BarTalk | February 1992

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NEWSLETTER Law Week ’92 activities bFTHE CANADIAN BAR Twenty-four locations through­ ASSOCIATION, out B.C. will host a wide variety B.C. BRANCH of Law Day activities during the

set for April throughout British C o lu m b ia ^

month of April.

Grade 3 students will bring Peter Pan to trial in a new mock trial created by teacher H eather Gascoigne, lawyers will again visit FEBRUARY 1992 classrooms throughout the prov­ ince and open houses at many courthouses in B.C. will feature VOLUME 4 presentations and displays.

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HIGHLIGHTS MEMBER PROFILE: BOWDEN/2

SECTIONTALK/3 LEGISLATIVE UPDATE/5

The Vancouver Law Courts at 800 Smithe and Provincial Court at 222 Main will be the sites of open houses on Sunday, April 26, 1992. Shuttle buses will run be­ tween the two locations. A spe­ cial thank you is extended to the Vancouver Bar Association for their generous financial contri­ bution in support of Law Day programs.

Law Day Chair Lynn McBride, a lawyer with Harper Grey Easton,

His Honour Judge Ross Tweedale presides over grade 3/4 students from Macdonald Elementary School who performed the mock trial Regina v. The W olf at Provincial Court Law Day '91. is extremely busy marshalling committees and hundreds of vol­ unteers who make Law Day hap­ pen. This year the theme of Law

Week is “Access to Justice — The Charter Ten Years After."

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Legal aid resolutions, constitutional proposals focus of Council meeting

At its Feb. 1,1992 meeting, Pro­ vincial Council approved three resolutions directed at legal aid CALL FOR NOMINATIONS/8 delivery.

The first resolution urges the provincial government to en­ NEW hance family legal aid services ASSOCIATION/10 through the private Bar. This resolution states the opinion that this increase is necessary as READERS the present family legal aid tar­ REACT/12 iff fails to provide many clients with the choice of counsel, qual­ ity legal assistance and urgent assistance to secure safety and

support for themselves and their children.

The second resolution recom­ mends no reduction to govern­ ment legal aid funding in the next fiscal year. This recom­ mendation is forwarded beause of concerns that suggested changes to the legal aid delivery system would not result in cost savings in the next fiscal year.

As well, the Bar is prepared to cooperate with the government to address the costs of legal aid services.

The third resolution recom­ mends that no change be made to the present system of deliver­ ing legal aid services through the private Bar without thor­ ough study and consultation.

The resolution states that aside from the need for enhancement of the family legal aid services, the present delivery system through private counsel is the best way to maintain the client's choice of counsel and to assure quality service to clients.

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Nominate a colleague tor this new BarTalk column

CBA member making a difference: Greg Bowden of Directors of Continuing Legal Education Society of B.C. and member of Provincial Council of the B.C. Branch of the Canadian Bar Association.

Bowden said the governors used foresight when they decided in 1990 to establish a stabilization fund during the good times to draw on in hard times.

Dramatically lower interest rates may be encouraging to first-time home buyers, but there is a downside to reduced rates. The Law Foundation of B.C.’s income from lawyers' pooled trust ac­ counts plunged by 26 per cent in 1991.

Greg Bowden, the newly elected chairman of the Law Foundation's Board of Governors, says the drop in income is a direct result of the lower prime rate charged by the major banks. The recent prime has been 7.5 per cent and interest on pooled trust accounts is earned at an average of prime minus 4.5 per cent, giving the Foundation an effective yield of only 3.0 per cent.

Bowden considers the current level of interest rates and the ad­ verse affect on Foundation in­ come as the most challenging as­ pect of his first year of office.

However, Bowden's impressive list of volunteer service to the profession emphasizes the broad range of experience Bowden will bring to the Law Foundation as its chairperson.

Bowden has served as a governor of the Law Foundation of B.C., Governor and Member of the Executive Committee of the Ca­ nadian Tax Foundation, ViceChairman of the National Finance Review Committee of the Cana­ dian Bar Association, Past Chair­ man of the Tax Section of B.C. Branch of the Canadian Bar Asso­ ciation, former member of Board

"For the first time, we are dipping into this fund to maintain the level of continuing grants to the organizations that require on­ going funding to provide serv­ ices to the public," he said. "Ob­ viously, we can’t keep this up forever."

"Greg combines a senses of pub­ lic service with a rigourous busi­ ness like approach. He is well suited to the challenges the Law Foundation must meet in the cur­ rent economic uncertainity," said Brian Wallace, QC, Deputy Treas­ urer of the Law Society of B.C. and a partner with Bowden in the firm Lawson Lundell Lawson & McIntosh Bowden was called to the Bar in B.C. in 1971 and Alberta in 1974.

He continues to share his exper tise as an adjunct professor in th< field of taxation law at the UBC ■faculty of law for 10 years. A: well, he is a program coordinato; and lecturer with the Continuing Legal Education Society and the Canadian Tax Foundation.

Bowden also is an active membei in the community including Presi dent of Vancouver Pacific Swiir Club, former member of the Boarc of Directors of the UBC Alumn Association, and past Presiden of the Arbutus Club of Vancou

Members making a difference; you can assist in selection!

We want you to help us identify the "unsung heroes" of the pro­ fession who we can profile in this new column. "Unsung" is a broad term but we're looking for individuals who are "mak­ ing a difference" through their service within the profession or in community organizations.

Call Larry Hnetka at the B.C. Branch office (687-3404) for a nomination form. Nominations are reviewed and members tobe rofiled are selected by the Baralk editorial committee.

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Local Law Day organizers planning now

cont'd from page 1

Further Law Day inform ation will be announced in the next issue of BarTalk, but if you are interested in participating in your local Law Day program , contact the follow ing organizers directly: Chilliw ack.................................................................Sheila Checkers (795-8340) Courtenay.......................................................................... James Dow (338-7701) Duncan................................................................................. Dave Pope (746-4422) Fort St. Jo h n ................................................................... Michael Gray (785-5674) Kamloops/Clinton....................................................Meegan Clemis (828-4662) Kelowna........................................................................ Ross Langford (763-4323) Maple R idge.......................................................................Ann Rurak (463-6251) M erritt................................................................................Phil Maher (374-3344) N anaim o...................................................................Katherine Fraser (754-3321) N elson..........................................................................Ernie Armitage (352-5538) New W estminster.................................................... Margaret Hollis (526-1821) Penticton...................................................................Gordon Marshall (492-6100 Prince George/Nazko Reserve/Quesnel/Vanderhoof/ Prince R u p ert..................................................................Judy Jones (565-6258) Surrey.......................................................................... Janice Itterman (572-2276) Tumbler R idge............................................................ Gary Boechler (242-4227) Vancouver.....................................................................Lynn McBride (687-0411) V em o n ..........................................................................Dale Kermode (542-5353) V ictoria............................................................................ John Coupar (388-6631) Williams L ake......................................................... Sandra Hawkins (392-4158)

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S ection TXlk Interim FRA applications for sale of the matrimonial home; which ones succeed?

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CD 5 CC Shelley Bentley

Advisory Committee formed A Land Title Practice Advisory Committee has been formed by Malcolm McAvity, the Director of Land Titles, and is composed of the members of the current Canadian Bar Association (B.C. Branch) Real Property Section Executive, the Registrar of the New Westminster/Vancouver Land Title Offices, and the Di­ rector of Land Titles.

One of the main purposes of this Committee is to resolve Land Title Office problems which cannot be resolved to the satisfaction of an individual af­ ter discussions with the Land Title Office staff and registrars.

Any member may refer a prob­ lem to the committee by send­ ing a written statement to one of the members of the Execu­ tive. The problem should be stated in generic terms. Names and file references will not be disclosed unless the person sub­ mitting the matter has specifi­ cally authorized the release of this information. The Commit­ tee will meet every second month on the Wednesday fol­ lowing the monthly meeting of the Vancouver Real Estate Sub­ section.

Vancouver Family Section members discussed their expe­ riences in obtaining orders for sale of the matrimonial home upon interim application in light of the year old decision of Bodo v. Bodo 25 R. F. L. 3d 295.

The Bodo case concerned an in­ terim application in an FRA ac­ tion for an order for sale of the matrimonial home.

In this case the property was held in joint tenancy, there were no children, and the husband in possession had an arguable case for unequal division. Robert DeBou, counsel for the appli­ cant, explained to section mem­ bers that the application had been brought because of the in­ transigence of the husband in efforts to negotiate a settlement without trial. He brought on the application pursuant to sec­ tion 52 of the FRA, the Partition of Property Act and Rule 43, in view of the doubt over the basis for such an application. DeBou reported that the Court was cognizant of the expedience of the application, within the con­ text of the proceedings, and the particular circumstances of the separation of the parties. The application was granted, the court holding that Rule 43 gives the court broad powers to dis­ tribute matrimonial property including an Order for Sale, even when the ultimate division of property is at issue.

Section members discussed their experiences in applying the Bodo decision in the last year. Varying degrees of suc­ cess were reported. It has not been applied successfully where a trial date is near, nor where the party in possession has the

ability to buy out the other party. It would seem that the Courts are now moving away from the comments of Madame Justice Huddart in Bodo re­ garding the application of sec­ tion 52 of the FRA to distribu­ tion of assets upon an interim application. However, the case had been applied where the parties had substantial debts and the party not in possession of the property was on welfare; and also where the proceeds of sale could be used to support the children of the marriage, and where the party in posses­ sion was unable to buy out the other.

Property purchase tax on GST Lisa Vogt of McCarthy Tetrault informed Vancouver Real Es­ tate Section members of the Ministry of Finance policy with respect to collection of Property Purchase Tax where the pur­ chase price is inclusive of G.S.T. If neither the Purchase Contract nor the Statement of Adjust­ ments breaks down the pur­ chase price into the property purchase price and G.S.T. por­ tions, then Property Purchase Tax will be payable on the G.S.T. inclusive price. Practi­ tioners are therefore advised to specify the G.S.T. portion sepa­ rately on the Statement of Ad­ justments.

Advice for drafting condi­ tions precedent in real es­ tate purchase contracts Catherine Esson and Peter Watts provided Vancouver Real Estate Section members with advice on drafting conditions precedent in real estate pur­ chase contracts in light of the recent unreported case of Tau

SectionTalk (continued) Holdings Ltd. v. Alderbridge De­ velopment Corporation (CA012185 Vancouver Registry, October 23,1991).

In this case, the parties had en­ tered into a written contract for the sale of commercial prop­ erty. The contract provided for three deposits to be paid on the occurrence of three specified events. The purchaser paid the first one but did not pay the other two. The vendor pur­ ported to terminate the contract for failure to pay one of the de­ posits. A few hours later the purchaser purported to termi­ nate the contract because cer­ tain conditions precedent had not been met. The case went to the Supreme Court on a Rule 18 Application. The Purchaser ap­ pealed the Supreme Court's de­ cision.

By the time of the appeal, two other cases — Kitsilano Enter­ prises Ltd. v .G & A. Develop­ ments et al., and Mark 7 Develop­ ment Ltd. v. Peace Holdings Ltd. — had been handed down and the central issue had become whether there was a binding contract before the conditions precedent were satisfied or whether there was merely an offer.

One of the key conditions prec­ edent read as follows: "8.1 The Purchaser's obligation to complete the transactions con­ templated by this offer is subject to the following conditions: a) The vendor shall provide to the Purchaser within five days of the date of this offer and the Pur­ chaser shall have approved by November 30th, 1989 an engi­ neering, soils and traffic reports in respect of the Lands and shall have obtained financing; These conditions are for the sole and exclusive benefi t of the Purchaser, if not satisfied, may be waived in whole or in par t by the Purchaser.

If the condition set out in subsec­

tion 8 .1 (a) has not been satisfied by the time therein specified, the Purchaser shall by notice in writ­ ing to the Vendor, at the Purchas­ er's option, either waive such condition and complete the pur­ chase of the Property or elect not to complete. In the latter event, the Purchaser shall be entitled to a refund of the Deposits paid to such date and accrued interest and this Agreement shall be of no further force and effect and nei­ ther party shall have any further obligation hereunder to the other."

It is notable that there was nei­ ther a standard set out for ap­ proval of the reports and for obtaining financing nor a provi­ sion that the Purchaser could be arbitrary in deciding whether to approve the reports and accept financing.

The contract also provided that: " 2 1 .1 .... and upon acceptance of this offer shall become a binding agreement for the purchase and sale of the property..."

In addition, the contract im­ posed obligations on the parties which arose upon the signing by the purchaser.

The purchaser argued that there was only an offer until removal of the conditions precedent be­ cause the conditions precedent were completely subjective.

Although this argument had been successful in the Mark 7 and Kitsilano cases it was not successful in this case. The Court distinguished the Mark 7 case in two ways. First, in the Mark 7 case the condition prec­ edent was entirely subjective and it was particularly specified that the purchaser could be ar­ bitrary in deciding whether to accept the leases. Second, in this situation, clause 2 1 . 1 spe­ cifically excludes the possibility that the offer, once accepted, could continue as an offer, and

not become a binding agree­ ment.

Ms. Esson and Mr. Watts noted I that it may have been relevant j to the Court's determination that these were sophisticated parties, both of whom had legal I advice before entering into the I contract which the court noted was "fifteen pages of careful le- I gal text". In addition there was, I evidence that the parties in­ tended to be bound and thought they were bound. The test applied in this case to de­ termine whether a binding con­ tract had been formed was the same as in earlier cases. Wherei there is a condition precedent which is manifestly dependent 1 upon the subjective state of mind of the purchaser, it pre­ cludes the formation of a bind- I ing contract. The trick is to de- H termine when conditions prec- 1 edent which contain no explicit standard, as was the case here, are subjective and when an im­ plied term of reasonableness will be imposed.

In this case the Court seems to be saying that where the contract taken as a whole is structured as a binding agreement from the time of acceptance, and particu­ larly where the contract states that it is binding from the time of acceptance, the Court will try to give effect to this by implying terms where necessary. Practi­ tioners are cautioned that if a client wants an escape clause the resultingagreementmaybenothing more than a standing offer by the vendor which could be re­ voked by the vendor with notice to the purchaser. If an agreement must include a wide open condi­ tion precedent it should be con­ verted to an option by providing that some payment will be re­ tained by the vendor even if the subject is not removed and the contract does not proceed.

L eqislatweUpdm e Every effort is made to ensure the accuracy of the information provided to you in this article but the information should not be relied upon. Lawyers should refer to the specific legislative or regulatory provision.

Regulations to Note Evidence Act, B.C. Reg 18/92, the Commissioner Designa­ tion Regulation is made designating Provincial constables and Municipal constables who hold the rank of corporal or higher or who occupy the position of detachment com­ mander on a permanent or acting basis as commissioners for taking affidavits for British Columbia.

Ann McLean

effectiv e Jan u ary 28,1992

M otor Vehicle Act, B.C. Reg 26/58, the Motor Vehicle Act Regulations are amended in Division (7), section 7.05, by adding subsections (8 ) and (9) which prohibit a person from driving or operating a motor vehicle on a highway which has placed on the windshield or another window any material that reduces the light transmitted through the window with certain prescribed exceptions.

B.C. R eg 21/92 effectiv e Jan u ary 31,1992

Court Rules Act, B.C. Reg 221/90, the Supreme Court Rules are amended inter alia (a) as to Rule 14 (1), adding paragraphs (e) and (f), providing that an appearance may be entered by fax.

An appearance received by fax after 4:00 p.m. is deemed to be filed on the following business day, (b) as to Rule 18A (3) and (4) and Rule 40 (1), permit­ ting the use of answers to interrogatories and exami­ nation for discovery evidence on summary trial ap­ plications. Notice must be given of the answers to interrogatories or evidence taken upon an examina­ tion for discovery on which a party seeks to rely, (c) as to Rule 19 (9), differentiating between an objec­ tion in point of law and pleading a conclusion of law and providing that a party may raise in a pleading an objection in point of law and that conclusions of law may be pleaded only if the material facts supporting them are pleaded, (d) by adding Rule 32A entitled Court Appointed Experts, and amending Rule 52 (11) (c), allowing the court on application or on its own initiative to ap­ point one or more independent experts to inquire into and report on any relevant questions of fact or opinion and setting out the rules for appointment, di­ rections, remuneration and reporting, (e) as to Rule 40 (2) (a), clarifying that evidence given on examination for discovery by one defendant may not be used against another defendant, but only against the adverse party who was examined, or

whose representative was examined pursuant to Rule 27 (4) to (12), (0 as to Rule 57 (13), adding paragraph (b) which allows the court, on application or by consent to fix a lump sum as die costs of a motion, (g) as to Rule 57 (29), extending the notice pe­ riod of an assessment for costs from 2 days to 5 days, (h) as to Rule 57 (32) and Appendix A, Form Certificate of Costs, allowing the registrar to issue a certificate of costs when the parties have consented to the amount, but no assess­ ment has been made, 68,

(i) as to Form 1, Writ of Summons, and Form 3, Petition to the Court, prescribing new forms, (j) as to Appendix A Form 37, Trial Certifi­ cate, adding the place of trial, (k) as to Appendix B Section 2, adding sub­ section 5, allowing the registrar to fix the scale of costs where costs may be assessed without order or agreement, (1) as to Appendix B Section 4, adding sub­ section 4, permitting the registrar to allow units for preparation for an activity that does not take place or is adjourned, (m) as to Appendix B, adding Section 9, which gives the registrar discretion in deter­ mining costs where two or more actions have been tried together, (n) as to Appendix B, adding Section 10 and Appendix A, adding Form 118, Offer to Settle Costs, allowing a party to make an offer to settle costs, and providing that a party who Please turn to page 6

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Rules Revision Committee seeks broad input to proposed changes The Attorney General has established the Rules Revision Committee and appoints members who consider and make recommendations for changes to the British Columbia Supreme Court Rules such as those which were enacted by regulation on January 21,1992.

Suggestions for potential Rule changes come from a number of sources, but primarily lawyers, judges, Court Services Branch of the Ministry of the Attorney General and the Law Reform Commission.

The Committee meets for a full day six or seven times a year. It has been particularly active over the past few years dealing with proposals emanating from the Access to Justice Report (1989) of the Justice Reform Committee chaired by Ted Hughes, QC. One of its current projects relates to changes to the law with respect to expert reports and evidence.

Mr. Justice Catliff, who chairs the committee, states that a major concern of the Committee is obtaining as wide an input as possible into proposed changes.

The committee also wants to ensure that the legal profession knows well in advance about possible changes that might occur, as well as when those changes will actually come into force.

One of the problems which the Ministry of the Attorney General is attempting to correct is the delay in issuing the looseleaf amendments to tire Rules.

To advise the profession of proposed changes and that changes have come into effect, the Committee uses the Law Society's Benchers' Bulletin. Mr. Justice Catliff emphasized that no proposal of substance is considered without its being disseminated through the Benchers' Bulletin. This process has led to useful comments

from members of the Bar. Changes to the Rules are reported in the Legislative Update section of BarTalk after they are enacted by regulation.

Under the Court Rules Act, no change in the Rules can be made without the Attorney General first consulting the Chief Justice. The Chief Justice's law clerk attends the Committee meetings and provides legal research to the Committee as and when required.

The Honourable Mr. Justice Catliff chairs the committee whose members are currently Justices Allan, Finch, Fraser and Prowse; Masters Horn and Kirkpatrick; lawyers Robert Guile, Malcolm Macaulay, Allison McClennan and Robert Porter; and Brian Greer, the acting Chief Legislative Counsel for the Ministry of the Attorney General.

Reports Available The Legislation and Law Reform Committee has received copies of the following reports from the British Columbia government and others. Infor-

mation may be obtained from Ann McLean, the Branch's Legislation and Law Reform Officer, in Victoria (370-2234), or from the applicable source.

Report A Land Use Planning System for British Columbia.

Source The Forest Resources Commission (356-7885)

Old Growth Strategy Discussion Paper

Forest Services Offices throughout B.C.; Ministry of Forests, (Warren Mitchell - 356-9837)

Revising British Columbia's Waste Discharge Permit Fee System: A Discussion Paper

Ministry of Environment, Lands & ParksEnvironmental Protection Division (356-9819)

Legislative Update (continued) does not accept a reasonable offer may be penalized, (o) as to the Tariff in Appendix B, several items, clarifying and increasing or decreas足 ing the number of units provided for, and

(p) as to Appendix C Schedule 3, Fees Payable to Witness, providing that fees payable to wit足 nesses are payable in advance by the party re足 quiring attendance.

B.C. R eg 10/92 effectiv e M arch 2,1992

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New York lawyers drop into Computer Law Section electronic meeting An experimental format in sec­ tion meetings has potential to break geographical barriers, ac­ cording to accounts of a recent meeting of the B.C. Branch Computer Law Section.

The Dec. 18,1991 meeting of the Computer Law Section was held on CompuServe, a public network, and members commu­ nicated with each other on key­ boards through a network of

Assessment authority database access from your office British Columbia Assessment Authority (BCAA) information, normally available to the pub­ lic, will be electronically avail­ able to the business community via the provincial government's BC OnLine information service effective March 2,1992.

For lawyers, realtors, land sur­ veyors, and appraisers in B.C. this will save time and money by allowing them to conven­ iently access the Assessment Authority database directly from their offices.

They can now complete essen­ tial information searches 1 2 hours per day, six days per week, from 8 : 0 0 a.m. to 8 : 0 0 p.m.

BCAA's non-confidential infor­ mation includes up-to-date de­ tails on: real property owner­ ship, property address, legal description, Parcel Identifica­ tion Number (PID), land and building values, land use, Agri­ cultural Land Reserve Status, and property sale prices.

This information will be avail­ able in three different reports, depending on level of detail re­ quired. Access will be auto-

matically granted to BC OnLine customers currently authorized to access the Land Title Regis­ try. Pricing is yet to be deter­ mined.

The BC Assessment Authority is the provincial government corporation mandated to establish and maintain uniform real property assessments throughout British Columbia in accordance with the Assessment Act. BC OnLine is an electronic information service providing businesses and the public with access to electronically available provincial government informa­ tion. BC OnLine is a service of BC Systems Corporation, a provincial Crown corporation.

BC OnLine also provides elec­ tronic access to the Land Titles Registry, Personal Property Registry, Companies Registry, Rural Property Tax System and Property Purchase Tax Bulle­ tins.

For further information: Don Spears, Director, BC OnLine 1-800-663-6102 (outside Victo­ ria); 389-3232 (Victoria)

Examine corporate counsel’s new role To meet the new demands of the business world, corporate coun­ sel must provide more legal serv­ ices with fewer resources.

Success now depends on rising to the new role of corporate coun­ sel, developing a cost-effective delivery system and being able to

contribute to the management process. Register today for an intensive two day spring confer­ ence in Toronto on April 27/28, 1992. Complete registration in­ formation can be obtained by con­ tacting the Canadian Corporate Council Assoc., 20 Toronto St., Suite 300, Toronto M5C 2B8.

personal computers linked by telephones.

James D. Spears, section chair­ person, said that he was happy to see that some participants were from outside the Lower Mainland (in addition to two lawyers from New York State who dropped in) and hoped to see more Vancouver Island/In­ terior lawyers participate in the future.

Although the conversation was at times strained because many participants were learning the protocol, he said, those who at­ tended on line could make an instant record of everything that was said by all partici­ pants, eliminating the need for a recording secretary.

Can other sections benefit from the experiment? Spears said that anyone who has the skills to use QL or CanXLaw in legal searches from desk of firm li­ brary already has the equip­ ment and the skill to "attend" such a meeting.

While Spears personally prefers to hear a speaker in person, on short notice a modem can get you there fast. If the choice were a drive from Abbotsford or a flight from Kelowna, Prince George or elsewhere, he would rather pay approximately $ 1 0 an hour connect charges for the comforts of home.

For those wishing to organize meetings or ad-hoc discussion groups via computer and mo­ dem, directions on how to ar­ rive at the electronic meeting room can be found in the Com­ puter Law Section's Notice of Meeting for Dec. 18,1991. The detailed, fail-safe directions covered two single-spaced typed pages.

Call for nominations for B.C. Branch Provincial Council The deadline for filing nomina­ tions with the B.C. Branch for elec­ tion to Provincial Council is April 13, 1992. The same deadline ap­ plies for filing nominations for the office of President of the B.C. Branch. An additional 10 Council members have been added this year as the Branch membership

now exceeds7,000. Council will be comprised of 60 elected members, approximately one-third of this total will beelectedthisyear. Coun­ cil members are elected for a threeyear term and are eligible to be nominated for a second consecu­ tive term. In May 1992, election ballots will be sent to the entire B.C.

Provincial Council highlights (continued from page 1) Other matters discussed at the meeting included the approval of changes to the Branch mail­ ing list policy (see Page 10 of this issue for details), formation of a new Law Practice Management Section and dissolution of the Natural Resources (Oil, Mining and Gas) Section and creation of the Securities Section to bet­ ter reflect the activities of this Section.

Council also approved a resolu­ tion urging the government to enact the Law Reform Commis­ sion's recommendations for leg­ islative changes outlined in its report "Affidavits: Alternatives to Oaths" (A copy of the complete report is available from the Law Reform Commission.)

Native self-government panel gives Provincial Council views on Constitutional proposals Doug Sanders, Hugh Braker, and Geoffrey Plant provided Council members with their views on aboriginal self-govern­ ment as outlined in the current Constitutional proposals. B.C. Branch Vice-President Rob Gourlay moderated the panel.

The following are brief excerpts of some of the comments made by the panelists.

Sanders, a UBC law faculty

member, noted that he under­ stands the First Nations posi­ tion to be that aboriginal rights are inherent and not a grant or right to be delegated. He also indicated that it is difficult to define what structures and scopes of power would be in­ cluded in inherent rights. He concluded by saying that if we recognize the goals of aborigi­ nal self government, we can say the Charter can be interpreted with these aboriginal self-gov­ ernment goals in mind.

Braker, chair of the B.C. Branch Native Justice Section, opened with three common questions asked of him regarding this is­ sue and his response to these questions.

Question 1 is why can't we all be the same? His reply is that everyone is in Canada by choice; aboriginal peoples are not. Question 2 is why should natives be treated special and be given free housing and be exempt from taxes? He replied that these false, stereotypical as­ sumptions are indicative of gen­ eral misunderstandings of na­ tive persons in Canada. The third question is why do na­ tives want to rewrite history?

His reply was that aboriginal people cannot forget the past.

He cited examples of the resi­ dential schools, of being denied the right to vote until 1960, of being denied to legally run their own affairs. He added that

Branch membership. Election re-1 suits will be announced at the!

Branch Annual Meeting on June!

12,1992.

At the April 11, 1992 Provincial!

Council Meeting, Council will! nominate a member for the posi-| tion of B.C. Branch President fori the 1992/93 term. If no alternate I nominations for the office are re-1 ceived at the B.C. Branch office by I April 13,1992, then the nominee of 1 Council will be declared President-1 elect for the coming year. aboriginal peoples no longer want to administer another's "rules" but want to develop their own "rules" based on and I reflecting their own unique cul- I ture and values.

Plant, a lawyer with Russell & DuMoulin, prefaced his re­ marks by stating his expertise in this area has been in identifying aboriginal rights as cur­ rently protected in law. He noted that his fellow panelists had covered many of the major issues of this debate and for­ warded several questions for the members consideration.

Some of these include: What field of human activity encom­ pass the term self government?

What is the territorial extent of self-government rights? Where do non-status aboriginals fit and what rights would they have? Do we put limits on who is eligible to receive self-govemment rights? What is the effect on existing divisons of power if the intent of self government is to have a third order of government in Canada?

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He concluded his comments by I stating that aboriginal people have to have a continual role in constitutional reform and that the committee has to focus on specifics and not generalities.

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New Section chairs plan active programs for members The CBA (B.C. Branch) now supports 50 active sections with some 3,300 members registered to receive meeting notices and/ or minutes The following Sections have elected new chairpersons since the publication of the 1992 Di­ rectory. Please amend pages 27 and 28 o f your Directory accord­ ingly.

Native Justice Section Chairperson Hugh M. G. Braker Braker & Associates P.O. Box 1383 5000 Mission Road Port Alberni, B.C. V9Y 7M1 723-1993 FAX: 723-1994 Workers Compensation Chairperson Allan MacLean Schroeder, Pidgeon P.O. Box 12168

1119-808 Nelson Street Vancouver, B.C. V 6 Z 2H2 688-6737 FAX: 688-0271

9067 Church Street Langley, B.C. VOX 1J0 888-5811 FAX: 888-6565

The Alternate Dispute Resolu­ tion Section has elected a co­ chairperson to assist in devel­ oping programs of interest to mediation lawyers. The co­ chair of the ADR Section is: Jeanette A. Hermes P.O. Box 46196 Station "G" Vancouver, B.C. V 6 R 4G5 228-9993 FAX: 684-1543

Pensions and Benefits Carla Cousineau William M. Mercer Limited 1200-1040 West Georgia St. Vancouver, B.C. V 6 E 4H1 683-6761 FAX: 683-4639

Three new sections have been approved and chairpersons elected. These chairpersons in­ clude: General Practitioners (Lower Mainland) John Cherrington Nundal Cherrington Easingwood & Kearl P.O. Box 580

Law Practice Management J. Bruce Melville Melville & Young 580-625 Howe Street Vancouver, B.C. V 6 C 2T6 685-3881 FAX: 685-3992.

CBA members can register for these three new sections at a special pro-rated registration fee of $15 to receive notices and minutes or $5 to receive notices of meetings only. Please call Fran Hodgkins at the Branch of­ fice (687-3404) to request a sec­ tion registration form.

Common registry questions answered in new column Elizabeth Dunn, registrar, and Joanne Power, senior deputy in the Victoria registry, will launch a new BarTalk column beginning in March.

The column will be a selection of answers to questions fre­ quently asked of registrars.

Members of the Bar may con­ tact Power on any question re­ garding registry practice, proce­ dures or personnel in their area, as well as the area of Registrar practice itself.

legally trained Registrar in Brit­ ish Columbia. Her job is two­ fold: to conduct Registrar's hearings in Victoria (and else­ where if required) and to devel­ op and implement a training program for the District and Deputy District Registrars throughout the province.

Send your written questions di­ rectly to The Law Courts, 850 Burdett Avenue, Victoria, B.C. V 8 W 1B4.

Dunn worked as a newspaper and magazine reporter both on Vancouver Island and in New Zealand before attending the University of British Columbia law school. After graduating from Law School in 1978, she articled with Crease & Compa­ ny in Victoria and was called to the Bar in May 1979.

Elizabeth Dunn is now the only

She worked for Chief Justice Al-

R egistry Q uestions?

Elizabeth Dunn lan McEachern who at that time was Chief Justice of the Su­ preme Court. Dunn was ap­ pointed District Registrar in Vancouver in April 1984 and held that position until moving to Victoria in August 1991 to begin her new position.

Send your written questions directly to Joanne Power, senior deputy, The Law Courts, 850 Burdett Avenue, Victoria V8W 1B4.

10

Crown Counsel forms association su bm itted by R.D. M iller, President, B.C. Crown C ounsel A ssociation

Crown Counsel in this province banded together in August of last year and formed the British Columbia Crown Counsel Association.

There was an immediate and overwhelming response and within a very short period more than ninety-five percent of the province's prosecutors had joined the organization.

Right from the outset the Asso­ ciation had as its objective the obtaining of a contract between Crown Counsel (represented by the Association) and the gov­ ernment dealing with compen­ sation and working conditions.

That goal has now been given some specificity and now said to be "to negotiate on behalf of our members, directly with the government, an agreement, the terms of which would ensure a fair classification/compensation system, proper procedures for promotion based upon experi­ ence and merit, certainty of em­

ployment status, a proper re­ gime for part-time prosecutors, plus employment and pay eq­ uity."

A recent study done by the As­ sociation shows B.C. prose­ cutors to be the lowest paid in the country (for example, a prosecutor called 1 0 years re­ ceives an average salary of $92,000 p.a. in Ontario, $73,000 p.a. in Manitoba, and $58,000 p.a. in B.C.).

These inadequate pay levels are partly due to the fact that Crown counsel in B.C., unlike prosecutors anywhere else in Canada, are not classified as paid lawyers but rather as gov­ ernment managers. The gov­ ernment' s general neglect and abuse of its employees over the last decade has also contributed to this situation.

This unfair classification system and its accompanying woefully inadequate pay levels has lead to an exodus of middle and senior prosecutors (e.g., Jim Jardine, Q.C. and Jim Taylor, Q.C.).

Perhaps no area of the law is changing more quickly and be­ coming more complex than criminal law as it seeks to rede­ fine and redirect itself to re­ spond to the Canadian Charter of Rights and Freedoms. This in not the time for the Criminal Justice Branch to be losing what few senior people it has.

The new N.D.P. government has been informed of the prob­ lem and the Association's de­ sire to obtain a contract be­ tween it and the government.

Initial response seems positive but agreement has not yet been reached.

It is hoped by the Association that the government will soon sit down with representatives of the Association and negotiate an agreement (a "framework agreement") that will set out how the parties can arrive at a second agreement (a "collective agreement") that sets out the compensation to be paid Crown Counsel and their conditions of employment.

Member list and labels policy expanded The CBA (B.C. Branch) Executive has endorsed wider availability of the association's membership list.

evaluate all requests that we re­ ceive. The B.C. Branch is taking a low key' approach to promoting this availability as well," Smeth­ urst added.

"We've examined the issue close­ ly and came to the conclusion that with advancements in computer optical character readers (OCRs) that it is simple and inexpensive to recreate our membership list from our published Directory," said Robert Smethurst, Branch Executive Director.

Members of the CBA (B.C. Branch) will continue to have access to member lists at a reasonable cost for job searchesor announcements of firm relocation. The Branch also now has the capability to refine the label sort by county, city or postal code.

"While we certainly can't elimi­ nate scanned generation of our membership list and unwanted distribution of material to mem­ bers, it will give us some control of access to the list.

Other legally related organiza­ tions such as CLE, the law facul­ ties etc., also will continue to have access to these lists for purposes related todisseminatinginformation of interest to the profession.

"We've set up four categories of availability and will carefully

The new categories will include not for profit organizations and

commercial companies. The Branch Executive Director will screen all requests before provid­ ing member labels to any organ­ ization or firm. A mailing list label price structure has been set which is comparable to commer­ cially available lists.

CBA members who do not wish to have their names included in labels purchased by organizations in these new categories can send their request in writing to the B.C. Branch.

Your comments are always welcome and as we will be monitoring this new program closely for the first few months of operation, don't hesitate to contact Robert Smethurst, B.C. Branch Executive Director, with your comments.

1 I ll || || I I

11

Timely CLE publications assist practice Annual R eview o f L aw and P ractice Covering over 30 areas of law, and focusing on legislation, case law, and practice, this essential reference tool will bring you up to date to Jan. 1,1992. Over 300 pages in length, the Annual Re­ view will save you hundreds of hours of research time. Chap­ ters are written by B.C. lawyers with recognized expertise. ($95 plus GST)

Land Title Transfer Forms G uidebook This is the 1992 edition of the spiral bound "green book" that has become an essential refer­ ence in real estate practice. This handy 6 ” X 9" spiral bound book includes the changes to be introduced in the new Land Title Amendment Act 1991 (Bill 2) that comes into force on May 1, 1992.

You'll get the details on how to deal with the new legislation that creates a new Form C and amends the registration require­ ments for general instruments. ($25 plus GST).

To order, call: Continuing Legal Education Society of B.C. at 669-3544 or 1-800-663-0437.

Convention Cruise ’92 set to sail May 9 to 12 Convention Cruise '92 is shap­ ing up to an active and enter­ taining meeting, says Conven­ tion Cruise Chair Eric Rice.

Dr. Jim Ricks, a consulting psychologist and Dr. Frances Ricks, professor in the School of Child and Youth Care at UVic, have been confirmed as pre­ senters for the "Get a Life" substantive session. The "Tax

Tips" session will be presented

by Doug Graham C.A., a partner in the chartered ac­ countant firm, Doane Raymond Pannell.

As well, the CBA Bon Voyage Reception and special Mother's Day Reception will bring delegates together for fun and prizes.

And of course, all the on-board activities and amenities of the Nieuw Amsterdam will be available to delegates.

While the deadline for state­ rooms held for CBA delegates has passed, a limited number of staterooms may still be avail­ able. Call Uniglobe at 688-5572 to inquire about stateroom availability.

Product of the Month

Call for volunteer lawyers to speak to students

Thousands of dollars can be saved on a car purchase when you use your CBA (B.C. Branch) Members Services agent, ProGroup Sales and Leasing Inc. Enclosed with this issue of BarTalk is a brochure outlining this program. Call Pro-Group at 270-4466 for de­ tails regarding savings on your next car purchase.

Celebrate Law Week '92 by taking part in Speakers in the Schools.

Did you know?

You can save on office supplies and equipment through LegalSave. See page 17 of your Directory or call Western Pacific Purchasing Ltd. at 4611844 for details.

This program is endorsed by the B.C. Branch Member Services Committee.

It's a great change from the office — an opportunity to indulge in nostalgia (remember when you sat in one of those desks?) and to give something back to our students.

The Speakers in the S chool program needs volunteer lawyers to speak to students.

Schools make a request (the topics vary) and we try to link them up with a volunteer who works in the justice system.

Law Week is April 20 to 26 but arrangements can be made outside of those dates.

If you have the time and inter­ est, contact Joanne Taylor at The People's Law School 150-900 Howe Street Vancouver, B.C. V 6 Z 2M4 Tel: 688-2565 Fax: 6 8 8 2566

th e people's law sc h o o l Th e P ublic Legal CELEB^jiNG^QO i% R V IC E Education S ociety

Our Readers React Opposed to content of President’s editorial Bruce M acA dam G olden, B.C.

For two reasons I am opposed to the propriety and content of your lead message in the most recent BarTalk, entitled "Who cares abou t the Constitution anyway?"

In my opinion your article im­ pliedly supports the constitu­ tional efforts of the present gov­ ernment in seeking approval of the distinct society clause. A person more cynical than I might wonder whether there is any coincidence to the fact that lawyers need federal approval to become Justices, Q.C/s or get federal contracts as legal agents, and the CBA uses its na­ tional newsletter to support the

constitutional policies of the government. There is the ap­ pearance of conflict of interest.

Friends of Canada formeo

Second, many people disagree with bilingualism, biculturalism and the distinct society clause.

Many lawyers feel that to pub­ licly appose these issues would ensure that they would never receive a federal legal appoint­ ment. The combined effect of the statements of the CBA and the silence of the Bar is to give the impression to many Canadi­ ans that bilingualism, bicultur­ alism and the distinct society clause must be unimpeachable, because all the lawyers agree.

Many lawyers disagree.

I read your reference to the Constitution in BarTalk and thought you might be intereste< to know that a number of law­ yers and others in Vancouver have formed a group called "Friends of Canada." i

You are entitled to your personal opinion, but it should not be ex­ pressed in such a manner that it could be taken as a consensus of Canadian legal political opinion.

B .W J7. M cLoughlin, Q Vancouver, B.l

We are presently circulating newsletters to some 500 mem­ bers and speaking to a number of service clubs on Constitu­ tional issues.

If there is anything we can do t< co-operate with your efforts, wt would be very happy to do so.

B arT alk w elcom es you r letters. So th a t w e can p u blish as m any as p o s s i b l e , lo n g o n e s m a y b e con den sed. Every p reca u tion is taken to preserve the core o f the w riter's argument.

COSTCO membership available

Dates to Note

Individual CBA (B.C. Branch) members now are eligible for membership at Costco Whole­ sale. Endorsed by the Member Services Committee of the Canadian Bar Association (B.C. Branch), this program offers individual members the oppor­ tunity to obtain a Gold Costco Membership and spousal card for an annual $40 (+GST) fee.

No additional cardholders can be signed up under the Gold Membership.

Law Day Various locations throughout B.C. during April (see page 2 for local coordinators) Open houses at Vancouver Law Courts (800 Smithe) and Provincial Court (222 Main) on Sunday, April 26,1992

Costco Wholesale is a chain of 1 2 0 , 0 0 0 square foot warehouses with locations in Burnaby, Kelowna, Richmond and Surrey as well as 78 other locations across North America.

Costco sells a wide selection of office products, groceries, electronics, hardware, automotives, apparel and more — all at wholesale prices.

To obtain a Costco Gold Mem­ bership, simply complete the form enclosed with this issue of BarTalk and bring it to the nearest Costco location with your CBA membership card.

Costco Wholesale Membership also is available to law firms who possess a current business licence. The annual fee is $35 (+GST) and includes a spousal card. A wholesale member may sign up two additional card holders from the firm for a fee of $20 (+GST) per person.

Any further cards are $35 (+GST) each. Additional cards do not include spousal cards and the firm is responsible for all purchases made by cardholders registered to the firm. The wholesale member­ ship may be used for both business and personal shopping.

May 9 to 12,1992 CBA (B.C. Branch) Convention Cruise '92 aboard the MS Nieuw Amsterdam BarTalk is published by the British Columbia Branch of the Canadian Bar Association, 504-1148 Hornby Street, Vancouver, B.C. V6Z 2C3 Telephone: (604) 687-3404 FAX: 669-9601 Alistair Eagle Photography (688-8867) is the CBA (B.C. Branch) official photographer. © Copyright the British Colum­ bia Branch of the Canadian Bar Association—1992.