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The Right Stuff . . .
The Family Practice of Russells Notaries Public
in Dundarave, West Vancouver: Notaries
Joy and Jack (at left and right), with baby
Jackson (future Notary), Isabelle, and Robin.
What does it
take to become a
BC Notary Public
?
• Strong entrepreneurial and people skills
• The highest degree of honesty and integrity
• University degree and 5 years’ related experience
• Fluency in English; other languages an asset
• Financial backing
• Dedication to serving the public
Those are the characteristics of a BC Notary Public.
There are 323 notarial Seals throughout British Columbia.
In some communities, Seals are available.
As a BC Notary, you will have the opportunity to enjoy
a rewarding career as an independent businessperson
who serves the public and sets the example of integrity
and trust for which Notaries are known throughout
the world.
If you have these qualities and are looking for a new
career path, consider our two-year program, conducted
through the Sauder School of Business Real Estate
Program, University of British Columbia.
For more information, please contact
The Society of Notaries Public of British Columbia
1-800-663-0343 or visit our Website
www.notaries.bc.ca.
P U B L I S H E D B Y T H E S O C I E T Y O F N O TA R I E S P U B L I C O F B C
FEATURES
EXECUTIVE DIRECTOR
Mediation Skills for the 21st Century
6
G. W. (Wayne) Braid
PRESIDENT
Mediation Matters
7
Chris Dupuis
KEYNOTE
Mediation Training Opens Doors to Growth
8
Val Wilson
People Fighting Like Cats and Dogs
10
Leanne Rebantad
Mediation: Up Close with Joe Boskovich
12
Tony DuMoulin
Photo credit: www.wildmanphotography.com
Theatre for Mediators
14
Carrie Gallant
COVER STORY
Other Thoughts On Mediation
18
Nigel Atkin
A Lifetime Mediation Skill: Dealing with Assumptions
20
Yuki Matsuno
How to Assist Clients to Resolve Their Disputes
22
Kenneth J. Glasner QC
Mediation: the BC Government’s Perspective
24
Erin Shaw
Mediation as Part of an Effective Client-Centred System 26
Sharon Sutherland:
Quintessential Cheerleader
for Mediation!
44
Contact Information for Programs
Mentioned in the Interview
47
Recommended Reading on Mediation
47
Kari D. Boyle
The Court Mediation Program in BC
28
Leanne Turnbull and Angela Mallard
Invoking and Participating in Mediation
in British Columbia
30
Alex Ning and John Kleefeld
Co-Mediating Couple Encourages Peace and Harmony
34
Rick and Carol Evans
The Value of Mediation in the Workplace
36
Sharon Charboneau
Real Estate Salespeople: Have You Ever
Been Involved in a Real Estate Dispute?
38
Annette Schattenkirk
Arbitration, Mediation, and Peer Judging in Real Estate 39
Don Andrews
ADR and its Role in the Commercial Lease
R. A. (Rod) Adam
4
The Scrivener
41
PROFILE OF A BC NOTARY: NANAIMO
Tiah Workman:
Living the Passionate Life
48
Where Are They Now?
Vernon Hargreaves
51
TRAVELS OF A BC NOTARY
Highlights of Esther Chiu’s
Return to The Holy Land
52
PRIVATE RECIPE
Lorne’s Kids’ Chocolate Puffy Cookies
57
Letters
57
Volume 15 Number 1 Spring 2006
New Partnership Will Benefit British Columbia 54
Spotlight on Good Works at
Camosun College and Capilano College 55
Current Notary Foundation Contribution
to Legal Aid Society of BC 56
Board of Governors 56
The Mix
The Right Stuff . . . 3
Services a BC Notary Can Provide 9
Business to Business 17
Editor’s 53
Wills & Estates
Mental Capacity and Marriage 58
Trevor Todd and Judith Milliken QC
Real Estate
Legally Speaking and Keyword Index 61
Gerry Neely
Land in BC
Recent Amendments to the Land Title Act:
a Torrens System of Immediate Fee Simple Title 62
Bob Reid
Harmony in the Workplace
Six Tips for Turning Around Negativity at Work 72
Carla Rieger
Technology
Winning the Paper Chase: a New Look at Scanners 74
Timothy Perrin
People 76, 77
What’s in a Name?
“A professional penman, a copyist, a scribe . . . a Notary.” Thus the Oxford English
Dictionary describes a Scrivener, the craftsman charged with ensuring that
the written affairs of others flow smoothly, seamlessly, and accurately. Where a
Scrivener must record the files accurately, it’s the Notary whose Seal is bond.
We chose The Scrivener as the name of our magazine: to celebrate the
Notary’s role in drafting, communicating, authenticating, and getting the
facts straight. We strive to publish articles about points of law and the Notary
profession for the education and enjoyment of our members, our allied
professionals, and the public.
The Scrivener
Published Quarterly by
The Society of
Notaries Public
of British Columbia
Editor-in-Chief Val Wilson
Legal Editors
Wayne Braid
Ken Sherk
Akash Sablok, Chair
Committee
Laurie Salvador, Vice Chair
Tiah Workman
Graphic Design Graffiki Design
Printing Grafikom Jasper
Courier Cheyenne Express
Magazine
Webmaster indesigns.ca
For Direct Contact with The Scrivener:
Voice: 604 985-9250
Fax: 604 985-0900
Website: www.notaries.bc.ca email: [email protected]
The Scrivener is published quarterly
by The Society of Notaries Public
of British Columbia.
Box 44, 1220 – 625 Howe Street
Vancouver, BC V6C 2T6
604 681-4516 All rights reserved. Contents may not be
reprinted or reproduced without written
permission from the publisher. This journal
is a forum for discussion, not a medium
of official pronouncement. The Society
does not, in any sense, endorse or accept
responsibility for opinions expressed by
contributors.
canada post: Publications mail
agreement No. 40010827
Postage Paid at Vancouver, BC
Return undeliverable Canadian
Addresses to circulation dept.:
The society of notaries public
of bc
Suite 1220 – 625 Howe Street
Box 44,
Vancouver, BC V6C 2T6
[email protected]
EXECUTIVE DIRECTOR
G. W. (Wayne) Braid
Mediation Skills
for the 21st Century
I
t is my pleasure to welcome
you back to our Scrivener.
Each issue brings its own flavor and
personality and eventually assumes a life
of its own. Miraculously, it all comes
together under Val’s experienced eye,
with the help of Ken Sherk who works
with me as the other legal editor.
I believe I can guarantee that
over the next 80 pages, something will
capture your attention and imagination
or you will discover a new concept that
you find downright appealing!
If you are a regular reader
of this magazine, please
contact us if you are
interested in submitting
an article…
Our Magazine Committee creates
the focus of every issue. As I work with
our Editor-in-Chief Val Wilson, I always
find it a challenge to visualize how each
article will be of interest to our readers
and how we can introduce enough other
material into the magazine to attract
readers who are not drawn to our theme.
I would like to take this opportunity
to thank all the contributing authors
who invest time to research their subjects
and provide articles for our readers.
©iStockphoto.com/Moodville
If you are a regular reader of this
magazine, please contact us if you are
interested in submitting an article on
a special project or subject appropriate
for our editorial environment. While we
cannot accommodate everyone and all
material, we would like to hear from you.
[email protected]
6
Over the past few years, there has
been a major focus within the legal
community—and within society—on
interest-based mediation. We explore
that topic in this issue, as well as other
forms of mediation.
We hear from a number of people
who practise in the field of mediation—
and from other professionals who
The Scrivener
use mediation skills—that mediation
training taught them important skills
that they apply in their daily business
practices and in their personal lives.
We are delighted to have Sharon
Sutherland as our Cover Story personality
and to feature her work at UBC. Our
President Chris Dupuis in his article
describes his experience during the
mediation training program conducted by
Sharon for BC Notaries. I was involved
in that initial program and regularly
use many of the skills I learned in that
course. I often refer to the print materials
and the textbook we used as a guide
during that week.
To live and work in a world where
there is little or no conflict is, of course,
impossible. To live and work in a world
where we can manage conflict and
where we can help people reduce their
stress and anxiety in day-to-day lives is,
however, something we can strive to add
to our own individual abilities.
Meditation brings wisdom.
Lack of mediation leaves ignorance.
Know well what leads you forward and
what holds you back and choose the path
that leads to wisdom.
That quote is from the Buddha,
some 1500 years ago.
Maybe mediation is not so new after all!
Happy reading! ▲
PRESIDENT
Chris Dupuis
Mediation Matters
T
his issue of The Scrivener
pays homage to the art of
mediation and the artists
themselves, the mediators.
Mediate, as defined by Oxford:
To intervene between people
in a dispute to bring about an
agreement or reconciliation, e.g.,
Wilson attempted to mediate
between the powers to end the war.
I prided myself on knowing what
the problem was, telling my solution to
everyone concerned, then standing back
to admire my handiwork.
Then about seven years ago, I had
the privilege and pleasure of participating
in the first-ever mediation training
provided to members of The Society of
That education changed my
perception. I saw I could have more
empathy for my clients and their needs.
Notaries Public. My world was opened
to mediation and alternate dispute
resolution, which changed the manner in
which I now practise.
Sharon lead us through “mock
mediations”; we role-played in controlled
mediation situations under the watchful
eye of our respective coaches.
Photo credit: www.wildmanphotography.com
Then an active practising Notary
for 15 years, I had perceived myself and
my role as a dictating mediator. Whether
dealing with a somewhat anxious vendor,
stressed-out purchaser, or a borrower of
large sums of money, I felt competent
in assisting my clients in their various
journeys by offering my opinion as if it
were their own.
Albeit somewhat stressful, I especially
enjoyed the challenge surrounding
complex transactions where an issue was
in dispute—perceived or otherwise—and
I could smooth the waters.
• have them conclude or reconcile
their situation to their satisfaction,
not necessarily my own.
I must admit that my
mediation training has
made me a better Notary.
From studying mediation with
UBC’s Sharon Sutherland, our Cover
Story personality, I soon discovered I
had been trying to “fix the problem”
by lending my expertise, offering an
opinion, and managing my clients’ files.
Some of the valuable lessons I
learned from mediation are that when a
situation involves dispute, I must:
• take the time to listen;
• take direction from the people
involved; and
The Scrivener
Mediation, like the practice of a
BC Notary or any other professional,
is something that gets better with
repetition.” Those who are good at it
become great, as athletes do, when they
draw upon past experiences and analyze
their performance to hone their skills.
I have come to appreciate the role
of the mediator. I look upon them as
artists. Every mediation is unique, as
is every painting. A great mediator
realizes that mediations take on different
characteristics and need different
approaches at various times.
I must admit that my mediation
training has made me a better Notary.
I listen and empathize while reiterating
my clients’ particular concerns. Although
I tend to lead with my advice, I realize—
now more than ever—that ultimately
the clients must make the decisions on
issues. After all, they will be living with
the results that those decisions create. ▲
7
KEYNOTE
Val Wilson
www.WildmanPhotography.com
Mediation Training
Opens Doors to Growth
M
any disputes in BC
today are being
resolved through
mediation. Before involving the
courts, more legal professionals
are recommending that their
clients seek the services of a
professional mediator.
Why? The process of mediation can
result in faster solutions that are more
cost-effective than litigation.
In our Cover Story, Sharon
Sutherland says she continues to be
surprised by the perception that she
must have chosen mediation to avoid
litigation. She maintains she “enjoyed
litigation but found my clients didn’t
usually enjoy it as much as I did.”
The process of mediation can
result in faster solutions…
trampolines (she is a former trampoline
instructor) to help her students
understand the mediation experience.
I push my students to be creative
and to take risks in their approaches
to both learning and mediating.
One way is by guiding them through
image theatre exercises where we
create physical images of conflict
and our roles as mediators. In an
image theatre exercise, the spectactors—participatory audience
members—share their impressions
of the image. I might also share
my own intentions about what I
A viable alternative to litigation,
mediation can give participants a feeling
of control in the proceedings and, in
many instances, satisfaction with the
outcome they have helped create. It can
also save both sides time and money.
8
Sharon created the diving image
for her students as a reflection on
mediating. The trampoline skill she is
demonstrating is a front three-quarter,
also known as a “suicide dive.”
At the end of her Cover Story,
Sharon offers Recommended Reading on
Mediation.
Ken Glasner strongly recommends
the book, Beyond Reason, Using Emotions
as You Negotiate, by Roger Fisher and
Daniel Shapiro. The authors talk about
the roles that positive and negative
emotions can play during mediation.
In another slant on the topic, Nigel
Atkins notes we often mediate with
ourselves—for example, If I eat that
delicious piece of triple-chocolate cake right
now, I promise I will work out at the gym
tomorrow!
Currently, 27 Notaries trained in
the art of mediation are listed on the
BC Court Mediation roster. Thoroughly
enjoying their mediation experiences,
these Notaries are making a real
difference in helping resolve problems for
many individuals in our province.
The skill of effective mediation
requires wisdom, life experience,
expertise specific to the situation,
patience, and the sincere desire to help
the parties come to agreement.
Sharon uses her extensive training
in drama and theatre and her love of
am trying to depict . . . risk-taking,
practice, fun, etc.
Sharon in “Suicide Dive”
The Scrivener
I believe that mediation training is
invaluable for stimulating growth—at
work, at school, at home, and at play . . .
anywhere we are interacting with other
people. ▲
Services a BC Notary Can Provide
•
Affidavits for All Documents required at a Public
•
Certified True Copies of Documents
•
Commercial Leases & Assignment of Leases
•
Contracts and Agreements
•
Easements & Rights of Way
•
Estate Planning
•
Execution/Authentications of International Documents
•
Health Care Declarations
•
Insurance Loss Declarations
•
Letters of Invitation for Foreign Travel
•
Manufactured Home Transfers
•
Marine Bills of Sale & Mortgages
•
Marine Protestations
•
Mortgage Refinancing Documentation
•
Notarizations/Attestations of Signatures
•
Passport Application Documentation
•
Personal Property Security Agreements
•
Powers of Attorney
•
Proof of Identity for Travel Purposes
•
Purchaser’s Side of Foreclosures
•
Representation Agreements
•
Residential & Commercial Real Estate Transfers
•
Restrictive Covenants & Builder’s Liens
•
Statutory Declarations
•
Subdivisions & Statutory Building Schemes
•
Wills Preparation
•
Wills Searches
•
Zoning Applications
D.A.
Business Purchase/Sale
relecture
•
rédaction
Authorization of Minor Child Travel
client: Défense nation. date /modif.
•
épreuve à
Registry within BC
Some BC Notaries provide these services.
•
Marriage Licences
•
Mediation
•
Real Estate Disclosure Statements
dossier: DND-05514
Over 280 locations to serve you
For the BC Notary office nearest you, please call
1-800-663-0343
or visit www.notaries.bc.ca.
The Scrivener
9
FEATURE
Leanne Rebantad
People
Fighting Like Cats and Dogs
D
isputes between wild
animals are usually
settled quickly, with the
more powerful animal winning
by destroying the loser.
Disputes between people in our
current adversarial litigation system are
not usually settled quickly; the winner is
often the party with the most financial
resources. Litigation is like war, with
money being the equivalent of weapons.
Money equals power.
You may have heard the old saying
about people “fighting like cats and
dogs.” Cats and dogs do not usually like
each other, yet are quite often found
living together in the same residence
with their human owner.
Why do some cats and dogs co-exist
peacefully and others do not? Perhaps it
is because of the intervention of a third
party neutral—the human. Think of the
cat and dog as the parties in a dispute.
They both have a common interest—
both want to live inside the house and
have an ongoing relationship as members
of their household.
10
It is unlikely they will settle their
conflict without the intervention of
a third party neutral. After several
skirmishes with wins and losses for each
side, the human owner may decide to
intervene.
Litigation is like war,
with money being the
equivalent of weapons.
Money equals power.
If their human owner acts as an
arbitrator, the result may be: “The cat
shall now reside inside the house and the
dog shall reside outside.” Sounds like
litigation. Is that the best result for both
parties? The cat might think so.
If the human owner acts as a
mediator, more possibilities open up
to the parties. By discovering the true
interests of the parties, the end result can
be more satisfying and possibly longer
lasting.
Both cat and dog want to live in
the house. By exploring their individual
interests, the parties find the cat wants to
The Scrivener
sleep by the fireplace and the dog wants
to sit by the big window overlooking
the street. The parties have reached their
own agreement with the assistance of a
mediator.
One advantage of mediation is that
the session is conducted in a private
room and you are negotiating face to face
with the other party in the presence of
the mediator. The confidential setting as
opposed to a public courtroom can be
of benefit to both parties. Small-town
courtrooms often have several local
citizens who look forward to attending
each court session so they can share the
details with friends and neighbours. They
consider it real-life television. That can
be damaging to personal and business
reputations in a small town.
You may attend mediation with or
without your lawyer. You should first
consult with your lawyer as to your legal
rights. If you do not communicate well,
it may be advisable that you attend the
mediation with your lawyer.
Mediation is not always successful.
The parties should have a desire to settle
their disagreement. Some people, like
animals, use aggression to dominate and
take what they want.
No one likes to be told
what to do. We all like to
have input.
Most of us will experience at some
point in our lives a conflict we just can’t
resolve.
• Maybe you are forced to work with
someone you don’t like and the
situation has escalated to a union
grievance or a decision to quit your
job.
• Perhaps a dispute with a neighbour
has caused you to consider moving.
• Maybe you are unhappy with your
new home purchase because you
feel the seller did not disclose some
problems with the home.
No one likes to be told what to
do. We all like to have input. If you
are unable to work out a disagreement
directly with the other party, try
mediation before proceeding to
litigation. You have nothing to lose,
other than a few hours of your time.
Not every cat and dog can live
together. Sometimes the decision
must be made to separate them. If the
mediation does not work out, then take
it to arbitration or litigation.
Many trained mediators are
available. For information and assistance,
please contact the BC Arbitration and
Mediation Institute (www.amibc.org)
and the BC Mediator Roster Society
(www.mediator-roster.bc.ca).
Remember: mediation can give you
some control over the resolution of your
dispute. ▲
Leanne Rebantad is an experienced
Provincial Court Mediator and arbitrator
who practises as a Notary in Powell
River on BC’s Sunshine Coast. She
is a member of BC Arbitration and
Mediation Institute and is on the Civil
Roster of the BC Mediator Roster
Society.
[email protected]
The Scrivener
11
FEATURE
Tony DuMoulin
Mediation:
Up Close with
Joe Boskovich
W
hile I personally have
had only limited
experience with the
mediation process— whether sitting
as a mediator or representing a client
participating in the mediation—I do have
the benefit and good fortune of being a
longtime law partner of one of Vancouver’s
busiest and most experienced mediators,
Joe Boskovich, who conducts anywhere
from 95 to 150 mediations a year.
I have always been curious about
what really makes a successful mediation
tick, so I decided to sit down with Joe
to see if I could find the “magic” from
someone who has successfully conducted
over 3000 mediations and still finds
satisfaction doing this work.
The following interview is the result.
TD: How long have you been a
mediator? How many years had
you practised law when you began
mediating?
JB: I’ve been a mediator for 20 years
now, since 1986. At that point, I had
been practicing law for 16 years.
TD: What do you consider the essential
skills of an effective mediator?
JB: One cannot give a simple answer to
this question because it is very subjective.
You could ask a dozen people who have
used one particular mediator for their
opinion of him and you will get a dozen
different answers.
12
My view is that a mediator must
first be a good listener and be empathetic
without necessarily agreeing with the
position of one party or the other. In the
same way, the mediator must be seen
to be totally impartial, so that when
the mediator speaks to the parties, they
trust he is actually trying to assist them
in resolving the dispute. Finally, a sense
of humour and patience are two other
essential characteristics.
When the parties to a
conflict cannot resolve
differences on their own,
mediation is a suitable
remedy…
Some hold the view that as a
mediator, I do nothing—others, that I
do magic—but in reality, I am just there
with some experience, trying to help
resolve a dispute.
TD: What makes a dispute capable of
settling at a mediation?
JB: In our world, conflicts exist all
around us. When the parties to a conflict
cannot resolve differences on their own,
mediation is a suitable remedy—be it in
the family, the school, the workplace, in
government, in labour relations, between
countries, or in the settling of a simple
lawsuit. A third-party mediator has been
shown effective in bringing litigating
parties to settlement.
The Scrivener
The interesting myth about the
success of mediation is that, in any
event, 98 percent of all civil lawsuits
are resolved before going to trial. So
in reality, the legal profession has been
engaged in a settlement system all along,
even though, traditionally, mediation is
seen as an alternative to litigation.
The trend in North America over the
past 20 years is a growing realization that
mediation is a viable process for resolving
disputes. By and large it has been
client-driven because potential litigants
recognize they want an early solution to
avoid spending a lot of money on the
litigation process. Naturally, the legal
profession has had to respond.
TD: What techniques do you most
often employ to encourage parties to
reach a settlement?
JB: The techniques used in the process of
mediation will vary in each case, because
the parties are always different, their
expectations are different, their perception
of the issues is different, and the degree of
emotional attachment to their positions
varies widely from person to person.
Often litigants interpret facts and
events in ways that tend to support what
they want to believe and ignore anything
that suggests they might be wrong. I ask
parties at the beginning of the mediation
not just to listen to what the other side
is saying but to try—and I emphasize
the word try—to understand what the
other side is saying. Throughout the
mediation, you assist the parties in trying
to understand what the other side is
saying without necessarily agreeing with
the position.
The mediator emphasizes right at
the beginning that at mediation, there
are no winners and no losers, only a
settlement that both parties have agreed
to live with. If there is even a tiny bit of
that understanding flowing from side
to side, the mediation is on track for a
possible settlement.
To put this another way, the
agreement at which the parties arrive
is not a compromise, as it is often
described, but an understanding of
where the other party is coming from
and recognition of that understanding by
arriving at the resolution.
A reality-check with the parties is an
important technique most mediators use.
We ask, “What will happen if this case is
not settled? What will the court do with
it?” That is also called a risk analysis.
Then when offers are put on the table,
even unacceptable offers, a mediator
will often frame the proposal as a gain—
something very concrete that the parties
have gained from the mediation process
and that they risk losing by walking
away from the mediation. That is very
helpful for moving the parties from their
previous positions.
TD: Describe your most challenging
mediation. Was there a “breakthrough”
moment that enabled a party to move
from a fixed position? What was it?
JB: Again that is a very difficult question
to answer because the simplest of issues
can pose a challenge to a mediation.
You look at the dispute and hear the
opening statements and say to yourself:
this should resolve in a relatively short time.
Those have been the most challenging
mediations because of the parties and
their intransigent positions. I have had a
few mediations that have been extremely
challenging and that have gone on to trial.
One in particular involved an oral
surgeon who did major orthodontics
reconstruction. The plaintiff patient had
undergone a procedure that turned out to
be unsuccessful, requiring further surgical
procedures. The patient developed
psychological problems, together with
her physical problems, that left her,
allegedly, disabled and unemployable.
She sued the surgeon. Before trial, I
mediated that case. We spent nine hours
but, at the end of the day, the parties
were still $2,000,000 apart.
…the agreement at which
the parties arrive is not
a compromise, as it is
often described, but an
understanding of where the
other party is coming from…
most parties do try harder and succeed in
moving beyond their comfort level.
TD: Do you ever conduct mediations
without lawyers present? How are those
mediations different?
JB: I have conducted mediations where
there are no lawyers present, both
informally, between family members,
for example, and formally, in a true
mediation context. It is a different
process because you have to resist
advising the participants on the law,
if there are some legal issues involved.
Many of the family law mediations are
done without lawyers present. If there is
a settlement, the mediator then has to
send each party to a separate lawyer to
review the terms of settlement.
The difficulty with the mediation
was that the defendant surgeon saw fit
not to attend the mediation. I intended
to call it off because it was obvious to
me that this plaintiff had a need to
confront the defendant with her position
and situation. The fact that he didn’t
show up, I believe, made her feel he was
adding insult to injury that she couldn’t
confront him with the situation.
TD: What advice would you give to
a party who needs to prepare for an
upcoming mediation?
This case went to trial. She won the
case and the award given by the judge
was an amount that could have been
achieved at mediation if the process had
not been sidetracked. This case was heard
seven or eight years ago and is still before
the courts. I understand it is going to the
Supreme Court of Canada.
Take cues from the mediator, who
is likely more objective with what is
happening than the parties themselves.
Try to generate settlement options that
haven’t been discussed before.
You asked if there is a “breakthrough
moment” in a tough mediation. I would
say generally that every case settles for
different reasons. But there is a point
in every mediation that could be called
a breakthrough moment or a sense of
“detecting a DNA of settlement”; this is
when the parties have moved to a point
where they feel uncomfortable moving
any further, yet don’t want to let go of the
opportunity to settle the dispute.
It is normally at this point that I
remind them that they are in control of
settling this case or not and ask them to
consider the risks in not settling when
they have come this far. At this point,
The Scrivener
JB: I am assuming it is without lawyers
present. I would treat the process as a
negotiating session. Be open-minded.
Emphasize the strengths of your case,
yet realize its weaknesses; they are the
strengths of the other party’s case.
I would try to step inside the other
side’s shoes by understanding their needs,
interests, and perspectives, but without
agreeing with them. Be patient and don’t
give up on the process.
If the alternative is litigation, parties
would do well to remember the words
of Blanche Dubois in A Streetcar Named
Desire . . . because they, too, will become
dependent on the kindness of strangers.
TD: Thank you for these insights, Joe. ▲
Tony DuMoulin is a senior partner
in the law firm DuMoulin Boskovich,
Lawyers.
Voice: 604 669-5500
Fax:
604 688-8491
[email protected]
13
FEATURE
Carrie Gallant
Theatre for
Mediators
T
herein resides the essence
of theatre: in the human
being observing itself.
The human being not only “makes” theatre:
it “is” theatre.
Augusto Boal, The Rainbow of Desire
Creativity is an essential component
of mediation and any “problemsolving” endeavour. A daunting task for
mediators can be to inspire parties in
conflict to be creative. A mediator who
practises creativity will arguably be better
equipped to inspire creativity in the
parties. In The Dynamic of Mediation:
Is Creative Genius the Key to Successful
Mediation?1, Stephen Goldberg said:
Creativity is a very important
mediation skill and can be of great
aid in bringing about successful
dispute resolution. Unfortunately…
there are not enough highly creative
people to make mediation successful
as a widely utilized process across the
disputing universe.
14
learning, growth, and change. Some
experts suggest that true creativity comes
to a professional once he or she has
developed the core competencies and is
now able to “play” with his or her skills
and knowledge to find creative solutions.
Creativity is a very
important mediation skill
and can be of great aid in
bringing about successful
dispute resolution.
Diane Ackermann notes in Deep Play
that “play…is our brain’s favourite way
of learning and maneuvering...it gives
us the opportunity to perfect ourselves.”
At CreativityZone we believe creativity
can be learned both during and after
competency development and should be
practised regularly. Flexing your creative
muscles keeps them in shape!
Well, assuming Goldberg is right—
and some would argue he exaggerates—
how do we enhance the creativity of
mediators and conflict-resolvers?
Theatre games and tools hold
particular relevance for mediators. Theatre,
in all its forms, is about stories, usually
constructed around a conflict, with a crisis
and generally some form of conclusion.
Theatre games and tools provide actors
with opportunities to play with and
enhance their skills for performance.
Creativity experts suggest that play
and breaking routines are essential to
Theatre games and tools in
mediation training likewise encourage
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play and skills enhancement and, within
mediation, help retain a focus on the
stories and the conflict, rather than on
arriving at conclusions that otherwise
may be artificially dictated by rules and
decision-making processes.
Many of the lesser known forms
of theatre lend themselves particularly
well to mediation training and practice:
improvisational, forum, and playback
theatre and sociodrama each offer a range
of tools and exercises that may be used
in mediation in various ways, either for
training, as a warm-up for the mediator,
or within mediation as a tool for
enhancing communication between the
parties or generating ideas for resolution.
As a learning tool, theatre games and
exercises provide a way to practice and
develop greater facility and flexibility
with mediation skills, enabling the
mediator to dance fluidly and make 180
degree turns with ease.
Other experts in mediation and
negotiation are beginning to explore
the relationship of theatre to mediation.
Robert Benjamin has examined
mediation through a theatre lens,
describing “mediation as theatre and
negotiation as performance art” (2001).
The October 2005 issue of
Negotiation Journal included a special
section on improvisation and negotiation
and mediation, drawing from a conference
at the Harvard Project on Negotiation.
Our exploration at CreativityZone has
been in researching the connections and
in utilizing theatre tools in our teaching,
training, and mediation.
Improvisation:
Expect the Unexpected!
Mediation, like improvisational theatre,
is a largely unscripted and somewhat
unpredictable experience. Like
improvisers, mediators are performing a
role and act and react according to the
actions of the other “players.”
Preparation is essential to both: for
the mediator—to know the identity
of the parties, to anticipate the issues,
and be prepared for the unexpected,
and for the improviser—to know the
other players and to have practised
his or her skills through exercises and
games with the other players prior to the
performance.
Many of the exercises and games
are also incorporated directly into
performance. The keys to both
improvisation and mediation are
practice, practice, practice.
Like improvisers,
mediators are performing
a role and act and react
according to the actions of
the other “players.”
Many of the skills of an improviser
parallel the skills of a mediator. Three
important parallel skills are “listening,”
“building on offers,” and “spontaneity.”
The basis of improvisational theatre
performance and games is the
“Yes, And” stance. The focus is on
recognizing an offer and accepting
it. All offers are accepted: “Yes.” The
creative idea is revealed by building
upon the offer: “And.”
Listening skills are important to
an improviser to recognize an offer.
Spontaneity is the essence to building
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on the offer—which is what follows
the “And” and generates the creative
idea. Spontaneity in improv often leads
to hilarious results; spontaneity in
mediation can lead to the generation of
a creative idea that would otherwise not
have arisen. Improvisers rely on dozens
of games and exercises to develop and
practise these skills.
Forum Theatre:
Show Us What You Want
Forum theatre and its related forms
were developed by Augusto Boal in
Brazil during the 1960s, where he
experimented with various forms of
theatre. Boal began by developing a
process for audience members to stop
the action in a play and suggest different
actions for the actors, who would then
carry them out.
In one seminal performance,
a female audience member was so
frustrated and angry that the actor in the
scene could not understand and carry
out her suggestion; Boal invited her
15
onstage to show what she wanted—and
the “spect-actor” was born.
Boal discovered that when audience
members became spect-actors, they
became empowered to not only imagine
change, but to actively practise the
change; then the entire audience is
able to reflect collectively and become
empowered to generate social change.
The result is a dialogue about
the issues that can lead to new
understandings, an examination of the
alternatives, and a “rehearsal” for reallife situations. In a sense, forum theatre
is a form of collaborative dialogue in
practice, although its essential purpose is
not about arriving at a solution.
Many of the exercises within forum
theatre include image-making and
using the body to sculpt images. Some
exercises also overlap with playback
theatre and sociodrama exercise. In the
context of mediation, image theatre and
auto-sculpting can be utilized to depict
images of conflict or emotional states.
Difficulty expressing emotions is often
experienced by one party or another
during mediation; having the expression
received without judgment or defensive
reactions is also a challenge.
Shaping one’s body into a depiction
of conflict, the impact of conflict, or an
emotional state allows the “speaker” to
show what perhaps he is unable to say and
allows the viewer to see what perhaps she
is unable to hear in the spoken words.
And rather eloquently, sometimes, the
viewer sees something the sculptor did
not consciously intend, but can admit
was present and important.
We have used both improvisational
and image theatre techniques in the
university classroom and professional
workshops and are beginning to
use them in mediation, as well.
Some exercises lend themselves well
to certain contexts; the image and
sculpting exercises appear to facilitate
communication particularly well in
family and child protection contexts.
16
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There is a vast array of further
exercises, games, and tools that can be
explored by mediators who wish to
enhance their creativity and to flex their
creative muscles. If you would like more
information or to enquire about creativity
workshops, please contact CreativityZone
at [email protected]. ▲
1.
Paper presented at the 1996 World
Intellectual Property Organization
(WIPO) Conference on Mediation.
Resources
Benjamin, R. D., “Mediation as Theatre
and Negotiation as Performance
Art,” ACR (Association for Conflict
Resolution) Family Section Newsletter,
Fall 2001.
Boal, A. (1995), The Rainbow of Desire:
The Boal Method of Theatre and Therapy,
transl. A. Jackson. London: Routledge.
Boal, A. (1992), Games for Actors and
Non-Actors, trans. A. Jackson. London:
Routledge.
Diamond, D. (1991), A Joker’s Guide
to Theatre for Living (2004 rev. ed.).
Vancouver, BC: Headlines Theatre.
Koppet, K. (2001), Training to Imagine:
Practical Improvisational Theatre
Techniques to Enhance Creativity,
Teamwork, Leadership and Learning.
Sterling VA: Stylus Publishing LLC.
Salas, J. (1996), Improvising Real Life:
Personal Story In Playback Theatre (2nd
ed.). New York: Tusitala Publishing.
Carrie Gallant, BA, LL.B., of Gallant
Solutions Inc. and CreativityZone, is a
mediator, negotiation strategist, and
coach. She was the legal consultant
on North America’s first and only
known legislative theatre project with
Headlines Theatre in 2004, Practicing
Democracy. This article draws on her
previous articles, “Forum Theatre: A
Brief Introduction, A Bit of History and
A Glossary Of Terms” (2004); “The
Joker and Forum Theatre: Lessons for
Mediation Practice and Pedagogy”
(2005); and (with Sharon Sutherland),
“Improvisational Theatre Techniques to
Enhance Creativity in Mediation” (2004).
Business to Business
BC NOTARIAL OPPORTUNITIES
From Time to Time . . .
a BC Notary practice becomes available, perhaps due
to retirement plans or relocation. Currently there are
opportunities in Cranbrook, Nelson, the Central
Fraser Valley, and the Lower Mainland.
For more information: Voice: 604 985-9250
Fax:
604 985-0900
email: [email protected]
The Scrivener
17
FEATURE
Nigel Atkin
Other Thoughts On
Mediation
M
ediation requires
transformation. That
in turn, requires
better communication with
and between others and within
oneself.
From world events to within each
and every one of us, these are times of
contentious change, the letting go of
assumptions, of potentially profound
growth, and of moving forward as best
we can in harmony and prosperity.
In times of change, it is important to
think differently, to evolve our language,
to explain options and consequences,
and develop new temporary assumptions
from which to base our actions. Perhaps
most important, we need to develop our
ability to change our own minds.
18
in the other weapons of choice, require
the personal skills of discernment to
choose from the many options afforded.
Decision-makers sometimes need wise
guides to help in the transformation of
their thinking.
The wider Middle East is
rife in conflict between
tribal beliefs and
traditions; the resultant
siege mentalities manifest
in daily violence.
Mediation has taken on a meaning
related to a process in which there is
a dispute or conflict whereby neutral
outside support is required to “mediate”
a disagreement.
The complexity of 21st Century life
ensures mediation is a growth industry.
There are more knowledge and more
choices to navigate now than just a few
years ago. The rise in the individual’s
physical and psychological mobility,
rapidly advancing communications
and other technology, the resultant
transparency, and the opportunity these
provide creates widespread and global
empowerment.
The International Stage
Globalization is often perceived as “new
frontiers” and many times globalization
conflicts with tribalism; that, in its extreme,
builds “barricades” to outside influence.
Fear of change, the lack of dialogue
and knowledge, the resultant hardened
positions can be seen everywhere—in
most organizations, in hometowns, in
government departments, within and
between communities, and at higher levels
where peacemakers and peacekeepers and
other mediators get involved.
Those realities, combined with the
individual’s rising power in voice and
In times of rapid change, as in the
times we are in today we witness literal
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tribalism in conflicts in flashpoints like
Iraq and Afghanistan.
We witness Canadian troops
attempting to work out relationships
with Afghani tribal warlords. Getting
in the tent just to talk is fraught with
danger and that might be the easy part.
The language, customs, tradition, beliefs,
and history of the people present even
larger challenges. The wider Middle
East is rife in conflict between tribal
beliefs and traditions; the resultant siege
mentalities manifest in daily violence. Is
there a better system for mediation than
democratic institutions?
In the early 1970s, I attended the
Sandhurst Military Academy Passing Out
Parade and noted then a dramatic change
in attitude. I loosely paraphrase what
I heard Conservative Prime Minister
Edward Heath say to young officers
graduating that day. He said, you now
have the finest training the UK can give
you in military history, strategy, and
battle tactics, but many of you are going
to Northern Ireland and will face crowds
of women with children in prams.
Mediating peace in UK streets
required yet another warrior skill.
On the ground, front-line mediation
between an individual soldier and a
potential combatant was an hourly
consequence of duty. Soldiers were
evaluated not so much on their ability
to win battles, but rather to mediate
specific incidents with people in their
own neighborhoods. This is difficult
work requiring multi-faceted training,
that of listening, communicating,
mediating, as well as the traditional
skills of soldiering and mental agility.
Witnessing Northern Ireland and
watching the news today from multiple
“mediated” perspectives—BBC, CBC,
NBC, CNN, Fox, Al Jezeera, the
potential hundreds of newspapers,
Websites, and magazines—we witness
similar encounters as occurred in Belfast
and Londonderry in the 1970s. Recent
events in New Orleans, cities in France,
even staid Sydney, Adelaide, and Perth
reflect the importance of mediating
disputes of service, respectful inclusion,
and diversity.
The flash and bang of the 24/7
global news today brings startling images
of conflict to viewers around the world.
Individuals thus empowered or stifled by
the potential effects of these images make
the mediating of public diplomacy and
strategic communication more difficult.
Frighteningly so, the growing number
of intelligent individuals with an agenda
know this.
Closer to Home
In the past 30 years, we have watched the
language of conflict at the international,
national, and domestic levels evolve from
those great classic one-liners: “surrender
or die,” “love it or leave it,” and “my way
or the highway” into wider acceptance of
programs of dispute resolution that are
not hallmarked by unilateral action and
the violence that often accompanies it.
Adversarial commercial litigation,
unproductive labour relations conflict,
court-based family and community
dispute resolution are all moving toward
mechanisms and processes to work things
out. Mediators in numerous fields work
with organizations and individuals. If
you are unable to get along or avoid a
conflict or a dispute at home or abroad, a
mediator can help. This is all good.
The rising of the mediator is also
a sign of the complexity of life today.
They are perhaps this century’s new
priests, doctors, psychologists, and other
forms of guides that reflect a need to
help individuals navigate their options,
discern interests, and plan for the future.
In many cases, a mediator’s good work
helps individuals avoid conflict and
dispute, resolve options, and tackle the
choices they face.
Without balanced
individuals, there are
consequences that often
lead to conflict in homes,
communities, and between
and among tribes and
nations.
Many people traditionally mediate
in our lives. Parents and other relatives
mediate children within family and
society; teachers mediate knowledge;
police mediate their ever-expanding beat;
the courts still mediate in extreme cases;
the church and television both mediate;
the Internet and peers also mediate much
in the lives of our children and in our
professions but, most important, in all of
this it still boils down to the individual.
It is at the individual level that
mediation is most often needed or
required. It is the individual who can
develop him or herself to make decisions,
to lead groups or organizations to move
things forward in concert as a group or
with other groups. It is also an individual
who sometimes wisely abdicates to
mediation.
If there is a marked rise in the
need for mediators, there must be a
corresponding rise in the need to help
individuals develop their capacity to
mediate things in their own lives. For
all the things needing discernment,
judgment, and choice, will there be
enough mediators to serve societies’
needs? The rate of change dictates that
people must become better at mediating
in their own lives, of accepting the
diversity of options presented in this
new century.
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Mediating Self
True democracy is said to be predicated
on an educated population that can
think and discern important questions of
the day. Common knowledge, common
sense within the common man and
woman are at the root of democracy as
we appreciate it. (Remember that truly
inclusive democracies are less than 100
years old. Women, Aboriginal people,
and non-White settlers know this.)
If the individual is vital to
democracy, how do we define a welladjusted, educated individual? One of
the key Aboriginal values in Canada is
the concept of balance between self and
others. Relationships with others, it is
believed, will be out of balance unless the
internal elements of the individual—his
or her spiritual, emotional, physical, and
intellectual well-being—are all strong.
If these four things are balanced
within an individual, then a family, indeed
a community and a nation, can all be in
balance. Without balanced individuals,
there are consequences that often lead
to conflict in homes, communities, and
between and among tribes and nations.
In times of change, the balance
between self and others starts with the
self. Mediating the balance within one
person might be the most important
challenge that we, as individuals, face.
A balanced individual with a strong
body, a healthy mind, and a good
heart, who is supported in spirit and
who demonstrates personal leadership,
mediates in his or her self, between self
and others, and knows when—and if—
mediation is required. That individual
recognizes that mediation requires
transformation, that communicating
with self and with others will involve the
death of certain assumptions, and that
new opportunities will arise and that all
will be well. ▲
Nigel Atkin, BSJ, MA, is a
communication consultant and
instructor.
Voice: 250 889-3349
[email protected]
19
FEATURE
Yuki Matsuno
A Lifetime Mediation Skill:
Dealing with Assumptions
A
s a mediator in private
practice, one skill I
constantly practise is
dealing with assumptions—
recognizing them, checking
them out, and letting them go if
they aren’t useful.
Sharon Sutherland—is now mandatory
for all BC notarial candidates.
The five-day mediation
course—spearheaded by
mediator, lawyer, and
UBC professor Sharon
Sutherland—is now
mandatory for all BC
notarial candidates.
Last February, I had the opportunity
to deal with assumptions when I had the
privilege of working as a mediation coach
with a group of notarial candidates. The
five-day mediation course—spearheaded
by mediator, lawyer, and UBC professor
©iStockphoto.com/Miroslaw Pieprzyk
I was surprised to hear the course
was taking place just before exams. My
assumption was that people approaching
a major, career-advancing examination
within a week would be stressed out
and hard to work with! When I met the
students, I was amazed that on the whole,
they seemed calm and prepared for their
final examinations and open to learning
about mediation. That assumption picked
up its heels and walked away.
20
During the one-week mediation
course, notarial candidates learn basic
mediation skills, communication skills,
and theories about culture and conflict.
On the last four days of the course,
students participate in role-plays in
small groups.
As coach, my role was to observe
and encourage the role-players and
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facilitate a feedback session at the end
of each role-play. Another assumption
I held about the students was that after
only three days of instruction, their skill
level would be—understandably—basic.
To my surprise, I had to let go of
that assumption, too. Many students
demonstrated advanced skills. They
posed excellent open questions and
listened reflectively. They paraphrased
with ease and skillfully carried out reality
checking. And in the feedback session
for one particularly provocative roleplay, one of the challenges the students
brought up for discussion was . . .
surprise! . . . the difficulty of letting go
of assumptions.
It takes practice over a lifetime to
develop this skill. Recognizing that you
hold an assumption is the first step.
How do I know what I know? is a handy
question to ask yourself about facts that
you hold to be true. So often we make
assumptions about another’s subjective
experience based on our own experiences
that, it turns out, may be unique to
ourselves.
For instance, my assumption that
the notarial candidates would be stressed
was based on my own university and
law school experience, where every term
during exam time I was very stressed and
difficult to be with.
The second step is checking out the
assumption. The best way to do this is
to gather information by asking open
questions, listening with an attitude of
curiosity, and keeping your mind open
to the possibility that the assumption
may have to be sent packing. I checked
out my assumption about pre-exam
stress by observing students and asking
them how the studying was going, how
they prepared for the exams, etc. I was
surprised by the answers I received
because they were so different from the
answers I would have given, had I been
in their place.
The third step is making a decision
about the assumption once you’ve
gathered the information. You can keep
it, modify it, or let it go. My decision
was to let go of my assumptions while,
at the same time, use the information I
gathered to understand the students with
whom I was working.
This points to the marvellous thing
about assumptions: Although they can
sometimes impede understanding by
getting in the way, when examined they
can be catalysts for understanding by
allowing new and better information to
be brought forward.
Dealing with assumptions—
admittedly at times difficult to recognize,
check out, and release—is ultimately a
useful tool in any communication or
mediation situation.
I look forward to exploring this and
many other mediation skills with notarial
candidates again in the future. ▲
Yuki Matsuno is a Provincial Court
(Civil) Mediator, an accredited Law
Society of BC Family Law Mediator,
and a member of the BC Civil Mediator
Roster. She loves to help parties resolve
their differences through mediation and
started her own teaching and consulting
business to do just that.
Voice: 604 738-1392
Fax:
604 677-4193
[email protected]
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21
FEATURE
Kenneth J. Glasner QC
How to Assist
Clients to Resolve
Their Disputes
The British humourist Jerome K.
Jerome wrote:
If a man stopped me in the street,
and demanded of me my watch,
I should refuse to give it to him.
If he threatened to take it by
force, I feel I should, although
not a fighting man, do my best to
protect it. If, on the other hand,
he should assert his intention of
trying to obtain it by means of
an action in any court of law, I
should take it out of my pocket
and hand it to him and think I
had got off cheaply.
We live in a cost-conscientious global
society—not just financial costs, but also
emotional and productive costs. Many
businesspeople want to resolve their
conflicts and get on with business. Many
times they would like to repair their longterm relationship with the other litigant.
For over 20 years, some of the
leading companies in the United States
have made a pact requiring them to use
ADR methods before going to court.
22
As a mediator, you must understand
product, process, and culture. By
product, I mean the subject matter in
dispute. Process is self-explanatory.
approach that will deal with those issues
and perhaps the underlying or side
issues. Attached to each of those issues is
the culture of the people involved in the
dispute, including their counsel.
We live in a costconscientious global
society—not just financial
costs, but also emotional
and productive costs.
There is no particular set time
when mediation is appropriate. In some
cases, it is just before trial or arbitration;
sometimes, it is prior to the issuance of
the writ, if not earlier.
Culture is sometimes defined as,
“what fish swim in.” It is all around us.
Each of us lives in many cultures that
affect the way we act and how we think.
The culture of those employed in the real
estate industry in the Lower Mainland
may be different from the culture of
colleagues practising in Prince George
or Kelowna. The culture surrounding
an ICBC motor vehicle accident case is
different from that of a fire insurance case,
an employment case, a real estate case,
a Wills Variation case, or a professional
association or self-regulating body case.
There is no one way to approach
the resolution of a dispute. Each case
presents specific issues and requires an
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A decision to attend a mediation is
not a decision to settle. It is a decision to
explore the possibility of settlement and
to see if settlement makes more sense
than the alternative.
At mediation the appropriate test
is whether the offer is better or worse
than proceeding without an agreement.
Sometimes this is referred to as BATNA
and WATNA: Best Alternative to a
Negotiated Agreement and Worst
Alternative to a Negotiated Agreement,
coined by Roger Fisher and William Ury
in their 1981 bestseller, Getting to Yes:
Negotiating Without Giving In.
• Mediation may result in a settlement.
• Mediation may result in reducing
the trial or arbitration from six
weeks down to three days.
• Mediation may result in a reality
check for your client.
• Mediation may result in a reality
check for you.
Commercial mediation is not
a “touchy-feely” form of mediation,
although it may deal with the needs,
wants, and fears of the parties. It is,
in many instances, hard-nosed riskmanagement analysis.
In British Columbia, a number of
rules require parties involved in civil
litigation to mediate.
1. Under BC Reg. 127/98, a party
involved in a motor vehicle accident
can compel the other party to
mediate.
2. Under BC Reg. 4/2001 of the Law
and Equity Act, a party can serve
a Notice to Mediate on the other
side, requiring that party to mediate.
There are some exceptions to that
rule under Section 2.
Additional rules are set out requiring
mediation, based upon what is commonly
called “Leaky Condo” litigation.
Commercial mediation is
not a “touchy-feely” form
of mediation, although it
may deal with…needs,
wants, and fears…
The courts are now cognizant of the
need of mediation to the extent that costs
may now be awarded against parties for
failure to mediate. (See Schwabe v. Lisinski
BCSC Victoria Registry 2005/09/13.)
In May 2004, the English Court of
Appeal dealt with the issue of the failure
to mediate. The case set out certain
factors that the courts will take into
consideration in awarding costs where
the plaintiff has been successful at trial
but should have attempted mediation.
(See Halsey v. Milton Keynes General NHS
Trust et al.)
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Many of our clients want a
resolution of their dispute and, if it can
be done outside the courtroom, the
client will seek that alternative with or
without our help. It is essential that
we master ways to assist our clients to
resolve their disputes. ▲
Kenneth J. Glasner, QC, CArb, has an
active practice in the areas of corporate,
commercial, real estate, and commercial
leasing. A founding member of the
BC Arbitrator’s Association Alternative
Dispute Resolution Subsection of the
Canadian Bar Association and the local
chapter of the Society of Professionals
in Dispute Resolution (SPIDR), he is a
member of the ADR Institute of Canada
Inc., a Trustee of BCICAC, and a member
of the Vancouver Maritime Arbitrator’s
Association. He has on occasion acted
as a panel member on discipline matters
for the Real Estate Council of BC.
Voice: 604 683-4181
[email protected]
http://glasnerqc.tripod.com
23
FEATURE
Erin Shaw
Mediation:
the BC Government’s Perspective
I
n 1996 the Ministry
of Attorney General
demonstrated its support for
ADR by adopting an ADR Policy
(http://www.ag.gov.bc.ca/dro/
policy-design/statement.htm)
and establishing the Dispute
Resolution Office.
On that foundation the ministry
has implemented a strategy to promote
the growth of collaborative dispute
resolution processes such as mediation
in BC, in both the public and private
sectors.
Support for collaborative dispute
resolution processes has grown as a
result of concerns that court processes
are overly complex and time-consuming
and are unaffordable to anyone but
the very rich. The number of trials in
the BC Supreme Court has dropped
to half of what it was 10 years ago and
an increasing number of unrepresented
litigants are appearing in both Supreme
and Provincial Courts.
System users feel alienated from a
justice system in which their problems
24
often become framed as unrecognizable
legal disputes over which they have little
control. Reports from around the world
have recognized these problems and have
universally recommended the increased
use of mediation and other collaborative
dispute resolution processes to enhance
access to justice.
Support for collaborative
dispute resolution
processes has grown
as a result of concerns
that court processes are
overly complex and timeconsuming…
Mediation is endorsed for a number
of reasons.
• It is effective in settling disputes.
• People who participate in mediation
are very satisfied with the process
and outcomes.
• Mediated agreements are more
durable because the parties have
crafted them themselves.
• Mediation offers the potential for
more creative settlements.
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• Mediation can help to preserve postdispute relationships (business or
personal) because it seeks to avoid
polarizing the parties.
• It is cheaper and faster than
litigation.
To stimulate and support the
growth of mediation in BC, the Dispute
Resolution Office (DRO) recognized
the need to increase opportunities
for mediation, to support mediation
infrastructure, and to promote culture
change in the way we seek to resolve
disputes. These objectives were pursued
within a framework of:
• working closely with stakeholders to
design and implement programs;
• implementing programs
incrementally; and
• carefully evaluating program outcomes
before expanding.
Supporting the Mediation
Infrastructure
The DRO has actively sought ways to
support the practice of mediation and
the provision of mediation services
within BC. Two key initiatives have
contributed to these objectives. First, the
DRO initiated a consultation process
that resulted in the establishment of the
BC Mediator Roster Society. The Roster
Society houses both a civil and a family
roster of mediators and is affiliated
with the Provincial Child Protection
Mediation Roster.
The Society’s Website provides
access to, and information about, a
pool of mediators who meet minimum
training and experience qualifications,
are insured, and are subject to a code of
conduct. More information about the
Roster Society can be found at http://
www.mediator-roster.bc.ca/.
The DRO has also worked with the
dispute resolution community to develop
mediation practicum opportunities.
While excellent mediator training has
been available in BC for many years,
there have been few opportunities for
mediators to gain the practice experience
required to qualify for various mediation
associations and rosters.
The DRO funds and works closely
with the BC Dispute Resolution
Practicum Society, which offers a
mediation practicum in Provincial
(Small Claims) Court as well as a family
mediation practicum. The Society
is currently working with the DRO,
the Ministry of Children and Family
Development, and the Law Foundation
to develop a child protection mediation
practicum.
Graduates of the Society’s practica,
a number of whom are Notaries, now
deliver mediation services across the
province. For more information on
practicum opportunities, see http://www.
courtmediation.com/.
Mediation Opportunities
The DRO has sought to stimulate the
use of mediation using legislation and
court rules. In 1998 the Ministry of
Attorney General implemented the
first Notice to Mediate regulation. The
Notice to Mediate process stops short of
fully mandatory mediation. Under the
Notice to Mediate regulations, one party
can compel the other parties to a case to
attend a mediation session.
Initially for motor vehicle personalinjuries matters only, the Notice to
Mediate is now available for almost all
Supreme Court cases. An independent
evaluation of the Notice to Mediate
(Motor Vehicle) found that in 71 percent
of cases, all issues were settled and in 75
percent of cases, all or some issues were
settled. It also found that participant
satisfaction rates were very high.
While excellent mediator
training has been
available in BC for many
years, there have been
few opportunities for
mediators to gain the
practice experience
required to qualify
for various mediation
associations and rosters.
Small Claims Rules 7.2 and 7.3
provide a framework for voluntary,
mandatory, and Notice to Mediatedriven mediations. Since 1998 over 8000
Small Claims cases have been mediated
through the Court Mediation Program
operated by the Practicum Society
The DRO has also had successful
partnerships with other government
ministries. A good example is the Child
Protection Mediation Program delivered
in conjunction with the Ministry of
Children and Family Development.
The DRO developed a unique
model of mediation for these cases that
results in high settlement and satisfaction
rates. An evaluation of the pilot reported
that 92 percent of all issues referred were
settled; the overall satisfaction rate was
6.2 on a 7 point scale. With the support
of the Legal Services Society, MCFD,
and the DRO, the use of child protection
mediation is growing across the province.
The DRO promotes the use of
mediation within government on many
fronts. We work with treaty tables on
the development of dispute resolution
chapters and with tribunals to integrate
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a broad range of dispute resolution
methods into their processes. We also
facilitate dispute resolution training
and support public legal education and
information.
Promoting Culture Change
The Australian Law Reform Commission
has said that long-term reform of the
civil litigation system may rely as much
on changing the culture of legal practice
as it does on procedural changes. We see
culture change as critical to the success
of justice reform. This culture change
involves changing the way we think
about and respond to conflict, focusing
on the needs of the users of the justice
system instead of those working in it,
and openness to changing roles in the
justice system.
We have seen significant shifts
in attitudes over the last 10 years
as the justice system has worked to
accommodate the growing interest in
collaborative dispute resolution—the
next stage.
The next stage, however, will involve
more than accommodation; it will
involve fundamental shifts in how the
system is structured. The recent report
of the Family Justice Reform Working
Group is a significant example of the call
for such fundamental shifts (http://www.
bcjusticereview.org/working_groups/
family_justice/final_05_05.pdf ).
For most family law cases, the
adversarial system does not work well.
The report goes further that proposing
increased use of consensual processes
such as mediation as alternates to
litigation. It proposes that in family
cases, consensual processes should
become “the norm.”
The DRO continues to work with
mediators, judges, legal organizations,
and other justice system partners to find
better ways to resolve disputes within the
court system and across government. ▲
Erin Shaw has been the Director of the
Dispute Resolution Office of the Ministry
of Attorney General since 2001.
[email protected]
25
FEATURE
Kari D. Boyle
Mediation as Part
of an Effective
Client-Centred System
O
ur justice system has
been focused for too
long on the needs of the
courts and the legal profession;
it has become inaccessible and
even irrelevant for many people.
them to resolve the problem directly.
Others require other kinds of assistance,
including intervention by a neutral
third party to assist them to resolve
the problem with the other party or
parties. This intervention may take many
forms including facilitation, mediation,
arbitration, or adjudication by a judge.
As a result, people with problems are
avoiding the formal court system and are
seeking other methods of resolving their
disputes.
…people with problems
are avoiding the formal
court system and are
seeking other methods of
resolving their disputes.
It is time to take a hard look at what
the public needs from its justice system
to ensure it is available to those people
who need it and that it provides the
timely, appropriate, and effective services
to meet those needs.
I am a strong advocate of
“appropriate” dispute resolution and
mediation, in particular. I am convinced,
however, that we need a strong and
vibrant court system to assist people to
resolve their disputes in those situations
that need an adjudicative result. In
addition, the court system can—and
already does in many forms—provide a
range of resolution options in addition to
adjudication.
People have problems that may
or may not ripen into “disputes” that
require resolution. At the outset, many
people benefit from wise guidance
from a trusted advisor that can assist
26
For the past five years, I have had
the privilege of participating in research
managed by the UBC Faculty of Law
and funded by the Federal Government
(through an SSHRC/CURA grant)
to learn from those people who have
experienced the BC justice system in the
areas of motor vehicle personal injury
(ICBC claims) and family law. They have
much to tell us and we have much to
learn.1
ICBC claimants complained that:
• the system was too complex and
confusing;
• money was insufficient
compensation for their injuries and
their experience in the “system”;
• they did not feel respected;
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• it took too long to resolve their
claims;
• they were often surprised by the
legal cost;
• they felt disempowered.
Many also commented that:
• they wanted their lawyer to care
about them and their family and to
explain the process fully;
• they rated mediation as more
effective and fair than either
negotiation or litigation
(adjudication by a judge);
• they were content to have the
mediation be their “day in court”;
• although mediation was still
stressful, it was better than litigation
or negotiation
Spouses involved in family disputes
commented that:
• they found the process
overwhelming and extremely
stressful (interpersonal, systemic,
and external stress);
• the dispute had a significant impact
on the rest of their lives;
• those couples who were able to work
together well fared better;
• they wanted a lawyer who was an
expert but who also was able to
show empathy, understanding, and
fairness;
• they were often surprised by the
legal cost;
• the more realistic their expectations
about the process, the more satisfied
they were;
• those who experienced mediation
were very satisfied with that process.
One can’t help but notice the
emphasis these people place on the
process used to assist them to resolve
their problems. Other research has
highlighted that in many situations,
people value a fair and effective process
at least as much as outcome. We must
be able to provide people with process
choices that meet their unique needs
and provide wise guidance to them
along the way.
Mediation is not a panacea. That is,
it is not the appropriate process choice
for every dispute. As demonstrated by
the feedback above, however, in these
two areas, mediation is often a helpful
and effective tool to help parties resolve
their problems. I suggest that it needs to
be an available option for people at all
stages of their resolution pathway.
process choice. Further work needs to be
accomplished to ensure that the needs of
the public are heard and heeded. ▲
For those who seek to resolve
their dispute through the Provincial
Court, I am happy to report that the
Court Mediation Program provides a
free mediation process for claims up to
$10,000 in five registries in the province
(Vancouver, Surrey, North Vancouver,
Victoria, and Nanaimo).2
Kari D. Boyle is a lawyer and
consultant. She is currently Legal
Consultant for the Court Mediation
Program, Project Manager for the Civil
Justice Reform Working Group, and
Chair of the ADR Section (Vancouver)
of the Canadian Bar Association. She is
completing dispute resolution research
through the UBC Faculty of Law.
…the Court Mediation
Program provides a free
mediation process…
[email protected]
1
In these two areas, the claimant (or
injured party) in an ICBC claim and
the parties in a family law dispute
are individuals. Their opinions,
however, are entirely consistent with
the views of other kinds of actual
and potential litigants including
large corporations, insurance
companies, and small business.
2
Small Claims Rule 7.2.
For claims between $10,000 and
$25,000, Rule 7.3 gives a party in any
registry of the Court a tool called the
Notice to Mediate to bring the other
party or parties to the mediation table to
attempt to resolve their disputes.
Our justice system has already made
some changes that support effective
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27
FEATURE
Leanne Turnbull and Angela Mallard
The Court
Mediation Program
in BC
Leanne
S
ince 1999, the Court
Mediation Program has
been offering trained but
inexperienced mediators the
opportunities to get handson experience mediating
small claims cases under the
supervision of skilled mediators
who act as mentors.
Twenty seven BC Notaries have
already completed the Court Mediation
Practicum Program; seven are or have
been Provincial Court (Civil) Mediators
(PC(C)M). Of those seven, two now
serve as Program Mentors: Alex Ning
and Sally O’Sullivan Lee, the first
woman President of The Society of
Notaries Public of BC. Says Sally:
I was very fortunate to be in the
first five-day mediation course that
gave Notaries the necessary skills
to apply for a position as a student
mediator. I came to the course with
no expectations; it was just another
course to receive more skills for my
Notary practice. What I found was
that not only did I love the process,
it was a great fit for my business! As
Notaries, we are used to listening to
people’s stories and, with mediation,
I received great enjoyment seeing
28
people resolve their problems in a way
that was respectful, allowing them to
move forward with their lives.
The Court Mediation
Program runs two practicum
classes per year…
After the initial mediation course,
I continued with my mediation
education and added mediation to
my Notary practice. After taking the
Court Mediation Program’s exam,
I became a Provincial Court Civil
Mediator [now called a PC(C)M],
mediating a variety of cases including
construction, condominium, unpaid
business debt, and property disputes.
After a number of years in this role,
I was invited to be a mentor for
new students. I co-mediate with
students, spending time with them
prior to and following the mediation
and making helpful suggestions
on how they can expand and grow
their skills. I have always believed in
sharing my knowledge and expertise.
Mentoring provides me with a
wonderful outlet for this process.
The program is dedicated to interestbased mediation for small claims court
cases where the parties are empowered
to reach solutions that meet their own
interests, rather than have someone else
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Angela
decide the fate of the matter for them. If
the case isn’t settled, the parties go on to
a settlement conference and trial before
a judge.
If you’ve taken the five-day Notary
Foundation Mediation Workshop, you
already have the required qualifications
for participation in the practicum offered
by the Court Mediation Program.
Practicum mediators in the program comediate in 10 small claims mediations
under the supervision of a mentor.
At the end of each session, the
mentor provides feedback to assist the
practicum mediators to improve their
mediation skills and fine-tune their style.
Some mediators choose to increase their
mediation experience by making an
application to mediate in small claims
as a Provincial Court (Civil) Mediator.
The PC(C)M roster of mediators began
in 2000.
The creation of the PC(C)M roster
enabled the program to pilot expansion
to registries outside the Lower Mainland.
This was possible due to enthusiastic
support from Island PCC mediators
like Rick and Carol Evans and through
a generous donation from the Notary
Foundation of BC.
The Court Mediation Program
runs two practicum classes per year in
two small claims registries on the Island
(Nanaimo and Victoria) and three in the
Lower Mainland (North Vancouver),
Robson Square (Vancouver), and Surrey.
The $2000 fee for the practicum
includes two days of orientation, two or
three evening case-discussion sessions,
nine mediation sessions with a mentor,
and one mentored co-mediation session
with a classmate.
Mediation sessions are scheduled
based on case numbers and the busy
schedules of practicum students, mentors,
and PC(C)Ms. Special scheduling
accommodations can be made for
mediators attending from out of town.
The experience gained through
participation in the practicum program is
highly regarded. Mediators have travelled
from Alberta and Manitoba to complete
their 10 mediation sessions.
Within British Columbia, two
participants from the Northern Region,
two from Cariboo Chilcotin, 19 from
Thompson Okanagan, and three from
the Coast Mountain Region have taken
the practicum.
Leanne Rebantad, Notary Public
from Powell River, speaks of her
experience:
Mediating civil cases through the
Court Mediation Program gave me
mediation experience I never would
have obtained in Powell River.
The skills I learned also benefitted
me in my Notary practice. I hope
the Court Mediation Program
will eventually be available to
the residents of all the small
communities throughout British
Columbia.
For more information on the Court
Mediation Program or the practicum,
check out the Website:
www.courtmediation.com. You may also
call 604-684-1300 or 1-877-656-1300
toll free. ▲
Leanne Turnbull, LL.B., MEd, CMed,
Cert.Fam.Med., is Director of Training of
the Court Mediation Program.
Angela Mallard is the Director of
Administration.
The Scrivener
29
FEATURE
Alex Ning and John Kleefeld
Invoking and
Participating in
Mediation in
British Columbia
M
ediation processes can
be classified in various
ways, a typical one
being the evaluative/facilitative
schema—which looks at whether
a mediator gives an opinion on a
dispute’s merits or, alternatively,
tries to help disputants develop
their own solutions based on
identified interests and without
reference to the mediator’s view
of the merits.
Another schema is the mandatory/
voluntary one, which refers to how
mediation or other alternative dispute
resolution processes are invoked and how
people take part in them—that is, whether
they do so in a way that is voluntary,
mandatory, or quasi-mandatory.
Understanding the voluntary/
mandatory/quasi-mandatory distinction
is key to understanding mediation in
BC. Like the legs of a three-legged
stool, where each leg plays an equal
role in keeping the stool’s balance,
the three approaches to invoking and
participating in mediation combine
to create the balanced dispute
resolution system we have in BC.
30
Alex and John
Mandatory Approach
The mandatory approach is illustrated
by the Court Mediation Program run
from five Provincial Court Registries.
Parties in small claims actions of up to
$10,000 may get a program notice telling
them to attend at court on a certain day
for a confidential 2-hour mediation.
Although the mediations take place
at the courthouse, the mediators are
independent of the courts (they contract
with the program on an honorarium
basis) and follow a facilitative or
“interest-based” approach rather than an
evaluative or “rights-based” approach.
Understanding the
voluntary/mandatory/
quasi-mandatory
distinction is key to
understanding mediation
in BC.
In other words, they don’t tell the
parties how they think a judge would
rule, though they may work quite hard
to get the parties to do their own
realistic assessments of the risks
of going to trial. The mediators
have all taken professional study
and training, including a court
mediation practicum supervised
by an experienced mentor.
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The notice is sent out after the
claimant has filed the notice of claim
and the defendant has filed a reply and
before most other steps in the Small
Claims Court Rules. There is no expense
to the parties other than for ancillary
services such as interpreters. That said,
there is the opportunity cost of having to
take the time to attend the mediation—
sometimes enough of an incentive to
spur parties to settle on their own.
The mediation is mandatory in that
parties must attend unless they have
applied for and received an exemption.
There are sanctions for non-attendance:
claimants who don’t show up may have
their cases dismissed; non-attending
defendants may face default judgment.
But while the parties are compelled
to come to mediation, they aren’t
compelled to stay or, having decided to
stay and try the process, they may leave
at any time if they feel it is not helping.
Most parties do stay and a large number
of them find the process works. Since the
program started in 1998, over half the
cases that went to mandatory mediation
resulted in consensual settlement.
Further, in post-mediation surveys,
participants responded favourably to
the way mediations were conducted
(average ranking exceeding 4 out of 5
on a 5 point satisfaction scale) and more
than 90 percent of participants said
they would take part in mediation again
if they were involved in another small
claims action.
If the parties settle, they enter
into an agreement, drafted with the
mediator’s assistance and executed at
the mediation session. The agreement is
subsequently reviewed by program staff
and filed with the Registry; it can then
be enforced in Small Claims Court in
much the same way as a payment order.
The mandatory model is also used
by various administrative tribunals in
one form or another. The Immigration
and Refugee Board of Canada, for
example, steers immigration appeals to
an alternative dispute resolution (ADR)
session before proceeding to a hearing.
The ADR session is conducted by a
tribunal member who doesn’t sit on
the tribunal that hears the appeal if the
session is unsuccessful. The participants
are the appellant, his or her counsel
or representative, and the Minister’s
counsel.
The program started as a pilot project
in the Toronto office in the late 1990s,
was expanded to Vancouver in 2000,
and has recently spread to other cities.
An external evaluation of the program
reported that it gives appellants a process
generally seen as fair, productive, and less
adversarial than a hearing.
The program is more closely
connected to the immigration
bureaucracy, though, than the small
claims mediations are to the court
bureaucracy: the Minister’s counsel,
for instance, is permitted to pass
on information gleaned during the
mediation to office colleagues, any of
whom can use it against the appellant in
a subsequent hearing. This factor may
constrain some appellants’ willingness to
make full disclosure in the ADR session.
Quasi-Mandatory Approach
The quasi-mandatory approach is
illustrated by the Notice to Mediate that
applies to BC Supreme Court actions. It
was developed in 1998 by the Attorney
General’s Dispute Resolution Office to
CLE books (Scrivener ad) v01.ind1 1
deal with personal injury claims from
motor vehicle accidents, but usage has
since spread to other types of actions.
A party wanting to mediate does
so by delivering a Notice to the other
parties, effectively compelling them
to mediate unless they can justify an
exemption. The Notice has government
backing through detailed regulations;
Notice recipients who don’t comply can
face court sanctions. Thus the process is
driven by the parties—or by at least one
of them—in contrast to the mandatory
Small Claims mediations.
In actions to which the Notice to
Mediate (General) Regulation applies,
the initiating party triggers the process
by delivering a Notice to Mediate to
the other parties and to the Dispute
Resolution Office (allowing it to track
Notice usage) between 60 days after
pleadings close and 120 days before
trial. The parties—now the mediation
participants, unless exempted by court
order—must agree on a mutually
acceptable mediator within 10 days,
3/17/2006 12:19:11 PM
The Scrivener
31
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32
failing which any of them can apply to a
designated roster organization to choose
a mediator.
The BC Mediator Roster Society
is the organization that has been so
designated. It has a Website (www.
mediator-roster.bc.ca) with profiles of
qualified mediators, along with their
training and experience. The Society
has separate rosters for distinct types
of disputes, for example, one for
mediators for civil/commercial disputes
and another for family mediators. The
mediator’s fee is paid by the participants,
who share it equally unless they agree
otherwise.
The regulations have provisions
about attendance at mediation, including
attendance by legal counsel, and a
provision that lets a participant apply to
court for a remedy if another participant
doesn’t comply. Remedies range from
sparing (adjourning the case, ordering
a mediation) to severe (dismissing the
case, granting judgment). There are also
provisions about confidentiality and
disclosure of information needed to help
reach a mediated resolution.
Aside from these basic
requirements, the mediator may
conduct the mediation in any manner
he or she thinks fit to reach a “timely,
fair, and cost-effective” resolution, to
use the regulation’s wording. In other
words, mediators can be facilitative/
interest-based or evaluative/rights-based,
or some combination of the two.
The Notice to Mediate regime has
been very successful, with about 70
percent of survey respondents reporting
that all issues were resolved at the
mediation. The Notice procedure has
now been adapted to cases in Small
Claims Court that exceed $10,000 but
that are less than the $25,000 Small
Claims Court cap that came into effect
in September 2005.
Voluntary Approach
As use of mandatory and quasimandatory mediation grows, people are
seeing how mediation can help settle
The Scrivener
disputes quicker and with less financial
and emotional cost than litigation.
Indeed, much of the advantage of
the above rule-based mediations may lie
in their ability to effect an attitudinal
shift toward a culture that looks first to
mediation to resolve disputes, rather
than as an afterthought to litigation.
Thus contracting parties now often put
provisions into their agreements that
require them to mediate before invoking
adjudicative processes like arbitration or
litigation.
Such clauses—which can be
incorporated, for example, into agreements
for purchase and sale—can be quite
detailed. They may include names of
pre-approved mediators or of roster
organizations that can choose the mediator.
Even where there is no written
contract, parties in long-term
relationships—purchasers and suppliers
of goods and services, employers and
employees, residential or commercial
neighbours, and so on—are thinking
more about reaching mediated solutions
to their disputes, all of which bodes
well for the continued development of a
sophisticated and balanced approach to
mediation in British Columbia. ▲
Alex Ning is a Chartered Mediator and
the principal of Alexander Ning Notary
Corporation. He is also an immigration
consultant, a Provincial Court (Civil)
Mediator, and mentor to other
mediators. He is on the Civil Roster of
the BC Mediator Roster Society.
Voice: 604 270-8155
Fax:
604 270-4751
[email protected]
John Kleefeld practises civil litigation
at Lawson Lundell LLP. He has an LL.M.
in Alternative Dispute Resolution, is a
Provincial Court (Civil) Mediator, and is
on the Civil Roster of the BC Mediator
Roster Society. He has mediated or been
mediation counsel in a wide range of
civil cases.
Voice: 604 631-9146
Fax:
604 694-2931
[email protected]
FEATURE
Rick and Carol Evans
Co-Mediating Couple
Encourages
Peace and Harmony
M
y wife Carol and I first
became interested in
mediation in the late
1990s after two expensive and
painful divorces.
We learned that litigation can bring
out the worst in all of us and began
seeking a process that would allow people
in conflict to express their feelings, work
through issues in a constructive manner,
and come to a resolution that would
meet the needs of all those involved.
Although mediation was unsuccessful in
our case, we were impressed by what we
had experienced and in 1999 enrolled in
mediation training for ourselves.
I was in the first class of BC Notaries
trained by Sharon Sutherland through
The Society of Notaries Public. I enjoyed
it very much and encouraged Carol to
sign up for the introductory Conflict
Resolution course through the Justice
Institute at our local college. Carol
eventually obtained a Certificate in
Conflict Resolution through the Justice
Institute in August of 2002.
Our next step was to become
Provincial Court (Civil) Mediators
[PC(C)Ms] through the Court
Mediation Program, which provides
a roster of mediators in five registries
in British Columbia. We took our
practicum training in the Vancouver
34
and Surrey registries, which involved
our being mentored by experienced
mediators in 10 mediations in Small
Claims Court. These mediations also
provided us with the required number of
mediations to apply to become mediators
on the British Columbia Civil Roster,
which we have since done.
We learned that litigation
can bring out the worst in
all of us…
When we graduated from the
program, Carol and I were told that if we
applied to co-mediate, we stood a better
chance of being accepted than if we
applied as sole mediators. Upon hearing
this, we were both a bit disappointed.
After reframing this suggestion in our
best mediator fashion, however, we
realized that for us, co-mediation was a
good fit.
There are many reasons why comediation appeals to Carol and me.
Because some mediations involve many
parties, it is obviously preferable to have
more than one person controlling the
process. If the dispute is settled, one of us
can chat with the parties, while the other
person draws up the agreement. Then we
can change roles, to ensure nothing has
been missed or overlooked by the person
doing the drafting.
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And of course after the mediation,
we can debrief what happened and,
especially if it didn’t settle, talk about
what we could have tried that might have
been more successful.
For us, however, the most beneficial
part of co-mediating is that while
one person is in charge of the “work”
of the mediation—asking questions,
paraphrasing answers, and checking
details—the other person can be
watching body language and paying
attention to non-verbal clues. That
information can provide valuable
insights into the dispute and help us
find the key to unlock the door that can
lead to a settlement.
We work well together, have
different strengths and “growing edges,”
and enjoy teamwork. We both passed the
written exam and in October of 2000
began to mediate in Small Claims Court
in the Nanaimo Registry. At the present
time, Carol and I are one of only two comediator couples qualified as PC(C)Ms.
With the exception of ICBC cases,
most files on Vancouver Island under
$10,000 are scheduled for mandatory
mediation in Nanaimo. If the parties
settle the dispute, we and the disputing
parties are given 2 hours to discuss the
issues, come to resolution, and draw up
an agreement.
As co-mediators, we share the
introduction process and the signing of
the Agreement to Mediate and share the
air time during the mediation. Should
the parties settle, my background as a
Notary Public assists in the drafting of
the mediation agreement.
Carol’s background is in counselling
and family systems, so she is better at
uncovering the unfinished business
between and among the parties and
dealing with feelings and inconsistencies
in a story.
Mediators are taught to provide a
balance between honesty and empathy.
Contrary to what people expect from
men and women, I tend to be better at
empathy and Carol seeks out and expects
honesty.
We did one mediation in which
the defendant was an Aboriginal man
who, at the end of the session, described
Carol as “fire” and me as “air.” At first
I was somewhat offended, but later was
able to laugh and acknowledge there
was a grain of truth to the man’s insight,
especially since, sometimes, Carol is a
little too fiery and I am called upon to
put out the flames.
Because the Small Claims Court
does not allow for pre-mediation
sessions, one of the important features
of these mediations are caucuses or
private sessions—short periods of time
in which we meet with both or all parties
separately to delve a little deeper into the
circumstances that brought them to the
point of filing a claim and to do a little
reality checking about proceeding further
in the court system.
During one case, a clue provided
by one of the participants led to Carol’s
being inspired to ask a seemingly
irrelevant question that resulted in a
quick and easy settlement.
A company had done work for a
man who now refused to pay the invoice;
he had written “Costs Too Much” in
several places on the reply form. The
dispute didn’t make sense to us because
he admitted that the company had
responded quickly to his call, the work
was done well and in a timely fashion,
and the invoice didn’t seem out of line.
Carol had been watching the
defendant while Rick spoke to him in the
private session; she sensed an underlying
factor that had nothing to do with the
current dispute.
She asked what his profession had
been before he retired. He said he had
been a professional in a large firm. He
was now helping his wife in a homebased business and was clearly frustrated
and unhappy in his new “job.”
Contrary to what people
expect from men and
women, I tend to be better
at empathy and Carol
seeks out and expects
honesty.
When he was given credit for his
professional knowledge, his attitude
changed from hostility to acceptance.
The claimant reduced his invoice
in acknowledgment of some shared
responsibility in the dispute and the
defendant happily paid.
The two men shook hands and left
feeling good about themselves and each
other. Those “transformative” mediations
are the ones that keep us hooked on the
process of conflict resolution.
We have also worked together
on estate, parent-teen, and divorce
disputes, but since I am still busy with
my Notary practice, we tend to limit our
co-mediations to Small Claims Court.
While not well paid, they are endlessly
fascinating and satisfying. They provide
us with the opportunity to work together
to encourage people to find new ways of
resolving conflict and living in peace and
harmony. ▲
Notary Rick Evans practises in
Nanaimo, BC.
Voice: 250 753-5599
Fax:
250 754-2723
[email protected]
The Scrivener
35
FEATURE
Sharon Charboneau
The Value of
Mediation
in the Workplace
C
onflict in the workplace
is never a pleasant
experience for anyone—
the employee, the employer,
other employees, or customers.
Managing conflict takes time and
courage. In hindsight, management at
Honda Canada probably wish they had
taken more time to manage the conflict
between themselves and a 14-year
employee with chronic fatigue syndrome
whose employment they terminated for
excessive absenteeism (Keays v. Honda
Canada). When the company refused
to meet with Mr. Keays or accept his
doctor’s medical opinion, he hired a
lawyer and went to court.
Dealing with conflict can be
intimidating. Not dealing with workplace
conflict, however, can be timeconsuming and expensive and can expose
the company to the potential of increased
staff turnover and loss of reputation and
customers. Terminating an employee
may be the only viable solution.
Not dealing with
workplace conflict,
however, can be
time-consuming and
expensive…
©iStockphoto.com/Miroslaw Pieprzyk
It should not be the first and only
consideration.
36
In 2005, an Ontario court found
that Honda Canada had acted in a far
less sensitive manner than is considered
reasonable. The court agreed with Keays’
position and awarded him 15 months’
notice, plus an extra nine months’
compensation as “Wallace” damages,
which the Supreme Court of Canada
ruled would apply when an employer was
found to have acted in bad faith (Wallace
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v. United Grain Growers Ltd.). In addition,
the court awarded the record amount of
$500,000 punitive damages due to its
finding that Honda Canada management
acted in “…egregious bad faith.”
Honda Canada is appealing the
decision. Even if the case is overturned
on appeal in March 2006, the award
will continue to be known as the highest
award ever handed down by a Canadian
court.
Honda Canada’s reputation as a fair
and reasonable employer has been sullied
and other Canadian employers can learn
from their experience. Employers have
an obligation to consider employees’
medical information and not take steps
to discipline or terminate an employee
without taking the time to meet with
the employee, do a proper review of the
facts, and make a good-faith attempt to
manage the issues in-house.
Not all employees have the money
to hire a lawyer when their employer
ignores their needs. Therefore there
are other venues for dealing with
employee complaints. Union employees
file grievances with their union; nonunion employees file complaints with
Employment Standards or Human
Rights. These venues are backlogged so,
by the time a hearing occurs, the parties
are generally entrenched.
Awards handed down through
arbitrators or through the Employment
Standards Tribunal or the Human
Rights Tribunal become public, either in
published awards or on their respective
Websites—and some decisions make the
newspapers.
For most Canadian employers, the
end result on a smaller scale than the
Honda Canada case can be time loss on
the job, disruption in the workplace, and
litigation costs—as well as the potential
public embarrassment of being found to
be an employer who acted in bad faith
toward one or more employees, with the
potential resultant loss of reputation and
customers.
Now, doesn’t it make ultimate sense
to hire a professional mediator—skilled
in handling conflict—to assist with
the resolution of a dispute, in-house?
Pro-active employers manage their
issues in-house, where they can control
the outcome: they take every possible
measure to ensure that decisions about
their companies are not made by outside
parties such as arbitrators, Tribunal
adjudicators, or the courts.
The value of mediation in the
workplace cannot be overstated.
Mediator Sharon Charboneau has
extensive experience in the investigation
and resolution of grievances/workplace
complaints under the Employment
Standards Act, the Human Rights
Code, and the Labour Relations
Code. An experienced Human
Resources generalist with specialties
in recruitment, labour relations, and
workplace investigations, she provides
workshops for employers on current
legislative changes and ways to avoid
and/or resolve workplace issues through
effective workplace management
techniques.
Voice: 604 885-6680
[email protected]
The Scrivener
37
FEATURE
Annette Schattenkirk
Real Estate Salespeople:
Have You Ever Been Involved
in a Real Estate Dispute?
T
hink back to a recent real
estate dispute.
Was it over business practices,
ethics, commission, or an infraction
of the Real Estate Services Act? Was it a
disgruntled client or fellow associate?
Were you put in the unfortunate
position of having to be investigated—
or worse, having to appear before an
arbitration hearing with your peers as
the tribunal? Or did you need to seek
the services of a lawyer or go to Small
Claims Court?
If so, please answer this question
honestly: Did you feel that all parties
involved in the dispute left feeling that the
process served them well and was handled
in a fair, impartial, and timely manner?
Most people involved in a real estate
dispute would agree they did not go
away from the process feeling completely
satisfied and that their needs and
interests were heard or met.
Conflicts in the real estate industry
are simply part of doing business. They
can arise for many reasons—perhaps a
buyer or seller feels he or she sold low
or bought high in a rising or falling
marketplace or a sales representative
made a mistake in the sales contract or a
client erred on the disclosure statement.
The end result is a dispute.
38
Most Licensees waiting for a dispute
to be resolved find the stress and fear
of the outcome greatly affects their
real estate business, resulting in loss of
income. Clients find their stress prevents
them from pursuing the more positive
aspects of their daily lives.
Most people involved
in a real estate dispute
would agree they did
not go away from the
process feeling completely
satisfied…
As most Licensees and their clients
have discovered, the dispute does not
go away. It gets worse. It escalates.
Memories grow dim and relationships
deteriorate, resulting in a written
complaint to the Real Estate Board or
the Real Estate Council or the parties
seeking other possible legal remedies.
Tips for Handling a Dispute
1. Handle it immediately.
2. If possible, meet face to face or,
if necessary, by telephone. Forget
voicemail or email.
3. Work together to resolve the issues.
Be cooperative, compromising, and
creative. Confirm your willingness
to reach an agreement. It’s not
easy to handle a dispute when
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you are emotionally involved or
have a personal agenda—possibly
a commission or your reputation.
A manager might need to make a
decision that means losing one of his
or her salespeople. When verbal or
physical abuse may become a factor,
perhaps safety is an issue.
4. Be willing to admit you need help
from an impartial third party to
assist you in coming to agreement.
Many highly trained and skilled
mediators can assist in most real estate
disputes. Mediation has proven extremely
successful because it is voluntary. Most
parties feel they have some control over
the outcome, as opposed to having a
decision imposed on them by more
adversarial methods.
Mediation generally saves time,
money, stress, and reputations—and it
can preserve relationships. ▲
Annette Schattenkirk is a trained
mediator and arbitrator with Okanagan
Mediation and Dispute Resolution, an
Associate Broker with Landquest RealtyOkanagan, a member of the BC Mediator
Roster Society and the BC Arbitration and
Mediation Institute, and a member of the
South Okanagan Real Estate Board.
Voice: 1-866-498-6097 Toll Free
[email protected]
www.landquest.com
FEATURE
Don Andrews
Arbitration, Mediation,
and Peer Judging
in Real Estate
T
oday’s description of
Alternative Dispute
Resolution (ADR) process
takes various forms, some from
statute and some from social
regulations.
ADR is a desire to solve problems
fairly and quickly. This article is about
arbitration and mediation in real estate.
A Bit of History
In Britain in the late 1800s, the courts
concluded that not all the caseload
revolved around the law. Thus, disputes
that seemed to be predominately matters
of fact could be put before an individual
or panel who would be familiar with
the subject of dispute. This could reach
a “layman’s” conclusion that would be
honoured in a binding decision.
Eventually the process became
widely accepted internationally and, at
the time of the formation of our own
province’s arbitration, was covered by
statute. In 1986, British Columbia
took a big step in establishing the
up-to-date Commercial Arbitration
Act, which has since been amended.
The Act was designed to regulate
Domestic Commercial Arbitration as
well as provide for the adoption of the
International Rules recognized by the
United Nations.
Fundamental to arbitration
is that the award is not
published and there is no
published record.
To be competent in the practice of
Dispute Resolution, course training is
essential. The very existence of the BC
Arbitration and Mediation Institute is to
provide baseline training.
As a layman, Realtor, or developer
talking to my peers, let me describe some
differences in this industry.
Arbitration
Jurisdiction to process a case comes
normally from the existence of a clause
in a contract describing disputes to be
resolved by arbitration. The award is
usually binding and final, unless there
has been basic error, bias, fraudulent
conduct, or undue delay.
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Fundamental to arbitration is
that the award is not published and
there is no published record. Privacy is
essential—without it, there is no juris
prudence.
It is not necessary for the arbitrator
to be a lawyer. The arbitrator must be
able to recognize the evidence presented
by counsel for the parties as specific to
his profession. Therefore, the roster
includes architects, Realtors, developers,
contractors, insurance practitioners,
accountants, and appraisers—to name
several—and lawyers and some BC
Notaries!
A private society or group, such
as the Real Estate Board, can have the
binding award circulated, including
evidence, for the information and
benefits of the members.
Mediation
With mediation, the process is
fundamentally different. While there is
a disciplined procedure largely devised
from frequent appointments and
hearings, there is no overriding statute.
Rather the specialist mediator may be
guided by various pieces of legislation
governing the world of social services or
39
personal obligations or business intent of
the parties, etc.
The hearings are meetings of
the parties to discover the issues, the
differences, and the potential “give and
take” that may be found, but there is no
binding award. So, if the parties cannot
agree, the file remains with counsel and
the dispute may be returned to a courtdriven settlement.
The mediator, in case of settlement,
may very well be asked to write the
parties an outline of the agreed matters.
The appointment of an
administrator is a relatively new process
for condo disputes, for example, if the
business of the strata council is out of
control and must be placed in the hands
of a court-appointed person similar to a
trustee.
Labour arbitrators and mediators are
a distinct group, with highly specialized
backgrounds and skills.
Peer Judge Process
As a lay person, I endorse the Peer
Judge process where councils do their
best job of bringing evidence without
a courtroom type of presentation. That
format is unlikely to bog down because
the Peer Judge will recognize and react to
persuasive factual evidence not bound up
in legal arguments. Law and logic do not
necessarily mix. Thus, the Peer Judging
process should be more efficient and costeffective. ▲
Don Andrews, FRI, RI(BC), AACI,
CArb, is a member of the Real Estate
Board of BC and a founding member
of the Commercial Division. Past
National President of both the Real
Estate Institute of Canada and the
ADR Institute of Canada, he served on
the Assessment Appeal Board and is
extensively involved with BCAMI. He has
done a variety of arbitrations over the
past 20 years and remains very active in
the field.
Voice: 604 736-6616
[email protected]
40
The Scrivener
FEATURE
R. A. (Rod) Adam
ADR and its Role
in the Commercial Lease
A
lternate Dispute
Resolution (ADR)
provides both landlords
and tenants with an equitable,
fair, and timely procedure
to resolve disputes arising
during the performance of the
commercial lease contract.
ADR, when employed in a timely
and efficient manner—in addition to
bringing final resolution to a dispute—
should continue to foster and preserve
the good will and business relationship of
the parties while allowing them to carry
forward and complete the performance
of the terms of their lease contract.
Common Types of Arbitration
1. Binding Arbitration
Most common form of commercial
lease arbitration: the parties are
bound by the arbitrator’s award.
2. Documents Only
Voluntary or compulsory: Arbitrator
bases his award upon written
submissions only from the parties.
3. Oral Evidence Only
Voluntary or compulsory:
Arbitrator bases his decision on oral
presentations from the parties.
4. Final Offer Arbitration
Arbitrator, at the conclusion of the
hearing process, receives final offers
from both parties and is required to
choose which offer will form all or
part of his award.
Copies of the Commercial
Arbitration Act are
available on the
Government of BC Website
at www.gov.bc.ca.
Commercial Arbitration Act
Commercial arbitration in British
Columbia is governed by the Commercial
Arbitration Act [RSBC 1996]. The Act
clearly sets out the terms that apply to
commercial arbitrations conducted in the
Province of British Columbia.
Copies of the Commercial Arbitration
Act are available on the Government of
BC Website at www.gov.bc.ca.
Commercial Lease Arbitration:
How does it really work?
Commercial Lease Contracts—commonly
with terms to 25+ years, including renewal
terms—that require future periodic
lease term interpretations, reviews,
adjustments, and agreement by the parties
are now rapidly becoming the norm in
the commercial real estate marketplace.
Common examples of lease terms requiring
periodic adjustment include the following.
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a. Rent Adjustments
Rents for lease renewal terms,
additional rent including real estate
taxes, common area expenses (CAM
costs), operating expenses, utility
expenses, marketing, and advertising
expenses
b. Performance Covenants
Payment of rent and additional rent,
hours of operation, payment of fees
and charges, specific “permitted use”
and services
c. Conformance Covenants
Permitted “use” occupancy
requirements, rules, and regulations;
assignment and subletting of
premises; conforming to applicable
government or municipal statutes
and bylaws
d. Mutual Covenants
Indemnity provisions, options
to renew, options to expand or
relocate premises, dispute resolution
(arbitration clause)
e. Interpretation of Lease Terms
Typical Arbitration Clause
All disputes arising from or in
connection with this contract or
in respect of any legal relationship
associated therewith or derived
therefrom, shall be referred to and finally
resolved by arbitration administered
by British Columbia International
Commercial Arbitration Centre
41
(BCICAC) pursuant to its Rules.
The place of the arbitration shall be
Vancouver, British Columbia, Canada.
Published by British Columbia International
Arbitration: Rules of Procedure
The BCICAC Arbitration Rules of
Procedure are posted on their Website
at www.bcicac.com under “Rules of
Procedure.”
Agreement to Arbitrate
It may be voluntary, compulsory, and/or
binding.
Defining the “Dispute”
Parties must agree on the definition of
the “dispute” to be arbitrated.
Arbitration under What Rules:
BCAMI, BCICAC, or ?
Where an Arbitration Clause in a
commercial lease requires the arbitration
be conducted in accordance with the BC
Commercial Arbitration Act, section 22 of
the Act specifies:
Unless the parties to an arbitration
agree otherwise, the rules of the
British Columbia International
(BCICAC) for the conduct of
domestic commercial arbitrations
apply to that arbitration.
Other Rules may be substituted
where the parties agree.
Selecting and Appointing an
Arbitrator: Third Party Assistance
The parties to a dispute by agreement may
select and agree upon a single arbitrator
or a panel of arbitrators (usually three
arbitrators) to be appointed to hear
their dispute or, failing agreement, may
request that BCAMI (British Columbia
Arbitration and Mediation Institute) or
BCICAC assist them in the appointment
of an arbitrator or arbitrators and the
conduct of their arbitration.
The selection and appointment
of a qualified professional arbitrator is
paramount to achieving a timely and
equitable resolution of their dispute.
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Procedures, Timelines, and Costs
Procedures for the conduct of
arbitrations can be as simple as:
• the parties informally meeting with a
single arbitrator in a formal hearing
in a rented facility, e.g., hotel,
• before one or more arbitrators,
• with the parties represented by one
or more counsel,
• and expert witnesses retained to
provide evidence and be cross
examined.
The arbitrator is required to visit “on
site” to receive and examine evidence, etc.
Arbitration proceedings need not
be confrontational in that arbitration
represents final resolution of a dispute,
allowing the parties to get past their
disagreement and carry on with their
business relationship and activities.
The arbitrator may issue interim
orders or awards binding upon one
or more of the parties to expedite the
orderly conduct and resolution of the
arbitration.
Arbitration costs are normally borne
by the parties. At the commencement of
the arbitration procedure, the arbitrator
may require that the parties place on
deposit funds with the coordinating
institute or the arbitrator, prior to the
commencement of the arbitration
proceedings.
Rule of Natural Justice Must Prevail!
The rule of natural justice imposes two
obligations upon the arbitrator:
i) the arbitrator must give those
affected by the decision a chance
to know the allegations against
them and the facts to support those
allegations before the decision is
made; must listen to both parties;
must allow each party to present its
case fully and to answer the case of
the other side;
ii) the decision-maker (arbitrator) must
be unbiased (and conduct himself or
herself in an unbiased manner at all
times) and make a decision based
upon the evidence presented.
Arbitrators, in undertaking an
appointment and conducting an
arbitration, must at all times be seen to
be and remain neutral in their conduct
and demeanor without showing favour to
either of the parties.
Arbitration, properly employed,
should provide the landlords and tenants
with an equitable, fair, efficient, timely,
and cost-effective method of resolving
commercial lease contract disputes while
fostering, preserving, and strengthening
ongoing business relationships, to facilitate
and encourage the parties to cooperate and
fully perform their contract.
The time is at hand for employing
ADR as a method of fairly and equitably
resolving commercial lease disputes
during the life of a commercial lease.
We strongly recommend that all
commercial landlords and tenants
include an ADR clause in their
commercial leases.
Commercial Leases are becoming
ever more complex, leading to disputes
arising during the performance of
the lease terms. ADR represents
an opportunity to provide for the
fair and equitable performance and
administration of the obligations of
both the tenant and the landlord in
our ever-changing and challenging new
international business marketplace. ▲
R. A. (Rod) Adam, RI, FRI, is President
of R. A. Adam & Associates Ltd., Real
Estate Management and Investment
Consultants, and Arbor Commercial
Real Estate Services Inc. He manages
commercial real estate assets,
negotiates and administers a large
portfolio of commercial leases for
clients, and provides dispute resolution
services. He is an Associate Member of
BCAMI, a member of the Professional
Division of the Real Estate Institute of
BC, and a long-serving member of the
Commercial Division of the Real Estate
Board of Greater Vancouver.
Voice: 604 240-6220
Fax:
604 574-2681
[email protected]
The Scrivener
43
COVER STORY
Sharon Sutherland:
Quintessential
Cheerleader
for Mediation!
S
haron Sutherland was born in
Kelowna, BC. When her father
Ross Sutherland was appointed
to the Provincial Court bench, her
family moved to Tsawwassen.
Her impressive education includes a
BA in English at UBC, Master of Arts
in Drama and Theatre Studies from
Royal Holloway and Bedford New
College at the University of London,
LL.B. from University of British
Columbia, and LL.M. in Alternative
Dispute Resolution from Osgoode
Hall Law School at York University.
Sharon with twins Rowan (left) and Darsey (right). Cailean is doing a “scorpion point.”
44
The Scrivener
She met her spouse Mark Meredith
in Toronto—he’s a lawyer, too—and
the couple has three pre-teen
girls: Rowan, Darsey, and Cailean.
Sharon’s two younger siblings and
their spouses live in Tsawwassen,
as do her parents. In fact, the entire
extended family—including seven
grandchildren—lives in Tsawwassen!
The Scrivener: Sharon, what was your
first job?
Sharon: Aside from babysitting, my first
paid job was as a trampoline instructor
at age 12 for a Parks and Recreation
program. A very small sample of the
multitude of my “exciting” early career
experiences includes cleaning the staff
lounge at my junior secondary school
every day after class—and getting to hear
all the teacher gossip; library page; camp
director; highways department crew;
and law firm receptionist/switchboard
operator.
The Scrivener: Why did you choose to
pursue a career in the law?
Sharon: I decided I wanted to be a
lawyer in grade 2 when I spent a “PD”
day in court with my dad. After that,
it was common for me to spend many
professional development days at
courthouses around the Lower Mainland.
My dad always involved me—and my
siblings, if they came along—in working
through the decision-making process
of judging the cases before him; I was
intrigued by the task of translating
human problems presented by litigants
in provincial court—often unrepresented
—into “just” and “legal” results.
My father actually discouraged me
from practising law, while encouraging
me to go to law school. His experience
at law school and in early practice was
that women were treated poorly in the
profession; he was not keen to see his
own daughter experience many of the
challenges of gender bias he had observed.
Nonetheless, he had no hesitation in
encouraging me to take legal training
because of the lifeskills and opportunities
offered by a legal background. By the
time I went to law school, though, his
concerns were relieved at least somewhat:
significant changes in the way women
were treated by the profession were
starting to take place. The culture of the
legal profession was beginning—albeit
slowly—to welcome female professionals.
By that time, I had decided I
thoroughly enjoyed the law and litigation
practice, in particular. Many litigators
still assume automatically that I entered
into mediation because I found litigation
distasteful or too aggressive. Although a
large number of lawyers have begun to
embrace the opportunities of mediation
and other forms of dispute resolution
for their clients, some lawyers view
mediation as a “soft” or “touchy feely”
choice for those “weak” members of the
profession who can’t handle the rigours
of litigation.
I…continue to be
surprised by the
perception that I must
have chosen mediation to
avoid litigation…
I hear this less often these days,
but continue to be surprised by the
perception that I must have chosen
mediation to avoid litigation. In fact, I
enjoyed litigation, but found my clients
didn’t usually enjoy it as much as I did.
The Scrivener: Did you have a mentor?
Are you a mentor?
Sharon: My father was a role model and
mentor to me through my earliest years
in law. I was also extremely fortunate to
article and practise at a small Toronto
firm with outstanding lawyers who
provided solid mentorship. I learned a
great deal from all the civil litigators at the
firm: Jerry Birenbaum, Bernie Koffman,
Craig Colraine, and Nicola Savin. The
firm supported individual growth and
development; the senior people were
always available and willing to answer
questions and guide new lawyers.
I suppose having the benefit of
good mentors has given me a model
to follow. Now, I act as a mentor, both
formally—mentoring student mediators
in court-based mediations and through
the CoRe Clinic—and informally—at
the law school and elsewhere. Informally,
I try to be as available as possible to
answer questions about any aspect of
the work of mediating. I have ongoing
close mentoring relationships with
some former students and offer learning
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opportunities, for example, coaching,
co-mediating, presenting at conferences,
etc., to the greatest possible number of
people developing their own practices.
I especially seek to encourage new
mediators who are committed to the field
and who are willing and able to commit
the time to build their practices. I stay in
touch with a large number of my former
students; I am thrilled to hear about their
successes and happy to act as a resource
to them as they look for the “right fit” in
their own careers.
The Scrivener: When and why did you
focus your career on mediation?
Sharon: You could say that timing
conspired to bring me to the practice
of mediation. I was called to the Bar
in Ontario just at the time the first
mandatory mediation project was being
launched there, so mediation was an
open field with evident potential. As
well, I gave birth to twins that same year,
which made the practice of civil litigation
a rather challenging idea that led me to
consider alternatives. Then Osgoode Hall
announced the first class of an LL.M.
program in ADR, which offered me the
opportunity to develop expertise in this
new area while working only part-time.
While at Osgoode, I had the good
fortune to work with two very dynamic
fellow students in similar situations: we
each gave birth to our second or third
children during the two years of the
program. At one point, collectively we
had eight children under the age of 3!
I worked with these two women—
Anthea Pascaris and Myra Hewitt—on
a joint LL.M. practicum in which we
developed and ran a pilot mediation
program in the Toronto Small
Claims Court. I found the experience
challenging and highly satisfying and
decided to pursue court-based mediation
when I moved back to BC in 1997.
There is no doubt the enjoyment
of working with two such excellent
colleagues was a wonderful introduction
to work in this field, as well as showing
me the benefits of collaborative work
experiences.
45
The Scrivener: Please tell us about
your work with mediation.
Sharon: I am involved in a number
of different courses in the mediation
field: three practicum programs through
the BC Dispute Resolution Practicum
Society; a fourth practicum for law
students at UBC; clinical training
through the CoRe Conflict Resolution
Clinic; and I am the trainer for The
Society of Notaries Public of BC
mediation course.
As a director of the BC Dispute
Resolution Practicum Society (DRPS),
I participate to varying degrees in the
three practicum programs of The Society
of Notaries Public. At the moment, the
majority of my attention is focused on
the development of a new practicum
in Child Protection mediation. It is in
the design phase; I am excited by the
opportunities it will offer to mediators
outside the Lower Mainland and in
Southern Vancouver Island.
The practicum is intended to build
capacity for mediation in areas where
there are currently no child protection
mediators. I hope to remain very actively
involved in the development of this
project as it expands throughout the
province.
I have been involved in the Court
Mediation Practicum (CMP) since its
earliest days. The program continues
to provide an exceptional opportunity
for new mediators to gain skills and
experience in a practicum model widely
recognized as outstanding and unique.
The mentors bring amazing experience
to their role.
There is no doubt that this program
has been an essential element in the
development of mediation in BC.
Without this high-quality experiential
training, we simply would not have the
number of highly skilled and experienced
mediators in this province necessary to
advance collaborative dispute resolution
projects. After all, more than half the
nearly 200 mediators currently on the
Civil Mediator Roster got their start in
the CMP.
46
A further project of the DRPS
that deserves mention is the Family
Mediation Practicum Project, which
provides family mediation experience
under skilled mentorship. Operating
from New Westminster, this project has
proven highly successful and popular
with its students, many of whom seek
opportunities for further participation
after completing the practicum.
The potential positive
impact of a shift to more
collaborative approaches
with better outcomes for
both children and families
is enormous.
The program I teach for UBC
law students is now in its sixth year.
Approximately 24 students each year
participate in an intensive monthlong training program that prepares
them to participate in real mediations
in the CMP. Students then have the
opportunity to gain practical experience
in four mediations.
Students who participate in the
UBC mediation practicum have the
opportunity to join the CoRe Clinic
mediator roster and to volunteer time
as mediators in mentored mediations. I
helped found this organization with two
law students who participated in the very
first class at UBC—Peter Eastwood and
Philip Di Tomaso—who saw both the
potential for further mediation training
to enhance the education of fellow
law students and the need for low-cost
mediation services to make this dispute
resolution model accessible to members
of the community who could not
otherwise access these services.
I am very proud of the work CoRe
does, especially of the ongoing leadership
of former students like Peter, Phil, David
Yule, and Michael Boulet, who all donate
their time to manage CoRe. Today, CoRe
depends on the volunteer time of student
clinicians, who provide information to
the public about mediation and who
The Scrivener
schedule mediations, and highly skilled
mediators, who volunteer their time to
serve as mentors and clinical advisors.
The result is greatly enhanced access to
mediated resolutions in cases ranging
from dog-bite disputes to small business
dissolutions to simple family matters.
I also teach the Notaries Training
Course in Mediation, a wonderful
experience for me every year. That course
also qualifies as the needed training to
participate in the CMP. The focus is
not simply to prepare students for that
purpose, but to introduce skills that can
be used much more broadly in notarial
practice. Several graduates of that
course are featured in this edition. I love
teaching that course!
The Scrivener: What do you like best
about your work?
Sharon: Right now, the bulk of my
mediation practice involves service as
a child protection mediator. Although
I was hesitant at first, I have found
mediating in this challenging area
especially satisfying. As a result, my work
in developing training opportunities
for new mediators in this field is most
exciting and challenging. The potential
positive impact of a shift to more
collaborative approaches with better
outcomes for both children and families
is enormous.
The Scrivener: What is your greatest
career achievement to date?
Sharon: On the practice side, my focus
tends to be on each individual mediation
in which I am involved; I measure my
achievements in positive outcomes
for parties to individual mediations.
In the profession generally, I see a
series of positive results as programs or
approaches in which I have had a hand
become vital parts of a maturing disputeresolution environment in BC. Finally,
on the teaching side, I really recognize
success when I see my former students
succeeding after law school, in whatever
avenues they choose to pursue.
The Scrivener: Do you have time for
community service?
Sharon: My biggest community
commitment is serving on the Board of
CoRe Conflict Resolution Clinic. I act
as a mentor and supervisor to student
clinicians who volunteer their time to
offer this service to the community. I’m
very involved in fundraising to support
this organization and am one of the
organizers and the host of the annual
CoRe Challenge—a Survivor-esque
competition for members of the dispute
resolution community.
Sharon: It is apparent from the breadth
of articles in this edition that mediation is
a rapidly expanding field. This expansion
will only continue as more and more
uses for the skill sets are found, whether
in formal mediation settings or informal
client meetings and negotiations.
As I’ve mentioned, I’m also a member
of the Board of Directors of the BC
Dispute Resolution Practicum Society. I
previously served on the Board of the BC
Arbitration and Mediation Institute.
Contact Information
for Programs
Mentioned in the
Interview
I coach girls’ field hockey in Tsawwassen
and earlier this year was playing field
hockey myself for a team with a name
that really says it all about my current
level of skill—the Fossils. These days
I’m also a big spectator; while I don’t
wear the “cheer mom” hoodies or
“soccer mom” sweatshirts, I spend
most weekends at cheer competitions
and/or soccer games and/or trampoline
competitions. Add in the school plays
and community theatre and my time is
fully occupied just cheering!
The Scrivener: What are your special
interests?
Sharon: I spend as much time as possible
with my family. I enjoy coaching my
daughters in their varied endeavours
in sports and theatre and just spending
family time.
My husband Mark and I have allowed
some of our pre-children interests to
lapse . . . or perhaps lie dormant . . .
during the girls’ early years, but as the
girls get a bit older, we’re starting to see
the possibility of a bit more play. Lately,
we’re enjoying time at our new vacation
property and planning massive and no
doubt endless renovations.
We have two dogs: Kisa, a red Australian
cattle dog, and Zaqi, an American
Eskimo dog.
The Scrivener: What do you see for
your profession in future?
The Scrivener: What is most important
to you in life?
Sharon: Family! ▲
BC Dispute Resolution Practicum
Society
Contact: Kari Boyle
Executive Director
Voice: 604 838-2149
[email protected]
Court Mediation Practicum Program
Contact: Angela Mallard
Director of Administration
Voice: 604 684-1300
[email protected]
www.courtmediation.com
Family Mediation Practicum Project
Contact: Carole McKnight
Project Director
Voice: 604 516-0788
[email protected]
http://www.courtmediation.com/
family.php
Child Protection Mediation
Practicum Project
Contact: Sharon Sutherland
Voice: 604 948-9337
[email protected]
CoRe Conflict Resolution Society
Contact: CoRe Clinic
Voice: 604 827-5027
[email protected]
http://www.coreclinic.ca/
The Scrivener
Sharon’s Short List of
Recommended Reading on
Mediation and Related Topics
Practical Guides
Beer, Jennifer E. The Mediator’s
Handbook, 3rd ed. Gabriola Island, BC:
New Society Publishers, 1997. (The text
used for The Society of Notaries Public
mediation training course)
Picard, Cheryl A. Mediating Interpersonal
and Small Group Conflict, 2nd ed. Ottawa,
ON: The Golden Dog Press, 2002.
The “Classic” Texts
Baruch Bush, Robert A. and Joseph
Folger. The Promise of Mediation: The
Transformative Approach to Conflict
Resolution, 2nd ed. San Francisco, CA:
Jossey-Bass, 2004.
Moore, Christopher W. The Mediation
Process, 3rd ed. San Francisco, CA:
Jossey-Bass, 2003.
Other Personal (Eclectic) Favourites
Cameron, Nancy J. Collaborative Practice:
Deepening the Dialogue. Vancouver, BC:
Continuing Legal Education Society of
British Columbia, 2004.
Cronin, Doreen. Click, Clack, Moo: Cows
That Type. Simon & Schuster Children’s
Publishing, 2000. (A great picture book
of labour negotiations!)
Harper, Gary. The Joy of Conflict Resolution:
Transforming Victims, Villains & Heroes
in the Workplace and at Home. Gabriola
Island, BC: New Society Publishers, 2004.
Mayer, Bernard. Beyond Neutrality:
Confronting the Crisis in Conflict Resolution.
San Francisco, CA: Jossey-Bass, 2004.
Noll, Douglas. Peacemaking: Practicing at
the Intersection of Law and Human
onflict. Telford, PA: Cascadia Publishing
House, 2003.
VanSant, Sondra S. Wired for Conflict:
The role of personality in resolving
differences. Gainesville, FL: Centre
for Applications of Psychological Type,
Inc., 2003.
47
PROFILE OF A BC NOTARY: NANAIMO
Tiah Workman:
Living the Passionate Life
In Conversation with Val Wilson
T
his capable and popular
Notary has a way of
making everything she
does look easy. She’s very
involved in life, loves people,
and appreciates the beauty in
our world. Here’s her story in
her own words.
stroke at age 57. He lived long enough to
see me finish school, attend my wedding
to Greg, my husband of 18 years, and
meet Graeme, his first grandchild.
That initial meeting worked its way
into my assisting with notetaking a few
times in court, then into various clerical
duties in her office. She became a very
good friend.
The Scrivener: Tiah, Please tell us
about your early life.
Tiah: I was born in Fort St. John and
adopted shortly thereafter by parents
who were then living in West Vancouver.
I did not find out I was adopted until I
was 36 years old.
When I was 6, we moved to Nanoose Bay
on Vancouver Island where I grew up. I
had some rather turbulent teenage years
before getting my act together and was
very lucky to have a mother who loved
and put up with me throughout all of it.
When I was 16, my father had a massive
On Vacation!
My older brother Douglas was also
adopted, but from different birth
parents. We did not find out until my
mother’s dementia had progressed to
such a stage that we had to take over her
affairs. Shortly before her rapid decline,
she confided to my brother that we were
adopted and it fell upon him to tell me.
Some time later, I decided to search for
my birth mother, if only to obtain health
information for my children as I was
suddenly a blank slate with no history
of my own. While I managed to locate
her, she did not want to be found and
we have not had any communication
beyond our original contact.
The Scrivener: What was your career
experience before you became a BC
Notary?
With the Nanaimo Community Band
48
gravitating toward law. I was quite
interested to learn a woman’s perspective
on attending law school and contacted
a new lady lawyer in Nanaimo to ask
questions and request her permission to
be her shadow for a while.
Tiah: While attending classes at
Malaspina College, I found myself
The Scrivener
From there, a receptionist position
came up at a medium-size law firm in
Nanaimo. During my time at that firm,
I was instructed in conveyancing to fill
in for the firm’s conveyancer during
maternity leave. That office had a typing
pool so I was never required to prepare
my own documents or letters; everything
was dictated.
Upon the conveyancer’s return, I left
that firm for a full-time conveyancing
position at another law firm where I
was required to prepare all my own
documents. Did I mention I had never
learned to type? Not sure if I had
mentioned it to the partner in the first
firm that hired me, either. My entire
first day was spent typing up one Court
Order—three pages long! I always have
been a quick study, though, and did very
well once I caught on.
After two years, I became pregnant
with my first son and decided to quit
my job to stay home with my new baby
for a year. After two months at home,
I was totally stir-crazy and applied for
a position as a senior conveyancer with
and, quite honestly, I was not interested
in anything but solicitor’s work.
Tiah with Marilyn Sullivan from the
Greater Nanaimo Chamber of Commerce.
Tiah’s office won First Place in the
“General Office under 10 Employees”
category in the Chamber’s Annual
Christmas Decorating Contest.
one of the best law firms in Nanaimo.
I worked for that law firm through my
second son’s birth and right up to the
time I was commissioned as a Notary
Public. The two solicitors in the firm
were extremely supportive of me while
I was taking my Notary Preparatory
Course.
The Scrivener: Why did you become a
BC Notary?
Tiah: At that point, I was no longer
interested in going to law school. I had
a husband, a very young family from
whom I did not want to be separated,
Rick Evans, one of our past
Presidents, past Directors, and more
recently our past Education Coordinator,
provided me with information about
becoming a Notary. That is where it all
started. I thought that becoming a Notary
Public would be a perfect match for me.
I started the Notary Preparatory Course
in 1991 (with a 3-year-old and 1-year-old
at home). My youngest son Sean became
extremely ill in the Spring of 1992 and
I can still remember working on my
assignments while sitting on his bed in
Children’s Hospital! I received my Notary
commission in December 1992.
I take pride in doing the job
properly and upholding
the integrity of BC Notaries
and our Society.
The Scrivener: Did you have a mentor?
Are you a mentor?
Tiah: Rick Evans certainly filled that role
for me and continues to do so. When I
was first commissioned, I shared office
space with him in Nanaimo for three
years before heading off on my own.
Although Rick tends to be the first
person to whom I often turn, a number
of our members have also filled that role
for me throughout the years. That is
something very special about our Society
and our members; we tend to look to
each other and be there for each other
as needed. Although that is partially due
to the size of our Society, it is primarily
because Notaries are who they are. Am I
a mentor? I know I have been a mentor
to a few Notaries and would hope that
any of our members would feel welcome
to contact me regarding a question or a
problem.
had an opportunity to do a little travelling
over the past few years and every time I
come home, I realize how incredibly lucky
we are to live in a such beautiful place.
Although Nanaimo is growing
in leaps and bounds, it maintains a
“small town” feel. We are close enough
to Vancouver and Victoria to be able
to enjoy the best of both, without the
worst, including the high costs related
to living in the city. A little more than
an hour away, we have skiing. We have
boating at our doorstep and we can golf
year-round. We get very little snow and
the shopping is improving, so my son
Sean says! What’s not to like!?
We have a great business community.
Our city is still small enough that we
generally know everyone working on a
file, from the other Notary office/law
firm, to the lender, Realtor, or insurance
office. It’s a good place to do business.
The Scrivener: What’s the most
satisfying aspect of being a Notary?
Tiah: Knowing you have helped
someone, whether you are assisting
clients to buy a first home or helping
people with the Will they are finally
getting around to doing or just
answering a few questions that no one
else has taken the time to answer.
I take pride in doing the job properly
and upholding the integrity of BC
Notaries and our Society. I see myself
retiring in 10 to 15 years and know I will
miss being a Notary. It is who I am.
The Scrivener: Why do you practise in
Nanaimo?
With a performer of traditional Mayan
Dance
Tiah: Because it’s home. I moved to
Nanaimo in 1983 and could not imagine
living and working anywhere else. I have
The Scrivener
Tiah and Greg at the President’s Reception
at The Society’s 2005 Conference in
Victoria
49
represent The Society when called upon is
a very gratifying experience that I would
certainly recommend to all our members.
What have I helped accomplish?
Together with all the members of
the Board, I have helped with the
continuation of our Society by being
involved in it. I am more that willing to
continue in that commitment because
I think it is important to be involved in
something in which you truly believe.
With Greg
The Scrivener: You were elected to
the Board of Directors at the Annual
Conference in Kelowna in October
2000. What do you enjoy about your
involvement on the Board?
Tiah: Becoming a Director was definitely
one of my better decisions. I sat as a
committee member for a number of years
before becoming a Director, which gave
me very good insight into the effort that
goes into running a Society such as ours.
Being a Director gives you an
opportunity to understand what goes
on in the office, including the enormous
amount of work Wayne Braid does on
our behalf and how and why The Society
is where it is today. The committee work
is sometimes tiring, sitting on discipline
matters is never fun, but all the work the
Directors are required to do is interesting.
I like having the opportunity to voice
my opinions at the Board level and to
know I am part of the decision-making
process for our Society, particularly when
I am affecting my own future by doing
so. I enjoy the camaraderie with the other
Board members. The opportunity to
At Chichen Itza
50
The Scrivener: In what community
service are you currently involved?
Tiah: I am a member of the Greater
Nanaimo Chamber of Commerce and
Nanaimo Women’s Business Network. As
always, I am involved with one of my son’s
teams. Currently I am manager of Sean’s
Rep “B” soccer team.
The Scrivener: What are your special
interests?
Tiah: I like to think I can golf, I am
an avid reader, and I cross-stitch while
sipping wine with my best friends. I did
play the flute until recently; I find I am
running a little short of time to give it
the attention it needs. I like boating with
my husband, particularly when we can
leave the rest of the world behind and
just camp on the boat or visit a really
cool little pub, although that seldom
happens, due to my schedule.
On Akumal Beach
let me get away without making that
statement. I am unfortunately known
for my rambunctious bidding at silent
auctions and I am lucky to have such
supportive friends who help me carry
home everything I “win.”
When I am not working, spending
time with family or friends, or doing
chores around the house, I love to spend
time with my pets. Our Border Collie/
Cocker Spaniel/Doberman cross Sarah
is 12 and our kittens, Rosemary and
Thyme—they came with those names—
are 10 months. Those three made for
quite an interesting trip on the houseboat
on Sprout Lake last August.
The Scrivener: Tiah, what is most
important to you in life?
Tiah: I only get to pick one? I want to say
my husband . . . my boys . . . my friends
. . . honesty—that’s a big one . . . integrity
. . . health . . . happiness . . . To live it! ▲
I love to travel. I have pretty much
decided that is my number one special
interest. I don’t think I will get to do
nearly as much as I would like until I
retire.
I enjoy spending time with my boys,
watching them grow into confident
young men and being there when they
realize they might still need me. I love
watching them play sports. Although
they have played quite a number of
sports over the past few years, both my
boys have chosen soccer as the only sport
they still play. There is nothing quite like
watching your children excel in a sport
they love.
And, OK, I like to shop; I don’t
think anyone who knows me well would
The Scrivener
With Graeme (centre), Sean, and Greg
BC NOTARIES
Where Are They Now?
Vernon Hargreaves
V
ernon Hargreaves was
born in Vancouver in
1916.
After graduating from Fairview High
School of Commerce, he worked in the
real estate office owned by his father
Harry Hargreaves. Harry became a BC
Notary in 1922 and was President of The
Society from 1943 to 1958.
Vernon and his daughter Betsy Gibbons
Vernon joined the Royal Canadian
Artillery in 1942 and served in the
West Coast defence system before going
overseas as an Artillery Surveyor. On VE
day, he was transferred to the Army Legal
Office to compile evidence for Court
Martial cases. He returned home in the
Spring of 1946 to work in his father’s
Notary office as accountant and legal steno.
Vernon received his Notary
Commission on July 15, 1959, and
continued to offer professional notarial
services to valued clients in the Mount
Pleasant area after Harry retired.
Vernon enjoyed serving the public and
participating in meetings, seminars, and
other education programs for both the
Notary and the real estate professions.
Much of his professional training
was gained through a good legal library
and many contacts of the legal profession.
He was an excellent Notary; he was often
contacted by many junior Notaries for
advice and solutions to notarial challenges.
Vernon served as President of The
Society from 1969 to 1971 and was
appointed an Honourary Life Member of
The Society at the Fall Conference and
AGM in 1977. He was an Examiner for
The Society from 1992 to 1996.
Winter 1993 Scrivener, featuring Robert
Laing (left), Bob Reid, and Vernon
Hargreaves.
Wayne Braid, Executive Director
of The Society, notes, “Mr. Hargreaves
taught the Wills section of the course
when I was enrolled in the Notary
Preparatory program in 1986. The
sessions taught by Vern were incredible.
He had a tremendous ability to
communicate his knowledge to the
students in front of him and, with his
The Scrivener
sense of humor, everyone always looked
forward to the next day of instruction!
“The historical records here at the
Secretariat indicate that Vern was one of
the most respected and revered members
of our Society; he served his clients and
our members for three decades.”
Prior to his retirement in July 1989,
Vern shortened his office hours so he and
his wife Betty could take longer holidays.
They enjoyed many wilderness trips via
horseback, canoe, river-raft, and plane
and travelled to other destinations by bus
and train. They also flew to Britain and
sailed by cruiseship in the Caribbean and
to Alaska.
He was a member of the local
Kiwanis Club for several years and, until
recently, also enjoyed gardening, sport
fishing in the Interior, and antique glass
work. Vernon is currently residing at
The Terraces at Fir and 7th Avenue in
Vancouver.
Because he was educated both on a
formal and informal basis, he would like
to pass along a bit of the wisdom he has
gained through experience: “Keep your
mind active to the best of your ability.
The knowledge you gain goes with you
during your lifetime.”
Vernon turns 90 this year. ▲
51
TRAVELS OF A BC NOTARY
Highlights of
Esther Chiu’s Return to The Holy Land
F
or 17 days in November
2005, Esther Chiu took a
Bible Land Discovery Tour
with her friend, retired Notary
Susanna Gordon.
In one afternoon, they travelled
through customs in three countries:
Egypt, Israel, and Jordan.
From Cairo, they went to Mount
Sinai and the wilderness of South Sinai.
A jeep sped them through the stunning
desert-scapes of red sand, where many
scenes from Lawrence of Arabia were
shot.
From the King’s Highway to Kerak and
Mount Nebo, they enjoyed a spectacular
view of the Jordan Valley, Jericho, and
the Dead Sea, with Jerusalem barely
visible in the distance.
They loved the Holy City of Jerusalem,
especially their walk on Via Dolorosa;
the Dead Sea region; Masada; and
Jericho, the second-biggest oasis in the
Middle East.
They visited the rose-red City of
Petra, a UNESCO World Heritage Site,
where scenes from the Indiana Jones
movie The Last Crusade were filmed.
National Geographic says Petra is one of
the “50 places of a lifetime” to see.
Other highlights included Madaba—
City of Mosaics—and the walled village
of Kan Zaman, a preserved 19th Century
settlement on the outskirts of Amman,
capital of Jordan. Three American hotels
in Amman were bombed just before
Esther’s tour entered the city.
The tour visited tombs of former kings
and Roman soldiers and the Urn Tomb,
an archaeological wonder high up in one
of the pink mountains.
52
From the Ancient Roman City of Jerash,
they crossed over to Israel to visit the
baptismal site at River Jordan; Sea of
Galilee; Nazareth; Bethlehem; Megiddo,
Israel’s cradle of archaeology; and
Caesarea on the Mediterranean.
The Scrivener
Editor’s
Happy Anniversary, Society of
Notaries Public of BC, in your
80th year of incorporation!
Next Issue
Theme for Summer 2006:
Honouring Our Own
Dr. Bernard Hoeter
Our Cover Story personality is Dr.
Bernard Hoeter, esteemed Secretary
of The Society from 1969 to 1986.
In this issue, we look back at our
roots and ahead to the future.
Of course, we will also feature
articles of general interest from our
regular columnists.
Advertising Opportunity
Showcase your business
to the thousands of
Allied Professionals in BC who
read The Scrivener, quarterly!
From the Mount of Olives, the view was incredible over the Kidron Valley toward the
Old City of Jerusalem and the Golden Dome of Rock. ▲
The Scrivener
Summer Advertising Deadline:
June 1, 2006
[email protected]
Voice: 604 985-9250
www.notaries.bc.ca/scrivener
53
THE NOTARY FOUNDATION
New Partnership
Will Benefit British Columbia
B
C Notaries and the Notary
Foundation are pleased
to announce a new
partnership agreement with
Scotiabank, Canada’s third-largest
bank ranked by assets, with more
than 120 branches in BC.
For five consecutive years,
Scotiabank has been awarded the title
of “the best bank in customer service
excellence in Canada” by the research
firm Synovate and the rating of “world
class” in a customer satisfaction survey of
Customer Services and Support Contact
Centre by SQM Group Inc.
BC Notaries and Scotiabank’s
MaryAnne Galey have worked together
since 1993 to provide an excellent rate
of interest return on the monies held in
Notaries’ trust accounts. Scotiabank’s
new partnership agreement will enable
the Notary Foundation to maintain
and increase its support of various good
works programs in our province.
MaryAnne is Manager of
Scotiabank’s Global Transaction
Banking Group—a specialist sales team
BC Notaries and
Scotiabank’s MaryAnne
Galey have worked
together since 1993 to
provide an excellent rate
of interest return on the
monies held in Notaries’
trust accounts.
that provides sales and relationship
management support and consultative
services to commercial and corporate
banking customers and their employees.
Global Transaction Banking offers a full
range of services from Business Accounts
and Electronic Banking to Expense
Management and Foreign Exchange
transaction services.
MaryAnne joined Scotiabank in
1973 and has worked in automated
services since 1975 to deliver on the
bank’s commitment to offer consumers
and business customers financial services
24 hours a day, seven days a week, with
the latest technologies available in the
marketplace today.
Very involved in her community,
MaryAnne has volunteered as Scotiabank
Company Captain for the annual
Bowl for Big Brothers Classic—which
Scotiabank has sponsored since 1999—
and coordinated the fundraising efforts
of more than 300 employees and their
families. In recognition of her dedicated
efforts, Big Brothers honoured her with
its prestigious President’s Commendation
Award in 2005. For the past two years,
MaryAnne has also served on the
Business Ladies Golf Executive for the
Nico Wynd golf course in the White
Rock-South Surrey area.
In addition to being an avid
golfer and community volunteer,
MaryAnne enjoys travelling with
her husband and visiting her six
children, 15 grandchildren, and a
great-granddaughter in Alberta, where
MaryAnne was born and raised. ▲
Scotiabank’s MaryAnne Galey
54
The Scrivener
THE NOTARY FOUNDATION
Spotlight on Good Works at
Camosun College and Capilano College
Camosun College School of
Business Awards 2005
Each year, the Notary Foundation of
BC presents an award for academic
excellence and demonstrated leadership
ability to students of the Legal Office
Assistant Program at Camosun College.
Shelby Affleck and Tegan Munro
each received the award at Camosun’s
annual ceremony on December 2005.
They were two of 69 School of Business
students honoured for outstanding
achievement in areas of study from golf
management to accounting.
Capilano College Students Thank the Notary Foundation of BC
I would like to take this opportunity to
thank the Notary Foundation of
BC. As a full-time student at Capilano
College, I find it difficult to maintain
part-time employment while keeping up
with the high demands of the Paralegal
Diploma Program. When I applied to
this program, I knew I would have to
make sacrifices to obtain a promising
education and graduate with honours
This intense two-year program consists
of 12 courses per year. It is designed to
provide students with career training
so we may enter the workforce with
confidence and legal knowledge.
The program requires hard work and
endless hours of studying in various areas
of law. Capilano College sets a high bar
for students to maintain a minimum 3.0
grade point average to graduate.
After graduation, I plan to obtain
full-time employment as a paralegal
to gain work experience in the field of
law. In the future, I am determined to
continue my education and one day
graduate from law school with honours.
Camosun College Award Winners Shelby
Affleck (left) and Tegan Munro (right)
with Notary Foundation Chair Leta Best
This award will be applied to my
tuition for third semester, making the
costs of my education more affordable.
Thank you for this generous award.
Sincerely,
Jamie Teperto
The Scrivener
Capilano College Scholarship winners
Jamie Teperto (left) and Lynne Slessor
Thank you for the scholarship I received
in the Fall 2005 term. Your generosity
is greatly appreciated. I plan to put the
award toward my tuition fees for my
final term.
I am currently enrolled in the fulltime Paralegal Diploma Program at
Capilano College and plan to do my
six-month practicum in a downtown
Vancouver law firm upon completing my
course work in Spring 2006.
Sincerely,
Lynne Slessor
55
$12,743,906
T
he 12-member Board of Governors of the Notary
Foundation of BC is comprised of:
• eight members of the Board of Directors of The Society of Notaries
Public of BC;
• one representative from the Attorney General’s office in Victoria;
• two Directors-at-Large, appointed by the Attorney General; and
• the Executive Officer.
The eight members from The Society are elected by the Directors of
The Society from among their ranks, for a three-year period.
Current Governors
Leta C. Best: Chair
William G. Anderson
Susan Davis
Christopher W. Dupuis
Laurie Salvador
Ken Sherk
Larry Stevens Sr.
George J. Tanco
Robert Adamson: the Attorney General’s Representative
Jennifer L. Harry: Director-at-Large
Wayne Strandlund: Director-at-Large
The Governors of the Foundation have the responsibility of guiding the
Foundation in its mandate to disperse the funds generated by interest on
Notaries’ Trust Accounts for the following purposes.
1. Legal education
2. Legal research
3. Legal aid
4. Education and continuing education for Notaries and applicants who
have enrolled to become BC Notaries
5. Establishing, operating, and maintaining law libraries in BC
6. Contributions to the special fund established under the Notaries Act of BC
* Contribution to date from
the Notary Foundation of BC to
the Legal Aid Society of BC.
Source: Interest earned from
Notaries’ trust accounts
(the Notaries Act of BC)
56
G. W. (Wayne) Braid, Executive Officer of the Foundation,
is responsible for administration of the office, staff, and the diverse
investment funds of the Foundation.
The Board of Governors meets quarterly to consider applications
for funding from various organizations and to set policy, review the
Foundation’s financial status, and provide direction for the administration of
the Foundation.
The Scrivener
P R I VAT E R E C I P E
Letters
��
��
��
��
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��
Lorne’s Kids’
Chocolate Puffy
Cookies
/
1 2/3
1 2
/
1 4
/
1
1 1/4
1 2
/
2
1 1/2
1 2
I would like to congratulate you
on your Fall 2005 issue, which was
exceptionally enjoyable. It is more
than apparent that these women
are outstanding and the future is
bright with potential. It seems we
have been short on recognizing the
women that do make a difference,
although many have tremendous
responsibilities besides their careers.
Thank you,
Judi Whyte, RI(BC)
Thank you for sending us copies of
The Scrivener. The article looked
wonderful. [December 2005,
Winter issue, Vol. 14. No. 4]
We really appreciate the opportunity
to share information on the MS
Society’s Volunteer Legal Advocacy
Program with your membership,
clients, and readers.
All the best for 2006.
Kindly,
Adrianne Boothroyd
Legal Advocacy Program
Coordinator
Multiple Sclerosis Society of
Canada
BC Division
cup confectioners’ sugar
cups white flour
cup unsweetened cocoa powder
tsp. salt
stick (1/2 cup) soft butter
cups white sugar
tsp. vanilla extract (more, if required)
large eggs
tsp. baking powder
Put the confectioners’ sugar into
a bowl and set aside. In a second
bowl, stir the flour, cocoa, baking
powder, and salt. In a third bowl,
cream the butter and white sugar
using a mixer at low-to-medium
speed. Scrape down the bowl; add
1 egg and beat contents till blended.
Add the other egg and the vanilla
extract; beat until blended.
Now add the ingredients
from the second bowl (the flour
mixture) and mix till blended. Use
a tablespoon to scoop up the dough
for each cookie ball. Roll each ball
in the confectioners’ sugar until
covered. Place the cookie balls on
a slightly greased baking sheet,
spacing the balls a few inches apart.
Bake at 350º for 11 minutes.
Makes enough cookies to fill 2 cookie
sheets.
Thanks to Laura, age 14; Joel, age 12;
and Creston Notary Lorne Mann.
The Scrivener
57
WILLS & ESTATES
Trevor Todd and Judith Milliken QC
Mental Capacity
and Marriage
M
ost of us have heard
of the infamous case
of playboy playmate
Anna Nicole Smith who laid
claim to the estate of her 90year-old husband.
This odd couple met at a topless bar
where Smith earned her living. He was
89 and she was 26. Their marriage lasted
just over one year before the husband
died, leaving an estate of $475 million.
He died in 1995 and the litigation is still
before the courts.
From time to time, newspapers
report similar situations involving a
lonely, enfeebled old man who marries
a much younger waitress or careworker.
Increased longevity will undoubtedly
give rise to yet more disputes about the
validity of such marriages.
Some courts have made apparently
contradictory findings that a deceased
senior, who is not mentally capable of
executing a Will, is still mentally capable
of marrying, thereby revoking his or her
existing Will. Banton vs. Banton 164
D.L.R. (4th) 176 is just such a case.
This was an Ontario decision
involving an 86-year-old man who
formed a friendship with a 31-year58
old waitress from the restaurant of
his retirement home. She persuaded
him to secretly marry and to prepare
two Wills in her favour. At the time of
the marriage and the execution of the
Wills, the court found that the deceased
suffered from terminal cancer, serious
hearing problems, restrictions of physical
mobility, incontinence, and depression.
They found he was cognitively impaired
and enfeebled.
From time to time,
newspapers report similar
situations involving a
lonely, enfeebled old
man who marries a much
younger waitress or care
worker.
The court concluded that Mr. Banton
did not have testamentary capacity when
he signed his Wills in this woman’s favour
and that it was her undue influence that
procured the Wills. Nevertheless the
court found that he had sufficient mental
capacity to enter into his marriage and
thus the marriage was valid.
The court ruled that although the
test for testamentary capacity is quite
stringent, the test for capacity to marry
is not. Capacity to marry requires only
The Scrivener
that the person understand the nature of
the relationship and its responsibilities.
In this case, the testator had some
experience in that he had been married
twice before. The court concluded that
he had sufficient capacity to enter into
the marriage and was not coerced into
doing so.
In fact cases as far back as Durham
v. Durham (1885) 1 T.L.R.338 have
ruled that it does not require a high
degree of intelligence to comprehend the
significance of entering into a marriage.
Hart v. Cooper 2 E.T.R. (2d) 168
(B.C.S.C.) is a good example of the
extent of evidence required to set aside
a questionable marriage. In this case the
deceased drew a Will in 1988 naming
his three children as his beneficiaries. In
1990 he was widowed and in 1991 he
married the younger plaintiff. He was
her sixth husband.
The deceased did not tell his
children of his plans to marry and
the marriage was witnessed by
acquaintances of the plaintiff wife.
Indeed he disappeared from hospital and
married two days before his scheduled
examination by a psychiatrist to
determine his mental capacity. Following
the marriage, the plaintiff effectively
isolated the husband, refusing to
allow his children or doctor to contact
him. This ultimately lead to police
intervention. When they spoke to the
husband, he told them that he had
been kidnapped and that he wanted
to return to the hospital. He died in
hospital within one month of the suspect
marriage.
lack of mental capacity. He was not
satisfied that the husband could not
understand the simple nature of the
contract of marriage and as a result he
ruled the marriage valid. Thus, the prior
Will was revoked by operation of law
pursuant to the terms of the Wills Act.
After the death of the husband, the
plaintiff wife sought a declaration that
1988 Will had been revoked as a result of
their marriage. The deceased’s children
challenged the validity of the marriage.
This case illustrates the lengths to
which the courts may go to uphold what
appears to be a questionable marriage by
a vulnerable older person.
The family doctor testified that
in his opinion, the plaintiff was
manipulating the deceased to derive
a benefit from his estate. He further
stated that the deceased’s mental state
was impaired to such a degree that he
was incapable of comprehending the
importance of any issues before him and
would not have had the mental capacity
to comprehend the contract of marriage.
Evidence Required to Set
a Marriage Aside
The Alberta decision of Barrett Estate
v. Dexter 34 E.T.R. (2d)1 is another
good example of the extent of evidence
required to set a marriage aside, based
on lack of mental capacity. A 93-yearold man married his 54-year-old
housekeeper and he died a short time
later. His estate brought an action to
have the marriage declared a nullity.
Justice Lowry did not accept this
uncontroverted medical evidence and
found that the children had not proven
Three medical specialists had
examined the deceased shortly before
and after the date of the marriage. All
The Scrivener
three testified that he suffered advanced
dementia. Their evidence was near
unanimous that the deceased was “quite
significantly deteriorated in cognitive
function and certainly not aware of
legal and financial matters and that his
judgment is impaired along with his
other cognitive and intellectual factors.”
The court cited the reasoning
of their appellate court in Chertkow
vs. Feinstein (1929) 24 Alta.L.R.188,
holding “that the capacity to enter into
a valid contract of marriage is a capacity
to understand the nature of the contract
and the duties and responsibilities which
it creates.” The court here ruled that the
plaintiff impugning the validity of the
marriage had met the burden of proof
required and satisfied the court the
marriage ought to be ruled invalid.
Similarly the Ontario Court of
Appeal upheld the trial decision in Re
Sung Estate 11 E.T.R. (3d) 169. Once
more this case involved an enfeebled
and depressed elderly man who secretly
59
married his younger housekeeper. When
the deceased’s five children learned of
the marriage, the wife assured them that
their father had protected their position
financially with a prenuptial agreement.
In fact a prenuptial agreement was
prepared but never signed.
The medical evidence indicated
that at the time of the marriage, the
groom required full-time assistance from
a caregiver, suffered from Parkinson’s
disease, and needed a respirator to
breathe and a wheelchair for transport.
Further he was rapidly succumbing to
lung cancer and was taking massive
amounts of medication. The family
doctor testified that the deceased was
unable to think clearly and logically at
the time of the marriage.
The trial judge found that the
deceased lacked sufficient capacity to
enter into a form of marriage. The Court
of Appeal upheld this decision in what
they described, notably, as a close case.
Conclusion
The act of marriage gives rise to
significant legal ramifications in both
matrimonial law and estate/inheritance
law. Indeed many people do not even
know that marriage automatically
revokes a Will. Whatever the historical
basis may have been in holding that
marriage is a simple contract not
requiring a high degree of mental
capacity, that ought not to be the case in
modern times.
60
capacity is required to understand the
legal consequences.
The common law courts have
traditionally ruled it should not be too
difficult to enter into marriage. Marriage,
however, automatically entails important
consequences to the testator’s financial
affairs and estate planning. For example
the very act of marrying automatically
revokes the spouses’ previous Wills and
gives any surviving spouse significant
rights under our modern legislation.
Surely it is paradoxical that a person
who is not mentally capable of executing
a Will may nevertheless be mentally
capable of marrying and thus effectively
revoke his or her existing Will and estate
plan. It seems inappropriate that our
Wills Act should prescribe an automatic
Will revocation in the event of marriage,
even when a spouse does not have
the mental capacity to execute a new
Will. Surely if there is to be a statutory
revocation of a Will upon marriage, it
should be limited to those cases where a
spouse has full testamentary capacity at
the time of that marriage. ▲
Trevor Todd restricts his practice to
Wills, estates, and estate litigation. He
has practised law for 31 years and is
a past chair of the Wills and Trusts
(Vancouver) Subsection, BC Branch
of the Canadian Bar Association, and
a past president of the Trial Lawyers
Association of BC. Trevor frequently
lectures to the Trial Lawyers, CLE, and
the BC Notaries and also teaches estate
law to new Notaries. His Website
includes 30 articles on various topics of
estate law.
Today many seniors may marry
for the second or third time. Modern
matrimonial law includes many
presumptions of entitlement to share in
family assets and spousal maintenance
law can be complicated. Needless to say,
marriages in blended family situations
may create a great amount of uncertainty
with respect to the various claims of the
children. Unfortunately disputes often
arise involving the distribution of wealth
following the death of one of the spouses.
Judith Milliken QC has practised law
for 30 years in the areas of commercial
law, criminal law, and most recently
estate litigation. She teaches legal
English and assists her husband Trevor
Todd in his estate litigation practice.
Savvy seniors will wish to enter
into prenuptial agreements that will
require independent legal advice to be
enforceable. Surely a significant mental
Voice: 604 264-8470
Fax:
604 264-8490
[email protected]
www.disinherited.com
The Scrivener
REAL ESTATE
Thousands of
BC Decision-Makers
Read The Scrivener!
Gerry Neely
Legally
Speaking
and
Keyword Index
T
he 393 Legally Speaking
columns written over
the past 25 years for the
British Columbia Real Estate
Association focus on the legal
effect on Realtors® of some 500
court decisions.
They include related real estate
issues such as life estates, title insurance,
and stream protection regulations.
Researching the information available
in these columns is made possible only
by a Keyword Index created in the last
few years by Norma Miller, Director of
Communications for BCREA.
Intended to be an easy first step for
a reader to see if the columns have an
answer to a reader’s question, it links
words in the Index to the columns in
which they are found. Anyone interested
in a strata problem would find columns
listed under: strata bylaws, strata
corporations, strata councils, and strata
plans; leaky condos, Condominium Act;
and Strata Property Act.
Keywords are cross-referenced to
make the Index more user-friendly.
Examples are zoning to municipal bylaws,
easements to access rights and rights
of way, market values to prices, and
misrepresentation to negligence.
The only problem is that some
words are linked to a large number of
This magazine reaches the
following spheres of influence,
quarterly.
columns—for example, the Contract of
Purchase and Sale is linked to 95—which
makes a search too time-consuming. As
a result, I’ve started to add subject matter
indexes for such keywords. For example:
• 33 columns dealing with fiduciary
duties are divided under 11
subheadings, such as agency
relationships, breach of duty, higher
duties;
• 105 columns that mention
commissions are divided among 26
headings.
I made this change in response to
more than 1300 responses by Realtors®
to a survey initiated last year by BCREA,
asking for the topics they would like
to see addressed in Legally Speaking
columns. Several past columns may have
provided the answers for the Realtors®
who asked about backup clauses,
archaeological sites, holdover clauses,
measurements (12 columns), parking
spaces (15 columns), and counteroffers.
Adding the subject matter indexes
will help Legally Speaking readers help
themselves.
Notaries and other interested
parties will find subscription
information for Legally Speaking via
http://www.bcrea.bc.ca/publications/
legally_speaking.htm. ▲
Gerry Neely practised law in Victoria for
47 years as a solicitor with Pearlman &
Lindholm in Victoria. He retired in 2005.
The Scrivener
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
BC Notaries
Land Appraisers
Land Surveyors of BC
Lawyers
Real Estate Professionals
Real Estate Boards and
Associations
Provincial/Federal Court Judges
Registrars
MLAs and MPs
Life Insurance Brokers and
Agents
Accountants
Managers of Financial
Institutions
Mayors
Government Ministries
Libraries: Public and Private,
including Law Society, Legal
Services, Educational Facilities
Investment Management
Agencies
Chambers of Commerce
BC Housing
BC Assessment
BC Buildings Corporation
Advertising Deadline for
Summer Issue: June 1, 2006
Promote your services to our
prequalified audience of allied
professionals!
Call:
604 985-9250
Fax:
604 985-0900
[email protected]
61
LAND IN BC
Bob Reid
Recent Amendments
to the Land Title Act:
a Torrens System of
Immediate Fee Simple Title
O
n November 24, 2005,
Royal Assent was
granted to provisions
amending the Land Title Act,
R.S.B.C. 1996, C. 250, in Bill
16, the Miscellaneous Statutes
Amendment Act (No. 2), 2005.
That changed the land title
registration system in British Columbia
to one in which a purchaser who acquires
the fee simple interest in a property
through a forged transfer and who
becomes the registered owner will have
“immediate indefeasibility,” provided he
or she did not participate in the fraud.
“Indefeasible” is defined in Black’s
Legal Dictionary, 4th ed., as “That
which cannot be defeated, revoked, or
made void. This term is usually applied
to an estate or right which cannot be
defeated.” Authorities have referred to
its meaning as being “unimpeachable,”
unexaminable,” and “conclusive.” It
means that once a title is registered, its
validity is guaranteed and immune from
attack.
Prior to the 2005 amendments, a
bona fide purchaser in British Columbia
who acquired his or her fee simple title
through a forged transfer had only
62
“deferred indefeasibility,” even if he or
she did not participate in the fraud.
The land title registration system is
often referred to as the Torrens system,
named after Robert Torrens who
established the system in Australia in
1858. And although aspects of a Torrens
system were introduced in the Colony of
British Columbia, it was not until 1899
that the principle of indefeasibility was
introduced.
The land title registration
system is often referred
to as the Torrens system,
named after Robert Torrens
who established the system
in Australia in 1858.
This article will discuss the difference
between the two systems—deferred and
immediate indefeasibility—and will
discuss a recent case from Saskatchewan,
CIBC v. Registrar of Titles [Saskatchewan],
[2005] SKQB 470, in which the judge
found the principle of immediate
indefeasibility did not apply to a bona
fide mortgagee who acquired its interest
through a forged instrument, even though
the Saskatchewan title registration system
was considered to be an “immediate
indefeasibility” jurisdiction.
The Scrivener
This article also will discuss how the
recent amendments have changed the
British Columbia system of land title
registrations and why a court in BC,
in determining the effect of the recent
amendments, should not adopt the
reasoning in the Saskatchewan case.
What is the difference between the
two systems?
1. Deferred Indefeasibility
The concept of deferred indefeasibility
was enunciated by the Privy Council
in a case from the State of Victoria in
Australia, Gibbs v. Messer, [1891] A.C.
248, in which the registered mortgagees
obtained their interest through a forged
mortgage. Their Lordships made an
important distinction between title and
identity. They held that the purchasers/
mortgagees must deal with the actual
person registered on title to ensure they
do not acquire their interest through a
forged instrument.
Note: Although in many Torrens
jurisdictions, the concept of
indefeasibility applies to both registered
fee simples and mortgages, that is not so
in British Columbia because the Court
of Appeal in Credit Foncier FrancoCanadian v. Bennett (1963), 43 W.W.R.
545, held that a forged mortgage is
governed by the common law—it is a
void instrument and does not confer
deferred indefeasibility even though
registered on title. Not only is the forged
mortgage not valid against the Real
Owner’s title, the fact that it is registered
does not provide a “good root of title” to
a bona fide assignee of the mortgage who
relies on the fact it is registered.
The recent amendments do not
affect the legal position of a lender
who takes its interest in the property
under a forged mortgage because the
amendments affect only the fee simple
title to a property. To avoid confusion
when discussing cases from jurisdictions
in which mortgages are indefeasible,
however, mortgagees will be referred to
in this article as purchasers.
In Gibbs v. Messer, the crook,
Cresswell, a lawyer, committed two
forgeries. First, he forged a transfer of the
registered title in fee simple into the name
of Hugh Cameron, a fictitious person.
Then, second, he forged a mortgage
document. The Privy Council found
that Cresswell in his dealings with the
McIntyres, the mortgagees, never claimed
to be the person registered on title; he
always represented himself as acting as
the agent for the registered owner, Hugh
Cameron. So when Cresswell signed the
mortgage document as Hugh Cameron,
he committed a forgery.
If he had claimed to be Hugh
Cameron, then he would have been
the person registered on title and
the mortgage instrument would not
have been a forgery and, if this had
occurred, the Privy Council stated that
the purchasers would have acquired
indefeasible title even though a fraud
would have been carried out on the
original owner, Mrs. Messer.
But the Privy Council held that
a forgery is a nullity at common law
and it is the responsibility of the bona
fide purchaser for value—a person who
does not participate in any fraud and
who relies on the register—to ensure
that he or she deals with the “registered
proprietor” on title. If he or she does not
deal with the Real Owner, then he or she
does not acquire an indefeasible title.
In a classic statement in Gibbs v.
Messer, Lord Watson, in explaining
the purpose of a land title registration
system, stated that:
the main object of the Act and the
legislative scheme for the attainment
of that object…is to save persons
dealing with registered proprietors
from the trouble and expense
of going behind the register, in
order to investigate the history of
their author’s title, and to satisfy
themselves of its validity.
Their Lordships made
an important distinction
between title and identity.
In other words, the State
“guarantees” title and the purchaser is
not required to search all the title deeds
for a “good, safe, and marketable” title—
he or she needs only to search the register
to determine who is the registered
owner. This was the purpose for the
development of the land title registration
system or “Torrens,” namely, to cut the
costs of title searches and to expedite the
process.
The Privy Council restricted the
purchaser’s right to obtain an indefeasible
title to those bona fide purchasers who
purchase from a “registered proprietor.”
Lord Watson stated that:
Everyone who purchases in bona
fide and for value, from a registered
proprietor [emphasis added]
and enters his deed of transfer
or mortgage on the register, shall
thereby acquire an indefeasible title,
notwithstanding the infirmity of his
author’s title. …The protection the
statute gives to persons transacting
on the faith of the register is, by its
terms, limited to those who actually
deal with and derive right from a
proprietor whose name is upon the
register. Those who deal, not with
the registered proprietor but with
a forger who uses his name, do not
transact on the faith of the register;
The Scrivener
and they cannot by registration of
a forged deed acquire a valid title
in their own person, although the
fact that they are registered will
enable them to pass a valid title to
third parties who purchase from
them in good faith and for onerous
consideration.
It makes no difference that a
purchaser is bona fide and is unaware
of the fraud being carried out by the
forger. A purchaser must acquire his or
her title through a transfer signed by the
person registered on title. On the other
hand, the purchaser’s registered title will
be effective to allow a second purchaser,
who has no knowledge of the fraud, who
relies on the register, and who acquires
title from the registered owner, to obtain
an indefeasible title when registered. The
second transfer is not a forgery.
This is why the first purchaser’s
interest acquired through a forged
transfer is referred to when registered as a
“deferred indefeasible” interest. Although
the first purchaser’s interest is void as
against the real owner, he or she has the
capability of passing an indefeasible title
to a second bona fide purchaser. Lord
Watson further stated:
Although a forged transfer or
mortgage, which is void at common
law, will when duly entered on
the register, become the root of a
valid title, in a bona vide purchaser
by force of the statute, there is no
enactment which makes indefeasible
the registered right of the transferee
or mortgagee under a null deed…
[the purchasers] dealt, not with a
registered proprietor, but with an
agent and forger, whose name was
not on the register, in reliance on
his honesty. In the opinion of their
Lordships, the duty of ascertaining
the identity of the principal for
whom an agent professes to act
with the person who stands on
the register as proprietor, and of
seeing that they get a genuine deed
executed by that principal rests with
the mortgagees themselves; and if
63
they accept a forgery they must bear
the consequences… .
Prior to the recent amendments
to the Land Title Act, the courts in
British Columbia have followed Gibbs
v. Messer—see Credit Foncier v. Bennett,
supra, and Kwan v. Kinsey (1979),
15 B.C.L.R. 31, 10 R.P.R. 44 (S.C.),
Vancouver City Savings Credit Union
v. Hu (2005), 31 R.P.R. (4th) 309
(B.C.S.C.).
Proponents of a “deferred” system
of indefeasibility argue that a Torrens
system only guarantees title and not
the identity of the registered owner and
that a purchaser must ensure he or she
deals with the actual registered owner.
A Torrens system is not intended to
implicitly repeal the common law rules
governing void instruments.
They argue that it is unfair and
unreasonable to allow a purchaser to
acquire indefeasible title and thereby
possession of the property as against an
innocent registered owner who had no
knowledge of the sale or way to protect
himself or herself from the fraud being
carried out against him or her.
The purchaser, they argue, is involved
in the transaction and thereby better
placed to ensure that he or she is dealing
with the person on title. Therefore, the
purchaser should bear the responsibility
and loss if he or she does not deal with the
person on title. By placing this onus on
the purchaser, it is expected that he or she
will not become careless in checking the
identity of the vendor.
Another argument against what is
referred to as “immediate indefeasibility”
system is that it is possible that an owner
in possession of the property could lose it
if a purchaser could establish that he or she
acted bona fide when he or she purchased
it from a crook. This is possible, but
unlikely to occur if the real owner is in
actual possession of the property.
On the other hand, critics of a
deferred indefeasibility system argue that
it is not possible for a bona fide purchaser
to protect himself or herself from dealing
64
with an astute crook who obtains false
identification documents. They claim
that a Torrens system should protect the
bona fide purchaser who relies on title
even though he or she does not deal with
the actual person on title because this
maintains the public’s confidence and
trust in the land title registration system.
A major problem eroding the
public’s perception of the fairness of
a deferred indefeasibility system is
that a bona fide purchaser who takes
all reasonable measures to ensure he
or she deals with the registered owner
but who, in fact, deals with an astute
crook, is unable to recover his or her
losses except from the crook and that is
highly unlikely. Whereas, even though
the “true” owner in an immediate
indefeasibility system would lose his or
her title to the property, he or she can
recover compensation for his or her loss
from the Assurance Fund.
…even though the “true”
owner in an immediate
indefeasibility system would
lose his or her title to the
property, he or she can
recover compensation…
Here are some examples of how a
deferred indefeasibility system applies to
different fact patterns. Let us assume that
the registered owner of Blackacre is Peter.
Scenario 1: Adam assumes the identity
of Peter and sells the property to Brenda.
When Adam, who obtains identification
documentation claiming to be Peter,
signs the transfer Form A as “Peter,”
it is a forgery and, according to Gibbs
v. Messer, Brenda does not acquire
indefeasible title because she did not deal
with Peter, but with a crook/Adam who
impersonated Peter. She did not deal
with the registered owner so the Form A
is a forgery and has no effect to transfer
title to her.
Peter is entitled to recover title to
Blackacre from Brenda who not only
loses title to Blackacre, she has no
The Scrivener
recourse against the Assurance Fund in
part 20 of the Land Title Act because
claimants must have lost an interest as
a result of the operation of the Torrens
system. See section 296(2)(a)(i), which
provides that the claimant must have
been deprived of an estate or interest in
land because of the conclusiveness of the
register, in circumstances where, if the
Act had not been passed, the claimant
would have been entitled to recover the
land from the present owner.
And at common law, a forged
transfer is a nullity; it is a void
instrument and a purchaser takes no
interest under it.
As the registered owner in fee
simple, however, Brenda has deferred
indefeasibility. A second bona fide
purchaser, Ida, who relies on the register
and who deals with the registered owner,
Brenda, will acquire indefeasibility when
she registers title in her name and Peter
will claim compensation for his loss of
Blackacre from the Assurance Fund.
Of course, Peter must first seek to
recover damages for his loss from Adam
and only if Adam is unable to pay the
damages or is dead or cannot be found
in British Columbia will Peter be entitled
to recovery damages and costs against the
Attorney General who was named as a
nominal defendant in the action against
Adam.
Similarly, a mortgagee, Fraser Bank,
who deals with Brenda and who becomes
a registered charge holder, has a valid
mortgage. When Peter recovers title
from Brenda, he recovers it subject to
the Fraser Bank mortgage, as Brenda did
not commit a forgery when she signed it.
Peter is entitled to seek damages against
the Assurance Fund to discharge the
Fraser Bank mortgage.
It is to be noted that Fraser Bank
would be entitled to commence
foreclosure proceedings against Blackacre
to recover the amount it is owed under
the mortgage; it probably would wait,
however, for Peter to recover under the
Assurance Fund. It could not, of course,
sue Peter personally for the mortgage
debt because he did not receive the
mortgage monies.
indefeasibility and Peter will be entitled
to recover his title.
Scenario 2: Adam forges Peter’s signature
on a Form A and transfers the title to
either his own name or to the name
of an alias, say, Stewart Thirsk. Then
when Adam transfers title to Brenda,
either as Adam or as Stewart Thirsk,
Brenda acquires her title from the actual
registered owner to Blackacre and does
not take title through a forged transfer.
There is no forgery. Peter loses his
title but can claim damages from the
Assurance Fund.
If Adam says no, then the name
Harold Snepts becomes his alias and
when he signs as Harold Snepts, it is not
a forgery and Brenda takes immediate
indefeasible title. The results in Scenario
2 apply because Brenda dealt with the
actual person on title even though he
was a crook and committing a fraud
against Peter.
Instead of transferring title to
Brenda, if Adam executed a mortgage
to Fraser Bank, either in his own name
or that of his alias, Stewart Thirsk, he
would not be committing a forgery
when he signed the mortgage and Fraser
Bank would obtain a valid mortgage.
Peter would recover title subject to the
mortgage, then claim damages for his
loss against the Assurance Fund because
the mortgage would have been void at
common law.
The initial transfer into the name
of either Adam or Stewart Thirsk was
a forgery and therefore a nullity and
nothing could flow from it, according
to the common law doctrine of nemo
dat qui non habet, “he who hath not
cannot give.” It would, however, provide
a deferred indefeasible title so that a bona
fide purchaser who relied on it would
acquire a valid title under the BC Torrens
system of land title registration because
he or she dealt with the registered owner
on title.
Scenario 3: Adam forges Peter’s signature
to a transfer form into the name of a
real person, say, Harold Snepts, and
assumes the identity of that person. In
negotiations for the sale of Blackacre,
Brenda asks Adam whether he is the
retired hockey player who played
defence for the Vancouver Canucks. If
Adam answers yes, then when he signs
the transfer form as Harold Snepts, it
is a forgery and the results in Scenario
1 apply. Brenda has only deferred
The trial judge held
that the mortgage was
a forgery and therefore
a nullity and the
mortgagee could not
claim recovery under the
Assurance Fund.
The facts in Scenario 3 are similar
to what occurred in CIBC v. Registrar of
Titles [Saskatchewan], where the crook
forged title into the name of an actual
person and then took out a mortgage
signing that person’s signature. The
trial judge held that the mortgage was
a forgery and therefore a nullity and
the mortgagee could not claim recovery
under the Assurance Fund.
II: Immediate Indefeasibility
In 1967 the Privy Council had the
opportunity to again review the operation
of a Torrens system, this time from New
Zealand, in Frazer v. Walker, [1967] A.C.
569, [1967] 1 All E.R. 649. In this case,
one of two co-owners forged the signature
of the other, namely, the wife forged her
husband’s signature to a mortgage.
The Privy Council chose to follow a
line of authorities interpreting the effect
of void instruments registered under the
New Zealand title registration system
that held that a registered owner who
derived his or her title through a forged
transfer is entitled to indefeasibility and
immune from adverse claims, other than
those specifically excepted in the Act.
The focus in these cases is not on
whether the bona fide purchaser acquired
The Scrivener
title through a forged transfer, but
whether a bona fide for value purchaser is
entitled to claim indefeasible title when
registered. Lord Wilberforce explained
the purpose of a Torrens system; it is
registration, not its antecedents, that
vests and divests title; it is registration
that confers indefeasibility to a bona fide
purchaser and protects the registered
owner from adverse claims, other than
those specifically excepted by the Act.
Gibbs v. Messer was distinguished
by finding that “no question there
arose as to the effect of such sections
as corresponded (under the very
similar Victorian Act) with sections
62 and 63 of the Act now under
consideration.” Lord Wilberforce stated
that their Lordships could not accept
the argument that a forged mortgage
could not be validly registered because
such an argument was destructive of
the whole system of registration and
that registration once effected must
attract the consequences which the
Act attaches to registration [emphasis
added].
Moreover, it was found that in
Gibbs v. Messer, the case involved a
transfer from a “fictitious person”
whereas in Frazer v. Walker, there was a
real registered proprietor. The fact that
Gibbs v. Messer was decided on the basis
of a forgery was ignored. Presumably,
therefore, a case with similar facts to
Gibbs v. Messer would be governed by
it and not by the reasoning in Frazer v.
Walker.
The Saskatchewan Court of Appeal
in Hermanson v. Martin (1986), 52
Sask. R. 164, 33 D.L.R. (4th) 12,
[1987] 1 W.W.R. 439, considered both
Privy Council decisions. In Hermanson,
a husband, who was a co-owner with
his wife, arranged for another woman
to impersonate his wife and sign her
signature to a transfer and thereby
committed a forgery. The Court chose
to follow the reasoning in Frazer v.
Walker, and found that the innocent
purchaser acquired “immediate”
indefeasible title on registration.
65
III: Effect of 2005 Amendments to British
Columbia’s Land Title Act
1. Prior to the Amendments:
Deferred Indefeasibility
In the past the authorities interpreting
the effect of BC’s Torrens system
followed the reasoning in Gibbs v. Messer,
namely, that of deferred indefeasibility.
In Kwan v. Kinsey, supra, the registered
owner was Pik Har Kwan. Her boyfriend
[Morriseau] forged her signature to
a mortgage in favour of Caledon
Investment Ltd. He then forged a
transfer of the fee simple to a purchaser,
Kinsey, who in turn executed a second
mortgage in favour of Morriseau.
The court restored Pik Har Kwan to
title; she regained title, however, subject
to the mortgage in favour of Morriseau.
Caledon and Kinsey were removed from
title and neither had a claim against the
Assurance Fund because they acquired
their interests from forged instruments.
The mortgage to Morriseau was valid
even though Kinsey’s registered title was
invalid; it was still the “root of good
title” and Morriseau dealt “on the faith
of the register” with the registered owner,
Kinsey. Pik Har Kwan was entitled to
claim damages from the Assurance Fund
to discharge Morriseau’s mortgage.
The Kwan v. Kinsey decision,
however, did not mention Frazer v.
Walker in the judge’s reasoning.
In Frazer v. Walker, a bona fide for
value purchaser who became registered
obtained indefeasibility unless the
statute specifically excepted it. In
British Columbia, did the statute
specifically except indefeasibility?
In 1979 an amendment enacted the
successor to section 297(3) of the
Land Title Act, namely, that “a person
taking under a void instrument is not a
purchaser and acquires no interest in the
land by registration of the instrument.”
Note: Section 297(3) was repealed by the
recent amendments.
The only sensible interpretation
of section 297(3) was that it applied to
the Act as a whole and therefore either
(i) codified the principle of deferred
66
indefeasibility as set out in Gibbs v.
Messer, i.e., deferred indefeasibility, or (ii)
codified the common law principle of
the null deed so that not even a second
bona fide purchaser could acquire a valid
indefeasible title. This latter interpretation
may seem harsh; in Credit Foncier v.
Bennett, however, the Court of Appeal
applied similar reasoning to a forged
mortgage even prior to the enactment of
the successor to section 297(3).
Therefore, prior to the 2005
amendments, a bona fide purchaser who
acquired title through a forged transfer
in British Columbia did not acquire an
immediate indefeasible title, but only a
deferred indefeasible title. And, arguably
not even a deferred indefeasible title,
if section 297(3) were interpreted as
codifying the common law principle of
the null deed.
The Task Force
recommended that the
system be changed to
ensure that “immediate”
indefeasibility was the
law in BC…
In an article in the December
1999 issue of The Scrivener, entitled
“Who Keeps the Lot?” (Vol. 8, No. 4,
pp. 52–57), I discussed whether the
land title registration system in BC
should be changed to an “immediate”
indefeasibility system. See other articles
in The Scrivener by me that discuss this
issue—“Indefeasible Title. Do We Have
a Torrens System of Title Registration
in BC?” April 2000, Vol. 9, No. 1, pp.
64–71, and “The BC Torrens System of
Land Registration: Recovery Under the
Assurance Fund in BC,” June 2005, Vol.
14, No. 2, pp. 68–73.
In 2000 the Director of Land Titles,
the late Malcolm McAvity, established a
Task Force (of which I was a member)
to review the question of deferred vs.
immediate indefeasibility and other
issues concerning the BC Torrens system.
The Task Force recommended that
The Scrivener
the system be changed to ensure that
“immediate” indefeasibility was the law
in BC with respect to fee simple titles.
The Task Force also recommended
two other changes be made: (i) that a bona
fide mortgagee be entitled to recover its
loss under a forged mortgage, and (ii) that
the real registered owner of the property
be allowed to retain possession of the
property if he or she could establish a
“substantial connection” to it.
If the Real Owner could establish
such a connection, then he or she would
retain ownership of the property and the
purchaser would be compensated from
the Assurance Fund. For example, the
property could have been in the owner’s
family for a number of generations.
Even though these recommendations
were not included in the recent
amendments, they may be considered in
a future review by a task force that the
Director of Land Titles would like to
organize to review these issues as well as
other matters concerning the land title
registration system.
2. The 2005 Amendments
Affecting Indefeasible Title
The change of the BC Torrens system to
an immediate indefeasibility system will
have a great beneficial effect on bona fide
purchasers for value who take fee simple
transfers under a forged transfer. In the
past, such a purchaser lost his or her
registered title to the property because
the Real Owner was entitled to recover it
and the purchaser was not eligible to be
compensated from the Assurance Fund.
The Land Title and Survey Authority
of British Columbia issued an information
bulletin stating that the recent
amendments “ensure immediate certainty
of land title for a person acting in good
faith, who unknowingly acquired a fee
simple interest in the property through a
forged transfer, provided the individual
did not participate in the fraud.”
The bulletin quotes the President
of the Law Society of British Columbia,
Ralston Alexander:
In summary, I note that the
proposed changes will work to
ensure legal fairness and protection
to both owners and purchasers of
property in British Columbia… .
The Law Society supports these
amendments, as they will increase
public confidence in our land title
system, which is highly regarded.
The Law Society of BC issued a
“Practice and Ethics” bulletin stating that
the recent amendments:
…provide greater certainty to BC
homebuyers who, through no fault
of their own, become entangled
in a fraudulent transfer… . As
lawyers know, the Assurance Fund
has long provided compensation
to individuals who are deprived
of title to real property due to an
error in the operation of the Land
Title Act or the administration of
the new land title system under
the Registrar’s direction. With the
most recent round of legislative
amendments, this basic protection
has been extended.
The effect of the amendments’
creating an immediate indefeasibility
system on existing registered fee
simple owners, however, is not quite
so beneficial. The amendments benefit
the bona fide purchaser who becomes
registered through a forged transfer,
whereas the Real Owner loses his or her
title and possession of the property, even
though he or she would be compensated
from the Assurance Fund for the loss.
For this to occur, the purchaser,
however, would have to establish that
he or she acted bona fide and this may
be difficult if the registered owner were
in possession of the property and the
purchaser bought without physically
inspecting the property.
Under a system of deferred
indefeasibility, a registered owner could
lose his or her title and property only
if there were two transfers. The forged
transfer to the first purchaser would be
void as against the Real Owner who
could recover his or her title. If, however,
the first purchaser transferred to a second
purchaser, then the Real Owner would
lose his or her title.
In this regard, however, it is
important to point out that the number
of frauds carried out by crooks forging
transfers has been extremely rare over a
long period of time.
…it is important to
point out that the
number of frauds carried
out by crooks forging
transfers has been
extremely rare over a
long period of time.
Is there an argument that the
amendments do not establish a system
of immediate indefeasibility for fee
simple titles?
1. Wording of section 25.1 of the Land
Title Act
Could the word “deemed” in the new
section 25.1 of the Land Title Act support
an argument that the amendments do
not establish a system of immediate
indefeasibility in BC?
Subsection (1) of section 25.1 states that:
subject to this section, a person who
purports to acquire land or an estate
of interest in land by registration of
a void instrument does not acquire
any estate or interest in the land on
registration of the interest.
Then subsection (2) states that
even though an instrument purporting
to transfer a fee simple estate is void,
a transferee who (a) is named in the
instrument, and (b) in good faith and
for valuable consideration, purports to
acquire the estate, is deemed [emphasis
added] to have acquired that estate on
registration of that instrument. And
subsection (3) does the same for existing
registered owners who may have acquired
their estates through a forged instrument.
Also, section 297(3) is repealed.
The Scrivener
The intent of section 25.1 is
clear—only void transfers of the fee
simple will be deemed valid. Mortgages
will continue to be void. But the word
“deemed” has distinct meanings in the
British Columbia Torrens system. It does
not have the same effect as the word
“conclusive” or “indefeasible” in section
23(2) of the Act.
In Credit Foncier v. Bennett, the
Court of Appeal contrasted the meaning
of the word “deemed” in section 26
of the Land Title Act (then section
41 of the Land Registry Act) dealing
with the “registration of a Charge,”
with the words “shall be conclusive
evidence” in section 23 of the Act (then
section 38). The Court found that the
omission of “conclusive” in section
26, together with the use of the word
“deemed,” which is capable of meaning
“rebuttably presumed,” implied that the
Legislature intended such omission to
be observed by assigning a meaning “not
conclusive” and raising only a rebuttable
presumption.
It would be difficult, however, to
make this argument in light of the intent
and wording of section 25.1. What
would rebut the presumption? A forged
transfer? The section expressly states
that a person who purports to acquire
land or an estate or interest in land by
registration of a void instrument does
not acquire any estate or interest in the
land on registration of the instrument.
The section then excepts a transferee
under a void instrument purporting
to transfer a fee simple estate who (a)
is named in the instrument and (b) in
good faith and for valuable consideration
purports to acquire the estate. How then
does one rebut the presumption that
such a transferee does not acquire an
indefeasible estate in fee simple?
In my opinion, the amendments
clearly establish immediate indefeasibility
as the system of title registration in
British Columbia.
67
2. Reliance by Courts on Gibbs v.
Messer
A second concern raised is the apparent
reluctance by judges to give up the
distinction between title and identity
established in Gibbs v. Messer that has
been followed faithfully in past cases.
The recent case in Saskatchewan,
CIBC v. Registrar of Titles [Saskatchewan],
is an example of a court’s reluctance
to apply the concept of immediate
indefeasibility. The general consensus
prior to this decision was that the land
title registration system in Saskatchewan
was an “immediate indefeasibility” system
based on the Hermanson decision of the
Saskatchewan Court of Appeal. It now
appears that immediate indefeasibility will
apply only in a situation where one of the
co-owners of the property participates in
the forged transfer.
In CIBC v. Registrar of Titles
[Saskatchewan], a crook whose real
identity was never discovered forged
the signatures of the registered owners,
the Neumanns, to a transfer form
authorizing the transfer of the fee simple
in the property, located in Saskatoon, to
a Mr. Trent Doerksen. Mr. Doerksen was
a real person, but he had no knowledge
of the transfer into his name or of the
fact that he was the registered owner on
title to the property.
The crook representing himself as
Mr. Trent Doerksen then applied for a
mortgage from CIBC through a mortgage
broker in Calgary. In support of the
application for the mortgage, the crook
submitted a Revenue Canada statement of
account in the name of Trent Doerksen.
CIBC approved the mortgage application
and retained a law firm in Saskatoon to
handle the mortgage documentation.
The crook presented himself at
the law firm as Trent Doerksen and
produced two pieces of identification—a
birth certificate and a Saskatchewan
health card, both in the name of Trent
Doerksen. The mortgage was signed
and registered and a law firm trust
cheque was issued in the name of Trent
Doerksen to a branch of the Royal Bank
68
of Canada in Saskatoon. The lawyers
later met with the real Trent Doerksen
and confirmed he was not the person
who attended at their law office.
According to Chief Justice J.R.D.
Laing, the narrow issue in the case was
whether a person who takes a mortgage
interest in land, not from the registered
owner, but from someone who forges
the registered owner’s name, is entitled
to remain on title after the forgery is
discovered.
A second concern raised
is the apparent reluctance
by judges to give up the
distinction between title
and identity…
CIBC was seeking a declaratory
order that it was entitled to be
reimbursed by the Registrar under the
Assurance Fund for the proceeds it
advanced on the fraudulent mortgage
registered in the land titles registry. The
parties had agreed that the title should be
restored to the rightful owners.
The Registrar based his argument not
to compensate CIBC on the reasoning in
Gibbs v. Messer and on provisions in the
Saskatchewan Land Titles Act, 2000.
CIBC argued it had immediate
indefeasible title because of the reasoning
in Hermanson and it made no difference
that it took its interest under a forged
mortgage, as long as it took a mortgage in
the name of the registered owner on title.
Laing C. J. reviewed the case law and
publications concerning this important
issue. He noted that Sigurdson J. in
Vancouver City Savings Credit Union v.
Hu, supra, cited the classic statement of
Lord Watson in Gibbs v. Messer explaining
the purpose of a Torrens system.
The Chief Justice referred to a
decision rendered February 1, 1998, by
the Deputy Director of Title for Ontario,
Nancy Sills, in In the Matter of Lorrie
Risman, appendixed to the article by
Sidney H. Troister in his article “Fraud in
The Scrivener
Real Estate Transactions: The Effects and
the Remedies,” contained in The Law
Society of Upper Canada Special Lectures
2002, Real Property Law: Conquering the
Complexities (Toronto: The Law Society
of Upper Canada, 2003).
Chief Justice Laing noted that Ms.
Mills, in her decision, observed that
the only case in Canada to apply the
doctrine of immediate indefeasibility was
Hermanson. She refused to apply Frazer v.
Walker or Hermanson to Ontario because
of the differences in statutory provisions
between the two jurisdictions—Ontario
specifically excluding void instruments
from the protection of indefeasibility.
Moreover, a cursory examination by the
Chief Justice of the case law in the other
Western Canadian provinces did not
disclose one case where a forged transfer
or interest was upheld.
The Chief Justice also noted that
although several jurisdictions specifically
addressed in their legislation the effect of
fraudulent and void documents, namely,
section 297(3) in the Land Title Act of
BC (repealed by the recent amendments)
and section 155 of the Land Titles Act,
R.S.O. 1990, c. L. 5, there was no
similar provision in the Saskatchewan Act.
Chief Justice Laing disagreed with
the argument by counsel for the Registrar
that section 54(3) of the Saskatchewan
Act is a limitation on the indefeasibility
of title provisions in the Act. He found
the indefeasibility provisions in the Act
to be part of the law and, as such, section
54(3) is subject to them. He held that
where the indefeasibility provisions in
the statute apply, they prevail.
BUT—and it is a very big BUT—he
concluded that “under the Act, before the
indefeasibility sections of the Act apply,
one must deal with a registered owner.”
In section 23 of the Saskatchewan Act, it
is only a person “proposing to take from
a registered owner a transfer or an interest
in land” to whom the balance of the
section has application. He stated that:
“section 23(1)(a) is simply a
statutory affirmation of the classic
statement on the purpose of the land
titles system articulated in Gibbs v.
Messer…that stated “the object is to
save persons dealing with registered
proprietors… .”
The Chief Justice then proceeded
to distinguish the decision of the
Saskatchewan Court of Appeal in
Hermanson by limiting its reasoning
to its facts, namely, that the purchaser
dealt with one of two co-owners on
title. And, although he acknowledged
that the decision is authority for the
doctrine of immediate indefeasibility in
Saskatchewan, his reasoning has left the
scope of its application very limited.
According to Chief Justice Laing, the
Hermanson decision is not opposed to the
interpretation he has placed on section 23
of the Saskatchewan statute because the
equivalent provision in effect at the time
that Hermanson was decided also referred
to the fact that a purchaser was required
to deal with a registered owner.
And, he finds that in both
Hermanson and Frazer v. Walker, the
purchaser dealt with one of the registered
co-owners on title. In Frazer v. Walker,
the forger/wife was one of the co-owners,
whereas in Hermanson, the forger was a
third person who impersonated one of
the co-owners, namely, the wife, and who
accompanied the other co-owner, the
husband, who participated in the fraud,
although he did not commit the forgery.
…so long as a purchaser
acts honestly and
reasonably, he or she is
entitled upon registration to
the protection of the Act…
Chief Justice Laing dismissed the
application of CIBC because:
[I]t did not take its interest from the
registered owner, and therefore does
not gain the benefit of the “curtain”
principle of the Torrens system
articulated in section 23 of the Act.
The result is the forged mortgage
The Scrivener
that it received from the fraudster
is a nullity at common law and is
unenforceable against the title.
But surely this distinction is
sophistical. The key issue in both
Hermanson and Frazer v. Walker was
whether a bona fide for value purchaser
who happened to acquire his or her
interest under a forged instrument was
entitled to claim indefeasibility for his
or her interest because registration once
effected must attract the consequences,
which the Act attaches to registration
(emphasis added).
In his reasoning, Laing C. J. chose
to ignore the rationale behind the
reasoning in both cases, namely, that it
is registration, not its antecedents, that
vests and divests title and protects the
registered proprietor from adverse claims,
other than those specifically excepted
by the statute. In Frazer v. Walker, the
Privy Council found that so long as a
purchaser acts honestly and reasonably,
he or she is entitled upon registration to
69
the protection of the Act, unless there is
a specific provision in the Act that takes
away this protection.
How then does the immediate
indefeasibility system operate in
Saskatchewan? If Hermanson is still good
law, as the Chief Justice claims, then it
is limited to its facts, namely, it applies
only in situations where one of the
registered co-owners commits the forgery
or participates in the fraud.
And, if the purchaser does not deal
with a registered owner on title, then
he or she takes deferred indefeasibility.
This severely limits the operation
of immediate indefeasibility in
Saskatchewan and elsewhere, if followed
by judges in other Torrens jurisdictions.
Is the reasoning of Chief Justice
Laing in CIBC v. Registrar of Titles
[Saskatchewan] applicable to the Land
Title Act of BC? Is there a requirement
in the Act that a purchaser of the fee
simple title deal with a registered owner
or proprietor?
Section 25.1(1) refers to a person
who purports to acquire land or an estate
or interest in land by registration…,
it does not mention from whom the
interest is acquired. Section 23(2) deals
with the effect of an indefeasible title: “an
indefeasible title, so long as it remains
in force and uncancelled, is conclusive
evidence at law and in equity, as against
the Crown and all other persons, that the
person named in the title is indefeasibly
entitled to an estate in fee simple to the
land described in the indefeasible title,”
subject to specific exceptions, one of
which is the recently amended subsection
(i)—“the right of a person deprived of
land to show fraud, including forgery,
in which the registered owner has
participated in any degree.”
Could it be argued that the effect
of section 23 only becomes operative
after the common law rule that a forgery
is a nullity is applied? But the Act does
incorporate the common law in section
25.1(1) and then specifically excepts it
for bona fide purchasers of the fee simple
in subsections (2) and (3). Moreover,
70
the amendments also repealed section
297(3)—the section that codified the
common law by stating that a person
taking under a void instrument is not a
purchaser and acquires no interest in the
land by registration of the instrument.
Section 29(2) of the Act refers to
“a person contracting or dealing with
or proposing to take from a registered
owner,” but it is concerned only with
the effect of notice of an unregistered
interest. And, even it is excepted by the
phrase, “Except in the case of fraud in
which he or she has participated.”
In BC a forged mortgage is
governed by the common
law—it is void and its
status is not changed by
the fact it is registered.
Therefore, the reasoning in the CIBC
v. Registrar of Titles, Saskatchewan case
should not be followed by a BC court
because there is no statutory requirement
in BC’s Land Title Act that a purchaser
take title from a registered proprietor.
Although in the past, the authorities in
British Columbia and in other Canadian
Torrens jurisdictions have adopted the
classic statement by Lord Watson in Gibbs
v. Messer that makes a distinction between
title and identity, it should no longer be
accepted as good law in BC now that
section 25.1 is the law and section 297(3)
has been repealed.
Better that judges in BC refer to the
reasoning of Lord Wilberforce in Frazer
v. Walker, namely, that the argument
that a forged instrument could not be
validly registered was destructive of the
whole system of registration and that
registration once effected must attract
the consequences which the Act attaches
to registration [emphasis added].
Conclusion
In my opinion, the effect of the recent
amendments to the Land Title Act is to
create a system of immediate indefeasibility
with respect to forged transfers of the fee
The Scrivener
simple interest, notwithstanding the use
of the word “deemed” in section 25.1 or
the reasoning of Chief Justice Laing in the
Saskatchewan decision.
But notwithstanding the recent
amendments, forged mortgages remain
a problem. How does a lender guarantee
that it is dealing with the actual
person who is the registered owner?
The Saskatchewan case is an excellent
example of identity theft where even the
signature of the attesting lawyer to the
forged signatures of the vendors on the
transfer form was a forgery. Fortunately,
this type of fraud is rare.
And, another problem is that it is
now possible for a registered owner to
lose his or her property to a bona fide
purchaser who acquires title from a forged
transfer. Even though the Real Owner
will be compensated from the Assurance
Fund, this may be small consolation for
the loss of his or her property.
The Director of Land Titles is
considering re-constituting a task force
to evaluate proposed statutory changes to
resolve these two problem issues.
(i) The effect of a forged mortgage
According to the Court of Appeal
in Credit Foncier v. Bennett, a forged
mortgage is a nullity and is not valid
against the Real Owner’s title. Nor does
the fact it is registered provide a “good
root of title” to a bona fide assignee of
the mortgage. In BC a forged mortgage
is governed by the common law—it is
void and its status is not changed by
the fact it is registered. The principle of
deferred indefeasibility does not apply to
mortgages in BC.
The mortgage will be struck off the
Real Owner’s title and the mortgagee/
lender will have no claim against the
Assurance Fund because it did not
lose its interest as a consequence of the
operation of the Torrens system.
In BC the mortgage lender’s only
recourse is against the crook/forger—a
hollow remedy at best. Future legislative
changes to the Land Title Act may
contain changes that either provide
��
immediate indefeasibility to forged mortgages or provide for
compensation to bona fide mortgagees and assignees.
(ii) The effect of immediate indefeasibility on existing
registered owners
Under the changes to the Land Title Act, an existing fee simple
owner can lose his or her title to a bona fide purchaser who
acquires title under a forged transfer. With respect to this issue,
future legislative changes may adopt the recommendation of
the previous Task Force that a registered owner who loses title
as a consequence of the operation of immediate indefeasibility
be allowed to argue that he or she should be entitled to have
title returned on the basis that he or she has a “substantial
connection” to the land. Or, the changes may adopt the New
Brunswick model in which an owner in possession cannot lose
title; instead the purchaser is compensated for its loss.
The possibility of a fraudulent transaction affecting a
person’s title or interest to property is very slight. In fact, it is
extremely slight. The track record of claims in the history of
the BC Torrens system, which goes back well over a hundred
years, demonstrates a very low ratio of claim compared with
the volume of real estate transactions or the total number of
active titles in the province. The average annual total value of
claims paid by the Fund is approximately $150,000 a year.
Therefore, property owners should not worry about the
state of title to their ownership of land.
Moreover, changes to the land title registration system
may occur though future amendments to legislation as the
Land Title and Survey Authority in conjunction with the
province continues to improve an already world-class Torrens
system and further increase public confidence in it.
Note: There is an exception to a registered owner’s indefeasible
title of which many are unaware. It involves the situation of the
first indefeasible title registered. It is void as against the title of
a person adversely in actual possession of and rightly entitled to
the land included in the indefeasible title at the time registration
was applied for and who continues in actual possession:
section 23(4) of the Land Title Act. Could such a claim based
on adverse possession arise today?
For a person to acquire title by adverse possession, he or
she would have had to be in adverse possession for 60 years
prior to 1970 on Crown land and for 20 years prior to 1975 on
private, unregistered land. (See section 8, Land Act, R.S.B.C.
1996, c. 245 and sections 3(4)(j), 12, and 14 of the Limitation
Act, R.S.B.C. 1996, c. 266.) It appears doubtful that a claim of
adverse possession could arise today; recently, however, there
was a decision in which the Canadian Pacific Railway obtained
title under the doctrine of adverse possession. ▲
�
�
�
��
��
��
��
�
Robert S. Reid is an associate professor emeritus of law.
He retired from the Faculty of Law at UBC on June 2003. He
remains a member of the Notary Board of Examiners and
teaches our graduating BC Notaries. He is also a member
of the Board of Directors of the Land Title and Survey
Authority.
The Scrivener
71
HARMONY IN THE WORKPLACE
Carla Rieger
Six Tips
for Turning Around
Negativity at Work
Conflict is like wind.
Too much causes destruction of
people and property.
Too little and no transformation
can occur.
A client of mine (a manager) was
having a perfectly wonderful day when
a man called to complain about one of
the manager’s employees. The exchange
affected his entire day, plus his weekend,
his sleep, and his ability to concentrate
on important priorities.
How often do you let a negative
interaction ruin your peace of mind? It
Once fear or anger is
triggered, your quality of
judgment, communication
skills, and your ability to
see solutions all decrease.
doesn’t have to happen. Here are six tips
that can help you turn around negative
interaction.
1. “What has happened that makes
you think__________?”
Communication breakdowns are
common in every workplace. There
are many steps you can take to either
prevent those breakdowns or mitigate
the damage. Escalation usually occurs
when someone jumps to conclusions.
Check out assumptions before you react
by asking a simple question that starts
with these words: “What has happened
that makes you think _____?” or “What
makes you say ____?” You will be
amazed at how quickly you can diffuse
the situation by getting clear on the facts.
For example:
Customer: “You people here are so
unprofessional!”
Response (in a calm, respectful, matterof-fact tone): “What has happened that
makes you think we are unprofessional?”
72
The Scrivener
Customer: “You filled out this form
incorrectly and now I’m going to lose my
credit rating!”
Response: “I can see why you’d be upset.
I can assure you that this error will be
corrected immediately and it will not
affect your credit rating. Just for future
reference, it is not our department that
creates these forms, but we are happy to
help you sort it out.”
2. Call a “Time Out”
If your back brain (or fight-or-flight
response) gets triggered by a negative
interaction, you know you are feeling
either afraid or angry. Once fear or
anger is triggered, your quality of
judgment, communication skills, and
your ability to see solutions all decrease.
Your physiology prepares to attack or
run away. Adrenaline pumps into the
bloodstream, heart rate increases, blood
pressure goes up, muscles tense, voice
changes pitch, pupils enlarge, etc. It is
only when your physiology returns to
normal that you can have a constructive
conversation. Try taking a walk down the
hall and take some long, slow breaths or
simply count to 10 before responding.
3. Vent your negative feelings in a
constructive way
If technique #2 doesn’t work, take a
longer break. Calmly and respectfully
re-schedule a discussion for later in the
day, when you’ve had time to reflect.
Go for a vigorous walk or run, write out
your thoughts, or talk out the situation
with an objective third party. Once you
diffuse the negativity, you will be able
to see win-win solutions that were not
apparent before.
4. State a collaborative intent
Once back in the conversation, start with
such words as, “I would like to find an
outcome to this issue that works for both
of us (or for all parties concerned).” Or
“My intent is to figure out a way where
you can get what you need in a way that
works for all of us.”
5. Reframe the situation in the
positive
Summarize the other person’s complaint,
then re-state it in positive terms. For
example, “You say you feel that the new
schedule is unfair. It sounds like it is
unworkable for you because of family
commitments. So what you are really
looking for is a schedule that works for
your job as well as for your family. Is that
correct?” After the response, say, “My
intent is the same: I want you to meet
your family commitments and for us to
meet our obligations to our customers.
Let’s put our heads together and I’m sure
we can find a workable solution.”
6. Think outside the box
Once you have cleared up assumptions,
vented negativity in a constructive
way, stated a collaborative intent, and
reframed the needs in a positive way,
you will start to see possibilities. Take
a few minutes to simply brainstorm on
a number of possible solutions without
editing the ideas. Once your list is in
place, you two can choose the one(s) that
would best serve the needs of all people
concerned. ▲
Carla Rieger leads staff development
sessions and facilitated meetings and
serves as a leadership coach to turn
around negativity at work.
Voice: 604 267-2381
[email protected]
www.carlarieger.com/keynotes_and_
programs/
The Scrivener
73
TECHNOLOGY
Timothy Perrin
Winning the Paper Chase:
a New Look at Scanners
W
hen was the last time
you made a trip to
your file storeroom?
Did you look around in despair at
the boxes and boxes of old files, paper
than hasn’t seen daylight since Pierre
Trudeau was Prime Minister—the first
time?
One of the great inventions of the
computer age is the scanner. If you spend
a bit of money on a good scanner and
use it wisely, it will pay you back many
times over.
A good scanner is not a $50 bargain
flatbed unit. Scanning more than a few
pages on such a machine is nothing but
a bother. For a scanner that will help you
in your business, you’re going to have to
spend a little money.
not a proprietary one. I should not
be tied to one company and its
hardware and software.
• Fourth, it should be no larger than
absolutely necessary. Desktop real
estate is a precious commodity.
An example of a “good” scanner is
the Fujitsu ScanSnap series (http://www.
fujitsu.ca/products/scansnap/). There are
undoubtedly others.
• Second, it must have a sheet feeder
for unattended operation. I should
be able to load up a stack of paper
and go away to do something else.
I tested ScanSnap—a tiny unit,
smaller than most fax machines. It takes
up only a bit of desk space, a fraction
of my flatbed scanner’s footprint. But
ScanSnap took double-sided pages and
turned them into Adobe Acrobat PDF
files at the rate of 15 sheets per minute.
And, since it takes a stack of sheets in its
sheet feeder, you simply load in a group
of documents, hit scan, then go about
your business.
• Third, it must scan documents into
a useful, commonly used format,
Before you know it, the scanner is
done. You rename the document file,
A good scanner has four
characteristics.
• First, a good scanner must be FAST.
It should process many pages per
minute, not just a few.
74
This scanner is so fast that
I found myself tearing
books apart to scan them
onto my computer before
my European trip.
The Scrivener
move it to an appropriate folder on your
computer, and you are done.
This scanner is so fast that I found
myself tearing books apart to scan them
onto my computer before my European
trip. I wanted to have the book with me
but didn’t want to have to carry it on
paper. While I love the feel of a book in
my hands, if you’re living out of a van for
a year, you want to keep your possessions
to a minimum. Putting my library into
electronic form was a real advantage.
ScanSnap did that for me.
When I had to send it back, I did
something I have never done before; I
asked if I could hang on to it for a few
more weeks until it was time to leave on
my trip. The good folks at Fujitsu said
Yes, for which I was extremely grateful.
I play with a lot of hardware and
software in preparing this column. Much
of it, you never even hear about because
it’s ho-hum. It almost always goes back
without a fuss. This one I wanted to
keep. In fact, when I get back from
my year away, I expect I’ll be buying a
ScanSnap. It’s a great machine.
The ScanSnap also allowed me to
finally get a start on cleaning up those
boxes of old law files taking up space in
my garage. By spending a few minutes
each day scanning them while I was
working at other things, I was slowly
making headway on getting rid of the
boxes of files I don’t really need. I’m
burning the scanned files to DVDs,
which I can put on a shelf in my office.
And that is what you should be
doing in your office.
How many boxes of old files do
you have? How much do you pay each
month for storage? How much of what is
in those files really needs to be on paper?
A few Certificates of Title and not much
more. The rest could just as easily be
scanned.
Ah, but there’s a large staff cost in
such a project, you say. Actually, not that
much. When I was practising law, a very
bright young woman from the local high
school came in each afternoon to handle
filing and send clients their copies of
material going into the file. There is no
reason you couldn’t hire such a student.
Teach this person what NOT to shred
and always to ask if there’s any doubt
about a particular document. Then sit
back and watch your fileroom gradually
empty.
File-Closing Procedures
Scanners are only part of the picture. In
the end, there really is not a whole lot
that needs to be scanned; an aggressive
stripping of a file on closing is also part
of the key to keeping paper clutter to a
minimum. In my office, when we closed
a file, we stripped out the following.
• Anything we had originated. We
already had that on our hard drive—
and backup.
• Anything that had originated in
another office. They should have
that in their files.
• Anything that had been filed in
court or any other official agency.
There was a copy there.
We could do this because we also
had been very diligent about ensuring
that clients got copies of every single
piece of paper that went into their files.
Every week, every client received copies
of all correspondence, phone notes,
filings, and everything else. If a client
ever asked for the file, I simply pointed
out that she already had it. If she wanted
another copy, I charged for it.
*
*
*
Another kind of scanner worth a
look is even smaller than the ScanSnap
and its brethren. It is a pen scanner.
These come in two flavours.
First are the scanners that are literally
the size of a pen but with a wider tip.
An example of this is the QuickLink Pen
(http://www.quicklinkpen.com/). You
swipe the tip across the text you want to
scan, as you would use a highlighter; it
picks up the letters for later transfer to
your computer.
The others are a bit longer—too
long to fit in your pocket. Take a look
in your flatbed scanner. See the part that
actually moves? Imagine taking that out
and putting it in your hand. Now, you
move it down the page by hand. Now
you’ve got the picture.
An example of this is the Planon
Docupen (http://www.planon.com/
docupen.php). These types of scanners
are very useful when you want to capture
material while you are doing research in
a library, for example. You really can’t
take your flatbed scanner with you and
libraries frown on people tearing out
pages to feed them through a single-sheet
scanner, so these kinds of pen scanners
are a perfect solution.
Scanners of all kinds have made
the digitalization of printed material
an easy task. Though the paperless
office still seems like it will never arrive,
it’s only because we haven’t made it
happen. You can have it if you want it.
Good computers, good electronic filing
protocols, good indexing software like
X1, and good scanning procedures make
it all possible. ▲
Timothy Perrin, a former lawyer, writes
about technology and other topics.
He is currently in Europe researching
books on Hannibal and 21st Century
technology.
www.TimothyPerrin.com
The Scrivener
75
PEOPLE
Notary Nick Aubin and his bride Brenda
Aubin at Tulum
Brenda and Nick Aubin took a
belated Honeymoon trip to Playa del
Carmen, on the Mayan Riviera in
early March. “We had an wonderfully
relaxing time at the resort and local area
and stayed at the Barceló Colonial—the
now-infamous resort!” Nick says
that area of Mexico was “absolutely
amazing, with beautiful ocean colours,
great beaches, and neat fish. The beach
at the Tulum ruins was fabulous—
wonderful white sand and no rocks or
coral. We will return soon!”
Notary Akash Sablok, Chair of The
Scrivener’s Magazine Committee, and his
bride Rajdeep Grewal were married
March 11, 2006, in a very colourful
traditional ceremony at the Indian
Cultural Centre in Richmond. Akash is
the younger son of longtime BC Notary
Tarlok Sablok and his wife Shabnam
Sablok. Photo by Rick Evans.
Congratulations to Dennis Kiffiak who
has accepted the position of Manager of
Major and Planned Gifts for the Union
Gospel Mission. Dennis has worked at
UGM for four years.
The Scrivener
Notary Leona Bailey and her partner
Siegfried visited Mayan ruins in Belize in
the jungle near Orange Walk and enjoyed
Ambergris Caye on the Barrier Reef. They
also cycled, sailed, and snorkelled!
Happy Birthday to Marilyn
MacDonald, our talented graphic artist!
Please see next page ➔
77
PEOPLE
Celebrating the Year of the Dog
On Friday, February 3, the Vancouver
Chapter celebrated Chinese New Year
at Floata restaurant, where 110 Notaries
and their guests enjoyed a 10-course
dinner. Entertainment included
rhythmic dancing by Rosalyn Mow,
daughter of Notary Susan Tong, and
music by Notary Esther Chiu’s trio.
Magician Rod Chow, Canadian
National Magic Champion and brother
of Notary Reg Chow, performed a magic
show comprised of several acts, featuring
the international award-winning magic
of Jack Chow—three-time Pacific Coast
and two-time Vancouver Magic Circle
Junior Champion—and assistant Juliana
Chow, daughter of Reg Chow; and
Nicholas Chow—the youngest Pacific
Coast Magic Champion—and Melody
Choi, named Best Assistant for 2005 by
the Society of American Magicians.
During the festivities, $515 was
raised for the Union Gospel Mission on
Cordova.
Rosalyn Mow
Rod Chow
Doug Parton, Vancouver Chapter Chair
From left: Reg Chow, Jack Chow, Melody
Choi, Rod Chow, Tarlok Sablok, Raj
Sablok, Juliana Chow, Nicholas Chow,
Akash Sablok, and Shabnam Sablok
Handbells: Esther Chiu; Chinese harp:
Albert Lee; bamboo flute: John Yuen
Thanks to the sponsors who
donated prizes: Stewart Title, City-Core
Messenger Services Ltd., Royal Bank,
and Lyon Flynn & Collins Surveyors.
New Year’s Eve 2005 completely
disappeared from Kate Greening’s
calendar as she flew out of San Francisco
December 30, arriving in Auckland, New
Zealand, l2 hours later on January l, 2006!
She went to visit her first grandniece,
Kayla Tepunemate (Tay-poona-mattay)
Wood, born in June to Leo Wood and
Kaylene Walker. It was love at first sight!
Kate spent eight days in Omapere
(Ooh-mah-puree) in the Hokianga, where
she was guided through the Waipoua
Forest by Maori who sang the legends of
their land.
Trevor Todd, Judith Milliken, and their
son Lachie recently enjoyed a three-week
vacation in Argentina. Trevor and Judy
did a mean tango in Buenos Aires—Olé!
78
Kayla, the wedding of Katie (another
niece) and Diego, friendly people, flat
whites (Down Under coffee drinks), an
awesome spa, deserted beaches on the
Tasman Sea, and wonderful hot sun . . .
ahhh, New Zealand!
The Scrivener
Kayla Tepunemate Wood

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