Published by Law Courts Center and the Canadian Paralegal Institute NOVEMBER 2012

It is not a secret – thatchange is afoot.Alternative business

structures are not just anidea. The question is how fastwill the change come. Here.

At the October 26, 2012benchers’ meeting, they welcomed Mr. SimonChester, QC who spoke tothem about the regulatorychallenges of new structuresfor delivering legal services,specifically describing thedevelopments in ABS in theUK.

Last February 2012, theFinancial Times reported thatat least a third of the UK’stop 40 law firms are lookingto take advantage of the ABS rules by joining with a non-legal practice in thenext two years due to thederegulation. These new liberalized rules, nicknamedthe Tesco Law, now allowconsumers to book appoint-ments for legal matters whileshopping for their groceries.While the Tesco chain hasnot gone into it yet, theCooperative, with an annualsales of £13.3 billion from itsnetwork of 5000 stores, hasaimed to be the consumerlaw of choice in the UK.Along with its funeral services, it now providesservices in wills drafting,probate, personal injury, family, conveyancing andemployment law.

Last September 20, theybegan offering fixed feefamily law services.

Should Safeway begin tooffer the same services, howwill it affect solo practices?Will the regional and national firms be insulated?

Some of you might say …. It will never happen here inBC. Really?

Our new Legal ProfessionAmendment Act appears tohave considered ABS by theexpansive way it defined alaw firm. So it seems that itis our law society, while having already approved multi-disciplinary practices,that have thus far taken acautious wait and see position preventing ABSfrom taking place in BC. Todate, despite several MDPapplications, no firm hasbeen approved by the lawsociety.

Chester ended his remarks tothe benchers by saying: your report last October recommended a wait and seeposition … the game is afoot,it is still extremely earlydays, continue monitoringthe developments in the 6month old experiment that isgoing on in the UK.

So should the benchers continue to wait it out? Itappears to be the safe thing

to do, unless the marketplaceintervenes.

The interesting thing about the innovative practices internationally is that theyhave a distinct Canadianthumbprint. Ontario solicitorMichael Carabash has hadhis automated Will-o-maticservice not only in Ontariobut in BC for sometime now.Making use of daily dealwebsites like Living Socialand Groupon. In the UK,daily deal websites offer hiswill-writing services for £19.

When technology drivesservice delivery and pricingeven notaries will find it hardto compete.

Meanwhile, on the other sideof the Fraser River, the BCLegal ManagementAssociation was also hostingits biennial conference, aptlytitled: Change: embrace,integrate, manage. Havingrecognized the tumultuouswaves of change that arepounding on their respective

firms, BCLMA decided totake a proactive approach.The delegates listened to Mr. Jim Bottomley discusshow to change law firmsfrom within to respond to thechanges coming from theoutside. Of the several strategies that he recommended, what resonated to many of the delegates was his suggestion that for firms tosurvive, they should considerbecoming specialists.

Heeding him will profound-ly affect access to justice.What will happen to lawyerswho practice in rural areas?

Michael Short, their finalkeynote speaker describedhow law firms should tackle and embrace change, reflecting on the challengesthat senior partners present,the realities of the market-place that are the antithesisof established practices. Hedescribed in detail the

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w w w . l a w c o u r t s c e n t e r . c o m

www.canadianparalegal inst i tute.com

November 27 Medico-Legal Terminologies 101November 29 Drafting Applications Workshop 101December 1 Trial Preparation for Plaintiff Firms 101December 11 Law Office Management 101January 12 Part 7 Benefits 101January 19 Managing MVA Files Effectively 103January 26 Family Chamber Applications Procedures 101

Are Changes Afoot in the Ownership Rules for BC Law Firms?

Black’s Law Dictionarydefines “affidavit” as “A written or printed

declaration or statement offacts, made voluntarily, andconfirmed by the oath or affirmation of the party making it, taken before anofficer having authority toadminister such oath.” Soundssimple enough, right? It canbe. But what if you have a complicated and convolutedset of facts that jumps backwards and forward in itstimeline? What do youinclude and what do you leaveout? Isn’t it all important insome way?

As with every piece of writing, legal or otherwise, an important first step is toidentify your audience. Thiswill assist in determining howmuch information is put intothe affidavit and which piecesof information or documentswill be helpful to the application. In this case, your audience is the deponent,opposing counsel and ultimately, the judge or masterthat will be reviewing the affidavit in conjunction withthe petition or application.

Once you have established

who will be reading the affidavit, you need to be ableto convey the facts of the casethat relate to the affidavit in away that is clear and concise.This may require a chronological regurgitation ofseveral factual elements ofthe case, the appending ofdocuments to the affidavititself, or both, depending onwho the deponent is and howmuch personal knowledgethey have of the matter. Forexample, in a personal injurymatter, if the applicationbeing made is for productionof a doctor’s clinical records,it will be important to includein the affidavit what attemptswere made to request therecords, including how manyattempts were made and whatthe methods used to obtainthe records were. If you madeone phone call and sent one email over a six monthperiod, it may not be as convincing to a master togrant an order to produce the doctor’s records as if you hadsent four reminder letters andleft voicemails each week inthe same period of time. It isimportant to recount the stepsthat were taken to obtain therecords, and, in this example,to attach as exhibits to the

2 C I V I L L I T I G A T I O N S K I L L S

Drafting Affidavits: Just the Relevant Facts

Judicial Interpretation on Costs Rule 14-1

Are ChangesAfoot in theOwnershipRules for BCLaw Firms?

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affidavit the letters that weresent to the doctor, which willgive leverage to the facts stated in the affidavit. While the deponent may know thefacts contained in the affi-davit well, opposing counseland the judge likely do not.

There may also be numerousfacts that could be consideredrelevant to the matter in general, but may not bedirectly related to the facts of the affidavit. For example,if the application to be madeis to renew a certificate ofjudgment, it might not benecessary to include in thesupporting affidavit howmany initial attempts weremade to serve the originatingpleading, or report how manyreceipts went unpaid before aclaim of builders’ lien wasfiled.

Perhaps the saying should be amended to, “Just the relevant facts, please.” !

Mayette Ostonal will be facilitating a workshop indrafting applications onNovember 29, 2012. She is aparalegal at MacKenzieFujisawa LLP.

(continued from page 1)perspective of newly-hired associates and support staffand their expectation for life work balance andsophisticated clients whonow habitually evaluate thevalue they are getting fromtheir legal advisors.

He cautioned the audiencethat one of the worse thingslawyers can do is to commoditize their practice,something that Chester had referred to in his presentation to the benchers … the effect of the deregulation of the legal profession both in the UKand Australia was intendedto provide consumers with astronger hand …. which iswhat commoditization is allabout. Regardless of size, forlaw firms to do well, theyneed to cognizant of theeffects of globalization, tech-nology and market forces.

Change, as Bottomleyastutely observed, is not necessarily a bad thing …with change comes manyopportunities but firms needto develop a compellingvision.

Two distinct stakeholders.Two distinct strategies. !

Dom Bautista will be joinedby Lisa Dawson of KornfeldLLP to facilitate the discus-sion of these issues in LawOffice Management 101 onDecember 11, 2012.

(continued from page 3)Salad Company Inc. v.Canadian Food InspectionAgency, 2011 BCSC 1558.The court found the defen-dants’ conduct merited anaward of special costs forallegations made in aresponding applicationwhich called into questionthe professionalism andintegrity of plaintiff’s

counsel. In the court’s view those allegations wereespecially damaging to “ayoung counsel making herway in the profession andattempting to build a careeron the strength of her professional competence andreputation” (para. 21).

Furthermore, it was not nec-essary that the allegations be

as serious as alleging fraud,criminal conduct, or unpro-fessional conduct such asbreach of an undertaking,before an award of specialcosts is justified (para. 30). !

Roxanne Fonagy presents Bills of Costs 101 onNovember 24, 2012. She is asenior paralegal at Doig &Associates.

The usual rule is thatcosts follow the eventand are awarded to

the successful litigant. Thisprinciple was recentlyreviewed by the Court ofAppeal in Giles v.Westminster Savings CreditUnion (2010), 5 B.C.L.R.(5th) 252, 89 C.P.C. (6th) 41,2010 BCCA 282 (CanLII), a multi-party commercial litigation case. The trialjudge’s order with respect tocosts was that each plaintiffwas to pay a “per capita”share of a substantial portionof the costs on a several liability basis. The plaintiff’sappealed the order submittingthey should not be made topay costs as they were unsophisticated investorswho could not afford to paycosts, and that ordering themto do so would “raise seriousconcerns about access to justice”. Whereas the defendants cross-appealedsaying that the plaintiffs’ liability for costs should bejoint and several.

Writing on behalf of theappellate court, JusticeFrankel found nothing tosupport the contentions of the plaintiffs which wouldwarrant disturbing the trialjudge’s decision to apply the usual rule that successfullitigants are entitled to costs.However, in the case of thedefendants’ cross-appeal, heconsidered the question ofwhether the trial judge properly exercised his discretion to depart from the“usual rule” in multi-partylitigation that unsuccessfulplaintiffs are liable for costson a joint and several basis.In his reasons, he noted at

para. 94 that the purpose of party and party costs is to partially indemnify suc-cessful litigants, particularlysuccessful defendants whoare drawn into litigation andare required to respond toclaims brought against them.In allowing the defendants’cross appeal, he reasonedthose defendants should beable to recover costs award-ed to them as effectively,efficiently and economicallyas possible and should notincur additional non-recover-able expenses to obtain thecosts awarded to them.

This case is interesting in that the appellate court appears to grant successful defendants greater status among suc-cessful litigants entitled tocosts. In following this rea-soning will the lower courtsbe less inclined to exercisetheir discretion in matters of costs in cases wheredefendants are successful?

The area of special costs hashad some developmentssince changes to the Rules ofCourt. Under the formerRule 57(13), the court hadinherent jurisdiction to fixcosts and disbursements in alump sum amount. The viewas set out by the Court ofAppeal in Graham v. MooreEstate, 2003 BCCA 497 atpara 46 was that a judge hadauthority to determine thequantum of the award ofspecial costs where it avoid-ed burdening “the partieswith the task of acquaintingthe Registrar with the com-plexities of the case”. But,the jurisdiction was to beexercised sparingly. In a

later case, the Court ofAppeal in Buchan v. MossManagement Inc., 2010BCCA 393 confirmed that ajudge has inherent jurisdic-tion to summarily determinethe amount of special costsin cases which are lengthyand complex, where the trialjudge is particularly familiarwith the matter.

Supreme Court Civil Rules14-1(1) and (15) now provide explicit jurisdictionto the court to award lumpsum costs and to fix theamount of those costsincluding disbursements. InMayer v. OsborneContracting Ltd., 2011BCSC 914, Justice Walkerreviewed the law regardingsummary assessments ofspecial costs, and noted the change in the court’sjurisdiction under Rule 14-1(15). He was of theopinion that given the length and complexity of theapplications and hearing inthis breach of trust matter, it was appropriate that hesummarily assess the amountof special costs.

When deciding upon themethod of assessing thelump sum award for specialcosts, Justice Walker inMayer at para. 101 reviewedthree approaches describedby Chief Justice Bauman inBuchan:(a) actual legal costs;(b) a percentage of actu-al legal costs (often 80%to 90% of actual fees)(c) $5000 per day, plusdisbursements and taxes,also known as the“rough and readyapproach”.

Judicial Interpretation on Costs Rule 14-1 He further noted that the“rough and ready” approachhad been adopted inInterclaim Holdings Limitedv. Down, 2002 BCCA 632and Morriss v. PrismProperties Inc., 2011 BCSC615. In deciding upon the“rough and ready approach”,he stated this approachreflects the significantamount of work required to review each applicant’sposition, the complexity of the issues and saves theparties’ costs in having toattend for further hearing orbefore the registrar.

The Mayer case provides areview of the law on specialcosts and summarizes thevarious circumstances under which these would beawarded. Justice Walkerstated that generally specialcosts are awarded to penalizea litigant for “reprehensibleconduct” (para. 8). Hedetermined the plaintiff’sconduct in the litigation wasreprehensible and worthy of penalty for pursuing ameritless claim whichincluded baseless allegationsof dishonesty and seriousprofessional misconductagainst a person.

Justice Greyell’s reasons inChen v. Beltran, 2011 BCSC41 are noteworthy. He statedat paras. 56 and 57, “theimportance of civility in thepractice of law cannot beoverstated …. Unsupportedallegations that opposingcounsel has failed in his ethical duty to the Court aredeserving of censure”. Thiscase was referred to by theCourt in The Los Angeles

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3 C O U R T W A T C H

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4 P A R A L E G A L & S U P P O R T S T A F F C O N F E R E N C E

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Our panel getting ready to provide a six minute lecture each!

Debating the constitutionality of court fees: judgesSharon Matthews and Geoff Plant QC, Dom Bautista,debaters Wendy Matthews and Charlene Andrew.

Ministry of Justice counsel Michelle Kinney relaxing after her plenary address and leading a family law workshop.

Supreme Court of BC Master Douglas Baker setting out thecourts’ expectations from paralegals.

Supreme Court of BCJustice Nathan Smith returnsto the podium to continuehis conversation with paralegals on court rules.

Ministry of Justice AssistantDeputy Minister JayChalke, QC discussing thethinking behind the CivilResolution Tribunal Act.

Ministry of Justice counselTyler Nyvall explaining thenew Legal ProfessionAmendment Act.

Law Society of BC Vice-President Art Vertlieb, QC having justdelivered his speech on the expanded role the role of paralegals.

Conference pictures can be found in CPI’s FaceBook page.