Newsletter of the Canadian Bar Association (BC Branch)

December 1996

Vol. 8 • No.6

INSIDE President's Message ...... 2

Section Talk ................. ... 3

New Chief Justice speaks on court reform ... .......... 8

Registry Questions & Answers ......................... 10

Student researchers available .......................... 13

Justice reform in China .............................. 14

Much ado about ADR but where's the work! ...... 16

Practice Talk ................. 17

Legislative Update ........ 21

BC Branch honours members ............. ..... ...... 24

Outside the Lower Mainland in BC call us TOLL FREE:

!1·888·687 ·3404

A MEMBER'S OPEN LETTER TO STEPHEN OWEN, Q.C.

Why wasn't the Bar consulted on proposed courthouse closures? Reforms will likely cause more problems than they'll solve

Editor's Note: The following letter was written to the Deputy Attorney General after Attorney General Ujjal Dosanjh announced a major re-structuring of his Ministry on November 13, 1996. Other areas of the province are also likely to be affected by these

The proposed closure of the Richmond Courthouse and movement of the criminal courts to Robson Square in Vancouver serves as a good example. There may be a small financial savings in terms of lease costs for premises in Richmond

changes. We need to hear from you about how they will affect your practice and community. Dear Mr. Owen: Further to Attorney General Dosanjh's

"The members of the Vancouver Criminal Justice Section strongly urge the Minister and the Ministry to reconsider the proposed closures."

and using vacant courtrooms at Robson Square. However, the actual hidden costs of having to transfer people back and forth,

announcement of closures of courthouses in West Vancouver, Richmond and Langley, I feel compelled to write at this time to express my great concern that such a step has been taken with little or no consultation or input from the members of the criminal bar who practice in these jurisdictions.

The matter of the closures of these courts was discussed at the Vancouver Criminal Justice Section's monthly meeting which was held November 20, 1996. Those in attendance at the meeting did express great concern over the hidden costs that may well outweigh and surpass the actual projected annual savings for the closures of each of these courthouses. While we appreciate that in difficult economic times physical restraint is necessary, illusory cost­savings such as those genera ted by the proposed closures, in the end, serve no purpose and most likely will create more problems than what they were envisioned to remedy.

paper and administ­rative costs skyrocketing, and the likelihood of files and witnesses going astray between the jurisdiction of Richmond and Vancouver all present enormous costs to the administration of criminal justice.

By closing the Richmond Provincial courthouse, as well as the Langley and West Vancouver Provincial courthouses, those communities affected by these closures will have their ability to access community justice and access justice generally, sharply curtailed. If we take the closure of the Richmond Provincial courthouse as an example, again, and its relocation to Robson Square, we foresee great problems for the Crown in being able to have their witnesses attend trials in Vancouver. As well, those witnesses who do actually attend may well become frustrated and leave when they cannot locate convenient parking or have to deal with the traffic in the city. Similar concerns

Continued on page 6

PRESIDENT'S MESSAGE

EMILY REID, Q .C.,

CBA (BC Branch) President

1996/97

2

There is good reason to feel anxious The government is not listening

hy are so many lawyers, including me, worried about the future direction of the justice system in om province? We are practising in a time of

uncertainty and change. For example, "No Fault" insurance is said to be under consideration and legal aid is a ticking time bomb. Recently, the Attorney General announced changes to the

These practical conunents relate to the reality of how the system runs, not to the self-interests of lawyers.

In an era where governments everywhere have to do more with less-and still get elected-it makes sense for them to make the best choices possible. But the only way to do that is to take advantage of the best information and expertise available. This means consulting with the Bar. As

justice system, including closing down the West Vancouver and Langley courthouses, and moving the Richmond court's criminal matters into Vancouver.

These are drastic measures. Will they cause more problems than they solve? Kate Ker' s letter to the Ministry of the Attorney General on the closures of those

"We think the government is also in danger of making a serious mistake with auto insurance in this province.The rumours about No Fault insurance won't go away. Why not? Because the illusion of easy cost-savings remains."

Ms.Kerpointsout, it is all too possible that the govern­ment will incur more costs with these changes than savings.

We think the government is also

L...--------------------1 in danger of mak­courthouses is reproduced here on page one. ing a serious mistake with auto insurance in this She writes that there was very sketchy province.TherumoursaboutNoFaultinsurance consultation with members of the Bar practising won't go away. Why not? Because the illusion of in those jurisdictions. easy cost-savings remains. I am reminded of those

Some members ofthe Bar and the Law Society cartoons where, dming moments of moral crisis in were involved in a consultation with the thelifeofSylvestertheCat,anangelwouldperch government where we discussed ways to ononeshoulderandadevilontheother,whisper-streamline the system, looking at the family, ingtheirrespectiveadviceintoSylvester'srespec-civil and criminal paths. Practitioners in those tive ears. In the case of this government, the dia-areas gave their comments. However, when the logue between these twohasnotyet been resolved. Attorney General atmounced the plans for We could help. We've been seeking meetings change to the public, I was smprised to hear forseveralmonthsnowwiththeFinanceMinister how sudden and far-reaching they would be. I who needs, more than ever, good ideas on how to thought that the closures of courthouses was save money. We believe that court reforms, as something that might possibly occur several recommendedbytheCBANationalTaskForceon years down the road, as a possible (indeed, Systems of Civil Justice, could help the govern­unlikely) result of reforms, not as a precursor to ment build an improved justice system. These them. reforms would allow us to preserve what's best

It is easy for governments to dismiss about our current system while still permitting "stakeholders" who are said to have a selfish citizens of this province to enjoy access to the court interest in the outcome of a plan. But consider system when they are victims of an automobile Ms. Ker's points on hidden costs to the system: crash.

"The movements on an in-custody prisoner, We are willing to take our part in shaping the again, create enormous problems in terms of futmeinjusticesystemofBritishColurnbia.Butcan paperwork in the registry, sheriffs to transport om good will last indefinitely? We deserve to be them, booking in and booking out of various heard. lockups and courthouses all of which add considerable stress and costs to the running of the system."

BarTalk Vol.8 No. 6

Shel ley Bentley

December 1996

Chambers family practice Some helpful tips from Master Horn Master Hom provided Nanaimo Family Law Subsection members with various family chambers practice tips. He covered such topics as guardianship orders, enforcement of access orders, Property and Financial Statements and the new Child Support Guidelines.

GUARDIANSHIP

between guardianship and custody. He provided a copy of what he described as a good guardianship order which sets out what a non-custodial parent can expect.

He also commented that the form of this order would be good for school authorities to see because it answers questions that they might have about what a non-custodial parent is entitled to.

Master Horn commented that much confusion still exists about the difference ----Continued over

STYLE OF CAUSE "THE APPLICATION of the Plaintiff coming on for hearing, at the City of Nanaimo, in the

Province of British Columbia, and in the presence of Work Hard Wilma, Esq., counsel for the Defendant, AND BY CONSENT:

THIS COURT ORDERS AND BY CONSENTthat the Plaintiff shall have custody of the child, JOHNNY JONES, born October 31, 1992 (the "child");

THIS COURT FURTHER ORDERS AND BY CONSENT that the Defendant shall have reasonable and generous access to the child;

THIS COURT FURTHER ORDERS AND BY CONSENTthatthe Plaintiff and Defendant shall share joint guardianship of the child with guardianship including the following rights:

(a) to be informed of the child's medical and dental practitioners; (b) to contact the child's medical and dental practitioners and obtain the child's medical and

dental records; (c) to be consulted with respect to the selection of the child's alternative caregivers, such as

daycare and preschools; (d) to be consulted with respect to the selection of the child's schools and school programs; (e) to consult with the child's alternative caregivers and teachers; (f) to be informed of events at the child's schools or day care so the Defendant may attend; (g) to be informed of parent/ teacher nights so that the Defendant may attend; (h) to be consulted with respect to any significant health issues relating to the child; and (i) to be consulted with respect to any significant change in the child's social environment. THIS COURT FURTHER ORDERS AND BY CONSENT that the Defendant shall pay the sum

of $150.00 to the Plaintiff as interim maintenance for the child commencing on the 1st day of June, 1996, and continuing on the 1st day of each and every month thereafter until further order of the Court;

THISCOURTFURTHERORDERSANDBYCONSENTthattheissueofthequantumofchild maintenance shall be set for review on the 22nd day of August, 1996 and that either party shall be at liberty to apply to vary the quantum of interim child maintenance.

APPROVED AND CONSENTED TO: BY THE COURT:

DISTRICT REGISTRAR

3

SECTION TALK

Recycling Works Research by the Greater

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cent of businesses have

started recycling, 30 per cent

of business garbage still in­

cludes recyclable paper and

cardboard. The GYRO hopes

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recycled and has a goal of

reducing garbage in the

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At the centre of Recycling

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of Practice supported by

promotion, education and

technical assistance for

business.

By calli ng Recycling Works

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companies can obtain a free

kit, "The Works," which

provides information on

recycling. how to hire a

contractor, tips on recycling

cardboard and paper and

how to buy recycled

material.

4

Chambers family practice tips Continued from page 3

ENFORCEMENT OF ACCESS ORDERS Master Horn also commented on the

enforcement of access orders and noted that there is no mechanism or jurisdiction to give a police enforcement order to a non-custodial parent so that he or she may enforce access. The Family Relations Act provides that a peace officer may only enforce custody, household occupancy and harassment orders. With respect to peace officer enforcement clauses, in Master Horn's view, the Court has no jurisdiction to order that a peace officer "shall" arrest an individual. The Court may order that the officer "may" arrest an individual who is in breach of an order.

He referred to a number of ways to deal with the problem of enforcing these orders:

1. reimburse the expenses of the lost access from the denying parent to the denied parent;

2. substitute other defined access time for the denied access;

3. order that a supervisor attend with the access parent to pick up the child , the costs of this to be borne by the denying parent;

4. provide a mediator for the parties; or 5. have the denying parent provide security

for the performance of the access obligation by either providing for money or property to be put up and then forfeited if the access does not occur.

Master Horn recognised that options 3 and 4 are impractical for many because of the costs involved.

PROPERTY AND FINANCIAL STATEMENTS

On the use of Property and Financial Statements in Family Chambers, Master Horn suggested that counsel who attack another party's Statement should provide an annotated version of the Statement with the arguments identified. He noted that it was difficult for the Court to do detailed mathematical calculations from the Bench.

MAINTENANCE Master Horn asked that counsel provide the

Court with a range of what maintenance should be awarded in maintenance cases. Although he recognized that the Child Support Guidelines are not yet law, he noted that the Guidelines are based on significant research in determining what an "average" family will pay for a child. They are helpful as a starting point from which

the Court can determine the proper maintenance level. As such he would like to hear how the Guidelines would apply in cases coming before him now. During a discussion of the effect on maintenance of a new spouse in a household he commented that he was unable to take a new spouse's income into account in setting maintenance but he was able to look at that individual's sharing of the expenses in assessing what the "truth" of a Property and Financial Statement might be.

NEW HUMAN RIGHTS CODE TO BECOME EFFECTIVE JAN 1, 1997 Bill Black, UBC law professor and author of the B.C. Human Rights Review, a December, 1994 report to the BC Government on human rights, spoke to Poverty Law Section members about the current and future human rights complaint proc­ess in BC. He highlighted the changes which are slated to become effective under the new Human Rights Code on January 1, 1997.

In addition to significant structural and procedural changes, the new Code gives the Human Rights Commission the mandate to provide public education on human rights issues and gives the Chief Commissioner power to file a report that must be tabled with the Legislature. One of the most significant changes is the new power of the Commission to file a complaint. This will allow the Commission to tackle such issues as systemic discrimination. The new Code will not change the scope of the prohibitions covered by the current Human Rights Act.

PROBLEMS WITH THE PRESENT SYSTEM

Currently the Human Rights Council is required to act as all things; administrator, investigator, adjudicator. In his December, 1994, report on human rights in BC, Mr. Black stressed the importance of separating the adjudicative function from other enforcement functions. The aim in doing this is to preserve the impartiality of adjudication and to ensure that other components of human rights protection such as education, advice, monitoring and the representation of the public interest can be implemented without fear of undermining this impartiality. Currently the Council cannot represent a complainant or the public interest in a particular case and cannot take a public stand on human rights issues.

With respect to procedure, current human

BarTalk Voi.B No.6

rights investigations involve a" one size fits all" scenario with no regard for the circumstances of the particular case. The mediation process has been criticized for forcing unsatisfactory settlements and not bringing about a true resolution of the complaint. There are significant delays in the current system. On average, it takes three years to get to a hearing. Concerns have been expressed about the lack of legal representation available for the parties. The Legal Services Society tariff only provides counsel for those cases which go to a tribunal. Only four percent of complaints go as far as the hearing stage.

In Mr. Black's view the new Human Rights Code largely addresses these problems.

STRUCTURAL CHANGES The Code creates two agencies, the BC

Human Rights Commission (the" Commission") and the BC Human Rights Tribunal (the "Tribunal").

Professor Black described the model for the Commission as being half-way between the Federal Human Rights Commission and the Ombudsman model. There will be three full­time Commissioners: a Chief Commissioner, who will be the CEO, administrator and public spokesperson; a Deputy Chief Commissioner who will be responsible for matters such as education, research and monitoring the status of equality in the Province; and a Commissioner of Investigations and Mediation who will be the neutral administrator managing the investigation and mediation processes.

The Tribunal's sole function will be to adjudicate. The Code requires three full-time members and possibly up to six part-time members, likely for outside the lower mainland. Tribunal members will be appointed by order­in-council. In his December, 1994, report Mr. Black pointed out the advantages of having such a permanent adjudicative body in place. Permanent full-time members can develop the expertise needed to operate efficiently and promote continuity and consistency. He recommended establishing a purely administrative tribunal instead of a tribunal composed of judges and assessors. This is because he felt that a tribunal composed of judges might tend to become too rigid and technical. It would also be less likely that the tribunal would represent different sections of the community if the search for a candidate

December 1996

were limited to judges. In addition to the Commission and the

Tribunal there will also be a Human Rights Advisory Council made up of community-based individuals who will be appointed by order-in­council to act as watchdogs. This Council will not deal with specific human rights complaints.

PROCEDURAL CHANGES The most significant change to the process is

that the Commission can now file a complaint. This will allow it to deal with systemic discrimination issues.

The limitation period for filing a complaint has been extended from six months to one year, with the power to extend further. The Code provides for power to make regulations that will set time limits for other stages of the complaint process.

The Commissioner of Investigations and Mediation may defer the processing of a human rights complaint where another process is available which might deal with the humanrights issue, for example grievance arbitration. At the completion of the alternate process, the Commission will determine whether the remedy granted was adequate considering the human rights issues and compared to the remedy available under the Code. The Commission can dismiss a complaint if it is found that the human rights issue has been adequately dealt with under the alternate process.

The new Code makes changes to the Commission's power to dismiss a complaint before hearing. This power resides with the Commissioner of Investigations and Mediation whose decision may be appealed to the human rights tribunal. The grounds for dismissing a complaint include; out of time,lack of jurisdiction, failure to state a cause of action, no reasonable basis to refer to a hearing i.e. no evidence or complaint appropriately dealt with at another proceeding.

All new complaints will be dealt with by Commission staff as opposed to Industrial Relations Officers from the Employment Standards Branch.

Under the new Code, the investigator can apply for a court order compelling the production of evidence. Complaints can be sent straight to a hearing without investigation.

Tribunal hearings will be the same as those presently held in many respects. The main

Continued on page 6

SECTION TALK

5

SECTION TALK

6

New Human Rights code Continued from page 5

difference is that the Commission can now be a party to a complaint, representing the public interest. The Tribunal has power to add intervenors, for example, in cases of systemic discrimination, to make regulations regarding

discovery and generally to setits own procedures. There are no major changes to remedies except

for the power to modify remedies in case of systemic discrimination. •

Government urged to reconsider closures Continued from page I

will arise for the jurisdictions of Langley and West Vancouver. The movement of an in­custody prisoner, again, creates enormous problems in terms of paperwork in the registry, sheriffs to transport them, booking in and booking out of various lockups and courthouses, all of which add considerable stress and costs to the running of the system. The issue of police witnesses and the added time and costs for their

Dear Editor: There is a need to introduce legislation whereby all liens of $10,000 or less can be, and should be, heard in the Small Claims Court. The majority of liens filed in the various Land Titles Offices are for less than $10,000. In order to preserve the lien, an action must be commenced in the Supreme Court of British Columbia, either within one year of the filing of the lien, or after receiving a 21 Day Notice from the owner of the property to do so.lt has been my experience that many small lien holders are victimized by unscrupulous owners or contractors who take advantage of the lien claimant by serving him with a 21 Day Notice. The lien claimant, faced with the daunting task and expense of retaining a lawyer to commence an action in Supreme Court, simply ignores the Notice thereby allowing the owner or contractor to apply to the Registrar of Titles to have the lien removed.

It is my opinion that the Small Claims Court should have jurisdiction to deal with all such liens as this would give ready and inexpensive access to the Court for small lien claimants. This would reduce the number of actions filed in the Supreme Court where much time is taken up on chamber applications to obtain orders for payments in or to strike out the proceedings for irregularities.

Yours Truly, Glen J. Buckley •

attendance in an area away from their detachment must also be considered.

The membership of our organization most strongly urge the Minister to reconsider the proposed closures and we would request an opportunity to have some input into the proposed changes. I can advise that at our meeting of November 20, 1996, those in attendance unanimously passed the following resolution:

"Whereas the Vancouver Criminal Justice Section is equally concerned about cost-saving measures and promoting and fostering access to justice in the municipalities in the outlying areas of Vancouver; and Whereas the Vancouver Criminal Justice Section is concerned that the proposed closures of the Provincial courthouses in Langley, West Vancouver and Richmond, BC, will not produce any real savings; and Whereas the Vancouver Criminal Justice Section is concerned that the proposed closures of the Provincial courthouses in Langley, West Vancouver and Richmond, BC, will result in a denial of access to justice by those municipalities; BE IT RESOLVED that the Vancouver Criminal Justice Section strongly opposes and condemns the proposed closures of the Provincial courthouses in Langley, West Vancouver and Richmond, BC."

The members of the Vancouver Criminal Justice Section strongly urge the Minister and the Ministry to reconsider the proposed closures. Furthermore, we would like to be involved in any discussions, submissions or input that may be involved in any reconsideration of the proposed closures.

I trust that this is satisfactory. I look forward to hearing from you at your earliest convenience to discuss the matter further.

Yours very truly, Kate Ker, Chair, Criminal Justice Section, Vancouver, 1996/97 •

Bar Talk Voi.S No. 6

The judiciary moves forward with reforms to the justice system The new Chief Justice of the BC Supreme Court in conversation with BarTalk

BarTalk: The CBA recently released the Task Force report on Systems of Civil Justice. Are you in favor of the overall thrust of the reforms contained in that report?

Chief J ustice:Oh yes. I believe it's an extreme­ly positive move and should prob­ably have been done many years ago. But I think the Canadian Bar Association has done what they usually do-that is, they've tack­led a problem with a common sense approach. Clearly there is too much in the report to simply answer your question, "Yes" or "No." My answer has to be bro­ken down into a number of specif­ics.

judge sees that a large trial should have media­tion, it's my hope that the system will be handled in such a way that he can order it. First of all, he would ask if the parties were prepared to go­and I think in 95% of the cases they would-there

would be a settlement reference and the settlement reference would be to the settlement divi­sion of the court.

One of the specific reforms we shall be trying is in part of the multi-trackjusticesystem that was recommended in the report. For trials that are over ten days, there

Chief Justice Bryan Williams

If that failed, the judge would then carry on with the manage­ment of the case and take the trial. The advantage of that is that the case management judge is not going to know anything about settlement so he is nottainted, but he is going to know all about the case, throughout. Where this has been tried, in my understanding, it works very well because if you, as a lawyer, know he or she is going to be the trial judge you

are several possibilities. One of them is an indi­vidual docket system so that each judge starts out with the case and goes right through with it. That's a good system that works very well in Seattle and other places where the judges aren't mobile.

But where you have judges, as we do here, travelling throughout the province, they're not available for Chambers motions or other matters in Vancouver, so it doesn't work very well. But we think we have a very good alternative to that, which is the Case Management Project. (Editor's N ote:For further information about this system, see the October issue of Bm-Talk.)

Selected trials that are expected to last more than an estimated 10 days will go into phase two of the Case Management Project next year. My hope is that this will involve several features. One is that the judge will take control of the case at the start. He or she will continue to hold sessions where issues can be raised but the parties will not require chambers motions, and so on, that are required under the current system. If the

December 1996

want to appear to be reasonable throughout. If that works, we'll wind up with the results of "X" number of cases in the Pilot Project against the same number in the ordinary way. And let's just see what the results will be. It is as simple as that. We believe it will turn out to be a very positive thing-and that's in keeping with whatthe Cana­dian Bar Task Force says.

BarTalk: What about the philosophy behind the report?

Chief Justice: It seems to me that what the report essentially recommends is that there must be more control of the litigation process in the courts than there has been in the past. I agree with that. I don't mean to say that the power should shift completely, but I am saying that insofar as there is a need to do something about delay and costs, the courts simply must have more control or they can't do anything about it. I don't think that the litigation process should be taken away from the Bar and transferred to the

Continued over

7

8

In conversation with Chief Justice Bryan Williams Continued from page 7

Court, as I've heard at least one person suggest. Basically, I think reforms should ensure that the public is better served by some kind of discipline and that discipline is going to have to be imposed.

BarTalk: Do you think that, at this time, the rules are adequate to deal with what you are recommending?

Chief Justice: I think in all likelihood new rules are going to be needed for us to do it.

BarTalk: One of the major criticisms contained in the report was that under the current civil justice system there are far too many unnecessary delays­some of them causing cases to last over many years. Do you believe this criticism is fair?

chambers system, though not quite an appointment system, is going to start on the first of January, 1997.

We have some rule changes that are necessary. If those rules are passed by the rules committee­the Bar has been fully consulted on all of this and has agreed with the changes-they will go before the Lt. Governor in Council before the end of the

year. Hopefully, they will be passed and on January 1, 1997 we can start.

The project will set specific time limits and I am going to issue a practice directive that will require time limits. The Bar and judges will need to live within those time limits. A measure of

Chief Justice: "It seems to me Chief Justice: Having been a that what the report essentially

common sense will need to prevail here. I think that slavish adherence would work against the interest of the litigant, the judge and the lawyer but that doesn't mean we are going to have a rule that isn't enforced. It means that there have to be valid reasons for an exception to the rule. There has to be at least

lawyer all my life, practicing in recommends is that there must be

our courts, I'm not sure that more control of the litigation

criticism is completely fair. For process in the courts than there

example, I think there are has been in the past. I agree with that."

instances where it is in the best

some rein put on time limits and there isn't now.

interests of the client to delay. So the lawyer delays because it is in the best interest of his client even though it may be not in the best interests of the system. I don't mind if we have a system where the lawyers are more heavily disciplined with respect to their own diaries and that sort of thing. I think they have to accept that and I think the judges will have to be better disciplined as well. We need to be careful, though, that we don't come up with a Court system that will act against the interests of the client.

There definitely has to be more direction coming from the Court, although I see this being worked out cooperatively with counsel. Certainly there must be more strictly enforced rules such as time limits. In the past, some judges have not been in favour of enforcing time limits, some lawyers don't want to live with them, but I think this has to change.

BarTalk: Does this have anything to do with the Chambers Project that we've heard about?

Chief Justice: Yes. If we can develop what I'm trying to do in chambers which is, ultimately, an appointment system, it will be in the best interest of lawyers, judges and clients. The new

BarTalk: What other projects are on tap to speed up the court process?

Chief Justice: Well, we are also initiating the Speedy Litigation Project. It's also in keeping with the multi-track concept except that it will probably, at least at the start, only be available for cases that are expectP.d to last less than 10 days-or the majority of c.1ses, in other words. If you want to be on the fast track, so that you can get your trial date on within a few months, you will live by strict rules. That means documents must be filed with the pleadings, discoveries will be limited, deadlines will be set and must be adhered to. At the same time, if you find that you're unhappy with the fast-tracking and these rules, you'll be able to get out of it and move on to another track.

BarTalk: What about more efficient use of judges and their time? Any ideas about how to achieve that?

Chief Justice: We are now establishing a system-we haven't blown the bugs out of this one QUITE yet-so that when a judge comes free anywhere in the province, he or she can take the Chambers list by telephone or video conference. We are going to experiment with that before the

Bar Talk Voi.B No.6

end of the year. There aren't any rule changes needed for it and, if it works, we'll try to squeeze it into the chambers project that will start in January. It is actually a separate project from the other one but I am sure there will be places where they can work together. Teleconferencing makes a great deal of sense. There's just no point in flying judges down to Vancouver at great cost for only one day.

BarTalk: I suppose the other major initiative is the introduction of the 12-month rota?

Chief Justice: Yes, we are proposing that to start in 1998. However, I am not as yet booking those summer dates because I have promised to consult with the Bar and I'm

able to provide speakers on particular subjects to help people better understand how the courts work. For example, we might ask a judge to explain the rationale behind court injunctions, contempt of court, etc. Of course, we would not deal with any cases that are before the court, nor would we deal with any political issues. If there was controversy about an injunction granted to

an abortion group, for example, we obviously wouldn't talk about abortion, but we might talk about injunctions in general.

At the present time, we are drawing up guidelines for the judges. The Chief Justice should not be the only judge who speaks out. The Chief Justice is the only one who can speak for the Court, but at least other judges should be available to communicate with the public, just like the Bar does. We should be available to commwucate with communities and the media.

waiting for people to respond to a notice which was sent out about this proposal fairly recently. I still welcome more

Chief Justice: "We need to be comments, by the way. I'm careful, though, that we don't We should also know better how

to deal with the press and television and are exploring a number of different options. Should we have a

hoping by the end of the month come up with a Court system that

we will have a pretty good will act against the interests of the

response from members. I am client."

sorry there isn't more time to solicit opinions from the Bar, but on this project we really have to move. The pressure is on me right now to book the summer of 1998. I have resisted that pressure, though, until we hear back from the Bar. There's a great deal of interest within Government and Court Services in a 12-month rota system. And I believe the public in teres tis clearly better served by a 12 month rota than a 10 month rota, where things simply can't be brought on in the summer unless they meet some emergency schedule.

BarTalk: There has been some comment about the need for the judiciary to be better understood by the communities they serve and by the media. Any thoughts on that?

Chief Justice: We have recently established a Judicial Communications Committee to consider just those issues. The objective of this committee is to better communicate with the people of British Columbia, to better explain what judges do and why, to better deal with criticism and complaints so that we can do a better job. Specifically, one of the things I would see this committee setting up would be a speakers' bureau and I'd like to make sure that it was well publicized among schools, service clubs, government, the Bar, etc. We would be

December 1996

public forum? Should we go on commwuty TV? Should we have a radio show? Should we be writing articles in the newspaper? Should we be responding when there is criticism? Should we be doing any of these things? I am not prepared to answer any of those questions at the moment because the commmucations committee is going to consider them and give careful thought to how we should go. But I'm confident that we'll come up with some answers.

Communication with the public and the media is important. Any institution should be doing the bestjobitcan to communicate. There has been a lot of criticism of individual judges and criticism of attitudes that I think needs to be explained. One of the biggest issues is sentencing. Some people think crin1inals should all be packed off to jail, no matter what. Of comse, there's a lot more involved in sentencing than that, but it's never been properly explained. The approach to sentencing must be better explained than it has been. +

9

By

Joanne Power

Manager Registrar Program

If you have any interesting

or unusual questions or

comments about this col­

umn, please write directly

to:

JOANNE POWER Manager, Registrar

Programs

Law Courts, 850 Burdett

Ave. Victoria, B.C. V6W I BS

INTERNET: jpower@ galaxy.gov.bc.ca@gems

or Fax: 387-3061

10

ADOPTION ACT 5.15(1)

Q Where is the authority for sealing adoption files?*

A There is no statutory authority to seal an adoption file . Each registry, however, must ensure that s.15(1) is complied with.

"An application or a document filed in the registry of the court in connection with an application, and an adoption order are not subject to search. No person other than the Attorney General or a person authorized by him in writing, may have access to them; .... "

We believe it sufficient if an adoption file is stamped "no search", with no access permitted by registry staff, absent a court order or on direction of the Attorney General. Adoption files can be placed in a segregated area within the registry in order to minimize the risk of unauthorized searches.

*The "new" Adoption Act, S.B.C. 48 will be proclaimed in November, 1996. The confidentiality provision is contained in s. 43:

"An application for an order under this Act or any document filed in court in connection with the application may be searched only:

(a) by order of the court, or (b) at the request of the superintendent."

ADOPTION ACT 5. 15(2)

Q How would you comply with a request from an adopting parent or an adopted child to certify a true copy of an adoption

A order?

Section 15(2) allows a registrar to certify the copy that has been delivered to the registry by the above parties:

"Nothing in subsection (1) prevents a registrar from certifying as a copy of an adoption order a document prepared and delivered to him by the adopting parent or an adopted child named in the adoption order, if in fact the document is a copy of the order."

JUDICIAL REVIEW PROCEDURE ACT

Q If a party disagrees with a Supreme Court Judge's decision in a Small Claims appeal, may they file a petition pursuant to the Judicial Review Procedure Act?

A This is a legal question. If asked at the registry counter, advise the applicant to seek legal advice . If he or she insists on filing the document, accept it, and let the Court decide. * * See also our question distinguishing a Judicial Review from an appeal: p.15, 1992-1995 Consolidation.

OFFENCE ACT 5.72(6)

Q What form of certificate is used pursuant to s. 72( 6) of the Offence Act when filing for enforcement in the Supreme Court?

A This section has recently been amended by Bill 10, 1996 s.27 to allow certificates to be filed in Provincial Court as well as Supreme Court. Section 72(6) is set out as follows: "If a person fails to pay

(a) a fine in accordance with an order made under subsection (2), or

(b) a fine payable as a result of the person being deemed to have pleaded guilty to the contravention of an enactment alleged in a violation ticket, a certificate of a person designated in the regulations may be filed with the Supreme Court or the Provincial Court. .. " The certificate has been adapted by Court Services for use in the Supreme Court (Attachment #1). The majority of these certificates willlikely be filed in the Provincial Court. If a certificate is filed in the Supreme Court by a party other than the Province, eg. the City or Municipality, a $200 filing fee must be levied pursuant to Appendix C, Schedule 1, Item 7.

REAL ESTATE ACT 5. 48(2)

Q How does money get paid into court and out of court once a matter is settled pursuant to s.48(2) of the Real Estate Act?

A Payment in may be made ex parte. The agent who holds the deposit in dispute files a praecipe (pursuant to Rule 10(2)), a draft of the order, and an affidavit setting out the requirements of s.48(2). On the court being satisfied the requirements have been met, an order may be made for payment in. A payment out application must be spoken to before the court unless the parties consent:

BarTalk Vol.8 No. 6

Section 48(5) states: "money paid into court under subsection (2) shall not be paid out of court except by order of a court.. .. "

Rule 41(16)

Q Could a Registrar issue a consent order pursuant to rule 41 ( 16) allowing a matter against two named defendants to be tried

A separately?

No, this must be referred to the court pursuant to the Rule 41(16)(d) .* *See also issue #22, Attachment #1: Guidelines on the issuance of Registrar's Consent Orders, and, the Consolidation Index Questions and Answers 1992-1995 p . 32 concerning an application to split liability and damages.

Rule 41(16)(a) & Rule 6

Q Is a party represented by a committee in a Patients Property Act application, or a person represented by an executor in an

A

estate matter, a person under a "legal disability?"

"person under a legal disability "refers to a living person and not a dead one. Thus, the term refers to someone who is either mentally incapable or is legally incapable because he or she is under the age of majority. Exercise caution when you think a party may be under a "legal disability" and refer the matter to court under Rule 41(16)(d).

Rule 42( 12) & Residential Tenancy Act 51

Q If a landlord seeks a writ of possession based on an order for possession issued by an arbitrator pursuant to the provisions of

A

the Residential Tenancy Act, which has been filed with the Supreme Court, what are the requirements for service on the tenant?

Section 44 of the Residential Tenancy Act provides that the order of the arbitrator may be filed in the Supreme Court and enforced as a Supreme Court order. After that order has been filed with the Supreme Court, it must then be served on the tenant in accordance with Rule 42(12) and an affidavit in support must be filed before a writ of possession will issue. This means that a landlord might be required to serve the tenant twice, once in accordance with the

December 1996

requirements of the Residential Tenancy Act and, again, after the order has become an order of the Supreme Court, in accordance with the Supreme Court Rules . While this might seem an onerous requirement on the part of the landlord, it should be noted that the service requirements under s. 51 of the Residential Tenancy Act are fairly broad and include posting a notice in a conspicuous place on some part of the subject property. The service requirements of the Rules require that an individual be served by leaving a copy of the document with he or she (Rule 11(2)(a)).

Rule 42(25) Appendix C Schedule 3

Q Is conduct money required to be served with a Subpoena to Debtor?

A The effect of the amendments to Schedule 3 of Appendix C of the Rules of Court is that a party subpoenaed to attend an examination under Rule 42 is not entitled to the daily witness fee. With respect to expenses, if the individual subpoenaed lives less than 8 kilometres from the place of examination, no conduct money is due; if the distance is more than 8 kilometres, the debtor is entitled to $.30 per kilometre; if the debtor resides more than 200 kilometres from the place of hearing, the minimum return airfare must be provided together with $.30 per kilometre each way from his or her residence to the departure airport and from the arrival airport to the place where the examination is conducted. Where appropriate, allowances for meal expenses will be required.

Rule 45(3)

Q Is Rule 45(3) available to a party seeking an ex parte restraining order in a divorce matter?

A Yes, injunctive relief is available under Rule 45(3 ), allowing injunctions to be granted prior to the commencement of proceedings. Ex parte restraining orders are frequently requested at the beginning of matrimonial proceedings and urgency may not, by itself, provide a reason for the granting of an

Continued on page 12

II

12

injunction prior to the commencement of the proceeding. In a Family Relations Act matter, it is typical to refer to the specific sections of the Family Relations Act under which relief is sought.

Rule 60(22)

Q Is an order made in a proceeding under the Divorce Act or the Family Relations Act, and entered in an "order book" pursuant

A to the rule 41 (25) a searchable document?

We believe matrimonial orders are searchable. This conclusion was reached by an analogy: while Rule 60(22) refers specifically to a "registry file", the status of Reasons for Judgment is clarified in Practice Direction #2 of Chief Justice Esson dated November 17, 1989: "Reason for Judgment should not be considered as part of the court file, even though a copy may be kept there. Reasons for Judgment are in a different category from the court file and should be available to the public either through the press file or by an application to search a file upon the proper fee being paid."

Rule 66(25)

Q What form is used if a party fails to attend on a s. 18 Family Maintenance Enforcement Act hearing?

Justice Institute honours Judge Judge Thomas Gave was recently awarded the Pantages Medal by the Justice Institute of BC Foundation. The newly-initiated award is intended to honour people who have made a significant contribution to improving the justice system. Judge Gave was the first recipient.

The judge was called to the Bar in 1974 and worked in private practice where he gained a reputation as an expert in family law and as a child advocate . In 1994, following the tragic death of a young child, he was appointed by the provincial government to head an inquiry into child protection in British Columbia. His report was subsequently used by the goverrnment as a basis for the establishment of its new Ministry for Children and Families.

A Form 119 in the Supreme Court Rules: Rule 60(25): "A summons under section 18 of the Family Maintenance Enforcement Act requiring a debtor to appear at a default hearing before the Supreme Court shall be in form 119."

Rule 62(5)(6)

QWhy is the original grant given out to the applicant in a probate matter, and how can the registry certify a true copy of the

A grant without the original?

While there is no specific authority for this practice, it can be inferred from Rule 62(5) and (6): "(5) In an action for the revocation of a grant of probate or administration,

(a) if the action is commenced by a person to whom the grant was made, the person shall lodge the grant with the registrar ...

(b) if a defendant to the action has the grant in his possession or under his control, the defendant shall lodge it with the registrar ... " "(6) Where a person fails to comply with sub rule (5), the registrar may issue a citation in form 85 calling on the person to bring the grant into the registrar's office, ... " Form 85 requires the person to deliver the "original" grant. A certified copy of the grant can be made from the copy of the grant that is kept in the Probate file. We do not need the original to certify a true copy. We must only be satisfied it is a copy of the original document.

REGISTRY PRACTICE

Q How much time can registry staff realistically spend at the counter with "in person" litigants?

A There is no precise answer to this question but registry staff must be aware of the difference between legal advice and legal information. The latter is part of our mandate, the former is not. No registry time should be devoted to providing legal advice to any litigants at the counter or on the telephone.

BarTalk Vol.8 No.6

NEW INITIATIVE DESIGNED TO ASSIST PRACTICING LAWYERS Non-profit student research society started at UVic

he Student Legal Research Society (SLRS) is a new initiative which will allow BC lawyers to hire senior University of Victoria law students to perform legal research.

The goal of the society is to provide quality legal research, while at the same time providing real research experience for law students and generating bursaries for students in financial need. A graduating UVic student suggested the idea in the spring of 1996 and offered his legal research client list as a starting point.

The Dean of Law and the Law Students Society supported this venture through the development of a proposal which re­commended that a non-profit society be form­ed.

Presently, operations are run by the co­ordinator and guided by a board which includes representatives of: the local Bar (chosen in consultation with the VBA); the law school student population and the faculty of the law school.

Practicing lawyers can contact the SLRS co­ordinator to make a research request. The lawyer explains the point to be researched and controls the number of hours (and thus the cost) of the research. The cost of research requests vary, but research requests can often

are vetted by the co-ordinator to ensure that they are of high quality. During the research process, the students generate a full research methodology to ensure that the lawyer receiving the project knows what has and has not been looked at.

Students who have an appropriate background bid on the new projects. For the students, it's an exciting prospect to turn away from academic work for a time and delve into a real research problem. This type of experience gives students a better understanding of the research they might be asked to do in their future careers, so most students put in a strong effort. As well, earning any money during an academic year can be a real boost for a student.

The most beneficial aspect of this operation is the creation of bursaries which increase according to the amount of research being performed. The society contributes its accruals to a bursary for students in financial need. The goal is to create a substantial bursary on a yearly basis.

If you would like more details or would like to make a research request please contact the co-ordinator Daniel Corrin by phone, (250) 385-5291 fax (250) 721-6390 or email slrsuvic@uvic.ca. •

be completed for w1der one hundred dollars . The completion time for projects is usually quite short; however, requests may not be immediately accommodated in the middle of the exam period.

Student legal research society board

For the researching students, the process begins with training sessions which are intended to tailor the students' legal research skills towards the needs of practicing professionals. Students learn some of the different expectations of practical research as opposed to academic research. The projects

December 1996

From left: Tim Russell, Lesley Ruzicka, Sheldon Seigel, Erik Gotfredson, Jamie

Cassels (Associate Dean, UVic Law School). Missing from picture: Brad Ryan .

13

14

Vincent C. Yang, Ph.D.,

Program Manager,

International Centre for

Criminal Law Reform

and Criminal Justice

Policy

A pioneer program to assist criminal law and justice reform in China

he Chinese legal system is going through a historic period of transition from the rule of man to the rule of law. The International Centre for Criminal Law Reform

Criminal Justice Policy is providing assistance to this transition for the reform of the criminal law and the administration of criminal justice.

Canada's communication with the People's Republic in law and justice started in 1985, when the Department of Justice of Canada sent Daniel Prefontaine, Q.C., Assistant Deputy Minister of Justice and now Director of ICCLR, and his colleagues to China. This was followed by a visit of 100 Canadian advocates to Shanghai in 1987, when I was an international lawyer working with the Chinese hosting agencies. However, prior to the launch of ICCLR's China Program, little substantive progress had been made for co­operation in the area of criminal law and criminal justice between the two countries.

In late 1995, the Centre launched a China­Canada Criminal Law and Criminal Justice Cooperation Program. The" China Program", as the first major program of technical cooperation launched by the Centre since its establishmentin 1991, is to assist China implementing UN standards in law reform and promote the principles of human rights, the rule of law, and good governance in criminal justice.

The Program is having a direct impact on human rights in law and justice. To date, the Centre has provided important assistance to the Expert Drafting Group for Amending the Law of Criminal Procedure of China in its preparation of the draft Code. We have sent four delegations to teach at the Central prosecutors' College of China, the China University of Political Science and Law, and some other Chinese legal training institutions. Lectures and workshops were organized to address important principles of the Canadian Charter of Rights and Freedoms and the UN standards, such as judicial independence, the presumption of innocence, the right to counsel and the exclusionary rules of evidence.

Striking a balance between the promotion of human rights and the prevention of crime has always been a challenge to all the countries in

the world. In the China Program, we have also been developing a Canada-China cooperative relationship to assist in combating transnational organized crime, corruption and financial fraud. This will also serve to enhance the preservation and integrity of the financial and commercial systems.

We are making a difference. Between 1994 and 1997, ICCLR hosted three survey visits of delegations from our partner institute in China, formerly the Expert Drafting Group for the Revision of the Law of Criminal Procedure and now the Research Centre for Criminal Law. In March 1996, based on a Draft prepared by this Group, the National Congress of China revised the Code. In the new Law, the Congress has incorporated, for the first time in the history of the People's Republic, fundamental human rights principles, such as the presumption of innocence and the right to contact a defense lawyer after arrest. Also significantly, the Congress has abolished "shelter and inspection," i.e. the system which allows the police to detain a person for up to three months without trial and contact with a lawyer. This law will become effective on January 1st, 1997.

Following the promulgation of the new Law, ICCLR sent a delegation to present papers at a high-profile International Symposium on Criminal Procedure in Beijing in May, 1996. The event was attended by four Minister-level officials of the Chinese government. At the meeting, the Chinese host acknowledged the ICCLR representatives, in front of all the delegates from Asia, Europe and North America, for "making the most distinctive contribution to the success of the Symposium". Letters were sent to the Centre by Chinese authorities, formally acknowledging our "distinctive contribution" to, and for the provision of "important reference experience and materials" for, the reform of criminal procedure in China.

The written law needs well-trained professionals to implement it. The Centre has started the pioneer process, primarily in co­operation with Central Prosecutors' College, a national institute which trains all the senior prosecutors in China. In March 1996, the Centre hosted a delegation of senior prosecutors from

BarTalk Vol.8 No.6

the College and the Supreme People's Procuratorate. This was the first visit of a delegation of Chinese prosecutors to Canada since 1949.

Significantly, the Vice President of China's Supreme People's Court visited ICCLRinAugust 1996, leading a high-profile eleven-member joint delegation to attend the 9th Annual Conference of the Society of the Reform of Criminal Law. This was the highest ranking delegation of the Chinese judiciary to Canada since 1949. The Chinese delegation made presentations on the use of non-custodial measures in sentencing and the conh·ol of transnational economic crimes.

In September 1996, ICCLR sent a delegation to a Sino-Canada Training Workshop on Criminal Procedure and Commercial Fraud at the Central Prosecutors' College. This was a significant event in international cooperation for judicial training in China. Two hundred and twenty chief prosecutors, including 110 prosecutors from ethnic minority areas across the country, attended the lectures.

Strong support for the work of the Centre has been expressed by Raymond Chan, Secretary of State (Asia & Pacific). At a press conference last August, he said that ICCLR' s China Program served as "an excellent example" of Canada's efforts to assist the promotion of human rights and the rule of law in China. The Deparhnent of Justice of Canada, the Ministry of Attorney General of BC, the RCMP, the Society for the Reform of the Criminal Law, the Canadian Bar Association (BC Branch), the Law Society of British Columbia, the University of British Columbia, Simon Fraser University and other institutions in Canada have also made contributions to the Program.

The Centre is now preparing to enter the next phase of the Program. We have built a bridge. Our work is important, unique, high-profile, well-organized, productive and successful. I hope legal professionals in China and Canada continue to work together in this area for our common goals and interest. •

Dr. Vincent C. Yang, a new Canadian citizen, taught and practised the law in China for six years. He was also trained at Cambridge University in England and more recently at Simon Fraser University in Canada. He is now Program Manager at the International Centre for Criminal Law Reform and Criminal Justice Policy.

December 1996

CASE DIGESTS SUBSCRIPTION SERVICE Concise Summaries of Judgments

Since the launch of its Case Digest Subscription Service in May 1996, CLE has added some new features . In addition to publishing weekly and monthlydigests ofeveryjudgment handed down by the BC Court of Appeal and BC Supreme Court, CLE now publishes all available judgments from the BC Provincial Court. Beginning January 1997, it will also include Supreme Court of Canada judgments originatil1.g in BC.

Used by the judiciary, the case digests feature: names of counsel, cases considered, expert evidence (including names of experts), indices, full text judgment service, and appeal warning.

The new Criminal Law Digest, published weekly, is now available. It'll tell you about all criminal cases released by the courts and quasi­criminal cases dealing with environmental law, Motor Vehicle Act offences, and many more.

Case digests are published in 13 distinct subject areas. Weekly case digests are available in Civil Practice and Procedure, Commercial, Criminal, Family, and Personalinjury. You'll get information within approximately one week of the decision being available, from just $3.75 per week.

Monthly case digests are available for Bankruptcy and Insolvency, Construction, Court of Appeal, Insurance, Labour and Employment, Municipal, Real Property, and Wills and Estates. The monthly service is available from just $10.40 per month.

Save 25% if you subscribe to more than one subject area digest. Or, subscribe to the weekly Civil Law Digest, which includes all weekly and monthly topics and more, for $345 per year. Subscribe to both the Criminal and Civil Law Digests- $445 per year- and you'll save $50. Quarterly indexes are also available.

Until January 1, 1997, you can hy one digest at no charge. Contact CLE's Customer Service repres­entatives at 893-2162 or 1-800-663-0437. •

15

16

There's a lot of TALK about ADR-but not much ACTION

By Karen O'Connor Coulter

Lawyer & Mediator

"Where the hell is the work?" That's the question Gordon Sloan says he and

other mediators are asking themselves these days. At this season's first meeting of the Vancouver

ADR section, Gordon, a long-time mediator and ADR trainer, spoke on the topic: Mediation, Chapter Two.

Chapter One, said Gordon, occurred in BC approximately 10 years ago when the first courses in mediation were set up and the Law Society recognized mediation as a legitimate aspect of lawyering. The task at that time was to convince people that litigation was not always the best forum in which to settle human problems.

Five years later, this task was largely accomplished. Everyone agreed that mediation was the "wave of the future," the way things would be done from then on. For instance, the federal government instituted a review of its litigation files for the purpose ofidentifying those amenable to mediation.

Unfortunately today, in British Columbia, mediation is still the wave of the future. Files remain in the filing cabinets and are not finding their way to the mediator's table.

Gordon identified two major reasons for our failure to recognize that the future is now. Although few lawyers today actually decry the use of ADR, few regard it as a default mode of settling disputes. The fact that mediation is not

Law and the Media Workshop

the expected norm coupled with an incomplete working knowledge of the process, results in the litigation and mediation processes not serving each other well. Gordon is of the opinion that, if mediation is to move into the future, initiatives must be taken at the firm level. He put forth the following suggestions:

1) firms must set up practice groups to formulate policies as to how they will use ADR within the firm;

2) those groups need to develop criteria for measuring the appropriateness of files for mediation;

3) large firms need to develop dispute resolution systems for use within the firm to facilitate early identification of the appropriate dispute resolution track for each file.

Gordon expressed the fear that, unless lawyers begin to offer a full range of dispute resolution options, the practice of law will become more irrelevant and government may statutorily deprive us of the special privilege of resolving society's conflicts. For this reason, as well as the increasingly prohibitive cost of litigation, it is a matter of some urgency that lawyer mediators begin to answer for themselves the question: "Where the hell is the work?"

By getting the files out of the cabinets and onto the table, we can offer our clients a fuller range of outcomes than the adjudicative process offers and increase their access to affordable justice.

Once again this year, the popular Law

and the Media workshop was held at

the Law Courts Inn in Vancouver. More

than 40 media representatives attended

the event, which featured an in-depth

exploration of "stalking" or criminal

harassment. Stalking victim Tammy Fee

(shown at left,) police, a psychiatrist,

and lawyers discussed the problem from

various points of view. New Chief

Justice of the Supreme Court Bryan

Williams also gave a luncheon speech

on "Independence of the Judiciary and a

Free Press: their Roles in a Free

Society."

•

BarTalk Vol.8 No. 6

Make sure you start off on the right foot with your clients It also helps if you're dancing to the same tune

David J. Bilinsky

Co-Chair, National CBA

Law Practice Management

Section

ou walk in from lunch, and wince at the pile of unanswered telephone messages that you left on your desk on your way out. Oh well, just have to do it now, you say to yourself.

Your secretary then walks in and hands you a note with the name and address of a lawyer you know little about, and says that Mr. Smith wants his file moved to this lawyer, pronto. You ask

why? and you are told that the client was tired

"Give me one reason to stay here

and I'll tum right back around.

of trying to find out what washappeningonhisfile. Oh well, you say, no sense in closing the barn door

Give me one good reason to stay here

and I'll tum right back around. after the horse has left.

Because I don't want to leave you lonely Youlookthroughthe

file for your initial letter to your client, or at least a memo to the file, setting

But you got to make me change my mind."

Words and music by Tracy Chapman.

David J. Bi/insky is a partner at Lakes Stroith & Bilinsky and con be reached on the internet at integral@direct.ca.

December 1996

forth the nature of your retainer. Hmm .. . it should be here somewhere­or did you forget to draft one? You try to recall the discussion at your initial meeting with your client-didn't you summarize the nature of the engagement? What did you say about work in progress? Disbursements? What was the billing arrangement on this file anyway? You had planned on billing on the conclusion of the file­can't do that now.

You know that there wasn't any discussion about what would happen if the client wanted to change solicitors, as you never expected this to occur. No use crying over spilled milk. You ask your secretary to pull the time and disbursements on the file and then draft a fax to the new solicitor and your ex-client affirming that you are asserting your solicitor's possessory lien over the file until paid. Later you are shocked to receive by courier from the new lawyer a

claim under s. 77 of the Legal Profession Actfor an Order that you MUST deliver the file to the new solicitor as there is urgent work that MUST be done that you left undone. Moreover, as you did not confirm the nature of your engagement with your ex-client or what happens on withdrawal, and there is a dispute over your account, the new lawyer states she has instructions to request that the Court order the delivery of the file with NO security or on such other terms as are satisfactory to the Court. She will also be proceeding to tax your account but she states that this CAN'T stop the work going forward on the file! She asks for the file to be delivered ASAP. Moreover, she has enclosed a copy of a letter written by your ex­client to the Law Society complaining about your conduct on this file. You hang your head and realize that you should have stayed in bed this morning.

Fortunately, there are several things that all of us can do to avoid falling into this hole. Let us go over the suggestions that have been put forward to start the solicitor-client relationship on a positive note:

• When we meet with our clients on a new matter, use a standardized file opening I intake sheet. These sheets serve many functions. First, they gather essential info on the client and the file. Second, they incorporate areas for noting limitation and other important dates. Third, they have an area to check conflicts. Fourth, they incorporate a checklist area that indicates whether or not you have discussed the billing arrangement and, if so, what was arranged, what happens if the client moves the file, and the like.

• For retainer letter and other precedents and further discussion on lawyers' charging and billing and in particular, possessmy liens, see

Continued over

17

PRACTICE TALK

Suzuki to speak on Cree battle against James Bay Hydro project Keynote speakers Dr.

David Suzuki, Matthew

Coon Come, Grand Chief

of the Cree of Northern

Quebec Nation and Matth­

ew Mukash, Chief of the

Village of Great Whale, will

host an evening of discussion

and entertainment on

January 16, 1997 at the UBC

Longhouse.

The University of British

Columbia Faculty of Law will

host the evening-a benefit

dinner for Power, a feature

documentary about the

James Bay Cree's epic

campaign to defeat Hydro

Quebec's James Bay II Hydro

Project.

Tax deductible tickets are

$100, which include a

performance of local First

Nations musical talent,

traditional native cuisine, a

silent auction and the

premiere showing of Power

at the Ridge Theatre.

For more information, call

Brad Foster at 984-6756 or

E-Mail : railto@xl.ca.

18

Keep your clients happy-and you'll never be alone!

Continued from page I 7

the recent CLE book Managing Your Law Firm, Chapter 5.

• Send a letter to your client as soon as possible after your first meeting, confirming that initial meeting and the rna tters agreed u pan. Furthermore, take the opportunity to set forth in writing the nature of your engagement, how you will be paid, how funds must be forwarded to the firm and held in trust for future work, what disbursements are and how and when they will be paid and how taxes impact on the fees and disbursements.

• Better yet, have a standard retainer contract that must be signed by the client prior to the initial meeting, that clearly sets forth that IF you decide to take the case, then this is the financial basis on which you would proceed. Needless to say, this will only work where the nature of the file is clearly understood before the client comes in the door.

• Unless otherwise unavoidable, don't wait until the conclusion of the file to bill it. Even in contingency matters, you should strive to have the clients, and not the lawyers, carry the disbursements. This serves as a graphic reminder to the client that the clock is ticking and the piper must eventually must be paid. Moreover, it allows them to see if the disbursements are getting too rich for their blood.

• Ask questions of your potential client during that first meeting that do not relate directly to the legal problem. Inquire as to past dealings with other lawyers, and why the client is not returning to their prior solicitor, particularly if there were several previous lawyers with good reputations. Ask what the client thought of the prior solicitor-after all, you most probably will be next! Check references, keeping in mind solicitor-client confidentiality-yours and the prior solicitor!

• Watch for warning signs, both apparent and subtle such as evasiveness, hostility, reluctance in addressing financial or other concerns, statements such as "money is not important-this is a matter of principle" or "I don't have a lot of money, but I know that this file will be a big payoff!"

• If you decide not to take the case, send a very clear letter to the client. Not being able to produce such a letter in the future could make the difference between an unfounded and easily

resolved allegation that you missed a limitation date and a letter to your insurer.

• Send a clear end-of-file letter to your client when your retainer is over or terminated. Don't leave any confusion as to whether or not you have any dangling strings on the file .

• Keep your promises. If you stated that you would do something, and the time for so doing has slipped by, call the client and tell them. Confirm the new date in writing. Better you mutually set a new date to complete the matter than allow the client to stew in their own juices while their temp goes to the boiling point.

• Practice preventative maintenance. Put all files on a periodic Bring Forward (BF) system. On the call dates, grab the files, and go thru them. Call the clients and touch bases. Discuss concerns and deadlines. Review the funds in trust and the time and disbursements on file. Ask about new developments. Call the solicitor on the other side -perhaps they are stalled and need a reminder to get on with things. Talk with your secretary­perhaps they fielded a call that they forgot to record on the file. Call your associates w ho have acted on the file and get an update. Keep the file from growing stale.

While having a retainer agreement may not stop that client from walking out the door, the attentiveness and attention to detail shown in having a retainer agreement, when applied to the conduct of the file as a whole, should give your clients at least one good reason to stay with you. After all, if you keep them happy, they will never leave you lonely. +

Dave's Top 1 0 Hot Internet Sites 1. The Internet Legal Practice Newsletter

focuses on the pros, cons and how-tos of law firm web sites. The On-Line Edition (as well as back issues) are available at: http://www.coll­egehill.com/ilp-news

To receive the E-Mail Edition, simply fill out the subscription form at the site or send a subscription request to: newsletter@college­hill.com.

2. Stephen Bird's list of law-related Internet books and newsletters has been updated. (The list is now up to 12 books, 7 newsletters and 2 related publications, including a new 2nd Edition of Lewis Eisen's "The Canadian Lawyer's Internet

BarTalk Vol.8 No.6

)

Guide.") Go to: http://www.abanet.org/lpm/ magazine/booklist.html

Remember, the focus of this list is the Internet as a technology, rather than the Internet as a field of law.

3. CataLaw is the great new searchable metaindex of legal and government resources on the Internet. It is the catalog of catalogs of law on the Internet (hence the name). CataLaw speeds research by arranging hundreds of legal and government indexes into a single, simple, intuitive metaindex. By using CataLaw, you can examine the most information in a minimum of time. Go to: http://www.CataLaw.com

4. Last issue we looked at Canada 411, the name, address, telephone and postal code searchable index for Canada (not all areas have been included-take note!!!) Here are a selection of other searchable indexes to find people, addresses and email addresses:

PEOPLE SEARCH (Phone Numbers): http:/ /w. yahoo.com/search/people/

E-MAIL: http://www. yahoo.com/search/ people/email.html

SWITCHBOARD: http:/ /www.switch­board.com/555-1212;

FOR E-MAIL ADDRESS AND PHONE LOCATOR: http://www.fourll.com/

5. Our own Cary Linde has launched his website: The Surfing Lawyer, which is billed as Canada's most comprehensive legal World Wide Web site on the Internet. The Web site features

Law for the Future Fund What do the Systems of Civil Justice Task Force, Law and Ethics in Health care and the CBA's Working Group on Racial Equality in the Legal Profession have in common? They all received funding from the Law for the Future Fund.

This Fund presents a special investment opportunity for individuals, corporations and concerned groups to make a substantial philosophical and financial investment to ensure that the legal concerns of the people of Canada are met.

The success of the Fund, and the number of research projects to receive grants, depends upon your commitment and support.

December 1996

links to legal sites of interest to both the public and Canadian lawyers, as well as Internet topics, freeware and shareware, lawyers jokes, and a variety of services to lawyers. Go to: http:// www .netlegal.com

6. The October '96 issue of the American Bar Association's Law Practice Management magazine has been delivered, and Burgess Allison's latest "Technology Update" has been posted on the ABA Network. An addition to the LPM lineup is an exciting new Internet-specific column by Erik Heels(!): nothing.but.net

LPM: http://www .abanet.org/lpm/mag­azine/lpmcontents.html

TECH UPDATE: http://www.abanet.org/ lpm/magazine/tu967.html

NOTHING.BUT.NET: http://www.aba­net.org/lpm/magazine/nbn967.html

In nothing.but.net this issue: Law-related indices. In Tech Update this issue: Disjointed tidbits just too fun to throw away-including Fear and Ignorance as an Art Form, silly computer tricks, silly telecom tricks, and silly encryption policies Also, a return of Tidbits U Can Use-including Pointcast, online maps, and prices that don't drop. Shamelessly, they take their Parting Shots at embarrassingly easy targets-politicians, journalists, and Big Telephone Companies.

In trying to deliver more than I've promised, I have hit 12 internet sites in this issue. Happy Browsing until we meet again! +

One way for every member of the CBA to show their support to Law for the Future Fund is by contributing one billable hour to the "Hourglass Campaign". The "Hourglass Campaign" is not the only way you can help. Contributions to the Fund may be made in the form of cash, securities, life insurance policies, legacies, real and personal property and inter vivos or testamentary trusts. Contributions to the Fund offer good tax and estate planning opportunities. Under the Income Tax Act, the Fund has tax exempt status as a registered charity and donors may designate, through a signed direction, that their contributions are to be held by the fund for ten years. +

19

EXECUTIVE DIRECTOR'S REPORT

BARRY CAVANAUGH,

Executive Director, BC

Branch, Canadian Bar

Association

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In the midst of reform- let us conserve the best ecent initiatives by the Government processes of ADR, we should be vigilant to ensure of British Columbia, by the Courts, that our primary motivation is to enhance access and most particularly by the to justice and fairness to all. If we can do justice Canadian Bar Association's own faster, or at less expense, that is laudable; Systems of Civil Justice Task Force, however, ifitmeans less justice, or the perception

have highlighted the growing significance of of less justice, have we accomplished any good? alternative dispute resolution processes. By We should take particular care, especially "alternative dispute resolution", I believe we when our responsibility is for the poor and the mean institutionalized or formalized processes voiceless in our society, thatourinformalizingof which are an alternative to the traditionally access to justice does not serve to perpetuate understood processes of the justice system, and their voicelessness, and does not deprive them of which to a greater or lesser degree are being the protections of which our justice system has integrated with that court-based, trial-oriented, always been so insistent. When dealing with system. powerful parties opposite, or in cases where

A great deal of" ADR" is already operating in there is an imbalance of power such as in some our system now. Many matters are resolved matrimonial matters, we should bear in mind before the commence- .---------------------, that the only resort of the

ment of trials or even " ... in cases where there is an weak is the power of the preliminary court pro- law, the formal require-

imbalance of power such as in cesses. What is relatively ments of justice. Any some matrimonial matters, we new is our interest in significant alterations to

institutionalizing the should bear in mind that the our systems of justice, be process. Significant str- only resort of the weak is the they civil or criminal, ideshavecomeinthepast power of the law, the formal needstobearthisconcern few years, culminating, requirements of justice." inmind.Fullscrutinyand at least for the CBA, in oversight of new pro-

~----------------~ the Task Force Report. cesseshas to be available. That initiative continues to have a major impact across the nation as the CBA prepares to debate the report in February of 1997 at the National Mid-Winter Meeting.

The Bar can certainly take pride in these initiatives. Literally thousands oflawyers across this country, and especially in this Branch, have devoted countless hours to this effort with the sole purpose of enhancing access to justice for the people of British Columbia and Canada. This sort of public service, of voluntary effort in the interests of our fellow citizens, exemplifies the best traditions of the Bar. Even government, which has always recognized the major voluntary contributions of the Bar in its support for legal aid, in its leadership of law reform, and in its willing involvement in a myriad of justice system, committees and structures, acknowledges that the Bar is again in the lead in the public interest. As in so many areas of our community life, our profession ennobles itself by these commitments to the public good.

I would, however, like to voice one concern. In the rush to employ all the techniques and

Having expressed this caveat, I do believe that great good will come from our efforts to make justice more relevant and practical. Too often, we hear unfounded complaints about lawyers which probably arise from people's unhappiness about what happens to them in the justice process. Asmostpeople litigate only about things which make them unhappy or uncomfortable and, as lawyers are perceived to control a system which makes them even more uncomfortable, these complaints are, if annoying, understandable. But if we cannot wave a magic wand and reverse court decisions that run against the interests of our clients, we can at least work for reforms that might make their court experience less painful.

Our ongoing efforts to improve the system of justice will surely reflect well on us in the public eye as well as in our professional ethos. And if we can truly bring about positive change in the justice system, the public of British Columbia and of Canada will owe a great debt to the volunteer commitment of our profession. +

BarTalk Vol.8 No. 6

Ann Mclean

You will see a reference in some cases to the number of the Bill when it was introduced in the House. This number may be different from the chapter number of the new Act which is quoted after the title of the Act and which is the proper citation for the Act. The Bill Number has been given to you to make it easier for you to note up the Bills you may have in your library.

Every effort is made to ensure the accuracy of the information provided to you in this article but the information should not be relied upon. Lawyers should refer to the specific legislative or regulatory provision.

December 1996

ACTS IN FORCE

Adoption Act, 1995, S.B.C. 1995, c.48, described in the June issue of BarTalk: reminder of in force date.

in force November 4, 1996

Adoption Act, R.S.B.C. 1979, c.4 is repealed.

B.C. Reg. 291196 effective November 4, 1996

BC Benefits (Appeals)Act, S.B.C. 1996, c.4, (Bill 16 ), renames the Income Assistance Appeal Board, the BC Benefits Appeal Board and provides an appeal system for appeals made under the BC Benefits (Income Assistance) Act.

Act, except paragraphs (a), (c) and (d) of the definition of "designated Act" in section 1,

inforce October 7, 1996

BC Benefits (Income Assistance )Act, S.B.C.1996, c.6, (Bill14), repeals theCommunity Resource Board Act and Residence and Responsibility Act and pro­vides for the repeal of the Guaranteed Available Income for Need Act. The Act authorizes the pay­ment of income assistance and benefits, hardship assistance and funding for training programs as well as financial assistance for programs or ser­vices which promote the purposes of the Act. The Act updates the provisions relating to the conse­quences for not searching for or accepting em­ployment and for not accepting or disposing of property and the assignment of maintenance rights. The minister is authorized to enter into information-sharing agreements with other gov­ernments and agencies for the purpose of admin­istering tax, immigration and social benefit pro­grams. The Child, Family and Communihj Service Act, S.B.C. 1994, c.27 is amended to provide that the director may enter into an agreement with a minor who cannot be reconciled with their fam­ily or who has no family to support them to provide for financial assistance. Consequential amendments are made to theCemetery and Funer­al Services Act, Evidence Act, Family Maintenance Enforcement Act, Family Relations Act, Health Act, Human Resource Facility Act, Medicare Protection Act, Mental Health Act, Municipal Act and Vancou­ver Charter.

Act, except sections 4(b) and (c), 7, 9( 1 )(e), 11 (1 )(c), paragraph (a) of the definition of "recipient" in section 14, sections 31 - 34, the portion of section35 that enacts section 68( 1 )(d)- (f) of the Evidence Act, and sections 42- 45 and 47, in force October 7, 1996

Greater Nanaimo Sewerage and Drainage Dis­trict Act, is repealed by the Municipalities En­abling and Validating Act, R.S.B.C. 1960, c.261.

section223(3) of the Act in force September 20, 1996

Guaranteed Available Income for Need Act, R.S.B.C. 1979, c.158 is repealed.

B.C. Reg. 275/96 effective October 8, 1996

Human Rights Amendment Act, 1995, S.B.C. 1995, c.42, described in the June issue ofBarTalk: the in force date has been extended.

Act, except the portion of section 4 which enacts s.24 of the Human Rights Act

in force January 1, 1997

Miscellaneous Statutes Amendment Act, 1996, S.B.C. 1996, c.13, (Bill17), amends the B.C. Forest Renewal Act, S.B.C. 1994, c.3, authorizing the appointment of up to 3 members of the Legisla­tive Assembly to the board of Forest Renewal BC.

section 2 of the Act in force November 8, 1996

Miscellaneous Statutes Amendment Act (No.4) 1985, S.B.C. 1985, c.75 amends the Municipalities Enabling and Validating Act, R.S.B.C. 1960, c.261, confirming and validating a series of agreements made by various municipalities between 1974 and 1985.

section14 of the Act in force September 20, 1996

REGULATIONS TO NOTE

Adoption Act, (a) B.C. Reg. 278178, the Adoption Act

Regulation, B.C. Reg. 372 I 89, the Assisted Adoption Regulation, B.C. Reg. 257191, the Adoption Reunion Regulation and B.C. Reg. 290 I 91, the Adoption Reunion Regulation No.2 are repealed,

Continued over

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Legislative Update Continued from page 2 I

(b) B.C. Reg. 291 I 96, the Adoption Regulation is made, providing requirements for adoption placements, establishing the birth fathers' registry, the post adoption openness registry and the passive reunion registry and providing for the functions of the registries, setting out some aspects of reports required under the Act, providing for post adoption assistance in some circumstances and setting out the requirements for adoptions under the Hague Convention on Intercountry Adoptions,

(c) B.C. Reg. 292196, the Adoption Agency Regulation is made, providing for the licensing of a society to operate an adoption agency, standards of operation and additional services which adoption agencies must make available for birth parents, prospective adoptive parents and adopted persons, and

(d) B.C. Reg. 293196, the Adoption Fees Regulation is made setting out fees

payable by adopting parents to the director .

effective November 4, 1996

B.C. Benefits (Appeals)Act, B.C. Reg. 271196, the BC Benefits (Appeals) Regulation is made, setting out the mechanisms for appeals to a tribunal from a minister's decision and appeals to the Board from the tribunal's decisions.

effective October 7, 1996

Company Act, Schedule 2, Forms 3, 4, 10, 11, 15, 16, 18, 19 and 25 are amended.

B.C. Reg. 252/96 effective November 1, 1996

Court Rules Act, B.C. Reg. 221 I 90, the Supreme Court Rules are amended as to Form 17, "Third Party Notice", setting out the time for appear­ance, which varies depending upon the location where the third party notice is served.

B.C. Reg. 304/96 effective November 8, 1996

Society Act, Schedule A, Forms 5, 7 and 11 are amended.

B.C. Reg. 296/96 effective November 1, 1996

PROFESSIONAL LIABILITY UPDATE Should you be liable for EVERYTHING because a partner errs? Lawyers, like other professionals who practice in partnership, face liability on three levels. They are personally liable for their own acts or omissions which cause damage. They are also jointly and severally liable with their partners for losses caused through their partners' fault. Further, lawyers like other defendants, are jointly and severally liable with other non-lawyer defendants for the full amount of the plaintiff's loss, regardless of the amount of fault that is attributable to the lawyers. As a result, a partner's personal assets may be at risk to satisfy 100% of a judgment, even though the partner's firm was not entirely or even largely responsible for the loss and even if the parh1er did not participate in the work conducted by the firm.

Usually lawyers carry professional liability insurance to cover their liability for these claims.

Sufficient liability insurance to cover large commercial claims is becoming increasingly expensive and difficult to obtain.

Historically, co-defendants were held jointly and severally liable since damage was found to be inseparably caused through each of their faults. Such liability has continued because it has been deemed more fair for a co-defendant to bear the risk of another defendant being insolvent than for the plaintiff not to be fully compensated. Joint and several liability among partners arose at a time when professionals only had responsibility to their clients.

The traditional professions of law, medicine and accounting were held to have a high level of responsibility to their clients, who were therefore deemed to require special protection. With the

Continued on next page

Bar Talk Vol.8 No.6

)

expansion of professional responsibility by the imposition of tort liability, elimination of the bar to a plaintiff's action due to contributory negligence and extension of professional responsibility to third parties, the risks associated with unlimited professional liability have increased. The question that arises is whether unlimited joint and several liability is still realistic in today's economic and professional circumstances.

These rna tters are of concern to the BC Branch of the Canadian Bar Association. As a result, the Branch has established a Special Committee to advise the BranchExecutiveonissuesrelatingto professional liability. The Committee is chaired by William McAllister Q.C. of Vancouver. The other members of the Committee are William Sullivan, Howard Mickelson and Neil MacLean.

Accountants are also concerned about the law relating to their professional liability. Their concerns are similar to those of lawyers. The BC Branch has been advised

In British Columbia, the Accountants have said they intend to lobby the provincial government to amend the Partnership Act to permit accountants to practice through limited liability partnerships. The result would be that the firm's assets as well as the personal assets of the partner at fault would be available to satisfy a judgment. The personal assets of the uninvolved partners would not be at risk. The Accountants also intend to lobby the provincial government to amend the Negligence Act to replace joint and several liability with proportionate liability in commercial transactions. The result would be that a defendant accountant's liability would be limited to the percentage of the total loss for which they are found responsible.

The CBA Special Committee will advise the Branch Executive on two issues. The first is the impact of the Accountants' proposals on the liability of lawyers for professional negligence and whether the Branch should support these

proposals or make similar by the Institute of Chartered Accountants of British Columbia of a national initiative by the Accountants to lobby the federal and provincial governments for changes in the laws relating to accountants' liability.

The Accountants are lobbying the federal government to include

" ... a partner's personal assets may be at risk to satisfy I 00% of a judgment, even though the partner's firm was not entirely or even largely responsible for the loss and even if the partner did not participate in the work conducted by the firm."

proposals on behalf of the legal profession. The second is whether the law relating to professional liability generally is in need of reform. The Committee will consider the public policy issues associated with joint and several liability for professionals and consider the public's

provisions in the applicable federal legislation to provide for limited liability for accountants. The Senate Committee on Banking, Trade and Commerce invited the National Canadian Bar Association to make a submission in response to the Accountants' proposals. The CBA sub­mission, made at the end of October by CBA President Russell Lusk and Chair of the Financial Institutions Committee, Alison Manzer, suggests that there is an urgent need to address the problems surrounding professional liability. However, the submission stresses that federal financial services are too narrow a focus and any such review either federally or provincially should address the need for public trust and reliance in professional services and the impact on fairness between the injured party and co­defendants. The Banking Committee was favourably disposed to the CBA views and is expected to report its findings in spring, 1997.

December 1996

interest in the matter. The Committee will review the law in other jurisdictions and legal writing on this topic. The Committee welcomes input from the Branch's members. The Committee chair, Bill McAllister can be reached in Vancouver at 687-6789. •

ADULT GUARDIANSHIP LEGISLATION UPDATE The Branch's Legislation and Law Reform Committee has received many inquiries about the status of the adult guardianship legislation, which has not yet been brought into force . Hugh McLellan, the Branch's representative on the government's adult guardianship imple­mentation committee advises that the govern­ment is still moving toward implementation of the legislation, but no date for bringing the acts into force has yet been established. We hope to be in a position to provide more specific infor­mation early in the new year. •

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BarTalk is published by the British Columbia Branch of the Canadian Bar Association, lOth Floor 845 Cambie Street Vancouver, BC V6B 5T3 TEL: (604) 687-3404

TOLL FREE: In BC, outside the Lower Mainland:

1-888-687-3404

FAX: (604) 669-9601

• BarTalk Editor: RY GLOVER DIRECTOR OF COMMUNICATIONS 687-3404 rglover@bccba.org

• Legislation & Law Reform Officer: ANN McLEAN (Victoria) (250) 598-2860 amclean@bccba.org

• Section Talk Editor: SHELLEY BENTLEY, L.L.B.

CIBC TRUST CORP. 665-1784

• Practice Talk Editor: DAVID BILINSKY, Lakes, Stralth & Bilinsky 984-3646

© Copyright the British Columbia Branch of the Canadian Bar Association-1996.

This publication is intended for informa· tion purposes only and the information contained herein should not be applied to specific fact circum­stances without the advice of counsel.

The BC Branch ofthe Canadian Bar Associa­tion represents over 8,500 lawyers within British Columbia and is dedicated to improve and promote access to justice, to review legislation, initiate law reform measures and advance and improve the administration of justice. On behalf of the profession, the BC Branch works to improve and promote knowledge, skills, ethical standards and well-being of members of the legal profession and promotes the interests of its members.

BC Branch honours members

BC Branch President Emily Reid, Q .C. presented David Roberts, Q .C. with the Branch's Distinguished Service

Award at a ceremony held in November.

Distinguished Service Award David Roberts, Q.C., was this year's winner of the Georges A. Goyer, Q. C. Memorial Award for Distinguished Service. The award was presented to him at this year's Bench and Bar Dinner, held at the Law Courts Inn in Vancouver. Roberts was honoured for his long and distinguished service as editor of the The Advocate, a publication of the Vancouver Bar Association. Previous winners have included Alec C. Robertson, Q.C.; Neil Davidson, Q.C.; the Honourable Nathan T. Nemetz; Marlene Scott, Q.C. and Donovan W. M. Waters, Q.C.

President's Medal The President's Medal of the BC Branch of the CBA was presented to two CBA members at this year's annual meeting of the Branch. They were Don Yule and Penny Bain.

Bain has been a member of the CBA and the Law Society ofBC for 22 years. She has a Bachelor of Arts and Bachelor of Law degree from the University of BC and a Master of Law degree from the University of London, London School of Economics.

She is currently the Co-Chair of the Branch's newly-reconstituted Equality Committee and Secretary of the Plain Language Section. Since April, 1995, Penny has managed the Lawyers for Literacy Project, a project of the BC Branch Plain Language Section, funded by the National Literacy Secretariat. From 1991 to 1992, she was a member of the CBA National Task Force on Legal Literacy.

Penny is self-employed as a legal consultant, specializing in justice-related strategic planning, policy development, project management and law in the schools. Her projects have included the implementation of the Ministry of Attorney General's policy on violence against women and children, strategic planning for the Ministry of Attorney General gender equality initiative and a study of family violence in the multicultural community.

Bain was a senior manager with the Legal Services Society, previously the Legal Services Commission, from 1977 to 1992. She was responsible for the planning and management of the Society's public legal education programs.

She is a former chair of the National CBA Public Legal Education Conference and former president of the Public Legal Education Association of Canada. Currently, she is a director ofWest Coast Women's Legal Education and Action Fund and the Chair of the LEAF Public Legal Education Committee. She also serves as an advisor to the Ministry of Education Social Studies Overview Committee and on the committee revising the Law 12 curriculum.

Her past awards include the Sandra Garvey Award of Merit in the field of public legal education (1992) and the Commemorative Medal for the 125th Anniversary of the Confederation of Canada (1993).

Yule received his Bachelor of Arts degree from the University ofBC in 1967 and graduated with an LL.B. from Queen's University Faculty of Law in 1970. He was called to the Bar in BC in 1971.

He currently serves as an Adjunct Professor at the Faculty of Law, UBC and is a practicing partner at Guild, Yule and Company in Vancouver. He is a member and Past Chair of the Insurance Law subsection of the BC Branch of the CBA and is a member of the Editorial Advisory Board, Continuing Legal Education Society, Practice Manual, Motor Vehicle Acccident Claims. As well, he is a member of the Joint Liaison Committee made up of Branch members and representatives of the Insurance Corporation of BC. He also serves as Chair of the Branch Fair Automobile Compensation Committee and as a member of the Automobile Accident Compensation Committee (ICBC). •

Bar Talk Vol.8 No. 6