ISSN 1704 â€“ 9377
Vol. 37 No. 1 Spring 2012
Law Matters | 1
E d i t o r ’s
IN THIS ISSUE President’s Report
Old Wills in Vaults
Back to Basics
View from the Bench
Wills & Succession Act
Front & Centre
ADR Before Trial Under the Surrogate Rules
People & Places
CBA National News
Going In-House Guide
Pro Bono Law Alberta
Classified et Cetera
The spring publication of Law Matters is my favourite publication! By the time it reaches our readers’ desks, the sun is shining, the ice is gone from both the North Saskatchewan and Bow Rivers, and I drive to and from work in daylight. My fondness Dragana Sanchez of the spring publication Glowicki, Editor of Law Matters is why I have chosen to focus on one of my true loves in life - Estate Law.
By Dragana Sanchez Glowicki the solicitor who prepared the Will would also be retained to probate the Will. However, given the tremendous amount of responsibility bestowed on a solicitor who cares for their clients’Wills, it may not be such a good idea to stockpile these Wills anymore. In my opinion, one of the main reasons why this practice has become so dangerous is that people are so mobile that it has become almost impossible to keep track of clients’ contact information and to remain in touch with them. Gone are the days where we all lived and worked in the same village as our parents, grandparents and great grandparents.
As you may or may not know, the area of Estate Law has undergone tremendous change this year. In February, the Wills and Succession Act was proclaimed and came into force. In this edition of Law Matters, whether you are a seasoned estate lawyer or a general practitioner, Patricia Daunais’, Q.C., article on the new Act is a must-read. The article explains the most important changes implemented by the new Act.
T. Jesse Wilde’s article discussing whether alternate dispute resolutions are required by the Surrogate Court Rules is fascinating, even for myself who has been practising exclusively in the area of estate litigation for nearly 17 years. I have to admit, although I hadn’t put my mind to whether the question if mandatory mediation applies to the Surrogate Court, it has always been my practice to attempt some form of mediation process and attempt to resolve the dispute before trekking off to Court.
Chad J. Brown’s article on Death and Taxes is also an excellent summary of the basic Income Tax Act provisions that govern most estates. Chad is one of my favourite tax lawyers because he actually makes sense of the Income Tax Act.
Mike Anderson’s article will hopefully shake some of us up and encourage us to make sure that our own legal affairs, when it comes to our estate planning, have been attended to. On that note, I am off to review my own Will!
Anthony G. Young, Q.C., an editorial committee member, has written an article on whether or not storing Wills is a good idea. At one time, I’m sure storing Wills was done with the view that
I hope you enjoy this publication. If you have any comments, I would welcome them at newslet@ cba-alberta.org.
Contributing Authors this Issue Dragana Sanchez Glowicki Jeffrey D. Wise, QC Patty Johnston, QC Jennifer Flynn Gillian Marriott, QC Hon. Judge A. A. Fradsham
Curtis Serra Karen McDougall Shekhar Parmar Suchetna (Sue) Channan T. Jesse Wilde Patricia Daunais, QC
Chad J. Brown Wendy Matheson Mike Anderson Anthony G. Young, QC
L-R top row: The Honourable Madam Justice E.I. Picard (Edmonton); Terrence A. Cooper, QC (Fort McMurray); Jason Schlotter (Calgary); Anthony G. Young, QC (Calgary); and, Devin Mylrea (Calgary). L-R bottom row: Robert Harvie, QC (Lethbridge); Michele Hollins, QC (Calgary); Shannon McGinty (Calgary); and, Gillian Marriott, QC (Calgary).
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P re s i d e n t ’s
The Canadian Bar Association is an amazing organization. While this has always been my view; it has been reinforced as a result of my experience on our Branch Executive. We are fortunate to have such a strong Executive and even more fortunate to have staff that keep everything working so well. I would like to thank our Executive and staff for all of their hard work and dedication. On Monday, April 16, 2012 I attended at my last Council meeting as Alberta Branch President. We have done good work this year; with the intention of setting a strong foundation for the future. The National Membership Review Committee is preparing to present to the Canadian Bar Association National Board and the Canadian Bar Association National Council a new membership fee structure. It will be presented at the Canadian Legal Conference in Vancouver August, 2012. On April 16, 2012 Stephanie Elyea and Joan Bercovitch, from our National office, presented an outline of the proposed fee structure at our Council meeting in Edmonton. We have invited feedback from our Council members in order to ensure that our interests are fully represented at the Canadian Bar Association National Council meeting in Vancouver. The Canadian Bar Association, Alberta Branch, and Pro Bono Law Alberta are collaborating in a joint initiative to put together a video project that will provide 3 educational videos in order to assist unrepresented individuals in understanding basic Courtroom processes in the areas of foreclosure, landlord and tenant, and civil claims. The Canadian Bar Association Young Lawyers Section and the Junior Lawyers Section of Edmonton, are supporting this initiative. This volunteer opportunity for lawyers will provide them with a chance to network with their colleagues and to provide their creative talent in the creation of the videos. The volunteer lawyers will have an opportunity to work with members of the judiciary in both Edmonton and Calgary. Ola Malik, Chair of the Canadian Bar Association Alberta Branch Communication Committee, will be working with the volunteer lawyers in Calgary on the landlord/tenant and foreclosure videos and Gillian Marriott, Q.C., Executive Director of Pro Bono Law Alberta, and the staff at PBLA, will be working with the team of volunteers in Edmonton on the civil claims video. The Alberta Law Conference will take place from January 31 – February 1, 2013 in Edmonton. Karen Platten, Q.C. and Jeremiah Kowalchuk, the Co-Chairs of the conference, have set a theme of working with the courts and the judges and plan to involve members of the judiciary in all aspects of the conference program. To this end, we are pleased that we will again be collaborating with members of the Court of Queen’s Bench to present a joint panel involving lawyers and members of the Bench. We hope to see you at the conference. The Alberta Branch Executive met on March 8, 2012 with the Honourable Chief Justice N. Wittmann, the Honourable Madam Justice K.M. Eidsvik, The Honourable Mr. Justice G.C. Hawco, the Honourable Madam Justice E.A. Hughes, the Honourable Madam Justice J. Strekaf and the Honourable Mr. Justice B.E. Mahoney from the Court of Queen’s Bench. The Alberta Branch executive met on April 11, 2012 with the Honourable Chief Judge A.G. Vickery, Assistant Chief Judge N.R. Hess, Assistant Chief Judge V.T. Tousignant, Assistant Chief Judge W.A. Skinner and Judge LeGrandeur from the Provincial Court. Topics of interest were addressed that involved the Bench, the legal profession and members of the Canadian Bar Association. The Canadian Bar Association had an opportunity to host the Honourable Mr. Justice Crampton, Chief Justice of the Federal Court
By Jeffrey D. Wise, QC
of Canada and Prothonotary R.R. Lafrenière of that Court at a reception and dinner on March 12, 2012. We had an opportunity to have a frank exchange of views on matters important to the Court in the areas of tax, intellectual property and immigration. It was agreed that we would make this an annual event. We look forward to continuing this affiliation with the Federal Court in the future.
Jeffrey D. Wise, QC President
The CBA Executive attended the Canadian Legal Guidance 40th Anniversary Dinner on February 23, 2012, which was a great success. We thank all of the volunteer organizers for putting together such a magnificent event. Calgary Legal Guidance represents the strength of the volunteers within our profession. We would like to thank those lawyers who volunteer at Calgary Legal Guidance. Their hard work and dedication over the last 40 years has ensured that many Albertans have access to our Justice System and the opportunity to have legal representation, they otherwise might not. Law Day was very successful, providing the public with an opportunity to experience our Justice system first hand. Law Day promotes Access to Justice. Law Day took place in Drumheller on April 20, 2012, Calgary and Edmonton on April 21, 2012 and in Lethbridge and Medicine Hat on April 28, 2012. The Canadian Legal Conference takes place August 12 – 14, 2012 in Vancouver, British Columbia. At the Canadian Legal Conference members will have an opportunity to attend at over 12 hours of professional development courses, addressing academic and practical issues. This will be a great opportunity for our members to network with over 1000 legal professionals across Canada. There will be opening night festivities at Grouse Mountain where attendees will have an opportunity to experience the diverse culture, history and the scenic splendor that makes up the City of Vancouver. We look forward to the hard work and guidance of our Branch Executive under the leadership of Cyril Gurevitch, Q.C.. Cyril will become our Branch President in August 2012 at the Canadian Legal Conference. Under the leadership of Cyril in the coming year I have no doubt that our members will be proud of the hard work of our Executive. Cyril intends to focus on Access to Justice within rural communities. This initiative is of significant importance in order to ensure that Albertans have legal representation when it is needed. In conjunction with the Law Society of Alberta, the Alberta Rural Development Network, and law schools in Edmonton and Calgary and Pro Bono Law Alberta, the CBA is working on an initiative to promote the re-introduction of young law students and lawyers in rural Alberta. Statistics have shown that rural practitioners are declining and that the centers of Edmonton and Calgary are attracting a disproportionate number of graduates and Junior Members of the Bar. Demographics suggest that this decline will keep continuing at an ever increasing rate as the legal population ages. The committee, led by the Alberta Rural Development Network, is working to make an application to the Alberta Law Foundation for funding in order to fund this project. We believe that this project is fundamental to Access to Justice within Alberta. I would finally like to thank all of the CBA volunteers within Alberta for their strong support and dedication this year. We recognize your commitment of time to the CBA and cannot express our appreciation enough. Enjoy your summer and please focus on your families, friends and those things that are most important to you. D
Law Matters | 3
Old Wills in Vaults Is There Any Potential for Negligence?
By Anthony G. Young, QC
A lost Will may be much worse than not even having a Will in the first place. The concept of a Will creates expectations. These expectations can be real or unreal; reasonable or unreasonable; expected or unexpected. Promises may have been made. These promises may be genuine or put on. Having a well drafted Will creates certainty for beneficiaries upon the maker’s demise. A lost Will, no matter how well drafted, creates uncertainty. With uncertainty comes frustration, anger, inconvenience and discomfort.
making a periodic review of office record keeping procedures to ensure that reasonable arrangements to safeguard, retain and retrieve the Will are maintained.
I assumed that there would be a plethora of lawsuits commenced by disappointed relatives against unsuspecting and well intentioned solicitors because of missing or lost testamentary documents.
All of the strategies noted in the four paragraphs immediately above are, in my view, cumbersome and impractical. They are, in my view, minimum standards to ensure that a Will does what it is intended to do. Unfortunately, even if these standards are followed to the letter, they may ultimately be ineffective.
Anthony G. Young, QC
I was mistaken. In fact, a cursory search of recent cases fails to yield any case of a lawyer being sued for misplacing a Will. What does exist, however, is an abundance of practice advice regarding the handling of Wills up to and including the date of the Testator’s death. Regarding old wills in vaults - There is no question that there is a potential for bad feelings, inconvenience, and expense. This really however, is a practice management and client satisfaction issue. My question to you is “even if you as a lawyer are able to keep a Will safely ensconced in a vault, is this something that you really want to do?” The real question is whether it remains “best practice” to keep executed original Wills. It is my view that it is not. The fact that Wills are kept in vaults is a clue to whether the reasonably prudent solicitor should take on or continue with the responsibility of preserving any original Will. A Will is an important document. The contents of a Will may have far reaching financial, familial, religious or even societal consequences. It follows that if an original Will is retained in a lawyer’s office, reasonable arrangements must be made to safeguard, retain and retrieve the Will. Incidental to these arrangements are the obligations of the lawyer to maintain contact with the client, ensure safe storage, insure against loss and provide for orderly document management. Lawyers should also be mindful that a lawyer has a legal obligation to prepare a new Will and attend upon its execution if the Will is destroyed or lost while under the lawyer’s care. All of these obligations are important, onerous and expensive. Practitioners must therefore make a careful assessment of the risks when considering whether to “retain” or “store” original Wills on behalf of clients. At the very least, Wills must be stored in a safe, locked and fire-proof facility. In addition, there must be an accurate, up to date record of the Will stored for the client. This record will include information such as the client’s name, current address, telephone numbers, e-mail address and other contact information specific to your client’s needs. In my view, the lawyer should maintain contact with the client on an ongoing basis. Without this contact there may be no practicable way for the Will to be retrieved after the maker’s death. A strategy for ensuring meaningful and timely retrieval may be to send periodic correspondence to the client requesting updated contact information. Another strategy could be to maintain telephone or e-mail contact with the client on a regular basis. It would also be prudent to include 4 | Law Matters
Bear in mind that a lawyer’s obligations regarding the Will do not end upon retirement or when a lawyer’s office closes down. In such a case, arrangements must be made to locate the client and obtain their instructions regarding the disposition of the document. Thereafter, those instructions will need to be carried out. Finally, lawyers need to plan for death or disability. Consideration should be given to have a colleague or another lawyer step-in to care for your Wills if you are not able to practice, for whatever reason.
I believe that the best practice is to deliver the original Will to the client for safe keeping. The solicitor should, however, maintain copies of the original documents on file for future reference. The original Will should be accompanied by a clear and concise reporting letter identifying the original document and advising that the file is being closed. This letter should include advice that the Will is an important document and as such, arrangements should be made by the client for safe storage and retrieval. A Will is owned by the client not the solicitor who drafted it. It is the client’s property. It is the client’s responsibility. Accordingly, it is my view that the client should be responsible for safeguarding, retaining and retrieving it. Lawyers should not, without pause and careful consideration, assume this responsibility. D
JUDICIAL LIST COURT OF QUEEN’S BENCH: Mr. Justice Arthur M. Lutz (Calgary) retired as a supernumerary judge on February 3, 2012. Supernumerary Justice James L. Foster (Red Deer) retired on April 4, 2012. PROVINCIAL COURT: Robin Brian Camp was appointed Judge of the Provincial Court of Alberta (Calgary Criminal), effective March 22, 2012. Kenneth Richard McLeod was appointed Judge of the Provincial Court of Alberta (Calgary Criminal), effective April 10, 2012. Judge Gary G. Cioni (Calgary Criminal) has been reappointed as a part-time judge, effective April 14, 2012 for a one year term. Gordon Sharek, Q.C. was appointed Judge of the Provincial Court of Alberta (Edmonton Civil), effective April 16, 2012. Judge Donald J. Buchanan (Edmonton Family & Youth) has been appointed as a supernumerary judge for a two year term effective April 17, 2012. Judge Bruce R. Fraser (Calgary Criminal) has been reappointed as a full-time judge, effective April 25, 2012 for a one year term. Judge Paul G. Sully (Edmonton Criminal) has been reappointed as a full-time judge, effective April 26, 2012 for a one year term.
BACK TO BASICS
Death & Taxes
By Chad J. Brown
Benjamin Franklin wrote in his November 13, 1789, letter to Jean-Baptiste Leroy “… in this world nothing can be said to be certain, except death and taxes.” Those timeless words echo as true today as ever, and as such, all legal practitioners should understand some basics of estate income tax planning, as they will eventually find themselves providing preliminary advice to an estate or beneficiary. Even if you attempt Chad J. Brown to avoid estate administration like the grim reaper himself, I hope the following tips will help answer some basic client questions and assist you with issue identification. Of course, it is recommended that an experienced tax advisor be retained to avoid the many pitfalls associated with this complicated area, in particular where the deceased has significant property and business interests.
(c) The Pipeline Strategy
The Deemed Disposition
When he dies, Mr. White plans to leave his shares in Holdco to his kids, Vincent and Jules. Assuming the shares of Holdco have a FMV of $1 million at the date of death, the deemed disposition under section 70(5) will trigger a capital gain on the death of Mr. White of $999,900 and income tax of up to 19.5% of the gain. As a result, Vincent and Jules will inherit shares with a FMV of $1 million and ACB of $1 million. One may assume that Vincent and Jules can now receive the cash out of Holdco without paying any additional income tax. However, the only way to get the cash in Holdco into their personal wallets is by payment of a dividend from Holdco to the Estate which will trigger additional personal income tax of up to 27.71%. As such, the aggregate income taxes paid by the Holdco and the Estate is up to a whopping 55% (factoring in 14% corporate income tax paid by Opco on retained earnings of $1 million) far higher than the top marginal tax rate in Alberta of 39%. In order to avoid this potential “double tax”, administrators of the Estate should consider implementing the Pipeline Strategy.
Subsection 70(5) of the Income Tax Act (the “Act”) generally provides that a taxpayer who dies in a taxation year is deemed to have disposed of, immediately before his or her death, each property that was owned by the taxpayer immediately prior to his or her death for proceeds of disposition equal to the fair market value (“FMV”) of such property at that time. Paragraph 70(5)(b) provides that a person who, as a consequence of the deceased taxpayer’s death, has acquired any such property is deemed to have acquired it for a cost equal to its FMV immediately before death. Accordingly, all unrealized gains and losses on all property owned by the deceased taxpayer at the time of his or her death must be reported in the final T1 personal income tax return of the deceased (the “terminal return”). The properties deemed to be disposed of by the deceased taxpayer are notionally received by a testamentary trust of the deceased (the “Estate”) for the purposes of administration. (a) Spousal Rollover By virtue of subsection 70(6), the deemed disposition referred to above does not apply to property transferred by an individual to the spouse or common-law partner of the individual as a consequence of the death of the individual. The deceased individual is deemed to have disposed of the asset at its “cost amount” and the surviving spouse or common-law partner is deemed to have acquired it at the same “cost amount”. Therefore, no gain or loss should be realized by the estate of the deceased individual for these types of transfers. (b) The 164(6) Election Subsection 164(6) permits a deceased taxpayer’s legal representative to elect to report certain losses realized in the first taxation year of the Estate on the terminal return. 164(6) can be used to carry losses of the Estate back to the terminal return of the deceased to offset gains reported on the terminal return of the deceased individual, including gains deemed pursuant to subsection 70(5).
The Pipeline Strategy is generally used to mitigate potential “double tax” where the individual owns shares of a private corporation at the date of death. Consider your typical client, Mr. White, who subscribed for shares in a private corporation (“Holdco”). Holdco acquired, grew, and eventually sold a successful widget business (“Opco”). Mr. White is retired and Holdco now owns $1 million of largely tax paid investments (e.g. cash from the sale proceeds of his widget business) and his shares of Holdco have a FMV of $1 million. Although the shares of Holdco owned by Mr. White have a FMV of $1 million, his adjusted cost base (“ACB”) in those shares is a nominal amount ($100) which is the original capital contributed by Mr. White when he first subscribed for shares of Holdco, many years ago.
The first step of the Pipeline Strategy is for the Estate to incorporate a new corporation (“NewCo”). The Estate will then sell its shares of Holdco to NewCo in consideration for a $1 million promissory note. There is no taxable gain on the disposition of the shares of Holdco by The Estate to Newco because the Estate has ACB in its shares of Holdco of $1 million, as a result of the subsection 70(5) deemed disposition/acquisition. Subsequent to the sale of the Holdco shares to Newco, the corporations complete an amalgamation (or wind-up), and effectively transfer all the assets (and liabilities) of the corporations into the merged corporation (“Amalco”). From there, Amalco can repay the promissory note to the Estate with $1 million cash its received on the merger with Holdco. The result is that the cash of Holdco can be transferred to the Estate and its beneficiaries without the Estate or beneficiaries having to receive a dividend from Holdco resulting in an income tax savings of up to 27.71%. There are a number of landmines to consider when implementing the Pipeline Strategy, which go beyond the scope of this article, so it is important to have sound income tax advice before deciding to implement the series of transactions described above. Concluding Comments
If this provision did not exist, an Estate which realized losses on the disposition of property in its first taxation year might not ever have an opportunity to use these losses since the Estate might not ever realize in the future any gains or other income to offset against these losses. It is important to note that only losses realized during Estate’s first taxation year can be carried back to the terminal return. Any losses realized by the Estate in a subsequent taxation year cannot be carried back to the terminal return. As such, planning for the disposition of any property that is “underwater” (i.e. FMV less than the tax cost) during the first year is paramount.
Estate administration, and the associated income tax consequences, can be extremely complicated. Although the CRA publishes many free guides to assist taxpayers and professionals with their estate planning matters, it is prudent to seek the assistance of experienced income tax advisors when dealing with these sorts of matters. If you enjoyed this article, please follow me on twitter @tax_litigator or add me to your professional network on LinkedIn. D
Law Matters | 5
W h a t ’s
MAY 17: The Canadian Bar Association presents 2012 Advocacy Before the Federal Court in Intellectual Property Matters, The Westin Hotel, Ottawa, ON. Contact: Lauren DalBello (CBA National Office). Phone: 613-237-2925 / 1-800-267-8860 ext. 190 or via e-mail firstname.lastname@example.org. 30: Alberta General Counsel Association is celebrating its 25th Anniversary and is Patty Johnston, QC inviting past and present AGCA members to join in the celebration. Petroleum Club, Calgary, Alberta from 4:30 - 7:00 p.m. Contact: Trish Carter at 403-5132708 or via e-mail: email@example.com 27-June 1: The Canadian Bar Association presents 2012 Tax Law for Lawyers, Pillar and Post Hotel, Niagara-on-the-Lake, ON. Contact: Leslie Huard (CBA National Office). Phone: 613-237-2925 or Toll Free at 1-800-267-8860, Ext. 186 or via e-mail: firstname.lastname@example.org. JUNE 8: The Canadian Bar Association presents 2012 Military Law Conference. R.C.A.F. Officers’ Mess, Ottawa, ON. Contact: Lauren DalBello (CBA National Office). Phone: 613-237-2925 / 1-800-267-8860 ext. 190 or via e-mail email@example.com. 5 – 6: The Canadian Corporate Counsel Association presents Financial Reporting, Accounting and Analysis: The Fundamental Tools of Finance and Accounting for Corporate Counsel. Montreal. QC. More information to be available http://www.cancorpcounsel.org/En/ events/main/pd.aspx
Westin Hotel, Calgary
JANUARY 26 & 27
Materials from the 2012 Alberta Law Conference are now available for purchase, available as a full package or by individual panels.
14-15: The Canadian Bar Association presents 2012 National Aboriginal Law Conference: Aboriginal Peoples and Natural Resources. Delta Bessborough, Saskatoon, SK. Contact: Mahoganey Jones (CBA National Office). Phone: 613-237-2925; 1-800-267-8860, ext. 189 or via e-mail: firstname.lastname@example.org. JULY The Calgary Bar Association presents Stampede Whoop-Up. Final details will be provided at www.calgarybarassociation.com. 16 – 19: Federation of Law Societies of Canada presents 2012 National Family Law Program. Halifax Marriott Harbourfront, Halifax, NS. Consult website www.flsc.ca for details. SEPTEMBER 28 – 29: The Canadian Bar Association presents The 2012 National Construction Law Conference, Sheraton Hotel, St. John’s, Newfoundland. Contact: Leslie Huard (CBA National Office). Phone: 613-237-2925 or Toll Free at 1-800-267-8860, Ext. 186 or via e-mail: email@example.com. OCTOBER 11 – 12: The Canadian Bar Association presents the Eighth Annual Pan-Canadian Insolvency and Restructuring Law Conference, 2012 Military Law Conference. Delta Halifax, Halifax, NS. Contact: Lauren DalBello (CBA National Office). Phone: 613-237-2925 / 1-800-267-8860 ext. 190 or via e-mail firstname.lastname@example.org. Please send your notices to Patricia (Patty) Johnston, QC c/o Energy Resources Conservation Board Phone: 403-297-4439 E-mail: email@example.com
CBA members can purchase online:
www.cba.org/alberta or contact Holly Schlaht at 403-218-4311 or firstname.lastname@example.org.
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VIEW FROM THE
It all started with a leisurely stroll through the April 6, 2011, edition of the Calgary Herald. Amongst the page B5 headlines about murder appeals and dentists (not necessarily related concepts), there was this headline: â€œSynthetic whale vomit created for perfumesâ€?. I confess that caught my attention. Frankly, until that moment, I did not know that whales vomited. I certainly did not know that anyone would be interested in creating artificial vomit, with the possible Hon. Judge exception of those companies the purpose A.A. Fradsham of which is to add to the general well-being and progress of humankind by creating and selling practical joke props of questionable taste and maturity. But most of all, I did not know that perfumes were made with whale vomit. I read on. I learned that something called â€œambergrisâ€? is a component of perfumes. Off I went to the Encyclopaedia Britannica. It told me that ambergris is â€œa solid waxy substance originating in the intestine of the sperm whaleâ€?. According to the Britannica, it is thought to be a substance which protects a sperm whaleâ€™s intestines when the animal is dealing with the indigestible bits of squid and cuttlefish it consumes. Such a substance would have been useful to me when I was taking my meals in residence at the University of Alberta. As with residence food, the whale cannot stand too much ambergris, so it hacks up the big pieces (I really am not making this up). One piece, according to the Britannica, was 635 kg. I have this image of an enormous cat coughing up a giant fur ball. Very pleasant. The Britannica article says, â€œFresh ambergris is black and soft and has a disagreeable odour.â€? Oh, really? Canâ€™t imagine why. Happily, when it washes up on shore and is â€œexposed to sun, air, and seaweed...it hardens and fades to a light gray or yellow, developing a subtle and pleasant fragrance in the process.â€? Oh, really? Canâ€™t imagine how. What a lovely caterpillar-to-butterfly, Pygmalion-type of story. I suppose it is akin to the miracle of teenagers turning into human beings. Anyway, once nature has rehabilitated the ambergris so that it is fit for civilized society, the stuff is picked off beaches and sold. According to the Britannica, in Eastern cultures, it is used as a spice, while in the West, ambergris is â€œused to stabilize the scent of fine perfumes.â€? I cannot get my eldest grandson to eat most vegetables, so I have no idea how Iâ€™d sell him on some dish which has been spiced with aged whale vomit. I suppose it is all in the marketing. I still donâ€™t understand why someone wishing to encourage sales would call a product â€œclotted creamâ€?. I can only assume that the culinary and cosmetic uses for this disgorged delight were developed before people figured out from whence the stuff came. Mind you, at some point, with full knowledge of the identity of the item in question, someone thought prairie oysters sounded like a dandy snack, and prepared the first couple (well, I assume they are done in pairs).
By Hon. Judge A.A. Fradsham
Back to the ambergris. The Calgary Herald article by Gabrielle Tieman (for Postmedia News) noted that researchers at the University of British Columbia (being a province with miles of shores upon which whale vomit might collect), discovered certain enzymes in the resin of the balsam fir which could eliminate our societyâ€™s voracious appetite for whale vomit. No, I donâ€™t immediately see the connection either, but then I dropped out of Grade 12 chemistry. However, these UBC science fair over-achievers obviously mastered Grade 12 and beyond, and by using the said Christmas tree enzymes, have created a synthetic compound which should go some distance in curbing the barbaric practice of taking sperm whales to some seedy bar, and plying them with cheap red wine, all for the sole purpose of getting them to spew. At the very least, weâ€™ve got to be talking a Nobel Prize here. I think our UBC heros should immediately book flights to Oslo so as to get a good deal. Of course, as with any advance in human progress, there is one wee drawback. If this synthetic stuff does to whale vomit what rubber compounds did to whale bone corsets, there is going to be a lot of unclaimed ambergris lying about. Careful what you pick up on your next beach stroll. Remember when your mother said, â€œDonâ€™t touch that, you donâ€™t know where it has beenâ€?? Think of what she would say if she knew the truth about those yellow-coloured, amber-like objects dotting the sand. D
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Law Matters | 7
PRACTICE POINTERS Civility: 10 Litigators to Watch Out For (Part 2 of 2)
By Wendy Matheson We printed the first part of this terrific article in our last edition of “Practice Pointers”. For descriptions of Litigators 1-5, see “Practice Pointers” in Law Matters Volume 36 Number 4 Winter 2011-2012. Maureen Killoran
Bullies are particularly hard on junior lawyers and may be perfectly civil with senior lawyers on the same matter. Again, in this case, it can be helpful for the senior lawyers to speak about the issue directly. If your junior (or clerk or staff member) has been subjected to abuse, you should, at the very least, register your dismay with opposing counsel and ask that the conduct not be repeated.
Here is the second installment: 10. The Fair-Weather Litigators PART II: 5. The Mimics
Anne Kirker, QC
A variation on the novice is the inexperienced litigator who has learned bad habits by bad example, in court, on TV or in their dealings with other lawyers. These litigators – not knowing any different – assume that if someone else behaves in a certain way, that is an acceptable way to behave. Again, guidance will often produce civility.
6. The Stressed-out Litigators Most litigators are normally civil. But with the pressure of practice, demanding clients and the fast pace of life, anyone can get stressed out from time to time. This can lead to a short temper. Remember, anyone can have a bad day, but this should not provide a reason to start World War III. If the bad day was your opponent’s, don’t overreact. If the bad day was yours, you can fix it. One of my colleagues, uncharacteristically, hung up on opposing counsel. The next day, she gave him a rose. 7. The Pawns Some litigators act as they do on their clients’ directions, not realizing that you do not take instructions on professionalism. 8. The Junior (or “the Devil made me do it”) Litigators Some junior litigators act as they do because their senior tells them to. When you speak to them about the issue, they will often tell you that they would rather not have done things that way, but they were told to by the senior lawyer on the file. I know of one young lawyer who quit litigation altogether out of dismay for the approach advocated by the senior litigator at his firm. This is a particularly problematic category because senior lawyers should be providing a good example, not directing juniors to act uncivilly. It is also one example of a situation in which senior lawyers should discuss the issue directly and focus on the real problem. 9. The Bullies Bullying litigators, either as a result of personality or ego, treat people miserably until someone makes them stop. Bullies freely accuse other lawyers of unprofessional conduct. One of my colleagues, while still on the phone with opposing counsel, got a fax from this counsel accusing him of inappropriate conduct. The advent of email and text-messaging has made it much too easy to engage in this conduct.
8 | Law Matters
Fair-weather litigators behave civilly until their cases start to go badly. At that point, they begin to lash out at everyone, including counsel and even the court, often making extreme and totally unwarranted allegations of misconduct. These storms can be weathered. Ultimately, like all uncivil conduct, this type of behaviour reflects badly on that litigator’s case, not yours. What to Do? There is no perfect solution to the problem of the difficult opponent, but the following may help: • Identify which type of litigator you are dealing with. • Be firm, but never escalate the situation. • Discuss the problem with other counsel; everyone has had to deal with these problems. • Remember that life is too short to let yours be ruined by an uncivil opponent. D
Immigration Law Group Peter W. Wong Q.C. D. Jean Munn Rekha McNutt Lisa Couillard
when you and your clients need Immigration advice... CALL US 403-770-1905 firstname.lastname@example.org
Unsung Hero - Gabriel Chen 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 Gabriel Chen. The son of Taiwanese immigrants C.T. and Aria Chen, Gabriel was born and raised in Halifax with his older brother Luke. Gabriel earned his Advanced Major in Immunology and Microbiology at Dalhousie University. Gabriel then successfully wrote admission tests for medicine, law and pharmacy. Finally, he decided to study law at the University of New Brunswick (UNB). Classmate and legal counsel at CEDA International, John McKinley, notes “all through law school Gabe spent nearly as much time in the library as he did promoting social causes”. Gabriel chaired the Poverty Law Society at UNB, he organized fundraisers for causes such as the Year of the Tsunami, recruited students to volunteer at the local soup kitchen and Legal Advice Clinic, and coordinated a conference on careers in Legal Aid. John McKinley explains, “Like many of our fellow graduates Gabe made his way to Calgary after law school. Unlike many of his classmates who pursued lucrative private sector positions Gabe continued his passion in the social justices by working at Calgary Legal Guidance after being called to bar”. In 2007, Calgary Legal Guidance (CLG) received funding from the Alberta Law Foundation for a Homeless Outreach Project (HOP). As staff lawyer for HOP, Gabriel took to the streets of downtown Calgary to learn about legal issues affecting Calgary’s homeless population. Gabriel formed alliances with homeless shelters such as the Mustard Seed and Calgary Drop-In Centre, housing and health services like the Calgary Urban Project Society and Alex Community Health Centre, and addiction treatment centres including Calgary Alpha House and Fresh Start Recovery. HOP legal advice clinics currently operate at several of these locations. There, Gabriel and dedicated volunteer lawyers provide free legal information, referrals and advice to the homeless or to people at risk of homelessness. Common legal issues encountered by the homeless arise from family breakdown, mental illness, addictions, unpaid wages and job loss. These circumstances often lead to evictions, charges for property damage, trespass and offensive behaviors. Accordingly, Gabriel’s practice consists primarily of criminal representation and residential tenancy law. By living on the street, many homeless individuals’ identification is either lost or stolen. Without identification individuals cannot access basic needs such as opening a bank account, applying for work and renting an apartment. Paradoxically, to replace lost identification individuals first need identification. HOP has assisted over 4,000 clients by providing notarized photo identification documents, and applying for birth certificates and Social Insurance cards. HOP advocate Janis Martin also assists the non-legal needs of Gabriel’s clients including accessing housing, counseling, disability benefits and income support. For several years, Gabriel has worked with Federal, Provincial and Municipal Crown Prosecutors and social agencies such as the Alex Pathways to Housing program on formal and informal justice initiatives for individuals struggling with mental health and addiction issues. Individuals who participate in counseling, engage with health care providers and housing workers may have their charges withdrawn, thereby avoiding a criminal record and other penalties. Gabriel is pas-
sionate about expanding these types of programs as they reward progress and positive behaviour, rather than punishing failure. More importantly, they effectively address the underlying cause of the charges, helping prevent recidivism. Pathways to Housing program manager, Shelly Qualtieri, reports “with Gabriel’s hard work and high level of understanding of the significant risk this population is at in the community we have seen significant reductions in recidivism with our clients”. Gabriel is commended for contributing to public policy, advocacy, legal education and to the community. CLG’s volunteer coordinator, Kim Feodoroff, says “Gabriel’s clients often arrive at CLG asking for him as the “Saint” or the “Doctor”. He has street cred. and would be safe walking in any precarious neighborhood late at night”. Calgary Drop-In Centre’s supervising counselor, Anthony Banka, explains “Many of our guests deal with multifarious situations and obstacles. To make change and move forward they need a high level of instruction and support. Our guests lavish praise about the quality of care, information and understanding they have received from Gabriel”. John McKinley comments, “many of us promote social justices when we think someone else is looking. Gabe promotes social justice when no one cares to look”. Gabriel’s other work at CLG includes acting as Assistant Senior Staff Counsel, and supervising Student-at-Law Jennifer Costigan, which he humbly describes with a broad smile as “the blind being led by the slightly less blind”. He mentors for Student Legal Assistance and the CBA Mentor Program, and is a CPLED facilitator-evaluator. In his spare time, Gabriel is an active member of the Calgary Chinese Alliance Church, enjoys running, cooking and the Real Housewives antics. We celebrate Gabriel’s achievements - Gabriel is an “Unsung Hero” - he represents some of the finest qualities of our profession. D Article Written by Suchetna Channan If you know a lawyer who deserves to be recognized, please send us an e-mail to email@example.com with the lawyers 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.
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Law Matters | 9
Wills and Succession Act By Patricia Daunais, QC The new Wills and Succession Act (“WSA”) was proclaimed by the Alberta Legislature on February 1, 2012. This Act makes sweeping changes to the law of wills and estates in Alberta. It is probably the most major change in this area in the last seventy years. The new WSA replaces the Wills Act, the Intestate Succession Act, the Dependents Relief Act and the Survivorship Act. The WSA was also going to extensively amend the Matrimonial Property Act of Alberta (“MPA”). However, as a result of lobbying by the South Wills and Estates Section of the Alberta Branch of the Canadian Bar Association, the extensive amendments to the MPA have been put on hold for further review by the Alberta Government and for further input by Alberta lawyers and citizens. So, what are some of the major changes? Survivorship Under the old Act it was presumed that the eldest died first and therefore joint property passed to the youngest and was part of the youngest’s Estate. Under the new Act it is presumed that each party has “predeceased” the other. This means jointly held property is treated as if it was held as Tenants in Common and therefore each estate will take half of the property unless there is evidence of different proportions of ownership. This is a welcome change to the law and allows people in blended family situations to ensure if both parties die in a common accident that their estate is left to their descendents or beneficiaries and it is no longer a case of the “youngest takes all”. Marriage and Divorce Under the old Act, entering into marriage or an adult interdependent partner (“AIP”) agreement revoked one’s prior will. Under the new Act, entering into a marriage or AIP agreement does not revoke any prior will. Most members of the Wills and Estates Bar are not too sure why such legislation was passed. Such legislation immediately pits a new spouse against the beneficiaries of the deceased spouse’s will. Under the old Act, divorce had no affect on gifts in the will, nor on the executorship/trusteeship appointments in favour of a former spouse. Under the new Act, any gifts in a will to a former spouse and any appointments of them as Executor or Trustee are deemed revoked. Most wills and estate practitioners believe this is a good change to the law, but were quite surprised that the designation of beneficiaries, whether in a will or insurance policy, or RRSP, RIF or TFSA were not treated the same as gifts in a will and were not deemed revoked by divorce. Most divorce and estate lawyers will tell you that it is the RRSP and insurance designations that are most frequently inadvertently left to a former spouse and it therefore seems odd that the legislation allows for gifts in a will to be revoked but not the designation of an insurance policy, RRSP, RIF or TFSA. A later designation of a beneficiary will revoke an earlier designation to the extent of any inconsistency, and the revocation of a will also revokes any designation of a beneficiary made in that will but does not revive an earlier designation. It is therefore very important that people are aware of who they have designated as their beneficiary on all designated beneficiary assets.
years in continuous cohabitation or have lived together in a relationship of some permanence and have a child together, or have entered into an Adult Interdependent Agreement. If you are married or qualify as an AIP and have no descendants, then everything will go to your spouse/AIP. If you and your spouse have descendants who are all descendants of the deceased and the surviving spouse, then again everything will go to the surviving spouse. If the deceased spouse has descendants who are not descendants of the surviving spouse, then the greater of 50% or $150,000.00 will go to the surviving spouse and the balance will be divided among the descendants of the deceased per stirpes. If the deceased died leaving no spouse, then everything will go to his or her descendants per stirpes. Finally, if the spouse dies and leaves no spouse or descendents, then everything will go firstly to: (a) the deceased’s parents; (b) the deceased’s siblings and their descendants; (c) to the deceased’s grandparents and their descendants on both sides; or (d) to the deceased’s great-grandparents and their descendants. In any case, any distribution shall only go out four degrees of relationship. This is known as a parentelic distribution. Rectification Prior to the proclamation of the WSA, a Court had very limited powers to validate a non-compliant will even if the Court was satisfied that the testator had meant the document to be a will. For example, a witness’ signature may have been missing, a testator may have not signed in the presence of a witness or they were not in the room at the same time, a holograph will was not wholly in a testator’s handwriting or alterations, markings or obliterations were not properly initialled. The Court can also rectify wills by adding or deleting characters, words or provisions if satisfied that the will does not reflect the intent of a testator due to accidental slip, omission or miss-description or a lawyer’s error. The Court can validate or even rectify a will if a testator’s signature is missing. In all cases, to do so, the Court must have clear and convincing evidence before it. Gifts The old rule used to be that gifts in a will to a witness, to a person who signed for a testator, to an interpreter or to a spouse or AIP of any of the foregoing was void. Now the Court can order that such gifts are not void if the intent was to make the gift and there was no undue influence of the testator by the recipient or their spouse or AIP. Evidence Previously the Court attempted to interpret the will simply by reading the will itself and ascribing the ordinary meaning to the words used. Only if the language was ambiguous could the Court consider the surrounding circumstances – the Court placed itself in the position of the testator who made the will and construes the will in the light of the surrounding facts and circumstances (it was referred to as the “armchair rule”). The emphasis now is on determining the testator’s intention and so evidence will be allowed as to the meaning of words and phrases used in the will, as to the meaning of the provision or term in light of the testator’s circumstances and also outside evidence of the testator’s intent will be allowed.
Intestate Estates Advancement “Descendants” now replaces “issue” in intestate terminology and applies to all adults who die without a will and includes adult interdependent partners who have lived together for three or more
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Certain long-standing legal presumptions are abolished by the WSA. Previously if a testator, after making a will, made a substantial gift or
transfer to a child, then such gift or transfer was considered to be an advance against such child’s inheritance and was deducted from the child’s share of the estate unless there was evidence to the contrary. Now, if the deceased dies without a will, that is intestate, then there is no presumption that the gift is to be deducted from the child’s share. If the deceased has made a will, then an application can be made to determine if the testator intended that the transfer or gift was Patricia Daunais, QC to be deducted from the beneficiary’s share. Outside evidence including documentation will be considered by the Courts in making their determination.
CHOOSE FROM CANADA’S TOP MEDIATORS AND ARBITRATORS
Support of Family Members Currently the persons who can make support claims are spouses/AIP, minor children and adult children if by reason of physical or mental disability they are unable to earn a living. Two new categories have now been added under Part V, Division II of WSA dealing with support for family members. An adult child between the ages of 18 and 22 years of age, who is in school full-time at the date of the parent’s death, can make an application for support, as well as a minor grandchild or great-grandchild who was dependent on such grandparent or greatgrandparent and such grandparent stood in the place of support of the parent.
The Hon. John C. (Jack) Major, C.C., Q.C.
The Hon. John S. Moore, Q.C.
The Hon. Ernest Marshall, Q.C.
Clint G. Docken, Q.C.
Graham Price, Q.C.
E. David D. Tavender, Q.C.
Now under the WSA, the person making a claim is called a family member, whereas the person who made a claim pursuant to the Dependents Relief Act was called a dependent. Property Division Claims by a Spouse The most controversial aspect of the WSA were the amendments to the Matrimonial Property Act of Alberta. Because of the controversy, the amendments to Section 116 have been suspended. The amendments made several changes to family law in Alberta. Under the existing legislation, a surviving spouse could not claim pursuant to the MPA if they did not have a right to commence a matrimonial property claim after the death of their spouse if they did not have the right to do so immediately prior to the death of their spouse. This meant that basically, spouses who were living together at the time of their death, whether happily or unhappily, could not seek their share of the estate pursuant to the MPA. The spouse was left with his or her dependents relief claim. There were two major problems with the amendments to the MPA. Firstly, the legislation was retroactive and applied to all estates where a death occurred after coming into force of WSA on February 1, 2012. This meant that the very careful estate planning done by lawyers and sometimes over several decades in many cases would be undone. The retroactive nature of this legislation has considerable repercussions for small business owners, persons in second marriages, and for farmers and ranchers. Secondly, the legislation allowed for a double-dip. The surviving spouse would have received their share pursuant to a MPA claim plus whatever was left to them pursuant to the will or on intestacy. In many situations involving second marriages, small business owners, and farmers and ranches, this left the surviving spouse in a much better position than they would otherwise have been in, and seems at odds with the basic philosophy of the amendment, which was to ensure a surviving spouse did not receive less on death than they would have on divorce. The calculations for determining the surviving spouse’s share were also very complicated. The legislature proclaiming WSA as law on February 1, 2012 suspended the amendments to the MPA for further input by Albertans. Let us hope there will be significant input by Albertans and professionals so the amendments to the MPA only apply to wills drafted after February 1, 2012, or like many other provinces including Ontario, the surviving spouse is given an election to take under the will or receive his or her entitlement pursuant to matrimonial legislation, whichever is greater. D
Harold W. Veale, Q.C.
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Reception for Federal Court Chief Justice P. Crampton - March 12, 2012, Calgary
Federal Court Chief Justice, Paul Crampton
L-R: Prothonotary Lafrenière, Doak Horne, Michael Bailey, QC, CBA Alberta President Jeff Wise, QC
CBA Alberta Vice-President Cyril Gurevitch, QC with Assistant Chief Judge V. Tousignant
30th Annual Law Day -”Thank you” to all who helped make Law Day celebrations a huge success! Lethbridge - April 28, 2012
North & Co. lawyer Wayne C. Petersen representing the 20th Independent Field Battery RCA.
Matthew Bullock on trial as the evil Gargamel
Georgia Wood, daughter of Dividson & Williams lawyer Kristin Ailsby-Wood, colouring on the Smurf Wall at Kidz Korner
Scott Hadford as Smurfette with his Crown Counsel, Robynn Bonin
Edmonton - April 21, 2012
Ask-A-Lawyer Volunteers Michelle Freebairn and Jim Chronopoulos
High School Mock Trial Coordinators L to R: Erika Bottcher, Emma James, and Arthur Wilson, QC
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Justice R. Graesser speaking during the Opening Ceremonies
Law Day Court Liaisons and Court Clerks at Information Booth
Steven Mandziuk QC and Dwaine Tymchyshyn, Principal of St. Catherine Catholic Elementary/ Junior High School, recipient of the Law Day 2012 Bursary
“We Got Hustled” Children’s Trial Actors Ed Picard and Melissa Sadownik
FRON T & C E N T R E Council Meeting - April 16, 2012, Edmonton
Guest Speakers Stephanie Elyea and Joan Bercovitch, CBA National Staff
Head Table L to R: President Jeff Wise, QC, Vice-President Cyril Gurevitch, QC, Secretary Steven Mandziuk, QC, Past-President Analea Wayne, QC, Executive Director Maureen Armitage
Drumheller - April 20, 2012 Drumheller Law Day was attended by over 100 Grade 9 students from Morrin, Delia, Three Hills and Drumheller. Along with a mock trial they saw presentations from Correctional Services of Canada, the RCMP, Alberta Sheriffs, Court Services and Alberta Law Libraries. Cinderella (Colin Kloot) sues her stepmother’s family with her Fairy Godmother (Sharon Clark) at her side
Prince Charming (Hugh Sommerville) took the witness stand on Cinderalla’s behalf
Officer Lang and Zoom from Correctional Services of Canada giving a drug search demonstration.
Calgary - April 21, 2012
Courts Centre Security and Confiscated Items Display
Cast of “Custody Battle on the Gridiron” L to R: Alexa Horabin, Aaron Martens, Stampeders’ Player Charleston Hughes, Honourable Judge LaRochelle, Ralph the Dog, Erin Kuzyk, Saarah Shivji, Lorena Kembel
Cast of “GLEEfully Paying Your Taxes?” Photo Courtesy of Lindsey Louro Back Row – Marc Cunningham, Analea Wayne QC, Sarah Chiu, Adegoke Arowosebe , Jean Pascal, Sandra Thompson, Chad Conrad. Front Row – Dacil Acevedo, Abby Acevedo, Jeff Brunner, Roxy Petts, Brenda Foley
Calgary Law Day Mascot Barrister Beaver
The Honourable Mayor Nenshi and CBA President Jeff Wise, QC
Canada Border Services Agency
“Who Dunnit? The Case of Thatcher the Purse Snatcher” Cast L to R: Kali Dunkley, Benjamin Kormos, Dorian Dunkley, Michael Dunkley, Rick Billington QC, Alex Kominek, Susan Billington QC, Andreina Verela, Joel Cheverils, Mary Dunkley
Law Matters | 13
ADR Before Trial Under the Surrogate Rules:
Obligatory or Optional? When a conflict arises, most clients ask themselves: “how can I resolve this issue in the least amount of time for the least amount of money?” Frequently, the answer to this question involves some form of Alternate Dispute Resolution (“ADR”). Recognizing this, recent revisions to the Alberta Rules of Court require parties to consider and engage in at least one dispute resolution process before going to trial.1 T. Jesse Wilde
The Court may waive this ADR requirement, but only in limited situations, such as: when the parties have previously engaged in dispute resolution and the court believes that further dispute resolution would not be beneficial; the nature of the claim is not one that will or is likely to result in an agreement between the parties; there is a compelling reason why a dispute resolution process should not be attempted by the parties; dispute resolution would be futile; and the claim is of such a nature that a Court decision is necessary or desirable.2 There is, however, a high threshold for obtaining such exemptions, and the courts only grant these exemptions sparingly.3 Saskatchewan and Ontario both have similar mandatory dispute resolution rules, which have been in place much longer than in Alberta, and it appears that courts in these jurisdictions have been reluctant to grant an exemption from this rule.4 Does this mandatory ADR provision apply to matters that fall under the Surrogate Rules? The Alberta Rules of Court apply to matters under the Surrogate Rules unless the matter is specifically dealt with under the Surrogate Rules or the context indicates otherwise.5 As it appears, the Surrogate Rules have established their own trial procedures. If a contentious matter requires the trial of an issue, the Surrogate Rules specify that the court will order the trial procedure.6 It appears that judges are given broad discretion in defining the trial procedures under surrogate matters. For example, the Surrogate Rules define the trial procedures that must be followed in an application for the formal proof of a will.7 This procedure involves applying to the court in chambers for direction as to the procedure the parties must follow prior to and during trial. It appears that judges are given broad discretion under this rule as they may dispense with any pre-trial procedures and send the matter directly to trial.8 It appears that the Surrogate Rules have dealt with trial procedure in their own way. Therefore, the court is not bound by the trial requirements of the Alberta Rules of Court. The procedure to follow for each trial under the Surrogate Rules is determined on a case by case basis,
W H AT A B O U T B O B ? R O B E R T A . R I VA R D McConnell MacInnes
PLAINTIFF LONG-TERM DISABILITY CLAIMS (WCB Claims Excluded) 27 years of experience in this field 4, 12110 - 40 Street SE, Calgary, AB T2Z 4K6 Tel: 403-640-1300
14 | Law Matters
Toll Free: 1-866-640-1077 Also serving Edmonton
By T. Jesse Wilde
and the court may order that the parties engage in some form of ADR before trying the issue at trial. However, it does not appear there is a strict requirement for ADR under the Surrogate Rules. Do other jurisdictions that have mandatory mediation apply this requirement to surrogate matters? Both Saskatchewan and Ontario require parties engage in mandatory mediation before trial. However, these jurisdictions are unlike Alberta in that their regulations specifically apply to estate matters. In Ontario, the mandatory mediation requirement is specifically incorporated in the rules regarding estates and trusts.9 And in Saskatchewan, mandatory mediation applies to all contentious matters except family law proceeding.10 Alberta Rules of Court Foundational Rules The foundational rules of the Alberta Rules of Court require that the parties explore ADR.11 The purpose of the Alberta Rules of Court is to provide a means to fairly and justly resolve claims in a timely and costeffective way.12 The intention of these rules is to identify the real issues in dispute; facilitate the quickest and least expensive means of resolution; encourage parties to resolve the dispute by themselves; encourage open and honest communication between the parties; and provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.13 Quick and effective resolution is also the purpose and intention of ADR. As such, in order to achieve these objectives it seems natural that the parties participate in some form of ADR. Even though the Surrogate Courts do not specifically require participation in ADR, the Alberta Rules of Court require that the parties periodically evaluate dispute resolution alternative to a full trial, with or without the assistance from the Court.14 Therefore, even if parties under the Surrogate Rules are not specifically required to engage in ADR before trial, based on the foundational principles of the Alberta Rules of Court, there is a presumption that they should. Therefore, it appears that ADR is not obligatory under the Surrogate Rules. However, to achieve the objectives found in the foundational rules of the Alberta Rules of Court, it appears that ADR is not optional either. As such, although not required, ADR should be considered in all matters, even surrogate ones. D
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.
Alberta Rules of Court s.4.2(e) see also s.8.4 and 8.5 Alberta Rules of Court s.4.16(2) IBM Canada Limited v. Kossovan, 2011 ABQB 621 at para 31 IBM Surrogate Rules s.2(1) Surrogate Rule s.66 Surrogate Rule s.83(2) Surrogate Rule s.83(3)(a)(v) Ontario Rules of Civil Procedure 1990, Reg. 194 s. 75.1 Saskatchewan Queen’s Bench Act, s. 42(1) Alberta Rules of Court s.1.2(3)(b) Alberta Rules of Court s.1.2(1) Alberta Rules of Court s.1.2(2) Alberta Rules of Court s.1.2(3)
You’re a Legal Professional;
H E A LT H M AT T E R S
Do You Have a Legal Will? If you’re like me and you organize your life based on various “To Do” lists, here’s one item that you should get crossed off right away this spring: GET A LEGAL WILL IN PLACE. Your peace of mind (and consequently, your mental health) will benefit greatly. Perhaps the best way to demonstrate the importance of having a Will in place is to consider what will happen if you don’t: Mike Anderson
1. You will lose your testamentary freedom. Your property will be given to people based on a list that comes from our legislation, rather than based on your wishes; and 2. Your family will be left without any guidance with respect to certain decisions, including what to do with your remains, or who will take care of your minor children - these decisions are a big burden to place on your family while they are grieving. If you have a valid Will in place, you will have control over your affairs and can provide certainty and comfort for those whom you leave behind. For those of you who do not have Wills in place at the moment, or whose Wills are old and outdated, have you ever taken a few moments to think about what would happen if you passed away suddenly? It may scare you into action. Having an up-to-date Will in place ensures that:
By Mike Anderson
RRSPs up-to-date?” You may end up crossing off more than just one item from your To Do list. Further, when getting your Will in place, you should also execute an Enduring Power of Attorney and a Personal Directive. While a Will deals with matters after death, these documents allow for decisions to be made while you are still alive, but lack capacity to make decisions for yourself. Again, having these documents allows for you to choose what you want to happen and protects your loved ones from having to make difficult decisions without your input. The relevance of this subject to the topic of your health is simple: it is good for one’s peace of mind, and therefore one’s mental health, to have a Will in place. I can’t count the number of clients who have said to me over the past few years, after signing their Wills, “I feel so relieved to have that done!” or, “We have been meaning to get these done for a really long time - they’re always on our ‘To Do’ list, but we just never seem to get around to it.” I also commonly hear from clients that having an executed Will in place instantly reduces their stress, provides them with a general feeling of mental well-being and results in a giant breath of relief.
- YOU appoint your Personal Representative; - YOU decide who will receive your property as the beneficiaries of your estate; - YOU choose the guardians of your minor children; and - YOU direct what happens with respect to your remains
Some people put off their estate planning because they don’t like to think about their own mortality, but, as the saying goes, there are only two certainties in life: death and taxes. And while the latter of these may change from time to time, there’s no way of avoiding the former. The overwhelming benefit of having a Will in place, not the least of which is the added convenience and simplicity for your family, should override whatever difficulty one has with contemplating his/her own death. If you have a valid Will in place, your family will then be able to spend the days after your passing going through the grieving process, rather than trying to wade through the often murky waters of an intestate estate.
In addition to these common directions, in reviewing your own particular circumstances, you may also pinpoint certain wishes that are unique to your situation and require additional drafting in your Will. Also, going through this process will almost undoubtedly result in other topics being reviewed and considered, such as, “Do I have sufficient life insurance in place?” and “Are the beneficiaries named in my
So, do it for your family; while you are getting going with your spring cleaning, turn your mind to a potentially uncomfortable subject, and knock another item off your To Do list: “GET A LEGAL WILL IN PLACE.” In doing so, you will allow your family to avoid unnecessary hours, months and even years of dealing with your intestacy, and you will have peace of mind - just in time for summer. D
People & Places
Calgary: Karen Hanna has joined P2 Energy Solutions Alberta ULC. Rebecca Bell is now at Matkovic Allan LLP. Wanda Rumball has joined Moskowitz & Meredith. Eugene Friess is now at Deloitte. Julia Stadnyk has joined Shell Canada Limited. James Sladek is at Baker Hughes Canada Company. Derek Allchurch is now practicing with Litwiniuk & Company. Rod Onoferychuk has joined North Calgary Legal Centre. Cindy Marshall is practicing with Campbell O’Hara.
Please send us your news! email@example.com Firms: Verjee & Associates is now at 200, 128 – 2 Ave SW, Calgary. Sharek & Co is at 701 – 10060 Jasper Ave NW, Edmonton, P: 780-413-3100, F: 780-4133152. Phillip Stuffco, QC and Jordan Stuffco are pleased to announce the opening of Stuffco Law, located at 203, 10110 – 124 Street, Edmonton, P: 780-761-1430, F: 780-761-1432. John C. Armstrong, QC is pleased to announce the opening of ArmstrongEstateLaw, located at 603, 1333 - 8 Street S.W. Calgary, T2R 1M6, P: 403-503-0840, F: 403503-0842. Directory Correction: David D.M. Trofimuk correct address: Cox Trofimuk Campbell 208, 4245 - 97 Street NW Edmonton, AB T6E 5Y7.
Edmonton: Alanna Sinclair has joined Intact Insurance. Allan Damer is now at Mintz Law. Yoko Azumaya has joined Sharek & Co. Kacper Jaskowiak is at Capital Power Corp. Suzanne Thomas and Jeremiah Kowalchuk have joined Field LLP. Alexander Witt is at the Municipal Government Board.
Law Matters | 15
CBA National News CBA WEIGHS IN ON PROCEEDS OF CRIME AND TERRORIST FINANCING ACT The CBA appeared before the Senate Committee on Banking, Trade and Commerce on April 4 to participate in the Committee’s five year review of the Proceeds of Crime and Terrorist Financing Act. The CBA has been involved in the government’s attempts to combat money laundering since it was first considered in Canada, and has maintained that these efforts must occur within the context of protecting fundamental rights and freedoms of Canadians, including the right to consult a lawyer with confidence that the communication goes no further. In contrast, the original proceeds of crime legislation required lawyers to report their clients to a federal agency based on any suspicion of money laundering, and then to continue to act for those clients without notifying them of that report. The legal profession brought a constitutional challenge to the law, with the profession eventually being excluded from its ambit. Meanwhile, all law societies enacted rules of professional conduct to ensure that underlying government goals were addressed. The profession continues to be excluded from the operation of the law, given a recent court ruling, but that decision is now under appeal. The CBA, represented by Ron Skolrood of Vancouver, a member of the CBA’s Working Group on Proceeds of Crime, participated in the review to explain the issues at stake and outline what the legal profession has done and will continue to do to address the important interests involved.
YOUNG LAWYERS INTERNATIONAL PROGRAM A group of nine young lawyers recently visited the CBA National Office in Ottawa after completing six-month internships with the CBA’s Young Lawyers International Program (YLIP). The group was in town to debrief and share their experiences in the program. In total, 19 young lawyers provided their expertise at legal organizations in South Africa, Kenya, Namibia, Colombia, and Guyana with the overall goal of expanding human rights in these developing nations.
Pictured (L to R): Mathieu Delorme, Heather Wojcik, Erin Riley, Gloria Song, Joseph Chedrawe, Allison Thomas, Hart Shouldice, Eleonora Dimitrova, Alison Hopkins.
While the YLIP links international human rights organizations with talented young lawyers looking to make meaningful contributions abroad, it also gives new lawyers a chance to gain unparalleled work experience in the human rights field. To learn more about the program and view photos from the lawyers’ trips, visit www.cba.org/CBA/IDP/yiip/.
CBA on Facebook, LinkedIn, & Twitter! 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.
CELEBRATION, COLLABORATION, COMMUNITY By Jennifer Flynn, Managing Director, Legal Education Society of Alberta A couple of months ago, we had cause for definite celebration around the LESA offices. Paul Wood, our Executive Director, was appointed as Queen’s Counsel and we feted this honor with staff and colleagues. It was a wonderful evening of connection with friends old and new, and it was a great occasion to come together as a community and genuinely celebrate individual and group achievements. While the practice of law can at times be contentious, it struck me, while speaking with several colleagues that night, the necessity of this kind of supportive community in order to thrive, and how lucky we are in Alberta to share such respect and camaraderie across our profession.
to be born to staff members in recent months. While this party held none of the formality of the QC celebrations, it was yet another opportunity for us to gather together and mark important milestones in our colleagues’ lives.
A few days later, LESA had another celebration. Our staff held a baby shower for the latest addition to the LESA family - one of three babies
Therefore, in the spirit of collaboration, we do our very best to support the community that works so hard for us. We offer a number of
16 | Law Matters
It’s this kind of relationship-building that is central to the work we do. Collaboration is one of our core values as an organization, and without a strong sense of community, collaborative work is impossible. We count on the contributions of our volunteers – the majority of whom are, themselves, well-connected to the legal community – and it is through their efforts that we are able to provide our award-winning programming. Without the enthusiasm and commitment of our volunteers, we could not do the work we do.
LUCILLE R. BIRKETT, Q.C., OF ALBERTA RECEIVES CBA’S 2012 DOUGLAS MILLER AWARD
PROTECT CLIENT CONFIDENTIALITY IN DISCLOSING INFORMATION ABOUT TRUST ACCOUNTS
Lucille R. Birkett, Q.C., a collaborative family law practitioner from Sherwood Park, AB, was named the winner of the 2012 CBA Douglas Miller Award at the 2012 Mid-Winter Meeting of Council.
If you have a trust account at a financial institution that is a member of the Canada Deposit Insurance Corporation (CDIC), you should have received a reminder in April about disclosure requirements you must meet under the CDIC Joint and Trust Account Disclosure By-law. For a trust deposit to enjoy additional insurance coverage, trustees must disclose certain information on the records of the member institution. The good news is that solicitor-client privilege has been addressed, and confidentiality of client information can be protected.
“Lucille brings her warmth, enthusiasm, and team spirit to everything she does,” said CBA President Trinda L. Ernst, Q.C., of Kentville, NS. “Her strong commitment to our association, as demonstrated through her participation and leadership in countless CBA activities, made the selection of this year’s winner an easy decision.” Lucille became involved in the CBA as a law student at the University of Alberta, and quickly established herself as a dedicated volunteer. A past President of the CBA-Alberta Branch, she currently sits on the association’s national Board of Directors and chairs the Small, Solo, and General Practice Forum. The Douglas Miller Award honours the late Doug Miller of Yellowknife, a former president of the CBA’s Northwest Territories Branch and very active member who passed away in 1994. The award recognizes a CBA member who demonstrates outstanding dedication and team spirit. For more information, visit www.cba.org/cba/awards/douglas_miller/.
To protect client confidentiality, a lawyer or notary may substitute an alpha numeric or other code for the name and address of each beneficiary. The code would refer back to the records maintained at the lawyers’ or notary’s office, thereby maintaining confidentiality. Details are available at www.cba.org/news/cdic-letter.aspx.
Connect@Vancouver The only national gathering of Canada’s legal community, the Canadian Legal Conference (CLC) takes place in Vancouver Aug. 12-14, 2012. Whether you’re in a large, medium, or small firm, or are a sole practitioner, in-house, or government lawyer, there are many reasons to attend the CLC – here are just a few:
FLEXIBILITY IN EI FOR MATERNITY AND PARENTAL BENEFITS • A joint working group has been formed between the Equality Committee, Young Lawyers-CBA and Women Lawyers Forum to advocate for enhanced flexibility in EI maternity and parental benefits. The group suggests that maternity and parental benefits would be improved if parents could work part-time while on maternity or parental leave without having benefits clawed back, could take the benefits at a higher rate over a shorter duration or lower rate over a longer time period, and take a series of brief parental leaves instead of one long leave. In a recent SLAW story on maternity leave, Linda K. Robertson said: “As a result of successful lobbying by the CBA, the legislation governing EI benefits was amended in 2010 to permit those people who are self-employed to access maternity and parental leave benefits that previously were available only to employed associates … This change is a tremendous help to lawyers working on their own and one of the many reasons all lawyers should support the CBA.”
“perks” to our volunteers in thanks for their hard work, like special recognition, training, and networking opportunities. We’re also happy to support and collaborate with other groups that recognize the efforts of legal volunteers, from Pro Bono Law Alberta to the Players de Novo (our celebrated legal community theatre group). We take our commitment to this community seriously, and we’re delighted to contribute in whatever way we can. In recent months, we’ve made a push to extend our community to the digital world and to build relationships with our legal colleagues online. The world of social media has proven to be a treasure trove of connections, and we’re proud of how quickly that community has grown in a short period of time. We’ve seen a 90 per cent increase in our Twitter following in just over two months, and engagement in our Facebook page is also up significantly. We actively encourage “tweeting” at our live events as a means of connecting colleagues and information. We’re doing our best to build our network and to share content that is valuable to our community as another way to contribute to the relationships we consider so important.
Earn 12 hours of professional development credit. Some of the top legal minds in the country are presenters at this year’s PD sessions. With 15 PD programs and 12 corporate counsel workshops offered over a two day period, the CLC is a one-stop shop to meet CPD requirements. Network with colleagues from across Canada. Connect with your peers at breakfasts, receptions, entertainment, late night parties, and the ever-popular at-home dinners. Soak in the stunning sights & sounds of one of the world’s top cities. Nestled between mountains and ocean, Vancouver is frequently ranked as one of the best cities to visit. Between events, enjoy world class dining, shopping, and art galleries, or hike through spectacular Stanley Park and its circling Seawall.
Visit www.cba.org/Vancouver2012 for more details and to register for CLC 2012.
So, how can you get involved in our community? Volunteer with us, attend our seminars, and connect with us online. You can follow us on Twitter (@lesaonline), and you can “Like” our LESA Facebook page. In return, we offer you a rich community of engaged, like-minded colleagues, opportunities for you to learn and to share your skills, and a means to contribute important value to our profession. Jennifer Flynn
Our 2012/2013 Educational Calendar will be hitting desks soon! Mark your calendars: our 46th Annual Refresher in Lake Louise—with a focus on Family Law— will run April 28-30, 2013. For the most up-to-date information on live events, educational resources, pre-call admission training, and volunteer opportunities, visit www.lesa.org. D
Law Matters | 17
Going In-House Guide
(Part 1 of 2)
Over the last several years we have seen a significant increase in the size of many inhouse departments. We are often asked for advice when associates and partners are considering making a move in-house and this article attempts to answer some of the more commonly asked questions. This article uses some empirical data from The Counsel Networkâ€™s In-House Compensation & Career Survey to shed some light on matters and also provides things to consider when making an import career decision like moving in-house.
When in my career should I move in-house? Although there is no â€œidealâ€? time to make a transition from private practice to in-house positions, we generally recommend that associates build a good base set of legal skills before making the move. We find that this happens for most associates somewhere between 4-7 years post call and it is at that time that they are most attractive for General Counsel looking to hire. Generally, in-house departments are not looking for lawyers they need to train but rather those that can bring already existing useful legal skills to their departments. Based on the data, on average in-house counsel have 5.8 years of experience
By Shekhar Parmar
in private practice before making the move in-house. However, interestingly, those in-house counsel who rise to the very top (i.e. General Counsel at the Executive Level), have on average 6.8 years of experience in private practice (prior to moving in-house) which indicates that the more time you spend in private practice the better your chances of advancing further in an in-house role. How do I best prepare for moving in-house? Gaining exposure to and experience with a wide variety of corporate/ commercial transactions is the best training for going in-house. Experience within the context of the industry which is a driver in your geographic region is also particularly useful. For example, in Alberta, obtaining corporate experience within the context of the oil and gas industry is particularly helpful whereas in British Columbia that may be mining or forestry. Litigators and other specialists (like tax, or IP) probably have the hardest time making this transition as most inhouse departments continue to refer such work to external counsel. If you specialize in litigation or tax (or other such specialty) your best chance to obtain an in-house position is to target large in-house departments where they may need a specialist in those areas. Also keep in mind that, when hiring, most General Counsel look for lawyers who have a pragmatic approach to the practice of law in the in-house environment. Often lawyers in private practice are paid to be risk assessors whose task it is to point out every potential problem in a given course of action. In an in-house environment the risk spotting has to be balanced with the business objectives and you as the internal legal counsel may be looked upon to make the judgment call. Prepare for moving in-house by turning your mind to these ideas in your practice now. In the next issue we will discuss compensation differences between private practice and in-house roles, work-life balance, best ways to finding an in-house role and the trade-offs when moving in-house. For more information or comments, please contact Shekhar Parmar, Director, The Counsel Network, at 403-444-1764 or sparmar@ thecounselnetwork.com
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Spring into Pro Bono!
PBLA Celebrates 5 Years
Gillian Marriott, QC
This spring, Pro Bono Law Alberta (PBLA) celebrates five years of creating and promoting pro bono opportunities for Alberta lawyers. PBLA was established as the legacy project of the Law Society of Alberta during its centenary celebrations in 2007. We have come a long way in five years and it continues to be an exhilarating journey thanks to the commitment of our staff and Board of Directors, most of who have been with PBLA right from the very beginning.
PBLA’s mandate is to promote the development of organized pro bono service delivery in Alberta. We engage lawyers in innovative projects and partnerships that make it easy and rewarding for them to become involved. Since 2007, PBLA has brokered several partnerships between law firms and organizations, and the volunteer work done by law firms through these partnerships has impacted the lives of countless Albertans in their legal journeys. Some of our projects include the recent “Legal Grounds” event in partnership with Calgary Public Library in October 2011 at which volunteer lawyers from Norton Rose Canada LLP (formerly Macleod Dixon LLP) provided one on one summary legal advice to 103 people. The event was so successful that it will be done in Lethbridge on April 28 and again in Calgary on October 17, 2012. One of our highlights was the co-hosting of the 3rd National Pro Bono Conference in September 2010, in partnership with other provincial pro bono organizations. Delegates with an interest in pro bono attended from Canada, the United States and Australia. We are looking forward to the 4th National Pro Bono Conference to be held in Montreal on October 31 to November 2, 2012. Another successful project was the establishment of Grande Prairie Legal Guidance in 2008, which is now operated by Edmonton Community Legal Centre (ECLC). In 2009, PBLA began management of the Volunteer Lawyer Services Program (VLS) which since 1995 has provided a matching service between volunteer lawyers who provide pro bono legal services and charitable organizations who otherwise would not be able to afford such services. In April 2011, the VLS program expanded to include services to individuals who are referred by pro bono clinics and Legal Aid. It is through this process that PBLA is helping to provide another avenue for people to obtain pro bono services thereby increasing capacity for access to justice for those in need.
By Gillian Marriott, QC
from interested law firms and is excited about the growth of this project in such a short time. In May, PBLA, the Canadian Bar Association – Alberta Branch and members of the judiciary from the Alberta Courts will produce three educational videos that will be available for the public to view at the Calgary Courts Centre and the Edmonton Court House. The videos will provide unrepresented claimants with short, easy to understand instructions about basic courtroom procedures, processes, etiquette and other useful information. The videos will be in the areas of Landlord and Tenant, Foreclosure and Civil Claims and will be made available for other users including the pro bono clinics. This spring PBLA is also excited to work in partnership with the pro bono clinics to host Raising the Pro Bono Bar, a celebration for the legal profession. The events are held to recruit lawyers to volunteer at the clinics or other programs and to recognize those volunteers who are making a difference in their communities. The events will take place in the following areas: Grande Prairie May 3, Lethbridge May 10 and Edmonton May 31. To provide an update to managing partners of firms in Calgary and Edmonton, PBLA hosts an annual meeting to keep the legal community apprised of PBLA’s current and future projects. We hosted a meeting for managing partners in Edmonton in November 2011, and in Calgary in March 2012. In Calgary, guest speaker Mr. David Tavender, QC, Partner Emeritus at Fraser Milner Casgrain LLP, presented “A Roadmap to Adequate, Effective Access to Justice”. Visit “What’s New” on the PBLA website home page at www.pbla.ca to download the paper. This is just a snapshot of the many activities PBLA has engaged in since we were formed in March 2007 as a legacy project marking the 100th anniversary of the Law Society of Alberta. PBLA’s activities are driven by a vision of access to justice for all regardless of ability to pay for legal services. PBLA’s work is made possible by the incredible commitment of the legal community who have travelled with us on this road. We will celebrate our fifth anniversary on June 21, 2012 and invite all our colleagues to join us as we toast the legal community and look forward to many more years of building on the already strong culture of pro bono service in the legal profession in Alberta. Thank you for your support! D
In the fall of 2011, PBLA launched the Civil Claims Duty Counsel (CCDC) project in partnership with Pro Bono Students Canada. The CCDC project is offered at both the Calgary and Edmonton courts centres and is an innovative way to engage lawyers in a valuable pro bono project that assists many people with various legal issues. In Calgary, the project expanded as of January 2012 to include eight firms and the provision of duty counsel services three full days a week. The Edmonton CCDC project began in January with a half day of service per week and is expanding to add another half day in May. A total of eight firms in Calgary and six firms in Edmonton are committed to this project which provides 117 lawyers and students-at-law and 15 law students the opportunity for hands-on experience working one on one with clients. PBLA is continually receiving requests for information Law Matters | 19
c ro s s - s e c t i o n
From the desk of Karen McDougall
Finally. It is springtime in Edmonton. A time when all of our thoughts understandably turn to… CBA section elections.
Typically, we would be hosting a spring workshop to help you with the information you need to hold your section’s election. At that meeting you section chairs would be given the paperwork for completion relating to your 2012-2013 election results and next year’s executive, your section’s budget, and next year’s section handbooks. Instead, though, the decision has been made to simply send each chair an email with all of the usual information and also links to the forms for completion and submission post-election. In fact, section chairs, by the time this issue of Law Matters hits your desks, you should have received your electronic information packages. Please do not hesitate to contact the CBA offices, Jeremiah or me should you need any help or have any questions. The idea is not to abandon you but rather to keep things simple and remove one meeting from your busy schedules. You’re welcome.
Still on the topic of elections, we encourage all section chairs to start recruiting executive members early; and then not to forget the value
N O RT H
of those members as a resource. Get everyone involved. Delegating responsibility for a meeting or two to each executive member spreads the workload around and takes the pressure off you. Have an executive meeting and throw some meeting ideas around. The national CPD site can be a good starting point for mining for ideas; or contact the branch office to find out what has been covered over the past few years. That can help you to either avoid duplication or follow up on a good idea from the distant past. Section members, why not make this the year you step forward and share your great ideas with your fellow members? It is a gratifying way to have a say or make a difference in the direction your section takes next season, and is also an opportunity to make new contacts. There are two exciting upcoming events on the horizon. The first is the Inns of Court, to be held at the Sutton Place Hotel on May 29, 2012. This event, the 24th to be held in Edmonton, provides junior lawyers with an invaluable learning opportunity to informally dine and discuss with distinguished members of the bench and bar. The focus of the evening this time is on “Civil Chambers Practice”. Register through the CBA-Alberta branch website. Do it early, as space is limited to the first 20 junior litigators to register. See the website for more information. The other notable event, coming in June, is the annual Law & Literature Dinner, sponsored by the Criminal Justice section. This is always a special event, but more so this year, marking its 20th anniversary. Watch for more information on the CBA-Alberta website, www.cba. org/alberta. D
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20 | Law Matters
From the desk of Curtis Serra
A big thank you to all of our Section guest speakers who devote their time, energy and effort into making our sessions educational and worth-while for all members! Attendance this year has been excellent across the board for all Sections. As a quick heads-up, Section executive members can start thinking about putting in place volunteers for their respective Sections for the upcoming year. Speaking of sections executives…what a great way to be involved in the CBA! If you are interested in being a section executive please contact the chair from the section you are interested in. For those who had good intentions of attending a section meeting but were not able to attend in person a quick reminder that handouts and materials are available on the CBA website at www. cba.org/alberta under “Sections” which has a wealth of valuable information on topics completed to date! The CBA sections also continue to provide opportunities for networking and social interaction as the Young Lawyers Section had a social networking session on March 29, 2012 at Craft Beer Market which was a huge success with the biggest attendance
c ro s s - s e c t i o n
for the event to date. Of interest to our Section members is the senior and young lawyers session being held on May 1, 2012 with the current Dean of the University of Calgary law school along with past Deans to discuss and analyze the difference in law school experience from the past to today’s current environment. Law Day once again was a great success and was held on April 21, 2012 at the Calgary Courts Centre.
Lastly, a big thank you for all lawyers who participate in the University of Calgary Mentor program. Your efforts, time energy and enthusiasm is much appreciated by all. The feedback we have received is extremely positive and students genuinely get a lot out of the program. D Curtis Serra
Assist The Board of Directors of Assist thanks 41 Queen’s Counsel who continued the spirit of dedication to the legal community, by commemorating their appointment with a donation to Assist. $19,800 will go directly towards programs and services designed to strengthen the legal community by helping lawyers prevent and overcome personal problems. The Board is also pleased to introduce six new board members to complement an 18-member board of directors: Richard Bourassa is a senior associate at Caron & Partners LLP in Calgary. Richard Bourassa’s practice emphasizes corporate commercial law, wills and estates and commercial litigation. Richard is also a director for the Calgary Catholic Immigration Society, was past-chair of the Canada Pension Appeal Tribunals, and is a referee and adjudicator under the Canada Labour Code. Sarah King D’Souza is Assistant Senior Counsel at the Family Law Office in Calgary. Sarah’s practice emphasizes family law, law office management and collaborative family law. Sarah is a Bencher with the Law Society and was appointed Queen’s Counsel in 2010. Sarah is the Chair or the Retention and re-Engagement Task Force, the Vice-Chair of the Alternate Delivery of Legal Services Project Committee, and sits on the Access to Justice, Appeals, Conduct Process Task Force, Finance, Governance and Practice Review Committees. Sarah has volunteered with the Calgary Association of Women and the Law, the Calgary Legal Guidance Legal Advice Clinic, Calgary Women’s Shelter Legal Advice Clinic, and the YWCA Women’s Legal Advice Clinic. Mark Morrison is a partner with Blake, Cassels & Graydon LLP in Calgary. Mark practices in the litigation group with a focus on white collar crime, anticorruption, competition, securities litigation, commercial litigation, class actions, insurance and product liability. He has served on the Executive of the Calgary Bar Association.
Dr. Richard Spelliscy is the Director, Complaints and Privacy Officer for the college of Alberta Psychologists in Edmonton. Dr. Spelliscy’s experience includes planning, managing and delivering public and private health and social-related services to diverse populations including new Canadians, First Nation and Inuit in urban, rural and isolated settings. This encompasses services to children and families, including prevention or early intervention, child protection, developmental disabilities, adoptions, family trauma, addictions and mental health. Dr. Spelliscy has experience in the areas of criminal justice and occupational safety. Professional guidance and discipline experience includes development of professional conduct policies, guidelines, practice standards and legislation. Dr. Spelliscy is a past President of the College of Alberta Psychologists. Jeffrey Weidman is a partner at Burnet Duckworth & Palmer LLP in Calgary. Jeff ’s practice focuses on commercial & general litigation, insurance, risk management and employment law. Jeff is a member of the Canadian Defence Lawyers and the Alberta Civil Trial Lawyers Association. He has been a member of the board, past secretary, vice-chair and chair of Calgary Legal Guidance, and he is a mentor at Student Legal Assistance. Jeff is the former President of Calgary East Liberal Riding Association. Scott Whitby is a partner at MacPherson Leslie & Tyerman LLP in Calgary. Scott is a corporate and commercial lawyer whose practice focuses on oil, natural gas and electricity industries. He was called to the Saskatchewan Bar in 1994 and the Alberta Bar in 2000. To learn more about Assist and its board of directors, please visit our website at www.albertalawyers.ca or call us at 403-537-5508 or 1-877-737-5508. D Please note - the Assist article appearing in the last issue of Law Matters by Dana D.J. Schindelka was republished with permission by SLAW (www.slaw.ca)
Law Matters | 21
EDMONTON COMMUNITY LEGAL CENTRE Celebrates 10 Years of Pro Bono Work An Edmonton agency offering pro bono legal services is celebrating its 10th anniversary. During the past decade staff and volunteers at the Edmonton Community Legal Centre (ECLC) have helped keep families housed, assisted temporary foreign workers and advised low-income workers of their rights on employment termination. ECLC Board Chair Don Cranston
“The reason we are here… is our belief that people, regardless of their ability to pay, should have access to the justice system,” Board Chair Don Cranston told 150 funders and supporters who toasted the milestone at a reception in January at the Edmonton Art Gallery. The celebration is expected to continue through to the summer with a client appreciation event, likely a Bar-B-Q in front of the agency’s downtown offices, says executive director Debbie Klein. The agency evolved from a project of the Edmonton Social Planning Council with a single staff lawyer and a roster of 27 dedicated volunteer lawyers. It now has 12 staff, including four staff lawyers and 200 volunteers, 135 of them lawyers from local firms.
Since 2002, 19,000 volunteer hours have been donated and more than 10,000 clients have received help. In 2011 alone, more than 10,000 people contacted ECLC for legal information and referral. During that year 1,967 clients received support and summary legal advice from volunteer’s at the ECLC’s legal clinics. Paula Simons
ECLC also administers Grande Prairie Legal Guidance, building on the initiative of the Grande Prairie Bar who established a summary advice legal clinic. Guest speaker at the Art Gallery gala was Edmonton Journal columnist Paula Simons. She touched a chord by pointing out that the pro bono legal work done by ECLC and others keeps our social fabric from unraveling. “Because when people lose faith in our legal system – when they stop trusting our laws and our courts – our entire social contract starts to erode,” Simons said. “When (people) feel the rules are stacked against them, that there is no way for their voices to be heard…when they feel betrayed by the system that’s supposed to protect their rights and liberties – they can retreat into defensiveness, or renege on their own duties and responsibilities as citizens.” D
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classified et cetera ASSOCIATE POSITIONS. Our 12 person law firm is based in the city of Grande Prairie and has three branch offices in Northwest Alberta. We are searching to fill the above positions with candidates who have a strong combination of competence, people skills and commitment to the community. We offer excellent compensation and benefit packages as well as the opportunity to work with a highly skilled team of professionals where skills and dedication are recognized and rewarded. Interested individuals should forward resumes in confidence to: Laureen Barr, Office Manager, Kay McVey Smith & Carlstrom, LLP at email@example.com. VERY EXPERIENCED RETIRED LAWYER interested in part-time paralegal work. Phone 403-251-3136. RESOLVE LEGAL GROUP is an association of independent practitioners located in the 100 year old historic Ribtor building in the new east village of downtown Calgary (440, 318-11th Avenue SE). We practice Family Law, Wills and Estates, Real Estate, and Immigration. We are looking for practitioners with a complementary practice area and/or a practice in Family Law to join our association. Office space currently available. Please send any inquiries to firstname.lastname@example.org. CALGARY OFFICE SPACE AVAILABLE for independent practice, Beltline area. We have space for 1-2 lawyers to sublease offices with established law office. Boardroom, copier, etc. included. Contact email@example.com or Tim Larkin 403-571-7500 or Greg Collver 403-974-3252. INTELLECTUAL PROPERTY. Let us work with you in protecting your clients. Patents, Trademarks, Copyright. Stemp & Company, Lawyers and Patent Agents, 233, 1100 - 8 Avenue S.W. Calgary, AB, T2P 3T8. 1-800-665-4447. EXPERIENCED LEGAL ASSISTANT/SECRETARY available to work from home evenings/weekends. Jennifer Dentzien 780-691-8559. LONDON UK FLAT FOR RENT. Spacious 2 bedroom, 1 bathroom flat for short term rental in Chelsea, close to the Earl’s Court tube station. Contact Gloria@vinciphillips.com. LOOKING FOR A 1-5 YEAR ASSOCIATE. We are a small but busy law firm with a particular focus on criminal law. Check us out at sproulemacnaughton.com. We’re looking to add a junior lawyer who would be interested in doing barrister’s work. Please forward expressions of interest to firstname.lastname@example.org.
Business card size One-quarter page One-third page One-half page Two-thirds page Three-quarters page Full page
$440 $880 $1,100 $1,540 $1,980 $2,530 $2,970
Per piece - distribution 9,500 Specific postal code areas (Printing not included)
Rates are effective as ot February 2011. A 10% discount is applied on a four issue commitment. G.S.T. not included.
Publication of advertising in Law Matters by the Canadian Bar Association Alberta is not an endorsement of the advertiser or of the product or service advertised. No contractual or other relationship between the advertiser and the publishers is implied merely by publication of any advertisement in Law Matters. For complete advertising information, visit cba.org/alberta.
ANNOUNCEMENTS CLERC’S 7TH ANNUAL ARTFUL BENCH & BAR will be held on Wednesday, October 17, 2012, at Hotel Arts at 5:30pm. Tickets are $75 and include one drink, fantastic appetizers, a live jazz band, and a chance at winning great door prizes. Call 403-207-9029 or email email@example.com for tickets! Alberta Lawyers’ Assistance Society (Assist) LUNCHTIME WALK FOR WELLNESS takes place on Thursday, July 19th at Noon. Please join Assist and your fellow colleagues for a fun, brief walk around the Calgary Courts Centre! Call 403-537-5508 for more information.
FOUNDATION OF ADMINISTRATIVE JUSTICE FOAJ is a not-for-profit society dedicated to education and training for the administrative tribunal community, its appointed members, staff and stakeholders. FOAJ is the only organization exclusively providing education in administrative tribunal matters for tribunal members and staff by those who have been in the role. Visit us at www.foaj.ca for more information and education schedule.
This text-only section is provided for non-profit organizations free of charge. To include your organization’s announcement please contact the Publications Coordinator at 403-218-4310 or firstname.lastname@example.org. Law Matters | 23
AlbertaVanAd2012475x10.ai 1 4/3/2012 11:07:39 AM
CBA Canadian Legal Conference
CBA and CCCA Programs Be a part of the only national gathering of Canada’s legal community. Lawyers – including corporate counsel – judges, and students connect on this distinctive national stage to examine legal trends, network with their peers, renew their perspectives and, together, shape Canadian society.
Cyril S. Gurevitch, QC
Connect@Vancouver Aug. 12-14, 2012
Jeffrey D. Wise, QC
Steven Mandziuk, QC
Marian V. De Souza
Analea M. Wayne, QC
°ǤǤǤǤ modus operandiǤ Conférence juridique canadienne de l’ABC Programmes de l’ABC et de l’ACCJE Prenez part à la seule rencontre nationale de la communauté juridique canadienne. Des avocats – dont des conseillers juridiques d’entreprises – des juges et des étudiants branchés participent à ce forum national d’exception pour étudier les tendances juridiques, faire du réseautage, nourrir leur réflexion et œuvrer ensemble à définir la société canadienne.
sebrancher@Vancouver Du 12 au 14 août 2012 INFLUENCE. LEADERSHIP. PROTECTION.
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 Matters’ e-mail: email@example.com.
CBA Alberta Branch Southern Office 1725, 311 - 6 Avenue SW Calgary, AB T2P 3H2 Phone: 403-263-3707 Fax: 403-265-8581 E-mail: firstname.lastname@example.org CBA Alberta Branch Northern Office 1001, 10235 - 101 Street Edmonton, AB T5J 3G1 Phone: 780-428-1230 Fax: 780-426-6803 E-mail: email@example.com
www.cba.org/alberta 24 | Law Matters
Published on May 13, 2014
The quarterly publication of CBA Alberta. The area of Estate Law has undergone tremendous change in 2012, with the Wills and Succession Act...