Keep your practice current

The following are brief summaries of several recent Section meetings held throughout the province. For enrolled CBA members, more detailed information and available minutes from the Section meetings go online to www.cba.org/bc in Sections under Professional Development.

Aboriginal Law - Vancouver Meeting: December 10, 2008
Speaker: Michael J. McDonald, McDonald & Company
Topic: Implementing Agreements: Structuring and Negotiation of First Nations Businesses and Joint Ventures

Michael McDonald addressed the Section about the various steps to maximizing business opportunities for First Nation businesses arising from various Impact Benefit Agreements and Accommodation Agreements. This informative session provided practical and hands-on advice on structuring options for First Nations’ businesses, maximizing business preferences and negotiating joint ventures, including a review of sample agreements and Memoranda of Understanding. In particular, based on his many years of experience in organizing and establishing aboriginal corporations and businesses, Mr. McDonald discussed the contracting procedure of Open Book Negotiations, which he has found successfully maximizes and promotes First Nation opportunities for businesses that are owned or controlled by the First Nation or its members while not unnecessarily increasing project costs. Aboriginal law lawyers also benefited from Mr. McDonald’s practical tips on negotiating joint ventures including a discussion on key business terms of a joint venture that is created in order to take advantage of business opportunities in various IBA’s or other Accommodation Agreements. The session ended with a review of a sample MOU and precedent covering letter from an Aboriginal business to a prospective co-venturer.

Photo caption from left to right: Ming Song and Michael McDonald

Section Chairs SPOTLIGHT Charlotte Salomon, a partner at McConnan Bion O’Connor and Peterson Law Corporation with whom she articled in 1995, is in her second year as Chair of the Civil Litigation – Vancouver Island Section. She just completed her term as President of the Saanich Gulf Islands Federal Liberal Riding Association and prior to that, was President of the Victoria Federal Liberal Riding Association. In addition to being a Section Chair, Ms. Salomon’s involvement in the CBA currently includes participation on the B.C. Branch Government Relations Committee and Court Services Committee. Charlotte, an Executive member of the Victoria Bar Association since 2003, is presently the Vice-President and is expected to be President in 2010. As a mother of two preschoolers, when she does have free time, she enjoys jogging, event planning and public speaking.

Administrative Law Meeting: December 1, 2008
Speaker: James Casey, Managing Partner of Field Law in Edmonton
Topic: The Effective Advocacy of Jurisdictional Objections to Tribunals

Mr. Casey, author of the Regulation of Professions in Canada and A Guide to the Health Professions Act is an expert in administrative law, labour law and alternate dispute resolution. He provides advice to professional organizations and has appeared before numerous administrative tribunals and courts including the Supreme Court of Canada. The topic canvassed the challenges associated with making a technical, legal objection to a tribunal which is not legally trained. This practical presentation, attended by 50 Section members, and several by Webinar, included a discussion of how to effectively make representations to the tribunal on jurisdiction without alienating the tribunal from which you are hoping to obtain a positive ruling on the merits. An outlined copy of Mr. Casey’s presentation included details of “Preliminary Considerations,” “Jurisdictional Objections on Which the Advocate Anticipates Failing at the Tribunal Level” and “Jurisdictional Objections on Which He Hopes to Succeed at the Tribunal Level.” His presentation focused on cases where the administrative tribunal had a lay (non-lawyer) component; in that event the strategic considerations are particularly acute, but are also applicable to tribunals whose members are lawyers.

Computer Law, Business Law, and Corporate Counsel (Jointly) Meeting: December 10, 2008
Speaker: Brian Lee: Partner, Lawyer and Patent Agent with Gowling Lafleur Henderson LLP
Topic: The Patent Troll: Strategies and Tactics for Dealing with “Non-Practicing Entities”

Mr. Lee’s presentation included discussion on the legal and economic context in which patent trolls emerged; proactive and preventative strategies that a business can employ to mitigate the threat that patent trolls represent; strategies a business should consider when a patent troll alleges patent infringement; and how a recent en banc United States Federal Circuit Court of Appeals decision, In re Bilski, may weaken the legal position of many patent trolls. In particular, Mr. Lee noted that financial service providers, software developers, online retailers, and businesses that provide services over the Internet are those businesses that are particularly vulnerable to patent trolls. Proactive strategies for dealing with patent trolls were discussed including acquiring or licensing intellectual property that may pose a threat before a patent troll has an opportunity to acquire it; conducting “freedom to operate” searches in order to better assess the risk of conducting business in a certain area; and structuring contracts to mitigate the risks of patent litigation, such as by including indemnity clauses with suppliers. Reactive strategies included the topics of how to analyze and respond to an initial cease and desist letter; when and how to settle patent troll litigation; and the advantages and disadvantages of unilaterally commencing patent impeachment proceedings or an action seeking declaratory relief. This well-attended lunch meeting addressed a timely and important issue to practitioners of all three Sections.

Photo caption from left to right: Prentice Durbin, Roch Ripley and Brian Lee

Family Law – Vancouver and Westminster (Jointly) Meeting: December 3, 2008
Speakers: The Honourable Madam Justice Boyd, The Honourable Mr. Justice Brine
Topic: Judicial Case Conferences and Spousal Support Advisory Guidelines: Perspectives from the Bench

This joint dinner meeting at the Hart House Restaurant in Burnaby was attended by 70 Family Law Section members and was sold-out two weeks prior to the event. Mr. Justice Brine commented that the Spousal Support Advisory Guidelines (SSAG) have been embraced by the B.C. courts and are now routinely cited according to the authors, Professors Rollie Thompson and Carol Rogerson. B.C. has generated the most decisions referencing the SSAG which is a useful tool in determining quantum and duration of support. Significant discretion is allowed by judges in awarding spousal support in consideration of the individual circumstances of each case. Parties with reasonable expectations can more often resolve issues without recourse to the courts. Judicial Case Conferences (JCCs) which began in Westminster County grew to become a valuable tool controlling and managing the chambers and trial lists. In Madam Justice Boyd’s experience the settlement rate for JCCs is around 75 per cent. Litigants appearing at JCCs begin to understand the high cost of appearing in court and are surprised that so much can be accomplished at a JCC, resulting in savings of legal fees.

This article was published in the February 2009 issue of BarTalk. © 2009 The Canadian Bar Association. All rights reserved.