BarTalk April 2000
Volume 12, Number 2

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.

Aboriginal-Vancouver
The Honourable Dale Lovick, Minister of Aboriginal Affairs, spoke to the section concerning the treaty process in BC and the impact of the Delgamuukw v The Queen decision.

Administrative-Victoria
A panel of lawyers discussed the case of First National Properties v. District of Highlands (1999), 178 DLR (4th) 505 (BCSC) in which a claim of misuse of public office was made. In this case First National had made a subdivision application for land which, after the application was refused, ended up being purchased by the Province for parkland. It was alleged that the District’s ulterior purpose in taking certain actions during the subdivision process was to decrease the value of the land so that the Province could acquire it at a lower price. The B.C.S.C. accepted that there were two ways to make out such a claim; the plaintiff can either show that the office holder maliciously set out to harm it, or that the office holder acted without authority, with harm to the plaintiff being foreseeable. It was noted that, at least on some formulations of the test, there may not be any requirement that the office holder “knowingly” act without authority. The panellists agreed that this is potentially an important expansion of the law related to misfeasance in public office.

U Vic law professor Cheryl Crane gave a thoughtful analysis of the Baker v Canada (Minister of Citizenship and Immigration) (1999), 174 DLR (4th) 193 (SCC). She mentioned that the case covered a wide range of administrative law issues, providing a good synopsis of fair hearing rights, the duty to give reasons, bias and the standard of judicial review of discretionary decision-making.

ADR-Okanagan
Ronald Smith spoke about three important factors in mediation: power, anger and dirty tricks. He suggested that there are three questions to ask about power: What is power? Is it always bad? Does it need to be managed? He then went on to discuss how to prevent the inappropriate use of power.

Business
Joel Nitikman’s presentation was entitled “Third Party Penalties: What Every Business/Corporate Lawyer Should Know”. He discussed the recent proposed amendments to the Income Tax Act that are designed to catch promoters of abusive tax shelters. Joel commented on how the proposed legislation is so widely drafted that corporate lawyers and accountants may be caught under the third party penalty provisions while carrying on ordinary transactions such as Section 85 rollovers and estate freezes. The proposed legislation imposes penalties where a person makes a false statement that could be used by another person and where a person participates in false statements made by another person. Such penalties may include 100 per cent of the legal fees charged or 50 per cent of the clients’ tax avoided or both. He encouraged members of the Section to express their concerns by putting pressure on the Department of Finance to narrow the language in the proposed third party penalty provisions.

Brenda McEachern spoke about charitable gift planning including examples of the benefits for private company shareholders. Grant Monck and Marilyn Kerfoot emphasized the role lawyers and accountants play in assisting donors to plan charitable giving. They spoke about “Leave a Legacy British Columbia”, a community-based public awareness campaign that encourages people to make gifts from their estates to the not-for-profit organization of their choice. Its aim is to change the way ordinary people in BC think about philanthropy. It has two simple messages which lawyers can assist in delivering: make sure you have organized an appropriate estate plan using the services of a qualified professional and consider leaving a gift to the not-for-profit organizations of your choice as part of that estate plan.

Civil Litigation–Vancouver
Jerry McHale, Director of the AG Ministry’s Dispute Resolution Office, and Ronald Tucker, Senior Policy Analyst, discussed the proposed amendments to the Supreme Court Rules to expand the applicability of the Notice to Mediate provisions. Currently the Notice to Mediate procedure which is available in personal injury and residential construction cases, allows one party to require others to participate in a mediation thereby allowing the parties to target whether or not that action is appropriate for mediation. It is proposed that this party-driven approach to mediation be incorporated into the Supreme Court Rules.

Class Action
At the first meeting of this new section JJ Camp, Clif Prowse, Ward Branch, Sharon Matthews and Andrew Borrell discussed practical issues for consideration in bringing a class action. Of the 76 class actions filed in BC since the Class Proceedings Act came into force in 1995, one third have been filed against the federal and provincial governments. The next most popular subject area is product liability. Securities and wrongful dismissals are developing areas for class actions.

Computer Law
Mark Hicken of Soho Virtual Law Office spoke on the topic of how the Internet affects the practice of law. He canvassed what the Internet does best, how lawyers use the Internet, how he thinks the legal profession will use the Internet in the future and what he sees as the threats to legal practice from technology and the Internet.

Corporate Counsel
Clark Ledingham, a litigator in the information and privacy issue area, discussed Bill C-6, the Personal Information Protection and Electronic Documents Act. The express purpose of this legislation is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.

Criminal Justice-Okanagan
Judge Hugh Stansfield described the four steps of the new procedure introduced by the new Criminal Caseflow Management Rules. The first step, the initial appearance is intended to take administrative functions, similar to those of Remand Court, outside of the Courtroom. At this stage, particulars will be provided by the Crown to the accused, the accused will be given an opportunity to obtain legal advice and the JP, with the accused, will facilitate a plan to move the case forward to resolution. The second step, the arraignment hearing, will explore the prospects for resolution and if there are none, will streamline the trial. The third step, the trial confirmation hearing, will provide another opportunity to discuss whether the trial will go forward. Finally, the trial stage, the central feature of the criminal justice system, will likely be different within this new procedure. Rather than overbooking trials by 400 per cent and making counsel wait all day, it is anticipated that delays will be reduced substantially.

Legal Research*
Researching constitutional law was the topic covered by Ron Skolrood and John Kleefeld. Ron’s presentation focussed on research issues and research categories that arise in constitutional law while John emphasized what he calls “Constitutionalism” and mentioned some of the primary sources for research in this area. John observed that constitutional law used to be about federalism and the division of powers. Then the Charter came along and constitutional law became more focussed on individual rights. Now, there seems to be a trend back to looking at federalism issues. This swing is what he refers to as “Constitutionalism.”

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