by Shelley Bentley

There are currently 67 active BC Branch provincial sections. These sections play a vital role in keeping members both up-to-date on changes in the law, and aware of legal and political issues affecting a given area of practice. They are the main resource utilized by the BC Branch in legislative review, law reform initiatives and in responding to matters affecting the profession.

Administrative-Victoria
Professor Sandra McCallum from UVic and Harvey Groberman, QC from the Ministry of Attorney General discussed recent developments in the law of bias with particular emphasis on the House of Lords decision in the appeal of the Queen’s Bench decision to quash a warrant for the arrest of General Pinochet. In that case Lord Hoffman, who sat on the appeal, was a director of a charitable trust created by Amnesty International (“AI”). AI was an intervener in the case. Although Lady Hoffman worked as an administrator in AI’s International Secretariat, Lord Hoffman was not a member of AI, nor was he employed or otherwise remunerated by either the trust or AI. Although it was not argued that Lord Hoffman was actually biased, the House of Lord’s overturned the appeal decision on the basis that Lord Hoffman was biased based on interest and was thus automatically precluded from sitting in judgment. It was Professor McCallum’s view that the Court’s decision appeared to be founded on an extension of the “pecuniary interest test.”

Air Law
David Nowzek, Regional Director, Civil Aviation, Pacific Region, Transport Canada discussed some current regulatory issues, including Y2K matters and a shift in regulation of aviation matters by Transport Canada.

Alternate Dispute Resolution-Vancouver
Seasoned contractor and President of the Conflicts and Decision Management Center, Don White, surveyed the problems associated with leaky condos and outlined his involvement with the drafting of “Notice to Mediate” regulations which many expect to become a legislative requirement in the summer of 1999. He noted that it is estimated that 60 per cent of the wood frame residential buildings built between 1985 and 1991 during the condo market boom, leak. Residential construction mediation is still in the “embryo” stage but even if it does not lead to settlement, Mr. White noted, a good deal of information will have been exchanged to the benefit of all involved in the course of this process.

Alternate Dispute Resolution-Nanaimo
Part of the accreditation process for mediators involves on the job training in the form of a practicum in the courts. Several organizers of the Nanaimo Practicum Project addressed section members about the operation of this project.

Banking
Practice points such as whether a PPR search constitutes actual notice and the circumstances under which a priority letter should be requested were some of the topics discussed in a recent meeting.

Members discussed the case of Associates Leasing (Canada) Ltd. v. Humboldt Flower Mills Inc. (Sask. Q.B.) which involved the issue of constructive possession in relation to a claim of a purchase money security interest. Two sample priority agreements were distributed and members debated the pro’s and con’s of various provisions in the drafts.

Construction
A quantity surveyor spoke on how quantity surveyors can assist lawyers in resolving construction disputes. Quantity surveyors are trained to analyze construction work, attach values to it and to determine a reasonable cost to the work, factoring in time and scope of work.

Corporate Counsel and Business Law (joint meeting)
Four lawyers from the firm of Dorsey Whitney, the largest law firm in the US Northwest and one of the few US firms with an office in Vancouver, gave a comprehensive overview of the issues involved in cross-border mergers and acquisitions.

Criminal Justice-Okanagan and Family-Okanagan (joint meeting)
Problems with Legal Services Society funding were debated before the main presentation on spousal violence and the mechanisms available to help resolve conflict.

Criminal Justice-Vancouver
Chief Justice McEachern spoke about new issues and recent trends in the Court of Appeal. Among other items his Lordship gave details of the move towards computerized appeals and shared year end statistics for the Court of Appeal.

Criminal Justice-Victoria
Judge Stansfield spoke about the qualities of an efficient court system and the procedural problems addressed by the draft provincial court rules, also referred to as the criminal case flow management rules.

Environmental
Chris Rolfe of the West Coast Environmental Law Research Foundation is an authority on greenhouse gas emissions and has published a book entitled Turning Down the Heat. His task for the meeting was to speak on developments at the international level and how such developments affect local law and policy.

“Country trees and City Trees: The Law of Forests and the Law of Arboriculture” was the topic of a recent meeting where Dr. Julian Dunster, an environmental consultant, and William Garton of Bull,Housser and Tupper spoke.

Family-Vancouver
Counsel in the Supreme Court of Canada case of Bracklow v. Bracklow provided a thought-provoking analysis of the issues and the law in this ground-breaking case on spousal maintenance. In this case the parties separated after seven years and after considerable turmoil involving the severe mental and physical illness of one of the parties. From Barbara Young’s perspective, this case reminds us that there is a “needs based” spousal maintenance but, from opposing counsel’s perspective, need itself is not enough to obtain an order for spousal maintenance.

Gender Issues
Karen Nordlinger, QC, Georgialee Lang, and Nicole Garson, QC shared their individual experiences with finding a balance between private life and law practice.

Health
The status of settlement of the Hepatitis C litigation was reported on and some interesting cases were discussed. Patti Towler briefed the section on the recent S.C.C. decision in Smith v. Jones. In that case defence counsel retained a psychiatrist to prepare a sentencing report. During his session with the accused, the accused revealed his plan to sexually assault and kill prostitutes in Vancouver. The psychiatrist sought a declaration that he was entitled to disclose the information in his possession in the interest of public safety. The Court established a three part test to be met in order to waive solicitor-client privilege in the interest of public safety. The Court did not impose a positive obligation on psychiatrists to disclose information in the interest of public safety but permitted the psychiatrist to do so. The report was disclosed.

Human Rights and Constitutional (joint meeting)
Ed Broadbent, leader of the federal NDP from 1975 until 1989 and currently the J.S. Woodsworth Chair in the SFU Humanities Department reviewed the historical background of the present system of international human rights during a recent spirited and educational session.

Insolvency
Heather Konrad, in-house counsel with Tax Law Services of the Department of Justice, addressed insolvency Section members on recent amendments to the Income Tax Act in the area of the deemed trust and the interpretation of those amendments by Revenue Canada with respect to the priority of security interests.

Law Practice Management
Society survey statistics on client perceptions about the legal profession and new law practice management software were the topics of discussion during a recent meeting.

Lesbian, Gay, Bisexual and Transgendered Issues
David Corbett, counsel for the Foundation for Equal Families and member of the Toronto law firm of Eberts, Symes, Street & Corbett spoke regarding the Foundation’s challenge to 58 federal statutes which discriminate against lesbians and gays. Most of the legal work for the challenge is being done on a pro bono basis with almost no financial support. In launching the suit the Foundation took the position that it was ridiculous that each federal statute would need to be challenged separately in order to gain equality for lesbians and gays. The expense to the taxpayer would be too high and the length of time to achieve formal equality would be too long. The application specifically excludes the Marriage Act but does include such statutes as the Evidence Act and those sections concerned with compelling spouses to give evidence.

Maritime
Richard Keevil from Campney Murphy spoke on the proposed Nisga’a Treaty and its implications for BC’s commercial fishery. He noted that the information published by the government and the media has been confusing and contradictory and that very few people are familiar with the 714 page text of the Agreement. It provides significant allocations of commercial fishing rights in perpetuity some of which are poorly defined. He commented on some management and enforcement difficulties which could result from drafting problems in the Agreement.

Shelley Bentley is in-house counsel at the Loewen Group Inc.

This article was published in the August 1999 issue of BarTalk. © 1999 The Canadian Bar Association. All rights reserved.