BarTalk | April 2019 by The Canadian Bar Association, BC Branch

April 2019 | bartalkonline.org

Administrative Law WORKSAFEBC AND JUDICIAL REVIEW | TRANSIT AUTHORITY

FROM THE PRESIDENT MARGARET A. MEREIGH

Taking Innovation to the Profession

aking Innovation to the Profession was a key message at our February 2019 Provincial Council.1 It is a message that I and others would like to bring to you. We could dismiss the innovation discussion as one of current novelty. In the past, I have done just that. However, there are increasing pressures to innovate our justice system – the everincreasing number of self-represented litigants; the financial cost of doing the same and having less impact; the unmet need of those with legal issues who seek resolutions outside of the justice system; and without a lawyer and the expanding use of technology in other sectors in society. I see these pressures as opportunities to reimagine our work as lawyers and the value that we bring to society. So, what does “innovation” mean? As we look to modernize the justice system, themes are emerging. Innovation means shifting our perspective. The work of A2JBC championed by Chief Justice Bauman encourages a Triple Aim2 approach where access to justice goals are influenced by three elements: improved population access, improved user experience and improved costs. This has proven to be a successful approach in the health sector. Innovation means more than just using the latest technology – it means partnership and collaboration. Finding new or different ways to address justice challenges, with participation across the justice sector, Richard Fyfe, QC, BC’s Deputy Attorney General, spoke of the ongoing collaboration with the BC Aboriginal Justice Council and Métis Nation BC to develop Indigenous justice reforms (e.g. developing conceptual models for Indigenous justice centres, reforming our approach to Gladue, and 2

BARTALK / APRIL 2019

exploring the use and expansion of Indigenous courts) as examples of low tech, innovative work. Innovation means the re-organization of existing components. As resources remain scarce and gaps in service grow, we need to rethink existing systems. Lynne Charbonneau, Lexterna consultant, spoke to the re-alignment of communication between the business group and the legal risk and compliance group within a multinational financial institution. Ms. Charbonneau poses the question: Instead of organizing engagement and communications by categories of law, regulation and internal standards, why not organize the latter around the stages of the customer journey? Innovation also means making lawyers more relevant. Lexis Nexis innovates by empowering lawyers to make better decisions, get better results and be more productive. The company has taken a proactive approach, combining its global legal database with semantic search, data visualization, predictive analytics, machine learning and artificial intelligence to create new decision tools and insights for legal professionals. Chilwin Cheng of Ascendion Law is a thought leader in the adoption of technology and business systems in legal practice. His innovations in document management and use of support litigation and research companies allow him to reduce costs and better serve his clients. Innovation means using technology to solve problems. The Civil

Resolution Tribunal (“CRT”) has leveraged technology to provide information to self-represented litigants and to guide them through a resolution process. There are valid criticisms of the CRT. However, its creativity in leveraging technology is to be applauded. Qase is an online delivery of legal services (e.g. file management and sharing, scheduling, messaging, videoconferencing, and payment processing) similar to booking travel or shopping online. It is an especially attractive service for small and solo firms and those who provide unbundled services. CBABC and our innovation partners want to bring you into the innovation conversation. Let us re-imagine and re-design our justice system together. Keep an eye out for a future innovation event: Gillian Hadfield, law professor, economist and writer of Rules for a Flat World: Why Humans invented law and How to Reinvent it for a Complex Global Economy.

Taking Innovation to the Profession, (Feb 2, 2019) – Presenters: Larry Alexander (Gall Legge Grant Zwack), Erin Schnarr (Lexis Nexis), Dan Zollmann & Jaclyn Megens (Qase), Tom Spraggs (Spraggs & Co) Chilwin Cheng (Ascendion Law), Lynne Charbonneau (Lexterna), Joshua Lenon (Clio) and Richard Fyfe, QC Deputy AG (BC Ministry of Justice) 2 accesstojusticebc.ca/approach/theaccess-to-justice-triple-aim 1

Margaret A. Mereigh

president@cbabc.org

APRIL 2019

VOLUME 31 / NUMBER 2

Contents

Departments

2 FROM THE PRESIDENT Taking Innovation to the Profession by Margaret A. Mereigh 5 EXECUTIVE DIRECTOR Let’s Talk by Kerry Simmons, QC 8 INDIGENOUS MATTERS Change of Direction Required by Bruce McIvor and Kate Gunn 9 Jordan’s Principle — An Important First Step to Filling Gaps in Services to First Nations Children by Frances Rosner 14 NOTHING OFFICIAL When Sly Calls by Tony Wilson, QC 28 PRACTICE TALK Innovation in Legal Services Delivery by David J. Bilinsky 29 DAVE’S TECH TIPS

Sections

SECTION UPDATE Administrative Law u Administrative Law with the Social Justice and Human Rights Law u Charities and Not-for-Profit Law u New Workplace Investigations Section

6 7 12 13

PREPARE FOR SUCCESS by Paul Todd CHARTER VALUES AT THE CIVIL RESOLUTION TRIBUNAL by Matthew R. Voell and Oliver Pulleyblank PRIVACY AND THE OPEN COURT IN A BRAVE, BIG DATA WORLD by Lisa Picotte-Li LAW SOCIETY OF BRITISH COLUMBIA V. TRINITY WESTERN UNIVERSITY, 2018 SCC 32 by Tonie Beharrell

16 18

WORKSAFEBC AND JUDICIAL REVIEW by Ben Parkin TWO TRIBUNALS ENTER ADMIN BODIES AND JURISDICTIONAL CONFLICTS by Sean Vanderfluit

Features

20 TRANSIT AUTHORITY by Brandon D. Hastings

Guest

30 PAY ATTENTION THIS MATTERS by Allison Wolf

Inside This Issue What is administrative law? The law that “governs the governors”: arguably the area of law most directly related to lawyers’ function of speaking truth to power (as Jody Wilson-Raybould might say). In this Administrative Law issue, our writers address questions ranging from: “What is the role of the Charter in informing the Civil Resolution Tribunal’s determination of ‘minor’ motor-vehicle injuries?” to “How are overlaps in tribunal jurisdiction resolved?” We consider privacy around information disclosed in published decisions being used against disputants. We talk professional wellness for lawyers of all ages; Translink’s unusual framework for police-enforceable bylaws is discussed, as is innovation in legal service delivery, and visual, vocal, and physical spam. We cover the Canadian government’s discriminatory underfunding of services to First Nations youth and a related class-action, along with concerns about the Supreme Court of Canada’s decision that the duty to consult does not apply to legislation drafting. We hope you enjoy this Administrative Law issue!

— Brandon D. Hastings, BarTalk Chair

News and Events

4 22 23 24 26 34

Law Week: Dial-A-Lawyer Day Law Week 2019 BC Legislative Update Branch & Bar Calendar CLEBC Update Tips from Courthouse Libraries BC Call for Nominations Aboriginal Lawyers Forum 8th Annual Retreat BC WLF News Family Justice in Canada is at a Breaking Point CBA West Conference

Also in This Issue

26 LAW FOUNDATION OF BRITISH COLUMBIA 31 DISPLAY ADS 32 BAR MOVES 33 NEW MEMBERS APRIL 2019 / BARTALK

news BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Brandon Hastings

EDITORIAL BOARD MEMBERS

George Hungerford Eryn Jackson Kevin Kitson Kirsten McGhee Lisa Picotte-Li Craig Stewart Crystal Tomusiak Donna Turko, QC Sean Vanderfluit

BARTALK SENIOR EDITOR

Carolyn Lefebvre

STAFF CONTRIBUTORS

Travis Dudfield Kent Hurl Christopher LaPrairie Michelle May Sanjit Purewal Stuart Rennie Kerry Simmons, QC Judy Yen The BC Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, BC V6B 5T3 Tel: 604-687-3404 Toll-free (in BC): 1-888-687-3404 bartalk@cbabc.org

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EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Let’s Talk

Meeting the needs and expectations of young lawyers

hen I consider the issues facing the legal sector, I often come back to the experience of young lawyers. Smart, energetic, passionate and hardworking, young lawyers are fun to work with, teach and mentor as they establish their careers and reputations. The Law Society’s most recent Annual Report in 2017 reports that 33% or 3,911 of BC’s 11,894 practising lawyers are under the age of 40. This includes 630 lawyers in their first year of the profession. Their journey to becoming lawyers and their daily experience is very different from the other two-thirds of the profession. It is something worth talking about in order to seek understanding of that experience and be sure that the other twothirds adapts to embrace this group. Lawyers and workplaces who adapt contribute to a positive experience. Thank you for doing that. If you ask, new lawyers can tell you about the debt load they carry as they start their careers and the potential for that to overwhelm them. In January 2019, the Law Students’ Society of Ontario released a second report on student debt and notes that 53% of students entering law school do so with no prior debt. Those with debt primarily have government student loans with an average amount of $27,447. By the end of law school, over 60% of students have debt and the majority of that is on lines of credit with financial institutions. The amount? $83,746 on average.

The impact of this debt is negative. With an average of $83,746 to be paid off, new lawyers often deviate from the career paths they sought when pursuing a law degree and feel compelled to work in major urban centres in large firms where the compensation is usually higher than in rural areas. They work in more financially lucrative areas instead of social justice. They are less satisfied when the rationale for going to law school and the financial reality don’t match and, in some cases, result in significant set-backs. Addressing the debt during their early career when they are also on a significant learning curve is a source of stress. This can show up on the job where lawyers “put in more hours” chasing increased compensation to the detriment of the quality of their work, their own health, their connections with colleagues, or relationships and activities outside of work.

As we often hear, the stigma associated with mental health challenges is incredibly difficult to overcome in the legal profession.

Ask a few more questions of young lawyers and, if you are patient and they know it is okay to tell you, they may confide that they are struggling with stress, depression, anxiety and substance use. They don’t usually hear from senior lawyers or even their mentors that it is okay to ask for help, get treatment, or adjust work responsibilities in order to address these concerns. They are worried about the Law Society “finding out.” They have negative experiences with health insurers.

Our advocacy, programming and services include what is important to young lawyers.

So what can we do collectively in CBABC to support young lawyers? First up: Ask and Listen. CBABC hosts focus groups and surveys young lawyers to hear first-hand what they experience, want and need. Second: Engage. The Young Lawyers Advisory Committee influences the advocacy and programming in CBABC. For example, they launched the inaugural Bell Let’s Talk CBABC social media campaign on January 30. Young Lawyers sections create communities where young lawyers decide who they want to hear from to learn and gain more control over their practices. Third: Meet Needs and Expectations.

Fourth: Try New Ideas. A Young Lawyers Conference anyone? Let’s talk.

Kerry L. Simmons, QC

ksimmons@cbabc.org APRIL 2019 / BARTALK

feature

PAUL TODD

Prepare for Success

Effective preparation in ADR

dministrative law hearings can be as complex and costly as traditional court proceedings, making alternative dispute resolution an attractive option to resolve differences. Many boards and tribunals offer alternatives to having a formal hearing before an adjudicator, usually in the form of a mediation. Parties are able to present their cases efficiently because the mediator has specialized knowledge of the subject area. This can make the process preferable to a private mediator who may lack the expertise needed to arrive at creative solutions. The effectiveness of mediation depends on the parties to the dispute. Alternative dispute resolution is only as effective as participants make it. Lawyers are in a unique position to assist their clients in this regard. The following three approaches can help make alternative dispute resolution mechanisms effective. The first approach is to narrow the dispute to its essential core. A case may have many different components, but often there are one or two issues that truly define the dispute. Advocates can sometimes obscure this by devoting time and energy to alternative arguments or setting out the history of a dispute in unnecessary detail. While a client may be momentarily satisfied by the airing of old grievances, it is counter-productive when the goal is to achieve a negotiated resolution. These issues may 6

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be of little practical consequence, but will result in hostility from the other side and wasted effort to resolve irrelevant differences. By focusing on the essence of the dispute, parties will be able to work toward solving the important problem, rather than getting sidetracked. This helps save time and money as mediations become more efficient. The second approach is to prepare clients to compromise. It is easy for clients to be uncompromising in advance of a hearing; however, effective mediators will challenge parties when they become positional. Clients should be prepared for this reality by thinking about what they want to achieve at mediation and what they are willing to compromise on. These discussions sometimes require input from

Even the best mediator will have difficulty finding a solution if parties have not thoughtfully considered their positions. different people in an organization or further investigation of facts. If possible, draft a settlement proposal and present it early in the day. This can save time and focus attention on practical outcomes. Doing this work in advance avoids unnecessary delay at mediation and keeps the momentum

toward settlement. It also reduces the chance of buyerâ&#x20AC;&#x2122;s remorse after an agreement has been signed because the client has more fully considered the implications of an agreement. The third approach is to tailor the dispute resolution process to the nature of the case. Alternative dispute resolution does not need to be one-sizefits-all. Formal exchange of openings and an in-depth discussion of the case may be unnecessary. Parties can agree to use the skills and knowledge of the mediator to resolve a narrow set of pre-defined issues. Perhaps negotiations brought the parties close to a deal but one issue defies resolution. The parties may ask the mediator for a without prejudice recommendation. A well-respected mediatorâ&#x20AC;&#x2122;s opinion can carry significant weight and help the parties consider the risks of proceeding to a hearing. Flexible approaches can yield surprising results. All three approaches require preparation in advance of mediation. Even the best mediator will have difficulty finding a solution if parties have not thoughtfully considered their positions. This can be achieved by having clients answer directed questions. What outcome are you trying to achieve? What are you willing to compromise on? What are you not? If this matter goes to hearing, what are the broader implications of a win or a loss? Alternative dispute resolution functions best when parties come to the table with a realistic view of their priorities and a willingness to find solutions that work for both sides. Paul Todd is Senior Legal Counsel at the Health Employersâ&#x20AC;&#x2122; Association of BC.

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MATTHEW R. VOELL AND OLIVER PULLEYBLANK

Charter Values at the Civil Resolution Tribunal Not so minor

dramatic change in motor vehicle litigation will occur on April 1, 2019: The Civil Resolution Tribunal (“CRT”) gains the exclusive jurisdiction to decide whether injuries suffered by motor vehicle accident victims are “minor injuries.” The stakes are high: if tagged with a “minor injury” label, the Insurance (Vehicle) Act caps recovery for pain and suffering (non-pecuniary damages or “non-pecs”) at $5,500. Prior to this regime change, plaintiffs suffering “minor injuries” regularly received non-pecuniary awards up to and exceeding $100,000. While it may sound like a cruel April Fool’s prank to suggest plaintiffs’ counsel will now have to traipse off to an administrative tribunal to dispute the applicability of the $5,500 cap, the change is real. The prospect of sorting victims into two categories, those whose nonpecs are capped and those whose are not, is daunting. It is also fraught with constitutional concerns, making the decisions of the CRT ripe for challenge on judicial review. For example, under the “minor injury” scheme, a limited class of physical injuries – currently abrasions, contusions, lacerations, and certain strains, sprains, concussions, whiplash associated disorders, and jaw injuries – qualify as “minor injuries.” Pain, psychological, or psychiatric condition are also “minor injuries,” so long as they do not

last for more than 12 months and make the plaintiff unable to work, go to school, or perform activities of daily living. Court challenges alleging that physical injuries are treated more favourably than psychological injuries appear inevitable. Furthermore, as administrative decisionmakers, CRT adjudicators will have to apply Charter values in making their decisions; consequently, plaintiffs’ counsel might have to wade into the murky and unfamiliar waters of Charter law in order to avoid the cap. Raising a Charter issue at the CRT presents several concerns. Most significantly, the CRT has no jurisdiction to resolve a constitutional question, so a direct Charter challenge to the legislation itself must occur at Supreme Court. Despite this lack of jurisdiction however, the CRT is obliged to consider Charter values arguments, which are likely to arise in two situations. First, Charter values must be applied by the CRT to interpret legislation in the face of ambiguity in the legislation. Given the heavy lifting that the definitions of “minor injury” and “serious impairment” perform, it is inevitable that there will be ambiguities when the CRT applies these definitions to particular facts. For example, will the CRT conclude

that an injury rendering one plaintiff unable to work does not prevent a different stay-at-home plaintiff from performing the daily activities of daily living, a division historically made on gender lines? Is such an interpretation of “minor injury” in line with Charter value of equality? Second, CRT adjudicators must exercise discretion in a manner consistent with Charter values. The privative clause contained in the amended statute suggests many of the CRT’s decisions are, to at least some extent, discretionary. Potentially crucial decisions, such as whether to grant extensions of time or admit certain evidence, almost certainly involve exercises of discretion. When exercising discretion, the CRT must not unreasonably limit Charter protections in light of the legislative objective of the statutory scheme. It is inevitable that CRT adjudicators will be required to consider the values of dignity, equality, autonomy, fairness and privacy when exercising their discretion in motor vehicle claims. It remains to be seen whether the CRT is up to the challenge of applying Charter values in the context of motor vehicle adjudications. The significance of the cap for non-pecuniary damages, however, suggests that plaintiffs’ counsel will have to consider raising Charter value arguments at the CRT and at the Supreme Court on judicial review. Given this new workload, the headaches the new scheme causes for motor vehicle accident lawyers may not be so minor at all. Matthew R. Voell, Barrister & Solicitor (civilresolutiontribunal.ca) and Oliver Pulleyblank, Pulleyblank Law. APRIL 2019 / BARTALK

Indigenousmatters BRUCE MCIVOR AND KATE GUNN

Change of Direction Required

Case comment on Mikisew Cree First Nation v. Canada

n October 2018, the Supreme Court of Canada released its much-awaited decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40. The decision arose from Mikisew Cree First Nation’s judicial review application, in which it argued the Crown failed to discharge its constitutional duty to consult prior to enacting changes to environmental review legislation, which would impact Mikisew’s treaty rights to hunt, fish and trap. At the Supreme Court (“Court”), the majority held that the duty to consult is not triggered by the development of legislation, because recognizing a duty to consult in the law-making process would require courts to improperly trespass on the legislative arm of government and lead to inappropriate judicial incursion on the workings of the legislature. The Court also held that recognizing a constitutionally-mandated duty to consult in the development of legislation would be highly disruptive to the legislative process and could “effectively grind the day-today internal operations of government to a halt.” Consequently, the Court concluded that prior to the enactment of legislation there is no constitutional obligation to consult Indigenous peoples about how that legislation could affect their Aboriginal rights and treaty rights. Importantly, the Court emphasized that the fact that the duty to consult was not triggered in relation to the development of legislation did not absolve the Crown of its obligation 8

BARTALK / APRIL 2019

to conduct itself honourably. The fact that the legislative process is not subject to judicial review should not “diminish the value and wisdom” of consulting Indigenous peoples prior to enacting legislation that has the potential to adversely impact their Aboriginal rights and treaty rights, even where there is no recognized constitutional obligation to do so. In dissenting reasons, Justices Abella and Martin concluded that the honour of the Crown gives rise to a duty to consult that applies to all contemplated government conduct with the potential to affect Aboriginal rights and treaty rights, including the development of legislation. They also rejected the majority’s view that extending the duty to consult to legislative action would be unworkable or cause undue interference by the courts in the legislative process. They noted that in many cases, a declaration in the context of the legislative process would be an appropriate remedy. Mikisew represents a missed opportunity. Rather than causing disruption and chaos, a decision that the duty to consult applies to legislative development could have set the stage for respectful engagement with Indigenous peoples about the development of the law, and in turn avoid a multitude of potential legal challenges to legislation that affects Aboriginal rights and treaty rights. Importantly, it would be an error for federal and provincial governments to assume that, based on

Mikisew, they can ignore the rights and interests of Indigenous peoples when drafting legislation. The reasons of both the majority and dissenting judges in Mikisew provide strong, clear affirmation that the Crown should engage directly with Indigenous peoples, both in order to fulfil its obligation to act

honourably and to avoid the prospect of future litigation in respect of legislation which infringes the rights of Indigenous peoples. While the entire Court in Mikisew identified different opportunities for Indigenous peoples to challenge federal and provincial legislation that affects their constitutional rights, at the end of the day the decision underscores the need for a new path forward. Indigenous peoples should not be forced to fight for a place at the table in the development of the colonizers’ laws. Real reconciliation requires recognition of Indigenous peoples’ inherent law-making authority and its place within Canada’s constitutional order. Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. Kate Gunn is an associate at First Peoples Law Corporation.

FRANCES ROSNER

Jordan’s Principle — An Important First Step to Filling Gaps in Services to First Nations Children Jordan’s Principle arose out of the tragic death of Jordan River Anderson, a 5-year old boy from Norway House Cree Nation in Manitoba in 2005.1 Jordan was born with complex medical needs and his family and community did not have the resources needed to treat his condition, so Jordan was placed in the care of the provincial government. The doctors treating Jordan decided, after two years in the hospital, that he could be cared for in a family home with specialized supports. Due to jurisdictional disputes between the provincial and federal governments over funding for these supports, however, Jordan never made it out of the hospital. The governments continued to fight over funding for another two years, and Jordan passed away at the age of 5. Shortly thereafter, in response to Jordan’s tragic death, the federal government unanimously passed a motion in 2007 on a child-first principle, better known as Jordan’s Principle, in the House of Commons. The motion called on the government of first contact to ensure that First Nations children have access to the same public services as other children, by providing immediate relief while determining who pays for the service. Unfortunately, Jordan’s Principle was initially limited in its application to children with multiple disabilities and funding disparities to First Nations children in other service sectors continued to place them at a disadvantage for several years to come. On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) affirmed that Canada’s funding

policies discriminate against First Nations children on reserve (the “Decision”)2. Several findings and orders were made against Canada regarding its discriminatory practices, specifically in relation to providing child and family services to children and families living onreserve and in the Yukon. Among the rulings, the CHRT ordered Canada to take immediate steps to cease its narrow definition of Jordan’s Principle and give full meaning and effect to it. With jurisdiction over the matter, the CHRT continues to monitor Canada’s compliance with the Decision and on February 1, 2018, it issued its 4th noncompliance ruling3. In a non-compliance ruling on May 26, 2017, the CHRT provided a timeline of steps that must be taken by Canada.4 Since then, Canada has implemented some of the necessary changes and Jordan’s Principle has been expanded to provide services to First Nations children both on and off-reserve for a broad range of health, social and education services. The process for accessing these services was streamlined5 through providing Jordan’s Principle representatives across Canada and the Jordan’s Principle Call Centre, which is open 24-hours a day, 7-days a week: 1-855-JPCHILD (1-855-572-4453). Counsel acting for First Nations families involved with the Ministry of Children and Family Development can utilize Jordan’s Principle on behalf of children for a variety of services. This is particularly helpful for families attempting to overcome protection concerns and facing multiple barriers that could be remedied through timely services to children. In keeping

with the Decision, Jordan’s Principle was meant to serve as a preventative resource to help improve outcomes for First Nations children – this includes providing resources that would keep children with their families. While the expanded definition of Jordan’s Principle may provide some relief to First Nations children in need, funding disparities continue to plague the child welfare system despite Canada’s fiduciary and legal duty to provide services to First Nations peoples. In a class action lawsuit filed Monday, March 4, 2019 in Federal Court, lead Plaintiff, Mr. Xavier Moushoom, alleges that Canada continues to discriminate against First Nations children in care through funding policies that incentivize the removal of children from their families.6 Mr. Moushoom, a survivor of the foster care system, argues that Canada knowingly failed to address severe inadequacies in its funding formulas, policies and practices in the child welfare system between April 1, 1991 and March 1, 2019. The class has not yet been certified, but the statement of claim relies heavily on the findings of the Decision to expose discriminatory policies that have harmed children – and that contribute to the overrepresentation of First Nations children in care across Canada. Jordan’s Principle – A brief history, First Nations Child & Family Caring Society of Canada 2 2016 CHRT 2 3 2018 CHRT 4 4 2017 CHRT 14 5 Jordan’s Principle 6 More info 1

Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.

APRIL 2019 / BARTALK

sections SECTION UPDATE

Keep Current A review of provincial Section meetings Administrative Law in Canada Workplace Investigations New Section – check it out!

Administrative Law Issues arising in the newly legalized cannabis industry

Administrative Law & Social Justice and Human Rights Law Recent developments in access to justice and tribunals

Charities and Not-for-Profit Law Civil Resolution Tribunal (“CRT”) process and the expansion of its jurisdiction to societies, under the BC Societies Act.

BARTALK / APRIL 2019

Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies in Canada. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers such as a board, tribunal, commission, agency or minister.

Administrative Law With cannabis legalization,

ucareful consideration was given

to administrative law issues arising in the newly legalized cannabis industry during the November 29, 2018 Administrative Law Section meeting. The speakers brought their professional experiences in working in this field, with Sara Dubinsky of Lidstone & Company and Kirk Tousaw of Tousaw Law Corporation addressing municipal and administrative law issues relating to cannabis. Sara and Kirk identified guidelines for how practitioners should approach cannabis issues when they intersect with administrative law and spoke to administrative law issues and court challenges that are expected to arise in the future for cannabis. Sara and Kevin predominantly discussed federal, provincial, local and third-party/private regulatory authority over cannabis; BC cannabis distribution scheme for operating rules and requirements; the role of local governments in regulating retail stores; the key intersection with administrative law; and upcoming legal/regulatory/industry challenges. uuu To watch a recording of this webinar, please visit bit.ly/BT_ Sec_Admin

Administrative Law & Social Justice and Human Rights Law The Administrative Law Sec-

ution joined with the Social

Justice and Human Rights Law Section on October 25, 2018 to welcome Monique PongracicSpeier, QC, Ethos Law Group, and Kevin Love, Community Legal Assistance Society to discuss recent developments in access to justice and tribunals. Conversations included higher court decisions regarding administrative tribunals (e.g. Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31), that have worsened the state of access to justice in Canada, especially for marginalized communities.

Charities and Not-for-Profit Law

Anil Aggarwal, Legal Counsel at College of Registered Nurses of BC, and Martha Rans, lawyer, joined the Charities and Not-for-Profit Law Section on September 18, 2018 to discuss the Civil Resolution Tribunal (“CRT”) process and the expansion of the jurisdiction of the Civil Resolution Tribunal to societies under the BC Societies Act. Anil and Martha provided several practice points for everyone who is working in this field. First, societies must be more attentive in keeping a membership Registry. Secondly, societies need a policy in place to address requests for access to information and a signed statement if a request for access is denied. Lastly, societies must have a privacy policy and provide the necessary related privacy training.

Referring to the large number of administrative decision-makers, one of the issues Kevin and Monique addressed was what an ordinary person must do to figure out the processes and who to talk to, especially where the jurisdictions of the various decision-makers intersect and overlap. The second theme discussed was how the administrative decision-making processes have/ are becoming too complicated for the ordinary litigant. The speakers also spoke to statutes of general (or perhaps not so general) application – what are some of the challenges of arguing the Charter or the Human Rights Code before statutory decision makers? Kevin and Monique ended their session with a discussion on administrative tribunals and courts, and therein where the dividing lines be drawn.

From this discussion, questions arose about the discipline process and how it does not really exist in Schedule B. An issue that arises on the matter of discipline involves occupational societies, because these societies often need the ability to discipline their members in order to receive insurance coverage, as seen with athletes for example.

uuu To watch a recording of this webinar, please visit bit.ly/ BT_Sec_A2J

uuu To watch a recording of this webinar, please visit bit.ly/ BT_Sec_CRT

Lastly, discussing if a lawyer is needed when facing the CRT, Anil expresses it is in the best interest to involve lawyers because it is directors and council members who are asked to defend claims that have been brought to the CRT. Anil reminds us that these people are volunteers, and it is asking a lot of them to defend the claims before them when considering all the time that is needed to go through the CRT process. Feelings of defensiveness are created, which can ultimately have the effect of dissuading people from sitting on boards and being directors – this is a societal negative.

New Section:

Workplace Investigations On February 2, 2019, CBABC Provincial Council approved the formation of a Workplace Investigations Section. This Section will focus on improving the quality of workplace investigations by providing meaningful opportunities for lawyers to learn and discuss changes in relevant legislation, as well as case law updates, and best practices. Lawyers in BC are increasingly required to be informed about the law and best practices in relation to workplace investigations, both in advising clients involved in an investigation, and where the lawyer is retained as an independent investigator. In addition to investigating allegations of bullying and harassment or misconduct generally, lawyers are now increasingly retained to investigate allegations of sexual harassment in the workplace. Workplace investigations can be lengthy and complex, and involve diverse areas of the law – human rights, privacy, workplace safety, evidence, privilege, administrative principles of fair process, and contractual elements involving employer policies. Workplace investigators synthesize a large amount of evidence, make factual findings and produce comprehensive reports that may also include legal advice. Best practices require awareness of bias, as well as considerations of implementing alternative dispute resolution.

uuu To enroll into

this Section, please visit bit.ly/BT_Sec_Enroll.

APRIL 2019 / BARTALK

feature LISA PICOTTE-LI

Privacy and the Open Court in a Brave, Big Data World Just because an administrative tribunal could doesn’t mean it should

ncreasing technology use and machine learning have resulted in improvements in efficiency. Electronic information, including data and algorithms, provides new opportunities for growth and expansion. It also means that increasing amounts of sensitive information such as data related to health, finances, and employment are producible if they become relevant to a matter in a legal proceeding. The open court principle means that legal proceedings are presumptively open and accessible to the public. The Supreme Court of Canada has described it as “a hallmark of democracy and a cornerstone of the common law” (Vancouver Sun (Re), 2004 SCC 43 at para. 23). The open court principle is intended to foster public confidence, further understanding of the administration of justice, and promote transparency, accountability, and fairness in decision-making. Although the open court principle is foundational to a justice system that serves the public, it also creates tension in regards to the individual’s fundamental right to privacy. The tension is amplified by the volume of data that can now be made available and the ease with which the data can be obtained. Whereas “open court” historically meant attending a hearing or reviewing paper records, it can now mean the anonymous searching, indexing, extracting, and repurposing of information databases. It is easy to imagine how unscrupulous individuals could misuse “open 12

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court” information in a way that is not connected to the accountability of the justice system. For example, obtaining lists of names of accused persons and charges they face in order to sell them on the Internet (Alberta (Attorney General) v. Krushell, 2003 ABQB 252). Published decisions regularly include personal information such as parties’ names, financial summaries, health backgrounds, and employment disputes. Misuses of such sensitive information can certainly have serious consequences. Administrative agencies and tribunals in British Columbia are generally subject to the Freedom of Information and Protection of Privacy Act (“FIPPA”) unless the Administrative Tribunals Act (“ATA”) applies. Tribunals that are not subject to the ATA must collect, use, and disclose personal information in accordance with FIPPA. If the ATA applies to a tribunal, however, FIPPA has limited application and the tribunal does not need to consider personal information in the same way. Whether or not a tribunal is subject to FIPPA, it should be mindful that information that is shared is impossible to take back, particularly when data can be aggregated, decoded, and reused. Individuals’ concerns about the sharing of their personal information can even erode the process itself if individuals cease to engage with it. So how can competing interests be

balanced to limit the consequences of sharing unnecessary information? 1. Take time to consider the type of information that is truly needed to support a conclusion. For example, it might be enough to indicate an individual was hospitalized without detailing the reason for the hospitalization. 2. Ask the individual if there is particularly sensitive information that might be harmful if included and provide them with an opportunity to identify their areas of concern. It allows the issue to be raised, even if it is later determined to be essential to include it. 3. Set policies regarding the collection, use, and disclosure of information so that minimum amounts of data are handled to achieve the intended purpose. If information is not collected, it will not be improperly disclosed. At the end of the day, it is the decision-making process that needs to be open and accessible, not the information of the individuals – particularly vulnerable individuals – who become part of the process. The question is not an individual’s reasonable expectation of privacy but whether a tribunal that is enabled to publish personal information can protect the privacy of individuals while still maintaining an open process. After all, “knowledge by others does not transform the nature of the information itself” (University of British Columbia (Re), 2013 BCIPC 4 at para. 38). Every individual is deserving of privacy, process, and dignity. Lisa Picotte-Li is Legal Counsel at Technical Safety BC. She advised on administrative proceedings and privacy compliance. The views set out above are those of the author.

feature TONIE BEHARRELL

Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 Balancing statutory objectives with Charter protections

ost lawyers in BC are familiar with the history of Trinity Western University’s (“TWU”) pursuit of a law school. In 2013, the Federation of Law Societies of Canada approved TWU, a privately funded evangelical Christian university, as meeting requirements for a Canadian common law degree program. This resulted in TWU’s program becoming an “approved” faculty for the purposes of the Law Society of British Columbia (“LSBC”) rules – unless the Benchers adopted a resolution declaring otherwise. Throughout 2014, the LSBC wrestled with the question of whether TWU’s mandatory “Community Covenant” that, among other things, prohibited “sexual intimacy that violates the sacredness of marriage between a man and a woman” meant that its program should not be approved. In an October 2014 referendum, LSBC members voted to implement a resolution that TWU’s program was not an approved faculty of law. The Benchers passed a resolution accepting the results of the referendum and declaring that TWU’s law school was not approved. The case moved through three levels of court over the next four years. In June 2018, the Supreme Court of Canada (“SCC”) upheld the LSBC’s decision. The LSBC’s process and decision raised a number of administrative law issues, articulated by the SCC as:

1. Was LSBC entitled under its enabling statute to consider TWU’s admissions policies and to hold a referendum of its members in deciding whether to approve the law school?; 2. Did the LSBC decision limit a Charter protection; and, if so 3. Did the decision reflect a proportionate balance of Charter and statutory objectives? The courts below focused largely on the first question, both finding that with the referendum LSBC inappropriately fettered its discretion, and in failing to provide reasons for its decision had not engaged in an appropriate balancing of the interests. In contrast, the SCC spent much more time considering the issue of proportionate balancing. By a 7-2 margin, the SCC found that, given the broad public interest mandate found in the Legal Professions Act, the LSBC was entitled to consider TWU’s admissions policies, and to hold a referendum of its members on the issue. Further, the majority held that the LSBC was not required to give reasons as it was clear from the process that the Benchers were “alive to the question.” The majority found it could assess the reasonableness of their decision by looking to the record as a whole.

Having made these findings, the focus of the SCC’s reasons was on the last two questions. All but one justice found that the LSBC decision limited freedom of religion. Seven of the justices (in three decisions) held that it reflected a proportionate balance of the Charter and the statutory objectives. If an administrative decision engages the Charter by limiting its protections, the issue becomes whether the decision reflects a proportionate balancing of the Charter protections and the statutory mandate. The majority of the court found that, although the decision did limit freedom of religion, it did not do so to a significant extent. Further, the decision advanced the LSBC’s statutory objectives by maintaining equal access to, and the diversity of, the legal profession; and preventing the risk of significant harm to LGBTQ individuals. In contrast, the two dissenting justices found a significant impact on freedom of religion and, on the basis of a much narrower view of the LSBC’s statutory objectives, would have found that the decision did not strike an appropriate balance. What happens next is unclear. The majority of the SCC was clear that they were considering the issue in the context of TWU’s mandatory Covenant. The Covenant is no longer mandatory as of the 2018-2019 academic year. Will TWU reapply for a law school? Will the outcome be different? Only time will tell.

Tonie Beharrell is in-house legal counsel to the Health Sciences Association of BC, and head of its legal department. APRIL 2019 / BARTALK

nothingofficial TONY WILSON, QC

When Sly Calls

Don’t touch that phone – don’t touch that phone!!!

y phone is ringing. But because I don’t recognize the number, I’m not going to touch that phone. Instead, I’m hearing that jazzy Michael Franks tune from the 80s, which ironically, is the title of this article. Here’s the reason. Whether it’s my desktop phone or my cell, I’ve noticed more and more numbers on call display that I just don’t recognize, either because they originate from area codes I’m not familiar with (so I’m suspicious) or they’re international calls with very long call display numbers (so I’m really suspicious). When I’ve answered these mystery callers in the past, they’ve either been financial consultants trying to persuade me to move my RRSPs over to them. Or they’re calling from Hong Kong or Mumbai to ask me if I’m going to buy a made-tomeasure suit when the tailor is in Vancouver next week. Or they’re robo-calls from somebody who offers me West Jet flights for free. Sometimes the robo-caller is speaking Chinese and I haven’t got a clue what they’re trying to sell me. But they’re trying to sell me something. Occasionally, the robo-caller identifies herself as my personal “Google Rep.” I didn’t know I had a Google Rep. If she were human, I’d ask her to do a Google search and explain why I need a Google Rep when my name and firm regularly show up in the top three unpaid hits for “Vancouver Franchise Lawyer” on Google. I hang up the phone as she urges me not to hang up the phone. You see, there’s way too much “phone-spam” these days and I hate phone-spam. The “Do Not Call List” 14

BARTALK / APRIL 2019

works about as well as the Skytrain escalators at Burrard Station (they don’t work either). I’m not one of Pavlov’s dogs that has to answer the phone simply because it rings. If it’s important, then the caller will leave a message. If it’s a telemarketer or a robotic phone spammer, then they won’t leave a message and my problem is solved. If they’re existing clients, I’ll know the number and I’ll probably pick up. But if I’m in the middle of something else or on a deadline, they’ll leave a message and I’ll call them back. There was a recent article in The Economist that said receiving emails and phone calls at work reduces a worker’s IQ by about 10 points relative to working without interruption. So in addition to avoiding phone-spam, maybe we’d all be a lot smarter if we made more of an effort not to answer the phone or respond to emails during a defined “window” in the day so we can get the important work done without interruption. Again, we aren’t Pavlov’s dogs. If something is truly important and requires immediate action, then we may need to deal with it right away, like “triage” in hospitals. If something is less important, then maybe it can wait. If it works for emergency room doctors, it should work for us too. As for emails, we should really try to avoid answering every email the millisecond it lands in our inbox. Many legal problems do not lend themselves to simple and immediate answers, and dealing with this morning’s email madness prevents us from completing the larger and

potentially more complicated projects we took on last week. If the email is important, tell the client you need some time to consider the request before responding substantively. My guess is that we’d be distracted less and make fewer mistakes. Joyless meetings are the other great productivity killer. To misquote Karl Marx, all meetings repeat themselves; first as tragedy and then as farce. In an article called “Death by Meeting,” Deborah Wheatman creates a fictional play with a cast of characters like the “Meeting Host” whose job it is to convince attendees that the meeting is important and a good use of everyone’s time. There’s the “Spotlight Hog” who talks endlessly without really saying anything. Then there’s the “Remote Participant” who delays the meeting because of incessant connection problems. Every meeting has a “Dissenter,” who disagrees with everything without offering viable alternatives. And finally, there’s the “Chorus” of other attendees who express their views by deep sighs, eye rolling and checking their phones. So the next time you’re asked to go to a meeting, listen to your inner Marie Kondo and ask yourself this: will it spark joy? Speaking of which, my phone is ringing. If it’s important, they’ll leave a message at the beep. 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.

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APRIL 2019 / BARTALK

feature

BEN PARKIN

WorkSafeBC and Judicial Review

he Workers’ Compensation Board of British Columbia (“WorkSafeBC” or “Board”) occupies a curious place in administrative law. Although the Board issues a high volume of administrative decisions, it is rarely the proper respondent in a judicial review application. This is because the vast majority of Board decisions are subject to statutory review before the Board’s Review Division, and then appeal to the independent Workers’ Compensation Appeal Tribunal (“WCAT”). Once WCAT issues a decision, the proper object of judicial review is that WCAT decision. There are, therefore, only a limited number of situations when the Board is a proper respondent to an application for judicial review. The Workers Compensation Act (“WCA” or “Act”) sets out some situations where a Board decision is not subject to the internal appeal regime and could therefore be directly judicially reviewed: see, for example, ss. 96.2(2) dealing with certain Board orders that are not subject to review at the Review Division and 239(2) setting out certain Review Division decisions that are not appealable to WCAT. Other situations where the Board is directly the subject of judicial review might be less obvious. The Board has the ability to make regulations relating to occupational health and safety under s. 225 of the Act. This means that a challenge to 16

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the validity of a provision in the Occupational Health and Safety Regulation (“OHSR”) will usually be defended by the Board rather than the Attorney General. That is precisely what happened in West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22. The Board had imposed an administrative penalty on an employer who breached a particular OHSR provision. In the judicial review of the WCAT decision, the Board was added as a proper party to defend the vires of the impugned regulation. A second example is where a party challenges the reasonableness of published policies of the Board’s board of directors. The Act makes the Board’s policies binding on the Board’s decision makers (s. 99(2)) and on WCAT (s. 250(2)). In order to challenge a policy, an applicant must first follow the procedure set out in s. 251 of the Act, which involves the WCAT vice chair and chair referring the policy to the Board’s board of directors for consideration and stakeholder input. Although the Court of Appeal has criticized the complexity of this procedure, the court ultimately deferred to the legislature’s wisdom in enacting it and requires applicants to follow it before they will be allowed

to challenge the policy on a judicial review: Johnson v. British Columbia (Workers’ Compensation Board), 2011 BCCA 255; Bodman v. Workers’ Compensation Appeal Tribunal, 2016 BCSC 2436. Once the board of directors has considered the policy, if it is not set aside then a challenger may take the policy to court on judicial review: Lockyer-Kash v. British Columbia (Worker’s Compensation Board), 2016 BCSC 2435. Finally, there may be situations where the Board is a respondent in a judicial review proceeding although the Board decision has been subsumed by a WCAT decision that is under judicial review. The Board may be involved in order to provide context to the decision and information about the administration of the statutory scheme. An example of this is the case of Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCCA 387 where the chambers judge found the Board had limited standing to address the above issues. In summary, the Board has a limited role in judicial review of administrative decisions, most commonly to defend the vires of a regulation or the reasonableness of a board of director’s policy. The day to day claims decisions made by the Board are not subject to judicial review, since they are dealt with through the statutory appeal process. Ben Parkin, Barrister and Solicitor, Director, Legal Services – Litigation, WorkSafeBC.

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feature

SEAN VANDERFLUIT

Two Tribunals Enter… Admin bodies and jurisdictional conflicts

hen most practitioners think of administrative law, a few major topics usually come to mind. Standard of review is likely first amongst these, with natural justice and procedural fairness not far behind. The jurisdiction of an administrative body is also a common topic, but usually in terms of the agency’s authority within its legislative scheme. A topic that might come to mind less frequently is when there is conflict between administrative bodies, either in terms of jurisdiction or subject matter. There are many instances where two or more administrative bodies might intersect, such as the subject matter or the object of regulation. There is also often an intersection between administrative bodies at the federal and provincial level. For the most part, the diverse and multitudinous number of agencies are able to work with little conflict. However, the explosion in the number of administrative agencies, bodies, tribunals, and other governmental bodies in the last 75 years has resulted in overlapping responsibilities and jurisdiction. This has given rise to an array of challenging and noteworthy cases in which the courts have worked to resolve these conflicts. Sometimes legislation addresses priorities. This does not always preclude conflict, as seen in British Columbia 18

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(Workers’ Compensation Board) v. Figliola, 2011 SCC 52. In that case, the WorkSafeBC Review Division determined a Board policy regarding chronic pain was not offside BC’s Human Rights Code, RSBC 1996, c 210 (“Code”). Unsatisfied, the workers took the matter to the BC Human Rights Tribunal. WorkSafeBC objected, arguing the Code barred the Tribunal from proceeding, as the matter had been “appropriately dealt with” (s. 27(1) (f) of the Code) by the Review Division. Ultimately, the Supreme Court of Canada agreed with WorkSafeBC, stating that the provision of the Code had imported the common law principals of issue estoppel, collateral attack, and abuse of process that precluded one administrative body from conducting a “judicial review” of another body’s decision. The court said that once an agency’s decision is final, it is to be treated as such by other administrative bodies. While not described as such, this reflects the concept of comity as it is used in conflicts of law (private international law) cases. This concept is not unlimited. It is often forgotten that the Office of the Ombudsperson is also an administrative body, but perhaps not in the traditional sense as it does not make merit decisions regarding a party’s

entitlement to governmental benefits or entitlements. Notwithstanding the fact a government agency might have made a final decision, the Ombudsperson has the power to scrutinise the processes and decisions of other administrative bodies, as notably discussed in British Columbia Development Corporation v. Friedmann (Ombudsman), 2011 SCC 52. When it comes to conflicts between agencies at different levels of government, the courts have developed a number of different tests to resolve the matter. Sometimes the subject matter is the same, such as labour relations. For those kinds of cases, there is the two-part test as described in NIL/TU,O Child and Family Services Society v. BC Government and Service Employees’ Union, 2010 SCC 45. Sometimes the subject matter differs, such as environmental regulation on one hand and bankruptcy on the other, as seen in the recent Orphan Well Association v. Grant Thornton Ltd. 2019 SCC 5 decision. It revisited the three-part test regarding a provincial regulator’s ability to impose an environmental obligation on a bankrupt and a trustee’s rights under the Bankruptcy and Insolvency Act, RSC 1985, c B-3. There was no corresponding federal administrative body in the case, but it helps illustrate the limitations facing an agency even when it operates within its subject matter. Sean Vanderfluit is a Review Officer at WorkSafeBC. The views expressed in this article are strictly those of Sean and do not reflect the opinions of WorkSafeBC. linkedin.com/in/vanderfluit/

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feature BRANDON D. HASTINGS

such a challenge might have to be to the enabling legislation.

Transit Authority

Fair evasion?

ublic transportation in Metro Vancouver is administered by the South Coast British Columbia Transportation Authority (“Translink”), whose board (the “Translink Board”) is comprised of seven or more individuals appointed under Part 8 of the South Coast British Columbia Transportation Authority Act (“Act”). Under section 245(1) of the Act, Translink “must, by bylaw, establish a scheme to enhance [Translink’s] collection of fares.” This power is probably limited to tickets (ss. 245(1) and 245(2)), and any fines must not exceed $1,000 by regulation. Translink must also, “in the fare collection bylaw, .… establish dispute and appeal procedures.” Any such bylaw must be approved by the mayor’s council on regional transportation (s. 246), but the minister may add, amend, or repeal any fare collection bylaw by regulation [ss. 245(6) and 245(7)]. Translink’s bylaws related to fare collection (the “Fare Collection Bylaw”) are enforceable by, among others, the South Coast British Columbia Transportation Authority Police Service (the “Transit Police”) [Act at s. 243]. According to Wikipedia, the Transit Police are the only police force in Canada dedicated solely to transit matters. The current Fare Collection Bylaw is not a bylaw of Translink, but a regulation by Order in Council (No. 498). 20

BARTALK / APRIL 2019

It was put into force on June 22, 2012 – well before the advent of Compass cards or turnstyles. The Fare Collection Bylaw stipulates two fines with a penalty of $173: fare evasion, and failure to produce. Fines escalate to $213, then $273 on nonpayment for 180 days and 266 days, respectively. Appeals are to a Translink arbitrator, and the only substantive ground of appeal is that the infraction was not committed as alleged (Act at s. 253 and Fare Collection Bylaw at s. 7(1)). The arbitrator’s decision is then referable to the Provincial Court for review, governed by the procedure

The Transit Police are the only police force in Canada dedicated solely to transit matters. set out in the Fare Infraction Review Referral Regulation, B.C. Reg. 88/2013. This process doesn’t appear to provide any opportunity for argument on unfairness or unconstitutionality of the Fare Collection Bylaw itself, and it’s not clear that would be appropriate in any case because it is a bylaw and therefore

There are at least two ways to look at this situation. On the one hand, we have a Crown corporation that provides benefit to the public good, and is able to safeguard its main revenue-generating function through bylaws that apply to those using its services. Those bylaws are subject to vetting by elected officials, and are subject to oversight by an MLA. On the other hand, there is a corporation in BC that has its own police force. That corporation is able to create police-enforceable bylaws, the breach of which results in a debt payable to the corporation. That corporation is also largely charged with determining the justice process with respect to bylaw breaches. Translink, to its credit, has apparently exercised its power fairly responsibly thus far. The current Fare Collection Bylaw is passed not by Translink, but by Order in Council. Nonetheless, one could be forgiven if they were discomfited by the idea of a corporation able to pass revenue-generating, police-enforceable bylaws, applicable to the public, while at the same time determining the justice processes with respect to breaches of those bylaws – processes which, at the moment, appear to render the bylaws with absolute liability.

Brandon D. Hastings is a lawyer and mediator at Quay Law Centre, CBABC Provincial Council representative, and co-founder of Vancouver Legal Hackers. @BHastingsLaw facebook.com/BHastingsLaw ca.linkedin.com/in/bhastingslaw

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BC LEGISLATIVE UPDATE

ACTS IN FORCE Current from December 25, 2018 to February 26, 2019 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org. AGRICULTURAL LAND COMMISSION AMENDMENT ACT, 2018, S.B.C. 2018, C . 56 (BILL 52) Act is in force February 22, 2019 (B.C. Reg. 30/2019). CHILD, FAMILY AND COMMUNITY SERVICE AMENDMENT ACT, 2018, S.B.C. 2018 C. 27 (BILL 26) Section 1(a), insofar as it repeals the definitions of “Aboriginal child” and “Aboriginal community”, section 1(b), section 1(c), insofar as it enacts the definition of “First Nation land”, section 1(d), section 1(e), insofar as it repeals the definition of “treaty first nation”, sections 2 to 13, 15 and 17, the remainder of section 18(a) not yet in force, sections 18(b) and (c), 19 to 26 and 28 to 49 are in force April 1, 2019

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Calendar APRIL

6 CBA Health and Wellness Conference — Ottawa, ON 11 Women Lawyers Forum 2019 Awards Dinner Gala — Vancouver 13 Law Week: Dial-A-Lawyer Day — Anywhere in BC 604-687-3221 | 1-800-663-1919 19 Good Friday 22 Easter Monday 26-28 CBA West 2019 — Penticton

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APRIL 2019 / BARTALK

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CLEBC Update BRITISH COLUMBIA ADMINISTRATIVE LAW PRACTICE MANUAL Administrative law is complex and requires specialized knowledge. CLEBC’s British Columbia Administrative Law Practice Manual offers you a guide to navigating administrative law and procedure with advice on fundamental administrative law concepts, case preparation and advocacy, the role of evidence and parties, and the

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process for reviews and appeals. Covering decision-makers and courts at both federal and provincial levels, this manual provides access to sample forms annotated with commentary and a curated bibliography of other useful administrative law resources.

British Columbia 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.

With this practice manual, you will be able to: understand what makes for effective administrative law advocacy and drafting more confidently handle administrative decision-makers and unrepresented parties avoid common administrative law practice pitfalls

For more information, please call CLEBC customer service at 604-893-2121 or visit cle.bc.ca/bcadminlaw.

DEFOGGING ADMINISTRATIVE LAW

The boundaries between private law and administrative law is a “terrain of shifting sands” – as author David Mullan puts it in his primer, Administrative Law, (Irwin Law 2001). This book is available to all members of the Law Society of BC to read at their leisure. Go to courthouselibrary.ca, select Remote Access to Subscription Databases (under the How We Can Help tab) and activate your free Courthouse Libraries BC account to get remote access to this and hundreds of other ebooks on Canadian law. For BC-specific commentary on administrative law, check out CLEBC’s British Columbia Administrative Law Practice Manual, which came on the scene in 2012 and has been updated to 2015. CLBC has print copies and electronic versions of that resource (see above CLEBC Update for more info). Finally, we recommend the brand new Administrative Law in Practice: Principles and Advocacy, from Dean Lorne Sossin and Emily Lawrence, which is new to our collection. The table of contents for all of these resources can be found in our online catalog. As always, we are happy to answer questions in person, by email, or by phone (1-800-665-2570 toll free) and help you navigate the foggiest legal parameters of statutory and public powers.

BARTALK / APRIL 2019

BRITISH

COLUMBIA

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Our client, a growing, entrepreneurial firm situated in Vancouver, is seeking an intermediate-senior level business/real estate associate to join their small team and highly collegiate culture. The ideal candidate will have between 5-12 years of experience in corporate commercial and real estate law (with an emphasis on real estate development and commercial real estate), and an appetite to mentor junior staff. This firm offers flexible work arrangements, high-calibre work, and excellent benefits. For more information or to apply for this position, please contact Amrit Rai at 604-681-0706 or arai@zsa.ca quoting reference #BT28131.

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One of the best regarded regional Vancouver law firms, with a renowned litigation group, is looking to grow again with an experienced Associate. Ideally, you will have 4-7 years of experience and a strong background in property, casualty and coverage work. This is a chance to work with some of the top litigation partners in this space in Vancouver, in a leading local law firm with a terrific culture. Contact Mike Race at mrace@zsa.ca referencing #BT28866.

Estates & Wealth Preservation Litigation Associate | 3 – 6 years

We’re working with a highly-regarded and collegial Vancouver law firm, currently looking to add an Estates & Wealth Preservation Litigation Associate to their team. The ideal candidate will have 3-6 years of relevant experience and proven litigation skills in the space. If you are mid-level associate in this space keen to join a busy group and take on interesting files, contact Mike Race at mrace@zsa.ca quoting reference #BT24517.

Plaintiff Personal Injury Lawyer | Vancouver | 3 – 15 years

Our client is one of the best regarded plaintiff personal injury law firms in Vancouver, with a real reputation locally for taking on major complex matters, and being outstanding trial lawyers. They have been growing strongly with this kind of work, and in the unique position of feeling that they’ll be largely unaffected by the coming legislative changes in the space. They are currently looking for an experienced plaintiff personal injury lawyer who is able to run files independently, and also keep to get involved in working in larger teams on catastrophic injury trials. They offer a strong influx of interesting and complex work, a great deal of administrative support, and a friendly and open team of lawyers. Contact Mike Race at mrace@zsa.ca referencing job number #BT27151.

Junior Solicitor | Okanagan | 1-3 years

Are you an ambitious junior solicitor with varied experience who wants to establish their practice in the Okanagan, where you have vineyards at your doorstep and access to an array of outdoor activities? If so, we have just the opportunity for you. Our client is looking to hire a lawyer with 1-3 years’ experience doing general solicitor work - real estate, wills, and commercial transactions including commercial leasing. The full gamut at a junior level. You don’t need to be experienced in everything but some general experience would be an asset over highly specialized experience. Excellent mentorship and guidance will be provided, with the opportunity to narrow your practice in time. For a confidential discussion, please contact Amrit Rai at arai@zsa.ca, quoting #BT28375.

Labour & Employment Associate | Vancouver | 1+ year

Our client, a boutique litigation firm, is looking for top tier litigators to join their growing employment and labour practice. They are currently searching for an associate with 1+ years’ experience right up to Associate Counsel level. Experience in employment law, disability law, or personal injury would be considered a strong asset. You will need to be self-motivated, while enjoying working collegially with others on the team. If you are interested in learning more, please submit your resume in Word format to Amrit Rai at arai@zsa.ca referencing #BT28786.

zsa.ca

’

APRIL 2019 / BARTALK

news&events NEWS

CBABC AWARDS

Call for Nominations

BC WLF Update The CBABC Women Lawyers Forum is thrilled to announce the recipients of the WLF awards: WLF

Award of Excellence: Kasari Govender, Executive Director of West Coast LEAF Debra Van Ginkel, QC Mentoring Award: Rita Andreone, QC The 2019 WLF Awards Gala takes place in the evening on April 11, 2019 and will celebrate the accomplishments of these two women in the legal profession. CBABC invites you to honour a fellow member with a nomination for these prestigious awards to be presented in June: Equality

and Diversity Award Rankin, QC Pro Bono Award Innovative Workplace Award Harry

Nomination deadline is Friday, April 12, 2018. Nomination forms and more details at cbabc.org/Awards.

We are pleased to welcome Justice Catherine Fraser, Chief Justice of Alberta, the Northwest Territories, and Nunavut as the keynote speaker. Chief Justice Fraser was the first female Chief Justice appointed to a provincial court of appeal, and is currently the longestserving Chief Justice in Canada. We are honoured to have a speaker who has been a trailblazer for women in law and who so perfectly exemplifies the Excellence and Mentoring Awards. NATIONAL MAGAZINE

Family Justice in Canada is at a Breaking Point

SAVE THE DATE:

Thursday, June 20, 2019 for the

Aboriginal Lawyers Forum 8th Annual Retreat & th 12 National Aboriginal Day Auction Reception Location and details to be announced in the next issue.

In spite of the reform efforts to date, public confidence is at an alltime low, the number of litigants without counsel continues to rise, and signs point to a worrisome trend of people choosing to opt out of the system altogether, abandoning the relief to which they may be entitled. It’s time for some fresh thinking about what can be done. One solution may be a complete overhaul of the system, including allowing a wider range of professionals to take part. It’s time for a critical examination of all potential alternatives, no matter how improbable they seem, without the assumption that business as usual is best merely because it’s usual. Read full article uuu

BARTALK / APRIL 2019

announcement LAW FOUNDATION OF BRITISH COLUMBIA

The Law Foundation of British Columbia

50th Anniversary

On April 2, the Law Foundation marks its 50th anniversary. Over the past 50 years, the Law Foundation, and the groups it funds, have worked to satisfy the mission of the Law Foundation – “To advance and promote a just society governed by the rule of law, through leadership, innovation and collaboration.” Our vision is “A society where access to justice is protected and advanced.” In 1969, the foundation had income of $50,000 and issued its first grant of $5,000 (to the Legal Services Society). By way of contrast, in 2018, foundation income was $52.7 million, 268 applications for funding were assessed and over $33.4 million in funding was approved for 77 continuing programs and 141 other grants (27 project, 42 on-track, and 70 other grants). Recognizing the need for ongoing work in the community in our five statutorily mandated areas, over $25.4 million of this amount was allocated to continuing programs. Since 1969, much has happened to improve access to justice in British Columbia: More

than $600 million in grants have been made by governors of the Law Foundation to a variety of organizations in BC for work within the mandate of the foundation, namely: legal aid, legal education, law reform, legal research and law libraries. Some groups have been funded by the Law Foundation for more than 35 years: Canadian Bar Association; Legal Services Society; Community Legal Assistance Society; Legal Services Society; Peoples’ Law School; Law Students’ Legal Advice Program; University of British Columbia; West Coast Environmental Law Association; BC Public Interest Advocacy Centre; Debate and Speech Association of BC; BC Civil Liberties Association; Law Society (Professional Legal Training Course); MPA Motivation Power and Achievement Society; and the University of Victoria Law Centre. Since 2002, the foundation has supported a network of legal advocacy groups around the province that provide legal help to people in their communities and in 2018, the board funded 15 new family law advocacy programs and 10 additional poverty law groups. Hundreds of thousands of British Columbians have received help with their legal problems, including information, advice, summary service and full representation. A variety of law reform and systemic advocacy initiatives have resulted in changes and improvements to the laws of British Columbia. We look forward continuing to work with the legal community of BC to enhance access to justice in the province.

APRIL 2019 / BARTALK

practicetalk DAVID J. BILINSKY

Innovation in Legal Services Delivery Contemplating a shift in focus r

I’m your one stop shop when you’re ready to drop Any time you need me baby Call me when the sun come shine We be doing overtime... r – Music, Lyrics and recorded by Katchafire.

om Beasley, Employment Lawyer, has a problem. You see, over the last four years he has brought together diverse professionals with the goal to operate as a multi-disciplinary team who would work collaboratively and concurrently with clients to resolve complex workplace conflicts. But in BC, it is not currently possible to seamlessly operate this way within a single business entity. Tom has formed a multi-disciplinary group, under the trademarked name RespectWorks with other professionals: Dr. Jennifer Newman (Workplace Psychologist) and Heather MacKenzie (Employment Lawyer, Workplace Investigator, Educator and Mediator). They bring in other professionals as needed, including Dr. Peter German (Lawyer and Investigator) and Lions Gate Risk Management (Workplace Risk Assessments). He would like this group to operate as a one-stop shop: a single business entity under a common brand. Currently, the only possible way this could happen is to form a multidisciplinary partnership (“MDP”). However, the requirement in BC is that “all other services provided by the MDP must support or supplement the practice of law by the MDP is unworkable in his situation,” he says. Tom’s vision is that the new entity shifts its focus from 28

BARTALK / APRIL 2019

the practice of law, to meeting the workplace needs of the client, which may or may not include legal services. These services could include advice on: employment relationship issues, including discipline and hiring, policy, accommodation, return to work, disability law, addictions, WorkSafeBC, occupational health and safety, leaves, contracts, retirement and termination, but may also integrate training and education, and organizational and leader development to assist clients in long term prevention of workplace crises and organizational health. This is neither your typical MDP nor law firm and as a one-stop shop, it is certainly not compatible with the present legal regulatory environment. As a result, each professional operates as a separate business entity, billing and collecting independently from each other. It is clunky and definitely not client centred. It is too bad that Tom and his colleagues don’t practice in England and Wales. The Legal Services Act 2007 allowed the formation of Alternative Business Structures (“ABS”). There are now more than 450 ABSs. They range from traditional law firms who have added non-lawyer expertise to their board, to insurance companies, accountancy firms, local authorities and charities (The Solicitors Regulation Authority’s (“SRA”) Publication: The Changing Legal Services Market). The SRA also found that there is also emerging evidence that ABS

are more likely to introduce new services and new ways of delivering services than traditional legal service providers. Take BWL Consulting, for example. It is a multi-disciplinary construction business that has become an ABS, in part to reduce confusion among clients. Paul Benson, director, said increasing the scope of legal services also meant the firm could become the “one-stop shop” that clients wanted. “We’re a bit of a niche firm trying to do a few things very, very well. Can different professions work together? We think the answer is yes, in a one-stop shop.” “It’s not so much about cost savings, though we price very competitively. Not having to go to more than one company makes clients’ lives easier. They’re getting all the expertise they need in the same place.” Making client lives easier with onestop shopping. An innovative idea… wonder if it could catch fire here?

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 (presently on leave). Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com GO ONLINE FOR MORE INFORMATION

dave’s techtips Alternative Business Structures

the need for non-lawyer involve-

uuu THE LAW SOCIETY OF ENGLAND AND WALES (bit.ly/bt0419pt1)

The benefits of becoming an ABS include: equity can be raised from a broader base of potential partners, members or directors, for example from other professionals or non-solicitor employees Non-solicitor employees may be rewarded by partner, member or director status, with a direct stake in the firm, thus enabling

firms to attract new investment from different markets. You

may provide a wider range

of services to clients through an ABS than you can through an

The potential risks: You should be aware of how the ABS structure may affect your firm. You should consider the following questions in your assessment: What

impact will non-lawyer

managers or owners have on the culture of the firm? How

will the changes affect

the firm’s business plan and what benefits are they likely to achieve? How

far will non-lawyers

understand the culture and obligations of solicitors? Will

becoming an ABS change

the firm’s perceived risk profile? The SRA does not believe that ABS are inherently more risky but changes to your firm may still alter the perceived risk. This may alter the

a practice to both retain

way a firm is regulated by the

high-performing non-solicitor

SRA under its new system of

employees, and attract outside

risk-based regulation and the

legal talent

ability of, and terms on which, a

The

ability to diversify the range

of services provided by the practice either through becom-

you want to provide services through an office overseas? Many foreign jurisdictions may not accept ABS.

This has the potential to allow

ordinary law firm.

A necessary exercise when contemplating change is evaluating the potential risks and benefits. The Law Society of England and Wales summarized the potential benefits and risks of becoming an ABS:

ment at the management level.

firm can obtain professional indemnity insurance. An

ABS will always require at

There are important access to justice and service delivery benefits arising from ABS: The Solicitors Regulation Authority stated: “Although around a quarter of all legal services providers have introduced a new or improved service in the last two years, ABS and alternative providers are still more likely to be innovative than traditional law firms. Emerging practices include increased use of fixed costs, unbundling and technological innovations in service delivery.” The SRA continued: “Law is interacting with business and technology more than ever, and is redefining what it means to practise law. Technology presents lawyers with the opportunity to use effective new business models to deliver services, and monitor business and financial performance. In 2014, regulated lawyers stated in a survey that smarter use of technology is the most important factor to help grow their business. Most business changes, either implemented or planned by these lawyers, happened by means of investment in processes and technology.”

ing a “one-stop shop,” or

least £3 million cover in the

consolidating a specialism in a

event of a claim. A partnership

uuu Per:

particular area of the market.

or recognised sole practice that

The Changing Legal Services Market

Equity

can be raised from

outside the legal sector without

is not an ABS requires only £2 million of cover.

APRIL 2019 / BARTALK

guest ALLISON WOLF

Pay Attention This Matters

Decoding the meaning of stress

ennifer is anxious about the upcoming discovery. She’s never handled a file like this before and opposing counsel is a tough senior litigator. John is stressed out at his firm. The partners he works with take positions on files he is at times ethically opposed to and the competitive office culture is toxic to him. Jeremy is putting off listening to the voicemail that piled up while he was off sick. There is already too much to do and he fears what might be waiting for him in those messages. Stress, fear, anxiety: are these signs that something is wrong with you? Not at all. Stress isn’t a sign that something is wrong. It’s a signal that something is important and needs your attention. The physical experience of stress is a highly evolved biological reaction designed to give us what we need to make it through. If you have not yet read or watched Kelly McGonigal of Stanford University’s eloquent summary of the latest insights from stress research conducted over the past two decades, head over here to watch her Ted Talk. To summarise decades of research, while stress feels uncomfortable, the physical response is equipping us to do our best. The cortisol released boosts our immune response. 30

BARTALK / APRIL 2019

The adrenaline increases our alertness and mental focus. The DHEA enhances our mental focus, helps us build new neurological pathways and promotes recovery. The oxytocin increases trust and inhibits fear while the dopamine promotes courage, learning, and the formation of memories. The stress Jennifer is experiencing is a natural part of her learning process. Jennifer can use her stress response to full advantage. It will be speeding up her thinking processes and helping her to perform at her best during the discovery. It will also help her learn from the experience. The experience of stress can also point to a need to make a change, such as a career or practice transition. John is reluctant to start a job hunt but the stress he is experiencing everyday serves as an alarm bell prodding him into action. Stress can also be a signal that it is time to invest in mental wellness.

to every single flaw, potential ailing, and portends disaster. The stress caused by these negative thoughts is a signal that there is something important to investigate, namely, mental wellness. Mental wellness is one of the best investments in your professional development you can make. This is important for everyone. Mental wellness is founded on exploring the terrain of your inner landscape, learning how to identify and shift negative thought cycles and how to handle the challenging emotions – anger, disappointment, fear, sorrow and grief. The best way to explore this terrain is with a guide. The Lawyer Assistance Program is an excellent starting point for lawyers. Coaches and counsellors can also help provide tools and practices to try out. Negative thoughts, fears, and shame shrink when brought out of the darkness in our heads and into the light with a trusted confidante. This makes speaking with a trusted advisor a wise course of action. Many respected lawyers have sought this support early on and throughout their careers and this investment in mental wellness has been a pillar of the professional foundation that has supported their success.

Jeremy’s stress is caused by his thoughts. He dislikes being behind. His fear of missing important deadlines has triggered his procrastination about listening to his messages.

As Kelly McGonigal says, “make stress your friend.” Acknowledge its message that something is important and matters. Take action.

Jeremy’s negative self-talk and fears are entirely normal. Inside all of us lives a harsh inner critic who is alert

Allison Wolf, PCC is a senior coach with a cross-Canada and the US practice dedicated to the legal profession.

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APRIL 2019 / BARTALK

barmoves Who’s Moving Where and When

Maggie Campbell

Ryan Green

has been admitted to Roper Greyell’s partnership, effective January 1, 2019. She regularly conducts investigations and advises clients on human rights and employment issues.

is now a partner with Jones Emery Hargreaves Swan LLP. Ryan’s practice focuses on tax planning and resolving tax disputes.

Mike Hamata

Katie Comley

has been promoted to partnership at Roper Greyell, effective January 1, 2019. He practises in all areas of employment and labour law, primarily as a litigation lawyer.

has joined Miller Thomson’s Vancouver office as an associate in the labour and employment group.

Stephen D. Holmes

Jada Tellier

is moving from Borden Ladner Gervias down the road to Synergy Business Lawyers LLP where he will continue his cross border business tax, securities and business law practice.

has joined Miller Thomson’s Vancouver office as an associate in the commercial real estate group.

Kirsten McGhee

Dmitrii Terpylo

is now a partner with Jones Emery Hargreaves Swan LLP. Kirsten is a solicitor and practises in estate planning and administration, adoption, and residential real estate.

has joined the General Litigation group as an associate in the Langley office of Lindsay Kenney LLP. Dmitrii’s practice will focus on family law.

Brian Beitz

Sunny Aujla

is now a partner with Jones Emery Hargreaves Swan LLP. Brian is a solicitor, practising in corporate and commercial law and real estate.

recently became a partner at Hamilton Duncan where he continues to advise clients on matters relating to corporate/commercial, commercial finance, franchising and real estate.

BARTALK / APRIL 2019

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_1904.

Rory Morgan recently became a partner at Hamilton Duncan where he continues to practice in the areas of personal injury.

newmembers January & February 2019 Lawyers Aba Agbozo

Watson Goepel LLP Vancouver

Solomon K. Chiu

Chak Law Corporation Richmond

Harleen Clair Surrey

Amy R. Coad

Erin Tait has been appointed managing partner at Koffman Kalef LLP. Erin joined the firm as an associate in 2004 and became a partner in 2008.

Carfra Lawton LLP Victoria

Mark Cochrane

Gordon J. Kopelow Law Corp. Vancouver

Rasjovan (Jovan) Dale Quay Law Centre New Westminster

Samantha Dawson Turko and Company Vancouver

Matthew Cooperwilliams has opened Cooperwilliams Law, practising in the areas of employment, labour and civil litigation for employers, businesses and employees.

has joined Embarkation Law Corporation. She works with clients and businesses from around the world in all areas of immigration, refugee, and citizenship law.

is leaving his personal injury practice of nearly ten years with Hoogbruin & Company to join the Public Guardian and Trustee of BC as legal counsel.

Ravneet S. Rakhra

M. Joomratty Law Corp. Surrey

Suman Sharma

Barrister & Solicitor Surrey

Valancy Sissons Pacific Coast Law Victoria

Christopher E. Smith Purcell Law Fernie

Rory Tighe

Bennett Jones LLP Vancouver

Yu Wang

Guardian Law Vancouver

Barrister & Solicitor Vancouver

Articling Students

James Floros

Liam Babbitt

Rana Law Vancouver

T. Reid Fraser

McConnan Bion Oâ&#x20AC;&#x2122;Connor & Peterson Law Corporation Victoria

Synergy Business Lawyers LLP Vancouver

Cara Chu Fasken Vancouver

Olivia French

Randall Cohn

Danielle Garand

Selina Gill

McLachlan Brown Anderson Vancouver

Megha Goyal

Dhaliwal Law Office Richmond

Bryn Green

Blake, Cassels & Graydon LLP Vancouver

Nathan J. Ische

Terra Law Corporation Vancouver

Balvinder Kainth

Michael Airton

Charanjeet K. Raina, Law Office Surrey

Tadhg Egan

Ecojustice Canada Vancouver

Tess Acton

Charanjeet Raina

Kainth Law Office Surrey

Rebecca Kantwerg

Edelmann & Co. Law Corp. Vancouver David G. Milburn â&#x20AC;&#x201C; Trial Lawyer Burnaby

Alisa Maegawa Hamilton Fabbro Vancouver

Tristan Miller

Farris, Vaughan, Wills & Murphy LLP Vancouver

Natalie Mundy Vancouver

Morgan Sterns

Whitelaw Twining Law Corp. Vancouver

Victory Square Law Office LLP Vancouver

Jennifer Wong

Paula Krawus

Pauline H. Wong

Joanne Lee

To view all new members, please visit cbabc.org/bt/nm_1904.

Kent Employment Law Vancouver Dreyer Davison Lawyers LLP Langley

Burnaby

North Vancouver

APRIL 2019 / BARTALK

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