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OFFICERS AND EXECUTIVES

CANADIAN BAR ASSOCIATION

LAW SOCIETY OF BRITISH COLUMBIA

BRITISH COLUMBIA BRANCH

Thomas L. Spraggs, K.C. President

BOARD OF DIRECTORS

Katrina Harry, K.C. First Vice President

Connor Bildfell President

Cheryl S. D’Sa, K.C. Second Vice President

Sarah Klinger First Vice President

Gigi Chen-Kuo Chief Executive Officer and Executive Director

BENCHERS APPOINTED BENCHERS

Simran Bains John James Greschner Michèle Ross

ELECTED BENCHERS

Nazanin Aram Aleem Bharmal, K.C. Tanya Chamberlain, K.C. Christina J. Cook, K.C. Cheryl S. D’Sa, K.C. Tim Delaney, K.C. Katrina Harry, K.C. Tanya Heuchert Sara K. Hopkins Ravi Hira, K.C. James A.S. Legh Benjamine Levine

David Allan Perry Natasha Tony Kathleen Ruth Wittenberg Jaspreet Singh Malik Marcia D. McNeil Jay Michi Arun Mohan Georges Rivard, K.C. Gurminder Sandhu, K.C. Nicole E. Smith Thomas L. Spraggs, K.C. Karen Tse, K.C. Kevin B. Westell Michael Zimmerman

BRITISH COLUMBIA BAR ASSOCIATIONS ABBOTSFORD & DISTRICT

Jasdeep Gill-Kahlon, President

CAMPBELL RIVER

Ryan A. Krasman, President

CHILLIWACK & DISTRICT

Nicholas Cooper, President

COMOX VALLEY

PORT ALBERNI

Christina Proteau, President

PRINCE GEORGE

Marie Louise Ahrens, President

PRINCE RUPERT

Bryan Crampton, President

QUESNEL

Michael McCubbin, President Shannon Aldinger, President

Karen Surcess, President

COWICHAN VALLEY

Dennis Zachernuk, President

Jeff Drozdiak, President

FRASER VALLEY

Michael Jones, President

KAMLOOPS

Jeanine Ball, President

KELOWNA

Tom Fellhauer, K.C., President

SALMON ARM

SOUTH CARIBOO COUNTY Angela Amman, President

SURREY

P.G. Kent, President

VANCOUVER Executive

KOOTENAY

Joey Levesque President

NANAIMO CITY

Daniel Babcock Vice President

NANAIMO COUNTY

Spencer Malthouse Secretary Treasurer

NEW WESTMINSTER

Sean Gallagher Past President

Gabriel Lando White, President Kristin Rongve, President Lisa M. Low, President Paul Pietrusinski, President

Rebecca L. Darnell Director at Large Laurel D. Hogg Director at Large Zachary Romano Director at Large Sonali Sharma Director at Large Sybil Valdivieso Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL CARIBOO

Coral D. Atchison Nathan Bauder Jon M. Duncan

KOOTENAY

Jamie Lalonde Christopher W. Trudeau

NANAIMO

Phil Dwyer Menaka Giri Benjamin D. Kingstone

PRINCE RUPERT Emily Beggs

VANCOUVER

Connor Bildfell Erica Chow Joseph G. Cuenca Rupinder Gosal

Jennifer Khor Tina Parbhakar Sonali Sharma Leena (Ronak) Yousefi Brian Yuen

VICTORIA

J. Berry Hykin Cherolyn Knapp Anwar Mujtabah

WESTMINSTER

Grace Cleveland Rebecca L. Darnell Manpreet K. Mand Natasha S. Nair Gurjit Kaur Tiwana

YALE

Laurel D. Hogg Nika Pidskalny Aachal N. Soll

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.) Cecilia Barnes, President FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.) Lily Zhang, President

SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA Hardeep S. Gill, President

Sofia Bakken, President

PENTICTON

Anwar Mujtabah Young Lawyers Representative

VICTORIA

NORTH SHORE

Ryu Okayama, President

Jacquelyn Miller Equity, Diversity and Inclusion Representative

INDIGENOUS BAR ASSOCIATION (B.C.) Drew Lafond, President

Kelsey Wheelhouse, President

Nathanael Mills, President

Dan Moseley Finance & Audit Committee Chair

VERNON

NORTH FRASER

Lyle Perry, President

Dimple Kainth Second Vice President

ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE LA COLOMBIE-BRITANNIQUE Sandra Mandanici, President

THE

A D VO C AT E “in the interests of an independent bar”

VOL. 84 PART 5 SEPTEMBER 2026 Published six times each year by the Vancouver Bar Association Established 1943 ISSN 0044-6416 GST Registration #R123041899 Annual Subscription Rate $36.75 per year (includes GST) Out-of-Country Subscription Rate $42 per year (includes GST) Audited Financial Statements Available to Members

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ASSISTANT EDITOR:

Entre Nous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 651 On the Front Cover: Cindy Friesen By the Honourable Justice David Crerar . . . . . . . . . . . . . . . . . 657 Breaking the Deadlock: Ten Practical Strategies for Successful Family Mediation By David A. Paul, K.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 671 Legal Maxims: On Their Source, Nature, Use and Misuse – Part II By Joanne Lysyk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 677 Using a Petition for A Declaration of Substantive Constructive Trust to Recover Funds By David Penner and Eric Main . . . . . . . . . . . . . . . . . . . . . 689 The Wine Column . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693 News from BC Law Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . 699

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News from CLEBC Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703

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Anne Giardini, O.C., O.B.C., K.C. Carolyn MacDonald David Roberts, K.C. Peter J. Roberts, K.C. The Honourable Mary Saunders, K.C. The Honourable Alexander Wolf

CONTRIBUTING EDITORS:

Announcing the 2027 Advocate Short Fiction Competition . . . 711 Peter A. Allard School of Law Faculty News . . . . . . . . . . . . . . . 713 UVic Law Faculty News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715 TRU Law Faculty News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 721

Peter J. Roberts, K.C. The Honourable Jon Sigurdson, K.C. Lily Zhang

The Attorney General’s Page . . . . . . . . . . . . . . . . . . . . . . . . . . . 725

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Court Notices and Directions . . . . . . . . . . . . . . . . . . . . . . . . . . 729 New Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751

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ON THE FRONT COVER

Cindy Friesen has retired as Director of Scheduling of the B.C. Supreme Court. That hardly means she is slowing down though! Find out more on page 657.

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EXPERIENCE MATTERS

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ENTRE NOUS

T

he Bench and Bar section of this publication (some of you will have already been there before coming back to the start of the magazine) usually has a theme. Sometimes we are familiar with the theme; sometimes we get to learn about something new. This issue’s topic is Broadway. If we are not overly familiar with the genre, we have at least enough of a working knowledge of its tropes and more famous composers and lyricists to fake it through more than one Lawyer Show in any event. Editing, therefore, was a bit of a breeze. In our July issue, we had a soccer/football theme to align with the 2026 World Cup happenings in Vancouver. Due to a lack of familiarity with the subject matter, its scope, its depth and its resonance with so many people in the world, the editing came less naturally. Our production schedule dictates that we are usually writing and editing two months before you are reading. So, when we are miraculously “topical” it is either due to careful planning or a complete fluke. Writing and editing things on soccer/football before the World Cup took place was a bit of a shot in the dark. Having now watched a few games and examined some of the goings on, it is quite a bit more interesting. The Fédération Internationale de Football Association (“FIFA”) held the 2026 World Cup in North America. Two cities in Canada were chosen as were locations in the United States and Mexico (the United States (1994) and Mexico (1986) have each previously hosted on their own). Forty-eight teams (rather than the usual 32) entered the 2026 competition and Canada fought its way into the round of 16, scoring its first World Cup points, taking its first win and experiencing its first knockout-stage victory—a fantastic achievement. For the summer months the nation’s focus was on games played in Toronto and Vancouver with Canada finally falling to Switzerland but only after having trounced Qatar 6-0 for its first ever win at a men’s FIFA World Cup. The country was electrified and workplaces buzzed with “foot-

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ball fever” which brought out both camaraderie and competitiveness. For those of us less immersed in sport and cynical enough to think that the phrase “my local sports team is superior to your local sports team” makes a pretty funny T-shirt, the World Cup was surprisingly intoxicating. To be sure, the athleticism of “the beautiful game” is staggering. The matches are spectacular endurance events (even with hydration breaks—a not-so-veiled excuse to get in more product placement). Each nation heralds its heroes—modern day gladiators engaging in battle to the roar of appreciative (and heavily decorated) crowds. Apparently, soccer (an English abbreviation of “Association Football” which started its life as assoccer before being further abbreviated) is the most-played sport in Canada (sorry hockey). As entertaining nation-defining moments go, it was an incredible event. After the 6-0 win against Qatar, the Prime Minister addressed the Canadian men’s team in the locker room: … you showed a level of character that some people never achieve in their life, and you showed it when the entire country and a good part of the world is watching. And if they didn’t watch, they will have watched by tomorrow, watched the highlights by tomorrow. I’ll just say I couldn’t be prouder as a Canadian. And on behalf of all Canadians, I just want to thank you for everything you put in to get here. You represent the nation, represent your families, your friends, and teach a lesson.

Meanwhile, the team’s head coach, Jesse Marsch, told reporters: Canada is a strong, independent nation that's deep-rooted in decency, really. It’s a place that values high ethics and respect, unlike the polarized, disrespectful and, often now, hate-fuelled climate that’s in the U.S. Canada values a lot of fairness and unity. It’s a place that I’ve learned as the national team coach where people really believe that their differences make them stronger. One of the things that I’ve enjoyed the most about our team is they exemplify this as human beings and as a team.

One irony here, of course, is that Marsch is an American. The international nature of the event gives an excuse for unbridled patriotism and on many afternoons and evenings, swarms of flag-waving enthusiasts poured onto closed-off Vancouver streets surrounding the hotels housing their favourite teams. Türkiye, Switzerland, Australia, Egypt—all seemed to be parading around downtown at one time or another until their heroes were whisked to or from the stadium in buses with full police escort. Public viewing areas popped up around the city where games would be watched by banner waving fans sporting their expensive merchandise, and (in one spectacular self-goal moment) completely failing to get a group of Canadians chanting along to “USA! USA! USA!” Honestly. In our office at least, lines seemed to be quickly drawn between the Old World and the New World teams which roughly aligned with age and wine

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preferences and whether you actually drink wine at all and still use the expression “Old World and New World” fearlessly. Alignments aside, one favourite moment was seeing a senior member of our firm feigning a workday on a Thursday afternoon, while kitted out in team Canada gear and enthusiastically spurring on his team via a small iPad secreted away on his desk. Why he did not join the throngs of others in the boardroom where the game was playing on the big screen is beyond us. The feelings unleashed whether one’s preferred team is winning or losing are difficult, perhaps impossible to bridle. A viewer’s animated conversations (even disagreements) with the players, coaches, referees and television commentators are not uncommon. Goals and near-goals can both result in otherwise sane and rational people leaping from their chairs, arms flailing and guttural sounds hurling from their lungs. Sports watching is an undignified and slightly ridiculous exercise, really. Quite apart from the sheer fun of it, though, there were controversial international politics on display too. The president of the United States, for example, hot on the heels of having “won” an “international peace award” from FIFA,1 made a phone call to its president to complain about a red card issued to one of the American players. For reasons entirely unrelated to the phone call, the red card decision was reversed overnight. It was some kind of miracle, perhaps. Belgium, not ones to believe in miracles, however, rose to the occasion and saw to it that the U.S. team would not advance; Belgium defeated the United States the very next day with a score of 4-1. In Seattle. Some members of the Argentinian team chose to celebrate their victory over England in direct contravention of FIFA regulations by unfurling a banner featuring the hand-painted slogan “Las Malvinas son Argentinas”— a political claim to the Falkland Islands.2 Then, as if to exemplify what bad losing really looks like, some of the team members physically attacked their opponents after losing to Spain in the final World Cup match. Later, the entire Argentinian team turned their backs on the Spanish team when they hoisted the World Cup trophy in celebration. For their efforts, several players and a coach are now being investigated by FIFA’s disciplinary arm. They will likely need the Hand of God to help them if they are to stay out of that trouble. That might not be entirely out of the question, though, because it turns out that FIFA is hardly a bastion of ethics and morality itself. Allegations of corruption including the fixing of games have swirled around FIFA for decades. In 2015 a corruption scandal erupted in which 14 people were indicted for wire fraud, racketeering and money laundering. Early-morning arrests were made at a hotel in Zurich (and televised around the world)

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shortly before the 65th FIFA Congress. The scandal involved an estimated $150 million (USD) in bribes allegedly used to influence sponsorship contracts and the selection processes for the FIFA World Cup hosting. It resulted in at least 12 guilty pleas (for wire fraud conspiracy, tax evasion, racketeering conspiracy and money laundering conspiracy) and the forfeiture of at least $40 million (USD). The FIFA Ethics Committee found FIFA president Sepp Blatter and the Union of European Football Associations (“UEFA”) president Michel Platini guilty of ethics violations and banned them from the sport until 2023 (though the bans were reduced on appeal). At the very start of the 2026 World Cup, Platini filed a civil and criminal case against current FIFA president Gianni Infantino alleging various criminal activities including conspiring with members of the Swiss government and judiciary. The French investigating judge, according to Platini, “will also examine the involvement of Swiss magistrates, including Mr. Michael Lauber (former Attorney General of the Swiss Confederation from 2012 to 2020), Mr. Oliver Thormann (Chief Federal Prosecutor at the Office of the Attorney General of Switzerland (MPC) from 2011 to 2018) and Mr. Andre Marty (spokesperson for the MPC until 2021). They are all suspected by the complainant of complicity in malicious denunciation, criminal conspiracy to commit this offense, passive influence peddling, and of having accepted false accusations, offering them a favourable and complacent hearing knowingly.”3 Shortly after the World Cup had ended, Infantino announced that FIFA was seeking private equity money to support nations struggling to develop grassroots football programs. He intended to do this by selling off 20 per cent in FIFA’s competition, commercial and organizational rights to Thrive Capital, a private equity business led by the brother of Jared Kushner, the U.S. president’s son-in-law. Threats of a FIFA boycott by most of the confederations which make up its membership resulted in Infantino standing down, but the stench of corruption and scandal still lingers in the air. But for the 2026 World Cup being held in Vancouver, we wonder if the news stories would have even landed. But landed they have. Football seems to be a worldwide phenomenon on which the wildest dreams and identities of many sports fans ride. But it also seems to be the same vehicle in which the devious schemes and scams of the international billionaire set travel. When there are billions of dollars at stake, perhaps we should not be surprised that nefarious and even criminal activities take place. A 2022 Netflix documentary FIFA Uncovered details the tumultuous history of FIFA, its power struggles and the corruption investigation which upended the career of its previous president. Learning that the beautiful game is perhaps quite

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ugly underneath is both intriguing and disheartening. It is very hard to look away. Perhaps a new T-shirt slogan is in order: “My favourite international sport is more filthy and corrupt than your favourite international sport.” ENDNOTES 1. The “FIFA Peace Prize – Football Unites the World” was created in November 2025 to be presented “to individuals who, through their unwavering commitment and their special actions, have helped to unite people all over the world in peace and consequently deserve a special and unique recognition.” The prize was presented to President Donald J Trump on December 5, 2025. Sources close to The Advocate have indicated that FIFA President Gianni Infantino created the award entirely on his own without input

from the FIFA Council, without a process, without other nominees, and without a judging panel. 2. Political correctness encourages us not to state the blindingly obvious. 3. Paul Nicholson, “Platini rains on Infantino’s World Cup parade, filing criminal complaint in French courts” (9 June 2026) online: <www.insideworldfoot ball.com/2026/06/09/platini-rains-on-infantinosworld-cup-parade-filing-criminal-complaint-infrench-courts/>

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ON THE FRONT COVER CINDY FRIESEN By the Honourable Justice David Crerar*

T

he expression “if you want something done, ask a busy person to do it” has been misattributed variously to Benjamin Franklin, Lucille Ball and others.1 Whatever uncertainty exists as to its origin, it indubitably applies to the endlessly energetic Cindy Friesen, who, on February 6, 2026, retired after almost 30 years serving as the British Columbia Supreme Court Director of Scheduling, and after a 48-year career with the British Columbia Public Service. While a Chief Justice can assign cases, and while every judge may issue constitutional edicts, Cindy Friesen could send those same individuals to Smithers, or Fort St. John or beyond, in December or otherwise—perhaps the most awesomely powerful person in the judicial system. On a macro level, she has overseen the evolution of court scheduling into the modern technology age; on a daily level, her real-time coordination of some 130 judges, associate judges and registrars sitting in 30 court locations on everchanging trials and hearings, with seeming 24/7 engagement, resembles the role of an air traffic controller. Her four-decade span of service also represents the longest institutional memory of the court.2 As stated by Chief Justice Ron Skolrood in a speech on Cindy’s retirement: When Cindy started working for the Supreme Court in the 1980s, the Supreme Court and the County Court had not merged, Allan McEachern was the Chief Justice, the full-time complement of the Supreme Court

* In addition to those quoted in the article, the author is grateful to Chief Justice Ron Skolrood, Associate Justice Heather Holmes, Heidi McBride (Chief Legal and Executive Officer), Sylvia Ranspatch (British Columbia Superior Courts Librarian), Shayna Webb (Judicial Administrative Assistant), Justin Chhuor (Law Clerk) and Harry Crerar (son).

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was 1 Chief Justice and 27 puisne and no Associate Chief Justice. Since then, Cindy has worked for 7 Chief Justices and 5 Associate Chief Justices. She has seen the complement of the Supreme Court grow to 95 fulltime judges (although she will tell you that there has never been a time when there were not at least a few vacancies and many years, more recently, where there were more than a few). Cindy became the Director of Supreme Court Scheduling in 1997 and in that role, she welcomed 202 new judges to the Supreme Court. Cindy led the Scheduling department through a complete overhaul of the Rules of Court and then brought her problem-solving expertise to help the Chief and the Associate Chief Justice keep the Court running in the face of a global pandemic. To say that Cindy is an institution within an institution is an understatement.

Cindy was born in Kamloops in February 1960, the youngest of five children, to Gordon and June Boyd. The family lived in Valleyview in a small house on a few acres that included an orchard. Gordon worked for the provincial government in the Public Works department, and June was a homemaker. Gordon was also the chief of the Valleyview volunteer fire department. In 1962, the family moved to the then-sleepy community of Coquitlam, when Gordon was transferred to work at “Essondale” (later renamed Riverview Hospital) in the boiler room. The family built a wonderful life in the suburbs among the middle-class families. In those halcyon days, free-range children played outside until the streetlights went on, and did not stop playing for scraped knees and banged heads. In 1969 Gordon uprooted the family to move to Victoria after he was promoted to Chief Engineer at the new hospital in Saanich. June started working at Woodward’s, and then Eaton’s, where she thrived. Sadly, right after Christmas 1971, June was taken to hospital for exploratory surgery to attempt to investigate her escalating digestive issues. She never returned home: she passed away in February 1972 from cancer. Cindy’s early vocational experiences did not presage her future role. She worked a variety of part-time jobs while in high school, including chambermaid at the Strathcona Hotel, house cleaning and yard work; she worked several years on a farm, feeding animals, cleaning out the chicken coop and barn, weeding and watering the huge vegetable garden. Soon after high school graduation, Cindy was hired as a British Columbia government employee (coincidentally working in the basement of the Victoria Courthouse) knowing that her department would be moved to Vancouver in a few months. In April 1981, she started work at the New Westminster Courthouse, one week before the Honourable Wally Oppal was sworn in as a County Court judge.3 She recounts that the County Court in New Westminster featured some very strong personalities: judges who were generally kind to staff but who could strike terror in the hearts of counsel.

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At that point, Supreme and County Court scheduling staff worked under the umbrella of the provincial Court Services Branch; in the mid-1980s the scheduling department was transferred directly under the wing of the judiciary. Cindy reports that she “was thrilled as [she] no longer needed to pay union dues: effectively a pay raise.” While at New Westminster, she worked in a wide variety of roles that provided the broadest institutional view of the workings of the courts. She nimbly stepped in to serve as a court clerk from time to time. She also worked as an exhibit clerk, gingerly transporting boxes and bags of blood-stained clothing, drums of chemical drugs, bags of marijuana, stolen stereos, tires and even bones: the bagged jawbone of a victim will never be erased from her memory. She recalls ruefully that although she manoeuvred daily through the exhibits room in her ordinary garb, when the room was eventually cleaned out, the workers wore full hazmat suits. Her competence and resilience established, she was made Deputy District Registrar: scrutinizing and, at times, rejecting default judgments and divorce, and other filings. In 1988, Cindy was named a Justice of the Peace and routinely served as a backup Provincial Court Trial Coordinator (later known as “JCM”) throughout the Fraser Valley courthouses up to 1993. Her duties included reviewing bail conditions and probation orders with accused and convicted individuals, in addition to regularly presiding over Remand Court. Cindy recalls serving as a Provincial Court Trial Coordinator as a very rewarding experience. It also provided a model to run what became “Scheduling Hearings” in the Supreme Court for s. 525 detention hearings that commenced in 2019. The 1990s saw significant changes in court structure, processes, logistics and technology: the courts were lucky to have Cindy’s assistance during this explosive period. When the County and Supreme Courts merged in July 1990, the judicial roster jumped from 39 justices to 90 justices, headed by Chief Justice William Esson, with former County Court Chief Judge David Campbell becoming the first Associate Chief Justice. Cindy recalls each of those jurists as exceptionally kind and gentlemanly. Cindy was named trial coordinator in Kamloops in November 1993. She has fond memories of working with Kamloops native and legendary jurist, Associate Chief Justice Patrick Dohm, in this capacity, as well as, later, as Director of Scheduling. Dohm A.C.J. was fiercely loyal to his hometown and its citizens: whenever he needed to buy a car, or have a clock fixed, or his shoes re-heeled, he would ask Cindy, whom he called “Miss Cindy”, to see if there were any Kamloops matters to preside over, to encourage his return. It was during that time that Cindy first met fellow Kamloopsian and future Chief Justice Len Marchand, who recounts:

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I have very fond memories of meeting and working with Cindy in Kamloops. I was then an articling student and later a young associate at Fulton & Company, and Cindy was the Kamloops Supreme Court Trial Coordinator. I had much to learn and she was a kind, patient and helpful teacher in the workings of the registry and, in particular, getting my clients’ matters before a judge. Her talents were as obvious then as they have been every day since. It was no surprise to anyone in the Kamloops legal community how quickly Cindy rose through the ranks.

It was also during this time that Dohm A.C.J. and Fred Messenger, then in charge of Scheduling, reinstituted the assize system for all locations except for Vancouver and New Westminster, in 1995–1996. It may seem surprising to modern readers that the assize system that prevailed under Chief Justice Begbie in the early days of our courts, would be reinstituted. The fixed-date system (as presently used in Vancouver and New Westminster) resulted in inefficiencies in a smaller judicial centre when a trial scheduled for, say, Monday, settled: the more nimble assize system, while not perfect, allowed for more efficient scheduling and sitting, with less downtime and judicial idling. In June 1997, Cindy won the competition to take over from Fred Messenger the role that came to be called Director, SC Scheduling. That same year marked the last year with a two-month summer recess of the judges and courts. The rota became much more complex and fluid, with 90 full-time judges choosing their vacation 18 months in advance, and then inevitably changing their vacations as their lives came into clear view. Just as Chief Justice Allan McEachern saw technology as critical for making the courts more accessible and understandable to lawyers and nonlawyers alike, Cindy and the Supreme Court Chief Justices under whom she served, pushed to computerize the complex task of scheduling trials and hearings, and shuffling judges to hear them. It is difficult to comprehend, but until 2004, most of the day-to-day scheduling business was carried out by hand, with liberal and furious use of a pencil eraser when matters settled and assignments changed. The court list was typed up at the end of the day, or first thing in the morning. The list was, at times, revised by literally cutting and taping it back together, with the settled cases cut out, or matters moved from one judge to another. It was then photocopied and delivered by hand to the appropriate people in every courthouse up until 2000, when it was distributed by email. Cindy worked with scheduling managers throughout the province, and with OpenRoad digital consultancy4 to develop the Supreme Court Scheduling System (“SCSS”), which went live in 2004: completely transforming court scheduling, and allowing real-time herding of judicial cats, in assigning judges to an ever-changing docket.

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Tanya Dixon, the New Westminster Manager of Scheduling, recounts the old and new processes: Cindy played a major role in creating SCSS and making it as user-friendly as possible. I still remember her telling us that we had to stop using our paper ledgers and put everything into a computer program. We thought she had completely lost her mind. Give up paper? What if the computer broke? What if we needed to find something quickly? What if we actually liked our ledgers? As it turns out, Cindy was right. Again. Now, most of us can’t imagine doing our jobs without SCSS, and we’re thrilled that the days of manually crossing out judges’ names and squeezing new ones into a paper rota are behind us. Every now and then, Cindy would catch one of us trying to do things “the old way,” and we’d receive one of her trademark lectures—which usually ended with us realizing she was right then, too.

As does Will Gallagher, the new Director of Scheduling: My primary thoughts of Cindy are what all of us saw everyday: someone who worked extremely hard, for long hours, a great deal of it on her own time, to ensure this court functioned and succeeded at its mandate. I think of what she said at Sue [Smolen, Manager of Civil Supreme Court Scheduling in Vancouver]’s retirement about how they were both proud to have built SCSS and brought Scheduling into the digital world: they called it Sue and Cindy’s Scheduling System (SCSS). It may look old and outdated, but I can attest that it is a great application, one that is far superior to anything Court Services has, hands down.

Cindy and the scheduling team were on the front lines of some of the most significant changes and challenges in the administration of justice in British Columbia. Summary trials, with denser scheduling demands, became more prolific. Rule 65 and then later, in July 2001, Rule 51A, revolutionized the volume and scheduling of chambers applications through prior exchange of materials.5 In 2010, the Supreme Court Rules received a complete overhaul, generating the Supreme Court Civil Rules and Supreme Court Family Rules. Practice Directions proliferated from a mere handful to the present range, numbered up to PD-74. Supreme Court of Canada pronouncements in R. v. Jordan, 2016 SCC 27 (trial within a reasonable time), R. v. Myers, 2019 SCC 18 (s. 525 bail review hearings), and the enforcement of s. 490 (extensions of detention of seized items) necessitated increased and more frequent criminal hearings. The 2017 Bill C-51 reforms to the Criminal Code sexual assault provisions have notoriously increased the number, complexity and length of those proceedings; exploding in this court from 4 trials (3 judge; 1 jury) in 2017 to 118 trials (82 judge; 36 jury) in 2025;6 during that time the median time to complete a sexual assault trial in Canadian courts rose from 331 to 453 days.7 While it now seems like a

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dreary hazy memory, COVID-19 necessitated rapid massive changes to keep the courts open to the public. All during this period, and particularly from 2015 to 2019, British Columbia courts suffered significant judicial vacancies, at times exceeding twelve per cent of its statutory allotment, resulting in bumped trials and hearings, particularly for civil matters.8 But without the energy and focus of our judicial leadership and Cindy and her team, our courts would have fared much worse in these trying times. The criminal law challenges surveyed above have fallen largely on the capable shoulders of Associate Chief Justice Heather Holmes. Holmes A.C.J. graciously praises Cindy’s creative and resilient responses: I always knew that Cindy was quick-thinking and smart, but I didn’t fully realize, until I became ACJ, how creative a thinker she also is. When the court was faced with changes or problems that required a new approach, Cindy was always central to finding a good solution. After the SCC in R. v. Myers required a new approach to detention reviews under s. 525 of the Criminal Code, Cindy came up with the idea of centralizing the intake and scheduling of these reviews, that the group of court, criminal bar, and government representatives then helped us develop and adopt as our process. When the COVID-19 pandemic struck, Cindy worked tirelessly alongside CJ Hinkson and me, Heidi McBride, and our legal counsel, to devise ways to keep our courthouses open and operational. For these and other challenges the court has faced, Cindy’s innovative ideas and her intense focus often made the difference.

Another complication during Cindy’s tenure, was the opening and shuttering of Supreme Court courthouses. The court stopped sitting in Merritt (by 2000), Creston (last sitting April 13, 20009), Fernie (last sitting October 17, 200010), Invermere (ceased regular sittings 2001; last sitting September 11, 200611), Grand Forks (last sitting November 13, 200112), and Fort Nelson (2007). The court stopped sitting in Ashcroft (May 1995) and Golden (March 2023) when those courthouses burned down. Cindy recounts how the last Supreme Court judges to sit in those courthouses (Justices Ross (Cyril) Lander and Joseph Doyle, respectively) were ribbed by colleagues for not allowing less aesthetic and functional courthouses to go up in flames instead. The Revelstoke Courthouse was also on the chopping block for Supreme Court sittings: thanks to the intervention of Dohm A.C.J., we still sit in that beautiful courthouse in that charming town. In 2002, the new Chilliwack Courthouse was opened, albeit with no increase in courtroom capacity.13 In January 2021, Abbotsford was added as a regular Supreme Court courthouse, with resident justices and an associate judge. In April 2021, Cindy was delighted when the Supreme Court began sitting in Port Coquitlam, near to her home.14 Over her 30 years of service, Cindy has worked closely with seven Chief Justices and four Associate Chief Justices, assisting with the assignment of

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justices to trials and proceedings, with the gathering of local scheduling intelligence about matters of particular local interest and importance. In proposing judges to hear matters, she must keep in mind the backgrounds, stage of experience and training, and interests of all of the Supreme Court judges, in addition to their geographic and temporal availability. The Chief Justice or Associate Chief Justice will, in turn, make preliminary assignments, and adjust provisional assignments, all designed to effect the most efficient and sensible adjudication of a given matter. Chief Justice Hinkson recounts the process: When I returned to the Supreme Court in 2013, Cindy was still in her same role, but I gained a greater insight into her personality and work ethic. I would meet with Cindy, and usually with the ACJ and two or three Scheduling Managers each Thursday at the morning break to assign cases and other work for the coming two or more weeks. I began to appreciate just how much Cindy knew about the judges, as if I proposed an assignment to a specific judge, Cindy might demur, on the basis that the judge had done too much traveling recently, or had a partner or relative whose health was precarious, and suggest a lighter assignment for that judge.

She speaks with admiration of the Chiefs and Associate Chiefs with whom she has worked so closely over the years. When she started at the Vancouver Courthouse, Chief Justice McEachern presided over the province’s courts: “he was so delightful: unfailingly pleasant to us staff members, even when I was a coordinator, and was pretty low on the rungs… he was such a good mentor to all.” Of Chief Justice Bryan Williams, her first C.J.S.C. as the Director of Supreme Court Scheduling: “he was a whirlwind of activity”: very ambitious, with a bounty of reforms and pilot projects, at times overwhelming staff and even himself; Cindy recalls with respect and affection how Williams C.J. respected her request for a prioritization of these myriad projects. She thoroughly enjoyed working with Chief Justice Hinkson, noting his unceasing hard work, and his dedication to the court and public. She particularly recalls Hinkson C.J.S.C.’s sense of humour: she recounts calling Hinkson C.J.S.C. “sir” in her first meeting with him in that role, with the modest new Chief Justice admonishing her never to call him that word again. Finally, she recalls his courtesy and generosity, in general, and in occasionally sharing his whiskey cabinet. Cindy has fond memories of energetic discussions with the current Chief Justice Skolrood on reforms to judicial systems, and is confident that the court will prosper under his decent, energetic and empathetic leadership. She speaks equally fondly of the Associate Chief Justices over the years: the capable humanity of Anne MacKenzie A.C.J. and Austin Cullen A.C.J. is continued through present Associate Chief Justice Holmes, whom she

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calls the hardest-working person that she has ever met: “…people should know how hard a Supreme Court judge has to work. I cannot get over what Holmes ACJ can get done in a week. I get a lot done and she made me look like a sloth….” Cindy is not much of a sloth, though. She describes her then-daily routine as far from a typical 9-to-5 role: My commute to Vancouver from Port Coquitlam allowed me to extend my workday as I could work on the West Coast Express. Typically, on the train at 7am, I’d log on and review and anticipate problems throughout the province for the day/week, work on suggestions for assignments, respond to requests for rota changes and follow up on the many emails, (around 200 per day) from a wide variety of folks on unlimited topics. I would walk from the train to the courthouse, I’d usually add streets, in order to have walked 2 km before I got to the courthouse. The day was always predictably hectic responding to the foreseen and reacting to the unforeseen events and issues that arose throughout the day. Preparing for the meetings of the day on a wide scope of topics from anticipated changes, stats for a judicial committee, enhancements to SCSS, changes in HR practice, a long list of ongoing Scheduling processes and procedures, meetings with Court Services Branch HQ and on-and-on. Barely a day went by without an unexpected reason why at least one thing in the province didn’t proceed as expected, from sick litigants to accused not showing up, counsel getting into a car accident or someone breaking down on the stand. The reality of working at the courthouse where the litigants and witnesses are there to deal with serious issues in their lives, at times the absolute worst thing they ever have to deal with. A week didn’t go by without unforeseen issues somewhere from bomb threats to broken water pipes to DARS15 not working. Of course, that is all in addition to what can happen in a judge’s life to impact their day and ability to get to the courthouse; unforeseen events with family or travel for example. Public service is key. Everyone that works at a courthouse is a public servant. SCS’s role is to get lawyers and litigants before the court. As Director, SCS, I considered myself the team captain and was very fortunate to have an excellent team! Also a very good working relationship with the CJs and ACJs. I’m surprised that the carpet between my office and the CJ and ACJ is not worn down as it was a trek it took many times per day for almost 29 years.

As intimated in the above passage, one of the central and more challenging aspects of Cindy’s role was the movement of judges around the province, like so many pawns on a chessboard, during the six to ten weeks a year they sit outside of their home courthouse (a pleasure more experienced by those judges ordinarily resident in the Lower Mainland courthouses, with easier access to direct flights).16 It has often been said that one third of the judges love the travel, one third of the judges tolerate the travel,

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and one third of the judges loathe the travel. In the first category were judges such as Justice Robert Hutchison, who gladly volunteered to sit in any courthouse near a good fly fishing river (vide Smithers and Terrace),17 and Justice Bill Grist, who would do a modern summer assize, with his motorhome serving in place of Chief Justice Begbie’s stallion. Justice Ward Branch has set up for judicial travel enthusiasts a friendly courthouse bagging contest. The first known compleatist,18 Justice Joel Groves, has presided in all 30 courthouses (including the departed Golden courthouse); he credits Cindy as his co-conspirator in ensuring this accomplishment. By auspicious coincidence, both Justice Gordon Weatherill (Revelstoke) and Justice Dev Dley (Smithers) completed the circuit on July 6, 2026.19 At the other end of the spectrum, Cindy had to balance diplomacy with firmness: she had to grow thick skin to deal with occasional judicial grumpiness flowing from the rigours and indignities of travel spanning our vast and contoured province (or at least its southern half): from Dawson Creek to Prince George to Prince Rupert to Cranbrook to Campbell River. She found that the best strategy was to manage expectations, by explaining to new judges that during their designated assize weeks, they may well have to travel to multiple locations, to maximize their sitting time when trials go down. Our justices will tell woeful or triumphant tales of planes, trains and automobiles commandeered to deliver justice around the province on the turn of a dime. Retired Justice Linda Loo, Cindy’s longtime friend, recounts: Everyone has these stories: I’m driving to New Westminster when my phone rings. I answer. It’s Cindy. Her words: “Judge Loo, turn around. You’re now wanted back in Vancouver”. Or...I leave the house Sunday at about 1 pm to begin the trip to Prince Rupert so I can be there Monday morning. I use every mode of transportation except a train: cab to YVR, flight to an island off Prince Rupert, ferry to Prince Rupert, cab to hotel (at least, it’s not on the long bus in the fog to Terrace when the plane can’t land there Sunday evening). Cindy phoned: “Judge Loo: we need you in Vancouver on Monday.”

Travel indignities are challenging at the best of times. COVID-19 presented exceptional troubles: with hotels remaining closed long after the courthouses reopened. This spawned a glorious tale of on-the-road creativity and resilience, with Cindy in a co-starring role, as recounted by Justice Heather MacNaughton:20 I was assigned to sit in Cranbrook just as the court was reopening at the end of COVID...I had been in Chilliwack the week before I was due to fly up but I couldn’t get a hotel in Cranbrook ...so the ever-resourceful Bill Grist said “why don’t you rent an RV and drive up: it’s a lovely trip and the RV park at the Mission is open.”...Problem solved...I got approval from the Commissioner, rented an RV in Abbotsford and set off...Never having

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driven a vehicle that large, I was unaware of the traffic chaos behind me on the highway but I did receive a lot of nasty looks as drivers flew past me. I drove on. I was scheduled to do a Cranbrook trial to start on the Tuesday, so I did the chambers list on Monday, started the Tuesday trial, and adjourned it as one of the parties was ill. I called Cindy. She said, “we need you in Kamloops” ...Having no idea what lay ahead, I agreed but didn’t think I could pack up, gas up, drive in the dark and arrive on Tuesday, so we agreed I would be there Wednesday morning for a contested sentencing and a long family application on Thursday....Off I went ...through Rogers Pass with a line of traffic as I wound my way along, pulling off into camping areas to allow traffic to pass, and eventually arriving in Kamloops, for a late start. The sheriffs helped me find an RV park to stay at overnight, and guided me into the parking area as I parked the RV. As luck would have it ...the sentencing was a joint submission, and the family matter had a consent order but for one issue,...I was done by noon. I called Cindy. She said, “we need you back in Vancouver” ...Off I went driving over the Coquihalla, past Chilliwack and Abbotsford (home of the RV) and into Vancouver. I boldly drove into the underground off Howe...and saw the height clearance sign...I had no idea of the height of the RV so stopped on the ramp...it looked iffy. I called the Sheriffs...they agreed that proceeding was risky and said I should back up onto Howe...I had never driven the RV in reverse, so I gave up the driver’s seat to a Sheriff who, with guidance and blocking traffic on Howe, managed to get back to street level...I soon learned that there is nowhere to park an RV in downtown Vancouver, so, I drove to Kerrisdale...parked the @$#@$@% RV on the street, hopped in my SmartCar and drove downtown...sitting in chambers for what was the rest of a very long week! My husband drove the RV back to Abbotsford on Saturday, with me following in the SmartCar...

Trials settle during the weekend before their Monday start, and emergency matters spring up after hours; judges pull up sick on a Sunday, and a replacement judge must be found at the last minute. Cindy’s oversight and diligence demanded and received 24/7 attention. The author recalls, several months into his judicial tenure, receiving a call on a December Saturday night at a Manhattan restaurant, to learn that his Monday Victoria trial had collapsed and that he would be restationed to Fort St. John. Thanks to Cindy, I experienced my first minus 15°C perambulation, from the hotel to the courthouse. Cindy recounts a time before cell phones when she had to call the Vancouver International Airport to have Justice Bryan Ralph paged to avert him from boarding a flight to a distant judicial location for a trial which had just settled that morning. In this, Cindy gladly took on other duties ancillary to her dedication and ability to sleep with one eye open. As recounted by Chief Justice Hinkson: At one of the court meetings, there were grumbles from some Vancouver judges who worked after hours and forgot to take their key cards with

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them, when going for meals or other diversions. I have to say that I thought that judges could be expected to remember their passes, but to avoid problems for them, Cindy offered to take their phone calls after hours so she could intercede with security and get them back into the building.

Over the years, Cindy has dedicated an equally tough and devoted team of scheduling managers throughout the province. Tanya Dixon, the New Westminster Manager of Scheduling, recounts: When I started working at the New Westminster courthouse in 1990, I worked with Cindy in Trial Division alongside Garney Gracey. Most of you probably won’t remember him, but those were the days of Justices Rowan, Lander, Hogarth, and Preston, to name a few. Judges who could put the fear of God into you with nothing more than a raised eyebrow from the bench. Luckily, Cindy taught me how to speak to judges without all the colour draining from my face. She taught me which lawyers were famous for wildly optimistic time estimates, and which ones were almost certain to settle or enter a plea at the last minute. She taught me how to record trials in paper ledgers and master the ancient arts of carbon paper and electric typewriters to produce the daily court lists. For those who don’t know what carbon paper is, you’ll have to ask someone over 50. Cindy was a good boss but, there is nothing quite like a healthy dose of fear to keep a person focused. I can’t count how many times I heard, “Cindy’s on the phone for you... and she doesn’t sound happy,” and immediately started mentally reviewing every decision I had made that week. Fortunately, I managed to dodge most of the bullets over the years. Throughout my years with the courts, Cindy was a constant source of support, guidance, and institutional knowledge. Whenever I had to cover for her, I quickly discovered that what appeared to be one job was actually about five jobs disguised as one. It didn’t take long to learn that Cindy’s position was really a 24/7/365 commitment. Suddenly, I was getting calls from judges on Sunday evenings who couldn’t make it to court the next day, and I was scrambling to find coverage while wondering how Cindy made this look so easy. The answer, of course, is that she made it look easy because she was exceptionally good at it.

Jurists and coworkers are liberal in their praise and awe of Cindy. Chief Justice Hinkson states: In the early period after my return to the court, the Chief Justice of the Court of Queen’s Bench in Alberta and I discussed scheduling in our respective courts, and I explained how well our system worked, due to Cindy’s hard work and foresight. He asked me to lend Cindy to him for a week, and at the end of the week was effusive in his praise and respect for Cindy. On another occasion, I was being pressed by the bar in a city where there was no resident judge, to give them more judge and then master time. I arranged to travel to the city with the ACJ and Cindy to meet with the Bar

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who, while not happy with our advice, seemed willing to accept it, in large measure due to Cindy’s persuasive statistical explanation. During my last stint on the Supreme Court, Cindy became eligible to retire. I begged her not to, as long as I was still on the court, and she agreed, making my life as manageable as she could. Finally, there is the matter of the crystal rugby ball decanter that I kept in my office, with a ready supply of scotch. Many members of the court found their way to my office, invited or otherwise, at the end of the day, to help me make sure that I didn’t have too much scotch. Scotch is about the only thing I recall Cindy imbibing in, so I not infrequently asked her to join judges in my chambers to share a wee dram or two. She was always well received by those who attended, and clearly well-liked by those thirsty souls.

Cindy brings this same air-traffic control professional intensity and energy to sports, particularly soccer, which she continues to play at a competitive level in retirement. Her soccer successes are integrally tied to the court. She has played competitive senior women’s soccer with fellow defence/midfielder Associate Judge Sandra Dick since 2013, after being introduced by teammate (and long-time Nanaimo scheduling manager) Michelle Schley. That year, their team won a silver medal at the World Masters Games in Torino, Italy. She and Dick A.J. also played soccer in the World Masters Games in New Zealand in 2017. Their team won the soccer gold medal at the 2022 Canada 55+ Games in Kamloops. In 2023, their soccer team won the gold medal at the Huntsmen World Senior Games in St. George, Utah (Cindy also participated in the softball competition). They are presently making plans to play soccer in the World Masters Games in Japan in May 2027. Cindy and Dick A.J. also play against each other in other soccer tournaments; Cindy reports that she greatly prefers to have her as a teammate as she is a force on the field. She has also played soccer with Justices Jennifer Duncan and Baljinder Girn. Cindy attributes her superhuman professional energy to her equally zealous pursuit of sports: It was important to take care of myself by eating right and exercising, in particular, running and soccer have always been extremely effective at reducing stress. Soccer remained a big part of my life as a player and as a coach/assistant coach/manager for my team and my daughter’s team. Always planning and organizing for tomorrow’s activities was the only way to stay on top of everything. Which is how I managed things at the courthouse, but with an eye on next week, next month and next year.

Chantelle Sanderson, the Assistant to the Director and Deputy Director of Supreme Court Scheduling, recounts the fruits of this philosophy: Cindy would physically run to and from the Chief’s office.

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Twice a day she would come out of her office and say “ok, you know what we have to do” to which we generally moan but comply, as it was time for us to do our daily squats, desk push ups and walk to the end of the hall and back. Without fail, every Monday morning she would come out and ask us about our weekends. I’ve played soccer with Cindy, and her director tendencies definitely transfer to her corralling her teammates to warm up, be ready and in the right positions!

She somehow found time to provide considerable community service, focused on her beloved soccer. She served on the Port Coquitlam Soccer Club board for almost 20 years, from 2004 to December 2025. From 2017 to 2024, she served on the Metro Women’s Soccer League board: the main Lower Mainland women’s league, with some 200 teams in multiple divisions. She also served on the board of the Port Coquitlam Sports Alliance. Some people, particularly after a demanding career, are at a loss in retirement. Not so much Cindy. She has further expanded her athletic pursuits, including seniors slo-pitch, pickleball, soccer, whiffleball, running, hiking and the gym. In addition to her ongoing sports, she is dedicated to her ever-growing family. In 1982, she met her future husband Ross Friesen at the New Westminster night club, “The Time and Place”. Ross is a professional drummer: he is a member of Strange Advance, whose 1985 hit “We Run” is well known to those of my vintage from its perpetual rotation on MuchMusic. As a lesser gig, he also played drums for the judicial in-house band, The Band, a/k/a “No Reserves” (with such musical luminaries as Justices Mary Humphries, Jon Sigurdson, Liz Bennett and Mark McEwan). In retirement, Cindy has taken on tour coordination duties for Strange Advance. She finds it easy and fun to travel with and support six musicians and two crew members after decades of coordinating for the Supreme Court judiciary. Ross was integral to Cindy’s success, and, in turn, the success of court scheduling: an appropriate role for a drummer. He served as a stay-at-home dad for the early years when their daughters, Carly and Robyn, were young. As they got busier and more involved with outside interests, Cindy and Ross became hyper-organized taxi drivers. Hinkson C.J.S.C. presided over Robyn’s call ceremony when she became a notary public in May 2020. She has worked as a notary in her own firm in Parksville since September 2024 and is married to Liam. Carly was an Education Assistant in the Vancouver School District before she turned her full-time attention to raising Cindy’s grandchildren (now aged 7, 5 and 4). She is married to Nicola.

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Cindy’s retirement leaves a massive gap at the centre of court logistics and life. Happily, she has mentored a strong team well equipped to step into the demanding role. Her former colleagues on the court wish her the best for a well-deserved and not sleepy retirement. ENDNOTES 1. The earliest known publication of this aphorism appears in an 1856 report of Reverend WJ Kennedy, the Inspector of Schools for Lancashire and the Isle of Man. 2. She shares this honour with Justice Bruce Cohen, appointed to the court in March 1987, who retired as the court’s communications officer in March 2026, after over 39 years on the secure side of the courthouse. 3. Cindy recounts, with recoil, that she was hired in New Westminster by Mark Bakker, the court senior manager, who was later convicted in August 1994 of sex crimes committed from 1975 to 1991, mostly on boys: R v Bakker, 1999 BCCA 84. Justice Raymond Paris was the trial judge. Various court libraries around the province display a framed collection of historic British Columbia court registry stamps. They were assembled by Mr Bakker. 4. Now rebranded as OXD. 5. Everything old is new again: effective October 1, 2026, the procedure for bringing applications under Rule 8-1 of the Supreme Court Civil Rules and Rule 10-6 of the Supreme Court Family Rules will change, moving from the current “file and serve” approach to a “serve and file” method. 6. 2025 Supreme Court of British Columbia Annual Report at 10. 7. Matthew Frank, “Court delays in sex-assault cases increase despite Supreme Court deadlines, report finds, Globe & Mail (11 July 2026). 8. See e.g., Keith Fraser, “Chief Justice Christopher Hinkson ‘frustrated’ by judge shortage at B.C. Supreme Court” Vancouver Sun (8 February 2018); Cristin Schmitz, “Bar complains of long delays in naming federal judges” Law360 Canada (17 January 2018). In each of March 2017 and January 2018, for example, there were 12 vacancies out of 93 permanent Supreme Court positions.

9. Justice Thomas Melnick. 10. Justice Melnick. 11. Justice Melnick delivered reasons for judgment at Invermere on December 23, 2013. 12. Justice Mark McEwan. 13. The old Chilliwack courthouse had formerly served as an orphanage and was not up to seismic standards. Jury selection took place in the basement of the church across the street from the courthouse, until someone contested the use of the church for a court proceeding. It was reported that the very large men’s washroom had also been used on a couple of occasions for brief applications, as there was no other room available. 14. Chief Justice Hinkson was the first Supreme Court justice to preside in Port Coquitlam in its new status. 15. Digital Audio Recording System. 16. Of course, a judge assigned to a long criminal trial could easily sit 16 or more weeks away from home in a year. 17. Justice Hutchison, a 100- and 200-metre runner in the 1952 Olympics, died on July 15, 2025, at age 94. 18. I have used the spelling used by enthusiasts who aspire to summit all peaks set out in various alpine lists. The concept of peak bagging was popularized by Sir Hugh Munro, who in 1891 published a list of 300 peaks in Scotland over 3,000 feet: with current technology, and rules for prominence marking distinctive peaks, the current list numbers 282 Scottish “Munros”; see D Crerar, H Crerar and B Maurer, The Glorious Mountains of Vancouver’s North Shore: A Peakbagger’s Guide (RMB: 2018) at 16. 19. Not to flex, as the young people say, but I am only four courthouses away from completion despite having been appointed considerably later than those three eminent jurists. 20. Before her translation to the Court of Appeal.

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BREAKING THE DEADLOCK: TEN PRACTICAL STRATEGIES FOR SUCCESSFUL FAMILY MEDIATION By David A. Paul, K.C.

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hile most mediations resolve, some stall, even with skilled counsel and engaged parties. Over time, familiar patterns recur. What follows are common pressure points in family mediation, along with practical ways to address them. With proper preparation and attention to both the process and the participants, many impasses can be avoided before they harden into deadlocks. 1. Insufficient Preparation Effective mediation starts with preparation. Legal arguments alone are rarely enough. The parties need a clear understanding of the facts, finances and practical goals, supported by complete, up-to-date disclosure and, where appropriate, joint valuations. Without that foundation, mediation often loses momentum and settlement opportunities are missed. Pre-mediation meetings serve as a catalyst for a successful day. By addressing valuation disputes, disclosure gaps, timing concerns or clientspecific challenges in advance, counsel and the mediator can clear the path for meaningful negotiation. From the mediator’s perspective, these meetings are invaluable for understanding the unique interpersonal dynamics at play, enabling a process that is both responsive and structured. Well-prepared mediation briefs are indispensable strategic tools. A concise, focused brief does more than summarize; it frames the core issues, clarifies positions and provides a possible roadmap for the day. When done well, it sharpens the parties’ focus and ensures that time is spent on resolution rather than clarification, making settlement more likely. 2. Trust and Disclosure Concerns Without trust, negotiation slows or stalls. Concerns about incomplete disclosure, hidden assets or past conduct can erode confidence in the process. When trust is limited, progress depends less on persuasion and more on verification. Full and timely disclosure, supported by independent experts where appropriate, helps restore confidence and enables discussions to proceed on a more reliable footing.

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3. Lack of Party Buy-In Mediation is most effective when participants are truly engaged rather than merely present. I have observed mediations stall early when a participant, sometimes jokingly, says, “I’m only here because the judge told me to be.” When asked about their objectives, they may respond, “Nothing. This won’t settle.” That mindset creates an immediate barrier. Individuals who attend mediation solely to fulfil a requirement are often disengaged and less willing to compromise. Lawyers can pre-empt this mindset by explaining that mediation is an opportunity for control, not just a procedural hurdle. When clients understand the process, feel heard and have explored settlement options beforehand, they are more likely to engage as active problemsolvers rather than passive observers. 4. Unrealistic Expectations Early discussions often reveal a gap between a party’s expectations and the likely legal reality. Counsel play a vital role in grounding these expectations by aligning them with relevant legislation, guidelines and recent case law. While comparable decisions may not eliminate a client’s disappointment, they provide the necessary framework for informed decision-making. Clients should also be encouraged to see value in incremental progress; even if a full resolution is not reached, partial agreements can narrow the issues, reduce litigation costs and ensure that any future court time is sharply focused. 5. A “Win-or-Lose” Attitude Mindset matters. When parties view the session as a “dry run” for trial or a contest to be won, progress inevitably stalls. Mediation is not a trial rehearsal. It is a forward-looking negotiation. Lawyers can facilitate this shift by moving the dialogue away from rigid positions and toward underlying interests, the fundamental needs and drivers that inform those positions. By applying the principles of interest-based negotiation, as popularized in Getting to Yes,1 parties can often uncover shared objectives and expand the range of practical, workable solutions. 6. Resistance to Compromise Mediation often stalls when parties adopt rigid, all-or-nothing positions. Progress requires flexibility. When participants listen to understand rather than merely reply, they are more likely to identify what drives each position and become more open to meaningful compromise. Lawyers can help by reframing compromise as a focus on substantive priorities rather than a concession. When clients learn to distinguish between essential issues and symbolic matters, they are often more willing to participate constructively.

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7. Emotional Dynamics Emotions often shape how parties hear and respond to proposals. Unmanaged anger, fear and mistrust can derail a mediation, turning a substantive discussion into a reactive one. Counsel can help clients prepare for the emotional aspects of mediation by discussing the risks of reactive decision-making and, where appropriate, encouraging supports such as counselling or coaching. Strategic process design also matters. Shuttle mediation provides a buffer against direct confrontation, while online platforms offer a sense of safety and accessibility, particularly in high-conflict cases. In my experience, participants communicate more effectively when they feel physically and psychologically secure in their environment. Innovations such as canineassisted mediation2 underscore that mediation is not one-size-fits-all; even subtle environmental adjustments can reduce anxiety, foster openness and enhance engagement. 8. Poor Communication Even when parties are willing to compromise, poor communication can derail the discussion. Sarcasm, interruptions, threats or accusatory language can shut down the discussion. Without a baseline of respectful dialogue, even the most reasonable proposals may go nowhere. Lawyers and mediators play a vital role in shaping the tone of discussions. By modelling constructive communication and reinforcing clear standards, they can help keep the focus on solutions. Simple practices can make a meaningful difference: keeping the conversation focused on the future, speaking without blame, ensuring each party feels heard, and managing emotional tone. When communication improves, misunderstandings are caught early before they harden into entrenched positions. A brief guide to communication techniques is found in Appendix A to this article. 9. Timing and External Influences Timing can shape the outcome of a mediation. I have mediated cases soon after separation, when parties are still processing events, and cases after years of litigation, when positions are entrenched. In both scenarios, timing often determines the outcome more than legal merit. External influences can also play a role. Well-meaning friends or family may unintentionally reinforce rigid positions or unrealistic expectations. Counsel should be alert to these dynamics and help clients stay focused on their priorities and the issues that need resolution. 10. Failing to Finalize the Agreement A common risk arises when parties reach a preliminary agreement but

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leave the mediation without putting it in writing. Agreements that are not immediately memorialized in writing are inherently vulnerable. Details become unclear, assumptions are made, and momentum is lost once everyone leaves the room. I have seen solid agreements unravel for that reason alone. At the same time, parties should not feel compelled to remain in mediation if they are fatigued or have other commitments. If they need to leave before drafting is complete, arrangements should be made to complete the drafting promptly, ideally with the mediator. Finalizing the agreement while momentum is high helps protect both the terms and the process. Of course, settlement terms should clearly specify timelines and responsibilities in unambiguous language that provides clear direction not only to the parties but also to third-party stakeholders, such as lenders, schools and others who may need to act under the agreement. Counsel can help move things along by bringing draft clauses or precedent wording to the mediation. Having language ready shortens the time needed to finalize terms. CONCLUSION Most mediations resolve. When they do, it is usually the result of preparation, realistic expectations and a willingness to engage in the process. When an impasse occurs, it is seldom due to a single issue. More often, it reflects a combination of factors: gaps in disclosure, timing, entrenched positions or how the discussion unfolds. Many of these can be identified and addressed in advance. Counsel play a key role in this process. Careful preparation, clear client guidance and disciplined management of the dialogue can transform a high conflict into a solvable problem. Even without full resolution, mediation is seldom wasted. It narrows the issues and clears the path forward, whether through further negotiation or through litigation.

APPENDIX A: A Practical Guide to Communication in Mediation 1.

2.

Keep the Conversation Forward-Looking Focusing on solutions rather than past grievances helps maintain momentum. •

Effective: “Let’s work out a plan that helps both of us move forward.”

•

Less effective: “You always mess things up as you did before.”

Speak Without Blame Reducing defensiveness allows parties to engage with substance.

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Use “I” statements: “I feel unheard when my perspective isn’t acknowledged.”

• Avoid accusations: “You never listen.” • Use neutral language: “I’d like to explore another option.” 3.

Ensure Each Person Feels Heard Conflicts often escalate when parties feel ignored. • Structured turn-taking • Reflecting and clarifying understanding • Asking questions for understanding • Acknowledging the other person’s perspective

4.

Regulate Emotion and Tone Emotional intensity is natural but should be expressed constructively. • Express frustration without escalation • Take breaks when needed • Maintain a calm and respectful tone ENDNOTES

1. Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (Boston: Houghton Mifflin, 1981).

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2. Online: <https://journals.law.harvard.edu/hnlr/ wp-content/uploads/sites/91/HNLR-Paul-Final. pdf>.

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LEGAL MAXIMS: ON THEIR SOURCE, NATURE, USE AND MISUSE PART II* By Joanne Lysyk

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his is the second part of an article of which Part I appeared in the July issue of the Advocate. Part I addressed the source, nature and use of maxims. Part II addresses the problem with maxims, and provides a particular case study: the maxim “no one shall obtain an advantage by his own wrong” (nullus commodum capere potest de injuria sua propria). THE PROBLEM WITH MAXIMS The problem with maxims is that they express principles—basic, general, very broad principles—in a form that suggests they are rules.1 They are usually expressed as full sentences and are often phrased in mandatory terms; for example: “no person may do such-and-such” or “a such-and-such cannot be soand-so.” But they are not rules. They are the stuff that rules are made of. In this article, I adopt the distinction between a “rule” and a “principle” defined in Ronald Dworkin’s 1967 article “The Model of Rules”.2 That distinction will be discussed further below. But, first, let us return to the quote from Lord Esher that I set out in Part I of this article, that is: “I detest the attempt to fetter the law by maxims.” So, what did Lord Esher have against maxims? The truth is that my excerpt is somewhat misleading. Lord Esher’s objection was not as much to maxims themselves as to their misuse. Here is the full quotation, seen in the context of Lord Wright’s subsequent decision in Lissenden v. CAV Bosch Ltd.,3 where Lord Esher’s point is better explained: I am induced here to quote the language of Lord Esher MR, in Yarmouth v. France, at p. 653: ‘… I detest the attempt to fetter the law by maxims. They are almost invariably misleading: they are for the most part so large and general in

* This two-part article derives from a paper that the author presented to the 20 Club on May 7, 2026. Part I is found at (2026) 84 Advocate 533.

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their language that they always include something which really is not intended to be included in them.’ Indeed, these general formulae are found in experience often to distract the court’s mind from the actual exigencies of the case, and to induce the court to quote them as offering a ready-made solution. It is not safe to act upon them, however, unless, and to the extent that, they have received definition and limitation from judicial determination. [emphasis added]

Later on in Lissenden, Lord Wright explains that the particular verbal formula relied on in that case (the “principle, rule or maxim that one cannot both approbate and reprobate”)4 had evolved to become the equivalent of the equitable doctrine of election, with specific rules as to the circumstances in which it applied: “[i]n such and similar cases, the formula becomes, as it were, a label, and lawyers know when and where to apply it.”5 And this is true of many maxims. Difficulties arise, however, in circumstances where the specific rules that are applicable in a particular context have not been fully developed and refined, or where they are overlooked by the parties or the court, or where the maxim is mistakenly taken for a rule in and of itself, independent of already established rules (which may be based on the very same principle that the maxim expresses). In such cases, the maxim itself in its raw form is sometimes relied on, erroneously, as a “ready made solution” to the case at hand. RULES VERSUS PRINCIPLES I return to Ronald Dworkin’s distinction between legal rules, on the one hand, and principles or policies of the law on the other. The distinction is not the main point of his article,6 but what he has to say on that point dovetails nicely with Lord Wright’s comments in Lissenden. Dworkin points to two differences between principles and rules. First, rules are of an absolute, all-or-nothing nature. Principles are not: The difference between legal principles and legal rules is a logical distinction. Both sets of standards point to particular decisions about legal obligations in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.7 … But this is not the way [principles] operate. Even those which look most like rules do not set out legal consequences that follow automatically when the conditions provided are met. We say that our law respects the principle that no man may profit from his own wrong, but we do not mean that the law never permits a man to profit from wrongs he com-

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mits. In fact, people often profit, perfectly legally, from their legal wrongs. The most notorious case is adverse possession – if I trespass on your land long enough, some day I will gain the right to cross your land whenever I please. There are many less dramatic examples…. We do not treat these – and countless other counter-instances that can easily be imagined – as showing that the principle about profiting from one’s wrongs is not a principle of our legal system, or that it is incomplete and needs qualifying exceptions. … A principle like “No man may profit from his own wrong” does not even purport to set out conditions that make its application necessary. Rather, it states a reason that argues in one direction, but does not necessitate a particular decision. If a man has or is about to receive something, as a direct result of something illegal he did to get it, then that is a reason which the law will take into account in deciding whether he should keep it. There may be other principles or policies arguing in the other direction – a policy of securing title, for example, or a principle limiting punishment to what the legislature has stipulated. If so, our principle may not prevail, but that does not mean that it is not a principle of our legal system, because in the next case, when these contravening considerations are absent or less weighty, the principle may be decisive. All that is meant, when we say that a particular principle is a principle of our law, is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one direction or another.8

Second, principles have a dimension (that of weight or importance) that rules do not: Where principles intersect…one who must resolve the conflict has to take into account the relative weight of each. This cannot be, of course, an exact measurement, and the judgment that a particular principle or policy is more important than another will often be a controversial one. Nevertheless, it is an integral part of the concept of a principle that it has this dimension, that it makes sense to ask how important or how weighty it is. Rules do not have this dimension…. [W]e cannot say that one rule is more important than another within the system of rules, so that when two rules conflict one supercedes the other by virtue of its greater weight. If two rules conflict, one of them cannot be a valid rule. The decision as to which is valid, and which must be abandoned or recast, must be made by appealing to considerations beyond the rules themselves. A legal system might regulate such conflicts by other rules, which prefer the rule enacted by the higher authority, or the rule enacted later, or the more specific rule, or something of that sort. A legal system may also prefer the rule supported by the more important principles. (Our legal system uses both of these techniques.)9

At the risk of putting words in their mouths, I think what Lord Esher and Lord Wright are saying, in the passages quoted above, is that maxims are too broad and general to function as rules in and of themselves. A maxim, or the principle it expresses, may drive a particular rule or doctrine and lend

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its name to that rule or doctrine. But it will require considerable refinement before it transforms into a rule. Terms must be defined, tests developed, exceptions recognized and the scope of the rule otherwise constrained. NO ONE SHALL OBTAIN AN ADVANTAGE BY HIS OWN WRONG: A CASE STUDY Take, for example, the maxim “no one shall obtain an advantage by his own wrong” (nullus commodum capere potest de injuria sua propria).10 In what contexts does the maxim apply? What does “wrong” mean in those contexts? What qualifies as an “advantage” (or “profit”, as the term commodum is sometimes translated)? What is the necessary causal connection between the wrong and the advantage sought or obtained? What limits or exceptions are demanded by countervailing principles or policy concerns? All of these questions must be answered in formulating the rule governing a particular case, if no rule has already been established. In the words of Lord Wright, the maxim alone does not provide a “ready-made solution” for any litigant who can frame their case as falling within its very broad language. The decision of the Supreme Court of Canada in Hall v. Hebert11 provides an example—indeed, perhaps an exemplar—of the use of maxims to develop a legal rule. The case involved the doctrine of illegality as it relates to the recovery of tort damages in circumstances where the plaintiff’s injuries are sustained during the course of an unlawful act. Justice McLachlin gave the majority judgment. She recognized two maxims as being engaged in the case: ex turpi causa and the maxim that no person may profit from his or her wrong (the “no man shall profit” principle). Underlying both these maxims, she recognized an even more fundamental principle: the principle of integrity in the law. To allow recovery for what is illegal, she said, would: …put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. It would, in short, introduce inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony. For the courts to punish conduct with one hand, while rewarding it with the other, would be to “create an intolerable fissure in the law’s conceptually seamless web”. Weinrib, at p. 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system.12

I note that this insight has proven to be quite influential in common law jurisdictions outside of Canada. In Patel v. Mirza,13 Lord Sumption said that “[t]he most influential statement of that principle [the principle of integrity] is to be found in the much admired judgment of McLachlin J. delivering the

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judgment of the Supreme Court of Canada in Hall v. Hebert…”.14 He noted that her analysis had been “consistently adopted in England in tort and contract cases alike by this Court and by the Appellate Committee of the House of Lords before it.”15 Taking into account the underlying rationale of the ex turpi causa maxim, McLachlin J. held that recovery in tort should be permitted even where the injuries resulted from participation in an unlawful activity, unless to do so would permit the plaintiff to profit from his or her own wrong or to evade a penalty imposed by criminal law. In the tort context, the questions posed above are all answered, based on the principles and policy considerations identified by McLachlin J., so as to arrive at a well-defined rule: (a) a “wrong” in this context must be conduct or a transaction of such a nature as to attract the ex turpi causa doctrine, that is, it must be illegal or immoral;16 (b) “profit” for the purpose of the rule means “a direct pecuniary reward for an act of wrongdoing”.17 Ordinarily a compensatory award for personal injury will not qualify. Such an award merely restores the plaintiff to the position they would have been in had the tort not occurred—the plaintiff is in no better position because of the unlawful conduct. However, certain heads of damages, such as exemplary damages, may be barred in that they would reward the plaintiff for unlawful conduct; and (c) the necessary causal relationship flows from the definition of profit. The advantage in question must be one that directly accrues from the illegal conduct, such that the plaintiff would be rewarded for they wrongdoing. Hall v. Hebert illustrates the kind of refinement which a maxim must undergo before it can be transformed into a rule of law. But it is important to note the judgment only relates to one specific category of case where the “no man shall profit” maxim has been invoked. The definitions and rules which the Supreme Court of Canada recognized in Hall v. Hebert do not purport to apply outside of that category. Let us turn to an area where the law is less well-settled. In a contractual context, a party may be barred from relying on a contractual remedy based on their conduct, and the rationale given for the bar is often (but not always) that no person may profit from their own wrong. Most, but not all, of the cases where the maxim is cited fall within one of the following four categories: (a) where a contract provides that an agreement will become void or terminate in the event of a specific default, in which case the provision

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is interpreted as meaning that the agreement is voidable, or subject to termination, only at the option of the non-defaulting party;18 (b) where an agreement is subject to a condition precedent, and one party has (i) interfered with or prevented the satisfaction of the condition, (ii) failed to cooperate in its satisfaction or (iii) failed to exercise reasonable or best efforts to satisfy the condition despite being contractually required to do so, in which case that party may not rely upon the non-satisfaction of the condition precedent in order to avoid liability under the contract;19 (c) where a contract makes time of the essence, particularly in the context of a real estate transaction, and one party’s conduct has made it impossible to comply with a strict contractual deadline (e.g. a closing date), in which case that party is prevented from relying on the contractual deadline;20 and (d) where a party argues that a contract has been frustrated, but the frustrating event is the direct result of the party’s own actions (selfinduced frustration).21 It is not clear whether the above categories represent different applications of the same rule, separate rules united by the same underlying principle or, perhaps, separate rules supported by differing principles. Further, to the extent that a single rule is involved in all of these cases—something along the lines of “a contracting party may not take advantage of his or her own wrong”—the scope of the rule is not clear. For example: (a) the definition of “advantage” in this context is not clear. It will be noted that in all of the above scenarios, the party said to be taking advantage of their own wrong was seeking to be released from their obligations under the contract. It is not entirely settled whether the same rule applies where the guilty party is not seeking to terminate the contract but rather to obtain a benefit under it;22 (b) the definition of “wrong” is not clear. Clearly, “wrong” has a different meaning in this context than it does in the context of the illegality defence in tort, as discussed in Hall v. Hebert. The case law23 demonstrates a breach of the contract will suffice, and probably the breach of some related obligation implied or imposed by law, such as an obligation of cooperation or good faith. But it is not clear whether other “wrongs” can be invoked;24 and (c) the necessary causal connection between the wrong and the advantage is not clear. In many of the cases, it could be said that

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the guilty party’s conduct undermined the very purpose of the contractual term from which they sought to benefit. But it may be that nothing more is required than a purely but-for causal connection between the wrong and the event on which the guilty party relies as triggering the relief that they seek.25 Finally, the very nature of the rule (or rules) is not clear. Is it merely a rule of construction, which presumes that the parties do not intend to reward a breach of contract unless they have very clearly expressed that intention? Or does the rule have greater force, allowing a court to override the contract where necessary in order to prevent one of the parties from benefitting from their own wrong? This latter question was posed to the House of Lords in Alghussein Establishment v. Eton College.26 The case involved a very poorly drafted agreement between a landlord and a prospective tenant, pursuant to which the tenant was to be granted a 99-year lease and a licence to enter onto the property and develop it prior to the execution of the lease. The tenant was obliged to use best efforts to develop the property “as soon as is reasonably practicable” (Clause 3). However, the agreement also provided (in Clause 4) that, if “for any reason due to the wilful default of the Tenant” the tenant did not complete the development by a specified date, “the Lease shall forthwith be granted and completed as aforesaid but without prejudice to the provisions of Clause 3 hereof.” A form of lease was attached which contained no covenant to build but rather assumed that the property was being leased as fully developed. The tenant made no start on the work before the specified date and the landlord eventually wrote to the tenant informing it that the agreement was terminated based on the tenant’s repudiation which the landlord accepted. The tenant commenced an action claiming, among other things, that if it was in wilful default then the landlord was obliged to grant it a lease in the agreed form pursuant to Clause 4.27 Counsel for the landlord conceded that, if the lease had to be construed literally, the tenant was entitled to a lease. However, he argued against a literal interpretation on the basis that it would give rise to inconsistency and absurdity. In the alternative, he contended that: …the principle that no man can take advantage of his own wrong was either a rule of construction which was subject only to express contrary provisions in the contract or, alternatively, an absolute rule of law and morality which operated as an estoppel whatever the parties had agreed.28

Lord Jauncey gave the unanimous judgment of the House of Lords. He proceeded first to interpret the agreement based on the avoidance of absurdity and the “no man shall profit” maxim, taken together, as matters of

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construction.29 In light of the inconsistency between Clause 3 and Clause 4, and the “bizarre” consequences of interpreting Clause 4 literally, Lord Jauncey said that this was not a case where “the agreement contains clear express provisions to contradict the presumption that it was not the intention of the parties that either should be entitled to rely on his own breach to obtain a benefit.”30 Therefore, the agreement should not be interpreted as permitting the tenant to invoke Clause 4. Given this conclusion, it was not necessary to decide whether there was “an absolute rule of law and morality” that applied “whatever the terms of the contract”. However, Lord Jauncey noted: For my part, I have no doubt that the weight of authority favours a view that, in general, the principle is embodied in a rule of construction rather than an absolute rule of law. However, that is not to say that there cannot be situations such as self-induced frustration, to which Lord Diplock referred in Cheall’s case,31 where an absolute rule exists. It is neither necessary nor would it be profitable to explore the matter further in this case.32

But what if the Lords had decided that they could not interpret the contract so as to avoid the absurd consequences of literally construing Clause 4? What if they had decided, despite their misgivings, that the parties must be taken to have agreed that the plaintiff should have an incentive to breach the contract? What if they had had to consider whether the parties’ agreement could, and should, be overridden on the basis that the plaintiff must not be permitted to take advantage of its own breach? In that event, the application of the “no man shall profit” maxim would seem to come directly into conflict with another principle at least as fundamental: freedom of contract. The House would have had to consider whether the “no man shall profit” principle, alone or together with other policy considerations, was sufficiently weighty to justify an incursion upon the fundamental principle that the agreement is the law of the parties—that they are free to define their rights and obligations as against one another— in the context of a valid contract between two commercial parties of equal bargaining power. And it would have had to consider the extent of the incursion that was justified, that is, the scope of the maxim in this context, by formulating a test for its application that took into account the countervailing principle of freedom of contract, among other considerations.33 Reflecting on this line of case law, it seems to me that resort to the “no man may profit” maxim is arguably unnecessary in at least three of the four circumstances where it has been relied on (the exception being self-induced frustration, as noted by Lord Jauncey). For example, take the first category of case described above. Here, we have a fairly narrow rule, generally applied in cases of imperfect drafting where the court—or any reasonable party—

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looking at the literal meaning of the contractual language, in the context of the dispute that has arisen, would say “that simply cannot be what they intended.” As a matter of common sense and commercial reality, parties are highly unlikely to agree that one of them should be incentivized to breach the contract. As such, the issue is arguably an interpretative one where it is appropriate for a court to give effect to reasonable commercial expectations in the face of language that, if interpreted literally, will produce a result that the court thinks the parties cannot have intended.34 As the Supreme Court of Canada recently confirmed, “a court may deviate from the plain meaning of the words if a literal interpretation of the contractual language would lead to a commercially unrealistic or absurd result.”35 And indeed, that was, at least in part, the reasoning behind the Alghussein decision. Similarly, the second and third categories could possibly be explained with reference to alternate rules of construction or possibly as governed by the law of waiver, estoppel or election.36 Finally, although it may be that the maxim has a role to play in relation to self-induced frustration, as Lord Jauncey acknowledged in Alghussein, it seems to me that there might also be other reasons for holding that an event arising as a foreseeable consequence of a party’s own actions does not meet the definition of frustration.37 In these circumstances, it seems to me that the maxim is, for the most part, simply a distraction and its broad terms are likely to lead to confusion and uncertainty. This area of the law would arguably be better off without it. CONCLUSION Maxims, or the principles they express, have a valuable role to play. Used properly, as in Hall v. Hebert, they assist in developing the law as a consistent and coherent system. I agree with Ronald Dworkin and with our former Chief Justice that this consistency and coherence are at the heart of what gives law its legitimacy and authority. However, unless treated with care, maxims can (as Lord Wright said in Lissenden) simply distract the mind from “the actual exigencies of the case”. In short, maxims are a little like prescription medications: used properly, and in the right measure, they are valuable or even essential but used carelessly they have the potential to do more harm than good. ENDNOTES 1. I think the reason why they are expressed this way probably relates to their history. 2. 35 University of Chicago Law Review 14 [Model of Rules]. 3. [1940] 1 All ER 425 at 441 [Lissenden]. See also Patel v Mirza, [2016] UKSC 42 [Patel] at paras 95–

96 (per Lord Toulson); Sincennes-McNaughton Lines Ltd v R, [1926] Ex CR 150, 1926 CarswellNat 19 at para 14. 4. Lissenden, supra note 3 at 441. In Yarmouth v France (1887), 19 QBD 647, the maxim in question was volenti non fit injuria.

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5. Lissenden, supra note 3 at 441. 6. His point is that legal principles are “law” to at least the same extent as rules. When a court encounters a case that is not directly governed by precedent (i.e., not covered by an established rule) what it attempts to do is to formulate a rule that is consistent with precedent in that it respects the same principles as are disclosed by previous judgments and rules. In this sense, new rules come from the law (legal principles) and the old saw that judges find the law rather than making it is not a fiction. I think anyone would agree with this who has ever struggled to “find” the rules governing a case that does not clearly fall within the established precedents. But this reality is doubted by many legal theorists, some of whom say that, in the absence of precedents, a judge exercises their discretion (i.e., makes up the law based on what they think best), and some of whom say that a judge should decide cases based on what, in their view, the law ought to be rather than some theory of what it is. According to Dworkin, it is the law’s goal of consistency in principle, or integrity, that gives law its authority and justifies its enforcement by the authorities, including the courts. To oversimplify somewhat, and possibly misstate his thesis, the enforcement of obligations is justified because we all have essentially the same rights (equal protection) under the law. This point is more fully developed in Dworkin’s subsequent book, Law’s Empire (Cambridge, Mass: Harvard University Press, 1986). I note that it is also reflected in the reasons for judgment of McLachlin J in Hall v Hebert, [1993] 2 SCR 159, as discussed further below. 7. It might be objected that this definition fails to account for rules that have a discretionary element such as, for example, the well-established test for issuing an interlocutory injunction. As far as I know, Dworkin has not directly addressed that objection, but I think he might say that such rules are discretionary only in the “weak sense” that they (1) call for the exercise of judgment, and (2) are accorded appellate deference (see Model of Rules, supra note 1 at 32–34). To the extent that there are factors that could be said, as a matter of law, to be either relevant or not relevant to the exercise of discretion, which I think is the case when it comes to the balance of convenience (for example), then this may be a satisfactory response to the objection. 8. Model of Rules, supra note 1 at 25–26. 9. Ibid at 27. 10. A maxim of which Dworkin says that no one who “knows something of American law” would mistake it for a rule as opposed to a principle (Model of Rules, supra note 1 at 28). Unfortunately, however, I think that mistake has occasionally been made. 11. Hall v Hebert, supra note 6. 12. Ibid at para 17. 13. Patel supra note 3. 14. Ibid at para 230.

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15. Ibid at para 232. The issue in Patel was the test for restitution where money has been paid under an illegal contract that has not been performed. The UK Supreme Court split on the appropriate test (Lord Sumption was in the minority) but were unanimous in the result. There were six sets of reasons for judgment in the case, all of which cited Hall v Hebert with approval and accepted that the test for recovery must reflect the underlying policy concern of consistency in the law. I note that in Garland v Consumers’ Gas Co, [2004] 1 SCR 629, the Supreme Court of Canada addressed the availability of restitution in the context of an illegal contract based primarily on a straightforward application of the unjust enrichment test, with only a passing reference to the principle that “a criminal should not be able to keep the proceeds of his crime” (at para 57) and no reference to Justice McLachlin’s analysis in Hall v Hebert. However, I understand that the doctrine of unjust enrichment operates differently in the UK than it does in Canada. 16. McLachlin J did not expand on the meaning of “immoral” in this context but, given the rationale of consistency that she identified, it is difficult to see how its scope would extend much beyond illegality. 17. Hall v Hebert, supra note 6 at para 11. 18. See New Zealand Shipping Co v Société des Ateliers et chantiers de France, [1919] AC 1 (HL) [New Zealand Shipping]; Zippy Print Enterprises Ltd v Pawliuk (1994), 100 BCLR (2d) 55 (CA); Quesnel Forks Gold Mining Co v Ward, [1920] AC 222 (PC); Beitel v Sorokin (1973), 38 DLR (3d) 455 (Alta CA); Munsie v Cameron, [1950] 1 WWR 1024 (BCCA). The classic example is where a lease provides that it will become void on the nonpayment of rent for a specified time. The courts have not allowed tenants to invoke such a provision in order to terminate the lease by deliberately withholding rent. 19. See Southcott Estates Inc v Toronto Catholic School Board, 2010 ONCA 310; Nicola Valley Lumber Co v Meeker, [1917] 1 WWR 556 (BCCA); McDonald v Bell (1965), 53 WWR 449 (BCSC), aff’d 58 WWR 20 (BCCA); Graham v Wagman (1976), 14 OR (2d) 349, varied on other grounds, 21 OR (2d) 1 (CA); Walton v Landstock Investments Ltd (1976), 13 OR (2d) 693, leave to appeal ref’d, 1976 CarswellOnt 811 (SCC). 20. Indevco Properties Ltd v JB Franks Management Co (1989), 41 BCLR (2d) 76 (CA); Salama Enterprises (1988) Inc v Grewal (1992), 66 BCLR (2d) 39 (CA); Grewal v Lai, 2021 BCSC 844; 1319397 BC Ltd v Far East Consultants (BC) Ltd, 2023 BCSC 255. 21. Graham v Wagman, supra note 19; Markborough Properties Inc. v 841202 Ontario Inc, 1996 CarswellOnt 1326 (Ct J, Gen Div). 22. In Alghussein Establishment v Eton College, [1991] 1 All ER 267 [Alghussein], discussed further below, the House of Lords held that the rule (or principle) was not confined to cases where the guilty party sought to terminate the contract. See also Barclays Bank PLC v Metcalfe & Mansfield Alternative Investments VII

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Corp, 2013 ONCA 494, leave to appeal ref’d, 2014 CarswellOnt 450 (SCC). Lord Jauncey in Alghussein appears to have based this conclusion mainly on the broad language of the maxim: “[a] party who seeks to obtain a benefit under a continuing contract is just as much taking advantage of his own wrong as a party who relies on his breach to avoid a contract and thereby escape his obligations” (at 273). He could perhaps be criticized for disregarding the warnings of Lord Esher and Lord Wright in this regard, but he likely would have reached the same conclusion if he had considered the question from the perspective of commercial good sense. 23. As cited in notes 18–22 above. 24. See Commissioner of Agricultural Loans v Irwin, [1940] OR 489, where the Ontario Court of Appeal said that the rule in New Zealand Shipping, supra note 18 could apply where the conduct of a party seeking termination had brought about the event on which termination depended, even if that conduct was not a breach of contract— unless the contract expressly permitted the party to terminate in this manner. This conclusion, I think, requires resort to a separate principle in addition to “no man shall profit”: that a promise to pay (or otherwise confer a benefit) on the happening of a specified event implies a promise not to prevent that event from happening, with the result that the promise to pay becomes unconditional once the condition is prevented from occurring: Edward Coke, The First Part of the Institutes of the Laws of England; Or, A Commentary Upon Littleton, 18th ed (London: J & WT Clarke, 1823), 205b, cited in New Zealand Shipping, supra note 18 at 7–8. I note that there is a tendency for the “no man shall profit” maxim to be cited in the alternative, in support of a result that has already been reached on other grounds. In such cases the applicability of the principle is often discussed very briefly, and one can be left wondering exactly how the maxim applies in the circumstances and, in particular, what exactly is the “wrong” in that particular context. 25. Compare the trial decision in Barclays Bank v Metcalfe 2011 ONSC 5008 with the decision of the Ontario Court of Appeal in the same case (supra, note 22). The facts of the case (involving a complex network of contractual arrangements implementing an asset-backed commercial paper) are difficult to describe briefly. Essentially, there were three classes of notes held by the defendant Devonshire’s investors, which its agreement with Barclays required it to be able to repay. As regards one class of notes (the Class A notes), but not the other two, Barclays was required to make “liquidity payments” that were intended to permit Devonshire to pay its noteholders in the event of a market disruption. Pursuant to the agreement between Barclays and Devonshire, inability to pay the notes when due would constitute “insolvency” which in turn would constitute an “event of default” entitling Barclays to terminate the agreement

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and claim $1.2 billion by way of termination payments. Barclays breached the contract by refusing to make the liquidity payments in respect of the Class A notes and then engineered matters such that its breach was cured immediately before declaring an event of default based on Devonshire’s insolvency. In these circumstances, as regards the Class A notes, Barclays had brought about the very illiquidity that its liquidity payment obligation was meant to prevent, and then relied on that illiquidity to terminate the agreement. The same direct connection between Barclays’ liquidity obligations and the event of default relied on did not exist with respect to the other two classes of notes. It is for this reason, I think, that the trial judge held that the “no man shall profit” maxim did not prevent Barclays from relying on Devonshire’s insolvency as regards these two classes of notes. He was overruled on this point, however, by the Court of Appeal which held that (under all of the circumstances of the case), Barclay’s breach had caused Devonshire’s inability to repay all three classes of notes. The connection found by the Court of Appeal between Barclays’ breach, on the one hand, and the event of default on which it relied, on the other, appears to have been a purely causal butfor connection without reference to the underlying purpose of the liquidity payments (although the court did refer to facts suggesting that Devonshire’s insolvency with respect to all three classes of notes was a foreseeable consequence of Barclays’ actions). I note that, in the Barclays case, the “no man shall profit” maxim was relied on as an alternative to other grounds for dismissing Barclays’ claim, including misrepresentation and breach of good faith. This is an example of a case where reference to the maxim as an alternative ground for the result reached was unnecessary and, arguably, inadvisable. One wonders what resort to the maxim could add in circumstances where the doctrine of good faith was already in play. 26. Supra note 22. In British Columbia, the decision of Justice Lambert in Zippy Print Enterprises v Pawliuk, supra note 18 (which remains the leading case in this province on the subject) suggests that the maxim is at most a rule of construction, at least in the context of the first category of cases described above. Lambert JA said: “Whether the principle is stated on the narrow basis of bringing about events of default by wrongful acts or on the broader basis of being prevented from taking advantage of one’s own wrongful acts, there is no doubt that by a clear expression of intention the parties can contract out of the New Zealand Shipping principle.” See also Peake Real Estate Marketing Ltd v 0697604 BC Ltd, 2008 BCSC 1210 at paras 9–10. And, in Camy Properties Ltd v Celebration Christian Stores Ltd (1998), 56 BCLR (3d) 275 (CA), Huddart JA noted (at para 16), that the purpose of the New Zealand Shipping principle is to prevent injustice, and that it cannot be considered an injustice for a party to exercise the very rights vested in them by the contract. However, this

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issue has never been addressed by the Supreme Court of Canada and cannot be regarded as finally settled in Canada. In University of Alberta v AASUA, 2002 ABCA 99, Fraser CJA said (after referring to Alghussein supra note 22) that “the question remains open” (at para 29). 27. It will be noted that the facts of the case are very closely analogous to the classic case, mentioned above, where a tenant alleges that a lease has been terminated based on its own failure to pay rent—the main difference being that the tenant was seeking the grant of a lease, rather than termination. See note 18 above. 28. Alghussein, supra note 22 at 273 (emphasis added). 29. Lord Jauncey doubted whether the two arguments on construction could properly be separated (ibid at 273). 30. Ibid at 274. 31. Cheall v Association of Professional Executive Clerical and Computer Staff, [1983] AC 180. As a rule of construction, the maxim would not assist in a case of self-induced frustration since termination for frustration is not an express contractual remedy. It might, however, apply to an analogous contractual remedy such as force majeure. 32. Alghussein, supra note 22 at 274. 33. See Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 at paras 92–93, where Kasirer J explains that the duty of good faith in exercising contractual discretion, as he has defined it, “interferes very little with freedom of contract” because the parties would rarely expect a contractual discretion to be exercised in a manner unconnected with the purpose for which it was granted (see also Bhasin v Hrynew, 2014 SCC 71 at paras 79, 82–85). It seems to me that any common law (or equitable) doctrine which is proposed to be recognized as overriding freedom of contract should be subjected to a similar analysis and (as in Hall v Hebert) kept within narrow bounds, in those instances where it is used to override the manifest intentions of the parties—if it is to be used in that context at all. One might question whether an overriding rule, as opposed to a principle of interpretation, is required in circumstances such as those contemplated in the Wastech case. The concern, I suppose, is the potential for good faith duties to be excluded by contractual boilerplate (but perhaps this could be avoided by an approach that did not call them duties of good faith in the first place, but rather focused on the interpretation of the provisions conferring the discretion). 34. See Lapolla v Bostock Estate, 2017 ONSC 7448 at paras 56–57, where the New Zealand Shipping principle was relied on as an alternative to interpreting the agreement so as to produce “a sensible commercial result”. 35. Chandos Construction Ltd v Deloitte, 2020 SCC 25 at para 131. See also Consolidated-Bathurst Export

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Limited v Mutual Boiler and Machinery Insurance Company, [1980] 1 SCR 888 at 901; Group Eight Investments Ltd v Taddei, 2005 BCCA 489 at para 20. I note that considerations of commercial absurdity and common sense are arguably an aspect of the “context and surrounding circumstances” which according to Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 must be considered in interpreting any contract; see Ryan Mortgage Income Fund Inc v Alpine Credits Limited, 2017 BCCA 206 at para 37. I appreciate that there could be some hesitance to resort to considerations of commercial good sense and absurdity in the context of language that, on its face, is unambiguous in that this might encourage specious arguments—a litigant is obviously inclined to view any unfavourable and unexpected outcome as absurd. But, without such a presumption, what is the court to do when faced with language that, if interpreted literally, makes no sense in the context of such an agreement? Must it assume, against all reason, that the language reflects the parties’ intentions, such that it must be enforced unless some principle or policy concern, extraneous to the contract, militates against enforcement? In my opinion, it is far better for a court to find that the parties did not agree to something that the court knows they could not have intended, rather than adhering to the literal language and relying on a broad amorphous principle such as “no man shall profit” in order to save the parties from their own poor drafting. 36. Particularly where Party A is in default by virtue of delay yet seeks to hold Party B to strict time limits which Party A’s delay has prevented Party B from meeting. In Shaw Industries Ltd v Greenland Enterprises Ltd (1991), 54 BCLR (2d) 264 (CA), Justice Southin asked the question, “what is the legal position when both sides are in breach of obligations in which time is of the essence?”. She answered: “[A] party to a contract for the sale of land, who is in essential default, cannot be heard to complain of the wrongdoing until he has given the other the opportunity to do right and is himself ready to do right. To cast stones, one must be without sin or at least have expiated one’s sin” [emphasis in original]. 37. Frustration occurs “whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract”: Davis Contractors Ltd v Fareham Urban District Council, [1956] AC 696, as quoted in Peter Kiewit Sons’ Co v Eakins Construction Ltd, [1960] SCR 361 at 367 (emphasis added). See also Naylor Group Inc v Ellis-Don Construction Ltd, 2001 SCC 58 at para 53. The doctrine contemplates an unforeseen supervening event beyond the control of the parties, not the unilateral action of one of the parties: Graham v Wagman, supra note 19.

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USING A PETITION FOR A DECLARATION OF SUBSTANTIVE CONSTRUCTIVE TRUST TO RECOVER FUNDS By David Penner and Eric Main

OVERVIEW OF THE PROBLEM A familiar legal path may be more predictable, but sometimes a novel shortcut is cheaper and equally effective. The difficulty lies in finding it. One shortcut we would urge lawyers to consider is for efficiently recovering funds in “man-in-the-middle” (“MITM”) scams where the location of the funds is known but the bank requires an order to repay the funds. The familiar legal path involves a Norwich order, a notice of civil claim, service on the fraudster through alternative means, default judgment and finally an order for garnishment. We suggest that lawyers consider avoiding all these filings and chambers appearances in favour of a one-step process: by filing a petition for a declaration of a substantive constructive trust. For those unfamiliar with the MITM scam and the usual legal process, we offer some context before discussing the shortcut. THE MITM SCAM AND THE LONG WAY AROUND Typically, a fraudster perpetrates a MITM scam by infiltrating the e-relationship between unknowing parties. They gather information, financial or otherwise, and use it to impersonate one of the parties. They persuade the other party to redirect a legitimate payment to the fraudster’s bank account, often in the guise of “updating” payment information for a legitimate receivable. After discovering the fraud, the defrauded party can alert the bank and may be able to freeze the funds if they have acted quickly enough. But the bank will typically require a court order even to confirm the amount available, let alone to repay the funds. The usual process for lawyers in these cases is: 1.

Apply for a Norwich order requiring the bank to disclose the account holder’s identity.

2.

File a notice of civil claim and attempt service on the account holder.

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3.

Apply for an order for alternative service after the fraudster proves impossible to serve through ordinary service.

4.

Apply for default judgment after the fraudster fails to respond to the claim.

5.

Obtain a post-judgment garnishing order.

All of this involves multiple applications and chambers appearances, and it is not unusual to find out at the end of it that some or all of the funds have been diverted. At the end of it, the court may grant an order requiring the bank to repay the funds. But even where the process is successful, it can be expensive for clients, inefficient for the courts and unnecessarily drawn out. As an alternative, we have found that a simple petition can lead to the same result after a single chambers appearance. THE SHORTCUT In a MITM scam, the court may grant a declaration that the erroneous transfer gave rise to a substantive constructive trust, whereby the bank came to hold the funds in trust for the defrauded party. We will explain how and why. The constructive trust is an “ancient and eclectic”1 institution available “to hold persons in different situations to high standards of trust and probity and prevent them from retaining that which in good conscience they should not be permitted to retain”.2 A declaration of constructive trust requires the plaintiff to show that a monetary award would be inadequate or inappropriate, and identify property or proceeds thereof to which the plaintiff’s labour or money contributed. If the court finds a party holds funds in constructive trust for another, it follows that the court can order the return of those funds. There are two main categories of constructive trust: remedial constructive trusts and substantive (or institutional) constructive trusts. Briefly, a remedial constructive trust is available where a party wrongs another with regard to property, so that while no substantive trust relationship is brought into being, nonetheless a remedy is required in relation to that property.3 The wrong often involves a breach of fiduciary duty or unjust enrichment.4 A remedial constructive trust comes into being on the date of the court’s order. On the other hand, a substantive constructive trust arises at the time of the acts that brought it into being. The trust arises by operation of law and the court simply declares the date on which it arose. In the case of a party sending funds to a fraudster, the trust arises at the time of the erroneous transfer. Where a bank holds funds following a MITM scam, a petition to the court for a declaration that the erroneous transfer gave rise to a substantive constructive trust works because: (1) a petition is appropriate, as the fraudster

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has no entitlement to the funds; the defrauded party alone is interested in the relief sought; and (2) the circumstances are such that a monetary award is inadequate or inappropriate, and the applicant can identify the funds it transferred into the fraudster’s account. First, this approach finds support in Rule 2-1(2)(a) of the Supreme Court Civil Rules, which provides that a person must file a petition where that person alone is interested in the relief. In this case, the applicant has the sole legal or beneficial interest in the funds. The fraudster has no interest in the funds because the transfer is an error. At most, it can be said that the account holder is the recipient of the proceeds of fraud. Neither a mistake nor a fraud gives rise to an interest in law or equity. Therefore, there is no meaningful legal issue for the courts to resolve. Second, a monetary award is inappropriate because the legal steps required are disproportionate in the circumstances. In a MITM context, the erroneous transfer is only made because of the account holder’s fraud. Invariably, the MITM fraudster proves impossible to serve in the usual manner and fails to respond to the claim. For that reason, proceeding by notice of civil claim, with a view to a monetary judgment following trial, or more realistically default judgment, is unnecessarily costly and time consuming for everyone concerned, including the court. The existence of both these elements gives rise to a substantive constructive trust by the operation of law. All that remains is for the court to agree. CONCLUSION Filing a petition for a declaration of substantive constructive trust is a quick, economical and judicious approach to pursuing funds after a MITM scam. Affidavit evidence supporting a petition can identify the relevant funds and track their erroneous transfer into the fraudster’s account. Notice of the petition can be provided to the relevant bank which will typically understand the situation and will be willing to repay the funds once provided with a court order. We have brought two such petitions to the court (S-244447 and S-256958). Both have been successful. In each case the court declared the relevant bank held any funds from the erroneous transfer in trust for our clients. The court also ordered the return of the funds. Both hearings went smoothly, with the second lasting under 10 minutes. There is a shortcut to the long way around. We encourage lawyers to use it. ENDNOTES 1. Soulos v Korkontzilas, [1997] 2 SCR 217 at para 17. 2. BNSF Railway Company v Teck Metals, 2016 BCCA 350 at para 83 [Teck].

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3. Atlas Cabinets and Furniture Ltd v National Trust Co, [1990] BCJ No 719 at para 24. 4. Teck, supra note 2 at para 83.

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DAVID A. PAUL, K.C. Mediator Hundreds of mediations conducted province-wide In person and online Family Law • Personal Injury • Estate Litigation Contact (250) 828-9998 arlene@kamloopslaw.com www.bcmediators.com

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THE WINE COLUMN By Michael Welsh, K.C.*

Life is too short to drink bad wine. —von Goethe

RETURN IT; OR NOT (THE DOS AND DON’TS OF SENDING BACK WINE) So you don’t like that wine you just ordered in the restaurant, or brought home from the wine store. You want to send it back, but can you? Should you? For, to rephrase what Goethe is reputed to have said in the quote (although he did not exactly) life is short, so you should only drink what is good.1 But what is good or bad, and what is just what you do not like or did not expect? And in either case what is the proper way to address it: send it back or suck it up? First to the obvious. If the wine is truly bad, as in faulted, then you can and should return it. The trick is to know what constitutes a fault. Here are a few of the more common faults, with tips on how to spot them. 1.

Cork taint from 2,4,6-Trichloroanisole (“TCA”): this occurs in wine that is closed with corks, where fungi, mould or bacteria have affected the cork tree bark. Some three per cent of cork closed wines are affected, and we humans are extremely sensitive to it, sensing as little as one part in a trillion. It dulls the wine and gives

* Michael Welsh, K.C., carries on a litigation and ADR practice in the South Okanagan.

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it aromas of a mouldy wet basement and other similar musty “off” characteristics, or a cardboard or sometimes mushroom taste. 2.

Brettanomyces (“Brett”): this is a type of wild yeast that develops in a less than sanitary winery environment, that at lower thresholds can add complex, interesting saddle leather aromas, but at higher levels can be off-putting and make a wine undrinkable— like smelling a horse blanket or, worse, horse manure. There is also a metallic note on the wine finish.

3.

Sulfur defects: Generally from presence of mercaptans, this at low levels can be hard to pick up at times; a note of rotten garlic or onion, or cooked cabbage, or even rotten eggs or burnt rubber.

4.

Volatile Acidity (“VA”): the wine smells and tastes like vinegar, or smells like fruit covered in fruit flies.

5.

Ethyl Acetate (“EA”): The wine has a chemical smell and taste, often similar to nail polish remover or other solvents.

6.

Oxidation: The wine will have a brownish hue in reds and orangebrown in whites, and a taste like bad sherry, rotten walnuts or bruised apple (like when apple slices are left on the counter), with hints of vinegar at times. It arises most often from bad storage in overheated conditions. (This is a reason not to leave wine in your vehicle trunk during a summer winery tour.)

7.

Refermentation in the bottle: This is generally a combination of poor winemaking practice and poor storage. When opened the wine will be fizzy and cloudy, and smell and taste a bit like sour milk.

All of these situations arise from faults in the winemaking and storage, or use of tainted cork wood. If after sniffing the wine, or sniffing and tasting, you believe you detect one of these faults, ask for the sommelier or manager to do so as well. Most better restaurants have staff trained in wine and have the integrity to take back a flawed bottle. And if the restaurant does not, insist if you believe you are right, or even may be right. You are the customer and right is on your side. And the restaurant will likely be able to claim back its cost of the faulted wine from its supplier. Another good tip is to be preventative. When the wine is brought to the table, have the sommelier or server sample it first, and then do your own swirl, sniff and taste. The proverbial cork sniff by the server is not ostentation. It can detect TCA and some other taints. If you bought the wine then take it back to the store. A hint here is that when you buy you should always keep the receipt until you have tried the

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wine. It is a hassle but many stores will not take back product without proof they sold it. If you have the receipt and identify to the store employee the flaw you identified, in my experience you get no argument. It is money back or a bottle to replace it. The trouble is where you have laid the wine down for some time in your wine cabinet or cellar, and then open it to find it has TCA or EA. Government liquor stores have a 60 day return policy normally and many private ones less, and so bringing it back a year later is gearing up for a fight. Yet with good younger wines, you want to lay them down, sometimes for years. I just had such a situation with a 2022 Bordeaux from the 2025 LDB Bordeaux release, that I had stored for 10 months and had strong EA when I opened it. I realized one of the perils of being a wine collector: too late to return the wine. Rather than caveat emptor I suppose it was caveat collector. This brings us to the next quandary. What if the wine is technically sound, but not to your taste? If that huge Australian Cab or Syrah just turned out to be the wrong fit with your Dover Sole; or if the wine has too heavy tannins, or is too acidic for you, or is sweet when you only like dry? First, prevention is again your best bet. When you are considering ordering wine at the restaurant get help. Talk with the sommelier or server about your wine tastes, what you are planning to order for your meal, your price point range, and other details to help that professional plan the best fit. And if the wine is available by the glass, which is more common these days, ask for a sampler before committing. But if you insist on going your own way despite advice, or on not getting help, and you hate your choice of wine on that first sip, say so right away. Do not down half the bottle and then complain. Traditionally, when you backed yourself into this wine taste corner, you had to grin and bear it, as it was your own fault. However, many restaurants nowadays are more forgiving. As the beverage director of a New York restaurant group notes: “Even if a bottle is not flawed, I take it back as I want the guests to leave happy and want to come back because they will remember that they were treated well”.2 Even though the bottle is expensive, many restaurants will not make the guest pay, but will sell the wine contents by the glass, or use it for an educational tool for staff.3 Finally, whatever the reason you want to return the wine, at the restaurant or at the store, be polite. It is generally not the fault of that establishment that the wine is faulted, or your tastebuds just do not align with your purchase. You will get much more cooperation with sweetness over vinegar. And now to some wines that should give no reason for return. Some are a bit different from what might be expected for the grape varieties involved,

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but all are well made and, I hope, well described, so you know what you will be getting if you purchase them. Besides, this column has no complaints department. POGGIO SALAIA TORRE ZAMBRA PECORINO 2023 IGT Terre di Chiete, Italy #237806 $30.00 (approx.) I became a fan of Pecorino wine on our last trip to Italy a couple of years back and wish it were more prevalent in local wine stores. From an organic estate founded by the De Cerchio family in 1961, this wine is made with Pecorino grapes grown on the Salaia estate in the Abruzzo region and vinified in stainless steel. On the nose are pear and floral notes of white acacia, and the palate, with a good balance of acidity and body, is characterized by citrus and stone fruit flavors that include lemon and apricot, with a mineraldriven, slightly saline and lingering finish. It is a good patio sipper, and will pair well with hard white aged cheeses, tapenade and cured ham, or a lemon ricotta pasta topped with pistachio nuts and (of course!) pecorino romano cheese. Available from Everything Wine and Marquis Wine Cellars. It occasionally shows up in the BC Liquor Store chain. BOJADOR VINHO BRANCO 2023 VR Alentejano, Portugal #148285 $26.00 (approx.) This blend of traditional Portuguese varieties (Antâo Vaz 50 per cent, Arinto 30 per cent, Alvarinho 20 per cent) with a modest 12.5 per cent alcohol level, has a golden lemony hue. Its slightly honeyed nose displays stone fruit, mostly peach and apricot, and some lemon citrus. The full-bodied and rich palate has more of that stone fruit mixed with some tropical pineapple and a touch of minerality leading to an off-dry sustained finish. It is made for shellfish and other seafood dishes, like prawns in garlic and lemon butter or lobster roll. I purchased it from Angry Otter Wines and it is also found at Marquis Wine Cellars MONTRAS QUATRO 2024 D.O. Valle de Colchagua, Chile #275376 $18.99 This vegan wine is another blend, emanating from Chile, using a mix of French, Spanish and Italian grape varieties (Viognier thirty per cent, Verdejo thirty per cent, Vermentino thirty per cent and Albariño ten per cent). A greeny-yellow hue, its honeyed nose has aromas of grapefruit peel, tropical fruit such as mango and pineapple, flowers and herbs and the crisp but medium-full palate has flavours of peach, pear, lemon and a bit of green

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pineapple. There is a touch of sweetness on the finish. It again will fare well with shellfish and other seafood, or seared halibut in a lemon caper sauce, and other richer fish. It is a great bargain. THALIA RED PELOPONNESE (VINTAGE NOT STATED) PGI Peloponnese, Greece #466811 $15.00 (approx.) The winery name has its inspiration in Thalia, the eighth of the nine Greek muses born to Zeus and Mnemosyne, the goddess of thought, intellect and memory, and the mother of the arts. Thalia is the goddess of comedy, poetry and festivity. To the ancient Greek philosophers, she was the inspiration for their symposiums where they drank wine, listened and danced to music, debated, recited poetry and revelled the night away. This wine blend is primarily Agiorgitiko, with a twenty per cent dose of Cabernet Sauvignon. Agiorgitiko is the most widely planted red variety in Greece, mostly in the Nemea region of the Peloponnese, where it is made in styles ranging from rosé to medium bodied ageable reds. This one is remarkably light for a wine containing Cabernet Sauvignon, with only twelve per cent alcohol, but that is not a bad thing. The grapes were separately fermented with gentle skin contact for a week, then through malolactic fermentation that softened the tannins, before the final blending. It has a lively nose and palate of red berry and cherry fruit, somewhat akin to a younger Chianti, with aromas of red currant, raspberry and some herbal notes and that same bright red berry fruit on the palate, along with red cherry, some tobacco leaf and hints of vanilla. The tannins are soft. Given its lighter body it is best served slightly chilled. The winery suggests having it with cheeses, charcuterie and grilled meats. My own suggestions are those I would recommend for a light Chianti, namely a range of pasta dishes or richer risottos or roast duck. Again I found it at Angry Otter Wines and it can also be located at Marquis Wine Cellars. NARRATIVE NON-FICTION 2019 BC VQA Okanagan Valley #771196 $24.00 (approx.) From Okanagan Crush Pad in Summerland and with a refreshingly lighter alcohol of 12.5 per cent, this is a blend of Malbec, Syrah, Cabernet Sauvignon, Petit Verdot and Cabernet Franc. It was fermented and aged in concrete vessels for 12 months, with no oak. Ruby red, it has lively aromas of black currant, dark raspberry, light cherry with a hint of green tobacco and wild herbs. The flavours on the vibrant palate are of sour cherry, raspberry and red currant and it has a good lush finish. It will do well with pizza and pasta dishes, or a pork tenderloin with a cherry salsa. It is available from the

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winery, Everything Wine or the BC Wine Information Centre where it is currently on a sale price of $19.99, and is a bargain. If you cannot locate it, the 2020 is still widely available. WIRRA WIRRA FARMER’S HEART GRENACHE 2023 McLaren Vale, Australia #717940 $26.99 Rated at 95 points by James Halliday, this is a big wine for a Grenache, with 14.5 per cent alcohol. Harvested from small vineyard parcels averaging 85 years old, it is a dark purple hue. Its vibrant aromas are of brambleberry, black currant and damson plum, with distinct fresh herbal notes and some peppery spice. The flavours on the medium-bodied palate are of the same dark fruit with some spice and vanilla and a bit of graphite. It has a good, lifted finish and is a bargain that will pair well with burgers, or lamb chops or shanks, or a ragu. MAYHEM SYRAH 2025 BC VQA Okanagan Valley $27.00 (approx.) This Okanagan Falls winery Syrah took one of only two Platinum medals for Syrah at the 2026 WineAlign National Canadian Wine Awards. The grapes are from the Gill Estate Vineyard on the Golden Mile on the west slopes of the valley between Oliver and Osoyoos. It was whole berry fermented and aged for six months in French oak barriques. This is a big black and blue Syrah, full of blackberry and blueberry and black plum with black pepper notes on the nose, and with a palate is dense and dark, loaded with black cherry, black currant and more blueberry, all framed with oak and a touch of cocoa powder and vanilla on its lush long finish. The winery suggests having it with grilled lamb with rosemary, roast beef or mushroombased dishes. A bargain at the price, buy before it is gone. It is available online from the winery and from the BC Wine Information Centre. ENDNOTES 1. More accurately he wrote in West-Eastern Diwan, Book 9, The Book of the Cupbearer: “It comes to this, that it is a sin to drink wine. If thou, then committest sin, commit it at least for the best wine, for otherwise wouldst thou on one part commit sin, and on another drink bad wine. By God! that would be the most sorrowful among sorrowful things.” 2. Mike Desimone & Jeff Jenssen, “Can I Send This Wine Back? Yes, Here’s How.” Robb Report (11

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August 2024), online: <robbreport.com/food-drink /wine/send-back-wine-restaurant-1235801462/>. 3. Zach Geballe, “How, When, and Why It’s Okay to Send Back a Bottle of Wine”, VinePair (4 September 2019), online: <vinepair.com/articles/how-whysend-back-wine-restaurant/>.

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NEWS FROM

BC LAW INSTITUTE By Ed Wilson*

REMEMBERING KEVIN ZAKRESKI The legal profession often celebrates those whose names appear in reported decisions, whose arguments shape the law in courtrooms, or whose legislative initiatives garner public attention. Less visible, but no less important, are those whose careers are devoted to the patient and often unseen work of improving the law itself. For more than 22 years, Kevin Zakreski was one of those people. Kevin, who passed away recently, spent the vast majority of his legal career as a staff lawyer with the British Columbia Law Institute (“BCLI”). During that time, he became one of British Columbia’s most accomplished law reform lawyers. Through his research, writing, committee work and mentorship, he contributed to projects that impact everyday lives of British Columbians in different ways. His work helped shape legislation, modernize legal frameworks and strengthen the institutions that support public confidence in the law. Just as importantly, he helped shape the organization in which he worked, providing steady guidance, institutional memory and mentorship to colleagues and students. Kevin’s career at BCLI was remarkable not only for its length, but also for its breadth. Among the many areas to which Kevin contributed, three in particular illustrate the scope and significance of his work: strata property law, society law reform and family law. One of Kevin’s most substantial contributions was his work on strata property law. As project manager for BCLI’s Strata Property Law Project, he led an ambitious and multifaceted examination of the legal framework governing stratas. Under his leadership, the project generated reports dealing * Ed Wilson is the chair of BCLI.

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with governance, insurance, common property, land titles, fundamental changes and the termination of strata corporations. These issues may sound highly technical, but given that so many homes are in stratas, they affect many British Columbians. Questions concerning governance, property rights, insurance obligations and collective decision-making arise constantly within strata communities. Through these projects, Kevin helped develop thoughtful and practical recommendations in an area of law that touches people where they live. His work on strata law also reflected a broader theme that ran throughout much of his career: a deep interest in the legal frameworks that enable people to work together through collective institutions. This same interest is evident in his work on the Society Act Reform Project. This project addressed the legal structures governing non-profit organizations, charities, cultural associations, service organizations and other community groups throughout British Columbia. Healthy civil society depends on legal frameworks that allow organizations to govern themselves effectively, remain accountable to their members, and adapt to changing circumstances. Kevin understood that law reform was not solely about resolving disputes or correcting deficiencies. It is also about creating legal structures that help communities flourish. His work in this area contributed to modernizing the legal framework within which many of British Columbia’s non-profit organizations, including ours, continue to operate. And as anyone who worked with Kevin on board governance or a BCLI project committee would know, he revelled in good governance and process. Another significant strand of Kevin’s career involved family law and child protection. He played leading roles in large-scale law reform projects, including modernization of the Child, Family and Community Service Act and of the parentage provisions of part 3 of the Family Law Act. Kevin worked on several iterations of BCLI’s Questions and Answers about Pension Division, a publication widely relied upon by the family law bar. These projects reveal a lawyer who understood that law reform ultimately affects people, particularly those navigating difficult life circumstances. Family law and child protection law engage some of the most sensitive and consequential issues that legal systems address. Through these projects, Kevin helped examine ways in which the law could better support children, families and vulnerable individuals. His contribution reflects a commitment not merely to legal coherence, but also to fairness, dignity and practical justice. The breadth of Kevin’s work extended well beyond these areas. He contributed to projects on unfair contracts relief, predatory lending, litigation

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financing, public hearings, sworn statements, powers of attorney, trustees, post-accident remedial measures and real property law reform. Collectively, these projects reveal an extraordinary range of legal interests and expertise—few lawyers spend their careers addressing such a diverse array of legal issues. Fewer still are able to do so with the depth and quality that characterized Kevin’s work. Kevin brought a rare combination of intellectual rigour, exceptional writing and genuine appreciation for good law. He had a gift for mastering complex legal issues through meticulous research and then distilling that research into reports that were clear and accessible. Law reform requires more than identifying legal problems. It requires understanding competing interests, listening to affected communities, evaluating policy options, and crafting recommendations that are both principled and practical. Kevin excelled at every stage of that process. What distinguished Kevin most, however, at least from BCLI’s perspective, was the role he played within BCLI itself. Law reform organizations depend heavily on continuity. Reports are published, committees complete their work, governments change and public priorities evolve. Institutional memory can be difficult to preserve. Long-serving lawyers play a vital role in maintaining organizational knowledge, standards and values. Kevin was a gracious and trusted source of advice and guidance for colleagues across the organization. His judgment was widely respected. When difficult questions arose, whether concerning a legal issue, a project or the operation of BCLI itself, colleagues frequently turned to Kevin for perspective. His contribution to BCLI’s internal governance was particularly important. He understood not only the details of individual projects but also the broader mission of the organization. In many respects, Kevin served as one of the institutional anchors of BCLI. His commitment to rigorous research, careful consultation and high-quality writing helped sustain the culture of excellence for which BCLI has become known. Kevin’s role as a mentor was equally significant. Legal education does not end when lawyers leave law school. Much of what lawyers learn comes from experienced colleagues who model professional judgment, intellectual curiosity and ethical practice. Over the course of his career, he supervised and mentored a number of articling and summer students. More importantly, he served as an informal mentor to many colleagues, particularly those who were new to law reform. He was generous with his time and willing to share his knowledge. Junior lawyers sought his advice not only because of his expertise, but because he approached mentorship with patience, kindness and genuine interest in helping others succeed.

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The reports that Kevin authored and contributed to will remain part of the law reform record. The recommendations he helped develop will continue to influence legal thinking. And those who knew Kevin will remember more than his accomplishments. They will remember a colleague who combined intellectual excellence with generosity. A lawyer whose research was meticulous and whose writing was elegant. A mentor who gave freely of his time and expertise. A steady presence whose judgment could be trusted. A person who helped make his organization stronger simply by being part of it. In a profession that often emphasizes individual achievement, Kevin’s career stands as a reminder of the importance of collective endeavour and public service. He devoted his talents to quietly improving the law and supporting those around him. British Columbia’s legal community is better because of his work.

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NEWS FROM

CLEBC SOCIETY By Adam Simpkins*

NAVIGATING THE SHIFT: ESSENTIAL TOOLS AND INSIGHTS FOR BRITISH COLUMBIA’S CHANGING WEALTH LANDSCAPE The legal profession is currently navigating one of the most significant intergenerational transfers of wealth in history. For practitioners in British Columbia, keeping pace with evolving family structures, complex asset portfolios and shifting tax regimes is no longer just an asset; it is a core practice requirement. To support the local bar, the Continuing Legal Education Society of BC (“CLEBC”) has recently updated two of its core resource manuals and scheduled two intensive updates this October to keep your skills sharp and your files moving forward confidently. British Columbia Probate & Estate Administration Practice Manual Estate administration carries a high potential for error, making step-bystep procedural certainty invaluable. The newly released 2026 update of this foundational manual, available in print or as an online subscription, brings all chapters, forms, precedents and checklists fully current to March 1, 2026. Designed for both estate administrators and litigators, it guides you from the initial client meeting through to post-grant distributions, addressing complex tax implications and potential conflicts of laws along the way. The 2026 edition introduces critical practice updates, including expanded commentary on registry-specific filing quirks across British Columbia and fresh wording for core forms and precedents. Substantively, the update provides crucial cautionary guidance on advising personal representatives about a deceased’s spousal status, alongside an expanded discussion on when to file a notice of dispute if co-executors reach an impasse.

* Adam Simpkins is the marketing manager at CLEBC.

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For files involving ambiguous wishes, the manual also offers new analysis on the specific thresholds required to establish a will-maker’s testamentary intention. British Columbia Estate Planning & Wealth Preservation Complementing procedural administration, proactive wealth preservation requires sophisticated, tax-focused planning strategies. This manual, also available in print or as an online subscription, serves as a comprehensive guide to structuring effective estate plans for intricate client portfolios. Specifically engineered to work alongside Wills and Personal Planning Precedents: An Annotated Guide, it provides the detailed commentary and annotated forms necessary to construct robust trusts and specialized wealth preservation vehicles. Brought current to March 15, 2026, the latest update incorporates fresh insights and commentary from recent major tax conferences and roundtables. A key highlight of this version is the up-to-date analysis of the current tax regime regarding reportable and notifiable transactions, which is a critical area for any practitioner structuring modern tax, trust and estate plans. Complete with revised forms and precedents, this practical guide ensures you can confidently determine the most sensible, protective approach for your clients’ multi-generational assets. Estate Planning Update (Course) On Wednesday, October 14, 2026, CLEBC will host Estate Planning Update, available both in-person and via live webinar. Chaired by Genevieve N. Taylor of Legacy Tax + Trust Lawyers, this course is tailored for wills and estates lawyers, as well as accountants, trust officers and wealth management professionals. The agenda focuses heavily on the practical tools and techniques needed to secure a family’s long-term financial objectives. A distinguished faculty will explore timely developments in the law, providing actionable strategies to ensure smooth estate distribution. Attending this course offers a seamless way to fulfill annual professional development requirements, providing six Law Society of British Columbia CPD hours, which includes one hour dedicated to professional responsibility, ethics, client care or practice management. Estate Litigation Update (Course) The following day, Thursday, October 15, 2026, the focus shifts to contentious matters with Estate Litigation Update, also running in person and online. Chaired by Helen H. Low, K.C., of Fasken LLP, this program is essential for litigators and planning solicitors who want to anticipate potential friction points before they result in a dispute.

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Disputes can surface at any stage of the estate timeline. This course addresses frequent, complex issues that emerge when early asset planning was either absent or insufficient, or where a valid will faces a formal legal challenge. Faculty members will merge academic analysis with decades of courtroom and mediation experience to refine your skills in negotiation, arbitration and formal litigation. This course also qualifies for six Law Society of British Columbia CPD hours, including at least one hour of ethics and practice management content. Whether you are looking to reinforce your library shelves with current precedents or join your peers for rigorous deep-dives this October, these resources are designed to reduce practice risk and elevate your counsel. To purchase the manuals or to register for the upcoming updates, visit our website at <www.cle.bc.ca>.

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CONCERNED ABOUT A COLLEAGUE? We offer 24/7 confidential support and education for lawyers dealing with alcohol and drug dependency, stress, anxiety, and depression. FOR A HEALTHY LEGAL COMMUNITY

1-888-685-2171 • 604-685-2171 • info@lapbc.com

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“Lennard Island” by Felice Mazzoni, Oil on Canvas 48'' x 72'', 2026 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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LAPBC NOTES By Anonymous

LAW IS HARD, BUT WE MAKE IT HARDER ON OURSELVES Law is inherently demanding—fast-moving, high-stakes, and often emotionally charged—but I’ve come to notice how much of its difficulty is compounded not just by the work itself, but by the ways we respond to it. Pressure turns into perfectionism, urgency becomes the default, and professional identity blurs into constant overextension. As independent, analytical professionals, we can also become resistant to help—whether that’s support from colleagues, feedback from others, or even permission to slow down and do things differently—often under the belief that coping alone is part of being competent or reliable. In trying to meet the demands of the profession, it can become easy to adopt habits and expectations that make the work feel heavier than it needs to be. I spent the first half of my legal career at a larger firm, and despite my various efforts to change its culture and the way it was governed, I was unsuccessful. I had grandiose dreams of changing the culture for associates, changing the type of work we did, and changing how we rewarded the work we did. While I feel I had some success in changing the culture for our associates (at least in my neck of the woods), ultimately I could not change the focus of work we did or the way we rewarded the significant efforts that went into the growth and maintenance of the firm. This realization hit me at a partners’ meeting where I looked around the room and realized I was standing on an island and nobody shared (or had the courage to speak about) my vision for the firm. This failure made me feel incredibly depressed and alienated at my firm. My relationships with my family, co-workers and clients suffered. My health suffered. My soul suffered. The only succor I felt during this time was the volunteer work I was doing which allowed me to focus on the needs of others rather than my own needs. While in many ways being of service during

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periods of chaos is a distraction, it really reinforced in me the reality that I truly enjoy helping others, even when I was the one who needed help. I’m sure we’ve all encountered the bit of wisdom that “if you don’t like a situation, you can change it, accept it, or leave it”. I had spent over a decade trying to change and tolerate my circumstances but didn’t have the courage to leave it. I felt trapped by my financial needs, the opinion of my partners and peers outside the firm, and my own internal expectations for being “tough”. I remember actively trying to avoid running into certain people in elevators or corridors and going to cartoonish efforts to ensure our paths did not cross. When COVID-19 hit and work from home became common, I retreated from the office and sought safety and comfort from my home workspace. Looking back, being afraid of going into the office was the warning sign that should have immediately forced me to take action. But it would still be a number of years until I had the strength and courage to change my situation. For some reason, lawyers find change scary (most people do). It wasn’t until I firmly committed to moving on that my depression lifted and I was able to take control of my circumstances. Despite amazing advice from my network of friends and family, I wasn’t in the right mental space to change my circumstance when I should have. It wasn’t until I had some sessions with Michael Kahn at LAPBC that I was able to get into the right head space to effect the change I needed. Maybe it’s a male thing or a lawyer thing or a type A thing but asking for help on mental issues was a foreign concept for me. I had never spoken with a therapist and therefore was unsure what the process involved. Surprisingly the advice was eminently practical: what is making you feel bad and what actions can you take to feel better? Once I started journalling what was bothering me and tracking what made me feel better, I was able to come up with a “cheat sheet” of things to do when I was feeling down. Often the first cure on the list would not work, but I would diligently go down each list item until I felt relief. This was incredibly empowering. With my toolkit in hand, I was finally ready to leave the firm I had started my career with and invested so much blood, sweat and tears in. Ordinarily the uncertainty of starting something new would have paralyzed me with fear of the downsides but for some reason it excited me. For the first time in a very long time, I felt truly in control of my future and, good or bad, at least I would be charting the course. I decided on starting a new small firm with like-minded individuals and as any small business operator can tell you, the road is not an easy one. While the stress of running my own firm is very high it is a completely dif-

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ferent feeling to the feeling I had at my old firm and the tools I have to deal with the stress are working well. I still reach out to LAPBC for help when I am feeling overwhelmed, but I am excited for the future and grateful that I was able to make the change I needed. If you are feeling similarly to the way I felt (i.e., trapped), remember that you can always change your circumstances. You just need the right tools and to be willing to ask for help when you need it. Don’t make the practice of law harder than it needs to be.

The Lawyers Assistance Program of British Columbia is an independent organization of members of the legal community (lawyers, judges, families and support staff). We provide peer support and referral services to help people deal with personal problems, including alcohol and drug dependence, stress, anxiety and depression. We are volunteers and staff committed to providing confidential, compassionate and knowledgeable outreach, support and education. We seek to foster collegiality among our peers and to promote health and well-being in our community. You can reach LAPBC by telephone at 604-685-2171, toll-free at 1-888-685-2171 or via the LAP website:<www.lapbc.com>.

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Alyshia Jiwan COMMERCIAL REAL ESTATE

Kornfeld LLP is delighted to welcome Alyshia Jiwan to the partnership. Alyshia is a highly experienced solicitor specializing in commercial real estate and commercial leasing. Alyshia advises clients on a wide range of complex real property transactions, including acquisitions, financings, dispositions, and refinancings involving apartment buildings, office buildings, shopping centres, light industrial properties, and hotels. Her experience across all stages of commercial real estate transactions enables her to provide practical, strategic advice tailored to her clients' business objectives.

kornfeldllp.com

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ANNOUNCING THE 2027 ADVOCATE SHORT FICTION COMPETITION ELIGIBLE CONTRIBUTORS Any person who is now, or has been, a member of the Law Society of British Columbia (including lawyers, judges and masters) or who is an articled student. Contest judges and the “staff” of the Advocate are ineligible to contribute. ELIGIBLE FICTION A fictional work, written in English, to a strict maximum of 2,500 words that deals, if only incidentally, with legal subject matter. The contributor must be the author of the work, which must be entirely original and must not ever have been published or submitted for publication or consideration in a writing competition elsewhere. DEADLINE FOR SUBMISSIONS The close of business on Friday, September 3, 2027. Submissions will not be returned, so authors should maintain copies of their work. FORMAT FOR SUBMISSIONS Two double-spaced, typed manuscript copies, each with a separate cover sheet bearing the work’s title together with its author’s name, address, daytime telephone number and a word count. The author’s name should not appear anywhere on or in the manuscript itself, as all submissions will be judged anonymously, strictly on literary merit. ADDRESS FOR SUBMISSIONS Advocate Short Fiction Competition c/o D. Michael Bain, K.C., Editor The Advocate #510 – 815 West Hastings Street Vancouver, B.C. V6C 1B4 JUDGES David Roberts, K.C., Anne Giardini, K.C., and Peter Roberts, K.C. The decisions of the judges as to the literary merit of the contributions shall be final.

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PRIZES First prize:

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$400 gift certificate at a local book store and publication in the Advocate

Second prize: $250 gift certificate at a local book store and possible publication in the Advocate Third prize:

$100 gift certificate at a local restaurant and possible publication in the Advocate

Winning entries will be selected by, at the latest, February 11, 2028. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate. All submissions, including winning entries, will also be considered for possible publication by the Vancouver Bar Association or an independent publisher in a selection of “legal fictions” to be released at a later date. TRANSFER OF RIGHTS In consideration of having their fiction reviewed for: (a)

possible selection as winning entries;

(b)

possible publication in the Advocate; and

(c)

possible inclusion in a selection of submissions to be published in book form;

contributors agree upon submitting their work that the Vancouver Bar Association (publisher of the Advocate), or its licensee, shall have the sole and exclusive right, in Canada and for a period of 15 years, to print, publish and sell their work in such form or forms as the Vancouver Bar Association may in its discretion consider appropriate, such right to revert automatically to all contributors whose works of fiction are not selected as winning entries or for inclusion in the selection of submissions to be published. Contributors further undertake, if required by the Vancouver Bar Association, to execute both a written assignment in order to confirm the transfer of rights described above to the Vancouver Bar Association and a waiver of the moral rights attached to their work, should their work be selected for publication in the Advocate as a winning entry or for inclusion in a selection of submissions to be published in book form. All proceeds or royalties, if any, from the sales of such a selection will be paid to the benefit of the Vancouver Bar Association, a non-profit organization.

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PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS By Heidi Wudrick*

MEET THE ALLARD LAW GRADS BOUND FOR CANADA’S HIGHEST COURT Two graduates of the Peter A. Allard School of Law will be heading to Ottawa to clerk at the Supreme Court of Canada—one of the most competitive and sought-after positions for graduating law students. Tyleigh Massey-Leclerc and Dylan Nouri, who graduated this past spring, took every opportunity to deepen their understanding of the law during their time at Allard Law. Both students served as research assistants and helped lead their competitive moot team to victory in 2025 at the Gale Moot. “Dylan and Tyleigh were highly engaged with law both inside and beyond the classroom,” says Professor Isabel Grant. “I have no doubt that they will make important contributions to the work of the courts as clerks.” Before beginning their appointments in 2027, Massey-Leclerc and Nouri will first complete a year of clerking at the Supreme Court of British Columbia. A Rare Opportunity to Take “A Peek Behind the Curtain” Massey-Leclerc was “smiling ear to ear” when she first got the call from Justice Nicholas Kasirer offering her a Supreme Court of Canada clerkship. “Thankfully, he was doing most of the talking, because I had just completely melted,” she says. Through her clerkships, she hopes to gain a better understanding of what judges are looking for in written and oral advocacy. “That’s a skill that can take a lot of time to build,” she says. Since high school, Massey-Leclerc has been set on working in criminal defence. “When I got to law school, I thought I’d keep an open mind. Maybe I’d want to do wills and estates?” * Heidi Wudrick is the communications manager at the Peter A. Allard School of Law.

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Once she started taking criminal law classes at Allard Law, that confirmed her plan. “We need people working in the justice system who are cognizant of what brings someone before the court,” Massey-Leclerc says. “And it’s important that we have defence counsel who advocate not only for their client’s rights, but also for everyone’s rights.” Once she begins her clerkship at the Supreme Court of Canada in 2027, Massey-Leclerc is particularly excited for the chance to “take a peek behind the curtain at our court of last resort” and to practise her French legalese. “I think I’ll be continuously challenged, and there’ll be something new to learn every day,” she adds. “I still haven’t quite wrapped my head around the whole thing, and I probably won’t until I’m walking through the doors on my first day.” A Chance to Support Judicial Decision-Making Nouri says it was “absolutely surreal” getting a call from Supreme Court Justice Mahmud Jamal offering him a clerkship. “I don’t think my heart had ever been beating faster.” His achievements this year include receiving a Wesbrook Scholarship— the most prestigious designation offered to UBC students with outstanding academic performance—and the Law Society of British Columbia’s 2026 gold medal, awarded to the graduating student with the highest cumulative grade point average at each B.C. law school. Nouri credits his genuine interest in the law for his achievements and looks forward to putting his skills to work at the Supreme Court. “I love legal research,” he says. “It’s surprisingly really enjoyable going down rabbit holes and finding the perfect case that says exactly what you wanted to say and then fitting it into an argument.” Since starting law school, Nouri has closely followed the Supreme Court’s decisions, which makes it particularly exciting to now have the opportunity to support judicial decision-making. “I think it’s fascinating work that they do, because by the time cases get up to that level, they have a national role to play,” Nouri adds. “This is an extremely unique opportunity to be on the other side of the bench and to see how a judge thinks. They’re building the law, and that’s a massive responsibility.”

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UVIC LAW FACULTY NEWS By David Murphy, Josh Regnier and Brian Thom*

LIVING IN RELATION, SELFLESSLY: TL’UL’THUT ROBERT MORALES Tl’ul’thut Robert Morales stands between two 20-foot Douglas fir columns at the front of the Large Gathering Space within UVic Law’s new Indigenous Law wing. It is a room grounded in Coast Salish Big House architecture and legal traditions, and a fitting space to celebrate Robert Morales, the deeply respected Cowichan treaty negotiator. His daughter Dr. Sarah Morales (Su-taxwiye)—one of Canada’s leading scholars in Indigenous law—drapes him in a thick, white swu’qwuth blanket woven by Cowichan artist Thulamiyé Amber Tommy. Performing before him, the Quw’utsun Tzinquaw Dance Group uplift Morales with Hul’q’umi’num’ warrior and honouring songs—four dancers spin and step in unison as a drumbeat echoes and a deep, powerful voice shares the gift of good feelings. A hundred witnesses absorb the ceremony paying tribute to the man who has forever reshaped the legal landscape of Canada. The June 2026 Honouring Tl’ul’thut: Treaty-Making and the Return of Territorial Authority Symposium celebrated Morales ahead of the ceremony awarding him an honorary doctor of laws (LL.D.) from UVic. The symposium also served as a striking measurement of Indigenous legal resurgence in Canada. Almost 150 years ago many Coast Salish dances were banned by amendments to the Indian Act. In the decades that followed, settler governments imposed laws, stole land and separated children to repress Indigenous culture, seemingly for good. Now, Coast Salish songs reverberate in legal institutions like UVic Law, where Indigenous law is proudly taught. Morales’ body of work is defined by challenging the colonial narrative. Over an uncompromising 40-year career he has defended Indigenous clients * David Murphy, Communications, is with UVic Law. Josh Regnier is a graduate of UVic’s joint J.D./J.I.D. program and is an associate with MLT Aikins LLP. Brian Thom is Professor, Chair and Provost’s Engaged Scholar, Anthropology, at UVic.

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in the highest courts, led negotiations over land jurisdiction for Cowichan, Halalt, Penelakut, Lyackson and Ts’uubaa-asatx Nations, and has driven the historic and unprecedented reclamation of authority over state child and family services by Cowichan Tribes, ensuring Cowichan smun’eem (children) remain connected to their families, culture, language and community. Sarah continues in her father’s legacy of advancing Indigenous rights, recognition and self-determination as UVic Law’s first Associate Dean Indigenous. At the June symposium she spoke about her dad’s commitment to acting on a mandate set by Elders and community leaders. “Robert helped advance the vision of ‘getting to 100 percent’—the idea that Hul’qumi’num’ peoples must maintain a meaningful relationship with, and exercise authority and responsibility throughout, one hundred percent of their territory. Not just the small portions that may become treaty settlement lands,” she said. Lyackson Hereditary Chief Shana Thomas sees Morales’ power in relationship-building. Speaking at the symposium, Chief Thomas described Morales’ groundbreaking process for forging the 2008 Unity Protocol. By bringing together 67 B.C. First Nations facing similar obstacles in treaty negotiations with Canada and British Columbia, Morales helped facilitate consensus on shared priorities. The Common Table broke deadlocks on six crucial issues that had long impeded progress with Canada and British Columbia—leading to revised federal and provincial land claims policies. “He did not accept imbalance as normal. At a time when First Nations were expected to negotiate in isolation—held to strict confidentiality—while Crown negotiators shared freely with one another, Robert named that inequity. And he changed it,” said Chief Thomas. “That shift—while it may seem obvious now—was transformative. It created space for Nations to speak with each other, support each other, and stand together. Because Robert understood something fundamental: recognition does not happen in isolation. Recognition happens in relationship,” she said. Morales encourages the importance and value of relationships to this day. Speaking to hundreds of graduating students at UVic’s June 9 convocation ceremony, he reflected on how relationships shaped his path from high school dropout to law school at UVic, and eventually to receiving an honorary doctor of laws. Raised by his mother, a survivor of residential school, after the death of his father—a migrant farm worker from Mexico—Morales grew up in a trailer with no running water. After leaving school in Grade 8 and later taking a job as a department store stock boy, his future seemed hazy. People around Morales encouraged him to pursue his education.

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“Perhaps somewhere there is a 16-year-old Indigenous youth wondering what they will do in their life, whether their voice will matter, whether they can make a difference,” said Morales in his convocation speech. “And through the examples that each of you will set, you may help them discover the answers, you may inspire them to accomplish their own great deeds.” “Use your gifts, the great deeds of your life to build stronger communities, more just institutions, a better world for those who come after us. And perhaps one day someone will tell a story about how you inspired them to believe that anything is possible,” he said. Morales’ remarkable journey is a story of successive ceiling-breaking movements, both personally and for the rights and self-determination of Indigenous peoples in Canada. Morales was one of the early Indigenous graduates from UVic Law in 1986. After graduating, he returned home, becoming the first Cowichan lawyer in the Duncan area. For 13 years he defended Indigenous clients impacted by legacies of residential school, poverty and colonialism. But in 1993 Morales wanted more influence to negotiate on behalf of his clients, and the interests of his community. He enrolled in negotiation training at Harvard Law School and studied under Roger Fisher, a founding father of treaty negotiation. In 2000, Morales was hired as the Chief Negotiator for the Hul’qumi’num Treaty Group (“HTG”). He immediately set out to gain deep knowledge across a range of issues raised at the Treaty table, from shellfish harvesting and salmon management to fiscal relations, intangible property rights, and the constitutional status of lands. To guide him, Morales surrounded himself with working groups of experienced Hul’qumi’num’ community members and Elders, meeting with them regularly, and sought expert advice from academics, scientists and legal counsel. In the Hul’q’umi’num’ context, Treaty negotiations were particularly challenging because nearly all of Island Hul’q’umi’num’ lands are privately held as a result of the 1884 E&N Railway Grant. The E&N Railway Grant— what Morales refers to as the “Great Land Grab”—handed nearly two million acres of land to Robert Dunsmuir and American investors in exchange for 70 miles of railroad track. There was no negotiation with the Hul’q’umi’num’ Nations, no compensation and no disclosure. Hul’q’umi’num’ territories, almost overnight, were controlled by a railway company. Over the decades that followed, those lands passed from one corporation to the next—forestry companies, real estate developers and eventually global investment firms and large pension funds. The Hul’q’umi’num’ people were denied access to their own territory, locked out from lands they had occupied since time immemorial.

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Private land ownership is the central barrier to progress in Treaty negotiations. The province refused to discuss fee simple lands—nearly 90 percent of Hul’q’umi’num’ territory—regardless of whether Morales sought co-management, compensation or full return of the land. Through years of intense negotiations, Morales realized that the social, political and legal changes he envisioned were unlikely to be achieved at the table under those circumstances; it would require a much longer struggle, perhaps spanning generations. Morales was undeterred and sought creative solutions, including leveraging international law. He led an HTG petition to the Inter-American Commission on Human Rights, which found no reasonable expectation of success in land claims negotiations in Canada for areas predominantly covered by private lands like the Island Hul’q’umi’num’. In a tragedy of justice, the Commission, buried in legal process by the Canadian state, has yet to make a finding on the merits of the case, 15 years after it was heard. Domestically, Morales sought to influence the law beyond Hul’qumi’num’ territory. He represented HTG as an intervenor in Tsilhqot’in Nation at the Supreme Court of Canada—the first case in Canada that included a declaration of Aboriginal title. He raised the profile of the Doctrine of Discovery as a deeply problematic tenet on which the Crown justifies its title claims. His hope was that standards emerging in the international community for recognizing Indigenous rights and offering restitution would be applied in government’s approach to treaty settlements in Hul’qumi’num’ territory. Through all his work, Morales was guided by the legal orders of his own Island Hul’q’umi’num’ and Coast Salish communities. Informed by a deep knowledge of the oral histories and the values and teachings associated with important places, Morales makes strong connections between First Ancestor stories and what those stories say about the connections, responsibilities and identities of Indigenous communities. As Chief Negotiator, Morales has engaged and educated the public. He has spoken at schools, environmental groups and church groups; organized political debates; engaged with the media; and developed public education materials on the dispossession and restitution of Hul’qumi’num’ lands. These resources are distributed for free to people and libraries across Canada. Through these efforts, Morales has sought to build political, bureaucratic and societal will for meaningful change—in the hope that negotiators would eventually have an expanded mandate to bring treaties to conclusion. It was through all this work that Morales transcended his position as a negotiator of a local First Nations organization and became a key figure in

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Canada’s Indigenous intellectual, legal and advocacy network, pushing on multiple scales—from grassroots to international—on a fair resolution to British Columbia’s “land question”. More recently, Morales has led what may be the most groundbreaking chapter of his career. In 2019, Cowichan Tribes appointed him to lead the Child and Family Wellness Project—a complex, multi-layered initiative to reclaim jurisdiction over child and family services. Working alongside his daughter Sarah, Morales co-led the development and drafting of Snuw’uy’ulhtst tu Quw’utsun Mustimuhw u’ tu Shhw’a’luqwa’a’ i’ Smun’eem (Laws of the Cowichan People for Families and Children)—the first Indigenous legislation on child and family services in British Columbia. The process involved extensive consultation with the community and communication with chief and council, concluding with community ratification. Morales led the negotiations with British Columbia and Canada at a coordination table regarding Cowichan Tribes’ jurisdiction and service delivery under the Act Respecting First Nations, Inuit and Métis Children, Youth and Families. The Coordination Agreement was signed and ratified in June 2024. He then led the drafting process for new Provincial Court Rules, providing the Provincial Court in Duncan with procedures to follow where matters involving Cowichan smun’eem (children) are brought before the court under the new Cowichan law. The rules were accepted and brought into force in July 2024. The work of Robert Morales has uplifted the teachings of Hul’qumin’num’ peoples to effect practical and lasting change for Indigenous peoples throughout British Columbia and Canada. Through his commitment to true reconciliation across and among societies, Morales has set a benchmark that has already inspired a generation to carry forward the resurgence and revitalization of Indigenous law.

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“Foreplay to the Rain” by Mare-France Boisvert, Acrylic and Liquid Silver on Canvas 40'' x 40'', 2026 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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TRU LAW FACULTY NEWS By Ryan Gauthier*

TRU Law has recently had the pleasure of celebrating its thirteenth graduating class! On June 12, 2026, 122 students convocated from TRU Law and are joining the legal profession. TRU Law celebrates all our students. Yet, we would like to particularly acknowledge the Law Society Gold Medal recipient, and the Class Valedictorian, below. We would also like to acknowledge the students who graduated with distinction: Jacob D’Andrea, Noah Huston, Mikayla Weissler and Chris Wiebe. We would also like to acknowledge the late Honourable Hope Hyslop, who was awarded a posthumous Doctor of Laws, honoris causa from TRU. Hope was well-known to many members of the legal community, with strong Kamloops ties. In addition to her years of practice in Kamloops, Hope was a founder of Legal Aid in Kamloops, and recognized as Queen’s Counsel. She was appointed to the Provincial Court in 2003, and to the Supreme Court in 2009. Following her retirement from the bench in 2017, she worked with the TRU Law Community Legal Clinic until 2023. We are deeply pleased that Hope was recognized by TRU with this honorary doctorate. TRU Law Gold Medalist Chris Wiebe was awarded the Law Society of British Columbia Gold Medal for 2026. Chris came to TRU Law from Abbotsford, studying criminology at the University of the Fraser Valley. At TRU Law, Chris was a semi-finalist in the 2024 Dean’s Cup Moot by Trial Lawyers Association of BC, served as a peer tutor in his second and third years, and was an executive with the TRU Christian Legal Fellowship. He was also the researcher for TRU Law’s 2025 * Ryan Gauthier is a professor at the TRU Faculty of Law. His summer plans included filling out his Vancouver Island Regional Library stamp rally card. He is not in it for the prizes—just for the love of the game.

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Wilson Moot team, which earned top factum honours, and the recipient of numerous course prizes. After graduation, Chris will complete his articles with Linley Welwood LLP, before clerking at the Federal Court in 2027/28. TRU Law Valedictorian Deonte McCarthy’s time at TRU Law was defined by leadership, service and academic excellence. As a leader of the TRU Faculty of Law’s HoopLaw team, he helped secure back-to-back top fundraising awards in British Columbia, reflecting his commitment to community engagement. Deonte was a member of TRU Law’s Kawaskimhon National Aboriginal Moot team, a teaching assistant for constitutional law, a research assistant for Dean Millard, and co-president of the Black Law Students Association. Following graduation, Deonte will complete his articles at Lawson Lundell LLP’s Kelowna office. Hope Hyslop Gift Supports TRU Law We would like to acknowledge a gift from Hope Hyslop. Her legacy gift will establish the Hope Hyslop Community Legal Clinic Fund, which will strengthen and expand the TRU Law Community Legal Clinic. Her gift will also establish the Hope Hyslop Legacy Law Retention Awards. These awards will provide financial support to third-year students who intend to practise family law in the interior of British Columbia. Class of 2016 Reunion Just after the Class of 2026 celebrated their convocation, the Class of 2016 had their 10-year reunion in Kamloops on June 12 and 13. Thank you to all who attended to celebrate the third graduating class of TRU Law. We are looking forward to planning the next reunion with the Class of 2017! Doctoral Dissertation Defence of Jack Nelson On June 17, 2026, Jack Wright Nelson successfully defended his doctoral thesis at McGill University’s Faculty of Law. Titled From Local Labs to Global Governance: Science, International Law, and Global Public Goods, Jack’s thesis focuses on laws governing science. He examines three treaties—the Outer Space Treaty, the TRIPS Agreement and the Canada–China science and technology agreement—in arguing that the law governing science impedes rather than enables it as a global public good. Jack also proposes reforms achievable within existing legal frameworks. Congratulations to Dr. Nelson! TRU Law Hosts Conference on the Canadian Law of Obligations TRU Law hosted the fifth Conference on the Canadian Law of Obligations. Keynote addresses were delivered by the Honourable Suzanne Côté, puisne justice of the Supreme Court of Canada, and the Honourable Ronald A. Skol-

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rood, Chief Justice of the Supreme Court of British Columbia. Thirty scholars presented papers on developments in private law, including the new tort of intimate partner violence in Ahluwalia v. Ahluwalia and the implications of Collins Family Trust. Proceedings will appear in a forthcoming Supreme Court Law Review special edition. Thanks to Dr. Krish Maharaj, the convener, for his work, and thanks to the Law Commission of Canada for its support. TRU Law Faculty Writing Retreat From May 19 to 21, the TRU law faculty engaged in a writing retreat in Revelstoke. Seven faculty members spent three days holed up in the Revelstoke Community Centre, working on various writing projects. The faculty members also made some time to enjoy the nearby national parks, the local food and a respectable third-place showing at the pub trivia night at the local Legion. We would like to thank Aimee Schalles for arranging a lunch with members of the Revelstoke bar. TRU Law is working to understand how we can better work with the interior of British Columbia, and we appreciated getting to know the local bar a bit better.

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“Silence Meets Majesty” by Jane Bronsch, Acrylic on Canvas 32'' x 60'', 2026 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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THE ATTORNEY GENERAL’S PAGE By the Honourable Niki Sharma, K.C.*

ADVANCING A MORE ACCESSIBLE AND RESPONSIVE JUSTICE SYSTEM In recent months, our government has continued to take steps to strengthen British Columbia’s justice system by improving how people access services, enhancing supports for survivors of family violence, and modernizing court processes to better reflect the realities of today’s legal system. These efforts share a common goal of ensuring that the justice system is not only fair but also responsive, accessible and grounded in the experiences of the people it serves. In this article, I outline several recent developments and how they contribute to this broader work. Expanding Virtual Access to the Courts Making it easier for people to participate in the justice system remains a priority. As part of this work, the Province continues to provide operational support to the judiciary to expand the use of video conferencing in certain Supreme Court civil and family proceedings, enabling more routine appearances to take place remotely. This approach reflects an evolution in how court services are delivered. Remote appearances can reduce the need for travel, improve scheduling flexibility, and allow both counsel and litigants to engage more efficiently with the system. For those in rural and remote communities, these changes can make a meaningful difference in their ability to participate in proceedings without unnecessary barriers. At the same time, these measures are being implemented with careful attention to maintaining the fairness and integrity of court processes. The goal is not simply to introduce new tools, but to ensure that they are used * The Honourable Niki Sharma, K.C., is British Columbia’s Attorney General and Deputy Premier.

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in ways that enhance access to justice while preserving the principles that underpin the system. This year also marks the fifth anniversary of the introduction of virtual bail processes in Provincial Court, an innovation that has become an important part of improving timely, efficient access to justice across the province. Strengthening Supports for Survivors of Family Violence Ensuring that survivors of family violence can safely access the justice system is central to a fair and effective legal system. Recent efforts have continued to strengthen supports that help people navigate complex family law matters during some of the most difficult periods in their lives. As part of its commitment to continuous improvement, Legal Aid BC is transitioning virtual Family Law Centre (“FLC”) services in Prince George and Kamloops to in-person services. FLC is an innovative law clinic, funded by the Province, that offers free, trauma-informed services to survivors of family violence who are unable to afford legal representation. FLC provides representation and support to eligible clients to help stabilize their legal and non-legal issues. Access to justice can be particularly challenging in rural, remote and northern communities, which have a significant need for services. Research indicates rates of intimate partner violence are higher in these communities, and the nexus of risk factors is often more complex, resulting in the need for enhanced services for survivors. In recognition of these challenges, the Province has extended funding for the Safe Supports Project through March 2028, ensuring continued support for survivors of intimate partner violence navigating the family justice system. Services are delivered in partnership with local anti-violence organizations, helping ensure that support is accessible within the communities where it is most needed. The project provides trauma-informed, culturally grounded and clientcentred legal and non-legal support to survivors with Family Law Act matters. This includes help with safety planning, protection orders, case management, effective referrals, system navigation, obtaining court documents and court accompaniment. By addressing not only legal and non-legal needs but also the broader barriers faced by survivors in rural and remote communities, such as geographic isolation, safety concerns and limited access to services, the project represents an important step toward a more inclusive and accessible justice system.

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Addressing the Misuse of Non-Disclosure Agreements For several years, the Ministry has been monitoring the issue of non-disclosure agreements (“NDAs”) used in the context of allegations of harassment, discrimination or abuse. The issue is complex. NDAs can be misused in ways that cause harm, but they can also be used appropriately in ways that provide meaningful benefits to survivors by enabling negotiated resolutions and protecting privacy. My ministry is actively considering options and we expect to be able to share an update on this work later in 2026. Strengthening Court Safety and Capacity A well-functioning justice system depends not only on fair processes, but also on safe and orderly court environments. Recent efforts to strengthen the BC Sheriff Service are helping ensure that courthouses across the province remain secure and operate effectively. This year, the BC Sheriff Service reached full staffing levels, reflecting sustained efforts to recruit and retain sheriffs. Investments in training, compensation and recruitment have strengthened both safety and reliability across court locations. Sheriffs play a critical role in the day-to-day functioning of the justice system. Their presence helps ensure that judges, counsel, court staff and members of the public can participate in proceedings with confidence in their safety. During the FIFA World Cup, I was pleased to see strong collaboration across our justice system to ensure continued access to justice throughout the event. Staff from my ministry, together with the Provincial Court, BC Prosecution Service, the Public Prosecution Service of Canada, Legal Aid BC and police agencies, established a virtual and hybrid bail process to be followed in the event of large-scale arrests during the FIFA games period. In parallel, we planned and prepared for interpreters to assist individuals requiring interpretation services on the day of their court matter, helping to ensure meaningful participation in proceedings. I want to acknowledge and thank all justice partners for their coordination and commitment in supporting a responsive and well-functioning justice system during the World Cup. Advancing Anti-Racism Through Law and Policy My ministry recently released British Columbia’s first Anti-Racism Action Plan. It sets out actions across government to address systemic racism and reduce barriers in public services. For the justice sector, this includes access to legal processes, trust in public institutions, and barriers that affect how Indigenous and racialized peo-

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ple experience the legal system. It also includes community-based safety initiatives, including legal services, and the responsiveness of public institutions in creating organizations that advance racial equity. This Action Plan recognizes that systemic racism can show up in government legislation, policy, regulation and day-to-day practices. Addressing racism requires looking not only at individual services, but also at the structures, rules and decisions that shape how public systems operate. By focusing on both service delivery and the underlying legal structures, this work reflects an effort to address inequities at their source and ensure that public systems operate fairly and consistently. This approach underscores the role of law not only as a tool for resolving disputes, but also as a mechanism for advancing racial equity and improving how public institutions serve the people of British Columbia. Looking Ahead Taken together, these initiatives reflect a justice system that continues to evolve and respond to emerging challenges to better serve the people of British Columbia. Whether through expanding virtual access to the courts, strengthening supports for survivors of violence, or investing in system capacity, this work is guided by a shared objective: ensuring that justice is accessible, responsive and fair for everyone.

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COURT NOTICES AND DIRECTIONS By the Honourable Suzanne Anton, Q.C.*

Supreme Court of British Columbia Practice Direction Chambers Practice Effective Date: July 6, 2026 Number: PD-75 SUMMARY This practice direction sets out expectations regarding chambers practice and compliance with the Supreme Court Civil Rules (SCCR) and the Supreme Court Family Rules (SCFR) in chambers proceedings. It emphasizes certain requirements that allow chambers to function efficiently so that the court may hear and resolve as many matters as possible in a timely way. DIRECTION Content of a Notice of Application, Application Response, Petition and Response to Petition 1. The SCCR and SCFR establish requirements for the form and content of a notice of application, application response, petition and response to petition. 2. Parties and counsel must take particular care to set out a concise factual basis and a proper legal basis for seeking or opposing relief. This information is required to give proper notice to the opposing parties and the court of the nature of the application or petition, or the grounds for opposing it. The legal basis should be brief but informative and must include the rules, legislation, and case law relied on.

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3. The legal basis in a notice of application must also include a short summary of the legal arguments that the applicant intends to make and application of the law to the facts. 4. The court may decline to permit a party to rely on a legal argument which lacks a sufficient basis in the party’s notice of application, application response, petition or response to petition. 5. Failure to include a proper factual and legal basis for the relief sought may result in the application or petition being adjourned or dismissed. 6. Parties are reminded of SCCR 8-1(15.1)(b) and SCFR 10-6(14.1)(b) that require an applicant to provide the registry with a separate copy of the notice of application clearly indicating the orders sought. Where an application is being re-set, the orders sought must also be clearly identified in accordance with SCCR 8-1(21.1)(a)(iii) and SCFR 10-6 (19.1)(a)(iii). 7. Parties are also reminded that pursuant to SCCR 8-1(16), for civil matters two hours or less, no additional written arguments are permitted. Page Limits 8. SCCR 8-1(4) and 8-1(10) and SCFR 10-6(3) and 10-6(9) provide that a notice of application and application response must not exceed ten pages. 9. Unless the court otherwise orders or directs, the registry may decline to accept a notice of application or application response for filing that exceeds the page limit. 10. The court may decline to hear an application if the page limit is exceeded. The court may also decline to hear an application if the page limits have been subverted, for example through manipulation of font size, spacing and/or page margins. Affidavits 11. SCCR 22-2 and SCFR 10-4 establish requirements for the form and content of affidavits, including: a.

the content of an affidavit is limited to statements that a person would be permitted to state in evidence at a trial: SCCR 22-2(12) and SCFR 10-4(12). If an exception applies, such that the affidavit may contain statements on information and belief, the source of the information and belief must be given: SCCR 22-2(13) and 222(16); SCFR 10-4(13) and 10-4(16);

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b.

the person before whom an affidavit is sworn or affirmed must specifically indicate on the jurat whether the affidavit was sworn or affirmed: SCCR 22-1(5) and SCFR 10-4(5); and

c.

documentary exhibits attached to an affidavit must have page numbers, and be numbered sequentially, beginning with the first page of the first exhibit and ending with the last page of the last exhibit: SCCR 22-1(10) and SCFR 10-4(10).

12. SCCR 8-1(14) and 16-1(7) and SCFR 10-6(13) and 17-1(7) limit service and filing of affidavits in respect of applications and petitions. These limits provide structure to the presentation of evidence and discourage serial filing of affidavits. Unless the court otherwise orders or the parties of record consent, no additional or serial affidavits may be filed or served in respect of an application or petition. 13. The court may decline to admit an affidavit that does not comply with the requirements in the SCCR or SCFR. Application Records and Petition Records 14. SCCR 8-1(15) and 16-1(11) and SCFR 10-6(14) and 17-1(11) set requirements for the organization and content of an application record and petition record. An application record or petition record must: a.

be properly organized, with consecutively numbered pages and documents in the proper order separated by tabs;

b.

include only those materials that are required or permitted; and

c.

not include affidavits that no party to the chambers proceeding intends to rely on.

15. Unless the court otherwise orders or directs, the registry may decline to accept an application record or petition record that does not comply with the requirements in the SCCR or SCFR. 16. The court may decline to hear an application or petition if the application record or petition record does not comply with the requirements in the SCCR or SCFR. Condensed Books 17. Use of a condensed book is strongly encouraged, particularly for an application or petition that is estimated to take 60 minutes or more for hearing. 18. A condensed book must only include material found in the application record or petition record, such as excerpts from affidavits, exhibits and

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pleadings or other documents, except that a condensed book may include: a.

copies or excerpts of authorities, including the first page or headnote;

b.

copies or excerpts of legislation, including the first page; and

c.

for applications estimated to take more than two hours, written argument.

19. A condensed book must include a table of contents with cross-references to the documents in the application record or petition record. 20. A party or counsel who has prepared a condensed book may hand it up to the presider at the hearing of the application or petition and must provide a copy of the condensed book to all other parties at or before the hearing. Time Estimates 21. The SCCR and the SCFR require parties and counsel to provide time estimates for a hearing of a chambers proceeding. 22. Parties and counsel must provide accurate time estimates and avoid underestimating the time required. A time estimate must include time for the submissions of all parties and/or counsel, including time for reply and submissions on costs, and, where appropriate, for matters estimated to take two hours or less, time for the court to give reasons. 23. Parties and counsel must adhere to the time estimates provided, failing which the court may adjourn the matter over to another date or generally. Costs 24. The court has discretion under SCCR 14-1(15)(b) and SCFR 16-1(14)(b) to make an order for costs of an application, assessed summarily and payable forthwith, including in circumstances where a party has not complied with the SCCR and SCFR. 25. Parties are reminded that, subject to the discretion of the presiding judge or associate judge, failure to comply with the requirements described in this practice direction may result in a denial of costs or an order for costs assessed summarily as a lump sum and payable forthwith. Ron A. Skolrood Chief Justice ЖЖЖ

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NOTICE Changes to Online Booking for Long Chambers Hearings in Civil and Family Matters Commencing July 1, 2026, the Court will be implementing changes to the Court Online Booking System (COBS). In Revelstoke and Salmon Arm, long chambers hearings will be booked by telephoning Supreme Court Scheduling. In all other registries, long chambers hearings in] civil and family matters will be done online using a ‘booking window’ process. Long chambers hearing dates will be released two months in advance. More information about COBS is available here [online: <https://www.bc courts.ca/supreme_court/scheduling/online_booking.aspx>]. Release of Long Chambers Hearing Dates Effective July 1, 2026, the Court will transition to a 2-month rolling booking schedule for all court locations. This means that long chambers dates for September 2026 will be released on July 1, 2026, dates for October 2026 will be released on August 1, 2026, and so forth.

Booking Commences on:

For Long Chambers Dates in:

July 1, 2026

September 2026

August 1, 2026

October 2026

September 1, 2026

November 2026

October 1, 2026

December 2026

November 1, 2026

January 2027

December 1, 2026

February 2027

January 1, 2027

March 2027

In registries where dates have previously been released further than 2 months in advance, there will be a period of transition as this 2-month rolling booking schedule is implemented. The new booking schedule can also be found on the Scheduling page for each location [online: <https://www.bccourts.ca/supreme_court/ scheduling/>].

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Telephone Booking of Long Chambers Hearings In the court locations listed below, parties and counsel will book trials and long chambers hearings by telephoning Supreme Court Scheduling. Interior:

Revelstoke, Salmon Arm

Online Booking of Long Chambers Hearings in all Other Registries Effective July 1, 2026, all court locations will utilize a ‘booking window’ process for allocating newly released long chambers dates. In the court locations listed below, there will be a ‘booking window’ process for allocating newly released long chambers hearing dates, and an ‘ondemand’ booking system for previously released hearing dates that remain available: Northern:

Dawson Creek, Fort St. John, Prince George, Prince Rupert, Quesnel, Smithers, Terrace, Williams Lake

Interior:

Cranbrook, Kamloops, Kelowna, Nelson, Penticton, Rossland and Vernon

Lower Mainland:

Abbotsford, Chilliwack, New Westminster, Vancouver and Port Coquitlam

Vancouver Island Campbell River, Courtenay, Duncan, Nanaimo, Port & Powell River: Alberni, Powell River, Victoria This is a change for the Northern registries, Powell River and the Vancouver Island registries (except Victoria). Booking Newly Released Hearing Dates The process for booking newly released long chambers hearing dates is as follows: 1)

Parties and counsel submit, within a booking window from the 1st to the 7th of each month, a ranked list of their preferred dates among the newly released long chambers hearing dates offered by the Court. COBS will be available 24 hours a day during the booking window.

2)

Upon closing of the booking window, court time is allocated among those who submitted booking requests within the booking window such that all users have an equitable opportunity to secure newly available long chambers dates. Unsuccessful booking requests will be tracked in COBS, and priority assigned to subsequent requests.

3)

After the booking window has closed, all parties and counsel who submitted requests within the booking window will receive an email confirming a hearing date or that their request was unsuccessful.

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Booking Otherwise Available Long Chambers Hearing Dates For long chambers hearing dates that are available but are no longer considered to be “newly released” (i.e. long chambers hearing dates that remain or become available after the 7-day booking window process has been concluded), parties and counsel will be able to log into COBS and select from the Court’s available dates. Supreme Court Scheduling Staff Remain Available to Assist Online booking through COBS is intended to meet the needs of parties and counsel booking conferences, trials and long chambers hearings in civil and family matters in the normal course. Scheduling staff will remain available to assist individuals who, due to exceptional circumstances, are unable to meet their booking needs through COBS. Parties and counsel requiring special assistance may continue to telephone Supreme Court Scheduling staff in the relevant court location. Accessing the Court Online Booking System Parties and counsel can access COBS by logging in using their BCeID. Parties and counsel who do not already have a BCeID will need to register for one in order to use COBS. Information about how to register for a BCeID is available here [online: <https://www.bceid.ca/register/>]. Lawyers who are in good standing with the Law Society of British Columbia will also have the option of using the digital credentials in their BC Wallet to log into COBS. More information for counsel on how to download the BC Wallet app, and add/use their digital credentials, is available here [online: <https:// www2.gov.bc.ca/gov/content/governments/government-id/bc-wallet>]. Dated June 23, 2026 at Vancouver, British Columbia By direction of Chief Justice Ron A. Skolrood Supreme Court of British Columbia

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NOS DISPARUS By R.C. Tino Bella

Robert James Falconer, K.C.

Robert (“Bob”) James Falconer was born in Vancouver in 1930 to parents Jim and Grace Falconer, becoming a younger brother to sisters Marion and Margaret. Bob attended Edith Cavell Elementary School at a time that was shaped heavily by the Great Depression and, toward the end of the decade, the onset of war. Bob’s first job was in old Shaughnessy, where he delivered papers from his bicycle. Later in life Bob took his children trick-or-treating on the same streets, telling tales of the storied residents of the stately homes, his former customers—politicians, judges and industrialists of the day. At Prince of Wales High School, he became a lifelong member of the “Grommets”, a group of boys and later men who kept the “Order of the Golden Grommet” and a commitment to regular socialization and social outings. The Grommets and partners met twice a year up until a few years ago, with Bob being one of the last remaining members. At 16, Bob left home for the summer to work in a logging camp at “Pioneer” in the Gold Bridge area, north of Pemberton. Fortunately, Bob secured a much preferable summer job once at UBC as head porter at the train station at Lake Louise. This job secured Bob’s lifelong love of the Canadian Pacific Railway and the mountains. One summer day a train arrived at the Lake Louise train station with a very special passenger from London, Ontario. His wife, Donalda, would tell with great delight, how Bob watched her struggle with her luggage, before finally stepping up to help her with her bags. He was simply awestruck with the woman he would eventually marry.

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Bob and Donalda were married in London, Ontario, when Donalda was 24 years old and Bob was 25. In the early years, Donalda was employed as a French and music teacher, but before long they had four children to keep them busy: Robert James, Mary Margaret, Caroline Anne Macpherson and Ian Hancock. Bob graduated from UBC law school and was called to the British Columbia bar in 1954. He articled with Long Miller Long, eventually becoming a partner in the firm then renamed Long Miller Falconer and Long. The early years of Bob’s legal practice were varied and included criminal trial work, civil litigation and even advising the then British Columbia Board of Examiners in Optometry. Bob focused his practice on civil litigation with his office in the Birks Building at Granville and Georgia, sharing office space with Macaulay McColl and later with Ferguson Gifford. Bob was appointed Queen’s Counsel in 1991, having garnered a reputation as an outstanding litigator. Most of his trial work related to insurance defence for large corporate clients, the Insurance Corporation of British Columbia and Eagle Star Insurance, with a few plaintiffs’ files to keep things interesting. As a sole practitioner, he was a highly respected barrister who always made time to help junior counsel. Eventually, his practice focused primarily on appeal work, which he enjoyed, although we do think he missed a bit of the trial work. He was never overtly aggressive or dramatic (he would always scoff at the courtroom dramatics portrayed on television); rather, Bob’s litigation style, like his cross-examination style, was precise, thorough and fair. Possibly one of Bob’s favourite successes involved a win at the Canadian International Trade Tribunal, not a regular forum for Bob. In the 1980s Bob embarked on collecting a range of British pub artefacts which he installed with great pride in his home den. Many were purchased directly during numerous trips with Donalda to England. But many other items were purchased locally at The Source, a local antique store selling a range of English items which the owners imported directly from England. When the Deputy Minister of National Revenue classified some painted pub signs imported by The Source as “signs” (attracting a high rate of import tax), Bob successfully challenged the decision on the basis that the pub signs were in fact “original paintings by artists”, resulting in a lower import tax. While not the highlight of his career, it might have been the most fun he had in his practice, dealing with subject matter near and dear to him. In the early 1960s a colleague mentioned a vacation spot on Vancouver Island, Seacroft Cabins, at Bowser. So began the Falconer family tradition of

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packing up the station wagon to spend three blissful weeks in a tiny oceanside cabin at Bowser. Bob gave his children so many great adventures as children and was always there for their extracurricular activities. He coached little league, took them skiing on the local mountains on the weekend and attended their school concerts and events. That he did so while also carrying on a demanding litigation practice is a testament to his commitment to his family. Bob not only collected English antiques and pub artefacts, but he was a lover of sports. A lifelong fan, he attended the first game of the BC Lions in 1954 and, that year, watched the Miracle Mile at the new Empire Stadium when Roger Bannister beat John Landy to the finish line at the Commonwealth Games.Bob was a lifelong Vancouver Canucks fan. His love of sport included rowing and he regularly attended local regattas at Beaver Lake. He went to the Henley Royal Regatta in Henley, England several times, which he truly loved. Bob had rowed for UBC as a student and was a great supporter of the sport locally, including a period on the executive of Sport BC and as an official for rowing at the Montreal Olympics in 1976. In his 70s, Bob decided to join a running clinic at the Kerrisdale Community Centre to train for the Vancouver Sun Run. He completed the race, eventually becoming a run leader for the Sun Run—and so became “Bob’s Mob”, the dedicated runners meeting twice a week rain or shine, to train for the Sun Run and several other local races and events. Bob and Donalda loved the camaraderie of the group, and had so much fun at parties and events for the “Mob”, who summarized: “His impact has been as wide as his smile and as deep as his commitment to making all our lives healthier and so much fun” and “What a great friend and mentor he was to us all with his bright spirited encouragement, sharp intellect, and always good humour”. In addition to his devotion to Donalda and his children, Bob was devoted to his mother, Grace. Bob’s father, James, passed away in the late 1960s and Bob made sure that his mother was well supported until her passing at age 103. Bob loved being a litigator and continued to practise until he was 80. The final years of his life were not easy, especially after the passing of Donalda in 2023. Despite his declining health, he faced his health challenges with great stoicism and did not complain. He continued to follow his favourite sports teams and greeted visitors with a smile. His children and friends will forever miss his intellect, his smile, his great stories and especially his legendary sense of humour. Mary Falconer

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David Andrew Roper

David Roper was born on February 13, 1947, in Bradford, Yorkshire, England—a city of wool, Blake’s “dark Satanic Mills” and stubborn Northern pride. He was the son of Jack and Doris Roper. Jack was a Royal Air Force veteran of the Second World War who spent the whole of his working life in Bradford’s textile mills, the engines of the city’s economy for generations. Doris was a legal secretary at A.V. Hammond & Co.— later Hammonds LLP, then Hammonds Suddards, and now absorbed into the global machinery of Squire Patton Boggs—which was, at the time, the United Kingdom’s largest firm of solicitors outside of London. It was a fitting early connection to the legal world for a young lad who would one day find a home in British Columbia and build a quiet, honourable career in the law. David excelled academically from a young age. He attended Thornton Grammar School in Bradford. Electives in German first awakened what would become an abiding interest in Germany and Germans. With strong academic performance and the support of the aldermen and burgesses of the City of Bradford, he participated in several student exchange programs in Germany and Austria, both during his school years and later as an undergraduate. He studied and worked in Munich, Innsbruck, Vienna and Kiel. During his studies he met Kurt Schuschnigg, the Austrian chancellor who had stood up to Hitler and opposed Anschluss with Nazi Germany. He absorbed the language, the landscape and the intellectual traditions of Germany with the same quiet intensity that would come to mark his professional life. David completed his B.A. at the University of Sussex. He then faced a choice between graduate programs at McMaster University or UCLA. He ultimately chose Hamilton over sunny California, due to his socialist leanings at that impressionable age coupled with a reluctance to register under the United States’ Selective Service System during the ongoing Vietnam War. It was a choice made with principle—a quality that would define his approach to life and law alike. He completed his M.A. at McMaster in 1970. After McMaster, David returned to England, taking a break from academic life. It was during this interlude that he met his future wife, Josephine Kershaw, a registered nurse at Bradford Royal Infirmary. Through Josephine, David found employment as an orderly at the city morgue. This was an unconventional entry point, one might observe, for a

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future solicitor, though perhaps not without its own peculiar utility in developing a certain steadiness of temperament and familiarity with the finality of human affairs. In the early 1970s, David returned to Canada, this time to the University of British Columbia, where he was accepted for doctoral work in the Department of Germanic Studies and took on teaching responsibilities in German for undergraduates. He supported himself through teaching, through work at the Molson Brewery on Burrard Street, and through unemployment insurance during seasonal layoffs, the latter affording him ample time to relax at Kits Beach, funded, as David dryly noted, entirely at the largesse of the taxpayer. He ultimately concluded that teaching was not his calling. With no background in mathematics or science, he narrowed his options to law or the Canadian Foreign Service. He chose law, much to the benefit of the profession. David enrolled at the University of British Columbia Faculty of Law (as it then was) while simultaneously completing and defending his Ph.D. dissertation, “The Theme of Aloneness in the Work of Hans Erich Nossack”, in his first year of law school. It was an extraordinary feat of intellectual stamina and speaks to both the breadth of David’s mind and the depth of his discipline. Josephine joined David in Vancouver at around this time, and the two lived at 777 Burrard Street, marrying a few years later. David articled with, and later became an associate of, Mable Eastwood at Eastwood & Company. He worked from both downtown Vancouver and Eastwood’s satellite office on the Sunshine Coast. His first clients included the Brewery, Winery & Distillery Workers Union—a connection forged, naturally enough, through his time at Molson. David was a young lawyer with an eclectic résumé: textile town, grammar school, Germanic philosophy, Bavarian exchanges, city morgue, brewery floor and Kitsilano Beach. But it was precisely this breadth of experience that gave David his distinctive character as a lawyer. In 1979, David and Josephine moved to North Vancouver, settling near 15th Street and Lonsdale Avenue. At this time, David hung his own shingle. The “shingle” was actually an attractive, dignified brass plaque, embossed “David A. Roper, B.A., LL.B., M.A., Ph.D. – Barrister & Solicitor, Notary Public”. Initially practising from his home, David later established offices in James Block at 14th and Lonsdale, where he formed collegial relationships with North Vancouver lawyers including Robert T. Lewis, Jon V. Ardagh, Richard P. Begin, Susan M. Hart and others. In the mid-1980s he took on an articled student, Casey McCabe, who later became a successful labour lawyer. Through the mid-1990s David main-

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tained a general practice encompassing both litigation and solicitors’ work—the kind of broad, versatile practice that has grown regrettably rare in an age of ever-narrowing specialization. David handled criminal and family cases, civil litigation and a solicitor’s practice all with the same careful, methodical attention. He was not a lawyer who sought the dramatic; he was a lawyer who sought to get things right. In 1993, David made the prescient decision to purchase the home next door on 15th Street, operating his law office from the top floor and renting the basement. He reasoned that it made more sense to build equity than to pay someone else’s mortgage. This decision captured something essential about David: the refusal to do things merely because convention dictated, combined with a shrewd eye for what actually made sense. Around the same time, he began tailoring his practice to general solicitor’s work, with an emphasis on real estate, corporate matters, and wills and estates. Over the years, David earned a well-deserved reputation as a “friendly neighbourhood lawyer”, building a loyal client base with a remarkably high degree of repeat business for that type of practice. Indeed, David’s entire advertising expense consisted of a one-time advertisement in the North Shore News and an unassuming Yellow Pages listing. Word of mouth and referrals from colleagues were otherwise enough to sustain a steady practice. Clients appreciated the relaxed residential atmosphere of the office— more like visiting a trusted friend than attending on a professional—and David’s very reasonable rates. He brought to his work a fastidious attention to detail, a quiet thoroughness, and an innate sense of integrity that his clients recognized and trusted implicitly. His files were meticulous, his advice was sound, and, as he was apt to say, his “word was his bond”. David was a man of distinctive habits and personality. Despite his deep fondness for Germany—and perhaps because of his Yorkshire roots—his vehicles were predominantly British. This included a Sunbeam Alpine, and several Range Rovers, but most notable among them was a 1968 long-wheelbase Land Rover Series IIA in Pastel Green that served for a time as his daily driver around the North Shore. Riding in the Land Rover lent a faintly expeditionary air to even the most routine trips. One suspects that the vehicle’s utter indifference to popular aesthetics appealed to something deep in David’s character. There was also the coonskin cap, complete with a Davy Crockett-style tail. David, who grew up in the midst of the 1950s “Crockett Craze” in the United Kingdom, no doubt prized this inimitable headdress. Each chilly afternoon, around three or four o’clock, David could reliably be found making his way to the bank and post office in the coonskin cap, handling the

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day’s banking and mail. The coonskin cap became something of a local oddity on Lonsdale. It was a sartorial choice that was pure David, indifferent to fashion and entirely committed to sentimentality. David loved the outdoors. Many weekends were spent camping, canoeing and fishing. Campfire chats about all topics, from the history of early man, to current events, to religion and philosophy were some of his most cherished moments. David once remarked, after a crisp early morning paddle on Birkenhead Lake, surrounded by the rugged, glaciated peaks of the Coast Mountains, that it was the first time he truly felt he was Canadian. Later, he and Josephine loved exploring the Pacific Northwest and beyond, often towing a small Airstream trailer on their adventures. Both David’s stepdaughter, Elizabeth, and his son, George, worked with him in the office at various times, and this proved to be a formative experience for them both. Elizabeth went on to serve many years as a staff member at the Department of Justice. His son, George, studied law at UBC and now practises commercial litigation at Owen Bird. That both children found their way into law speaks to the quiet influence David exercised not through exhortation but through example: a life lived with integrity, wisdom and purpose. David retired from the practice of law in 2017, having served the North Shore community for nearly four decades. It was a career built not on flash or self-promotion, but on competence, reliability and genuine human connection—the very qualities that the profession, at its best, is meant to embody. He was fortunate to enjoy his retirement with Josephine by his side, along with their beloved dogs—first Rex, and later Daisy—companions in the slower, gentler rhythm of days no longer governed by filing deadlines and completion dates. David’s life resists easy categorization. He was a scholar who became a solicitor, a Yorkshireman who became a British Columbian, a man of deep intellectual ability who found his greatest professional satisfaction in the humble, essential work of helping ordinary people buy their homes, plan their estates, and structure their small businesses. He never sought the spotlight. He never chased the largest files or the most prominent clients. In a profession that too often measures success by billable hours, David measured it differently: by the trust placed in him, by the problems quietly solved, by the handshakes exchanged on closing day. What he did, he did with care, with integrity, and with skill that made every client feel that their matter—however modest—was worthy of his full attention and his best effort. Those who had the privilege of knowing David will remember a man of gentle humour, firm principle and discernment—a man equally at home

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discussing the existential themes of post-war German literature and the finer points of a purchase and sale agreement. They will remember the coonskin cap and the Land Rover, the Airstream and the afternoon walks to the post office. They will remember the care and attention to detail, the help he provided, and the modest bill at the end. They will remember a lawyer who, simply by being himself, showed what the practice of law looks like when it is conducted with decency and purpose. David is survived by his wife, Josephine; his stepdaughter, Elizabeth; his son, George; and three grandchildren, Andrew, Alex and Rebecca. He leaves behind a legacy of the trust of a community, the respect of his colleagues, the love of his family, and the memory of a life lived well and fully. The legal profession is diminished by his passing, but immeasurably enriched by his years of service. David Roper was, in every sense that matters, the very best of what a lawyer and man can be. George J. Roper

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Kenneth John Doolan

Ken Doolan was one of the early “master” pioneers of the B.C. Supreme Court. He left an indelible mark on the position and the legion of litigants and lawyers who appeared before him. Ken was born in the midst of the Great Depression on September 13, 1933 in St. Albert, Alberta to Olive and Oliver Doolan. The family moved to Vancouver, but in 1942, his parents, fearing attacks on the West Coast, sent him and his older sister, Yvonne, to stay in Edmonton to live with grandparents. Ken then returned to Vancouver and attended Bayview Elementary School and Kitsilano High School. It is not widely known, but Ken was a Canadian gymnastics champion in high school. He was also an elite swimmer and diver, maintaining those activities beyond high school. A full-page advertisement in the June 2, 1961 edition of Time magazine showed Ken modelling a beach jacket and swim trunks, attesting to his athletic physique.

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Ken enrolled in the bachelor of commerce program at the University of British Columbia. He graduated in May 1961 and obtained his bachelor of laws degree in May 1962. Ken was proud to have articled to Allan McEachern (later Chief Justice of the Supreme Court and Chief Justice of the Court of Appeal) at Russell and DuMoulin (now Fasken). He was called to the bar in May 1963. Ken generally practised as a sole practitioner doing both solicitor’s and barrister’s work. Ken’s interest in judicial work resulted in his appointment as a pro tem judge of the Provincial Court in July 1972. In December 1984 Ken embarked on the judicial career that would take him to retirement. He was appointed a district registrar of the B.C. Supreme Court, followed by an appointment as a registrar in bankruptcy in January 1985. Ken loved the work as registrar. He maintained an astounding array of files on every imaginable topic related to that work. He had a keen understanding of and a genuine interest in that aspect of the court’s work. Importantly, he showed respect to all those who appeared before him. 1989 marked a sea change in the Supreme Court. Major amendments to the Supreme Court Act brought about the merger of the Supreme and County Courts, effective July 1, 1990. At the same time, in recognition of the pressure of work on the courts caused by the recession, which affected much of the decade, the then-Attorney General (Bud Smith, Q.C.) moved to implement a decision to appoint ten masters (now known as associate judges) to the Supreme Court. Prior to that time, only Tom Halbert had served as a master and district registrar in Victoria. In November 1989 the ten masters were appointed by order in council: John Horn, Ken Doolan, Robert Powers, Alan Donaldson, Bill McCallum, Pamela Kirkpatrick, Allan Patterson, Brian Joyce, Bill Grist and Dean Wilson. As then-Chief Justice Esson said on the occasion of Ken’s retirement, Ken was well qualified by experience and disposition to fulfill the role of master. He took a leading part in making the system work and in ensuring that the new category of judicial officer would improve the court’s performance. The challenges faced by the initial masters forged a common bond. The legal profession was understandably curious as to how the new system would work. Ken knew that the masters would have to work hard to prove the master’s program a success. He was instrumental in developing strategies and processes for dealing with the work, which evolved as time went on. Ken was enormously generous with his time and expertise. His generosity and wonderful sense of humour helped to serve as the ballast that kept the master ship on an even keel.

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No account of Ken’s life can omit the love of Ken’s life, his wife Herta. Ken often described seeing Herta (then Miss Richmond) walking down Robson Street. He was smitten. They married in 1966 and had four children: two sets of twins (Sean and Marisa, and Jason and Dean) of whom they were enormously proud. Ken and Herta shared a deep love of family and an infectious sense of fun. They spent many happy times with family and friends at a property in Hope adjacent to a body of water into which Ken made sure everyone was dunked. For some time, Herta worked as a court clerk at the Supreme Court in Vancouver. They travelled together from their home in Richmond and later Delta to the courthouse each day. On one occasion, Ken, who was of short stature, had survived another long day in chambers (where the list routinely hit 100 applications a day) when he snapped at Herta on the way home, telling her that he had been “up to his ass in alligators all week”. Herta’s immediate, composed and hilarious response was “How high can that be?” Ken often recounted that anecdote and many others, always followed by his trademark guffaw and ensuing peal of laughter. The joke was always on him, never on anyone else. He seemed constitutionally incapable of being hurtful in the slightest way. Ken was a wise mentor to many of the masters who were appointed in the following years. Ken emphasized the need to show patience, courtesy and compassion, often noting that, for many young lawyers appearing in masters’ chambers, it was often the first time they had appeared in court. How they were dealt with would remain with them for a long time. Ken retired on September 13, 2003. Ken enjoyed many years with his family in retirement, and was especially happy to spend time with his cherished grandchildren (Cassidy, Lexie, Ella, Kate, Grayson and Rylan) and had been looking forward to meeting his first great-grandchild, Meadow, who was born two months after he died on January 30, 2026. The province and the profession were fortunate that Ken graced the court for almost 20 years. His wisdom, humility, affability and compassion serve as hallmarks for everyone who is similarly privileged to serve. The Honourable Pamela Kirkpatrick

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James Murray MacIntyre, K.C.

Jim MacIntyre was connected with law schools from birth. His father, Malcolm Murray MacIntyre, was a professor of law at the University of Alberta when Jim was born on September 6, 1933. Jim’s father was originally a New Brunswicker and his mother, Margaret Emily MacIntyre (née Hilton), was from a Nova Scotian seafaring clan. When Jim was 11 years old, “Dr. Mac” resigned from the University of Alberta and the family moved back to Sackville, New Brunswick, where Dr. Mac opened a law practice. In 1948 Dean George Curtis recruited him to the UBC law school, which had opened its doors three years before. When Jim decided to study law himself, he chose to do so at UBC, unfazed by his father being a dominant figure there. Jim graduated in 1957 in the smallest graduating class the law school had had up to then. Among Jim’s classmates were William Esson, George Fujisawa, Gerald Lecovin, Alec Robertson and Alan Vanderburgh. Jim was the gold medalist. He did a master’s degree at Harvard and took a faculty position at Queen’s in 1959. After his father died in 1964, Jim joined the UBC Faculty of Law, where he remained until his (then-mandatory) retirement in 1998. The subjects that Jim taught over those 34 years covered a wide range, partly because he was willing to take on a new course or fill in for somebody on leave, and partly because he was happy to try new things if the law school needed somebody to do them. The course areas he was most associated with in my time were labour law, income tax and evidence. Jim’s teaching style was anything but formal. He saw no point in spending a lot of time telling a class what they could read for themselves. So he would flip through the pages of the casebook, giving a running commentary: “Nothing much in there—well, except on pages 324–25, where the court discusses this interesting point. What do you think of that?” He was famous for finishing the prescribed course material each term faster than any other instructor. As students became accustomed to his method, they could see that what he was doing was a kind of “intellectual improv”. He would play with ideas as they came to him. There was a plan, but it was extremely elastic. My colleague, Bruce Woolley, K.C., recalls that as Jim was discussing court procedure in first year Legal Institutions, he asked on the spur of the moment,

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“How important do you think courtroom design is?” What unexpectedly followed was half an hour of very interesting and useful discussion among the class about what physical features a courtroom should have to enhance the effectiveness of what went on in it. I took Jim’s course in income tax. One of his favourite cases was a thenrecent one (MNR v. Eldridge, 1964 CanLII 1110 (Ex. Ct.)) in which the taxpayer was the proprietor of a call girl business that had been shut down by the police. The seizures of evidence brought to light the records of her earnings, which the tax department assessed as business income. The issue in her appeal was whether she could deduct a number of expenses of the business, including legal fees to get the call girls out of jail. This raised the spectre of public policy, because Ms. Eldridge was, in a way, claiming some relief from the costs of a criminal enterprise. The court, unconvinced by this supposed taint, said the deductions were proper. Jim effortlessly encapsulated the reasoning as “If the wages of sin are taxable, the wages of the sinners must be deductible.” I taught the income tax course for years, and each year I would quote Jim, with attribution. Jim wrote an excellent article on the case (J.M. MacIntyre, “The Deduction of Illegal Expenses” (1965) 2 UBC L Rev 283), but he forbore from using the “wages of sin” bon mot in a scholarly journal. Jim’s talent for playing with ideas as they came along extended to his exams. A factual problem would take on a maze-like quality as twist followed turn, often entertainingly, and legal issues proliferated like weeds. My late colleague, Barry Slutsky, would refer to such questions as “Jimmy’s ramblers”. They notched up the stress level of the exam at first, but students did OK with them and Jim was a sympathetic marker. Jim’s ability to find enjoyment in whatever situation he found himself in was tested when it came to administrative tasks. Nevertheless, he took on administration when deans or others asked him to, and he was effective. He served as associate dean for two stretches, 1982–85 and 1995–1996. His gregariousness, good humour and feeling for people made him especially good at the personal relations side of these positions, which was often the most important side. For some years he chaired the board that, under the thencollective agreement between UBC and the Faculty Association, handled promotion and tenure appeals, and sat on appeals himself. He was adept and totally at home in such a role, and all participants in the proceedings quickly learned to like and to trust him. He was also active outside UBC in labour relations, and especially labour arbitration. He was vice-chair of the BC Labour Relations Board in 1979-81. His practice in turn fed back into his teaching. For many years, extending

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well beyond his retirement from the faculty, Jim was advisor or co-advisor of the UBC team in the National Labour Arbitration Moot, always held in Toronto. Generations of UBC students enjoyed, in that moot, what I am sure was one of their best educational experiences. Jim’s retirement was in the same year (1998–99) as Tony Hickling’s and Don MacDougall’s. The three of them were good friends and happily agreed to the law school putting on a dinner at the Point Grey Golf Club for their combined retirements. Lots of family and friends came, and the scale of the occasion, plus the personalities of the three retirees, made it one of the more memorable retirement events the law school has held. Jim served the legal profession with distinction. He was elected a bencher of the Law Society from the County of Vancouver and served from 1984 to 1996, when he became a life bencher. In 1987 he was appointed Queen’s Counsel. Although Jim had a wide-ranging, nimble mind, he found technology basically alien. The digital age, for him, was a step backward in civilization. In 2009–2011, when the current law school building (Allard Hall) was under construction, the faculty offices were mostly in a building named, then and now, the West Mall Swing Space. Desks were arranged in a large open area in cubicles of two or three. I shared a pod with Jim, who had long been retired but still came in regularly. My memories of that place are of allround sociability (you could not help being aware of everybody who was in) punctuated, with some frequency, by groans of “Oh, no!” right behind me. That was always because a computer file or email Jim was working on had suddenly vanished from the screen, necessitating protracted, often joint, efforts at retrieval. Jim took these mishaps as a deliberate, malign tactic by the computer. For all of us at the law school—faculty, students and staff—having Jim on the faculty was fun. Of course, many other colleagues I have known over the years were fun, too, but, for me, the word fits Jim more perfectly and more fully than it does anybody else. When I began teaching in 1972 there were already Jimmy stories. One was about a faculty bridge game, of which there had used to be many, but they had disappeared by the time I started. At one of these games, our late colleague, Don MacDougall, was taking his time deciding which card to play next, and another colleague, Peter Burns, wanting to get on with the game, got up and paced back and forth. “Ah yes,” Jim said in his sonorous voice, “MacDougall fiddles while Burns roams.” Jim’s life was not bounded by, or even centred on, the law school. He had a great gift for close, generous friendships with a sprawling assortment of family (mostly cousins on his mother’s side, the Hiltons) and lifelong

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friends who were tantamount to family. He was a beloved “Uncle Jimmy” to all those people’s children and grandchildren. Not surprisingly for the grandson of an East Coast sea captain, Jim loved being out on the water on a boat. He often loaded up his boat, The Margaret E, with his friends and their families and cruised up the coast, undeterred by the need to squeeze a family of seven onto a boat with four berths. In 1974 he supervised several of his friends in the building of the cabin at Green Bay on Nelson Island. At around this time he acquired the Ariel which made many trips to Green Bay loaded with his friends, their children and later grandchildren, food, tents and other necessities for a successful weekend. If things got a little hectic and Jim needed some quiet time, he would announce he was going to the Ariel to "check the bilge". Jim loved to travel. In 1968 he made an epic trip to Spain and North Africa. He noted in his journal that “It was in my little brown VW bug, bought for 50 pounds, from Dover to Paris, Lyons, across the border to Spain, then on to Malaga, then Gibraltar.” At this point he had no papers, which had been stolen “at the bullfight” along with his camera. A postcard sent to his family from Morocco records: “after a long argument with the Spanish police at Gibraltar we finally were allowed to take the ferry to Tangiers”. Thankfully, they also let him back into Spain. His travels took him all over—with friends and family to Africa, Scandinavia, the United Kingdom and Ireland, continental Europe, Turkey, China, Mexico, Australia and New Zealand, Japan, Costa Rica, Peru and more. He also took many trips to Scotland in pursuit of his MacIntyre ancestors. Jim died at home on May 13, 2026 after a long encroachment of dementia. Over the last years his family and friends had cared for and supported Jim to allow him to remain at home with compassionate and expert caregivers. Although his ability to communicate was diminished, he continued to enjoy and appreciate music and short trips on the Ariel and to his cabin at Green Bay. A Celebration of Life was held on campus in the former Faculty Club (now the University Centre) on June 24, 2026, by (to quote the program) “his family: the Dobsons, the Hiltons, the Vanderburghs, and his many friends”. Music was sung by members of the Vancouver Bach Family of Choirs. Jim had sung with the Bach Choir for many years and it, too, formed part of his family. It was a Celebration of Life that really felt like a celebration. All of us who worked alongside him at the law school recall Jim MacIntyre, and the fun and friendship he gave us, warmly and with gratitude. Joost Blom, K.C., with contributions, including the picture, from the Vanderburgh family

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NEW JUDGES By R.C. Tino Bella

The Honourable Judge Christina Spence Proteau

The Honourable Judge Christina Spence Proteau was born in Port Alberni on January 4, 1983, to parents Mark Spence and Johanna Neuretter. Her father’s family is Métis, from the Spence Lake region of Manitoba, and her mother’s family has FrenchCanadian and Austrian heritage. Christina is the oldest of four siblings. When she was young, her father became a single parent and Christina took on the role of helping to look after her sister Vanessa. This responsibility required her to grow up quickly and develop a maturity that has always exceeded her age. Mark was a logger and, despite the long and exhausting hours his job entailed, he was devoted to seeing that his daughters had every opportunity to excel in their pursuits. With his encouragement and guidance—and more than a little determination of her own—Christina proved to be a talented athlete and musician. She played back catcher in softball and was on the B.C. team that won the gold medal at the 1997 North American Indigenous Games. She also played tenor saxophone from grades 7 through 12 in concert, stage and combo bands, competing at the national finals five times and winning a Musicfest National Award. Not surprisingly, Christina was also driven to succeed academically. She left junior high school as the top academic student and top female athlete. When she graduated from Alberni District Secondary School, she was the class valedictorian. Where Christina truly set herself apart, however, was in competitive golf. As the first golfer to be inducted into the UVic Sports Hall of Fame, she has been one of the best amateur female golfers in Canada. There is little doubt

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that she will one day be inducted into the British Columbia Golf Hall of Fame and Canadian Golf Hall of Fame. Some of the highlights of her golf career include: •

As a 16-year-old junior, she was the top Canadian and in the top 20 overall at the 1999 Junior Worlds at Torrey Pines Golf Club in San Diego, California.

•

She attended the University of New Mexico in Albuquerque on a golf scholarship (something that her former colleagues in the Port Alberni Crown office will be surprised to learn) where she competed in Division 1 of the National Collegiate Athletic Association (“NCAA”). Her accomplishments there included:

ß graduating with honours in English literature with a minor in French

ß ß ß ß •

president of the NCAA Student-Athlete Advisory Committee three-time National Student Athlete Association All-Scholar 2005 NCAA Woman of the Year for the State of New Mexico All-Conference Player for the Mountain West Conference

Her amateur golf career has included:

ß Canadian University Champion – 2007 and 2008 ß World University Games – 2007, top Canadian and 27th overall

ß World University Golf Championship – 2008, top Canadian and 23rd overall

ß B.C. Women’s Amateur Champion – 2006, 2009 and 2011 ß B.C. Women’s Mid-Amateur (over 25) Champion – 2009, 2011, 2013, 2014, 2015, 2016 and 2018

ß Canadian Women’s Mid-Amateur Champion – 2009, 2011, 2012, 2013, 2014 and 2021

ß U.S. Women’s Open in Colorado Springs, Colorado – 2011, missed the cut by one shot after Michelle Wie made a birdie on her last hole to adjust the cut line

ß U.S. Women’s Mid-Amateur Championship – 2014, quarterfinalist

ß USGA Louisiana – 2015, semifinalist ß Pacific Northwest Golf Association Championship – 2017, won overall medalist in stroke play and won the match play championship flight (while pregnant)

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ß B.C. Indigenous Golf Championship – 2023 champion and chairperson for the inaugural event

ß Represented Team B.C. multiple times at Pacific Northwest Cup matches and Canadian Nationals After graduating from the University of New Mexico, Christina returned to Vancouver Island to attend law school at the University of Victoria. She worked as a summer student for three years at Taylor Granitto in Duncan for Don Taylor, Q.C. Christina learned a lot from Don, who was a consummate professional, great leader and mentor. After law school, Christina returned to her hometown of Port Alberni and articled at the firm Badovinac, Scoffield and Mosley. Her principal, Eric Mosley, was a great example of professionalism and conscientiousness. Following her articles, Christina stayed on at Badovinac, Scoffield and Mosley for one year practising family law and criminal defence. She was drawn to criminal practice and successfully competed for a position in the Port Alberni Crown office in 2010. As part of a four-Crown office, Christina learned quickly and carried a heavy caseload. She handled all manner of prosecutions and stood out for her work on intimate-partner violence and sexual assault cases. Early in her career with the Crown, she was given the responsibility of the West Coast circuit courts in Ucluelet and Tofino. Running prosecutions without the safety net of senior colleagues nearby, Christina demonstrated the ability to make decisions independently and fairly. She took on a mentorship role with junior Crown and always took new Crown on a tour of Port Alberni. She headed many community committees, including domestic violence and mental health. For many years she was the president of the Port Alberni Bar Association. Christina was everything one could ask for in a colleague: loyal, dependable and hard-working. She has a great sense of humour, often dressing up for Halloween as her colleagues, including one year she came to the office as the spitting image of her Regional Crown counsel John Labossiere. Golf has honed her ability to remain calm under pressure. Despite her many successes on and off the golf course, Christina does not take herself too seriously. Whether it is her questionable driving “skills”, her many faceplants while learning to ski (poorly), or the humiliating loss to a colleague in a putting contest in the Port Alberni law library (for which she was never granted a rematch and will forever be 0–1), she has the ability to laugh at herself. These are all qualities that make a good judge, but in the opinion of the writers, her humility may be the most important because the institution is more important than any one person.

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Sadly, Mark never saw his daughter finish law school. He lost a battle with esophageal cancer on November 22, 2007, during her final year. He would be incredibly proud of everything she has accomplished. Like Mark did, Christina puts her family above everything else. Her boys Jameson (born in 2014) and Thatcher (born in 2017), and her wife Rhonda Simpson (whom she married in 2023), are her world. Her office door was always proudly adorned with her boys’ artwork. She acquired her father’s old boat last year, and she and Rhonda are teaching the boys the finer points of fishing in the salmon capital of the world (they may want to look elsewhere for lessons on how to back up with a trailer). The Crown and support staff in Port Alberni will miss Christina’s presence in the office dearly. She was not just a colleague or a friend, she was family (as such, we feel comfortable declaring that the annual Christmas party will continue to be at her house). ЖЖЖ

The Honourable Judge Micah Rankin

The fact that Micah Rankin acquired the legal skills and acumen that make him particularly well suited for his new role as a Provincial Court judge should come as a surprise to no one since the art of advocacy appears to have been built into his DNA. There is no doubt he is descended from a family of storied lawyers: his grandfather, Harry, was a legendary defence lawyer and a force of nature in the courtroom; his father, Phil, was a respected and skillful defence lawyer; and his mother, Ellen, was accomplished civil litigation counsel. When Phil and Ellen met as first-year students at UVic’s then brand-new law school, the genetic die was truly cast. Micah was born in his parents’ third year, and in the progressive spirit of Victoria in those days, would sometimes attend class with his mother, a fact of which he was reminded when, many years later, he returned to UVic Law classes as a student in his own right. His parents eventually started their own law firm, Rankin & Bond, and practised together for many years. In the early ’80s, their law office was situated in the building immediately beside the building where Harry’s firm,

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Rankin & Co., was located. In time, Micah would be lucky enough to have the opportunity to do trials with both his mom and his dad. Fortunately, while his legal savvy truly appears to have had its roots in his DNA, it turns out that there is one seam where the genetic markers did not knit together—and that is in Micah’s use of language; in that regard, he appears to have leaned heavily into the distaff side of the family culture and thus never learned to cuss with the fluency and precision mastered by Harry and Phil. Micah grew up as one of three siblings in East Vancouver in the same Commercial Drive area where his father and grandfather had grown up and where the family had longstanding ties. The neighbourhood at that time was diverse; Micah’s social milieu was distinctly working class, and he learned to be at home in the pool halls and diners of the Downtown Eastside. His early work history was part Huck Finn and part Hemingway: his first job was as a toy soldier in an Oakridge Mall Christmas display; he worked in restaurants, including a stint at Brothers, where he was expected to dress up as a medieval monk while serving tourists. Such work might have contributed to Micah’s well-known, impeccable sartorial style. But not all of Micah’s employment background was cosplay: he honed his stamina in true West Coast fashion, first as a deckhand on a small salmon troller, spending weeks at sea and experiencing the glories of the coast and its wildlife. He brought that work ethic to the canning industry, a rite of passage for Vancouver’s working-class kids in the ’80s and ’90s. The shifts were long, typically running from 6 p.m. to 6 a.m., and it was not uncommon to head down to East Hastings afterward for breakfast and a beer at Funky Winkerbeans. Growing up in the Rankin household also meant deep exposure to politics and philosophy, and the progressive activism of his family taught him that some of his time must be dedicated to service; Micah volunteered with Greenpeace and Larry Campbell’s mayoral campaign. Micah’s education had begun at Queen Victoria Elementary, just a block off Commercial Drive. He also attended Laura Secord and what was then Matthew Begbie Elementary. In grade 6, he decided to enter French immersion as part of one of the early school programs in East Vancouver, but in high school that meant a daily commute across the city to Kitsilano Secondary School. This decision was to have a profound impact on his life in many ways. Micah describes himself as an indifferent student who found high school difficult. But that began to change in his post-secondary education, first at Langara College, then transferring to Simon Fraser University where he obtained a bachelor of arts degree in political science. During his final

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semester at Simon Fraser, Micah arranged to do a four-month exchange at the Paris campus of Sciences Po, a highly regarded French university. He attended the campus in the heart of the historic Saint-Germain-des-Prés neighbourhood in the 7th arrondissement. After completing his exchange, he decided to stay on for another four-month term in order to complete a Diplôme d’études internationales. It was during this International Studies program that Micah first met Yael La Rose, a young woman from Canada who was also attending the school. Their friendship would rekindle years later in Vancouver, as we shall see. After leaving Sciences Po, Micah travelled to Strasbourg where he completed a six-week course in international human rights law. It was after finishing that course that he decided to go to law school; the University of Victoria seemed a natural choice and would allow him to focus on his education away from the distractions of his boyhood Vancouver home. Micah enrolled in law school at the University of Victoria in 2003 at the age of 25; he was not technically a mature student but had accumulated a considerable amount of work and life experience, and in law school he truly thrived. He performed well academically and received a number of awards and opportunities to further explore. After his first year, he lived for several months in Cairo, working as an intern in the regional office of the United Nations High Commissioner for Refugees. There he assisted in the screening of refugee applicants from across Africa, including Eritrea, Somalia, Sudan and Ethiopia. Micah completed his J.D. at UVic in 2006, then returned to Vancouver where his talents had caught the attention of some of the leading lights of the litigation bar: alongside his good friend Brent Olthuis, he articled with Joe Arvay, Q.C., one of Canada’s leading constitutional lawyers, then did a clerkship at the B.C. Court of Appeal, where he had the good fortune to serve as clerk to the Honourable Cathy Ryan. That experience settled Micah’s ambitions towards appellate advocacy, which seemed to combine his innate drive as an advocate with his strong academic and intellectual bent. Micah’s early career path was not entirely linear. Following his articles and clerkship, Micah joined Hunter Litigation Chambers, where he practised civil litigation for three years and worked with leading members of the bar, including, now, the Honourable John Hunter, K.C., Bill Berardino, K.C., Justice David Harris, the Honourable Peter Voith, and Ken McEwan, K.C., along with a group of associates who have since gone on to prominent roles in the legal profession and judiciary. It was in Vancouver, in 2008, where Micah encountered again the young woman whom he had first met in Paris in 2001. In the interim, Yael La Rose

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had begun to build a career with NATO and was stopping briefly in Vancouver on her way to NATO headquarters in Virginia. She did, in fact, leave for Virginia, but the romance had taken hold. Micah had always been drawn to the academic side of law, and in 2010 he decided to pursue a master’s degree at the University of Toronto. Somehow, he persuaded a reluctant Yael to accompany him, and he and Yael lived in Toronto for a year. The pair then returned to British Columbia, where Micah was one of the very first faculty hand-picked by founding Dean Christopher Axworthy, K.C., at the Thompson Rivers University Faculty of Law. The school opened its doors in the fall of 2011, and Micah proved himself an effective and popular teacher of first-year criminal law, as well as advanced courses in advocacy and other topics. Micah truly loved the energy of the faculty and its students. He was intensely interested in the science of advocacy and did research and writing on the intersection between legal practice and unconscious psychology. Yael and Micah were married in 2012 in a small ceremony surrounded by their parents, family and friends at the historic Lower Nicola Chapel. Soon afterward, their two sons, Lev and Ezra, were born in Kamloops. The family would live happily in that Interior city until moving to Victoria, which is now their permanent home. During his time in Kamloops, Micah continued his courtroom practice and worked for four years as associate counsel with the Jensen Law Group, dealing primarily with criminal appeals and Charter litigation. And—perhaps inevitably—the pull of courtroom practice became overpowering, and Micah decided that his true calling was not in the classroom but in the courts. Beginning in 2011, he started working as an ad hoc Crown prosecutor, assisting Peter J. Wilson, Q.C., with some special prosecutions. This work included a number of trials and appeals related to prosecutions for polygamy and for the removal of children from Canada and involved several lengthy trials in Cranbrook. Micah’s ad hoc status became official when he joined the Attorney General in 2018. For the first two years, he worked as part of the Constitutional and Administrative Law Group in the Legal Services Branch. He then joined Criminal Appeals and Special Prosecutions, where he remained until his appointment to the Provincial Court. Micah and Yael have well managed the delicate balancing of demanding careers with dedication to each other and their children. They have also maintained their love of travel, but now see the world as a family, inculcating Lev and Ezra with the values that they were taught: immersing themselves among people of all backgrounds and environments. These same things, among his many other assets, are sure to make Micah an outstanding judge.

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“A State of Clarity” by Deniz Altug, Acrylic on Canvas 48'' x 48'', 2026 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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NEW BOOKS AND MEDIA By R.C. Tino Bella*

Trading Fate: How a Little-Known Company Stopped British Columbia from Becoming an American State, by Graeme Menzies, Heritage House Publishing Company Ltd., 2025, 258 pages. Reviewed by Anne Giardini, K.C.

If we were not gripped by Canadian history in high school, and many of us were not, it was at least in part because the textbooks did not treat our history with a sense of excitement and our teachers failed to draw sufficient parallels between the past and everyday life in modern day Canada, where we were biding our time, waiting for life, as we believed, to begin. In Ontario, where I grew up, there must have been some coverage of British Columbia’s history, but national (that is to say, Ontario) narratives dominated, with British Columbia appearing mainly in passing, such as when British Columbia joined Confederation (1871), the arrival of the railway in Port Moody (1886), resource extraction (ongoing), and some glancing references to Indigenous topics making no distinction among nations or tribes or interests. I certainly would have paid more attention if we had been provided with books such as Graeme Menzies’ recent and timely book Trading Fate: How a Little-Known Company Stopped British Columbia from Becoming an American State. In his preface, Menzies comments that he had undertaken the book without having foreseen the recent U.S. threats to make Canada a 51st state; instead he wanted “to present a west coast perspective of the Canadian origin story”. His perspective throughout this action-packed account is entertaining and informative, history at its best, detailed and lively, discursive and focused. “We cannot understand how British Columbia was saved, and Canada stopped, from becoming a part of the United States of America without first

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having some appreciation for how absurd that idea initially was” is how Menzies begins, going on to show how puny and damaged the United States was at the end of the Revolutionary War in 1783, and thus how unlikely it was to pose a threat to its neighbour to the north. Trading Fate is divided into four parts: the 1700s; the earliest known encounters between Europeans and the Indigenous people of the west coast; the 1800s; and then an imaginative speculation into how British Columbia’s history might have been different (very) but for the existence of the King George’s Sound Company. King George’s Sound is what is today known as Nootka Sound, an important inlet on the central west coast of Vancouver Island. My AI engine proclaims Nootka Sound to be “remote” but does not specify what it is perceived to be remote from. It was the ancient home of the Nuu-chah-nulth people. In 1775, when the founding fathers were busy signing the Declaration of Independence, Captain James Cook was getting ready for his third voyage in an attempt to discover the Northwest Passage, an expedition that brought him to the west coast and that ended with his death in Hawaii in 1779. King George was on the throne in the middle of a long reign in 1785, the year of the creation of the King George’s Sound Company by a consortium led by Richard Cadman Etches. The partners secured licences from the South Sea Company and the East India Company to engage in fur trade and to sell goods in China. In fact, the area was a crossroads of imperial and want-tobe imperial adventurers, traders and rogues including men (and a few women) and interests from Spain, Portugal, Russia, Britain, Japan and the United States, and a network of shifting alliances. The Spanish claimed ownership to the west coast pursuant to its early presence in the area and a 1493 papal bull issued by Pope Alexander VI, declaring that the west coast of America (and the entire Western Hemisphere) belonged to Spain, and a later treaty. In 1789 the Spanish wielded this authority, seizing several British merchant ships at Nootka Sound. Britain demanded compensation and threatened war. Spain needed France to help in any fight, but France could not be distracted from the revolution at home and Louis XVI was in no position to commit his country to a remote war; he lost his head in 1793. Sanity of a kind prevailed. Negotiations led to a series of Nootka conventions allowing both nations to trade, and Captain George Vancouver was given the task of putting them into action. As Menzies summarizes, the conventions “effectively put an end to Spain’s centuries-old claim of exclusive sovereignty over the west coast of America, and marked the beginning of the end of its empire. Britain had achieved a remarkable thing: it prevented Spain from colonizing the entire coast of the American continent north of

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California without firing a shot or occupying it themselves.” This was achieved under the watch and with shrewd interventions by Maquinna, then the paramount hereditary chief of the Nuu-chah-nulth in Nootka Sound. The United States began to push westward seeking to establish a nation “from sea to shining sea”. In the early 1800s, American John Jacob Astor sent his ship The Tonquin to establish a fur-trading outpost, Fort Astoria, at the entrance to the Columbia River, with a goal of controlling the maritime fur trade. June 1811, The Tonquin was destroyed by the Nuu-chah-nulth at Clayoquot Sound. Shortly after, during the war of 1812, Fort Astoria was sold to the British. By 1867, U.S. territory bounded modern-day British Columbia to the south and north and it was, in Menzies’ phrase, faced with two suitors, the United States and the rest of Canada. It is at this point that Menzies draws the threads of the various stories together, coming to surprising and satisfying conclusions. He then goes back and lays out a “counterfactual” account of the years 1821 to 1870, what could very easily have been. This summary cannot do justice to Menzies’s frequent excursions into lesser-storied events and protagonists, including among them Indigenous leaders, women, slaves, people from China, and people from the Hawaiian Islands. The book is well worth reading for its retelling of both the larger historical events and the smaller details that are often at the heart of nationmaking.

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“Urban Memories” by James Wiens, Acrylic on Canvas 36'' x 36'', 2026 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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LETTERS TO THE EDITOR By R.C. Tino Bella*

Dear Editor, Re: Joanne Lysyk, “Legal Maxims: On Their Source, Nature, Use and Misuse – Part I”, (2026) 84 Advocate 533 I found Joanne Lysyk’s article on legal maxims fascinating, engaging and an excellent read. It was also very informative, and with the right reflection, I thought the article offered thoughtful inspiration for counsel. One of the many lessons I took from the article was that the maxims express, I think, the “gut feelings” that judges have when they hear the case. While we may ensure that the proper causes of actions are pled, developed and proven in court, it seems to me that the “themes” and “theories” of many cases might find their shorthands in those maxims or where counsel, at the beginning of cases,

could use those maxims as inspirations for thinking of their themes. I would be very grateful if you could pass on my heartfelt thanks to Ms. Lysyk and my eagerness to read Part II! Chilwin Chang Vancouver Dear Editor, Re: “Grumble” (2026) 84 Advocate 613; “Cowichan Tribes v. Canada (Attorney General) – Misinformation, Fearmongering and the Erosion of the Public’s Trust in the Courts” (2026) 84 Advocate 99; “Entre Nous” (2021) 79 Advocate 169 I write with respect to Mr. Berry’s grumble. I have difficulty reconciling Mr. Berry’s position respecting civility, substantive debate, and the Advocate’s publication decisions.

* Letters to the editor may be e-mailed to <mbain@hhbg.ca>. Letters published do not necessarily reflect the views of the Advocate or its staff. We encourage a diversity of voices and views in our pages.

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Mr. Berry explicitly opines that the Cowichan piece lacked civility. I fail to see that. I disagree with much of that article’s argument on the legal impact (or lack thereof in that author’s opinion) of the controversial Cowichan decision, but I do not see incivility. Mr. Berry, on the other hand, proceeds to levy ad hominem attacks of his own personally against the author; he also refuses to substantively argue the underlying points of the article. That leaves me with the impression he doesn’t actually believe in civility in discourse. In that case, why does he try to use that as a basis of critique? Mr. Berry raises the debate on the Advocate’s decision a few years ago to not publish a critical piece on the court directive respecting gender pronouns. Personally, I concur that the article ought to have been published, not because I agree with its argument, but that it ought to be substantively debated. I expect Mr. Berry would concur

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with that sentiment, but I have a hard time reconciling that with his overall grumble about the Advocate choosing to publish the piece on the Cowichan decision. Or does he simply believe that the Advocate should only publish pieces that he personally agrees with? I sympathize with the editorial board that they feel they are damned if they do and condemned if they don’t (see “Entre Nous” (2021) 79 Advocate 169). Personally, I do not think they are ever damned if they do. The Advocate is a platform for the profession to discuss issues facing the profession. For contentious pieces that come across the editorial board’s desk: those are even more important to publish. Please maintain the courage to do so, otherwise this publication risks devolving into banalities unworthy of the reader’s time.

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Tyler Holte Fort St. John, B.C.

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LEGAL ANECDOTES AND MISCELLANEA By Nathan Illsley*

“[I]t would almost take a line of packet ships, running regular between here, and San Francisco to supply this Island with grog, so great a thirst prevails amongst its inhabitants.” —Robert Melrose, 1854, on the popularity of liquor on Vancouver Island

SOME ANECDOTES ABOUT THE SALE AND CONSUMPTION OF LIQUOR IN BRITISH COLUMBIA British Columbia has a complicated past when it comes to liquor. From its first regulations in 1854, which banned the sale of alcohol to Indigenous people (a ban which remained in place for over 100 years), to its deep resistance of the temperance movement, to the corruption resulting in the failed prohibition of the early 1920s, British Columbia has some of the most interesting and unique tales when it comes to the sale (and consumption) of alcohol. Colonialist Beginnings In the 1800s, there were few laws respecting the sale of liquor in British Columbia. Those laws that did exist, which aimed to ban the sale of liquor to Indigenous people, were primarily based on the harmful and racist myth of “firewater”, among other things.1 Originally enacted on the Colony of Vancouver Island, following its amalgamation with the Colony of British Columbia in 1866, the prohibition of the sale of liquor to Indigenous people

* Nathan Illsley is a litigation associate at Farris LLP.

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was established throughout what would become the province. In 1867, the “Indian Liquor Ordinance, 1867” was enacted which set out harsh penalties for offences, including a fine of $500 (over $11,000 in today’s equivalent) for first offences and twelve months imprisonment with hard labour for second offences. If the offender was under the age of 16 years old, a judge could order that they be “once or twice privately whipped, in lieu of or in addition to the aforesaid penalties”.2 Gassy Jack, The Great Fire of Vancouver, and the Birth of a Police Department The story goes that a man named John Deighton, originally from England, paddled into Burrard Inlet and up to the Hastings sawmill in 1867. He had a barrel of whiskey with him and offered the sawmill workers a drink if they built him a saloon. Deighton, who had originally come to the area in hopes of making it big during the gold rush, had previously been the owner of a bar in New Westminster called the “Globe Saloon”. However, when Deighton was out of town one weekend, he left his saloon in the hands of an old shipmate, who happened to be from the United States, and this weekend happened to be over July 4. Deighton returned to the Globe Saloon to find its liquor and financial supply completely depleted after celebrations got out of hand. Deighton, known for his long and “gassy” monologues, developed a nickname: “Gassy Jack”. His newly built saloon became the go-to place in the settlement of Granville, whose primary residents had become transient unmarried men working at the Hastings Mill. After a few years, Gassy Jack purchased a lot on the corner of Carrall and Water Street in Granville and built a new hotel called “Deighton House” which, of course, had a bar. Gassy Jack was credited with establishing the nightlife in Vancouver, even prior to Vancouver’s incorporation in 1886, and he became synonymous with the area eventually taking over his (nick)name-sake: Gastown. Shortly following Vancouver’s incorporation in April 1886, Deighton House, along with nearly all other buildings in the area, were destroyed in the Great Vancouver Fire of June 1886. In an effort to save what was important to them, and despite the chaos, some men were seen throwing barrels of whiskey into the water to save them from the fire. Remarkably, a building right in the middle of the fire stood unscathed: The Regina Hotel, which naturally, also had a bar. It is reported that exhausted from fighting the fire,3 or perhaps taking advantage of an ill-fated situation (according to a New York Times article4), groups of men helped themselves to the unattended liquor in the Regina Hotel: Many a one was seen staggering along the streets with a keg of beer on his shoulder and as many bottles of liquor as he could appropriate. Men

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were seen sitting completely hemmed in by the fire and apparently oblivious to their surroundings drinking liquor.5

At the time of the fire, Vancouver had one police officer, Chief Constable John Stewart. The morning following the fire, Mayor Malcolm Alexander MacLean had concerns regarding the possibility of further looting. These concerns were raised when Mayor MacLean spotted a group of men preparing to paddle out into the water to gather the whiskey barrels floating in the inlet.6 In an effort to maintain control and avoid further issues, Mayor MacLean appointed three able-bodied men, Jackson Abray, V.W. Haywood and John McLaren, to assist Stewart. It is reported that Mayor MacLean turned to Abray and stated: Abray—I’m swearing you in as Special Constable. Your first duty is to retrieve those barrels.7

At this moment, these men became the first Vancouver Police officers. Following the fire, Stewart, Abray, Haywood and McLaren worked out of a tent while Vancouver was rebuilt.8 Early Attempts at Prohibition and the Habitual Drunkards Act Public drunkenness and debauchery were not isolated to Vancouver by any means. Such conduct ran rampant throughout the province of British Columbia, and throughout all of Canada. In the second half of the 19th century, the vast consumption of alcohol was a common part of daily life in Canada. One historian notes that “whiskey was served to each member of the house-hold to enable one to do hardy work.”9 It was not uncommon for men to drink throughout the work day, following which they would head to the local tavern for a few more.10 While the west ran wild, temperance movements started creeping into other parts of Canada. Prior to Confederation, some legislative steps toward prohibition were taken including the enactment of the Dunkin Act of 1864, which allowed local municipalities in the Province of Canada to implement temperance upon an approval by plebiscite. Following Confederation, the Parliament of Canada enacted the Scott Act (also known as the Canada Temperance Act) in 1878. The Scott Act provided a national framework for municipalities to implement prohibition via plebiscite. Early adopters of the Scott Act were primarily located in the Maritime provinces, with Fredericton, New Brunswick being the first municipality in Canada to implement the law in 1878 (the law stayed in place until province-wide prohibition in 1916, despite four unsuccessful attempts to repeal the law).11 At one time or another, the number of municipalities that adopted the Scott Act varied per province with the following peaks: Ontario

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(30); Nova Scotia (13); New Brunswick (11); Quebec (9); Prince Edward Island (4); and Manitoba (2).12 Notably, no municipality in British Columbia ever adopted the Scott Act. While the statistics regarding the consumption of alcohol are difficult to determine accurately due to poor record keeping, and widespread home manufacturing, at the time of the enactment of the Scott Act, British Columbians led the country in consumption of alcohol, measured in gallons per capita in all of spirits (1.480 gallons), beer (7.145 gallons) and wine (0.466 gallons).13 The numbers doubled (or quadrupled, in the case of wine) the national averages for spirits (0.720 gallons), beer (3.598 gallons) and wine (0.103 gallons).14 In the years following the introduction of the Scott Act, not only did British Columbia reject attempts at prohibition, but in fact, increased its rate of alcohol consumption.15 The year following the Great Fire of Vancouver, in 1887, British Columbia had its first taste of prohibition legislation, when the legislature passed the Habitual Drunkards Act, 1887. Under the Habitual Drunkards Act, the spouse of any person alleged to be “an habitual drunkard” or any peace officer after due inquiry, could file a petition in the Supreme Court of British Columbia “praying that such a drunkard may be interdicted.”16 Any person who was proven to be a habitual drunkard faced severe penalties, including the loss of the right to manage and dispose of any real or personal property; such persons could also be “interdicted and declared incompetent to transact any business whatever.”17 Generally, this Act permitted the wives of drunkards to obtain legal title to their husbands’ property.18 It is unclear how many people were ever deemed to be habitual drunkards in British Columbia, but one source cites the number to be somewhere between 4,500 and 5,000 people.19 The Habitual Drunkards Act, eventually renamed the Drunkards Act, was not repealed until 1968.20 Pre-Prohibition Paramountcy Problems Despite the growing pressures from mostly religious-based temperance organizations, British Columbians continued to enjoy their drink, both on the job and afterward. For example, in 1888, after 50 years of service, the first steamship to be introduced to the west coast, the SS Beaver, ran aground at Prospect Point in Stanley Park. While conflicting reports exist as to exactly how or why the ship wrecked, Vancouver archivist James Matthews suggests that the captain and crew “were all drunk the night the Beaver went on the rocks.”21 That said, just prior to the turn of the century, during soon-to-be Prime Minister Wilfrid Laurier’s election campaign, he promised to provide an opportunity for Canadians to register their opinions with respect to prohi-

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bition. Following Laurier’s election in July 1898, Canada held its first national referendum in September 1898. The question was simple: Are you in favour of the passing of an Act prohibiting the importation, manufacture or sale of spirits, wine, ale, beer, cider and all other alcoholic liquors for use as beverages?22

A tougher question was put to the courts: Which level of government in Canada had jurisdiction to regulate the sale, consumption and production of alcohol? This issue had been debated in three provinces leading up to the 1898 referendum: courts in Nova Scotia and Ontario had held that the province had jurisdiction, meanwhile the New Brunswick Supreme Court found the opposite conclusion. Early decisions from both the newly-formed Supreme Court of Canada and the Privy Council marked “initial victory for the federal government”. For example, in Russell v. The Queen23 (1882), the Privy Council decided that as the power to regulate alcohol could not be found under s. 92 of the Constitution Act, 1867, it must necessarily fall under the federal government’s peace, order and good government power (“POGG”). However, just one year later, the Privy Council completely changed course. In Hodge v. The Queen24 (1883), the Privy Council introduced the double-aspect doctrine, finding that the provinces had an ability to regulate on issues respecting maintaining local order. Two years after that, the federal powers were stripped back even further in the McCarthy Act Reference,25 which struck down a federal attempt to regulate liquor licences. As the Honourable Justice Fish later put it, “the Supreme Court and Privy Council struck down the Act, without deigning to give reasons.”26 The final death knell was dealt to the feds’ push for exclusive jurisdiction in Local Prohibition Case (1896). In this decision, the Privy Council was asked to determine the vires of the Scott Act. The Privy Council determined that the provinces had the power to prohibit trade, which was based on the jurisdiction over property and civil rights (or over matters of a local nature—the decision does not make it clear which one, but does state it is not both), while the federal power to enact prohibition fell under POGG. Therefore, key to this determination is the finding that the double aspect doctrine applies, subject to the doctrine of paramountcy.27 The courts set the stage for the 1898 federal referendum, which was an official, but non-binding plebiscite. The results were extremely close: fifty-one per cent Yes / forty-nine per cent No. The provincial results were widely varied with Quebec voting only nineteen per cent Yes, while PEI voted ninetytwo per cent Yes. Perhaps somewhat surprisingly, British Columbians seemed to (slightly) favour prohibition, voting fifty-five per cent Yes.28

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Ultimately, the 1898 federal referendum led to nothing. The turnout for the referendum was only forty-four per cent, leading Prime Minister Laurier to decide not to act, arguing that less than one quarter of the population (fifty-one per cent of forty-four per cent) was in favour of prohibition.29 Temperance Movement in British Columbia The temperance movement that had gained traction in nearly all other provinces in Canada (with Quebec being the only province arguably more anti-prohibitionist than British Columbia), did not have the same results in British Columbia. By 1907, every province, including Quebec, had some kind of local option law which gave municipalities the option to enact prohibition (i.e., provincial versions of the Scott Act), except British Columbia.30 However, the local options movement in British Columbia was growing, particularly because of the conditions surrounding popular bars. For example, the following is the first part of an article entitled “Public Nuisance” appeared in the February 23, 1908 edition of the Daily Colonist: We have again to refer to the suburban saloons. Some of these are fast becoming public nuisances. They depreciate the value of all property in their neighbourhood. They are, in some instances, the scenes of orgies, of which at all hours of the day and night and sometimes even long after daylight residents along the roads leading to them have only too painful evidence.31

In November 1908, temperance leaders from all of the province converged on Vancouver and formed the Local Option League (“LOL”), which centered its temperance messages around citizenship, not religious affiliation, like many of large temperance groups extra-provincially. The messaging worked, and soon the LOL became hard to ignore. On October 19, 1909, Premier McBride announced that a plebiscite on local option legislation would take place in November of that year.32 However, to the prohibitionists’ dismay, the plebiscite was a calamity of errors. The Province refused to explain whether the plebiscite would be binding or even whether individuals were actually voting for prohibition in their municipality. The voting procedures were also poor, with “hundreds” of ballots being lost, and an “unusually high number of disqualified ballots”.33 There is no permanent record of the results of the plebiscite, but needless to say, the vote failed. The temperance movement waned in British Columbia following the repeated failures to gain traction in the province. That was, until the mid1910s. Albert John Hiebert, author of Prohibition in British Columbia, notes that “British Columbians responded to the immediate demands of World War I with zeal and dedication and nearly 56,000 of them joined the Canadian forces.”,34 Thoughts toward prohibition changed as money spent on

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liquor could be put towards better purposes. “The old moral temperance argument of the past was being replaced by an argument couched in economic and patriotic terms which reasonably demanded prohibition for only the duration of the war.”35 … and Finally, Prohibition (Sort of) With a new purpose, temperance groups like the People’s Prohibition Association (“PPA”) gained momentum. The PPA was led by Walter C. Findlay, a well-known businessman in Vancouver at the time. In 1915, Findlay, with the rest of the PPA, continued to mount pressure on Premier McBride to enact prohibition legislation. McBride insisted that the provincial government was opposed to direct legislation. That was until in late 1915, when Premier McBride resigned. The new premier, W.J. Bowser, initially held the same party line as McBride. However, in early 1916, following the defeat of two Conservative candidates, both of whom the PPA openly opposed, in a by-election, Premier Bowser completely reversed positions. Bowser promised a prohibition referendum, not just a plebiscite, would take place on election day in September 1916. The docket in fact contained two referendums, the other pertaining to women’s suffrage. With momentum on their side, the PPA took no chances with the Conservative government and outwardly threw their support behind pro-prohibitionist leader of the Liberal party, Harlan Brewster. The prohibitionists tied themselves to the progressive reform, and the Conservatives’ reported campaign slogan “No change during the War” did not fit with this sentiment.36 The province, evidently, had a taste for change and the Liberals defeated the Conservatives, winning a total of 39 out of 47 seats. The prohibition referendum and the women’s suffrage referendum also carried by wide margins. With that, the Prohibition Act, which had been introduced in May 1916, was set to go into effect on July 1, 1917. This date was eventually pushed to October 1, 1917, when British Columbia became one of the last provinces to officially enact prohibition. Around this time, British Columbia’s attorney general J.W. Farris (of what is now Farris LLP), on the recommendation of prohibitionist advocates, appointed PPA leader Walter Findlay as the province’s first Prohibition Commissioner. The B.C. Prohibition Act, in large part, was aimed at controlling the flow of liquor, rather than the drinking of it. However, by April 1, 1918, a federal order-in-council provided for a nation-wide ban on the importation and manufacturing of alcohol. Hiebert describes the combination of these enactments as having “greatly curtailed but did not eliminate the manufacturing and retailing of beverages with an alcoholic content”. The introduction of “near-beers” with an alcohol percentage of less than 2.5 per cent garnered

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some popularity, but other loopholes were soon exploited. For example, pharmacists could provide liquor to persons who obtained a prescription from a medical doctor. Doctors in the province began selling such prescriptions for about $2 each (it was reported that one doctor issued 4,100 of these prescriptions in a single month).37 Hiebert writes: “During 1919, liquor was apparently necessary for the cure of 181,350 individual cases of illness in Vancouver alone.” On the urging of Walter Findlay, Attorney General Farris recommended some amendments to the Prohibition Act limiting the number of prescriptions doctors could issue and pharmacists could dispense. The larger and even more profitable scheme was run by the bootleggers. Bootlegging had become a lucrative business in the early 1920s. The brewing, distilling and manufacturing of alcohol never truly stopped despite prohibition and the bootleggers were making so much money that bribery and corruption became inevitable. In fact, just a year following his appointment, it was discovered that one of British Columbia’s most vocal prohibitionists was headed to the hoosegow for rum running. On December 12, 1918, the Vancouver Daily Sun headline read “Prohibition Commissioner Findlay Arrested Last Night: Charged with Illegally Importing Liquor Into the Province – Car of Rye Whiskey Missing”. Initially, Findlay pled guilty to illegally importing liquor and was fined $1,000, but following public outcry, a royal commission was established that eventually recommended harsher penalties. Findlay was found guilty of the theft of 75 cases of liquor and sentenced to two years in jail. The End (or Just the Beginning) of Prohibition With the Great War ending in November 1918, the federal order-in-council expiring in December 1919, the embarrassment suffered by prohibitionists in the Findlay fiasco, and soldiers coming home from Europe, societal attitudes shifted and prohibition fell out of popularity. The pillar of wartime patriotism had fallen and British Columbians yearned for the drink. In October 1920, through a referendum, British Columbians voted overwhelmingly to repeal the Prohibition Act and replace it with a system of government-controlled alcohol sales. British Columbia became the second province to eliminate prohibition when the new liquor legislation came into force on June 15, 1921 (Quebec being the first (May 1, 1921)). The Government Liquor Act of 1921 (“GLA”) introduced a reformed system of purchasing alcohol in British Columbia.38 It was on that same day, June 15, 1921, that the first nine government liquor stores opened their doors. Those initial liquor stores are a far cry from the BCLs we know today; back then the windows were painted a dark green to prevent passersby from seeing the liquor in store.39 The GLA established that these stores could not be

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open for more than eight hours a day and could not be open later than 8 p.m.40 The liquor stores could also not be open on any election day, whether federal, provincial or municipal.41 Once inside a liquor store, patrons were required to show the shopkeeper their “permit”, which had to be purchased on application to the Liquor Control Board for $5 annually (or a one-time purchase of 50 cents).42 All liquor products were stored behind the counters, only accessible to the shopkeeper, which is a custom that stayed in place until 1962 with the introduction of the first “self-service” store in Burnaby.43 Although British Columbia had a newly established liquor regime by the middle of 1921, prohibition in the United States was not repealed until over a decade later. At the height of the Great Depression in 1933, American lawmakers repealed prohibition in an attempt to stimulate the economy by providing employment to those out of work.44 That said, as was the case in British Columbia, prohibition had not stopped the consumption and manufacturing of liquor, but rather put it underground. The repeal of prohibition in the United States was not celebrated by all, however, particularly those who had made a fortune illegally selling booze manufactured in Canada. Such was the case for Vancouver’s most infamous rum-runners, the Reifel family. George, and his son Henry Reifel, owners of several local breweries in and around the lower mainland, also owned a large five-masted schooner known as Malahat, or to some as The Queen of Rum Row.45 Anchored in international waters, syndicates of smaller fishing boats would transfer liquor manufactured in British Columbia onto the Malahat, which would then sail the precious cargo down to “Rum Rows” near enough to ports in Northern California, but still far enough away to avoid the authority of the U.S. Coast Guard. Under the cover of night, smaller vessels would transport the liquor from the Malahat to the United States for distribution.46 The Vancouver Maritime Museum has said that the Malahat delivered more contraband liquor than any other ship. The Reifels, as beneficiaries of this illicit activity, were made enormously wealthy, and financed the construction of many of Vancouver’s landmark entertainment venues including the Commodore Ballroom and Vogue Theatre. The Reifels also built and lived in one of Vancouver’s most iconic mansions: Casa Mia, a 20,000+ sq. ft. home with a built-in ballroom.47 The fun did not last forever for the Reifels, however, as George and Henry Reifel in 1934 were arrested in Seattle and charged with smuggling $10 million in liquor into the United States over the prior 12 years. Facing severe penalties, George and Henry Reifel posted $200,000 in bail, returned to Vancouver, and negotiated a settlement with U.S. authorities, along with a

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$500,000 fine.48 The Reifel family name that was once so synonymous with rum-running has since become notably linked to a migratory bird sanctuary in Delta, British Columbia. The land, which was originally purchased by George Reifel as a family retreat, was eventually gifted to the Crown under the condition that it continue to bear the name George C. Reifel.49 ENDNOTES 1. Corbin William Golding, “A Prairie Polyphemus: The Firewater Myth in a Canadian Legal Context”, 2023 CanLIIDocs 1200 2. Indian Liquor Ordinance, 1867, ss I–V. 3. Lisa Smith, Vancouver Is Ashes: The Great Fire of 1886 (Ronsdale Press, 2014) at 66. 4. “A New City Swept Away”, New York Times (16 June 1886). 5. Ibid. 6. Smith, supra note 3 at 87. 7. Ibid. 8. Vancouver Police Department Website, “John Stewart”. 9. WW Peck, “Napanee Beaver”, in A Short History of the Liquor Traffic (Canadian Temperance Federation, nd) at 5, quoted in Graeme Decarie, “Something Old, Something New … Aspects of Prohibitionism in Ontario in the 1890s”, in Oliver Mowat’s Ontario (Toronto: Macmillan, 1972) at 156–57. 10. The Honourable Morris J Fish, “The Effect of Alcohol on the Canadian Constitution … Seriously”, FR Scott Lecture (McGill Law Journal, 2011) at 194–95. 11. RE Spence, Prohibition in Canada, Ontario Branch of the Dominion Alliance (Toronto: 1919) at 127. 12. Re The Canada Temperance Act, 1939 CanLII 58 (Ont CA). 13. Benoit Dostie & Ruth Dupre, “‘The People’s Will’: Canadians and the 1898 Referendum on Alcohol Prohibition”, in Explorations in Economic History (Vol 49, 2012) at 498–15. 14. Ibid. 15. Reginald G Smart & Alan C Ogborne, “Prohibition Movements” in Northern Spirits: Drinking in Canada Then and Now (Toronto: Addition Research Foundation, 1986) at 44–45. 16. Habitual Drunkards Act, SBC 1887, c 11. 17. Ibid. 18. Fish, supra note 10 at 197. 19. Barry Mayhew, “Are You on the Indian List?” British Columbia History (Vol 41, No 2, 2008). 20. Statute Law Amendment Act, SBC 1968, c 53, s 7. 21. Maritime Museum of British Columbia, “SS Beaver”, Mishaps and Misadventures, online: <web.archive. org/web/20251206101219/http://virtual.mmbc. bc.ca/exhibits/show/mishaps/beaver>.

22. Dostie & Dupre, supra note 13. 23. [1882] 7 App Cas 829, 8 CRAC 502. 24. (1883), [1883–1884] 9 App Cas 117, 9 CRAC 13. 25. Unreported. See Fish, supra note 10 for explanation. 26. Fish, supra note 10 at 203. 27. Ibid at 203–04. 28. Dostie & Dupre, supra note 13. 29. Ibid. 30. Albert John Hiebert, “Prohibition in British Columbia”, (Masters Thesis, Simon Fraser University: April 1969) at 43–44. 31. Daily Colonist (Victoria), (23 February 1908) at 4. 32. Hiebert supra note 30 at 56. 33. Ibid at 58–60. 34. Ibid at 63. 35. Ibid at 65. 36. Ibid at 81. 37. Ibid at 111. 38. Government Liquor Act, SBC 1921, c 30 [GLA]. 39. BC Liquor Distribution Branch, “BC Liquor Distribution Branch celebrates its 95th anniversary” (15 June 15, 2016). 40. GLA, supra note 38, s 10. 41. Ibid. 42. BC Liquor Distribution Branch, “BC Liquor Stores marks 100 years of service with celebration, products sale” (10 June 2021). 43. “BC Liquor Distribution Branch celebrates its 95th anniversary”, supra note 39. 44. John Mackine, “This Week in History: After 13 Dry Years, Prohibition Was Repealed in the United States in 1933”, Vancouver Sun (4 December 2015). 45. Maritime Museum of British Columbia, “Malahat”, online: <web.archive.org/web/20080517 075105 /http://www.vancouvermaritimemuseum.com/ page219.htm>. 46. Ibid. 47. Mackine, supra note 44. 48. Ibid. 49. The George C Reifel Migratory Bird Sanctuary, “About the Sanctuary”, online: <www.reifelbirdsanctuary.com/about.html>.

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FROM OUR BACK PAGES By R.C. Tino Bel

REFLECTIONS OF A LAWYER AT LAW SCHOOL By Hamish Cameron PART II – A MATTER OF COURSES*

When I returned to the UBC law school as a so-called lawyer in residence in the fall of 1974 after having graduated eighteen years before, I found that much had changed: there were three times as many students, four times as many full-time teachers, and five times as many courses offered as there were in 1956. The history of the events that led to the dramatic increase in the number of courses is covered now by the silt and refuse of many years and the story of the struggle is locked in the breasts of old academic warriors. Most are gone now and the few surviving campaigners sit silently in the sun gazing with watery eyes up Howe Sound. From the potsherds and fragments of artifacts that remain and an old committee report found during the excavation of the new law school, it is possible to piece together the outlines of the history. Sometime in the sixties it appears to have been decided that the students should be permitted to choose which courses they should take. However,

* Reprinted from (1976) 34 Advocate 46.

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since the teachers and the students were agreed that the total number of classroom hours required for a degree should not be increased, it was clear that in order to make the choice meaningful (as the jargon of the day had it), it would be necessary to reduce the classroom time spent on the courses traditionally required. Most of them were, accordingly, made into optional half-year courses. Thus, at one stroke, almost three half-years of student time were available to be filled with optional courses. Part of this time had to be filled, of course, by teaching what had been eliminated from the traditional courses so the second half of the course was given a nice new label (usually the second half was called “advanced”) and it was also made optional. The remaining classroom time was filled by creating course labels to fit the current interests of certain members of faculty, or by borrowing course labels from law schools in the east (which had originally been invented to fit the current interests of the faculty there). Since many teachers and some students prefer classes with a low pupilteacher ratio, and since in any event some of the more esoteric and experimental courses did not have a wide appeal among the students, many courses came to be called “seminars” and the enrollment in them was fixed at a comfortably low number. This, of course, led to a demand for more courses and seminars so that those who could not enroll would have a meaningful choice. In case this did not create sufficient pressure so that every teacher could have a seminar of his own, a rule was made that every student must take a seminar before graduating, although in any given year only about seventy actually take place. Some of the course names indicate that they were created in response to current events and fashions of the time: civil liberties, consumer protection, immigration, juveniles, native peoples, law and poverty, computers and the law, environmental control techniques, law and psychiatry, women and the law, family law reform. Other labels show a reactionary concern with the market place: commercial transactions, corporate finance, corporate planning, legal accounting, secured transactions, securities regulation, close corporations, land use control, mining and forest law, creditors remedies, government regulation of business. Other labels proclaim an indifference to the clamour of revolution, reform and economic activity: international organizations, jurisprudence, modern jurisprudential problems, restitution, selected topics in torts and contracts, international law problems, legal history, comparative law, equitable remedies, the Supreme Court. Some courses demonstrate a division of subject matter into tiny dollops: taxation, advanced taxation, tax policy and planning; real property, advanced real property, real estate transactions; criminal law, advanced criminal law, advanced criminal pro-

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cedure, clinical criminal law, administration of criminal justice. In addition, of course, there are the traditional courses, although some of them masquerade under new names: family law, succession, civil litigation. If a student cannot find a course or seminar that suits him, he can seek out a teacher who will be his tutor-advisor in a one-student seminar under the label “directed research”. To top it off, a law student can also take, for law school credit, an approved course in another faculty or department such as engineering, social work, or, presumably, fine art (assuming some tie-in with his course in industrial and intellectual property). As you might imagine, this smorgasbord creates enormous problems: the scheduling of students, teachers and classrooms is a task done by a computer in the basement of a building a mile away, and it is done with all the flexibility, compassion and common sense which we have come to expect from those electronic idiots; the recruiting of teachers to meet the needs of that curriculum would be difficult even if the faculty did not keep running off to high profile government jobs, other law schools, law reform commissions, or back to England, Australia or South Africa (the Americans tend to stay), or on a sabbatical financed by Canada Council. The students complain that they have no rational basis for selecting one course in preference to another, and the present faculty members confess that they can do little to assist them. Nothing is found in the archaeological record to suggest that the founders of the system addressed their minds to this question. Students frequently discover just before Christmas of their third year that the computer (that originally approved their course selection and timing, and let them into and kicked them out of courses they had selected) now is of the view that they do not have the necessary requirements to graduate. All of this is both better and worse than it seems. First of all, it is possible that the course labels and calendar descriptions bear some relation to the subject matter actually treated in the classroom. However, since nobody tells the teachers what to teach or asks them what they are teaching, it is unlikely that the labels or descriptions are of predictive value. It is true that there are casual coffeeroom discussions between teachers who teach what is supposed to be the same course, but since these are primarily designed to share, and thus reduce, the work of preparing exams and since no one exercises the right to compel consultation or to resolve differences of opinion or to co-ordinate the classroom activities of the teachers, the actual content of the courses remains a mystery. It is not only a mystery to me: students and faculty will regale the interested visitor with tales of the same case or subject matter being taught in four or five courses in one academic year. (I have it on good authority, for

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instance, that although the seminar on modern jurisprudential problems did deal with pornography and obscenity in the same year that those subjects were studied in advanced criminal and comparative law, there were in fact no empirical studies or field trips.) The teachers do not attend each other’s classes: they do not go to assist the new teacher learn his job, they do not go to find out how a colleague treats a particular subject which they are going to have to deal with, they do not go to learn something they do not know, they do not go to find out what is being taught or how it is being taught. This is called academic freedom. Neophyte teachers, teachers refused tenure or promotion, and students alike may find it to be like the freedom to sleep under bridges. One young teacher, who was up for promotion or tenure and who thought that the senior faculty should have some first-hand information upon which to judge his capabilities, invited his colleagues to come and watch his performance in the classroom. His bright blue eyes shone with incredulity as he recounted the result: “No one came. Not one single member of faculty has ever been to see me teach!” The convention that professors do not watch each other at work is so solidly entrenched at the law school that my original plan to sit in on as many classes as possible in my time at the law school came to nothing. Nobody said I should not do so and some encouraged me, but it was clearly viewed by most of the faculty as something that well brought up people do not do. However, I did attend one seminar, and if it is indicative of the content, preparation, presentation and utility of the other courses and seminars, there is nothing to worry about. It was a seminar taught by an experienced law teacher whose total experience as a practising lawyer was, I believe, a few months after articles in someplace like Australia about twelve years ago. When I tell you that the seminar was called Negotiation, you will see that it raises important questions about what subjects are capable of being taught at all, what subjects should be taught at law school, and who should teach them. And you will probably be surprised at my conclusions based on my experience at this seminar. The class consisted of twelve third-year students who met with the professor once a week for about fourteen weeks and then wrote a paper for submission during the following term. The first few weeks were spent reading and discussing selections from the available literature on the art and science of negotiation. These selections ranged through the pompous memoirs of lawyers, sociological studies on group dynamics, games theory, psychological studies of the bargaining process, cognitive dissonance, popularizations on the order of “games negotiators play”, and intimate and detailed reports by lawyers of actual cases they negotiated (which were

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frighteningly real and true although the students may not have appreciated how true-to-life they were). This was followed by a series of simulated negotiation exercises. In the first one, the class was divided into three groups of four. Two members of each group were clients and the other two were their respective lawyers. The lawyers were given a set of facts and the clients were given a more detailed set of facts which they could only reveal to the lawyer in answer to specific questions. The lawyers were given one week to attempt to settle the case and to write a report on it. At the end of the week the results of each group were compared with the others and (since the facts were drawn from actual cases provided by Vancouver lawyers) with the actual results, and the students discussed the bargaining process in light of the theoretical background that had been presented. There were, I think, six simulations in all and in the last five the role of the client was dropped, so that all students had lots of opportunity to practise the art. The fact situations were chosen to represent specific theoretical negotiating situations in which the necessary legal research was designed to be kept to a minimum. The professor who led this seminar was very much afraid that students might use the psychological insights and tricks in the material in the bargaining and that this, together with the normal stresses and tensions of life at the law school, might result in psychological damage to the students, and he took great pains to warn them of this and to avoid the danger. Apparently this had actually happened to some extent in earlier years and at other law schools. He also repeatedly told the students that although this experience was intended to be like reality, it differed substantially in many ways from real life and that they should not over-estimate the value of what they had learned. The professor was haunted by the vision of some young lawyer sitting inscrutably in front of Bud Hollinrake or Harvey Bowering and using the “Brer Rabbit Ploy” or attempting to increase their psychological stress by using cognitive dissonance. To reinforce these lessons, at the end of the course the students met in the evening with three middle-aged lawyers and discussed the realities of negotiating by lawyers. The main point of this meeting when I was there was the suggestion in the materials read by the students that some degree of deception and chicanery was a necessary ingredient in all bargaining. The lawyers were all suitably horrified at this suggestion and reinforced very strongly the permissible ethical limits which had been impressed on the students by the professor. My view was that the teacher tended to over-estimate to some extent the dangers in what he was doing and to under-estimate by a wide margin the

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value of the course to the students. If I were running things, I would make this course compulsory for all law students before they are permitted to practise. That is how good I think it is. And what is more, CLE should hire this professor to design a course for practitioners. In the next instalment, I will tell you about the computer print-out on the performance of the law teachers, admissions policy and how to run a law school. It will not be called garbage in — garbage out.

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“City at Night” by James Postill, Oil on Canvas 24'' x 36'', 2026 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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BENCH AND BAR

V

arious notable Broadway premieres have occurred in September and October, including Porgy and Bess (1935), West Side Story (1957), Fiddler on the Roof (1964), Jesus Christ Superstar (1971), CATS (1982), Evita (1979) and Mamma Mia (2001). Composer George Gershwin was born in September 1898, director/choreographer Jerome Robbins in October 1918, and actress Julie Andrews in October 1935. Read on for more about the latest opening nights and first acts around town, and to see which of our colleagues have won the local equivalents of the Tony Awards. Amy G.D. Kaustinen moves from Miller Titerle Law to join Lawson Lundell in Vancouver. Parveen B. Karsan opens Karsan Tax Law, having previously been with Singleton Urquhart Reynolds Vogel. Justin Tam moves from Coal Harbour Law to join Howard Chern Employment Law. Michael A. Feder, K.C., jumps from McCarthys to start up the Vancouver office of Torys, alongside Deborah Templer (formerly of McCarthys), Victoria Tortora (formerly of Fasken), Gabrielle Matheson (formerly of Gowling) and Kelsey J. Wong (formerly of Sullivan & Cromwell). Ashley A. Ainsley is now at Cozen O’Connor, moving from TMX Group. Noah C. RobinsonDunning leaves Guild Yule to join Harper Grey. Shelley Chapelski leaves Norton Rose Fulbright to become a partner at Kits Point Law. Nicole M. Coran is now at Victory Square Law after completing articles with Lidstone & Company. Jillian (Jill) E. Epp moves down the road from Lawson Lundell to join Fasken. Gurneet Gill moves from Silaw Group Family Lawyers Lawyers who have moved their practices should e-mail details of their past and present circumstances to Peter Roberts, K.C., at <benchandbar@the-advocate.ca> to ensure an appearance in “Bench and Bar”. Note that we do not report changes in lawyers’ status within their firms (from associate to partner, for example) other than in cases where persons formerly articled have been hired as associates.

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to Outset Law. Trevor B. Duncan leaves Gall Legge Grant Zwack to join Fasken. Derek Knoechel departs HHBG Lawyers to become general counsel at the British Columbia Nurses Union. Kyu Tae (Danny) Park moves from Reedman Law to Lawson Lundell. Rachel K.H. Au moves from Hunter Litigation to join Roper Greyell. Luke K.K. Conkin sets off to clerk at the Federal Court in Ottawa, leaving KSW Lawyers to do so. Catherine T.H. Whitehead moves from Lawson Lundell to CLEBC. Diana Wang moves to Civic Legal from McCarthy Tétrault. Alyshia M. Jiwan joins Kornfeld and was formerly at Terra Law Corp. Southern Law beefs up its ranks with the addition of several people. Emily F. Ohler, K.C., joins after a decade with the BC Human Rights Tribunal. William (Bill) A. Duvall moves from the role of municipal solicitor with the District of North Vancouver. Carly Chunick joins from the BC First Nations Justice Council. Jessica L. Derynck moves from the BC Human Rights Tribunal. Dayna M. Forsyth moves from IWJ Law. E. Lilac Bosma was previously General Counsel and VP Legal at Canfor. Dawn Boblin joins after several years on the Provincial Court bench and, lastly, Pamela R. Costanzo was a sole practitioner. “Broadway” today is generally taken to mean the Theatre District along Broadway in Midtown Manhattan in New York City. That famous street began life as a Native American path known as the Wickquasgeck Trail. In the 17th century, Dutch settlers took over the area and renamed the path De Heeren Straat, meaning “the Gentlemen’s Street.” Because the path was very wide, many Dutch settlers called it Brede Weg (Broad Way). When the British took over, they kept the name. Broadway is one of the oldest streets in New York and predates the grid system which explains why it cuts diagonally across the city. It is also one of the longest streets in New York at 33 miles (53.1 km). Starting at Bowling Green in Lower Manhattan, it runs north all the way to Albany, which is outside the New York City limits. In news from overseas, B.C. bar member Lorna K. Strong moved from her role as Deputy General Counsel and Managing Director at HSBC Group in London to the London School of Economics to run the school’s M.Sc. Law and Finance masters degree program. Oscar Hammerstein II, an American lyricist who worked with composer Richard Rodgers on musicals such as Oklahoma!, Carousel, South Pacific, The

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King and I and The Sound of Music, as well as with Jerome Kern on the musical Show Boat, studied law at Columbia Law School but left to pursue theatre. Jeffrey W. Locke was appointed a justice of the Supreme Court of British Columbia and will sit in Victoria. He replaces Justice Jennifer A. Power who elected to become supernumerary. Michael D. Shirreff was appointed as an associate justice of the Supreme Court of British Columbia and will sit in Vancouver. Jason C. LeBlond, K.C., and Matthew J.H. Stacey were appointed as judges of the Provincial Court of British Columbia and will be resident in Prince George and Port Coquitlam respectively. Clare M.F. Jennings, K.C., was also appointed a judge of the Provincial Court of British Columbia and will be resident in Nanaimo. “A paradigm derivative work is the musical ‘My Fair Lady,’ based on the play ‘Pygmalion.’”: Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821 (11th Cir. 1982). Lerner and Loewe’s 1956 stage play (made into a 1964 film starring Audrey Hepburn and Rex Harrison) and George Bernard Shaw’s 1913 play were also derived from Greek myth retold by the Roman poet Ovid. Tamera A. Golinsky and Jasdeep Singh Mattoo were appointed as judicial justices with the Provincial Court on a part-time basis for terms of ten years. “Unlike other forms of intellectual property, the gravamen of trade-mark entitlement is actual use. By contrast, a Canadian inventor is entitled to his or her patent even if no commercial use of it is made. A playwright retains copyright even if the play remains unperformed. But in trade-marks the watchword is ‘use it or lose it’”: Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22. Ken Ludwig is an American playwright who won a Tony Award for best musical for Crazy for You. He obtained a J.D. from Harvard Law School and an LL.M. from Cambridge University (Trinity College). Noted the court in Hicks v. SSA, No. 7:2016cv00154 - Document 48 (E.D. Ky. 2016): “Just trust us: We’re the government.” That’s not something you are supposed to hear every day. For good reasons, the Constitution limits the government’s freedom to act simply on trust. One reason is that withholding this freedom from the government protects the freedom of its cit-

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izens. Alexander Hamilton, a founding father before he was a Broadway star, put the point this way: “To bereave a man of life . . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation.”…. Hence provisions like the Due Process Clause. The main point of that clause, to put it less eloquently than Hamilton would have, is that the government cannot do things to you without telling you why and without giving you a chance to speak for yourself.

First Vice-President Michael F. Welsh, K.C., and bencher James Struthers have resigned as benchers of the Law Society, effective July 4 and June 12, 2026, respectively. In the wake of these resignations, Second Vice-President Katrina Harry, K.C., is now First Vice-President and Second Vice-President-elect Cheryl D’Sa, K.C., is now Second Vice-President. “Patrick Henry of Virginia, a lawyer, and no less of a patriot than Hamilton, expressed the general conviction of the people of the Thirteen States when he said, ‘[t]rial by jury is the best appendage of freedom….’”: Ball v. New York State Dept. of Health, 2025 NY Slip Op 25090. The court explained its reference as follows: “Although Henry may not have a Broadway musical commemorating his contributions to our Nation’s founding (Miranda, Hamilton: An American Musical [2015]), he did famously and compellingly set forth an altogether perfect call to arms against British oppression [“give me liberty or give me death!”]…” The CBABC handed out the CBABC Awards at the Provincial Council meeting on May 9, 2026. The Harry Rankin, QC Pro Bono Award was bestowed on Kathryn A. McGoldrick. The Community Supporter Award was given to Arun Mohan. The President’s Medal was awarded to Chief Judge Melissa Gillespie. “Hollywood movies and Broadway musicals took unprecedented liberties with truth to convince us the resolution of land conflicts in the development of the American west was characterized by the tempering hand of fairness and reason. The glamorous stories assured us once the villains were dispatched, common sense and the abiding Pollyannish notion of ingrained American fairness would mould together the good from all sides”: R. v. Gonder, 1981 CanLII 3207 (YK TC). June 5, 2026 saw the 21st edition of the Vancouver Battle of the Bar Bands take place at the Commodore. The event raised over $120,000 in support of the CBA(BC) Benevolent Society’s mission of supporting lawyers and arti-

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cling students in crisis. After a raucous night of music, the winning minstrels were House Arrest comprising David W. Hay, K.C., Judge David St. Pierre, Jonathan W. Monk, Shabaz Khan, Tilden Webb and Richard Brown. Taking second place was Standard of Hair with the hard-working band members Mike Mjanes, Trevor Wiebe, Alex Fane, David Hendricks, David Wong and Ian McCarthy. Just behind them in third place was SHAG the Band with Jill McLennan, David Joyce, Jonathan Wai, Sarah Rerecich, Elan Hannah, Mike Meitner, Kurt Mang, Paul LeBlanc and Casey Carmody. Well done all. “[I]t is important also to understand that this [the situation the court was addressing] is not the Jets-Sharks conflict illustrated in the jazz-opera West Side Story”: R. v. Spence, 2011 ONSC 5587. Benedict S. Parkin was appointed as a member of the British Columbia Review Board for a term of two years. Ethel Merman was a “well-known entertainer” who “was born, raised and educated in New York. During the period from 1930 to 1952 she worked professionally as an actress on the Broadway musical stage, starring in such hits as ‘Annie Get Your Gun’ and ‘Call Me Madam’ and appearing in various other less successful shows”: Six v. United States of America, 450 F.2d 66 (2d Cir. 1971). The Honourable Mr. Justice Elliott Myers, retired, was recently appointed to the board of the Justice Education Society. “The application of ancient common law princip[le]s will permit a person to claim ownership in an ‘outside cat’ notwithstanding the cat’s propensity to wander away from the immediate dominion and control of its owner”: Madero v. Luffey, No. 2:2019cv00700 - Document 65 (W.D. Pa. 2020). The court noted that “Deuteronomy, from Andrew Lloyd Webber’s musical Cats, aptly summarizes some of the factors that should be considered: Before a cat will condescend / To treat you as a trusted friend / Some little token of esteem is needed, like a dish of cream / And you might now and then supply / Some caviar and Strasbourg pie / Some potted grouse or salmon paste / He’s sure to have his personal taste / And so in time you reach your aim / And call him by his name.” Chloe Stone was re-appointed to the Volleyball BC Board of Directors as the Athletes Representative for a two-year term.

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The Vancouver Bench and Bar Dinner took place on May 26, 2026. As part of the festivities, Dawn M. Kuehn was awarded the LAPBC Lawyers Helping Lawyers Award. Michèle Ross received the CLEBC Leaders in Learning Award. Derek LaCroix, K.C., was given the Georges A. Goyer, QC, Memorial Award for Distinguished Service. Vancouver has its own Broadway which runs approximately 11.6 kilometers from Wallace Crescent in Jericho (transforming from 8th Avenue) to Rupert Street in the East where it becomes Lougheed Highway. The street began life as 9th Avenue but the name was changed to Broadway in 1909 to give it a more cosmopolitan flair. There are Broadway avenues or streets in each of Chilliwack, Nakusp, Nanaimo and Saanich similarly known for their cosmopolitan sophistication. Madisun V. Browne was reappointed as a member of the Property Assessment Appeal Board and designated as vice chair for a term ending December 1, 2031. Monique Pongracic-Speier, K.C., and Raphael Tachie were reappointed as members of the board of Simon Fraser University for terms ending July 31, 2028. “[T]he Beatles’ song ‘Rocky Raccoon’ refers to a Gideon Bible, as does a character in the musical ‘Guys and Dolls.’”: Gideons Intern., Inc. v. Gideon 300 Ministries, 94 F. Supp. 2d 566 (E.D. Pa. 1999). Natalie Parsonage, Kathryn (Kate) Scallion and Katrina Schaer were all appointed to the Employment and Assistance Appeal Tribunal for terms ending April 30, 2028. Fiorello! is a “Broadway musical about the life of Fiorello H. LaGuardia”, a “diminutive politician [who] began his legal career in the early 20th Century as a pro-labor activist, fighting sweatshop owners. Before becoming mayor of New York City, he served several terms in Congress….”: Vu v. Allied Foot, 180 Md.App. 663 (2008). Jessica K. Hadley and Carol L. Whittome were appointed as members of the British Columbia Human Rights Tribunal for terms of three years. Johanne A.C. Blenkin, law librarian, was reappointed as a member of the Legal Professions transitional board for a term ending July 22, 2028.

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Rent is “the Pulitzer Prize and Tony Award-winning Broadway modern musical based on Puccini’s opera La Boheme”: Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998). Annabelle P. Donovan was reappointed as a member of the board of the British Columbia Institute of Technology for a term ending July 31, 2028. “While the breathalyzer test is expedited by the volitional expulsion of a large quantity of inhaled breath, the results of that test will not be colored, as might a testimonial utterance, by coercion or psychological pressures. As was well said by the lyricist of Lerner and Loewe’s, ‘My Fair Lady,’ respiration is typified as, ‘... second nature to me now. Like breathing out and breathing in.’: State v. Driver, 59 Wis. 2d 35 (1973). Nathaniel R.P. Sukhdeo was reappointed as a member of the Victoria and Esquimalt Police Board for a term ending June 30, 2028. The Ontario Superior Court noted in R. v. Evans, 2013 ONSC 2447 that “[i]t may be, for example, that a jury does not require expert evidence to know that street gangs are often associated with territory. This is not new. It is well known to the public from many years of exposure to information about organized crime, by journalists and in books and movies, which perhaps reached its artistic high point in 1957 in the Broadway musical West Side Story.” “This is the latest scene in a long stage-play involving the sale of a Delaware corporation, Authentix Acquisition Company, Inc. (‘Authentix’). As with a Broadway musical, the orchestra has played me many a tune, but a single melodic line tends to run throughout. Here, it was a stockholders agreement…”: Manti Holdings, LLC v. The Carlyle Group Inc., CA. No. 2020-0657SG, CA No. 2020-0657-SG, C.A. No. 2020-0657-SG (2022). Rabjeet S. Wallia was reappointed as a member of the board of Capilano University for a term ending July 31, 2029. Adhithya Krishnan of Allard Law was the winner of the 2026 BCLI Mathew Good Memorial Prize, co-presented by CBABC. Marie D.L. Irvine, Alysha M. Bennett, Lynn G. Muldoon and Jeremy D.A. Bryant were reappointed to the Employment Standards Tribunal for terms ending June 18, 2029. Richard W. Grounds was reappointed for a term ending June 25, 2031.

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The longest running show on Broadway was The Phantom of the Opera, which had over 13,000 performances before closing in April 2023. At over 8,000 performances, Chicago is the second longest running show. The musical Chicago is based on a much earlier stage play of the same name written by Maurine Dallas Watkins, who once worked as a Chicago Tribune journalist covering courthouse events. One of the characters in both the play and the musical is William (Billy) Flynn, a criminal defence lawyer whose tunes in the musical include “They Both Reached For The Gun (The Press Conference Rag)” and “Razzle Dazzle”. Jacqueline Renee Reed was reappointed as a member of the board of the University of Northern British Columbia for a term ending July 31, 2028. “If Damon Runyon’s Nathan Detroit had known he could make loans charging 100% interest a day by reducing them to writing, and having them signed and subject to Utah law, he would not have had to seek a living running the ‘oldest, established, permanent floating crap game in New York.’”: American Express Travel Related Servs. Co., Inc. v. Assih, 2009 NY Slip Op 29527. The court explained: “Nathan Detroit achieved fame as a character in the musical Guys and Dolls, which is based on two Damon Runyon stories, ‘The Idyll of Miss Sarah Brown’ and ‘Blood Pressure.’ ‘The Oldest Established’ is from Guys and Dolls (music and lyrics by Frank Loesser). Ironically, Runyon was born in Dorothy’s home state of Kansas.” Anita K. Atwal, K.C., and Craig T. Munroe were reappointed to the board of the Organized Crime Agency of British Columbia for terms ending on June 30, 2028. The tribunal noted in OCTAL Inc. v. United States, No. 20-03698 (Ct. Int’l Trade 2021): Christopher Plummer, the Academy Award-, Tony Award- and Emmy Award-winning actor (and Grammy-nominated singer) opens his autobiography with the sentence: “I was brought up by an Airedale.” [Christopher Plummer, In Spite of Myself: A Memoir (2008) (“I won’t deny it, ‘tis the truth and nothing but, Your Honour — a bumbling, oversized, shaggy great Airedale. The earliest memory I have of anything resembling a pater familia, bouncer, male-nurse or God is that dear slobbering old Airedale.”] The sentence may, at least for Airedale aficionados, potentially rival such other notable opening sentences as, just for instance, “Call me Ishmael.” [from Herman Melville, Moby-Dick; or, the Whale (1851)] Without prejudice to which work may arguably hold a firmer place in the annals of American literature, it cannot be gainsaid that an

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Airedale is (most of the time, at least) a better being to host as a pet in one’s home — or, at a minimum, a somewhat more sensible one — than an 85-foot long, roughly 55-ton sperm whale.

Tara Callan, Nicholas R. Hughes and Anne Muter were appointed as members of the Environmental Appeal Board, the Forest Appeals Commission and the Energy Resource Appeal Tribunal for terms of two years. The Lion King is Broadway’s highest grossing production at $1.4 billion and was the first to make over $1 billion. The show features 232 puppets portraying 25 species of animals, birds, fish and insects. Barbara A. Carmichael, K.C., was appointed as chair of the Justice and Public Safety Council. Legally Blonde, the musical, started its Broadway run in 2007. It is about Harvard Law student Elle Woods and was tackled in Vancouver by the cast, musicians and crew of the Lawyer Show in a Touchstone Theatre production in 2023. Robert M.D. Orr, K.C., David M.G. Newell and Katherine M. Wellburn were reappointed as members of the Health Professions Review Board for terms ending December 31, 2029. Jessie N.E. Ramsay was appointed as a member of the board of the University of the Fraser Valley for a term ending July 31, 2027. The Court of Appeals for the Eighth District of Texas wrote, “Rodgers and Hammerstein famously asked in the musical ‘Oklahoma!’ why can’t the farmer and cowman be friends. In this case, we could pose the same question about two companies, one in the oil business, and the other in the water business”: In Re: Plains Pipeline, L.P., No. 08-19-00224-CV (2020). The court footnoted the first sentence as follows: “‘Oh, the farmer and the cowman should be friends. One man likes to push a plough, the other likes to chase a cow, but that’s no reason why they cain’t be friends.’ OKLAHOMA! (Rodgers & Hammerstein Productions 1955)”. MPL Communications is one of the world’s largest privately owned music publishers holding the rights to Hello Dolly!, Grease, Guys and Dolls, A Chorus Line, You’re a Good Man Charlie Brown, The Unsinkable Molly Brown, La Cage aux Folles, Annie and The Music Man. Founded in 1969, the company has headquarters in London and New York and was founded and is still owned by Paul McCartney.

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Wayne N. Plenert and Oleg H. Tomchenko were both reappointed to the Mental Health Review Board for terms ending December 31, 2028 and December 31, 2029 respectively. David Mamet’s plays include Glengarry Glen Ross and his screenwriting credits include The Verdict, about a lawyer played by Paul Newman taking on a medical negligence case. Yasin S. Amlani and Sandra Jane Jakab were reappointed as directors of the BC Financial Services Authority for terms ending May 31, 2028. “In 1968, Mel Brooks wrote and directed the sometimes outrageous film, The Producers. In this film, which Brooks reprised in a 2001 Broadway musical of the same name, the protagonist, Max Bialystock, created a scheme through which he was able to convince a coterie of unsuspecting individuals to invest in his deliberately ill-fated Broadway ventures”: Livent Inc v. Deloitte & Touche LLP, 2014 ONSC 2176. Abigail Fulton was appointed a member of the board of Camosun College for a term ending July 31, 2027. There are currently 41 theatres considered to be “Broadway Theatres” but only four are actually located on Broadway: The Winter Garden, The Roundabout, The Marquis and The Broadway Theatre. Only shows performed in Broadway theatres are eligible for Tony Awards. Mark S. Weintraub, K.C., was reappointed as a member of the board of the Justice Institute of British Columbia for a term ending July 31, 2028. Jersey Boys is “a hit Broadway musical based on the band The Four Seasons that has played in the United States, Canada, England, and Australia, grossing many millions of dollars”: PAL Corbello v. DeVito, No. 2:2008cv00867 Document 661 (D. Nev. 2011). Carol L. Schafer was reappointed as a member of the board of Okanagan College for a term ending July 31, 2028. The New York Theatre District used to be further downtown around Union Square. However, it moved Uptown to Times Square in the early 1900s because real estate was cheaper. In the early- to mid-1900s, there were about 90 Broadway theatres.

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The court footnoted its statement that “[t]he Court hereby transfers this case to the United States District Court for the Southern District of New York” with “‘Start spreading the news; [you’re] leaving today.’ Frank Sinatra, Theme from New York, New York, on Trilogy: Past Present Future (Reprise Recs. 1980)”: Clear C2 Inc v. Verizon Sourcing LLC, No. 3:2025cv00979 - Document 18 (N.D. Tex. 2025). One of the shortest runs on Broadway was the musical Carrie, an adaptation of Stephen King’s classic horror novel. Opening in April 1988, it lasted five official performances. Frank Rich, the New York Times theatre critic of the day, described it as a musical wreck that “expires with fireworks like the Hindenburg”. L. Michael Walker was appointed to the board of the University of British Columbia for a term ending July 31, 2028. The Tony Awards were established in 1946 to commemorate Mary Antoinette “Tony” Perry. She was an actor and stage director at a time when women in the theatre were generally relegated to positions as costumers or dressers. She began directing in 1928 and, in partnership with Brock Pemberton, produced many successful Broadway plays, including the Pulitzer Prize winning Harvey. Wikipedia reports that Helen Hayes was the second person and first woman to win the “EGOT” (Emmy, Grammy, Oscar and Tony Award). Among various philanthropic endeavours, she and Lady Bird Johnson co-founded the National Wildflower Research Center in the United States. The first EGOT winner was Richard Rodgers. Danielle E.H. Allen was reappointed as a member of the board of Coast Mountain College for a term ending July 31, 2029. “‘Brigadoon’ is a Lerner and Loewe musical about a mythical Scot village that appears once every one hundred years”: Midland Funding LLC v. Loreto, 2012 NY Slip Op 50338 (U). [This musical is despicable not so much for the portrayal of Scottish people (although there is that) but for the experience of forcing audiences to listen to so many terrible Scottish accents. It should be re-named Brigadon’t.” – Ed.] Mark V. Walsh was appointed to the board of Vancouver Island University for a term ending July 31, 2027. Peter C.P. Behie, K.C., was reappointed for a term ending July 31, 2028.

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The “primary significance” of the term “AMERICAN BEAUTY” “may change with use and what it is depends upon where it is used and how one encounters it. Florenz Ziegfeld, the great showman of what has come to be known, for no clear reason, as the ‘roaring twenties,’ the great ‘Glorifier of the American Girl,’ brought into being what were popularly termed at the time his ‘longstemmed American Beauties’ which were not roses at all but show girls”: The Singer Manufacturing Company v. Birginal-bigsby Corporation, 319 F.2d 273 (C.C.P.A. 1963). Diana Valiela, Maureen E. Baird, K.C., Subodh Chandra and Peter J. Carwana were reappointed as members of the Environmental Appeal Board, the Forest Appeals Commission and the Energy Resource Appeal Tribunal for terms running to December 2028 and 2029. The Black Crook is considered to be the first musical on Broadway. It premiered on September 12, 1866, and featured dialogue and contemporary songs (making it different from an opera) with a singular plot (making it different from a revue or variety show). The production was five-and-a-half hours long but was a hit and ran for, at the time, a record-breaking 474 performances. In the show, an evil count wants to marry a beautiful village girl, but as she was already engaged, the count captures her fiancé and delivers him to a black magic practitioner who tries to sell him to the devil. With a little supernatural help, the fiancé is freed and happily reunited with his love, and the evil count is defeated. Jonathan M. Chapnick, Robin A. Dean and Theressa M.M.K. Etmanski were reappointed as members of the British Columbia Human Rights Tribunal for terms ending November 1, 2031. Hungarian Heritage Day is to occur on October 23, 2026. Maureen E. Baird, K.C. was reappointed as chair of the Safety Standards Appeal Board for a term ending November 26, 2028. In Quality Inns International, Inc. v. McDonald’s Corp., 695 F. Supp. 198 (D. Md. 1988), the court considered McDonald’s Corporation’s opposition to an attempt by Quality Inns International, Inc. to market a new chain of economy hotels under the name “McSleep Inn”. The hotel business argued that “‘Mc’ has become a generic prefix meaning thrifty, consistent, and perhaps convenient”, saying that “the notion of thriftiness comes from the association with the Scots and the perception that the Scots are thrifty.” A linguist

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also gave examples of finding uses of “Mc” including “McMiz” for “franchising of the Broadway musical ‘Les Miserables.’” Indeed, the court noted that “[a] news report placed into evidence referred to the trial before this Court as taking place in the McCourt, which, of course, would make the judge the McJudge. While the Court understood that association with the Courthouse in Baltimore, it could not come to grips with the suggestion that the trial was before a McJudge. The Court could find few, if any, of the attributes of ‘Mc’ used by McDonald’s or by the journalists otherwise to fit. Perhaps this McPinion will fulfill that prophecy.” The court concluded that “the uses in the press of ‘Mc’ plus a generic word are coined and novel to each article for the playful use by the author. In each case the allusion, whether express or implied, was to McDonald’s, sometimes flattering and sometimes pejorative. There was no single independent meaning of ‘Mc’ understood in the language and its uses have been created to convey any one of several attributes that the author makes to McDonald’s.” Debunking a novel fraud claim as “utterly devoid of merit”, the court noted: “One is reminded of the comment by Professor Henry Higgins, in ‘My Fair Lady,’ that Eliza Doolittle’s father Alfred was ‘one of the most original moralists in England.’”: Cluett, Peabody & Co. Inc. v. Cpc Acquisition Company, Inc., 863 F.2d 251 (2d Cir. 1988). Craig C. Ferris, K.C., was recently elected as the president of The Advocates’ Society. According to its website, “The Broadway League is the national trade association for the Broadway industry. Our 700-plus members include theatre owners and operators, producers, presenters, and general managers in North American cities, as well as suppliers of goods and services to the commercial theatre industry. Each year, League members bring Broadway to more than 30 million people in New York and more than 200 cities across the U.S. and Canada.” Katrina Schaer was appointed as a member of the board of the British Columbia College of Social Workers for a term ending December 31, 2027. The court noted in Gold v. DiCarlo, 235 F. Supp. 817 (S.D.N.Y. 1964): Although Eugene O’Neill’s “The Iceman Cometh” has passed from Broadway and off-Broadway, the “iceman” still is a familiar behind-the-scenes figure on the Great White Way. The “ice” he carries, we are told, has not thawed and still represents the tribute paid by some brokers to box-office treasurers in return for allocations of a substantial portion of the choice

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seats for each performance. The brokers pass on the cost of such “ice” to their customers, in most instances businessmen accommodating out-oftown clients, and charge prices much higher than the box offices…

Connor Bildfell was recently recognized with the Canadian Bar Association’s Douglas Miller Rising Star Award. Among the winners of the Tony Award for Best Play are A Man for All Seasons (1961), about Henry VIII’s Lord Chancellor. In February 1927, Mae West and several other actors were arrested while performing a play Ms. West had written called Sex. The play followed Margy LaMont, a sharp-witted sex worker in Montreal’s red-light district, as she navigates relationships, escapes a criminal pimp and falls for a wealthy young millionaire whose mother turns out to be an old rival. Ultimately, Margy chooses a simpler path in life. In sentencing Ms. West to eight days in jail (which she served), the court described the play as an “obscene, indecent, immoral, and impure drama” that would lead to “the corruption of the morals of youth”. Despite generally poor reviews, the show ran for 375 performances. West’s final film was 1978’s Sextette directed by Ken Hughes and co-starring Timothy Dalton, Dom DeLuise, Tony Curtis, George Hamilton, Ringo Starr and Keith Moon. Derived from West’s own stage play of the same name, it received even poorer reviews than Sex. Noted the court in Miller and Jr’s Kitty Kat Lounge, Inc. v. Civil City of South Bend, 904 F.2d 1081 (7th Cir. 1990): Dance as entertainment is one of the earliest forms of expression known to man. Its written history goes back at least as far as fifth century classical Greece, where Euripides described the frenzied fertility dance in his drama Bacchae. Dance also has biblical roots. See e.g., Psalms 149:3 (“let them praise his name with dancing, making melody to him with timbre and lire!”); Psalms 150:4 (“Praise him with timbrel and dance ...”). In ancient Rome, dancing was an important part of the annual festivals of Lupercalia and Saturnalia which featured wild group dances that were the precursors of the later European carnival. Eroticism in dancing also has ancient origins. The modern-day belly dance, or baladi, can be traced to the Egyptians of the fourth century, B.C. Buonaventura, W. Serpent of the Nile (1990). From these ancient roots one can trace the forms of dance native to America. Indeed dance pervades our culture, from the American Ballet Theater to Broadway’s A Chorus Line and West Side Story, from Hollywood’s Astaire and Rogers to the local discotheque.

Circuit Judge Posner, concurring, added: Public performances of erotic dances debuted in Western culture in the satyr plays of the ancient Greeks, were suppressed by Christianity, and,

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with Christianity’s grip loosening, reappeared in the late nineteenth and early twentieth centuries. They reappeared in a variety of forms: as the can-can and the music-hall chorus line, from which the Folies Bergere and its tame American counterparts—the Ziegfeld Follies, and more recently the Radio City Music Hall Rockettes and the chorus lines in Broadway and Hollywood musicals—descend. As the Dance of the Seven Veils in Richard Strauss’s opera Salome (1905), from which the fan dancing of Sally Rand and the decorous striptease of Gypsy Rose Lee, or of Gwen Verdon in the musical comedy Damn Yankees, may be said to descend….

David Merrick, an American theatrical producer, studied law at the Saint Louis University School of Law. Patricia E. Bood was reappointed as a member of the Passenger Transportation Board for a term ending June 28, 2028. The Supreme Court of Kentucky noted that “Jerome Kern was a “renowned composer and two-time Oscar winner”, who is “well known for composing the music for ‘Showboat’ and for his composition of many popular songs, including ‘Smoke Gets in Your Eyes’ and ‘The Way You Look Tonight.’….Mr. Kern was one of the leading American composers of the Twentieth Century”: Kern Cummings v. Pitman (Executor of the Estate of Betty Kern Miller), No. 2005-SC-000861-DG (2007). Jennifer A. Khor was reappointed as a member of the Health Professions Review Board for a term ending November 19, 2029. y definition, Broadway theatres seat 500 or more patrons while off-Broadway capacity ranges from 100 to 499. Only 99 people or fewer can fit in an “off-off-Broadway” venue. “[T]he Broadway play Angels in America, which concerns homosexuality and AIDS and features graphic language, was immensely popular in New York and in fact earned two Tony awards and a Pulitzer prize….In Charlotte, North Carolina, however, a production of the drama caused such a public outcry that the Mecklenburg County Commission voted to withhold all public funding from arts organizations whose works ‘expose the public to perverted forms of sexuality.’”: American Libraries Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). “The Shaw Festival, named after the Irish playwright George Bernard Shaw, was founded 64 years ago and has operated in the Town of Niagara-

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on-the-Lake since then”: Centurion Building Corporation v. The Shaw Festival, 2026 ONSC 1808. Gingold Theatrical Group presents performances off Broadway. Previous Broadway productions of Shaw plays have included Saint Joan, Mrs. Warren’s Profession, Pygmalion and Major Barbara. Carla D. Qualtrough was reappointed as a member of the Delta Police Board for a term ending June 30, 2028. Rajiv K. Gandhi was reappointed as a member of the Saanich Police Board for a term ending June 30, 2028. On September 13, 1983, Yul Brynner marked his 4000th performance in The King and I in Los Angeles. The words “Diamonds are a girl’s best friend” are “[f]rom the song of the same title sung first by Carol Channing and then by Marilyn Monroe in, respectively, the Broadway musical Gentlemen Prefer Blondes (1949) and the Hollywood movie of the same name (1953). Aficionados of James Bond movies would want to add that boys are also often enamored of diamonds. See Diamonds Are Forever (1971)”: Carnegie Institution of Washington et al v. Pure Grown Diamonds, Inc., No. 1:2020cv00189 - Document 46 (S.D.N.Y. 2020). [Justice Rakoff evidently did not listen to the lyrics of “Diamonds Are Forever” written by Don Black in 1971 which reveal that for singer, Shirley Bassey, diamonds are all she needs to please her because unlike men, diamonds linger and will never leave her. – Ed.] Thought du mois: In my many years, I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a congress. —Peter Hess Stone (writer and playwright), 1930–2003, attributed to John Adams in the 1969 Broadway production of 1776

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CONTRIBUTORS The Honourable Justice David Crerar was appointed to the British Columbia Supreme Court in 2019 after a career as a commercial civil litigator at Borden Ladner Gervais. In 2009 he created the “Bagger Challenge”, a contest to see who could climb the most North Shore peaks in a season. The challenge, in turn, resulted in the publication of The Glorious Mountains of Vancouver’s North Shore. If you walk on any street in British Columbia, chances are Mr. Justice Crerar has run along it at one time or another. Eric Main is an associate at Harris & Co. in Vancouver with a focus on workplace law and administrative law. He has previously contributed to the 7th edition of the Civil Trial Handbook. Joanne Lysyk is a retired lawyer who formerly practised as a litigator at Blakes. The second part of her treatise on legal maxims appears in this issue. It is based on a paper that she presented at a meeting of Vancouver’s 20 Club, of which she is a member, in 2026. David A. Paul, K.C., is a seasoned family law mediator who practises family law at Paul & Company in his home town of Kamloops. He was called to the bar in 1987 after graduating from law school at UVic the previous year. David Penner is a partner at Harris & Co. in Vancouver where he maintains a broad litigation, labour and employment law practice. In 2026 he was named as a “future star” by Benchmark Litigation Canada. The closest star to Earth is the sun, which is 150 million kilometers away. Penner must be moving pretty quickly.

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“Nootka Island III” by Sandra Harris, Acrylic on Canvas, 40'' x 30'', 2025 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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40037919 RETURN REQUESTED To: THE ADVOCATE, 709 – 1489 Marine Drive, West Vancouver, B.C. V7T 1B8