BarTalk October 2001
Volume 13, Number 5

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.

ADR-Vancouver
Jennifer Schulz, Assistant Professor of Law at the University of Windsor, discussed the potential liability of facilitative mediators in the areas of the unauthorized practice of law, breach of statute, breach of contract and negligence. She noted that the good news is that claims against mediators are almost non-existent notwithstanding only limited statutory immunity in certain jurisdictions. Mediation appears to thrive without special immunities. The common law leaves mediators exposed to civil liability and such exposure may be desirable from a policy perspective.

A significant area of exposure is the unauthorized practise of law particularly where unrepresented disputants are involved. Drafting an agreement may constitute the practise of law. If the mediator, in the course of facilitating, captures the parties’ own words of agreement in written form, the mediator is not practising law. The problem arises when mediators choose language and draft legally enforceable agreements themselves. Lawyer-mediators may be not only drafting agreements but also reviewing them with an eye towards their legal sufficiency and can be considered to be practising law. Mediators should merely draft non-binding memoranda of understanding and allow counsel to use them as the basis for final, binding, mediation agreements. In addition to drafting, advising may cause problems for mediators. Mediators should ensure that they do not dispense legal advice. If a lawyer-mediator is found to be practicing law instead of mediating, all the standards of practice, codes of ethics, duties to clients, and legal and fiduciary duties of lawyers can potentially be imputed to the mediator.

Ms. Schulz advised that there are no reported cases of breach of contract despite the fact that such a claim may have the best chance of success. Ms. Schulz uses the following exculpatory language in her own mediation contracts: “The mediator will assist the parties to negotiate a settlement. The mediator will not provide legal advice, nor will she make decisions. The parties agree that the mediator has no liability for any act or omission in connection with the mediation. The parties agree to indemnify and hold the mediator harmless from any claim for damages that may arise from the mediation.”

Family-Westminster
Peter Keighley, QC gave his top 10 list of how to get complaints.

1. Act for anybody and everybody, ignoring conflicts of any sort and acting for the person who has the most money.

2. Promise the impossible in order to get the client.

3. Once you get the client, don’t answer calls or correspondence.

4. From the outset, adopt a “take no prisoners” attitude towards the file, including inflammatory letters to the police.

5. Undertakings are for breaching, and when called to account by the Law Society, take the position that promissory guarantees are not undertakings.

6. Pay practice debts only when cash flow permits.

7. When the going gets tough, stop working on the file.

8. When you get caught doing nothing, lie.

9. Withdraw at the last minute and reveal client confidences.

10. Fight with the client about your fees.

Mr. Keighley commented that 25 per cent of the complaints received by the Law Society are in the family law area of practice.

Labour
Labour lawyers Gavin Hume, QC and Michael Coady spoke about drug and alcohol policies in the workplace. Gavin Hume explained that drug and alcohol policies generally include a prohibition against the use of drugs and alcohol in the workplace, especially where impairment results and that these policies are subject to the well known criteria set out in 1965 in the KVP Co. Ltd. (16 L.A.C. 73) case. It is the policies surrounding drug and alcohol testing that are most frequently the subject of challenge. Michael Coady identified five types of testing: pre-employment testing, rehab or return-to-work testing, post incident testing, random testing and reasonable cause testing. Mr. Hume noted that a policy calling for pre-employment testing is not subject to arbitral review. One exception might be situations where employees are referred to work through a hiring hall. However, pre-employment testing is subject to review by human rights tribunals. That was the issue in Canadian Civil Liberties Association v. Toronto Dominion Bank, [1994] C.H.R.D. No 12/94. In that case the Canadian Human Rights Tribunal concluded that there was no rational connection between the kind of testing employed and the work of a bank clerk. Mr. Hume then discussed the test developed in B.C. (PSERC) v. B.C.G.E.U. (“Meiorin”), [1999] 3 S.C.R. 3:

1. Did the employer adopt the standard for a valid purpose?

2. Is the standard rationally connected to the job in question?

3. Does it accomplish a work-related purpose?

The employer must ask himself/herself whether a test is necessary and what will be done with the results. The principal reason to test is safety. If there are no pressing safety issues, then a test might serve only to disclose the existence of an addiction and give rise to the duty to accommodate.

Mr. Hume also suggested that privacy has prevailed in the arbitral setting. In Trimac Transportation (1999), 88 L.A.C. (4th) 237, a bulk transportation company adopted a safety policy that had a random drug-testing component. The Teamsters and the IUOE accepted the policy but the TCU challenged the policy. The policy was found to be unenforceable because the Company failed to show that it was rationally and necessarily connected to its legitimate interests. The Arbitrator adopted a balancing of interests approach. The issue came down to employee privacy versus the right to manage. Privacy prevailed despite the safety issues raised by the Company. The Arbitrator noted that the Company had no actual problem. There were very few reports of drinking and driving, accidents, etc. The collective agreement was not specific about testing. A company must have clear problems or proper collective agreement language. The random testing policy is still in force vis-à-vis the Teamsters and the IUOE.

Women Rainmakers-Vancouver
Susan Paish, QC, managing partner of Fasken Martineau DuMoulin and Deborah Armour, Vice-President and General Counsel of the Canadian Venture Exchange spoke on the topic of “Creating Success and Building your Career-Savvy Work Relationship Strategies.”

They recommended the following guidelines that have helped them:

1. Know yourself. The speakers found it surprising how often women’s careers are structured by other people’s expectations. They observed that this usually leads to frustration and failure. They recommended setting boundaries and priorities and sticking to them. Don’t be afraid to say no to golf. You’ll likely find that clients respond to your activity of choice, for example running, cycling, going to the gym.

2. Learn from your colleagues. They recommended opening up communication with colleagues by ensuring that you ask about things they have experience with and pay attention to their interests. One thing women can learn from their male colleagues is to be a little more self-congratulatory. Putting the right information out about yourself can boost your career.

3. Give assistance and get assistance. You should be mentored or mentoring as a matter of course.

4. Be patient.

5. Examine your existing client base and foster those relationships carefully. Know your clients. Learn about their businesses, who’s who within the organization, what matters to them, what makes their life easier. Nothing pleases clients more than when you anticipate a need and fill it before they get around to asking you for it.

6. Know what’s going on in your own firm.

7. Be a team player. This is critical to business development.

8. Be flexible.

Shelley Bentley is in-house counsel with the Loewen Group Inc in Burnaby, British Columbia.

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