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

Almost the same time asUniversity of OttawaProfessor Dodek

published his paper, RegulatingLaw Firms in Canada, in 2012,British Columbia’s LegalProfession Act was amended toallow our law society to expandits powers to regulate lawfirms. Shortly after that, theLaw Firm Regulation TaskForce was formed and lastDecember 2013, it tendered itsreport. Since then, the taskforce has produced a succinctone page statement of objec-tives which was presented atApril 2015 benchers meeting.

Professor Dodek believes thatlaw societies have to regulatefirms: In Canada, the regulatory focus of law societies has always focused onthe people who provide legalservices rather than on thevehicles through which legalservices may be provided. Thetraditional model of the deliv-ery of legal services then wasthe sole lawyer in private practice. However, law firms ofall sizes are now omnipresentin the Canadian legal profes-sion. Law Societies should reg-ulate law firms. They should doso primarily on the basis of

ensuring public confidence inself-regulation and respect forthe Rule of Law and only secondarily out of concernsregarding public protection.

The practice of law has evolved— there are decisions that arenot traceable to one lawyer butare agreed upon by the partners(or committees), or where theaction is even undertaken ordirected by non-lawyers. In thetrust accounting course that Iteach, I list these five notewor-thy areas: advertising; supervi-sion of articling students; delegation of work to staff;billing and trust accounts.

The task force intends to provide proactive policies andpreventative procedures, and it will be encouraging its members to adopt best prac-tices so they can better meettheir obligations to the public.

The thirteen person task forceprovides a cross section fromdifferent sized firms and geographic locations acrossprovince.

The chair of the task force, Mr Van Ommen, QC, in recognizing the need to balance

the new rules without being tooonerous, hopes to be able toreduce the number of low levelcomplaints. He also hopes thatfor the people who will needthat little bit of extra help, willbe able to get it from their firm.

In the next few months, thetask force plans to create adraft regulatory framework forsuch entities:

1. to enhance the regulation of the legal profession byexpanding the regulatory horizon beyond individuallawyers to include the entitiesthat provide legal services; 2. to enhance regulation byidentifying areas of responsibil-ity for law firms that reflect theimportance of their role and byidentifying opportunities forthe development of standardsfor centralized functions thatsupport the delivery of legalservices, such as conflicts management and accounting; 3. to engage law firms in ensuring compliance with regulatory requirements andefforts to maintain and, if necessary, to improve the professional standards and

competence of lawyers whopractise in the firm; and 4. to establish responsibilitiesfor communication, both withinlaw firms and between firmsand the Law Society, to ensureappropriate attention is brought to all matters involvingregulatory standards and professional obligations.

There is still more work to do,but President Walker, QC,wanted to make sure that thebenchers had a heads up beforethe task force turns in its rec-ommendation a few monthsfrom now.

I hope to share my researchnext month on how BC com-pares to the rest of Canada.

April 2015 has been a verybusy month as far as trustassurance is concerned. To learn more about the impli-cation of regulating law firms,join us as we present TrustAccounting 101 in Kelowna onJune 19 and in Vancouver onSeptember 9, 2015. !

Dom Bautista is the executivedirector of Law Courts Center.

w w w . l a w c o u r t s c e n t e r . c o mMay 12 Lecture: Family Orders Do’s & Don’tsMay 15 Modern Litigation Writing WorkshopMay 29 Medico Legal Terminologies 101June 2 Lecture: Does culture colour our courts?June 9 Workshop: Legal Research and SRLsJune 11/12 Civil Litigation 102June 19 Trust Accounting 101 (Kelowna)June 29 Part 7 Benefits 101September 9 Trust Accounting 101 / 102

Regulating Law Firms: BC Rules Coming Soon

Supple leatherbrief cases perfect for chambers, mediations ortrials!

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

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

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

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

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

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

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

Trust Accounting 101 – 3 Significant Trends

1. Effective July 1 2015 a number of lawsociety rules have been re-numbered.Keep current.

2. Read the list: 7 hearing decisions inthe month of April alone. Which ofthese involve trust accounts?

3. What students in Trust Accounting101 have heard me say for two years ...law firms, not just lawyers, are going tobe regulated. How will this impact you?

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

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

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

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

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

1505 B!

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

INSTRUCTORS:

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

DOM BAUTISTA Law Courts Center Executive Director

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

B!201505

Last February 19, 2015,three Canadian judgesshared their views on

gender and cultural diversity.Following Justice Omatsu,Associate Chief Judge NancyPhillips of the ProvincialCourt of British Columbiashared her insight of being ofmixed racial heritage andgrowing up in Nelson, BC.She shared her story of tryingto identify with either one orthe other culture, and morespecifically, described herexperience growing up in ageneration where people hadnot grappled with being faceto face with an ‘other’, andlearning how to embrace thesame. She believes that thereis an imperative for culturalawareness in society. It is herbelief that as individuals and,especially as individuals living within the context of amulticultural society, that wenot lose touch with our community.

Citing the recent events inFerguson, Missouri, JudgePhillips asked why the worldat large found this particularincident so compelling. Shepostulated that things will goprofoundly wrong when we alllive together but we do notunderstand each other.Acceptance is one thing; butmaking a concerted effort toventure into a different perspective to become betterinformed of our side-by-sidecounterparts would welcomesuch diversity and perhaps bean important stepping stone toactually becoming unified.

Society needs to rely on thejustice system to be fair toeveryone. Ferguson shouldteach us that a legal systemthat is prejudiced cannotappropriately function or hold

itself out as such since it isinherently flawed. JudgePhillips enunciated this succinctly: that we shouldtake any opportunity we canto ensure that our system iscredible. The justice systemwill depend on every aspect todelve into pursuing insightsinto where the other peopleinvolved are coming from.For the courts to be respected,judges, masters and registrarsall need to try to understandthe people that come beforethem – not as a person who is different from themselves in either sex, race, socioeco-nomic status or otherwise, butas an equal before the law.

She went on to reference the2012 decision regardingaccepting testimony fromsomeone wearing a niqab forreligious reasons. From oneperspective we see that credi-bility of testimony is oftenassessed through non-verbalcommunication, and the wearing of the niqab mayobstruct those particularlytelling cues. However, as asign of faith, the woman’sfreedom of expression andreligion enter into the equa-tion as an intrinsic humanrights issue. It is about tryingto understand each other andthe reasons behind our valueswithout being formulaic inour approaches. Regardlessof whether the courts mustmaintain that they are religiously neutral, the courtsmust simultaneously respecteveryone equally. It became astruggle between offeringpeople to ‘come as they are’and the capability of the issueimpinging upon properly evaluating a case for its merits. She noted that this is a balance betweenaccommodating and applyingan informed approach when-

ever possible. Instead ofdrawing an unsound conclu-sion due to an unconsciousbias, we need to look furtherthan what we see with onlyour eyes, and instead question‘why’, rather than asking thequestion of ‘who’. She suggests that judges shouldtry to understand the person.This can peer into the facts asa way of better understandingthe person in front of themrather than relying on pre-conceived notions basedoff of stereotypes. Peopleoften come across differentlydue to their inabilities to adequately express themselvesdue to language deficienciesor misconstruing culturalnorms, and we need to seebeyond those constricting limits.

This also points us to the significant issue of people,and perhaps society in gener-al, skirting around issues ofgender or cultural bias. If wecan dismiss these problems soeasily by not addressing themand not giving them valuableconsideration, then we willend up perpetuating a cycle inwhich equality cannot possi-bly be attained.

Credibility. That one wordsummed up her reasons why itis imperative that personsworking in our justice systemmust be mindful of culturaldifferences and backgroundsindividuals involved in thesystem bring with them.

But before she stepped down,she told a very poignant storyabout Chinese grandfather,Grandpa Yee. She had sharedthis with me before in one ofmy visits with her and I hadhoped that she would share itwith the audience.

3 Judicial Views: On Gender and Cultural Diversity Part 22 L I T I G A T I O N

Growing up, Judge Philipsnever quite understood whyher Grandpa Yee never attended her uncle’s hockeygames. It was not much laterthat she learned of the realreason, for Grandpa Yee didnot speak English and wasterrified about being asked tospeak in English or to discusshockey. A humble man, he didwhat many Chinese are wontto do, which was to avoidpotentially awkward momentsby choosing not to show up.This personal experience con-tinues to help her today.

Judge Phillips added: “Askingthe WHY is not necessarilyeasy to ask because we aretrying to get things done giventhe time pressure. Sometimes,it is good to just slow down abit, even if we do not have asmuch time to ask questions allthe time, we can at least asksome questions to try andunderstand why people actedthe way they did. It will helpus arrive at conclusions thatare more sound.” !

This article concludes nextmonth. The recorded versionof this lecture is available.Dom Bautista is now preparing for the June 2 lecture: Does culture colourthe courts? Stacie Gin, parale-gal at Heritage Law assistedhim in writing this article.

Judicial impartiality and cultural sensitivity: a dichotomy? How can judges maintainimpartiality and the appearance of impartiality when conducting proceedings so asto assure equality under the law, and remain informed about changing attitudes and

values specially when the parties appearing before them come from different cultures?Are we creating a tiered justice system when we give consideration and deference to thesecultural challenges? These and many other questions will be addressed by ourdistinguished panel on June 2 at 5:30 pm at the Justice Education Society.

A question and answer period has been set aside after our panelists have spoken.

Proceeds from this event will fund the Temporary Foreign Worker Uncontested Divorceproject of the Amici Curiae Probono Paralegal Programme. CPD hours: 1.5.

Provincial Court of BC Judge Shehni DossaJudge Dossa's remarks will assist in identifying one’s own culturalbiases and in understanding intercultural communication styles andcontextualize the reality of testimony presented through interpretersin Canadian courtrooms.

William Smart,QC Using his perspective as a criminal defence counsel, occasionalprosecutor and former judge, Bill Smart will focus on the challenges our multicultural society poses for the Canadian criminal justice system.

Law Courts Center June 2 at 5:30 pm at the Justice Education Society

Views from the Bench: Does culture colour our courts?

The challenges of a multicultural courtroom

RATES: (any materials will be provided electronically and taxes included) GST R128573300q Single Seat Rate (limited to 50 seats): $ 78.75q Webinar License Per Person: $ 78.75

REGISTER: www.lawcourtscenter.com

PAYMENTS Please make the cheques payable to Law Courts Center and return to: Law Courts Center 150 - 840 Howe Street, Vancouver, BC V6Z 2L2.

For more information please email <dom@lawcourtscenter.com>, or call 604-685-2727. v1505

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 REPORTING

For 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 MAY 15, 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

1505 B!

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

Here is a sample of the pre-assessment questions.

Please complete the following questions to the best of yourability. No examples will be given. Read and follow eachinstruction carefully.

Directions for questions 1-3Rewrite the sentence in your head following the directionsgiven below. Keep in mind that your new sentence shouldbe well written and should have the same meaning as theoriginal sentence.

1. If I want your opinion, I will ask for it.Rewrite, beginning with

I won’t ask for your opinionThe next words will be:A. if I want itB. when I want itC. although I want itD. unless I want it

2. The Plaintiff smacked her head on the wheel when shehad to slam on the breaks.

Rewrite, beginning withHaving to slam on the breaks,

The next words will be:A. when the Plaintiff smacked her headB. even though the Plaintiff smacked her headC. the Plaintiff smacked her headD. he smacked her head

3. After you serve somebody with Court documents, youhave to swear an Affidavit of Service.

Rewrite, beginning withYou have to swear an Affidavit of Service

The next words will be:A. unless you served somebody with Court documentsB. having served somebody with Court documentsC. because you served somebody with Court documentsD. serving somebody with Court documents

Directions for questions 4 - 5Read the statement or passage and then choose the bestanswer to the question based on what is stated or implied inthe statement or passage.

Our firm acts for New Technology Software Inc., (“NTS”).We have been instructed to reply to your letter dated April13, 2015 regarding the outstanding issues between NTS andyour client, Brooke Bradson. Kindly direct any furthercommunications regarding this matter to our office.

The offer of settlement in your letter exceeds Ms. Bradson’slegal entitlement by a significant margin. It is notacceptable to our client.

We will address the outstanding issues in the order in whichthey appear in your letter.

4. The objective of the paragraphs is:A. to begin legal proceedings against NTSB. to begin legal proceedings against Ms. BradsonC. to begin negotiations between the parties D. to reply to a letter

5. The tone is:A. informal and cooperativeB. formal and cooperativeC. informal and contentiousD. formal and contentious

Write me if you are interested in taking all. !

Modern Litigation Writing 101 Pre-Course Assessment

9:00 Introductions9:15 Letter Components and Form9:30 Lists for Clarity9:45 Paragraphing10:00 Layout for Effectiveness10:15 Coffee break10:30 Body of Letter10:45 Reader/Writer Logic 11:00 Organization and Sequence11:30 Putting it all together12:00 Lunch (on your own)

1:00 Purpose and Action1:15 Reference Resources1:30 Client-Friendly Vocabulary 2:00 Passive vs Active Language2:30 Overcoming Negativism3:00 Coffee break3:15 Tone and Courtesy3:45 Reader Psychology4:15 Writing for Results4:45 Farewells, Evaluations

This is what we will be doing for the day........

Imagine, for a moment,that a loved one has beenadmitted to hospital for a

routine hip replacement sur-gery. Ina, your relative, hashad her share of health complaints but has managedto live independently. Inadoes have a few memorylapses, and her accent is a little difficult to understandbecause after immigrationfrom Europe she was a homemaker and learnedEnglish at home, from thefamily.

Now Ina is in hospital and the admitting physician haswritten up her admissionorders and diagnoses. It’s justtoo bad that this physician haseven worse handwriting thanthat which the unit clerk usually sees. But she isskilled and has spent manyyears sorting out poor handwriting. So she goesahead and transcribes theinformation and the orders.Of course the physician haswritten DAT, which means‘diet as tolerated’, as well asother orders. And on theadmission note he illegiblyscribbled “�▲❅❖❅❒ ❅

❄❙▲❐❈❁❇❉❁�✎”. Theclerk had a very difficult timereading this phrase but sheworked out the first word as‘severe’. And finally shedecided that the second word

is ‘dysphasia’ (difficultyspeaking), a diagnosis evidenced by the fact that shehas heard the patient speakand the patient is definitelyvery difficult to understand.So the clerk goes ahead andtranscribes the orders and thedietary requisition. Then sheleaves the documents to beinitialed by the patient’s registered nurse (RN).

Tom, the RN, has had a busyday as usual but he knows hemust initial the documentsbefore the orders can beacted upon. So he quicklyscans the orders and theadmission diagnoses, and initials the orders.

That night, the patient’s dinner is brought to her bed-side. DAT (diet as tolerated)tonight is crumbed chickenbreast, mashed potato, andpeas. Ina, tired from a stressful day, decides to doher best to eat. Minutes laterIna is found gasping forbreath, turning blue and panicking. She has choked onsome chicken and peas. Staffcall a code blue and quicklyrespond to Ina’s distress.However some of the foodhas gone deeply into her respiratory tract and sherequires special procedures toremove it.

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

Legal Implications of Medical Documentation ErrorsThe consequences for Ina?Her hip replacement surgerywas cancelled, and she spenta week in intensive carebecause of the aspirationpneumonia that resulted fromher choking.

The cause? 1/ A physician’spoor handwriting in which hewrote ‘severe dysphagia’ (difficulty swallowing) butwhich was almost illegibleand thus interpreted as‘severe dysphasia’. 2/ A busyunit clerk who incorrectlyinterpreted the handwritingand did not check with thephysician. 3/ A busy RN whorushed through initialing theclerk’s transcriptions andorders. And 4/ the dieticianwho would normally try tovisit each patient to find outwhat ‘diet as tolerated’ meantfor them and what their foodpreferences were. However,that day there were so manyadmissions and special dietsordered that the dietician hadno time for bedside visits soIna received the standardmeal for dinner.

The long-term outcome?Well Ina’s family sued thephysician, the hospital, andthe staff for negligence, andthey won. There are nodefensible excuses for illegible handwriting (thephysician), omitting checkingmedical information that isconfusing or cannot be read(the clerk), or rushingthrough checking a unitclerk’s transcribing withoutdue care and attention (theRN).

The above case, while fictional, is very plausible.Medical errors occur on adaily basis and a proportion

of those errors are the result of misspelling, illegiblehandwriting, transcriptionerrors, and other documentation issues.

What best practices can weadopt when reviewing a clinical record? Well, firstone should never assume that what was written in theemergency intake form or the admission record wastranscribed correctly. Check all transcriptions foraccuracy. Check that allphysician orders were actedupon correctly and in a timely manner. Questionabbreviations. Do they meanwhat was intended or werethey misinterpreted? Are theabbreviations even ones thatare sanctioned by the healthcare facility? A colleague ofmine once questioned theabbreviation BWD on a chartof a deceased patient only tobe told by the physician thathe meant “bloody well dead”,a term that is unacceptableand disrespectful.

Write me if you wish to getthe second half of my articlewhere I am going to focus on medical terms and abbreviations that can be easily misspelled, confused,or can result in errors in terminology. !

Pauline Barratt RN BSNMED LNC is leading theMedico-Legal Terminologiescourse on May 29, 2015.

B!201505

On Twitter: @lccdombautista

Trial PaperAvailable in 2 sizes:

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

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

B!201505

Law Courts Center www.lawcourtscenter.com 150-840 Howe Street, Vancouver, BC Canada V6Z 2L2 1505 B!

REGISTER ONLINE:

www.lawcourtscenter.com

REGISTRATION MLS 101 (INCLUDES HST #128573300) For more information please call 604-685-2727.

q Single seat Rate $548.80

q Multi-seat or Amici Curiae Group Rate $521.36

Medical terminology is like a puzzle: medical terms can be taken apart and / or built up – roots,combining forms, suffixes and prefixes. The learner will …

1. Construct and deconstruct selected medical terms relating to body systems, procedures,diagnoses, medical specialists, body or body part positions and measurements, by using prefixes,suffixes and combining vowels.

2. Demonstrate understanding of bodily movements.

3. Illustrate the anatomical aspects of the body in terms of planes, directions and positions.

4. Classify diagnostic and imaging tests according to their descriptions, names andabbreviations.

5. Describe the structures and functions of the musculoskeletal and nervous systems.

6. Identify basic pharmacological principles and practices that relate to medicationadministration for personal injury clients.

7. Summarize relevant aspects of the client clinical record as it relates to medicaldocumentation.

8. Generate plain language versions of medical record entries from both handwriting and textsamples.

9. Create and perform scenarios depicting selected medical terms and abbreviations relating tobody systems, procedures, diagnoses, medical specialists, body or body part positions andmeasurements by using prefixes, suffixes and combining vowels.

COURSE REPORTING FOR CPDThe Law Society has pre-approved 7.0 course hours towards your ContinuingProfessional Development requirements and 0 hours towards ethics & practicemanagement.

Location Law Courts Center, 150 - 840 Howe St, Vancouver BC V6Z 2L2

Instructor: Pauline Barratt BSc, MEd, RN says: Medical terms are not a foreign language! It is quite easy once youknow what the rules are. Let me show you how!

MAY 29, 2015 9:00 AM TO 5:00 PMLaw Courts Center

Medico- Legal Studies 101HOW TO READ AND UNDERSTAND MEDICAL TERMINOLOGIES

Legal Education

Trial Brief Preparation

Legal Printing & Legal Supplies

legalpresents.com

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

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

Law CourtsCenter840 Howe ST #150Vancouver V6Z 2L2

4 C I V I L L I T I G A T I O N

During the course of anaction, there may besituations when the

court will become involvedbefore and after the trial.Consider: case planning conferences, trial managementconferences, and applicationhearings. In each of theseinstances, a master or judgemay make a decision that willaffect how the action will proceed. For the court decision to be enforceable, anOrder must be prepared andfiled with the court Registry.

Simply stated, an Order is adocument that sets out thedecision made by the court andtells a party to do something(or to not do something). Oncea judge or master grants anorder, it is enforceable. Justbecause it is not yet in writingnor entered in the courtregistry does not mean it is noteffective. This is important tokeep this in mind as any timelimitations included in a termof the Order (e.g. "Producewithin two weeks from thedate of this Order") start theminute you walk out of thecourtroom, and not necessarilyfrom the time you receive anentered copy of the writtenOrder. A party’s failure tocomply with the terms of theOrder will be subject to thecourt’s discretion.

Orders must be prepared usingForm 35 – Order Made AfterApplication. For example, aCase Plan Order must be pre-pared using Form 21, whereasan Order After Trial must beprepared using Form 48.

Next, it is important that allaffected parties attend thehearing, as they are the onlyones who are given the chanceto review the Order for accura-cy. When a party of recordapproves the Order, then theapproval is indicated by theparty’s signature on the Order.

On the other hand, the courtcan dispense with a party’ssignature altogether if a partyof record has not filed aresponse in the action,. Forexample, on a Consent Orderto dismiss an action, if a partynamed in the action has notfiled a Response to CivilClaim and has not participatedin the proceedings, then theConsent Order can set out that“The Defendant has not filed aResponse to Civil Claim in theproceedings” hence explainingwhy the party of record’sapproval has not been provided.

In a case where a named partyto the action has not filed aresponse to the pleadings, theCourt can dispense with thatparty’s signature altogether, forany consent orders or ordersafter application that arise inthe matter. In failing to file aresponse to the pleadings, anamed party ceases to be a“party of record” and they areeffectively telling the Courtthat they take no position onthe outcome of the matter inits entirety. For example, on aconsent order to have a mattertransferred to another registry,only parties of record will beafforded the opportunity to

The written form of Order is best prepared by the suc-cessful party, and it accuratelystates all of the items grantedby the court. If there is anydiscrepancy between parties inthe wording of what isordered, the parties must con-sult the clerk's Notes, whichare available at the registry.

It is imperative that the Orderbe prepared correctly. If anOrder fails to comply with the Supreme Court Rulesand/or Practice Directives, the Registry may reject thedrafted Order.

At the January 20, 2015Amici Curiae Lecture, DeputyDistrict Registrars Farrah Asinand Harjit Dhinjal of theVancouver Supreme CourtRegistry provided thoughtfuland insightful information onthe common errors that arisewhen preparing a civil Order.

All Orders must contain:1. the registry file number;2. the registry location wherethe action was commenced;and3. the Style of Cause (orProceeding).

The Style of Cause (orProceeding) must be in themost current form as set out inthe pleadings. For example, ifa Third Party Notice has beenfiled and third parties havebeen added to the action thenthe Order must ensure that themost recent Style of Cause (orProceeding), includes the thirdparties.

Second, all Orders must beprepared using the correctcourt form. If an Orderrequires a specific court form,the Supreme Court CivilRules will identify the correctform to use. Otherwise, all

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

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oppose or agree to an order tohave their matter transferredfrom one registry to another.If, for whatever reason, anamed party who is not aparty of record does not wantthe matter transferred toanother registry, that partywill need to file a response tothe pleadings first before theCourt will consider any objec-tion it has to the transfer.

The conclusion of this sectionas well as some commonissues that arise when prepar-ing common types of Orderswill be in the next article. !

Claudia Au, Mayette Ostonalare members of Amici CuriaeParalegal Litigation UsersGroup that published the Guideto Civil Litigation for Self-Represented Litigants (BC).

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

BC Civil LitigationGuide $ 750

BC Civil LitigationGuide

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: JUNE 11 AND 12, 2015 (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 2L21505B!

Register at: www.lawcourtscenter.comLaw Courts Center150 - 840 Howe Street, Vancouver BC Canada V6Z 2L2 1505 B!

Judicial interpretation on admissibility of rhetoric in an affidavitTo people new to litigation, it is important to understandwhy certain things are done. Or not done. We will bediscussing why affidavits must contain facts only. Whichbrings us to this case brief we once wrote about:

The case of Haughian v. Jiwa, 2011 BCSC 1632(http://canlii.ca/t/fp449), stands for the propositionthat affidavits need to comply with the same

admissibility rules as evidence presented at trial. The casedemonstrates that failure to comply with these rules canresult in portions of the affidavit being struck.

The case concerned a plaintiff, Mr. Haughian, injured in amotor vehicle collision. During the subsequent summarytrial, the plaintiff introduced an affidavit from a witness whocorroborated the plaintiff’s version of the circumstances ofthe collision. The court, however, found that the certainsegments of the affidavit violated several evidentiary rulesand struck these offending sections.

The court reminded the plaintiff and defendant that Rule 22-2(12) and 22-3(13) provides guidance on the applicableevidentiary rules:

(12) Subject to subrule (13), an affidavit must state onlywhat a person swearing or affirming the affidavit wouldbe permitted to state in evidence at a trial.

(13) An affidavit may contain statements as to theinformation and belief of the person swearing or affirmingthe affidavit, if

(a) the source of the information and belief is given, and

(b) the affidavit is made

(i) in respect of an application that does not seek a finalorder, …

The court relied on Chamberlain v. Surrey School District #36 (Surrey) (1998), 168 D.L.R. (4th) 222, 85 A.C.W.S. (3d)72 (B.C.S.C.), in stating that the court has the power to strikeinadmissible evidence from affidavits.

The portions of the witness’ affidavit in dispute included:

6. “Although I had the right of way to proceed onto SunsetStreet, Mr. Jiwa was proceeding anyway so I braked andwaited until it was safe to make my turn immediately after

Mr. Jiwa made his turn. Mr. Jiwa cut me off to make his turnand I am very confident that had I been continuing straightnorthbound on Smith Avenue instead of turning right ontoSunset Street, my vehicle would have been struck by Mr.Jiwa.”

7. I disagree with paragraph 11 of Mr. Jiwa’s affidavit. Itwas very clear to me that Mr. Jiwa was in a hurry. He wasdriving aggressively and too fast for the area. He wasdriving dangerously immediately before the accident…

8. I immediately saw that Ms. Haughian’s vehicle wasalready in the process of parking. I am certain that Ms.Haughian was not making a wide turn from the left lane atthe time Mr. Jiwa struck her vehicle as Mr. Jiwa states atparagraph 12 of his affidavit. I disagree that Mr. Jiwa wasunable to stop before colliding with Mrs. Haughian’s car.If Mr. Jiwa had not been speeding he had plenty of time tostop because I noticed the plaintiff’s vehicle immediatelyupon turning onto Sunset Street and I was behind Mr. Jiwa.Since I could see that Ms. Haughian was in the process ofparking I cannot understand why Mr. Jiwa could not seethat.

12. After the accident, I gave my contact information toMs. Haughian because I felt that Mr. Jiwa was absolutelythe at fault driver. Mr. Jiwa was driving too fast and couldhave avoided the accident.

13. I provided a statement to ICBC on June 17, 2008.Attached hereto and marked as Exhibit “A” to this myaffidavit is a true copy of the statement I provided to ICBC.I do not have an unredacted copy of the statement. Iconfirm that the contents of my June 17, 2008 statement toICBC are true and accurately recount what I observed a thetime of the accident. I disagree only with: firstly that Iobserved the Haughian vehicle pulling in, and secondly thatI referred to Mr. Jiwa as “Indo Canadian”. As I did notsign the statement, I would have made those changes if Iwas asked to sign.

In noting that the witness should have confined his evidenceto the facts, the court referred to the rhetoric in the witness’statements constituted personal assumptions, commentary,and argument. Although these did not constitute hearsay,they contravened sufficient evidentiary rules to lead the courtto strike paragraph 8, and the other paragraphs producedabove were not considered when analyzing the issue ofliability. To learn more, join us on June 11 &12, 2015. !

British Columbia Civil Litigation GuideDESK REFERENCE MANUAL VERSION 9.1

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Table of Contents

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

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

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

What our subscriberssay about our manuals

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

The practice tipsare so helpful.

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ABOUT THE AUTHORS

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

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

Managing Editor: Dom C. Bautista

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

Written in plain language

A focus on Self-Represented Litigants

Flowcharts that include the authority

Practice tips in every section

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

Organizing the Trial

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

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

1

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

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

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

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

W

New Civil Rules

Chambers Application Supplemental Flowchart

1. Applications taking more than 2 hours:

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

2. Short Notice Applications:

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

Specially designed charts and flowcharts designed tomake your work easier

Working with Self-Represented Litigants

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

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

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

negotiations, mediation, arbitration.

A

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

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

l That way the written communications can later ber

Appendix L.2 Fast Track Litigation Flowchart

Step Process Rule

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

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

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

S

by the p

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

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

Disability (TTD) benefits.

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

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

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

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

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

Registration:WWW.LAWCOURTSCENTER.COM

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

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q Please send me a copy of the manual only as I am not able to attend. $263.30

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Part 7 Benefits 101

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

Extending Physiotherapy, Registered Massage or Chiropractor Treatments

Once you have been retained bya person who has been injuredin a motor vehicle accident,

there are several things that must bedone to ensure your client’s claim isunderway and advancing in a timelyfashion.

Your basic auto plan policy helps payfor your medical care and treatment.Medical benefits (Part 7) coverage isfor anyone injured or killed in a motorvehicle accident in BC or any BCresident injured or killed in NorthAmerica. Medical benefits includecoverage for ambulance services,medications, chiropractic, registeredmassage therapy, kinesiology andphysiotherapy treatments. Pursuant tosection 88(1c) of the Insurance(Vehicle) Regulations, ICBC isrequired to pay all reasonable andnecessary expenses for medicationsand therapy.

Not all therapies are included see S.88(1) of the Regulations. Treatmentssuch as kinesiology and massage aresubject to the “corporations” medicaladvisor which in many cases will bethe client’s general practitioner (GP).

Chiropractic, Registered MassageTherapy and Physiotherapy treatmentsare mandatory benefits which ICBC isrequired to pay for; however they willonly pay for these therapies if they arecommenced shortly after the accident(8 weeks – this is a policy of ICBCand applies to massage therapy).ICBC will only pay for a limitednumber of treatments, and will notpay for treatment for serious lifethreatening injuries that may notsufficiently heal within that timeframe. It is highly important torecommend to your client that theysee their general practitioner as soonas possible after the accident for an

assessment, even if they feel they havenot sustained any injuries. Even aminor injury could be a significantone that requires treatment. Highlevels of adrenaline tend to masksymptoms after an accident. Asgeneral practitioners are aware, oncethe adrenaline levels subside, pain isusually felt. Continued visits to thegeneral practitioner are required sothat the doctor can make his notesregarding the motor vehicle accidentdate, location of the accident, whetherthe police and ambulance attended thescene, any hospital involvement andthe injuries sustained at that time.These records and a medical legalreport will be obtained at a later stagein the claim.

Referrals will be made by the GP forone or more treatments with amassage therapist, physiotherapist orkinesiologist. Referrals from the GPare not needed for chiropractors, butgetting helps bolster credibility. ICBCusually only pays for 12sessions/visits. MSP no longer paysfor these treatments.

If further treatments are required,another referral will need to beobtained from the general practitionerand the referral should contain the:• Date;• Further treatment is required; • Treatment is required as a result ofthe motor vehicle accident;• Number of treatments he isrecommending;• Opinion of being required to bereassessed after a specified date;• (optional) referral for a differentmode of treatment; and• Doctor’s signature.

ICBC has new policies in effect insome offices. Some claim officesrequire the client take the referral

directly to the treatment caregiver andthen the caregiver would contact theadjuster directly for approval, thelength of treatment, whether a workhardening program would be of abenefit and their direct billingprocedure , etc. A copy of the referralshould also be provided to the lawyerfor the file. If your claim centre doesnot follow this procedure, then youshould contact the adjuster andprovide the referral to the adjuster forapproval. Be sure to check to ensurereferrals and further referrals arehandled appropriately and on apriority basis. ICBC will pay a ratewhich is approximately $23.00 pervisit. ICBC does not pay the user feeswhich are the responsibility of theinjured party.

If the client is not receiving moniesfrom their Short/Long Term DisabilityPlan, EI Sick Benefits, or CPPDisability Benefits either because theydo not qualify or there is no plan andis awaiting total temporary disabilitybenefits from ICBC, it can be difficultto pay for these treatments. There isan option which is available throughsome of the caregivers, a “Direction toPay” which essentially allows theinjured person to continue with theirtreatments without having to pay theuser fees up front, which can beanywhere from $25.00 - $50.00 pervisit. The facility will keep a runningtotal and this must be paid in full atthe time of settlement, before theclient receives their settlementmonies. While it may be difficultfinding a therapist to agree to aDirection to Pay, but it is always anavenue which should be looked in tofor the client’s recovery.!

Gerrie Campbell is a senior paralegalwith Bronson Jones & Company. She willpresent P7B 101 on June 7, 2014.

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