BarTalk February 2000
Volume 12, Number 1

by Shelley Bentley

There are currently 69 active BC Branch provincial Sections. These Sections play a vital role in keeping members not only up-to-date on changes in the law but also aware of legal and political issues affecting a given area of practice. They are the main resource utilized by the BC Branch in legislative review, law reform initiatives and in responding to matters affecting the profession.

What follows is a sampling of the recent activities of many of these sections. Asterisks indicate papers which are available through the Section Papers Series at a cost of $7.49 (including GST). Please contact the Branch office to receive an order form.

Alternate Dispute Resolution – Vancouver
Nancy Cameron and Phyllis Kenney explained the features of a new approach to practising family law called “collaborative law.” Collaborative law is a way of practising law whereby lawyers for both parties to a dispute agree to assist in resolving conflict using cooperative strategies rather than adversarial techniques and litigation. The commitment to working collaboratively is reflected in an agreement between the lawyers and their respective clients that, should settlement efforts break down, the lawyers will withdraw and not participate in court proceedings.

Human Rights
The Supreme Court of Canada decision in Province of BC v BCGEU (also known as the Firefighters case) was discussed by co-counsel Gwen Brodsky and Ken Curry and Patricia Janzen. This case establishes a new test for a “bona fide occupational requirement”.

Immigration
Robert Schultz, manager of the Business Immigration Branch, Province of BC, outlined the current activities of the Business Immigration Branch including the entrepreneur program for business immigrants.

Representatives of the Medical Services Plan of BC spoke on entitlement issues relating to immigrants.

Insurance
Nigel Kent from Clark Wilson spoke on the issue of third party reviewers or auditors of legal accounts. He identified some of the practical and ethical difficulties associated with insurers retaining third party auditors to review legal accounts of insurance counsel, particularly with reference to compliance with the billing guidelines which are becoming more common in the insurance industry.

International
Gail Davidson, a lawyer who represented Amnesty International at the trial of Anwar Ibrahim, the former Deputy Prime Minister and Finance Minister of Malaysia, gave an interesting account of her observations at this trial. Mr. Ibrahim was convicted of committing corrupt acts to obtain personal benefit in his official capacity and was later put on trial for sodomy. In Ms. Davidson’s opinion, evidence points to Mr. Ibrahim being a prisoner of conscience, being jailed as a result of his political opinion rather than for any criminal activity.

Municipal*
Martha Anslow from the Ministry of Municipal Affairs gave an overview of the rationale and process for developing the new business licensing and regulation provisions in the Municipal Act.

Labour
The new Workers’ Compensation Amendment Act which came into force on October 1, 1999 was outlined. Among other things the new Act defines the responsibilities of employers, workers and the WCB and sets new standards for joint health and safety committees and worker representatives. It also establishes the defence of due diligence and protects workers who enforce their rights under the Act from discrimination.

Pension and Benefits*
Two investment professionals led a discussion of the investment issues facing pension plans. There was also a discussion of the BC Supreme Court decision in Seaboard Life v Bank of Montreal. This case involved a $2 million loss suffered by Seaboard Life from investments held by the Bank of Montreal as custodian and the Canadian Depository for Securities Limited (“CDS”) as sub-custodian. The Seaboard case is the first serious investigation of the legal relationship between the institutions that are the beneficial owners of securities, their custodians and CDS. This decision illustrates how easily the channels of communication regarding pertinent investment information can become strained as a result of the delegation between custodians and sub-custodians and nominees.

Poverty
The legality of collection letters from out-of-province lawyers to BC residents was discussed in light of the BC Law Society’s position that this is practising law in BC. Members in attendance identified the following areas of concern for the subsection:

• possible challenges to the legal validity of municipal anti-panhandling bylaws;

• identifying housing as a right;

• amendments to the Residential Tenancy Act eliminating the Arbitration Review Panel and the corresponding increase in judicial review applications of Arbitrator’s decisions;

• eligibility for legal aid and the impact on clients with poverty issues; and

• amendments to the Bankruptcy and Insolvency Act providing that Canada Student Loans are not dischargeable for 10 years after filing an assignment in bankruptcy.

Real Property-Vancouver*
Counsel in Mayfair Resources Corp v Greater Vancouver Water District (“Mayfair”) spoke about this case involving a higher than expected compensation award for an expropriated right of way. Oleg Verbenkov, a planner and a land development consultant who was involved in the appraisal of the land in Mayfair, spoke about how he was able to approach the appraisal of the expropriated land from a different perspective resulting in a much greater value based on the highest and best use of the land.

Director of Land Titles, Malcolm McAvity, and Chair of the Electronic Filing Legislation Committee, Bruce Woolley, gave a joint presentation on electronic filings. Malcolm McAvity focussed on the objectives of the project, why it is being done, and how it will change things as it is introduced over the next 12-18 months. Bruce Woolley concentrated on the legal elements and procedures involved with electronic filings and registration.

Ed Wilson reviewed the new standard form Contract of Purchase and Sale adopted by the BC Real Estate Association and the CBA and spoke about the Standard Undertakings Letter developed by the CBA Committee. He commented that it is important to note that the CBA undertakings are not mandatory. They are there to fall back on if needed.

Issues surrounding filing plans at the Land Title Office were outlined by Christine Elliot of Elliot McKee.

Taxation*
“The Attack on Offshore Trusts” was the topic of a paper delivered by John Gregory of Thorsteinssons.

Will and Trusts-Vancouver*
“The Family Trust: Traps, Snares and Opportunities” was the topic of a paper delivered by Mark Chartrand. Also noted during this meeting were the new changes to GAIN for persons with disabilities. An adult can have up to $100,000 of assets in his or her own name and still receive GAIN. New issues surrounding probate fees and the situs of assets were raised.

Will and Trusts-Victoria
The new adult guardianship legislation, some of which is slated to come into force in February 2000 and plans for dissemination of information about it were discussed.

Guest speaker, Gordon MacRae, spoke on planning for the aging client and covered such topics as the test for capacity and estate planning mechanisms surrounding incapacity.

Women Rainmakers
Sandra Jakab-Hancock spoke about the concept of diversity management and how it is effective in that it looks inward to improve a firm’s human resources experiences and also looks outward to the firm’s client base and business relationships to improve the bottom line. Diversity Management promotes an understanding of the diversity of people within a given organization and allows all people within an organization to be included and work as a team.

Young Offenders-Victoria
Dr. Lori Vogt, Chief Psychiatric Consultant with the Victoria Youth Containment Centre, discussed the resources available, the treatment and the issues surrounding the provision of psychiatric care to young offenders in custody.

Shelley Bentley is in-house counsel at the Loewen Group Inc.

This article originally appeared in the February 2000 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.