BarTalk April 2001
Volume 13, Number 2

A National Organization

by Shelley Bentley

There are 72 BC Branch provincial Sections. These Sections play a vital role in keeping members up-to-date on changes in the law and 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 sample of the recent activities of many Sections.

Constitutional Law (Joint meeting with the Institute of Public Administration of Canada)
SFU Professor Maureen Covell spoke about Canadian federalism and the legacy of Pierre Trudeau. Trudeau’s view of Quebec and federalism was at odds with that of Pearson and Mulroney. She described the approach of those leaders succinctly by noting that the Pearson approach emphasized the question; “What does Quebec want?” Professor Covell commented that under this approach the break-up of the country could only be avoided by meeting the needs of the less extreme nationalists. This approach was reflected in the Meech Lake and Charlottetown accords and in the recognition of Quebec as a distinct society. Trudeau adamantly opposed this approach. Rather, he asked the question “What do French Canadians need?” In his view, French Canadians were defined by their language and not by virtue of their residence in Quebec. Thus, in order for French Canadians to be comfortable in Canada they had to be comfortable with the workings of the Canadian Government at all levels and in all provinces. In Trudeau’s view, it was the responsibility of the Federal Government, and not Quebec, to protect and enhance the French language.

Environmental Law
The Federal Government’s Aboriginal Fishing Strategy (AFS) and its shortcomings were the topics of discussion in a recent Environmental Law Section meeting. The AFS is a program that was intended by the Federal Government to encompass all elements of aboriginal access to the fisheries resource. Outside the AFS, First Nations and individual members are able to enter into the commercial or recreational fishery on the same basis as any other Canadian citizen. The raison d’etre behind AFS is to increase economic opportunities for aboriginal people in the fishing sector. It seeks to do this through negotiated agreements with First Nations by:

• Permitting self-management of aboriginal fishing;

• Improving fish habitat;

• Increasing fish resources;

• Increasing access to the fishery for food, social and ceremonial purposes as well as allowing for the sale of fish; and

• Providing financial assistance.

The AFS has come under severe criticism by both non-aboriginal commercial fishers on the West Coast and aboriginal fishers on the East Coast. The BC Court of Appeal decision in Regina v. Houvinen and the Federal Trial Court decision in Shubenacadie (a.k.a. the Indian Brook Band case) highlight some of the reasons for this.

Family Law-Victoria
Family lawyer Donna Taylor reviewed the purpose of the new Rule 51A and the criticisms of Rule 65 that it seeks to redress. Rule 65 has been criticized as being too complex especially in the context of the many short, straightforward applications subject to it. With its 48 sub rules Rule 65 has also been considered unnecessarily complicated. Slated to come into force on July 1, 2001, Rule 51A will repeal Rule 65, implement a uniform chambers practice throughout BC and provide a procedure for setting applications for hearing. Rule 10 (originating applications) and Rule 44 (interlocutory applications) will be amended to provide for a new procedure for commencing applications and for the exchange of materials.

Real Property and Commercial Law
Changes in residential real estate practice and the Western Law Societies Conveyancing Protocol was the topic addressed by Ron Usher, Margaret George and Ralston Alexander. The Protocol allows BC real estate lawyers to use a standard form opinion in residential mortgage transactions that, for institutional lender clients, would be a satisfactory alternative to obtaining a building location survey. If a lender relies on a protocol opinion to fund a mortgage and suffers a loss as a result of a defect that would have been disclosed by an up-to-date survey, the Lawyers Insurance Fund will accept liability and pay the cost of repair or loss suffered. The impact on the Fund is expected to be minimal. Provided a lawyer has complied with the Protocol, paid claims will not trigger any deductible or surcharge for the lawyer.

Young Lawyers
The Honourable Judge Cohen gave a helpful and humourous presentation on the art of advocacy. He had the following tips to pass on to Young Lawyers Section members:

• Advocacy starts the day the client walks into your office. Listen to the client.

• Find out what the client wants, then moderate what they want. If you cannot get what they want get rid of them.

• Advocacy includes discussing settlement with the opposing side.

• In a family case conference use the judge to assist you during the conference and make sure the judge has all the necessary information. In a civil settlement conference make sure you attend with authorization to settle.

• 17 per cent of all cases go to trial.

• A brief opening helps organize and give direction to the judge.

• Make certain objections are timely and appropriate. Relevancy and hearsay are the most common objections.

• Always end your questioning with a good point. Never end on a bad point.

• Keep your eye on the judge. If he or she is writing then slow down. If he or she is sleeping work the word “sex”into the case!

• Summations cannot be written ahead of time. Ask for a short break to gather your thoughts before proceeding with your summation.

• Make certain to moderate your client’s expectations. The trial process is like going to Vegas, you can win or lose regardless of the strength of your case. Never guarantee a win for a client.

• If the judge is not interested in your case, build the transcript for appeal purposes.

Wills and Trusts-Okanagan
Garry Benson spoke on distinctions between traditional wills and estates practice that should be noted when drafting an Indian will and dealing with Indian estates. He spoke about the complications with respect to transmission of property and certificates of possession for property owned by status Indians, the transfer of “cultural property”, and the authority of the Minister of Indian and Northern Affairs. Mr. Benson reviewed a number of sections of the Indian Act, including ss. 2, 4, 20, 25, 28, 42 to 50 and 60.

Wills and Trusts-Victoria
The new estate planning opportunities offered by alter ego trusts and joint spousal trusts were discussed by Blair Dwyer at a Victoria presentation and by Tom Felhauer at a recent Okanagan meeting. These types of trusts have been made attractive by Bill C-43, a proposed revision to the Income Tax Act that has not yet passed. The changes will be retroactive to January 1, 2000 and, if passed, will allow the transfer of assets to trusts at cost in certain circumstances. The opportunities afforded by a transfer in ownership of assets can, under certain circumstances, include avoiding the costs and public nature of probate, avoiding Wills Variation Act claims as well as protecting assets. There are also significant benefits to the use of these trusts in respect of the transition of family owned businesses.

An alter ego trust is set up by a settlor who is the beneficiary for his or her lifetime. A joint partner trust is set up by one person for the benefit of the “couple” who must be the only beneficiaries of income and capital until the death of the last surviving spouse. Under the proposed amendments a couple may be married or common law, including same sex couples. For both an alter ego trust and a joint partner trust the settlor must be 65 or older, although the partner may be younger.

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

This article originally appeared in the April 2001 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.