Barnotes Winter 2017 Vol.32.1

Bar Notes

THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH

WINTER 2017

VOL. 32.1

THE NEW NATIVE LAW CENTRE | Page 12 WINTER 2017 1

The Canadian Bar Association Saskatchewan Branch

IN THIS ISSUE

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

FEATURE COMMENTARY

BARNOTES Editorial Board

PRO BONO SPOTLIGHT 27

HANNAH ZIP Editor Knott den Hollander

Passing the Torch

FROM THE BENCH 29

12

Larry Chartrand of the Native Law Centre, University of Saskatchewan

POSTCARD FROM A LAWYER 31

5

Mid-Winter Meeting Invitation to Attend

7

President’s Message

11

Delaying the Rite of Passage

NATIONAL NEWS 34

BRANCH NEWS

Judging in the North

New! Investment Program for Lawyers

15

‘Twas The Night Before Christmas

16

Examining the Provision of Legal Services in Saskatchewan

19 21

Update from the Law Reform Commission of Saskatchewan You Can’t Google That

2 BARNOTES

TRISTAN CULHAM MLT Aikins LLP JARED EPP Robertson Stromberg LLP JACKIE FRANCIS Francis & Company LEAH HOWIE Law Reform Commission of Saskatchewan LINDSAY HJORTH University of Saskatchewan AMJAD MURABIT WMCZ Lawyers MICHAEL SCHERMAN Blake, Cassels & Graydon LLP

JAMES STREETON Wardell Gillis BRENDA HESJE Executive Director CBA Saskatchewan

LAYOUT & DESIGN Katrina Forgrave Graphic Designer

COMMENTARY Let’s Talk

KATE CRISP Scharfstein Gibbings Walen & Fisher LLP

ALIXANDRA STOICHEFF MLT Aikins LLP

Power of the Many

14

SCOTT BELL MLT Aikins LLP

ITEMS OF INTEREST Advertiser Index

35

Calendar of Events

35

Court of Appeal Centenary 28 Hesje Retirement

10

Legal Directory

34

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.

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

BarNotes is published 3 times a year and circulated to over 1,100 legal professionals. If you are interested in advertising, please contact Brenda Hesje, Executive Director, brenda@cbasask.org. © CBA Saskatchewan 305,135 - 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org

EDITOR’S NOTES

TIME FLIES HANNAH ZIP || KNOTT DEN HOLLANDER

I

just attended my 10 Year College of Law reunion over the Remembrance Day weekend. Shout out to the awesome class of ’07! The old cliché “time flies” definitely applies, as I am stunned that ten whole years have gone by and that all of my former classmates look the same. Not to brag, but I still get asked for my I.D.

at the liquor store. LETTERS TO THE EDITOR hrz.kddlaw@sasktel.net I definitely miss my days as a student and enjoy hearing about what both the college and current student body are up to.

2017 is drawing to a momentous close and despite my deep-seated fears that the end of the world was upon us following the U.S. election, the world is still turning and another issue of BarNotes is out for your reading pleasure. I just have to say that I too have been to the Time Out market in Lisbon, Portugal, as described in the Postcard from a Lawyer, and it is truly epic. I highly recommend checking it out if you are ever in Lisbon. Besides the Postcard there are many other interesting and informative articles in this issue that I am certain you will enjoy.

This is a bittersweet issue for me as this is the last BarNotes that has the involvement of Brenda Hesje. As many of you know, Brenda is retiring early next year and she will be greatly missed by everybody in the CBA and legal profession at large. I have enjoyed getting to know Brenda through my work on the editorial board and attendance at CBA events over the years, and I will miss her. Congratulations on your retirement Brenda, this issue is for you!

May all of your future endeavors be fabulous!

WINTER 2017 3

Your priority is law. Our priority is you.

LAWYERS FINANCIAL - we measure success in satisfied clients, not dollars. Ensuring you have access to the highest quality insurance and investment products at the very best rates is all we do.

Let us customize a protection and wealth portfolio to your exact specifications.

Connect with your local Lawyers Financial Advisor today.

Find them at lawyersfinancial.ca or 1.800.267.2242 Lawyers Financial products and services are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trade mark of CBIA.

4 BARNOTES

BRANCH NEWS

2018 MID-WINTER MEETING: INVITATION TO ATTEND JANA LINNER, CHAIR || MLT AIKINS LLP

M

ark your calendars! The CBA Mid-Winter Meeting is set for February 1 and 2, 2018 at the Regina Delta Hotel in Regina.

The theme of this year’s Meeting is “Practice. Diversity.”

The Committee has worked hard to bring you an impressive roster of speakers tackling a wide range of topics which focus on many of the emerging issues in the current practice of law. There is something, and more, for everyone.

HERE ARE SOME OF THE HIGHLIGHTS… • Justice Russell Brown of the Supreme Court of Canada has graciously accepted an invitation to address members at the Opening Plenary on the topic “Emmett Hall: The Greatest Judge”.

• At the Annual “Breakfast with the Minister”, the Minister of Justice and Attorney General for Saskatchewan will speak on matters of interest to the Profession.

• Judge Kael McKenzie of the Manitoba Provincial Court, who is Canada’s first self-identified transgender judge, will be joining us for a fireside chat on Diversity on the Bench.

• His Grace, Archbishop Don Bolen, will be presenting at the President’s Forum on the topic of Truth & Reconciliation.

• For the Closing Plenary, we will have a distinguished panel of judges from each of the Courts in Saskatchewan presenting on “Ethics in the Courtroom”. The insights offered during this session will be invaluable to those who present on behalf of clients to courts, boards, tribunals and beyond.

Here is a sample of what else is on the program: FOR SOLICITORS: Cybersecurity and data breach issues are common topics in the news these days so join us for a session on Managing Cybersecurity for your practice & clients to stay up to date in this hot topic.

Do you need an update on Canadian developments in the law of contracts? You will want to join us for a discussion of how recent SCC decisions impact your practice. For those grappling with issues in the fast-

paced privacy, FOI, and anti-spam world, Top Issues in Privacy, Access, and CASL is a must attend.

FOR THE CRIMINALLY MINDED: Need an update on recent developments in criminal law and the status of crime in Saskatchewan? We thought so! Don’t miss the sessions devoted to criminal law.

FOR EMPLOYMENT LAWYERS: The Chair of the Saskatchewan Labour Relations Board will team up with union and management side lawyers for a discussion on the recent developments in the area of employment law.

FOR THE CIVIL LITIGATOR: Are you drowning in electronic documents? The prolific use of email communication has changed the practice of civil litigation. The session, Managing e-discovery and legal privilege in the digital age, will provide useful tools and strategies in the e-discovery process to manage large document disclosure, including the use of technology assisted review and ways to avoid the inadvertent disclosure of privileged documentation.

FOR PUBLIC LAW PRACTICE: Are you trying to make sense of the new and adjusted procurement rules under the Canadian Free Trade Agreement and how that will be impacted by the Canada-European Union Comprehensive Economic and Trade Agreement? Me too! Luckily, the session Public Procurement Update: CFTA – The New Landscape will discuss how these trade agreements impact procurement for both public sector organizations and their suppliers and some of the practical compliance issues they will encounter.

FOR FAMILY LAW LAWYERS: An all-star panel will analyze and identify judicial trends in spousal support decisions issued by the Saskatchewan Court of Queen’s Bench and Court of Appeal since the Frank v Linn decision regarding the application of the Federal Spousal Support Advisory Guidelines in spousal support

WINTER 2017 5

BRANCH NEWS

applications. Make it a day and join us for another family law presentation discussing current issues and more.

OLD AND NEW FAVOURITES: In addition to a number of old favourites that will be returning (including updates on wills and real estate, the Law Society and SLIA), there are new favourites too (for example, if you want to learn more about about CSS and International Efforts under the Paris Accord, you’re in luck!).

Please check out the brochure for the entire educational program. The Law Society of Saskatchewan has approved the educational program for credit of 12½ CPD hours, including 10 ½ ethics hours.

The Meeting will not be entirely business. In the evening of Thursday, February 1, 2018, please plan on joining your colleagues at the Capitol for live jazz music, delicious appetizers and signature cocktails, located just around the corner from the Regina Delta Hotel.

Finally, I would like to acknowledge the support of our sponsors and exhibitors and, especially, the hard work of the CBA Saskatchewan Branch staff, Brenda Hesje. I also want to extend my appreciation to our exceptional committee members - Azure-Dee Ashton, Nicholas Cann, Steven Dribnenki; Kristél Kriel, Katherine Melnychuk, Evatt Merchant, Neil Robertson, QC and Greg Sykes - for all of their efforts.

We look forward to seeing you at the 2018 Mid-Winter Meeting in Regina!

ON JANUARY 19, 2018 CLASSIC WILL HOST OUR INAUGURAL “CIRQUE DE CLASSIC” FUNDRAISING EVENT AT THE SHERATON CAVALIER HOTEL IN SASKATOON! Cirque de CLASSIC replaces the “Gown to Gown Lawyers’ Charity Gala” - CLASSIC’s main fundraising event for our first 8 years of existence.

It’s time for a change – and we cannot think of anything better than bringing together all of CLASSIC’s communities – from our non-profit friends, community members, the legal community, and beyond.

This event is informal, business casual will do. It’s going to be fun and will consist of food stations, carnival style booths (i.e. fishing pond, fun fortunes, caricatures, and more!)

Tickets are available at Picatic at: https://www.picatic.com/CIRQUEDECLASSIC • legal services and social justice programming low income, marginalized residents with an emphasis on Indigenous peoples; and • experiential learning opportunities to law and inter-disciplinary students.

6 BARNOTES

CLASSIC needs your support during these difficult economic times through ticket sales and sponsorship of the event. If you can support us, we can continue to support people who need access to justice. See you there!

BRANCH NEWS

PRESIDENT’S MESSAGE EVATT MERCHANT || Merchant Law Group LLP

I

t was a busy and exciting Fall for CBA Saskatchewan.

SECTIONS HAVE CHANGED! CBA Saskatchewan has introduced changes for 2017-18 that affect noon meetings held by our Sections. Here are the highlights: 1. CBA members can now join as many Sections (Business Law, Civil Litigation, Family Law, and so on) as they desire at no cost -- i.e.: there is no longer an ‘annual registration fee’ to join Sections.

2. Section Luncheons are now events -- i.e.: a CBA member simply pays the meal cost ($31.50) for each individual lunch topic that he or she chooses to attend.

3. This new approach is aimed at making Sections more accessible for members and reducing the cost to take part in CPD activities.

As a result of these changes, the CBA Saskatchewan hope many CBA members will decide to join more than one Section. For any assistance in the navigating the new Section registration system, please contact Monteen Dent at the CBA Branch Office in Saskatoon (monteen@cbasask.org).

ACTIVITIES AT THE U OF S COLLEGE OF LAW In the past few months, CBA members have had the opportunity to meet with many impressive students from the College of Law. On September 19th, I represented the CBA as one of the in the College’s The incoming class of 129 new first-year law students were each presented on stage with a black academic cloak, to symbolize the beginning of their legal studies. During the ceremony, the students recited a pledge that included a commitment to share

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

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

On September 28th, CBA Saskatchewan hosted the CBA Wine and Cheese College Reception, held in the Student’s Lounge. This annual event highlights for law students the benefits and opportunities provided to CBA members during their legal studies. This Fall‘s reception was well attended by both students and faculty. Most of the attendees were first year law students, with many questions about the nature of the profession and seeking advice on their future legal careers. This reception also offered law students the opportunity to meet with local lawyers in an informal environment, and hear firsthand about the benefits of practising in Saskatchewan.

On October 20th, the CBA helped sponsor the College’s which saw a group of 14 law students travel to the communities of Melfort, Tisdale, and Nipawin.

The bus tour travels to different corners of the

WINTER 2017 7

Miracle babies need your will to survive.

Every year more and more babies are born premature and critically ill, requiring specialized care only available in Newborn Intensive Care Units. These babies are born too soon, too small or too sick.

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:

8 BARNOTES

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

BRANCH NEWS

province each year, to promote the opportunities of establishing a legal career in a rural or small urban community. The Small Urban and Rural Committee at the College organizes a tour each year. Taylor Clark, Darcy Dumont, Liam Fitz-Gerald, Brandy Knight, and the College Career Officer, Terri Karpish, served as this year’s committee.

On October 3rd, I was pleased to attend the Twentieth Annual The title of the lecture was and featured two speakers, Senator Raynell Andreychuk (U of S LLB’67) and Madam Justice P. K. Shergill (U of S LLB’90) of the B.C. Supreme Court.

The Student Editorial Board is comprised of nineteen U of S law students who diligently work to prepare and publish the twice per year (www.sasklawreview.ca).

On November 1st, the CBA hosted the at the U of S Law Library. This year’s featured 20 local firms seeking to entice law students regarding the opportunity to article and then practice in Saskatchewan. Only Saskatchewan law firms can participate in the and booths are swag-free (participating firms must refrain from providing students with promotional items and giveaways). This annual event is an important opportunity for local firms to inform students on the promising careers that law graduates have available in Saskatchewan.

THE CBA “MEET YOUR MATCH” MENTORSHIP PROGRAM On October 26, the Saskatchewan Branch held its in downtown annual Saskatoon. This reception allowed 50 participating law students from the College to meet CBA members who will act as their mentors for the year. The mentorship program matches students with lawyers from throughout Saskatchewan. The goal is to have CBA members share with students their knowledge and insight about the practice of law and the process of becoming a lawyer in Saskatchewan.

AROUND THE PROVINCE I was pleased to bring greetings on behalf of our Branch at the swearing-in ceremonies of three new

Judges of the Provincial Court this Fall -- Judge Michelle Baldwin in North Battleford; Judge Robert MacKenzie in La Ronge; and Judge Lloyd Stang in Regina (who now serves as a Judge in Melfort). The remarkable careers of these three new jurists was made evident through many testimonials offered by colleagues and friends at their swearing-in ceremonies.

CBA Saskatchewan was also honoured to take part in the Queen’s Bench Call to the Bar ceremonies for 26 newly called lawyers in Saskatoon and 21 newly called lawyers in Regina. These new practitioners have diverse and impressive backgrounds, and provides new bench-strength to the local legal community.

A PERSON WHO NEEDS NO INTRODUCTION: BRENDA HESJE More than two decades ago, CBA Saskatchewan had the good fortune to lure Brenda Hesje to become our Executive Director. Since then, she has given the CBA twenty-two plus years of yeoman’s service and is the engine of our provincial Branch. Her dedication to the CBA is widely recognized within the national CBA organization as second to none.

Brenda will understandably (but unfortunately for the CBA) begin a well-deserved retirement at the end of February 2018, as she and Joel begin their transition to a new home at Lake Diefenbaker and dedicate more time to traveling south for the winter months.

CBA Saskatchewan is holding two events to honour Brenda’s retirement, to which all CBA are invited. In Regina, a reception will be held at the Delta Regina Hotel, from 5 PM to 7 PM on January 31st (the evening before our 2018 CBA Mid-Winter Meeting begins), and in Saskatoon, a similar reception will be held at the Saskatoon Club, from 5 PM to 7 PM on February 8th. Please plan on joining us for either reception to help thank Brenda for long and dedicated service to our local legal community!

WINTER 2017 9

Join us for a retirement party honouring Brenda Hesje Brenda Hesje, the Executive Director of the CBA Saskatchewan Branch, is retiring at the end of February. Please join us as we celebrate her many achievements over the last 22 years at one of the following Come & Go Receptions: REGINA Wednesday, January 31, 2017 Delta Regina 5:00 – 7:00 pm SASKATOON Thursday, February 8, 2018 Saskatoon Club 5:00 – 7:00 pm Please RSVP to info@cbasask.org If you’re unable to join us in person, email Brenda with your favorite memories or best wishes for her retirement at: brenda@cbasask.org.

Photo Credit: Bryan Salte, QC 10 BARNOTES

BRANCH NEWS

THE POWER OF THE MANY

WHY CBA ADVOCACY – AND YOUR VOICE – MATTERS CAROLINE NEVIN || CBA BRITISH COLUMBIA

H

ave you ever wondered about the CBA’s role in advocating on behalf of Canada’s legal profession? Sure, you pay CBA fees to belong, but perhaps it’s because you like getting free PD through unlimited Sections and online ethics courses. Or, you maximize your professional profile by volunteering, speaking or writing with us. Maybe you support our Access to Justice work at home and around the world, and want to make a difference that way. Or, maybe you don’t pay at all, but happily benefit from everything we do for the profession (if that’s you, THINK about that for a moment, please!).

What does it really mean to deliver on “lawyers for lawyers” advocacy in a truly meaningful way?

President Welsh has outlined a spectacular recent example in his column: this spring, we put all of CBA’s clout, integrity and the weight of tens of thousands of lawyers behind a concentrated effort to ask the federal government to revisit “Work in Progress” (“WIP”) tax reform that would inevitably have resulted in unintended negative consequences to the legal profession and to people of limited means.

Minutes after the federal government’s new plan was announced, the CBA kicked into action – as it always does when policy or legal matters arise of relevance to our members. We are the only national Association that solely represents the interests of the Canadian legal profession. We have a 100% success rate in achieving Supreme Court of Canada intervention status, and we are regularly invited to appear before both Parliamentary and Senate Committees when difficult legal matters get debated.

The media calls us. Members of Parliament and MLAs call us. When there is an important justice or legal concern in the public domain, the CBA is there.

or law that affects lawyers, legal clients or the administration of justice.

CBA staff meet regularly with the appropriate civil servants in Ottawa and in capitals in every province and territory, and maintain those relationships through ongoing discussions, even when no specific issue may be on the table. Our credibility and objective expertise opens doors, but it is always personal relationships that make any advocacy organization truly effective. Volunteers and leaders within the Association also proactively bring forward key issues, and we take their informed counsel and make sure the right people hear their message and any calls to action.

The “well-oiled machine” that is CBA advocacy takes on big national issues like money-laundering provisions, solicitor-client privilege, child rights in the law, immigration rights, and the appointment of sufficient numbers of – and diversity of – judges on our courts. Locally, we take that same respectful but dogged approach to issues like notaries scopeof-practice expansion, Law Society regulation, administrative tribunal amalgamation, and rural access to lawyers. Not to mention really big issues like legal aid funding, no-fault auto insurance... and that damned tax on legal services! All of which we include in this year’s Agenda For Justice (cbabc.org/ A4J) Our success as an effective advocate relies on you: as a supporter through your membership, but also through your willingness to share your views and expertise through Sections, Committees and direct communication on issues with your MPs and MLAs. Let us know how we can help.

The CBA’s primary role lies in bringing the expertise and influence of 200 staff and 35,000 lawyers across the country to bear on the review of any new policy

WINTER 2017 11

FEATURE COMMENTARY

THE NEW NATIVE LAW CENTRE LARRY CHARTRAND || NATIVE LAW CENTRE

I

t is an exciting time at the Native Law Centre (NLC) as we are in the process of creating a new vision and mandate for the Centre. The Centre was first created in 1975 and has accomplished much over the last 45 years. Since its founding, the NLC has significantly advanced the shape of the legal profession in Canada by promoting access to legal education for Indigenous peoples, providing Indigenous legal knowledge and training to the legal profession and contributing to the development of Aboriginal law scholarship. It has placed the University of Saskatchewan on the map both nationally and internationally as a leader in Indigenous legal matters.

However, times have changed since 1975. There have been many developments and changes in the legal relationship between Indigenous peoples

12 BARNOTES

and Canadians since 1975. The composition of the Indigenous Bar has grown considerably in large part due to the success of the Program for Legal Studies for Native People (PLSNP) at the Centre. Canada has unqualifiedly accepted the United Nations Declaration on the Rights of Indigenous Peoples and has renewed its commitment to Nation-toNation relationships in the spirit of reconciliation.

Canada has formally accepted the Calls to Action of the Truth and Reconciliation Commission including some that are directly relevant to the NLC. It has divided the former Department of Indian and Northern Affairs into two separate sections to facilitate this new direction. Moreover, significant legislative and judicial changes have occurred that deal with Indigenous issues including the adoption of section 35 of the Constitution affirming Aboriginal and Treaty rights in Canada and the creation of modern lands claims agreements through specialized resolution processes.

The Centre’s website currently identifies the following objectives of the Centre: • provide and promote access to high quality legal education for Aboriginal people throughout Canada, and to provide a positive example of Aboriginal legal education internationally; • undertake and promote legal research and interdisciplinary legal research of Aboriginal or Indigenous matters, nationally and internationally;

FEATURE COMMENTARY

• publish legal reference and scholarly materials that reflect a wide range of Aboriginal legal and interdisciplinary legal subjects; and • serve as a specialist resource on Aboriginal legal issues; and foster national and international relationships and collaboration for mutual enrichment and for joint work on Indigenous issues.

This issue is related to the concept of reconciliation.

To what extent does the Centre wish to promote the Truth and Reconciliation Commission and its Calls to It is now time to reassess the mandate and vision of Action? Should the vision and objectives of the Centre the Native Law Centre in light of the many changes explicitly address and promote “reconciliation”? that have occurred and to assess the The commission, in its volume future needs of the legal profession on Reconciliation, provides a and society at large in the area of The composition of legal framework and roadmap for Aboriginal and Indigenous law. the Indigenous Bar has overcoming the colonial nature For instance, there is a general grown considerably in of Indigenous – Canadian legal acceptance of the existence of large part due to the relations reflected, for example, in Indigenous peoples’ legal traditions. success of the Program the Call to Action proposing a new However, when conflict between for Legal Studies for Royal Proclamation. Also, there Indigenous law and Canadian law Native People (PLSNP) currently is no dedicated law journal that focuses on reconciliation as a occurs it is the Canadian law that at the Centre”. central theme. The Centre could invariably prevails. There is a need to promote a deep understanding think about how to build equity between Indigenous of reconciliation from an Indigenous colonized legal traditions (such as Cree law) and Canadian law based on the common law English legal tradition. perspective by creating a journal like an International Should the Centre focus on how to resolve “conflict Journal of Reconciliation for example. of laws” when they arise in this inter-cultural/inter- These are some of the questions and ideas we are societal environment? Should the Centre take on thinking about and asking as we go through the as one of its primary objectives the undertaking of process of rethinking the vision and objectives of research and analysis of these issues? the Centre for the future. We welcome your input This is an area of scholarship that remains largely poorly understood or only minimally reflected in legal education. For example, the Centre could work towards becoming or incorporating an Indigenous Law Institute as an important part of the Centre’s mission. Call to Action 50 of the Truth and Reconciliation Commission states:

and suggestions for the Native Law Centre including whether we should even keep the current name or change it to something more contemporary.

Regardless of the direction we take, the Centre is moving into a new era and we look forward to active engagement and kinship with Indigenous and nonIndigenous peoples in meeting the Indigenous law needs of the future. .

SUMMER 2017 13

COMMENTARY

LET’S TALK —

THE DUTY TO ACCOMMODATE ON THE BASIS OF FAMILY STATUS

O

BETH BILSON, QC || OFFICE OF THE UNIVERSITY SECRETARY

f all the human rights issues that touch the workplace, none has given rise to such extensive and complex jurisprudence in recent years as the duty to accommodate. And among the accommodation issues that may face an employer, few are as thorny or potentially contentious as the duty to accommodate on the basis of family status.

At one time, requests for accommodation based on family status were mainly focused on the status of employees when they returned from maternity leave, but in recent years requests have been made that involve different kinds of caregiving obligations, and employers have found it increasingly difficult to understand the limits on their obligation to accommodate their employees.

Despite indications, like those in a 2012 study of women in the legal profession in Saskatchewan, that women of childbearing age actually work more hours than their male counterparts, concerns linger among legal employers that women (and the accommodation requests are still largely made by women) with caregiving obligations are going to occasion disruption and unreasonable cost. In a profession still often characterized by a “suck it up” ethos, staff and employed lawyers in law firms often find raising a request for accommodation a daunting prospect.

Though human rights tribunals, labour arbitrators and the courts are still not finished filling in the details of the duty to accommodate family status, they have made it clear that the requirement to accommodate to the point of undue hardship places a demanding burden on employers. Not every ballet recital or call for volunteers for the school bus trip will require an employer to stand to attention, but neither will inconvenience or a reluctance to deviate from established corporate patterns be sufficient justification for avoiding a genuine effort to understand and accommodate an employee’s legitimate wish to balance caregiving with professional obligations.

14 BARNOTES

A guide produced by the Canadian Human Rights Commission in 2014 suggested three basic steps for employers to follow in deciding how to meet a request for accommodation.

• Step 1. Talk about it.

It is important for an employer to establish an atmosphere in which a full and honest discussion can take place, a discussion that will permit the employee to lay out the concerns that have led to the request, and also allow the parties to explore fully ways of balancing the caregiving and professional responsibilities of the employee.

• Step 2. Be flexible. Be creative.

It is easy to think that there is something preordained about the way we are used to doing things, but it is important for an employer to be able to let go of working arrangements that may not be necessary, but may be familiar or habitual. Particularly at a time where tasks can often be accomplished by electronic means, it may not be as necessary as we have always assumed for people to be present in a particularly location or to do their work in a particular way.

• Step 3. Follow up and adjust.

A reasonable accommodation for family reasons should be thought of as an organic arrangement.

It should be revisited on occasion to determine whether the predicted balance between caregiving and workplace responsibilities is evident, or whether adjustments need to be made.

The premise behind accommodation on the basis of family status, like other kinds of accommodation, is that employees who fall into one of the categories set out in human rights legislation require a modification in their working arrangements to make the contribution they can make. The return to an employer for addressing family status accommodation in a reasonable way is an employee who is able to be productive and effective because she is confident that her obligations as a caregivier are being met.

COMMENTARY

‘TWAS THE NIGHT BEFORE CHRISTMAS ‒ YOU’RE FIRED EDITION! JANA LINNER || MLT AIKINS LLP ‘

on December 14 claiming that the employee owed the monies to the company. The Court called the company’s actions an “unconscionable decision made shortly before the holiday season” and awarded two extra months’ pay to the employee on top of her twelve-month notice award.

Even if there is no bad faith in the manner of dismissal, December dismissals can lead to a longer notice period simply because fewer employers are actively recruiting in December.

D

ecember dismissals happen for a number of reasons but it is important for employers to understand that the dismissal of an employee in the holiday season may create additional issues in wrongful dismissal cases.

Unless there is a termination clause in the employment contract, the amount of notice or pay-in lieu of notice that a dismissed employee is entitled to will depend on several factors including the employee’s age, position and length of service, among other things. In broad terms, the overall goal in considering these factors is to estimate the time needed by the dismissed employee to find a new, similar job. The question then becomes – does the timing of the dismissal play a role in the calculation of wrongful dismissal damages?

(Hyperlink: 2002 OJ In one case, No. 4011 CanLII), the Court held that it can. In that case, the Ontario employer decided to hold back three weeks of wages when it dismissed an employee

Another consideration is the potential for a loss of a year-end bonus. In determining whether bonus amounts should be included in a damages award, contractual language will be important. In this assessment, Canadian Courts consider what the wrongfully dismissed employee would have otherwise earned had they been given reasonable notice of the termination. If a bonus would have been paid during the notice period, an employee may well be entitled to it.

Overall, December or not, employers should be fair, honest and compassionate in their handling of dismissals. If an employer acts maliciously in firing an employee during the holiday season, this could provide the basis for a bad faith and/or punitive damages award against the employer, over and above any wrongful dismissal damages. As such, employers must be conscious of the timing of their decision, whether it be during any period of industry slowdown or during the holiday season, and the risk that the timing of the dismissal could negatively impact the employee’s search for re-employment.

Merry Christmas to all, and to all a good-night!

WINTER 2017 15

COMMENTARY

EXAMINING THE PROVISION OF LEGAL SERVICES IN SASKATCHEWAN BARBRA BAILEY || LAW SOCIETY OF SASKATCHEWAN

P

rofessional regulation with respect to legal services has been undergoing a great deal of change around the world, prompting the question of who may - or ought to - provide legal services. Ontario, British Columbia, Nova Scotia, Washington State, Utah, and New York State, among others, have allowed alternative providers (meaning, those who are not lawyers) to provide some legal services, each taking a different approach in doing so.

This lack of clarity has implications respecting access to legal services, consumer choice and the effective regulation of legal services. Due to these considerations, the Law Society and the Ministry of Justice have determined to examine possibilities for allowing alternative providers to provide some services in “matters pertaining to the law.”

In Saskatchewan, section 30 of (the “Act”) restricts the provision of legal services to members of the bar and provides that, among other things, no other person may “advise, do or perform any work or service for fee or reward, either directly or indirectly, in matters pertaining to the law.” This restriction is intended to protect the public from the risk posed by persons holding themselves out to be lawyers who are not appropriately trained, insured or regulated. It is the duty of the Law Society to enforce the restriction against unauthorized practice in the public interest.

In 2015, a staff working group consisting of representatives of the Law Society and the Ministry of Justice began holding informal discussions with service providers in Saskatchewan about the current market and gathering information about initiatives taking place in other jurisdictions. In May of 2016, the working group conducted two surveys: one of legal service providers in the province, which included both lawyers and other providers, and one of the public. The surveys were aimed at obtaining information about the way that legal services are provided in the province, and the views of both the public and current legal service providers about the areas where changes may make sense due to factors such as high demand or complexity of task.

The Act provides no guidance as to what constitutes “work or service” or “matters pertaining to the law” for the purposes of section 30. Elsewhere, attempts to define the “practice of law” or “legal services” are varied and often vague. There are many organizations and individuals - including online providers, pro bono legal service clinics, court staff, and paralegals working under the supervision of a lawyer, among others – who have been providing services that might be considered to offend section 30, but pose no real risk to the public. Others have refrained, perhaps unnecessarily, from providing services that would provide a benefit to the public for fear of being prosecuted by the Law Society for unauthorized practice. Section 30 is so broad that it is unclear what services may be provided by those who are not lawyers.

16 BARNOTES

THE WORK COMPLETED SO FAR

Over the course of the fall of 2017, the Working Group has been engaging in consultation with a range of interested stakeholders. These consultations have taken various forms, including one-on-one meetings, presentations to the Task Team, public town hall meetings, focus group meetings and the invitation for any member of the Law Society or of the general public to make written submissions.

Stakeholders involved in these consultations include: members of the Law Society, members of the public, all levels of court and court staff, community organizations, administrative tribunals, Crown corporations, Legal Aid, librarians, court workers and representatives of other regulating bodies - both

COMMENTARY in other jurisdictions and in other self-regulated professions – among many others. At the time of writing, these consultations are on-going.

LEGAL SERVICES TASK TEAM To carry the work of this project forward, the Ministry and Law Society have put together a Task Team to study the issue and make recommendations to the Benchers and the Minister about the appropriate role (if any) of alternative service providers in the provision of legal services. The Task Team is comprised of lawyers, others working in or alongside the legal profession, and members of the public.

The members have a wide variety of experience and knowledge and have volunteered their time to serve on this initiative.

The members of the Legal Services Task Team are: • Gerald Tegart, Regina (Co-Chair) • Mary Ellen Wellsch, Regina (Co-Chair) • Neil Robertson, Regina • Darren Kraushaar, Regina • Jan Whitridge, Regina • Beverly Poitras, Fort Qu’Appelle • Laura Siegler Zerr, Qu’Appelle • Sandi Kerger, Saskatoon • Joy Dobson, Regina • Laura Lacoursiere, Saskatoon • Marlene Rodie, Regina In carrying out its mandate, the Task Team has been asked to consider a wide spectrum of possibilities with respect to the regulation of legal services in Saskatchewan. These possibilities range from whether any types of service or areas of law should be deregulated altogether (for example, providing assistance filling out court forms or navigating court processes) to whether a new class or multiple classes of legal service provider should be established and permitted to provide some services (this is the case in Ontario, where the scope of practice is limited to providing services in matters pertaining to Small Claims Court, traffic offences, summary convictions and administrative tribunals). The Task Team is not required to recommend that changes be made; their final recommendation may be that the status quo is appropriate.

If the Task Team recommends the establishment of any new classes of recognized legal service providers, it will also be asked to make recommendations with

respect to the appropriate scope of practice and regulatory structure for each class.

The Task Team has been charged with keeping the public interest central to its determination throughout its work, striving for an appropriate balance between meeting public need and protecting the public from harm.

NEXT STEPS The Task Team has begun its work by reviewing reading material and consultation results, considering initiatives being undertaken in other jurisdictions, receiving presentations from stakeholders and holding discussions about its mandate. This process is expected to continue through the winter months.

The Task Team’s ultimate task is to make recommendations to be considered by the Benchers of the Law Society and the Minister of Justice.

Depending on the recommendations of the Task Team and the outcomes approved by the Ministry and the Law Society, further work may be required by those organizations before the recommendations can be implemented. For example, considerations regarding appropriate training, admission standards, supervision, etc. will be required if any new classes of service providers are recommended and approved.

Further consultation may be held with stakeholders by the Law Society and the Minister of Justice with respect to any specific proposals, in accordance with the usual process governing regulatory and legislative change.

IN CLOSING New developments in legal service provision are emerging all the time. To ignore this issue would be to risk allowing it to be resolved by the courts, the legislature, or the marketplace in ways that might not consider stakeholder interests and concerns. The Law Society and the Ministry of Justice have agreed that being proactive with respect to this issue will result in the best possible outcome for the Saskatchewan public, the legal profession, and other service providers.

There is still time to have your say about how the regulation of legal services in Saskatchewan should change, if at all. Questions and submissions about this project can be directed to LSTaskTeam@gov.sk.ca.

WINTER 2017 17

T:7.5”

T:10”

Reward your success.

Mercedes-Benz Corporate Sales is proud to support its on-going partnership with all Canadian Bar Association members. Our commitment is to provide the best ownership experience to all CBA members. Save on new Mercedes-Benz, AMG or smart vehicles with our competitive incentives. Reward your drive with our Professional Associations Program and discover additional incentive details at mercedes-benz.ca/cba

© 2016 Mercedes-Benz Canada Inc.

18 BARNOTES

COMMENTARY

2017 UPDATE FROM THE LAW REFORM COMMISSION OF SASKATCHEWAN LEAH HOWIE || LAW REFORM COMMISSION OF SASKATCHEWAN

T

he Law Reform Commission has had a productive year. Following a period of public consultation, the Commission submitted two final reports to the Minister of Justice and Attorney General in April. The Final Report on Reform of The Intestate Succession Act, 1996 recommends several changes to Saskatchewan’s intestacy legislation. The Commission’s recommendations are based on current estate planning practices, and reflect the need to have the intestate estate distribution system be relatively simple, understandable, certain and efficient. The recommendations are as follows: 1. Increase the spousal preferential share from $100,000 to $200,000, or one-half of the estate, whichever is greater. The spouse will continue to receive one-half of the remainder if the intestate had one child, or one-third of the remainder if the intestate had more than one child.

2. Provide that if all the intestate’s children are shared children with the spouse, the spouse will receive the entirety of the estate. In blended families (where the intestate has children born out of a relationship other than with his/her spouse), the spouse will receive the preferential share and the amounts the shared children would be entitled to.

3. Prescribe the amount of the preferential share in regulations.

4. Remove section 20 and set out a clear separation provision for married spouses. Married spouses should be considered separated if they have not been living together for at least two years because of a breakdown of the marital relationship.

5. Remove the doctrine of advancement in section 15.

6. Adopt the parentelic model of distribution of an intestate’s estate, with no limit on the degrees of kinship that can inherit.

7. Specify that the laws of Saskatchewan apply to immovable property in Saskatchewan.

8. Codify the common law principle preventing an individual from benefitting from his or her crime by prescribing that an individual responsible for the death of an intestate is prohibited from inheriting.

9. Consider amending The Dependants’ Relief Act, 1996 to allow stepchildren and informally adopted children to bring an application as a dependant.

10. Consider amending The Family Property Act to allow amounts received under The Intestate Succession Act, 1996 to be considered by the court when making a distribution of family property.

The Final Report on Reform of The Homesteads Act, 1989 considers two issues: (1) whether an attorney acting under a power of attorney should be able to consent to a disposition of the homestead, and (2) whether mines and minerals should be included in the homestead. In the Final Report, the Commission recommends allowing an attorney to consent to a disposition of the homestead in place of a nonowning spouse, subject to the condition that where the attorney is the spouse of the non-owning spouse, the attorney only be able to consent to a disposition of the homestead where the non-owning spouse lacks capacity. The Commission also recommends amending the legislation to specifically exclude mines and minerals from the definition of a homestead.

The Commission also completed an update to its Handbook on Professional Discipline Procedure.

The Handbook was initially published in 2006 as a guide to procedure in disciplinary investigations and hearings conducted by professional associations in Saskatchewan following the “standard model”.

The Commission has several ongoing projects.

The Commission’s commercial tenancies project is

WINTER 2017 19

COMMENTARY a joint project with the Uniform Law Conference of Canada (ULCC). A working group chaired by the Commission’s Director of Research, with representation from several provinces, meets monthly. The working group’s task is to modernize and harmonize commercial tenancies law in Canada with a view to creating a comprehensive framework of statute law that will make it easier to do business in Canada, resulting in direct benefits to Canadians and the economy as a whole. The project is a multiyear undertaking involving extensive consultation with the working group. The final result is expected to be a Uniform Commercial Tenancies Act, to be recommended for adoption in the common law jurisdictions of Canada. The working group is intending to present a draft Uniform Commercial Tenancies Act to the ULCC for approval at its August 2018 meeting in Quebec City.

fax (306-966-5900), or in writing (Room 185, College of Law, 15 Campus Drive, Saskatoon SK S7N 5A6).

In addition, please consult the Commission’s website regarding upcoming consultation events.

Professor Ronald Cuming has completed the third phase of the real property security law project by drafting a proposed Land Charges Act with extensive commentaries. The Land Charges Act codifies and modifies in several respects Saskatchewan’s laws related to mortgages and real property security. The Commission will begin consultations on the proposed Land Charges Act in January.

Electronic copies of all Commission publications are available on the Commission’s website, at lawreformcommission.sk.ca.

The Commission is also currently involved in a project on assisted human reproduction and parentage. The Commission expects to publish a consultation paper on assisted human reproduction and Saskatchewan’s parentage laws by the end of 2017. Consultation activities will commence following publication of the consultation paper.

The Commission has also welcomed two new Commissioners: The Honourable Sanjeev Anand and Darcy McGovern, QC, were appointed to fill vacancies created by the departures of Justice Donald Layh and Susan Amrud, QC. Greg Swanson, Professor Ron Cuming, and Dr. Barbara von Tigerstrom continue to serve as Commissioners. Michael Milani, QC continues to serve as Chair of the Commission.

The Commission relies on public participation to inform its recommendations for reform that are sent to the Minister of Justice and Attorney General.

Comments from members of the Bar on current projects are greatly appreciated. Comments can be sent by email (director@lawreformcommission.sk.ca),

20 BARNOTES

The Commission is always open to receiving proposals for potential law reform projects from members of the Bar. If you have an idea for a new project that falls under the Commission’s legislated duty to “keep under review all the law of the province, including statute law, common law, and judicial decisions, with a view to its systematic development and reform, including the codification, elimination of anomalies, repeal of obsolete and unnecessary enactments, reduction in the number of separate enactments and generally the simplification and modernization of the law”, please get in touch with Leah Howie at director@lawreformcommission.sk.ca.

US AND CROSS-BORDER TAX IS OUR BUSINESS. LET US HELP YOU WITH YOURS. • US citizens in Canada • Cross-border business • Investing in the US • US tax return preparation

Warren Dueck FCPA, FCA, CPA (WA) Lori Lui CPA, CGA Steven Flynn CPA, CA, CPA (WA) Candace Doig CPA, CA, CPA (IL)

CHARTERED PROFESSIONAL ACCOUNTANTS CALGARY • EDMONTON • VANCOUVER • RICHMOND

T: 403.718.0200 • Toll Free: 1.855.448.0200 • wldtax.com

COMMENTARY

YOU CAN’T GOOGLE THAT: CANADIAN COURTS ORDER GOOGLE TO REMOVE SEARCH RESULTS WORLDWIDE NATHAN SCHISSEL || MLT AIKINS LLP KRISTÉL KRIEL || MLT AIKINS LLP

T

he Supreme Court of Canada (SCC) recently considered the question of whether a Canadian court could grant a worldwide injunction against Google in In particular, the SCC considered whether a Canadian court can order Google to globally deindex the websites of a company which, in breach of several Canadian court orders, continued to use those websites to unlawfully sell the intellectual property of another company. In this landmark decision, the SCC confirmed that a Canadian court can, in the right circumstances, do so. This article provides a brief overview of the decision and its implications.

A. BACKGROUND To understand the decision, it is important to briefly review the events surrounding the original commercial dispute which ultimately led to Google’s involvement.

1. The Underlying Action2 Equustek, a small technology company in British Columbia, Canada, manufactures networking devices that allow complex industrial equipment made by different manufacturers to communicate with each other. For many years, Equustek designed and manufactured its products, while another company (“Datalink”) distributed and sold Equustek’s products.

Equustek’s products were marketed as Datalink products, had Datalink logos, and were advertised and sold through Datalink’s numerous websites.

Datalink took orders for Equustek products, ordered products from Equustek, and delivered Equustek products to customers.

The relationship between Equustek and Datalink began to face significant challenges after the sale of Equustek products dramatically declined after 2007.

In 2010, Equustek discovered that while Datalink advertised and accepted orders for Equustek products,

Datalink filled those orders with their own products.

Equustek terminated its relationship with Datalink, and demanded that Datalink delete all references to Equustek and its property from Datalink’s websites.

Unsatisfied with the result, Equustek launched an action against Datalink in 2011 claiming that Datalink re-labelled an Equustek product and passed it off as its own, and used Equustek’s intellectual property to design and manufacture a competing product. As a result of these proceedings, various court orders were granted against Datalink. Datalink not only failed to comply with these orders but incorporated “a myriad of shell corporations in different jurisdictions”, continued to sell the products at issue, reduced prices to attract more customers, and started offering additional services apparently based on Equustek’s intellectual property. The circumstances deteriorated further – Datalink abandoned the court proceedings, an injunction was granted to freeze Datalink’s assets worldwide, its defences were struck, further orders were granted against the company, and a warrant was issued for the arrest of Datalink’s principal.

2. Enter Google, the Global Search Engine By 2012, Datalink operated as a “virtual company” which carried on business through “a complex and ever expanding network of websites”. Datalink carried on business from an “unknown location” and sold products through its websites to customers all over the world. Google, although not a party to the underlying action, came to the attention of Equustek because Google, as a global search engine, included Datalink’s websites in its search results and thus facilitated Datalink’s business. Frustrated, Equustek approached Google in 2012 and requested that it deindex Datalink’s websites. When Google refused, Equustek brought court proceedings seeking an order requiring Google to do so.

WINTER 2017 21

Information is the currency of progress.

Information is the currency of progress.

ISC is the leading provider of registry and information management services for public data and records.

Throughout our history, we’ve excelled at delivering value to industry and and to our ISC is to thegovernment, leading provider of registry information community.

We are committed putting right management services for publictodata and the records. information, the right hands, at the right time.

Throughout in our history, we’ve excelled at delivering value to government, to industry and to our Because we understand it’s not just the information community.

We are committed to putting the right that matters –init’s information cantime. do information, thewhat rightthat hands, at the right for you.

Because we understand it’s not just the information

isc.ca that matters – it’s what that information can do for you.

22 BARNOTES

COMMENTARY

a) British Columbia Supreme Court

By January 2013, Google had voluntarily deindexed 345 specific webpages associated with Datalink. However, because Google refused to de-index all of Datalink websites, Datalink simply moved the objectionable content to new pages within its websites, circumventing the court orders and turning Equustek’s life into a game of “Whack-a-Mole”. Further, because Google limited its de-indexing to searches conducted on Google’s Canadian website, consumers around the world (including in Canada) could still access Datalink websites through other Google websites.

As a result, Equustek brought an application to seek an interlocutory injunction to enjoin Google from displaying any part of Datalink’s websites on any of its search results worldwide.

granted to compel Google to de-index Datalink websites worldwide to preserve the Court’s process and to ensure that Datalink could not continue to flout the Court’s orders.

The application, which was brought by Equustek to ensure that its interests were protected pending completion of the underlying action, was opposed

by Google on a number of grounds. Specifically, Google argued that, because it only had a virtual presence in British Columbia, the Court did not have jurisdiction to grant the injunction against the company. Further, even if the Court did have jurisdiction, Google maintained that the application could not be granted because it would amount to a worldwide order that would be incapable of being enforced. Finally, Google argued that granting such an injunction would constitute an unwarranted intrusion into Google’s lawful business activities. The Court rejected these arguments and determined that applicable legislation3 provided the Court with territorial competence to hear the application. The Court also pointed to the fact that the proposed injunction application related to the enforcement of intellectual property rights in British Columbia and to business that Google was carrying on in that Province. Despite Google’s arguments that it had a stronger connection to California (and that a California court was in a much better position to enforce this type of interlocutory order), the Court held that British Columbia was still an appropriate forum to grant an injunction against a non-party resident in a foreign jurisdiction in appropriate circumstances. As a result, the Court concluded that an interim injunction should be

After a review of the history and applicable law, the Court dismissed the appeal. In reaching its conclusions, the Court emphasized that the facts on which the injunction application was based have a strong connection to British Columbia, and that Google’s services are substantially connected to the substance of the action. With respect to whether the Court had jurisdiction over Google, the Court agreed with the British Columbia Supreme Court that key parts of Google’s business were carried on in British Columbia (e.g. advertising and gathering information through web crawler software).

In response to Google’s argument that the effect of the injunction was that Google could be subjected to restrictive orders from courts in all parts of the world, each concerned with its own domestic law, the Court confirmed that the worldwide nature of Google’s business indeed subjected it to this possibility, but noted that the “threat of multi-jurisdictional control over Google’s operations” was “overstated”. In particular, the Court noted that although courts must exercise considerable restraint in granting remedies that have international ramifications, the granting of injunctive relief against third parties as an ancillary means of preserving rights is a well-established function of the courts in the appropriate circumstances. The Court concluded that there was neither a jurisdictional nor practical bar to the granting of an injunction, and that the test for the granting of the injunction

b) British Columbia Court of Appeal Google sought and was granted leave to appeal the decision to the British Columbia Court of Appeal on the basis that the injunction ought not to have been granted. In particular, Google argued that the application did not have a sufficient connection to British Columbia, that the injunction represented an inappropriate burden on an innocent non-party to the litigation, and that the extraterritorial reach of the injunction was inappropriate and in violation of principles of comity and freedom of speech.

WINTER 2017 23

COMMENTARY

was met. Finally, the Court emphasized that the interlocutory order at issue was both limited in time and subject to variation by the Court. c) Supreme Court of Canada Google was granted leave to appeal to the SCC in early 2016. The appeal was heard by nine Justices and dismissed by a majority of seven.

The written decision of the SCC includes a number of important findings by the majority that ultimately led to their decision to dismiss the appeal. Specifically, the majority of the SCC held that: •

an interlocutory injunction is a discretionary order, is entitled to a high degree of deference, and is both time-limited and open to variation by the courts;

•

the test for an interlocutory injunction was met on the facts of the case (i.e., there was a serious issue to be tried; irreparable harm would result if the injunction was not granted; and the balance of convenience favoured granting the injunction);

• an interlocutory injunction can be granted against a non-party if it is just and convenient in the circumstances; • a court with jurisdiction can grant an interlocutory injunction enjoining conduct anywhere in the world where it is necessary to ensure the injunction’s effectiveness; • Google’s argument that a global injunction violates international comity was “theoretical”; • freedom of expression values were not engaged as freedom of expression did not require the facilitation of the unlawful sale of goods; • Google would not be inconvenienced in any material way or incur any significant expense in complying with the injunction; and •

Google was the determinative player in allowing the harm to Equustek to continue (in that it facilitated customers finding Datalink’s websites), and the order was the only way to preserve Equustek’s interests

24 BARNOTES

pending the resolution of the underlying action.

For these reasons, the SCC dismissed Google’s appeal and upheld the worldwide interlocutory injunction against Google.

Two Justices dissented, noting that while the lower court had jurisdiction to issue the injunctive order against Google, it should have refrained from doing so given that a number of factors in the case strongly favoured judicial restraint (such as the final effect of the order, given the circumstances).

B. Implications of the Decision The decision of the SCC is a novel one with potentially far-reaching consequences for many different types of businesses that have a virtual or online presence in Canada. In particular an entity that only carries on business online in Canada, can still be subject to the jurisdiction of Canadian courts (even if that entity is located outside of Canada), and can be subject to an order by a Canadian court that is intended to have world-wide effect. The decision may provide welcome legal tools and remedies for intellectual property owners to seek injunctive relief to protect their rights worldwide. It also supports the potential for using such tools and remedies to address other illegal activities on the internet.

It is important to note that while the dispute between Equustek and Datalink involved intellectual property issues between those two companies, the findings from the SCC decision itself are not limited to applications for interlocutory relief or other legal remedies where intellectual property issues are involved. Conversely, the implications of the decision will impact a broad range of persons and entities that are doing business in a number of industry sectors.

Despite the foregoing, in assessing the actual implications of the SCC decision, it is important to observe that the findings of the majority were still rendered in the context of a very specific set of facts and circumstances. For example, Datalink’s activities involved the sale of another company’s intellectual property and Datalink was in contempt of court by failing to comply with a number of court orders and abandoning the court proceedings. Such continued and clearly illegal activities may not be present in

COMMENTARY

all cases. Datalink also evolved into a “virtual” and “clandestine” company, which sold products out of an unknown location, via a multitude of websites, and to customers around the world. As such, it was “nimble” enough to circumvent Google’s voluntary deindexing of pages. In other cases, Google’s voluntary de-indexing of websites in limited locations may have been sufficient. Additionally, Google’s role was somewhat unique given its corporate structure, business model, significant stake in the worldwide internet search engine market, and its ability to deindex sites with relatively minimal effort and cost.

It is also important to note that the decision involved an interim interlocutory order which is discretionary, entitled to a high degree of deference, limited by time, and open to variation by the courts. As such, the same results may not be reached with respect to other types of orders. Finally, while Canadian law contains many similarities to laws in other jurisdictions, it is still unique, and the same results may not be reached by courts in other jurisdictions for a variety of reasons.

Consequently, while the decision of the SCC is a novel one with potentially far-reaching consequences, the practical impact of the decision may be very different for companies that have a more limited virtual or online business presence in Canada. In addition, Canadian and other courts may continue to develop further limitations on the potential consequences of the decision. For example, Google has already challenged the enforcement of the decision in at least one other jurisdiction (California). The result of that challenge may be influential in other jurisdictions as well.

For these reasons, we will continue to watch this developing area of the law with significant interest.

Note: This article is of a general nature only and is not intended to be relied upon or taken as legal advice or opinion.

Readers should consult a legal professional for specific advice in any particular situation.

2017 SCC 34.

2012 BCSC 1490; 2013 BCSC 304; 2013 BCSC 783; 2013 BCSC 882; 2013 BCSC 1063; 2013 BCSC 1820; 2013 BCSC 2135; 2014 BCSC 454; 2014 BCCA 295; 2014 BCCA 448; 2015 BCCA 265; 2016 BCCA 190.

3 The Court Jurisdiction and Proceedings Transfer Act (British Columbia).

1 2

WINTER 2017 25

823 - 50th Street East Saskatoon, SK, S7K 3Y5

contact@ashlow.com

26 BARNOTES

PRO BONO SPOTLIGHT

PASSING THE TORCH DAVID THERA, QC || MCKERCHER LLP

I

t is bittersweet to say goodbye to Pro Bono Law Saskatchewan’s fearless leader and Executive Director, Kara-Dawn Jordan. Kara-Dawn joined PBLS in 2010, inheriting the organization after a year and a half of operations. Throughout Kara-Dawn’s time at PBLS she has grown the organization from 3 free legal clinics to 12, from 861 calls to the office to over 3,500 and from 192 volunteer lawyers to 354.

Kara-Dawn has been a friendly, patient and understanding leader of the organization for seven years. She has an unrelenting passion to assist our clients and has always gone above and beyond the call of duty to ensure that they receive the best legal services available. Despite Kara-Dawn’s year of call and title, Kara-Dawn lead by example and exemplified the phrase “actions speak louder than words”. KaraDawn volunteered at the Regina Free Legal Clinic on Saturday mornings, she drafted and stuffed her own envelopes, and would frequently interrupt her work flow to answer a cold call to explain the court process for the hundredth time. She was on the front line daily serving the Saskatchewan public.

Kara-Dawn has touched many people’s lives throughout her career, not only the countless clients whose lives are improved by their interactions, but also her co-workers and colleagues. Below are some reflections of Kara-Dawn’s work throughout her years at PBLS: I have known Kara-Dawn since she took over for Pam for the Free Legal Clinic. Although I do not have a specific amusing story between us, I do remember that she has always been warm and welcoming with an infectious smile whenever she was at the clinic.

She was always there to assist with any questions or

concerns a lawyer may have had. You could tell she truly loved giving back to the community through Pro Bono Sask. She will be missed but I want to wish her the best in her future endeavors.

My overwhelming memories of Kara-Dawn are of her singular dedication and work ethic when it came to all things PBLS! I couldn’t begin to pick out one single memory of that from the years that I worked with her, but would like to highlight one particular event that she was able to pull off – not entirely single-handedly, but certainly with an extraordinary degree of effort on her part – that being the 2014 National Pro Bono Conference in Regina. This was a major National event that many thought could not be successfully held in Regina; Kara-Dawn and her small team not only ensured that the event was successful, but did so with commitment, creativity and style. It was a credit to PBLS, and to the entire Saskatchewan Judiciary and Bar. I was always proud to be associated with PBLS, but rarely more so than during that event. PBLS has been incredibly wellserved by Kara-Dawn and her replacement has big shoes to fill!

I had the pleasure of working with Kara-Dawn as a member of the Board of Directors with Pro Bono Law Saskatchewan when I was in Correctional and Justice services with the Salvation Army in Regina. It was so encouraging to work with someone who had such a passion for the program and to see it expand

WINTER 2017 27

PRO BONO SPOTLIGHT

and grow. Access to justice was the real motive for her passion and it certainly shone through in all the initiatives that she was involved in. She was a true inspiration to me in this regard, “people need help when it comes to accessing the justice system”. KaraDawn, thank you for all you have done.

At the same time, we are very happy to announce that Carly Romanow has been appointed as the new Executive Director for PBLS. Carly graduated from the University of Saskatchewan, College of Law in 2014 and was called to the bar in 2015. Carly articled and practiced with Miller Thomson LLP until July of 2016 when she joined PBLS as Programs Director. She was an active participant in pro bono services throughout her time at the College of Law Access to justice would not be the same in and during her time in private practice. Carly looks Saskatchewan without the tireless and thankless work forward to continuing and growing the organization that Kara-Dawn has dedicated herself to at PBLS. We to better serve the needs of the Saskatchewan public are forever thankful for her and wish her the best in in accessing the justice system. her future endeavors as Policy Counsel with the Law Society of Saskatchewan.

COURT OFAPPEAL FOR SASKATCHEWAN THE COURT OF APPEAL WiLL mARK iTS CENTENARy iN 2018.

THiS miLESTONE WiLL bE CELEbRATEd WiTH EvENTS iNCLUdiNg A bANqUET iN REgiNA ON FRidAy, mARCH 2, 2018. CHiEF JUSTiCE bEvERLEy mCLACHLiN WiLL bE iN ATTENdANCE. THERE WiLLALSO bE A bOOK LAUNCH iN SASKATOON iN THE FALL OF 2018 FOR The FirsT 100 Years, A HiSTORy OF THE COURT.

SAvE thE dAtE now foR MARch 2, 2018

100 YEARS 1918-2018

28 BARNOTES

FROM THE BENCH

JUDGING IN THE NORTH JUDGE BOB LANE || PROVINCIAL COURT OF SASKATCHEWAN

I

t’s January 7th, and I arrive at the La Ronge Airport in anticipation of a flight to Deschambault Lake, a remote community in North Eastern Saskatchewan. It is Docket day.

Mercifully, it is -29 so we will fly. Department of Justice Policy states that no participant in the Justice system can be required to board a plane if the temperature is -30 or colder.

I’ve always understood the reason behind the policy is two-fold: firstly that mechanical parts on planes don’t always work properly in extreme cold, and secondly, that if there is a forced landing on a frozen lake, the occupants of the plane will survive the cold long enough for help to arrive.

Typically, the travellers include a Provincial Court Judge, a Judicial Officer, 1 or more Defence lawyers, 1 Crown, and one or more Probation Officers.

Court in Descshambault Lake is held in the local Band Counsel Chambers, a very nice facility. The people of the community are very welcoming. We have been invited from time to time to share in community meals consisting of Fish, Stew, Bannock etc. This happens in most communities we travel to.

The workload for all court participants can be overwhelming, but case by case we get through it.

As on this day, we fly on a ski-plane and land on the lake, we must finish early enough to be able to take off well before dark. On our circuits, most points have landing strips, but in a few, it’s a Twin Otter on either skis or pontoons depending on the season.

And during freeze-up and thaw, its Helicopter.

I’ve been flying to remote Saskatchewan Communities since 1980, first as a Defence Lawyer, then as a Crown Prosecutor, and now as a Provincial Court Judge.

From time to time, the heat source in a court room will fail. I have sat in court wearing ski-pants and a parka as recently as March, 2015. So long as the court participants can continue to write on their pads of paper (in other words, the ink in their pens has not frozen), we soldier on.

I look back to the late 1990’s when Provincial Court Judge Inez Cardinal, was a Crown Prosecutor, and I was a Defence Lawyer, we would travel to Stony Rapids and Fond du Lac for a 3-day trip. We’d fight it out all day long in court, then get up at 6:00am the next morning to meet to go fishing in the

WINTER 2017 29

FROM THE BENCH

Fond du Lac River. This is one of the many benefits of having a collegial bar. I can say that on our current court circuits, in North and North Eastern Saskatchewan, that collegiality continues to this day.

And that mutual respect is one of the reasons that the system functions really very well in some challenging circumstances.

I have also been privileged to have been appointed a Deputy Territorial Judge for the Northwest Territories. Chief Judge Christine Gagnon has very kindly had me judging in the Northwest Territories on 4 occasions for 1 week at a time. Twice on the Inuvik/Tuktoyaktuk circuit and twice on the Bechocko Circuit. Tuktoyaktuk is situated on the shores of the Arctic Ocean. This photo was taken in March, 2017 on the ice road between Tuktoyaktuk and Inuvik (which has since been replaced by a land road). The sign is very much a “road sign” one would see on the prairies or elsewhere in Canada announcing your location.

I was quite taken aback by the massive size of our great country. I erroneously assumed that Inuvik would be between 200 and 300 kms north of Yellowknife (which of course is the capitol of the NWT). WRONG!!!!!! The flight distance is 1102 kms. And Tuktoyaktuk is another 125 kms north of Inuvik.

Without exception, the people I’ve met and dealt with, whether in the Northwest Territories or in remote Northern Saskatchewan are warm and engaging. In the end, we do hope our work makes a difference.

I have since transferred to Prince Albert Provincial Court but cherish my memories of many years of flying over this great province and country of ours.

30 BARNOTES

POSTCARD FROM A LAWYER

DELAYING THE RITE OF PASSAGE JORDAN BOLT || FOX WAKEFIELD & SHOLTER

T

he norm for many law students is to go on one last trip before they start their articles. I did not follow this trend, rather I waited until I had completed my articles and had a few months under my belt as a bona fide lawyer. There were several reasons for delaying this rite of passage. Firstly, I did not want to spend money on an adventure that I did not really have. Secondly, although finishing law school is an accomplishment, I felt I could delay celebration of accomplishment until I had completed my Articles. Thirdly, and perhaps most importantly, I wanted to go to Munich to experience Oktoberfest, which means I had to wait until September to do so.

Prior to Oktoberfest, my European vacation started in the Netherlands. I had been meaning to return to the Netherlands for many years as this is my ancestral homeland on my father’s side and my last visit had been more than a decade prior in 2005. I arrived in the Netherlands with no plans other than to visit with my Oma (Grandma), Aunts, Uncles, and cousins. Often when people go on vacation, they plan out every second of their trip with sightseeing, excursions, and what

not. I am not excluded from this group as I strive to maximize my experiences while in foreign lands, but on the other hand it is also nice to simply relax and spend time in conversation with family, especially some which you haven’t spoken to in person for many years.

Next to visiting family, the highlight for a person of Dutch heritage visiting the Netherlands is the food. Many food items of Dutch origin can be found in Canada, but the best place to enjoy these items is directly from the source. I was more than happy to indulge in frikandel speciaal, which is deep fried sausage covered in chopped raw onion and regularly topped with curry ketchup, mayonniase, or both! Second only to frikandel for popularity, is the kroket, which are comprised of a meat ragout covered in breadcrumbs and deep fried. These snacks are often served with a side mustard.

The final food item of note is kapsalon, which is a rather new invention, and certainly not one I had tried or heard of before. The word kapsalon is actually a Dutch term meaning hairdressing salon.

This delicacy acquired its name as it was a hairdresser who created the dish by combining all of his

favourite ingredients into one dish, which is comprised of layers of fries, donair or shawarma meat, Gouda cheese, and topped with a layer of lettuce. Again, this dish is often drizzled with curry ketchup, mayonnaise, or a combination of both.

The next leg of my trip had me taking a train through the German countryside to meet up in Munich with former University of Saskatchewan College of Law classmates Arran Ferguson, Herman Jhangri, and Amjad Murabit. Oktoberfest is quite the spectacle. From first entering the grounds it appears to be quite similar to a Canadian fair, but

WINTER 2017 31

POSTCARD FROM A LAWYER

that notion fades once you realize there are fourteen large wooden tents that can house thousands of people each and once you enter a tent you definitely realize this is not your typical carnival.

We were in Munich for three days and sampled a different Oktoberfest tent each day. Inside a tent there are hundreds of tables that can seat up to twenty people or more. You have to go early in the day, usually before noon, if you want to secure yourself a table for the rest of the day. Different tents have different themes and are decorated accordingly, but there are several commonalities across the tents: the traditional outfits, the lederhosen for men and dirndls for women, and of course the characteristic one litre beer mugs.

The tents we attended each had their own band that would play both popular English songs, such as John Denver’s “Take Me Home, Country Roads”, along with traditional German songs that I could not understand, other

32 BARNOTES

than the classic Oktoberfest jingle known as “Ein Prosit”, which is essentially a song to toast and cheers with your fellow table mates. Sitting at a table in an Oktoberfest tent is a great way to meet people from all over the world. We met people from Australia, Italy, the Netherlands, and obviously Germany - but we also bumped into people from our own backyard. The most unexpected person we connected with was one of our former law professors, Brent Cotter.

Our next destination was Barcelona. Unbeknownst to us, as we had just spent the better part of a weekend in various Oktoberfest tents, Catalonia, the region in Spain where Barcelona is located, voted in a controversial referendum that very same weekend to secede from Spain.

We arrived to find many locals dressed in the Catalonian colours of blue, yellow and red, protesting the Spanish government and the federal police force’s response to how the referendum unfolded.

Our first full day in Barcelona was

characterized by further protests as several labour unions called for workers to go on full or partial days of strike. Many businesses were closed and most notably so was the metro for all but a couple hours near the end of the day. The regional strife did not deter us from travelling on foot to the typical tourist spots such as Sagrada Familia, Las Ramblas, and the Catedral de Barcelona.

It was expected that the Catalan government would issue a formal declaration of independence within days after the referendum, but this declaration was not passed

by Catalonia’s Parliament until October 27, 2017. The Spanish Government has responded by imposing direct rule over the region and firing Catalonia’s regional government. To make matters more interesting, there have also been sizeable rallies in Barcelona with thousands in attendance who want Catalonia to stay unified with Spain. This conflict may take months to resolve, and it is a situation I will be watching closely as I feel more closely linked to it as I was able to witness a portion of this conflict first hand.

The final country we visited on our European tour was Portugal.

We spent a few days in the city of Porto, which is a wonderful place to visit. The terrain in Porto is very hilly, though at the same time is a very walkable city and easy to explore. Interestingly, Porto shares a moniker with Saskatoon as both are known as “The City of Bridges”. The oldest

POSTCARD FROM A LAWYER

bridge in Porto, the Maria Pia Bridge, was designed

by Gustave Eiffel, most well known for the Parisian tower named after him. From Porto we found our way to Lisbon which would be our final destination.

We did not have a lot of time to explore Lisbon, but we did have enough time to experience two places.

The first being one of the main tourist attractions of Lisbon, the Sao Jorge Castle. This is a beautiful castle that is only outmatched by the beauty of the view that overlooks much of the city and the port. Our second Lisbon destination came as a recommendation from another former law school classmate, Galen Richardson, who confidently suggested that if we skip his recommendation that we will regret it for the rest of our lives. This recommendation was for an indoor food market called “Time Out Market� and it was truly amazing. The market is comprised of a couple dozen restaurants that all serve delectable food which ranges from traditional Portuguese, pizza, steaks, hamburgers, seafood, and even krokets.

Everything I sampled was delicious and I must echo the recommendation that I received, that if you find yourself in Lisbon you must go to this market or you will truly regret it.

WINTER 2017 33

NATIONAL NEWS

NEW! INVESTMENT PROGRAM FOR LAWYERS

T

he enhanced Lawyers Financial Investment Program (LFIP) launched November 1st is designed to help lawyers, their families and staff accumulate wealth pre-retirement and create an income once in retirement. This relaunch comes less than a year after the amalgamation of CBIA and CBA Financial (CBAF) and the introduction of the Lawyers Financial brand.

There is a 200 per cent increase in number of investment funds available from top portfolio managers including Vanguard, Trimark, Fidelity, TD and more. Clients have been asking for socially responsible and low-volatility funds, as well as real estate funds — and we listened. These, and additional new fund categories are now available.

For the first time, RRIFs, LIFs and non-registered cash account are available. While the number of funds is increasing, the already low investment management fees (IMFs) are decreasing for many funds.

In addition to low IMFs, Lawyers Financial has a loyalty program. For accounts between $50,000 and $500,000, fees will be reduced by 0.10%. Accounts of $500,000 or more, will see a discount of 0.20%. And, CBA members save an additional 0.40% on top of these discounts. The savings can add up quickly and lower fees can be a key contributor to the overall wealth of your portfolio.

The new LFIP is also leading the way in fee transparency. All costs will be fully itemized and, for non-registered accounts, many of those fees may be tax deductible.

The relaunch also provides clients with access to the latest technology when it comes to managing their investment portfolio. The advanced technology includes a powerful retirement income calculator and the ability to rebalance your portfolio with the click of a mouse.

LFIP launches with a new fund provider, GreatWest Life, and Morneau Shepell is the program administrator.

Lawyers Financial is solely committed to helping lawyers, their families and their employees grow and maintain financial security. That’s all we do.

Learn more about the new LFIP by visiting www.lawyersfinancial.ca/investments.

When they’re gone, they’re gone...

LEGAL DIRECTORY 2017/2018

Legal Directories are here!

If you missed ordering your copy order today.

Available while supplies last.

www.cbasask.org

34 BARNOTES

CALENDAR OF EVENTS December 15, 2017 December 15, 2017 January 24, 2018 February 1, 2018 February 1-2, 2018 April 14, 2018 April 16, 2018 June 13, 2018 June 14, 2018 (TBC)

NOMINATION DEADLINE: BRANCH TREASURER NOMINATION DEADLINE: ELECTED MEMBERS OF COUNCIL Mock Interviews at College of Law Council MID-WINTER MEETING Law Day Mock Trial NOMINATION DEADLINE: COMMUNITY SERVICE AWARD President’s Dinner ANNUAL MEETING

Saskatoon Regina Regina Saskatoon Saskatoon Saskatoon

Don’t forget to register for Sections! Sign up online at www.cbasask.org Section activity begins mid-late September or early October and continues until May 2018.

Remember Sections qualify as an “Accredited CPD Activity” under the Law Society’s CPD Policy! For more information on the Policy check out http://www.lawsociety.sk.ca/continuing-professional-development/cpd-program/policy.aspx

MOVED OFFICES OR CHANGED JOBS?

LET US KNOW! We do our best to keep our database up to date throughout the year. If you’ve moved offices or changed jobs, drop us a line to let us know! All changes can be sent to: info@cbasask.org.

ADVERTISER INDEX

Ashmeade & Low Investigations .................. 26 ChildView ........................................................... 33 Cirque de CLASSIC .............................................6 Court of Appeal for Saskatchewan............... 28 DivorceMate .........................................................3 Dueck & Co. LLP .............................................. 20 Globe Printers................................................... 35 Graycon I.T. ....................................................... 36 ISC ....................................................................... 22 Lawyers Financial ................................................4 Mercedes Benz ................................................ 18 OUT Saskatoon ................................................ 25 Sandra Schmirler Foundation..........................8

217 Jessop Avenue • Saskatoon SK S7N 1Y3 p: 306.955.3373 • f: 306.955.3064 www.globeprinters.com

Tom Jeffries

c: 306.717.4006 e: tom@globesask.com

WINTER 2017 35

GET AHEAD OF THE CURVE.

Falling behind the curve with your technology?

Follow these three steps to stress-free I.T.

1

Book your no-cost Technology Business Plan below

2

Meet with a Graycon expert to discuss your business goals

3

Recieve your 12-month, business-aligned plan (no strings)

Our no-cost Technology Business Plan outlines the people, processes and technology needed to help your business thrive now – and in the future.

BOOK NOW AT GRAYCON.COM/TECHNOLOGY-BUSINESS-PLAN

1.844.745.8122 • GRAYCON.COM | CALGARY

36 BARNOTES

TORONTO VANCOUVER

EDMONTON

SASKATOON

REGINA

KELOWNA

KAMLOOPS

RED DEER