BarNotes Winter 2020

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VOL. 34.2

INSIDE: Honouring Chief Judge Plemel COVID Impacts Lessons from the Plague

2021 VIRTUAL MID-WINTER MEETING "Stay Warm – Stay Informed" January 26 - 28, 2021 – Program Enclosed


The Canadian Bar Association Saskatchewan Branch 305, 135-21st Street East Saskatoon SK S7K 0B4

BARNOTES Editorial Board




Office of Residential Tenancies — The Impact of Covid-19


Using Innovation to Build Opportunities


Challenges of Working from Home


Law and Covid-19: A Rural Perspective


Tackling Technology


Meeting Legal Information Needs in the Time of Covid-19


Editor's Notes


President's Message


SPECIAL FEATURE: Honouring Chief Judge James Plemel


Lessons From the Plague


Kwayeskastasowin "Setting Things Right"


Students' Perspective: Kwayeskastasowin


Mid-Winter Meeting Brochure


Book Review: Truth Be Told: My Journey Through Life and The Law by Beverly McLachlin 2 BARNOTES

CLYDE DROVER Saskatoon Housing Authority NICOLE HAMM Olive Waller Zinkham Waller LLP LEAH HOWIE Law Reform Commission of Saskatchewan TONYA LAMBERT Koskie Law FOLUKE LAOSEBIKAN, PH.D F L K Law Firm CHRISTINE LIBNER Stevenson Hood Beaubier Thornton LLP AMJAD MURABIT Saskatchewan Human Rights Commission JAMES STEELE Robertson Stromberg LLP


Profile of Judge Michelle R. Brass

MONTEEN DENT Executive Director CBA Saskatchewan LAYOUT & DESIGN Katrina Forgrave Graphic Designer


Challenges and Benefits of Online Learning

BarNotes is a publication of CBA Saskatchewan which is published 2 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.

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2020 has been a rough year. The U.S. election is over and the votes are being counted. While I remain hopeful that human rights and equality will reign victorious at the end of the day, I am simultaneously feeling despair at the large number of votes cast in support of white supremacy, misogyny and oppression. It is a solid reminder of how we still have a long way to go to eliminate racism and all forms of inequality in our communities. COVID has given me the opportunity to examine my life and actions in a more informed and critical way than ever before. The government is advising everyone to limit our personal contacts, which has led me to ask myself. “What I am allowing into my “bubble”?” Who and what am I surrounding myself with? What messages and influences are living in my bubble with me? One of the things that I most enjoy about my role as editor of BarNotes is how much I learn from the authors of the articles. Prior to becoming Editor I rarely read BarNotes coverto-cover; now this is something that I am not only required to do, but that I take pleasure in. I am especially proud of this Winter issue, as the articles herein discuss important points regarding issues of oppression, racism, and the various ways lawyers can use technology to provide legal services to our clients and to make access to justice more accessible to marginalized peoples.

There is a special feature honouring Chief Judge Plemel, as well as numerous articles regarding the impacts of COVID, and the emerging use of technology, on different areas of legal practice, including: The Office of Residential Tenancies, College of Law, rural practice, and how PLEA is helping those suffering from domestic violence and sexual assault. If you are looking for a book to read while in your bubble, there is also a book review of The Right Honourable Beverley McLachlin’s biography. While the world is protesting the unjust treatment of Black and Indigenous peoples, we too need to do our part to use every tool available to bring about meaningful, impactful and lasting institutional and social change in our communities. As you will read in this Winter issue, the College of Law now requires all first-year students to complete the Indigenous Legal Studies course called Kwayeskastasowin, which is Cree for Setting Things Right. This is something that I feel is overdue and would have benefited me greatly.

If you are no longer a law student, then you can enroll in ‘The PATH: Your Journey Through Indigenous Canada’ as part of the Truth and Reconciliation calls to action being offered through the CBA (see cba. org/ThePath). You can also check out details of the CBASK 2020 Virtual Mid-Winter whose theme “Stay Warm – Stay Informed” has particular significance this year. There are also many other webinars, conferences, and resources being offered virtually by the CBA (see By the time you are reading this the holidays will be upon us, the U.S. election will be over, and 2021 will be on the horizon. Let us all keep in mind that change does not miraculously come about because of a few marches or the sharing of anti-racist and antisexist posts on social media. Each and every one of us must stand up for injustice and inequality when we see it, address it and challenge it in our communities, workplaces, personal lives and in our bubbles. It is going to be some time before the bubble bursts.



Join over 30 Speciality Groups or Sections • Learn the most current and valuable skills to enhance your practice • Gain a competitive advantage • Build your network Join a Zoom Section Meeting anywhere in the Province FREE. (you must be a CBA member to access Sections) Section Registration – FREE Section Zoom Meetings – FREE Visit:






the law school being virtual. I recently Congratulations to Chief Judge Plemel had the opportunity to do a video call on his upcoming retirement (see with many first-year students and they article p. 6). Always a big supporter of were legitimately concerned about CBASK, he has been a hard working, their ability to make connections with knowledgeable and fair Judge while The relaunch alsofirms provides clients to the fellow students, law and the legal with also access being very kind and generous with latest technology when it comes managing their community. The Branch is helping with to his time. Saskatchewan has been very investment advanced technology these issues byportfolio. providing The mentoring fortunate to have had his service in the programs students, hosting a virtual justice system. and We wish you all the best includes for a powerful retirement income calculator CBASK Law firm showcase and inviting in your the ability to rebalance your portfolio withnew thechapter! click students to join section meetings at no of a mouse. I would like to wish you and yours a charge. great holiday season. These uncertain LFIP launches with a new fund provider, GreatIWest also want to remind you that your times will perhaps Life, and Morneau Shepell is the program make this one even CBA membership administrator. gives you access more special. While many of us may be to programs and services from all unable to spend time with loved ones, it Lawyers Financial is solely committed to helping across Canada including professional may give us the opportunity to reflect lawyers, their families and their employees andour relationships and development webinars, national on our grow lives, and maintain financial That’s allfeel wegratitude do. conferences, sections, security. our Mid-Winter for what we have and our meeting and CBA Wellness programs. ability to help others. Learn more about the new LFIP by visiting And more and more resources are being Stay Safe and Take Care. added all the time!


enhanced Lawyers Financial Investment 306-775-6432 gram (LFIP) launched November 1st is igned to help lawyers, their and families and 2020 is winding down, it continues umulate wealth andCovid-19 create to be a pre-retirement very unique year. The e once in retirement. comes pandemic hasThis addedrelaunch social distancing, and curveofflattening to a year afterself-isolation the amalgamation CBIA and our everyday vocabulary. Weof have ancial (CBAF) and the introduction the adapted to working and socializing Financial brand. in alternate ways. Mass protests are a 200 peroccurring cent increase number of across the in globe demanding nt funds racial available top portfolio justice. from These movements have includingsparked Vanguard, Trimark, Fidelity, conversations, understanding and have change. Our asking world feels it is in more. Clients been forlike socially a state of fluxfunds, and growth. ble and low-volatility as well as real ds — and we listened. These, and additional This current pandemic environment categorieshas are now available. created unique opportunities. In our Branch, social distancingcash has rst time, RRIFs, LIFs and non-registered altered the way that the CBA is able re available. While the number of funds is to provide many member services. g, the already low investment management Section for meetings has moved online s) are decreasing many funds. providing the opportunity for lawyers on to low all IMFs, Financial has in a acrossLawyers the province to take part ogram. Forthese accounts between $50,000 and great educational / networking opportunities. , fees will be reduced by 0.10%. Accounts of or more, will see a discount of 0.20%. And, The annual Mid-winter meeting will mbers savealso anbeadditional 0.40% on top of virtual. Members can log in from counts. Thewherever savingsthey canare addand upparticipate. quickly and The es can be apresenters key contributor theextremely overall and topicstolook your portfolio. interesting and the format will ensure are actively engaged! w LFIP is that alsoyouleading the way in Our fee President’s Forum Speaker will be CBA ncy. All costs will be fully itemized and, for National President Bradley Regehr. A stered accounts, many of those fees may be member of the Peter Ballantyne Cree tible. Nation in Saskatchewan, he is the first Indigenous person to hold this position.

The Branch continues our engagement with the College of Law. This is always important, but it is particularly important this year with

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WINTER 2020 5



Steady, committed, principled, hard-working. Those are words that are offered consistently when colleagues and contemporaries are asked about Chief Judge James Plemel. And, of course, wise and distinguished; and kind, unfailingly kind.

“I have a great deal of respect for Chief Judge Plemel,” says Chief Justice Robert Richards. “He has discharged his responsibilities in a way that has revealed both his high principles and his deep understanding of the onthe-ground operation of his Court. The Province of Saskatchewan owes him a debt of gratitude for all that he has accomplished during his tour of duty. Working with Jim has been a genuine pleasure.” Chief Judge Plemel’s quiet, competent leadership might have been best on display early in his tenure as he responded to forest fires that threatened court points across the North and again this past year, as he helped the Provincial Court navigate through the impossibly murky waters of the early days of COVID-19. It surprised no-one that he approached the tasks in a collaborative and considered manner, assembling an internal team, seeking best practices and ideas from his judicial colleagues across the province, and inviting participation and feedback from the Bar and other affected parties. It perfectly illustrated the Chief’s style. Plemel’s roots are in a small town whose streets Google hasn’t even mapped yet, St. Gregor, Saskatchewan, just east of Humboldt. He attended primary school there, and high school at St. Peter’s College in Muenster, about halfway down the highway back to Humboldt. Next, it was off to Saskatoon and the University of Saskatchewan, where he earned his Bachelor of Laws. Plemel’s first role after articling took him to the La Ronge Legal Aid office. The several years he spent in


that community, including a term as Legal Director, left him with a life-long passion for the North, its landscapes, and its people. To this day, annual canoe pilgrimages and fishing trips on Northern waters – with colleagues and with family – are highlights for him. In 1977, he left La Ronge and headed south. Way south. He spent 15 months travelling in Latin America. He studied Spanish in Guatemala and Peru, and made it all the way to Tierra del Fuego, an archipelago shared by Chile and Argentina on the southernmost tip of South America.


And then it was back to Saskatchewan, where he began a 10year stretch as a Crown prosecutor in the Prince Albert office. That’s where he met his counterpart on the Court of Queen’s Bench. Chief Justice Martel Popescul was also a prosecutor in the office at the time. “My first impression of Jim was of a smart, compassionate, motivated and hard-working lawyer. Sometimes, first impressions can be wrong. However, not in this case,” Popescul notes. “Jim has proven to be the quintessential “reasonable man” who was an excellent Crown Prosecutor, Chief Crown Prosecutor, Judge and Chief Judge.” Members of the Bar who’ve worked with and appeared before him agree. Kylie Head QC, a CBA past president, worked with Plemel after he transferred to the Saskatoon prosecutions office. “Chief Judge Plemel’s many years of devoted public service left a remarkable legacy with

Saskatchewan Justice. He brought a just hand to many challenging situations as a Senior Crown Prosecutor and then as a Regional Crown Prosecutor in both official languages,” Head says. “He was always willing to mentor others and welcomed many CBA law students visiting the Saskatoon Crown Office through a CBA mentorship program. I had the opportunity to benefit from his wisdom at access to justice discussions which have impacted our Ministry work. I know his former Justice colleagues all wish him the best in his next adventures.” Plemel’s French fluency was earned through years of study, including courses in the French language and French literature at the University of Saskatchewan and the University of British Columbia, as well in Quebec and France. In fact, it was while studying in Paris, while on a year’s leave from the Prince Albert prosecutions office, that he met Lorna, who would become his wife. She was from Nova Scotia,

studying at the Sorbonne. Only the serendipitous hand of fate could have brought a Prairie boy and a girl from Cape Breton together on a different continent an ocean away. Like all of the best stories, fate’s subtle nudge led to a lifetime of happily ever after – the two married and raised two now-grown sons and a daughter. Family is important to Plemel. He coached soccer with no experience because “somebody had to”, helped Lorna with high school exchanges to France, and was a board member for children and youth organizations. In fact, CBA member and past president Mark Brayford QC says Plemel’s well-deserved reputation as “a wise and kind gentleman who has led a progressive and hardworking court”, while accurate, does not give the full picture of the man. “Sometimes it is the unrecognized selfless acts that people do that make the biggest statement about them,” Brayford says. “There is an event at St. Matthew’s School (in Saskatoon)

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called Family Fun Night. My kids consider it somewhere on par with Christmas or Halloween. This event requires someone to spend an entire year soliciting enough toys and prizes that every child will win a prize, actually multiple prizes. “For most of my oldest daughter’s years at St. Matthew’s, it was Chief Judge Plemel’s anonymous behindthe-scene efforts obtaining these prizes that turned this annual event into the high point of the school year. This unrecognized contribution of countless hours each year for the happiness of other people’s children speaks volumes about the kind of person that Chief Judge Plemel is.” Plemel’s character and expertise were recognized with an appointment to the Provincial Court in Wynyard in 2009. And then in January 2015, he was named Chief Judge. It’s a role he wears humbly and, as always, with a regard for how he can best serve. “I have known Jim for 30 years as a prosecutor and judge,” notes Judge Inez Cardinal. “I want to thank him for his friendship and also for his strong work ethic and guidance throughout his tenure as the Chief Judge. He has served the court and public especially well during the challenges posed by the pandemic. I am grateful for his dedication and wish him all the best in his retirement.” Under his tenure, the Provincial Court has improved its processes and responded to significant changes to the Criminal Code. It has also advanced its commitment


to working with Indigenous communities and people. The raising of the Treaty 4 flag in the Fort Qu’Appelle courtroom in 2019 was the culmination of years of discussions. And Plemel continues to advocate for the important role that aboriginal courtworkers fulfill in courtrooms throughout the North and across the province.

place than when they assumed office,” notes Chief Justice Popescul. “Jim has unquestionably achieved that goal. He has worked tirelessly to promote and make improvements to the Court on which he was so proud to serve. The Provincial Court has benefited immensely from Jim’s leadership. Congratulations on a job well done.”

“One of the ambitions of all Chiefs is to leave the Court on which they had the privilege to serve in a better

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Though it seems like a lifetime ago, the seven months since mid-March only counts as the bat of an eyelash in the life of the legal system. Yet, to the admiring amazement of onlookers, a system ordinarily characterized by caution and extremes of deliberation managed to transform itself to meet the unexpected and unprecedented conditions of the COVID-19 shutdown. Yes, there were some awkward moments. Having lawyers observe their clients signing documents through car windows probably seemed like the only viable answer at the time; fortunately, this cumbersome system was soon replaced by genuine innovations in electronic signing. There were also some fumbles – only to be expected – as counsel, judges, clients and court staff took to unfamiliar video platforms. In one American courtroom, a lawyer complained that the judge in his hearing was resorting too freely to the mute button. And there were no doubt some unintended revelations when people failed to use the mute button at all. On the whole, however, the transition went surprisingly well for a set of changes that had to be made in length of time we would have predicted was impossible. As one observer put it in a conversation I was part of (on Zoom, naturally), there were no more delays on video

while lawyers shuffled through their documents than there are in a regular in-person hearing. Though the courts proceeded cautiously with complex litigation, and there were inevitable delays of major trials, courts across the country were able to move forward with many types of proceedings, and lawyers adjusted to interacting with their clients by telephone and video. One comment that has been made about all this is that we were thrown against our will, and with virtually no time to prepare, into an experiment in access to justice like no other. After years of advocacy, proposals for the extended use of video and other technology by the courts, pilot projects and anxiety about whether such changes would undermine the best traditions of the justice system, a menacing virus created conditions in which significant and swift change could not be avoided. We must suppose that ways will eventually be found to combat the virus, and that the world will eventually return to something like it was before. The experiment we have been forced to take part in does, however, present some interesting possibilities. One of those possibilities is that some of the modifications that have been made were actually improvements, and that those changes should be the basis for further improvements. This seems to have been recognized in the announcement of legislative changes that would permit digital signatures to be used under some circumstances not only during the pandemic but beyond.

In recent years, the legal profession, the judiciary and the public have become increasingly concerned about the capacity of the legal system to provide equal access to all those who need to have their legal issues resolved. Many people associated with the legal system have been engaged in trying to identify avenues to increased access. The crisis that has been thrust upon us has created a unique opportunity to consider whether we need to go back to doing things exactly the way we did them before. It may be that we do not need to put clients to the expense of having their lawyer travel to another city for a brief chambers appearance. It may be that we can spare clients the childcare costs associated with an office visit. It may be that we become adept at using video and other technologies for a wider range of trials, administrative tribunal hearings, and other proceedings. If the changes we have been trying out make things more convenient, more efficient and less costly for people who currently have difficulty getting resolution for their legal problems, we should probably be looking for ways to retain those changes. More thought will have to be given, of course, to what works well and what doesn’t under these new arrangements. It is encouraging to note that CBA Saskatchewan has established a task force to flag COVID-related changes in legal practice and analyse their effect, and this project will yield valuable insights. My point is that we should use this as a learning moment, and not simply glide back with relief to our old ways.

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In 1834, the first Indian residential school (IRS) opened in Canada1 and in 1997 any remaining schools closed their doors.2 In 2018, University of Saskatchewan College of Law (USask Law) implemented a mandatory course in the first-year curriculum, and added an upper year requirement of three (3) credits in Indigenous Legal Studies.3 These were implemented in response to the Truth and Reconciliation Commission (TRC) Call to Action #28 released in 2015.4 The name of the first-year course is Kwayeskastasowin, which is Cree for This term was chosen because it most closely encapsulates the term “reconciliation”.5 My first semester of academia was also the first semester for Kwayeskastasowin. I have extensive professional and academic qualifications in the areas of Canadian Aboriginal law and U.S. Federal Indian Law. I am an early career academic, and have taken trainings and workshops on teaching pedagogies. Based on these and my own experience with this course, my qualifications and experiences prior to USask Law alone were and are not the ones necessary to teach first-year law students to learn about the effects of 500 years of colonialism and over 180 years of forced assimilation/cultural genocide via educational institutions


and legal actions. After two years of teaching this course with lessons learned and shared with USask Law, the College will be incorporating more anti-racism and anti-oppression education into this course. In addition, the new path that the Indigenous Law Centre (ILC)6 is taking has also paved the way for them to expand directly into USask Law, and they will combine the skills, experience and expertise in Indigenous pedagogy to start to “set things right”. Implementing Kwayeskastasowin In the two years of implementing Kwayeskastasowin, I have changed the curriculum substantially from the first year (2018) to the second year (2019), incorporating more about anti-racism and anti-oppression. This incorporation is necessary because students need anti-racism and antioppression before taking a course on Aboriginal/Indigenous issues. The paradigm shift to transform thinking is profound, and without a solid foundation that this type of education can provide, it is difficult for true reconciliation to take root and for people to “not be afraid to be vulnerable. Be humble. Build relationships.” 7 I also expanded the depth of the “experiential learning activities”. Experiential learning activities are defined by USask as:

There is a difficulty in bridging what was being done in Kwayeskastasowin – ceremony, Indigenous pedagogy, and post-colonial Indigenous consciousness9 with the academic term of experiential learning activities. The experiential learning activities were a sweat lodge ceremony, reflection journals, talking circles, and ledger art. It was also difficult at times for the students to understand the value of these activities when this course is only one of three that does not have the typical law school exam.10 Where’s their “law school experience” amidst these “experiential” ones? I strongly believe the students’ reflection journals showcased this struggle. It was a first step towards how to “set things right” with themselves, and within the broader context of law school and society. The Ledger Art paired students into a group and gave them a small taste of what it is like to try and reconcile differing views of “a new vision of an equitable society where Indigenous legal traditions are an inclusive part of Canadian law.” These are the most visible examples of what can be done with small groups to challenge the status quo, and I have included some of these works in this article. In general, I believe that this course may result in having a fuller law school experience than might otherwise have been without direct experiences, authentic assessment, and reflection. Next Steps

is one Cree concept and must also be taken within a broader context and other aspects of Cree principles and laws. Cree has a larger view of relationships and legal


orders, such as wahkohtowin (laws governing relationships where all is related), which shows other principles must also be included.11 I would argue that these are necessary in order to fully arrive at having things “set right”, as this is what reconciliation is at its core. It is based on this more holistic concept, and my two years of teaching that I can state having only one course in first-year that speaks to Setting Things Right – won’t. It is a good start, but instead, more systemic change is necessary throughout all the curriculum, law school, and legal system. Editor’s Note: Dr. Lavalle is the sole professor for this course, which was the largest USask Law course in 2019, as it included all first year students plus transfer students. Canada’s Residential Schools: The History, Part 1 Origins to 1939 The Final Report of the Truth and Reconciliation Commission of Canada Volume 1, p. 67. (In 1834 the Mohawk Institute began boarding students and operated until 1970.) 1

Canada’s Residential Schools: The History, Part 2 1939 to 2000 The Final Report of the Truth and Reconciliation Commission of Canada Volume 1, p. 105 2 current-students.php#Courseinformationandprogramrequirements (accessed October 11, 2020). 3

The Call to Action #28 (CTA #28) states: We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal– Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and antiracism. 4

Faculty of Law, University of Alberta, Faculty Blog, The Law in Language: Wahkohtowin, Pastamowin, Ochiwin, & Kwayeskastasowin, September 25, 2017, 5

faculty/2017/09/tansi-n%C3%AEt%C3%B4temtikthere-is-no-cree-word-for-reconciliation-but-aslorena-sekwan-fontaine-explained-during-thisweekendsre.html Poitras, Marilyn. Indigenous Law Centre, p. 14-15 (available at: docs/barnotes_summer_2020_final) 6

Dussion, Nordika J., Reconciliation in Saskatchewan: An Indigenous Perspective, p. 17 (available at: docs/barnotes_summer_2020_final) 7 minutes/201804SenateEXPERIENTIAL-LEARINGHANDOUT.pdf (retrieved August 14, 2020). Further definition is found at display/ECUR165/Experiential+Learning (retrieved August 14, 2020). 8

James (Sákéj) Youngblood Henderson, “Postcolonial Indigenous Legal Consciousness” (2002) 1 Indigenous Law Journal 1; Hewitt, Jeff, (Wunusweh Lecture, January 14, 2019), Hewitt states art sometimes shows Indigenous laws and viewpoints. Trefiak, Sarah, Drawing Conclusions: New Course Uses Art To Reimagine The Canadian Legal System, Of Note College of Law, at 4: ( of_note_summer_2019_web.pdf) 9

Legal Research and Writing, and Dispute Resolution are the other two courses (https://law.usask. ca/students/jd-students/new-to-law.php#Firstyearclasses) (accessed October 11, 2020). 10


See footnote 6.

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The Wampum Belt is responsible for holding both the Evolving Treaty Rights and the Arrangements for Living and Livelihood sides of the scale in balance, as they are equally important within this legal principle. The items on the scale reflect the balance between past, present,

This ledger drawing portrays the principle of (finding one’s centre) in two senses: as a representation of the Canadian legal system, and of the individual’s perspective. While both Indigenous and Anglo-Saxon laws have their own centres and places of belonging, individual lawyers and the legal system as a whole must strive to achieve harmony, effortfully

Our ledger drawing is inspired by the Iroquois creation story as presented and modified by Elder Marie Campbell. The Turtle story is a narrative also mirrored in four Cree words: the laws governing relationships had been so broken that terrible consequences resulted in the form of a flood. Upon the back


and future aspects of the law and livelihood in Canada and they are not frozen in time. The androgynous Justice is physically setting a fair and balanced legal system in place.

counterbalancing the historically disproportionate weight of European text-based laws with the powerful symbolism and spiritualism of Indigenous laws. We achieve this equipoise through “two-eyed seeing”, by viewing justice simultaneously through both unique perspectives, one never subsuming the other.

of the great turtle, surrounded by the destruction of past wrongs, a cast of characters work together to re-create the world. They must set things right



Below are three former students of Kwayeskastasowin in an account of the role it holds for each of us in forging a path of reconciliation.

In my experience with Kwayeskastasowin over the last two years, a student in the first and a teaching assistant in the second, I observed how the course catalyzed a transformative thought process. Students were initially taken on a journey back in time to show that prior to European contact, Indigenous people had strong laws of governance, and thriving community, culture and customs. Indigenous sovereignty and ways of life, interrupted by the Crown’s assertion of (invalid) title, was viewed as racially inferior by way of the doctrine of discovery. Subsequent law and policy were the tools used to oppress Indigenous people as evidenced by the and the assimilative residential schools. Many firstyear law students were unaware that residential schools existed in Canada prior to taking this class or the depth of their oppression. This gave new meaning and context to how Indigenous people came to be at the lowest rung of the socioeconomic ladder and changed the narrative that somehow Indigenous people created it.

The course then exposed the systemic racism present in our justice system. Jurisprudence such as revealed that in a case, as recent as 2015, an Indigenous female victim was referenced by the Crown in derogatory racial slurs during trial in a superior level courtroom. That same Indigenous victim was grossly dishonoured and revictimized when Crown adduced her actual body tissue, requiring bodily dismemberment, as open courtroom evidence for the first time in Canadian history. I fail to understand how this evidence could be adduced for its relevance or prejudicial effect, notwithstanding that section 182 (b) of the stipulates it is an indictable offence to improperly or indecently interfere with human remains. For me, this is a tragic reminder that race, class, and social standing are variables to determine how one will be treated by our justice system, and specifically, whether one will be afforded fairness at trial. As an Indigenous student, this class was validating as it created space to name and surface the realities for Indigenous people. The impacts from reservations, a pass system, Indian agents, , residential schools, day schools, sixties scoops, foster care, incarceration, suicide, drug overdose, alcoholism, poverty, unemployment, homelessness, broken family systems, and loss of culture, language and identity has been a part of our lives for too long. Kwayeskastasowin has challenged each law student to be a part of reconciliation and use their future role in the legal profession to change

our legal system since defective law and policy contributed greatly to the systemic issues in the first place. ANDRÉ BEAR

Kwayeskastasowin was a difficult experience as one of the only visibly Indigenous people in the classroom. The class had encouraged open dialogue, and it was unapologetically honest in teaching the horrific injustices Indigenous peoples have faced in historical and contemporary society. Our professor had invited Indigenous leaders from all walks of life, including scientists, lawyers, politicians, and cultural leaders, to share their experiences in tandem with the course content. These Indigenous leaders’ presence created a powerful dynamic that shifted students’ hearts and minds, regardless of whether they had any experiences with Indigenous peoples, or whether they were “forced” to take the course as a mandatory first-year credit. Students collectively shared many first-time experiences, including participating in a sweat lodge, smudging, or hearing a presentation from an Indian Residential School Survivor. Prior to this class, some students believed that Indian Residential Schools were actually good experiences. Many admitted their families only have racist things to say about Indigenous peoples at home. At one point, one of the nonIndigenous students broke down in

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COMMENTARY tears and admitted to participating in high school bullying of a young Indigenous man who eventually killed himself. This encounter exposed the extent to which racism hides behind the motives of people who don’t have the tools to cope with the racism embedded in our systems. It was difficult to watch the transformation of my peers because it made me realize how the legal system itself might be different today if every legal professional had this opportunity. That said, even though we cannot cure racism with a mandatory firstyear law class, it is undeniable how Kwayeskastasowin made a room full of future lawyers and judges deeply reflect on whether they are going to be a part of the problem or are going to be part of making strides toward true and equal justice for all. RORY ERICKSON

Kwayeskastasowin illuminated the expectations held by educators in their learning and teaching of racism and oppression as they exist within the system of law. A single course, workshop, video, or apology cannot alone dismantle the forces of racist progress. There is an imagining of racism that exists as a fixed category, whereby the polarizing conception of ‘a racist’ functions as someone who is fundamentally corrupt in their moral character. Racism functions instead as “productive,” in the words of Ruha Benjamin, where it can adapt and evolve contemporaneously to remain undetected and without a name. This evolution of racism and white supremacy allows for a persistent devaluation of Black and Indigenous


lives in maintaining that gratitude should be held to the bare minimum: At least you’re alive, and for that, you should be grateful. Anti-Racism and Anti-Oppression practice must occur in an ongoing manner for each and every one of us in our work with community members, colleagues, and clients. The histories of oppression set into settler colonial law are not of a distant past in this country. Women were not regarded legally as persons until 1929, Indigenous peoples were not allowed to vote in federal elections until 1960, racial segregation in education remained law until 1983, and the last residential school, located in Saskatchewan, closed in 1996. Kwayeskastasowin provides the necessary learnings of harms both legitimized and empowered by colonial systems of law, and the unlearning of their practices and the learning of

practice. However, it cannot alone address the ever-evolving systems of oppression that emerge as elusive and productive in maintaining a process of exclusion and suppression towards marginalized people. It remains the significant task of each of us as practitioners, educators, and lifelong students to make a commitment to learning, healing, and encountering the belief that as white people, we benefit from racism when it effectively leads us to the deepening of inequity for all people. For example, a suicide prevention plan in Saskatchewan that seeks to benefit every community member, especially Indigenous people who represent three times the rate of suicides as non-Indigenous people, is sooner struck down for the purposes of political theatre. We are “dying from whiteness” in believing that we must resist social progress for the sake of an untenable alignment to political actors and policies that would sooner cause our demise.

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WINTER 2020 15



8:00 AM - 9:30 AM

8:00 AM - 9:30 AM




9:50 AM -11:20 AM






11:40 AM -1:10 PM



11:20 AM -11:40 AM 11:40 AM -1:10 PM






8:00 AM - 9:30 AM







Register Online at For login assistance call the Branch 306-244-3898 (Saskatoon) or 1-800-424-8288 (SK only) Registration provides a personalized login, access to all three days of sessions, Exhibit Hall, recordings of the sessions and any materials provided by Presenters. You will still indicate your choice for individual sessions on the registration form but there is no option to register for one or multiple days. It's an "all or nothing" registration.

COST (Access to all 3 days, all session recordings, materials provided by Presenters) CBA Member: $150 Non-Member: $450 CBA Articling Student: $60 CBA Law Student: $30

REFUND POLICY Testimonial: “I have lost track of the number of Mid-Winter Meetings I have attended. I get my entire year’s worth of CPD, including ethics, done by February. As an in-house lawyer, I enjoy the varied options; there are always interesting sessions, and some have practical application. Finally, the Mid-Winter is probably the best value-for-money out there. I look forward to trying the new “virtual” experience for 2021.”

~ CBA Member since 2003

Cancellation must be received by January 19, 2021 for a full refund. After January 19 refunds will be considered individually and a minimum holdback of 30% applied.

DEADLINE FOR REGISTRATION: January 21, 2021 To ensure you receive your personalized login to access the platform, please register by January 21, 2021. This will also ensure you can access the platform on January 25 and test your login credentials and receive any necessary tech assistance. Late registrations may cause a delay in you accessing the first day of sessions.

EARLY BIRD DRAW: January 15, 2021 Register online by January 15 and be entered into a draw for a $100 gift card.

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is the theme of the CBA Mid-Winter Meeting set for January 26, 27 and 28, 2021. We have responded to this year’s unique challenges by converting the meeting to a virtual online event, with sessions running from 8:00 a.m. to 1:00 p.m. over three days. You will have the chance to hear from some of the best experts in their fields and distinguished speakers addressing topics that will benefit lawyers in all areas of practice. Also, due to the online format, we are pleased to provide this year’s MidWinter Meeting at a considerable discount: $150 for CBA members (non-members pay $450, articling students pay $60 and law students pay $30). Some highlights of this year’s schedule include: • Chief Justice Richards of the Court of Appeal for Saskatchewan will be reminding lawyers of our duty to support democracy and the rule of law; • CBA President Brad Regehr will deliver a presentation on the Legal Profession and Reconciliation; • Jason Mercredi, Executive Director of Prairie Harm Reduction, will be joined by Adrienne Smith and Caitlin

Shane, two leading practitioners in drug policy, for a Q&A on addiction, harm reduction and the war on drugs in the context of our current opioid epidemic; • David Krebs of Miller Thomson LLP will be joined by Constable Kendrick Bagnall of the Toronto Police Service Computer Cyber Crime Unit to discuss effective and compliant responses to cyberattacks; • Lisa Mooney, global lead for sustainability and strategic inclusion at Nutrien will present on the Indigenous Lives Matters movement and Reconciliation; and • Dr. Rachel Loewen-Walker, former Executive Director of OUT Saskatoon and current Ariel F. Sallows Chair in Human Rights at the College of Law, will speak on amending the Saskatchewan Human Rights Code to include protections for gender identity. Here is a sample of what else is on the program: For all lawyers: How to automate and improve your legal practice, and a discussion of professional regulation in a time of disruption. For Solicitors: considerations for drafting and negotiating indemnities and releases, and a review of COVID19’s impact on employment law and workplaces. For Family Law Lawyers: An update from the Honourable Justice F. N. Turcotte and Gregory Walen, Q.C.

on the new Queen’s Bench Rules which will come into effect early this year. Please check out the brochure for the entire educational program. The Law Society of Saskatchewan has approved the educational program for credit of 12 CPD hours, including at least 3 ethics hours. Finally, I would like to acknowledge the support of our sponsors and virtual exhibitors, and especially the hard work of CBA Saskatchewan Branch Executive Director Monteen Dent and other staff. I also want to extend my appreciation to our exceptional committee members:

Troy Baril, Miller Thomson LLP Anna Beatch, MLT Aikins LLP Davida Bentham, Veeman Law Angela Giroux, Nutrien Reché McKeague, City of Saskatoon Tom Richards, Bennett Jones LLP Matthew Wiens, McKercher LLP All who made great efforts to assist with this unprecedented virtual MidWinter event. We look forward to seeing you at the 2021 Virtual MidWinter Meeting!





The Office of Residential Tenancies (“ORT”) is an administrative tribunal, independent of government. We provide information about the rights and responsibilities of landlords and tenants in Saskatchewan. In 2019-20, our office handled 90,301 inquiries; to date in 2020-21, we have received 69,630 inquiries. When landlords and tenants cannot resolve disputes on their own, both have the right to ask the ORT to make rulings and settle the dispute. The ORT publishes all of its decision on CanLII, which, to date, has over 4,100 ORT decisions. Our Office adjudicates residential landlord and tenant claims, which include landlord applications for possession and monetary claims, and tenant applications for breach of tenant rights, monetary, and security deposit claims. Monetary claims are allowed up to $30,000, above which the parties must apply to the Court of Queen’s Bench. In 201920, the ORT processed over 6,000 applications. The process of the hearing is governed by , its Regulations and Rules of Procedure. Each hearing

is unique to the evidence presented, the type of claim(s) being heard and are ultimately governed by the principle of procedural fairness. The vast majority of ORT matters involve self-represented parties. This means hearings involve a reasonable degree of education and accommodation to ensure a fair and judicious hearing. It is not uncommon that a hearing officer will attempt to assist the parties in developing a joint resolution or settlement. Through this process and the work of ORT staff, the ORT is able to jointly resolve a large number of the issues that are brought forward. Counsel can direct their clients to the ORT to assist in dispute resolution.

COVID-19 led to major changes in the ORT’s daily operations. On March 26, 2020, the Office was closed to the public for in-person visits and stopped accepting nonurgent applications. The ORT was still open via phone and email. It was determined that it was in the public interest to limit evictions to reduce the risk of COVID-19. All non-urgent hearings scheduled subsequent to March 26, 2020 were put on hold to be rescheduled later. Only urgent applications, principally eviction applications based on serious circumstances or tenant breach claims involving a pressing issue, such as a lock-out, were accepted between March 26 and August 3, 2020. On August 4, 2020 the ORT resumed acceptance of non-urgent claims. Previous office policy changes enabled the ORT to operate with relative ease under these circumstances. Hearing officers and staff have remote access to ORT

Online, the ORT’s claim database. All hearings were and continue to be conducted by telephone. Inperson service at both the Regina and Saskatoon offices continue to be closed to ensure public and staff safety. All inquiries are addressed through email and telephone. Given these circumstances and the higher than normal call volume, email communication is recommended. With telephone hearings being a new way of life for many lawyers, there are some points of practice we recommend to assist in these types of hearings. First, the preparation of document lists for more burdensome claims. If there is no formal list prepared when parties are providing evidence, it is difficult for parties to follow along. Second, preparing your client for the hearing is also important. Prompting when your witness should speak and encouraging them to remain silent while the opposing side provides their testimony will help ensure a timely and respectful hearing. Indicating who is on the call, who you intend to call as witnesses, and other preliminary issues should be advanced at the beginning of the hearing. Lastly, we encourage counsel to engage with opposing parties to try to achieve resolution prior to the hearing. After our Office re-opened, many landlords strived to work with tenants regarding payment plans for late rental arrears, often to the benefit of both parties. As every litigation lawyer knows, preparation is key, and we are hopeful that taking these small steps will assist everyone moving forward.


WINTER 2020 19


USING INNOVATION TO BUILD OPPORTUNITIES common to use ordinary voice-only teleconferencing if distance was an U OF S, issue.


It feels like we have been living with Covid-19 forever. And we might still be closer to the beginning than the end of the pandemic. Nonetheless, I am an optimist, so I try to look for opportunities rather than problems. While Covid and its impacts create more than enough concerns (as witnessed by the other articles in this issue), there are some positive signs as lawyers bid a not so fond farewell to 2020 and continue their careers. Those can be summed up in how technology has been applied, and how institutions like the Law Society of Saskatchewan and the University of Saskatchewan’s College of Law are trying to meet the challenges. Oddly, the considerable growth in technology use since March, 2020 has not involved huge innovations. This might seem counterintuitive. Most of us had barely heard of Zoom before this year, let alone things like VPN’s or remote desktops. But almost everything we now use existed long before this year. The difference is in the willingness, or necessity, of applying that tech. Take video conferencing as an example. Skype, a product that was already a verb for video calls, was invented in 2003. But apart from a few pockets here and there, video conferences were rare before the coronavirus hit, especially for lawyers. It was far more


This had more to do with human factors than technology. Skype worked (mostly) well for video calls, but few business meetings used it. Why? I think self-consciousness and skepticism of something new held it back more than anything else. Even Apple, which adopts technology only when it is mature, realized that FaceTime was more popular between grandparents and grandkids than business colleagues, especially outside the tech sector. The ways which we interact as human beings have deep, sometimes subliminal, roots and are hard to overcome. It takes a massive disruption like a pandemic to displace those barriers. Suddenly, we had to reach out in new ways because of physical distancing requirements. Plus, we were all in the same boat: we could feel less embarrassed about looking at ourselves in a video box when everyone else was also struggling with bed hair and whether they forgot to unmute themselves. There have been some improvements to video conferencing software in the past few months. But being able to add a tropical beach background barely touches the core technology, which was already here. What Covid did was force adoption of existing technology. It is always the case that innovations take a long time to filter throughout society. The impacts of the printing press took hundreds of years to reshape our thinking. We are still figuring out the effects of television

70 years after it reached wide use (reality TV is proving it is not all good). And the internet, which has only been in general use for about 25 years, is challenging us in everything from social media to election disruptions. Yet there are plenty of good outcomes and we are figuring out more as we cope with this environment. Our slavish attachment to physical offices is disappearing, and many clients appreciate the ability to meet their lawyer without travel. Courts have adopted online hearings, significantly reducing the time and cost of litigation. Our ideas of work-life balance have shifted. Yes, trying to work while kids are in the same house is challenging, but you cannot discount the value of being able to see your children more. These are not universal truths. There are more than enough downsides of living with the virus. But we should avoid the tendency to only see the bad in how technology has changed our workflows. This is a perfect opportunity for lawyers to cement our position as goto resources in society. We are one of the original knowledge professions. Our core function still involves giving answers and help to those who do not know how to solve a problem. This does not mean our clients are less intelligent, or that other sectors of society do not also solve problems. My point is just that we have often lost our way in offering a value proposition to the public, especially in the light of new technology. If customers can solve a problem themselves, why should they hire a lawyer?


We are not the gatekeepers to knowledge we once were. Our services must become more sophisticated as information trickles down to everyone. If a client wanted a non-disclosure agreement 30 years ago, they had to see me to get one done, unless they were lucky enough to have old documents lying around. Today, they type “NDA” into their search engine and get enough to make their eyes water. That has changed my role. Instead of drafting a document, I more often am reviewing something they have stitched together, or pointing out why a particular clause will or will not fit their situation. More and more I sell my experience and wisdom rather than technical drafting skills. I use technology to strengthen those services, so I can provide them efficiently. This shift is not new. We have been discussing it for years in the context of access to justice, alternative legal providers, and other top of mind discussions. Indeed, two of the primary legal institutions in Saskatchewan, the U. of S. College of Law, and the Law Society of Saskatchewan, have been at the forefront in thinking about these problems. They were considering solutions long before Covid was even thought of. For example, Dean Martin Phillipson emphasizes the responsibilities of the legal profession to his students from their first day of law school. He and his faculty urge them to think about molding the future to those demands instead of mindlessly sticking with past practices. Using flexible and creative thinking to meet future markets dovetails nicely with the Law Society’s growing focus on coaching rather than bare discipline. These modes of thinking led the College and Law Society to partner in a

unique law school program beginning this Winter. Titled “Transformation in Practice: Reconstructing the Future Lawyer,” I have been privileged to lead the development of a new course which tries to better prepare our future and current lawyers with the skills and mindsets they will need to remain relevant as a profession. A major goal of the new course is training lawyers to better use the tools available. This includes technology, of course. It makes no sense that the original knowledge workers would not be experts in the Information Age. Too often, however, lawyers resist technology as a competitor instead of embracing it as an ally. Think back 15 years ago or so, when lawyers were moaning that AI would replace them. Has it happened? No. Will it reduce work done by lawyers in certain areas? Unquestionably. Document analysis software means that future articling students and young lawyers will spend less time on mundane research. Software kits mean a basic Will can be done without a lawyer. But so what? There is so much more to estate planning than a rudimentary Will. Tax consequences, personal finances, even family dynamics, are aspects that only a human brain can analyze and respond to. Those skills are the real product which customers need. As Paula Littlewood, the former executive director of the Washington State Bar Association said, we must work to the top of our license. It is not only more enjoyable and rewarding, but more lucrative because it cannot be easily done elsewhere, by people or machines. While technology competence is a core part of the new course, much more is included to help law students learn what

lawyers actually do. My experience as a young lawyer was like many others. I had been taught how to analyze case law in law school, usually appeals cases, and could write briefs and memos. But I did not have a clue that I actually had to market my services, or how to understand law firm economics, and the necessity of managing mental stress was not even a consideration back then. All those skills are crucial for lawyers, even those outside private practice. While we cannot cover all of them in the initial course, they will be introduced and form the basis of future programs. The concept of legal education includes more than just law school. Most lawyers are life-long learners, since the substantive law we learn in school is often obsolete in a few years. Therefore, the College/LSS project is meant to be modular. The concepts and topics covered are designed to be offered as continuing professional development for existing lawyers. Whether the concepts are new or old, lawyers who are beyond law school can benefit from this learning opportunity. With the emphasis on technology, one of the lucky aspects of the course was that it was envisioned from the outset to be delivered in a non-traditional way. We did not plan the class as a conventional chalk-talk, where a prof just presents from the bottom of a lecture theatre. We wanted to deliver much of the content online, actually using the technology which lawyers would have to adopt, identifying its advantages and disadvantages. Since this course was designed from the ground up to be delivered online, it will start as planned in January, 2021


WINTER 2020 21


CHALLENGES OF WORKING FROM HOME Given our new reality, I would like to offer a few broad considerations for KOSKIE LAW those jumping into this breach. TED KOSKIE

Writing for Thompson aptly states:


legislation continues to apply. i) Employers must pay employees for all time worked when working from home, including overtime, the same as if they were working at the office. An employer may restrict employees from working overtime, but must pay all overtime that they work.

At a minimum, employers should establish a “work from home” policy. By being proactive and creating a policy with clearly defined expectations, one can reduce issues and liability. Such a policy should address the following:

ii) Employees should stick to all applicable meal and rest break requirements when they are working from home.

1.Eligibility a) Determine what positions make sense to work remotely. i) Consider what notice is required for employees to return to the office.

Quoting Hiten Shah, he goes on to say:

b) Determine whether employees have health-related conditions that warrant consideration to work remotely. c) Consider whether an employee’s household may be put in danger if the employee is working outside the home–such as a spouse receiving cancer treatment. d) Consider human rights issues – employers cannot discriminate against employees on protected grounds. i) In some circumstances, a legitimate consideration may arise when children are not able to go to school or a family member requires care.

He concludes:

2. Availability a) Availability expectations should be outlined. b) Define when the employer expects employees to respond to others and the method of communication to be used. c) Ensure a system is in place for tracking and monitoring hours of work and expenses. d) Remember, employment standards


iii) Revisit your sick leave policy.

• Provide a mechanism for how employees call in sick. • Provide for what happens when an employee is forced to quarantine or be tested. • Provide for specific precautions, such as refraining from non- essential travel, cross-border travel, etc.

3. Productivity a) Specify how performance, productivity and quality of work will be managed and measured. b) Ensure employees and managers understand these measures and how they are being used. 4. Environment a) Employers should attempt to provide the resources employees need to work from home effectively. Where that is not possible, they should evaluate the tools and equipment needed and decide whether and to what extent reimbursement for associated expenses may be necessary. b) Review and approve of the employee’s physical working environment. Employees should


ensure their work area is free from hazards that might pose a danger.

onto a personal computer or external storage device; and

c) Employers have an obligation to accommodate employees with disabilities. That could include such equipment and accessories as would otherwise be provided in an office setting.

iv) reporting any security breaches or inadvertent disclosure of confidential information.

d) Establish protocols for employees to follow when speaking with customers and clients by telephone or video conference. This should include expectations on dress code for video meetings. e) Specify what technical support will be offered to employees. Establish a plan of action for encountered difficulties. f) Review insurance policies to ensure coverage is adequate. g) Remember, occupational health and safety and workers’ compensation legislation continues to apply. 5. Security a) Rules must be put in place to guarantee security of confidential information in every form. b) Company privacy policies should continue to apply while working from home. c) Employees should take reasonable steps to safeguard the security and confidentiality of company documents. d) Consider implementing/updating guidelines respecting: i) whether employees are allowed to take home company documents or other property; ii) how and when employees safeguard information, including data stored on electronic equipment; iii) whether employees are permitted to print documents at home and whether they can save documents

e) Review policies respecting the extent to which there is an expectation of privacy over information shared and stored on devices being used to conduct company business. 6. Modification a) Establish how and when the policy can be cancelled or amended. Both employers and employees should review employment agreements, collective agreements and other policies to ensure the desired practice is clear. If changes are needed, negotiate them. Otherwise, constructive dismissal claims and grievances–in non-union and union workplaces, respectively– may be the result.

CONTINUED FROM PAGE 19 In September 2020, the ORT implemented a Case Management Conference (“CMC”) process for claims over $20,000, or certain contested claims. This process mirrors that of Small Claims Court. The ORT will schedule the CMC prior to the hearing date and will attempt to mediate a possible resolution to the matter. If unsuccessful, they will work out the finer details about the hearing. This conference is without prejudice and, if unsuccessful, will continue to the hearing with a different hearing officer. The ORT’s goals with a CMC are to facilitate early resolution and provide clarify on the issues of a claim. This will allow both sides to put their best case forward at a hearing.

CONTINUED FROM PAGE 21 despite the University restricting classes to distance learning only. Another theme supporting the course is a willingness to take risks and be wrong. It is drilled into us as lawyers that we must be right the first time. Mistakes are not tolerated. This is completely understandable, given the consequences to our clients if we are incorrect. But an inability to be wrong does not foster innovation. We must retire the mindset that we are infallible and never make mistakes. This is a challenge for a regulator like the Law Society of Saskatchewan, naturally, because its primary mandate is to protect the public. Yet, it can be managed. Concepts like regulatory sandboxes are being adopted, which lets innovators provide new services under appropriate supervision and with transparent risks accepted by stakeholders. The key is informed disclosure. Would somebody accept a service which might not work, but could have fantastic results at a fraction of the cost? Surely some would, and by encouraging that attitude of risk-taking and innovation, we can improve access to justice and ultimately benefit the public. This has been a wide-ranging discussion of a lot of big topics, but the key is that the future is not as dim as it might seem while we are all locked down. There is tremendous opportunity available to lawyers and their customers. It will undoubtedly need a change in view, and the old ways of doing things may not work anymore. But most of us got into the legal profession because of its freeform environment which rewards big, creative thinking. There will be no shortage of those opportunities.

WINTER 2020 23

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Speaking from hindsight my firm’s experience in Unity, Saskatchewan is one of relative success. We were able to remain open and operational throughout. Our office layout allowed for proper distancing. The timing was optimal. And being a solicitor only firm, we were less affected by the disruption of the courts. My initial experience would likely parallel that of other Saskatchewan firms. In March I recounted the good fortune with my clients, during Covid-19 induced car side meetings, about how much colder it potentially could have been. Give me a 2+ in March and it is news for days. For a period, the credit union, insurance agencies, and accountants, had all closed access to the public. For me that meant no notaries or easily accessible ILA. Guarantees and homestead interviews, which were previously a walk next door, were now seemingly impossible. This was thankfully a short-lived reality and, being a small town, we were able to plead our case directly to our neighbours in order to ensure our clients could meet the requirements. Our farming client’s were still gearing up to go full swing and this timing worked to our favour. People do not stop eating during a pandemic. There was a nervous unknown with having no direct instruction on s.31 of the

when the emergency regulations were released. This section requires an individual giving a guarantee, as defined, to “appear before” and “in the presence of” a lawyer or notary. Thankfully, s.31(6) gives that provision a substantial completion/good faith element and it is my opinion that attendance by electronic means will satisfy the section.

during the gap. This speaks to the flexible understanding that I felt permeated the practice of law generally. That everyone is going through this, that everyone is trying their darndest, and as long as there is not a leveraging of the situation, we can trust other members to achieve the ends in good faith of the standard procedure. Trust being a staple of our field.

While many clients adopted seamlessly to the fumbling difficulties of video witnessing, there was a shared sense of loss. One major perk we offer as a rural firm is the intimate relationships we hold with our clients. Not being able to meet face-to-face with a client that has been using our services for decades displaced a massive feature of our services.

My experiences above are acute examples of how Covid-19 affected my practice. The core of rural practice in Saskatchewan is still one of intimate relationships. One where the grandmother, father, daughter and grandson may all come through your doors. How Covid-19 will permanently affect this dynamic is still playing itself out. I am certain that my firm weathered relatively unscathed in large part because of the solid relationships that existed before the pandemic. Covid-19 has emphasized the importance of embracing technology and also the shortfalls in the products currently available. How technology will evolve to address the more qualitative side of client relationships, and the resisted adoption of the same, will play a large role in the future of rural practice.

Ken Neil has been practicing in Unity for over 35 years and in some cases is providing assistance to fourth generation clients. Unfortunately, having a personal relationship with the lawyer for a few decades does not meet the Law Society’s ID verification requirements. One might also speculate what kind of internet speeds are needed for a video conference platform to display clearly the font on a driver’s license being held up next to the head and all held within frame during the same session. I can assure you, it is more than what is available to a lot of the homesteads west of the 3rd. It was also a bit of a nail biter when the emergency regulations lapsed and we were still receiving transfers that were remotely witnessed. To our benefit, and somewhat surprisingly, Information Services Corporation (ISC) still accepted those transfers

WINTER 2020 25



The practise of law can be overwhelming. I recall asking a colleague if he ever felt too dumb to be a law-yer and his response was “every single day.” Although he was surely exaggerating, his response provided me with an odd sense of reassurance and vindication. “Good,” I thought, “it’s not just me!” At the same time, I decided a life of feeling inept, even from time to time, was not for me and decided to narrow the scope of my practise ASAP. Lawyers in private practice also face the burden of the “business of law”, which generally demands the following tasks: 1. Marketing: “get out there and bring in clients!” 2. Sales: “convert those consults into paying clients!” 3. Legal work: fair enough… 4. Manage your staff: “train, delegate and become more efficient!” 5. Manage technology: “become competent with email, word processing, accounting software, etc.” 6. Manage time: “get in those billable hours! 7. Collect: Either “get those retainers,” or “collect those debts!” Of the seven hats expected to be worn, most are formally trained and, I respectfully suggest, qualified in only one: legal work or providing legal advice and services. This article focuses on managing technology.


One of the merit-badges I seem to have earned (at least with peers) is “legal tech forerunner.” I accept that I have embraced technology more than many, but to say I am technologically advanced would be an insult to those outside the legal community who truly are technologically advanced. Truthfully, I am tech savvy “for a lawyer,” an important distinction because if you remove “for a lawyer,” I don’t feel the “tech savvy” label would stick. In fact, my 11 year-old son likely has me beat on the tech savviness spectrum. So, how have I convinced others I am a “legal tech forerunner?” Simply put, and absolutely no offence intended, we swim in a shallow pool. Investing in improving technological competence requires time and directly competes with serving often-immediate existing client needs. Moreover, the sheer volume of technology available can be anxiety-inducing. Few lawyers, in my experience, can find nor justify the time commitment of exploring technology. Many have been discouraged by previous attempts at investing in “solutions” that proved to have more cost than benefit. Few know how to assess their needs and analyze how technology can help. Unfortunately, I can only offer anecdotes on how I have implemented technology successfully into my practise - one step at a time. Build Processes First, I built and documented repeatable processes for most dayto-day tasks. For example, our intake process, shown in Figure 1.1, involves each client being diverted to one person who performs a conflict search, flags potential conflicts, gathers intake

information, collects payment for and schedules a consultation, reminds the client of the consultation 24 and 6 hours prior, then follows up with general information about our firm following the consultation. Schedule tentative appointment and gather information: Names of all involved, birth dates, etc. Fig. 1.1

If by phone, complete intake form. If by email, forward for client to complete intake form with “Intake Email”

Run Conflict Search

Obvious Conflict

No Conflict

Potential Conflict

Send Conflict Email

Send Introductory Message

Send Lawyers Involved “Potential Conflict” Email

Gather Information From Intake Form And Enter Into Clio

Follow up daily until it is determined whether the potential client is or is not in

Determine if client wants 15 or 90 min consult

Send Engagement Letter

Brainstorm Improvements and Assess Figure 1.2 is an over-simplified example of how we brainstorm to improve tasks in a process. For example, the conflict search could be rearranged and software can assist and add consistency. Gathering intake information could be improved by having the client fill out an intake form themselves. The form could be hardcopy paper or, better yet, an online form. We could manually enter the data into our system, or we could find a way to automate that step. Payments could be collected in a variety of ways – in-person, which may present challenges during the pandemic, or online. Our office could


converse back-and-forth with the client to find a suitable time for the consultation, or perhaps that task could be automated. The person responsible for reminding clients could send the 24 and 6-hour reminders personally or, better yet, perhaps automatic reminders can be sent out. Specific information could be drafted for each client or, better yet, a generic letter with infographics could be personalized. Fig. 1.2 Improvement


Tech Options

Run client search first and use program to assist

More accuracy, less errors

Practice management program (ie. Clio, Practice Panther, etc.)

Have client fill out their own information using intake form

Less coordination required, reduce staff time involved

Google Forms, Clio Grow, etc.

Have client information automatically entered into Clio

Less staff time, quicker transfer of data

Zapier, Google Forms, etc.

Let client schedule their own appointment

Less coordination required, reduce staff time involved

Scheduling app (ie. Calendly,, youcabookme, etc.)

Run Conflict Search in Clio

Obvious Conflict

Send Conflict Email

No Conflict

Potential Conflict

Send Introductory Message and Send Intake Form for Client to Complete

Send Lawyers Involved “Potential Conflict” Email

Use Zapier to Automate Information from Client form to Clio

Determine if client wants 15 or 90 min consult

Send Calendly Invite to let client schedule their own appointment

Follow up daily until it is determined whether the potential client is or is not in conflict

Conclusion Legal competence from lawyers is of course a requirement, but more and more jurisdictions (including all Canadian provinces) are requiring technological competence. We have to understand trust accounting software, be able to e-file, keep electronic records, and more. We cannot continue to lag so far behind the rest of the business world. It is vital for us to improve our ability to find ways for technology to work for us if we are going to address issues of access to justice or stay competitive in the current economy. Our clients and, more importantly, our sanity depend on our ability to shift mundane tasks from our to-do lists to something much more sensible and efficient.

Send Engagement Letter

Weave in Technology Figure 1.3 shows an example of how Figure 1.1 could be improved weaving in technology. When we identify an area to improve, we get to work to find a way to weave in technology. Occasionally, a proposed “solution” causes more pain points than cost savings (either time or money). That is certainly frustrating, but benefits gained from technologies we’ve implemented, thereby improving our efficiency, vastly outweigh the thrown away time. Moreover, not only have we improved our efficiency, but we’ve created consistency in our clients’ experience.

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The Covid-19 pandemic has heavily influenced people’s day-to-day activities. Offering in-person help, often considered the gold standard for providing people with access to justice, is never without its challenges. Current public health and safety concerns coupled with limited access to some public spaces (such as courthouses and libraries) have made this service delivery model even more challenging. While there is no replacement for one-on-one in-person contact, PLEA has taken the opportunity provided by Department of Justice Canada funding for Covid-19-related projects to create new resources that can help to at least partially fill that gap. Our Covid-19 Legal Information project has two major components: “How to” videos to enhance the self-help available on Family Law Saskatchewan ( and an online safety planning tool for people experiencing intimate partner violence.

Because of the interactive nature of the tools on Family Law Saskatchewan, users are unable to browse the tools in advance to see how they work and what is involved. The videos would address this issue by giving potential users a look at the tool in action based on specific real-life case examples. The online pathway PLEA is creating for people experiencing intimate partner violence will provide support to this vulnerable and often isolated segment of the population without them having to leave their home.

By adding these features to our existing resources and tools we will be able to more effectively address legal information needs during the pandemic and beyond. A preference for accessing legal information and help remotely has been a longstanding trend and we expect this trend will be accelerated by people’s experiences during Covid-19. PLEA also has two other ongoing projects that are of particular interest during the Covid-19 pandemic. Numerous stressors associated with the pandemic, including economic hardship, absent social supports, isolation and remote work environments, can result in increased violence and harassment including sexual violence and sexual harassment. PLEA’s Listen Project https://listen. provides up to four hours of free legal advice to people who have experienced sexual violence or sexual harassment. The incident must have occurred in Saskatchewan. There are no other limitations to eligibility. The incident does not need to have been reported to the police. The project

is available to individuals of any age, sex or gender, regardless of income. The Listen Project is funded by the Department of Justice Canada and administered by PLEA in partnership with the Saskatchewan Ministry of Justice. PLEA’s other project, the Shift Project, is currently being launched. Shift is both a legal advice and a PLEI (Public Legal Education and Information) project. The PLEI component of the project consists of a dedicated website to provide plain-language legal information about workplace sexual harassment. The Shift Project’s legal advice program is available to anyone who has experienced sexual harassment in a workplace in Saskatchewan. Individuals will be able to receive up to four hours of free legal advice from a private bar lawyer. The Shift Project is funded by the Department of Justice through the Sexual Harassment in the Workplace fund. Both of these projects have the builtin flexibility to provide services and support even when in-person contact is not possible. The programs can be contacted online or by email, tollfree phone or text. Appointments with lawyers can be conducted by phone, email or video-conferencing technology. These projects are examples of how during these times PLEA, like numerous other service agencies, is focusing on alternate means to deliver support to the people we serve so that we can meet growing and changing needs during these unprecedented times.

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PROFILE OF JUDGE MICHELLE R. BRASS carpenter but also served as the Chief of Peepeekisis. Then in 1954, he was appointed Indian Agent in Loon Lake, one of only two Indigenous Indian agents in Saskatchewan at the time.

Michelle comes from a long line of public servants with generations of her family contributing to the development of many Saskatchewan communities. She has thus enjoyed quite a diverse background of experience, teachings, and perspectives. Born in Balcarres, Saskatchewan, as a young child she lived on both the Indian reserves of her paternal grandparents, Campbell and Sarah Brass of Peepeekisis, and of her maternal grandparents, Roger and Rena Stevenson of Cowessess. Campbell’s father, Alexander Brass, had moved from the Key Reserve to Peepeekisis Reserve to act as an interpreter for the farm instructors, eventually taking up farming himself. Alex was also a decorated war veteran who had fought on the front lines in France in World War I. Alex’s own father, George Brass, had been a signatory witness to the creation of Treaty 4 which territory was ultimately opened up to the wave of West-migrating settlers. Campbell, like his father, became a farmer and


Campbell and Sarah instilled in their seven children the importance of education and a solid work ethic. Although five of their children were to endure the infamous Indian Residential School System, all seven went on to obtain post-secondary education and/or challenging and productive work assignments. Many of Michelle’s aunts, uncles, cousins and siblings worked and continue to work in universities, government, hospitals, and business or as advisors and artists. Michelle’s own father, Gregory Brass, was at different times in his work life an administrator, a mediator, an RCMP officer, an alcohol treatment worker, a truck driver - and most importantly for Michelle and her siblings, a nurturing father. Through example and personal conviction, he communicated the importance of education and hard work to his children. Michelle also credits her father with promoting self-respect and respect for others, resilience, and a good sense of humour no matter what.

Michelle’s education began in Peepeekisis Day School and continued through various moves to schools in Calgary, Edmonton, Balcarres, Regina, and Whitehorse with a return to Scott Collegiate in Regina to complete her high school. From the age of 12 on, she had also worked at numerous parttime jobs such as paper delivery girl for the Leader Post, hotel chambermaid, northern BC tree planter, security guard at the Samson Band office and London, England’s Earl’s Court and Olympia Exhibition Halls, and as a summer fillin at Syncrude Oil in Fort McMurray. From the ages of 21 to 27, Michelle drove night shift taxi intermittently in Regina while attending university. It was a job that proved to be a significant practical counter-weight to her academic studies in psychology and philosophy, graduating with a Bachelor of Arts (Adv) in 1991. These were invaluable experiences for which she feels


grateful as they very much broadened and deepened her understanding of the human condition and led to her volunteering over the years with such organizations as the Regina Open Door Society, the Sakewewak Artists’ Collective, the Minwaashin Lodge, and the Saw Gallery. After a short stint with the Regina Parks Department, Michelle accepted a job as a City transit operator. But with every route completion, she began to think more and more about an earlier address by Professor Daniel Ish, Dean of the College of Law, University of Saskatchewan where at the Saskatchewan Indian Federated College of the University of Regina he encouraged Indigenous students to seriously consider a career in law. And so, in 1994, Michelle entered law school at the University of Saskatchewan, graduated in 1997, completed her articles with Saskatchewan Justice and received her call to the bar in 1998. After a year at the Constitutional Law Branch, she joined the Federal Department of Justice in Ottawa where her prime focus involved legal work (e.g., legal opinions, draft settlements) related to mediation, negotiation, and project management. In 2014, Michelle returned home to take up a position with the Saskatchewan Water Security Agency. In 2015, she opened up her own practise, Brass Law, concentrating on Aboriginal Law, Water Law, and Specific Claims. She also both taught Aboriginal Property Law and implemented the Gladue Awareness Project for the Native Law Centre at the University of Saskatchewan. On November 22, 2018, Michelle was appointed to the Saskatchewan Provincial Court to sit in Estevan. As luck would have it, her court circuit falls within her traditional treaty territory. Michelle believes she brings a wide diversity of knowledge, experience, and

skill to the Provincial Court. Having practised law for over 20 years, she has developed critical insight into and understanding of people who have been or are likely to be exposed to the justice system. She has walked in more than one world. Her travels throughout Canada, the U.S., Europe, Australia and Asia have greatly informed her world view. Michelle brings not only important insight and experience to the

Court but also common sense and a fair and balanced approach to the application of the law as it affects those who come before her and the communities in which they live.

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In May, the University of Saskatchewan announced that it would implement a remotely delivered fall 2020 semester. In early September, the University announced that the winter 2021 semester would also be remotely conducted. The College of Law is now approximately two months into the fall semester – how has this adjustment been for students and faculty? After polling a small group of law students and faculty, it is clear that adjusting to this new medium of learning has its share of challenges and benefits. Students have split opinions on the isolating factors of online learning. Some students report online learning to be lonely and lacking community. Most do not turn on their camera while they are in class, so students do not even see each other’s faces. There is also no socializing before or after class. This can have a very isolating effect. Others find online learning to both force and incentivise them to communicate and socialize with peers. One facilitator of this is the ‘break-out group’ function on Zoom and Webex. This randomly splits the class up into numbered groups for a specific amount of time. While this can sometimes be an awkward and incredibly forced interaction, it can also be very fruitful. Because of the randomized selection, students never know who they will be placed with and inevitably will end up interacting


with peers they might not normally know. There is also a differing opinion among students about the quality of online learning. Some students note how much more difficult it is to interject, ask questions, and have a class discussion via online learning. There is also little to no organic discussion among students that would usually take place before, during, or after class. However, other students perceive the online platform to be very accessible, flexible, and adaptable for their lives. This is especially true among mature students and those who tend to be more independent learners. After polling students, it is clear that their reception of online learning is highly contextual, depending on nuances like residence, financial status, technological capacity, learning style, among other factors. While students are the receptors of this experimental semester, faculty are those implementing it. As with students, faculty have experienced both challenges and benefits to online learning. Not all professors are technologically fluent, and so learning how to deliver remote classes has been extremely stressful for some. While the University has been diligent in providing resources for professors to familiarize themselves with online platforms, it is ultimately the professor who has to run the classroom and troubleshoot problems in real time. As with students, instructors are also subject to home constraints, and must split the household (and bandwidth) with spouses and children who often have their own online meetings and

classes. Professors must also have their cameras on to effectively teach – this means that they must be sure that their home setup is appropriate and not distracting to students. It also means that instructors must take extra care to be sure there are no interruptions. Students do not have to worry about this as much because the majority of students leave their cameras off. Indeed, professors report that a major strain on teaching has been that most students never turn their cameras on and never unmute themselves. This means that sometimes professors are essentially lecturing to their own video, making it difficult for them to read the classroom, read facial expressions and gauge whether or not the students are grasping the material. Despite these many challenges to online learning, instructors have also noted some benefits. Webex and Zoom have functionality that would not be possible or efficient in an inclass setting. These functionalities include things like polling questions – where an instructor sends out questions to the class and students choose an answer. The data goes back to the instructor and they can see the results. There is also the breakout function. This is much more efficient than in-class group work, which often takes up a lot of time to set up. The chat function is also helpful as it allows students to ask questions to the whole class, or to anyone privately, including the professor. Therefore, students who generally do not like to ask questions in front of the class can ask questions privately to the professor while still in class. With Zoom and Webex getting


updated almost weekly, it is likely that even more classroom-enriching functionality will be added. After polling students and faculty, it is clear that adjusting to this new medium of learning has had its share of challenges as well as benefits and that these are highly contextual. With at least six more months of online learning, it will be interesting to note how these benefits and challenges evolve as we adjust to this new normal.

The complete suite of tools for family law professionals is now securely in the cloud Learn more at, call 1.800.653.0925 x407 or email Steve at 217 Jessop Avenue • Saskatoon SK S7N 1Y3 p: 306.955.3373 • f: 306.955.3064

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WINTER 2020 33




After her retirement from the Supreme Court, former Chief Justice Beverley McLachlin released her memoir, Truth Be Told: My Journey Through Life and the Law. The book is a fascinating insight into the experiences of the first woman to not only hold that position, but to become the longest-serving chief justice in the history of Canada. McLachlin begins with her ordinary upbringing in Pincher Creek, Alberta. She recounts her early days on the family ranch in rural Alberta and her love of the local library, in which she discovered a world beyond her farming community. Attracted at first to the study of philosophy, it was her first husband Rory who initially inspired McLachlin to pursue the practice of law. In her early years as an articling student and lawyer, she encountered sexism and exclusion at numerous turns. Overcoming this through sheer determination, she transitioned from a professor to a judge, quickly climbing the ladder to the Supreme Court of British Columbia. Her appointment in 1989 to the Supreme Court of Canada occurred during a period in which McLachlin struggled with the death of her husband, who passed after a long fight with cancer. McLachlin’s memoir vividly explores these raw and personal details of her life. 34 BARNOTES

McLachlin uses her memoir to share her perspective on key cases in Canadian history, some of which were informed by her experiences with her dying husband. Most notable, McLachlin speaks of the debate in Rodriguez v British Columbia (AG). In that case she dissented, finding that a prohibition on assisted suicide was contrary to s.7 of the Charter of Rights and Freedoms and was not saved under s.1. Years later, in a decision authored by then-Chief Justice McLachlin, the majority of the Supreme Court came to agree with her position in Rodriquez. The Court reversed its view on assisted dying in Carter v Canada (AG). We are reminded by the memoir throughout that judges are human beings. They bring their life experiences to the cases they decide, which McLachlin concludes is healthy, so long as judges ultimately serve the law. We are also reminded of McLachlin’s innate sense of justice, exemplified in her judgments in some of the most prominent cases in modern times — involving Charter challenges, same-sex marriage, and euthanasia. Truth Be Told reminds us that the law is not just a job — it is a profession, an activity that makes society sustainable. As McLachlin notes, the law allows society to move forward in peace and harmony. In an age of so much disruption, the law offers stability and a principled way to face the problems that surround us. For those interested in Beverley McLachlin’s remarkable life of law and service, Truth Be Told is well worth a read.

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Stay on top of tech trends in the legal profession and gain 5 CPD hours. Dynamic, on-demand videos presented by a panel of knowledgeable speakers will take on existing perceptions of technology and confront emerging challenges. Programs include: 1. BEHIND THE CURTAIN: What Lawyers Should Know and What Clients Expect Monica Goyal, L.P.C.

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