by Shelley Bentley

The CBABC sponsors 73 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.

Banking Law
Charles McKee from Lawson Lundell and Marian De Souza from First Canadian Title discussed title insurance. Mr. McKee began by stating that the term “title insurance” is a misnomer. He felt that it should be called “transaction insurance” because most claims arise from non-title matters. He noted that the most common question among lawyers is “Do we need title insurance in a Torrens system?” He responded by noting that the Torrens system is in decline because of recent court cases applying equitable remedies in real estate transactions. Such remedies lead to the conclusion that one cannot rely on the property register so that historical searches may become necessary. This has happened in the U.S.

Ms. De Souza said title insurance covers more than title defects. It covers survey defects, outstanding work orders, and building permits. Depending on the value of the transaction it also removes many of the obligations on solicitors to perform due diligence. Twenty per cent of all title insurance claims involve fraud and forgery. Claims involving the invalidity of the mortgage, lack of capacity, usury, and survey defects are also common. It costs $200 for insurance covering title and mortgage on a residential property valued up to $750,000.

Elder Law
Hugh McLellan commented on the federal Private Member’s Bill the “Older Adult Justice Act.” This legislation proposed changes to the Criminal Code as well as the creation of a department and a separate ombudsperson to deal with abuse of seniors. The Bill died when the election was called. However, the Community Care and Assisted Living Act was proclaimed in force on May 14, 2004. In addition, the office of the Assisted Living Registrar was opened in Vancouver. Susan Adams is the Registrar.

Family Law-Vancouver
The utility of trusts in family asset planning was the topic of a recent family law meeting. Ross Tunnicliffe from Clark, Wilson reviewed significant legal developments and drafting strategies for domestic trusts to minimize the unwelcome effects of the Family Relations Act. Parents often wish to establish a trust to benefit their adult child and to maximize the chances of avoiding the harmful effects of the child’s marriage breakdown. In such a situation they should consider drafting the trust in such a way that beneficial entitlement is discretionary and there is no contemplated vested entitlement for the child. The child’s spouse should not be mentioned in the trust and a power to add and remove beneficiaries should be included. Economic access by the child should be limited to income only and the duty to exercise an even hand between the person with the life interest and the ultimate beneficiary should be excluded. It is also advisable not to allow the child to contribute to the trust. A corporate holding company could be used to provide two levels of contingency. The child should either not be a trustee or be one of three trustees so that he or she does not have a casting vote. There should be no power of appointment in favour of the child. For flexibility in administration, a power to distribute to other trusts and a power to amend the trust should be included. It is also a good idea to include a confidentiality clause in the trust and to utilize a letter of wishes.

In the same meeting Kay Gray, CGA and senior manager with Grant Thornton LLP, discussed tips and traps in the taxation of trusts and trust beneficiaries. Specifically she outlined the income-splitting opportunities in the use of trusts, the tax treatment of trust property, and the attribution rules.

Freedom of Information and Privacy Law and Computer Law Section (Joint Meeting)
Peter Cullen, Chief Privacy Strategist with Microsoft gave a presentation entitled “Privacy, Customer Trust, and Dilemmas-A New Reality.”

Mr. Cullen commented that information is the new currency. Organizations wishing to leverage information need to develop customer trust. Developing trust is a significant issue for organizations and is much more of a focus for consumers than privacy or security. In Mr. Cullen’s view, to date the U.S. Patriot Act and its effect on information provided by Canadian subsidiaries has not been a significant issue. Of greater concern is how to manage customers’ expectations of privacy when there is a demand for such things as ISP logs.

Microsoft has 400 people involved with privacy. Their focus is not so much on the structure of the system’s safeguarding privacy but on determining the strategy to protect privacy. Microsoft is very focused on the U.S. and this focus does not work well with the regulatory requirements in other parts of the world where Microsoft is doing business. To add to the difficulty of managing the issues in this area is the fact that in the U.S. 5,800 pieces of privacy legislation were introduced last year, 1,800 of which have been passed. Canadian provincial and federal legislation is very well co-ordinated, by comparison.

Elder Law and Health Law (Separate Meetings)
Former UBC professor Stephan Salzberg prepared a report on health care decisions and end-of-life issues arising out of the Health Care (Consent) and Care Facility (Admission) Act. This report, which also covers the Representation Agreement Act, the Patients Property Act, the Mental Health Act, the Power of Attorney Act, the Public Guardian and Trustee Act and the Adult Guardianship Act, was prepared for the B.C. Law Institute (BCLI) at the request of the Public Guardian and Trustee of B.C. and can be found at www.bcli.org as Report 21 under the BCLI’s “publications after 1997.” Professor Salzberg’s mandate was to identify the issues and make recommendations. He explained that in 1993 there were many complex inter-related statutes on the books with only parts proclaimed which left areas uncovered. What was needed was a rationalized scheme, a province-wide strategy for end-of-life care in B.C. and a change to the dispute resolution scheme. In his report he covers determination of capability issues, scope of authority of temporary substitute decision-makers, the criteria for substitute decision-making with respect to health care, “do not resuscitate” orders, levels of care instruction, and dispute resolution and the Health Care Review Board.

Professor Salzberg noted that in his opinion the Ministry of Health must consult with legal experts about the specific impact after concrete changes to the legislation in this area are announced.

In this regard, Public Guardian and Trustee Jay Chalke described at a recent Elder Law Section meeting some of the changes to the Patient’s Property Act being proposed by the government. Legislation introducing these changes was supposed to have been introduced in May, 2004 but has yet to be tabled.

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