Published by Law Courts Center and the Canadian Paralegal Institute MARCH 2015

Supreme Court of CanadaChief JusticeMcLachlin’s address to

the standing room only crowdin UBC was no surprise lastMarch 3, 2015. The audienceincluded BCCA Chief JusticeBauman and SCBC ChiefJustice Hinkson, establishedand aspiring lawyers, UBC students and the public. AllardLaw School Dean Bobinski had the unenviable task ofmoderating the hour with theChief Justice McLachlin.

The questions were varied, fromher time as a UBC professor tohow the SCC operates. Sheprovided very thoughtfulanswers to complicatedquestions like how do the ninejustices get along when they donot agree on every issue. Shecited Justice Bertha Wilson, thefirst woman justice in the SCCwho said: “ Canadians areentitled to nine different viewson the issues after each justicehas given their opinion.” Shesingled out respectful listeningas the key in how they getthrough the very complex andcontentious issues before them.

She addressed the commitmentof her courts to be open whilebalancing the need to keepcertain parts private; that it isimportant to demystify thejudiciary and to take away theaura of mystery. She meant that,spending time near the end ofthe evening explaining to ushow her courts take on cases.Patiently.

She also gave simple answers,when asked if she has anyinteractions with our primeminister. Her one word reply:no drew resounding laughter inthe room.

Invariably, being the firstwoman chief justice, genderwas a key aspect for most of thequestions. She felt that genderbalance in the courts shouldreflect our society’s verymakeup.

She spoke about how her beinga woman chief justice givesconfidence to our system wherea woman from an ordinarybackground worked her way upto become a chief justice. Sherecounted how families wouldbring their daughter to herduring Canada Day celebrations

to say, “See, we have a womanchief justice.”

Some one asked what she wasprouder of: being a judge or awoman judge? She respondedby saying both are equallyimportant. She recognized thatthe job is a big responsibilitybut that she does it as a woman.It is difficult to separate the two.

Now that there are four womenin the SCC, she reflected on thedifference between having threeto four women on her court andbeing the only woman in thecourt. She recognized thecomfort zone that womenjudges enjoy with having closeto half in the SCC as important.She reminded everyone that thewomen in her court are firstlylawyers, that their viewsrepresent that and not theirgender. Sometimes a womancan bring a different perspectivewhen issues involving familysituations are before the court.

Dispensing parenting advice,

she recognized the toll of beinga judge on parenthood. Sheencouraged everyone to parentwith love and compassion.“Invest by making time even ifyou are not able to bephysically present, becausechildren know that you aretrying. And to not beat yourselfup because children are veryforgiving. Do not give up easily.Keep on. The bad days willbecome fewer. When bad thingshappen, you have to be able toturn the page. The practice oflaw is not easy, you mustpersist. Hang in there!”

Finally in responding to myquestion on the need to havecultural diversity in the benchshe recognized that Canada is amulticultural society and thatshe hopes to see morerepresentation in the courts. Amost encouraging sign of thingsto come. !

Dom Bautista is now preparingto moderate the May 27 lecture:Does culture colour our courts?

w w w . l a w c o u r t s c e n t e r . c o mMarch 20 Modern Litigation Writing 101March 27 Document Discovery (List of Documents) 101April 9 Trust Accounting 101 / 102April 11 Uncontested Divorce Orders for TFWsApril 16/17 Civil Litigation 102

Personal Injury Spring 2015 SeriesApril 27 Medico Legal Terminologies 101April 28 MVA Active Rehabilitation Workshop:

Understanding Soft Tissue InjuriesApril 29 Managing MVA Files 103April 30 Heads of Damage 101May 1 Clinical Records Studies 101May 2 Case Planning Seminar 201

CJ McLachlin: On Gender and Cultural Diversity Part 2

Supple leatherbrief cases perfect for chambers, mediations ortrials!

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Pursuant to Rule 22-5(8)of the Supreme CourtCivil Rules and the

inherent jurisdiction of theCourt, the court, at any time,may order that proceedings beconsolidated or that they betried at the same time. Thisorder is discretionary andwithin the jurisdiction of amaster.

Deputy District RegistrarsFarrah Asin and Harjit Dhinjalfrom the Vancouver Registryadvised in their seminar“Supreme Court of BC OrdersDo’s and Don’ts for the SRL”,that BC Supreme CourtRegistries will reject ConsentOrders (Form 24) submittedfor the purpose of consolidating actions and hav-ing actions heard together if asupporting affidavit is not alsofiled which satisfies theCourt’s requirements.

This raises the following questions: what are the Court’srequirements, what factorsdoes the Court consider whenexercising its discretion andwhat facts need to be provedin the supporting affidavit toconsolidate actions or to haveactions heard together?

To answer these questions, theCourt Registries rely on thecase of Shah v. Bakken, [1996]B.C.J. No. 2836. This caseinvolved an application byShah to have two actionsheard together on the groundsthat they involved commonissues of fact and law.

Master Joyce acknowledgedthat this order was discre-tionary and that the purpose ofconsolidation was to avoidmultiplicity of proceedings.

He noted that a test oftenapplied in the exercise of thediscretion is whether there “is a common question of lawor fact bearing sufficientimportance in proportion tothe rest of the action to renderit desirable that the wholematter should be disposed ofat the same time”.

Master Joyce relied on Merritet al. v. Imasco EnterprisesInc. et al. (1992) 2 C.P.C. (3d)275 (B.C.S.C.) which heldthat an order for two actionsto be tried at the same timewas not to be determinedsolely on the basis of thecommon issues in the pleadings at the time theapplication was brought. Inthis case, Master Kirkpatrickset a test to firstly examine the pleadings in both actionsto determine whether “common claims, disputesand relationships existbetween the parties”.Secondly, one must askwhether they are “so interwoven as to make separate trials before differentjudges undesirable andfraught with problems andeconomic expense?” Toanswer the second questionone had to look outside thepleadings to ascertain certainmatters.

In applying the said test,Master Joyce dismissedShah’s application to have thetwo actions heard together,even though the same factualissues were at the heart ofboth actions.

Counsel for Shah argued thatit would be convenient andwould result in a saving oftime and money if both

actions were heard together.However, Master Joyce statedthat there was insufficient evidentiary basis to supportthis argument in the supporting Affidavit. If thetwo actions were ordered tobe heard together, an adjournment of the trial in the first action would benecessary. Master Joyce heldthat separate trials should beheld, because the resolution ofthe issues in the first actionwould go a long way toresolving the issues in the second action. Master Joycealso held that a delay in hearing the first action mightresult in substantial prejudiceto Bakken. If the order wasnot made, it might also resultin the saving of some timeand expense for both parties.

It is clear from Shah that anaffidavit in support of aConsent Order or Notice ofApplication to have actionsconsolidated or heard together needs to set out theevidentiary basis of the realissues to be determined.

The factors the Court willconsider in exercising its discretion under Rule 22-5(8)are: whether there is a common question of law orfact so that it is desirable todispose of both at the same time; avoidance of multiplicity of proceedings;savings of time and expense;inconvenience to parties;whether one action is at amore advanced stage; andwhether an order results indelay of trial and so prejudiceto one party.

The pleadings in both actionsneed to be examined to ascer-

How to have actions tried at the same time2 C I V I L L I T I G A T I O N S T U D I E S

tain whether they are suffi-ciently similar to warrant theorder sought. The Affidavit insupport should set out:

(1) what factual issues arecommon to both actions;

(2) what legal issues are com-mon to both actions;

(3) what stage of the litigationboth actions are at;

(4) whether examinations fordiscovery have been carriedout in both actions and if not,why not;

(5) whether any pre-trial pro-cedures, in particular pre-trialconferences are contemplatedor necessary;

(6) whether trials have beenset down in either action;

(7) whether a delay of a trialin one action would prejudiceany party;

(8) whether hearing theactions together will reducethe number of trial days;

(9) when it is proposed thatthe actions could be triedtogether and an estimate ofthe number of days needed,and how and why this is feasi-ble;

(10) whether there are anyparties involved which haveonly a marginal interest in oneof the actions and whetherthey would be inconveniencedby being required to attend atrial of both actions;

(11) whether the same expertsand witnesses are going to beexamined at both trials; and

(12) the cost implications forhaving both actions heardtogether. !

Clark Wilson LLP paralegalJimelle Gallagher volunteersat the Amici Curiae probonoprogramme.

Register on-line at:

WWW.LAWCOURTSCENTER.COM604.685.2727 • 150-840 Howe Street, Vancouver, BC Canada V6Z 2L2

LAW COURTS CENTER

PERSONAL INJURY SPRING 2015 SERIESAPRIL 27 TO MAY 2, 2015

Additional inormation is set out on the next page

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SIX COURSES IN SIX DAYS

SELECT FROM 1 TO 6

qApril 27 Medico Legal Terminologies 101q April 28 MVA Active Rehabilitation 101:

Understanding Soft Tissue Injuriesq April 29 Managing MVA Files 103q April 30 Heads of Damage 101q May 1 Clinical Records Studies 101q May 2 Case Planning Seminar 201

Register on-line at:

WWW.LAWCOURTSCENTER.COM604.685.2727 • 150-840 Howe Street, Vancouver, BC Canada V6Z 2L2

LAW COURTS CENTER

PERSONAL INJURY SPRING 2015 SERIESAPRIL 27 TO MAY 2, 2015

April 27 Medico Legal Terminologies 101 9AM to 5PM $548.80Monday How To Read And Understand Medical Terminologies: Medical terminology is like a puzzle: medical terms can be taken

apart and / or built up – roots, combining forms, suffixes and prefixes. Learn how to read medical records, the commonly used terms and abbreviations. You will get to learn how medical words are built. Then you will survey the following areas:basic organization of the body, the musculoskeletal system (bones and soft tissues)and the nervous system

April 28 MVA Active Rehabilitation: Understanding Soft Tissue Injuries 9AM to 3PM $262.50Tuesday At the end of the day, you should be able to:

1. learn about principles of active rehabilitation as it applies to soft-tissue injuries;2. identify what the musculoskeletal areas that should be the focus of assessments;3. using normative values understand what the appropriate amount of rehabilitation exercises should be;4. identify what makes for an effective initial assessment report; and5. develop best practices to mitigate injuries or to maximize rehabilitation costs.

April 29 Managing MVA Files 103 9AM to 5PM $548.80Tuesday An Introduction to the Preparation of an Effective File Binder: Master the mechanics of preparing your file binder;

regardless of whether you are acting for the plaintiff or defense. Learn to take advantage of the Rules of Court of the Supreme Court of BC. Gain practical experience by preparing an actual case binder.

April 30 Heads of Damage 101 9AM to 5PM $548.80Wednesday Learning outcomes:

1) understand concept of common law and stare decisis2) understand the concept and function of damages3) identify, understand and explain different heads of damage4) analyze fact patterns and assess applicable heads of damage5) identify, understand and explain factors which may affect quantum of damages

May 1 Clinical Records Studies 101 9AM to 5PM $548.80Friday How to read the most common medical records in BC:

The success of any personal injury litigation depends on the gathering and analysis of information. One of the most efficient ways of reducing hundred or thousands of pages of medical information into a concise report is by streamlining the information into a chronology You will learn how to collect the records that you need and how to overcome the many challenges associated with this task. With your records on hand, you will learn how to read each one. You will also have opportunities to discuss Glasgow Coma scores, SOAP, medications and lab tests.

May 2 Case Planning Seminar 201 9 to 11 AM $111.00Saturday Learning Outcomes:

1. What criteria to look for when first retained that will affect the conduct of the case;2. How to recognize elements ((ie novel issues, high value cases) that may develop in your case and how to ccommodate them; and3. What the key stages are in the life of a file.

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Sometimes your clientwho has beeninvolved in a car

accident lives in a long term care or rehabilitationfacility where record keeping is done using charting by exception(CBE) unlike acute facilities that use more traditional charting methods. So is charting by exception an exception?

The short answer is yes.CBE is quite different fromthe more standardized typesof clinical record keepingsuch as SOAP notes or narrative charting. And whydo you need to know aboutCBE anyway? Well, in apersonal injury or medical malpractice case,knowledge of CBE may becritical to your ability toglean relevant informationfrom the clinical record.And because there arepotential pitfalls with thistype of charting, yourunderstanding of it can bevery useful when forming achronology, looking forgaps in care, or absence ofrelevant information aboutthe patient in terms of theircare, treatment and physicalobservations.

CBE evolved in the 1980’sas the complexity of patientcare increased, more wasasked of health careproviders in the sameamount of time, and ways of streamlining documentation weresought. CBE is a method of documentation wherehealthcare providers enterinformation only whenthere is something abnormal to report (this isthe ‘exception’). If it isnormal, it is not reported.For the most part, in facilities where CBE isused, the day-to-day documentation takes place on flowcharts. Theseflowcharts may be verysimple and require onlysymbols or a tick or an x ina box. The flowcharts may record wound care,bowel movements, patientbehaviours, vital signs, etc.

You may by now be wondering how this abbreviated type of documentation can possiblyprovide all the informationneeded on a patient (client)record. Effective use ofCBE relies upon a fullunderstanding of the inter-play of the flowcharts andprogress notes in the clini-

3 P E R S O N A L I N J U R Y S T U D I E S

Charting by Exception – Is It an Exception ?cal record and timely andaccurate documentation.All health care providersmust be aware of theirresponsibilities, protocolsand standards of care. Andthis awareness comes fromappropriate directives fromthe facility administrationin terms of protocols, stan-dards, symbols, norms andother parameters. And, allhealth care providers mustbe equally diligent regard-ing their record keeping.

So what does this have todo with your case prepara-tion? Well CBE has its lim-itations and possible legalconsequences. If somethingis noted as abnormal on aflow sheet but not followedup in the narrative recordthen patient care can suffer.

Prudence suggests askingquestions like these. If the patient is regarded as‘normal’ and documenta-tion has not been done foran extended period of timedoes this mean that thepatient was neglected orthat vital information wasmissed or not acted upon?Has the staff become complacent about this typeof abbreviated chartingresulting in generally

lowered standards withinthat facility? Do the care-givers understand that nor-mal for most patients is notnecessarily normal for aparticular patient?

Documentation must takethis into account. Staff alsoneed to be aware that whatmight be abnormal formost patients may be the normal for a specific patient and thatunnecessary ‘exception’notations are to be avoided.

Most importantly, it is critical that when reviewinga clinical record one mustbe aware of the type ofdocumentation used by thefacility. And if CBE is themethod of documentationthere will be a greatereffort needed to cross reference flow sheetsagainst the progress notes,and time lines of the various flow sheets and the narrative record, to seeif there is consistency,gaps, or contradictinginformation.

In conclusion, beingunaware of the interplaybetween all the requireddocumentation in CBEcould potentially affect theinterpretation of yourclient’s clinical records. !

Pauline Barratt RN BSNMED LNC is leading theMedico-LegalTerminologies course onApril 28 2014.

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Six courses in six daysq April 27 Medico Legal Terminologies 101q April 28 MVA Active Rehabilitation Workshop:

Understanding Soft Tissue Injuriesq April 29 Managing MVA Files 103q April 30 Heads of Damage 101q May 1 Clinical Records Studies 101q May 2 Case Planning Seminar 201

Personal Injury Spring 2015 Series

This workshop has been designed to be practical and interactive – not academiclectures. Participants review many real-life exercises, individually and in smallgroups.

At the end of the day, they should be able to:q Be clear on purpose and effect;q Attend to basic correspondence etiquette;q Learn to answer the relevant questions ethically;q Learn the psychology of delivering good or bad news;q Use physical features to aid understanding;q Use modern information structure and formats;q Organize letters for highest impact; andq Conform to the Law Society of BC’s Respectful

Language Guidelines.

COURSE REPORTINGFor Law Society of BC reporting of CPD activities, this course is 7 hourslong; including 2 hours of professional responsibility and ethics, client careand relations, and/or practice management

LOCATION Law Courts Center CPD Room, 150 - 840 Howe Street, Vancouver, BCV6Z 2L2. INSTRUCTOR Ms. Yvonne Choi, legal assistant, Harris and Company LLP

QUESTIONS? Please write dom@lawcourtscenter.com or call 604-685-2727.

Yvonne Choi says:

SCHEDULE FOR MARCH 20, 2015 (9:00 AM TO 5:00 PM)Law Courts Center

Modern Litigation Writing WorkshopLearn how to write for your clients’ benefit effectively, respectfully and ethically.

“A well-written argumentcan increase yourcredibility andpersuasiveness. ”

Registration:WWW.LAWCOURTSCENTER.COM

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

q Multi-seat or Amici Curiae Rate $521.36

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

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www.lawcourtscenter.com150-840 Howe Street, Vancouver, BC Canada V6Z 2L2

Legal Education

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

For information,contact Dom Bautistaat 604.685.2727 or atdom@lawcourtscenter.com

Law CourtsCenter840 Howe ST #150Vancouver V6Z 2L2

4 M O D E R N L I T I G A T I O N W R I T I N G

Legal writing should beprecise, and thewords, each which

should be carefully selected,should mean exactly whatyou are trying to express. It is important to constructyour idea into sentences byselecting words that explainyour idea as close to indisputable as possible. By selecting simple andfamiliar words, the writerproduces a prose in whichthe reader is able to quicklyfind and comprehend thewriter’s ideas.

Here are some quick tips toachieve simple and effectivelegal writing:

1. Use Simple WordsTo achieve clearer writingand easier reading, whichmakes effective writing, prefer simple words that aredirect and strong over complex words that arepompous and confusing.Instead of “construct” or“fabricate,” you can use“make” or “create.”

2. Be Direct; Be ConciseThis can be achieved byusing active verbs and byomitting needless words. For example, this wordy sentence, “After the prosecutor conducted aninvestigation, he reached theconclusion that theDefendant was in violation ofthe law,” can be cut down to“After investigating, the pros-ecutor concluded that theDefendant violated the law.”

3. Write in Active VoiceActive voice eliminates confusion with respect towhom the subject or actor,

5. Write PositivelyIf you can accurately express an idea either positively or negatively,express it positively. Readers have an easier timeunderstanding positive statements. However, nega-tive statements can be clearand is effective when used towarn the reader. For example,“Don’t smoke!”

6. Use Short ParagraphsTo achieve clarity in yourwriting, use short, compactparagraphs. Each paragraphshould describe one idea, andif it is a complex idea, youshould present it in a seriesof related paragraphs.

7. Be ConsistentUse the same word to denotethe same thing. Instead ofsaying “Each car owner mustregister his or her motorvehicle with ICBC,” youshould say “Each car ownermust register his or her carwith ICBC.” By using a synonym, such as “motorvehicle” instead of the original word “car,” you mayconfuse the reader.

8. Review Review Review!“If I had more time, I wouldhave written a shorter letter.”

- Blaise Pascal

Simple and effective legalwriting takes time, practice,and many, many revisions. !

Yvonne Choi is a legal assistant with Harris LLP andis an Amici Curiae volunteer. She will lead theModern Litigation Writingworkshop on March 20 2015.

the person who is carryingout the action, is by its sentence construction. Thesubject or actor must be apart of the sentence in order for the sentence to becomplete.

Passive Voice: The statutehas been violated. (Bywhom? This sentence onlycovers half of your idea.)

Active Voice: TheDefendants violated thestatute.

Passive voice reverses thenatural, active order ofEnglish sentences. Passivesentences can be completewithout an actor which canleave the reader with onlyhalf your idea.

3. Use “Must” or “Will”Instead of “Shall”The word “shall” imposes anobligation to an action, however, the reader mayconfuse the word to mean aprediction of a future action.To achieve clearer writing,use “must” to impose anobligation and to indicate anecessity to act, and use“will” to predict a futureaction.

4. Write Short SentencesThe goal of legal writing isto construct readable sentences that are simple,active, affirmative, anddeclarative. Usually, themore complex the sentence,the greater the possibility fordifficulty in determining theintended meaning of the sentence. Try stating onlyone thing in each sentence,and as mentioned above, bedirect and be concise.

8 Principles to Simple and Effective Legal Writing

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On Twitter: @lccdombautista

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

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

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

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

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

COURSE REPORTING FOR CPD

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

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

INSTRUCTOR Yvonne Choi, Legal Assistant, Harris & Company LLP

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

For more information please email <dom@lawcourtscenter.com>, or call604-685-2727.

For junior lawyers, solos,paralegals and legal secretaries!

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

Law Courts Center

Civil Litigation 102

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

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

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

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

Registration:

WWW.LAWCOURTSCENTER.COM

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

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

Law Courts Center

Civil Litigation 102

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

Directions9:45 Provincial Court of BC /

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

- NCC- Response- Reply

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

and Supreme Court of BC

1:15 – 1:45 Exercise – Drafting Pleadings

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

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

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

This is what will be doing on Day 1

This is what will be doing on Day 2

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

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

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

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

© Law Courts Centre 2015 This is for educational purposes only.

Civil Litigation: Are Precedents a Double Edged Sword? There are two sides to this question:

1. The use of precedents saves time, energy, and money for the client.

2. The use of wrong precedent may end up hurting your client’s case..

While the downside of using precedents is obvious – you say: who has the time to write something from scratch. In a time-starved world, the task of pulling a precedent may be delegated to a junior staff who has not been properly trained.

Too great an adherence to the precedent as written in one case means you are not getting your client’s case exactly right. There are many ways following precedents without thinking can damage your client’s case.

• The most obvious and easiest mistake to make is to forget to change some small thing from an earlier precedent. You can forget to change;

o a part of the style of cause;

o the name of the client or the name of someone else mentioned in the precedent;

o the date of a document or hearing;

o the name of a lawyer or a judge; or

o the other information referred to in the document.

• You can diminish your client’s prospects by blindly following an earlier precedent from a different case.

• You can cause distress to your client by asking questions based on an earlier precedent that has nothing at all to do with the case at hand.

• You can lose time and money for your client and your firm by having to re-draft and re-file documents incorrectly prepared from a precedent.

• You can miss a crucial piece of information by following a precedent.

• You can ignore possibilities of stating your client’s case in the most positive way.

The toughest job in any kind of writing is the first draft, getting it on the page so it can be edited. This is true when drafting a notice of a civil claim, or any other document. Using precedents means you have something to work from, some words on the page to give you an idea of how to begin. But you have to always remember, that precedents give you a place to start, not finish.

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austin\brie

Because a precedent sets your mind to working in a specific way – the words are set out in front of you, the form and chronology is fixed, the manner in which the information is set out is fixed - ignoring other aspects or ways of presenting the case at hand is a very real possibility.

Assume you have to prepare a first draft of a notice of application, an affidavit and an outline for compelling the production a list of documents. You did the same thing only a couple of months ago so you pull those documents and begin preparation of the current one. But in the present case, the facts are quite different. The notice of application is straightforward. You change the affidavit to reflect the current facts, but you forget to change the outline to conform with the affidavit. This is the kind of mistake that often happens when using precedents. Do you feel that this mistake is avoidable?

Using precedents can be a risky business but it also saves time, energy and money. Law firms do not want to be reinventing the wheel each time they draft a document because there are cost implications. So the trick is to learn to use precedents carefully and correctly. Consider these best practices:

• read them carefully and assume nothing;

• delete what doesn’t relate to your client’s case;

• edit what remains to conform to your client’s case; and

• add the information unique to your client’s case.

In the end, precedents are a good thing, if used correctly. Your job is to ensure that you consider all the possibilities. Read every word of the final document to make sure each aspect relates to the case at hand, and never take anything for granted when using precedents.

Join Dom Bautista and Yvonne Choi when they present Civil Litigation 102 on April 16 and 17 2015. To register click here.

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

INSTRUCTOR Gerrie Campbell, Senior Paralegal

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

For more information please email <dom@lawcourtscenter.com>, or call 604-685-2727.

Law Courts Center150 - 840 Howe Street, Vancouver BC Canada V6Z 2L2 1503 B!

REGISTER ONLINE:www.lawcourtscenter.com

REGISTRATION (INCLUDES GST #128573300)

q Single Seat $548.80

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

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

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For junior lawyers, solos,paralegals and legal secretaries!

SCHEDULE FOR FRIDAY MARCH 27, 2015 (9:00 AM TO 5:00 PM)Law Courts Center • Canadian Paralegal Institute

Document Discovery A PrimerBUILD YOUR FOUNDATIONS IN PREPARING LISTS OF DOCUMENTS PURSUANT TO RULE 7-1

“Let us examine thefundamental principlesand techniques forpreparing list ofdocuments that areefficient and effective!”

At the end of your studies, you will:

• understand the purpose of listing documents in Form 22

• understand the obligation placed on counsel to list documents pursuant to Rule 7-1

• be able to identify a document in its various forms

• be familiar with the circumstances in which it is appropriate to list groups of documents

• be able to prepare a relatively simple list of documents

• be able to recognize potentially privileged documents

• understand the ongoing obligation to disclose documents

• be able to revise a list of documents

• be able to prepare an amended list of documents

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

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

Has the scope of discovery narrowed under the SCBC Rules?

Law Courts Center150 - 840 Howe Street, Vancouver BC Canada V6Z 2L2 1503 B!

In the case of More Marine Ltd. v.Shearwater Marine Ltd 2011 BCSC166 (http://www.canlii.org/en/

bc/bcsc/doc/2011/2011bcsc166/2011bcsc166.html), the Honourable Mr. JusticeN. Smith considers the scope of thequestions that may be asked of adeponent on oral examination fordiscovery.

On December 7, 2010 an examinationfor discovery of William Bonar, aclaims adjuster employed by thedefendant, Continental CasualtyCompany, was conducted by thepresident of More Marine Ltd., KerryMorris, who was acting on theplaintiffs’ behalf.

During the course of the examinationMr. Bonar’s counsel objected to anumber of questions. In addition, Mr.Bonar did not know the answer to anumber of questions and he wasrequested to inform himself or providefurther documents.

In the case at bar, the plaintiff sought anorder requiring the continuation of theexamination for discovery andcompelling answers to certain questions.

In his reasons, Justice Smith noted thatunder the former Rules the duty todisclose documents and the duty toanswer questions on oral examinationwere controlled by the same test forrelevance, which was set out inCompagnie Financière du Pacifique v.Peruvian Guano Company (1882), 11Q.B.D. 55 at 63 (C.A.).

While the former Rule 26 (1) required aparty to list all documents relating toevery matter in question in the action,the new Rule 7-1 (1) sets the obligationfor initial document discovery morenarrowly:(1) Unless all parties of recordconsent or the court otherwiseorders, each party of record to anaction must, within 35 days afterthe end of the pleading period,

(a) prepare a list of documents inForm 22 that lists(i) all documents that are or havebeen in the party’s possession orcontrol and that could, if available,be used by any party of record attrial to prove or disprove a materialfact, and(ii) all other documents to whichthe party intends to refer at trial,and

(b) serve the list on all parties ofrecord.

With respect to oral discovery; however,the court noted the rule that sets thescope of proper questioning on anexamination for discovery is exactly thesame in the new Rules as it was in theold Rules, which is as follows:

Unless the court otherwise orders, aperson being examined for discovery

(a) must answer any question withinhis or her knowledge or means ofknowledge regarding any matter, notprivileged, relating to a matter inquestion in the action, and

(b) is compellable to give the namesand addresses of all persons whoreasonably might be expected to haveknowledge relating to any matter inquestion in the action.

This means that even though the scopeof document discovery may havechanged the scope of relevancy at anoral discovery remains as that set out inPeruvian Guano:

It seems to me that every documentrelates to the matters in question in theaction, which not only would beevidence upon any issue, but also which,it is reasonable to suppose, containsinformation which may -- not whichmust -- either directly or indirectlyenable the party ... either to advance hisown case or to damage the case of hisadversary. I have put in the words

“either directly or indirectly,” because,as it seems to me, a document canproperly be said to contain informationwhich may enable the party ... either toadvance his own case or to damage thecase of his adversary, if it is a documentwhich may fairly lead him to a train ofinquiry, which may have either of thesetwo consequences...

With respect to objections made atdiscovery the court quoted fromCominco Ltd. v. Westinghouse Can Ltd.(1979), 11 B.C.L.R. 142 (C.A) saying,“rigid limitations rigidly applied candestroy the right to a properexamination for discovery.”

Justice Smith believed that, even thoughthe test for relevancy is the same, thenew Rules impose limitations on oralexamination for discovery through Rule7-2 (2), which now limits anexamination for discovery to sevenhours or to any longer period to whichthe person being examined consents.

Justice Smith noted that under this Rule,“there is a greater obligation for theparty being examined to avoid undulyobjecting or interfering in a way thatwastes the timeavailable.”

In conclusion, Justice Smith found thatbecause Mr. Bonar had been asked toinform himself on various questions andbecause the seven hour time limit hadnot expired, it was proper for theexamination for discovery to continueand he made that order. He alsoextended the time left on discovery toaccount for the objections andarguments for objections.

In coming to his conclusion JusticeSmith did not comment on each of thequestions but gave counsel a generaldirection for how the continueddiscovery should go. He found that mostof the questions were appropriate andrelevant even if they were not properlyworded. !

L AW C O U R T S C E N T E R

ENCORE SERIES: Curated just for you, topics devoted entirely to

TRUST ASSURANCE & TAX ON LEGAL SERVICESApril 6 to 8, 2015

View them in the comfort of your own office

REGISTER: www.lawcourtscenter.com

Law Courts Center 150-840 Howe Street, Vancouver, BC Canada V6Z 2L2 1503

Tax on Legal Services Recorded Lecture (TLS 102R) 6 April 2015 1:00 PM Representatives from the Canada Revenue Agency (GST) and the Ministry of Finance (PST) will explainwhen their taxes apply to legal services; how to be ready for audits; and many more.

CPD 2.75 hour including 2.75 hours for professional responsibility and client relations.Fee: $288.75 per person

Trust Accounting Recorded Lecture: A year-end update (TAL 103) 7 April 2015 3:00 PM LSBC Manager of Trust Regulation Felicia Ciolfitto will help you get current on the changes that havetaken place in the trust accounting rules; and get a glimpse of notable exceptions that have arisen fromcompliance audits.

CPD 1.5 hours including 1.5 hours for professional responsibility and client relations.Fee: $157.50 per person

Trust Assurance Management Recorded Lecture: Trust Accounting Internal Controls: What do youneed to know? (TAM 103R) 8 April 2015 1:00 PM LSBC Manager of Trust Regulation Felicia Ciolfitto will help you understand what is meant by internalcontrols; the benefits of internal controls; and develop or update your firm's internal control procedures.

CPD 3 hours including 3 hours for professional responsibility and client relations.Fee: $288.75 per person

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

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

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

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

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

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

SCHEDULE FOR APRIL 9, 2015 (9:00 AM TO 5:00 PM)Law Courts Center

Trust Accounting 101 – From Fundamentals to Best Practices

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

Course Fees: (course materials and GST 128573300 included) q Single In-Person Seat (TRA 101) $576.25

q Single Webinar Seat License (TRA 102) $576.25

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

1501 B!

LOCATION Law Courts Center CPD Room 150 - 840 Howe St, Vancouver BC V6Z2L2

INSTRUCTORS:

KRISTA ADAMEK Law Society of BC Trust Regulation Department Auditor

DOM BAUTISTA Law Courts Center Executive Director

CHARLES NIP Law Society of BC Trust Regulation Department Auditor

Trust Accounting 101 - From Fundamentals to Best Practices

These are learning outcomes for this course:

At the conclusion of this the course, including the completion of all pre, in-class and post-course work, the participants should be able tocompetently:

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

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

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

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

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

Current to: 2/24/15

Title Code Last Updated PriceBC Civil Litigation Guide v9.0 BCCLG 140625 750Bill of Costs 101 BOC 101 130701 225Business Corporations Act 101 BCA 101 130808 225Case Planning Procedures CAP 102 120108 225Chambers Application Procedures CHA 101 140801 225Civil Litigation 102 CIV 102 131122 225Clinical Records 101 CRS 101 131203 225Conveyancing 101 CON 101 130701 225Discovery Procedures 101 DIS 101 130601 225Document Disclosure 101 DOD 101 130531 225Drafting Applications Workbook DAW 101 140801 225Family Chambers Applications Procedures 101FCAP 102 140331 225Family Litigation 102 FAM 102 150215 225Fast Track Litigation FTL 101 110421 225Heads of Damage 101 HOD 101 130415 225Law Office Management 101 LOM 101 111201 225List of Documents 201 LOD 201 120500 225Litigation Practice Basics 101 LPB 101Litigation Project Management 301 LPM 301 140624 100Managing MVA Files 103 MVA 103 140125 225Part 7 Benefits 101 P7B 101 140501 225Personal Injury Book of Letters PIBL 120500 225Personal Injury Studies 201 PIS 201 130601 225Pleadings 101 PLE 101 120430 225PST & GST FAQs for BC Law Firms TLS FAQ 150115 160Tax on Legal Services Recorded Lecture TLS 103 130228 125Trial Preparation for Defence Firms TPD 101 120500 225Trial Preparation for Family Law 101 TPF 101 130601 225Trial Preparation for Plaintiff Firms TPP 101 101115 225Trust Accounting 101 TRA 101 101028 225Trust Assurance Management Recorded Lecture Handling Unclaimed Trust FundsTAM 10v 120329 125Trust Assurance Management Recorded Lecture Trust Accounting Internal ControlsTAM 102v 130712 125Trust Assurance Seminar Recording TAS 102v 130328 300