The
Canadian
Winter 2013
Bar
A s s o c i at i o n
•
S a s k a tc h e w a n
Branch
BarNotes VOL. xxViii NO. 2
IN THIS ISSUE... President’s Message ....... 4 Branch Activities ............ 5 Here & There... Invitation to Attend ...... 7 2014 Mid-Winter Meeting Commentary ..................... 8 Collaborative Law in an Urban & Rural Setting
Commentary ................... 15 The Legal Status of Common Law Spouses in Canada
Right To Know ................ 24 Week
Commentary ................... 17 Lien Limitation Period
Appointments ................. 27
Commentary ................... 20 Occupational Health & Safety Update
Commentary ....................13 Proposed Regulatory Framework Respecting Security Holder Rights Plans
Pro Bono Spotlight ...... 23 Saskatchewan Celebrates National Pro Bono Week
Kaylea Dunn McKercher LLP BarNotes Editorial Board
Azure-Dee Farago
Heather Sherdahl
Postcard from a ........... 28 Lawyer: Do you love to fly?
Commentary ................... 18 Meet the Office of Public Registry Administration
Commentary ................... 11 The Whatcott Decision
BarNotes Editor
National News ............... 25
Calendar of Events ...... 31
Front Cover Acknowledgements 2013 Winter Collage
Danielle Graff
Ashley Smith
1. City Streetscape
4. A Frosty Window
Brenda Hesje
Kayla Stuckart
by Brenda Hesje
by Brenda Hesje
Brad Mitchell
Anita Wandzura
Canadian Bar Association Saskatchewan Branch 306, 105-21st Street East Saskatoon , SK S7K 0B3 BarNotes is a quarterly publication of CBA Saskatchewan, provided to its members. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel. CBA Saskatchewan represents more then 1,100 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice.
www.cba.org/sk BarNotes Advertising BarNotes is published 4 times per year and circulated
to over 1,100 legal professionals. If you are interested in advertising, please contact Brenda Hesje, Executive Director, (brendah@cba.org).
5. South Saskatchewan River
2. Woodpecker on the Birdfeeder
by Adrienne Perrot
by Lorraine Coulman 3. Hoar Frost by Brenda Hesje The BarNotes Editorial Board invites member submissions of Saskatchewan pictures for future cover collages. Please include a brief note or title for your picture and send all submissions to Brenda Hesje (brendah@cba.org).
Join Our Online Community CBA Saskatchewan has entered the digital era and is in the process of building its online community. Please join us online to stay up to date on events, our advocacy issues and more. /CBAsask
/CBA_SK
Visit our website for more information on advertising costs and format.
Š CBA Saskatchewan
Page 2
BarNotes l Winter 2013
EDITOR’S NOTES CBA Futures Initiative – Join the Conversation Kaylea Dunn McKercher LLP As some of you may have noticed, artistic-types are rather pessimistic about what the future holds for our civilization. According to Leonard Cohen’s aptly named tune, “The Future”, he has seen it, and it’s “murder.” That Nostradamus fellow was a real hoot, with all of his predictions of war and pestilence and world-ending. About two years ago, my book club decided to give George Orwell’s 1984 a try, and while I normally read just before bed, I had to revise that practice for the novel, as I kept waking up at night, thinking someone was watching me. Cinema provides the richest supply of cynicism. From 2001, a Space Odyssey to The Terminator series to Bladerunner, movies about the future aren’t exactly a light-hearted romp. The trend is continuing too: the premise of The Hunger Games (children pitted against children in a televised death-match) doesn’t exactly warm the cockles of the heart. I suggest some post-apocalyptic films be avoided like the plague (à propos, since most of the films actually depict a plague). When I was about a week overdue with my first daughter, I was convinced to watch I Am Legend. Oddly enough, I went into labour a few hours later, and can honestly say that giving birth was a more cheerful process than watching the film. I could go on listing bleak futuristic books and movies, but suffice it to say that aside from a short list of 1980s offerings (think Short Circuit, Back to the Future or Bill & Ted’s Excellent Adventure, with its central, timeless directive to “be excellent to each other”), movies about the future are thoroughly depressing. So what about the future of law? What do you see? Lawyers can be pretty good at pinpointing what we do not like about our practices, but stretching ourselves (and our peers and colleagues) to create a new paradigm is an unwieldy task. Who manages to pause from the fray for long enough to notice that our clients and our communities are beckoning to us to evolve? And how do we actually respond to the call? To say that this requires us to think outside of the box is an understatement for the ages. The good news is that the CBA is trying to gently take our hand and help us down this path. In fact, it has started a whole initiative to explore the future of the legal industry. Fred Headon, the CBA’s National President, wrote about this in the Fall issue of BarNotes, and visited Saskatchewan’s fall Council meeting to speak on this initiative. I expect that many of you have not yet seen any tangible trace of the work being done as part of the initiative, and so if you are curious, just go to www.cbafutures.org. I encourage you to take a few moments BarNotes l Winter 2013
to really look at the site, and to spend some time really thinking about the future of our profession. On the site you can take a poll (“Is the billable hour dead?”) and explore reports on a wide range of topics, including “Innovations in Legal Services: 14 Eye-Opening Cases” and “Demographic Trends” (which anyone involved in recruiting, retention and succession-planning should read). Another report explores “The Clients’ Perspective,” and so if innovation or demographics aren’t your cup of tea, don’t you want to know what the clients surveyed for the report had to say about us? For twitterers, follow the initiative - @CBAfutures - and while you’re at it, you should follow @CBA_SK and @CBA_News, too! Before signing off for these Editor’s Notes, I want to very much thank our Winter BarNotes contributors for their wonderful submissions. This Winter issue is distributed to all Saskatchewan lawyers – not just CBA members, and we were fortunate to receive submissions displaying the quality of homegrown content that we offer members four times a year in this magazine. If you are reading this and are not a member, please consider joining! And finally, whether you are a member or not, please peruse the 2014 Mid-Winter Meeting Brochure inside this issue, register and attend to get some CPD hours, and to see colleagues from across the province.
Read the Reports mentioned in this article: Innovations in Legal Services: 14 Eye-Opening Cases http://bit.ly/CBA14cases Demographic Trends http://bit.ly/CBAdemos The Clients’ Perspective http://bit.ly/CBAclients
Page 3
BRANCH ACTIVITIES President’s Message Kylie Head Ministry of Justice It has been a busy fall for your CBA Executive Committee!
Provincial Council Meetings I was thrilled to see both the increased attendance and active participation at both of our fall Council meetings. The attendance was the highest that I can recall in recent years. As promised, we reduced the amount of Executive reporting time and increased the interactive component of the meetings. In October, we heard from our National President Fred Headon on the CBA Legal Futures Initiative and lawyers in attendance had the opportunity to provide their input on the initiative. Our November Council meeting featured the two candidates for CBA National Second Vice President. In addition, Judge David Arnot, Chief Commissioner of the Saskatchewan Human Rights Commission, provided an update on the implementation of the changes that were made to the Human Rights Code. Future Council meetings will focus on discussion topics such as public relations/professional image and rural initiatives. We welcome suggestions from Council members as to what specific topics you would like to see discussed.
Future of the Legal Profession The consultative phase of the CBA Legal Futures Initiative is well underway. Each Tuesday in October and November, lawyers could participate in FuturesChat on Twitter. Using Twitter as the forum for discussion especially encouraged participation by younger members of the profession. Lawyers from across Canada spoke up with their views on topics. In October, we discussed the primary objectives of legal education, the future of the articling system, necessary changes to legal education, how we can improve access to justice, and how to achieve a more equitable representation of historically under-represented groups. In November, the topics included legal business structures, technology and innovation. Summaries of past chats are available online (cbafutures.org) for those who wish to see the discussion. Those of us on Twitter can continue to participate in the discussion at #cbafutures. For those not on Twitter, I encourage you to participate in this consultative process online (cbafutures. org), or email cbafutures@cba.org. The consultation phase of the Legal Futures Initiative concludes in December so speak up now on the future of law in Canada!
Activities for Students at the College of Law I had the opportunity to meet many students at the College in September. On September 12, I participated as a “cloaker” in the
second annual First-Year Welcoming Ceremony. First-year law students were presented with a black academic gown, symbolic of the beginning of their journey into legal studies. To conclude the ceremony, the students recited a commitment that included a pledge of “sharing the knowledge and skills I will acquire through the study of law by positively contributing to society – locally, nationally or globally.” On September 19, I returned to the College and brought greetings at the CBA Wine & Cheese Reception, which was well attended by students., faculty and lawyers. Eighty-nine students filled out CBA membership forms at the reception - a new high for our Branch. This event offers a wonderful opportunity for students to practice their networking skills in an informal environment. About half of the attendees were first-year students, with many basic questions about both law school and the profession. They were grateful to have the opportunity to talk with the CBA Council members in attendance and their only wish was that a few more lawyers would attend in order to enable more students to speak individually with lawyers. This event has been open only to Council members in the past but next year we will be opening the invitation to all CBA members. Students were also given the opportunity to sign up for the Branch Mentorship Program at this reception. The Mentorship Program provides a forum for practicing lawyers to share their experiences and knowledge about the practice and the process of becoming a lawyer, and to provide general career advice. A “Meet Your Match” Reception was hosted by the CBA on October 17. We are pleased to report that we matched 90 mentor pairs this year. CBA Saskatchewan has also contributed to the College’s Rural Initiatives Program, sponsoring the program with $2,500 to visit rural firms across the province in an effort to encourage students to practice in Saskatchewan after their studies. If your law firm would like to take part in this initiative, I encourage you to contact our Branch.
Dean’s Forum on Dispute Resolution On September 20 I represented the CBA at the “Dean’s Forum on Dispute Resolution”. This meeting brought together many participants working inside the justice system from various vantage points – the Courts, Saskatchewan Justice, the College, Legal Aid, the Law Society, and Collaborative Lawyers of Saskatchewan, among others – to discuss the future of dispute resolution. This conversation naturally evolved over the course of the day into access to justice and the future of the profession more generally. It is anticipated that the work of this Forum will be ongoing.
Page 4
BarNotes l Winter 2013
BRANCH ACTIVITIES Improving access to justice is one of the CBA’s primary mandates. In my last President’s Message I mentioned the CBA’s “Envisioning Equal Justice” initiative, which released an executive summary report in the fall. The final detailed report, “Reaching Equal Justice: An Invitation to Envision and Act”, will be released by the CBA later this year.
Active Legislation and Law Reform Committee One of the CBA’s strengths nationally is the credible voice that it brings to the federal legislative consultation process. Our Branch is working hard to build our strength in this area at the provincial level. The Branch has recently been involved in reviewing consultation materials for Regulations being created pursuant to The Saskatchewan Employment Act, The Consumer Protection and Business Practices Act, and The Pooled Registered Pension Plan (Saskatchewan) Act. We have also encouraged members to participate in a review of The Surface Rights Acquisition and Compensation Act which was underway in November.
Get Involved We are actively seeking volunteers for the following opportunities: • The BarNotes Editorial Committee is seeking members from outside of Regina and Saskatoon; • Elected members of Council - two from the Northeast Electoral District, one from the Southeast Electoral District, and two from the Southwest Electoral District; • Media contacts - individuals from active Sections who are interested in serving as key media contacts for the Branch. (Prior to serving as a media contact, individuals will be required to participate in a day long media session). Your Executive Committee is here to serve the members. Please feel free to contact me at any time.
Contact Kylie: 306.787.5224 // kylie.head@gov.sk.ca
Here & There... 6th Annual President’s Dinner CBA Saskatchewan President Kylie Head hosted this year’s President’s Dinner at the Saskatoon Club on November 20th. All CBA Past President’s from Saskatchewan were invited to attend. All in attendance enjoyed a relaxing evening, reminiscing and visiting with colleagues and friends.
President Kylie Head presented Past President, Heather MacMillan-Brown, QC, with her President’s Pin, while Justice Ron Mills (one of the CBA’s most veteran Presidents in attendance) brought nostalgic remarks of what it was like to serve as CBA Saskatchewan’s President in 1990-1991.
President Kylie Head with Past Presidents at the 6th Annual President’s Dinner. Back (L-R): Judge Hugh Harradence (99/00); Mark Brayford, QC (95/96); David Thera, QC (11/12); Murray Sawatzky, QC (08/09); Christine Glazer, QC (98/99); Justice Ron Mills (90/91); and Bill Wardell, QC (80/81). Front: Gary Young, QC (88/89), Heather MacMillan-Brown, QC (12/13), Kylie
Head
(13/14);
Michelle
Ouellette, QC (07/08); and Bob Thorton, QC (94/95).
Continued on Page 6...
BarNotes l Winter 2013
Page 5
BRANCH ACTIVITIES Zenith Award CBA Saskatchewan is happy to announce that our President, Kylie Head, and CBA member, Susan Barber, QC (with McDougall Gauley LLP), were recognized with a 2013 Lexpert Zenith Award: Celebrating Women Leaders in the Legal Profession. This year, the Zenith Award honoured female lawyers from across Canada who demonstrate leadership for their clients, firm, profession or community. Congratulations, Kylie and Susan!
Advisory Board members from Thomson Reuters Canada Ltd. presented Kylie (left) and Susan (above) with their 2013 Lexpert Zenith Awards during an Awards Reception held in September, in Toronto.
Page 6
BarNotes l Winter 2013
Invitation to attend 2014 Mid-Winter Meeting Jordan Hardy MacPherson Leslie Tyerman LLP The Annual Mid-Winter Meeting will take place on February 6th and 7th, 2014 at the Delta Regina and I am very pleased to extend an invitation to all of you on behalf of the planning committee. The Mid-Winter Meeting provides an excellent opportunity for Saskatchewan lawyers to gather together and learn. Of course, your attendance can also earn the full required annual Law Society CPD credit hours. However, of equal or greater importance, is the chance to rub shoulders with colleagues and enjoy our profession’s talent and rapport. This year’s line-up of speakers and presentations is varied and exceptional and we are confident that each of you will find something of interest. This CBA event takes place for the benefit of its members and as such, the cost continues to be a real bargain. The educational program begins on Thursday, February 6th with an Opening Plenary Session with John Pozios, from the University of Manitoba, discussing “The Hollinger Saga: Lessons Learned”. This will be followed on Thursday by five streams of educational sessions in the morning and four streams in the afternoon. The traditional Thursday night social event will take place at Beer Bros. Gastropub. The theme will be “Unbillable Time” and will include an evening of custom appetizers, refreshing liquids, fun challenges and good cheer, sponsored by the Regina Bar Association. Friday’s session will begin with an address from the Minister of Justice for Saskatchewan, followed by the Dean of the College of Law. The President’s Forum with Marilyn Poitras will follow and will consider the always challenging
topic of “Law and Happiness”. Four streams of educational sessions will run throughout the day on Friday, which will also include the Distinguished Service Award Luncheon where the aforementioned award will be presented by CBA Saskatchewan to a recipient who has exemplified dedicated service to our profession and its members. We are also pleased to offer an Ethical Closing Plenary Session on Friday afternoon, presented by Ralph Hildebrand. A full line-up of Exhibitors will be present throughout the two day event and all of you are encouraged to visit their booths and learn more about their excellent wares and services. The Law Society of Saskatchewan has approved the educational program for credit for 12 CPD hours, including 10 ethics hours. I want to also take this opportunity to thank our sponsors for their support, as well as the CBA Saskatchewan Branch Staff (Brenda, Kayla and Lorraine) for all of their hard work in helping put this event together. I also want to extend my appreciation to our exceptional committee members: Jana Linner, Neil Robertson, QC, Jerome Tholl, Angela Eiffert, Angela Ottenbreit, Lora Bansley, Nicholas Cann and Will Egan for all of their efforts.
We look forward to seeing you at the Mid-Winter Meeting!
Bar Judicial Council
Registration This year, conference attendees can pay via credit card by registering online! Registration opens December 2nd.
CBA Member Conference Rates:
$400
BarNotes l Winter 2013
Michelle Phone: 306.664.1344 Email: m.ouellette@mckercher.ca
Visit www.cba.org/sk
2-Day Pass
Members are invited to contact Michelle Ouellette, QC, or Jennifer Pereira regarding issues of concern that could be raised at future Court of Queen’s Bench Bar Judicial Council Meetings. Members are also invited to contact Michelle Ouellette, QC, or Tiffany Paulsen, QC, regarding issues of concern that could be raised at future Court of Appeal Bar Judicial Council Meetings.
1- Day Pass
$250
Jennifer Phone: 306.933.1320 Email: j.pereira@rslaw.com Tiffany Phone: 306.933.1317 Email: t.paulsen@rslaw.com
Page 7
COMMENTARY Collaborative Law in an Urban/Rural Setting Randi Arnot Arnot Heffernan Slobodian
The Greater Challenge Has Been Made Justice Thomas Cromwell of the Supreme Court of Canada has challenged each of us with a call to be a part of the collaborative solution to Canada’s “serious and pressing problem with access to justice”. As chair of the Action Committee on Access to Justice in Civil and Family Matters he has spoken at a number of venues across the country urging a deep commitment to meaningful change, and recognizing a long term sustained effort is needed to achieve success. Collaborative Law Practice is one approach to addressing the stated need to improve access to civil and family justice. “Justice” is said to include access to information, knowledge, and resources so as to effectively deal with a dispute. I see many attributes in the Collaborative Law Practice which address stated needs to provide our expertise and do so by: 1) empowering clients to take responsibility for outcomes; 2) centering the process to meet the needs of the clients, integrating a multidisciplinary model; 3) allowing clients to be heard; and 4) tailoring the process to be in proportion to both the needs of the clients and the complexity of the case – all of which are stated goals of the report entitled “Meaningful Change for Family Justice, Beyond Wise Words”, December 19, 2012. This is the report from the Family Justice Working Group of the Action Committee, chaired by Justice Cromwell. I see these four desired goals as answering the client’s question “what does Collaborative Law practice mean, and why would I choose this process?” I also see some of the challenges and the reality of the need for a long term sustained effort.
currently helping my clients. We do have a multidisciplinary dialogue ongoing. We are already beginning to consider the greater challenge that has been issued. I understand this is just the beginning, but it feels good to start. “I was never ruined but twice, once when I lost a law suit, and once when I won one.” -Voltaire || “The only successful lawsuit is that worn by a policeman” -Robert Frost It seems the theme is not a new one then, as Voltaire wrote in the 18th century. I don’t believe his intended audience was solely the disenfranchised or lower classes. I also know it is not accurate to assume today that a law firm’s wealthiest clients have never shared those sentiments. Still my first thought, somewhat tongue in cheek, was to wonder “were you self-represented Voltaire?” However, we are repeatedly told there are more and more self-represented people and that this is part of the reason the many questions surrounding access to justice are reaching more complicated cases and higher courts. If we are not concerned our own clients are unhappy with everything litigations does or doesn’t do, we should at least be concerned that the rise in numbers of self-represented litigants certainly does put all our clients at risk of intolerable delays and increased costs. If the opposing party does not see the value of having legal representation, your client is adversely affected. We know that.
Attributes
What I mean by “Collaborative Law Practice” Collaborative Law Practice began in the context of the justice system’s approach to families and has been slower to develop in I know that even within the litigation model, many of us describe other areas of civil litigation. In Saskatchewan, the Collaborative our negotiations as being “collaborative”. I am referring to a Law Practice is still almost exclusively “lawyer based”, rather very specific model of alternate dispute than multidisciplinary. Those of us outside resolution. Each party, each lawyer, and “I was never ruined but of Saskatoon and Regina have added each collaborative professional assisting challenges of: 1) creating a critical mass twice, once when I lost a the process signs a contractual agreement of lawyers in our region who are truly which includes provision for: full disclosure; law suit, and once when I committed to the process; and 2) building respectful communication; sharing outside -Voltaire won one.” relationships with accountants, financial experts where necessary (e.g. real estate planners, mental health professionals who appraisers, business appraisers, vocational evaluators); and the recognize the benefit of providing a multidisciplinary team for promise that neither party will seek or threaten court action the public we all serve. during the process. Good things come to those who wait. Although I am challenged by the size of the geographic area that is Saskatchewan, I am encouraged by the expressed interest in my own community among financial and mental health professionals who are
As I will outline below, in Saskatchewan the process is still primarily “lawyer-client”, however, in other jurisdictions collaboratively trained accountants, financial planners, and mental health
Page 8
BarNotes l Winter 2013
COMMENTARY specialists are called in as part of the team, depending on the needs or complexities of the case. In my own community, there is a growing interest expressed by these other disciplines to develop a multidisciplinary approach which I will describe further below. The role of the lawyer includes respectful communication, analysis of the options both parties are exploring, advising their own client, providing legal information as a team. Further, they do not take advantage of any miscalculation or inadvertent mistake. Instead, these would be identified and corrected. This is not the same as a 4-way meeting within a litigation model, and it’s not the same as a “cooperative” meeting. The cooperative approach is generally based on a “scarcity” mind-set and the parties and their lawyers negotiate on the basis that “the pie is only so big” and they are taking steps to protect their share. A collaborative approach is based on an “abundance” mind-set and the idea that working together, we can create “a bigger pie” and maximize outcomes for both parties. One of the many valuable skills the lawyer brings to the table is the ability to assist clients in finding those value-added options that address what is important to these particular clients. The lawyer is the expert with respect to legal analysis, but also with respect to understanding what these other interests are and helping the client to both express them, and consider alternate ways to meet these needs. When people have difficulty agreeing on substantive issues it is
often not because they are unable to do the math. Clients in the middle of a dispute are feeling the effects of high level of stress which does impact their ability to analyze problems. At a Pre-trial Conference it is not unusual for a judge or lawyer to explain to a client that they “just need to make a business decision here”. For the client, that’s not at all their perception. A strict legal analysis is not going to deal with the emotions that are triggered or the effect on the client’s ability to reasonably consider those prudent business decisions. The lawyer is then frustrated that the clients will spend sometimes thousands of dollars arguing over a $200 appliance. Many of us had made comments like “I tried to tell my client they could just go to Canadian Tire and buy one for less money than they are paying to argue over this, but they can’t seem to hear me”. It’s true. The client really can’t make the best use of the lawyer’s time and advice due to factors that really are not dealt with in litigation. If you are assuming that I am speaking only in terms of family law, lawyers who deal with disputes among shareholders do know that there is a lot of emotion each of us has tied to financial issues. Any dispute, by definition, has some level of conflict and the participants do have very human responses to the conflict. One of the emails I read the other day was from a lawyer who uses alternate dispute resolution indicating that they became confident they would enjoy using this process in the future when they were able to settle a civil litigation file that had been in the courts for three years. The alternate dispute resolution helped the parties to resolve the issues within a number of hours. It was a new experience for this particular professional.
Why Multidisciplinary? I am excited that there is a growing level of interest in my own community on the part of financial planners, and mental health professionals. Although I have some basic techniques for assisting my client with the level of stress, I do not have the depth of ability that a counsellor can use to help the client get into better shape to work with me and to help me explain the impact of a number of different options. They are not providing therapy. Their primary role is to work with the client to provide techniques most effective for that individual to cope with a high level of stress brought on by the conflict, and to help them communicate more effectively. The financial expert can be of assistance in cases where your client needs more and better information and feels the other party is in a stronger position because of their own lack of information and understanding. As a lawyer, I appreciate the input from financial planners and tax experts to help me design more and better options for our clients. The lawyer can take the information and better equip themselves to analyze options and also draft the agreement. The multidisciplinary approach gives the parties the ability to use an “economy of scale”. The information from the other professionals is exchanged among the clients and lawyers quickly, and labour is diversified to give each professional an opportunity to add expertise to the negotiations. Obviously, there is a benefit of cross-referrals from more and possibly better referral sources. The Collaborative Law Practice recognizes that only the lawyer can do the lawyer’s job. Continued on Page 10...
BarNotes l Winter 2013
Page 9
COMMENTARY Continued from Page 9...
Challenges Getting Your Practice Started Event if you have the Collaborative Law training, it is a challenge to get a collaborative practice going when you are in a smaller centre. The initial client meeting is a key opportunity to explain to the client what the Court does, and perhaps even more importantly, what the Court does not do. At my initial meeting with a client I do spend a considerable amount of time. I review with the client the full spectrum of how matters can be resolved, from the parties themselves simply discussing the matter and coming to agreement to litigation being at the other end of the spectrum. In between are various forms of alternate dispute resolution and also the traditional lawyer-to-lawyer positional negotiating. I discuss at length the processes within each choice to obtain information from the other party, as well as realistic time frames of each process, and some expectations with respect to costs. There are screening tools available to Collaborative Law professionals. A particular case may be best served by a particular model of resolving disputes. No one process is the only process that should ever be used to resolve disputes. The lawyer plays a valuable role in each, and the expertise of the lawyer with respect to knowing the law itself, the procedures within each process, and being able to meet the client’s need for help in evaluating outcomes. I do not focus primarily on the fact that the Collaborative Law agreement states that if no agreement is reached, the lawyers will be disqualified from continuing with the case. I do point this out, but I don’t see that as the defining element of the process. I do point out that both parties and lawyers have incentive to problem solve. On the other hand I do not “sell” people on the Collaborative Law process. I do my best to fully and fairly explain the reality of each of their choices and hope that they leave my office feeling well informed. I am aware that as lawyers we do tend to bombard people with information at a time when they are under extreme stress, and I assure my client that it is normal to expect that they may want to give me a call after they have thought about the options, and that it is perfectly normal if they feel they have not fully understood how this relates to their situation. Most people are relieved to know they can give me a call and I will not expect them to have a full memory of everything we have discussed. When you are first starting to use your skills, I do think it is helpful to start with a case that is not complex. It is also helpful to let collaboratively trained lawyers in your region know that you would like to do more collaborative work and are prepared to travel to do so. As you build confidence in yourself and your new skills it will become easier. Remember that alternate dispute resolution is for cases where there is conflict. The processes are meant to deal with all levels of conflict. Your client will often be angry. They may feel they have
been tricked, bullied, or unfairly treated by a customer, colleague, or their spouse. It’s natural they would be angry. Anger can help clients to express their needs and understand why they haven’t resolved the conflict on their own. There is also emotional anger which can cause people to focus on revenge or punishment, and ultimately be very destructive. As a lawyer, I do not pretend that I have the same expertise as a conflict coach will have. I am aware that the Court will not necessarily even want to hear about the things my client really wants to say. It will depend on the type of dispute and what a legal analysis will allow when arriving at a remedy. I have included the “willingness to travel” as a suggestion because I know that there are some collaborative lawyers who are spread out throughout the province and travel is a reality for them. I have also heard people describe feeling far away from practice groups. If you are beginning to develop your collaborative process and skills, I do think it is helpful to search out colleagues who have a good deal of experience and a significant network to assist you. They can make the travel more than worth it. Another significant hurdle is often the fact that you have no control over who the opposing party will choose for a lawyer. In the event they choose a lawyer who does not have the training, this will limit your own client’s options. The other hurdle may be that the other lawyer does have the training, but does not yet have the confidence in the process. A number of collaboratively trained lawyers who are not using their skills will often report that they explain the process to their client but “my client did not want to lose me as their lawyer”. It might be helpful to discuss with lawyers who have successfully built a collaborative practice how they achieved that. It is also helpful to become a member of networks such as the Collaborative Lawyers of Saskatchewan Inc. and the International Academy of Collaborative Professionals. Even if you only attend the spring Annual General Meeting of the Collaborative Lawyers of Saskatchewan Inc., you quickly develop a network of colleagues, and have the opportunity to take part in workshops to keep your skills and software up to date. The International Academy of Collaborative Professionals meets in North America each October. Attending an international conference may re-energize you, and help you to understand the multidisciplinary nature of the practice in other jurisdictions. It gave me a vision of what could be in Saskatchewan. If you have a tendency to present the process to your client in somewhat of a negative light, you may be underestimating your own success rate. One strategy is to find lawyers you know you are comfortable working with and with whom you have a level of trust. After a successful negotiation, confidence rapidly builds. Encouragement from senior practitioners in the firm is very helpful. Likely as a senior practitioner you have invested in the training the lawyers in your firm have obtained. Accordingly, you have an interest in seeing that investment develop and be able to provide your clients with both interest-based negotiators and the traditional positional bargainers. Consider what more you could do in terms of public education in
Page 10
BarNotes l Winter 2013
COMMENTARY your area. One of the many benefits of belonging to the provincial and international organizations is the availability of up to date precedents, support, updated training, and negotiation tools to assist your clients. Of course, social media may be a good way to contact your referral sources, and LinkedIn does provide you with access to a number of discussion groups. These discussion groups produce a number of articles to help your client.
Conclusion It’s clear that the public does want help from you with making choices about how to proceed, be it litigation, positional-based bargaining, or interest-based negotiation. Today’s family law practitioner is legally required to do so. I would go so far as to say that law firms without lawyers who have the added skills risk losing clients to other professions. Unfortunately, public perception of what lawyers do, how lawyers proceed, what motivates the lawyer, and whether or not what we provide has value is not always flattering or accurate. Partly this is due to lack of knowledge and understanding of what you as a lawyer do for your client. As a profession, I believe we have to take some of the responsibility for the fact that the general public will sometimes express distrust for lawyers, but at the same time seem to be proud when one of their sons or daughters chooses to become a lawyer. If given the opportunity, you do develop a close working relationship with your clients, and they do come to trust and value you. However, you first have to be given the opportunity to develop that relationship.
Obviously the quotes from Voltaire and Robert Frost indicate that the negative perception of what the lawyer provides is not something new. What is relatively new, is the development of “the information age” and the misplaced belief that “if I can look it up, I really can do it myself”. We are hearing from the courts at all levels that there really is an increase in the number of selfrepresented litigants. We are also told that they are often people who could easily afford lawyers. I don’t mean to undermine any of the programs that are addressed to provide more and better access to justice for people who really do have financial barriers. Neither Voltaire nor Robert Frost had the full spectrum of alternate dispute resolution that we provide to our clients today. This is something new our profession has developed. All the positive steps we as a profession have taken to discuss and address the access to justice issues are steps of which we should be proud. I don’t have to convince you that the work you do is valuable and best done by you because of your legal expertise. I do think as a profession we still have a long way to go to do a good job of educating the public. I am sure that you recognize that the statements of Justice Cromwell are true in that there is a “long term sustained effort” required to succeed. I hope you are also proud of the steps that we, as a profession, have taken and of the vision we share to provide excellent service to the public.
The Whatcott Decision: Freedom of Expression or Freedom from Hate Grant Scharfstein, QC Scharfstein Gibbings Walen & Fisher LLP On February 27, 2013 the Supreme Court of Canada (“SCC”) delivered a unanimous judgment dealing with the issue of free speech and the dissemination of hate in the case of Saskatchewan Human Rights Commission v. William Whatcott (“Whatcott”). This case attracted the largest number of interveners in the Supreme Court history, some 26 interveners. I was fortunate enough to represent the appellant, the Saskatchewan Human Rights Commission (“SHRC”), before the Supreme Court. Why the interest in this case and what is, or will be, its importance in Canadian jurisprudence? First, some background.
BarNotes l Winter 2013
In 2001 and 2002 Whatcott distributed four flyers in Saskatoon and Regina on behalf of a group called the Christian Truth Activists. The flyers were virulently anti-gay. Phrases such as “two men to sodemize each other; sexual politics of the perverted type; share their filth and propaganda; ex-sodomites and other types of sex addicts; proselytize vulnerable young children, and our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong” were used to express Whatcott’s views. Four individuals filed complaints with the SHRC which ultimately led to Whatcott being charged with violating Section 14(1)(b) of The Saskatchewan Human Rights Code (the “Code”). Section 14(1)(b) prohibits the publishing and displaying of any material “that exposes or tends to expose to hatred, ridicules, belittles or Continued on Page 12...
Page 11
COMMENTARY Continued from Page 11...
otherwise affronts the dignity of any persons or class of persons on the basis of a prohibited ground” of which sexual orientation is one.
After a thorough discussion of hate speech and the effects of hate speech the SCC revised the definition of hate to the following: …the legislative term “hatred” or “hatred and contempt” is to be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of offensive, deligitimization and rejection that risks causing discrimination or other harmful effects.
The Saskatchewan Human Rights Tribunal found Whatcott’s flyers in violation of s.14(1)(b). On appeal to the Queen’s Bench, Justice Kovach upheld the Tribunal’s findings. The “Hate speech is, at its Saskatchewan Court of Appeal reversed the Queen’s Bench decision and held that the core, an effort to marginalize flyers did not violate s.14(1)(b) of the Code.
individuals based on their membership in a group.”
The SCC granted leave to the SHRC to appeal the Court of Appeal decision. The overall issues being argued pitted the supporters of freedom of speech and freedom of religion arguments against those supporting limits on those freedoms to eradicate the dissemination of hate.
The SCC dealt with the following issues: (i) Does Section 14(1) (b) of the Code violate Sections 2(a) and (b) of the Charter, the freedom of religion and the freedom of expression? (ii) If so, is Section 14(1)(b) saved under Section 7 of the Charter as being reasonably justifiable in a free and democratic society? (iii) If Section 14(1)(b) is enforceable, were the flyers distributed by Whatcott hateful, such that they violated Section 14(1)(b)? The SCC unanimously determined that: (i) Section 14(1)(b) of the Code violates Sections 2(a) and (b) of the Charter; (ii) Section 14(1)(b) (with some revisions) is saved by Section 1 of the Charter as being justifiable with a free and democratic society; and (iii) Two of the four flyers distributed by Whatcott were hateful and violated Section 14(1)(b) of the Code. In coming to its unanimous decision the SCC, to a large degree, maintained the legal status quo in Canada by upholding its previous decision in Canada (Human Rights Commission) v. Taylor from 1990. In making its determination the SCC has refined the definition of ‘hate’ in Canada. The Court discussed fully the hallmarks of hate and the effects of hate. “Hate speech is, at its core, an effort to marginalize individuals based on their membership in a group” And, further “hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society”. The SCC reconfirmed its discussion in Keegstra and held that “hate speech always denies fundamental rights”.
The SCC went on to determine that Human Rights Commissions are a proper and appropriate forum in which the determination respecting the dissemination of hate can be made.
Finally, the SCC determined that two of the four flyers distributed by Whatcott were hateful. In doing so the Court stated: “Whether or not Mr. Whatcott intended his expression to incite hatred against homosexuals, in my view it was reasonable for the Tribunal to hold that, by equating homosexuals with carriers of disease, sex addicts, pedophiles and predators who would proselytize vulnerable children and cause their premature deaths, Flyers D and E would objectively be seen as exposing homosexuals to detestation and vilification”. In Whatcott, the SCC has set the course for Canadian society for the foreseeable future. Canada will be a country where the law will not allow for the dissemination of hate speech in a society where multiculturalism and respect for one another should be the norm, and the goal to strive for. But freedom of speech is still fundamental in Canadian society, subject, in part, to the parameters outlined in Whatcott. Politically there is another story. Whether Provincial and/or Federal governments wish to enact and enforce legislation similar to our Section 14(1)(b) is very much an open issue at this stage. In fact, the Federal government has recently repealed the equivalent section of the Canadian Human Rights Code. Other provinces have not enacted such provisions. The debate continues.
Bar Judicial Council Members are invited to contact George Green or Bonnie Missens regarding issues of concern that could be raised at future Provincial Court Bar Judicial Council Meetings. George Green
The SCC also clarified that, in determining whether something is hate speech, the feelings of the publisher or victim are not the test. The test is objective. What is the likely effect of the hate speech on how individuals, external to the group, might reconsider the social standing of the group?
Phone: 306.664.1283 Email: g.green@mckercher.ca Bonnie Missens Phone: 306.477.7539 Email: bonnie.missens@siga.sk.ca
Page 12
BarNotes l Winter 2013
COMMENTARY Proposed Regulatory Framework Respecting Security Holder Rights Plans: What does it mean for Saskatchewan? Milad Alishahi and Lynn Hnatick MacPherson Leslie Tyerman LLP In March 2013, the Canadian Securities Administrators (“CSA”) published for comment proposed National Instrument 62-105 Security Holder Rights Plans (“NI 62-105”). In addition, the CSA published proposed changes to two national policies and consequential amendments to several other instruments and rules. These proposals seek to create a new regulatory framework in respect of security holder rights plans (“Rights Plans”). Rights Plans are defensive measures taken by target companies to provide them with more time to seek alternate competing bids. Rights Plans are sometimes referred to as “poison pills”, set up prior to a takeover bid to assure that takeovers occur on the target companies’ terms. Generally, Rights Plans involve a scheme whereby security holders, excluding the hostile bidder, have the right to purchase additional voting shares at a discounted rate. These plans are typically triggered when a hostile bidder acquires 20 per cent of the target companies’ shares. The idea is that the threat of diluting the hostile bidder’s interest will encourage them to give more time for a target company to consider the bid and seek competitive bids. The current approach of the CSA in relation to Rights Plans is based on National Policy 62-202 Take-Over Bids – Defensive Tactics (“NP 62-202”) and decisions made by the securities regulators under their “public interest” jurisdiction. NP 62-202 regulates a broad range of defensive tactics used by target companies and does not specifically address Rights Plans. Securities regulators have taken the general principles of NP 62-202 concerning takeover bids and applied them to consider whether or not to cease trade Rights Plans. The predominant issue at regulatory hearings typically concerns how much additional time a target company board should have to solicit competing bids beyond the minimum period required (currently 35 calendar days). The issue at regulatory hearings has not been if the regulatory body should cease trade a Rights Plan, but when to cease trade a Rights Plan. NI 62-105 would allow Rights Plans to remain in place provided that security holder approval is obtained within 90 days after the Rights Plan is adopted and at every annual meeting of the company following the initial security holder approval and the plan is not terminated by security holders. If a plan is adopted after a takeover bid has been announced, security holder BarNotes l Winter 2013
approval must be obtained within 90 days after the date of the commencement of the takeover bid. Opponents of the current takeover regulations suggest that the amount of discretion, as a result of the lack of regulatory guidance on Rights Plans, has discouraged potential bidders from seeking to takeover companies with inefficient management. Others suggest that the securities regulators should have discretion and liberty to decide on a case-by-case basis the merit of a Rights Plan - the NP 62-202 provided just that. Saskatchewan’s recent history regarding takeover bids has sparked much debate around takeover bids and the benefits that they may or may not provide to security holders and the Saskatchewan economy. To understand both the benefits and detriments of regulating Rights Plans, it is important to consider the motivations behind hostile takeover bids. There may be several motivations behind a hostile takeover bid. Some takeovers might be socially beneficial, for example a large technologically advanced oil and gas company may be seeking to acquire a small inefficient oil and gas company, to more efficiently exploit scarce natural resources and create greater revenue. However, it is more likely that the primary factor for hostile takeovers are to gain economic benefits stemming from, what is perceived in the mind of the bidder as, inefficient management. As a result, the current management of a target company is often uncooperative in an attempt to retain their positions. Defenders of Rights Plans argue that they encourage competitive bids, so that security holders will get the best price possible, benefiting both the target company and security holders. Others argue that the threat that management may be replaced through a hostile takeover encourages them to do their jobs productively. In contrast, Rights Plans discourage takeover bids allowing inefficient management to maintain their positions. There is no doubt that companies in Saskatchewan are becoming more and more attractive for both domestic and international companies, for a variety of reasons. It remains unclear whether or not the proposed changes by the CSA will obstruct or encourage takeover bids; however, it is clear that a more comprehensive regulatory framework in respect of Rights Plans will likely bring more consistency and certainty for both the bidder and the target company in takeover situations.
Page 13
Reduce paper. Reduce clutter. {It’s the office gift that keeps on giving.} Using less paper is good for the environment — and for your office workflow. Used for virtually all types of Land Registry transactions (excluding condo transactions), ISC’s Online Submission (OLS) eliminates the need for form-based packet submissions, allowing you to fully complete Land Registry submissions online.
OLS can prOvide yOur Law firm with: 3 Reductions in manual data entry 3 Validated information prior to submission 3 Improved office workflow Plus, you’ll save on paper, ink and postage! Think of all the time and paper you’ll save not having to fax a submission. To find out more about what Online Submission can do for your law firm, visit www.isc.ca/onlinesubmission or call 1-866-aSK-iSc1 (1-866-275-4721).
F
R
E
E
T
R
A
I
N
I
N
ISC provides free, instructor-led hands on training for your staff. Learn more at www.isc.ca/training
G
COMMENTARY The Legal Status of Common Law Spouses Canada Michelle Biddulph* College of Law At what point is a cohabiting couple treated by the law as a married couple, subject to the same family law rights and obligations as those who are married? While the answer to this question may seem simple, in reality it raises a number of complex conflict of laws issues with which family law practitioners may be increasingly engaged as common law couples move among the Canadian provinces and territories. A couple that is treated as common law in one province may not qualify as common law in another. If that couple moves to another province and the relationship subsequently breaks down, what are the consequences? What matrimonial rights do the spouses have? There are several provinces and territories that treat common law spouses identically to married spouses, granting them the following rights: spousal support, child support, property division, intestate succession, pension benefits, and homestead rights. These provinces/territories are: British Columbia, Saskatchewan, Manitoba, Nova Scotia, the Northwest Territories, and Nunavut.
other rights8. In New Brunswick, parties who cohabit for three years acquire spousal support rights9, and parties who cohabit for two years acquire pension benefit rights10. No other rights are granted to common law spouses. Newfoundland has an identical requirement to New Brunswick11. In PEI, spouses gain spousal support rights after cohabiting for three years, but acquire no other rights automatically. In the Yukon, there is no statutorilyprescribed minimum amount of time before parties are entitled to spousal support—they must simply be cohabiting in a relationship of some permanence12. Spouses who have cohabited for one year are entitled to intestate succession rights13. The final group is provinces that do not grant any rights at all to common law spouses. The only province in this group is Quebec. Quebec provides no spousal support, child support, intestate succession, homestead, or property division rights for nonmarried spouses (referred to as de facto spouses)14.
In BC, a couple attains common law status after cohabiting for 24 months1. Saskatchewan has the same two year requirement for all spousal rights except for pension benefits, which are Continued on Page 16... acquired after cohabiting for only one year2. Manitoba has a three year minimum requirement before full spousal rights Table 1: Summary of the General Cohabitation Requirements are granted3. In Nova Scotia, parties acquire spousal support for Common Law Marriage rights after cohabiting for two years, and pension benefit rights after cohabiting for one year4. All other rights are granted once the spouses register as a domestic PARTIAL RIGHTS FULL RIGHTS NO RIGHTS partnership5. In both the Northwest Territories and Nunavut, the parties are granted full spousal rights AB: 3 years BC: 2 years after cohabiting for two years6. QC The partial rights group includes: Alberta, Ontario, New Brunswick, Newfoundland and Labrador, Prince Edward Island, and the Yukon. In Alberta, parties acquire all the spousal rights listed above after cohabiting for three years, except for homestead rights7. In Ontario, parties are entitled to spousal support, child support, and pension benefits after cohabiting for three years, but do not acquire any
SK: 2 years
ON: 3 years
MB: 2 years
NB: 3 years
NS: 2 years
NL: 3 years
NT: 2 years
PEI: 3 years
NU: 2 years
YT: No min./ 1 year
* BA (Saskatchewan), JD candidate (Saskatchewan). This brief article is part of a larger project that I am currently working on as a research assistant with Professor Dwight Newman, focusing on the conflict of laws issues arising out of interprovincial mobility and common law marriages. I thank the Foundation for Legal Research for funding this research. 1 Family Law Act, SBC 2011, c 25 ss 3(1)(b)(i), 81, 160; Estate Administration Act, RSBC 1996, c 122 ss 1(b), 83; Land (Spouse Protection) Act, RSBC 1996, c 246 s 1(b). 2 The Family Property Act, SS 1997, c 48 ss 2(1)(c), 20-21; The Homesteads Act, 1989, SS 1989 c H-5.1 s 2(d)(ii); The Family Maintenance Act, 1997, SS 1997, c F-6.2 s 2(d)(i); The Family Maintenance Act, 1997, SS 1997, c F-6.2 s 2(d)(i); The Pension Benefits Act, 1992, SS 1992 c 6.001 s 2(1)(ff)(ii). 3 The Family Maintenance Act, CCSM 2012, c F20 ss 1(b)(i), 4, 36; The Homesteads Act, SM 2002, c 48 ss 1(b), 3; Intestate Succession Act, SM 2002, c 48 s 1(b)(i); Family Property Act, CCSM, c F25 ss 1(b), 2.1(1), 6(2). Maintenance and Custody Act, RSNS 2000, c 150 ss 2 (aa), 3(1); Pension Benefit Act, SNS 2011, c 41 s 2(ax) (v)(B). 4 Maintenance and Custody Act, RSNS 2000, c 150 ss 2 (aa), 3(1); Pension Benefit Act, SNS 2011, c 41 s 2(ax)(v)(B). 5 Vital Statistics Act, RSNS 1989, c 494, ss 53-54.
BarNotes l Winter 2013
Page 15
COMMENTARY Continued from Page 15...
This regime was recently upheld as constitutional by the Supreme Court of Canada15. These differences raise a number of conflict of laws issues. A couple that resides in Saskatchewan for two years is treated the same as a married couple. But if that couple then moves to Ontario, what rights do the spouses obtain upon the breakdown of the relationship—the full rights granted by Saskatchewan law, or the partial rights granted by Ontario law? With increased national mobility and the rise in non-marital unions among young Canadians, family law practitioners across the country are increasingly engaged with this type of issue. It is a problem that can no longer be ignored. It raises difficult conflict of laws issues that many practitioners may not be familiar with. But a practitioner cannot adequately advocate for the rights of these types of clients without understanding the issues involved. While this article can only give a brief introduction to the differences in common law spousal legislation across Canada, our forthcoming research will engage with the issue in-depth and will attempt to provide some answers to this increasingly important question.
When they’re gone, they’re gone... Order your Legal Directory & Day Planner today!
http://bit.ly/LD-DP
6 Family Law Act, SNWT 1997, c 18 ss 1(c)(i), 16, 33, 36, 53; Intestate Succession Act, RSNWT 1988, c I-10 s 1. 7 Adult Interdependent Relationships Act, SA 2002, c A-4.5 s 3(1)(a)(i); Family Law Act, SA 2003, c F-4.5, ss 1(n), 48(1)(a), 56, 67; Intestate Succession Act, SA 2010, c W-12.2 s 2; Dower Act, RSA 2000, c D-15 s 1(c). 8 Family Law Act, RSO 1990, c F.3 ss 1, 29; Pension Benefits Act, RSO 1990, c P.8 s 1; Succession Law Reform Act, RSO 1990, c S 26 s 1. 9 Family Services Act, SNB 1980, c F-2.2 s 112(3)(a). 10 Pension Benefits Act, SNB 1987, c P-5.1 s 1. 11 Family Law Act, RSNL 1990, c F-2 ss 35-36; Pension Benefits Act, SNL 1996, c P-4.01 s 2(c.1)(ii). 12 Family Property and Support Act, RSY 2002, c 83 s 37.
Available Now
13 Estate Administration Act, RSY 2002, c 77 s 1. 14 Civil Code of Quebec, LRQ, c C-1991 arts 401-521.19, 585-596.1, 666. 15 Quebec (Attorney General) v A, 2013 SCC 5.
ISC Legal Advisory Committee Getting the legal community’s perspective on policy issues, amendments to legislation and the expansion of new services from Information Services Corporation (ISC) are the main objectives of the ISC Legal Advisory Committee. The CBA has been a key contributor to the success of the ISC Legal Advisory Committee with the appointment of four representatives: • James Camplin, Harvard Developments Inc., Regina (306.777.0600 // jcamplin@harvard.ca) • Bernard Duchin, Duchin Bayda & Kroczynski LLP, Regina (306.359.3131 // bernard.duchin@dbklaw.com) • Cindy Haynes, Cindy M. Haynes Law Office, Regina (306.789.2242 // cindym.haynes@sasktel.net) • David Leland, Leland Kimpinski LLP, Saskatoon (306.244.6686 // info@lelandlaw.ca) Members are invited to contact one of the above CBA representatives regarding issues of concern or ideas for new services that could be raised at future ISC Legal Advisory Committee Meetings.
Page 16
BarNotes l Winter 2013
COMMENTARY Lien Limitation Period Michael Krawchuk WMCZ Lawyers I have always had a fascination with builders’ liens. The Builders’ Lien Act (the “BLA”) is a complicated piece of legislation which, with its statutory trusts, holdback remedies and particular court proceedings and procedures has held my interest since my early years as a lawyer. Some may find such a fascination to be a strange one. One builders’ lien issue that has attracted my thoughts and attention over the years is the question of what limitation period, if any, applies to the enforcement of a builders’ lien? One view is that the lien, once registered against title, may be enforced at any point in the future. On this view, the lienholder, having provided value to the land, has an interest in the land and, once the lien is registered, it stays until satisfaction is received. An alternate view is that the lien is a cause of action like any other. On this view, the lienholder has a claim for unpaid services or materials provided to the land and, even though a lien is registered, the lienholder must still take legal action to prove his or her claim in Court like any other person with a claim for compensation. I have had a few interesting and lively discussions with colleagues of mine over the years on this issue (non-builders’ lien enthusiasts may have a different take on my description of these chats). I have found guidance on this issue from a fairly recent decision of Madam Justice Dovell in Syed v. 612565 Saskatchewan Ltd., [2009] S.J. No. 245 (Sask. Q.B.). In this case the Respondent, lien holder, had registered a lien against the Applicants’, owners, land in the amount of $8,744.98 on May 17, 2006. On November 6, 2006, the Applicants made an ex parte application under s. 56 of the BLA for payment into Court of the lien amount plus 25% for costs in return for which the lien would be discharged from title but remain a charge on the funds in Court. The ex parte order was granted and the funds duly paid into Court. However, the Respondent never brought an application for a determination of the amount payable under the lien nor did it ever commence an action. In early 2009, the Applicants brought an application for a declaration that the Respondent’s lien claim was void and for the return of the money in Court. In response, the Respondent brought its own application for an order that the matter be set down for a one day hearing. Madam Justice Dovell began by looking at the provisions of the BLA. She found that, while there is a limitation period for an action on a BLA trust and there is provision for the expiration of a lien in circumstances where an action has been commenced, there is no specific limitation period for commencing an action on a lien. As such, the provisions of The Limitations Act (the “LTA”) apply. Under s. 5 of the LTA a two year limitation period applies from the date a claim is discovered. Justice Dovell found that the Respondent had discovered its claim, at the earliest, when default in payment was made by the Applicants, or at the latest, when the Respondent registered its lien. In any event, the latter was beyond two years. That there was an ex parte application BarNotes l Winter 2013
by the Applicants in November of 2006 made no difference; the Respondent knew when its lien claim had arisen. Therefore, since two years had passed since the lien claim arose and no action had been commenced by the Respondent, the lien claim was statute barred by s. 5 of the LTA. A declaration was granted that the Respondent’s lien was void and the Applicants received a return of their money in Court. A more recent decision of Mr. Justice Scherman in RGR Enterprises Ltd. v. Allsteel Builders (2) Ltd., [2012] S.J. No. 415 (Sask. Q.B.) supports the conclusion of Dovell J. in Syed, but also adds some complexity. In this decision, the Applicant, mortgagee turned owner, sought to discharge from title the liens of those Respondent, lien holders, who had registered builders’ liens but had not commenced actions on their liens, on the basis that the two year limitation period from the date of registration had expired. Two of the Respondent lien holders had commenced actions and one of them sought to add the other lien holders to its action, despite the expiry of the limitation period. The Applicant, earlier when it was a mortgagee, had commenced separate foreclosure proceedings that included all lienholders as defendants. Justice Scherman confirmed that the limitation period for commencing an action on a builders’ lien is two years from the date of registration of the lien. Beyond that point a lien holder cannot commence an action to enforce its lien. Nevertheless, Mr. Justice Scherman did not order the discharge of the liens of those lienholders who had not yet commenced actions. This decision was based on the application and interplay of provisions of the BLA and the LTA. Under the BLA, all lien holders are to be added as parties to an action brought to enforce a lien and, if they are not added at the outset, they may be added later at any stage of the proceedings. Having all lienholders as part of an action facilitates the rate-able distribution of funds between lienholders by class as set out under the BLA. As such, the BLA contemplates all lien holders being added to an action so as to take part in any distribution of funds. Further, s. 20 of the LTA allows a party to be added to an action after the expiry of a limitation period if the party’s claim arose out of the same transaction or occurrence found in the existing action and there is no prejudice to any other party. In this case, since all the lienholders provided their services to the same party and were of the same class, Justice Scherman found that their claims all arose out of the same transaction or occurrence. He also found no prejudice to the Applicant because it was aware of, and added as defendants, all lienholders in its earlier foreclosure action when it was a mortgagee. When the Applicant became owner it had Continued on Page 18...
Page 17
COMMENTARY Continued from Page 17...
knowledge of these liens when it took title. Therefore, s. 20 of the LTA having been satisfied, Mr. Justice Scherman added the lienholders as defendants to the existing lien action. Even though the lien holders were being added as defendants, they could still assert their rights to enforce their liens. Justice Scherman held that actions under the BLA are to determine the rights of all parties to an action and are to be determined in a summary manner with a view to minimizing expenses. As such, the BLA contemplated a lien holder enforcing a lien in an action even though it was a defendant, without the need to commence an action, such as a cross-claim.
What I take from these two decisions is there is a limitation period applicable to a lien holder enforcing a builders’ lien. If an action is not commenced on the lien within two years from registration, the lien is vulnerable to being discharged as statute barred. There may be occasions when the rights of an otherwise statute barred lien may be revived, such as the lienholder being named or added as a defendant to another lien holder’s properly commenced action, or perhaps to a foreclosure action. However, prudence suggests not relying on others to facilitate the enforcement of a lienholder’s rights.
Meet the Office of Public Registry Administration Sheri Hupp Ministry of Justice In November of 2012, The Information Services Corporation Act was introduced in Saskatchewan, beginning the process of privatization of Information Services Corporation of Saskatchewan, a crown corporation. The result was the formation of Information Services Corporation (ISC), a private sector business corporation. As part of the process of privatizing ISC, it was necessary to ensure that the overall responsibility for the registries remained within government and thus, the establishment of the Office of Public Registry Administration (OPRA). OPRA was established at the Ministry of Justice on May 30, 2013 as a result of the proclamation of The Operation of Public Registry Statutes Act and The Information Services Corporation Act. OPRA has oversight and responsibility for the Land Registry, the Personal Property Registry, the Corporate Registry and the Land Surveys Directory. OPRA is also the home for the newly appointed Registrar of Titles, Registrar of Personal Property Security, Director of Corporations, Registrar of Co-operatives and Controller of Surveys (the Registry Officers). ISC and the Government signed a 20 year renewable agreement that appoints ISC as the service provider for management and operation of the registries on behalf of the Government. They will continue to deliver the core registry services customarily provided prior to privatization and as such, were granted an exclusive right to registry data. Maintenance and secure storage of that data is an ongoing obligation of ISC under the agreement. ISC is expected to meet performance standards that are consistent with pre-privatization in order to continue to ensure that the Saskatchewan public is well served, including service levels on search and site availability, turnaround times on transactions and employing sufficient and trained personnel. ISC will remain the first point of contact for routine transactions
including searches and registrations for all registries that occurred pre-privatization. Some examples of other transactions that will continue to be submitted to ISC are: For the Land Registry – requests for corrections, mineral Certifications and parcel picture on demand; For the Personal Property Registry – compulsory discharges, secured party reports and staff-assisted RIN lookups; For the Corporate Registry – notice of change of directors, dissolutions and requests for corrections of issued certificates; and For the Land Surveys Directory - requests for survey instructions and requests for prior approval for a descriptive plan. Moving back to the role of OPRA and the Registry Officers, the office will focus on government oversight and its responsibilities will include: Registry integrity - the responsibility for ensuring the integrity of the registries; Ownership of registry information the Government continues to own all registry information, records and data in the registries; Policy setting for the registries - the Registry Officers set new policy and amend existing policies for the registries including participating in revisions to procedures that will have an impact on policy; Legislative amendments – the Registry Officers are responsible for the legislation, proposing any changes to the Acts and Regulations to be considered by the Government; and Delegations to ISC to enable it to act as service provider – the Registry Officers provide formal and specific written delegation under the various pieces of legislation to ISC employees setting out their authorities while retaining the right to review decisions made at ISC. As indicated, ISC will remain the first point of contact for routine transactions. Transactions will be escalated from ISC to OPRA where: no written policy exists; new precedent or policy will be set; existing policy will be changed or amended including changes to process that affect policy or registry integrity; and authority has not been delegated to ISC.
Page 18
BarNotes l Winter 2013
COMMENTARY There will also be some occasions when OPRA is now the first place of contact, replacing ISC as the contact. These include: • Assurance claims under The Land Titles Act, 2000 and compensation claims under The Personal Property Security Act, 1993 and The Business Corporations Act; • The consumer protection provisions, including posting and release of security, under The Condominium Property Act, 1993; • All documents to be served on a Registry Officer pursuant to a public registry statute including court actions or applications; • Potential changes to policy, regulation or legislation; • Restriction of access to the Registries; • Referrals to the Registrar of Titles under The Land Titles Act, 2000; and • Name disputes in the Corporate Registry. The OPRA office currently has six resources with five acting as Registry Officers. All of the members of OPRA bring a wealth of registry experience to their new roles and are cross trained and appointed to ensure that each registry is well served. The Registry Officers are:
Catherine Benning Director Catherine is a University of Saskatchewan graduate with a Bachelor of Economics and a Bachelor of Laws. She articled
US and cross-border tax is our business. Let us help you with yours.
Karen Banks Senior Crown Counsel / Registrar of Titles US citizens resident in Canada Cross-border business activities Canadians with US investments US tax return preparation Warren Dueck FCA/CPA Steven Flynn CA/CPA Brent Hoshizaki CA/CPA Laura McLeman CA Lori Lui CGA
T: 604.448.0200 • Toll Free: 1.855.448.0200 uscrossbordertaxblog.com • wldtax.com VANCOUVER
RICHMOND
BarNotes l Winter 2013 BarNotes_ad_1/4-page_2013.05.07.indd 1
with the Ministry of Justice and then joined the Master of Titles office as Deputy Master of Titles in 1997. In 2003, Catherine was appointed Registrar of Titles. In 2009, Catherine returned to the Ministry of Justice to work in the Legislative Services Branch where she continued to be responsible for a variety of public registry statutes including those required to privatize ISC and create the new operating arrangement for the registries. Catherine is currently the Director of OPRA as well as a Deputy for the Land Registry, Personal Property Registry and Corporate Registry.
CALGARY
OTTAWA
Karen is a University of Regina and a University of Saskatchewan graduate with a Bachelor of Arts, Bachelor of Laws and a Masters in Business Administration. Karen joined ISC in 2000. In 2001, Karen was appointed Deputy Registrar of Titles and in 2003, she was appointed Registrar of Personal Property Security. In 2009, Karen went to the Ministry of Advanced Education; at the time she left in 2013 to join OPRA, she was the Executive Director of Strategic Initiatives. Karen is currently Senior Crown Counsel and Registrar of Titles as well as a Deputy for the Personal Property Registry and Corporate Registry.
Amin Bardestani Senior Crown Counsel / Director
of
Corporations / Registrar of Co-operatives
Amin is a University of Alberta graduate with a Bachelor of Arts and a Bachelor Laws. Amin joined ISC in 2007. In 2009, Amin was appointed Deputy of Registrar of Titles and in 2011, he was appointed Deputy Director of Corporations and Deputy Registrar of Co-operatives. In January of 2013, Amin went to Financial and Consumer Affairs Authority of Saskatchewan where he was Legal Counsel. Amin is currently Senior Crown Counsel, Director of Corporations and Registrar of Co-operatives as well as a Deputy for the Land Registry and Personal Property Registry. Continued on Page 20...
13-05-14 10:37 AM
Page 19
cOMMENTARY Continued from Page 19...
Jim Boyd Controller of Surveys Jim is a University of New Brunswick graduate with a Bachelor of Science in Survey Engineering. Jim began working for SaskGeomatics Division of the Saskatchewan Property Management Corporation (SPMC) in 1982. In 1984, Jim received a Saskatchewan Land Surveyors Commission, a critical component for the Controller of Surveys. In 2001, Jim transferred to ISC from SPMC. In 2003, Jim was appointed Deputy Controller of Surveys and in 2008, he was appointed Controller of Surveys. In May of 2013, Jim transferred from ISC to OPRA where he is currently the Controller of Surveys.
Sheri Hupp Senior Crown Counsel / Registrar of Personal Property Security
Sheri is a University of Saskatchewan graduate with a Bachelor of Arts Honours and a Bachelor of Laws. Sheri joined ISC in 2001. From 2004-2009, she served as Deputy Registrar of Titles and in 2009, she was appointed Registrar of Personal Property Security and Registrar of Vital Statistics. In 2010, Sheri went to the Saskatchewan College of Paramedics where she was the Executive Director and Registrar and acted as General Legal Counsel. Sheri is currently Senior Crown Counsel and Registrar of Personal Property Security as well as a Deputy for the Land Registry and Corporate Registry.
COMMENTARY Assistant is Rhonda Bailey who brings 17 years of government experience and knowledge to her new role, the majority of which was spent with the Ministry of Justice. If you need to contact or serve the OPRA office, you should do so at: Office of Public Registry Administration 1110, 1874 Scarth Street Regina, SK S4P 4B3 Phone: (306) 798-1079 // Fax: (306) 787-5830 The OPRA office will continue the tradition of getting the legal community’s perspective on policy issues and amendments to legislation through the Legal Advisory Committee (LAC) which includes representation from the Law Society and the CBA. A joint email has gone out from ISC and OPRA to LAC advising them that OPRA has taken on the leadership of LAC and that a meeting will be scheduled for this fall to coincide with consultations on amendments to The Condominium Property Regulations, 2001. We thank ISC for their past participation and their assistance in the smooth transition of LAC. The OPRA looks forward to working with the Saskatchewan legal community in relation to public registry administration. Please feel free to contact a member of the office if you have relevant registry questions. Lastly, thank you to all the members of OPRA for their contributions and review of this communiqué.
In addition to the Director and Registry Officers, the Administrative
Occupational Health and Safety Update Terry Jordan SaskEnergy Incorporated On November 7, 2012, changes to The Occupational Health and Safety Act, 1993 (the “Act”), as outlined in Bill 23, came into effect. Amendments to The Occupational Health and Safety Regulations, 1996 (the “Regulations” or “OHS Regulations”) and The Summary Offence Procedure Regulations, 1991 (the “Summary Offence Procedure Regulations”) supplemented the Bill. Bill 85 was passed on May 13, 2013. It is not yet proclaimed. Bill 85 effectively consolidates occupational health, employment standards and labour relations legislation within a new Act, The Saskatchewan Employment Act. Both enactments make significant changes to the law. Here are a few selected changes of general application. 1. The powers of occupational health officers and peace officers.
a. Changes to the Summary Offence Procedure Regulations authorize peace officers to issue summary offence tickets for non-compliance with specific provisions of the OHS Regulations, including certain employer, worker, supervisor and general workplace offences. b. Section 72 now grants occupational health officers the power to compel an interview in defined circumstances. Absent consent of the officer, the person interviewed is entitled to the presence of one person of their choice. c. Section 30 now grants occupational health officers the power to take a “compliance undertaking”, a signed commitment from the client, in many instances were a notice of contravention would formerly be issued. A progress report is required in either event, within five business days, by end of the period specified in the document. d. Bill 85: an occupational health officer’s inspection, inquiry,
Page 20
BarNotes l Winter 2013
COMMENTARY and investigation powers are no longer found in a single paragraph (Section 72), and those requirements are reworked. Revisions will change the test for right of entry, and warrants, for example. 2. The role of workplace participants. a. The previous definition of “contractor” required that a person “direct” the work of the employer or self-employed person; now the test is met if a person “directs” or “retains” an employer. A “contractor” is someone who hires or directs another employer or self-employed person, not the employer hired. An owner under the Act may very easily be a contractor as well. Be aware of Section 5(6) of the Regulations “where the person with the greatest degree of control fails to comply”, and of the so called “homeowner exception” in Section 2(2.1) of the Act. b. Employers also have a new general obligation to ensure, insofar as is reasonably practicable, that the activities of the employer’s workers do not negatively affect others at the place of employment. There are new requirements with respect to training and supervision of workers, occupational health committees and representatives, and provision of information to medical staff. c. A worker is now defined as someone “engaged in the service of” an employer or “a prescribed person” rather than someone “engaged in an occupation in the service of an employer”. Inmates are expressly excluded from the new definition. d. Bill 23 creates statutory “supervisor” obligations, in addition to those previously found in the OHS Regulations. This includes obligations related to worker compliance with the Act or Regulations, and harassment prevention.
adjudicator, and sets the time and date of the hearing or appeal. 6. Bill 85 will provide new guidance on how fines are to be arrived at. The maximum fines will at least double. The maximum fine for a corporation increases from $300,000 to $1,500,000, plus victim surcharges. There are also provisions of more specific application. For example, if your client operates a retail business between 11 p.m. and 6 a.m., the new requirements with respect to late night retail will be important. In a unionized workplace, employers must now comply with union bylaws (as well as the union constitution) in appointing occupational health representatives. Workplaces may be required to keep specific illness and injury statistics in the future, where prescribed, and the Occupational Health and Safety Division now has discretion to require occupational health committees or programs in specific circumstances where they would not be otherwise required by the Act. Finally, the only thing better than a clarified reverse onus clause, is a new reverse onus clause, and as a result of Bill 23 you can now find both. Section 62 of the Act addresses circumstances where there is “a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something”. Under Section 62.1, the onus is now on the employer to prove that a worker was trained in accordance with the Act.
e. If a supplier has a duty to maintain equipment under a leasing agreement, it now has a duty to maintain that equipment in accordance with the Regulations. It may also have obligations with respect to the provision of written instructions or to provide a notice if the equipment supplied does not comply with the Regulations. 3. Bill 23 creates a right of appeal to the Court of Appeal from the Court of Queen’s Bench. Bill 23 also addresses the details of service of documents, standing to appeal, the record of appeal, time periods for appeals, and other helpful clarifications, in circumstances where a careful review of the case law was formerly required. A mechanism for substitutional service is added. 4. Bill 85 reintroduces the “prime contractor” designation for multi-employer worksites, originally introduced in Bill 23 and not proclaimed. The details will be addressed in the regulations, but may include such obligations as ensuring that all activities that may affect health and safety are coordinated, ensuring, insofar as reasonably practicable, that employers and self-employed persons at the worksite have adequate policies and procedures, and preparing a written safety plan. The requirement may be limited to specific industries. Where no prime contractor is designated by contract, the owner is likely the prime contractor. 5. Under Bill 85, the Saskatchewan Labour Relations Board is incorporated into the administrative appeal process, for occupational health matters, effectively supplanting the Court of Queen’s Bench. The Labour Relations Board also selects the BarNotes l Winter 2013
Expert Witness Available Former CFIA veterinary scientist is available to appear as an expert witness in court proceedings, both civil and prosecutorial. Please contact for further discussion in areas of expertise. Livestock Improvement Consulting Phone: Email:
(204) 804-3010
livestockimprovementco@gmail.com
Page 21
HEADER
Friday January 31st, 2014 Cocktails: 6:00pm
This annual event alternates between Saskatoon and Regina, benefitting CLASSIC and Pro Bono Law Saskatchewan respectively.
Dinner: 7:00pm
In 2014 all proceeds will go to CLASSIC (Community Legal Assistance Services for Saskatoon Inner City Inc.)
Dance to Follow
Thank you for supporting access to justice in your community!
Featuring: “Special Event
Lawyers, judges and their guests are welcome.
Dance Band”
Tickets $150 each
TCU Place
Please submit Ticket Order Form to:
Cash Bar
Donna Harris Department of Justice Canada Phone: 306-975-6455 E-mail: donna.harris@justice.gc.ca
Masters of Ceremonies: Brooke Sittler Terry Zakreski
Dress Code: Black Tie, Formal or Business Thank you to the sponsors:
The Law Society of Saskatchewan’s Pro Bono Service Award will be presented to the 2014 recipient COLLEGE OF LAW
COMMENTARY HEADER Saskatchewan Celebrates National Pro Bono Week Nicole Sarauer Pro Bono Law Saskatchewan Pro Bono Law Saskatchewan hosted a series of events to celebrate National Pro Bono Week this year, an event which provides an opportunity to draw attention to the increasing need for pro bono services while celebrating the outstanding work of the lawyers who volunteer their services throughout the year. Pro Bono Week, which occurred during the week of October 20-26 this year, has been a successful event in the United States and other parts of Canada for several years and had its inaugural Saskatchewan celebrations this year. PBLS hosted a number of events to celebrate Pro Bono Week. The first event, “Bring a Buddy”, was held during the months of September and October at all of our free legal clinics in the province, including CLASSIC’s Legal Advice Clinic. Volunteers at our free legal clinic could bring another lawyer or articling student to shadow them during their clinic appointments. Both lawyers would then be entered into a draw for a watch donated by Dilawri. This was a great way to dispel the ‘fear of the unknown’ in relation to providing summary advice at the clinic and allow for our current volunteers to show other lawyers the volunteer work they are doing. Eighteen volunteers and ‘buddies’ participated in this event, and Candace Stadnyk was the lucky winner of the watch. We would like to thank all of the lawyers and their ‘buddies’ who participated in this event: Stephanie Yang; Kristel Kriel; Beau Atkins; Brett McRuvie; Lindsay Gates; Marisha Wagner; Drew Hitchcock; Corinne Maeder; Tanner Daniels; Candace Stadnyk; Joanne Colledge; Christina Kerby; Virgil Thomson; Nicole Hamm; Robert Heinrichs; Brandon Moore; Scott Hopley and David Zeggelaar. PBLS also hosted, in partnership with the Law Society of Saskatchewan, a CPD webinar entitled “Working with Low Income Clients”. Bonnie Morton from the Regina Anti-Poverty Ministry gave a talk on working effectively with people living in poverty, including
Volunteer lawyer Krista Evanisky answers calls during Call In Day
BarNotes l Winter 2013
understanding the fears, mistrusts, and barriers faced by those of limited income. Bonnie is well-versed in this subject with a history of providing advocacy services to people living in poverty for 27 years. We were honoured to have her agree to present to lawyers on this issue, and were happy that 93 lawyers registered to view her webinar. The recorded version of her presentation is still available by contacting the Law Society. Volunteer lawyers can view the webinar for free. Our festivities culminated in a province-wide pro bono Call In Day on October 26. The event, which was cosponsored by CBA Saskatchewan, saw volunteer lawyers answering general inquiries and providing legal information to anyone calling our toll-free line between 10:00am and 2:00pm. Legal information was provided in a variety of areas of law, including criminal, civil, family, and immigration law. The Law Society of Saskatchewan was gracious in providing us space to host this event. We had 12 lawyers participate as well as three of our former Justice Studies practicum students answering the initial calls and routing them to the appropriate lawyers. Through the hard work of all of these volunteers, we were able to answer the questions of 120 individuals in four hours. Because we try not to work all of the time, the day ended with a pizza party where lawyers and other volunteers could kick back and socialize. We’d like to thank all of the lawyers who came out on Saturday: Marc Kelly; Krista Evanisky; Kim Newsham; Tim Brown; Suneil Sarai; Steve McLellan; Stephanie Yang; Kamara Willett; Norman Bercovich, QC; Dale Beck; and Michael Phillips. We’d like to thank everyone who helped to make Pro Bono Week a success this year. We look forward to the festivities happening again next year!
Call In Day volunteers posed for a photo prior to enjoying some pizza and relaxing. Pictured (L- R), Back to Front: Norman Bercovich, QC; Tim Brown; Marc Kelly; Kim Newsham; Dale Beck; Suneil Sarai; Morgan Brady; Julia Bewcyk; Tyler Gray; Kara-Dawn Jordan; and Jessica Nixon.
Page 23
Right to Know Week
CBA Recognized During Right to Know Neil Robertson, QC Regina Police Service Right to Know (RTK) Day is celebrated across Canada and internationally in the last week of September of each year. Internationally, RTK Day began on 28 September 2002, in Sofia, Bulgaria at an international meeting of access to information advocates who proposed that a day be dedicated to the promotion of freedom of information worldwide. Saskatchewan was one of the first provinces to celebrate RTK Week, beginning in 2006. RTK activities are held in almost all of Canada’s provinces and territories to promote public awareness during RTK Week. The goal is to remind citizens of the value of open government. The health of our democracy depends upon an educated and informed citizenry able and willing to participate, including by expressing their views and vote. Public access to information is one vital means to that end. This year’s activities in Saskatchewan included proclamations of Right to Know Week from the Government of Saskatchewan and the cities of Regina and Saskatoon, a lecture in Regina, a radio interview, newspaper articles, a film series at the Regina Public Library Film Theatre, and a special award to The Canadian Bar Association, Saskatchewan Branch. The Week’s events began with a lecture on September 23 at the University of Regina by Charles Rusnell, an investigative reporter with CBC Edmonton, on “The View from the Front Lines of Journalism”. Mr. Rusnell was born and raised in Wadena and is a graduate of both the University of Regina and University of Saskatchewan. He spoke about the importance of access to information laws to provide the public with meaningful information about their government, recounting stories he uncovered and reported while stationed in Ottawa and Alberta. Mr. Rusnell warned of a growing culture of secrecy, including deliberate disregard for laws guaranteeing the public’s right to information. Following the lecture, Kylie Head, CBA Saskatchewan President, accepted a RTK Award recognizing the Branch for its support of Right to Know Week in Saskatchewan and for the work of the CBA to promote the rule of law, including public rights of access to information, including through its National and Provincial Privacy and Access Sections. The Saskatchewan Right to Know Committee has always included CBA members. In 2007, then CBA Vice President Murray Sawatzky presented the Chief Justice Culliton Award, named for E.M. Culliton, who served as Chief Justice of Saskatchewan from 1962 to 1981. The CBA has provided consistent and generous support over the years, as a sponsor of the RTK Committee and funder of RTK events and through the participation of CBA members on the RTK Committee, advertising of RTK events in the CBA publication BarNotes, and by providing its President or Vice President to present the Chief Justice Culliton Award, which recognizes public sector bodies that have demonstrated leadership and innovation in promoting the public’s right to know.
The Regina Public Library Right to Know Film Series was held from September 26 – 29, showing films selected by the RPL Film Theatre to highlight access to information. The RTK Committee has been sponsored by many organizations, including: • CBA Saskatchewan; • the Saskatchewan Regional Group of the Institute of Public Administration of Canada (IPAC); • the Johnson-Shoyama Graduate School of Public Policy; • the Law Foundation of Saskatchewan; • the Office of the Saskatchewan Information and Privacy Commissioner; • the Regina Public Library; • the Regina Leader-Post; • the Saskatoon StarPhoenix; • the Sheldon Chumir Foundation for Ethics and Leadership; • the University of Regina; and • the University of Saskatchewan, College of Law. The work of the Right to Know Committee is done by a group of volunteers. The Saskatchewan RTK 2013 Committee was chaired by Mark Anderson with Jeff Barber, Gary Dickson, QC, Kaylea Dunn, Greg Fingas, Karen Jaster, Erin Kleisinger, Joan Niedermayer, Neil Robertson, QC, and Shannon Whyley.
For more information on the Right to Know initiative, visit: http://www.oic-ci.gc.ca/rtk-dai-eng/
President Kylie Head accepting the Right to Know award with (L-R) Neil Robertson, QC, Mark Anderson and Greg Fingas.
Page 24
BarNotes l Winter 2013
NATIONAL NEWS Highlights from the Association Victims Bill of Rights The CBA Criminal Justice Section recently commented on the government’s discussion paper entitled: Victims’ Rights: Enhancing Criminal Law Responses to Better Meet the Needs of Victims of Crime in Canada and looks forward to reading the Victims Bill of Rights (VBR). The Section maintains that in addition to providing victims with support, resources and education about the criminal justice process, it recommends that the VBR provide a declaratory framework of victims’ rights and treatment during the criminal justice process; establish national guidelines with respect to the treatment of victims in the criminal justice process; set out the government’s responsibilities to victims, including measures of practical importance to victims; and recognize victims as key witnesses, not as added parties to the criminal justice process. Read the submission: http://bit.ly/CBA-VicBill
Recent submissions made by the CBA Joint Taxation Committee In October, 2013, the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada made recommendations to the Department of Finance to
Lawyers Concerned for Lawyers here for you when you need it.
address recent legislative proposals. The Committee focused their recommendations on ensuring the technical details are the object of appropriately targeted legislative language. Read the submissions: Proposed Amendments Aug. 16: http://bit.ly/AugAmend Proposed Amendments Sept. 13: http://bit.ly/SeptAmend
Joint Policy Statement Review The CBA is engaged in negotiations with the Auditing and Assurance Standards Board to update the Joint Policy Statement on Audit Inquiries (JPS). We appreciate the feedback received from members to date on the operation of the JPS and the Interim Guidance. Please follow the link below for information on the status of the negotiations. An exposure draft of the revised JPS will be distributed for comment in the fall of 2014. However, your input on the issues currently being considered would be very helpful. Status of Negotiations: http://bit.ly/JointPolicy
CBA PracticeLink: Women in the boardroom: How your firm can gain more female leaders While women make up the majority of law students, they are underrepresented in leadership roles at law firms. According to the National Association of Women Lawyers, only 15 per cent of equity partners are women even though they comprise 46 per cent of associates. Read the article: http://bit.ly/WomenBrdrm
New Exclusive Preferred Supplier: Club Intrawest The CBA is pleased to announce that Club Intrawest is the new exclusive Preferred Supplier of vacation club memberships to the CBA.
Lawyers Concerned for Lawyers Inc. is a non-profit corporation comprised of Saskatchewan lawyers and judges advocating for those within the legal profession who may be experiencing professional or personal stresses
Club Intrawest Members share ownership of boutique accommodations in premier ski, golf and beach destinations. The artistically-designed vacation homes (ranging in size from studios to 3-bedrooms) can be found in some of the most breathtaking destinations: just minutes from the lifts at Whistler Blackcomb; oceanfront in Zihuatanejo, Mexico; and winding along the Desert Willow fairways in Palm Desert, California. Other locations include Blue Mountain, Ontario; Tremblant Quebec; Panorama and Vancouver, British Columbia and Sandestin, Florida.
or difficulties. Professional and confidential assistance is available to law students and Law Society of Saskatchewan members and their families whose lives are impacted by personal or professional problems. Assistance is provided at no cost to all those who qualify for the program.
From time to time, Club Intrawest opens up space at its private club for partners and special guests. As a member of the CBA, you have access to preferred rates to experience the Club locations – no strings attached. Plus, if you do make the decision to join the Club, you will receive preferred pricing on your Membership.
1.800.663.1142
TTY: 1.888.384.1152 www.homewoodhumansolutions.com
BarNotes l Winter 2013
To learn more, visit the website or call 1-877-258-5852.
Page 25
BY THE NUMBERS Over
800,000 transactions annually
3 Conveyancing solutions The Conveyancer, Brief Convey, ProSuite
Surveyed
92.4
%
willingness to recommend*
421
webinar sessions since we started offering free training in 2010
2.2 million invested in our products in 2012 & 2013
10,000
The choice of over conveyancing legal professionals
625 lender forms added/or updated at no additional cost in 2012
1000+ Referrals since May 2011 from 400 individuals
1000+ 1:1 training sessions since January 2011
450+
in-firm sessions since January 2011
26
seconds – average call wait time in 2012
90.4
%
trust*
7
strategic partnerships that provide additional value to our customers
91.2
%
reliability*
33,597 support calls handled in 2012
22.7
%
of our staff dedicated to customer service
* Survey Results: Customer Experience Index (2012)
www.doprocess.com Sales & Customer Suport
Toll Free 1.866.367.7648
E sales@doprocess.com
E inquiries@doprocess.com
Š2013 Do Process LP. Do Process Software, The Conveyancer and Pro-Suite Software Ltd. are registered trade-marks owned by Do Process LP. Brief Convey is a trade-mark of Do Process LP. All rights reserved.
PROVINCIAL NEWS
Judicial Appointments The Honourable Jacelyn A. Ryan-Froslie On November 8, 2013, The Honourable Jacelyn A. Ryan-Froslie, a judge of the Court of Queen’s Bench of Saskatchewan, Family Law Division (Saskatoon), was appointed a judge of the Court of Appeal for Saskatchewan, replacing Madam Justice G.A. Smith (Regina), who retired on December 1, 2012. Madam Justice Ryan-Froslie was appointed a judge of the Court of Queen’s Bench in 2000. She obtained a Bachelor of Arts in 1974 and a Bachelor of Laws in 1977, both from the University of Saskatchewan, and was admitted to the Bar of Saskatchewan in 1978. She was a partner with Anderson & Company of Swift Current where she practised family law, civil litigation and mediation.
The Honourable Darin C. Chow The Honourable Darin C. Chow, a judge with the Provincial Court of Saskatchewan in Yorkton was appointed a judge of Her Majesty’s Court of Queen’s Bench of Saskatchewan, Family Law Division, on November 8, 2013 to replace Madam Justice D.L. Wilson (Regina), who was transferred to Saskatoon to replace Madam Justice M.E. Wright, who retired on August 31, 2013.
home insuranCe exCLusive to LegaL ProfessionaLs
Mr. Justice Chow was appointed to the Provincial Court of Saskatchewan in 2012. He obtained a Bachelor of Arts in 1991 and a Juris Doctor in 1994, both from the University of Saskatchewan. He was admitted to the Bar of Saskatchewan in 1995 and appointed Queen’s Counsel in 2008. Mr. Justice Chow was a partner with Chow McLeod (formerly Chow & Company), where he practised criminal law, family law, administrative law, arbitration, civil litigation, and real estate law.
The Honourable Lyle W. Zuk The Honourable Lyle W. Zuk, a lawyer with Wilcox Zuk Chovin Law Offices in Prince Albert, was appointed a judge of Her Majesty’s Court of Queen’s Bench of Saskatchewan on November 8, 2013 to replace Mr. Justice R.D. Maher (Prince Albert), who elected to become a supernumerary judge as of August 5, 2013. Mr. Justice Zuk obtained a Bachelor of Arts and a Bachelor of Laws from the University of Saskatchewan in 1980. He was admitted to the Bar of Saskatchewan in 1981 and appointed Queen’s Counsel in 2008. Mr. Justice Zuk has been a partner with Wilcox Zuk Chovin Law Offices and predecessor firms since 1994. He has been in private practice since his call to the bar. His practice areas were civil litigation, family law, corporate law, and wills and estates. Mr. Justice Zuk was a member of the Canadian Bar Association and president of the Prince Albert Bar Association from 1982 to 1985. He has been a certified mediator since 1989 and a member of Mediation Saskatchewan since 1995.
Law Day Luncheons
great rates! JUdgE FOR yOURsELF.
Join the thousands of Canadian LegaL ProfessionaLs who are sPending Less on their home insuranCe! CALL OR CLICK FOR A QUOTE
1-877-314-6274 www.barinsurance.com/homeauto
Certain conditions apply. CBIA Sponsored Home & Auto Insurance is underwritten by The Personal General Insurance Inc. in Quebec and by The Personal Insurance Company in all other provinces and territories. Certain products and services may not be available in all provinces and territories. CBIA Insurance Services is a division of 3303128 Canada Inc., a licensed insurance broker. Auto insurance not available in Manitoba, Saskatchewan or British Columbia due to government-run plans. The clauses and terms pertaining to the described coverage are detailed in the insurance policy. Certain restrictions and exclusions are included therein.
BarNotes l Winter 2013
CBIA_Ad_3.75x4.75_CMYK-2013.indd 1
CBA Saskatchewan is pleased to announce Ian Hanomansing as our keynote speaker for our 2014 Law Day Luncheons. With a law degree under his belt, Ian brings a wealth of experience to his role as anchor of CBC News Network’s prime time coverage. His roles have included that of reporter and occasional host with The National and the former host of CBC News Vancouver at Six, a one-hour newscast with a mix of local, national and international news.
REGINA Date: April 10th, 2014 Time: 12:00 to 1:30 p.m. Place: Delta Regina Hotel
SASKATOON Date: April 11, 2014 Time: 12:00 to 1:30 p.m. Place: Sheraton Cavalier
We look forward to seeing you at the luncheon!
6/20/13 10:55 AM
Page 27
postcard from a lawyer Do you love to Fly? Lee Mountain Mountain & Mountain If you are interested in aviation go to AirVenture! One of my most memorable holidays was when I flew to Oshkosh, Wisconsin for AirVenture, in my Cessna Cardinal 177B. The largest air show/ trade show in North America, some say in the world, is held at Wittman Regional Airport in Oshkosh, Wisconsin every summer. For one week every year, Oshkosh is the busiest airport in North America. Over 800,000 people, and 12,000 planes arrive each year. I first went to AirVenture six years ago. It is an amazing place - it is like an adrenalin shot of the ‘Spirit of Aviation’. I have been going every year since. Flying in was the best! Oshkosh is the aviation buff’s heaven. Every aviation company in North America introduces its new products at Oshkosh. There are nearly 1,000 forums and workshops throughout the week, that run from 9:00 to 5:00 every day, so choosing what you want to learn about can be a challenge. There are four rink size exhibit halls, and acres and acres of outdoor displays. There are dozens of exhibit tents, besides the exhibit halls. There is a Fly Mart - an aviator’s flea market or garage sale. There is the Fly-In theatre that plays aviation themed movies every night. This year
they premiered Disney’s new movie, Planes. Last year Red Tails premiered, a movie about a black flight squadron in World War II called The Tuskegee Airmen (George Lucas was the executive producer). At each movie there is a half hour interview before the show where people involved in the movie attend and answer questions. George Lucas and six surviving Tuskegee pilots were interviewed last year. Their stories were fascinating. People who love to fly should go to AirVenture. You meet people from around the world who share your passion. There is a huge camping area at Oshkosh called Camp Sholler that accommodates over 40,000 camp sites. If you fly in, there are two areas, the North 40 and the South 40, where you camp under the wing of your plane. Camping is the way to go so you are close to all the night activities, like the movies, concerts, and “Theatre in the Woods” that hosts guest speakers and entertainment all day, every day. I have seen ventriloquist and stand-up comedian Jeff Dunham perform there. He flies home built helicopters so he loves going to Oshkosh. I have also listened to a panel of astronauts talk about their space experiences. There are several free concerts at AirVenture each year. They have bands like the Beach Boys, Chicago, and Gary Sinses and the Lt. Dan Band perform (Lt. Dan from Forest Gump). There is a Night Airshow, with pyro on airplanes, lights and fireworks. “Women in Aviation” is a theme day started a number of years ago. Each year women pilots meet Friday morning for a photo op. If you register beforehand and give them your pilot’s license number you get a free t-shirt. The picture has all the women pilots in attendance. There are very few women pilots. It was really refreshing to meet so many ladies who love to fly. I have met a 16 year old glider pilot from Florida, a commercial pilot from South Africa, and an 84 year old pilot from Georgia, all while doing the group photo. It is nice to feel such kinship!
The Central Alberta law firm of Miller Lehane & Wild, located in Innisfail, Alberta is seeking individuals to join their team. The firm carries on a general practice of law and has a career opportunity for one or two young lawyers wishing to become associates or owners of a well established law practice. If you are interested, please email your inquiries/resume: • jjlehane50@hotmail.com • gmiller@mlwlaw.ca.
www.mlwlaw.ca
Fly by at AirVenture’s airshow
Page 28
BarNotes l Winter 2013
Postcard from a lawyer
Landed and relaxing!
New planes, fresh off the drawing board, fly in to AirVenture, and you get to tour them! I have seen the Dream Lifter, Spaceship One and The Airbus A380 take off and land. There are thousands of aircraft on display at AirVenture. Flying Cars, electric planes! There is a War Birds area, a home built area, and a Vintage area. There is a grass strip for ultralites and rotorcraft. If you like water craft there is a float plane base! They have great fish fries there. If you like to look at planes you will probably find your favorite at Oshkosh. Oshkosh has plane auctions and plane lotteries. The speakers are amazing. I have heard Burt Rutan, the designer of Spaceship One, Sully Sullenberger and Jeff Styles, who landed the plane in the Hudson River, and Richard Branson, the founder of Virgin Airways, holder of the fastest Pacific Ocean crossing by balloon,
Wing Camping
and financier of many world record aviation attempts by Steve Fossett, besides marketing space flights commercially. The hobbies we all have as lawyers help make life a bit sweeter. Flying into AirVenture, the busiest airport in North America was a challenge and a thrill! If you like flying don’t miss another AirVenture. You will be so glad you went!
2012 Women Soar AirVenture Group
BarNotes l Winter 2013
Page 29
contact@ashlow.com
217 Jessop Avenue • Saskatoon SK S7N 1Y3 p: 306.955.3373 • f: 306.955.3064 www.globeprinters.com
Tom Jeffries
c: 306.717.4006 e: tom@globesask.com
In pixels or print
cba.org/cbr
SaskTel .......................................................................... 32
The journal most frequently cited by the Supreme Court of Canada is free to CBA members.
ADvertisers
Read The Canadian Bar Review online at
Ashmeade & Low Investigations Ltd. ............................. 30 CBIA ....................................................................... Insert CBIA Home Insurance ................................................... 27 ChildView ....................................................................... 9 DivorceMate .................................................................. 6 Do Process Software .................................................... 26 Dueck & Co LLP ............................................................. 19 Expert Witness ........................................................... 21 Globe Printers .............................................................. 30 Gown to Gown Charity Gala .......................................... 22 Information Services Corporation ................................. 14 Lawyers Concerned for Lawyers ................................... 25 Miller Lehane & Wild LLP .............................................. 28
Page 30
BarNotes l Winter 2013
Calendar of Events December 13, 2013 Executive Committee Meeting Conference Call January 9, 2014 Executive Committee Meeting Conference Call January 24, 2014 Gown to Gown Lawyers’ Charity Gala Saskatoon February 5, 2014 Executive Committee Meeting Regina February 6, 2014 CBA Saskatchewan Council Regina February 6-7, 2014 2014 Mid-Winter Meeting Regina February 21, 2014 CBA Board of Directors Ottawa February 22-23, 2014 CBA Mid-Winter Meeting of National Council Ottawa March 1, 2014 Spring BarNotes Submission Deadline April 4, 2014 Executive Committee Planning Meeting Moose Jaw April 5, 2014 Law Day Fun Run Saskatoon April 10, 2014 Law Day April 10, 2014 Law Day Luncheon Regina April 11, 2014 Law Day Luncheon Saskatoon April 12, 2014 Law Day Fun Run Regina April 24, 2014 Executive Committee Meeting Saskatoon April 24, 2014 CBA Saskatchewan Council Saskatoon May 8, 2014 Executive Committee Meeting Conference Call May 15, 2014 Community Service Award Nomination Deadline June 1, 2014 Summer BarNotes Submission Deadline June 6, 2014 CBA Board of Directors Orientation Ottawa June 7-8, 2014 CBA Board of Directors Ottawa June 19, 2014 Executive Committee Meeting Saskatoon June 19, 2014 CBA Saskatchewan Annual Meeting Saskatoon July 10, 2014 Executive Committee Meeting Conference Call August 7, 2014 Executive Committee Meeting Conference Call August 13, 2014 CBA Board of Directors St. John’s August 14, 2014 CBA Annual Meeting of National Council St. John’s August 15-17, 2014 2014 CBA Canadian Legal Conference St. John’s
Sections
Are you moving?
Don’t miss out on great PD opportunities!
If so, please advise CBA Saskatchewan so we can update your records. All changes should be sent to cba.sk@sasktel.net.
Our 2013-2014 Section Registration & Program Handbook is still available for downloading. Visit our website for Section Meeting details and to register for sections.
Written changes may be sent to:
CBA Saskatchewan 306, 105-21st Street East Saskatoon, SK S7K 0B3
Remember, Sections qualify as an “Accredited CPD Activity” under the Law Society’s Continuing Professional Development Policy. Available to CBA Members only.
More information... 2013-2014 Section Registration & Program Handbook http://bit.ly/CBASKsections CBA PD Website www.cbapd.org
BarNotes l Winter 2013
Page 31
Is your business data secure?
SaskTel Data Centre services can help An Enterprise-class, safe and secure operating environment for your servers, data and applications. How would it affect your business if your servers went down? Do you worry about the protection and security of your clients’ data? Do you have the resources to properly manage and maintain your IT infrastructure? With SaskTel Data Centre services, our team of Experts will take care of your IT infrastructure, so you can focus on your business.
The SaskTel Data Centre provides:
SaskTel Data Centre services include:
• Redundant Uninterruptible Power Supply (UPS), generators and cooling to ensure continuous power and optimum temperature and humidity at all times
• SaskTel Colocation – Do you want to maintain control of your server infrastructure and gain the benefits of a secure environment? SaskTel Colocation service allows you to lease space for your servers in our highly stable and secure Data Centre.
• 24/7 monitoring, alarming and support of environmental controls • Secure environment with card swipe, biometrics and video surveillance along with 24/7 onsite security guards
• SaskTel Managed Hosting – Looking for a partner to manage your IT infrastructure? SaskTel Managed Hosting will ensure your critical data is kept safe and secure, and we will manage your IT infrastructure so you can focus on your clients.
Learn more about the benefits of the SaskTel Data Centre services.
Contact your SaskTel Representative.
1-800-SASKTEL | sasktel.com/datacentre Your Life. Connected.™