Proud to be a lawyer, says CBA President Johnstone

NEWSLETTER "I'm proud to be a lawyer. I'm not apologizing for OF THE being a lawyer and I will speak out about the profes­CANADIAN BAR sion," said Cecilia Johnstone, Q.C., President of the ASSOCIATION, National CBA, to members at the Sept. 10, 1993 B.C. B.C. BRANCH Branch Annual Meeting.

SEPT/1 993

VOLUME 5 NUMBER 7

Johnstone also reported that the recently released ' report, "Touchstones for Change: Equality, Diversity and Accountability," has been controversial but there appears to be a will to move forward with the Bar as a leader on this issue for all professions.

She briefly noted that during her term as president, she will focus on programs to demystify the law, alternatives to disputes in court, health law issues (both ethical and moral questions), and open com­munication with the Branches. She further reported that the National CBA deficit will be eliminated in

Cecilia Johnstone, Q.C., (lejt), National CBA President in 1993/94 is joined by Jack Dunphy, Alberta Branch President at the 1992/93 Annual Meeting of the B.C. Branch on Sept . 10

this fiscal year. C

United Way ..................... 2

"Dear Thelma" ............... 3

PLE survey results ........ 4

Section Talk .................... 5

Legislative Update ......... 7

Vehicle Records .......... 10

AGM resolutions .......... 11

Provincial Council ....... 11

New tapes available .... 13

Financial pianning ....... 14

Important Notice;

Workers Compensation Act Amendments increase law firm operational costs

Bill 63, the Workers Compensa­tion Amendment Act, 1993, will make Part 1 of the Workers Com­pensation Act more inclusive and will make it compulsory for all law firms to be covered under the Act. Previously most office workers were not includ­ed under the Act unless their employer was required to regis­ter under an existing rate group. All law firms must reg­ister and pay assessments as of the effective date, Jan. 1, 1994. Law firms may be included in the general retail store rate group or there may be a new rate category set up for this group. The current assessment for the retail stores category is $1.09/$100 of assessable payroll up to a maximum of $51,300 per person per annum, which will increase to $1.36/$100 in

January. Compulsory coverage will apply to associates who are employees, paralegals and staff.

Under s.47 of the Act, the pen­alty for failing to file a return or assessment may be the capital­ized value of an injury, which in a long-term disability case may be a substantial amount, enough to bankrupt a small firm.

These changes may also affect premiums for private long and short term disability insurance that should be reduced as are­sult of WCB coverage. Howev­er, if partners in law .firms do not want coverage under the WCB plan, which will be op­tional, they will have to rely on full coverage in their private plans. By withdrawing many

(Please turn to page 14)

2

Members making a difference: United Way campaigns under way

There are 19 United Ways in British Columbia, all run by lo­cal boards of directors. Each United Way raises money for agencies in its own community. Giving to the United Way is "the way to help the most." Lawyers and law firm staff have been active leaders in sup­porting United Way campaigns throughout B.C.

Prince George and District United Way

Gerald Coole of Hope Heinrich is heading up the lawyers' cam­paign for the Prince George and District United Way again this year.

United Way of Greater Victoria

The 1993lawyers' campaign will be chaired for the third year by Doug Johnson, a part­ner with Skillings and Compa­ny. The 1992lawyers' cam­paign raised $50,000 from 197

Societies seek volunteer lawyers, assistance

The Crohn's and Colitis Foundation of Canada is seek­ing volunteers to serve as mem­bers of the Senior Advisory Committee to help direct fund raising through specific projects, for medical research.

Volunteers would serve with local chapters and it is estimat­ed that the committees would meet four times per year. For further information, contact Elma Stewart, B.C. Regional Di­rector at 877-1007.

The Elizabeth Fry Socl~ty of Greater Vancouver requires fi­nancial assistance to aid its seveenteen year old residential program for women. This pro­gram, Balaclava Residence, pro­vides housing, counsellling, community referrals and per-

donors in the Greater Victoria area. This year's goal is $52,000.

United Way of the Lower Mainland

The United Way effort is being led by Brian Canfield from Farris Vaughn Wills & Murphy. His team includes Leo Ami­ghetti, Q.C., from Russell & DuMoulin, Morley Koffman, Q.C. from Koffman Birnie & Kalef, David Pilley from Harp­er Grey Easton, Brenda Brown from Bougton Peterson Yang Anderson and Ted Zacks from McCarthy Tetrault. Last year the lawyers' campaign raised $275,000 - that includes both firm and individual donations from 30 of the largest firms in the Lower Mainland. Brian and his team are starting up several new campaigns this year and are expecting to raise $312,000 from the lawyers' sec­tion.

sonal support to women. Do­nations are tax deductible. Fur­ther information can be ob­tained by contacting Rosemary Cryer at 873-5501. Donations can be sent to the Elizabeth Fry Society of Greater Vancouver, 2412 Columbia St., Vancouver VSY 3E6.

Swim B.C. is looking for a vol­unteer solicitor, preferably a former swimmer who lives in the Greater Vancouver area, to provide 3 to 4 hours per week on a pro bono basis to assist with a variety of legal issues ranging from constitutional in­terpretations to contracts.

Swim B.C. is a province-wide organization representing the needs of both competitive Ol­ympic bound athletes as well as recreation participants. With an annual budget of $800,000 and a full-time staff of five, Swim B.C. is active in the up­coming Commonwealth Games

Twelve-year-old lAura MacKenrot, who receives treatment at the Arthritis Society, participated in the United WtlJ. of the Lower Mainland campaign kiclro!f. the Arthritis Society is one of over 100 agencies funded by the United Way of the Lower Mainland.

Your donation to the United Way is used to support agen­cies in your community

in Victoria as well as facility de­velopment, the Aquatic Foun­dation, athlete development and coaching education.

Contact AI Heather at 734-7946 (local 302) if you are willing to volunteer or require further in­formation. []

Law Courts Inn invitation

The Law Courts Inn is pleased to invite you to its Weekly Social Night to reacquaint the Vancou­ver Bar with the Law Courts Inn and other members of the club.

The social night will be held eve­ry Thursday between 4:30 p.m. and 7:00p.m. at the Inns of Court (public side).

Come by for a drink and enjoy an opportunity to get together with old and new friends! []

Dear Parker: "Who are those 'guys'?"

Dear Thelma:

Thanks for your informative note which you say you dashed off just after receiving your 1993-1994 CBA membership card and that handy 1994 pock­et diary. That was an interest­ing reaction you experienced which you tell me was captured by that memorable line from the movie, Butch Cassidy and The Sundance Kid - "Who are those guys?"

Well, Thelma, those "guys" is us - over 7,500 of us all togeth­er, men and women - practis­ing lawyers, academics, judges, articling students and law stu­dents here in B.C. and over 37,000 of us across Canada. No, you are not alone in not knowing as much as you should about the advantages provided by your CBA mem­bership.

Here in B.C., with the privilege of universal membership, a lot of us take our CBA membership for granted. Sometimes, we forget about these advantages. Sometimes, when we were law students or in our articles, no­body ever explained the advan­tages to us. (That's right, law students and articling students do not receive their CBA mem­bership automatically -they've got to take that extra step and sign up and it's a real bargain!)

Most often, we just don't recog­nize some of the things that the CBA is providing us on a daily basis -like the Telephone, FAX and Services Directory. A lot of our members know that the CBA is out there, right behind them, sort of like the faceless posse tracking Butch Cassidy and The Sundance Kid. But, they just haven't figured out who we are and what we are doing!

You are right, we are different

than the Law Society. For one thing, our members are not fearful wheri they see our name on an envelope as part of the re­turn address (just kidding!) Re­ally, the important difference is that the Law Society has a stat­utory mandate and its focus must be the "public interest." The CBA on the other hand, looks after most of the other im­portant responsibilities and du­ties of our profession that don't fall within the statutory power of the Law Society. And be­sides, we are a heck of alot more interesting than our friends the Benchers!!

Just to remind you, Thelma, it's "us", your B.C. Branch of the CBA who has the responsibility to review provincial legislation, initiate law reform measures, advance and improve the ad­ministration of justice, and to help ensure that the continuing legal education needs of law­yers are being met. While the Law Society has got "public in­terest'' as a mandate, we have proper self interest as part of our "to do list." Between us, we cover the bases and try to coordinate our efforts.

Put it all together and it's a big job, Thelma! And it's one that is being tackled by a tremen­dous number of hard working volunteers everywhere in the province. Some of us don't re­member when we have partici­pated in helping to get the job done. You say you can't re­member the last time you went to a CBA meeting. Well, I checked for you. You are a member of 5 of our 55 practise sections. We've got over 13,000 section registrants. Besides re­ceiving the notices and minutes and buying sets of section pa­pers, you've been going to at least two sections meetings a month - those are CBA meet­ings and that helps to get the job done. Sections are just one

J. Parker Mac:Olrthy CBA (B.C.Branch) President 93/94

way we tackle the task. I see you've already signed up and received some of those 58,000 referrals from the Lawyer Re­ferral service. One of your partners helped organize Law Week at your local courthouse last year. You probably guessed it by now, the CBA sponsors both of those pro­grams.

One thing you haven't sent us is a note telling us which of our 45 Branch Committees interest you. We are always looking for volunteers to help deal with everything from legislation and law reform, communications and legal aid to the thorny top­ics of no fault automobile insur­ance and the notaries issue. Tell us your interests, Thelma, and how you want to help. I know this kind of involvement is not everybody's cup of tea, but it's a way you can make a real contribution and influence change.

I can't agree with you more when you tell me that it's im­portant to receive something tangible for your membership dollars. Believe me, there are lots of tangibles- think about

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3

4

Immigrants report barriers, solutions to legal information needs

Immigrants are keen to learn about the laws of their new coun­try but face barriers caused by language, lack of timed ue to fam­ily and work, and lack of infor­mation about where to seek legal information.

These are some of the key find­ings of a $60,000 survey of five immigrant communities in the Greater Vancouver area conduct­ed by Dr. Brian Burtch of SFU and Kerri Reid of Malaspina Col­lege for the People's Law School.

The research project, funded by the Federal Department of Jus­tice and the Ministry of the Attor­ney General of B.C., conducted face-to-face interviews with 300 people from five immigrant com­munities. Bi-lingual research as­sistants interviewed equal num­bers of men and women from the Punjabi, Chinese, Hispanic, Viet­namese and Polish communities.

The project, called Discovering Barriers to Legal Education: First Generation Immigrants in Greater Vancouver, sought to identify problems faced by immigrants in accessing legal information, as well as make recommendations for improvements in legal educa­tion for immigrants. Half of those interviewed had attended a free law class by the People's Law School, while half had not.

Authors Burtch and Reid con­cluded that public legal educa­tion programs "do aid settlement by providing knowledge of a new system which reduces feelings of isolation and subsequently proves to be empowering."

Members of all five groups re­ported similar barriers to legal education, including:

• lack of English language skills

• the complexity of the law and legal terminology

• lack of knowledge about sources of legal informa­tion, and

• lack of time due to work and family duties.

Based on respondent's sugges­tions to reduce barriers to legal information for immigrants, the following recommendations were forwarded:

• more free law classes on more topics and in more locations

• more speakers in immi­grant languages

• provision of child care services at classes

"Dear Thelma" (continued from page 3)

BarTalk (10 times a year), the National magazine (even client's read it) and the Canadian Bar Review (world renowned) and how about those great savings and discounts arranged by our good old Member Services Committee? Everything from discounts on hotels and travel to new car purchases, law office insurance, supplies and equip­ment -how do we get it so cheap?

Our members are even provid­ed with some "cradle to grave" programs. Our own Canadian Bar Insurance Association pro­vides a full range of life and disability insurance products and we get a comprehensive package of financial planning and retirement savings pro­grams through our Canadian Bar Financial Corporation.

You're dead on when you say that someone should be provid­ing our legislative decision mak­ers with input from our profes­sion. The CBA has been doing it for years, at both our own pro­vincial Branch level and through the National office, on everything from judicial appointments, to confidential review of legislation, to coordinating submissions on

• free bus passes for needy participants

• more written materials in immigrant languages

• more use of the ethnic me­dia both to publicize legal education events, as well as providing legal informa­tion

• more training of immi-grant-serving agency staff.

For further informtion about the research study, contact Gordon Hardy, Executive Director at the People's Law School, ?SB-2565.C

legislative initiatives as well as law reform proposals such as the renowned lAw Reform for Sustain­able Development in B.C. Govern­ment doesn't always listen, but collectively we have made a dif­ference and a significant impact on them. Sometimes the message has got to be stronger - take for example the recent CBA/Law So­ciety successful challenge of the Social Services Tax on legal serv­ices. Stay tuned for round two!

The CBA also gives us and our families a terrific opportunity to meet people from across Canada -over80B.C.membersand their families were at the August An­nualmeetinginQuebecCity. The National Mid-Winter Meeting at Jasper this coming February looks like a winner too. Book the time off right now, Thelma.

For sure, the CBA is more than a membership card and a pocket diary, Thelma. Thanks for re­minding me that all of our mem­bers need a gentle reminder eve­ry so often.

Sincerely,

~

acCarthy President 93/94

Editor's Note: the letter is fictitious; the facts aren't!

~ :;

~ ~

~ ..:

§ :1 <

Shelley Bentley

New provincial court family rules outlined

Monna Huscroft of the Legal Services Branch, Ministry of the Attorney General and Charlotte Adams, Manager of Court Serv­ices, Western Communities, spoke to Victoria Family Section members about the new Provin­cial Court Family Rules. They began by examining the back­ground, authority and applica­tion of the Rules and went on to highlight some of the more sig­nificant new Rules.

The Rules were enacted under the Court Rules Act, S. 1 (1) and S.1(2) rather than under the reg­ulations pursuant to the Family Relations Act. Recent statistics show that unrepresented liti­gants are the largest users of Provincial Court. The new Rules are specifically geared to­wards these users. The Rules were developed by a committee struck by Chief Judge Collings, including private practitioners, court services representatives and the Attorney General De­partment's Policy Analyst.

Enacted by Order in Council on April 1, 1993, the new Rules ap­ply only to Family Relations Act and some Family Maintenance Enforcement Act matters. They do not apply to Family and Child Services Act matters because of

current plans to amend or re­place this Act.

In highlighting some of the new Rules, Ms. Huscroft and Ms. Adams noted the sweeping na­ture of the changes.

In maintenance applications fi­nancial statements must be files with the Court by both sides be­fore or on the first appearance in Court. On failure to file the Court may order up to $5,000 for the benefit of the spouse, parent or child.

A new form named "Consent to Court Date" will, upon signing by both parties, allow an ad­journment of the first appear­ance or a request for a trial date without the necessity of appear­ing in Court. Parties will con­tact the Court Registry to obtain Court dates. An already sched­uled Court date can be changed by use of this form as long as it is filed at least 21 days before the date sought to be changed.

The new Rules now grant the Provincial Court the power to order production of documents and to order paternity testing. Applications for such orders are done by way of Notice of Motion. With respect to pater­nity testing, if a party refuses to provide a blood sample the Court may draw an adverse in­ference.

The new Rules require parties to provide an address for serv­ice on each document filed and to notify the Court if their ad­dress changes. A party is enti­tled to rely on the address pro­vided for all steps in that appli­cation. Service of any docu­ment other than a summons or subpoena to an address for service can be effected by regis­tered mail. Personal service by anyone other than a peace offic­er is proven by affidavit. Serv­ice by registered mail can be proven by certificate.

Rules with respect to orders have now been made easier and more certain. If no lawyers are involved in an application, the court clerk will prepare the or­der. Lawyers for successful parties will be required to draft orders. If the other party is un­represented, the consent of the other party is now dispensed with.

Broad powers have now been given to judges to do what is fair, including cancelling or set­ting aside orders where the Rules have not been complied with. These potentially far­reaching provisions contained in Rules 15(5) and (16) were in­cluded to help people to obtain decisions as fairly, quickly and inexpensively as possible.

NAFTA extends negative environmental impli· cations of the FTA

Michelle Swenarchuk of the Ca­nadian Environmental Law As­sociation outlined her views of the environmental problems posed by the proposed North American Free Trade Agree­ment (NAFTA). She argued that the NAFTA both repeats environmental problems creat­ed by the Canada-U.S. Free Trade Agreement (FT A) and worsens some of them. Envi­ronmental problems already as­sociated with the Canada-U.S. FT A lie in four areas.

The agreement puts limits on Canadian environmental man­agement by committing Canada to perpetually supply the American market with all our natural resources, including water.

The Canadian pesticide stand­ard which is based strictly on health considerations has been lowered to harmonize with the

6

SectionTalk (continued)

American model of "risk bene­fit analysis." This standard is set by balancing health effects against economic loss to pro­ducers.

The Ff A was used to strike down a Canadian regulation under the Fisheries Act that re­quired the landing of fish caught of the west coast for bio­logical sampling. This is a par­ticularly graphic example of how the Ff A can be used in in­ternational courts to lower envi­ronmental standards. The Ca­nadian government has also used it against the U.S. Envi­ronmental Protection Agency when they wanted to phase out asbestos use.

Finally the Ff A has also com­mitted Canada to a dispute res­olution process that entrenches the right of the U.S. to use its countervail and antidumping laws to challenge Canadian laws at international trade pan­els. Canadian governments may be challenged if they pur­sue policies to conserve re­sources and maintain employ­ment. This includes such poli­cies and practices as local processing of lumber, subsidies for environmental protection, government procurement poli­cies, and waste reduction re­quirements for food packaging.

The NAFf A threatens to extend the negative environmental im-

Native Justice Section Chair Hugh Braker (centre) with Susan Tanco, Section Co­Secretary and Treasurer (left), and Ian McCrae of the Department of Justice, Ottawa met prior to the special Section meeting.

Section leads in analysis, information to members

The Native Justice Section held a special meeting on July 8, 1993 soon after major decisions were rendered by the Court of Appeal in late June.

Three panels focused on native fishing decisions, hunting deci­sions and the Delgamuukw de­cision.

Susan Tanka chaired the native fishing panel. Panel members included David Rosenberg, Louise Mandell, J. Keith Lowes,

and Ian McCrae.

The panel on hunting decisions was chaired by Jane-Anne Man­son and included panel mem­bers Hugh Braker, Lewis Har­vey, Cheryl Tobias, Charles Willms, and Tom Wood.

Hugh Braker chaired the panel on the Delgamuukw decision and panelists included Louise Mandell, Arthur Pape, Bryan Williams, Q,C., and, Geoff Plant. []

plications of the Ff A. Canadi­an environmentalists worry about the environmental impli­cations of the NAFfA on two fronts: resource use and envi­ronmental standards. The NAFfA continues the FfA re­quirement of perpetual supply of the American market with all of our resources, including en­ergy, while exempting Mexico from the energy requirement. The NAFT A also includes a very comprehensive plan for the harmonization of Canadian, Mexican, and U.S. standards also come under the harmoni­zation program. Canada (or the U.S. or Mexico) may establish their own higher standards, but only to the extent that such standards do not create "unnec­essary obstacles" or "disguised restrictions" on trade. The NAFfA provides for the crea­tion of "scientific" panels to ad­vise in disputes concerning en­vironment related issues. Hear­ings will be held in secret and panels will be composed of rep­resentatives from governments and industry-dominated inter­national bodies, not environ­mental organizations.

Ms. Swenarchuk concluded by noting that NAFf A is an envi­ronmentally and economically damaging agreement. It creates barriers to conserving resourc­es, undertaking local and re­gional development strategies, requiring local content in prod­ucts, providing subsidies to ad­dress local and regional devel­opment strategies, requiring lo­cal and regional disparities, and setting strong environmental standards. The FfA, the NAF­T A, and other such trade agree­ments constitute an overarching international regime that limits our government's powers. Laws passed according to our democratic processes have been invalidated under this regime.

Please turn to page 10

You will see a reference to the number of the Bill (First Reading Bill Number) when it was introduced into 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 First Reading 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 FROM PREVIOUS SESSION

The following acts were passed in the 1992 session and have been brought into force by regulation.

Municipal Amendment Act, 1992, S.B.C. 1992, c.18, amends the Municipal Act, R.S.B.C. 1979, c.l8, as to s. 453(1), allowing substituted service of a notice of delinquent taxes on Crown land which is held under lease, licence, permit or loca­tion.

section 40 of the Act in fotu September 9, 1993

Freedom of Information and Protection of Priva­cy Act, S.B.C. 1992, c.61, provides access to infor­mation held by all government ministries, crown corporations and over 200 provincial boards, commissions and agencies, subject to limited ex­ceptions. The Act imposes an obligation on the public bodies to assist applicants making re­quests for information. Individual privacy is protected by prohibitions on the unauthorized collection, use and disclosure of personal infor­mation held by the public bodies. Individuals have a right of access to and a right to correct personal information. (Please note the amend­ments to the Act contained in the Freedom of Infor­mation and Protection of Privacy Amendment Act, 1993 described below).

Act, except section 78(2), in force October4, 1993

ACTS IN FORCE FROM 1993 SPRING SESSION

The following acts, passed in the 1993 spring session, are now in force and are reported in order of bill number.

Social Service Tax Amendment Act, 1993, S.B.C. 1993, c.69, First Reading Bill Number 7, amends the Social Service Tax Act, R.S.B.C. 1979, c.388,

Ann McLean

providing for a 7% tax on taxable services, gener­ally those services relating to the repair or altera­tion of tangible personal property.

sections 1(e), (g) and (h), 5, S(b), 9(b), 10(c), 13, 14(b), 16(b) and (d) of the Act in fOra! October 1, 1993

Energy, Mines and Petroleum Resources Statutes Amendment Act, 1993, S.B.C. 1993, c.l2, First Reading Bill Number 28, amends the Petroleum and Natural Gas Act, R.S.B.C. 1979, c.323, repealing def­initions which will be made by regulation or are no longer needed, dealing with approvals for geo­physical exploration, reducing the basic area for which a permit is issued, removing the waiver of penalty payments for continuation of a lease be­yond its ten year term where a well is drilled dur­ing the continuation period, removing the 90 day limit for production of petroleum and natural gas from some tenures, removing references to "grid areas" as a result of the adoption of a new Provin­cial survey and mapping standard and making consequential amendments to the Coal Act and the Geothermal Resources Act

sections 1 -3, 7 and 10- 23 of the Act in force October 1, 1993

Multiculturalism Act, S.B.C. 1993, c.57, First Read­ing Bill Number 39, recognizes the multicultural nature of the province, requires each ministry and Crown corporation to report annually on initia­tives it has taken to promote multicultural policies and provides for grants to not for profit organiza­tions. The advisory role of the Multicultural Advi­sory Council is set out.

in force September 9, 1993

Cabinet Appeals Abolition Act, S.B.C. 1993, c.38, First Reading Bill Number 42, amends the

(a) Coal Act, R.S.B.C. 1979, c.51, eliminating appeals to the cabinet from decisions of the minister under the Act,

(b) Mineral Land Tax Act, R.S.B.C. 1979, c.260, eliminating the appeal to cabinet from a refus-

~ i ~ tJ ;S ei ~ i!l :;;!

8

Legislative Update( continued)

al of the minister to allow an owner of min­eral rights to defer mineral land tax,

(c) Mineral Tenure Act, S.B.C. 1988, c.S, elimi­nating the appeal to cabinet of a decision of the minister relating to the use of surface rights under s.13(4) and 15(3) of the Act,

(d) Natural Gas Price Act, S.B.C. 1989, c.74, replacing appeals to cabinet from cancella­tions by the minister of permits, licences and leases under s.6(2) of the Act with appeals to the Supreme Court and Court of Appeal, and

(e) Petroleum and Natural Gas Act, R.S.B.C. 1979, c.323, replacing appeals to cabinet of the minister's decisions to cancel permits, li­cences or leases under s.143 of the Act, with appeals to the Supreme Court and the Court of Appeal.

sections 6, 7, 12 -14, 29 and 31 of the Act in fora September 9, 1993

Legal Profession Amendment Act, 1993, S.B.C. 1993, c.31, First Reading Bill Number 53, amends the Legal Profession Act, S.B.C. 1987, c.25, making organizational changes to the Law Society and in­ter alia

(a) expanding the membership of the Law Society to include non-practicing members, authorizing rules dealing with retired and non-practicing members and providing that non-practicing members are not authorized to practice as notaries,

(b) permitting the appointment of a person who is not a member to any benchers' com­mittee,

(c) allowing rules to be made establishing conditions under which members may prac­tice as mediators,

(d) allowing lawyers from other jurisdictions to obtain permission to practice in B.C. for a period of time rather than in respect of a particular rna tter,

(e) prohibiting people who are no longer members due to disciplinary proceedings from practicing law, whether or not they are paid for doing so,

(f) removing the requirement that a member be a Canadian citizen,

(g) repealing s.32, which prohibited associa­tion by members in the practice of law with non-members outside the Province,

(h) providing that the procedure under the Rules of Court for the assessment of costs

and review of bills and agreements applies to the review of fee agreements, including con­tingent fee agreements;

(i) clarifying that the Unclaimed Money Act does not apply to money in members' trust accounts; and

making consequential amendments to the Attorney General Statutes Amendment Act, 1989.

in fora November 1, 1993

Freedom of Information and Protection of Privacy Amendment Act, 1993, S.B.C. 1993, c.46, First Reading Bill Number 62, amends the Freedom of In­formation and Protection of Privacy Act, S.B.C. 1992, c.61, inter alia amending some exceptions to the disclosure requirements, clarifying some provi­sions relating to protection of privacy, and making consequential amendments to the Insurance (Motor Vehicle) Act, and the Medical and Health Care Servic­es Act.

sections 1(a), 2, 3, 5 - 20, 22(a)- (c), 23 t~nd 24. that part of section 26 that enacts s.79.1 of the Freedom of Information and

Protection of Privacy Act, sections 27, 28(b) except paragraph (c) of the definition of ''head", 28(d) and (e) and thatpartof28(f)

that enacts the def!nition of "prosecution", 28(g) except paragraph (c) of the definttion of "public body", 29,31 and 33 in

fora October 4, 1993

Public Service Act, S.B.C. 1993, c.66, First Reading Bill Number 66, provides for the repeal of the Pub­lic Service Act, S.B.C. 1985, c.l5, establishes the Public Service Employee Relations Commission, sets out provisions relating to deputy ministers and others and makes consequential amendments to several acts.

Act, except the definitions "appeal board" and "auxiliary employee" in section 1(1), sections 6(c), 8 -11 t~nd 16 -20 in force

September 16, 1993; repealin§ the Public Service Act, except the definition "commission' in section 1(1) and sections 5-11, effective September 16, 1993 (Note: section 4.1 of the Public

Service Act repealed and sections 13 and 26 of the Act in force November 5, 1991)

Residential Tenancy Amendment Act, 1993, S.B.C. 1993, c.68, First Reading Bill Number 67, amends the Residential Tenancy Act, S.B.C. 1984, c.15, as to

(a) s.29, which permits a landlord to termi­nate a tenancy to allow for landlord use, re­quiring the landlord to have all permits and approvals needed to demolish, convert or renovate the premises before giving notice of termination, removing references to a mini­mum notice period for a change of land use of a manufactured horne pad in accordance with municipal planning requirements, and chang­ing the minimum notice period for ending a tenancy of a manufactured horne pad from 6 months to 12 months, and

(b) s.30, clarifying that a tenant's moving ex-

Legislative Update( continued)

penses must be paid in all cases of demoli­tion or change of use and deleting references to moving expenses for manufactured home pads, which are dealt with in s.29.

sections 11 and 12 of the Act in force September 9, 1993

Forest Amendment Act (No.3), 1993, S.B.C. 1993, c.45, First Reading Bill Number 69, amends the Forest Act, R.S.B.C. 1979, c.140, adding Division 3.1 "Forest Licence and Timber Sale Licence Area Restrictions", broadening the provisions in s.SO which allow the minister to cancel an agreement in certain cases, and allowing temporary reduc­tions in the rate of harvesting with the licensee's consent.

Act, except section 5, in force September 22, 1993

Pacific Racing Association Act, S.B.C. 1993, c.60, First Reading Bill Number 74, establishes the Pa­cific Racing Association whose purpose is to en­sure that horse racing facilities are maintained, improved and operated in the province.

in force August 24, 1993

Engineers and Geoscientists Amendment Act, 1993, S.B.C. 1993, c.43, First Reading Bill Number 77, amends the Engineers and Geoscientists Act, R.S.B.C. 1979, c.109, reorganizing the council of the Association to provide for an increased number of lay members, providing for profes­sional corporations, expanding the supervisory and disciplinary powers of the Association and providing for the issuance of a limited licence to practice.

in force September 9, 1993

Public Sector Employers Act, S.B.C. 1993, c.65, First Reading Bill Number 78, establishes the Public Sector Employers' Council and requires that an employers' association be established for each sector other than the public service sector. An employers' association may become the ac­credited bargaining agent for its members.

sections 1 -15 of the Act in force September 16, 1993

REGULATIONS TO NOTE

Court Rules Act, B.C. Reg. 221/90, the Supreme Court Rules are amended as to Rule 37(2), to pro­vide that a party may deliver to another party an offer to settle any claim in a proceeding, not lim­ited to a claim made by the party delivering the offer.

B.C. Reg. 275/93 effective August 19, 1993

9

Employment Standards Act, B.C. Reg. 37/81, the Employment Standards Act Regulation is amended to provide that Part 5 of the Act, deal­ing with termination of employment, does not apply to employees covered by a collective agree­ment.

B.C. Reg. 276/93 effective August 19, 1993

Residential Tenancy Act, B.C. Reg. 26/81, the Residential Tenancy Act Regulation is amended to provide that the maximum amount of moving expenses payable by the landlord pursuant to s.29(8) of the Act is $10,000.

B.C. Reg. 313/93 effective September 9, 1993

Manufactured Home Act, B.C. Reg. 51/78, the Manufactured Home Regulation is amended by repealing s.25.1, which required that the registrar issue a certificate containing information in re­spect of a registered security instrument. As of October 1, 1993, all security instruments relating to manufactured homes should be registered at the Personal Property Registry.

B.C. Reg. 309/93 effective October 1, 1993

Freedom of Information and Protection of Priva­cy Act, B.C. Reg. 324/93 is made, making chang­es to Schedule 2 to the Act, which sets out the public bodies to whom the Act applies, and B.C. Reg. 323/93, the Freedom of Information and Protection of Privacy Regulation is made, provid­ing for oral requests for information in certain cases, prescribing who can act for others in re­spect of information, setting out definitions for anthropological and heritage value, dealing with disclosure of health care information in certain cases, prescribing the form of consent to be given by an individual to disclosure of personal infor­mation and prescribing maximum fees for servic­es.

effective October4, 1993

REPORT AVAILABLE The Legislation and Law Reform Committee has received a copy of the following report from the B.C. government. Information may be obtained from the noted source or from Ann McLean, B.C. Branch Legislation and Law Reform Officer, in Victoria (370-2234).

Report

The Response of the Ministry of Attorney General to the Recommendations in the Law Society Report on Gender Bias

Source

Ministry of Attorney General (356-0727 or 660-2400)

10

Access to vehicle records

The Motor Vehicle Branch pro­vides access to vehicle records to allow for searches by the public. The enactment of the Freedom of Information and Pro-­tection of Privacy Act effective Oct. 4, 1993, may change this policy.

The government's concern is to protect personal privacy in ac­cordance with the Act. Steven Rumsey, the Assistant Deputy Minister of the Motor Vehicle Branch has advised that the

Branch will be consulting with interested parties to develop a new policy regarding access to vehicle records which will com­ply with the Act.

The Canadian Bar Association (B.C. Branch) has been invited to participate through its Free­dom of Information and Protec­tion of Privacy Committee chaired by Susan Fraser of Ed­wards, Kenny and Bray. The new policy is anticipated to be in place by the beginning of 1994. IJ

Section Talk (contlnued from page 5)

Non-resident vendor tax collection under Section 116 of the Income Tax Act

Ed Kroft gave an overview of the non-resident vendor tax col­lection under section 115 of the Income Tax Act in a recent meeting of the Vancouver Real Property Section. He concen­trated on those aspects of sec..: tion 116 which concern sales of real estate and shares of Cana­dian private companies.

The tax applies any time a non­resident is a vendor, even if the purchaser is also a non-resi­dent. When selling shares, no tax trust relief is available. The shares still attract Canadian tax where more than 50% of the as­sets in the company are real · property.

There are a number of tax trea­ties which provide exemptions from the tax. If your client wishes to rely on an exemption the specific tax treaty relied on must be specified in the appli­cation form. It takes four to six weeks to obtain a section 116 certificate and another 30 days if the exemption arises from a tax treaty. If rent was paid dur­ing ownership of the property,

Revenue Canada requires even more time to verify that tax was paid on the rent.

If the vendor fails to obtain a section 116 certificate the pur­chaser will be liable for tax ow­ing. If the assets sold are land the purchaser will be liable for up to one-third of the purchase price to the extent of the amount owed.

It is difficult to determine whether the one-third or the one-half rule applies. There is no way to be certain whether a vendor is selling capital proper­ty or fully taxable property. Be­cause a statutory declaration does not provide protection to the purchaser, it is common to holdback 50% of the purchase price. Promises from the ven­dor will not save the purchaser. A statutory declaration that the vendor is not a non-resident is sufficient protection. However, a statutory declaration saying that the property of the non-res­ident is capital property and not inventory is insufficient. Section 116 is also applicable.

The vendor still needs to file an income tax return even if a sec­tion 116 certificate is obtained. Often a greater amount was re­mitted than actually owing for

Catherine Greenall (centre), chair of the General Practitioners (Lower Milinland) Section, volunteers for the "hot seat interview" during the recent media training session held for Branch Section chairs. Leading the Seminar were Della Smith (right) of PJS Communications and Bob Spence (seated) of Media Wise. The Seminar focused on "what makes news," interview tips, and interview question types and techniques to forward your message.

Revenue Canada is becoming aggressive in auditing the sta­tus of residents. The vendor must be a resident of Canada at the time of the disposition in or­der to avoid non-resident ven­dor tax. For example, if a ven­dor is transferred, lists his or her property for sale and is a non-resident when the contract of purchase and sale is execut­ed, there is a need for section 116 compliance.

Because of the delays in obtain­ing a section 116 certificate, it is often impossible to have the certificate prior to closing. Nor­mally, the purchaser will hold­back until the certificate is ob­tained. During the time the money is accruing interest and normally that interest is for the benefit of the vendor. If the vendor is a non-resident, with­holding tax will apply to the in­terest. To deal with this prob­lem it is common to place the money in government securities which are exempt from with­holding tax.IJ

11

Public affairs and notaries focus of AGM resolutions

Two resolutions were presented to the members at the Sept. 10, 1993 Annual Meeting.

Members supported the resolu­tion calling for the B.C. Branch to become pro-active with re­spect to greater communication between lawyers and the gener­al public and to make this a first priority.

A second resolution directs the B.C. Branch Notaries Commit­tee to pursue and present to CBA members an aggressive plan to address the public inter­est and the interests of the members regarding Notaries Public.C

CORE, ICBC present· ations to Council highlight first meeting

Provincial Council, comprised of both elected members, Section Chairs and ex-officio members, met on Sept. 11 to begin the 1993 I 94 program year. Led by B.C. Branch President Parker MacCa­rthy, the full day agenda includ­ed an address by National CBA President Cecilia Johnstone, Q.C., and Alberta Branch President Jack Dunphy.

Secretary-Treasurer John Wad­dell reported on the B.C. Branch budget and noted that the Execu­tive is considering the impact of the WCB amendments, increased Section and Committee activity, and amortization of office reno­vations and the effect these will have on the 1993/94 budget.

Guest Speaker

Steve Owen provided a compre­hensive review of the mandate and activities of the Commission on Resources and Environment (CORE). During his remarks, he noted that the courts may be in­appropriate venues to decide large, multi-party disputes. He suggested that dispute resolution

to reach consensus may be a bet­ter approach than adjudication.

Bencher's Report

Warren Wilson reported that the Law Society completed a govern­ance retreat and will be consider­ing the recommendations of the retreat. He noted that a special referendum will be sent to mem­bers regarding changes to the Le­gal Profession Act that wouldallowtheLaw Society to make some regulation changes rather than the cur­rent process of hav­ing the government revise the legislation.

vision had been supported but that the CBA had opposed aboli­tion of court order interest but this was brought in to effect any­way. As well, early disclosure was changed to a maximum of 60 days. Yule reported that ICBC had drawn down all its reserves and has mandate to get ICBC premiums into line with cost of living increases only. Yule noted

He also reported on the new non-practic­ing fee category in­cluding anticipated requirements de­pendent upon the number of years that a member has been on leave from the profession. The new category will be ef­fectiveonJan.1, 1994.

Wilson also referred members to the new Rule 835 on payment of fees and related taxes and specifical­ly referred to 835(3)

Russell W. Lusk, Q.C., (right) was honoured with the third annual President's Medal from 1992/93 B. C. Branch President Rob Gourlay. Russell Lusk was B.C. Branch President in 1989/90 and is currently one of three B.C. Branch representative on the National CBA Executive. Most recentlY., Lusk chaired the National CBA Task Force on Conflict oflnterest Disqualification: Martin v. Gray and Screening Methods. The President's Medlll is awarded annually to a B.C. Branch member who has made an outstanding contribution to the profession.

where a member "must not take fees and related taxes from trust funds where the member knows or ought to know that the client disputes the right of the member to receive payment from trust funds."

Council raised a number of ques­tions about this new rule and urged the Law Society to review the effect of the rule in practice.

Fair Auto Compensation

Don Yule, chair of the B.C. Branch Fair Auto Compensation Com­mittee, reviewed the Branch's responses to ICBC's several initi­atives to reduce its deficit. He noted that collateral benefits re-

that an ICBC report concludes that since 1986 there has been an increase in the number of bodily injury claims per accident; there are more non-permanent soft-tis­sue injuries; and inter-spousal law suits have increased overall costs. ICBC also reports that lawyer's advertising may have had an ef­fect on claims.

Yule reported that ICBC has be­gun a "road sense" program to help reduce the number and se­verity of accidents and may be considering a "graduated" licens­ing program. ICBC is reducing claims handling and administra­tive costs and is stepping up its

Please turn to page 13

12

Product of the Month:

Business travel experts endorsed by B.C. Branch

American Express Business Travel, endorsed by the B.C. Branch Member Services Com­mittee, provides a range of busi­ness and personal travel services. Benefits include:

• Complimentary ticket deliv ery;

• $150,000 airflight and com­mon carrier accident insur­ance;

• Worldwide Customer Care and 24 hour emergehcy service;

• Low corporate hotel and car rental rates;

• No service fee on Ameri­can Express traveller's cheques;

• Discount on inclusive packages with selected preferred tour companies;

• Assured hotel reservations

November 25, 1993 Law Courts Inn, Vancouver

Mark your calendar to attend. The B.C. Branch second annual Georges A. Goyer, O.C., Memorial Award

tor Distinguished Service will be presented.

(when charged to any credit card number);

• Business Traveller Profile to ensure your travel prefer­ences are met.

For reservations or information, call:

American Express Business Travel at 687-5847

(members outside the Lower Mainland can call collect.)

American Express Business Trav­el services are outlined in the fly-

er included with this BarTalk is­sue. IJ

Dates to Note: November 25 Bench and Bar Dinner Law Courts Inn

December 4 Provincial Council Meeting Vancouver

February 18 to 21, 1994 National CBA Mid-Winter Meeting, Jasper Alberta

Schick treatment for chemical dependency

When first learning to drive, a great deal of concentration is required. Actions and reactions are slow. With practice these responses are speeded up. the subconscious mind is now learning a new "habit." With alcohol and drug habits (addic­tions), matters are complicated by the fact that some people in­herit an innate susceptibility to alcohol or other drugs which is akin to an allergy to food or an idiosyncrasy to a drug. What­ever the reason for the addic­tion, its compulsive urge ema­nates from the subconscious memory.

The Schick inpatient program works to change the subcon­scious memory programing that causes a patient to crave alcohol or other drugs. It is a physio­logical fact that the memory re­mains programmed until some-

thing changes it. that change takes place for the patient with counterconditioning. Schick has been using this same basic method since it was developed by Charles Shadel in 1935.

Many people cannot under­stand how a treatment of only ten days, plus two more visits of two days each, can possibly be effective against well in­grained addictions. With coun­terconditioning it is not a mat­ter of time. The change occurs rapidly and predictably. After the first session the patient doesn't like the habit as much. In the middle of the treatment, the desire toward the drug(s) of choice is about neutral. After completion of treatment both the conscious mind and the subconscious memory have joined in a distaste for the habit. The entire panoply of psycho-

logical issues that accompany addictive behaviour are recog­nized and treated. The counsel­Bing services department of the hospital is staffed by registered professional chemical depend­ency counsellors. It is their job to orient patients toward per­manent sobriety. A two-year _ aftercare followup is a standard part of the program. When the patient leaves the hospital, craving is left behind. this is perhaps the most important tool the patient will possess to maintain permanent and com­fortable sobriety.

For decades now, lawyers from British Columbia have been successfully treated at Seattle's Schick Shadel Hospital. If you wish more information on this highly successful treatment pro­gram, please call an Admissions Counsellor at 1-800-272-8464. IJ

13

Legal info on sexual harassment, leaves and common-law relationships now available on Dial-A-Law service

Six new tapes have been added to the Dial-A-Law system. As well, Cheryl Stephens, the Dial­A-Law script editor, has re­viewed many of the existing scripts for plain language and has separated many of the exist­ing tapes to enable callers to fo­cus on specific legal informa­tion.

New tapes recently added in­clude:

Gender fairness in the workplace

The B.C. Branch Gender Equali­ty Implementation Committee has purchased the video "Get­ting to the Fine Points: Gender Fairness in the Workplace."

The video, produced by the Minnesota State Bar in 1992, in­cludes a guide to assist discus­sion about gender stereotypes, mentors, exclusionary behavior, and balancing work and family. The video's focus is lawyers and law firm management poli­cies.

Call Fiona Watson at the B.C. Branch office (687-3404) if you would like to borrow the video to review it and screen it at your firm. [I

Registry closes

The Richmond Supreme Court (Family) Filing Registry closed effective October 1, 1993. All inquiries on files that were han­dled by the Richmond Supreme Court Registry, copies of or­ders, etc., should be directed to the Law Courts, 800 Smithe St, Vancouver. [I

Correction: The June issue of &rTillk should have read Vol. 5, No. 5 and the July/ August &rTalk issue should have read Vol. 5, No. 6.

• Employment Discrimina- ships: What Happens tion: Sexual Harassment When You Separate? Tape Tape 271 362

• Maternity and Parental • Common Law Relation-Leaves Tape 286 ships: What Happens

• Being a Witness Tape 210 When Your Partner Dies? Tape 363

• Common Law Relation- Tapes can be accessed from touch ships: Your Income and tone phones 24 hours a day. Call Property Rights Tape 361 687-4680 or toll-free 1-800-565-

• Common Law Relation- LAWS.IJ

Provincial Council highlights (continued from page 9)

anti-fraud, anti-theft programs. He noted that ICBC is looking at its "product" which likely will include some type of "threshold no-fault." Yule explained that this model would require that a claim has to be sufficiently seri­ous to sue in tort and that claims below a certain dollar-value would have no right to litigate. He noted that in some jurisdic­tions the threshold is a medical claim or a simple dollar-value claim. Yule believes ICBC wants the current tort system to work but if it cannot, then alternate models may be implemented.

Yule invites the Bar to comment on possible changes to the tort system or to express its opinion that any type of "no-fault" sys­tem would not be acceptable.

Winter Convention in Jasper

All members are invited to at­tend the National CBA Mid Win­ter in Jasper from Feb. 18 to 21, 1994.

Communications Committee

Kerry-Lynne Findlay will chair the 1993/94 Communications Committee and reported that the resolution passed at the Annual Meeting will be referred to the Committee who will look at ways to facilitate communication be­tween members and the public.

New Section approved

Council approved forming the Criminal Justice (Nanaimo) Sec­tion that brings the total number of B.C. Sections to 55.

Local and County Bar Liaison

Executive Committee member Michael Brecknell will be co­chairing this committee with Therese Alexander. He encour­ages all members to talk to either elected Council members or Lo­cal and County Bar presidents on issues of concern.

Vancouver Bar Association

President Brad Chapman remind­ed Council that the Vancouver Bar Association manages the ar­ticling interview and .selection process that is managed on a com­puter-based ranking system but that some law firms continue to interview and recruit at various times throughout the year.

He reported that the VBA has committed $15,000 over three years to the new Women and the Law Chair at UBC. He added that the VBAsupported Law Day, the B.C. Courthouse Library an­niversary, the B.C. Branch PST challenge and provides bursaries to both UVIC and UBC. IJ

14

Five informative seminars on spending, savings and investing FINSCO Mutual Funds, through the CBA Retirement and Savings Program, is invit­ing CBA members and related parties to attend a series of fi­nancial well-being seminars. Led by experts, these informa­tive two-hour evening seminars allow CBA members to learn and ask questions about all as­pects of their financial matters. Seminar topics include:

Jarislowsky, Fraser on fue Markets: November 16 Explores the investment out­look, government debt levels, impact of NAFfA, the kinds of investments apt to do well in Canada, and economic recov­ery.

WCB Act Amendments (continued from page 1)

of the staff from full insurance coverage, partners will reduce their group number but the pre­miums likely will reflect this decreased spreading of the risk.

Those employers who are cov­ered under WCB will be also subject to Occupational Health and Safety standards and offic­es may now be inspected and orders given as to office health and safety standards. For law offices, this will likely centre around lighting and ergonom­ics. If there are complaints re­garding health or safety, an in­spection will take place.

The CBA is actively dealing with these amendments and is planning to make submissions to request a new rate category for law firms that will more properly reflect the low risk which in tum would result in much lower assesment rates charged to law firms. EJ

Articling committee seeks law firm comments The UBC Articling Committee is looking for means to improve

Hill Samuel on Global Investing: November 22 Learn why foreign investments are advantageous, explore op­portunities, and find out how to build in global investments as part of RRSPs.

Personal Tax Planning: No­vember30 Focus on reducing your tax bill, using all available deductions and credits, making capital gains and losses work to your advantage, and reducing taxes when close to retirement.

Personal Retirement Planning: November 24 Especially for those 35-55 who want to ensure they have suffi-

their relationship with firms out­side the Lower Mainland. With the stress and cost of living in the Lower Mainland, many students want to move out of Vancouver andintosmallercommunities. As a result, more law firm participa­tion is required for articling stu­dents and summer students.

Christy Phillips, B.C. Represent­ative on the Committee, or Bob Reid, Assistant Dean, would ap­preciate your suggestions or com­ments on how to enhance the Committee's work with firm out­side the Lower Mainland.

A questionnaire will be sent out to law firms and follow-up tele­phone calls will be made to deter­mine firms with articling posi­tions this year. If you are looking for an articling student, or have any comments you'd like to make, you can contact Assistant Dean Reid at 822-3435 or Christy Phil­lips at 822-5257. EJ

VSE governor retires

Norman Severide, Q.C., has stepped down from the Board of Governors of the Vancouver Stock Exchange, effective Au­gust 19. Mr. Severide was orig­inally elected to the board in

cient retirement income to maintain a comfortable lifestyle. Find out more about RRSP strategies, income splitting, RRIFs vs. Annuities, and chang­ing pension regulations.

Personal Financial Planning: December 7 Focuses on spreading invest­ment dollars among different kinds of investments, borrow­ing, calculating net worth, and estate planning.

The enclosed flyer in this Bar­Talk issue provides information on advance registration infor­mation or call FINSCO at 1-800-563-6623. EJ

May 1990 and was recently rec­ognized by the VSE for his work on behalf of the Vancou­ver Stock Exchange. C

BarTillkis published by the British Columbia Branch of the Canadian Bar Association, 10th Floor- 845 Cambie Street Vancouver, B.C. V6B 51'3 Tel: (604) 687-3404 FAX: 669-9601

Editor: LArry Hnetka, Communications Director 687-3404 Legislation and Law Reform Officer: Ann McLean (Victoria) 598-2860 SectionTtllk Editor: Shelley Bentley, Melville & Yeung 685-3881

Alistair Eagle Photography (688-8867) is the CBA (B.C. Branch) official photographer.

@Copyright the British Columbia Branch of the Canadian Bar Asso­dation-1993.

The B.C. Branch of the Gmadian Bar Association represents troer 7,500 law­yers within British Columbia. The B.C. Branch is dedicated to improue and pro­mote access to justice, to review legisla­tion, initiate law reform meRSun:s and advance and improue the administra­tion of justice. On behlllf of the profes­sion, the B.C. Branch works to improue and promote knowledge, skills, ethical standards and well-being of members of the leglll profession and promotes the

interests of its members. ll