BarNotes spring 2018 by CBA Saskatchewan

Bar Notes

THE CANADIAN BAR ASSOCIATION â&#x20AC;¢ SASKATCHEWAN BRANCH

SPRING 2018

VOL. 32.2

SPRING 2018 1

IN THIS ISSUE FEATURE COMMENTARY

The Canadian Bar Association Saskatchewan Branch

37 PRO BONO

305, 135-21st Street East Saskatoon SK S7K 0B4 www.cbasask.org

SPOTLIGHT Representation for Inmates: Pro Bono Law Saskatchewan Launches New Panel Program

BARNOTES Editorial Board HANNAH ZIP Editor Knott den Hollander SCOTT BELL MLT Aikins LLP KATE CRISP Scharfstein Gibbings Walen & Fisher LLP TRISTAN CULHAM MLT Aikins LLP JARED EPP Robertson Stromberg LLP

CRYPTOCURRENCIES: A PRIMER FOR LAWYERS

JACKIE FRANCIS Francis & Company LEAH HOWIE Law Reform Commission of Saskatchewan

BRANCH NEWS 5

Mid-Winter Meeting: In Review

President’s Message

Law Day: In Review

COMMENTARY

LINDSAY HJORTH University of Saskatchewan

BRANCH AWARDS Distinguished Service Award

AMJAD MURABIT WMCZ Lawyers MICHAEL SCHERMAN Blake, Cassels & Graydon LLP ALIXANDRA STOICHEFF MLT Aikins LLP

Gerald Tegart, QC was awarded the 2018 Distinguished Service Award on February 2, 2018, at the Mid-Winter Meeting in Regina.

JAMES STREETON Wardell Gillis MONTEEN DENT Executive Director CBA Saskatchewan

Writing Affidavits in a Post-Wongstedt World

Wasting Our Breath?

CASL: Sending Electronic Messages with Consent

What Lawyers Should Know About the Demise of the Crown

ITEMS OF INTEREST Cirque de CLASSIC

Time for a New Tort? Malicious Prosecution in Civil Proceedings

Brenda Hesje Thank you

Save the Date: Branch Annual Meeting

FROM THE BENCH

Court of Appeal Centenary

CBA Saskatchewan represents more than 1,100 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice.

Contact Monteen Dent, monteen@cbasask.org for information on advertising.

Once Again ‒ At the Crossroads on Access to Justice and Reconciliation

Advertiser Index

Calendar of Events

Legal Directory

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LAYOUT & DESIGN Katrina Forgrave Graphic Designer COVER DESIGN CBA National BarNotes is a publication of CBA Saskatchewan which is published 3 times a year. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel.

EDITOR’S NOTES

EDITOR’S NOTES HANNAH ZIP || KNOTT DEN HOLLANDER

he sun is finally out and another issue of BarNotes, your favorite local publication, is once again ready for your viewing pleasure. There is a wide range of articles covering vast topic areas, including #MeToo, three articles on cryptocurrency (What is it? What are the legal issues in the family law context? Tax implications?), malicious prosecution in civil proceedings, and the Demise of the Crown. I must confess that as a fan of the Netflix series “The Crown”, I was a tad disappointed to learn the article is not about the royal family drama, but rather about the impact that the end of the reign (the “Demise”) of Queen Elizabeth II (the “Crown”) will have on the practice of law in Canada. Nevertheless, it is an interesting read despite the misleading title. Beth Bilson’s article “Wasting Our Breath?” on the #MeToo movement and how little progress has been

made with respect LETTERS TO THE EDITOR to the elimination of hrz.kddlaw@sasktel.net sexual harassment since the 1970s, spoke to me on a personal level. I saw myself in Beth’s description of the female law students she taught and the female lawyers working today. Gender discrimination continues to impact women in the legal profession. This article is a reminder that it is still necessary to challenge the status quo to end sexual harassment. Let’s not waste our breath. As always, the BarNotes editorial board works hard to ensure that we produce an enjoyable and relevant magazine for CBA members to enjoy. If you would like to be involved or submit an article, please do not hesitate to contact any one of us.

SPRING 2018 3

2018 MID-WINTER MEETING SPONSORS

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BRANCH NEWS

MID-WINTER MEETING: IN REVIEW

JANA LINNER, CHAIR || MLT AIKINS LLP

he Mid-Winter Meeting was held in Regina on February 1 and 2, 2018. The conference theme, was “Practice. Diversity.” with sessions on substantive legal knowledge, the legal profession itself and topics pertaining to greater societal issues and the impact on the law and lawyers. We heard about the diversity of not only who we are and who we represent but also how we practice.

Katherine Melnychuk and Nicholas Cann did an excellent job planning this year’s Thursday Night Social Event for the Mid-Winter Meeting. Attendees were able to catch up with colleagues while enjoying custom cocktails, delicious appetizers and a live jazz band. Almost all in attendance supported the 50/50 draw with the proceeds supporting the Regina Open Door Society.

The meeting opened Thursday morning with an update from Justice Minister Don Morgan, QC. During the W.R. (Bob) Pelton Memorial Lecture, Mr. Justice Brown of the Supreme Court of Canada presented a compelling case as to why Emmett Hall should be deemed “The Greatest Judge”. On Friday morning, the day started with a plenary session on Reconciliation and Healing. His Grace Archbishop Don Bolen, joined by Elder Robert Bellegarde and Indigenous Health Coordinator Tracy McKenzie, led an engaging presentation about the Church and the Truth and Reconciliation process moving forward. The Closing Plenary was an informative (and, surprisingly funny!) conversation with the Courts. Chief Justice Richards, Chief Judge Plemel and Justice Barrington-Foote candidly discussed current issues and challenges facing the courts and the justice system.

The Mid-Winter Meeting would not be possible without the generous support of this year’s exhibitors and sponsors or the hard work of the CBA Saskatchewan Branch staff, Brenda Hesje, Monteen Dent and Duncan Shury. I also want to extend my appreciation to our exceptional planning committee members for their hard work and dedication: AzureDee Ashton, Nicholas Cann, Steven Dribnenki, Kristél Kriel, Katherine Melnychuk, Evatt Merchant, QC, Neil Robertson QC, and Greg Sykes. Be sure to mark your calendars and save the date for next year’s Mid-Winter Meeting in Saskatoon on January 31 and February 1, 2019.

The CPD sessions were varied, allowing attendees to hear presentations on criminal law, family law, contract law, labour law, privacy law, advocacy and more. There were four concurrent educational streams. The goal of the planning committee was to ensure that each time slot contained four disparate topics so that attendees could find something of interest at each of the CPD sessions.

SPRING 2018 5

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The Sandra Schmirler Foundation has given millions of dollars to NICUs across Canada to purchase state-of-the-art life-saving equipment for premature and critically ill newborns, including grants of over $500,000 in Saskatchewan.

Remember the Sandra Schmirler Foundation in your will and help save the lives of newborn babies and create a legacy of hope and health for the future.

Our funding ensures NICUs are equipped with more of the latest technology. This allows Moms and Dads to stay close to home where family and friends can provide much needed support at this very emotional time.

If you would like more information about creating a legacy gift or have any questions, please contact:

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Robin Wilson, Leadership Director Sandra Schmirler Foundation 604.230.5871 (cell) wilson@sandraschmirler.org

BRANCH NEWS

PRESIDENT’S MESSAGE EVATT MERCHANT || MERCHANT LAW GROUP LLP

Saskatchewan Branch Activities

Since the last issue of BarNotes in January, CBA Saskatchewan has been busy. We had our MidWinter Meeting in Regina, numerous Law Day events, consultations on legislation and coordination of north and south section meetings. I was pleased to bring greetings on behalf of our CBA Branch at the swearing-in ceremonies of three new Queen’s Bench Judges – Justice Bob Leurer, Justice Heather MacMillan-Brown, and Justice Meghan McCreary, two of whom are former presidents of CBA Saskatchewan. I also took part in the January swearing-in ceremony of Justice Paul Favel, who was appointed to the Federal Court of Canada. Additionally in May, CBA Saskatchewan is taking part in the Provincial Court swearing-in ceremonies of Judge Mary McAuley and Judge Natasha Crooks. The distinguished careers of these new jurists was made clear through the many testimonials offered by colleagues and friends. The New “Double Majority” Rule and Other Changes for the Canadian Bar Association

As part of implementing changes known as CBA 2.0 (flowing from

the ReThink process), there is now a requirement that any fundamental amendments to the national structure or financing of the CBA requires motions to be passed by both the CBA’s Board of Directors AND by at least half of the Provincial Branches. This new amending formula is described by Article 70(3) of (No. 1), which states: “A Regulation, amendment or rescission dealing with membership fees, Branch Sections, Branch finances and budgeting or Branches must be approved by the [CBA National] Board of Directors of the Association and by the [Provincial] Executives of at least one half of the Branches that have in aggregate at least one half of the voting members of the Association.” This new governance model means that major decisions regarding the shape of our national organization requires greater consultation and endorsement at the provincial Branch level. Staff Changes ‒ CBA Saskatchewan Office

Our new Executive Director, Monteen Dent (monteen@ cbasask.org) has been working hard to continue the important work of serving our members. She comes to the top job at a time of

THE CBA SASKATCHEWAN BOARD OF DIRECTORS ARE HERE TO SERVE YOU.

Please contact me with ideas, questions or concerns about CBA activities! emerchant@merchantlaw.com (306) 227-2222

intense change within the CBA’s national structure. We have also welcomed a new staff member to the office, Duncan Shury whose primary responsibilities include Sections and administration. Our staff’s primary goal is to serve our members and they are always happy to hear from you at 306244-3781 or info@cbasask.org. Branch Annual Meeting – June 14 in Saskatoon

Our Annual Meeting will take place at the Saskatoon Club on June 14, 2018 at 4 pm. The meeting will include presentation of the Branch’s financials, Directors’ reports, presentation of the Community Service Award, and a Q&A with the Chief Justices of our three Courts. We hope CBA members will join us for the Annual Meeting & Reception that follows.

SPRING 2018 7

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BRANCH NEWS

LAW DAY: IN REVIEW CHRIS WEITZEL || SASKATCHEWAN GOVERNMENT INSURANCE

n celebration of the signing of Canada’s Charter of Rights and Freedoms, CBA Saskatchewan had several events for the public and students to learn about the law, the legal profession and the legal institutions that form the cornerstones of Canadian democracy. On April 14th, high school teams from Melville, Regina, Prince Albert and Yorkton participated in the Mock Trial Competition at the Court of Queen’s Bench in Saskatoon. With the assistance of Justice R. S. Smith, Court of Queen’s Bench, Judge B. Henning, Judge P. Reis and Judge J. Rybhuck from the Regina Provincial Court, the Yorkton Regional High School Team 2 took home the McKercher Cup after a day of competition. Students, teachers and legal advisors spend countless hours preparing for the Mock Trial and learn valuable information about court room procedures, rules of evidence and various legal concepts. Our Multimedia contest provided an opportunity for Grade 5-8 students to learn and demonstrate an

understanding of the rights of Canadians through visual arts and written works. Over 20 submissions were received with 2 student winners. On April 18th and 19th volunteer CBA member lawyers in conjunction with Pro Bono Law Saskatchewan provided a free phone clinic to over 45 members of the public on general legal issues. Members of the public expressed gratitude for the opportunity and volunteers spoke of the positiveness of the interactions. Also during the months of April and May, volunteer CBA members are visiting classrooms across Saskatchewan talking about the profession, the law and answering student questions. Every year this program continues to grow and allows students to learn about our profession and the justice system. To the Law Day Planning Committee and all the volunteers, thank you for your time.

SPRING 2018 9

COMMENTARY

CLASSIC’S INAUGURAL “CIRQUE DE CLASSIC” A SUCCESS CHANTELLE JOHNSON || CLASSIC

or the past decade, Community Legal Assistance Services for Saskatoon Inner City Inc. (CLASSIC) and Pro Bono Law Saskatchewan (PBLS) have alternated their major fundraisers between Saskatoon and Regina from year to year. This year was CLASSIC’s turn and we decided to change our approach. CLASSIC hosted our inaugural “Cirque de CLASSIC presented by Nutrien”, replacing “The Gown to Gown Lawyers’ Charity Gala”. The event was held on January 19, 2018 and was not exclusive to the legal community. Instead, CLASSIC invited all the communities we work with and in – the legal community, community- based organizations, clients, and our friends and family. Cirque de CLASSIC was a smashing success, raising more than $41,000. Cirque de CLASSIC was a circus-themed event held at the Sheraton Cavalier. There were carnival booths with carnival prizes, food and popcorn stations. The feedback has been overwhelmingly positive, with key points being that it was a mingling evening rather than a sit-down affair and that people could bring their whole family (kids were invited!). One attendee indicated: “this was amazing – the kids didn’t have to be left at home, and in fact, they added to the excitement of the evening. We go to many fundraisers and are so pleased our whole family was invited!” The carnival booths and ambience included: DJ Darryl Kozman, Kenni the Clown, Kreative Mum (face painting), Randy the Caricaturist, tea-leaf readings by Maria Campbell, fortune telling by Lorne Fagnan, card tricks from The Moderately Amazing Eli, presentations by Acro Yogis, ring-toss, a golf game, fishing pond, artisanal lollipops, a photo booth, a slush station, and more! One of the highlights of the evening was when Frederick Nicolas, a former Cirque

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de Soleil acrobat, performed. He demonstrated sheer strength and agility as he extended horizontally and vertically from a 6-foot, free-standing pole. Another highlight was local artist Kevin Peeace’s live painting throughout the evening. The final product was then auctioned off to enthusiastic bidders. While each guest was a VIP to CLASSIC, there are a few we would like to mention. We were pleased to have The Honourable Senator Lillian Dyck, The Honourable Senator Mary Jane McCallum, The Honourable David Forbes, MLA, representatives from the University of Saskatchewan, and Judges from the Provincial Court. Special thanks to the Dean of the College of Law, Martin Phillipson, for being our MC for the evening. Special greetings were brought by: • Nutrien – greetings on behalf of the title sponsor for the evening were brought by Lisa Mooney, Senior Aboriginal Relations Specialist; • Saskatoon City Council - Councillor Hilary Gough (CLASSIC’s councillor) brought greetings on behalf of the City of Saskatoon while His Worship, Mayor Charlie Clark, in keeping with the theme of the evening, juggled! • University of Saskatchewan – Honourary Ambassador of the University of Saskatchewan, Grit McCreath, brought greetings on behalf of the University. Each year, we also recognize a lawyer from the community for providing pro bono service. This year, Michelle Ouellette, Q.C. presented the 2017 Victor Dietz, Q.C. Pro Bono Service Award to Beau Atkins, of Edge Family Law. Congratulations to Beau on his hard work and dedication to CLASSIC and other local organizations.

COMMENTARY

The positive feedback we’ve received about Cirque de CLASSIC has convinced us to continue with Cirque de CLASSIC every second year. The beautifully decorated circus-inspired event was a hit for both

THANK YOU BRENDA HESJE

would like to say a huge, heartfelt thank you to the members and volunteers of CBA Saskatchewan for the opportunity and privilege of serving as your Executive Director for the last 22 and a half years. Thank you for having confidence in me and giving me your support. I feel very fortunate to have worked with you and for you. I would also like to take this opportunity to say thank you for the wonderful retirement events, the lovely gifts, the service award, and for the many good wishes sent my way. I will take many fond memories with me into my retirement. I know I will miss my job, but I also know that I will miss “my” members and volunteers

the young and young at heart. The generosity of the guests and our sponsors made the night a splendid success.

even more! I have often said to my CBA colleagues over the years, that I was so lucky to work for the members and volunteers of the Saskatchewan Branch because they were the best – and they are! While I am a sad to leave the CBA, I am also looking forward to spending more time on gardening, photography, sailing and maybe a little golf – and of course with my family! I would also like to take this opportunity to wish Monteen all the best as she steps into the role of your Executive Director. I know she will serve you well and take you, and CBA Saskatchewan, forward proudly into the new CBA. You are in good hands! I know you will give her the same support that I’ve experienced over the years.

I found a retirement quote by Susan Miller that I plan to take to heart, Thanks again, for everything.

SPRING 2018 11

COMMENTARY

WRITING AFFIDAVITS IN A POST-WONGSTEDT WORLD

NEIL MCPHEE || WMCZ LAWYERS

s family lawyers, we already know our discipline is managing emotions. Unlike every other area of law, our field cannot exist in the absence of love. Our employ is built by shortselling romance, banking upon failed flirtations, and tempering vengeance with the whetstone of rationality. It is much easier to view the world in black and white, rather than accept the many grey shades of human nature. Litigants are often protagonists in their own stories, waging a perceived battle between good and evil. For that reason, it is difficult for people to accept responsibility in bringing about their own tragic situations. Our clients frequently digest these new circumstances by hurling blame onto one another. In this paradigm, our client’s perspective is primarily portrayed to the court through written affidavit evidence. This is a good thing. Counsel are able to focus their client’s evidence towards the narrow issues in dispute, exclude irrelevant and unhelpful remarks, and, generally, sheathe kooky comments, opinions, and accusations. Not only may counsel curb their client’s vindictive desires from unhelpfully showing through in affidavit instruct counsel to materials, the do so. Hearsay evidence is, generally, inadmissible. Opinion or speculation is inadmissible. Argument is inadmissible. Irrelevant or unnecessary material is inadmissible. Nonetheless, as we know, the above still finds their way into affidavits and before the furrowed brow of a chamber’s judge. There has been little clear direction from the court on objecting to such evidence. On one end of the

12 BARNOTES

spectrum, counsel must object to inappropriate material. It is not the role of the judge to be the gatekeeper of evidence. That responsibility falls to the lawyers involved. On the other end of the spectrum, by filing an objection notice you risk judicial ire. Consider a situation where your client is called a “cackling witch”. Although this comment is clearly prohibited, it would hardly play any role in judicial decisions. Forcing the chambers judge to strike a “cackling witch” comment, on the basis of principle, has, depending on the judge, become a gamble. My colleagues advise me of an unreported chambers decision wherein a successful application to strike was made. The gossip is that costs were awarded against the successful applicant because the material that was struck had no bearing on the issue in question. Whether true or not, it is believable, and chills the willingness of lawyers to guard the rules of court. Even if an application is brought, regardless of the effort put into it, the court has been inconsistent on whether it will rule. If there is a ruling, the details of those rulings may be sparse. A line such as, “I have considered the objections and ignored those portions of the impugned affidavit that have violated the rules” is not uncommon. Further, the time spent objecting to affidavit evidence may sometimes be far in excess of what one might expect from a costs award. Frequently, costs are not specifically awarded. In this wild west of affidavit contents, comforting your client by skirting the rules and slinging an

COMMENTARY appropriate amount of mud appears common place. One wonders: if there is no enforcement mechanism being upheld, can the rule even be said to exist? While I have been left busy imagining the sound of one-hand clapping, it looks like the court of appeal has grown tired with the sometimes wishy-washy approach taken towards these objections. Enter Late last year, the Court of Appeal released the , 2017 SKCA 100. In decision it, the court vehemently reproached the indecisive and inconsistent approach towards affidavit objections. The court found the judicial decision lacking because: [38] It does not address the issues raised by those notices or permit functional appellate review. Bluntly, the answer given is so ambiguous and unhelpful to the parties as to amount to a non-decision. Where objections are taken to affidavit evidence, the judge who hears them should briefly articulate which portions of a contested affidavit are not and in conformance with what has been struck from the record. There are many ways this could be done effectively, but the key is to plainly identify what is or is not in evidence, giving a very short reason for striking any material that has been struck from the record. Indeed, a judge may simply strike out offending material by hand, noting the reason therefor, on the affidavit itself. [Emphasis added] It appears this direction is being heeded. More time is being spent specifically ruling on affidavit objections. In chambers, judges may now be using their very finite and valuable time enforcing proper adherence to evidentiary rules â&#x20AC;&#x201D; something counsel should very likely be doing on their own.

that unnecessarily sets forth matters of hearsay or argumentative matter, or copies of or extracts from documents, (emphasis added). Rules 15-20(5) and (6) permit the court to award double costs where an affidavit or parts thereof have been struck. Moreover, Rule 1525(2) establishes a presumption of costs to the successful party in a family law proceeding or any step in a family law proceeding. On this basis, given the circumstances described earlier, I find no reason to deny Mr. Wongstedt an award of costs on his notices of objection. I would award him $500 in costs in that regard. [Bolded emphasis added; italicized emphasis in original] Conclusion , I suspect members of the bar In light of and the judiciary will have less patience for noncompliant affidavit materials. By addressing specific affidavit objections, chambers days will become longer. Counsel waiting in the galley will spend more time twiddling thumbs and incurring costs due to the poor drafting of fellow colleagues. Further, it is unlikely to result in a shoot-first and aim-later approach to filing objection notices. Inappropriate affidavit objections also force judges to specifically consider alleged violations. With similar time investments, the enmity gained from spurious objection notices may be comparable to that gained through flagrant disobedience of As a result, we may see cost awards start to rise on both sides of the table. In the end, there may be a dramatic shift in the drafting of affidavit materials. Or, perhaps nothing will change at all. Only time will tell.

also reinforces the presumption of costs against affidavit offenders: [44] This is particularly striking if one considers that Rule 13-30 states that â&#x20AC;&#x153;the costs of every affidavit

SPRING 2018 13

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COMMENTARY

WASTING OUR BREATH? BETH BILSON, QC || OFFICE OF THE UNIVERSITY SECRETARY

e have all been treated in recent months to an explosion of allegations of sexual misconduct by prominent figures in the entertainment industry, in broadcasting, in academia, in political parties and elsewhere. We have consumed #MeToo and TimesUp, Golden Globe runway protests and the latest charges and defences with our toast and orange juice. Women seem to have been emboldened by these events to make revelations about their own experiences, some of them dating back decades. More than one commentator has observed that these developments create an environment in which real change can happen, or that there is “something different” about the current atmosphere. Really? This is hardly a new issue. I was in law school in the 1970s, when the concept of sexual harassment was being articulated – as a form of gender discrimination that included not just unwanted physical attention, but also speech, displays, gestures, policies and actions based on invidious sexual distinctions. In that dawn of the evolution of human rights law, there was a general conviction that we would merely have to articulate and identify the problem, and men of good will would modify their behavior to eliminate sexual harassment. As women entering the legal profession, we would say, “We want to do good and interesting work, be respected for our professional skills, and go home to our families. We don’t want to pay a salary penalty simply for being women. We want our workspace to be a professional environment, not a locker room. We would like to enjoy social occasions with our colleagues without an assumption that our presence means we are up for grabs” – and our

colleagues would be guided by these messages. In the intervening decades, my daughter has grown to adulthood, I have taught hundreds of female law students, and talked to many female lawyers. If I had hoped that they would be leading harassmentfree lives, I have been disappointed to discover that this is not the case. There are still too many cases where their excitement about joining the legal profession has been soured by having to navigate in an environment where their appearance is more of an issue than their competence, where their inability to see the funny side of sexist putdowns or innuendo is attributed to a difficult personality, or where their comfort in the workplace is compromised by genderbased denigration or intimidation. Women have many allies in the legal profession, and associations with wonderful male colleagues who are mentors and friends. It is discouraging, however, that as the notion of sexual harassment reaches its 50s, there are still so many women in the legal profession who experience harassment, and whose professional lives are impoverished by it. I am sorry that it is still necessary to challenge the norms and habits of lawyers by characterizing their behavior as sexual harassment. But if we still have to talk about this, well then, “MeToo”.

SUMMER 2017 15

FEATURE COMMENTARY

CRYPTOCURRENCIES: A PRIMER FOR LAWYERS K. ANDY CHIANG || STAY-AT-HOME-DAD Introduction As an increasing number of people utilize Bitcoin, Ethereum, and other cryptocurrencies, it becomes more likely that lawyers will encounter such property in their day-to-day practice. This article serves as a high-level cryptocurrency primer for lawyers and is intended to be read in tandem with the other cryptocurrency articles in this issue of BarNotes. The Basics Although each cryptocurrency is unique, many cryptocurrencies share similar features: 1. Control is decentralized. Unlike traditional currencies (e.g. CAD, USD) – each of which is ultimately regulated by a government authority – control of a cryptocurrency is effectively shared amongst multiple parties. Changes to a cryptocurrency’s blockchain (explained below) require consensus. With some exceptions, resolving problems that arise when dealing with a cryptocurrency (e.g. a transaction is taking too long to process; wrong amounts were transferred due to human error) requires do-it-yourself solutions. 2. New units of cryptocurrency are created by “mining”. Mining involves using computers to solve difficult mathematical problems that – once solved – creates new units and deposits them in an “account”. Anyone can set up a mining operation. One does not need to be a miner in order to buy or sell cryptocurrency. 3. Each account is assigned a “public address” and a “private address”. Each address is a series

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of letters and/or numbers. Transferring units into an account requires knowledge of that account’s public address. Transferring units out of an account requires knowledge of that account’s private address. A person can have multiple accounts. 4. All units, accounts, and transfers are recorded in a general ledger known as the “blockchain”. New units and transfers are recorded in the blockchain on a regular basis. Multiple copies of the blockchain are saved on computer systems owned by different entities, and the copies are regularly compared to one another to ensure accuracy and legitimacy. Anyone can review the blockchain. 5. The exchange rate of each unit can be highly volatile. For instance, one bitcoin was worth roughly $18,000 USD in December 2017 but just over $6,000 USD in February 2018. As the rate is influenced by how much buyers are willing to pay and how much sellers are willing to sell, determining the rate can become more complicated during periods of especially high volatility. 6. Be aware of… a) …transfer delays. Transfers are rarely instantaneous because a transfer must be processed by a miner and recorded in the blockchain before the transfer is considered legitimate. Depending on factors such as the number of miners available and whether a processing fee is paid to the miner who processes the transfer, a transfer may be delayed by several hours or even several days. The exchange rate might change during this time. Keep delays in

FEATURE COMMENTARY

mind when making or closing a deal that involves a transfer of cryptocurrency. b) …the importance of private addresses. Addresses can be saved in any format (e.g. text file on a flash drive; a sticky-note on a monitor; human memory), but special care should be taken to safeguard private addresses for two major reasons. First, losing a private address usually means the units in that account can never be transferred out. Second, an individual who discovers your private address can steal the units in that account by transferring them to his or her own account. You can track the transfer by reviewing the blockchain, but identifying who made the transfer and compelling them to return the units to you would be challenging. Make sure you are aware of these risks should a client ask for estate planning advice regarding their cryptocurrency holdings. c) …the term “wallet”. One might assume that as cryptocurrency wallets hold units similar to how leather wallets hold cash. This assumption is incorrect, as a cryptocurrency wallet mainly saves addresses. Should your client’s private address be discovered by another individual, having a wallet that contains the same private address does not prevent that individual from stealing from your client’s account. d) …exchanges. Due to the complexities involved in interacting with blockchains and finding buyers/ sellers, many users rely on “exchanges”. Similar to brokerage firms, cryptocurrency exchanges allow registered users to easily buy/sell units and trade units of one cryptocurrency for units of another cryptocurrency. Generally, registration involves providing the exchange with copies of governmentissued identification. Although exchanges are more convenient because they offer user-friendly websites and/or smartphone apps, using exchanges also carries significant risks. One such risk is fraud, whether by third parties (see e.g. , 2014 ONSC 5811, 122 OR (3d) 465) or by the exchange’s owners (i.e. they abscond with registered users’ units and/or money). If your client uses an exchange, he or

she does not truly hold the cryptocurrency units. At best, he or she has an enforceable contract with the exchange. e) …forks. “Forks” refers to when a cryptocurrency splits into two or more cryptocurrencies because parties disagree on what changes should be made to a cryptocurrency’s blockchain and/or functionality. In most forks the original cryptocurrency remains unchanged but a new version is created. Forks are rare but when they occur they can cause all holders of the original cryptocurrency to suddenly gain new units of the new cryptocurrency. Bitcoin forks has resulted in several cryptocurrencies that all use the Bitcoin name (e.g. Bitcoin Core; Bitcoin Cash). When discussing cryptocurrencies with clients, make sure you are all talking about the same cryptocurrency. Further, should a client hold units of a cryptocurrency before it underwent a fork, that client may now hold units in another cryptocurrency as well. Conclusion Again, every cryptocurrency is unique. You should conduct further research before giving advice regarding a client’s specific cryptocurrency holdings. Be sure to read Anna Singer’s article about cryptocurrency in the context of family property division and Joseph Gill’s article about cryptocurrency in the context of tax law, in this issue of BarNotes.

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FEATURE COMMENTARY

CRYPTOCURRENCIES: A SASKATCHEWAN FAMILY LAW PERSPECTIVE ANNA C. SINGER | SCHARFSTEIN GIBBINGS WALEN FISHER LLP

n Saskatchewan, the definition of “family property” includes any real or personal property, regardless of its source, kind or nature that, at the time an application is made, is owned or in which an interest is held, by one or both spouses1. When dividing family property between spouses in accordance with the first step is to identify the property, then to determine that property’s value at the relevant date2. Spouses have a duty to provide disclosure of all of their assets and debts, and that disclosure process is carefully prescribed in . There is extensive case law in this province dealing with the division of real property, bank accounts, investments, and securities but, as of February 2018, there have been no reported cases regarding cryptocurrencies in family law, in Saskatchewan or elsewhere in Canada. Cryptocurrencies, such as Bitcoin, Litecoin, Ethereum, and Monero, are a type of digital, virtual, currency, although they are not akin to money in the bank. Cryptocurrencies are held in “blockchains,” which are public transaction databases. They use decentralized control, unlike centralized money and central banking systems. They are pseudonymous, tied to specific addresses or “keys,” which means that while all transactions in the blockchain are public and measurable, they can be difficult to tie to named individuals. There have been concerns that cryptocurrencies can be used to launder money; for the same reasons, they create new challenges in the family property context. Disclosure Issues: As family property, a spouse’s cryptocurrency

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holdings ought to be disclosed on his or her sworn property statement, and documentation establishing their value ought to be provided. If this is not done voluntarily, though, many of the normal recourses may not be available. For example, a blockchain is not searchable by name or address of unit holder. There are no paper statements or share certificates to review. Normally, we would request that a spouse sign an authorization for their bank or investment company to release the relevant information, but if the cryptocurrencies are not traded using an online exchange, there is no third party to field such a request. Further, it may be difficult to pinpoint an institution that can be compelled by Court Order to provide the necessary material. A digital forensics expert may have to be retained. Unfortunately for the non-owning spouse who cannot afford such an expert, discovery of cryptocurrency holdings may be entirely dependent on the cooperation of the owning spouse. Valuation Issues: Assuming the holdings can be identified, the value of those holdings must then be determined. As their value fluctuates due to market forces alone, cryptocurrencies would likely fall among the types of family property that are valued as at the date of adjudication, rather than the date of application. Expert evidence may be required. However, cryptocurrencies have an extremely volatile exchange rate. Huge fluctuations in value can be observed on a daily basis, if not hourly. The Continued on Page 20

FEATURE COMMENTARY

CRYPTOCURRENCY V TAXATION: AN UNSTOPPABLE FORCE MEETS AN IMMOVABLE OBJECT JOSEPH A. GILL | MCKERCHER LLP

he purpose of this article is to cover several tax issues associated with cryptocurrency (“crypto”). Taxing authorities in both Canada and the U.S. are still wrestling with the proper approach to tax crypto. Unsurprisingly, what has emerged is a “tax first, ask questions later” approach1. The current Canadian tax approach is focused on the following key propositions:

Crypto is Property Canada Revenue Agency (“CRA”) treats crypto as a barter transaction involving non-money intangible property. CRA’s central position is that crypto is not “currency” or “money”; this interpretation is supported by the Bank of Canada, which also believes crypto is not “money”2. This leads to a number of tax outcomes: • Selling crypto can give rise to either fully taxable income from business or property or half-taxable capital gains. Whether the sale falls within either category is a factual inquiry, focusing on whether the transaction is on account of income or on account of capital3. Those who regularly trade in crypto seem likely to be treated as fully-taxable business or property income. Notably, this would also apply in an exchange of one type of crypto for another type of crypto. • There may be a mismatch between the vendor’s proceeds of sale for tax purposes and the purchaser’s cost basis in the property acquired. For example, if Mr. A sells a $900 chair to Mr. B for 1 crypto (at the time of

sale worth $900) but the value of the crypto drops to $450 at the time that title to the chair passes, then Mr. A has business income of $900 but Mr. B only has a tax cost in the chair of $450. • Persons accepting crypto as payment for goods and services must collect and remit Goods and Services Tax (“GST”). This may also give rise to issues in determining the valuation of the consideration for the supply of goods or services, as required by the (Canada) (the “ETA”). • Where the term “currency” or “money” is used in tax legislation, there is an open question as to whether crypto satisfies these definitions. Miners might be Businesses Crypto miners may be taxed depending upon whether their mining activities constitute a personal activity/ hobby or a business activity. This determination will turn largely on whether the miners have behaved in a “business-like manner” and will look to the existing analytical framework on whether a business exists4. There also appears to be an open question as to whether crypto mining is a “taxable supply” for purposes of the ETA, thereby requiring the miners to register under the ETA. Paying in Crypto = GST Supplier? There is a live issue as to whether a person paying for Continued on Page 20

SPRING 2018 19

FEATURE COMMENTARY Continued from Page 18

parties could agree to freeze the value on a set date, although that may result in a windfall for one spouse or the other. Another option may be to agree to divide all of the cryptocurrencies equally at source; however, extreme care will have to be taken to protect your client’s private address. As the cryptocurrencies are not necessarily situated in this province, the Court of Queen’s Bench for Saskatchewan may not have the jurisdiction to make such an order. Furthermore, there may not be a third party capable of being bound by the court’s order. Mining Equipment: It is possible that one spouse not only owns cryptocurrency units on the relevant date, but is also engaged in mining operations. In other words, the spouse is using computer equipment to create new cryptocurrency units or, bluntly, to print money. That computer equipment (less associated expenses, namely electricity costs) is therefore an income earning asset, subject to division. The new units created after the application date may also be shareable between the parties, akin to rent received on farmland.

Continued from Page 19

goods in crypto should be collecting GST from the seller of those goods and then remitting that GST to the CRA. This issue stems from: (i) CRA’s view that crypto is a barter transaction; and (ii) barter transactions being subject to GST. There may, however, be arguments against this, e.g. crypto being treated as a “financial instrument” or “money” under those definitions in the ETA, thereby making them GST-exempt5.

Furthermore, consideration may have to be given to whether the mining spouse is collecting processing fees in the form of units, and the treatment of those additional units within the property division matrix. Tips for Practitioners: Your client may be aware that their spouse owns cryptocurrencies, or is mining cryptocurrencies. That information can perhaps be gleaned from banking records showing purchases and transfers. If not, though, there is no way to know what amount of cryptocurrencies – if any – is “in the pot.” As this technology develops, and the area is increasingly regulated, things may change. For now, though, the only clear option is to include a listing of all cryptocurrency holdings and substantiating documentation in your standard disclosure request, and hope that everyone is taking their disclosure obligations seriously. The Family Property Act, SS 1997, c F-6.3, s 2(1). Benson v Benson, 120 Sask R 17 (CA) at para 19. 3 For more information about cryptocurrencies, see Cryptocurrencies: A Primer for Lawyers by K. Andy Chiang in this edition of BarNotes. 1 2

See CRA document no. 2013-0514701I7 (December 23, 2013); CRA document no. 2014-0525191E5 (March 28, 2014); and CRA document no. 2014-0561061E5 (April 16, 2015). For non-tax practitioners, these are typically supplied by tax publishers and not publically available. 1

2 Bank of Canada, “Decentralized E-Money (Bitcoin), “Bank of Canada Backgrounders, April 2014, at 1-2. 3 For an example of judicial application of “income vs capital”, see Friesen v Canada, [1995] 3 SCR 103.

See for example Stewart v Canada, 2002 SCC 46.

See ss. 123(1) of the ETA.

Olivier Fournier and John J. Lennard, “Rebooting Money: The Canadian Tax Treatment of Bitcoin and Other Cryptocurrencies,” Report of the Sixty-Sixth Tax Conference, 2014 Conference Report (Toronto: Canadian Tax Foundation, 2015), 11:1-27; Dale Pinto “Options to Address the Direct Tax Challenges Raised by the Digital Economy – A Critical Analysis” (2016) 63:2 Canadian Tax Journal 291-331; Sunita Doobey and Lindsay Chamings, “Tax Implications of Cryptocurrency” (2017) 25:7 Canadian Tax Highlights 6-7; and Kathryn Walker, “Making or Accepting Payment in Crypto: A GST/HST Risk?” (2018) 8:1 Canadian Tax Focus 3. 6

Concluding Remarks As the reader has hopefully seen, the taxation system around crypto is still in its infancy. For now, those advising crypto clients will need to square the seemingly “unstoppable force” that is crypto with the “immovable object” that is tax legislation. Finally, for those looking for additional readings, there are a number of great resources6.

20 BARNOTES

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SPRING 2018 21

COMMENTARY

CASL: SENDING ELECTRONIC MESSAGES WITH CONSENT MIKE OCHS || WMCZ LAWYERS

ay you’ve got a client that’s starting a new business. It’s a great idea and they want to get the word out by sending emails to as many people as possible. Sounds like a good plan, right? Maybe… unless those messages run afoul of (CASL). The legislation came into force in 2014 and is enforced by the CRTC, which receives complaints from spam recipients online. Offenders may be hit with significant financial penalties. Among other things, CASL establishes rules governing the sending of Commercial Electronic Messages (“CEMs”). Essentially, any electronic message that offers to sell or purchase a product or business, or advertises a product or business, regardless of whether profit is the sender’s endgame, will be a CEM. CASL requires that all CEMs be sent with the recipients’ express or implied consent. Express consent can be obtained orally or in writing, but it cannot be obtained via subscription emails and, barring a referral from a party related to a potential recipient, CASL prohibits businesses from using CEMs to request express consent to send future CEMs. Implied consent is more complicated. There are three ways to establish implied consent to send CEMs. Firstly, implied consent exists where the sender has an “existing business relationship” with a potential recipient. Existing business relationships occur where: (a) the recipient made a purchase or lease of goods, services, land or interest in land

22 BARNOTES

within the two-year period immediately before the day on which the message was sent; (b) the recipient accepted a business, investment or gaming opportunity offered by you within two years immediately before the day on which the message was sent; (c) the recipient made an inquiry or application on any of the items above within the six month period immediately before the message was sent; or (d) the recipient entered into a written contract which is still in existence or expired within two years immediately before the day on which the message was sent. Basically, senders can safely send CEMs to people with whom they have recently done business. Organizations should, however, be mindful of the above timeframes and keep track of when implied consents derived from existing business relationships may expire. Implied consent to send CEMs also exists where: (a) the person to whom the message is sent has disclosed to the person who sends the message, the person who causes it to be sent or the person who permits it to be sent to the electronic address to which the message is sent without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address, and the message

COMMENTARY

is relevant to the person’s business, role, functions or duties in a business or official capacity; or (b) the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, without a statement that the person does not wish to receive unsolicited CEMs at that electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity. The “conspicuously published” rule has already caused some trouble for a few Canadian businesses and has been interpreted by the CRTC on several occasions. Though businesses may be permitted to send CEMs to parties that have disclosed their email addresses online (via social media or on their professional or business websites, for example), publication alone is not enough to create implied consent. For implied

consent to exist the address must also have been published with the consent and knowledge of its owner, which means that lists of addresses compiled and sold to senders by third parties may not suffice. Further, CEMs sent to any publicly published address must be sufficiently relevant in that the address “must have been published in such a manner that it would be reasonable to infer consent to receive the type of message being sent”. CASL may be one of the world’s most onerous pieces of anti-spam legislation. Its reach includes far more than what your clients might commonly picture when we think of online “spammers” and it has caused significant headaches for Canadian businesses large and small by creating the need for complicated compliance efforts, internal policy development, record keeping, and the revamping of marketing strategies. If your clients are going to advertise with unsolicited electronic messages, they may want to give you a call before hitting send.

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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 personal or professional problems. Assistance is provided at no cost to all those who qualify for the program.

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SPRING 2018 23

COMMENTARY

WHAT LAWYERS SHOULD KNOW ABOUT THE DEMISE OF THE CROWN

JARED DUNLOP AND TOM RICHARDS || MLT AIKINS LLP

ueen Elizabeth II has reigned as Canada’s Sovereign for roughly one third of its postConfederation history. The majority of living Canadians have known no Sovereign other than Queen Elizabeth II. Given the length of Her Majesty’s reign, there is a tendency in Canada to ascribe an immortal element to her. She is not just Queen Elizabeth II, she is “the Queen”. However, the reality is that Her Majesty will not reign forever. Legally, the end of the reign of a Sovereign, whether by death or abdication, is referred to as the “demise of the Crown” (a “Demise”).

Undoubtedly, the Demise of our present Sovereign will be a historic event in both Canada and the broader Commonwealth. In response to the death of King George VI in 1952, Canada entered a period of bereavement. Parliament Hill was covered in black bunting, flags were lowered to half-mast, a national day of mourning was declared, and CBC was instructed to only air “appropriate” radio programs. In Saskatchewan, Premier Tommy Douglas gave a tribute in the Legislative Assembly stating that the “loss was more than the death of a Monarch. It was more than the passing of a great public figure. It was, to many people, a sense of personal loss”. A Demise is not just a historic or public event. It is also a legal event. As such, lawyers stand to be particularly impacted by this change. The purpose of this article is to address some of the pertinent issues concerning the Demise that affect lawyers. Continuity of Actions The Demise will not affect any current legal action.

24 BARNOTES

Demise provisions exist in both 1995 (Saskatchewan) and the (Canada). Both Acts provide for continuity in court and government. An action or other court proceeding will not be discontinued or stayed by the Demise and shall proceed as if the Demise did not occur. Queen’s Bench to King’s Bench Lawyers may find themselves in the awkward situation of filing documents with the Court of Queen’s Bench immediately before or after the Demise. Fortunately, in such circumstances, section 3 of provides guidance. Upon the Demise, Her Majesty’s Court of Queen’s Bench for Saskatchewan will be immediately renamed His Majesty’s Court of King’s Bench for Saskatchewan. Despite the immediate change in name of the Court, documents that were filed prior or soon after the Demise do not need to be amended. Section 3(3) of states that in all documents filed with the Court, the Court is sufficiently designated by the words “In the Queen’s Bench” or “In the King’s Bench”. It appears that using either terminology is sufficient for the filing of documents. However, the authors recommend that, if documents are filed shortly after the Demise, a respectful effort should be made to address them to the Court of King’s Bench. Queen’s Counsel to King’s Counsel Upon the Demise, many of our learned friends will want to update their online profiles or business cards from QC to KC. Although probable, it is not entirely clear that the appointment of Queen’s Counsel

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automatically transforms into one of King’s Counsel. There is a surprising dearth of guidance concerning this issue. For example, only permits the Lieutenant Governor to appoint “Her Majesty’s Counsel”. The Act does not contain successorship provisions to deal with the eventuality of members becoming “His Majesty’s Counsel” or “King’s Counsel”. Conceivably, a legislative amendment may be required before lawyers will officially become King’s Counsel. However, the above is likely an overly narrow interpretation that ignores the traditional purpose of the designation. Historically in the United Kingdom, a King’s/Queen’s Counsel designation was awarded to barristers who were appointed to conduct court work on behalf of the Crown. They were not, however, appointed to advise the Sovereign in their personal capacity. These designations were not tied to a specific Sovereign, but rather to the Crown generally. The Crown has been characterized as a corporation sole. A corporation sole creates a corporation out of an office. The corporation sole does not create a distinction between the office-holder (the Sovereign) and the office itself (the Crown). Although the office and office-holder retain corporate and individual capacities respectively, the two are essentially fused together. As such, references to “His/Her Majesty”, “the Queen/King”, etc. invoke the Crown, which is the Sovereign’s corporate personality. A change in gendered language concerning different Sovereigns is inconsequential. Differently-gendered language is synonymous because that language references the same corporate personality 1. Given this, it follows that the existence of a QC or KC designation is not contingent on the reign of the specific Sovereign who grants the title. The designation is linked to the Crown itself. Thus, the gender of the Sovereign who granted the designation is irrelevant, and the gendered language of the designation should change automatically as required.

Support for the suggestion that the change between QC and KC is automatic can also be found in (UK) (the “UK Act”). The UK Act established that the persons in the civil service and Crown offices were employed by the Crown, not the Sovereign in their personal capacity. As such, a Demise did not automatically terminate the holders of these offices. The spirit of the UK Act has been explicitly adopted by Canadian jurisdictions. For example, in Saskatchewan, adopted this principle. When this Act was repealed, its provisions were rolled into , discussed above. The contention that upon a Demise the change from QC to KC is not automatic runs contrary to the spirit of over a century of statutory law that has aimed to minimize the disruptive effect of this event. NATIONAL HOLIDAY On the assumption that the Demise will occur upon the death of the Sovereign, dates for trials, mediations, and closing dates may have to be changed as a result of a national holiday being declared. states that, on the death of the current Sovereign, the Prime Minister is to pass a resolution expressing “loyalty and sympathy” to the new Sovereign and issue an Order in Council declaring the day of the funeral to be a national holiday for mourning. Based on earlier precedents, Canada can expect the funeral to occur nine days after the Demise. IN THE END… The authors wish Her Majesty a continued long and happy reign. However, lawyers should be aware of some of the practical questions that will result from the Demise. Hopefully this article has helped to address some of those questions. . 1 For more on this see Paul Lordon, Crown Law (Toronto: Butterworths, 1991). Also see Phillipe Lagasse and James W.J. Bowden, “The Crown as Corporation Sole and the Royal Succession: A Critique of Canada’s Succession to the Throne Act, 2013” (April 2014) 23 Constitutional Forum 17.

SPRING 2018 25

COMMENTARY

TIME FOR A NEW TORT? MALICIOUS PROSECUTION IN CIVIL PROCEEDINGS

JASMINE LOTHIAN

he tort of malicious prosecution as a remedy for defendants who have been damaged by unjustifiable criminal proceedings is well established in law. However, in various common law jurisdictions, the tort has been gradually expanded to include unjustifiable or frivolous civil suits. Unlike the United Kingdom and the United States of America, Canada has yet to officially recognize this new tort based on the attempt to balance competing public policy interests between the interest in having plaintiffs bring their complaints before courts without fear of recrimination and, conversely, the interest in protecting citizens from the harassment of meritless litigation.1 However, it is arguably time that Canada considers that the U.K. and U.S. have seemingly struck an appropriate balance between these competing concerns and seeks to strike this same balance by recognizing a new tort for civil malicious prosecution. The United Kingdom In a landmark 2016 decision, the U.K. Supreme Court confirmed that a claim in malicious prosecution can be brought in relation to civil proceedings by an individual against another individual.2 After an extensive review of the history of the tort of malicious prosecution, Lord Toulson, delivering the lead judgment, stated that it seems instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating it.3

As a result, the Court created a new tort of malicious prosecution in civil proceedings. The new tort provides a remedy for defendants who

26 BARNOTES

have been faced with proceedings brought against them maliciously and without reasonable grounds. , the new cause of According the majority in action comprises six elements: 1. civil proceedings must have been instituted against the claimant; 2. the proceedings must have ended in the claimantâ&#x20AC;&#x2122;s favour, whether by settlement, abandonment or judgment; 3. the proceedings must have been procured by the defendant; 4. the proceedings must have been without reasonable and probable cause; 5. the proceedings must have been malicious, meaning the court process must have been deliberately misused; and 6. damage must be suffered as a result of the prosecution.

The Court provided some guidance with respect to the fourth and fifth elements, which are the core of establishing malicious prosecution. With respect to reasonable and probable cause, the majority said the defendant does not have to believe the proceedings will succeed, but rather it is enough that, on the material available, there was a proper case to lay before the court.4 Malice is an additional requirement, which is separate from reasonable and probable cause, although they may intertwine.5 The critical feature of malice is that the proceedings instituted by the defendant were not a bona fide use of the courtâ&#x20AC;&#x2122;s process.6 The majority stressed that claimants will have a heavy burden to discharge in establishing the existence of all of these elements.7 However, where these elements can be established, a claimant who brings unfounded proceedings for malicious reasons

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will face the threat of additional sanctions, beyond the usual risk of receiving an adverse cost award. The majority’s decision to create this new tort was based largely on issues of policy and consideration of whether there were any compelling “countervailing factors” to warrant rejecting the malicious civil prosecution tort. The majority considered numerous policy issues, including the following risks that it may: provoke a flood of unmeritorious claims; deter persons who have valid claims from suit; jeopardize the finality of litigation; duplicate relief afforded by other causes of action; prompt additional litigation due to the difficulty in defining the concept of malice; and impose an unfair duty of care on the litigant that was not reciprocally placed on the respondent. However, the majority ultimately determined that none of these policy concerns were sufficiently strong to displace the need to compensate a person for injury suffered as a result of malicious prosecution of legal proceedings. The United States Many states in the U.S. have recognized a tort of malicious prosecution in civil proceedings similar to the U.K., although giving it a different name—a “vexatious suit”. The tort of a “vexatious suit” was created in an attempt to recognize an individual’s interest in not being subjected to unjustified litigation. Ultimately, a vexatious suit is a simply a malicious prosecution reserved for civil actions.8 While the tort has a different name in the civil context, the test for proving the tort is the same whether the alleged malicious prosecution arose out of criminal or civil proceedings. To establish either a cause of action based on malicious prosecution or a vexatious suit, it is necessary to prove: 1. want of probable cause; 2. malice (i.e. general malicious of a wrongful act done without just cause or excuse); and 3. termination of suit in the plaintiff’s favour.9

Many U.S. commentators say the crux of proving a vexatious suit lies in proving the first element, lack of probable cause. In determining “probable cause”

the Supreme Court stated that civil probable cause constitutes a “bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances in entertaining it”.10 Given that no vexatious suit claim can stand where a litigant acts in good faith and takes a reasonable (albeit erroneous) position, proving lack of probable cause requires “an extraordinary showing of impropriety”.11 The reasonableness of a defendant’s action must be judged in light of the total circumstances known at the time he initiated the proceeding. U.S. courts and commentators suggest this places an onus on the defendant akin to a due diligence requirement.12 The diligence the defendant must use in discovering the facts or in ascertaining the accuracy of information in his possession, is that which a reasonable man would use under the circumstances.13 To proceed on the basis of a mere rumor without investigation is unreasonable14 and in some cases, a failure to afford the plaintiff any opportunity for explanation may preclude the existence of probable cause.15 In many U.S. jurisdictions there is a fourth requirement that must be established to succeed in a vexatious suit, which requires the plaintiff to show the existence of special damages.16 Special damages can only be shown if the result of the prior proceeding interfered with the plaintiff’s freedom (e.g. arrest), property (e.g. attachment), or other similarly dire consequences going far beyond the physical, psychological or financial demands of defending a law suit.17 This can be a significant hurdle, but is deemed necessary by some courts in order to protect the policy of law, which is intended to afford fair opportunity to all to have their claims heard in court. The jurisdictions that impose this fourth factor state that to allow in every case of a failure by the plaintiff to establish his or her cause of action, with no special damage resulting therefrom, would open a floodgate to a new species of litigation.18 However, many state courts have refused to impose this fourth factor and prefer the lower, three-part threshold, mainly due to the fact that costs awards are exceptional in the U.S. and thus inadequate to compensate victims

SPRING 2018 27

COMMENTARY

of malicious civil proceedings.19 Canada In contrast, Canada has yet to confirm that liability for malicious prosecution can be established in civil proceedings. However, despite reluctance to fully endorse this new tort, there are some examples where Canadian courts have allowed malicious prosecution claims against individuals other than the Attorney General or Crown prosecutors in limited contexts. For example, in 1990 the Ontario Divisional Court held that a professional regulator could be sued for malicious prosecution based on wrongfully instituted disciplinary proceedings.20 In addition, the Alberta Court of Queenâ&#x20AC;&#x2122;s Bench recently imported malicious prosecution claims into child welfare proceedings.21 Importantly, in the Ontario Superior Court of Justice also allowed a claim for malicious prosecution against a private individual who had wrongfully reported an incident to the police.22 Although stemming from complaints made during a criminal case, the court allowed a civil action against the private individual and awarded damages of $23,866.37.23. These cases provide evidence that a new tort for malicious prosecution in a civil context may be allowable in Canada. Moreover, the recent U.K. Supreme Court decision arguably opens the door for a full extension of the tort to the civil context in Canada. The current test for malicious prosecution in criminal proceedings requires that: 1) proceedings are instated by the defendant against the plaintiff; 2) the proceedings are concluded favourably for the plaintiff; 3) there was a lack of probable cause for the defendantâ&#x20AC;&#x2122;s conduct; and 4) there was an improper purpose underlying the defendantâ&#x20AC;&#x2122;s conduct, as opposed to an honest belief in guilt.24 This test is highly similar to the U.S. and U.K. tests for malicious prosecution in civil proceedings tort. Many academics have put forth policy arguments in favor of recognizing a new tort for malicious prosecution, such as deterring bad faith conduct by defendants, encouraging pre-litigation due diligence, maintaining the integrity of the judicial process by preventing courts to become agents for frivolous

28 BARNOTES

actions, and preserving judicial economy by limiting baseless actions.25 Conversely, others argue against recognizing a new tort, namely that there are other disincentives to frivolous litigation (namely the ability to award costs) and recognizing a new tort would increase the burden on the legal system. In , Justice Lamer addressed the negative policy concerns when providing several policy justifications for allowing malicious prosecution clams in the administrative context. Specifically, he stated that the risks of a chilling effect on legitimate prosecutions and opening the floodgates of litigation are mitigated by the onerous and strict burden on the plaintiff with respect to establishing malice and the absence of reasonable and probable cause.26 Furthermore, a recent study in Ontario postshows no evidence that extension of malicious prosecution to the administrative context opened the floodgates to litigation in the last twenty five years.27 These policy justifications would be equally relevant in the civil context and would arguably support the adoption of a new tort for malicious prosecution of civil proceedings in Canada. Conclusion In previous years, common law courts have struggled to redefine the scope of malicious prosecution as they attempted to balance policy concerns between encouraging claimants to seek retribution vs. protecting individuals from meritless litigation. However, U.K. and U.S. courts have addressed these policy concerns and struck an appropriate balance by placing the burden on the claimant to show malice and lack of reasonable and probable cause. While Canada continues to be reluctant to expand the tort of malicious prosecution outside of criminal proceedings it may be time to officially give the tort of malicious prosecution of criminal proceedings a new sibling in the civil context. 1 W. Page Keeton, Prosser & Keeton on Torts, 95th ed, (West 1984) at section 120. 2 Willers v Joyce [2016] U.K.SC 43 [Willers] 3 Willers, ibid at 43. 4 Willers, supra note 2 at para 54. 5 Willers, ibid. 6 Willers, ibid at para 55. 7 Willers, ibid at 56. 8 Vandersluis v Weil, 176 Conn. 353 [Vandersluis]. 9 Vandersluis, ibid.

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10 Charlotte Hungerford Hospital v Creed, 144 Conn. App. 110 (2013). 11 Passlogix, Inc. v 2FA Tech., 708 F. Supp. 2 ed 378 (SDNY 2010). 12 Robert G. Byrd, “Malicious Prosecution in North Carolina”. 47 NCL Rev 2985 at 293. 13 Swain v Stafford, 26 NC 392 [Swain]. 14 Tyler v Mahoney, 166 NC 509. 15 Swain, supra note 13. 16 Engel v CBS Inc., 93 NY 2d 195, 204 (1999) [Engel] and Airgas-Southwest Inc. v IWS Gas and Supply of Texas Ltd. et al, 390 S W 3d 472 (1990). 17 Ibid. 18 Ely v Davis, 111 NC 24. 19 Stuart M. Speiser, Charles F. KraU.S.e and Alfred W. Gans, The American Law of Torts, Vol. 8 (Deerfield, IL: Clark Boardman Callaghan, 19911) at 158-59. 20 Stoffman v Ontario Veterinary Association, 73 OR (2d) 737 [Stoffman]. 21 Jo v Alberta, 2013 ABQB 693. 22 2014 ONSC 4060 [Drainvill] 23 Drainvill, ibid. 24 Nelles v Ontario, [1989] 2 SCR 170. 25 Van Patten and Willard, The Limits of Advocacy: A Proposal for the Tort of Malicious Defense in Civil Litigation, 35 Hastings LJ 9891 (1984). 26 Nelles, supra note 24 at 197. 27 Michael Martin, The Uncertain Scope of Malicious Prosecution: Insights from Canada, Tort Law Review 2016.

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SPRING 2018 29

BRANCH AWARDS

CELEBRATING OUR VERY BEST 2018 DISTINGUISHED SERVICE AWARD F. WILLIAM JOHNSON, QC || GERRAND RATH JOHNSON LLP

t is my pleasure to introduce to you the recipient of our 2018 Distinguished Service Award, Gerald Tegart, QC. I intend to introduce Gerald using three themes, namely, “distinction”, “service”, and “understanding”. Gerald, I hope these three themes will do some justice to your success in receiving this well-deserved recognition. On the first theme - Distinction - we today recognize Gerald Tegart’s distinction, and I thank our Branch Awards Committee for their unanimous selection of my good friend whom I have known for over four decades. I had some idea of Gerald’s employment over the years at the Provincial Department of Justice, and of his outside activities contributing to our profession, but I had no idea of the full extent of his commitment to our profession and the scope of his distinction. The explanation for my personal ignorance lies in Gerald’s modest nature. Born in 1951, in Wadena, Saskatchewan and raised in the Strasbourg District, Gerald is the epitome of the modest prairie fellow. His body language and his speech message modesty.

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Modesty is of the very fabric of his being. And so it is absolutely appropriate that our Awards Committee and all of us today recognize Gerald’s distinction in his service to the legal profession, in Saskatchewan and in Canada. On the second theme, “Service”, Gerald’s service as reflected on his daunting curriculum vitae is too extensive for full description today. I therefore identify only two areas where he has demonstrated life-long excellence in the law. First, there is Gerald’s long, dedicated service to the people of our province for almost forty years in the Department of Justice, where he began and ended his civil service career. Gerald gained entrance to the College of Law at the University of Saskatchewan in 1973 on the strength of his Bachelor of Science in Engineering degree. He completed his legal studies there in 1976 and secured an articling position at the Department of Justice. Following his call to the bar in 1977 he served as a Crown Prosecutor for three years. For the next

BRANCH AWARDS

twenty-two years he served in the Civil Law Division as counsel to various departments, including Environment, Parks and Renewable Resources, Health, Social Services, and Energy and Mines. Thereafter, for seven years he served as Executive Director of the Civil Law Division and, as the culmination of his career there from 2009 until 2013, he served as Deputy Minister of Justice managing the entire Department of Justice. Second, there is Gerald’s long, dedicated service to the law outside his workplace. This list is long and I reference only the following leading examples: member of the Board of Directors of the Canadian Institute for the Administration of Justice, for four years; member· of the Council of the Saskatchewan Branch of the Canadian Bar Association, for three years; member of the National CBA Task Force on Conflicts of Interest, for seven years; and now as a sole private practitioner as Bencher of the Law Society from 2013 and continuing today, where he has served as Chair or member of multiple discipline hearing panels, and last year agreed to co-Chair the Justice Minster’s Task Force on the delivery of legal services in Saskatchewan. Amazing service!

“Realize that we, as human beings, have been put on this earth for only a short time, and we must use this time to gain wisdom, knowledge, respect and the understanding for all human beings since we are all relatives”. Gerald Tegart has used his “short time” to gain wisdom, knowledge, respect and understanding, and to serve with distinction. For this we salute him today. May he continue to inspire us for many years to come!

On my third theme, “the theme of understanding,” while we understand that today Gerald is added to the cohort of those our Branch has identified as the legal greats of this province, there is a whole other side to Gerald’s story ‒ that is his outstanding commitment to public service in his giving of himself to the community working tirelessly with non-profit organizations including the Regina United Way, the Regina and District Food Bank, and the Saskatchewan Division of the Canadian Red Cross Society. I know each of us understands in our own way, and Gerald better than any of us, the ethereal quality of our praise today and the abiding spiritual quality of his life well lived. The Plains Cree have a proverb, published at the Saskatchewan Indigenous Centre, which I borrow to capture our understanding of what we do here today:

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nniversaries are a time to pause, reflect and acknowledge accomplishments. That is true for individuals but it is also true for institutions as well. The Court of Appeal for Saskatchewan was created on March 1, 1918, with the coming into force of Until that time, appeals from what was then known as the province’s Supreme Court had been heard by its own members reconstituting themselves As a result, the birth of the Court of Appeal was an important development in the evolution of

Saskatchewan’s justice system. Over the course of the last 100 years, the Court has been the last stop on the appellate journey for all but those very few cases that have made their way to the Supreme Court of Canada. Building on the excellent work of the province’s trial courts, and with the capable assistance of counsel, the Court of Appeal has played the lead role in shaping and developing the law of our province. It has rendered thousands of decisions in an extraordinarily wide range of subject areas and has often been at the centre of landmark historical developments. Directly or indirectly, the work of the Court has touched the lives of every resident of Saskatchewan. A very successful dinner marking the Court’s centenary was held on March 2nd in Regina. Over 360 members of the legal community enjoyed an evening featuring tributes, retrospectives, music and humour. My colleagues and I were delighted that so many friends from the bench and bar were able to join us for this celebration.

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FROM THE BENCH

ONCE AGAIN - AT THE CROSSROADS ON ACCESS TO JUSTICE AND RECONCILIATION JUDGE PAT REIS || PROVINCIAL COURT OF SASKATCHEWAN

hen thinking about what I would be saying, I thought that it would be helpful to revisit my earlier article, which appeared in the Winter 2016 edition of BarNotes. With my apologies it is included, warts and all. I say this because it was prepared (in my mind) while driving back to Yorkton from Regina and then written in the wee hours, after I had realized that the deadline for its submission had passed. Yes, judges continue to have deadlines. However, I must admit that it is now somewhat easier to not always meet them. Also last time, I did not have the time to file a picture of the wonderful gifts that I had received, which I do now. As an update to the article we have renamed our committee, now called the Indigenous Committee. It is made up of Chief Judge James Plemel, Judge Gerald Morin, Judge Robert Lane, Judge Michelle Marquette, Judge Robert Mackenzie, Judge Michelle Baldwin and myself. We continue to reach out to the Indigenous communities that we serve and them to us. I am now also privileged to be sitting on the new committee of the Canadian Association of Provincial Court Judges, which is named the Indigenous Peoples and the Courts. I look forward to my work on this committee. If anyone has any suggestions or concerns, please do not hesitate to contact me about them. Congratulations to the Saskatchewan Branch of the CBA for the success of this year’s Mid-Winter Meeting in Regina. I was pleased to be part of a panel. Our topic was “Diversity in the Courtroom.” I would once again like to thank my co panelist, Professor James Daschuk who gave an excellent

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presentation on Canada’s historical treatment of Indigenous people, as so well researched and written about in his book, “Clearing the Plains”, which is a must read. I would also once again thank my other co panelist, Bev Poitras, who is the Justice Director of the File Hills Qu’Appelle Tribal Council for her thoughtful insights and perspectives. Additionally, I would like to thank William Crowe-Buffalo and Preston Gardypie of the George Gordon First Nation Wellness Centre who kindly and rather unexpectedly offered a prayer for my talk. Part of my presentation once again recognized the commendable work done by the Truth and Reconciliation Commission (TRC) and its final

FROM THE BENCH

report with its 94 Calls to Action, also a must read. I also said that the TRC’s report was incorporated into a presentation given by Judge Gerald Morin and Eleanore Sunchild last year on behalf of the Law Society, which was entitled “Reconciliation In The Courtroom - It Is Required!”. The presentation (which is accessible) refers to the case (Sask. C.A.) which is another must read and provides a useful approach to ensure that factors will continue to be considered and given the weight that they should. Judges of our Court receive information from a number of sources, including among others, defence counsel, Crown counsel, probation officers, youth workers, Aboriginal court workers, First Nation justice workers, the accused themselves, their families and other supporters, as well as from letters of support, Pre-sentence reports and Gladue reports. Finally, it is my hope that our presentation may be helpful in some small way in understanding how we’ve got to where we are at and how we may move forward.

FROM THE BENCH

AT THE CROSSROADS ON ACCESS TO JUSTICE AND RECONCILIATION JUDGE PAT REIS || PROVINCIAL COURT OF SASKATCHEWAN

rior to my appointment to the Provincial Court about three years ago, I had been working on Access to Justice, as a bencher with the Law Society. We had an outstanding group of benchers, who were led by the then Executive Director, Tom Schonhoffer, QC. After my appointment, I was privileged to spend time with many lawyers, professors, students and judges, including Mr. Justice Thomas Cromwell, as he then was, on this complex goal. Mr. Justice Cromwell’s dedication and leadership will be sorely missed but his legacy will endure. As a Provincial Court Judge and our Court’s representative to the CBA, I have had the opportunity of working on Reconciliation. The efforts of Mr. Justice Murray Sinclair on the Truth and Reconciliation Commission are commendable. More recently, I have been fortunate to work alongside Chief Judge James Plemel, Judge Robert Lane, Judge Gerald Morin, Judge Donald Bird, and Judge Michelle Marquette on our fairly new Aboriginal Communities Committee. We have been reaching out to the Aboriginal communities that we serve (and them to us) on reconciliation and in particular, the calls to action from the TRC’s report. In my view, the goals of Access to Justice and Reconciliation are not separate but rather are inextricable. Furthermore, that Saskatchewan and Canada are at a critical crossroads on these fronts. The opportunity is upon us now and I am optimistic that we will utilize it.

It is with this background, that I share a story with you. After court in Broadview on a beautiful fall day, I attended a meeting with Chief Margaret Bear, her council, elders and numerous other people on the Ochapowace First Nation, which was kindly arranged by Ms. Betty Watson who is their justice worker. On the way out, I knew that it was going to be a good day as we saw two soaring eagles. At the meeting, we discussed many issues with an emphasis on the TRC’s calls to action, especially with respect to justice, in the context of reconciliation. The meeting was held at an inspiring new facility, named after Chief Denton George, which included a metal teepee. The major themes that were discussed included: good relations within their own community, with the police, and with others at large, the overrepresentation of Aboriginal people in custody, a concern for their youth, and the desire for more alternative measures that their community could deal with, respect for elders, the importance of Treaties (especially Treaty 4) and the better education of non-Aboriginal people about the importance of Treaties and their willingness to build partnerships. Those in attendance saw their meeting with me as historic, which I found very humbling. I was further humbled to receive gifts of a star blanket, a handmade and exquisite medallion, braided sweetgrass and special tobacco.

and then a feast. It could not have been a better day. This is just one of the many positive experiences that I, and the other members of our committee, have had. It seems to me that while Saskatchewan is a relatively small province, there is no reason that we cannot lead on the goals of Access to Justice and Reconciliation. It is because of our size and the familiarity that those in our legal community have with each other, that we are best able to seek out, be open to, and to forge new relationships and partnerships with those who are not, in achieving the important goals of Access to Justice and Reconciliation. Everyone in the legal community has a shared responsibility and a role to play in this regard. I would simply encourage everyone in the CBA and our legal community to be proactive and to do what they can to assist in achieving the laudable goals of Access to Justice and Reconciliation. We do not want to lose the opportunity that presents itself, at the pivotal crossroads that we are now at.

After the meeting, we travelled to the Kahkewistahaw First Nation where I was honoured to participate in a sweat

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Congratulations to our Court of Appeal on the great success of their Centennial Dinner. Our Court would like to thank Chief Justice Robert Richards, Justice Peter Whitmore, Justice Georgina Jackson, Justice Jacelyn Ryan-Froslie, Nadine Barnes, Barb Hookenson, the organizing committee, the musical contributors and everyone else involved. While it was a wonderful event, I must say that on a couple of occasions that night I returned to my long gone habit of reaching for my left ribs with my right hand (thanks to an old rugby injury), while Justice Richard

Danyliuk was speaking. As a thank you, my picture on a coffee mug is on its way to him. In closing and on a more serious note, despite the recent challenges in our justice system, there is a lot of kindness, sensibility and goodwill out there and I remain hopeful and optimistic that we can achieve access to justice and reconciliation. It is a good time for everyone in the CBA and our legal community to engage in thoughtful conversations with others and to listen to each other.

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Welcome CBIA/Lawyers Financial is pleased to welcome James (Jim) Britton, our new authorized advisor for lawyers, their families and employees in Saskatchewan.

Jim has been in the insurance/financial services industry for over three decades. He has authored two books, and was nominated for Wealth Professional Awards in 2015, 2016 and 2017. Jim has attained the CFP (Certified Financial Planner), CLU (Chartered Life Underwriter), and EPC (Elder Planning Counselor) designations, which all benefit the legal community. We are confident Jim will do a great job fulfilling our mission to provide the Saskatchewan legal community with sound advice and a range of high quality, low cost, insurance and investment solutions. Contact Jim Britton at 306.596.2934 or j.britton@lawyersfinancial.ca.

lawyersfinancial.ca Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trade mark of CBIA.

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PRO BONO SPOTLIGHT

REPRESENTATION FOR INMATES: PRO BONO LAW SASKATCHEWAN LAUNCHES NEW PANEL PROGRAM PIERRE E. HAWKINS || PRO BONO LAW SASKATCHEWAN

BLS is proud to announce the successful launch of our Inmates Legal Assistance Panel Program. This program, launched in late 2017 and inspired by similar work done at CLASSIC, provides legal advice and representation to inmates facing institutional legal issues. The administration of justice within correctional institutions has recently proven to be a hot button topic. While media reports often focus on the use of segregation in correctional facilities, the range of legal issues and potential sanctions in the institutional setting are broad. Inmates frequently face legal issues including administrative charges, segregation review hearings, transfer applications, and applications for access to medication and medical services. The handling of these legal issues can have an impact on an inmate’s quality of life, contact with family, privileges, and earned remission. As a result, these issues can have a profound impact on an inmate’s rehabilitation. Much of PBLS’ work in this field involves representing inmates who have been charged with institutional disciplinary offences. These offences are laid out in institutional Directors’ Rules and in . Together with , the Regulations establish a procedure for the hearing of such charges. Once an inmate is charged, he or she appears before a panel made up of one to three facility staff members appointed by the Director. Where institutional charges are heard by a panel of facility staff members, inmate legal representation is important. In many cases, panel members have previous experience with the inmates appearing before them. The institutional charges set out in the Regulations and Director’s Rules are often vague and little case law exists to aid in their interpretation. This

leaves each panel responsible for the interpretation of the charges. Without legal representation present at the panel, this interpretative exercise is difficult. A similar charge panel structure was addressed in , 2006 ABQB 858, where the Alberta Court of Queen’s Bench ruled the legislation underpinning the panels failed to meet the requirements of tribunal independence under section 7 of the Charter. As a result of the Court’s ruling in that case, Alberta has since introduced independent adjudicators to the institutional discipline process. Challenges persist at the appeal stage, where rights are in many cases limited to appeals to actors within the institution. The appropriate application of the correct standard of review is important at this stage, requiring a more technical legal assessment. By the time applications for judicial review are possible, inmates have often served the sentence imposed by the panel. The pervasiveness of addiction and mental health issues within correctional centres underscores the importance of the proper handling of institutional legal issues. In such a controlled setting, the principles of administrative law risk falling by the wayside. Wherever vulnerable people face decision-making bodies, adequate legal representation is important to ensure that justice is both done and seen to be done. Nowhere is this truer than in prisons. PBLS would like to thank its volunteers Thomas Hynes, Kara Moen, and Daniel Leblanc for their excellent work on behalf of inmates at the Regina Provincial Correctional Centre since the launch of the program. If you are interested in volunteering for this panel, whether you are a current PBLS volunteer or not, please contact the writer at pierre.hawkins@ pblsask.ca.

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CALENDAR OF EVENTS May 3, 2018

Section Planning Orientation

Saskatoon

May 4, 2018

Section Planning Orientation

Regina

June 14, 2018

ANNUAL MEETING 4 pm (Reception to Follow)

Saskatoon Club

June 14, 2018

President’s Dinner

Saskatoon

July 9, 2018

Legal Directory Orders – Opens Online

August 8, 2018

Section Registration – Opens Online

August 31, 2018

Annual Membership Expires – Renew Online

CBA Saskatchewan Branch Section year is now done. Watch for new section meetings beginning September 2018. However, visit www.cba.org, Professional Development Tab and learn about some great webinars you can access at your convenience as part of your CBA membership.

MOVED OFFICES OR CHANGED JOBS?

LET US KNOW! We do our best to keep our Legal Directory up to date. If you’ve moved offices or changed jobs, let us know! Send to: info@ cbasask.org. Deadline: June 30, 2018

ADVERTISER INDEX

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