Proud to be a lawyer, says CBA President Johnstone NEWSLETTER OF THE CANADIAN BAR ASSOCIATION, B.C. BRANCH
"I'm proud to be a lawyer. I'm not apologizing for being a lawyer and I will speak out about the profession," said Cecilia Johnstone, Q.C., President of the National CBA, to members at the Sept. 10, 1993 B.C. Branch Annual Meeting. Johnstone also reported that the recently released report, "Touchstones for Change: Equality, Diversity and Accountability," has been controversial but there appears to be a will to move forward with the Bar as a leader on this issue for all professions.
SEPT/1 993
She briefly noted that during her term as president, she will focus on programs to demystify the law, alternatives to disputes in court, health law issues (both ethical and moral questions), and open communication with the Branches. She further reported that the National CBA deficit will be eliminated in this fiscal year. C
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Cecilia Johnstone, Q.C., (lejt), National CBA President in 1993/94 is joined by Jack Dunphy, Alberta Branch President at the 1992/93 Annual Meeting of the B.C. Branch on Sept. 10
Important Notice;
Workers Compensation Act Amendments increase law firm operational costs
VOLUME 5 NUMBER 7
United Way ..................... 2 "Dear Thelma" ............... 3 PLE survey results ........ 4 SectionTalk .................... 5 Legislative Update ......... 7 Vehicle Records .......... 10 AGM resolutions .......... 11 Provincial Council ....... 11 New tapes available .... 13 Financial pianning ....... 14
Bill 63, the Workers Compensation Amendment Act, 1993, will make Part 1 of the Workers Compensation Act more inclusive and will make it compulsory for all law firms to be covered under the Act. Previously most office workers were not included under the Act unless their employer was required to register under an existing rate group. All law firms must register and pay assessments as of the effective date, Jan. 1, 1994. Law firms may be included in the general retail store rate group or there may be a new rate category set up for this group. The current assessment for the retail stores category is $1.09/$100 of assessable payroll up to a maximum of $51,300 per person per annum, which will increase to $1.36/$100 in
January. Compulsory coverage will apply to associates who are employees, paralegals and staff. Under s.47 of the Act, the penalty for failing to file a return or assessment may be the capitalized value of an injury, which in a long-term disability case may be a substantial amount, enough to bankrupt a small firm. These changes may also affect premiums for private long and short term disability insurance that should be reduced as aresult of WCB coverage. However, if partners in law .firms do not want coverage under the WCB plan, which will be optional, they will have to rely on full coverage in their private plans. By withdrawing many
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Members making a difference: United Way campaigns under way There are 19 United Ways in British Columbia, all run by local boards of directors. Each United Way raises money for agencies in its own community. Giving to the United Way is "the way to help the most." Lawyers and law firm staff have been active leaders in supporting United Way campaigns throughout B.C. Prince George and District United Way Gerald Coole of Hope Heinrich is heading up the lawyers' campaign for the Prince George and District United Way again this year. United Way of Greater Victoria The 1993lawyers' campaign will be chaired for the third year by Doug Johnson, a partner with Skillings and Company. The 1992lawyers' campaign raised $50,000 from 197
Societies seek volunteer lawyers, assistance The Crohn's and Colitis Foundation of Canada is seeking volunteers to serve as members of the Senior Advisory Committee to help direct fund raising through specific projects, for medical research.
Volunteers would serve with local chapters and it is estimated that the committees would meet four times per year. For further information, contact Elma Stewart, B.C. Regional Director at 877-1007. The Elizabeth Fry Socl~ty of Greater Vancouver requires financial assistance to aid its seveenteen year old residential program for women. This program, Balaclava Residence, provides housing, counsellling, community referrals and per-
donors in the Greater Victoria area. This year's goal is $52,000. United Way of the Lower Mainland The United Way effort is being led by Brian Canfield from Farris Vaughn Wills & Murphy. His team includes Leo Amighetti, Q.C., from Russell & DuMoulin, Morley Koffman, Q.C. from Koffman Birnie & Kalef, David Pilley from Harper Grey Easton, Brenda Brown from Bougton Peterson Yang Anderson and Ted Zacks from McCarthy Tetrault. Last year the lawyers' campaign raised $275,000 - that includes both firm and individual donations from 30 of the largest firms in the Lower Mainland. Brian and his team are starting up several new campaigns this year and are expecting to raise $312,000 from the lawyers' section. sonal support to women. Donations are tax deductible. Further information can be obtained by contacting Rosemary Cryer at 873-5501. Donations can be sent to the Elizabeth Fry Society of Greater Vancouver, 2412 Columbia St., Vancouver VSY 3E6. Swim B.C. is looking for a volunteer solicitor, preferably a former swimmer who lives in the Greater Vancouver area, to provide 3 to 4 hours per week on a pro bono basis to assist with a variety of legal issues ranging from constitutional interpretations to contracts.
Swim B.C. is a province-wide organization representing the needs of both competitive Olympic bound athletes as well as recreation participants. With an annual budget of $800,000 and a full-time staff of five, Swim B.C. is active in the upcoming Commonwealth Games
Twelve-year-old lAura MacKenrot, who receives treatment at the Arthritis Society, participated in the United WtlJ. of the Lower Mainland campaign kiclro!f. the Arthritis Society is one of over 100 agencies funded by the United Way of the Lower Mainland.
Your donation to the United Way is used to support agencies in your community in Victoria as well as facility development, the Aquatic Foundation, athlete development and coaching education. Contact AI Heather at 734-7946 (local 302) if you are willing to volunteer or require further information. []
Law Courts Inn invitation The Law Courts Inn is pleased to invite you to its Weekly Social Night to reacquaint the Vancouver Bar with the Law Courts Inn and other members of the club. The social night will be held every Thursday between 4:30 p.m. and 7:00p.m. at the Inns of Court (public side). Come by for a drink and enjoy an opportunity to get together with old and new friends! []
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Dear Parker: "Who are those 'guys'?" Dear Thelma: Thanks for your informative note which you say you dashed off just after receiving your 1993-1994 CBA membership card and that handy 1994 pocket diary. That was an interesting reaction you experienced which you tell me was captured by that memorable line from the movie, Butch Cassidy and The Sundance Kid - "Who are those guys?" Well, Thelma, those "guys" is us - over 7,500 of us all together, men and women - practising lawyers, academics, judges, articling students and law students here in B.C. and over 37,000 of us across Canada. No, you are not alone in not knowing as much as you should about the advantages provided by your CBA membership. Here in B.C., with the privilege of universal membership, a lot of us take our CBA membership for granted. Sometimes, we forget about these advantages. Sometimes, when we were law students or in our articles, nobody ever explained the advantages to us. (That's right, law students and articling students do not receive their CBA membership automatically they've got to take that extra step and sign up and it's a real bargain!) Most often, we just don't recognize some of the things that the CBA is providing us on a daily basis -like the Telephone, FAX and Services Directory. A lot of our members know that the CBA is out there, right behind them, sort of like the faceless posse tracking Butch Cassidy and The Sundance Kid. But, they just haven't figured out who we are and what we are doing! You are right, we are different
than the Law Society. For one thing, our members are not fearful wheri they see our name on an envelope as part of the return address (just kidding!) Really, the important difference is that the Law Society has a statutory mandate and its focus must be the "public interest." The CBA on the other hand, looks after most of the other important responsibilities and duties of our profession that don't fall within the statutory power of the Law Society. And besides, we are a heck of alot more interesting than our friends the Benchers!! Just to remind you, Thelma, it's "us", your B.C. Branch of the CBA who has the responsibility to review provincial legislation, initiate law reform measures, advance and improve the administration of justice, and to help ensure that the continuing legal education needs of lawyers are being met. While the Law Society has got "public interest'' as a mandate, we have proper self interest as part of our "to do list." Between us, we cover the bases and try to coordinate our efforts. Put it all together and it's a big job, Thelma! And it's one that is being tackled by a tremendous number of hard working volunteers everywhere in the province. Some of us don't remember when we have participated in helping to get the job done. You say you can't remember the last time you went to a CBA meeting. Well, I checked for you. You are a member of 5 of our 55 practise sections. We've got over 13,000 section registrants. Besides receiving the notices and minutes and buying sets of section papers, you've been going to at least two sections meetings a month - those are CBA meetings and that helps to get the job done. Sections are just one
J. Parker Mac:Olrthy CBA (B.C.Branch) President 93/94
way we tackle the task. I see you've already signed up and received some of those 58,000 referrals from the Lawyer Referral service. One of your partners helped organize Law Week at your local courthouse last year. You probably guessed it by now, the CBA sponsors both of those programs. One thing you haven't sent us is a note telling us which of our 45 Branch Committees interest you. We are always looking for volunteers to help deal with everything from legislation and law reform, communications and legal aid to the thorny topics of no fault automobile insurance and the notaries issue. Tell us your interests, Thelma, and how you want to help. I know this kind of involvement is not everybody's cup of tea, but it's a way you can make a real contribution and influence change. I can't agree with you more when you tell me that it's important to receive something tangible for your membership dollars. Believe me, there are lots of tangibles- think about
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Immigrants report barriers, solutions to legal information needs Immigrants are keen to learn about the laws of their new country but face barriers caused by language, lack of timed ue to family and work, and lack of information about where to seek legal information. These are some of the key findings of a $60,000 survey of five immigrant communities in the Greater Vancouver area conducted by Dr. Brian Burtch of SFU and Kerri Reid of Malaspina College for the People's Law School. The research project, funded by the Federal Department of Justice and the Ministry of the Attorney General of B.C., conducted face-to-face interviews with 300 people from five immigrant communities. Bi-lingual research assistants interviewed equal numbers of men and women from the Punjabi, Chinese, Hispanic, Vietnamese and Polish communities. The project, called Discovering
Barriers to Legal Education: First Generation Immigrants in Greater Vancouver, sought to identify problems faced by immigrants in accessing legal information, as well as make recommendations for improvements in legal education for immigrants. Half of those interviewed had attended a free law class by the People's Law School, while half had not. Authors Burtch and Reid concluded that public legal education programs "do aid settlement by providing knowledge of a new system which reduces feelings of isolation and subsequently proves to be empowering." Members of all five groups reported similar barriers to legal education, including: •
lack of English language skills
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the complexity of the law and legal terminology
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lack of knowledge about sources of legal information, and
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lack of time due to work and family duties.
Based on respondent's suggestions to reduce barriers to legal information for immigrants, the following recommendations were forwarded: •
more free law classes on more topics and in more locations
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more speakers in immigrant languages
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provision of child care services at classes
"Dear Thelma" (continued from page 3)
BarTalk (10 times a year), the National magazine (even client's read it) and the Canadian Bar Review (world renowned) and how about those great savings and discounts arranged by our good old Member Services Committee? Everything from discounts on hotels and travel to new car purchases, law office insurance, supplies and equipment -how do we get it so cheap? Our members are even provided with some "cradle to grave" programs. Our own Canadian Bar Insurance Association provides a full range of life and disability insurance products and we get a comprehensive package of financial planning and retirement savings programs through our Canadian Bar Financial Corporation. You're dead on when you say that someone should be providing our legislative decision makers with input from our profession. The CBA has been doing it for years, at both our own provincial Branch level and through the National office, on everything from judicial appointments, to confidential review of legislation, to coordinating submissions on
•
free bus passes for needy participants
•
more written materials in immigrant languages
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more use of the ethnic media both to publicize legal education events, as well as providing legal information
•
more training of immigrant-serving agency staff.
For further informtion about the research study, contact Gordon Hardy, Executive Director at the People's Law School, ?SB-2565.C legislative initiatives as well as law reform proposals such as the renowned lAw Reform for Sustainable Development in B.C. Government doesn't always listen, but collectively we have made a difference and a significant impact on them. Sometimes the message has got to be stronger - take for example the recent CBA/Law Society successful challenge of the Social Services Tax on legal services. Stay tuned for round two! The CBA also gives us and our families a terrific opportunity to meet people from across Canada -over80B.C.membersand their families were at the August AnnualmeetinginQuebecCity. The National Mid-Winter Meeting at Jasper this coming February looks like a winner too. Book the time off right now, Thelma. For sure, the CBA is more than a membership card and a pocket diary, Thelma. Thanks for reminding me that all of our members need a gentle reminder every so often. Sincerely,
~ acCarthy President 93/94
Editor's Note: the letter is fictitious; the facts aren't!
current plans to amend or replace this Act.
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In highlighting some of the new Rules, Ms. Huscroft and Ms. Adams noted the sweeping nature of the changes.
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Shelley Bentley
New provincial court family rules outlined Monna Huscroft of the Legal Services Branch, Ministry of the Attorney General and Charlotte Adams, Manager of Court Services, Western Communities, spoke to Victoria Family Section members about the new Provincial Court Family Rules. They began by examining the background, authority and application of the Rules and went on to highlight some of the more significant new Rules. The Rules were enacted under the Court Rules Act, S. 1(1) and S.1(2) rather than under the regulations pursuant to the Family Relations Act. Recent statistics show that unrepresented litigants are the largest users of Provincial Court. The new Rules are specifically geared towards these users. The Rules were developed by a committee struck by Chief Judge Collings, including private practitioners, court services representatives and the Attorney General Department's Policy Analyst. Enacted by Order in Council on April 1, 1993, the new Rules apply only to Family Relations Act and some Family Maintenance Enforcement Act matters. They do not apply to Family and Child Services Act matters because of
In maintenance applications financial statements must be files with the Court by both sides before or on the first appearance in Court. On failure to file the Court may order up to $5,000 for the benefit of the spouse, parent or child. A new form named "Consent to Court Date" will, upon signing by both parties, allow an adjournment of the first appearance or a request for a trial date without the necessity of appearing in Court. Parties will contact the Court Registry to obtain Court dates. An already scheduled Court date can be changed by use of this form as long as it is filed at least 21 days before the date sought to be changed. The new Rules now grant the Provincial Court the power to order production of documents and to order paternity testing. Applications for such orders are done by way of Notice of Motion. With respect to paternity testing, if a party refuses to provide a blood sample the Court may draw an adverse inference. The new Rules require parties to provide an address for service on each document filed and to notify the Court if their address changes. A party is entitled to rely on the address provided for all steps in that application. Service of any document other than a summons or subpoena to an address for service can be effected by registered mail. Personal service by anyone other than a peace officer is proven by affidavit. Service by registered mail can be proven by certificate.
Rules with respect to orders have now been made easier and more certain. If no lawyers are involved in an application, the court clerk will prepare the order. Lawyers for successful parties will be required to draft orders. If the other party is unrepresented, the consent of the other party is now dispensed with. Broad powers have now been given to judges to do what is fair, including cancelling or setting aside orders where the Rules have not been complied with. These potentially farreaching provisions contained in Rules 15(5) and (16) were included to help people to obtain decisions as fairly, quickly and inexpensively as possible.
NAFTA extends negative environmental impli路 cations of the FTA Michelle Swenarchuk of the Canadian Environmental Law Association outlined her views of the environmental problems posed by the proposed North American Free Trade Agreement (NAFTA). She argued that the NAFTA both repeats environmental problems created by the Canada-U.S. Free Trade Agreement (FTA) and worsens some of them. Environmental problems already associated with the Canada-U.S. FTA lie in four areas. The agreement puts limits on Canadian environmental management by committing Canada to perpetually supply the American market with all our natural resources, including water. The Canadian pesticide standard which is based strictly on health considerations has been lowered to harmonize with the
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SectionTalk (continued) American model of "risk benefit analysis." This standard is set by balancing health effects against economic loss to producers. The FfA was used to strike down a Canadian regulation under the Fisheries Act that required the landing of fish caught of the west coast for biological sampling. This is a particularly graphic example of how the FfA can be used in international courts to lower environmental standards. The Canadian government has also used it against the U.S. Environmental Protection Agency when they wanted to phase out asbestos use.
Finally the FfA has also committed Canada to a dispute resolution process that entrenches the right of the U.S. to use its countervail and antidumping laws to challenge Canadian laws at international trade panels. Canadian governments may be challenged if they pursue policies to conserve resources and maintain employment. This includes such policies and practices as local processing of lumber, subsidies for environmental protection, government procurement policies, and waste reduction requirements for food packaging. The NAFf A threatens to extend the negative environmental im-
Native Justice Section Chair Hugh Braker (centre) with Susan Tanco, Section CoSecretary and Treasurer (left), and Ian McCrae of the Department of Justice, Ottawa met prior to the special Section meeting.
Section leads in analysis, information to members The Native Justice Section held a special meeting on July 8, 1993 soon after major decisions were rendered by the Court of Appeal in late June. Three panels focused on native fishing decisions, hunting decisions and the Delgamuukw decision. Susan Tanka chaired the native fishing panel. Panel members included David Rosenberg, Louise Mandell, J. Keith Lowes,
and Ian McCrae. The panel on hunting decisions was chaired by Jane-Anne Manson and included panel members Hugh Braker, Lewis Harvey, Cheryl Tobias, Charles Willms, and Tom Wood. Hugh Braker chaired the panel on the Delgamuukw decision and panelists included Louise Mandell, Arthur Pape, Bryan Williams, Q,C., and, Geoff Plant. []
plications of the FfA. Canadian environmentalists worry about the environmental implications of the NAFfA on two fronts: resource use and environmental standards. The NAFfA continues the FfA requirement of perpetual supply of the American market with all of our resources, including energy, while exempting Mexico from the energy requirement. The NAFTA also includes a very comprehensive plan for the harmonization of Canadian, Mexican, and U.S. standards also come under the harmonization program. Canada (or the U.S. or Mexico) may establish their own higher standards, but only to the extent that such standards do not create "unnecessary obstacles" or "disguised restrictions" on trade. The NAFfA provides for the creation of "scientific" panels to advise in disputes concerning environment related issues. Hearings will be held in secret and panels will be composed of representatives from governments and industry-dominated international bodies, not environmental organizations. Ms. Swenarchuk concluded by noting that NAFfA is an environmentally and economically damaging agreement. It creates barriers to conserving resources, undertaking local and regional development strategies, requiring local content in products, providing subsidies to address local and regional development strategies, requiring local and regional disparities, and setting strong environmental standards. The FfA, the NAFTA, and other such trade agreements constitute an overarching international regime that limits our government's powers. Laws passed according to our democratic processes have been invalidated under this regime.
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You will see a reference to the number of the Bill (First Reading Bill Number) when it was introduced into the House. This number may be different from the chapter number of the new Act which is quoted after the title of the Act and which is the proper citation for the Act. The First Reading Bill Number has been given to you to make it easier for you to note up the Bills you may have in your library.
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Every effort is made to ensure the accuracy of the information provided to you in this article but the information should not be relied upon. Lawyers should refer to the specific legislative or regulatory provision.
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ACTS IN FORCE FROM PREVIOUS SESSION The following acts were passed in the 1992 session and have been brought into force by regulation. Municipal Amendment Act, 1992, S.B.C. 1992, c.18, amends the Municipal Act, R.S.B.C. 1979, c.l8, as to s. 453(1), allowing substituted service of a notice of delinquent taxes on Crown land which is held under lease, licence, permit or location. section 40 of the Act in fotu September 9, 1993
Freedom of Information and Protection of Privacy Act, S.B.C. 1992, c.61, provides access to information held by all government ministries, crown corporations and over 200 provincial boards, commissions and agencies, subject to limited exceptions. The Act imposes an obligation on the public bodies to assist applicants making requests for information. Individual privacy is protected by prohibitions on the unauthorized collection, use and disclosure of personal information held by the public bodies. Individuals have a right of access to and a right to correct personal information. (Please note the amendments to the Act contained in the Freedom of Information and Protection of Privacy Amendment Act, 1993 described below). Act, except section 78(2), in force October4, 1993
ACTS IN FORCE FROM 1993 SPRING SESSION The following acts, passed in the 1993 spring session, are now in force and are reported in order of bill number. Social Service Tax Amendment Act, 1993, S.B.C. 1993, c.69, First Reading Bill Number 7, amends the Social Service Tax Act, R.S.B.C. 1979, c.388,
Ann
McLean
providing for a 7% tax on taxable services, generally those services relating to the repair or alteration of tangible personal property. sections 1(e), (g) and (h), 5, S(b), 9(b), 10(c), 13, 14(b), 16(b) and (d) of the Act in fOra! October 1, 1993
Energy, Mines and Petroleum Resources Statutes Amendment Act, 1993, S.B.C. 1993, c.l2, First Reading Bill Number 28, amends the Petroleum and Natural Gas Act, R.S.B.C. 1979, c.323, repealing definitions which will be made by regulation or are no longer needed, dealing with approvals for geophysical exploration, reducing the basic area for which a permit is issued, removing the waiver of penalty payments for continuation of a lease beyond its ten year term where a well is drilled during the continuation period, removing the 90 day limit for production of petroleum and natural gas from some tenures, removing references to "grid areas" as a result of the adoption of a new Provincial survey and mapping standard and making consequential amendments to the Coal Act and the Geothermal Resources Act sections 1 -3, 7 and 10- 23 of the Act in force October 1, 1993
Multiculturalism Act, S.B.C. 1993, c.57, First Reading Bill Number 39, recognizes the multicultural nature of the province, requires each ministry and Crown corporation to report annually on initiatives it has taken to promote multicultural policies and provides for grants to not for profit organizations. The advisory role of the Multicultural Advisory Council is set out. in force September 9, 1993
Cabinet Appeals Abolition Act, S.B.C. 1993, c.38, First Reading Bill Number 42, amends the (a) Coal Act, R.S.B.C. 1979, c.51, eliminating appeals to the cabinet from decisions of the minister under the Act, (b) Mineral Land Tax Act, R.S.B.C. 1979, c.260, eliminating the appeal to cabinet from a refus-
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Legislative Update(continued) al of the minister to allow an owner of mineral rights to defer mineral land tax, (c) Mineral Tenure Act, S.B.C. 1988, c.S, eliminating the appeal to cabinet of a decision of the minister relating to the use of surface rights under s.13(4) and 15(3) of the Act, (d) Natural Gas Price Act, S.B.C. 1989, c.74, replacing appeals to cabinet from cancellations by the minister of permits, licences and leases under s.6(2) of the Act with appeals to the Supreme Court and Court of Appeal, and (e) Petroleum and Natural Gas Act, R.S.B.C. 1979, c.323, replacing appeals to cabinet of the minister's decisions to cancel permits, licences or leases under s.143 of the Act, with appeals to the Supreme Court and the Court of Appeal. sections 6, 7, 12 -14, 29 and 31 of the Act in fora September 9, 1993
Legal Profession Amendment Act, 1993, S.B.C. 1993, c.31, First Reading Bill Number 53, amends the Legal Profession Act, S.B.C. 1987, c.25, making organizational changes to the Law Society and inter alia (a) expanding the membership of the Law Society to include non-practicing members, authorizing rules dealing with retired and non-practicing members and providing that non-practicing members are not authorized to practice as notaries, (b) permitting the appointment of a person who is not a member to any benchers' committee, (c) allowing rules to be made establishing conditions under which members may practice as mediators, (d) allowing lawyers from other jurisdictions to obtain permission to practice in B.C. for a period of time rather than in respect of a particular rna tter, (e) prohibiting people who are no longer members due to disciplinary proceedings from practicing law, whether or not they are paid for doing so, (f) removing the requirement that a member be a Canadian citizen,
(g) repealing s.32, which prohibited association by members in the practice of law with non-members outside the Province, (h) providing that the procedure under the Rules of Court for the assessment of costs
and review of bills and agreements applies to the review of fee agreements, including contingent fee agreements; (i) clarifying that the Unclaimed Money Act does not apply to money in members' trust accounts; and
making consequential amendments to the Attorney General Statutes Amendment Act, 1989. in fora November 1, 1993
Freedom of Information and Protection of Privacy Amendment Act, 1993, S.B.C. 1993, c.46, First Reading Bill Number 62, amends the Freedom of Information and Protection of Privacy Act, S.B.C. 1992, c.61, inter alia amending some exceptions to the disclosure requirements, clarifying some provisions relating to protection of privacy, and making consequential amendments to the Insurance (Motor Vehicle) Act, and the Medical and Health Care Services Act. sections 1(a), 2, 3, 5 - 20, 22(a)- (c), 23 t~nd 24. that part of section 26 that enacts s.79.1 of the Freedom of Information and Protection of Privacy Act, sections 27, 28(b) except paragraph (c) of the definition of ''head", 28(d) and (e) and thatpartof28(f) that enacts the def!nition of "prosecution", 28(g) except paragraph (c) of the definttion of "public body", 29,31 and 33 in fora October 4, 1993
Public Service Act, S.B.C. 1993, c.66, First Reading Bill Number 66, provides for the repeal of the Public Service Act, S.B.C. 1985, c.l5, establishes the Public Service Employee Relations Commission, sets out provisions relating to deputy ministers and others and makes consequential amendments to several acts. Act, except the definitions "appeal board" and "auxiliary employee" in section 1(1), sections 6(c), 8 -11 t~nd 16 -20 in force September 16, 1993; repealinยง the Public Service Act, except the definition "commission' in section 1(1) and sections 5-11, effective September 16, 1993 (Note: section 4.1 of the Public Service Act repealed and sections 13 and 26 of the Act in force November 5, 1991)
Residential Tenancy Amendment Act, 1993, S.B.C. 1993, c.68, First Reading Bill Number 67, amends the Residential Tenancy Act, S.B.C. 1984, c.15, as to (a) s.29, which permits a landlord to terminate a tenancy to allow for landlord use, requiring the landlord to have all permits and approvals needed to demolish, convert or renovate the premises before giving notice of termination, removing references to a minimum notice period for a change of land use of a manufactured horne pad in accordance with municipal planning requirements, and changing the minimum notice period for ending a tenancy of a manufactured horne pad from 6 months to 12 months, and (b) s.30, clarifying that a tenant's moving ex-
9
Legislative Update(continued) penses must be paid in all cases of demolition or change of use and deleting references to moving expenses for manufactured home pads, which are dealt with in s.29. sections 11 and 12 of the Act in force September 9, 1993
Forest Amendment Act (No.3), 1993, S.B.C. 1993, c.45, First Reading Bill Number 69, amends the Forest Act, R.S.B.C. 1979, c.140, adding Division 3.1 "Forest Licence and Timber Sale Licence Area Restrictions", broadening the provisions in s.SO which allow the minister to cancel an agreement in certain cases, and allowing temporary reductions in the rate of harvesting with the licensee's consent. Act, except section 5, in force September 22, 1993
Pacific Racing Association Act, S.B.C. 1993, c.60, First Reading Bill Number 74, establishes the Pacific Racing Association whose purpose is to ensure that horse racing facilities are maintained, improved and operated in the province. in force August 24, 1993
Engineers and Geoscientists Amendment Act, 1993, S.B.C. 1993, c.43, First Reading Bill Number 77, amends the Engineers and Geoscientists Act, R.S.B.C. 1979, c.109, reorganizing the council of the Association to provide for an increased number of lay members, providing for professional corporations, expanding the supervisory and disciplinary powers of the Association and providing for the issuance of a limited licence to practice. in force September 9, 1993
Public Sector Employers Act, S.B.C. 1993, c.65, First Reading Bill Number 78, establishes the Public Sector Employers' Council and requires that an employers' association be established for each sector other than the public service sector. An employers' association may become the accredited bargaining agent for its members.
Employment Standards Act, B.C. Reg. 37/81, the Employment Standards Act Regulation is amended to provide that Part 5 of the Act, dealing with termination of employment, does not apply to employees covered by a collective agreement. B.C. Reg. 276/93 effective August 19, 1993
Residential Tenancy Act, B.C. Reg. 26/81, the Residential Tenancy Act Regulation is amended to provide that the maximum amount of moving expenses payable by the landlord pursuant to s.29(8) of the Act is $10,000. B.C. Reg. 313/93 effective September 9, 1993
Manufactured Home Act, B.C. Reg. 51/78, the Manufactured Home Regulation is amended by repealing s.25.1, which required that the registrar issue a certificate containing information in respect of a registered security instrument. As of October 1, 1993, all security instruments relating to manufactured homes should be registered at the Personal Property Registry. B.C. Reg. 309/93 effective October 1, 1993
Freedom of Information and Protection of Privacy Act, B.C. Reg. 324/93 is made, making changes to Schedule 2 to the Act, which sets out the public bodies to whom the Act applies, and B.C. Reg. 323/93, the Freedom of Information and Protection of Privacy Regulation is made, providing for oral requests for information in certain cases, prescribing who can act for others in respect of information, setting out definitions for anthropological and heritage value, dealing with disclosure of health care information in certain cases, prescribing the form of consent to be given by an individual to disclosure of personal information and prescribing maximum fees for services. effective October4, 1993
REPORT AVAILABLE
sections 1 -15 of the Act in force September 16, 1993
REGULATIONS TO NOTE Court Rules Act, B.C. Reg. 221/90, the Supreme Court Rules are amended as to Rule 37(2), to provide that a party may deliver to another party an offer to settle any claim in a proceeding, not limited to a claim made by the party delivering the offer. B.C. Reg. 275/93 effective August 19, 1993
The Legislation and Law Reform Committee has received a copy of the following report from the B.C. government. Information may be obtained from the noted source or from Ann McLean, B.C. Branch Legislation and Law Reform Officer, in Victoria (370-2234). Report
Source
The Response of the Ministry of Attorney General to the Recommendations in the Law Society Report on Gender Bias
Ministry of Attorney General (356-0727 or 660-2400)
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Access to vehicle records The Motor Vehicle Branch provides access to vehicle records to allow for searches by the public. The enactment of the
Freedom of Information and Pro-tection of Privacy Act effective Oct. 4, 1993, may change this policy. The government's concern is to protect personal privacy in accordance with the Act. Steven Rumsey, the Assistant Deputy Minister of the Motor Vehicle Branch has advised that the
Branch will be consulting with interested parties to develop a new policy regarding access to vehicle records which will comply with the Act. The Canadian Bar Association (B.C. Branch) has been invited to participate through its Freedom of Information and Protection of Privacy Committee chaired by Susan Fraser of Edwards, Kenny and Bray. The new policy is anticipated to be in place by the beginning of 1994. IJ
SectionTalk (contlnued from page 5) Non-resident vendor tax collection under Section 116 of the Income Tax Act Ed Kroft gave an overview of the non-resident vendor tax collection under section 115 of the Income Tax Act in a recent meeting of the Vancouver Real Property Section. He concentrated on those aspects of sec..: tion 116 which concern sales of real estate and shares of Canadian private companies. The tax applies any time a nonresident is a vendor, even if the purchaser is also a non-resident. When selling shares, no tax trust relief is available. The shares still attract Canadian tax where more than 50% of the assets in the company are real 路 property. There are a number of tax treaties which provide exemptions from the tax. If your client wishes to rely on an exemption the specific tax treaty relied on must be specified in the application form. It takes four to six weeks to obtain a section 116 certificate and another 30 days if the exemption arises from a tax treaty. If rent was paid during ownership of the property,
Revenue Canada requires even more time to verify that tax was paid on the rent. If the vendor fails to obtain a section 116 certificate the purchaser will be liable for tax owing. If the assets sold are land the purchaser will be liable for up to one-third of the purchase price to the extent of the amount owed.
It is difficult to determine whether the one-third or the one-half rule applies. There is no way to be certain whether a vendor is selling capital property or fully taxable property. Because a statutory declaration does not provide protection to the purchaser, it is common to holdback 50% of the purchase price. Promises from the vendor will not save the purchaser. A statutory declaration that the vendor is not a non-resident is sufficient protection. However, a statutory declaration saying that the property of the non-resident is capital property and not inventory is insufficient. Section 116 is also applicable.
The vendor still needs to file an income tax return even if a section 116 certificate is obtained. Often a greater amount was remitted than actually owing for
Catherine Greenall (centre), chair of the General Practitioners (Lower Milinland) Section, volunteers for the "hot seat interview" during the recent media training session held for Branch Section chairs. Leading the Seminar were Della Smith (right) of PJS Communications and Bob Spence (seated) of Media Wise. The Seminar focused on "what makes news," interview tips, and interview question types and techniques to forward your message.
Revenue Canada is becoming aggressive in auditing the status of residents. The vendor must be a resident of Canada at the time of the disposition in order to avoid non-resident vendor tax. For example, if a vendor is transferred, lists his or her property for sale and is a non-resident when the contract of purchase and sale is executed, there is a need for section 116 compliance. Because of the delays in obtaining a section 116 certificate, it is often impossible to have the certificate prior to closing. Normally, the purchaser will holdback until the certificate is obtained. During the time the money is accruing interest and normally that interest is for the benefit of the vendor. If the vendor is a non-resident, withholding tax will apply to the interest. To deal with this problem it is common to place the money in government securities which are exempt from withholding tax.IJ
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Public affairs and notaries focus of AGM resolutions Two resolutions were presented to the members at the Sept. 10, 1993 Annual Meeting. Members supported the resolution calling for the B.C. Branch to become pro-active with respect to greater communication between lawyers and the general public and to make this a first priority. A second resolution directs the B.C. Branch Notaries Committee to pursue and present to CBA members an aggressive plan to address the public interest and the interests of the members regarding Notaries Public.C
CORE, ICBC present路 ations to Council highlight first meeting Provincial Council, comprised of both elected members, Section Chairs and ex-officio members, met on Sept. 11 to begin the 1993 I 94 program year. Led by B.C. Branch President Parker MacCarthy, the full day agenda included an address by National CBA President Cecilia Johnstone, Q.C., and Alberta Branch President Jack Dunphy. Secretary-Treasurer John Waddell reported on the B.C. Branch budget and noted that the Executive is considering the impact of the WCB amendments, increased Section and Committee activity, and amortization of office renovations and the effect these will have on the 1993/94 budget. Guest Speaker Steve Owen provided a comprehensive review of the mandate and activities of the Commission on Resources and Environment (CORE). During his remarks, he noted that the courts may be inappropriate venues to decide large, multi-party disputes. He suggested that dispute resolution
to reach consensus may be a better approach than adjudication. Bencher's Report Warren Wilson reported that the Law Society completed a governance retreat and will be considering the recommendations of the retreat. He noted that a special referendum will be sent to members regarding changes to the Legal Profession Act that wouldallowtheLaw Society to make some regulation changes rather than the current process of having the government revise the legislation. He also reported on the new non-practicing fee category including anticipated requirements dependent upon the number of years that a member has been on leave from the profession. The new category will be effectiveonJan.1, 1994.
vision had been supported but that the CBA had opposed abolition of court order interest but this was brought in to effect anyway. As well, early disclosure was changed to a maximum of 60 days. Yule reported that ICBC had drawn down all its reserves and has mandate to get ICBC premiums into line with cost of living increases only. Yule noted
Russell W. Lusk, Q.C., (right) was honoured with the third annual President's Medal from 1992/93 B. C. Branch President Rob Gourlay. Russell Lusk was B.C. Branch President in 1989/90 and is currently one of three B.C. Branch representative on the National CBA Executive. Most recentlY., Lusk chaired the National CBA Task Force on Conflict oflnterest Disqualification: Martin v. Gray and Screening Methods. The President's Medlll is awarded annually to a B.C. Branch member who has made an outstanding contribution to the profession.
Wilson also referred members to the new Rule 835 on payment of fees and related taxes and specifically referred to 835(3) where a member "must not take fees and related taxes from trust funds where the member knows or ought to know that the client disputes the right of the member to receive payment from trust funds." Council raised a number of questions about this new rule and urged the Law Society to review the effect of the rule in practice. Fair Auto Compensation
Don Yule, chair of the B.C. Branch Fair Auto Compensation Committee, reviewed the Branch's responses to ICBC's several initiatives to reduce its deficit. He noted that collateral benefits re-
that an ICBC report concludes that since 1986 there has been an increase in the number of bodily injury claims per accident; there are more non-permanent soft-tissue injuries; and inter-spousal law suits have increased overall costs. ICBC also reports that lawyer's advertising may have had an effect on claims. Yule reported that ICBC has begun a "road sense" program to help reduce the number and severity of accidents and may be considering a "graduated" licensing program. ICBC is reducing claims handling and administrative costs and is stepping up its Please turn to page 13
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November 25, 1993 Law Courts Inn, Vancouver Mark your calendar to attend. The B.C. Branch second annual Georges A. Goyer, O.C., Memorial Award tor Distinguished Service will be presented.
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November 25 Bench and Bar Dinner Law Courts Inn December 4 Provincial Council Meeting Vancouver February 18 to 21, 1994 National CBA Mid-Winter Meeting, Jasper Alberta
Schick treatment for chemical dependency When first learning to drive, a great deal of concentration is required. Actions and reactions are slow. With practice these responses are speeded up. the subconscious mind is now learning a new "habit." With alcohol and drug habits (addictions), matters are complicated by the fact that some people inherit an innate susceptibility to alcohol or other drugs which is akin to an allergy to food or an idiosyncrasy to a drug. Whatever the reason for the addiction, its compulsive urge emanates from the subconscious memory. The Schick inpatient program works to change the subconscious memory programing that causes a patient to crave alcohol or other drugs. It is a physiological fact that the memory remains programmed until some-
thing changes it. that change takes place for the patient with counterconditioning. Schick has been using this same basic method since it was developed by Charles Shadel in 1935. Many people cannot understand how a treatment of only ten days, plus two more visits of two days each, can possibly be effective against well ingrained addictions. With counterconditioning it is not a matter of time. The change occurs rapidly and predictably. After the first session the patient doesn't like the habit as much. In the middle of the treatment, the desire toward the drug(s) of choice is about neutral. After completion of treatment both the conscious mind and the subconscious memory have joined in a distaste for the habit. The entire panoply of psycho-
logical issues that accompany addictive behaviour are recognized and treated. The counselBing services department of the hospital is staffed by registered professional chemical dependency counsellors. It is their job to orient patients toward permanent sobriety. A two-year _ aftercare followup is a standard part of the program. When the patient leaves the hospital, craving is left behind. this is perhaps the most important tool the patient will possess to maintain permanent and comfortable sobriety. For decades now, lawyers from British Columbia have been successfully treated at Seattle's Schick Shadel Hospital. If you wish more information on this highly successful treatment program, please call an Admissions Counsellor at 1-800-272-8464. IJ
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Legal info on sexual harassment, leaves and common-law relationships now available on Dial-A-Law service Six new tapes have been added to the Dial-A-Law system. As well, Cheryl Stephens, the DialA-Law script editor, has reviewed many of the existing scripts for plain language and has separated many of the existing tapes to enable callers to focus on specific legal information. New tapes recently added include:
Gender fairness in the workplace The B.C. Branch Gender Equality Implementation Committee has purchased the video "Get-
ting to the Fine Points: Gender Fairness in the Workplace." The video, produced by the Minnesota State Bar in 1992, includes a guide to assist discussion about gender stereotypes, mentors, exclusionary behavior, and balancing work and family. The video's focus is lawyers and law firm management policies. Call Fiona Watson at the B.C. Branch office (687-3404) if you would like to borrow the video to review it and screen it at your firm. [I
Registry closes The Richmond Supreme Court (Family) Filing Registry closed effective October 1, 1993. All inquiries on files that were handled by the Richmond Supreme Court Registry, copies of orders, etc., should be directed to the Law Courts, 800 Smithe St, Vancouver. [I
Correction: The June issue of &rTillk should have read Vol. 5, No. 5 and the July/ August &rTalk issue should have read Vol. 5, No. 6.
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Employment Discrimination: Sexual Harassment Tape 271 Maternity and Parental Leaves Tape 286 Being a Witness Tape 210 Common Law Relationships: Your Income and Property Rights Tape 361 Common Law Relation-
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ships: What Happens When You Separate? Tape 362 Common Law Relationships: What Happens When Your Partner Dies? Tape 363
Tapes can be accessed from touch tone phones 24 hours a day. Call 687-4680 or toll-free 1-800-565LAWS.IJ
Provincial Council highlights anti-fraud, anti-theft programs. He noted that ICBC is looking at its "product" which likely will include some type of "threshold no-fault." Yule explained that this model would require that a claim has to be sufficiently serious to sue in tort and that claims below a certain dollar-value would have no right to litigate. He noted that in some jurisdictions the threshold is a medical claim or a simple dollar-value claim. Yule believes ICBC wants the current tort system to work but if it cannot, then alternate models may be implemented. Yule invites the Bar to comment on possible changes to the tort system or to express its opinion that any type of "no-fault" system would not be acceptable. Winter Convention in Jasper All members are invited to attend the National CBA Mid Winter in Jasper from Feb. 18 to 21, 1994. Communications Committee Kerry-Lynne Findlay will chair the 1993/94 Communications Committee and reported that the resolution passed at the Annual Meeting will be referred to the Committee who will look at ways to facilitate communication between members and the public.
(continued from page 9)
New Section approved Council approved forming the Criminal Justice (Nanaimo) Section that brings the total number of B.C. Sections to 55. Local and County Bar Liaison Executive Committee member Michael Brecknell will be cochairing this committee with Therese Alexander. He encourages all members to talk to either elected Council members or Local and County Bar presidents on issues of concern. Vancouver Bar Association President Brad Chapman reminded Council that the Vancouver Bar Association manages the articling interview and .selection process that is managed on a computer-based ranking system but that some law firms continue to interview and recruit at various times throughout the year. He reported that the VBA has committed $15,000 over three years to the new Women and the Law Chair at UBC. He added that the VBAsupported Law Day, the B.C. Courthouse Library anniversary, the B.C. Branch PST challenge and provides bursaries to both UVIC and UBC. IJ
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Five informative seminars on spending, savings and investing FINSCO Mutual Funds, through the CBA Retirement and Savings Program, is inviting CBA members and related parties to attend a series of financial well-being seminars. Led by experts, these informative two-hour evening seminars allow CBA members to learn and ask questions about all aspects of their financial matters. Seminar topics include: Jarislowsky, Fraser on fue Markets: November 16 Explores the investment outlook, government debt levels, impact of NAFfA, the kinds of investments apt to do well in Canada, and economic recovery.
WCB Act Amendments (continued from page 1)
of the staff from full insurance coverage, partners will reduce their group number but the premiums likely will reflect this decreased spreading of the risk. Those employers who are covered under WCB will be also subject to Occupational Health and Safety standards and offices may now be inspected and orders given as to office health and safety standards. For law offices, this will likely centre around lighting and ergonomics. If there are complaints regarding health or safety, an inspection will take place. The CBA is actively dealing with these amendments and is planning to make submissions to request a new rate category for law firms that will more properly reflect the low risk which in tum would result in much lower assesment rates charged to law firms. EJ
Articling committee seeks law firm comments The UBC Articling Committee is looking for means to improve
Hill Samuel on Global Investing: November 22 Learn why foreign investments are advantageous, explore opportunities, and find out how to build in global investments as part of RRSPs.
Personal Tax Planning: November30 Focus on reducing your tax bill, using all available deductions and credits, making capital gains and losses work to your advantage, and reducing taxes when close to retirement. Personal Retirement Planning: November 24 Especially for those 35-55 who want to ensure they have suffi-
their relationship with firms outside the Lower Mainland. With the stress and cost of living in the Lower Mainland, many students want to move out of Vancouver andintosmallercommunities. As a result, more law firm participation is required for articling students and summer students. Christy Phillips, B.C. Representative on the Committee, or Bob Reid, Assistant Dean, would appreciate your suggestions or comments on how to enhance the Committee's work with firm outside the Lower Mainland. A questionnaire will be sent out to law firms and follow-up telephone calls will be made to determine firms with articling positions this year. If you are looking for an articling student, or have any comments you'd like to make, you can contact Assistant Dean Reid at 822-3435 or Christy Phillips at 822-5257. EJ
VSE governor retires Norman Severide, Q.C., has stepped down from the Board of Governors of the Vancouver Stock Exchange, effective August 19. Mr. Severide was originally elected to the board in
cient retirement income to maintain a comfortable lifestyle. Find out more about RRSP strategies, income splitting, RRIFs vs. Annuities, and changing pension regulations. Personal Financial Planning: December 7 Focuses on spreading investment dollars among different kinds of investments, borrowing, calculating net worth, and estate planning. The enclosed flyer in this BarTalk issue provides information on advance registration information or call FINSCO at 1-800563-6623. EJ
May 1990 and was recently recognized by the VSE for his work on behalf of the Vancouver Stock Exchange. C BarTillkis published by the British Columbia Branch of the Canadian Bar Association, 10th Floor- 845 Cambie Street Vancouver, B.C. V6B 51'3 Tel: (604) 687-3404 FAX: 669-9601
Editor: LArry Hnetka, Communications Director 687-3404 Legislation and Law Reform Officer: Ann McLean (Victoria) 598-2860 SectionTtllk Editor: Shelley Bentley, Melville & Yeung 685-3881 Alistair Eagle Photography (688-8867) is the CBA (B.C.
Branch) official photographer. @Copyright the British Columbia Branch of the Canadian Bar Assodation-1993.
The B.C. Branch of the Gmadian Bar Association represents troer 7,500 lawyers within British Columbia. The B.C. Branch is dedicated to improue and promote access to justice, to review legislation, initiate law reform meRSun:s and advance and improue the administration of justice. On behlllf of the profession, the B.C. Branch works to improue and promote knowledge, skills, ethical standards and well-being ofmembers of the leglll profession and promotes the interests of its members. ll