The
Canadian
FAll 2014
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. 29 NO. 1
IN THIS ISSUE... Branch News ................... 4 Executive Announcement Meet The Executive President’s Message ....... 6 Green & Blue are the Colours! Commentary .................... 9 The Duty to Accommodate and Family Status Commentary ................... 11 Tales of a Tricky Relationship Commentary .................. 14 United Way’s Day of Caring
BarNotes Editor
Kaylea Dunn McKercher LLP BarNotes Editorial Board Azure-Dee Farago Heather Sherdahl
Danielle Graff
Ashley Smith
Brenda Hesje
Kayla Stuckart
Brad Mitchell The 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.
Commentary .................. 15 Rider Fan Leads the CBA
National News ............... 22 Postcard from ............. 23 a Lawyer
Barely Barristers .......... 17 Probating Your First Holograph Will
Appointments ................. 25 Branch Initiatives.......... 26
From the Courts ............18 Comments from the Court of Queen’s Bench
Calendar of Events ...... 27
Pro Bono Spotlight .....19 Voices of the Self-Represented Pro Bono Spotlight ...... 21 Introduction to PBSC
Front Cover Acknowledgements 2014 Fall Collage 1. White Tailed Deer Fawn in Waskesiu Lorraine Coulman
4. Forrest Berries at Greenwater Provincial Park Murray Alberts
2. Forrest Landscape Brenda Hesje
5. Fox Yawning Lorraine Coulman
3. Fall Flowers Brenda Hesje
6. Lake Waskesiu Lorraine Coulman
CBA Saskatchewan represents more then 1,100 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice.
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EDITOR’S NOTES Letting Go of the Reigns Kaylea Dunn McKercher LLP Well, my CBA readers, this is it: I am finally letting go of the BarNotes reigns. This publication will now be shaped by the hands of Ms. Ashley Smith, who has been a dedicated and productive member of the Editorial Board during my entire time at the helm this past four years. You may trust me when I say that she will rock this job. Before you are totally rid of me, I need to express my appreciation for what I have taken away from the experience of sitting in the Editor’s chair. If I am being truthful, I did often curse (sometimes colourfully) the looming deadline, particularly given its growing tendency to fall precisely when I was up to my eyeballs with work and life. But since the first issue appeared with my smiling mug on it in the fall of 2010, I have faithfully clipped them into a binder stowed on my office bookshelf. Before bashing away at the keyboard for this last Editor’s Notes, I flipped through all sixteen issues. As I did so, many thoughts rushed to mind. BarNotes receives great generosity of time and talent from very busy practitioners, judges and educators, many of whom have agreed to compose original articles just for this publication. I have approached these people as they have navigated trials, closings, filing deadlines, family demands, and the odd and sundry daily tribulations that they were undoubtedly facing. They all graciously agreed to help us build the issues that you have seen. To them, I say this: •
To those more senior contributors: I know that you could have rested on your past volunteerism. You could have had a junior write the piece for you, and then shared the credit for it, but you did not. You saw the importance of sharing your own personal insights with others, and I take my hat off to you.
•
To those newer lawyers: you were contending with the learning curves of practice, perhaps also juggling the demands of young children, and you were quite nervous to know that many “type A” people would read your piece, and reflect upon your writing abilities, and you did it anyhow, so thank you. And you were glad once it was done, right?
•
Judges and professors and students: I know it may have been tempting to cloister yourselves away from the trenches of active practice; you could have focused more on writing for an audience filled only with your immediate peers. But you did not. You cared enough about the profession as a whole to add your voice to these pages. The CBA strives to be the “Voice of the Profession,” and could not accomplish that without you all.
In addition to BarNotes, I have served as Communications Chair this past four years, and in both capacities, I have connected with many people from all facets of the profession, which has allowed me to enjoy the true collegiality of the CBA. I have grown personally and professionally, as I have forged relationships with a great swath of talented, committed volunteers. These people have demonstrated the image of the lawyer that I had when I went to law school: engaged, involved, and regularly looking outward to the larger context of our profession within the community. I have enjoyed and appreciated the support of those serving with me on the Editorial Board during my time as Editor. It takes time and energy (and sometimes dogged persistence) to corral contributors, and while the faces on the Board have changed over time (except for you, Ashley!) each one has brought different talents to the table, and I thank you all for your service. Everyone should know this, but in case you do not, I am repeating it: much (if not most) of this publication is due to the team work of our inimitable Executive Director, Brenda Hesje and our Communications Officer, Kayla Stuckart. They provide much of the “meat” that you receive in your BarNotes hamburger (and yes, I just used a hamburger analogy). I am biased, but truly believe that Saskatchewan sets the benchmark for all other CBA Branch publications. Ladies, it has been a pleasure. In writing these notes, I have digested (in a new way) how much our Branch has done over the past four years. Not to detract from all of the national CBA news, but given our relatively small Bar in this province, our Branch has accomplished an incredible amount. As I flipped through the sixteen issues, I saw again the past reports on CBA activities on campus; on rural initiative tours; on Law Day events; on Midwinter Meetings; on Community Service awards; on the 2013 Canadian Legal Conference here in Saskatoon; and on busy and interactive Council meetings. This is just scratching the surface, and I have enjoyed being part of the beehive of activity within this Branch. Finally, I want to say a special thank you to those lawyers who, in the midst of their own busy lives, took the time to share kind words with me, after reading BarNotes. I have shared (perhaps overshared at times) many personal reflections in these Editor’s Notes, and I sometimes felt frazzled by the responsibility for getting decent content out to so many of those “type A” personalities that I referenced above. Your words of encouragement were saved. They were tucked away, to be read from time to time. And they were appreciated more than you can know. All the best.
Fall 2014 / BarNotes 3
BRANCH NEWS Executive Committee Announcement Gail Wartman, a partner with
SHARON PRATCHLER, QC,
McDougall Gauley LLP at its Moose Jaw Branch, was elevated to President of the Saskatchewan Branch of The Canadian Bar Association for the 2014-2015 term. Gail graduated from the College of Law at the University of Saskatchewan in 1978. Gail is engaged in General Practice, which includes Real Estate, Wills and Estates, Municipal Law, and General Civil Litigation. Most of her career has been in private practice, apart from eight years spent as an in-house lawyer for the City of Regina.
senior crown counsel with the Constitutional Law Branch of the Saskatchewan Ministry of Justice, was elevated to Vice-President of the Saskatchewan Branch of The Canadian Bar Association for the 2014-2015 term. This is Sharon’s 21st year as a public lawyer. She started in private practice, then moved into Public Prosecutions, specializing in commercial crime. Her primary love is courtroom work and she has spent much of her career in and around courtrooms. She has been the Registrar for the Court of Queen’s Bench and Provincial Court and in the latter role, was involved in the formation of the Regina Drug Treatment Court and Regina Domestic Violence Court. She received her Queen’s Counsel designation in 2005.
A member of the Saskatchewan Executive Committee for seven years, Gail was chair of the Membership Committee in Saskatchewan for six years, prior to becoming Treasurer in the 2012-2013 year and Vice-President in 2013-2014. She served for two years as Vice-Chair of the National Membership Committee, during which she also sat as a member of the National Sections committee and National Sections Executive. From 2011 to 2013 she was Chair of the National Membership Committee, which also made her a member of the National Finance Committee. Gail has been a voting member of the National CBA Council for 7 years. Outside of the legal field, Gail is a member of the Moose Jaw Wakamow Rotary Club and Cantabile Connection Community Choir. Her previous board experience includes Moose Jaw Festival of Words, Regina Family Service Bureau, United Church Housing Corporation, Prairie Christian Training Centre, a local housing authority, and various music festivals. Gail has been a member of two General Council (National) committees of the United Church – the Judicial Committee and the Manual Committee – as well as having served at a local level on the Church in Society Committee and Outreach Committees.
Sharon is married to Tom Irvine, also a public lawyer. They have one son, Graeme and his menagerie of pets – Buster and Chubs the cats, Sebastian the lop-eared bunny and a Yorkshire Terrier named Sweetpea.
Save the Date! 2015 Mid-Winter Meeting • Feb. 5-6th Delta Bessborough Hotel, Saskatoon
Gail grew up on a farm in West Central Saskatchewan, and a significant proportion of her clientele are farmers and ranchers. She writes a regular column for the Western Producer newspaper. During her Presidential term, Gail will focus upon issues of health and wellness for lawyers, succession planning, the Futures Initiative and how the practice of law is evolving.
5 Streams of Professional Development Watch for your copy of the Mid-Winter Meeting Brochure with our Winter Issue of BARNOTES, circulated early December!
4 BarNotes / Fall 2014
BRANCH NEWS Meet the 2014 - 2015 Executive Committee President
Legislation & Law Reform Chair
McDougall Gauley LLP 306.694.0052 gwartman@mcdougallgauley.com
Merchant Law Group 306.653.7777 emerchant@merchantlaw.com
Vice-President
Membership Chair
Ministry of Justice Constitutional Law 306.787.2527 sharon.pratchler2@gov.sk.ca
Ministry of Justice Regina Prosecution District 306.787.8207 loreley.berra@gov.sk.ca
Treasurer
Professional Image Chair
Robb & Dowling 306.522.2032 robertson@sasktel.net
Miller Thomson LLP 306.667.5620 cpanko@millerthomson.com
Immediate Past-President
Executive Director
Gail Wartman
Evatt Merchant
Sharon Pratchler, QC
Loreley Berra
Charmaine Panko
Neil Robertson, QC
Kylie Head, QC
Brenda Hesje
Ministry of Justice Innovation Division 306.787.5224 kylie.head@gov.sk.ca
CBA Saskatchewan 306.244.3781 1.800.424.8288 (SK toll free) brenda@cbasask.org
Communications Chair Lora Bansley
Information Services Corporation 306.798.0513 lora.bansley@isc.ca
You are invited to contact members of the Executive or the CBA Saskatchewan Branch Office if you have any questions or concerns regarding the CBA. In addition to the Executive Director, CBA Saskatchewan Branch Staff includes: Kayla Stuckart, Communications Officer 306.244.3897 / kayla@cbasask.org Lorraine Coulman, Administrative Assistant 306.244.3898 / lorraine@cbasask.org
Fall 2014 / BarNotes 5
PRESIDENT’S MESSAGE Green and Blue are the colours! Gail Wartman McDougall Gauley LLP “Be completely bilingual”…..”Learn to snowboard while I’m still young enough to endure all the falling”…”Become Branch President of The Canadian Bar Association”… These were some of the elusive wishes I had for my “next life” – things I thought were unattainable for this go-round. But about two and a half years ago I found myself in a situation where I could put my name forward for this office, and I am thrilled and humbled now to start my term as Branch President. At the outset, I thank the wonderful firm of McDougall Gauley for its encouragement, and especially, I thank my associate lawyers and the staff at the Moose Jaw office for making it possible for me to serve in this role. I extend thanks and congratulations to Kylie Head, QC, for her able leadership over this last year, and my great appreciation to our wonderful people at the Branch office – Brenda, Kayla, and Lorraine – who take our ideas and make them reality, on a daily basis. Thank you also to our dedicated team of volunteers – the members of the Executive, the Section chairs, Council members, people from our province who serve on various provincial and national CBA committees – your hard work is the heart and soul of the Association. As many of you will know, I am an unabashed fan of the CBA. One of my goals this year is to tell you why – and I hope my enthusiasm is contagious. Our profession is an honourable and engaging one. It is also a publicly-maligned one, and one fraught with stress, addictions, depression, and family breakdown. And it can be incredibly lonely and non-inclusive. Think about why you became a lawyer – or why you have remained in the profession. Was it to sacrifice your family and personal life to achieve success in the law? Was it to rise to the pinnacle in a cut-throat practice, regardless of the public’s view of lawyers as sharks and shysters? No. We wanted to make a difference. Each of us was blessed with good intellect, sound judgement, and the wherewithal to get through law school and articling, and be admitted to this profession. Our journeys and stories are incredibly diverse, but one thing unites us: we have all wanted to contribute in a positive way…to make a difference. Maybe there are some of you who have never doubted your decision to enter into, or remain, in the practice of law. If so, I am not among you. Many of my years have been challenging: the early years as a newly-admitted, sole practitioner, struggling to find mentorship and support; the search for jobs; the gender 6 BarNotes / Fall 2014
discrimination; and the difficult trade-offs between work and family. For much of my career, my attitude toward the profession was negative. Though we would never admit it, many of us in this profession feel like we are on the outside looking in. That person we all know, the successful partner in a large, high-power firm, who articled there and has been with them ever since – we see that person as representative of our profession. Not true. Most of the lawyers in this country are sole practitioners or in small practices. Many of us have plied our trade in several different settings, and some of us have even wondered why we are in the profession and whether we should stay. I share that history. Becoming involved in the CBA has changed my attitude toward my profession. I had always gone to section meetings and often attended the Mid-Winter Meetings, but getting more deeply involved at the Branch and national levels, and finding out what the CBA is all about, has been lifechanging. The workings of the various CBA committees on which I have served have been respectful, interesting, and inclusive. I feel I am making a difference by being part of it, and I believe in the work we are doing. And so do the friends I have made in the CBA from across the country. So much of the CBA’s work is in advocacy: submissions for legislative reform; interventions in precedent-setting court cases; and helping establish courts and legal aid systems in underdeveloped countries. The CBA also provides significant practice support: section activity both provincially and nationally; putting members in touch with others across the country in the same practice area; organizing educational seminars; and providing other substantive practice assistance. One of the bodies within the CBA, the Legal Profession Assistance Conference (LPAC), is a source of support for lawyers, judges, and law students who are experiencing depression, addictions, or other such challenges in their personal lives. The CBA strives to educate the public about the role and necessity of lawyers in society, to assist in improving the public’s perception of the law and lawyers. This is the purpose of one of its most popular and successful outreach events - Law Day – an annual spotlight on the legal profession involving mock trials, poster contests, fun runs, free legal clinics, and many other activities that vary from Branch to Branch across the country. The CBA has just released the Futures Report: Transforming the Delivery of Legal Services in Canada at the annual national conference of the CBA. Change is coming swiftly, and this
PRESIDENT’S MESSAGE BRANCH NEWS initiative will help us to define our profession’s future proactively, rather than staying static and reacting to the changes technology and other factors of change would impose upon us. The CBA itself is currently engaged in a “Re-Think” process, in which all aspects of how the Association delivers services will be fearlessly evaluated and, where necessary, changed. In our organization, as in our profession, it is a time for taking inventory. What are we doing? And why? And how is that working for us? I challenge each of you to do the same in your own life and practice, as you read and ponder the Futures Report and the recently presented Equal Justice Report, and as you participate in the surveys that will be a part of the CBA Re-Think. Why did I become and remain a lawyer? What are my present and longterm goals? What gives me satisfaction in my work? Am I making a positive difference, or do I still want to do that through the practice of law? Thank you for your involvement in the CBA, at whatever level it is. If you are on the margins, I urge you to get more involved – become a part of this team so many of us loyally support. I promise you friendship, intellectual discussions, practice and personal support, and a journey that will affirm your career choice. Most of all, it will make you proud to be a lawyer.
Contact Gail with any suggestions or feedback. 306.694.0052 / gwartman@mcdougallgauley.com
Lawyers Concerned for Lawyers here for you when you need it.
BAr Judicial COUNCIL Reps Representatives of the Bar Judicial Council exchange views as to how the administration of justice within the province can be improved. Matters of concern and interest are exchanged. If you have suggestions on how the administration of justice can be improved, suggestions can be given to the appropriate representative listed below.
Court of Appeal Murray Sawatzky, QC McDougall Gauley LLP, Regina msawatzky@mcdougallgauley.com Christine Glazer, QC McKercher LLP, Saskatoon c.glazer@mckercher.ca
Queen’s Bench Michelle Ouellette, QC McKercher LLP, Saskatoon m.ouellette@mckercher.ca
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 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
Jenn Pereira Robertson Stromberg LLP, Saskatoon j.pereira@rslaw.com
personal or professional problems. Assistance is provided at no cost to all those who qualify for the program.
Provincial Court Bonnie Missens Sask. Indian Gaming Authority, Saskatoon bonnie.missens@siga.sk.ca
1.800.663.1142
TTY: 1.888.384.1152 www.homewoodhumansolutions.com
Suzanne Young Grayson & Company, Moose Jaw syoung@graysonandcompany.com
Fall 2014 / BarNotes 7
BRANCH NEWS
Distinguished SERvice AWard Call for Nominations The Distinguished Service Award recognizes exceptional contributions and/or achievements by members of the Branch in the area of law. Eligibility Must be a member of CBA Saskatchewan; • Must have made exceptional contributions: involving a significant law-related achievement for the benefit of residents of Saskatchewan; or to the legal profession in Saskatchewan; or to the jurisprudence in Saskatchewan or Canada; or to the law or development of the law in Saskatchewan; • Members of the current Executive Committee are not eligible; • Except under extraordinary circumstances, former members of the Branch Executive are not eligible for this award for a period of three (3) years from the date that their respective service on the Executive ended; • Except under extraordinary circumstances nominees must be able to attend the Award presentation event. •
Presentation The Distinguished Service Award will be presented at the Branch Mid-Winter Meeting Friday luncheon.
Nomination Procedure The nomination must include the following: • A Nomination form including full details as to why the individual should receive the award; • The signatures of three (3) members; • Written confirmation from the nominee agreeing to have his/her name put forward for the Award; • The full name, address, telephone, and email information of both the nominee and the three (3) nominators; • A concise curriculum vitae of the nominee; • Letters of support, if possible. Complete nominations must be submitted to the Executive Director of CBA Saskatchewan.
8 BarNotes / Fall 2014
Selection • Selection
made by CBA Saskatchewan Awards Committee; • Nominations are valid for two (2) years; • The number of Awards to be presented annually will not exceed two (2).
Award The winner shall receive a sculpture of the blind lady of justice by artist Jim McKay and a certificate. The winner will be announced in the local papers and a tribute will be published in the newsletter, BarNotes.
Deadline for Submission November 17th, 2014 - 4:30 PM Nomination forms are available online: http://bit.ly/2015DSA
COMMENTARY The Duty to Accommodate and Family Status Professor Beth Bilson, QC College of Law, University of Saskatchewan Over the life of the Canadian Charter of Rights and Freedoms and of human rights legislation, the duty to accommodate has evolved as an essential vehicle for the realization in practice of the constitutional goal of achieving equality. The duty imposes obligations on employers and those providing public services to ensure that their practices do not have a discriminatory impact. The nature of these obligations has largely been defined and elaborated in the decisions of labour arbitrators and human rights tribunals, with the courts on occasion commenting on the general principles to be applied. How the duty to accommodate should apply to the prohibition of discrimination on the basis of family status has become a significant question, and considerable controversy has surrounded recent developments on this issue. At one time, claims of discrimination on this ground were based on the simple existence of family relationships. These claims might be aimed at practices which restricted opportunities to single people, for example. More recently, claims have been made for accommodation related to particular obligations or requirements arising from participation in a family, and the discussion of the responsibility of employers or those providing public services to make adjustments based on the exigencies of care-giving within families has been marked by controversy, complexity and uncertainty. The May 2014 decision of the Federal Court of Appeal in Johnstone v. Canada (Border Services), 2014 FCA 110, has provided some clarification of the parameters of the duty to accommodate for family status, though a decision arising from one factual context cannot be expected to answer all of the outstanding questions about the scope of the duty. As a full-time employee of the Canada Border Services Agency at Pearson International Airport since 1998, Fiona Johnstone had been subject to a rotating shift plan which cycled employees through a series of variable shifts over the full twenty-four hours. When her first child was born in 2003, Ms. Johnstone asked to be accommodated by having a fixed shift of full-time daytime hours that would be consistent with her available childcare options. Though the CBSA did provide such fixed shift schedules to accommodate employees on medical or religious grounds, they denied Ms. Johnstone’s request, offering her instead a fixed shift option which had the effect of making her a part-time rather than full-time employee, restricting her access to benefits and training and advancement opportunities. She renewed her request for
further accommodation after her second child was born in 2005, but the request was again denied. In the meantime, she had filed a complaint with the Canadian Human Rights Commission alleging that the refusal of her request constituted discrimination, a complaint which was upheld by the Canadian Human Rights Tribunal. The federal government’s application for judicial review was dismissed by the Federal Court, and the Federal Court of Appeal upheld that decision. The Federal Court of Appeal explicitly rejected the government’s argument that “family status” refers only to the immutable characteristic of being in a family relationship, relying instead on the broader meaning given to the term by other courts and tribunals, which included the obligations associated with membership in a family – in this case the obligations of parents to children. This broader interpretation the Court found to be more consistent with the liberal and purposive interpretation of human rights legislation directed by the Supreme Court of Canada in cases like B. v. Ontario (Human Rights Commission), 2002 SCC 66. The Court recognized that not all aspects of the parent-child relationship will impose a duty to accommodate. In this respect, the Court found that the duty to accommodate reaches those obligations “that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.” For example, a parent has a legal obligation not to leave small children unattended, and this leads to a requirement to find suitable child care if the parent is going to be absent. The Court distinguished this aspect of family status from “voluntary family activities, such as family trips, participation in extracurricular sports events, etc.” noting that these kinds of activities represent personal choices on the part of parents, not core parental obligations. This kind of personal choice would not, in the view of the Court, necessarily require accommodation. With respect to the requirement that a claimant for accommodation establish prima facie discrimination, the Court rejected the idea that a different test should apply to family status discrimination than to discrimination on other grounds, saying that there should be “no hierarchies of human rights.” In sum, the Court found Continued on Page 10...
Fall 2014 / BarNotes 9
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that the claimant must show: 1) that a child is under his or her care; 2) that the obligation in question engages the individual’s legal responsibility for the child, not personal choice; 3) that the claimant has made reasonable efforts to meet childcare obligations through reasonable alternative solutions; and 4) that the impugned workplace practice interferes with the fulfilment of childcare obligations in a non-trivial way.
There is, no doubt, much ground still to be covered on the subject of family status discrimination, but the Johnstone decision provides some welcome signposts.
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BRANCH NEWS COMMENTARY Tales of a Tricky Relationship Anita Wandzura McKercher LLP This article examines prevalent issues stemming from the “tripartite” relationship, which often arises when an insurer retains legal counsel to defend a court action against its insured or to pursue a subrogated action. Generally speaking, the “tripartite” relationship refers to the relationship among an insurer, its insured and legal counsel retained by the insurer. As all experienced legal counsel know, too often, the tripartite relationship presents confusion and, more importantly, may be characterized by conflicts among the parties. These conflicts can be actual, potential or a matter of perception. These issues are examined in this article through the lens of recent jurisprudence.
Control Issues The Ontario Superior Court of Justice recently examined the issue of who controls “the defence” in a tripartite relationship. In Simply Kids Ltd. v. Vertigo Investments et al., 2013 ONSC 2731 [Vertigo], the defendant (Vertigo) brought a motion for a determination of whether its insurer had a duty to defend it in the court action. It also sought a declaration compelling its insurer to retain independent legal counsel to conduct its defence in the court action. At paragraph 46 of the decision, the Court reviewed the general principle that, pursuant to the insurance contract, the insurer usually conducts the defence (including the appointment of defence counsel); however, this general principle is not absolute. If a conflict of interest arises between an insurer and insured, it can give rise to an “appearance of impropriety” requiring the appointment of counsel for the insured. See Brockton (Municipality) v. Frank Cowan Co., (2002), 57 O.R. (3d) 447 (C.A.) at paras. 31-33 and Zurich of Canada v. Renaud & Jacob, [1996] R.J.Q. 2160 (Que. C.A.). Determining the “degree of conflict” necessary to trigger the requirement of independent counsel for the insured is an intellectual exercise. Often there is no clear answer, but the court will attempt a balancing act. It will weigh the insured’s right to a full and fair defence of the civil action against the insurer’s right to control that defence, given the potential it faces of an ultimate obligation to indemnify. The balance will tip in favour of the insured when counsel’s mandate (from the insurer) can reasonably be said to conflict with his ability to fully defend the insured in the civil action: Brockton, supra. The court will not indulge an insured’s request for separate legal counsel if the insured is being “abundantly cautious”: Theriault v. ING Insurance Company of Canada, 2006 NBQB 407, recently followed in Brocke Estate v. Crowell, 2014 NSSC 269 at para. 77. In Vertigo, the Court noted that there were allegations of intentional misconduct against Vertigo, which would impact the
insurer’s obligation to indemnity Vertigo. Nevertheless, it was not convinced that there was a sufficient “degree of conflict,” because legal counsel (appointed by the insurer) would owe a duty of good faith to defend the action. There was no persuasive evidence that legal counsel would not adhere to this duty, or that this duty would conflict with the instructions provided by the insurer to legal counsel. It may be possible to discern key differences between Vertigo and Graham v. Coakley, 2009 CanLII 22549 (Ont. S.C.) [Coakley], where the Court did order an insurer to fund separate legal counsel for the insured. See also Glassford v. TD Home and Auto Insurance Co., [2009] O.J. No. 1011 (S.C.J.). In Coakley, a coverage issue arose concerning allegations of intentional conduct by the insured, as opposed to negligence. The Court held there was a sufficient degree of conflict between the parties, because the insured was reasonable in his perceived concern that the insurer would steer the defence in a direction that would exclude the insured from coverage: Coakley, supra at para. 33. This conclusion appears to flow from the fact that the allegation (intentional acts) raised a distinct risk of prejudice to the insured, which is not the case with negligence allegations.
Calling the Shots Who maintains control over the defence and in effect, “calls the shots” is also influenced by the possibility or existence of an uninsured loss on the part of the insured. This issue was recently examined by the Supreme Court of Newfoundland and Labrador in Raso v. Home Depot of Canada Inc., 2013 NLTD(G) 153 [Raso]. In Raso, the insurer paid a claim to the insureds concerning the installation of a roof by the defendant, Home Depot. Relying on its contractual rights under the insurance contract, the insurer commenced a subrogated claim against Home Depot. The insureds also commenced a separate claim against Home Depot, seeking compensation for losses that were not covered under their insurance contract. The insureds and insurer had separate legal counsel. Upon discovering the separate claim by the insureds, the insurer sought to consolidate the actions and thereafter, maintain control over the consolidated action. The insureds consented to consolidation, but contested the insurer’s position that it should have control of the action. The court noted that the general rule at common law is that: “if an insured is not fully indemnified under a policy of insurance he is entitled to commence action Continued on Page 13...
Fall 2014 / BarNotes 11
COMMENTARY Continued from Page 11...
to recover the uninsured loss and have control of the litigation subject to his duty to act in good faith as regards the recovery of the insured portion”: Raso, supra at para. 10. Crucially, this general principle was modified by the insurance contract between the insureds and the insurer; it provided a right of assignment from the insured to the insurer, and moreover, imposed a contractual duty on the insureds to account for any other monies recovered. The court held that the insurer was entitled to control over the consolidated action, because it “exhibited a spirit of co-operation” that would “best protect all parties in the agreed consolidated action”: Raso, supra at para. 15. The circumstances in Raso can be contrasted with those in Durling v. Sunrise Propane Energy Group Inc., 2012 ONSC 6328 [Durling]. In Durling, a class action had been certified, stemming from a series of explosions that had occurred in 2008 at a propane facility in Toronto. In addition to a class action, which was controlled by the insurer, several insureds had commenced separate actions. The insurer sought to stay these separate actions, arguing that the insurance contract provided control of the litigation to the insurer, regardless of whether it had paid the insured for all insured and uninsured losses. Akin to Raso, the Court noted that the starting point is that “the insured controls the litigation until the insured has been fully indemnified for his or her insured and uninsured losses”: Durling, supra at para. 45. Next, the Court examined the issue of whether there was plain language in the insurance contract (especially the subrogation clause), which altered the insured’s right to control the litigation. In Durling, there was no express provision, which the case law requires, so control remained with the insureds. See also Zurich Insurance Co. v. Ison T.H. Auto Sales Inc., 2011 ONSC 1870, aff’d 2011 ONCA 663 at paras. 34-36.
against the insured. The Court stated that “[b]y the very nature of its relationship in defending the insured, defence counsel, whose fees are being paid for by the insurer, will come into possession of privileged information that may impact on coverage issues… Defence counsel is in conflict if it engages in the role of providing coverage advice or passing along confidential information that may be used by the insurer to deny coverage”: Pope, supra at para. 9. After reviewing the relevant case law, the Court noted that “where defence counsel is appointed and paid for by the insurer, defence counsel must act as if it had been personally retained by the insured”: Pope, supra at para. 14. It likely comes as no surprise that ultimately, the Court held that counsel defending the insured must do so without regard to the coverage issues. In closing, this article examines some of the prevalent issues that may arise in the context of the infamous tripartite relationship. The case law demonstrates that these issues continue to surface, despite the time-honoured origins of insurance law and its wellestablished principles. These cases serve to remind legal counsel that when they find themselves in a tripartite relationship, they should be alive to competing interests over control of the litigation, and the reality that conflicts of interest may arise as a result of the confidential information entrusted to them by the insured.
Getting into Hot Water In addition to issues already discussed, the tripartite relationship is tricky because it creates an environment where the insured or counsel can find themselves in “hot water”. Most recently in Dervisholli v. Cervenakj, 2012 ONSC 7137 [Dervisholli], an insurer retained two lawyers from the same law firm to represent two insureds, which were adverse parties to one another. The insureds were in a motor vehicle accident and by happenstance, they were both insured by the same insurer. Instead of sending one insured to legal counsel at a different law firm, two lawyers from the same firm were retained to represent the two insureds. The law firm made “no pretence of erecting a ‘Chinese wall’ or maintaining a ‘code of silence’ between its files” and ultimately, the court held that there was clearly a conflict of interest, and the law firm was removed: Dervisholli, supra at para. 12. The recent decision in Pope & Talbot Ltd. (Re), 2011 BCSC 548 [Pope] is also noteworthy. In Pope, the insurer had afforded coverage to the insured, but on the basis of a reservation of rights. The insurer also sought to participate in the underlying litigation
Fall 2014 / BarNotes 13
COMMENTARY United Way’s Day of Caring Jodi Wildeman & Kristél Kriel MacPherson Leslie & Tyerman LLP One in three of Regina’s children are not ready to learn on the first day of school. This means that the child lacks readiness in areas such as physical health and well-being, social competence, language and thinking skills, and communication skills. Saskatchewan is last in Canada when it comes to school readiness for our children, and Regina is last in the Province. Over the next five years, United Way Regina is placing a priority on investing in the focus area of All That Kids Can Be and improving educational outcomes for Regina’s children. On Wednesday, July 23, 2014, a group of Regina lawyers learned more about United Way Regina’s children’s programing by participating in a United Way Day of Caring event at Albert Community School. Lawyers from MLT, Miller Thomson, McKercher and Kanuka Thuringer joined fourteen elementary school children to learn about and make traditional dream catchers. The children’s day started out with a nutritious breakfast provided by United Way Regina and a story about dream catchers. Then we all pulled out our creative skills to weave dream catchers with the children – full of colourful beads, feathers, and an intricate web intended to catch the children’s negative dreams and let their positive dreams through. After much fun and laughter, the children left us to have lunch at the school before they returned home for the afternoon.
activities 4-days a week for 3-weeks this summer. The program also addresses food security issues by providing healthy snacks, lunches, and a weekly attendance incentive Good Food Box for students and their families to take home. This initiative is just one example of how donations to United Way Regina are used to change lives in OUR community. There are numerous law firms in Saskatchewan who hold Campaigns each year to raise funds for United Way. These Campaigns allow the legal community to give back to others less fortunate, and to help shape the kind of community we want to live in. In addition, a number of our Saskatchewan law firms now have GenNext Ambassadors to the United Way, who help get their peers and colleagues involved with United Way Campaigns, engagement events, and volunteer opportunities. GenNext Ambassadors in law firms are part of a growing network of young professionals in their 20’s and 30’s who are looking to meet new people, develop new skills, and make a difference in our community. If your firm is interested in learning more about holding a Campaign to support United Way, or if you or someone you know would like to join the GenNext Ambassador team, please contact Jodi Wildeman at JWildeman@mlt.com or Kristél Kriel at KKriel@mlt. com. Let’s give our kids in Regina an opportunity to be All That Kids Can Be.
This is all part of United Way’s Summer Success Program that focuses on reducing the “Summer Slide”. Over the summer, many students forget what they learned and “slide” backwards in their academic performance. Teachers are then faced with spending the first 6 to 8 weeks of each new school year re-teaching the previous year’s material in an effort to help students get back on track. For many low-income students – without access to books or one-on-one reading opportunities – this is equivalent to 2 months’ worth of skill loss according to the National Summer Learning Loss Association. United Way is dedicated to closing the achievement gap for Regina’s students. In partnership with 2 local school divisions, 3 inner-city community schools, 11 passionate teachers, and over 80 students, the Summer Success Program provides students who are already falling behind with reading support, access to books and literacy-rich 14 BarNotes / Fall 2014
Group shot from United Way’s Day of Caring
COMMENTARY Rider Fan Leads the CBA Michele Hollins, QC Dunphy Best Blocksom LLP My ties to Saskatchewan are as long and deep as poplar roots. I grew up spending my weekends and summers on a farm in southeast Saskatchewan, exploring the old barns and sheds, sitting in trees for hours and riding around on the combine with my Dad. I know that Saskatchewan is much more than this, especially now as it enjoys a new prosperity and a new voice in the political landscape, but to me it will always evoke memories of calm breezes over beautiful crops of grain and everything else that made my start in life so idyllic. Much of the time, it is difficult to recapture that sense of calm. Our profession is hectic, stressful and demanding. It can be hard to explain to our friends and families what we do or why it is important, and that can feed a sense of isolation - a recipe for potentially debilitating stress and depression. One of my priorities in my year as President is to broaden the public discussion around issues of personal wellness; both the importance of identifying and getting help with crisis or near-crisis situations and also the importance of a purposeful approach to mental health. Another of my priorities as President is to advance initiatives dealing with diversity in the profession, particularly the retention and advancement of women. An important step is obtaining better data. It is difficult to improve anything without an accurate picture of the current state of affairs. While I believe anecdotal evidence to be genuinely and uniquely valuable, it is incontrovertible that comprehensive, quantitative data is required if we are to “move the yardsticks”. The CBA has already called upon governments to publicize the criteria for judicial appointments and the statistics on the gender breakdown of applicants. If diversity is a desired outcome, we should be working together to find the best qualified candidates reflecting the society we serve. The same rationale holds true for the leadership of companies, the management of law firms, holding political office, and any other number of organizational structures in which women are underrepresented in the highest positions. The CBA Futures Report released in St. John’s at the CBA Legal Conference also called for more diversity data, specifically from law schools and law societies. The CBA can and should play a central role in helping us grow into a profession that is itself more reflective of society. This can only happen if we start with a more diverse group and then support both the lawyers and the law firms in making this happen.
“Re-Think”. Just as our profession is looking at significant change in everything from regulation to technology to access to justice, so must our own organization consider how to better prioritize and undertake the work of a professional and voluntary membership organization like the CBA. Your Board of Directors will soon be reviewing and discussing a detailed work plan that will involve extensive consultations on absolutely every aspect of what we do, why we do it and how we do it. I am excited to hear your feedback and ideas. This Re-Think will be most successful if the voices of many different experiences, backgrounds and perspectives are heard.
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BARELY BARRISTERS Probating Your First Holograph Will Krista Evanisky Kanuka Thuringer LLP Knowing how to properly apply for a grant of letters probate is a useful skill to have in your repertoire. Unless there are unusual or unique factual circumstances, preparing and submitting probate applications can be pretty straightforward. You will of course need to be familiar with the Queen’s Bench Rules, The Administration of Estates Act and the appropriate court forms. The procedure for probating a holograph will (a will prepared wholly in the handwriting of the testator) is essentially the same as any other will, but, there are a few different issues you need to keep an eye out for. With any application to the court, it is important to know what type of application you need to bring. Sometimes when people write holograph wills, they forget one of the most important things – appointing an executor. If this is the case, you will need to apply for an application for letters of administration with will annexed. If there is an executor appointed, a standard application for letters probate will do. One document that is different is the affidavit used to verify the testator’s handwriting. In an application for letters probate of a non-holograph will, one of the witnesses to the will must swear an Affidavit of Execution of Will which states that they saw the testator sign the will. Because there are often no witnesses to a holograph will and in fact, a witness is not necessary to make the will valid, you must find another person who can verify the handwriting in the will. The person attesting to this cannot be a beneficiary or a spouse of a beneficiary. In many cases, this eliminates most of the people who might be able to verify the handwriting. On more than one occasion, I have had to get the client to search high and low to find someone who can swear this document. Some suggestions for finding the right person would be a colleague, neighbour, accountant or business partner of the testator. Another important consideration for probating a holograph will is making sure that the name of the executor as it is stated in the will is actually how that person spells their name. The number of spelling errors in wills is often surprising (not even just holograph ones, ones that are done by lawyers!) It is not always the case that someone is spelling their child or spouse’s name wrong in a holograph will, but it does happen where they use a nickname or shortened name. If there is an inconsistency with the executor’s name, it is often a good idea to err on the side of caution and include an Affidavit of Identity as well. If you do not have this and the names do not match up, you could get the application back and be asked to resubmit with the appropriate affidavit.
On September 16th, we held our annual Wine & Cheese Welcome Reception at the College of Law. Over 100 students were in attendance to register for a CBA membership. Special thanks go out Dean Sanjeev Anand, QC, Career Officer Terri Karpish, Law Student Association CBA Rep Amjad Murabit and Aboriginal Law Student Association CBA Rep Stacey Jestin. We couldn’t have done it without your help!
Lawyers: PBSC Needs You! ) Who we are: a group that matches lawyers and law students with non-profit organizations in need of free legal services ) How you can help: volunteer 5-10 hours of your time over the school year to supervise a law student ) How you can get involved: email the PBSC Coordinators at probono.sask@usask.ca
Fall 2014 / BarNotes 17
FROM THE COURTS Comments from the Court of Queen’s Bench The below are comments of Chief Justice Popescul from the CBA Annual Meeting, June 2014 Chief Justice M.D. Popescul spoke to members at the annual meeting of The Canadian Bar Association (Saskatchewan Branch) in June. He thanked the organizers for the invitation to speak at the annual meeting and commented that the tradition of asking the Chiefs of each Court to speak at the annual meeting was a great tradition that has been developed. The Chief Justice reported that the Court of Queen’s Bench is in wonderful shape. The newest judge of the Court, the Honourable Mr. Justice Don Layh, will be sworn in at the courthouse in Yorkton on July 15. Currently, there is one vacancy on the Court. The face of the Court has changed substantially over the past few years. The Chief Justice noted that there are 33 Queen’s Bench positions in Saskatchewan, and since he became Chief Justice, a little over 2 ½ years ago, he has sworn in 11 new justices. Simple arithmetic demonstrates that one third of the Court is relatively new. Despite the fact that there are a number of new justices on the Court, he stated that he was not concerned because the quality of the people filling the vacant positions were top-notch. He stated that if we continue to get “talented, experienced, dedicated and hard working people” on our Court, we will remain in very good shape for the years to come. The Chief Justice indicated that the addition to the Saskatoon courthouse has now been occupied by the judges. The addition is excellent and a significant improvement over the dated quarters previously occupied by the Court. Two new courtrooms are in operation. Courtrooms 7 and 8 are “smart courtrooms” that have up-to-date technology including first‑rate audio/ visual equipment, a superior sound system, etcetera. The other courtrooms in the old building will be renovated and will also be “smart courtrooms”. The Chief Justice provided projections as to completion dates on the ongoing renovations. He warned, however, that these are simply guesstimates, and some of the previous projections have been off in the past. The projections are as follows: (a) The addition is complete – more or less (b) May 2014 to October 2014 (i) top floor – gutted (ii) Law Society library gutted (c) October 2014 to March 2015 (i) Bottom floor gutted (ii) March 2015 Registrar moves into addition (although this may happen much sooner) (d) March 2015 to September 2015 (i) Middle floor gutted and renovated (ii) Family Law staff moved in 18 BarNotes / Fall 2014
In the final result, the size of the existing courtroom facility will have almost doubled. There will be eight courtrooms, five pretrial rooms, and a chambers room. All the judges will be under one roof, and there will be three courtrooms capable of handling juries. The Chief Justice then went on to talk about the Queen’s Bench Bar Judicial Council. The Queen’s Bench Bar Judicial Council is made up of representatives of The Canadian Bar Association (Saskatchewan Branch), the Law Society of Saskatchewan and the Saskatchewan Trial Lawyers Association. Those representatives meet with representatives of the Court, including the Chief Justice, and exchange views as to how the administration of justice within the province can be improved. Matters of concern and interest are exchanged. If anyone has suggestions on how the administration of justice can be improved, their suggestions can be given to the Court through this committee. The Chief Justice cautioned the members present that there was an administrative notice made effective January 1, 2014 that reminded counsel that pretrial briefs were to be filed 10 days prior to the pretrial conference. The administrative notice warns counsel that should there be a late filing, they could end up with their matter being adjourned or costs assessed against their client or themselves personally. The Chief Justice also reminded the members present that the practice directives and administrative notices can all be found online at the Court’s website, which is www.sasklawcourts.ca. The Chief Justice then spoke about the new Rules. He said that they were working extremely well and that there were far less glitches in the Rules than he had anticipated. There will be some changes made in December of 2014 relating to relatively minor matters that have been discovered during the past year. The Chief Justice invited anyone who has a problem with the Rules to notify the Registrar, Jennifer Fabian, who will then pass on the information to the Chief Justice. The Chief Justice pointed out that concerns in the past have been raised which have resulted in a change to the Rules. He pointed to, for example, the summary conviction rules being changed as a result of constructive comments made by members of the Bar. The Chief Justice spoke about the Queen’s Bench Tariff of Costs. This is a committee chaired by Mr. Justice Gabrielson. The project is coming along very nicely, and the committee members are working very hard to present to the Court a new Tariff of Costs. The old Tariff of Costs is very outdated and is in need of a revision. Finally, the Chief Justice thanked the Canadian Bar Association for speaking for judges when they cannot speak for themselves. He indicated their efforts have not gone unnoticed by the judiciary, especially recently. He stated that some of the public statements made by the Canadian Bar Association in support of the judiciary have been noticed and appreciated.
PRO BONO SPOTLIGHT Voices of the Self-Represented: The National Self-Represented Litigants Project Final Report Nicole Sarauer Pro Bono Law Saskatchewan In May, 2013, The National SelfRepresented Litigants Project, spearheaded by Dr. Julie Macfarlane, released its final report entitled “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants”. This group sought to document and analyze the experiences of self-represented litigants in Canadian civil and family courts and recommend changes and innovations to respond to the reality of self-represented litigants. The report collected data from 259 self-represented litigants (“SRL”) in Alberta, Ontario, and British Columbia who participated in personal interviews and focus groups. They also interviewed over 100 court staff, who typically are the first contact made by a SRL. The findings of the study and recommendations are interesting, and should be given some thought in Saskatchewan. One of the first questions asked of the SRLs was why they were representing themselves in court. The overwhelming response was that they were unable to afford to retain, or to continue to retain, legal counsel. Of the sample, 53% had counsel earlier in their action, but had to discontinue after exhausting their ability to pay, or by having legal aid withdraw from their matter. It’s clear from the statements made by these individuals that their experiences with the court system are marked with fear, stress, and frustration. They are often overwhelmed with the complex court processes and the inability to receive help in finding the right forms, completing the documents, and court procedures. They complain of receiving inconsistent information from court staff and judges, and that the efforts made to simplify court forms is not sufficient. SRLs also noted that they were never offered mediation, and felt that when used, they were not taken seriously by the lawyers on the other side. Even some of the court staff noted that they have difficulty completing the court forms and keeping up with the changes in the process. Further, both court staff and SRLs complained about the unclear distinction between legal information and legal advice, which places an unfair burden on court staff who are consistently asked by SRLs for help. Some of these comments and complaints about these experiences may be a bit difficult to swallow. However, it is clear now that selfrepresented individuals are growing in numbers, a reality that will not change any time soon. Therefore, a commitment to improve access to justice includes a commitment to improve the experiences of SRLs as they navigate the court system.
The Project concludes its final report with a series of recommendations. I’ve included a few of those below for you to think about: • Set ‘best practice’ standards for court forms and guides. More specifically, these standards should seek to reduce the multiplicity of forms, simplify language (the study found that most forms are at a grade 12 or higher reading level and frequently includes legal terminology), and ensure that the information is consistent; • Continue to develop online materials, including consolidating information as much as possible to avoid duplication and navigation among multiple websites, maintain active links, and ensure the websites are at an appropriate reading level; • Ensure that local information services to organizations that will provide legal help are clearly signposted both in the court house and on the court website; • Re-examine the distinction between legal information and legal advice and give court staff more and clearer guidelines to help them determine what they may and may not provide as information to an SRL; • Train and support court staff, so they are prepared to deal with members of the public who are distressed and emotional, and have access to counseling and stress management programs; • Court houses should offer an SRL orientation workshop so they have an understanding of the processes that follow filing initial court documents; • Mediation services should be signposted both in the court house and on the court website, and mediation services should consider offering orientation and training specifically for SRLs; • Courts should consider extending opening hours to accommodate SRLs who must take time away from their employment in order to file documents; • Promote the use of unbundled legal services throughout the legal community through the Law Society and CPD training; • Lawyers should provide complete and transparent information about costs to their clients before presenting them with a bill; • Encourage further judicial training to support judges in working with SRLs; and • Recognize that most SRLs are unrepresented by necessity, and not by choice. This study is meant to encourage discussion in the hope that we can all work together to improve our justice system. Read the full report: http://bit.ly/NSRLProjectPDF.
Fall 2014 / BarNotes 19
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PRO BONO SPOTLIGHT Introduction to Pro Bono Students Canada Chris Clarke & Michelle Caron Coordinators, Pro Bono Students Canada PBSC’s Program Coordinators, Chris and Michelle, have been contacting firms throughout the summer and early September requesting volunteers. If you are interested in participating with PBSC as a lawyer supervisor, if you have your own pro bono file and would like assistance, or if you know of an organization which might need assistance with a legal question please contact our office at (306) 966-7757 or probono.sask@usask.ca. If you would like to be contacted for future volunteer opportunities, please email us to let us know.
Thanks to Last Year’s Participants
What PBSC Does Pro Bono Students Canada (PBSC) is a national organization that has chapters in every law school across Canada. PBSC Saskatchewan connects University of Saskatchewan law students with community organizations that are in need of legal services. This mutually beneficial relationship allows for law students to put their legal education into practice and organizations to receive free legal services which otherwise may not have been an option. PBSC is also an opportunity for students to be exposed to the pro bono ethic that will benefit the legal profession and the community in the future.
New 2014-2015 Program Coordinators The Program Coordinators for the upcoming 2014-2015 school year are Chris Clarke and Michelle Caron. Chris Clarke will be entering his third and final year of law school and was born and raised in Regina. Michelle Caron, originally from Thunder Bay, has family roots in southern Saskatchewan and is entering her second year at the College of Law.
Lawyer-Supervisors Needed for 2014-2015 School Year In order for the 2014-2015 school year to be another success, we need the help of Saskatchewan lawyers who are willing to lend their time, effort and knowledge to the projects. We have several projects that will be continuing from last year as well as brand new and exciting projects! PBSC’s volunteer lawyers not only give their time and effort to the projects but also provide support and guidance to the students in this unique hands-on learning experience. A volunteer lawyer’s time commitment consists of approximately 5-10 hours over the school year. In these hours the volunteer lawyer will ensure that materials submitted to the organizations are accurate and complete. It also enables students to network with knowledgeable members of the legal community who will one day be their colleagues.
PBSC Saskatchewan would like to thank all of the amazing law students and lawyers who make our program great. This past year, 81 law students worked with 15 generous lawyer-supervisors to provide invaluable legal services to 22 non-profit organizations and, by extension, hundreds of the non-profits’ vulnerable and disadvantaged clients. The success of last year’s program was in large part due to our supporters in the legal community and the community at large. This year, the program has grown to need over 100 students and more than 30 lawyer supervisors. Without the ongoing support of the Saskatchewan legal community, and the University of Saskatchewan College of Law students, many of these organizations will not obtain the assistance they require. Be sure to contact your PBSC coordinators to participate in the program to provide valuable assistance to organizations, and invaluable experiential learning to current law students.
Thanks to the College of Law and PBSC National Office PBSC would also like to extend our appreciation for the support that we receive from the College of Law at the University of Saskatchewan and the PBSC National Office. The College of Law continues to support our PBSC chapter both financially and symbolically--PBSC is very fortunate to have been granted the most prominent student office in a fantastic location. This location is just one reflection of the College’s commitment and continued assistance in encouraging the Pro Bono ethic in students. We are also proud to be part of a national network organized by PBSC National Office, which provides us with ideas, inspiration, and support.
Consciously or unconsciously, every one of us does render some service or other. If we cultivate the habit of doing this service deliberately, our desire for service will steadily grow stronger and will make, not only our own happiness, but that of the world at large. - Mahatma Gandhi
Fall 2014 / BarNotes 21
NATIONAL NEWS Highlights from the Association New CBA President
CCCA News Geoffrey Creighton, CCCA Past Chair and Senior VP, General Counsel, Secretary and CCO with IGM Financial Inc., will be the first chair of In-House Counsel Worldwide, which was formalized in Singapore this past June.
Read for more details: http://bit.ly/CCCAnews-Fall2014
The Legal Futures Initiative The headline item from this year’s CBA Legal Conference in St. John’s, NL, was the release of the final report from the Legal Futures Initiative.
Incoming CBA President Michele Hollins stands with her daughters
Michele Hollins was sworn in as CBA President, receiving the chain of office from Fred Headon, at the 2014 CLC. Saskatchewan native and Calgary resident Michele describes herself on Twitter as someone who “Loves the law, NFL, food, wine, my daughters, CBA, being outside and life, obviously not in that order.”
Futures: Transforming the Delivery of Legal Services in Canada is the product of two years of research and consultation with stakeholders in and outside of Canada’s legal system. The report’s recommendations touch on everything from the need to change the way we educate lawyers to the need to liberalize the regulations governing the profession in order to better serve clients.
Report the report: http://bit.ly/CBAFutures-ReportPDF2014
As president, Michele will be taking on a leadership role in the association’s two biggest initiatives, Access to Justice and Futures. The final report from the Futures Initiative, she says, touches on some issues that are “nearest and dearest” to her: women in the profession, diversity and wellness among lawyers. As president she will also have a role in the CBA Re-Think – an organization-wide analysis of the association’s value proposition. Everything is on the table, she told the CBA Legal Conference’s closing plenary. “A year and a half from now, we plan to have reshaped our organization into a new and revitalized one that will be valued by and more relevant to members.”
Learn more about Michele: http://bit.ly/2014CBAPres
Chair of the Legal Futures Initiative, Fred Headon, addresses the crowd at the 2014 CLC
More highlights from the CLC: http://bit.ly/2014CLC-Highlights
Challenge your firm to go green! A desire to improve the environmental performance of law firms across Canada resulted in NEERLS developing the CBA Law Office Sustainability Challenge, which aims to engage CBA members in improving firm-wide environmental performance and promoting practice sharing across the membership.
More about the Sustainability Challenge: http://bit.ly/CBAGoesGreen
22 BarNotes / Fall 2014
FLSC Model Code The Federation of Law Societies of Canada is seeking input from the public and the legal profession on proposed amendments to its Model Code of Professional Conduct.
Learn more online: http://bit.ly/FLSCModelCode
POSTCARD FROM A LAWYER The West Bank Dwight Newman College of Law, University of Saskatchewan To remember some trips is perhaps to recall times of happiness and times of peace. The act of memory can also be an act of hope for the future. So it is with writing today, amid days when the television brings sadder news, of my trip to Israel’s West Bank this past December. On this, my third trip to Israel and one consisting of a few days tacked on after a conference in Tel Aviv, I wanted to get out a bit more to some places I had not yet seen. Israel offers a cacophony of wonderful and holy places. I would probably send a first-time visitor to the sacred sites of Galilee and the great churches of Jerusalem. But I hoped this time in Israel to go farther, to explore into the sites of the West Bank. In the days I had before getting back to Canada for Christmas, I had a great three-day opportunity for it. I went first to settle into the hotel in East Jerusalem where I would base myself, amid Jerusalem’s biggest snowfall in decades. The American Colony hotel is a grand place filled with Arab hospitality and the home base over the years of many a journalist. Its bar has been the traditional hangout of news correspondents, and there was thus a hope that an initial drink there over lunch could fortify me to record faithfully the trip. The hotel is mere steps from the city walls of old Jerusalem and the entrance at the Damascus Gate through which one can enter through the Arab part of the old city, through the hawkers’ stalls and the falafel stands, through the odours of the hookah smoke and the haunting sounds of the millennium-old Muslim call to prayer. Though I made that wonderful journey into the old city and on through to the Western Wall’s site of devout Jewish prayer, and on a longer stroll I visited my favourite bookstore/
café in West Jerusalem as well, the hotel served for me principally to locate me near the two Arab bus stations from which my daily excursions would commence. On the first day, I made the relatively short and easy journey to Bethlehem. Starting in a principally Jewish state, a bus whisked me from the Arab bus terminal in predominantly Muslim East Jerusalem to Bethlehem’s Manger Square where a Christmas tree – without snow – loomed over the masses assembled for noontime prayers outside the square’s mosque. The peaceful relation of Muslim Arabs, of Christian Arabs, and of visitors from around the world was present in the very scene. And, through my afternoon, I was able to visit both the Christian sites that drew me there – the Church of the Nativity, with the believed birthplace of Jesus marked by a star, as well as the Church of the Milk Grotto – and to pay a visit also inside the square’s mosque and there observe up-close the architecture of a different faith tradition. I wandered the market and stumbled upon the possibly even less familiar architecture of the Syrian Orthodox Church on my way back to the bus to East Jerusalem. On the second day, I made the slightly longer journey to Jericho. Despite what many will know of the famous (and musical) battle in which its walls came tumbling down, the city has remained inhabited ever since, and it is now the longest continuously inhabited city in the world. Not far from today’s city centre, Continued on Page 24...
Ramallah street signs with different faiths and ideas
West Bank shopping
Fall 2014 / BarNotes 23
POSTCARD FROM A LAWYERPOSTCARD FROM A LAWYER
Two religions side by side: Muslim prayer in square in Bethlehem
Continued from Page 23...
archaeologists continue work on the site of the old city, with layers of human habitation reaching back from the present through some ten thousand years. I headed out to that old city after a short stop to see the tree of Zaccheus, considered by local lore to be the very same tree a tax collector short in stature climbed to see Jesus speak during his ministry in Jericho - it is perhaps fitting that the oldest city in the world would be near a tree over two thousand years old, and it all puts in perspective the short period of each human lifespan. Near the old city, I then took a gondola up the Mount of Temptation, considered by local tradition the very place of cosmic clash between Jesus and Satan, and now the site of a monastery with a tremendous view across the plains and on into Jordan. I wrapped up my day in Jericho at a place of modern temptation, an Arab sweets shop, and feasted on a variety of honey-laced treats while the shopowner feted me with stories of more places I could go in the West Bank and, indeed, persuaded me of my destination for the next day. Both that persuasion and a bus transfer through Ramallah on the way back to East Jerusalem (which gave me practice of Ramallah’s bustling modernity) were to come in handy the next day when I set out the farthest afield to Nablus in the northern West Bank. Having to put out of my mind the warnings of kidnappings of Westerners there in years gone by, I approached it not knowing entirely what to expect. I found a thoroughly Arab city, the first place on my trip where my Englishlanguage skills were of little use and I had to cobble together a few words of Arabic. I found a place of desperate unemployment. I found a place with graffiti swastikas on some walls, which nobody had rushed to remove. I also found a place where shopkeepers in the market suddenly warmed up 24 BarNotes / Fall 2014
Cliffside monastery on Jericho’s ancient Mount of Temptation
to me when they saw me taking pictures of their mosques from different angles, with them wanting to show me more. And I also found a place where an ancient Samaritan village still thrives next to the Samaritans’ sacred mountaintop – Mount Gerizim – with the community preserving an ancient religion and culture similar to but distinct from Judaism. And thus I ended my trip in some of the real circumstances of a complex place. To remember what was is sometimes to hold hopes for what could be. To see neighbourliness and hatred coexisting is sometimes to encounter the imperfections of the real human condition. To immerse oneself in both the hopes and the challenges is perhaps truly to travel.
From a bus window: West Bank countryside
APPOINTMENTS Province Appoints New Chief Judge On August 6, 2014, the Government of Saskatchewan announced the appointment Judge James Plemel as Chief Judge of the Provincial Court of Saskatchewan. The appointment takes effect January 1, 2015, following the conclusion of Chief Judge Carol Snell’s term. Judge Plemel was admitted to the Saskatchewan Law Society in 1975. He worked in private practice in Saskatoon, spent a couple of years with the La Ronge office of the Saskatchewan Legal Aid Commission, then ten years as a Crown Prosecutor in Prince Albert before joining Public Prosecutions in Saskatoon in 1999. He worked as a Regional Crown Prosecutor for several years before being appointed a Provincial Court Judge in Wynyard in 2009. He is also fluently bilingual, having prosecuted and presided over several cases in French.
New Judge Appointed to the Provincial Court On June 18th, 2014, the Government of Saskatchewan announced the appointment of Bruce Bauer as a Judge at the Provincial Court in North Battleford, to replace Judge Kaiser. Judge Bauer graduated from the College of Law at the University of Saskatchewan and was called to the Bar in 1980. Since then, he has spent his career as a civil servant working with the Saskatchewan Ministry of Justice as a Senior Crown Prosecutor. He has also worked for the federal government as Senior Counsel with the Public Prosecution Service of Canada. Throughout his career, he has demonstrated strong leadership skills by supervising employees throughout the province and mentoring junior prosecutors.
REMINDER: Land Survey Regulations amendments mandatory as of Oct. 4, 2014
Just a friendly reminder that the voluntary compliance period for submitting plans online will end on October 4, 2014. At that time, Information Services Corporation will introduce changes to its Plan Submissions Online tool to help ensure client submissions are compliant with the new regulatory requirements. As of October 4, all plans must be submitted online through ISC’s Plan Submissions Online web application. Paper-based plan submissions will no longer be accepted without the prior approval of the Controller of Surveys. As well, most plans must be accompanied by an AutoCAD file and contain at least two georeferenced points. Amendments to The Land Survey Regulations, 2014 came into force on June 12, 2014. The amendments require that all plans must be: • submitted in an electronic format acceptable to the Controller of Surveys using the web-enabled submission tool;
• accompanied by an AutoCAD file (when necessary, based on plan purpose); and • contain at least two georeferenced points (when necessary). Presently, the Controller of Surveys continues to allow for voluntary compliance of these amendments, to help facilitate a smooth transition into the new submission requirements. Note that the new submission requirements will apply to all new Plan Examination Requests, and any new Resubmission Requests (in-progress plans). Questions about processes and procedures regarding submission/ resubmission of plans through ISC’s Plan Submissions Online application, including questions about which plans must contain georeferenced points and be accompanied by an AutoCAD file, should be directed to Information Services Corporation (ISC) at ask@isc.ca or 1-866-275-4721.
All policy questions related to these regulatory amendments can be directed to the Controller of Surveys at the Office of the Public Registry Administration in the Ministry of Justice & Attorney General at 306-798-1079. The amended regulations are available on the Government of Saskatchewan’s Publication Centre website. ISC introduced Plan Submissions Online in August of 2013. Submitting plans online improves efficiency and not only saves you time completing submissions, it also reduces unnecessary rework related to rejections by catching errors before you submit. Why wait? Get ahead of the enforcement of these submission regulations on October 4, 2014 and start reaping the benefits of submitting plans online today. Please visit www.isc.ca/plansubmissions for more information on how to get started.
Fall 2014 / BarNotes 25
BRANCH INITIATIVES CBA Saskatchewan begins preperations for a new public campaign
would like to have your name included in the database, or are interested in assisting in this initiative, please contact Kayla Stuckart, Communications Officer, at kayla@cbasask.org.
Did you know that less than one in three adults in Canada have a Power of Attorney?
Watch for updates in the CBA SK Watch over the coming months as we launch this new campaign next April, in conjunction with Law Day. We hope you will help champion this important initiative with us!
April marks the Branch’s first annual Power of Attorney month. The goal of the campaign is to educate Saskatchewan residents regarding the benefit of having a Power of Attorney, ensuring that their health related wishes are honoured. We are currently in the process of preparing an online portal that the public will be able to access for information about Power of Attorneys, along with a “Find a Lawyer” database. Once completed and operational, this portal will connect individuals with lawyers in their communities who can assist in creating this important document. At this point, we would like to collect names of lawyers that would like to be included in our “Find a Lawyer” portal. If you
11th Annual Saskatchewan Law Firm Showcase
Sections Sign up now! The 2014-2015 Section Registration
Wednesday, November 19, 2014 College of Law University of Saskatchewan
& Program Handbook is available online. Visit our website for Section Meeting details and to register for sections. Sections qualify as an “Accredited CPD Activity”
Our Law Firm Showcase is your opportunity to provide law students with a better knowledge and understanding of what career opportunities are available within Saskatchewan. Please note that this event is open to Saskatchewan firms and/or legal departments only. For more information on the event visit www.cbasask.org or contact: Loreley Berra, Membership Chair 306.787.8207 | loreley.berra@gov.sk.ca Brenda Hesje, Executive Director 306.244.3781 | brenda@cbasask.org 1.800.424.8288 (SK Toll Free) If you would like to register your firm, email CBA Saskatchewan’s Executive Director, Brenda Hesje, at brenda@cbasask.org. Firm registrations are being accepted until November 12, 2014.
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under The Law Society of Saskatchewan Continuing Professional Development Policy.
More information... 2014-2015 Section Registration & Program Handbook
http://bit.ly/CBASKreg CPD Website
www.cba.org/pd
Calendar of Events October 1, 2014 CBA SK President’s Dinner Regina October 2, 2014 Executive Committee Meeting Regina October 2, 2014 Council Regina October 23, 2014 Mentorship “Meet Your Match” Reception Saskatoon October 24, 2014 Recognition Dinner: Chief Judge Snell Regina November 17, 2014 NOMINATION DEADLINE: DISTINGUISHED SERVICE AWARD November 13, 2014 Executive Committee Meeting Conference Call November 27, 2014 CBA Board of Directors Conference Call December 11, 2014 Executive Committee Meeting Conference Call December 15, 2014 NOMINATION DEADLINE: TREASURER & MEMBERS OF COUNCIL January 16, 2015 Executive Committee Annual Planning Meeting Regina January 21, 2015 Mock Interviews at College of Law Saskatoon February 4, 2015 Executive Committee Meeting Saskatoon February 5, 2015 Council Saskatoon February 5-6, 2015 MID-WINTER MEETING Saskatoon February 20, 2015 CBA Board of Directors Ottawa February 21-22, 2015 CBA Mid-Winter Meeting of National Council Ottawa March 12, 2015 Executive Committee Meeting Conference Call April 9, 2015 Executive Committee Meeting Conference Call April 15, 2015 NOMINATION DEADLINE: COMMUNITY SERVICE AWARD April 16, 2015 LAW DAY
Have you changed office locations or have a new job? If so, please advise CBA Saskatchewan so we can update our records. All changes should be sent to info@cbasask.org. Written changes may be sent to: CBA Saskatchewan, 306, 105-21st Street East, Saskatoon, SK, S7K 0B3. Updated addresses are needed for our National Database and Legal Directory & Day Planner publication.
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