by Shelley Bentley

The CBABC sponsors 74 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting given areas 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.

Banking
Ron Usher, of the Law Society, spoke about the new Land Title E-filing project that is scheduled to “go live” on April 1, 2004. The process occurs in three stages:

1. Preparation of the electronic document. In this stage, counsel prepares the electronic Land Title Form by computer. Prior to this process counsel should have an executed copy of the document. While it is acceptable for counsel to rely on a copy of the executed document, Mr. Usher recommended that counsel always have an original of the document on file.

2. Digital signing of the electronic document. Once the electronic document has been completed, counsel needs to digitally sign the document. The digital signature will then be reviewed through the government’s computer mainframe that verifies the digital signature with Juricert at the Law Society. All system users are required to register with Juricert and receive a “CA” designation.

3. Electronic document is submitted into the E-filing system. Submission of the document and verification of filing takes approximately two minutes. At the conclusion of the process, counsel receives the electronic document with a digital time stamp indicating the registration number and the date and time of the filing.

The current system is designed so that counsel can make minor modifications to the electronic document prior to the digital signing of the document. Once a document has been digitally signed it cannot be modified or revised by counsel. Under the E-filing system, if an electronic mortgage document is rejected for any reason (e.g., incorrect PID number) no pending registration number will be assigned to the document and it will be completely rejected. Currently, under the current manual system, even if a mortgage is ultimately rejected, it will still receive a pending registration number and allows withdrawal for correction.

Some of the advantages of the new E-filing system are that fees will be deducted immediately from a firm’s B.C. Online Account. Payment of Property Transfer Tax will also be handled electronically. Courier costs will be saved. A State of Title Certificate can be ordered automatically on an electronic form.

As of January, 2004 sections 13 and 14 of the Standard Form of Contract of Purchase and Sale have been modified to clarify the obligations of the parties and the use of the CBA Standard Undertakings. These changes were not necessitated by the introduction of the E-filing system. However, lawyers may wish to change their undertaking letters to allow for the emailing of a post-filing transfer document with execution particulars on it.

Commercial and Real Estate- Vancouver Island
Guy Whitman provided a case comment on the effect of the decision about builder’s liens in Shimco Metal Erectors Ltd. v. District of North Vancouver, 2003 BCCA 193. The Court of Appeal upheld the B.C. Supreme Court’s interpretation of the Builders Lien Act finding that a lien may be created on a holdback separately from a lien on property. The decision creates uncertainty because there is no mechanism in the Act to govern the lien holdback procedure. Mr. Whitman noted that it does not appear that actual notice of the lien is required. Commencing an action or even giving written notice asserting the lien may be sufficient. It is unclear what extinguishes the lien. For a thorough critique of the Shimco decision Mr. Whitman referred members to the B.C. Law Institute discussion paper accessible through www.bcli.org.

Poverty Law
Shelagh Day, Co-Director of the Poverty and Human Rights Project, addressed Section members about her work on the constitutional challenge to the welfare time limits recently imposed by the B.C. Government. The challenge is under section 7 of the Charter, security of the person. She noted the breadth of concern about the time limits. The 24 month time limit coupled with other reductions in welfare has resulted in a large decline in the income of families with young children. The federal Canada Assistance Plan (CAP) set standards requiring that provinces provide adequate welfare for everyone in need. CAP has been repealed. Until its repeal welfare time limits legislation would have been impossible. Now that the current federal transfer payment legislation is in force, the federal government is making lump sum transfer payments to the provinces with no conditions attached.

Senior Lawyers
B.C. Police Complaint Commissioner, Dirk Ryneveld, QC, spoke about his recent four year term as the Senior Trial Attorney for the International Criminal Tribunal for the former Yugoslavia in The Hague, Netherlands.

Mr. Ryneveld’s presentation focused largely on his prosecution of Slobodan Milosevic. This case involved allegations arising from three wars allegedly directed by Milosevic in Croatia, Bosnia and Kosovo, spread over a period of some years. Mr. Ryneveld described the difficult conditions under which he and the Court functioned. The law being applied was a mix of British Common Law, Napoleonic (i.e., European) Law and law used in other jurisdictions. The trials were conducted in four languages so that simultaneous translation was constantly required; 95 per cent of the massive volume of documents involved were in foreign languages (mostly Serbian) and had to be translated. The three judges on the Milosevic panel were English, Jamaican and South Korean. The five lawyers on Mr. Ryneveld’s team were from five other countries. The court imposed a six month time limit on the presentation of the prosecution’s case and restricted the prosecution to 90 witnesses (and subsequently increased this number to 127). Although his term ended, the prosecution of the case has continued. It was extended to February 2004, following which the defence will be presented.

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

This article was published in the April 2004 issue of BarTalk. © 2004 The Canadian Bar Association. All rights reserved.