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annual report of the LAW REFORM COMMISSION OF BRITISH COLUMBIA 1979 British Columbia. Legislative Assembly 1980

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 ISSN 0381-2510
annual report
of the
LRC 45
 The Law Reform Commission of British Columbia was established by the
Law Reform Commission Act in 1969 and began functioning in 1970.
The Commissioners are:
Peter Fraser
Kenneth C. Mackenzie
Bryan Williams
Anthony F. Sheppard
Arthur L. Close
Fred Hansford is Legal Research Officer to the Commission.
Sharon St. Michael is Secretary to the Commission.
The Commission offices are located on the 10th Floor, 1055 West Hastings
Street, Vancouver, B.C.  V6E 2E9.
I.   Introduction  5
II. Membership of the Commission  5
III. The Programme  6
A. Carrying Out the Programme  6
1. Research and Writing  6
2. The Consultation Process  6
The Projects  6
1. Debtor-Creditor Relationship  6
(a) Enforcement of Judgments^
(b) Reviewable Transactions	
( c) Law of Guarantees	
(d) Crown Liens	
(e) Joint Liability	
2. The Law of Damages	
(a) Personal Injury Claims-
(b) Families' Compensation Act	
3. Statute Law Revision: Applicability of English Law_
4. The Parol Evidence Rule	
5. Arbitration	
6. Civil Procedure	
(a) Civil Litigation in the Public Interest     9
(b) Class Actions  10
(c) Prejudgment Interest Act  10
7. Estates Projects  10
(a) Wills and Succession  10
(b) Probate Procedure and Administration  10
8. Sale of Goods Legislation  10
9. Extrinsic Aids to Statutory Interpretation  11
10. Accounting on Foreclosure  11
11. Limitation of Actions  11
12. Defamation and Letters to the Editor  12
13. Subjects of Interest  12
IV. The Availability of Commission Publications   12
V. Progress of the Programme  13
VI.  Relationship With Other Agencies  13
VII. Acknowledgments  13
Appendix A. Commission Reports  16
Appendix B. Matters Under Consideration  17
Appendix C.  Letter Concerning Limitation of Actions  17
Appendix D. Letter Concerning Defamation  19
  To the Honourable L. Allan Williams, Q.C.
Attorney-General for British Columbia
The Law Reform Commission of British Columbia has the honour to present
its Annual Report, outlining the progress made by the Commission during the
calendar year 1979.
The Law Reform Commission of British Columbia was constituted by the
Law Reform Commission Act which became law on July 1, 1969. The Commission began operating early in 1970 and we are looking forward to our tenth
anniversary. During the past year, formal Reports were submitted to you on a
variety of matters. They include Reports on Creditors' Relief Legislation, Guarantees of Consumer Debts, and the Parol Evidence Rule. The Commission has also
issued Working Papers on the Law of Arbitration and on Civil Litigation in the
Public Interest. The contents of these documents are described more particularly
During 1979 the composition of the Commission underwent a significant
change with the appointment of three new Commissioners, and we look forward
to the early appointment of a Chairman. The new appointments followed a period
of uncertainty during which progress on our programme could not proceed at an
optimal pace. In the circumstances, we feel that we have had a productive year
and are particularly gratified in having completed certain long term studies and in
having brought others much closer to conclusion. In addition, we have started
work on a number of new projects.
As presently constituted the Commission consists of five members: Messrs.
Peter Fraser, Kenneth C. Mackenzie, Bryan Williams, Professor Anthony F.
Sheppard and Arthur L. Close. The latter three members were appointed to the
Commission in October 1979. Details of the appointments of Messrs. Fraser and
Mackenzie may be found in previous Annual Reports. Mr. Close, former Counsel
to the Commission, serves full time and all other members serve part-time.
As we set out in our 1978 Annual Report, our last full-time Chairman,
Douglas Lambert, was appointed to the Court of Appeal in July 1978 and Mr.
Peter Fraser was appointed Acting Chairman while a successor was sought. He
served in that capacity on a part-time basis. Mr. Fraser's designation as Acting
Chairman was continued by a series of Orders-in-Council until he resigned as
Chairman in October 1979. At present the Commission has no Chairman, acting
or otherwise.
The change in composition of the Commission reflects the departure of two
members who have made a significant contribution to its work. Professor Leon
Getz was the first Counsel to the Commission and during the first year of its
existence worked tirelessly to establish it as a "going concern." After a return to
law teaching, he returned to the Commission in 1974 as our first full-time Chairman. His able leadership and his profound scholarship contributed immeasurably
to our work. Professor Getz resigned as full-time Chairman in 1977 but he
continued to serve as a part-time member until 1979.
Paul D. K. Fraser became a member of the Commission in 1974, and has
served with distinction and dedication. His contribution to our work has been a
notable one and numerous Reports reflect his humane and common sense approach
to law reform.   Both Messrs. Getz and Fraser will be greatly missed.
A. Carrying Out the Programme
1. Research and Writing
The kind of research that is required to carry out the programme requires the
allocation of substantial amounts of time by qualified persons. This can be
achieved by having the bulk of the research work done by personnel who are
employed as full-time staff. Alternatively, the services of persons with special
expertise can be retained on a part-time basis or occasional basis. Although in the
early years of the Commission's operation a heavy reliance was placed on outside
consultants, our experience has led to a preference for the former approach.
Consequently, almost all the research and writing is now carried out by full-time
members of the Commission staff.
2. The Consultation Process
The Commission is making a general practice of inviting comment and
criticism on its research and analysis before submitting a formal Report to you on
any particular subject. This process of consultation greatly assists the Commission
in the making of proposals for the reform of the law that are both relevant and
The chief means by which the Commission carries out this process is through
the circulation of Working Papers to those persons, groups or organizations who
would find the subject under study of interest. The Working Paper sets out the
views of the Commission, and the background on which these views are based, and
invites comment.
Occasionally, when the topic under consideration makes wide circulation of a
Working Paper inappropriate, copies of a draft Report may be given limited
circulation for comment.
Whatever consultation mechanism is adopted, the tentative conclusions are
thoroughly re-examined in the light of the comment and criticism received and
final recommendations developed accordingly.
B. The Projects
The description below is limited to those projects upon which reports have
been made in the past year or upon which work is in progress. Details of other
Reports, and projects which have been discontinued with the reason for the
discontinuance, may be found in earlier Annual Reports. Included as Appendix A
is a table setting out all Reports which the Commission has made to date, and
references to legislation in which the recommendations have been implemented in
whole or in part. In Appendix B there is another table setting out those matters
which are now under consideration.
1.  Debtor-Creditor Relationships
(a) Enforcement of Judgments
In 1979 the Commission's work on this project was concentrated in two
areas: execution against shares and creditors' relief legislation. A final Report was
submitted in January with respect to the latter.
The principal recommendation in the Report on Creditors' Relief Legislation
is that the Creditors' Relief Act, R.S.B.C. 1960, c. 85 be repealed. The Report
points out that provincial legislation designed to promote equality among execution
creditors arose only because of an absence, at the turn of the century, of federal
insolvency legislation that would achieve the same result.   That hiatus has been
cured for over 60 years and the Commission recommends, for reasons set out in
the Report, that it is appropriate for the Province to withdraw and let the issue of
"equal distribution" be solely the concern of federal insolvency laws.
The Report, however, recognizes one useful function of the Act recommended
for repeal in the "Creditors Relief Book" which provides a public register of
information concerning execution proceedings taken by judgment creditors. It is
recommended that this function be preserved in modified form in new legislation.
The study on execution against shares raises two main issues. The first is to
develop appropriate machinery for the disposition of shares in so-called "private
companies"—corporations having shares that are closely held and subject to
transfer restrictions. For many years it was thought that such shares were not
exigible but recent British Columbia jurisprudence suggests that they are. The
difficulty is to balance the competing interests of the execution creditor, the judgment debtor, and other shareholders. The Execution Act provides no guidance on
how this is to be done.
The second issue concerns the actual procedure to be employed in the seizure
of shares. The Execution Act reflects a 19th century view of company law under
which a share in a corporation is an intangible chose in action. The machinery
for seizure provided by the Act involves the service of process on the transfer office
of a company in order to effect a seizure of shares in the company. The trend of
modern legislation in relation to the transfer of shares, and the practice of the
marketplace, however, has been to emphasize the role of the share certificate, so
that it is treated as something akin to a negotiable instrument. This study will
consider how far the "notional seizure" provided by the Execution Act should be
replaced by a requirement for the physical seizure of share certificates.
(b) Reviewable Transactions
This subject was added to the Programme in 1977 as a result of a preliminary
examination of the Bulk Sales Act. It was concluded that it would be preferable
to defer proceeding further on a separate project on bulk sales until we also
examined the operation of other statutes such as the Fraudulent Conveyances Act
and the Fraudulent Preferences Act which provide analogous relief. Accordingly
the study was retitled as "Reviewable Transactions."
Late in 1979 we were able to give this project some attention. In particular,
more detailed terms of reference have been prepared and preliminary research
undertaken. Work will continue in 1980.
(c) Law of Guarantees
The law of guarantees was the subject of intense research by the Commission
in 1977 and early 1978. This research revealed that the law of guarantees, and
consumer guarantees in particular, is surrounded by a great deal of uncertainty and
doubt, is in some respects inequitable, and is ripe for re-examination. A Working
Paper setting out a number of proposals for change with respect to guarantees of
consumer debts was circulated in 1978 and a final Report was submitted in 1979.
The Report sets out over 50 recommendations covering a wide variety of
issues including the formalities that should be involved in the creation of a consumer guarantee, the disclosure of relevant information to the guarantor by the
credit grantor, the rights of the guarantor after default and certain technical rules
relating to liability and discharge. The implementation of these recommendations
would significantly improve the position of guarantors of consumer debts.
(d) Crown Liens
A large number of provincial statutes create liens over real and personal
property to secure money that is payable to the government or its agencies. Such
liens tend to be legislated on an ad hoc basis and their scope and priority are often
uncertain. There is no evidence in the statutes of any uniform policy or of a
consistent set of principles with respect to such liens.
In the project on Crown liens we hope to rationalize this area of the law and
achieve an appropriate balance between the needs and expectations of government,
its debtors, and third parties. Preliminary research was undertaken in 1979 and
work on this project will continue in 1980.
(e) Joint Liability
There are a number of aspects to the project on joint liability. The first is an
examination of the distinction between joint liability and joint and several liability,
which can be crucial. For example, a judgment obtained against a person jointly
liable will bar any action against the others with whom he is liable. If the liability
is joint and several, judgment obtained against one will not bar any action against
the other.
We also propose to examine the law concerning joint obligations and its
relationship with the law of contributory negligence. In particular, the provisions
of the Contributory Negligence Act relating to the apportionment of liability among
persons jointly liable may need to be examined. We expect to profit from the work
of the Uniform Law Conference in this area.
A person who discharges an obligation on which he is jointly liable with
another may call upon that person to contribute toward the cost of discharging that
obligation. This aspect of the law will also be examined. A preliminary research
paper on this topic has been prepared and we hope to give it active consideration
in 1980.
2. The Law of Damages
(a) Personal Injury Claims
The law concerning the award of damages for personal injury claims has
recently been a matter of controversy. Such damages are awarded as a lump sum
on a once-and-for-all basis. In assessing the amount to be awarded the court or
jury is placed in the position of having to predict the future course of events on the
basis of the best evidence available at the time. In the result an award that seemed
realistic at the time it was made may prove to be inadequate or overly generous.
There have been a number of recent developments in this area. In England,
the Royal Commission on Civil Liability and Compensation for Personal Injury,
under the chairmanship of Lord Pearson, reported its recommendations in March
1978. In Canada, Mr. Justice Dickson of the Supreme Court of Canada suggested
in a recent case that personal injury awards might be made subject to a periodic
(b) Families' Compensation Act
A related study was also added to the Programme in 1978. It concerns the
operation of the Families' Compensation Act. This may ultimately be merged with
the larger study described above, but, for the time being it will be treated as a
discrete project on which a separate Report may be made.
Active research has not yet begun on either study although the gathering of
background materials has commenced.
3. Statute Law Revision: Applicability of English Law
The English Law Act, R.S.B.C. 1960, c. 129, provides that the laws of
England, as they existed on November 19, 1858 are in force in British Columbia
to the extent that they are not inapplicable through local circumstances and have
not been repealed or superseded by federal or provincial legislation. It follows
from this that an uncertain number of English statutes are in force in this Province.
The aim of this project is to introduce a degree of certainty concerning the
extent to which English statute law is in force here. We hope to identify those
statutes which are in force, with a view to rationalizing this aspect of our statute law.
This has always been recognized as a long-term project and much of our work
has been devoted to gathering background information. As a result of these efforts
we now have a collection of comparative materials concerning law reform in this
area which may be unrivalled in the Commonwealth. Considerable progress has
been made in organizing these materials, and a preliminary list of statutes has been
established.   Our research in this area will continue in 1980.
4. The Parol Evidence Rule
Where the parties to a contract have embodied its terms in a written document,
as a general rule extrinsic evidence is not admissible to add to, vary, subtract from
or contradict the terms of the written instrument. This rule is often known as the
parol evidence rule. There are a number of exceptions to the rule and in British
Columbia the rule has been abrogated with respect to consumer contracts by the
Trade Practices Act, S.B.C. 1974, c. 96, s. 27.
The rule and its scope were explored in a Report submitted to you in
December. It was our conclusion that the rule no longer serves a useful purpose
and should be abrogated.
5. Arbitration
The law covering Arbitration was the subject of intense research by the
Commission in 1978 and 1979. The focus of our attention was commercial
arbitration and the imperfections of the existing Arbitration Act. In April the
Commission circulated a Working Paper that set out a number of proposals for
change. We are in the process of evaluating the response to the Working Paper
and developing our final recommendations. We hope to submit our final Report
in 1980.
6. Civil Procedure
(cr)  Civil Litigation in the Public Interest
Generally speaking, a private individual has no standing to sue to protect the
public at large from a wrongful invasion of its rights. He may only sue when the
interference with the public right is such as to interfere with a private right of his
own or where he has suffered special damage or has some interest peculiar to
himself. Where such factors are absent only the Attorney-General, suing either
alone or, more usually, at the relation of a private individual or public authority,
may seek redress in the courts in respect of a wrongful invasion of a public right.
The role of the Attorney-General has recently been a matter of particular controversy in England owing to the decision of the House of Lords in Gouriet v.
U.P.W., [1977] 3 W.L.R. 300.
In 1976 your predecessor requested that the Commission examine this area
of the law.  This has been done and in May 1979 a Working Paper was circulated
which set out tentative conclusions and proposals for change. The response to that
Working Paper is now being considered. We hope to submit our final Report in
(b) Class Actions
It has long been recognized there are situations in which it is appropriate to
allow a litigant to bring an action on his own behalf and on behalf of numerous
other persons who may have similar claims. Rule 5 (11) of the Supreme Court
Rules permits such actions but the scope and operation of the Rule is often
uncertain, and its scope has been criticized as undesirably narrow.
It is particularly desirable that the law in this area be uniform throughout
Canada and we intend, as far as possible, to co-ordinate this project with similar
work being done within the Province of Quebec and by the Law Reform Commission of Ontario and, through the Uniform Law Conference, with the reforms
adopted or under consideration in other provinces.
(c) Prejudgment Interest Act
The Prejudgment Interest Act, was enacted to implement recommendations
made in a Report (LRC 12) submitted by the Commission in 1973. Five years
of experience under the Act has produced a growing body of jurisprudence and is
sufficient time for any difficulties in the legislation to have emerged. The Commission has embarked on an examination of the operation of the Act and will be
reporting in due course on what, if any, changes are desirable.
7. Estates Projects
(a) Wills and Succession
This is a large study that encompasses a number of related topics. We expect
to be circulating at least three working papers that relate to various aspects of the
substantive law of succession. The first such Working Paper is virtually complete
and we hope to circulate it early in 1980. It will explore the formalities of will
making and set out a number of proposals for change.
A subsequent Working Paper will explore statutory succession rights such as
those that arise under the Administration Act on an intestacy and under the
Testators' Family Maintenance Act. A further paper will examine a number of
miscellaneous rules of law relating to succession such as the presumptions relating
to simultaneous deaths and the law concerning ademption, lapse and conversion.
(b) Probate Procedure and Administration
This will examine the law of British Columbia concerning the procedure used
in obtaining letters probate and letters of administration and the law relating to the
administration of the estates of deceased persons, with a view to its consolidation,
rationalization and simplification. We hope to commence active work on this
project in 1980.
8. Sale of Goods Legislation
Early in 1979 the Ontario Law Reform Commission submitted a massive
Report on the law concerning the sale of goods. It recommended the enactment
of new legislation to replace a statute similar to the Sale of Goods Act in force in
this province. The adoption of the recommended Act in Ontario only, however,
would lead to a serious departure from the high degree of legislative uniformity
that presently exists among the common law provinces. For this reason, the
Uniform Law Conference of Canada added this topic to its agenda for consideration
at its 1979 meeting.
It was agreed that a special Committee of the Conference should be struck to
consider the desirability of promulgating a new Uniform Sale of Goods Act and
whether the proposed Ontario legislation should form the basis of such a uniform
Act. It was further agreed that those law reform agencies concerned with this
issue should provide special assistance. We are pleased to advise of our participation in the work of the Committee. A consultant having special expertise in
mercantile law matters has been engaged and will be working closely with the
9.  Extrinsic Aids to Statutory Interpretation
Section 8 of the Interpretation Act provides that a statute shall be given "such
fair, large and liberal construction as best ensures the attainment of its objects."
In ascertaining these "objects," however, the courts are largely confined to an
examination of the legislation itself. As a general rule a court may not have regard
to other sources that may assist in discovering the "objects" of legislation or the
"intention" of the legislature that enacted it.
Two such sources that are frequently cited as being of potential assistance are
the reports of legislative debates (Hansard) and the reports of Royal Commissions,
law reform agencies and the like that may have preceded legislation. The generally
accepted legal position is that the former are wholly inadmissible as an aid to
interpretation and that the latter are admissible only to identify the "evil" sought
to be remedied by the legislation.
A study on extrinsic aids to statutory interpretation was added to our Programme in 1979. It will examine the desirability of modifying the law so as to
allow these materials to be introduced, for what they are worth, as an aid to
TO. Accounting on Foreclosure
In 1975 the Commission submitted a Report entitled "Security Interests in
Real Property: Remedies on Default" (LRC 24). That Report explained and
made recommendations concerning the rights and remedies available to lenders and
borrowers following default by the borrower on a loan secured by a mortgage or
agreement for sale of real property.
One aspect of foreclosure that was not explored in the Report and which had
not emerged as an issue was the form of the "usual order" so far as it concerns the
calculation of interest payable if the borrower is to redeem the property by
discharging the debt. In two recent cases the courts have reached opposite
In 1977 the Supreme Court of British Columbia in Avco Finance Services
Realty v. Gustafson, (1977) 3 B.C.L.R. 67 held that the mortgagee in a foreclosure
proceeding was entitled only to collect interest to the date of redemption. In 1978,
the Court of Appeal in North West Trust Co. v. Paramount Management Corp.,
(1979) 8 B.C.L.R. 199 overruled the Avco decision and re-established the prior
practice that entitled mortgagees to full interest for the period of redemption
regardless of the actual date of redemption.
In June 1979 your predecessor asked the Commission to examine the issues
at stake and this matter was added to the Programme for study.
IT.  Limitation of Actions
On April 3, 1979 the Commission wrote to your predecessor recommending
a modification of the special limitation periods set out in section 71 (4) (b) of the
Administration Act and section 9 (3) of the Contributory Negligence Act.  These
provisions impose a limitation period of one year for a tort claim, or a claim for
contribution, against the estate of a deceased person. It was recommended, for
the reasons set out, that these limitation periods be extended to two years.
The text of the letter in which this recommendation was made is included as
Appendix C to this Report.
T2.  Defamation and Letters to the Editor
On September 10, 1979 the Commission wrote to your predecessor urging an
amendment to the Libel and Slander Act. The text of the letter is included as
Appendix D to this Report. The recommendation, for reasons set out in Appendix
D, was that a provision be added to the Act concerning the defence of fair comment
in relation to letters to the editor and similar publications.
The text of the recommended provision is that adopted by the Uniform Law
Conference of Canada.   It is set cut below:
(1) Where the defendant published alleged defamatory matter that is an
opinion expressed by another person, a defence of fair comment shall not
fail for the reason only that the defendant did not hold the opinion if,
(a) the defendant did not know that the person expressing the
opinion did not hold the opinion; and
(b) a person could honestly hold the opinion.
(2) For the purpose of this section, the defendant is not under a duty to
inquire into whether the person expressing the opinion does or does not
hold the opinion.
We reiterate this recommendation and are fortified in our conclusion by a recent
Report of the Institute of Law Research and Reform that commends the uniform
provision to the government of Alberta (Report No. 35, Defamation: Fair Comment
and Letters to the Editor, October, 1979).
T3. Subjects of Interest
Preliminary research or the gathering of materials is proceeding on a number
of matters which are not yet part of the Commission's Programme. In most cases
this is to determine if a particular topic is appropriate for formal inclusion in the
Programme as a Commission project.
Many of these matters which are under preliminary consideration arise out of
particular suggestions made and problems drawn to the Commission's attention by
the legal profession and by members of the public. This kind of assistance is
always welcome. Even if the particular suggestion or problem is not one which is
appropriate for Commission study we are often able to transmit it to a person or
agency which is in a position to act.
All final Reports issued by the Commission are published in a typeset format
with the intention that they be available to the public. Our Annual Reports are
distributed by the Commission and are available on request and free of charge so
long as stocks last.
The Provincial Queen's Printer is responsible for the distribution of all other
Reports made by the Commission. A nominal charge is made for copies of those
Reports.   Orders and inquiries as to prices should be directed to:
The Queen's Printer,
Parliament Buildings,
Victoria, B.C., V8V 4R6
A number of our early Reports are now out of print and are not available.
Those Reports are indicated by an asterisk in Appendix A.
Working Papers are produced in a typescript format by an offset process, and
the Commission is responsible for their distribution. Working Papers are usually
produced in limited quantities and our supplies of them are invariably exhausted
by, or shortly after, their initial distribution. Normally, therefore, we are unable
to respond to requests for copies of past Working Papers.
In this portion of our Report we are pleased to sound a somewhat more
optimistic note than has been the case for the past two years. The difficulty during
this period has been that, with the exception of a few months in 1978, there had
been no member of the Commission having as a prime responsibility the planning
and accomplishment of its work. This set us back in the discharge of our task. In
particular the recruiting and retaining of qualified personnel was made much more
difficult and work on a number of important projects had to be deferred.
While the matter of the Chairmanship remains outstanding the recent appointments to the Commission are encouraging. First, they indicate that the Government
has not lost sight of the Commission and the importance of its work. Secondly,
the designation of our former counsel, Arthur Close, as a full-time member has
regularized the internal administration of the Commission. We hope to see the
matter of the Chairmanship resolved. Once that occurs we shall be in a position
to approach our mandate with renewed vigour and enthusiasm.
Our ties with other law reform agencies continue to strengthen and prosper,
both through the reciprocal arrangements for the exchange of documents and
through personal contacts. A meeting of law reform bodies was held in August at
Saskatoon and attended on behalf of British Columbia by K. C. Mackenzie and
A. L. Close. This resulted in a fruitful exchange of information and discussion of
mutual concerns. That meeting was followed by the Annual meeting of the
Uniform Law Conference of Canada. Messrs. Mackenzie and Close were members
of the British Columbia delegation to the Conference.
A useful result of our ties with the Uniform Law Conference is our participation in the Committee on sale of goods legislation described earlier in this Report.
We welcome the opportunity to co-operate with other law reform agencies in a
venture of this kind. This participation has also led to a renewal of our ties to the
Law Foundation of British Columbia. The Foundation responded swiftly and
generously to a request for financial assistance in connection with the sale of goods
Although the Commission reported on Personal Property Security in 1975, it
continues to keep abreast of more recent developments in this area through the
participation of Mr. Close in the Special Committee of the Canadian Bar Association on a Model Personal Property Security Act under the Chairmanship of
Professor Jacob Ziegel.
Our relationship with other agencies of Government, both within and without
the Ministry of the Attorney-General, continues to be a wholly satisfactory one.
As we have pointed out in previous Annual Reports, our policy of doing the
greater part of our research work internally, rather than relying upon outside
consultants, has placed a heavy burden of responsibility upon the shoulders of our
permanent staff. As usual they have responded to the challenge with energy,
enthusiasm and careful scholarship. We wish to thank the members of our
research staff.
Our support staff also make a notable contribution to the work of the Commission. They bring intelligence and efficiency to their duties and share a concern
that our work should be of the highest quality in every respect. We thank them
for their efforts on our behalf.
The past year was a year of transition in the staffing of the Commission. Very
early in 1979 Mr. Anthony J. Spence, our Director of Research, left us with a view
to obtaining his call and admission in this Province. Mr. Spence made a notable
contribution to our work. Our Reports on Proof of Marriage in Civil Proceedings
and on Waiver of Conditions Precedent in Contracts and our recent Working Paper
on Civil Litigation in the Public Interest all bear the stamp of his scholarship.
Happily, he will be returning to us in 1980 as Counsel to the Commission.
Later in the year Mr. Douglas Chalke, our Legal Research Officer, left us to
join the staff of the newly established Ombudsman's office. His time with the
Commission was devoted mainly to the project on Wills and Succession, a difficult
assignment which he tackled with energy and care. We wish him every success in
his exciting new role.
The loss of Messrs. Spence and Chalke was partially offset by Mr. Fred
Hansford who joined the Commission staff as Legal Research Officer in October.
Mr. Hansford was with us briefly in the summer of 1978 and has recently completed a B.C.L. at Oxford. We look forward to working with him.
During 1979 we also had the assistance of Mr. George Copley who joined
the Commission staff for 6 months as a student-at-law under an experimental
shared articles scheme. While he was with us he completed a number of valuable
research documents.
Our support staff has also changed. Patricia Kilpatrick, who for 9 years
served as Secretary to the Commission, left us in September, as did Marianne White
in December. Our support staff presently consists of Sharon St. Michael, Secretary
to the Commission, and Margaret Mortimore, stenographer.
The support which we have received from the organized bar and its individual
members in past years continued in 1979. We rely heavily on the assistance of the
legal profession in a number of ways. At the research stage of our projects,
individual lawyers assist us in gathering facts and in acting as a "sounding board"
with respect to various approaches to difficult issues. Requests for help of this
kind are invariably the subject of a generous response. At the more formal stage
of consultation, various Sections of the British Columbia Branch of the Canadian
Bar Association assist our deliberations with thoughtful submissions on the various
proposals and tentative conclusions set out in our Working Papers. We wish to
thank all members of the bar who gave generously of their time and experience in
the past year.
We also wish to acknowledge the contribution of the Judges Law Reform
Committee. This Committee provides a continuing point of contact with the
judiciary. The members of the Committee are Mr. Justice Lambert of the Court
of Appeal, Mr. Justice Berger of the Supreme Court and Judge Hinds of the County
Court. The members of the Committee assist us through responding to our Working
Papers and other consultative documents and through bringing to our attention
defects in the law that they are well situated to identify. They bring a unique
perspective to bear on our work and we are grateful for their participation.
Finally, we wish to thank your predecessor, the Honourable Garde B.
Gardom, Q.C., Mr. Richard Vogel, Deputy Attorney-General, and particularly Mr.
Mark Krasnick, Associate Deputy Attorney-General, for the attention they have
given to the Commission and its activities.
Peter Fraser
Anthony F. Sheppard
Kenneth C. Mackenzie
Brian Williams
Arthur L. Close
1 January, 1980
Appendix A
No. Title
1 Limitations—Abolition of Prescription*
2 Annual Report, 1970*
3 Frustrated   Contracts   Legislation*
Debt Collection and Collection
Annual Report, 1971*
Mechanics' Lien Act	
Deficiency Claims and Repossessions
Dec. 17,1970
Dec. 31, 1970
Feb. 17,1971
Mar. 19,1971
Dec. 20, 1971
Dec. 31, 1971
June 30, 1971
June 22,1972
9    Legal Position of the Crown    Dec. 12, 1972
10 Annual Report, 1972	
11 Interim Report on Evidence..
12 Pre-judgment Interest	
13    Landlord   and   Tenant—Residential Tenancies
Annual Report, 1973—
Costs of Accused on Acquittal—
Procedure Before Statutory
A Procedure for Judicial Review of the Actions of Statutory
Annual Report, 1974	
Costs of Successful Unassisted
Lay Litigants
The Termination of Agencies	
Powers of Attorney and Mental
Personal Property Security.
Security Interests in Real Property: Remedies on Default
Dec. 31, 1972
Feb. 20, 1973
May 16,1973
Dec. 11,1973
Jan. 1, 1974
Mar. 25, 1974
June 24, 1974
Nov. 18, 1974
Dec. 12, 1974
Jan. 1,1975
Apr. 21, 1975
Apr. 21, 1975
May 12, 1975
Oct. 27, 1975
Dec. 1,1975
25 Annual Report, 1975-
26 Minors' Contracts	
  Jan. 1, 1976
  Feb. 24,1976
27 Extra-Judicial   Use   of   Sworn Apr. 26,1976
28 Rule in Bain v. Fothergill  June 28,1976
29   Annual Report, 1976.
Dec. 31, 1976
Recommendations Implemented
in Whole or in Part by
Land Registry (Amendment) Act, 1971,
S.B.C. 1971, c. 30.
Not applicable.
Frustrated Contracts Act, S.B.C. 1974,
c. 37; Landlord and Tenant Act,
1974, c. 45, s. 61 (e) Commercial
Tenancies Act, R.S.B.C. 1960, c. 207,
s. 34.
Debt Collection Act, S.B.C. 1973, c. 26.
Not applicable.
Conditional Sales Act, S.B.C. 1973, c.
19; Bills of Sale Act, S.B.C.  1973,
c. 7.
Crown Proceedings Act,  S.B.C.  1974,
c.   24;   Interpretation   Act,   S.B.C.
1974, c. 42, s. 13.
Not applicable.
Attorney-General Statutes Amendment
Act, 1975, S.B.C. 1975, c. 4, s. 6.
Prejudgment Interest Act, S.B.C. 1974,
c. 65.
Landlord and Tenant Act, S.B.C. 1974,
c. 45; now Residential Tenancy Act,
S.B.C. 1977, c. 61.
Not applicable.
Limitations Act, S.B.C. 1975, c. 37.
Judicial Review Procedure Act, S.B.C.
1976, c. 25.
Attorney-General Statutes Amendment
Act, 1979, S.B.C. c. 2, s. 52.
Miscellaneous Statutes (Court Rules)
Amendment Act, S.B.C. 1976, c. 33,
s. 94 (a) [in part]; Supreme Court
Rules, Rule 50 (11), 3 (2) [in part]
Land Titles Act, S.B.C. 1978, c. 25
[in part].
Not applicable.
See,  e.g.,  Mineral Act,   1977,  S.B.C.
1977, c. 54, s. 20 (2).
Conveyancing   and  Law   of  Property
Act, S.B.C. 1978, c. 16, s. 33.
Not applicable.
* Report is out of print.
No. Title Date
30 The Rule in Hollington v. Hew- Jan. 11,1977
31 Waiver of Conditions Precedent Apr. 25, 1977
in Contracts
32 Proof of Marriage in Civil Pro- Apr. 25,1977
33 The Statute of Frauds  June 24, 1977
34 Tort Liability of Public Bodies.. June 28, 1977
35 Offences  Against   the   Person Aug. 8, 1977
Act, 1828, Section 28
36 Annual Report, 1977  Jan. 1,1978
37 Absconding Debtors Act  and Mar. 17,1978
Bail Act: Two Obsolete Acts
38 The Replevin Act  May 19, 1978
39 The Attachment of Debts Act.... Oct. 27, 1978
40 Execution Against Land  Oct. 27, 1978
41 Annual Report, 1978  Jan. 1,1979
42 Creditor's Relief Legislation: A Jan. 2, 1979
New Approach
43 Guarantees of Consumer Debts.. June 1, 1979
44 Parol Evidence Rule  Dec. 1, 1979
Recommendations Implemented
in Whole or in Part by
Evidence Amendment Act, 1977, S.B.C.
1977, c. 70.
Attorney-General Statutes Amendment
Act, 1978, S.B.C. 1978, c. 11, s. 8.
Attorney-General Statutes Amendment
Act, 1979, S.B.C. 1979, c. 2, s. 18.
Attorney-General Statutes Amendment
Act, 1978, S.B.C. 1978, c. 11, s. 8.
Not applicable.
Attorney-General Statutes Amendment
Act, 1978, S.B.C. 1978, c. 11, s. 8.
Not applicable.
Appendix B
1. Debtor-Creditor Relationships
(a) Enforcement of Judgments
(b) Reviewable Transactions
(c) Crown Liens
(d) Joint Liability
2. The Law of Damages
(a) Personal Injury Claims
(b) Families Compensation Act
3. Applicability of English Law
4. Arbitration
5. Civil Procedure
(a) Civil Litigation in the Public Interest
(b) Class Actions
(c) Prejudgment Interest Act
6. Estates Projects
(a) Wills and Succession
(b) Probate Procedure and Administration
7. Sale of Goods Legislation
8. Extrinsic Aids to Statutory Interpretation
9. Accounting on Foreclosure
Appendix C
Representations have been made to the Commission on behalf of the Law Society of
British Columbia concerning the limitation period set out in section 71 (4) (b) of the
Administration Act, pursuant to which action against an estate must be commenced within
twelve months of the date of death.
Although a number of special limitation periods were repealed by the Limitations Act,
1975, following the recommendations of the Commission in its Report on Limitations (LRC
15) this particular period was retained.
In recommending its retention, the Commission had in mind the general social policy
that estates should be dealt with expeditiously and that it was not in the public interest that
administration and distribution should be delayed for a significant period of time awaiting the
pleasure of a potential litigant who might or might not choose to assert a claim.
Experience since the coming into force of the Limitations Act, however, persuades us
that the merits of this policy of expeditious administration have been outweighed by
accompanying disadvantages.
Before 1975, although it was coincidence rather than policy, the limitation period of one
year set out in the Administration Act was identical to that governing personal injury claims
arising out of motor-vehicle accidents. Thus, where the defendant was killed in an automobile
accident, the Administration Act tended to be overlooked since it did not impose a limitation
period shorter than that which would have applied if the defendant had not been killed. The
new law of limitations has altered this situation. Most motor-vehicle accident cases are now
governed by the two-year limitation period provided in section 3 (1) (a) of the Limitations
Act. Thus the one-year limitation period in the Administration Act has acquired a significance
it did not have in the past.
We understand, however, that the existence of that limitation period is still often overlooked and, in the result, a failure to sue within one year of the defendant's death in these
cases results in the defeat of otherwise meritorious claims.
There are a number of points we think are relevant. First, in most cases there is an
insurer standing behind the deceased tortfeasor to answer for the plaintiff's claim. In those
cases the existence or nonexistence of the claim is irrelevant to the administration of the
defendant's estate. Thus the limitation period, theoretically for the protection of the defendant's
personal representatives and beneficiaries, in fact operates in favour of the insurer. It is
difficult to see any rational policy reason for putting the insurer in a better position if the
insured is dead than if he had survived.
Secondly, there has in recent years been some erosion of the policy of "expeditious
administration." For example, it seems clear that awards of maintenance under the Divorce
Act can provide that the support obligation survives the death of the respondent if the order
so provides. Such awards have been made in British Columbia [Brocklebank, (1977) 24
R.F.L. 53]. The jurisdiction of the court in respect of such orders may also extend to their
variation after the death of the respondent although the cases have not yet gone so far. A
similar interpretation of the new Family Relations Act is possible.
Finally, two separate agencies concerned with law reform considered the survival of
actions against estates and recommended changes in the law that would permit these actions
to survive. In 1969 the Law Commission of England issued a Report on Proceedings Against
Estates. It was the Commission's recommendation that a comparable special limitation period
in England should be repealed and that the proceedings against estates should be governed by
the normal limitation rules.
In 1963 the Uniform Law Conference of Canada promulgated a Uniform Survival of
Actions Act. Under that Act the time to bring an action against an estate would be the
longer of:
{a) the time otherwise limited for bringing the action; or
(b) one year from the defendant's death.
The Uniform Act has been enacted in New Brunswick.
Having regard to all the interests at stake, we conclude that some relaxation of this
limitation period is called for. We hesitate to suggest its repeal entirely but we do believe that
the period could be extended from one year to two years without a significant impact on the
efficient and expeditious administration of estates and with the beneficial effect of eliminating
one source of doubt and uncertainty in the calculation of limitation periods.
If section 71 (4) (b) of the Administration Act is so amended, it would follow that
section 9 (3) of the Contributory Negligence Act should be similarly amended.
Appendix D
A recent case of the Supreme Court of Canada has significantly limited the availability
of the defence of fair comment in defamation actions. In Cherneskey v. Armadale Publications, (1979) 90 D.L.R. (3d) 321, it was held that where an opinion on a matter of public
interest that has been expressed by a person is published by a second person, the defence of
fair comment is not available to the second person unless he agrees with the opinion. In more
concrete terms, when a newspaper publishes a letter to the editor which expresses an opinion
that may be defamatory, the newspaper can raise the defence of fair comment only if it agrees
with that opinion.
When the decision emerged earlier this year, a study of the issues raised by the case was
added to the Commission's programme. It seemed totally wrong in principle that the law
should stifle freedom of expression and debate on important issues by encouraging the media
to publish only opinions with which they agree.
Active research was put in abeyance, however, when it was learned that the Uniform Law
Conference had placed this matter on the agenda for consideration at their 1979 meeting. It
was given high priority, and a uniform provision was adopted in the terms set out in the
Appendix. Its effect is to preserve the defence of fair comment for the final publisher so long
as he acts in good faith. The Commission agrees with the substance of the provision.
The actual language of the provision does not command our wholehearted support. Its
drafting was a compromise, but one on which the Conference as a whole could agree. The
subject-matter, however, is one in which uniformity is particularly desirable and individual
reservations with regard to the drafting should be submerged in its pursuit. A publication
that is national in scope should not have to worry about the defence of fair comment varying
from province to province.
The Commission urges that, in the coming legislative session, high priority be given to
amending the Libel and Slander Act through the addition of such a provision.
Queen's Printer for British Columbia ©
Victoria, 1980


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