Keep your practice current
by Fran Hodgkins

The following are brief summaries of several recent Section meetings held throughout the province. More detailed information, minutes, and Section Papers from the Section meetings are accessible online at www.cba.org/bc for enrolled CBA members.

Administrative Law – Vancouver
Meeting: October 23, 2007 (Inaugural meeting using CBABC’s new Webinar tool)
Speaker: Gregory J. Levine, Ph.D. LLB.
Topic: The Law of Government Ethics – Federal, Ontario and British Columbia, “Ethics Law Undressed”

Mr. Levine spoke of the scope of government ethics, and noted the trend toward the increasing codification of ethics laws federally and in B.C. Mr. Levine noted that government ethics legislation is based largely on a profound valuing of public service and reflects both the deepest fears about government as well as the deepest aspirations of how one can act. With religious as well as cultural roots one has heard that ethics gives life to morality. He stressed that there must be ethics laws to fulfill the democratic ideal. Members in attendance at this luncheon meeting and by Webinar (computer and phone) heard of a burgeoning area of law designed to hold government accountable by addressing issues of corruption, influence peddling and abuse of public trust. He spoke of the goal of openness whereby processes are knowable and known.

Banking Law
Meeting: October 3, 2007
Speakers: Richard Olson, Chair, The Commercial Tenancy Act Reform Project BCLI; William Cooper, Boughton Law Corporation
Topic: The Status of the Commercial Tenancy Act Reform Project, Recent Changes to the Canada-US Tax Treaty and the Lipson Case

Mr. Olson provided a backgrounder on the two-year Commercial Tenancy Act Reform Project and discussed the paper prepared by the British Columbia Law Institute regarding the project which will culminate in the publication of a final report in June 2009. Subsidiary goals for the project include promoting understanding of legal issues in the commercial tenancy field generally, and elucidating the current operation of commercial tenancy legislation in B.C.

Mr. Cooper spoke on changes to the Canada-US Tax Treaty that has been proposed in the recently signed but as yet unratified 5th Protocol. The Protocol has coming into force provisions that vary depending on the particular amendments. In respect of taxes withheld at source, these provisions will apply to amounts paid or credited on or after the first day of the second month that begins after the date on which the Protocol enters into force. Cross-border interest that is currently subject to a 10 per cent withholding fee will be reduced to 0 per cent for arm’s length loans thus eliminating the need for so-called 5/25 loans and their complex provisions. Similar withholding rate reductions will be afforded related party loans but those reductions will be phased in over three years. Also, Treaty benefits will be extended to US LLCs, thereby reducing Canadian dividend withholding rates from 25 per cent to 5 per cent or 15 per cent, depending on the level of equity ownership. A new Treaty avoidance rule, deferred for three years, appears to have the effect of eliminating the tax benefits of the new BCULC, created by amendment to the BCBCA, which became law at the end of October, 2007.

Domestically, Mr. Cooper advised that the decision in Lipson v. The Queen, 2007 FCA 113, brings into question the findings in the SCC Singleton decision at 2002 DTC 6969. Singleton held that a taxpayer could restructure his financial affairs to obtain a tax deduction for interest on borrowed funds which were used to purchase a personal residence. The Canada Revenue Agency has indicated that it is reconsidering its position of allowing such cash damming techniques given the successful application of GAAR in Lipson.

Employment Law & Labour Law
Meeting: October 16, 2007
Speakers: Theodore C. Arsenault and Bruce R. Grist
Topic: The End of Mandatory Retirement and its Effect on Unions and Employers

Mandatory retirement is effectively prohibited by an amendment to the definition of “age” in the Human Rights Code effective January 1, 2008. Mr. Arsenault reviewed the implication on labour relations and recommended that in negotiating terms in collective agreements, parties will need to determine what accommodations are in place and ensure that the language of the collective agreement will withstand the scrutiny of the Human Rights Code. In the end result, Mr. Arsenault’s view is that there will be increased efforts by employers to have employees agree to voluntary buyouts and severance packages in order to have those employees leave the workplace at age 65. Bruce Grist reviewed the impact of mandatory retirement on pension plans and benefits plans, as well as the legislative amendments to Section 13(3)(b) of the Code, as per the summary handout which was provided by Mr. Grist to Section members.

Human Rights Law
Meeting: September 26, 2007
Speaker: Anita Braha
Topic: Duty to Accommodate: A Review of Recent Human Rights Tribunal Decisions

Anita Braha, Human Rights lawyer, presented an educational and thorough review of recent cases regarding the Duty to Accommodate in British Columbia. Ms. Braha’s informative PowerPoint presentation included the following topics: Relevant legal test to establish discrimination; Significant cases; and the Summary of case principles. The Question and Answer session covered issues such as cases where undue hardship has been found, whether counsel should continue to argue the Law analysis which is a test to establish discrimination, and where and when to argue Law.

Immigration Law
Meeting: September 26, 2007
Speakers: David Rizzo, Manager, Program and Communications Division (Pacific Region), CBSA; Tony Wong, Senior Project Manager, 2010 Olympic and Paralympics Winter Games (Pacific Region), CBSA; Don MacKay, Senior Project Manager, 2010 Olympic and Paralympics Winter Games (Pacific Region), CBSA
Topic: Immigration and Customs Perspectives and Related Initiatives Concerning the 2010 Olympic and Paralympics Winter Games

Messrs. Wong, MacKay and Rizzo responded to questions submitted by Section members in advance of the meeting concerning immigration and customs matters as well as follow-up questions and comments during the meeting. Some of the questions and answers that were highlighted were: Q: Pertaining to the Olympics and Immigration, will foreign athletes be required to obtain visas as is usually required? A: Rather than visas in the passports, the foreign athletes will wear a conspicuous identity/security card around their necks at all times. Q: How will the CBSA handle foreign athletes with criminal records? A: In deciding whether to allow the athlete to enter Canada, the CBSA will assess months in advance of the Games whether the person is a danger to Canada, as per the usual analysis. If the benefits of admitting the individual outweigh the risks, then a special immigration document called a Temporary Resident Permit may be issued in addition to the identity/security card. Q: If a foreign worker does not have the work permit yet and his personal goods have arrived in Canada from abroad, is it possible to say what percentage rate of duty he will be assessed on his personal goods? A: There is technically a minimum $500 flat rate for customs and taxes on goods brought in, but it is not often assessed. CBSA wants to stay away from tariffs, as it is moving away from the collection of revenue and focusing enforcement, such as contraband and anti-terrorism, since the split from the CCRA.

This article was published in the December 2007 issue of BarTalk. © 2007 The Canadian Bar Association. All rights reserved.