Published by Law Courts Center JULY / AUGUST 2015

Like a breath of freshair, last July 17,2015, the Supreme

Court of BC posted thisnotice on its site:

The Supreme Court of BritishColumbia has an opening forthe position of Master. Theposition is in Kelowna.Interested applicants should submit a resume and coverletter in accordance with theposting instructions by July31, 2015.

What is a master?In the SCBC, depending onthe matter, court hearingsmay be held before a masteror a judge. What masters canand cannot hear is set out inPractice Direction PD-42found on the court website.

Judges can hear all courthearings, while masters arelimited to applications andsome final orders (i.e. certaintypes of judgments). There

are 13 masters of the SCBC.They can hear most interlocutory (interim) matters, but they cannot givea final judgment.

Why this was a good moveThe recent elevation ofJustice Young from her posi-tion as master would havegiven need to replace her.

Court watchers, like me,have gotten used to the practice of seeing a signed Order in Councilannouncing the appointmentof a new master. That is,until I chanced upon thenotice on the court website.Having gone through itsmaterials, I concluded thatthere are three good thingsabout it: transparency, accessto justice and diversity.

TransparencyThe posting included a sevenpage description of what a

master does, a list of qualifi-cations, and requisite specialskills have now provided the profession andthe public with clarity.

Access to JusticeThe inclusion of this requirement was equallynoteworthy: “A Master mustmanage a busy chambers andthe expectations of the mem-bers of the bar and self-represented litigants in afair, firm and balanced way,taking into account access tojustice concerns.”

Frank Kraemer,QC the executive director and seniorcounsel of the SCBCexplained to me the reference of access to justice issues vis a vis self-represented litigants:“It's been a reality for sometime; however, this may be the first time we havearticulated it in a posting.”

DiversityAs the posting was donethrough the BC PublicService, consideration todiversity and inclusion wasrecognized as well. Readerswere invited to read BC PS'sposition on diversity. I expectequity-seeking groups tohave taken advantage of this openness to submit theircandidates.

Capacity postings areencouraging, and its potential development intobecoming the practice forfilling open master positionsis equally promising. !

Dom C. Bautista is the executive director of LawCourts Center. He returns toco-teach Civil Litigation 102on September 24/25 with hisfresh research to what hasbeen a busy summer for ourcourts.

w w w . l a w c o u r t s c e n t e r . c o mSeptember 2 Amici Curiae Paralegal Program Open HouseSeptember 9 Trust Accounting 102 (Live Webinar)September 10 Tax on Legal Services 101 /102September 11 Managing MVA Files 103September 15 Lecture: Working With Women Who

Experience Violence Part 1September 24/25 Civil Litigation 102October 2 Annual Paralegal & Support Staff ConferenceOctober 13 Lecture: Working With Women Who

Experience Violence Part 2October 21 Part 7 Benefits 101October 22 Medico Legal Terminologies 101October 27 Diversity Dialogues: Practicing & Parenting

Why Posting the Job for a SCBC Master Was a Good Move

You can’t plead cute but you can send your staff to the October 2 2015 Annual Paralegal & Support Staff Conference

Register at: www.lawcourtscenter.comLaw Courts Center150 - 840 Howe Street, Vancouver BC Canada V6Z 2L2 1508 B!

Judicial interpretation on the concept of proportionalityProportionality. Considered the spirit of the current SupremeCourt of BC’s Rules of Court, what does it mean? Which bringsus to this case brief we once wrote about:

Piso v. Thompson arose out of a motor vehicle accidentthat occurred on October 5, 2003. Prosecution of this filemoved very slowly until May 2010 at which time

defence counsel served a Notice to Admit on the plaintiff. Theplaintiff failed to respond to the Notice to Admit resulting in hisadmittance of the facts. As a result, the plaintiff brought anapplication for an order allowing him to withdraw the deemedadmission of facts. The application was heard on November 24,2010 in front of Master Caldwell, who gave his reasons onDecember 6, 2010.

In his reasons, Master Caldwell noted that Rule 7-7 makes theNotice to Admit available to, “increase efficiency in the conductof cases and to deal with matters that are not contentious andshould be admitted.” Defence counsel submitted that his intentin serving the Notice to Admit was just that: to narrow theissues or at least bring them to a head in order to move the filealong.

The Notice to Admit sought to have the plaintiff admit fourthings:

• that he was involved in a motor vehicle accident onOctober 3, 2003;• that his injuries resolved by October 2005;• that he suffered no past wage loss as a result of theaccident; and• that he suffered no loss of capacity to earn income due tothe accident.

Rule 7-7(2) states that the truth of the fact or authenticity of adocument is deemed admitted unless the party in receipt of theNotice to Admit serves a written statement denying the truth ofthe fact or authenticity of the document within 14 days of beingserved with the Notice to Admit.

In this case, plaintiff’s counsel admitted that, upon receipt ofthe Notice to Admit, he put it in the file and forgot about it untildefence counsel served a notice of summary trial applicationseeking judgment on the basis of the deemed admissions.

These admissions had the potential to seriously impact theplaintiff’s claim. By admitting that his injuries were resolved byOctober 2005, two years post-accident, the plaintiff abandonedany argument that his injuries, pain, and suffering continuedlonger, thus potentially reducing the amount of his non-pecuniary damages award.

By admitting that he suffered no past wage loss or loss of

capacity to earn income due to the accident, the plaintiffeliminated two heads of damage entirely. 7-7(5) prevents aparty from withdrawing a deemed admission without leave ofthe court.

In support of his application, the plaintiff swore an affidavitstating that he never knew of the Notice to Admit; and, if hedid, he would have admitted to being in the accident but deniedthe remaining assertions.

Both counsels and the court agreed that the tests to be appliedin an application to withdraw deemed admissions are asfollows:

• Was the admission made inadvertently or hastily?• Has there been a delay in bringing the application towithdraw the admission?• Is there any issue worthy of being tried?

That all three requirements were met in this case was neverseriously disputed by the parties. Defence counsel argued thatthis is precisely the type of situation which the “deemedadmission Rule” was intended to cover and to refuse to applythe Rule would be to render it virtually useless. Defencecounsel further argued that there was no prejudice to theplaintiff in allowing the admissions to stand since the plaintiffhad recourse against his original counsel in that he could bringan action against his original counsel for professionalnegligence in not properly responding to the Notice to Admit.

Master Caldwell granted the plaintiff leave to withdraw theadmissions stating, “Rule 7-7 does not, nor was it intended to,create a trap or add an inescapable obstacle to ensnare or tripup sloppy or inattentive counsel to the detriment of the partiesto the litigation.”

Master Caldwell found that refusing to allow leave to withdrawthe admissions would deny the plaintiff his opportunity to havehis claim heard on the merits. In response to defence counsel’sargument that the plaintiff had recourse against his previouscounsel Master Caldwell cited Rule 1-3(a) which sets out theobjective of the Supreme Court Civil Rules, which, for a longtime, has been to secure the just, speedy and inexpensivedetermination of every proceeding on its merits. In essence,Master Caldwell concluded that to refuse leave to withdraw theadmissions would force the plaintiff to bring an action againsthis previous counsel to recover the same relief as in the case atbar and to do so would be to, “[fail] to recognize further delayand expense of such a claim. Ultimately, Master Caldwellrecognized that a second action would be a waste of the court’sresources as well as the time and money of the parties involved.

To learn more, join us on September 24 and 25, 2015. !

This two day program is designed for juniors to gain an understanding of the civillitigation process and its Rules. At the end of their studies, the attendees will be able

to put the theory into practice and they will have the tools to successfully assist in a civillitigation file from start to finish.

“The explanations made a difference. It is easier to have someone with

so much experience lay it all out rather than just reading the Rules.”

COURSE PREREQUISITEThere is pre-course work that will be assigned.

COURSE REPORTING FOR CPD

For those with CPD requirements, this course is 14.0 hours long with 1 hourdevoted to ethics, professional responsibility, ethics, client care and relations. If you meet 70% of the course expectations, a Certificate of Completion is issuedto you.

LOCATION Law Courts Center CPD Room 840 Howe St #150 Vancouver BC

INSTRUCTOR Yvonne Choi, Legal Assistant, Harris & Company LLP

RESERVATIONS Please complete the form below and return to: Law Courts Center,Legal Education Program, 150 - 840 Howe Street, Vancouver, BC V6Z 2L2.Make cheques payable to Law Courts Center.

For more information please email <dom@lawcourtscenter.com>, or call604-685-2727.

For junior lawyers, solos,paralegals and legal secretaries!

A TWO DAY COURSE: SEPTEMBER 24 AND 25, 2015 (9:00 AM TO 5:00 PM)

Law Courts Center

Civil Litigation 102

““Let me showyou how thedifferent parts ofcivil litigation areconnected! ”

Course Fees: (course materials and GST included) - Single Seat $924.00

- Multi-seat & Accredited Group Rate (Amici Curiae & Greater Vancouver Legal Nurse Consultant Association) $872.55

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

Registration:

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0150

7/08

In preparation for the newAmici Curiae TemporaryForeign Workers

Uncontested Divorce clinic,Jessie Sihota and ChristineGordon, Deputy DistrictRegistrars from theVancouver Law CourtsFamily Registry presentedDo and Don’ts When FlingOrders last May 12, 2015.

General InformationAn Order is a ruling or decision of the court

The court can make variousorders at different stages in afamily action, from beforean action has even started allthe way to after a trial hasbeen completed.

A court order is a rulingmade by the court commanding a party to dosomething (e.g. “A pays thechildren of A & B $500each month as child supportbeginning on Jan. 1, 2015”).It can also prohibit a party

from doing something (e.g. “X shall not contact Z without prior written consent”).

Setting out the Order inwriting and filing it incourtAfter a court makes anorder, a party (usually the party who wins theapplication or the trial) willfile an Order (see AppendixA) at the registry. TheOrder must be set out inwriting using the correctform. It is then submittedto the registrar. All familyorders are checked by theregistry and must be signedoff by the adjudicator. Theregistrar will make sure thatthe Order is complete andthe terms are accuratebefore sending it to thejudge or master forapproval. Once it isapproved, the Order will beissued and entered.

Practice Direction 26

(“PD26”) provides directionin relation to aspects of theprocess for entry of orders.

It is important to note thatan Order becomes bindingon the affected parties assoon as it is pronounced bya judge or master (i.e.before the Order is issuedand entered). However, forthe court to enforce theOrder, an Order must beissued and entered. If aparty believes that anotherparty is acting contrary toan Order, that party canenforce the terms of theOrder by bringing an application to the court and proving that party is incontempt of court. If thecourt finds a party in breachof the terms of the Order,the court can make an Orderto fine or incarcerate theparty in contempt.

An Order must be issuedand entered before a partycan appeal it. !

Amici Curiae volunteerJimelle Gallagher helped prepare this article. We wishher well as she begins herarticles on September 2015.

Family Law Orders Do’s and Don’ts (Vancouver Registry)

2 F A M I L Y L I T I G A T I O N S T U D I E S

Table of Contents:A. Essential components ofan Order B. Types of Orders C. Judicial CaseConference Orders D. Other documents E. Processing time forOrdersF. Top 11 Reasons whyOrders are rejectedAppendix A Sample Order Appendix B Handouts

Exhibit Stamp self inking $55

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A Commissioner for taking Affidavitswithin British Columbia

Family OrdersVancouver RegistryMonograph $ 83.25

Family OrdersVancouverRegistryMonograph

Family ChambersApplication Procedures$ 246.75

Family ChambersApplicationProcedures

Trial Preparation forFamily Law $ 246.75

Trial Preparationfor Family LawMonograph

Family Law 102 $ 246.75

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Joint Retainers and Undivided Loyalty — A Primer

Trying to understand the role ofICBC in an insurance claim canstill be a mystery specially for

new staff being asked to handle MVAclaims. And in BC, the tripartiterelationship is certainly a unique one,specially when a defence lawyer acts fortwo or more clients involved in the sameincident. Usually, the most cost effectivedecision for the insurance company isfor each defendant to give his or herconsent to retain a single lawyer. Thejoint retainer is shared between theinsurance company and the defendants.Although not common practice, alawyer may represent two plaintiffs; thedriver/owner and the passenger.

One of the important concepts we teachin class is that even though a jointretainer exists, a lawyer should still beacting in the best interests of bothclients. What happens when conflicts ofinterest arise? Where is the duty ofloyalty?

In most motor vehicle accident (MVA)actions, it is common practice for adefence lawyer to act for two or moreclients. Usually, the most cost effectivedecision for the insurance company isfor each defendant to give his or herconsent to retain a single lawyer. Thejoint retainer is shared between theinsurance company and the defendants.Although not common practice, alawyer may represent two plaintiffs; thedriver/owner and the passenger. Eventhough a joint retainer exists, a lawyershould still be acting in the best interestsof both clients.

Even after the initial conflict checks arecompleted, additional conflicts may yetarise. For instance, two people (anowner/driver and a passenger) mayretain a single lawyer, but if thepassenger subsequently names theowner/driver as a defendant, the lawyerwill not represent both parties. This isthe simplest example of a conflict of

interest. However, if the owner/driver isnot named as a defendant, a lawyer mayact for both plaintiffs in one action. Fordefence files, law firms need to ensurethat they have not acted against any ofthe defendants they have been retainedto represent.

It’s important to note that defendantsshare their lawyer with the InsuranceCorporation of British Columbia (ICBC)or the out-of-province insurer. The caseof Hopkins v. Wellington, 1999 CanLII5583 (BCSC), 1999 B.C.J. 1164, statesthe same duty is owed to the defendantby the lawyer as if they were retainedpersonally. Although ICBC hasappointed the lawyer, incurs bills andrecovers costs, the defendant is still theclient and is owed a duty of loyalty.

“Loyalty includes putting the client’sbusiness ahead of the lawyer’sbusiness,” states R. v. Neil, 2002 SCC70, [2002] 3 SCR 631 at para. 24.Chapter 6 of the Professional ConductHandbook states that lawyers have aduty of loyalty to every client, may actfor clients with opposing interests and,with consent, act for clients where“divided loyalties” may develop.Accordingly, lawyers should explain theconcept of undivided loyalty to clientsand obtain their express consent to actfor them where a conflict exists. TheHandbook, which has been replaced bythe BC Code of Professional Conductfor British Columbia, includescommentary #6 for Code 3.4-2 whichstates that implied consent is only forexceptional cases and may depend onthe legal knowledge of the client.

Following the test set out in MacdonaldEstate v. Martin, 1990 CanLII 32(SCC), [1990] 3 S.C.R. 1235, a lawyercannot act against his or her client,whether past or present, if they possessconfidential information that may beused against them in an action. Actingagainst a former client may allow the

other party to hold a clear advantage andaccess to personal and potentiallydamaging information. Performingconflict checks in your firm will limitthe possibility that you are actingagainst a former client. What action should be taken if thedefendant confides that they may havebeen driving their car for work errandswithout proper insurance? What if theclient has their learner’s licence andstates that they had driven the carwithout an adult passenger, or moredistressing, they had consumed alcoholbefore the accident?

A breach of insurance is usuallydetermined by ICBC before an action isstarted and a lawyer is appointed asdefence counsel. The lawyer may haveto withdraw as defence counsel and askthat ICBC appoint a new lawyer if thedefendant discloses prejudicialinformation. Moreover, the lawyer doesnot have to disclose the information oraction that lead to the conflict to ICBC.All parties to the action will becomeimmediately aware of the conflictshould the prejudicial information bedisclosed at an examination fordiscovery.

The same duty of loyalty is owed toboth plaintiffs and to defendants equally.While many firms act for two or moreclients in the same matter, it is importantto have written communication as wellas verbal contact with each client sothey are aware of the lawyer’s undividedloyalty. Conflict checks will also preventthe firm from acting against a formerclient, but the extent to which you actedfor that client may have to be assessed.Hence you may be able to act against aformer client if no confidentialinformation was obtained or they wereseeking advice on a separate matter. Forthat reason, understanding how anaction is commenced is key to managingyour accident files efficiently. !

WWW.LAWCOURTSCENTER.COM150-840 Howe Street, Vancouver, BC Canada V6Z 2L2

The current Rules of Court provide for a shorter time to get the pleadings ready. This is your

opportunity to master the mechanics of preparing your file binder, acquiring the needed

information in a timely manner, and initiating the chronologies of the claim; regardless of whether your

are acting for the plaintiff or defense. Acquire best practices from a seasoned paralegal. Learn to take

advantage of the Civil Rules of Court of the Supreme Court of BC.

Plus here are the other learning outcomes for this course:1. how to correctly calculate 6 different limitation periods associated with MVA files;2. what information goes into Part 1, Part and Part 3 of a “motor vehicle” Notice of Civil Claim;3. how to effectively utilize chronologies and treatment charts;4. how to make redactions for privilege and irrelevance to clinical records; and5. at least 5 best practices for preparing for a motor vehicle trial.

CONTINUING PROFESSIONAL DEVELOPMENT CPD REPORTINGFor the mandatory Law Society of BC reporting of CPD hours, this course is 7.0 hours with no hours devoted toprofessional responsibility and ethics. A Certificate of Completion is issued to you, if you earn at least 70% ofthe course requisites.

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

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

Registration:WWW.LAWCOURTSCENTER.COM

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

q Multi-seat or Amici Curiae Rate $521.36

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

1508 B!

SCHEDULE FOR SEPTEMBER 11, 2015 (9:00 AM TO 5:00 PM)Law Courts Center • Canadian Paralegal Institute

MVA STUDIES 103A FULL DAY OVERVIEW OF PERSONAL INJURY LITIGATION AND

THE KEY COMPONENTS TO PREPARING MVA FILES EFFICIENTLY

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

The work that the AmiciCuriae paralegals perform sometimes

involve immigration andhuman rights law. We foundthis recent case of be ofinterest: PN v. FR and another (No. 2), 2015BCHRT 60, a human rightsmatter involving a Filipinocaregiver.

FACTS

• PN is a young mother originally from thePhilippines and has two children. She was hiredthrough an employmentagency to work in therespondents’ home in HongKong as a housekeeper andcaregiver to the respondents’two children. She workedfor the respondents in HongKong for about a year andcame with them when theymoved to Canada to continueworking for them. Part ofher income was used to support her children who livein the Philippines.

• While in Canada, therespondents and PN stayed ata hotel until the family homepurchased in Richmond wasmade ready for them to occupy it. They arrived inRichmond on July 7, 2013.

• PN fled the hotel about sixweeks later.

• PN contacted the RCMPand eventually stayed at awomen’s shelter for victimsof human trafficking.

• An earlier decision in thisproceeding dismissed part ofthe complaint over eventsthat occurred outside ofCanada and was thereforeoutside the Tribunal’s juris-diction.

ISSUE

• PN complained that bothrespondents, FR and MR,have discriminated againsther on the basis of her sex,family status, age, race,ancestry, colour and place oforigin, contrary to section 13of the BC Human RightsCode.

FINDING

The respondents breached s.13 of the Code in their treat-ment of PN. Virtually everyaspect of her employment,including her contract, wasexploitation that amountedto discrimination. Therespondents were ordered to cease and refrain fromcontravening of the HumanRights Code. For lost wages(during her time in Canadabut not during the time after she fled) and injury todignity, PN was awarded$55,866.89.

3 H U M A N R I G H T S S T U D I E S

BC Human Rights Tribunal Rules on Discrimination and Injury to Dignity (1)REASONS

Grounds of discrimination

The Tribunal looked toRadek v. HendersonDevelopment (Canada) Ltd.,2005 BCHRT 302, to ana-lyze a case where multipleprotected grounds of dis-crimination intersected. Asin Radek, the Tribunal inthis case held that thegrounds of discrimination(race, colour, ancestry, fami-ly status, sex, age) cannot beseparated out and parsed onan individual basis becausethe complainant is an inte-grated person with charac-teristics protected under theHuman Rights Code. As thecomplainant’s expert opined,it is this combination ofcharacteristics that are pro-moted by the likes of theemployment agencydescribed below.

An expert report was sub-mitted to describe the stereo-types and prejudices ofFilipino workers, especiallyin Hong Kong. The experttestified that Filipino womenare perceived to be “natural-ly inclined” to performdomestic care work. Shealso said that it is widelydocumented that stereotypesand prejudices contribute toor exacerbate the exploita-tion or abuse of Filipinodomestic workers and thatemployment agencies actand perpetuate these stereo-types and prejudices.Employment agencies, suchas the one PN was hiredthrough, question Filipinoworkers about time manage-ment, curfew hours, physicalappearance with respect toclothing, hair, makeup, per-sonal hygiene and willing-

ness to move with theiremployers. These questionsfunctioned to propagate theperception that Filipinoworkers serve the whim oftheir employers. Theemployment agency that PNwas hired through soughtsimilar answers from PN.The Tribunal member foundthat the respondents’ expec-tation to have PN at theirbeck and call have theirroots in her hiring from thePhilippines and the factors inhiring emphasized youth,hard work, and unlikelinessto complain. These charac-teristics were attributed toFilipino workers by stereo-type and prejudice. Thisamounts to discriminationbased on age, race, ancestry,colour and place of origin.

The Tribunal member foundthat PN endured sexualassaults repeatedly at thehands of FR. The respon-dent FR did not deny that heengaged in the sexualassaults nor did he cross-examine PN on her evidenceabout the assaults. A coun-sellor at the shelter testified,and the Tribunal memberwas satisfied with the evi-dence given, that PN showedsigns and symptoms ofbeing traumatized. Whenasked by the Tribunal mem-ber to differentiate the harmPN suffered in Hong Kongand that of Canada, thecounsellor said that PN’scondition was more fragileas a result of what happenedin Hong Kong and thereforemore susceptible to harm. !

Sharon Allegrini’s case briefconcludes next month. She isa paralegal at Bull HousserTupper LLP.

B!201507/08

Supple leatherbrief cases perfect for chambers, mediations ortrials!

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Law Courts Center 150-840 Howe Street, Vancouver, BC Canada V6Z 2L2 1508

A lecture series devoted entirely to looking for ways to work with Self-Represented Litigants

The Face of a Self-Represented Litigant September 2, 2015 (ACL OH2015)As part of Amici Curiae’s Open House, we are hosting this lecture to paralegals who are curious about howparalegals assist self-represented litigants. Listen to a self-represented litigant speak of their experience.Hear a judge of the Supreme Court of BC speak about SRLs. Plus, our managers will talk about our fiveclinics. This is a free event for paralegals who have at least two years experience in litigation in BC.

Working with Women who Experience Violence Part 1: Understanding Power and ControlSeptember 15, 2015 (ACL BWSS1)Lecturers: Rosa Elena Artega, BWSS Manager of Direct Services and Clinical Practice and Vicky LawBWSS AdvocateThe purpose of this training would be to have a better understanding of the dynamics of power and controlin an abusive relationship. In addition to recognizing the importance of working from a decolonizing andintersectional framework, the training will also address systemic oppression. Tools and strategies will beexplored on how to work with women who experience violence in an anti-oppressive perspective.

CPD 1.5 hour including 1.5 hours for professional responsibility and client relations.

Working with Women who Experience Violence Part 2: Family Law & Affidavit WritingOctober 15, 2015 (ACL BWSS2)

Lecturers: Vicky Law BWSS Advocate and a family law counsel

The purpose of the second part of the training is to explore how the Family Law Act interprets “familyviolence”. The training will also speak to the importance of addressing family violence within a family lawmatter. In addition, the skills-based workshop will highlight tools on how to write affidavits with womenhave experienced violence.CPD 1.5 hour including 0 hours for professional responsibility and clientrelations.

British Columbia Civil Litigation GuideDESK REFERENCE MANUAL VERSION 9.1

PLUS MATERIALS ON WORKING WITH SELF-REPRESENTED LITIGANTS

How to order your copy (version 9)The cost of the BC Litigation Guide Desk Reference Manual is $750 plus GST and shipping.

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Table of Contents

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

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

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

What our subscriberssay about our manuals

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

The practice tipsare so helpful.

‘‘

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ABOUT THE AUTHORS

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

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

Managing Editor: Dom C. Bautista

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

Written in plain language

A focus on Self-Represented Litigants

Flowcharts that include the authority

Practice tips in every section

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

Organizing the Trial

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

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

1

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

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

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

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

W

New Civil Rules

Chambers Application Supplemental Flowchart

1. Applications taking more than 2 hours:

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

2. Short Notice Applications:

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

Specially designed charts and flowcharts designed tomake your work easier

Working with Self-Represented Litigants

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

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

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

negotiations, mediation, arbitration.

A

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

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

l That way the written communications can later ber

Appendix L.2 Fast Track Litigation Flowchart

Step Process Rule

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

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

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

S

by the p

British Columbia Civil Litigation GuideGeneral Table of Contents

Volume 1

Section A Introduction

Section B Systems

Section C Small Claims Court

Section D Limitation Periods, Service and Delivery

Section E Commencing a Proceeding

Section F Discovery Process

Section G Document Disclosure

Section H Chambers Application

i.1 BC Civil Litigation Guide

Volume 1 Table of Contents

British Columbia Civil Litigation GuideGeneral Table of Contents

Volume 2

Section I Trial Preparation

Section J Experts

Section K Summary Trials

Section L Fast Track Litigation

Section M Case Planning Conferences

Section N Trial Management Conferences

Section O Settlements

Section P Bills of Costs

Section Q Alternatives to Trial

Section R Judgments and Executions

i.2BC Civil Litigation Guide

Volume 1 Table of Contents

Legal Education

Trial Brief Preparation

Legal Printing & Legal Supplies

legalpresents.com

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

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

Law CourtsCenter840 Howe ST #150Vancouver V6Z 2L2

4 T R U S T R E G U L A T I O N S

There are many lessonsto be learned fromthe March 26 2015

Law Society of BC rulingagainst William Faminoffwho had to answer eightallegations of professionalmisconduct stemming fromhis having backdating statements of account andhaving improperly handledhis client's trust funds. Thesteps that Faminoff took tomitigate his situation isnotable, but here are thethree that I picked.

Lesson # 1 An egregiousact has no gradation.I like to say that theaccounting principle ofmateriality has no place intrust accounting. I now addthat there is no difference inbad act. The ruling ruled:[28] The Panel,

considering theRespondent’s misconduct ona global basis of all the allegations proven againsthim, does not agree thatthere is a qualitative difference in his actions that would lead to a conclu-sion that they should be considered less serious.

Lesson #3 A lawyer’s prior disciplinary recordcan increase their futuresanctions.Members should rememberthat their history of bad con-duct affects how hear panelreviews a complaint. In LawSociety of BC v. Batchelor,2013 LSBC 09 at para. 48:The Respondent’s prior disciplinary record is anaggravating factor thatrequires an increase in thesanction to be imposedbeyond the range of thesanctions imposed for simi-lar misconduct by memberswithout a disciplinary histo-ry. This increased sanctionwould be in accordance withthe principle of progressivediscipline, the need for spe-cific deterrence and the needto ensure public confidencein the legal profession.

In the case of Faminoff:[42] This is particularly

so when the Respondent’sprevious conduct, while notexactly the same, did involvefindings of false representa-tions and a failure to dis-close the true facts to hisfirm. Those findings weresimilar in nature to the find-ings of this Panel that theRespondent intentionallymisled the Law Society. It isalso an aggravating factorthat the Respondent has hadtwo similar findings againsthim during his career. !

Dom Bautista is co-presentingTrust Accounting 101 onSeptember 9, 2015; and Taxon Legal Services onSeptember 10, 2015.

Lesson #2 Assessing errorsgoes beyond the specificvictim.In Faminoff’s case, the victim was ICBC. The disciplinary panel found:[47] The Respondent’s

failure to comply with thetrust and accounting Rulesand breaches of undertak-ings did not involve misap-propriation of funds. Therewere no victims. Nor wasthere any misappropriationof funds in respect of theRespondent’s intentionalmisleading of the LawSociety in connection withthe compliance audit.

Nonetheless, in consideringthe law society’s mandate toprotect the public interest,[27] The Law Society

submits that, while theRespondent’s breaches ofundertakings did not resultin any losses to ICBC, the breaches were not anisolated incident, but ratheran ongoing course of con-duct suggesting a cavalierattitude toward undertak-ings on the part of theRespondent. It further submits that any breach ofan undertaking is a seriousmatter.

3 Important Lessons from the Law Society of BCSuspension of Mr Faminoff

B! 201507/08

On Twitter: @lccdombautista

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To Kill a Mockingbird Go Set a Watchman

Registration:WWW.LAWCOURTSCENTER.COM

Course Fees: (seminar materials and GST 128573300 included) q Single In-Person Seat (TLS 101) $288.75

q Single Webinar Seat License (TLS 102) $288.75

q Please send me the link to the recorded session as I am not able to attend. $288.75

1508 B!

These are learning outcomes for this half-day seminar1) recognize situations in which both GST and PST could apply;2) know how the GST/HST applies to disbursements before July 1, 2010, between July 1, 2010

and March 31, 2013, and after March 31, 2013;3) understand the basics of how the PST applies to purchases of legal services;4) understand how PST applies to fees, charges and disbursements;5) understand how legal services provided under contract is regulated by PST Exemption &

Refund Regulation s80;6) understand the division of legal services provided within and outside of BC based on the PST Act

sections 126 & 127;7) understand what GST and PST audit process is; and8) access tools and information to help your firm comply with GST/HST and PST.

Seminar agenda:10:00 CRA10:30 Ministry of Finance11:00 Break10:45 Developing best practices to be audit ready11:30 Q&A: joint panel12:45 Review

CONTINUING PROFESSIONAL DEVELOPMENT CPD REPORTINGThis course is an elective in Canadian Paralegal Institute’s Qualified Paralegal Program in Civil Litigation.For your mandatory reporting of CPD hours, this course is 2.75 hours with 2.75 hour devoted to professionalresponsibility and ethics, and client relations.

LOCATION Law Courts Center 150 - 840 Howe ST Vancouver BC V6Z 2L2INSTRUCTORS:

CANADA REVENUE AGENCY AND MINISTRY OF FINANCE

DOM BAUTISTA Law Courts Center Executive Director

SCHEDULE FOR SEPTEMBER 10, 2015 (10:00 AM TO 1 PM)IN-PERSON OR BY WEBINAR

Law Courts Center

Tax on Legal Services – GST and PST

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

PST and GST FAQs for BC Law Firms Having recently passed the first year on the return of PST in BC last April 1 2013, we have updated our tax FAQsmonograph originally published in May 10 2013. A number of CRA related questions have been added to thismonograph. v150810

The digital monograph is priced at $183.75 (includes GST). To order a copy, write dom@lawcourtscenter.com.

Sample List of Questions

A. General Questions

A.1. What is the definition of 'legal services' for the purpose of collecting PST?

A.2 What are the general anti-avoidance rules?

A.3 How are we to handle bad debt write offs?

B. Collecting taxes for legal service

B.1 Do we charge PST on every invoice?

B.2 Is there a guide to determinate whether or not contingency files require PST to be charged?

B.3 If a business invoices for work-in-progress (WIP) that includes goods and services preceding the date PST took effect, how is that handled (ie fixed contract price)?

B.4 Do you have a definition for "carries on business in BC" includes businesses that, other than a Registered Records office, have no other presence in BC, with supporting documentation.

B.5 Place of Supply rules and PST - if we have a client that lives in Ontario, do we bill the client HST at 13% and PST at 7%? B.6 If a lawyer provides legal services to a client who resides out of British Columbia, when are such services subject to PST?

C. Disbursements: the impact of taxesC.1 Will PST apply to all items as it does with HST (i.e. meals, children's items and previously non-taxabledisbursements)? C.2 Are disbursements incurred in the course of providing legal services subject to PST? C. 3 Could you provide more information outlining "Disbursements" and "Non Taxable Fees" and charges and how a'mark-up' would be determined/calculated? How are you determining the "reasonableness" of photocopying / printing /faxing charges? Is there a guide to determination of whether or not costs are "reasonably related" to the "transmission,printing or copying of documents" can include: equipment lease, equipment maintenance, paper, toner, and labour?

Appendix 1 Tax on Legal Services CRA Powerpoint December 9, 2014Appendix 2 Tax on Legal Services PST Ministry of Finance Powerpoint December 9, 2014

v1508

FOR OTHER RESOURCES: (INCLUDES HST #128573300)

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