Published by Law Courts Center
JULY / AUGUST 2015
Why Posting the Job for a SCBC Master Was a Good Move
ike a breath of fresh
air, last July 17,
2015, the Supreme
Court of BC posted this
notice on its site:
L
are 13 masters of the SCBC.
They can hear most
interlocutory (interim)
matters, but they cannot give
a final judgment.
master does, a list of qualifications, and requisite special
skills have now
provided the profession and
the public with clarity.
The Supreme Court of British
Columbia has an opening for
the position of Master. The
position is in Kelowna.
Interested applicants should
submit a resume and cover
letter in accordance with the
posting instructions by July
31, 2015.
Why this was a good move
The recent elevation of
Justice Young from her position as master would have
given need to replace her.
Access to Justice
The inclusion of this
requirement was equally
noteworthy: “A Master must
manage a busy chambers and
the expectations of the members of the bar and
self-represented litigants in a
fair, firm and balanced way,
taking into account access to
justice concerns.”
What is a master?
In the SCBC, depending on
the matter, court hearings
may be held before a master
or a judge. What masters can
and cannot hear is set out in
Practice Direction PD-42
found on the court website.
Judges can hear all court
hearings, while masters are
limited to applications and
some final orders (i.e. certain
types of judgments). There
Court watchers, like me,
have gotten used to the
practice of seeing a
signed Order in Council
announcing the appointment
of a new master. That is,
until I chanced upon the
notice on the court website.
Having gone through its
materials, I concluded that
there are three good things
about it: transparency, access
to justice and diversity.
Transparency
The posting included a seven
page description of what a
Frank Kraemer,QC the
executive director and senior
counsel of the SCBC
explained to me the
reference of access to
justice issues vis a vis
self-represented litigants:
“It's been a reality for some
time; however, this may
be the first time we have
articulated it in a posting.”
Diversity
As the posting was done
through the BC Public
Service, consideration to
diversity and inclusion was
recognized as well. Readers
were invited to read BC PS's
position on diversity. I expect
equity-seeking groups to
have taken advantage of
this openness to submit their
candidates.
Capacity postings are
encouraging, and its
potential development into
becoming the practice for
filling open master positions
is equally promising. !
Dom C. Bautista is the
executive director of Law
Courts Center. He returns to
co-teach Civil Litigation 102
on September 24/25 with his
fresh research to what has
been a busy summer for our
courts.
w w w. l a w c o u r t s c e n t e r. c o m
September 2
September 9
September 10
September 11
September 15
You can’t plead cute but you can send your staff to the
October 2 2015 Annual Paralegal & Support Staff Conference
Amici Curiae Paralegal Program Open House
Trust Accounting 102 (Live Webinar)
Tax on Legal Services 101 /102
Managing MVA Files 103
Lecture: Working With Women Who
Experience Violence Part 1
September 24/25 Civil Litigation 102
October 2
Annual Paralegal & Support Staff Conference
October 13
Lecture: Working With Women Who
Experience Violence Part 2
October 21
Part 7 Benefits 101
October 22
Medico Legal Terminologies 101
October 27
Diversity Dialogues: Practicing & Parenting
Judicial interpretation on the concept of proportionality
Proportionality. Considered the spirit of the current Supreme
Court of BC’s Rules of Court, what does it mean? Which brings
us to this case brief we once wrote about:
P
iso v. Thompson arose out of a motor vehicle accident
that occurred on October 5, 2003. Prosecution of this file
moved very slowly until May 2010 at which time
defence counsel served a Notice to Admit on the plaintiff. The
plaintiff failed to respond to the Notice to Admit resulting in his
admittance of the facts. As a result, the plaintiff brought an
application for an order allowing him to withdraw the deemed
admission of facts. The application was heard on November 24,
2010 in front of Master Caldwell, who gave his reasons on
December 6, 2010.
In his reasons, Master Caldwell noted that Rule 7-7 makes the
Notice to Admit available to, “increase efficiency in the conduct
of cases and to deal with matters that are not contentious and
should be admitted.” Defence counsel submitted that his intent
in serving the Notice to Admit was just that: to narrow the
issues or at least bring them to a head in order to move the file
along.
The Notice to Admit sought to have the plaintiff admit four
things:
• that he was involved in a motor vehicle accident on
October 3, 2003;
• that his injuries resolved by October 2005;
• that he suffered no past wage loss as a result of the
accident; and
• that he suffered no loss of capacity to earn income due to
the accident.
Rule 7-7(2) states that the truth of the fact or authenticity of a
document is deemed admitted unless the party in receipt of the
Notice to Admit serves a written statement denying the truth of
the fact or authenticity of the document within 14 days of being
served with the Notice to Admit.
capacity to earn income due to the accident, the plaintiff
eliminated two heads of damage entirely. 7-7(5) prevents a
party from withdrawing a deemed admission without leave of
the court.
In support of his application, the plaintiff swore an affidavit
stating that he never knew of the Notice to Admit; and, if he
did, he would have admitted to being in the accident but denied
the remaining assertions.
Both counsels and the court agreed that the tests to be applied
in an application to withdraw deemed admissions are as
follows:
• Was the admission made inadvertently or hastily?
• Has there been a delay in bringing the application to
withdraw the admission?
• Is there any issue worthy of being tried?
That all three requirements were met in this case was never
seriously disputed by the parties. Defence counsel argued that
this is precisely the type of situation which the “deemed
admission Rule” was intended to cover and to refuse to apply
the Rule would be to render it virtually useless. Defence
counsel further argued that there was no prejudice to the
plaintiff in allowing the admissions to stand since the plaintiff
had recourse against his original counsel in that he could bring
an action against his original counsel for professional
negligence in not properly responding to the Notice to Admit.
Master Caldwell granted the plaintiff leave to withdraw the
admissions stating, “Rule 7-7 does not, nor was it intended to,
create a trap or add an inescapable obstacle to ensnare or trip
up sloppy or inattentive counsel to the detriment of the parties
to the litigation.”
These admissions had the potential to seriously impact the
plaintiff’s claim. By admitting that his injuries were resolved by
October 2005, two years post-accident, the plaintiff abandoned
any argument that his injuries, pain, and suffering continued
longer, thus potentially reducing the amount of his nonpecuniary damages award.
Master Caldwell found that refusing to allow leave to withdraw
the admissions would deny the plaintiff his opportunity to have
his claim heard on the merits. In response to defence counsel’s
argument that the plaintiff had recourse against his previous
counsel Master Caldwell cited Rule 1-3(a) which sets out the
objective of the Supreme Court Civil Rules, which, for a long
time, has been to secure the just, speedy and inexpensive
determination of every proceeding on its merits. In essence,
Master Caldwell concluded that to refuse leave to withdraw the
admissions would force the plaintiff to bring an action against
his previous counsel to recover the same relief as in the case at
bar and to do so would be to, “[fail] to recognize further delay
and expense of such a claim. Ultimately, Master Caldwell
recognized that a second action would be a waste of the court’s
resources as well as the time and money of the parties involved.
By admitting that he suffered no past wage loss or loss of
To learn more, join us on September 24 and 25, 2015. !
In this case, plaintiff’s counsel admitted that, upon receipt of
the Notice to Admit, he put it in the file and forgot about it until
defence counsel served a notice of summary trial application
seeking judgment on the basis of the deemed admissions.
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A TWO DAY COURSE: SEPTEMBER 24 AND 25, 2015 (9:00 AM TO 5:00 PM)
Law Courts Center
Civil Litigation 102
T
his two day program is designed for juniors to gain an understanding of the civil
litigation process and its Rules. At the end of their studies, the attendees will be able
to put the theory into practice and they will have the tools to successfully assist in a civil
litigation file from start to finish.
“The explanations made a difference.
It is easier to have someone with
so much experience lay it all out rather
than just reading the Rules.”
For junior lawyers, solos,
paralegals and legal secretaries!
COURSE PREREQUISITE
There is pre-course work that will be assigned.
COURSE REPORTING FOR CPD
For those with CPD requirements, this course is 14.0 hours long with 1 hour
devoted to ethics, professional responsibility, ethics, client care and relations.
If you meet 70% of the course expectations, a Certificate of Completion is issued
to you.
LOCATION Law Courts Center CPD Room 840 Howe St #150 Vancouver BC
INSTRUCTOR Yvonne Choi, Legal Assistant, Harris & Company LLP
RESERVATIONS Please complete the form below and return to: Law Courts Center,
Legal Education Program, 150 - 840 Howe Street, Vancouver, BC V6Z 2L2.
Make cheques payable to Law Courts Center.
For more information please email <[email protected]>, or call
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2
F A M I L Y
L I T I G A T I O N
S T U D I E S
Family Law Orders Do’s and Don’ts (Vancouver Registry)
General Information
An Order is a ruling or
decision of the court
The court can make various
orders at different stages in a
family action, from before
an action has even started all
the way to after a trial has
been completed.
A court order is a ruling
made by the court
commanding a party to do
something (e.g. “A pays the
children of A & B $500
each month as child support
beginning on Jan. 1, 2015”).
It can also prohibit a party
from doing something
(e.g. “X shall not contact
Z without prior written
consent”).
Setting out the Order in
writing and filing it in
court
After a court makes an
order, a party (usually
the party who wins the
application or the trial) will
file an Order (see Appendix
A) at the registry. The
Order must be set out in
writing using the correct
form. It is then submitted
to the registrar. All family
orders are checked by the
registry and must be signed
off by the adjudicator. The
registrar will make sure that
the Order is complete and
the terms are accurate
before sending it to the
judge or master for
approval. Once it is
approved, the Order will be
issued and entered.
Practice Direction 26
This is Exhibit “ ” referred to in the
affidavit of .....................................
sworn before me at ......................
this ........ day of ............... 20 .......
........................................................
(“PD26”) provides direction
in relation to aspects of the
process for entry of orders.
It is important to note that
an Order becomes binding
on the affected parties as
soon as it is pronounced by
a judge or master (i.e.
before the Order is issued
and entered). However, for
the court to enforce the
Order, an Order must be
issued and entered. If a
party believes that another
party is acting contrary to
an Order, that party can
enforce the terms of the
Order by bringing an
application to the court
and proving that party is in
contempt of court. If the
court finds a party in breach
of the terms of the Order,
the court can make an Order
to fine or incarcerate the
party in contempt.
An Order must be issued
and entered before a party
can appeal it. !
Amici Curiae volunteer
Jimelle Gallagher helped
prepare this article. We wish
her well as she begins her
articles on September 2015.
A Commissioner for taking Affidavits
within British Columbia
Exhibit Stamp self inking
Family Orders
Vancouver Registry
Monograph $ 83.25
Table of Contents:
A. Essential components of
an Order
B. Types of Orders
C. Judicial Case
Conference Orders
D. Other documents
E. Processing time for
Orders
F. Top 11 Reasons why
Orders are rejected
Appendix A Sample Order
Appendix B Handouts
Family Chambers
Application
Procedures
Family Chambers
Application Procedures
$ 246.75
$55
Service of a true copy hereof admitted
on this ........ day of ............... 20 .......
........................................................
Family Law
Solicitor for ...............................
Service Stamp self inking
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Vancouver
Registry
Monograph
$50
Family Law 102
$ 246.75
Trial Preparation
for Family Law
Monograph
Trial Preparation for
Family Law $ 246.75
B! 201507/08
I
n preparation for the new
Amici Curiae Temporary
Foreign Workers
Uncontested Divorce clinic,
Jessie Sihota and Christine
Gordon, Deputy District
Registrars from the
Vancouver Law Courts
Family Registry presented
Do and Don’ts When Fling
Orders last May 12, 2015.
Joint Retainers and Undivided Loyalty — A Primer
T
rying to understand the role of
ICBC in an insurance claim can
still be a mystery specially for
new staff being asked to handle MVA
claims. And in BC, the tripartite
relationship is certainly a unique one,
specially when a defence lawyer acts for
two or more clients involved in the same
incident. Usually, the most cost effective
decision for the insurance company is
for each defendant to give his or her
consent to retain a single lawyer. The
joint retainer is shared between the
insurance company and the defendants.
Although not common practice, a
lawyer may represent two plaintiffs; the
driver/owner and the passenger.
One of the important concepts we teach
in class is that even though a joint
retainer exists, a lawyer should still be
acting in the best interests of both
clients. What happens when conflicts of
interest arise? Where is the duty of
loyalty?
In most motor vehicle accident (MVA)
actions, it is common practice for a
defence lawyer to act for two or more
clients. Usually, the most cost effective
decision for the insurance company is
for each defendant to give his or her
consent to retain a single lawyer. The
joint retainer is shared between the
insurance company and the defendants.
Although not common practice, a
lawyer may represent two plaintiffs; the
driver/owner and the passenger. Even
though a joint retainer exists, a lawyer
should still be acting in the best interests
of both clients.
Even after the initial conflict checks are
completed, additional conflicts may yet
arise. For instance, two people (an
owner/driver and a passenger) may
retain a single lawyer, but if the
passenger subsequently names the
owner/driver as a defendant, the lawyer
will not represent both parties. This is
the simplest example of a conflict of
interest. However, if the owner/driver is
not named as a defendant, a lawyer may
act for both plaintiffs in one action. For
defence files, law firms need to ensure
that they have not acted against any of
the defendants they have been retained
to represent.
It’s important to note that defendants
share their lawyer with the Insurance
Corporation of British Columbia (ICBC)
or the out-of-province insurer. The case
of Hopkins v. Wellington, 1999 CanLII
5583 (BCSC), 1999 B.C.J. 1164, states
the same duty is owed to the defendant
by the lawyer as if they were retained
personally. Although ICBC has
appointed the lawyer, incurs bills and
recovers costs, the defendant is still the
client and is owed a duty of loyalty.
“Loyalty includes putting the client’s
business ahead of the lawyer’s
business,” states R. v. Neil, 2002 SCC
70, [2002] 3 SCR 631 at para. 24.
Chapter 6 of the Professional Conduct
Handbook states that lawyers have a
duty of loyalty to every client, may act
for clients with opposing interests and,
with consent, act for clients where
“divided loyalties” may develop.
Accordingly, lawyers should explain the
concept of undivided loyalty to clients
and obtain their express consent to act
for them where a conflict exists. The
Handbook, which has been replaced by
the BC Code of Professional Conduct
for British Columbia, includes
commentary #6 for Code 3.4-2 which
states that implied consent is only for
exceptional cases and may depend on
the legal knowledge of the client.
Following the test set out in Macdonald
Estate v. Martin, 1990 CanLII 32
(SCC), [1990] 3 S.C.R. 1235, a lawyer
cannot act against his or her client,
whether past or present, if they possess
confidential information that may be
used against them in an action. Acting
against a former client may allow the
other party to hold a clear advantage and
access to personal and potentially
damaging information. Performing
conflict checks in your firm will limit
the possibility that you are acting
against a former client.
What action should be taken if the
defendant confides that they may have
been driving their car for work errands
without proper insurance? What if the
client has their learner’s licence and
states that they had driven the car
without an adult passenger, or more
distressing, they had consumed alcohol
before the accident?
A breach of insurance is usually
determined by ICBC before an action is
started and a lawyer is appointed as
defence counsel. The lawyer may have
to withdraw as defence counsel and ask
that ICBC appoint a new lawyer if the
defendant discloses prejudicial
information. Moreover, the lawyer does
not have to disclose the information or
action that lead to the conflict to ICBC.
All parties to the action will become
immediately aware of the conflict
should the prejudicial information be
disclosed at an examination for
discovery.
The same duty of loyalty is owed to
both plaintiffs and to defendants equally.
While many firms act for two or more
clients in the same matter, it is important
to have written communication as well
as verbal contact with each client so
they are aware of the lawyer’s undivided
loyalty. Conflict checks will also prevent
the firm from acting against a former
client, but the extent to which you acted
for that client may have to be assessed.
Hence you may be able to act against a
former client if no confidential
information was obtained or they were
seeking advice on a separate matter. For
that reason, understanding how an
action is commenced is key to managing
your accident files efficiently. !
WWW.LAWCOURTSCENTER.COM
150-840 Howe Street, Vancouver, BC Canada V6Z 2L2
SCHEDULE FOR SEPTEMBER 11, 2015 (9:00 AM TO 5:00 PM)
Law Courts Center • Canadian Paralegal Institute
MVA STUDIES 103
A FULL DAY OVERVIEW OF PERSONAL INJURY LITIGATION AND
THE KEY COMPONENTS TO PREPARING MVA FILES EFFICIENTLY
T
he current Rules of Court provide for a shorter time to get the pleadings ready. This is your
opportunity to master the mechanics of preparing your file binder, acquiring the needed
information in a timely manner, and initiating the chronologies of the claim; regardless of whether your
are acting for the plaintiff or defense. Acquire best practices from a seasoned paralegal. Learn to take
advantage of the Civil Rules of Court of the Supreme Court of BC.
Plus here are the other learning outcomes for this course:
1.
2.
3.
4.
5.
how to correctly calculate 6 different limitation periods associated with MVA files;
what information goes into Part 1, Part and Part 3 of a “motor vehicle” Notice of Civil Claim;
how to effectively utilize chronologies and treatment charts;
how to make redactions for privilege and irrelevance to clinical records; and
at least 5 best practices for preparing for a motor vehicle trial.
CONTINUING PROFESSIONAL DEVELOPMENT CPD REPORTING
For the mandatory Law Society of BC reporting of CPD hours, this course is 7.0 hours with no hours devoted to
professional responsibility and ethics. A Certificate of Completion is issued to you, if you earn at least 70% of
the course requisites.
LOCATION Law Courts Center CPD Room, 150 - 840 Howe Street, Vancouver, BC V6Z 2L2.
INSTRUCTOR Gerrie Campbell, Senior Paralegal
QUESTIONS? Please write [email protected] or call 604-685-2727.
Registration:
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Course Fees: (course materials and GST 128573300 included)
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3
H U M A N
R I G H T S
S T U D I E S
BC Human Rights Tribunal Rules on Discrimination and Injury to Dignity (1)
T
he work that the Amici
Curiae paralegals
perform sometimes
involve immigration and
human rights law. We found
this recent case of be of
interest: PN v. FR and
another (No. 2), 2015
BCHRT 60, a human rights
matter involving a Filipino
caregiver.
FACTS
• PN is a young mother
originally from the
Philippines and has two
children. She was hired
through an employment
agency to work in the
respondents’ home in Hong
Kong as a housekeeper and
caregiver to the respondents’
two children. She worked
for the respondents in Hong
Kong for about a year and
came with them when they
moved to Canada to continue
working for them. Part of
her income was used to
support her children who live
in the Philippines.
• While in Canada, the
respondents and PN stayed at
a hotel until the family home
purchased in Richmond was
made ready for them to
occupy it. They arrived in
Richmond on July 7, 2013.
• PN fled the hotel about six
weeks later.
B! 201507/08
Supple leather
brief cases
perfect for
chambers,
mediations or
trials!
• PN contacted the RCMP
and eventually stayed at a
women’s shelter for victims
of human trafficking.
• An earlier decision in this
proceeding dismissed part of
the complaint over events
that occurred outside of
Canada and was therefore
outside the Tribunal’s jurisdiction.
ISSUE
• PN complained that both
respondents, FR and MR,
have discriminated against
her on the basis of her sex,
family status, age, race,
ancestry, colour and place of
origin, contrary to section 13
of the BC Human Rights
Code.
FINDING
The respondents breached s.
13 of the Code in their treatment of PN. Virtually every
aspect of her employment,
including her contract, was
exploitation that amounted
to discrimination. The
respondents were ordered
to cease and refrain from
contravening of the Human
Rights Code. For lost wages
(during her time in Canada
but not during the time
after she fled) and injury to
dignity, PN was awarded
$55,866.89.
REASONS
Grounds of discrimination
The Tribunal looked to
Radek v. Henderson
Development (Canada) Ltd.,
2005 BCHRT 302, to analyze a case where multiple
protected grounds of discrimination intersected. As
in Radek, the Tribunal in
this case held that the
grounds of discrimination
(race, colour, ancestry, family status, sex, age) cannot be
separated out and parsed on
an individual basis because
the complainant is an integrated person with characteristics protected under the
Human Rights Code. As the
complainant’s expert opined,
it is this combination of
characteristics that are promoted by the likes of the
employment agency
described below.
An expert report was submitted to describe the stereotypes and prejudices of
Filipino workers, especially
in Hong Kong. The expert
testified that Filipino women
are perceived to be “naturally inclined” to perform
domestic care work. She
also said that it is widely
documented that stereotypes
and prejudices contribute to
or exacerbate the exploitation or abuse of Filipino
domestic workers and that
employment agencies act
and perpetuate these stereotypes and prejudices.
Employment agencies, such
as the one PN was hired
through, question Filipino
workers about time management, curfew hours, physical
appearance with respect to
clothing, hair, makeup, personal hygiene and willing-
ness to move with their
employers. These questions
functioned to propagate the
perception that Filipino
workers serve the whim of
their employers. The
employment agency that PN
was hired through sought
similar answers from PN.
The Tribunal member found
that the respondents’ expectation to have PN at their
beck and call have their
roots in her hiring from the
Philippines and the factors in
hiring emphasized youth,
hard work, and unlikeliness
to complain. These characteristics were attributed to
Filipino workers by stereotype and prejudice. This
amounts to discrimination
based on age, race, ancestry,
colour and place of origin.
The Tribunal member found
that PN endured sexual
assaults repeatedly at the
hands of FR. The respondent FR did not deny that he
engaged in the sexual
assaults nor did he crossexamine PN on her evidence
about the assaults. A counsellor at the shelter testified,
and the Tribunal member
was satisfied with the evidence given, that PN showed
signs and symptoms of
being traumatized. When
asked by the Tribunal member to differentiate the harm
PN suffered in Hong Kong
and that of Canada, the
counsellor said that PN’s
condition was more fragile
as a result of what happened
in Hong Kong and therefore
more susceptible to harm. !
Sharon Allegrini’s case brief
concludes next month. She is
a paralegal at Bull Housser
Tupper LLP.
L AW C O U R T S C E N T E R
A MICI C URIAE E VENING L ECTURE S ERIES
September to October 2015
Tuesdays @ 5:30 to 7:00 pm
A lecture series devoted entirely to looking for ways
to work with Self-Represented Litigants
The Face of a Self-Represented Litigant September 2, 2015 (ACL OH2015)
As part of Amici Curiae’s Open House, we are hosting this lecture to paralegals who are curious about how
paralegals assist self-represented litigants. Listen to a self-represented litigant speak of their experience.
Hear a judge of the Supreme Court of BC speak about SRLs. Plus, our managers will talk about our five
clinics. This is a free event for paralegals who have at least two years experience in litigation in BC.
Working with Women who Experience Violence Part 1: Understanding Power and Control
September 15, 2015 (ACL BWSS1)
Lecturers: Rosa Elena Artega, BWSS Manager of Direct Services and Clinical Practice and Vicky Law
BWSS Advocate
The purpose of this training would be to have a better understanding of the dynamics of power and control
in an abusive relationship. In addition to recognizing the importance of working from a decolonizing and
intersectional framework, the training will also address systemic oppression. Tools and strategies will be
explored on how to work with women who experience violence in an anti-oppressive perspective.
CPD 1.5 hour including 1.5 hours for professional responsibility and client relations.
Working with Women who Experience Violence Part 2: Family Law & Affidavit Writing
October 15, 2015 (ACL BWSS2)
Lecturers: Vicky Law BWSS Advocate and a family law counsel
The purpose of the second part of the training is to explore how the Family Law Act interprets “family
violence”. The training will also speak to the importance of addressing family violence within a family law
matter. In addition, the skills-based workshop will highlight tools on how to write affidavits with women
have experienced violence.CPD 1.5 hour including 0 hours for professional responsibility and client
relations.
RATES: (any materials will be provided electronically and taxes included) GST R128573300
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British Columbia Civil Litigation Guide
DESK REFERENCE MANUAL VERSION
9.1
PLUS MATERIALS ON WORKING WITH SELF-REPRESENTED LITIGANTS
Table of Contents
1. Introduction
2. Systems (Administrative)
3. Small Claims Court
4. Service and Limitation
Periods
5. Commencing a Proceeding
6. Discovery
7. Document Disclosure
8. Chabers Applications
9. Trial Preparation
10. Experts
11. Summary Trials
12. Fast Track Trials
13. Case Planning Conferences
14. Trial Management
Conferences
15. Settlement Considerations
16. Bill of Costs
17. Alternatives to Trial
What our subscribers
say about our manuals
ABOUT THE AUTHORS
‘‘
This manual is the result of a collaboration of efforts of senior paralegals including: Charlene
Andrew, Kate Austin, Roxanne Fonagy, Dee Rogers Lenise Rouse, Pat Terlecki, and Nancy
Vianello.Through their collective experience as paralegals, they have combined their knowhow to
write the most complete and easy-to-understand procedural manual on civil litigation in British
Columbia.
Cheryl M. Stephens, LLB has provided substantive guidance, plain language advice, and editorial
assistance.
The manual is a
very good
reference tool.
The checklists
and flowcharts
are extremely
beneficial.
’’
Managing Editor: Dom C. Bautista
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Please feel free to examine our BC Litigation Guide Desk Reference Manual for 14 days. If you
are not satisfied, just return the undamaged Litigation Guide.
‘‘
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A Desk Reference Manual Designed in an Easy-to-Use Format!
Written in plain language
Organizing the Trial
The most important thing to remember about preparing for trial is that you
must be organized. Everything at a trial happens on a tight schedule from the
moment you obtain a trial date until the day you collect your files to leave the
courtroom. Preparation needs to be timely, efficient, and stress-free.
A focus on Self-Represented Litigants
More than any other part of the litigation process, trial preparation involves
paperwork. You prepare books of documents and pleadings, briefs of argument
and case law, read-ins of examinations for discovery and interrogatories, lists of
Working with Self-Represented Litigants
witnesses, exhibits, accounts, files, numbers, and tax returns. Once you have
prepared the lists of documents, you will have to pull and prepare briefs of the
More people are deciding to represent themselves in order to save on legal fees.
listed documents.
Working with self-represented litigants, who often do not have the years of
education, knowledge of the system, and experience in the field of law, requires
the adoption of many best practices.
Flowcharts that include the authority
Any self-represented litigant may not understand that it is a conflict of interest
for you to act for them, as well as your own client. Once it is clear that a party
is acting on their own behalf, a letter should be sent confirming that you act
only for your client, that you cannot provide the self-represented litigant with
any legal advice whatsoever, and that you cannot assist them with their case.
You may also wish to suggest that they seek independent legal advice so that
they understand what their rights and obligations are.
Appendix L.2 Fast Track Litigation Flowchart
You may wish to provide a self-represented litigant with some resource
Step
Process
information, such as the address for the Supreme Court’s website
(www.courts.gov.bc.ca) and suggest they refer to that site for assistance. The
STEP 1 Issue Notice of Civil Claim pursuant to Rule 15-1,
Justice Access Centre in Vancouver and Nanaimo (and soon in Victoria) provide
The action must be for a value of $100,000 or less.
free legal information through their Self Help and Information Services, and in
Include the words Subject to Rule 15-1 under the
some circumstances legal advice may be available. They may also be eligible
style of proceedings
for free legal advice through the Access Pro Bono Society of BC whose website
i
Or
Determine after initial pleadings have been issued
that proceeding is appropriate for Rule 15-1. File a
Notice of Fast Track Action in Form 61.
negotiations, mediation, arbitration.
A
Practice tips in every section
STEP 2 Within 35 days after the end of the pleading period
prepare and serve a list of documents and copies of
all documents on all parties of record.
A written record should be kept of exactly what each of you said, S
Material
facts are those facts which are essential to prove a cause of action or
n
defence. The evidence to support those material facts should not be put in the
pleadings. Material facts do not include law – whether principles of common
law or public
statutes.
They may
insist that all communications be made in writing by way of
Rule
15-1(1) & (2)
7-1(1)
Specially designed charts and flowcharts designed to
make your work easier
l
That way the written communications can later be
rAllegations of fact should be straight-forward, concise, specific, and clearly set
out the material facts.
New Civil Rules
Chambers Application Supplemental Flowchart
Evidence, adjectives, opinions, and observations are not to be included in
pleadings.
1. Applications taking more than 2 hours:
- contact Supreme Court of BC Scheduling office and obtain available dates,
Be attentive to the circumstances of the specific case and claim when
using precedents and adapt the precedent to fit the specific case.
Frivolous claims and allegations should never be included in
1 pleadings
because they confuse and clutter the issues, and deter one from reaching
a swift and early conclusion to the true claims between the parties.
W
- not mandatory but advisable - confer with opposing counsel as to
their availability for the dates obtained from Scheduling office,
and
by the
p
- when a date is decided upon, prepare your Notice of Application (Form 32)
and proceed according to the flowchart.
2. Short Notice Applications:
- prepare the main Notice of Application (Form 32) and Affidavit;
- prepare the Requisition (Form 17)
- file the original Requisition (Form 31), Notice of Application and Affidavit and
proceed to chambers
- proceed according to the order(s) made by the judge or master pursuant to
Rule 8-5(4) with respect to notice/service of the application materials
Volume 1 Table of Contents
British Columbia Civil Litigation Guide
General Table of Contents
Volume 1
Section A Introduction
Section B Systems
Section C Small Claims Court
Section D Limitation Periods, Service and Delivery
Section E Commencing a Proceeding
Section F Discovery Process
Section G Document Disclosure
Section H Chambers Application
i.1
BC Civil Litigation Guide
Volume 1 Table of Contents
British Columbia Civil Litigation Guide
General Table of Contents
Volume 2
Section I Trial Preparation
Section J Experts
Section K Summary Trials
Section L Fast Track Litigation
Section M Case Planning Conferences
Section N Trial Management Conferences
Section O Settlements
Section P Bills of Costs
Section Q Alternatives to Trial
Section R Judgments and Executions
BC Civil Litigation Guide
i.2
4
T R U S T
R E G U L A T I O N S
3 Important Lessons from the Law Society of BC
Suspension of Mr Faminoff
T
here are many lessons
to be learned from
the March 26 2015
Law Society of BC ruling
against William Faminoff
who had to answer eight
allegations of professional
misconduct stemming from
his having backdating
statements of account and
having improperly handled
his client's trust funds. The
steps that Faminoff took to
mitigate his situation is
notable, but here are the
three that I picked.
Lesson # 1 An egregious
act has no gradation.
I like to say that the
accounting principle of
materiality has no place in
trust accounting. I now add
that there is no difference in
bad act. The ruling ruled:
[28] The Panel,
considering the
Respondent’s misconduct on
a global basis of all the
allegations proven against
him, does not agree that
there is a qualitative
difference in his actions
that would lead to a conclusion that they should be
considered less serious.
Lesson #2 Assessing errors
goes beyond the specific
victim.
In Faminoff’s case, the
victim was ICBC. The
disciplinary panel found:
[47] The Respondent’s
failure to comply with the
trust and accounting Rules
and breaches of undertakings did not involve misappropriation of funds. There
were no victims. Nor was
there any misappropriation
of funds in respect of the
Respondent’s intentional
misleading of the Law
Society in connection with
the compliance audit.
Nonetheless, in considering
the law society’s mandate to
protect the public interest,
[27] The Law Society
submits that, while the
Respondent’s breaches of
undertakings did not result
in any losses to ICBC,
the breaches were not an
isolated incident, but rather
an ongoing course of conduct suggesting a cavalier
attitude toward undertakings on the part of the
Respondent. It further
submits that any breach of
an undertaking is a serious
matter.
New Titles in our Bookshelves
Lesson #3 A lawyer’s
prior disciplinary record
can increase their future
sanctions.
Members should remember
that their history of bad conduct affects how hear panel
reviews a complaint. In Law
Society of BC v. Batchelor,
2013 LSBC 09 at para. 48:
The Respondent’s prior
disciplinary record is an
aggravating factor that
requires an increase in the
sanction to be imposed
beyond the range of the
sanctions imposed for similar misconduct by members
without a disciplinary history. This increased sanction
would be in accordance with
the principle of progressive
discipline, the need for specific deterrence and the need
to ensure public confidence
in the legal profession.
In the case of Faminoff:
[42] This is particularly
so when the Respondent’s
previous conduct, while not
exactly the same, did involve
findings of false representations and a failure to disclose the true facts to his
firm. Those findings were
similar in nature to the findings of this Panel that the
Respondent intentionally
misled the Law Society. It is
also an aggravating factor
that the Respondent has had
two similar findings against
him during his career. !
Dom Bautista is co-presenting
To Kill a Mockingbird
Go Set a Watchman
Trust Accounting 101 on
September 9, 2015; and Tax
on Legal Services on
September 10, 2015.
Legal Education
Trial Brief Preparation
Legal Printing &
Legal Supplies
legalpresents.com
B! 201507/08
Briefly! is intended
to provide information
on new developments
in litigation and law
practice management.
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contact Dom Bautista
at 604.685.2727 or at
[email protected]
Law Courts
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Vancouver V6Z 2L2
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Now Available $22
SCHEDULE FOR SEPTEMBER 10, 2015 (10:00 AM TO 1 PM)
IN-PERSON OR BY WEBINAR
Law Courts Center
Tax on Legal Services – GST and PST
These are learning outcomes for this half-day seminar
1) recognize situations in which both GST and PST could apply;
2) know how the GST/HST applies to disbursements before July 1, 2010, between July 1, 2010
and March 31, 2013, and after March 31, 2013;
3) understand the basics of how the PST applies to purchases of legal services;
4) understand how PST applies to fees, charges and disbursements;
5) understand how legal services provided under contract is regulated by PST Exemption &
Refund Regulation s80;
6) understand the division of legal services provided within and outside of BC based on the PST Act
sections 126 & 127;
7) understand what GST and PST audit process is; and
8) access tools and information to help your firm comply with GST/HST and PST.
Seminar agenda:
10:00 CRA
10:30 Ministry of Finance
11:00 Break
10:45 Developing best practices to be audit ready
11:30 Q&A: joint panel
12:45 Review
CONTINUING PROFESSIONAL DEVELOPMENT CPD REPORTING
This course is an elective in Canadian Paralegal Institute’s Qualified Paralegal Program in Civil Litigation.
For your mandatory reporting of CPD hours, this course is 2.75 hours with 2.75 hour devoted to professional
responsibility and ethics, and client relations.
LOCATION Law Courts Center 150 - 840 Howe ST Vancouver BC V6Z 2L2
INSTRUCTORS:
CANADA REVENUE AGENCY AND MINISTRY OF FINANCE
DOM BAUTISTA Law Courts Center Executive Director
Registration:
WWW.LAWCOURTSCENTER.COM
Course Fees: (seminar materials and GST 128573300 included)
q Single In-Person Seat (TLS 101)
$288.75
q Single Webinar Seat License (TLS 102)
q Please send me the link to the recorded session as I am not able to attend.
$288.75
$288.75
1508 B!
Law Courts Center
150-840 Howe Street, Vancouver, BC Canada V6Z 2L2
PST and GST FAQs for BC Law Firms
Having recently passed the first year on the return of PST in BC last April 1 2013, we have updated our tax FAQs
monograph originally published in May 10 2013. A number of CRA related questions have been added to this
monograph. v150810
The digital monograph is priced at $183.75 (includes GST). To order a copy, write [email protected].
Sample List of Questions
A. General Questions
A.1. What is the definition of 'legal services' for the purpose of collecting PST?
A.2 What are the general anti-avoidance rules?
A.3 How are we to handle bad debt write offs?
B. Collecting taxes for legal service
B.1 Do we charge PST on every invoice?
B.2 Is there a guide to determinate whether or not contingency files require PST to be charged?
B.3 If a business invoices for work-in-progress (WIP) that includes goods and services preceding the date
PST took effect, how is that handled (ie fixed contract price)?
B.4 Do you have a definition for "carries on business in BC" includes businesses that, other than a
Registered Records office, have no other presence in BC, with supporting documentation.
B.5 Place of Supply rules and PST - if we have a client that lives in Ontario, do we bill the client HST at 13%
and PST at 7%?
B.6 If a lawyer provides legal services to a client who resides out of British Columbia, when are such
services subject to PST?
C. Disbursements: the impact of taxes
C.1 Will PST apply to all items as it does with HST (i.e. meals, children's items and previously non-taxable
disbursements)?
C.2 Are disbursements incurred in the course of providing legal services subject to PST?
C. 3 Could you provide more information outlining "Disbursements" and "Non Taxable Fees" and charges and how a
'mark-up' would be determined/calculated? How are you determining the "reasonableness" of photocopying / printing /
faxing charges? Is there a guide to determination of whether or not costs are "reasonably related" to the "transmission,
printing or copying of documents" can include: equipment lease, equipment maintenance, paper, toner, and labour?
Appendix 1 Tax on Legal Services CRA Powerpoint December 9, 2014
Appendix 2 Tax on Legal Services PST Ministry of Finance Powerpoint December 9, 2014
v1508
FOR OTHER RESOURCES: (INCLUDES HST #128573300)
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Law Courts Center
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