BarTalk | August 2012

Business & Securities Law | Take it Outside | The Deal is Not Quite Over

AUGUST 2012 | www.cba.org/bc

Teaching Business Law in the Real World

Page 12

Events BarTalk Editor

Deborah Carfrae Editorial Board Chair

2012 PROVINCIAL COUNCIL AWARDS President’s Medal

Community Service Awards

Michael Welsh Editorial Board Members

Candice Alderson Carol Anne Finch-Noyes Richard Fyfe Sandra Harper Beverly MacLean Gail McKay Sarah Nelligan Clint Sadlemyer Rose Shawlee

(L-R) James Sutherland and CBABC President Sharon Matthews

bartalk Senior Editor

Maureen Cameron Staff Contributors

Bianca Bishop Simon Bursell Tanya Galic Stacy Kirpichova Catherine Lau Stuart Rennie Jennifer Weber

(L-R) David Dundee being presented with the President’s Medal by CBABC President Sharon Matthews

CBABC Equality and Diversity Award

(L-R) Jeff Zilkowsky and CBABC President Sharon Matthews

(L-R) Jennifer Spencer and CBABC President Sharon Matthews

(L-R) Georgialee Lang and CBABC President Sharon Matthews

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

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at www.cba.org/bc. © Copyright the British Columbia Branch of the Canadian Bar Association 2012.

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

The British Columbia Branch of the Canadian Bar Association represents more than 6,700 B.C. members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

CBA Canadian Legal Conference Aug. 12-14, 2012, Vancouver

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It’s not too late to register – day passes available! www.cba.org/Vancouver2012 2 BarTalk / AUGUST 2012

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

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

AUGUST 2012

volume 24 / number 4

Contents

Departments

4 From the President

Time to Reflect

by Sharon Matthews 5 Executive Director

The Business of Helping Lawyers

by Caroline Nevin 6 Practice Talk A Big Challenge to the Justice System

by David J. Bilinsky 8 Nothing Official If You Don’t Rebuild It, People Will Come

by Tony Wilson

Sections

10 Section Update

Maritime Law

Banking Law

Business Law Securities Law 11 SECTION NEWS

James D. Kondopulos, Chair, Employment Law Section

Features 12 Teaching Business Law in the

Real World

by Michael Litchfield 13 OSC Considers New Settlement Regime

by Lisa Ridgedale 16 The Deal is Not Quite Over

by Kevin Wright and Jonathan Gilhen

Guests

9

CBABC WLF

by Nicole Byres

14 Take it Outside

by Sarah Picciotto 15 British Columbia’s Articling Landscape

by Alison Cowan and Jennifer Lau

Inside This Issue Free enterprise and business is fundamental to our economy and good legal advice is integral to its success. Our focus is on business and securities law, including innovations at UVic with its “hands-on” business law clinic, potential changes in how securities regulators may handle alleged breaches, restrictive covenants and the future of stock markets (a must read!) We also look at legal research outsourcing, articling tips and the 10th anniversary of the WLF.

News and Events 2 2012 Provincial Council Awards Photos 17 2012 Golf Tournament

Lawyer Alert for This Year’s Mentorship Program 18 SCC Intervention

Georges A. Goyer, QC Memorial Award CLC Conference in Vancouver 19 Lindy Rouillard-Labbé Wins 2012-2013 Viscount Bennett Fellowship Stephen Hanson Announces Retirement Valli Chettiar & Judge J. Gary Cohen Among Award Winners Recognized at CLC Vancouver 20 Is Your Client Safe? A Lawyer’s Guide to Relationship Violence Nanaimo Battle of the Lawyers’ Bar Bands CLEBC Update 21 Legislative Update

Branch & Bar Calendar

Law Firm Donates $50,000 to RCH Foundation Insurance Practitioner of the Year Winners 22 Sections Tip Eleventh Annual Battle of the Bar Bands Photo

Practice Tip for the Civil Litigator in Supreme Court CBABC WLF AGM and Annual Education Day

Also In This Issue

23 LAW FOUNDATION OF BRITISH COLUMBIA 24 PROFESSIONAL DEVELOPMENT & Member Services 25 DISPLAY ADS 26 Bar Moves 27 New Members AUGUST 2012 / BarTalk 3

From The President Sharon Matthews

Time to Reflect On a profession that makes me proud

W

e still have a legal season, notwithstanding the abolition of the long holiday. The pace naturally slows.

This is good because just around the corner is September, one of the busiest times of year as lawyers and our clients return to work with determination and purpose. The summer is a time to get ready for that burst of busy-ness that is part of our business. It is also a good time to take stock of the year in progress.

For me, this summer is a time to transition out of the role of CBABC President and back into my practice. On the one hand, I have had a terrific year and I will miss being in the middle of the interesting and important issues that the profession must grapple with. On the other hand, this year has demonstrated how much I do enjoy my practice; I am excited to be returning to it.

When I reflect on the last year, I am so impressed by the fine people who make up this profession. In the truest sense of professionalism, we are defined by what we do. Our work days are long and hard when that is what we have to do to serve our clients’ interests.

We take seriously the obligation to go beyond the paid work and to volunteer and do pro bono work.

In 2011, 6,727 lawyers reported doing pro bono work averaging 48.1 hours each. This is not only amazing, it is up from the amazing year of 2010 when 5,214 lawyers reported doing pro bono work with an average of 47.47 hours each.

Well over half of the full-time Bar is doing over one week of free work per year. As I travelled around the province over the last year talking to chambers of commerce, community groups, Rotary clubs and media about legal aid, I would occasionally hear “lawyers simply charge too 4 BarTalk / AUGUST 2012

much.” When I replied by saying how proud I am of my profession and quoted these stats, this challenge was replaced with a compliment.

If the quantity and quality of free work that lawyers do were the

In 2011, 6,727 lawyers reported doing pro bono work averaging 48.1 hours each. norm in society as a whole (especially in government) there would be plenty more tax dollars for an appropriately funded justice system, including legal aid to fill the gap between what can be provided pro bono and what is required to have equal access to justice.

I am not calling upon government to require their employees or anyone else to work a week for free. The beauty of pro bono work

is that it is voluntary. I simply observe that if everyone volunteered their valuable skills back into the economy as lawyers do, society would be able to do more with scarce resources. Lawyers should get credit for what we do. But we don’t do it for the credit, we do it because it is the right thing to do.

So as you take stock of the year in progress, be proud of your own volunteer efforts, pro bono and otherwise.

Be proud that your fellow lawyers are doing their part and more on access to justice. Take some time to consider the pro bono opportunities that are out there: Access Pro Bono lawyer rosters and clinics, Pro Bono Goes Public advicea-thons (September 7-20), Salvation Army clinics and people who need some help but cannot afford to pay legal fees.

Thank you for doing so much for those who really need it.

Thank you for the opportunity to be CBABC President. It has been tremendously rewarding. Enjoy the summer!

Sharon Matthews

president@bccba.org

executive director caroline nevin

The Business of Helping Lawyers What we can learn from Black & Decker

L

aw practice futurist Richard Susskind often tells the story of how a leader challenged Black & Decker (B&D) managers and employees to shift away from thinking of themselves as being in the business of selling power tools (cue photo of B&D power drill) but rather (cue photo of drilled hole in wall) in the business of helping people get things done. B&D has, in fact, become the world’s leader in power tools, but has also expanded into a wide variety of product categories and markets.

They describe themselves this way: “We design and build smart products that make life easier in and around your home.”

Mr Susskind, who is a special advisor to the CBA, uses the B&D analogy to challenge lawyers and law firms to think differently about their work. It’s easy to lose sight of the bigger picture in the day-to-day details of individual litigation actions, production of agreements and contracts, provision of legal advice, etc. The reality is much simpler and very powerful: lawyers help people solve and prevent problems.

In the same way, professional organizations have been challenged to look hard at themselves to find their true meaning and relevance, or risk obsolescence. A classic warning case is the American Medical Association, which has dramatically fallen from an historic position of dominance as the representative of doctors in the US, to its current position of representing about 20 per cent of practicing US physicians. Why? There are a complex series of reasons, many of them political in nature, but in essence it boils down to two things: 1.

Not paying attention to demographic trends, and 2. Not staying relevant to members and meeting their needs.

The business of the Canadian Bar Association, like that of Black & Decker, boils down to one purpose: “We make life easier for lawyers.”

Want to make a real difference in the world? We help make that

easier by providing infrastructure, clout and opportunities to truly influence legislation, policy and reform at the provincial, national and international levels. Want to stay ahead of changes in your practice area and Law Society requirements? We make that easier by developing affordable, enjoyable Professional Development and Sections programs that you can access locally or online across the province or country (or, in the case of our fabulous Branch Conference, somewhere sunny to escape the November rain!) Crave some collegial contact or need to network to build your business? We make that easier by hosting fun events, by weaving in great networking with our PD and Sections programming, and by offering opportunities to volunteer with the Association and as CBA reps to other legal organizations.

We make it our business to stay relevant, by keeping in touch with you and always seeking more

information about what you need and how we can make your life in law easier. Here are some interesting business stats about what’s changed in the eight years since lawyers have been able to choose to belong to the CBA in B.C. (factoring out net zero events like the Bench & Bar Dinner): we’ve reduced our reliance on membership fees from 62 per cent of revenues to only 41 per cent we’ve increased the number and scope of meetings and governance activities in order to do more work, but dramatically reduced its share of our overall expenditures – from 14.5 per cent to 9.8 per cent we’ve increased the percentage of budget we invest in Professional Development and Sections, from 5.4 per cent to 20.6 per cent and we’ve dramatically increased direct member service while only adding 2.5 full-time staff positions over eight years.

Our ability to do extraordinary things is made possible in part through your membership dollars, but perhaps even more importantly through the profession’s volunteerism and willingness to help us be better every day. Thank you!

Caroline Nevin

cnevin@bccba.org aUGUST 2012 / BarTalk 5

practicetalk david J. bilinsky

A Big Challenge to the Justice System Can we bring about fundamental change?

And it’s a sad picture, the final blow hits you Somebody else gets what you wanted again You know it’s all the same, another time and place Repeating history and you’re getting sick of it...r r

W

– Music, lyrics and recorded by Taylor Swift

hat does business want from the justice sector? One could argue that they desire a just, speedy and inexpensive way of resolving consumer disputes. If we look for examples of innovators in this area, eBay and PayPal are leading the pack of companies that have invested heavily in Online Dispute Resolution (ODR) systems over the last decade. They continue to do so because they know that solving customer problems is a positive and key aspect to how their companies do business. It is important to note that they have specifically gone around the justice sector in coming up with their dispute resolution system.

Note that the eBay/PayPal ODR system handles more than 60 million disputes per year. Of these disputes, 90 per cent are resolved entirely by software. Moreover, the majority of cases are resolved amicably. They have extensive research that indicates that their ODR system promotes the further use of eBay and PalPal – even by parties who “lose” their dispute.

They have invested considerable funds in building their online dispute resolution system because it is good for business and good for their consumers.

What has happened is that eBay and PayPal have built a private civil justice system for a virtual

6 BarTalk / AUGUST 2012

country or community. It is independent of any judicial system in any country. And the message that it is sending over the judicial world should not be ignored. We have to bring about innovative change within the justice sector – or it may well occur outside – in fact, it is already happening.

In my view, any real innovations in dealing with fundamental change and innovation in the justice sector have to start with an examination – a realization if you will – of the inherent structure of the Justice System. For example, the present justice system is: Synchronous: All parties must attend the courthouse at the same time.

Serial: Each case follows the one before it in order to be heard by the presiding judge or court official.

Expensive: Each bricks and mortar courthouse has to be built and staffed.

Geographically

Tied: All parties must attend the court that is hearing the case.

Jurisdictionally Tied: For the most part, each case is heard according to the laws of the jurisdiction where it is filed.

Adversarial: Win/Lose not Win/ Win. Involves Transactional Costs (TC): TC = Hard costs + loss of opportunity costs. The longer the resolution time, the greater the transactional costs.

Involves Delays: We are seeing headlines today on the increasing delays in the justice system. We all know that justice delayed is justice denied.

Limited Availability: It used to be that courts and bankers kept the same hours. Courtesy of the Internet, banks are open 24/7.

Courts, however, are not.

Involves a Judge: For the most part, a case must be heard and determined by a judge. This means that the judge represents a bottleneck in the system.

The Challenge in bringing about real change and innovation in the justice sector involves realizing these structural constraints and asking yourself: How can you structure a dispute resolution system that tries to break down one or more of these constraints?

What would that system look like?

Continued on page 7 >>>

Continued from page 6 What

would be the advantages to those involved in the dispute that don’t currently exist in the present justice system?

What about disadvantages?

In my humble view, one possible dispute resolution system that does try to break down one or more of these constraints is: Online Dispute Resolution (ODR).

ODR has two big advantages on its side: 1. ODR, being non-adversarial, helps the parties to maintain a relationship after the dispute is resolved. (such as disputes that fall into the areas of: Family law, employer-employee, neighbours and e-commerce (to avoid classaction suits) where it benefits all parties to resolve the dispute because they have to continue to deal with each other).

2. ODR is increasingly accessed via mobile technology. (Mobile technology brings justice to the people rather than the people coming to justice).

So – what is ODR? ODR incorporates dispute resolution processes that are: Facilitative: processes such as conciliation, mediation, and facilitated negotiation.

Advisory: processes such as case appraisal, mock trial, and neutral evaluation.

Determinative: process such as arbitration and adjudication.

Since this is online dispute resolution, these processes are assisted by technology, especially the Internet.

There are two basic forms of ODR: Technology Based: such as Blind Bidding systems that seek to resolve quantum-based disputes by facilitating confidential offers until the gap between bids is

narrowed (without disclosing to the parties the amount of each party’s bid).

Technology Assisted: Where technology is used to assist persons trying to resolve a dispute.

What are the advantages of ODR to the parties and to society?

Asynchronous: Negotiations can take place any time over the Internet.

The eBay/PayPal ODR system handles more than 60 million disputes per year. Of these disputes, 90 per cent are resolved entirely by software.

Moreover, the majority of cases are resolved amicably. They have extensive research that indicates that their ODR system promotes the further use of eBay and PalPal – even by parties who “lose” their dispute.

Parallel:

Each case can be determined independently of any other.

Inexpensive: Websites are cheaper than courthouses to build, staff and maintain.

Spans Distance: Parties do not have to attend a physical location.

Non-Adversarial: ODR seeks to preserve the relationship between the parties.

Lowers Transactional Costs: ODR offers shorter resolution

times + lower transactional + economic costs.

Seeks Speedy Resolutions: ODR is more concerned with good and fast solutions.

24/7 Availability: Courtesy of the Internet, ODR is open 24/7.

Doesn’t Involve a Judge: eJury and other sites are experimentations in online juries. EBay and PayPal are trying online community courts.

For the most part, ODR is still jurisdictionally tied (eBay and PayPal are one big counter-example).

But UNICTRAL (The United Nations Commission on International Trade Law) and others are trying to design ODR systems that are independent of any territorial laws, at least in terms of crossjurisdictional disputes.

Here is the challenge: If we don’t bring about fundamental change to the justice system, we may find that many disputes have been taken away from the justice system and are resolved by other means. If we wait and don’t bring about fundamental change, we may well find that someone else got what we wanted – again.

Special Note: David has recently been made a Fellow of the National Center for Technology and Dispute Resolution (NCTDR) at the University of Massachusetts. (www.odr.info) 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

aUGUST 2012 / BarTalk 7

nothingofficial TONY WILSON

If You Don’t Rebuild It, People Will Come Turning the Pattullo Bridge into a park

Y

ears ago while shuttling my kids and their friends all over the Lower Mainland for box lacrosse, field lacrosse, hockey, soccer or birthday parties, I got hopelessly lost in a parking lot in Coquitlam that was so poorly designed, starving rats couldn’t find their way out of the maze without the cheese being crumbled along the route to show the way. Now don’t think I’m picking on Coquitlam (which you might not know is an old Salish word that roughly means “the place where IKEA is”).

In fact, you can scream “what idiot approved this parking lot” anywhere in B.C. It’s the moment you realize the only rational explanation for such bad urban planning was that the official who approved it was watching “Inception” on LSD at the time.

Since that day, I have been a vocal advocate of amending the Criminal Code to make “Bad Urban Planning” an indictable offence, punishable by a long prison term stuck in a hot minivan filled with four screaming kids and unwashed lacrosse gear, a stiff fine and flogging.

Although they say most people dream about sex, university exams they haven’t studied for, or being a waiter again after 30 years (it’s called a Kegmare), I confess to once having had a dream about urban planning where I solved all of Vancouver’s traffic problems without bike lanes. My solution was to put chairlifts all throughout the city, making it easy to get from Georgia and Granville to, say, Broadway and Granville in the time it takes the 7th Heaven Express Chair to get up to the Glacier at Blackcomb. Need to be at the courthouse? Catch the Hornby Street quad chair! Rain?

No problem. Lower the weather

8 BarTalk / AUGUST 2012

dome like you do on the Wizard. But of course, I was dreaming.

Which brings me to the Pattullo Bridge.

Living in New Westminster, I’ve recently paid attention to the planned replacement of the 75-year-old structure with something with many more lanes that would accommodate way more cars. I had originally thought those who wanted the bridge torn down and not replaced were Luddites. I mean, why wouldn’t you replace an old rickety bridge with a new one with more lanes? But I realized they were right. The Pattullo does nothing for New Westminster except allow cars and monster trucks to roar through the main streets and residential neighborhoods of the City on their way… somewhere else. The commuters don’t stop to shop. They don’t stop to eat. If they stop, it’s because they’re stuck in traffic. But they are the traffic. And once the new Port Mann Bridge is

finished (and tolled), there will be more traffic because much of Surrey will head for the Pattullo to avoid the toll. New West will become an even bigger parking lot.

So it isn’t so crazy to say: “Don’t replace the Pattullo Bridge. Force drivers to use the new Port Mann or Skytrain.”

Better yet, get the attention of urban planners all over the world by turning the Pattullo into an elevated and landscaped park like the High Line in New York City that allows people, rather than cars, to enjoy one of the most spectacular views in B.C. People will come, Ray. People will come.

The residents of Vancouver voted against freeways in the 1970s, and for good or for bad, there are no freeways. Were New Westminster City Council to vote against a new bridge and deny building permits for construction of on and off-ramps, Translink would have to go back to the drawing board and either shelve plans for a new Pattullo or build a new bridge in an industrial area in Burnaby far away from people and neighbourhoods and closer to an arterial road like Marine Way. And no, I haven’t been watching Inception on LSD. I’ve been watching Field of Dreams.

The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

guest NICOLE BYRES

CBABC WLF 10 years later gender diversity remains a challenge

T

his month, the CBABC Women Lawyers Forum (WLF) will commence its 10th year of activities and events aimed at promoting, supporting and advancing the stature and influence of women in the legal profession.

In 2003, a small group of women lawyers in B.C. with a vision of a better profession for women as well as men, started a movement that has directly and indirectly been responsible for the creation of the CBABC WLF, a national CBA WLF, and WLFs in every province and territory except Nunavut.

The WLF is proud of the programs that it has developed and offers each year in the areas of mentoring, business development, education and recognition for women lawyers. The mentoring program alone has matched 900 women lawyers throughout the province. Many of the hundreds of WLF members have reported that they found jobs or support to stay in the profession because of these programs. There is, however, much more to do. The fact is that the retention of women in the legal profession, particularly in private practice, remains a challenge. The Law Society of British Columbia estimates that at the current rate women are leaving the profession, it will take until 2088 before women will achieve parity with men in terms of partnership in law firms. This is despite the fact

that for well over a decade, more women than men have graduated from law schools.

Law firms report that despite hiring large numbers of women, implementing progressive maternity leave programs and flexible work arrangements, and eschewing discrimination and sexual harassment, women lawyers are still leaving in disproportionate numbers.

So what is the problem? Surely, women lawyers are just as smart and ambitious as their male counterparts so why haven’t these programs resulted in improved numbers of women lawyers advancing to partnership and leadership positions? The short answer is that barriers are inadvertently created simply by doing things the way they have always been done. Technology changes aside, the practice of law is essentially carried out as it has been over the past 100 years.

So while the above noted programs offered by the WLF and law firms are important and necessary, they do not address the underlying problem – traditional law firm systems and structures negatively affect women lawyers’ client and leadership opportunities and compensation. It is a bit like the chicken and egg dilemma: if a law

firm’s equity partners are all or predominantly men, how can they recognize, never mind fix, these inadvertent barriers? And until the barriers are addressed, how can law firms achieve the critical mass of women in partner and leadership roles necessary to recognize and effect change?

If law firms hope to replace the wave of baby boomers now starting to retire, it will be necessary to retain their women lawyers.

Thus, if the retention of women lawyers isn’t already a strategic priority of law firms, it should be.

Understanding and then dealing with hidden or subjective factors within law firms which inadvertently disadvantage women lawyers is a huge challenge. Objective and transparent partnership criteria, valuing contributions that play to women lawyers’ strengths (such as team work and collaboration), grooming and sponsoring women for leadership roles and ensuring women are on compensation committees are some of the tactics that have been identified to improve gender diversity within law firms.

The founders of the WLF led the way by establishing programs aimed at supporting women lawyers. Ten years later, the WLF remains committed to working with the profession to achieve true gender diversity, which ultimately, will better serve us all.

Nicole Byres is the incoming Chair of the CBABC WLF and a partner with Clark Wilson LLP. aUGUST 2012 / BarTalk 9

sections section update

Maritime Law

The committee comprised of Keep Current A review of uJack Buchan and Brad Caldwas formed as a result of the provincial Section meetings. well Saulnier v. Royal Bank of Canada,

Maritime Law Meeting: January 26, 2012 Speaker: Brad Caldwell, Caldwell & Co Topic: Personal Property and Security Act Amendments Committee Report*

Banking Law Meeting: May 2, 2012 Speaker: David Zacks, QC, Blake, Cassels & Graydon LLP Topic: Ethical Issues Relating to the Banking Practice

Business Law Meeting: May 8, 2012 Speaker: Lorene Novakowski, Fasken Martineau DuMoulin LLP Topic: Restrictive Covenants in the Sale of a Business

Securities Law Meeting: June 12, 2012 Speakers: Misha Chutskoff, Investment Banking, Raymond James Ltd. (pictured) and Theoni Pilarinos, CFA, Research Analyst, Raymond James Ltd. Topic: Capital Markets Update and Predictions

10 BarTalk / AUGUST 2012

2008 SCC 58. This decision originated from Nova Scotia and held that for the purpose of the Nova Scotia Personal Property Security Act (PPSA) fishing licences were considered property and could be encumbered. However, the case did not apply in British Columbia.

Brad Caldwell provided a summary paper detailing the recent movement in British Columbia to apply the same rationale. On November 22, 2011 the government of British Columbia passed Bill 5 so as to allow licences (including fishing licences) to fall under the definition of “licence” in the PPSA. The definition has now been expanded to include other licences as well.

The amendments to the PPSA are not yet in force but are expected to be proclaimed by regulation before the fall. During discussion, it was noted that the Department of Fisheries and Oceans of Canada (DFO) now has a notice system where financial institutions can register their interests with DFO. The Legislation also only has retrospective effect. *More information on this subject can be found in Paul Mooney’s paper: www.cba.org/BC/s_maritime/pdf/ maritime_paper_01_26_12.pdf.

Banking Law In this open forum discussion

uconvened by Mr. Zacks, Section members canvassed a few ethical issues in scenarios relating to banking and commercial practice. For instance, should a lawyer observe a higher ethical standard when

dealing with an unsophisticated party, as opposed to a presumably experienced businessperson? Or, what if the supposedly sophisticated party made a mistake and the mistake was clearly to the benefit of your client? There was a consensus that a lawyer should always inform and seek instructions from the client about such mistake, regardless of whether the lawyer ultimately feels duty-bound to not take advantage of the mistake. Members considered the appropriateness of back-dating documents in various contexts (and were referred to the criminal offence of obtaining credit under a false pretence or fraud).

Members also discussed the tactic of withholding one’s own work products (e.g. closing opinion) as a leverage to ensure that the account will be paid.

Business Law Lorene Novakowski delivered

ua presentation on non-com-

petition clauses. The presentation considered restrictive covenants sought to be enforced in connection with the sale of a business by an owner/employee. The first step in the analysis is to characterize the restrictive covenant as connected to the sale of the business or to the employment relationship to determine the proper context to consider whether or not the covenant is enforceable. Next, case law is surveyed to identify where covenants have been interpreted to be connected to a sale instead of to the employment relationship: for example, where consideration is paid for goodwill, it is more likely a court will find that the restrictive covenant was connected to the sale of the business. Overall, covenants that

are more restrictive are more likely to be enforced when connected to the sale of a business, and not to the employment relationship.

Securities Law Investment banker Misha

uChutskoff and Research Ana-

lyst Theoni Pilarinos of Raymond James Ltd. provided their “Capital Markets Update and Predictions.”

The five key themes were as follows: (1) Market volatility has persisted since the financial crisis due in part to a high degree of “investor fear.” While the TSX is indeed up from 2009 lows, it has been trending down year-to-date.

(2) There have been successful but selective financings with approximately $9 billion raised in 2012 primarily in the oil and gas and financial services sectors. The IPO market has experienced its slowest start to a year in the last four years. (3) With interest rates at very low levels, investors remain focused on yield, specifically dividend paying stocks and convertible debentures. (4) The M&A market is active and expected to improve later this year due to inexpensive debt, compelling valuations, and better capitalized balance sheets for potential acquirers. (5) With much of the current global macro uncertainty prevailing, many of the key themes seen year-to-date are expected to continue throughout the remainder of the year.

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

Section Chair Spotlight

James D. Kondopulos, Chair, Employment Law Section James D. Kondopulos continues as the Chair of the Employment Law Section of the B.C. Branch of the Canadian Bar Association. He has served on the Section’s Executive for a number of years now.

James is a partner* with the Vancouver-based employment and labour law boutique of Roper Greyell LLP. He acts for and advises employers in employment, labour relations and human rights matters. He also represents employers and employees in wrongful dismissal actions, and investigates and reports on allegations of workplace harassment, bullying and code of conduct violations.

James engages in many volunteer activities. He is an Executive Member of the Canadian Bar Association (CBA) National Labour and Employment Law Section.

He has also been a guest speaker for the Continuing Legal Education Society of B.C. (CLEBC), the BC Human Resources Management Association (BC HRMA), Lancaster House and Insight Information. He is a Junior Editor for the CBA’s “Labour and Employment Law Perspective” newsletter and regularly writes for BC HRMA’s HRVoice magazine. *Practising through a law corporation

GO ONLINE FOR MORE INFORMATION

aUGUST 2012 / BarTalk 11

features MICHAEL LITCHFIELD

Teaching Business Law in the Real World A hands-on approach

E

stablished at the University of Victoria in 1998, the Business Law Clinic takes a practical approach to teaching the fundamentals of business law to second and third year law students. Recognizing that a good business lawyer requires many skills that are not teachable in the abstract, the clinic builds on the students’ past classroom experience and provides the opportunity to work with clients in the community with real issues. As one of the only clinics in Western Canada that focuses on business law issues, the clinic operates in a unique niche where demand for services is high. Typical clients for the business law clinic include existing businesses, entrepreneurs

12 BarTalk / AUGUST 2012

and non-profit organizations that bring a variety of concerns ranging from business structuring to intellectual property concerns. “The Business Law Clinic provides a great opportunity to get firsthand experience with the practical elements of being a lawyer such as client management, file management and practical drafting,� said Alexander Buchinski, third year student at the University of Victoria. This practical experience is one of the two key strengths of clinical legal education. The clinic environment offers students the chance to develop and practice a variety of critical lawyering skills in a properly supervised environment, which can set good habits early and ease the transition between

law school and practice. This is accomplished through a 13-week curriculum that includes instruction in fundamental practice skills such as interviewing, practical drafting and file management as well as a series of practitioner delivered guest lectures on essential topics such as accounting, intellectual property and insolvency.

The second strength of clinical legal education is the valuable service provided to the community in offering no-cost access to legal information. The Business Law Clinic at the University of Victoria provides a much-needed resource to business owners, entrepreneurs and non-profit organizations that may not otherwise be able to afford such services. The demand for service is so high, in fact, that the Business Law Clinic has recently expanded the number of students enrolled in the program each semester and now provides service to the entire province through the use of Skype and teleconferencing technology.

Sponsorship for the clinic is provided by Bull Housser Tupper, and the clinical legal education of the students is further supported by a variety of law firms and individual lawyers from throughout British Columbia who provide mentorship, guidance and guest lectures to the students.

The Business Law Clinic at the University of Victoria welcomes referrals from lawyers located anywhere is the province and can be contacted at blc@uvic.ca. Further information can be found at www.law.uvic.ca/blc.

Clinical Director Michael Litchfield (centre) with two Business Law Clinic students Jeffrey Miller (left) and Alexander Buchinski (right).

LISA RIDGEDALE

OSC Considers New Settlement Regime

Will it promote efficiency or dilute deterrence?

A

fter years of resisting American-style settlements, the Ontario Securities Commission (OSC) has proposed the use of “no-contest settlements,” which would allow the regulator to issue orders without requiring respondents to admit they committed any specific breach of the Securities Act. The OSC says the proposal is “aimed at resolving enforcement matters quickly and effectively.”

Few issues in securities enforcement have sparked as much controversy as this proposal and the OSC has come under fire as a result. By contrast, the U.S. Securities and Exchange Commission (SEC) has a long history of allowing no-contest settlements. However, in the wake of the 2008 financial crisis, the practice has been criticized as contributing to the lack of deterrence that exists for wrongdoers in the capital markets.

Strained budgets and resources, which often result in a decrease in orders and sanctions, must account for part of the OSC’s rationale for adopting the settlement model.

The proposed model is contained in OSC Staff Notice 15-704 as part of four proposed initiatives.

The Staff Notice outlines the “No-Contest Settlement Program” as an opportunity for cooperating market participants to resolve an enforcement matter without admitting the specific underlying facts. To enter into a no-contest settlement, the respondent must cooperate in

the investigation and have no history of prior enforcement action.

In our own province, the British Columbia Securities Commission (BCSC) appears to be firmly opposed to implementing the nocontest settlement model. This is consistent with the BCSC’s recent outcome-based approach to enforcement, which has seen the regulator take a more aggressive stance to breaches of the Securities Act as well as streamlining its enforcement division so that it can prosecute more cases and obtain better results; the thinking being that deterrence is an effective weapon in the local marketplace.

The OSC proposal has no shortage of opponents. In addition to the public’s lack of confidence in Canadian regulators to reduce and meaningfully punish marketplace shenanigans and other regulators who do not share the OSC’s proposed solution to lean budgets, opponents of the proposal argue that no-contest settlements are contrary to the fundamental tenets of Canadian securities regulation.

Investor protection groups such as FAIR, IAP and SIPA are concerned that the no-contest settlement model will make it too burdensome for investors to recover losses. Because securities commissions typically do not provide restitution to investors,

investors must recover financial losses by initiating civil litigation at their own expense. Admissions made by respondents in administrative settlements provide muchneeded ammunition for investors to be successful in civil proceedings, where the hard-fought battle consists of both proving the underlying offending behaviour as well as securing any assets the wrongdoer may still have in the jurisdiction.

The other side of the coin is that requiring admissions from wrongdoers impedes the resolution of enforcement actions, because of their fear that those admissions may expose them to liability in civil proceedings. The OSC appears to agree with this argument and sees it as a way to resolve more cases and issue more protective orders, which, in turn, will protect investors.

In all of the circumstances, it seems likely that the OSC will implement some form of the no-contest settlement model. The practical reality is that the OSC and other regulators have to be creative when dealing with the ever-increasing volume of breaches of securities regulations and the simultaneous increase in the complexities of fraud detection.

It will be interesting to see the results of the OSC’s request for public comment and equally interesting to see how the SEC deals with the model it has relied on for decades in an era where public opinion is calling for an overhaul of any system that does not require the highest level of accountability for wrongdoers.

Lisa Ridgedale, Litigation Counsel, Ridgedale Law Corporation. aUGUST 2012 / BarTalk 13

guests Sarah Picciotto

Take it Outside

Lawyers have caught the legal research outsourcing wave

M

ore and more, lawyers are challenging the traditional model of practice and are creating their own paths to forge meaningful legal careers. An excellent example is being a research lawyer, which suits the lawyer who enjoys and has a talent for research and writing, and provides a valuable service to lawyers who require assistance from research specialists. Utilizing the skills of research lawyers challenges the assumption that lawyers must do it all, from legal research and drafting to developing litigation strategy and managing clients. The face of legal practice is changing and, by extension, so too is the traditional law firm model.

Historically, law firms relied on their employees to provide the full gamut of legal services. Increasingly, however, law firms are seeing the benefits of outsourcing legal work. Whether outsourcing a single issue important for one file or developing an ongoing relationship over several files, the benefits of getting assistance from a trusted contractor are wide-ranging and extensive.

SPECIALIZING YIELDS A BETTER QUALITY PRODUCT Outsourcing presents a unique opportunity for law firms to obtain superior quality work for those files that require extra attention by a 14 BarTalk / AUGUST 2012

legal professional with proven abilities. For example, since research lawyers are focused exclusively on specific legal services – typically, legal research, analysis and drafting – they are often able to provide these services with greater proficiency than are lawyers operating as generalists who often do not have the time to devote to maintaining their skills in the ever-changing world of research technology. In addition, research lawyers are able to give their undivided attention to the task – a constant challenge for lawyers trying to do it all.

COST CONSIDERATIONS Outsourcing not only allows law firms to obtain specialized services, it also allows them to obtain these services at a lower cost than if the services were provided in-house, thereby compounding the benefits. For small firms, this means the ability to expand operations without first expanding staff and risking financial losses. For larger firms, it means being able to devote more hours to research when getting the right answer is crucial. Technology makes the outsourcing model even more attractive, making possible an instantaneous transmission of instructions and results from virtually anywhere.

MEETING THE EBB AND FLOW Outsourcing allows firms to meet the unexpected demands that inevitably arise in litigation. Rather than being pressed to make a hiring decision or to add another employee who may no longer be needed once the file has been closed, firms that outsource obtain services needed on demand and in a timely fashion without placing an unreasonable burden on their staff. Ultimately firms only pay for what they get; when the project is over, there is no ongoing financial liability.

WHAT CAN BE OUTSOURCED? When it comes to outsourcing research, law firms have a wide range of choices in terms of the work they contract out to research lawyers. The work may be as narrow as noting up a key provision in a piece of legislation, or as broad as summarizing legal principles and applying them to the facts of a case. In addition, research lawyers can tackle large portions of files, draft opinion letters, and prepare written submissions and facta. Research lawyers are also an excellent resource when examining the merits of a case; they can provide an objective opinion on its strengths and weaknesses, identify key issues that may have been missed, and act as a sounding board when what is needed is to discuss the case with a colleague.

Sarah Picciotto, Founder and Research Lawyer, OnPoint Legal Research

Alison Cowan and Jennifer Lau

British Columbia’s Articling Landscape

Opportunities for students and firms

F

inding articles has never been an anxiety-free task. Law students nearing the end of law school are thinking about repaying student debt and securing employment. For many law students, including those who may not have had much job-hunting or work experience before law school, this can be a daunting task.

Despite the hype in the media, however, there is no “articling crisis” in B.C. While the economic downturn has created more challenges for law students as they look for articles, there are opportunities for students who put the work into finding them. Historically, more than 90 per cent of the 180 UBC and 105 UVic law graduates seek articling positions after graduation. Between 96-99 per cent of these students report securing an articling position within six months of graduation.

The 8-10 per cent of UBC and UVic law students who report each year that they are not seeking an articling position typically pursue an LL.M., other graduate degree, or some other professional career.

However, the process of finding articling positions has changed over the past decade. The “match” program no longer exists in B.C. Law school career services offices are phasing out their resumé collections.

The articling recruitment cycle is starting earlier. While many of the downtown Vancouver law firms effectively recruit their articling

students in the fall of second year, most of the other 3200 B.C. law firms prefer to hire their articling students closer to their actual start date.

This results in continued recruitment throughout third year and after graduation. The UBC and UVic Law Career Services Offices (CSOs) work with their students to create a selfdirected career plan and job search strategy. Part of this involves helping students learn how to find articles in smaller firms, which is not always a transparent process. Approximately 40 per cent of UBC and UVic law students article at a firm with fewer than 50 lawyers, so the CSOs devote a good amount of their resources toward helping students research small firms and develop the networking and cold-calling skills they need to tap into these smaller firm opportunities across B.C. and Canada.

The CSOs strongly encourage members of the Bar to consider taking on an articling student. Under the new Law Society Rule 2-32.01, articling students can now do almost everything that a lawyer can, as long as they are properly supervised by a lawyer. Moreover, there is no longer a “breadth requirement” requiring articling students to gain experience in multiple practice areas.

This means that sole-practitioners

and boutique law firms can now take on articling students.

Many students end up staying with the firm where they summered or articled, building successful careers, and moving into partnership. Sometimes they end up taking over a practice when more senior lawyers retire. For firms where a particular student did not work out in the past, it may simply have been a case of poor fit. Consider searching for a student who fits with your particular firm’s culture – just like lawyers, law students come to the practice of law with different interests, goals and personalities, and there is a

place with a good fit for every student.

Law students are well educated and eager to learn. They are capable new professionals who will soon become our fellow colleagues. Any lawyers/firms who are interested in hiring a part-time, summer, or articling UBC or UVic law student can visit www.law.ubc.ca/careerservices/ employers.html or www.law.uvic. ca/lco/employers.php. Law students outside UBC and UVic Law seeking articles in B.C. are encouraged to contact their law school CSO and purchase a copy of the UBC Law Legal Careers Guide at www.law. ubc.ca/careerservices/guides.html.

(L-R) Alison Cowan, Law Careers Officer, UVic Faculty of Law and Jennifer Lau, Acting Director of Career Services, UBC Faculty of Law. aUGUST 2012 / BarTalk 15

feature KEVIN WRIGHT and JONATHAN GILHEN

The Deal is Not Quite Over Competition Bureau secures divestiture order in post closing challenge

O

n May 29, 2012, the Competition Tribunal decided a case that has implications for all transactional lawyers.

It ordered CCS Corporation (now Tervita Corporation) to divest the shares or assets of Babkirk Land Services Inc. which, under previous ownership, had secured regulatory approvals for development of a secure hazardous waste landfill in North-Eastern British Columbia (NEBC).

Background CCS is the owner of the only two operating secure landfills in NEBC permitted to accept solid hazardous waste. These landfills primarily service oil and gas industry operators seeking to dispose of materials generated through drilling activities.

On January 7, 2011, CCS acquired the shares of Complete Environmental Inc., the parent of Babkirk, from five individuals for just over $6 million. The acquisition fell well below the financial thresholds for mandatory pre-closing notification to the Competition Bureau. On January 24, 2011, the Commissioner of Competition filed an application with the Tribunal seeking a remedy under the merger provisions of the Competition Act. Although Babkirk had not yet constructed a landfill, the Commissioner contended the acquisition was a merger that prevented, or was likely to prevent, competition substantially by eliminating the only likely imminent competitor

16 BarTalk / AUGUST 2012

for secure landfill services in NEBC. The vendors were also named as respondents since the Commissioner sought an order to dissolve or undo the acquisition. Normally the Bureau’s preferred merger remedy is divestiture by the purchaser.

Importance of the Tribunal Decision Following a hearing, the Tribunal concluded the acquisition was a “merger” that “… was more likely than not to maintain the ability of CCS to exercise materially greater market power” and which was “likely to prevent competition substantially.”

The Tribunal rejected CCS’s defence that the merger was likely to achieve efficiencies that outweighed any anticompetitive effects. However, the Tribunal held that the Commissioner’s proposed dissolution remedy would be overbroad, intrusive and less effective and ordered divestiture instead.

Perhaps the most important lesson from this case is to not take the Commissioner for granted.

Transactional lawyers acting for buyers and sellers should routinely incorporate competition law due diligence. Consider the following: The Commissioner is normally selective in bringing contested merger cases, with the CCS case being only the 6th contested merger decided by the Tribunal since 1986.

However, the Commissioner may

pursue any merger, including one that is localized or is relatively small in terms of deal size, for up to one year after closing.

The Tribunal ruled that the concept of “merger” is broad and includes the acquisition of nonoperational assets obtained in the development of a business.

An order may be issued even where the parties did not expect to compete absent the merger. The Tribunal found that although the vendors intended to operate Babkirk as a bioremediation facility primarily, eventually they would have aban-

doned that plan and they (or new owners) would have competed with CCS directly by landfilling.

Vendors should assess competition risks and consider bargaining for indemnities or other compensation in the event of a post-closing challenge under the Competition Act. Here, the vendors were subjected to expensive litigation even though they were ultimately vindicated with a costs award against the Commissioner.

The Tribunal’s decision may be found at www.ct-tc.gc.ca. Tervita has appealed to the Federal Court of Appeal.

(L-R) Kevin Wright and Jonathan Gilhen are members of Davis LLP’s Competition and Antitrust Law Group. They acted for the vendors in the CCS case.

news&events annual event RECAp

2012 Golf Tournament The 16th Annual Canadian Bar Association/Vancouver Bar Association Golf Tournament held on June 21, 2012 raised almost $5,000 in support of the Law Student Scholarships.

Winning Team: Bacchus Law Corporation a score of 64 (See photo to the right): Tom

Brown Green Chris Little Scott Sheldon

Putting Contest winners – Sponsored by Dorsey & Whitney LLP: 1st

Place: Craig Ash, Oyen Wiggs Green and Mutala LLP 2nd Place: Tom Brown, Bacchus Law Corporation 3rd Place: Ken Anderson

Winning team with a score of 64

Penny

Most Honest Golfers: Harper Grey LLP (See photo to the right): Sandra

Kovacs Crockett Janice Shomphe Michelle Ward Maureen

Closest to the Pin winner – Sponsored by The CBABC: Brad Sollis, Bull Housser Tupper LLP

WOMEN’s Longest Drive winners: Thoralee Donna

Nomm Chan

Men’s Longest Drive winners: Cameron

Wong, Webster Hudson and Coombe Greg Palm, Palm and Company Legal Counsel

The CBABC and the VBA thank our Hole sponsors below, who provided many bonuses for golfers as they made their way around the course.

Continuing Legal Education Society of B.C. Dorsey & Whitney LLP ProGroup Sales and Leasing The Counsel Network Kalev Fitness Solution Park N’ Fly Still Creek Press

A LITTLE PRE-GAME Warm-Up

MOST HONEST GOLFERS

To read more detailed infor\\ mation about the event, view photos and the list of generous silent auction sponsors go to www.cba.org/bc/About_Us/ events_2012/golf_2012.aspx.

GO ONLINE FOR MORE INFORMATION

FORE!

PROGRAM

Lawyer Alert for This Year’s Mentorship Program The CBABC mentorship program is recruiting again this year at the three law faculties in B.C. Every year lawyers old and young join this exceptional roster, leading new law students into the maze of legal life in the role of mentor.

This is one of the most sought-after programs on campus and depends wholly on lawyers volunteering to be mentors. If you are interested in participating as a mentor, please contact the UVic student rep at uvic.mentorship@bccba.org,

the UBC student rep at ubc.mentorship@bccba.org or the TRU office at apappas@ tru.ca and you will be matched with a student in time for the mentoring receptions at each university in October.

aUGUST 2012 / BarTalk 17

news&events CBA NATIONAL NEWS

CLC Conference in Vancouver It’s not too late to register for the Canadian Legal Conference in Vancouver, featuring Premier Alison Redford!

CBA NATIONAL NEWS

SCC Intervention: Cojocaru v.

B.C. Women’s Hospital & Health Centre et al.

The CBA has been granted leave to intervene before the Supreme Court of Canada in the appeal of Cojocaru v. B.C. Women’s Hospital & Health Centre et al. The SCC will consider the legal and ethical duties of judges and the judiciary’s relationship with members of the Bar who provide written argument before a court, and whether a court can or should adopt a counsel’s argument verbatim.

The CBA will argue that the

court should avoid absolutes, and whether a trial judge’s adoption of a party’s submissions verbatim in their reasons justifies setting that decision aside and ordering a new trial depends on the circumstances of the particular case.

The CBA’s pro bono legal counsel are Mahmud Jamal and Raphael Eghan of Osler in Toronto.

The case is scheduled to be heard before the SCC on November 13, 2012.

Join us from August 12-14 at the Vancouver Convention Centre for a national legal experience: the Canadian Legal Conference.

In addition to top networking and educational opportunities, the conference features Alberta Premier Alison Redford, who will address delegates at the breakfast on August 14. Redford brings a leadership perspective on building relationships inside and outside of politics, as both lawyer and politician.

Before turning to politics, Redford worked on a number of international development projects, including a constitutional development project in South Africa for the CBA. It’s not too late to register!

If you can’t make it for the entire conference, day passes are available.

AWARD NOMINATIONS

Georges A. Goyer, QC Memorial Award for Distinguished Service Nominations are currently being accepted for the 2012 Georges A. Goyer, QC Memorial Award for Distinguished Service.

18 BarTalk / AUGUST 2012

Deadline is September 28, 2012.

For details visit \\ www.cba.org/bc

Visit cba.org/vancouver2012 \\ to learn more.

CBA NATIONAL NEWS

Lindy Rouillard-Labbé Wins 20122013 Viscount Bennett Fellowship Lindy Rouillard-Labbé of Montreal has been awarded the 2012-2013 CBA Viscount Bennett Fellowship for graduate legal studies.

Ms. Rouillard-Labbé, 29, holds a bachelor’s degree in international relations and international law, as well as a law degree, from the Université du Québec à Montréal.

With the fellowship, she plans to pursue her master’s degree in law at Stanford University, specializing in compensation for victims of natural disasters.

The fellowship, established under the terms of a trust by former Prime Minister and CBA President Viscount Bennett, is awarded annually to a Canadian law student to encourage high standards of legal education, training and ethics.

CBA NATIONAL NEWS

Stephen Hanson Announces Retirement After 36 years with the CBA, Senior Director of Communications Stephen Hanson has decided it’s time to say goodbye. “I’ve discovered there’s never a good time to leave. There’s always one more report or speech to write, one more committee to serve, or one more task force in need of a communications plan,” said the veteran communicator in announcing his decision.

“The CBA won’t be the same without Stephen,” says CEO John Hoyles. “His knowledge and experience made him the ‘go-to’ person for communications advice. He successfully implemented a communications strategy that raised the profile of the CBA to the point that the Association is recognized

by Canadians as the voice of the legal profession.”

Stephen retires in September. In the meantime, we’d like to hear from you. If you worked with Stephen and would like to share a memory, please send an email to Hannah Bernstein at hannahb@cba.org.

CBA NATIONAL NEWS

Valli Chettiar & Judge J. Gary Cohen Among Award Winners Recognized at CLC Vancouver Numerous distinguished CBA members and supporters are receiving awards for their outstanding achievements during the Canadian Legal Conference in Vancouver, August 12-14.

Among these winners are Vancouver’s Valli Chettiar and Surrey’s Judge J. Gary Cohen.

Corporate/commercial lawyer Valli Chettiar receives the Touchstone Award for her accomplishments in promoting equality in the Canadian legal community. As the first Equality representative to sit on the CBABC Executive Committee, she provided valuable input on complicated and sensitive issues affecting the profession. A founding member of the Law Society of British Columbia’s Equity and Diversity Committee, she was also instrumental in the creation of the British Columbia South Asian Bar Association.

The Hon. Judge J. Gary Cohen of the Provincial Court of B.C. receives the SOGIC Hero Award for his contributions in support of the lesbian, gay, bisexual, transgendered, and two-spirited (LGBTT) communities in Canada. A trailblazer for LGBTT rights, Judge Cohen’s contributions while serving on the CBA’s Gender Equality Committee made possible the formation of groups such as SOGIC. Throughout his career, he has served as a role model and mentor to many, and has effectively brought about a cultural shift amongst lawyers and the judiciary in terms of how LGBTT people and issues are considered.

For more information on CBA awards \\ and winners, visit CBA.org.

aUGUST 2012 / BarTalk 19

news&events NEW BROCHURE BY Legal Services Society

EVENT

Is Your Client Safe? A Lawyer’s Guide to Relationship Violence

Nanaimo Battle of the Lawyers’ Bar Bands

Relationship violence is a reality for some family law clients.

Knowing whether your client has suffered relationship violence can greatly affect the legal advice you provide and help to keep your client, you, and your staff safe.

When leaving an abusive partner, your client faces an increased risk of further violence. This violence may be directed not only at your client but also at the people who help your client.

To address these risks to your client, you, and your staff, the Legal Services Society (LSS) and the Ending Violence Association of B.C. (EVA) have partnered to

NEWS

CLEBC Update B.C. BUSINESS DISPUTES WINS PUBLISHING AWARD British Columbia Business Disputes, published in August 2011, has joined the ever-growing list of CLEBC award-winners. A recipient of ACLEA’s 2012 Award of Outstanding Achievement, this manual covers a wide range from common-law torts to rights of action conferred under federal and provincial statutes. The book guides solicitors advising clients and litigators pursuing or

20 BarTalk / AUGUST 2012

create a new brochure. Developed through consultation with family law lawyers, the brochure explains the signs of abuse, whether your client may be at risk, what to do if your client has been victimized, and where your client can get help.

Complementing the brochure is a series of online fact sheets that provide more information and resources for you, your staff, and your clients. Topics include encouraging disclosure, safety planning for your workplace, and resources for clients.

The brochure and fact sheets are available to read online on the publications page of the LSS website (www.legalaid.bc.ca/publications).

You can order free copies of the brochure from Crown Publications (www.crownpub.bc.ca).

defending claims. Each chapter analyzes key elements, defences, jurisdiction, remedies, leading case law, sample pleadings and practice tips.

NEW B.C. ADMINISTRATIVE LAW PRACTICE MANUAL The British Columbia Administrative Law Practice Manual was launched in June 2012. It is designed for use by lawyers with occasional administrative law files, as well as lawyers who are regularly before decision-makers, decision-makers themselves (and their counsel), administrative law litigators in the Superior and Federal Courts, and judges in judicial

Mark your calendars for the 5th annual Nanaimo Battle of the Lawyers’ Bar Bands, September 29, 2012. We have again secured the Queens Hotel for the event and have four bands returning, including the current trophy holder, Halfcut (Nanaimo), Standard of Hair (Vancouver), Carpe Groovum (Nanaimo) Blind Elmo (Victoria) and two new entries this year – The Bar Stars and The Cover Girls (both are all girl bands from Nanaimo).

Tickets are $20 in advance and $25 at the door. Band members will be selling tickets and for more information contact Nicole Smith nesmith@rlr-law.com or James Farenholtz at jamesfarenholtz@ gmail.com. Proceeds go to the Benevolent Society.

reviews, statutory appeals, stated cases, and appeals from these.

The first part covers administrative law decision-making, decision-makers, and matters relevant to “hearings” at the decision-making level. The second part covers review by the courts.

Annotated precedents, a hyperlinked list of decision-makers’ websites, and a selected bibliography round out the manual.

Contact CLEBC customer service at www.cle.bc.ca or 604-893-2121 for more information about CLEBC products and features.

B.C. legislative update

Acts In Force Current from May 2 to July 3, 2012 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclusively at www.cba.org/bc.

BUDGET MEASURES IMPLEMENTATION ACT, 2012, S.B.C. 2012, C. 8 (BILL 21) Sections 19 to 35 are in force January 1, 2012

COASTAL FERRY AMENDMENT ACT, 2012, S.B.C. 2012, C. 28 (BILL 47) Act is in force June 25, 2012

COMMUNITY, SPORT AND CULTURAL DEVELOPMENT STATUTES AMENDMENT ACT, 2011, S.B.C. 2012, C. 2 (BILL 8) Sections 1 to 4 and 13 to 15 are in force September 1, 2012

ENERGY AND MINES STATUTES AMENDMENT ACT, 2012, S.B.C. 2012, C. 27 (BILL 30) Section 5 is in force June 25, 2012.

Sections 13(c) and (d) and 21 to 23 are in force June 25, 2012

FAMILY LAW ACT, S.B.C. 2011, C. 25 (BILL 16) Sections 1 to 256, 259, 260, 262 to 299, 301 to 314, 316 to 335, 338 to 351, 357 to 368, 370 to 380, 382 to 387, 389, 391 to 396, 398 to 402, 406, 407, 412, 413, 415 to 425, 427 to 436, 438 to 441, 443 to 462, 465 to 469, 471 and 479 to 481 are in force March 18, 2013

FNCIDA IMPLEMENTATION ACT, S.B.C. 2012, C. 21 (BILL 43) Sections 4 to 9 are in force June 25, 2012

FORESTS, LANDS AND NATURAL RESOURCE OPERATIONS STATUTES AMENDMENT ACT, 2011, S.B.C. 2011, C. 18 (BILL 6) Section 5 is in force June 25, 2012

FORESTS, LANDS AND NATURAL RESOURCE OPERATIONS STATUTES AMENDMENT ACT, 2012, S.B.C. 2012, C. 14 (BILL 26) Sections 13 to 17 are in force June 25, 2012

For a full list of Acts in Force go online to www.cba.org/bc.

branch & bar

Calendar

August

12-14 CBA Canadian Legal Conference – Vancouver 15 Options for Lawyers Workgroup – The Introvert Advantage 21 CBABC PD Webinar (with In-Person Option): Practice

Tips for the New B.C. Limitation Act (Bill 34)

September

12 CBABC PD Webinar/In-Person: Lawyering Skills for

Client Care and Relations 22 Provincial Council NEWS

Surrey-Based Law Firm Donates $50,000 to RCH Foundation McQuarrie Hunter stands by Royal Columbian Hospital in the case for better health care.

Photo: (from left) McQuarrie Hunter LLP Managing Partner Tako van Popta, Partners Wade Winkler and David Worthington (far right) present $50,000 to RCH Director of Medical Imaging Dr. William Siu and RCH Foundation President and CEO Adrienne Bakker in the construction zone of RCH’s new Multipurpose Interventional Suite. Part of the firm’s donation will go toward this new suite that will help expand cardiac, stroke and aneurysm care at RCH. AWARD RECIPIENTS

Insurance Practitioner of the Year Winners

2013 One Stop ...One Click Away!

The easy and convenient way to purchase, order, advertise, and update your information.

(L-R) Winner David J. Bilkey, Insurance Section Chair Karen Weslowski and Winner Richard Lindsay, QC

Visit cbabcdirectory.info for details. aUGUST 2012 / BarTalk 21

news&events Sections Tip Section Year 2012/2013: Network AND Get Your CPD Each year CBABC Sections host a combined total of more than 350 different meetings. Most meetings are highly informative and also meet the Law Society’s CPD requirements, including the ethics and practice management components. This makes it easier to find like-minded lawyers, no matter where your interests may lie and complete your CPD requirements all in one place. Go online to enroll for the 2012/2013 year today: http://tinyurl.com/cbabcsections.

Outside the downtown Vancouver core? Join us by Webinar – a third of all Section meetings are conducted by remote technology, making it possible to connect whether you are in Abbotsford or Vernon.

PRACTICE TIP FOR THE CIVIL LITIGATOR IN SUPREME COURT: Counsel of Record

The Eleventh Annual Battle of the Bar Bands took place at the Commodore Ballroom on June 1. The night’s performers included Blind Elmo, The Retainers, Mr. Fancy Education, GNFNR LLP, House Arrest, Standard of Hair and No Reply with The Disclaimers (above) walking away victorious at the end of the night.

Practice tip: A lawyer must notify the court registry in writing and then serve it on the opposing parties to become counsel of record in addition to any statement made to the court during a hearing. Failure to do so could result in a default order being made against your client because either the court or the parties did not know how to notify you of a hearing.

The form to use: Form 110 (Notice of Appointment or Change of Lawyer) found at: www.ag.gov.bc.ca/courts/forms/sup_civil/110.pdf The rule to follow: Rule 22-6(1) in the Supreme Court Civil Rules.

Ministry of Justice, Court Services Branch

EVENT RECAPS

CBABC WLF AGM and Annual Education Day On May 31, 2012, the CBABC WLF held its AGM at the Law Courts Inn. As in previous years, the AGM was held in conjunction with a networking reception and a speakers’ panel event.

This year’s panel discussion was called “Demystifying the Role of In-House Counsel: Rewards and Challenges.” Jennifer Davenport, Deputy Public Guardian and Trustee, Catherine Lau,

22 BarTalk / AUGUST 2012

Telus Communications Inc., and Elizabeth Liu, LINK Business Law Group shared their experiences and journeys from private practice to in-house counsel.

The CBABC WLF held its annual Education Day on May 4, 2012.

The topic “Power Negotiation and Communication Strategies for Women Lawyers” was well received by attendees from various practice areas and levels of call.

Seasoned experts provided strategies for effective negotiation and exercises on communication skills, specifically tailored for women. One highlight of the day was an honest, behind-the-scene exposé of how the court views certain behaviours of counsel, provided

by The Honourable Madam Marion Allan.

grantsapproved Law Foundation of British Columbia

Continuing Programs and Projects The Board of Governors of the Law Foundation of B.C. met on June 23, 2012 and approved funding for a number of continuing programs and projects.

Chair Margaret Sasges is pleased to announce that funding totalling $3,773,214 was approved for 42 programs and projects: Funding totalling $2,765,926 was approved for the following 25 continuing programs: $306,920 GREATER VANCOUVER LAW STUDENTS’ LEGAL ADVICE SOCIETY

Law Students’ Legal Advice Program

$279,310 B.C. BRANCH OF THE CANADIAN BAR ASSOCIATION

Dial-A-Law, Lawyer Referral Service and Law Week $175,000 B.C. COALITION OF PEOPLE WITH DISABILITIES

Advocacy Access Appeals Program

$168,000 TOGETHER AGAINST POVERTY SOCIETY

Legal Advocacy Programs ABBOTSFORD COMMUNITY SERVICES SOCIETY $150,000 Regional

Community Legal Advocacy Program $109,000 Legal Advocacy Program $150,000 KETTLE FRIENDSHIP SOCIETY

Mental Health Legal Advocacy Program $143,866 NELSON CARES SOCIETY

The Advocacy Centre

$91,200 B.C. FAMILIES IN TRANSITION

Legal Support Services Program $89,210 COMMUNITY CONNECTIONS SOCIETY OF SOUTHEAST B.C.

Travelling Poverty Law Advocate Program $87,670 MOSAIC

Legal Advocacy Program and Front Line Advocacy Workers Coordination Program $82,500 KI-LOW-NA FRIENDSHIP SOCIETY

Aboriginal Legal Advocate Program $75,000 ACTIVE SUPPORT AGAINST POVERTY

Legal Advocacy Program $75,000 CHIMO CRISIS SERVICES SOCIETY

Outreach and Advocacy Service $75,000 CONTACT WOMEN’S GROUP SOCIETY

Legal Advocacy Program $75,000 FORT ST. JOHN WOMEN’S RESOURCE SOCIETY

Poverty Law Advocacy Program

$75,000 KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETY

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

Legal Advocacy Program

$65,000 SOUTH PEACE COMMUNITY RESOURCES SOCIETY

South Peace Outreach Legal Advocacy

$42,000 SOCIAL HEALTH AND ECONOMIC DEVELOPMENT SOCIETY OF BELLA COOLA

Bella Coola Legal Advocacy Program

$20,000 PROVINCIAL COURT OF BRITISH COLUMBIA

Judicial Interns Circuit Court Program

Funding totalling $632,288 was approved for the following 13 large projects: $75,000 LEGAL SERVICES SOCIETY Public Legal Education and the new Family Law Act $75,000 UNIVERSITY OF VICTORIA Family Law Practitioner in Residence $62,000 COMMUNITY LEGAL ASSISTANCE SOCIETY Residential Tenancy Administrative Justice Project $60,000 B.C. LAW INSTITUTE Technology, Remoteness, Disability and Evidence $60,000 PARENT SUPPORT SERVICES OF B.C. Grandparents Raising Grandchildren Legal Information Seminars $60,000 WEST COAST ENVIRONMENTAL LAW ASSOCIATION Managing Cumulative Effects in B.C.: Law Reform Solutions

$112,500 MPA – MOTIVATION, POWER AND ACHIEVEMENT SOCIETY

$75,000 PENTICTON AND AREA WOMEN’S CENTRE

Court Services Program

Poverty Law Advocacy Program

$55,000 ENVIRONMENTAL MINING EDUCATION FOUNDATION Best Practices Mining Code for First Nations

$93,750 SOURCES COMMUNITY RESOURCES SOCIETY

$75,000 PORT ALBERNI FRIENDSHIP CENTRE

$53,500 JUSTICE EDUCATION SOCIETY OF B.C. Court of Appeal B.C.: Online Help Guide

Legal Information and Advocacy Program

Outreach Legal Advocacy Program

$36,278 JOHN HOWARD SOCIETY OF BRITISH COLUMBIA Fact Sheets to Educate the Public on B.C. Law Affecting Ex-Offenders $32,210 B.C. COALITION OF PEOPLE WITH DISABILITIES Duty to Accommodate: Research and Legal Education for Community Providers of Emergency Response Services $22,300 CANADIAN RED CROSS SOCIETY, LOWER MAINLAND REGION Red Cross First Contact: Keeping Pace with Refugee Reform $21,000 KOOTENAY BOUNDARY COMMUNITY SERVICES CO-OPERATIVE Columbia Basin Law Share Project $20,000 SALT SPRING ISLAND COMMUNITY SERVICES SOCIETY Salt Spring Island and Southern Gulf Islands Legal Education

Funding totalling $375,000 was approved for the following four grants: $200,000 ECOJUSTICE CANADA SOCIETY B.C. Litigation Program $75,000 B.C. COALITION OF PEOPLE WITH DISABILITIES CPP Disability Program $50,000 ENVIRONMENTAL LAW CENTRE SOCIETY, UNIVERSITY OF VICTORIA ELC Associates Program $50,000 TERRACE AND DISTRICT COMMUNITY SERVICES SOCIETY Poverty Law Advocate Program

For full details of \\ the programs and projects that received funding, please visit www.lawfoundationbc.org.

aUGUST 2012 / BarTalk 23

professionaldevelopment email: PD@bccba.org

WEBSITE: CBA.ORG/PD \\

CBABC courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, advance one’s career, practice and business. CBABC prides itself in bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management component for 2012 Law Society of British Columbia reporting.

Upcoming Programs CBABC Branch WebinarS (with in-person option) Lawyering Skills for Client Care and Relations Date: September 12, 2012

practical lawyering skills to assist you to take better care of your clients and improve your client relationships.

2012

Speakers: Debra L. Burton, Rogers Bobert & Burton, Lawyers and Gary Mitchell, On Trac Coach

Hurry – early bird registration rate ends September 14!

Webinar Repeats

Moderator: Stuart Rennie, Legislation and Law Reform Officer, CBABC Location: Vancouver Details: Our expert presenters, a legal coach and a partner in a law firm, will take you through the pitfalls and opportunities of the lawyer-client relationship.

In this webinar, you will learn

San Francisco, November 23-25?

Don’t miss out on a great weekend to earn all your 12 hours of required CPD, learn from amazing speakers and network! Visit our website for registration, hotel and flight discounts: www.cbabc-conference.org

CBABC Seventh Annual Branch Conference, San Francisco, California Have you registered for our upcoming Branch Conference in

Missed a Webinar? Finally have some downtime to catch up on your CPD*? Contact our Professional Development Department to schedule a repeat viewing of our Webinar recordings whenever it is convenient for you. *Please note that in order to qualify for CPD, repeat recordings must be viewed in groups of two or more lawyers.

\\ For a complete list of registration details and requirements, please contact Professional Development

Department 604-646-7866 or 1-888-687-3404 ext. 329 or email pd@bccba.org.

memberservices email: MEMBERS@bccba.org

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 from the drop down list under Membership.

Playland/PNE – Playland is open. It is not only for children of all ages but there are other opportunities \\ such as a Corporate BBQ to entertain your staff this summer.

BCLMA/CBABC Support Staff Compensation and Charge-Out Rates Surveys 2012. Your participation in \\

this survey enhances the results as well as provides you with discount rates. Stay competitive and know your market!

24 BarTalk / AUGUST 2012

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aUGUST 2012 / BarTalk 25

barmoves Who’s Moving Where and When Brian Yuen

Peter F. Buxton

has recently joined Pryke Lambert Leathley Russell LLP as an associate.

Brian’s practice is litigation based and focuses on insurance defence and personal injury law.

has joined Hamilton Duncan Armstrong + Stewart Law Corporation as associate counsel. Peter will continue to serve his clients in the areas of personal injury and commercial litigation.

Jim M.J. Alam

Allan Watchorn

is a new partner at Koffman Kalef LLP. Jim practises in the areas of banking, corporate commercial, commercial real estate and video game law.

has joined Hamilton Duncan Armstrong + Stewart Law Corporation as associate counsel. Allan will continue to serve his clients in the areas of personal injury, estate litigation and insurance defence.

Micah S. Clark

Karen Tse

is now an associate with Edwards, Kenny & Bray LLP. Micah has joined the Civil Litigation and Environmental Practice groups and has a general civil litigation practice.

has joined the office of Jamal Law Group as an associate after moving from Peck and Company. Her practice focuses on family and criminal law.

Stephanie Melnychuk

Anna K. Fung, QC

has joined Oyen Wiggs Green & Mutala LLP as an articled student. She will be called to the B.C. Bar in 2013.

has joined TimberWest Forest Corp. in Vancouver as its vice president, legal and general counsel. Most recently, she was counsel and chief privacy officer at Intrawest ULC.

Rami Filfil

Claudia Poon

has joined Oyen Wiggs Green & Mutala LLP as an associate. Prior to joining OWGM, Rami was also called to the Bar of Ontario in 2010.

joins Fraser Milner Casgrain’s (FMC) Litigation group as an associate.

Claudia articled with FMC and was called to the Bar in May 2012.

26 BarTalk / AUGUST 2012

newmembers Space is at a premium and available on a first-come first-serveD basis so send your Bar Move (max. 30 words) and photo to CBA@BCcba.org now.

FOR MORE BAR MOVES GO TO BARTALK ONLINE

Mary Ellen Boyd has joined Singleton Urquhart LLP as associate counsel. Mary Ellen will be a part of Singleton’s Alternate Dispute Resolution group, where she will act as both a mediator and arbitrator.

Gary S. Gill has been admitted as an equity partner of Sangra Moller LLP. Gary’s practice focuses on corporate finance, securities, mergers and acquisitions, commercial law and general corporate representation.

Rod Talaifar has been admitted as an equity partner of Sangra Moller LLP. Rod’s practice is focused on mergers and acquisitions, securities, corporate finance, mining and commercial law.

May & June 2012 Associate Member Siddhartha Maharaj

Cindy (Qin Ji) Zheng

Regular Member

Law Students

Subreen Bedi

Ava Aslani

MacLean Family Law Group Vancouver Kim L. Davis

McConnan Bion O’Connor & Peterson Law Corporation Victoria Hossein Faramarzi

Access Law Group Vancouver Jonathon E. Fung

Lindsay Kenney LLP Vancouver Marcus Turner

Fasken Martineau DuMoulin LLP Vancouver

Katherine Cobban formerly of Blake, Cassels & Graydon LLP, joined Legacy Tax + Trust Lawyers at the end of March. He is practising in the areas of tax planning and tax litigation.

Bull, Housser & Tupper LLP Vancouver Terry Gao

has joined the partnership at Clark Wilson LLP. Jeffrey is a member of the firm’s Intellectual Property and Higher Learning groups. He was called to the Saskatchewan Bar in 1999 and the B.C. Bar in 2002.

McQuarrie Hunter LLP Vancouver

Fasken Martineau DuMoulin LLP Vancouver Andrew W. Beesley

North Vancouver

Danielle N. Bensler

Vancouver

Alexandre Blondin

Vancouver

Navjot K. Bola

Varsity Lakes

Catherine Bright

Chilliwack

Michael R. Brown

West Vancouver Mia Chung

Lawson Lundell LLP Vancouver Thomas William Clifford

Whistler

Camille J. Cook

Vancouver

Hanna L. Davis

Duncan

McCarthy Tétrault LLP Vancouver

Samar Dehghan

Ling Jiang

Geoffrey Dittrich

Surrey

Michael Li

Blake, Cassels & Graydon LLP Vancouver

Jeffrey Vicq

Hutchison Oss-Cech Marlatt Victoria

Jardine Lloyd Thompson Pty. Ltd. Sydney

Articling Students Luke W. Mlynarczyk

Fy Virani

Devon M.H. Peck

Harper Grey LLP Vancouver Reilly Pollard

Lawson Lundell LLP Vancouver Helen M. E. Sevenoaks

Bull, Housser & Tupper LLP Vancouver

West Vancouver

Lawson Lundell LLP Vancouver Jennifer Flood

Vancouver

Danielle R. Fostey

Alexander Holburn Beaudin & Lang LLP St. Paul To view all new \\ members, including Law Students, please visit www.cba.org/bc/

bartalk_11_15/08_12/ membership.aspx.

AUGUST 2012 / BarTalk 27