BarTalk August 2000
Volume 12, Number 4

by Shelley Bentley

There are currently 71 active BC Branch provincial Sections. These Sections play a vital role in keeping members up-to-date on changes in the law and 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 sample 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
In this joint meeting with the Forestry and Alternate Dispute Resolution Sections, Glenn Sigurdson, QC and Thomas Nesbitt, both lawyers with mediation backgrounds, gave presentations on “Consultation with First Nations: Building Bridges Across Intensely Held Values”. The discussion centred around the use of mediation and how we, as lawyers, must grow in our understanding of how we should build process for problems as opposed to trying to force-fit problems into process.

Administrative-Victoria
Robert Shorthouse, Chair of the BC Expropriation Compensation Board, discussed relations between an administrative tribunal and the government that creates and sanctions them. Copies of a model memorandum of understanding for regulatory and administrative agencies of the provincial government were distributed. This document, created by the BC Government, is offered as a menu of best practices from which to choose and is intended to clarify the expectations and responsibilities of the relationship between the government and administrative or regulatory agencies. The ultimate goal is to provide enhanced service to the public.

Business
Michelle Pockey from Davis & Company presented a paper on corporate acquisitions and environmental liability with particular emphasis on avoiding parent company liability for a subsidiary company’s contaminated site. Ms. Pockey began with a general discussion of the development of environmental law in Canada and the US and then focused on specific parent liability language found in environmental legislation in BC. She discussed details of the BC Environmental Appeal Board decision in Beaser East, Inc. and Atlantic Industries Ltd. v. The Assistant Regional Waste Manager and Canadian National Railway (Appeal # 98-WAS-01(b)). The presentation concluded with due diligence tips for the corporate commercial lawyer.

Civil Litigation-Vancouver
A solicitor’s duty to disclose in the context of the discovery of electronic information and documents has raised new issues. What must counsel do to ensure that his or her client meets its obligations under the disclosure rule? Rupert Shore of Campney & Murphy noted that counsel must analyze how their clients create, maintain and produce information. Counsel must consider how information is generated, who generates it, where it is being generated, where the information is being stored and whether the information is kept, backed up and/or deleted. Further, counsel must consider whether it is necessary to produce more than the final copy of the document. For example, technicians can go into a document that has been deleted and determine other information about the document such as when it was created, when it was changed, how many times and by whom. Questions about drafts of documents may be relevant in the context of litigation (see Digital Dirty Laundry, page 26).

Criminal-Vancouver
David Butcher, counsel for the law firm in the Lavallee, Rackel and Heintz case (Alberta Court of Appeal, on appeal to S.C.C.), Richard Peck, QC and Jerry Ziskrout led a panel discussion on the legality of section 488.1 of the Criminal Code authorizing search warrants of law offices. They provided practical advice on how a lawyer should deal with a search of his or her office.

Computer
Intellectual property lawyer, Gary Dunn of Szibbo Dunn discussed a variety of intellectual property and business topics related to electronic commerce, contracting, copyright, trademarks, content acquisition and the Internet. Among them he spoke on:

• the Federal Government’s new Privacy and Electronic Documents legislation and whether it is constitutional;

• Italy’s new legislation on “cyber-squatting” (attempting to profit from the Internet by reserving and later reselling or licensing domain names back to the companies which invested time and money in developing the goodwill of an identical or similar trademark);

• the case of a Web delivery company being sued for discrimination;

• New Zealand’s model code for e-commerce and consumer protection;

• the $312,000 damage award by the US Federal Court in California against a Canadian pornographic Web site;

• the single new area code for Europe; and

• resources for info on e-commerce taxation.

Family-Vancouver
Members were alerted to the possible income tax consequences arising from a section 57 declaration in family proceedings. Lawyer Tracey Jackson and Chartered Accountant Daniel Barbour took the position that a section 57 declaration is a “triggering event” which effects the transfer of assets for tax purposes. This could trigger income tax ramifications that may not properly have been considered by counsel or the parties prior to obtaining such a declaration.

In another meeting, Psychologist Dr. Mary Korpach discussed the impact of divorce on children and stressed the importance of parents’ participation in alternative dispute resolution such as mediation or collaborative law when addressing issues regarding the children. Dr. Korpach went on to discuss the role of the psychologist in different phases of litigation from one of therapist and educator and consultant during mediation attempts, to one of coach for parents who are about to undergo a custody and access report, to one of expert witness in answering limited questions or criticizing the work of a colleague or to assist counsel in the cross-examination of another expert.

Dr. Korpach also spoke about the Custody and Access Assessments Standard (1998). It sets out minimum standards for preparing custody and access reports.

Gender Issues
Counsel involved in the important Supreme Court of Canada case of Little Sisters Book and Art Emporium et al. v. Canada (AG) et al. gave an insightful overview of the issues facing Little Sisters in this case. The central issue was whether certain provisions of the Customs Tariff, RSC 1985, c.41 and the Customs Act, RSC 1985, c.1 violated freedom of expression and equality rights under the Charter. Joseph Arvay, counsel for Little Sisters, stated that the case is not about the power to rid the world of obscene material, rather, it is about whether the process is sufficiently protective on constitutional grounds. The argument was that the legislation itself was unconstitutional not merely the acts of the Customs Officers. There is a discrepancy between what the legislation says and how Customs Officers determine what is obscene. The determination of obscenity, although defined to some extent in the Butler case, is somewhat discretionary and could have a very broad reach.

Gay, Lesbian, Bisexual, Transgendered Issues
“Making Babies – Legal and Parenting Issues in Non-traditional Families” was the topic discussed by a panel of guest speakers including lawyers Lori Williams, Meredith Woods, Dennis Dahl, and the Coordinator of the Donor Sperm Program at Genesis Fertility Clinic.

Poverty
Section members received reports from various working committees, including the Bankruptcy Committee, Homelessness Committee, Anti-Panhandling Bylaw Committee, Welfare Issues Committee, Legal Aid Issues Committee and the Residential Tenancy Committee. Bill C-31, the Immigration and Refugee Protection Act, and the National Citizenship and Immigration Law Section’s position on the Bill were also reviewed. It is their position that the Bill fails to preserve the processes that are essential for reliable and just decision-making in cases of selection and removal of immigrants. It strips existing review processes and limits existing access to review tribunals to the point that unfair and unjust determinations are inevitable. This is particularly true for procedural protections presently afforded permanent residents and refugees. This Bill would:

• redefine the status and right of entry of permanent residents and deny residents entry into the Country before their loss of status is determined;

• allow for the deportation of permanent residents without appeal and without consideration of their circumstances as a result of a single criminal sentencing;

• deny access to Federal Court review without leave, in all decisions under the Act;

• raise the barriers for access to the refugee determination process; and

• allow for the deportation of permanent residents and refugee claimants before hearing of judicial review in Federal Court.

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

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