BarTalk June 2004
Volume 16, Number 3

By Shelley Bentley

The CBABC sponsors 74 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting given areas of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Alternate Dispute Resolution-Vancouver
Sandra Polinsky and Peter Grove gave an informative overview of the history of collaborative law and then discussed issues surrounding its application in non-family law settings.

The history of collaborative law begins with Stu Webb, an attorney in Minnesota who became disillusioned with his family litigation practice. Mr. Webb found mediation too neutral and began taking cases on a settlement-only basis. When one of these cases went to court and yielded unhappy results he decided that withdrawal of counsel after a failed collaboration was a necessary feature of the participation agreement. He gradually refined the process and soon collaborative law was born.

Collaborative law is a dispute resolution method intended to resolve disputes without litigation or the threat of litigation. There are no outside neutrals to assist except those third party experts retained by lawyers. Promoting dialogue and settlement is the role of the lawyers. They act as negotiators, instead of as adversaries. Often there are four-way meetings involving two clients and their respective lawyers. The process puts pressure on the lawyers to find a settlement. Participation agreements set out the ground rules. Fundamentally the process involves full disclosure and transparency and relies on integrity and trust. Lawyers must say and mean that there has been full disclosure and withdraw if it is not made. There are elaborate mechanisms for withdrawal.

There are approximately 20 groups in Canada offering collaborative law services. Roughly 45 lawyers practise collaborative family law in Vancouver, six of whom do so on a full-time basis. Collaborative family law cases are commonly settled for between $5,000 and $10,000 in legal fees, significantly less than in the traditional litigation setting. Some argue that costs are cut by approximately 80 per cent. Expert fees are cut in half because one neutral expert is used rather than two adversarial experts.

There are a number of potential impediments to the application of collaborative law in non-family settings. First, there are financial impediments because there may be narrower ranges of results in family law settings than in commercial settings. Second, disclosure may be a problem in the commercial context where businesses may have confidentiality and competition concerns. Emotional and personal issues are recognized and resolved in family law settings. Such issues are not in the language or vocabulary of commercial disputes. Finally, there is the issue of client retention and the reluctance of firms to withdraw and refer clients in the event that settlement cannot be reached.

Criminal Justice-Victoria
Robert Gill, Associate General Counsel of Crime Stoppers International Inc., spoke about the purpose, operation and effectiveness of Crime Stoppers in a recent meeting. Crime Stoppers is a private, non-profit society whose mission is to encourage the public to help police by providing confidential, anonymous information regarding serious crime. The concept originated in Albuquerque, New Mexico in 1976 and has expanded to a worldwide movement.

In any community, citizens have information that would be of benefit to police. A combination of apathy and fear of reprisal discourages many from coming forward. Crime Stoppers seeks to overcome these impediments by offering modest cash rewards paid promptly upon arrest, not conviction, and by invoking police informer privilege. This privilege, in Canada, is most clearly set out in four decisions of the Supreme Court of Canada:

• R. v. Garofoli, [1990] 2 SCR 1421- A search warrant or wiretap authorization must be supported by evidence at trial that is not subject to privilege.

• R. v. Leipert, [1997] 1 SCR 182- Information provided to Crime Stoppers by anonymous informants must not be disclosed to the defence, in order to protect the informant’s identity. The only exception is where disclosure is required to allow the accused person to demonstrate his or her innocence.

• R. v. Carosella, [1997] 1 SCR 80- Crime Stoppers and other organizations must retain their records for possible examination by a trial judge and failure to do so can lead to a stay of proceedings.

• R. v. McClure, [2001] 1 SCR 445- Sets out a detailed procedure for the inquiry into whether the information is relevant to the issue of innocence and thus not subject to informer privilege.

Crime Stoppers has systems in place to preserve anonymity. Call-takers advise tipsters on their rights. Names are not taken. There are no recordings or call display. There is no face-to-face contact with the call-taker. There are also procedures in place to handle payment of rewards on an anonymous basis.

Wills and Trusts-Vancouver
Gary Wilson, counsel in Re: Bloom, 2004 BCSC 70 commented on this case concerning the application of probate fees and the situs test in the context of securities held by an estate.

He began by noting that the Probate Fee Act sets probate fees on the basis of the “value of the estate…situated in British Columbia….” This has commonly been understood by practitioners to mean that the common law situs rules apply to determine what of the deceased’s estate is within British Columbia. However, B.C. probate registries have deviated from these rules in applying the test, leading to confusion and frustration. Mr. Justice Ehrke’s decision in this case has been lauded for its confirmation that common law principles are to be applied as well as for its clear analysis of the issues involved and the test to be applied.

In this case, securities were being held at the date of death by the Bank of Nova Scotia Trust Company (“Scotiatrust”) in Vancouver as Committee for Bessie Bloom. The securities had been purchased and were held through the book entry system maintained by the Canadian Depository for Securities. Bessie Bloom’s ownership of the securities was recorded on the books of the Securities Department of Scotiatrust in Toronto. In deciding that these securities were situated “without B.C.,” Mr. Justice Ehrcke found that in a multi-tiered holding system, the account would be “situated” at the financial investment intermediary on whose books the interest of the debtor appears. This is the place where the record that determines title is to be found. It is also the place where the personal representative must go to effect the transmission. In this case, the securities were “situated” in the Securities Department of Scotiatrust in Toronto.

This decision is under appeal. If required by probate registry staff to pay probate fees on securities that could now be characterized as “without B.C.”, Mr. Wilson recommended paying the fees “under protest.”

Shelley Bentley is in private practice at G Davies & Company.

This article originally appeared in the June 2004 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.