MacCarthy heads B.C. Branch as new President for 1993/94

NEWSLETIER J. Parker MacCarthy of Dun­OF THE can, B.C. succeeds Robert W. CANADIAN BAR Gourlay as president of the B.C. ASSOCIATION, Branch for a one-year term be­B.C. BRANCH ginning on August 25,1993.

JUNE 1993

·VOLUMES

NUMBER&

MacCarthy has been actively in­volved in CBA activities since his call to the Bar in 1975. He has served on the National CBA Executive Committee, chair of the B.C. Branch Communica­tions Committee and member of the National CBA Communi­cations Committee, a member of the CBA National Task Force on Paralegals, and an elected member of Provincial Council representing Nanaimo County since 1987. He also served as president of the Nanaimo County Bar and Cowichan Bar Association.

Council Highlights oo•••oo•······ 2

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Provincial Council also elected the following to Executive Committee positions: + Eric Rice, Q.C. of Richmond, Vice-President +John Waddell of Victoria, Secretary Treasurer Elected Executive Officers in­clude:

+ Kerry-Lynne D. Findlay of Vancouver +Emily Reid, Q.C., of Vancou­ver + Grant Taylor of New West­minster + Michael Brecknell of Prince George.

(Please turn to page 2)

B.C. Branch Executive Committee members for 1993/94 include: (left to right- front row) Emily Reid, Q.C.(of(icer); J. Parker MacCarthy (President); Eric Rice, Q.C. (Vice-President); Robert Gourlay (Past President. ,(Back Row -left to right) Michael Brecknell (officer); Kerry-Lynne D. Findlay (officer); Grant Taylor (officer); John Waddell (Secretary-Treasurer).

B.C. Branch urges consultation on adoption amendments and delay in proclaiming new Human Rights Act amendments

The provincial government's pro­posed abolition of private adop­tion was vigorously opposed by members of the Canadian Bar As­sociation (B.C. Branch) Provin­cial Council at its June 19, 1993 meeting. While Council mem­bers agreed with regulation of private adoptions including the licensing of non-profit societies

and/ or privately licensed social workers, they oppose the provin­cial government's plan to legis­late an end to private adoptions in B.C.

''The Minister is consulting but not listening to the objections raised to the proposed amend­ments," said B.C. Branch Presi-

(Please turn to page 2)

2

Members elected to B.C. Branch Provincial Council

Carl boo +Randy Walker +Kenneth J.J. O'Brien

Kootenay: + Sandra H.M. Smaill + Susan E. Wallach

Nanaimo: + Albert E. King + Jean Mackie +lain Mciver

Prince Rupert: + Mark Takahashi

Vancouver: + Georgialee A. Lang + Jeffrey P. Scouten . + Phillip Scarisbrick + Moyra A. Dhaliwal + William E.J. Skelly +Alison Sawyer + Ronald G. Fox +Jessie M. MacNeil

Victoria: + Dirk Ryneveld, Q.C.

Westminster: + Therese Alexander + Mark R. Slay

Yale: + Glen Einfeld. C

Council debates adoption and Human Rights Act amendments (cont'd from page 1)

dent Rob Gourlay. Lawyers in­volved in private adoptions sug­gest that it may cost the govern­ment several million dollars to replace the services now provid­ed through the private sector but agree that regulation would en­sure that private adoptions are conducted in accordance with government policy.

The concern that the private sec­tor should not "make money off adoptions"ismisconceived. Most lawyers who do private adop­tions report that it is only a small proportion of general law prac­tices. Another misconception is that there is unequal access for adoptiveparentswhocanpayfor

private adoption. However, many adoptive parents do not wish to use the Ministry due to the long delays in the adoption process and the difficulty that older couples face to adopt a child through the Ministry. Well thought out regulations could help to address these perceived inequities.

Therefore, the CBA (B.C. Branch) urges the provincial government to maintain properly regulated private adoptions within the new legislation.

Council also discussed Bill33, the Human Rights Amendment Act, 1993,andagreed that the govern­ment should delay implementa­tion of the amendments as Coun­cil members had serious concerns as to the effect of the legislation on the rights of free speech. Al­though, the new legislation has now passed third reading since the resolution was approved by Council, the B.C. Branch strongly urges the government to delay proclaiming the Act to consider recommendations forwarded by the B.C. Branch and others.

The CBA (B.C. Branch) Civil Lib­erties and Lesbian & Gay Rights Law Sections support this posi­tion and agree that the amend­ments have been rushed through the legislature without adequate consultation on the serious im­pact the legislation may have on the important rights of free speech.

B.C. Branch to challenge new social services tax on legal services

Council were advised that the B.C. Branch would challenge the amendments to the social servic­es tax on legal services. B.C. Branch counsel Joe Arvay was awaiting third reading of the bill to file the appropriate petition. It is expected that the challenge will be heard in the fall of this year.

At the legislature

The B.C. Branch Government Relations Committee and Execu­tive, in conjunction with Law Society Benchers, met with the

NDP and Liberal Caucus mem­bers on June 8, 1993. The B.C. Branch brought forward several issues to MLAs including the so­cial services tax on legal services.

UBC Dean comments

Dean Lynn Smith of the UBC Law School reported that the law fac­uli ty was reducing the number of incoming students and was ex­panding its Ph.D. program. She noted that there is a shortage of law firms willing to take articling students with some 30 students still to be placed. She called on members to consider taking on an artiding student.

Prince George Family Law Section forms

Council approved formation of a new Family Law (Prince George) Section. Registration information will be circulated with the 1993/ 94 Section Enrollment forms ex­pected tobesentoutinmid-July.

Notaries Committee report

Committee chair JeffScoutennot­ed that the Notaries continue in their efforts to have their num­bers and jurisdiction expanded. Council members suggested that the Committee meet with the Notaries Society to discuss these issues. A member also suggested that the B.C. Branch consider de­veloping a "promotion" pack­age that could be sent to members (particularly sole practitioners and small law firms) and used for local advertising/ promotion pur­poses. The Notaries Committee will report in more detail at the September Council meeting.

1993/94 B.C. Branch budget approved

Secretary-Treasurer Eric Rice re­ported the B.C. Branch will end the current fiscal year with a def­icit between $25,000 and $50,000 as a result of the challenge to the social services tax and moving expenses. Council members sup­ported a ''break -even" budget for 1993/94 with no B.C. Branch fee increase. Memberswereremind­ed that the National CBA fees annually include a modest cost­of-living fee increase. C

3

P,.esitknt's Messqge

Lawyers' positions on issues must be understood and considered by all legislators and the government

In this my last President's mes­sage, I thought it would be use­ful to describe for you the pro­cedure the Bar now has in place to respond to provincial gov­ernment initiatives and new legislation, and to have the Bar's concerns heard by govern­ment.

Particularly in this current ses­sion when the provincial legis­lature has been deluged with new legislation, it is important for lawyers to know that we do have the means in place to ex­amine such legislation and to inform legislators and govern­ment of the Bar's position on certain aspects of much of this legislation.

In this session, the provincial government has introduced several pieces of controversial legislation on which the CBA has made extensive submis­sions. For example, the Bar, along with many other groups forcefully opposed the pro­posed amendments to the Adop­tion Act, which would have done away with private adop­tions and centralized adoptions exclusively within the Social Services Ministry. The govern­ment has now withdrawn these adoption proposals. The gov­ernment says it will try again to bring in more widely accepted adoption legislation, and will pursue greater consultation with interested groups.

Secondly, the CBA, through our elected Provincial Council, de­bated the new Human Rights Act amendments and passed a reso­lution requesting the govern­ment to delay implementation of these amendments to allow the Bar and other groups to re­view and respond to the amendments. These amend­ments gave power to the Hu~ man Rights Council to prose­cute individuals who publish anything which "indicates dis-

crimination." At least two of our Sections wished to review and critique the legislation and advise the provincial govern­ment of the Sections' position on this legislation. However, in this case the government bull­dozed the legislation through the legislature despite our prot­estations and request for ade­quate time to provide our opin­ions and suggestions.

You will see that we have had some success and some failure in influencing the government to listen to our views. Our Leg­islation and Law Reform Com­mittee consists of Greg Steele as Chair, with Susan Fraser, John Waddell and Kerry-Lynne D. Findlay as committee members.

Our Legislation and Law Re­form Officer, Ann McLean, has been with us for several years and does a sterling job of en­couraging government contacts, reviewing bills and organizing our response to legislative initi­atives by Sections or Commit­tees. (Ann receives the Bills presented to the House and di­rects these Bills for response to the appropriate Section or Com­mittee.) Frequently the Bar is askedforconfidentialinputon technical aspects of new legisla­tion before the final form of the Bill is presented to the House.

However, beyond responding to the details of draft legislation and technical matters arising from legislation, the Bar in many cases wishes to take a po­sition supporting or opposing a particular piece of legislation on policy grounds. The task here is to organize the Bar's position on such legislation through its Sections or through debate at Provincial Council in a timely fashion. With the recent Adop­tion Act and the Human Rights Act amendments, we have in fact debated and passed resolu­tions at Provincial Council in

Robert W. Gourlay B.C. Branch President 1992/93

response to both these pieces of legislation.

In my view, the CBA has been quite effective over the last sev­eral years in making the gov­ernment aware of the Bar's po­sition on many controversial pieces of legislation. However, this procedure does require concerted action on the part of the Sections to be effective, and co-ordination through Ann McLean and the Legislation and Law Reform Committee. In this coming year, we are encourag­ing each Section to appoint a Legislation and Law Reform liaison person to deal with our Legislation and Law Reform Committee, and hopefully bring a faster and more effective re­sponse to government propos­als.

In addition to our Legislation and Law Reform Committee, we have put in place a Govern­ment Relations Committee to enhance the Bar's and lawyer's profile with government. Re­cently, the CBA and the Law Society held receptions for each of the caucuses of the three pro­vincial parties. The intention here was to establish personal contacts with legislators, which would allow us to more effec­tively convey our views on cer-

(Please turn to page 4)

4

B.C. Court of Appeal hands down major Aboriginal Law decisions

The major B.C. Court of Appeal decisions including Delgamu­ukw, Vanderpeet, Gladstone, and Alphonse & Dick were handed down on June 25. These deci­sions are the latest statement of law and will affect business, treaty rights, fishing and hunt­ing rights, and taxation and

commercial enterprises.

The Continuing Legal Educa­tion Society has gathered to­gether over 30 leading experts representing the judiciary, law­yers, aboriginal leaders, and government to analyze the im­pact of these decisions and as-

sist you to develop strategies for the future. The Conference will be held during the day on July 24 and the morning of July 25.

Contact CLE for further infor­mation at 669-3544 or 1-800-663-0437. []

Free electronic database assists in search for decisions arising from Limitation Act

The Law Reform Commission of British Columbia has provid­ed each law office in B.C. with a practical Limitation Act Case Finder with each copy of the Law Reform Commission's 1992/93 Annual Report.

Just look for the diskette in the back pocket of the Annual Re­port for your own copy of the Case Finder.

This diskette contains a data­base of 500 cases that embraces virtually all of the decisions since the enactment of the Limi­tation Act in 1975. In addition

to the relevant identifiers, each record contains information as to:

• the judge involved • appeal history • cases cited • Limitation Act provisions in

issue • descriptive key words

The Case Finder installs quickly on your computer and includes "run time" software so that you can search this database by any of the above parameters. Help screens are also included to as­sist you in your search.

President's Message (continued from page 3)

tain issues of concern to law­yers. We also felt that many of these legislators may not even recognize what our organiza­tions do, and moreover, would benefit from personal contact with members of the Bar with whom they could personally discuss issues.

In this coming year we intend to enhance our government re­lations efforts by continuing this type of personal contact, hopefully with the assistance of individual lawyers within each provincial riding who may know individual legislators and be willing to cultivate such rela­tionships. We must make sure that lawyers' positions on is­sues are understood and con­sidered by all legislators and the government. We also in-

tend to increase our formal and informal contacts with legisla­tors and government depart­ments, again with the intention of being prepared for forthcom­ing legislation and being able to make an earlier and more effec­tive response.

It has been my privilege to serve as your President for the past year. I have found it both very interesting and profession­ally satisfying. I am sure next year's Executive Committee and Council, under the leader­ship of Parker MacCarthy of Duncan, will continue the ef­forts to more effectively repre­sent lawyers' interests in regard to both practice and public is­sues. [] Robert W. Gourlay B.C. Branch President 1992/93

The two other electronic appen­dices include a file of all Law Reform Commission Reports and an article describing "Twenty Years of Law Re­form", first published in the Advocate in 1990.

For further information, contact Arthur L. Close, Q.C., Chair­man, Law Reform Commission of B.C., 203-865 Hornby St., Vancouver, B.C. V6Z 2G3 (Tel: 660-2366; FAX: 660-2378). C

Courthouse library celebrates centenary

The Vancouver Courthouse Li­brarywillbe100yearsoldonJuly 20, 1993. As a result of pressure from the Vancouver Bar Associa­tion, the library was created by an amendment to the Legal Profes­sions Act as a ''branch" of the library in Victoria which had been established in 1869.

The original library was located on the top floor of the courthouse at Government Square, on Pend­er Street between Hamilton and Cambie, which is now known as Victoria Square.

There is no record of the number of books in the library but Alfred Watts speculates in his History of the Legal Profession in B.C. thatthe first librarians were "registrars, janitors, deputies and lawyers." The library now has 50,000 vol­umes, computers abound and reference staff respond to 50,000 questions a year. []

00:

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Shelley Bentley

Basics of builders' liens for real estate practitioners

Marina Pratchett gave an over­view of builders' liens law for real estate practitioners in a re­cent Vancouver Real Estate Sec­tion meeting. She emphasized that lawyers who practice in the real estate area must have some basic understanding of the Builders' Lien Act (BLA) in order to advise their clients of possi­ble liability when work is un­dertaken on real property.

The BLA allows a contractor, sub-contractor or materialman to have a lien against property. The lien is against the land, not the owner. It is a legislative right that is not available at common law. Because the right is against the land and not the person, it affects vendors and purchasers. To understand the BLA limitation periods for filing liens and owners' responsibili­ties, one first needs to know that in practice there are gener­ally two different methods for structuring contractual relation­ships on a project site.

The first is where an owner contracts with one person, com­monly called the general con­tractor. The general contractor, in tum, contracts with various sub-contractors and suppliers and takes responsibility for co-

ordinating the work. The sec­ond is where an owner decides to be his or her own "contrac­tor" and takes responsibility for hiring all the contractors him­self or herself and coordinating the work. Under the BLA a contractor is defined as any person having a direct contract with the owner. In this latter arrangement the persons who normally consider themselves to be sub-contractors are "con­tractors" under the BLA.

Section 22 of the BLA governs filing times for liens. It pro­vides that a contractor or sub­contractor may fil~ a lien within 31 days of substantial comple­tion, termination or abandon­ment of the contract between the owner. In the first above­described contractual arrange­ment the general contractor and all of his or her subcontractors could file liens for 31 days after substantial completion of the entire project. Therefore a framer, one of the first trades on site, will have until31 days after completion of the project to file a lien. However, if the owner has contracted directly with the framer as in the second situation, then the framer and any of the owner's sub-contrac­tors would have to file liens within 31 days of completion of the framing. Note, however, that certain wording in section 22leaves it open, arguably, for a material supplier to file a lien until31 days after completion of the project regardless of which situation exists.

An owner who contracts with a general contractor may protect himself or herself in relation to liens by holding back from the person with whom he or she contracts 10% of the value of the work done. This is normal­ly done by deducting from each payment made 10% of the amount that would otherwise be due.

The one exception to the provi­sions contained in the BLA for filing times and holdbacks is found in section 75 and 76 of the Condominium Act and under regulations. Under this section, where the work is being done at the request of the developer, liens can only be filed until31 days after the sale of the strata lot from the developer to the first purchaser. Therefore, for example, where the developer has pre-sold units and the new owner has taken title in the · Land Title Office, liens could only be filed within 31 days of that date. This is so unless the new owner becomes intimately involved in the construction process, for example, by re- · questing the contractor to make changes to his or her particular unit, which may give rise to a claim against that owner's in­terest. The regulations under the Condominium Act provide for a 7% holdback.

In trying to determine substan­tial completion a lawyer should also investigate what has hap­pened in terms of payment. Has there been a declaration of substantial completion? Speak to the architect if there is one on site. Has and occupancy permit issued? Substantial completion is not defined in the BLA. It is a term of art. These are just fac­tors to consider. They are not conclusive. If any work is left to be done that has a safety as­pect, such as putting balcony railings on, there is no substan­tial completion. See if the archi­tect has prepared a deficiency list.

Once a lien is filed it can be posting security. There is more to this than merely paying the 10% hold back into court. The full value of the claim plus 10% for security for costs must be paid in. The court will accept cash, letters of credit or bonds. In order to be limited to 10%

6

Section Talk (continued)

the owner needs a trial if it is unchallenged.

What do you do to protect a purchaser of a new building? If retained before the offer is signed, try to ensure that the closing will fall outside the limi­tation for filing liens. If possi­ble try to get an indemnification in the purchase contract. If your are retained after the pur­chase contract has been signed try to do the following:

• change the closing date so that it falls outside the limita­tion for filing liens

• hold back for the lien peri­od

• seek a clearly worded in­demnification.

Family and Child Service Act recommendations forwarded

Fred Storey provided Native Justice Section members with an overview of the report "Lib­erating Our Children, Liberating our Nations."

This report is a review of the Family and Child Services Act with specific emphasis on abo­riginal concerns. It was com­piled after consultation with ab­original people. Storey re­viewed statistics which reflect the differing impact that the Family and Child Service Act has on aboriginal and non-aborigi­nal people. For example, one in five hundred non-aboriginal children are in care but one in five aboriginal children will be­come wards of the Superintend­ent. The Report recognizes the relationship between poverty and apprehensions.

Storey explained that there are two basic models of child pro­tection legislation: intervention­ist/ non-legalistic (The approach

taken in B.C. presently.) and non-interventionist /legalistic. Aboriginal communities, if they have control, tend to favour the interventionist model. If the Minister has control the prefer­ence is for a legalistic model.

The recommended solution is to draft new legislation which is " legalistic and non-interven­tionist" and which would speci­fy a different process for abo­riginal people and provide for transfer of jurisdiction to Abo­riginal Nations. There would also be a second piece of ena­bling legislation for aboriginal people to write their own laws. The Province would vacate the field as Aboriginal Nations de­velop their own laws which would be paramount. The leg­islation would be drafted im­mediately but would be imple­mented at different times for different communities.

The definition of Aboriginal Nation would be very flexible and there would be no artificial divisions such as urban/ rural, status/ non-status etc., in the provision of Aboriginal Family Services. Provision is made in the Report for aboriginal people who are not connected with a specific Nation in B.C.

The Report also makes recom­mendations in relation to the current judicial process includ­ing the need for the extended family to have a say. Specific recommendations are made with respect to removing barri­ers to using the extended family as a resource. For example, it is recommended that the extend­ed family be exempted from the foster family approval process.

The Report also recognized that family disputes are not best handled by an adversarial court system. It is felt that there should be differentiation be­tween emergency and non­emergency situations and that

apprehension should not be the only choice.

Mr. Justice Lambert speaks on statutory interpretation

Mr. Justice Lambert of the B.C. Court of Appeal offered guid­ance to Legal Research Section members on statutory interpre­tation tools and techniques. His comments serve as a useful overview for research "rusty" practitioners

First the provisions of the stat­ute in question should be read as a whole, in context, to assess Parliament's intentions. Regard should be given for the object of the Act, the ends sought to be achieved or the mischief sought to be remedied and the scheme of the Act or the relationship between the various sections. The words of the Act ought to be read in their ordinary gram­matical sense.

To assist the Court with this process Justice Lambert recom­mends providing the Court with a copy of the entire statute rather than just the provision that the interpretation question concerns. Textbooks such as those by Maxwell, Driedger and Craies and the case law principles of statutory interpre­tation ought to be more of a last resort, in His Honour's opinion.

The appropriate federal or pro­vincial Interpretation Act must always be checked. The legisla­tive history of the statute should be considered Read the Act as it was first introduced. Find out what the "mischief" was when it was first intro­duced. Know what former Acts existed on the same subject matter. Examine all relevant amendments.

(Please turn to page 13)

You will see a reference to the number of the Bill (First Reading Bill Number) when it was introduced into the House. This number may be different from the chapter number of the new Act which is quoted after the title of the Act and which is the proper citation for the Act. The First Reading Bill Number has been given to you to make it easier for you to note up the Bills you may have in your library.

Every effort is made to ensure the accuracy of the information provided to you in this article but the information should not be relied upon. Lawyers should refer to the specific legislative or regulatory provision.

ACTS IN FORCE FROM PREVIOUS SESSIONS

The following acts, passed in previous sessions, have been brought into force by regulation and are reported chronologically by in force date.

International Trusts Act, S.B.C. 1989, c.6, enacts the Unifonn International Trusts Act prepared by the Uniform Law Conference of Canada. The Act adopts the Hague "Convention on the Law Appli­cable to Trusts and their Recognition", which pro­vides guidelines to be used in giving effect to trusts that were created in jurisdictions that rec­ognize the concept of a trust, where the trust doc­ument must be applied and interpreted in a juris­diction whose law does not recognize the concept of a trust. The Convention is extended to trusts declared by judicial decisions including construc­tive trusts and resulting trusts.

itt force May 14, 1993

Conflict of Laws Rules for Trusts Act, S.B.C. 1990, c.17, enacts a uniform statute prepared by the Uniform Law Conference of Canada, which provides a system of conflict of laws rules in rela­tion to trusts which have aspects involving two or more provinces or territories of Canada. It ap­plies only where the applicable law is that of a Ca­nadian jurisdiction to which the International Trusts Act does not apply.

itt force May 14, 1993

Offence Amendment Act, 1990, S.B.C. 1990, c.22, amends the Offence Act, R.S.B.C. 1979, c.305, pro­viding that a violation ticket must contain a state­ment that if the allegation or fine is not disputed, it will be treated as not disputed and the person served with the ticket will be deemed to have pleaded guilty.

t/tQt part of s.4 of the Act ettactittg s.14(3)(tl) of the Of/ettee Act itt force May 20, 1993

Ann McLean

British Columbia Transit Amendment Act, 1992, S.B.C. 1992, c.71, amends the British Columbia Transit Act, R.S.B.C 1979, c.421, allowing the Van­couver Regional Transit Commission to contrib­ute less than its funding obligation for the 1992-93 fiscal year and make up the deficiency in the 1993-94 fiscal year and permitting the taxation of va­cant land under s.12(13) of the Act.

secticms 1, 2, 5, S(a), 13 atttl 14 except t/u,t part of s.14 ettactittg s.24(h) to (l) of the British Colwtttbi11 TrattSit Act itt force

Jwtte 11, 1993

Independent School Act, S.B.C. 1989, c.51, limits the type of institution which may offer schooling to school age persons and requires that a person who operates an independent school hold a certif­icate of group classification. sectiOtt 13 of the Act itt force July 1, 1993 (the btdattee of the Act

has beett Itt force sittee September 1, 1989)

Justice Reform Statutes Amendment Act, 1989, S.B.C. 1989, c.30, amends the Evidence Act, R.S.B.C. 1979, c. 116, dealing with expert evi­dence, to exclude from the definition of "proceed­ing" in s.10, 11 and 12, proceedings in the Court of Appeal, Supreme Court and Provincial Court and deleting some references to "judges".

sectiOtt 10(a) atttl (c) atttl11 of the Act itt force Awgwst 30, 1993

ACTS IN FORCE FROM 1993 SPRING SESSION

The following acts, passed in the 1993 spring session, are now in force and are reported in order of bill number.

Build BC Act, S.B.C. 1993, c.3, First Reading Bill Number 3, provides for the establishment by the Lieutenant Governor in Council of a Committee on Building British Columbia's Future which will oversee expenditures from the Build BC Special

8

Legislative Update (continued)

Account, which is also established. The BC Transportation Financing Authority whose pur­pose is to plan and construct transportation infra­structure throughout B.C. is established and given authority to borrow, invest and obtain revenue from a gasoline tax, a car rental tax and tolls. Consequential amendments are made to the Fi­nancial Infonnation Act, the Ministry of Transporta­tion and Highways Act, the Motor Fuel Tax Act pro­viding for a tax of 1 cent per litre of motor fuel purchased, and the Social Service Tax Act provid­ing for a tax of $1.50 per day on the rental of a passenger vehicle if leased for 28 days or less.

ill force April1, 1993

Budget Measures Implementation Act, 1993, S.B.C. 1993, c.9, First Reading Bill Number 4, amends the

(a) Motor Fuel Tax Act, S.B.C. 1985, c.76, strik­ing out references to '1eaded gasoline" and increasing the tax on a particular type of nat­ural gas,

(b) Sustainable Environment Fund Act, S.B.C. 1990, c.27, deleting some sources of revenue for and restricting expenditures from the Sustainable Environment Fund, and

(c) Tobacco Tax Act, R.S.B.C. 1979, c.404, in­creasing the tax payable on some tobacco products.

sectiou1- 5 of the Act (Motor Fuel Tou Act) ill force April1, 1993; secticntS 6- 8 of the Act (SU$t4liiUihle Ellvirollmettt Futul

Act) ill force Tulle 18, 1993; sectiDil 9 of the Act (Tobacco Tax Act) Ill force March 31, 1993

Income Tax Amendment Act, 1993, S.B.C. 1993, c.19, First Reading Bill Number 5, amends the In­come Tax Act, R.S.B.C. 1979, c.190, deleting the renter's tax reduction and establishing a refunda­ble sales tax credit, increasing the surtax payable by higher income earners for the 1994 and follow­ing taxation years and increasing the corporate tax rate from 16% to 16.5% effective July 1, 1993.

sectioll 8.4 of the lllcome Tou Act as mtU:ted by sectiOil 7 of the Act applies ill respect of the 1987 atul subseqllellt watiDil

years; sectiOils 1 -6 of the Act ill force Jalluary 1, 1993

Social Servia Tax Amendment Act (No. 2), 1993, S.B.C. 1993, c.24, First Reading Bill Number 8, amends the Social Service Tax Act, R.S.B.C. 1979, c.388, as it relates to the tax on legal services. A summary of the act was provided in the Legisla­tive Update of the March/ April issue of BarTalk under the heading "Introductory Bills to Note".

sectiOils 1- 8 of the Act ill force Julle 1, 1992; secticntS 11 -14 of the Act ill force Julle 22, 1992 alld sectioM 15 - 23 of the Act ill

force April1, 1993

Fire Services Amendment Act, 1993, S.B.C. 1993, c.15, First Reading Bill Number 11, amends the Fire Services Act, R.S.B.C. 1979, c.133, granting to the fire commissioner the authority to appoint lo­cal assistants and eliminating the requirement that a local assistant's report on a fire be on a par­ticular form.

ill force Julle 18, 1993

Municipalities Enabling and Validating (No.2) Amendment Act, 1993, S.B.C. 1993, c.22, First Reading Bill Number 12, amends the Municipali­ties Enabling and Validating Act (No.2), S.B.C. 1990, c.61, validating and authorizing agreements made by several municipalities despite omissions or prohibitions in the Municipal Act and constating documents.

ill force Tulle 18, 1993

Income Tax Amendment Act (No.2), 1993, S.B.C. 1993, c.20, First Reading Bill Number 13, amends the Income Tax Act, R.S.B.C. 1979, c.190, adopting definitions and other provisions of the federal In­come Tax Act and making amendments conse­quential to amendments to the federal act.

ill force Juu 18, 1993, but SOifU! provililiDfllil have retrotU:tive effect alld some have prospective effect

Employee Investment Amendment Act, 1993, S.B.C. 1993, c.11, First Reading Bill Number 16, amends the Employee Investment Act, S.B.C. 1989, c.24, permitting an employee venture capital cor­poration to allot or issue fractional shares and to reacquire them without consolidating them.

sectiOil 1 of the Act ill force November U, 1992

School Amendment Act, 1993, S.B.C. 1993, c.6, First Reading Bill Number 19, amends the School Act, S.B.C. 1989, c.61, inter alia requiring the Lieu­tenant Governor in Council to prepare a standard school calendar and school boards to provide in­formation on dates and times of school days to parents, requiring school boards to consider com­munity plans and to consult with local govern­ments in preparing capital plans and local govern­ments to consult with school boards in adopting or amending community plans, allowing for a tendering process to be followed by school boards relative to capital projects, and making conse­quential amendments to the Islands Trust Act, the Municipal Act, the Taxation (Rural Area) Act and the Vancouver Charter.

Act, except that part of s.2 mactillg the defillitiDil of "day of iMtructiOil", ill force Julle 4, 1993; that part of s.2 mactillg tlu!

defillitiOfl of "day of illStrllctiOil" ill force July 1, 1993

Independent School Amendment Act, 1993, S.B.C. 1993, c.21, First Reading Bill Number 20, amends the Independent School Act, S.B.C. 1989, c.51, inter

Legislative Update (continued)

alia allowing for interim certificates of group clas­sification, clarifying that the minister may deter­mine the materials and services an authority is en­titled to receive, differentiating between schools of different group classifications for purposes of grants and issuance of certificates of graduation, allowing for special purpose grants and amending the Schedule to provide for interim certificates of classification and consolidation of group 5 into group3.

itt for'U Jwly 1, 1993

Environment, Lands and Parks Statutes Amend­ment Act, 1993, S.B.C. 1993, c. 13, First Reading Bill Number 25, amends the Wildlife Act, S.B.C. 1982, c.57, allowing a hearing to be held under s.62(1) of the Act in respect of a person holding a guide outfitter's certificate.

~cti011 18 of the Act itt force Jw..e 18, 1993

Miscellaneous Statutes Amendment Act, 1993, S.B.C. 1993, c.28, First Reading Bill Number 27, amends inter alia the

(a) Court Order Interest Act, R.S.B.C. 1979, c.76, abolishing pre-judgment interest on amounts representing income loss which have been previously compensated, as of the date of payment and abolishing pre-judg­ment interest on non-pecuniary damages for personal injury or death,

(b) Creditor Assistance Act, R.S.B.C. 1979, c.80, allowing the sheriff, under s.45 of the Act, to deposit funds in savings institutions, rather than being limited to banks,

(c) Drainage, Ditch and Dyke Act, R.S.B.C. 1979, c.98, allowing the collector, under s.67 of the Act, to deposit funds in savings insti­tutions, rather than being limited to char­tered banks,

(d) Land Surveyors Act, R.S.B.C. 1979, c.217, allowing the secretary, under s.33(d) of the Act, to deposit funds in savings institutions, rather than being limited to chartered banks,

(e) Liquor Distribution Act, R.S.B.C. 1979, c.238 permitting liquor to be shipped directly from the manufacturer, warehouse or liquor store to a liquor store or agency store,

. (f) Ombudsman Act, R.S.B.C. 1979, c.306, pro­viding protection to anyone who complains to the Ombudsman or assists in an investiga­tion or inquiry, and

(g) Railway Act, R.S.B.C. 1979, c.354, allowing the provisional directors, under s. 79(3)(d) and 81(1) of the Act, to deposit funds in sav-

9

ings institutions rather than being limited to chartered banks.

sectiOrtS 2 - 5, 8, 13 - 15, 17 artd 18 of the Act irt force Jwrte 30, 1993; secti011 13 (Liqwor Distribwtiort Act) itt force September

30,1993

Energy, Mines and Petroleum Resources Statutes Amendment Act, 1993, S.B.C. 19931 c.l2, First Reading Bill Number 28, amends the

(a) Hydro and Power Authority Privatization Act, S.B.C. 1988, c.39, permitting the designa­tion as a special company, of a company that acquires more than 50% of the voting shares of a previously designated special company and increasing the number of exemptions available for holders of shares in a special company from one to two, and

(b) Utilities Commission Act, S.B.C. 1980, c.60, allowing the commission to order partici­pants in proceedings before it to pay the costs of other participants and giving the commission discretion to pay participants' costs.

sectiOrtS 8, 9 atul 25 of the Act itt fora Jwrte 18, 1993

Forest Amendment Act, 1993, S.B.C. 1993, c.16, First Reading Bill Number 30, amends the Forest Act, R.S.B.C. 1979, c.140, changing the timing for making an offer to replace a tree farm licence to the six month period following the fourth anni­versary, for those licences issued on or after July 1, 1993, with the new licence to be effective on the fifth anniversary of the licence being replaced, with some transitional exceptions.

s.1 atul 22(1) atul (2) of the Act itt force J11rte 18, 1993

Educational Programs Continuation Act, S.B.C. 1993, c.S, First Reading Bill Number 31, ends the strike by the Vancouver Teachers' Federation, im­poses binding arbitration and provides a mecha­nism for resolution of education labour disputes which may occur in other school districts.

itt force May 30, 1993

Human Rights Amendment Act, 1993, S.B.C. 1993, c.27, First Reading Bill Number 33, amends the Human Rights Act, S.B.C. 1984, c.22, broadening the extent of the prohibition on discriminatory publication in s.2 of the Act and extending it to publication of material which is likely to expose a person or group or class of persons to hatred or contempt. There is an exception for private com­munication, but the previous exception, which al­lowed freedom of expression of opinion subject to the Civil Rights Protection Act is removed.

irt force Jw..e 30, 1993

10

Legislative Update (continued)

Finance and Corporate Relations Statutes Amendment Act, 1993, S.B.C. 1993, c.14, First Reading Bill Number 36, amends the

(a) Educational Institution Capital Finance Act, R.S.B.C. 1979, c.102, the Hospital District Fi­nance Act, R.S.B.C. 1979, c.179, and the School District Capital Finance Act, R.S.B.C. 1979, c.376, allowing the applicable authority to delegate borrowing powers to the Minister or Deputy Minister of Finance,

(b) Financiallnfonnation Act, S.B.C. 1985, c.8, allowing the minister to issue directives re­specting compliance with the Act, and mak­ing housekeeping amendments to the Sched­ules,

(c) Home Purchase Assistance Act, R.S.B.C. 1979, c.172, clarifying the provisions in s.13 of the Act pursuant to which the minister may protect the Crown's security,

(e) Social Service Tax Act, R.S.B.C. 1979, c.388, clarifying that a resident for the purposes of the Act includes someone who receives a home owner grant or is a member of the medical services plan, reducing the period for payment of estimated assessments under s.12 of the Act from 30 to 15 days, and clari­fying that lessees are not liable to pay levies under s.2.4 of the Act, and

(0 Vancouver Stock Exchange Act, S.B.C. 1907, c.62, requiring the Exchange to pay 85% of the costs of the government ordered inquiry into the operations of the Exchange and the Securities Commission to pay the balance, and allowing the Exchange to impose levies on persons under the jurisdiction of the cor­poration and corporations listed on the ex­change to allow it to pay those costs.

secticms 1 - 6, 11 - 17 tvtd 20 of the Act i11 force fut~e 18, 1993; sectio11 21 (VIIIICDIIVer Stock Exchllt~ge Act) i11 force M11y 13,

1993

Corporation Capital Tax Amendment Act, 1993, S.B.C. 1993, c.10, First Reading Bill Number 40, amends the Corporation Capital Tax Act, S.B.C. 1992, c.4, extensively, including clarifying provi­sions of the Act, providing specifically for nonres­ident corporations in certain calculations, increas­ing the taxation threshold from $1 million to $1.25 million of paid up capital, providing phase in pro­visions between $1.25 million and $1.5 million and amending the paid up capital provisions. secticms 1 - 13 of the Act i11 force April1, 1992, secticm 14 of the Act i11 force /~~t~e 1, 1992 lltld sectiotiS 15- 30 of the Act i11 force

April1, 1993

Municipalities Enabling and Validating (No.2) Amendment Act (No.2), 1993, S.B.C. 1993, c.29,

First Reading Bill Number 43, amends the Munici­palities Enabling and Validating Act (No. 2), S.B.C. 1990, c.61, validating and authorizing agreements, plans and by-laws made by several municipalities despite lack of necessary approvals, omissions or prohibitions in the Municipal Act and constating documents.

Act, except secticm 2, i11 force fJme 30, 1993

ACTS NOT YET IN FORCE TO NOTE

The following acts, passed in the spring 1993 session, have received royal assent and will be brought into force by regulation. They are reported in order of bill number.

Waste Management Amendment Act,1993, S.B.C. 1993, c. 25, First Reading Bill Number 26, amends the Waste Management Act, S.B.C. 1982, c.41, to provide a more comprehensive process for man­aging contaminated sites and establishing liability for remediation. In order to identify contaminat­ed sites, certain persons will be required to pro­vide a site profile and a manager may require a site investigation. A site registry will be estab­lished, in which information relating to a site will be recorded and made available to the public. A manager may make a determination that a site is contaminated. Persons who are liable to remedi­ate a site are specified, including current and past owners. "Owner'' includes a pers6n who is in possession of, has the right of control of, occupies or controls the use of the property. Some exemp­tions are specified. Liability is absolute, retroac­tive and joint and several and applies despite the fact that introduction of the contaminating sub­stance into the environment was in compliance with legislation and permits which were in effect at the time of introduction. The minister may ap­point a panel to allocate liability. A manager may determine that a person is a minor contributor. Various remediation options will be evaluated and permanent remediation solutions will be fa­voured. A manager may issue an approval in principle, conditional certificates of compliance and certificates of compliance. Some aspects of the remediation process may be delegated to mu­nicipalities upon agreement. A lien for recovery of remediation costs may be registered at the land title office, with priority over most other claims. Consequential amendments are made to the Is­lands Trust Act, Lllnd Title Act, Mines Act, Munici­pal Act, Petroleum and Natural Gas Act, Property Lllw Act, and Vancouver Charter.

Legislative Update (continued)

Miscellaneous Statutes Amendment Act, 1993, S.B.C. 1993, c.28, First Reading Bill Number 27, amends inter alia the

(a) Insurance (Motor Vehicle) Act, R.S.B.C. 1979, c.204, changing the deductible for prop­erty damage claims for hit and run accidents from $150 to an amount to be set by regula­tion,

(b) umd Title Act, R.S.B.C. 1979, c. 219, allow­ing the registrar to duplicate an original mar­riage or death certificate or trust instrument and return the original in certain cases, re­quiring that only original documents be ten­dered and providing that damage suffered by an owner of an air space parcel is compen­sable out of the assurance fund, and

(c) Personal Property Security Act, S.B.C. 1989, c.36, clarifying that references in s.3 of the Act are to transfers, consignments and leases which do not secure payment or performance of an obligation.

INTRODUCTORY BILLS TO NOTE

The following bills were introduced in the spring 1993 session, but as of June 30, 1993 had not received royal assent. They are reported in order of bill number.

Commercial Tenancy Act, First Reading Bill Number 10, repeals and replaces the Commercial Tenancy Act, R.S.B.C. 1979, c.54. The Act adopts almost entirely the recommendations of the Law Reform Commission in its December 1989 Report No.108, ''Report on the Commercial Tenancy Act". The Act will be brought into force by regu­lation.

Consumer Protection Statutes Amendment Act, 1993, First Reading Bill Number 21, amends the

(a) Consumer Protection Act, R.S.B.C. 1979, c.65, regarding direct sellers,

(b) Credit Reporting Act, R.S.B.C. 1979, c.78,

(c) Motor Dt?iller Act, R.S.B.C. 1979, c.287, es­tablishing the Motor Dealer Customer Com­pensation Fund, and

(d) Sale of Goods Act, R.S.B.C. 1979, c.370, re­garding implied warranties and providing a buyer's lien.

The Act will be brought into force by regulation.

Environmental Assessment Act, First Reading Bill Number 32, establishes a process for the assess­ment of the environmental, economic, social, cui-

11

tural and heritage effects of reviewable projects, replacing three different processes which were previously used to evaluate energy projects, mine developments and major projects. The Act will be brought into force by regulation.

Local Elections Reform Act, 1993, First Reading Bill Number 35, amends the Municipal Act, R.S.B.C. 1979, c.290, the School Act, S.B.C. 1989, c.61, the Islands Trust Act, S.B.C. 1989, c.68, the Vancouver Charter, S.B.C. 1953, c.SS, making many changes to the laws governing municipal, school board and regional district elections. Section 2 of the Act will be in force July 31, 1993 and the bal­ance of the Act will be in force June 15, 1993.

Adult Guardianship Legislation: Representation Agreement Act, Adult Guardianship Act, Public Guardian and Trustee Act and Health Care (Con­sent) and Care Facility (Admission) Act, First Reading Bill Numbers 48, 49, 50 and 51, establish­es a new system of assistance for adults in want or need of help in making decisions about their health, personal care, financial and legal affairs. The Acts will be brought into force by regulation.

Legal Profession Amendment Act, 1993, First Reading Bill Number 53, amends the Legal Profes­sion Act, S.B.C. 1987, c.25, making organizational changes to the Law Society and inter alia

(a) expanding the membership of the Law Society to include non-practicing members, authorizing rules dealing with retired and non-practicing members and providing that non-practicing members are not authorized to practiCe as notaries,

(b) permitting the appointment of a person who is not a member to any benchers' com­mittee,

(c) allowing rules to be made establishing conditions under which members may prac­tice as mediators,

(d) allowing lawyers from other jurisdictions to obtain permission to practice in B.C. for a period of time rather than in respect of a par­ticular matter,

(e) prohibiting people who are no longer members due to disciplinary proceedings from practicing law, whether or not they are paid for doing so,

(f) removing the requirement that a member be a Canadian citizen,

(g) repealing s.32, which prohibited associa­tion by members in the practice of law with non-members outside the Province,

12

Legislative Update (continued)

(h) providing that the procedure under the Rules of Court for the assessment of costs and review of bills and agreements applies to the review of fee agreements, including con­tingent fee agreements;

(i) clarifying that the Unclaimed Money Act does not apply to money in members' trust accounts; and

making consequential amendments to the Attor­ney General Statutes Amendment Act, 1989. The Act will be brought into force by regulation.

Freedom of Information and Protection of Privacy Amendment Act, 1993, First Reading Bill Number 62, amends the Freedom of Information and Protec­tion of Privacy Act, S.B.C. 1992, c.61, extending the freedom of information and privacy rights to cov­er local government and other bodies, including the Law Society of British Columbia. The Act will be brought into force by regulation.

Residential Tenancy Amendment Act, 1993, First Reading Bill Number 67, amends the Residential Tenancy Act, S.B.C. 1984, c.15, inter alia authoriz­ing regulations respecting a standard form tenan­cy agreement which may become applicable to all tenancies. The Act will be brought into force by regulation.

REPORTS AVAILABLE

Report Source

REGULATIONS TO NOTE

Parole Act, B.C. Reg. 61/93, the Parole Act Regu­lation is amended to provide that no application for day parole or full parole may be made by an inmate serving a term of two or more years with­in 4 months of the date of the board decision not to grant such parole and to require permission from the parole supervisor for certain changes to the inmate's circumstances.

B.C. Reg. 196/93 effectiTJe ]wtte 11, 1993

Court Rules Act, B.C. Reg. 221/90, the Supreme Court Rules are amended to add Rule 40A, deal­ing with expert evidence, previously governed by s.lO and 11 of the Evidence Act. Experts' reports must be delivered at least 60 days before the ex­pert testifies. At trial, the court may dispense with the requirement of delivery of a statement.

effectiTJe Awgwst 30, 1993

Court Rules Act, Family Maintenance Enforce­ment Act, Rules 6(3) - (8) of B.C. Reg. 82/93, the Provincial Court (Family) Rules are in force, pro­viding for expert witnesses and their reports.

effectiTJe Awgwst 30, 1993

Blueprint for Change Waste Reduction Commission (660-9550)

Family Law Committee makes submission on child protection

Standards for A Changing Workplace: A Review of Employment Standards in British Columbia

An Economic Framework for Sustainability

Protected Areas Strategy for British Columbia

Breaking Up Is Hard To Do: Rethinking the Family Justice System in B.C.

Review of the Employment Standards Act -Interim Report

Ministry of Labour and Con­sumer Services - Employment Standards Branch offices and Government Agent offices

B.C. Round Table on the Envi­ronment and the Economy (Victoria- 387-5422; in B.C. -1-800-665-7002)

Ministry of Environment, Lands and Parks Protected Areas Strategy Office (953-3471)

Ministry of Attorney General Communication and Education Branch (387-9281)

Ministry of Labour and Consumer Services - Employment Standards Act Review office (387-3795)

Representatives of each of the Family Law Sections sit on a Special Branch Committee to Review Child Protection Issues.

The Committee, chaired by Sonja Sanguinetti, with mem­bers Rose Raven, Gordon McPherson, Michael New­combe, Dennis Boon, Stephen Soli, Dianne Mcdonald, and Barbara Bulmer recently made a comprehensive submission to the Ministries of Social Services and Attorney General on the recommendations of a commu­nity panel report. The report, "Making Changes: A Place to Start", made recommendations for many changes to the child welfare system.

(Please turn to page 13)

13

A group of 12 Japanese lawyers recently visited Vancouver to study apprehension and detention policies in Canada. B.C. Branch President Rob Gour~ and B.C. Branch Executive Director Robert Smethurst, Q.C., welcomed the group. B.C. Branch members Jim Jardine, Lorne W1se, Tony McArthur, and Richard Cairns gave presentations and answered questions from the group.

Family Law submission (continued from page 12)

The British Columbia Branch acknowledges the substantial contribution of time and exper­tise made by all the family law practitioners who were in­volved in this project. C

Court Order Interest Act amended

The Court Order Interest Act has been amended, abolishing pre­judgment interest on amounts representing income loss from personal injury or death which have been previously compen­sated and abolishing pre-judg­ment interest on non-pecuniary damages for personal injury or death.

The amendments were effective June 30, 1993 and apply to or­ders made in an action com­menced but not concluded be­fore June 30 and all subsequent actions.

The amendments are contained in the Miscellaneous Statutes Amendment Act, 1993, S.B.C. 1993, c.28, First Reading Bill Number 27, s.2, 3 and 18. C

Law firm administrators elect new executive

The Executive Committee of the Vancouver Association of Legal Administrators (V ALA) have been announced. They are:

President: Jay R. Cathcart, Alexander, Holbum, Beaudin & Lang

President-Elect: John A. Lincoln, MacKenzie Fujisawa Brewer Stevenson Koenig

Section Talk (continued from page 6)

Look for similar Acts in other jurisdictions. If the wording is different, find out why. Con-sider extrinsic evidence such as Hansard, Royal Commission Reports, Law Reform Commis­sion Reports, Studies etc.

Justice Lambert advised that, generally, the Courts will take a broad view of what is admissi-ble by way of extrinsic evi-dence. He suggested that law-yers put themselves in the posi­tion of the draftsperson, and also in the position of the per-son who introduced the Bill into the House and think about why the wording was chosen as it was. Generally, all Acts should be given a purposive construction.

In conclusion, Justice Lambert cited the case of H.M.T.Q.B.C.

Vice-president: Colin I. Cameron, Clark, Wilson

Secretary: Maureen O'Leary, Jeffery & Calder

Treasurer: John B. Hawke, Clark, Wilson

Past President: Sarah J. BeSt, Stikeman Elliott. C

v. Henfrey., Samson Belair Ltd., (1989) 2 S.C.R.24 for useful com­ments on this topic and his pa­per entitled "Ratio Decidendi and Obiter Dicta: Some Observations about Sellars v. The Queen, [1980] 1 S.C.R. 527" for and in-depth analysis of "obiter dicta". A copy of this paper is available from the B.C. Branch for a nomi­nal cost (see below regarding or­dering Section Papers).

How to obtain Section Papers

The enclosed flyer lists June Sec­tion Papers available for $7 +GST. Contact Johanna Bloch at the B.C. Branch (687-3404) for a list of all Section Papers released in 1992/ 93. C

14

Your Registry Questions Answered by /CHJ111U Power, MaMger Registrar Program

Rule 608 Q: Can a respondent apply for a divorce order?

A: No. The respondent must claim relief by filing an answer and counter-petition in order to apply for the divorce.

Small Claims Act Section 15

Q: Can a Master hear an appli­cation to extend time to appeal a Small Claims action?

A:No.Onapplication,aJudgeoftheSupremeCourt may by order shorten or extend the time for doing anything under this part.

"(1) On application, a Judge of the Supreme Court may by order shorten or extend the time for doing anything under this Part.

(2) A time limit may be extended even if the appli­cation for the extension, or the order granting it, is made after the time limit has expired."

Rule 51(5)

A: Rule 51(5):

Q: How would a commissioner for taking affidavits swear/af­firm a document where the de­ponent is blind?

"Where it appears to a person before whom an affidavit is made that a deponent is unable to read it, he or she shall certify in the jurat that the affidavit was read in his or her presence to the deponent who seemed to understand it."

Rule 15(4)

A: No. Rule 15(4):

Q: Can a Registrar issue execu­tion proceedings against a new party pursuant to a change of name or assignment?

''Where a change or transmission of interest or liability of a party has taken place or a person interested comes into existence after the commence­ment of a proceeding and it becomes necessary or desirable a) that a person not already a part should be made a party, or

b) that a person already a party should be made a party in another capacity, the court mall order that the proceeding be carried on between t e continu­ing parties and the new party." (underlining added)

Rule 57(29) Q: Does an appointment to as­sess or review have to attach the bill or agreement when deliv­ered?

A: Yes. Rule 57(29) provides: The appointment shall be in Form 24, which requires that a copy of either the bill of costs, lawyer('s) bill(s) or contingent fee agreement which is the subject of the appointment be attached.

Legal Profession Act Q: Can a lawyer recover costs when he sues a client for fees in Small Claims Court, as a dis­bursement in a review under the Legal Profession Act?

A: No. Those costs would have to be dealt with by the Provincial Court. A Registrar in an assessment would not have the jurisdiction.

Rule 44(13) Q: How should a party apply for a 12 month continuing Gar­nishing Order?

A: Pursuant to Rule 44(13), submit a precise and a draft Garnishing Order with the affidavit in sup­port. This affidavit should contain reasons for the necessity of a continuing order, along with the common statements. NB: Registries without Mas­ters should fax the application to the closest sitting Master for their approval.

Appendix B Q:Canregistrars allowGST and PST on party/party bills?

A: Yes. Rule 57 as amended April1, 1993, provides as follows:

(8.1) Where tax is payable by a party in respect of legal services, the registrar shall allow an additional percentage calcUlated on the monetary value of the units assessed equal to the percentage rate of tax payable in respect of legal services.

(8.2) Where tax is payable by a party in respect of disbursement, the registrar shall allow an additional percentage calculatea on the monetary value of the disbursements as assessed equal to the percentage rate of tax payable in respect of disbursements."

Rule 41(8) Q: Can a trustee in bankruptcy approve an order that was made prior to the date the party en­tered into an Assignment of Bankruptcy?

A: No. The order must be approved by the parties or their counsel unless the court dispenses with such approval:

Rule 41(8) "An Order of the court may be drawn up by any party, and, unless the court directs, shall be ap­proved in writing by all parties or their solicitors or counsel, and then with tli.e registrar to have the seal of the court affixed, but the order need not be approved by a party who has not consented to it and who did not attend or was not represented at the trial or hearing following which the order was made." []

If you have any interesting or unusual questions, please write directly to Joanne Power, manager registrar programs, Law Courts, 850 Burdett Ave., Victoria V6W 1B5.

15

A lawyerly reading - please! by lAird Hunter

The legal profession has long acknowledged that access to justice may be jeopardized by geography and poverty. Equal­ly important is a person's abili­ty to function with the written medium of justice.

In 1987, Canadians were star­tled by media reports on the state of adult literacy in Cana­da: 4.5 million Canadians could not read, write, or use numbers well enough to meet the de­mands of everyday life.

Other studies explored literacy from different perspectives. But what about law and access to justice? In 1990, the CBA es­tablished the Task Force on Le­gal Literacy. Its report, Reading the Legal World: Literacy and Jus­tice in Canada, was presented to National Council in 1992.

What did the Task Force learn?

From the literacy community

1. Virtually all legal material is written, and written in a man­ner peculiar to the legal system. This creates obstacles for people with limited literacy.

2. Adults with limited literacy are intimidated by the legal sys­tem and avoid initiating legal action.

3. Adults with limited literacy have difficulty using the legal system to protect their rights and may not even try.

From the legal community

1. More than 7 lawyers in 10 have had experience with a cli­ent or witness with limited lit­eracy.

2. Lawyers are not aware of the serious problems people with limited literacy skills have in undertaking the "search" that is central to using legal informa­tion and the legal system.

3. Lawyers presume a level of background competence in

identifying legal problems that people with limited literacy skill do not have.

4. While they try to accommo­date the needs of individual cli­ents with limited literacy skills, practitioners who were sur­veyed rely on adjustments to practice procedures that still presume an ability to deal with written material.

Task Force Recommendations

Our 26 recommendations fall into four areas: reading ability, legal context, the lawyer-client relationship, and the role of in­termediaries - those individu­als, groups and institutions that translate the information and meanings of the legal system to people with limited literacy skills.

Broader alliances between the legal community and those in­termediaries must be estab-

lished where required and strengthened where they al­ready exist.

Lawyers can not solve the gen­eral predicament of limited lit­eracy nor address many of the associated difficulties. None­theless, people whose reading and writing skills are limited should be able to use the law; the practical question is how to make this possible. Lawyers have an opportunity and are­sponsibility to recognize and deal with limited literacy as a problem of justice. C lAird Hunter, ll pgrtner with the Edmonton firm, Worton & Hunter, chllirtd the Task Foret 1111d cltllirs the nlltiorull CBA Public uglll Ed­~tion Omfrmtce.

Ckryl Stephens, ll B.C. Br1111ch Communica­tions Committee member, is currently investi­gllting wrzys to implement the Task Foret rec­ommmdlllions in British Columbill. Those interested in this project or in joining ll B.C. Chllpter of the Public Leglll EduCiltion Con~­ena can amtllct Stepheiis llt 739-0443 or B.C. Bmnch Communiclltions Dirtctor lArry Hnet­kllllt 687-3404.

British Columbia literacy programs offer services

Literacy B.C. 1128-510 West Hastings St., Vancouver V6B 1L8

Literacy B.C. is a registered, non-profit society with federal charitable tax status. It is an umbrella group for literacy organizations in British Columbia. Its mission is to: promote literacy, support learners, develop partnerships and networks, and present a united voice on literacy issues.

Adult Literacy Contact Centre (A project of the Adult Basic Education Association of B.C.· ABEABC) 622-510 West Hastings St., Vancouver V6B 1L8

The Adult Literacy Contact Centre was established in 1987by the Adult Basic Education Association of B.C. ABEABC is a registered, non­profit society with federal charitable tax status. The Centre gives informationandencoura~mentbyphonetoadultswhowanttoknow about adult basic education opportunities in their own communities throughout B.C. The centre also refers volunteer tutors to adult literacy programs.

Gzowski Golf Tournament set for Aug. 27, 1993 Literacy B.C. hosts the annual Peter Gzowski Golf Tournament to raise funds for literacy. The annual tournament will be held on Aug. 27, 1993 at Vancouver's University Golf Oub. The tournament fee of $175 includes a $130 tax receipt, golf gift, prizes and dinner. The toum~y is limited to 144 persons. Call687-5077 (FAX: 687-5076) for information about the Gzowski golf tournament for Literacy B.C.

16

PPSA Transition Reminder

All prior perpetual registrations of mortgages, liens and encum­brances filed in the Corporate Registry, Manufactured Home Registry and former Central Registry before Oct. 1, 1990 which have not been re-regis­tered at the Personal Property Registry prior to Oct. 1, 1993 in accordance with section 71 of PPSA, section 30 of the Sales of Goods Act, and section 53 of the Manufactured Home Act, will ex­pire.

For example:

Central Registry: Farm Credit Chattel Mortgage; Company Act FormS

Corporate Registry: Chattel Mortgage; Farm Credit Chattel

Mortgage; Conditional Sales Agreement; Assignment of Book Accounts; Debenture; Bill of Sale

Manufactured Home Registry: Chattel Mortgage, Conditional Sale, Lease; Tax lien

To continue their registered sta­tus, these interests must be re­registered on a Financing State­ment (Transition) in either pa­per or electronic format at the Personal Property Registry pri­or to Oct. 1, 1993.

For a copy of the Transition Re­minder, please contact the Per­sonal Property Registry, 940 Blanshard St., Victoria, B.C. VSW 3E6 (Tel: 356-0143). C

Directory early-bird offer extended to end of July

Order your copies of the 1994 B.C. Lawyers Telephone, FAX and Services Directory before the end of July and receive sub­stantial early-bird order dis­counts! Save even more by sending your payment with your order as all pre-paid or­ders include delivery within B.C.

The Directory is an official pub­lication of the CBA (B.C. Branch) and is widely used by the legal community as the list-

ings and information are accu­rate and up-to-date.

Law firm proofs are in the mail now and should be completed and returned by August 13, 1993 to ensure your listings are correct. An addition to the Di­rectory "blue" pages this year will be listings of non-practising CBA members including stu­dents, judges and affiliates. If you have questions about your listing, call Ruth Fraser at the B.C. Branch office 687-3404.

Canadian Bar Association (B.C. Branch) and

Law Society of B.C.

Annual Meetings Friday, September 10, 1993

Law Society building, 845 Camble Street 8:30 a.m. Continental Breakfast hosted by CBA (B.C. Branch)

:: 9:00a.m. Annual Meeting CBA (B.C. Branch) i.i 12:00 noon Annual Meeting of Law Society of B.C.

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Dates to Note

August 22 to 25 National CBA Annual Meeting Quebec City (Info: 613-237-2925)

September 10, 1993 Annual Meetings of CBA (B.C. Branch) and Law Society of B.C. 845 Cambie St. (note change of date from pre­vious listings)

September 11, 1993 CBA (B.C. Branch) Provincial Council Meeting Vancouver

November 25,1993 Bench and Bar Dinner Vancouver Law Courts Inn

BarTalk is published by the British Columbia Branch of the Canadian Bar Association, lOth Floor- 845 Cambie Street Vancouver, B.C. V6B 5T3 Tel: (604) 687-3404 FAX: 669-9601

Editor: Larry Hnetka, Commu­nications Director 687-3404 Legislation and Law Reform Of­ficer: Ann McLean (Victoria) 370-2234 SectionTalk Editor: Shelley Bentley, Melville & Yeung 685-3881

Alistair Eagle Photography (688-8867) is the CBA (B.C. Branch) official photographer.

©Copyright the British Co­lumbia Branch of the Canadi­an Bar Association-1993.

The B.C. Branch of the Canadian Bar Association represents over 7,500 lawyers within British Co­lumbia. The B.C. Branch is dedi­cated to improve and promote ac­C£ss to justiC£, to review legisla­tion, initiate lRw reform measures and advanC£ and improve the ad­ministration of justice. On behalf of the profession, the B.C. Branch works to improve and promote knawledge, skills, ethical stand­ards and well-being of members of the legal profession and promotes the interests of its members. []