BarTalk February 2021 | Digital Transformation by The Canadian Bar Association, BC Branch

FEBRUARY 2021 | bartalkonline.org

Digital Transformation CAN YOU HEAR ME NOW? | VIEW FROM A COURT | MOVING JUSTICE FORWARD

M I K E R AC E

BRITISH COLUMBIA

Client Partner

CAREER OPPORTUNITIES

mrace@zsa.ca (604) 283-9316

Corporate Securities / M&A Associate Lawyer | 3-6 years | Vancouver

We’re working with a national law firm, which has a small and tight-knit Corporate Finance and M&A team in their Vancouver office. The team works with clients across a range of industries, especially focusing on mining, technology, financial services, and cannabis. Their busy and growing group is currently seeking a mid-level associate with strong Securities and M&A experience. You’ll have the opportunity to work with a great deal of autonomy, taking a leading or second chair role on a range of interesting and sophisticated deals. For more information or to apply, please contact Mike Race at LegalBC@zsa.ca, quoting reference #BT30323.

Commercial Real Estate Associate Lawyer | 2-5 years | Vancouver

Our client, a top-ranked regional Vancouver law firm, is seeking a junior commercial real estate associate to join their team. Ideally you will have at least 2 years of post-call experience working in commercial real estate matters. In this role you’ll have access to high-calibre work, a very supportive group of other real estate associates, and outstanding mentorship from expert partners, all within a highly collaborative firm culture. For more information or to apply for this position, please contact Mike Race at LegalBC@zsa.ca quoting reference #BT30013.

Corporate Commercial Associate Lawyer (Aboriginal law) | 2-4 years | Vancouver

We’re working with a leading national firm, with one of the top Aboriginal law practices in the province and a partner recognised as a leading Canadian lawyer in the space. The group is growing strongly and they now need to take on another corporate commercial associate to join their tight knit team. You will have the opportunity to work on a wide variety of extremely interesting matters, acting for businesses, government bodies, and Aboriginal groups across Canada on a highly varied range of corporate commercial legal matters. If you are a 2017, 2018 or 2019 call associate with a strong corporate commercial law background, and an interest in getting involved in corporate matters with an Aboriginal aspect to them, this is a terrific chance to join a great team of lawyers. They are very open to associates who have no experience in Aboriginal law but a general corporate commercial background and an interest in getting into this space. For more information please contact Mike Race at LegalBC@zsa.ca, quoting Ref. #BT30330.

Plaintiff Personal Injury / Class Action Lawyer | 2-8 years | Vancouver

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 being largely unaffected by recent legislative changes. They are currently looking for an experienced plaintiff personal injury lawyer who is able to run files independently, and also get involved in working in larger teams on catastrophic injury trials. They have also developed a strong and growing Class Action practice and any incoming PI lawyer looking to broaden their experience will have access to work on that side too. They offer a strong pipeline of interesting and complex work, a great deal of administrative support, and a friendly and open team of lawyers. For more information, or to apply, please forward your resume in Word format to Mike Race at legalBC@zsa.ca referencing job number BT27151.

Commercial Litigation Associates | 2-7 years | Vancouver

We are working with a number of top-rated law firms in Vancouver, all seeking Commercial Litigation associates. You’ll have a range of different options to consider, all with their own individual flavour as they all have different selling points - from major national brands, to high-end regional boutiques. To learn more about the range of options available right now, contact Mike Race at LegalBC@zsa.ca, quoting reference BT30212.

zsa.ca

C A N A D A ’ S

L E G A L

R E C R U I T M E N T

F I R M

T M

Digital Transformation Features 4

Columns

View from a Court During a Pandemic The Honourable Robert Bauman

FEBRUARY 2021 Volume 33 | Number 1

From the President

Jennifer J.L. Brun

Moving Justice Forward

Executive Director

The Honourable David Eby, QC 6

The BC Prosecution Service

Indigenous Matters

Can You Hear Me Now?

Nicholas Maviglia 12

Justice in the After-Times

Digital Transformation is About People

Iihldaa: Digital Transformation in the Haida Title Case Nigel Baker-Grenier and G.L. Terri-Lynn Williams-Davidson

Drug Treatment Court of Vancouver

Practice Talk

Chantelle Coulson 16

Social Distance ≠ Extinguished Connections Jaden Bourque

Shannon Salter 13

Embracing Change Kerry L. Simmons, QC

Paul Sandhu 10

Digital Competency of Counsel

Digital Transformation David J. Bilinsky

Lisa Picotte-Li 20

Digital Transformation v. Digital Replication in Mediation Practice

Dave’s Tech Tips

Sharon Sutherland 21

David J. Bilinsky

Digital Management in a Pandemic Johanna Goosen

How Can You Further Your Firm Down the Digital Transformation Path? Guest Column

Legal Coaching as an Alternative Jo-Anne Stark

Important Changes for Arbitration in BC Barry Penner, QC

Nothing Official

From the Branch

Why Realtors are Smarter than Lawyers Tony Wilson, QC

Advocacy in Action

Sections News

WLF Update

Brandon D. Hastings, Committee Chair

Professional Development

Editorial Committee Tonie Beharrell Baljinder Girn

From the Community

Eryn Jackson Isabel Jackson

Greg Palm Lisa Picotte-Li

Crystal Tomusiak Sean Vanderfluit

Carolyn Lefebvre Sanjit Purewal

Jo-Anne Stark Alexandra Suchy

Deborah Carfrae, BarTalk Editor

Community News

Staff Contributors Alyssa Brownsmith Michaela David

When Digital Just Isn’t Possible Courthouse Libraries BC

BarTalk is produced on the traditional and unceded territories of the Coast Salish peoples, including the Musqueam, Squamish and Tsleil-Waututh Nations.

2020 Goyer Award Recipient

Digital Transformation at CLEBC

BarTalk is published six times per year by the Canadian Bar Association, BC Branch (“CBABC”) and is available at cbabc.org/bartalk. This publication is intended for information purposes only and is not legal advice.

National News

Grants Approved

BarMoves

The Law Foundation of BC

Travis Dudfield Eileen Huster

CBABC supports over 7,200 members in British Columbia. We connect our members to the people, knowledge, and skills they need to successfully practice law. BarTalk enquiries, suggestions & letters to the editor: Canadian Bar Association, BC Branch 10th Floor, 845 Cambie Street Vancouver, BC V6B 5T3 Membership Enquiries membership@cbabc.org

t: 604.687.3404 tf: 888.687.3404 e: bartalk@cbabc.org

Contact Updates data@cbabc.org

Advertising

ads@cbabc.org

FROM THE PRESIDENT JENNIFER J.L. BRUN

Digital Competency of Counsel

he document governing our professional responsibilities as lawyers is the Code of Professional Conduct for British Columbia. Rule 3.1-2 of the Code states: “A lawyer must perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer.” A “competent lawyer” is defined, in part, as “…a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter….” Such competency includes not only knowing general legal principles and procedures, and the substantive law and procedure for the lawyer’s area of practice, but also the application of appropriate skills. Such skills may include researching, analyzing, writing and drafting, negotiating, advocating, and problem solving, to name a few. Practising as a competent lawyer also includes investigating facts, identifying issues, ascertaining client objectives, considering possible options, and developing and advising the client on appropriate courses of action. Further, our Code directs that we must recognize “…limitations in one’s ability to handle a matter or some aspect of it and [take] steps accordingly to ensure the client is appropriately served.” To practice competently, a lawyer must pursue “…appropriate professional development to maintain and enhance legal knowledge and skills” and adapt “…to changing professional requirements, standards, techniques and practices.” “Digital Transformation” is a timely theme for BarTalk. We have experienced innovation in our profession at an unprecedented rate as a result of COVID-19. While digital solutions can 2 BARTALK / FEBRUARY 2021

improve access to justice and support the effective administration of justice, as counsel we have a duty to ensure we are competent to use the technology. Our courts are using Microsoft Teams (Provincial and Supreme Court) and Zoom (Court of Appeal) for certain remote judicial conferences and hearings. These platforms can be accessed by a desktop computer, laptop, tablet, or smartphone. Alternatively, a participant can dial in by telephone. Participants need not be in the same location to connect to the conference. For example, the judge, lawyers, and litigants may all be in separate, remote locations across the province. If during the proceeding a lawyer needs to consult with their client, or with opposing counsel, they can mute their microphones, turn off their cameras, and speak privately by telephone. Alternatively, they can request a break or, if the breakout room function is available, they can be placed into a virtual breakout room to have the discussion in private before returning to the main hearing. Digital platforms are also being used by lawyers, court reporters, alternative dispute resolution practitioners, and administrative tribunals for meetings, interviews, examinations for discovery, mediations, and hearings. In short, justice system stakeholders are working tirelessly to replicate the best of the in-person court experience in a virtual setting. While these digital solutions are moving our profession into the 21st Century, the transformation is not without concern. Is information secure

over these platforms? Arguably, yes. What if participants record the proceedings surreptitiously? This can also be done in a courtroom and the BC Courts’ Policy on the Use of Electronic Devices sets out the policy and penalties that may be imposed for violations. How can we ensure participants are not being coached or threatened by others in the room with them, or are not referring to documents or notes before them in ways that would not otherwise be permitted? Any sign of inappropriate conduct should be addressed by counsel and can be raised with a judge. How is access facilitated for people without the necessary technology? The courts will continue to conduct in-person proceedings complying with COVID-19 restrictions if a remote proceeding is not suitable. How will the open court principle be maintained? Provisions have been made for public and media access to the courts during the pandemic, whether remote or in-person. What if counsel do not have the necessary skills or technology to accommodate remote proceedings? We have a responsibility to be competent lawyers and, arguably, the cost of updating our skills and technology is the cost of doing business. Fear not. The CBABC can assist you and our COVID-19 Resource Hub is a great place to start.

Jennifer J.L. Brun

president@cbabc.org

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Embracing Change

Supporting people and improving your bottom line

his is the time of year when many law firms, in-house legal departments, and governments set expectations for the contributions of their team members for the next 12 months. Project planning, business development, and contribution targets are all topics of analysis and discussion. More so than any other year in the recent past, changes to how we deliver legal services and from where is top of mind for everyone. Additionally, it is a time to assess your key resources and make strategic investments. This is the year to consider workingfrom-home arrangements as “normal,” not just a pandemic response. Reports of increased productivity and satisfaction of many lawyers working from home can’t be ignored. Lawyers have shown that it is a viable way to practice law, meet the needs of clients and meet the contribution expectations of their firms or legal departments. Granted, this option doesn’t necessarily work for everyone, like those with children who are cared for at home or those who don’t have the space or security to do so. Where it does work, leaders of legal departments and firms would be wise to continue to enable this method. Move equipment into homes, add cameras for video calls, establish security protocols and train everyone. In addition to increased productivity and improved professional satisfaction, enabling a more permanent framework for working from home can reduce operational costs such as physical space requirements, which can be invested in technology or people. The changes to service delivery have been embraced by many clients.

Where the technology is strong on both the client and lawyer’s end, video calls are a successful replacement for in-person meetings and an improvement to communication by phone or email. Clients save time travelling into an office and the cost of parking. Each change, no matter how seemingly small, aggregates to improve the client’s impression of working with their lawyer, and their overall experience. Digital adaptations are improving the bottom line. Clio’s 2020 Legal Trends Report (bit.ly/ bt0221p5-1) advises that US firms using online payment systems experienced a 7-16% increase in revenue per lawyer in 2020 compared to 2019. Those using online payment systems also experienced an increase in case volumes as electronic payments would speed up the payment of up-front fees, particularly in circumstances where physical distancing requirements limited in-person contact. The report highlights the positive impact of several digital tools, and is well worth a read to be inspired and provide support to advocate for those investments in technology. Back to the people in your workplace. As the experience of COVID-19 reminds us of our vulnerabilities and the importance of connections and relationships with each other, legal workplace leaders are re-examining how to support their legal teams. A cue can be taken from the words of Jordon Furlong in his November 2020 report to the Law Society of Alberta, Lawyer Licensing and Competence in Alberta (bit.ly/bt0221p5-2):

“Most people do not improve their competence and expand their capability by continuously absorbing criticism and enduring discipline…. Proficiency is generally achieved by receiving and responding to steady, constructive, and professional support and training.” Lawyers are not naturally qualified to provide this support, although some have learned how to provide it, and do it well. But, why not hire a professional? Lawyer coaches are well positioned to provide this support to lawyers at any stage of their career. Leading BC lawyer coaches — Allison Wolf (bit.ly/bt0221p5-3), Linda Parsons (bit.ly/bt0221p5-4), and Paula Price (bit.ly/bt0221p5-5) — have worked with CBABC members to support lawyers adjusting to new circumstances brought about by the pandemic, young lawyers striving for the next level of competency, and experienced lawyers taking on new challenges. Whether it is coaching, strategic education, or a sabbatical, investing in your people will always yield good results. A new year with new goals and opportunities. CBABC looks forward to helping you make the most of it.

Kerry L. Simmons, QC

ksimmons@cbabc.org FEBRUARY 2021 / BARTALK 3

feature THE HONOURABLE ROBERT BAUMAN

View from a Court During a Pandemic

n early 2020, events unfolded that seriously challenged the courts’ ability to continue their core functions as the judicial branch of government. COVID-19 had spread to the point that public and private services were shutting down throughout the province. Amid the risk and uncertainty, the Court of Appeal (the “Court”), like other courts across Canada, suspended all but the most urgent operations. Ten months later, the Court has learned a lot. Judges and staff have adjusted to working almost entirely remotely, primarily online but also by telephone for chambers. While able to offer in-person appeals if needed throughout the pandemic, the Court has endeavored to respond to fluctuating COVID rates and risks by offering parties the choice of in-person hearings while rates were low over the summer and early fall, and by conducting virtual hearings as the default when rates have been higher (earlier in the pandemic and presently). In experimenting with technology, the Court has been mindful that the “digital revolution” does not mean everyone finds online processes accessible. It is essential that our institutions, while encouraging advancements through communication and education, are flexible enough to meet people where they are in order to ensure equal participation. Likewise, the Court has made ongoing assessments and adjustments that are responsive to participants’ experiences with new processes. 4 BARTALK / FEBRUARY 2021

WHAT HAS IT BEEN LIKE TO BE A COURT OF APPEAL JUDGE THESE PAST SEVERAL MONTHS?

I can speak only for myself, but it has definitely added a layer of difficulty to the already challenging task of adjudication. While many Court of Appeal judges were fairly accustomed to using video technology and digital documents prepandemic, I was not. It has been a steep learning curve familiarizing myself with computer applications, pulling up documents and navigating between screens. I currently conduct most of my appeal preparation online, although I still need some documents printed, like factums. I hope that I am the transition generation to the truly electronic court. WHAT KEEPS ME UP AT NIGHT?

I worry about fairness — ensuring parties and lawyers feel able to fully present their best case, which for one person means a day in a physical courtroom whereas for another it means from the security of their home, as they may feel unsafe using transit or may have childcare responsibilities. There is unfortunately no one response to the pandemic that is “correct.” While its constitutional role is not negotiable, the Court has needed to make dozens of decisions, big and small, that make a difference to the public, to lawyers, to the media, and of course to judges as well.

Despite the many challenges, I am not alone when I say the pandemic has brought some hopeful signs. Courts, lawyers, and self-represented litigants have all considered this a time of opportunity to re-think some of the justice system’s basic assumptions and to make permanent changes that will improve accessibility. This change in mindset is consistent with the sector’s broad endorsement of the Access to Justice Triple Aim, three intertwined objectives for improving user experience, outcomes and costs. At the Court of Appeal the pandemic has led to fully electronic filing in civil appeals, and, coming soon, in criminal appeals as well. This is a cost-savings and convenience for many people, whether during the pandemic or not, although some still find physical filing more accessible. WHEN THE VACCINES HAVE BEEN WIDELY ADMINISTERED AND THE VIRUS IS SOMEWHAT UNDER CONTROL, WILL IT BE BUSINESS AS USUAL PRE-PANDEMIC?

I hardly think so. The positive aspects of applying sophisticated technological innovation to the appellate court experience have been amply demonstrated. Through these innovations we can offer the public efficiencies and convenience that, in my view, far outweigh perceived disadvantages. The appellate “courtroom” will always be with us (I hope!) but hereafter it will be a different place — more accessible, more efficient, more productive and indeed, sometimes when appropriate, virtual. The Honourable Robert Bauman, Chief Justice of British Columbia.

feature THE HONOURABLE DAVID EBY, QC

Moving Justice Forward

Justice technology reform in BC

n April 2013, the then Chief Justices, Chief Judge, and Attorney General of British Columbia signed a memorandum of understanding (“MoU”) under the auspices of the Justice Reform and Transparency Act. That MoU defined a working relationship between the Ministry of the Attorney General (“MAG”) and the courts. Among other things, it committed the signatories to “developing and maintaining an accessible, modern, and effective judicial system in the Province of British Columbia that delivers timely, impartial, and open justice.” This was a significant step in acknowledging that not only should justice be done and be seen to be done, but that the experience of justice system users is an important aspect of delivering justice, and one for which the executive and the independent judicial branch have some overlapping responsibility. The justice system is, of course, not immune from the effects of the pandemic, and public health advice initially limited courts’ ability to serve British Columbians. Limitation periods were suspended, and as with so many aspects of the pandemic, concern over matters of life and death resulted in profound challenge and the potential for injustice. A silver lining has been that as a result of the pandemic, and the resultant necessity of the MAG and the courts working together, the MAG and the courts now enjoy, in my respectful view, a much closer,

more collaborative, and more innovative working relationship. Currently, the MAG and judicial leadership has regular meetings to discuss operational issues and work to resolve them. These discussions have significantly improved the ability of government to respond not only to short-term pains related to COVID-19, but also long-standing concerns of the courts and government. It has resulted in improving access to justice through the adoption of “new” technologies and processes. I use quotation marks around the word new because, as an example, one of the more significant technological improvements was dedicated phone lines and conference phones for individual courtrooms, improved Internet services, and hardware refreshing — improvements long overdue, but realized in the context of the pandemic. All these pieces taken together reflect a paradigm shift that enabled the COVID response, and my hope is that they will continue to enable increased user-focus, and responsiveness to the needs of British Columbians in our justice system. These immediate changes have also facilitated serious conversations about longer-term reform initiatives. Our Chief Judge is spearheading an initiative to reduce the need for prisoners to move around the province in sheriffs’ vehicles for court

appearances thanks to improved videoconferencing. In addition, people with family law matters will likely no longer need to appear in a courtroom as their first step in Victoria, and soon Surrey, with future expansion anticipated to other registries. Instead, they will first be appearing virtually to work with family justice counsellors to narrow and define issues and areas of conflict, and to prepare their file. We are also looking more generally at ways justice-users can resolve and triage their disputes before they appear in front of a judge. I hope for improvements that reduce unnecessary time off work, waiting for procedural matters, enabling remote access where appropriate, and allowing many issues to be resolved without court time. This will allow users, government, and the courts to save judicial, emotional, monetary, and other resources for more intractable issues. These reforms sound simple; however, multiple stakeholders and jurisdictions have to work together to realize major reform. It is a pleasure to work with our courts at all levels, which are led by chief justices and a chief judge who are actively embracing important changes. It is a very exciting and challenging time to be involved with the justice system, and I am grateful for the patience of the Bar as we work through COVID-related challenges. The system will be stronger and better for our shared experience over the last year.

The Honourable David Eby, QC, Attorney General of British Columbia. FEBRUARY 2021 / BARTALK 5

feature PAUL SANDHU

The BC Prosecution Service

Navigating through the pandemic remotely

ublic health concerns and suspension of in-court operations challenged the British Columbia Prosecution Service (“BCPS”) in fulfilling its constitutional and legislative mandates to the province’s residents. BCPS promotes public safety, justice, and respect for the rule of law by making principled charge assessment decisions and conducting fair and effective prosecutions and appeals of Criminal Code and many provincial offences. The pandemic did not suspend the Commission of such offences. Police agencies continued to submit reports to Crown counsel, arrest accused persons, and conduct complex investigations. Consequently, BCPS was compelled to continue its operations notwithstanding the pandemic. Fortuitously, BCPS’s introduction of a weekend and statutory holiday Crown -led bail program in 2018 had already institutionalized a fully remote process to afford newly arrested accused persons their constitutionally mandated judicial interim release hearing before a justice with involvement of both Crown and defence counsel. In response to directions from the Office of the Chief Judge to utilize similar remote processes in weekday Provincial Court bail operations, BCPS collaborated with police agencies to expand and implement a system of remote, electronic police disclosure. This enabled BCPS to continue receiving and assessing criminal charges remotely. Police agencies agreed to maintain custody of accused persons, thereby alleviating 6 BARTALK / FEBRUARY 2021

the need to transport persons to courthouses or correctional facilities for bail hearings. Coupled with the involvement of Legal Aid and counsel of choice, many accused persons have been released without the need for transport or further incarceration. These remote measures ensured continuity for essential bail operations and access to justice for accused persons. To meet its disclosure obligations to accused persons as efficiently, safely, and securely as possible, BCPS also introduced a system of providing electronic disclosure to accused persons represented by counsel. BCPS worked with representatives of the private Bar, developed written support material for counsel, and participated in a summertime webinar hosted by Courthouse Libraries BC. This initiative enabled new files to be processed and spoken to more safely and without unreasonable delay. Additionally, BCPS has been meeting regularly with the judiciary, Court Services Branch, Legal Aid BC, representatives of the Criminal Defence Advocacy Society and the Association of Legal Aid Lawyers, the Public Prosecution Service of Canada, and all police agencies to explore and implement new measures to ensure access to justice while keeping one another safe. Collaboration has led to the creation of online forms and remote appearance processes,

some of which may provide continuing benefit beyond the pandemic. BCPS is, essentially, the province’s largest law firm with approximately 500 lawyers and more than 400 administrative and managerial staff working in diverse communities across the province. These people constitute BCPS’s core strength. Before and during the pandemic, BCPS has proactively encouraged dialogue among colleagues in the areas of wellness and mental health. Beyond the significant personal impacts of prosecutorial work, working remotely brings very real risks of social isolation and added mental health challenges. Consequently, BCPS has worked to alleviate the stigma of acknowledging impacts on mental health. Colleagues are strongly encouraged to remind one another that it is okay to say when they are not okay. Whether in a pandemic or not, wellness remains a critical organizational commitment. The province has witnessed incredible sacrifice among frontline service providers. BCPS is proud to include its employees among the many people who have led the transition of our criminal justice system from a paper driven process to a safer remote electronic process, for which its employees’ efforts and dedication were recognized by CBABC with the 2020 Innovative Workplace Award. BCPS aspires to continue harnessing technology to make the province’s justice system more secure and accessible through the pandemic and beyond, and to support its people in future challenges. Paul Sandhu, called to the Bar in 1994, is the Acting Director of Legal Operations for the BC Prosecution Service.

advocacyinaction CBABC Committees and Sections have been busy in the past two months preparing for policy discussions and submissions. From real estate to family law, members are working to transform legislation and practice in British Columbia. Here are some highlights.

REAL ESTATE CBABC’s Real Estate Sections are reviewing the Standard Form Contracts developed with the BC Real Estate Association (“BCREA”). The Contract of Purchase and Sale and related documents are licensed for use by BC lawyers and realtors and are reviewed periodically by BCREA with input from CBABC. Members are invited to participate in a Thoughtexchange (bit.ly/ bt0221advocacy-1) to provide suggestions for specific changes. Also, through the leadership of our Real Estate Sections, CBABC wrote to the Land Title Survey Authority (“LTSA”) about advance access to the forms and tools required for the Land Ownership Transparency Registry. LTSA promptly wrote back — a testament to the power of the CBABC to gain attention. Read the submission and response cbabc.org/ Our-Work/Submissions.

POLICE ACT REFORMS CBABC intends to make a submission to the Legislative Assembly’s

\ EMAIL: ADVOCACY@CBABC.ORG

consultation on reforms of the Police Act. Described as a “broad inquiry,” the consultation examines the role of police, the scope of systemic racism within BC police’s agencies, and consistency with the UN Declaration on the Rights of Indigenous Peoples. Members practising in the areas of criminal justice, constitutional law, human rights law, municipal law, and Aboriginal law, and those who have experience addressing systemic racism will prepare the CBABC submission.

FAMILY LAW Through the leadership of the Family Law Working Group and with the Sexual Orientation and Gender Identity Community Section (“SOGIC”) and other Sections, CBABC made a submission in January to the BC Law Institute’s (“BCLI”) project to modernize the Child, Family & Community Service Act. BCLI sought submissions on 38 specific recommendations within a narrow scope of review. CBABC concurs with many of the recommendations and provided additional information and additional suggestions to improve the experience of children and families in contact with the child protection system.

PRONOUNS IN COURT Our SOGIC Section consulted with the Provincial Court of BC on its recent Notice with respect to introductions of counsel and others

appearing in court. That Notice (bit.ly/bt0221advocacy-2) together with a corresponding Practice Direction (bit.ly/bt0221advocacy-3) in the Supreme Court of BC has established an inclusive practice of introduction. People now not only provide their name and role, they specify their title and their pronouns. To assist members, CBABC has prepared examples of counsel introductions and a short video available at cbabc.org/pronouns.

MONEY LAUNDERING The Cullen Commission Inquiry into Money Laundering released an interim report in December. In response, the Attorney General expressed concern that FINTRAC (Canada’s financial intelligence unit) and the Government of Canada are apparently failing to share information with British Columbia that could be essential in the fight against money laundering. The Commission continues with hearings on the real estate sector expected to begin midFebruary, and CBABC will be advocating on behalf of lawyers working in that industry. The live webcast can be accessed at cullencommission.ca.

GET INVOLVED CBABC’s policy development and advocacy priorities are determined by its members through CBABC Sections and Committees. Volunteers are always welcome. Contact the Director of Advocacy, Jo-Anne Stark at jstark@cbabc.org.

CBABC has been busy this winter, enhancing parts of our website to help you stay informed. ADVOCACY IN ACTION — We’ve refreshed our Calls for Consultation (bit.ly/bt0221advocacy-4) and Submissions (bit.ly/bt0221advocacy-5) pages, making it easier to learn about Branch advocacy and how you can get involved. LEGISLATIVE NEWS — Trying to keep up with the most important changes from the BC Legislature? We’ve streamlined Legislative Updates (bit.ly/bt0221advocacy-6) and moved it to the Professional Development area of our site.

FEBRUARY 2021 / BARTALK 7

Indigenousmatters JADEN BOURQUE

Social Distance ≠ Extinguished Connections

n March 13th, 2020, the Indigenous Community Legal Clinic (“ICLC”) transitioned from a predominantly in-person clinic to a primarily remote legal clinic as the weight of the COVID-19 pandemic was realized by the University of British Columbia and the legal community. At first glance, it appeared that this move may jeopardize the already meagre access to legal services sought by Indigenous peoples — a conundrum that had been compounded by the onset of the Federal Indian Day School Class Action Settlement (“FIDSCAS”) — however, this proved not to be the case. As the ICLC commenced its navigation of the uncharted territory of remote clinical work, the immediate challenges regarding serving a marginalized population became wholly apparent. First, how does one serve an individual struggling with homelessness, colonization, and no access to technology? Second, how does one provide effective counsel to a uniquely traumatized client such as an Indian Day School survivor? With respect to the first quandary, the ICLC quickly realized that there are limitations to the social distance that can be placed between counsel and the most disadvantaged population of Canada. Simply put, access to legal assistance is not possible without the opportunity to interact in a physical space for those who have been most impacted by the pandemic, such as those finding refuge in makeshift shelters within the doorways 8 BARTALK / FEBRUARY 2021

of buildings on a frigid night. Sadly, this is a grim actuality in Vancouver’s Downtown Eastside where the ICLC operates in the physical realm. Consequently, one must consider the challenges of serving marginalized peoples. For instance, consider the hindrances with distributing a letter to a client with no fixed address. Also, contemplate the difficulty of prospective clients to complete an intake when they have no access to a phone. The solution? Scale back in-person interactions and employ rigorous safety protocols such as physical barriers, mandatory masks, and a meticulous cleaning regimen — walk-in clients are a reality. Regarding the second issue, how does one offer effective legal support to those who have suffered the odious effects of the colonial project? With FIDSCAS underway, the ICLC quickly realized that the process suffered many of the same shortcomings as analogous class action settlements such as the Indian Residential School Settlement Agreement, and saw that there was significant demand for assistance with the traumatic process in which claimants are forced to revisit the atrocities of their lives by collecting a suite of narratives, medical records, and attendance records, or to settle for a quick $10,000 payout by selecting a level-1 harm, which requires nothing of the sort.

This work is demanding, labour intensive, and calls for a trauma-informed approach; and, although it may be argued that this heavy work is best conducted face to face, by virtue of the pandemic, the ICLC discovered that this vital work can still be undertaken in a safe and effective manner via digital platforms and telecommunication. Concomitantly, the reliance on remote practices highlighted the ability of the ICLC to expand its reach throughout British Columbia and beyond. Accordingly, clients have been provided with access to legal services that, but for COVID-19, may not have been available to them. Establishing a meaningful connection with clients is foundational to the practice of law — particularly when one’s clients are perpetually suffering from the malignant impacts of colonization. Bearing this in mind, while it is true that a few FIDSCAS claimants preferred to postpone work on their claims until such a time that COVID-19 restrictions have lifted, the vast majority of claimants have chosen to continue on with the process with many finding it beneficial to share their stories from the comfort of their own homes where they can easily be supported by their loved ones, and finding that their connection with counsel still runs deep. Jaden Bourque is Slavey Dene, Cree, Métis, and Canadian. He is an articling student with the Indigenous Community Legal Clinic.

NIGEL BAKER-GRENIER AND G.L. TERRI-LYNN WILLIAMS-DAVIDSON

Iihldaa: Digital Transformation in the Haida Title Case Iihldaa is the Haida word for transformation. Iihldaa is prominent in Haida art, laws, oral histories, and in the digital era, Aboriginal Rights litigation. In the Haida worldview, Haida Gwaii is a living landscape of SGaana kii dads (Supernatural Beings). The process of iihldaa reveals the interconnectedness between human beings, the natural and SGaana kii dads. Iihldaa is a process with many intermediate states; applying this perspective to litigation incrementally transforms it. The Council of the Haida Nation (“CHN”) filed a claim in 2002, asserting Aboriginal rights and title to the lands and waters of Haida Gwaii (the “Haida Title Case”). Until Canada fully respects the Truth and Reconciliation Commission’s Calls to Action 47, and Article 26 of UNDRIP, the Haida Nation must amass evidence to prove exclusive use and occupation of Haida Gwaii and the surrounding ocean. In 2002, CHN directed legal counsel to prepare its evidence for an electronic trial (“e-trial”). Since then, counsel have worked with CHN to digitize and disclose historical documents, including oral histories, utilizing Artificial Intelligence software (“AI”). In 2021, CHN will complete electronic document (“eDocument”) discovery (“eDiscovery”) using even more powerful AI for the collection and review of millions of eDocuments. AI helps to

reduce the number of duplicates, near-duplicates, and not-relevant documents; prioritize the most relevant documents; and increase quality control of the discovery process. Today’s AI learns simultaneously with the user, ranking and assessing documents based on on-going legal review, and prioritizing and suggesting documents that fit within the lawyers’ evolving criteria for relevancy. AI saves time and is the most efficient means of eDiscovery. In fact, AI is arguably the only way to sift through the Haida Nation’s massive evidentiary record. In addition, although a trial date has not yet been set, the parties to the litigation are finalizing recommendations for an e-trial. Should the trial judge and Court agree, technology will replace all or some of the traditional paper processes. E-trials make it easier to store and locate documents and are environmentally friendly. CHN could not sacrifice the old-growth forests that it has worked so hard to protect in other litigation, Haida Nation v. BC (Minister of Forests) 2004 SCC 74, for paper evidence and legal argument. While Aboriginal rights litigation must necessarily look back in history, there is no reason why legal counsel must remain in the past. Yet, currently, only four trials in BC are proceeding via some degree of e-trial, three of which are Aboriginal rights cases. This is likely to change as society’s increasing use

of technology permeates into the legal system. The CHN is no stranger to technology. Haida Elders have employed SmartBoards to tender evidence in depositions, and adapted Google Earth for the display of place names and their associated historical record and as a platform for digital travels throughout Haida Gwaii. Recently, Haida Elders embraced iPads and Zoom to continue their efforts to preserve the endangered Haida language during the COVID-19 pandemic. This serigraph by acclaimed Haida artist Robert Davidson, illustrates an eagle in the process of iihldaa, revealing its true self. Similarly, the Haida Title Case, through its use of AI and a full e-trial, is among a few cases that could pave the way for an iihldaa of Indigenous litigation. And, more importantly for the Haida Nation, the digital iihldaa will ultimately increase Haida citizens’ access to an unprecedented breadth of Haida knowledge. This iihldaa will help reveal the authentic Haida Nation — before residential schools and colonization impacted knowledge — thereby contributing to the further revitalization of Haida culture and laws. SERIGRAPH: Portrait of an Eagle Transforming — Robert Davidson. Nigel Baker-Grenier is a Gitxsan-Cree lawyer; G.L. Terri-Lynn Williams-Davidson is General Counsel for the Haida Nation; both are with White Raven Law and are scholars, dancers, and singers.

FEBRUARY 2021 / BARTALK 9

feature NICHOLAS MAVIGLIA

Can You Hear Me Now?

Practising law within the digital divide

ike anything else, the business of lawyering changes with time, and, more often than not, it is advances in technology that propel these changes. Those living in the interior or northern regions of British Columbia are no strangers to change, but when it comes to technological change, we have grown accustomed to disjointed and bumpy rollouts that are a couple steps behind our friends in the larger centres. For lawyers practising in the interior or northern regions of British Columbia, this digital divide has created new opportunities, but also new challenges in serving clients. At the outset, it should be said that there is a huge need for digital infrastructure in the large and relatively sparsely populated interior and northern regions of this province. Everyone here can benefit from high-speed Internet and cellphone coverage; however, the reality is that this technology is not universally available. Despite the availability gap, the benefits of connectivity are manifest to interior and northern law firms and have allowed for a transformation in how they provide legal services. Hereâ&#x20AC;&#x2122;s how:

In place of procuring and servicing dedicated hardware and software, which can be difficult in a small centre, nearly any computer can run cloud-based practice management software like Clio or office productivity software like Office 365. These relatively inexpensive programs make it easier to go paperless, send an email, store and retrieve data and to send documents to a client from almost any location. Concomitant with these changes, clients also now expect quicker responses and quicker access to their file. Interior and northern firms may also leverage Chrome Remote Desktop to efficiently transition to remote work and facilitate out of office client meetings. EFFORTLESS E-FILING AND REMOTE COURT APPEARANCES

Rural practitioners used to have to retain a registry agent or process

TRANSITIONING TO THE CLOUD

We have grown accustomed to disjointed and bumpy rollouts that are a couple steps behind our friends in the larger centres.

Cloud solutions for practice management programs, data storage and office productivity software have all lessened fixed IT costs and made it easier to start or scale up a practice.

server to file routine documents in offices or court registries located in larger or distant communities. The availability of e-filing services has made it easier to file documents

10 BARTALK / FEBRUARY 2021

while avoiding the considerable costs of agents and couriers. It has also reduced the time necessary to complete many transactions, which has, again, led to shifting client expectations respecting the time and cost necessary to complete certain matters. Rural barristers practice has also been aided by the transition to increased remote court appearance. Prior to changes brought on by COVID, it was common to travel to courthouses throughout the interior and northern regions for remand days and other short matters. Remote appearances have lessened the need for time travel, though at the cost of being able to meet with clients or counsel at the courthouse. ACCESS TO JUSTICE WITHOUT INTERNET ACCESS

The ability to take advantage of the abovementioned technologies, is however, constrained by the availability of the necessary infrastructure. Unfortunately, many residents in the interior and northern regions, particularly in smaller outlying communities and First Nations reserves, do not have access to highspeed Internet or cellphone service. For these clients, it may not be possible to attend meetings or court remotely, obtain copies of documents digitally or even regularly call their lawyer. Further exasperating the problem, the interior and northern communities do not have as many support resources these clients can turn to for help accessing technology. As the practice of law continues to go digital, those without access to digital infrastructure will be further disadvantaged. Nicholas Maviglia is now the staff lawyer for Parents Legal Centre in Williams Lake.

When Kamiah’s world gets turned upside down, help her stay strong.

A Will can help do that. What if you could help your clients create a legacy where fewer children suffer from illnesses? When you help your clients leave a gift in their Will to BC Children’s Hospital Foundation, you’re empowering them to do just that. Discover how you can help your clients leave a legacy. bcchf.ca/legacy-advisor Hilary Beard, Gift & Estate Planning 604.875.3679 hbeard@bcchf.ca

More than a magazine. A destination for BC’s lawyers.

12 Months Coverage 6 Issues | 3 Properties BarTalk Magazine: Viewable in Print, Digital and Online formats Delivering compelling legal news, trends + career profiles with upcoming professional development + virtual event opportunities. Put your business in front of your target audience with BarTalk Magazine. BUNDLE 3 OR MORE ISSUES TO SAVE!

LET’S TALK: ads@cbabc.org

FEBRUARY 2021 / BARTALK 11

feature SHANNON SALTER

Justice in the After-Times

Legal technology or human-centred design?

n the early months of the COVID-19 pandemic, courts around the world were forced to largely shut down, and then quickly pivot to using online tools to attend to urgent matters. Months later, there’s a growing consensus that it’s time to digitally transform the justice system, but will that really increase access to justice? As a mainly online tribunal, the Civil Resolution Tribunal (“CRT”) stayed open and operating normally last year. Over its short history, the CRT’s jurisdiction has expanded to include strata, small claims, motor vehicle injury, and co-operative and societies disputes. From the beginning, the tribunal has been extensively co-designed with community legal advocates and their clients. This has led the CRT to focus on collaborative dispute resolution, with adjudication as a valued last resort. While the CRT offers mail, telephone, and (pre-pandemic) inperson services, over 99% of the approximately 20,000 disputes we’ve handled involved online tools. The CRT is paperless. Most of our nearly 100 staff and tribunal members have always worked from home. Dispute resolution services, from applications, negotiation and mediation processes, uploading evidence, and receiving decisions and orders, are online. Aside from relocating some frontline staff to remote work, and supporting colleagues with sudden caregiving and other responsibilities, we didn’t have to adapt. Instead, we focused on the 12 BARTALK / FEBRUARY 2021

health, mobility, and economic impact of the pandemic on CRT users. We helped by waiving fees in cases of financial hardship, pressing pause on default orders, and extending deadlines through email requests. The CRT collects qualitative and quantitative data on all aspects of our operations. We survey participants who go through the CRT process and ask them what they thought about it. Were they treated fairly? Was their dispute resolved quickly? Did they understand the process? Would they recommend it to others? These numbers have stayed stable over the past year, and we publish them monthly on the CRT website. We also track the number and kind of disputes, settlement rates, and timelines, among other things, and we’ve noticed a few changes as a result of COVID-19. The CRT usually handles about 135 disputes per week. This number plummeted in late March, but has slowly rebounded. Because we kept operating, we have no backlog, and are still resolving contested small claims disputes in a median of 59 days. Unsurprisingly, disputes about breaches of contract, especially forfeited deposits and cancelled events and services have increased. Strata disputes have also increased by about 25%, possibly due to greater use of shared facilities and proximity

to neighbours as people work and study from home. This data helps us adapt our processes and resources to better meet public need. Before the pandemic, community legal advocates helped the CRT accommodate the needs of people with health, mobility, economic and other access barriers. Now, many more of us are also experiencing these challenges, and the CRT has scaled to meet this increased human need. It helped that we offered online tools. But we stayed open because of human-centred design and the outcomes it brought; free, plain language legal information and tools through the Solution Explorer, simple fee waivers, free interpretation services, staff welltrained in mental health issues, cultural competency and customer service. Most importantly, a culture of collaboration, inclusivity, and respect. It’s important to remember that technology is not a panacea, a cure-all for our access to justice woes, though it might have offered temporary pain relief for our COVID-related ones. Adding a technology interface to existing, inaccessible processes is not transformative, and can add further barriers. Building a flexible, resilient, and responsive justice system requires something that’s both much harder and much easier than legal technology. It requires fundamental system and culture change, co-designed and tested with those who need our public justice system the most. Shannon Salter is CRT Chair, a CanLII board member, adjunct professor, and was named one of Canada’s Top 25 most influential lawyers. Twitter: @ShannonNSalter @CivResTribunal

feature CHANTELLE COULSON

Drug Treatment Court of Vancouver

Operations during COVID-19

n March 18, 2020, British Columbia declared a state of emergency due to COVID-19. Like all other courts in the province, the Drug Treatment Court of Vancouver (“DTCV”), which operates out of Provincial Court at 222 Main Street, suspended all in-person operations immediately. Fortunately, our dedicated treatment team, comprised of Vancouver Coastal Health counsellors and Corrections BC probation officers, jumped into action and quickly developed virtual treatment alternatives to replace the comprehensive in-person treatment previously in place. Zoom group sessions were developed, with tablets being provided to participants who did not have video-capable devices, and reporting and counselling sessions were done by phone. Our treatment team worked tirelessly to stay connected to participants and to help them continue to engage with their recoveries during this unprecedented time. In our court-supervised treatment program, participant interaction with the DTCV judge is critical and the loss of this connection, loss of court supervision generally, and changes to services delivery were all difficult for our participants initially, many of whom are among the most marginalized in the province. In the first month of the pandemic,

one of our participants passed away from overdose. On May 19, 2020, DTCV became one of the first courts to re-open in Vancouver for remote operations. We conducted weekly court checkins by phone instead of in-person and Zoom treatment sessions and phone reporting continued. We adapted our graduation requirements to allow for graduations without the usual clean urine screen requirements, as we were not able to conduct urine testing at the Treatment Centre for health and safety reasons during this time. The team held its pre-court meetings by phone to start, and we later transitioned to MS Teams. In these earlier days of the pandemic, it seemed that there were constant changes to our service delivery and to our operations. Crown, defence, the DTCV judge, our court clerks, and the treatment team had to continuously adapt and show flexibility as we modified everything we had done in the program for the last 20 years. Today, we are operating in a COVIDcompliant manner and are using a variety of technologies to ensure we maintain program integrity and connect with our participants in the best way possible. We use a combination

of phone, in-person, and MS Teams for court appearances and team meetings. Urine testing is now being done at our dedicated Treatment Centre in accordance with health and safety protocols, our All-Star list is back up and running, and phase progression through the program has resumed. We have been able to accept new participants into the program, conduct sentencing and discharge hearings, and celebrate graduations. We even have a virtual spinning wheel that we use to select prizewinners for those participants who have shown perfect program compliance! Overall, operating in DTCV during the last 10 months has brought with it many challenges, much uncertainty, and, frankly, pure exhaustion — but it has also brought about positive change and taught us many lessons that will stay with us long after the pandemic. Most importantly, it has shown us the resiliency and dedication of our participants, who have courageously continued to battle substance misuse during the COVID-19 pandemic and during a worsening opioid crisis. Their hard work is truly inspiring and supporting them on their journeys has kept us all united during an otherwise difficult and isolating time. The Drug Treatment Court of Vancouver has the same heart and soul as it always has — it just looks a little different now!

Chantelle Coulson, Prosecutor — Drug Treatment Court of Vancouver, Public Prosecution Service of Canada, CBABC Criminal Justice Section Executive member. FEBRUARY 2021 / BARTALK 13

sectionnews uuu BC Courts Adopt

Policy on Pronouns and Form of Address This fall, the Sexual Orientation and Gender Identity Community (“SOGIC”) Section Executive assisted the Provincial Court in developing a policy considered a first for Canadian courts: mandating a procedure that asks lawyers to provide their pronouns when introducing themselves and their clients in court. The Provincial Court Notice asks people to state their name, title, and pronouns to be used in the proceeding, a shift from only requiring individuals to introduce themselves with stating their name, title and the spelling of their last name. The Supreme Court of BC adopted these same procedures. The new mandate allows for a court system that is more inclusive of those who identify as non-binary. It also aims to improve the experiences

of gender diverse people in the legal system and avoids the issue of misgendering of lawyers and clients during a hearing. While SOGIC notes that BC’s courts still have more work to do (like moving away from gendered titles for judges such as “my lord” or “my lady”), the new policy has piqued interest in other Canadian jurisdictions.

uuu Senior Lawyers During COVID-19

In many ways, the members of the Senior Lawyers Section are particularly impacted by COVID-19. This Section traditionally hosts in-person meetings, but responded to provincial restrictions by hosting their first online meeting, bringing together their members after a long hiatus. The December meeting covered how members can transition through the changes brought by the pandemic into retirement, and the opportunities of pursuing other

fields related to law, such as legal coaching. The speakers provided their personal experiences and insights on how to remain relevant and valued, even in retirement.

uuu More Avenues for Remote Meetings

As the pandemic progresses, Sections have become more creative in how they connect with members. The Immigration Law Section hosted a meeting via Discord, an online messaging platform that includes “servers” where groups can meet. The Women Lawyers Forum — Vancouver Island hosted a meeting via Jackbox, an online party video game for groups of players. Hosting online meetings on different platforms promises an increased number of interactive ways through which lawyers can engage with each other, and potentially reduce “Zoom fatigue.”

BC WLF UPDATE — by Aisha Naveed

How to Avoid Burnout from Working Remotely In the past, working from home was seen as a perk for employees, due to the benefits of being in a comfortable workspace instead of a formal office setting. By now, a lot of employees have been working remotely for several months, and participating in all meetings and interactions online. However, while there are advantages to the home office, they don’t necessarily outweigh the disadvantages of only being able to communicate with your colleagues through a screen. There are obvious health risks of sitting in front of your computer all day with little to no time outside. It can be tiring for your body and mind to keep up with. There is also a loss of human touch as online meetings often disallow you to read facial expressions and body language. The focus on a person’s face while video conferencing is often distracting. How do I look? Do I look engaged? Am I smiling enough? It can be exhausting. Surely, working remotely has at least made life easier for the working mothers? Think again. In addition to too much screen time, working mothers are now dealing with additional issues such as the child’s perception that working from home means you are accessible 24/7, the guilt from setting these boundaries, and an unorganized work schedule from lunches and breaks. So what are some ways to avoid a “Zoom Burnout” and remain productive at home? First, try to follow your set schedule unless there is an emergency. Make sure to also set aside some “me time” to get away from the screen and spend time on hobbies. Finally, and most importantly, stay positive. The pandemic will eventually become a time we look back on and say, “we made it through that.”

14 BARTALK / FEBRUARY 2021

professionaldevelopment \ EMAIL: PD@CBABC.ORG

WEBSITE: CBAPD.ORG \

CBABC Professional Development did not escape the pandemic’s path of digital transformation. This year, we rose to the challenge of delivering PD programming in new ways to meet the needs of our diverse legal community. We

now offer new features in webinars, like breakout rooms, interactive live polling, fireside chats, group discussions, live demos, and the use of Thoughtexchange to engage participants and speakers digitally. Our recent sessions with Dr. Lisa Gunderson on systemic racism used many of these features. Access the webinar at bit.ly/bt0221pd-1 & virtual coffee chat at bit.ly/bt0221pd-2. Zoom-fatigue aside, we have seen increased engagement this year, surpassing 1500+ individual registrations since Sept 2020 — double last year’s! While CBABC has traditionally been known for our unique, retreat-style full- or multi-day conferences, we have successfully delivered multiple virtual conferences during the pandemic. These virtual conferences offer unique experiences that have overwhelmingly well received. Stay tuned for more information on upcoming virtual conferences.

JOIN US FOR UPCOMING PROGRAMS: Branch PD

THE NCA PATH FOR SUCCESS: SECURING ARTICLES

Feb 5, 2021

12:30 – 2:00pm PT

uuu

bit.ly/bt0221pd-3

FINANCIAL PLANNING FOR LAWYERS: CREATING A PLAN THAT’S RIGHT FOR YOU

Feb 25, 2021

12:30 – 2:00pm PT

uuu

bit.ly/bt0221pd-4

A DEFINED BENEFIT PENSION PLAN FOR LAW FIRMS

Mar 3, 2021

12:30 – 1:30pm PT

uuu

bit.ly/bt0221pd-5

CBA — SKILLED LAWYER SERIES: ESSENTIAL SKILLS FOR COMPETENCIES FOR VIRTUAL HEARINGS AND REMOTE LITIGATION

8 sessions: Feb 10 May 18, 2021

9:00 – 10:30am PT

uuu

bit.ly/bt0221pd-6

OBA — ARTIFICIAL INTELLIGENCE TOOLS AND ALGORITHMIC BIAS: WHAT LAWYERS MUST KNOW

Feb 24, 2021

2:00 – 3:00pm PT

uuu

bit.ly/bt0221pd-7

Pan Canadian PD

WATCH OUT FOR… IN MARCH! LGBTQSI+

Law Webinar Series Part 3: Emerging Issues in LGBTQSI+ Law Childhood Experiences and the Family Justice System Young Lawyers Law Series Part 2: Enhancing Your Professionalism A Virtual Townhall with Chief Justice Hinkson on Virtual Courts Supportive Working Relationships Series: Fostering Reconciliation and Dismantling Colonial Approaches Adverse

Find details and registration links in our new PD & Events Schedule uuu bit.ly/bt0221pd-8

FEBRUARY 2021 / BARTALK 15

feature LISA PICOTTE-LI

Digital Transformation is About People Change by satisfying basic human needs to learn, belong, and grow

he traditional structure of work meant that putting in a full day of work would result in about a dayâ&#x20AC;&#x2122;s work of output. But if pace, scaling, and development were fast in the pre-COVID-19 world, the current pandemic environment has expedited transformation even more, with digital strategies taking the lead and reshaping the future of work. Leveraged work, where one day of work can result in exponentially greater outputs, is increasingly more valuable and sustainable. A regulatory inspector, for example, can create value that exceeds two inspectors working twice as hard by leveraging digital tools and smart technology. Ten inspectors working ten times as hard will have dramatically different outputs depending on whether their work has been leveraged. This is also true for lawyers, where working in an out-dated model can only produce as much as the time and effort that is put in. While billable hours have not been optimized for time efficiency, clientsâ&#x20AC;&#x2122; perceptions of value have shifted, notably in the response and recovery to COVID-19. Nearly a year after the pandemic acted as a catalyst for transformative change, organizations have prioritized, supported, and implemented digital strategies that would normally have taken years. With the acceleration of digital improvements brought upon by the health crisis, leveraged work and sustained transformation have become essential drivers for 16 BARTALK / FEBRUARY 2021

productivity and client engagement. The way that services have adapted to digital experiences, responded to daily changes in demand and behaviour, and attempted to maintain lasting improvements are already influencing performance and competitiveness in the future world. But anyone can purchase technology and use tools like artificial intelligence and algorithms; successful transformations require investment in people to make the technology useful. Possibilities for improvements and efficiency gains require reinventing business models and, at their core, business models are people working together. Some people are ready for change, others are not, and digital strategies depend on the readiness of people to succeed. Below are three areas for consideration to future proof workforces. 1. People need to upskill to support and be supported by technology. Whether it is distributed work arrangements or deep learning technologies, good judgment and leadership to navigate crisis has become far more important than how much or how hard an individual works. Learning to use the right tools at the right time are integral for people-led, technology-supported changes that augment and optimize human and machine expertise.

2. People need to build, measure, and learn to the pace of crisis. The luxuries of time, funding, and talent are abbreviated during a pandemic. But times of crises have also generated some of the largest businesses and most successful innovations. By focusing on agile ways of working and taking bold risks, the execution of initiatives can be expedited through phases of testing, scaling, and refining. There may be more room for error, but there are also more opportunities to fail fast and recover. 3. People need to engage and be empowered to transform. Culture shifts require time, persistence, and understanding of the problems that technological tools are being used to solve. Lasting digital transformation requires ownership of changes and mitigating against risks and fear. Investing in individuals who are innovative, adaptable, and intellectually curious can drive change; investing in those who can manage these individuals to outperform will drive transformation. The COVID-19 pandemic has changed the nature of work. While it has had devastating consequences, it has also expedited digital transformation and highlighted the best and worst of people. If the lessons of the crisis can help people rise above the daily challenges, then technologies developed and amplified during the pandemic can be leveraged toward a stronger future. Lisa Picotte-Li is the director of operations at a provincial safety regulator and adjudicates correction and discipline of federal inmates. During the pandemic, she led the transformation of regulatory assessment services. The views are those of the author.

communitynews NEWS

Virtual Opening of Williams Lake Indigenous Court Representatives of local First Nations, Métis, and the Yeqox Nilin Justice Society joined by Chief Judge Melissa Gillespie and David Eby, Attorney General, virtually celebrated the opening of the Williams Lake Indigenous Court on December 11, 2020.

NEWS

New Abbotsford Courthouse Opened for Provincial Court Operations The Provincial Court is now sitting at the new Abbotsford Law Courts as of January 18, 2021. Located at 32375 Veteran’s Way, adjacent to the Abbotsford City Hall, the new Court will replace the existing courthouse at 32203 South Fraser Way in Abbotsford. The new building will double the capacity of the existing courthouse, allow future expansion, and incorporates innovative design and technology. The Abbotsford Law Courts has 14 courtrooms, including eight Provincial Court and three Supreme Court courtrooms and three rooms suitable for case conferences, restorative justice and Indigenous justice cases. The building is four floors in an area of 180,000-square-feet. By including space for a law library, Community Corrections, and BC Prosecution Services, it will provide improved access to a range of legal resources. Parties booking hearings at the new Abbotsford Law Courts can continue to use the contact information found at provincialcourt.bc.ca/ locations-contacts.

The Tsilhqot’in Nation says the court will be grounded in cultural traditions and will focus on healing and balance for the accused. Indigenous Courts currently operate in seven BC communities — New Westminster, Duncan, Kamloops, North Vancouver, Merritt, Williams Lake, and Prince George. Chief Judge Melissa Gillespie said, “... We are looking forward to opening BC’s eighth Indigenous Court in Hazelton in the near future.” Read more: bit.ly/bt0221p19-1

WorkSafeBC Appeals & C P P D IS A B IL IT Y A P P EA LS

604.591.8187

390 Howard Ave. Burnaby, B.C. V5B 3P8 Canada

Preferred Supplier of:

www.wcblawyers.com FRE E C ON SULTATI ON

www.progroupbc.ca

Gosal & Company · Barristers & Solicitors ·

Sarj Gosal B. A. , LL. B .

City Centre 2 304 - 9639 137A Street, Surrey, BC V3T 0M1

FEBRUARY 2021 / BARTALK 17

practicetalk DAVID J. BILINSKY

Digital Transformation Moving past the present r Oh, then won’t you embrace me?... r — Music, lyrics and recorded by Greg Laswell.

hat does it mean for law to move into digital transformation? Let’s take a step back and get a bit of perspective. At the beginning of time, law firms and courts kept all records on paper. The first step along this transformative path was to convert to electronic records. “Paving the cowpaths” meant that all records were now kept in electronic folder systems that were the electronic version of the file folder — or in other words, “digitalized.” All files were still kept the same and searched by brute force. Similar to paper, all storage and organizational systems were analogous, albeit on a digital platform. This is only slightly transformative since the same ways of thinking were used to handle digital documents as they did with paper. To take the next step toward transformation, new ways of doing things must be chosen. Moving to a digital filing system allows for digital searches across the whole database; and it allows for new ways of working as all files can be shared and accessed from home or a remote office. Practice management software can integrate with the filing and accounting systems, resulting in lawyers working from a digital desktop. In the court situation, case management software can 18 BARTALK / FEBRUARY 2021

now be used that integrates scheduling with court files, HR systems and more. It is the bringing together of multiple systems in one package that starts to open up new ways of thinking and with it, new processes.

into lines of code. The code and the agreements contained therein exist across a distributed, decentralized Blockchain network. The code controls the execution, and transactions are trackable and irreversible.

Salesforce.com’s publication, “State of the Connected Customer,” states that “technology has significantly changed their expectations of how companies should interact with them.” For example, portals: secure websites, allow clients to gain access to all communications and documents on their file 24/7 and avoid insecure ways of communicating such as email. Furthermore, they can respond and leave instructions without going through voicemail or email jail.

Smart

The next step will be in applying Artificial Intelligence (“AI”) and Digital Analytics (“DA”) to law. AI already has revolutionized legal research, legal contract review, as well as litigation case analysis. DA has the promise of providing insights into new services that can be offered to clients by analyzing firm wide data based on client profiles. Lastly, we have the transformation of the law via technology. Smart contracts on the Blockchain are an entirely different beast from a traditional contract. “A smart contract is a self-executing contract with the terms of the agreement between buyer and seller being directly written

contracts permit trusted transactions and agreements to be carried out among disparate, anonymous parties without the need for a central authority, legal system, or external enforcement mechanism.” (per Investopedia)

Disputes over smart contracts can take place via Online Dispute Resolution (“ODR”) built into the Blockchain using virtual juries. The next step with ODR is to allow the software to help resolve disputes as the deciding party. The Blockchain can be used to replace traditional ways of doing things. 20 Real-Life Uses for the Blockchain (bit.ly/bt0221p18-1) lists such uses as enforcing copyright; replacing land, automobile and other title transfer systems, medical record keeping, wills, equity trading, tracking prescriptions Continued on page 21 >>> 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, Practice Management Advisor (on leave), Law Society of British Columbia Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

dave’s techtips How Can You Further Your Firm Down the Digital Transformation Path? uuu CYBERSECURITY COVID has only increased our working from home with distributed data sets on multiple devices and entry points into the office network. One way to harden your system is to put all your data in a secure cloud service that stores your data in a fully encrypted manner, where only you have the decryption key (a “Zero Knowledge” service). Cloudwards.net (cloudwards.net/best-zero-knowledge-cloud-services) has rated the five best zero-knowledge cloud storage services — with Canada’s sync.com coming up on top.

Continued from page 20 >>>

and many others. With increased use of the Blockchain will come increased use of ODR and less reliance on traditional court systems. This is the transformative power of technology. What is the future use of technology in law? Pega.com states: “Leaders are less concerned about using technology to increase profits, with 46%

uuu ADVANTAGES OF SYNC Sync is the strongest encryption possible, it demonstrates to your clients that security is important to you. Sync keeps track of all document versions and changes, you can share and collaborate just like you would with Dropbox, but securely, they state that sync.com meets global data privacy compliance (USA-HIPAA, EU, UK, CAN-PIPEDA) and your data remains in Canada.

uuu AUTOMATING AND INTEGRATING SYSTEMS Technology can automate the business side of the practice. By integrating billing, time keeping, general and trust accounting, calendaring, conflict checking, document automation, email and file integration, case management, and file management,

citing cost savings and 43% citing revenue generation as changes they are trying to achieve. Instead, 65% of leaders see it as an avenue to achieving higher quality work. Fifty percent of the leaders surveyed also believe technology will create more reliable work.” In order for law firms and justice systems to move forward, I

you will set the stage for the next round of automation such as data analytics, AI, and process redesign for effectiveness and efficiency.

uuu PEOPLE You can install the latest, firstrate tech systems but ultimately it may all be for naught unless you can implement change strategies that lead people to adopt the new systems. Part of the magic of digital transformation is the change in thinking that occurs when people use and think about how the new systems rework business processes. Leadership is the magic elixir. Explain why your firm is adopting these new systems. Outline the expected benefits, for not only the organization but also for staff. Be an early adopter and recruit other early adopters. Communicate wins. Acknowledge setbacks and handle criticism positively and early. Keep your eye on the long-term goal(s) and help others do the same. © 2021 David J. Bilinsky

believe it will be essential for organizations to view technology as a way to change not just the way things are done but HOW you can do things differently and WHY. Digital transformation is about new ways of thinking, changing things and moving to the future. I can just hear technology saying to lawyers and judges: “Oh won’t you embrace me?” FEBRUARY 2021 / BARTALK 19

feature SHARON SUTHERLAND

Digital Transformation v. Digital Replication in Mediation Practice

hen restrictions on face-to-face meetings suddenly arose last March, the challenge to meet urgent conflict resolution needs also presented a unique opportunity to examine process assumptions. Previously, many parties, advisors, and mediators viewed online meetings as a compromise solution to meet specific challenges (e.g., travel costs) where parties were not geographically close. Where it was possible for people to be in the same room, the assumption was that they should be. Forced online, conflict resolution professionals re-examined some unquestioned assumptions about communication, including that: verbal communication is always best;

direct

clients

are used to face-to-face meetings, and comfortable in that format;

rapport

is easier to build in person;

and good

communication requires you to experience all non-verbal cues.

Interestingly, the move online also encouraged conflict resolution professionals to meet readily and across distances to share experiences and expertise freely. COVID-19 has of course generated new and heightened conflicts as well as process challenges for mediators learning new skills. For example, beyond mere technical challenges (like how to operate virtual break-out rooms), we had to address more fundamental issues. How do we best mediate a dispute where the parties are co-located (roommate disputes while quarantined) but the 20 BARTALK / FEBRUARY 2021

mediator is at a distance? How can mediators ensure party safety (physical and emotional)? How can we address needs of parties (computer hardware, adequate bandwidth, technological comfort, and expertise) in circumstances of limited or disparate access? After months of building new skills and questioning old assumptions, some may look forward to a return to pre-pandemic practices, but many others are identifying ways to offer better, more flexible, client-centred process choices. After all, we can expect that parties used to working from home will ask why they need to pay room rentals and give up travel time to meet in person. Here are a few areas where I hope pandemic learnings will continue to transform the practice of consensual conflict resolution. Some

disputes and some parties are better served by online processes. What disputes or individuals were better accommodated online? Every time we recommend mediation, we should consider whether online, face-to-face, or a mix of processes might better serve.

Some

senior mediators brought newer mediators into their work as co-mediators for the first time — in many cases because newer mediators brought technological expertise. Positive experiences and relative ease of obtaining client buy-in when there is a clear process value to two mediators may mean it will be easier for new mediators to find such support.

Confidentiality

was a big topic as mediators discussed platform security, document exchange, electronic signatures, and more. Many edited their Agreement to Mediate to expressly disallow recording or broadcasting. Of course, recording and broadcasting are possible in-person, too, so newly raised awareness should carry over and improve practice.

There

are many different online tools, offering different benefits and challenges. Is WhatsApp better for international mediation than Zoom? Is videoconferencing always best, or might it be preferable to conduct some or even all of a mediation by audio-only, online chats or even texts? What do the parties use for normal communication, and might that be a better platform choice? Virtual

meetings have broadened the community of conflict resolution professionals. Our “local” Communities of Practice and Mediators’ Lounges now welcome “regulars” from across North America, and frequently include participants from African countries, the UK, Australia and New Zealand. I hope we can build on this growing international exchange of ideas as we examine how best to serve our own communities. Going forward, what other temporary accommodations to COVID should supplement, replace or transform our old practices? Reflective practitioners will use lessons from this pandemic to offer better, clientcentred and consciously chosen digital, face-to-face, and hybrid options to resolve disputes. Sharon Sutherland is Director of Strategic Innovation at Mediate BC and a mediator on its Quarantine Conflict Resolution Service. @mediatebcsoc linkedin.com/company/mediatebc

feature JOHANNA GOOSEN

Digital Management in a Pandemic COVID-19 crisis a catalyst for change

n March of 2020, in response to the COVID-19 pandemic, WorkSafeBC rapidly transitioned more than 2,500 employees from working in-office to working remotely. This transition included the Board’s litigation team. WorkSafeBC relies heavily on a direct relationship between a manager and a team of legal officers to foster accountability and track progress. When the pandemic hit, the litigation team was thrust into an online working environment in which that relationship was more challenging to maintain. The only solution was to figure out how to transition to digital practice and people-management strategies as quickly and seamlessly as possible. Two key strategies were important in making this digital transition for WorkSafeBC’s litigation team: cultivating regular and productive digital communication, and making a pronounced shift toward technology-based management tools. The biggest hurdle was sustaining engagement. While many tools are available for communication (such as online chat, video calls, or even phone calls), they are not as natural to lawyers as walking into someone’s office for a chat. For WorkSafeBC, encouraging frequent, informal use of these tools was key to developing good digital-communication habits in general. WorkSafeBC’s litigation team keeps an online chat open at all times that

is available for any and all discussions. Because this platform feels social and fun, it has become the central channel of communication for the litigation team, where questions are asked and answered, and successes are shared — along with the occasional GIF. In fact, because this interaction always includes the entire group, it is arguably more effective at fostering collaboration than dropping by a team member’s office. The move to working from home was also an urgent catalyst for WorkSafeBC’s transition to digital practice management. Because of the legal officers’ lack of visibility to management, obtaining trackable file information became more important. As a result, WorkSafeBC mined the capabilities of its existing software to ensure that key information was being consistently recorded and tracked.

Ultimately, instead of the feared decline in productivity over 2020, the litigation team has had the most productive year on record. The expanded use of WorkSafeBC’s practice-management software has meant detailed reporting metrics can now be provided on a near-live basis, both for internal tracking

purposes and for external reporting. This digital transition was in progress prior to the pandemic, but the need to move quickly has driven it much farther and faster than planned. Ultimately, instead of the feared decline in productivity over 2020, the litigation team has had the most productive year on record, and job satisfaction among the legal officers has remained steady — although they do note that they still miss the office drop-by. While the transition to remote working and digital tools certainly cannot be credited with that success, it did not stand in the way. While COVID-19 presented immediate challenges that had to be overcome, it also created opportunities for change and growth. For WorkSafeBC, it has driven better engagement in digital communication and a faster and more effective transition to digital practice management. It can be easy to look back at 2020 and see only its struggles, but undoubtedly most large organizations have taken similarly significant steps forward. WorkSafeBC’s litigation team represents a narrow example of how crisis can catalyze positive change. As we pause and reflect on 2020, we can all look forward to learning many more successful strategies to take forward with us into this new digital age of practice. Johanna Goosen is Manager of Litigation at the Workers’ Compensation Board, representing the Board at all levels of court in British Columbia. FEBRUARY 2021 / BARTALK 21

feature BARRY PENNER, QC

Important Changes for Arbitration in BC

New Act, rules, website, and a new name

his is the first full year the new Arbitration Act is in force in British Columbia. In addition, there are new procedural rules, a new website and a new name for the oldest arbitral institution in our province. With courts busier than ever due to COVID-19 backlogs and delays, interest in resolving disputes without resorting to traditional litigation has never been greater. There is a need to provide business and individuals with options outside of court. Last fall, a modernized Arbitration Act passed by the BC Legislature came into force (bit.ly/bt0221p24-1). It applies to domestic arbitration (non-international) cases. BC also has an International Commercial Arbitration Act, which applies if one of the parties is based in a jurisdiction outside Canada. It was substantially revised in 2018. The new Arbitration Act is based on a United Nations arbitration model adopted by many other jurisdictions. Important changes include strengthened confidentiality, broad procedural powers to ensure a just, speedy, and economical resolution of disputes, along with simpler and faster appeals. Alternatively, parties can agree to opt out of appeals altogether. In addition, the well-known 35-yearold British Columbia International Commercial Arbitration Centre has rebranded and is now known as the Vancouver International Arbitration Centre (“VanIAC”). The board of 22 BARTALK / FEBRUARY 2021

directors consistently received feedback that the name “Vancouver” is better known internationally than the name of our province. This is due to the 2010 Olympic Games and other events, which have raised the global profile of our biggest city. Under the new Arbitration Act, VanIAC is now a designated authority to quickly appoint arbitrators when parties cannot agree on a decision-maker. It also has jurisdiction to resolve fee disputes between arbitrators and parties, without needing to involve a court. VanIAC has developed updated domestic arbitration rules to supplement the new Arbitration Act, supporting the orderly resolution of disputes. These new rules include the option of an expedited process for claims under $250,000. The goal is to offer access to the benefits of arbitration to a wider variety of claims. The new Arbitration Act, along with the updated procedural rules adopted by VanIAC, makes arbitration an attractive alternative.

for businesses operating in a competitive environment. Compared to court, arbitrations can help achieve a speedier and more economical outcome. Parties to an arbitration can shape the process, including choosing the procedural rules and selecting a knowledgeable arbitrator, who in essence serve as a private judge. However, it is recommended to include an arbitration clause at the time of entering into a contract, in case the parties can’t agree on how to handle a dispute after one arises. It’s also worth pointing out that arbitration is different than mediation (which is something VanIAC is also involved in). While mediation involves a neutral third-party who can help resolve a dispute by making suggestions and using persuasion, arbitrators make decisions, which are binding on the parties. VanIAC maintains a roster of both pre-approved arbitrators and mediators with expertise in many different areas, including construction, energy, and ICBC motor vehicle claims. In the era of COVID-19, VanIAC has implemented social distancing measures. Hearings can be conducted by teleconference, video, or in writing. We all hope to avoid disputes, but they occasionally occur.

A new website has been launched to support the changes, which are intended to keep British Columbia at the vanguard of jurisdictions supporting arbitration.

If you would prefer to avoid going to court, consider including an arbitration clause in your agreements naming VanIAC as the administering body. Sample clauses can be found at vaniac.org.

While court proceedings are generally open to the public, arbitrations are typically kept private. This is helpful

Barry Penner, QC is the Managing Director of Vancouver International Arbitration Centre.

communitynews TIPS FROM

WHEN DIGITAL JUST ISN’T POSSIBLE

CLBC has been addressing the “digital shift” in legal information for many years now. We are your conduit to digital legal information inside and away from a physical branch (our free Remote Access to Subscription Databases collection, for example, lets you view e-books, journals, case reporters, and more from your home or office), plus expert digital assistance from our experienced team of librarians who never stopped fielding information requests (albeit remotely) as courts and legal professionals rushed to adapt to the pandemic reality of online-only work. An email query to librarian@courthouselibrary.ca may take you five minutes and save you five hours. But we won’t crow on about the digital information age at this late stage. We will acknowledge, rather, that some information is only available in print. Luckily, if you need that book, you can still get it without making a physical appearance. CLBC’s “book in a box” service is free for borrowers. You place your request through our website (courthouselibrary.ca), and we mail you the book. All you need to do is setup your online account and have a library card. When due, simply return the book in the box it came in (postage is pre-paid). While this service has been a boon to rural lawyers for years, we saw a usage spike of 237% from 2019 to 2020 as city and country lawyers alike worked from home.

CLEBC Update Although the impact of COVID-19 has been a huge challenge for the entire BC legal community, it has given us the opportunity to use technology to innovate and transform how we operate.

our publications and courses more easily accessible online. A new publications model was developed that catered to customer online needs. When all in-person events were cancelled, new short COVID-related online courses were created with the invaluable support of our contributors as well as free online Zoom training for our speakers. The new short online courses were available within just a few weeks of moving the entire CLEBC operation offsite.

Over the past year, CLEBC has quickly adapted to the increasing needs of BC legal professionals for online content by making

As a result of COVID-19, CLEBC has re-examined how we produce and deliver our courses and publications, as well as how we operate

DIGITAL TRANSFORMATION AT CLEBC

2020 RECIPIENT OF THE GEORGES A. GOYER, QC MEMORIAL AWARD FOR DISTINGUISHED SERVICE A trailblazing career promoting social change: barbara findlay, QC honoured for exceptional contributions to BC’s legal profession. Read more: bit.ly/bt0221p25-1

on a day-to-day basis. We have increased our knowledge and expertise in the online world, developed new products, and learned that with the help of technology and an openness to new ways of working we can effectively manage everything from remote locations. Throughout the past 10 months, the CLEBC team, our contributors, and customers, have demonstrated resilience and innovation and we are proud to be part of the significant digital transformation that is occurring in our BC legal community.

FEBRUARY 2021 / BARTALK 23

nationalnews CBA NATIONAL MAGAZINE by Dale Smith

Overcoming the Diversity Deficit on Federal Courts THE JUSTICE MINISTER IS COMMITTED TO A MORE DIVERSE FEDERAL BENCH. THE CHALLENGE IS GETTING BIPOC LAWYERS TO APPLY.

CBA NATIONAL MAGAZINE by Dr. Kara Mitchelmore

We Must Remove Barriers for Foreign-Trained Lawyers DIVERSITY MEANS HAVING A LEGAL PROFESSION THAT REFLECTS OUR POPULATION. It was 11:30 on a February evening, and I had just arrived in snowy Winnipeg. As my cab driver drove me to my hotel, we started talking and an all too familiar refrain emerged. When he found out that I was the CEO of the Canadian Centre for Professional Legal Education, the conversation turned to his story. He had come from India, where he had studied law, hoping to start a better life in this cultural mosaic we call Canada, where we encourage skilled professionals to come and build both their career and the country. However, upon arriving he found little assistance for foreign-trained law students coming to Canada. The accreditation process for acknowledging his legal credentials was unnecessarily cumbersome. Like many new Canadians, his savings quickly dwindled, and he had to take a job that would help support his family. However, this job took time away from his ability to study, sit for examinations, and actively seek an articling position. Over time, his dreams of becoming a lawyer in Canada faded. Sadly, this was not my first time hearing this story. In a recent article, Onai Petra Paswani-Abote shares a similar one and dives into the challenges qualified new Canadians face finding meaningful employment in healthcare. It’s no different in the legal community. Foreign-trained law students, whether they are Canadians who study abroad or students who complete their law degree abroad before immigrating here, face daunting and unique challenges. To illustrate, let’s compare their journeys to those of Canadian students who graduate from a Canadian law school. Read the full article: bit.ly/bt0221p26-1

24 BARTALK / FEBRUARY 2021

Federal justice minister David Lametti knows that the federallyappointed bench isn’t diversifying quickly enough, and he’s vowing to do something about it. “It is going in the right direction, I’m pleased at the direction in which it’s going,” says Lametti. “Is there more work to do? Absolutely. We need to make more good appointments, but I think we’re doing a decent job, and we’re getting better at it, and hopefully it will continue to improve over time.” But merely calling on lawyers from under-represented groups — BIPOC (Black, Indigenous, People of Colour), women and the LGBT community — to put their names forward hasn’t been doing the trick. Members of legal organizations representing diversity on the Bar say that this approach may have run its course. “If you just keep doing things the same old way, they’re clearly not reaching people and then people aren’t applying,” says Brad Regehr, president of the Canadian Bar Association, and a member of the Peter Ballantyne Cree Nation in Saskatchewan, who is based in Winnipeg. “It’s going to take some innovation in terms of reaching people.”

Read the full article: bit.ly/bt0221p26-2

guest JO-ANNE STARK

Legal Coaching as an Alternative

rior to the pandemic, courtrooms were filling up with self-represented litigants trying to navigate the complexities of our legal system — and although many court operations have been suspended or delayed in 2020-21, this has not slowed requests I hear every week from middle-class people who are looking for support and assistance. They ask for legal services that are both affordable and convenient, and they express frustration in the fact that they can no longer afford fullservice representation from a traditional law firm. Consider Beth*, an education assistant served with an application to have her son begin Grade 1 at a French immersion school — one she knew would not be a good fit for him; she had hired a lawyer for her earlier custody application, and had lost. She had no means to pay thousands to retain a lawyer to represent her again. Or Susan*, a woman who recently lost her mother, and was struggling to decipher all the steps required of an Executor as she attempted to carry out the estate administration. She felt overwhelmed by grief, the complexities of probate applications and felt undue pressure from her siblings to stray from terms of the will. These people are not alone: every year, tens of thousands of litigants attempt to represent themselves in court all across Canada; many more will write their own contracts and

do other legal work as they are not financially able to hire full-service lawyers. People like this all have one thing in common — they are seeking legal guidance and support from qualified legal professionals. Enter the Legal Coach. Legal coaching is a type of limited scope legal service where the coach supports the client in dealing with their own legal matter. It is an ongoing relationship where the coach and client work together as a team, setting out realistic goals to which the client is held accountable. It can be completed in regular weekly sessions for a fixed monthly rate, adding certainty for the client who is able to budget for these services. Legal coaching has been recommended in reports by various organizations researching the issue of access to justice,

Legal coaching is a type of limited scope legal service where the coach supports the client in dealing with their own legal matter.

argument in court, all for only $650 in coaching fees; she said she felt empowered by the process. Susan was able to complete and file the correct probate documents for her mother’s estate and obtained probate to distribute most of the estate within a few short months, while managing the expectations of the beneficiaries — all with the help of a legal coach. These services were provided virtually through the use of videoconferencing — all for a fraction of the cost of full-service representation. So many lawyers are looking for new and innovative ways to provide legal services, using technology to reduce overhead costs. They want to transition to a practice that is more sustainable, while juggling parenting responsibilities or easing into retirement. Personal injury lawyers are exploring new ways to assist people when Enhanced Care legislation takes effect in British Columbia in 2021. Legal coaching is an alternative that provides these opportunities, and so much more. In 2020, the Benchers of the BC Law Society approved a plan in principle for alternative legal service providers — within the context of a regulatory sandbox that will open the door to innovative services such as legal coaching. This approach may finally make it possible to close the gap and make legal services more affordable.

creating an opportunity to support those legal professionals who want to do law differently.

• Names changed to protect client’s identity.

Through legal coaching, Beth had the help she needed to prepare her affidavit, serve it and present a strong

Jo-Anne Stark, B.Comm, JD, CLC, is the author of the book Mastering the Art of Legal Coaching and President of the Legal Coaches Association. FEBRUARY 2021 / BARTALK 25

nothingofficial TONY WILSON, QC

Why Realtors are Smarter than Lawyers I have seen the enemy and it is us

few months ago, I stumbled on an account by a lawyer who performed a standard no-nonsense real estate sale for a property that sold for $1 million. The listing and the selling agents charged and split commissions of 7% on the first $100,000 and 2.5% on the $900,000 balance that totalled $29,500. With GST the commission was $31,000. What did the lawyer charge for his contribution to this $1 million transaction? A whopping $1000; of which, $400 were disbursements and taxes, leaving $600 or so for the lawyer. And if this were a purchase with a mortgage, the “all-in price” with taxes and disbursements would be around $1400, leaving around $900 for the lawyer. Whether it’s a purchase or a sale, these amounts don’t include the cost of doing business such as conveyancing staff, rent, taxes, phones, Internet, and of course lawyers’ liability insurance in case a mistake is made, because if one is made, it’ll be the lawyer who takes the fall, not the realtor. Out of all this, I’d guess the lawyer would net $100 for the sale and mortgage discharge, and $300 for a purchase and mortgage. What did the lawyer do for this princely sum? Well, you could look at the Practice Checklist published by the Law Society. The one for residential conveyances is 28 pages long. If it’s a simple sale with a discharge of a mortgage, the lawyer would have searched the property to ascertain 26 BARTALK / FEBRUARY 2021

who owned it; assessed what charges on title would have to be discharged. There could be a judgment, a Certificate of Pending Litigation or a builders’ lien to deal with. If it’s a purchase and a mortgage, there’s way more work (and more potential liability) dealing with adjustments like taxes, insurance binders, PTT, utilities, and other minefields. And if that weren’t enough, the lawyer now needs to deal with the source of funds verification, and the landowner transparency declaration or (God forbid) report. If the client is a nonCanadian, or the premises won’t be occupied full-time, the lawyer will have to consider the foreign buyer’s tax, the empty homes tax and the speculation tax. If there is a mortgage, the lawyer must advise on it and the consequences of default. There will be dealings with the other lawyer or notary. There may be GST and PTT to be paid by the purchaser; PST and GST on legal fees to be remitted by the lawyer, as well as the TAF charged by the Law Society. There will be payouts. There will be undertakings. There will be risk. And again, if something goes wrong, it’s the lawyer who takes the fall. More and more administrative burdens are placed on residential real estate lawyers, yet they aren’t reflected in legal fees. Real estate lawyers are under the regulatory microscope because the money that flows through their trust accounts

is enormous, and this puts enormous burdens on the lawyer. When I did my first and only residential conveyance as an articled student in 1985, there was no GST, PST, PTT, foreign buyers’ tax, speculation tax, empty homes tax, landowner transparency declaration, or client identity rules. And I daresay, lawyers could make a reasonably comfortable living based on the fee tariff that existed at the time, because the fee reflected the work done, and the risk assumed. But now, there’s this collective race to the bottom. When I look at the piddly legal fees charged by residential real estate lawyers for what they do, and the enormous risk that they take to “make dreams come true,” I can only marvel at how much smarter the realtors must be to be able to charge what they charge for what they do. So my message to the residential real estate conveyancing Bar is simple. Either triple your fees or go back to a fee tariff based on a percentage of the sale price. Or maybe quit law altogether and become realtors, because realtors are obviously smarter. Tony Wilson, QC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, humourist, self-professed thought leader and all-around raconteur. Consequently, the views expressed herein are his alone and do not reflect the opinions of the Law Society, the CBABC, or their respective members.

grantsapproved LAW LAWFOUNDATION FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA

$95,000 Powell River Community Services Association Poverty Law Advocacy Program $95,000 Society for Equity, Inclusion, and Advocacy: Central Vancouver Island Legal Advocacy Program

Outlined below is a list of grants adjudicated at the November 28, 2020 Board of Governors meeting. Funding totalling $7,680,000 was approved for the following 35 Continuing and OnTrack programs: $3,250,000 Legal Aid BC Legal Information and Legal Assistance Programs $700,000 Society for Children and Youth of BC Child and Youth Legal Centre $435,000 University of Victoria UVic Law — Law Centre Clinical Program $380,000 BC Civil Liberties Association Major Programs $270,000 University of British Columbia Indigenous Community Legal Clinic $250,000 BC Freedom of Information and Privacy Association Law Reform and Public Legal Education Program $250,000 Thompson Rivers University TRU Legal Clinic and TRU Legal Clinic Society $240,000 Law Society of BC The Professional Legal Training Course (PLTC) $225,000 First United Church Community Ministry Society Poverty Law Advocacy Program $160,000 Rise Women’s Legal Centre Family Advocate Support Line

Public Interest Work Placements $90,000 University of British Columbia $90,000 University of Victoria $50,000 Thompson Rivers University $80,000 Law Society of BC CanLII Virtual Law Library $70,000 Multiple Sclerosis Society, BC & Yukon Division Volunteer Legal Advocacy Program (VLAP) $65,000 Prince Rupert Unemployed Centre Society Advocacy Program Public Interest Awards $65,000 University of British Columbia $45,000 University of Victoria $40,000 Thompson Rivers University $55,000 University of British Columbia UBC Innocence Project at the Allard School of Law Pro Bono Students Canada (PBSC) $40,000 Pro Bono Students Canada — UBC $35,000 Pro Bono Students Canada — TRU $35,000 Pro Bono Students Canada — UVIC $25,000 Debate and Speech Association of BC Law Foundation Cup $25,000 Prince George Urban Aboriginal Justice Society Indigenous Court Coordinator Project — Prince George

$150,000 Access to Justice BC Access to Justice

$25,000 T’kemlups te Secwepemc Aboriginal Justice Worker in Support of the Cknúcwentn Elders (First Nations) Court

$100,000 Haida Gwaii Legal Project Society Legal Education/Advocacy Program

$25,000 Yeqox Nilin Justice Society Indigenous Court Coordinator Project

$95,000 Chimo Community Services Society Family Law Advocacy Services

$20,000 Canadian Foundation for Legal Research Grants for Legal Research and Writing

$95,000 Fort St. John Women’s Resource Society Family Law Advocacy Program

$10,000 Vancouver Summer Mentorship Society Summer Mentorship Program

Funding totalling $1,000,000 for the second year of operation for four Legal Clinic Programs. Support for these programs provided by the Government of British Columbia: $250,000 Kamloops and District Elizabeth Fry Society Elizabeth Fry Legal Clinic (ELC) $250,000 Tenant Resource and Advisory Centre Housing Law Clinic $250,000 Disability Alliance BC Society Disability Law Clinic $250,000 Sources Community Resources Society Poverty Law Clinic Funding totalling $1,565,000 was approved for the following three Major Projects Initiative: $750,000 WISH Drop-In Centre Society A Safer Province for All: Provincial Bad Date Reporting System for Sex Workers in BC Project $465,000 Together Against Poverty Society Vacancy Control Project $350,000 Justice for Girls Outreach Society Enhancing ‘Access to Justice’ for Teenage Girls in Poverty Project Funding totalling $500,000 was approved for the following eight projects: $75,000 Ecotrust Canada Innovations in Indigenous Land Tenure Project $75,000 Justice Education Society of BC Advancing BC Court Forms Project $75,000 Social Health & Economic Development Society of Bella Coola BCLAP’s Making Waves Project: Marine Delivery of Legal Services Project $75,000 Union of BC Indian Chiefs Making Our Voices Heard: Indigenous Human Rights Public Legal Education Project $75,000 West Coast Prison Justice Society Indigenous Prisoners’ Voices Project $59,000 PovNet Society Community of Practice Platform Enhancement & Evaluation Project $42,000 St Paul’s Anglican Church (Advocacy Office) One-year project to strengthen volunteer St Paul’s Advocacy Office program $24,000 The Federation of Asian Canadian Lawyers (British Columbia) Society FACL BC Documentary Project

FEBRUARY 2021 / BARTALK 27

barmoves Who’s Moving Where and When Jessica Forman

Jocelyn Lau

joined Forte Law’s Surrey office, where she will continue her employment law practice and conduct workplace investigations.

joined Icon Law Group as an associate counsel in December 2020. She will continue to develop her practice in civil litigation, insurance law, and family law.

Karen L. Weslowski

Barbara E. Janzen

a partner at Miller Thomson in Vancouver, British Columbia, has accepted an invitation to join the International Association of Defense Counsel.

joined Lindsay Kenney LLP as associate counsel in their Estate Planning and Litigation group.

Deirdre Huestis

Eric Kroshus

a corporate/commercial lawyer, joined MLT Aikins’ Vancouver office. Deirdre maintains a broad corporate and commercial law practice with a focus on real estate and mergers and acquisitions.

joined Mathews Dinsdale as an associate in Vancouver. Eric provides advice to employers on a range of labour, employment and human rights issues.

Dalene Visser

Brent Ellwyn

has moved her real estate and corporate commercial practice to Synergy Business Lawyers LLP.

joined BKS Law as partner. He has merged his firm, Strive Law, with BKS effective January 1, 2021.

Sebastian Chern

Desmond Wang

joined Geoffrey Howard’s new employment law firm, Howard Employment Law, as an associate.

joined Lawson Lundell as an a ssociate in their Business Law group. Desmond was called to the British Columbia Bar in 2020.

28 BARTALK / FEBRUARY 2021

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/BARMOVES.

Asha Young

Rory Morgan

joined Lawson Lundell as an associate in their Business Law group. Asha was called to the British Columbia Bar in 2020.

joined the Kane Shannon Weiler LLPâ&#x20AC;&#x2122;s Personal Injury and Litigation groups as a senior associate counsel. Rory has been practising law for over 20 years as a trial lawyer with a focus on personal injury, slip and falls, and insurance law.

Sebastian Crema

Joyce Pong

joined Lawson Lundell as an associate in their Real Estate group. Sebastian was called to the British Columbia Bar in 2020.

joined Edwards, Kenny & Bray LLP as an associate. Joyce practises corporate commercial law with a focus on corporate finance, mergers and acquisitions, and commercial real estate.

Garrett Lee

Gavin Mah

was appointed partner at DuMoulin Black. Garrett practises primarily in the areas of mergers and acquisitions, business and commercial law, and corporate finance and securities.

was appointed partner at DuMoulin Black. Gavin practises in the areas of corporate and securities law and advises clients on a broad range of business law matters.

FEBRUARY 2021 / BARTALK 29

INVESTMENT & INSURANCE SOLUTIONS

Exclusively for the Legal Community INVESTMENT &&INSURANCE SOLUTIONS INVESTMENT INSURANCE SOLUTIONS INVESTMENT INSURANCE SOLUTIONS Exclusively for Legal Exclusively for&the the Legal Community Community Exclusively for the Legal Community

High-value, low-cost financial products designed specifically for lawyers and their families, law firms, their employees and families.

High-value, low-cost financial products designed specifically for lawyers High-value, low-cost financial products designed specifically for lawyers and their families, law firms, their employees and families. Insurance Investments and their families, law firms, their employees and families. • Life •Investments Investment Funds Insurance Insurance Investments Investments Insurance InvestmentInterest Funds Products •• Life Critical Illness • •Guaranteed Life Investment Funds Funds •• Investment •• Life • Guaranteed Interest Products • Critical Illness ••• Disability/Business Expense • Individual & Firm PlansProducts Critical Illness Illness Guaranteed Interest Products •• Guaranteed Interest Critical • Individual & Firm Plans • Disability/Business Expense ••• Health & Dental Expense Disability/Business • ••RRSPs Individual& &Firm Firm Plans Plans Individual Disability/Business • RRSPs • Health & Dental Health & & Dental Dental RRSPs •• RRSPs Health ••• Employee Benefits • •TFSAs TFSAs • Employee Benefits • Employee Benefits • TFSAs • TFSAs • Commercial Employee Benefits Office • •RRIFs RRIFs •• Commercial Office • Commercial Commercial Office Office • RRIFs RRIFs • • Home&&Auto Auto • •Non-Registered Non-Registered Accounts Accounts •• Home Home & & Auto Auto Non-RegisteredAccounts Accounts •• Non-Registered •• Home Pensions •• Travel Travel • •Pensions Travel Pensions •• Pensions •• Travel

Connect with your local Lawyers Financial Advisor today. Connect with your localLawyers Lawyers Financial Advisor today. Connect with your local Financial Advisor today. Connect with your local Lawyers Financial Advisor today. David Hodgson 604.247.8007 1.888.477.5630 lawyersfinancial.ca David Hodgson 604.247.8007Toll TollFree: Free: 1.800.267.2242 David Hodgson 604.247.8007 Toll Free: 1.800.267.2242lawyersfinancial.ca lawyersfinancial.ca David Hodgson 604.247.8007 Toll Free: 1.888.477.5630 lawyersfinancial.ca Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trade mark of CBIA.

Lawyers Financial products andplans plansare aresponsored sponsoredby byThe TheCanadian CanadianBar Bar Insurance Insurance Association Association (CBIA). Lawyers Financial products and (CBIA). Lawyers LawyersFinancial Financialisisaatrade trademark markofofCBIA. CBIA. Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trade mark of CBIA.

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

LF301_Q2_BC Bar Talk_All Prod_ENGCOVER.indd 1

2019-05-09 8:55 AM

FEBRUARY 2021 / BARTALK 30