BarTalk December 1999
Volume 11, Number 6

by Shelley Bentley

There are currently 68 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 obtain an order form.

Aboriginal-Vancouver
Patrick Kelly, member of the Lakahahmen First Nation (Leq’mel) and a facilitator, addressed the section on the criteria for successful consultations between First Nations, business and government. Brian Smith, QC, Chair of BC Hydro and former Chair of Canadian National Railways added his comments. Both agreed that it is often counter-productive to seek an agreement that covers every possible eventuality. Instead, business should learn about the customs, practices and traditions of First Nations and work to create mutual trust. That knowledge and trust will be far more effective in dealing with unforeseen developments than a lengthy legal contract.

Air
Chair of the Canadian Transportation Agency, Marian Robson, addressed current issues facing the tribunal. She outlined the organization of the Canadian Transportation Agency, described its quasi-judicial nature, its purposes, mission statement and its two branches, the Rail/Marine Branch and the Air/Accessibility Branch.

ADR-Okanagan
Jerry McHale, Director of the Ministry of AG’s Dispute Resolution Office, gave the government’s position on ADR and described the current mediation initiatives in the civil justice system as well as some current ADR initiatives in administrative law.

ADR-Vancouver
Using ADR to gain sustainable competitive advantage in a changing market was another topic addressed. Mr. Radford, a consultant in the area of sustainable competitive advantage, quoted Edward DeBono on the existing structures for conflict resolution: “At best they are inadequate, at worst they are positively dangerous and may actually exacerbate conflicts. They are locked in by the logic of their structures, the logic of their history and the logic of the people running them. They are also locked in the logic of expectation: the need to continue functioning as people expect them to.” He noted that no one can count on past success to sustain him or her for the future. You must know what tomorrow’s client wants. Clients are more demanding and more discerning particularly in the arena of conflict resolution. Technology has allowed for finer segmenting of markets, enabling your competitors to take your best customers. His advice was to examine your own existing structures and institutions and step outside them.

Barry Fraser outlined the reasons why most clients and their counsel find mediation to be a stressful experience and outlined his recipe for a successful mediation; in short, how to get the parties talking to each other in a constructive manner. He gave tips on preparing your client, when to make the first offer, when to ask for legal opinions and when to adjourn rather than giving up.

Banking
Marg Drier, Deputy Registrar of the Personal Property Registry, outlined significant changes which have taken place in the Registry. In July 1998 the PPR and Manufactured Home Registry were combined. On May 1, 1999 the sale of BC Online to MacDonald, Dettweiler and Associates was finalized and to date the change has not had an impact on the Registry. The PPR system has been made Y2K ready and transactions are being implemented to allow remote users to complete changes and renewals on line.

Business*
John Lundell noted that the new Company Act was passed and received Royal Assent on July 15, 1999. It is tentatively scheduled to come into effect in the Spring of 2001. There will be an amending Act in the next year to correct technical deficiencies and deal with consequential amendments to other statutes. Notable changes in the new Act include the provision for the electronic filing of some documents, new forms of incorporation documents, the removal of the requirement that Articles be filed with the Registrar of Companies, the discontinuance of pre-vetting of incorporation documents by Registry staff, the granting of the right to adopt pre-incorporation contracts, expanded provisions regarding dissent rights and conflicts, residency requirements for Directors, and penalties for extra-provincial companies which fail to register in BC when required, to name a few.

Civil Litigation-Vancouver
Solicitor and client financial relations, tips on how to avoid disputes over professional fees, securing fees and recent cases on these topics were covered by Gordon Turriff.

Criminal-Vancouver
The Supreme Court of Canada case of R. v. Stone (1999) and the defences of insane and non-insane automatism were discussed by counsel in that case.

Criminal-Victoria*
The timing of the defence opening to the jury in a criminal case was the subject of a paper delivered by Adrian Brooks.

Environmental-Vancouver*
Waldemar Braul and Richard DeFilippi spoke of their experiences with Allocation Panels under the Waste Management Act. These panels render non-binding opinions to the manager under the Act for determination of responsible person status, minor contributor status and how responsibility for remediation costs should be allocated.

Family-Vancouver*
“Classification and Division of Family Assets: Businesses and Ventures” was the topic of a paper delivered by Eleanor Gregory. In her paper she reviews cases decided in BC since 1995 involving determinations of whether business assets are family assets.

Family-Victoria
Dr. Laura Mills discussed the newly classified “Parent Alienation Syndrome” involving the alienation of one parent in favour of another by children whose parents have separated.

Municipal*
The Bill 88 amendments to the “reformed” Municipal Act and the new requirements dealing with the conduct of meetings were outlined by Elizabeth Brennan, Senior Policy Analyst with the Ministry of Municipal Affairs. The new provisions make it clear that all meetings must be open to the public unless the subject of the meeting is one of a list where the need for confidentiality or privacy outweighs the need for openness. It will apply to councils, regional district boards, their committees, and to the Islands Trust.

Taxation*
“Revenue Canada Audits and Investigations - Powers, Procedures, Abuses and Remedies” was thoroughly canvassed in a paper by Thorsteinssons lawyer, Craig Sturrock.

Wills and Trusts-Vancouver
Representatives of the BC Coalition of People with Disabilities, the Public Trustee’s Office and private law practice led a panel discussion on the new adult guardianship legislation some of which will be in force as early as February, 2000.

Wills and Trusts-Victoria*
Peter Ramsay delivered a paper on the post-Tataryn era. That groundbreaking 1994 case in which the Supreme Court of Canada gave new meaning to the term “testamentary freedom”, has been followed 29 times, distinguished twice, explained nine times, mentioned 54 times and cited in dissenting opinion twice.

Women Rainmakers
Judge Catherine Warren, former Law Society of BC Treasurer Trudi Brown, QC and Madam Justice Lynn Smith addressed issues facing women in the law. Madam Justice Smith concluded her presentation by outlining the habits she believes are shared by all good women lawyers and leaders: rigorous questioning of assumptions, being exemplary both ethically and in work, having a sense of humour, taking no nonsense, working hard and being persistent, understanding all perspectives and being aware of privilege, and being principled and courageous.

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

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