BC Take Five September 2010

OnPoint Legal Researcht. 604-879-4280

www.onpointlaw.com

Our Upcoming Legal Research Course- p.2Defamation- p.5Civil Procedure; Leave to Appeal- p.7Judicial Review; Evidence- p.8Estates; Wills; Revocation- p.9Statutory Interpretation; Mining- p.11Who is OnPoint?- p.12

September 2010

BRITISH COLUMBIA EDITION

Inside this Issue:

Welcoming Autumn.

604.879.4280 | [email protected]

And the winner is...Thanks to all (and there were many...) who entered last month’s PinPoint contest featuring the London City Hall. The winner of the $100 gift certificate to the restaurant of her choice is Elyssa Lockhart of Lockhart Law Corporation.

Earn 6 CPD CrEDits

inCluDEs 1 hour EthiCs ComPonEnt


22

Who should attend?Senior lawyers wanting to be updated on the lastest techniques

Junior lawyers aspiring to become better researchers

Articling students looking to start off their careers with valuable tips from research specialists

Paralegals wishing to improve their research skills

OnPoint has been researching for other lawyers for over 10 years. In this second annual presentation of this course, we will draw from our experience to demonstrate how to

map out research strategies, examine which resources to use to tackle various problems, and navigate through electronic sources. We will provide countless “insider” tips, discuss legislative research techniques, and walk though a sample issue, from start to finish.

Ellen Vandergrift, OnPoint Legal Research- Ellen has a winning combination of a keen analytical mind, a clerkship with the Alberta C.A., litigation experience at Fraser Milner, and a drive to keep digging until she finds the right answer. If it’s out there, Ellen will find it! You will learn from her years of experience when to use what resource and how best to use it.

Our Panel Knows ResearchChair: Sarah Picciotto, Founder of OnPoint Legal Research

Susan Caird, McCarthy Tétrault LLP - Susan has over 10 years of law library experience. She has recently joined McCarthy Tétrault after a lengthy stint as a librarian and Manager of Reference Services at Courthouse Libraries BC. Over the years, Susan has tackled her share of tricky legislative queries. During her presentation, she will answer some of the most common questions asked of her by lawyers and articling students.

Efrat Arbel, OnPoint Legal Research- Efrat served as a clerk to the British Columbia Supreme Court before practising with Fasken Martineau. She is currently a research lawyer for OnPoint and a Doctoral Candidate at Harvard Law School. Efrat will show you how to strategically map out a research plan and effectively present results to clients, other lawyers, and the court.

Legal Research: From Problems to Solutions 2010

mailto:[email protected]


33

Agenda8:30- 9:00- Registration and Continental Breakfast

9:00- 9:10- Welcome from Sarah Picciotto, Founder of OnPoint

9:10-10:00- Efrat Arbel- “Preparing for the Trek” - Determining the end goal to ensure you head down the right path - Considering your audience in constructing the journey - The importance of getting the proper facts, instructions, and scope of the research

10:00-10:45- Ellen Vandergrift- “Starting Out on the Expedition and Staying on the Right Course” - The importance of paper and online secondary materials in legal research (texts, digests, encyclopedias and course materials) - Tips on the best secondary sources to use and how to make the most of them - Making good research choices- when to stop, when to take a different path, when to check back with the client or supervising lawyer

10:45- 11:00-Coffee break (with pastries)

11:00- 12:00-Ellen Vandergrift- “Navigating the Electronic Terrain” - Insider tips from a research lawyer who performs computer research every day - Cost-efficient uses of electronic resources - Pointers on when to use which resource for what task - Tips on how to construct effective searches and manage search results - Noting up as an essential research tool - Important resources for keeping current

12:00- 1:30- Lunch (on own)

1:30- 2:30- Susan Caird- “The Legislative Research Journey Made Painless” - Tracing legislation back to original provisions - Locating judicial consideration of legislation using different methods and sources - Ensuring legislation is current and in force - Using free and for-fee electronic sources and useful print materials - Pitfalls of legislative research and how to avoid them

2:30- 3:30- Ellen and Efrat- “Showing Someone Else the Way” - Keeping notes for future research or to defend research choices - A review of our Research Checklist - How to best create the product for another lawyer, a client, or the court 3:30- 3:45- Coffee break (with goodies)

3:45- 4:30- Ellen Vandergrift- “Time to Take the Plunge: A Sample Research Issue, Step By Step”

Earn 6 CPD CrEDits

inCluDEs 1 hour EthiCs ComPonEnt



44

Course Registration Form

Program Name: Legal Research: From Problems to Solutions 2010Date: November 25, 2010- 9:00 to 4:30 (continental breakfast starts at 8:30)Format: Live Program with MaterialsLocation: TBD, Vancouver Early Bird (paid before Oct.28): Regular: $425; Student $250 After Oct.28: Regular: $495; Student: $295 SURNAME GIVEN NAME INITIAL

FIRM NAME ADDRESS POSTAL CODE

PHONE FAX EMAIL

Position: SOLE PRACTIONER PARTNER ASSOCIATE STUDENT PARALEGAL

OTHER _____________

Year of Call: ______

o Early Bird Student-------------------------------$250 + $30.00 HST = $280.00

o Student ------------------------------------------- $295 + $35.40 HST = $330.40

o Early Bird Regular ------------------------------ $425 + $51.00 HST = $476.00

o Regular --------------------------------------------$495 + $59.40 HST = $554.40

I’m paying by: Cheque Money Order Credit CardCard Type: Visa MasterCard

CARDHOLDER NAME CARD NUMBER EXPIRY

SIGNATURE

By Fax: By Mail: By Phone:

604.648.8930 OnPoint Law Corporation, 178-2498 W.41st Ave, Vancouver, BC V6M2A7 t: 604.879.4280

O N P O I N TLAW CORPORATION

op



55

Save Time.

Save Money.

Outsource to research specialists.

Our research lawyers all

have experience as litigators with major firms and have completed clerkships in B.C. or Alberta.

Monument Mining Limited v. Balendra Chong & Bodi, 2010 BCCA 373

Area of Law: Defamation Under Appeal: Justice Satanove

The appellant company is a publicly traded

Canadian company with an interest in a mine in Malaysia. The respondent Malaysian law firm sent the appellant’s solicitor a letter alleging that the mine was in fact owned by its client or was in the process of being sold. The letter also alleged that the appellant was deceiving and misleading public investors and that the company failed to disclose ongoing litigation in Malaysia to investors. The appellant sought damages for defamation and slander of title. The respondents obtained an order

pursuant to Rule 19(24) striking out the entire action as disclosing no reasonable claim. The chambers judge determined that the letter was intended as notice to the appellant that two of its directors were acting improperly, and that the words complained of could not constitute defamation against the company itself.

BACKGROUND CLICK HERE TO ACCESS THE JUDGMENT


http://www.courts.gov.bc.ca/jdb-txt/CA/10/03/2010BCCA0373.htm



66

Deponent’s office not near yours?

Witnessing affidavits of doctors, engineers,

or any busy professional.

Send our mobile lawyers to them.

One flat rate includes attendance at deponent’s office to witness signature, mileage, parking, and courier delivery to your office of completed documents.

Tel: 604-879-4280 Email: [email protected] Fax: 604-648-8930 Website: www.onpointlaw.com

Monument Mining Limited v. Balendra Chong & Bodi (cont.)

The appeal was allowed. The chambers judge

correctly identified the proper legal test in a defamation action as being whether the words were “reasonably capable of bearing the defamatory meanings alleged” rather than whether the words were actually defamatory to the plaintiff. However, an action to strike pursuant to Rule 19(24) requires the chambers judge to determine whether the

plaintiff has an arguable case. As such, the test for such a motion is whether or not it is plain and obvious that the words in issue could not be defamatory. The Court identified several statements in the letters that could lead a reasonable investor to believe the appellant company was improperly run or run by dishonest people. The Court agreed with the appellant that it was “conceivable” that a reader of the letters would view the appellant in a negative light. The Court

also found that the slander of title claim was arguable and ought to proceed as the allegations that the appellant did not own the mine could reasonably be understood as disparaging its title to the property.

CLICK HERE TO ACCESS THE JUDGMENT

APPELLATE DECISION





77

The parties disputed over whether the respondent daughter owned a piece of property in trust for her mother, the applicant. The applicant began litigation

in 1995, shortly after which the action stalled until the respondent brought an application to dismiss the action for want of prosecution pursuant to Rule 2(7) of the Supreme Court Rules. The chambers judge considered the test for dismissal pursuant to Rule 2(7), concluding that the delay was inordinate and inexcusable and caused prejudice to the respondent.

Brenner v. Brenner, 2010 BCCA 387

Areas of Law: Civil Procedure; Appeals; Leave to Appeal Under Appeal: Justice Dorgan

Leave to appeal was granted. One justice of the Court sitting in Chambers heard the application and considered whether leave to appeal the dismissal

was required, and if so, whether the facts of the case met the test for leave. On the issue of whether leave was required for the appeal of a Rule 2(7) dismissal, the judge drew a distinction between matters of practice and procedure and determinations of substantive rights between the parties. The Court of Appeal Act requires leave on matters of practice and procedure, and prior jurisprudence

indicated that appealing a Rule 2(7) dismissal is a matter of practice and procedure. The judge confirmed that resorting to the common law test for distinguishing between interlocutory and final matters was not required because of the legislative intervention of the Court of Appeal Act and the Supreme Court Rules. The controlling factor in the determination of whether a matter is characterized as one of practice and procedure or as a substantive determination is the principal object of the action. The Court must look at what the order or application achieves rather than whether it is classified as an “order” or an “application”.


APPELLATE DECISION

BACKGROUND





88

The Human Rights Tribunal heard a human rights complaint by the applicant union against the respondent employer. The Tribunal upheld the complaint and ordered the respondent to pay compensation. During the hearing, the employer requested either the presence of a court reporter or to have the proceedings recorded as part of the official record. Both requests were denied. The Tribunal finally permitted the hearings to be recorded, but not as part of the official record, and transcripts were to be provided to all parties. The

SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611, 2010 BCCA 371

Areas of Law: Administrative; Judicial Review; Evidence Under Appeal: Judge Saunders

employer petitioned for judicial review on two substantive grounds and also claimed that the Tribunal had breached the principles of natural justice by not permitting the hearing to be recorded. In support of the petition for judicial review, the employer’s affidavits contained transcripts of the proceeding. The union brought a motion to have the transcripts excluded from evidence and Goepel J. denied the motion. The union sought leave to appeal which was denied. The union applied to a panel of three justices for a variation of the order.

BACKGROUND

Engineers and Scientists specializing in

Transportation

Injury Biomechanics

Product

Property

Aviation

www.meaforensic.comMEA is an approved Continuing Education provider at the Law Society of BC.

APPELLATE DECISION

The application to vary was allowed. The chambers judge had held that there were arguable and important issues raised by the proposed appeal. In light of this finding, the chambers judge erred by not granting leave even though an appeal on a procedural point in the midst of a proceeding is unusual. On judicial review, the court considered the two sides to the issue. On the one hand, if parties seek judicial review challenging a patently unreasonable finding of fact, the reviewing court should be able to consider the evidence in order to make a proper finding. On the other hand, the efficient and expeditious settlement of disputes weighs against permitting the admission of privately produced tribunal transcripts, particularly in light of the deference a reviewing court must give to tribunals pursuant to the Administrative Tribunals Act. The court decided that an appeal on this issue should proceed so as to answer the question of the evidentiary record available to reviewing courts.

BACKGROUND



http://www.courts.gov.bc.ca/jdb-txt/CA/10/03/2010BCCA0371cor1.htm

http://www.courts.gov.bc.ca/jdb-txt/CA/10/03/2010BCCA0371cor1.htm

The appellant solicitor and trustee prepared a will for the testator prior to his marriage to the

respondent. The will included specific references to the respondent as the testator’s spouse and left her a spousal trust. The appellant admitted to erring by omitting an explicit reference to the upcoming marriage to ensure the will survived the marriage, pursuant to sections 14 and 15 of the Wills Act (the “Act”). The testator died shortly after his marriage. The appellant petitioned the court and the chambers judge concluded that the language in the will was not a declaration of intent by the testator to marry the respondent within the meaning of the Act. The result was that the will was revoked by the marriage.


99

MacLean Estate v. Christiansen, 2010 BCCA 374

CLICK HERE TO ACCESS THE ENTIRE JUDGMENT.

BACKGROUND

Areas of Law: Estates; Wills; Revocation by Marriage Under Appeal: Judge Pitfield

OnPoint Research Lawyers:

Prepare facta

Draft memoranda

Create briefs

Prepare pleadings

Conduct statutory research

Prepare quantum assessments



www.courts.gov.bc.ca/jdb-txt/CA/09/02/2009BCCA0294.htm

www.courts.gov.bc.ca/jdb-txt/CA/09/02/2009BCCA0294.htm




1010

MacLean Estate v. Christiansen (Cont.)

The appeal was allowed. Section 15 of the Act

operates to save a will from invalidation by marriage so long as there is a declaration within the will of the intention to marry. The provision must be interpreted in light of the modern principles of statutory interpretation and in accordance with the ordinary meaning of the words. The Court concluded there must be a written statement within the document that refers to a subsequent marriage but a formal statement is not required in order to trigger section 15. The Court concluded that the word “spouse” in the will is ambiguous because it may refer either to a legally married person or to a person living in a marriage-like relationship such as the one between the testator and the respondent at the time the will was executed. The ambiguity in the will meant that extrinsic evidence was admissible to determine whether or not the will was made in contemplation of marriage and thus survived

Records and DocumentationIf you are carrying on a business, you are required to keep adequate records that provide sufficient details and support to determine how much tax you owe. Estimates and incomplete information are not acceptable to CRA. In this regard, I refer you to CRA’s Guide RC4409 Keeping Records, which can be found on CRA’s Website.

A CompanyAnother way to do business is through a company. A company is a separate legal entity that can undertake to do business and own property in its own name. A company has its own requirements to file tax returns, pay taxes, and meet other obligations. A company pays tax at different rates than does an individual proprietor.

There may be circumstances where it is tax-efficient to do business through a company or where liability issues make incorporation a prudent choice.

There are costs associated with incorporation, however. Before making a decision, you should carefully consider the costs of incorporating and carrying on an incorporated business and compare them to the benefits that would be gained by doing so.

Professional advice is recommended to assist you in making this assessment.

CautionThis article is not intended to provide a complete summary of issues and requirements relating to individuals in business; it highlights a few preliminary considerations. The comments provided herein are based on information available at the time of writing and are general in nature. We recommend that individuals consult their own tax advisors before acting on information contained in this article, to ensure that their own specific circumstances and current tax legislation are taken into account. s

Kathryn G. Edwards, CA, is a Partner with Pagnanini Edwards Lam Chartered Accountants.

[email protected]

Estate Litigation

I can help.

• PastPresident,TLABC

• PastChairWills&TrustsSection,CBA

• Over36yearsoflitigationexperience

TrevorToddWills

EstatesEstate Litigation

ReferralsWelcome.

P | 604 264-8470 www.disinherited.comE | [email protected]

Better care for a better life

Home care designed especially for you

• Nursing• Personal Care• Home Support• Companionship

• Funding Investigations• Free Assessments• Nurse Supervised Staff • 24 Hour/7 Day Service

Vancouver office

604.873.25451.866.227.3106 www.bayshore.ca

52 The Society of Notaries Public of British Columbia Volume 19 Number 2 Summer 2010

the marriage. The Court concluded that extrinsic evidence indicated beyond a doubt that the testator intended the will to survive his marriage. A final factor

the Court considered was the presumption against interpreting a will in a way that would result in intestacy.

APPELLATE DECISION



1111

The applicant respondent leases a piece of land from

a municipality in the province. The land is a repository for slag produced by copper smelting nearby. The lease gives the respondent access to the slag and the right to remove the slag from the land. The respondent uses

Pacific Abrasives & Supply Inc. v. British Columbia (Revenue), 2010 BCCA 369

Areas of Law: Statutory Interpretation; Mining Tax

the slag in the manufacture of construction materials. The appellant assessed mineral tax on the profits of the respondent in relation to the slag and the respondent appealed to the Minister of Provincial Revenue, who agreed with the appellants. The respondents appealed to the Supreme Court where the chambers judge determined that slag did not fit within the statutory definition of “mineral” in the Mineral Tax

Act (the “Act”) and as such, allowed the appeal from the tax assessments.


BACKGROUND

APPELLATE DECISION

The appeal was allowed. The Act permits the appellant to tax mine operators on profits from minerals derived from the

mines. The appellant argued that slag is a “mineral”, making the slag pile on the respondent’s leased land a “mine”, and making the respondent the operator of the mine subject to taxation pursuant to the Act. A “mineral” is defined in the Act as being, among other things, a natural substance that can be mined. The initial definition is followed by a list of included substances, including “rocks and other minerals from mine tailings, dumps and previously mined deposits of minerals.” The chambers judge accepted the respondent’s position that the slag is not a naturally occurring substance by finding that the inclusive list following the definition was not meant to expand the definition of a mineral to include by-products of ore processing when the by-products do not occur in nature. The Court concluded that the chambers judge erred in this interpretation of the definition, and that the subsections listing what is included in the definition of a mineral was not meant to lend greater certainty to a narrow definition of “mineral” as a naturally occurring substance. The Court accepted the appellant’s argument that the word “includes” in a statutory definition means that the definition is non-exhaustive and is meant to expand the definition beyond the words at the outset of the definition. The Court concluded by outlining the reasons that slag ought to be considered a mineral for policy reasons, consistent with the purpose of the Act as a whole; the goal of the Act is to compensate the province for the use of finite natural resources, whether such resources are profitable on initial extraction or as by-products of another extraction process. The province’s Constitutionally derived authority to tax natural resources also supported the broad interpretation of the definition of mineral.





1212

\

OnPoint is not a “temp” agency. We

are a law firm of on-call lawyers actively involved in our clients’ files, albeit on a fractional basis. We have two divisions: legal research and on-call associates.

Who is OnPoint?

Legal Research Division: For over 10 years, our research division has completed research and writing projects for lawyers in the private and public sectors, from case summaries to complex memoranda and facta. Many of our clients consider using our services as equivalent to relying upon work completed by in-house associates, and add a measure of profit accordingly when billing their own clients.

On-Call Associates Division: Our on-call associates division responds to the need to control costs while effectively managing workload variances. Our litigators are available for a range of services, from background assistance and file management to court appearances and locums. Whether we are engaged for a set

period of time, a particular file or a specific project, our clients benefit from having access to temporary assistance from outstanding lawyers without the overhead associated with employing full-time associates.

“OnPoint has always performed in a timely, effective and professional manner and has done excellent work at a reasonable price. We do not hesitate to use their services.”

Larry Kahn, QC and Marvin Lithwick, Kahn Zack Ehrlich Lithwick

“The lawyers at OnPoint are of such high quality that I can give them important portions of my files and be assured that they will be handled with skill and proficiency.” Rose Keith, Rose Keith Law Corporation

Sarah Picciotto

“I have come to rely on OnPoint’s expertise and I fully intend to maintain and build upon my association with them as my firm continues to grow.” Ken Kramer, KMK Law Corp

Sarah Picciotto, B.A., LL.B. Founder of OnPoint


BC Take Five September 2010

Documents

Transcript of BC Take Five September 2010