BarTalk I February 1989

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EWSLETTER FTHE ANADIAN BAR 3S0CIATI0N, C. BRANCH

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B ar TA l k President's Report

EBRUARY, 1989 'OLUME 1 ’UMBER 1

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Introducing BarTalk In September, 1988, when Provincial Council approved the budget of the B.C. Branch for the 1988/89 year, Council gave its blessing to what, in fact, will be the sixth reincarnation of a Branch newsletter.

IGHLIGHTS RESIDENT'S EPORT ROVINCIAL OUNCIL IGISLAT1VE PDATE INTER INVENTION

A survey of the membership conducted in April, 1986, indi­ cated one high priority set by the membership was to be kept bet­ ter informed. Budget restraints have not allowed the Branch to consider a separate newsletter until the current budget of the Branch was struck.

BarTalk will be published on a monthly basis (except for July and August which will be a combined issue) and hopefully will be a means of improving communications with the mem­ bership. Suggestions and com­ ments are most welcome. Write to “The Editor, BarTalk, B.C. Branch of the Canadian Bar Association, Suite 504,1148 Hornby Street, Vancouver, B.C., V6Z 2C3”.

On December 10 Provincial Council had its first look at the Report. The Attorney General, Bud Smith, attended the meeting and gave Council an overview of the Report.

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AM Jim Vilvang The following represent some of the issues your Executive is now dealing with:

Hughes' Report The report of the Justice Reform Committee entitled Access to Justice was released to the public by the Attorney General on December 1,1988. The Attorney General arranged for a copy of the report to be mailed to every law firm and sole practitioner in the province.

In an advance briefing to senior officers of the B.C. Branch and the Law Society, the Attorney General indicated his intention of early implementation of some recommendations in the report.

A high priority of the B.C. Branch will be to ensure a full review and discussion of the recommendations in the report.

The Attorney General has given assurance that he wishes full comment from the legal profes­ sion and from the community at large before implementing an recommendations. The orga­ nized bar cannot debate too long as the Attorney General will be seeking an initial response from the bar early February.

All Civil Litigation, Family Law and Criminal Justice Sections of the B.C. Branch have been requested to prepare a written opinion on the report by mid January. It is the intention of the Branch Executive to schedule a full debate on the written sub­ missions of the Sections at the February 10th meeting of the Provincial Council scheduled for Victoria.

I want to ensure that every provincial section reviews the Report as well as the local and county bar associations. It is my plan to assign a member of the Branch Executive responsibility for co-ordinating the response from the provincial sections and local and county bar associa­ tions.

Paralegals For many years the B.C. Branch and the Law Society have co­ operated in a joint committee on the role and status of paralegals.

This issue is extremely impor­ tant to the legal profession and is under review by a new Com­ mittee of the Benchers. Council member, Parker McCarthy, of Duncan, represents the Branch on the new Benchers Committee and is a member of a National CBA Task Force on Paralegals.

Pre-paid legal expenses The concept of pre-paid legal expense plans has a long history and they are becoming a reality in this province. At the annual

meeting of the B.C. Branch last June, the members heard details from Green Shield Prepaid Ser­ vices Inc. which will offer a plan in this province and is seeking sponsorship from the B.C. Branch. Provincial Council has authorized the Branch Executive to negotiate some form of spon­ sorship and negotiations are continuing. With or without sponsorship pre-paid legal expense plans are a reality and the B.C. Branch can play a role on behalf of the profession and the public to ensure such plans are for the benefit of the public and that lawyers have reason­ able opportunity to compete for the business.

Provincial Council At the December 10,1988 meet­ ing of Provincial Council, Attor­ ney General Bud Smith com­ mented on the recently released report of the Justice Reform Committee headed by Deputy Attorney General E.N. Hughes.

The report Access to Justice explores all facets of the Justice System and recommends dra­ matic changes.

Smith said his Ministry, working with the legal profession and the public, is trying to improve an excellent system that nas served us extremely well. In the pro­ cess, he saia, care must be taken not to undo what the public now likes and trusts. The Attorney General hopes to introduce reform legislation in March or April, 1989, and he urges the Bar to marshall it's resources so that feedback on the recommenda­ tions is received on a timely basis.

Council passed by a vote of 40-1 a resolution commending the Justice Reform Committee “for a job well done” and supporting early implementation of the process.

Branch President, Jim Vilvang, advised Provincial Council that the Criminal, Civil and Family Law Sections of the B.C. Branch are working on responses to the Reform Recommendations and

are free to submit reactions directly to the Attorney General.

In addition, further debate on the Recommendations will take place at the next Council meet­ ing on February 10,1989.

Provincial Council wants to nar­ row the gap between salaries, pensions and other benefits paid to the Provincial Court Judges and the County Court Judges in the province. A resolution was placed before the meeting rec­ ommending that compensation aid to Provincial Court Judges e “equivalent” to County Court Judges. While the original motion was defeated 22-15 an amended motion substituting the word “closer” for “equivalent” passed easily.

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An attempt to control costs by limiting the number of Section Chairmen eligible to attend B.C. Provincial Council Meetings failed when Council debated the subject at it's December 10th meeting.

Provincial Council now has 123 Members, comprised of 50 Elected Members, 33 Ex-officio Members and 40 Section Chair­ persons. In defeating the pro­ posal Council felt the move would minimize and downplay Sections. Section Co-ordinator, Wendy Baker, noted that thp 40 Sections in the Province have 2,600 Members enrolled.

Provincial Council has also directed that the Branch Budget should not support Sections when no meetings are held dur­ ing the Section Year, when dur­ ing two successive years the number of meetings held are fewer than three, or when the number of Minutes produced for circulation in any year is fewer than the number of meetings per year.

Law Foundation After much research and plan­ ning, the Law Foundation has revealed to selected agencies that receive annual core funding a proposal for multi-year fund­ ing. The intent of the plan is to create a stable funding base allowing these agencies to plan

delivery of their programs over a three year period.

The new policy will not be mandatory and those agencies who do not wish to adopt a three-year funding plan will be able to apply to the Law Foun­ dation for an exemption.

Agencies that receive three-yea funding will be required to report on an annual basis to the Law Foundation. The Founda-i tion recognizes that emergencie can arise under any three-year plan. The Foundation will alio' applications for interim fundinj should some unforeseen circumstance happen requiring the agency to seek additional funding.

Winter Convention Members will have received registration material for the Winter Convention of the B.C. Branch to be held February 1012,1989, at the Harbour Tower: Hotel in Victoria. The planning committee under the chairman­ ship of Barry Browning has designed an exciting package o; events.

Highlighting the serious side of the program will be a detailed review and discussion of the recommendations of the Justice Reform Committee (Hughes Report) and special seminars or legal concerns of the elderly, preparing your client for trial ir a civil action, Stress and Time Management, Personal Property Security Act, agreements and pension rights in a multiple mai riage environment, the individuallawyer's estate, and a choice of special workshops.

The Winter Convention is also presenting special programs for guests ana cnildren. The social side will not be overlooked and advance publicity on the event indicates that our hosts in Victo ria promise that there is life afte dark.

Register early as space may be limited. If you have lost your registration form, get in touch with the B.C. Branch office.

S ectionTXlk eral practitioner or specialist, whether the patient nad been seen and how many times. Sec­ tion members were advised to use statutory affidavits to put evidence before the Review Board and the Commissioners because of the frequency with which advocates are able to get away with making allegations of fact. Further, section members were reminded that although the Review Board rarely issues sub­ poenas for witnesses and docu­ ments they certainly have the power to do so.

Shelley Bentley SectionTalk is written by Shelley Bentley of North Vancouver.

Shelley was also the author of the “Section Update” which was a regular feature of the B.C. Branch news in the Advocate.

Comments on the presentation and evaluation of evidence to the Workers' Compensation Review Board In the Workers' Compensation section Craig Paterson expressed concerns about the manner in which the WC Review Board assesses and weighs evidence.

Mr. Paterson alleged that the Review Board made few dis­ tinctions between types of evi­ dence and the weight to be given to it; that is, between first and second hand evidence, contem­ poraneous evidence and other types of evidence. He stated that the Review Board treated all medical evidence the same regardless of whether the worker had been seen by a gen­

Attempts to catch a witness in a prior inconsistent statement should never be used frivolously Rick Sugden and Rick Twining advisecTCivil Litigation Section members that catching a witness in a prior inconsistent statement is very persuasive, but if it fails the witness' credibility may be enhanced. The following sug­ gestions were offered: 1. Take the time to tie down the witness as to his or her pre­ sent statement in a way which contradicts the earlier statement; 2. Either be sure or do not embark upon the exercise; 3. In cross-examination repeat the evidence the witness has given in direct examination.

Nail the witness down. This will also remind the Judge.

4. Proceed in a way which illustrates the inconsistency to the Judge; 5.

Do not jump the gun;

6. Be fair and flexible; give the witness a chance to explain his or her answers; 7. Put the assertion to the witness and let him or her deny it; then put the prior inconsistent statement (for example, from the examination for discovery transcript) to the witness.

Chief Judge of the Provincial Court of B.C. asks Bar for workable alternative to the Preliminary Inquiry Judge Josephson, Chief Judge of the Provincial Court of B.C., indicated to Criminal Justice Section members that the pre­ sent form of preliminary inquiry would not remain. His Honour discussed the concept of disclo­ sure by prosecution and the experiment in the Montreal courts which has become known as the Montreal Model. Briefly, this Model is set up as follows: 1.

first appearance;

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date for pre-trial hearing;

3. counsel meet on date of pre-trial hearing in a room where disclosure is made; plea bargaining takes place; admissions are discussed; waiver of the preliminary inquiry or consent committal or partial waiver is discussed; ways in which the preliminary inquiry can be restricted to certain witnesses and certain issues are discussed; time estimates are made; 4. an appearance is made before the Judge who reviews counsel's agreement and there is then a guilty plea or a date is fixed for a preliminary hearing or a trial.

His Honour commented that through proper use of pre-trial hearings, under s. 553.1(1) in non-jury trials with the consent of the parties, a number of issues can be resolved easily. Whether the Montreal Model would work depends much on the co­ operation of the Bench and the Bar.

Ottawa Report You will find enclosed with this issue of BarTalk a sample copy of the Ottawa Report, a bi-monthly production of CBA Communications which is normally distributed to members of Council only. Your B.C. Branch Executive are giving consideration to distributing copies of each issue of the Ottawa Report to all B.C. members if there is sufficient interest and, therefore, we would like to hear from you.

Please address your comments: Robert Smethurst Executive Director B.C. Branch The Canadian Bar Association 504 - 1148 Hornby Street Vancouver, B.C. V6Z2C3

New legislation covering liability under the personal covenant in an assumed mortgage UVic Professor Waldron addressed this topic at length in a recent Victoria Real Property section meeting. She noted the familiar predicament in law of a vendor who allows his or her mortgage to be assumed by a purchaser and later is held liable under his or her personal covenant in the mortgage when the purchaser defaults.

Although in some jurisdictions the vendor's exposed position has been alleviated by legisla­ tion, in B.C. the vendor is still very vulnerable unless the Courts find a “novation” has occurred. Bill 27, an amendment to the Property Law Act which was proclaimed in force on December 1st, 1988, attempts to resolve the unsatisfactory state of the law, especially in regard to residential property. Under this amendment the original mortgagor will be released from his or her personal covenant in the following circumstances: 1. if the mortgagee, upon request, approves the purchaser to assume the mortgage, such request not to be unreasonably refused, or failing such approval; 2. if the mortgage is for a term, unless a demand for pay­ ment of the sum secured is made within 3 months of the existing term having expired; or 3. if the mortgage is payable on demand, unless a demand is made within 3 months of the mortgagee receiving written notice of the transfer of the property.

Enforceability of discretionary “Subjei to” clauses in Purcha Contracts In Griffin v. Martens (1988), 27 B.C.L.R. (2d) 152 the B.C.C.A. considered whether a clause ii purchase contract making the purchase “subject to the pur­ chaser being able to arrange s< isfactory financing” made the contract void for uncertainty.

The Court concluded that this, clause meant “satisfactory to a reasonable person with all the subjective but reasonable stan­ dards of the particular pur­ chaser” and best expressed the actual intention of the parties.'

The commitment of the pur­ chaser to use his best efforts to obtain the financing was retained. UVic Professor Waldron discussed this recent case in light of the B.C. Supren Court decisions in Chan v. Hay ward and Pietrobon v. McIntyre the Victoria Real Property sec­ tion meeting and concluded th although Griffin did not expressly overrule the latter decisions she felt that they cou hardly stand in the face of the B.C.C.A. decision.

Legislative Update

Regulations to Note 1. Land Title Act, B.C. Reg. 334/79, is amended, inter alia, to provide a new fee struc­ ture for searches - eff. Dec. 5/88.

2. Liquor Control and Licensing Act, B.C. Reg. 608/76, is amended, inter alia, providing new fees and changing provi­ sions respecting licensing appli­ cations and advertising eff. Oct. 28/88; providing new licensing regulations re hotels - eff. Dec. 16/88.

Bonita J. Thompson This column will provide you, the practitioner, with informa­ tion about recent legislative and regulatory enactments of the Government of British Columbia of general interest which might affect the affairs of your clients.

This timely update is possible because of the co-operative efforts of officials from Legisla­ tive Counsel's office in the Min­ istry of Attorney General.

The Office of Legislative Coun­ sel has always been very respon­ sive to advice from the Bar tnat certain provisions in B.C. legis­ lation or regulations are unclear, ambiguous or out of date. If you have come across such an anomaly, please send your comments to the Legislation and Law Reform Committee, B.C. Branch of the Canadian Bar Association, c /o Bonita J. Thompson, Singleton Urquhart, 1200 - 1125 Howe Street, Vancouver, B.C., V6Z 2K8, and they will be forwarded to Victoria.

From time to time, under a pro­ tocol reached with the Ministry of Attorney General, draft legis­ lation and regulations are for­ warded to this Committee for comment by legal experts in the Bar. If you have developed an expertise in a particular sub­ stantive area of law or legislative framework and would be inter­ ested in participating in such analysis, please contact the Committee as advised above.

Please keep in mind that these legislative reviews are usually conducted over a very brief period of time with little or no advance notice.

3. International Financial Busi­ ness (Tax Refund) Act, B.C. Reg. 440/88, is enacted regulat­ ing the manner of becoming a registered financial institution under the Act and becoming eliible for tax refunds - eff. Nov.

f/ 88 .

4. International Financial Busi­ ness Act, B.C. Reg. 439/88, is enacted providing the require­ ments for becoming registered under the Act - eff. Nov. 4/88.

5. Small Business Venture Capital Act, B.C. Reg. 304/85, is substantially amended - eff.

Nov. 10/88.

6. Credit Union Act, B.C. Reg. 221/82, is amended by adding a section allowing a credit union to invest in an insurance agency in certain con­ ditions - eff. Nov. 10/88.

Legislation to Note 1. International Finance Busi­ ness (Tax Refund) Act - in force Oct. 31/88.

2. International Finance Busi­ ness Act - in force - Oct. 31/88.

3. Liquor Control and Licensing Amendment Act, 1988 - ss. 1 to 7, 9 to 13,17 to 28,30 to 34,36 and 37 and s. 35, except that portion which enacts s. 84(2)(k) of the Liquor Control and Licensing Act, R.S.B.C. 1979, c. 237 - in force Oct. 28/88.

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Small Business Venture Capi­ tal Amendment Act, 1988 - in force - Nov. 10/88.

Access to Government databases Daniel Steinberg of Vancouver has been appointed to chair a new special committee establishecf by Provincial Council to work with B.C. Services Corpo­ ration and the owner-ministries to develop cost effective and convenient electronic access to B.C. Registry and other suitable data by members of the public generally, and the legal profes­ sion in particular.

In his first report to the Branch Executive, Steinberg stated that one mandate of the committee is to ensure reasonable and uni­ form access by the legal profes­ sion to Provincial Government Databases. The Committee will maintain liaison with the Court Services Committee of the B.C. Branch and a special committee considering the implication of technological developments in the provision of Court Services.

The Branch Committee will also maintain liaison with the Gov­ ernment Task Force considering access to Government Databases.

Court Services Technology Committee Provincial Council of the B.C. Branch has established a special committee to consider the impli­ cations of technological devel­ opments in the provision of court services in the province.

A resolution passed by Provin­ cial Council said the committee's mandate is “to recommend from time to time legislative and rule amendments aimed at assuring that the advantages of techno­ logical development may be obtained in the provision of court services, consistent with the best interest of the public and with the requirements of practice.”

The committee is expected to be comprised of members appointed by the Branch Execu­ tive, the Court Services Com­ mittee, the Court Services

Branch of the Ministry of Attor­ ney General, the Law Society of B.C., the Attorney General's Rules Committee and Local and County Bar Presidents.

a copy of either report at a cost of $100.00 each or $150.00 for a copy of both reports. For infor­ mation, get in touch with the B.C. Branch Office.

Reproductive Technology

Membership and services directory

Vancouver lawyer Janice Dillon, Assistant Clinic Professor on the Faculty of Medicine of the Uni­ versity of British Columbia is chairing a special committee of the B.C. Branch examining the legal and moral issues sur­ rounding reproductive technology.

The first edition of the new Directory received strong sup­ port from the membership.

Over 7,500 copies have been sold.

The committee has been given broad terms of reference to co­ operate with similar groups elsewhere in Canada and to liaise with interested groups such as the medical profession in B.C. The committee plans to report in time for die Annual Meeting of the Branch in June, 1989.

Other committee members include Dr. Sydney Segal, a well know Vancouver Paediatrician, Dr. Christo Zouves of the in vitro fertilization clinic at U.B.C. Health Sciences Centre, Profes­ sor Lynn Smith of U.B.C.'s Fac­ ulty of Law and Vancouver Family Law Lawyers Karen Nordlinger and Georges Goyer.

Survey reports now available On an annual basis, the B.C. Branch and the Vancouver Asso­ ciation of Legal Administrators conducts surveys of law firm support staff salaries and hourly rates of lawyers and legal assistants.

The last survey was done in the fall of 1988 and the reports of both surveys are now available.

Law firms that participated in the survey and paid a fee of $20.00 for a copy of one report, or $30.00 for both, have now been mailed their copies.

Law firms that did not partici­ pate in this survey may purchase

Additional copies are still available and may be ordered from the Branch office for $12.00 each plus postage or delivery of $2.00 each.

Many members have written to the Branch office to express their appreciation for the Directory.

Tne Executive Director Robert Smethurst predicts that the first edition will earn a modest profit for the B.C. Branch.

Order forms are now being pre­ pared for the next edition wnich will bepublished in September, 1989. Tne forms will be mailed to the membership shortly.

Law Week 1989 David Winkler of Vancouver is chairing the planning committee for Law Weelc 1989. Law Week activities this year will begin on Sunday, April 16. While most events take place in the Lower Mainland, there has been a concerted effort over the past number of years to expand Law Week activities throughout the province.

Many local and County Bar Associations present local programs. The Law Week planning committee is anxious to hear from local and County Bar Associations to assist in co­ ordinating their Law Week activities. For suggestions and assistance in developing a local rogram the local and County ar Associations are requested to get in touch with David Winkler, Ministry of Attorney General, 602 - 865 Hornby Street, Vancouver, B.C., V6Z 2H4.

Product of the month Each month we plan to feature one or two suppliers of produ< or services of particular interes to the legal profession. Their participation will greatly help to defray the costs of distribut­ ing this newsletter. We ask yo to give earnest consideration o their offerings.

I This month we are pleased to feature “Unibind”, a lightweig compact, easy to use system oi binding. Our Branch office ha now been using Unibind for oi Section Papers for several months and we are pleased wi the professional looking result

B.C. Dates Unless otherwise indicated, th contact is the B.C. Branch offic February 10,1989 B.C. Branch, C.B.A. Provincial Council Harbour Towers, Victoria February 10-12,1989 B.C. Branch, C.B.A. Winter Convention Harbour Towers, Victoria February 17-18,1989 Mid-Winter Meeting Kootenay Bar Association Kimberley, B.C. [ Contact: Robert Apps, 427-22; f April 8,1989 B.C. Branch, C.B.A. Provincial Council Law Courts Inn, Vancouver

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May 12 - 14,1989 Cariboo Bar Annual Conventic j Esther's Inn, Prince George E June 23,1989 B.C. Branch, C.B.A. Annual Meeting Meridien Hotel, Vancouver

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June 23,1989 B.C. Branch, C.B.A. Provincial Council Meridien Hotel, Vancouver

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June 24,1989 Law Society of B.C. Annual Meeting Meridien Hotel, Vancouver

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