NEWSLETIER OF THE CANADIAN BAR ASSOCIATION, B.C. BRANCH

FEB/MARCH 1994

VOLUME&

NUMBER2

National CBA Gender Equality study moves into phase two

The National Canadian Bar As­sociation is moving ahead to implement its gender equality action plan. The blue print for action in the months ahead in­cludes drafting the terms of ref­erence for a study on racism, producing educational materi­als on model policies to assist lawyers in the workplace, and improving the representation of women and minority groups within the Association.

The National CBA will also de­velop a comprehensive strategy for lobbying to ensure that oth­er organizations are involved in the process. In particular, the National Association will press governments to take steps re­quired to eradicate gender bias

Client relations tip .............. 2

President's Message .......... 3

UBC Conference ................. 4

Legislative Update .............. 5

Section Talk ......................... 7

Registry Q&A .................... 10

TQM for skeptics .............. 11

New West Bar 100th ......... 11

Vacation specials! ............ 12

Risky Business ................. 12

in the substantive law and the administration of justice.

The report, Touchstones for Change: Equality, Diversity and Accountability, chaired by former Supreme Court Justice Bertha Wilson. was presented to CBA Council members at its Annual Meeting in Quebec in 1993. The report examines gen­der bias in all areas and levels of the legal profession.

At the Association's three-day Jasper Mid-Winter Meeting in late February, close to half of the 235 resolutions arising from the Wilson report were passed. Due to time constraints, the re­maining 135 resolutions will be debated at the CBA's upcoming Annual Meeting in Toronto this August. These resolutions re-

late to corporate counsel, gov­ernment legal departments, and private practice.

Council debate at Jasper fo­cused on five chapters of the Report dealing with: substan­tive law and procedure, the Ca­nadian Bar Association; law so­cieties; family law practice; and the judiciary. These final chap­ters of the Wilson Report were debated first as Council consid­ered it appropriate to "put its own house in order'' before proceeding to other aspects of the profession. Of the 101 reso­lutions considered at this meet­ing, 26 were passed on consent, 70 were adopted after debate or amendment, 4 were defeated and 1 was withdrawn.

(Please turn to page 2)

Law Day •94 Update

"'Family Violence: A Public or Private Matter?'" is the focus of a special forum hosted by CBC's Kevin Evans at the Vancouver Provincial Court Open House on Sunday, April 24.

Activities at the Open House be­gin at noon with 100 new Canadi­ans to be sworn in at a special Citizenship Court Ceremony. There will also be student mock trials, special video presentations, diSplays from justice-related or­ganizations and the finals of the provincial Barry Sullivan Law Cup Public Speaking Contest.

The "Dial-A-Lawyer'' program has gone provincial with lawyers in Vancouver, Victoria, Prince

George, and Campbell River pro­viding free legal information on the afternoons of April23 and 24.

The Student/ Lawyer Mentor pro­gram has matched up over 85 lawyers and students for a half or full-day session for students to find out "what a lawyer does in a typical day."

A wide-range of Law Day activi­ties are also planned in Richmond, Campbell River, Prince George, Nelson, Williams Lake, New Westminster, Maple Ridge, Fort St. John. Kamloops, Cranbrook. Kelowna, and Victoria. Plan to volunteer or attend these Law Day activities in your communi­ty.C

2

COMMUNICATIONS TIP

Telephone contact sets first impression

"One-two-three-four." Say it again. "One-two-three-four." When you have to say it again and again, it will become a mind-numbing activity. You won't think about what you are saying. The words will run to­gether. It will be an automatic mechanical meaningless proc­ess. What is the object? The object is to communicate to the listener, "one-two-three-four." What is the result? What is be­ing communicated is something like, "won-tooth-reefer."

What has prompted this admit­tedly not-too-monumental ob­servation? During the course of my workday, I am contacted frequently by lawyers wanting to discuss some problem or concern. Needless to say, I · spend a lot of my time on the phone and am obliged to return a lot of calls. Most lawyers "en­joy" the same experience.

I frequently find, in returning these calls, that the telephone­receptionist who answers re­cites the firm name in the me­chanical names-run-together manner that I describe above. HI happen to know the name of the firm, I may recognize it in the indistinct jumble of words I have just heard. HI don't know the name of the firm I am call­ing, I am no better off after hearing the name spoken. I still haven't the foggiest idea of what firm I have reached. Be­ing told that I have reached "Bird in a dirty garden" is not very helpful and is hardly posi­tive P.R. for the firm of uBur­ton, Doherty & Gordon." While this firm is fictional (I hope!), I am not exaggerating the kinds of sounds I frequently hear.

Very often the first contact that a firm has with "the outside world" is by telephone. Moreo­ver, many of the people with whom a law firm comes in con­tact (clients, potential clients,

other lawyers, etc.) deal only by telephone and know the firm only by name.

First impressions are not only important, they are critical. Call your own firm sometime and specifically listen to the re­ceptionist's greeting as though you were an apprehensive first time caller. H you experience something similar to what I de­scribe, a friendly reminder to the receptionist (with whom, in-

cidentally, I have considerable sympathy in this regard) will probably do the trick.

Slongfemow.

by Barry Vogel, Q.C.

This article, "From the Office of the Practice Advisor, " appeared in a re­cent issue of the Newsletter of the Law Society of Alberta and Canadi­an Bar Association (Alberta Branch) and is reprinted with permission of the author and publishers.

Gender Equality study (continued from page 1)

Highlights from the debate in­clude adoption of the following recommendations:

• that CBA develop a nation­al strategy to eliminate gender bias from the jus­tice system;

• that the CBA develop pro­grams and resources on equality issues;

• that law societies monitor access, entry and advance­ment of lawyers within the profession;

• that law societies enact rules against discrimina­tion;

• that steps be taken to im­prove the status of family law in schools and within the profession;

• that a reporting and disci­plinary system be devel­oped to deal with discrimi­nation by judges and against other judges or counsel.

A number of recommendations were adopted without debate including:

• urging law firms to review client promotion practices to ensure equal opportuni­ties for women; establish-

ing maternity and parental leave policies; and adopt­ing policies dealing with sexual harassment;

• urging law schools to use gender inclusive language and remove stereotypical examples in curriculum;

• urging law societies tore­move gender and race bias from course materials and including material on gen­der issues and discrimina­tion in Bar Admission pro­grams.

The B.C. Branch Gender Equali­ty Committee and elected Council members actively par­ticipated in the Jasper debates and brought forward comments and suggestions raised by members through the consulta­tive process the B.C. Branch ini­tiated prior to the Jasper meet-ing.

As well, the Committee mem­bers are reviewing the ap­proved Jasper resolutions and will recommend an implemen­tation and communication strat­egy for these resolutions both here in B.C. and on a national basis.

Copies of the approved Jasper resolutions are available on re­quest from the B.C. Branch of­fice (687-3404). C

Beyond the barriers Shaped by our geographical iso­lation from the rest of Canada and much of North America, British Columbia is.regarded by many as a state of mind and state of being as much as it is a political and geographical enti­ty.

Bounded by our formidable mountains and the Pacific Ocean and separated by interior geographical barriers, our phys­ical isolation provides some jus­tification for the perception that British Columbia looks inwards at all levels - community, pro­vinciaL national and interna­tional- without every really seeing "the bigger picture."

Ina ten week period from

and the Cowichan Valley.

These exchanges with lawyers from different towns, cities, provinces, states and countries have produced important infor­mation and a free flow of ideas. They have confirmed for me the importance of looking beyond our environment for new ideas and trends that will impact on our profession and the efficient administration of justice.

One significant observation for me was that despite our physi­cal separation, the problems of our profession and the issues faced by lawyers in our Koote­nays have a remarkable similar­ity to those faced by lawyers in

Kenora, Ontario and Kent late January

to late March of this year, my Branch presidential duties took me several hundred

"Self-lmpo•ed l•olstlon will deprive u• of· •lgnNICIInt op­portun/Ue• to teach and /esm from our colleague• acrou Canada"

Washing­ton. There are a mul­titude of common

miles on trains, buses, planes and cars to over a half dozen events with lawyers from a wide variety of backgrounds and locations.

I had the opportunity to meet, share with and learn from hun­dreds of lawyers from all prov­inces and territories of Canada, and many from outside of Can­ada, at the CBA Mid-Winter Meeting in Jasper. I had a simi­lar opportunity at an earlier meeting with the members of the Alberta Branch of the CBA at their Mid-Winter meeting in Calgary. Very recently, we ini­tiated a dialogue and exchange between our Provincial Branch and the Washington State Bar Association when I attended a meeting of their Board of Gov­ernors in Bellingham. My edu­cation was rounded out with visits to local and county bar meetings in Kelowna, the Kootenays, New Westminster

concerns and prob­lems being

faced by Bar associations and organizations across North America. Their members are asking these associations to handle and provide solutions for many similar matters. Our geographic isolation will not in­sulate us from these problems.

I have concluded that formal and regular contact is essential to exchange information and ideas between local and county bars and their respective Pro­vincial Branches or State Asso­ciations. This is particularly important in British Columbia, to compensate for the physical separation faced by a significant percentage of our Bar and caused by our geographical bar­riers. We presently attempt to foster this direct contact through our annual Local and County Bar President's meeting, County reports to Provincial Council, and Branch presiden­tial visits.

3

President's Message

]. Parker MacCarthy B.C. Branch President 93/94

Solutions developed in one part of our province can be success­fully applied to other regions.

Provincial Branches must meet with and learn from each other on a national level about issues, trends, approaches and solu­tions to problems facing our profession and affecting the ef­ficient administration of justice. We now accomplish this through our representatives on the National CBA Executive, strong representation at the Na­tional CBA meetings and by in­ter-Branch visits. These links are vital. Self-imposed isolation will deprive us of significant opportunities to teach and learn from our colleagues across Can­ada.

Increased formal and regular contact between legal practi­tioners in the U.S. and Canada, through their organized Bars, particularly at the national as well as the state and provincial levels, is not only desirable, but necessary. This contact will be prompted by the similarity of the issues which are presently or will shortly be faced by the legal profession in these differ­ent jurisdictions. It will also be prompted by the growth of fre­er trade at an international level and the possible emergence of sub-national economic trading

4

President's Message (continued from p1ge 3) Lang; Linda Leong; Sandra ) Lundell; Freddie Pletcher; Mur-

ray Tevlin and his Surf Ltrwyers blocks typified by the model for public legal educa- from Mars; Deborah Satanove; 11Cascadia" concept which in- tion in North America. and an all-lawyer Mozart Oboe

eludes B.C., Washington State, Increased involvement by indi-

Quartet, consisting of Victoria Oregon, and Alaska. We will Gray, Ted Kuchta, Patricia Os-

be seeking to increase our vidual B.C. lawyers in the activ- oko and Marie-Louise Fast.

working contact with neigh- ities of the CBA, the Intema-Ticket information for both tional Bar Association, the bouring U.S. Bar Associations.

Commonwealth Lawyers Asso- events is available from Nicole

Professional organizations dation, and the Association of Chipman at Blake Cassels (fel:

which represent the interests of Trial Lawyers, exposes our 631-3322 or FAX: 631-3305) C the legal community at the na- members to a broad range of tional, provincial and local lev- experiences, issues and ideas. Directory update els must be well organized, well These activities are desirable to funded with available surplus- overcome our geographic isola-es, fiscally responsible, recep- tion and are necessary in the Effective February 21, 1994, the tive to new ideas and be able to rapidly changing international new Ambulance Service head-respond in a timely fashion to climate. The forthcoming joint quarters is located at: new challenges. These organi- meeting of the National CBA zations must move to coordi- and the Commonwealth Law B.C. Ambulance Service nate their efforts and resources. Conference scheduled for Van- 2nd Floor, 1810 Blanshard St., We cannot afford, financially or couver during the summer of Victoria VSV 1X4. otherwise, to work in isolation. 1996, will present all of us with Tel: 952-0888; FAX: 952-0905

No more does physical separa-an excellent opportunity to par-

Contact Kristina Hausberg, ticipate and to broaden our per-tion equate to being in the spectives. Oerical Support, Legals (952-11backwaters" when it comes to 0896) for further information. C providing leadership or initiat- Despite our geographic isola-ing change. We can take some tion, B.C. lawyers, individually

Material culture In flux satisfaction in the numerous ini- and through our professional tiatives and achievements of organizations have in the past. our National CBA, our B.C. and are capable in the future, of Branch, the Law Society of B.C., providing superb leadership to A conference oninternationaland and some of our Local or Coun- the legal profession at a nation- domestic law and policy will be ty Bar Associations. The posi- al and international level. We held at UBC on May 20 to 22, tive results of our organized must not be constrained by ei- 1994. This international confer-collective efforts are becoming ther our geographic or percep- ence will explore the law of mate-increasingly evident. tual isolation when it comes to rial cultural heritage. Organizers

We have recently seen the fast providing creative solutions to report that several developments the challenges facing our pro- have created a new urgency to

response by the National CBA fession and the justice system.C reflect on material cultural law which resulted in a public re- and policy: physical risks arising traction and an apology from the Minister of National Reve- There's no biz from economic development,

nue David Anderson for his in- like law biz warfare, environmental crises, and political instability; a pro-

temperate remarks linking law- found re-evaluation of the role of yers with tax cheaters. It can be museums in industrialized na-observed in many initiatives The UBC Law Alumni Associa- tions; the enormous growth in which have found their genesis tion has two events planned for the international art market and in British Columbia and have this spring. Continuing its se- its relationship to the theft and been exported to other jurisdic- ries of quarterly breakfast, the illicit transportation of cultural tions, such as the Law Founda- Association will host Mr. Jus- materials; and the assertion of tion concept. adequately fund- tice Lamer on Tuesday, May 10 rights to own and possess cultur-ed Special Compensation at 7:30a.m. al material by countries of origin Funds, and comprehensive mandatory liability insurance On May 7, at the Faculty Club, and indigenous people.

programs. The Law Week pro- the Association will present a For further information or to reg-grams organized by Local and variety night of song, comedy ister, contact Professor Robert K. County Bars throughout British and some serious relief. Talent Paterson, Faculty of Law, UBC; Columbia and coordinated by lined up so far are J.J. Camp, Tel: 822-3905. C the B.C. Branch are a successful Q.C, who will be the emcee;

Catherine Best; Georgialee

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.

ACTS IN FORCE

Foresters Amendment Act, 1993, S.B.C. 1993, c.17, (Bill 34), amends the Foresters Act, R.S.B.C. 1979, c.141, expanding the definition of the "practice of professional forestry", adding a provision to state the purpose of the association, making or­ganizational changes, providing for the issuance of two classes of special permits, one to allow foresters from outside the province to practice forestry and the other to allow qualified persons to practice limited types of forestry work, in­creasing the penalties for offences under the Act, setting out the process for dealing with com­plaints from the public and establishing a disci­plinary procedure.

itt force ]~m1111ry 27, 1994

Medical and Health Care Services Act, S.B.C. 1992, c.76, revised the constitution of the Medical Services Commission to include representatives from the government, the B.C. Medical Associa­tion and the public.

sectiott 2.1 of the Act itt force Febnulry 11, 1994

&sidential Tenancy Amendment Act, 1993, S.B.C. 1993, c.68, (Bill67), amends the Residential Tenancy Ad, S.B.C. 1984,c.15, in:ter alia

(a) repealing s.44.1, providing for payment to the registrar; and

(b) allowing the minister to establish a Man­ufactured Home Park Dispute Resolution Committee comprised of a chair and vice­chairs none of whom are a tenant of nor an owner of a manufactured home park and other members 1 I 2 of whom are owners and 1/2 of whom are tenants of manufactured home parks.

sectiott 20 tnul thtJt pm-t of sectiott 22 erttJCtins s.45. 72 of the ResiderttitJl Tett~~t~cy Act itt f~ Felmult'y 25, 1994

Ann McLean

Consumer Protection Statutes Amendment Act, 1993, S.B.C. 1993, c.39, (Bill21), amends the Con­sumer Protection Act, R.S.B.C. 1979, c.65, clarifying that a direct sale does not include a sale by tele­phone, mail, fax or any other method that does not involve face to face contact, providing for the li­censing of direct sellers, including a requirement that an applicant for a licence provide satisfactory security and allowing a direct sales contract to be cancelled within a one year period if the seller is not licensed, and providing additional protection for purchasers from direct sellers, including a pro­vision that certain contracts be in writing and con­tain required information.

sectiotts 1(b), (c), ~md (e) 1111d 3 • 8 in forceAptil1, 1994

REGULATIONS TO NOTE

Social Service Tax Act: Social Service Tax Amend­ment Act (No. 2), 1993, B.C. Reg. 84/58, the Social Service Tax Act Regulations is amended repealing the provisions in Division 8, relating to legal serv­ices and providing

(a) effective February 4, 1994 a disbursement for legal research or secretarial and other sup­port services is a prescribed disbursement and is subject to tax (replacing a similar pro­vision which did not refer to legal research);

(b) effective February 4, 1994, fees and charg­es for faxing, printing and photocopying are excluded from the purchase price for legal services and are not taxable, provided the charges are reasonably related to their cost in­curred by the person providing the legal serv­ices (replacing a similar provision);

(c) effective April1, 1993, legal services are exempt from tax if they are provided to a law firm or notary firm by a lawyer or notary em-

6

Legislative Update (continued)

played exclusively by the firm under con­tract or as an associate counsel if the pur­chase price is recovered in the sale price for the legal services directly from the firm's cli­ent (replacing a similar provision);

(f) for the period from June 1, 1992 to Febru­ary 25, 1993 and since April1, 1993, a corpo­ration is exempt from tax in relation to legal services provided by a lawyer who is an em­ployee of a related corporation (a new provi­sion).

(d) effective April1, 1993, the portion of le­gal aid services which is paid for by an indi­vidual to whom they are provided is exempt from tax (replacing a similar provision);

B.C Reg. 40/94 deposiUd Februmy 4, 1994, with effective dRtu ll8 noted above

Forest Act; Forest Amendment Act (No. 2), 1993, B.C. Reg. 147/88, the Silviculture Regulation is ret­roactively amended and then replaced by B.C. Reg. 42/94, the Silviculture Practices Regulation, with expanded provisions governing silviculture planning and implementation.

(e) for the period from June 1, 1992 to Febru­ary 25, 1993 and since April1, 1993, certain legal services purchased by an Indian, a band or aboriginal organization are exempt from tax (a new provision); and

B.C Reg. 41/94 effective AprilS, 1988; B.C Reg. 42/94 effective Febnulty 7, 1994

Free waste reduction kit available

Industries, commercial business and institutions contribute ap­proximately 60 per cent of the solid waste generated in the Greater Vancouver Regional District. Both the province and the region have set similar goals to reduce waste generation by 50 per cent by the year 2000.

You can obtain the kit. ~duce, Reuse, &cycle- It's Your Busi­ness" at no cost. The kit con­sists of brochures with easy-to­follow steps to: find out what you can recycle; reduce waste generation through changes in purchasing practices; and much more!

Call the CBA (B.C. Branch) of­fice at 687-3404 to order your free kit. c

Information rights week set for April

The B.C. Freedom of Informa­tion and Privacy Association (FIP A) and the B.C. Library As­sociation will present Informa­tion Rights Week in British Co­lumbia, Aprilll to 17, 1994.

The week will focus on issues of public access to information and the extension of freedom and information and privacy legislation in British Columbia.

Activities include public forums on health care records: access

and privacy concerns; and, our vanishing privacy: is our per­sonal information out of con­trol.

For a complete schedule of events, call the FIP A office at 739-9788. c

REPORTS AVAILABLE

The Legislation and Law Reform Committee has received a copy of the following reports from the B.C. government. Information may be obtained from the source noted or from Ann McLean, B.C. Branch Legislation and Law Reform Officer in Victoria (598-2860).

Report

Three independent evaluations of the Forest Practices Code

Report of the Matkin Inquiry into the VSE

Report by Professor Mark Thompson on the Employment Stattdards Act

Report of the B.C. Advisory Committee on the Status of the Artist

Update on the Environmental Assessment Project

Municipal Sewage Discharge Criteria (sumtnilry of technical papers)

Source

Ministry of Forests {Econom­ics and Trade Branch- 387-8610)

Crown Publications (386-4636) - cost $15.00

Ministry of Skills, Training and Labour (356-7274)

Ministry of Culture -Public Affairs (356-6305)

Environmental Assessment Project (952-0575)

Ministry of Environment. Lands and Parks - Municipal Waste Reduction Branch (387-99_1Zl

)

I ~ :i l!!i iS ~

Shelley Bentley

llps on how to deal with the media

Bob Spence of Media Wise and Della Smith of PJS Communica­tions addressed Vancouver Crim­inal Justice section members on the workings of the media and gave tips on how to communi­cate an accurate message.

In broadcasting, format drives content and is supreme; content is secondary to format, which is secondary to time. It is important then if you want to remain un­edited, not to give the reporter anything extra. Verbosity means the reporter will edit to fit time constraints.

In the print format, the lead par­agraph must encompass the 5 W's- who, what, where, why and when. Content is eliminated from the bottomofthestoryup, until it fits the space provided. What is left must tell the story.

Deadlines are all-pervasive. In radio, the individual reporter will face six to eight per day; in televi­sion, one per day, in print, one or two per day.

Spence pointed out that unlike lawyers who have a single pro­fessional standard, journalists / reporters / interviewers are sub­ject to no standard or code of ethics. He categorized the factors which drive media:

• conflict, or contentious is­sues and subjects;

• immediacy, or late-breaking topical stories;

• novelty;

• locality, materials with a lo­cal impact or localized angle;

• danger, which feeds public appetite for sensation;

• celebrity;

• human interest, which em­braces the edict "comfort the af­flicted."

Della Smith then highlighted some of the "do's" and "don'ts" of giving interviews which are applicable to all media. Always ask the reporter requesting the interview what the focus of the piece will be. This will allow you to prepare properly. Never say "no comment," since that creates a perception of hiding something; say instead "the matter is before the courts and I am unable to discuss it." Never say ":Don't quote me." It leaves the reporter wondering whether you refer to the news itself, the identity of the spokesperson, or the use of direct quotes.

H a question contains offensive language or words you do not like, do not repeat them even to deny them. lJo not let a reporter put words into your mouth. Gen­erally only the response of the person being interviewed is broadcast, not the question. As long as you do not repeat the offensive language it will not be printed or broadcast. Analyze the questions asked. Many are "loaded" or "springboard" or rumour-mongering or specula­tive. Control techniques in an­swering include "bridging" - (yes, but ... ); "hooking" - (many things are important, the first thing is ... ); "flagging" - (the most important thing is ... ); and "fogging: - (calcu­lated ambiguity).

Be prepared. Write down your key answers and relevant points before an interview takes place. Bring notes to help you stay on track. Remember that you're the expert. You know the subject better than the interviewer. Most journalists are not specialists in your field, so you should not ex­pect them to know much more than the general public about the topic. If a reporter raises a poten­tially negative issue remember that they are probably "fishing." Deal with uninformed issues di­rectly then move on to positives as quickly as possible. Don't use legalese or technical language. Answer the interviewer's ques­tions briefly and as directly as possible. Be factual. IJon' t try to outsmart the interviewer. The interviewer is responsible for get­ting clear and concise informa­tion so that it can be accurately conveyed to the audience. If he or she doesn't understand you, he or she can't use what you say.

At the conclusion of the inter­view, don't ask what the inter­viewer will do with the material. He or she is usuallyinnoposition to make a commitment immedi­ately following an interview. It depends on what other news breaks at the time, what the boss thinks of the idea, and dozens of other factors.

New scheme proposed by OLRC to extend property sharing laws to non· traditional couples

The Report of the Ontario Law Reform Commission entitled "Gay, Lesbian and Unmarried Het­erosexual Couples and the Family Law Ad: Accommodating a Diver­sity of Family Forms" was dis­cussed in a recent meeting of the Gay and Lesbian Section.

In this Report the OLRC recom-

8

Section Talk (continued)

mends extending the property sharing provisions now only ap­plicable to married couples to non-married couples and gay and lesbian couples who decide to voluntarily register under a new registered domestic partnership scheme. It also recommends that various types of domestic con­tracts be legally available to gay and lesbian couples. The Report makes provision for the enforce­ability of these contracts and rec­ommends allowing couples to contract out of sections of the Family Law Act.

According to Susan Boyd and Keith Farquhar, who presented the Report to the Section, the reg- . istered partnership option has two advantages:

1) It avoids any inappropriate assumptions that gay and lesbian relationships parallel heterosex­ual spousal relationships; and

2) It leaves the institution of mar­riage unaffected constitutional­ly. In this scheme registration does not depend on the existence of a sexual relationship. Anyone can register as a couple, for ex­ample, two sisters.

Voluntary registration reflects changing social values and the increasing diversity of types of families. It also coincides with the Charter and the development of human rights jurisprudence. The Report supports the concept of family values not marriage alone. It argues that the essence of the concept of family is intima­cy, mutual economic independ­ence, and living together ina dose, personal relationship that is of primary importance in both per­son's lives.

Unmarried heterosexual couples can register anytime they want, but after three years, or after a child is born from the relation­ship, the couple is automatically registered. With gay and lesbian couples it will never be automat­ically assumed that they are spouses after a lengthy period of cohabitation. There must be an

active step to register as domestic partners.

Given the complex politics with­in the lesbian and gay communi­ty, where disagreement contin­ues over whether community members should ask the law to assimilate their relationships with those of heterosexual couples, the OLRC sees this registration pro­cedure as an alternative. Boyd noted that the academics who wrote the background paper in the Report were aware of these concerns but seem to have' taken the pragmatic view that as long as a couple-based piece oflegisla­tion,suchas the Family LawAct,is going to remain then those gay and lesbian couples who wish to take the benefits of the legislative scheme should be able to do so. The OLRC is dear that the key intent is to prevent the economic exploitation of one by the other.

Many family law critics have ar­gued that the Family Law Act type of scheme primarily benefits wealthier couples and at the same time detracts from political pres­sure on the state to redistribute wealth. Although Boyd finds that, on the whole, the Report is very progressive, Farquhar thinks that it has fundamental problems which must be addressed. He questions why the report covers only support and property divi­sion and only deals with the Fam­ily Law Act. Farquhar suggests that if one looks at the whole picture, including all issues aris­ing out of partnerships, the idea of registering domestic partner­ships may not be sustainable. The OLRC provides no detail on how the registration scheme should be set up, maintained, and what the long-term results are. Fur­thermore, the Report allows for registration of partnerships to be unilaterally revoked. Farquhar suggests that this is a real prob­lem for the weaker party. There is no discussion about the conse­quences of revocation. Unilater­al revocation arguably neutraliz­es the entire scheme.

Canadian Real Estate Association plans new rules for disclosure of agency relationships

The B.C. Real Estate Association is introducing in 1994 a massive program of education involving all real estate licensees, to meet a requirement of the Canadian Real Estate Association's Code of Eth­ics which will become effective in 1995.

The proposed requirement will require all persons licensed un­der the Real Estate Act who are members of a Board, to disclose fully the licensee's relationship to the parties involved in a real es­tate transaction. Gerald Neely of Pearlman and Lindholm gave a thorough presentation in a recent Vancouver Real Property Section meeting on the legal considera­tions involved in this new devel­opment.

A brochure delivered to the par­ties will be the principle method through which the agency rela­tionship or lack of it, and the duties of the agent, will be made known to parties to a transaction. The licensee will have an obliga­tion to explain the contents of the brochure to the party with whom the licensee is dealing, and to obtain a written acknowledgment from that party of the receipt of the · brochure. A likely conse­quence of this proposed disclo­sure will be the emergence of a number of different forms of agent representation.

Neely notes that while the law is dear that an agent can't act for both parties without their knowl­edge and consent, the fact that the current Multiple Listing Con­tract provides for appointment of the selling agent as a sub-agent who is paid by the vendor has obscured the actual role of the real estate licensee in some trans­actions. Some licensees have con­sidered their roles to be those of

Section Talk (continued)

facilitators who put parties to­gether to effect sales. Duties of both confidentiality and disclo­sure are disregarded innocently.

If the assumption has been that the current listing contract made the selling agent the agent of the vendor, the courts are leading the way toward a full examination of all facts to determine the real re­lationship existing between agent and principal. The test for the agency relationship may be whether the selling agent devel­oped the necessary relationship of trust and confidence with the principal and not what the listing contract stated.

The direction this issue is taking in Canada has been influenced by trends in the U.S. In the U.S. two approaches have been taken. First, the majority of states have opted for the adoption of "alter­native agency relationships." For example,somestatesprovidethat all members of a real estate board are deemed to be agent for the purchaser, With the exception of the listing agent and except where the listing agent represents both with their consent. Other states stipulate that the members are all agents of the vendor unless the buyer acknowledges in writing that the listing agent represents the buyer as well. Because of the confusion arising from this first approach a second set of ap­proaches has been taken to create something other than an agency relationship. Commonly these cast the licensee as a facilitator or mediator, or an independent con­tractor. The object is to reduce the Realtors duties and liabilities. Such non-agency approaches have not become popular partly because of a concern about loss of protection of the public.

The approach in Alberta in the last several years has been to elim­inate sub-agency and to provide by the listing contract that all members of a board (except the selling agent) are agents for the buyer. Dual agency is permitted by agreement between the par­ties. Dual agency occurs not only

where one sales person acts for both vendor and purchaser, but also where two sales people in the same office act for the vendor and purchaser separately. It may arise where the licensee acting as listing agent for the vendor then acts as a seller's agent in locating a home for the vendor. The prob­lem of dual agency is magnified when property is listed with one branch of a multi-branch agency. By consenting to dual agency a vendor and a purchaser will have agreed, upon signing the disclo­sure acknowledgments, to limit the agent's duties of confidential­ity and disclosure to both of them. The agent will not be able to dis­close the price a vendor will ac­cept or the purchaser will offer, or the motivation on the part of either party for their decision to sell or buy, or personal or confi­dentialinformationreceived from either party.

According to Neely, single and dual agency documents together with proposed seller's agent and buyer's agent contracts are now undergoing trial use in an area of the Vancouver Real Estate Board. It is expected that they will be available for examination and comment by conveyancers as soon as they have been adopted by the B.C. Real Estate Associa­tion.

Leading Canadian administrative law experts to visit Vancouver

Two of Canada's leading author­ities on administrative law will be visiting Vancouver at the invi­tation of the Administrative Law Section. Professor David J. Mul­lan of Queens University will speak on April 18 and the Hon­ourableRobertF.Reidwillspeak on June 14, 1994.

Administrative law is one of the fastest developing fields of prac­tice in Canada. Decisions of ad­ministrative tribunals impact all aspects of life and can have a profound effect on individuals as

9

well as companies. Provincial administrative tribunals are pow­erful and range from the Work­ers Compensation Board, the Public Utilities Commission, and the Environmental Appeal Board.

Federal tribunals include theCa­nadian Radio and Telecommuni­cations Commission, the Canada Transport Commission, the Im­migration Appeal Board, the Pen­sions Appeal Board and many other federal bodies exercising control over all aspects of com­mercial and public life in Cana­da.

Professor Mullan is a leading scholar in the area of administra­tive law. He will speak on the role of lawyers advising admin­istrative tribunals.

The Honourable Robert F. Reid has had a distinguished career as a lawyer and as a judge of the Ontario High Court. Mr. Justice Reid will be discussing current practice developments in Cana­dian administrative law.

For more information on these events, please contact James M. (Tim) Mackenzie, co-chair, Ad­ministrative Law Section at 682-7474. To register for these events, send your cheque for $36 and your business card to Palbinder I<. Shergill, Pidgeon Schroder & Company, Suite 1119-808 Nelson St., Box 12168, Vancouver V6Z 2H2. c

Bluman appointed to new Commission B.C. Branch member Barbara R. Bluman has been appointed to the new tripartite Medical Services Com­mission She is one of three members of the public representing the inter­ests of the beneficiaries on the Com­mission Bluman is currently chair of the Emergency Medical Assist­ants Licensing Board. She has been active in the CBA as past chair of the Workers' Compensation Section and has also served as vice<hair, Work­ers' Compensation Review Board and chair of the Human Rights Board of Inquiry. c

10

Your Registry Questions Answered

Di'CJOt'Ce Act Sectiott 2 Q: Does a • child of the marriage" include a part­time community college student, 19 years of age?

A: This issue was recently canvassed by Master Joyce in the decision Farden v. Farden, (unreported) New Westminster Registry 0031221. Responding in the negative, Master Joyce set out a list of eight inclusivecircumstanceswhichwouldassisttheCourt in concluding whether or not an individual would be considered a "child of the marriage" within the meaning of Section 2(b) of the Divorce Ad. These factors are: 1. whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; 2. whether or not the child has applied for or is eligible for student loans for financial assistance; 3. the career plans of the child, i.e .. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; 4. the ability of the child to contribute to his own support through part-time employment; 5. the age of the child; 6. the child's past academic performance, wheth­er the child is demonstrating success in the chosen course of studies; 7. what plans the parent made for the education of their children. particularly where those plans were made during cohabitation; 8. at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought. NB: The definition of "child" under the Family Relations Ad is a person under the age of 19 years.

RJde53(4) Q: Where is the authority to refer a matter (ques­tion) to the court when the District Registrar choos­es not to exercise his or her discretion under a specific rule? A: While Rule 53(4) does not specifically give the power to the Registrar, in Kulessa v. Borgman, (1978) 6 B.C.L.R 'UJ7 at 267, Hutcheon, J. said: "The registrar chose not to exercise his discretion under the rule and referred the matter to the court."

Rule 32(9) also allows a master, registrar or special referee to seek "the opinion of the court on any matter arising in the hearing."

~

Q: Are District Registrars under any obligation to provide written reasons following a hearing upon request of counsel or the parties when an appeal is being contemplated or filed? A:. Once an appeal from a Registrar's decision has been filed, written reasons will be provided on

request. Alternatively, the Registrar may choose to provide a copy of his / her bench book notes. The Registrar will not provide both. The Registrars' view that we will provide a written decision or notes but not both (except by the order of the Court) is supported by the cases ofRobertshawv. Schuman and Altman (1981) 21 B.C.L.R. 314 (B.C.S.C.) and Smith Hutchinson Gaw and Partridge v. Van't Reit (1985) 64 B.C.L.R. 41 (B.C.C.A.).

In the latter case, Chief Justice Nemetz points out that where a party decides to appeal (page 45)

" ... and no reasons have been delivered by the judge, counsel are always at liberty to ask the judge to give written reasons or obtain his notes. H this is done this court is better able to deal with the mat­ter." (emphasis added).

While Registrars attempt to keep good notes of the evidence, the notes are nowhere near verbatim. The primary purpose of the notes is to act as an aid to the Registrar in drafting his / her report or decision. The registrar should not be put in the position of being "note taker" for the parties. Robertshaw is some­times cited as authority for the principle that the Registrar's notes are "the record" of the proceeding.

In that case, however, Berger, J. was dealing with a case where no record of any kind was made. Wit­nesses were not sworn, there was not recital of evidence, there was not indication of the Registrar's findings, and there was no written decision.

Our view is that receiving sworn and other evi­dence, making our own notes, then setting out a summary of the evidence, our findings and deci­sions meets the requirements of Robertshaw.

RJdel Q: Can a Plaintiff by way of Counterclaim issue a Garnishing Order before Judgment? A:. Yes. Rule 1 defines "Plaintiff" to mean a person who commenced an action and includes a Plaintiff by way of Counterclaim.

Leg4l Professimt Act Sectimt 71(5Xt~) Q: Can a registrar review a client's bill if there is a judgmentissued against the client for the amount of the bill.

A:. No. Section 71(5)(a): "Where (a) judgment for the amount of the bill has been given in an action ... the bill shall not be reviewed unless the Supreme Court finds that special circumstances justify a re­view of the bill and orders the bill to be reviewed by a registrar." If you lulve '"'Y interesting or lllfUBJUU tpUIItit:ms, pleMe wri~ directly to /CHI'"'• Power, ""''"'gw 1WgistrAr pro­gmms, lAw Courts, 850 Burdett Ave., VictoriR V6W 1B5.

11

TQM for skeptics: international panel simplifies complex topic

"What is business doing about 'quality'?" and "What do busi­nesses expect from lawyers?" were the initial questions posed to two corporate clients at the recent Managing Partner Net­work Dinner Meeting.

Sandy Hall, coordinator of Chev­ron's legal Quality Improvement (QI) initiative, and Bill Purcell, Chevron Area Manager, Whole­sale Marketing, and part of the implementation team of QI at Chevron Canada, outlined Chev­ron's commitment to QI at all levels of the organization.

Stan Carter, president of Fireflex Manufacturing Ltd, represented the smaller corporate client at the meeting. He stressed that Fire­Flex has a continuing "quality control" program directed at con­verting his customers into "rav­ing fans." At the top of his list is the lawyer who's interested

enough in the firm to visit the plant and understand the practi­cal issues the company faces.

A second panel discussed the practical applications of TQM within law firms. Panelists in­cluded Roy Williams, James Neill and Robert Jones, Q.C.

Roy Williams, a principal in The Counsel Network, outlined five criteria that indicate a firm has an effective "quality" program in place:

1. you accept that clients and not the lawyer (law firm) de­fines quality;

2. there is a continuous proc­ess to determine how and what each clients defines as quality;

3. your firm measures every client's satisfaction on a con­tinuous basis;

New Westminster Bar celebrates centenary

A special dinner to honour and commemorate the cente­nary of the New Westmin­ster Bar Association was held on April12, 1994 at the Westminster Club.

An entertaining group of speakers provided a historical perspective of the New Westmin­ster Bar Association over the last 100 years.

An informal recep­tion and historical display preceded the dinner held at the New Westminster Courthouse Library. IJ

4. there is genuine accounta­bility in your firm- a process that provides timely and meaningful feedback of per­formance on individual files; and

5. there is a system to use the information gathered to im­plement changes as to how work is performed.

James Neill, partner with Davis Wright Tremaine in Portland, is chairmanofthe280-lawyerfirm's Quality Council. With his exten­sive experience in TQM imple­mentation in a large firm, he said although some partners are skep­tical, the firm continues their com­mitment to "quality." He said successful implementation of quality in a law firm requires five conditions:

1. client-centred approach to the practice;

2. leadership from the top;

3. extensive education of all members;

4. long term commitment (more than two years); and

5. willingness to change the way work is produced.

Robert Jones, Q.C., executive di­rector of the Canadian Corporate Counsel Association, concluded the evening by reviewing the is­sue of quality from the perspec­tive of Corporate Counsel. He discussed how law firms must "partner" with their corporate cli­ents to increase the effectiveness of legal services.

The Managing Partner Network is a program of The Counsel Network. In addition to dinner meetings, the network prooides members with re­sources, information and support in the "business of the practice of law. " Meetings are scheduled in Vancou­ver in October 1994 and in Calgary and Winnipeg in May 1994. Call 244-9315 or toll-free 1-800-COUN­SEL for further information about the Managing Partner Network. C

12

Member Services offers vacation specials ~~Q'(\

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0 Beat the summer heat and un­wind on the Shuswap Lakes! Waterway Houseboat Vaca­tions, a participant in the B.C. Branch Resorts Discounts Pro­gram, is offering special rates for B.C. Branch members. De­tails of this special offer are out­lined in the brochure included in this BarTalk mailing. The of­fer in the brochure has been ex­tended to April 30 so that you can enjoy a holiday in 1994 at the 1993 Waterway Houseboat's published rates!

The Resorts Discount Program is endorsed by the CBA (B.C. Branch) Member Services Com­mittee. Please refer to Page 17 in your B.C Branch Directory for a complete listing of resorts providing discounts to B.C. Branch members. C

. ~ v11\es f>t\\\S l(\\lttS

~eS o\ \~~\e \ot t(\e ~teasu \\ a~a\~ 6\te\a~

a~ Vantage Travel is offering an exclusive opportunity for B.C. Branch members to discover the roots of our language, law and culture. This two week journey includes special sight­seeing, events and private func­tions. Included in the itinerary are London, Edinburgh and Dublin with accommodation, sightseeing, special teas, and a gala farewell dinner and show at Jurys Cabaret included in the complete package cost!

Departures are on August 16 or September 20, 1994. Call Van­tage Travel at 1-8~33-0399 for complete details of this ex­clusive tour.

Vantage Travel is endorsed by the CBA (B.C. Branch) Member Serv­ices Committee. IJ

Product of the Month Document binding

madeeasyl Reports, presentations and other documents look more profession­al when properly bound. Inter­national Binding and Laminat­ing Systems, Inc. provides sim­ple-to-use systems that create bound documents that open flat and are easy to file. Information on these systems is included with this issue of BarTalk or call 538-3273 or toll-free 1-800-663-8184 for further details. IJ

Counsel Network endorsed in Alberta

The Counsel Network, a nation­~legal consul!ffig and recruiting firm, has recetved the exclusive endorsement of the CBA (Alber­ta Branch).

Endorsed by the CBA (B.C. Branch) Member Services Com­mittee since 1990, The Counsel Network is the first, and only, legal consulting firm to be en­dorsed by a Bar Association in North America. The Counsel Network provides a broad range of management consulting and recruiting services to lawyers, law firms and corporate legal depart­ments anywhere in Canada.

Forfurtherinformationabout'The CounselNetwork,caiiSteveNash or Roy Williams in Vancouver at 244-9315 or toll-free at 1-800-COUNSEL. IJ

Avoiding claims and complaints

As part of its risk management series, the Continuing Legal Ed­ucation Society is offering a new course this spring aimed at mem­bers practising in the area of cor­porate and commercial law. "Risky Business: avoiding claims and complaints in corpo-

rate-commercial practice,. will be presented on May 6, 1994 in Van­couver, with subsequent presen­tations in Kelowna on May 27, 1994 and in Victoria on June 3, 1994. This course is the third in the series and is based on those problems which the Law Society and its insurers have identified as giving rise to reports and claims against members in the areas of corporate and commer­cial practice. This area is the most costly area of practice for the insurers, giving rise to al­most 25% of all reports and al­most 39% of all reserves and ~y­ments in connection with claims.

A detailed course brochure and registration information is avail­able from CLE by calling 669-3544 or 1-800-663-0437. c-

&fllllk is published by the British Columbia Branch of the Canadian Bar Association, lOth Floor- 845 Cambie Street Vancouver, B.C. V68 5T3 Tel: (604) 687-3404 FAX: 669-9601

Editor: Limy HnetlaJ, Commu­t~ialtions Director 687-3404 Legisllltion tmd Uno kform Of­ficer: Ami McLelm (Victoria) 598-2860 SectilmTIIlk Editor: Shelley Bentley, Mehrille & Yeung 685-3881

AlisflliT Ellgle Photo 1ry (688-8867) is the CfA"'(B.C. Branch) official photographer. C Copyright the British Co­lumbia Branch of the Canadi­an Bar Association-1994.

The B.C. Brtmeh of the Csmlldilm &r AssocUrtitm rqtresents uoer 7,500 1Rwyers TDithm British Co­lumbill. The B.C. Brmu:h is dtdi­Cided to imprcroe tmd promote tiC­

cess to justia, to m1iew legislil­timt, initilde lllfD reform met~SUres tmd lld'Dti1U% tmd imprcroe the lld­ministnztUm of justia. On beluUf of the profrssion, tlte B.C. Brmu:h works to imprOTJe tmd promote knowledge, skills, ethictll sflmd­ards tmd weU-being of members of the legtd profasicm tmd promotes the interests of its members. a