BarTalk | August 2017 by The Canadian Bar Association, BC Branch

PRIVACY VS FREE SPEECH | DASH-CAM VIDEO | CASL | TECHNOLOGY USE

AUGUST 2017 | bartalkonline.org

Privacy Law

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Deborah Carfrae EDITORIAL BOARD CHAIR

Candice Alderson

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BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org. © Copyright the British Columbia Branch of the Canadian Bar Association 2017. This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel. The British Columbia Branch of the Canadian Bar Association represents nearly 7,000 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

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BARTALK / AUGUST 2017

BC’s LEGAL HISTORY

by Hamar Foster, QC

LOOKING BACK VII: THE 1987 GENERAL STRIKE In an earlier instalment of this series (October 2016), I noted BC’s contentious labour history and suggested that the first real strike was in 1838, when the crew of the Beaver downed tools. In 1987, a rather more spectacular event occurred: a province-wide general strike. The government’s response was to issue a writ seeking a civil injunction to prevent a repetition of the strike. The wording of the writ was (forgive the pun) striking. In framing it, counsel borrowed from the sedition provisions of the Criminal Code, seeking, for example, to enjoin anyone from advocating the use of force, including advocating “study sessions... as a means of accomplishing governmental change.” The writ also sought to enjoin “showing Her Majesty has been misled or mistaken in her measures” or “pointing out errors in the government of the province.” Remarkably, the latter, if done in good faith, are actually defences to being presumed seditious under the Code. The BC Supreme Court judge who heard the case doubted whether many of the actions set out in the endorsement constituted force. Meredith, J. also doubted whether the government could substitute civil process for criminal prosecution in this way. But he did not need to decide these questions because, between the writ and the statement of claim, someone seems to have reconsidered: the statement of claim contained “no allegation or hint of the charges” in the endorsement. The defendants therefore moved to strike the endorsement and dismiss the action – a motion that the judge granted. He also ordered costs “on a solicitor/client scale” because “the defendants should be entitled to as complete an indemnity... as I am at liberty to order.” In 1987, the Charter had been in force for five years. Yet the endorsement was an attempt to convert political protest into a type of civil sedition. One therefore wonders: What were they thinking? Further reading: BC (AG) v. Georgetti, [1987] BCJ No. 1197 and BCJ No. 3117.

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AUGUST 2017

VOLUME 29 / NUMBER 4

Contents

Departments

FROM THE PRESIDENT Taking Stock by Michael Welsh

EXECUTIVE DIRECTOR Time for Reflection by Caroline Nevin

PRACTICE TALK Wait and See by David J. Bilinsky

DAVE’S TECH TIPS

NOTHING OFFICIAL Communist Propaganda of the Shoddiest Kind by Tony Wilson, QC

Sections

10 SECTIONS ROUND-UP 2016/2017

Features

12 PRIVACY VS. FREE SPEECH ON THE INTERNET by Karen Zimmer 14 PRIVACY LAW CANNOT THWART BUSINESS INTERESTS by Scott Allen 15 DO CORPORATIONS HAVE A RIGHT TO PRIVACY? by Marc Dumais 16 DASH-CAM VIDEO AND THE CHALLENGES OF CONSENT by Bradley Weldon 17 TECHNOLOGY USE AND PRIVACY AT WORK by Lisa Picotte-Li 20 ANTI-SPAM LEGISLATION AND RELATED IT ISSUES by Archana Aggarwal 21 A NEW EXPRESSION FOR PRIVACY RIGHTS IN CANADA? by Menachem Freedman

Guests 9

THE CIVIL RESOLUTION TRIBUNAL by Oscar Miklos

22 MY PROFESSIONAL JOURNEY by Dennis J.K. Nkojo

Inside This Issue Privacy: we all need it, value it and have a reasonable expectation that it is protected by the Charter. The ever-evolving technological world tests existing privacy boundaries and establishes new ones. Over the past year, the Supreme Court of Canada has rendered decisions dealing with privacy laws and legitimate business issues and, more recently, two landmark SCC decisions were rendered against Facebook and Google, both highlighting the impact of Canadian law on business activities in other jurisdictions. Dash-Cam videos, free speech on the Internet and a private right of action against organizations that violate CASL are all covered in this issue. Enjoy the read!

News and Events 2 BC’s Legal History by Hamar Foster, QC 23 SCC Rules Against US Tech Giants: “The Internet Has No Borders” Provincial Court of BC – Practice Directives and Changes BC Legislative Update Provincial Court of BC – Judicial Council to Adopt Online System for Appointment Applications 24 Tips from Courthouse Libraries BC Calling All Lawyers: Be a Mentor CLEBC Update 25 Nominations for the Georges A. Goyer, QC Memorial Award for Distinguished Service Branch & Bar Calendar 2017 Bench & Bar Dinner Indigenous Legal Issues... by Frances Rosner 27 Five Best Lines From Legal Movies 16 26 28 29 30 31

Also In This Issue

MEMBER SAVINGS LAW FOUNDATION OF BRITISH COLUMBIA PROFESSIONAL DEVELOPMENT DISPLAY ADS BAR MOVES NEW MEMBERS

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FROM THE PRESIDENT MICHAEL WELSH

Taking Stock

“Success is where preparation and opportunity meet” — Bobby Unser (Indy 500 racer)

ith this, my last president’s BarTalk column, I reflect back on my first column and the things I hoped we’d accomplish. As my term draws to a close, I reflect on whether we stayed the course, and how far along it we came. As predicted, the 2017 provincial election was a main focus, and we put our efforts into bringing justice and law reform issues into the campaign arena. What I (in fact, no one) predicted was the convoluted and history-making nature of that election. But we were ready with our Agenda for Justice containing some 30 proposals for justice improvements. We received much public and media attention on our calls for increased funding for legal aid and for court staffing and infrastructure. The CBABC has fought for years to restore proper government funding in these areas, but previous governments generally turned a deaf ear. This time we persisted in many media stories, one-on-one conversations with political candidates and in public forums. We made inroads, as first the NDP supported $55 million in additional spending in the next three years, and then, when it briefly formed a minority government, the Liberals promised a 25% funding increase. While there are many political reasons that led to this “epiphany” by both parties, I believe our consistent, very public pressing of the issues was a significant factor. We used this opportunity to exert influence to ensure more people who cannot afford legal services will have assistance to obtain them. We will stay the course until the budget is released to see that both our new government and opposition keep their promises. A second goal was to determine how we respond to the Truth and Reconciliation Commission report’s calls to action. Working with our Aboriginal Lawyers Forum (“ALF”)

BARTALK / AUGUST 2017

and Indigenous members, we amended our bylaws so a member of the ALF sits on our Executive Committee. We have established a working group with Tina Dion, QC as chair, and a broad cross-section of members, to make recommendations on what we should do as an organization, and how we can best assist our members to take action. I believe we will better serve our Indigenous, and in fact all members, as a result of this work. Another goal was to assist new lawyers and lawyers in smaller communities. We’ve had another successful year placing law students into smaller communities through our REAL program, and we have had meetings with key players in the former and present governments on our student loan forgiveness program for new lawyers in rural communities. We are moving forward with pilot projects in partnership with a couple of communities that we believe will gain government support.

The last goal was to improve governance and service to members. As the CBA nationally continues to transform itself, I have had the responsibility of sitting on the last of the “old boards” composed of Branch presidents and Section chairs. We now have a BC director elected directly to the national board, along with her colleagues similarly elected from each jurisdiction in Canada. From now on, Branch presidents can focus on their Branches and not do double duty (in particular, with no more trips to Ottawa in February!). I am pleased with what my fellow Branch presidents and I were able to accomplish on a national level, and believe we leave the CBA stronger as a result. Our Branch will now determine the changes we should make to better govern ourselves and serve you, and we are in the planning stages for a Branch governance review that will bear its fruit in the months ahead. We are a strong Branch that commands respect from government, the courts and the public, but we can do better and we will. All said, and due to good work by our member volunteers and staff, we met the marks we set, and that measures up to a successful year.

Michael Welsh

president@cbabc.org

EXECUTIVE DIRECTOR CAROLINE NEVIN

Time for Reflection

What makes this work worthwhile?

his Spring, I celebrated 10 years as the Executive Director of the CBA, BC Branch. Before that, I served on the CBABC Management Team with some great EDs, in particular Frank Kraemer, QC, who recently retired from his own position as Executive Director of the Supreme Courts of BC. At this point in a career of leadership service – and I’m sure others out there will recognize this – there is inevitably a time of questioning about whether what you are doing is still invigorating, and whether you still bring the best of yourself to work. The answer, for me, is more complicated than a simple “yes.” So many of the same issues keep rising up, year after year – underfunding of legal aid, under-resourcing of the courts, poor rural access to legal services, and other deep injustices that come from being the much lower political priority behind

health, education and others. It is tiring to fight those same battles over many years, so it takes endless depths of faith and belief that without the CBA and what we do year after year – never, ever giving up – things would be so much worse for us as a society. I confess to being unwaveringly optimistic. I believe that inevitably, by will or by legal force, we will continue to make progress in not just protecting what is good in our justice system, but also in making it better. I meet with young lawyers and aspiring-to-be lawyers often. It is an essential inoculation against cynicism, and I highly recommend it. The same passion and vision that motivated so many of you to enter law are there, in spades. But also higher than ever levels of technological know-how, a strong sense of inter-connectedness, and a fundamental belief that every voice and action matters. Sure, they will buck up against a system that has fed on hierarchy and precedent

forever, but they seem surprisingly resilient and impervious in a way that is different to those who came before. These really ARE the lawyers of the future and, hopefully, smart people in their path – principals, managing partners, ADMs and GCs – will

I am challenged every day to match the commitment and ideas that stem from so many great people who engage with the CBA. see the amazing value in what they have to offer, learn from them, and help pave their way. I see the same thing in our own staff. We are a small office, and we rely on young people to fill many of the essential roles of an administrative office that is focused almost exclusively on supporting the

Association’s work done by hundreds of lawyer volunteers with busy lives. These young staff are bright, enthusiastic, and drawn to being part of something that has a big impact in the world. Their energy and outlook give everyone around them, including me, a sharper attentiveness and different perspective to our everyday work. Speaking of volunteers, that is another great energy-booster to someone in my role. I am challenged every day to match the commitment and ideas that stem from so many great people who engage with the CBA, both at the Branch level and on the National stage. Of special significance, on August 17 we will see a BC lawyer – Kerry Simmons, QC of Victoria – become the first National President of the first CBA Board elected on the basis of competency, diversity and personal passion for creating a new CBA that delivers great service locally but also looks beyond provincial/territorial boundaries and asserts the profession’s significant role in Canada. How exciting is that?! So yes, despite the challenges, there is still invigoration in this role and yes, I am endlessly stimulated to bring my best to work. I hope the same for all of you!

Caroline Nevin

cnevin@cbabc.org AUGUST 2017 / BARTALK

practicetalk DAVID J. BILINSKY

Wait and See

The future is just evolving Raise your hand in the air If you believe the future had come now r r

“

– Music, Lyrics and recorded by: Ty Bello.

The future has already arrived. It’s just not evenly distributed yet” said the author William Gibson. Indeed when reading the recent blog post by the legal futurist Roger Smith “Law, Technology and Access to Justice” reflecting on the Dutch experiment with Rechtwizer 2.0 (the online divorce and separation service), one is reminded that rarely does the future appear as originally envisioned. Rechtwizer was a game changer. It sought to help divorcing couples by providing initially “static” information on how to divorce and then in version 2.0, Online

Dispute Resolution services. It did help hundreds of couples achieve a divorce. But Maurits Barendrecht of the Hague Institute for the Internationalization of Law stated that version 2.0 didn’t obtain more than 1% of the users going through the system. Roger Smith’s post reflects on any number of possible reasons: 1. Citizens do not want online supported resolution services; 2. Institutional funders – legal aid boards, ministries, courts and law firms – are not ready for online supported dispute resolution services; 3. The market can resolve the access to justice problem, so government is not needed and we, the Hague Institute for the Internationalisation of Law, failed to deliver. It is important to reflect on each of these and realize that rarely does the future arrive as initially envisioned. Contrast a Tesla with a Model T as an example. The Tesla is a result of decades of 6

BARTALK / AUGUST 2017

development and thought and the exploration of several ideas, some of which worked and some which have gone by the wayside. Rechtweizer did take a different path from BC’s Civil Resolution Tribunal (“CRT”) and the Online Court proposed for the UK. Indeed, Roger Smith has advised that not a penny be spent on further ODR developments until the lessons can be learned from “the new global leader” – BC’s Civil Resolution Tribunal. The eyes of the world are indeed on us at the moment. I would have to say we can adopt one lesson that Professor Smith noted in his blog – “The move to 2.0 [Editor: the adoption of ODR] was significant. It brought the fledgling programme into opposition with lawyers instead of, as did 1.0, potentially of helping them.” This concurs with what I have been advocating from the beginning: that the CRT should seek

to bring lawyers into the system instead of excluding them in s. 20. It divides the public into two groups – those who can use the system and those who could be using it but are prevented from doing so. It is lawyers who can feed the CRT many cases and assist its development. I think, and have always thought, that lawyers can help the system grow and become more effective at resolving disputes. I think lawyers can play a part in making the future appear by using the CRT to great effectiveness on behalf of their clients. What lessons does Professor Smith draw? “Well, the Rechtwijzer team should not be too dispirited. They have set a standard which stands as one which others have to meet. The digital naysayers should not use the Rechtwijzer as an alleged example that proves either online advice or online resolution do not work.” I don’t believe the future has come just yet – it just needs more time to become evenly distributed. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: daveb@lsbc.org Blog: thoughtfullaw.com

GO ONLINE FOR MORE INFORMATION

dave’s techtips Full Practice Management There is finally a new development in the legal technology field (CosmoLex) that is squarely aimed at Canadians. For some time now I have been hoping for one product that combines full practice management (think Amicus Attorney or CLIO) with legal trust accounting that complies with provincial law society trust requirements and general accounting (think PCLaw or ESILAW) that complies with the Canadian tax system. Before this, users were forced to compromise by linking two products (such as linking CLIO with the Canadian version of Quickbooks or Xero or Amicus with PCLaw) with the requirement for double entries and resultant errors. They state: “CosmoLex covers all bases, including Document Management, Email Management, Calendar & Tasks, Contact Management, Case Workflow, and Matter-Centric records. For new customers: “We even include a no-monthly fee LawPay account (we’ll cover the $20 LawPay monthly fee forever!).” Lawpay is the credit card processing system that allows you to select whether a payment goes into general (to pay a rendered account) or trust (as a retainer).

Cosmolex Canada was developed with the assistance of the Law Society of Alberta. Unlike BC, lawyers in Alberta must use an accounting system approved by their Law Society (which I believe, at the moment, only includes PCLaw and ESILAW). So, this is a big development. It will allow accounting based on the accrual method and will allow Canadian users to set HST/GST/PST on a file by file basis if necessary (for those situations where you are billing a client in another province). Cosmolex is cloud-based and currently hosted in the USA. It remains to be seen if they will develop a Canadian data centre to host Canadian clients. At the moment, this places Cosmolex on equal footing with Amicus Cloud and CLIO, which are also hosted in the USA. Pricing for Canadians has yet to be announced but in the USA it is $49 per user billed annually or $59 on a month to month basis. It includes free data migration (for everyone on a different practice management or accounting system) and free login for an external bookkeeper or accountant. It also includes free unlimited storage and free unlimited support. APPLIED AI Much has been written about Artificial Intelligence (“AI”) and the law. Certainly, IBM’s Ross is a huge development in the application of AI to the law. However, Ross is still only being used by the bigger USA law firms. But there are developments that allow all sized firms to benefit from AI. Richard Tromans in an article “AI in the law – The industrialisation of cognition” talks about RAVN Systems in the UK. He states: “Its most prominent offering is a Cognitive Engine, using what RAVN calls ‘Applied

AI,’ which we can perhaps call AAI. This can be differentiated from ‘Theoretical AI,’ which is the stuff of much conjecture and fun, but nothing in the way of actual products (yet). In short: AAI is the real face of new legal tech. It actually works and people are using it right now.” What does it do? “[W]hat this software and its clever proprietorial algorithms do is make ‘useable meaning’ out of ‘unstructured data’ such as written text or tables, which have not been sorted or made interactive, e.g. a printed-out lease agreement, or a PDF contract document. In other words, data where a person would have to sit down, read and ruminate for a while to make any useful sense out of it.” He gives an example of a firm tasked with reviewing 1000 lease agreements. That would take a paralegal or team of paralegals mind-numbing days if not weeks to process. “In one brief example, 40 pages’ worth of lease agreements were filtered of their key meaning and data, which was then presented in a readable and intelligible dashboard of information, in less than two minutes.” Furthermore, the machine doesn’t get tired and doesn’t make mistakes. The real question is not whether this kind of AI will be applied in law firms – it is really only a matter of time. It is how will law firms respond? The early adopters run the risks of learning a new way of doing things and increasing costs or potentially reaping the rewards. The holdouts run the risk of consigning themselves to the obsolete pile – relying on a business model that is no longer economically viable. Only the future will tell....

AUGUST 2017 / BARTALK

nothingofficial TONY WILSON, QC

Communist Propaganda of the Shoddiest Kind There’s another anniversary coming up in 2017

ne rewarding thing I do as a Bencher is the “Bencher Interview” with articled students. I meet between 30 and 35 students a year, and discuss how their articles are going, how the Law Society works, our ethical obligations as lawyers, a few relevant discipline cases and a host of other issues. At the outset, I try to break the ice and tell them what I’d been told about why we do Bencher interviews in the first place. I tell them that in the ancient past, they were to ascertain whether the Articled Student “was now or had ever been a member of the Communist Party.” When I explain this, they seem bemused, as if I’d shared the fact that Hitler, Stalin, Freud and Trotsky lived a few miles from each other in Vienna in 1913, or that William Shatner once acted in a movie entirely in Esperanto.

As I write this, Canada is celebrating the 150th anniversary of Confederation. But there’s another interesting anniversary happening in 2017. It’s the 100th anniversary of the Bolshevik Revolution and the founding of the Soviet Union. How are the Russians going to deal with the 100th anniversary of the founding of the Soviet Union when its destruction made Russia’s oligarchic leadership filthy rich? Well, expect lots of nostalgic Soviet propaganda. My first exposure to Soviet propaganda was at Expo 67 in Montréal where, as an 11-year-old boy, I found the Soviet Pavilion to be far more interesting than any of the other pavilions. When I wanted to put my name on a mailing list for more information about the USSR, my father said no because he expected that our telephones would be bugged, our passports would be red-flagged (pun intended) and that I might be approached as a potential double agent to advise my Soviet handlers about the strategic military importance to the global 8

BARTALK / AUGUST 2017

socialist revolution of Oak Bay, BC, (and, of course, to spy on Moose and Squirrel). On a day-trip to East Berlin in 1968, I was fascinated by our tour guide raving about his socialist workers’ paradise, even though I knew that it was unbelievable propaganda. Likewise, it was hilarious to listen to Radio Moscow’s English broadcasts on our Grundig Shortwave radio in the late 60s and early 70s, knowing full well it was all Soviet propaganda. (I suppose it’s a little like watching Fox news in 2017). The problem with today’s world is that modern Russia may be even more dangerous than Soviet Russia because its use of propaganda has become far more sophisticated. When I was growing up, everyone knew it was propaganda. Now you don’t. You see, Russia maintains an army of paid Internet Trolls called “Web Brigades” to manipulate online discussion and public opinion.

Using sockpuppets to mask identities, members of these “Web Brigades” have multiple Facebook and Twitter accounts with thousands of followers. They weaponize information, spread disinformation, create conspiracy theories, spread unfounded rumors, circulate fake photographs, simultaneously back far left and far right politics; all in an attempt to sow division in our free and open society and create a hostile online atmosphere that discourages online dialogue from reasonable people. It creates a lack of faith in traditional media and political institutions, and may well have contributed, directly or indirectly, to the election of Donald Trump. Everyone should keep this in mind when the investigation into Russian interference in the last US election gains momentum. If you have been trolled on social media for your opinion, or you are shocked at the aggressiveness of online commentary, the troll may well have been operating from Moscow or St. Petersburg with thousands of other Russian trolls. And if you don’t believe me, read “The Menace of Unreality: How the Kremlin Weaponizes Information.” It’s a new form of propaganda of the shoddiest kind. Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and a Bencher of the Law Society. The views expressed herein are strictly those of Tony and do not reflect the opinions of the Law Society, CBABC, or their respective members.

guest OSCAR MIKLOS

The Civil Resolution Tribunal A new frontier in access to justice in British Columbia

n July 2016, the long-awaited Civil Resolution Tribunal (CRT) opened its doors to the first wave of strata disputes. More recently, in June 2017, this same tribunal expanded its jurisdiction to include small claims of $5000 and under. The CRT’s goals are ambitious, to say the least. It is the world’s first online dispute resolution tribunal of its kind and it aims to increase access to justice for thousands of British Columbians. So, how has the CRT fared thus far in resolving strata property matters?

IMPROVED ACCESS TO JUSTICE

Those lawyers who have had enough experience in resolving strata disputes in the pre-CRT era will acknowledge the fundamental change that the CRT has brought about in such matters. Prior to the CRT’s existence, strata home owners had virtually no cost-effective or easily-accessible options to resolve their disputes with their strata corporations. So, as far as increasing access to justice is concerned, the CRT deserves resounding approval. LIMITS OF SELF-REPRESENTATION

Like any system, the CRT is imperfect and at least one design flaw was obvious from the very beginning. The Civil Resolution Tribunal Act and the CRT’s Rules

provide a general mandatory selfrepresentation rule for parties. This self-representation rule can cause headaches for both strata owners and strata council members. Despite having legitimate causes of action, home owners and strata council members are often ill-equipped to determine the adequacy of evidence, to make legal arguments or to understand the nuances of the Strata Property Act. Moreover, it is hard to imagine that many strata council members (who are volunteers) are keen to take on the role of representing their strata corporation in legal proceedings. POTENTIAL FOR FRIVOLOUS OR UNFOUNDED CLAIMS

Another important consideration is that access to justice should have certain limits. A fundamental problem occurs when a selfrepresented party (or otherwise a party that does not have to undertake any real cost-benefit analysis before launching legal action) decides to bring a frivolous, vexatious or unfounded complaint against another party. The end result is a waste of the other party’s and the justice system’s resources – in terms of both time and money.

ADDRESSING CONCERNS

In response to the first of these two issues, the founders of the CRT may point out that the CRT’s Rules contain a broad provision allowing its tribunal members to grant requests for representation when it is “in the interest of justice and fairness.” While the CRT’s founders have indicated that this rule will be applied liberally, there has been a lack of consistency in dealing with such requests thus far. This uncertainty may dissuade some home owners from applying to the CRT in the first place. Finally, in response to the second issue, the first phase of the CRT dispute resolution process features the “Solutions Explorer” – a web-based selfhelp tool for home owners to assess the merits of their dispute before undertaking further action. This tool can clearly benefit those who would otherwise not be able to afford a consultation with a lawyer. However, given the ability to simply click “next” and to breeze through the process, it is unlikely this web application will act as a sufficient deterrent for a party with a frivolous or unfounded case and an axe to grind.

Oscar Miklos is a lawyer at Haddock & Company in North Vancouver. He regularly advises strata owners, strata council members, property managers and residential and commercial landlords and tenants in all aspects of housing disputes. Oscar is also the editor of HousingGuide.ca and StrataLaw.ca, free online references for home owners in British Columbia. AUGUST 2017 / BARTALK

sections SECTIONS ROUND-UP 2016/2017

Keep Current A Review of the 2016/17 Section Year Remote Technologies Reaching Beyond Borders

International Law

It has been an exciting year for CBABC Sections, with a flurry of meetings taking place throughout the term. This year alone, members attended 400+ Section meetings to listen to over 450 guest speakers. More than 470 lawyers of the Bar volunteered their time to take on positions of Section Executive Officers to support 75 highly active Sections, with more than 18,500+ member Section enrollments taking place. Throughout the course of the term, the CBABC awarded 335 hours of continuing professional development (CPD) through Sections.

Remote Technologies Reaching Beyond Borders CBABC has come a long uThe way in the last 15 years using

Sections and PD Join to Host Full-Day/Multi-Day Professional Development Conferences

Is your Section Interested in Hosting a Joint Professional Development Conference?

its Webinar Platform, as Section meetings and Professional Development seminars have seen a surge in increased member participation and engagement. Of the 400+ Section meetings held this term, 195 of these meetings were offered with remote access options to more than 3800+ members. With the advent of high-speed broadband and wireless networks, the CBABC has bridged the gap between the Lower Mainland and remote urban cities sprawled across BC and the Yukon, connecting members to speakers from across the country and from across international borders!

International Law This term the International

uLaw Section has continued its

tradition of inviting speakers to present to CBABC members using webinar technologies, providing

BARTALK / AUGUST 2017

valuable insights on subject matters that their distinguished speakers specialize in. This term, the Section welcomed Professor Kerry Lynn S. Nankivell of the Daniel K. Inouye Center for Security Studies in Honolulu. Speaking from Honolulu, Kerry spoke on the history, key players and legal regimes involved in the South China Sea disputes and the important question of why parties are disputing the South China Sea. More specifically, she discussed whether the use of the legal regimes has encouraged or hindered resolution of the South China Sea disputes. The Section also welcomed Professor Daniel Turp, University of Montreal, to speak to Vancouver and Victoria audiences about Canadian munition sales to Saudi Arabia and human rights, speaking on litigation he has initiated in Canadian domestic courts to challenge the export permit granted. Professor Turp spoke specifically on the domestic and international laws raised in the litigation.

Sections and PD Join to Host Full-Day/ Multi-Day Professional Development Conferences

Law – Okanagan, Solicitors’ General Practice – Central Vancouver Island, Women Lawyers Forum – Kamloops, and Criminal Justice – Vancouver Sections, to name a few, have been hosting highly successful annual conferences with CBABC Professional Development for several years. Offering substantive and procedural law, these conferences stand out as they go beyond your traditional means of acquiring mandatory CPD hours. These conferences have social

characteristics, offering you an opportunity to not only learn, but to network and socialize with other guests and respected speakers in a relaxed environment. Over the years, the CBABC has hosted formal dinners, ski trips, wine tours, spa days, BBQs, and other social activities, to take you out of the classroom so you may also build your social networks. So keep a lookout in 2017/2018 for joint Sections and PD conferences in your county.

IS YOUR SECTION INTERESTED IN HOSTING A JOINT PROFESSIONAL DEVELOPMENT CONFERENCE? Has your Section thought about holding a full or multi-day conference with a variety of esteemed speakers that cover different aspects of your Section’s legal practice area? Is your Section looking to refresh its membership base and offer an exceptional day of educational seminars along with social activities? CBABC’s Sections and Professional Development joint conferences connect lawyers in your Section to members and non-members across the province. These conferences are promoted on a large scale, with distribution of customized messaging sent through Section specific e-blasts, and PD e-blasts that target specific BC counties, and feature prominent advertising in CBABC’s News & Jobs which reaches members and non-members alike. The CBABC recognizes the importance of hosting conferences in partnership with its Sections that assist in the overall success of a Section. Take advantage of the benefit of revenue sharing with PD. It’s a win-win! Reach out to CBABC Professional Development in 2017/2018, and let’s work together to create a custom conference for your Section!

Building upon the cordiality of

uhosting full-day and/or multi-

day conferences with CBABC Professional Development; a host of Sections have provided extensive professional development for lawyers that exceed typical Section meetings which offer a maximum of two hours of CPD per meeting. Offering 6-12 hours of CPD through such conferences, these Sections target specific areas of law as practised by the collaborating Section’s membership. The Immigration Law, Family

NEW SECTION 2017/2018

UNBUNDLING OF LEGAL SERVICES SECTION Gaining popularity in Canada, unbundling is not new; lawyers have been providing unbundled services for many decades in a wide variety of practice areas. In the area of family law, providing independent legal advice on a mediation agreement is an unbundled service. Many family lawyers provide a free or flat-fee based initial consultation meeting with people who need guidance with respect to their family legal problems. That, too, is an unbundled legal service. The CBABC welcomes this newly formed Section, which will provide a forum for professional development, education, networking, peer support, information exchange and discussion regarding the effective provision of unbundled legal services (also called “limited scope” legal services) in BC.

AUGUST 2017 / BARTALK

feature KAREN ZIMMER

Privacy vs. Free Speech on the Internet An update on the right to be forgotten

n February 24, 2017 Netherland’s highest court (ECLI:NL:HR:2017:316) found that Peter de Vries – who was brought into the spotlight five years ago when an undercover video of him soliciting a hit on a rival pimp went viral and resulted in him being convicted for that attempt – had a “right to be forgotten.” Google’s argument that it was in the public interest for people to know about de Vries’ criminal activities failed. How did this happen? Three years ago the European Union’s Court of Justice in Google Spain v. AEPD, Marcio Osteja Gonzalez, C-131/12, ECLI:EU:C:2014:317 established what has become known as the “right to be forgotten.” Since then, European Union subjects can demand that Google and other search engines remove from their search results any links to otherwise lawful publications on the basis that the publication contains information which is “inaccurate,” “inadequate, irrelevant or excessive,” or “not kept up to date.” As of yet, there is no similar right in Canada. The landmark Google Spain case founded the right upon the European Union’s data protection legislation, Directive 1995/46/EC (the “Directive”). The explicit objective of the Directive is to ensure that the processing of personal data protects one’s fundamental right to privacy. 12

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Article 12 of the Directive provides a person with the right to compel a “controller” to rectify, erase or block data which does not comply with the Directive, including because it is incomplete or inaccurate. The Court in Google Spain not only found Google to be a controller of data under the Directive, but the controller of one’s Internet “profile” and thus having a more profound impact than any other publisher due to the search engine’s ability to make information which would otherwise be difficult to find readily available. In response to the right to be forgotten, Google has, as of June 16, 2017, received 734,289 delisting requests from European Union subjects.1 Google accepts, on average, approximately 43% of the requests submitted.2 Google’s delisting policy merely identifies broad and subjective criteria.3 A committee of the House of Lords has described the right as “misguided in principle” and “unworkable in practice.”4 All eyes are now turned to France where its highest court will soon be considering whether it was sufficient for Google to make infringing content inaccessible from all its European Union domains as well as block the links in the search results available to

Europeans using non-European domains, such as google.com.5 The French Data Protection Agency, responsible for enforcing the Directive, has taken the position that this is not enough, and that the links have to be made unavailable world-wide. According to the last count, there are 29 intervenors from around the world involved. MEANWHILE... IN CANADA

The idea that a European Union subject, including Peter de Vries, could have so much control over his or her Internet profile may be astonishing to Canadians. In Canada, individuals concerned about their online profile often seek remedies in defamation rather than privacy. Interlocutory injunctions to remove defamatory publications are difficult to obtain. Consider Niemela v. Malamas, 2015 BCSC 1024 where a Vancouver lawyer was unsuccessful in obtaining an injunction against Google to remove links to publications concerning his conduct as a lawyer. As the courts do in Canada, the standard test for an injunction was not applied but rather the test applicable in a defamation context, namely whether the words are so manifestly defamatory and not defendable that any jury verdict to the contrary would be considered perverse.6 In addition to dismissing the injunction application, the Court allowed Google’s crossapplication to dismiss Niemela’s claim that Google was liable as a publisher of the snippets and for hyperlinking. Google was found

to be a passive instrument, akin to a library catalogue. The closest our courts have come to date to use privacy legislation to force a search engine to de-list websites was a declaration by the Federal Court in A.T. v. Globe24h.com, 2017 FC 114 that certain websites infringed federal privacy legislation, with the expressed hope that the declaration would be used by the complainant to “persuade” Google to de-list the infringing website. The respondents in A.T. v. Globe24h.com hosted a server in Romania that republished Canadian court and tribunal decisions from CanLII.org and indexed them in searchable form so that decisions concerning personal matters would be readily obtainable. If an individual wanted to remove such search results, he or she could request from the respondents a free but snail-paced removal service or pay a fee to expedite the removal. These activities were found to infringe the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”), and not for the first time, PIPEDA was applied to a foreign organization who engaged in activities in Canada. Relying on Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265 – which has now been upheld by the Supreme Court of Canada, 2017 SCC 34 – the Federal Court noted that the fact that its order may affect activities in other jurisdictions was no bar to making the Order. The Equustek decision is not a privacy or defamation case but can play an important part in Canada maintaining jurisdiction over the Internet speech v. privacy debate. Equustek is an intellectual property case. The defendants had,

inter alia, used Equustek’s trade secrets to manufacture a competing product, which they sold on the Internet. Plaintiff’s counsel obtained a series of interlocutory injunctions against defendants, including orders that the defendants not conduct business on the Internet, but the defendants circumvented the orders, left the juris-

In response to the right to be forgotten, Google has, as of June 16, 2017, received 734,289 delisting requests from European Union subjects. Google accepts, on average, approximately 43% of the requests submitted. diction, and continued to profit from global Internet sales from unknown locations. Equustek’s counsel then obtained an injunction against Google – not a party – requiring it to globally de-list the websites. The majority of the Supreme Court of Canada recognized, when upholding the injunction, that the only way to ensure that the injunction attained its objective was to have it apply where Google operates – globally. The Court noted that there were no identifiable countervailing comity or freedom of expression concerns in upholding the order. CONCLUDING REMARKS: ASSERTING JURISDICTION IN DOUEZ V. FACEBOOK, INC. 2017 SCC 33

The sharp contrast between how courts in the European Union

and our own courts have handled Google can be explained, in my view, by the greater importance that Canadian jurisprudence places on freedom of speech over privacy. Canadian courts should be careful not to lose jurisdiction over the balancing of these competing rights on the Internet. On June 23, 2017, the majority of the Supreme Court of Canada in Douez v. Facebook, Inc., 2017 SCC 33 declined to uphold a forum selection and choice of laws clause contained in Facebook’s Terms of Use in a case where the plaintiff was relying on British Columbia’s statutory breach of privacy. The majority agreed that local courts “may be more sensitive to the social and cultural context and background relevant to privacy interests of British Columbians.” Three Justices dissented, finding among other things, that the British Columbia Privacy Act does not require special local expertise. The balancing of speech versus privacy on the Internet and jurisdictional dance shall continue.

1 google.com/transparencyreport/re movals/europeprivacy/ 2 ibid 3 ec.europa.eu/justice/data-pro tection/article-29/documentation/ opinion-recommendation/files/2014/ wp225_en.pdf 4 publications.parliament.uk/pa/ ld201415/ldselect/ldeucom/40/40.pdf 5 cnil.fr/fr/node/15790 6 Google, before the injunction hearing, did voluntarily de-list various websites.

Karen Zimmer practices at Alexander Holburn Beaudin + Lang in Vancouver and leads its Defamation and Publication Risk Management group. AUGUST 2017 / BARTALK

feature SCOTT ALLEN

Privacy Law Cannot Thwart Business Interests SCC clarifies PIPEDA for creditors

oday’s electronicallydriven economy challenges the courts to balance individuals’ personal information remaining safe and ensuring parties’ legitimate business interests are not thwarted by privacy law. The Supreme Court of Canada (“SCC”) addressed this privacy balancing act under the Personal Information Protection and Electronic Documents Act [“PIPEDA”] in its decision of Royal Bank of Canada v Trang, 2016 SCC 50 [“Trang”] and delivered a common sense ruling. PIPEDA – “consumer protection legislation for the digital economy”1 – provides rules regarding the collection, use and disclosure of personal information by organizations in the course of commercial activities.2 The general rule under PIPEDA is “consent is required for the collection of personal information and the subsequent use or disclosure of this information.”3 Consent normally means express consent; however, implied consent may be accepted in defined circumstances. Further, PIPEDA provides a list of exceptions where knowledge and consent are not required for personal information disclosure.4 The facts of Trang are that Phat and Phuong Trang (the “Debtors”) defaulted on a Royal Bank of Canada (“RBC”) loan. RBC secured judgment against the Debtors. RBC filed a writ of seizure and sale to allow the sheriff to sell the Debtors’ 14

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property, which was mortgaged with Scotiabank. The sheriff refused to proceed without a mortgage disclosure statement from Scotiabank (the “Statement”); the Statement was necessary to settle the priority between mortgagees and creditors. Scotiabank refused to provide same, claiming PIPEDA required the Debtors’ consent. RBC obtained two separate orders for an examination in aid of execution but the Debtors did not appear on either occasion. RBC then sought an order compelling Scotiabank to produce the Statement. RBC’s motion was dismissed5 and the Court of Appeal upheld the motion judge’s decision.6 The two main issues before the SCC were: (1) does the order sought by RBC constitute an “order made by a court” under s.7(3) (c) of PIPEDA? and (2) did the Debtors impliedly consent to disclosure of the Statement? The SCC found that the order sought by RBC constituted an order made by a court, thus an exception for disclosure under PIPEDA: “the intention behind s.7(3) is to ensure that legally required disclosures are not affected by PIPEDA.”7 The SCC noted the motions judge had the power to order disclosure under the inherent jurisdiction of the court based on the Debtors failing to respond to a written request

and failing to attend an examination. Further, it would be detrimental to access to justice to make RBC bring another motion: “a judgment creditor... should not be required to undergo a cumbersome and costly procedure to realize its debt.”8 The SCC also found that the Debtors had impliedly consented to Scotiabank disclosing the Statement to RBC. The SCC acknowledged that financial information is generally extremely sensitive, but sensitivity of financial information should be determined contextually.9 The information available in the Statement was available publicly and disclosure only gave certainty to calculations already possible. The SCC found the Statement was less sensitive information, and that implied consent is generally appropriate with less sensitive information. Further, RBC, as the party seeking disclosure, had a legal interest in the information and required same to exercise a legal right and was not a disinterested party, nor a curious party or one with nefarious intent.10 The Trang decision suggests that privacy laws need not obstruct legitimate, legal business interests such that debtors cannot reasonably expect that refusal to comply with an obligation to provide information would prevent a creditor from recovering the debt. Roll over footnote numbers above for more information.

1-10

Scott Allen practises at Alexander Holburn Beaudin + Lang in Vancouver and his areas of focus include Information + Privacy.

feature MARC DUMAIS

Do Corporations Have a Right to Privacy? Corporate privacy interests considered

n British Columbia, the question of whether a corporation has standing to bring a claim for breach of privacy was recently considered in Madco Investments Ltd. v. Western Tank & Lining Ltd (“Madco”).1 While British Columbia does not recognize a common law tort for breach of privacy or “intrusion upon seclusion,” a statutory right of action for breach of privacy does exist under the British Columbia Privacy Act.2 In Madco, the individual plaintiff, Mr. Ducey, was a former employee and director of the corporate defendant, Western Tank & Lining Ltd. (“WTL”). Mr. Ducey was also the owner of the plaintiff corporation, Madco Investments Ltd. (“Madco” and, together with Mr. Ducey, the “Plaintiffs”), the largest shareholder of WTL. In the underlying action, Mr. Ducey claimed against WTL and several of its corporate and individual shareholders (the “Defendants”) for, inter alia, constructive dismissal, breach of a shareholders’ agreement, and bad faith and oppressive conduct. The Defendants counterclaimed against Mr. Ducey for breach of privacy stemming from his alleged unauthorized access to the email accounts of certain WTL shareholders and employees, including in connection with emails relevant to the subject litigation.

The Plaintiffs sought to have this portion of the Defendants’ counterclaim struck on the basis that WTL, as a corporation, did not have standing to bring a claim for breach of privacy where the privacy interest that was alleged to have been breached was that belonging to WTL’s employees and shareholders, whose email accounts were allegedly wrongfully accessed. In particular, the Plaintiffs argued that breach of privacy is an in personam right and, as a result, the Defendants, and WTL in particular, could not advance a claim in privacy on behalf of its employees and sharehold-

A statutory right of action for breach of privacy does exist under the British Columbia Privacy Act.

Madco concluded that it was not “plain and obvious” that WTL, as a corporation, did not have standing to pursue an action for breach of privacy under the Privacy Act in the circumstances. The court came to its conclusion based on a plain reading of Section 1 of the Act, which provides that “it is a tort, actionable without proof of damage, for a person, willfully and without claim of right, to violate the privacy of another.” As the word “person” is not defined in the Act, the court relied on Section 29 of British Columbia’s Interpretation Act 4 (which defines the word “person” to include a “corporation”) to conclude that corporations were not clearly excluded under British Columbia’s privacy statute. While the court in Madco did not decide the issue of whether a corporation could bring a successful claim for breach of privacy under British Columbia’s Privacy Act, its conclusion that such an outcome is possible raises interesting questions about the privacy interests at stake in the corporate context, and whether the concept of privacy, as a legal principle, is or ought to be limited to human beings. 2017 BCSC 219. R.S.B.C. 1996, c. 373. 3 Madco, at para. 70. 4 R.S.B.C. 1996, c. 238. 1

ers. Implicit in the Plaintiffs’ argument was the idea that a corporation could not bring a claim for the breach of the privacy of one of its representatives. Finding that the alleged breach engaged both “individual and corporate interests,”3 the court in

Marc Dumais is an associate at Blake, Cassels & Graydon LLP in Vancouver. His practice focuses on commercial litigation, securities litigation and privacy law. AUGUST 2017 / BARTALK

feature BRAD WELDON

Dash-Cam Video and the Challenges of Consent

PIPA requires consent to use cam video

ash-cams are becoming increasingly common as they become more affordable and easy to use. Many businesses are already using them on fleet vehicles; security companies, couriers, buses and taxis may all find it tempting to use video to document work for clients or to help determine liability in collisions. If the provincial government legalizes ride-sharing services such as Uber or Lyft in BC their drivers will likely also be tempted to install cameras to record goings-on both inside and outside their vehicles. What these examples have in common is that, as commercial organizations, they are all subject to BC’s Personal Information Protection Act (“PIPA”), which regulates the collection, use, and disclosure of personal information. Video of individuals inside a vehicle or walking on a sidewalk or crosswalk is the personal information of those individuals and, with a few exceptions, can only be collected with the consent of those individuals. But can people who are just going about their daily business on public streets consent to be filmed by a car-mounted camera as it scoots past them at an intersection? Most likely they can’t. This isn’t a minor regulatory wrinkle: it means that the use of dash-cams by private sector organizations is, from any practical perspective, likely unlawful in BC.

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So what about those few exceptions I mentioned earlier? One is implied consent, which is how video surveillance may be legal in some retail stores. But that implied consent requires that everyone entering the store be notified of the surveillance, typically using a sign, giving them the option to not enter the store. This is obviously not practical for a moving vehicle. Another exception is for the collection of personal information to be authorized by law, such as by a statute like the BC Passenger Transportation Act, which authorizes

This isn’t a minor regulatory wrinkle: it means that the use of dashcams by private sector organizations is, from any practical perspective, likely unlawful in BC. taxis to use interior video surveillance by Order of the Passenger Transportation Board. You’re probably thinking something along the lines of “but this is video of people in

a public space, who can’t possibly have an expectation of privacy on a public street.” Surprising to many, PIPA does not have an exception to the requirement for consent where this kind of collection occurs in public. In most instances an organization must have your consent to collect your personal information whether or not that information is publically available. How does this apply to the many private individuals driving around using dash-cams, or recording video using a smartphone? In BC, if those individuals are acting in a domestic capacity, or are not an “organization” under PIPA, they are not subject to that Act’s privacy protective principles. This means that while your neighbour can record video of you while you’re in your front yard, a courier delivering your mail-order package can’t capture that same scene on a dash cam. The Information and Privacy Commissioner has released guidelines on the use of Overt Video Surveillance in the Private Sector, available at oipc.bc.ca/guidance/ guidance-documents. If you are concerned that an organization has collected your personal information without your consent you can file a complaint with the Office of the Information and Privacy Commissioner at oipc.bc.ca. Brad Weldon is the Director of Policy at the OIPC. He is particularly interested in the privacy challenges posed by emerging technologies.

feature LISA PICOTTE-LI

Technology Use and Privacy at Work It’s none of their business

n one Internet second, an estimated 7,672 tweets are posted, 61,247 Google searches are submitted, and 2,604,001 emails are sent. A lot of this happens at the workplace. A lot of this is the workplace. But a lot of this is also the blurred line between workplace and personal space. Technology has changed nearly everything in our lives. With growing numbers of flexible work arrangements, remote employees, and individuals working after hours, the balance between an employee’s expectation of privacy and an employer’s need to ensure that work is being done efficiently and safely becomes increasingly difficult to manage. Individuals expect some privacy at work, even if they are using their employer’s equipment, but employers also need to ensure that technology is being used for proper purposes. Less than a decade ago, employers had broad rights to monitor employees’ use of technology and networks, frequently tying ownership of information to ownership of property. But times were different a decade ago; Apple was about to launch the iPhone, Facebook and Twitter went global, Kindle and Android were released, and Google bought YouTube. Technology changed, the law needed to as well. In 2012, the Supreme Court of Canada decided R. v. Cole, 2012 SCC 53, a criminal case where a high school teacher was accused of having illegal content on his

employer-issued laptop. In finding that the circumstances supported the objective reasonableness of the accused’s subjective expectation of privacy, the Court held, “Computers that are reasonably used for personal purposes – whether found in the workplace or the home – contain information that is meaningful, intimate, and touching on the user’s biographical core. Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected. Ownership of property is a relevant consideration, but is not determinative.” An employer who provides technology to its employee does not gain the right to intrude upon the employee’s privacy. This is particular true for information that touches on the employee’s “biographical core.” The approach of labour arbitrations has been to consider whether there are adequate reasons for breach of employees’ privacy rights, alternative and nonintrusive measures for achieving accountability, and whether employees are informed of acceptable use policies that are fair and nondiscriminatory. Additionally, where information is publicly available, such as on an employer intranet, there is no expectation of privacy.

So how to reconcile employees’ privacy rights with an employer’s right to manage the workplace? There should be a clear written policy, signed and agreed to by employees, which sets out expectations and acceptable use. An effective policy should be reasonable and include, at minimum, the following parameters: a statement that technology provided by the employer, including “bring your own device” technology, is for work purposes; guidelines for acceptable personal use, including express limitations for uses that are inappropriate such as abusive and offensive communications; a clear prohibition against uses contrary to legislation and legal obligations, for example, human rights codes and use of copyright material; and an express warning that employees who breach the policy may be subject to discipline. In all cases, the employer should narrow the scope of when access to employee information and devices, including employer-issued devices, is necessary. If employers allow workplace computers for personal use, then employees have a reasonable expectation of privacy. A prudent employer will implement policies and procedures for addressing business needs while respecting employees’ privacy expectations. The balance is best considered against the test of reasonableness and there is no question that employers who snoop on employees without justification will be found to have acted unreasonably. Lisa Picotte-Li is Acting Director, Legal Services at the British Columbia Safety Authority. AUGUST 2017 / BARTALK

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feature ARCHANA AGGARWAL

Anti-Spam Legislation and Related IT Issues Recent developments with CASL

anada’s anti-spam legislation (“CASL”) came into effect on July 1, 2014 and applies to all for-profit and non-profit organizations in Canada. Since this legislation came into effect, provisions have been implemented on an ongoing basis. For instance, rules regarding the installation of computer programs (anti-malware provisions) came into force January 15, 2015, and requirements surrounding a private right of action were due to come into effect July 1, 2017. In a last-minute announcement in June, the Government of Canada suspended the provisions allowing for a private right of action in response to widespread concerns by business and non-profit organizations who would be at considerable risk of legal action for perceived violations of CASL. These rules allowing for a private right of action would have allowed individuals to pursue legal action against any individual or organization that they felt violated CASL through either an act or omission. Affected individuals would have had the ability to bring an action against an organization, its directors, officers and agents and pursue compensatory and statutory damages. These provisions were suspended pending a parliamentary review to ensure that the interests of consumers and their right to privacy 20

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were balanced with the rights of business, charities or non-profits. On one side, consumers deserve the protection CASL affords from businesses sharing or selling personal contact information without authorization and an avenue of recourse if consumers are adversely affected by a breach of CASL. On the other side, there remain concerns that the private right to action provisions are too onerous for businesses and non-profit groups and have the potential to place undue cost and burden on them as they work toward maintaining compliance with the legislation. While this review is underway, businesses, charities and non-profit organizations should take this opportunity to review their anti-spam compliance policies and ensure their IT communications are in line with the requirements of CASL. IT REQUIREMENTS OF CASL

CASL prohibits organizations from sending out Commercial Electronic Messages (e.g. emails where some if not all of its purpose is to encourage participation in commercial activities) without: first obtaining the recipient’s consent, presenting optout requirements and highlighting “cookie” notifications. When obtaining consent, a client must provide express consent to

receive the electronic messaging and must choose to opt-in to the messaging. This consent can be provided in writing and should be documented. Requests for consent must also identify that consent can be withdrawn. Messaging must contain the identity of the sender with contact details, and include an unsubscribe function that allows a quick, easy and no-cost mechanism to unsubscribe to the mailing list. Once a request to unsubscribe is received, it must be acted upon without delay. “Cookie” notifications refer to data stored on a client’s computer that can be used by a service to track visits and activities. Organizations can only install cookies on client computers if users are first notified and afforded the opportunity to opt-out. A final area of note regarding CASL is the importance of record keeping. Organizations should ensure records are kept regarding any commercial electronic messaging they send out in order to respond to client concerns. Records should also be kept of all unsubscribe requests and actions and evidence of express consent for those who agree to be part of that mailing list. This will help ensure compliance with CASL and prepare organizations pending the outcome of the parliamentary review on private rights of action. For more information, please see the Government of Canada’s website on CASL: fightspam.gc.ca. Archana Aggarwal is Regulatory Affairs Counsel at the BC Safety Authority.

feature MENACHEM FREEDMAN

A New Expression for Privacy Rights in Canada? BCCLA raises free speech in R v Marakah

v Marakah is a case about two arms dealers, Marakah and the serendipitously named Winchester. An unfortunate text message conversation between the two has become the next salvo in the battle for privacy rights in Canada. The pair had arranged an arms deal over Short Message Service (SMS). Marakah deleted the conversation and urged Winchester to do the same, but he did not. The police subsequently seized and searched both of their phones without legal authorization. The text messages on Winchester’s phone were a fundamental part of the case against Marakah, and he challenged the search under section 8 of the Charter, claiming a violation of his right to be free from illegal search and seizure. The case reached the Ontario Court of Appeal, where the majority found that Marakah did not have standing to challenge the search, because he had no reasonable expectation of privacy in text messages on the phone of another party. However, LaForme JA disagreed with the majority and sided with a majority decision of the BC Court of Appeal in a case with similar facts, R v Pelucco. Marakah appealed to the Supreme Court of Canada (“Supreme Court”) and the case was heard last March. In a sense, the Supreme Court is again being called to rule on the

“third party doctrine.” This American legal theory states that there can be no search and seizure of information which is no longer under the control of its author. The challenge faced by Marakah and the interveners is arguing that an individual’s section 8 right to be free from search and seizure can be violated when the police search and seize the property of another individual entirely. What is certain is that, whatever the Supreme Court decides, it will have effects that go far beyond text messages and police seizures of phones. Rightly or wrongly, the Supreme Court’s section 8 jurisprudence on

BCCLA provides an important reminder that privacy is not only important for the abuses it prevents, but for the space it creates. privacy has found its way into many other fora, such as labour and employment law, family law and tort. This criminal law decision could have sweeping effects on the way businesses, private individuals and judges in civil cases consider the use and abuse of private information. This begs the question: does section 8 have broad enough shoulders to carry such a heavy burden?

Should the Supreme Court’s most important decisions on the right to privacy continue to be constrained by cases with difficult facts and serious allegations of criminality, as well as an increasingly stretched definition of search and seizure? In a unique intervention, the British Columbia Civil Liberties Association (“BCCLA”) points to a new anchor for privacy rights in the Charter: section 2(b). Freedom of expression is only possible when people can share their thoughts, however intimate or outlandish, in private conversations. Whereas section 8 is rooted in physical and proprietary concerns of search and seizure, section 2(b)’s focus is on creating private spheres where open dialogue is possible. This is new, but fertile ground for the Supreme Court to continue to elaborate the right to privacy in an age where a person might have more intimate information on a computer server in California than in their bedroom or desk drawer. Simply put, free expression requires a speaker and a listener, and these expressions – in whatever medium – cannot be engaged in freely if they are subject to invasion by law enforcement. In its intervention, BCCLA provides an important reminder that privacy is not only important for the abuses it prevents, but for the space it creates: a space where individuals can experiment and take risks, in the reasonable belief that the state will not intrude. Menachem Freedman is an associate at Moore Edgar Lyster, where he works in labour, employment, privacy and human rights law. AUGUST 2017 / BARTALK

guest DENNIS J.K. NKOJO

My Professional Journey From Uganda to BC

n March 6, 2017, I was pleasantly surprised to receive an acknowledgement letter and customized lapel pin from Michael Welsh, President of CBABC in recognition of my valued membership for the past five years. As a foreign-trained lawyer, I first joined CBABC as a student member while I pursued the Federation of Canadian Law Societies’ Certificate of Qualification (“NCA”). The CBABC became an invaluable resource for my professional journey, one whose contribution I cannot over emphasize. I completed my law degree in Uganda, a lush and beautiful country in East Africa almost the size of British Columbia. Like Canada, Uganda was a British colony (got independence in 1962) that inherited a British education and judicial system. Many professional immigrants to Canada have riveting stories to tell about their unique experiences in the pursuit of professional integration. Mine is no different. Preparing for the NCA examinations in 2011 was challenging because of the limited resources beyond what the NCA provided. The forums on the CBABC website thus became my lifeline. I was later accepted to enroll for an

BARTALK / AUGUST 2017

examination preparation course at the Osgoode Hall of Law at York University. In January 2012, for four consecutive days, I sat for all my NCA challenge exams, and

neighbour’s house destroying my entire home (course-notes included) and leaving me and my family homeless for more than a year. Becoming a lawyer might not have been possible without the various CBABC resources, plus the kind and insightful advice offered by some senior practitioners in the profession. I am eternally grateful to these people. In 2016, I received an award from the BC Association of Social Workers for Child and Youth

Murchison Falls in Uganda

by God’s grace, successfully completed them on the first attempt. The next hurdle was to find articles before I could be admitted to the Law Society of British Columbia Bar Course (“PLTC”). It took about 200 different applications (I kid you not) and 19 months of patient and consistent networking, plus diligent commitment as a Legal Advocate at Parent Support Services Society of BC to finally land a spot at a law firm. David Paterson, of HumphryPaterson and Co. as it was then known, accepted me as his articling student in December 2013, eventually leading to my call in March 2015. But that call to the Bar was almost ruined by a fire (two weeks to the final exams) that started at my

Advocacy. As I continue to search for my most fulfilling career path, I want to publically thank the CBABC for its continued support. I have an interest in child protection, family law, public policy and ADR. I urge fellow members to be more accessible to colleagues who may be in need of their guidance and assistance. Sometimes, even just a word of acknowledgement and encouragement can provide the motivation to keep striving for better. In my humble opinion, this kind of collegial support positively impacts the diverse communities all over Canada, especially as we celebrate 150 years since Confederation. Dennis J.K. Nkojo, Barrister & Solicitor and CBABC member.

news&events BC LEGISLATIVE UPDATE

ACTS IN FORCE

Since April 26, 2017, there are no regulations to bring a section or statute into force. Legislative Updates are available exclusively to CBA members at cbabc.org.

CBA NATIONAL MAGAZINE

SCC Rules Against US Tech Giants: “The Internet Has No Borders” It was a bad week for two Internet giants at the end of June. Both Facebook and Google lost landmark decisions at the Supreme Court of Canada, with the top court ruling against Google in a case involving de-indexing websites, and against Facebook in a case about forum selection.

The pair of rulings signal a move to establish that just because these tech giants are headquartered in California – or elsewhere – it doesn’t mean they can wiggle out from under Canadian legal jurisdiction. Read the full article

NOTICES TO THE PROFESSION

Practice Directives and Changes May 16, 2017 View the new Criminal Practice Direction regarding introducing evidence containing high potency narcotics (CRIM 10) issued by Chief Judge Crabtree.

June 7, 2017 View the new General Practice Direction regarding identification of counsel or commissioner for taking affidavits (GEN 03) issued by Chief Judge Crabtree.

June 1, 2017 View the new Notice to the Profession and Public regarding changes to provincial court civil jurisdiction and procedures (CRT) (NP 12) issued by Chief Judge Crabtree.

June 28, 2017 View the new Criminal Practice Direction regarding scheduling conflicts between Provincial Court and the Supreme Court (CRIM 11) issued by Chief Judge Crabtree.

NOTICE TO THE PROFESSION

Judicial Council to Adopt Online System for Appointment Applications June 20, 2017 VANCOUVER, BC: On September 5, 2017, the Judicial Council of BC will adopt an online application process for all Provincial Court appointments: Judge, Judicial Justice, and Justice of the Peace. Paper applications will not be accepted after this date. Therefore, candidates for any of these appointments should complete and submit a paper application before Labour Day, or wait until September 5 to begin the process online. Starting September 5, 2017, all online application forms will be available on the Provincial Court website: provincialcourt.bc.ca. Watch the website and eNews for more information.

AUGUST 2017 / BARTALK

news&events SENATE COMMITTEE REPORT ON CONNECTED CARS The Senate Transport and Communications Committee began hearings earlier this year into autonomous and connected vehicles, with its report due to federal Minister of Transportation Marc Garneau by the end of 2017 (the “Senate Report”). Privacy matters are chief among the issues being considered by the Senate committee. Numerous panels of government officials and Privacy Commissioner of Canada Daniel Therrien have made statements to the Senate Committee, alongside the BC Freedom of Information and Privacy Association (“FIPA”). FIPA highlighted the privacy concerns of data being collected by automakers and their “partners” in connected cars of today and the future. FIPA referred to its report published in 2015 The Connected Car: Who is in the Driver’s Seat? (the “FIPA Report”). The FIPA Report has been cited on numerous occasions and most notably, was cited in both applicant and respondent’s arguments in the 2016 Supreme Court of Canada leave application Wayne Rodney Fedan v R (14 July 2016), 36970 (SCC). Privacy law practitioners should stay tuned to the publication of the Senate Report and its findings.

TIPS FROM

NEWS, INVESTIGATIONS, RULINGS, AND MORE FROM OPC AND OIPCBC Practitioners can subscribe to the RSS feeds of both the federal Office of Privacy Commissioner of Canada and the Office of the Information and Privacy Commissioner for British Columbia. By subscribing to the feeds, practitioners will be alerted to applicable news, investigations, rulings, reports and advice to parliament issued by these respective offices.

NEWS

CLEBC Update BC ADMINISTRATIVE LAW PRACTICE MANUAL CLEBC’s BC Administrative Law Practice Manual provides a unified resource for lawyers, decision-makers, and judges in administrative law proceedings, judicial review, statutory appeals, and stated cases. Divided into two parts, the first half of BC Administrative Law Practice Manual explores practice and procedure at both federal and provincial administrative

BARTALK / AUGUST 2017

hearings. The second half of the manual addresses review of administrative law decisions by both federal and provincial courts. With this resource, you will find detailed guidance on how to: navigate decision-makers governed by administrative law principles and the different types of decisions in the administrative law process prepare for and effectively present evidence at an administrative hearing deal with issues following an administrative hearing such as penalties, fees and costs commence judicial review proceedings, and determine in which court to do so

CBABC MENTORSHIP PROGRAM

Calling All Lawyers: Be a Mentor CBABC is actively recruiting enthusiastic lawyers to join an exceptional roster of colleagues to lead new law students, as well as women and Aboriginal lawyers through the maze of legal life. Give the gift of your experience and sign up to get involved in one of these rewarding programs. Volunteers are needed now for the student mentorship programs this fall at Peter A. Allard School of Law, UBC and the Faculties of Law at UVic and TRU. Check out other opportunities with the CBABC Women Lawyers Forum and the CBABC Aboriginal Lawyers Forum. Sign up today at cbabc.org/mentorship

prepare for, argue and appeal a

judicial review deal with unrepresented

litigants and much more!

BC Administrative Law Practice Manual is available as a print + online package, or as an online-only subscription. All of CLEBC’s online publications are fully searchable and include links to full-text cases and legislation. For more information, call CLEBC customer service at 604-893-2121 or visit cle.bc.ca/ bcadminlaw today.

BRANCH & BAR AWARD NOMINATIONS

Georges A. Goyer, QC Memorial Award for Distinguished Service Nominations are now open for the 2017 Georges A. Goyer, QC Memorial Award for Distinguished Service. This CBABC award recognizes exceptional contributions or achievements by a BC resident to the legal profession in British Columbia. Nomination deadline is Friday, September 29, 2017 at 4:30 p.m.

For details, visit cbabc.org/awards

Calendar

AUGUST

6 Lawyers With Pride – 2017 Pride Parade — Vancouver

2017 Bench & Bar Dinner Tuesday, November 7 at the Fairmont Waterfront Hotel, Vancouver Members and non-members are invited to join the CBABC Executive and Law Society Benchers in paying homage to those who have made outstanding contributions to the cause of justice in BC.

uuu Click here for more details For details, visit

Indigenous Legal Issues...

by FRANCES ROSNER

CORRECTIONAL SERVICE OF CANADA’S FAILING REPORT CARD: Misconceptions that Lengthier Prison Sentences Contribute to the Rehabilitation of Indigenous Offenders How often has defence counsel heard sentencing judges utter the words “these circumstances warrant a sentence in the federal range to ensure that this (Indigenous) offender has access to the necessary programs and services that will aid in their rehabilitation?” The degree to which the Correctional Service of Canada (“CSC”) is able to meet its rehabilitative mandate respecting Indigenous offenders has been the subject of much criticism. Several reports implicate the CSC as failing in its legislative mandate to offer Indigenous offenders culturally appropriate and timely access to rehabilitative programs. This failure then serves as an impediment to the successful and timely reintegration of Indigenous offenders into the community. Collectively, these failures exacerbate the overrepresentation of Indigenous peoples in our jails counter to the Supreme Court of Canada’s direction in R v. Gladue and R v. Ipeelee. Further public safety and the concept of “safer streets” is also put in jeopardy. In a recent decision, R. v. Taylor, The Honourable Judge Cozens rejected the notion of imposing lengthier sentences for rehabilitative purposes. He said that this proposition “relies on the assumption that such programming is actually going to be provided in a meaningful and constructive manner.” Therefore, when arguing against the imposition of jail or lengthier sentences for Indigenous offenders, it will be helpful for counsel to keep the following armory in their toolbox: Corrections

and Conditional Release Act, S.C. 1992, c. 20, s. 3 v. Taylor, 2017 YKTC 3 Preparing Indigenous Offenders for Release—Correctional Service of Canada, 2016 Fall Reports, Auditor General of Canada Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act, March 7, 2013 Truth and Reconciliation Final Report – Calls to Action R

AUGUST 2017 / BARTALK

grantsapproved LAW FOUNDATION OF BRITISH COLUMBIA

$80,000 FORT ST. JOHN WOMEN’S RESOURCE SOCIETY

Poverty Law Advocacy Program $80,000 KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETY

Poverty Law Advocacy Program

Funding totalling $2,697,000 was approved for the following 23 continuing programs at the June meeting of the Board of Governors: $295,000 GREATER VANCOUVER LAW STUDENTS’ LEGAL ADVICE SOCIETY

Law Students’ Legal Advice Program $265,000 DISABILITY ALLIANCE BC SOCIETY

Advocacy Access Appeals Program & CPP Disability Advocacy Program $232,000 BC BRANCH OF THE CANADIAN BAR ASSOCIATION

Dial-A-Law / Lawyer Referral Service / Law Week $175,000 ECOJUSTICE CANADA SOCIETY

BC Litigation Program

ABBOTSFORD COMMUNITY SERVICES SOCIETY

$160,000 – Regional Community Legal Advocacy Program $110,000 – Legal Advocacy Program $160,000 KETTLE FRIENDSHIP SOCIETY

Mental Health Legal Advocacy Program $160,000 TOGETHER AGAINST POVERTY SOCIETY

Legal Advocacy Programs

$120,000 MPA – MOTIVATION, POWER & ACHIEVEMENT SOCIETY

Aboriginal Legal Advocate Program $80,000 MOSAIC

Legal Advocacy Program $80,000 NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETY

Legal Advocacy Program $80,000 PENTICTON AND AREA ACCESS SOCIETY

Poverty Legal Advocacy Program $80,000 PORT ALBERNI FRIENDSHIP CENTER

Outreach Legal Advocacy Program $70,000 SOUTH PEACE COMMUNITY RESOURCES SOCIETY

Outreach Legal Advocacy

Remote Services Project $40,000 CANADIAN CENTRE FOR POLICY ALTERNATIVES

Aligning BC Policy-making with the United Nations Declaration on the Rights of Indigenous People (UNDRIP) $40,000 NATIVE COURTWORKER & COUNSELLING ASSOCIATION OF BC

Finding Solutions Initiative: Better Justice Outcomes for Indigenous Families $40,000 PARENT SUPPORT SERVICES OF BC

Provincial Legal Education Workshop for Frontline Workers working with Indigenous families – on Kinship Care, MCFD Policy and Family Law Project

Bella Coola Legal Advocacy Program

Sex Worker Legal Assistance Program

$20,000 PROVINCIAL COURT OF BRITISH COLUMBIA

$40,000 WEST COAST LEAF ASSOCIATION

Provincial Court Judicial Internship Circuit Court Program

$85,000 NELSON CARES SOCIETY

Funding totalling $497,000 was approved for the following 16 projects:

$80,000 ACTIVE SUPPORT AGAINST POVERTY

$50,000 NIDUS PERSONAL PLANNING RESOURCE CENTRE ASSOCIATION

$80,000 CHIMO COMMUNITY SERVICES SOCIETY

Outreach & Advocacy Program

Standardized Core Education Materials for Making and Using Personal Planning Documents

$80,000 CONTACT WOMEN’S GROUP SOCIETY

$50,000 PEOPLE’S LAW SCHOOL SOCIETY

Legal Advocacy Program

PLS Content Innovation 2017/18

BARTALK / AUGUST 2017

$45,000 RISE WOMEN’S LEGAL CENTRE

$40,000 PROVIDING ALTERNATIVES COUNSELING & EDUCATION (PACE) SOCIETY VANCOUVER

Court Services Program

Legal Advocacy Program

Comprehensive Community Safety Plan for Vulnerable Aboriginal Women

$45,000 SOCIAL HEALTH & ECONOMIC DEVELOPMENT SOCIETY OF BELLA COOLA

Additional one-time $5,000 grants were made to advocacy programs as a response to the recent salary review.

The Advocacy Centre – Poverty Law Advocacy

$80,000 KI-LOW-NA FRIENDSHIP SOCIETY

$45,000 FORT ST. JOHN WOMEN’S RESOURCE SOCIETY

Only Yes Means Yes Project $35,000 WEST COAST PRISON JUSTICE SOCIETY

The Use of Force in Prison Justice Project $32,000 FIRST CALL: BC CHILD AND YOUTH ADVOCACY COALITION

BC Child Labour Standards Improvement Project, Phase 2 PETER A. ALLARD SCHOOL OF LAW UNIVERSITY OF BRITISH COLUMBIA

$15,000 – Pilot Project Focused on Expanding the LSLAP for Credit Program $7,000 – Mining Justice: A Conference on Corporate Accountability and Legal Reform Project

LAW FOUNDATION OF BRITISH COLUMBIA

$7,000 CANADIAN SUPERIOR COURTS JUDGES FOUNDATION

Enhancement of ‘Try Judging’/’Essayez de Juger’ $6,000 KELOWNA COMMUNITY RESOURCES SOCIETY

Legal 101 Project $5,000 CEREBRAL PALSY ASSOCIATION OF BC

Mental Health in the Workplace: Rights and Responsibilities for Youth with Disabilities

Funding totalling $405,000 was approved for the following seven grants: $180,000 SOCIETY FOR CHILDREN & YOUTH OF BC

Children’s Lawyer Initiative $80,000 OPPORTUNITIES CAREER SERVICES SOCIETY

Poverty Law Advocacy Program $75,000 BC BRANCH OF THE CANADIAN BAR ASSOCIATION

Rural Education and Access to Lawyers (REAL) Initiative $30,000 SOUTH PEACE COMMUNITY RESOURCES SOCIETY

Northern Navigator Family Mediation Project – Extension $20,000 TENANT RESOURCE AND ADVISORY CENTRE SOCIETY

Tenant Survival Guide Rewrite, Reprint and Distribution Project $10,000 JUSTICE EDUCATION SOCIETY OF BC Collaboration Funding $10,000 PEOPLE’S LAW SCHOOL SOCIETY

Collaboration Funding

Funding totalling $254,000 was approved for the following eight Legal Services Society / Law Foundation Legal Research grants:

Legal Research Fund The Law Foundation of British Columbia has established a fund of $100,000 per year to support legal research in British Columbia. The purpose of the fund is to support legal research projects that “advance the knowledge of law, social policy, and the administration of justice.” The maximum amount available for each project is $20,000. To be considered, please submit a Letter of Intent by September 8, 2017 for consideration at the November Law Foundation meeting, by mail, courier, fax, or email. For more information about the Fund please refer to the Law Foundation of BC website at lawfoundationbc.org.

LEGAL SERVICES SOCIETY

$75,000 – MyLawBC Evaluation Project $25,000 – User Testing for MyLawBC and Family Law Website Videos Project $35,000 JUSTICE EDUCATION SOCIETY OF BC

Machine Translation and Legal Help Research Project $17,500 RISE WOMEN’S LEGAL CENTRE

Evaluation of the Family Law Program TIM ROBERTS AND ASSOCIATES CONSULTING

$9,000 – Triple Aim Measurement Framework Project $6,500 – Evaluation of Family Law Pilot Programs Project

$77,000 LAW SOCIETY OF BC

$9,000

Cost of Legal Service Delivery Research Project

Access to Justice Metrics Project Extension

YVON DANDURAND

WHAT ARE YOUR TOP FIVE? FIVE BEST LINES FROM LEGAL MOVIES 1. “Mister Hart, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer.” – The Paper Chase (1973) 2. “I’m Your Dream Client. I’m the most fun, I’m rich and I’m always in trouble.” – The People v. Larry Flynt (1996) 3. “I discovered the law again. You actually made me think about it. I managed to get through three years of law school without doing that.” – The Firm (1993) 4. “It’s that every now and again—not often, but occasionally—you get to be a part of justice being done. That really is quite a thrill when that happens.” – Philadelphia (1993) 5. “The odds of a plaintiff’s lawyer winning in civil court are two to one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than winning a case at trial. Twelve times better.” – A Civil Action (1998) Send bartalk@cbabc.org your top five list(s) and we will publish them in an upcoming issue.

AUGUST 2017 / BARTALK

professionaldevelopment

WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\

CBABC Professional Development has hosted 32 programs this term, 14 of which were hosted as webinars and are currently available for repeat viewing. The CBABC has joined with your Local County Bar Associations to bring you 85 guest speakers, offering 70 hours of CPD, 31 of which counted toward your required ethics, professional responsibility and practice management component for your Law Society of BC reporting. We would like to take this opportunity to thank the CBABC Professional Development Committee, our 10 Local County Bar Association partners, the Department of Justice Canada, and our partnering Sections. These partners are an integral part in developing Professional Development programming past and present, and we look forward to building upon these relationships to bring PD programming to your county in 2017/2018.

Featured Webinars from 2016/2017 The CBABC hosted a variety of webinars on developments in the legal community this term, a few of which are summarized below. If you missed the opportunity to watch these webinars live, you can purchase these and other recordings by visiting CBABC On-Demand.

The Building Act Section 5 of the new Building Act changes local government authority to set technical building requirements. Be on notice that if a matter is regulated in a provincial building regulation, any requirements for that matter established in bylaws by local governments will be of no legal force at the end of the transition deadline of December 15, 2017. Prior to December 15, 2017, local governments are strongly encouraged to take advantage of this transition deadline to review, amend or rescind their bylaws that impose technical building requirements for matters that are not unrestricted.

BC’s Franchises Act The BC Franchises Act and Franchises Regulation came into force February 1, 2017, with a brand new statute and regulations that will govern franchises in BC. Our experienced presenters featured scenario-based learning that used practical examples for avoiding common pitfalls, and offered helpful take-aways. This webinar detailed the new rights, duties and remedies that will affect your clients, be they franchisors or franchisees.

Liquor Control and Licensing Act Effective January 23, 2017, the new Liquor Control and Licensing Act is in force. In discussing licensing, trademarks and labelling, this webinar repeat is a must watch if you have clients who are in the wine, brewing, distilling, hospitality or tourism industries. Following the success of this webinar, Michael Welsh, CBABC President 2016/2017, & VQA wine judge, and Christopher Wilson, Norton Rose Fulbright, are coming to Vinoteca on the Vineyard in Duncan to explore wine industry legal issues in person on September 28, 2017. Register today and enjoy wine on the vineyard as we navigate the new Liquor Control and Licensing Act.

Upcoming Webinar The rules concerning notices of application changed in 2010 and lawyers have been getting themselves into trouble ever since. Join us as The Honourable Madam Justice Heather MacNaughton and senior members of the Family and Civil Bar present on how to successfully draft your Chambers materials. Register today!

CPD On-Demand – When there are not enough hours in the day! Are you looking to complete you mandatory CPD and ethics requirements but can’t seem to find the time? CBABC’s CPD On-Demand offers you a wide selection of previously recorded programming with self-paced quizzes that are accessible to members and non-members. Visit our newly revamped, user-friendly CPD On-Demand page today and get your access in an instant!

BARTALK / AUGUST 2017

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barmoves Who’s Moving Where and When

Louise Lam

Shahdin Farsai

has joined Connect Family Law (Vancouver), where she continues to advise clients on all aspects of family law and estate litigation matters, including those involving complex financial issues.

is a member of Miller Thomson’s Commercial Litigation group. Her experience includes corporate and contractual disputes, debt recovery, construction claims, insurance defence and other business litigation disputes.

Gal Smolar

Megan Young

has joined Miller Thomson’s Vancouver office as counsel. Gal is a globally experienced corporate technology lawyer.

is a member of Miller Thomson’s Commercial Litigation group. Megan has experience in environmental and Aboriginal matters, contract disputes, insurance defence, construction claims and other business litigation disputes.

Larissa A. Dziubenko

Stephanie Leong

has joined Edwards Kenny & Bray LLP as an associate. She has a solicitor’s practice in business law and helping Fintech clients navigate the complex nexus of emerging technology, corporate law and regulation.

has joined Heather Sadler Jenkins LLP’s Prince George office as an associate lawyer practising in the areas of Corporate, Commercial, Real Estate, and Wills and Estates.

Dharampreet Dhillon

Jordan Thorne

has joined McMillan LLP as an associate with their Commercial Real Estate group. Dharampreet was called to the BC Bar on May 30, 2017.

has joined Heather Sadler Jenkins LLP’s Prince George office as an associate lawyer practising as a litigator.

Joanna Dawson

Daniel Kozera

has joined the Business Law group of McMillan LLP in Vancouver. Joanna is a 2012 call to the British Columbia Bar and will practise corporate, commercial and maritime law.

joined Harper Grey as an associate practising in the areas of Aviation, Commercial Litigation, Defamation, Media & Privacy and Health Law.

BARTALK / AUGUST 2017

Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1708.

Laura Miller joined Harper Grey as an associate practising in the areas of Health and Insurance Law.

Brett Weninger joined Harper Grey as an associate practising in the areas of Commercial Litigation, Health, Insurance and Professional Regulation Law.

Miranda Lam Litigation partner at McCarthy TĂŠtrault, has been appointed Vice Chair of the Vancouver Foundation Board of Directors.

newmembers May & June 2017 Associate Linda Russell

Continuing Legal Education Society of BC Vancouver

Mahla Keshmiri

Gowling WLG (Canada) LLP Vancouver

Alexander Holburn Beaudin + Lang LLP Vancouver

Shahhin Asiaee ICBC Vancouver

Ramanjot S. Atwal

Whitelaw Twining Law Corp. Vancouver

Braden W. Lauer Sarah Lumsden Fasken Martineau Vancouver

Joanna R. Medjuck

Crown Counsel-Vancouver Vancouver

Martin Ngalim

Bo R. Baharloo

ICBC Vancouver

Webster Hudson & Coombe LLP Vancouver

Kareitha Osborne ICBC New Westminster

Meagan Berlin

Nicolas Pimentel

Woodward & Company LLP Victoria

Robert Biggar

Borden Ladner Gervais LLP Vancouver

DLA Piper (Canada) LLP Vancouver

Christopher Dyson

Dyson Law Corporation Vancouver

Alexander Holburn Beaudin + Lang LLP Vancouver

Salvador Pimentel

Borden Ladner Gervais LLP Vancouver

Shiva Pritchard

Miller Thomson LLP Vancouver

Clara Rozee

Fasken Martineau Vancouver

Avichay Sharon Vancouver

Angeli Ferrer

Leah B. Shepherd

Aydin Bird Business Lawyers Vancouver

Hakemi & Ridgedale LLP Vancouver

Bryan Fitzpatrick

Shivani Sidhu Port Coquitlam

Pushor Mitchell LLP Kelowna

Clayton Gallant has joined Miller Thomsonâ&#x20AC;&#x2122;s Vancouver office as an associate. Shiva practises banking & corporate law, and mergers & acquisitions.

ICBC Vancouver

Scott Allen

Anthony Cortese

Shiva Pritchard

Hans Hwang

ICBC Vancouver

Gudmundseth Mickelson LLP Vancouver

joined Hammerberg Lawyers LLP as an associate where he continues to practise primarily in the areas of corporate, commercial, real estate, estate planning and estates.

DS Lawyers Canada Vancouver

Lawyers

Victoria Broughton

Christopher P.G. Ness

Ai Yin Huang

Gudmundseth Mickelson LLP Vancouver

Banreet Garcha Koffman Kalef LLP Vancouver

Neeta Gill

Hamilton Duncan Surrey

Peter A. Hagel

Hamilton Duncan Surrey

Parmvir J. Singh

Dominion Law Group Surrey

Emily J. Snow

DLA Piper (Canada) LLP Vancouver

Tikka G. Sodhi

McQuarrie Hunter LLP Surrey

To view all new members, please visit cbabc.org/bt/nm_1708. AUGUST 2017 / BARTALK

RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3