BarTalk August 2001
Volume 13, Number 4

by Shelley Bentley

There are 72 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 Sections.

Family-Kamloops
Guest speaker, Richard Benwell, counsel for Family Maintenance Enforcement Program (FMEP), discussed the new method of enforcement by withholding drivers’ license renewals. The legislation allowing the Program to do this was passed a year ago and allows FMEP to direct ICBC to withhold the issue of a driver’s license renewal to a defaulting payor. Most renewals come up once every five years. Once the driver’s license is held up the defaulting payor must negotiate directly with FMEP. Only once an agreement is reached will FMEP direct ICBC to release the hold on the license. The typical way to lift the suspension of the license renewal has been to obtain a consent order with the defaulting payor in exchange for an agreement by FMEP to lift the hold on the license. If the payor does not pay the agreed-upon amounts, the payor will be required to surrender possession of his or her license to the court at the next court appearance.

Suzanne Hadley, an Accredited Family Law specialist from Farrellys, a firm in Cairns, Australia gave a paper on the “Interstate Relocation of Children: The Australian Approach.” She noted that Canada and Australia share similarities in the large distances between population centres and the increasing mobility of the population. Although the best interests of the children has long been the paramount consideration in relocation cases, until recently the relocating parent was required to demonstrate compelling reasons for the relocation. Recent cases have developed the following principles:

• The court cannot separate the issue of relocation from residence and the child’s best interests where both issues are combined in the case;

• There can be no dissection of the case into an issue of who should have residence and a separate issue of whether relocation should be permitted;

• There is no requirement to demonstrate compelling reasons for relocation; and

• In relocation cases the best interests of the child are to be evaluated by taking into account considerations which include the bona fide interests of the residential parent i.e., freedom of movement and the need to ensure a continuity of the relationship between the non-residential parent and the children.

The practical effect of the current law in Australia is that each case must be decided on its facts. Relocation is by no means guaranteed, but a residential parent seeking to relocate will generally find it easier to do so than in the past.

Freedom of Information and Privacy Law
George Radwanski, the new federal Privacy Commissioner spoke to Section members about Canada’s new legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA). Commissioner Radwanski considers privacy to be the defining issue of the decade. He commented that Canada is at a crossroads and that the decisions made regarding privacy will determine our legacy to society. Not long ago privacy was protected by default because you had to be famous before someone else would compile a dossier on your private life. This has changed with the introduction of the new electronic media.

PIPEDA brings Canada in line with what other countries are doing with respect to privacy. The goal of the legislation is to ensure that an organization cannot collect personal information without the person’s consent and cannot distribute it except for the purpose authorized by that person. It also provides mechanisms for persons to access and correct their own personal information. The legislation will be phased in over three years. It currently applies to federal works and undertakings as well as to the Northwest Territories and the Yukon. It also applies to credit reporting companies but will not apply to the personal health information sector until January 1, 2002. PIPEDA will apply to the whole commercial sector across Canada by 2004 unless a province enacts “substantially similar” legislation. In determining whether provincial laws are substantially similar Commissioner Radwanski said the criteria would be the incorporation of the essence of privacy protection principles; consent, access or correction rights for personal information, a complaints resolution system and effective redress for violation of privacy.

Municipal
Dale Wall from the Ministry of Municipal Affairs spoke about recent legislation introduced in the Legislature, including Bill 10 restricting public actions that may be brought, Bill 20, the Drinking Water Protection Act and amendments to the Human Rights Code, which add pay equity to the list of human rights protected. The Drinking Water Protection Act is a substantial piece of legislation which will require a large amount of regulatory work in order to implement it. All bills are posted on the Ministry’s Web site.

Will and Trusts-Okanagan
Margaret Mason, a member of the BC Law Institute Committee working on recommendations for the modernization of the Trustee Act, outlined the goals and progress of the Committee to date. The Committee was struck to redraft and modernize the language of the Trustee Act, identify provisions which are out of step with modern business practice and which are needed in light of the demands of modern trusteeship. The Committee has been asked to formulate positions on issues requiring attention, make the requisite policy decisions and incorporate these policies into the redrafted Act. So far the Committee has delivered reports on the statutory remuneration of trustees and trustees accounts, trustee investment powers and statutory powers of delegation by trustees.

The Committee has recommended that remuneration be calculated on the basis of current gross market value of all capital assets and current gross income of the trust. The maximum percentages should be repealed and replaced with “fair and reasonable remuneration.” The Act should include a provision allowing professional trustees to charge for professional services. The Committee has also recommended that the legal list of permitted investments be replaced with the prudent investor standard and that investment performance be assessed on a portfolio basis rather than on the basis of individual securities. Delegation of investing to an agent should be permitted with a requirement for proper selection and supervision.

Women Rainmakers-Vancouver
Richard Stock, founding partner of Catalyst Consulting, a firm advising on value-improvement, cost-savings, performance and technology, outlined what he saw as the changing economics of law and the effect of the “brain drain phenomenon” on the practice of law in Canada. He described methods firms can implement if they want to rise to the challenge of retaining talent in a time when the current generation of associates have marked differences in their personal and professional values compared to the previous generation of lawyers. He conceded that the current systemic barriers and the general inertia of many who have the power to change the internal workings in firms would likely impede the progress of many firms.

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

This article originally appeared in the August 2001 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.