BarTalk | August 2014

ECONOMIC TORTS | EYEWITNESS IDENTIFICATION | CIVIL FORFEITURE

AUGUST 2014 | cbabc.org

Search Incident to Arrest and Cellphone Privacy

PAGE 12

news&events BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Michael Welsh

EDITORIAL BOARD MEMBERS

2014 PROVINCIAL COUNCIL AWARDS President’s Medal and Harry Rankin, QC Pro Bono Award

Candice Alderson Laura Cundari Sandra Harper Ellen Hong Oana Hyatt David Madani Sarah Nelligan Rose Shawlee

BARTALK SENIOR EDITOR

Maureen Cameron

STAFF CONTRIBUTORS

Judy Cave Zameena Dadani Tanya Galic Ava Jerao Paula LaBrie Stuart Rennie Karen St. Aubin Jennifer Weber Judy Yen

Left Photo (L-R): CBABC President Dean

Crawford presented R.C. (Tino) Di Bella with the President’s Medal.

Right Photo (L-R): CBABC President Dean Crawford with Jamie Maclaren, recipient of the Harry Rankin, QC Pro Bono Award.

Recognizing Years of Service on Provincial Council

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 Subscription Services: Send your name/address updates to the contact info above either by email or phone.

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

Equality and Diversity Award and the CBABC Innovative Workplace Award

Left Photo (L-R): CBABC President Dean

Crawford presented Janine Benedet with the Equality and Diversity Award.

Right Photo (L-R): Brock Smith accepted the CBABC Innovative Workplace Award on behalf of Clark Wilson LLP.

2015 DIRECTORY Honoured by CBABC President Dean Crawford in recognition of their six years of service on the Provincial Council.

L-R: Don Kawano, QC, CBABC President Dean Crawford, Deanna Ludowicz, QC, Constance Sauter, and Judith Janzen.

Go to

cbabc.org to purchase your new Directory

© Copyright the British Columbia Branch of the Canadian Bar Association 2014.

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.

Honoured by CBABC President Dean Crawford in recognition of their three years of service on the Provincial Council. L-R: Michael Welsh, Lisa Hamilton, CBABC President Dean Crawford, and Ken Kramer.

CBABC Community Service Award

BarTalk Publication Sales Agreement #40741008

L-R: Kim Karras and Frances Kelly were recipients of the CBABC Community Service Award.

2 BARTALK / AUGUST 2014

Write Us Send your Letters to the Editor to: Deborah Carfrae BarTalk Editor The BC Branch of the Canadian Bar Association Fax: 604-669-9601 Toll-free fax: 1-877-669-9601 Email: bartalk@cbabc.org Note: BarTalk undertakes every effort to publish letters to the editor, subject to space and editorial discretion.

Letters to the editor can also be found in BarTalk Online at cbabc.org.

AUGUST 2014

VOLUME 26 / NUMBER 4

Contents

Departments

4

FROM THE PRESIDENT A Year in Review

by Dean Crawford

5

MEMBERSHIP COMMITTEE We’ve Listened to You!

by Kerry L. Simmons, QC

6

PRACTICE TALK Practising Patience

by David J. Bilinsky

7

DAVE’S TECH TIPS

8

NOTHING OFFICIAL What To Do About the Cost of Real Estate?

by Tony Wilson

Sections

10 SECTION UPDATE

Criminal Justice – Nanaimo

CBABC Criminal Justice Vancouver Section Annual Dinner Event

Insurance Law Section

Inaugural Law School Essay Competition Winner 11

SECTION NEWS Chatter with Chairs – John Bilawich

Features 12 SEARCH INCIDENT TO ARREST AND

CELLPHONE PRIVACY

by Jeremy Guild 13 DEFENCES TO THE TORT OF DEFAMATION

by Marko Vesely 14 THE “TRUTH IN SENTENCING ACT”

by Michael Welsh 15 EYEWITNESS IDENTIFICATION

by Oliver Butterfield 16 DEVELOPMENT IN ECONOMIC TORTS

by Jonathan J. Weisman 17 THE RISE OF CIVIL FORFEITURE

by Peter J. Roberts

Guest 9

Inside This Issue The latest in crime, torts, taxes and civil forfeiture of assets. This issue of BarTalk safely pilots our readers through these uncharted legal shoals, including new principles for economic torts, sentencing credits for pre-trial detention, privilege defences to defamation, frailties in eye-witness identification and double taxation of legal services. We also explain the new CBABC Advantage for our members.

News and Events 2 2014 Provincial Council Awards 18 CLC 2014 – Converging Futures

The CBA Steps In

The CBA at Work 19 Challenge Your Firm to Go Green!

The 13th Annual Battle of the Bar Bands

CBABC Law Student Volunteers 20 View from the North – Clint Sadlemyer, QC SoloLink – Another good idea takes flight!

CLEBC Update 21 Legislative Update

Branch & Bar Calendar

Georges A. Goyer, QC Memorial Award for Distinguished Service

Calling All Lawyers – Volunteer to Be a Mentor 22 CBABC WLF News

BarTalk Send Us Your Ideas

You’re Invited to Update Your Info

Also In This Issue

11

THE NEW BC ADVANTAGE

23 LAW FOUNDATION OF BRITISH COLUMBIA 24 PROFESSIONAL DEVELOPMENT 25 DISPLAY ADS

BC LEGAL SERVICES

by Alexander Coombes

26 BAR MOVES 27 NEW MEMBERS

Click here for LEGAL OPPORTUNITIES and ads AUGUST 2014 / BARTALK 3

FROM THE PRESIDENT DEAN CRAWFORD

A Year in Review This year had it all

A

DVOCACY, LAW REFORM, COMPOSITION OF THE JUDICIARY AND RADICAL CHANGE TO OUR SECTIONS – THIS YEAR HAD IT ALL. Ask the nearly 7,000 members

in BC what they value in their CBA membership and the answers will vary greatly. Meeting the varied needs and interests of our members must be at the forefront of the CBABC’s activities year-round. As the 20132014 year draws to a close, I thought it appropriate to highlight some of the year’s events and where we are headed in the months to come.

ADVOCACY AND LAW REFORM. We had a string of successes in building allies in our advocacy for enhanced and stable funding for legal aid and the Court Services Branch. First up in September was the Union of BC Municipalities, which called for long-term, increased and stable funding of legal aid.

In November, the Select Standing Committee on Finance and Government Services adopted the CBABC submissions and recommended that the government commit to stable funding for the Court Services Branch and increases to legal aid.

In May, the delegates to the AGM of the BC Chamber of Commerce unanimously adopted the resolution of a joint CBABC/Chamber task force calling for commitments to funding of legal aid and the Court Services Branch and for the establishment of a formula to determine the proper number of Provincial Court Judges.

Throughout the year, the Legislation and Law Reform Committee and our many Sections made submissions to government on law reform. Topics varied from local government election reform and a proposed Franchise Act to regulation of other legal service providers such as notaries and paralegals.

EXCELLENCE AND DIVERSITY IN THE JUDICIARY. Members of

CBABC’s Advisory Committee to 4 BARTALK / AUGUST 2014

Judicial Council make reports on all applicants who apply for a position with the Provincial Court. These reports are the primary source of information for assessing the suitability of applicants and for deciding whether Judicial Council grants an interview. The CBABC performs an invaluable service to the profession, the judiciary and the public.

We have also been focused on diversity in the judiciary, and in late May held a very successful forum, webcast across the province, “Building Diversity on the Bench.”

Several judges spoke from their own experiences and why both diversity and excellence in judicial appointments are so important.

membership comes with one free Section, with a $50 fee to join additional Sections.

Starting next month, that all changes. Branch membership will include unlimited access to all 78 BC and 41 national Sections and Forums.

And with that comes a commitment to making sure that even more of the meetings are webcast right across the province.

With Sections offering literally hundreds of hours of accredited PD programs, members can easily fulfill all of their PD requirements through the price of CBA membership.

Space permits me to only briefly mention the Rural Education and Access to Lawyers (REAL) program, the Annual Branch Conference and our Law Week activities.

Suffice it to say, our activities are as varied as our members’ interests. Through all of this, we are supported by the incredible volunteer efforts of lawyers and a dedicated and talented staff.

It has been a pleasure and privilege to serve as President over the past year. I confidently “pass the baton” to incoming President Alex Shorten, who I know will serve our members well.

A LOOK TO THE FUTURE – UNLIMITED SECTIONS AND FORUMS.

In consultations at Provincial Council and through the Rural Lawyers Task Force, we were told that our members want more access to Sections. Currently, CBABC

Dean Crawford

president@cbabc.org Twitter: @deancrawfordvan

MEMBERSHIP COMMITTEE KERRY L. SIMMONS, QC

We’ve Listened to You!

Unlimited Section enrolments with CBA Membership

W

e heard you! Starting September 1, your membership with the CBA, BC Branch will include unlimited access to all 78 BC and 41 National Sections and Forums, offering you the ability to earn all LSBC required 12 hours of professional development (PD), including ethics. These benefits are exclusive to CBA, BC Branch members. We call it the “BC Advantage.”

Sections and Forums are practice-focused groups organized by substantive areas of law or by interest areas. Some Sections and Forums like Family Law or Young Lawyers have many regional locations and others operate from a single area for the benefit of the entire province. Meetings take place in person, by phone or by webinar. The networking and

PD provided through Sections and Forums are considered one of the main benefits of CBA membership.

Through the BC Advantage, you will have instant access to all online Section resources, unlimited access to register for all Section and Forum meetings, and will receive meeting announcements and legislative updates from as many specified Sections as you choose.

From July through September, you can enrol as you usually would in specific Sections in order to receive regular Section and Forum communications such as meeting announcements. However, there are no additional enrolment fees. If you hear about an upcoming Section or Forum meeting you want to attend, but aren’t enrolled, it doesn’t matter.

Go ahead and register to attend the specific meeting. If it involves a meal and you want to attend for that part, you will have to pay for the meal. But there is no additional charge for the meeting. And you always have the option to choose which Sections and Forums will send you regular notices.

In addition to unlimited access to Sections and Forums, you will have complimentary access to two hours of special PD to fulfill your annual required ethics and practice management obligation. In other words, for the cost of full CBA membership, $751.88, including tax, you can meet your entire PD requirements, and be part of the essential ally and advocate of the members of the legal profession.

If you qualify for a discount, you will receive the same benefits for 4050% less. Retired lawyers, part-time and non-practising lawyers, new lawyers, articling students and scholars all qualify for discounts.

Our Section Chairs, Elected Members, Executive Committee and the Rural Lawyers Task Force have all heard our members’ requests for more access to Sections and Forums.

You made it clear that the additional cost of the previous enrolment fees was a barrier.

Over and over again, our members have told us that Sections and

Forums provide great connections to other members of the profession and provide referrals, contacts throughout the province and practice support. The collegiality fostered

by Sections and Forums strengthens the profession as a whole as well as providing positive, professional guidance to each other.

Professional development provided through Sections and Forums provides timely and current updates on recent cases, practice developments, and emerging issues. This quick and efficient method of learning is attractive to many lawyers and is now emulated by others. Some Sections are also offering longer PD sessions and bi-annual events such as the Wills & Trusts Section Retreat this past May. For even more professional development, sign up for Portfolio and Portfolio Plus packages, our nationally-accessible prepaid professional development at a guaranteed 20% discount.

The BC Branch is proud to offer the BC Advantage in response to our members’ requests. Please help us spread the word so that more of the legal profession can keep current and connected!

Kerry L. Simmons, QC Chair, Membership Committee (2014/15)

ksimmons@cookroberts.bc.ca AUGUST 2014 / BARTALK 5

practicetalk DAVID J. BILINSKY

Practising Patience

The art of dealing with frustrating people It means no worries for the rest of your days It's our problem-free philosophy Hakuna Matata! Hakuna Matata! Hakuna matata! .... r r

I

– Music by Elton John, lyrics by Tim Rice, performed by M. Casella, T. Allan Robbins, S. Irby-Ranniar, and J. Raize

t goes without saying (but I will say it anyway) that the practice of law can be frustrating at times. I get calls on a regular basis from lawyers who are trying to deal with demanding self-represented parties (some of whom seem to adopt a hyper-aggressive stance to all and sundry); with counsel who are overly assertive and who refuse to accommodate anyone’s calendar except their own; with clients who adopt a scorched-earth policy toward all opposing parties in litigation and unfortunately, from partners who perhaps are facing the effects of burnout in themselves and are taking it out on those near them.

What is a lawyer to do? For one thing, it is infinitely easier to help someone else with a frustrating situation than dealing with one yourself. The detachment and clarity of thought that you achieve by looking dispassionately at someone else’s problem, as opposed to your own, cannot be overstated.

The first thing to do when you get caught in a frustrating situation is to close your eyes and take a deep breath or two and let them out slowly. Will yourself to relax.

Recognize that the "fight or flight" response has been triggered and that you need to rein that in before you can go on. To be an island of calm in turbulent seas is a skill that can be learned and nurtured.

Next, notwithstanding what has been said, focus on the issues and not on the people. Responding to a personal attack, particularly if

6 BARTALK / AUGUST 2014

you were the person attacked, will only elevate the emotional temperature and make the eventual dealing with the issues even harder.

Stop and listen to what the other person is saying. Don’t interrupt,

The practice of law can be frustrating at times. don’t adopt an aggressive body posture or prejudge what that person will say. Try to understand what is motivating the person’s behaviour. State your needs and your remedies relative to what needs to get done. See if the other person responds in kind and starts dealing with the issues rather than the emotions. If not, then you may have to take steps, going forward, to only deal with this person in writing, thereby creating a record

of how you are dealing with the situation (that can either be used defensively to counter any allegations of professional misconduct or offensively if this matter has to go before a judge in order to move it forward). If this person happens to be a client, then you may have to take steps to end your retainer as professionally as possible (on the grounds of there being a "serious loss of confidence between solicitor and client"). If this is a partner, then LAP and/or counselling may be in order.

Whenever you are in such a situation, consult with a colleague. Both of you will learn from the situation.

While it is unrealistic to believe that we can go through life without ever encountering difficult situations, keeping our principles and values close at hand and utilizing clear and unemotional communications that establish boundaries and constrain the discussions to the issues at hand will go a long way toward dealing with life’s little frustrations.

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 What online resources are available if you find yourself in a frustrating situation and looking for solace, advice or relief?

Here are a selection of ideas and websites where you can start your journey to a better place:

BRAINY QUOTE (brainyquote.com/quotes/keywords/frustration.html) Read some quotes on frustration that allows you to share and experience how some people turned adversity into some truly creative thoughts.

INC. (inc.com/kevin-daum/6-ways-todeal-with-frustrating-people.html) Kevin Daum, writing for Inc.com lists his suggestions for dealing with frustrating people who are standing in the way of your success.

ABOUT (stress.about.com/od/tension tamers/a/stressrelievers.htm) 25 Ways to Reduce Stress includes such ideas as listening to music or more actively, learning assertive communication skills to deal with those who are causing you stress and frustration.

DRAGOS ROUA BLOG (dragosroua.com/33-ways-toovercome-frustration) This is a great article on 33 ways to overcome frustration. This is a great list of ideas and I especially liked the last suggestion: write out a list of 33 ways to overcome frustration.

FORBES (forbes.com/pictures/lmj45kihh/ think-they-know-it-alls/) Do you work with frustrating coworkers? Forbes lists the 13 most frustrating co-worker types and how to deal with them.

Humour is at times the best medicine... if everything else fails, try a lighter approach…

ABOUT (stress.about.com/od/positiveattitude/ht/humor.htm) Elizabeth Scott M.S. writing for About.com lists 10 ways to maintain a sense of humour when faced with life’s challenges.

Her suggestion to reframe your situation – or see it through a new lens – is a wonderful suggestion to get past the frustration and see it in a new light.

YOUTUBE (youtube.com) Use humour to get over the situation and move to a more positive mental state. Here you can watch funny YouTube videos such as the Epic Rap Battles of History series of videos [such as: Stephen Hawking vs. Einstein; Mr. T vs. Mr. Rogers; Steve Jobs vs. Bill Gates, etc.] or the Funny Cat and Dog videos that are all over YouTube.com.

COMPLETE WELLBEING (completewellbeing.com/article/laugh-and-be-well/) The Laugh and Be Well article on the Complete Wellbeing website offers some great advice on always trying to find something to laugh about when having a bad day.

APP SHOPPER (appshopper.com/games/ frustration) Have an app for that? Yes, the Frustration game app is available for the iPhone (free!)

YOUTUBE (youtube.com/watch?v= JrdEMERq8MA) And of course, “If life looks jolly rotten, there is something you’ve forgotten! And that is… always look at the bright side of life!” This is a sing along video with the Monty Python gang with the lyrics displayed. Watching this should bring a smile to just about anyone no matter how frustrated they may be. © 2014 David J. Bilinsky

AUGUST 2014 / BARTALK 7

nothingofficial TONY WILSON

What To Do About the Cost of Real Estate?

How about a “Housing Speculation Tax?”

A

few weeks ago, my wife and I looked at a condo for sale in Vancouver’s Olympic Village, just in case we ever decide to sell our house in New West and downsize. Although the building was nice and it had a peekaboo view of False Creek, an 1100 ft.² condo with three small bedrooms was listed at $900,000. $900,000 will get you something very nice on the street I grew up on in “North Oak Bay.” Maybe a view of a lake in the Sunny Okanagan. A nice home near a golf course in South Surrey. Or perhaps a palace on the Sunshine Coast or elsewhere in BC. Recently, the New Yorker argued that Vancouver was now a “hedge city” in a world where real estate was now a global commodity. Vancouver offers comfort, security and protection from the possibility of climate change and political and economic upheaval in a dangerous world.

Quoting Bing Thom architect Andy Yan: “If the choice is between losing 10 to 20% in Vancouver versus potentially losing 100% in Beijing or Tehran, then people are still going to be buying in Vancouver.”

Unfortunately, a city that appeals to foreign oligarchs and the uber-rich creates its own issues for the rest of us. Last year, my assistant quit and said: “My husband and I are moving to Edmonton.”

Even though they lived in a condo in the suburbs and the commute was only 30 minutes on the Skytrain, they wanted a house with a yard. Yaletown, Kits and other parts of Vancouver may be funky, but this couple couldn’t afford any kind of house with a yard without living far away in Mission, Maple Ridge or another community where the commute could be an hour and a half each way.

This raises three important issues.

First, how are my two university

8 BARTALK / AUGUST 2014

age children going to be able to afford to live in the neighbourhood they grew up in, even if they become lawyers?

Second, who’s going to be able to afford to buy my house when it comes time to downsize and retire? Who are the future buyers of the million-dollar houses? And third, what happens when our young lawyers and support staff tell you they’re sick of living in a 650 square-foot condo, so they’re quitting to take up another job in Edmonton?

The media is filled with surveys about how wonderful Vancouver is and that virtually every year Vancouver ranks on par with, (or slightly behind) Zürich, Geneva, Melbourne and Auckland as the most wonderful places in the world to live. In fact, the Mercer Quality of Living Survey for 2014, released on February 19, had Vancouver pegged as the city with the highest quality of living in North America and the fifth highest

quality of living in the world, (despite the bloody bike lanes).

But did you know that Singapore imposed a 10% tax on residential property purchases by non-permanent residents (foreigners) in 2011, which was raised to 15% in January 2013 to fight “excessive speculation in the property market?”

Hong Kong imposed a 15% tax on home purchases by foreigners in 2012 “under growing pressure from residents who can’t afford home purchases.” And to stabilize the market and cool down speculation, Hong Kong also raised taxes by up to 20% on land sold within three years of its purchase, whether foreign owned or not.

Perhaps it’s time to think more long term in Canada’s hottest real estate market. If offshore speculation is driving up real estate values in Vancouver to the point where our legal assistants and young lawyers are moving “far away” to live and work and our children can’t afford to live in the neighbourhoods they grew up in, perhaps it’s time to seriously consider a Housing Speculation Tax, just like Hong Kong and Singapore did. (Maybe the revenue could be earmarked for education).

Just don’t use the initials HST when it’s brought in.

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

guest ALEXANDER COOMBES

BC Legal Services

Subject to double tax?

T

he Canadian Bar Association has passed a resolution titled: “Double Taxation on Legal Fees and Other Professional Services.”1 What is double tax? How does it apply to British Columbia legal services? Both Provincial Sales Tax (“PST”) and Goods and Services Tax (“GST”) or Harmonized Sales Tax (“HST”) apply to legal services. The rules that say when PST applies are different from the rules that say whether it is GST or HST that applies. This can cause double tax: PST and HST (of a province other than BC) applying to one legal bill.

PST applies to legal services provided to clients in BC. PST can also apply when a client is not in BC. In that case, PST applies if the services have certain connections to BC. For example, PST applies when a non-BC client gets advice from a BC lawyer relating to real property, goods, or litigation (including potential litigation) in BC.2 The GST/HST rules are quite different. For Canadian clients, services are deemed to occur in a particular province, regardless of where the services actually occur.

The GST or HST of that province will then apply. The default province is where the client is. This rule is then modified in a number of situations. For example, services related to real property are

deemed to occur wherever the real property is. Litigation services are generally deemed to occur in the province of the court with conduct of a matter, after the court action commences.

The following are some examples of how subtle differences in the rules can cause double tax.

BC Law LLP has a client with one address in Ontario. The client wants advice about selling products in BC, which it plans to do. The GST/HST rules will say to charge Ontario HST. The PST rules will say PST applies because

Though situations of double tax may be few and far between, failure to detect the issue could create lurking liabilities for lawyers. goods may be sold in BC. 20% tax is applied to the legal bill (7% PST + 13% HST).

The Ontario client is also considering a lawsuit in BC. The client would prefer to settle rather than litigate, but is thinking

about litigation. PST applies.

However, the GST/HST rule says before a notice of civil claim is filed, HST applies. After the notice of civil claim is filed GST applies.

Both 20% and 12% tax could apply to the same retainer.

If the client wants assistance with a BC real property sale, no double tax arises: PST and GST apply.

For many lawyers, this issue may rarely arise. Also, many clients get an input tax credit (“ITC”) for GST and HST paid in the course of commercial activities, recovering the non-PST tax regardless of whether GST or HST applies.3 There is also a rebate some clients (who cannot get an ITC) may claim to get back some of the HST. Claiming this rebate may be tricky.

Several conditions must be met.

Lawyers have a duty to collect and remit PST and GST/HST. Though situations of double tax may be few and far between, failure to detect the issue could create lurking liabilities for lawyers.

A full copy of the text of the resolution is available by clicking here.

2 The rules for determining whether and how PST and GST/HST apply are complex. A full discussion of these complicated rules is well beyond the scope of this article. Readers should review the relevant rules.

3 Not all clients will be entitled to an ITC, including some that may appear to be in business.

1

Alexander Coombes practises at Dentons Canada LLP and is a member of the CBABC Business of Law Committee, which is exploring this issue.

AUGUST 2014 / BARTALK 9

sections Criminal Justice Nanaimo

SECTION UPDATE

Keep Current A review of The Nanaimo RCMP hosted members of the Criminal provincial Section meetings. u Justice – Nanaimo Section at Criminal Justice – Nanaimo Meeting in Review: June 13, 2014 Speaker: Cpl. Norm Smith and other RCMP members Topic: Impaired Driving By Alcohol or Drugs: Evaluation Procedures Photo taken at Law Week 2010

CBABC Criminal Justice Vancouver Section Annual Dinner Event Meeting in Review: June 25, 2014 Speaker: The Honourable Judge Patrick J. Healy, Criminal and Penal Division, Court of Québec Topic: Recent Reforms in Sentencing Law

Insurance Law Section Meeting in Review: June 19, 2014 Speakers: Rick Lindsay, QC and Simon Margolis, QC Award Winner: Bruno De Vita, AHBL (pictured) Topic: Insurance Lawyer of the Year Award Dinner and AGM

NEWS

Inaugural Law School Essay Competition Winner Nivi Ramaswamy of the UBC Faculty of Law is the winner of the 2014 CBA National Intellectual Property Law School Essay Competition for her paper entitled, “Injunctive Relief in Patent Infringement Cases: Balancing Patent Protection Against Patent Trolls.” Nivi was recognized for her work at the Judges’ Dinner on June 12 in Ottawa. Read the paper here.

10 BARTALK / AUGUST 2014

their police station on June 13, 2014. Cpl. Norm Smith provided comprehensive information on immediate roadside prohibitions, impaired and over 80, and drug impaired driving. Information included police discretion, driver penalties, drug recognition experts and the overall perceived effectiveness of each regime. Cpl. Smith also provided information about the use of the approved screening device, the Breathalyzer and the Intoxilyzer. After consuming the alcohol of their choice, attendees were invited to provide samples of their breath into both the approved screening device and the Intoxilyzer, and to perform standard field sobriety tests. Due to the limits placed on attendees by the Controlled Drug and Substances Act, no drug recognition expert tests were performed.

CBABC Criminal Justice Vancouver Section Annual Dinner Event The Criminal Justice – Van-

ucouver Section hosted its

annual dinner on June 25, 2014 in conjunction with the CBABC’s Professional Development and the International Society for the Reform of Criminal Law. The event was attended by a number of esteemed jurists in the field of criminal law, including The Honourable Justice Thomas Cromwell of the Supreme Court of Canada, and justices from the Courts of Appeal of British Columbia, Quebec and Ontario. The Honourable

Judge Patrick Healy of the Court of Quebec was the featured speaker on the topic of proportionality in sentencing. Attendees honoured a number of judges who have recently retired from BC’s three levels of court, and enjoyed a summer evening of collegiality at the Law Courts Inn, Vancouver.

Insurance Law Section On June 19, 2014, the

uCBABC Insurance Section

held its Annual General Meeting and awards ceremony for the Insurance Lawyer of the Year.

Bruno De Vita was the recipient of this award, in recognition of his unflinching professionalism and dedication to mentoring the young lawyers at his law firm, Alexander Holburn Beaudin + Lang LLP, where Bruno is also the managing partner. Bruno was congratulated by his peers with rousing speeches from Simon Margolis, QC and Richard Lindsay, QC. The CBABC Insurance Section also announced its 20142015 Executive Scott Harcus as the new Section Chair.

CHATTER WITH CHAIRS

John Bilawich

CIVIL LITIGATION – VANCOUVER John Bilawich has served as a member of the Civil Litigation – Vancouver Section Executive for five years. He began as a Section Secretary in 2009 and was elected as Chair in 2011. John attended law school at the University of Alberta (LL.B. 1991). He practised general civil and family litigation in Victoria (1992–2000). In 2000, he married his beautiful wife Ana-Maria, relocated to Vancouver and joined Holmes & King. We would like to thank Mr. Bilawich for his continuous support and asked him to share his thoughts as outgoing Section Chair: “I have a strong interest in continuing legal education generally and wanted a volunteer outlet to help me explore and develop that. Being a Section Executive provides exceptional opportunities for working closely with other members of the executive, prominent guest speakers, including judges, masters, registrars, senior lawyers and academics. I have met hundreds of Section members at Section meetings. I have had the opportunity to get involved as a CBA representative in numerous ad hoc consultations with the court and government, including providing feedback on various draft legislation, technology in courtrooms and court services. My involvement in the Section Executive has been extremely rewarding – far more diverse than anything I expected when I first decided to get involved. I highly recommend it to anyone seeking an enriching volunteer experience.” His closing advice for future Section Executives was “You will get out of the experience what you decide to put into it. The more initiative you take once you get involved, the more opportunities you will find coming your way for networking with others and enjoying enriching, rewarding volunteer experiences.”

AUGUST 2014 / BARTALK 11

features JEREMY GUILD

Search Incident to Arrest and Cellphone Privacy Vindicating informational privacy

A

midnight knock on the door is the nightmare of the police state. For many, the spectre of police searching their smartphone based on a reasonable suspicion it may contain evidence is as intrusive as the midnight knock. Recent decisions have changed the face of privacy interests, perhaps foreshadowing the outcome of a pending Supreme Court of Canada (SCC) decision of a search incident to arrest (SITA) of a cellphone.

In Giles, 2007 BCSC 1147, MacKenzie J. (as she then was) was not persuaded that password protection, encryption or the significant capacity to store information made a BlackBerry different from a logbook, diary or notebook, allowing police a virtually unfettered ability to search a cellphone for evidence of the offence for which a person was arrested. Subsequent decisions by other courts accorded computers, and the information they can contain, a greater privacy interest.

Until this year, Giles was followed in BC. In Vye, 2014 BCSC 93, the police searched the accused’s iPhone three times without a warrant. Vye only contested the third, a forensic examination nearly a year after seizure. Thompson J. held that the foundational pillars of the reasoning in Giles were overtaken by Vu, 2013 SCC 60, where the court said (para. 45):

12 BARTALK / AUGUST 2014

“The animating assumption of the traditional rule – that if the search of a place is justified, so is the search of receptacles found within it – simply cannot apply with respect to computer searches.”

The June 13, 2014 decision in R. v. Spencer, 2014 SCC 43, has made it clear that informational privacy is alive and well. The court held that a police request for subscriber information of an IP address from Shaw was a search for the identity of an Internet subscriber which corresponded to particular Internet usage. The Crown’s characterization of the information as “phone book” information glossed over the significance of an IP address and what such an address can reveal. The proper approach was to look at the nature of the privacy interests potentially compromised, not just by the information sought, but also by what that information reveals.

The court recognized three informational privacy interests: confidentiality; control of dissemination of information; and anonymity, the latter being particularly important in the context of Internet usage: “Internet users do not expect their online anonymity to cease when they access the

Internet outside their homes, via smartphones, or portable devices.”

But the court also said that their reasons did not address or diminish any existing police powers to obtain subscriber information in exigent circumstances. Notably, SITA was not mentioned.

Five days later the BC Court of Appeal released R. v. Mann, 2014 BCCA 231. The court did not refer to Spencer nor differentiate between a smartphone and a “regular” cellphone: “In summary, the law as it stands today no longer permits police to conduct warrantless searches of the entire contents of an individual’s cellphone. I offer no comment on the permissible grounds of a ‘cursory’ search, or other difficult questions pertaining to search incident to arrest and cellphones...”

The greater privacy interests have implications for a SITA. The necessity for a search warrant or higher justification to search other highly private places already exists – in a home, even where exigent circumstances exist: Silveira, [1995] 2 SCR 297; bodily fluids: Stillman, [1997] 1 S.C.R. 607; and strip/cavity searches: Golden, 2001 SCC 83.

The SCC heard the appeal of R v. Fearon, 2013 ONCA 106, on May 23, 2014, reserving judgment. The cellphone was not a “smartphone.” Fearon argued that, except in exigent circumstances, even a cursory search was not permissible as a SITA. Jeremy Guild has practised primarily in criminal law for more than 24 years, both as a prosecutor and for the defence.

MARKO VESELY

Defences to the Tort of Defamation

Absolute privilege outside the courtroom

A

bsolute privilege is one of the most powerful defences in the law of defamation. The privilege is “absolute” because it cannot be defeated even if the plaintiff proves that the defendant spoke the words with actual malice and knowing them to be false. The occasions on which the privilege arise include communications made by executive officers of state, parliamentary and legislative officials (e.g., Guergis v. Novak, 2012 ONSC 4579), or persons – including lawyers – involved in the furtherance of judicial or quasi-judicial proceedings (e.g., Monument Mining Ltd. v. Balendran Chong & Bodi, 2012 BCSC 1769).

In two very recent decisions, our courts have had the opportunity to test how far the defence will be extended to administrative tribunals and regulatory bodies.

In deciding whether the tribunal is sufficiently judicial to warrant the privilege, the court will consider (1) under what authority the tribunal acts (is it “recognized by law”); (2) the nature of the question into which it has a duty to inquire (is the subject matter similar to what comes before the courts); (3) the procedure adopted by it to carry out the inquiry (does it operate in a manner similar to the courts); and (4) the consequences of the conclusions reached by the tribunal as a result of the inquiry

(does it make binding determinations with respect to the rights of a party or parties).

In Wilson v. Williams, 2013 BCCA 471, the court held that absolute privilege did not apply to statements made in letters submitted by persons who had registered as interveners in a review conducted by the British Columbia Utilities Commission under section 71 of its enabling statute.

The Commission conducted a review of an energy supply contract. The trial judge had held that the Commission’s review was an occasion of absolute

Absolute privilege is one of the most powerful defences in the law of defamation. privilege but held that the letters fell outside the scope of that privilege. The Court of Appeal dismissed the appeal, finding that a section 71 review was not an occasion of absolute privilege at all (though the court noted that it should not be taken as deciding whether absolute privilege might apply to other proceedings before the Commission).

The court considered, in detail, the

framework to be applied in determining whether the proceedings of an administrative tribunal will be an occasion of absolute privilege.

The court held that, while a section 71 review has some characteristics similar to that of a court, its process lies closer to the administrative end of the spectrum because, in such a review, the Commission weighs public interest considerations and does not determine legal rights or impose sanctions.

Fouad v. Longman, 2014 BCSC 785, was a defamation case arising from an acrimonious dispute among a group of medical doctors who lived and worked in Port Alberni. The court held that several of the statements were made on an occasion of absolute privilege. These included communications to the College of Physicians and Surgeons of British Columbia concerning the conduct of its members, and letters sent to the Health Professions Review Board, which is an independent tribunal tasked with reviewing the adequacy of investigations conducted by the inquiry committee of the College and the reasonableness of its decisions. Finally, the court held that proceedings before the Residential Tenancy Branch attract an absolute privilege, as its core function is to adjudicate disputes in which parties present evidence and make submissions, appeals are heard and orders enforced, and the principle of judicial independence applies.

Marko Vesely practises commercial litigation, including defamation cases, as a partner with Lawson Lundell LLP in Vancouver.

AUGUST 2014 / BARTALK 13

features MICHAEL WELSH

The “Truth in Sentencing Act”

A cautionary tale about disrespecting judges

T

he fate of this recent Criminal Code amendment conjures up the famous French aphorism, “plus ça change, plus c’est la même chose.”

Taking a leaf from US initiatives to ensure the convicted serve the actual period to which they are sentenced, the Canadian government, in February 2010, passed Bill C-25, amending the Criminal Code (Code) provision on crediting pre-sentence detention.

Section 719(3) of the Code had stated, “[i]n determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.” While not obliged to give credit, it must consider whether to do so.

But the Supreme Court of Canada (SCC) in R. v. Wust1 instructed trial judges that it was an error in principle to fail to generally give double credit (two days for each day of pre-sentence detention), based on two considerations.

Firstly, a prisoner serving time before sentence is not in a position to have this time credited toward parole eligibility…

This is why such custodial periods attract the appellation “dead time.” Secondly, there is often greater hardship associated with pre-sentence custody, including a lack of access to the types of programming

14 BARTALK / AUGUST 2014

available in most institutions where offenders are incarcerated after being sentenced.2 These judge-made principles clearly cut no mustard with Parliament. Two was too much. Section 719(3) was amended to add:

A judge may allow a maximum credit of one day for each day of “dead time.”

If the circumstances justify it, a judge may allow a maximum credit of one and one-half days for each day of “dead time,” but must give reasons for this.

The obvious intent was to ensure judges generally gave 1/1 credit, departing for 1.5/1 only as an “exception.” The Justice Minister said he acted as judges were eroding “public confidence in the integrity of the justice system” and perpetuating “untruth in sentencing.” But interestingly, the legislation is written so opaquely that judges are given no direction on when departure is justified.

Judges quickly used that opaqueness. In Johnson, a 2011 Ontario Charter challenge, the judge held the norm should be 1.5/1, noting the amendments do not limit enhanced credit to exceptions, but rather “if the circumstances justify it.” As 1/1 credit creates a longer effective sentence for a detained person than the same sentence for

those on bail, it constitutes such a “circumstance,” as 1.5/1 credit brings the two situations into rough parity.3 Eventually, out of a patchwork of conflicting decisions, the appellate courts in Ontario4, Quebec5, Alberta6, Manitoba7, Nova Scotia8 and Newfoundland9, reached the same conclusion as Johnson.

Only the British Columbia Court of Appeal disagreed.10 Naturally the whole matter recently landed in the lap of the SCC.11 Based on Wust, the SCC sided with the majority of appellate courts. It said the amendments cap “pre-sentence credit [at 1.5/1], but... Parliament gave no indication it intended to alter the reasons for which enhanced credit can be granted. Neither the language of the provision nor the external evidence demonstrates a clear intention to abolish one of the principled rationales for enhanced credit. A rule that results in longer sentences for offenders who do not obtain bail is incompatible with the sentencing principles of parity and proportionality. The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5/1, even if the conditions of detention are not particularly harsh, and parole is unlikely.”

So the circle closes, only at 1.5/1 rather than 2/1. Judicial principles win the day.

Michael Welsh is a criminal and civil trial lawyer, mediator and arbitrator in the Okanagan with over three decades of courtroom experience.

Click on footnote number above for more information.

1-11

OLIVER BUTTERFIELD

Eyewitness Identification

The spectre of wrongful convictions

1

977. UBC Law School. Evidence class. Topic: frailties of eyewitness identification.

Our eager young professor had devised a didactic skit for us, in which an intruder burst into the classroom, accused him of theft, liberated a pen from his breast pocket, then exited indignantly. The idea of course was to ask us questions afterwards about the physical characteristics and actions of the intruder. The professor hoped that inconsistencies in response would demonstrate the unreliability of human observation.

The experiment was imperfectly successful, mostly due to miscasting: the “angry” intruder was an undisguised, well-known and popular young member of the law faculty.

None of us had any difficulty identifying or describing her. Also, ire was out of character for her. In fact she’d broken out in a warm smile mid-skit. This detracted significantly from the air of reality (which was low to start with).

I believe, and hope, that this was the pair’s last venture into thespianism. But they did both move on to distinguished legal careers, co-authoring a textbook for civil litigators along the way. The professor, Jim Taylor, earned a QC and other honours; the supporting actor, Bev McLaughlin, became Chief Justice of Canada.

But back to the skit: despite its limitations, it was educational and meritorious. The list of wrongful

convictions based on erroneous eyewitness identification in both American and Canadian law is an uncherished part of the continent’s legal history. Doherty JA said it best in the 1990 Ontario case of R v Quercia; “The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law.” See also R v Hay 2013 SCC 61.

In the 2001 Inquiry into the wrongful conviction of Thomas Sophonow on a charge of first degree murder, former Supreme Court of Canada Justice Peter Cory was presented with expert evidence that out of 74 confirmed wrongful convictions, “it was discovered that in

In 81% of the cases, mistaken identification evidence significantly contributed to the wrongful conviction.

81% of the cases, mistaken identification evidence significantly contributed to the wrongful conviction.” This appeared to be based on the American experience, but it is clear from Mr. Cory’s conclusions that Canada does not lag far behind, if at all, in this lamentable statistic.

A partial summary of Mr. Cory’s Inquiry recommendations for trial

instructions regarding eyewitness identification was as follows: There must be strong and clear directions given by the trial judge to the jury emphasizing the frailties of eyewitness identification.

The jury should as well be instructed that the apparent confidence of a witness as to his or her identification is not a criterion of the accuracy of the identification.

The trial judge should stress that tragedies have occurred as a result of mistakes made by honest, right-thinking eyewitnesses. It should be explained that the vast majority of wrongful convictions of innocent persons have arisen as a result of faulty eyewitness identification.

Judges should consider favourably and readily admit properly qualified expert evidence pertaining to eyewitness identification.

This is not junk science.

Careful studies have been made with regard to memory and its effect upon eyewitness identification. Jurors will benefit from the learning of experts in this field.

The judge should advise the jury that mistaken eyewitness identification has been a significant factor in wrongful convictions in the United States and Canada, with a possible reference to the Sophonow case.

Regrettably (with a few courageous exceptions), the recommendation regarding the admission of expert testimony is overdue for acceptance in Canadian law – and perhaps ripe for a second look by members of our highest court.

Oliver Butterfield is a criminal defence lawyer in Kelowna.

AUGUST 2014 / BARTALK 15

features JONATHAN J. WEISMAN

Development in Economic Torts

Unlawful interference comes of age

U

nlawful interference with economic interests has long been relegated to the “developing torts” chapter of Klar, et al. The Supreme Court of Canada's decision in A.I. Enterprises Ltd. v. Bram Enterprises Ltd. may entitle it to headline its own chapter, but will also keep it in development for now.

An early and vivid example of this tort is found in Tarleton v. McGawley. The ship Othello fired on local traders, driving them away from the competing ship Bannister. The Othello's owner proved liable to compensate the Bannister's for this use of force against a third party.

In A.I. Enterprises, Cromwell J. refers to the “confusion, overlap and inconsistency” plaguing the economic torts. [para. 28] Indeed, unlawful interference has been conflated with inducement of breach of contract [Verchere v. Greenpeace Canada, 2004 BCCA 242, para. 28]. A.I. Enterprises separates these two frequent companions.

Simply put, unlawful interference consists of economic harm intentionally inflicted by unlawful means. [para. 28] The critical elements are therefore intention and unlawful means.

Cromwell J. interprets the tort’s scope by reviewing its rationale. [para. 36] Some argue that it represents the law’s drive to compensate

16 BARTALK / AUGUST 2014

victims of intentional harm, here protecting market competition from cheaters. Others suggest that it is an extension of the right to sue from the victim of a wrongful act to a third party targeted by that act.

Cromwell J. stands with the latter. The “intentional harm” approach, he concludes, would lead to a broad definition of unlawfulness. [para. 42] Many otherwise tolerable acts could become tortious. He also rejects the market protection principle because it would extend compensation to negligent acts, broadening the tort beyond the intentional.

The “extension of right” approach, Cromwell J. reasons, reins in the tort's reach. Unlawful interference expands “the range of persons who may sue for harm intentionally caused by existing actionable wrongs.” [para. 45] On this account, it represents a parallel in tort law to the modern extension of privity in contract.

Unlawful means, then, are acts which, “under common law principles... give rise to a civil action by the third party.” [para.

45] “Actionable” has a special meaning here. It includes wrongdoing that would be actionable if the victim had suffered damage.

Query here what role waiver of

tort and disgorgement might play.

Further questions arise. Do “civil actions” include proceedings under rights legislation, or are those excluded as statutory? Cromwell J. proposes that a breach of statute can constitute “unlawful means” if actionable as in Saskatchewan Wheat Pool. But that case subsumes breaches of statute in negligence – is that consistent with the element of “intention”?

Cromwell J. likely accepts any inconsistency because this “intention” is in the targeting of the plaintiff, and not in the underlying wrongdoing. [para.

95] The extension of right depends on the court imposing consequences on the defendant’s intention to impact a third party – paralleling, again, the extension of privity.

Reckless indifference and foreseeability are not enough.

Incidental harm is an acceptable consequence of competition. The defendant must intend to cause harm either as an end in itself, or for some ulterior motive. [para.

95] The line between the latter category and foreseeability is grey, for now.

The court refused to restrict the tort to cases where the plaintiff and third party have an existing relationship. [para. 93] This gives it a far broader scope than inducement of breach of contract. The possibilities opened by this alone are enough to fill a new chapter in the economic torts.

Jonathan J. Weisman practises commercial and trust litigation with Holmes & King in Vancouver.

PETER J. ROBERTS

The Rise of Civil Forfeiture

Free money or unfair shakedown?

B

ritsh Columbia’s Civil Forfeiture Act (“CFA”) came into force on April 26, 2006. It was based on similar and earlier legislation in Ontario. To date, in excess of $43 million has been “recovered,” going from $600,000 in 2006 to $9.5 million in 2013. The number of forfeiture claims has also expanded from 69 in 2008 to more than 460 in 2013. As of January 2014, there were 550 ongoing cases. An overwhelming number of forfeiture cases (99%) are “settled,” most involving significant “recovery.” A government news release tells us that the “civil forfeiture program is helping to make BC an even safer place to live.” From the provincial government’s perspective, it is a wildly successful program.

The CFA is not without its critics. About all that can be said presently is that it is here to stay so we better get used to it. In that spirit, what follows is a bullet point review of useful information and what the courts have said so far about the CFA:

The CFA establishes the Civil Forfeiture Office (“CFO”) and creates the position of Director, currently Phil Tawtel.

A forfeiture claim is an in rem claim against the subject asset, as opposed to an in personam claim against persons with an interest in the asset. The Director must give notice of a forfeiture claim to anyone believed to

have an ownership interest in the asset (s. 4).

The Director has no independent powers of investigation. Files are referred “voluntarily” to the CFO by police agencies and other public bodies such as I.C.B.C.

The Director may obtain interim and permanent preservation orders (s.8) where it establishes a “serious question to be tried” over whether the subject asset is proceeds or an instrument of unlawful activity.

This is often done to create practical and economic pressure to “settle.”

An asset must be forfeited (s. 5) if the court is satisfied, on a balance of probabilities (s.16), that it is either the proceeds or an instrument of unlawful activity (s. 3).

Proof of a criminal conviction is proof under the CFA that a person engaged in unlawful activity (s. 17), however an acquittal or the absence of criminal charges does not preclude a finding of unlawful activity (s.18).

A party may seek relief from forfeiture on various grounds, including the interests of justice (s.6). The factors established to date include proportionality, fairness, the degree of culpability, complicity or knowledge, the nature of the unlawful

activity, the need to remove profit as a motive for crime, the disgorgement of wrongfully obtained profits, the need for compensation and prevention of future harm: British Columbia (Director of Civil Forfeiture) v. Rai, 2011 BCSC 186.

The limitation period for a forfeiture claim is 10 years (s. 35).

In 2011, the CFA was amended to add Part 3.1 – Administrative Forfeiture of Subject Property.

This Part creates an administrative process to deal with the forfeiture of property “the director has reason to believe” has a market value of less than $75,000. Such a claim must be commenced within two years.

Forfeited assets are converted to cash and paid to a special account (s. 26). The Director then makes payments for its own costs, victim compensation and crime prevention and remediation programs.

The CFA is constitutional: British Columbia (Director of Civil Forfeiture) v. Wolff, 2012 BCCA 473. It does not infringe the federal powers to make criminal law: Chatterjee v. Ontario, 2009 SCC 19.

Violations of the Charter of Rights and Freedoms may provide defences and remedies (i.e., exclusion of evidence) for those fighting a forfeiture claim: Director of Civil Forfeiture v.

Lloydsmith, 2014 BCCA 72.

Peter J. Roberts, Partner, Lawson Lundell LLP, is a civil and commercial litigator with a wide range of experience, including claims involving allegations of fraud and, increasingly, forfeiture.

AUGUST 2014 / BARTALK 17

news&events CBA NATIONAL NEWS

The CBA Steps In RECENT SUBMISSIONS AND INTERVENTIONS The CBA’s Legislation and Law Reform team has had a busy spring, including an intervention at the Supreme Court on Proceeds of Crime legislation, several appearances before Commons and Senate committees, and submissions on proposed changes to the Canada Business Corporations Act, among others.

Below is a rundown of what the CBA has been doing:

St. John’s, Newfoundland & Labrador

Money-Laundering

CBA NATIONAL NEWS

CLC 2014 Converging Futures Lawyers and judges from across Canada will gather in St. John’s, Newfoundland & Labrador from August 15 to 17 for the annual CBA Legal Conference, which focuses this year on the future of the legal profession. A roster of dynamic speakers will provide food for thought about how the legal profession is changing and how lawyers can remain relevant, confident and able to deliver services in ways clients want and need.

Cirque Du Soleil’s former director of creation, Lyn Heward, will get creative juices flowing at the opening plenary session. The author of The Spark: Igniting the Creative Fire That Lives Within Us All knows what it takes to lead change and achieve success in a shifting landscape. Delegates can expect to enjoy great storytelling as she shares insights on creativity and innovation drawn from her unique experiences.

18 BARTALK / AUGUST 2014

Conference delegates will also learn the results of the much-anticipated CBA Legal Futures Initiative report. President Fred Headon will reveal key findings from the final report, which will offer insights on how legal professionals can adapt to change, take advantage of new opportunities, and innovate in their own working environment.

The agenda also includes the annual Dialogue with the Minister and an address to CBA Council from Supreme Court of Canada Chief Justice Beverley McLachlin.

Other keynote speakers include CBC personality Rex Murphy who will host an interactive discussion on the future of the profession and Zita Cobb who will discuss innovative approaches to business and law.

For more information on the conference visit cba.org/clc.

GO ONLINE FOR MORE INFORMATION

legislation the Citizenship Act Mandatory reporting standards Geographic price discrimination Canada Business Corporations Act consultation closed Bill C-13, Protecting Canadians from Online Crime Act In the Interests of Children: Response to Bill C-560 Bill C-31 Strengthening

Read more

CBA NATIONAL NEWS

The CBA at Work The Canadian Bar Association has had a busy – and high profile – spring, with written submissions to government, appearances before government committees and interventions at the Supreme Court. Oh, and did you catch us on the news?

Read more

CBA NATIONAL NEWS

Challenge Your Firm to Go Green!

The CBA’s National Environmental, Energy and Resources Law Section has developed an environmental sustainability challenge toolkit for law firms.

The main driver for the CBA Law Office Sustainability Challenge is a desire to improve the environmental performance of law firms across Canada.

The CBA Law Office Sustainability Challenge aims to meet this objective by engaging CBA members in improving firm-wide environmental performance and promoting sharing of best practices across the membership.

The toolkit provides firms with simple, straightforward, and effective ways to improve their environmental practices. Implementation of these strategies will result in: COST SAVINGS: Improving energy efficiency and reducing use of water, paper, and other inputs to your practice can reduce overhead costs. Green workplaces (e.g. those with low levels of off gassing from

office furnishings and coatings, those with good light and good indoor air quality) are also associated with improved health, resulting in increased productivity due to fewer sick days.

EMPLOYEE

RECRUITMENT AND RETENTION: Increasingly,

environmental issues factor into people’s choices about where to work. Green workplaces have been associated with greater productivity and employee satisfaction, which can translate into greater loyalty and lower staff turnover. Furthermore, the process of working toward shared environmental goals within the firm can contribute to a sense of team and community.

DEVELOPING

CORPORATE

RESPONSIBILITY:

Businesses of all sorts are increasingly under pressure from clients, consumers, employees, investors, and other stakeholders to “do the right thing” by improving environmental performance. Corporate responsibility is a business imperative for some companies and a company’s commitment to corporate citizenship can demonstrate its value to employees, clients and society at large.

EXPERTISE:

Many law firms are increasingly advising clients on environmental issues. Making environmentally-conscious decisions in-house helps to develop the expertise needed to improve credibility with clients and may lead to reputational lift.

To help your firm go green, go to cba.org/SustainabilityChallenge.

CBABC THANKS

CBABC Law Student Volunteers

The 13th Annual Battle of the Bar Bands took place at the Commodore Ballroom on June 13, 2014 and raised more than $130,000 for the CBA (BC) Benevolent Society. The night’s performers included TOAD, Lex Appeal, The Disclaimers, House Arrest, Still Living at Home, Standard of Hair and No Reply, with House Arrest walking away victorious at the end of the night.

Thank you to our Law Student Volunteers who have been assisting with different tasks in the CBABC Office this summer. L-R: Mike Scott, Thompson Rivers University Faculty of Law; Anna Kurt, University of British Columbia Faculty of Law and Salman Qayum Karin, Thompson Rivers University Faculty of Law.

AUGUST 2014 / BARTALK 19

news&events View from the North

FROM NORTHEASTERN BRITISH COLUMBIA TO YOU As I am moving back to the South, I reflect on some of the amazing experiences I have had during my two years in the North and share some of them below.

Highlights include: seeing blue sky on the horizon in the middle of the night in mid-June; skimming along at 40-plus miles per hour up the Pine River in only inches of water in a Teflon-bottomed riverboat; feasting on gourmet meals in the middle of the bush (carefully and expertly prepared on site); snowblowing my 250 foot driveway using the machine’s headlight because it was completely dark out by 5:00 p.m.; snow-shoeing along trails in four feet of snow; and watching the sun get lower on the horizon each day on my 20-minute commute into town and then after Christmas watching it climb back into summer.

The people here are eclectic, eccentric, esoteric, welcoming, warm and wonderful. Some have spent their lives here. Some, like me, are newcomers. Everyone has their own story of how they came North or came back.

I will forever carry with me fond memories of my friends and colleagues from the North: the Bar bar-b-ques, the after-work meetings at the WR, making music together sans charts, the civility of the Criminal Bar. I look forward to hearing from Northerners when they pass through Rome on their way to more exotic locations. As for anyone thinking of a move, the North is a great direction and I’ll gladly share my experiences with anyone considering it.

So long my good friends, I’ve really enjoyed my time here.

— Clint Sadlemyer, QC

NEWS

CLEBC Update NEW ONLINE VERSIONS OF CIVJI AND CRIMJI

CLEBC is pleased to announce that Civil Jury Instructions (CIVJI) is now available online, and that Criminal Jury Instructions (CRIMJI) will be available online later in 2014.

CIVJI is the only comprehensive set of civil jury instructions in Canada. The main part of CIVJI consists of approximately 100 standard instructions

20 BARTALK / AUGUST 2014

covering civil jury trial procedure, evidentiary matters, torts, defences, and damages. The instructions are comprehensively researched and heavily annotated.

CRIMJI is used across Canada by the judiciary and the criminal Bar. It features more than 150 instructions on trial procedures, evidence, and all major offences and defences, with extensive annotations, and user notes and checklists.

The instructions and summaries of law in both publications are invaluable references for judges and lawyers in both jury and non-jury trials.

Another good idea takes flight!

Six months ago the SoloLink listserv was launched to provide small firm practitioners an online network to share real-time resources with others throughout BC. More than 100 solo and small firm participants are actively sharing information, answering questions and uploading valuable resources. Starting September 1, 2014 SoloLink will be a permanent benefit of CBABC membership, along with access to all 78 Branch and 41 National Sections!

Join the online community by emailing sololink@cbabc.org today and get connected!

The new online versions include convenient access with search capability, links to the full text of cases and legislation, and downloadable instructions. Each subscriber to a print manual automatically obtains access to the online version. Practitioners may instead choose to subscribe to an Online Only version.

For further information, contact CLEBC customer service at 604-893-2121, or email us at custserv@cle.bc.ca.

BC LEGISLATIVE UPDATE

ACTS IN FORCE

Current from April 30, 2014 to June 24, 2014 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclusively at cbabc.org.

BUDGET MEASURES IMPLEMENTATION ACT, 2011, S.B.C. 2011, C. 9 (BILL 2) Sections 16 to 24 are in force June 6, 2014

BUDGET MEASURES IMPLEMENTATION ACT, 2014, S.B.C. 2014, C. 4 (BILL 8) Sections 12 to 14, 29 and 36 to 38, 44, 55, 90, 91, 95 and 98 are in force June 23, 2014

CIVIL RESOLUTION TRIBUNAL ACT, S.B.C. 2012, C. 25 (BILL 44) Sections 67 to 70 and 72 to 77 are in force June 23, 2014

FINANCE STATUTES AMENDMENT ACT, 2011, S.B.C. 2011, C. 29 (BILL 17) Sections 120 and 135 are in force May 26, 2014. Sections 121 and 122 are in force May 26, 2014

JUSTICE STATUTES AMENDMENT ACT, 2014, S.B.C. 2014, C. 9 (BILL 14) Sections 1, 3 to 5, 7, 9, 29 and 49 are in force June 23, 2014. Sections 30 to 36 and 43 are in force December 1, 2014. Sections 10 to 20, 22 and 24 to 26 are in force May 26, 2014

LIQUOR CONTROL AND LICENSING AMENDMENT ACT, 2014, S.B.C. 2014, C. 13 (BILL 15) Sections 1(b), (d) and (j), as it repeals the definition of “site”, 11, 13, 17(a), 18, 19(b) and (c), 22, 29, 31(a), (c), (m) and (n) and 33 to 35 are in force June 20, 2014

MISCELLANEOUS STATUTES AMENDMENT ACT, 2013, S.B.C. 2013, C. 12 (BILL 8) Sections 1 and 2(a) and (c) are in force June 1, 2014. Section 24 is in force May 26, 2014

MISCELLANEOUS STATUTES AMENDMENT ACT, 2014, S.B.C. 2014, C. 14 (BILL 17) Sections 50 and 51 are in force June 23, 2014. Sections 154 to 157 are in force June 1, 2014

For a complete list of Acts in Force

BRANCH & BAR

Calendar

AUGUST

4 British Columbia Day 7 CBABC PD: Advising your Clients or their Family on Disability Trusts — Webinar 8/15/22/29 LAP: Mindfulness-Based Stress Reduction &

Meditation for Lawyers — Vancouver 15-17 2014 Canadian Legal Conference — St. John's, Newfoundland and Labrador

SEPTEMBER

1 Labour Day 20 Provincial Council Meeting — Richmond 24-26 5th National Pro Bono Conference — Regina, Saskatchewan 24 CBABC PD/Victoria Bar Association Joint Seminar: IP Law for

the Non-IP Lawyer — Victoria

AWARD NOMINATIONS

CBABC MENTORSHIP PROGRAM

Georges A. Goyer, QC Memorial Award for Distinguished Service

Calling All Lawyers – Volunteer to Be a Mentor

Nominations are currently being accepted for the 2014 Georges A. Goyer, QC Memorial Award for Distinguished Service. This award recognizes the exceptional contributions and/or achievements by any resident of BC to the legal profession in BC.

Deadline is Friday, September 26, 2014 For details visit cbabc.org

CBABC is once again recruiting for lawyers young (and not) to join an exceptional roster of colleagues to lead new law students, as well as women and aboriginal lawyers through the maze of legal life. Give the gift of your experience and sign up to be a part of one of these rewarding programs. Volunteers are needed now for the student mentorship programs this fall at UBC, UVic and TRU. Plus, check out other opportunities with the CBABC Women Lawyers Forum and the CBABC Aboriginal Lawyers Forum. Interested?

Sign up today at cbabc.org/mentorship

AUGUST 2014 / BARTALK 21

news&events CBABC WLF NEWS

Lunching with Women Leaders Series This spring the CBABC WLF held a three-part “Lunching With Women Leaders Series” at the Law Courts Inn inspired by Sheryl Sandberg’s book “Lean In.” The series was presented by two lawyer coaches, Linda Robertson, National WLF CoChair, and Allison Wolf. The lunch presentations attracted participation from more than 200 lawyers.

Over the three presentations, Linda and Allison defined what leadership is and the role it plays in our personal and professional lives. They addressed the internal and external challenges to women’s leadership. They highlighted the importance of resilience and provided tips and strategies for boosting resilience. They then closed with a presentation on women’s natural leadership abilities and demonstrated how this approach to leadership is most effective and suited to our modern organizations and work lives.

The response to these presentations was highly positive and this education series has stood out as the most successful initiative of its kind in many years.

Send Us Your Ideas What Lawyers Do in the Community – Here and Abroad Do

you know someone who does extra work in your community or abroad? If so, send your ideas to bartalk@cbabc.org Submission deadline is Oct. 1, 2014 BarTalk welcomes new authors, contributors and content suggestions — simply send your request to bartalk@cbabc.org.

CBABC WLF Annual General Meeting The CBABC WLF wrapped up another great year at its AGM on June 18, 2014. Following introductions of new and incumbent Executive Committee members, the evening was capped off with an engaging panel discussion on “One Workplace, Several Generations.”

Upcoming CBABC WLF Events to Mark in Your Calendars Now! The CBABC WLF Ovarian Canada Walk of Hope team will gather on September 7, 2014 at various locations across BC in support of other women lawyers touched by this cancer and to help raise awareness. Last year’s team raised the bar by becoming the Top Team in Canada raising more than $38,000.

Let’s once again raise the bar!

The CBABC WLF will be kicking off its 2014–2015 year in September with the annual “Fall Launch & Hot Tips” event.

Further details will be announced soon – don’t miss it!

Click here for further information on these and other WLF programs and events.

22 BARTALK / AUGUST 2014

Need More Info?

1.888.687.3404 data@cbabc.org UPDATE YOUR INFO ONLINE CBABC.ORG/UPDATE

grantsapproved LAW FOUNDATION OF LAW FOUNDATION OFBRITISH BRITISHCOLUMBIA COLUMBIA

$75,000 NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETY Legal Advocacy Program $75,000 PENTICTON AND AREA ACCESS SOCIETY Poverty Law Advocacy Program

Outlined below is a list of grants adjudicated at the June 21, 2014 Board of Governors’ meeting.

Chair Tamara Hunter is pleased to announce that funding totalling $1,860,000 was approved for the following 18 continuing programs: $275,000 GREATER VANCOUVER LAW STUDENTS’ LEGAL ADVICE SOCIETY Law Students’ Legal Advice Program $230,000 BC BRANCH OF THE CANADIAN BAR ASSOCIATION Dial-A-Law / Lawyer Referral Service / Law Week $175,000 ECOJUSTICE CANADA SOCIETY BC Litigation Program $150,000 ABBOTSFORD COMMUNITY SERVICES SOCIETY Regional Community Legal Advocacy Program $150,000 TOGETHER AGAINST POVERTY SOCIETY Legal Advocacy Program $80,000 NELSON CARES SOCIETY Legal Advocacy Program $75,000 ACTIVE SUPPORT AGAINST POVERTY Legal Advocacy Program $75,000 CHIMO COMMUNITY SERVICES SOCIETY Outreach and Advocacy Program $75,000 CONTACT WOMEN’S GROUP SOCIETY Legal Advocacy Program $75,000 FORT ST. JOHN WOMEN’S RESOURCE SOCIETY Poverty Law Advocacy Program $75,000 KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETY Poverty Law Advocacy Program $75,000 KI-LOW-NA FRIENDSHIP SOCIETY Aboriginal Legal Advocacy Program

$75,000 PORT ALBERNI FRIENDSHIP CENTER Outreach Legal Advocate $65,000 SOUTH PEACE COMMUNITY RESOURCES SOCIETY South Peace Outreach Legal Advocacy Program $40,000 SOCIAL HEALTH & ECONOMIC DEVELOPMENT SOCIETY OF BELLA COOLA Bella Coola Legal Advocacy Program $20,000 PROVINCIAL COURT OF BRITISH COLUMBIA Judicial Interns Circuit Court Program

Funding totalling $259,000 was approved for the following seven large projects:

$15,000 NIDUS PERSONAL PLANNING RESOURCE CENTRE ASSOCIATION Health and Personal Care: A Toolkit on Consent Rights and Personal Planning in BC $13,600 CEREBRAL PALSY ASSOCIATION OF BC Legal Workshops for People with Cerebral Palsy $13,000 YWCA METRO VANCOUVER Leaving an Abusive Relationship: Information on Custody and Access for Women with Children – Update to Reflect Family Law Act $12,000 Land Trust Alliance of British Columbia Legal Resources for BC Land Trust

Funding totalling $120,000 was approved for the following three grants: $75,000 BC BRANCH OF THE CANADIAN BAR ASSOCIATION Rural Education and Access to Lawyers (REAL) Initiative

$50,000 COMMUNITY LEGAL ASSISTANCE SOCIETY Social Security Tribunal Transition Project

$25,000 ENVIRONMENTAL LAW CENTRE SOCIETY, UNIVERSITY OF VICTORIA ELC Associates and Intensive Clinic Program

$50,000 JUSTICE EDUCATION SOCIETY OF BC Virtual Legal Help

$20,000 TENANT RESOURCE AND ADVISORY CENTRE SOCIETY Tenant Survival Guide Reprint

$40,000 MOSAIC Access to Family Law Education for Newcomer Women in Underserved Communities $35,000 VANCOUVER COASTAL HEALTH AUTHORITY BC Trans Advocacy Toolkit $34,000 WEST COAST PRISON JUSTICE SOCIETY Prisoner Legal Education Revision and Family Law Projects $25,000 BC LAW INSTITUTE Employment Standards Act Reform Project $25,000 NENAN DANE ZAA DEH ZONA CHILDREN AND FAMILY SERVICES Know your Rights: Protect Our Children

Funding totalling $53,600 was approved for the following four small projects:

LEGAL RESEARCH FUND

The Law Foundation of British Columbia has established a fund of $100,000 per year to support legal research in British Columbia. The purpose of the fund is to support legal research projects that “advance the knowledge of law, social policy, and the administration of justice. The maximum amount available for each project is $20,000.

For more information about the Fund please refer to the Law Foundation of BC website at lawfoundationbc.org.

To be considered, please submit a Letter of Intent by September 19, 2014 for consideration at the November Law Foundation meeting, by mail, courier, fax or email.

AUGUST 2014 / BARTALK 23

professionaldevelopment EMAIL: PD@CBABC.ORG

WEBSITE: CBAPD.ORG \\

CBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network and 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 2014 Law Society of British Columbia reporting.

Webinar Repeats

CBABC offers an extensive library

You can catch up with your CPD hours at your own pace by watching one of the Webinar Repeats. Contact pd@cbabc.org for more details.

Upcoming Webinars in August

Did you miss any of our recent live Webinars?

Advising your Clients or their Family on Disability Trusts

Buying or Selling A Solo/Small

Firm Law Practice: Is that the Right Fit for You? An Anatomy of the Civil Forfeiture File: From Opening to Closing Civility in the Courtroom: Essentials for Trial Lawyers Decoding Medical Records for Effective Trial and File Management Managing the Process of the Hear the Child Report in Family Law Walking that Fine Thin Line: Roadside Drug and Alcohol Testing in BC

of Webinar Repeats. See a full list HERE.

Date: August 7, 2014 Speakers: Ivan C. Elieff, Legal Services Branch-Health and Social Services, Hugh S. McLellan, McLellan Herbert, Michael Turanski, Legislation, Litigation and Appeals Branch

Deadline December 2014: Get Involved in the Evolution of Adult Guardianship Law in BC Date: August 28, 2014 Speakers: Kathleen Cunningham, Public Guardian and Trustee, Jennifer A. Davenport, Public Guardian and Trustee, Deidre J. Herbert, McLellan Herbert

Upcoming In-Person Seminars Leading Innovation in Client Care Date: October 3, 2014 Location: The Law Courts Inn, 4th Floor, 800 Smithe Street, Vancouver Speaker: Dennis Hilton – Facilitator, Trainer, Consultant and Speaker

Testimonials from Dennis’ previous workshop “Managing for Results”: “Excellent interaction and discussion; good facilitator.” “Effective communicator and dynamic presentation. […] Dennis was organized and interesting throughout.”

IN PARTNERSHIP WITH THE VICTORIA BAR ASSOCIATION

IP Law for the Non-IP Lawyer

Date: September 24, 2014 Location: Victoria Marriott Inner Harbour, 728 Humboldt Street, Victoria Speaker: Jennifer A. Marles, Oyen Wiggs Green & Mutala LLP

\\ For a complete list of registration details and requirements, please contact the Professional

Development Department 604-646-7866 or 1-888-687-3404 ext. 329 or email pd@cbabc.org.

24 BARTALK / AUGUST 2014

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info@onpointlaw.com AUGUST 2014 / BARTALK 25

barmoves Who’s Moving Where and When Sasha Ramnarine

Paul McDonnell

has joined Benchmark Law Corporation as an associate at its Vancouver office. Benchmark Law Corporation provides corporate commercial services exclusively to small businesses.

joined Borden Ladner Gervais LLP as a partner in the Vancouver office. His practice focuses on fire related litigation in major property losses, products liability, forestry, construction law, municipal liability and commercial host liability.

Chelsea Hermanson

Ryan Laity

joined Branch MacMaster LLP as an associate practising primarily in the areas of class actions and insurance litigation. Chelsea articled and practised at Bennett Jones LLP in Calgary.

joined Borden Ladner Gervais LLP’s Financial Service group as an associate.

Timothy Outerbridge

Hunter Parsons

has been appointed the new Registrar of the Court by the British Columbia Court of Appeal on June 30, 2014.

joined Borden Ladner Gervais LLP’s Commercial Litigation group as an associate.

REACH OVER 11,000 BC LEGAL PROFESSIONALS Volume 27

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2015 DIRECTORY

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CBABC.ORG/LAWYERSDIRECTORY 26 BARTALK / AUGUST 2014

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 CBA@CBABC.ORG NOW. TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1408

Kristen Balcom joined Borden Ladner Gervais LLP’s Insurance and Tort Liability group as an associate.

newmembers May & June 2014 Regular Members

Jonathan B. Ip

Shannon E. Becket

Christina Kwok

Benjamin Bluman

Todd N. Lucyk

Alexander J. Boland

Courtney MacRae

Victory Square Law Office LLP Vancouver Davis LLP Vancouver

Laura C. Morrison has joined Edwards, Kenny & Bray LLP’s Litigation Department as an associate. Laura will have a general litigation practice.

Farris, Vaughan, Wills & Murphy LLP Vancouver Thomas W.B. Cullen

Hamilton Duncan Armstrong & Stewart Law Corporation Surrey Steven James Gares

Webster Hudson & Coombe LLP Vancouver

Sharon MacMillan has become a partner in Miller Thomson LLP’s Vancouver office.

Sharon MacMillan advises clients with respect to real estate transactions, as well as strata property and commercial lease issues.

Robert Goodrich

Clark Wilson LLP Vancouver Zelius Kleefstra

Fasken Martineau Vancouver

has joined Hammerberg Lawyers LLP as an associate. Nicola practises in the areas of business law, real estate law, trademarks and estate planning.

has joined Hammerberg Lawyers LLP as an associate after beginning his career at a downtown law firm. Curtis is practising in the area of plaintiff personal injury.

Slater Vecchio LLP Vancouver Pihl Law Corporation Kelowna William Nikolakis

Peter Grant & Associates Vancouver Reza Sadeghi-Yekta

Burnaby

Svet Savova

Borden Ladner Gervais LLP Vancouver Nicholas Shon

Lawson Lundell LLP Vancouver Suman Sohi

Surrey

Ola N. Stoklosa

Port Coquitlam

Law Students

Yuji James Matson

Sepideh Alimirzaee Alvin Bajwa Steven R. Barker Hillary M. Bicknell Samantha Bowen Kenneth Deane Craig Jackson C. Doyle Guillermo E. Flores Micah Goldberg Nicole B. Iaci Ratib Islam Byung-Chan Kim Michael Mangal Kelly Marsh Scott A. Matkin Bryan J. Pankoff Kegan J. Pepper-Smith Graeme R. Pugh Silvia Purcarin Derek M. Sanderson Catharine E.M. Schlenker Alexander FD Stirling Luis Felipe Vianna e Silva

Doak Shirreff LLP Kelowna Davis LLP Vancouver

Carfra Lawton LLP Victoria Elizabeth M. Stolier

Delta

Martin Twigg

Farris, Vaughan, Wills & Murphy LLP Vancouver

Articling Students Curtis Ronning

Oyen Wiggs Green & Mutala LLP Vancouver

Elyse C. Knowler

Fareeha Qaiser

Nicola Collins

Faley Law Corporation Richmond

Derek Deacon

Goodmans Vancouver

Baljinder Deepak

Burnaby

Rajdeep Gill

Surrey

Frances Gropper

Aaron Gordon Daykin Nordlinger Vancouver

AUGUST 2014 / BARTALK 27

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