Canadian Lawyer

Regional wRap-up ALBERTA LAWYER CRACKS GREAT WALL OF CHINA a lot of large Canadian law firms are taking a run at the huge and lucrative Chinese investment market. But a problem they all face is foreigners cannot become lawyers in China. So it is very unusual to see the Chinese-owned Shanghai law firm of Zhong Lun name a Canadian, Blaine Turnacliff, as counsel. The firm, a rising star in the exploding Shanghai legal market, employs over 800 lawyers and continues to grow. But while Turnacliff, a member of the British Columbia Bar, is a full partner he cannot practise as a lawyer. His role in the law firm is as an adviser to both Chinese and Canadian business clients. So how does a 47-year-old Canadian lawyer, who isn't even allowed to formally practise law, get such a sweet slice of this Shanghai legal action? Turnacliff, a farm boy from near Olds in central Alberta, puts it all down to kung-fu — as a teenager Turnacliff took up martial arts and became fascinated with all things Chinese. After getting a BA at the University of Alberta, he went to law school at the University of Victoria, but his fascination with kung-fu continued. So at 27, after graduating with his LLB, he did not take his articles and instead went to Taiwan to study king-fu and Mandarin. While honing his martial art and Mandarin language skills, he also picked up a little parttime work from local Taipei law firms. In 1998, Turnacliff returned to Canada. His unusual mix of a Canadian law degree and fluent Chinese landed him an articling position with a Vancouver firm. Turnacliff began practising in Vancouver. "I really liked it," he remembers, but was torn by the opportunities in China. "Am I going to stay in Canada or go to China and use my language skills?" he remembers asking himself again and again. Finally, in 2001, Turnacliff took a deep breath and "decided to give China a shot." He boarded a plane and went to Beijing where he quickly got a position with a local firm and then followed opportunity to Shanghai. Now with a Chinese wife and a young son his dream is to one day return to Canada and open a branch office for his Chinese law firm in B.C. As for his kung-fu? He has put that aside and now gets his "kicks" owning part of a small Shanghai nightclub. — GE 10 F e b r uary 2013 www.CANADIAN L a w ye r m a g . c o m DUNCAN LIQUOR STORE CASE CLARIFIES WHO'S THE BOSS J ust who holds clout in a business and who doesn't has been clarified by a Supreme Court of British Columbia judicial review of a $7,500 BC Liquor Control and Licensing Branch enforcement fine against a Duncan, B.C. liquor outlet. At issue was whether a night supervisor cashier, who was caught selling liquor to a minor, was a directing mind of the business. "The judge's decision didn't change who is a directing mind. What it did was clarify who is a directing mind," said Vancouver lawyer Andrew D. Gay of Gudmundseth Mickelson LLP, who acted for Beverly Corners Liquor Store Ltd. in the court case where a decision came down in December. Gay, who handles cases involving retail liquor store outlets, said the court case has implications for other businesses bound by provincial statutes as it sets out responsibilities for the directing minds of a license holder or business owner. On May 11, 2011, Beverly Corners sold a six-pack of beer to a minor — who was employed by the branch as an agent — without requesting the required identification. The night supervisor on duty who made the sale was leaving to go out of province the next day but was known as a conscientious employee who normally followed the store's rules on checking two pieces of identification. The judge pointed out the store was also known to have rules that were seen as tougher than most outlets in the area. However, as a result of the violation the branch's general manager notified the licensee that he was imposing a $7,500 fine on the store. The store asked for a judicial review of the decision, moving it to the B.C. Supreme Court. "Beverly Corners concedes that a six-pack of beer was sold to a minor," Justice Janice Dillon said in the judgment, adding these facts were not in dispute. The licensee, however, felt it could argue a defence of due diligence or that the store had measures in place to prevent such occurrences during the branch's review. However, the branch's general manager maintained the night supervisor cashier was a "directing mind" of the liquor outlet, representing management, and therefore could not use the defence of practising due diligence. As Gay explains, management who make the rules cannot plead due diligence or that they have done everything possible to prevent an incident if they themselves do not adhere to policy. "It's like saying that I can't prevent myself from doing it," he said. Dillon said: "The general manager applied the wrong test to determine whether the supervisor cashier was the directing mind of the licensee." The test is not whether the person on duty represents the management, but whether the individual plays a role in the "governing executive authority of a company" and sets policy. She ruled the night supervisor cashier was only carrying out policy and therefore not an operating mind of the store. Beverly Corners Liquor Store Ltd. v. British Columbia Liquor Control and Licensing Branch would be of interest to any business owner or manager who might plead due diligence when fighting a violation notice of a provincial statute. However, the case also stresses the importance of having clear guidelines and policies in place showing due diligence was taken to prevent violations. — JEAN SORENSEN jean_sorensen@telus.net

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