By Shelley Bentley

The CBABC sponsors 73 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting a given area of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Administrative Law-Victoria
Dianne Flood, Executive Director of the Administrative Justice Office discussed the implementation of the Administrative Tribunals Act and the role of the Administrative Justice Office.

The Administrative Tribunals Appointment and Administration Act, S.B.C. 2003, c. 47 (the “ATAAA”) reformed the process for appointments to tribunals. Among other things, it created a transparent merit-based process for appointments, ensuring that all appointments are for fixed terms and clearly set out the management role of tribunal chairs. The ATAAA will be repealed, likely in the Fall of 2005, when the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”) is brought into force by regulation. This Act is intended to achieve many of the objectives identified in the Administrative Justice Project’s 2002 White Paper by codifying the common law and introducing consistent authorities and powers where appropriate and after consideration of a tribunal’s unique nature, mandate and role. The new Act also addresses appointments to tribunals and the role of tribunal chairs. Ms. Flood stressed that the ATA should be viewed as an evolving piece of legislation. She predicted that it would be amended frequently as the need for reform and refinement arises.

Commercial and Real Estate-Vancouver Island
Real estate conveyancing news items were announced by Ron Usher at a recent meeting:

• The Property Transfer Tax is now calculated on the value of the property at the time the purchase contract is signed and not at the time of the transaction. Given the recent market conditions this has positive implications for those who have purchased homes before they are built.
• As of January 1, 2005, mortgagees will have to provide mortgage discharges within 30 days of receiving payout proceeds. Their discharge fee is capped at $75. However, there is no penalty for failing to provide the discharge within 30 days. (Note: This information is no longer correct, as the Government of BC has chosen to delay enactment of this provision. We are hopeful that it will be brought into force soon, and we will keep you informed.)
• Lenders are beginning to return to lawyers for doing refinancing work rather than using title insurance. With e-filing, lawyers are now able to provide better service. In addition, with the Western Canada Protocol, lawyers are making the transaction easier for all involved.

Criminal Justice-Vancouver
The Justice Review Task Force’s Street Crime Working Group addressed Section members at a recent meeting. This group was formed to look into issues such as chronic re-offending, addiction, mental disorders and urban Aboriginal issues.

One of the major problems faced is the lack of connection between the justice and the health system. The group is exploring ways to connect the justice system with programs offered in the health arena. They are working with the health associations involved in the Vancouver area to provide input into the decisions being made around accessibility of detox centres, safe injection sites and addiction services. The administration of these services is being examined partly as a result of the Vancouver Agreement, a five-year plan involving three levels of government whose focus is on co-ordinating funders, prioritizing programs, dismantling the open drug scene, extending addiction services and revitalizing Vancouver’s downtown eastside.

Street Crime Working Group: Among others, this 14-member group includes Judge William Kitchen from the Provincial Court Bench, Dan Mulligan, remand prosecutor in charge of charge approval, Peter Leask, QC from the defence bar, Susan Richter from the Coastal Health Board, Lisa Burgess from the Ministry of the Attorney General, Debbie Granger, Crown Counsel, Al Shoom from Regional Community Corrections and Heather Hay from the Vancouver Coastal Health Authority.

Family-Vancouver
Angela Thiele acted for the Respondent father in Hietanen v. Hietanen 2004 BCSC 306, a recent case noteworthy for Mr. Justice Fraser’s finding that payors are responsible for producing evidence of their incomes even without prompting by payees following the concept of “utmost good faith,” an idea borrowed from insurance law.

Ms. Thiele discussed the Hietanen case and offered the following practice tips:

• Ensure that your client can distinguish between regular salary and overtime pay on pay stubs.
• Provide for the possibility of overtime work in agreements and provide that if your client elects to work overtime it will not be considered income for the purposes of the Support Guidelines.
• Be wary of bumping up spousal support as a way of increasing child support. In the case at hand the original intention of providing generous spousal support was to provide a tax-beneficial way of supplementing child support. Perhaps any agreement with such terms should provide that any increase in child support should trigger a review of spousal support.
• Verify your client’s present income when preparing a Child Support Fact Sheet in divorce proceedings following a separation agreement.

Labour
“Video Surveillance: Reasonable exercise of management rights, or outrageous infringement of privacy?” Arbitral authority holds that absent an express term in the collective agreement, there is no blanket prohibition against video surveillance in the work place. When is it a reasonable exercise of management rights?

The focus of discussion in a recent meeting led by Gina Fiorillo and Norm Trerise was on the arbitration ruling of Donald Munroe, QC in Pope and Talbot. In this case the grievance concerned a production area where chips were off-loaded from a scow by a barge loader. There would be significant charges for the employer if the off-loading was not done in a timely manner. The supervisor worked some distance away and could not directly supervise. A video surveillance camera was installed providing 24-hour surveillance of a part of the production area, but not the whole area. The monitor, although on 24 hours a day, was not watched every minute.

The employer argued that the Personal Information Protection Act (PIPA) was legislated to protect employers. Mr. Munroe, QC noted that the legislation did not alter the existing jurisprudence. PIPA requires a balancing test between employees’ privacy rights and an employers’ legitimate business interest. Where the surveillance is surreptitious, the test is:

• Is there a substantial problem?
• Is there a strong possibility that surveillance will be effective?
• Is there no reasonable alternative to surreptitious surveillance?

Where the surveillance is obvious the standard of reasonableness is lower. However, employee privacy rights do not override the employer’s legitimate business interests. Mr. Munroe, QC found that constant surveillance is preoccupying and may result in the diminution of an employee’s sense of dignity and privacy. In this case, although the employer had a reasonable justification for installing the camera, Mr. Munroe, QC ruled that constant 24-hour surveillance was an unreasonable exercise of management rights.

Shelley Bentley practises wills and estates law at Kerr Redekop Leinburd & Boswell in Vancouver.

This article was published in the February 2005 issue of BarTalk. © 2005 The Canadian Bar Association. All rights reserved.