BarTalk December 2023 | Evolving Legal Traditions by The Canadian Bar Association, BC Branch

DECEMBER 2023 | bartalkonline.org

Evolving Legal Traditions A TRADITION FOR JUSTICE | TRAUMA-INFORMED LAWYERING

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Evolving Legal Traditions Features 6

The Evolving Definition of “Marriage-Like” Relationship

DECEMBER 2023 Volume 35 | Number 6

Columns From the President

Heather Mathison and Esra Yacout 7

A Tradition for Justice: Pro Bono Work Connor Bildfell

CEO/Executive Director 5

Trauma-Informed Lawyering Will Transform Your Practice Myrna McCallum

Changing Approaches to Legal Traditions David J. Bilinsky Nothing Official

Truth or Consequences Tony Wilson, KC

Embracing Equity, Diversity and Inclusion: The Need to Transform Dimple Kainth

From the Branch

The Glass Ceiling and the Unique Challenges That Women Face

Advocacy in Action

SectionTalk

Professional Development

Aisha Naveed 16

PracticeTalk

Anti-Racism in Action Clare Jennings, KC and Hasan Alam

Seeking Joy in Difficult Times Kerry L. Simmons, KC

Indigenous Matters

It’s Okay Not to Be Okay Scott Morishita

Family Law and Legal Culture Brandon D. Hastings Indigenous Matters

Indigenous Law Stephanie Konefall

When Stuff Happens John Lakes

“Simple Tricks” to Make our Bar More Equitable, Diverse and Inclusive Jim Wu

Changes to B.C.’s Family Law Act Include Pet Custody Provisions Rebeka Breder

From the Community Courthouse Libraries BC

Legal Credentials: From Parchment to Pixels CLEBC

Updates to Three Popular CLEBC Deskbooks BCLI Feature

Legal Pluralism and the Evolution of Laws in B.C. The Law Foundation of BC

Indigenous Advisory Circle

BarMoves

Isabel Jackson, Committee Chair Editorial Committee Emma Abdjalieva John Caldwell Demola Okeowo Miranda Wardman Lily Zhang Tonie Beharrell Dan Melnick Salim Visram Özge Yazar Deborah Carfrae, BarTalk Editor BarTalk is produced on the traditional and unceded territories of the Coast Salish peoples, including the Musqueam, Squamish and Tsleil-Waututh Nations. BarTalk is published six times per year by the Canadian Bar Association, B.C. Branch (CBABC) and is available at cbabc.org/bartalk. This publication is intended for information purposes only and is not legal advice. CBABC supports more than 7,600 members in British Columbia. We connect our members to the people, knowledge and skills they need to successfully practice. BarTalk enquiries, suggestions and letters to the editor: Canadian Bar Association, B.C. Branch 915 — 700 West Pender Street Vancouver, B.C. V6C 1G8 Membership Enquiries membership@cbabc.org

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FROM THE PRESIDENT SCOTT MORISHITA

It’s Okay Not to Be Okay

awyers are experiencing mental illness at unsettling levels, and yet many of us are reluctant to seek help. According to the National Study on Wellness in the Legal Profession, 46.8% of legal professionals surveyed felt the need to seek professional help for mental health problems but did not. The study documented several barriers to seeking help. 55.8% of participants told them-

selves their symptoms were temporary and would pass; 37.6% didn’t have the energy to

engage in such a process; 26.3% lacked the time; 13.6% were ashamed to seek help

and 9.2%

were afraid that people around them would find out.

The study’s findings mirror my own experience. In my last BarTalk column, I wrote that I’d been dealing with some degree of undiagnosed depression since my university days, and that my mental health deteriorated during my articles. For months I had considered contacting Derek LaCroix, KC at the Lawyers Assistance Program, but I couldn’t bring myself to do it. There were several reasons why I was so reluctant to seek help. I grew up in a cultural environment where feelings were rarely discussed. I viewed my mental illness as weakness — something that could be overcome if I just worked harder. I felt like I was too busy with work to take the time to seek treatment. Being a closeted 4 BARTALK / DECEMBER 2023

2SLGBTQ+ person also made things more complicated, as I had become extremely private and was unwilling to talk to anyone about my personal life. My greatest fear, however, was that my career would be negatively impacted if people knew what I was dealing with. And so, like many other lawyers experiencing mental illness, I suffered in silence. Fortunately, I did eventually contact Derek. I’m not sure what the exact catalyst was, but I remember realizing and accepting that the problem had become too big for me to solve on my own and without help it was only going to get worse. It took many difficult steps to get to that point. However, the next step — following the advice of professionals to take a medical leave — was by far the most challenging. It was

Sharing experiences is important. It helps us relate to one another and gives us all permission to be vulnerable. the hardest decision of my life, as I thought it would end my legal career. Fast forward to today. The hardest decision of my life ended up being the best decision of my life. My leave lasted 3.5 months. It gave me the time and space to focus 100% of my energy on getting well. I’ll write more

about what I did during my leave and after in a future column, but suffice it to say, taking a leave was the most critically important step in my journey to wellness. We need to talk about these things. Don’t get me wrong — we’ve come a long way in raising awareness of mental illness and reducing stigma. When I was going to law school and articling, there was almost no discussion about mental illness. That’s not the case today. Nevertheless, we must grow this discussion. Lawyers, particularly early career lawyers, need to hear from senior lawyers who have experienced mental illness. They need to know it’s okay not to be okay; that experiencing mental illness does not mean they are not cut out for this profession. And they need to know that they are not alone. Sharing experiences is important. It helps us relate to one another and gives us all permission to be vulnerable. But we cannot stop there. We must also take action. CBABC has created a Mental Wellness Task Force. This committee will review recommendations made by the national study, engage with members of the profession, and identify what CBABC should introduce to support and advocate for members’ mental health. As co-chair of this committee, I welcome your thoughts and feedback.

Scott Morishita

president@cbabc.org

CEO/EXECUTIVE DIRECTOR KERRY L. SIMMONS, KC

Seeking Joy in Difficult Times

henever I used to see a lawyer colleague of mine, he would always ask, “Kerry what are you doing to bring YOURSELF joy?” He didn’t want to hear about my work, my volunteerism, or what I was doing for others, even if those things made me happy. He wanted to make sure I was doing something for me. Me. Not my clients or my friends or my association. His point was that without making sure I was doing something for myself, just for me, I was at risk of burnout or worse. I’ve been thinking about this a lot lately. The world continues to have ever-escalating conflict. There are serious human rights violations. Lives are at stake. There are so many suffering food insecurity and who are negatively impacted by the state of our economy. In our justice system, there are a multitude of problems to be solved. It can be a lot, especially if you are a person who thinks critically, seeks understanding, and wishes for stability. It can be easy to feel overwhelmed or tired. Maybe even hopeless. Certainly not joyful. With the calendar year-end, those in private practice are busy trying to meet their hourly targets and collecting fees. Many are setting expectations for the future. Pressures mount, especially self-imposed pressures. It can be hard to be joyful in those circumstances. Despite all this (and likely so much more you’ve thought about), we can find joy.

In this latter third of the year, we have many celebrations of culture, religion, community and family. Traditions passed from generation to generation. Reflections of commitment, renewal, thanksgiving, and the triumph of good over evil. For many, these holidays or festivals support a connection to joyfulness. Taking this time to focus on those celebrations and to be with family and friends starts to refill the bucket of joy. My wish for each of you is to give yourself permission to refill your personal bucket of joy. It is okay. It isn’t wrong to do that. It doesn’t mean you don’t care about world events, or the inequities in our society. It certainly doesn’t mean you are selfish. You are restoring yourself so you can maintain constructive dialogue,

Whatever you do to bring yourself joy without negatively impacting others is great! work on solutions to problems, look after your family, be a good friend, etc. Whatever you do to bring yourself joy without negatively impacting others is great! Whether that is obsessing over Taylor Swift, re-organizing a cupboard, jamming with a friend, growing a plant,

running every day, or conquering worlds in video games, that’s just fine. Create that little space for just you. Then, keep it going. Fill your bucket of joy to the brim. Let it spill over to your kids, your spouse, your family, your colleagues. That’s how this works. Refilling the bucket of joy might mean you have to put down some other things you might be carrying. Maybe you don’t have to go to every social event of the season. Maybe you get up an hour earlier. Ask for some help to get a job done. Put the monkey on the back of the right person rather than you. You know what I mean. It might be difficult (it certainly is for me), but you will feel better and be on your way to refilling that bucket. My bucket of joy has always been refilled by time with kids. They are the most fascinating creatures and I love watching them figure out the basics of our world. My December is enriched by time with my friends and family as long as I create the space. Challenging as that might be, I know I have to give myself permission to clear the decks for that bucket to be filled. I know you can do that too. Wishing you much joy.

Kerry L. Simmons, KC

ksimmons@cbabc.org DECEMBER 2023 / BARTALK 5

feature

HEATHER MATHISON AND ESRA YACOUT

The Evolving Definition of “Marriage-Like” Relationship

roperty division, governed by Part 5 of the Family Law Act, applies to married couples and to those who have lived in a marriage-like relationship for at least two continuous years. The definition of a “marriagelike” relationship has evolved over the years, challenging traditional norms and embracing the diversity of modern unions. In Molodowich v. Penttinen 1980 CanLII 1537, the court came up with a checklist of behaviours that defined a “marriage-like” relationship. However, in recent years, courts cautioned against a checklist approach and have opted for a holistic approach. The court in Weber v. Leclerc, 2015 BCCA 492, for example, refer to the Molodowich factors as “helpful indicators of the sorts of behaviour that society at a given point in time associates with a marital relationship.” Recent legal interpretations, exemplified in cases such as Han v Dorje, 2021 BCSC 939 and Climans v. Latner, 2020 ONCA 554 showcase a continued departure from traditional conventions and demonstrate that an inclusive and holistic approach is here to stay. Han delves into the territory of online relationships and is emblematic of the changing narrative surrounding marriage-like relationships. Despite the parties having met only once and never cohabiting, and notwithstanding that the vast majority of the Molodowich factors were 6 BARTALK / DECEMBER 2023

not present, the court determined that it was premature to dismiss a potential claim that the parties were in a “marriage-like” relationship. The Ontario Court of Appeal in Climans confirmed that a lack of a shared residence is not determinative of the issue of cohabitation, challenging preconceived notions and highlighting the importance considering the parties’ behaviours. In Climans, despite residing in separate homes, the parties’ intertwined lives, shared vacations, and financial interdependence led the court to define the parties’ relationship as “marriage-like”. THE HOLISTIC APPROACH: NAVIGATING THE GREY AREAS There is no one-size-fits-all for a marriage-like relationship and no definitive classification system for relationships. Indicias that were once necessary for marriage-like relationships to exist are no longer essential factors. For example, the absence of a sexual relationship on its own will not preclude a finding of a marriage-like relationship (see: Smith v. Lanthier, 2017 BCSC 146). Economic dependence or interdependence, while significant, is no longer an essential factor as held by the court in Weber. What is relevant to the definition of a relationship as “marriagelike”? The answer will depend on

the individual circumstances of the parties and evidence will play an important role. The message relayed by recent court decisions is that a holistic approach in determining the nature of a relationship must be applied. As indicated by the court in Weber, the question of whether a relationship is “marriage-like” will come down to the parties’ intentions as well as the objective evidence of the parties’ lifestyles and interactions. Courts will consider the evidence

expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions. In the words of Master Elwood in Han, “the traditional factors are not a mandatory check-list that confines the ‘elastic’ concept of a marriage-like relationship. And if the COVID pandemic has taught us nothing else, it is that real relationships can form, blossom and end in virtual worlds.” As family dynamics continue to evolve, the legal system must adopt a flexible and inclusive approach to ensure equitable outcomes for all parties involved. Heather practises family law and estate litigation at Virgin Hickman. Esra is a lawyer at Richards Buell Sutton LLP.

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CONNOR BILDFELL

A Tradition for Justice: Pro Bono Work

ro bono work has a rich history in our profession. For centuries, legal practitioners have recognized and acted on the moral and societal imperative to help provide legal services to those unable to afford them. This longstanding tradition resonates across different legal and societal contexts, embodying the idea that access to justice is a fundamental right rather than a privilege for the privileged few. This pro bono tradition is something to celebrate. THE POWER OF PRO BONO

The power of pro bono is undeniable. Everyone, no matter their circumstances, should have access to justice. Unfortunately, however, many British Columbians are unable to afford legal representation or access legal services when needed most. Pro bono work — work “for the public good” — has long played a pivotal role in helping to bridge this gap and to promote meaningful access to justice for those in need. The privilege of practising law carries a responsibility to promote justice and make it more accessible. To fulfill this responsibility, many legal practitioners devote substantial time and resources to providing pro bono legal services to those least able to afford them — a tradition that has endured for centuries. This enduring tradition has made a meaningful difference in the lives of countless people. For example, pro

bono work has played a pivotal role in advancing social justice. Legal practitioners acting pro bono for individuals and communities who lack the means to afford their services have helped challenge discrimination, rectify injustices, and achieve fairness — all without any expectation of any financial compensation. This pro bono work has helped shape our society for the better. ENCOURAGING PRO BONO WORK

Over the years, law clinics, pro bono events, and other initiatives have encouraged more legal practitioners to do more pro bono work. For example, UVic’s Law Centre, UBC’s Law Students’ Legal Advice Program, Access Pro Bono’s Everyone Legal Clinic, the Rise Women’s Legal Centre, and others have expanded the reach of pro bono services and provided platforms for legal practitioners to offer their services to those in need. These initiatives have been instrumental in breaking down barriers and promoting access to justice for underserved populations. Access Pro Bono’s “Pro Bono Going Public” campaign illustrates our profession’s commitment to pro bono work. Now in its 15th year, the event has not only increased awareness about pro bono work, but also connected people in need directly with legal professionals. In 2022, the

event saw more than 200 volunteer lawyers provide free legal advice to more than 400 British Columbians in need, and raised more than $135,000 to support access to justice in our province. This initiative and other pro bono initiatives make a real difference on a major scale. Our profession rightly celebrates the pro bono tradition. For example, the CBABC’s Harry Rankin, QC Award celebrates B.C. lawyers who have made outstanding contributions through pro bono work. The Law Society of British Columbia’s Pro Bono Award likewise recognizes lawyers who have made a significant impact through pro bono work. These recognitions not only honour individual achievements, but also encourage more legal practitioners to do more pro bono work. AN ENDURING TRADITION

Pro bono work is an enduring tradition deeply rooted in our profession’s commitment to justice. To be sure, pro bono work is not a complete solution to British Columbia’s access to justice crisis. Other commitments, including a sustained commitment from government to fund legal aid, are needed to make justice more accessible. But our profession’s pro bono tradition is nonetheless an important part of the solution. By upholding this tradition and making it an integral part of our practices, we can continue to make a lasting impact on improving access to justice for people in need. Connor Bildfell is chair of the CBABC’s Access to Justice Committee and a litigation associate at McCarthy Tétrault LLP. The views expressed in this article, and any errors, are his own. DECEMBER 2023 / BARTALK 7

advocacyinaction As the holiday season approaches, we want to express our gratitude to the dedicated volunteers who have been the driving force behind CBABC’s advocacy initiatives. While working hard on the Agenda for Justice 2024, we also have some great accomplishments to share.

RESTORATIVE JUSTICE In September, the Ministry of Public Safety and Solicitor General responded to CBABC recommendations to expand the Community Accountability Program guidelines to include, where appropriate, referrals to restorative justice programs for power-based crimes. The Ministry advised they’re holding consultations and invited further engagement as related initiatives progress. The Restorative Justice Committee organized a webinar, “Restorative Justice in the Legal Landscape,” as part of Restorative Justice Week in November.

JUDICIAL APPOINTMENTS In response to CBABC’s submission urging the Canadian government to appoint justices to the B.C. Supreme Court and re-establish the Judicial Advisory Committee in B.C., the federal Minister of Justice expressed appreciation for our recommendations and noted their continual efforts to improve the appointment process. We are pleased to see progress, including the re-establishment of the JAC and new appointments, and will continue to monitor actions taken.

ARTIFICIAL INTELLIGENCE AND THE LAW CBABC delivered a submission to the British Columbia Law Institute in October in response to their Consultation Paper on AI and Civil Liability, in which we considered their proposals to enhance access to justice through updating tort law. We support applying the negligence framework to address AI-caused harm but caution that limitations of AI technology may disproportionately impact vulnerable populations.

8 BARTALK / DECEMBER 2023

\ EMAIL: ADVOCACY@CBABC.ORG

REGULATION OF THE PROFESSION In October, the Attorney General informed CBABC that the proposed legislation setting out the creation of a single legal regulator has been delayed to Spring 2024. We continue to engage with government, including a meeting with the Attorney General and voice our support for a single regulator model — but not at the expense of preserving lawyers’ independence and self-regulation.

ACCESS TO JUSTICE WEEK The fourth annual national Access to Justice Week took place from October 23 to 27 centred around Canada’s Justice Development Goals. In partnership with Access to Justice BC, CBABC hosted a panel discussion that brought together over 50 lawyers to discuss how B.C. might advance access to justice and meet everyday legal needs (Justice Development Goal #2). Among other things, this panel examined efforts to address legal services gaps, foster innovation and expand the scope of legal aid, including modernization and unbundled legal services. In addition, A2J BC led a panel on the application of the open court principle to virtual hearing processes in the administrative tribunal context. The PD recordings are available on our website. Our Access to Justice Committee is preparing another event for A2J Week BC in February 2024.

ADVANCING RECONCILIATION As legal professionals, it is crucial we understand how the legacy of residential schools has influenced the justice system and work to implement the Truth and Reconciliation Commission’s Calls to Action into our practice. Following National Day for Truth and Reconciliation, we encourage our members to explore our educational resources, including the recently-released A Lawyer’s Guide to UNDRIP, along with our Advancing Reconciliation Series.

Indigenousmatters

MYRNA MCCALLUM

Trauma-Informed Lawyering Will Transform Your Practice

aw school fails to teach future lawyers how to work with people, especially wounded people who are traumatized by the events of their lives or by the systems we call “justice”. This gap in our legal education results in a disservice to our clients, dehumanizes our profession, and disregards the mental health impacts that lawyers experience due to work-related trauma. In becoming trauma-informed and traumaresponsive, lawyers experience better mental health outcomes, increased confidence and improved client satisfaction. They are able to help their clients regulate their emotions and remain connected in moments of pain and fear, and they can identify the impact their clients’ traumas have on their own individual and collective mental health and well-being. Dr. Gabor Maté often says that trauma is a wound. Trauma is not about what happened to us (for example: the car accident, the sex assault, the divorce, etc.) but rather what happened inside of us as a result of what happened to us. As neuroscientists often note, the changes that trauma creates inside of us are evidenced in the brain — specifically in how the brain (over)reacts to stress (amygdala), has trouble managing emotions (pre-frontal cortex), and struggles to recall memories, learn and communicate (hippocampus). Without trauma awareness, lawyers run the risk of helplessly watching their clients crumble, shut down or blow up in a rage in the witness box, deposition or interview. Developing an ability to recognize trauma when it presents as fight (self protection via conflict), flight (self protection from pain via escape), freeze (self

preservation via dissociation), and fawn (self preservation and safety seeking via placation) will better equip lawyers to present credible and consistent witnesses who are “in control” of their emotions. For more on trauma responses, see Pete Walker, Complex PTSD: from Surviving to Thriving. Once lawyers can identify these trauma responses in others and themselves, the work of self-regulation and co-regulation begins. The courageous work of self-regulation necessitates an inquiry into our own personal trauma responses which show up in each of us more often than we realize — including in our interactions with judges, opposing counsel, colleagues and clients who routinely operate from dysregulated states such as fight and flight, as is common across the legal profession. Without this basic level of self-reflection and self-awareness, lawyers will find themselves triggered and meeting rage with rage, silence with silence, and shut down with shut down. When this experience becomes the norm, work-related relationships will become a source of pain, shame and trauma, and lawyers will inevitably confuse their trauma response for their personality. Emotional self-regulation (as opposed to emotional suppression) equips lawyers to manage their emotions and responses so they can remain responsive, rational, clear headed, thoughtful and capable of effective communication. A lawyer’s self-regulation practice benefits their clients,

colleagues and family members in several ways by creating psychological safety for others while also unconsciously co-regulating those who struggle to regulate their own emotions due to trauma, emotional distress or stress. Taking up the practice of traumainformed lawyering requires lawyers to connect to their own humanity and practice with compassion, empathy, psychological safety, humility and respect. The ultimate outcome is a wave of lawyers who will begin to heal their personal traumas while working to avoid doing further harm to others via their approach to legal practice. This transformation is not only individual, but collective, as our justice and legal systems immediately benefit from the heart, healing and humanity lawyers bring forth into the profession. The critical skills underpinning this approach to practice can be learned over time via training on emotional intelligence, workplace boundaries, cultural humility, self-regulation for hostile work environments, workplace psychological safety and a variety of complex trauma healing modalities. Trauma-informed lawyering will transform your practice by creating authentic, empathetic, compassionate and psychologically safe legal experiences and workplaces. And who doesn’t need that? Myrna McCallum is the host of “The Trauma-Informed Lawyer” Podcast. w: myrnamccallum.co t: @theTILpodcast IG: thetraumainformedlawyer DECEMBER 2023 / BARTALK 9

guests

CLARE JENNINGS, KC AND HASAN ALAM

Anti-Racism in Action

Difficult conversations and meaningful work

n the autumn of 2021, a collective of individuals from CBABC, including the Aboriginal Lawyers Forum, the Canadian Association of Black Lawyers– BC, the Federation of Asian Canadian Lawyers, and the South Asian Bar Association convened, which has since evolved into our regular gatherings over the past two years. Our primary objectives were straightforward: to enhance communication and collaboration among our organizations and to jointly develop an anti-racist initiative tailored to the legal community in British Columbia. Our intentions were rooted in goodwill and shared values. Many of us had previously crossed paths and collaborated on various projects. Our unwavering commitment rested in the realms of anti-racism, equality, diversity and inclusion — all underpinned by our dedication to collaborative efforts. We were all actively engaged in other Equity, Diversity and Inclusion (EDI) initiatives, both within more comprehensive, intersectional groups and within more specialized, focused cohorts. Our collective intention in forming this collective was to direct our energies toward matters of racial justice and to chart a path forward in this distinctive domain. We came prepared to engage in meaningful work. However, we soon recognized a fundamental truth that should be evident to us all: the importance of dialogues surrounding words and terminology. The language we employ, both in self-reference and in discussing our shared objectives, carries profound significance. Language possesses the power to foster inclusion or exclusion, to amplify voices or silence them, and 10 BARTALK / DECEMBER 2023

to empower or marginalize individuals. In essence, the noblest of intentions remain hollow without the conscious acknowledgment of each other’s experiences, particularly those related to personal and systemic racism, and the active effort to prevent the perpetuation of harm in our interactions. We embarked on a quest to gather resources to inform our conversations, and we engaged in candid discussions among ourselves. These discussions revolved around how we perceive ourselves, the language we employ to define our identities, and the reasons why these choices hold profound significance to us. These conversations were often not easy, even though we came to them with extensive experience in EDI work and with the best of intentions. We each were called upon to consider our own thinking, our modes of conversation, and often subconscious biases. We have been successful in having these conversations and in continuing to work together because we brought goodwill, good faith, and real commitment to the work. In forthcoming issues of BarTalk, you will find contributions from members of our group who have chosen to share their personal experiences. Our aim in doing so is to provide readers with insights, stimulate contemplation, and ideally serve as a catalyst for similar discussions in their own lives. However, it’s imperative to underscore that our experiences should not be regarded as universal truths, even for those sharing similar

racial or ethnic backgrounds. Our objective is to initiate conversations, not to propose simplistic solutions. We have assembled a collection of supplementary resources for further reading that may pique your interest: Racial Justice, Racial Equity, and Anti-Racism Reading List Racial Equity Tools Glossary Being Antiracist San’yas Indigenous Cultural Safety Training Program Cultural Safety: Respect And Dignity In Relationships Allyship

We extend an invitation to you to watch this space in forthcoming issues for dialogues on our encounters with racial injustice and our endeavours to combat it. We encourage your active participation in these discussions, whether with us or in your personal circles. Recognizing that racial injustice persists in various forms, both large and small, is the first step. Combating it requires open and authentic conversations with one another. This article is part of a 4-part series on issues CBABC members face as BIPOC lawyers. Clare Jennings, KC, is a past president of CBABC and passionate about equality, diversity and inclusion. Hasan Alam is a Labour and Human Rights lawyer, a past president of the Federation of Asian Canadian Lawyers of BC, and an advocate for greater equality and inclusion in the legal profession.

communitynews

TIPS FROM

Legal Credentials: From Parchment to Pixels

In 1856, the Court of Buckingham Palace’ Order in Council signalled the beginning of the legal profession in what would become British Columbia. The colonial Supreme Court of Civil Justice of “Vancouver’s Island” was empowered to admit barristers, solicitors, proctors and writers of the signet from the UK and Ireland. When Henry Pering Pellew Crease, Esq. became the first barrister in the colony in 1858, there were no formal Rolls to sign. By 1884, the Colonies of British Columbia and Vancouver Island had only 37 barristers and solicitors. Fast forward to 2023, the Law Society of BC has taken over from His Royal Highness Prince Albert, and evolved its own methods for licensing its roughly 13,000 members. After 150 plus years of paper-based certifications, a new system of digital credentials has arrived. Law Society digital credentials are stored in a custom BC Wallet App on smartphones. And combined with your Service BC digital credential, it offers striking benefits. Streamlined access to digitalized court records, including DARS audio, is now at your fingertips. And because your identity and professional status are digitally vetted, you can use the app to sign undertakings and gain far deeper access than via Court Services Online alone. Log into the Law Society’s Member Portal to get your digital credential, then go to justice.gov. bc.ca/dars/pre-vc-auth/ to get access. Courthouse Libraries BC is also integrating digital credentials, and their plan is for Law Society digital credential holders to access remote subscription databases seamlessly, unlocking a trove of eBooks, law journals and more.

DECEMBER 2023 / BARTALK 11

guest

DIMPLE KAINTH

Embracing Equity, Diversity and Inclusion: The Need to Transform

he legal profession, the voice of justice and equality, continues to face a significant hurdle: a notable lack of diversity. This is not simply a moral issue but hampers the effectiveness and adaptability of legal institutions. The calls for Equity, Diversity and Inclusion (EDI) grow louder, and it is necessary for law firms to transform and modernize to reflect the diverse society they serve. WHAT IS EDI? “Equity” ensures everyone has access to the same opportunities and advantages, while acknowledging that individuals may require different types of support to achieve success. “Diversity” recognizes and appreciates the differences among individuals, including race, gender, ethnicity, sexual orientation, socioeconomic status and other distinguishing characteristics. It also recognizes the intersectionality, or overlap, of these differences. “Inclusion” creates an environment where everyone feels valued, respected and empowered to contribute. These are not just buzz words. They are essential elements for the success and sustainability of law firms. WHY DOES EDI MATTER? Innovation and Creativity: Diverse

teams bring a variety of perspectives, experiences and ideas to the table, leading to innovative solutions and creative problem-solving, enhancing the firm’s overall performance.

Client Representation: Clients have

diverse backgrounds, and a legal team reflecting this diversity supports better understanding and representation. Clients are more likely to trust and

12 BARTALK / DECEMBER 2023

engage with firms that understand their unique needs and perspectives. Legal Compliance and Risk Miti-

gation: Law firms must comply with anti-discrimination laws. Embracing EDI helps with legal compliance, mitigating the risk of lawsuits and reputational damage.

Talent Acquisition and

Retention: Embracing diversity makes law firms more attractive to a broader talent pool. When employees see commitment to EDI and experience the results, they are more likely to stay.

WHAT DOES EDI LOOK LIKE? Law firms must go beyond mere visibility and statistics and implement policies integral to the firm’s culture. Some things to consider when developing effective policies include: Representation at All Levels: True

equity requires representation at all levels. This means having diverse partners, associates and staff members. Initiatives such as mentorship programs and targeted recruitment can help achieve this.

Inclusive Policies and Practices: De-

veloping and implementing inclusive policies, such as flexible work arrangements and unbiased recruitment processes, is vital. These policies help ensure that all employees feel included and supported.

Training

and Education: Providing training on anti-racism, unconscious bias, cultural competence and diversity awareness is essential.

Educating employees about the importance of diversity fosters a more inclusive workplace. Employee Affinity Groups (EAGs):

Establishing EAGs focused on various dimensions of diversity provides a platform for employees to connect, share experiences and offer support. EAGs can also advise the firm on EDI initiatives. Accountability: Law firms should es-

tablish clear metrics to measure progress in EDI efforts. Holding leaders accountable for promoting diversity and inclusion ensures that these principles are not just lip-service but rooted in the firm’s culture. Developing and implementing EDI policies requires long-term commitment and is a complex and challenging process. It requires people to learn about their own biases and change. It also requires open and honest discussions about personal experiences with racism, microaggressions and differential treatment. This will be difficult, but these are necessary steps to becoming a truly equitable, diverse and inclusive workplace. The legal profession is at a crossroads, faced with the choice of maintaining the status quo or starting a transformative journey toward real diversity. By fostering a true culture of equality, law firms can attract top talent, improve client relations and enhance innovation. Properly implementing EDI policies is a necessity for law firms to create environments where everyone feels included and has an equal opportunity to succeed, and to modernize to remain relevant in serving an increasingly diverse and dynamic society. Dimple Kainth is the principal of Satya Law and Sayva Consulting. She is also a member of CBABC’s EDI Committee and has authored this article on its behalf.

guest

AISHA NAVEED

The Glass Ceiling and the Unique Challenges That Women Face

Rania

Llewellyn became the first woman and person of colour to lead a major Canadian corporation as the CEO of Laurentian Bank.

Linda Hasenfratz, CEO of Linamar

Corporation. WHAT IS THE GLASS CEILING?

he term “glass ceiling” is a metaphor for obstacles that women face when striving to move upward in the workplace.

What this really means is there are more opportunities for women entering the workforce at lower levels in an organization than higher levels. WHAT IS IT THEN THAT HOLDS WOMEN BACK?

From 1991 to 1996, through The Glass Ceiling Commission, the US Department of Labor studied how it affected women and minorities in the workforce. In 1995, the commission found that white men held most management positions in corporations, and that the workforce was divided, with women and minorities accessing fewer leadership opportunities. MY PERSONAL EXPERIENCE

The level of education, social skills and ability to work in a competitive environment is not what prevents women from advancing. Women continue to be high scoring, high achieving individuals. There are two words that come to mind… “Unconscious Bias.” As a woman of color, I have always found that men and women who are not of colour are very dismissive of my voice. I always have to be louder, funnier. It is exhausting. I have often heard comments after winning a court application or getting a desired result on a file: “You’re actually really articulate.”

“You’re actually really good at what you do.” If you have ever made those comments to me or anyone alike, do better. I have too many personal experiences to share, but the most recent one that comes to mind is when I was interviewed by two white men from a downtown law firm for an associate position. Everyone who knows me knows I have an easy-going personality and (I think) I have a pretty good sense of humor. I generally interview well. So, on this occasion, the two men decided that they knew me. The first thing that they said to me was, “We don’t do legal aid, so if people in your community expect that, it’s a no.” I shrugged it off, but they continued to downplay my achievements, which was the worst part. The examples are uncomfortable to mention so let’s not go there. I don’t want to embarrass anyone — you know who you are. Let’s do better. SURELY THINGS HAVE CHANGED BY NOW?

Yes, women are playing a bigger role in Canada’s corporate boardrooms, but new statistics from Ottawa show they still have a long way to go. Statistics Canada looked at more than 10,000 public, private and government corporations and found most of their boards of directors were composed entirely of men in 2016 and 2017. Examples of women in Canada who are breaking through the glass ceiling in the corporate world:

Heather Reisman, CEO of Indigo

Books & Music. WHY DO WOMEN FACE CHALLENGES? THE ACTUAL TRUTH

The truth is that men and certain women (this is true from personal experience) see women as a risk and liability. She’s going to get married. She’s going to get pregnant. She can’t put in the same hours a man can. In the corporate world, women are still viewed as “soft” and viewed by men as not willing and ready to have a cut-throat attitude in the workplace. WHAT NEEDS TO CHANGE?

Women who are already in leadership roles, should support women in the workplace, that is a no brainer, but the reality is that men need to step up. Men who hold such roles, need to be willing to accept change. Promote diversity and inclusion. So, this doesn’t mean making superficial comments and posts about how your company is all about EDI. This means actually supporting people of all different genders, races and other characteristics. Let’s support women owned businesses to show growth in the economy for those businesses. Lastly, those experienced professionals who have shattered the glass ceilings can offer support and guidance to those wishing to pursue more in their careers. Aisha Naveed is a lawyer at Jiwa Law Corporation. DECEMBER 2023 / BARTALK 13

sectiontalk Making Connections this Fall CBABC Sections have been busy making connections and sharing knowledge this fall. Don’t miss out on these opportunities to connect with members in your practice area. Update your Sections enrollment and bookmark our Programs & Events Schedule to get the latest information!

WLF FALL LAUNCH The Women Lawyers Forum hosted their annual networking event, “Hot Tips from Top Mentors.” The Honourable Justice Baljinder K. Girn from the Supreme Court of British Columbia, Cheryl D’Sa of Narwal Litigation LLP, and Sandeep Mann from Fraser Health Authority engaged in meaningful conversations about what it means to be a great mentor. The distinguished panel shared tips from their journeys through the legal profession. Attendees asked questions and mingled with colleagues.

PERSONAL REPRESENTATIVE IN ESTATE LITIGATION This popular Wills & Trusts Section meeting brought together over 150 attendees to learn about the scope and limitations of the personal representative. Panel speakers Rebecca M. Morse and Rachael Breeze, Farris LLP and Vivian Ho, Fasken reviewed a case comment on the recent Court of Appeal decision Tom v Tang, 2023 BCCA 221.

14 BARTALK / DECEMBER 2023

CHANGES TO THE WORKERS COMPENSATION ACT The Employment Law Section and Human Rights Law Section came together to share upcoming updates on the B.C. Workers Compensation Act with almost 200 attendees. The Human Rights Section covered the scope of enforcement under the new provisions, and how the changes will impact other decision makers like the Human Rights Tribunal. Employment Law Section members heard about the tort of harassment and claims for failure to accommodate.

MONTE CARLO NIGHT The Young Lawyers – Lower Mainland and Business Law Sections partnered with Chartered Financial Analyst Society Vancouver and Chartered Professional Accountants BC for their annual Monte Carlo Night at the Vancouver Club. Over 100 attendees enjoyed the sweet sounds of Jonny Tobin, a multi-award-winning keys player, while mingling over great food and fun-filled casino games. Attendees could donate clothing in support of two local charities, Working Gear and Dress for Success, who provide industry-appropriate clothing to people in need. Missed out on useful meetings? Catch up on Section recordings to complete your CPD credits for free!

\ EMAIL: SECTIONS@CBABC.ORG

CBABC CONSTRUCTION LAW SECTION WELCOMES NATIONAL COLLEAGUES TO B.C. by Seema Lal, Construction Law Chair and Andrea Grey, Construction Law Vice-Chair

The BC Construction Association reports $157B in current construction projects in B.C., which is up 109% over 5 years. With all the recent industry activity, Vancouver made the perfect location to host the CBA National Construction and Infrastructure Conference this October, after a five-year break. Practitioners across Canada gathered to discuss jurisdictional updates, trends in dispute resolution and emerging technology. The keynote from The Honourable Justice Thomas A. Cromwell, C.C. highlighted a focus on outcomes, not just legal process. Doug Sanders of BLG (Vancouver) was recognized with the CBA Award of Excellence in Construction and Infrastructure Law. The CBABC Construction Section also held two hybrid meetings this fall. In September, Ali Fard of Ankura explored delay analysis in “The Dark Arts of Delay.” In November, Section members heard the latest on builders lien legislation and case updates from Marc MacEwing of Clyde & Co LLP and Seema Lal of Singleton Urquhart Reynolds Vogel LLP. The Section Executive are working on more meetings for 2024. Enroll in the Section for the latest updates.

SENIOR COUNSEL LEARN THE LATEST IN TECHNOLOGY TRENDS by Adrienne Atherton, Senior Counsel Co-Chair and Karen Liang, Senior Counsel Past Chair

The Senior Counsel Section got off to a great start this October with a well-attended meeting on generative AI. Ryan Black, an IT legal expert and partner from DLA Piper LLP spoke to almost 150 members about how emerging generative AI models are revolutionizing legal research, legal drafting and client interactions. Combining expertise from his background as a former software developer, Black emphasized the transformative power of AI, but cautioned lawyers about the ethical challenges and biases accompanying such technology. Upcoming programs from this Section include a presentation on December 5th, “Microsoft Word — Tips for Working Smarter,” where Jade Buchanan, McCarthy Tetrault teach members how to use Microsoft more effectively. Learn more about the Senior Counsel Section mandate and recent meetings.

DECEMBER 2023 / BARTALK 15

feature

BRANDON D. HASTINGS

Its application to the multifaceted web of a multigenerational household — with its increased number of interpersonal dynamics — is somewhat conceptually strained, and practically quite cumbersome.

contours of family life. While case law continues to evolve incrementally, the question of whether it can keep pace with the rapid transformation of family structures looms large. It may be that only legislative reform can fully address the unique challenges posed by cases like Sidhu and Judge, providing a framework that can accommodate the diversity of modern familial relationships without sacrificing the principles of equity and fairness.

The families in Sidhu and Judge, like many others, may navigate their relationships through a lens of cultural norms and expectations that do not always align neatly with the principles of Western jurisprudence. This can lead to outcomes where the applied remedies, though equitable in legal theory, may not resonate with the participants’ sense of justice and fairness as understood within their cultural context.

In the meantime, legal practitioners must navigate these waters with sensitivity and awareness, recognizing that the fabric of family life cannot always be neatly tailored to fit within the existing legal paradigm. It is through such professional diligence and a collective push for systemic change that the legal traditions will evolve to reflect and respect the rich tapestry of Canadian family life.

The long-term consequences of failing to address the disconnect between evolving family dynamics and the current legal framework can be profound. Families may find themselves ensnared in litigation, battling over assets and contributions that they never anticipated would be dissected by the cold logic of the law. This not only strains the families involved, but also burdens a court system in attempting to grapple with such deeply personal and complex matters.

In conclusion, while cases like Sidhu and Judge may present as anomalies, they are harbingers of a broader trend that demands our attention. The evolution of legal traditions is not just a theoretical exercise; it is a necessary response to the living, breathing realities. As the Canadian family unit continues to evolve, so too must our legal frameworks, ensuring that they serve justice in a manner that is both culturally sensitive and equitable.

Family Law and Legal Culture

Family ventures and multigenerational housing

n the fluid landscape of Canadian family law, courts are increasingly confronted with cases that challenge traditional legal constructs. The evolving nature of family units is exemplified in cases like Sidhu v. Sidhu, 2023 BCSC 449, and Judge v. Judge, 2015 BCSC 1764, both of which grapple with the complexities of multigenerational households engaged in intricate financial and familial interdependencies. Sidhu concerns spouses whose 23-year relationship was spent in intimate quarters with a husband’s parents. In Judge, a similar narrative unfolds, where the spouses’ lives are deeply integrated with their extended family. In both cases, the families’ financial and personal affairs were deeply interwoven, involving shared responsibilities for children and combined efforts in family businesses, deviating markedly from the independent economic units presupposed by the Family Law Act. The jurisprudence around these cases has framed such arrangements as “joint family ventures.” This designation calls for an assessment through the prism of unjust enrichment, aiming to rectify imbalances that an uncritical application of traditional asset division would generate. However, the notion of a joint family venture, which was developed in the milieu of the nuclear family, sits uneasily on these multilayered relationships. 16 BARTALK / DECEMBER 2023

Looking forward, it’s imperative that the legal system begins to adapt more dynamically to the changing

Brandon Hastings (he/him) (bhastings.com) wrote this article from New York City, where he is on sabbatical from Cassady & Company, studying at Cornell Law School for an LLM in Law, Technology and Entrepreneurship.

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AMRIT RAI

Partner arai@zsa.ca (604) 283-9317

MIKE RACE

Managing Partner mrace@zsa.ca (604) 283-9316

SARA ADEL

Recruitment Consultant sadel@zsa.ca (604) 283-9318

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DECEMBER 2023 / BARTALK 17

Indigenousmatters

STEPHANIE KONEFALL

Indigenous Law Shifting perspectives

n Act respecting First Nations, Inuit and Métis children, youth and families (Federal Act) and the Declaration on the Rights of Indigenous Peoples Act (Declaration Act) helped usher in rapid change in the application of Indigenous legal traditions and decision-making processes found increasingly embedded in child and family legislation. These laws furthered Indigenous legal mechanisms as a means to legal remedies for Indigenous children, requiring collective responsibility to re-examine child welfare legal services to uphold Indigenous selfdetermination. As Nations develop their own Indigenous laws that will intersect with provincial authority and the courts, and in some cases, remove provincial authority altogether, the legal field finds more cases that intersect with Indigenous laws and ways of knowing. Reviewing key worldview shifts can aid in navigating these merging worldviews.

structure used to make decisions about children and families as a collective activity governed by protocol and oral laws to maintain the functioning of families and communities. Fundamentally, this differs from a focus on the child alone and emphasizes a focus on community continuity. For over 30 years, Carrier Sekani Family Services and the member communities have worked to find the means to translate Carrier principles into written legislation. The mechanisms provided for in the Federal Act and the Declaration Act provide this opportunity.

Indigenous child and family laws as written legislation are a novel structure. According to Matriarchs and Elders, the laws of Indigenous people about children and families are held up by oral narratives, protocols and governance structures based on perspectives of a child’s holistic wellness, not exclusively of their safety in the contemporary context.

Bringing Indigenous traditions into child and family legal processes compels a shift of perspectives. This can be characterized by redefining understanding; value, and practice from an Indigenous legal perspective. Understanding can be defined as a deep recognition of the purpose of the Indigenous law and an awareness that Indigenous laws over children and families are more than a justice perspective governing the safe care of children. Understanding compels a different effort to the use and application of Indigenous child and family laws, it requires an effort of interpretive context of the Indigenous law’s purpose.

By example, the structure and decision-making processes of the Carrier and Sekani people of North Central British Columbia are in the Bah’lats system. According to internal documents by Carrier Sekani Family Services, the Bah’lats is the

Value must be defined as more immersive than a guiding principle. For many Indigenous child and family laws, the best interest test is interpreted through the collective belonging of a child to a community through a family structure.

18 BARTALK / DECEMBER 2023

By example, according to the published Rights of Cowichan Citizens, for the Cowichan people, the value of the child is illustrated through the belief that “Family is the Heart of Life.” Children, Smunèem` are the heart of families. Redefining value in this context within a legal matter compels the weight of the family togetherness in the best interest test, a value required by the Federal Act. The Indigenous tradition of locating a child as an integral (heart) of the family and community system can be seen in many developing Indigenous child and family laws. Finally, a redefinition of legal practice, including a shift to consider how to hear the voice participants (including children) involved is integral. Western law systems identify roles exclusive of each other; lawyer, parent, advocate, etc., without taking into consideration the Indigenous worldview incorporating the equal importance of each voice collectively in decision-making. Structurally, many Indigenous laws are being drafted with the equality of shared voice and collective decision-making. This consideration compels all members within the legal system to consider their roles from a non-hierarchical perspective and toward one of collective responsibility from their area of expertise. Stephanie is an Indigenous child-welfare governance and practice expert, child protection mediator, director and educator in Indigenous Child Welfare.

communitynews Legal Pluralism and the Evolution of Laws in B.C. by Megan Vis-Dunbar

B.C.’s Crown laws have begun to evolve in response to B.C.’s 2019 Declaration on the Rights of Indigenous Peoples Act (Declaration Act).1 This reform of B.C. laws is required to bring them into alignment with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), a comprehensive articulation of Indigenous Peoples’ inherent individual and collective rights. UNDRIP recognizes the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world,”2 and the Declaration Act affirms the application of those principles to B.C. law. Law reform supporting implementation of UNDRIP can be approached in several ways. One key path, and the path highlighted in the Declaration Act Action Plan, is grounded in legal pluralism.3 BCLI’s Reconciling Crown Legal Frameworks Program aims to support the recognition of Indigenous jurisdiction alongside Crown laws. A legal pluralist approach is a powerful means to conceive of this new legal landscape and one that that will build respectful relationships between distinct systems of law. Legal pluralism exists where multiple systems of law operate alongside and in dialogue with one another. It describes the existence of two or more legal systems in the same social or geographic space. This framework has always existed in Canada’s Crown legal system and can help us to understand how the relationships between these systems exist and evolve. B.C.’s Action Plan points to the legal pluralist arrangements in cooperative federalism as reflecting the model for working relationships between Indigenous governments and the province.4 Cooperative federalism within Canada’s constitutional framework accommodates overlapping jurisdictions in a flexible way, encouraging intergovernmental cooperation within a dynamic relationship over a strict adherence to exclusive spheres of power. This dynamic relationship means that it does not override the jurisdiction of either level of government.5 Cooperative federalism is an intentional approach to the coordination of powers between Crown governments, and is a judicial approach to legislative interpretation that seeks harmonization of overlapping jurisdictions, not conflict.6 It provides a framework within which intergovernmental relationships interact and evolve. It is an effective model for conceiving new ways of integrating Indigenous legal perspectives into Crown laws. While Indigenous law and governance may be new concepts for Crown lawyers, the recognition of multiple legal orders in our law has always existed. BCLI is committed to recognizing Indigenous jurisdiction in line with UNDRIP and supporting the corresponding evolution of Crown legal frameworks. SBC 2019, c 44. UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, Article 43. 3 British Columbia, Ministry of Indigenous Relations and Reconciliation, Declaration on the Rights of Indigenous Peoples Act Action Plan, 2022-2027 at 6 [Action Plan]. 4 Action Plan, supra note 3 at 10. 5 Reference re Impact Assessment Act, 2023 SCC 23 at para. 122. See also Reference re Securities Act, 2011 SCC at para. 57. 6 See Scott A. Carrière, “The Emergence of a Normative Principle of Cooperative Federalism and its Application” (2021) 58:4 Alta L Rev 897 at 900. 1

DECEMBER 2023 / BARTALK 19

BRITISH COLUMBIA

LEGAL CONFERENCE PRIVACY LAW 2024 Sutton Place Hotel, Vancouver January 26

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guest JOHN LAKES

When Stuff Happens

Assistance Program — an organization that provides counselling services for lawyers and their families;

TELUS Health One provides free,

s lawyers, we all prepare for deadlines, completion dates, limitation dates, check lists, etc. to keep our life in order. If all of sudden a law partner has a critical disease, accident or dies, you must immediately deal with a situation you have not prepared for. While you are dealing with the grief of yourself and of your firm, you still have a law practice to run. You must do everything you can do to assist the lawyer and their family. What to do:

Contact

the clients and advise them of the situation;

Contact

the opposing lawyers and the courts.

THE BUSINESS OF THE OFFICE Contact banks (banks hate surprises); Review the “cash” situ-

ation, including shorttime and long-term cash in-flow and outflow, payroll, federal remittances, GST, PST and fixed payments;

confidential, 24/7 support for various issues faced by lawyers and their families.

OTHER SOURCES OF HELP CBA (BC) Benevolent Society: This society exists to respond to a

crisis in a lawyer’s or articled student’s life and to provide emergency funding as a measure of dignity to the lawyer and their family; This society’s main mandate is to assist living lawyers, however a family of a deceased lawyer may apply for financial assistance to make the final arrangements for the deceased lawyer.

Review the Partnership

YOUR STAFF Try to keep the staff informed as

much as possible about the lawyer. Have only one informed source of the lawyer’s health;

Give

the staff as much time as possible to deal with their shock and grief;

Discourage

Google Doctors and people telling their own experiences.

THE LAWYER’S FILES The

lawyer’s files need to be reviewed as soon as possible;

Organize the files: Determine the urgent files — time

limits, undertakings, court dates, completion dates, BFs; Review

fee agreements, contingency agreements, etc.;

Determine

Lawyers

who to assign the

files to; You may need to refer the files to

an outside lawyer if you do not have the time or the skill; Review trust funds, work in prog-

ress and account receivables;

Agreement; Review

contracts, including office leases, equipment leases and any other fixed contracts;

Review all firm insurance policies,

including disability insurance and life insurance for both the lawyer and the firm. Determine the timeline to receive funds from any of the insurance policies. THE LAW SOCIETY OF BC Advise the Law Society of BC that

the lawyer has passed; Contact the Practice Advisor Office

if needed; Call a Bencher if needed; There are many Practice Checklists

on the Law Society of BC website. They are very helpful, for areas of law which are alien to you;

The

Law Society has created the “Lawyers Well-Being Hub” on their website, which includes access to resources, including:

Another lawyer:

There is a lot of good will in the

legal profession. Call another lawyer if you need help. Most lawyers will assist you.

AREAS TO IMPROVE When a member passes away, there

is only limited funding available for a family of a deceased member;

Neither

the Lawyers Assistance Program nor CBA (BC) Benevolent Society are able to issue tax receipts for donations. If lawyers could donate to either society and receive a receipt, both of these organizations will be able to help more lawyers. If lawyers do not help lawyers, no one else will.

LOOK AFTER YOURSELF Everyone needs you — the lawyer’s

family, your firm and your family.

John Lakes is a partner at Lakes, Whyte LLP. DECEMBER 2023 / BARTALK 21

guest

JIM WU

“Simple Tricks” to Make our Bar More Equitable, Diverse and Inclusive Jim Wu is the 2023 CBABC Equity, Diversity and Inclusion award recipient. This is the speech he gave at the CBABC Provincial Council Meeting Awards Luncheon.

“

Like a lot of people here today, in Grade 10, I read Harper Lee’s To Kill a Mockingbird and that novel introduced me to Atticus Finch who has been heralded by many to be “the role model” and a “paragon of honour” for lawyers. What separated Atticus from the other lawyers was his ability to employ “empathy” which he describes to his daughter, Scout as a “simple trick” whereby you go into someone’s skin and walk around in it to understand them better. Now putting aside the fact that the process of empathy is anything but a “simple trick”, Atticus’s demonstration of empathy is a little flawed in the sense that it appears to discount completely the role that the individual whose skin you want to enter plays in that process. Given that the human skin has an area of 22 square feet or the area of a walk-in-closet, there is a lot of space for you to traverse and unless you have that other person guiding you, you will never be able to find much understanding by descending into their skin. The same can be said with respect to that of diversity, equity, and inclusion policies. You can have an entire 22 BARTALK / DECEMBER 2023

class of summer students consisting entirely of BIPOC law students, but in the end, if you do not provide them with sufficient mentorship to identity what they want to do and how they personally can become a meaningful part of your firm, then they will leave, and you will have lost yourself an entire class of brilliant lawyers. I could go on but as I understand that I only have 3 minutes, I will conclude by giving the following three pieces of advice: For those lawyers who have never hired a BIPOC lawyer and/or a lawyer with a disability, what is pre-

For those lawyers who are BIPOC and/or have a disability, never see your identity as a hindrance to your career or to life in general. Be proud of who you are. venting you from doing so? By not hiring that demographic, you are losing out. And here is why: by hiring a BIPOC lawyer and/or a lawyer

with a disability, you are hiring someone who has experienced on a daily basis, adversity and that daily exposure has given them an enormous amount of resilience which will transform to long-term hard work and loyalty, but only if you make it sustainable for that person. For those lawyers who have BIPOC lawyers and/or a lawyers with a disability on their team, continue the beautiful work you are doing and involve those lawyers into greater roles and responsibilities so they can reach their full potentials and feel that they belong. And finally, for those lawyers who are BIPOC and/or have a disability, never see your identity as a hindrance to your career or to life in general. Be proud of who you are. At the same time, be mindful that you are also agents of the law and exercise profound power to shape our society and make our society much more diverse, equal, and inclusive. Thank you CBABC for your recognition and keeping me and others inspired in the long quest for inclusion within the Bar.” I appreciate the opportunity to publish the remarks I delivered at the CBABC AGM. For further information about diversification of our Bar, I recommend the work of Federation of Asian Canadian Lawyers BC, in particular their award-winning documentary “But I Look Like a Lawyer” available at faclbc.ca/documentary. Jim Wu is an employment lawyer with Forte Workplace Law.

professionaldevelopment \ CBABC.ORG/EVENTS

BRITISH COLUMBIA

LEGAL CONFERENCE

Advance your career and stay current in your practice area. BC Legal Conference shares the latest updates in substantive areas of law.

Privacy Law 2024 January 26 | Vancouver

The use of generative AI, forensic genealogy and aggregated data have introduced new privacy concerns. The recent Anti-Racism Data Act raises questions on how to meaningfully implement equity, diversity and inclusion with privacy in mind. Privacy Law 2024 offers seven educational sessions and 6.25 CPD hours, including a keynote presentation by Michael McEvoy, B.C.’s Information and Privacy Commissioner. Register cbabc.org/privacy >

Immigration Law 2024 March 15 | Vancouver

Get the latest insights on pathways to permanent and temporary residency so you can better assist your clients. Connect with colleagues and earn 6 CPD hours over a full day of programming that covers topics like strategies for work permit applications and best practices on judicial review. Register early to receive the early-bird rate. Register cbabc.org/immigration >

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Practice Management Series Start your year strong with a new series focused on the essentials for running an efficient practice.

January 31 February 14

Lawyers as Employers Strategies for Powerful Writing

Bank your CPD credits The deadline to meet your required 12 CPD hours is December 31. CBABC offers a wide choice of on-demand webinars you can access anytime, anywhere. Catch up with our latest Advancing Reconciliation or Career Starter Series. Visit CBABC On-Demand to see what’s available!

DECEMBER 2023 / BARTALK 23

practicetalk DAVID J. BILINSKY

Changing Approaches to Legal Traditions New considerations for old principles r I’d say an ounce of prevention Is worth a pound of attention span... r — Music & Lyrics by K. Hearn, S. Page, E. Robertson, recorded by the Barenaked Ladies.

ne of the oldest legal traditions has been the duty of confidentiality owed to a client. In today’s world of constantly evolving change, this duty has come under unprecedented attack, as illustrated by the rising level of cyber incidents targeted against law firms. These cyber attacks take many forms, but they engender the need for firms of all sizes to have in place measures designed to prevent attack, guard the firm’s data from being hacked, stolen or exposed, and allow the firm to quickly respond to an attack in a comprehensive and secure manner. A cyber response plan together with having your systems hardened to the point where they can repel an attack are both requirements today. How bad is the problem? A survey, conducted by Blake, Cassels & Greydon in 2020, showed just over half of Canadian organizations hit by ransomware last year paid cyber criminals to get decryption keys for restoring scrambled data. Cyber defences start with technological competency. Cyber security is not solely about hardware and software. It starts with having all users coming up to speed on the role that they, as carbon-based processors, play in opening up the silicone-based systems to attack 24 BARTALK / DECEMBER 2023

and repelling them in the first place. According to the American Bar Association’s (ABA) 2022 Legal Technology Survey Report, 75% of all respondents reported having some type of technological security training available at their firm. Cybersecurity for Law Firms: What Legal Professionals Should Know, published by the ABA, states: In the 2021 Verizon Data Breach Investigation Report, phishing was present in 36% of breaches. Other reports show that over 90% of cyber attacks begin with a phishing email and more than 97% of users cannot recognize a sophisticated phishing email. Clearly having users recognize and stop phishing attacks is an important first step. Once awareness has been raised, the next step would be to put into place your firm’s technological policies, that codify what is and what is not, the proper use of the firm’s IT resources. This would include your written cyber incident response plan to be used in the event of an incident. The Blake’s report noted that: “Only 29% of organizations that suffered a cyber incident had an effective incident response plan that they followed.” Next would be to put into place your security tools, including firewalls, password managers, anti-malware,

anti-spyware, email encryption and scanning. One important component would be a zero-knowledge, encrypted file storage service such as sync.com. This is a Canadian product that backs up your data in the cloud in a manner that only you have the ability to decrypt the data, hopefully rendering it impervious to a ransomware attack. Have an expert conduct a regular cyber assessment of your systems and policies to ensure that all is working as it should and that you can recover your data in the event of a breach. Lastly, assess your cyber insurance coverage and benefits. LIF offers cyber insurance and cybersecurity coverage, including security monitoring and alerts, security services and training through Coalition, Inc. When it comes to protecting the time-honoured tradition of solicitorclient confidentiality, it is good to know that an ounce (err, millilitre?) of prevention is worth a pound of attention after the fact. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members. David J. Bilinsky is the principal of Thoughtful Legal Management, a technology and practice management consultancy and is the former Practice Management Advisor, Law Society of British Columbia. Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

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DECEMBER 2023 / BARTALK 25

guest

REBEKA BREDER

Changes to B.C.’s Family Law Act Include Pet Custody Provisions

n January 15, 2024, British Columbia will make history by bringing into force the first legislation of its kind in Canada that contains specific provisions dealing with pet custody disputes, under the Family Law Act, S.B.C. 2011, c. 25. Starting in 2022, I made submissions to government that contained three main wishes for amendments to the Family Law Act: (1) to recognize the best interest of animals, (2) to allow the Supreme Court to make an order for joint custody of a companion animal and (3) to provide a specific provision that grants the Provincial Court with the jurisdiction to deal with pet custody disputes.

right of possession of a companion animal. When doing so, a court must (note the mandatory language) consider the best interest of the animal at issue, including the following factors: the circumstances under which a companion animal was acquired, the extent to which each spouse cared for the companion animal, any history of family violence, any risk of family violence, a spouse’s cruelty, or threat of cruelty, toward an animal, the willingness and ability of each spouse to care for the basic needs of the companion animal and any other circumstance the court considers relevant.

Under section 92 of the Act, which allows spouses to make agreements respecting the division of property and debt, a Supreme Court can now uphold an agreement dealing with jointly owning a companion animal, or sharing possession of a companion animal, or provisions that give exclusive ownership or possession to one of the spouses.

Another key amendment is that the Family Law Act now includes a provision that grants the Provincial Court the jurisdiction to deal with companion animal disputes. This puts the issue of whether the Provincial Court has the jurisdiction to hear pet custody disputes to rest. In my experience, the Provincial Court is best suited for these disputes, instead of the Civil Resolution Tribunal, or the Supreme Court. This is because the Provincial Court tends to be faster and more efficient, while also allowing for viva voce evidence, which is often critical in these cases.

Under section 97 of the Act, which allows a Supreme Court to make orders respecting the division of property or family debt, the court may now determine ownership or

Unfortunately, the new amendments also provide that a Supreme Court cannot make an order for joint custody or possession of an animal. Presumably, this does not apply if

Thankfully, two of these wishes will indeed be reflected in the new legislation. Some of the key changes to the Act include the following.

26 BARTALK / DECEMBER 2023

the court is asked to only uphold an agreement between the spouses under section 92, which may include an agreement for joint custody. Further details can be found in the recent Orders in Council: 544/2023 and 545/2023 that amend the Family Law Act and the Provincial Court Family Rules. Overall, the amended Family Law Act is a step forward for companion animals, especially in regard to considering their best interest and providing the Provincial Court with the jurisdiction to deal with pet custody disputes. However, there are some significant concerns with these amendments, including that the Supreme Court cannot make an order for joint custody, even though that is indeed in the best interest of animals sometimes. It is also concerning that when a Supreme Court considers the best interest factors, part of the legislation provides for the consideration of only the “basic needs” of the animal, when it should really be ensuring that animals be provided care for them to thrive. Notwithstanding some of these shortfalls, it is clear that our laws are evolving to reflect the reality that many people treat their companion animals like family members. In the bigger picture, this also sends the message that it is never a waste of time or judicial resources to litigate animal law disputes. Rebeka Breder is an animal law lawyer in B.C. and the Chair and founder of the CBABC Animal Law Section. She is also increasingly becoming a surfing enthusiast.

communitynews Indigenous Advisory Circle The Law Foundation of BC is committed to decolonizing its practices and working toward anti-racist outcomes. As an organization situated on the traditional, unceded lands of the xwməθkwəýəm (Musqueam), Skwxwú7mesh (Squamish) and Səĺílwətaʔ/Selilwitulh (TsleilWaututh) Nations, the Foundation has an extraordinary duty to build good relationships with, and actualize its responsibility toward Indigenous peoples in British Columbia. The Foundation’s new strategic plan commits the Foundation to “Lifting up Indigenous Justice Revitalization and Justice System Transformation” through grants and work supporting Indigenous legal orders and initiatives that address the Truth and Reconciliation Calls to Action, Missing and Murdered Indigenous Women and Girls Calls for Justice and the Declaration on the Rights of Indigenous Peoples Act — as prioritized by Indigenous communities.” As an important part of existing efforts to support the advancement of Indigenous justice, the Foundation established an Indigenous Advisory Circle (IAC) for the first time in its history, as an

important step in taking accountability, walking alongside and seeking with humility, guidance from Indigenous community members on the Foundation’s transformative work ahead. The IAC mandate is to advise the Foundation on any of its work and particularly that which has a pronounced impact on Indigenous peoples and communities. The IAC will guide the Foundation in its efforts to build a renewed relationship with Indigenous peoples in a way that is respectful, reciprocal, accountable and trust-based. An inaugural two-day meeting of the Indigenous Advisory Circle took place this past September, creating space for dialogue that centers Indigenous peoples and their values at every step, in order to contribute to important reforms within the Foundation so that it can be in right relationship with the Indigenous peoples on whose traditional lands the Foundation operates. To learn more about the Indigenous Advisory Circle and the current Advisors, please click here.

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nothingofficial TONY WILSON, KC

Truth or Consequences

Putting the “con” in conspiracy theorists

follow an eclectic group of rightwing conspiracy theorists on social media, not because “I go where they go” (which is my own contraction for QAnon’s “WWG1WGA” motto), but because I’m genuinely fascinated by conspiracy theorists, how they come to believe what they believe, and how they reconcile facts that unassailably disprove their quackadoodle conspiracy theories. I’m keen to know how they got to where they got to (HTG2WTG2).

Georgia prosecutors to save their skin and avoid jail time.

Whether it’s anti-vaxxers who still claim that COVID-19 was a hoax despite the pandemic’s monumental death toll, or the canard that Bill Gates put a tracking device in all the COVID vaccines, or election deniers in the US who still claim Trump won the election despite recount after recount showing that he had lost, or that grieving parents at school shootings are “crisis actors,” or that the world is controlled by a cabal of nefarious Bond villains within the World Economic Forum, following conspiracy theorists is a never-ending source of fascination for me and it should be for you given the damage they are doing to Western democratic and legal institutions.

Ms. Ellis pled guilty to aiding and abetting false statements and writings, which stoked the lie that Trump had won the election. Harvard law alum Chesebro also pled guilty to conspiracy to commit filing false documents and admitted that he conspired to put forward a list of “fake electors” in Georgia to overturn the election. Powell was a conspiracy theory media darling who pushed baseless and outrageous claims that Dominion Voting Systems (which manufactured the voting machines used in 28 states), was controlled by the Venezuelan government, George Soros and the Clinton Foundation, and that the election results were technologically rigged in favour of Mr. Biden. Fox News propagated the same lie but had to pay $787 million to Dominion to settle Dominion’s lawsuit against it. I wonder if Ms. Powell’s next court appearance will involve her bankruptcy, because Dominion is suing her as well.

I could hardly keep up with conspiracy theory news in the fall. Three lawyers very close to the Trump campaign, namely Sydney Powell, Kenneth Chesebro and Jenna Ellis, each had a hand or two (or three) in propagating conspiracy theories that there was widespread voter fraud in the last US election and that the election had been “stolen” from Mr. Trump. When the facts came crashing down on them, they folded like cheap tents and struck plea deals with

The facts are clear. There was no widespread voter fraud and a number of prominent Republicans have publicly ridiculed the “stolen election” theory as nonsense. As Senator Mitt Romney has said, where there was evidence of voter fraud, the fraud was committed by Republicans, not Democrats. These three lawyers pled guilty to various lesser charges in exchange for no jail, some community service time, an apology, and a commitment to cooperate in the

28 BARTALK / DECEMBER 2023

upcoming case against Mr. Trump. But it strikes me that these lawyers face far more serious consequences than simply admitting they made a boo-boo, and they’re really sorry they messed up. Notwithstanding any other civil liability that they may face, I imagine each of them face potential suspension and even disbarment for their conduct, and that’s an important lesson for all lawyers to learn. Don’t lie on behalf of your clients. I agree that part of our job is to put forward the best case possible, and in many situations, we are called upon to use our advocacy and wordsmithing skills to turn a sow’s ear into a silk purse. But when lawyers make false statements to government authorities or courts, blatantly lie in the media in order to propagate disinformation to sway public opinion or otherwise take steps to thwart democracy, their conduct is comparable with those who orchestrated and participated in the January 6 insurrection. What Powell, Chesebro and Ellis did wasn’t advocacy. It was a recipe for disbarment. Tony Wilson, KC is a Vancouver Franchise Lawyer, a Life Bencher of the Law Society, and an Adjunct Professor at TRU Law School. Over the past two decades, he has been a regular columnist for The Globe and Mail, Canadian Lawyer, and other publications. This is his 20th year writing “Nothing Official” for BarTalk, and as everyone should know by now, the opinions expressed in “Nothing Official” are his alone and do not reflect the views of the Law Society, the CBABC, or their respective members.

barmoves Who’s Moving Where and When

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.

Cameron Fox

Abigail Choi

has been promoted to associate with Clark Wilson’s Business Litigation group.

joined Clark Wilson as an associate in their Commercial Real Estate Law and Strata Property practice groups.

Jennifer Williams

Chanelle Gilbert

joined MLT Aikins as counsel to their growing real estate team in Vancouver.

joined Island Law Office in Victoria to expand her estates practice.

Shelley A. Braun

Margaret Kwan

joined Harper Grey as an associate specializing in subrogated and coverage claims practising with their Insurance Law group. Shelley was called to the B.C. Bar in 1997 and was previously with Alexander Holburn Beaudin + Lang.

joined MLT Aikins as a paralegal to their growing real estate team in Vancouver.

Anand Athiviraham

Joanne Kwan

joined Hamilton Duncan as a partner in their Corporate & Commercial Law group. Anand brings extensive transactional experience and continues his specialization working with professionals and tech start-ups.

joined MLT Aikins as a paralegal to their growing real estate team in Vancouver.

Jacob Foster joined Clark Wilson as an associate with their Insurance, Insurance Coverage, and Infrastructure, Construction & Procurement groups. Jacob’s litigation practice spans insurance and coverage, construction advice, and commercial arbitration.

DECEMBER 2023 / BARTALK 29

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