BarTalk | April 1989

NEWSLETTER OF THE CANADIAN BAR ASSOCIATION, B.C. BRANCH APRIL,1989 VOLUMEl NUMBER3

HIGHLIGHTS JOINT ANNUAL MEETINGS LAW WEEK LEGISLATIVE UPDATE BONITA f. THOMPSON

Joint annual meetings

1989. Comparative figures for 1988 are given in brackets.

For the first time in living memory the Law Society of B.C. and the B.C. Branch of the Canadian Bar Association will hold their joint annual meetings on the same day. The annual meeting of the B.C. Branch will be held during the morning of Friday, June 23, 1989, and Provincial Council will meet in the afternoon.

Total number of members in good standing- 6,185 (6,002) .

Of this total 4,885 (4,690) are insured and 1,300 (1,312) are exempt.

The Law Society will schedule its annual meeting to begin at the noon hour on the same day and the Law Society expects its meeting would terminate by early afternoon. The Law Society will provide a light lunch for members attending the meeting.

3,719 Vancouver Victoria 566 222 Nanaimo 694 Westminster 101 Kootenay 350 Yale 170 Cariboo Prince Rupert 66 Out of Province 297

More details of the joint annual meetings will be forthcoming from both the B.C. Branch and the Law Society. It is expected that formal notice of both meetings will be in the mail by early May. The Meridien Hotel in Vancouver will be the site for the meetings. Members may attend the joint annual meetings without payment of any registration fee.

Mark your diaries and plan to be at the annual meetings.

MEMBERSHIP FACTS

Membership facts SECTIONTALK SHELLEY BENTLEY

BarTalk is indebted to Jenny Sandford of the Law Society for supplying the information set out in this article.

Except as noted membership figures are as of February 6,

Total number of retired members- 146 (140).

Breakdown of Law Society members in good standing by county: (3,636) (553) (227)

(172) (64)

(260)

As of January 19, 1989, there were 1,190 (19.4%) female members in good standing and 4,961 (80.6%) male members in good standing. As of April 6, 1988, there were 1,125 (18.7%) female members in good standing and 4,880 (81.3%) male members.

A breakdown of members in good standing by year of call is as follows:

113 340 689 2,348 2,661

As of January 19, 1989, the number of members in private practice were 4,841 (78.8%) and 1,310 (21.2%) were in other categories, e.g., employed by government, private business, societies, retired or out of province. As of February 10, 1988,4,660 (70.3%) members were in private practice and 1,289 (21.7%) fell into other categories.

(641)

(105) (344)

The figures in brackets represent totals as of March 18, 1988. Note the net loss in Nanaimo, Kootenay and Cariboo counties.

1950 or before 1950-1960 1961 - 1970 1971 -1980 1981 to date

were called to the bar during the period 1971- 1980. Eighty-one percent (80%) of members in good standing have been called since 1971.

(122) (366) (711)

(2,380) (2,423)

Of the 6,151 members in good standing, 43% (40.4%) were called to the bar since 1981.

Thirty-eight percent (39.6%)

Nominations deadline As noted in the March issue of BarTalk, the deadline for filing nominations for election of members to the National and Provincial Council is April 24, 1989. Members considering running for Council should make sure that their nomination papers are received at the B.C. Branch office on or before April 24.

If you are interested in running

and have misplaced your nomination papers, get in touch with the Executive Director, Robert Smethurst.

President's report

The Midwinter meeting of the National Council of Jim Vilvang theCBA was held this year on February 25-28, 1989, at the Banff Springs Hotel. The meetings were well attended and the debates on a very heavy agenda were productive. Many of the items dealt with at Banff will be fully reported in The National newspaper, but I would like to highlight a few developments now.

The Directors and Trustees of the Law for the Future Fund met at Banff and the first two major projects sponsored by the Fund are now underway. One is a task force on alternate dispute resolution, which will be chaired

by Vancouver lawyer, Bonita Thompson. Ms. Thompson was instrumental in establishing the International Commercial Arbitration Centre in Vancouver and served as its first Executive Director. While she has returned to private practice, she continues to be very active in making the public and the profession aware of the usefulness of ADR. Barbara Nelson, Past President of the B.C. Branch, will chair a national Action Committee on court costs and delays. I believe we will soon come to appreciate the vital importance of the Law for the Future Fund as a major resource of the CBA in providing necessary funding to assist the Association with major law reform and legislative initiatives.

National Council also heard at Banff that more progress has been made in implementing many of the recommendations of the Leckie Task Force Report on the Operations and Structure of the CBA. The main thrust of the recommendations is aimed at

making the national Association more relevant to the membership.

A Corporate Counsel Conference within the CBA structure has been established to ensure that the CBA remains as a unified voice for all lawyers in this country.

National Council also endorsed recommendations which recognized the fact that the national sections are the life blood of the Association and the national section program is being greatly strengthened.

the House (that is, they are in their final form, have been ~ passed by the Legislative Assembly and are simply awaiting Royal Assent).

J

Regulations to note Company Act, B.C. Reg. 402/81, is amended to provide that s. 197 of the Company Act does not apply to a reporting company that is a reporting issuer under the Securities Act. Section 197 requires a reporting company to send to its members interim financial statements in specified circumstances. effective February 13, 1989

Legislative update The Legislature will be sitting by the time you are reading this report. In the next few months the Government will be introducing new legislation. You may find it very useful to ensure that you have immediate access to the proposed bills as soon as they are given first reading in the House.

This information- even at a preenactment stage - will allow you to advise your clients of new law or amendments to the law which may affect their businesses. This enables clients to react quickly to the proposed legislation, particularly if it could have a negative impact on their affairs. Members of the Legislative Assembly are very interested in hearing the views of their constituents when legislation is introduced.

This early warning will also enable you to take proposed law into account when advising your clients in managing their day to day affairs.

If you wish to obtain copies of the "First Reading Bills" as soon as they are introduced in the House, please contact Crown Publications in Victoria at 3864636 who will supply you with these Bills at a minimum cost of $1.10. You may also request copies of the Bills as soon as they have received Third Reading in

Offence Act, B.C. Reg. 274/86, the Ticket Administration Regulation, and B.C. Reg. 272/86, the Ticket Information Fines Regulation, are amended. The amendments deal with offences under the Water Act. effective February 13, 1989 and February 14, 1989, respectively

Farm Income Insurance Act, B.C. Reg. 394/79, is amended and new Schedules B12 and B13 a. added being Guidelines for B.C. Processing Vegetable Producers and Farm Income Insurance Plan -for beans and corn, respectively effective January 1, 1989

and Schedule B6 for beef producers. effective February 24, 1989

Guaranteed Available Income for Need Act, B.C. Reg. 479/76, is amended by adding to the list of matters deemed not to be assets for purposes of determining eligibility, the individual redress payments granted to persons of Japanese ancestry by the Government of Canada. effective February 21, 1989

Horse Racing Act, B.C. Reg. 62/70, is amended in several respects providing, inter alia, the ability to hire persons under the age of 15 years, establishing a minimum scale of jockey fees . effective February 21, 1989

The Honourable Madam Justice Prowse makes recommendations regarding custody reports In the Vancouver Family Law Subsection meeting Madam Justice Prowse noted that while there are few complaints from the judiciary about the contents or quality of custody reports, there are problems of delay in receiving them. This prejudices the non-custodial parent and the children.

Counsel were urged to clarify with family counsellors the nature and length of the report required prior to seeking a court order involving counsellors.

This would alleviate the problem of lengthy reports which unnecessarily deal with every allegation made by one parent against the other.

Madam Justice Prowse noted that while preferences amongst judges vary, her preference was for specific recommendations regarding custody and access terms in a report.

Construction subsection recommends amendments to Builders Lien Act Among the suggestions put forward to solve current problems with the Builders Lien Act are establishing a minimum monetary value of a lien of $100.00, imposing stiff penalties for filing false or inflated liens, changing the definition of "substantial performance", establishing a uniform period for filing liens and for paying out hold backs, forcing owners to deposit 10% of every advance of funds into a

holdback account, and limiting those who can file liens.

The subsection recommends the imposition of penalties including discretion to award solicitor own client costs, damages, punitive damages and up to double costs against the party who knowingly files a false or inflated lien.

The proposed change to the definition of "substantial performance" would include the following clause: (2) For the purposes of the Act, a prime contract shall be deemed to be completed or substantially performed where (a) the improvement which is the subject of the prime contract is ready for its intended use or is being used for the purpose intended, and (b) the work remaining to be done under the prime contract is capable of completion of correction at a cost of not more than: (i) 3% of the first $250,000.00 of the contract price, (ii) 2% of the next $250,000.00 of the contract price, and (iii) 1% of the balance of the contract price.

It is also recommended that the period within which to file liens and the date for paying out the holdback be uniform for all workers, material men, contractors, subcontractors, owners, strata lot purchasers, horne purchasers and that the period for filing liens should be 30 days (and 41 days for holdback payout) after the determination of substantial performance or of abandonment of improvement.

In the event of a sale of a new or renovated horne or strata lot the holdback should be 10% of the value of the improvement and

the vendor should be required to provide a statutory declaration setting out the contract value of the construction and the date of substantial performance.

A trust account should be established by an owner and used to deposit 10% of every advance of funds from the owner on account of construction to ensure that there will be money to pay lien claimants at the end of a job. The penalty for not opening such account would be personal liability of the owner for any short fall from 10% of the contract price.

Architects, engineers and interior designers were listed as those who should not have the right to claim liens.

B.C.C.A. clarifies meaning of "subject to purchaser arranging satisfactory financing" The issue decided by the B.C. Court of Appeal in Griffin v.

Martens (No. CA007710, Vancouver Registry, May 31, 1988) was whether or not the "interim agreement" was void for uncertainty as a result of the following subject condition: "Subject to purchaser being able to arrange satisfactory financing on or before Friday, May 31, 1985, at 6:00p.m. This subject is for the benefit of the purchaser and shall be removed in writing on or before 6:00p.m., May 31st, otherwise this offer is null and void."

The Court expressed the view that if such clauses in interim agreements have ascertainable meanings then courts should strive to find them. The Court found that the above mentioned clause meant that the purchaser was committed to using his best

efforts to obtain financing that was "satisfactory." The Court held that the term "satisfactory financing" meant financing "satisfactory to a reasonable person with all the subjective but reasonable standards of the particular purchaser." This test was stated to be substantially identical to the test that "satisfaction should not be unreasonably withheld."

Commenting on this decision in the Vancouver Real Property Subsection, Ian Cassie noted that this case makes it clear that when this subject clause is used it is not open to the discretion of the purchaser as to whether or not any financing obtained using best efforts is satisfactory. He noted that the Court rejected the following meaning for "satisfactory financing."

"Satisfactory to the particular purchaser with all his quirks and prejudices but acting honestly."

The Court stated that such a meaning could have been expressed as "financing satisfactory to him" and would have turned the interim agreement into an option.

In closing, Mr. Cassie noted that although the language of the subject condition in your client's situation may vary from that used in this case, the Court of Appeal deems to have served notice that typical generally worded financing clauses will be given meaning based upon the analysis set out in its reasons for judgement.

Psychologist points out issues raised by custody reports

and fewer judges considered professional reports important in custody decisions. This lack of credibility reported may be due to the fact that there are a great number of conflicting theories of child development and a tremendous lack of research on the effects of various types of custodial placements. Hence, there are great differences of opinion as to what constitutes the "best interests" of a child.

He noted the difficulty in properly assessing family situations because behaviour of children and parents during marital dissolution may not be typical for them.

Finally, the importance of the need to corroborate, facts, observations and opinions in custody reports were emphasized.

Sub-committee struck to study abuses of Enduring Powers of Attorney A sub-committee of the Succession, Trusts and Fiduciary Relationships Subsection was struck to draft proposals to protect the vulnerability of the donor of Enduring Powers of Attorney.

A donor of an Enduring Power of Attorney, when mentally incapacitated, is unable to protect himself or herself from unscrupulous agents, whether family members or others. Two of the greatest problems faced with respect to Enduring Powers of Attorney are the lack of knowledge and understanding of the parties involved and the inability of any government body to call for an accounting.

Dr. Allan Posthuma, Clinical and Forensic Psychologist, raised a number of issues for discussion in the Vancouver Family Subsection meeting.

The sub-committee developed two proposals for reform, one involving a limited registration system which attempts to be administratively practical, and the other, providing maximum protection against abuse.

He noted a significant U.S. study which found that a few lawyers

The former proposal contains the following recommendations;

that the Enduring Power cor a warning to the donor and include a statement as to its specific applicability, that the Enduring Power be executed by the donor in the presence of a solicitor who must certify that the donor understood what he or she was doing and who must keep a checklist of information on file, that the attorney be required to execute an Affidavit of Attorney before a solicitor and to report to the Public Trustee in writing if the attorney acts in a transaction where there could be a conflict of interest. In addition, it is proposed that the original Enduring Power of Attorney, the Certification of Solicitor, the Affidavit of Attorney and every revocation be filed in a central registry to be effective. The Public Trustee should have full investigative powers concerning accounting and management of the donor's affairs.

Federal Court of Appeal evinces new test for staying deportation order prior to execution In Joseph Toth v. MEl (#88- A324, FCA, 1988) the Federal Court of Appeal overturned the Lodge decision and held that a removal order may be stayed prior to execution provided the three-fold test elaborated in the well known American Cyanamid v. Ethicon case is satisfied. The test refers to: 1.

Is there a serious issue?

2. Will irreparable harm result if injunctjve relief is not granted? and 3. Where does the balance of convenience lie?

It was commented in the Immigration Subsection meeting t 1-- • the effect of this decision wi to keep failed refugee claimants in Canada pending resolution of their s. 28 Federal Court of Appeal cases.

Medical Service Act, B.C. Reg. 31/89, is enacted establishing the Audit Committee, its powers and procedures to review the insured services rendered by a practitioner and the patterns of practice followed by a practitioner. effective February 21, 1989

Revenue Sharing Act, B.C. Reg. 536/77, the Revenue Sharing Act Regulations are amended increasing the amounts of the unconditional grants paid to the municipalities.

will be proposed shortly.

Provincial Council of the B.C. Branch will be asked to support a resolution asking that monies paid into court be transferred from the control of the Ministry of Finance to the Attorney General. If this can be accomplished, then ideally monies paid into court will remain in the control of the Court Registry receiving the money. With local control, delays in paying out should be substantially reduced if not eliminated.

sary of the fall of the Bastille, Marie Antoinette will be put on trial.

We look forward to the participation of members of the bar in Law Week in all communities throughout the province in keeping with the theme of Law Week '89- Access to Justice.

Remote computer access to lana titles databases

effective February 23, 1989

Hydro and Power Authority Privatization Act, B.C. Regs. 36/89, 37/89 and 38/89 are enacted respecting the Victoria Gas Company (1988) Limited. effective February 28, 1989

Legislation to note Nursing Statutes Amendment Act, S.B.C. 1988, c. 51, ss. 39 and 40 respecting the Nurses (Registered Psychiatric) Act are brought into force. effective February 9, 1989

Payment out of monies paid into court The delay in obtaining payment out of monies paid into court is a frustrating problem for lawyers, their clients and the Court Services Division of the Ministry of the Attorney General. This is one problem that has received recent attention from the Joint Court Services Committee of the Ministry and the B.C. Branch.

The current government practice is to have all monies paid into court transferred to the ministry of Finance. This is where the logjam occurs and delays are beyond the control of the Attorney General.

The Court Services Division of the Ministry of Attorney General is highly sensitive to the problems created by the delays.

After detailed examination of the problem, a possible solution

Law Week Law Week planning is well under way and the Law Week Committee anticipates an interesting series of events around the province, during the week of April 16th. So far, plans are under way for Law Court Open Houses in Kamloops, Kelowna, New Westminster, Princeton, Victoria and Vancouver. Mock trials, displays and lectures relating to the law will take place in these locations. Many of the mock trials have fairy-tale themes and feature children. It is expected that Chilliwack, Courtenay, Vernon and other communities will also have Law Week presentations. In Williams Lake there will be "Law Games" involving high school students.

An effort is being made to encourage participation from around the province in the Law Cup Speaking Competition and in an essay contest, both for high school students.

In Vancouver, during the Law Courts Open House on April 16th, it is anticipated that there will be a presentation by native Indian groups in which they will set out in a traditional ceremony the laws and customs that have governed them in the past and relate these to some recent initiatives designed to include the native community more effectively in the justice process. In recognition of the 200th anniver-

Mr. McAvity, Director of Land Titles announced to Victoria Real Property Subsection members that as of December 5, 1988, remote computer access to land titles databases became available to existing ALTOS users. Full implementation of the remote access project will be delayed until consistent pricing and equitable access terms can be settled and until the community of search and registration agents has had time to adjust. This may be as early as April, 1989. At such time remote access would become available by way of dedicated line or by the less efficient but cheaper telephone dial up method. The system can be accessed between 8:00 a.m. and 8:00p.m., Monday through Saturday.

New Practice Advisory Panel The General Practitioners Section- Prince Rupert and the Municipal Law Section are the latest Sections of the B.C. Branch to establish Practice Advisory Panels.

The General Practitioners Panelists are: Ed deWalle Terrace, 638-1137 Rob Punnett Prince Rupert, 624-2106

Tom Buri Smithers, 847-3241

Employment Registry

Jane Purdie White Rock, 531-1461

If you want to hire a lawyer, provide articles for a student or hire support staff, remember the Employment Registry Service of the B.C. Branch Office. This service is a two way street and lawyers seeking employment, students trying to find a place to article and support staff looking for employment in law firms also register or search the Registry.

Panelists for Municipal Law are: Grant Anderson Vancouver, 689-7400 Jacob de Villiers Horsefly, 620-3533 Roderick MacKenzie Vancouver, 689-5263 Paul Wilson Vancouver, 688-3411 Practice Advisory Panels have also been established for Air Law, Civil Litigation, Criminal Practice, Construction Law, Family Law, Labour Law, Law Office Management, Probate Practice, Real Property and Taxation. Members of the Practice Advisory Panels are prepared to assist the more junior lawyers with practical advice. For information on members of the other panels telephone the B.C. Branch office.

While this service has been available for many years, it is probably not generally known to the bar and this is a timely reminder.

This service is very straightforward and there is no red tape. It is open for inspection by a visit to the B.C. Branch office or lawyers may telephone and obtain information on what is on file. The Branch office has prepared a standard form for each category. There is no cost to this service. For more information get in touch with the B.C. Branch office.

Product of the month The 1989-90 members Telephone, Fax and Services Directory is our product of the month.

Order your copy now to take advantage of the "early bird" discount.

The first directory published by the B.C. Branch for the 1988-89 year was an overwhelming success. While there were a few glitches with this new venture, the Member Services Committee of the B.C. Branch is planning further improvements to the 1989-90 directory. The format and size will be slightly different and the Committee is receiving continued strong support from advertisers which makes it possible to publish the directory at extremely reasonable costs. For more details carefully read the enclosed "flyer."

Law Week volunteers honoured As part of the leadup to this year's Law Week activities, B.C. Branch President, Jim Vilvang and Law Week '89 Chairman, David Winkler presided at a luncheon ceremony held at the Vancouver Law Courts Building honouring twelve persons from the Vancouver Registry Offices who have contributed their time over a number of years by volunteering and assisting in the Law Day activities at the Vancouver Court House. After thanking all of those being so honoured as well as other members who have assisted in the past and are working on this year's Law Day program, Jim Vilvang presented Certificates of

Appreciation and Law Day Mugs to the following perso路 Sue Utendale; Harvey Frieser., Dave Holbeche; Doreen Folkstad; Mary Ellen Thomson; Amy Bonner; Doreen M. Box; Elaine Chan; Sheila Bains; Trevor Hughes; Bruce Bampton; and Sue Thomson.

B.C. Dates Unless otherwise indicated, the contact is the B.C. Branch office.

April 8, 1989 Prince Rupert County Bar Annual Meeting Mount Layton Hotsprings Hotel Terrace Contact Don Brown at 635-6630 April 8, 1989 B.C. Branch, CBA Provincial Council Law Courts Inn Vancouver .

May 12- 14, 1989 Cariboo Bar Annual Convention Esther's Inn Prince George Contact Darrell Wade at 562-1221 June 23, 1989 B.C. Branch, CBA Annual Meeting Meridien Hotel Vancouver June 23, 1989 B.C. Branch, CBA Provincial Council Meridien Hotel Vancouver June 23, 1989 Law Society of B.C. Annual Meeting Meridien Hotel Vancouver Contact Law Society at 669-2533