enacts sections 62, 62.1, 62.2(2), 62.3 and 63(2) (a) to (r) and (3) to (6) of the Adult Guardianship Act, section 29 as it enacts section 19.92 of the Health Care (Consent) and Care Facility (Admission) Act, section 31(a) as it enacts section 34(2)(n) of the Health Care (Consent) and Care Facility (Admission) Act, section 91 as it amends section 282(2) of the Land Title Act and section 99 as it enacts section 9(1)(b) and (c) of the Partition of Property Act, all effective September 1, 2011 ARMOURED VEHICLE AND AFTERMARKET COMPARTMENT CONTROL ACT, S.B.C. 2010, C. 8 (BILL 16) The Act is in force February 1, 2011 FORESTS AND RANGE STATUTES AMENDMENT ACT, 2010, S.B.C. 2010, C. 11 (BILL 7) Sections 3 and 5 are in force February 18, 2011 MISCELLANEOUS STATUTES AMENDMENT ACT (NO. 2), 2010, S.B.C. 2010, C. 6 (BILL 11) Sections 147, 163(b) and 164 are in force September 1, 2011. Sections 1 to 6 are in force April 1, 2011. MISCELLANEOUS STATUTES AMENDMENT ACT (NO.3), 2010, S.B.C. 2010, C. 21 (BILL 20) Sections 158 to 171 are in force April 1, 2011. Section 117 is in force February 11, 2011
BRANCH & BAR
Calendar
APRIL 5
Medicine and Morals
7-8 International Conference: Law is for All in Santiago, Chile 11
CBABC PD Joint Seminar: Social Media & Professional Conduct
12
NWBA Young Lawyers Meeting
MAY 4
2011 Lawyer Show
12
CBABC Executive Committee Meeting
EVENT
CBABC Women Lawyers Forum Education Day 2011 n The CBABC Women Lawyers Forum and its Education Committee is planning another all day informative and inspiring event called Building Your Blueprint for Success, on Friday, May 13, 2011 at the Four Seasons Hotel. Most of us should, but have not, asked ourselves the following questions since we became lawyers: How do I take my practice to the next level? How can I create a niche for myself so that I can do the work I really love to do? How do I make room for priorities or to take on new challenges? As a result, we get overwhelmed, find ourselves in limbo, or spin our wheels because we don’t know where it is we want to go. The workshops in Building Your Blueprint for Success can help you answer these fundamental questions, which will be of immense benefit to your career and practice. The WLF’s Education Committee has lined up a group of knowledgeable coaches experienced in helping lawyers: Linda Robertson
and Helena Clift will offer tips to assist attendees to define their own success; Jennifer McNaught and Diane Ross will provide the tools to help improve communications with clients, colleagues and other counsel; and Allison Wolf will equip attendees with the strategies needed to sustain energy and creativity and to open up time in busy schedules! This event has been approved for two hours of CPD credits for the ethics and practice management component of your 2011 Law Society reporting. This event provides an opportunity to network with colleagues while exploring your own priorities, goals and boundaries as you develop your personal blueprint for success. Mark your calendars for May 13, 2011, and watch for more details and registration information for this event. The number of participants in this event will be limited. You do not want to miss this year’s CBABC WLF Education Day! APRIL 2011 / BARTALK 21
news&events NEWS
SERVICE
Courthouse Libraries BC
Family Law Advice Only a Phone Call Away
Extended WiFi With branches in Kamloops, Kelowna and Prince George now offering free WiFi, in addition to North Vancouver, Vancouver and Victoria, Courthouse Libraries BC has heralded in 2011 with more digital offerings to support B.C. lawyers in practice. WiFi will soon follow in New Westminster, Nanaimo and the Barrister’s Lounge at 222 Main.
After only three months of service, legal aid’s new family law telephone advice service has been a positive experience for clients and lawyers. “It saved my life,” says a recent client who called the service, which is known as Family LawLine, and spoke to one of the legal aid lawyers. “[The lawyer] gave me some information, I used it and everything worked out 100 per cent,” the client said. “Within two days, I had my issues worked out – he did a really good job.” Kenyon McGee, one of six lawyers providing advice for the service, says he has received a lot of positive feedback from clients. “Our clients seem to be extremely satisfied,” says
Quicklaw Long awaited, Quicklaw, with quantum and precedents databases, is now under license in many branches (visit http://bit. ly/CLBC-QL for details). Give Your Two Cents, Win a Kindle™ The Library wants your input on how it supports and informs lawyers through free CPD training offerings and more lawyer-oriented content on www.courthouselibrary.ca. Fill out the web survey at http://svy.mk/theclbc for your chance to win a free Kindle™ e-book reader. Stay in Touch and Get Updates Call the Library at 1-800-665-2570, connect with the Legal Community Liaisons, Nate (nrussell@courthouselibrary.ca) and Meghan (mmaddigan@courthouselibrary.ca), add RSS feeds, or follow @theCLBC on Twitter.
McGee, whose practice is based in the small Kootenay community of Winlaw. “A lot of these people are worried, frightened and don’t know where to turn. At the end of the call, they’re calmed down and pointed in the right direction.” The Family LawLINE provides “next step” advice about family law issues such as custody, access, guardianship, child support, spousal support, property division, family agreements, adoption and court procedures. The Legal Services Society’s (LSS) contracts with lawyers, who have remote access to the service, to provide the advice. The LawLine is available every weekday from 9:00 a.m. until 12:00 p.m. through the LSS’s call centre 604-408-2172 (for Greater Vancouver) and 1-866577-2525 (no charge, elsewhere in B.C.).
Mediation TIP Bring Your Client to Mediation! Client participation in the mediation is the key to settlement. While lawyers provide needed legal advice, usually the clients were directly involved in the dispute and want to tell their story directly in the mediation. Remember, in Small Claims mediations a lawyer cannot appear on behalf of a client – if that happens, the mediation won’t proceed and the client will be noted absent, resulting in a default order or dismissal of the claim. COURTESY OF 22 BARTALK / APRIL 2011
MEDIATE BC SOCIETY www.mediatebc.com
grantsapproved LAW FOUNDATION OF BRITISH COLUMBIA
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 42 programs and projects: Funding totalling $1,007,000 was approved for the following 17 continuing programs: $75,000 NEWTON ADVOCACY GROUP SOCIETY Poverty Law Advocacy Services $75,000 NORTH SHORE COMMUNITY RESOURCES SOCIETY Legal Advocacy Program $75,000 SHARE FAMILY AND COMMUNITY SERVICES Poverty Law Advocacy Program $75,000 MAPLE RIDGE/ PITT MEADOWS COMMUNITY SERVICES Poverty Law Advocacy Program
$75,000 NANAIMO CITIZEN ADVOCACY ASSOCIATION Legal Advocacy Program $71,500 LAW SOCIETY OF BRITISH COLUMBIA CANLII Virtual Law Library $70,000 B.C. FREEDOM OF INFORMATION AND PRIVACY ASSOCIATION Law Reform and Public Legal Education Program $70,000 QUESNEL TILLICUM SOCIETY Poverty Law Information Worker Program $65,000 SOUTH PEACE COMMUNITY RESOURCES SOCIETY Legal Advocacy Program UNIVERSITY OF VICTORIA $60,000 – Graduate Scholarships 2011/2012 $58,000 – Entrance Scholarships 2011/2012 $27,500 – Legal Education and Research Projects 2011/2012 $55,000 UPPER SKEENA COUNSELLING & LEGAL ASSISTANCE SOCIETY Advocacy Program $50,000 MULTIPLE SCLEROSIS SOCIETY, B.C. DIVISION Volunteer Legal Advocacy Program
$50,000 SALVATION ARMY BELKIN HOUSE Pro Bono and Justice Services $35,000 PRINCE RUPERT UNEMPLOYED CENTRE SOCIETY Advocacy Program $20,000 DEBATE AND SPEECH ASSOCIATION OF B.C. Law Foundation Cup 2011 Funding totalling $303,410 was approved for the following four grants: $102,000 PIVOT LEGAL SOCIETY Poverty Law Clinic $96,410 B.C. COALITION OF PEOPLE WITH DISABILITIES CPP – Disability Program and Reception/Intake Coordinator $75,000 VERNON WOMEN’S TRANSITION HOUSE SOCIETY North Okanagan Legal Advocacy Project $30,000 FOUNDATION FOR LEGAL RESEARCH Legal Research Project
For full details of \\ the programs and projects that received funding, please visit www. lawfoundationbc.org.
New Appointment The Board of Governors of the Law Foundation is pleased to announce that Warrren B. Milman has been appointed as a B.C. Branch of the Canadian Bar Association, Appointment to the Law Foundation Board of Governors for a three-year term. Mr. Milman is a partner in the Litigation Group of McCarthy Tétrault, Vancouver where he practises in the area of commercial litigation, with a focus on insolvency. Mr. Milman joined McCarthy Tétrault in 1992. He received a BA (1985), an LL.B. (1992) and a BCL (1992) from McGill University. Mr. Milman was called to the British Columbia and California Bars in 1993. He is a member of McCarthy Tétrault’s Pro Bono Committee and was formerly President and Chair of Pro Bono Law of B.C. and Vice Chair of Access Pro Bono. He has also served as legislative liaison for the Class Action Section of the Canadian Bar Association.
APRIL 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 Continuing Professional Development (CPD) hours.
Conferences
registration form is included as an insert in this publication.
THE 6TH ANNUAL CBABC BRANCH CONFERENCE
Attendance at all 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 B.C. reporting:
TO
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LEX VEGAS II Return to Las Vegas
Date: November 18-20, 2011 Speakers: Variety of B.C. and US speakers Location: Las Vegas, Nevada Details: Complete all 12 of your 2011 CPD credits, including the two hour required professional responsibility and ethics, client care and relations, and practice management component. Don’t miss out! Last year’s popular CBABC Annual Branch Conference in Scottsdale sold out quickly. Mark your calendar and register early to avoid disappointment! Conference
Upcoming Seminars/Webinars
The CBABC presents: BILL 29 Speakers: Tino Di Bella, Jawl & Bundon; Fiona Hunter, Horne Coupar; Hugh McLellan, McLellan Herbert; Stan Rule, Sabey Rule LLP; Stuart Rennie, Legislation and Law Reform Officer, CBABC Date: May 25, 2011 Time: 11:30 a.m. - 1:30 p.m. Location: Webinar
The B.C. Courthouse Library and the CBABC present: LEGAL RESEARCH
The CBABC presents: Full Day Seminar: ADVANCED CLIENT RELATIONS SKILLS FOR ATTORNEYS (six CPD hours)
Speakers: Catherine Best, Boughton Law Corporation; Meghan Maddigan, Courthouse Libraries BC; Gregory Pun, Alexander Holburn Beaudin & Lang LLP; Stuart Rennie, Legislation and Law Reform Officer, CBABC Date: May 3, 2011 Time: 11:30 a.m. - 1:30 p.m. Location: Webinar
Speaker: Cal Sutcliff, President, Cal Sutliff Associates Date: July 8, 2011 Time: Registration 8:30 a.m., Course: 9:00 a.m. – 4:15 p.m. Location: Westin Bayshore – Cypress Room, 1601 Bayshore Dr. Vancouver, B.C., V6G 2V4
\\ Don’t forget to visit our new 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
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 and Jobs. Visit the CBABC website for links to various activities and promotions on the MEMBER SAVINGS page under MEMBERSHIP. CANUCKS PLAYOFFS: Canucks Playoff tickets will be available soon. Please send an email to members@bccba.org \\
to be included in the email distribution list.
THE BUGATTI COLLECTION: Bugatti makes a good case for the legal profession. All bags are sized for laptops \\
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24 BARTALK / APRIL 2011
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APRIL 2011 / BARTALK 25
barmoves Who’s Moving Where and When McQuarrie Hunter LLP
Scott T. Johnston
law firm opened for business in January 2011 from their new Surrey offices in the Central City Tower. They are now the largest law firm in Surrey.
has joined Campbell, Burton & McMullan LLP and brings 10 years of experience as a corporate/commercial and real estate solicitor to the Fraser Valley.
Vivienne H. Stewart
Yaro Gavrylko
has left NewPort Law Corporation in Port Moody to launch Railtown Law Corporation in Vancouver. Focus on general and commercial litigation and family law.
completed his articles at the WestPoint Law Group. His primary focus is on litigation, personal injury, criminal and family law. Yaro completed his LL.B. at the University of Manchester, UK in 2005.
Angela Austman
Timothy Louman-Gardiner
is now a partner with McCullough O’Connor Irwin LLP. Angela’s practice is focused on mergers and acquisitions and corporate finance of both public and private entities principally in the resource sector.
has joined Farris, Vaughan, Wills & Murphy LLP’s Vancouver office as an associate in the firm’s Litigation and Alternative Dispute Resolution groups, practising in the area of corporate and commercial litigation.
Mia Bacic
Brian Yaworski, QC
is now a partner with McCullough O’Connor Irwin LLP. Mia practises in the area of corporate and securities law.
has been appointed to the partnership of Davis LLP. His practice spans energy and infrastructure, banking, aboriginal, corporate and commercial law.
Tammy Donovan
Roger MacLeod
has joined McCullough O’Connor Irwin LLP as an associate.
has been appointed to the partnership of Davis LLP. Roger has extensive experience in corporate-finance and securities transactions.
26 BARTALK / APRIL 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
Tudor Carsten has been appointed to the partnership of Davis LLP. Tudor practises primarily civil litigation, with a focus on fraud recovery. He also advises clients on issues relating to cyberlaw.
Amy Pressman has been appointed to the partnership of Davis LLP. Amy specializes in civil and commercial litigation and environmental law.
January & February 2011 Regular Members David Claassen
Borden Ladner Gervais LLP Vancouver Trevor R.C. Cumming
Shapiro Hankinson & Knutson Law Corporation Vancouver Betty P.Y. Lin
North Shore Law LLP North Vancouver Donald J.G. MacKinnon
Hamilton Duncan Armstrong & Stewart Law Corporation Surrey
Jonathan B. Maryniuk
Jessica England
Mickelson & Company Law Corporation Vancouver Nathan Kim
Blake, Cassels & Graydon LLP Vancouver Carlos Mendes
Davis LLP Vancouver
Keyvan Monsef
Blake, Cassels & Graydon LLP Vancouver Ibironke Olorunojowon
Julia Herzog Law Office Victoria
Kuhn & Company Abbotsford
Priyan Manoj Samarakoone
Lisa Slater
Troy McLelan
has been appointed to the partnership of Davis LLP. Lisa maintains a broad family law practice, including all matters relating to division of property, trusts, common-law relationships, child and spousal support.
Jennifer Trotti
Amanda O’Leary
Jon M Duncan Law Corp. Prince George Manika Rajan Matthew G. Scott
Smart, Harris & Martland Vancouver
Peter R. Senkpiel
Elaine Tham formerly of CHC, has joined Davis LLP as an associate. Ms. Tham joins the Securities & Corporate Finance Practice group. She practises corporate and commercial law.
Nathanson Schachter & Thompson LLP Vancouver Emmanuel A. Witzman
MacLean Family Law Group Vancouver
Articling Students Christopher Mackie joined Mayland McKimm & Associates in Victoria as associate counsel. His practice is litigation based, focusing on criminal law. He also practises in the unique area of heraldic law.
Christiana Etema Adiele Anelize Aguiar
Vancouver
Moira Aikenhead
Bull, Housser & Tupper LLP Vancouver
Whitney Derber
Richmond Burnaby
Megan Tweedie Jamieson D. Virgin
McMillan LLP Vancouver
Amita Vulimiri Hila Wesa
Blake, Cassels & Graydon LLP Vancouver
Law Students Evelyn Chan Camille Chisholm
Vancouver
Morgan Elander
Vancouver
Camille IsraĂŤl Riley Kearns
Burnaby
Anna Novacek
Vancouver
Molly Shamess
APRIL 2011 / BARTALK 27
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