BarTalk October 1999
Volume 11, Number 5

by Shelley Bentley

There are currently 67 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 the Branch office to receive an order form.

Air Law
Michael Bethell, SVP and Aviation Manager for BC and the Yukon for Aon Reed Stenhouse Inc., gave a presentation on “Y2K- Current Aviation Insurance Issues and Trends.” New email and website addresses for aircraft searches and registrations were also provided.

Civil Litigation and Health Law (Joint Meeting) *
On May 20, 1999 the Supreme Court of Canada held that on considering section 6(4)(b) of the Limitation Act, as to whether the running of time for commencement of an action should be postponed beyond the two year limitation period, the Court should take the Plaintiff’s individual circumstances and interests into account. In Novak v. Bond, her desire to focus on her recovery from cancer and avoid the stress she associated with litigation met this new test. The 4-3 decision allowed the action to proceed five and a half years after the Plaintiff knew of her physician’s misdiagnosis of cancer. The Judgment includes an unusually strong dissent, describing the decision as effectively abolishing limitation periods and calling for legislative reform. Counsel for the Respondent patient and the appellant physician spoke to Section members about the basis for the decision and its importance for all claims governed by the Act.

Criminal Justice-Victoria
Judith Hayes and Dr. Robert Miller from the Forensic Services Commission noted the widespread dissatisfaction with the laws concerning mentally disordered offenders. They have often been left languishing in jail. This situation changed dramatically with the Swayne decision and the consequent Criminal Code amendments which also resulted in an 83 per cent increase in referrals to the Forensic Services Commission for review board hearings. The Commission follows a process whereby it tries its best to provide connections for disordered offenders to the various social services in order to place them in the community. Ms. Hayes and Dr. Miller emphasized the importance of Crown, defence and the Commission co-ordinating their efforts to maximize the assistance to the disordered offender.

Environmental Law-Vancouver
Section 20.51 of the Waste Management Act authorizes a manager to appoint an Allocation Panel to provide an opinion on whether a person is a “responsible person” and what contribution that person has made to the contamination as well as determining the share of the remediation costs to be borne by that person. Wally Braul, a lawyer with considerable experience in this area who was involved in drafting the Waste Management Amendment Act and who sat as chair of the first Allocation Panel has recently been asked to draft a new set of protocols for the Allocation Panels. He attended a subsection meeting to outline his new draft protocols.

Family Law-Prince George
Among the pot pourri of topics discussed was the recent decision in Mosseini v. Oreck Chernoff et al, (Jan. 22, 1999, Van. Reg. # A982880, Catliff, J.) In this case it was found that a solicitor in a law suit can exercise a lien against any property that is recovered or preserved as a result of the proceeding, and is not limited to property recovered or preserved for his or her own client. A solicitor’s lien can be registered against property obtained by the opposing counsel for the benefit of the opposing party. It is speculated that the decision may result in an amendment to section 79 of the Legal Professions Act.

Family Law-Kamloops
Lawyer Gail Forsythe addressed section members about the under-utilized services of the Dispute Resolution Office in child apprehension matters. She emphasized that although the question of apprehension is not up for mediation, the service can deal with terms of access, voluntary care plans, involvement of foster parents and where a child should be placed.

Family Law-Westminster
Karl Warner, QC, the first Vice-President of the Law Society of BC spoke about the future of the legal profession and the challenges currently facing the Bar. Mr. Warner feels it is important for the Law Society to recognize that lawyers must have the freedom to adapt to changes in the demand for their services as the practice of law evolves. He made the following observations on this evolution: Electronic access to court decisions may render law libraries obsolete. Title insurance may erode conveyancing practice. Notaries are competing effectively for conveyance and other real estate work. The need for a good litigator is not abating but focus has shifted to alternate dispute resolution and forums which offer confidentiality and speed. Technology can reduce the need for legal services. For example, whereas in the past a standard form contract might have been prepared by a lawyer for each new transaction, the client may now engage the services of a lawyer to prepare one master agreement which the client or its in-house counsel will modify electronically as the need arises. The Law Society is looking carefully at multi-disciplinary partnerships.

Forestry Law
Patrick Moore, Chair of the Sustainable Forestry Committee of the Forest Alliance discussed the issue of certification as it affects the BC forest industry. Certification, which involves the independent verification of compliance with sustainable forest management practices, is an evolving practice in BC involving competing forces some of which are highly politicized. Mr. Moore outlined some of the problems with competing values and ideologies and commented on the progress which has been made in resolving many of the complex issues involved.

Gender Issues
Panel speakers Gail Dickson and Bob Walker spoke on “ Providing Greater Opportunities for Females in Sport-Ensuring Gender Equity in Professional, Community and School Sports Programs.” Ms. Dickson and Mr. Walker were counsel in the recent human rights case brought against the City of Coquitlam regarding gender equity in municipal sports programs. This case went on to mediation and resulted in a new Municipal Gender Equity Program launched by the City of Coquitlam.

Health Law
Recent health law topics covered were:

• resolution of the Nancy Morrison case by the College of Physicians and Surgeons of Nova Scotia;

• current status of Hepatitis C negotiations and hearing dates; and

• Federal legislative initiatives including regulation of natural health products and reproductive technologies, and the proposed Health Protection Act.

Immigrant investor funds were discussed in a recent meeting. Robert Rocheleau, a partner with the Immigrant Investors Programme with MCAP, a leading financial corporation, discussed the reasons why the Quebec Immigrant Investor fund attracts 90 per cent of all immigrant investors in Canada.

Pension and Benefits Law *
Shawn Hatch spoke about the tendency of courts to decline jurisdiction in favour of labour arbitrators in cases where pension or welfare benefit disputes arise under collectively bargained pension plans and health and welfare plans.

Property and Commercial Law-Okanagan *
Anne Postelwaite and Karen Christiansen of Snowsell Jennens and Carter and Theresa Arsenault of Pushor Mitchell gave a detailed review of when and how to perform an estate freeze.

Taxation Law *
Douglas Powrie from Thorsteinssons delivered a paper entitled “Taxpayer Migration; the December 1998 Proposals.”

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

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