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Vol. 37 No. 3 Fall 2012

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EDITOR’S

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IN THIS ISSUE President’s Report

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Avoiding & Resolving Disputes

4

Back to Basics

5

What’s Happening

6

View from the Bench

7

Practice Pointers

8

People & Places

8

Unsung Hero

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After the Loving

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Front & Centre

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CCCA

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Alberta Branch News

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CBA National News

16

LESA

17

Counsel Network

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PBLA

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Cross-Section North

20

Assist

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Cross-Section South

21

USAs, Life Insurance & Capital Dividends

22

Adapting to Change

23

CLERC

24

2012-13 Branch Volunteers

25

Classified et Cetera

27

Non-Profit Announcements

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This edition of Law Matters focuses on Corporate Counsel – with articles of interest to both in-house counsel and private practice lawyers whose clients are in-house counsel. Fred Headon, General Counsel at Air Canada provides some valuable pointers to lawyers who work with in-house counsel. Steven Mandziuk, QC has written an interesting account of his experiences and the initial challenges and opportunities he met when he joined Finning (Canada). Bev Cline with the Canadian Corporate Counsel Association has provided an informative article on issues relating to family status accommodation that will be of benefit to both in-house counsel and private practice lawyers. We have a number of other informative and educational articles of general interest for most practitioners, including articles on conflict of interest issues arising from lawyers litigating in matters in which they have a business interest, Unanimous Shareholders Agreements in the context of life insurance and capital dividends, and a report from Nigel Bankes on the Law of Joint Ventures arising from the Alberta Law Reform Institute’s recent report on Joint Ventures. And for something completely different: the Honourable Judge A.A. Fradsham reminds us that Christmas is nigh. Shannon McGinty, Editor

By Shannon McGinty

As the new Editor of Law Matters, I am pleased to welcome on board with me a few new faces to the Editorial Committee, including Katherine Bilson, Enrique Dubon-Roberts, Geoff Ellwand, and Melissa Gorrie. I can also say that I am truly grateful to have our long-term members still on-board, as they truly are the “brain-trust” of this publication and bring a wealth of experience and knowledge that I was particularly grateful for at our recent annual editorial committee meeting. Without them, our brainstorming session would likely still be going… As Cyril S. Gurevitch, QC, notes in his President’s Report, it is the CBA’s responsibility and role to speak out in support of all lawyers and to seek to educate and engage lawyers within a larger legal community. These principles are at the forefront of our decision-making when we look to what we will review, analyze and discuss in the coming year’s issues of Law Matters. With that in mind, I sincerely welcome any comments you may have to ensure that this publication remains a vital and informative, and hopefully occasionally entertaining, element of the service that the CBA Alberta provides to you, its members. And finally, on behalf of the Alberta Branch, a big and heartfelt thank you to Dragana Sanchez Glowicki who has dedicated countless hours of hard-work and creativity over the last seven years as the Editor of Law Matters. Luckily for us, she remains with us on the Editorial Committee and will continue to share her valued insight and experience. D

Contributing Authors this Issue Nigel Bankes Katherine Bilson Joe Bradford Chad Brown Marian V. De Souza Hon. Judge A.A. Fradsham

Jennifer Flynn Fred Headon Patty Johnston, QC Anne Kirker, QC Ola Malik Karen McDougall

Steven Mandziuk, QC Gillian Marriott, QC Ed Picard Curtis Serra Aaron Stephenson

EDITORIAL COMMITTEE

L-R top row: Katherine Bilson (Calgary); Terrence A. Cooper, QC (Fort McMurray); Enrique Dubon-Roberts (Calgary); Anthony G. Young, QC (Calgary); and, Devin Mylrea (Calgary). L-R bottom row: Geoff Ellwand (Calgary); Melissa Gorrie (Edmonton); Robert Harvie, QC (Lethbridge); Dragana Sanchez-Glowicki (Edmonton); and, Gillian Marriott, QC (Calgary). 2 | Law Matters


PRESIDENT’S

REPORT

This Report constitutes my first report to members as President for the 2012-2013 term. It is with great pride and enthusiasm that I enter the new year. I want to welcome our new executive this year, consisting of Past President Jeff Wise, QC, Vice-President Marian De Souza, Treasurer Steven Mandziuk, QC, and our newly elected Secretary, Wayne Barkauskas. They are an excellent and dedicated group of individuals who have Cyril S. Gurevitch, QC always worked diligently to enhance the President Alberta Branch. I am looking forward to their wise counsel during my tenure. In the same vein, it is with a sense of sadness that we say good-bye to our outgoing Past President, Analea Wayne, QC, who has added her thoughtfulness, wisdom and style to our Executive for the past 5 years. As you may be aware, CBA Alberta now boasts over 5,300 members in the Province of Alberta. Our Executive, Council, and staff are all here for you. Since I joined this great organization in 1975, the benefits and value to my practice and legal career have been overwhelming. It can do the same for you. And so I encourage you all to volunteer and actively participate in Branch activities as a Council, section or committee member. Please refer to the CBA website for opportunities that may be of interest to you. This edition of Law Matters includes a list of Committee Chairs and Branch Volunteers (p. 25-26) whose commitment to CBA is greatly valued.

By Cyril S. Gurevitch, QC

look to include articling positions and young lawyers 1-5 years post admission. Preparations continue for the 2013 Alberta Law Conference. A brochure and registration form is included with your Law Matters. Committee Chairs, Karen Platten, QC, and Jeremiah Kowalchuk are leading the way to an excellent convention to be held in Edmonton on January 31 and February 1, 2013 at the Hotel Macdonald. The Continuing Legal Education component will be strong as usual. One major highlight will be the opportunity to participate in breakout discussions with the judiciary at the joint panel hosted by the Court of Queen’s Bench on January 31. We will also have the Distinguished Service Awards Luncheon, held in conjunction with the Law Society of Alberta, and an array of interesting speakers. We look forward to everyone registering for a fantastic learning, networking and fellowship experience! We are looking forward to our upcoming Council meeting in January, at which time we will have presentations from the two representatives from Ontario who are running for 2nd Vice President of the CBA National. Both Paul Sweeney and Janet Fuhrer are excellent candidates for the position and we wish them the best of luck!

For new members of the CBA, our mandate is to speak out in support of all lawyers and to recognize the substantial services they provide to their clients and their community. The CBA provides its members and society with value-added services through the provision of continuing legal education to its members and legal education to the public at large. CBA advocates on behalf of the judiciary and strongly supports the principle of judicial independence. CBA also provides input on matters of policy and legislation to all governments in Canada.

The Branch is continuing its strong section work. We see this as the backbone of our Association. And with our new national fee schedule approved and moving forward, we are now focused on refining our Strategic Plan. This will be Alberta-made, but based in large measure on the National CBA Plan passed last August at the Vancouver CLC. Our main areas will include the Small Communities Initiative, creation of geographic sections, increasing the use of technology to provide value and services to our members, analyzing our financial situation including how to augment revenues from hitherto untapped resources, adding new and exciting professional development opportunities, focusing attention on succession planning, rejuvenating our Council and engaging younger members in Branch activities. We have a very ambitious agenda, but the enthusiasm is high and I feel certain we can achieve our goals.

The CBA Executive met with Minister of Justice Jonathan Denis in September 2012, to discuss issues of mutual interest and provide an update on some of our major initiatives, including the “Small Communities Initiative”. CBA has identified the need to increase the lawyer population in small communities across Alberta as a key factor to ensure Access to Justice for all Albertans. For the 2012-2013 year I have chosen to focus on this ambitious project.

I want to end this report with an expression of deep appreciation to all of the dedicated staff who serve our Branch. Under the direction of our new Executive Director, Maureen Armitage, and the staff in Calgary, we are moving ever forward with a first class organization. I also want to highlight the efforts of Heather Walsh and the staff in our Edmonton office, who are working tirelessly to organize the upcoming ALC in 2013. D

On September 18, 2012, Council approved the creation of an Access to Justice Committee chaired by Ola Malik. As outlined in my article in the Summer 2012 edition of Law Matters (p. 25-26), we are intent on pressing ahead with the Small Communities Initiative in an attempt to attract and retain lawyers in those municipalities outside of Edmonton and Calgary. The project has broad-based support from a large number of constituent groups, including: Law Society of Alberta, Alberta Rural Development Network (ARDN), Department of Justice, both the U of C and U of A Faculties of Law, Pro Bono Law Alberta (PBLA), and Alberta Lawyers’ Assistance Society (Assist). At a teleconference meeting on September 11, 2012, two pilot projects were chosen, one in Medicine Hat and the second in Grande Prairie. Our objective will be to engage the lawyers in those centres, as well as the larger business community, to attract first and second year law students. In the longer term, we

The Canadian Bar Association - Alberta Branch will hold its

Annual General Meeting following the afternoon Winter 2013 Council Meeting January 30, 2013 in the CBA-AB Branch Northern Office 1001, 10235 - 101 Street, Edmonton

Law Matters | 3


AV O I D I N G & R E S O LV I N G D I S P U T E S Making Your In-House Lawyer a Happier Client By Fred Headon Fred Headon is CBA First Vice-President and Assistant General Counsel – Labour and Employment Law, Air Canada.

Fred Headon

I am delighted to contribute to this edition of Law Matters, with its emphasis on in-house practice. This emphasis reflects an important role the CBA plays: CBA is a unique forum for in-house counsel and the lawyers they engage to discuss how they can improve how they work together. Organizations that put up walls between in-house and external counsel only perpetuate the frustration many in-house and private practice lawyers feel about relationships that are not responding to the needs of each other. I am thrilled at the Alberta Branch building bridges, not walls.

In my six years as in-house counsel, I have found that there are many ways we can work better with our colleagues in private practice and much both of us can learn from other professions and service providers. For this article, I offer a few of those lessons, which relate to providing services which are valued. While much has been written about how in-house counsel can reduce the costs of legal services, some of the easiest ways to do that is to ensure that the service provided is valued by the client. I don’t have room here to set out my thoughts on how to value major litigation or significant transactions. Instead, here are a few quick examples of how to make sure what is provided is what is valued, which makes it something that your in-house client will be pleased to pay for. Providing what your in-house client values also makes for a happier in-house lawyer. 1. Ask me what I need Don’t assume what resolution I am looking for in a given matter, even if we have been working together a long time. Ask. It may appear obvious to you (close the deal, win the case, etc.), but the legal element is usually but one small part of a larger picture. Even if the legal element is the driver, there may be sensitivities that must be accounted for: how will the resolution affect our suppliers? Our customers? Our employees? Our shareholders? So, ask what the objectives are and what the ideal resolution looks like. If I engage you, it is because we value your input, but we are looking for the right output and hence only to pay for input that helps to get us there. 2. Ask me what I know Again, ask. I may need background in areas of law which I am not familiar with. On the other hand, I am familiar with what I practice often. As the number of lawyers practicing in-house continues to grow, we are becoming more specialized in our practice areas. You will get to know what I know over time, but when in doubt ask. If I don’t need the background, I will be unlikely to want to pay for it.

4 | Law Matters

3. Help me meet budget Increasingly, businesses are expecting lawyers to deliver services on budget. I know files can be of unpredictable duration and complexity. But let’s keep this in perspective. For example, to get a flight in the air, my employer needs operating crews and ground crews who are qualified, rested and available, the plane needs fuel, grooming, and catering, the passengers and bags need to be safely brought on board, the plane and its thousands of parts needs to be in airworthy condition and documentation about that needs to be up to date, the flight plan and authorizations need to be arranged and beyond that we need to comply with a multitude of domestic and foreign regulations and try to meet customer needs, all at a competitive price. We do that over 600 times a day. And all that is to be done to budget. So, it’s hard for me to explain to people who run the business that it is difficult to budget for a two day trial. Give me a quote based on your experience. Let’s discuss your assumptions and who will do which tasks. When you send an invoice, re-read the budget. Are we on-track? If we are heading over budget, let me know before the bill arrives and let’s discuss why so I can explain it and we can find a way to manage from here on. Coming in on budget is valued and hence being over budget means there are things we are unlikely to want to pay for, unless we know they are coming. 4. Help me find new ways to do things Be on the lookout for trends and ideas. Find ways to simplify work. Turn your attention to the things that neither of us like to do – and find ways to make them less painful. For example, you don’t like tracking your time and I don’t like reviewing it. How else can we do this? 5. Help me explain us to them You and I need to be sure that the legal work is well done. That may mean I may ask tough questions about your conclusions. But once we are done, we need to be understood. Being in-house I have come to understand that lawyers seem to be some of the few people who still regularly use word processing software. I regularly receive documents full of text from clients which are in formats like Microsoft Excel. In most any meeting with more than a couple of participants, there is a PowerPoint prepared. Help me take our work and package it in a way that is accessible and understood. There is no value, and hence no reason to pay for advice that is ignored because it was not understood. I hope these lessons help both in-house and external counsel in Alberta deliver more value for their clients. D

JUDICIAL UPDATE PROVINCIAL COURT: Aran Veylan, QC, has been appointed as a Provincial Court judge to Edmonton Family & Youth, effective November 26, 2012.


In-house Practise: One Lawyer’s Experience By Steven N. Mandziuk, QC Steven N. Mandziuk, QC, is General Counsel at Finning (Canada) a division of Finning International Inc. and Treasurer for CBA Alberta. In the spirit of the recently passed Thanksgiving season, life as corporate counsel is a bit like staring at a cornucopia. Traditionally, a cornucopia overflows with delicious seasonal offerings – fruit, vegetables and the like. The corporate counsel analogue spills a multitude of diverse legal issues: human resources, commercial transactions, complex financing arrangements, mergers and acquisitions, real estate deals of all descriptions, supporting 6 Steven Mandziuk, QC Sigma initiatives, managing collections, overseeing a wide range of litigation matters. Delicious, right? Well, for a committed generalist and a curious person, it certainly is. I started at the Finning (Canada) legal department as a Greenfield in early 2006. Finning (Canada) is the Canadian division of the world’s largest Caterpillar equipment dealer and had outsourced its legal requirements for 73 years when I arrived. I had the excitement of starting a law firm, with all of the creative energy that goes into that process (only a lawyer could get excited about establishing a library, a filing system and those sorts of things) with the advantage of immediately having an enormous amount and variety of high quality legal work on my desk. Since 2006, the department has grown in influence and visibility within a multibillion dollar organization with more than 4000 employees in Canada. I serve in a traditional advisory role to every department and grouping that requires legal advice, but I am also closely involved in strategic business decisions and find it quite exciting to work at the heart of the western Canadian economy and be a part of a global operation that also covers the U.K., Ireland, Chile, Bolivia, Argentina and Uruguay. I chair our Regional Ethics Committee, our Policy Committee and serve as Corporate Secretary to two subsidiary corporations (and as a member of the Boards of both), including our very successful Cat Rental Stores operations. On a daily basis I am required to hone administrative skills (including budget and financial management) and work to develop processes, manage people and try to help my organization find ways to achieve greater levels of compliance, risk management and efficiency, all of which ultimately lead to profitability. There is oversight of outside counsel engagements of course, but like most companies the trend is to do as much legal work as possible in-house and to only outsource where a particular expertise or specialty is required, or where infrastructure requires a large amount of legal “horsepower” to be brought to a particular issue (for example, an acquisition). The job is demanding and the work ranges from the straightforward to the very complex. As with most lawyers these days I am expected to be available 24/7/365. An in-house lawyer is constantly required to think on his or her feet and to work with a wide range of people (mostly non-lawyers), both in terms of their personalities and their individual business and legal sophistication. When dealing with customers, many

of which are very large and have their own legal departments, there is an element of diplomacy and balancing of interests required that can be very challenging and, of course, very rewarding. Above all, an in-house counsel position requires a practical and solution-oriented approach, the ability to make decisions quickly, provide speedy analysis and to communicate effectively and in a straightforward fashion. Many of the readers of this publication interact with other legal professionals all day long (lawyers, legal educators, students, members of the judiciary) and one of the risks of an in-house counsel position in a small department is isolation. One tends to spend the day with accountants, engineers, salespeople, executives and so forth. I have found that my involvement in the Canadian Bar Association has amply filled the need that we all have for affiliation and community, along with delivering valuable education and professional development opportunities. I loved my time in private practice and was fortunate to work with some incredible lawyers and have many invaluable experiences. I certainly have no regrets about my decision to take an in-house position. D

REGISTER FOR CBA ALBERTA SECTIONS ONLINE! www.cba.org/alberta The CBA offers a full range of sections as the entry point for members to become active. CBA members may join the Branch Sections relevant to their practice areas, and are then automatically enrolled in the corresponding National sections. With your Section membership, you’ll enjoy many advantages: • Improve your skills. Participating in Section activities brings valuable opportunities for networking and mentoring relations. • Meet colleagues. Share concerns and hear from experts on current issues at the Branch and National levels. • Substantive Learning. Learn about the law in your own area and continue to build your knowledge base with continued professional development. • Participate in CBA Governance. Membership provides you the opportunity to contribute to the governance of CBA Alberta by joining our Council or Executive. • Receive regular communication. Members are kept current through notices of meetings, summaries of law reform developments and newsletters containing the latest professional information. CBA North Office P: 780-428-1230 E: edmonton@cba-alberta.org CBA South Office P: 403-218-4313 E: sections@cba-alberta.org Law Matters | 5


W H AT ’ S

HAPPENING

By Patricia Johnston, QC

November

March

19: CCCA presents Managing Workloads

14: The Calgary Bar Association presents the 2013 Judges’ Dinner. Westin Hotel, Calgary, AB. Visit www.calgarybarassociation.com for information on how to become a member.

and Workflows in the Legal Department, Calgary, AB. Contact: Kristina Unsworth (kunsworth@ccca-cba.org)

April

Patty Johnston, QC

21: CCCA presents a webinar Adapting

13-16: CCCA 2013 National Spring Conference, Toronto, ON. Visit

to a Changing Environment: Guidance on Leadership and Practice Management for In-House Counsel. To register and learn more about this webinar go to http://www.cccaaccje.org/En/events/main/pd.aspx

http://www.ccca-accje.org/En/events/main/spring.aspx for details.

23 – 24: 13th Annual Administrative Law, Labour and Employment

May 23-24: CBA presents the 2013 National Biennial Health Law Summit: Westin Nova Scotian Hotel, Halifax, NS. Contact: Mahoganey Jones (CBA National Office). Phone: 613-237-2925; 1-800-267-8860, ext. 189 or via e-mail mahoganeyl@cba.org.

Law Conference: At the Crossroads, Westin Ottawa, Ottawa, ON. Contact: Mahoganey Jones (CBA National Office). Phone: 613-237-2925; 1-800-267-8860, ext. 189 or via e-mail mahoganeyl@cba.org.

June

February

Energy and Resources Law Summit, The Explorer Hotel, Yellowknife, NT. Contact: Leslie Hurard (CBA National Office). Phone: 613-237-2925; 1-800-267-8860, ext. 186 or via email leslieh@cba.org

14 – 17: CBA presents the 2013 Mid-Winter Meeting of Council, Fairmont Tremblant, Tremblant QC. For further details check online at http://www.cba.org/CBA/annualmeeting/midwinter/

6 | Law Matters

20-21: CBA presents the 2013 Annual National Environmental,

Please send your notices to Patricia (Patty) Johnston, QC c/o Energy Resources Conservation Board Phone: 403-297-4439 E-mail: patricia.johnston@ercb.ca


VIEW FROM THE

BENCH

Hon. Judge A.A. Fradsham

As this column lands on your desk, it is likely you will be wondering why you failed to start Christmas shopping earlier this year, as you had promised to do about this time last year. You will also be comforting yourself that there is still sufficient time, and that it will all get done. You will be partially correct: somehow, some passable version of “it” will get done, but, because there really is insufficient time (just as there was last year and all the years before that), the process will reduce your life expectancy...cue making a promise about next year.

We invest a great deal of energy in the Christmas season (or, “the holiday season”, as the more sensitive amongst us call it... those being the same people who work on the theory that if the large, floppy-eared, great animal mass with a swinging trunk and trumpeting call standing before them is called a “pachyderm”, then, magically, there is no elephant in the room). It is the one time of the year when we take down from the shelf our concepts of the “perfect Christmas” (which we lovingly learned at the feet of those infallible instructors in realism...Hollywood script writers and directors), and try to stage-manage family, friends, weather, and straining credit limits, into a production worthy of Cecil B. De Mille. Most often the end result is less The Greatest Story Ever Told, and more National Lampoon’s Christmas Vacation meets Mr. Bean. At least, that has been my experience.

By Hon. Judge A.A. Fradsham

and then re-connected. All seemed well, and we marveled at our good fortune that this had not happened the following week (i.e., perilously close to Christmas). Cue the Greek tragedy. On December 24, I discovered that the water from the washing machine was bubbling out of the floor drain in the basement. My resultant oral invocation of the forces of nature, while colourful, was most assuredly not festive. Another call to the “septic guy”. He would be pleased to attend...on December 27. Since orchestrating his attendance would have involved violations of the kidnapping sections of the Criminal Code (a bit of a career limiting in my line of work, though consistent with the Christmas Vacation theme), we resigned ourselves to using a portable toilet left over from our cottage days (I have as much luck in getting plumbing to work as I do in understanding the rule about similar fact evidence). One of our neighbours kindly said we could also use her facilities as required. Since they were about one-quarter mile away, we developed a fairly narrow interpretation of the term “required”. Hence, very late every night, from December 24 to December 26, if one had looked out into the pasture west of our house, one would have seen a solitary figure, bathed in the glow of a full moon, bundled against the not so pleasant frigid temperatures, emptying some large container of ... stuff ... onto the breast of the new-fallen snow. Not quite the Clement C. Moore image portrayed by Hallmark. D

For those of us who live in the country, as Gloria and I do, the expectations are even higher. Hallmark and Carleton have for years been producing Christmas cards depicting snow covered farms and horse drawn sleighs full of idyllic family units whose members are bundled under blankets to protect against the pleasantly chilly starlit sky. These images of a country Christmas make Normal Rockwell look like an angry graffiti artist. So, when people come to visit us at Christmas, they expect full frontal CHRISTMAS. Now, Gloria discharges her responsibilities in stellar fashion. The house is lovingly decorated so that Christmas exudes from every corner...the Victorians look minimalist next to Gloria. One of our friends calls her, “Mrs. Claus”...he must think she is a widow since he never refers to me as Santa. In my defence, I too try to deliver in the atmosphere department. I doubt there are more than a handful of Christmas CDs which I do not have (unless they were made after 1960), and I play them from December 1 until Boxing Day. By “play them”, I mean play them incessantly, and to the exclusion of all else, for that entire 26 day period (ignore Rule 13.3 for this calculation). I confess that towards the end of that period some people have threatened to ram sprigs of holly into their ears, or into my .... well, let’s not dwell on that. Each Christmas seems to add its own special circle to our festive equivalent to Dante’s Inferno. My personal favourite was the year the plumbing system broke down. As with many rural residents, we have a septic system, and are not connected to “one of them-there fancy, sissy sewer systems”. About three years ago, during the week before Christmas, our septic pump seemed to develop a problem, and the alarm indicating a full, non-draining septic tank, went off. Septic pumps as a species have a difficult life. Their task is to pump the liquified ... stuff ... from the holding tank into the septic field. It is not glamourous work, but it is none the less important for all that. Our pump had downed tools which led to an “upping” of water. A check by the local septic guy determined (as he thought at the time) that the pump was fine, and had simply had a hiccup (personally, if I were a septic pump, I’d gag much more than hiccup). In keeping with the computer age’s equivalent of the last century’s miracle cure (antibiotics), the pump was disconnected from its power source

HIGH QUALITY Reliable Legal Research Experienced Research Lawyers Barbara E. Cotton, B.A., LL.B. PHONE : (403) 240-3142 FAX: (403) 242-5756

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www.bottomlineresearch.ca Law Matters | 7


PRACTICE POINTERS Beware of Multiple Hats: Avoiding Conflicts of Interest By Anne Kirker, QC and Aaron Stephenson

Aaron Stephenson

Anne Kirker, QC

The Benchers of the Law Society of Alberta recently approved new Conflict of Interest rules for inclusion in the Code of Professional Conduct which came into effect on November 1, 2011. In bringing these new rules to your attention, it was, coincidentally, also an opportune time to highlight a very recent decision of the Alberta Court of Appeal in which a conflict of interest issue was addressed. In Beacon Hill Service (2000) Limited v. Esso Petroleum Canada, 2012 ABCA 269 (“Beacon Hill”), the Alberta Court of Appeal was asked to decide if a Justice of the Court of Queen’s Bench erred by barring a lawyer from representing a company, Beacon Hill, of which the lawyer was the principal and “leading actor”.

The plaintiffs by counterclaim named both Beacon Hill and the lawyer as defendants by counterclaim. There was “no question” that the lawyer would be a witness, and that his testimony would be contested. Nevertheless, the lawyer sought to represent both himself and Beacon Hill. The plaintiffs by counterclaim brought an application to remove the lawyer and his firm as counsel of record because of alleged conflicts of interest, including arising from the lawyer’s role as a material witness. The application by the plaintiffs by counterclaim was granted, in part. The lawyer and his firm were ordered removed as counsel of record for Beacon Hill. The Justice refused to accept that the right of selfrepresentation permitted the lawyer to represent Beacon Hill, as there were potential interests at stake other than the lawyer’s own. While the right of self-representation allowed the lawyer to represent himself personally, that representation too was subject to the Code of Professional Conduct. The fact that the lawyer was defending his own conduct qua businessman did not derogate from his professional ethical obligations as a barrister and solicitor. The Court of Appeal found no error in the decision of the Justice below, including his taking of jurisdiction over counsel: “This jurisdiction [of the Court of Queen’s Bench] extends to making orders that affect counsel, who are, after all, officers of the court.” It was reasonable for the Justice below to identify the lawyer and his firm as being unable to conduct the litigation for Beacon Hill with detachment given the financial and reputational interests at stake. A lawyer whose business interests are the subject matter of litigation has a financial stake in the outcome of the litigation unlike the financial stake of lawyers in other matters. This personal interest interferes with dispassionate advocacy, and gives rise to a conflict of interest which is rightly remedied with the removal of counsel to ensure objectivity. 8 | Law Matters

Occasionally, lawyers do engage in business activities other than the practice of law. When so acting, they wear “hats” other than as barristers or solicitors. Potential conflicts of interest abound when the non-legal businesses of lawyers end up requiring professional legal services. Beacon Hill is a reminder that our right of audience before the Court is a privilege extended to us because of our presumed ability to advocate objectively and ethically. A lawyer may not act if his or her personal interests are inconsistent with this professional ethical obligation. Any lawyer is therefore well advised to carefully consider what “hat” he or she is wearing when litigating about personal business interests. Be aware as well that our professional liability insurance group policy excludes coverage for legal services provided in relation to a lawyer’s own ancillary business activities. D

People and Places Please send us your news! peopleplaces@cba-alberta.org Calgary: Waldemar Braul is now with Bennett Jones LLP. Fasken Martineau is merging with the Johannesburg-based firm Bell Dewar. Gwenneth R. Feeny is now with Legal Aid Society of Alberta. Holthe Tilleman Gross LLP is a new firm, information at 403-236-7332. Robert A. Homersham is now with New Urban Consulting Inc. Larry Hurd Law Office is now at 460, 736 - 8th Ave SW, Calgary, AB T2P 1H4. Richard Jones is now with McMillan LLP. Robert H. Lee is now with Felesky FLynn LLP. Evans Fagan Mckay is a new firm, information at www.cdevans.com. Jenine Mak is now at Blake, Cassels & Graydon LLP. David A. McGillivray is now with Bennett Jones LLP. McLennan Ross LLP is now at 350 - 7th Ave SW, Calgary, AB T2P 3N9. McLeod & Company LLP is now McLeod Law LLP. Megan Cole Reinkens is now with Enmax Corporation. Rita. M. Richardson is now with Richardson Law. Vipond Jones is now Vipond Law. Peter W. Yates is now with Fraser Milner Casgrain LLP. Edmonton: Tracy C. Brown is now practicing Family & Divorce Law at Crerar Law. Rebecca M. J. Cuthbertson Hulst is now with Torch Law & Mediation. Kary Bruce Hargreaves, QC, is now with Felesky Flynn LLP. Linda Huebscher, CUPE is now at #300, 10235 124 St, Edmonton, AB T5N 1P9. Allison McDonald is now with Felesky Flynn LLP. St. Albert: Goldsman Shadlyn is now Shadlyn Law. Saskatoon: Kevin Dale Hill is now with Hill Law Office.


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Law Matters | 9


UNSUNG HERO

Steven Florendine By Ola Malik This feature titled “Unsung Hero” is intended to introduce a member of our profession who has demonstrated extraordinary leadership, innovation, commitment, or made significant contributions to social justice and community affairs. We are delighted to introduce you to Steven Florendine. For those of you who believe young lawyers have become entitlement driven and mainly interested in furthering their own needs, meet Steven. He exemplifies a generation of smart, energetic young lawyers who are passionate about using their legal skills to make a real difference in Steven Florendine their communities. And like so many of his peers, Steven’s commitment to volunteerism is driven by the simple realization that helping others is, as many before him have remarked, “the right thing to do”. Steven grew up in Calgary and completed his undergraduate studies at the University of Lethbridge where he met his wife (in a bar). His wife’s employment prospects brought Steven to Texas where he read law, obtained admission to the Texas State Bar and practised in Texas, Oklahoma and Montana. Steven returned to Lethbridge in 2007 and landed with the firm of Davidson & Williamson LLP where he practices today. Texas taught Steven an important lesson about what real poverty looks like – it’s the kind of poverty which traps people into a life of despair because those who need help the most cannot get the legal representation they so desperately need to find their way to a better future. Steven brought this lesson with him to Lethbridge where he resolved to do what he could for those who needed help. Lawyers who practise in rural communities as compared with those who practice in larger cities often have a better understanding of how they impact upon the fabric of their communities. It’s not easy to hide from those whom you’ve affected through your legal practice in a city the size of Lethbridge, Red Deer, Medicine Hat, or Grand Prairie when you’re likely to run into them at the grocery store, the baseball field, your kid’s school or the community bake sale. Rod Jerke (now the Honourable Mr. Justice R.A. Jerke) was an important influence in Steven’s approach to volunteerism. In Steven’s own words, “there are many folks who talk about living life the “right way” - Rod never speaks of living the right way – he just does it.” And so with Rod’s guidance and the backing of the partners, associates and staff at Davidson & Williamson LLP who have their own proud tradition of community volunteerism, Steven set out to make a difference. Since 2008, Steven has actively volunteered with Lethbridge Legal Guidance (on whose Board of Directors he now sits) by providing free legal advice at clinics which are organized throughout the year for anyone who has a legal issue irrespective of their

10 | Law Matters

financial means. In 2012, Steven was approached to volunteer for the Lethbridge Legal Grounds Clinic which provides the public with free legal advice. He committed his support and inquired if he could solicit the services of the rest of his law firm to assist with this project. He was successful in securing assistance from most of his fellow lawyers along with administrative staff. Steven and his firm followed up with a Legal Grounds Clinic which was held this fall in the Crowsnest Pass. Steven remains committed to providing free legal services for smaller communities in Southern Alberta which are in need of legal advice clinics. Steven is still in the early stages of his career but the leadership which he has shown in making a real difference to his community is likely to endure. The volunteer work which Steven and his colleagues have undertaken is critically important because it is much more difficult for those living in smaller centers or in rural areas to find a lawyer as compared with larger urban centers. Steven’s commitment to serving his community should remind us how powerful we can all be in changing the lives of those who could use a helping hand. We celebrate Steven’s achievements – Steven is an “unsung hero” – and he represents some of the finest qualities of our profession.

Do you know an Unsung Hero? Tell us about them. If you know a lawyer who deserves to be recognized, please send us an e-mail to newslet@cba-alberta.org with the lawyer’s name and the reasons why you believe they are an “unsung hero”. The only formal requirements for nomination are that our “unsung hero” be an Alberta lawyer and CBA member. D

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AFTER THE LOVING By Joe Bradford Mr. Joe Bradford is CNOOC Canada Inc.’s Vice President, Joint Ventures & Legal. At 8:30 a.m., on November 28, 2011, I walked into the Petroleum Club in Calgary to have breakfast with the other members of the OPTI Canada Inc. (“OPTI”) executive team. It was a strange breakfast because a few hours earlier we had concluded the sale of OPTI to CNOOC Limited. It sunk in at breakfast that, in fact, I was the only person at the breakfast table that was still an executive of OPTI. Quickly, these individuals who had shared many exciting and challenging times with me at OPTI were gone. Together, we Joe Bradford had undertaken a complex dual track acquisition/recapitalization program to address the financial situation of the company and due to the very hard work of many people, CNOOC successfully acquired OPTI. At 8:30 p.m., on November 29, 2011, I was having dinner with my new fellow executives from CNOOC Limited.

At OPTI we struggled to keep up with oil sands projects that are capital intensive, technically challenging and require a long-term vision. CNOOC brought significant financial and technical strength to our company. For example, with our partner Nexen Inc., we were able to approve a significant expansion at our Long Lake project. The influx of talent and funding, combined with CNOOC’s dedication to the joint venture, has created opportunities that were just not possible under OPTI. In short, CNOOC is committing the necessary human and financial capital to realize success in oil sands development. As in-house counsel for the corporation, this experience has reminded me of the need to be very flexible in the way I deliver legal services to the corporation. Acquisitions of corporations, especially by nonCanadian based corporations, will change the manner and types of services performed by in-house counsel. One of the great benefits of this change is the opportunity to work with my fellow lawyers in our head office in Beijing. This truly broadens my appreciation for the differences and similarities of legal practices in the international context. The one thing that never changes is the need to provide timely and accurate legal advice to the corporation, both before and after the loving. D

When it comes to acquisitions, there is a lot of legal information about how these transactions are structured and executed and about the closing events, which rightfully celebrate the completed transaction. But there isn’t as much written from the perspective of in-house counsel about the time after the loving, after the celebrations are over. This is my brief story about in-house life after the acquisition, after the loving. In the months after the acquisition, we changed our name to CNOOC Canada Inc. and began fusing the different but complementary cultures of CNOOC Limited and CNOOC Canada Inc. We transformed our corporate operations to become part of the CNOOC group of companies. As a CNOOC company, we seek advice from other CNOOC entities regarding significant undertakings. I learned that our requests for input were being considered from an investment, marketing, finance and commercial point of view. CNOOC’s decision-making process differs from the more traditional, linear decision-making process we used as a smaller publicly traded corporation. In contrast, CNOOC takes a broader, consensual approach toward high-level corporate decision-making. We’ve adapted our practices by increasing timelines to accommodate these review procedures. Concurrently, we make ourselves available to all reviewing departments to answer any questions or offer assistance to help advance this review process. Due to the language and cultural differences between our Canadian and Chinese offices, we take extra care to ensure that nothing is lost or misinterpreted in translation. We have benefited significantly from the input of various CNOOC offices around the world prior to making our local business decisions.

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Budgeting is another cultural business difference. With many projects it is an accepted practice that actual expenditures will vary significantly from budgets. Within the CNOOC group of companies, there is a strong emphasis on detailed planning when preparing a budget, followed by dedicated adherence to the budget. We continue to work closely with our counterparts in CNOOC to apply this budgetary approach to our Canadian assets. Law Matters | 11


FR O N T & C EN TRE The CBA hosted a Welcome Reception for law students at the University of Calgary in September.

L to R: Marian V. De Souza, Law student

Law students attending learned about the CBA

L to R: Marian V. De Souza, Melissa Morrison

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Meeting with members of the Medicine Hat Bar to discuss our Small Communities Initiative. Read more on Page 3...

L to R: Cyril S. Gurevitch, QC, Maureen Armitage, Catherine Regier, Dean Ian Holloway

The CBA hosted a Mentor Reception for law students and volunteer mentors at the CBA South office in October.

L to R: Mary Kampman, Melissa Morrison

12 | Law Matters

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CBA Council approved the creation of an Access to Justice Committee in September. Read more on Page 3...

Steven N. Mandziuk, QC presents the 2013 budget

...

L to R: Cyril S. Gurevitch, QC, Jeffrey D. Wise, QC

L to R: Past Presidents Michele Hollins, QC, Lucille Birkett, QC

PBLA hosted a Legal Grounds Advice Clinic in Calgary on October 17. Read more on Page 19...

Norton Rose Canada LLP volunteer team of lawyers, paralegals, legal assistants and articling students

Members of the Edmonton Bar participated in a musical comedy to fundraise for the local theatre community.

Law Matters | 13


CCCA Family Status Accommodation: Practical Tips for In-House Counsel By Bev Cline Both the nature and scope of the duty to accommodate family status are rapidly evolving. Here are some practical tips for inhouse counsel for managing family status accommodation requests:

• Employers should provide plenty of notice, if possible, when making changes in the workplace. “Give employees as much notice as feasible, with plenty of detail, of proposed changes in hours, location etc.,” says Headon. “This is fair to both employer and employee and will, at a minimum, give both you, as employer, and the employee, a chance to find ways to manage the proposed changes.”

• Understand this is an evolving area of the law. Family status discrimination “is both a rapidly developing and unsettled area of human rights law,” points out Bev Cline Michael Wagner, Partner, Roper Greyell LLP, in Vancouver. “The jurisprudence in establishing family status discrimination differs federally and provincially.” • The case law in the area in Canada is divided. In-house counsel — especially those in multi-jurisdictional companies — “will have to examine the jurisprudence applicable in each jurisdiction,” says Lewis Gottheil, Counsel, CAW-Canada, “until there is more direction resolving these issues.” • Be prepared that more requests are likely. “Current demographics mean employers are increasingly being called upon to accommodate the family status of their employees,” says Wagner. • Document every step of the process. “Be rigorous and document the process whereby you evaluated the request,” says Fred Headon, Senior Counsel, Labour and Employment Law, Air Canada. “Courts and tribunals have found fault with employers who are not thorough on the process. A thorough documentation process will help you to either find the solution or give you the defence should you be challenged.” • Treat these requests as more than a legal issue. Whether it is a request from an employee needing to take an aging parent to the doctor on a regular basis, or a conflict with after school/day care schedules and workplace hours, family status accommodation issues “are not only a human rights issue, but a human resource issue, in terms of recruitment and retention,” says Philippe Dufresne, General Counsel, Litigation Services, Canadian Human Rights Commission. “If possible, enlist the participation of the human resource department.”

• Understand the need for accommodation can be driven by changes from either the employer or the employee. “Most often, conversations about family status accommodation requests center on employer changes,” says Gottheil. But the requirement to examine accommodation “can be triggered from both perspectives, whether it is the employer that makes the change, or whether the employer makes no change and it is the worker’s circumstances that have changed.” • Be wary of a knee jerk response by either the employee or employer. Provide individual assessment, and be open-minded about the request, says Dufresne. “Invite, explore and consider reasonable alternatives, remembering that the employee may have the obligation to accept an accommodation, even if it is not his or her preferred solution,” he says. • Analyse risk. “From a pure risk management standpoint, leaving aside good will in employee relations, if there is uncertainty in the case law, follow the interpretation that is more generous,” says Dufresne. For more articles of interest to in-house counsel, please visit the CCCA Knowledge Center at www.ccca-accje.org. D

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CHOOSE FROM CANADA’S TOP MEDIATORS AND ARBITRATORS We are pleased to announce that Vaughan Hembroff, has joined ADR Chambers, and is available to conduct mediations and arbitrations throughout Alberta. Mr. Hembroff provides expertise for a wide variety of employment, estates & trusts, insurance, personal injury, municipal matters and real estate disputes. For 20 years he sat as a Justice of the Court of Queen’s Bench. He also sat as an ex officio Member of the Court of Appeal Alberta, as a Deputy Judge of the Supreme Court of the Northwest Territories and as a Deputy Judge of the Nunavut Court of Justice. He has experience and knows how to bring matters to successful resolution.

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14 | Law Matters

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Alberta Branch News ALC 2013: JANUARY 31-FEBRUARY 1

NEW STRATEGIC PLAN

Committee Chairs, Karen Platten, QC, and Jeremiah Kowalchuk are leading the way to an excellent convention to be held in Edmonton on January 31 and February 1, 2013 at the Hotel Macdonald.

CBA Council approved a new Strategic Plan in August 2012. The Alberta Branch will be developing a strategic plan that is aligned with the national plan and tailored for our members.

Schedule at a Glance

The key priorities of the national plan are:

Thursday, January 31, 2013

Influence and Leadership CBA is recognized as the national and international voice of Canadian lawyers on matters of law and justice, and the advocate for the interests of its members and the legal profession.

Morning Law Society of Alberta Plenary Lunch Guest Speakers: The Honourable Jonathan Denis, QC, Alberta Minister of Justice and Solicitor General Robert Brun, QC, National CBA President Afternoon Panels: Insurance Law, Social Media/Privacy, Solicitors’ Shorts

Community CBA has a strong, diverse, engaged membership which reflects all sectors of the legal profession and is the community of choice for lawyers. Education CBA is a leader in professional development and ensures access to timely, high quality, relevant and affordable PD, delivered in convenient and accessible formats.

Friday, February 1, 2013

Cohesion Legal profession, members and staff experience and understand the CBA as one cohesive association, operating both nationally and locally for all of its constituents to effectively deliver products and services that provide demonstrable value.

Morning Presentation: Generational Difference Among Lawyers Speaker: Bonnie Bokenfohr, Field Law

Organizational Excellence CBA is a strong, stable, innovative, forward-looking and technologically advanced organization that is led by outstanding volunteers and staff.

Panels: Barristers’ Briefs, Corporate/Commercial, Family Law, Junior Lawyers

CBA Vision CBA is the essential ally and advocate of the legal profession and a guardian of the rule of law in Canada. CBA members are passionate about their Association and the good it does in their lives, and the world. Staff and volunteers are inspired to exceed the expectations of members every day.

Evening Exhibitors’ Reception

Lunch Distinguished Service Awards Afternoon Panels: Advanced Advocacy, Labour/Employment, Wills, Law Students

BRANCH TO LAUNCH DESIRE 2 LEARN Evening Dinner and Entertainment Preparations continue for the 2013 Alberta Law Conference. A brochure and registration form is included with your Law Matters.

CBA Alberta will expand its offering of webcast services in the new year to include North and South sections. Currently, CBA members outside of Calgary may opt for webcast membership in 15 different South sections. Recordings of past Section meetings are available to Section members for viewing online.

Register now! The Branch is coordinating the launch of Desire 2 Learn Capture, a webcast platform we’ll use to capture Section meetings and present them to CBA members in a rich-media forum. CBA members will have access to webcasts consisting of video, slides, screen and peripheral sharing. Webcasts will be accessible from a Mac or PC OS. Note: Edmonton CBA members must be registered as a full member in the coinciding North Section in order to join the South webcasts.

2012 Alberta Law Conference

Refer to the 2012-2013 Section Handbook available at www.cba.org/alberta for detailed information on sections offered by the Alberta Branch. Law Matters | 15


CBA National News THE CBA’S INQUIRY INTO THE FUTURE OF LEGAL PRACTICE By Fred Headon Fred Headon is first vice-president of the CBA and represents the executive on the Futures Inquiry. A 21st-century doctor’s office bears little resemblance to its 19th-century counterpart, but the same cannot be said of the 21stcentury law firm (with the exception, of course, of women practitioners and electronic devices). There is a sense that the legal profession is madly treading water, concerned it may be approaching a waterfall, while other professions are gamely swimming for shore.

around it. The best way to predict the future is to invent it. But if lawyers don’t invent the future of their own profession, others, who may lack the requisite training in law and justice, will. I hope you will participate in the inquiry’s consultations and watch for its report.

NEW ONLINE HOME FOR NATIONAL MAGAZINE

The CBA has launched an initiative aimed at helping the profession navigate these waters and emerge better-equipped to meet the challenges ahead. The CBA’s Inquiry into the Future of Legal Practice speaks directly to CBA members and the challenges they face as rapid changes in Canadian society affect both the delivery of legal services and the expectation of clients. The CBA, as the only national voice of the Canadian legal profession, is doing its part by helping its members understand the source, meaning, and implications of those changes.

With a quick click of the mouse, you can now fully enjoy National magazine online! The magazine’s all-new website complements the print edition, offering thought-provoking videos, blogs, and up-to-date stories on the latest legal news and trends. It’s searchable, easy to browse, and interactive. Check it out at www.nationalmagazine.ca.

Starting with a comprehensive analysis of where we stand, the inquiry will focus on the future market for legal services and the work of practising lawyers, both in-house and in private firms. The inquiry will examine the economic, demographic, social, legal and technological factors that will affect the market for legal services in 2020 and beyond. We already know that in a “more-for-less,” technology-driven information age, lawyers face unprecedented pressures – to lower costs, to commoditize, to liberalize, and to embrace the changes technology offers. At the same time, the problems we are often called on to help address are increasingly complex.

TAX IMPLICATIONS OF CHARITABLE GIVING At an October 3 appearance before the House of Commons Standing Committee on Finance, Peter Broder of Edmonton, Chair of the Charities and Not-for-Profit Law Section, welcomed new measures designed to foster charitable donations and expressed support for streamlining of regulations to reduce the administrative burden on registered charities and other qualified donees.

Our clients are dealing with other professionals who have found other ways to provide services – and some of them are providing things that were traditionally the purview of lawyers. Being familiar with how those professionals package their services in turn changes what is expected of others they deal with, including lawyers. For that reason, the inquiry will also look at the likely shifts in the services that clients seek, how they want them delivered, and what we can learn from other professions.

Read the CBA’s January 2012 submission to the committee: www.cba.org/CBA/submissions/pdf/12-02-eng.pdf

Prof. Richard Susskind, who has written extensively on the future of the legal profession, will be a special adviser to the inquiry team, which will be made up of lawyers, regulators, legal academics, consumers, and judges.

INTERNATIONAL DEVELOPMENT: LEGAL AID PROJECT IN CHINA UP AND RUNNING

The team will gather and analyze the information, consult with lawyers and their clients, make recommendations, and develop tools and resources to help lawyers, judges, teachers, and regulators make the most of the opportunities before us. The analysis will include guidance for the training, education and regulation of lawyers.

The CBA’s new project in China, Rule of Law: Legal Aid for Marginalized Groups, is now in full swing. Canadian lawyers are providing expert assistance to existing legal aid programs in three Chinese provinces – Yunnan, Jilin and Liaoning – to improve their service to marginalized communities, particularly ethnic minorities and migrant workers.

There remains a fundamental role for legal services in Canadian society. But the legal profession must be responsive to the changes taking place

Funded by the Canadian International Development Agency (CIDA), the CBA has partnered with Legal Aid Ontario and Community Legal Education Ontario for the project, which runs until December 2013. More on CBA international development initiatives:

CBA on Facebook, LinkedIn, & Twitter! www.cba.org/CBA/IDP/InterDev/

The CBA is on Facebook! Become a fan by “liking” our page and keep us in your newsfeed: www.facebook.com/CanadianBarAssociation. And be sure to follow us on Twitter @CBA_News, and LinkedIn at www.linkedin.com/company/canadian-bar-association. 16 | Law Matters


Opening Doors: Removing Barriers of Access to Legal Education By Jennifer Flynn, Managing Director, Legal Education Society of Alberta

Creating opportunities for legal education. That's what we do at LESA and it's a duty we take very seriously. We have a fundamental belief in the importance of access to legal education. We feel it is our responsibility to remove barriers, wherever we can, to serve this great community of ours. We try to remove these barriers in a number of different ways.

As always, we would like to thank those who volunteer their time, talent, and energy in support of our activities. We would also like to thank those firms and individuals who support us by paying to attend our programs and purchasing our educational resources. When you do so, you are doing more than investing in your own continuing professional development: you are helping to ensure the sustainability of not-forprofit continuing legal education and to strengthen the Alberta legal community as a whole. It matters, and we thank you. If you would like more information about our bursary programs, please feel free to contact our office at 780-420-1987 or lesa@lesa.org. We really are here to help. D

Jennifer Flynn

First, we recognize that Alberta is a huge province; not everyone is practicing in the Calgary-Edmonton corridor. Therefore, we offer access bursaries for many of our seminars, providing a reduction in fees for those who have to travel long distances. These reductions are intended to help offset travel costs. On eligible programs, we will reduce your registration fee by 25% if you live more than 125 km from the seminar site, or 50% if you live more than 250 km away. We also recognize that finances are tight for many law students and students-at-law. We offer a 25% reduction in seminar registration fees for students on many of our seminars. We hope to encourage them to engage in continuing legal education as a way to further their learning and understanding of law and practice. Third, we offer access bursaries based on need for seminars and educational resources. While we need to recover our costs to remain financially viable, we hope not to turn people away because of financial restrictions. We understand that the landscape of legal practice is changing and the cost of living and practicing is high. If you feel you need some help in order to access continuing legal education, please contact us. Please trust that any requests are held in the strictest of confidence. To balance our organizational goals of accessibility, quality, and sustainability, a limited number of bursaries are available—but we do our very best to help whenever we can. Our commitment to these bursary programs saw us give back more than $80,000 last year alone. These dollars created opportunities to access continuing legal education, and we're so glad to have been able to help. We believe deeply in the value of lawyer competence and confidence; these bursaries help to ensure that everyone in the legal profession, regardless of circumstance, has access to our offerings. But our commitment doesn't stop there. We offer ethics papers on our website at no cost, as well as complimentary online courses. Our online classroom includes self-study modules on subjects like the Code of Conduct and Trust Accounting. It also includes a self-study course on dealing with a distressed individual, produced together with the Alberta Lawyers’ Assistance Society (ASSIST). Bear in mind that we offer other opportunities to learn and grow— without direct financial cost. Either as a volunteer, or as someone in another special capacity to extend the reach of legal information, you can reap the benefits of some tremendous learning opportunities. Please contact us for details.

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Law Matters | 17


The New Rules of Courting How to Attract the Best Associates By Ed Picard

(Part 1 of 2)

Rule 2: Know what you’re looking for A shift towards lateral movement within the legal profession has transformed the modern legal landscape into a dating game. In a market characterized by diminishing talent pools and high turnover rates, skilled candidates can play the field in order to find the firm environment best suited to develop their careers. In other words, talented associates are chiefly concerned with distinguishing ‘Mr. Right’ from ‘Mr. Right Now.’

Ed Picard

Firms, meanwhile, seek to woo that special someone; a dependable, loyal associate who will someday take the plunge and join them in a meaningful, long-term partnership. All too often, these suitors are dismayed to find that candidates will spurn their initial affections, or worse, engage in the briefest of romances, only to leave for the competition once the honeymoon is over.

How well do you know your firm’s immediate and future needs? What sort of candidate will thrive at your firm? Before searching for an elusive puzzle piece, you must have a solid idea of its particular shape and how it will fit into the bigger picture. Before searching for an ideal candidate, be sure that you first set out your firm’s goals for the next five or more years, and define the role that your candidate will be expected to play in achieving those goals. Selecting the wrong piece for the puzzle, or hiring the wrong candidate for your firm’s needs, will waste valuable time and resources. It’s important to note that not every candidate will be a perfect fit to your firm, even if he or she possesses an ideal skill set. Your firm’s culture, work style, mentorship, clientele, workflow system, technology infrastructure and training process are all factors which can significantly affect the candidate’s compatibility with your firm’s work environment. Plan your recruiting strategy with these factors in mind; don’t waste your time and effort on candidates whose experience and underlying character traits are unlikely to fit the unique dimensions of your firm. Rule 3: Know how to look effectively

Enter the executive matchmaker. Legal recruiters provide our clients with a unique perspective in the hiring and management process, offering insights gleaned from ongoing candidate interviews and a long history of successful relationship building within firms. Experience has taught us that firms which apply the following strategies will be better equipped to attract top candidates, avoid the heartbreak of talent attrition, and hold onto the associates they cherish: Rule 1: Know thyself / Look in the mirror How well do you know your firm’s strengths and weaknesses? What is its reputation in the market? Prospective associates are highly attuned to the word on the street. While your firm may see itself as an employer of choice, its management decisions may paint a different picture to prospective candidates. To prevent this disconnect and ensure that your firm is desirable to the kind of candidates who will drive future success, take the time needed to thoroughly assess your firm’s employment practices. Identifying your firm’s approach to employee recognition, performance, promotion, motivation, accountability, retention, and succession planning will be a critical first step in ensuring that your firm’s image is an accurate reflection of its culture, values, and goals. Your firm may wish to enlist the aid of recruitment or management consultants in order to present a consistent message and maintain a positive presence in the marketplace.

How well does your firm draw in high-powered candidates? To attract the best professionals, professionalize your recruitment methods. It’s no secret that the top of the talent pool are already employed somewhere else. Legal recruiters add value to the recruitment process by knowing which superstars in the field are inclined to make a career transition and approaching them at the right moment to promote new opportunities. Similarly, firms can improve their own recruitment methods by thinking like a recruiter and canvassing the market in an organized, targeted fashion. Networking at conferences, events, online, and within professional organizations is a good start. Developing strong relationships with professional recruitment agencies and university placement officers will ensure a steady flow of talent to your doorstep. Last but not least, actively involve your firm’s existing associates in the recruitment process. Perceptive associates will be able to approach like-minded colleagues who will be an excellent fit to your organization. Once your firm has begun to attract skilled talent, retaining these associates becomes the next challenge. How do you keep the ones you love? Find out in Part II. D Ed Picard is a Recruitment Consultant with The Counsel Network® and can be reached for comment at epicard@thecounselnetwork.com

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Fall Back to Pro Bono! Pro Bono Law Alberta Projects and Activities By Gillian Marriott, QC Fresh Coffee, Free Legal Advice – Legal Grounds Advice Clinic

Gillian Marriott, QC

‘Fresh coffee, free legal advice’ is the slogan of an innovative and unique new program that Pro Bono Law Alberta has developed to involve lawyers in pro bono service delivery. The goal of the Legal Grounds Advice Clinic is to provide free legal advice and information to individuals in a friendly, approachable environment over a free cup of coffee.

PBLA has been involved in four Legal Advice Clinics in the past year. The first event was held in partnership with Calgary Public Library, CBA - Alberta, Calgary Legal Guidance and Norton Rose Canada in October 2011 at which 103 people received free legal advice from volunteer lawyers. The second event, in collaboration with Lethbridge Legal Guidance, took place on Law Day, April 28, 2012. 106 people from the community received free legal advice and information provided by volunteer lawyers from Davidson & Williams LLP, Shapiro Law and North and Company LLP. A third Legal Grounds Advice Clinic event took place in the Crowsnest Pass in the community of Blairmore on September 29, 2012. PBLA once again collaborated with Lethbridge Legal Guidance in planning this event and volunteer lawyers from Davidson & Williams LLP in Lethbridge gave their time to be part of this legal clinic.

Meeting for Managing Partners of Edmonton Law Firms As part of its mandate to inform Managing Partners of law firms in Alberta as to its activities and projects, PBLA hosted its annual Managing Partners’ Meeting on October 15, 2012 in Edmonton. Guest speakers included The Honourable Mr. Justice RA Jerke and The Honourable Judge JL Skitsko. The meeting was an opportunity to discuss upcoming projects and also to encourage new firms to join the growing Civil Claims Duty Counsel (CCDC) project. Engaging Firms in Civil Claims Duty Counsel (CCDC) The CCDC Project is an overwhelming success thanks to the volunteer efforts of the lawyers and law students involved in the project. The support of the law firms and their encouragement of the lawyers volunteering has been instrumental. Currently nine firms in Edmonton, and nine firms in Calgary are involved.The CCDC project recently completed its first full year in Calgary and has expanded to four full days a week. In Edmonton, the project operated three half days per week with the goal to expand as more firms join the program. If you or your law firm are interested in joining the CCDC Project, please contact the PBLA office at 403-541-4804. Volunteer Lawyer Services – Get on Board There are many ways to become involved in pro bono legal service. The Volunteer Lawyers Service (VLS) continues to be an option for lawyers who want to assist in a way that fits with their schedule and scope of expertise. Call VLS at 403-541-4803 to find out how you can join this service. D

The fourth Legal Grounds Advice Clinic took place in Calgary on October 17, 2012. Norton Rose Canada LLP provided a team of volunteer lawyers, paralegals, legal assistants and articling students for the Legal Grounds Advice Clinic. 86 people booked appointments prior to the event and 23 registered as ‘walk-in’ clients. Although Legal Grounds had the capacity to assist at least 109 people, some clients were not able to attend their appointment. In total 95 individuals received free legal advice from the lawyers. Rob Rakochey, Partner at Norton Rose Canada: “I just wanted to give my personal thanks, and that of Norton Rose as a whole, on the outstanding pro bono service that we all provided yesterday at the clinic. I could see on the faces of these clients, and from the comments that I received and overheard, how appreciative they were for the opportunity to get some advice from us on their issues. As we all experienced, we did not always have the full answers that they needed, and often what they thought was their legal issue was something entirely different, but we listened, provided answers and assistance, helped them to understand and clarify their true questions and concerns, and where required referred them to the resources that are available to help them move forward. I was very proud of our firm yesterday. We did a really good thing.” We are very excited to announce that a fifth Legal Grounds Advice Clinic will take place in Medicine Hat thanks to the tremendous support of the Medicine Hat Bar. PBLA will work in collaboration with Lethbridge Legal Guidance and members of the local bar to host this event on November 24, 2012. Law Matters | 19


c ro s s - s e c t i o n

From the desk of Karen McDougall

We are excited to again be up and running on the sections front. The fall workshop for executive members has been held, first meetings have been planned and are being held and all sections are successfully jumping into the new season. On behalf of my cosection coordinator, Jeremiah Kowalchuk, and me – welcome back!

Karen McDougall

One topic that wasn’t discussed much at the fall workshop is executive succession planning. Although it doesn’t happen often, it seems that the sections that don’t endure are those without strong executive support. Obviously, without those willing to lead, a section won’t survive. Granted, it is early in the CBA season; but why not start thinking about next year? Executive members can begin canvassing section members about getting involved on the executive next year. Section chairs, begin thinking early about whether you are prepared to lead for another year and, if not, who might be willing and able to step up in your place.

A section success story is the Women Lawyers Forum, headed up by two new co-chairs, Sharon Au and Tinashe Mtshiya. They are supported and mentored by a large team, including Tracy Brown, Ingrid Meier, Jennifer Burns, Karin Buss and Sandra Petersson. Members of the WLF were recently treated to a presentation on the Justicia Project by Jocelyn Frazer, the Law Society’s Equity Ombudsperson and Acting Practice Advisor. That project, of course, is a Law Society initiative Jeremiah Kowalchuk

Assist

looking at issues surrounding the retention and re-engagement of lawyers in private practice. The WLF is continuing its momentum with a special event on Friday, November 23rd 4:30 – 6:30 p.m., to be held in conjunction with the national WLF section. Linda Robertson, lawyer coach and vice-chair of the national section will present on AnneMarie Slaughter’s article “Why Women Still Can’t Have it All”. Other topics for the new year will involve speakers on different leadership roles for women in the profession, a mentoring session involving “candid conversations” with senior women lawyers, and a volunteer night with the Soup Sisters. On a different note, I’d like to plug the fantastic CBA-Alberta website. Visit www.cba.org/alberta for information on your executive, or to find out when your meetings are to be held. Simply click on your section name and follow the links. All materials from section meetings are archived. You can also access the video recorded speakers’ presentations. Clicking on the link to “Upcoming Events” will put you into a calendar of the month’s scheduled meetings for all sections, including those in the south. The first of two Inns of Court evenings will take place during the 3rd week of November. This event is sponsored by the CBA, the Junior Lawyers north section and the Edmonton Bar Association. An evening at the Inns of Court offers you a unique and valuable opportunity to dine and discuss legal issues with a member of the bench or a senior member of the bar. Space is limited, and preference is given to those at the bar five years or less. Please direct section-related questions or comments to Jeremiah Kowalchuk, Heather Walsh, or me. The same goes for any meeting information for your section that you might want us to plug in this space. In the meantime, have a great fall. D

By Marian V. De Souza, Executive Director Lawyers Helping Lawyers -- Top 10 Considerations When Referring Someone to Help.

I worked for several years as in-house counsel helping develop title insurance in western Canada. When I joined Assist (Alberta Lawyers’ Assistance Society), an organization whose purpose is to help lawyers with personal problems, a colleague commented, (tonguein-cheek) that I would still be providing lawyers something they think they don’t need. Marian V. De Souza As Executive Director of Assist, it has been my experience that lawyers are increasingly aware of the importance of seeking help for personal problems and before they turn into crisis. Assist has been focused on increasing awareness in the hope that every lawyer knows there are free, professional and confidential services available to those in need of help for personal and professional issues. The ongoing work involves ensuring that we are doing everything possible to help remove stigma associated with physical and mental health issues. What distinguishes Assist from other employee assistance programs is that we are lawyers helping lawyers. In addition to professional counselling, lawyer assistance programs across Canada provide peer support: the ability to offer a lawyer seeking help, support from a lawyer who has a particular understanding of the person or situation.

Time and time again, I have seen the power of peer support help with a mental condition, a medical diagnosis, dealing with a career transition, relationship or family conflict, addiction, or adapting to pressures of home and work. Peer support eliminates isolation and provides an individual with hope and encouragement. Within a non-judgmental, collegial relationship, the person seeking help is empowered to develop skills and access resources to overcome the problem at hand. Often, I am asked whether lawyers, compared to other professions are a) more stressed, b) have more career challenges, or c) have particular idiosyncrasies leading to more personal problems. Research shows that all of these factors can lead to more incidents of problems for the lawyer population. A possible compounding factor is the need to maintain a professional image of competence, while meeting challenging responsibilities as lawyers. It is important that we do everything we can to ensure the culture of our legal profession is amenable to lawyers seeking help for personal problems, when needed. Lawyer assistance programs across Canada, along with the national Legal Profession Assistance Conference of the Canadian Bar Association are taking steps to raise awareness of the importance of health and wellness for lawyers and of the programs and services available. Engagement events, communication and education initiatives are designed to bring the profession together to help talk about issues relating to personal wellness. I encourage you and your firm to support these initiatives. More importantly, as lawyers helping lawyers, we can each play a significant role, by encouraging a lawyer to seek help, if needed. Whether it is an initial referral to support or ongoing peer support, here are suggestions to consider when offering support to a lawyer in distress: -

Republished with permission of SLAW at www.slaw.ca 20 | Law Matters

N O RT H

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c ro s s - s e c t i o n

From the desk of Curtis Serra

Welcome back to the section lunch seminar season after a wonderful summer. Once again thank you to the volunteers for their time and efforts as section chairs and executive members. Another big thank you as well to the lunch seminar guest speakers, whose time and efforts make our sessions so invaluable for all members.

Melissa Morrison

It is shaping up to be a very active fall, with great attendance across the board for all sections. If you haven’t already, sign up now for your section meetings to ensure you don’t miss out on any upcoming sessions. We have a lot of initiatives and activities for this fall season.

Curtis Serra

We are pleased to announce we have a new section called “Managing Partners” which we are excited about. The section will be a resource, support and networking opportunity with a focus on topics that come up on a day to day basis within firms that are approached differently by all firms. Compensation models, expenses, conflicts systems, maternity leave, part-time lawyers, virtual offices, management styles

S O U TH

and systems, time spent on management vs. practice and sabbatical policies are all issues that managing partners can use the experience and wisdom of others as to what works and what doesn’t. There is a Wills & Trusts Dinner being held on December 13, 2012, at the Petroleum Club with speaker Ian Hull. Any interested members are encouraged to attend. The Alberta Law Conference is in Edmonton at the Hotel Macdonald from January 31 – February 1, 2013. A brochure and registration form is included with your Law Matters. The CBA and University of Calgary Mentor program is still very successful, and thank you again to those lawyers who have participated in this program. In an effort to continuously improve our technical capability, the CBA has been working on a new system for doing live webcasts during our section lunch seminars, which we hope to have up and running in the new year. Read more on page 15. Looking forward to another great year at the CBA! D

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1. For lawyers or articling students, the legal profession’s Code of Conduct may bear upon the situation. Familiarize yourself with responsibilities under your Code of Conduct. While reporting obligations are limited (especially when you are trying to help another lawyer seek help), if concerns about ethical obligations under the Code, cause you to hesitate to reach out to a colleague, make a confidential call to Assist to work it through. 2. Consider the distressed person may be: Scared Embarrassed Ashamed Denying or ignoring the issue Feeling isolated Unaware of changes in their own behavior, or Confused and does not know what to do or who to talk to.

individual is in severe distress, a planned intervention involving professional help, colleagues, peers, family members, or others may be warranted. The professionals at Assist can help you and other concerned parties make that determination. 9. If an individual is threatening harm to themselves or others, call 911. 10. Keep brochures or information about assistance programs on hand. If you are part of management in the firm, consider including references to the lawyer assistance program in your employee orientation manual. The fact that you took the time to read this article means that you care about the profession and your colleagues. Supporting a peer is a simple act of human kindness. The reward is a stronger profession for everyone. To obtain more information, call Assist at 1 877 737 5508 or visit www.albertalawyersassist.ca or find a 10-minute module on the topic at www.lesaonline.org/register/onlinecoures.org. D

3. You are not alone when reaching out to help someone else. Call Assist and receive advice and coaching on dealing with a distressed friend, colleague, or family member. ASSIST’s Mission 4. Assess how you are feeling. It may not be the time to reach out to help someone else if you are in the middle of a work or personal crisis yourself. 5. Free yourself of any judgments, assessments, or diagnoses you may have and enter the interaction as a compassionate observer. 6. Be clear about the goals of your conversation. Is it about expressing concern and encouraging the person to seek help? 7. Be clear about your role. Typically, you will want to be there to express concern and be a catalyst. You are not a medical professional and are not there to “save” someone. 8. If initial prompting to seek help has been unsuccessful and an

Providing confidential help to lawyers, law students and their immediate families with personal issues. Note: Check out Assist In Your Community at www.albertalawyersassist.ca. It is our quarterly publication, designed to keep you up to date on what Assist is accomplishing, as well as share health tips and information of interest to lawyers in Alberta. If you would like to receive an electronic copy of Assist In Your Community in the future, please send an email to cmccartney@lawyersassist.ca. Law Matters | 21


USAs, Life Insurance, and Capital Dividends By Chad J. Brown, Felesky Flynn LLP The owners of shares of an operating corporation frequently enlist their corporate counsel for the purpose of drafting a Unanimous Shareholders Agreement (a “USA”). A USA is a multi-party agreement among all the shareholders of a corporation that, among other things, sets out the “rules of engagement” with regards to the ownership of the shares of the corporation in the event of the death of one of the shareholders. Chad J. Brown

A life Insurance policy (a “Policy”) is a contract between the insurance policy holder and an insurer, where the insurer promises to pay fixed sum of money (the “Death Benefit”) to a designated beneficiary upon the death of the insured person. The capital dividend account (“CDA”) of a corporation is part of the system for integrating the income tax of private corporations and their shareholders and is intended to preserve the character of non-taxable receipts (e.g. the Death Benefit of life insurance policies and the nontaxable portion of capital gains) in the hands of its shareholders, whether those shareholders are corporations or individuals. Dividends received from a payor corporation’s CDA (i.e. capital dividends) are added to the CDA of the recipient corporation or, in the case of individuals resident in Canada, received as tax-free distributions from the payor corporation. Generally, where a corporation became a beneficiary under a Policy on or after June 28, 1982 and received the proceeds of the policy as a consequence of the death of the person whose life was insured, the net proceeds (i.e. the proceeds minus the adjusted cost basis of the policy) are included in the CDA of the recipient corporation. Thereafter, the net proceeds can be used to make tax-free distributions to shareholders, provided the proper election and director’s resolutions have been prepared and submitted to the CRA. In the context of USAs, it is important to note that there is no requirement that a corporation allocate the CDA addition from the net proceeds of a life insurance policy to any particular shareholder of the corporation, unless there is an agreement which provides otherwise. This principle was confirmed in the case of Ribeiro Estate v. Braun Nursery Ltd. (2009) 55 B.L.R. (4th) 115 (Ont. S.C.). In Ribeiro Estate, the deceased was a shareholder of a corporation that was the beneficiary of a Policy and therefore received a Death Benefit as a result of the death of the shareholder. The USA provided that the Death Benefit was to be used to repurchase the deceased’s shares. On the repurchase of the shares of the corporation from the estate, the corporation used the Death Benefit to repurchase the shares but did not agree to designate the resulting deemed dividend as a capital dividend which resulted in an income tax liability to the estate of approximately $250,000. The trustee for the estate brought an oppression action seeking to compel the corporation to designate the deemed dividend as a tax-free capital dividend, or in the alternative, seeking damages for the additional income tax paid. The Ontario Superior Court dismissed the application since the USA did not require the corporation to designate the deemed dividend as a capital dividend. The court found that, unless there is an agreement (e.g. USA) which provides otherwise, a corporation is under no obligation 22 | Law Matters

to use the CDA of the corporation in any particular manner. More specifically, the court found that where shares are repurchased using life insurance proceeds, there was no obligation to use the CDA in any particular manner under the Business Corporations Act. The Ribeiro decision illustrates that, assuming the shareholders would like their estates to receive a tax-free capital dividend on the repurchase of their shares in the event of death, it would be prudent to include a provision in the USA to require the corporation to designate any deemed dividend as a capital dividend when received in connection with the repurchase of shares from the estate. Note that the CDA may include other non-taxable receipts received by the corporation during its existence therefore the portion of the CDA to be utilized in connection with the repurchase of the shares from an estate should be the subject of negotiation by the shareholders and their counsel. Lastly, when negotiating a value to use for the purposes of repurchasing the shares of the corporation from the estate of a deceased shareholder, the Death Benefit should generally not be included. One method of accomplishing this objective is to value the shares at a time that is immediately before the death of a shareholder under the terms of the USA. Failing to include such a provision will result in an increase in the value of the shares of the corporation to the extent of the Death Benefit received by the corporation, and perhaps confer an unanticipated benefit upon the Estate by virtue of its proportionate shareholdings. Thanks to K. John Fuller, CA, of Felesky Flynn LLP for his significant contribution to this article. For more tax tips feel free to follow me on twitter @tax_litigator and add me to your professional network on Linkedin. D


ADAPTING TO CHANGE ALRI Report on the Law of Joint Ventures Nigel Bankes, Professor of Law, The University of Calgary, and member of the board of the Alberta Law Reform Institute. In May 2012 the Alberta Law Reform Institute (ALRI or the Institute) issued its final report on Joint Ventures following up on a consultation memorandum issued in May 2011. The report seeks to clarify the legal status of the joint venture by providing joint venturers with a mechanism by which they Nigel Bankes can definitively take themselves out of the legal category of partnership. At the same time, the report clarifies the nature of the legal relationship between joint venturers and third parties. Thus, both the joint venturers themselves and third parties who deal with ventures stand to gain from the clarifications proposed by the Institute. In undertaking this work ALRI was breaking new ground since no other law reform agency in the common law world has examined the relationship between the law of joint ventures and partnership law. In this brief comment I will explain why ALRI took on this project and the way in which it went about developing its Final Report. I also explain in greater detail the two main elements of the Report outlined above. ALRI took on this project to remove the uncertainty as to whether a joint venture could exist without being a partnership. In modern commercial practice, parties create joint ventures for a wide variety of purposes including construction contracts and oil and gas and mining operations. In many cases the joint venture contracts make it clear that the parties do not intend to create a partnership and do not intend to establish a fiduciary relationship between themselves as joint venturers. Nevertheless, given that the Partnership Act RSA 2000, c. P-3 defines what a partnership is as a matter of law, there remains a concern that a court might categorize a joint venture as a partnership regardless of the intentions of the parties. The categorization of the joint venture relationship may also lead to uncertainty from the perspective of third parties dealing with the joint venture, especially when trying to establish the circumstances in which all of the joint venturers might be jointly and severally liable for the actions of one joint venturer.

by the simple expedient of declaring in writing in the relevant contract that their joint venture is not a partnership, provided that the parties carry out their joint venture under a name which includes the words “Joint Venture” or the abbreviation “JV”. There are thus two conditions to invoking the opt out: (1) the written declaration, and (2) the use of the proposed nomenclature. ALRI decided against recommending a set of default rules that would govern the terms of a joint venture as between the joint venturers. The Institute reasoned that parties frequently declare themselves to be something other than a partnership precisely to avoid the application of default rules. Consequently, the relationship between the parties in a “non-partnership joint venture” will be governed exclusively by the terms of their contract(s). The Institute did however believe that it was important to establish default rules to govern the manner in which the “non-partnership joint venture” relates to other parties in tort and contract. Thus, ALRI’s second recommendation provides that the parties to the “non-partnership joint venture” should be jointly and severally liable for all of the debts and obligations of the JV to a third party (unless a contract with that third party provides otherwise) and for all the wrongful acts or omissions of a joint venturer acting in the ordinary course of the business of the JV. While the Institute report does require the joint venturers to use that nomenclature in order to take advantage of this legal categorization, ALRI recommended against imposing a registration requirement thinking that the existing registration requirement in s.106 of the Partnership Act for some forms of partnership is largely a dead letter. The Government of Alberta has not provided any indication of how it intends to respond to the Institute’s recommendations. Copies of the Final Report (# 99) as well as the earlier consultation memorandum (# 14) are available on ALRI’s website at http://www.law.ualberta.ca/alri/ (follow the link to publications). D Contact: ndbankes@ucalgary.ca

ALRI’s first step in undertaking this project was to convene a small advisory group consisting of lawyers with great experience with joint venture to ascertain whether there was a legal and practical issue that merited a law reform proposal. The advisory group confirmed that there was an issue and as a result ALRI developed a consultation memorandum. Counsel for the project within ALRI was William (Bill) Hurlburt, QC, who is also a member of ALRI’s Board. Board member Doug Stollery, QC, of PCL Constructors Inc also took an active role providing valuable insights from his long involvement in all aspects of joint venture law within the construction industry and beyond. The consultation memorandum was broadly circulated and Bill Hurlburt, QC, Peter Lown, QC, and other board members reviewed the document with a number of organizations and CBA subsections. As noted above, the final report contains two main recommendations. In the first recommendation ALRI proposed legislation that would allow joint venturers to opt out of the rules prescribed by the Partnership Act Law Matters | 23


CELEBRATING 10 YEARS! CLERC-Calgary Bar’s Best Kept Secret By Carol Mackay, Director, Programs & Operations Recently, my client called me in a panic about her niece’s situation. The young woman, age 17 was pregnant, confused and scared as her abusive ex-boyfriend was threatening to get custody of the child. Could I help her? Well no, I’m a corporate lawyer I know nothing about Family Law and especially dealing with teenagers. I said I would get back to her as I had some idea there was an organization that might be able to assist her niece. I looked through the Legal Directory and found CLERC, the Children’s Legal and Educational Resource Centre. I gave them a call to find out whether they could help my client’s niece. A very reassuring voice on the other end of the line said; “Yes we can.” “What services does CLERC offer”, I asked? CLERC provides advice, information and representation to children and youth in civil law matters such as custody & access, landlord/tenant, employment, wills & estates, identification, guardianship, arranged marriages and support to pregnant & parenting youth. “That’s terrific! How could my client’s niece get a lawyer? Does it cost anything?” No, all of CLERC’s services are free of charge. Have her call us. There are multiple ways young people can contact CLERC to learn about our services. They can call directly at (403) 207-9029, email clerc@clerc-calgary.ca or go to CLERC’s website, www.youthlaw.ca, search questions and answers to specific topics as well as submit a question through CLERC’s “Ask a Lawyer” function. Professionals and parents can also call CLERC to explore how we may assist a child or youth. It is important to know that CLERC represents children and youth only, not a young person’s parents or other adults.

Many Judges and Justices in Calgary understand the importance of children and youth having a voice in high conflict custody and access situations. CLERC frequently receives orders to represent young people in these matters and has two senior lawyers, Dale Hensley, QC & Julie Hart who have over 20 years’ combined experience in the field. CLERC’s newest lawyer, Danielle Klemen specializes in representing youth in all other areas, particularly pregnant and parenting youth. CLERC works closely with many youth-serving agencies, schools, individual lawyers, students and volunteers to raise awareness about the legal rights and responsibilities of youth as well as the services CLERC offers. CLERC and lawyers from Borden Ladner Gervais LLP offer Legal Outreach for Youth (LOFY) & Affidavit Photo ID clinics in the community. Every October, CLERC hosts an annual fundraiser, the Artful Bench & Bar (ABB). 2012 marked the 7th annual ABB and CLERC’s 10th Anniversary. As a non-profit organization, CLERC relies on the support of funders, donors, and fundraising events to ensure our services continue to be free of charge to vulnerable children and youth in our community. Since receiving charitable status in 2002, CLERC has reached thousands of people through information, direct service, presentations, conferences and trainings. In 2012, CLERC has already increased its client base by almost 70% and will continue to grow in 2013 with the expansion of programs and new funding sources. 10 years has come and gone and CLERC is very grateful to have tremendous support from the legal community year after year. We hope you will share our secret so we can do bigger and better things in the next 10 years.

Cecilia Johnstone Award For Outstanding Service Contact CBA at mail@cba-alberta.org for more information The Outstanding Service Award recognizes exceptional involvement, dedication and service to the Alberta Branch of the Canadian Bar Association. Eligibility • • •

• • •

Any member of the Canadian Bar Association-Alberta Branch in good standing. Members of the Executive Committee of the Branch are not eligible for the Award. Past Presidents of the Branch are ineligible for the Award for a period of two years following the expiration of their term on the Executive Committee. No more than one award may be awarded in any one year. No award need be granted in any one year. There are no posthumous awards.

24 | Law Matters

Presentation The Award is normally presented at the Alberta Law Conference. Recipients of the award will be paid their travel expenses to attend the Awards presentation. Travel expenses will be paid in accordance with the existing policies and procedures of the Branch. Nomination procedure • •

The Executive Committee of the Branch or any member of the Provincial Council of the Branch may make nominations. Nominations shall be accompanied by a letter disclosing the nominee’s name, address, telephone number and a brief submission outlining the nominee’s suitability for the award. All supporting documentation shall be submitted to the Edmonton or Calgary offices of the Canadian Bar AssociationAlberta Branch by November 30.


2012-2013 Branch Volunteers CANADIAN BAR ASSOCIATION - ALBERTA BRANCH COMMITTEES AND CHAIRS COMMITTEE Administration of Justice

Communications

Editorial - Newsletter

Equity Law Day

MANDATE to review and coordinate CBA Alberta submissions and responses on Justice Initiatives and proposals as requested by the Branch or as identified by the committee To develop and consider branch communications initiatives and to provide advice to the executive committee and executive director on branch communications products and communication policies. to provide a relative and informative communications publication for all members of the legal profession in Alberta. To set topics, advertising policies and editorial standards for the publication in cooperation with the staff publications coordinator and the branch executive. to promote and implement Branch initiatives on equality issues. to organize Law Day activities in Edmonton/Calgary and other centres throughout the province in order to promote public awareness of the legal profession.

Legislation & Law Reform

to review and comment on bills introduced in the Alberta Legislature

Membership

to promote membership and member services. To develop and implement membership recruitment and retention initiatives in cooperation with the Branch executive director and staff membership coordinator to organize and promote the annual Branch C.L.E. conference and social events associated with same to promote public awareness and understanding of and respect for the Judicial system, through the development and implementation of branch initiatives.

2013 Alberta Law Conference Access to Justice

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2012-2013 CHAIR Alan Pearse

LIAISON Marian De Souza

Nathan Po Sandra Hildebrand Co-Chairs

Marian De Souza

Shannon McGinty

Jeff Wise, QC

Analea Wayne Johanna Price Robert Bourne Cynthia Scheible Co-Chairs (S)

Steve Mandziuk, QC

Karine De Champlain Amanda Lindberg Co-Chairs (N)

Steve Mandziuk, QC

Lisa Hickman Cynthia Scheible Prov. Co-Chairs Kevin Feehan, QC (N) Bill Ranson, QC (S) Melissa Morrison Michael Kraus Co-Chairs

Steve Mandziuk, QC

Karen Platten, QC Jeremiah Kowalchuk Co-Chairs Ola Malik

Cyril Gurevitch, QC

Jeff Wise, QC

Wayne Barkauskas Wayne Barkauskas

Cyril Gurevitch, QC

Law Matters | 25


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BRANCH APPOINTMENTS BRANCH APPOINTMENTS Internet Advisor

Section Co-Ordinators

MANDATE

2012-2013 CHAIR

LIAISON

to provide technical developmental and graphic design advice to the branch with respect to the CBA – Alberta website. To provide and implement initiatives to expand and enhance CBA services through the internet. to monitor the activities of branch sections. To assist and provide support and assistance to sections and staff sections registrars.

Nathan Po

Steve Mandziuk, QC

Curtis Serra Melissa Morrison Co-Chairs (S)

Jeff Wise, QC (S)

Jeremiah Kowalchuk Karen McDougall Co-Chairs (N)

Cyril Gurevitch, QC (N)

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ANNOUNCEMENTS This text-only section is provided for non-profit organizations free of charge. To include your organization’s announcement please contact the Communications Coordinator at 403-218-4310 or newslet@cba-alberta.org.

Law Matters | 27


CBA-ALBERTA Vice President

JANUARY 31 & FEBRUARY 1

Cyril S. Gurevitch, QC

Marian V. De Souza

Secretary

Hotel Macdonald, Edmonton

President

2013

Treasurer

EXECUTIVE

Wayne Barkauskas

Past President

Executive Director

Steven Mandziuk, QC

Jeffrey D. Wise, QC

Maureen Armitage

Law Matters is published by The Canadian Bar Association Alberta four times annually. Submissions are subject to approval and editing by the Editorial Committee. Law Matters is intended to provide general information only and not specific legal advice. The views and opinions expressed here are those of the writers and do not necessarily reflect the position of the publisher. Direct submissions and enquiries to Law Matters, Attention: Publications, Southern Office. Law Mattersâ&#x20AC;&#x2122; e-mail: newslet@cba-alberta.org.

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www.cba.org/alberta 28 | Law Matters

Law Matters | Fall 2012  

The quarterly publication of CBA Alberta. In this issue of Law Matters, we examine the world of in-house counsel. From the perspectives of...