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

CIVIL LIBERTIES | An Equal and Diverse Profession | eLAWYERING

OCTOBER 2011 | www.cba.org/bc

Civility and Diversity are like Peanut Butter and Jam Page 12

NEWS BarTalk Editor

Deborah Carfrae

Editorial Board Chair

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 bartalk Senior Editor

Joanne R. Silver Staff Contributors

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

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at www.cba.org/bc. © Copyright the British Columbia Branch of the Canadian Bar Association 2011. This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel. The British Columbia Branch of the Canadian Bar Association represents more than 6,700 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.

BarTalk Publication Sales Agreement #40741008

KUDOs

2011 Edward K. RowanLegg Award

Preston Parsons, an articling student with Bull, Housser & Tupper LLP in Vancouver, is the winner of the Canadian Bar Association’s (CBA) 2011 Edward K. RowanLegg Award for his contributions to the CBA as a student member.

2011 CBA Cecilia I. Johnstone Award Kerry-Lynne Findlay, QC, of Vancouver is the winner of the 2011 CBA Cecilia I. Johnstone Award in recognition of her outstanding work for the advancement of women in the legal profession.

Canadian Bar Association’s (CBA) 2011 Louis St-Laurent Award of Excellence Melina Buckley, LL.B., Ph.D., an associate with Camp Fiorante Matthews in Vancouver, is the 2011 recipient of the Canadian Bar Association’s (CBA) Louis St-Laurent Award of Excellence for distinguished service to the Association.

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.

J. Edward Maybee Memorial Prize and Marie F. Morency Memorial Prize Oyen Wiggs Green & Mutala LLP is proud to announce that Jeffrey W. Robinson has been awarded both prizes for the Canadian Patent Agents’ examinations, namely the J. Edward Maybee Memorial Prize for highest overall standing, and the Marie F. Morency Memorial Prize for the highest mark on the patent drafting examination. Jeff received the awards at the annual meeting of the Intellectual Property Institute of Canada in September 2011. He is the firm’s fifth lawyer to receive the Maybee Prize. LETTER TO THE EDITOR

Tony Wilson – That Riot?

Tony Wilson’s column is always the first thing I read in BarTalk. I love his humour and gems of wisdom. Today it was his line “The soundtrack will include track seven from side two of The White Album” when referring to the couple kissing in the middle of the Stanley Cup riot. What is that, I wondered? Thinking it must be a Manson-like reference to an obscure passage from a Beatles urging us to mass civil unrest, I made a quick search of that line on Google. That told me the seventh track was the Beatles song “Why Don’t We Do It in the Road.” Now THAT is brilliant. I laughed so loudly that building management has threatened to throw me out and my paralegal threatened to divorce me (my wife also being my paralegal). Don’t stop publishing Tony’s columns. They are terrific. — Michael F. Provenzano

2 BarTalk / OCTOBER 2011

OCTOBER 2011

volume 23 / number 5

Contents

Departments

4 From the President An Equal and Diverse Profession by Sharon Matthews 5 Executive Director How Diverse Are We Really? by Caroline Nevin 6 Practice Talk eLawyering by David J. Bilinsky 7 dave’s tech tips 8

Nothing Official The Only Good News this Fall by Tony Wilson

Sections

Inside This Issue Equality and diversity are the lifeblood of a multicultural democracy and engage every area of law. We discuss how women and minority lawyers are faring, interview a founder of West Coast LEAF, pass on a 50th anniversary message from the BCCLA and report on the South African Charter of Religious Rights and Freedoms.

News and Events

14 Expanding Constitutional “Dialogue” by Iain T. Benson

2 2011 Edward K. Rowan-Legg Award 2011 CBA Cecilia I. Johnstone Award Canadian Bar Association’s (CBA) 2011 Louis St-Laurent Award of Excellence J. Edward Maybee Memorial Prize and Marie F. Morency Memorial Prize Tony Wilson – That Riot? 17 Bench & Bar Dinner Form 18 CBA/ABA Protocol Incapacity Planning Tools Diversity Resources 2011 Resolutions Adopted by Council 19 2011 Award Winners Court of Appeal Changes Acting For Lawyers RARE Finds Project 20 Diversity in the Profession – What Have We Achieved? CLEBC Update 21 Legislative Update Branch & Bar Calendar Battle of the Bar Bands Photos 22 Film Celebrates First Black, Canadian-Born Jurist What Will Dubai 2011 Offer? Why Legal Aid Matters Legal Aid Resources

15 Work Life Balance Forum by Megan Hamilton

23 LAW FOUNDATION OF BRITISH COLUMBIA

10 Section Update Criminal Justice – Victoria Alternate Dispute Resolution (ADR) – Nanaimo and Family Law – Nanaimo Joint Meeting Wills and Trusts – Victoria Senior Lawyers 11 SECTION NEWS Thank YOU for Using The CBABC Online Section Enrolment!

Features 9

2011-2012 Executive Committee

12 Civility and Diversity are like Peanut Butter and Jam by Jennifer Chow 13 A Celebration of Civil Liberties by Robert Holmes

16 Questionnaire by Christine Murray

Also In This Issue

24 PROFESSIONAL DEVELOPMENT & Member Services 25 DISPLAY ADS 26 Bar Moves 27 New Members OCTOBER 2011 / BarTalk 3

From The President Sharon Matthews

An Equal and Diverse Profession Let’s use all of our talent to fulfill our potential.

he rule of law is in peril if it does not exist equally for all who seek its protection. Recently, I have been inspired anew by women who have made outstanding contributions to equality and diversity. Dr. Melina Buckley and Patricia Blocksom, QC, worked on the CBA Task Force on Gender Equality in the Profession, which published the 1993 report, Touchstones for Change – Equality, Diversity and Accountability. Dr. Buckley is a CBABC member and she is the 2011 recipient of the Louis St. Laurent Award. The 2011 winner of the Touchstones Award is Pat Blocksom, QC of Calgary. At the CBA CLC in Halifax, they both spoke eloquently about the challenges and rewards of the opportunity to facilitate change and to drive equality norms to the forefront of the profession’s collective consciousness. Jennifer Conkie, QC, was the 2011 CBABC Equality and Diversity Award winner. At Provincial Council, she spoke of her career-long journey on equality issues like a parent speaks of raising a child. So let us congratulate these fine contributors and get back to our practices where equality and diversity thrive, right? Not so fast. There have been gains and they are important. Attitudes have improved since I was called in 1993, the same year the Touchstones Report was released. There is more diversity in the profession. The Women Lawyers Forum is making differences in the lives of women lawyers. Kerry-Lynne Findlay, QC, MP was a driving force behind both the national and B.C. WLFs and she was honoured in Halifax for these achievements. We must protect these gains. In accepting the Touchstones Award, Pat Blocksom quoted the late Honourable Bertha Wilson as follows: 4 BarTalk / OCTOBER 2011

A societal attitude toward issues such as gender bias is akin to racism or anti-semitism: it seeps like a noxious pollutant into the fibres of society in ever new and subtle forms.... In this as in other matters, the price of freedom is eternal vigilance. If this seems like histrionics today, here is a 2011 example. During a conversation between lawyers, the following comment was made about the enrolment rate of women in law school, which is now more than 50 per cent: “what a waste.” The explanation was that by “waste,” the speaker was averring to the phenomenon that so many women leave the profession early – the education was wasted. The sad truth is such views still exist. In 2009, the Law Society released two reports, Report of the Retention of Women in the Law Task Force and The Business Case for Retaining and Advancing Women in Private Practice. The

Task Force reported that despite women entering the profession in equal or greater numbers compared to men, only 34 per cent of practicing lawyers and only 29 per cent of lawyers in full-time private practice are women. Despite the gains, true equality and diversity eludes us. The problems of retention of women, lack of ethnic diversity and lack of sexual orientation diversity do not belong to these groups; they are problems of the profession as a whole. Imagine a profession as diverse as Canadian society. How much better we will be able to serve clients if we collectively and individually have the background and experiences to understand all the nuances of their legal issues. We will be better viewed by society as a whole if we are like society as a whole. On this quest, we should be proud of what has been done and we must be brave enough to tackle the complex layers of attitude that are still in the way.

Sharon Matthews

president@bccba.org

executive director caroline nevin

How Diverse Are We Really? Holding a mirror up to ourselves.

t the CBA, there is no question that diversity is valued. Homogeneity is great for easy consensus (who doesn’t like a room full of people who affirm our own beliefs?!) but as a member service organization we exist to ensure that the views and needs of all our members are reflected in what we do on your behalf. When you walk into the CBABC office, the second thing you will notice – after the cheerfulness of the welcome you receive! – is the significant cultural and ethnic diversity of your Branch staff. We have 21 employees who serve 6,700 B.C. members. More than half of our staff, including me, came to Canada from other countries or were the first generation of our families to be born here. We bring a personal understanding of the cultural richness of places like Peru, Uganda, Trinidad & Tobago, Ireland, Hong Kong, Mainland China, Belarus and Pakistan. We also have multigenerational Canadian and Métis citizens, and a wide mix of experience living and working in small towns and big cities. The diversity of experience, outlook, age and cultural background of our staff is invaluable; in everything we do, we are united in our commitment to support the good work that lawyers do in the world but we approach it from as many different perspectives as we can in order to come up with the best solutions and services. In the CBA’s Touchstone Report, Racial Equality in the Legal Profession Report and other CBA work related to equality and diversity issues, there is a theme that runs throughout: in order to promote and support diversity within the legal profession, it is important that our institutions lead the way in terms of what that “looks like.” The CBA is one such institution, and we have been working

within the profession and within our own organization to find ways to be reflective and inclusive of the people we serve. Our CBABC Equality Committee has consistently led the way in focussing on how we can continue to do better in this regard,

The challenge to all of us lies in adopting a ruthless intolerance of lack of diversity and equality. and our Executive Committees at both the Branch and National level consider equity and diversity issues in all that they do, particularly in terms of appointments and encouraging bright leaders in the profession to step forward into CBA leadership roles. The Law Society of British Columbia has done some excellent

work on equity issues as well, creating reports and resources available to all lawyers and law firms on issues related to supporting women, people with disabilities, aboriginal peoples and working parents in legal practice. Of particular value are the model policies available on their website (under Publications/Practice Resources). The tough news for the legal profession is that there remains a significant portion of the Bar that experiences discrimination and barriers that their fellow students and practitioners do not face. In the words of Charlie Smith, former Equity Advisor to the CBA, “... it is interesting and somewhat paradoxical that the very profession which has been the source of such insight and eloquence on equality requires a healthy dose of selfexamination and positive action to address inequality and outright discrimination within its own ranks.” The challenge to all of us lies in adopting a ruthless intolerance of lack of diversity and equality, and a relentless commitment to reflecting those values in our workplaces and profession.

Caroline Nevin

cnevin@bccba.org OCTOBER 2011 / BarTalk 5

practicetalk david J. bilinsky

eLawyering Diverse ways of rendering legal services. Said we’re Diverse City, we’re colourful goods It’s just a state of mind, we gonna shine the way that we should, baby... r – Music, Lyrics and recorded by: The Diverse City Band. r

oday innovative lawyers are finding new clients and new ways of rendering legal services by using the vast array of services offered by the Internet. This isn’t just about blogging, using social media or using Skype, although those do factor into the equation. In the words of the eLawyering task force of the American Bar Association: eLawyering encompasses all the ways in which lawyers can do their work using the Web and associated technologies. Think of lawyering as a “verb” – interview,

investigate, counsel, draft, advocate, analyze, negotiate, manage,... – and there are corresponding Internetbased tools and technologies. This ability to render legal services virtually opens up vast ways to reach out and serve clients as compared to a traditional “bricks and mortar” practice. Think of online forms, unbundled legal services, private discussion forums, deal rooms, document depositories, cloud (public, private and hybrid) services and more. Unlike a traditional office that keeps traditional business hours, a virtual lawyer could work from home asynchronously, at all hours of the day, rendering legal services to fit their schedule, at lower cost and in a way that meets their client’s needs. The 24/7 nature of the Internet offers the ability for lawyers who may not desire the traditional model of practice the ability to stay active in their profession as well as achieve a work-life balance 6 BarTalk / OCTOBER 2011

that fits their lives. Already, lawyers with young families have found that a virtual practice allows them to continue in their profession but without the rigid work-time constraints of traditional practice. Other lawyers have found that they can build practices that render

What is clear is that the Internet is changing the profession. discrete tidbits of legal information to their clients in an unbundled format by using the Internet. Still other lawyers have found that they can reach out to distant markets and make contact with clients in new ways and at a much lower cost than otherwise by using the collaborative power of the Internet. Lawyers who are building an immigration or international business practice have been able to capitalize on Internet

technologies in this way. Other lawyers have built the ability to meet with clients using Web conferencing tools such as Skype and GoToMeeting.com. Cloud-based services offered by web-based companies are changing how lawyers perform their back-office services while still remaining traditional bricks and mortar firms. A few brave firms are using the off shoring potential of the Internet to contract work out to lower-cost lawyers in jurisdictions such as India to lower the overall legal spend of their clients and to remain cost competitive. Still other lawyers are setting up websites that seek to go beyond the law firm and seek to be Internet-based companies that provide near-legal services such as legalzoom.com and rocketlawyer.com. What is clear is that the Internet is changing the profession and allowing for greater diversity in how lawyers and clients meet, converse, interact, exchange, collaborate and more. It is allowing them to shine the way they should. The views expressed herein are strictly those of the author and may not be shared by the Law Society of British Columbia.

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

dave’s techtips What sites and tools are available to practice via the web? What implications do they raise from a security, privacy and ethics standpoint? SharePoint: SharePoint Foundation 2010 from Microsoft provides a web-based collaboration platform from which you can quickly access documents and information. You can customize a law firm internal website, create new websites, and share resources to meet your client’s needs such as setting up secure web portals to collaborate and share documents with clients. SharePoint creates a “private cloud” offering – meaning that all services and data are hosted on your own servers – a major advantage for Canadian lawyers. http://sharepoint.microsoft.com

PBWorks: Similar to Sharepoint, PB Works allows you to create secure collaborative web-based workspaces to exchange documents, calendars, collaborate on documents and more. PBWorks differs from SharePoint in that it is a publiccloud based service – meaning that your data resides on thirdparty servers. www.pbworks.com

Skype: Almost everyone has heard about Skype even if they haven’t tried it. This Internet-based phone service allows you to call virtually anywhere in the world at prices ranging from free to pennies per minute. Now you can get video calling with Skype and conduct 1-1 or group interviews via the web – in some cases for free (Skype to Skype calls). Security and privacy issues of using Skype for client communications are presently unknown. www.skype.com

netdocuments: Netdocuments is a cloud-based document management solution. Because it is web-based, all your files are available to you (and if you wish, to your clients) wherever you can access an Internet connection. However, being web-based and located in the USA, netdocuments also raises security and privacy issues for Canadian lawyers. www.netdocuments.com

Clio, RocketMatter and Credenza Software: All three products are cloudbased legal practice management solutions. While Clio and RocketMatter are totally hosted “in the cloud” solutions, Credenza is a bit different. The differences are: First, Credenza Pro version stores all data both on the “cloud” and on your local computer – you always have a local copy of your data. Secondly, Credenza works as

an Outlook plug-in, so you are not working in a separate application (or browser) but rather with software you already know. Third, Credenza comes in a free version (that is very good!) that is not cloudbased – all data is only stored on your computer. If you have never tried practice management software, Credenza (free version) is worth a try – and you can always upgrade to Pro (or Amicus Attorney) if you need more horsepower. (www.goclio. com, www.rocketmatter.com, www.credenzasoft.com)

ContractTailor: This is a brand-new web service from B.C. that is aimed at members of the public as well as law firms and corporate legal departments. It is a fresh look at the process of document automation and differs from HotDocs or other approaches to pulling together legal documents. While it is web-based, the servers are located in B.C., avoiding any US Patriot Act complications. In essence, ContractTailor allows you to upload your precedents, annotate them by combining knowledge management (i.e. “Why would you use this clause and when?”) with the ability to search and insert clauses easily and quickly. Furthermore, you can share the draft contract with your client, while restricting their ability to change it. www.contracttailor.com © 2011 David J. Bilinsky

OCTOBER 2011 / BarTalk 7

nothingofficial TONY WILSON

The Only Good News this Fall The 2011 Boughton/BCLI GREATdebate.

t was the accountant who summed it all up while we glanced at the tiny TV screen in the elevator in Bentall 3: “there is no good news these days” he said, disparagingly. In July and August, there really wasn’t any, was there? In Europe, the Greeks were outraged at the austerity measures imposed by their government to remedy a generation of institutionalized tax evasion and profligacy (they have to pay tax now and can’t retire at 55 anymore). France is in trouble because its sovereign debt is high and its banks are exposed to the PIIGS’s debt as well, (PIIGS meaning Portugal, Italy, Ireland, Greece and Spain). Money has been moving out of Europe in anticipation of more defaulting PIIGS. The German economy is stalling, and the Euro’s days may be numbered. Parts of London, Birmingham and other English cities were ablaze in August, with rampant looting and lawlessness that the UK Prime Minister suggested were caused by attending the wrong sort of schools. The Egyptian revolution is still not over, and revolt and civil war have spread to Syria and Libya. Muammar Gaddafi is gone after a blood filled rebellion, but at the time of writing, Syrian President Assad is still shooting his own people in what appears to be an effort to avoid swinging from the end of a noose when the rebels win. In the Ungovernable States of America, the Tea Party held their country to ransom during the debt-ceiling debacle because they don’t believe in taxing billionaires like Warren Buffet (who in fact, does want his taxes to rise). The crisis led to Standard and Poor downgrading the U.S.’s credit rating and the price of gold has gone through the roof. Most of the candidates who want to replace Barak Obama as President are stark raving mad, and blame Obama for

8 BarTalk / OCTOBER 2011

the wars started (and debts incurred) by George W. Bush. Loving God and guns but hating Darwin, science and the Renaissance, the front-runners seem to want to turn the U.S. into a tax-free theocracy. Michelle Bachman, for one, has said AfricanAmerican families were more stable when slavery was legal, she doesn’t believe in evolution, and she thinks that being gay is like being a slave (and is curable!). And despite arguments by some of the best tax experts (and Globe and Mail columnists) in Canada, the B.C. electorate, which seems to want good medical care and well paid teachers, defeated the HST – a tax that might have actually helped pay for good medical care and higher paid teachers. Now we owe the feds $1.6 billion and the teachers are threatening to strike for the money that would have been easy to find if the HST had passed. I can think of only one thing that will put a smile on the faces of

B.C. lawyers in this autumn of our discontent: The 2011 Boughton/ BCLI GREATdebate, which happens Wednesday, October 26, 2011 at the Pan Pacific in Vancouver. Your humble correspondent has been involved in the GREATdebate since it started in 2008. The brainchild of BCLI Director Jim Emmerton, it was thought of as a way to bring back the tradition of light-hearted debate while dealing with topics related to law reform. In years past, we’ve debated the relevance of copyright law in the age of the Internet, the end of lawyers, and testamentary gifts to animals. The format has evolved over the years to a point where those who were the judges of past debates (The Honourable Wally Oppal, QC and The Honourable Chief Justice Robert Bauman) are now among the debaters, this change being implemented only because Mr. Oppal and Mr. Bauman historically voted for any position but mine. This year, we debate the law of Champerty and Maintenance. Wally and I are busy trying to figure out what the dickens it is so we can entertain the audience with our wit and wisdom, and perhaps overrule the team comprised of Chief Justice Bauman and Emily Clough. Be there. It’ll be better than watching the news. The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the CBABC or its members.

feature 2011/2012 EXECUTIVE COMMITTEE Sharon Matthews PRESIDENT

Kerry Simmons Vice President

Camp Fiorante Matthews Vancouver

Cook Roberts LLP Victoria

Stephen McPhee PAST PRESIDENT

Dean Crawford Secretary-Treasurer

Ramsay, Lampman, Rhodes Nanaimo

Heenan Blaikie LLP Vancouver

Clinton Sadlemyer Officer

Alex Shorten Officer

King Sutton Sadlemyer Nanaimo

Bull, Housser & Tupper LLP Vancouver

Mark Slay Officer

Jasroop Grewal Young Lawyers Representative

North Shore Law LLP North Vancouver

Jennifer Chow Equality and Diversity Representative Department of Justice Canada Vancouver

Pihl Law Corporation Kelowna

To read more about each Executive go online: www.cba.org/BC/About_Us/main/executive.aspx \\

OCTOBER 2011 / BarTalk 9

sections section update

Criminal Justice Victoria

Keep Current A review of Independent advisor and expert witness Orville Nickel u provincial Section meetings. discussed police use of force: what Criminal Justice Victoria Meeting: June 6, 2011 Speaker: Orville Nickel Topic: Police Use of Force Part One: a Presentation by Orville Nickel

Alternate Dispute Resolution (ADR) – Nanaimo and Family Law – Nanaimo Joint Meeting Meeting: June 16, 2011 Speaker: Sally Campbell Topic: Reviewing Our Role in Conflict

Wills and Trusts Victoria Meeting: May 17, 2011 Speaker: Giuseppe (Joe) Scaletta Topic: Hallmarks of Abuse – A Framework to Identify Abusers of Older Adults

Senior Lawyers Speaker: Gerald Lecovin, QC Topic: Senior Lawyers Section: Brief History

10 BarTalk / OCTOBER 2011

the police are taught and what the contentious issues are. Mr. Nickel highlighted the standard “circle” model for how police are taught and how they review the use of escalating force. A criticism of that model is that it may be too subjective, i.e. “if you see a knife, you are justified in ramping up your use of force.” What is needed is the introduction of certain objective factors that should be woven into the analysis. These factors include the officer’s strength, gender, special training and the subject’s own particular characteristics such as mental health, injury or apparent strength.

ADR – Nanaimo and Family Law – Nanaimo Joint Meeting Ms. Campbell was inspired

uby several key ideas in Bernie Mayer’s book, Beyond Neutrality. The field called “conflict resolution” is immersed in a culture characterized by individuality, competition and oppositional thinking. The problem is either solved or not, the dispute settled or “failed.” This type of thinking can lead mediators to take on the role of the fixer or hero, and become overly involved in “solving” the clients’ dilemmas. Ms. Campbell addressed the idea of “conflict engagement” and examined how conflict specialists might expand their choices about who they are in conflict situations, and thus free themselves from the

counterfeit nurturance of the “hero” role. Other highlights included the idea that in complex and protracted matters, it is a myth to expect that mediators “resolve” disputes; it is more helpful to think in terms of conflict engagement, where the mediator analyzes and “names” the struggle and works with the parties to address the struggle in realistic ways. In a society that highly values independence, and retains a strong consciousness of tribe vs. tribe, mediators are always working to promote interdependence.

Wills and Trusts Victoria Mr. Scaletta drew on his

uwealth of experience work-

ing in the protection of older adults to describe a number of the situations he had encountered and provided examples of his hallmarks of abuse. This included control of finances, isolation, alienation of previous support system, ingratiation to the victim, and threats and intimidation both with the victim and with others attempting to assist or make contact with the victim. He pointed out that many techniques of abusers were common to other types of abuse and other victims. He highlighted that the degrees of capacity required for various actions or decisions in life fell on a scale and some decisions, which required very low capacity, could have substantial consequences. Being familiar with the techniques of abusers is something that would assist lawyers in drafting or documenting Will, Trust or Power of Attorney arrangements so that they can be alert to not being used by an abuser.

Senior Lawyers This is undoubtedly the most unique of the CBABC Sections. Created in 1996, its purpose was to prepare Senior Lawyers for eventual retirement from the practice of law. It featured a series of lectures on such matters as “How to Sell a Practice” and “What to do with your Files.” These lectures were delivered at dinner meetings held quarterly. However, two things happened. Firstly, we ran out of retirement-type topics; secondly, lawyers continued to attend these meetings even after they had retired. Not only lawyers, but retired judges also started to attend. These meetings were their method of retaining a connection with the profession to which many of them had devoted more than a half a century and which they were not prepared to quit cold turkey. As a result, the talks became broader. While continuing to contain practical information on the retirement process and life thereafter, they now encompassed legal matters of general interest and now included memoirs of lawyers who had practised law in unique situations. The last two talks given were on “Investment Strategies for Seniors,” delivered by Michael M. Ryan and “Myths that Form the Cornerstones of Securities Regulations,” by David Baines of the Vancouver Sun. The Section’s emailing list continues to grow.

Section NEWS

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

Thank YOU for Using the CBABC Online Section Enrolment! We are pleased to announce the winners of this year’s Early-Bird Section Enrolment Draw: Laurence Anderson in Maple Ridge, Lyndsey Delamont in Victoria and Robin Reinertson in Vancouver. Congratulations! The winners will receive a complimentary two-hour CBABC PD webinar for a great head start on their CPD credits. Our Online Enrolment has been a huge success: in its first year, more than 85 per cent of CBABC Section members chose the online system over the paper version. Along with speed and efficiency of use, the online system has significantly reduced delays in processing forms due to incorrect payment amounts and incomplete forms. A confirmation email is generated to reflect your Section choices and act as an invoice/receipt for your administrative needs. We welcome you to contact CBABC Sections staff and share your feedback using this new system. Enrol online today! www.cba.org/BC/PD/main/ section_enrolment.aspx

OCTOBER 2011 / BarTalk 11

features Jennifer Chow

Civility and Diversity are like Peanut Butter and Jam Or green eggs and ham.

ivility and diversity are hot topics these days: “Top complaint against lawyers is rude or uncivil behaviour,”1 “Lawyer reprimanded for being rude, profane,”2 “Legal Leaders for Diversity,”3 “For more diversity in the legal profession.”4 Civility relates to professionalism within the legal profession. Diversity relates to the composition of the legal profession itself. Are they related issues? How? Well, civility and diversity go together like peanut butter and jam. (For those with peanut allergies, please substitute moules and frites. For those with shellfish allergies, please substitute, hop and scotch. I’ll stop now.) The point is that when combined together, the end result is a pairing that enhances both the attractiveness of lawyers as well as the profession itself. Incivility is peanut butter gone rancid. It leaves a bad taste in your mouth and gives you a bellyache. Incivility is just a guise for one lawyer to act superior to another, either in knowledge, skill or temperament. There is no joy to the practice of law when a senior male lawyer tells a junior female lawyer to “go back to law school” during a court hearing. There is no joy in dealing with opposing counsel who asks a government lawyer: “how do you sleep at night?” I have even witnessed a senior male lawyer grab a copy of unfiled arguments from the hands of a

12 BarTalk / OCTOBER 2011

female lawyer only to callously fling the “courtesy” copy across his table. Lawyers should have fun practising law. By that, I do not mean laughs and good jokes. There should be joy in the practice of law and in dealing with our colleagues. Joy in our work (another pairing, like wine and cheese). Incivility takes the joy out of the courtroom and the profession itself. If we are not having fun doing our job, we might be irritable, bitter and angry. Worse yet, we might be leaving the profession. Indeed, a growing number of women lawyers are leaving the profession and only small numbers of visible minority lawyers are even joining the profession. We know this from recent reports published by the Law Societies of British Columbia5 and Upper Canada.6 If the practice of law was more civil and tolerated a diversity of views, would more women stay in the profession? Would more people of different backgrounds and culture join the legal profession? I hazard to guess but say yes. If lawyers are leaving the profession and incivility is part of the problem, then incivility discourages diversity within the legal profession. Rude or discourteous behaviour among litigators for example, whether employed for tactical gain

or otherwise sends a strong and arguably wrong message. That message is that only rude or aggressive lawyers need apply. Should this profession truly favour lawyers whose skins have grown tough? Or whose egos are so thick they insulate from the impact of uncivil behaviour? Or promote the idea that only one way of doing things works, that is, the aggressive way? No. That message is loud and clear. The recent Benchers’ Bulletin article points out the top complaint against lawyers in this province is rude or discourteous behaviour. If we can’t “bring sexy back” to the profession, let’s bring the fun back. (This is a reference to a Justin Timberlake song.7 If you do not like Justin Timberlake or hip-hop/ R&B, please substitute with an appropriate song that you like.) Indeed, let’s make a toast to peanut butter and jam. 1

Law Society of British Columbia, Benchers’ Bulletin, 2011: No. 2 Summer. 2 Toronto Star, June 24, 2011 online. 3 See for example, “GCs launch divers ity initiative”: http://business.financialpost .com/2011/05/09/gcs-launch-diversity -invitiative/ 4 The Globe and Mail, June 7, 2011 online. 5 See for example: www.lawsociety.bc.ca/ docs/publications/reports/Retaining women-business-case.pdf 6 See for example: www.lsuc.on.ca/ media/convapril10_ornstein.pdf 7 SexyBack, Justin Timberlake, 2006 CD: “FutureSex/LoveSounds”

Jennifer Chow is the Equality and Diversity Representative on the CBABC Executive and Chair of the CBABC Equality and Diversity Committee. The views expressed are her personal views.

ROBERT HOLMES

A Celebration of Civil Liberties

In Canada and the world.

he British Columbia Civil Liberties Association’s (BCCLA) celebration of its 50th anniversary in 20122013 will include a collection of writings on civil liberties in Canada and the rest of the world, for online and print publication. Early confirmations from some who will be contributing to this include The Right Honourable Madam Chief Justice McLachlin, the deans of all of the law schools in British Columbia and the University of Alberta and several law professors from across the country. We expect other jurists, legal scholars, and legal counsel to do so also. Dr. John Dixon and Dr. John Russell, who are both well-recognized Canadian philosophers and have served the BCCLA for many years, have agreed to write something and are encouraging others in the academic community to do so. Former Prime Minister Kim Campbell, former Attorney General of B.C. Andrew Petter, former Federal Cabinet Minister Stephen Owen, former B.C. Supreme Court Justice Tom Berger, prominent writer and philosopher John Ralston Saul, and others who have served or who are currently serving in public office or featured in the public arena have indicated they will as well. Contributions to this project are welcome from everyone! Articles on

any aspect of philosophy, history, law or social science relating to democracy, rights and freedoms would be most welcome. So would a simple, personal note about voting for the first time, or having the freedom to write a letter to the editor, or going to a church, synagogue or mosque and to worship as you pleased, or having the right to shop, dine or rent without discrimination because you live in a country that cherishes equality, respect and recognition under the law. An essay about a public issue that concerned you would be welcome. So would a poem or a short work of fiction showing human expression or creativity.

This is meant for everyone to feel free to participate in. As President of the BCCLA, I am pleased to invite everyone – that means you, tu, vous, and y’all – to participate. Quelle que soit la langue choisie – et les articles dans toutes les langues sont les bienvenus – vous avez la liberté d’expression. I want your help and involvement. This is both a personal invitation to you to provide a written contribution and a request that you pass along this

notice – which the CBABC has kindly agreed to publish here – to academics, students, professionals, businesspersons, workers, retired persons – in short, anyone who wishes to participate. Materials submitted will be published and be accessible for everyone to read, think about, discuss and enjoy. As we envisage it, topics covered may range from: reviews of current law, political practices and societal views and customs; historical studies of how rights and liberties that we now enjoy were won; how rights and liberties that are currently not understood, appreciated or recognized may in time come to general acceptance; personal accounts of how rights and liberties contributed to social or work advancement or fulfillment; social science studies and commentaries about how freedoms enhance personal security and development; political science, philosophical or legal studies on how participation in democratic government functions and ensures collective responsibility; and accounts of how artistic freedom contributes not just to the well-being of individual artists, but to the enjoyment of life by all of us. This is meant for everyone to feel free to participate in. Please send Robert Holmes a note at holmes@ bccla.org expressing your interest and join the preparations for this celebration now! Robert Holmes, President of BCCLA. OCTOBER 2011 / BarTalk 13

features IAIN T. BENSON

Expanding Constitutional “Dialogue” A lesson from South Africa.

highly significant public ceremony occurred on Thursday, October 21, 2010 in Johannesburg. It was the signing by all major (and many minor) religions in South Africa of the South African Charter of Religious Rights and Freedoms (“SACRRF”). This Charter, once passed into law, will be the first use of an interesting provision that is in the Constitution of South Africa (section 234), the principles of which ought to be reflected upon more in Canada. Section 234 is designed to give civil society organizations the chance to take a direct role in constitutional development. It provides that “in order to deepen the culture of democracy established by this Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution.” For the last couple of years numerous meetings and drafts led up to the Charter signing and the second phase, now ongoing, involves negotiation with the government to bring the SACRRF into law. The role that religions could play in relation to the ongoing formation of the South African Constitution was understood early on by the recently retired Honourable Justice Albie Sachs when he wrote: Ideally, in South Africa, all religious organizations and persons concerned with the study of religion would get

14 BarTalk / OCTOBER 2011

together and draft a charter of religious rights and responsibilities. …it would be up to the participants themselves to define what they consider to be their fundamental rights.1 It is assumed that legislation passed under this provision will be accorded a kind of “super statutory” status though there are, obviously, no other examples in existence and no litigation in relation to this provision. Though Canada’s Constitution does not contain a provision like section 234, perhaps the possibility of civil society contributing a “third voice” (or additional civic voices) to the process of constitutional interpretation and development could be encouraged in Canada by other means. A more direct encouragement of civic involvement would go some way to narrowing the problematic aspects of development through litigation where, for a variety of reasons (parties, narrowness of issue, time-constraints and costs), ad hoc development has significant drawbacks. What has occurred may be of great importance not only within South Africa but in many other countries as well since the principled extension of constitutional

development to the wider citizenry cannot but add to greater understanding and co-operation (as has been seen in South Africa) between groups. The process, document and meetings have shown that religions can cooperate at a high level of sophisticated and mature discussion and that principles important to each religion can be shared and recognized as important to all religions.2 1 A. Sachs, Protecting human rights in a new South Africa. Contemporary South African Debates (1990), at 46-47. 2 The text of the South African Charter as signed, and a longer article by the author, putting it in context, may be located at: www.iirf.eu/ fileadmin/user_upload/ journal/IJRF_Vol4-1.pdf at pages 130-134.

Iain T. Benson – B.A. (Hons), M.A., J.D., Ph.D. (cand.). Barrister & Solicitor, Senior Associate Counsel, Miller Thomson LLP, Toronto, Canada.; Of the Bars of B.C. and Ontario, Extraordinary Professor of Law, Department of Constitutional Law, Faculty of Law, University of the Free State Bloemfontein; Research Associate South African Institute For Advanced Constitutional Human Rights, Public and International Law Johannesburg. The author was one of the drafters of the Charter that is the subject of this article and is now an advisor to the Council for the Promotion and Protection of Religious Freedom that has been formed for the next phase of the Constitutional development to which reference is made. Address for correspondence: iainbenson2@gmail.com

MEGAN HAMILTON

Work Life Balance Forum 2011 Law Firm Award recipient – Stevens Virgin.

he Work Life Balance Awards were established in 2007 to recognize lawyers, law firms or organizations that demonstrate leadership in promoting healthier living within the practice of law. This year’s recipient, the Vancouver litigation firm Stevens Virgin, demonstrates how promoting a healthier and more fit lifestyle for their lawyers and employees has improved not only the health of individual lawyers and staff but has also helped create a healthier bottom line. Joe Weiler and Linda Robertson, the Forum Co-Chairs say that this year’s recipient law firm demonstrates how leadership from the top can engage the entire firm to improve productivity and morale and give a competitive advantage in the retention and recruitment of both lawyers and staff. “The Awards Committee was very impressed with how Stevens Virgin went beyond lunch and learns and fitness challenges to hiring a

workplace health and wellness consultant to advise on everything from fitness ‘boot camps’ to changing their health care provider to improve their benefits package. Other law firms can learn from what Stevens Virgin has initiated,” say Weiler and Robertson. When the firm went through a period of significant growth and change, there were many new faces and the firm needed a way to introduce new co-workers and build a stronger team. The initiative was led by Mark Virgin who saw personal benefits when he became healthier through better fitness and changes in his diet. Under Mark’s leadership, the firm hired a “boot camp” fitness instructor to lead a private, noon-hour class. The firm paid for employees who wished to participate but if an employee missed a class for a non-work-related reason, they paid back the $20 drop-in fee. The eight-month boot camp saw the majority of employees participating and it provided an

excellent way for lawyers, staff and management to interact in a fun and healthy atmosphere. Later, Mark initiated “lunch and learns,” health screens, participation in fundraisers and charity events, and flexible work schedules. Employees have embraced these activities with a 65 per cent participation rate among lawyers and staff combined. Job satisfaction has improved significantly for the 16 lawyers, 15 paralegals and other staff. This year, Stevens Virgin also retained a new health care provider and a workplace health and wellness specialist. Full-time benefits packages now include annual health screens administered on-site by a registered clinician. This gives employees immediate, confidential test results to assist them in making future health care decisions. The firm receives aggregate employee numbers that can be used to tailor future “lunch and learn” sessions and one-on-one consultations focusing on specific employee needs. The big picture? The focus on work-life balance initiatives has improved employee health. Stevens Virgin believes this gives a competitive business advantage, by attracting and retaining motivated lawyers and staff, increasing productivity, enhancing teamwork and improving morale. In addition, the firm is now better situated to control the costs of extended health benefits, sick time and extended leave. From left to right – Linda Robertson, Co-Chair Work Life Balance Forum; Jo-Anne Weiler, TheraHealth Network; Mark Virgin, Principal, Stevens Virgin Litigation Counsel; Megan Hamilton, Director of Operations, Stevens Virgin Litigation Counsel; Joe Weiler CoChair Work Life Balance Forum. OCTOBER 2011 / BarTalk 15

features CHRISTINE MURRAY

Questionnaire Thoughts from Nitya Iyer, the outgoing President of West Coast LEAF.

itya Iyer is the outgoing President of West Coast LEAF. She is a partner at Lovett Westmacott law firm in Vancouver. Her career in law, first as an academic, then as a member of the B.C. Human Rights Tribunal, and for the last decade in private practice, has always been concerned with equality and diversity issues. Nitya has answered some questions about equality and diversity in the law, the work of West Coast LEAF and herself for this month’s equality and diversity issue.

devotion to long hours at the office produces the best lawyers, and instead encourage people to be more healthy and diverse in their interests, we might increase the quality and efficiency of our legal services. We might also encourage more women to stay in private practice. Instead, we find more and more female lawyers going into public sector work with the private sector remaining predominantly male, and less and less amenable to change.

Q: What do you see as the biggest challenge to achieving equality for women in the legal profession?

Q: What do you see as LEAF’s greatest success in the past year?

I think that one enormous challenge is to change the “billable hour” as the (virtually) exclusive basis for valuing lawyers and the work they do. We assume that the value of legal work is best measured by the number of hours put into a file, and that the best lawyers are the ones who bill the most hours, devoting as much of their time to that work as possible. I don’t find that to be true. I find that time I spend away from the office makes me much more efficient when I am there, and that a “billable hour” can be very valuable or not productive at all. Having children made me much better at multi-tasking and at using my time efficiently. These are valuable skills to a lawyer, and they enhance my contribution to my firm and my clients. If we could stop assuming that a single-minded 16 BarTalk / OCTOBER 2011

In the area of public legal education, I am thrilled that we reached more B.C. students last year than ever before with our youth programs on sexual consent and workplace rights. One of our litigation highlights was certainly our participation in the Polygamy Reference, which represented the culmination of many years of work with women who have left Bountiful. And, in the area of law reform, we were influential in the government’s decision to no longer remove the family shelter allowance from families whose children have been temporarily apprehended, which created a huge and unnecessary barrier to their return. I am also proud of our contributions to the push for legal aid reform in B.C., including the publication of Rights-Based Legal

Aid: Rebuilding B.C.’s Broken System in November 2010. Q: What do you see as the biggest challenge to achieving equality for women in the law?

I think, as a society, we have failed to confront the very fundamental ways in which access to economic opportunities and resources perpetuates inequality for many women. While we have made enormous progress in achieving formal equality, we have not ensured that the conditions necessary for women and other marginalized groups to fully enjoy those rights are met. Not all Canadians have equitable access to health, housing and education – and there is no social consensus that these are even equality issues. Q: Which living person do you most admire?

My spouse’s mother, who worked as a Children’s Aid social worker in Winnipeg in the 1950s and 60s, raised six children (four of them daughters) and has been a staunch advocate for reproductive rights and equality for as long as I have known her. She is a person of immense energy and grace, who has just celebrated her 94th birthday and is always surprised when she looks in the mirror and sees, as she puts it, “a little old lady.” I would like to be just like her when I grow up. Continued in BarTalk Online....

If you would like to read more about Nitya’s view on equality and diversity go to www.cba.org/bc/ bartalk_11_15/10_11/guest_christine_murray.aspx. Family Lawyer Christine Murray practises at Berge Hart Cassels LLP.

Bench & Bar Dinner The Canadian Bar Association, BC Branch and the Law Society of BC warmly invite lawyers and judges to attend the 27th annual Bench & Bar

Date: Time:

Tuesday, November 8, 2011 5:45 pm reception (cash bar)

Place:

6:30 pm dinner The Fairmont Hotel Vancouver British Columbia Ballroom

Dinner. Join the CBABC Executive and Provincial Council and the Law Society Benchers in paying homage to those who have made outstanding contributions to the cause of justice in BC.

900 West Georgia Street Vancouver, BC Dress: Business attire Tickets: $100 (individual) $760 (table of eight)

The dinner will honour the recipient of the CBABC Georges A. Goyer, QC Memorial Award for Distinguished Service (to be announced this fall).

ORDER EARLY – DEADLINE TO PURCHASE TICKETS IS OCTOBER 25, 2011 Name: Firm: Address: City:

Postal code:

Telephone:

Fax:

Email:

Dietary restrictions:

TICKET AND PAYMENT INFORMATION tickets @ $100.00 = $

Cheque enclosed (payable to the Canadian Bar Association, BC Branch)

tables @ $760.00 = $

Visa

Mastercard

Card number

Amount due:



Expiry date



Signature

(ticket price includes HST #106843451 RT)

Mail, email or fax (fax orders require payment by credit card) your ticket order to: Canadian Bar Association, BC Branch – Attention: Events 10th Floor – 845 Cambie Street, Vancouver BC V6B 5T3 Email: events@bccba.org; Fax: 604-669-9601; Tel: 604-646-7855

OCTOBER 2011 / BarTalk 17

news&events NATIONAL NEWS

Diversity Resources

From left: CCCA Chair Geoffrey Creighton and then-CBA President Rod Snow with Stephen N. Zack, then-ABA President and Bill Robinson, then-ABA Vice-President. NATIONAL NEWS

CBA/ABA Protocol n In August, the American Bar

Association and the CBA signed a historic agreement that will lead to enhanced cooperation and information exchanges between the two organizations, their in-house counsel constituencies, and the U.S. and Canadian legal professions. A signing ceremony attended by the associations’ presidents and witnessed by other Bar leaders was held on August 6 in Toronto at the opening of the ABA Annual Meeting. “We have enjoyed a long and warm relationship with the Canadian Bar Association,” said thenABA President Stephen N. Zack of Miami, Fla. “The signing of the agreement, on the occasion of the

ABA’s Annual Meeting in Toronto, will formalize our mutually beneficial cooperation that has been in place for the past 80 years.” “This marks the start of a period of even greater cooperation,” says then-CBA President Rod Snow of Whitehorse. “The possibilities are exciting. The protocol underscores the growing significance of cross-border legal business between our two countries and the increasingly global nature of the practice of law.” www.cba.org/CBA/news/ \\ 2011_Releases/2011-08-03-ABACBA-eng.aspx

GO ONLINE FOR MORE INFORMATION

NEWS

Incapacity Planning Tools New, standard forms, which allow individuals to plan for the possibility of future incapability, are now available on the Ministry of Attorney General website.

18 BarTalk / OCTOBER 2011

www.ag.gov.bc.ca/incapa\\ city-planning

GO ONLINE FOR MORE INFORMATION

The face of the legal profession – and the society it serves – is constantly changing and evolving. On the CBA’s diversity resources page, you can access tips for firms and member organizations seeking to promote inclusion and diversity, read about diversity benchmarks, and learn about mentoring as a path to diversity. The site links to guides, \\ reports and resources from the CBA and across the web. www.cba.org/cba/Practice Link/balance_diversity/ default.aspx

NATIONAL NEWS

2011 Resolutions Adopted by Council During the course of its twoday meeting in Halifax, CBA Council debated policy resolutions on diverse subjects. Among the issues dealt with in the new policy resolutions adopted by Council were class action judicial protocols, mentally ill persons in the criminal justice system, justice in sentencing and preserving special consideration for Aboriginal persons in the criminal justice system. The resolutions are \\ posted at this link: www.cba.org/CBA/ resolutions/2011res/

NATIONAL NEWS

NEWS

2011 Award Winners

Court of Appeal Changes

The CBA announced its roster of award winners for 2011 at the Canadian Legal Conference in Halifax. The awards recognize legal scholarship, service to the CBA, pro bono work, the promotion and advancement of the cause of equality, and excellence in legal journalism. Among those honoured were Dave Joe of Vancouver, winner of the CBA President’s Award, which

The Court of Appeal has reorganized and reissued all of its practice directives and practice notes effective September 19, 2011. See the Court of Appeal website for details of the change.

recognizes the significant contribution of a Canadian jurist to the legal profession, to the CBA or the public life of Canada; and Melina Buckley of Vancouver, winner of the Louis St. Laurent Award of Excellence for distinguished service to the association. www.cba.org/CBA/ \\ news/2011_releases/201108-12-Awards-eng.aspx

NEWS

Acting for Lawyers Running nine Sunday nights – October 9 to December 4, 2011 from 7:00 p.m. - 9:00 p.m. at Carousel’s Studios, Granville Island. www.touchstonetheatre.com/ \\ acting-for-lawyers

FEATURE BY Rebecca Bromwich

RARE Finds Project – CBA’s National Standing Committee on Equality

n CBA’s National Standing Com-

mittee on Equality is collaborating with CBA’s Law Reform and Equality Staff lawyers Rebecca Bromwich and Kerri Froc on two major projects. The Standing Committee on Equality (SCE) is working so that lawyers from historically marginalized groups – including aboriginal people, women, people with disabilities, racialized people and members of the lesbian, gay, bisexual and transgender (LGBT) community – advance in the legal profession. To this end, the RARE Finds online resource centre recently launched at the 2011 Canadian Legal Conference in Halifax.

RARE Finds is geared to assist firms, lawyers from marginalized groups and people seeking to reenter the profession after a period of absence to address issues about retention, advancement and career re-entry. The website will provide resources for retention, advancement and re-entry (RARE). It seeks to foster member excellence and ensure equality in the legal profession. Law firm leaders will find resources here about equality best practices. Information includes innovations that bring more flexibility and equality to the practice while they earn profits. Lawyers can use the resource to access tools and encouragement to secure their place in the legal profession. RARE Finds will also feature profiles of equality role models. CBA members from historically

marginalized groups who have been nominated by their peers for strong work in surmounting barriers are profiled together with legal organizations that are succeeding in practising law in innovative and flexible ways. The RARE Finds Project seeks to enable and recognize CBA member excellence while working to reify equality within the legal profession. It provides tools and resources for lawyers and leaders seeking to effect change and be that change to the profession. To learn more about the project \\ and for full profiles of dozens of CBA member innovators and equality leaders go to the RARE Finds website at:

www.cba.org/cba/Equity/rare/ default.aspx

GO ONLINE FOR MORE INFORMATION

OCTOBER 2011 / BarTalk 19

news&events FEATURE BY Koml Kandola

Diversity in the Profession – What Have We Achieved? n In recent times, there has been

much discussion surrounding the need for, and notional benefits of, having diversity in law firms. We’ve heard and (should by now) accept the research that having a diverse population of lawyers in a firm has internal and external benefits. It makes the firm attractive to socially responsible corporations and provides different outlooks and perspectives when tackling clients’ legal issues and problems. Working at a firm that values and respects diversity is of importance to most of its lawyers and staff as well. But have we made any progress in determining whether law firms are actually implementing or increasing diversity in their workplaces? What hard or concrete information can a firm offer its clients, and prospective lawyers looking to join the firm, to show its commitment to diversity? NEWS

CLEBC Update CLEBC is delighted to announce the launch of its latest practice manual British Columbia Business Disputes is a practice-oriented publication covering a wide range of actions, from commonlaw torts to rights of action conferred under federal and provincial statutes. The book incorporates the latest legal developments, with a focus on British Columbia cases.

20 BarTalk / OCTOBER 2011

In our subcommittee’s discussions on equity and diversity in the legal profession, I was personally struck by the lack of data and information on diversity available, such as breakdowns by gender, race, or other measures. When we look to see what steps we have actually taken to increase diversity, we may find that without specific measures in place to determine whether diversity is actually being embraced, one’s workplace may be much less diverse in practice than it first appears in notional conversation. If we don’t measure these steps, there is no way to assess whether there has been any progress in increasing diversity. For example, what is your firm’s definition of diversity – does it relate to gender diversity, racial diversity or another measure? Are we afraid to measure these things for fear of Intended to provide guidance for solicitors advising clients and litigators pursuing or defending claims, chapters include critical analysis of key elements, defences, jurisdiction, remedies, leading case law, sample pleadings and practice tips. An excellent editorial board has reviewed the new book: David Crerar, Ludmila Herbst and James MacInnis. The book includes chapters on misrepresentation; conspiracy; intellectual property infringement; breach of confidence; fiduciary duty; unjust enrichment; damages and remedies; contribution and apportionment; and much more.

ruffling the feathers of political correctness? But if we don’t know where we are now, how will we ever measure whether we’ve made any progress in the future? How will we hold ourselves accountable? How will we know whether any of our strategies for increasing diversity are working or not, and if not, why aren’t they working? The purpose of this article is to start us thinking about how committed we are to diversity and how we may want to measure our progress in that regard. Recognizing that there is a lack of diversity in the profession is the first step – but without measuring progress, or monitoring ourselves on the successes or failures of our strategies, it becomes too easy to hide behind the talk and avoid looking at whether we’ve really made any progress at all. British Columbia Business Disputes includes the usual finding tools: tables of cases, statutes, and references, along with a comprehensive index. Released in September, the book will be formally launched at CLEBC’s Business Disputes course on October 7, 2011. Contact CLEBC customer service at 604-669-3544 or order the book and register for the course online by following the links from www.cle.bc.ca.

legislative update

Acts In Force Current from June 29, 2011 to August 30, 2011 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclusively at www.cba.org/bc. MISCELLANEOUS STATUTES AMENDMENT ACT (NO. 2), 2011, S.B.C. 2011, C. 13 (BILL 13) Sections 35 to 40, 42 to 51, 53 to 62, 64 to 70, 71(a), 72(a), 73 to 93, 94(a), 95, 99, 100 and 106 are in force July 21, 2011 MUNICIPALITIES ENABLING AND VALIDATING ACT (NO. 4), S.B.C. 2011, C. 14 (BILL 15) Part 1 is in force July 21, 2011 POLICE (INDEPENDENT INVESTIGATIONS OFFICE) AMENDMENT ACT, 2011, S.B.C. 2011, C. 8 (BILL 12) Sections 1(a) and (c), 2, 4, 6, 10, 12(b), 20 and 21 and section 8 except insofar as it enacts sections 38.09 and 38.10 of the Police Act are in force July 29, 2011

Standard of Hair

branch & bar

Calendar

OCTOBER 1

Mediate BC Mediation Course

Nanaimo Battle of the Bar Bands

7 2011 Pacific Legal Technology Conference 13 CBABC PD Seminar: The Top Ten Causes of Claims

NOVEMBER 8 27th Annual Bench and Bar Dinner 9 & 23 CBABC PD Seminar: The Top Ten Causes of Claims 18-19 CBABC 2011 Annual Branch Conference in Las Vegas, Nevada 29 CBABC PD Joint Seminar: The Top Ten Causes of Claims

BATTLE OF THE BAR BANDS The CBABC Tenth Annual Battle of the Bar Bands took place before an enthusiastic and sold-out crowd at the Commodore Ballroom on Friday, June 10, 2011. The competition was fierce with seven well-seasoned veteran bands taking to the stage. The Winner of the coveted “ZSA Cup” for best band was Mike Mjanes’ “Standard of Hair.” First runner up was Pat Haberl’s “The Disclaimers” and second runner up was longtime seasoned veteran Howard Mickelson’s “Still Living At Home.” The Disclaimers

Still Living At Home

OCTOBER 2011 / BarTalk 21

news&events FORUM

EVENT RECAP

Why Legal Aid Matters

Film Celebrates First Black, CanadianBorn Jurist

Why Legal Aid Matters is a forum to discuss the importance of legal aid in British Columbia.

n On February 25, 2011, the

British Columbia chapter of the Canadian Association of Black Lawyers screened The Making of a Judge, a documentary chronicling the life of The Honourable Justice George E. Carter, the first Canadian-born black jurist. Sponsored in part by the CBABC, the screening attracted more than 80 attendees to the UBC Robson Square campus during February’s Black History Month festivities. Created and produced by Justice Carter’s daughter, Linda V. Carter, the film highlights Justice Carter’s life and accomplishments. After receiving his Bachelor of Arts degree from the University of Toronto’s Trinity College in 1944, Justice Carter joined the Canadian army. While attending Osgoode Hall Law School from 1945 to 1948, Justice Carter worked as a train porter to pay

Please feel free to share \\ your stories and experiences about why legal aid matters to you by going to: www.whylegalaidmatters.com RESOURCES

his tuition, as that was the only job available for most black men. In 1945, Justice Carter articled with the only black lawyer practising in Ontario, B.J. Spencer Pitt. He was appointed to the Ontario Provincial Court in 1979 and later served 16 years on the Ontario Court of Justice. Due to a sudden illness, Justice Carter was unable to attend the event, but his daughter led the diverse audience, that included members of the legal community, in a lively question and answer period.

Legal Aid Resources Legal aid, law reform and access to justice are very much on the public mind these days. To assist the public and media in researching these important issues, the Legal Aid Committee of the CBABC has collected information, research and other resources. www.cba.org/bc/ \\ Public_Media/legal_aid/ default.aspx

What Will Dubai 2011 Offer? The

largest gathering of the international legal community in the world – a meeting place of more than 4,000 lawyers and legal professionals from around the world More than 180 working sessions covering all areas of practice relevant to international legal practitioners The opportunity to generate new business with the leading firms in the world’s key cities Registration fee which entitles you to attend as many working sessions throughout the week as you wish Up to 25 hours of continuing legal education and continuing professional development A variety of social functions providing ample opportunity to network and see the city’s key sights Integrated guest programme AND Excursion and tours programme

22 BarTalk / OCTOBER 2011

grantsapproved Law Foundation of British Columbia

Continuing Programs and Projects $168,000 TOGETHER AGAINST POVERTY SOCIETY Legal Advocacy Program $166,920 GREATER VANCOUVER LAW STUDENTS’ LEGAL ADVICE SOCIETY Law Students’ Legal Advice Program

The Board of Governors of the Law Foundation of B.C. met on June 18, 2011 and approved funding for a number of continuing programs and projects.

KETTLE FRIENDSHIP SOCIETY $150,000 Mental Health Legal Advocacy Program: 2012-2013 $112,500 Mental Health Legal Advocacy Program: 2011-2012

Chair Margaret Sasges is pleased to announce that funding totalling $3,707,440 was approved for 44 programs and projects:

$112,500 SOUTH FRASER WOMEN’S SERVICES SOCIETY Legal Advocacy Program

Funding totalling $673,965 was approved for the following six projects:

ABBOTSFORD COMMUNITY SERVICES SOCIETY $109,000 Legal Advocacy Program: 2012-2013 $81,750 Legal Advocacy Program: 2011-2012

$266,670 ECOJUSTICE CANADA B.C. Litigation Program FIRST UNITED CHURCH $175,000 First United Church Poverty Law Advocacy Program: 2012-2013 $72,920 First United Church Poverty Law Advocacy Program: 2011-2012 $75,000 TERRACE AND DISTRICT COMMUNITY SERVICES SOCIETY Poverty Law Advocacy Services Project MPA – MOTIVATION, POWER & ACHIEVEMENT SOCIETY $56,250 Vancouver Court Services Program: 2011-2012 $28,125 Vancouver Court Services Program: 2012-2013

Funding totalling $2,208,775 was approved for the following 24 continuing programs: $323,610 B.C. BRANCH OF THE CANADIAN BAR ASSOCIATION Dial-A-Law, Lawyer Referral and Law Week

COMMUNITY CONNECTIONS SOCIETY OF SOUTHEAST B.C. $89,210 Travelling Poverty Law Advocate Program: 2012-2013 $66,910 Travelling Poverty Law Advocate Program: 2011-2012 $84,375 B.C. CENTRE FOR ELDER ADVOCACY AND SUPPORT Legal Advocacy Program $84,375 MPA – MOTIVATION, POWER & ACHIEVEMENT SOCIETY Court Services Program KI-LOW-NA FRIENDSHIP SOCIETY $82,500 Aboriginal Legal Advocate Program: 2012-2013 $61,875 Aboriginal Legal Advocate Program: 2011-2012

CONTACT WOMEN’S GROUP SOCIETY $75,000 Legal Advocacy Program: 2012-2013 $56,250 Legal Advocacy Program: 2011-2012 PORT ALBERNI FRIENDSHIP CENTRE $75,000 Outreach Legal Advocacy Program: 2012-2013 $56,250 Outreach Legal Advocacy Program: 2011-2012 SOCIAL HEALTH & ECONOMIC DEVELOPMENT SOCIETY $42,000 Legal Advocacy Program: 2012-2013 $24,500 Legal Advocacy Program: 2011-2012 $35,000 YELLOW PAGES GROUP Advertisement of Public Legal Services $20,000 PROVINCIAL COURT OF BRITISH COLUMBIA Judicial Interns Circuit Court Program

Funding totalling $75,000 was approved for the following Child Welfare Fund Project: $75,000 NENAN DANE ZAA DEH ZONA CHILDREN AND FAMILY SERVICES Aboriginal Traditional DecisionMaking and Dispute Resolution

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

ACTIVE SUPPORT AGAINST POVERTY $75,000 Legal Advocacy Program: 2012-2013 $56,250 Legal Advocacy Program: 2011-2012

OCTOBER 2011 / BarTalk 23

professionaldevelopment email: PD@bccba.org

WEBSITE: CBA.ORG/PD \\

The B.C. Branch of the Canadian Bar Association is recognized by the Law Society of British Columbia as a provider of professional development activities. CBABC is committed to providing relevant and cost-effective ways to obtain your mandatory Continuing Professional Development (CPD) hours.

Conferences The 6th Annual CBABC Branch Conference

Viva

LEX VEGAS II Return to Las Vegas

Date: November 18-20, 2011 Speakers: A selection of quality speakers from Canada and US Location: Las Vegas, Nevada Details: Do not miss your chance to register! This conference is nearly sold out. Complete all 12 of your 2011 CPD credits, including the 2 hour required professional responsibility and ethics, client care and relations, and practice management component.

Upcoming In-Person Seminars The Top Ten Causes of Claims Bumps, Potholes and Flats on the Road to an Accident-Free Practice Speakers: Susan Forbes, QC and Margrett George, Lawyers Insurance Fund Seminar Dates and Locations:  Date: October 13, 2011 Location: Surrey  Date: November 9, 2011 Location: Prince George  Date: November 23, 2011 Location: Nanaimo

Undertakings – Avoiding the Pitfalls Seminar Dates and Locations:  Date: November 29, 2011 Speakers: Ralston Alexander, QC, Cook Roberts LLP and Kathryn Berge, QC, Berge Hart Cassels Location: Victoria

 Date: December 7, 2011 Speakers: Curtis Darmohray, Pushor Mitchell LLP, and Wesley Shields, FH&P Lawyers Location: Kelowna

Save the Date Department of Justice in Partnership with the CBABC Professional Development: Date: November 23, 2011 Speakers: The Honourable Chief Justice Robert Bauman, Supreme Court of B.C.; The Honourable Chief Judge Thomas Crabtree, Provincial Court of B.C.; Robert Brun, QC, Harris & Brun; plus more TBA Location: TBA Attendance of this seminar will provide you with 3.5 hours professional responsibility and ethics, client care and relations, and practice management component for your 2011 Law Society of B.C. reporting.

\\ Don’t forget to keep checking our website www.cba.org/BC/PD/main/conferences.aspx for

upcoming Webinars, Seminars and Updates.

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 under MEMBERSHIP. BCLMA/CBABC Support Staff Compensation and Charge-Out Rates Surveys for 2011 will be available for \\

purchase November 2011. The Support Staff survey provides your firm with comprehensive, up-to-date compensation information. Stay competitive and know your market!

Vancouver Canucks 2011-2012 Season. For further information on ticket availability, please visit the Member \\ Savings page under Sports or contact us by email to members@bccba.org.

24 BarTalk / OCTOBER 2011

displayads email: ads@BCcba.org

T: 604.448.0200 | www.wldtax.com

BarTalk Gets Results display Ad RATES

insert (all of B.C.)

Full Back Page $5,000

CBABC Members/Firms $1,440

We are Chartered Accountants who work with lawyers and nancial advisors to develop innovative US and cross-border tax strategies for clients with US investments and business operations.

FULL INTERIOR PAGE Commercial Organizations $3,500 $2,880 1/3 INTERIOR Page $1,620

Next deadline: Nov. 10 Next mailing: Dec. 2

Our services include: • US Federal and state tax return preparation • Consulting on transfers to/from US • Acquisition of US real property

1/6 INTERIOR Page $1,000

Direct BarTalk advertising inquiries to: CBABC Email: ads@bccba.org Tel: 604-646-7856 or 1-888-687-3404

Next deadline: Nov. 4

Warren Dueck, FCA/CPA • Steve Flynn, CA/CPA • Laura McLeman, CA

BarTalk-1-6page_ad.indd 1

3/17/11 3:03:12 PM

WCB & CPP

DISABILITY APPEALS

GC 390 Howard Ave. Burnaby, B.C. V5B 3P8 Canada

Endorsed by:

604.591.8187

info@gosalandcompany.com www.gosalandcompany.com

GOSAL & COMPANY BARRISTERS & SOLICITORS

Sarj Gosal B.A., LL.B.

254 - 12899 76th Ave. Surrey, BC V3W 1E6

WANT TO TAKE A AT ACTING?

STAB

Don’t worry- you haven’t missed The Lawyer Show auditions yet! TUES NOV 1 6 - 9pm & SAT NOV 5 2 - 5pm CAROUSEL THEATRE, 1411 Cartwright Street (on Granville Island )

For more audition information go to www.touchstonetheatre.com/the-lawyer-show

The Lawyer Show 2012

Guys and Dolls

A Musical Fable of Broadway, Based on a Story and Characters of Damon Runyon Music and Lyrics by Frank Loesser Book by Jo Swerling and Abe Burrows Sean Vanderfluit, Scott Johnston, Daniel McLeod & Jonathan J. Weisman A FUNNY THING HAPPENED ON THE WAY TO THE FORUM THE LAWYER SHOW 2010

The Lawyer Show is a fundraiser for Carousel Theatre and Touchstone Theatre, both registered charities. The 2012 installment plays the Waterfront Theatre from May 2 - 5.

OCTOBER 2011 / BarTalk 25

barmoves Who’s Moving Where and When Carol M. Cash

Bing Fu

has joined the insolvency law practice of Gehlen Dabbs as an associate.

has joined Fasken Martineau DuMoulin LLP as a Practitioner of Foreign Law in the firm’s Asia Pacific Practice group. She is fluent in Mandarin and works with clients on all legal matters involving China and Chinese law.

Jeremy Chan

Rachel Forbes

was promoted to senior counsel at Methanex Corporation effective July 25, 2011.

has joined West Coast Environmental Law. Her work focuses on environmental assessment law reform, and other law and policy projects related to local government sustainability, natural resources and climate change.

Susanne Raab

Magda A. Grala

has recently joined Pacific Medical Law. Susanne’s practice focuses on representing individuals and families who have suffered injuries as a result of medical malpractice.

has joined Waterstone Law Group LLP’s Langley office. Magda will be practising general corporate/commercial, commercial lending and real estate.

Nicholas Roos

Kirsten Anderson

has joined Fasken Martineau DuMoulin LLP as associate in the firm’s Banking & Finance group.

has joined Fraser Milner Casgrain LLP as an associate in the Corporate Commercial group. She has been a member of the California State Bar since 1990 and was called to the British Columbia Bar in 2011.

26 BarTalk / OCTOBER 2011

newmembers Space is at a premium and available on a first-come first-serveD basis so send your Bar Move (max. 35 words) and photo to CBA@BCcba.org now. FOR MORE BAR MOVES GO TO BARTALK ONLINE

David R. Reid has been appointed the Head of Davis LLP’s Global Mining Group.

July & August 2011 Regular Members

Ravina Biring

Kirsten Anderson

Jeremy Comazzetto

Fraser Milner Casgrain LLP Vancouver Gavin Cameron

Fasken Martineau DuMoulin LLP Vancouver Brahm Dorst

Vancouver Marie Garel

Benjamin Ralston has joined Ng Ariss Fong, Lawyers as an associate. Benjamin practises administrative law and general commercial litigation. His administrative law litigation practice includes professional regulation, environmental and aboriginal law.

Borden Ladner Gervais LLP Montréal Marianne Gingras

Borden Ladner Gervais LLP Montréal Kara Hardin

Goodmans Vancouver Richard Li

Pushor Mitchell LLP Kelowna Karim Manji

Emily Pitcher has joined Fraser Milner Casgrain LLP’s Litigation group as an associate. Emily articled with Fraser Milner Casgrain LLP and was called to the Bar in August 2011.

has joined Fraser Milner Casgrain LLP’s Vancouver office as an associate in the Real Estate and Construction groups. Jen articled with Fraser Milner Casgrain LLP and was called to the Bar in August 2011.

Victoria Janis Ko

Richmond Mikhael Magaril

Coquitlam Jaskarmdeep Mangat

Vancouver

Leslie Perry

New Westminster Carly Poissant

Surrey Harkamal Rai

Roper Greyell LLP Vancouver Sarah Runyon

Supreme Court of British Columbia Victoria Amy Ulveland

Kamloops

Twining & Short Vancouver

Articling Students

Anne Merminod

Jamieson LLP Edmonton

Borden Ladner Gervais LLP Montréal Leslie Sullivan

Cuelenaere Kendall Katzman & Watson Saskatoon

Scholar Jennifer Wong

Vancouver

Ashwin Madhavan

Joomratty & Virk Vancouver

Law Students Dawood Ahmad

Maple Ridge

Brandon Amirie Emery

Joyce Bolton

City of Calgary, Law Department Calgary Danielle Bryant

Fasken Martineau DuMoulin LLP Vancouver To view all new \\ members, including Articling Students, please visit www.cba.org/

bc/bartalk_11_15/10_11/ membership.aspx.

Christine Arnold

Vancouver

GO ONLINE FOR MORE INFO

OCTOBER 2011 / BarTalk 27

UNIQUELY

DI F F E R E N T

Where Else Can You meet in spaces so inviting you won’t want to adjourn.. Only at Tulalip. AAA Four Diamond | Condé Nast Top Rated Resort

Sales & Catering: (888) 272-1111 | www.tulalipresort.com | 10200 Quil Ceda Blvd. | Tulalip, WA 98271 I-5. Exit 200 between Seattle & Vancouver BC