BarTalk April 2005
Volume 17, Number 2

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.

ADR-Okanagan
The Honourable Judge Hugh Stansfield led a discussion on possible alternate dispute resolution opportunities in provincial court in light of the anticipated increase in the monetary jurisdiction of the small claims court from $10,000 to $50,000. The provincial court has been asked to consider how it might be able to cope with an increase in cases without an increase in judicial resources. Many ideas are being considered:

• an expanded form of sworn pleadings to allow the court to screen cases in advance and be equipped to make a summary decision. A plain language interactive computer program is currently being used in California to help litigants prepare their pleadings.

• a two-track process: (1) for claims up to $10,000 a judge would meet with litigants for about one hour and render a binding decision based on sworn pleadings and the discussion under oath at that “summary hearing”; and (2) for claims over $10,000 there could be mandatory mediation with non-judicial mediators or a judicial settlement conference and if settlement could not be reached the court would direct in a separate pre-trial conference what evidence or other procedures would be required in order for a judge to resolve the matter in a one-day hearing.

Family Law-Vancouver
Madam Justice Risa Levine spoke about judicial settlement conferences in family law proceedings at the Court of Appeal. A two-year project was begun to assist parties to resolve appeals at an early stage. The process is voluntary and flexible and is based on a highly successful program in place since 1998 at the Quebec Court of Appeal. It is hoped that the program will provide an alternative to the “all or nothing” approach of regular proceedings.

The judge’s role at the settlement conference is not to offer his or her opinion on the merits of the appeal but to act as a mediator. All issues discussed at the settlement conference are off the record and information and documentation are held separately from the court file. The five judges participating in the program are Madam Justice Levine, Madam Justice Prowse, Madam Justice Rowles, Mr. Justice Donald and Chief Justice Finch. Once a judge determines that the case is appropriate for the program a telephone conference is scheduled between the judge and counsel to decide what materials will be provided, who should attend and when the conference will be held (hopefully within 30 days of the request). A case will not be suitable for the program if it involves a significant issue of law, is too complex or involves allegations of domestic violence or abuse. If the settlement conference is successful the parties will sign a settlement agreement, the terms of which may be included in a consent order. If it is not successful, the file will go back on the regular track and the suspended time limits will be reinstated. The judge involved will not hear any matters concerning the case in the future.

Freedom of Information and Privacy Law
David Loukidelis, Information and Privacy Commissioner for B.C., spoke about the report his office issued concerning the U.S. Patriot Act and government outsourcing in B.C. This U.S. federal law, enacted in October 2001, expanded the intelligence gathering and surveillance powers of American law enforcement and national security agencies. It increased American authorities’ ability to obtain orders from a secret court, the Foreign Intelligence Surveillance Court (FISC) requiring any company under U.S. jurisdiction to hand over information in its control and imposing stiff penalties on any company that reveals it has been ordered to do so. Mr. Loukidelis’ office began receiving requests for guidance on dealing with the implications of the Patriot Act in light of the B.C. Government’s pursuit of a policy of alternative service delivery under which private sector companies perform public services formerly performed in-house. A public consultation process was begun with the goal of assessing Patriot Act privacy implications and recommending practical and effective measures to meet identified risks. Research conducted by Mr. Loukidelis’ office revealed that the FISC could issue a secret order to a person subject to the court’s jurisdiction to seize personal information records located outside the U.S. and deliver them to American authorities, all without the intervention of Canadian authorities. Contrary to the submission of the B.C. Government that the risk of Patriot Act access is “vanishingly small,” the report issued by Mr. Loukidelis’ office concluded that such a threat is real and requires legislative and other meaningful responses to ensure protection of information.

The report did not recommend a ban on outsourcing but did recommend that the Freedom of Information and Protection of Privacy Act, the B.C. legislation governing privacy practices of public bodies, be amended to prohibit disclosure of information located in B.C. in response to a foreign court order. There are clear indications that such a law may cause a U.S. court to decline to order production of personal information because of such foreign laws. In direct response to this, the B.C. Government enacted Bill 73. Mr. Loukidelis sees this as a good start but recommends that it be strengthened by being clearer and providing much stiffer penalties than the maximum $500,000 fine, as well as making it applicable to existing outsourcing deals.

Further, the report recommends that contractual arrangements and legislation be put in place to ensure that persons subject to U.S. court jurisdiction do not have legal or practical control over personal information located in B.C. It also recommends that the federal and provincial governments seek assurance from American authorities that the U.S. will not seek orders for access to personal information records in B.C. Finally the report recommends that the federal and provincial governments should also commission a comprehensive audit of interprovincial, national and transnational information sharing agreements involving public bodies in B.C.

Insurance Law
The Safe Streets Act (Bill 71) has been passed and will come into force by regulation. The Attorney General has stated that the need for this legislation arose because of the request by citizens for the government to respond to the complex problems of mental illness, addictions and homelessness and the fear of physical and verbal confrontation on streets and sidewalks. Bill 71 makes it an offence for a person to solicit in an aggressive manner or solicit to a captive audience. It is also an offence, unless a person solicits a ride in an emergency situation, for a person to walk on a roadway if the roadway has a sidewalk, walk on the right side of the roadway that has no sidewalk and be on a roadway to solicit a ride, employment or business from an occupant of a vehicle.

Shelley Bentley practises wills and estates law at Kerr Redekop Leinburd & Boswell in Vancouver.

This article originally appeared in the April 2005 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.