Keep Current: A review of provincial Section meetings.

by Fran Hodgkins

Section News
New Chapter of the CBABC WLF
A resolution was passed at the December 5th Provincial Council meeting to form a Kamloops chapter of the CBABC Women Lawyers Forum. This new CBABC WLF location will provide networking, educational and mentoring opportunities for women lawyers in the area to connect with each other and to promote and support their advancement and success in the legal profession. Enrol today! Download a form at www.cba.org/BC.

And the Winners are?
Approximately 2,831 CBA members enrolled in Sections before August 14, 2009 and were eligible to win the “Early Bird Sign-Up Bonus Offer” of two gift certificates toward CLEBC products and two complimentary one-day CLEBC courses. And the lucky winners are:

• Gift certificate of $700 to be used toward any CLEBC product(s) of the winner’s choice: Robert W. Carfra, Johns Southward Glazier Walton & Margetts, Victoria
• Complimentary registration to a regular, one-day CLEBC course: Geoffrey Plant, QC, Heenan Blaikie LLP, Vancouver
• Complimentary registration to a regular, one-day CLEBC course: Francesca Marzari, Young, Anderson, Vancouver
• Gift certificate of $300 to be used toward any CLEBC product(s) of the winner’s choice: Mary Buttery, Fraser Milner Casgrain LLP, Vancouver

Chatter with Chairs Heidi Zetzsche Since 1998 Heidi has been a sole practitioner focusing on family law in 100 Mile House. She currently is Co-Chair of the General Practice, Solo and Small Firm – Cariboo Section which she initiated two years ago and which is based in Williams Lake. She is a Past President of the Cariboo Bar Association and served a three-year term as an Elected Member of Cariboo County. Prior to her move to the Cariboo she was Chair of the Family Law – Kamloops Section. In Kamloops Heidi articled with the then law firm Jensen Mitchell after receiving her law degree from the University of Western Ontario in 1988 and moving out west in 1990. She and her husband live in a log house on acreage in the Cariboo enjoying the outdoors with their two horses, three cats and two dogs.

Criminal Justice-Nanaimo Meeting: December 3, 2009 Speaker: Ken Paziuk, Jones & Company Topic: R. v. Grant – Issues regarding the new test for 24(2)		Administrative Law-Vancouver Meeting: November 18, 2009 Speaker: Stan Lowe, B.C. Police Complaint Commissioner Topic: Overseeing Police in British Columbia
Wills and Trusts-Vancouver Meeting: November 24, 2009 Speaker: Douglas Mathew, Thorsteinssons LLP Topic: A discussion of recent Tax Court of Canada decisions dealing with trusts: Garron Family Trust v. the Queen, 2009 TCC 450 and Antle v. the Queen, 2009 TCC 465		Banking Law Meeting: November 4, 2009 Speaker: Charles H. McKee, First Canadian Title Company Limited Topic: Gill v. Bucholtz, 2009 BCCA 137 and Title Insurance in British Columbia

Criminal Justice-Nanaimo
Ken Paziuk of Jones & Company gave an in-depth review of the recent Supreme Court of Canada decision of R.v. Grant and the history of the test for 24(2) arguments. He discussed the relationship between Madam Justice McLachlin’s dissent in R. v. Stillman and her decision in R. v. Grant. He further commented on the obiter relating to impaired driving prosecutions and updated us all on the recent decisions that have followed since R. v. Grant. A discussion followed amongst the large group of criminal lawyers regarding the change in the test for admissibility of evidence after Charter violations.

Administrative Law-Vancouver
Stan Lowe, the recently appointed B.C. Police Complaint Commissioner, discussed Bill 7, the Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, which amends the police complaint process. Presently, the Office of the Police Complaint Commissioner (“OPCC”) oversees complaints relating to fourteen municipal police agencies. Bill 7 will convert the OPCC’s process of ex post facto review of complaints decided by a “Disciplinary Authority” (usually a Police Chief) into a contemporaneous overseeing process. The OPCC will be able to review investigations as they unfold, provide investigative advice and order that certain investigative steps be taken. Additionally, the OPCC will decide the admissibility of complaints and whether they should be investigated by internal or external police departments. It will also have access to two additional avenues of review of a Disciplinary Authority’s decisions. If the OPCC disagrees with a Disciplinary Authority’s finding of “no misconduct” or with its conclusion, the OPCC can refer the matter to a retired judge for decision or for review on the record, respectively. Complainants will have enhanced accessibility, better disclosure, and the right to make submissions. Respondents will also have enhanced rights. It will be mandatory to have an external investigation where a person dies or suffers serious harm while in police custody.

Wills and Trusts-Vancouver
Douglas Mathew of Thorsteinssons LLP provided a presentation on two recent Tax Court of Canada decisions dealing with trusts: Garron Family Trust v. the Queen, 2009 TCC 450 and Antle v. the Queen, 2009 TCC 465. The Garron case involved a Barbados estate freeze. The Court held that the Barbados trusts were common law residents of Canada. Woods J. held that the “central management and control” test, rather than the residence of the trustee, was applicable to determining the residence of a trust. In Antle, shares with an accrued gain were transferred to a Barbados trust on a rollover basis. The trust sold the shares and claimed that the Barbados Treaty applied as the Trust was a resident of Barbados. Miller J. held that the Trust was invalid on the basis of lack of certainty of intention and subject matter. Despite the fact that there was a signed deed, parole evidence suggested that there was no true intention of the settlor to establish a trust. Also, by the time the trust was signed by the settlor, the alleged trustee had already sold the shares. Both cases are currently under appeal to the Federal Court of Appeal.

Banking Law
Charles McKee discussed the BCCA decision of Madam Justice Newbury that concludes the principle of indefeasible title does not apply to interests in land that are less fee simple (for example registered mortgages). In this case a fraudster forged the signature of the registered owner and transferred the property to his accomplice Gurjeet Gill. She then purported to grant a mortgage to Mr. and Mrs. Bucholtz who relied on title to the lands in advancing the loan. Although section 23(2) of the LTA establishes that indefeasible title is conclusive evidence against all persons, the BCCA concluded that section 23 only deals with title to fee simple belonging to the registered owner and as such it does not extend to lesser interests such as a registered mortgage or other charge holders. In reaching this conclusion, the BCCA noted that the Legislature of B.C. adopted a policy choice that the cost of fraud perpetrated against mortgagees and other charge holders should be borne by lenders and other charge holders, not the public.

This article was published in the February 2010 issue of BarTalk. © 2010 The Canadian Bar Association. All rights reserved.