amici curiae paralegals open uncontested divorce...

Published by Law Courts Center JUNE 2015

The Amici CuriaeParalegal Programme,which is now in its

fourth year of operations, isexpanding its services toserve temporary foreignworkers (“TFWs”) who needhelp in preparing theiruncontested divorce applications.

The clinic is offering help toTFWs, specifically whocome from countries like thePhilippines where divorce isnot allowed, who need tocomplete their applicationfor an uncontested divorceorder with the SupremeCourt of British Columbia.The clinic also helps TFWswho have children in theirnative country, and are in the process of applying toinclude their children, butnot their spouse, in theirapplication to become aCanadian permanent resident (“PR”). For TFWswho do not wish to includetheir spouse in their PRapplication, ImmigrationCanada requires proof ofseparation, such as a divorce

order. The objective of programme is to help draftthese forms to meet the legalrequirements and guidelines.

The Amici Curiae volunteersare skilled paralegals whohave at least two years litigation experience; they have completed theirtraining in preparing uncontested divorce applications in BC.

InnovationWe have adopted privatepractice service standards,integrated innovative concepts like unbundlinglegal services, and usedtechnology to deliver whatwe hope will be a top notchservice. Consider:

Unbundled service. Wehave streamlined uncontest-ed divorce applications inBC to eight steps. Ourclients can engage us in anyof the eight steps. Each stepwill specify what documentsneed to be prepared and sub-mitted to the court registry.

Certitude. Our clients willbe told how much theyshould expect to pay andhow long each step shouldtake.

Support. At each session,will have at least one volun-teer who speaks Filipino. Atthe end of each session, theclients will receive a writtenchecklist or instructions. Inbetween service times, theywill receive email or textreminders in the language oftheir choice.

About our clinicEach clinic session will havea duty counsel present toreview the completed forms.No legal advice will begiven at the clinics.

Our clinics will be held onSaturdays. Each session isone hour long. Clients canchoose either the 2 pm or3pm timeslot. Our first clinic is on June 6, 2015.

Email address:[email protected]

Reservations number:778.322.2839Location: Justice EducationSociety of BC Room 260 -800 Hornby StreetVancouver, BC V6Z 2C5

The TFW clinic is self-fund-ed, thus our clients will becharged $25 for each sessionto help cover expenses.

Our TFW clinic is the latestaddition to our growing listof services which includethe civil and human rightsmatters.

This is an exciting time forincreasing access to justicein British Columbia. If youare interested in participat-ing as duty counsel or para-legal, please write me.!

Dom C. Bautista is the executive director of LawCourts Center. When notteaching, he tinkers with waysto increase access to justiceto SRLs in BC. Follow him atTwitter @lccdombautista

w w w . l a w c o u r t s c e n t e r . c o mJune 2 Lecture: Does culture colour our courts?June 9 Workshop: Legal Research and SRLsJune 11/12 Civil Litigation 102June 19 Trust Accounting 101 (Kelowna)June 29 Part 7 Benefits 101August 6 List of Documents 201September 9 Trust Accounting 101 / 102October 2 Annual Paralegal & Support Staff Conference

Amici Curiae Paralegals Open Uncontested Divorce Clinic

Supple leatherbrief cases perfect for chambers, mediations ortrials!

Trust Accounting 101 - From Fundamentals to Best Practices

3 Lessons from the Law Society of BC Suspension of Mr Faminoff

There are many lessons to be learned from the March 26 2015 Law Society of BC ruling against William Faminoffwho had to answer eight allegations of professional misconduct stemming from his having backdating statements ofaccount and having improperly handled his client's trust funds. The steps that Faminoff took to mitigate his situation isnotable, but here are the three that I picked.

Lesson # 1 An egregious act has no gradation.I like to say that the accounting principle of materiality has no place in trust accounting. I now add that there is nodifference in bad act. The ruling ruled:

“ [28] The Panel, considering the Respondent’s misconduct on a global basis of all the allegations proven againsthim, does not agree that there is a qualitative difference in his actions that would lead to a conclusion that theyshould be considered less serious.

Lesson #2 Assessing errors goes beyond the specific victim.In Faminoff’s case, the victim was ICBC. The disciplinary panel found:

“ [47] The Respondent’s failure to comply with the trust and accounting Rules and breaches of undertakings didnot involve misappropriation of funds. There were no victims. Nor was there any misappropriation of funds inrespect of the Respondent’s intentional misleading of the Law Society in connection with the compliance audit.

Nonetheless, in considering the law society’s mandate to protect the public interest,

“[27] The Law Society submits that, while the Respondent’s breaches of undertakings did not result in any lossesto ICBC, the breaches were not an isolated incident, but rather an ongoing course of conduct suggesting a cavalierattitude toward undertakings on the part of the Respondent. It further submits that any breach of an undertaking is a serious matter.

Lesson #3 A lawyer’s prior disciplinary record can increase their future sanctions.Members should remember that their history of bad conduct affects how hear panel reviews a complaint. In LawSociety of BC v. Batchelor, 2013 LSBC 09 at para. 48: The Respondent’s prior disciplinary record is an aggravatingfactor that requires an increase in the sanction to be imposed beyond the range of the sanctions imposed for similarmisconduct by members without a disciplinary history. This increased sanction would be in accordance with theprinciple of progressive discipline, the need for specific deterrence and the need to ensure public confidence in the legalprofession.

In the case of Faminoff:

“ [42] This is particularly so when the Respondent’s previous conduct, while not exactly the same, did involvefindings of false representations and a failure to disclose the true facts to his firm. Those findings were similar innature to the findings of this Panel that the Respondent intentionally misled the Law Society. It is also an aggravating factor that the Respondent has had two similar findings against him during his career. !

We are presenting Trust Accounting 101 in Kelowna on June 19 and in Vancouver on September 9, 2015.

Law Courts Center150-840 Howe Street, Vancouver, BC Canada V6Z 2L2

Registration:For lawyers, go to: WWW.LAWCOURTSCENTER.COM

Course Fees: (course materials and GST 128573300 included) q June 19, 2015 Kelowna Single In-Person Seat (TRA 101) at Sandman Inn $634.00

q September 9, 2015 Vancouver Single In-Person Seat (TRA 101) $576.25

q September 9, 2015 Vancouver Single Webinar Seat License (TRA 102) $576.25

q Please send me a copy of the manual only as I am not able to attend. $246.75

1506 B!

LOCATION Kelowna: Sandman Inn 2130 Harvey Avenue Kelowna BC V1Y 6G8Vancouver: Law Courts Center CPD Room 150 - 840 Howe St, Vancouver BC V6Z2L2

INSTRUCTORS:

KRISTA ADAMEK AND CHARLES NIP Law Society of BC Trust Regulation Department Auditors

DOM BAUTISTA Law Courts Center Executive Director

These are learning outcomes for this course:At the conclusion of this the course, including the completion of all pre, in-class and post-course work, the participants should be able to competently:

1. Understand the mandate of the Law Society of British Columbia and the role of its Trust Regulation Department

2. Discuss the duty and ethical obligation that lawyers and support staff have in handling clients' trust funds

3. Explain the key concepts in trust accounting4. Understand how to correctly receive and withdraw trust funds5. Understand how to properly handle cash transactions6. Demonstrate how to correctly reconcile pooled trust accounts7. Understand the annual trust report filing requirements8. Apply the Trust Administration Fee (TAF) to eligible trust deposits9. Report a Division 7 rule violation in writing to the Law Society


Learn about the Trust Regulation Department of the Law Society of BC and seven key concepts in

trust accounting. You will also learn how to set up and operate trust accounts pursuant to the Legal

Profession Act and Law Society of BC Rules. Finally, you will gain an understanding of the reporting

requirements of the law society. Discover the best practices and tips from senior auditors of the Law

Society of BC Trust Regulation Department. This 7 hour course focuses on professional responsibility,

ethics, client care and relations. You have a choice between attending in-person or by webinar.

SCHEDULE FOR (9:00 AM TO 5:00 PM)JUNE 19, 2015 (KELOWNA) & SEPTEMBER 9, 2015 (VANCOUVER)

Trust Accounting 101

B!201506

In the previous article, wewrote about what neededto be considered when an

Order has to be prepared for acivil matter. These are basedon the remarks made at theJanuary 20, 2015 Amici CuriaeLecture, Deputy DistrictRegistrars Farrah Asin andHarjit Dhinjal of theVancouver Supreme CourtRegistry. Let us address somecommon issues that arise whenpreparing common types ofOrders.

Order Made AfterApplicationAn Order Made AfterApplication (Form 35) is thestandard form to use when anOrder is spoken to or whenthere is no prescribed form touse. This form of Order mustcontain the title “Order MadeAfter Application”. The adju-dicator must be correctly iden-tified. A Master must be iden-tified as “Master [Last Name]”and a Judge must be identifiedas “The Honourable Mr. orMadam Justice [Last Name]”.The Master’s or Judge’s firstname and/or initials should not

be included in the Order. Thepreamble of the Order shouldidentify the correct date andlocation where the hearingtakes place. If the hearing isin Vancouver, the Ordershould state “Vancouver,British Columbia”. The par-ties who attend the hearingshould be clearly identifiedand if a party who is servedwith the hearing materialsdoes not attend, then thatshould also be set out in theOrder.

For spoken-to orders, partiescan only add terms that werepronounced in court. Theterms of the Order must corre-spond with the Clerk’s Notes.If clerk’s notes do not matchthe terms of the order, thenthe order is rejected with theindication that clerk’s notes donot match.

Case Plan OrderA Case Plan Order (Form 21)is the standard form to usewhen you are preparing anOrder following a CasePlanning Conference hearing.After a Case Plan Order is

entered, it can be amendedeither by consent (pursuant toRule 8-1(2)(a)) or with theCourt’s approval pursuant toRule 5-4(1)(b)(i).

To amend a Case Plan Orderpursuant to Rule 5-4(1)(b)(i),the party seeking the amend-ment must:1. serve all parties of recordwith a Requisition (in Form17), 2. prepare a supporting letteraddressed to the Registrywhich sets out:a. the Judge or Master whomade the Case Plan Order; b. the requested amendments;andc. the basis for the request toamend the Case Plan Order;3. provide a draft of the pro-posed Order; and4. provide any supporting doc-uments, other than affidavits,the party considers appropri-ate.

Amending MaterialsThe party applying to amendthe Case Plan Order must pro-vide the Amending Materialsto the Registry together with astatement that confirms theother parties of record havebeen served with theAmending Materials. Thestatement must also identifythat there has either been noanswer to the AmendingMaterials within 7 days afterthe date of service, or that aresponse was received. If theother parties of record providea response, then the respond-ing materials must also beprovided to the Registry.

A Case Plan Order may alsobe entered by consent of allparties and should be preparedaccording to the ConsentOrder procedures sets outbelow.

The Do’s and Don’ts of Preparing a Civil Order Part 2

2 C I V I L L I T I G A T I O N S T U D I E S

Consent Order / Desk OrderTo file a Consent Order / DeskOrder, you must include aRequisition in Form 31. The Requisition is the firstdocument that the Registrarwill examine and must set outthe Rule the Consent Order /Desk Order is relying on. If aparty of record does notrespond, you must say so inthe Requisition.

The Consent Order must beprepared using Form 34 and aDesk Order must be preparedin Form 35. The ConsentOrder / Desk Order must besigned by all parties of record.If a party of record does notsign the Order, you mustinclude an explanation why.The preamble of a ConsentOrder must set out that theapplication for the Order is“Without a Hearing and ByConsent” whereas a DeskOrder must identify that theOrder is “Without a Hearingand Upon Reading theMaterials Filed Herein”. !

This article concludes nextmont. Claudia Au, MayetteOstonal are members of AmiciCuriae Paralegal LitigationUsers Group that published theGuide to Civil Litigation forSelf-Represented Litigants (BC).

This will also appear in a blogfor SRLs this summer: representyourselfbc

Exhibit Stamp self inking $55

This is Exhibit “ ” referred to in theaffidavit of .....................................sworn before me at ......................this ........ day of ............... 20 ...............................................................

A Commissioner for taking Affidavitswithin British Columbia

BC Civil LitigationGuide $ 750

BC Civil LitigationGuide

Service Stamp self inking $50

Service of a true copy hereof admittedon this ........ day of ............... 20 ...............................................................

Solicitor for ...............................

British Columbia Civil Litigation GuideDESK REFERENCE MANUAL VERSION 9.1

PLUS MATERIALS ON WORKING WITH SELF-REPRESENTED LITIGANTS

How to order your copy (version 9)The cost of the BC Litigation Guide Desk Reference Manual is $750 plus GST and shipping.

One copy of BC Civil Litigation Guide Desk Reference Manual $750.00Shipping $ 20.00GST (128573300) $ 38.50Total $808.50

qYes, I agree to be invoiced annually for $262.50 for the updating service. (_______ initial)

Please complete the form below and return to: Law Courts Center 840 Howe Street, #150, Vancouver, BC Canada V6Z 2L2. Make cheques payable to Law Courts Center.

For more information, write: [email protected], or call: 604.685.2727.

MR /MS

FIRM TEL FAX

ADDRESS

EMAIL

AREAS OF PRACTICE

Law Courts Center • Canadian Paralegal Institute150 - 840 Howe Street, Vancouver, BC Canada V6Z 2L2 1312 B!

Table of Contents

1. Introduction2. Systems (Administrative)3. Small Claims Court4. Service and LimitationPeriods5. Commencing a Proceeding 6. Discovery

7. Document Disclosure8. Chabers Applications9. Trial Preparation 10. Experts11. Summary Trials12. Fast Track Trials

13. Case Planning Conferences14. Trial ManagementConferences15. Settlement Considerations16. Bill of Costs17. Alternatives to Trial

What our subscriberssay about our manuals

The manual is avery good reference tool.The checklistsand flowchartsare extremelybeneficial.

The practice tipsare so helpful.

‘‘

’’

‘‘’’

ABOUT THE AUTHORS

This manual is the result of a collaboration of efforts of senior paralegals including: CharleneAndrew, Kate Austin, Roxanne Fonagy, Dee Rogers Lenise Rouse, Pat Terlecki, and NancyVianello.Through their collective experience as paralegals, they have combined their knowhow towrite the most complete and easy-to-understand procedural manual on civil litigation in BritishColumbia.

Cheryl M. Stephens, LLB has provided substantive guidance, plain language advice, and editorialassistance.

Managing Editor: Dom C. Bautista

OUR GUARANTEEPlease feel free to examine our BC Litigation Guide Desk Reference Manual for 14 days. If youare not satisfied, just return the undamaged Litigation Guide.

Written in plain language

A focus on Self-Represented Litigants

Flowcharts that include the authority

Practice tips in every section

A Desk Reference Manual Designed in an Easy-to-Use Format!

Organizing the Trial

The most important thing to remember about preparing for trial is that you must be organized. Everything at a trial happens on a tight schedule from the moment you obtain a trial date until the day you collect your files to leave the courtroom. Preparation needs to be timely, efficient, and stress-free.

More than any other part of the litigation process, trial preparation involvespaperwork. You prepare books of documents and pleadings, briefs of argumentand case law, read-ins of examinations for discovery and interrogatories, lists ofwitnesses, exhibits, accounts, files, numbers, and tax returns. Once you haveprepared the lists of documents, you will have to pull and prepare briefs of thelisted documents.

1

Material facts are those facts which are essential to prove a cause of action or defence. The evidence to support those material facts should not be put in the pleadings. Material facts do not include law – whether principles of common law or public statutes.

Allegations of fact should be straight-forward, concise, specific, and clearly set out the material facts.

Evidence, adjectives, opinions, and observations are not to be included inpleadings.

Be attentive to the circumstances of the specific case and claim when using precedents and adapt the precedent to fit the specific case. Frivolous claims and allegations should never be included in pleadings because they confuse and clutter the issues, and deter one from reaching a swift and early conclusion to the true claims between the parties.

W

New Civil Rules

Chambers Application Supplemental Flowchart

1. Applications taking more than 2 hours:

- contact Supreme Court of BC Scheduling office and obtain available dates, - not mandatory but advisable - confer with opposing counsel as to their availability for the dates obtained from Scheduling office, and - when a date is decided upon, prepare your Notice of Application (Form 32) and proceed according to the flowchart.

2. Short Notice Applications:

- prepare the main Notice of Application (Form 32) and Affidavit; - prepare the Requisition (Form 17) - file the original Requisition (Form 31), Notice of Application and Affidavit and proceed to chambers - proceed according to the order(s) made by the judge or master pursuant to Rule 8-5(4) with respect to notice/service of the application materials

Specially designed charts and flowcharts designed tomake your work easier

Working with Self-Represented Litigants

More people are deciding to represent themselves in order to save on legal fees.Working with self-represented litigants, who often do not have the years of education, knowledge of the system, and experience in the field of law, requiresthe adoption of many best practices.

Any self-represented litigant may not understand that it is a conflict of interestfor you to act for them, as well as your own client. Once it is clear that a partyis acting on their own behalf, a letter should be sent confirming that you actonly for your client, that you cannot provide the self-represented litigant withany legal advice whatsoever, and that you cannot assist them with their case.You may also wish to suggest that they seek independent legal advice so thatthey understand what their rights and obligations are.

You may wish to provide a self-represented litigant with some resource information, such as the address for the Supreme Court’s website(www.courts.gov.bc.ca) and suggest they refer to that site for assistance. TheJustice Access Centre in Vancouver and Nanaimo (and soon in Victoria) providefree legal information through their Self Help and Information Services, and insome circumstances legal advice may be available. They may also be eligiblefor free legal advice through the Access Pro Bono Society of BC whose websitei

negotiations, mediation, arbitration.

A

A written record should be kept of exactly what each of you said,n

They may insist that all communications be made in writing by way of

l That way the written communications can later ber

Appendix L.2 Fast Track Litigation Flowchart

Step Process Rule

STEP 1 Issue Notice of Civil Claim pursuant to Rule 15-1, 15-1(1) & (2)The action must be for a value of $100,000 or less. Include the words Subject to Rule 15-1 under the style of proceedings

Or Determine after initial pleadings have been issued that proceeding is appropriate for Rule 15-1. File a Notice of Fast Track Action in Form 61.

STEP 2 Within 35 days after the end of the pleading period 7-1(1)prepare and serve a list of documents and copies of all documents on all parties of record.

S

by the p

The recent SupremeCourt of Canada rulingon Yukon Francophone

School Board, Education Area#23 v. Yukon (AttorneyGeneral), 2015 SCC 25 shedssome light on what the fineline is between impartialityand bias.

The case also looked at a cultural right: whether theschool board can unilaterallydecide to admit students whoare not covered by section 23of our Canadian Charter ofRights and Freedoms.

At trial, the courts consideredthe Yukon FrancophoneSchool Board, which is thefirst and only school board inthe Yukon. It has responsibilityfor one school, ÉcoleÉmilie‑Tremblay, aFrench‑language school founded in 1984. In 2009, the Board sued the Yukon government for what itclaimed were deficiencies inthe provision of minority language education. The trialjudge ruled in the Board’sfavour on most issues. Onappeal, the trial judge’s comments and acts and hisinvolvement as a governor of aphilanthropic francophone inAlberta led the Yukon Court ofAppeal to find that there was areasonable apprehension ofbias.

To determine if there was areasonable apprehension ofbias, the court relied on:

“what would an informed person, viewing the matterrealistically and practically —and having thought the matterthrough — conclude. Wouldhe think that it is more likelythan not that [the decision-maker], whether consciouslyor unconsciously, would not decide fairly. [Citationomitted; Committee forJustice and Liberty v.National Energy Board,[1978] 1 S.C.R. 369, at p.394, per de Grandpré J. (dissenting)]”

The court wanted to makesure that a reasonable andinformed person would see no just the reality, but theappearance of a fair adjudicative process as well.The issue of bias is linked tothe need for impartiality,which is linked to public con-fidence of our judicial system.

Judges are required — andexpected — to approach everycase with impartiality and anopen mind. Does this meanthat judge must have no priorconceptions, opinions or sen-sibilities? On the contrary, thecourt strongly encouragesjudges that:

3 C I V I L L I T I G A T I O N S T U D I E S

Judicial Impartiality: Balancing a Judge’s Cultural Experiences & Impartiality they are not required to abandon who they are or whatthey know. A judge’s identityand experiences are an important part of who he orshe is, and neither neutralitynor impartiality is inherentlycompromised by them. Judgesshould be encouraged to experience, learn and understand “life” — theirown and those whose livesreflect different realities. Theability to be open-minded isenhanced by such knowledgeand understanding.Impartiality thus demands not that a judge discount ordisregard his or her life experiences or identity, butthat he or she approach eachcase with an open mind, freefrom inappropriate and undueassumptions.

In its findings, the court citedthe Right Honourable GeraldFauteux, who put the mattersuccinctly and eloquently inLe livre du magistrat (translation):

[there is no intention] to placethe judiciary in an ivory towerand to require it to cut off allrelationship with organiza-tions which serve society.Judges are not expected tolive on the fringe of society ofwhich they are an importantpart. To do so would be con-trary to the effective exerciseof judicial power whichrequires exactly the oppositeapproach.

In the years to come, thecourts will continue to reflectclosely our cultural makeup.The courts have recognizedthat a judge’s identity wouldclose their judicial mind.L’Heureux-Dubé andMcLachlin JJ. in R. v. S.(R.D.), [1997] 3 S.C.R. 484,compellingly explained the

intersecting relationshipbetween a judge’s backgroundand the judicial role:

…multiracial and multicultural society willundoubtedly approach thetask of judging from their varied perspectives. They willcertainly have been shapedby, and have gained insight from, their differentexperiences, and cannot be expected to divorce them-selves from these experienceson the occasion of theirappointment to the bench. Infact, such a transformationwould deny society the benefitof the valuable knowledgegained by the judiciary whilethey were members of the Bar.As well, it would preclude theachievement of a diversity ofbackgrounds in the judiciary.The reasonable person doesnot expect that judges willfunction as neutral ciphers;however, the reasonable per-son does demand that judgesachieve impartiality in theirjudging.

Everyday, our courts hearcases involving persons whocome from different cultures;some come from countrieswhere their judicial processesare not exactly impartial.Some self-represented litigants who do not speakEnglish have concerns whenour judges speak to counsel.So what can judges do to dispel a possible perceptionthat there may be bias? Asofficers of the court, what canlawyers do to help theprocess? !

Join Dom Bautista andYvonne Choi when they pres-ent Civil Litigation 102 onJune 11 and 12, 2015. Theywill discuss the importance ofthe judiciary in maintainingthe rule of law.

B!201506

Trial PaperAvailable in 2 sizes:

Barrister 8.5” * 11” $100Judge 9.69” * 13.69” $110Judge’s Binder 1” $40Judge’s Binder 2” $45

Printed in red & blue onpremium archival paper, 500 sheets in a box

This two day program is designed for juniors to gain an understanding of the civillitigation process and its Rules. At the end of their studies, the attendees will be able

to put the theory into practice and they will have the tools to successfully assist in a civillitigation file from start to finish.

“The explanations made a difference. It is easier to have someone with

so much experience lay it all out rather than just reading the Rules.”

COURSE PREREQUISITEThere is pre-course work that will be assigned.

COURSE REPORTING FOR CPD

For those with CPD requirements, this course is 14.0 hours long with 1 hourdevoted to ethics, professional responsibility, ethics, client care and relations. If you meet 70% of the course expectations, a Certificate of Completion is issuedto you.

LOCATION Law Courts Center CPD Room 840 Howe St #150 Vancouver BC

INSTRUCTOR Yvonne Choi, Legal Assistant, Harris & Company LLP

RESERVATIONS Please complete the form below and return to: Law Courts Center,Legal Education Program, 150 - 840 Howe Street, Vancouver, BC V6Z 2L2.Make cheques payable to Law Courts Center.

For more information please email <[email protected]>, or call604-685-2727.

For junior lawyers, solos,paralegals and legal secretaries!

A TWO DAY COURSE: APRIL 16 AND 17, 2014 (9:00 AM TO 5:00 PM)

Law Courts Center

Civil Litigation 102

““Let me showyou how thedifferent parts ofcivil litigation areconnected! ”

Course Fees: (course materials and GST included) - Single Seat $924.00

- Multi-seat & Accredited Group Rate (Amici Curiae & Greater Vancouver Legal Nurse Consultant Association) $872.55

- Please send me a copy of the manual only as I am not able to attend. $246.75

Registration:

WWW.LAWCOURTSCENTER.COM

150-840 Howe Street, Vancouver, BC Canada V6Z 2L21410B!

www.lawcourtscenter.comLaw Courts Center150 - 840 Howe Street, Vancouver BC Canada V6Z 2L2 1502 B!

Law Courts Center

Civil Litigation 102

9:00 Introductions / Expectations9:15 Background and Applicable Legislation9:30 Rules / Notices to the Profession / Practice

Directions9:45 Provincial Court of BC /

Small Claims Court10:15 Coffee10:30 Pre-Action Considerations11:00 Limitation Periods11:15 Naming Parties11:30 Pleadings Generally

- NCC- Response- Reply

12:00 Lunch (on your own)12:45 Field Trip to the BC Court of Appeal

and Supreme Court of BC

1:15 – 1:45 Exercise – Drafting Pleadings

1:45 – 2:15 Amending Pleadings2:15 Service 2:30 Calculation of Time2:45 Coffee3:00 Exercise – Calculation of Time3:15 Discovery Procedures

- List of Documents- Examination for Discovery- Interrogatories- Notice to Admit- Witness Lists- Notice to Produce

4:15 Exercise – List of Documents4:45 Questions / Review Assignment / Reading

This is what will be doing on Day 1

This is what will be doing on Day 2

8:45 Provincial Court of BC Tour9:30 Applications Procedure10:00 Exercise – Application10:30 Coffee10:45 Document Collection and Management11:15 Pre-Trial Considerations11:30 Trial Preparation /

Trial Management Conference12:00 Case Planning Procedure12:15 Lunch (on your own)1:00 Alternatives to Trial Generally

1:15 Fast Track Procedures1:45 Review Exercise: Counting Time2:00 Offers to Settle and Mediation2:15 Orders Generally2:30 Coffee2:45 Orders – Consents / Chambers / Trial3:15 Exercise – Orders3:45 Costs and Tariff Items

(Appendices B & C)4:15 Review: Legal Jeopardy4:45 Questions / Review Assignment / Reading

Part 7 Benefits — A Primer

Administrating Part 7 Benefits isoften one of the key roles ofsupport staff in a personal

injury law firm. One of the keys tobeing able to interpret Part 7 is havingan understanding of the terms andwords used in Part 7.

Eligibility for Part 7 BenefitsIt is easier to identify the two maincategories of persons who may not beeligible for Part 7 benefits than it is toidentify those who may be eligible.These two categories are:

• someone who lives alone, doesnot own a vehicle, does not have avalid BC driver’s licence and isstruck by an out-of-provincevehicle (all of these must bepresent), and; • someone who is covered by theWorker’s Compensation Act and isperforming their occupation at thetime of the accident (please notethis is slightly more complicated inthat both parties [the drivers of bothvehicles] must be performing theiremployment at the time of theaccident).

Eligibility for TTD BenefitsA person is eligible to apply for TTDbenefits if, on the day of the accident,they are either an “employed” personor a “homemaker”.

1. An “employed” person is someonewho:

• is actively employed or activelyengaged in an occupation for profitat the time of the accident, or; • has been employed or activelyengaged in an occupation for profitin any 6 months during the 12months immediately prior to thedate of the accident.

2. A “homemaker” is any member of ahousehold who does the majority of thehousekeeping without receivingpayment for same. TTD benefits forhomemakers are a maximum of

$145.00 per week and are paid only forreasonable expenses incurred to hire aperson to perform the homemaker’schores. The person hired must not be amember of the homemaker’s family.

Total DisabilityTotal disability does not mean that theclient is in Intensive Care at thehospital. It means that the client is substantially unable to do the acts orduties required in their employment oroccupation. In the case of a homemaker, they must be unable tosubstantially do the housekeepingcustomarily done by the client.

RehabilitationRehabilitation is “the restoration, in theshortest practical time, of an injuredperson to the highest level of gainfulemployment or self-sufficiency that,allowing for the permanent effects ofhis injury is, with medical andvocational assistance, reasonablyachievable by him.” (Regs. S. 78).

Mandatory Payments:ICBC must pay all reasonable expensesin the following categories:

• Medical• Surgical • Dental• Hospital• Ambulance • Professional nursing services• Physical therapy (to a maximum of 12 visits without specific medical recommendation for extension)

• Chiropractic treatment • Occupational therapy • Speech therapy • Prosthesis • Orthosis

Permissive PaymentsICBC may pay for other treatments oritems not listed above on therecommendation of a medical advisorretained by ICBC to provide an

opinion. The recommendation of themedical advisor must state that theprovision of such a benefit is likely topromote the rehabilitation of theclaimant. Often the recommendation ofa treating specialist is sufficient. Somepermissive benefits may be:

• The purchase of one motor vehicle equipped as necessary. ICBC will allow one vehicle in the lifetime of the client.

• Construction costs to alter the residence of the client. Again once only.

• Attendant care is usually authorized for a specific, short time frame and limited to the lesser of either attendant care or the monthly cost of a group home.

• A wheelchair • Medical bed • Bowel and bladder equipment • Aids for communication, such as a computer

• Other aids for dressing,eating,grooming and hygiene • Transfer equipment • A ventilator • Vocational training

Most “permissive” benefits aredesigned for very seriously injuredpersons. These benefits are approvedand paid on a case by case basis.

Remember, if your client’s physicianrecommends extending physiotherapyor adding massage therapy or apsychological counsellor to theirtreatment plan, that request must comefrom the physician in writing. At anytime during the rehabilitation processICBC has the right to require yourclient to attend an “IndependentMedical Examination” (IME) for thepurpose of providing ICBC with anopinion on the rehabilitationrequirements of the client. Theperimeters of an IME in the tort actionare very different from those in the Part7 claim. ! Reprinted from Briefly!

WWW.LAWCOURTSCENTER.COM150-840 Howe Street, Vancouver, BC Canada V6Z 2L2

This course will provide you with an understanding and a hands on practice in identifying the

difference between Part 7 benefits and special damages and in calculating Total Temporary

Disability (TTD) benefits.

At the end of your studies, you should be able to correctly:

1. Determine what documents must be submitted to perfect an application for Part 7 accident benefits.2. Describe how you calculate the limitation date for a claim for Part 7 benefits?3. Explain why is it inappropriate to combine a Part 7 claim and a tort claim in the same action?4. Calculate how many weeks are Employment Insurance benefits payable before TTD benefits aretriggered? 5. Determine who is eligible to receive "homemaker's" benefits and how much is payable weekly for thisPart 7 benefit?6. Clearly explain to a client what their Part 7 benefits are.

CONTINUING PROFESSIONAL DEVELOPMENT CPD REPORTING

For your mandatory reporting of CPD hours, this course is 7.0 hours with 1.0 hour devoted to professionalresponsibility and ethics. A Certificate of Completion is issued to you, if you earn at least 70% of the course requisites.

LOCATION Law Courts Center CPD Room, 150 - 840 Howe Street, Vancouver, BC V6Z 2L2. INSTRUCTOR Gerrie Campbell, Senior Paralegal

QUESTIONS? Please write [email protected] or call 604-685-2727.

Registration:WWW.LAWCOURTSCENTER.COM

Course Fees: (course materials and GST 128573300 included) q Single In-Person Seat $548.80

q Multi-seat or Amici Curiae Rate $521.36


1505 B!

SCHEDULE FOR JUNE 29, 2015 (9:00 AM TO 5:00 PM)Law Courts Center • Canadian Paralegal Institute

Part 7 Benefits 101


Judicial Interpretation: Managing Privilege When Listing Documents

Law Courts Center150 - 840 Howe Street, Vancouver BC Canada V6Z 2L2 1506 B!

Parties have ongoing obligations todisclose documents over which aclaim of privilege is made. As

such, there is a natural tension betweenlisting documents protected bylitigation privilege in a manneradequate to inform the recipient of thelist of the nature of the privilege, andnot providing so much detail as to losethe privilege. In short, how much detailis considered enough?

What do our courts say? They appear togive conflicting messages. There aretwo BC Court of Appeal cases thatcome to mind: Dykeman v Porohowskiand Cahoon v. Brideaux.

In this case brief, we examine the caseof Dykeman v Porohowski and whetherthe documents as listed had beenimproperly admitted into evidence ornot. In our next case brief, we will takea look at Cahoon which involveddocuments generated by the party whowas to be cross-examined on them.

In Dykeman v Porohowski, 2010 BCCA36 (CanLII), the appellant in this actionsought to appeal the quantum ofdamages awarded by the jury in thepreceding Supreme Court of BritishColumbia decision. The appellant hadbeen injured in two separate motorvehicle accidents involving therespondents.

At trial, the appellant’s credibility wasan issue. The defence counsel took theposition that there was a lack ofobjective medical proof to support theappellant’s claim of injuries; thedoctors’ evidence and diagnoses werebased primarily on subjective reports.The defence counsel also argued thatthe appellant’s claims of lost careeropportunity and lost income earnedfrom her show jumping career weregreatly exaggerated. Moreover, theappellant’s claims were contradicted by other evidence, such as Internetpostings on which she was cross-examined.

At trial, the damage claim included outof pocket expenses of $94, 788.21,future cost of care expenses of $476,817, and past and future wage lossesranging between $1,205,192 and$3,796, 811. The appellant also madean “in-trust claim” with respect tolosses her parents incurred as a result ofthe appellant’s injuries from theaccident and inability to work. The juryawarded the appellant a total of$44,000- $15,000 for non-pecuniarydamages, $5,000 for special damages,$4,4000 for lost income, $22,000 forfuture care costs and nil for the in-trustclaim.

The appellant sought to appeal thedamage awards based on fourarguments. The appellant’s firstargument was that the jury’s verdict fornon-pecuniary damages of $15,000 wasinconsistent with the future care awardof $22,000 and argued that the twoamounts should be more similar invalue, as seen in other cases. The Courtof Appeal noted that the evidenceadduced at trial was extremelycontroversial, including conflictingmedical opinions on the seriousness ofthe appellant’s injuries and thecredibility of the appellant. Moreover,there was nothing in the evidence attrial that showed that non-pecuniaryand future care costs should have beendecided together and using the sameweight on all the evidence presented. Inconclusion, the Court of Appeal foundthat the jury was free to grant thedamage rewards as it deemedappropriate under all the circumstancesand the appeal should not be allowedon this ground.

The appellant’s second argument wasthat the trial judge erred in allowing thedefence counsel to make an adverseinference to the jury by inferring thatthe appellant’s claim should bedismissed because of her reasoning inproviding a lack of evidence. TheCourt of Appeal found that the defencecounsel’s argument was presented to

show the weaknesses of what evidencethe appellant had adduced, and not toinfer why other evidence was notprovided. The Court of Appeal alsonoted that the defence counsel wasobligated to provide flaws in theappellant’s argument to the jury andweaken the appellant’s evidence andcredibility. The defence counsel’sstatements did not amount to aninvitation of an adverse inference andwas not prejudicial to the appellant. TheCourt of Appeal did not accede to thisground of appeal.

The appellant’s third argument was thatthe trial judge erred in refusing to put tothe jury the “in-trust” claim for thelosses and labour incurred by theappellant’s parents as a result of theappellant’s injuries. The trial judgefound that the appellant’s injury werenot grievous, the services provided byher parents were not above and beyondwhat would be expected from familymembers, and the services were notpersonal or household services butrather business services. The Court ofAppeal disagreed with the trial judgeand noted that “in-trust” claims do nothave to involve grievous injuries andthat it is up to the jury to decidewhether the services provided by thefamily were above and beyond whatwould have been expected. Moreover,parties can make claims on behalf offamily members assisting them infamily enterprises and in householdduties, not just businesses services. The Court of Appeal found that therewas sufficient evidence to prove an “in-trust” claim to the jury and the appealwas allowed on this ground. !

Join Dom Bautista and GerrieCampbell when they present List ofDocuments 201 on August 6 2015. Domwas assisted by Natashia Liedkte-Thompson a third year CapilanoUniversity Legal Studies Degreestudent. This article concludes nextmonth.

Law Courts Center150 - 840 Howe Street, Vancouver BC Canada V6Z 2L2 1506 B!

REGISTER ONLINE:

www.lawcourtscenter.com

REGISTRATION (INCLUDES GST #128573300)

q Single Seat $548.80

q Multi-seat or Group Rate for members of Amici Curiae $521.36


For junior lawyers, solos,paralegals and legal secretaries!

SCHEDULE FOR THURSDAY AUGUST 6, 2015 (9:00 AM TO 5:00 PM)Law Courts Center • Canadian Paralegal Institute

List of Documents 201IMPROVING YOUR ABILITY TO PREPARE LISTS OF DOCUMENTS PURSUANT TO RULE 7-1

“Relying on case law,let us examine theinevitable tension thatexists when listingdocuments!”

We are all aware of the requirements of R. 7-1 regarding production of relevant documents in that they must havebeen in a party's “possession or control” to be producible. nd whether or not the documents can prove or disprovea material fact. In a sense, Rule 7-1 now provides for a two-tier disclosure process and that duty ultimately fallsto counsel and not with the client. But what does this actually mean and where does one begin?

At the completion of this course, the student will be able to:o understand the difference between records in a party's “possession”, “control” and “power”;o list and describe non-traditioinal documents such as maps, photographs, diagrams, etc.;o prepare an affidavit verifying a list of documents;o understand and apply the various grounds of privilege;o effectively redact privileged and irrelevant material from documents;o list documents from which redactions have been made;o prepare an Affidavit supporting the redaction ofinformation from a document; and

o describe the various ways in which irrelevant informationin documents can be redacted.

COURSE PREREQUISITE

There is pre-course work that will be assigned.

COURSE REPORTING FOR CPDThe Law Society has pre-approved 7.0 course hours towards your Continuing Professional Development requirements. In addition, a Certificate of Completion is given to you if you receive a minimum of 70% in the course.

LOCATION Law Courts Center CPD Room 840 Howe St, Vancouver BC V6Z2L2

INSTRUCTOR Gerrie Campbell, Senior Paralegal

For more information please email <[email protected]>, or call 604-685-2727.

Legal Education

Trial Brief Preparation

Legal Printing & Legal Supplies

legalpresents.com

Briefly! is intended to provide information on new developmentsin litigation and lawpractice management.

For information,contact Dom Bautistaat 604.685.2727 or [email protected]

Law CourtsCenter840 Howe ST #150Vancouver V6Z 2L2

4 S T U D I E S I N D I V E R S I T Y

The Honourable MadamJustice Neena Sharmaof the Supreme Court

of British Columbia was thethird Canadian judge to speaklast February 19 2015 on theirviews on gender and culturaldiversity. She concluded theevening with her insights inbeing appointed to the bench.Her appointment was notablebecause she is of South Asianheritage. She believes that wehave reason to be optimisticfor women and culture withinthe boundaries of the justicesystem. She conveyed thatfour women have beenappointed to the highest courtin the country, the SupremeCourt of Canada, and of the107 judges in the BritishColumbia Supreme Court, 38of them are women, and theBritish Columbia Court ofAppeal has 9 of 20 judges whoare women. It does seem asthough this has been increas-ing over recent years and thatequality is increasing in ourcountry.

Earlier that evening, theHonourable Madam JusticeMaryka Omatsu of the OntarioCourt of Justice had spokenearlier about Equality forRacialized Lawyers: aChallenge for the Profession.She observed that we havebecome much more progres-

to changes. We too, therefore,need to acknowledge and regulate our (sometimes) auto-matic instincts to allow for theintegration of variation.Common law takes on a fluidi-ty in its nature, which has inand of itself led to changeswithin society, and oftentimesthose changes rise in the faceof opposition from the com-munity. It proves that we arecapable of change, whether ornot we are open to it.Examples to this given by Justice Sharma revealedprohibition, abortion, the deathpenalty, abortion, and morerecently, same-sex marriages. Disagreement ornot, these changes show thatwe can respect each other evenwhile in disagreement – this isa mature and valuable way togrow as a country, valuingeach other with the inclusionof our cultural backgrounds and gender.

Throughout the course of theevening, it became clear thatthe issue of “diversity” as per-ceived by most law firms andpublic interest endeavours, hasgenerally referred to genderdiversity. The presence ofracialized judges, however,serves as a reminder that thefight for full inclusion ofdiversity goes well beyond theissue of gender. Granted, gen-der equality is probably theforemost component of thediversity issue at present, butperhaps symbolizes low-hang-ing fruit. After all, it is onlywhen gender equality is con-sidered to be the standard, andnot the goal of diversityendeavours that true progresscan be made with respect toother groups patiently awaitinggreater representation includ-ing the LGBQT, the racialized,and as one participant insight-fully noted, those who appear

sive in our perception of thesedifferences, and offered opti-mism and pride in how muchwe have embraced each otherand ourselves. She reflectedthat there was much more wecan go, and indeed, how muchmore we have to fight to inte-grate and dispel the somewhatautomatic attitudes we havetowards the differences inother people.

Provincial Court of BCAssociate Chief Judge NancyPhillips then spoke about theThe Imperative of CulturalAwareness. She also encour-aged the audience by saying“Cultural competency requiresawareness, and a commitmentto try and understand the par-ties and to help them under-stand our justice system.”

Justice Sharma observes thatin her own courtrooms, she isseeing a balance in the genderof litigators, with the excep-tion of high profile cases orfiles that are ‘big-money’.She queries whether thisshould warrant further examination about why malestypically lead on those typesof files.

She asks whether society, andwhether firms in general, arerecognizing these patterns.“We are evolving into well-informed individuals andcommunities who continuallydiscover that gender and raceare issues in which we areaware. Even if we are unableto make drastic changes inother people, our own atti-tudes need to be adjusted toallow for diversity.” JusticeSharma even goes further todraw a parallel between thenature of common law itself:the inherent quality of com-mon law is that it is adaptable

3 Judicial Views: On Gender and Cultural Diversity Part 3

B! 201506

to be ubiquitous and main-stream but are not actually,such as Jewish and fair-skinned individuals.

Still it was much to reflect on.

On page 3, you might want toread a case of interest aSupreme Court of Canadadecision last May 14, 2015, inYukon Francophone SchoolBoard, Education Area #23 v.Yukon (Attorney General),2015 SCC 25, that shedssome light on what the fineline is between impartialityand bias. !

The recorded version of thislecture is available. DomBautista is now preparing for the June 2 lecture: Does culture colourthe courts? Stacie Gin, parale-gal at Heritage Law assistedhim in writing this article.

Law Courts Center Desk Reference Manual Price List.xlshttp://tinyurl.com/lccpublications

Current to: 7/15/14

Title Code Last Updated PriceBC Civil Litigation Guide v9.0 BCCLG 140625 750Bills of Costs 101 BOC 101 130701 225Business Corporations Act 101 BCA 101 130808 225Case Planning Procedures CAP 102 120108 225Chambers Application Procedures CHA 101 140801 225Civil Litigation 102 CIV 102 131122 225Clinical Records 101 CRS 101 131203 225Conveyancing 101 CON 101 130701 225Discovery Procedures 101 DIS 101 130601 225Document Disclosure 101 DOD 101 130531 225Drafting Applications Workbook DAW 101 140801 225Family Chambers Applications Procedures 101FCAP 102 140331 225Family Law 102 FAM 102 225Fast Track Litigation FTL 101 110421 225Heads of Damages 101 HOD 101 130415 225Law Office Management 101 LOM 101 111201 225List of Documents 201 LOD 201 120500 225Litigation Practice Basics 101 LPB 101 140901Litigation Project Management 301 LPM 301 140624 100Managing MVA Files 103 MVA 103 140125 225Part 7 Benefits 101 P7B 101 140501 225Personal Injury Book of Letters PIBL 120500 225Personal Injury Studies 201 PIS 201 130601 225Pleadings 101 PLE 101 120430 225PST & GST FAQs for BC Law Firms 140901 150Return to GST for BC Law Firms Recorded Lecture RecordingGST 102v 130228 125Trial Preparation for Defence Firms TPD 101 120500 225Trial Preparation for Family Law 101 TPF 101 130601 225Trial Preparation for Plaintiff Firms TPP 101 101115 225Trust Accounting 101 TRA 101 101028 225Trust Assurance Management Recorded Lecture Handling Unclaimed Trust FundsTAM 10v 120329 125Trust Assurance Management Recorded Lecture Trust Accounting Internal ControlsTam 102v 130712 125Trust Assurance Seminar Recording TAS 102v 130328 300