BarTalk June 1999
Volume 11, 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 Marife Sanvictores at the Branch office to receive an order form.

Aboriginal-Vancouver *
Thomas Berger, QC and Geoff Cowper, QC spoke about the current scope of the fiduciary duty owed by governments to First Nations. While there is a very active judicial debate about the scope of fiduciary duty as it intervenes in private relationships Mr. Cowper noted that we do not yet have from the Supreme Court of Canada much sense of the scope of the duty owed by governments to First Nations.

Administrative- Victoria *
Kerry Sinclair from the Ministry of Attorney General discussed some of the key features of the Freedom of Information and Protection of Privacy Act and the practical aspects of using the Act for litigation purposes. Her colleague, Susan Ross from Morley and Ross, delivered a paper on how the Act deals with records created or collected in the course of quasi-judicial decision-making by quasi-judicial and administrative agencies. She draws a distinction between purely administrative duties and quasi-judicial functions and expresses concern over the treatment adopted by the Act in the case of the latter.

Kevin Gillese from Gillese and Co discussed recent developments in administrative law.

Business
Dale Doan, from Cleveland, Doan addressed members on the great flexibility and multiple uses of the Personal Property Security Act. He noted its increasing use by businesses such as repairers to avoid the restrictive rights and remedies available under the Repairers Lien Act, construction companies to avoid or bolster the restrictive rights and remedies under the Builders Lien Act and law firms to secure their fees by grants of security in engagement letters. Among many other points he gave tips on the interpretation and use of the PPSA, the securitization of transactions and due diligence searches and warned of the risks inherent in giving title or priority opinions under the PPSA.

Construction *
Marina Morgan from Shapiro Hankinson Knutson and Bill Denault, President of Denault and Associates Inc., an occupational health and safety advisor, discussed prosecutions under the Workers’ Compensation Act and Industrial Health Regulations. The main issue in these prosecutions is whether the employer or supervisor exercised due diligence and the main difficulty in defending such prosecutions is finding an expert who is willing to testify as to what constitutes standard industry practice. Ms. Morgan made recommendations for avoiding prosecution including having written safety manuals, following industrial regulations, documenting everything and conducting safety audits.

Corporate Counsel
Organizational strategy development and implementation was highlighted by guest speaker Charles Holmes, a senior consultant with Wray Consulting Ltd.

Alternate Dispute Resolution-Okanagan
Dr. Ernest Thiessen from One Accord Technologies gave a presentation on “One Accord”, a computer-based negotiation solution system.

Alternate Dispute Resolution-Vancouver
The necessity for a mediation roster and the setting up of the first central registry administered by The British Columbia Dispute Resolution Society were topics addressed by lawyer/mediator Suzan Beattie. She also discussed the qualifications for acceptance to the roster and introduced members involved in the Small Claims Practicum project which provides opportunities for interested applicants to complete the 10 supervised mediations necessary for acceptance to the roster.

Civil Litigation-Vancouver
Lawyer liability to disappointed beneficiaries, an expanding area of estate litigation, was outlined by Jane Milton from Bull, Housser and Tupper.

Recent developments in class action litigation were covered by Ward Branch of Branch McMaster.

Civil Litigation-Vancouver Island *
The Honourable Justices Bouck and Quijano of the Supreme Court, the Honourable Judges Palmer, Kay and Bracken of the Provincial Court and Master McCallum of the Supreme Court gave section members valuable tips to help counsel improve the quality of their preparation and presentations in chambers applications, civil trials and civil jury trials.

Criminal-Vancouver
Statement Validity analysis is used to determine if the hallmarks of real or credible memory are present in a statement. A panel of defence, Crown counsel, psychologists and police detectives considered the usefulness of this method of statement analysis.

Forensic scientist, Dr. Vanora Kean, and criminal lawyer Russ Chamberlain discussed the scientific and legal pros and cons, respectively, of the use of DNA analysis in criminal cases.

“A View from the Bench” would be an apt title for the presentation delivered by the Honourable Administrative Judge Baird Ellan and the Honourable Judges Arnold and Weitzel.

Criminal-Kamloops *
Associate Chief Judge Stansfield presented on the new criminal procedure rules for BC Provincial Court and the new criminal caseflow management process which are expected to come into effect this Fall.

Criminal-Victoria
The Honourable Judge Melvin spoke about the accused as a witness.

Criminal-Westminster
Guest speaker Gil Puder spoke on “Police Use of Force-Rational Decision-making Process vs. Testosterone Driven Reaction.” Constable Puder is a 17-year member of the Vancouver Police Dept., a use of force instructor at the Justice Institute of BC, Police Academy and Langara College as well as a researcher for Justice Oppal’s commission on policing in BC. He covered the theoretical modeling and practical application of police response by use of force.

Family-Vancouver *
Madam Justice Allan and Mr. Justice Preston gave detailed practice tips on desk order divorces.

The Honourable Mr. Justice Collver, Chair of the Judicial Family Law Committee described the work done by the Committee in the last year; dealing with the issues involved in the new Federal Child Support Guidelines, the redrafting of Practice Directives to align with the Federal Child Support Guidelines, a review of the Early Intervention Hearing process, a review of the results of the New Westminster Family Law Project Report, discussions regarding the concept of a Unified Family Court in BC including meeting with the Deputy Attorney General, the concern regarding desk order divorces and consent orders and the need for consistency amongst judges.

Family-Victoria *
John Bilawich spoke on the case of Roberts v. Martindale, a B.C.C.A. in which the deceased had a group life insurance policy of which her former husband was the beneficiary and which the deceased thought that she had removed as beneficiary of her policy. The B.C.C.A. found that the husband held the funds in trust for the estate under a constructive trust.

Robert Gill from Clay and Company updated section members on recent developments with the new Federal Child Support Guidelines.

District Registrar Joanne Power covered registry issues and outlined the new Family Law Rules.

Family-Westminster
The Honourable Judge Rounthwaite delivered tips for counsel in provincial court.

Family-Kamloops
Doug Thode of BDO Dunwoody provided a brief overview of family law and bankruptcy.

Gender Issues
Biological clock issues facing professional women and personal safety issues for women were discussed in recent meetings.

Health Law
Larry Campbell, Chief Coroner for the Province, spoke on the topic of harm reduction in drug use and decriminalization of drugs.

Law Practice Management
Personal coaching expert Irene Leonard described how she assists people to optimize their performance and increase their satisfaction in life!

Legal Research
Drew Jackson, author of the Internet Handbook for Canadian Lawyers presented on the topic of fitting the Web into a legal research template.

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

This article originally appeared in the June 1999 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.