BarTalk December 2003
Volume 15, Number 6

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.

Aboriginal Law-Vancouver
David Butcher and Chris Harvey, QC, spoke about the recent Provincial Court decision in R. v. Kapp et al, 2003 BCPC 279. In this case commercial fishers were charged with fishing on the Fraser River when the salmon fishery was open to fishers authorized under communal commercial licences issued to certain bands by the Department of Fisheries and Oceans (DFO) under its Aboriginal Fishing Strategy. Judge Kitchen held that the Regulations under which the licences were issued were inconsistent with section 15 of the Charter because the licensing program discriminated against other commercial fishers on the basis of race. In essence the Aboriginal Fishing Strategy required a bloodline connection to designated First Nations. The Attorney General of Canada has filed a Notice of Appeal in the Supreme Court of B.C. The appeal is set for April 19, 2004. The speakers said this case raises important issues about the DFO’s statutory right to manage the fishery according to social, political and economic objectives, as well as conservation and management. While the decision in the well-known Sparrow case dealt with the right of aboriginal people to fish for food and for social and ceremonial purposes, the B.C.S.C.’s decision in this case will focus on commercial rights.

Family Law-Victoria
Law Society Practice Advisor Felicia Folk spoke about the most common insurance claims and complaints in family law. Most insurance claims in family law are in the pension area. Claims counsel maintain that pensions tend to be treated as an after-thought even though they are generally complex and not well understood. They recommended sending clients to a pension consultant. A proper review of pensions involves gathering detailed information and usually contacting the pension authority directly. It is necessary to understand the kind of pension involved including the income stream consequences of voluntary and involuntary early retirement, remarriage, disability and change in spousal status.

Also significant is the number of claims arising in the failure to protect assets, especially neglecting to file CPL’s or restraining orders early in a dispute. Ms. Folk recommended investigating assets, including trusts, thoroughly and early on and advising credit card companies when a card is no longer jointly held.

The most common missed limitation periods are the one-year period for common law spousal support claims and the limitation for step-parent child support.

The main reasons for complaints against family lawyers are: failing to communicate with the client; taking on more than the lawyer can handle; not learning what the lawyer needs to know; not insulating oneself against the angry self-represented other party. With respect to self-represented litigants, Ms. Folk recommended not taking phone calls and insisting on written communication.

Ms. Folk summarized by recommending that lawyers take care to communicate risk to clients and let them make the decisions about accepting risk. Without a lawyer’s written evidence, the client’s oral evidence will be accepted.

Labour Law
The Personal Information Protection Act, Bill 38, governing the collection and use of personal information in the private sector, passed Third Reading and will become law on January 1st, 2004. Norman Trerise and David Blair presented an analysis of this new legislation from the perspective of the employer and employee, respectively.

The discussion began with a comparison of this new B.C. legislation with the existing federal privacy legislation. The Personal Information Protection and Electronic Documents Act (PIPEDA) came into force in 2000 and was to be phased in over three years, allowing certain sectors to become compliant. When fully operational it will apply to: federal works and undertakings; the Northwest Territories and the Yukon; the personal health information sector; and the entire private sector in Canada unless by January 2004 a province has enacted substantially similar legislation. PIPEDA’s goal is to ensure that an organization cannot collect and distribute personal information without a person’s consent and authorization. It governs the collection, use and disclosure of personal information from employees and requires the consent of employees with very limited exceptions.

Mr. Trerise commented that its overriding rationale is “reasonableness of purpose.” If the purpose for the collection, use and disclosure is not reasonable there will be a contravention regardless of whether or not consent of the individual has been obtained. In Mr. Trerise’s view the principles governing “reasonableness of purpose” are:

• Accountability: Organizations must be accountable to the public for their use of information.

• Justification: Organizations must identify the purpose for disclosure of information.

• Consent: Organizations must obtain consent before collecting, using or disclosing information about individuals.

• Limited collection: Information collected must be limited to that needed for the purpose.

• Limited use in disclosure and retention of information: If any new purpose is motivating the use or disclosure it will be necessary for the organization to obtain a fresh consent.

• Protection of privacy safeguards: Organizations must take precautions to ensure information remains private through the use of electronic codes or physical barriers to access, etc.

• Openness and individual access: Organizations must make information readily available to the individual about whom it is collected.

• Right of enforcement: Individuals have the right to challenge organizations and the way they handle information.

Both speakers were of the view that the new B.C. legislation will likely be declared “substantially similar” to the federal PIPEDA.

The right of individuals to access information and to challenge employers who mishandle it are areas that are not well defined in B.C. The scope of this right will be defined through arbitration, rulings by federal privacy commissioners and through the federal courts. Mr. Trerise noted the extensive set of exceptions to the requirement of consent in the new B.C. legislation and speculated that this would be a major battleground for litigants.

Poverty Law
At a recent meeting, Carrie Gallant and Peter Eastwood outlined the role of UBC’s new “CoRe Clinic” (“CoRe” for “conflict resolution”) in providing mediation services to the public. The Clinic was set up to meet the needs of students and of litigants. Headed by lawyer, David Liden, CoRe provides further training and experience for students who have completed UBC Law School’s ADR courses. CoRe charges a nominal fee to members of the public based on affordability. Two students act as mediators in the presence of an experienced, qualified mediator. Anyone may use the Clinic’s services. Once contacted, a Clinic intake worker contacts the other party involved in the dispute to find out if there is a willingness to mediate.

This article originally appeared in the December 2003 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.