Wendy King – Beyond Legal PAGE 13 | Alex Shorten – B.C. Code PAGE 12

PUBLIC SECTOR LAWYERS | DCC | FLEXIBLE WORK ARRANGEMENTS

AUGUST 2013 | cbabc.org

2 BARTALK / AUGUST 2013

BARTALK EDITOR Deborah Carfrae

EDITORIAL BOARD CHAIR Michael Welsh

EDITORIAL BOARD MEMBERS Candice Alderson

Sandra Harper Ellen Hong Oana Hyatt

David Madani Gail McKay

Sarah Nelligan Clint Sadlemyer, QC

Rose Shawlee

BARTALK SENIOR EDITOR Maureen Cameron

STAFF CONTRIBUTORS

Darcy Brennan Simon Bursell

Judy Cave Tanya Galic

Stuart Rennie Karen St. Aubin Jennifer Weber

Judy Yen

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2013 PROVINCIAL COUNCIL AWARDSCBABC WORK LIFE BALANCE AWARD

CERTIFICATE OF APPRECIATION

Ward Branch received the CBABC Work Life Balance Award on behalf of his firm Branch MacMaster LLP.

Honoured by CBABC President Kerry Simmons in recognition of their six years of service on the Provincial Council. L-R: CBABC President Kerry Simmons, Carmen Rogers, QC, Timothy Delaney, David Dundee, and Grant Currie.

PRESIDENT’S MEDAL

CBABC HARRY RANKIN, QC PRO BONO AWARD

CBABC President Kerry Simmons presented Donald Sorochan, QC the CBABC Harry Rankin, QC Pro Bono Award.

CBABC President Kerry Simmons presented Eric Gottardi with the President’s Medal.

LETTERSRESPONSE TO THE JUNE 2013 ISSUE

This was the best. Thanks for the laugh. — Katie Armitage

Memo From the Partners – Tony Wilson

Dealing with Difficult People – David Bilinsky

I just read your BarTalk article about dealing with difficult people and I thought you might enjoy some positive feedback as I found it very helpful.

I’ve been practising for two years now and just this week I encoun-tered the most difficult client who was extremely rude to myself and my staff, unfairly accusing us of incompetence and questioning our integrity, and I couldn’t help but be a little rattled by his comments. So reading your article this morning was exactly what I needed and it helped to put it all in perspective.

I guess this is the kind of thing I have to get used to and overcome in the future, as there is no avoid-ing difficult people in business.

Either way, I thought you might want to know that your article did help someone out today.

— Anonymous

Great article re: Difficult People – I have scanned into my library for future reference. — Philip K. Barton

AUGUST 2013 / BARTALK 3

ContentsVOLUME 25 / NUMBER 4AUGUST 2013

Departments4 FROM THE PRESIDENT The Future by Kerry L. Simmons

5 EXECUTIVE DIRECTOR Lessons from the Corporate World by Caroline Nevin

6 PRACTICE TALK Why Embrace Leadership? by David J. Bilinsky

7 DAVE’S TECH TIPS

8 NOTHING OFFICIAL Hey Henrik... Your Brother is Ugly! by Tony Wilson

Sections 10 SECTION UPDATE Public Sector Lawyers Appellate Advocacy Webinars

Features12 B.C. CODE by Alex Shorten

13 BEYOND LEGAL by Wendy King

14 INSIGHT FROM “IN-HOUSE” by Christine Murray

15 CRIME AND PUNISHMENT IN ANIMAL CRUELTY CASES by Marcie Moriarty

16 WEST COAST ENVIRONMENTAL LAW by Andrew Gage

Guests9 FLEXIBLE WORK ARRANGEMENTS by Linda K. Robertson

17 DOWNTOWN COMMUNITY COURT by Carmelle Dieleman

Inside This IssueBarTalk goes “In-house” this issue. We look at ethical and business challenges for corporate, environmental and other internal legal counsel, and give tips for ex-ternal corporate counsel. Other features are innova-tive legal work-sharing arrangements, the Vancouver Downtown Community Court program and animal cruelty laws. News and Events2 2013 Provincial Council Awards 18 Hundreds of The Honourable Lance Finch’s Colleagues Gathered to Celebrate His Career New Volume of The Canadian Bar Review Now Online Join the Conversation with Futures Calling All Lawyers – Volunteer to Be a Mentor 19 Supreme Court Ruling Brings Clarity in Conflicts Rules Learn, Connect & Experience the CLC – in Your Own Backyard! 20 View from the North by Clint Sadlemyer, QC CLEBC Update 21 Athena’s Self-Defence for Girls-To-Be Contact bartalk@bccba.org Georges A. Goyer, QC Memorial Award for Distinguished Service CLC Conference in Saskatoon 2014 Directory 22 CBABC WLF News Nanaimo Battle of the Lawyers’ Bar Bands CBABC 12th Annual Battle of the Bar Bands Lloyd Duhaime’s New Appointment PLAIN 2013 Conference Also In This Issue2 LETTERS11 MEMBER SERVICES23 LAW FOUNDATION OF BRITISH COLUMBIA24 PROFESSIONAL DEVELOPMENT25 DISPLAY ADS

26 BAR MOVES

27 NEW MEMBERS

4 BARTALK / AUGUST 2013

periences and those of our clients, and challenge assumptions under-pinning some ideas for change.

Most importantly, the voice of lawyers must be expressed and heard by those who may make the decisions which will influence our day-to-day practice and our ex-perience of what it means to be a lawyer. At the same time, lawyers must continue to adapt to meet the needs of our clients and the changes in society at large.

The National CBA is leading an examination of the future, through the CBA Legal Futures Initiative. The primary focus of Futures will be the future legal marketplace and the work of law-yers in the next decade and be-yond. Specific attention is being paid to the areas of education and training, business structures and innovation, and ethics and regu-lator implications. The consulta-tion with clients, the profession and other legal service providers has begun. You can check out this work at cbafutures.org/reports.

The Law Society’s Legal Service Provider Task Force is exam-ining the landscape of legal service pro-viders and who should regulate those providers. Questions faced

by the task force include: Which legal services providers should be regulated? Who should determine the scope of practice of each type of provider? Would having one

regulator increase access to legal services and justice? The Interim Report of the Task Force is avail-able on the Law Society website (lawsociety.bc.ca) and will form the basis for consultation, which begins in September.

The provincial government has been moving for-ward with its goal of moving general civil claims, traffic tickets and strata disputes from court to ad-ministrative tribu-nals, in some cases on a mandatory basis and in others, vol-untary. There will be circumstances when

participants will not be able to have representation even if they want it. What do you think about that? Where should people re-solve their disputes? What safe-guards are necessary to uphold our values of the rule of law, in-dependence of decision makers, and fairness?

The future of the legal profes-sion has always been a topic of study and discussion, but these days more radical changes are contemplated. Your engagement will help the CBABC articulate the voice of the profession.

Kerry L. Simmons president@bccba.org

FROM THE PRESIDENTKERRY L. SIMMONS

The Future Questions that need answering

As I pass the role of President to Dean Crawford of Coutts Pulver LLP on August 20, I find myself look-ing to the future.

What do you think the future holds for the legal profession? Who will be providing legal servi-ces in the future? What does the future hold for our courts?

These questions are being examined right now by the CBA, the Law Society, courts, and government in a number of different ways. Ideas being explored will fundamentally change the way in which some lawyers practice law. The knowledge and skills required to succeed are not those any of us learned in law school. If we, as lawyers, want to influence and shape this change, we need to understand the issues, share our ex-

The voice of lawyers must be expressed and heard by those

who may make the decisions which will influence our day-

to-day practice and our experience of what it means to

be a lawyer.

AUGUST 2013 / BARTALK 5

EXECUTIVE DIRECTORCAROLINE NEVIN

Lessons from the Corporate World Process improvement, transparency and knowledge management

The more you understand and apply lessons from the corporate world, the more effective you can be in the face of change.

Woven in to many of today’s “adapt-and-thrive” law firm suc-cess stories are three key threads: process improvement, transparen-cy, and knowledge management. I’ve seen the same lessons hold true here in B.C., from the biggest law firms to the smallest boutiques and law departments making news for their innovative approaches.

Process improvement takes many forms, but at its core it is more than a philosophical com-mitment to “doing better;” it is about being scientific about the steps involved in any work pro-cess, and obsessive about how they can be narrowed down to the fewest, most effective and valuable steps from the client’s perspective. Large corporations do this all the time, but for a solo lawyer or small in-house law department, it is perhaps even more important – your time needs to be focused on

the tasks that give cli-ents the best return for their dollar. Technol-ogy can be a big help. Consider giving clients the option of “opening” their own file by filling out online forms be-fore your first meeting (e.g. bcheri-tagelaw.com)or purposefully shar-ing templates that allow clients to do some of their own work.

Transparency, in a business context, is about removing any-thing that interferes with two or more parties understanding what each other is doing. Lack of trans-parency inevitably breeds ambi-guity, gaps in expectations, and unfair advantage to one party. In the world of legal practice, the concept of transparency is most often applied to billing (e.g. river-viewlaw.com), but clients are also clear that it applies to understand-ing clearly how their matter will be handled, what the reasonable expectations are of the outcome, and what’s happening with their file (e.g. a simple intranet site that

the client and lawyer can both ac-cess). It’s about a client-as-partner approach to a shared problem-solving project, and it’s as true in the in-house world as it is in private practice.

Knowledge management is a big name for a simple idea: making

sure that any useful insights or processes anyone in the organ-ization does or learns today are shareable, accessible and use-able by anyone else who might benefit from it tomorrow. It’s about taking all of the time and energy of “re-inventing the

wheel” a thousand times over, and putting it into work that is con-siderably more valuable to clients and employers.

The CBA’s Legal Futures Initia-tive has collected some fascinat-ing research about business trends and practices, and how they’re impacting lawyers and law firms. Take a look around the website cbafutures.org and start to engage in some new conversations about business and the law – including those two lunches I recommended – and let’s create more of our own “adapt-and-thrive” success stories.

For the price of two lunches, you could learn a lot. This August, consider meeting with at least one corporate counsel and one non-lawyer business client. This is the time of year when we are all preparing for another busy fall ahead and wondering what, if anything, we can and should change. We face the same number of hours in the day, the same financial and performance pressures, and

the same feeling of being expected to do more with less. What we may not have – and could really use – is a business-oriented per-spective on our challenges.

Being a lawyer is both a noble profession and a practical busi-ness. Whether you are in private practice, working for a pub-lic institution, or reporting to a corporate board, your work is affected by economic and business management principles.

Caroline Nevin cnevin@bccba.org

6 BARTALK / AUGUST 2013

GO ONLINE FOR MORE INFORMATION

DAVID J. BILINSKY

practicetalkWhy Embrace Leadership? The time has come to make a plan

simple reason that we are failing to meet the needs of all of our potential clients. The evidence is everywhere if you look for it, such as the rise of the self-represented litigant, the growth of websites such as legalzoom.com and the cry that the middle class can no longer afford lawyers.

The railroads once saw them-selves as being in the railroad busi-ness. As a result, other methods of moving goods arose such as planes, trucks and automobiles. What the railroads failed to recognize is that they were in the transportation business, not the railroad business. And I submit that we, as a profes-sion, are caught in the same myopia.

How do we define what business we are in? We need some thoughtful leadership here to help the profes-sion build a business plan for its fu-ture. We are problem solvers. We are facilitators. We are dispute resolvers. But without leadership and a vision of where we can go, I fear that the profession will continue to decline.

The new overriding theme for the profession should be leadership. We

need it at all levels and in all facets. We need it in the governance of the profession, in the courts and in the Bar associations. We need to let go of the fear of change and see where the profession could go if it was allowed the freedom and creativity to grasp the new frontiers and with them, the new enabling technologies.

We need, in my personal opinion, to loosen the regulations around how lawyers can provide services, such as forming new business re-lationships with other profession-als. Clients do not want lawyers or law firms. Clients want solutions to their problems. If we don’t al-low lawyers to be creative in how they can collaborate with other professionals to form the kind of businesses that meet those needs, then clients will look elsewhere. Over-regulation chokes off crea-tivity and growth as innovators are stopped dead in their tracks, fear-ing professional discipline. We are killing the future of the profession.

Take CPD credits for example. Across North America, topics on how to market a practice or how to financially run a practice do not typically qualify for CPD credit. Yet, a significant number of law-yers end up in trouble every year for not being able to profitably run

a practice!Other jurisdictions

have allowed these kinds of changes to start, such as in Aus-tralia and the UK.

We need to instill entrepreneurial leader-ship deep within our profession to allow it to start changing to meet the new realities.

We need a dialogue and a plan for how to bring about this change, starting right from law schools to law societies and Bar associations all the way into the courts.

But first we must embrace a cul-ture of leading change by embra-cing visionary leadership. Nothing less than the future of the profes-sion is riding on this.

Thank you to my colleagues Steve Gallagher and Shawn Ho-lahan for seeding my thoughts on this topic.

r And I’m hangin’ on best as I canCause I know this whole crazy ride’s in your hands

It’s your plan… r

– Music, lyrics and recorded by: Dustin Lynch

What business are lawyers in? This is the fun-damental question that we face at this time. Many would answer that question that we are in the business of providing legal services. But are we? Is that the best way to characterise what we do? And why is this important?

This is vital, in my view, for one simple reason. The legal world today is in decline. We are letting others eat our cake for the

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: daveb@lsbc.org Blog: thoughtfullaw.com

The views expressed herein are strictly those of the author and may not be shared by the Law Society of British Columbia.

AUGUST 2013 / BARTALK 7

Where are the thoughtful pieces today on the future of the legal profession and leadership?

Here are a smattering of them:

Frederic S. Ury and Jordan Furlong point out the three big factors that are shaping the legal profession today: Globaliza-tion, technology and regulatory change. Jordan and Frederic outline their views on the new roles for Bar associations in to-day’s environment.(americanbar.org/publications/bar_leader/2012_13/july_au-gust/what_future_legal_mar-ket_means_lawyers_bar_asso-ciations.html)

Rachel Van Cleave is dean and professor of law at Golden Gate University School of Law and writes a very interesting post on trying to define what lawyers are at their essence and how pro-moting this at law schools can help the profession. (saltlaw.org/blog/2013/05/13/future-of-the-legal-profession/)

The Innovating Justice Awards are designed to stimulate in-novations in the justice sector. Through the awards program, law professionals can identify the most promising developments

in the field. Innovators are motivated to improve and to apply their innovations across borders. Nominees and appli-cants for the Innovating Justice Awards will be able to share their setbacks, successes and best practices. The Innovating Justice Awards are promoted by HiiL, which is an advisory and research institute for the justice sector. HiiL’s mission is providing crucial knowledge to make law work for people and their organisations. (in-novatingjustice.com/index.php?pageID=83)

Umair Haque writing a guest post on the Harvard Business Review blog states that we need a new generation of leaders. And we need it now. We’re in the midst of a Great Dereliction — a historic failure of leader-ship, precisely when we need it most. Hence it’s difficult, look-ing around, to even remember what leadership is. (blogs.hbr.org/haque/2013/07/how_and_why_to_be_a_leader_not.html?utm_source=buffer&utm_campaign=Buffer&utm_content=buffere2da0&utm_medium=twitter)

John Grimley writing in the International Business Develop-ment blog on “The future of the legal profession: expert pre-dictions for 2012 and beyond” surveys a number of views of people in his article, includ-ing Adrian Dayton who in turn quotes Richard (stated as David) Susskind as follows:

“The economy is not what it

once was, and the mindset that will bring success in the future is not the same as the mindset that brought success in the past. The best way to predict the future is to invent it. This concept may not resonate with you or your firm, but it will reson-ate with a few of the outlier firms — and these outliers will design the law firms of the future.” (internationalbusinessdevelop-mentblog.com/2011/12/21/the-future-of-the-legal-profes-sion-expert-predictions-for-2012-and-beyond/)

The Canadian Bar Association has released its Legal Futures Report entitled: The Future of Legal Services in Canada: Trends and Issues. (cbafutures.org/CBA/media/mediafiles/PDF/Re-ports/trends-isssues-eng.pdf)

It is heartening to read: “[L]aw firms and individual lawyers will have to make important decisions on how to maintain a competitive advan-tage in the provision of legal services in Canada and globally. While these decisions may seem daunting to some people, they also present a vast range of opportunities for the profession to reinvent itself and thereby ensure that it remains dynamic and confident.”

It is uplifting that the profession appears to be facing the new realities. I heartily agree that the best way to predict the future is to invent it.

© 2013 David J. Bilinsky

dave’s techtips

8 BARTALK / AUGUST 2013

nothingofficialTONY WILSON

Hey Henrik... Your Brother is Ugly! The right to offend and insult

Republicans, the Real Housewives of Vancouver, billable hours, the perils of gender neutral drafting, Christmas cards and the many other crowded fires I’ve walked into yell-ing the word “Theatre” during my 10-year stint writing this column (... patiently awaiting the gold watch or the book deal from CBA!). Doug Mah’s recent col-umn in CBA’s National addressed free speech because, like me, he cracked a joke in one his col-umns that someone took offence to. Doug’s been writing his back page column longer than I’ve been writing BarTalk and I immediately felt solace in his strident defence of making a joke, even if the joke offends, insults or rubs people the wrong way.

I’m aware of Section 13 of the Canadian Human Rights Act (the so called hate speech provision) being repealed. However, there’s been a far more entertaining free speech debate in the UK of late in response to the British Parlia-ment’s desire to enact Section 5 of

the Public Order Act; particularly a provi-sion that an “insult” was grounds for ar-rest and punishment. The debate was worthy of an episode of Blackadder, where the poor Dogsbody Baldrick (among others) was regularly subjected to insults from his Master, Ed-mund Blackadder. The campaign was led by Blackadder himself, Rowan Atkinson.

An atheist pensioner who placed a small sign in the window of his home saying, “religions are fairy stories for adults” was told by po-lice he could be arrested under Sec-tion 5 if he refused to remove the poster. An Oxford student was arrested under Section 5 for say-ing to a policeman, “Excuse me, do you realize your horse is gay?” Section 5 was used to issue a sum-mons to a 16-year-old protester for peacefully holding a placard that read “Scientology is not a religion- it is a dangerous cult.” Animal rights protesters were threatened

with arrest under Section 5 for ob-jecting to a seal cull by displaying toy seals covered with red food dye. Section 5 was used by police officers to try to stop a preacher publicly preaching because people might be “offended.” Members of an LGBT (lesbian, gay, bisexual and trans-

gender) group were charged under Section 5 for shouting slogans and displaying placards that condemned the persecution of LGBT people by Islamic gov-ernments. The placards were deemed by police to be “insulting and likely to cause distress.”

Said Atkinson, (far from his Mr. Bean persona), “The clear problem with the ‘outlawing’ of insult is that too many things can be interpreted as such. Criticism is easily construed as insult. Ridicule is easily construed as insult. Sar-casm, unfavorable comparison, merely stating an alternative point of view can be interpreted as in-sult. The simple truth is that in a free society, there is no right not to be offended.”

The government eventually caved and the word “insult” was removed from the Act; the les-son, I suppose, being that the law shouldn’t be used to protect us from having our feelings hurt.

By the way, Daniel’s brother is ugly too.

After my last column about Animal Law, I received a few angry letters from those who I might have of-fended/outraged/insulted by my tongue-in-cheek memo from an imaginary law firm banning expres-sions in the workplace that contained references to animals, and which poked fun at cat ladies and pit bull owners. This made me wonder whether today’s

column shouldn’t be about free speech. And by that, I don’t mean de-famatory speech or speech that is untrue, injurious, hateful, discriminatory, harassing, sexist, racist or damaging to one’s reputation. Nor do I mean cyber-bullying.

I mean the ability to crack a joke about Henrik Sedin’s iden-tical twin brother, or about Donald Trump, Bill Vander Zalm, Animal Law, the RCMP, the Monarchy, the NRA, Tea Party

The views expressed herein are strictly those of Tony Wilson and do not reflect the opin-ions of the Law Society of British Columbia, CBABC, or their respective members.

AUGUST 2013 / BARTALK 9

guestLINDA K. ROBERTSON

One of the big c h a l l e n g e s facing law firms is how to make flex-ible work ar-rangements

both profitable and workable for partners and associates. This is especially challenging with part-time and job sharing arrange-ments. While many Canadian law firms have a small number of law-yers working reduced hours (as part-time work is often described) these arrangements are typically offered to only a very few senior lawyers or for a specific period of time to women returning from maternity leave. There continues to be a stigma that asking for any reduction in targets will move an associate off partnership track and may move a partner into as-sociate counsel status.

In Australia, there has been a cultural shift over the past ten years where the largest firms have embraced more flexible work ar-rangements (including part-time and job sharing) for both partners and associates.

In January of this year, the na-tional newspaper The Australian reported that 10.8 per cent of law-yers in the largest firms now work part-time. This includes 8.1 per cent of partners and a remarkable 30.5 per cent of senior female asso-ciates. While women overwhelm-ingly take advantage of part-time

arrangements (84 per cent), the number of male lawyers work-ing part-time is steadily increasing from 14.2 per cent in 2010 to 16.1 per cent in 2012. There is specu-lation that the increase for men may be due to more men reach-ing retirement age and wanting to dial down their practice.

What is striking about the Austral-ian experience is how much the largest Aus-tralian firms have em-braced part-time ar-rangements and job sharing as both a prof-itable and productive business advantage. The firms look at more than just the revenue generated from reduced hours. They also consider new business brought to the firm by the part-time lawyer and look at leveraging the associate’s work through good delegation practices in order to produce higher revenues for a part-time partner. The firms also have lowered expenses by pro-rat-ing compensation for a part-time lawyer and lowered their recruit-ment and turnover costs due to better retention.

Office sharing is also more com-mon than in Canada. One of the largest firms, King and Wood Mallesons has reduced its over-head by eliminating their corpor-ate lawyers’ offices and moving everyone (lawyers and assistants)

into an open office plan where each person has only a desk with no walls. The larger Australian firms also use job sharing (or two part-time lawyers) to ensure that partners have full associate sup-port if more associates are needed on the team.

The impetus for this widespread change in culture appears to be the high number of female law graduates (almost 70 per cent) that creates a competitive environ-ment for attracting and retaining good lawyers (especially female lawyers). As law is a first degree in

Australia, the young women graduating from school are cap-turing more of the law school spots than their male colleagues. As a result, Austral-ian women make up 46 per cent of the legal profession com-pared to 37 per cent in Canada. How-

ever, despite a higher percentage of women lawyers, the number of Australian women partners (21 per cent) is very similar to here.

Flexible work arrangements are not just a key retention issue for Canadian women lawyers. It is also a generational issue as young-er male and female lawyers strug-gle to manage longer commutes, higher billable hours and the de-mands of two career relationships. The Australian experience shows how law firms can adapt to this new reality while remaining high-ly profitable and productive at the same time.

Linda K. Robertson, BA, LL.B., LL.M., is a Lawyer Coach in Vancouver, B.C. lindakrobertson.com

Flexible Work Arrangements What we can learn from Australian law firms

10 BARTALK / AUGUST 2013

sectionsPublic Sector Lawyers

uThe Public Sector Lawyers Section met in Victoria and

Vancouver to hear a panel of speakers discuss employment issues facing lawyers in three areas of the public sector, a regular feature of their yearly Section calendar. The speakers related the histories and mandates of their respective organizations, and shared their concerns about upcoming negotiations, along with comments on past rounds. Using CBABC Sections’ webinar platform, Sandra Wilkinson (Legal Services Branch Lawyers Association), Karen Truscott (As-sociation of Justice Council) and a small group of Section members at the CBABC offices in Vancou-ver were linked to a boardroom in Victoria where Steve Fudge (B.C. Crown Counsel Associa-tion) and more Section members were in attendance. Steve Fudge spoke of historical improvement in the employment situation of Provincial Crown Counsel. Sandra Wilkinson provided an overview of the work done by the Legal Ser-vices Branch, and developments in her organization’s discussions with the Public Service Agency. Karen Truscott ended the meeting, providing a detailed description of employment issues for Federal Crown Counsel. A webinar re-cording of this meeting is available to members of the Public Sector Lawyers Section and is included with the minutes posted online.

Appellate Advocacy

u The Appellate Advocacy Sec-tion always attracts influential

and informative speakers. Their

Webinars

Using online video conferencing to bring speakers and Section meetings to your office or living room.

Public Sector Lawyers

Meeting in Review: June 26, 2013 Speakers: Steve Fudge, President, B.C. Crown Counsel Association; Sandra Wilkinson, President, Legal Services Branch Lawyers Association (B.C. Ministry of Justice); Karen Truscott, Governing Council, Vancouver Region – Association of Justice Counsel (DoJ) Topic: Employment Issues for Public Sector Lawyers

SECTION UPDATE

Keep Current A review of provincial Section meetings.

Appellate Advocacy

Meeting in Review: May 30, 2013 Speakers: The Honourable Mr. Justice David Frankel, The Honourable Madam Justice Nicole Garson, The Honourable Mr. Justice David Harris – British Columbia Court of Appeal Topic: Vexatious Litigants and Appeals without Merit

AUGUST 2013 / BARTALK 11

GO ONLINE FOR MORE INFORMATION

May 30th meeting was no excep-tion; three Justices of the British Columbia Court of Appeal pro-vided their time to discuss difficult situations arising from vexatious litigants and appeals without merit. The Justices presented their views and joined the Section in a roundtable discussion of the issues. The discussion was wide-ranging and covered the best strat-egies for resolving conflicts that arise in these circumstances, and the perspectives of appellate coun-sel and Justices. As always, the Section Executive was extremely grateful for the Justices’ participa-tion and thoughtful insight.

Webinars

u It would be hard to miss the popularity of video stream-

ing these days as it makes its way into our boardrooms and now our classrooms. The trend toward broadcasting everything from Section meetings to conferences online is all about accessibility, mobility, and convenience and CBABC Sections are finding ways to use the technology to make a big difference for their members.

For Sections based in Van-couver, broadcasting online has helped attract new Section mem-bers from across the province who can watch and participate alongside their colleagues. Out-side of Victoria and Vancouver, the province’s main urban cen-tres, there is limited access to in-person Continuing Professional Development. Speakers at Section meetings are also onboard, saving time and money by presenting from their homes or offices.

In February, the Alternate Dis-pute Resolution (ADR) – Van-couver Section hosted a panel of mediators considering ADR opportunities for strata disputes. A speaker from the AG’s office in Victoria could only attend re-motely due to budget cuts. The audience viewed the presentations remotely or from a boardroom in Vancouver. The Chair of the ADR – Vancouver Section, Neil Hain, acknowledges that technology can help support “remote speaker” connection at a time of “fiscal re-straint” and may soon become the norm, rather than the exception.

Recently, Professor Emmanuel Melissaris, Senior Lecturer in Law

EMAIL: MEMBERS@BCCBA.ORG

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at the London School of Economics, spoke at a webinar hosted by the International Law Section. While Section members in Victoria and Vancouver ate their lunches around a boardroom table at noon, it was well into the evening for Professor Melissaris, who gave his presenta-tion from a laptop in his London flat. Section Co-Chair Jennifer Button sees this technology as a par-ticular benefit to the International Law Section, and appreciates the many advantages and lack of bar-riers. “The speaker need only have available to him or her a computer with a camera and a microphone.”

For lawyers in British Columbia, attending live broadcasts of Pro-fessional Development seminars, or Section meetings, accredited by the Law Society of B.C., can be counted toward the completion of the CPD requirement.

For enrolled CBA members, more detailed information and avail-able minutes from the Section meetings are online at cbabc.org in CBABC Forums and Sections under Professional Development.

12 BARTALK / AUGUST 2013

ALEX SHORTEN

features

In-house lawyers may encoun-ter different unethical situa-tions than in private practice. This article will speak to one example and will summarize

a few of the rules of the Code that in-house counsel should know when faced with potential dishon-esty and fraud by the organization.

I recommend you study the new Law Society’s Code of Profession-al Conduct for British Columbia (Code) to learn how the Code ap-plies to your practice. In addition to looking at the Sections titled Def-initions (definition of “law firm”), Canons of Legal Ethics (2.1-3 Dut-ies to the Client), and Integrity and Competence, zero in on Section 3.2, Quality of Services and Dis-honesty, Fraud by Client rule 3.2-7, Dishonesty, Fraud When Client an Organization rule 3.2-8, Future Harm/Public Safety Exception rule 3.3-3 and Section 3.7 Withdrawal from Representation.

You are employed by a corpora-tion. As provided by rule 3.2-3 and Commentary, you know the corporation is your client, and not the president or some other of-ficer. You hope never to have to experience a situation where the Dishonesty Rules come into play.

The following example is pro-vided to give you some context for the above noted Sections and rules.

FACTSA Senior Executive instructs you to prepare an agreement between

your client and a competitor to consult with each other on setting a floor price for competitive prod-ucts to be sold in Canada and set the price for sales. You explain such an agreement, whether oral or in writing, is likely a crime under the conspiracy sections of the “Competition Act.” He argues no one will know as he and his con-tact at the competitor will have the only copies of the agreement and be the only ones to know. He assumes you can-not tell anyone because “you’re the lawyer.” He demands you pre-pare the agreement.

You decline and ask him to stop the proposed activity, as you know rule 3.2-7 provides, “A lawyer must

not engage in any activity that the lawyer knows or ought to know as-sists in or encourages any dishon-esty, crime or fraud.” He insists you follow instructions.

THE SOLUTIONDo you go to the police? Check out the Future Harm/Public Safety Ex-ception rule 3.3-3 that provides, “A

lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reason-able grounds that there is an immin-ent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.”

Rule 3.3-3 doesn’t apply. The matter does not end there if

the proposed activity is not halted. A rule has been added for in-house counsel. This rule provides a man-datory up the ladder reporting pro-cedure in the organization with the result that if advice to stop the ac-

tivity is ignored after you have reported up the ladder, you have an obligation to with-draw your services from the client. Make sure you read the lengthy commentary. See Dishonesty, Fraud When Client an Or-ganization 3.2-8.

Also, read the rule and the lengthy commentary under Section 3.7 concerning withdrawal. For in-house counsel, in some but not all cases, with-drawing means leaving your pos-ition with your employer and not simply withdrawing from acting in the particular matter. When you are not sure what to do, contact a practice adviser at the Law Society of British Columbia.

Dishonesty and fraud rules for in-house counsel

B.C. Code

As a sole practitioner, Alex Shorten (incoming CBABC Vice-President) is a senior legal and business advisor with experience working with major North American forest products, construc-tion and parking management com-panies. Attend a webinar repeat for Ethical Dilemmas for Corporate Coun-sel and Public Sector Lawyers by Alex Shorten – tinyurl.com/ethdilemmas.

You hope never to have to experience a situation where the Dishonesty Rules come into play.

AUGUST 2013 / BARTALK 13

According to the Can-adian Corporate Counsel Association in-house counsel barometer survey,

approximately 33 per cent of a cor-poration’s legal work is completed by external counsel.1 The study asked respondents about the level of service provided by external coun-sel. Only 6 per cent felt that external counsel had exceeded their expecta-tions; 76 per cent felt that external counsel met their expectations; and 18 per cent felt that external counsel had fallen short of their expectations. The words associated with exceed-ing expectations included: “good lis-teners,” “teamwork,” “innovative,” “smart” and “upbeat.” At the other extreme, associated with falling short of expectations, were: “arrogant,” “passive” and “backward-looking.”

As external counsel, how can you strive to exceed expectations?

A General Counsel often not only takes on the legal and regulatory issues facing an organization but is part of the organization’s busi-ness and/or executive team and as-sists in the development of strategy and policy. Understanding the role that the General Counsel plays for your client and the challenges that the General Counsel faces can help you to be more effective.

Understanding the business and the industry environment your client works in allows you not only to pro-vide legal advice but to assist with strategic solutions for legal issues

facing the organization. Too often, external counsel simply recites the law and does not assist in consid-ering possible business solutions.

External counsel who express a keen interest in the work and the issues facing the organization and are able to provide insights become more a part of the team. Be a problem solver; provide creative solutions that will help your client achieve its business goals.

Establishing a strong, trusting relationship with in-house coun-sel can take time. In-house counsel rarely have the benefit of colleagues down the hall with whom to brainstorm ideas. Making yourself available as a sounding board during brief calls without billing (within reason) can lead to increased work. Being a good listener and establishing your-self as part of the team, rather than purely as a service provider, is an important step to establishing that trusting relationship.

Preventative legal advice can be extremely beneficial to an organiz-ation, but often the in-house team does not have the resources or the variety of training that would allow it to provide that advice. Offering seminars that would be of benefit to non-legal staff – on topics such as procurement, competition law, and privacy – can assist the in-house legal department.

Good communication is critical. Ensure that you have clear instruc-tions on the scope of work, the budget, and the timing expecta-tions for the file you have taken on. If you are exceeding the established budget, make this known early, so that the in-house counsel can plan and set expectations with the busi-ness team. If you are running behind schedule, also communicate this. Do not send a draft letter, pleading, or other document right before the deadline. General Counsel tend to have very full days, and it can be dif-ficult to find time at the last minute

to review and provide input on drafts.

Finally, be cost-ef-fective. Don’t use mul-tiple lawyers on a file unless it is necessary to do so in order to pro-vide expertise. Don’t allow juniors to use a file as a development opportunity without reducing the fees ac-

cordingly. If the area covered is not your area of expertise, don’t fake it. Check with someone else in your firm or refer the client elsewhere.

When preparing bills always apply a value test. Did the client receive the appropriate value for the hours billed? You can be as-sured that the client will assess each bill in that light.

Beyond LegalHow to become more valuable as external counsel

Wendy King is Senior Vice President Government Relations, General Coun-sel and Corporate Secretary at Cen-tral 1 Credit Union. Attend a webinar repeat for Being External Counsel to Government and Corporate Counsel by Wendy King – tinyurl.com/extcounsel.

WENDY KING

1 The Canadian Corporate Counsel As-sociation “In-house counsel barometer survey 2012” – Angus Reid/Davis Ward Philips & Vinberg LLP

14 BARTALK / AUGUST 2013

Fred Headon, Assistant General Counsel, Labour and Employment Law, at Air Canada based out of Montreal, and Julie

Ackroyd, General Counsel for Andrew Sheret Limited, a B.C. owned and operated company, took time out of their busy days to answer some questions and provide insight into the glamor-ous life of in-house counsel. What are some of the experiences you have had working as in-house counsel that you were not other-wise exposed to and what are some of the benefits of working as in-house counsel?FRED: Working in-house has helped me not only better under-stand client expectations, but also exposed me to the kinds of busi-ness processes used in many other fields. This has been a great source of ideas about improving how we serve our clients. Working in-house also provides the opportun-ity to work much more closely with clients and I have learned im-mensely from them. JULIE: I suppose I wasn’t ex-pecting the breadth of issues that can come across my desk in any given day! While I still do a lot of the same work I did for Andrew Sheret Limited before I came in-house (I acted as their external counsel for several years when I was in private practice), there are a myriad of interesting

questions and legal issues that arise on a daily basis, and I really enjoy the challenge of working through these diverse issues. I think this di-versity of work lends to one of the main benefits I have experienced in working as in-house counsel: being so involved in the daily operations of the business gives me a much broader under-standing of the com-pany, which, by ex-tension, allows me to better advise the com-pany on its various legal issues. I also very much enjoy working for just one “client,” as it allows me to really focus my attention on its specific needs, as well as prioritize my workload.

What led you to your position as in-house counsel?FRED: I found myself in-house almost by chance. There are few in-house jobs in my field of

labour law. I expected to be in private practice my whole career. When this position came up, it seemed like a very challenging op-tion (and how challenging it has been!). It also looked like a great way to gain better insight into how clients make decisions, what they expect of lawyers and how our work gets translated into concrete actions in people’s lives. It certain-ly has provided me with that, too.JULIE: With a young child, and a husband who works full-time, I was no longer able to keep up with the pace demanded in full-

time private practice. Or, perhaps I should say, I was no longer willing to devote that much of myself to my career, at the expense of my family. In any event, I knew I needed to make a change, so I was thrilled when the opportunity arose for a part-time position

with Andrew Sheret Limited.

What do you miss about private practice?FRED: I miss the variety of cli-ents. I enjoyed learning about their businesses and their perspec-tives on problems. Fortunately, I work for a large enough employer that there is still much to learn in that regard, just about every day.JULIE: I miss my colleagues at Cook Roberts LLP. They are a great group of people, and ex-cellent lawyers and staff. They were tremendously supportive of me during my time there, and I wouldn’t be where I am now without them.

CHRISTINE MURRAY

Christine Murray is a partner at Cassels Murray.

features

I expected to be in private practice my whole career. When this position came up, it seemed like a very challenging option (and how

challenging it has been!).

Reflections on the pros and cons of working as in-house counsel

Insight from “In-House”

AUGUST 2013 / BARTALK 15

Recently, there have been a number of high profile animal cruelty cases before the courts and the media that

have garnered a great deal of pub-lic attention. Cases that involve cruelty to animals, especially when that abuse is intentionally inflicted on companion animals, often re-ceive a disproportionate amount of media attention and, more recent-ly, have resulted in public petitions and social media campaigns calling for “justice,” increased sentences and changed laws. Is the pub-lic outcry justified, and if so, are people asking for the right things?

One recent example is the case of Brian Whitlock, who received 60 days in jail, a lifetime ban on owning animals and three-year probation after beating his dog Captain with a baseball bat and leaving him barely alive in a gar-bage bin. He was convicted under the Criminal Code and faced up to five years in jail. The evidence presented to the court was that Mr. Whitlock was suffering from a serious mental illness at the time. The judge took this into consideration in the jail term he imposed. At the sentencing hear-ing, the judge noted that court-rooms are often empty in cases of crimes against people, and yet the courtroom in the case of Cap-tain was filled to capacity. He ac-knowledged the tens of thousands of signatures obtained in petitions

calling for “justice for Captain” and strongly criticized the com-ments made by people on social media sites calling for physical harm to Mr. Whitlock. These comments raise the question as to whether this type of public atten-tion is doing more harm than good for animal cruelty cases before the courts? One thing that is clear is that members of the public focusing energy on signing petitions in an attempt to influ-ence judges need to be aware that our legal system is based upon judicial independence and that sentencing is a complex exercise based on precedents, fact, and law rather than public opinion.

That being said, there does ap-pear to be a legitimate question around convictions and con-sistency in animal cruelty cases. For example, Jordan Lucas was re-cently convicted of animal cruelty

after he filmed himself torturing five cats over a two-month period. Again, the maximum sentence was five years in jail, yet he received only a seven-month jail term and a two-year ban on owning animals. While there are aggravating and mitigating factors in every case, the horrific animal suffering and delib-erate violence that was intention-ally inflicted on these animals and the relatively light sentence in this case begs the question: does the an-swer to addressing animal cruelty lie with changing laws and increas-ing penalties, or maybe the law is

not the problem?In the past dec-

ade, there have been significant changes to provincial ani-mal cruelty legisla-tion and some less significant changes to federal legislation. While there is room for improvement, we have reached a point

where the laws and penalties are reasonably strong on paper. The problem is that there are inad-equate resources being given for enforcement and the intent of the legislation is not consistently be-ing reflected in charge approval or sentencing. In order to prevent animal cruelty in the future and to deter violence against animals, the pendulum needs to swing from an emphasis on changing laws and penalties to enforcing the laws that are in place, educating the legal community about animal cruelty law and getting consistent and substantial sentences for this type of crime.

MARCIE MORIARTY

Marcie Moriarty, B.Sc, LL.B., Chief Prevention and Enforcement Officer, BC SPCA. spca.bc.ca

Crime and Punishment in Animal Cruelty Cases

In the past decade, there have been

significant changes to provincial animal cruelty legislation

and some less significant changes

to federal legislation.

Is the public barking up the wrong tree?

16 BARTALK / AUGUST 2013

I am proud to work for West Coast Environmental Law (West Coast), one of Canada’s oldest and most versatile en-vironmental law organizations.

In this role, I get to press the prov-ince for stronger water laws, help parents concerned about pesticides sprayed on their kids’ playground, and work collaboratively with pro-fessionals concerned about climate change (among many other things). West Coast has a unique approach of using the law to press for en-vironmental change and to give a voice to the public on these issues.

But I always remember that many effective public interest lawyers do not work at organizations like mine, but are in private practice.

Students often ask me whether they should go to law school to help protect the environment. The more astute of them recognize that there are more law students who want to work in public interest environmental law than there are positions in organizations like West Coast. Many of them, on graduat-ing, struggle with that reality.

But many lawyers reject that di-chotomy – that you can only do public interest work at a non-prof-it public interest organization and otherwise not at all.

It’s been more than 25 years since Professor John Bonine of the University of Oregon coined the phrase “private public interest environmental law.”1 The phrase refers to lawyers who build, or

find, a private practice that will allow them to spend a significant amount of their time advancing the public interest.

There is obviously a spectrum here. Many lawyers can and do take one or two public interest clients on a pro bono or par-tially pro bono basis.

At the other end of that spectrum are lawyers who priori-tize taking clients that share their values, even if that means a lower economic return. By working to keep their costs down, and sup-plementing their public interest work with more lucrative files, they are able to build ongoing relationships with environmental and community groups. I followed this route myself when I finished law school, before securing a pos-ition at West Coast.

In B.C., lawyers seeking to work on environmental files – no matter where they fall on that spectrum – may benefit from the Environ-mental Dispute Resolution Fund (EDRF). Funded by the Law Foun-dation of B.C., but administered by West Coast, the EDRF gives grants to communities, groups and indi-viduals facing environmental prob-lems who are in need of legal help. These grants help recipients cover the disbursements of pro bono lawyers or hire lawyers at a “par-tially pro bono rate” (of $80/hr).

The range of cases funded are var-ied and hugely interesting. For an idea of some of our most success-ful cases during the more than two decades that the fund has been around, check out our 20th anni-versary report – On the Ground. Feel free to refer unfunded public interest clients to the EDRF, or to contact us about receiving refer-rals (my email is agage@wcel.org).

West Coast also supports law-yers through CPD webinars aimed at training public interest environ-mental lawyers.

Each lawyer interested in pro-tecting B.C.’s natural environment and its communities needs to decide what type of practice they want to build. It is possible to build a public interest practice from within the private Bar.

Lawyers do not need to measure suc-cess purely in busi-

ness terms – although keeping the doors open and the lights on is obviously critical. Lawyers across B.C. have so much opportunity to give back to the community, and many of them succeed in doing so.

ANDREW GAGE

West Coast Environmental Law Saving the world through law

Andrew Gage, Lawyer at West Coast Environmental Law. Follow West Coast Environmental Law on Twitter @WCELaw or Facebook at face-book.com/wcelaw.

1 J. Bonine. The New Private Public Inter-est Bar. 1 JELL xi (1986), available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1033001. See also J. Bonine. Private Public Interest Environ-mental Law: History, Hard Work, and Hope. 26 Pace Environmental LR 465 (2009), available online at law.umich.edu/careers/practicearea/Docu-ments/Bonine_article.pdf.

feature

AUGUST 2013 / BARTALK 17

Vancouver’s Down-town Commun-ity Court (DCC) is shining a light on its problems and is fa-

cing the solution in a unique and collaborative way.

Vancouver’s Downtown East-side has long been known as a troubled neighborhood, profiled in the media with endless stories of drugs, mental illness, home-lessness and crime. Less known, however, are the groundbreak-ing efforts that the DCC has been undertaking toward change, by engaging everyone involved in the system at the beginning of the process. The DCC, and its goals of reducing harm caused to the com-munity from unlawful acts, and creating a safer and more liveable downtown community, is the only court of its kind in Canada.

Since 2008, the DCC has been working as a neighbourhood-fo-cused problem-solving court em-phasising restorative justice and community integration. Instead of treating each individual as an iso-lated person, everyone at the court is treated as a unique member of the community, and his/her of-fending behaviour is treated on a sensitive case-by-case manner.

Among the unique features the DCC uses to assess and handle of-fending behaviours is the collabora-tive approach of the DCC’s multi-disciplinary team. All accused indi-viduals must admit guilt, otherwise,

they are referred to the Provincial Court next door for a trial. When they arrive at the door, DCC has an initial process called “triage” in-volving a Vancouver Coastal Health nurse, a forensic liaison nurse, an employment and assistance work-er, a probation officer and a police officer. In assessing the case the triage team pays spe-cial attention to the individual’s health and social circumstances which might have led to the offence. Once the triage is complete, and after consultation with Crown Counsel and defence counsel, individuals can either be referred to the Case Management Team, Mental Health Program, Chronic Offender Pro-gram, Vancouver Aboriginal Trans-formative Justice Services Society, or to outside options (such as drug treatment court and the Burnaby Centre for Mental Health and Ad-dictions). Only if those options fail does the individual appears before one of the four judges where the disposition can be a conditional sentence, probation, or alternative measures based on specific needs, including restitution, letters of apol-ogy, community service work or participation in a DCC Program.

In short, the goals of applying a sensitive, continuous and collabor-ative approach are not only to ad-dress the consequences of offending

behaviours but also to tackle the underlying causes that led to crim-inal behaviours in the first place.

Another unique feature of the DCC is the physical and social en-vironment of the court. The bench is lowered and judges encourage people to approach the bench, re-view the sentence with them for a clear understanding and then sign off on the document, all within the same day as the hearing. The courtroom is noisier and busier than traditional courts, largely be-cause of the high volume of cases combined with the collaborative

and community-cen-tred approaches.

A preliminary evalu-ation report on the DCC’s results sug-gested that the court’s impact requires longer timelines for measure-ment. With goals of continuously reducing harm caused to the community from un-

lawful acts, creating a safer and more liveable community in down-town Vancouver, including using the larger community as part of the solution, the DCC is continuously searching for innovative ideas for public service by offenders that would compensate the commun-ity and enhance the integration of services to meet offender needs. Ideas from, and partnerships with, the legal community and the com-munity at large are not only wel-come but also very much needed. Engagement strategies will ensure that communities and the govern-ment continue to work together so the DCC serves as a model for other Canadian communities.

CARMELLE DIELEMAN

Carmelle Dieleman is articling with Henderson Law Group.

Downtown Community CourtCanada’s Top Model?

guest

18 BARTALK / AUGUST 2013

news&events

On June 6, 2013, 1100 judges, lawyers and justice system stake-holders celebrated the illustrious career of British Columbia’s Chief Justice Lance Finch at his Retirement Dinner at the Westin Bayshore Hotel in Vancouver.

The Retirement Dinner fea-tured speakers such as Supreme

Court of Canada Chief Justice Beverley McLachlin, PC, retired Supreme Court of Canada Justice Frank Iacobucci, CC, and in-coming British Columbia Chief Justice Robert Bauman.

Proceeds of the dinner assisted in establishing a scholarship fund at the UBC Faculty of Law.

NEWS

Hundreds of The Honourable Lance Finch’s Colleagues Gathered to Celebrate His Illustrious Career

With the release in June of The Future of Legal Services in Can-ada: Trends and Issues, the CBA moved into the consultation stage of its Legal Futures Initia-tive, launched in August 2012.

In this phase, the CBA is reaching out to legal industry stakeholders – legal and non-legal professionals, as well as clients and academics – for their input about what the profession must do in order to position itself for relevance into the next decade and beyond.

Visit cbafutures.org to have your say, or join the con-versation on Twitter at #cbafutures.

CBA NATIONAL NEWS

Join the Conversation with Futures

Back row, standing (L-R): Marvin Storrow, QC, The Honourable Lance Finch, Judy Finch, The Right Honourable Madam Chief Justice Beverley McLachlin, PC, The Honourable Chief Justice Robert J. Bauman. Front row, sitting (L-R): Colette Stor-row, The Honourable Frank Iacobucci, CC, The Honourable Judith Guichon, Nancy Iacobucci, Sue Bauman.

Catch up with another edition of the CBA’s learned journal, frequently cited at the Supreme Court of Canada. Free to CBA members, Vol. 91, No. 1 of The Canadian Bar

Review is now online and features new articles on legal ethics versus political practices, the rise of self-representation in family courts, assessing tort damages in the conflict of laws and so much more.

\ Access it online now at: cba.org/CBR

CBA NATIONAL NEWS

New Volume of The Canadian Bar Review Now Online

CBABC is once again recruiting for lawyers young (and not) to join an exceptional roster of colleagues to lead new law students, as well as women and aboriginal lawyers through the maze of legal life. Give the gift of your experience and sign up to be a part of one of these re-warding programs. Volunteers are needed now for the student mentorship programs this fall at UBC, UVic and TRU. Plus, check out other opportunities with the CBABC Women Lawyers Forum and the CBABC Aborig-inal Lawyers Forum. Interested? \ Sign up today at

cbabc.org/mentorship

CBABC MENTORSHIP PROGRAM

Calling All Lawyers – Volunteer to Be a Mentor

AUGUST 2013 / BARTALK 19

This year’s CBA Legal Conference (CLC) is taking place this year from August 18 to 20 in neighbouring Saskatoon. With very little time left to registration, the CLC holds so much for CBA members in British Columbia!

Learn with more than 35 CPD-eligible sessions to choose from, connect and share with your colleagues at targeted networking events and experience the only national gathering of Canada’s legal community. Taking place in your own backyard this year, you can’t miss:�� The Big Shift, as keynote speakers Darrell Bricker and John Ibbitson will discuss

the shift of power taking place within Canada. Their book The Big Shift, The Seismic Change in Canadian Politics, Business, and Culture and What It Means for Our Future argues that the business elites in Montreal, Toronto, and Ottawa are losing power and steam to the Western centres – even if they’ve yet to realize it.�� Be sure to take advantage of the available CLC travel discounts.�� Consider Day Passes, which are available to CBA members who can’t join us for the entire three days of action-packed programming. Be a part of the must-attend event for Canadian legal professionals. To learn more and to register

visit cba.org/clc, or follow the CLC on Twitter to get the latest program updates (#CLC2013).

CBA NATIONAL NEWS

Learn, Connect & Experience the CLC – in Your Own Backyard!

CBA NATIONAL NEWS

Supreme Court Ruling Brings Clarity in Conflicts Rules

On July 5, the Supreme Court of Canada brought clarity to the practical application of the con-flicts rule with the release of the McKercher decision.

This clarification substan-tially reduces concern that clients would be needlessly deprived of their choice of lawyer, said Mal-colm Mercer, pro bono counsel for the CBA, which had inter-vened on the issue of the scope of the duty to avoid conflicts of interest.

McKercher LLP was acting for the representative plaintiff in a class action lawsuit against CN Railway, for whom the firm was acting on other matters. CN argued that McKercher owed a “duty of loyalty” and applied to disqualify McKercher from act-ing on the class action suit. The CBA argued that this duty does

not categorically prohibit acting directly adverse to the immediate legal interests of a current client.

The top court has limited the scope of the bright-line rule by making it clear that it only applies where “the immediate interests of clients are directly ad-verse in the matters on which the lawyer is acting.” The rule does not apply where it is “unreason-able for a client to expect that its law firm will not act against it in unrelated matters.”

In order to make that deter-mination, courts are directed to consider the relationship between the law firm and client, terms of the retainer and the types of mat-ters involved – all factors that the CBA said should be considered, Mercer said.

The court concluded that law-yers should only be disqualified

to avoid the risk of improper use of confidential information, to avoid the risk of impaired rep-resentation and/or to maintain the repute of the administration of justice.

“This means that clients should not have their lawyers disquali-fied without good reason, which has been the essential position of the CBA,” Mercer added.

“We’re pleased that the court has brought to the profession and the public the clarity that CBA has been urging.”

\ Read CBA’s factum: cba.org/CBA/groups/PDF/ Factum_of_the_Canadian_ Bar_Association_Intervener.pdf

\ Link to CBA’s video: player.vimeo.com/video/ 58099764

20 BARTALK / AUGUST 2013

news&events

CLEBC’S 14TH ANNUAL ADMINISTRATIVE LAW CONFERENCE Administrative law continues to evolve – and it is difficult to stay on top of the changes. If your practice includes any administrative law, you’ll want to attend this essential annual conference on October 28, 2013.

Find out about the latest court decisions, legislative updates, and current trends. Hear from a

distinguished faculty of judges, academics, and leading

lawyers who will arm you with the most up-to-date information, along with practice tips, strat-egies, and advice that will enable you to practice effectively.

Along with the usual updates, this year’s conference features The Honourable Mr. Justice Marshall Rothstein as the lunchtime speak-er. Frank Falzon, QC and Angus Gunn, QC are the course chairs.

BRITISH COLUMBIA ADMINISTRATIVE LAW PRACTICE MANUAL The British Columbia Administra-tive Law Practice Manual provides a framework for lawyers who practice before and represent ad-ministrative law decision-makers

in British Columbia. The manual covers both federal and provincial decision-makers and proceed-ings in both federal and British Columbia superior courts. You will find practical advice on how to conduct yourself at all levels of representation, the roles of vari-ous parties, how to avoid common pitfalls, practice tips on effective advocacy and drafting, and deal-ing with unrepresented parties.

For more information, contact CLEBC customer service at 604-893-2121 or visit CLEBC’s website at cle.bc.ca.

NEWS

CLEBC Update

View from the North FROM NORTHEASTERN BRITISH COLUMBIA TO YOU

The winter has come and gone from the north. At the end of the seemingly endless winter, the snow hung on, tenaciously covering the rich, fertile dirt underneath until finally, it shrank into nothingness and the ground was bare. The trees were still without leaves and without the snow at their feet, they took on a bleak and gray and dirty look. This season between winter and spring was short, a week or

perhaps ten days in length during which time the mud ruled. Suddenly however, the green burst forth and the ground and trees took on a whole new look and spring was in the air.

Snowmobiles were replaced by quads and dirt bikes racing along sides of the Alaska Highway, excited to be let out for a few months of warm weather. The ice covering the lakes was just as suddenly gone and the boats began to roam the surface. Campers, motorhomes (motor-houses as some here call them) and fifth-wheel trailers began to populate the local highways and form a never-ending stream along the Alaska Highway. Motorcycles, big powered trikes, bicycles, convertible cars and scooters appeared out of nowhere and are suddenly ubiquitous. The days last into the night hours as sometimes do the bonfires and the strumming strummers of summer.

The local Bar, in Fort St. John, have what they call “Bar bars” at their homes, inviting counsel and spouses, staff, sheriffs and sometimes judges of both levels of trial courts for an evening of eating and enjoying each other’s company and live music gladly produced by those frustrated musicians who are forced into the practice of law to put food on their tables. Summer here in the north is a time of respite and while the business of law grinds on during the day, the participants seem more tolerant and relaxed.

My View from the North

— Clint Sadlemyer, QC

AUGUST 2013 / BARTALK 21

AUGUST 8 CBABC PD Webinar | It’s a New Dawn, It’s a New Day Webinar Module I: WESA & New Probate Rules

15 VBA & CBABC 17th Annual Golf Tournament

27 CBABC PD Webinar | It’s a New Dawn, It’s a New Day Webinar Module II: WESA & Will Drafting

29 CBABC PD Webinar | It’s a New Dawn, It’s a New Day Webinar Module III: WESA & Litigation

SEPTEMBER 12 CBABC PD Webinar | Following Daniels V. Canada: What’s Next in Aboriginal Law?

17 CBABC PD Webinar | Tax Exemptions for First Nations: What’s New with Section 87 of the Indian Act and Beyond

18 CBABC PD Webinar | New Developments in Cross-Border Tax: Investing in US Vacation Property

24 CBABC PD Webinar | From Soup to Nuts: Hands-On Analysis of a Commercial Transaction

BRANCH & BAR

Calendar

Nominations are currently being accepted for the 2013 Georges A. Goyer, QC Memorial Award for Distinguished Service. Deadline is Friday, September 27, 2013.

\ For details visit cbabc.org

Contact the Editor of BarTalk if you would like to:

�� suggest a colleague who should be featured in BarTalk; �� suggest a specific theme or topic you would like featured in BarTalk;�� write an article for BarTalk;�� send a “Letter to the Editor” commenting on anything you have read in BarTalk.

AWARD NOMINATIONS

Georges A. Goyer, QC Memorial Award for Distinguished Service

CONTACT bartalk@bccba.org

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new Directory

2014 DIRECTORY

Check out CBABC member Michael P. Doherty’s play at the Vancouver Fringe Festival from September 7-15, 2013.

\ For details visit facebook.com/Athenas SelfDefence

UPCOMING EVENT

Athena’s Self-Defence for Girls-To-Be

22 BARTALK / AUGUST 2013

news&events

The theme of this year’s CBABC WLF’s Education Day, held on May 17 at the Four Seasons Hotel, was “Practice Habits of Highly Successful Lawyers: Inspire, Elevate and Advance Your Career!” Participants were provided with personal insight into the practice habits and career paths of eight inspiring women at different stages of their careers and lives. The day began with a “best tips” session followed by speed mentoring where panelists were available to answer questions and provide an in-depth look at how they got to where they are today. Olympic rower and silver medalist, Tricia Smith, then shared her thoughts and stories on good habits that drive success. Finally, participants engaged in a coaching workshop to identify and commit to positive habits designed to each participant’s personal career goals.

The CBABC WLF held its AGM on June 18, 2013 at the Law Courts Inn. The AGM portion of the evening was preceded by a networking reception, and was followed by a speakers’ panel event featuring a discussion of the objectives and progress of the Justicia Project in British Columbia. The panelists included Co-Chair of the Justicia Committee, Bill Maclagan and Justicia Committee members Maria Morellato, QC and Andrea Hilland. The Justicia Project is an initiative of the Law Society of British Columbia and continues to be of interest to members of the CBABC WLF. It was established with the strategic goal of supporting the retention and advancement of women lawyers and through this initiative, participating law firms will come together to share strategies and best practices. The conversation also included updates regarding the national Law Firm Diversity and Inclusion Network as well as the Aboriginal Lawyers Mentorship Program.

CBABC WLF NEWS

CBABC Women Lawyers Forum Education Day

CBABC Women Lawyers Forum Annual General Meeting

Mark your calendars for the 6th annual Nanaimo Battle of the Lawyers’ Bar Bands, which will be held on November 2, 2013 at the Nanaimo Yacht Club.

For more information, contact Nancy Merrill at merilong@telus.net or 250-754-4441.

UPCOMING EVENT

Nanaimo Battle of the Lawyers’ Bar Bands

EVENT RECAP

The CBABC 12th Annual Battle of the Bar Bands rocked an enthusiastic and sold out crowd at the Commodore Ballroom on June 7, 2013. The winner of the coveted “ZSA Cup” for best band was Howard Mickelson’s “Still Living At Home” (pictured above). A dynasty is in the making as “Still Living At Home” won in 2002, 2003, 2004, 2006, and now 2013! All proceeds from the event ($145,000) support the CBA (BC) Benevolent Society.

Lloyd Duhaime, of Duhaime Law in Victoria, has been appointed to the Federal Courts Rules Committee for a three-year term.

NEWS

P L A I N L A N G U A G E A D V A N C E S

Gain new skills Enhance your knowledge Discover new research Develop best practicesNetwork and share

Celebrate International Plain Language Day

IT’S CLEAR! The advantage is being there!

PLAIN 2013CONFERENCE

PLAIN’s 20th Anniversary CONFERENCE

Vancouver, BC Canada

OCTOBER 10-13, 2013

Early registration deadline APRIL 15

SEE YOU THERE!

2013

www.P L A I N 2 013 . o r g

PLAIN 2013 CONFERENCEin Vancouver, B.C.

OCTOBER 10-13, 2013PLAIN2013 promises to live up to its theme –

Plain Language Advances: new skills, knowledge, research and best practices.

AUGUST 2013 / BARTALK 23

LAW FOUNDATION OF BRITISH COLUMBIALAW FOUNDATION OF BRITISH COLUMBIA

grantsapproved

Funding for Public Legal Education and Information

The Law Foundation has established a budget of up to $750,000 for a public legal education and information (PLEI) and distribution program that will take place in 2014 and focus on providing civil law public legal education and informa-tion resources in British Columbia. Any non-profit organization in British Colum-bia with demonstrated knowledge, skill, experience, and a vision for the delivery of PLEI is eligible to apply for this funding.

This budget has been established by the Law Foundation in recognition that there is an increased need for PLEI as the justice system requires more self-help/self-reli-ance from British Columbians. It also rec-ognizes that the need for PLEI in all areas of law, including family, is substantial.

Materials developed with this funding should be available in a range of formats appropriate to the audience and should include guided self-help (e.g. help lines, email requests) where possible. Distribu-tion is another important element of any PLEI development. Workshops should be available across the province. Co-ordination with existing resources and appropriate collaboration is essential to any application.

The deadline for any application is August 15, 2013 at 12:00 p.m.

For more information, consult the Law Foundation website at lawfoundationbc.org and contact karima budhwani at 604-688-2337.

Law Foundation Legal Research Fund

The Law Foundation seeks Letters of Intent for proposals of up to $20,000 for one-time projects. Deadline for applica-tions is September 20, 2013. For full de-tails, consult the Law Foundation website at lawfoundationbc.org and contact Mike Seaborn at 604-688-2337.

Grants approved at the June 22, 2013 Board of Governors’ meeting.

Funding of $1,416,230 for 13 continuing programs: $306,920GREATER VANCOUVER LAW STUDENTS’ LEGAL ADVICE SOCIETYLaw Students’ Legal Advice Program

$279,310B.C. BRANCH OF THE CANADIAN BAR ASSOCIATION Dial-A-Law, Lawyer Referral Service & Law Week

$168,000TOGETHER AGAINST POVERTY SOCIETYLegal Advocacy Program

$75,000ACTIVE SUPPORT AGAINST POVERTYLegal Advocacy Program

$75,000CHIMO CRISIS SERVICES SOCIETYOutreach and Advocacy Program

$75,000CONTACT WOMEN’S GROUP SOCIETYLegal Advocacy Program

$75,000FORT ST. JOHN WOMEN’S RESOURCE SOCIETYPoverty Law Advocacy Program

$75,000KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETYPoverty Law Advocacy Program

$75,000NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETYLegal Advocacy Program

$75,000PENTICTON AND AREA WOMEN’S CENTREPoverty Law Advocacy Program

$75,000PORT ALBERNI FRIENDSHIP CENTEROutreach Legal Advocacy Program$42,000SOCIAL HEALTH & ECONOMIC DEVELOPMENT SOCIETY OF BELLA COOLABella Coola Legal Advocacy Program

$20,000PROVINCIAL COURT OF BRITISH COLUMBIAJudicial Interns Circuit Court Program

Funding of $436,120 for 10 large projects: $75,000SOURCES COMMUNITY RESOURCES SOCIETYModified Legal Representation Project$65,000LEGAL SERVICES SOCIETYImproving Access to the Family Law in B.C. Website$60,000THOMPSON RIVERS UNIVERSITYClinical Legal Education for TRU Faculty of Law$60,000WEST COAST LEAF ASSOCIATIONLegal Responses to Cyber Misogyny$50,000B.C. BRANCH OF THE CANADIAN BAR ASSOCIATIONRural Education and Access to Lawyers Initiative (REAL) Phase 3$40,000FRASER THOMPSON INDIAN SERVICES SOCIETYGuide and Workshops – Aboriginal Communities and the CFCSA$35,000B.C. CENTRE FOR ELDER ADVOCACY AND SUPPORTResidential Care in B.C.: Legal Issues$21,120B.C. HUMAN RIGHTS COALITIONHuman Rights Toolkits for Advocates, Employers, Respondents and Others$20,000TIDES CANADA INITIATIVEGreen Legacies 2.0 Guide - Enhan-cing Diversity for a Green & Healthy Future for all British Columbians$10,000PENTICTON AND AREA WOMEN’S CENTREAboriginal Law Conference 2013

Funding of $250,000 for two grants: $200,000ECOJUSTICE CANADA SOCIETYB.C. Litigation Program$50,000ENVIRONMENTAL LAW CENTRE SOCIETY, UNIVERSITY OF VICTORIA ELC Associates Program

\ For full details of the programs and projects that received funding, please visit lawfoundationbc.org.

24 BARTALK / AUGUST 2013

\ WEBSITE: CBAPD.ORG EMAIL: PD@BCCBA.ORG

professionaldevelopmentCBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network and advance one’s career, practice and business. We pride ourselves in bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management component for 2013 Law Society of British Columbia reporting.

Upcoming In-person Seminars IN PARTNERSHIP WITH THE ABBOTSFORD/CHILLIWACK/FRA-SER VALLEY BAR ASSOCIATIONSCBABC Full Day Professional Development in Abbotsford Get 6 CPD hours at one event! Date: October 8, 2013 Speakers: John-Paul Boyd, Aaron Gordon Daykin Nordlinger, Kim A. Karras, Brawn Karras & Sanderson, Meghan Maddigan, Courthouse Libraries BC, Rose Shawlee, Richards Buell Sutton LLP, and H. William Veenstra, Jenkins Marzban Logan LLP Location: BEST WESTERN PLUS Regency Inn & Conference Centre, 32110 Marshall Road, Abbotsford

SAVE THE DATE IN PARTNERSHIP WITH THE VICTORIA BAR ASSOCIATION Date: September 24, 2013 Location: Victoria Marriott Inner Har-bour, 728 Humboldt Street, Victoria

IN PARTNERSHIP WITH THE NORTH SHORE BAR ASSOCIATIONDate: October 15, 2013 Location: John Braithwaite Community Centre, 145 W. 1st St., North Vancouver

Upcoming WebinarsAll webinars are moderated by Stuart Rennie, Legislation and Law Reform Officer, CBABC

“It’s a New Dawn, It’s a New Day” WESA Webinars Our experienced and expert pre-senters will give you the practical need-to-know about WESA so you are prepared and are able to advise your clients.

Module II: WESA & Will Drafting Date: August 27, 2013 Speaker: Gary J. Wilson, Borden Ladner Gervais LLP

Module III: WESA & Litigation Date: August 29, 2013 Speaker: Deidre J. Herbert, McLellan Herbert and Hugh S. McLellan, McLellan Herbert

“New Developments in Cross-Border Tax” Webinars Canada-United States (US) cross-border tax matters are increasing in volume and complexity and clients want answers from their lawyers. These two courses will provide timely and practical infor-mation on two hot button issues.

Investing in US Vacation Property Date: September 18, 2013

US Citizens Resident in Canada Date: October 16, 2013 Speakers: Warren Dueck, FCA, CPA, Partner, W. L. Dueck & Co. LLP and Sidhartha Rao, JD, LLM, Senior Manager, W. L. Dueck & Co. LLP Following Daniels V. Canada: What’s Next in Aboriginal Law? Date: September 12, 2013 Speakers: Geoff Plant, QC, Heenan Blaikie LLP and Beverley-Jean M. Teillet, I.P.C., Pape Salter Teillet LLP Tax Exemptions for First Nations: What’s New with Section 87 of the Indian Act and Beyond Date: September 17, 2013 Speakers: Jeffrey S. Glasner, Boughton Law Corporation and Bill S. Maclagan, Blake, Cassels & Graydon LLP

From Soup to Nuts: Hands-On An-alysis of a Commercial Transaction Date: September 24, 2013 Speakers: Kimberly Burns, Goodmans, Maria Davidson, Goodmans and Ted Sutcliffe, Thorsteinssons LLP

The Extradition Act (Canada) and your Client: Letting Bygones Be “Be-Gones”? Date: October 9, 2013 Speakers: Gregory P. DelBigio, QC, Barrister and Eric V. Gottardi, Peck and Company, Barristers

Conference

CBABC Eighth Annual Branch Conference Keep the sun shining until November! Date: November 15-17, 2013 Location: San Diego, California

Register early to avoid disappointment!

Visit cbabc-conference.org for more details.

\ For a complete list of registration details and requirements, please contact the Professional Development Department 604-646-7866 or 1-888-687-3404 ext. 329 or email pd@bccba.org.

2013SAN DIEGO

AUGUST 2013 / BARTALK 25

EMAIL: ADS@BCCBA.ORG

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barmovesSPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME

FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND PHOTO TO CBA@BCCBA.ORG NOW.

Farzad Forooghian has joined McCullough O’Connor Irwin LLP as associate counsel and will be practising corporate and securities law.

Amy Lowehas joined Synergy Business Lawyers as a business and real estate solicitor.

Marian Foucaulthas joined Devlin Gailus as an articled student practising Aboriginal law with a focus on litigation, negotiation and business law.

Stephanie Albiston joins the Vancouver office of Lindsay Kenney LLP. Stephanie’s practice includes real estate, estate planning, estate administration and corporate commercial law.

Andrea Ritchiehas been called to the British Columbia Bar and commences her practice in general litigation with Lindsay Kenney LLP in Vancouver.

Kimberley Fenwickhas joined Harper Grey LLP as an associate with the Commercial Litiga-tion, Environmental Law and Health Law groups. Kimberley articled with Harper Grey and was called to the B.C. Bar on December 27, 2012.

Jennifer Kwokhas joined Overholt Law as an as-sociate lawyer after 6½ years as a constable with the Vancouver Police. Jennifer practises labour, employment, human rights law and related areas.

Preston Parsonshas joined Overholt Law as an associate lawyer practising labour, employment, and human rights law and related areas. Preston previously practised class action litigation at CFM Lawyers.

Brad Smith former senior federal prosecutor, has joined Affleck Hira Burgoyne LLP as associate counsel. His practice focuses on criminal, regulatory and civil litigation.

Stephanie Melnychukhas joined Oyen Wiggs Green & Mutala LLP as an associate of the firm. Her practice will focus on all aspects of intellectual property law, with emphasis on chemical and biochemical patents.

Who’s Moving Where and When

newmembers

Associate Member

Shawn LewisVancouver

Regular Member

Veen AldoskyMitch Foster Law Corp Vancouver

M. Eliza Bates-SmithMarshall Allen & Massey Victoria

Brenda A. Belak West Coast Environmental Law Vancouver

Scott Boucher Bull, Housser & Tupper LLP VancouverJonathan A.F. BunyanDoak Shirreff LLP Kelowna

Jenna F. GrahamPearlman Lindholm Victoria

Nadia N.H. KimBlake, Cassels & Graydon LLP Vancouver

Lisa M. LowSwift Datoo Law Corporation Courtenay

Krish MaharajVancouver

Rianna K. RitchieBlake, Cassels & Graydon LLP Vancouver

Shirley B. ShankarSouth Coast British Columbia Trans-portation Authority (Translink) New Westminster

Maxine VinceletteHeenan Blaikie LLP Vancouver

Scholar

Alexandra FlynnToronto

Articling StudentsShahriza Ali VancouverWilliam T. Cromb VancouverWilliam GreenVancouverLisa I. HackVancouverMahan MafiVancouverMike MurphyVancouverSandy SihotaRichmond

Law Students

Andres D. AbogadoVancouverMahta AzarakhshNorth VancouverAngela BarretoKamloopsSara BrandonVancouverDaniel N. CherniakVancouverNeil Foran VancouverSotonye D. Godwin-A Hart VancouverJane M. HendersonVictoriaSameer KambojBurnabyDuncan KennedyVancouverJennifer LangwithVictoria

John J. LeeCranbrook

Susan I. MacKenzieVancouver

Jenny Mehat-GillSurrey

May & June 2013

SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30

WORDS) AND PHOTO TO CBA@BCCBA.ORG NOW.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1308

Robin Bennett has joined Harper Grey LLP as an associate with the Commercial Litiga-tion, Construction Law and Employ-ment Law groups. Robin articled with Harper Grey and was called to the B.C. Bar on February 13, 2013.

Vincent Yip has joined Oyen Wiggs Green & Mutala LLP as an associate, practising in all areas of intellectual property law, with emphasis on patent prosecution and intellectual property commercialization.

Michael Hancock will be returning to Harris this summer, to work primarily in the Education Law practice group.

Kara Hill has joined Harper Grey LLP as an as-sociate with the Insurance and Profes-sional Regulation law groups. Kara articled with Harper Grey and was called to the B.C. Bar on May 22, 2013.

Wendy Harris, QC has been appointed a Judge of the Supreme Court of British Columbia. Wendy will bring more than 30 years of legal experience to her role as a Supreme Court Judge.

\ To view all new members, including Law Students, please visit cbabc.org/bt/nm_1308

AUGUST 2013 / BARTALK 27

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