BarTalk June 2000
Volume 12, Number 3

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
John Campbell reviewed the seven characteristics of a “dog file” and analyzed how mediation addresses them. He commented that mediation is the best way to deal with such problem files. It is relatively inexpensive. It gives everyone the opportunity to say something. It is a way for everyone to save face and it is highly likely that everyone will settle!

Banking
Director of Land Titles, Malcolm McAvity explained the workings of the proposed new electronic filing system, which is an electronic or paperless system for the preparation and delivery of land title documents to the land title office for registration. The system will be the first of its kind in BC to use digital signatures to sign paperless documents.

He anticipates that the system will be in place in about two years. He pointed out that e-commerce is growing exponentially and that electronic service delivery is a strategic business direction for the Government. Current technology now provides levels of functionality and security necessary to support a broad range of business needs, including things such as electronic cheques, secure messaging, secure document delivery and signature verification. Lawyers will face increased client expectations to be technology-enabled. The introduction of the electronic filing system is consistent with these international trends.

Business
UBC Professor Robert Paterson addressed private remedies for foreign investors under NAFTA.

Computer
The jurisdiction of BC courts to hear and determine private law disputes involving the Internet was the topic addressed by Scott Turner. The test involves a determination of whether there is a “real and substantial” connection between BC and the subject matter of the litigation. From a practical perspective, whether the court has jurisdiction may not matter as much as the question of whether it is possible to enforce the BC court order if the other party is “ex juris”.

Family-Prince George
Andrew White, a former family court counsellor and current director of his new company (which offers custody and access report preparation), explained what is involved in preparing a custody and access report.

Robert Buxton, a chartered business valuator, prepared a paper on the process of valuing a business. He commented that the “book value” attributed to a business is almost always a poor assessment of its fair market value. Family lawyers should be careful of this when dividing property that includes a business.

Insolvency
Section 80 of the Income Tax Act and its relationship with insolvency matters was the topic addressed by David Gagnon from Harper Grey Easton.

Immigration*
Alistair Boulton gave an overview of the important new Supreme Court of Canada case of Baker v. Canada (Minister of Citizenship and Immigration) [1999] S.C.J. no. 39. Although the impact and the importance of this case is still being assessed, it has been mentioned or followed in approximately 70 cases up to mid-February, 2000. It dealt with the following issues in the context of a deportation order that would have the effect of separating a mother from her Canadian born children:

• Were the participatory rights accorded consistent with the duty of procedural fairness?

• Did the failure of the Immigration Officer to provide his own reasons violate the principles of procedural fairness?

• Was there a reasonable apprehension of bias in the making of the decision?

In commenting on the significance of the Baker decision Justice Lemieux said “…it is evident the Supreme Court of Canada’s decision in Baker mandates a new perspective and a new emphasis by immigration officers when rendering humanitarian and compassionate decisions under the Immigration Act.”

Michael Chang, Consul, Immigration Section of the US Consulate in Vancouver was invited to speak about upcoming policy/procedural changes. He mentioned that in light of the incidents involving accused terrorists crossing the border last year he fully expected that “Section 110” would be implemented on Sept. 30, 2001. Section 110 will change border procedures significantly. That section requires that every alien departure must be matched with their entry via an automated system. This is the system that is in place in virtually every country in the world except for Canada and the US where the volume of people crossing the border is enormous. This volume makes the implementation of the new procedure virtually unworkable without a huge investment of infrastructure (construction of airport space, new lanes at borders, staffing etc).

In another meeting, Peter Schowler, Chair of the Immigration and Refugee Board addressed members about the challenges facing the Board and his short term and long-term objectives in his new position.

Labour
Bruce Laughton and Patrick Gilligan-Hackett canvassed issues in injunction and contempt applications in a labour law context. They also discussed the practical issues affecting a decision to apply ex parte or not.

Law Practice Management
Kari Boyle, Special Counsel to ICBC, and John Rogers of Douglas, Symes and Brissenden gave an overview of how to prepare a Request For Proposal (RFP) and spoke of the many new marketing uses of this type of proposal. RFPs are made by businesses to firms that they anticipate will be able to meet their legal needs. Formal requests typically set out the requirements of the prospective client and the general circumstances involved. They often specify the time frame for response and the form the proposal should take. Although this is a relatively new means of marketing for law firms, other professionals such as engineers, architects, accountants and management consultants have been involved with RFPs for many years. Economics has driven RFPs into the legal marketplace. Sophisticated clients who are familiar with the bidding and proposal process in other contexts are now realizing that they have the buying power to ask law firms to present them with proposals to meet particular legal needs.

Maritime
Shelley Chapelski delivered a paper on the US plans to revise their Carriage of Goods by Sea Act (COGSA). She mentioned that the matter of COGSA revision is of considerable importance to cargo owners and cargo carriers throughout the world. Claims with respect to cargo that travels to, from or even through the US may be governed by COGSA regardless of where the damage, lawsuit or negotiation actually occurs.

Taxation
Mr. Dudney, a US resident, contracted to provide training in Canada to the employees of a computer systems company. He earned money in Canada. Was he taxable in Canada on that money? The Federal Court of Appeal, in a decision at 2000DTC 6169 (The Queen v. Dudney), decided that the only issue here was whether Mr. Dudney had a “fixed base regularly available to him in Canada.” Joel Nitikman criticized the test used in the TCA’s decision during a recent meeting.

Women Rainmakers
Cheryl Stephens, Executive Director of the Law Courts Center, an umbrella organization for companies providing support services to law firms, and Creative Director for the Legal Marketing Institute, addressed members on marketing yourself as a long-term strategy. She advised that each individual needs a plan to raise his or her own profile and career standing. That plan must include a plan for promoting oneself, one’s skills and abilities to the right people in the most effective ways. Her paper explored what she sees as the five components of a successful marketing model: positioning, packaging, promotion, persuasion and performance.

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

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