Practice Watch

Your Practice Advisor

Felicia S. Folk, the Law Society's Practice Advisor, is available to discuss your practice concerns. All communications between Ms. Folk and lawyers are strictly confidential, except in cases of trust funds shortages.

You are invited to call her at (604) 669-2533 or toll-free in B.C. 1-800-903-5300 at any time, or write to her at the Law Society office.

 Sharing fax machines

It is strongly recommended that you do not share a fax machine with individuals who are not members of your firm. If you are in a space-sharing situation with other lawyers, you may share a fax if, in other respects, you act as a firm (i.e., you do not act adversarially), and you treat confidences as confidences of the whole practice.

The Discipline Committee recently found that a lawyer had breached the provisions of Chapter 5 of the Professional Conduct Handbook by making use of a fax machine that allowed faxes sent to his attention to be reviewed by people other than his partners or associates in the practice of law.

The new adult guardianship legislation

On February 28, 2000, four new Acts will be proclaimed which together will change the nature of adult guardianship. Of this legislation, the Representation Agreements Act will have the most profound effect on your practice. The nature of the duties on lawyers, the changes in the law, such as the test for capacity, and the replacement of powers of attorney with representation agreements, are not such as can be easily described here.

I strongly urge you to become familiar, not only with the legislation, but also with the concerns about the legislation, before you give any advice on representation agreements.

CLE’s course on this legislation in Vancouver and Victoria will have taken place by the time this Bulletin reaches your desk. If you did not attend the course, I strongly suggest that you watch the tape or buy the course material.

Limitation periods and Aboriginal rights

Uncertainty exists on how limitation periods will be applied to two kinds of claims recognized in the Delgamuukw decision: a claim for Aboriginal title and a claim for unjustified infringement of Aboriginal title.

The Court of Appeal was asked, in Stoney Creek Indian Band v. Alcan Aluminum Limited, 1999 BCCA 519, to decide whether an Aboriginal claim for damages was barred by the Limitation Act. The pleadings include references to equitable fraud, breach of trust and constitutional issues. The Court declined to answer the question because the material facts had not been addressed in the proceedings.

Until the Court of Appeal rules on this question, be aware of the uncertainty around limitation periods and Aboriginal claims, and make no assumptions about limitation periods for causes of action such as trespass or damage to property, or breach of fiduciary duty. It may be that the only way of ensuring causes of action are not lost is to initiate proceedings against all possible defendants and effect service appropriately.

"Spouse" and the Wills Variation Act

In January, 2000, Scarth, J. decided in Grigg v. Berg and others, 2000 BCSC 36, that s. 2 of the Wills Variation Act, which provides that the court may make provision out of a testator’s estate for a wife, husband or children, is unconstititutional and the remedy is to read into the Act a definition of "spouse" that includes a common law spouse or a person who has cohabited with the testator for at least two years before the other person’s death in a marriage-like relationship, including a marriage-like relationship between persons of the same gender.

It would be prudent to advise clients making wills that the class of persons who may apply to vary a will has widened considerably. Solicitors sending the notice of application for grant of probate or letters of administration should include those in a marriage-like relationship with the testator, and those representing such persons should be aware that the client may now have a remedy under the Wills Variation Act.

Please note that this decision, albeit in the context of the Wills Variation Act, may well have broader impact. Furthermore, the eventual passing of omnibus legislation to deal with this specific issue in relevant statutes is likely.