BarTalk April 2022 | The Law of Ownership by The Canadian Bar Association, BC Branch

APRIL 2022 | bartalkonline.org

The Law of Ownership

FICTIONAL LANGUAGES | NON-FUNGIBLE TOKENS | BEYOND PROPERTY

APR 11 MAY 20 to

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The Law of Ownership Features 6

Columns

Are Fictional Languages Copyrightable?

Rowan Meredith 7

APRIL 2022 Volume 34 | Number 2

Patented Medicines and the Patent Bargain

From the President

Ben Pearson and Mat Brechtel 8 10

Executive Director

Non-Fungible Tokens (NFTs)

Emilie Feil-Fraser

Beyond Property — Access to Justice for Animals The “Bare” Minimum? Or Just Enough?

Kiran Dhesa 15 18

Indigenous Matters

Guest

Do You Own Your Name?

PracticeTalk

Tamara Huculak 21

But it’s My House!

Managing Your Time David J. Bilinsky

We’re All on the Truman Show Now

Joel V. Payne

I Do Not Need a “Shrink” to Hold My Hand Winston Sayson, QC

Joint Tenancy | Tenancy in Common

Brandon D. Hastings 20

Set Apart by Her Majesty Julie Daum and Robin Phillips

Stratas, Pets, and Human Rights

Rebeka Breder

Solicitors, Don’t Go Breaking My Heart Kerry L. Simmons, QC

V. Victoria Shroff 12

Defenders of the Rule of Law Clare Jennings

Nothing Official

“We Demand to Speak to the Manager of Canada!!!” Tony Wilson, QC

Ashley Syer 25

Ownership of IP Rights in AI Creations

Maya Medeiros

From the Branch 9

Advocacy in Action

CBABC News

Professional Development

SectionTalk

From the Community British Columbia Law Institute

30 30 31

BCLI to Release Guide on Gender Diversity in Legal Writing

Brandon D. Hastings, Committee Chair Editorial Committee Tonie Beharrell Eryn Jackson Baljinder Girn Isabel Jackson

Lisa Picotte-Li Sean Vanderfluit

Deborah Carfrae, BarTalk Editor

Courthouse Libraries BC

Staff Contributors Faith Brown Alyssa Brownsmith

CLEBC

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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.

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FROM THE PRESIDENT CLARE JENNINGS

Defenders of the Rule of Law

s I write this column, the news is full of chaos. Recent events have led many to say that the rule of law is under attack around the world, and to feel helpless to do anything about it. Disorder is erupting in Canada on a scale unfamiliar to us in modern times, and the Russian invasion of Ukraine is a violation of international law of the type Europe hasn’t seen since World War II. While we have seen similar types of wars, violence, and violation of international law — often proxy wars being fought by other powers — for many, this clearly feels like a different level of risk. The self-titled Freedom Convoy that occupied downtown Ottawa and border crossings for most of February led many Canadians to suggest that the rule of law had broken down. Complaints were made that police weren’t enforcing the law because some sided with the convoy participants, and that nothing was being done to protect the rights of those people who lived, worked, and tried to run businesses in the occupied areas. Significant amounts of money were raised, largely from American funders, to support the occupation and its goals, which reportedly included overthrowing the Canadian government. The invocation of the Emergencies Act by the federal government has been argued to be an illegal overreach, a draconian overreaction that sets a dangerous precedent. Faced with this kind of chaos, it’s important to remember that we have a role to play in protecting and promoting the rule of law. Many opponents to government policies have challenged them in court, and lawyers helped them do that. When a resident wanted to challenge the occupation in Ottawa, 4 BARTALK / APRIL 2022

it was a lawyer who brought a lawsuit and obtained an injunction against the honking and other noisemaking, and a judge who made that ruling. This same court made an order freezing donations to the convoy, to ensure money would be available for damages if the lawsuit succeeds. When the Emergencies Act was invoked, the response from multiple groups across our country was, with the help of lawyers, to file court challenges to the federal government’s actions. The rule of law remains alive and vital in Canada when people can turn to it for remedies. One fundamental aspect of the rule of law is the independence of our profession; in Canada, this includes self-regulation. The Law Society of British Columbia commissioned a report last year on its performance as a regulator, known colloquially as the Cayton Report. While self-governance is not currently under attack in BC, preserving it means we must be self-reflective, analytical, and responsive to the concerns raised in the Cayton Report. CBABC is holding roundtables across the province this spring to solicit feedback from all lawyers. If you haven’t registered for a session, I encourage you to join us. As lawyers, we play a crucial role in upholding the rule of law and must ensure our independence to do so. Opportunities to protect the rule of law in Ukraine are not as obvious. The CBA Immigration Law Section is spearheading an initiative to provide pro bono services to individuals affected by the crisis in Ukraine and bring eligible Ukrainian nationals to Canada. Ukraine has brought a request for provisional measures to the International Court of Justice, although Russia chose

not to participate. The International Criminal Court Prosecutor, Karim A.A. Khan, QC, has opened an investigation into the situation in Ukraine. And sanctions against Russia increase in severity every day. While seemingly insufficient, they show that members of the world community still turn with some hope to the rule of law for protection and enforcement of its rights. These are small pieces of an unquestionably complex situation, but they are signs that underscore the importance of our independence and our work as lawyers. And finally, I am reminded that the issues of equality and diversity permeate even these crises. The occupation of downtown Ottawa was difficult for all residents, but from the swastikas and leaders who profess white supremacy views to news stories about IBPOC people being attacked, the increased impact on members of those communities is clear. Coverage of the Ukraine crisis has told us that people of colour face increased barriers when they try to leave the country, but also reflected back to us racist attitudes about who is deserving of sympathy and who we simply expect to be involved in violence. High-profile crises capture our attention and often our time and energy, but we must always keep in mind the core work we need to do every day — to challenge our own beliefs and reactions, to have difficult conversations, to do the hard work. It’s essential to our work as lawyers, and our role as defenders of the rule of law.

Clare Jennings

president@cbabc.org

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Solicitors, Don’t Go Breaking My Heart

hear it all the time: “CBABC is more geared toward litigators.”

Nothing could be further from the truth. As Elton and Kiki put it, “Nobody told us. ‘Cause nobody showed us,” so here we go. Solicitors are integral within CBABC. No less than 22 of our Sections provide opportunities for solicitors to build referral sources and keep current with law and practice. Plus, their leaders have emerged to guide CBABC policy and practice reform and build two key conferences. Last summer, CBABC formed the Residential Conveyance Working Group on the recommendation of past National Real Property Section Chair, and current Real Property– Vancouver Section Co-Chair, Brett Horton. Chaired by Brett, the Working Group includes Edward Wilson, Inder Biring, Vyvyan Tsui, Tony Spagnoulo, Ron Usher, Stewart Carstairs, Marty Wales, Erin Crocker, and Peter DeMeo. The diversity of business models, experiences, and geography among that group have made them extremely effective. Since September, the Working Group successfully advocated for the deadline extension to file transparency reports under the Land Owner Transparency Act, and consulted with the BC Financial Services Authority about the government’s proposed “cooling off period” policy. In particular, they called into question the necessity and efficacy of such a policy, since the government has yet to articulate the actual problem it is trying to solve or the magnitude of it. But they haven’t stopped there. The Working Group’s current projects include reviewing the Standard Form

Contracts of Purchase and Sale, particularly the applicability of GST on purchase prices and inclusion of The Land Owner Transparency Registry advisories, and revisions to the Standard Form Undertakings with respect to transactions involving Indigenous lands. Some of you may not know that Edward Wilson of Lawson Lundell was instrumental in drafting and developing those documents for over 25 years. He continues to serve as CBABC’s representative on the BC Real Estate Standard Forms Committee and the Land Title Survey Authority’s Business Transformation Advisory Committee. CBABC members owe him a huge debt of gratitude for his extensive contributions. The annual Solicitors’ Central Vancouver Island Conference returns on April 22 in Parksville after a COVID hiatus. For years, Chuck Blanaru of Heath Law in Nanaimo has been the anchoring organizer of the event. Generously sponsored by Stewart Title, all solicitors and general practitioners from Duncan to Port Hardy to Uclulet will want to reconnect with colleagues and hear from keynote speaker, Master Sandra Dick. From June 10-12, CBABC hosts the Wills & Estates Conference in Kelowna with keynote David Freedman of Queen’s Law. With thanks to Wills & Trusts Section executives Amy Mortimore, Tara Britnell, Jaimie Kidston, and Jacy Wingson, QC, this three-day program is focussed on advanced-level estate law. You won’t want to miss it. Returning to policy and advocacy, the Cullen Commission reports in May.

Recommendations may impact all areas of the lawyer-client relationship. Our Professional Issues Committee, together with the Real Estate and Criminal Justice Sections, will consider CBABC’s next steps in education and advocacy for our members. With so much happening at CBABC for and by solicitors, I hope you’ll consider getting more involved. CBABC’s Provincial Council will meet for their last meeting in June, and following that, we’ll welcome new Council members for the 2022-23 membership year. April 12 is the deadline for County Representative and Section Representative nominations, with elections following shortly after. If governance isn’t your thing, there are many opportunities for solicitors to volunteer and shape the positions of CBABC on law and policy issues through our Committees. Or, make sure next year’s Section meetings are timely, relevant and fun to attend by joining a Section Executive. Recruitment begins in May, so watch your Section notices for those opportunities. The influence of solicitors is vibrant at CBABC, and your engagement completes CBABC’s voice of the legal profession in BC.

Kerry L. Simmons, QC

ksimmons@cbabc.org APRIL 2022 / BARTALK 5

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ROWAN MEREDITH

Are Fictional Languages Copyrightable?

“

Ñuhor līr gūrēnna.” In High Valyrian, the phrase means “I will take what is mine.” In Game of Thrones it is used by an exiled princess reclaiming her throne. Fortunately, the statement hasn’t been adopted by David J. Peterson — the linguist who created the fictional language — to reclaim the words themselves. But could it be? Fictional languages are developed for use in a fictional world — rather than evolving naturally, they are constructed by a person or group of people. In recent years, fictional languages have seen increased use both inside and outside of the worlds for which they are created. For example, popular language-learning app Duolingo currently teaches courses in both High Valyrian and Klingon. Other fictional languages that people learn in real life include Dothraki from Game of Thrones, Sindarin and Quenya from The Lord of the Rings, Newspeak from 1984, and even Simlish from the Sims computer games. But what are the copyright ramifications of using fictional languages without the permission of their creators? Do the inventors of languages own a copyright in their work? Fictional languages are certainly not only used in their imaginary worlds of origin — many are fully-fledged languages in use today by speakers around the world. For example, Klingon, a language first created 6 BARTALK / APRIL 2022

for the Star Trek movie franchise, is used by members of the Klingon Language Institute, among others, as an actual means of communication. According to the Language Creation Society, at least one child has been raised as a native speaker of Klingon. If copyright protection extends to fictional languages, then, it could have extensive ramifications, not only for those who may want to use the languages in fanfiction or art, but for everyday speakers. PARAMOUNT V. AXANAR As of this writing, the Canadian courts have not addressed whether a fictional language is protectable by copyright, but the question is an important one among conlangers (creators of constructed languages). One California trial court drew media attention to this question in 2017 (Paramount Pictures v. Axanar Productions, 121 U.S.P.Q.2d 1699 (C.D. Cal. 2017)). Paramount had filed a lawsuit over the alleged infringement of the Star Trek franchise in a fan-made film and argued that one of the elements through which the film infringed their copyright was the use of the Klingon language. The Language Creation Society, a group dedicated to the creation of constructed languages, filed an impassioned amicus brief arguing that “even the Pakleds [a group of unintelligent humanoids from the

Star Trek franchise] would know that nobody can ‘own’ a language.” Unfortunately, the court held that it did not need to decide whether a fictional language could be subject to copyright protection, as its use was only one way out of many in which the film was like the Star Trek source material. FICTIONAL LANGUAGES AS SYSTEMS What can we make of this question, then? A fundamental principle in Canadian and US copyright law is that only a person’s specific expression is copyrightable. By contrast, there is no copyright protection for a person’s ideas, nor for the systems or methods of operation which a person creates. (Moreau v. St. Vincent, 1950 CanLII 248 (FC); Bikram’s Yoga College v. Evolation Yoga, 803 F.3d 1032 (9th Circ. 2015)). Because languages are intricate frameworks of vocabulary, syntax, grammar, and phonetics, which by themselves do not convey meaning, I would argue that a language — even a fictional one — is a system and therefore not subject to copyright protection. It is only through the creative efforts of individual speakers of Klingon, High Valyrian, Simlish, and other fictional languages that we bring these components together and create linguistic expression. Or, as an everyday Dothraki speaker might say, “Me achrae athnajaharoon” (“Smells like victory”). Rowan Meredith is Legal Counsel at BroadbandTV. She is called in BC and California. All views are her own.

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BEN PEARSON AND MAT BRECHTEL

Patented Medicines and the Patent Bargain

hile all Canadians understand that certain ideas can be owned, the complex statutory regimes that govern such ownership aren’t widely understood. Whether patent, copyright, or trademark, there is always a balancing of benefits to creators and society more broadly. Some of the most important — and frequently litigated — balancing is done through the Patented Medicines (Notice of Compliance) Regulations (“PM(NOC)”). This regime governs the entry of generic drugs into the market — the end of the innovator’s ownership, and the balance between the temporary monopoly granted to an inventor and the benefit of more widespread access to medicines. The PM(NOC) process requires that prior to selling a generic drug a manufacturer must address patents listed on Health Canada’s Patent Register. Only having done so will it receive a Notice of Compliance, allowing it to market and sell that drug. Two courses exist for any generic manufacturer: simply await expiry of any patents, or attack the patents by alleging invalidity or alleging that a new product would not infringe. If the generic manufacturer succeeds in either attack, the benefit can be significant: earlier market access and the profits from that access. The generic drug company will first serve a Notice of Allegation on the patent owner. The patent owner can either consent, or more likely commence an action in the Federal Court to prohibit generic market entry.

By statute, commencing a PM(NOC) action stays the regulatory approval process while the litigation proceeds, up to a maximum of 24 months. If the generic drug company succeeds fully invalidating the listed patents after a PM(NOC) trial, those patents are invalidated in rem, allowing any generic drug company to obtain a Notice of Compliance. However, given that PM(NOC) litigation is expensive, there is a further balancing: a successful challenger is given a “first mover advantage,” allowing it to begin marketing prior to other generic manufacturer. This can result in substantial growth, given that many provincial formularies will push consumers toward available generic manufacturers by only reimbursing the lower cost of a generic drug. While complex, the PM(NOC) regime reflects the fundamental “patent bargain” in the context of medicines. The Government of Canada’s Regulatory Impact Analysis Statement confirms Canada’s policy objective to “balance the effective patent enforcement over new and innovative drugs with the timely entry of their lower priced generic competitors”; in other words, balancing the benefit to creators with the benefit of widely available drugs for the public. That bargain arises from the intersection of the PM(NOC) and the

Patent Act. For an innovator, s. 42 of the Patent Act provides a 20-year monopoly over the invention. In exchange, the inventor must fully disclose the invention for the benefit of society. The balance depends on sufficient disclosure, which lies at the very heart of the patent system. In the event a patent’s disclosure is insufficient, it may be invalidated pursuant to section 27(3) of the Patent Act. The monopoly also isn’t absolute. Another facet of the balance is reflected in s. 55.2(1), which provides the “early working exception,”

allowing a generic manufacturer to use a patented invention so long as the use is solely for the purpose of seeking regulatory approval. Without this exception the PM(NOC) process could be stymied, as those seeking approval would have difficulty undertaking appropriate preparation. As with each of Canada’s IP regimes, the balancing necessary to grant ownership of an idea is challenging. Ultimately, however, the benefit to Canadians is immense: access to lifesaving medicines and the knowledge necessary for those medicines to be made widely available. Ben is an IP litigator who has assisted corporate and government clients with protecting and enforcing their intellectual property rights. Mat is an experienced intellectual property litigator and trademark agent. APRIL 2022 / BARTALK 7

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EMILIE FEIL-FRASER

Non-Fungible Tokens (NFTs) Personal property or right of access?

WHAT IS AN NFT?

n NFT, or non-fungible token, is a unique set of data tracked on the blockchain that can be thought of as certificate of ownership for a digital or physical asset, but which can also be bought and sold itself. The blockchain stores an immutable record each time a transaction of the NFT takes place, allowing the asset with which the NFT is affiliated to be tracked and authenticated. Presently, most NFTs are minted on the Ethereum blockchain, a type of cryptocurrency, and are stored in NFT-compatible digital wallets.

CURRENT APPLICATIONS NFTs are commonly linked with “one-of-a-kind” digital assets. In an age where online copyright infringement is rampant, being able to verify the “original” of a piece of digital artwork, limited edition comic, autographed video clip, or digital trading card reestablishes the scarcity these types of assets traditionally derive their value from. There are similar applications for realworld assets too, such as Nike’s “CryptoKicks” to verify the authenticity of Nike sneakers. It’s inaccurate to think NFTs are only for art collectors and niche gaming markets. There is now buy-in from large commercial organizations, like the NBA TopShot platform created by Dapper Labs of Vancouver (where users can buy NFTs linked to unique video “Moments” of 8 BARTALK / APRIL 2022

their favourite basketball players in action). Similar platforms are in the works for the UFC and NFL.

IP OWNERSHIP AND PITFALLS NFTs have no real intrinsic value. Their price is dictated by subjective valuations of the scarcity of the particular asset. This makes the NFT market volatility high and necessarily risky. There are also climate impacts of NFTs still to be solved given the energy consumption challenges across cryptocurrencies. Another pitfall is analogizing an NFT too closely to tangible personal property. NFTs are like tangible collectibles in that buyers can resell the work but rarely own the underlying intellectual property rights in it, which remain with the author unless a contract provides otherwise. However, while tangible collectibles can be bought and sold freely, NFTs are often subject to restrictions constraining the marketplace in which they may be resold. Currently, NFTs can only be bought and sold in online marketplaces adapted for such transactions, like OpenSea and Rarible. Not only does this raise questions as to what might happen in the event of infrastructural failure (à la Quadriga), these marketplaces have their own sets of terms and conditions users must abide by. For example, the

NBA TopShot terms and conditions provide that purchased Moments can’t be altered, used with hate speech, or used for commercial benefit. The global nature of these marketplaces also raises questions about dispute resolution, enforcement, and jurisdictional issues. Thus, it is important to check the terms and conditions of the platforms facilitating the sale and storage of the NFT. It is also important to verify that the minter of the NFT has obtained the requisite authorizations from the copyright owner and third-party rights holders. Has consent of the artist been obtained to mint an NFT of their digital artwork? What about the facial likenesses of people appearing in video content linked to an NFT (as required by s. 3 of the BC Privacy Act)? FUTURE OF NFTS While we currently conceptualize NFTs as intangible personal property, they are quickly becoming something more — a right of access. Imagine owning an NFT corresponding to a seat in a virtual stadium that provides access to exclusive concerts and events, or that gives you free contest entries and sports bets. Many NFTs have been adapted for these kinds of special privileges already. NFTs can even be used to store identity information, which has implications for global travel, credit scores, and real estate. As the digital and physical worlds merge in the metaverse, it is likely we will see NFTs play a more significant role. Emilie Feil-Fraser is a lawyer at Seastone IP LLP, a boutique firm specializing in intellectual property.

advocacy in action

EMAIL: ADVOCACY@CBABC.ORG

BUDGET 2022

What is the appropriate role of LSBC?

In November, CBABC reported that the Select Standing Committee on Finance and Government Services had accepted recommendations made by CBABC to expand the scope of legal aid family law services, additional funding to implement DRIPA and restorative justice programs, and funding to advance the digital transformation of the legal and justice system.

What expectations do you have for LSBC to engage with lawyers?

What support/assistance do lawyers need regarding LSBC regulatory requirements?

However, that was before a catastrophic atmospheric river wiped out major highways and cut off BC communities and COVID-19 made a dramatic return in the form of a fourth Omicron wave. In a matter of weeks, healthcare emergencies and climate change events took precedence over other government priorities. When the provincial budget was announced in February, CBABC responded by recognizing the commitments made by the BC government to advance Indigenous reconciliation. However, we also urged the government to go further by ensuring adequate funding is in place to produce tangible results as the implementation of DRIPA moves forward. THE FUTURE OF LEGAL PROFESSION GOVERNANCE

Consider participating in this important process that will shape the way the regulator governs the profession in years to come! These events are free to members and non-members. If the date for your region has passed, simply select an alternate date that fits your schedule. Register today. E-CYLING TO CONNECT BC CBABC is partnering with Electronic Recycling Association to collect previously used laptops, computers, and smartphones to be refurbished and provided to remote and Indigenous communities. This initiative will help ensure no one is left behind in communities where there is limited access to the technology needed to participate in virtual hearings or other online legal services. This exciting project runs from Apr 11 – May 20 at drop-off locations across BC. Visit cbabc.org/ ElectronicRecycling to arrange your donation. RECENT CALLS FOR CONSULTATION

The Law Society of BC’s Report of a Governance Review recommends significant changes to the regulation of the legal profession. CBABC had an opportunity to provide input into this report, making a submission to governance expert Harry Cayton back in October.

The BC Supreme Court Civil and Family Rules Committee is leading a consultation to modify the Rules of Contempt. CBABC volunteers stepped up in March to make a written submission containing recommendations for change.

Now CBABC is hosting a series of important roundtable events throughout the province to ask questions about how lawyers view the governance of the profession and our relationship with the regulator:

An Inquiry into Hate During the COVID-19 Pandemic was launched by the BC Human Rights Commissioner and CBABC was invited to make submissions, which will be released later this month.

APRIL 2022 / BARTALK 9

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V. VICTORIA SHROFF

Beyond Property — Access to Justice for Animals

Recognizing animals as someone rather than something

nimals are slowly being recognized as more than mere property under the law.

This BarTalk issue, focusing on the Law of Ownership, fits seamlessly with the topic of animals, the law, and access to justice. Why? Because under Canadian law, animals are property, they are owned, not unlike furniture. Deeming animals property creates access to justice barriers, leaving animals vulnerable to abuse. Fortunately, societal and scientific views have progressed over the decades recognizing the importance of animals, seeing them as sentient, often as family members. We are starting to see shifts in the law where animals are in some instances, being understood by the law as more than inanimate property, as the sentient beings they are, granting greater access to justice, and obtaining stronger legal protections. Animal sentience laws embrace the notion that animals are individuals worthy of access to justice, to legal protections, and are on the rise globally. (For more information on animal sentience laws and property, see Recognizing animals in Canada as sentient in the CBA National). When we talk about justice initiatives, both humans and animals need to be included. A recent example of access to justice for animals and their humans is Canada’s first Animal Law Pro Bono Clinic (“ALPC”) that we established in Vancouver in 2020 10 BARTALK / APRIL 2022

with the help of the Law Students Legal Advice Program, our Allard animal law students, and Professor Harris. The ALPC is an access to justice triumph for animals. Another example of the law recognizing animals as more than inanimate property can be found in a unanimous 2021 Alberta Court of Appeal judgement. Animals were referred to as sentient beings who themselves can be victims of violence with the court stating: “...I agree that animals, sentient beings that experience pain and suffering, must be treated as living victims and not chattels....” (R v. Chen 2021 ABCA 382 para. 27). Much of the groundwork for cases like this stem from Canada’s watershed animal law dissent concerning Lucy the elephant, in Reece v. Edmonton (City), 2011 ABCA 238. We are working toward and sometimes succeeding in having animals’ status recognized as more than objects, to acknowledge their interests. In other words, recognizing an animal as someone rather than something, but to be clear, animal law cases dealing with cruelty, pet custody, animals in condos, dogs on death row, intensive farming, and more, are all still subject to laws rooted in ownership principles rather than framing animals as sentient beings, as individuals in their own right.

Currently, animals do not have legal standing, but game-changing federal legislation that was recently re-introduced, could alter that in a limited way. An Act known as the Jane Goodall Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants, and certain other animals) could be a landmark legislative access to justice win for hundreds of animals and it establishes limited legal standing in court for some animals. The Honourable Chief Justice of BC, Robert Bauman, provided a snapshot of his views on the rule of law, access to justice, and animals in a new animal law textbook: The rule of law requires that ordinary people can access the justice system to enforce their rights; …This is so in all areas of law, and the law relating to animals is no different. ... — whether we are talking about animals as pets, animals as part of our industrial food supply system, animals as sentient beings in need of protection from inhumane treatment or even animals involved in criminal offences. (Page 476 Canadian Animal Law [Lexis-Nexis 2021] V. Victoria Shroff). Access to justice for all sentient beings is both possible and necessary. We are inching slowly forward where animals are increasingly being recognized in law as more than something that is owned. Find out how animal law could intersect with your practice by attending CLEBC’s April 12th Animal Law 101 2022 Webinar. V. Victoria Shroff is an animal law lawyer, adjunct professor of animal law, author of Canadian Animal Law (Lexis-Nexis)| @shroffanimallaw.

Welcome

Amarit Bains ASSOCIATE

Amarit is a member of the Litigation/Arbitration/Dispute Resolution Practice Group. He maintains a general litigation practice with an emphasis on commercial and corporate law matters, including commercial contract disputes, foreclosures, construction disputes and builders’ liens, creditor remedies, commercial leases, shareholder disputes, and commercial and residential sale agreements. Amarit was called to the B.C. Bar in 2018.

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APRIL 2022 / BARTALK 11

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KIRAN DHESA

The “Bare” Minimum? Or Just Enough? Bare trusts and estate planning

common goal for individuals when creating their estate plan is to avoid having assets pass through their estate. This may be to reduce probate fees, or to reduce the number of assets that could become tied up in a wills variation claim. One solution to prevent assets from passing through an estate, which comes with pros and cons, is transferring property (real estate, bank accounts, etc.) into joint names with another person or other people, usually the intended recipient(s) of the asset. However, a transfer into joint tenancy alone may not achieve the goal of keeping assets from forming part of the estate. A transfer into joint tenancy may have tax consequences, reduce the transferor’s control over their asset, and open up the transferor to claims of creditors of the joint owners. A joint tenancy together with Bare Trust planning may help avoid some of these issues. Bare Trust planning allows the transferor to transfer the legal interest in their property to the Trustee of the Bare Trust, and retain the beneficial interest in the property for themselves. When the beneficial ownership in property is retained by the transferor, the transfer of the legal ownership is not considered a disposition for tax purposes. 12 BARTALK / APRIL 2022

To ensure the transfer is not considered a disposition by the Canada Revenue Agency, or any others who have an interest in the property, it is important to document the Bare Trust planning in a Bare Trust Declaration. It is also important to ensure the parties conduct themselves in a manner that aligns with the intention of the transferor of retaining the beneficial interest in the property. Further documentation, together with the Bare Trust Declaration, may be required to document the transferor’s intention for the asset after his or her passing. By retaining the beneficial interest in the property, the transferor maintains control over the property, keeps any benefits derived from the property, such as rental income or interest and is responsible for the expenses and taxes associated with the property. The Bare Trust is truly “bare” as the Trustee of a Bare Trust has very few active duties, and is acting as the “agent,” or “nominee” of the transferor (the settlor). Generally, the Trustee of the Bare Trust has no discretion but must take direction from the transferor, and is required to deal with the assets of the Bare Trust in accordance with the transferor’s specific stated intentions after passing. This allows the transferor to continue to use and enjoy

their property. Like other Trustees, the Trustee of the Bare Trust will still be expected to safeguard the assets of the Bare Trust. However, clearly documenting the transferor’s intentions, the Bare Trustee can still go rogue and act in a manner inconsistent with the Bare Trust planning. Most property ownership documents will not indicate whether there has been any Bare Trust planning, and third parties may not be aware of the arrangement between the transferor and Bare Trustee, when taking instructions. This may create some difficulties for the transferor to enforce the Bare Trust planning. With the introduction of the Land Owner Transparency Registry (the “Registry”), all land transfers with Bare Trust planning must be disclosed by filing a Transparency Declaration and a Transparency Report, that discloses all of the beneficial owners of the land. The requirement to file the Transparency Declaration and the Transparency Report adds a small additional cost to the transaction, but also makes the Bare Trust planning public information through the Registry. Information about beneficial owners will not appear on title to the property, and can only be obtained by searching the Registry. Although Bare Trust planning has many benefits, it still may not be suitable for all clients or situations. Kiran practises in the area of Estate Planning and Estate Administration with Richards Buell Sutton, in their Surrey office.

cbabcnews British Columbians Recognized at CBA Awards At its Annual General Meeting, the Canadian Bar Association honours members of the legal profession whose contributions to the Association, the legal profession, and the justice system mark them as deserving of special recognition. We were so pleased to see three people from BC honoured this year with National awards. From everyone at CBABC — congratulations!

Louis St. Laurent Award of Excellence The CBA’s highest award recognizes a lifetime of outstanding service and professional achievement to the benefit of the legal profession, the CBA, and society at large. This year’s honoree is barbara findlay, QC who has litigated many queer and trans rights cases in her 45-year career, including the right for co-mothers to be parents on a birth certificate. She was co-founder of SOGIC (the CBA’s national and regional sections focused on sexual orientation and gender identity) and the 2021 recipient of the Georges A Goyer, QC Memorial Award for Distinguished Service.

Touchstone Award Lee (Lisa) Nevens was presented the Touchstone Award, which celebrates the accomplishments of an individual or an organization who has excelled in promoting equality in the legal profession, the judiciary, or the legal community in Canada. Lee is a civil litigator for the Department of Justice Canada in Vancouver. They are an elected Director on the CBABC Board, have co-chaired SOGIC for many years, and are chair of BC’s Legal Equity and Diversity Roundtable. Lee has led, organized, and facilitated countless education and advocacy projects, with an emphasis on trans issues.

Jack Innes Award CBABC’s Knowledge & Information Systems Manager, Judy Yen, was presented the Jack Innes Award, which recognizes outstanding contributions to the CBA by a current staff member who exhibits creativity, innovation, leadership, and commitment. For more than a decade, Judy has applied her broad range of technical and analytical skills to uncover valuable insights into CBA members’ behaviour and needs, introduce streamlined processes, and improve the experience of members and staff alike. As CBA-Alberta’s Executive Director put it, “Whether they know it or not, all of CBA has benefited from Judy’s qualities and competencies.”

CBABC AWARDS 2022 CBABC proudly honours excellence in BC's legal profession. Community Support Harry Rankin, QC Pro Bono

Equality & Diversity Innovation

Submit your nominations by April 30 at cbabc.org/awards.

APRIL 2022 / BARTALK 13

Indigenousmatters JULIE DAUM AND ROBIN PHILLIPS

Set Apart by Her Majesty

A frank discussion of real property on reserve

nyone who practises in an area of law that may involve property on reserve has likely encountered the particular issues that arise on reserve lands. Here we discuss some common problems related to real property on reserve. We also discuss overarching problems that stem from imposing colonial legislation onto land governance models that have been in place for thousands of years. The Indian Act is the principal legislation that Canada uses to administer and control Indian Status, First Nations governments, and the management of reserve lands. It also sets out federal obligations to First Nations peoples. The Indian Act has been amended several times, however its principle objectives remain the same to this day. That is, to advance the crown’s political objectives of alienating Indigenous peoples of their inherent political structures. Under the Indian Act, many decisions about a Nation’s reserve lands require a final decision or approval from the federal government. Although more recent legislation like the First Nations Land Management Act significantly improves a Nation’s power to manage its reserve lands under a land code, it remains federal legislation that purports to delegate land management authority from Canada to the Nation. In addition, even where a Nation adopts a land code under the First Nations Land Management Act, often problems 14 BARTALK / APRIL 2022

persist from the time when the Nations land was managed solely under the Indian Act. Records related to reserve lands may be scarce, incomplete, or missing altogether. Unlike the provincial land title system, the federal Indian Land Registry System is essentially a notice board that does not guarantee title or the accuracy of documentation. This means expired and out-of-date information may remain in the system, and interests may not be accurately registered. A lack of certainty can result in disagreements concerning the boundaries of an individual’s lands or create disputes regarding traditional land holdings. This may also pose challenges for Nations trying to address infrastructure needs, and for thirdparties working on reserve. As Nations work to move beyond the rigid constraints of the Indian Act through self-governing agreements, modern Treaties, and adopting land codes, problems arising from the imposition of the Indian Act continue. Often it is left to Indigenous communities to remedy these problems with inadequate support from those who imposed the Indian Act in the first place. As we move to dismantle colonial systems, it is important to avoid past mistakes. This means settlers must avoid trying to impose their assumptions about how lands should be governed. For example,

one of the key structures for some Indigenous peoples, like the Wet’suwet’en, are the matrilineal and matrilocal clan system. The Indian Act was based on patrilineal and patrilocal system that displaced Indigenous women and therefore stripped them of their traditional sources of power, relationships, and resources. Negative impacts to

traditional governance systems continue to this day and remain difficult to address. Much work remains to be done to unravel problems stemming from the impacts of colonial legislation. It will be important that this work be led by Indigenous communities, with proper resources and support. For reconciliation to have meaning, it is crucial to recognize the inherent jurisdiction and rights First Nations have to govern their lands, and to support Indigenous communities to bring about the vision they have for their lands, free from the constraints of ill-suited legislation. Julie Daum is a Wet’suwet’en mediator and Chair of Mediate BC. Robin Phillips is a lawyer and mediator at JFK Law Corporation.

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REBEKA BREDER

Stratas, Pets, and Human Rights

n British Columbia, the Strata Property Act, SBC 1998, c.43 (“SPA”) governs the relations between stratas, their owners or tenants and their companion animals. Pursuant to section 123 of the SPA, a person living with a companion animal at the time a pet prohibition or restriction bylaw was passed is “grandfathered.” Other than that, the SPA says very little about what a strata may or may not do in relation to pets. One issue that often arises is whether the strata demanding the removal of a pet from a condominium is a violation of one’s human right. This issue is particularly timely given the number of people living in condominiums who have acquired a dog or cat during the COVID-19 pandemic. Under section 121 of the SPA, a strata bylaw is unenforceable if it contravenes the Human Rights Code, RSBC 1996, c.210 (the “Code”). Section 8 of the Code prohibits stratas from enforcing or applying their bylaws in a way that discriminates against a person based on, among things, a physical or mental disability. It is common for people to feel that they are being discriminated against by their strata for demanding the removal of their pets. People often feel that their pet is family and an emotional support animal (“ESA”) who greatly helps their mental and physical health.

However, at what point does one’s condition become a “disability” that is recognized by the Code? The Code does not define “disability.” In determining whether a person suffers from a disability, the BC Human Rights Tribunal (“BCHRT”) has used terms such as “a chronic condition which requires active management and, if not managed properly, could result in very serious health conditions or death” (Parent v The Owners, A Strata, 2020 BCHRT 105). The BCHRT has also found that a person can suffer from a disability, such as depression or anxiety, even though they have not been “officially” diagnosed with the same, as long as they are experiencing symptoms consistent with these conditions (Parent). The BCHRT has also accepted that a person suffers from a disability based on a doctor’s note and a strata’s acceptance that a person suffers from a disability (Judd v Strata Plam LMS 737, 2010 BCHRT 276). The onus is on the complainant to prove that (a) the Strata discriminated against them with respect to an accommodation customarily available to the public because of a disability, and (b) not having a companion animal would have an adverse impact on them because of their disability (Parent, Judd).

Although complainants are not required to prove that they “cannot live” without a pet (Judd), it is not enough for the doctor’s note to simply say that they are supportive of an ESA and that a companion animal would be beneficial. Ideally, the doctor’s note should explain as much of the “who/what/ when/why.” Who is the patient, what condition are they suffering from or what symptoms are they experiencing, when did the conditions/symptoms begin, and why not having that (or a) companion animal would have an adverse impact on that patient’s health/disability? The clearer the explanation is about the nexus between the disability and the adverse impact of not having a companion animal, the better. In the bigger picture, the purpose of pet bylaws is to control pets and pet behaviour for the good of the strata community (Esfahani v. The Owners, Strata Plan BCS 2797, 2018 BCCRT 176). If a person’s companion animal is not interfering with another person’s right to use and enjoy their property, what is the harm in allowing people to live with their companion animals? Arguably, a bylaw that denies someone the right to live with their pet, can also be overly oppressive, and therefore, unenforceable (Hunt v. The Owners, Strata Plan EPS2112, 2021 BCRRT 173) — a topic for another article. Rebeka Breder is an animal law lawyer, and is the founder and Chair of the first CBABC Animal Law Section and of Breder Law, the first exclusive animal law firm in BC. Twitter: @animallawcanada APRIL 2022 / BARTALK 15

THE TRUTH ABOUT MENTAL HEALTH

& LAWYERS

May 5 12:30pm 1.5 CPD

Anxiety. Stress. Fatigue. The practice of law often exposes lawyers to conﬂict, demanding personalities, and traumatizing client experiences. Reconciling your expectations with the realities of practice can be diﬃcult. This session unpacks the truth about mental health and the legal profession. Our panelists share their experiences and practical advice for how lawyers can respond to these challenges.

16 BARTALK / APRIL 2022

guest

WINSTON SAYSON, QC

I Do Not Need a “Shrink” to Hold My Hand

or three decades, I was a trial Crown Counsel with the BC Prosecution Service. My case load consisted mainly of prosecuting devastating vehicular homicides and violent crimes against children and vulnerable victims. I thought that I was tough and would never need a “shrink” to hold my hand. I had a lack of understanding of those who went on “stress leave.” However, I retired early at the peak of my career. I was exhausted and burnt out from the cumulative and corrosive impact of my work. I retired seeking the help of a clinical psychologist and the guidance of a clinical counsellor. What happened? I placed upon myself heavy expectations. My family were immigrants from the Philippines. I was the first lawyer in my family. I was the first Filipino-Chinese Crown Counsel in British Columbia. I recall an incident early in my career. A defence counsel asked the court clerk about me: “Who is that junior ‘Charlie Chan’ calling the court list?” I needed to prove that I belonged. As an articled student, I was eager to prove my worth and diligence to the firm. When I got the call that my wife was going into labour with our first child, I rushed her to the hospital. But I also brought my work binder with me so that I could review the file in between her contractions. At the time, I thought I was doing the right and diligent thing. But when I look back at that today, I cringe with regret at how misguided my actions were.

The lack of knowledge and care for my mental health, the irrational drive to constantly prove myself, and the desire to be seen as productive, valuable, and available to everyone, eventually wore me out. The legal profession makes insatiable demands of our time and energy. Lawyers are celebrated and venerated for billing excessive hours. We crave the recognition and significance that come from our work, both in and out of court. We are valued for our ability to “win” cases, generate income, and produce excellent legal work. We desire stature, admiration, esteem, and respect from the legal community. We care and fight for our clients and causes. We must be strong and tough; we must always be present and available to those who need us. Our skills are required and sought to resolve or litigate conflicts, which are frequently highly antagonistic. We live in constant vigilance and fear of what people may say about us. The stressors of being a lawyer are many. We toil in a cauldron boiling over with the high stress, demands, and expectations of our profession. Unless we care for our physical, emotional, mental, and spiritual health, we will burn out. This is not a call to dumb down our profession or to remove all stressors from our work. This is a call to stop working non-stop. This is a call to

set honest and realistic expectations for ourselves and others. We need to set boundaries to guard our health and our relationships. We need to recognize the barriers to self-care. These barriers include a false sense of invincibility, unrealistic belief in our limitless energy, lack of humility, denial, ego, and pride. We need to know and keep an eye out for the symptoms of anxiety and mental health deterioration. These symptoms include procrastination, lack of motivation, fits of anger, exhaustion from prolonged stress, impatience, outbursts of emotions, incivility, listlessness, and depression. We need to recognize and identify the dangerous and destructive ways we self-medicate to mask or reduce the symptoms of our mental unwellness. These include substance abuse, procrastination, over or under sleeping, and denial. We need to create for ourselves a wellness and accountability regime. We need to have a wellness toolbox that includes a group of trusted people we ask to check in on us and keep us accountable, honesty to admit deterioration, and humility to seek help. We need to reset reasonable career goals and realistic income expectations. Give yourself the gift of health and wellness. Recalibrate how you measure your worth and success as a lawyer. Count the cost of what you seek to achieve and attain in your work and find that delicate balance. By doing so, you will be a healthier and better lawyer. Winston Sayson, QC (retired). APRIL 2022 / BARTALK 17

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BRANDON D. HASTINGS

Joint Tenancy | Tenancy in Common A suboptimal dichotomy

nder our Torrens system, there are two predominant forms of ownership: tenancy in common and joint tenancy. Tenancy in common provides, essentially, that the parties own the property in the proportion listed on title. Simple. Joint tenancy, on the other hand, is an odd beast. It provides for a rather peculiar, non-capitalistic, and non-individualistic notion that both parties own all of the property. Most lawyers probably remember the “four unities” rule of joint tenancy from law school (time, title, interest, and possession). Without going into detail, in theory this rule attracts two obvious problems, especially where the joint tenants are family members: (1) the joint tenancy can be severed unilaterally at any time by any joint tenant(s) and without the knowledge of the other joint tenant(s) (resulting in a tenancy in common), which (2) would then put the “common law” ownership of the property at odds with what is described by the land registry. A February 2011, BC Law Institute “Report on Joint Tenancy” notes “the common law rules arose at a time when spouses could not own land in joint tenancy.” It also calls joint tenancy and tenants in common “anachronistic.” And predominantly, joint tenancy poses problems to familial owners. Yet, British Columbian families continue to put property into joint tenancy; one would assume this is driven by right of survivorship, which is not available for tenancies in common. 18 BARTALK / APRIL 2022

In the landmark case V.J.F. v S.K.W., 2016 BCCA 186 the Court of Appeal reckoned with two divergent lines of law from the Supreme Court in considering the appropriate treatment of excluded property (property a spouse would ordinarily retain after separation) that is transferred from the name of one spouse into the other spouse. Would that property be “followed” into the other spouse’s name such that the exclusion was maintained, or was the exclusion lost by way of what was ostensibly a “gift?” The court found for the latter — the property was divisible as family property. On my analysis, it did this for two predominant reasons: (1) a more policy-centred argument: the transferor had transferred the property to his spouse’s name and thus represented to the world that the property was the transferee’s (I call this the “can’t have it both ways” test); and (2) a more technical argument under the Family Law Act that nothing was “derived from” the transferred property, and thus no exclusion remained. The same question was subsequently raised for what would have otherwise been excluded property transferred into joint tenancy. It’s a trickier question, because it’s not so clear if the property has been “transferred” or “gifted” to the other party when it is moved into joint tenancy. The leading case on this is Pisarski v. Piesik, 2019 BCCA 129, and the

Court of Appeal upheld the trial judge’s “intention” test — the transferor in that case lost their exclusion because they intended to “pool [their] contribution with [their spouse’s] funds for the purposes of the marriage” (see para 30 and on). The intention test, of course, is extraordinarily fact driven. And generally, fact-driven tests give lawyers a good opportunity to make money, and the courts leeway to do justice on the individual cases put before them, but provide little in the way of certainty, predictability, or a speedy and inexpensive resolution to claims for other litigants or would-be litigants. All of this makes it awfully tricky for parties in relationships to arrange their affairs in a streamlined, certain manner. Practically speaking, they either have to create and maintain documentary evidence during their relationships recognizing their intended treatment of transfers, or roll the dice down the road. I imagine most spouses do not have the legal sophistication necessary to form an intention “to pool” or “not to pool,” and so I suspect most of these arguments are probably post hoc attempts to rationalize past behaviour through faulty human memory. In the result, parties essentially have no easy, automatic, or compulsory mechanism by which they can recognize their desired treatment of contributions to shared property during a relationship, if they also want a right of survivorship. Brandon Hastings (bhastings.com) (he/him) is a civil and family litigator and mediator, who regularly conducts appeals, and practises with Cassady & Company on the traditional territory of the Qayqayt First Nation.

professionaldevelopment \

CBABC.ORG/EVENTS

The Business of Law Series Today’s legal services market requires lawyers and law firms to rethink how they advertise services, recruit talent, network with their peers and generate new business.

PART 1: Social Media for Lawyers

In-depth look at how the right social media strategy can help build a social media profile that expands client and professional networks while meeting ethical and professional responsibilities. On-Demand

PART 2: Marketing your Law Practice

Useful insights into start-up and monitoring costs, benefits, drawbacks of different channels, and how to leverage data to optimize a digital marketing strategy. On-Demand

PART 3: New Business Models

Join us on April 28 to learn how adapting your business model can transform the way you engage with clients and achieve business development goals. Register

EDI in Our Profession CBABC is committed to fostering equality, diversity, and inclusion (“EDI”) in the profession and the justice system. This year, we offer programs that address the systemic and structural barriers facing equality-seeking groups, while providing a safe forum to share ideas about EDI. On the Path to Equity for Women in Law | April 29 Diversity & Inclusion: The Power of Gray Area Thinking | May 3 Diversity on the Bench | May 12 Diversity on Tribunals | May 26

Upcoming Conferences CBA TERRITORIAL BRANCH CONFERENCE

NORTHERN BC LAW TALKS

Apr 7 | Virtual

May 13 | Provincial Court of BC, Prince George

NORTHERN LEGAL PERSPECTIVES

LAWYERING SKILLS IN THE NORTH

SOLICITORS’ CONFERENCE

WILLS & ESTATES CONFERENCE

Apr 22 | Sunrise Ridge Waterfront Resort, Parksville

June 10-12 | Hotel Eldorado, Kelowna

SOLICITORS’ CENTRAL VANCOUVER ISLAND

ADVANCED LEVEL ESTATE LAW

APRIL 2022 / BARTALK 19

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TAMARA HUCULAK

Do You Own Your Name?

Protecting your own name as a trademark may be harder than you think

any of the most well known and valuable brands stem from personal names, including Celine Dion, Taylor Swift and Terry Fox, which have all registered their names as a trademark in Canada. However, protecting a brand that is a word or words that are primarily the name or surname of an individual who is living or who has died, within the preceding thirty years, can prove to be difficult in Canada. Trademark registration is the best way to protect your brand. It will provide you protection in relation to your products and services associated with your trademark in Canada. It also provides you enhanced rights to prevent the use by your competitors of trademarks that are confusingly similar. In Canada, the Trademarks Act, R.S.C., 1985, c. T-13, (the “Act”) provides a method to overcome an objection for registering a trademark that is “primarily merely the name or surname of an individual who is living or who has died within the preceding thirty years.” Section 12(3) of the Act requires the applicant to furnish evidence to show that the name has been used in Canada as a trademark so as to have become distinctive as of the date of filing the application — that is, that your name has become renowned and your products and/or services 20 BARTALK / APRIL 2022

are well known in relation to your name. Evidence considered will have regard to the circumstances of the use of your trademark from the date of first use to the time of filing the application, including:

the length of time during which your name has been used in association with the products and services;

explanation on the manner of use of your name as a trademark in the advertisement of your products and services, including dollar volumes and types of advertising;

extent of use of your name as a trademark, which may include units, price per unit, dollar volume of sales, percentage of market for products

To obtain registration of a trademark you will need to be prepared to provide substantial evidence to prove your name has sufficient reputation and goodwill. or services sold, leased, or hired in association with the trademark; and

details as to publicity and media references in relation to the trademark.

However, even if you are able to provide enough evidence to meet subsection 12(3), you need to ensure you have been using your name as a “trademark.” The Act defines a trademark as, inter alia, a “sign or combination of signs that is used or, proposed to be used, by a person for the purpose of distinguishing or so as to distinguish their goods or services from those of others.” This means that a name may not be considered to be used as a trademark if the name has not been consistently used and/or does not stand out from surrounding text so it is distinguishable, thus, it is important to ensure use of your name is used as a trademark. Alternatively, if you are not prepared to, or cannot provide the evidence required by the Act to allow registration of solely your name as a trademark, you may consider a workaround. An option would be to consider adding to your name a design or unique, coined, or arbitrary words to create a distinctive trademark that is not solely your name. So, yes, you can own your personal name as a brand for your business. But to obtain registration of a trademark you will need to be prepared to provide substantial evidence to prove your name has sufficient reputation and goodwill in association with your products and services, so to distinguish your products and services from those of others.

Tamara Huculak is a Wordle obsessed assistant hockey coach and is also a lawyer, trademark agent, and partner at Richards Buell Sutton LLP. linkedin.com/in/ tamarahuculak

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JOEL V. PAYNE

We’re All on the Truman Show Now

ameras are seemingly all around us, nearly all the time. Cars are roving video camera platforms. Doorbells are cameras. Houses and storefronts are polka dotted with miniature cameras that catch sharp images of everything and everyone all around them. People walk around town with cameras on sticks, livestreaming on Twitch and Facebook. Having your image recorded and put online, whether by choice, accidentally, or illegally, means that it will probably be gobbled up and saved by anyone who knows how to deploy an image scraping bot on the internet. This might be done by major search engines, internet archive webpages, academics, hobbyists, stalkers, private enterprises, or even state actors. Images of you, even incidentally captured, could be sold to data brokers and resold anywhere in the world. Some people shrug at the thought of losing control over their image on the internet. But this attitude is too often the product of blissful ignorance, like Truman in the first act of the Truman Show. Consider the recent joint investigation of Clearview AI, Inc. by the federal, Quebec, Alberta, and British Columbia privacy commissioners. This private US company scraped billions of images from search engines and social media sites for its own facial recognition database. Countless other companies or

state actors could be doing the same thing without being discovered. The technology that can turn your physical identity into a mathematical fingerprint is not just for well-funded technocrats. Take, for example, the existence of free and open-source software libraries that just about anyone can use to create machine learning facial recognition applications. There are similar libraries for analyzing and recognizing a person’s gait or other bodily movements. These tools are the tip of the iceberg; they are early implementations of technology that is still developing at a blistering, and accelerating, pace. Meanwhile, laws designed to preserve and protect our privacy languish in a bygone era. Copyright law is of little assistance. Unless you captured the image, you generally do not own any rights to it, even if it is an image of you. There are privacy torts. But jurisdictional and enforcement problems, and the extreme cost and duration of litigation in Canada, make civil remedies impractical for most people. Existing federal and provincial privacy laws that regulate the use of personal information in the private sector were simply not created to deal with the kinds of issues we face today. The federal government

has been planning to replace the Personal Information Protection and Electronics Documents Act with a more modern “Digital Charter.” However, this bill was swept away by the 2021 election and has not been tabled in the current Parliament. Even if it is enacted, it will already be out of date. It will not be enough. We must face the real possibility that the nature and scale of technology-related privacy problems have already exceeded the grasp of laws and governments. If we wish to regain some measure of control of our own images, the first step is education and awareness. We must become more conscious about the fact that a day rarely passes without each of us being recorded in some way. Be aware that the data contained in images of you is extremely portable and replicable. Be aware that images of you can be more valuable and sought after than you might imagine — for uses you might not be able to anticipate or even imagine. In time, societal norms about the appropriateness of indiscriminately recording or broadcasting everyone and everything may change. Consumer choices might push businesses to do more to protect our images. Privacy-preserving technology might even help us fight back. But for now, “in case I don’t see you, good afternoon, good evening, and goodnight!” Joel V. Payne is a civil litigation and appeals lawyer. He provides smart and fearless advocacy using modern technology. APRIL 2022 / BARTALK 21

sectiontalk Between January and March, Sections hosted almost 70 virtual meetings. Meetings were held mainly by Zoom with most recorded and made available to Section members. Here were some of our most popular:

Hey, You’ve Started Your Own Firm, Now What? General Practice, Solo & Small Firm — Lower Mainland hosted Marina Sedai, Edward Wong, and Cheryl D’Sa, who all practise in different areas of law but have founded and operated their own firms for many years now. They shared the experience and wisdom they gained from guiding their firms through the early years, particularly with regards to hiring considerations, marketing, practice management, and others.

Anti-Money Laundering Update for Business Lawyers Business Law hosted Christine Duhaime of Fusion Intelligence who discussed the latest developments in anti-money laundering law. Christine focused on the Emergencies Act, the Land Owner Transparency Act, and the anatomy of a FINTRAC disclosure and why it matters to lawyers and their clients.

Top 10 Intellectual Property Cases of 2021 The last year had some interesting intellectual property cases decided as new technologies come to the forefront. Intellectual Property & Technology Law hosted a panel of senior lawyers, including Scott Foster, Kwan Loh, and Jennifer Marles, who bring a wealth of experience in the IP field.

Aboriginal Title & Fee Simple Real Property — Vancouver hosted Chris Roine who gave an overview of the current understanding of how Aboriginal title claims may apply to or affect fee simple property rights. Chris also outlined the associated considerations for counsel, purchasers, vendors, and lenders.

The Live Export of Horses in Canada — Time for a Ban? This joint meeting by BC, Manitoba, and PEI CBA Animal Law Sections discussed the background and legalities of the live export of horses in Canada for slaughter. Sinikka Crosland, Dr. Rebecca Ledger, Nathaniel Erskine-Smith, Jann Arden, and Rebeka Breder also covered animal welfare concerns and the people trying to end the live export of horses in Canada.

Essential Law and Practice Points for Serving Two-Spirit & Indigenous 2SLGBTQIA+ Clients CBABC SOGIC and the Aboriginal Lawyers Forum hosted Tuma Young, QC, and Carly Teillet who shared insights on respectfully engaging with Two-Spirit and Indigenous 2SLGBTQIA+ clients and colleagues, and the pressing legal issues facing these communities across Canada. View this session On-Demand.

22 BARTALK / APRIL 2022

EMAIL: SECTIONS@CBABC.ORG

SOGIC UPDATE — by Lee (Lisa) MG Nevens (they/them)

We’re Not There Yet: Hate Doesn’t Let Up, So Neither Can We The International Day Against Homophobia, Transphobia, Biphobia, and other anti-2SLGBTQIA+1 hate is a day to raise awareness about ongoing violence and discrimination against 2SLGBTQIA+ people and communities, both globally and here at home. This year’s theme, “Our Bodies, Our Lives, Our Rights,” aptly summarises the many facets of the struggle faced by our communities — from having agency over our own bodies to openly loving who we love; from being free from harassment to being free from targeted violence and incarceration. According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s 2020 report on state-sponsored homophobia:

67 countries have criminal provisions against consensual same-sex “conduct” with punishment ranging from incarceration to the death penalty;

at least 42 countries have legal barriers to freedom of expression on issues related to sexual and gender diversity; and

at least 51 countries have legal barriers to registering or operating organisations working on sexual and gender diversity issues.

Not captured in this data is the rash of anti-trans legislation in the United States and beyond, targeting access to everything from vital gender-affirming medical care, to washrooms, to participation in sports. Canada is not immune from this hate and its repercussions. The past few years have demonstrated not only that hate and ignorance are alive and well in Canada, but that it can be weaponized for political gain. As we’ve seen around the world, when that happens 2SLGBTQIA+ people — our bodies, our lives, and our rights — are in grave danger of being further attacked for political ends. So what do we do? We redouble our education and advocacy efforts. We remain steadfast in our commitment to human rights for all. We build communities of respect, resilience, and support. The struggle for freedom from discrimination is not a one-off battle, but a life-long commitment animated by principle and powered by love. So we don’t stop. We can’t afford to. 2-spirit, lesbian, gay, bisexual, trans, queer, intersex, asexual, and other minority or marginalised sexual orientations, sex characteristics, and gender identities and expressions. 1

WLF UPDATE by Cherisse Friesen

Save the Date — On the Path to Equity for Women in Law Lawyers and law students are invited to attend On the Path to Equity for Women in Law virtual event on Friday, April 29, 2022 from 12:30 to 2:00 p.m. Co-hosted by the International Association of Women Judges, CBABC, and the Law Society of BC, the event will highlight the progress that women lawyers in British Columbia have made on the path to equity so far and tackle existing barriers to progress. Participants will hear from a panel of diverse women lawyers about some of the challenges and triumphs they’ve experienced and their tips for success, as well as have a choice to attend breakout discussions on retention and representation, pay equity, career progression, childcare, maternity, eldercare, sexual harassment, discrimination, and flexible and remote work.

APRIL 2022 / BARTALK 23

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ASHLEY SYER

But it’s My House!

Residential Tenancy challenges for property owners

enting out a suite in your home or an investment property can be a great way to earn some extra income or afford a property that may otherwise be out of reach, but being a landlord can also be fraught with unanticipated challenges. Inexperienced landlords may not realize the limitations on their ability to do what they want with their property once a tenancy is involved. Residential tenancies in British Columbia are governed by the Residential Tenancy Act, S.B.C. 2002, c. 78 (the “RTA”), whether or not there is a written tenancy agreement in place. The RTA imposes certain terms on all tenancies, which landlords and tenants cannot contract out of. One of the most significant restrictions in the RTA is on how a landlord can end a tenancy. Often, landlords believe that they can end a tenancy without a good reason. The RTA sets out the only valid reasons for ending a tenancy, including nonpayment of rent, cause, and landlord’s use of property. Ending a tenancy for cause can prove challenging, except in the clearest of circumstances or where a tenant is repeatedly late paying their rent. For example, the RTA allows a landlord to end a tenancy for cause for material breaches of the tenancy agreement. However, a landlord must have given a written warning to the tenant that they have breached a material term, and give 24 BARTALK / APRIL 2022

them a “reasonable” amount of time to correct the breach. There is little guidance about which terms may or may not be material, or what may constitute a “reasonable” amount of time. Where a landlord believes they have cause to end a tenancy, they must deliver a one-month notice, in the correct form, which becomes effective the last day of the next full month. For example, a notice served on March 1 would not be effective until April 30. Given the recent backlogs at the Residential Tenancy Branch (the “RTB”), which has exclusive jurisdiction over most things relating to residential tenancies, if a tenant decided to challenge a notice, the hearing may not be scheduled until many months in the future. Accepting rent without a “use and occupancy only” receipt during this time could cause the tenancy to be inadvertently reinstated. RTB arbitrations are scheduled for one hour by telephone, and can stretch into multiple hearings if the issues are complex or the evidence voluminous. If the arbitrator grants an order of possession in favour of a landlord and the tenant does not leave voluntarily, the order must be converted to a writ of possession and can only be enforced by a bailiff. Ending a tenancy for landlord’s use of property comes with its

own challenges. Landlord’s use of property means that the landlord or their spouse, child or parent, or purchaser will occupy the property for residential purposes. Steps must be taken within a “reasonable” amount of time to accomplish the stated purpose, and the landlord must continuously use the property for that purpose for at least six months. Notices cannot be unilaterally withdrawn after they are given. There is a good faith requirement for ending the tenancy for landlord’s use of property, and failure to act in good faith may result in a tenant being granted a compensation order in the amount of 12 times their monthly rent, except where there were extenuating circumstances. Arbitrators have no discretion to vary that amount, so the penalties can be hefty where the monthly rent was significant. Using a property for a different purpose from that written on the notice will attract the 12-month penalty. Ending the tenancy to turn the rental unit into a short-term rental is not a valid reason to end the tenancy under the RTA, even if used occasionally by the landlord, and will attract the 12-month penalty. To avoid some of these pitfalls, landlords should screen their tenants carefully, double-check their paperwork, and ensure they get legal advice from someone who practises in the area prior to trying to end a tenancy for any reason. Ashley Syer is a lawyer and mediator at Syer Law and Gastown Mediation, and founder of The Lawyer Incubator.

feature

MAYA MEDEIROS

Ownership of IP Rights in AI Creations

rtificial Intelligence (“AI”) systems are capable of creating artistic works and inventions without human involvement. These AI creations raise challenges to intellectual property (“IP”) frameworks worldwide. Can a patent application have an AI inventor? Are AI created works protectable by copyright? Who owns AI-generated IP? PATENTS FOR AI-GENERATED INVENTIONS

Dr. Stephen Thaler filed patent applications in various patent offices worldwide. This was not a typical patent application. Dr. Thaler was not listed as the inventor. Rather, the sole inventor was “Device for Autonomous Bootstrapping of Unified Sentience,” or DABUS, an AI machine created by Dr. Thaler and designed to invent. In some jurisdictions, including the US, the patent application was rejected on the basis that a nonhuman machine cannot be an inventor. However, the South African office granted the DABUS application, the world’s first patent for an AI-created invention. Notably, South Africa does not have a substantive patent examination process. Further, the Australian Federal Court reversed the Australian office’s rejection of the DABUS patent application and found that an AI machine could be an inventor. In December 2021, the Canadian Intellectual Property Office (“CIPO”) issued a non-compliance notice for the DABUS patent application because “the inventor is a machine and it does not appear possible for a machine to

have rights under Canadian law or to transfer those rights to a human.” However, the CIPO notice also stated that the applicant Dr. Thaler may attempt to comply by submitting a statement on behalf of the AI machine identifying himself as the legal representative of the machine. The CIPO examination of the DABUS patent application is still ongoing. If an AI machine cannot be listed as an inventor, then this threshold determination may bar patent protection for AI-generated inventions. This may dissuade disclosure of valuable AI-generated inventions, which may instead be protected as confidential information. COPYRIGHT FOR AIGENERATED WORK

DABUS has also created artwork that represents its simulations of a dying brain, including an image titled “A Recent Entrance to Paradise.” The US office refused to register copyright for the work on the basis that human authorship is required. On February 14, 2022, the US Copyright Review board upheld the refusal, noting that historically courts have limited copyright protection to works created by human authors. For example, a US court ruled that a monkey cannot own copyright in its “selfie” photo. DABUS was the sole listed author of the artwork. Would listing a human co-author change this finding? In December 2021, CIPO granted a copyright registration for a painting

titled “Suryast” that lists two co-authors, Mr. Ankit Sahni and RAGHAV Artificial Intelligence Painting App (RAGHAV), making Suryast the first ever Canadian copyright registration with an AI author. However, it is unclear if CIPO would register copyright for the DABUS work having no human co-author. While there is no explicit definition of the term “author,” Canadian case law has traditionally held that an author “must be a natural person” “who exercises skill and judgment” in creating the work. Listing a human co-author for an AI created work seems to meet that requirement. The Canadian government is in the process of “modernizing” the Copyright Act and issued a report which references authorship and ownership of AI-generated and AI-assisted works.1 WHO OWNS THE IP RIGHTS?

Even if an AI system can be a patent inventor or copyright author, it is unclear whether an applicant is entitled to own these AI creations. How can a machine transfer IP rights to the applicant? Is a machine’s creator by default its legal representative? What if the owner is different than the machine’s creator? What if a user of the machine was involved in the creation process, and that user is different than the machine’s creator or owner? IP law will have to adapt to respond to novel questions triggered by AI. Committee Report No. 16 — INDU (42-1) — House of Commons of Canada (ourcommons.ca) 1

Maya Medeiros, an intellectual property lawyer and patent agent with a degree in mathematics and computer science. She is a partner at Norton Rose Fulbright and key contributor to insidetechlaw.com on the ethical and legal implications of artificial intelligence. APRIL 2022 / BARTALK 25

practicetalk DAVID J. BILINSKY

Managing Your Time

Using your most precious asset effectively r But there never seems to be enough time To do the things you want to do, once you find them... r — Music, Lyrics and recorded by Jim Croce.

hat is the one thing we all own in equal measure, every day? The answer is simply enough — Time. We all take our daily allotment and spend it on work, pleasure, things we have to do, things we want to do, things we wished we didn’t have to do, things that waste time, and more. How we use it can make us happy, it can make us sad, it can bring about positive change to the world, it can bring a smile to someone’s face, or sadness to another. Two things we can’t do with it is bank it or get more of it. Accordingly, let’s spend a little time to explore how to best manage our time. The first step is to write down your goals. These are not just work and career goals but life goals as well. You may want to make partner or launch your own firm. You may wish to do public advocacy work or learn to play a musical instrument or write a play. You may wish to ski more often, run a marathon, or travel. The point is that goals unset are goals unmet. What does success mean to you? Rank your life’s goals, research what has to be done to achieve them and then develop a plan that will take you to your life’s goals. 26 BARTALK / APRIL 2022

Next, write out the tasks that will take you toward your life goals and those that others have set for you. Each task should take you closer to a goal.

Remember that tasks should be S.M.A.R.T.: Specific, Measurable, Attainable, Relevant, and Time Based.

+I+U: Do these tasks right away.

+I~U: These are your long-term goals. Set aside time for these in your day!

Specific: Goals should be tightly focused and clear so you can foresee the steps that need to be taken for goal achievement. Measurable: What gets measured gets done. Have milestones set that allow you to judge your progress toward goal achievement. Attainable: Do you have what you need to achieve your goal? Or do you have to gain experience, education, skills, or credentials to do this? Perhaps you need to set sub-goals to take you toward your big goal.

Relevant: Do your tasks bring you closer to your life’s goals?

Time Based: Set a deadline for each task to hold yourself accountable.

Now, sort out your tasks into four categories:

Important and urgent: +I+U

Important but not urgent: +I~U

Urgent but not important: +U~I

Not urgent and not important: ~U~I

Sorting your tasks starts the process of prioritization:

+U~I: Delegate these tasks if possible. If not, schedule them lower in priority.

~U~I: Set these aside to do later, if ever (typically time wasters).

Create a “To Do” list from your priorities and keep it on your desk. This allows you to keep your priorities in front of you at all times. Organize your desk and remove clutter — those are usually distractions. Develop good time management skills and habits. Good time management skills can be learned and nurtured over time and will only increase your value to your firm, to your family, and of course, to yourself. They will allow you to find time to do the things you enjoy. Set a time budget and allocate a set time to each task and then block off time in your daily calendar based on your tasks. Once a task time is up — evaluate what has to be done to complete the task, create a new To-Do, sort your To-Dos again, and start the next task.

Cut out all time-wasting activities. Reward yourself for task accomplishment with a small break and reward. Reinforce how good time management works for you and clears your To-Do list as you work through your day. Remember that procrastination is the enemy of goal achievement. Procrastination can be a sign of a fear of success, a fear of failure, that you don’t deserve your life’s goal or find a task overwhelming. When the urge to procrastinate comes on, counter it by immediately working a bit on your goal and a task and experience the relief in having started. Break down a big task into smaller portions and conquer each in turn and watch your progress. Plan to deal with obstacles and interruptions. If someone walks into your office and looks to be staying, grab your coffee cup and head off to the coffee machine. They can talk while you get a coffee and — you got them out of your office! Resolve to stop multitasking. It may feel like you are accomplishing a lot, but that doesn’t stand up. According to bit.ly/bt0422pt-1: “Studies now show that multitasking can actually damage the brain. As the brain can primarily focus on one thing at a time, keeping track of multiple things at once or accepting multiple streams of information can lead to decreased productivity and distraction from the task at hand.” Consistently work on your Important but not Urgent: +I~U tasks. These are the ones that will change your life’s path as you desire it to be.

Plan your tasks to gradually move yourself into the area(s) of practice in which you desire to be. Measure your progress to stay motivated! Set a daily billable time goal and track your progress to it throughout your day. You owe it to your family, your firm, and not the least of all, to yourself to grow into being a more effective and responsible lawyer each and every day. Hold yourself accountable for your progress and reward yourself for achieving your daily billable time goal. Track all your time — billable and non-billable. There are many reasons for doing this. By seeing where you are spending your time, you increase accountability to yourself and to others. Tracking all your time increases your focus on your +I+U tasks. It exposes your time wasters, time sinks, and traps. It prevents project creep, by keeping tasks within their allocated time budget. You enhance your personal bottom line, which in turn benefits yourself and your practice. Most importantly, it will gradually transform you into a better lawyer. Prevent leaks in your time boat. There are many possible ways to leak billable time. The first is the failure to accurately capture time. Up to 40% of your billable time can be lost if not recorded contemporaneously with task completion. A second is to write off billable time at the time of billing. A third is to reduce an invoice to receive payment. A final one is to write off an entire bill as uncollectible. Plug the leaks in your financial boat by using your time to

achieve effective client objectives. Remember client satisfaction ultimately drives collections. Having an accurate billable and non-billable time record allows you to perform analytics on your time and finances. A “Key Statistics” report will show you the financial health of your practice at a glance with such indicators as: Effective Hourly Rate, Work In Progress, Billings, Billing Turnover, your Billing Realization, your Collection Realization Rate, and many more. Accurate time records will also allow you to forecast your future cash flows and track them against your cash flow needs, providing you with feedback on your financial health and providing you with needed information for cash flow management. Lastly, pass on your hard-earned knowledge. Teach younger lawyers your time management skills. Act as a time mentor and help grow the next generation of associates into lawyers and partners your firm will value. Good time management skills can help us all make the most of this most precious of resources, and thereby find the time to do the things we want to do, once we find them. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of CBABC, or their respective members.

David J. Bilinsky, Barrister & Solicitor, is the principal of Thoughtful Legal Management, a legal technology and practice management consultancy and is the former Practice Management Advisor of the Law Society of British Columbia. Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com APRIL 2022 / BARTALK 27

communitynews BCLI to Release Guide on Gender Diversity in Legal Writing The BC Law Institute is creating a guide to gender inclusive writing for the legal profession. The guide presents different techniques for legal writers to employ in reflecting and respecting the full spectrum of human genders, and adopting gender inclusivity as a baseline component of objective legal writing. In the same way laws evolve over time to meet the needs of new generations, language and writing styles must also adapt. Gender specific and binary language often exclude or marginalize people by drawing differences that have no impact on the information being conveyed. Further, gender inclusivity is a matter of justice and professionalism. Everyone is “equal before and under the law” as articulated in the Charter, and everyone deserves to be reflected within it. This understanding has manifested in recent shifts in the legal profession, including Provincial and Supreme Court Practice Directives requiring the use of pronouns in court introductions, and the move away from My Lord and My Lady as honorifics. The BCLI is pleased to support the legal profession in making this move toward inclusivity. The guide will be available on the BCLI website at bcli.org. This guide was prepared with the support of the Law Foundation of BC.

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nothingofficial TONY WILSON, QC

“We Demand to Speak to the Manager of Canada!!!” Reflections on the “Freedom” Convoy

ne of the best memes that was circulating during the Truckers’ “Freedom” Convoy went like this: “I’m gonna go block the McDonalds drivethru until they bring back Pizza! That’s how we do things in Canada now, right?” To be clear, peaceful protest is a constitutionally protected right under the Charter and guarantees the right to participate in peaceful demonstrations, protests, parades, meetings, and picketing. But it does not protect riots and gatherings that seriously disturb the peace nor the right to physically impede or blockade lawful activities. Otherwise, the rest of us should have the right to block all the truckers’ driveways with our cars, bicycles, and bouncy castles and honk our horns through the night because we don’t like the choice of their music; all in the name of “freedom.” And although everyone is tired of COVID and the mandates, what started as lawful protest, quickly morphed into a would-be insurrection. The crisis showed what an angry group of anti-vaxxers and blatant Trudeau-haters can do when they don’t like the results of a federal election and the laws that a democratically elected government can enact to protect the health of its citizens. Armed with their big rigs, truck horns, foreign donors, blatherskite, and quackadoodle conspiracy theories, they showed how easy it was to hold the Canadian government and its economy hostage. It didn’t help that the police were caught unprepared and flat footed.

Someone said that the truckers’ insurrection was an existential proxy battle between “85% of Canadians who were fully vaccinated and 15% who were fully dewormed.” From what I saw, the demonstrators had an unshakable belief that mandates based on science and meant to prevent illness and death were at odds with their freedom to enter a bar without being vaccinated or wearing a mask. I’m not sure why they thought the federal government had the constitutional power to end all COVID mandates in Canada when the majority of mandates were provincial. But rather than getting vaccinated so that they could cross the US border and easily return to Canada like the other 90% of Canadian truckers, they had a temper tantrum and held the country hostage — all in the name of “freedom.” Some of them didn’t help their cause by appealing to the (unelected) Governor General and the (unelected) Senate to overthrow the (elected) government (which was apparently guilty of treason). Nor did it help win over public opinion when others in their ranks called for the death of the Prime Minister, yelled racist slurs at Ottawa residents, or proudly displayed swastikas and confederate flags while screaming “Freedumb!” (no irony there). At least one organizer stated that the insurrection would only “end in bullets.” I’m sure a few MP’s now regret posing for selfies with the insurrectionists and championing their cause.

The siege in Ottawa, the barricade of the Ambassador Bridge, the assassination rhetoric, and the discovery of a cache of arms at the Coombs border crossing made the declaration of the Emergencies Act inevitable. And it’s yet to be seen whether some of the donors on GoFundMe and GiveSendGo were attempting to bankroll the kind of nut-bar/ QAnon/ white supremacist/Trumpist revolt that occurred in the US in 2021. This begs the question as to whether the truckers became “useful idiots” to more dangerous, extreme, and undemocratic political actors. There was a lot of “clutching of pearls” during the six days the Emergencies Act was declared but not in force. Claims that Canadians lived in an undemocratic “Trudictatorship,” and that Trudeau was a disgrace, a toddler, and a tyrant were, frankly, infantile. Even Elon Musk compared Trudeau to Hitler. Two weeks later, Vladimir Putin and his Russian Thugocracy showed all of them what a real tyrant looked like and how a real dictatorship operated. I expect the horrible events in Ukraine will have a sobering effect on those who claim that Canada is not a free and democratic country, and remind them what a loss of freedom really looks like. 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, CBABC, or their respective members. APRIL 2022 / BARTALK 29

communitynews TIPS FROM

An Ungodly Jumble of Light Reading

Ah, ownership. The simple right to enjoy and dispose of things in the most absolute manner… subject only to whatever restrictions can be found in law… and therefore to the many restrictions, exceptions, and complexities borne from centuries of common law since the age of Norman feudalism. You’ll no doubt agree that a topic like the law of ownership is why we are so indebted to brave legal authors who attempt legal treatises. Sir William Blackstone’s 1766 treatise, Commentaries on the Laws of England, is a great example of such a work. The Commentaries comprised four volumes and summarized all the law that was fit to know (at least a quarter century ago): I. The Rights of Person; II. The Rights of Things; III. Of Private Wrongs; and IV. Of Public Wrongs. The second volume is dedicated to property rights and various flavours of ownership in corporeal and incorporeal things, and is by far the longest of Blackstone’s volumes at 520 pages. It was a valiant attempt to untangle the feudal mess of property laws that Oliver Cromwell disparaged as an “ungodly jumble.” If you’re curious, we have two sets of Blackstone’s great work in the 1898 edition, one in each of our Vancouver and Victoria branches. Admittedly, the volumes of Commentaries are a bit dated — and it has been said that Blackstone’s discussion of trusts always left something to be desired. Thus, it may please you to know that we also have the 2021 (fifth) edition of Waters’ Law of Trusts in Canada available for loan. You might also be interested in commentary on real property law that leans less toward the ancient and esoteric, and more to the practical and jurisdictionally relevant, in which case we offer comprehensive access to the various real estate-specific titles published by the Continuing Legal Education Society of British Columbia, including deskbooks, practice manuals, and volumes of annotated precedents.

CLEBC Resources for Junior Lawyers and Students Great lawyers aren’t born — they’re made — and CLEBC is here to help you get your legal career started right. We’re pleased to offer a wide variety of courses and resources specifically designed for both law students and aspiring junior lawyers. Whether you’re looking to learn how to

30 BARTALK / APRIL 2022

launch a successful litigation career, the risks involved with the early years of practice, how to run a family law file, or starting a solo career, we have you covered. Let our team of experts get your legal career off to a great start! We are pleased to present CLEBC’s complimentary program, “Junior Lawyers Risk Management Conference” on April 27 as well as “Going Solo or Starting a Small Firm” on May 25.

Later this year, don’t miss CLEBC’s rebroadcast of the ever-popular “How to Be a Great Litigation Junior” that was originally presented on March 4, 2022. For more details on these programs and other resources for junior lawyer, articled and law students, visit: cle.bc.ca/ jrlawyers22.

communitynews How the Tenant Resource & Advisory Centre Enhances Legal Protection of Residential Tenants in British Columbia A significant portion of the population of British Columbia consists of renters. Legal services for tenants, such as those offered by the Tenant Resource & Advisory Centre (“TRAC”), are vital. Since 1984 this non-profit organization has provided free legal services for tenants and advocates across BC, particularly for economically vulnerable populations such as youth, seniors, and new immigrants. Support from the Law Foundation of BC allows TRAC to offer a diverse range of services, information on tenancy rights and educational tools to people province-wide. Direct advocacy is an important aspect of TRAC’s work, and people facing critical issues such as eviction have greatly benefitted from TRAC’s services. Evictions are highly stressful situations. TRAC advocates need to be able to respond quickly to dispute eviction notices and in many cases are able to negotiate with landlords in order to prevent homelessness. Through the Law Foundation’s advocacy grant, TRAC has been able to increase staffing so that more people needing direct advocacy can be assisted. Like many organizations, the pandemic has impacted how TRAC delivers its services. TRAC offers digital education and online resources to the communities it serves. Since March 2020, the workshops it offers have become entirely web-based. While in-person direct advocacy meetings have ceased, Zoom calls and phone calls have seamlessly replaced them for most clients. The pandemic has also increased TRAC’s workload, including a 27% increase in calls to the Tenant Infoline. Eviction is the top reason tenants contact TRAC, and this has held true during the pandemic. “TRAC is a small organization with a large mandate, and I’m really proud of the way our team has grown over recent years to better meet the high demand for our services,” says TRAC’s Executive Director, Andrew Sakamoto. “No other non-profit in the province offers our range of free legal programs — from basic information and referrals through our Tenant Infoline and online courses, to full representation services at the Residential Tenancy Branch and BC Supreme Court. Tenant education and advocacy is more important than ever, and we will continue to find ways to expand our services and better fulfill our mandate of enhancing legal protections for anyone renting their home in British Columbia.” To learn more about TRAC and its services, please visit their website: tenants.bc.ca

Canadian Bar Association, BC Branch

GIVE BACK TO THE FUTURE OF THE LEGAL PROFESSION Donate your robes to new lawyers who need them. cbabc.org/RobeBank

APRIL 2022 / BARTALK 31

barmoves Who’s Moving Where and When Anthony Pranata

Jennifer Leach Sandford

moved his corporate commercial and estate planning practice to Synergy Business Lawyers LLP.

joined Horne Coupar LLP toward the end of 2021, and has relocated from Quebec. Jennifer practises in the areas of trusts, estates, and tax planning, and is fluent in English and French.

Kirby Mack

Kate Mackay

joined Lindsay Kenney LLP as a lawyer in their Business group.

joined the partnership of PLLR Lawyers. Called to the Bar in 2013, Kate advises clients in matters related to real estate, banking and finance, and corporate/ commercial law.

Daniel MacNeill

Matthew Beharry

joined Lindsay Kenney LLP as a lawyer in their Family Law group.

joined the partnership of PLLR Lawyers. Called to the Bar in 2013, Matthew practises in the areas of commercial and construction litigation as well as insurance defence.

Albert Chiu

Song Xue

joined Lindsay Kenney LLP as a lawyer in their Business and Real Estate Practice groups.

joined Harper Grey as an associate with their Commercial Litigation group.

Clare M. Sparks

Nika Pidskalny

recently joined Horne Coupar LLP, and practises family law and estate litigation. Clare was called to the Bar in 2016, and was previously with Quadra Legal Centre.

joined Lawson Lundell as counsel in their Corporate Commercial group and their Technology group. Nika was called to the British Columbia Bar in 2018.

32 BARTALK / APRIL 2022

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.

Erin Hunter

Reilly Pollard

joined the DLA Piper (Canada) LLP Vancouver office Litigation, Arbitration, Investigations, and Forestry groups as an associate and will assist with forestry-related litigation and advisory work.

joined the partnership of Lindsay Kenney LLP (LK Law). Reilly’s practice focuses on civil and commercial litigation as well as bankruptcy and insolvency.

Jahaan Premji

Kanchan Dhahan

joined Lawson Lundell as an associate in their Litigation & Dispute Resolution group. Jahaan was called to the Alberta Bar in 2021.

joined KSW Lawyers after working with several law firms in the Lower Mainland and Prince George. She is the head of their Family Law group and assists with civil litigation matters when possible.

Buck Hughes

Fayme K. Hodal

joined as an associate with Clark Wilson LLP’s Infrastructure, Construction, and Procurement group.

joined KSW Lawyers and assists with all employment law matters, including wrongful and constructive dismissals, dismissals for cause, executive compensation and buy-outs, and negotiation of severance packages.

Paul Smith

Tyler Evans

All of the professionals and staff of the Vancouver IP boutique firm SMITHS IP have joined the IP boutique firm Oyen Wiggs to boost both the depth of the firm and its litigation capacity.

joined KSW Lawyers and assists with all real estate and business matters, including commercial and residential conveyancing, mortgages and financing, land development and commercial leasing.

Jocelyn Lau

Gita Keshava

joined Lindsay LLP as an associate lawyer, practising primarily in insurance law.

joined Ethos Law Group LLP as an associate. She maintains a general litigation practice, including assisting clients in constitutional, administrative, Aboriginal, and civil law disputes.

APRIL 2022 / BARTALK 33

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BarTalk April 2022 | The Law of Ownership

Articles inside

Ownership of IP Rights in AI Creations

BarMoves

But it’s My House

SectionTalk

Joint Tenancy | Tenancy in Common

We’re All on the Truman Show Now

I Do Not Need a “Shrink” to Hold My Hand

Do You Own Your Name?

Set Apart by Her Majesty

Patented Medicines and the Patent Bargain

Advocacy in Action

Beyond Property — Access to Justice for Animals

Defenders of the Rule of Law

Are Fictional Languages Copyrightable?

CBABC News

Non-Fungible Tokens (NFTs

The “Bare” Minimum? Or Just Enough?