) J

Newsletter of the Canadian Bar Association (BC Branch)

April1996

Vol. 8 • No.2

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

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

How you can play a part in making justice safer ....... 6

Registry Q&A .......... ....... 8

Volunteers sought for Commonweatlh Conference ................... I I

Client literacy affects your practice .......................... 12

Microsoft strikes back IS

Legislative Update ........ 18

BC Branch constitutional conference • was a maJOr success

Historic Vancouver meeting attracted national media and a sell-out crowd

Top calibrespeakers from across the country thoughtfully discussed the issues at the CBA conference in Vancouver.

M ore than 300 people turned out on Saturday, March 2nd, at the Robson Square Conference Centre to attend a day-long conference on the future of Canada sponsored by the BC Branch

of the Canadian Bar Association. The conference was also covered by more

than 25 media representatives, including crews from both English and French CBC television news and the National Film Board.

Planning for the CBA conference began in the fall of last year, when former CBA executive member Jeff Scouten and a number of volun­teers decided that the Bar could and should play a part in responding to last fall's referendum in Quebec.

Scouten became chair of the Canada-for-To­morrow Committee. Other members of the com­mittee included Len Doust, Q.C.; Tom Berger,

Q.C., John McAlpine, Q.C.; Frank Low-Beer, Liz Edinger, Art Grant, Robert Lesperance, Mike Brecknell, Nancy Morgan, Gary Yabsley and Mike McDonald.

The conference, eventually named "Canada and Quebec-Perspectives and Strategies," brought together a blue-ribbon panel of aca­demics, politicians and community leaders from across the country.

They included the Right Honourable Joe Clark, former Prime Minister of Canada, Stephane Dion, federal Intergovernmental Af­fairs Minister, the Honourable Senator Gerald Beaudoin, BC Health Minister Andrew Petter, Ovide Mercredi, and a host of others. All of the speakers appeared without fee at the confer­ence.

Story continues on page 20. For more on the conference, see

the President's column on page two.

PRESIDENT'S MESSAGE

John Waddell, CBA (BC

Branch) President 1995/96.

2

We built it-and they came CBA constitutional conference was a great success

Take one person who cares deeply about an issue. Combine that con­cern with focused zeal to inspire a sense of possibilities in the right people. Mobilize the resources of a

vigorous and well organized Association be­hind a program to address the concern. Add a modicum of restraint and focus from a broader base of opinion and what do you have? An impact.

Jeff Scouten, a partner at Crossin and Scouten in Vancouver, decided that his attendance at the Unity Rally in Montreal on the eve of the Que­bec Referendum was a spark, not a flame. He worried that the wrangling over Canada's fu­ture was increasingly dominated by ill-informed and narrow interests. He felt that our collective fate as a nation, and a province, was at risk of being determined by a combination of igno­rance, insensitivity on all sides, and exhaustion.

Jeff turned to a network of leaders in the legal profession who shared his concerns. Work­ing together, they developed the concept of a public conference on the subject of National Unity. On behalf of this committee, he brought the concept to the executive of the B.C. Branch, asking that the Branch act as host of the confer­ence and lend its credibility as a lure to potential participants to be drawn from a variety of per­spectives and regions.

The executive balked. Some members were concerned that the views of lawyers in this province would be as diverse as those in the population as a whole and that the proposed name for the event, "The Canadian Unity Con­ference" -carried with it connotations that many members would find offensive.

After spirited debate, in the presence of Mr. Scouten, the matter was referred to Provincial Council which met December 9, 1995, in Van­couver. A number of speakers urged that the conference be scrapped. Others counselled cau­tion. In the end, the representative function of council proved its worth. Scouten left the meet­ing somewhat chastened but with a refined focus.

Under its eventual new guise as "Canada and Quebec-Strategies and Perspectives," the Conference was aimed at achieving two prima-

ry goals: The first was to clarify the many confus­ing issues arising in the wake of the Quebec Referendum, for the benefit of the Legal Profes-

. sion and the general public in British Columbia. The second was to identify possible options for achieving a new national consensus on reform of our federal system where needed and appropri­ate.

The details of hosting this type of conference in such a short timeline were enormous. But your branch staff, with the assistance of Scouten's committee, pulled it off. The conference was quickly sold out with lawyers and members of the public buying tickets in equal numbers. On the day, March 2, 1996, all were in their places and the show went off with barely a hitch.

I left Robson Square feeling extremely proud-proud of the Canadians who spoke so eloquently of their perspectives of our country; proud of our Association as a facilitator of this type of discussion; proud that the atmosphere of the conference was one of courtesy and respect; and proud that we continue to behave as a civilized people.

. This conference was a watershed event for the Canadian Bar Association and for the profes­sion. It demonstrated that we enhance our repu­tation as lawyers by serving a useful, and timely purpose. It seems very obvious to me that the rehabilitation of our reputation depends on the alteration of our role in society. If we can demon­strate to the public, and to government, that lawyers are indispensable as facilitators of ra­tional dispute resolution, our credibility will expand exponentially. On March 2, 1996, virtu­ally every speaker commented on the impor­tance of not only the conference, but of the lead­ership of the Bar in initiating it. We didn't solve the country's problems. We didn't expect to. We did, however, set out to do something useful, and we succeeded.

I expect that the CBA will be called upon to do more in the quest for a national concensus and I feel that we should. The skills we develop in these endeavours will be invaluable to us in the reform of the administration of justice and in

, the remaking of the image of the profession. +

BarTalk Vo1.8 No . 2

Shelley Bentley

April 1996

The right to silence in tax matters Defining the powers of Revenue Canada auditors

Werner Heinrich of Koffman, Birnie & Kalef spoke to Taxation Law Subsection members re­cently on the distinction between an audit de­signed to determine a taxpayer's civil liability for tax and interest and an audit designed to gather evidence for criminal proceedings. He said it is one thing to question a taxpayer to determine the correct tax payable. It is quite another thing to ask him or her for admissions for pUiposes of obtaining a conviction in crimi­nal proceedings. The line between criminal and civil proceedings becomes blurred where the Special Investigations division of Revenue Can­ada is involved. This special department of Rev­enue Canada will audit a taxpayer without dis­closing that they are involved. Mr. Heinrich focused his remarks on how far auditors could go before the constitutional right to silence was infringed.

A. A REGULAR AUDIT Article 8 of the Charter protects taxpayers from an "umeasonable search or seizure". In McKin­lay Transport Limited v. The Queen, the Supreme Court of Canada ("S.C.C.") dealt with a taxpay­er who was charged under section 231(3) (now s. 231.2) of the Income Tax Act with the failure to comply with a requirement and who argued that the requirement infringed Article 8 of the Charter.

committed. This decision was reversed and the matter went to the S.C. C.

The S.C. C. held that the requirement consti­tuted a seizure because it infringed the taxpay­er's legitimate expectation of privacy. This was because the requirement compelled the taxpay­er to produce a wide range of documents well outside the normal filing and maintenance re­quirements of the Act. On the issue of reasona­bleness the S.C.C. noted that "the facts of life are that certain persons will attempt to take advan­tage of the system and avoid their full tax liabil­ity". As a consequence Revenue Canada re­quires broad powers to supervise the Act's regulatory scheme. However, the Court sug­gested that the validity of a search or seizure depends on balancing the need for the State to monitor compliance and the right ofthe individ­ual to privacy. The Court also noted that s.231 (3) provided the least intrusive means by which effective monitoring of compliance with the In­come Tax Act could be effected. It involved no invasion of the taxpayer's home or business premises but simply called for the production of records which may be relevant to the filing of an income tax return. The Minister has no way of knowing whether certain records are relevant until examining them. At the same time a tax­payer's privacy interest is protected as much as possible because s.241 of the Income Tax Act protects the taxpayer from the disclosure of records to "other persons or agencies".

Mr. Heimich noted that McKinlay involved the issuance of a requirement in a purely civil context. There was no suggestion that Special Investigations was involved. Had that been the case the Court's conclusions may well have been different.

The Provincial Court found that Article 8 had been breached and that actual physical in­trusion was not required for a seizure to take place. The Court found that the seizure was umeasonable because there was no prior au­thorization process, the Minister was not neu­trat there was no legislated review and the legislation did not provide for the requirement that someone on oath establish on reasonable and probable grounds that an offence had been

Continued over

3

SECTION TALK

Improve your trial advocacy skills A video on cross-examina­

tion is available for loan or

purchase from the BC

Branch of the Canadian Bar

Association.

The videotape will show you

two cross-examinations of

the same witness by two dif­

ferent counsel using different

approaches and styles. Prior

to each examination, the

counse l will tell you their ap­

proach to the cross-examina­

tion and, following, will dis­

cuss various aspects of the

encounter. The videotape is

structured so as to be used

in different contexts: self­

study at home, advocacy

workshops, or seminars/lec­

tures on cross-examination.

You can show all the tape or

only self-contained portions.

For more information, con­

tact the BC Branch of the

CBA at 687-3404.

4

The powers of Revenue Canada

Continued from poge 3

B. CONSTITUTIONAL CHALLENGE

Article 7: The right to life, liberty and security of the person Article 7 of the Charter provides that" everyone has the right to life, liberty, and security of the person" and "not to be deprived thereof except in accordance with the principles of fundamen­tal justice" . The "right to silence" is a fundamen­tal tenet of our legal system. A person has the right to remain silent either as the accused at trial, or at the "investigation stage" (R. V. Sym­

monds).

1. Issuing a requirement after a taxpayer is charged with a criminal offence

In Alan Tylerv. M.N.R. the taxpayer was charged with importing and trafficking in narcotics. Rev­enue Canada became aware of the charges through the press and began investigating. A requirement was issued demanding, among oth­er things, a signed asset and liability statement and a personal living expense statement which had to be "certified as being correct." The tax­payer sought an order of prohibition preventing Revenue Canada from using the statement in any criminal proceedings . and demanding the return of the information in its possession. The Federal Court of Appeal found that the commu­nication to the RCMP of the information re­quested by Revenue Canada had the effect of "conscripting the appellant against himself" and that it deprived him, as an accused person, of his right to silence. The Court also noted that the signed statement had a direct bearing on the charge.

2. The investigation: requirements issued by Special Investigations

Special Investigations assumes conduct of files by three routes. First, it receives internal refer­rals from auditors who believe that there has been an evasion; second, it acts on information supplied by the public; third, it obtains referrals from police agencies. Special Investigations first determines if there is substance to the allega­tions and, if so, gathers evidence to support a prosecution.

If the right to silence applies to persons un­der investigation for an offence, the question becomes when does the investigation begin and when does the audit end? This dividing line is

essentially a question of fact and a matter of considerable judicial debate.

In the Morena case Special Investigations is­sued a requirement to a taxpayer suspected of illegally selling wine. The Federal Court ac­knowledged that the right to remain silent ap­plied at the investigatory stage but then con­cluded that the right to silence presupposed the existence of a criminal process either at an "ear­lier or later stage" . The Court mentioned that the taxpayer had never been "accused of, arrested for, or simply detained in relation to any crimi­nal offence". The Special Investigations auditor testified that the file was transferred to Special Investigations for simple audit purposes as they had no evidence that a crime had been commit­ted. The Court accepted the auditor's testimony and concluded that the requirement had not been issued in a "criminal context" . Mr. Hein­rich remarked that one wonders why the file was transferred to Special Investigations if all that was being performed was a simple audit. One suspects that the audit had concluded that there was a reporting problem and the matter was referred to Special Investigations to investigate the possibility of a crime.

The Ontario Provincial Court adopted a sim­ilar line of reasoning in R. v. M. E. Coghlan. The taxpayer was an accountant whose client's af­fairs were under audit. An auditor determined that there were "problems" with certain unre­ported shareholder benefits and referred the file to Special Investigations. A second auditor sus­pected tax evasion on the part of another group of the taxpayer's clients and also referred the matter. Special Investigations instructed the sec­ond auditor to obtain a whole series of docu­ments because the investigator could not "re­solve the problems which were revealed". After reviewing the documents, Special Investigations concluded it had reasonable and probable grounds for tax evasion and obtained a search warrant.

At trial the taxpayer argued that the warrant­less search engaged in by the auditor under the requirement was unreasonable because it oc­curred at a time when a criminal offence was suspected and a criminal investigation had be­gun. The Crown argued that the audit was a normal "bona fide" audit, not a subterfuge to obtain evidence at a time when it had reasonable and probable grounds for believing an offence had been committed. The Court adopted the position that as. 231.1(1) search becomes unrea-

BarTalk Voi.B No. 2

sonable once Revenue Canada decides to lay charges or suspects, on reasonable and probable grounds, that an offence was committed. The Court adopted Special Investigations' position as to when this occurs; that an auditor can be sent in when tax evasion is suspected, but a search warrant must be applied for once they are convinced an offence has been committed.

A different result was reached inR. v. Caswell where the RCMP had advised Special Investiga­tions of their belief that the taxpayers had accu­mulated "illicit wealth" through cocaine deal­ings.

In R. v. Harris the B.C.S.C. acquitted the taxpayer of Narcotic Control Act charges because of an illegal search and seizure. Mr. Justice Oliver concluded that Revenue Canada cannot be said to act in a solely regulatory or adminis­trative fashion when it acts "with the assistance and support of the Department of the Solicitor General, represented by the RCMP" . This is especially the case where Special Investigations operates two distinct groups, namely the Gener­al Enforcement Branch, concentrating on legiti­mately earned but undeclared income, and the Special Enforcement Branch, conducting inves­tigations into undeclared income derived from illegal activities. ·

Where the latter group is involved a criminal context is readily apparent. The Court adopted the "predominant purpose test" to determine whether the evidence sought is compellable. The evidence is not compellable if" the predom­inant purpose for seeking the evidence is to obtain incriminating evidence against the per­son compelled to testify rather than some legit­imate public purpose.

A key criterion in determining the predom­inant purpose is the relative importance of the evidence in subsequent proceedings. Where the evidence sought is of "slight importance" in the current proceedings but of great importance· in subsequent proceedings, the inference may be drawn that the real purpose for obtaining the evidence is its use in the subsequent proceed­ings.

In R. v. Norway Insulation Inc. Mr. Justice La Forme expressly disagreed with the comments in theCoghlancase that an audit was administra­tive as long as only a "suspicion" existed. In that Court's view such an interpretation could lead Revenue Canada to view the authority of s. 231.1(1) of the Income Tax Act as never requiring a warrant under any circumstance because all

April 1996 .

SECTION TALK

evidence could be obtained by relying on their subjective view of what constitutes mere "suspi­cion". The issue of the "reasonableness" of the search or seizure as required by the Charter would be a moot point.

Mr. Heinrich concluded that the breadth of a taxpayer's right to silence is a matter still open to debate. It seems clear that the involvement of Special Investigations brings the borderline perilously close to being in the criminal context. As such, the taxpayer should assert his or her right to silence where there is cause to do so.

DO'S AND DON'TS IN OBTAINING AN EXPERT REPORT

Glen Urquhart, Q. C. a partner of Singleton Urquhart Scott gave advice to Construction Law Subsection members on retaining an expert and the preparation of an expert report.

Retaining an Expert

a) Statement of Assumed Facts Counsel should prepare in a binder and deliver to the expert a Statement of Assumed Facts to­gether with any relevant documents. An expert should not be allowed to draw inferences of fact from documents. It is not properly part of the expert's role. The inferences drawn should be framed as assumptions that counsel has instruct­ed him or her to make. It is inappropriate to provide the expert with access to discovery tran­scripts, witness statements, etc. Rather it is for counsel to delineate and articulate the facts which will be established at trial.

The Statement of Assumed Facts should be factual and in no way argumentative. All facts which may bear on the expert's opinion, both for and against the client's position, must be set out as assumptions. It may be necessary to set out alternate sets of facts to guard against the possi­bility that the court's findings may not conform to a chosen set of facts. The expert should request any additional necessary facts. It is not necessary to cite the source of the assumed facts.

b) Questions for the expert It is a good idea for counsel to draft and submit to the expert the written questions to which the expert is to respond. These questions can be fine-

Continued over

Award nominations sought Nominations are now being

accepted for the Walter S.

Tarnopolsky Human Rights

Award by the Canadian Sec­

tion of the International

Commission of Jurists.

This award annually recogniz­

es outstanding achievement

by a Canadian citizen in do­

mestic or international hu­

man rights law. The award

takes the form of a medallion

and an honorarium of $1 ,000

and is presented at the Cana­

dian Bar Association Annual

Meeting.

All nominations must be sub­

mitted in writing to the Se­

lection Committee on or be­

fore April 30th. Candidates

must be Canadian citizens.

There are no posthumous

awards.

Nominations must be

submitted by individuals and

include both nominee's and

nominator's name (including

titles), address, telephone

and fax numbers and the

nominee's Curriculum Vitae.

The letter of nomination

should outline the candidate's

achievements.

The Selection Committee is

comprised of representatives

of the CBA, the Canadian

Judges Conference (CJC), the

Canadian Association of Law

Teachers (CALT) and the ICJ.

Nominations should be sent

to:

La Prix Walter S.

Tarnopolsky Award

902,50, rue O'Connor St.

Ottawa, (ON) KIP 6L2

Tel: (613) 237-2925

Fax: (613) 237-0185

E-Mail: info@cba.org

5

SECTION TALK

Call for Nominations 1996-1997

The CBA is seeking candi­

dates for its National Stand­

ing Committees for 1996-

1997. All CBA members are

eligible to apply for these po-

sitions.

For information and an appli­

cation form, please contact

the BC Branch or the

National Office at 1-800-267-

8860.

Deadline for applications:

April I 5, 1996

Free employment service

The BC Branch office main­

tains an employment registry

file . Law firms looking for

staff can register their re­

quirements and lawyers look­

ing for work may also regis­

ter-at no charge.

Potential employers or those

seeking employment can pe­

ruse the file at the BC Branch

office. Other categories

maintained include students

seeking articles, support staff

availab le and lawyers available

for part-time work.

Call Fiona Watson at the BC

Branch office (687-3404) to

register your resume at no

charge in the Employment

Registry. Law firms seeking

employees can also call Fiona

to post a job placing or to

review resumes on file.

6

Continued from Page Five

tuned in consultation with the expert. The final draft will be quoted in the expert's report.

c) Opinion The third part of the report will be the opinion. Counsel must be careful not to interfere with the substance of the expert's report-not to influence the expert's objectivity. For expert testimony to be admissible it must be necessary to assist the trier of fact to form a judgment. The expert cannot usurp the role of the court by expressing an opinion on the very issue to be decided. The expert must not evaluate conflicting evidence, make findings of fact, allocate fault or responsi­bility, interpret contracts or other legal docu­ments, advance arguments, either factual or legal, or state legal conclusions.

Once a party calls an expert witness to testify all privilege which may earlier have attached to

this witnesses' documents prepared for the liti­gation is lost. In light of the court's view, one position is that all draft reports, documents, papers or notes and any changes to the expert's opinion must be preserved. The other position is that counsel should advise experts to discard their drafts as soon as they have been revised. It is probably best to ask the expert to follow what has been his or her standard practice.

d) Qualifications Instead of simply attaching a copy of the expert's resume, in addition, counsel should ask the ex­pert to prepare a summary of experience and qualifications relevant to the area in question.

Mr. Urquhart recommended that all of the above do's and don'ts be set out in the form of instruc­tions to the expert. +

Canadian Bar Association 1996 Law Practice and Compensation Survey

FOUR SURVEYS IN ONE

• Lawyer and partner compensation

• Law firm practices

• Corporate counsel compensation

• Benefits, incentives, bonuses

Publishing date: June 15, 1996 ./Final results presented by: ./Geographic region ./Firm size (No. of lawyers) ./Corporate sales

Only survey participants receive final report

OVER 80 POSITIONS SURVEYED

• Partners

• Associates (by year)

• Para Legals (by speciality)

• Patentffrademark

Title Agents/Searchers

• Legal Secretaries

• Administrative Staffs

• Corporate Counsel

Senior V.P.

Asst. V.P./General Counsel

Legal Counsel (41evels)

FOR FURTHER INFORMATION OR TO PARTICIPATE CONTACT: Canadian Bar Association Member Services 902-50 O'Connor St. 1-800-267-8860

·Personnel Systems 512-1 Nicholas St. Ottawa K1N 7B7 1-800-263-0491

BarTalk Vol.8 No. 2

Court security and you How you can play a part in making justice safer

On September Blast year, lawyer Graeme Keir­stead was attacked in the New Westminster Law Courts building. The attack, by the 70-year-old husband of a client represented by Keirstead, left the young lawyer seriously injured. The attack caused serious concern about courtroom security among many counsel in British Cohun­bia. Because of this, the Joint Court Sen1ices Committee asked the Court Services Branch of the Ministry of the Attorney General to advise how counsel can help to ensure that security is maintained and enhanced in courtrooms through­out the province. The following article, by Policy & ProgramAnalyst Peter Robinson, was 'Written in response to that request.

Few serious security breaches have occurred in British Columbia courtrooms due, in part, to the professionalism of deputy sheriffs. The Of­fice of the Sheriff assumed the court security role from the police with the creation of Court Services Branch in 1974. For over 20 years, dep­uty sheriffs have provided court security on a daily basis in courtrooms throughout the prov­ince.

In order for deputy sheriffs to fully carry out their court security responsibilities, they require the assistance of all court participants. Members of the Bar can assist deputy sheriffs in many ways to ensure better security. For example, one means of assisting is to willingly submit to searches during high-security trials. Court Serv­ices' policy specifies that when it is necessary to search persons and their belongings prior to entering the courtroom, all persons will be re­quired to be searched. Exceptions may be made for crown and defense counsel, members of the jury and other Branch staff assigned to the trial at the discretion of the sheriff. By following this policy, the potential for security breaches would be mitigated, thereby enhancing the safety of all court participants.

In general, members of the Bar should con­tact the Sheriff's Office regarding any potential security concerns they may observe during their attendance at the courthouse. This may include reporting people who are acting suspiciously in the courthouse or informing the Sheriff's Office of any potential security risks present in the courthouse.

April 1996

Counsel can assist court security by inform­ing the Sheriff's Office as soon as possible of any security concerns which may be unique to their upcoming trial. Information that would assist the sheriff in determining the appropriate staff­ing level of a trial or any other security precau­tions should be communicated to the Sheriff's Office. The Sheriff's Office will review this infor­mation and staff the courtroom as appropriate, given limited resources.

Many courtrooms in the province have been designed with security in mind. Secure entranc­es from the holding area are usually located close to the prisoner docket and the Bench. Emer­gency buttons, sometimes referred to as "panic" buttons, are located in many courtrooms, out of sight, under the court clerk's desk. During an emergency in the courtroom, the activation of the button will alert the Sheriff's Office of the need for the attendance of security personnel.

During a courthouse emergency, whether it be real or a drill, all persons must follow the directions of the deputy sheriff. The sheriff in the building is the servor authority during a critical event. Depending upon the type of emergency (fire, bomb threat, hostage-taking, earthquake, etc.), court participants may be informed to ei­ther evacuate the building or take shelter.

Cooperating with deputy sheriffs while they are discharging their court security responsibil­ities will help to provide a safer and more secure environment for all court participants. •

New CBA Section approved At the February 1, 1996 meeting of the Provincial Council a new section was approved. It is the Young Offenders, Victoria. The chair of the sec­tion is Dianne G. McDonald.

The group met informally for about five years prior to its official designation as a section. Since September it has been meeting on a monthly basis.

Those interested in joining the new group can phone McDonald at 389-1099 or fax her at 388-9060. •

Photocopy cards for sale The Vancouver Courhouse

Library has recently installed

a vending machine to sell

photocopy cards for cash.

Users can buy new cards for

any amount they choose, or

"top up" the photocopy

cards they have purchased

previously. The vending ma­

chine takes bills in denomina­

tions of two, five, ten and 20

dollars. It is available 24

hours a day, although pur­

chasing cards on account still

has to be done while the li­

brary is staffed. If you have

any questions , please contact

the reference staff at 660-

2841 or the photocopy/circu­

lation staff at 660-2838.

7

REGISTRY Q & A

By

joanne Power

Manager Registrar Program

8

If you have any interest­ing or unusual questions

or comments about this

column, please write di­

rectly to:

JOANNE POWER Manager, Registrar Programs Law Courts 850 Burdett Ave. Victoria, B.C. V6W IBS

BANKRUPTCYANDINSOLVENCYACT s. 49(3)

Q Is there a local venue rule in cases of bankruptcy?

A Yes. Under s.49(3) of the Bankruptcy and Insolvency Act, the assignment into bank­ruptcy is made "to the official receiver in the locality of the debtor". "Locality of a debt­or" is defined by s.2 to mean the principal place

a) where the debtor has carried on busi­ness during the year immediately preced­ing his bankruptcy;

b) where the debtor has resided during the year immediately preceding his bank­ruptcy, or

c) in cases not coming within (a) or (b) where the greater portion of the debtor's property of the debtor is situated.

This point was canvassed briefly by the Honourable Mr. Justice Tysoe in oral rea­sons for judgment in the Bankruptcy of South Thompson Guest Ranch Ltd. (unre­ported, Vancouver Registry 159235 VA95).

A court has power under s.187(7) to transfer any proceedings under the Act to another bankruptcy district or division on satisfactory proof that the affairs of the bank­rupt can be more economically adminis­tered within another bankruptcy district or division.

COURT ORDER ENFORCEMENT ACT s.4(7)

Q How long is a garnishing order issued against wages pursuant to the Court Or­der Enforcement Act in effect? A fre-

A

quent problem arises when companies continue to send in payments on one gar­nishing order.

The garnishing order is in effect for "wages that would in the ordinary course of em­ployment becoming owing, payable or due within 7 days after the date on which an affidavit had been sworn ... "

Registry staff should simply accept pay­ment without reference to the date of the affidavit or payment of wages. This is an example of where the registry is essentially a simple repository. It would be inappro­priate for the registry to, in effect, take the

initiative in ruling on a procedural matter by questioning whether to accept a payment in.

COURT ORDER INTEREST ACT

Q Could you please advise as to how the prejudgment and post judgment interest rates are ascertained?

A Both rates are based on the prime lending rate of the banker to the government. Twice a year, on January 1 and July 1, the Registrar is advised of the prime lending rate of CIBC, the banker to the government, by the Minis­try of Finance and Corporate Relations. A schedule showing the various rates is then prepared and a copy distributed to each Supreme Court Registry.

COURT ORDER INTEREST ACT s.1 & 7

Q Can post judgment interest be calculated on a claim which includes prejudgment interest?

A Yes. Post judgment interest is calculated on the total amount awarded at the time of judgment, which likely includes both inter-est and costs.

EMPLOYMENT STANDARDS ACT s.91

Q What is a "Determination" filed by the Ministry of Skills, Training & Labour?

A This replaces a certificate pursuant to s. 14 of the Employment Standards Act. A new Act was proclaimed November 1, 1995, which now allows for a "Determination" pursuant to s.91 of the Employment Stand­ards Act. These are enforceable in the same manner as a judgment of the Supreme Court. You may still see the odd certificate because there is a transition section from the old Act to the new Act.

FAMILY RELATIONS ACT s.36.1

Q What is the effect of restraining orders registered with the Protection Order Reg­istry which are later superseded by a final order of divorce?

BarTalk Vol.8 No. 2

A We asked Mr. Justice Warren, the Chairman of the Family Law Committee, whether the initial restraining order will be considered · interim in light of the final divorce order. It was the opinion of Warren, J. That there­straining order is not rescinded by implica­tion; unless, of course, it is rescinded specif­ically in the final order of divorce.

LEGAL PROFESSION ACT s.71.1

Rule 57 (32.1)

Q Must a Registrar sign a certificate under the Legal Profession Act for a bill that has been consented to by both parties?

A Where no proceedings have been com­menced, i.e.: by an appointment pursuant to the Legal Profession Act a Registrar has no authority to sign a certificate. If a file is opened by an appointment and the matter then settles by consent, however, a Regis­trar must issue the certificate. This situation should be distinguished from the one where an appointment is taken out for a review and the client fails to appear. The solicitor must then satisfy the Registrar concerning the factors in s. 71 (1) before the Registrar will sign the certificate.

LEGAL PROFESSION ACT s.71(3) & (4)

Q In what jurisdiction should a review of a lawyer's bill take place?

A Section 71 of the Legal Profession Act states: "(3) Where the member's bill relates to

a court proceeding, the appointment to re­view it shall, unless the parties otherwise agree, be taken out before the registrar in the registry where the proceeding was com­menced or to which it was transferred.

(4) In a case other than that referred to in subsection (3), the appointment shall, unless the parties otherwise agree, be taken out before the registrar located nearest to the place of business of the member whose bill is being reviewed."

April 1996

REGISTRY Q & A

LEGAL PROFESSION ACT s.71(5) (c)

Q Can a paid periodic lawyer's bill be re­viewed?

A This question was answered in the negative by the Honourable Mr. Justice Hood in Morin, Grant v. Olsson, 37 C.P.C. (3d) 130; thereby distinguishing two earlier Court of Appeal decisions: Arctic Installations (Vic­toria) Ltd. v. Campney & Murphy, 22 C.P.c. (3d) 221 and Ladner Downs v. Crowley, 25 C.P.C. (2d) 189. Hood, J. found a difference between an in­terim account and a periodic account:

"In my opinion, notwithstanding the title to each account, they are not interim accounts. They are not tentative or provi­sional, or payments on account. They are final accounts in that they relate to all pro­fessional services rendered within the time stipulated. They are not accounts which can be opened up, or re-billed or changed. They are periodic final accounts, and in my opin­ion each is a "bill" within the meaning of the word as used in the subject provisions.

"In reaching this conclusion I have con­sidered not only the contents of the accounts, which on their face are conclusive for the

. services rendered during the stated period , but, as well, the dealings between the parties and the circumstances. I am satisfied that both parties intended each account to be the law firm's final account for the work it repre­sented. That is what the parties agreed to, and that is the course of conduct which they fol­lowed. And in my view neither party should be entitled to invoke the entire contract prin­ciple followed in Crowley. I also rely on the decision in Robertson." 1

Having so concluded, he found a client who had paid a periodic bill lost the right to have it reviewed upon the expiration of three months (s. 71(5) (c)) notwithstanding that the retainer between the solicitor and the client was still ongoing.

1 Robertson, Ward Suderman & Bowes v. British Columbia Transit (1987), 25 C.P.C. (2d) 276

Continued over

Completing the Circle The Canadian Bar Associa­

tion 's National Continuing

Legal Education Committee

and the National Aboriginal

Law Section are offering a 11/

2

day programme, "Contempo­

rary Aboriginal Justice Mod­

els: Completing the Circle,"

April 26-27, 1996, in

Kahnawake Mohawk Territo­

ry near Montreal , Quebec.

The programme will consider

various options for alternative

justice systems, including do­

mestic and international mod­

els. Presenters will include

people who have designed

and implemented these pro­

grammes .

It will be of interest to al l le­

gal practitioners who seek a

better understanding of their

aboriginal client.

9

REGISTRY Q & A

Stop the Presses Actually, help make sure that

they're NOT stopped. The

B.C. Newspaper Foundation

asks your support for their

goal of excellence in journal­

ism by attending the 8th an­

nual, B.C. Newspapers

Awards Gala, May I I, 1996.

The prestigious Awards Gala

will be held at the Wall Cen­

tre Garden Hotel. Master of

Ceremonies will be the re­

nowned Bill Richardson.

Guest speaker will be veteran

journalist and author Walter

Stewart. His latest book is

"Belly-up-The Spoils of

Bankruptcy." Stewart's sub­

ject at the event will be "The

Myths of Journalism." For

tickets or more information,

contact the Foundation 's De­

velopment Director, Scott

McBride by phoning or faxing

(604) 873-1949.

10

Continued from page 9

Rule 11(12)

Q Is itnecessaryforadeputysherifftoswear an affidavit of service on a subpoena to debtor or would a certificate suffice?

A No. See Rule 11(12): "Service or delivery by a sheriff may be proved by a certificate in Form 5 endorsed on a copy of the document served or deliv­ered."

Rule 17(3)

Q In what circumstances, if any, is a lawyer's claim for legal services a debt or a liqui­dated demand such that, upon default of

A

appearance, final judgment may be taken for the amount of the claim?

This issue was canvassed by the Honoura­ble Mr. Justice Shaw in Eades v. Kootnikoff (unreported, Vancouver Registry C952713, August 1995). The case concerned an appeal from a deci­sion of a Deputy District Registrar rejecting a lawyer's application for final judgment in default of appearance. Shaw, J. found there may be some circumstances in which an agreement between a lawyer and a client will give rise to an account which may be considered, to use the words of Rule 17(3), "solely for recovery of a debt or liquidated demand", but rejected the appeal holding that the Deputy District Registrar was cor­rect in refusing the application for default judgment. In paragraphs 21 and 22, Shaw, J. said:

"Typically, when lawyers are retained by clients and there is no agreement which specifies the fees and no scale of fees is provided by law, the law will imply a term that reasonable fees will be paid. What is reasonable is a matter of judgment and will depend on the particular circumstances: Yule v. City of Saskatoon (No.4) (1955), 16 W.W.R. 305 (Sask., Q.B.), affirmed (1955), 17 W.W.R. 296 (Sask., C.A.). Because the "rea­sonable fee" retainer is so common, I do not think that a reasonable inference can be drawn from the allegations that legal serv­ices were provided and accounts rendered

[that the] retainer agreement provided for a set fee or a precise method of calculation. If a plaintiff wishes to enter final judgment for the amount of fees, the basis of the fees· should be clearly stated so the Registrar will have no difficulty in determining whether the claim is or is not for a debt or liquidated demand.

.. .In my opinion, there must be formula or basis, agreed or implied, upon which the quantum merit is capable of precise calcula­tion. If not, then the claim must be consid­ered as being for unliquidated damages."

Rule 41(18)

Q Can a Registrar include an entitlement to costs at the appointment for settling an

A order? ·

Yes, Chernoff v. Insurance Corporation of B.C. (1992) 12 C.P.C. (3d) 220. When settling an order, a registrar can include for the benefit of a successful party a term entitling that party to costs except where the judge or master who pronounced the order has de­termined that costs should not follow the event.

Rule 51(9)

Q Can correction tape be used on an affidavit filed for use in the Supreme Court?

A While Registry staff should never refuse to file such an affidavit, they should, however, initial the taped parts of the affidavit if the document is sworn in the course of their duties.

Rule 60(22) & Rule 64( I)

Q Are the Reasons for Judgment issued in a Divorce Act proceeding or a Family Rela­tions Act proceeding available to the pub-lic?

A Yes. A practice direction issued by the Chief Justice on November 17, 1989, states "Rea­sons for Judgment should not be considered part of the court file, even though a copy may be kept there. Reasons for Judgment are in a different category from the court file and should be available to the public either

BarTa lk Voi.S No. 2

through the press file or by an application to search a file upon the proper fee being paid."

APPENDIXC Schedule 1 Item 12

Q What fee applies for filing a notice of appeal from the master or registrar?

A This falls under Item 12 Schedule 1 of Appendix C: "For filing an interlocutory application, whether by motion or praecipe, or any other application for which a fee is not payable under this schedule." •

Volunteers sought for Commonwealth Conference Volunteers are still needed for this year's Cana­dian Bar Association Annual Meeting and the 11th Commonwealth Conference. People are needed to assist in the following ways:

• Registration desks • Assisting guests to travel to various loca­

tions throughout the conference • Providing help at the opening and closing

gala events • Assisting with sports and recreational reg-

istration • Greeting guests at the airport • Helping out with the children's program If you'd like to volunteer for any one-or

more-of these activities, or if you'd like to inquire about other activities in which you could be of service, contact Jim Vilvang at 661-9216 or fax 688-3830.

Volunteers who are also members of local sports organizations-such as golf and tennis clubs-are also sought to act as hosts for guests for the conference. If you'd like to sponsor a foursome or so at your club, please call BC Branch CBA Executive Director Robert Smeth­urst, Q.C. at 687-3404.

Also required are more people to volunteer for the conference's "At Home" dinner pro­gram. To extend a warm invitation for dinner at your home for one or more guests from the conference, please contact Moyra Dhaliwal, Chairperson, At Home Dinner Committee, c/o Department of Justice, 900-840 Howe Street, Van. BC V6Z 2S9 or call (604) 666-8246 or fax 666-1462.

A little more commitment will be required from those willing to volunteer as "Liaison Of­ficers" for the conference. This would involve greeting the International and Special guests at the airport, driving them to their hotels and, perhaps, acting as their "aide de camp" during their stay in Vancouver.

April 1996

Volunteers for this position will be required to attend a training session (probably in July) to ensure that the guests are properly welcomed and that all relevant protocols an~ met. Some of the duties of the Liaison Officers would include:

• Initial correspondence with the special guest

• Providing an information kit to the guest • Greeting guests at the airport • Transporting guests to their hotels • Liaison with consulates • Identifying and attending to protocol is­

sues • Ensuring that guests are comfortable • Addressing the individual needs of special

guests • Providing information • Being a contact person for guests in case an

emergency arises • Providing a guest with a phone number

where a liaison officer can be reached at any time If you'd like to volunteer to act as a Liaison

Officer, please call either William Skelly, Car­man Overholt or Anjili I. Bahadoorsingh. All can be reached at 683-6991.

Finally, Vancouver law firms are still being sought to act as hosts during the conference. A highlight of the conference will be the traditional Monday evening law firm receptions to be held Monday, August 26, 1996. This is a wonderful opportunity for law firms to show their West Coast hospitality to partners and colleagues from across Canada as well as to Commonwealth lawyers and judges from around the world.

Law firms planning to host a CLA I CBA event outside the office should make their arrange­ments as soon as possible since August is one of Vancouver's busiest tourist months.

To volunteer your firm as a host for the confer-ence, contact Terry LaLiberte at 669-8808. •

Celebrity Wine Auction If you 'd like to sample wine

graced with a celebrity's

name, you' ll enjoy a Celebrity

Wine Auction sponsored by

the Playwrights Theatre Cen­

tre on April 27th at the Van­

couver Art Gallery.

Wine tasting begins at 8 p.m.

and the auction of speciality

wines signed by the stars be­

gins at 9 p.m.

Some of the celebrities that

have signed labe ls include Lu­

ciano Pavorotti, David Duch­

ovny and Gillian Anderson

(of the X-Files,) Leslie

Nielsen, k.d . lang, Norman

jewison, Robert Bateman,

Evelyn Hart, jason Priestley,

Ned Beatty, Cloris Leachman

and Placido Domingo.

Dress is black t ie optional.

Hors d'oeuvres from the

Lazy Gourmet will be served.

Tickets are $25 each and are

available from all TicketMas­

ter outlets or by phone, 280-

3311.

Playwrights Theatre Centre

(formerly the New Play Cen­

tre) is a Vancouver-based

professional theatre company

dedicated to the develop­

ment, production and pro­

motion of new works by Ca­

nadian playwrights.

I I

Do we understand each other?

Clear communication forms the fundamental basis of good legal practice. You and your c lients should, so far as is possible, share a common understand­ing. However, there are many obstacles to communication . On this page, Cheryl Stephens explains how literacy difficulties can effect how your client interprets written mate­rial. You 'll be able to find more about these issues in the informa­tion kit, Lawyers for Lit­eracy, which is being distributed to a ll law firms in BC.

Achieving the goal of mutual understanding does not always in­volve problems inter­preting written docu­ments. On the next page, David Bilinsky discusses more gener­al issues involved in communicating with your clients and the im­portance of making an extra effort to reach un­derstanding.

12

Literacy and Legal Literacy Did you realize they can be practice issues?

By Cheryl Stephens

Legal education and communications consultant

Remember how you struggled to learn thorny legal concepts at law school? Did you ever wade through a 100-page judgement searching for a ratio? At a family gathering, has a relative ever hauled out a legal document for you to translate into plain English that they could understand and act on it?

If these examples sound familiar, you'll ap­preciate why so many people want-and need­legal information that is clear, concise, and com­prehensible. This need is even more acute for people whose literacy skills are marginal.

B.C. statistics show that 12% of adults cannot read or struggle just to read simple text. And 31% of B.C. adults cannot cope with unfamiliar or complex information, such as reading and acting on a lawyer's letter. That means that at least one in three of your clients probably finds your writing difficult and, because it is important to them, frustrating.

Who are these people? Many senior citizens had only elementary school education and their reading skills may be low by today' s standard. Many middle-aged people went to high school but have let their reading skills deteriorate. Along with many younger people, they have fallen out of the habit of reading - they get all their news from television and radio, all their entertainment from TV, films, and concerts.

Another group of people suffered during their developmental years from poverty, abuse, neglect, disabilities orracial discrimination. These are major roadblocks to a child's education. These children can have trouble concentrating at school and may never learn to read adequately.

Immigrants may be literate in their first lan­guage but struggle with English while others are not literate in their first language and learn Eng­lish slowly.

Broady defined, literacy is the 'ability to un­derstand and use printed information common­ly faced in daily activities, at home, at work, and in the community. When these skills are weak, written legal material can create a formidable obstacle to use of the justice system.

You may not realize when one of your clients

experiences difficulty with written material. He or she may be a highly productive and very successful member of society. But watch out! Appearances can be deceiving. And remem­ber-your clients' literacy can affect the delivery of legal services and their understanding of the legal issues confronting them.

As a lawyer, you are not expected to teach your clients to read. But there are steps you can take to help your clients grasp the legal context of their problem, the legal process required to resolve the problem, and the complex legal lan­guage and specialised terminology. These steps involve improving client communications gen­erally, modifying the way you establish the cli­ent record, and modifying other office practices.

It is worth your effort to take client-literacy into account because poor communication be­tween you and your client can interfere with your client's ability to give you proper instruc­tions and with your ability to obtain the appro­priate remedy for your client. The benefits to lawyers of making these changes include clearer communication, increased efficiency in practice procedures, improved legal outcomes for your clients, and increased client confidence and sat­isfaction with your service. Clearer communica­tion can contribute to fewer complaints about your service.

An information kit from Lawyers for Litera­cy, a project of the Plain Language Section of the BC Branch of the CBA, is being distributed to all sole practitioners and the managing partners of every law firm in BC. The purpose of the project and the kit is to assist lawyers to improve com­munications with their clients and thereby help clients, particularly those with difficulty using print materials, to access the justice system.

This kit will help you and other lawyers in your firm to, first, identify clients who may have marginal literacy skills. You will then learn steps you can take to help your clients, including how to find some of the resources that are available in the community for further assistance.

If you have any questions, please call me at 739-0443, or Penny Bain at 733-7852, or Paul Winn at 443-5727. +

BarTalk Vol.8 No. 2

Strive to communicate clearly with your clients Misunderstanding can be costly

David J. Bilinsky Past-Chair, BC Branch

Law Practice Management

Section

Two ships passing in the night. He doesn't seem to know which end is up. She's not in the same quadrant of deep space. All of these meta­phors describe the symptoms of a

failure of understanding between two human beings. When these two human beings happen to be lawyer and client, the miscommunication can take on certain consequences. Depending on the timing and the situation, these conse­quences can range from inconsequential to dire, for both the lawyer and the client.

Experienced, trusting

Making it work

takes a little longer ...

clients unfailingly under­stand that they must com­municate all they know about their case and their intentions for that case to their lawyer. But most of us have clients that have never used a lawyer be­fore, and it is just human

making it work

takes a bit of time .. .

Words and music by Doug Bennett, recorded by Doug and the ·slugs

David }. Blllnsky Is

a partner at Lakes Stralth & Blllnsky, and Is past-chair of the Law Practice Management Section, BC Branch, and can be reached on the Internet at lntegral@dlrect.ca.

April 1996

nature to intentionally or unintentionally fail to disclose a key stumbling block against their case. When you are listening to opposing counsel's opening statement and a key bit of fact hits you between the eyes, the best you can do is maintain your poker face and resolve to do it better next time. Here the re­sponsibility for effective client communication must rest on the shoulders of the lawyer.

As case loads grow, and the time and finan­cial pressures increase on lawyers, there is a tendency to shorten the time spent with clients. This can be a false economy. Furthermore, be­cause lawyers understand the law and the legal process, we can fall into the trap that we think we know more about a client's case than our client. We then perversely put the majority of our time into speaking with everyone but our

client, including opposing counsel, experts and witnesses, thinking that this will eventually pro­duce the result desired by the client.

Time for some perception checks. Today, clients need less legal work and more legal understanding and compassion(" deskside man­ner"). There is a saying that if you are holding a hammer, all the problems in the world start to look like nails. How many times, as lawyers, have we tried to fit round pegs into square legal holes?

At the first interview, have we assured our­selves that we fully understand the needs and expectations of the client? Do they want a Cadil­lac result, but on a Chevrolet budget (even Chevys are expensive these days!)? Perhaps all they need is some direction and information. Wrongly assuming that our client desires a Writ to be issued and their day in Court may only produce a confused client, besought by uncer­tainty, apprehension and anxiety. Or on that first interview, there may be a still, small voice from deep within yourself that may say that this client could be trouble, not only with fees but also with accepting your instructions, with dis­astrous outcomes for your case. After all, while the client is free to select any lawyer they wish, it is also the prerogative of the lawyer to select his or her clients. How can you communicate joint needs and expectations with clients for the betterment of your practice and the management of your files? Here is a selection of suggestions:

• There are at least three identifiable stages in dealing with a new client which require spe­cial attention. These are: the first interview, just before the biggest step in the case (the signing of the contract, or going to trial or hearing), and lastly, when sending the final bill. Each of these deserve special consideration.

Continued over

13

PRACTICE TALK

14

Communicating clearly with clients Continued from page I 5

• What are your posture, mannerisms, and approach communicating to the client? Are you allowing interruptions such as telephone calls to interfere with the client's narrative? Are you tapping a pen or playing with a paper clip? Do you sit square and straight in your chair,leaning slightly forward, maintaining eye contact with your client? Are you making suitable "uh huh" sounds every so often? Your body language can subtly say that either you are interested, or that you wish the interview to be over.

• At the first interview, develop and use a common format and information checklist. Go over areas such as: "why are you here?" and "what do you want to achieve by this?" . After all, they may be seeking simply to know that they are "in the right", for the satisfaction of their own conscience. By raising the issue of the client's expectations and what they will cost at the forefront, you will do both your client and you a service and may save yourself a lot of grief downstream.

• Do not be hesitant to raise your concerns about the case with the client at the start of and during the case. Your client is looking to you for professional help and guidance. By downplay­ing potentially adverse findings of facts and law, you may be setting yourself up for an irate client, an unpaid fee and perhaps an investiga­tion by the Law Society and a report to your insurer.

• Assume the worst about what your client is telling you. I attended a seminar a little while ago and the speaker asked the audience to raise their hands if they never had a client lie to them. Needless to say, no one's hand went up. Better you uncover the unpleasantness now rather than later. (What do you say, clients don't lie? Of course not! They just don't have a proper appre­ciation of the truth!)

• At the first interview, discuss fees, dis­bursements and taxes, and how and when they will be paid. Counsel the client to make an informed decision as to whether or not they can afford the remedies they are seeking. Discuss what will happen if they lose, not only in terms of your bill but the costs of opposing counsel as well. Discuss the options open to them, legal and non-legal. You may gain a client's respect by indicating to them that their problem may

not be economically worthwhile to pursue, or be better solved in a non-legal way. If they still wish to proceed against your advice, tell them to seek another lawyer.

• Take the last 1 I 2 hour of the first inter­view, and ask the client "What is the one thing that you do not want to see exposed during these proceedings?" By raising the issue early on, and confronting it, you will be accomplishing at least two things: One, if the case proceeds, you will be better prepared to deal with it, and two, your client will realize that this issue or fact probably will come out in the proceedings, and they must be prepared to handle this. You may gain a measure of respect by being forthright, upfront and willing to deal with difficult issues.

• During the progress of the case, send your client copies of every piece of paper that comes across your desk, favourable or not, with your update on the file. Better to confront the dual demons of uncertainty and unfavourability ear­ly on rather than waiting for them to somehow go away. Being forewarned, you may be fore­armed. Or, your client may decide to change their tactics or their views towards settling. Af­ter all, lawyers are not miracle workers, and your client deserves to know your comfort limits with the case.

• The pressures will be greatest just before the biggest step in the case. If your client is going to crack, this is it. You can help your client deal with this difficult time if they have complete trust in you and your judgment. This foundation must have been built from day one of the case. By properly communicating with your client, the chances of miscommunicated expectations, un­settling facts, unprepared attacks and unsettling disclosures will be reduced.

• Take time to do perception checks with your client throughout the file . Do they want to go to trial? Or, for example, is a messy divorce and property division necessarily what they are seeking? Are you assuming they want this mat­ter to go on at full bore? It may be that they are uncertain and unclear on their alternatives, and a further discussion may be in order.

• Back yourself up. Send letters to your cli­ent outlining your discussions and the decided steps to be taken, and the costs of same. If you find yourself in a taxation hearing, will the Reg­istrar tend to believe the client who has only dealt with one lawyer, or the lawyer who has dealt with many clients? Your documented file will go a long way towards persuading the trier

BarTalk Voi.S No . 2

of fact towards your cause. . • At the time of the final bilt draft your

document with care. After alt you are justifying not only your account to your client, but your handling of the entire file . Your bill at the very least, should touch upon the steps taken, the risks averted, the positive results obtained and most importantly, the expectations fulfilled by you during the progress of the file. You are saying to your client, "I have fulfilled your requests of me as your lawyer, and now it is your turn" (whether or not you have funds in trust).

• Always concentrate on the needs and ex­pectations of the client, which may not be con­fined to legal issues. Build a positive relation­ship. Be frank and open. When seeking instructions, use the time to emphasize the care

PRACTICE TALK

and effort you are and will be putting into the file . Demonstrate that you are handling the file for the client because you are concerned with their legal and emotional well-being. Show that your being paid is the reward and result of good work, and not the reason you are handling the file.

Increasingly today, lawyers are being seen as general problem-solvers. This new role casts our responsibilities towards clients in perhaps a dif­ferent light than before. Moreover, due to in­creasing economic p ressures, we are having to look at the practice of law as less of a profession and more like a business. Hopefully we can meld the best of both worlds and yet follow the prime directive to boldly go (on behalf of our client) where no one has gone before. +

Microsoft strikes back! Software giant responds to BarTalk columnist In our last issue ofBarTalk David Bilinksy took a shot at Microsoft's much ballyhooed Windows 95 operating system. Among other complaints about the product, Bilinsky reported that it could not be made to work on his Toshiba laptop computer. In the interests of fairness , we asked Microsoft to respond and Lindsay Sparks, of Microsoft's Organization Customer Unit, took up the challenge. Here 's his response:

Thank you for this opportunity to present an alternative view of the new Microsoft "Win­dows 95" operating system and its significance for the legal profession. With over 20 million copies in the marketplace, Windows 95 has be­come the fastest selling software product ever. One reason for this is that users can significantly increase their productivity by upgrading. Kelly Services, the world's largest provider of tempo­rary office personnel, compared Microsoft Of­fice for Windows 95 with the previous version and found that users are able to complete tasks 37% faster and with 36% greater accuracy. Fur­thermore, 70% required no additional training to use the product.

Of course, there are several users who are more conservative and like to wait for a product to be proven before taking the plunge, but the time has now come for anyone who values the time they spend on a computer to make the shift.

April 1996

A good assessment of the current situation was given by Walter Mossberg in his "Personal Tech­nology" column in the Wall Street Journal on February 1, 19961

. Mossberg addresses many of the issues raised in your original article from an independent perspective and concludes that "Windows 95 has proven itself to be a solid, well­designed product", and that "if your hardware is powerful enough, or you are willing and able to improve it sufficiently, it makes sense now to upgrade to Windows 95".

Here is a selection of benefits for users in the legal profession:

• Faster, easier management of information • Find button locates files and documents in

seconds • Instant menu of most recently used files • Easily recognizable long filenames • Instant restoration of accidentally deleted

files • Desktop shortcuts to commonly used doc­

uments, both local and on a network • Quickview preview of files before opening • Faster, easier communications for attor­

neys to keep in touch from home, from the courthouse, from the client's office, or while travelling.

1 The full text of Mossberg's article is online at: http: I I ptech.wsj .comlhtml31 ptfebl.html.

IS

Bilinsky retorts: "Microsoft's article more or less confirms my own experience. As Lindsay Sparks recom­mends, make sure you have hardware and soft­ware that can handle Windows 95. Despite an uphill battle, I pers­ervered and was finally successful in installing Windows 95 on my lap­top computer. Howev­er, it was NOT a route for the faint of heart."

16

• Built-in networking for all the most popu­lar networks

• Built-in E-mail for both corporate networks and the Internet

• Built-in FAX for both sending and receiv­ing faxes

• Widest possible choice of applications • Excellent compatibility with existing Win­

dows and MS-DOS applications • Access to a new generation of applications

specifically designed for Windows 95, includ­ing Microsoft Office for Windows 95 with Plead­ing and Table of Authorities Wizards to assist attorneys in document preparation

• Fast, easy, secure connections to legal re­sources on the Internet2

• Easy sign-up for MSNO, the Microsoft Network online service which offers full Inter­net access

• The Microsoft Internet Explorer can be downloaded at no charge from MSN, the Micro­soft home page: http:/ /www.microsoft.com, and other on-line sources

• Easier mobile computing • Built-in automatic power management

maximizes notebook battery life • "Briefcase" synchronizes documents be-

. tween mobile and office or network systems to help you make sure you're working with the latest version of a brief, memorandum or other document

• Full support for PCMCIN plug-and-play portable devices (modems, network, hard disk, etc.)

• Automatic configuration for online and off-line operation

• Direct cable networking uses an inexpen­sive serial or parallel cable to transfer files be­tween laptop and desktop machines

• New accessibility options for physically challenged individuals includes features for the

·manual, visual, and hearing impaired Because of these benefits, we have found that

many members of the legal profession are very interested in upgrading to Microsoft Windows 95. Here are some recommendations for those individuals:

1) Check that you have the necessary hard-

2An example of legal resources in Canada can be found at http: I I www .io.org I -agahtan I

3 Personal Computer Memory Card Interface Adapter

ware to run Windows 95. We recommend a 486 or better with at least 8M RAM and 60M free disk space. For a full set of requirements, consult your local reseller or the Microsoft home page at http: I I www .microsoft.com I windows I tryi­tout/how.htm. This page includes a system checker that you can download which will auto­matically verify your system's suitability for Windows 95.

2) Verify with your hardware vendor that your machine supports Windows 95. The chanc­es are that it does, but your vendor can advise you of any special precautions that may be re­quired for installation.

3) Perform a virus check on your system. 4) Backup all business and personal data on

your system. This is a standard precaution that should be observed when updating or upgrad­ing any operating system on any platform.

Our experience shows that very few people have encountered significant problems. This is confirmed by Mossberg who stc;ttes that "My mail from readers complaining of [big head­aches installing Windows 95] has been remark­ably light." In the unlikely event that such prob­lems do occur, a backup will make it relatively easy to restore a working system.

5) Disable any utilities, screen savers, memo­ry managers, shells, etc. that you may have running.

If you follow this procedure, you will be able to install Windows 95 with absolutely minimal risk of disrupting your system. You will also be able to install new Windows 95 applications from dozens of vendors including Microsoft. Furthermore, almost all existing DOS and Win­dows applications will continue to run exactly as before. Compatibility was a major design goal for Windows 95 and we tested over 2,500 Win­dows applications internally, with our 50,000 , beta testers evaluating many more. In the vast majority of cases Windows 3.1 applications run as well as, or better than they did under Micro­soft Windows 3.1. In some cases minor adjust­ments and workarounds may be necessary. And in the few cases where an application will not run satisfactorily, there is almost certainly a Windows 95 version available from the manu­facturer. You can check for compatibility with specific applications by consulting the Microsoft home page at http:/ /www.rnicrosoft.com. +

BarTa lk Vol.8 No. 2

Resolutions passed by National Council at Mid-Winter Me.eting in Yellowknife The following is a brief summary of the Policy and Public Interest Resolutions passed by Na­tional Council:

1. The CBA urges the Government of Canada and the Provincial and Territorial Govenunents to launch a public consultative process on the Ratification of the International Labour Organ­ization Convention 169 regarding Indigenous and Tribal Populations.

2. The CBA urges the Government of Canada to amend the Immigration Act to define the practice of immigration law so as to make it clear who can provide immigration consultant services and to make it clear who may practice immigration law.

3. The CBA urges persons in both voluntary and staff leadership positions in the legal pro­fession to participate in training courses which address the issues of discrimination and harass­ment in all areas of professional conduct.

4. The CBA adopted a Public Interest Inter­vention Policy which will now be incorporated into the By-Laws of the association.

5. The CBA adopted a Federal Submission Policy clarifying the authority of the CBA and its constituent bodies, both National and Branch, to make submissions on federal matters.

National Council also passed the following Internal Resolutions:

Executive Committee being given the power to appoint the Executive Director of the Associa­tion.

5. The Constitution and By-Laws of the Na­tional Aboriginal Law Section were approved.

6. The site for the 1999 Annual Meeting has been set for Edmonton, Alberta and possible sites for the 2000 Annual Meeting have now been limited to Quebec and Halifax and the matter has been referred to the Executive Committee.

7. The CBA urges the Government. of Cana­da to engage in a public consultation on the Ratification on the American Convention on Human Rights and recognition of the jurisdic­tionofthe lnter-AmericanCourtofHumanRights to hear individual complaints.

8. The CBA has urged the Minister of Justice and the Government of Canada to formally raise with the Attorney General of the Government of the U.S.A. the non-disclosure of material affida­vit evidence in the extradition of Leonard Peltier.

A number of other resolutions were defeated, referred or tabled to the 1996 Annual Meeting including the draft Declaration on the Rights of Indigenous Peoples, the language of the Code of Professional Conduct, a restructuring of the Law Practice Management Section, the term of office of the National Executive Committee and the purpose of the General Practitioners' Confer-

1. The National Executive Committee is to ence. • consult with the Branches, Finance and Plan­ning Directorate and other Committees of the Association to consider establishing an appro­priate fee level for judicial members and then report its recommendations for consideration by National Council at the 1996 Annual Meet­ing.

2. The By-Laws are clarified by confirming · the President's power to appoint special com­mittees but making it clear that such appoint­ments are subject to Council ratification.

3. Non-members of the CBA will be entitled to attend Annual or Mid-Winter Meetings but will be required to pay a higher fee than the fee paid by members of the association.

4. The By-Laws and Regulations of the CBA are amended to reflect changes to the roles of the Executive Director, the Executive Committee, the President and the Senior Officers, with the

April 1996

Law Society & CBA heads meet with AG over LSS dispute As this issue of BarTalk went to press, Law Soci­ety Treasurer Karen Nordlinger and BC Branch CBA President John Waddell were scheduled to meet with Attorney General Ujjal Dosanjh on March 27 in an effort to help resolve the contin­uing dispute over legal aid funding.

The dispute boiled over on March 20 when the board of the LSS announced that it would not take on any new cases after April 1st, 1996.

The LSS board and the provincial govern­ment have been deadlocked over budget restric­tions for many months. According to LSS Exec­utive Director David S. Duncan, the society's fiscal situation has become critical, with an accu­mulated deficit of almost $22 million at the end of March. +

Executive announced for UBC Law Alumni Association

Lawyer Peter Brown is the

new president of the USC

Law Alumnni Association.

The 1996 Executive Board

includes Madam Justice Mary­

Ellen Boyd (past president),

Georgialee A Lang (secre­

tary-treasurer), Maria Morel­

late, Lloyd McKenzie, Gillian

Gardiner, Tricia Smith, Bob

Die bolt, Master Alan Donald­

son, Richard Berrow and

Anna Fung.

17

Ann Mclean

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

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

18

ACTS IN FORCE

Motor Vehicle Amendment Act (No. 2),1995, S.B.C. 1995, c.43, (Bill 50), amends theMotor Vehicle Act, R.S.B.C. 1979, c.288, adding additional rules for the use of roadways and highways by cyclists.

sections 14 - 21 of the Act in force Febmary 1, 1996

Treah; Commission Act, S.B.C.1993 , c.4, establish­es the British Columbia Treaty Commission, a tripartite commission appointed by the federal and provincial governments and First Nations Summit, which will facilitate the negotiation of

· treaties among the governments and first na-tions.

in force March 1, 1996

Miscellaneous 'statutes Amendment Act (No. 3), 1995, S.B.C. 1995, c.53, (Bill 55), amends the Treaty Commission Act, S.B.C. 1993, c.4, confirm­ing the validity of the prior appointment of commissioners.

section 39 of the Act in force March 1, 1996

Residential Tenancy Amendment Act, 1993, S.B.C. 1993, c.68, amends the Residential Tenancy Act, S.B.C. 1984, c.15, providing that the registrar may publish arbitrators' decisions and authoriz­ing regulations respecting a standard form ten­ancy agreement which may become applicable to all tenancies. that portion of section 16 of the Act which en­acts section 39.1(2) of the Residential Tenancy

Act in force March 31, 1996 and section 2 of the Act (standard tenancy agreements)

in force July 1, 1996

REGULATIONS TO NOTE

Child, Family and Communihj Service Act, B.C. Reg. 21 I 96, the Child and Family Review Board Regulation supersedes B.C. Reg. 450195 of the same name, providing for the appointment, re­muneration and expenses of the board and a review procedure.

effective January 29, 1996

Trade Practice Act, B.C. Reg. 134175, the Trade Practice Regulation No.1 is amended to provide that it is a deceptive act or practice under s.3 of the Act to collect or attempt to collect from a consumer a fee for offering or attempting to arrange a loan unless the fee is deducted from the loan proceeds.

B.C. Reg. 50/96 effective Febman; 15, 1996

Residential Tenancy Act, B.C. Reg. 49 I 96, the Tenancy Agreement Regulation is made, pre­scribing the form of agreement and terms which must be included in a tenancy agreement.

effective July 1, 1996 •

We're on the Net! The BC Branch of the Canadian Bar Associa­tion can now be reached through the Inter­net. For general E-Mail, the address to reach us is cba@bccba.org. If you wish to address your correspondence to someone in particu­lar, please use the following addresses:

Robert Smethurst, Q.C., Executive Director: rsmethurst@bccba.org Patti Graham, Director of Administration: pgraham@bccba.org Ry Glover, Communications Officer: rglover@bccba.org Fran Hodgkins, Section Co-Ordinator fhodgkins@bccba .org Colin Campbell, Advertising Manager ccampbell@bccba.org Margot White, Public Affairs Officer mwhite@bccba.org Ann McLean, Legislation and Law Reform Officer amclean@bccba.org E-Mail is the first step for the Branch into

the Internet. Please take advantage of this convenient medium to contact us. It is hoped that a Branch web page can be estab­lished sometime in the near future . We'll let you know when it's ready. •

BarTa lk Voi.S No. 2

Editor defended! "Queens Counsels" debate continues In the last issue ofBarTalk, a reader took issue with an "elliptical expression" allegedly pope­trated in an earlier issue of BarFax, the fax newsletter of the BC Branch of the CBA. The alleged offence was said to have been committed in the top headline of the said fax newsletter. For this issue, another reader contributes an alter­nate viewpoint.

To the Editor: I read with interest the letter from Robert J. Harvey, Q.C. in which he commented with dis­pleasure on the Bm·Talk (sic) headline: "Govern­ment names Queen's Counsels." Mr. Harvey noted that "The headline writer seems not to know that the plural of counsel is 'counsel'."

The Editor of BarTalk responded quite apol­ogetically to Mr. Harvey's criticism, stating that "we would be so much happier were we able to let ourselves 'off the hook' with some rational excuse or combination of excuses." Mr. Harvey is certainly right to suggest that" counsel" is the preferred plural of the word. For example, my edition of Fowler's Modem English Usage notes

that "Counsel has also the semi-concrete sense of the person or persons (never counsels) pleading for a party to a lawsuit..."

However, there is some authority for the use of" counsels." TheOxford English Dictionary states that one "rarely" finds "counsels" used as the plural, and offers by way of illustration a quota­tionfrom the writings ofThomas Jefferson: "They have ... changed one of their oldest counsels with the preparation of a memoir to establish this." But, then, who would rely with any confidence on an American in such weighty matters of grammar and style?

Yours very truly, Rodney L. Hayley, Lawson Lundell Lawson & Mcintosh

The Editor replies: The wonderful thing about gram­mar, as for the law as well, is that there is always room for the exception. And I, for one, will take my stand with the Americans and hereby withdraw the grovel-ling apologtj issued in the last BarTalk. +

Let your fingers do the walking CLE initiates new phone-in law updates CLE is embarking on a new and exciting way of bringing the legal experts to you, rather than having you come to them. "BC Law in the Morn­ing" is a series of four 1-hour updates in Civil Litigation, Family Law, Criminal Law and Real Estate. Each update is scheduled for 8 a.m. and includes presentations by some of the leading experts in each area of law. The materials will consist of digests of what your faculty consider to be the most important cases.

This new approach will make CLE available to you in your office, car, or home. You'll be able to "phone in" from wherever you have access to a touch-tone phone. To participate, all you have to do is register in advance with CLE and you'll receive a telephone number that allows you to connect to the conference call. Then, just before 8 a.m. on the morning of the seminar, dial in and you'll be connected to the most up-to-date infor­mation in your area of interest.

April 1996

The list of faculty is impressive. The moder­ator for the four programs will be Jim Taylor, Q.C., of Taylor Jordan Chafetz. The other out­standing faculty are:

Civil Litigation (May 12): The Honourable Chief Justice Allan McEachern and D. Barry Kirkham, Q.C.;

Family Law (May 30): The Honourable Mad­amJustice Patricia M. Proudfoot, Trudi L. Brown, Q.C. and Jeffrey A. Rose;

Criminal Law (June 6): Richard C.C. Peck, Q.C., Josiah Wood, and Robert H. Wright, Q.C.

Real Estate (June 13): The Honourable Mr. Justice David Tysoe, Michael Kale£ and R. Keith Thompson.

Watch for your CLE mail for details or call our customer service staff at 893-2162 or 1-800-663-0437. •

National Construction Law Round Table 1996 This year's Construction Law

programme will be offered in

a Round Table format. Partic­

ipants will have opportunity

to learn from leading mem­

bers of the national construc­

tion law bar who bring with

them a variety of experiences

and perspectives on current

issues of importance to law­

yers whose practice includes

construction law matters.

Time will also be dedicated

to allow for discussion be-

tween conference partici­

pants and speakers.

Topics will include: contrac­

tual issues, lien claims, dam­

age claims, insurance and

bonding issues, extraordinary

remedies and different ways

to resolve disputes such as

ADR, litigation and partner­

ing-all offered with a nation­

al focus , taking into account

particular differences in deal­

ing with federal contracts.

For further information con-

tact Nadine Lessard, Pro­

gramme Coordinator, at the

National CBA offices, 1-800-

267-8860.

19

20

BarTa/k is published by the British Columbia Branch of the Canadian Bar Association, lOth Floor 845 Cambie Street Vancouver, BC V6B 5Tl TEL: (604) 687-3404 FAX: (604) 669-9601

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

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

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

CIBC TRUST CORP. 665-1784

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

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

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

The BC Branch of the Canadian Bar Associa­tion represents over 7,600 lawyers within British Columbia.

The BC Branch is dedicated to improve and promote access to justice, to review legislation, initiate law reform measures and advance and improve the administration of justice.

On behalf of the profession, the BC Branch works to improve and promote knowledge, skills, ethical standards and well-being of members of the legal profession and promotes the interests of its members.

CBA conference brought together thoughtful speakers from across the country

(Top left) Media turned ·out in force at

the conference--both during the full

session and for the luncheon speech by

Roger Fisher, Professor, Harvard Law

School. (Top right) For mer Prime

Minister Joe C lark shares a quiet

moment with Senator Gerald Beaudoin.

(Left) BC Branch CBA President John

Waddell and federa l Intergovernmental

Affa irs Minister Stephane D ion discuss

some of the ideas broached during the

conference.

Conference caused ripples across the country Continued from Page One

The conference caused a ripple effect that extended before and after the actual date when it took place. On the Friday im­mediately prior to the event, Tlu Vancouver Sun published a joint column by BC Branch President John Wad dell and Jeff Scouten on the Op-Ed page. The two warned that Can­ada was "sitting on a knife edge" after the narrow rejection of Quebec separation in last fall' s referendum.

Coverage continued after the event with a rash of letters in local newspapers and printed excerpts from speeches by partici­pants. The Sun printed comments by Marie Bourgeois, former president of the Federa­tion des Francophones de la Colombia-Bri­tannique, and The Globe and Mail printed

comments by Joe Clark. The Globe later printed a letter by John Waddell reacting to an earlier column critical of the conference by Lysiane Gagnon.

There were many reactions to the conference by the participants themselves, who heartily enjoyed the spirited and thoughtful discussion. But perhaps the comment that best summed up the spirit of the day was printed later in a letter to the editor of The Sun .

It read: "Last week, 350 citizens devoted a full Saturday, a sunny one, to sequester themselves in the dark caverns of Robson Square Conference Cen­tre to listen to speakers representing a myriad of perspectives, experience and opinions about the future of Canada in a changing world. A true ex-change spoken from the heart." +

BarTalk Vo l. 8 No . 2