BarTalk | October 2015

DOWNLOADING, STREAMING OR TORRENTING | REVERSIONARY COPYRIGHT

O CTOBER 2015 | bartalkonline.org

Trademark and Copyright Law

news&events BARTALK EDITOR

Deborah Carfrae

UPCOMING CONFERENCE

2015 Canadian Conference on Elder Law

EDITORIAL BOARD CHAIR

Candice Alderson

EDITORIAL BOARD MEMBERS

The Journey of Aging – The Law and Beyond

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.

This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel.

The British Columbia Branch of the Canadian Bar Association represents more than 6,900 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

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Date: November 12-13, 2015 Location: The Pan Pacific Hotel, Vancouver

CBA ELECTION ENGAGEMENT KIT

ENGAGE. QUESTION. VOTE. As Canadians head to the polls, we want to put equal access to justice on candidates’ radar and publicly call for enhanced federal leadership in this area. In Canada, every person should have fair benefit of the law when a fundamental legal interest is threatened.

The Election Engagement Kit (cba.org/cba/equaljustice/election/default.aspx) contains questions, facts and key messages as well as an Election 101 primer on how members can engage and voice their concerns. Armed with this information and facts, we encourage you to: Ask questions when candidates come knocking on your door.

Attend and raise these issues at all candidates’ meetings.

Contribute to the online debate and tweet about it by using the hashtag #whataboutalex.

And, don’t forget to vote!

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2 BARTALK / OCTOBER 2015

Lawyer Referral Service Email: lawyerreferral@cbabc.org

OCTOBER 2015

VOLUME 27 / NUMBER 5

Contents

Departments

4

FROM THE PRESIDENT Hello Members

by Jennifer Chow

5

EXECUTIVE DIRECTOR Ignore at Your Peril

by Caroline Nevin

6

PRACTICE TALK Law at a Cross-Roads

by David J. Bilinsky

7

DAVE’S TECH TIPS

8

NOTHING OFFICIAL The Gums of August

by Tony Wilson

Sections

10 SECTION UPDATE

Intellectual Property and Technology Law

Immigration Law

Sexual Orientation and Gender Identity Community Forum (“SOGIC”)

CBABC Women Lawyers Forum 11

SECTION NEWS

Features 12 TRADEMARKING TO PROTECT YOUR BRAND

by Jessica Yeung and Janine Dethlefs 13 REVERSIONARY COPYRIGHT

by Pat Trelawny 14 PIRACY IN CANADA

by Scott Foster 15 DOWNLOADING, STREAMING OR TORRENTING

by Robert T. Vangenne 19 MUCH ADO ABOUT KRILL PILLS

by Nelson Godfrey

Guests 9

TRAVEL EXPENSES: OVERHEAD OR DISBURSEMENT?

by Brandon Hastings

20 10 TIPS FROM A NEW MASTER

by Sandra Harper

Inside This Issue Intellectual property laws are applied, and must adapt, to a constantly changing landscape. A number of articles in our October issue highlight this point, as do certain amendments to the Trademarks Act and Copyright Act that came into force on January 1, 2015. Whether it is new border enforcement measures, which may permit the owner of a Canadian trademark or copyright to block the importation of pirated and counterfeit goods into Canada or the right of a copyright owner to curtail infringement through the new Notice and Notice system available under the Copyright Act, the laws are changing and adapting. The various articles in this issue remind readers of the importance of protecting intellectual property rights and address recent decisions that will assist in such process.

News and Events 2 2015 Canadian Conference on Elder Law CBA Election Engagement Kit 18 Bench & Bar Dinner Form 21 2015/2016 Executive Committee 22 WLF Leadership Conference – Nov. 20-21, 2015 24 CBABC Wellness

Health & Wellness Tips

CLEBC Update 25 BC Legislative Update

Branch & Bar Calendar

Call for Crowdfunding and Support 26 Courthouse Libraries | BC Tips

2015 Pride Parade Photos

The Lawyers Show 2016

Also In This Issue

16 MEMBER SERVICES 27 LAW FOUNDATION OF BRITISH COLUMBIA 28 PROFESSIONAL DEVELOPMENT 29 DISPLAY ADS 30 BAR MOVES 31 NEW MEMBERS OCTOBER 2015 / BARTALK 3

FROM THE PRESIDENT JENNIFER CHOW

Hello Members

I am proud to be the first CBABC visible minority president

M

y goals this year are: (a) to represent diversity in leadership; (b) to speak out on issues affecting our young lawyers, especially student loan debt; and (c) to engage our elected members fully on pressing issues facing our profession. I thank you for this amazing opportunity to pursue these goals.

Let’s chat about diversity – inclusion, representation and equality. After all, diversity is the new gold standard. Our young lawyers expect it. They embrace it. They lead it. Our law students are brown, black, yellow, red, white and every colour of the rainbow. They are globally savvy – world travellers, trekking, volunteering and learning about cultural differences.

They are champions of the environment, the poor and the future. They are universal – linked in by phone, text, apps, more apps, Instagram and Facebook. They live and breathe equality and diversity every day – through practising yoga, eating phô soup, celebrating PRIDE (whether LGBTQ or not), and yes, lauding the ubiquitous Hello Kitty!

Our new lawyers reflect the changing demographics of our society. As a vibrant and vital professional organization, the CBA’s membership and leadership will also continue to reflect those changing demographics. I am keen to embrace these changes.

These are exciting times for our profession. Based on discussions within the diversity community, we recognize that the next generation will lead us on acceptance and inclusion. They have assumed, and rightfully so, that our profession, like society, is diverse and inclusive. They have assumed that differences will be embraced and fully respected. Let’s join in those assumptions. Let’s not anchor and weigh down our young lawyers with outdated stereotypes, or impose biases or barriers that are

4 BARTALK / OCTOBER 2015

consciously and unconsciously built and rebuilt. Let’s ensure that our pasts will not block their ascendance.

The new generation holds high expectations. Let’s support them in their efforts and make the legal world a better place to practise. On that note, your Executive Committee recently created a Young Lawyers Advocacy Task Force. More recently, the Newfoundland and Labrador government eliminated student loans and replaced them with non-repayable grants. Can we come up with an idea just as brilliant? I bet you we can. Will the provincial government take us up on our ideas? I certainly hope so.

The new Task Force will consist of CBA representatives from UBC, UVic and TRU, along with Young Lawyer Section chairs and a BC Law Society representative. Cochaired by me as president, and Erin Crocker as the Young Lawyers representative, we will join

forces to tackle timely issues such as student loan debt. The CBA’s successful REAL (Rural Education and Access to Lawyers) program continues to place second year law students in rural BC communities, leading some young lawyers even to set down roots in their newly chosen communities.

Following on REAL’s success, I have high hopes for the new Task Force. We will examine student loan forgiveness programs, including programs promoted by the American Bar Association and by our law schools. Although BC student loan forgiveness programs already exist to assist provincial Crown lawyers as well as doctors, nurses and other professions, our goal is broader. We hope to present a formal report to the provincial government with options and possible solutions.

Young lawyers are the CBA’s future. The new generation epitomizes diversity. Let’s be colourful. Inclusive. The CBA will continue to pursue larger issues such as access to justice, but this year, I also look forward to joining forces with our diverse young lawyers. Let’s embrace diversity by marshalling our forces and tackling issues affecting our young lawyers.

Jennifer Chow

president@cbabc.org

EXECUTIVE DIRECTOR CAROLINE NEVIN

Ignore at Your Peril

Listen to your body, family and friends

T

he legal profession is full of compulsive achievers and responsibility-takers. Perfectionism – or at least the concealment of weaknesses and flaws – is both normal and rewarded. Over-working is also rewarded. Financial and client/employer pressures are unrelenting, and self-criticism is an unescapable noise.

The WHO defines health as a state of physical, mental and social well-being, and not merely the absence of disease or infirmity. Wellness is the active process of becoming aware of, and making, choices to improve and protect your own health.

In a 2012 Ipsos Reid survey of 1180 lawyers from across Canada, stress/burnout and anxiety were identified as the #1 and #2 health/wellness issues among the legal profession.

Nothing else came close. Perhaps surprisingly, alcoholism and substance abuse were much further down the list.

On the good news side, lawyers are more likely to seek help from a medical or mental health professional than peers or family for health/wellness challenges. On the downside, they are very likely not to seek help at all. Somewhat ironically, the top reason given is “no time.”

Time is actually the one thing that health and wellness gives you more of… not just in terms of measurable productivity, but also in years of life and quality of life.

In the words of coach John Wooden: “If you don’t have time to do it right, when will you have time to do it over?” Now is the time to pay attention; to check-in with yourself and those around you – am I showing signs of physical, mental and emotional ill health? Am I investing enough time in my own wellness? And if not, what can I do to move it up the priority list?

Fortunately, the resources available to help on mental health issues like anxiety and stress have expanded rapidly over the past

year, especially those directed at lawyers.

For starters, look at cba.org/wellness for a large list of resources and, more importantly, a brand new online course created through a collaboration of CBA, Bell Let’s Talk and the Mood Disorder Society of Canada. “Mental Health and Wellness in the Legal Profession” is delivered by MDcme.ca, which is a consortium of all 17 of Canada’s medical schools. It’s an amazing new – and free – course available to all lawyers.

The CBA Ontario Branch, with leadership from past president Orlando da Silva, has created an entire “Opening Remarks” webpage, multiple “Mindful Lawyer” CPD webinars and great resource sheets on the topic of mental health. Check it out at oba.org/openingremarks.

Here at home, there are some terrific resources, including the CBABC Branch website at cbabc. org/wellness, the Lawyers Assistance

Program (LAP) at lapbc.com.

There are also two 1-800 numbers for immediate help: Call 1-800667-5722 to reach the CBA Legal Profession Assistance Conference (LPAC), and 1-800-663-9099 to reach the Law Society’s thirdparty personal counselling service, Optum Health at optum.ca. Note: you pay for this service through your Law Society fee, and can access it at any time, including their LiveWell Online Portal.

In the community, two local resources stand out: the Canadian Mental Health Association at cmha.bc.ca and the BC Mood Disorders Association at mdabc.net.

All of us experience – and often are motivated by – a certain amount of stress. The physiological reality is that prolonged experience of stress can have serious impacts on our bodies, thoughts, feelings and behaviours. The legal profession is not immune to this outcome and, as research shows, is in some ways more vulnerable. You don’t have to manage this alone – check out the available resources and take any steps you can in support of your own wellness.

Caroline Nevin

cnevin@cbabc.org OCTOBER 2015 / BARTALK 5

practicetalk DAVID J. BILINSKY

Law at a Cross-Roads

Are lawyers and entrepreneurs polar opposites?

I feel a little strange inside A little Dr. Jekyll, a little Mr. Hyde… r r

I

– Music, Lyrics and recorded by: Rory Gallagher

have been reading about entrepreneurs lately, particularly those interested in start-ups. I have been left with the impression that not only do lawyers and entrepreneurs speak different languages, they seem to approach problems differently.

Adriana Gardella, in Forbes magazine (onforb. es/1CQug0g), wrote an article entitled: “The Secret of Lawyers-Turned-Entrepreneurs?” In that article she interviewed Leslie Firtell who, after law school, founded Tower Legal Solutions, a company that offers legal staffing, consulting and compliance services for law firms and corporations. Regarding Ms. Firtell, Gardella wrote: “I don’t think like a lawyer, I think like an entrepreneur,” Ms. Firtell said. She explained that entrepreneurs must be willing to take risks that would make many lawyers uncomfortable. “Lawyers are tied to rules and deadlines, but as an entrepreneur, you never know what your day will look like,” she added.

Scott Edward Walker, in VentureHacks (venturehacks.com/ articles/hate-lawyers) in an article “Top 10 reasons why entrepreneurs hate lawyers” wrote as his #1 reason: Lawyers are often viewed as deal-killers because of their failure to set a positive tone and their annoying habit of raising all sorts of reasons why a particular deal won’t close or why a particular idea won’t work. One of the better lawyers I worked with at a firm often said: “Good lawyers are able to identify significant potential legal problems; great lawyers

6 BARTALK / OCTOBER 2015

provide solutions to those problems.”

OK so does that mean that lawyers can’t be entrepreneurs? The Law Insider (bit. ly/1LaCmpl) ran an article entitled: “Lawyers Moonlighting as Entrepreneurs” and stated that in the past, lawyers have been “mis-

Lawyers are tied to rules and deadlines, but as an entrepreneur, you never know what your day will look like. characterized as risk averse, unimaginative and perfectionists to a fault.” It then goes on to list five lawyers who have started innovative businesses.

So perhaps to turn a lawyer into an entrepreneur requires them drinking an elixir that, like Dr. Jekyll and Mr. Hyde, transforms

a risk-adverse lawyer into an innovative, creative and risk-taking business person.

Quora.com (bit.ly/1IQXHBV) in “If I want to become an entrepreneur, where do I start?” stated: “What you want, therefore, is an astute awareness of a need that is currently underrepresented in the market. You want to spot a product or service that can go places – original or not.”

Well, we have no shortage of legal needs that are going underrepresented in the current market. What we need are lawyers who are willing to think outside the box and start legal start-ups that can meet some of these needs. Perhaps we need to create an incubator environment that will mix lawyers with entrepreneurs in the same physical space that will allow each to cross-pollinate each other’s thinking.

We may end up creating a new group of lawyers who feel a little strange inside: a little entrepreneurial, a little lawyerish.

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 If entrepreneurs act and think differently, what resources are out there on the web to help you become an entrepreneur?

Inc.com did an article: “7 Powerful Secrets of Thinking Like an Entrepreneur.” (bit.ly/1vBWJUL) In this article of tips from successful entrepreneurs, they note that entrepreneurs think differently from most people (apparently not just lawyers). These secrets, such as “Resolve to Succeed” are fairly typical business advice. However, notwithstanding that entrepreneurs have been characterized as people who have to seize opportunities and react quickly to the marketplace, what was surprising to read was: “Business is moving faster than ever, but great leadership means slowing down to take time to focus on doing the things that are most important to your success.

Specifically, it means recognizing and valuing the people who you will encounter in your business and personal life, and bringing them along with you on your journey. You have much to learn from others, just as they can

learn a lot from you. As Richard Branson put it, ‘Other people have ideas also.’”

The good news is that law school did give us a leg up over many others when it comes to launching a business. It taught us to think. (anna.vc/about) In an article entitled: “Getting On The Right Line Of Thinking – Think Like an Entrepreneur” written by Anna Vital (who is a very interesting person in her own right), she stated: “As much as it seemed like a rip-off back in law school, I later realized knowing how to think is the most valuable thing. Period. You can do it yourself, for free, but be ready to painfully rethink everything you know, with a lot of courage. The reason is that by the time you figure out you have to unlearn, you are already packed with multiple identities – the child, the student, the spouse, the employee, the citizen, the parent. None of them teach you to be an entrepreneur. Or to see opportunity.

They just tell you what is required of you. To see opportunity – for that you have to think yourself. And, just as importantly, rethink and unlearn what you were told in your pre-entrepreneur life.”

You can read her infographic on how to get on the entrepreneur’s line of thinking at: fundersandfounders.com/themind-subway-entrepreneur-lineof-thinking/.

Nellie Alkap, in the Huffington Post (huffingtonpost.com/nellieakalp/how-to-think-like-anentr_1_b_7746256.html) Nellie wrote an article: “How to Think Like an Entrepreneur:” “I was raised by entrepreneurs (both my parents and grandparents). I launched my first business in law school, and together my companies have helped more than half a million entrepreneurs start their businesses.”

Nellie gave some advice that is very powerful and long reaching: “A common stereotype of an entrepreneur is a cutthroat businessman, always looking to get ahead at the expense of others.

But the best entrepreneurs I know are incredibly gracious and generous. They promote and recommend other people’s companies and products. They’re willing to offer advice. And, when they can’t help with a particular need, they dig deep into their rolodex of contacts to find someone who can.

To build an entrepreneurial mindset, you need to start pushing other entrepreneurs forward rather than holding them back.

Start building your network of professional contacts, interact with those you like, and recommend and share whenever possible. Don’t look at networking in terms of what other people can do for you, but what you can do for other people. In no time, you’ll have a strong community of trusted people around you.” © 2015 David J. Bilinsky

OCTOBER 2015 / BARTALK 7

nothingofficial TONY WILSON

The Gums of August

When you’re feeling long-ish in the tooth, get over it

W

ith apologies to the great historian Barbara Tuchman for my little malapropism (derived from the title of her book on the First World War), I’m starting to feel a little... oldish.

“Ish,” by the way, is a very useful suffix that has been dubbed the “international shorthand for a slight hedge.” It’s what we say when we deliberately want to be imprecise.

In any event, the first symptoms of being old-ish occurred earlier in the year when a Victoria friend I’ve known since Grade 1 announced on his Facebook page how many days he had until his retirement. This was quickly followed by another friend (from Kindergarten, no less) inviting me for golf because he’s now retired and golfs three times a week in tweedy Oak Bay. Then a few weeks later, my son bought tickets to the Pemberton Music Festival, telling me about all the great acts. I don’t think I recognized any of them. I started to panic, fearing that I had turned into my parents.

The symptoms of age grew worse at a firm retreat in June, when one of the partners (a decade younger than me), gave a speech about the inevitability of some of the older lawyers “slowing down” or “easing out” of practice and that various (younger) partners would be approaching the older ones about their plans for transitioning into retirement (lawyer succession and client retention being very legitimate topics in any firm). But then I looked around the room and realized that I was one of the old fogies he was referring to.

Lo and behold, a month to the day from my 59th birthday, a youngish partner popped in to have a quick chat about my plans for “transitioning,” as he put it.

“Transitioning?,” I asked. “I’m quite fine the way I am right now,

8 BARTALK / OCTOBER 2015

thank you very much and have no intention of following the lead of Caitlin (formerly Bruce) Jenner” – making the subtle point that “transitioning” has a far different meaning now than it once did and is much in need of a makeover.

So I’ve decided that a better word for lawyer “transitioning” is Retireishment™, given that it uses that wonderful “ish” suffix, just in case you want to hedge your bets.

I’ve trademarked it, and I’ll be licensing it for a fee.

The young-ish partner and I then took a long, metaphorically Trudeauish, walk in the snow and discussed my plans for the next 5 to 10 years, which was bad timing given that the stock market crashed and burned that very week.

Of course, coincidences being what they are, another symptom of age happened contemporaneously with the market crash. The retina in my right eye detached; the cause, the doctor said, was

age related. “You’re getting old,” he said… “these things happen to older people.”

Despite going through treatments that resembled a Wes Craven movie or Captain Picard being turned into a Borg, I did get to wear an eye patch like the “Arrow Shirt Man” and talk like a pirate for a few days, until my sight returned. But I’m wondering when the next wheel will fall off.

So... am I easing out, moving on, or otherwise riding off into the sunset? Nope. The market crash and the just announced recession will keep me around a little while longer than my Kindergarten and Grade 1 buddies. I’m happy to muse about Retireishment™, but retirement is not on my radar quite yet.

Besides, I have a nice little practice that keeps me and others in the firm busy enough, and I still like writing these columns. In particular, I very much enjoy that “other job” I do with the Law Society, which shock of shocks, actually requires me to be a lawyer.

Imagine that!

But perhaps the most important reason I plan to stay around for a while is how much I don’t like golf. I can recite Robin Williams golfing monologue by heart – “18 #*&%^ing times.” -ish.

Tony Wilson will be selling licences for the trademark Retireishment™ upon request. Oh, and he doesn’t speak for the CBA or the Law Society or SFU or the Arrow Shirt Company.

guest BRANDON HASTINGS

Travel Expenses: Overhead or Disbursement?

Interpreting Rule 14-1(5)

E

xaminations for Discovery (XFDs), applications, mediations, trial management conferences and trials: attendance is rarely optional. Yet, the current state of the law requires parties to bear their own costs associated with getting to and from such processes.

Supreme Court Civil Rule 14-1(5) insulates innocent parties from certain litigation expenses by providing successful parties with “a reasonable amount” for disbursements that have been “necessarily or properly incurred.” Currently, however, jurisprudence excludes travel expenses from the scope of Rule 14-1(5).

OVERHEAD IS NOT A DISBURSEMENT

A leading case on point, Parent v Lohia, 2012 BCSC 1677 (CanLII) (“Parent”) concludes “travel expense, mileage and parking... must be considered to be an item of overhead, not a proper disbursement.”

Parent was adopted in Park v Koepke, 2013 BCSC 1806 (“Park”), which stated: “local transportation and binding (office supplies) are considered to be items of overhead and I will not allow them.”

Neither Parent nor Park provide much discussion vis-à-vis what makes travel costs overhead, which raises an important question.

WHAT IS OVERHEAD?

The Court of Appeal provides a definition:

general expenses… as rent, lighting… it is in the nature of “overhead” costs that they are… costs which cannot be assigned with precision to an aspect of the business activity of the enterprise... [emphasis added].1 Take a widget factory that both creates and packages widgets for example. The cost of the raw material that goes into each widget can be assigned with precision to an aspect of the business: widget-creation.

In accounting, this is a direct cost. Conversely, items such as rent cannot be precisely assigned to either widget creation or packaging: an indirect cost. Allocation of indirect costs between activities is at best a guess, and as such imprecise.

The cost of materials in widget-making is analogous to travel costs in litigation. Both costs are assignable with precision, to particular activities of the enterprises bearing them. Travel costs are assignable to particular mediations, XFDs, etc., and material costs are assignable to the particular activity of widget-manufacture.

It is at least arguable, therefore, that travel expenses are not overhead, and as such ought to be considered a proper, recoverable disbursement.

EXPLICIT STATEMENT IN THE RULES

A statement in the Rules further militates in favour of travel expenses as a disbursement. The bottom of the tariff scale in appendix B of the Rules, provides: “In addition [to the above], reasonable travelling and subsistence expenses are to be allowed as a disbursement.” This statement appears on its own row, without an item number or a unit amount.

For completeness, it should be mentioned that this statement has been interpreted as part of tariff item 48 (Pardo v Young, 2013 BCSC 2203 at para 44), despite the fact that no other tariff item in the Rules has a modifying clause listed on a separate row. There is no discussion in Pardo of why this statement does not, as one might expect, stand on its own.

Rule 14-1(5) generally provides innocent parties with protection from certain direct financial costs of litigation. It is also part of a larger framework that creates a disincentive for unfounded and meretricious claims and defences. To the detriment of successful parties, costs related to travel have been interpreted out of Rule 14-1(5).

In light of an explicit statement in the Rules, and a striking dissimilarity between travel costs and overhead, however, this interpretation may be in need of review.

Han v 9938 Investments Ltd., 1995 CanLII 2030 (BC CA) at para 7

1

Brandon Hastings is a lawyer at Daryl Brown and Associates, and member of the Civil Roster of Mediate BC. OCTOBER 2015 / BARTALK 9

sections SECTION UPDATE

Keep Current A review of provincial Section meetings Intellectual Property and Technology Law Meeting in Review: June 24, 2015 Speakers: Christopher Wilson, Partner, Bull, Housser & Tupper; Scott Foster, Partner, Gowling Lafleur Henderson LLP; and Vincent Yip, Counsel, McCarthy Tétrault LLP Topic: An Open Table Discussion on Agent Privilege

Immigration Law Meeting in Review: June 24, 2015 Speakers: Meika Lalonde, McCrea & Associates (pictured left); Marina Sedai, Sedai Law Office (pictured middle); Steven Meurrens (pictured right); and Larlee Rosenberg, Barristers & Solicitors Topic: Lessons from the National Immigration Conference

Sexual Orientation and Gender Identity Community Forum (“SOGIC”) Meeting in Review: August 2, 2015 Topic: Lawyers with Pride 2015

Intellectual Property and Technology Law June 24, 2015, the IntellecuOn tual Property and Technology Law Section met for an open table discussion on privilege for trademark and patent agents. Christopher Wilson presented a history of the policy debate surrounding the extension of privileged agents, including summaries of submissions prepared by the Canadian Bar Association (CBA), Intellectual Property Institute of Canada, and the Federation of Law Societies.

Scott Foster surveyed various issues with the current law regarding agent privilege. Vincent Yip reviewed potential solutions to the issue, including those adopted in the United States and Australia.

Vincent also reviewed Bill C-59, which includes a new, statutory privilege similar to solicitor-client privilege. Following the presentation, attendees discussed potential issues with and benefits of the statutory expansion of privilege proposed in Bill C-59. Attendees also discussed the CBA’s role in guiding future policy on this issue.

The Intellectual Property and Technology Law Section will host its annual social event in Vancouver this upcoming fall. Details to be announced.

Immigration Law CBABC Women Lawyers Forum Meeting in Review: August 20, 2015 Topic: Snooker Night at the Vancouver Club

10 BARTALK / OCTOBER 2015

On June 24, 2015, the

uCBABC Immigration Law

Section held its final meeting of the year. Three presenters spoke about the CBA’s 2015 National Immigration Law Conference, which took place in Ottawa from May 7-9, 2015. Steven Meurrens spoke about Bill C-24 and changes to Canada’s citizenship

legislation, including to the residency requirement, the language test, the intention to reside in Canada requirement and revocation. Marina Sedai covered ethics. She reminded attendees of the importance of regularly revising retainer agreements and ensuring that they are complete, and recommended that counsel wipe their electronic devices before crossing borders. Meika Lalonde presented on Citizenship and Immigration Canada’s new Express Entry system for certain permanent residence applications.

She noted that there had been monthly fluctuations in the average points required to receive an Invitation to Apply, and discussed issues that users had encountered using the system.

Sexual Orientation and Gender Identity Community Forum (“SOGIC”) The Sexual Orientation and Gender Identity Community Forum (“SOGIC”) in BC organized the fourth “Lawyers with Pride” float in as many years as part of the Vancouver Pride Parade. Approximately 70 lawyers, law students, and law firm staff attended to dance, march and generally show support for the event. An estimated 650,000 people attended the Pride Parade this year, making it the world’s fifth largest Pride Parade. We are grateful for the support of our donors and the time of our volunteers, who ensured that the Canadian Bar Association in BC and the legal profession more generally were represented in one of Vancouver’s biggest cultural events.

u

CBABC Women Lawyers Forum In partnership with the

uFederation of Asian Canadian

Lawyers BC, the CBABC Women Lawyers Forum hosted its first ever Snooker Night at the Vancouver Club on August 20, 2015. Also invited to celebrate diversity and inclusivity at this summer social event were all members of the CBABC Aboriginal Lawyers Forum, the Canadian Association of Black Lawyers — BC Chapter, the South Asian Bar Association of British Columbia, and Sexual Orientation and Gender Identity Community Forum BC (SOGIC). More than 60 attendees mingled over food and drink, and participated in group Snooker lessons in the Vancouver Club’s historic billiards room. Snooker players of all levels (including many absolute

beginners) approached the tables with enthusiasm while meeting new colleagues, reconnecting with old friends and inspiring each other to promote equality and diversity in the legal profession.

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’s 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

To Our Section Volunteers: Thank you and Welcome With the conclusion of a great 2014/2015 Section term, we sincerely thank you for your commitment and support in keeping our Sections active and vibrant. We would like to extend a warm welcome to our new and returning officers for the 2015/2016 term.

Sections Annual Reports Annual Reports for 2014-2015 are now available on cbabc.org/Sections.

Please visit your Sections home page to see reports on last term’s meetings and highlights. Sections Annual Reports are compiled at the end of each Section year to provide members an at-a-glance summary of previous years’ activities.

Unlimited Access CBABC Membership includes unlimited access to all BC and National Sections and Forums. Enrol in as many Sections as you would like to receive all of the latest information for free.

OCTOBER 2015 / BARTALK 11

features JESSICA YEUNG AND JANINE DETHLEFS

Trademarking to Protect Your Brand And the benefits of doing so

T

rademarks are signs (including words, logos, slogans, shapes and sounds) that distinguish the goods or services of one entity from those of another.

In today’s marketplace, a company’s brand can become one of its most valuable assets. For some companies, their trademarks are their most valuable asset. Apple, the world’s most valuable brand, has a current brand value of $145.3 billion.

Everything identifying a business – including its name, product and service names, slogans and logos – together produces a distinct brand image among its customers. Distinctive branding gives a business a competitive edge and promotes customer loyalty. It is therefore important that the brand, and its associated value, be protected.

WHY REGISTER A TRADEMARK?

While trademark registration is not strictly necessary, it provides significant benefits over unregistered trademarks, including:

Protection throughout Canada regardless of actual geographical areas of use (an unregistered mark can be protected only in the areas in which the mark has been used and has acquired reputation).

Additional rights and remedies under the Trade-marks Act, 12 BARTALK / OCTOBER 2015

including the ability to sue for infringement.

Proof of ownership in infringement actions (owners of unregistered marks must prove title and distinctiveness of the mark and reputation acquired as a result of use of the mark).

Protection against imitation and misuse through means, including visibility during trademark clearance searches, and opposition and infringement proceedings.

A potential source of income for trademark owners in licensing transactions (while unregistered trademarks can be licensed, licensees generally like the mark registered).

Exclusive rights to use the mark across Canada for 15 years with no maintenance filing requirements (or 10 years under the new Trademarks Act), which may be renewed indefinitely.

Owners of registered marks have rights that can be asserted against junior users to stop use of conflicting marks. Owners of unregistered marks will need to prove their common law rights (and likely incur significant expense in doing so), and such enforcement action may not be successful.

A prime example of the importance of registering a trademark

as a way of protecting a business was seen in the Federal Court decision of Black & Decker Corporation v. Piranha Abrasives Inc., 2015 FC 185. While the facts of the case worked against Black & Decker (“B&D”) with respect to their applications for passing off (a cause of action for enforcing unregistered rights) and depreciation of goodwill, the court upheld their application for trademark infringement on the basis that B&D had a current trademark registration for the brand in ques-

tion and the defendant had infringed on this trademark. Accordingly, the court ordered an injunction against the defendant and awarded damages and costs to B&D. Note: Registering a corporate name at a Corporate Registry is not synonymous with obtaining a trademark registration. Corporate names are not trademarks, unless they are used as such. A corporate name (unless used as a trademark) does not confer its owner with enforceable rights.

Jessica Yeung is a trademark agent at Borden Ladner Gervais LLP. Janine Dethlefs is the Manager of Legal and Corporate Operations at Iridia Medical.

PAT TRELAWNY

Reversionary Copyright

The long arm of the dead

T

hat massive estate file occupying volumes of space in your office has finally come to an end.

The quirky legacies have been interpreted and fulfilled, the assets liquidated or distributed and the taxes paid. The accounts have balanced to the penny and been passed, the final bill has been rendered and it is now time to close the file for storage.

Not so fast. Have all of the assets been dealt with? With the explosion of blogs, selfies, and print on demand and vanity publishing services in the digital era, there has been a proliferation of photos, books, articles and other communications being generated and propelled with the use of the Internet. All of these may be considered “works” under the Copyright Act if they meet a minimal threshold of originality. If these works are subject to copyright protection and the rights granted by this Act, they constitute an asset, even if of questionable value. Have these assets been addressed in the estate administration?

More problematic is Section 14(1) of the Copyright Act, a legal boomerang. It provides that an author of a work that is subject to copyright, if the first owner, cannot give or assign such rights away in full during her or his lifetime.

The last 25 years of the copyright term of each work, which in Canada presently runs for the life of the author plus 50 years, “devolves

on” the author’s legal representative and reverts to and becomes the property of her or his estate.

Even if the author and owner of a work has transferred, assigned or licensed a work during his lifetime, he or she only has the power and right by reason of Section 14(1) of the Act to give away such rights for the period of his or her lifetime plus 25 years. For the final 25 years of the term, such rights kick back to the creator’s estate and heirs.

Does this reversionary provision apply to all works subject to copyright?

Section 14(1) only applies to those works which are not part of a collective enterprise or where, under

The statute overrides any written agreement or license to the contrary with one exception. An author may devise such rights by will and transfer them to a specific beneficiary. the provisions of the Copyright Act, the author is also the first owner of the work. If the work was created within the scope of a formal employment relationship, the employer will be the

first owner (Section 13[3]). However, the reversionary provision will apply to any work created by an author independently or for a third party under a contract for services or within a formal employment relationship where copyright has been reserved to the employee. As more conventional businesses shed employees and go to temporary workforces, outsourcing and independent suppliers, more works may become subject to this reversionary right.

Can an author contract out of Section 14(1) and transfer such reversionary rights? No – the Act expressly provides that “no assignment… or grant of any interest... is operative... to vest rights” beyond the initial post-mortem 25year period and any agreement purporting to transfer such rights is “void.” The statute overrides any written agreement or license to the contrary with one exception. An author may devise such rights by will and transfer them to a specific beneficiary.

While many “works” to which this submarine proviso apply will have no value or significance, there are many professionals to whom it will be relevant, including architects, engineers, musicians, academics, amateur historians or photographers and it may be another item to add to your wills or estates checklist of matters to address.

Pat Trelawny is a Victoria solicitor.

At present, he is attempting to practise less law and re-discover a lost tennis game. To date, he has been unsuccessful on both fronts.

OCTOBER 2015 / BARTALK 13

features SCOTT FOSTER

Piracy in Canada

New Canadian border measures

O

n January 1, 2015, amendments to the Trade-marks Act, the Copyright Act and the Customs Act came into force establishing new border enforcement measures to assist intellectual property rights holders in combating two types of infringement: copyright piracy and trademark counterfeiting.

Under the new system, the owner of a Canadian trademark registration and/or works protected by Canadian copyright, may file a Request for Assistance (“RFA”) with the Canada Border Services Agency (“CBSA”) and seek assistance from the CBSA in blocking the importation of pirated and counterfeit goods into Canada.

To rely on a trademark in a RFA, it must be registered on the Trademarks Register. No such requirement exists for Canadian copyrights. But, in practice, it is recommended that copyrights also be registered on the Copyright register so the rights holder will have a certificate of registration to attach to the RFA and also because a rights holder’s enforcement options are often improved by the acquisition of copyright registrations (see, for example, section 39(2) of the Copyright Act).

The RFA form is available for download on the CBSA website (Form BSF738). The RFA is valid for an initial period of two years and may be extended in two-year

14 BARTALK / OCTOBER 2015

increments upon request. If suspected pirated or counterfeit goods are discovered by the CBSA during inspection at the border, the CBSA can contact rights holders and provide them with information on the suspected shipment. The shipment will remain in detention for 10 days (five days for perishable goods) with a possible extension of a further 10 days. If the rights holder initiates court proceedings relating to the detained goods, and provides the CBSA with notice of such proceedings, the goods will remain in detention until the proceedings are disposed of or a court orders that they be released.

Under the new system, the owner of a Canadian trademark registration and/or works protected by Canadian copyright, may file a Request for Assistance with the Canada Border Services Agency.

While this is obviously a welcome development for rights holders in Canada, it is important for rights holders to understand their obligations after filing

a RFA. First, as a condition of accepting the RFA, security for costs may be required from the rights holder. While the CBSA has indicated a bond may be acceptable security, it is not yet clear if any other forms would be valid, or what amount of security may be required. Second, by filing a RFA, rights holders agree to be held liable for the costs associated with storage and destruction of the detained goods. The CBSA has advised that the storage costs for one shipping container may be $300 per day and the costs for the destruction of the goods may be approximately $1,700 per event.

Rights holders must therefore include these obligations and costs in their cost-benefit analysis. If, for example, an importer does not consent to the destruction of detained goods, a default judgment or summary trial may take several months and during that period the rights holder could be liable for tens of thousands of dollars in costs.

A similar system is in place in Europe and has proven to be a successful tool to block the importation of counterfeit and pirated goods into European countries. So, the benefits for rights holders in Canada, subject to the cost issues above, are clearly evident. Rights holders interested in filing a RFA should review their trademark and copyright portfolios in order to ensure that any RFAs filed with the CBSA provide the broadest possible protection.

Scott Foster is a partner at Gowling Lafleur Henderson LLP and advises on intellectual property matters.

ROBERT T. VANGENNE

Downloading, Streaming or Torrenting Is there a difference?

O

n January 1, 2015 the “Notice and Notice” system was implemented under the Copyright Act. So-called because upon suspecting infringement on the Internet, the copyright holder gives notice to the Internet Service Provider (“ISP”) then the ISP passes notice to the suspected end user, the registered Internet account holder. Notice and Notice is supposed to protect both parties’ interests.

The copyright holder has an opportunity to curtail infringement by providing notice to possible innocent or inadvertent infringers where there is a potential claim to be raised for copyright infringement. At the same time, the end user is not unduly deprived of access to legitimate material by having it removed under the guise of copyright protection without the benefit of some legal test being applied.

Over the past several months, many of these Notice letters have been sent to Internet users and the severe tone of the letters has caused many recipients to contact local lawyers seeking advice.

Statutory damages of up to $5,000 for infringement are clearly stated in the Copyright Act (at s. 41.26 for personal use) so the real question is when does it become clear that there has been infringement?

Liability under the Copyright Act follows intent. So downloading,

streaming or torrenting may be allowable if the user is dealing with copyrighted material they or the source provider have the rights to deal with. For example, backing up a copy of copyrighted material you already have the rights to or making a copy of a work for use on multiple devices is allowable, but only for personal use, not for commercial gain or to share with others; even for free. Therefore, only commercial operations which have negotiated license agreements with copyright owners are able to provide copyrighted material to others.

Per Copyright Act s. 29.23, storing a copyrighted work for later consumption is fine as long as the work was legally obtained

Statutory damages of up to $5,000 for infringement are clearly stated in the Copyright Act. e.g. not by circumventing technological protection measures, commonly called “digital locks.” The line is distinct and easy to understand for most: knowingly searching out an unlicensed file and downloading it is infringement.

Streaming through a reputable

site like Netflix or CBC, which have licenses for all the material available on their sites, is not.

New services, such as the currently free Popcorn Time, blur this distinction – in large part because of how the technology works. Popcorn Time is a torrenting service that acts and looks like the many other new streaming services now available for subscription in Canada. When accessing a torrent file, the end user is connected with multiple others who have the file already available and small portions are downloaded from each.

The key difference with Popcorn Time is that the file is not stored on your device longer than the software is open. The fact that it is not saved, combined with uncertainty over which of the multiple sources of the file were infringing sources, and which were not, lead many users to conclude they are not infringing copyright. This is seldom the case. As mentioned above, typically only commercial licensees will have the right to supply copyrighted material to others.

This is only one of many circumvention techniques commonly used today. The industry has changed rapidly in the past decade with increased options and the speed with which consumers may access copyrighted materials.

But greater copyright protection will come in the form of more and better options for individuals to consume copyrighted material in a convenient and timely manner.

Robert T. Vangenne, Vangenne & Company Law Corporation.

OCTOBER 2015 / BARTALK 15

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The Canadian Bar Association BC Branch and the Law Society of BC warmly invite lawyers and judges to attend the 31st Annual Dinner for the Bench and Bar.

Bench & Bar Dinner Join CBABC Executive and the Law Society Benchers in paying homage to those who have made outstanding contributions to the cause of justice in British Columbia.

The Dinner features the presentation of CBABC Georges A. Goyer, QC Memorial Award for Distinguished Service and the CLEBC Leaders in Learning Award. Tickets are limited. Don’t be disappointed; order early.

Name: Firm: Date: November 3, 2015

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feature NELSON GODFREY

Much Ado About Krill Pills

Reckitt Benckiser v. Jamieson

T

he Federal Court of Appeal, in Reckitt Benckiser LLC v. Jamieson Laboratories Ltd., 2015 FCA 104, recently affirmed a decision of the Federal Court granting an interlocutory injunction against infringement of a registered trademark. The decision may serve as an important benchmark for plaintiffs seeking interlocutory relief in trademark disputes.

Reckitt concerned an action by Reckitt Benckiser LLC and Reckitt Benckiser (Canada Limited) (collectively, “Reckitt”) against Jamieson Laboratories Ltd. (“Jamieson”), for infringement of the registered trademark MEGARED. The MEGARED trademark was registered in association with dietary and nutritional supplements, and was used by Reckitt in connection with a line of krill oilbased fatty acid supplements. Jamieson sold a line of krill and fish oil-based fatty acid supplements under the unregistered trademark “Omega RED.” Reckitt brought an action for trademark infringement and passing-off, and moved for an interlocutory injunction. The motion judge applied the classic tripartite test from RJR-MacDonald v.

Canada. As with most cases involving interlocutory relief, the decision turned principally on the issue of irreparable harm. On that issue, the court found that if

Jamieson’s activities were not enjoined, the Plaintiffs would lose distinctiveness in the MEGARED trademark due to use of the confusing trademark “Omega RED,” and that the resulting loss of goodwill would be irreparable.

Having also found in Reckitt’s favour on the other two stages of the RJR-MacDonald test, the injunction was granted.

The decision below may represent a departure from previous Federal Court jurisprudence. In Centre Ice Ltd. v. National Hockey League (1994), 53 CPR (3d) 34 (“Centre Ice”), the Federal Court of Appeal held that neither the loss of goodwill nor the existence of confusion, by itself, is sufficient to make out irreparable harm. Moreover, the Federal Court has regularly held that a moving party must provide “clear and not speculative” evidence that it would, in fact, suffer irreparable harm.

On appeal, in a judgment authored by The Honourable Chief Justice Noël, the motion judge was rebuked for delving too deeply into the merits of the case at the “serious issue to be tried” stage, but the decision below was affirmed (save for a variation to the implementation of the Order). Jamieson relied heavily on

Centre Ice in its appeal, arguing that Reckitt should be required to show “clear and not speculative” evidence of irreparable harm. But the Court of Appeal found that Reckitt should not be required to produce evidence of lost sales or price reductions because Jamieson entered the market first. The motion judge’s conclusions on loss of goodwill and irreparable harm were upheld.

Reckitt is noteworthy for brand-owners, as it may suggest a changing of the tides in Federal Court jurisprudence with respect to the court’s willingness to grant injunctive relief in appropriate trademark cases. The decision is also noteworthy for lawyers in British Columbia. Plaintiffs seeking interlocutory relief in trademark cases have in many cases chosen to pursue their disputes in British Columbia, as the threshold for proving irreparable harm has arguably been lower than the Federal Court standard reflected in decisions such as Centre Ice (consider, e.g., the recent decision in Woodpecker Hardwood Floors (2000) Inc. v. Wiston International Trade Co., Ltd., 2013 BCCA 553). After Reckitt, plaintiffs may be more willing to pursue interlocutory relief in the Federal Court, and other jurisdictional and procedural considerations may weigh more heavily in advising clients on their choice of forum.

Nelson Godfrey is a lawyer and trademark agent in the Vancouver offices of Smart & Biggar / Fetherstonhaugh.

OCTOBER 2015 / BARTALK 19

guest SANDRA HARPER

10 Tips from a New Master

Who still thinks like a lawyer

I

’ve been a master for just over a year. Here are 10 tips from the perspective of a rookie master who still thinks like a lawyer.

First, the usual caveat: my observations are my own and do not necessarily reflect the views of my fellow masters or other members of the court.

1. Beware binder bloat. Affidavits

are often too long, containing too many exhibits. Much time and effort goes into preparing the affidavits (not to mention your legal assistant’s time spent photocopying). These voluminous materials all go into the application record (the binder). We often see three-inch binders or worse for a 45-minute application. It’s difficult to tell how much of the material is worth reading in advance of the application. Consider trimming the affidavits and putting more time into preparing the legal basis of the notice of application or response.

This brings me to the next tip.

2. The “legal basis” set out in the notice of application and response must be adequate: a cursory listing of the Rules or statute is inadequate. The only time you might

get away with a barebones legal basis is when you’re sure the application will be unopposed. If you’re not sure, you must set out the legal principles that apply to your application and how the law applies to the facts. Put as much thought and 20 BARTALK / OCTOBER 2015

effort into the legal basis section as you do in preparing the affidavits.

Judges and masters are placed in a difficult position faced with inadequate materials: should we adjourn it or muddle through? If you think drafting a proper legal basis is too much work or your client might not want to pay for you to do a proper job, think again.

The following cases (cautionary tales) are required reading for any lawyer appearing in family or civil Chambers:

Zecher v. Josh 2011 BCSC 311

Dupre v. Patterson 2013 BCSC 1561 Yake v. Chamberlain 2014 BCSC 1582 3. Maintain your equilibrium. Con-

vey reason before passion. Do your part to lower the emotional temperature in the courtroom. Avoid taking extreme positions. Choose your battles carefully. Every lawyer has had clients who are difficult. Separate yourself from your client. Explain to your client that the golden rule applies and you will extend courtesies to the other side if you can. If your client is really getting to you, consider referring the client on. If you and your colleague on the other side of the file are not getting along to the point that it’s affecting how

well the clients are being served, consider asking another lawyer in your firm to take conduct of the file for a while.

4. Know master’s jurisdiction better than I do. If I ask you, “does

a master have jurisdiction to hear this application?” know that “I think so” or “I’m in your Honour’s hands” is not the right answer.

A master does not have inherent jurisdiction. Unless you want your application bounced, don’t put that in your legal basis. Please remember that it is not the registry staff’s responsibility to put your application on the right Chambers list: it’s yours. You don’t want to have to explain to your client that their application didn’t get heard today because you were in the wrong courtroom.

Explain to your client what a master is and what an interim order is.

Check out Practice Direction 42.

5. At Judicial Case Conferences (“JCC”), assume there will be a successful outcome and prepare yourself and your client for success. Success means resolution.

Explain to your client that your advocacy at a JCC is different from your advocacy at trial: you are there to advocate for settlement. Modelling flexibility and open-mindedness helps your clients to be flexible and open-minded themselves. I will be engaging directly with your clients at the JCC. Help them in advance to be prepared to speak for themselves honestly and respectfully.

Continued on page 21 >>>

Continued from page 20 6. Get used to dealing with selfrepresented litigants (“SRL”) — they’re not going away. Consider

having a case planning conference (“CPC”). A CPC can be very useful in sorting out responsibilities and timelines. Being informal, it can help the SRL understand the process without being on the receiving end of a Chambers application.

Don’t assume that a SRL will lose an application just because there’s a lawyer (you) on the other side.

7. Unbundled legal services can work: for you, your client and for the court. I have heard stories from

newly self-represented litigants who

2015/2016 EXECUTIVE COMMITTEE William (Bill) Veenstra SECRETARYTREASURER

are stuck going to court alone about the eye-watering legal fees they incurred before the retainer ran out (and their line of credit maxed out).

Think about helping your client with one or more of the following: drafting pleadings and affidavits, navigating the self-help resources and preparing for court. There are resources out there to help you set up a tightlyworded retainer agreement.

your submissions and leaving the three-inch binder with me to read.

8. Give accurate time estimates.

explanatory.

Yes, I know this is old hat. Everything you’ve ever heard or experienced about time estimates is true.

Take as much time as you need to make your submissions, but no more than that. You can’t solve a time estimate problem by galloping through

Jennifer Chow PRESIDENT Department of Justice Canada Vancouver

Alex A. Shorten PAST PRESIDENT Barrister & Solicitor Vancouver

Jenkins Marzban Logan LLP, Vanc.

Margaret A. Mereigh OFFICER Crown CounselCrown Law Division Vancouver

Alison Oxtoby OFFICER Entrust Law Group LLP Kelowna

Erin L. Crocker YOUNG LAWYERS REP

Krystle A. Gill EQUALITY AND DIVERSITY REP

Perry & Company Smithers

Cassels Murray, Family & Estates Law Victoria

9. Use your common sense. Know

when a personal or social problem is presenting as a legal problem and offer your client a practical solution.

Offer the court a practical solution too! It’s never too late to settle.

10. Be humble in victory and gracious in defeat. This one is self-

Sandra Harper, Master of the Supreme Court of British Columbia.

A master presides in civil chambers and registrar hearings and makes decisions about pre-trial motions and procedural orders.

Michael Welsh VICE-PRESIDENT Mott Welsh & Associates Penticton

Kenneth Armstrong OFFICER Stewart & Company Vancouver

Dierk Ullrich OFFICER Fasken Martineau DuMoulin LLP Vancouver

Read more about each Executive

OCTOBER 2015 / BARTALK 21

news&events UPCOMING CONFERENCE

CBA NATIONAL WOMEN LAWYERS FORUM

Vancouver 2015 Leadership Conference November 20-21, 2015 The National WLF has brought together an outstanding international faculty, for its third National Leadership Conference designed for women lawyers and professionals. The conference is called: “Creating Our Future” in recognition of the fact that change is coming to professional practice, and women need to be at the front of that change.

For the first time, the National WLF’s Leadership Conference is being held in Vancouver, and conference attendees will have a rare opportunity to hear renowned and celebrated women leaders. Conference speakers include former lawyers-turned consultants and public speakers:

Ritu Bhasin, Reva Seth, and Linda Bray Chanow. Bhasin provides training on key career advancement strategies such as empowered self-leadership; Bhasin’s many awards include the Women of Influence – Canadian Diversity Champion award. Seth has been featured on US and Canadian print and network television publications, and is the author of the best selling book MomShift: Women Share Their Stories of Career Success After Children.

Chanow is a nationally recognized authority on gender equity in the United States legal profession and recently co-authored the widely acclaimed publication, Power in Law: Lessons from the

2011 Women’s Power Summit on Law and Leadership. The Conference will also feature Supreme Court of Canada Justice Rosalie Abella and The Right Honourable Kim Campbell who will be speaking on the topic of women, power and the legal profession.

The conference program includes both plenary and smaller workshops, and includes the following topics for women at all stages of their careers: building power as part of a career strategy; increasing productivity to increase freedom, flexibility and influence; developing a grit and growth mindset to sustain career growth; harnessing organizational forces to support career goals; and mastering tools and practices needed to excel as a leader.

The program has been approved for 5.5 hours of CPD credits for practice management/ethics.

Thanks to the generous sponsorship of Blakes, Bull Housser, DLA Piper and Miller Thomson, as well as Goldcorp, the WLF is able to bring in exceptional speakers, some of whom have never spoken here before. Registration to date has been brisk and the conference is expected to sell out.

For more information and to register

Supreme Court of Canada Justice Rosalie Abella

22 BARTALK / OCTOBER 2015

The Right Honourable Kim Campbell

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INTERNAL REVISION

news&events Health & Wellness TIPS Get Organized

Good time management will help you take back control of your life – write “to do” lists, don’t put off tasks, organize your work systematically and delegate where possible.

Make it Social

Lots of research shows that good health behaviours are contagious. Be a positive influence on your peers and invite a friend to join you on a walk during lunch or an early morning workout.

Including friends will keep you committed and motivated, plus it’s more fun to tackle fitness in groups!

NEWS

CLEBC Update CANADIAN ELDER LAW CONFERENCE CLEBC is proud to partner with the Canadian Centre for Elder Law to present the 2015 Canadian Elder Law Conference: The Journey of Aging — The Law and Beyond. The conference will be held in Vancouver on November 12-13, 2015.

Connect across discipline and geography: the conference will be an opportunity

24 BARTALK / OCTOBER 2015

for lawyers to join other practitioners from law, social work, health care, finance, non-profit, and other sectors from across the country and around the world to talk about the challenges and issues involved in working with older adults.

Learn about key practice challenges and hot topics: The sessions will explore issues concerning powers of attorney and substitute decision-making, health care decision-making and end of life care, mental capacity and dementia, elder abuse and neglect, and other challenging subjects.

After taking this course you will: be better able to identify and address the legal issues that impact your older client; be familiar with recent trends and developments with respect to elder law topics such as health care decisionmaking, physician-assisted suicide, and elder abuse; and better understand the legal, practical, and ethical issues for clients with mental capacity issues.

Registration information is available at cle.bc.ca.

BC LEGISLATIVE UPDATE

ACTS IN FORCE

Current from June 24, 2015 to August 18, 2015 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org.

CIVIL RESOLUTION TRIBUNAL ACT, S.B.C. 2012, C. 25 (BILL 44) Sections 62, 63, 78, 83, 84, 87 and 93 are in force July 15, 2015

EDUCATION STATUTES AMENDMENT ACT, 2015, S.B.C. 2015, C. 24 (BILL 11) Sections 34 to 37 and 52 are in force July 15, 2015

FINANCE STATUTES AMENDMENT ACT, 2015, S.B.C. 2015, C. 8 (BILL 13) Sections 123, 125, 126 and 129 to 131 are in force July 1, 2015

FORESTS, LANDS AND NATURAL RESOURCE OPERATIONS STATUTES AMENDMENT ACT, 2015, S.B.C. 2015, C. 26 (BILL 25) Sections 1, 8, 10 to 12, 15 to 17, 19, 22 to 24, 26, 27, 29 and 48 are in force July 28, 2015. Section 46 is in force November 1, 2015

LIQUOR CONTROL AND LICENSING AMENDMENT ACT, 2014, S.B.C. 2014, C. 13 (BILL 15) Sections 23, 24, 31(i), 37(d) and 39 are in force July 28, 2015

MISCELLANEOUS STATUTES AMENDMENT ACT, 2015, S.B.C. 2015, C. 23 (BILL 23) Sections 54 to 61 are in force August 1, 2015. Sections 33 to 40 are in force July 30, 2015

WORKERS COMPENSATION AMENDMENT ACT, 2015, S.B.C. 2015, C. 22 (BILL 9) Sections 5, 6, 13 and 15 are in force August 4, 2015. Sections 2 and 10 are in force September 15, 2015

Help create a better future for everyone touched by cancer.

BRANCH & BAR

Calendar

OCTOBER

2 Pacific Legal Technology Conference — Vancouver 2 Welcoming Ceremony: The Hon. Madam Justice Lauri Ann

Fenlon — Vancouver 20 CBABC PD Webinar: Effective and Efficient Use of Arbitration in

Family Law – From Evidence to Appeal 28 - Dec 2 LAP: “Overcoming Procrastination” — Vancouver

NOVEMBER

3 Bench & Bar Dinner — Vancouver 12-13 2015 Canadian Conference on Elder Law — Vancouver 20-21 WLF National Leadership Conference — Vancouver 24 CBABC PD Seminar: Making Your Case with a Better Memory

— Vancouver 25 Federation of Asian Canadian Lawyers BC Gala — Vancouver 30 CBABC PD Seminar: Ethics in Action: Practice and Community — Chilliwack

Call for Crowdfunding and Support The Vancouver Writers Fest is crowdfunding, for the first time, in partnership with Amnesty International, to raise funds to bring Ensaf Haidar, wife of imprisoned Saudi blogger Raif Badawi, to Vancouver for a public event at St. Andrew’s-Wesley Church on October 24. The event, called 1000 Lashes, is part of the 28th Vancouver Writers Fest and will be moderated by CBC’s Stephen Quinn.

When your client remembers the BC Cancer Foundation in their will, they’ll be supporting world-renowned research in BC that is shaping the future of cancer care.

Please be sure to use the full legal name of our organization: BC Cancer Foundation Registration Number: 11881 8434 RR0001 For more information, please contact 604.877.6040 or legacy@bccancer.bc.ca.

1.888.906.2873 I www.bccancerfoundation.com

OCTOBER 2015 / BARTALK 25

news&events TIPS FROM

If the Library has been your go to place for up-to-date materials on intellectual property law, you may have noticed a few changes recently to the structure of our collection as we migrate to a more digital environment. The move to a more online-based model means that you will always be able to access the most recent version of a resource. It also means we can make our resources available to more people, particularly in remote areas.

FORMS AND PRECEDENTS: While our looseleaf version of Canadian Forms and Precedents is no longer being updated, we still have a large selection of intellectual property forms and precedents. You can now access this collection of precedents through our Quicklaw subscription. Sign on to Quicklaw using any one of our Public Access Computers and you will be able to access the collection of Intellectual Property Forms. This collection includes lots of great resources, such as sample assignments of rights and a statement of claim for infringement of copyright. Note, however, that some Canadian government forms which used to be included in our looseleaf collection may only be available through the Canadian Intellectual Property Office website.

TEXTS: To access the most recent publications on intellectual property released through Irwin Law, you just need to log onto our Lawyers’ Reading Room from your home or office (courthouselibrary.ca/readingroom.aspx). For lots of other texts, visit a Library branch to pick up a print version, or check out our Book in a Box service to request that a book be sent to you.

26 BARTALK / OCTOBER 2015

2015 PRIDE PARADE

announcements LAW FOUNDATION OF BRITISH COLUMBIA

The Law Foundation Funds Advocacy on Mental Health Issues Graduate Fellowships The Law Foundation will issue up to four graduate fellowship awards of $15,000 for the 2016-2017 academic year. Applicants must either be graduates of a British Columbia law school; members of the British Columbia Bar, students in graduate programs at UBC or University of Victoria (except one to earn an equivalency to practise law in Canada); or, residents of British Columbia. In order to be eligible, applicants must devote themselves primarily to their full-time graduate studies in law or a law-related area.

Applications will be assessed by the Fellowships and Research Committee composed of a minimum of three Governors of the Law Foundation and one representative from each of the law faculties of Thompson Rivers University, the University of Victoria and the University of British Columbia.

In assessing applications, the Committee will consider not only a candidate’s academic achievements but the likelihood of furtherance of the objectives of the Law Foundation and the possible benefits to the public of British Columbia from making an award to a candidate.

All applications and supporting material must be received at the Law Foundation offices by January 8, 2016. For more information about the Fellowships and the application process please refer to the Law Foundation website at lawfoundationbc.org (under Funding Available/ Graduate Fellowships).

As part of its funding for specific legal advocacy work, the Law Foundation supports various programs that advocate for people with mental health issues.

At the Motivation, Power and Achievement Society (MPA), the Foundation funds two Mental Health Court Workers who provide support and assistance to mentally ill accused appearing on charges at the Provincial Court (adult criminal court) in Vancouver. The Court Services Program helps clients understand the court process, ensures they have representation and makes efforts to help clients formulate a plan that will address the issues that contributed to their arrest and charges. Program staff often collaborate with lawyers, court staff and various social services to support clients. The Foundation has funded this program since 1983. In 2014, MPA advocates funded by the Law Foundation assisted more than 1200 clients.

The Kettle Society has a Mental Health Legal Advocacy Service, which has been funded by the Foundation since 2001 to advocate for people who self-identify as mental health consumers. The Law Foundation funded advocates help clients with housing and child protection matters. The housing advocate provides a range of services from providing information to representing clients at hearings. The advocate working on child protection issues supports parents with mental illness and is often a liaison between them and the Ministry of Children and Family Development when the Ministry has become involved with the family. Both programs also provide education to government and community organizations about how mental health issues can affect a person’s access to justice. The program is available to all mental health community members without geographic restriction. Often clients assisted by the Kettle Society have trouble accessing other advocacy services because of their disability. In 2014, the Kettle Society advocates assisted more than 2100 clients.

The Foundation also funds a Systems Negotiator position at the Watari Research Association (Watari) to support offenders with mental health issues whose cases are being adjudicated at the Downtown Community Court (DCC) in Vancouver. This position is part of the DCC’s Mental Health Program, which provides clients with support from a probation officer, a psychiatric nurse and the Systems Negotiator, with weekly assistance from a psychiatrist. Each participating offender has a specific intervention plan developed for them, designed to address underlying issues which may be contributing to their criminal behaviour. If the offender successfully engages with the plan during that time, the charges are stayed when their case is brought back before the judge. The Foundation started funding this position in 2008.

The work funded by the Foundation to support mental health consumers provides them with support designed to address their legal needs and improve their access to justice.

OCTOBER 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 in bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management component for 2015 Law Society reporting.

Upcoming In-person Seminars PRESENTED BY CANADIAN BAR ASSOCIATION BC BRANCH

Making Your Case with a Better Memory Date: November 24, 2015 Location: White Spot Restaurant, 405 Dunsmuir Street, Vancouver Speaker: Paul Mellor, Training Consultant, Success Links

Upcoming Webinars CBABC Full Day Professional Development in Terrace (6 CPD hours)

Date: February 13, 2016 Location: Northwest Community College, 5331 McConnell Avenue, Terrace Speakers: TBA

IN PARTNERSHIP WITH THE CHILLIWACK BAR ASSOCIATION

Ethics in Action: Practice and Community Date: November 30, 2015 Location: Capital Restaurant, 45766 Kipp Avenue, Chilliwack Speakers: William M. Finch, QC, Baker Newby LLP; Delwen Stander, Stander & Company

FAMILY LAW ADR PROFESSIONALS SERIES – MODULE 3:

Effective and Efficient Use of Arbitration in Family Law – From Evidence to Appeal Date: October 20, 2015 Speakers: Karen F. Nordlinger, QC, Aaron Gordon Daykin Nordlinger LLP; Lisa J. Hamilton, Hamilton Fabbro Moderator: Kathryn S. Sainty, Sainty Law Watch Modules 1 and 2 of this series by Webinar Repeat, and complete 100% of the required six hours of LSBC maintenance accreditation for Family Law ADR Professionals: MODULE 1: Challenges and Solutions in Mediation and Arbitration for Family Dispute Resolution Professionals MODULE 2: Understanding Negotiation Basics – Ten Key Steps to a Successful Negotiation Outcome

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

RECENTLY ADDED WEBINAR REPEATS: Information Be

Careful What You Wish For: End of Life Planning in a Shifting Legal Landscape

Billing The All

Governance for Law Firms: When Paper Thinkers Go Digital

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

Trials and Tribulations of Dealing with Self-Represented Litigants

In A Day’s Work: A How-To Approach for Employer Codes of Conduct

Violence

Screening for ADR Professionals – Red Flags, Warning Bells and Practical Tips

28 BARTALK / OCTOBER 2015

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Candidates must be willing to travel. Applications meeting the requirements specified in the selection criteria at www.fct-cf.gc.ca must be received by 23:59 (PST) on October 15, 2015, for the position in Ottawa and by 23:59 (PST) on November 15, 2015, for the pool of positions in Ottawa, Montréal, Toronto and Vancouver.

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info@onpointlaw.com OCTOBER 2015 / BARTALK 29

barmoves Who’s Moving Where and When Raylene Smith

Will Green

has joined Harper Grey LLP as an associate with their Insurance Law group. Raylene was called to the BC Bar on August 14, 2014.

joins Hammerberg Lawyers’ Business Law group, representing clients in corporate and commercial legal matters, and advising in the areas of real estate and strata property law.

Karen P. Maki

Fraser Hartley

has rejoined Shergill & Company Trial Lawyers, where she will continue to practise Personal Injury, Civil and Commercial Litigation.

has joined Edwards, Kenny & Bray LLP as an associate. Fraser has a general corporate/commercial practice.

Michael Drouillard

Scott Howie

has joined Harper Grey LLP as an associate with their Business Law group. Michael was called to the BC Bar in May, 2012.

has joined Edwards, Kenny & Bray LLP as an associate. Scott has a general corporate/commercial practice.

30 BARTALK / OCTOBER 2015

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_1510.

Julie A. Gagnon has joined Waterstone Law Group LLP’s Langley office. Julie will be practising Personal Injury and Commercial Contract Litigation.

newmembers July & August 2015 Regular Members

Articling Students

May Allingham

Andrew Alvarez Brown

Whitelaw Twining Law Corporation Vancouver Reut Amit

Singleton Urquhart LLP Vancouver Kimberley Bradley

Peter Archibald, QC from DLA Piper (Canada) LLP’s Vancouver office has been appointed as vice-chair of the BC Labour Relations Board.

Spraggs & Company Coquitlam Marcel Daigle

Singleton Urquhart LLP Vancouver Valerie Frank Parsons

British Columbia Institute of Technology Burnaby Sara Hanson

Janet Gartner has joined the partnership of Gudmundseth Mickelson LLP. Janet continues to practise civil and commercial litigation.

Moore Edgar Lyster Vancouver Jason I. Jaffer

Affleck Hira Burgoyne LLP Vancouver Matt Laszuk

Farris, Vaughan, Wills & Murphy LLP Vancouver Mollie J. Margetts

Lovett & Westmacott Victoria Olivia J. Nowland

Robin Bennett has joined Hakemi & Ridgedale LLP and will be advising individual and corporate clients on a broad range of commercial litigation matters, including real estate and construction disputes.

Spraggs & Company Coquitlam Patrick O’Neill

Owen Bird Law Corporation Vancouver Marsh Ram Pitzman

ICBC New Westminster Nikki Prihar

Betty Wu has joined Hakemi & Ridgedale LLP and brings experience in all areas of commercial litigation, including estate litigation, wills variation actions and intellectual property disputes.

McCarthy Tétrault LLP Vancouver Tubosoye M. Brown

New Westminster Cobi Dayan

Miller Thomson LLP Vancouver Sasha Gritt

Northland Properties Corp Vancouver Erika Lai

Miller Thomson LLP Vancouver Gerry H. Li

Koffman Kalef LLP Vancouver Wesley Liden

Sangra Moller LLP Vancouver Joel E. Marion

Mulroney & Company Victoria

Law Students Jordan Adam

Vancouver

Robin Bennu

Vancouver

Elizabeth Cameron

Vancouver

Kayla C. Cheeke

Victoria

Mary M. Cheung

Vancouver

Ryan D. Chew

Vancouver

Kathryn E. Costain

Victoria

Warnett Hallen LLP Vancouver

Erika Decker

Brett R. Sanguin

Jon U. del Castillo

Benson Law LLP Kelowna Sharon Singh

Bennett Jones LLP Vancouver Eric R. Smith

Morahan & Company Victoria

Victoria

Vancouver

Taylor M.A. Dignan

Victoria

To view all new \\

members, including Law Students, please visit

cbabc.org/bt/nm_1510.

OCTOBER 2015 / BARTALK 31

Help your clients plant their legacy today. Be informed.

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

vancouverfdn

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