Keep your practice current

by Fran Hodgkins

The following are brief summaries of several recent Section meetings held throughout the province. More detailed information and available minutes from the Section meetings are accessible online at www.cba.org/bc for enrolled CBA members.

ADR – Vancouver
Meeting: March 21, 2006
Speaker: Jerry McHale, QC, Assistant Deputy Minister, Justice Services, Ministry of Attorney General
Topic: Civil Justice Reform: Issues and Updates

Mr. McHale provided a PowerPoint presentation at this meeting. A summary of highlights were as follows: There are many signs of public discontent with the system, and civil justice reform is a high priority for the Ministry of the Attorney General. The Ministry, bench and bar are actively engaged in reform discussions through the Justice Review Task Force. Key principles for effective reform are access to justice, affordability, proportionality, client-centred processes, and fairness. We also need more management data to better understand what happens to cases in the system. Key strategies include litigation avoidance (dispute prevention, DR clauses in contracts, etc.), streamline procedures (e.g. Rule 68, simplified forms, case management), avoiding adversarial contests (ADR, collaborative law, JCC, etc.), and legal education and information.

Entertainment Law
Meeting: March 30, 2006
Speaker: Juliet Smith, Fraser Milner Casgrain LLP
Topic: Financing in the Film Industry in Canada

Juliet Smith provided an extensive review of the many aspects of film financing, both from the perspective of a producer and from the perspective of a bank. An indigenous producer accesses financing from many sources including tax credit, pre-sales, government funding agencies, and deferrals. As receipt of these monies is spread out over the production and can extend until months after the production is delivered, many producers interim finance their production through a Bank. Currently, there is a high level of work in the film industry in British Columbia.

Environmental Law
Meeting: March 15, 2006
Speaker: Andrew Gage, West Coast Environmental Law
Topic: WCEL’s Current Initiatives

West Coast Environmental Law is known as being the “duty counsel for the environment.” It has developed three main programs. The Environmental Citizenship Program provides legal support to individuals and communities working on environmental issues. The Sustaining the Land Program allows WCEL to take a more proactive role and focus its resource use ensuring that rights holders are not ignored. This program also strongly encourages “Smart Growth” when private landowners and the environmental community work together. The goal of the Sustainable and Liveable Communities Program is to achieve environmental, economic, and “liveable” communities. Publications by WCEL such as Smart Bylaws are used by municipalities, policy drafters, and legislators.

Family Law – Nanaimo
Meeting: April 11, 2006
Speaker: The Honourable Judge Cowling & The Honourable Judge Saunders
Topic: Discussion of Ex Parte applications at the Provincial & Supreme Courts

The judges commented on the good work being done by Nanaimo counsel and Nanaimo family duty counsel in provincial court. The issue of ex parte orders was discussed. The judges present agreed that it was their practice that ex parte orders should have a fixed term and expire on a fixed date and be accompanied by a requirement that they be served forthwith on the other party. It was their preference that all applications without notice are provided with an affidavit giving a complete background and explaining why the application had to be made without notice. If the affidavit was not filed then the person would have to take the stand and swear as to why the matter had to be heard without notice.

Freedom of Information & Privacy Law
Meeting: March 22, 2006
Speakers: Chris Harris, Chief Privacy Officer and Manager of Information & Privacy, TransLink
Topic: Experience with FOIPPA matters

Mr. Harris summarized the purpose of FOIPPA, namely to make public bodies more accountable to the public and to protect personal privacy. The protection of personal privacy is achieved by giving the public a right of access to records, preventing unauthorized collection, use or disclosure of personal information by public bodies, and providing for an independent review of decisions made under the Act. Since TransLink was created, Mr. Harris has been the formal delegate of the “Head of the Public Body” pursuant to the Act. He discussed his experience with FOIPPA generally and with section 21(1)(b), including the situation leading to Commissioner’s Order 2001-39 and the subsequent judicial review (access to records including contracts with a third party).

Labour Law
Meeting: March 14, 2006
Speaker: Don Jordan, QC, Taylor Jordan Chafetz, John Rogers, Victoria Square Law Office LLP, Willy Laurier, RCMP (Police-Labour Communications Group) & The Honourable Allan McEachern, Fasken Martineau DuMoulin LLP
Topic: Contempt and Enforcement

Mr. Jordan who wrote an editorial during the Truckers’ blockade at the ports voiced concern about how it continues to be an issue. There is a policy about how the police get involved in disputes, not just in labour disputes where there are blockades. Willy Laurier of the RCMP tries to ensure that police and municipal forces adhere to policy as consistently as possible. The Honourable Allan McEachern mentioned that judges don’t like applications for injunctions and certainly not contempt cases.

Legal Research
Meeting: February 15, 2006
Speaker: Stanley Martin
Topic: Researching and Drafting Pleadings

Mr. Martin led an excellent discussion of the purpose and practice of pleadings. His key points included: There is a tension between the traditional style of pleading (material facts only) and the modern narrative style. Texts like Bullen are less helpful as a result. McLachlin & Taylor Court Forms is a useful B.C. resource. Pleadings are still useful in that they guide discoveries, set out the issues at stake, and drive summary and interlocutory processes. Rule 19 is the main rule that governs pleadings. Always plead principles of law or statutes you will rely on. Although there are fewer technical objections to pleadings today, pleadings remain important and should be properly drafted. Various processes these days are now commenced without pleadings per se (petitions, mediations). A pleading will require some evidence in support, or it is an abuse of process.

Municipal Law
Meeting: February 16, 2006
Speaker: The Honourable Mr. Justice Robert Bauman, B.C. Supreme Court
Topic: Presenting a Municipal Law Matter to the Supreme Court under Rule 18A

At this Section meeting, Justice Bauman provided tips on good advocacy. When drafting your material, keep in mind the three “C’s” of drafting – material should be concise, chronological, and complete. Consider the evidentiary issues. Is a final Order being sought, and if so, are you relying on any hearsay evidence? Oral advocacy is alive and well and does make a difference to your case. Outline the points you are going to make and in what sequence. You should assume that the judge knows nothing of the area of law you are arguing and adjust your argument accordingly as you proceed. End your argument with a quick summary of your central points.

Young Lawyers – Okanagan
Meeting: March 28, 2006
Speakers: Garry Benson, Benson Edwards LLP
Topic: A Perspective on Developing your Legal Practice

Mr. Benson who practises in Kelowna and whose background was in senior government and with the RCMP provided members with an informative presentation of his experience and perspective on developing your legal practice. In a point-form summary, he gave several tips on building a practice, starting up your own firm and practice expectations.

This article was published in the June 2006 issue of BarTalk. © 2006 The Canadian Bar Association. All rights reserved.