BarTalk | October 1990

NEWSLETTER

President's Report

gr~~61AN BAR B.C. delegates show active support at annual meeting ASSOCIATION, B.C. BRANCH

OCTOBER 1990 VOLUME 2 NUMBER?

Traditionally the Branch president takes office in late August at the National CBA meeting. This year, I had the pleasure of doing all the work of president for almost the complete month of Sep- 路 ternber before officially taking office on September 27 in London, England, while Russell Lusk had all the fun.

But it was worth the wait. The National meeting was superbly organized with a full agenda and excellent presentations.

The Branch reception held at B.C. House and cohosted by the Agent General Garde Gardorn and out-going Branch President Russell Lusk was one B.C. Branch President Terry LaLiberte (left) thanks Russell of the highlights of the B.C. delegates attending Lusk for his year of work on behalf of the Branch members. the annual meeting.

After lively debate, the resoluplete review of the national The delegates will long rememurging abolition of the Fedresolutions can be found in this tion HIGHLIGHTS ber the moving Ecumenical month's issue of the National. era! Court was tabled to the Naservice in the magnificent Westtiona! Mid-Winter meeting in The Branch's report, Law Reform minster Abbey, the opening Regina.

However, the resoluSECTIONTALK/3 ceremonies so ably chaired by for Sustainable Development in tion on tax revenue from interB.C., also was presented at the National President John Jennational shipping was not disannual meeting and will be nings in the historic Westmincussed as no one was present to LEGISLATIVE ster Hall, the many splendid re(Please turn to page 2) speak to the resolution. A cornUPDATE/5 ceptions held in the venerable Inns of Court and the annual Dinner and Dance held in BRANCH Grosvenor House.

BUDGET/10 The business and section meetings were well received with interesting and provocative LOCUM including an presentations SERVICES/11 analysis of the Canada-U.S. Free Trade Agreement and EuPAISLEY rope 1992 and a Young Lawyers CONFERENCE/13 Conference.

Of the twelve policy and public interest resolutions debated at RECYCUNG the Annual meeting, three were HOTUNE/13 submitted by the B.C. Branch.

The Branch resolution urging the government to proceed imDATES TO mediately with introducing NOTE/14 Phase II of the Copyright Act to Russell Lusk (left) presents a stylized native carving of the eagle to Agent General provide special exemption for Garde B. Gardom, Q.C., and Mrs. Gardom at B.C. House. The carving was done by law libraries was approved.

North Vancouver artist Richard Baker and mounted and framed by Framagraphics.

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President's Report (continued from pagel) brought forward for detailed discussion at the National MidWinter meeting in Regina in February 1991.

The 1990/91 B.C. Branch program year

Branch and its committees to ensure that not only the Bar's needs are met but also the administration of justice in British Columbia is conducted in a fair and efficient manner.

The Canadian Bar Association's strength is in its membership. I invite you to contact me if there are any matters in which you think the association should take initiatives or play a greater role.

As Branch President, I would sincerely like to thank Russell Lusk and his wife Corinna for the magnificent job they did during Russell's time as Branch President. Russell had an extremely busy year and most ably represented our members throughout his term.

I am also pleased to announce that I have organized a new Governmental Relations Committee to be chaired by Russell Lusk. The Committee is charged with the task of estab- 路 lishing a closer liaison with our elected members at all levels of government. In particular, this Committee will provide pro-active response to government issues and will deliver the Branch's messages to government and governmental agencies. I feel that we as a profession and an association have been remiss in getting our position on many vital issues before government and the public.

The area of Legislation and Law Reform will continue to receive high priority within the Branch.

Our new Legislation and Law Reform Officer Ann McLean is already very busy providing briefing information to the Executive and the Legislation and Law Reform Committee through Chairman Bonita Thompson. McLean will also be a valuable resource person for Sections and Committees as they prepare their reports and submissions in the coming year.

The changes in the court system which have been implemented in recent years and those that are about to be made, will continue to be a major focus of the

Justice Minister Kim Campbell speaks to B.C. Branch Provincial Council members

"I am proud to be a B.C. lawyer appointed as the first woman to hold the office of Minister of Justice," stated Kim Campbell at the Sept. 8 Provincial Council meeting.

Campbell's noted that areas in which the Justice Ministry are currently focused include firearm control, aboriginal justice, human rights, child sexual abuse and family violence.

Campbell advised Council members the Yukon govern-

ment will host a Federal/Provincial conference in 1991 on aboriginal justice. As well, a major conference will be held in the Spring of 1991 to examine the role of women in the justice system. Both conferences will be oriented to those who prac.tice, make and adjudicate the law.

President Terry LaLiberte extended his sincere appreciation to the Justice Minister for speaking to Council during a very busy time in her schedule.

Opportunity to participate in active committee The Legislation and Law Reform Committee is seeking two or three new members.

The Committee, which recently expanded its mandate, coordinates the activities of the Branch in the areas of law reform and legislative change, as well as providing information to the members and the public.

B.C. Branch members interested in joining the committee can contact Chairperson Bonita Thompson at Singleton, Urquhart, MacDonald, telephone 682-7474.

of section 10, unless the parties intend it to attach at a later time, in which case it attaches in accordance with the intention of the parties. NOTE that if the parties agree on postponement the secured party obtains no interest in the meantime floating or otherwise. '

Major changes surroun~ing floating charges 1n new PPSA Professor Jacob Ziegl of the University of Toronto Law School addressed Banking and Insolvency Law Section members on the new Personal Property Security Act (PPSA).

Ziegl co~mented that perhaps the most Important change introduced by the new act is that it abolishes the distinction between fixed and floating charges and all the vast learning that surrounds this distinction at common law. The act only recognizes a security interest which has attached to the collateral. Once it has attached the normal consequences flow ' ~rom this event. The security mterest does not cease to become attached because the deb.tor is permitted to carry on busmess and to deal with the collateral in the normal course of business.

The key section which has ?"ansformed the equitable floatmg charge is section 12(1). This pro~}.des th~t a security interest,. mcludmg a security interest m the nature of a floating charge", attached when (a) value is given, (b) the debtor has rights in the collateral, and (c) the security interest becomes enforceable within the meaning

For banks and other lenders that make extensive use of fl.oating charges, these provisions alone are worth their weight in gold. Ziegl pointed out th~t the B.C. act is merely followmg the similar, if not identical, legislation in other ~rovinces. However he questioned whether this provision was a wise one. He queried whether the floating charge creditor should be allowed to have its "cake and eat it too."

Ziegl, who was the former chairman of the joint committee that drafted the Uniform Personal Property Security Act, 1982 and was able to comment on the intentions of the drafters of the new act. The view of the drafters of this legislation was that the equitable floating charge never achieved its goal of protecting the claims of other creditors before the floating charge became crystallized.

This was because negative pledge clauses were held to be binding on subsequent secured parties who had actual or constructive notice of them.

Unsecured creditors were only able to trump the floating charge if they could complete their executions before the floating charge crystallized or the debtor was put in bankruptcy, both difficult achievements. It seemed therefore to the Canadian drafters that if a cushion for free assets was to be secured for the benefit of unsecured creditors, it would have to be accomplished by other means and outside the PPSA legislation.

Practice of many banks runs afoul of the Interest Act The case of Royal Bank of Canada v. Larry Creighton Properties Corp. (1989), 65 A.L.R. 178 (C.A.) underscores the problems that can arise when banks rely upon promissory notes signed by the customers.

Ian MacLeod of Lawson Lundell commented on this case to members of the Banking and Insolvency Sections.

In this case four loans were granted in the respective amounts of $2,500, 10,000, $10,000 and $5,000. Only one note for $10,000 could be located, with interest at a fixed rate of 13.5 per cent.

The borrower claimed no other agreement other than to pay a fixed rate on the other notes but could not remember what that fixed rate was. Notwithstanding the fixed rate on the one note, the bank contended a floating rate on all of the notes according to the bank's then current practice on demand notes.

Bank records indicated varying rates of interest had been charged at various times and on the various notes.

The Alberta Court of Appeal held that notwithstanding the bank's practice a fixed rate existed at 13.5 per cent on the one located note. The Court referred to section 3 of the Interest Act which reads "whenever any interest is payable by the agreement by parties or by law, and no rate is fixed by the agreement or by law, the rate of interest shall be 5% per annum."

Accordingly, the interest payable on the three remaining

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SectionTalk (continued) notes was held to be 5 per cent.

MacLeod raised several points to bear in mind when advising banks about their "paperwork practice." He noted that many banks do not seem to use a standard form agreement regarding interest rates but they should. The same applies to "offer of loan" letters. If such letter does not exist it is arguable that no agreement regarding interest rates exists.

Banks should be careful to keep copies of all notes even after they are repaid.

Drafting ti.Ps for inco~orahng dispute resolution provisions into contracts Bonita Thompson, Q.C., made a presentation to the Alternative Dispute Resolution Section on drafting considerations for incorporating dispute resolution provisions into contracts.

Speaking first on basic concepts, she advised that she was encouraging parties to set a tone in their contracts by making a specific commitment first to a negotiated settlement, then to mediation if unsuccessful and, as a final resort, to arbitration.

Although the mediation process cannot be enforced in the same way as arbitration, an agreement to refer disputes to structured negotiations with the assistance of a mediator is often helpful.

She made several suggestions for mediation clauses: 1) have the appointment of a mediator referred directly to a credible service provider

2) put a specific time period, extendable by agreement, for the mediation to be completed

3) don't include rules of procedure because a skilled mediator will guide the proceedings.

In Thompson's opinion, an arbitration clause should not be used unless the parties have agreed to mandatory arbitration. In the case of arbitration clauses, she considered it to be absolutely essential to incorporate rules of procedure, which she recommended should be incorporated by reference rather than included in the agreement.

Incorporation by reference allows the parties to use a neutral set of rules and rely on the expertise of an institution such as the B.C. International Commercial Arbitration Centre.

Finally, she described an interim dispute resolution process for large contracts using a referee. This concept has recently been incorporated into the new B.C. Hydro construction contracts.

The process provides fast access to an independent, experienced person to resolve disputes as they arise. The review of a dispute by the referee is made without an oral hearing.

The contract provisions and tripartite services agreement with the referee set out basic natural justice principles to be followed.

This fast track process was designed to provide a credible process to resolve disputes at an early stage thus reducing cost and delay.

Supreme Court Chief Justice Lamer espouses importance of criminal law In addressing members of the Vancouver Criminal Justice Section on the practice of criminal

law, Mr. Justice Lamer commented that the fact that a country has a bill of rights or a constitution does not speak of the country or tell you much of that country.

In order to examine whether that country is a free and democratic society you must examine the criminal justice system. The way in which a country administers its criminal law discloses the aspects of life which a country holds most dear.

An examination of the administration of criminal justice discloses what is and what is not.

It gives meaning to the rights of our citizens. Mr. Justice Lamer said that he sees our criminal law as a mirror of our national soul and he is fervently of the view that a free and democratic society must recognize the supremacy of God and the rule of law.

He commented that many totalitarian nations have constitutions which purport to protect the same values as we have.

Computer user issues focus for section programs James Spears, chairperson of the Computer Law Section, notes that section meetings this year will focus on computer users in the legal profession.

Meeting topics will address issues concerning both network users and stand-alone computer users.

Topics for meetings are being solicited and are oriented to computer use by lawyers.

You will see a reference to the number of the Bill (First Reading Bill Number) when it was introduced into the House. This number may be different from the chapter number of the new Act which is quoted after the title of the Act and which is the proper citation for the Act. The First Reading Bill Number has been given to you to make it easier for you to note up the Bills you may have in your library.

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

Ann McLean

Acts in Force

c) s.52(10), disallowing claims on the special compensation fund where the member was practising as a member of another Canadian jurisdiction, and

Guide Animal Act, S.B.C. 1990, c.49, First Reading Biil Number 47, repeals the Blind Persons Rights Act, R.S.B.C. 1979, c.29 and provides for the rights of disabled persons accompanied by a guide animal and the right of disabled persons to rent residential premises.

d) s.78, applying certain of the contingent fee provisions to contracts entered into on or after June 1, 1988.

in force August 31, 1990

sections 11 and 13 to 17 of the Act in force September 7, 1990

Statutes Repeal Act, 1989, S.B.C. 1989, c.14, the Heroin Treatment Act, R.S.B.C. 1979, c.166 is repealed. section 1(b) of the Act in force August 31, 1990

Waste Management Amendment Act, 1990, S.B.C. 1990, c.74, First Reading Bill Number 68, makes several amendments to the Waste Management Act, S.B.C. 1982, c.41, including providing for remediation of a contaminated site and the extension of obligations under a pollution abatement order to a person owning or occupying affected land even if that party was not the polluter. in force August 31, 1990

Attorney General Statutes Amendment Act, 1990, S.B.C. 1990, c.33, First Reading Bill Number 54, repeals s.60 of the Family Relations Act and provides a penalty for failure to comply with rules respecting disclosure of information made under the Court Rules Act. section 3 of the Act in force September 1, 1990

Attorney General Statutes Amendment Act, 1989, S.B.C. 1989, c.64, amends the Legal Profession Act, S.B.C. 1987, c.25 including

a) s.24, allowing the benchers to require an accountant's report of a member's books rather than an auditor's certificate, b) s.43, requiring the discipline committee to show cause why an order suspending or placing conditions on a member without notice should not be varied or rescinded,

Miscellaneous Statutes Amendment Act, 1990, S.B.C. 1990, c.57, First Reading Bill Number 46, amends the

a) International Financial Business Act, S.B.C. 1988, c.16 as to i) s.l, amending the definition of "nonresident", ii) s.1, amending the definition of "providing fiduciary services", iii) s.S(l)(c), expanding the scope of the activities of an international financial business in the areas of letters of credit and documentary collection, and b) International Financial Business (Tax Refund) Act, S.B.C. 1988, c.17 including

i) s.l, amending the definition of "international financial activity" to expand the scope of activities in the areas of letters of credit and documentary collections and to add managing of non-resident securities on behalf of residents, ii) s.1, amending the definition of "non-resident", iii) s.l, amending the definition of "providing fiduciary services". sections 17 to 21 and 34 of the Act in force September 7, 1990

Public Sector Collective Bargaining Disclosure Act, S.B.C. 1990, c.66, First Reading Bill Number

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Legislative Update (continued) 79, provides for the filing with the public sector registrar of copies of collective agreements between public sector employers and trade unions, summaries of matters in dispute and matters of agreement in the collective bargaining process and the provision to the public of summaries of the documentation filed with the registrar. sections 1 to 7 and 9 to 13 of the Act in force September 7, 1990 section 14(2) and the schedule in force September 19, 1990

Divorce Act, 1985 (Canada) and Family Relations Act matters; and section 12 of the Act in force September 17, 1990

c) Court of Appeal Act, S.B.C. 1982, c.7, amending s.13(3) to allow the court to sit at any place in British Columbia where the Attorney General has established registries. section 2 of the Act in force September 18, 1990

in force September 15, 1990

Financial Institutions Act, S.B.C. 1989, c.47, amends s.27(1) of the Insurance Corporation Act, R.S.B.C. 1979, c.201 by providing that the Insurance Corporation of British Columbia may invest or lend its funds in accordance with guidelines prescribed by regulation.

section 73 of the Act in force September 15, 1991

section 352 of the Act in force September 17, 1990

Credit Union Incorporation Act, S.B.C. 1989, c.23, relating to the incorporation, membership, business and regulation of credit unions. sections 1 to nand 74 to 109 of the Act

Financial Institutions Act, S.B.C. 1989, c.47, relating to the incorporation, business, corporate governance and regulation of financial institutions. sectio11s 1 to 199, 205 to 311, 313, 316 to 351, 353 to 412 of the Act it1 force September 15, 1990

Financial Institutions Statutes Amendment Act, 1990, S.B.C. 1990, c.6, First Reading Bill Number 32, amends the Credit Union Incorporation Act, S.B.C. 1989, c.23, and the Financial Institutions Act, S.B.C. 1989, c.47, with consequential amendments to the Company Act, R.S.B.C. 1979, c.59, the Co-operative Association Act, R.S.B.C. 1979, c.66, the Insurance Act, R.S.B.C. 1979, c.200 and the Insurance (Captive Company) Act, S.B.C. 1987, c.9 sectio11s 69 to 75 of the Act in force September 15, 1990

Attorney General Statutes Amendment Act (No. 2), 1990, S.B.C. 1990, c.34, First Reading Bill Number 76, amends the

a) Land Title Act, R.S.B.C. 1979, c.219 including i) s.6, providing that a Land Title office may serve more than one land title district, ii) s.15, relating to inter alia the registrar's signature on documents, and iii) s.41, adding definitions of "corporation", "officer" and "signature" for use in Part 5, Attestation and Proof of Execution of Instrument; sections 4, 5, 6 and 7 of the Act in force September 17, 1990

b) Provincial Court Act, R.S.B.C. 1979, c.341, by adding s.3.1 providing that a registry of the Provincial Court may be designated as a registry of the Supreme Court for the purpose of allowing a provincial court judge to hear an interlocutory application in certain

Miscellaneous Statutes Amendment Act, 1990, S.B.C. 1990, c.57, First Reading Bill Number 46, amends

a) s.30 of the Fire Services Act, R.S.B.C. 1979, c.133, allowing a local assistant to order that fire detection and other equipment must be installed in a hotel or public building; sectio11 14 of the Act i11 force September 17, 1990

b) s.3 of the Municipal Finance Authority Act, R.S.B.C. 1979, c.292, by adding as an object of the Municipal Finance Authority of British Columbia the provision of interim financing for regional districts and municipalities and adds s.9.1, prescribing circumstances when interim financing may be provided; and section 22 of the Act in force September 17, 1990

c) the Sechelt Indian Government District Home Owner Grant Act, S.B.C. 1988, c.57, by substituting a definition for "district" in lieu of ''band" in s.1 and substituting the word "district" for the word ''band" throughout.; section 24 of the Act in force September 17, 1990

Community Care Facility Amendment Act, 1990, S.B.C. 1990, c.37, First Reading Bill Number 43, amends s.14 of the Community Care Facility Act, R.S.B.C. 1979, c.57, so that regulations may provide differently for one or more classes of facilities. section ll(c) of the Act in force September 27, 1990

Assessment and Property Tax Reform Act (No . 2) 1990, S.B.C. 1990, c.32, First Reading Bill Number 78, amends s.27(6) of the Assessment Act, R.S.B.C. 1979, c.21, by providing a revised definition of "right of way'' for calculation of deemed value in certain circumstances. 路 section 3(e) of the Act, except the portion which enacts sectiot1 27(6)(c) and (d) of the Assessmet1t Act, i11 force Sept. 28, 1990

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Legislative Update (continued) Solicitor General Statutes Amendment Act, 1990, S.B.C. 1990, c.71, First Reading Bill Number 62, amends the Motor Vehicle Act, R.S.B.C. 1979, c.288 including a) s.55(3), providing that the term of alicense issued for antique, collectors' or similar motor vehicles is to be as prescribed by regulation, b) s.76(4), providing that an owner of a motor vehicle, including a lessee, is liable for any violation of the Motor Vehicle Act, the regulations under it or the applicable sections of the Firearm Act, c) s.92.1(3), providing a penalty for failing to stop when signalled by a police officer, d) s.211(1) and (2), allowing the Lieutenant Governor in Council to regulate the height and distribution of loads and a vehicle's capability to retain its load, e) s.211.1, allowing the Lieutenant Governor in Council to regulate licensing of antique, collectors' and similar motor vehicles. sections 6, 8, 9, 10 and 12 of the Act in force Octob er 1, 1990

f) s.61, providing for reports of accidents

where property damage exceeds $600 for motorcycles or $1,000 for other vehicles section 7 of the Act in force January 1, 1991

Referendum Act, S.B.C. 1990, c.68, First Reading Bill Number 55, allows the Lieutenant Governor in Council to order that a referendum be conducted on any matter which it considers to be of public interest or concern, with a majority vote being binding on the government. in force October 5, 1990

Health Statutes Amendment Act, 1990, S.B.C. 1990, c.51, First Reading Bill Number 61, amends the Mental Health Act, R.S.B.C. 1979, c.256, s.19, 19.1, 27(1) and 28(1), relating to voluntary admissions of minors by providing for periodic examination of a minor who is being detained on the request of a parent or guardian and release of the minor upon notification of a doctor or upon a finding by a review panel that the minor is not mentally disordered. sections 25 to 28 of the Act in force October 15, 1990

Members' Conflict of Interest Act, S.B.C. 1990, c.54, First Reading Bill Number 66, contains prohibitions and filing requirements relating to the private interests of members of the Legislative Assembly and Executive Council and establishes the office of an independent conflict of interest commissioner who has the power to inquire into

conflict of interest matters. in forc e December 1, 1990

Regulations to Note Court Order Enforcement Act , by Orders in Council Number 980/90 and 981/90, Colorado and Idaho are declared to be reciprocating states for purposes of Part 2 (Reciprocal Enforcement of Court Orders.) effective July 1, 1990

Medical Service Act, B.C. Reg. 144/68, the Medical Service Act Regulations are amended to allow a person who is entitled to payment of the cost of medical services performed outside the province to assign his entitlement to payment for those services. effective July 17, 1990

Expropriation Act, B.C. Reg. 452/87, the Expropriation Compensation Board Practice and Procedure Regulation is amended by providing a mechanism for an expropriating authority to apply to the Expropriation Compensation Board for a determination of compensation. effective July 30, 1990

Wildlife Act, B.C. Reg. 336/82, the Wildlife Act Firearm and Hunting Licensing Regulation is amended by exempting a person who holds a valid hunting licence from the requirement to hold a firearm license. effective July 30, 1990

Guaranteed Available Income for Need Act, B.C. Reg. 479/76, the Guaranteed Available Income for Need Regulations are amended by increasing the amounts of monthly support allowance and basic income assistance rates set out in sections 1 and 2 of Schedule A. 路 effective August 1, 1990

Offence Act, a) B.C. Reg. 272/86, the Ticket Information Fines Regulation is amended by changing references in the schedules from the "Park Act Regulation" to the "Park and Recreation Area Regulation" and referring to the fines for offences and b) B.C. Reg. 274/86, the Ticket Administration Regulation, is amended by changing references in Schedule 1 from the "Park Act Regulations" to "Park and Recreation Area Regulation" and the Litter Act and referring to enforcement of offences and in scheduleD referring to the word ing to be used on the applicable ticket. effective August 1, 1990

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Legislative Update (continued) Natural Gas Price Act, B.C. Reg. 241/90, is made relating to netback gas sales contracts. effective August 1, 1990

Hazardous Waste Management Corporation Act, B.C. Reg. 250/90, the Hazardous Waste Management Corporation Regulation is made designating dangerous goods. effective August 3, 1992

Liquor Control and Licensing Act, B.C. Reg. 608/ 76, the Liquor Control and Licensing Regulations are amended to provide for the issuance of licenses to Restoration Public Houses. effective August 3, 1990

Waste Management Act, B.C. Reg. 263/90, the Spill Reporting Regulation is made setting out reporting requirements for spills of substances in a specified amount. effective August 10, 1990

Exposure Bills Statutory Appeals Procedure Act 1990, First Reading Bill Number 69, introduced on July 24, 1990, and left on the Order Paper. The bill is intended to implement a part of Recommendation 114 of the Justice Reform Committee Report 1988.

That report suggests that due to confusing provisions granting rights to appeal to a court in more than 120 enactments, the Legislature should enact a new Act defining two distinct appeal processes: a new trial (trial de novo) or review on a question of law. Further it suggests that legislation providing for an appeal should define the appeal procedure or designate which of the two processes described above should apply.

Bill 69 applies to appeals to the Supreme Court from a tribunal, as authorized by an enactment.

All appeals are to be commenced by filing a peti~ tion under the Rules of Court. The appeal must be conducted as an originating application under the Rules of Court, subject to special court order otherwise. The Bill provides for at least 14 days' notice before the hearing of the appeal. The court has discretion to shorten or lengthen time periods and to allow for the suspension of the effect of the decision being appealed.

Legislative counsel contemplates making consequential amendments to standardize appeal procedures in more than 70 statutes which provide rights to appeal to the Supreme Court from a tribunal's decision. Many of them relate to appeals from disciplinary hearings under professional statutes, the Legal Profession Act being an excep-

tion. While that Act provides for applications to the Supreme Court in respect of a variety of matters, appeals from disciplinary proceedings are made to the Court of Appeal under s.58, and are therefore not subject to Bill69. Examples of other statutes which will be amended are: Family

Relations Act, Family Maintenance Enforcement Act, Family and Child Service Act, Employment Standards Act, Forest Act and various taxation statutes.

Builders Lien Act, First Reading Bill Number 52, introduced on July 26, 1990 and left on the Order Paper for public discussion. The bill is intended to reflect the recommendations made by theselect standing committee on Labour, Justice and Intergovernmental Relations in its first report on the Builders Lien Act dated May 31, 1990. As suggested in the report, the general structure of the current Builders Lien Act and its main concepts, the lien, the holdback and the trust have been retained. While it is not possible to provide a full discussion of all the changes to the current Builders Lien Act here, some of the most fundamental changes are described.

The definition section has clarified some of the ambiguities in the current Act. It abolishes the distinction between a subcontractor and a materialman and defines substantial performance or completion by reference to the state of readiness of the improvement and the cost of completion or correction. In the case of a strata lot, completion or substantial performance is the date of first occupancy.

Section 3 allows an owner who has knowledge of an improvement for which he has not contracted, to file a notice in the land title office disclaiming responsibility for the lien.

Section 4 institutes a multiple holdback system.

Each person primarily liable on a contract or subcontract must hold back 10 per cent of the greater of the value of services or materials provided or the amount of payment on account. A purchaser may hold back 10 per cent of the purchase price.

Section 5 requires an owner to establish a holdback trust account where the total of services and materials provided is greater than or equal to $500,000.

Section 7 allows a contractor or subcontractor to require the owner, head contractor, architect, engineer or the court, as applicable, to provide a certificate of completion. Section 8 provides for a holdback period of 40 days following the happening of one of several events, depending upon the circumstances. Section 9 allows a phased release of the owner's holdback as each subcontract

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Legislative Update (continued) is completed and paid for.

completion of the contract.

Section 10 introduces a "privity of trust" concept by imposing a trust only where the parties have a contractual relationship. Section 13 gives priority to the beneficiaries of the trust over a garnishor and provides that the holdback account is not subject to garnishment. Section 14 imposes a one year limitation period for trust claims.

Sections 35 to 37 deal with allocation and distribution of funds realized to satisfy the liens and incorporate changes due to the multiple holdback system and changes to the provisions relating to the discharge of liens and payment in.

Section 15 and Form 3 simplify the form of the lien claim. Section 16 provides that where a single contract applies to.more than one parcel, the lien may follow the form of the contract. Section 20 prescribes a limitation period of 31 days for the filing of a lien following the happening of one of several events.

Section 23 contains a mechanism for payment into court of the total amount which a subcontractor may recover, which payment stands as security for payment of the lien amount. Section 24 provides that the owner and any person liable on a contract may apply to have a lien registration cancelled on giving security for payment.

Section 31 clarifies that only liens filed before a mortgage advance take priority with respect to that advance. In addition, it allows a mortgagee to apply to the court for an order that a further advance have priority over liens if the advance is to complete the improvement and will result in increased value at least equal to the proposed advance.

Section 33 adopts the "Noranda Rule" by providing that the maximum amount recoverable by all lienholders is the greater of the amount owing under the relevant contract and the required holdback. Section 34 limits to 10 per cent of the purchase price, the amount which may be claimed against a purchaser's interest where the liens are filed after the later of registration or

Edwards named new Deputy Attorney General Robert Edwards, Q .C., is the new Deputy Attorney General replacing E.N. (Ted) Hughes, Q.C., who retired from the position Oct. 1, 1990. Hughes has been appointed acting conflictof-interest commissioner for a three year term as well as police complaints commissioner.

Edwards was appointed Assis-

For the most part, the changes in the Act reflect the suggestions contained in the select standing committee's report.

Pension Benefits Standards Act, First Reading Bill Number 44, introduced on July 26, 1990 and left on the Order Paper. The purpose of the bill is to set minimum standards for all employer pension plans in the province. It is contemplated to come into force on January 1, 1993. Over the past 25 years, all of the Canadian provinces with the exception of British Columbia and Prince Edward Island, have enacted legislation regulating private employer pension plans. In common with that legislation, the main objects of Bill 44 are to ensure that a) employees receive full information about their interests in the employer plan, b) when an employee changes employment, certain of his benefits remain to his credit or follow him, c) the plan remains solvent, and d) there is a proper distribution of assets on winding up of the plan.

In addition, Bill44 contains provisions which are found in some but not all other provincial legislation including a) prescribed entitlement of certain types of employees to join, b) a minimum employer contribution of 50 per cent, c) spousal survivor benefits, and d) provisions relating to multi-employer plans. The Bill contemplates reciprocal registration and enforcement with other Canadian provinces having similar legislation.

tant Deputy Attorney General in the Legal Services Branch in 1985. He joined the Civil Law ' section of the ministry in 1973 and has acted as counsel on a variety of issues including pollution control, energy, transportation, medical services, communications and offshore resources.

Brecknell new Provincial Court judge Edward R. Brecknell, Q.C., a Salmon Arm lawyer, recently

has been appointed as judge of the Provincial Court.

Brecknell has served the community of Salmon Arm as both Crown and Defence counsel.

He has spent the last 32 years in the administration of justice.

He served as a member of the R.C.M.P. before he entered university to complete his B.A. and then a degree in law.

Brecknell was sworn in on October 24, 1990 and will assume his duties in the Salmon Arm area.

10

Branch budget highlights Provincial Council meeting Terry La Liberte chaired the first Council meeting for the 1990/91 fiscal year on September 8. La Liberte noted that the Branch continues to grow with 7,000 members, a $1.6 million operating budget, 46 active Sections, some 34 committees and 26 other committees on which the Branch has representation.

Local and County Bars express achievements and concerns to Council

Income

Di rectory 10.1

Secti on Mai lings 8.8 Me m ber Serv ices 4.1 Gra n ts 19.4

Expenses

Reports by Local and County Bar presidents provided highlights of activities in their areas.

These reports noted: The first Court of Appeal sitting in Kamloops on October 15; Cariboo Bar has provided the first scholarship to the new University of Northern B.C.; the urgent need for courthouse improvements in Nanaimo; introduction of Lawyer Referral in the Terrace area; and general concern of ''bumping" of civil cases for criminal cases in many areas.

B.C. Branch budget approved The 1990/91 Branch budget was presented for consideration of Council by Wendy Baker.

She noted that there was no increase in the Branch assessment and no increase in National fees other than the 5 per cent cost of living increase approved by the National CBA. She also noted that there were no new extraordinary items in the budget.

Baker indicated that the budget is a break-even budget with projected revenues of $1,655,600.

The graphs opposite provide a graphic representation of sources of revenue and expenses of the Branch for the coming year.

New Branch position filled President Terry LaLiberte announced the appointment of

Fi nancial

1.1

Mail i ngs 9.3

Person nel 219

Of fi ce 11.8

Ann McLean as the Branch's new Legislation and Law Reform Officer. The activities of the Sections and the Executive will be supported by the work undertaken by Ann in preparing comment on legislation and law reform as well as in submissions to government.

Bencher rep report Peter Leask, the Bencher representative, reported that the draft of the professional conduct handbook would be distributed to the profession and welcomed any comments.

Council also passed a resolution to re-establish Bencher representation to two persons on Provincial Council.

Communications activities broadened Branch Communications Committee Chairman Parker MacCarthy reported on several activities in this area. He noted that with the establishment of the Governmental Relations Committee, the Branch is setting up a provincial network for

communication which will use the Local and County Bar presidents as local resource persons.

He also noted that the Branch's Mentor program had been launched and that there were some 22 requests from schools throughout the province to participate. Any law firm interested in more information about the Mentor Program can contact Larry Hnetka at the Branch office.

MacCarthy also noted that the Law Society sponsored television program Legal Wise was in its second season of programs.

Richard Swift represents the Branch on the advisory committee and was commended for his diligent work on providing direction for this series of television programs.

Winding up committees Other business at the Council meeting including the winding up of the Nuclear Arms, Commissioner for Oaths, Contingency Fees, and Court Services Technology Committees.

11

Counsel Network receives Branch endorsement for locum service Members of the Bar were canvassed in April by the Branch's Member Services Committee to identify if locum services were being provided or would be used if available.

locum services ourselves but rather endorsed the Counsel Network to expand its services endorsed by the Branch to include locum services coordination, both part- and full-time.

Generally, a locum provides a "temporary" service for a lawyer who is taking an extended vacation, leave of absence or who requires a person to handle clients on a temporary basis.

The Counsel Network also provides a lawyer placement service which has been endorsed by the Branch. The Counsel Network can be reached at 6407198.

Many members responded that they were inter~sted in locum services and some provided comments on the proposal.

After extensive consideration, the Branch's Member Services Committee decided not to undertake the coordination of

Legal Probe column runs weekly in Sun B.C. Branch Section members are providing responses to readers' questions in a Vancouver Sun weekly column called Legal Probe. The column appears regularly in the Sun's Life Section on Friday. The March 1990 audited circulation indicates a Friday edition readership of over 271,000 persons.

The general advice provided by B.C. lawyers to reader's questions has addressed a number of areas including responses to questions about wills and estates, air pollution, consumer contracts and family law matters.

The column's intent is to provide general information only and each column recommends that readers seek legal counsel to answer their specific legal problems.

Legal Probe is another of the Branch's on-going commitments to provide the public

The Committee thanks all of the members who responded with questions and comments. The Committee will be monitoring this service to deal with any problems. If you have further questions or comments, please contact the Member Services Committee, c/o Bruce Woolley, Stikeman, Elliott, Barristers & Solicitors, 600 -1090 West Pender, Vancouver V6E 2N7.

Take note of these considerations when using or providing locum services The Branch Committee considered a number of issues related to locums. Members who provide locum services or take advantage of them should consider the following: ~ Competency: Lawyers should only be providing services within their areas of expertise, and the lawyer requesting locum services should ensure that the replacement lawyer is competent in the required practice area. ~ Insurance: If the lawyer providing the service is an insured practising member, there should be no problem.

However, the requirements of excess insurance should be considered. Members making use of locums should contact their broker or agent to make specific arrangements to ensure that the protection

of the excess policy is available both during and after provision of services. ~ Litigation Continuity: Lawyers should consider who will appear as counsel of record, and ensure that trials and chambers matters are scheduled appropriately. ~ Trust Accounts: Members should verify that the lawyer providing the service is authorized to operate a trust account and is familiar with trust accounting. This is of major concern for sole practitioners, especially if the regular secretary will be absent as well.

~ Confidentiality/Conflicts: Members providing the services must be careful to ensure that the normal confidentiality I conflict rules are observed and be sensitive to potential problems areas as they move from firm to firm .

To THE

with information on our justice system.

GETTING

A special thank you is extended to all Section Chairpersons who provide the responses to the questions.

Winter Convention '91 March 14-17, 1991 Plan to attend now.

MILLENNIUM

12

Ann McLean appointed to new Branch position

ety, has developed a family law series which is aired on the local community cablevision channel on a weekly basis.

B.C. Branch President Terry La Liberte is pleased to announce the appoinhnent of Ann McLean as the Branch's new Legislation and Law Reform Officer.

Lawyer David Handy prepared an outline of ten programs which addressed current issues in family law. The series covers a range of topics from custody, maintenance and property division, to adoption and child apprehension.

The part-time position is funded by a grant from the Law Foundation of B.C. As Legislation and Law Reform Officer, McLean will monitor white papers, government discussion papers and new legislation. She will act as a resource to the Branch sections and help to coordinate their research activities. As well, McLean will prepare and review position papers and responses to legislative initiatives and develop, maintain and expand contact with government ministries and other groups.

Ann McLean recently moved to Victoria from Calgary where she practiced for eight years in the corporate-commercial and banking areas with an emphasis on natural resources, and in particular oil and gas.

She graduated as gold medallist from the University of Calgary Faculty of Law in 1980 and was called to the Alberta Bar in 1981.

She has maintained a non-practicing membership in the Law Society of Alberta and was also called to the British Columbia Bar this spring.

McLean also will be teaching Business Associations with the Faculty of Law at the University of Victoria .

Kamloops cable channel features family law issues The Kamloops Family Law Section, in conjunction with the Kamloops Legal Services Soci-

The program format is a panel discussion with a lawyer as host and one or two guests.

The guests are lawyers or other professionals who work in the family law area.

The programs are done live and viewers can call into the station and ask specific questions of the panel members.

Although it is difficult to determine the size of the audience, the objective of the program is to fulfill a public education role for viewers in the area. The program is expected to continue in the 1990-91 season.

Booklets provide GST tips and traps Did you know that "a law firm is not required to match input tax credits with services billed"? This is the first "tip" in the booklet, The CST Guide for Lawyers: Tips and Traps recently released by the National CBA office.

The booklets provide information for lawyers and consumers of legal services about the application of the proposed goods and services tax.

Copies of the booklets, The CST Guide for Lawyers: Tips and Traps and The CST Guide for Consumers of Legal Services: Tips and Traps, can be obtained by sending $5 per booklet (prepaid) to the Canadian Bar Association, 902 - 50 O'Conner Street, Ottawa KIP 6L2 .

Members serve the profession

+

Russell Lusk will chair the new Governmental Affairs Special Committee

+ Tony Palmer has been appointed as chairman of the DialA-Law /Lawyer Referral Committee. Craig Goebel has also been appointed to serve on this committee.

+

Murray Clemens has been appointed to the Communications Committee to head the Mentor Program Sub-Committee

+ Georges Goyer has been appointed a Director of theCanadian Bar Insurance Association + George Reilly has been appointed as chairman of the Premises Committee

+

Jeff Scouten has been appointed chairman of a special committee to review, coordinate and facilitate responses from Branch Sections and the Local and County Bars to the draft Professional Conduct Handbook David Brine and John Waddell have also been appointed to the Committee.

•

Section Registration

Enrollments in the Branch's 46 Sections are still being accepted.

Every CBA member is entitled to receive two Secti<;m notices free of charge. Section notices and minutes are $15 per section.

Questions about your enrollment? Call Fran Hodgkins, B.C. Branch section coordinator at 687-3404.

â&#x20AC;˘

13

Pilgrimage to Paisley perfect The Pilgrimage to Paisley held in Scotland on Sept. 28 to 30 was a celebration in honour of Mrs. May Donoghue, David Stevenson, their solicitors and advocates. It also celebrated the common heritage of the international legal system of common law.

The Conference was jointly sponsored by the Canadian Bar Association, the Faculty of Advocates and the Law Society of Scotland .

From the welcoming civic reception complete with pipers to the dedication of the Wellmeadow Park and Memorial, to the trip "Doon the Watter", delegates received a resounding welcome from the towns people of Paisley.

The conference was truly an international legal event without precedent featuring a roster of world-renowned authorities on the law of negligence.

Proceedings will be published as "The Paisley Papers on the Law of Negligence."

To commemorate the Paisley Pilgrimage, the UBC Class of1962 and Canadian Pacific Forest Products Ltd ., donated a bench, made from B.C. red cedar, which was placed in Wei/meadow Park in Paisley. Seated on the bench are (/eft to right) The Honourable Madame Justice Bertha Wilson; Rt . Han . Lord Mackay of Clashfern, P.C., the Lord Chancellor; the Right Han . Lord Hope, P.C., Lord President of the Court of Session, Scotland; the Honourable Mr. Justice G. Brennan, High Court of Australia; Allan Minchella, grandson of the original proprietor of the Wei/meadow Cafe where Mrs. Donoghue had her famous ginger beer and the cause of action in Donoghue v. Stevenson began.

Toll-free hotline lists recycling companies Recycling is becoming more and more common in B.C. law offices. However, many firms that would like to start recycling their waste have difficulty finding someone to pick up their recyclables.

Some firms are told by recycling companies that they don't produce enough waste paper to make pick up costs effective.

Other firms are told that their offices are too remote. In some communities, there isn't anyone willing to pick up office paper under any circumstances.

Paisley Conference Chairman Brian Williams, Q.C., welcomes delegates at the Abbotsinch airport. Paisley Conference Secretary, Mr. Justice Martin Taylor (left) and local piper express their appreciation!

Problems like these are unfortunate, but not insurmountable.

Even if at first glance there doesn't appear to be anyone in your area who can meet your recycling needs, you may still be able to organize an office recycling program.

You'll have to do some research and find out if there are any other offices in your building or community interested in recycling. If there are, you may be

able to combine efforts to generate enough waste paper to interest recycling companies.

One of your neighbours may have space available for short term storage of recyclables, or may have access to someone willing to pick up these materials. If there are other offices in your building interested in recycling, your building manager or landlord may be willing to help set up a building wide recycling program.

This may all seem like a big hassle, but the savings to be gained from recycling are considerable. For instance, 2.2 tonnes of wood are needed to make a tonne of new paper, along with considerable amounts of power, water and chemicals. Making paper from recycled fibre greatly reduces the consumption of wood, water, power and chemicals.

Glass can be recycled forever and every tonne of crushed waste glass used saves 135 (Please turn to page 14)

14

Dates to Note Tuesday, November 13,1990 Law Courts Inn Tickets $50 per person Make your cheque payable to the Canadian Bar Association and send it to the B.C. Branch,504-1148 Hornby St., Vancouver, B.C. V6Z 2C3

Registry established for Branch documents The Legislation and Law Reform Committee is establishing a central registry for position papers, resolutions, reports and comments issued by the Branch Executive, Council, Section and special committees on law reform issues and legislation.

It would be appreciated if members who have been responsible for preparation, collection or maintenance of any of these documents would provide copies to the Branch office, to the attention of Legislation and Law Reform Officer Ann McLean.

Product of the month This month's product of the month gives you the edge on first impressions. The Unibind

Recycling

(continued from page 13)

litres of oil and 1.2 tonnes of raw materials. A tonne of aluminum uses up to four tonnes of bauxite to make, and all metal smelting uses a lot of energy.

Don't forget, recycling is a growing business, and new companies are opening all the time. If there is no one willing to pick up your recyclables right now, there may be someone available in a month or two. For the most recent listings of recycling companies in your area, contact the provincial Recycling Hotline at 1-8004321.

John Mostowich, co-ordinator of the Lawyers Recycling Project, can provide you with information and advice on recycling and how to start an office recycling program. Mostowich can be contacted by calling 631-3177 and leaving a message at voicemail box #3634.

system gives your reports, presentations, and other bound documents the professional image you require. The system is simple to use and creates bound documents that open flat and are easy to file.

Unibind reps can demonstrate the simplicity of this professional binding unit in your office in just 15 minutes.

In addition to the clear plastic covers presently available, a Unibind representative will be pleased to show you new plain paper covers to customize your presentations.

Branch members automatically receive 15 per cent off on cover orders and until the end of November will receive a 10 per cent discount on equipment purchase.

Detailed information on the Unibind system is enclosed with this mailing of BarTalk.

You can call538-3273 in Vancouver or outside the Lower Mainland toll free 1-800-6638184 to arrange your free demonstration of the Unibind system.

For further information, contact the B.C. Branch unless otherwise noted October 27, 1990 B.C. Branch, CBA Local and County Bar President's Meeting Law Courts Inn, Vancouver November 13 Bench and Bar Dinner Law Courts Inn, Vancouver December 8, 1990 B.C. Branch, CBA Provincial Council Meeting Law Courts Inn, Vancouver January 26, 1991 B.C. Branch, CBA Provincial Council Meeting Law Courts Inn, Vancouver February 21-26, 1991 National Mid-Winter Meeting Regina, Sask.

March 14, 1991 B.C. Branch, CBA Provincial Council Meeting Westin Bayshore, Vancouver March 14-17,1991 Winter Convention '91 Westin Bayshore, Vancouver April1991 Law Week (Various locations throughout the province) Contact Co-Chairpersons Sandra Cunningham or Colin Sweeney for further details.

BarTalk is published by the British Columbia Branch of the Canadian Bar Association, 504-1148 Hornby Street, Vancouver, B.C. V6Z 2C3 Telephone: (604) 687-3404 FAX: 669-9601 Copyright the British Columbia Branch of the Canadian Bar Association -1990.