by Shelley Bentley

The CBABC sponsors 72 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting a given area of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Business Law
Joel Nitikman spelled out his top 10 tax tips for solicitors, and then noted that CCRA recently announced that it would no longer issue comfort letters for purchasers of businesses who are performing due diligence searches. As a result, solicitors should consider changing their due diligence practice and the kind of representations and warranties to be placed in purchase agreements.

Labour Law
Rob Wotherspoon and Sheila Tucker analyzed a recent decision of the B.C. Labour Relations Board (the “Board”) in Fraser Lake Sawmills (BCLRB No B 390/2002, reconsideration of BCLRB No B213/02) concerning the interrelationship between addiction, culpability for employee misconduct and employer duty to accommodate.

Mr. Wotherspoon commented that it is recognized that addiction constitutes a disease and is a protected ground of discrimination as a mental and/or physical disability under the B.C. Human Rights Code. However, the cases have been divided as to how to deal with workplace misconduct where an addiction is involved. Some cases have adopted the “significant impairment test.” If, based on the evidence, the employee’s addiction resulted in significant impairment of his/her ability to choose whether to engage in the misconduct, then the misconduct should be treated as non-culpable. If not, then the conduct should be treated as culpable.

In the Fraser Lake Sawmills case the Board set out new and specific guidelines that must be followed in cases where a causal link between the addiction and certain aspects of the workplace misconduct is found. The arbitrator must deal with the culpable and non-culpable elements of the behaviour separately by fashioning a remedy to address both the culpable and non-culpable elements. The Board concluded that the nature of such hybrid cases will mean that the response by an arbitrator may contain elements of corrective action traditionally associated with the culpable approach and also rehabilitative or therapeutic elements. Regardless of the approach used, the arbitrator will have to answer the basic question of whether the employment relationship remains viable.

Mr. Wotherspoon commented that this new approach allows an arbitrator to develop a practical response to addiction-related misconduct by combining therapeutic and disciplinary responses which can address both the employer’s concerns and can properly recognize the employee’s addiction as a disability protected under the human rights legislation.

Real Property-Victoria
Kenneth Jacques of the Land Title Office and Ron Usher of the Law Society of B.C. spoke to Section members about electronic filing of documents at the Land Title Office, expected to be implemented in 2004. In 1998, an electronic filing committee was formed with representatives from the Law Society of B.C., the CBABC, the Society of Notaries Public, CLE and the Land Title Branch. Its purpose was to assist in the development of the Electronic Filing System (EFS) by providing input on legislation and regulatory policy and to ensure that the design of the system met user and legislative requirements. In 1999, legislation was passed to provide the legislative framework for an EFS. In 2000 and 2001 the Land Title Branch developed its EFS functional and technical architecture. In 2002, the Ministry of Sustainable Resource Management entered into a contract with the current operator of BC Online to develop the system. The system contemplated is limited to the electronic submission of documents and does not encompass registration by an external user.

Mr. Jacques explained the concept of EFS by using an illustration of the way a transfer of land would occur.

EFS has two parts: a forms preparation package and a communications package. Under EFS, the purchaser’s lawyer searches the title and prepares a Form A Transfer and a Property Transfer Tax form using the system. The purchaser’s lawyer then transmits the electronic Form A to the vendor’s lawyer. The vendor’s lawyer prints a copy and has the vendor execute it. This true copy is useful to evidence the vendor’s intention to be bound, has the effect of delivery, and is an instruction to his or her lawyer to authorize the submission for registration.

The vendor’s lawyer then affixes his or her electronic signature to the Form A and electronically forwards this to the purchaser’s lawyer. The appropriate undertakings can be imposed using secure e-mail obtained through the Law Society.

The purchaser’s lawyer can submit the electronic Form A transfer and Property Transfer Tax return on a date prior to the closing date and it will be held in a queue with a hold until a date specified by the submitting lawyer. Only when the hold is released is the Form A formally submitted for registration and received by the Land Title Office. When the Form A is received, the electronic signature is verified, the purchaser’s lawyer’s BC Online account is debited for registration fees, and property transfer tax is paid by an electronic funds transfer from either a general or a trust account. The application is then electronically marked up. After mark-up an e-mail is automatically sent to the purchaser’s lawyer that advises that the application is marked up and gives the pending number. At that point, from the Land Title Office perspective, everything remains as it is today. The Form A is converted to image, examined by an examiner and registered.

With a Law Society rule change it will be possible to transfer funds electronically between lawyers’ trust accounts.

Shelley Bentley is in private practice at G Davies & Company.

This article was published in the April 2003 issue of BarTalk. © 2003 The Canadian Bar Association. All rights reserved.