Keep your practice current

by Fran Hodgkins

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 are online at www.cba.org/bc in Sections under Professional Development.

ABORIGINAL LAW – VANCOUVER AND CONSTITUTIONAL/CIVIL LIBERTIES (JOINTLY)
MEETING: May 4, 2009
SPEAKER: Mr. Justice Ian Binnie, Supreme Court of Canada
TOPIC: The Evolution of the Place of Aboriginal Peoples in the Constitution of Canada

Justice Ian Binnie joined the Supreme Court of Canada in 1998 after years in both the public and private sectors. He discussed some of his experiences working on Aboriginal cases including the Calder case in 1972 that began a process of taking Aboriginal rights seriously. The notion of “recognition,” and specifically, the recognition of historical entitlement, began with Calder and carried through theDelgamuukw and Van der Peet decisions. The cultural shift that occurred in Canada as a result of the Constitution Act, 1982 is what led to the more current view of reconciliation and a broader accommodation between aboriginal and non-aboriginal peoples. He referenced the line of cases that facilitate accommodation such asTaku River and Haida Nation where the doctrine of the Honour of the Crown emerged. This notion, broad and flexible in design, is able to put pressure on all sides to form an agreement that each can live with. Following Justice Binnie’s presentation, members in attendance asked questions about a variety of matters.

ADR – NANAIMO AND FAMILY LAW – NANAIMO (JOINTLY)
MEETING: April 2, 2009
SPEAKER: Joyce Bradley, QC
TOPIC: Lawyers’ Role as Counsel in Mediation

The Nanaimo Mediation Group and the Nanaimo ADR and Family Law Sections heard Ms. Bradley discuss how successful mediation depends on both lawyers and mediators working as a team. Ms. Bradley who retired from her law practice in 2006 after restricting her practice to mediation activities since 1989 has mentored for the Small Claims Court Mediation Practicum Program, the Family Mediation Practicum Project, CoRe at UBC, and the Child Protection Mediation Program. Her approach is best described as interest-based mediation. She tries to remain aware of the potential for change, growth and creativity in settlement agreements as part of a satisfactory resolution of legal issues. She listed several ways lawyers can assist in mediation: work with the mediator to design a specific process tailored to the client’s individual needs; prepare and advise the client before, during and after mediation on the issues; and ensure all the relevant information is on the table ahead of time such as accurate lists of assets.

LABOUR LAW
MEETING: April 27, 2009
SPEAKERS: John Kinzie, Allan Black, QC, and Tom Roper, QC
TOPIC: Ethical Issues in the Practice of Labour Law

The role of counsel and adjudicator in dealing with unrepresented parties was addressed by Mr. Kinzie, a well-respected arbitrator and former Chair of the Labour Relations Board. Mr. Kinzie also explained the ethical obligations that arise with respect to the exclusion of witnesses, witnesses under cross-examination and re-examination, as well as the role of arbitrators as mediators. Union counsel, Allan Black, QC, of Black Gropper discussed the importance of honouring solicitor client privilege. He also discussed the obligations of counsel when a witness offers false evidence. He addressed the importance of excluding grievance discussions from evidence at hearings, and he spoke to the importance of identifying the instructing client clearly and early when starting a new file. Employer counsel, Tom Roper, QC, of Roper Greyell addressed counsel’s ethical obligations with respect to pre-hearing disclosure and explained counsel’s duty to review all of the documents related to a matter (and not just those initially provided by the client), so as to ensure that full disclosure is provided. Mr. Black added that it is the obligation of counsel to address the demand for disclosure when it is made, and pointed out that late disclosure, or partial disclosure may amount to unprofessional conduct in that such conduct often results in unnecessary adjournments and delay, and represents a failing in counsel’s ethical obligations to ensure the proper functioning of the tribunal. Mr. Roper also spoke about the requirement under the canons and codes of legal ethics to defend the client’s interests within the law and within moral and ethical standards; and about ethical considerations in negotiations. Mr. Roper also spoke to the counsel’s ethical obligations when making legal arguments. He referred to the Canons of Legal Ethics that require counsel to avoid misrepresenting the law or the facts, and to avoid sharp practice.

CIVIL LITIGATION – VANCOUVER
MEETING: April 8, 2009
SPEAKER: The Honourable Chief Justice Donald Brenner, Supreme Court of B.C.
TOPIC: Update from the Supreme Court of British Columbia

The Chief Justice provided an update on new initiatives being undertaken by the court as well as issues that are facing the court. Rule 37B had been recently introduced, which expanded the scope of trial judges’ discretion with respect to costs that are continued to be monitored by the Rules Committee. He noted that the number of cases started this year remains constant, at approximately 14,000 but the cases going to trial since 2006 have increased yearly. Increased areas include personal injury (ICBC) and insolvency cases. Chief Justice Brenner commented on the use of expert witnesses where expert opinion isn’t necessary or multiple experts are too partisan. On the topic of electronic discovery, he queried whether we need e-discovery rules in British Columbia but suggested that the B.C. Supreme Court consider issuing a practice directive regarding e-discovery. Due to vacancies on the Supreme Court and the Court of Appeal, along with retirements have bumped trials and long hearings lately. A question and answer session followed Chief Justice Brenner’s presentation.

Section Chair Spotlight Kenneth N Burnett, a senior partner at Miller Thomson LLP, has been a dedicated Chair of the Air and Space Law Section for more than fifteen years. He is past Chair of the Wills and Trusts – Vancouver Section and the national CBA Air and Space Law Section. Mr. Burnett is also actively involved in advising not-for-profit groups and presently is on the B.C. Law Institute Committee recommending changes to the Society Act of B.C. An author and speaker, Mr. Burnett has written: Buying and Selling Aircraft in Canada; Unincorporated Business Associations (Negotiating and Drafting Major Business Agreement) and The Set-up and Maintenance of Charities and Not-For-Profits. Over the years, Mr. Burnett has provided strategic advice on a number of major commercial transactions, including those relating to aviation matters, joint venture agreements, commercial financing, taxation, transportation, and wills and estate planning.

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