B.C. Supreme Court Civil Rules for Contested Wills Should be Changed

 

Seven years ago, the British Columbia probate rules were overhauled when the Wills, Estates and Succession Act came into effect on March 31, 2014. The changes to the Supreme Court Civil Rules were intended to reduce the complexity and costs of proceeding related to wills and estates. In my experience some of the changes, particularly related to litigation concerning the validity of wills, has had the opposite effect, making litigation more complex and expensive. It is time for a review of the rules.

Most wills in British Columbia are not contested, and the process for probating (in other words proving) a will is not particularly complex. It involves the executor providing notice to beneficiaries and certain relatives of the deceased, and then filing the original will, a submission and affidavits.

But when someone argues that the will is invalid, then it is usually necessary to follow a different process referred to as “proving the will in solemn form.” This is a contested proceeding in which the Supreme Court of British Columbia determines whether the will is valid. These disputes often center around questions about whether the will-maker knew and approved of the contents of the will, had the mental capacity to make the will, and whether she was acting freely and voluntarily, as opposed to being pressured to make her will. Although many of these cases do settle, when they don’t it is usually necessary for each party to conduct a full investigation of the case, including examining the opposing party before trial, obtaining the file from the lawyer who prepared the will, and if capacity is in question getting the medical files and obtaining expert medical and psychological opinions. The facts may be hotly contested. Ultimately, the court may need to determine the validity of a will after a full trial, in which witnesses testify and are cross examined.

Before the Rules were changed in 2014, proving a will in solemn form was usually commenced by a notice of civil claim. This is the method most lawsuits involving contested facts are commence in British Columbia, from personal injury claims to wills variation proceedings. The notice of civil claim sets out the claim, the material facts alleged in support of the claim, and a summary of the legal basis for the claim. The defendants may file responses. Then each party is required to list all of the documents in their possession or control that may prove or disprove a material fact, and each party may examine the adverse parties under oath before trial. There are also rules intended to facilitate obtaining information form third parties. Ultimately, the issues are determined by a trial, although in some cases the trial may proceed on the basis of affidavit evidence, particularly where the conflicts in the evidence may be resolved without live testimony.

When the Rules were revised in 2014, they required that a proof-in-solemn form proceeding must be commenced either by an application in an existing lawsuit, or by petition. This is set out in Rule 25-14.  here is no provision allowing someone to begin the process by a notice of civil claim. Although the old rules did provide for a petition in some cases, these were rare and claims were commenced for the most part by a notice of civil claim.

A petition is a useful process for certain types of clams. For example, Rule 2-1 (2) (c) provides that a proceeding may be commenced by a petition if “the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract or other document.” A proceeding to interpret a will, where there is no question of its validity, can usually be resolved on the basis of the will itself, and affidavit evidence setting out the surrounding circumstances, such as the relationships between the will-maker and the beneficiaries. The contest is usually about how to interpret the will and facts, as opposed to a dispute about what the facts are (there are of course exceptions). Examinations for discovery and oral testimony are usually not required for the court to resolve the dispute. Petition proceedings are generally less expensive than a trial.

The problem is that petitions do not lend themselves to deciding the types of issues that arise when the validity of a will is contested. Fortunately, there are other rules that allow the court to change the process from a petition-type of proceeding to an action, or do give further directions on the process. These rules are set out in 22-1 (7) and 25-14 (8).

In practice what often happens is that the person wishing to commence a proof in solemn form proceeding will have to prepare, file and serve a petition together with supporting affidavits. Then either the petitioner or one of the respondents makes an application to convert the process into an action, or in other words, the type of process that is brought by notice of civil claim. Often, the order requires a notice of civil claim to be filed and served. The end result is that both time and money have been consumed by beginning the process with a petition and affidavits and then proceeding with a notice of civil claim. I have not kept track of the additional expense, but I suspect this process probably adds between $10,000 and $20,000 to most contested wills proceedings, and it takes additional court time because a judge or court master will often hear the application to change the process.

The other thing I have noticed is that some lawyers are ignoring the Rules altogether and beginning a proof in solemn form proceeding by a notice of civil claim.

I am not aware of any planned reviews of the probate rules, but it is time that the Supreme Court Civil Rules Committee did so.

Proposed Legislation Recognizes Electronic Wills in British Columbia

The British Columbia Government has introduced legislation to allow digital wills. There are two main components of Bill 21 – 2020: Wills,Estates and Succession Amendment Act, 2020. First, if passed and brought into effect the legislation will provide that a will-maker may make a will digitally, and the witnesses may also sign digitally. Secondly, the legislation will allow the will to be witnessed remotely, in a manner similar to that provided by the emergency order during the Covid – 19 state of emergency.

The legislation amends section 37 of the Will, Estates and Succession Act, which sets out the formal signing and witnessing requirements for a valid will to recognized wills in electronic form by adding the following subsections:

(3) The requirement under subsection (1) (a) that a will be in writing is satisfied if the will is in electronic form.

(4) An electronic will is a will for all purposes of this Act and any other enactment.

A new section 35.3 recognizes electronic signatures:

35.3 (1) For the purposes of sections 37, 40, 43, 62 and 77,

(a) a reference to a signature includes an electronic signature and a reference to a statement being signed includes the statement being signed electronically, and

(b) a requirement for the signature of a person is satisfied by an electronic signature.

(2) Section 39 (1) [clarification of doubt about signature placement] does not apply to an electronic will.

(3) An electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent the will-maker intended to give effect to the entire will.

Section 54.1 provides that to alter an electronic will, the will-maker must make a new will.

There is also a new section providing for how an electronic will is revoked (you don’t have to smash your computer):

55.1 (1) An electronic will or part of an electronic will is revoked only in one or more of the following circumstances:

(a) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, deleting one or more electronic versions of the will or of part of the will with the intention of revoking it;

(b) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of a paper copy of the will in some manner, in the presence of a witness, with the intention of revoking all or part of the will;

(c) the circumstances described in section 55 (1) (a) and (b) [how to revoke will];

(d) by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker's direction, if the court determines under section 58 [court order curing deficiencies] that

(i) the consequence of the act of the will-maker or the other person is apparent, and

(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.

(2) A written declaration made in accordance with section 55 (1) (b) may be in electronic form and signed with an electronic signature.

(3) For certainty, an inadvertent deletion of one or more electronic versions of a will or part of a will is not evidence of an intention to revoke the will.

Section 35.2 is the section that will allow remote witnessing of wills. It says:

35.2 (1) In this Part, except in section 38, a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other's electronic presence.

(2) For certainty, nothing in this section prevents some of the persons described in subsection (1) from being physically present and others from being electronically present when the action is taken.

(3) If a will-maker and witnesses are in each other's electronic presence when the will-maker makes a will, the will may be made by signing complete and identical copies of the will in counterpart.

(4) Copies of a will in counterpart are deemed to be identical even if there are non-substantive differences in the format of the copies.

Section 35.2 will be retrospective to March 18, 2020.  

Proposed Amendments to the Wills, Estates and Succession Act

The British Columbia government has introduced changes to the Wills, Estates and Succession Act. The Attorney General Statutes AmendmentAct, 2019, if enacted, will include changes to sections 16, 61, 130, 131, 151, 152 and 155. I will highlight some of the changes to sections 151 and 155.

Section 151 permits a beneficiary of an estate to apply to court to make or defend a claim on behalf of the estate if the personal representative does not do so. For example, a beneficiary of an estate may wish to make a claim that a house that the surviving joint tenant of the deceased’s house holds the house in trust for the estate, while the surviving joint tenant claims beneficial ownership. If the personal representative refuses to pursue a claim, or perhaps the personal representative is also the surviving joint tenant, the beneficiary may apply to court pursuant to section 151 for permission to bring the claim.

The current wording in section 151 only allows “a beneficiary or intestate successor” to apply. What if the person who wishes to make a claim is not currently a beneficiary of the will, but is making a claim as a child or spouse of the deceased to vary the will so that she will receive a share of the estate? Section 151 does not appear to apply to the wills variation claimant to allow her to apply for leave to sue. This is what occurred in Sharma v. Sharma, 2018 BCSC 1262, which I wrote about here.

The proposed changes to section 151 will allow a wills variation claimant to apply under that section. Instead of referring to “a beneficiary or an intestate successor,” the section will refer to a “specified person,” which is defined as “a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].”

The current wording of section 151 also requires a person who is given permission to sue on behalf of the estate to bring the claim “in the name of and on behalf of the personal representative.” If the claim is against the personal representative this leads to the absurdity of the same person appearing in the style of cause as both a plaintiff and a defendant. For example, the style of cause may be John Smith as executor of the will of Mary Smith v. John Smith. If I may put it technically, a person appearing as both a plaintiff and a defendant is a pretty big no no.

The proposed changes include amending section 151 so that the claim will be brought “in the name of the specified person and on behalf of the estate,” which will solve the problem of the same person’s name appearing as both a plaintiff and a defendant.

Section 155 provides that the personal representative must not distribute the estate within 210 days of the estate grant, or longer if a wills variation or certain other type of proceeding is brought. However, as the section is currently worded, the personal representative may distribute

(a)   with the consent of all beneficiaries and intestate successors entitled to the estate, or

(b)   by order of the court.

The problem with this wording is that it does not expressly require the consent of a person who is not a beneficiary, but who may bring a wills variation claim. I would argue that the main purpose of this section is to ensure that a person with a wills variation claim has the opportunity to proceed before the estate can be distributed. The 210 days from an estate grant corresponds with the amount of time to both file a wills variation claim (180 days) and serve the claim on the personal representative (a further 30 days).

The proposed amendments will require the consent of

(a) all beneficiaries who have an interest in the estate;

(b) all persons who may commence a proceeding under Division 6 [Variation of Wills] of Part 4 [Wills] in relation to the estate.

This will make it clear that the personal representative will require the consent of the deceased’s spouse and children, whether or not they are beneficiaries of the will.

There is one proposed change that I don’t like. Proposed new section 155 (1.3) provides:

(1.3) Despite subsections (1.1) and (1.2), the personal representative of a deceased person may distribute the estate of the deceased person without the consent of one or more persons whose consent would otherwise be required if the personal representative sets aside all of the following:

(a) all the specific gifts to beneficiaries who have not been located;

(b) a sum equal to the share of the residue of all beneficiaries who

(i) have an interest in the residue, and

(ii) have not been located;

(c) a sum equal to the share of the estate of all intestate successors who

(i) have an interest in the estate, and

(ii) have not been located;

(d) a sum equal to an amount sufficient to satisfy any claim under Division 6 [Variation of Wills] of Part 4 [Wills] in relation to the estate.

Subsections (a), (b) and (c) are fine, but (d) concerns me. The nature of wills variation claims is such that it is difficult to predict how much will be awarded to a claimant. One might think for example if the deceased left his entire estate to two of three children, that setting aside one-third for the disinherited child making a wills variation claim, but it is quite possible that the disinherited child will receive more, particularly if the other children received significant amounts from the deceased outside of the estate. Although the personal representative is supposed to be neutral in wills variation claims, it is not unusual for the personal representative to be hostile towards the claimant and it may underestimate the potential claim. It is preferable to require the personal representative to make a court application before making a distribution without the consent of the wills variation claimant.

Land Owner Transparency Act White Paper

The Government of British Columbia has published a White Paper  setting out draft legislation that would require registration of interests  in land in land that do not appear on title. You can read the White Paper here.

Comments are due by August 19, 2018, and you may send your comments as follows:

fcsp@gov.bc.ca
or mailed to: Financial and Corporate Sector Policy Branch Ministry of Finance PO Box 9418 Stn Prov Govt Victoria BC V8W 9V1 

On my initial reading of this legislation, it does not appear well thought out, or well drafted. The introduction by the Minister of Finance includes the following Trumpian rhetoric:

For too long, people have used legal entities to hide the true ownership of real estate in B.C. The use of entities such as numbered companies, offshore and domestic trusts, and corporations has made it difficult to expose tax frauds and those engaged in money laundering. 

This problem is well documented. In 2016, Transparency International Canada released a report indicating that of the 100 most valuable residential properties in Greater Vancouver, nearly one-third were owned by shell companies. Furthermore, data leaks such as the Panama Papers and the Paradise Papers have provided examples of Canada’s reputation as an attractive place to create anonymous companies and hide wealth.  

The reality is that the vast majority of corporations and trusts that have an interest in land have nothing to do with tax evasion or money laundering.  I rather doubt anyone engaged in money laundering is going to register if this legislation is passed. It will primarily affect ordinary business persons who legitimately incorporate their businesses, and  ordinary people who use trusts for estate planning to provide for their spouses, children and grandchildren. It is unnecessarily intrusive and bureaucratic.

Report on Vulnerable Investors

The Canadian Foundation for Advancement of Investor Rights and the Canadian Centre for Elder Law have published their Report on Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence and Diminished Mental Capacity.  The report is co-authored by Marian Passmore and Laura Tamblyn Watts. 

As set out in the Executive Summary:

The report focuses on two main areas of specific challenge for vulnerable investors: 

i. Elder financial abuse and undue influence: A person or persons may be trying to financially exploit the investor through a variety of forms of elder abuse, which can include abuse of a power of attorney or other legal authority, fraud, theft, threats, misuse of funds, coercion, abuse of trust, physical threats or by other means. Additionally, a client may exhibit behaviour or provide instructions to a financial services representative that the representative believes to be unduly influenced by a person close to the client.  

ii. Diminished capacity: A client may lose the capacity to provide instructions to a representative, due to dementia, a psycho-social or developmental disability or health reasons such as episodic delirium or medication use. The representative, staff member or compliance officer may be concerned that trades are radically different than previously, or that the client is exhibiting erratic behaviour or is forgetful. If the client does not have a functioning enduring power of attorney on file, this situation can become very complex and delicate.  

A representative or staff member who observes signs of elder financial abuse or undue influence, or diminished mental capacity, may want to assist and/or take protective action, but be unsure about whom to contact, his or her authority to act, and the legal ramifications of notifying others or not following the client’s disbursement instructions. 

Depending on the circumstances, these situations may warrant protective action. A representative may want to notify a person close to the client, report a suspected abuser to the authorities, or prevent the disbursement of funds from a client’s account. Currently, Canada’s securities regulatory regime does not equip representatives to protect vulnerable investors in these ways. There are many reasons for this, spanning from inadequate training on mental capacity and undue influence, to unclear reporting requirements and processes, to insufficient regulatory guidance and protection for representatives who want to take protective action. As a result, many representatives are unfamiliar with the warning signs of vulnerability, unsure of how to escalate issues when they do notice them, and unclear of their authority to act.

The report comprehensively sets out the problems, practices and in Canada, and other jurisdictions, and sets out several specific recommendations.

B.C. Supreme Court Rules Committee Inviting Comments on Proposed Changes to Probate Rules

The Attorney General’s B.C. Supreme Court Rules Committee is requesting comments on proposed changes to the probate rules. You can read the proposed changes here.

A couple of the proposed changes caught my eye. One proposed changes to broaden the class of persons who may file a notice of dispute to oppose an estate grant. As I previously wrote the current Rule 25-10 (1) is too restrictive. Only those to whom notice of the application for an estate grant must be given are entitled to file a notice of dispute. In the case of an application to probate a will, the applicant must give notice to all of those who are named beneficiaries in the will, and anyone else who would be entitled to share in the estate on an intestacy. However, someone who does not fall within one of those categories, but who is a beneficiary under a previous will, does not appear to have the right to file a notice of dispute. The proposed change would allow anyone with an interest under a prior or later will to file a notice of dispute.

A second proposed change the caught my eye is a proposed change to Rule 25-14 which currently provides that some types of claims could be commenced by a requisition if there has been no application for an estate grant. For example, currently you can apply to pass over and executor by requisition, if no application for an estate grant has been filed.

Requisitions are in my view inappropriate for commencing litigation. There are no rules governing who is entitled to notice of the application, nor times for responding. The proposed change would eliminate the ability to make applications by a requisition. The exceptions under the proposed changes are applications which may appropriately be made without giving anyone notice. For example, under the proposed changes, you would be able to make an application to shorten the 21-day waiting period to file a submission for an estate grant following the date you mail a notice to the beneficiaries and those who would be entitled to a share of the estate on an intestacy.

In most cases, a petition would replace a requisition. 

You may make comments by email to AGSupremeCourtRulesCommittee@gov.bc.ca  until October 16, 2017.

British Columbia's New Societies Act Came into Effect Today

The Societies Act came into effect today, November 28, 2016. The new legislation has made significant changes to the governance of non-profit societies incorporated in British Columbia It replaces the Society Act (the "Old Act"), which is now repealed.

Over the next two years, societies are required to transition to the new Act. This will involve filing a non-profit society's constitution and consolidated bylaws. The constitution will now only include the society's name and purposes. Other provisions that used to be common in constitutions under the Old Act, such as provisions requiring that a society's assets be distributed to a charitable organization if the society is wound up, will be moved to the bylaws.

The Province of British Columbia has published a helpful guide to the transitions available here.

British Columbia Law Institute

I have recently completed my second and final three-year term as a member and director of the British Columbia Law Institute. I was a big fan to begin with, but having seen closer up how the organization works, I am a bigger fan coming out.

The purposes of the BCLI, as both described in its constitution, and in practice, are to:

·         promote the clarification and simplification of the law and its adaptation to modern social needs, 

·         promote improvement of the administration of justice and respect for the rule of law, and

·         promote and carry out scholarly legal research.

The BCLI is in its functions the successor to the British Columbia Law Reform Commission. When I first started practicing law, I had a very broad practice, and often had to learn different areas of law quickly. I discovered in my office various reports by the Law Reform Commission. The reports provided excellent, very readable summaries of the law, and found them a good starting point. Now that I have a much more focused practice, I find myself still looking at reports in my practice area of wills, estates, trusts and related litigation. For example, many of the provisions of the new, well relatively new, Wills, Estates and Succession Act were based on recommendations of the BCLI Report Wills, Estates and Succession: a Modern Framework. When I am trying to grapple with understanding the changes to B.C.’s succession law, I often turn to this Report to find out the underlying reasons for the changes, which in turn helps me better understand the legislation. Courts may also look at the Report as an aid in interpretation.

The membership of the organization is comprised of a broad cross section of our profession, including lawyers in private practice, from big firms and small, law professors, and notaries. The key to its success, though, is the quality of the staff lawyers, who provide a very high level of scholarship, and who write with tremendous clarity.

The BCLI is independent from government. It gets some of its funding from government, but also from private sector and from non-profit organizations such as the British Columbia Law Foundation.

When the BCLI takes on a project, there is usually a project committee set up. Each project committee includes one or more of the BCLI directors and staff, but also lawyers and other professionals with experience in the relevant area of law. The highlight of my involvement with the BCLI was serving on the project committee on the Project on Potential Undue Influence:Recommended Practices for Wills Practitioners, which was chaired by Peter Ramsay Q.C., with Greg Blue Q.C. as the project manager.

I am not going to try to mention all of the people involved with BCLI during my six years as a member. The chairs during that time were Peter Ramsay Q.C., Tino Di Bella, and Professor Joost Blom Q.C. Jim Emmerton was the executive director when I first came on, and, following Jim’s retirement, Kathleen Cunningham is now the executive director.

The BCLI is also responsible for the Canadian Centre forElder Law, which focuses on law reform and proving information of interest to older adults. Krista James is its national director.

Ministry of Justice Seeking Comments on the Presumption of Advancement and Property Division Under the Family Law Act

The British Columbia Ministry of Justice has published a Discussion Paper: The Presumption of Advancement and Property division under the Family Law Act, and is seeking comments until September 30, 2016.

The issues relate to the question of whether the presumption that when a married spouse transfers property to the other spouse the spouse making the transfer intends to make a gift should apply to make property that would otherwise have been excluded from the property that is divided on a marriage breakdown included property. I wrote about the decision in V.J.F. v S.K.W., 2016 BCCA 186 in my post “What Happens to Funds Inherited by a Spouse on the Breakdown of the Marriage.” In the V.J.F. case, the husband had inherited $2 million which he used to purchase real estate in his wife’s name. The trial judge had found that the husband had failed to rebut the presumption of advancement and that the real property was a gift to the wife. The court divided the land equally between the spouses. Had the husband bought the land using the inherited funds in his own name, the land would have been excluded from the division of property because it was an inheritance.

The Ministry of Justice poses the following questions in the Discussion Paper:

1. Is it more consistent with fairness between spouses for the FLA to provide that gifts of excluded property between spouses transfer beneficial ownership or to allow excluded property to always retain its excluded status? Consider the example of RRSP’s or other investments purchased with the excluded property of one spouse and registered in the name of the other spouse? Should the value of the excluded property be returned to the transferor spouse or treated as family property under Part 5 of the FLA? 

2. The BCCA decision in VJF suggests that a spouse who wants to rebut the presumption of advancement can enter into an agreement that sets out that property exchanged between them is not a gift. Is this a practical way for spouses to address the issue? 

3. Should consideration be given to amending the legislation to explicitly abolish the presumption of advancement for the purposes of Part 5 of the FLA entirely? Or, should consideration be given to adopting the approach used in other provinces? 

4. If the presumption is not abolished for purposes of Part 5 of the FLA, should the FLA be clarified to ensure that the presumption also applies to those non-married spouses to whom Part 5 of the FLA applies?

5. The BCCA decision in VJF alludes to the usefulness of the presumption of advancement to ensure fairness between spouses. If the presumption of advancement continues to apply to matters under Part 5 of the FLA, does section 95 of the FLA provide sufficient flexibility to allow a Court to address any alleged unfairness caused by excluded property being converted to family property?

6. The BCCA decision in VJF alludes to the usefulness of the presumption of advancement to ensure fairness between spouses. If the presumption of advancement continues to apply to matters under Part 5 of the FLA, does section 95 of the FLA provide sufficient flexibility to allow a Court to address any alleged unfairness caused by excluded property being converted to family property? 

7. If the presumption of advancement is specifically abolished regarding matters under Part 5 of the FLA, does section 96 of the FLA provide sufficient flexibility to allow a Court to address any alleged unfairness that results from the tracing of excluded property? 

8. Are there other “rights under equity or any other law” that may interact with Part 5 of the FLA which require examination?

You may respond by mail or email as follows:

By regular mail: Civil Policy and Legislation Office
Justice Services Branch
Ministry of Justice
PO Box 9222, Stn Prov Govt
Victoria, BC V8W 9J1

By email: CPLO@gov.bc.ca

Canadian Bar Association Resolutions relating to Medical Assistance in Dying

Last week, I attended the Canadian Bar Association National Counsel Meeting where the Canadian Bar Association passed three resolutions related to the Supreme Court of Canada deciison in Carter v. Canada (Attorney General), 2015 SCC 5, and the new amendments to the Criminal Code to permit medial assistance in dying in certain circumstances.

I was particularly interested in  the resolution, which I seconded,  relating to advance requests for medical assistance in dying:

Advance Requests for Medical Assistance in Dying

WHEREAS the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying recommended that the federal government amend the Criminal Code to permit a request for medical assistance in dying (MAID) at any time following the diagnosis of a grievous and irremediable condition when suffering becomes intolerable;

WHEREAS the Special Joint Committee on Physician-Assisted Dying recommended that advance requests for MAID be allowed at any time after one is diagnosed with a condition that is reasonably likely to cause loss of capacity or after diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable;

BE IT RESOLVED THAT the Canadian Bar Association:

1. urge the federal government to amend the Criminal Code:

a) to permit advance requests for medical assistance in dying consistent with the criteria recommended by the Provincial-Territorial Advisory Group and Special Joint Committee; and

b) to exempt from liability all persons assisting in the discussion of end of life choices, including MAID, in the context of an advance request.

2. urge each province and territory to review and, where necessary, enact legislation to permit MAID pursuant to a valid advance request, and to consider and address:

a) consistency across provinces and territories;

b) measures that adequately safeguard individuals where capacity is an issue, but do not impose undue barriers for eligible individuals who wish to make an advance request for MAID;

c) clear requirements to determine the validity of an advance request for MAID;

d) a prohibition against providing MAID based on an advance request if the grantor is capable;

e) retaining the right of every individual who has made an advance request to refuse the administration of MAID regardless of capacity; and

f) who is legally bound to comply with an advance request for MAID.

The other two were resolution on Medical Assistance in Dying for Competent Minors, and Medical Assistance in Dying and Psychiatric Conditions. 

Amendments to Strata Property Act Facilitating Termination of Strata Corporations in Effect

It is now easier to terminate a strata corporation in British Columbia. The Strata Property Act used to require the consent of all of the owners to terminate a strata corporation (although the court could allow termination with less than unanimous consent in some circumstances).

Amendments to the Strata Property Act allowing a strata corporation to be terminate by a vote of 80 percent of eligible voters came into effect on July 28, 2016. The threshold remains high, but easier to acheive than unanimity. The amendments are based on the recommendations of the British Columbia Law Institute Strata Property Law Project Committee in its Report on Terminating a Strata. 

Why terminate a strata corporation? Older buildings may deteriorate to the point where it is uneconomical to retain them in a good state of repair, and it may make more sense to terminate the strata corporation and sell the land to a developer for redevelopment.  

The amendments are summarized by the British Columbia Law Institute as follows: 

The Strata Property Act amendments are found in sections 37 to 55 of the new act. These amendments achieve two important reforms to the law: (1) they lower the voting threshold required to terminate a strata from unanimity to 80 percent of the strata’s eligible voters and (2) they require a strata to apply to court for an order confirming a resolution to terminate—a requirement that is intended to afford some protection to dissenting owners and registered chargeholders.

The amendments begin by defining this new 80-percent voting threshold, making it clear that it requires 80 percent of all eligible voters, not simply 80 percent of the eligible voters who turn up at a meeting. This new voting threshold applies to a new category of resolution, which the amendments call a “winding-up resolution,” and define as a resolution to cancel a strata plan and become tenants in common (i.e,. to terminate the strata) or to appoint a liquidator for the strata.

A special notice period of at least four weeks’ written notice will apply when a strata wants to consider a winding-up resolution at an annual general meeting or a special general meeting.

If a winding-up resolution is passed by an 80-percent vote, then in most cases the strata will be required to apply to the Supreme Court of British Columbia for an order confirming the decision to terminate. An exception applies for very small stratas. If a strata has fewer than five strata lots, then it will have the option to proceed without the necessity of applying to court. Notice that, for stratas of this size, unanimity will effectively be required to terminate, because one eligible voter will have the power to prevent the strata from reaching the 80-percent voting threshold.

Strata-lot owners and registered chargeholders must receive notice of the application. If any of them opposes termination, they will have the opportunity to make their case to the court.

In considering whether to make the order, the court is directed to consider the following:

• the best interests of the owners; and

• the probability and extent, if the winding-up resolution is confirmed or not confirmed, of

• significant unfairness to one or more

• owners, or

• holders of registered charges against land shown on the strata plan or land held in the name of or on behalf of the strata corporation, but not shown on the strata plan, and

• significant confusion and uncertainty in the affairs of the strata corporation or of the owners.

Community Care and Assisted Living Amendment Act

Last week, the British Columbia Minister of Health introduced the Community Care and Assisted Living Amendment Act, 2016. The proposed amendments are consistent with the British Columbia Law Institute and Canadian Centre for Elder Law's Report on Assisted Living in British Columbia, published in 2013.

As set out in the British Columbia Law Institute's press release on March 8, 2016,

Among the recommendations in the Report on Assisted Living in British Columbia published by BCLI and CCEL in 2013 were to repeal the restriction on assisted living residences limiting them to providing no more than two prescribed services. Bill 16 would remove this restriction. This will allow for a greater range of living and care options to residents and allow them to remain longer in the same apartment-style setting and retain much independence as possible.

Other recommendations included clarifying the mental status requirement for eligibility to enter and remain in assisted living, and amending the meaning of “spouse” in the Community Care and Assisted Living Act to include a person who has been in a marriage-like relationship with a resident for at least two years as well as a legally married spouse. Bill 16 would also make these legislative changes in terms that coincide closely with the recommendations in the BCLI / CCEL report.

British Columbia Court of Appeal Consultation Paper for Civil Rule Reform

The British Columbia Court of Appeal published a Consultation Paper for Civil Rule Reform in November 2015. As set  out in the Report, "[t]he purpose of the British Columbia Court of Appeal’s rule reform initiative is to simplify the rules, make appeal proceedings more affordable and address anomalies in the existing Court of Appeal Act and Rules."

 

Anyone wishing to make submissions may do so by March 18. 2016 by email to BCCACivilRules@courts.gov.bc.ca.

British Columbia Law Institute Project on Litigation Financing

The British Columbia Law Institute is starting a new project on litigation financing. Here is the press release:

 

Vancouver, 11 September 2015 – The number of self-represented litigants in British Columbia’s courts has been steadily increasing. In her 2013 report, University of Windsor Faculty of Law professor Dr. Julie Macfarlane wrote that the inability to afford legal counsel is the most consistently-cited reason for self-representation and a lack of access to justice.

In response, the British Columbia Law Institute is starting a new project on litigation financing to explore the public, private, and third-party funding opportunities used in British Columbia, Canada, and in other commonwealth jurisdictions. The project will explore the potential opportunities for structural, systemic, or legal changes that could improve the financing options for litigants.

“There is a need to identify structural and legal changes necessary to facilitate the greater participation of low-income individuals in court processes,” said Kathleen Cunningham, Executive Director of the BCLI. “By exploring a selection of options for litigation financing and evaluating their utility and potential for implementation, this research will provide an important first step towards improving access to justice in British Columbia.”

The final Study Paper is expected to be available at

www.bcli.org in January 2017.

This project has been made possible thanks to generous funding from the Law Foundation of British Columbia.

The British Columbia Law Institute strives to be a leader in law reform by carrying out the best in scholarly law-reform research and writing and the best in outreach relating to law reform.

Contact: Alexandre Blondin

Research Lawyer

(604) 822 0981

ablondin@bcli.org

British Columbia Law Institute Report on Terminating a Strata

The British Columbia Law Institute  has just published its Report on Terminating a Strata recommending reform of the Strata Property Act provisions allowing a strata to wind up its strata corporation and cancel the strata plan.

Under current legislation, there are very stringent requirements that must be met before a strata may be terminated. The Strata Property Act requires a unanimous vote to terminate a strata, which effectively requires that all owners consent. On an application authorized by three-quarters of the votes, the court may allow a termination in very limited circumstances despite dissenting votes. Pursuant to section 52 of the Strata Property Act, if a strata corporation is comprised of 10 or more strata lots, and the vote in respect of one strata lot, or if more than one strata lot, “the court may, if satisfied that the passage of the resolution is in the best interests of the strata corporation and would not unfairly prejudice the dissenting voter or voters, make an order providing that the vote proceed as if the dissenting voter or voters had no vote.”

For most termination applications, the consent of the mortgagees and other registered charge holders is also required.

Why would the owners want to terminate their strata? One of the reasons is that as buildings age, they may become obsolete. The cost of repairs and maintenance of apartments and other buildings may become disproportionately high in comparison to what the owners might be able to receive if the strata is terminated and the property sold for redevelopment.

If the threshold for terminating a strata is too high, there is a risk that a small minority may unreasonably withhold consent to termination in circumstances where it is clearly in the best interest of the owners as a whole to terminate.

On the other hand, too low a threshold may be unfair to those who disagree with the majority, particularly for the owners of residential strata lots who occupy their units, for whom termination will require finding a new residence.

In the Report, the Strata Property Law (Phase Two) Project Committee, chaired by Patrick Williams of the law firm Clark Wilson LLP, sought to balance the collective interests of a strata, with the need to provide safeguards for minority dissenting owners and charge holders.

The Report recommends that the threshold for terminating a strata be lowered to 80% of the eligible votes. The consents of charge-holders would not be required. On the other hand, unless the strata consists of fewer than five strata lots (in which case the 80% threshold would effectively require unanimity), the strata corporation would also require court approval to terminate the strata. The requirement for court approval would give any dissenting owners, and holders of charges registered against the land the opportunity to oppose the termination. The court would then have to determine whether the termination is in the best interests of the strata corporation.

The Report contains a detailed analysis of the relevant provisions of the Strata Property Act and earlier British Columbia legislation, a comparison of the law in other jurisdictions, a discussion of the policy implications, and 21 specific recommendations. 

Uniform Trustee Act Provisions for Remuneration

The British Columbia Government appears to be considering passing new legislation modeled on the Uniform Conference of Canada, Uniform Trustee Act. As I wrote before, the Ministry of Justice was requesting comments on the Uniform Trustee Act.

Among the changes that may be brought by new legislations are changes relating to remuneration for personal representatives of estate, and trustees.

Currently, under section 88 of the Trustee Act, there is a statutory ceiling for the fees that personal representatives (executors of wills and administrators of estates) and trustees may charge of 5 per cent of the aggregate value of an estate or trust, including income and capital and a care and management fee of 0.4% of the average market value of the assets. This is a ceiling and in many cases the courts awards lower percentage based on the Judge’s or Registrar’s assessment of what amount is reasonable in all of the circumstances. It should also be noted that you can allow your personal representative or trustee to charge a higher percentage by sayings so in your will or trust or in a separate contract.

In contrast, the Uniform Trustee Act would not set a statutory ceiling on remuneration that a court may award. Instead, the Uniform Trustee Act sets out the factors that the Judge or Registrar may consider. The Uniform Trustee Act would preserve the right of a will-maker or settlor of a trust to determine the amount of compensation by will, by the trust agreement, or by contract.

The Uniform Trustee Act would permit a personal representative or trustee who is a profession to charge fees for professional services in addition to remuneration for acting as the personal representative or trustee. This would change the law in British Columbia. Currently unless expressly permitted in the will or trust, a lawyer or other professional acting as a personal representative or trustee may not charge professional fees in addition to remuneration for acting as a personal represent or trustee unless the will or trust expressly authorizes professional fees.

Section 64 of the Uniform Trustee Act reads as follows:

64 (1) A person is entitled to fair and reasonable compensation to be paid out of the trust property for services rendered as trustee of the trust.

(2) As part of the compensation to which a trustee is entitled under subsection (1), a trustee who

(a) has professional skills, and
(b) has rendered services to the trust, apart from those generally associated
with the office of trustee, that required the exercise of those professional
skills

is entitled to charge fees at reasonable rates for those services that are reasonably necessary for the purpose of carrying out the trust.

(3) The trustees of a trust are not presumed to be entitled to equal compensation under subsection (1).

(4) On application by a trustee during the administration of the trust or on the passing of accounts, the court may determine the amount of compensation to which the trustee is entitled under subsection (1).

(5) In determining a trustee’s compensation, the court may consider the following:

(a) the gross value of the trust property at the time compensation is claimed;
(b) any change in the gross value of the trust property since compensation was last claimed or the trust was created and the portion of that change attributable to decisions of the trustee;
(c) the amount of revenue received and expenditures incurred in administering the trust;
(d) the complexity of the work involved in administering the trust, including whether or not any difficult or unusual questions were raised;
(e) any unusual difficulties or situations encountered in administering the trust;
(f) whether or not the trustee had to instruct on litigation relating to the trust;
(g) whether or not the trustee was required to manage a business, be the director of a corporation or perform other additional roles in administering the trust;
(h) the amount of skill, labour, responsibility, technological support and specialized knowledge required in administering the trust;
(i) the number and complexity of tasks relating to the administration of the trust that were delegated to others;
(j) the time expended in administering the trust;
(k) the number of trustees.

 (6) A trustee may make an application under subsection (4) even if the trust instrument provides for the determination of the amount of compensation.

(7) Subsection (4) does not authorize the variation of a contract, with respect to compensation between a settlor and a trustee, that is not part of the trust instrument, whether or not the contract is incorporated by reference in the trust instrument.

Section 65 would allow a personal representative or trustee to receive interim remuneration before the amount is approved by the beneficiaries or the court provided that at least one beneficiary is a capacitated adult. The personal representative or trustee must give notice to “qualified beneficiaries,” which means beneficiaries with a vested interest in the estate and trust, and any contingent beneficiaries who have given notice that they wish to be included as qualified beneficiaries. If the Court ultimately approves a lower amount of remuneration, then the personal representative or trustee must repay the difference (section 68).

Should Professional Trustees be Held to a Higher Standard?

In view of the complexity and time that may be required to administer an estate or act as trustee of a trust, it sometimes makes good sense to appoint a professional trustee to act as executor of a will or as a trustee in a trust (for simplicity I will refer to executors, administrators of estates and trustees of trusts as “trustees” although there are some technical differences in their roles). Trust companies are in the business of acting as trustees, have systems in place for doing so, employ experienced personnel, and hold themselves out as experts. They of course charge for their work. Some lawyers and other professionals also act as trustees as part of their business.

British Columbia law currently does not make a distinction between the standard of care owed by a family member acting as a trustee, perhaps acting gratuitously, and that of a trust company, perhaps charging over a hundred thousand dollars for its services, to the beneficiaries of the trust if it is alleged that the trustee has been negligent in the trustee’s handling of the trust assets resulting in a loss.

As I wrote in  previous post, the Supreme Court of Canada said in Fales v. CanadaPermanent Trust Co., [1977] 2 S.C.R. 302, that “[t]raditionally, the standard of care and diligence required of a trustee in administering a trust is that of a man of ordinary prudence in managing his own affairs (Learoyd v. Whiteley[2], at p. 733;Underhill's Law of Trusts and Trustees, 12th ed., art. 49; Restatement of the Law on Trusts, 2nd ed., para. 174) and traditionally the standard has applied equally to professional [sic] and non-profes­sional trustees.”

It should be noted that section 96 of the Trustee Act does allow the court to relieve a trustee from personal liability for a breach of trust if the trustee “has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which the trustee committed the breach,” and as happened in Fales, the court may use this provision to relieve a family member or other trustee who is not a professional trustee from liability while holding the professional trustee responsible to pay for any breach of the duty of care. In Fales, the Supreme Court of Canada relieved the will-maker’s widow from liability, while holding the professional co-trustee liable for loss occurring as a result of the trustees failing to sell the shares of a company within a reasonable time.

But the effect of section 96, while allowing the court to relieve a non-professional cotrustee of liability, does not raise the standard of the professional trustee to any higher level than the "man of ordinary prudence."

The will-maker, or settlor of a trust, appointing both a family member and a professional trustee to act as co-trustees can also relax the standard of care for a non-professional trustee in a will or trust, while holding the professional trustee to the standard of “a man of ordinary prudence,” but I suspect this is rarely done.

One of the recommendations the Uniform Law Conference of Canada, in its Uniform Trustee Act which may form the basis of new legislation in British Columbia to replace the current Trustee Act, is to hold professional trustees to a higher standard of care.

Section 26 of the Uniform Trustee Act says:

Duty of care

26 (1) In the administration of a trust, a trustee must act in good faith and in accordance with the following:

 (a) the terms of the trust;
 (b) the best interests of the objects of the trust;
 (c) this Act.

(2) Subject to section 31, in the performance of a duty or the exercise of a power, whether the duty or power arises by operation of law or the trust instrument, a trustee must exercise the care, diligence and skill that a person of ordinary prudence would exercise in dealing with the property of another person.

(3) Despite subsection (2) but subject to section 31, if, because of a trustee’s profession, occupation or business, the trustee possesses or ought to possess a particular degree of care, diligence and skill that is relevant to the administration of the trust and is greater than that which a person of ordinary prudence would exercise in dealing with the property of another person, the trustee must exercise that greater degree of care, diligence and skill in the administration of the trust.

The commentary to section 26(3) is as follows:

Subsection (3) constitutes a change from the present law, which applies the same standard of care to all trustees, regardless of the degree of skill or knowledge they have or profess to have. Professional trustees managing trusts for a fee are common today. Professional trustees hold themselves out to the public as having particular skills to carry out estate and trust administration for remuneration. Subsection (3) requires these trustees, subject to the provision of this Act respecting the standard of care regarding the investment of trust property, to be held to a standard of care corresponding to the degree of knowledge or skills they bring, or ought to bring, to the task of trusteeship. The same criterion applies to trustees of commercial and business trusts. The duty to exercise special skills and knowledge under subsection (3) applies to trustees who have or should have them, regardless of whether they hold themselves out to the public as having them.

Similarly, with respect to the standard of care of a trustee in making investments, section 31 of the Uniform Trustee Act provides:

Standard of care

31 (1) In investing trust property, a trustee must exercise the care, diligence and skill that a prudent investor would exercise in making investments.

(2) Despite subsection (1), if, because of a trustee’s profession, occupation or business, the trustee possesses or ought to possess a particular degree of care, diligence and skill that is relevant to the investment of trust property and is greater than that which a prudent investor would exercise in making investments, the trustee must exercise that greater degree of care, diligence and skill in investing trust property.

Uniform Trustee Act Provisions for Removal of Trustee

As I wrote before, the British Columbia Ministry of Justice is seeking comments on the Uniform Law Conference of Canada, Uniform TrusteeAct, which may form the basis of new legislation to replace the current Trustee Act.

One of the changes to the legislation if adopted would be more elaborate provisions on removing trustees.

Currently, there are two provisions in the Trustee Act that apply to the removal of trustees, section 30, which is limited to court appointed trustees and receivers, and section 31, which says:

Power of court to appoint new trustees
 31  If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.

There are common law principles that the courts have developed in deciding whether to remove a trustee, but the legislation itself does not provide any criteria.

In contrast the Uniform Trustee Act sets out certain conditions that disqualify a person to act as trustee or that make the person unfit. For example, an undischarged bankrupt is not qualified. An example of a person who may be removed as unfit is a trustee who consistently fails to respond to communications from a beneficiary.

As with the current Trustee Act, a person with an interest in the trust could apply to court to remove a trustee. But the Uniform Trustee Act also has a provision that would allow a majority of trustees to remove a trustee if there are three or more trustees. In that case, the person removed as a trustee may apply to court for reinstatement.

The relevant provisions are sections 14 through 17, and 78:

Person not qualified to hold office of trustee

 14 A person ceases to be qualified to hold the office of trustee if any of the following
apply to the person:

 (a) the person is an incapacitated person;

 (b) the person has been convicted of an offence involving dishonest  conduct  under

 (i) an enactment, or
 (ii) a law of Canada or another province of Canada;

 (c) the person is an undischarged bankrupt;

 (d) the person is a corporation that is in liquidation.

 Removal of unfit trustee

 15 (1) A person is not fit to hold the office of trustee if

 (a) the person

 (i) fails to demonstrate the care, diligence and skill that a person of
ordinary prudence would exercise in dealing with the property of another person,
 (ii) consistently fails to respond to communications from a beneficiary or another trustee, or
 (iii) is otherwise unwilling or unable, or unreasonably refuses, to act
cooperatively with other trustees, and

 (b) the person’s conduct is detrimental to the efficient or proper
administration of the trust.

 (2) Subsection (3) applies if there are 3 or more trustees.

 (3) If the fitness of a trustee to hold office is questioned, a majority of the other trustees may remove the trustee from office by a written resolution setting out the reasons for the removal if the majority determines that the trustee is not fit to hold office.

 (4) A resolution under subsection (3) is effective,

 (a) if the trustee that is the subject of the resolution does not request a meeting
under subsection (5), 15 days after a copy of the resolution is delivered to that trustee, or

 (b) if the trustee that is the subject of the resolution requests a meeting under
subsection (5), at the conclusion of the meeting, unless the resolution is rescinded.

 (5) Within the 15-day period after a copy of the resolution is delivered to the trustee that is the subject of the resolution, that trustee, by delivering a written request to another trustee, may request a meeting with the other trustees to respond to the reasons set out in the resolution.

(6) A meeting requested under subsection (5) must take place as soon as practicable.

(7) After the trustee responds to the reasons set out in the resolution, the other trustees may rescind the resolution.
 Power of court to remove trustee

16 (1) The court may remove a person from the office of trustee if

 (a) the person is not fit under section 15 to hold the office of trustee and there
are fewer than 3 trustees, or

 (b) the court is of the opinion that

 (i) the removal of the person under section 15 or under a power
conferred by a trust instrument would be inexpedient, difficult or
impracticable, and
 (ii) the removal of the person is in the best interests of the objects of the
trust.

 (2) If the court considers a reduction in the number of trustees to be in the best
interests of the objects of a trust, the court may

 (a) reduce the number of trustees, and

 (b) to give effect to the decision under paragraph (a), remove a person as
trustee.

 (3) The court may remove a trustee appointed by the court under section 9.

 (4) Despite any other provision of this Act or a power conferred by a trust instrument, a trustee who is designated as a judicial trustee by the court under section 9 (2) (b) may be removed only under subsection (3) of this section.
 Power of court to reinstate trustee

17 (1) A person removed as trustee, except a person removed under section 16 or 78,
may make an application to the court for an order under subsection (3) of this section,

 (a) in the case of a person removed as trustee under section 15, within 60 days
after the date the resolution becomes effective, or

 (b) in any other case, within 60 days after the earlier of

 (i) the date of the appointment of a substitute trustee under section 6  (1), and
 (ii) the date that the removal as trustee comes to the attention of the
person removed.

 (2) On an application under subsection (1), the court may make an order under
subsection (3) if

 (a) the court is satisfied that the person was removed as trustee based on a
mistake of fact or law, and
 (b) the court considers making the order to be in the best interests of the objects of the trust.

 (3) Subject to subsection (2), the court may

 (a) reinstate the person as trustee on a specified date,
 (b) declare that the person did not cease to hold the office of trustee during the
period following the purported removal, or
 (c) dismiss the application.

 (4) If the court makes an order under subsection (3), the court may also give directions or make a declaration as to the person’s status as trustee or the liability of

 (a) a substitute trustee appointed under section 6 (1),

 (b) a person who is the subject of the order under subsection (2), or

 (c) any other person who was a trustee after the person making the application
was removed as trustee.

Non-performance by trustee

78 If, on application by a beneficiary, the court is satisfied that a trustee has refused or
failed to

 (a) perform a duty imposed on the trustee, or

 (b) consider in good faith the exercise of a power conferred on the trustee, the court may

 (c) order the trustee to

 (i) perform the duty, or
 (ii) consider in good faith the exercise of the power and satisfy the court that the trustee has given due consideration to the exercise of   the power, or

 (d) remove the trustee.

B.C. Ministry of Justice is Seeking Comments on Proposed New Trustee Act

The Ministry of Justice is asking for comments on a proposed new Trustee Act based on the recommendations of the Uniform Law Conference of Canada, in its Final Report of its Working Group, Uniform Trustee Act. The Uniform Law Conference of Canada Working Group drew heavily from the recommendations of the British Columbia Law Institute's 2004 report, A Modern Trustee Act for British Columbia.

I plan to write future posts on some of the specific proposals. For now I simply provide my my opinion that reform of our Trustee Act is long overdue.

The consultation period is open until July 31, 2014. If you are interested in providing comments to the Ministry of Justice, you may do so as follows:

By Email: CPLO_TrusteeAct@gov.bc.ca

By Regular Mail:

Civil Policy and Legislation Office

Justice Services Branch
Ministry of Justice
PO Box 9222, Stn Prov Govt
Victoria, B.C.  V8W 9J1 

British Columbia Law Insitute Consultation Report on Terminating a Strata

The British Columbia Law Institute is seeking comments on its Consultation Report on Terminating a Strata published as part of an ongoing Phase 2 of the Strata Property Law Project. As set out in the press release issued on May 15, 2014:

The British Columbia Law Institute is asking the public for its opinion on proposals to reform how the Strata Property Act deals with the termination of a strata. In its just-published Consultation Paper on Terminating a Strata, BCLI examines the development of what the Strata Property Act calls cancellation of a strata plan and winding up of a strata corporation and makes 21 tentative recommendations designed to improve this province’s legal framework for terminating a strata.

“Termination is likely going to become an important issue for stratas, as strata buildings age and as the strata sector in British Columbia continues to evolve,” noted Strata Property Law Project Committee Chair Patrick Williams. “This consultation will give people an opportunity to have their say on how to strike the best balance in the rules applying to termination.”

The consultation paper begins by tackling the key issue of the voting threshold to authorize termination, proposing a move from the current rule of unanimous consent to a rule setting the threshold at 80 percent of all voters. From there, the consultation paper moves on to consider the notice and procedural reforms needed to integrate this new form of resolution into the Strata Property Act’s existing collective decision-making system, the measures that should be put in place to protect the interests of dissenting owners and registered chargeholders, and the appropriate transitional rule for the committee’s reforms.

You can read the Consultation Report here .

The British Columbia Law Institute also has links from this page to a short summary, and response booklet.

You may also complete either a short survey (3 questions) or a longer survey (21 questions) on line.

The British Columbia Law Institute is requesting responses by September 30, 2014, before it completes a final report.