Submitted by Section Co-Chair, Tina Parbhakar
Summary of Meetings
Number of Meetings Held:7
September 29 , 2016
Guest Speakers: Marilyn Sandford, Q.C., Counsel for Ivan Henry, Keith Johnston, Counsel for British Columbia, Karen Liang and Bruce Quayle, Counsel for Vancouver, and Mitchell Taylor Q.C., Counsel for Canada.
Meeting Title/Topic: Crown Disclosure, Wrongful Conviction and Charter Damages: Henry v British Columbia
Synopsis: In Henry v British Columbia, 2016 BCSC 1038, the Court broke new ground in awarding Ivan Henry over $8M in Charter damages for wrongful conviction. Join us at our first section meeting of the year to hear from counsel for all parties speak about the Charter damages award, prosecutorial liability and the trial.
November 28 , 2016
Guest Speakers: Nils Jensen, Mayor of Oak Bay, Retired Counsel for BC Ministry of Justice Jason Kuzminski, Director of Communications & Public Engagement, BC Ministry of Justice
Meeting Title/Topic: Lawyers Talking to the Media
Synopsis: Do any words put more fear in the heart of deputy ministers and executives alike? We all see it happen – badly, sometimes – and occasionally one wonders how something as basic as a lawyer talking can go wrong so fast. Join the CBABC’s Public Sector Lawyers’ Section (in Victoria, and in Vancouver by Webinar) in hosting two veteran public-sector lawyers with extensive experience in speaking to the media..
January 17, 2017
Guest Speaker: Michael Kleisinger, staff lawyer at the Law Society of BC
Meeting Title/Topic: Vexatious Litigants: Who They Are, What They Do and How To Deal With Them
Synopsis: Most public sector lawyers come across vexatious litigants at some point in their practice. Vexatious litigants present a range of unique challenges and lawyers should take care when they are working on a file involving this type of litigant. Mr. Kleisinger will speak about the types of behaviours to expect from vexatious litigants and what may be motivating those behaviours. Mr. Kleisinger will also discuss strategies for effectively managing files involving vexatious litigants and point to resources that may assist lawyers in these situations.
March 1, 2017
Guest Speaker: See previous.
Meeting Title/Topic: Reprise of Vexatious Litigants: Who They Are, What They Do and How To Deal With Them
Synopsis: See previous.
March 29, 2017
Guest Speakers:Liliane Bantourakis, Department of Justice Canada and Eva Ross, BC Ministry of Justice
Meeting Title/Topic: Misfeasance in Public Office: The Public Tort
Synopsis: Liliane spoke to the nature, purpose and elements of this tort. In particular, misfeasance in public office is a tort available to private citizens for public actions that affect them and they believe to be wrongful. There are many lofty definitions of the aim of this tort, which speak to upholding the rule of law, etc. The seminal case is Roncarelli v. Duplessis, [1959] S.C.R. 121.
In terms of the elements, they are as follows:
1) Public officer
2) Unlawful act
3) State of mind
4) Compensable harm
Each element was discussed, particularly state of mind, where Category A claims involve targeted malice and Category B claims involve an unlawful act or ommission with a known adverse impact on the plaintiff(s).
Eva discussed pleadings and evidence necessary to make out misfeasance in public office claim.
She noted that where an action can be judicially reviewed, it may be argued to be covered by this tort. Further, while applications to strike can be made on inadequate pleadings, where the leading case is Odhavji Estate v. Woodhouse, 2003 SCC 69, it is difficult to have summary trials for this tort, as credibility is usually in issue and resolving the matter on affidavit evidence will not be satisfactory.
Eva noted that in Miguna v. Toronto Police Services Board, 2008 ONCA 799, the Ontario Court of Appeal emphasized that an inference of malice may still be open at the pleadings assessment stage, which makes motions to strike more dfficult. Nevertheless, it appears that both Category A and Category B claims have had limited success thus far, as establishing the necessary state of mind remains difficult.
Another deicsion of note raised by the speakers was Budgell v. Oppal, 2008 BCCA 349, where this Province's Court of Appeal affirmed Ross J.'s striking of a misfeasance action where she found that "even if the claim were amended to plead the invalidity of the impugned provision...neither present claims against the Crown, nor the individuals could be advanced" and held that the claim was an abuse of process.
May 30, 2017
Guest Speakers: Renee Mulligan, Legal Counsel in the Civil Policy and Legislation Office of the BC Ministry of Justice, Layli Antinuk, Senior Legislative Analyst, BC Ministry of Agriculture and Bradley Weldon, Director of Policy, Office of the Information & Privacy Commissioner of BC
Meeting Title/Topic: Exploring Specialized Public Sector Legal Positions: A Panel Discussion
Synopsis: Brad introduced himself and the work of the OIPC. He noted the three main functions of investigation, adjudication and policy-making. In terms of policy making, consultation and review oversight involves considering the policy implications of legislation, working with private sector stakeholders, and his department also gets involved in large scale systemic investigations. He provided some recent examples, including setting the record straight on privacy rights in the workplace in relation to statements by the Mayor of Saanich and seeking a changed approach to police information checks so that individual's privacy is maintained. He noted that with the growing interaction of technology, surveillance and big data analytics, privacy is a growing concern and issues are ones that OIPC is constantly working on. He noted that he manages 4-5 policy analysts and that his offices are hiring two adjudicators. He stayed on after a contract position because of the positive atmosphere of this workplace.
Layli introduced herself and her past work as a BC Road Safety Adjudicator. She noted that in this role, she had complete conduct of her files and was the sole decision-maker. Hearings took place over the phone and there was no cross-examination. Instructions would be provided to a very limited extent, particularly to self-represented persons, as most counsel who work in this area are familiar with the procedure. Legislative timelines are very tight, providing that a decision will be rendered within 21 days of a driving prohibiton. Most akin to a clerkship role. Once she learned the material (case law in this area), she felt ready to completely write a decision on her own, which was an empowering exercise in comparison to other roles where one must seek multiple approvals. One aspect of the work was contemplating BC Supreme Court scruity – adjudicator must be aware of that and it is a challenge to ensure one's analysis is sound. She also enjoyed the work for its very human aspect. She noted that about one decision must be written per day and that she woudl recieve about three files per day. She noted that not all adjudicators were lawyers and that Legal Services Branch counsel would provide advice on general matters and particularly where a re-hearing was concerned.
Renee introduced herself and her role as legal counsel in the Justice Services Branch. She noted her work is driven from the top, from the Premier’s office or a Minister and they are directed to prioritize specific legislative drafting over others. She noted that of her eight years of working in this role, five years were spent reforming the Limitation Act. She noted that most of the time her office conducts a public consultation of stakeholders and works with representatives - such as CBA subject matter experts and other experienced practitioners - to create “Advisory Groups” to support the reform process. She enjoys working with these lawyers who have devoted their careers to an area of law and can provide amazing, insightful feedback. An interesting aspect of the work is liaising between the legislature and legislative counsel - drafting briefing notes and cabinet submissions about how to proceed, taking that direction back to an advisory group and doing additional research, then deciding where to go with that. Before the drafting stage, a request for legislation is made and a lot of policy analysis goes into that, to demonstrate full consultation and consideration has been done. There are tight timelines for updated drafts and preparation of supporting documentation for the relevant Minister. Subsequently, legislation goes through first and second reading to the committee stage. So the projects can be very large, going on for several years, as well as small such as minor amendments. A particularly enjoyable part of the work is supervising co-op students, who bring enthusiasm and a fresh perspective. She also enjoys the fact that her job makes a difference in BC with a tangible result; however, she's only worked on two Acts that have gone to the legislature and where, after years of working on something, the instruction comes that the effort will not go ahead, it can be a challenge. She noted her workplace is really lovely.
Questions were asked about the specific nature of each role, such as how they work with Legal Services Branch lawyers as well as whether being a lawyer is a pre-requisite for the role.
June 8, 2017
Guest Speaker: Kevin Marks, President, BC Crown Counsel Association, Karen Truscott, Governing Council (Vancouver Region), Association of Justice Counsel and Sandra Wilkinson, President, Legal Services Branch Lawyers Association
Meeting Title/Topic: Exploring Specialized Public Sector Legal Positions: A Panel Discussion
Synopsis: This meeting was the Public Sector Lawyers Section's annual discussion of employment issues for public sector lawyers. The guest speakers, representing the Association of Justice Counsel, the BC Crown Counsel Association, and the Legal Services Branch Lawyers Association, discussed workplace issues facing their respective organizations, described labour developments over the past year, and forecasted upcoming labour issues and developments.
Comments and Observations of the Chair
I enjoyed going to Ottawa and seeing my PSL peers for the first time and the comparative and higher level exercise - just wish it had occurred sooner. Specific highlights of the section could be uploaded as I have report about that... In terms of my experience, I end up doing too much work as Co-Chair. I am happily stepping back and letting others move up the executive chain and our section is very good at ensuring turnover and mentorship and at providing a steady stream of brownbag lunch and learns to the wider membership. Not sure why the meeting info for previous question cannot be collected based on volunteer portal (I just manually cut and pasted from there, but it wastes time to do this). As PSL section, ongoing concerns around how to attract and retain lawyers whose employers are not going to pitch in with CBA fees and/or get lawyers to show up to our events. We did not manage to have a social event this year, but will try to do a joint section social next year. We are typically precluded from commenting or intervening on issues that have to do with our employers, so there is not a lot of action with respect to resolutions and reports.