BarNotes Spring 2017

Bar Notes

THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH

SPRING 2017

2017 Distinguished Service Award | Page 18

VOL. 31.3

The Canadian Bar Association Saskatchewan Branch

IN THIS ISSUE

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

BARNOTES Editorial Board

BRANCH NEWS 5

President's Message

BY NEIL ROBERTSON, QC

7

Mid-Winter Meeting: A Snapshot

BY CHARMAINE PANKO

HANNAH ZIP Editor Knott den Hollander SCOTT BELL MLT Aikins LLP KATE CRISP Scharfstein Gibbings Walen & Fisher LLP TRISTAN CULHAM MLT Aikins LLP

COMMENTARY 8

Chaos and Confusion

BY DR. BETH BILSON, QC

9

Retrospective: Hockey Arbitration Competition

BY ZINA SCOTT

11 13

Relying on Mortgage Payout Statements

BY K. ANDY CHIANG Potential Legislative Changes: An Opportunity to Let Lawyers Do Their Jobs

BY LANA WICKSTROM

PRO BONO SPOTLIGHT 15

The Gown to Gown Lawyers' Charity Gala

BY CARLY ROMANOW

FROM THE BENCH 21

Ten Years on the Provincial Court

BY JUDGE HUGH HARRADENCE

STUDENT CORNER 25

Law Students Visit the Battlefords

BY LIAM FITZ-GERALD

JARED EPP Robertson Stromberg LLP JACKIE FRANCIS Francis & Company

18

BRANCH AWARDS

Distinguished Service Award Gary Young, QC was awarded the 2017 Distinguished Service Award on February 3, 2017, at the Mid-Winter Meeting in Saskatoon.

ITEMS OF INTEREST Call for Volunteers.............. 12 Save the Date: Branch Annual Meeting....................................... 14 2017 CCCA Conference.......... 17 Call for Nominations: Community Service Award..... 19 Bar Judicial Council Reps........ 24 Calandar of Events................... 27 Moved? ....................................... 27 Advertiser Index ....................... 27

2 BARNOTES

LEAH HOWIE Law Reform Commission of Saskatchewan LINDSAY HJORTH University of Saskatchewan AMJAD MURABIT WMCZ Lawyers MICHAEL SCHERMAN Blake, Cassels & Graydon LLP ALIXANDRA STOICHEFF MLT Aikins LLP JAMES STREETON Wardell Gillis BRENDA HESJE Executive Director CBA Saskatchewan

LAYOUT & DESIGN Katrina Forgrave Graphic Designer

BarNotes is a quarterly publication of CBA Saskatchewan. 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 1,200 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice.

BarNotes is published 4 times per year and circulated to over 1,200 legal professionals. If you are interested in advertising, please contact Brenda Hesje, Executive Director, brenda@cbasask.org. © CBA Saskatchewan 305,135 - 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org

EDITOR’S NOTES

HANNAH ZIP || KNOTT DEN HOLLANDER

I

t seems fitting that the Spring issue of BarNotes is coming out during a time when there is almost no snow on the ground and plus temperatures are melting the snow as I write my very first Editor’s Notes. Spring is here! I am very excited to be taking over as Editor of our esteemed lawyerly publication from the very capable Ashley Smith. I have big shoes to fill, but I am confident that I will do her proud.

This is a great issue for you to enjoy reading, perhaps on a patio while enjoying the unseasonably warm weather.

The President’s Message discusses the importance of volunteerism and the impressive number of hours that lawyers devote to working hard for the community, and he answers the question of why he volunteers with the CBA. Speaking of the importance of volunteerism, a big congratulations to our cover boy Mr. Gary Young, QC on being the recipient of this year’s Distinguished Service Award! Recognition very well deserved by a real leader in our legal community.

Judge Hugh Harradence gives a very candid account of his past ten years at Provincial Court. He describes all of the various Provincial Courtrooms across the province that he has had the pleasure of sitting in throughout the years. I myself have fond, and slightly terrifying, memories of some of my first court appearances as an articling student in the Maple Creek Legion Hall, which he mentions in his article. While reading this article I couldn’t help but picture the furnace room where Provincial Court Judges deliberated next to coffins. You will have to read the article to find out in which town that occurred!

There is also a timely article on the importance of due diligence when requesting mortgage payout statements - a good reminder for those practicing in this area. There are many other articles to enjoy, so start reading!

LETTERS TO THE EDITOR

hrz.kddlaw@sasktel.net

Spring is a time of change and the Editorial Board at BarNotes also hope to make changes to the magazine based on any feedback we receive, so please do not hesitate to contact any of us with any comments or questions you may have.

The Editorial Board works hard to put together a wellrounded, educational and entertaining magazine on a quarterly basis that you all enjoy reading. If anyone is interested in joining the board, please email me. The more the merrier!

There is an interesting article on the Hockey Arbitration competition that two of our UofS Law students participated in, along with an article on a recent visit some law students had to the Battlefords to see what practicing law in smaller urban and rural centers is like. It is nice to read about the passion of law students about to enter into the “arena” of law in the real world. Be sure to check it out!

Lana Wickstrom writes about her transition from lawyer to “Separation Specialist” and how she gave up her membership in the Law Society to assist families going through the separation and divorce process.

Lana makes some very interesting points about the role of lawyers and how to effectively assist former spouses adjust to their new co-parenting roles in nontraditional ways.

SPRING 2017 3

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2014-09-16 4:18 PM

BRANCH NEWS

PRESIDENT’S MESSAGE NEIL ROBERTSON, QC

A

s any who attended will attest, the 2017 Mid-Winter Meeting in Saskatoon was a great success. It was made possible by the organizing committee and over sixty speakers, all of whom volunteered their time and talent. When you are involved in organizing these events, it is both gratifying and inspiring to see how willingly busy lawyers and judges accept the invitation to participate. I want to thank the 2017 MidWinter Chair, Charmaine Panko, and her Committee members: Troy Baril, Leah Bitternose, Chris Lavier, Reché McKeague, Evatt Merchant, Anna Singer, and Chris Veeman, and our Branch staff, Brenda Hesje and Monteen Dent, for their work.

After each Mid-Winter Meeting, the organizing committee usually meets to debrief and celebrate over a meal. I was at one such meeting several years ago when one of the committee members asked each of us why we had volunteered. I can’t recall my answer, but thought later that my answer was unsatisfactory and so gave more thought to the question.

The lawyer who had posed the question was Bill Johnson, QC. I recall being especially impressed that Bill, a senior partner in his firm who had previously reached the pinnacle in leadership in the Canadian Bar Association as its National President, was still volunteering on the Branch MidWinter organizing committee.

With few staff, the Canadian Bar Association can only operate through the volunteer service of its members. There are likely a mix of reasons why people volunteer. I have heard some say that lawyers volunteer with the CBA with the hope of a future QC designation or judicial appointment. But if so, why do so many Queen’s Counsel and Judges continue to volunteer?

A more generous view is that lawyers recognize their duty to give back to their profession and community through voluntary service. And as many will have found, they get back more than they give.

In reflecting on Bill’s question, I thought the answer for both of us might be because of the power of example in parents who had been actively involved in community service. We serve because we were taught to serve by their example.

We tend to emulate the behavior of those we respect and those in leadership positions, from parents to Prime Ministers.

The power of example is strong such that it is vital that those in leadership positions serve as good role models. I have been fortunate throughout my career to have good role models, beginning with my parents, and continuing with my principal, Leslie Shaw, my colleagues, and especially my wife, Magdalene Robertson, QC and our children. Their example and counsel have made me a better lawyer and person than I would otherwise be.

CONTACT THE PRESIDENT

robertson@sasktel.net

I had the opportunity this past January to attend CBA Branch meetings in Winnipeg and Edmonton, including their awards luncheons which celebrated the contributions of lawyers and judges in Alberta and Manitoba.

At the Saskatchewan Mid-Winter Meeting in February, Gary Young, QC was the recipient of the CBA Saskatchewan Distinguished Service Award. This Award serves to not only honour a deserving recipient for a lifetime of service to our profession and community, but who also provides an example of a model lawyer.

In our profession, we are fortunate to have many fine examples to follow. May all of us try to serve in manner that continues this tradition.

SPRING 2017 5

2017 MID-WINTER MEETING SPONSORS

contact@ashlow.com

6 BARNOTES

BRANCH NEWS

MIDWINTER MEETING: A SNAPSHOT CHARMAINE PANKO || PANKO COLLABORATIVE LAW AND MEDIATION

This year’s Mid-Winter Meeting was held in Saskatoon with a record number of exhibitors and presenters from across the country. The conference theme was “Thriving in Complexity” with sessions on substantive legal knowledge, the legal profession itself, and topics pertaining to our health and wellbeing as practitioners.

The conference kicked off with the traditional Breakfast with the Minister but this year we heard not only the current Minister of Justice but also Justice Critic, Nicole Sarauer. Both Minister Wyant and Ms. Sarauer provided an excellent segue to the St. Thomas More College John Stack Lecture on Ethics & Civic Responsibility keynote speaker Harold Johnson. (and we highly recommend you now go out and purchase his book Firewater: How Alcohol is Killing My People (and Yours)) The Barrelmen provided absolutely amazing musical entertainment at the social event Thursday evening.

Many in attendance won door prizes and almost all supported the 50/50 draw; the CBA matched the ticket sales and the winner of the draw donated the funds back, raising more than $2000 for CLASSIC.

It was an action packed two days: in addition to presentations ranging from what to expect when you are expecting (a real estate deal!), to cultural awareness, and updates on various areas of law, the Chief of Police shared statistics and the conference ended with an esteemed panel discussing the issues arising from the legalization of marijuana.

SPECIAL THANKS TO THE 2017 EXHIBITORS AJEFS Canadian Bar Insurance/CBA Financial Chicago Title Insurance Co. ChildView Inc. College of Law, University of Saskatchewan CourtCall Do Process Software Dye & Durham Express Process Serving FCT Information Services Corporation LawyerDoneDeal Corp.

Law Society of Saskatchewan Library Pro Bono Law Saskatchewan Public Legal Education Association SaskTel Staples Business Advantage Stewart Title TitlePLUS VoicePro Technologies

It was a pleasure to be the chair of this year’s planning committee and wish to extend an extra special thank you to the entire committee and all who participated as presenters, sponsors, and exhibitors!

We’ll see you all again next year in Regina!

SPRING 2017 7

COMMENTARY

CHAOS AND CONFUSION DR. BETH BILSON, QC || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN

I

t is sometimes disheartening to observe the high level of public criticism aimed at the legal profession, and even more disheartening to hear of instances of unethical or unpalatable conduct by lawyers that seems to lend some support to those criticisms.

business trip, present their research at a conference or visit the Empire State Building – all of which seemed ambitions easy to fulfill until a short time ago – find that the door has been closed on their intentions.

Closer to home, law students at the University of Saskatchewan, assisted by volunteer lawyers and law professors, conducted a “research-a-thon” on February 4 as part of a national initiative to encourage students to use their skills to conduct research on specific issues of immigration and refugee law that could be relevant for residents, citizens and visitors in Canada who might be affected by the US ban. Approximately 50 of our students – close to one-sixth of the student body – took part in the research day.

US AND CROSS-BORDER TAX IS OUR BUSINESS.

Every now and then, however, lawyers as a profession act in a way that is consistent with the high ethical and professional standards that they formally subscribe to – and I would count among those examples the response of our colleagues in Canada and the United States to the executive order issued by President Trump, in the name of national security, preventing the entry to the United States of persons from seven named countries where a majority of the population is Muslim. Amid the chaos and confusion following the order, hundreds of American lawyers descended on airports and law offices to offer support and legal advice to those affected by the ban and their families. Among the notable results was the speedy commencement of legal proceedings challenging the constitutionality of the ban, which had the result, at least in the short run, of rendering the executive order ineffective.

Though we may take some satisfaction by the orderliness and fairness that has generally characterized the traffic across the border with the United States, these events are a reminder of how quickly a regime that we have relied on can be replaced by one which many people now experience as arbitrary and discriminatory. People now in Canada wishing to visit family members, take a 8 BARNOTES

It is easy to forget, too, in the busyness that surrounds our daily professional lives, the role of lawyers and the legal profession as a whole as a bulwark against arbitrariness and as advocates for the rules of law. In the current climate of fearfulness about security, it is more important than ever that lawyers use their skill and knowledge to protect the rights and dignity of neighbours faced with ever more stringent restrictions on their ability to live their lives as they wish.

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COMMENTARY

RETROSPECTIVE: HOCKEY ARBITRATION COMPETITION OF CANADA

We became aware of the Hockey Arbitration Competition of Canada, and were immediately interested to learn more.

ZINA SCOTT || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN

M

y name is Zina Scott, and I am a third-year law student at the University of Saskatchewan College of Law. To me, the final year of law school is about enjoying the last fleeting months of student-life, and taking advantage of opportunities to explore academic interests as fully as possible before entering the “arena” that is the real world.

My friend and fellow third-year law student Ashton Butler and I share an interest in alternative dispute resolution and oral advocacy. During our law school careers, Ashton and I competed in the Phillip C. Jessup International Law Moot Court Competition and the Donald G.H. Bowman National Tax Moot, respectively. We were also partners in the annual Dentons Negotiation Competition held at the College of Law in both 2015 and 2016, where we acted as lawyers negotiating on behalf of a shared client during a timed simulation.

At the Dentons competition, we placed second in both years. So, in sum, you could say that we are fans of “Getting to Yes.”

with detailed NHL statistics and learning hockey lingo, drafting our arguments with as much precision and clarity as we could before we submitted them for evaluation.

At the Competition, we participated in three separate arbitration simulations, representing either a player or a team, at the Jackman Law Building of the University of Toronto.

When Brian Burke, Harvard Law School graduate and President of the Calgary Flames watched the final round of the Competition at the Westin Harbour Castle Hotel, he commented that the simulated arbitration was comparable to a real NHL player salary arbitration. From the audience, Ashton and I observed that the arbitration simulation had the intensity of a “penalty kill in overtime,” with a lot of questions from the arbitration panel and tough rebuttals from the opposing teams.

After the competition was over, we were fortunate to have the opportunity to attend the PrimeTime Sports Management Conference. The line up of speakers was impressive.

Over the summer months, we We enjoyed a full day of learning looked for an opportunity to about the intricacies of practicing strengthen our dispute resolution sports management law and meeting skills in a new and challenging other law students from across the environment.

We became country. We heard stories and advice Ashton Butler and Zina Scott from NHL, NFL and MLB player aware of the Hockey Arbitration Competition of Canada, and were agents, Vice Presidents, counsel to immediately interested to learn more. It was a new and NHL clubs in salary arbitration, and many others. intimidating area for us. Despite our Canadian roots, we While Ashton and I were not one of the teams competing had little exposure to the sport in general, and even less to in the final rounds, we left the competition having “scored sports law and salary arbitration. In our preparation, we our goal” of supplementing our legal educations through asked ourselves, “What business do two inexperienced exposure to sports law and to arbitration as a tool for law students who know nothing about hockey have dispute resolution. We would like to extend our sincere participating in an NHL player salary arbitration thanks to the College of Law and McDougall Gauley LLP competition?” Despite our reservations, we decided to for generously sponsoring our participation in these take on the challenge and “laced up our skates.” events. Without their support, we would not have been Our experience preparing for and participating in the Competition was unlike anything that we have ever done in law school. During the weeks leading up to our trip to Toronto, we worked on our briefs - with the help of a very patient first-year law student and hockey enthusiast, Cory Kapeller. We “faced off” with the challenges of engaging

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10 BARNOTES

COMMENTARY

RELYING ON MORTGAGE PAYOUT STATEMENTS K. ANDY CHIANG Introduction

What do you do if, after making payment (on your client’s behalf) to a bank in accordance with the bank’s mortgage payout statement, you discover that the statement was inaccurate and the bank refuses to release its security unless further payment is made? This situation was considered in Mohan v Bank of Montreal, 2016 ONSC 3862, 2016 CarswellOnt 9331 (WL) and the Court held that the Bank of Montreal (“BMO”) was estopped from refusing to discharge its mortgage registration. This holding depended, however, on an unusual set of facts.

Mohan v Bank of Montreal

As solicitor for the vendor, Mohan obtained a copy of title which showed that BMO had registered a mortgage in 2006. At closing, Mohan gave an undertaking to the purchaser’s solicitor to (i) use the purchase funds to pay off BMO’s mortgage; and (ii) cause BMO’s mortgage to be discharged from the title.

In Mohan’s request for a payout statement from BMO, he did not refer to the mortgage by registration number.

Instead, he referred only to BMO’s “first charge against the property” (the title showed that BMO’s mortgage was first in priority). Subsequently, Mohan delivered a certified cheque to BMO to satisfy the mortgage debt.

Unbeknownst to Mohan, the title did not, due to an inadvertent error in the land registry, indicate that BMO had registered a prior mortgage in 2004. Mohan was also unaware that BMO’s payout statement pertained to amounts owing on the 2004 mortgage, not the 2006 mortgage.

BMO applied Mohan’s payment to the 2004 mortgage.

When Mohan followed up with BMO regarding discharge of the 2006 mortgage, BMO (for the first time) informed Mohan about the 2004 mortgage. BMO indicated that it would not discharge the 2006 mortgage until it was paid in full.

The Court found that Mohan knew nothing about the

2004 mortgage at the time he acted. Although Mohan’s client had knowledge of both mortgages, this knowledge was not shared with Mohan until after closing. The Court concluded as follows: 72 Mr. Mohan acted reasonably in relying on BMO’s discharge statement. He searched title.

He obtained a copy of the Land Titles Parcel Register. He relied on title as set out in the Land Titles Parcel Register, as he was entitled to do. He requested a payout statement….

BMO responded by providing a payout statement. Mr. Mohan, in good faith, dealt with BMO and relied on the payout statement.

BMO’s representative agreed on cross examination that Mr. Mohan… had no other way of determining from the correspondence and Parcel Register that the 2004 mortgage remained outstanding or even bound the property.

73 Further, Mr. Mohan’s reliance on the statement was to his detriment. He gave a solicitor’s undertaking to the purchaser that the mortgages registered against the property would be discharged. He did all he could reasonably do to fulfill that obligation. He is bound by his undertaking should he not be able to fulfill it. BMO prevents him from fulfilling his undertaking as it will not issue a discharge of the 2006 mortgage. Hence, Mr. Mohan brings this Application. …

77 … [A]t the time that BMO gave its payout statement, it was the only person with the knowledge to, and who could have avoided the problem the parties now face. It could have done so with a two word response to Mr. Mohan’s request for a mortgage payout statement: “Which mortgage?”

The Court ordered that the 2006 mortgage be discharged.

SPRING 2017 11

COMMENTARY

More Case Law

Conclusion

"Mohan was recently cited by the Saskatchewan Court of Queen's Bench in Halpape v Bank of Montreal, 2017 SKQB 23. Faced with facts analogous to Mohan's, the Court in Halpape ordered that a BMO enforcement charge against a piece of real property be discharged.

Please note that, at the time of writing this article, the appeal period for Halpape had not expired.

Returning to the initial question, obviously your response would depend on your specific situation. For instance, when did you request the payout statement?

If you made the request X days in advance of the payout date, the bank might have undertaken to discharge its mortgage upon receipt of the stated payout amount.

Although highly unlikely, were you dealing with a bank lawyer rather than a non-lawyer employee? If so, trust conditions might be less difficult to enforce (see the Code of Professional Conduct, s. 7.2-11, Commentary [6]).

Other cases have also addressed inaccurate payout statements, including: •

Ahaus Developments Ltd. v Savage, [1994] 8 WWR 131 (BC CA). The Court of Appeal stated “[w]here it is shown that the mortgagor or his or her agent has detrimentally relied on a pay-out statement by paying the amount indicated on that statement, that person is entitled to a discharge of the mortgage” (ibid at para 46).

• Cherrington v Montreal Trust Co. of Canada, [1990] 6 WWR 381 (BC SC). The Court apportioned the loss flowing from an inaccurate payout statement, which was prepared by the vendor’s mortgagee, equally between the mortgagee and the vendor’s solicitor. The Court reasoned that although the mortgagee was negligent in inviting the solicitor to rely upon the statement, the solicitor should have realized, based on the statement’s contents, that it might be inaccurate.

• Piché v Niagara Credit Union Ltd. (1988), 2 RPR (2d) 78 (Ont District Court). The credit union quoted a payout amount to the mortgagor’s solicitor but failed to mention that an early payout penalty would be charged. Subsequently, the credit union accepted the payout funds but refused to discharge the mortgage registration unless the penalty was paid. The Court held that the credit union was estopped from refusing to discharge the mortgage registration.

For recent cases where fraud was involved, see Toronto Dominion Bank v Kevin I. Peddie Professional Corp., 2016 ABQB 26, 34 Alta LR (6th) 183; and Normak Investments Ltd. v Belciug, 2015 BCSC 700, 56 RPR (5th) 84.

12 BARNOTES

If you do make an application to Court, whether the cases above would support your application depends partially on: (i) whether you relied upon the payout statement in good faith and to your detriment; and (ii) whether you had no way of knowing that the quoted payout amount would not be sufficient to satisfy the mortgage debt.

Before making an application, however, try escalating the matter to a more senior bank employee. Refer to the Canadian Bankers Association's “Contract List for Matters Involving Mortgage Discharge s”, which is available in the Members’ Section of the Law Society of Saskatchewan website, for contacts at major banks to whom you can escalate your matter.

K. Andy Chiang is a former associate at Mckercher LLP and is currently a stay-at-home dad. He intends to resume the practice of law in several years.

CALL FOR VOLUNTEERS Information: www.cbasask.org

COMMENTARY

POTENTIAL LEGISLATIVE CHANGES: AN OPPORTUNITY TO LET LAWYERS DO THEIR JOBS LANA WICKSTROM || SEPARATION SPECIALIST

W

hen I was in private practice as a family law lawyer, I so often found myself in our firm’s interview rooms with clients who were asking questions like: • How should I tell my kids about this and what should I say?

• How do you create a parenting plan?

• How are we supposed to agree to a schedule when we can’t even exchange a text without fighting?

• Is he allowed to just bring his new girlfriend anywhere he wants?

• I know the law doesn’t care about her affair but how am I going to stop focusing on it when she flaunts him in my face?

Because I have education, training and work experience as a social worker, and specifically as a child protection worker, in addition to specialized communication skills and parenting coordination training and education including mediation and collaborative law, I felt confident that I was qualified to provide advice to clients on these issues. Yet, despite that confidence, I was pretty sure that the Law Society wouldn’t agree that it was the kind of advice that I could or should be giving out under a retainer for legal services, let alone be given blessing to do so at a rate of $300 an hour or more.

Yet this was the kind of advice, in addition to basic legal information, that the vast majority of my clients were desperately wanting – from both me and my other family law lawyer colleagues – but not able to find. I knew that observation to be true because it is an often shared lament in this industry about the role family law lawyers are being asked to play when clients pose these questions followed quickly with, “I know that this isn’t your job and that this is costing me a fortune to ask you about this stuff but there is just no one else that I can talk to or who could help me.”

To me, what so many clients seemed starving for was education, support, coaching and practical, informed advice to help them navigate their separations. Clients wanted information about how to “get started”, insightful discussions about what their options are, advice about how to talk to and support their children during this process, guidance to help them identify the need for and find appropriate mental health or financial professionals to help them, best practice recommendations about how to initiate, receive and respond to communication, in person or otherwise, from their former spouses and advice about how to create and implement a parenting plan. Clients were looking for help with all the “stuff” about their relationship breakdown that, when left unattended, either got in the way of being able to actually get to the legal advice they needed or exacerbated and increased their need for it.

And of course, most family law lawyers feel uncomfortable and ill equipped to provide this kind of education, support and advice to their clients; it’s not the training they received in law school. Some lawyers may feel that their duty and ethical obligation not to practice outside of their own knowledge or expertise extends to not providing parenting advice, communication coaching or co-parenting best practices, if they don’t have any relevant training or education in these regards.

Like many other family law lawyers, I could genuinely recognize that separate and additional professional capacities were needed to help clients navigate the answers to these often paralyzing questions they had about their separations – questions they didn’t need a lawyer to answer. Yet, because no such resources were readily accessible to our clients, I, like many other family law lawyers, felt morally obligated to do what I could to assist on these issues in whatever narrow or limited capacity I could as their lawyer.

I broke away from the private practice of law and stepped back from my Law Society regulation and membership in 2015 to start offering exactly these kinds of services to clients as a Separation Specialist. It was the final step for me in acknowledging that this was the way that I wanted to service clients and give tribute to my belief that legal advice is only one of the tools that our clients need to navigate through this deeply

SPRING 2017 13

COMMENTARY

personal and consuming life transition. I now assist clients in navigating their separation by offering them credible legal information education, separation and co-parenting coaching and mediation as they process and progress through their separation. At the core of my business plan lies a belief that if separating and divorcing people receive accessible, individualized and credible education, support and advice on separation and co-parenting best practices up front, that their immediate or future needs for legal advice, as opposed to legal information, will diminish. In turn, their opportunities for conflict will then also diminish. In the end, for me, I want to see better outcomes for children of separation and divorce.

and law, providing they have the requisite experience and knowledge to work with separation and divorce clientele. For me, the priority would be for this kind of support to be available for separating and divorcing people whether or not they are applying to court, and potentially as a pre-requisite to doing so. This proposed discussion seems compatible to what we already know about many family law clients and what we already know about longstanding access to justice concerns, including accessibility and affordability.

I think that it is also generally known that when clients struggle with these issues without accessible, professional support, In the it eventually becomes consuming for clients and, in turn, readily blocks a end, for me, lawyer’s capacity to provide effective Of additional benefit to me is that I see my I want to see legal services. In yet other instances, the provision of these services as a Separation Specialist to be my contribution to access better outcomes consuming nature of these issues, when left to only lawyers to shoulder, ends to justice issues that are opined openly for children of up chasing valuable and highly needed and consistently in provincial and federal separation and lawyers from the profession. With these reports from all walks in the legal world two observations, perhaps the profession including Department of Justices and the divorce. may welcome the possibility for this CBA including concerns about the cost, potential legislative change to make a structure and accessibility of legal services. wish come true; being able to retain competent and I encourage family law lawyers and the profession valuable lawyers to be able to do what law school generally to apply what we already know about the properly educated, trained and prepared them to do clients they serve when completing the Ministry of the practice of law.

Justice’s survey about the possibility of mandatory For more information on how I educate, support and appropriate resolution, which could include, but coach clients to separate or divorce with dignity, please is not limited to, mediation. When I consider this visit me at www.lanawickstrom.com or email me at issue, I see the opportunity for families to receive an lana@lanawickstrom.com. expansive variety of support that we already know they desperately want and need, all of which could, and should, come from a diverse group of professionals with backgrounds in finance, social work, mediation, mental health (including counselling or therapy),

2017 ANNUAL MEETING | June 15, 2017 | 2pm Double Tree by Hilton,1975 Broad St, Regina, SK S4P 1Y1

14 BARNOTES

PRO BONO SPOTLIGHT

THE GOWN TO GOWN LAWYERS' CHARITY GALA CARLY ROMANOW || PRO BONO LAW SASKATCHEWAN

T

he 8th Annual Gown to Gown Lawyers’ Charity Gala was held in Regina at the Doubletree by Hilton on January 27, 2017. The event is one that is held annually, rotating between Regina and Saskatoon, and benefits Pro Bono Law Saskatchewan and CLASSIC respectively. The proceeds from this year’s gala went to Pro Bono Law Saskatchewan.

We had a great evening of entertainment. The Honourable Mr. Justice Richards did a fantastic job of entertaining the crowd as Master of Ceremonies.

The Jack Semple Band brought the crowd to the dance floor following the program. As always, Jack and his band were phenomenal and played for a packed dance floor.

The 2016 Pro Bono Service Award was presented at the event. The Pro Bono Service Award is an annual award presented in recognition of the contribution of lawyers in Saskatchewan to supporting access to justice for persons of limited means. The award is presented jointly by the Law Society of Saskatchewan and Pro Bono Law Saskatchewan to recognize outstanding pro bono service in any or of all of the following activities: (1) delivering pro bono legal services; (2) assisting with the establishment of pro bono programs; (3) coordinating pro bono services; and (4) education and advocacy to promote a pro bono culture.

herself available on a regular basis to provide legal advice and assistance to persons who cannot access legal aid or private counsel at the Prince Albert Free Legal Clinic for nearly nine years. She has also been instrumental in paving the way for children to have independent counsel in Family Service Matters.

Randi became involved with the Child & Youth Panel through Pro Bono Law Saskatchewan in 2008. Thank you Randi for your amazing contributions.

The second nominee is Tom Baldry: Tom Baldry is an associate with KMP North in Saskatoon. Tom has a B.A. with High Honours in Economics, a Masters of Economics, and a Juris Doctor from the University of Saskatchewan. As a law student he was involved with CLASSIC (Community Legal Assistance Services for Saskatoon Inner City) and participated in CLASSIC’s Intensive Clinical Law Practicum. He has been a volunteer with the Legal Advice Clinic operated

by CLASSIC since he was called to the bar in 2015.

His nominators at CLASSIC have expressed an appreciation of his understanding of their philosophy of client service as well as his awareness of their operations. They have described Tom as one who epitomizes that which they aim to do - foster a social justice and pro bono ethic in their students.

The following were the nominees for the 2016 Pro Bono Service Award:

The final nominees have been nominated as a group.

Sandra Bobyk, Barbara Mysko, and Katherine Roy have been nominated for their pro bono service in the immigration area. Sandra, Barbara and Katherine were awarded the 2016 Pro Bono Service Award.

Randi has been a volunteer with Pro Bono Law Saskatchewan since its inception. She has made

Barbara Mysko is Counsel with the Constitutional Law Division, Ministry of Justice. She holds a B.A. with High Honours in International Studies from the University of Saskatchewan, a Master of Arts in International Development Studies from Dalhousie University and B.C.L/LL.B. with Distinction from McGill University. Barbara is a volunteer for the ALS

The first nominee is Randi Arnot: Randi Arnot is a graduate of the University of Saskatchewan and holds a B.A. in Political Science and an LL.B. from the College of Law. She completed her articles in Regina in 1984 and since that time has been a private practitioner in Prince Albert. She is a senior partner with Arnot Heffernan Slobodian and is well recognized as an experienced litigator, mediator and collaborative lawyer.

Sandra Bobyk holds a B.A. with High Honours and an LL.B. from the University of Saskatchewan. She is a Crown Counsel, for the Public Guardian and Trustee of Saskatchewan, within the Ministry of Justice.

SPRING 2017 15

T:10�

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Š 2016 Mercedes-Benz Canada Inc. 16 BARNOTES

PRO BONO SPOTLIGHT

Society of Saskatchewan and is a fitness instructor at the YWCA. She has been actively involved with the CBA and is a past Board Member of Conflict Resolution Saskatchewan.

Katherine Roy is Counsel with the Constitutional Law Division, Ministry of Justice. She holds a B.A. with Distinction from McGill University and an LL.B. from the University of Saskatchewan. She has travelled extensively and has made numerous volunteer contributions both abroad and at home.

She is currently a board member for the Regina Bar Association.

In addition to their work with the Ministry of Justice and their involvement in the legal community and the larger community, these three ladies are all long time volunteers with Pro Bono Law Saskatchewan.

Sandra, Barbara and Katherine have all been volunteers with Pro Bono Law Saskatchewan’s Immigration & Refugee Panel since 2009, providing full representation to newcomers involved in immigration and refugee processes in Saskatchewan.

Over the years they have taken on numerous clients,

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appearing on their behalf in front of the Immigration and Refugee Board as well as the Immigration and Refugee Appeals Division.

Award recipients Barbara Mysko and Katherine Roy, (missing Sandra Bobyk) with award presenter Craig Zawada, QC Thanks to everyone who came to the Gala, and we look forward to next year’s Gala being held in Saskatoon and hosted by CLASSIC!

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SPRING 2017 17

BRANCH AWARDS

CELEBRATING OUR VERY BEST 2017 DISTINGUISHED SERVICE AWARD KIM ANDERSON, QC || ROBERTSON STROMBERG LLP

T

he CBA Distinguished Service Award recognizes contributions and/or achievements by members of the Saskatchewan Branch to the legal profession, the law or development of the law.

A review of the names of those who have received this award since 1989 discloses: (a) That each has served the people of this province;

(b) That each has served this profession well; and (c) That each is, or was, indeed distinguished.

So it is with this year’s recipient, my colleague and friend, Gary Young, QC.

A review of Gary’s caseload over the years leaves no doubt as to his impact on the profession as lawyer and advocate. Cases tended by Gary over the years have involved: (a) Disastrous flooding which occurred at Cigar Lake;

(b) A tragic helicopter crash in the Republic of Kyrgyzstan; (c) A catastrophic explosion at Saskatchewan’s largest oil refinery; (d) Director’s liability arising from the legal battles surrounding Hollinger International Inc.; (e) The liability of tobacco companies for health care costs arising from the use of tobacco; and

18 BARNOTES

(f)

An inquiry into the presence of cryptosporidium in the drinking water supply of North Battleford.

And, two matters with a degree of personal significance:

(g) More recently, Gary’s involvement as the head and public face of a competent and committed team, which conducted the legal portion of the SaskPower Smart Meter review; and (h) Perhaps appropriately as we are just past the fifteenth anniversary of Gary’s role as lead counsel during the months which preceded, and the altogether too short time spent before the Supreme Court of Canada in presenting the successful argument for the appellant in Housen v. Nikolaisen.

According to an article I read last week, this is the fourth most cited case recently in Canadian jurisprudence.

Gary would want me to take a minute to mention the other counsel who were present in that courtroom in Ottawa that day – His Honour Judge Bob Lane, Denis Quon, Mike Morris and Gerry Gerand, QC. In addition to his leadership as lawyer and advocate, Gary has contributed significantly to the profession. He has spent countless hours serving as an instructor, mentor and presenter at courses, seminars and institutes over the years.

Gary has, among other things, been: (a) A member of the National Executive Committee of the Canadian Bar Association;

(b) A member of the Scholarships and Awards

committee for the Saskatchewan Branch; (c) A member of the Federal Judicial Advisory Panel; and (d) Most significantly as

President of the Saskatchewan Branch of the Canadian Bar Association.

During his time as President, fittingly it seems today, Gary was instrumental in the creation of the Distinguished Service Award.

Most recently, Gary has become an invited member of the Supreme Court Advocacy Institute, a program which provides counsel intending to appear before that court advocacy advice and an opportunity to moot their case before experienced appellate counsel.

Ever thorough, Gary took time to check in on me earlier this week to be sure I didn’t need anything more from him to discharge my duties. During the course of that conversation, he took special care to remind me that this is the DISTINGUISHED, and not the LONG service award. I am not sure why he was sensitive about the subject.

While I took note and agreed that the concepts are distinct, there is a degree of interrelationship.

BRANCH AWARDS And accordingly, it is not only appropriate (and perhaps self serving of me to note) that I was not yet admitted to the Bar when Gary Young was elected president of this association.

Gary’s service to this body and to the profession has thus been BOTH long and distinguished, something of which he should truly be proud.

Please join me in first, thanking Gary’s spouse Carol, for being here today, and for her long-time support of Gary... and join me now, in expressing our congratulations to Gary Young,QC on receiving the 2017 CBA Saskatchewan Distinguished Service Award.

Editor's Note: Thank you to Kim Anderson for providing his introductory comments for Gary at the Distingjished Service Award Luncheon on February 3rd in Saskatoon.

Gary Young, QC with CBA Saskatchewan President Neil Robertson, QC (left) Kim Anderson, QC (right)

FOR MORE INFORMATION AND A NOMINATION FORM PLEASE VISIT WWW.CBASASK.ORG

"EXCEPTIONAL CONTRIBUTIONS AND ACHIEVEMENTS USING VOLUNTEER SKILLS FOR THE BETTERMENT OF THE COMMUNITY." Does this describe a CBA member you know?

The 2017 Community Service Award celebrates CBA Saskatchewan members for excellence in community. Nominees have made exceptional contributions and/or achievements using volunteer skills for the betterment of the community or a non-profit organization and this is your opportunity to celebrate that contribution.

SPRING 2017 19

20 BARNOTES

FROM THE BENCH

TEN YEARS ON THE PROVINCIAL COURT

JUDGE HUGH HARRADENCE || PROVINCIAL COURT OF SASKATCHEWAN

W

hen I was asked by the Court’s representative on the CBA Council, His Honour Judge Pat Reis, to write an article for the BarNotes I thought, why not? Being a past president and supporter of the Branch I felt it was my obligation. Then reality struck. What could I possible write about that would be of interest to the Bar?

I decided, for better or worse, to write on some of my experiences and observations since being appointed.

On December 12, 2006, I received a call from the Minister of Justice confirming my appointment.

Shortly after, my dear friend and well respected forensic psychiatrist, the late Dr. Robin Menzies, called saying “I have Judge Gray on my knee” (Judge Marilyn Gray was Robin’s wife. She and I were appointed on the same day). Then I received a telephone message from another of my new judge colleagues. She called me “brother” and said “this is your sister calling to congratulate you”. It was beginning to sink in.

I was thrilled to be taking on a new challenge and serving the people of Saskatchewan, but at the same time I was terrified at not knowing how my life would change. I thought of myself as an active member of the bar, a sitting bencher and a busy practitioner. I loved the world of advocacy.

I was in for a little bit of a surprise.

The first day, January 9, 2007, I was to sit on my own, the Courthouse staff went on strike.

(I have convinced myself that there was no connection between these two events, but I’m not sure.) The staff remained on strike for nearly a month. This taught me two valuable lessons that have remained with me for the last ten years. Firstly, the Clerks and administrative support staff of the Provincial Court are a group of highly dedicated, hardworking and skilled individuals, without them the Court could not function.

Secondly, the strike demonstrated for me the importance of judicial independence not just as a theory or concept but as an absolutely critical element of a proper functioning justice system. As I reflect on my time on the Bench, these were two pretty good lessons that have stayed with me.

In the first few years of my appointment my friends, past colleagues and other associates took great pains to tell me that I was now working for the government. When I took the time to explain to them the necessity of judicial independence most of them got it. I have learned time and time again over the last ten years the importance of judicial independence. There is nothing as humbling as looking into the eyes of an accused or a witness and providing the silent reassurance to yourself that you will judge their

case fairly and independently.

It can be very difficult and take great courage.

The judiciary can come under great pressure from a variety of sources both real and perceived. We as judges always need to remember that accused and witnesses expect us to be independent. Without true independence, there can be no fairness.

Throughout my judicial career I have had the good fortune to work with staff of the highest quality.

There is a culture, which has been created within Court services, of pride in doing a good job. I have seen many examples. One of our staff in Prince Albert consistently is at her desk shortly after 7:00 am and several arrive before 8:00am. It is not uncommon for staff to be at the office until 6:00 pm or later. There is a huge sense of commitment that permeates the staff at every Court house I have attended.

Some of my observations about the Court may be of interest. The Provincial Court has 13 permanent locations and also sits in 65 circuit points across the Province. Fortynine judges sit in various locations and various Courtrooms from: St. Mary Magdalene Catholic Church in Beauval; the Band Hall on Black Lake First Nation; the Hudson Bay Town Hall; the Indian Head Memorial Hall; the Maple Creek Legion Hall; and the Masonic Lodge in Kindersley. Chief Judge Plemel’s biennial report (2014SPRING 2017 21

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22 BARNOTES

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FROM THE BENCH

2015http://www.sasklawcourts.ca/ index.php/home/provincial-court/ reports-and-publications) provides an interesting and comprehensive review of the Court’s work. The statistics are staggering. The Court dealt with 128,466 accused in 2015, which resulted in 937,439 appearances before the Court in 2015.

I have been fortunate to sit in many parts of Saskatchewan, including on many First Nations. The Montreal Lake Cree Nation, for instance, is a beautiful location anytime of the year, with the community nestled on the shores of the lake. As well, the Village of Sandy Bay provides a stunning view as you approach from the air.

On Montreal Lake Cree Nation, the local Government permits the Court to use their Council Chambers, but in some communities Court facilities can present a challenge. The Court flies from Prince Albert to Sandy Bay. For many years Court was held in the basement of the local Roman Catholic Church. The judges “chambers” was a furnace room, where I changed and deliberated on many occasions. The furnace room also served as an interview room for Counsel. Legend has it that the furnace room was also used to store coffins and on occasion, the judge would be required to share his chambers with a coffin. I am not sure whether the coffin was occupied or not. Fortunately, we now have a new facility in Sandy Bay, a hall dedicated for the Court to use.

It is a fact that First Nations and Metis people are over represented as accused, witnesses and victims in the work of our Court. This over-representation is troubling and it is hoped that the ongoing work of reconciliation will help to reduce these numbers. There are

The community of Sandy Bay as seen from the air (Photo courtesy of His Honour Judge Gerry Morin)

Montreal Lake Cree Nation (Photo courtesy of Shauna Mann, Court Clerk) many examples of progress being made such as the Cree Court which is presided over by Judge Morin and the Aboriginal Language Court presided over by Judge Bird. The causes of economic disadvantage, poverty and alcoholism are difficult

and complex. Over the last ten years I have witnessed this Court, on a daily basis, addressing these issues.

While more needs to be done, it is in my experience, unfair to say that the Provincial Court is not addressing and responding to Gladue factors.

SPRING 2017 23

FROM THE BENCH

No article on my experiences and observations would be complete without a comment regarding those of you on the front line: lawyers. Provincial Court judges have not forgotten the stress and strains of being on the front lines. I have witnessed numerous examples of first rate advocacy by lawyers working hard to represent their clients. I am convinced that in Saskatchewan we produce the best advocates. I have seen on a frequent basis young, energetic and intelligent lawyers doing great work. (And I thought all the good lawyers graduated in the 1980’s – particularly in the class of ’85.)

I doubt that I will make it another ten years but I am thankful for the experience of the last ten. I know that there are opportunities ahead for the Court which will bring challenges. I have great confidence that this Court will respond to the challenges and will continue to be vigilant to ensure that the rights of Saskatchewan citizens are maintained and protected.

BAR JUDICIAL COUNCIL REPS The Bar Judicial Council deals with matters of concern between the Bench and the Bar. If you have suggestions on how the administration of justice can be improved, suggestions can be given to the appropriate representative listed below.

COURT OF APPEAL MURRAY SAWATZKY, QC McDougall Gauley LLP, Regina msawatzky@mcdougallgauley.com

CHRISTINE GLAZER, QC McKercher LLP, Saskatoon c.glazer@mckercher.ca

COURT OF QUEEN’S BENCH JEFF GRUBB, QC Miller Thomson LLP, Regina jgrubb@millerthomson.com

JENN PEREIRA Robertson Stromberg LLP, Saskatoon j.pereira@rslaw.com

PROVINCIAL COURT BONNIE MISSENS Saskatchewan Indian Gaming Authority, Saskatoon bonnie.missens@siga.sk.ca

The new Sandy Bay Courtroom (Photo courtesy of His Honour Judge Gerry Morin)

24 BARNOTES

SUZANNE YOUNG Grayson & Company, Moose Jaw syoung@graysonandcompnay.com

STUDENT CORNER

LAW STUDENTS VISIT THE BATTLEFORDS Liam Fitz-Gerald || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN

L

iam Fitz-Gerald is a member of the Small Urban and Rural Committee and is currently in his second year of law at the University of Saskatchewan. He is originally from Swift Current.

Last fall, the Small Urban and Rural Firm Committee (SURC) at the University of Saskatchewan College of Law organized a tour to Battleford and North Battleford. Indeed, 23 students, many from Saskatchewan, but others from across the country, boarded a bus on October 21 to visit the historic capital of the former Northwest Territories.

Upon arrival in North Battleford, the students went to the local Curling Club and were greeted by members of the community including former mayor, Ian Hamilton, who praised the students for taking the time to come visit the community and consider it as a potential place to live and work. After introductions, the students were given a tour of North Battleford’s new recreational facilities. These new facilities impressed the students who got to see a brand-new sports complex, a new pool, and a new theatre. Two recent Calls, who articled in North Battleford, spoke of their experience working in the community and the benefits of articling in rural areas.

The students then hopped back on the bus and were joined by Jeff Baldwin, a partner at the firm of

Demmans Baldwin Friedman Frank (DBF) who guided the students (while giving them a mini-tour of the city) to the firm. At DBF, students had a chance to meet the other lawyers and ask them questions about the firm itself and the kinds of law they practiced. Afterwards, they headed to Blend’s Restaurant where they were joined by several lawyers and Queen’s Bench Justice Daniel Konkin. The lunch gave students a chance to talk to some of the other lawyers about their careers in North Battleford and the various work they had done over the course of their careers. After lunch, Mr. Baldwin continued to accompany the students as they set out to see the other firms in the city. First, however, the bus took the students to the Queen’s Bench in Battleford.

Along the way, Mr. Baldwin pointed out several historical facts about the Battlefords including the location of the old Land Titles building, housing title records that were once held in the old territorial capital, and some battle scenes from the Riel Rebellion in the late nineteenth century.

The students learned more and more as the day progressed. At the Queen’s Bench, Justice Konkin gave the students a tour of the courthouse and explained the function and role of a Queen’s Bench Judge and what his day-to-day duties entailed.

Afterwards, the students posed for a photo outside the courthouse.

Next, they travelled to Sunchild Law

Office and met Eleanor Sunchild.

She explained her practice and also reminded the students of the legacies of the residential schools.

Subsequently, the students returned to North Battleford and this time received a tour of the Provincial Court by Judge O’Hanlon who showed them around the courthouse, including the holding cells, and then gave them an opportunity to ask questions, which they eagerly did. Judge O’Hanlon answered several questions regarding access to justice in the Battlefords, the impact of the R v Jordan decision on the Battleford courts, and his own career as a lawyer which began in the Battlefords.

The students made one more stop at the Gibbons Law Office/Norsask Law Office in North Battleford. They were generously treated to coffee and donuts and were able to chat with the lawyers at the office and ask any questions they may have had.

Afterwards, the students climbed aboard the bus and departed back to Saskatoon. The community left it’s impression. On the way home students excitedly talked about the possibilities of living and working in small urban and rural communities and the exciting opportunities in such places.

What this trip, and the many other trips over the years have shown, is that students have a genuine SPRING 2017 25

STUDENT CORNER

Law students on the steps of the Battleford Queen's Bench Court House. interest in living and working in smaller communities and at smaller firms. It is through the communities willingness to host us for a day and take time out of their schedules to show us their practice and their community more broadly, that allows students to really experience day to day life in small and rural centers throughout Saskatchewan.

To that end, we would like to extend a thank you to the NorthBattleford/Battlefords Bar for hosting us. We also would like to thank Mr. Hamilton and members of city council for taking time out of their schedule to come tell us about their community and what they love the most about it. Particularly, we would like to thank Mr. Baldwin for planning our trip and taking time out of his day to accompany us through the city and tell us about its history and point out the landmarks while guiding us 26 BARNOTES

to our destinations. Finally, we thank CBA Saskatchewan for its financial support. It is this support that allows students the opportunity to reach out to lawyers in these communities.

As members of the SURC committee, we believe it is important to highlight the opportunities that exist in Saskatchewan; we are always keen on meeting representatives from the legal community. Please feel free to visit the College and meet some of the students here—many of whom would be very interested in working in a small urban and rural setting. Indeed, events such as the CBA Showcase of Saskatchewan firms offers an excellent opportunity for lawyers to connect with students.

CALENDAR OF EVENTS March 30, 2017

Law Day Panel Discussion

Regina

April 8, 2017

Law Day Mock Trial Competition

Saskatoon

April 15, 2017

NOMINATION DEADLINE: COMMUNITY SERVICE AWARD

April 19, 2017

LAW DAY

June 9-10, 2017

CBA Board of Directors

Ottawa

June 15, 2017

Branch Annual Meeting

Regina

August 16, 2017

CBA Board of Directors

Ottawa

MOVED OFFICES OR CHANGED JOBS?

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

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