BarTalk - December 2015

DREAMING ON A CLOUD | PRIVACY | USE OF TECHNOLOGY IN COURTS

DECEMBER 2015 | bartalkonline.org

Technology & Law

letter BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Candice Alderson

EDITORIAL BOARD MEMBERS

RESPONSE TO THE OCTOBER 2015 ISSUE

Travel Expenses: Overhead or Disbursement?

Brandon Hastings

Marie Burgoyne Laura Cundari Janine Dethlefs Brandon Hastings David Madani Kirsten McGhee Gurminder Sandhu Dierk Ullrich Vanessa Werden

BARTALK SENIOR EDITOR

Maureen Cameron

STAFF CONTRIBUTORS

Judy Cave Travis Dudfield Tanya Galic Stuart Rennie Karen St. Aubin Jennifer Weber Judy Yen

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

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org. © Copyright the British Columbia Branch of the Canadian Bar Association 2015.

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I read with interest Mr. Hastings’ article on travel expenses in your October 2015 issue.

It may not be as gloomy as Mr. Hastings would have it.

All of the decisions which he suggests bar recovery of travel expenses as disbursements in British Columbia are decisions of assessing officers. None of them is a judgment of a court and, therefore, none of them is authoritative. On this point, see Stumm v. Dixon & Co. (1889) 22 Q.B.D. 529 (C.A.), quoted on page 462 of the current edition of the White Book: “[N]o practice of the [assessing officers] is of any legal authority, or in any way binds the court, unless it has been determined

— Gordon Turriff, QC

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2 BARTALK / DECEMBER 2015

by the court itself to be a right practice.” (It should make no difference that one of the assessing officers in Mr. Hastings’ cases happened to be a master sitting as an assessing officer).

What I think should be the “right practice” was laid out in Moon v. Sher (2004) 246 D.L.R. (4th) 440 (Ont. C.A.) (one must ask whether the claimed expense was “case specific” [which is another way of asking “but for this case, would the expense have been incurred”]) and Kuwait Airways Corporation v. Iraqi Airways Company [2003] 1 Costs L.R. 130 (H.L.) (travel expenses to take instructions and collect evidence are recoverable).

Moon and Kuwait, which are both annotated on page 463 of the White Book, are not themselves authoritative in British Columbia but they are judgments of appeal courts worthy of careful consideration.

Lawyer Referral Service Email: lawyerreferral@cbabc.org

DECEMBER 2015

VOLUME 27 / NUMBER 6

Contents

Departments

4

FROM THE PRESIDENT An Open Invitation to The Right Honourable Justin Trudeau

by Jennifer Chow

5

EXECUTIVE DIRECTOR Trauma-Informed Justice

by Caroline Nevin

6

PRACTICE TALK Uber and the Practice of Law

by David J. Bilinsky

7

DAVE’S TECH TIPS

8

NOTHING OFFICIAL Sunny Ways Matter!

by Tony Wilson

Sections

10 SECTION UPDATE

Air Law

CCCA BC Family Law – Fraser Valley

Civil Litigation – Tri-Cities/New Westminster 11

SECTION NEWS

Features

12 RECORD RETENTION POLICY

FOR E-DISCOVERY

by Mark Fancourt-Smith 13 DREAMING ON A CLOUD?

by Euan Sinclair 14 YOUR WEBSITE IS A BUSINESS TOOL

by Doug Jasinski 15 PRIVACY COMMISSIONERS ISSUE GUIDANCE

by Bradley Freedman 18 THE USE OF TECHNOLOGY IN COURTS

by The Honourable Justice David Masuhara 20 ADDRESSING ANONYMITY

by Mathew Brechtel 21 ELECTRONIC DISCOVERY AND DISCLOSURE

by Lisa Ridgedale

Guest 9

Inside This Issue Technology continues to impact the manner in which businesses and professional service providers deliver their services. With the opportunities that technology brings to the practice of law, it can also create issues if certain impacts are not carefully considered. This issue of BarTalk offers different perspectives from the Bench, private practitioners, privacy commissioners and professional service providers on topics such as BYOD programs, security, website analytics, record retention, e-discovery and disclosure. The article written by The Honorable Justice David Masuhara provides insight to litigators when using technology in the courts, however, many points are also relevant to consider when preparing for a presentation outside of the courtroom.

News and Events 2 Letter to the Editor 22 McLachlin: Where Do We Go From Here?

RESOURCES: LawLessons.ca & CyberSafeBC.ca 23 Georges A. Goyer, QC Memorial Award

While in Moscow

Did You Know 24 CBABC WLF Report on Events

CLEBC Update 25 BC Legislative Update

Branch & Bar Calendar

CBA Wellness 26 2015 Mentorship Receptions at UVic and UBC 27 CBABC Annual Conference: Whistler, BC

Also In This Issue

16 MEMBER SERVICES 27 LAW FOUNDATION OF BRITISH COLUMBIA 28 PROFESSIONAL DEVELOPMENT 29 DISPLAY ADS

THE LAW OF SPORTS GAMBLING IN CANADA

by Blair Driedger

30 BAR MOVES 31 NEW MEMBERS

Click here for LEGAL OPPORTUNITIES and ads DECEMBER 2015 / BARTALK 3

FROM THE PRESIDENT JENNIFER CHOW

An Open Invitation

To The Right Honourable Justin Trudeau

H

ello Prime Minister, Congratulations on becoming Canada’s 23rd Prime Minister! You made it look easy!

I send warm greetings from your former stomping grounds – the beautiful province of British Columbia. I thought of Facebook, but didn’t want to get lost among the frenzy. Who else would send you an Open Invitation published in a lawyer’s magazine? Really! I wanted to be the first.

First, thank you. Diversity is indeed what makes us a strong Canada. Thank you for proudly presenting us with a cabinet that looks like Canada. How refreshing. Hear hear!

Diversity is near and dear to my heart. This year, I became the first visible minority president of the BC Branch of the Canadian Bar Association. The Branch, representing approximately 7,000 lawyers, is part of a national not-for-profit society of about 39,000 lawyers across Canada. Yes, that’s a lot of lawyers. That’s a lot of strong voices. We speak out on many issues facing lawyers and the law, including diversity within the legal profession and the judiciary, and access to justice for all citizens.

Like you, I have an extraordinary “cabinet.” My Executive Committee of 10 lawyers is also wonderfully 50-50 gender-balanced. Truth be told, my Executive Committee doesn’t have an actual doctor, war hero or astronaut. We are a group of lawyers after all. My Executive Committee does, however, consist of young and older lawyers, two lawyers of South Asian descent, lawyers and partners from small and large firms from Vancouver to Victoria to Penticton to Kelowna to Smithers. We even have an elected Chinese President from the federal government. Wait, full disclosure – that’s me. As one of your employees, I am also the first

4 BARTALK / DECEMBER 2015

Department of Justice lawyer to be the CBABC Branch President. Yes, it’s true, you are my boss. Okay, technically my boss is The Honourable Jody Wilson-Raybould as the new Minister of Justice and Attorney General of Canada. But well, you’re the “big boss.”

As Branch President, I formally invite you to come meet and greet our diverse group of BC lawyers.

We would be delighted to have you mix and mingle at Provincial Council. Our Provincial Council, like your Parliament, consists of a variety of lawyers from all over BC. They are elected representatives from our general membership. At Provincial Council, we discuss and collaborate on issues facing the legal profession.

If your schedule permits, please join us for one of our meetings in Richmond. Our next meeting dates are: December 5, 2015; and March 5 and June 18, 2016. If it’s

not too forward, could you please also bring The Honourable Jody Wilson-Raybould? We would really like to meet her too.

If you cannot make our Provincial Council dates, please also accept this invitation to attend one of our Executive Committee meetings. A Branch President-Prime Minister tête-à-tête would also be more than acceptable.

If any of these options work for you, we would gladly work around your schedule.

Just let us know when you are free. May I also suggest scheduling a bit of Whistler snowboarding into the same trip? I know several lawyers who would make great snowboarding buddies, myself included.

In closing, forget about celebrity magazines swooning over your old boxing photo with the Haida tattoo or calling you “super hot.” I am still swooning over your answer to the media’s question of why you chose 15 women and 15 men to cabinet – “Because it’s 2015.”

I look forward to hearing from you at your earliest convenience.

You already have a reason to visit us – “Because it’s British Columbia.”

Jennifer Chow

president@cbabc.org

EXECUTIVE DIRECTOR CAROLINE NEVIN

Trauma-Informed Justice Because it’s 2015

T

he last two Justice Summits, hosted by The Honourable Suzanne Anton, BC Attorney General and Minister of Justice, had a fascinating theme embedded within them: a shared responsibility for creating a “trauma-informed justice system.” This idea is well-developed in the health sector, but it is relatively new to criminal justice. The basic idea is that people may behave and respond differently than we expect as a result of trauma, and it is imperative that we recognize their behaviours as valid and do everything we can to not re-traumatize them when they come into contact with the justice system.

Tara Brach, in a great resource from Manitoba called The Trauma Toolkit, describes trauma as “when we have encountered an out of control, frightening experience that has disconnected us from all sense of resourcefulness or safety or coping or love.” Interestingly, the event itself is not necessarily

what makes it traumatic – it is the meaning we place on it and our own and others’ response to it.

And it’s not just personal: families, communities and entire cultures can be traumatized when events occur that have reverberating impact, such as the inter-generational damage caused by the Canadian residential school system, and the neglect of marginalized women on the Highway of Tears and Vancouver’s Downtown Eastside. That some people believe themselves to be valued as less worthy than others in our society is a shame we cannot erase, but what we can do is to choose to live differently in 2015 and onward.

The fact that a traumatic event is experienced as being “out-ofmy-control” is important: can you think of an institution more likely to invoke feelings of powerlessness than the justice system, where the police, Crown, defence counsel and judge are at minimum inquisitorial and at worst strongly adversarial?

When we question people’s recollections of an event, their response to the event, whether they took any action to protect themselves, or what choices they made that might have made them vulnerable, we are almost certain to trigger the same physiological responses that occurred during the actual traumatic event.

The result – and this is the most important part – are witnesses who, by all of the “normal” standards we have been trained to measure, exhibit behaviours that damage our perception of their credibility.

There is a strong body of recent neuroscience that says that everything you learned in law school (or policing school or judges school) is completely wrong when it comes to assessing the credibility and veracity of someone who has experienced trauma. Among those researching this field, Dr. Haskell from the University of Toronto has presented, to the Summits and to the Vancouver

Police Department, compelling evidence that there are different parts of our brains that “encode” traumatic memories in different ways than non-traumatic events. The encoding of traumatic memories can completely disrupt the sense of any coherent chronology, create intense fragmentation of memories, and result in the retention of complex details about some things and a complete blank about others. Also, the physiological response to intense fear and powerlessness can lead to non-selfprotective behaviours that have everything to do with a “freeze” response or disassociative state, both of which are normal, primal-brain behaviours that can be triggered by trauma.

The fact that a survivor of rape or other horrors is unable to exhibit a straight-line recollection of an event, or was unable to take action to protect himself or herself is not, in fact, a strike against the credibility of the witness – it is evidence that a trauma actually occurred. Now that we know that, it’s time for justice system players – and their educators – to catch up to the science.

Caroline Nevin

cnevin@cbabc.org DECEMBER 2015 / BARTALK 5

practicetalk DAVID J. BILINSKY

Uber and the Practice of Law

Are the walls of Jericho about to come down?

So let your trumpets blow ‘Round the walls of Jericho Let your mighty voices sound Until the walls come tumbling down... r r

W

– Music, Lyrics and recorded by: John Fullbright

hat do Uber, the taxi-replacement service, and the practice of law have in common?

This was recently posted by a friend in Facebook: Transportation in the new digital economy; Vancouver is Uber-free, but I tried it in Sacramento. Download the app and fill in basic information (e.g. credit card) in advance. When ready, the app confirms pickup location, takes your destination address, estimates the fare and wait time for pickup, and (if you approve) calls a driver. Best feature: when you arrive, just step out of the vehicle and go; payment is automatically charged to your card. No fiddling with charge cards, signatures, etc. A very positive experience – I will definitely use the service again.

Uber is a disruptive technology/ service that is changing the face of ground transportation in cities where it has taken hold. Does Uber hold any lessons for the practice of law? To start, let’s look at the commonalities of taxis and the practice of law. Each:

Has a monopoly that excludes competitors.

Calculates the fare at the end of the ride.

Is highly regulated.

Extols the virtues of their regulations as protecting the public’s interest.

6 BARTALK / DECEMBER 2015

Claims

that their exclusivity is necessary to ensure the proper operation of the market for their services.

What are the differences between taxis/the practice of law and Uber?

Uber app estimates your fare in advance.

Uber app shows the route you will be taking.

Uber collects feedback from riders and uses this to ensure quality control.

Uber claims that they offer predictability, lower prices for a similar product, greater convenience, reliability and quality of service by focusing on the client experience.

What evidence is there in support of Uber’s arguments? Well, the Competition Bureau says ridesharing services are good for consumers, calling them innovative and likely to create lower prices and better service (http://bit. ly/1Nj0Xcg).

What happens when Uber comes into a city?

The condition of taxis suddenly improve.

Uber itself begins to face lowercost competitors.

Certainly there are many detractors and negative aspects of the Uber model. But Uber is an example of the emerging platform business model, in which competitors can enter a marketplace for virtually zero marginal cost against entrenched competitors.

Can this happen to lawyers? Clients don’t necessarily want a lawyer; they want a solution to their legal problem. Does it matter to them if a lawyer or a non-lawyer provides the service?

I have often said that the hardest law to repeal is the law of economics. In this case, Uber and similar services have the law of economics on their side. Consider that if we do nothing, as lawyers we may let our mighty voices sound until the walls come tumbling down....

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

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia.

Email: daveb@lsbc.org Blog: thoughtfullaw.com

GO ONLINE FOR MORE INFORMATION

dave’s techtips Villains, Thieves and Encrypted Files Unfortunately, a number of law firms across North America are being hit by ransomware. This class of particularly nasty malware stealthily enters your system and starts encrypting your files or your operating system.

You come into the office only to be met with a locked computer displaying a message demanding a ransom be paid (typically between $200-$10,000 payable in Bitcoin, per the FBI) or your files will be lost to you... forever.

This type of malware is very effective and has earned millions for its creators.

According to Kapersky (bit.ly/1M4qqZ3) “The most common ways in which ransomware is installed on your system are via phishing emails or visiting a website that contains a malicious program that downloads onto your computer.

Ransomware is particularly nasty in that it stops the Windows service that keeps histories of changes to files, thereby preventing you from rolling back to prior file versions.”

So, you ask, aren’t there ways to stop this malware?

According to the Wall Street Journal (on.wsj.com/1iS6nm7) “At a computer security conference in Boston last month, FBI Assistant Special Agent in Charge Joseph Bonavolonta said “certain types of ‘ransomware’ are so good that, to be honest, we often advise people just to pay the ransom.“ Well... that might work if the ransomware creators are competent at what they do. But what happens if you fall victim to crooks who are not, shall we say, at the top of their game?

The BBC reported (bbc.in/1HFUPsP) “Coding mistakes in a malicious program that encrypts data mean anyone hit by the Power Worm virus will not be able to recover files, say security experts.”

Dirty rotten incompetent scoundrels! What can you do when you run up against these viruses? The BBC article stated: “There is unfortunately nothing that can be done for victims of this infection,” wrote malware researcher Lawrence Abrams on the Bleeping Computer tech news website. “If you have been affected by this ransomware, your only option is to restore from a back-up.”

Now having a backup is always a good thing. Having two is even better. Having one on the cloud where, hopefully, the malware can’t find it and therefore can’t encrypt it is a very good thing.

It should be a backup service

that is only connected to your network for the time that it takes to do a backup and then disconnects – maintaining an “air gap” for added protection. Unfortunately, Dropbox and Google Drive will not be effective against ransomware since the corruption that this malware creates would be copied up to their version of your files in the cloud.

Tech Republic (tek.io/1ump9DX) states: “[T]he most effective method to recover your files is by using a backup. If your files have been backed up regularly, connect your backup drive to a non-infected computer to check your files.”

You need true cloud backups with version retention that are enveloped in industry-standard encryption to survive such malware. Zero-knowledge Canadian backup services such as sync.com provide added protection since they provide end-to-end encryption and version protection.

Esentire (esentire.com), Paloalto Networks (bit.ly/1SKade1) and similar threat detection systems are another emerging method to protect yourself against these threats.

Hat tip to Blake Wiggs for pointing me to the BBC article and Robert McNeney for supplying the title. © 2015 David J. Bilinsky

DECEMBER 2015 / BARTALK 7

nothingofficial TONY WILSON

Sunny Ways Matter!

Weighing in on the Federal Election

W

ell, that was an interesting election, wasn’t it?

By now, all the pundits have pundicized on what the Tories did wrong and what the Liberals did right. For me it came down to a few simple things: Inspiring hope is better than peddling fear. Canadians want to be uplifted and inspired by their leaders. Engaging in wedge politics, low blows, negative campaigning and cheap shots (by any candidate from any party) is something that doesn’t belong in a Canadian election (particularly if it involves hair, youth or niqabs).

I thought political discourse had reached a low when a Tory candidate in Oakville claimed the Liberals would mandate legally protected brothels near marijuana dispensaries in residential neighbourhoods (lowering voters house prices). But when niqabs became an election issue and a snitch line was suggested to report “barbaric cultural practices,” I realized it had sunk even lower.

That’s why I respected Conrad Black’s pieces in the National Post, where he took strips off the Tories for everything from Bill C-51 (which he said would be “abused in a way profoundly offensive to Can­adian traditions of respect for indi­ vidual rights and the rule of law”) to mandatory minimum sentences. Building more prisons in response to declining crime rates was a “retrograde, total-immersion plunge into primitivism” he said.

“Native people will be the chief occupants of the new prisons, which should be repurposed at once as assisted housing.” “The entire reactionary agenda,” he said, “is obnoxious to traditional Canadian respect for rights and due process.”

And creating an election issue out of a woman wearing a niqab at a citizenship hearing was a “shabby act of desperation,” “pandering to knuckle-dragging authoritarians.”

8 BARTALK / DECEMBER 2015

The entertainer Ezra Levant has already mocked the new PM’s “infrastructure repairs” to 24 Sussex Drive, accusing the Liberals of “awaking their zombie army of lobbyists, schemers, scammers and everyone to get their share of the loot.” He forgets that prime ministers of all parties meet presidents, diplomats and even schoolchildren there, and if 24 Sussex needs to be overhauled to prevent the roof from collapsing on a Christmas choir, then it should be fixed. Just like the rest of Canada’s infrastructure. (Besides, it’s not like Justin’s going to flip it.)

So here’s some free advice for the new PM. First, ignore Ezra Levant, but pay close attention to Conrad Black, who is a voice to be reckoned with and who believes the best method for Canada to be influential in the world, and to achieve the recognition Canadians aspire to for their country, is to become a successful laboratory for innovative legislation and social policy. Make it so, Justin.

Second, raise the GST/HST by 2%, but specifically dedicate at least 1% to cities and municipalities pro rata for targeted capital projects, such as homeless initiatives and infrastructure creation and repair. 1% of GST/HST is $7 billion. As most Canadians live in cities, future federal governments will eliminate this at their electoral (and eternal) peril.

Third, campaigning is easy but governing is hard. Governing involves difficult choices and tough compromises for the greater good. All MPs make sacrifices to be in public life, and have valuable contributions to make, so try to build bridges with the other parties and opposition MPs. Inviting Elizabeth May, Tom Mulcair and the interim Tory Leader to the UN Summit on Climate Change in Paris is not only good politics, its good governance.

Fourth, reinstate the long-form census, regulate guns, trust the scientists again and adequately fund programs for our veterans.

Fifth, somehow decriminalize marijuana, but allow the provinces to regulate it like liquor so they can tax the bejesus out of it.

Finally, (and it’s a selfish request), please put all-day classical music and jazz back on Radio 2.

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

guest BLAIR DRIEDGER

The Law of Sports Gambling in Canada

Bet on changes for the first time in years

O

ne cannot question the prevalence and importance of professional sports in Canada and what has rapidly become a billion dollar industry. As Canadians’ obsession with sports grows, so too does the desire to get closer, and feel connected with, professional athletes and the games they play. High definition cameras and social media aside, sports betting is arguably the most modern way individuals are feeling that connection, and Canadians are paying for it. Estimates have Canadians wagering over $10 billion annually, predominantly on the outcome of a single game. The catch? Single-game bets, primarily placed through offshore betting websites, are illegal.

Canadian gambling laws, save for a series of minor and now antiquated amendments, have remained largely unchanged since the enactment of the Criminal Code in 1892. Section 207(4)(b) of the Criminal Code of Canada prohibits wagering on the outcome of a single sporting event.

In response to the single-game prohibition, Canadian provinces, given exclusive authority to administer legalized forms of gambling in 1985, currently offer “parlay” wagering on sporting events. Parlay wagering involves correctly predicting the outcome of two or more sporting events.

The win rate for single-game bets

is significantly higher than parlay bets and, as a result, single-game bets are much more appealing.

Enter Bill C-290. A private member’s bill that would delete a small clause from s.207(4)(b) of the Criminal Code that prohibits wagering on a singlesports event; opening the door to Vegasstyle sports gambling in Canada. The bill is expected to receive Senate consideration in 2015. If passed, Bill C-290 would give each province the power to permit single-game sports betting within its borders. Notably, both British Columbia and Ontario are on record in support of Bill C-290.

Single-game bets, primarily placed through offshore betting websites, are illegal.

Proponents of Bill C-290 hang their hats on the revenue potential that is being foregone by failing to take control of the industry; an argument best distilled by the comments of one supporter who said “[m]ake no mistake: If you vote against this Bill, you are not voting to put a stop to single-event sports gambling, but you are voting to

ensure it remains in the shadows, with the money going offshore and to organized crime.” It’s worth noting that the American President’s Commission on Organized Crime rates illegal sports gambling second only to drugs as a source of income for crime syndicates.

Those opposed to single-game sports betting, a list that includes major North American professional sports leagues, argue that such bets will undermine the integrity of professional sports. Sports purists are concerned that widespread sports betting will make fans more concerned about the betting line than the entertainment of the game. Alas, one cannot help but question the commitment of the professional sports leagues in opposition to the bill; the NHL, NBA and MLS have all publicized potential expansion into Nevada, the holy grail of the single-game sports wager.

The merits of Bill C-290 will continue to be debated, but there is no ignoring the fact that the current prohibition is not stopping the activity. Undoubtedly, the debate surrounding Bill C-290 marks what is sure to be one of the most influential decisions on the legalization of sports gambling in North America to date, and excitingly, Canada is at the forefront. Certainly, a savvy gambler would put their money on the law of sports gambling changing in Canada for the first time in many years. Stay tuned.

Blair Driedger graduated from the inaugural TRU Law class in 2014 and currently works at Bilkey Law in Kamloops.

DECEMBER 2015 / BARTALK 9

sections SECTION UPDATE

Keep Current A review of provincial Section meetings Air Law Meeting in Review: September 29, 2015 Speaker: Pascale Giguere, Senior Counsel and Manager, Legal Affairs Branch, Office of the Commissioner of Official Languages Topic: The Air Canada vs. Thibadeau Case-Issues

Canadian Corporate Counsel Association BC (CCCA BC) Meeting in Review: October 6, 2015 Speakers: Chris Gouglas, VP Legal Services and General Counsel, Best Buy; Jo-Ann Smith, Senior Manager Enterprise Information Protection, Best Buy; Bradley Freedman, Borden Ladner Gervais; and Ruby Rai, Underwriting Specialist, AIG Insurance (Toronto) Topic: Panel Discussion: Cyber Risks – Four Perspectives – Gain Practical Insight into Emerging Cyber Risk Issues

Air Law Giguere of the Office of uPascal the Commissioner of Official Languages gave a presentation on the Air Canada vs. Thibodeau decision. The issue in that case was whether the provisions of the Montreal Convention (passed under Carriage By Air Act, RSC 1985, c. 26) had exclusive jurisdiction for damage claims by passengers on international flights.

Damages were awarded under the Official Languages Act to the Thibodeaus who did not receive service in French on some Air Canada flights to the USA. The Supreme Court of Canada decided that the Montreal Convention had exclusive jurisdiction with respect to the claims for damages in this case and not the Official Languages Act.

Canadian Corporate Counsel Association BC (CCCA BC) The CCCA BC held its kick-off

Family Law Fraser Valley Meeting in Review: October 13, 2015 Speaker: The Honourable Suzanne Anton, QC, BC Attorney General and Minister of Justice (pictured left) Topic: Issues Impacting Family Law

Civil Litigation Tri-Cities/New Westminster Meeting in Review: October 21, 2015 Speaker: The Honourable Mr. Justice Robert Crawford, Supreme Court of British Columbia (pictured centre) Topic: Decorum in the Courtroom

10 BARTALK / DECEMBER 2015

umeeting of the year at the Van-

couver Club on “Cyber Risks – Four Perspectives – Gaining Practical Insight into Emerging Cyber Risk Issues.” The panel included: Chris Gouglas, VP Legal Services and General Counsel, Best Buy; Jo-Ann Smith, Senior Manager Enterprise Information Protection, Best Buy; Bradley Freedman, Borden Ladner Gervais; Ruby Rai, Underwriting Specialist, AIG Insurance (Toronto); and Allison Crane, Intermark Law and Chair of the CCCA BC as moderator. This session featured the legal framework under which cyber risks emerge and a practical discussion on how companies can manage these risks through policies, active management, technology and insurance products.

Family Law Fraser Valley On October 13, 2015 the

uCBABC Family Law – Fraser

Valley Section had the honour of hosting The Honourable Suzanne Anton, QC, BC Attorney General and Minister of Justice, as a guest speaker.

The Honourable Suzanne Anton, QC outlined the justice initiatives that she is currently involved in with the Legal Services Society. These include an expansion of duty counsel services, the LawLine, the Parent’s Legal Centre, and the Family Mediation Referral Program.

Members of the Bar present discussed Section 211 assessments, regulating access supervisors and the interpretation of “excluded assets” within the Family Law Act. Minister Anton made a careful note of the suggestions made.

Civil Litigation Tri-Cities/ New Westminster The inaugural Civil Litigation

u– Tri-Cities/New Westminster

Section meeting occurred on October 21, 2015. The meeting was held at the Aboriginal Gathering Place on Douglas College Campus, with Aboriginal Student Services Coordinator Dave Seaweed speaking to the importance of the room to the QayQayt First Nation.

Justice Robert Crawford was introduced by Section Co-Chairs Kristin Gardner and Thomas L. Spraggs, and gave an engaging presentation on the importance of decorum in the courtroom, as well as sharing anecdotes from his time on the Bench and his long legal career.

For CBABC members, more detailed information and available minutes from the Section meetings are online at cbabc.org under CBABC Sections & Forums.

UPCOMING SECTION MEETINGS Looking for upcoming Section meetings? Check the online Sections

Calendar or the CBA PD Resource site regularly as new meetings are added daily. Enrolled members automatically receive notice of their Section meetings by email. Enjoy the benefits of membership and enrol in Sections today. CBA members are reminded to keep their profiles up to date with the Branch to ensure they receive notices.

SECTION NEWS

You Are Invited...

One of the older practitioners in your firm? What will you do when, after 40 or so years of practice, you find yourself thinking of pulling the plug? What will you do when you’ve retired and suddenly realize that you no longer have any connection with the people you spent your working life with? Universities and high schools have alumni associations. Some professions have professional associations. BC lawyers have the Senior Lawyers Section of the BC Branch of the Canadian Bar Association.

The name is misleading. We are practising lawyers, ex-lawyers and ex-judges, who may or may not still be members* (see below) of the CBA. Our common denominator is that we are all over 55.

Once every few months we receive an invitation for drinks at 6:30 p.m.; dinner at 7:00 p.m. and a speaker following. Those who are free and find the speaker’s topic of interest send in a cheque to the CBABC. Usually this turns out to be a group of men and women numbering between 15 and 20. There is a no-host bar and you have a choice of a meat or fish three-course meal in a specially reserved room.

Our speakers are an eclectic group, ranging from retired university professors, scientists and police chiefs, to entertainers and politicians.

Their topics are not necessarily legal, but rather generally educational and invariably interesting; some, like Christopher Gaze, quite entertaining.

The proceedings are informal and the conversation, congenial. One comes away from the evening with a feeling of time well spent in good company. Those who study the effects of ageing, tell us that one of the ways to combat the advent of Alzheimer’s disease, is to cultivate an active social life.

If you are interested, send your name and email address to sections@ cbabc.org. You will receive the invitations and can attend when it pleases you. For those still practising, some of the meetings qualify for CPD credits.

Gerald J. Lecovin, QC Chair, Senior Lawyers Section *If you are not a CBA member, please contact sections@cbabc.org to enquire about attending a Section meeting with a Privilege Pass.

DECEMBER 2015 / BARTALK 11

features MARK FANCOURT-SMITH

Record Retention Policy for E-discovery

Planning and enforcing documents destruction

I

ncreasingly, the rationale for implementing a records management and retention policy is not simply to manage space, data storage, and their associated costs, but also to limit legal fees, and increase certainty, in e-discovery. Limiting the number of records to be searched at the outset of e-discovery is the first and most important step in managing the process.

In many instances, the length of time a record must be kept is governed by statute or regulation. However, once that time requirement has passed, or in the absence of a specific retention requirement, the focus must shift to providing a rationale for keeping the record, as opposed to keeping all records by default. Although it may initially seem counterintuitive, an effective retention policy does not so much mandate record retention as plan their orderly destruction.

WHAT TO KEEP AND WHY?

Records should be classified by role or use: for example, general business records (emails, correspondence, contracts, strategic plans), accounting records (accounts payable, bank accounts), taxation records, human resources documents, etc. Their useful lives as active documents can be informed by their classification. For example, is a record needed indefinitely, or only until it is superseded by a new version? Thought must also be given to how long after a document ceases to be in active use it may be needed to resolve a dispute.

12 BARTALK / DECEMBER 2015

WHO DECIDES AND WHO DESTROYS?

For many classes of documents, destruction can be programmed to occur at a certain point. However, other categories may need a legal or audit review before deciding on their destruction or retention, and this should be included in their classification.

Not only the judge, but also the record’s executioner should be specified, i.e.: who is responsible for actually destroying the records once their retention period has expired? Equally important is to ensure documents are not destroyed early, and that processes are in place to implement a “litigation hold,” and stop record destruction when litigation rears its head.

Simply designating records for destruction, without assigning responsibility to ensure it takes place in adherence to the policy defeats the utility of a policy for e-discovery entirely, for three reasons.

SUFFICIENCY OF SCOPE AND PROOF OF ABSENCE

First, although an obvious point, the fewer records retained, the fewer documents to collect, review, and ultimately produce for discovery, and the lower the e-discovery cost. Without enforced destruction of records, this benefit is lost.

Second, a collateral purpose of a record retention policy is to know with certainty what has been retained, by which custodian, and where in the organization. This not only allows for relevant documents to be more easily found, but enables one to use search parameters, including date range, to narrow searches and be confident that they will catch relevant documents for production in e-discovery. If one cannot have confidence that certain parameters will in fact catch all relevant documents, then this benefit of a retention policy is lost. If challenged, one may need to expand a search, or be ordered by a court to do so.

Third, a retention policy enables one to explain to a court why a potentially relevant record no longer exists, preventing both fishing expeditions and accusations of spoliation. If one cannot show that documents are destroyed as planned, one may be forced to look for a proverbial needle in a haystack by an adversary. If documents were destroyed ahead of schedule, or destruction continued after a “litigation hold,” then one may be exposed to accusations of spoliation.

Having a clear and reliable retention policy is vital to managing the scope of electronic discovery, and having confidence in the integrity of one’s document production. To be effective for e-discovery, a policy must plan for and enforce destruction, satisfy an adversary as to completeness of production, and provide proof of some records’ absence.

Mark Fancourt-Smith is a partner at Lawson Lundell LLP.

EUAN SINCLAIR

Dreaming on a Cloud?

The tension between security and convenience

I

t was so simple in the old days. The filing system was secured by lock and key. The communication “platforms” were writing a letter, setting up a meeting or speaking on the telephone. Any risk of interception by unauthorized third parties was negligible.

Then technology came along and ruined everything. Technology changed the way lawyers store and access their client data.

It’s only really now, in the age of high profile hacks, that lawyers are starting to question where their data goes when it is in transit and where it lives when it is at rest on a server.

The decision for law firms on where to store data is not an easy one, for there are many benefits and risks to take into account. The choices come down to storing data on local hard drives or USB sticks (not recommended), on a shared drive on a network, or somewhere on the cloud.

Using a shared drive on a network is the most secure option, but it does not come cheap. Hosting costs will be significant and a geo-redundant backup server should also be included as part of a disaster recovery plan, effectively doubling the cost.

Using the cloud is cost-effective and convenient but brings an equal amount of risks and benefits, as outlined in a 2011 survey by the Law Society of England

and Wales. According to this survey, the benefits include: improved backup/disaster recovery; flexibility; increased storage capacity; increased data handling capacity; reduced infrastructure costs; avoiding frequent updates to software; and reduced internal IT staff costs.

The risks identified in the survey include: security, data confidentiality and location of data; service reliability and stability; lack of control over customization and integration; service response time and enforcing service level agreements; speed and bandwidth; danger of supplier lock-in; and difficulty of achieving executive buy-in.

The decision for law firms on where to store data is not an easy one, for there are many benefits and risks to take into account.

Law firms with a certain profile (or those hoping to attract institutional clients) will eschew cloud services for regulatory reasons or due to client sensitivities, in any event. Banks will not generally entertain law firms who store data on the cloud, for security reasons.

Public bodies are required by the Freedom of Information and Protection of Privacy Act to ensure that their data is stored and accessed only in Canada.

The issue of data sovereignty is an important one. There may be political or legal risks in storing data in foreign jurisdictions.

The risk of storing data in the U.S. was judicially considered in October 2015 by the European Union’s highest court, the Court of Justice of the European Union. The Court torpedoed the European Commission’s “Safe Harbour” scheme for the safe transfer of data to the U.S. on the grounds that the U.S. does not provide an adequate level of protection for data transferred there.

The risks and benefits are left to law firms to weigh. In British Columbia, the Law Society states that it regulates lawyers, not technology.

The Benchers adopted the Cloud Computing Due Diligence Guidelines in 2012. The Guidelines are technology-neutral and leave it to lawyers to be satisfied that they have completed sufficient due diligence on the technology they propose to use.

All that said, there is a saying in technology: “if you don’t pay for the product, you are the product.”

Therefore, it is abundantly clear that lawyers should never make use of free services like Gmail that admit they use the personal data from email messages.

Euan Sinclair is an associate in Lawson Lundell’s Technology practice group and the firm’s Director of Knowledge Management.

DECEMBER 2015 / BARTALK 13

features DOUG JASINSKI

Your Website is a Business Tool

Using analytics to measure performance

D

ata is the new black.

From tech startups to governments to global conglomerates, organizations across multiple industries are recognizing that the ability to gather and use data more effectively can put you in the driver’s seat.

For law firms, a frequently under-utilized data point is your law firm website. Many firms don’t track website usage at all, and many more take only a very ad hoc approach to doing so.

Firms seeking a more data-driven approach to their marketing activities can use website analytics tools to quantify and improve their marketing efforts.

WEBSITE GOALS & CONVERSIONS: BEGIN WITH THE END IN MIND

Those familiar with Stephen Covey’s 7 Habits of Highly Effective People know that one key habit is to “begin with the end in mind.” Google Analytics (the most commonly used website tracking tool) encourages website owners to take this same sort of resultsdriven approach by building “goals and conversions” into their website monitoring activities.

Think about the different business objectives you might have for 14 BARTALK / DECEMBER 2015

specific sections of your website.

For example, if you want to increase the audience for an upcoming construction law conference

your firm is hosting, signups for the event are the “goal” for that part of your website. Consider what specific action a website visitor must take to hit that goal. We call that action a “conversion point.” In this example it would be when the visitor hits the “register now” button and signs up for your event.

When a website visitor does exactly what you hoped they would do – register for an event, submitting a form, emailing you directly from the link on your bio page, or hitting the “call now” button from a mobile phone are all possible examples – they have hit a conversion point. Website analytics tools such as Google Analytics now allow you to specify your own custom goals and then monitor how frequently you’ve achieved them.

EVIDENCE-BASED MARKETING

Website visitors hitting conversion points provide quantifiable evidence that the website is doing its job – attracting leads and delivering them to you. Further, beyond providing specific data about when and how often those conversions are occurring, we can increasingly also analyze which pages on your website and which online marketing practices (SEO, Google AdWords, Social Media, Blogs, Client Newsletters, etc.) are performing at high levels and turning into

conversions and which are not.

By identifying specific business goals, tying them to conversion points and building that into your website analytics, you can analyze your data to see where “the good leads” have come from. A roadmap then emerges enabling you to measure your marketing performance more objectively, and focus on high-performing activities and channels to increase your conversions further still.

It’s a truism that lawyers like to make decisions based on evidence rather than conjecture. Increasingly, website analytics tools are allowing us to provide that evidence.

Doug Jasinski is the president of professional services marketing agency Skunkworks Creative Group Inc. and a former Vancouver lawyer.

BRADLEY FREEDMAN

Privacy Commissioners Issue Guidance For BYOD programs

I

n August 2015, the Privacy Commissioners of Canada, Alberta and British Columbia issued guidelines entitled “Is a bring your own device (BYOD) program the right choice for your organization?” (the “Guidelines”). The Guidelines provide helpful guidance for any organization considering a new BYOD program or assessing an existing BYOD program.

BYOD

Bring your own device (BYOD) – also called bring your own technology (BYOT), bring your own phone (BYOP) and bring your own PC (BYOPC) – refers to a practice of permitting employees to use their own computing devices (e.g. smartphones, tablets and laptops) for both personal and business purposes. BYOD programs are perceived to result in productivity gains, increased worker satisfaction and cost savings. BYOD programs can also present significant privacy and security risks, because each BYOD device is connected to the organization’s IT infrastructure and to the user’s personal IT services, and accesses both the organization’s data and the user’s personal data.

THE GUIDELINES

The Guidelines remind that Canadian personal information protection laws require an organization to safeguard personal information in the organization’s custody or control from risks such as unauthorized

access, collection, use and disclosure.

The Guidelines also remind that an organization is accountable for personal information collected, used or disclosed by the organization’s personnel using BYOD devices. The Guidelines caution that a BYOD program might not be the right solution for an organization. The Guidelines include the following recommendations for developing and implementing a BYOD program: PIA/TRA: Conduct a privacy impact assessment and a threat risk assessment to identify and assess the risks presented by a proposed BYOD program, and to determine whether the program is appropriate for the organization.

BYOD Policy: Develop, implement and enforce a BYOD policy that establishes the rights and obligations of the organization and BYOD users.

Training: Train BYOD program stakeholders to identify and manage security and privacy risks.

Mobile Device Management: Consider mobile device management (MDM) software to manage BYOD devices, and the use of MDM software should be addressed in a BYOD policy and an agreement between the organization and each BYOD user.

Communication / Storage: Consider limiting the kinds of data that

may be accessed by BYOD devices, and using technologies to avoid or minimize the need to store data on BYOD devices and to segregate organization data from user data.

Encryption: Consider using encryption to protect the organization’s data while in transit (to and from BYOD devices) and at rest (on BYOD devices).

Asset / Software Management: Approve and manage BYOD devices and the installation, configuration, updating and removal of operating systems and applications installed on BYOD devices.

Authentication and Authorization: Use authentication (e.g. device authentication and user authentication) and authorization.

Malware: Use protection against malware that might be installed on or transmitted by BYOD devices.

Incident Management: Establish and regularly test and update an incident management plan for security incidents and privacy breaches involving BYOD devices.

COMMENT

BYOD programs may provide various benefits, but they also present significant risks, including losses and liabilities resulting from the unauthorized use or disclosure of an organization’s data and liabilities for violating privacy rights. An organization can manage and mitigate those risks by designing and implementing a suitable BYOD program.

Bradley Freedman is a partner at Borden Ladner Gervais LLP in Vancouver, and the Vancouver office Intellectual Property and Technology Law Practice Leader.

DECEMBER 2015 / BARTALK 15

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Bar Talk Material:

November 10, 2015

feature THE HONOURABLE JUSTICE DAVID MASUHARA

The Use of Technology in Courts A view from the Bench

A

s we await artificial intelligence that some say will neatly absorb all of the circumstances of a particular dispute, sort all of the necessary documents, discern relevance, assess credibility, find facts, apply the law or even advance new principles, and issue reasoned decisions, society will just have to make do with human lawyers and judges doing what they can with available technology.

I offer some brief observations on the use of technology and the courts.

Significant productivity has been realized in practice – from paperless offices to mega data document discovery systems to large scale multifactorial risk analysis platforms.

Courts, too, have advanced their processes, such as enabling e-filing, providing electronic order approvals, implementing real-time digital audio recordings of proceedings, providing for appearances by video and equipping courtrooms with advanced technologies. The Court of Appeal is expanding its capacity to receive appeal books electronically. Some courts have even opened Twitter accounts.

Judicial digital literacy and attitudes toward the use of technology in proceedings have progressed significantly from when I first joined the Bench. Technology issues arise regularly: qualification of forensic IT experts, theft or misappropriation of digital information, the mode

18 BARTALK / DECEMBER 2015

of digital disclosure, the use of digital animation, and the admissibility of digital information from social media sites. Questions arise on how to discern the original record, and whether digital information has been corrupted or altered.

Anton Pillar applications now concern digital information and meta data. Jurors are tempted to do their own research and now have the means at their fingertips to do so.

Invasion of privacy has become an increasing concern.

In a recent (unscientific) survey that I conducted of a representative sample of the Supreme Court as part of my presentation for the CBA Skilled Lawyer webinar series, “Persuasive Trial Advocacy – A Tech View from the Bench,” I asked judges to identify benefits and drawbacks to the use of technology in the courtroom.

Among the identified benefits was that enhanced technology can

improve access to justice through the convenience of remote appearances thereby reducing costs for litigants, lawyers and the court.

Some members of the court saw technology as an efficient/effective way to present openings and closings, as well as explaining documents and theories. It also assisted in accessing and searching documents. Judges found memory sticks containing written submissions, with hyperlinks to exhibits, transcripts, and authorities helpful.

At the same time, a significant majority in the survey agreed that using technology in a proceeding presented real risks to succeeding. What were some of the reasons?

The first observation is that more often than not counsel are heard to state just prior to employing some form of technology “I don’t know if this will work.” Counsel’s honest uncertainty is well founded as the majority of the judges surveyed had observed or encountered difficulties with the technology used. For instance, the equipment did not work and counsel could not correct the problem; the disk used by counsel was not compatible with his/her computer; counsel could not find the right document on the disk; there was only a single monitor for all to view.

Some judges noted a tendency in counsel to be overly focussed on the technology and lose awareness of other things occurring in the courtroom.

Some judges noted that it appeared that some counsel had not thought out in advance the specific benefit for the technology Continued on page 19 >>>

>>> Continued from page 18

employed and had just done so because they could. Some miscellaneous concerns were noted: the technology just provided a large data dump to the court, the storage device provided to the judge could not be accessed, counsel did not realize that additional and inadmissible evidence was on the video disk provided to a jury, leading to a mistrial; PowerPoint presentation improperly blended evidence with argument leading to delay in a jury case.

Judges also noted problems with witnesses who appeared by video.

On one occasion, a video witness had another person providing assistance out of view; the video and

audio feed from a distant location was poor quality; a connection could not be made with the foreign location. One concern was that something is lost in not having a real document to look at, or not having the witness in person before the court so that all of the senses can be engaged. A high percentage of judges have signaled serious reservations at having the bulk of a trial conducted through witnesses appearing digitally.

As well, some judges may not be comfortable with the use of technology. It may be unfamiliar or cause difficulties such as eye strain associated with being forced to stare at a monitor for hours as documents are introduced and discussed.

Decision-making is an individualized process and knowing what works best for the presider is an important consideration. If counsel wish to present a substantial part of the case electronically, they may wish to raise the question in Trial Management Conferences.

My personal view, and one I think is reflective of the judges surveyed, is that while technology can provide many benefits, it is not a substitute for substance and that humanity is the key constant in our courts.

The Honourable Justice David Masuhara is the Chair of the Joint Courts Technology Committee. The comments and opinions in this article are his own.

DECEMBER 2015 / BARTALK 19

features MATHEW BRECHTEL

Addressing Anonymity

Tools for the online world

I

n court proceedings, an anonymous defendant can present a serious problem: What defendant should be named? Who must be served?

The prevalence of online anonymity has brought these issues to the forefront for litigants addressing online wrongs. Fortunately, there are tools that our courts have adopted, and adapted, for the online world.

EVEN ANONYMOUS ACTIONS LEAVE A TRAIL

Often the first challenge is finding out who is responsible for a defamatory comment or posting of copyright protected materials. Identifying a defendant, after all, is the foundational step in commencing a claim. While comments or postings may not have a name attached, that does not mean that no identifying information exists.

The typical unique identifier tied to online conduct is an IP address, which is “a numerical number attached to each device.”1 The record that ties a specific IP address to online conduct is normally retained by the operator of the online forum – for example, Twitter, Instagram or Facebook.

The record that ties an Internet subscription to an IP address, however, normally rests in the hands of an Internet service provider, like Bell or TELUS. Matching online conduct to a point of access therefore normally requires disclosure from both such non-parties.

20 BARTALK / DECEMBER 2015

THE NORWICH PHARAMACAL CURE

Orders to obtain such information in the online context have drawn from the Norwich Pharmacal test, which has developed to address pre-action discovery, and has been applied to IP addresses in BC2, and in the Federal Court3.

Obtaining an order requires demonstrating: i. a bona fide claim exists; ii. the information is required in order to commence an action; iii. the third party is the only practicable source of the information; iv. there is no immunity from disclosure; v. a relationship exists with the defendant in which the third party was mixed up in the wrongdoing; vi. disclosure by the third party will not cause the third party irreparable harm; and vii. the interests of justice favour granting the relief.4 Given this standard, pursuing a Norwich Pharmacal order requires weighing the value of identifying a point of access against the cost of pursuing such an application.

A “SUBSTITUTE” OPTION – ONLINE SERVICE

Where the challenge is only serving a defendant, rather than proving

liability, substituted service may be a far more reasonable alternative to a Norwich Pharmacal order.

When addressing online conduct, BC courts have permitted substituted service to be done via online channels, normally through the medium used to commit the wrong, such as a private message sent through a webboard5. Service has even been permitted through Facebook6.

Given that the goal of personal service is certainty7, it stands to reason that where a defendant has chosen that mode of communication, such service would provide at least as much certainty as more traditional substituted service methods.

JURISDICTION

Of course, in the background in any claim for online conduct is the problem of jurisdiction.

While jurisdiction over online conduct may be difficult to assess, BC courts have provided some helpful guidance on when a claim or litigant are subject to our court’s orders, including the decision in Equustek Solutions Inc. v. Google Inc.8, which concluded territorial jurisdiction may result from online business activities conducted in BC, even without a physical presence in the province.

Wikipedia “IP address,” en.wikipedia.org/ wiki/IP_address Pierce v. Canjex Publishing Ltd., 2011 BCSC 1503 3 Voltage Picture LLC v. John Doe, 2014 FC 161 4 Kenney v. Loewen, 1999 CanLII 6110 (BCSC) 5 Burke v. John Doe, 2013 BCSC 964 6 vancouverobserver.com/news/kindermorgan-serves-legal-papers-pipelineopponent-facebook 7 Burke at para. 12 8 2015 BCCA 265 1

2

Mathew Brechtel is an associate in the Dispute Resolution + Litigation group at Bull Housser.

LISA RIDGEDALE

Electronic Discovery and Disclosure

E-Discovery – it’s no longer a new concept

O

ver 90% of documents are created and stored electronically. This is no longer a peculiarity of litigation. Litigants must have a readiness plan or they will be faced with an expensive and time consuming scramble to meet production demands.

Document production has long been at the core of the litigation process, and while the specific court rules have changed over time [the change in 2010 from Rule 26(1) to Rule 7-1(1)], document production in BC has always aimed to equip parties with key information while streamlining litigation.1 Over-disclosing documents (i.e. sending the other party thousands of unnecessary documents) can be considered as bad as failing to disclose key documents. In this already contentious context of document production, producing electronic documents can create challenges: Sheer volume – electronic records are easily created, widely distributed and exist in many copies. Electronic records also exist on various devices, servers, local hard drives, iPads, iPhones and smartphones.

Electronic documents contain more information than paper documents – metadata embedded in an electronic record includes a history of the creation and revision of the record.

Electronic documents are treated more casually than the composition of a paper document or formal letter

– companies who do not have a document retention policy often overlook the importance of preserving electronic documents.

In addition to the inconvenience of having to meet a production order in a short time frame, there are additional risks of not having a reliable system in place: Destroying documents a company is legally required to retain. A multitude of retention requirements exist in different industries. Inaccurate storage could mean that a record is destroyed pursuant to the wrong retention period.

Exposure to claims that the company improperly destroyed documents. If a company does not have a policy regarding the retention of documents, a court will be suspicious if it turns out that a company has destroyed a particular document or a document is missing.

Retaining client records that a company is legally required to destroy, such as an employee’s or customer’s personal data like social insurance numbers, credit card numbers, health data and financial records.

In Air Canada v. West Jet Airlines (2006) 267 D.L.R. (4th) 483 (On. S. Ct.), 75,000 electronic documents were the subject of a production order. Air Canada said that it would take too long and cost too much to review each document

one by one. The court disagreed and ordered Air Canada to review each of the 75,000 documents to determine which documents were privileged (not disclosable) and which relevant documents could be disclosed. One lesson in that case was that no company should have a batch of 75,000 documents and not know what they are.

In Gardner v. Viridis Energy Inc. 2014 BCSC 204 at para. 15, the court found that Viridis failed to list relevant documents and that an organized search of their hard drives would likely produce additional relevant documents.

In their production of additional documents, Viridis demonstrated to the court that they had applied a consistent keyword search and by doing so, made reasonable efforts to comply with the court’s order. The court agreed.

These are but two examples, but it is clear that where electronic document production is concerned, the stakes are high and the corresponding consequences are becoming more severe. Litigants can circumvent damaging results by creating and implementing a document retention system that will also act as a litigation readiness plan. Waiting until litigation to address discovery obligations in the digital age is ill advised. It is imperative that litigants implement an effective e-discovery management process to deal with all potential electronic evidence.

The BC Rules are informed in part by the Sedona Canada Principles, which have attempted to promote a common approach to electronic discovery rooted in proportionality and reasonableness.

1

Lisa Ridgedale is a partner at Hakemi & Ridgedale LLP. DECEMBER 2015 / BARTALK 21

news&events RESOURCES

LawLessons.ca

Chief Justice Beverley McLachlin at the opening of this year’s CBA Legal Conference in Calgary.

NATIONAL MAGAZINE

McLachlin: Where Do We Go From Here?

“The question is not whether the rules governing the legal profession should be liberalized but how.”

That was the clear message delivered by the Chief Justice of the Supreme Court, Beverley McLachlin, to delegates at the opening of this year’s CBA Legal Conference in Calgary.

Quoting from Lord Tennyson’s Ulysses (Come my friends, it’s not too late to seek a newer world) and drawing inspiration from the findings of the CBA Legal Futures report, McLachlin urged the legal profession to explore new ways to deliver legal services all the while protecting its core values.

22 BARTALK / DECEMBER 2015

“Flexibility and innovation, yes.

Abandonment of core professional values, never,” McLachlin said.

“Therein lies the challenge and the opportunity of the future.”

Chief Justice McLachlin discussed some concerns surrounding the legal profession and its way of doing business, from discontent within the legal profession and the toll long hours take on the mental health of lawyers to society’s unmet legal needs.

“Lawyers hold the exclusive keys to justice, and critics say they too often open those doors only to the privileged few.”

Read the full article

LawLessons.ca is a site for teachers. It has more than 25 lesson plans on a variety of legal topics as well as a number of learning resources.

It is where teachers book their court visits for the Justice System Education Program and where they can find a number of scripted and nonscripted mock trials that their class can perform either at school or in the courtroom.

The Justice Education Society also organizes a number of teacher and service provider workshops during the year.

CyberSafeBC.ca Most teens spend more than 30 hours a week online.

Whether they are doing a Google search to help them with their homework, chatting with their pals or playing a game, there are a lot of things that youth can do online. Being online certainly connects them to the world, but it comes with its own risks. Each of them has the right to have a good time on the Internet, but it’s important that they are cyber safe.

CyberSafeBC.ca is an online course for youth where they can learn about how to play safe and stay safe in the digital world.

KUDOS

Georges A. Goyer, QC Memorial Award

NEWS

While in Moscow While on summer vacation travelling with family this past July, CBABC elected member for Cariboo County, Heidi Zetzsche was walking one of the main streets in Moscow, heading toward the Kremlin, when she happened upon the entrance of the Moscow Bar Association.

Did You Know...

Jennifer Chow presents Mary Mouat, QC with the Georges A. Goyer, QC Memorial Award.

The BC Branch of the Canadian Bar Association recognized an outstanding BC lawyer at the 2015 Annual Bench and Bar Dinner. BC Branch President, Jennifer Chow, presented Mary Mouat, QC with CBABC’s highest honour – the Georges A. Goyer, QC Memorial Award. The annual Georges A. Goyer, QC Memorial Award was created in 1992 to recog­nize exceptional contributions to the legal profession, to jurisprudence or to the law in British Columbia. The award was established in memory of Georges A. Goyer, QC, a respected member of the BC Branch, who passed away after a courageous battle with cancer.

There is an official policy on the use of electronic devices in BC courtrooms, which is available online Last updated in October 2014, the policy applies in Provincial Court, Supreme Court and the Court of Appeal, and includes cellphones, tablets and laptops in its definition of electronic devices.

Many provisions relate to the use of electronics by members of the media, but the policy extends to all those present in BC courtrooms.

Key provisions include: Only practising BC lawyers and accredited media may send and receive text messages in Supreme Court and Provincial Court; any person may do this in the Court of Appeal No person other than an accredited media member may use an electronic device to take photos or videos, or to transcribe or record proceedings Use is not permitted where it generates any sound, or requires speaking into the device Not surprisingly, the bottom line for use of electronic devices is that it must be done discreetly and must not interfere with the proceedings.

Importantly, this policy is subject to a contrary direction by the presiding judge.

More info

DECEMBER 2015 / BARTALK 23

news&events CBABC WLF REPORT ON EVENTS

Ovarian Cancer Canada’s Walk of Hope and Annual Launch and Hot Tips from Hot Mentors On September 13, 2015, members of the CBABC WLF walked in the Ovarian Cancer Canada’s Walk of Hope, which took place at various locations across Canada. In BC, the WLF had walkers in both Vancouver and Victoria who together raised approximately $5,600 for Ovarian Cancer Canada while raising awareness of the fight against ovarian cancer.

On September 28, 2015, the CBABC WLF formally kicked off its 20152016 CBA year with its Annual Launch and Hot Tips from Hot Mentors event, featuring a panel of women lawyers and judges sharing their personal experiences and advice.

Briefly, the hot tips shared by the mentors were: 1. Sandra Jakab, BC Securities Commission: “Be yourself, the rest will follow” or, as Ms. Jakab emphasized (quoting Oscar Wilde), “Be yourself, everyone else is taken.”

2. Melody Robens-Paradise, Justice Canada: “Don’t compare yourself to others; you have no idea what their journey is about.”

3. Madam Justice Miriam Maisonville, Supreme Court of BC and Yukon: “There is almost no mistake you can make that cannot be fixed.”

4. Karen Jamieson, Murray Jamieson: “Recognize in your life what you can control and what you cannot control.”

5. Denise Duifhuis, Blakes: “If you focus too much on making things perfect, you are most likely going to miss out on other perfectly good solutions.”

6. Linda Robertson, Advocacy Legal Consultants: “Women need to take leadership training in order to learn how to ask for what they want; learn how to deal with gender communication differences; develop their own leadership style; embrace their self worth; understand the rules of the game and live according to their values.”

NEWS

CLEBC Update SELF-PACED ELEARNING CLEBC’s Self-Paced eLearning modules are an excellent vehicle for obtaining CPD credit. Easily accessible in one to two-hour programs, self-paced elearning provides videos, quiz questions, and reference materials. Thirteen modules are available: Accidental Waiver of Privilege

Cashing in Your Chips — Selling (or Purchasing) a Practice

24 BARTALK / DECEMBER 2015

Email

— Preventing a Mailstrom

Procrastination Social

Media: Managing your Reputation and Legal Brand The Bad Cheque Scam: Don’t Get Caught Understanding and Overcoming Perfectionism Understanding Undertakings Trust Accounting — Proper Practice and Pitfalls Corporate Records I — Resolutions and Minutes Corporate Records II — Minute Book Due Diligence Financial Modelling — Another Tool for Settling Family Law Cases Screening for Family Violence

Self-Paced eLearning modules are dynamic and interactive; you control the order in which you view the content, when and how often you view the content and reference materials, and when you answer or re-answer the questions.

This format is especially welcome if you do not have access to our usual course locations, or don’t have time to devote to a full-day course.

Visit the CLEBC website at cle.bc.ca for more information.

BC LEGISLATIVE UPDATE

ACTS IN FORCE

Current from August 19, 2015 to October 20, 2015 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org.

BUILDING ACT, S.B.C. 2015,

C. 2 (BILL 3) Bill 3 is corrected and sections 1 to 4, 6, 14 to 18, 19(1), (2) and (3)(a), 20, 21, 39 to 42, 45, 46, 48, 50 to 55 and 58 to 62 are in force September 18, 2015

BRANCH & BAR

Calendar

DECEMBER

2-3 21st Annual British Columbia Labour Law Review — Vancouver 3 CBABC PD Webinar: Your Client is on the Phone. There was a Workplace Fatality. And the RCMP are at Your Door 4 CBABC PD Seminar: Billing Strategies: Keeping Your Clients Happy While Looking After Your Bottom Line 5 Provincial Council Meeting — Richmond 5 Annual General Meeting — Richmond

JANUARY

22 Executive Committee Meeting — Vancouver

FORESTS, LANDS AND

NATURAL RESOURCE OPERATIONS STATUTES AMENDMENT ACT, 2015, S.B.C. 2015, C. 26 (BILL 25) Sections 30, 33, 34, 36, 37(a) to (e), 38 to 40, 42, 47 and 49, and section 31 insofar as it enacts section 10.1 of the Land Act, are in force September 22, 2015

MOTOR VEHICLE AMENDMENT

ACT, 2015, S.B.C. 2015, C. 13 (BILL 15) Sections 18 and 19 are in force September 22, 2015

OFF-ROAD VEHICLE ACT,

S.B.C. 2014, C. 5 (BILL 13) Sections 13(1)(b) and (c) and (2), 14(a) to (c), 15, 18 to 20, 26(1)(d), (e), (g) and (h), (2) (c), (d) and (f), 30(2)(h), (i) and (n) (i) and 50 are in force November 1, 2015

OMBUDSPERSON

AMENDMENT ACT, 2015, S.B.C. 2015, C. 30 (BILL 31) Section 1 is in force September 11, 2015

DECEMBER 2015 / BARTALK 25

news&events EVENT RECAP

2015 Mentorship Receptions at UVic and UBC

At UBC: Jennifer Chow presents the CBABC Entrance Award to John Trueman (above) and Melanie Begalka (not present).

At UVic (L-R): UVic CBABC Student Liaison Justin Wong, CBIA Law School Achievement Award winner Kathryn Costain, CBABC Entrance Award winner Sylvie Vigneux and CBABC President Jennifer Chow.

At UBC: Jennifer Chow presents the CBIA Law School Achievement Award to Jasmine Nielsen.

At UBC: Jennifer Chow presents the CBABC Entrance Award to Alexandra Catchpole.

26 BARTALK / DECEMBER 2015

announcements LAW FOUNDATION OF BRITISH COLUMBIA

provide

Supervising Lawyers’ Conference On October 5th the Law Foundation of BC held the third Supervising Lawyers’ Conference.

Thirty-five lawyers responsible for supervising legal advocates funded by the Foundation to provide assistance with poverty and family law issues attended the Conference.

The day-long conference was designed to: ensure that all supervising lawyers are familiar with Law Foundation protocols and the resources available for advocates;

updates on legal issues relevant to their supervision work; encourage discussion among supervising lawyers about their work; and elicit input from supervising lawyers about what they would like to see as priorities for Law Foundation work over the next five years.

The agenda for the Conference included: an update on the Law Foundation; discussions about client issues, professional responsibility and various insurance issues of interest to lawyers contracted by groups to supervise legal advocates; legal updates on issues relevant to advocacy work; a discussion about strategies

for supervising advocates, and information about resources and services available to both advocates and their supervising lawyers.

Feedback from Conference participants was very positive.

All participants appreciated the opportunity to network with other lawyers dealing with similar issues.

Many noted that the discussions about professional responsibility and the update about resources were particularly useful.

DECEMBER 2015 / BARTALK 27

professionaldevelopment

WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\

CBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, advance one’s career, practice and business. We pride ourselves bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management components for 2015 Law Society reporting.

Upcoming In-person Seminars

CBABC Full-Day Professional Development in Terrace

IN PARTNERSHIP WITH SURREY BAR ASSOCIATION

Date: March 13, 2016 Location: Northwest Community College, Terrace Speakers: TBA

Billing Strategies: Keeping Your Clients Happy While Looking After Your Bottom Line

A Friendly Reminder Deadline to report your 12 hours of continuing professional development (CPD) is December 31, 2015. At least two of the 12 hours must pertain to any combination of professional responsibility and ethics, client care and relations, and practice management.

Looking to complete your CPD or Family Law ADR Professionals maintenance accreditation? We can help!

Please contact us by email: pd@cbabc.org, or by phone: 604-687-3404, select option 5.

Date: December 2, 2015 Location: Eaglequest Coyote Creek Golf Course, 7778 - 152 Street, Surrey BC Speakers: Greg T. Palm, Hamilton Duncan Armstrong & Stewart Law Corporation; Kathryn Sainty, Sainty Law MARK YOUR CALENDAR – JUMP-START YOUR 2016 CPD REQUIREMENT IN PARTNERSHIP WITH THE CBABC FAMILY LAW – OKANAGAN & ADR – OKANAGAN SECTIONS

Two-Day Professional Development Conference on Big White (6 CPD Hours) Date: February 24-25, 2016 Location: Big White Ski Resort, Kelowna Speakers: Aaron Franks, Epstein Cole LLP; Lorne MacLean, QC, MacLean Family Law. More speakers to be announced....

Stay tuned.

(6 CPD Hours)

Upcoming Webinars Your Client is on the Phone.

There was a Workplace Fatality. And the RCMP are at Your Door Date: December 3, 2015 Time: 11:30 a.m. – 1:30 p.m.

Speakers: Eric V. Gottardi, Peck and Company; Tony C. Paisana, Peck and Company

Advocacy Gone Bad: Lawyers Bullying Lawyers

NO

BULLYING

Date: March 9, 2016 Time: 4:30–6:30 p.m.

Speakers: Lyle Gordon Harris, QC, Harris & Brun; Master Heather M. MacNaughton, Supreme Court of British Columbia

On Demand CPD Missed the live webinar? Check our library for available on-demand webinar repeats and e-learning modules.

RECENTLY ADDED WEBINAR REPEATS: Challenges

and Solutions in Mediation and Arbitration for Family Dispute Resolution Professionals Negotiation Basics – Ten Key Steps to a Successful Negotiation Outcome Technology for New Users: How to Use Technology in a New or Existing Practice for $200 a Month Understanding

28 BARTALK / DECEMBER 2015

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info@onpointlaw.com DECEMBER 2015 / BARTALK 29

barmoves Who’s Moving Where and When

SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND A HIGH-RESOLUTION PHOTO TO BARTALK@CBABC.ORG NOW. TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1512.

Guuduniia La Boucan

Guyle Clark

joined Devlin Gailus Westaway as an associate in their Victoria office. Her practice focuses primarily on Wills and Estates, Taxation and Environmental Law.

brings his personal injury practice and experience to Warnett Hallen.

He will focus on the rights of those injured in personal injury claims and ICBC claims.

Bahar Hafizi

Nikki Prihar

joined McCullough O’Connor Irwin LLP (MOI) as a partner of the firm. MOI is excited to be expanding its practice area to include Bahar’s expertise in debt and non-public financing.

After finishing law school in Ireland and working with Cowley & Company, Nikki has brought her talents to Warnett Hallen as associate lawyer.

Mark Lyons

Erin Hatch

Following a successful 25-year partnership at Klein Lyons, Mark Lyons has joined Warnett Hallen as senior counsel. He will work on complex personal injury and car accident claims.

has joined Harper Grey LLP as an associate with their Banking & Insolvency, Commercial and Family Law groups. Erin was called to the BC Bar on May 27, 2013.

30 BARTALK / DECEMBER 2015

newmembers September & October 2015 Lawyers Bennett M. Arsenault

Arsenault Aaron Vancouver Emma Bell

ICBCVancouver Estella J. Charleson

JFK Law Corporation Vancouver Brittany Goud

Victoria

Allison Maharaj

College of Dental Surgeons of BC Richmond Don Mainland

McMillan LLP Vancouver Ava G. Murphy

Woodward & Company LLP Victoria

Jessie N. Ramsay

Laura Jones

Camp Fiorante Matthews Mogerman Vancouver Dionne Liu

Harper Grey LLP Vancouver Rajit Mittal

Bull Housser Vancouver

Alyson Dorin

Johnson Doyle Sugarman Burnaby Mark Gill

Richards Buell Sutton LLP Vancouver

Bridget Belsher

Surrey

Caroline L. Chen

Vancouver

Robin Bigelow

Misun Cho

Harper Grey LLP Vancouver Laura I. Wilson

Guild Yule LLP Vancouver

Kamloops

Inder Biring

Kamloops

Vancouver Kamloops Kamloops

Jesslyn Chong

Port Coquitlam

Iqbal Birk

Patrick Chou

Law Students

Bronwen Black

Erica Chow

Emma Abdjalieva

Sean Bodnarek

Kamloops

Sin Lok Sunny Chui

Gia Bogett

Mollie A. Clark

Angela Boldt

Lauren M. Coady

Adam L. Bosma

Lauren Coles

Blake E. Bouchard

E Diana Courvant

Steffi Boyce

Nicola Crema

Kamloops

Vancouver Vancouver

Faisal Al-Alamy

Vancouver

Alexander J. Young

Cassels Brock & Blackwell LLP Vancouver

Vancouver

Alfonso Chen

Natalia Vaia Tzemis

Yelda Anwari

Jenna Kellie Rhia Clark

Melanie Begalka

Vancouver

Danielle Ching

Zain Ali

Dentons Canada LLP Vancouver

Kamloops

Edmond Chen

Kamloops

ICBC Vancouver

Amelia Boultbee

Danica Beck

Vancouver

Stephanie Benedict

Oren Adamson

Articling Students

Vancouver

Dusevic & Co. Burnaby

Marina Tran

Jones Emery Hargreaves Swan Victoria

Braedon Rock Beaulieu

Alexandra DH Catchpole

Kai Ying Chieh

Hilary A. Abraham

Rabjeet Walia

Vancouver

Kamloops

Warda Negyal

Baker Newby LLP Chilliwack McMillan LLP Vancouver

Erin Barnes

Kamloops Kamloops

Sepand Asefi

Kamloops

Emily K. Atkinson

Vancouver

Karenjit Aujla

Kamloops

Iqra Azhar

Kamloops

Surrey

Victoria

Richmond Kamloops Winnipeg Victoria

Vancouver

Jeshua Bray

Kamloops

Amanda Brown

Vancouver

Malcom Brown

Kamloops

Crystal A. Brown

Vancouver

Vancouver Vernon

Richmond

North Vancouver Victoria

Kamloops

Vancouver

Coquitlam

Domenic Cundari

Kamloops

Carl M. da Luz

Vancouver

Alessia D’Aversa

Kamloops

Jenna Davis

Kamloops

Nickolas Bailey

Zachary Burrill

Amélie de Gayardon de Fenoyl

Andrea Bajcetic

Andrew Butler

Hart de Loi

Mahisha Balachandran

Taylor Campbell

Nicole DeBartolo

Kamloops

Kamloops

Jeremy P. Bally

Courtney Campbell

Sean M. Baraich

Kevin Campbell

To view all new members, including Law Students, please visit

Kamloops Surrey Surrey

Vancouver Burnaby

Victoria

Kamloops

Vancouver Vancouver

Toronto

Kamloops

cbabc.org/bt/nm_1512.

DECEMBER 2015 / BARTALK 31

Help your clients plant their legacy today.

Find out how at vancouverfoundation.ca/advisors or call Kristin at 604.629.5186

A proud member of community foundations across Canada.

To find a community foundation near you, visit communityfoundations.ca

RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3