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.

Air Law
Ian MacKay, Vice President, Law, Policy of the Canadian Air Transport Security Authority (CATSA) discussed the activities, structure and responsibilities of CATSA. CATSA is governed by the federal Air Transport Security Authority Act and funded by the consolidated Revenue Fund. It is responsible for pre-board screening, hold-bag screening, non-passenger screening, enhanced restricted area passes, airport policing programs and aircraft protective officer programs for 89 airports. Some of the current issues facing CATSA are:

• What happens when contraband is found in luggage? CATSA’s position is that they have no duty to disclose what they find;
• Confidentiality of passenger information;
• War risk and obtaining insurance coverage for this;
• Use of space at airports – CATSA currently doesn’t pay for it; and
• The use of airports as contractors for services.

Civil Litigation-Vancouver
Lawyers Stuart Rennie, John Singleton and David Osbourne addressed the six areas targeted by the B.C. Government in its civil liability review: the law of limitations; joint and several liability; structured damage awards; vicarious liability; the non-delegable duty doctrine; and costs in class proceedings.

Mr. Rennie outlined the extensive research undertaken by the CBA leading to a background brief and the recommendation that it oppose sweeping changes to the law of civil liability without full consideration, consultation and a demonstrated need. Mr. Singleton pointed to the following as examples of factors justifying law reform in the area of joint and several liability:

• The liability explosion in the last 20 years;
• The increase in insurance premiums in the past few years; and
• Significant changes in the law in the last 25 years, including the law of negligent misrepresentation, economic loss and concurrent liability in contract and tort, leading to an increase in liability exposure.

Mr. Osbourne opposed the civil liability review as a government attempt to reduce the cost of judgments against it at the expense of individual rights.

Health Law
Lillian Bayne, Regional Director of Health Canada and past Assistant Deputy Minister spoke about the future of the Health Care Commission. She commented that this commission differs from many others because:

• It is based in Saskatchewan (the birthplace of Medicare), rather than in Ottawa;
• It is led by an ex-premier; and
• It is focused on Canadians’ values and letting Canadians speak for themselves.

Extensive public participation involved in the Commission’s investigation showed that Canadians are concerned about the future of Medicare and want to preserve it. They blame those in authority for its deterioration and want to be engaged in preserving it. Accountability is key to reform in this area. The Commission has proposed establishing a health council to take responsibility for: establishing common indicators; measuring performance; establishing benchmarks; collecting information and reporting publicly; coordinating evaluation and assessment activities; and providing ongoing advice and coordination in reforms.

Insolvency Law
Clive Bird, of Borden Ladner Gervais, delivered a comprehensive update on commercial insolvency law in Canada. In particular he highlighted these issues and areas of concern:

• Interim receivers and the very broad powers given to them in Ontario proceedings as compared to their statutory mandate and the powers given to them in other provinces;
• The Quebec decision of Peoples Dept. Store v. Wise, concerning the duties of directors owed to creditors on the eve of a company’s insolvency;
• The Quebec decision in Jefferey Asbestos, concerning a monitor’s obligations to employees under a collective agreement;
• The Alberta case of Sulphur Corporation concerning a “debtor in possession” issues in CCAA proceedings where “debtor in possession financiers were given priority over provincial lien claimants by an exercise of the court’s equitable jurisdiction;
• The use of corporate statutes in insolvency proceedings especially the use of the Canada Business Corporations Act to reorganize or extinguish rights of certain shareholders; and
• The case of CC Petroleum and equitable subordination.

Wills and Trusts-Vancouver
Kirsten Jenkins, of Bull, Housser & Tupper, discussed the rights and powers of minors and their guardians to deal with a minor’s property and pointed out the numerous areas where this power is not well-defined in B.C. Issues in this area commonly arise in a number of contexts, for example, in the entertainment business with minor actors, in the area of technology development and in the estate context where a minor inherits.

Ms. Jenkins said there are no restrictions on the ability of a minor to hold legal title to property but the difficulty is in dealing with the property. She discussed a minor’s ability to contract, capacity orders under the Infants Act and guardianship and its governing legislation.

Women Rainmakers-Vancouver
Peter Legge, Chair of the Vancouver Board of Trade, author, and winner of the Toastmasters International “Top Speaker in North America” award, spoke on being successful in business. His formula was: be active in the business community; do something extraordinary; learn to be an accomplished speaker; serve the community; use the words ”I will”; be ethical; and balance your business and your personal life. He stressed that serving your community is the most important key to success.

Shelley Bentley is in private practice at G Davies & Company.

This article was published in the October 2003 issue of BarTalk. © 2003 The Canadian Bar Association. All rights reserved.