November/December 2012 - Law Society of the Northwest Territories
Transcription
November/December 2012 - Law Society of the Northwest Territories
ARCTIC OBITER NO B E R2/0D1E1C E M B E R 2 0 1 2 M AYV/EJM U NE VVO S SU OLLU UM MEE XXVVI,, IISS U EE 36 PLANNING AHEAD THE LAW SOCIETY AND CANADIAN BAR ASSOCIATION GEAR UP TO TACKLE UPCOMING CHANGES TO THE PROFESSION AS THE LEGAL LANDSCAPE CONTINUES TO SHIFT 2 | ARCTIC OBITER 4th Floor, Diamond Plaza PRESIDENT 5204 – 50th Avenue Caroline G. Wawzonek INSIDE P.O. Box 1298 VICE-PRESIDENT Yellowknife, NT Karen Wilford X1A 2N9 SECRETARY TEL: (867) 873-3828 Margo Nightingale FAX: (867) 873-6344 TREASURER [email protected] J.M. Alain Chiasson 10 Highlights of the Law Society’s 35th Annual General Meeting 13 Executor’s Insurance 13 Why is Your Law Firm Merging? www.lawsociety.nt.ca LAYPERSON Peter Hall by Jordan M. Atin by Jordan Furlong P.O. Box 1985 PRESIDENT Glen Rutland Yellowknife, NT X1A 2P5 VICE PRESIDENT Sandra MacKenzie TEL: (867) 669-7739 SECRETARY / TREASURER FAX: (867) 873-6344 Karin Taylor [email protected] PAST PRESIDENT cba.org/northwest Malinda Kellett MEMBERS OF COUNCIL Sheldon Toner Caroline Wawzonek Charlene Doolittle BettyLou McIlmoyle Jeannie Wynne-Edwards 3 President’s Message 20 NWT Legislative News 4 Bar Notes 21 NWT Decision Digest 5 Executive Director’s Message 6 Membership News 28 Supreme Court of Canada Update 8 CBA National News 31 Resources EXECUTIVE DIRECTOR Linda Whitford [email protected] DIRECTOR OF COMMUNICATIONS LEGAL EDUCATION COORDINATOR Ben Russo [email protected] FROM THE EDITOR ADMINISTRATIVE ASSISTANT Liz Jackson Another year has come to an end. My “to do” list lingers amid piles of paperwork, and the office closes for the holidays tomorrow. [email protected] The Law Society’s AGM in December sparked much discussion on a variety of Arctic Obiter is a joint publication of the Law Society of the Northwest Territories and the Northwest Territories Branch of the Canadian Bar Association. It is published on a bi-monthly basis to keep lawyers practicing in the NWT informed of news, announcements, programs and activities. Comments, articles and photos for consideration can be submitted to Ben Russo. Past and current issues are available on the Law Society website. issues. So, to draw 2012 to a close, a summary of the AGM is included, along with an overview on the newly available Executor’s Insurance by Jordan Atin and piece of mind for law firms by Jordan Furlong. Thanks to all our contributors over the last year, and to all our readers. Have a great holiday and a happy new year. -Ben NOVEMBER/DECEMBER 2012 | 3 PRESIDENT’S MESSAGE On the Horizon With a new year approaching, we will soon be hearing about new is sufficiently served by a legal profession that understands who years resolutions and be bombarded with advice about how to they are, where they are and the context in which they live and make successful changes. It is a fitting opportunity to write about conduct their business. We are increasingly working in a context some of the changes on the near and distant horizon for the Law where legal services are becoming financially out of reach to a large Society, and some of the strategies we can use and have used to proportion of the population. In the North, it is not only money weather those changes successfully. that makes legal services inaccessible but the fact of a small private bar. Does the lack of private counsel change the kind of The practice of law, admittance into practice and conversation that we having about mobility? Or is regulation of the practice are all in the midst of the crisis in access to justice a national problem change across the country, and we can engage from which we can potentially draw nationally these processes of change while still maintaining sourced solutions? consistency and stability for our membership and to the public we serve. On a more “personnel” front, the Law Society will begin the process of replacing our long standing One of the biggest potential sources of long term Executive change continues to be mobility. A review of the challenges that prevent full mobility will be begin in the new year in order to ensure the same jurisdiction unique. The process will require high standards we have come to enjoy from our creativity in order to protect the values, services Executive Director. and features that distinguish our jurisdiction. At we must be honest in has nevertheless be found. This process of change will examine and advocate for what makes our time Whitford Society. Linda is irreplaceable, but a new ED must two years. We must be prepared to critically same Linda will be 18 years of dedicated service to the Law presented to the Federation of Law Societies in the Director. announced a well-earned retirement after what Caroline G. Wawzonek One development that exemplifies our ability to acknowledging similarities with our counterparts across the successfully navigate change is the agreement renewal with the country. NWT Branch of the Canadian Bar Association. The Law Society Another major change that is still only on the very distant horizon is the prospect of national standards for admission to the legal profession. The Federation of Law Societies has recently approved National Competency Standards. The project is now moving to the next phase of examining consistency in good character and suitability requirements. and NWT CBA have enjoyed a long standing collaborative relationship. The need to formally renew this relationship was an opportunity to consider what both entities needed while looking to where we are heading in the future. I believe our new contract accomplishes those goals. We took positive steps towards ensuring that we are both looking at the same horizon while clarifying what makes each of our organizations unique. Very importantly, The issues surrounding national mobility and national standards channels and opportunities for communication have been more are not a call to arms to defend ourselves against invaders from clearly established. unknown reaches. This is an opportunity to do what lawyers do well: problem solve, advocate, mediate and think creatively. It can also be an opportunity to consider ways in which to improve our “brand.” For example, this can be an opportunity to look at recruitment and retention and promote what we offer that is unique from other jurisdictions. At the same time, we must also remain vigilant of the public interest that we serve. We must ensure that the public in the north We can continue to be a distinct jurisdiction and still carve out our place within a changing national landscape. It is not only possible, it is essential. I look forward to working with my colleagues on the Executive, Law Society staff, committee chairs and interested members to ensure that we continue to move confidently towards the ever changing horizon. Warmest wishes for a happy holiday season and 2013 filled with positive changes! 4 | ARCTIC OBITER BAR NOTES Planning for the Future The CBA nationally has a new strategic plan that focuses on five submissions were discussed. We are also looking for volunteers to key areas of importance to our members: Influence and Leadership, serve on national pro bono and equity committees. If you are Community, Education, Cohesion, and Organizational Excellence. interested, please contact me directly to discuss. The local branch will begin its own strategic planning process based on these priorities in the next few months, but in the interim I ORGANIZATIONAL EXCELLENCE want to report on our local initiatives in each of these five areas. I am pleased to report that an agreement has been reached to renew the contract for the Law Society to provide administrative services INFLUENCE AND LEADERSHIP and support to the CBA-NT. This agreement will We are increasing advocacy efforts on behalf of the ensure that both organizations can continue to profession and in the area of law reform. Recently, fulfill the important roles they play, while clearly the Criminal Law Section submitted its views on a delineating new Legal Aid Act and changes were made to the organizations. The new agreement also clearly sets Bill to address the concerns raised. The branch ou t continues its advocacy efforts on the issue of communications. courthouse meeting rooms and reinstatement of the differences expe c tati ons f or between acti vi ties the and Also, mark your calendars now, as the CBA-NT the Queen’s Counsel designation. Finally thanks Mid-Winter Meeting will be held on January 29, to our Criminal Law Section Chair, Caroline 2013. We expect that both candidates for CBA 2nd Wawzonek for responding to a recent editorial on Vice-President will be coming to Yellowknife to bail. join us for our Mid-Winter meeting. COMMUNITY Finally, I would like to close by wishing everyone CBA-NT Vice-President Sandra Mackenzie spoke about the CBA at the annual Meet the Students and New Associates night. The branch has also a happy holiday season and all the best for the Glen W. Rutland new year. paid for CBA memberships for four articling NOTA BENE: As many of you are aware, we recently lost Paul students in the Northwest Territories. The branch also pays student Smith. Paul was a committed supporter and volunteer for the CBA memberships for law students from the NWT. both nationally and here at the Branch. Paul is a former President of the Branch, the founding Chair of the Branch’s Labour & EDUCATION Employment Section, and was currently serving as Chair of the Our branch, in partnership with CBA National, is the single-largest National Administrative Law Section. Paul also served as Co-Chair provider of CPD in the Northwest Territories. This year, the CBA of the CBA 2008 Mid-Winter Meeting held in Yellowknife. offered 17 hours of in person CPD, 14.5 hours of section meetings, and 37.5 hours of substantive law and skills-based CPD online. Paul was a candidate for CBA National President in 2008, in a race There are some exciting CPD initiatives underway for the new year, that was described by the then CBA president, Bernard Amyot, as a including events for public sector lawyers and a national in-person historic first for the organization. It was the first time the candidates CPD being offered by the Environmental, Energy and Resources were from the North. This will be recognized as his greatest legacy Law Section. with the CBA, as it was Paul, who in 2004, put forward the recommendation that Northern lawyers be added to the geographic COHESION rotation for the CBA presidency. CBA-NT Vice-President Sandra Mackenzie and I recently met with Section Chairs to discuss plans for the upcoming year and expectations of sections. The need for local, in-person CPD and engagement with National Sections through newsletter On a personal note, Paul remained an active supporter of our branch, and I will miss his phone calls where we discussed the CBA issues of the day with him, and his heartfelt advice and support. NOVEMBER/DECEMBER 2012 | 5 THE DIRECTOR’S CHAIR Remembering Paul Events of the past week have pre-empted my usual ramblings to touch up for an at-home dinner, a CBA tradition at the annual CLC. briefly on the loss of a friend. Family, friends and colleagues from across Canada were shocked at the untimely and sudden death of Paul At the time of his death, Paul was the National Chair of the CBA’s N. K. Smith. For those who have wondered over the years, the N. K. Administrative Law Section. Just prior to my leaving on vacation early stands for “Norman Keays”. this month we talked about arrangements for the national Administrative Law Section meeting being held here in June. He was Paul graduated from the University of Alberta in 1997 and came to the very much looking forward to hosting his colleagues at the event and Northwest Territories to article with Austin Marshall. being able to once again, showcase our community. As a student, he was an avid participant in the Society and quickly teamed with the likes of Messrs. It was my pleasure to work with him on a number of Toner and Himmelman. I used to be able to rely levels, but more importantly, to be his friend. highly on the theory - find one and you found all sincere condolences go out to his family at this most three! He swore his oath of office before the Hon. challenging of times. The Law Society and the CBA Justice J. E. “Ted” Richard and was admitted to the have both made contributions to charities in his Bar in the NWT on 23 October 1998. On November memory. 23, 1998 he joined the firm of Gullberg Wiest & Our All of this leads me to a topic that becomes even more McPherson, now known as Lawson Lundell. He left important as the age demographic of the profession that firm in June 2012 and set up shop as a sole shifts and the number of Sole Practitioners rises. Do practitioner. you have a checklist for succession planning? Are The majority of Paul’s practice was dedicated to you prepared? Do you have a disaster plan? What Labour and Employment Law with the balance plans are in place in the case of a catastrophic event? consisting of Administrative Law, Regulatory Law What happens to your practice if something happens and Civil Litigation. to you? Those of you in the queue for a random He served on various Law Society Committees and was our appointee to the review will be asked this question. Linda G. Whitford What will you say? Need some help? We have several resources on NWT Judicial Council for Territorial Court Judges. Additionally, he served on the Law Society Executive Committee as hand that are relevant and helpful. Remember, it can happen to you! Treasurer in 2005 and Vice-President in 2006. He was also instrumental None of us are immune. I am still trying to get it right, but can advise in spearheading the tradition of the President’s Dinner, a practice that some of my house is in order and the rest is shaping up - both common in many other jurisdictions. personally and professionally. In 2000, Paul became the Secretary/Treasurer of the Northwest January will come soon enough with all sorts of administrative Territories Branch of the Canadian Bar Association. A ladder position, responsibilities including the beginning of the annual renewal process. he went on to become President in 2002-2003. During this term, he, Those of you who attended the AGM or read the material will know with Kathryn Vennard and Mike Himmelman, lobbied for the NWT to that there are rule changes and a fee increase for active members. You once again host the Annual Mid-Winter Meeting in Yellowknife; and will find highlights of the Annual General Meeting in other parts of this he, Sheldon Toner and their colleagues from the Yukon, championed edition of the Obiter so I will not reiterate them here. However, I do the Territories’ right to be included in the rotation of the Presidency for want to recognize Sarah Kay, the most recent recipient of the the CBA. Both causes were successful and in 2008 we hosted a “still much talked about awesome event” and Paul ran unsuccessfully against Rod Snow of the Yukon for the position of CBA 2nd Vice-President. On learning of the news of Paul’s death, Rod noted that “… we got to know each other well as candidates for CBA 2 nd VP when we joked that we could each give the others stump speech. And Paul was kind and gracious whenever I saw him in the years after that.” When the Law Society hosted the Federation of Law Societies in March of this year, Paul was among the first to sign President’s Award. Congratulations Sarah, you continue to raise the Bar! I will close by wishing you all a Mele Kalikimaka & me ka Hau'oli Makahiki Hou! I survived the Honolulu Marathon and look forward to working with you all in the year to come. As noted in my report to the AGM, a succession plan is in my future. Be safe, be well, be happy, and see you on the trails. 6 | ARCTIC OBITER MEMBERSHIP In Memoriam justice and peace. After spending his PAUL N.K. SMITH Arthur went to law school in 1976 so SMITH & ASSOCIATES—YELLOWKNIFE, NT that he could further his commitment early career as a teacher and journalist, On December 15, 2012, Paul N.K. Smith to social justice and Aboriginal issues. died suddenly and unexpectedly in Arthur and his best friend, Rick Salter, Yellowknife. started the law firm Pape and Salter in A long time Yellowknifer and lawyer, 1982. Jean Teillet became a partner and Paul primarily practiced labour and the firm is now Pape, Salter and administrative law for 14 years, most Teillet. Arthur represented Aboriginal recently through this firm, Smith & people in several provinces and Associates. territories and argued many cases before the Supreme Court of Canada. He was an active member of the community and the legal profession, Arthur married Maxine Thomas in having served as president of the 1968. He raised her daughter Lisa as Canadian his own and together they had Jada Bar Association (NWT Branch) and as Chair of the CBA’s and Josh. The marriage ended in 1995. P. Smith National Administrative Law Section. Paul was also a member of the Nunavut In 2002 Arthur married his high school donations to be made in Paul’s memory sweetheart, Judith Hashmall. He was to ch oi ce . embraced by her family and friends Caroline Condolences to family and friends may who felt incredibly fortunate to have Wawzonek noted, “The entire NWT be sent via McKenna Funeral Home: Arthur in their lives. Arthur will be legal [email protected] greatly missed by his wife Judith and Alberta Law Societies. Law Society President community is shaken and saddened by Paul’s death. Paul was a consummate professional, committed to his clients and to the betterment of the practice of law.” a cha ri t y of y ou r Hashmall, Carolyn Pape Cowan and ARTHUR C. PAPE Phil Cowan, Audrey Cole and Allan PAPE, SALTER AND TEILLET—TORONTO, ON Arthur Pape died Kennedy, his children Lisa and Clint on Dafoe, Jada Pape and Josh December 6th surrounded by Pape, and his grandchildren Paul is survived by his wife Kimberly family at The Kensington Williams, his son Zachary, his mother Hospice in Toronto. He was Elizabeth Smith (Sault Ste Marie, born on April 3, 1942 in Ontario), his brother Ben (Dawn),and Toronto and grew up with his nephew Jeffery (Calgary), his father his and mother in law, Walt and Carol Audrey. After their mother's death his Williams of Tumbler Ridge, B.C. He is father married Lee Soboloff. Lee's predeceased by his father Ben Smith children Michael and Joan joined the (Sault Ste. Marie, Ontario). family. “Our thoughts and prayers are with his Arthur was a lawyer who spent most family, particularly Kim and Zachary, at of his career fighting for Aboriginal this difficult time” said Wawzonek. and workers' rights across Canada. In lieu of flowers, the family requests sisters, Carolyn and Sarah, Nora and Clayton. He will also be missed by his stepchildren Daniel Copeland A. Pape From a young age he fought for social and Joanne Terrence, Jeremy Copeland and Anna Wieselgren, Lia Copeland, and his step -grandchildren Jesse, Cara and Logan. The family requests that any donations be made to the Arthur Pape Prize for Students of Aboriginal Law, at Alumni Office, Osgoode Hall Law School, York University, 4700 Keele Street, Toronto, ON, M3J 1P3, (416) 736-5638. NOVEMBER/DECEMBER 2012 | MEMBERSHIP STATS New Members MICHAEL J. BAILEY MAURICE LAW— CALGARY, AB Michael practices civil litigation and represents many clients through a wide spectrum of struggle and resolution: in mediation, arbitration, Active Residents: 140 Active Non-Residents: 264 Inactive Members: 487 (Restricted Members: 76) Energy Board, the Energy Resources Conservation Board, Alberta Utilities Commission, Joint Review Panels established under Environmental 83 Total Membership: 7 the Canadian Assessment Act, the Alberta Environmental Appeals Board, the Mackenzie Valley Land and Water Board and the Nunavut Water Board. trial and appellate advocacy, and from the cl ai ms of i ndi vi dual s RACHELLE K. ROBERTS to commercial (particularly construction practiced at another major national FIELD LAW — EDMONTON, AB and insurance) matters and law firm in Calgary and completed a Rachelle disputes, as well as cross- clerkship with the jurisdictional Court of Canada in Ottawa. matters and major aboriginal litigation. Federal OSLER, HOSKIN & HARCOURT LLP — CALGARY, AB the Business Law Course at the University of Calgary and M.J. Bailey and Education Society of Alberta and the strategies for A l be r t a necessary sponsored as industry seminars for the approvals R.K. Roberts 2004. practice focuses on member of the firm's legal team executing representing obtaining large in Aboriginal Law and she is currently a hundreds of Aboriginal clients in pursuing regulatory for h e r admittance to the Rachelle's developing Association, as well an s i n c e regulatory and environmental education seminars for the Legal Lawyers’ been bar law. He has extensive experience in T ri a l has Martin’s practice focuses on also presents at many professional C i vi l with Field LLP and associate of the firm MARTIN K. IGNASIAK Michael has assisted teaching articled claims for damage suffered scale industrial projects, including while construction and insurance industries. oil sands facilities, coal mines Government run Residential TERRI-LEE OLENIUK and OSLER, HOSKIN & HARCOURT LLP — CALGARY, AB electric generation M.K. Ignasiak facilities. In his capacity as a regulatory and Schools. PAULA M. MACFADYEN lawyer, project-related advises clients on aboriginal DEPT. OF INDUSTRY, TOURISM & INVESTMENT (GNWT) — YELLOWKNIFE, NT concerning natural resource issues Paula joins the Government of the development impact benefit agreements. with a specialization in regulatory, He environmental and Aboriginal law issues. She acts for a T. Oleniuk variety of companies in environmental assessments and regulatory proceedings and frequently advises clients on a variety of agreements with First Nations and Métis groups and negotiates impact benefit agreements. Prior to joining Osler, Terri-Lee and has has regularly Church Terri-Lee’s practice focuses on issues Martin at negotiated appeared before, among others, the National Northwest Territories from Prince Edward Island, where she practiced Family Law, Real estate Law and in Wills and Estates. MEMBERSHIP RENEWALS The annual deadline for membership renewals is March 31st. Renewal notices and instructions will be delivered to all members by email in mid-January. Further questions or concerns may be directed to the Law Society at (867) 873-3828 or [email protected]. 8 | ARCTIC OBITER CBA NATIONAL NEWS Envisioning Equal Justice: discussion paper & summit Work continues on the CBA Access to planning Justice Committee’s Envisioning Equal Justice Justice initiative. Vancouver. On the research and consultation side of the project, the Committee is seeking members’ input on the first of five discussion documents, “Tension the Envisioning Summit, April Through Equal 25-27 in educational, interactive sessions, attendees will explore solutions and develop practical strategies to address a growing gap in access to justice. at the Border: Pro Bono and Legal Read Tension at the Border: Aid”, until January 15. Feedback http://j.mp/probonolegalaid questions can be found on the final Envisioning Equal Justice Summit: page of the paper. http://j.mp/equaljusticesummit Photo courtesy of Daniel Sabourin (Laforest et Sabourin) The Committee is also in the midst of CBA welcomes Mr. Justice Richard Wagner Leave to intervene in CN v. McKercher LLP and Wallace The Supreme Court of Canada has articulated in R. v. Neil and Strother v. granted the CBA leave to intervene in 3464920 Canada Inc. the appeal in CN v. McKercher LLP and Wallace on the issue of the scope of the duty to avoid conflicts of interest. On January 24, the CBA will argue that this duty does categorically not Mr. Justice Richard Wagner, the newest member of the Supreme Court of Canada, was welcomed at a ceremony Malcolm Mercer, Eric Block, and last month. Brendan McCarthy Brun, QC, was on hand to greet the Tétrault LLP are acting as pro bono new justice on behalf of the Associa- counsel for the CBA. tion. Brammall of CBA President Robert prohibit Praising the new justice’s strong sense acting directly adverse to of public service, knowledge of the the immediate interests of legal community and leadership tal- a current client. ents, Brun took the opportunity to rec- The McKercher provides opportunity appeal the for first the Supreme Court to squarely address the application of the “bright-line rule” it ognize Justice Wagner’s reputation as a ‘straight shooter.’ “His peers in the legal community often cite his clear reasoning – and writing – as one of his most invaluable talents, as well as his patience and his willingness to listen,” he said. NOVEMBER/DECEMBER 2012 | Mid-winter Meeting of Council, Mont Tremblant FAQs on solicitor-client privilege for in-house counsel 9 The CCCA and CBA Ethics and practice, the new FAQs cover the Professional Responsibility basic principles and offer practical Committee have produced a series of guidance for difficult situations. A FAQs and answers about solicitor- live webinar on this topic is scheduled The 2013 Mid-Winter Meeting of client privilege and confidentiality for February 7, 2013. Watch for details National Council will be held at Mont aimed to meet the needs of in-house and registration information early in -Tremblant, Quebec, from February counsel. the new year. 15-17. Following the popular, recently Attendees will help shape the future updated 2010 FAQs on Privilege and of the CBA and the legal profession Confidentiality for lawyers in private Read the FAQs: http://www.cba.org/ CBA/activities/code/privilege.aspx by participating in a roundtable issues, public policy, and governance. Deanna Ludowicz of BC receives Legal Aid Leader Award There will also be ample time to enjoy Deanna Ludowicz of Grand Forks, the many activities that Tremblant is BC, is the CBA’s most to promote and defend the famous for, and connect with your recent winner of the Legal legal aid system. colleagues at evening social events. Aid Leader Award. discussion on the Envisioning Equal Justice initiative and voting on resolutions concerning current legal spent For more about Deanna, Details and registration: Having legal and how you can nominate www.cba.org/tremblant2013 career assisting clients in a deserving colleague for need, Ludowicz has built a the award, visit: reputation as a champion www.cba.org/CBA/ for Advocacy/legalAid/ those her advocate and for encouraging others without an Judges Act amendments lauded The CBA applauds the government’s response to the quadrennial Judicial clear and public response to the Compensation independent for Commission from six months to four, judicial compensation contained in and to introduce legislation in a amendments to the Judges Act included timelier manner. review process in the latest omnibus budget bill. In the amendments, the federal government has proposed to reduce the time for its News release: and Benefits http://www.cba.org/ CBA/News/2012_Releases/2012-11-22judgesact-eng.aspx 10 | ARCTIC OBITER ANNUAL GENERAL MEETING THE 35TH ANNUAL GENERAL MEETING OF THE LAW SOCIETY OF THE NORTHWEST TERRITORIES WAS HELD ON SATURDAY, DECEMBER 1, 2012, IN YELLOWKNIFE. THE FOLLOWING ARE SOME OF THE HIGHLIGHTS FROM THE MEETING. Is National Mobility Possible in the North? The Territorial Mobility Agreement (TMA), signed by all jurisdictions in December 2006, was a five-year agreement parallel with the National Mobility Agreement (NMA). It contained the permanent mobility provisions found in the NMA, but still allowed the three territories to manage temporary mobility on terms tailored for the unique Northern legal climates. In December 2011, Federation members renewed the TMA indefinitely. It was decided that, although intervener status in this challenge. “Several factors suggest that it is time to take a close look at our position on temporary mobility,” says former President Cayley Thomas, recognizing the Nunavut challenge and FLSC review. “Technology and the global marketplace have blurred geographic borders to the extent that some see a ‘national law society’ in the not-so-distant future.” a suitable alternative had not been tabled to address the The push for national standards by the FLSC’s members differences between the two agreements, a review of the comes with its own pressures on the territories, as well as factors and challenges impeding the territories from signing Quebec. onto the NMA is still very necessary. Member and NWT Representative, reported to members that The FLSC is set to complete this review by December 2014. In the interim, a constitutional challenge in Nunavut has intensified the issue. The challenge targets the admission requirements of the Law Society of Nunavut, which However, Sheila MacPherson, FLSC Council Quebec is now proposing to fully sign onto the NMA, thereby moving the spotlight squarely on the territories. In her report, Sheila cautions that “both the Quebec initiative and the Nunavut challenge make this review timely and important.” purportedly breach various sections of the Charter. Having Echoed by Sheila’s report, Cayley urged members to approach similar requirements, and recognizing the impact this this issue proactively and “review this requirement and challenge will have on all territories, the Northwest Territories consider what impact temporary mobility would have on our and Yukon have requested (and have been granted) ability to be an independent self-regulating body.” Interest Rates on Trust Accounts by Emerald Murphy, Chair, Law Foundation of the NWT At the recent Law Society General Membership Meeting, I promised to let Members know about the interest rates being paid by the chartered banks on trust accounts: accounts held at the Scotia Bank for the 2 ½ to 3 years. When choosing depositing a your BMO Prime minus 2.00 (yields 1.00%) accounts, CIBC Prime minus 2.75 (yields 0.25%) remember that interest Royal Prime minus 2.75 (yields 0.25%) TD Prime minus 2.75 (yields 0.25%) Scotia Prime minus 3.00 (yields 0.00%) The Law Foundation has received no interest on trust bank trust please earned on the trust accounts are the only funds the Foundation Law receives, aside from our share of national Cy-Pres awards. for NOVEMBER/DECEMBER 2012 | 11 Recruitment & Retention an Ongoing Challenge Following its formation at the AGM in 2003, the Recruitment & Retention Committee made initial recommendations to promote the North on the Law Society website, distribute promotional materials, consider career fair participation and develop a colleague network/mentorship program. the committee was no longer there. During the discussion at the 2012 AGM of sunsetting the committee, it was suggested that the Law Society staff is equipped to maintain and expand on the recommendations made by the committee in the last year and in previous years. In later years, it was recognized that there was a “serious As such, using these various recommendations as a guide, crisis” regarding the size and availability of the private bar, Executive Director Linda Whitford assured members the and of the profession in general. However, committee office will continue to promote the North to new lawyers and participation from the private bar was limited or non- develop & improve strategies to retain existing lawyers. existant, preventing the committee from plotting a proper Currently, the Law Society maintains a “Prospects” sub-site course of action. In short, it became apparent that the private (which includes promotional videos, testimonials, job bar wasn’t hiring. opportunities, and facts on the NWT), and continues to That realization has been echoed in recent meetings: a shortage of Northern law firms directly impacts the ability of a new lawyer to find employment in the North. There is no longer a shortage of lawyers seeking employment, but rather a shortage of employers. distribute a “Look Up” DVD and accompanying booklet. It is also developing a social mentorship program for new lawyers to get acquainted with the Northern legal community, both socially and professionally. The motion to sunset the ad hoc Recruitment & Retention It was therefore decided at the last committee meeting that the committee has likely run its course, and that the need for Committee was voted in favour amidst members seeking to continue the discussion through some other venue. Rule Amendments A total of five amendments were proposed, adopted and PRACTICE CESSATION registered in December. The amendments, as proposed, are The rules now provide clarification on the requirements of available on the Law Society website. members ceasing to practice in the Northwest Territories. A The following is a summary of the amendments: LAW SOCIETY EXECUTIVE Following the current Executive, the Law Society Executive will be comprised of five members (the fifth being a member- “cessation of practice plan” is required from those ceasing the private practice of law in the NWT and/or ceasing active membership. Details of the requirements and deadlines are also found in the rules. at-large) and one lay-member. As well, elected members will ANNUAL MEMBERSHIP FEE now serve a three-year term. As of April 1, 2013, the annual active membership fee will be ELECTRONIC BALLOTS AND FILING increased by $150 to $1250.00. Elections may now be conducted by electronic ballot, and EDUCATION PLAN forms and notices may be received and delivered by electronic As of April 1, 2013, Students-at-Law will be required to format. complete an education plan as part of their application The use of these rules is at the discretion of the Executive. package. 12 | ARCTIC OBITER Kay Receives President’s Award Sarah A.E. Kay of Yellowknife was presented with the 2012 President’s Award at the 35th Annual General Meeting of the Law Society. Sarah, a member of the NWT bar since 1993, is a Past President of the Canadian Bar Association - NWT Branch (1999-2000) and the Law Society of the Northwest Territories (2002), and former Council Member at the Federation of Law Societies of Canada. She has also participated in numerous committees and sections, often leading as chair. In 2012 alone, she was Chair of the Rules Committee and the Court Library Review Committee (ad hoc), Vice-Chair of the Discipline committee, a member of the Admissions Committee, and a representative on the Court Library Committee. Her strongest traits are arguably in mentorship and education. In recent years, partnering with TIME FOR TIME: President Cayley Thomas [left] presents award to Sarah Kay. Sheila been provide insight, guidance and advice. She was always a committed to the success of an ongoing Intensive Trial wonderful colleague and a resource to talk about legal issues Advocacy Program geared towards Northern lawyers. As with, or simply to bounce ideas off of.” MacPherson and other volunteers, Sarah has Chair of the CPD Committee for a number of years, she also played a pivotal role in the implementation of Mandatory CPD, following suit with neighboring jurisdictions. Outside the office, Kay’s community involvement is seemingly endless. Over the years, she has contributed her time and efforts to the Lottery Authority Board (1999 to One-on-one, her role as principal has greatly affected a 2010), Stanton Territorial Hospital Foundation (2001-2006), number of lawyer’s careers. As her most recent articling Labour Standards Board of the NWT (2003-2004), Certified student turned lawyer, Alanhea Vogt, can attest, “[she] went General Accountants Association (2002-2005), Yellowknife above and beyond in ensuring that I had all the tools and Condominium Corporation (1996-2003), and the NWT Law support I required to be successful and to gain the skills I Line (1993-2005). required to be a competent and positive contributing member of the legal profession.” “Ms. Kay is one of the finest examples of a legal professional,” adds Paul. “By her own actions, Ms. Kay has Sarah’s role as a mentor still echoes even among the more taught me that it is invaluable to our profession that lawyers senior bar, as Paul Smith (Smith & Associates, Yellowknife) give back to new practitioners.” professes: “In terms of mentorship, I can think of no one I have encountered in this Bar since my admission to it in 1998 who [better] exemplifies the qualities of leadership, care, guidance and collegiality which are the hallmarks of our profession and this Bar.” “Sarah always took the time to discuss issues with me, to The President’s Award is presented by the President of the Law Society to a member who has shown exemplary commitment to and involvement in the legal profession and their community. The annual award was created in 2011, when it was presented by then-President Sheila MacPherson to Ian Rennie of Yellowknife. NOVEMBER/DECEMBER 2012 | 13 Executor’s Insurance by Jordan M. Atin, Counsel, Hull & Hull LLP1 At a seminar last week, a group of lay people were asked if assets, or limit it to the extent that a right of indemnity exists anyone had acted as an executor before. About ¾ of the against such assets, but that depends essentially on the terms of the group proudly raised their hands. The next question - would contract with the third party…”3 any of you do it again? - resulted in many fewer raised hands. Where an executor hires a solicitor4, broker, realtor or undertaker, the executor is the primary debtor, but the For those who counsel executors, the reaction is not creditor who provided the services may be subrogated to the surprising. from executor's right of indemnity against the estate if it was an beneficiaries about their inheritance, the stress of deadlines expense properly incurred.5 Indemnification from the estate and working with professionals, the necessity of keeping is available only if the contract is a “proper one in the meticulous accounting and even the rafts and rafts of paper circumstances”6. The workload, the endless calls and documents that must be kept, make the thankless job time-consuming and frustrating. More correctly, the job is worse than thankless. How often do we see disgruntled beneficiaries criticising the job the executor has done and seeking to reduce the compensation that the executor has sought? But, it can get much, much worse. When one takes on the job LIABILITY IN TORT Negligence by the executor can render the executor personally liable to the beneficiaries and creditors of the estate. Some examples where executors could be found negligent are: 1. the terms of, the Will7; of executor, she is putting her own personal assets on the line. As Justice Maurice Cullity stated in his seminal article improperly interpreting, or not properly following 2. paying the wrong amounts to the wrong parties8; 3. improper disbursements for funeral and creditor (Personal Liability of Trustees and Rights of Indemnification): “The risk of personal liability is an incident of the office of claims9; trustee.”2 Personal liability can result in contract and tort. 4. improperly preferring one creditor over another 10 ; LIABILITY IN CONTRACT 5. missing an heir11; An executor who contracts in relation to the estate is 6. not prudently investing the estate assets12; 7. breach of the even hand rule13; 8. self-dealing14; 9. delay in payment to beneficiaries15; personally liable to the contractor. “The starting point is, of course, that a trustee, in that capacity, deals with third parties as a principal. Ignoring at this stage situations in which relationships of trust and agency coincide, the traditional rule has been that a trustee normally incurs personal liability to the full extent when contracting with a third party. The trustee may limit that personal liability to the value of the trust 10. not properly protecting estate assets, for example not changing locks or purchasing fire insurance or 14 | ARCTIC OBITER keeping a property in repair16; 11. not selling assets in a timely way17; 12. improvident sales of assets18; 13. failing to invest excess cash19; 14. unreasonably prosecuting or defending litigation on behalf of the Estate20; protect us when we act as an executor. LawPro’s standard E&O policy insures lawyers in respect of “Professional Services”. Those are defined as follows in the 2012 Policy: “(z) PROFESSIONAL SERVICES means the practice of the Law of Canada, its provinces and territories, and specifically, those services performed, or which ought to have been 15. not prosecuting a claim against a 3rd party in time21; performed, by or on behalf of an INSURED in 16. improper delegation of duties22; such INSURED’S capacity as a LAWYER or member 17. improvident settlements; and 18. failure to keep accurate records of the administration. of the law society of a RECIPROCATING JURISDICTION, subject to Part II Special Provision A; and shall include, without restricting foregoing, those the generality services for of the which the Under Ontario’s Estates Act and in many other jurisdictions, INSURED is responsible as a LAWYER arising a Judge may order damages against the executor for out of such INSURED’S activity as a trustee, misconduct, neglect or default which results in loss to the administrator, executor, estate. patent or trademark agent.” arbitrator, mediator, There are many examples of cases where courts have found The manner in which your appointment as Estate Trustee that executor’s have breached their duty as fiduciaries. In came about is particularly relevant to the coverage issue. some cases, the executor’s compensation is reduced and no LawPro’s current view is that if a lawyer was appointed as additional damages are ordered against the executor. Estate Trustee by a client of the lawyer’s firm, the lawyer’s However, in the recent Ontario decision of Justice George Strathy in Zimmerman v. McMichael Estate, (2010 CarswellOnt 3481) the trustee was found to have been negligent in the administration of the trust. In addition to being deprived of compensation, the court ordered that he reimburse the estate personally. The trustee was also required to pay the beneficiaries over $270,000 in costs from his own pocket. Whether or not the allegation of negligence against an executor is ultimately upheld by a court, the executor is still put to the expense of defending such a claim. In many cases, the costs awarded to a successful executor will not completely indemnify him or her and thus, he or she is services as Estate Trustee in the administration of the estate falls under the definition of “Professional Services”. In those circumstances, the appointment arose from the practice of law. If, on the other hand, the lawyer was appointed as an Estate Trustee by a family member or friend who is not a client of the firm, LawPro takes the general view that your executorship is not covered by the definition of Professional Services. A lawyer who is appointed as Estate Trustee by a client is still covered even if he or she retains separate legal counsel to act on his or her behalf and does not perform the legal work relating to the estate himself or herself.23 personally liable to some extent, for his or her own defence There is some coverage for retired lawyers who act as an costs. Estate Trustee in circumstances where that lawyer would LAWPRO COVERAGE FOR EXECUTOR/LAWYERS As lawyers, we have professional E&O insurance which may otherwise have been covered (e.g. where the appointment arose from her practice of law). This “run-off” coverage NOVEMBER/DECEMBER 2012 | 15 continues, but unless excess coverage is purchased, is limited to $250,000, in the aggregate. In any case, LawPro recommends that a retired lawyer should advise LawPro of any estates for which she is administering as Estate Trustee. beneficiaries are the same. The benefits seem clear—a client won’t have to put his or her own house on the line when granted the “honour” of acting as executor. The executor would also have some protection Lawyers personally pay the premiums for that policy and, if for legal costs incurred in defending a negligence claim by a claim is made on it, the lawyer is responsible to pay the the beneficiaries which might not be covered by the Estate. increase in the premiums and the deductible. EXECUTOR’S INSURANCE A relatively Insurance 24 new has product been –Executor’s unveiled to the profession and the public. Executor’s Insurance, like title insurance, 2 decades ago, may become a routinely recommended product to executors. The policy provides coverage to executors for Damages arising out of a Claim as a result of the executor’s error, omission or negligent act in the performance of, or failure to perform, an executor’s duties. These damages include: 1. defence costs; 2. damages to correct the error or to make the estate whole; 3. costs awarded against the Insured; and 4. reasonable expenses. POLICY POINTS OF INTEREST ERAssure’s policy contains a few notable points: 1. Coverage applies even before a formal claim is commenced; As well, assuming that the estate itself can look to the policy to be made whole from the executor’s negligence without having to chase the executor for damages would be appealing to the beneficiaries. In the Zimmerman case, the trustee ultimately died before repaying the estate. In the Globe & Mail, one of the beneficiaries was quoted as saying “I’m not sure that [we] will recoup anything, but we’ll see”. POLICY PREMIUMS 2. Damages include compensatory damages, but do Two questions immediately jump to mind: How much does not cover a reduction of executor’s compensation; it cost? Who is going to be responsible to pay the premiums? 3. The policy does not cover income or probate tax The cost of the policy depends on the size of the estate. For liability, but does cover certain defence costs in an estate of $1,000,000 the cost for a three year policy is certain circumstances; and approximately $2,000. Coverage extends to estates of any size, but certain limits of insurance may vary depending on 4. Coverage requires probate of the Will, but still applies to multiple wills when the executors and the circumstances of the estate. 16 | ARCTIC OBITER The issue of whether the premiums can be paid from the in cases where the executor is sued by the beneficiary. estate or are the responsibility of the executor personally is Common situations are where the executor claims that he not to was not properly advised by the lawyer, for example, not indemnification for costs incurred in his duties, a strong clear. As an executor is generally entitled being advised to keep proper records or the requirements of argument can be made that a policy of insurance is an the Trustee Act for prudent investing. These claims arise indemnification of his possible costs. In addition, there is once the beneficiaries commence a claim against the likely a benefit to the beneficiaries. For example, the executor executor. incurs expenses in successfully defending a claim for negligence brought by one of the beneficiaries. Without Executor’s Insurance, the executor would look to the estate to pay those expenses. If there is a policy of Executor’s Insurance in place, the insurance will cover those expenses. To date there has not been a judicial decision regarding this issue. BENEFITS/RISKS TO LAWYERS Executor’s Insurance can provide protection to Lawyers. Lawyers are increasingly being sued by their executor/clients In situations where there is Executor’s Insurance, the executor would not have to make a claim against the lawyer. Instead, any damages and costs the executor incurs as a result of the claim are covered and there is no need to bring the lawyer in as a 3rd party. ERAssure’s policy waives the subrogation rights against the lawyer in every case. For lawyers who are acting as executors, Executor’s Insurance also provides an alternative to putting one’s own E&O insurance on the line. If a claim is made against the lawyer for negligence in respect of his administration of the estate, the lawyer can rely on the Executor’s Insurance policy, which has no increased premiums or trailer fees. However, the very existence of Executor’s Insurance gives rise to risks to lawyers as well. Advising Clients about Executor’s Insurance Take the following example: You are retained by an executor. You do not mention the existence of Executor’s Insurance. He is later sued by a beneficiary for not discharging his executor’s duties and is found personally liable for damages. His lawyer writes to you asking why you did not advise him that he could have purchased Executor’s Insurance. As a matter of risk management, whether one is a proponent of Executor’s Insurance or not, a simple statement that such insurance is available will avoid this risk. “I confirm that I advised you that: improperly carrying out their duties. Your personal assets may be at risk if you are found NOVEMBER/DECEMBER 2012 | 17 liable; determine(s) in his/her/their sole discretion is sufficient to protect my Trustee(s) against claims and losses arising from executors which could protect the executor’s from incurring damages and costs of claims of negligence. If you are interested in finding out more about Executor’s Insurance, please let me know.” errors or omissions in the administration of the estate. The cost of such insurance shall not be deducted from the compensation to which my Trustee(s) is/are otherwise entitled for so acting. CLOSING While it is clear that Executor’s Insurance will not cover all If the client does not wish to pursue Executor’s Insurance potential liability, it does provide similar coverage to you may wish to confirm that in your reporting letter as LawPro in respect of executor’s liability and perhaps even well. broader circumstances. ADVISING THE TESTATOR Whether or not, one is going to use Executor Insurance for Similarly, a testator who wishes to protect her executor from oneself, it is likely something that should be raised with liability should be advised of the availability of Executor’s every executor-client to not only protect the client, but also Insurance. If the testator desires that the executor purchase to protect the lawyer. insurance, a clause authorizes its purchase and premium payment from the estate may be indicated. “I authorize my Trustee(s) to purchase, at the expense of my estate, such errors and omission insurance as my Trustee(s) 1 The assistance of Noah Weisberg, Hull & Hull, LLP is gratefully acknowledged. Jordan M. Atin is counsel at Hull & Hull LLP (Toronto) and maintains a mediation practice at Hull Estate Mediation Inc. He is a frequent speaker at Osgoode Hall Law School, Ontario Bar Association and Law Society of Upper Canada programs on estate matters. 2 “Personal Liability of Trustees and Rights of Indemnification”, [1996] 16 E.T.J. 115 14 Daly v. Brown (1907), 39 S.C.R. 122 (S.C.C.); MacCulloch Estate (Trustee of) v. MacCulloch (1986), 22 E.T.R. 34 (N.S. C.A.) 3 “Personal Liability of Trustees and Rights of Indemnification”, supra at 127 15 Seaman v. Dee (1672), 2 Lev. 40 4 See as an example: McComb Dockrill v. Kikas, 2007 CarswellOnt 171 (Ont. S.C.J.) 16 Davies v. Nelson (1927), 61 O.L.R. 457 (Ont. C.A.); Bentley v. Canada Trust Co. (1992), 48 E.T.R. 111 (B.C. S.C.) 5 Weldon v. Canadian Surety Co. (1966), 64 D.L.R. (2d) 735 (N.S. Co.Ct.) 6 Halsbury's Laws of England, 4[th] Edition, Vol. 17(2), at para. 469 7 Patton, Re, [1931] 3 D.L.R. 544 (Ont. H.C.); Smullen Estate, Re(1995), 6 E.T.R. (2d) 299 (Ont. Gen. Div.); additional reasons at (June 26, 1995), Doc. A110/94 (Ont. Gen. Div.); McRae v. McRae Estate (1994), 2 E.T.R. (2d) 225 (B.C. C.A.); leave to appeal refused(1994), 4 E.T.R. (2d) 14 (note) (S.C.C.). 8 See Re Diplock Estate; Diplock v. Wintle, [1948] 1Ch. 465 in which it was held that a claim could succeed against a beneficiary wrongly paid funds from an estate but only for the shortfall after suing the executors. 9 Stag v. Punter (1744), 3 Atk. 119; Hancock v. Podmore(1830), 1 Barn. & Adol. 260. Loewen Funeral Chapel Ltd. v. Yanz (1999), 27 E.T.R. (2d) 269 (Man. Q.B.); Midgley v. Midgley, [1893] 3 Ch. 282 (Eng. C.A.) 10 Zajachowski v. Worebetz(1937), [1938] 2 W.W.R. 575 (Sask. C.A.). 11 See Re Gareau Estate, 1995 CarswellOnt 821, 9 E.T.R. (2d) 25 (Ont. C.J. (Gen. Div.) 12 Tebbs v. Carpenter (1816), 1 Madd. 290; Fales v. Canada Permanent Trust Company (1977), 2 S.C.R. 302 13 Smith, Re (1971), 18 D.L.R. (3d) 405(Ont. C.A.). 17 Kemp v. Kemp (1996), 12 E.T.R. (2d) 290(Ont. Gen. Div.); Zurosky Estate, Re, [1992] O.J. No. 1294 (Ont. Gen. Div.) 18 Redmond v. Mitchell Estate (1995), 9 E.T.R. (2d) 203 (Alta. Surr. Ct.); Bronson v. Hewitt, 2010 BCSC 169, 58 E.T.R. (3d) 14; 19 Litton v. Litton (1719), 1 P. Wms. 543; Morris v. Dillingham, 2 Ves. Jun. 170; MacIntyre Estate, Re (1989), 92 N.S.R. (2d) 110 (N.S. Prob. Ct.). 20 Laird v. Lyne Estate, [2004] B.C.J. No. 45, 5 E.T.R. (3d) 132, 2004 CarswellBC 47, 2004 BCSC 39 (S.C. [In Chambers]) 21 Hayward v. Kinsey(1701), 12 Mod. 568; Powell v. Evans (1801), 5 Ves. 838; Stiles v. Guy (1849), 1 M. & G. 422. 22 Wagner v. Van Cleeff (1991), 5 O.R. (3d) 477(Ont. Div. Ct.); reversing (1989), 70 O.R. (2d) 641 (Ont. Surr. Ct.); additional reasons at (February 6, 1990), Doc. Ottawa -Carleton 6065/88 (Ont. Surr. Ct.) 23 These statements represent LawPro’s current position in these general circumstances. Each insured should satisfy himself or herself as to coverage in specific circumstances. 24 The only current provider is ERAssure. 18 | ARCTIC OBITER Why is Your Law Firm Merging? by Jordan Furlong (Law21.ca) What do you think of when you read the phrase “a large law new mega-firm 17 years to reach the $10 billion mark. It can be firm”? done, and it may very well happen. But it won’t be overnight. What type of law firm comes into your mind? How many So when we talk about “large law firms,” we need to remember lawyers does it have? In how many jurisdictions is it located? that size is relative. The very last company listed in the most What is its annual turnover? How you answer these questions recent Fortune 500 reported annual revenue in the $22 billion will vary according to your own market and how that market range. Our largest law firms are pikers by comparison. has shaped your expectations around size. There are plenty of reasons cited to explain why law firms seem If, like me, you’re based in Canada, a large law firm generally to have a natural size limit, most prominently conflicts of means an entity with more than 500 lawyers and a substantial interest rules and other ethical or regulatory constraints. presence in four or more major cities. (At least, up until this Personally, I think that’s an excuse: if we really wanted 50,000- week it did; but after Fraser Milner Casgrain agreed to join lawyer law firms spanning the globe, we’d have found a way SNR Denton and Norton Rose announced its merger with around our self-imposed regulations before now. Fulbright & Jaworski, that definition may be changing — here’s a brief video of my thoughts on those two mergers.) But “a large law firm” will mean something different in India, Australia, the United Kingdom or the United States — and it will vary again as between Delhi and Jaipur, Sydney and Perth, London and Glasgow, New York and Denver. The real explanation, to my mind, is that law firms can only grow so large before they transition from “difficult to manage” to “utterly unmanageable.” Law firms of all sizes are unwieldy collections of ferociously independent and self-interested lawyers famously reluctant to place organizational gain above personal advancement. These are character traits, it should go No matter how you measure size, however, you would without saying, deeply inimical to building a world-class probably agree that the world’s biggest firms are behemoths. enterprise. They employ more than 2,000 lawyers (sometimes many more), they maintain more than 25 offices in numerous countries, and they generate in the neighbourhood of $2 billion in revenue every year. Norton Rose, following the completion of its Fulbright merger next June, will have an astonishing 3,800 lawyers in 55 offices worldwide. These are our profession’s giants, the legal colossi of the globe. I once had lunch with a partner in a Big Four accounting firm, and I noticed that he constantly spoke in “we.” He talked first and foremost about the firm’s work and the firm’s objectives, the firm’s future plans, competitive strengths and long-term strategies. His own expertise was important insofar as it contributed to and reinforced what the firm was doing. Contrast that with the way many lawyers usually talk: in the first-person Now, stack the planet’s biggest law firms up against the Big 4 singular. They refer to their law firm not as the strategic core of accounting firms. George Beaton of Beaton Consulting in their work, but as a beneficial platform or vehicle for what they Australia did just that in an article published earlier this do. The firm’s attributes are important for how they support the fall. Each of these four firms, George pointed out, employs lawyer’s personal focus and expertise, rather than the other way upwards of 100,000 people. The smallest of the four generates around. $20 billion annually. Each is larger than many of its big clients. If you merged the world’s two largest law firms and gave the new enterprise 5% annual growth, he noted, it would take the That’s why, if you’re looking to build a really huge law firm — whether you go the full merger route or take the Swiss Verein NOVEMBER/DECEMBER 2012 | 19 path or choose some other way there — you’re probably going Similarly, disruption has come to the legal talent model. If you to want to find a way to reduce the importance of lawyers in can get good, solid work from a contract lawyer, or a lawyer in revenue generation. Mumbai or Manila or Belfast, or in an innovative firm like Start by asking yourself: why do we want our firm to be bigger? Why do we want to expand? There are plenty of good answers to that question, most of them to do with serving multinational clients, following them around the globe, picking up new business in emerging economies, and so forth. There are also Axiom Law or Keystone Law, or from the lawyer’s own home — and you can — why would you put that lawyer in your expensive offices, on your full-time payroll, with salary and benefits and overhead? What’s so all-fired great about having tons of lawyers on hand? bad answers, including hubris, management ego, and expansion The answer to that question used to be self-evident: Leverage. as a substitute for strategy. Billable hours. Profit generation by the simple expedient of But if you’re looking to get bigger so that you can better serve your clients, then maybe, as my Edge colleagues Pam Woldow and Doug Richardson suggest, you should ask your clients what they think about that. Chances are they’ll tell you that adding bodies to files. Those days, as I’m sure you’ve noticed, are gone. The business rationales that promoted “lawyer growth” as a stand-alone and sufficient profitability strategy are gone. they’re not terribly excited by the prospect of their firm getting And lawyers, as I noted above, are often stumbling blocks to bigger. Very few people have ever found themselves saying, growth. Lawyers thrive on being big fish, and the bigger the “Why yes, I’d love to have more lawyers.” pond, the smaller and less satisfied they’re going to feel. Moreover, as Gerry Riskin and Mike White explain, simply adding lawyers in another city or state or country is no guarantee that a client with business in that jurisdiction will automatically give that business to you. Think about it: if a competitor opened up an office in one of your current locations, would you expect your own clients to instantly decamp to the Lawyers want control over their environments, and as the environment expands, their control lessens. Expansion requires short-term risk for long-term gain, and lawyers tend to dislike both. Lawyers are hard to manage, and thousands of lawyers are thousands of times harder to manage. There’s a pattern emerging here. competition’s new office? Wouldn’t you be shocked and “More lawyers in more offices in more locations” is not an end outraged if they did? Then why would you adopt expansion in itself. More revenue, higher efficiency, and greater profit, all strategies that employ exactly that line of reasoning in the other delivered courtesy of satisfied clients — that’s the end you have direction? in mind. Mergers and quasi-mergers might well be the perfect Here’s the thing: Growth in a law business is not the same thing vehicle to get you there. But there are other routes, too. as adding more lawyers. Law firms do not exist in order to If you want your firm to grow, then you need to clarify exactly, provide steady employment to the maximum number of precisely, in show-your-work detail, why that is. And you need lawyers — or, if they ever did, they don’t any longer. Law firms to remember that lawyers are no longer the only or best exist to provide legal services to the market in a cost-effective available driver of revenue in law firms. I suggest you take and profitable manner. “Adding more lawyers” is no longer the these two thoughts with you into your next law firm strategy first and only way to make firms bigger and better. meeting. Technological advances are disrupting many traditional ways in which legal work is done. Automated contract creation, ediscovery packages, data-crunching analysis systems, expert applications that answer regulatory and compliance questions, online dispute systems powered by game theory — all these programs and functionalities are available on the market, right now. They do work that lawyers used to do. Full stop. Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises. This article was originally published on Law21.ca on November 15, 2012. 20 | ARCTIC OBITER NWT LEGISLATIVE NEWS by Kelly McLaughlin, Acting Director, Legislation Division, GNWT Justice CREDIT UNION ACT parties in the course of a court process. An Act to Repeal the Credit Union Act, S.N.W.T. 2012, c.13, came into force on Assent on November 6, 2012. The Act repeals the Credit Union Act and consequentially amends two statutes. VITAL STATISTICS ACT The Vital Statistics Act, S.N.W.T. 2011, c.34, summarized in the July / August LEGAL AID ACT The Legal Aid Act, S.N.W.T. 2012, c.17, received Assent on November 6, 2012, and will be brought into force by future order of the Commissioner. The Act 2011 NWT Legislative News, will be brought into force on January 1, 2013 by order of the Commissioner registered December 7, 2012 as SI-004-2012. The Act replaces the present Act of the same HUMAN RIGHTS ACT replaces the Legal Services Act, continues An Act to Amend the Human Rights Act, the Legal Services Board of the No. 2, S.N.W.T. 2012, c.14, came into Northwest Territories as the Northwest force on Assent on November 6, 2012. Territories Legal Aid Commission and The Act amends the Human Rights Act provides a modernized framework for to add, as a prohibited ground of the operations of the legal aid program The discrimination, a conviction that is in the Northwest Territories. registered December 7, 2012 as R-086- S.N.W.T. 2012, c.16, came into force on Assent on November 6, 2012. The Act includes amendments that will allow a adoptions, stillbirths, marriages and deaths in the Northwest Territories. Vital Statistics Regulations, addition to setting out the fees payable IT’S ALL ONLINE! An Act to Amend the Judicature Act, framework for the registration of births, 2012, come into force January 1, 2013. In subject to a record suspension. JUDICATURE ACT name and provides a comprehensive under the Vital Statistics Act and the Find Certified Bills, Consolidations of Acts, Regulations and Court Rules, and the Northwest Territories Gazette at the GNWT website: content of forms, the regulations set out http://www.justice.gov.nt.ca/ Legislation/SearchLeg&Reg.shtml vital statistics information and establish the evidence required to support various applications for registration of who may have access to information person to file with the Clerk of the from Supreme Court a trade order made regulations made under the present against the Government of the under the vital statistics records. All Vital Statistics Act will be repealed on LEGAL PROFESSION ACT the expiry of December 31, 2012 (see the authority of the Agreement on Internal The Rules of the Law Society of the three repealing instruments registered Trade (AIT). Upon filing, a trade order Northwest Territories were amended by as R-083-2012, R-084-2012 and R-085- is deemed, for the purposes of enforcing five regulations, each approved at the 2012, respectively). payment, to be an order of the Court. Annual General Meeting of the Law These amendments were made to meet Society on December 1, 2012. The five an obligation agreed to by parties to the amendments AIT respecting the enforceability of December 4, 2012 as R-077-2012, R-078- trade orders. The Act also amends the 2012, R-079-2012, R-080-2012 and R-081- regulations-making authority to allow 2012, respectively. Northwest Territories were registered on The NWT Legislative News is not a comprehensive report of legislative enactments. Only items considered to be of interest to the Bar are listed. for the establishment of fees for persons who provide services to a court or to CBA-BC INVITES NORTHERN MEMBERS TO JOIN SECTIONS The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is available on the CBA-BC website: cba.org/bc NOVEMBER/DECEMBER 2012 | 21 NWT DECISION DIGEST by Maureen McGuire, Appellate Counsel, Alberta Justice COURT OF APPEAL CRIMINAL LAW – JURY TRIALS – CROWN OPENING STATEMENT R v Lafferty 2012 NWTCA 13 (CanLII) | November 6, 2012 Presiding: Justice C. Hunt judge must be correct in identifying the least, instruct the jury about the legal test for summary judgment. Here, appellant’s no palpable overriding error was made emphasize that his guilt could not be by the chambers judge in determining determined from his failure to reveal his that the issue of non-disclosure was defence to the police. Absent such an significant and amounted to a genuine instruction, there was a serious risk that issue for trial. The judge applied the the evidence was misused by the jury. right to silence and correct test and made no errors of Justice K.G. Ritter principle in reaching her conclusion. Justice N.A. Sharkey For the Appellant: C.B. Davison For the Respondent: A.P. Godfrey CRIMINAL LAW – REASONABLE DOUBT – ASSESSMENT OF CREDIBILITY for a sexual assault charge, Crown CRIMINAL PROCEDURE – CROSSEXAMINATION – RIGHT TO SILENCE counsel asked the jury to watch the R v Lafferty 2012 NWTCA 14 (CanLII) | November 9, 2012 appellant as the witnesses testified. The 2012 NWTCA 11 (CanLII) | November 9, 2012 Presiding: Justice C. Hunt trial judge gave defence counsel an Presiding: Justice C. Hunt In the opening statement in a jury trial for Crown counsel to ask the jury to observe the appellant’s demeanour, that statement did not result in trial unfairness. Defence counsel did not object, and when given an opportunity to respond, said nothing. combined with the trial This, judge’s instructions, reduced the effect of the inappropriate and incorrect opening statement. CIVIL PROCEDURE – SUMMARY JUDGMENT – STANDARD OF REVIEW Heron v Heron Justice N.A. Sharkey For the Appellant: C.G. Wawzonek Justice N.A. Sharkey the jury with a caution against reliance on demeanour. While it was improper Justice K.G. Ritter Justice K.G. Ritter opportunity to respond and instructed For the Appellant: C.B. Davison For the Respondent: A.P. Godfrey For the Respondent: A.P. Godfrey A conviction for assault causing bodily The appellant was convicted following harm was quashed and a new trial a jury trial on charges of sexual assault ordered where the trial judge did not and assault causing bodily harm. The follow R v W(D) with respect to the case was essentially a credibility contest resolution of discrepancies between with the complainant alleging the Crown and defence testimony. The trial accused knocked her unconscious and judge rejected a defence witness’s then had sex with her. The accused evidence on a speculative basis, and denied her version of events and rejected the appellant’s testimony asserted they had consensual sex earlier somewhat based on the rejection of that that week. defence witness’s evidence. Crown counsel cross- judge also rejected the complainant’s had failed to mention the earlier sexual testimony based on her lack of sobriety. activities when he gave a statement to The conviction was based solely on the police in response to the allegations. No acceptance of her daughter’s testimony, objection was made by defence counsel which contained inconsistencies and at trial. discrepancies relevant to her reliability. Appeal allowed and new trial ordered – Justice K.G. Ritter Defence counsel’s failure to object to the Justice N.A. Sharkey cross-examination was unfortunate, as For the Appellant: J.R. Scott was counsel’s failure to ask the judge For the Respondent: B. Rattan for a limiting jury charge on the topic. The reasonableness standard applies to Nonetheless, in these circumstances it review of a decision to grant or refuse was incumbent on the judge to, at the summary judgment, and the chambers The trial examined the accused about the fact he 2012 NWTCA 12 (CanLII) | November 9, 2012) Presiding: Justice C. Hunt R v Gargan There was no analysis of the daughter’s testimony – the trial judge seems to have convicted because he preferred the daughter’s testimony to the defence witnesses. 22 | ARCTIC OBITER SUPREME COURT FAMILY LAW – CHILD SUPPORT – CUSTODY AND ACCESS FAMILY LAW – CHILD SUPPORT – RETROACTIVE VARIATION FAMILY LAW – CHILD SUPPORT – CUSTODY AND ACCESS Ramm v Rice Broadhead v Broadhead 2012 NWTSC 74 (CanLII) | October 1, 2012 2012 NWTSC 71 (CanLII) | October 4, 2011 Presiding: Justice K.A. Shaner Presiding: Justice D.M. Cooper For the Applicant: K. Wilford For the Petitioner: self-represented For the Respondent: self-represented For the Respondent: E. Keenan-Bengts The applicant and respondent have a Maintenance Enforcement had been one-year old child. They have never involved until the parties reached an lived together. The child has lived with alternate agreement permitting the The respondent has been paying child the applicant since birth, and the Respondent to send money “at his own support based on an imputed income of respondent consented to her sole discretion” to the children directly. $53,000. Financial information provided custody. The parties agreed on access, When the petitioner felt the respondent on this application established that his except for the request of the applicant was not abiding by the informal annual income has fluctuated from that the court impose a condition that agreement $27,261 to $44,455. The applicant the respondent not consume alcohol Maintenance Enforcement claimed the respondent is deliberately within eight hours of exercising access reopened. Arrears were then assessed underemployed, and therefore should or during access. The condition was not on the basis of the full amount due over continue to pay support based upon an warranted. There was no evidence the the imputed income. The Court, however, respondent was intoxicated during the consideration to any money paid in did not have enough information about few visits he had with the child. accordance with the agreement. While the respondent’s education, experience Without more, the terms of access the agreement may not have vacated and skills to conclude that he is should presume the respondent will the Order, it was reasonable for the intentionally under-employed. What conduct himself as a prudent parent. respondent to think it was his decision had been imputed to him is not an The respondent requested specified when and how much to pay the accurate reflection of what he can access, but this was also denied. A children. Neither party can be faulted reasonably be expected to make in a specified access regime, while justified for reaching the agreement they did or year. This amounts to a change of in some cases, will necessarily interfere for not keeping close track of the money circumstances justifying an adjustment with the flexibility that most parents paid to the children. of require to make decisions that meet being no means by which to determine commensurate with his actual income. their children’s needs. arrears owed, if any, an Order was Quantum of support and outstanding Interim arrears reduced. accordance with the Child The respondent also sought increased Guidelines, without prejudice to the There is no jurisdiction under the access to the children. Decisions about respondent to bring an undue hardship Divorce Act to retroactively vary support access are based upon the best interests application. The respondent was also when the child is not a ‘child of the of a ordered to pay a share of the day care marriage’ as defined in the Act at the meaningful relationship with both expenses (net of subsidies and tax time of the variance application. parents is in the best interests of credits) in an amount proportionate to petitioner’s application for a retroactive children. his share of the parties’ combined increase in support for an older child income. was therefore dismissed. Heron v Fabien 2012 NWTSC 72 (CanLII) | September 26, 2012 Presiding: Justice S.H. Smallwood For the Applicant: self-represented For the Respondent: self-represented For the Children: K. Jackson support the to an amount children, and more having A graduated increase in access was therefore ordered. support was ordered in Support 16 she month requested period, the file be without However, there granted vacating arrears for the period August 2010 to November 2011. The Ongoing support for the younger child, based upon the Federal Child Support Guidelines was ordered. NOVEMBER/DECEMBER 2012 | 23 application of policies to the facts in the in employing, training and promoting appeal. The reasonableness standard is qualified, suitable and eligible target EMPLOYMENT LAW – STANDARD OF REVIEW – AUTHORITY OF STAFFING REVIEW OFFICER therefore appropriate for judicial review group persons.” of his decision. The process of “Affirmative action candidates who analyzing the reasons of a decision- meet the screening criteria shall be GNWT v DeGrow maker to determine whether a decision considered for an interview before non- 2012 NWTSC 75 (CanLII) | October 17, 2012 is reasonable involves a review of both priority candidates.” Presiding: Justice S.H. Smallwood the reasons and the result. clear For the Applicant: E. Delaney decision as a whole is reasonable or the candidate must meet the screening For the Respondent: self-represented If the that an Guideline 21 states, These make it affirmative action decision can be separated and what criteria of a competition and cannot just The Staffing Review Officer (SRO) is remains is reasonable, then a court be screened into a competition because appointed pursuant to the Public Service should consider letting the decision or of his or her status as an affirmative Act and regulations. It is expected that the valid parts of the decision stand. action candidate. a SRO will have gained experience and With respect to the issue of the expertise in interpreting the Act and jurisdiction of the SRO to make the regulations and in the staffing processes order he did, the correctness standard is of the GNWT. The decision by the SRO applicable. required him to consider GNWT’s human resources policy, consider facts and come to conclusions regarding the In this case, the SRO directed an employment competition resume with the respondent being screened into the competition, granted an interview and GNWT’s Affirmative Action Policy the opportunity to complete the states the GNWT “will give preference competition process. Pursuant to the 24 | ARCTIC OBITER regulations, if a SRO grants an appeal, significant departure from what both he can make one of two directions: that counsel had suggested. The sentencing judge therefore had a duty to signal to at which the error occurred, or be CRIMINAL LAW – SENTENCING – BREAK AND ENTER redone. the competition be restarted at the point counsel her concerns. The exchange R v Minoza that took place between the judge and committee to screen the respondent into 2012 NWTSC 76 (CanLII) | October 18, 2012 counsel, combined with the sentencing the competition, he exceeded his Presiding: Justice K.A. Shaner judge’s decision to adjourn her decision, authority. For the Crown: D. Rideout should have made it clear to counsel In directing the selection For the Accused: T. Boyd Nine months’ incarceration and 18 CRIMINAL LAW – SENTENCING ROBBERY R v Qitsualik & Michael 2012 NWTSC 73 (CanLII) | September 19, 2012 Presiding: Justice L.M. Charbonneau For the Crown: M. Lecorre For the Accused (Qitsualik): N. Homberg months probation imposed following a guilty plea to the offence of Break, Enter and Commit Mischief. It was aggravating that this was a domestic assault type matter. The victim was essentially locked in her bathroom as a prisoner in her own house. that the position they had advanced was problematic. Either counsel could have requested to file authorities in support of the range sought, but neither chose to do so. A failure to state, in explicit terms, that the judge is considering imposing a sentence outside the range proposed is not an error in principle if the record shows For the Accused (Michael): P. Fuglsang that counsel were, or ought to have Sentencing of two offenders following been, on notice that the sentencing driver’s ribs, and $20-30 was stolen. CRIMINAL PROCEDURE – SENTENCING – EXCEEDING RANGE PROPOSED BY COUNSEL Both offenders were arrested shortly R v Vegso month after the offence, and both provided 2012 NWTSC 77 (CanLII) | November 11, 2012 however, and did not sufficiently take confessions to police. Michael was 20 Presiding: Justice L.M. Charbonneau into account the large gap in the years old, and suffers from FASD. For the Appellant: S. Fix Qitsualik was 27 years old. Both were For the Respondent: M. Johnson aboriginal offenders, originally from Appeal from a sentence of 9 months’ Nunavut. incarceration plus 3 year driving their guilty pleas for robbery of a taxi driver. Michael held a stick to the Sentences of 30 months and 1 week, and 26 months and 1 week imposed – The obligation of the court is, when possible, to attempt to craft sentences that are suited to aboriginal offenders given their heritage. However, that is not guilty plea for one count of operating a motor vehicle with excess bloodalcohol. In the court below, the Crown a sentence of In this case, the sentencing judge’s comments were sufficient to alert counsel. sentence was The nine excessive, offender’s criminal record and the very prohibition imposed following an early sought judge had concerns. 30 days’ incarceration plus a two year driving early guilty plea. CIVIL PROCEEDURE – COSTS – NONRESIDENT COUNSEL WCB v Mercer 2012 NWTSC 78 (CanLII) | November 16, 2012 Presiding: Justice S.H. Smallwood For the Appellant: S.R. Paul prohibition, and the defence sought For the Respondent (Mercer): A.F. Marshall either a fine or imprisonment of 15-30 For the Respondent (NWTHRC): A. Akgungor days, plus a 12-18 month driving Mercer and the NWT Human Rights prohibition. The appellant was subject Commission sought costs in excess of to a driving suspension at the time of the tariff rate, following success on the offence. appeal from an administrative decision probation and had other outstanding Appeal allowed and sentence of (WCB v Mercer, 2012 NWTSC 57, and offences at the time of this offence. The imprisonment reduced to six months. Mercer v WCB, 2012 NWTSC 58). guilty pleas were mitigating. The sentence imposed constituted a It is commonly accepted that the always possible. It was aggravating that the offence was committed against a taxi driver – a vulnerable and easy target. It was also aggravating that a weapon was used. It was also aggravating that Michael was on NOVEMBER/DECEMBER 2012 | 25 successful party is entitled to costs. The to a period when relatives provided For the Respondent: M. Nightingale amounts set out in the Rules are childcare in exchange for a $500 The applicant brought an application applicable unless otherwise ordered by reduction in rent. Section 9(1)(a) of the under the Interjurisdictional the Court. Child Support Guidelines indicates that Orders Act. costs in excess of the tariff amounts child care expenses must be “incurred” Court directed the applicant to provide should have to be allowable expenses. A reduction further information. She did not do so. considered: the reasonableness of the in rent payable in exchange for child In the face of the applicant’s complete fees, the inadequacy of the tariffs, the care is not an “incurred” expense. The lack of response and no request for complexity of the matter, and whether respondent claimed expenses for a additional time, the application was the issue(s) have important implications nanny who cares for both the parties’ dismissed and the other relief sought by for the parties or broader implications child and the respondent’s child from the respondent was granted. for the community. The appeals were another relationship. It would not be sufficiently complex and novel to fair to expect the applicant to assume warrant costs in excess of the tariff 50% of the nanny’s salary in this amount. situation. The applicant is responsible In determining whether be ordered, courts The issues involved had importance beyond just Mercer’s situation, also warranting costs in excess of the tarrif. Costs set at $5,500 for the Commission and $5,000 for Mercer. for his pro rata share of half the cost of the nanny’s monthly salary. Support In that proceeding, the REGULATORY OFFENCES – CERTIORARI NOT AVAILABLE TO CORRECT A WRONGFUL CONVICTION the R v Schauerte respondent in Saskatchewan. The 2012 NWTSC 83 (CanLII) | December 5, 2012 applicant has specified access. The Presiding: Justice L.M. Charbonneau The child was living with The Commission’s claim for travel respondent claimed she should be For the Applicant (ex parte): K.L. Penney expenses for counsel from outside the reimbursed for the costs of driving to The respondent was prosecuted by the NWT was disallowed. Parties are free Edmonton where the applicant has City of Yellowknife and was convicted to retain any lawyer to represent them, picked up the child. Traditionally, the in absentia for driving without valid but must recognize that claims for the party who is exercising access is insurance. costs of non-resident counsel are expected to bear the associated costs, became aware that the respondent in justified only in special circumstances. barring unusual circumstances. fact had valid insurance at the relevant This generally requires the party to there is no basis for determining this time. demonstrate there were no competent case should deviate from the norm. If application for certiorari, seeking to counsel in the NWT who could the parties continue to facilitate access quash the conviction on the basis that undertake the matter. by having the respondent drive the the Justice of the Peace breached the child to Edmonton, then the applicant rules of natural justice and exceeded his will be responsible for reimbursing her jurisdiction by proceeding in the b a se d absence of the accused. FAMILY LAW – CHILD CARE EXPENSES – COSTS OF EXERCISING ACCESS Zehr v MacConnell 2012 NWTSC 80 (CanLII) | November 30, 2012 Presiding: Justice S.H. Smallwood For the Applicant: A. Duchene For the Respondent: J.R. Scott The parties have a three-year-old child. on the cu rr e n t Here fe d e ra l government mileage rate. Subsequently, the City The City brought an ex-parte Application dismissed – The Summary Conviction Procedures Act provides jurisdiction for a prosecution to proceed FAMILY LAW – CHILD SUPPORT – INTERJURISDICTIONAL SUPPORT ORDERS ex Eyolfson v Buzzi conviction. 2012 NWTSC 79 (CanLII) | October 18, 2012 The applicant claimed child care Presiding: Justice L.M. Charbonneau expenses, including an amount related For the Designated Authority: A. Vogt parte where an accused fails to appear. It is open to the respondent to seek an extension of time to appeal his 26 | ARCTIC OBITER CRIMINAL LAW – SENTENCING – SEXUAL ASSAULT Costs are a discretionary matter. R v Littlechild action is entitled to costs on a party-and 2012 NWTSC 84 (CanLII) | November 26, 2012 -party basis, calculated in accordance CRIMINAL PROCEDURE – EVIDENCE – CORBETT APPLICATION Presiding: Justice L.M. Charbonneau with the Rules. R v Lepine For the Crown: J. Bond solicitor-client basis is an exceptional 2012 NWTSC 87 (CanLII) | December 11, 2012 For the Accused: L. Stevens measure, usually reserved for situations Presiding: Justice K.A. Shaner Sentence of two years less one day where one of the parties has displayed For the Crown: D. Vaillancourt imprisonment imposed following the reprehensible conduct deserving of offender’s guilty plea to sexual assault. sanction. The purpose of Rule 180 is to The offender had sexual intercourse discourage speculative and frivolous with the complainant after she had applications for summary judgment. In passed out from intoxication. this case, the application for summary Generally the successful party in an The Awarding costs on a offender’s guilty plea was entered after judgment was dismissed as an issue hearing the evidence at the preliminary was best left to be decided at trial. That inquiry. The offender is an aboriginal is not the same as to say the application person with a tragic background. He is was unreasonably brought. There was an alcoholic. nothing He has an unrelated reprehensible in the criminal record. The prevalence of this defendant’s conduct on the summary type of crime is not something the Court judgment application. can lose sight of. therefore, not be an order for solicitor- Deterrence and There should, For the Defendant: P. Harte During a trial for sexual assault, the defence applied to prevent the Crown from cross-examining the accused on his criminal record. Defence counsel advised the court the accused would rely on an alibi defence and planned to give evidence on his own behalf. The accused has a criminal record of 22 offences between 1986 and 2004, including assault, threatening, assault with a weapon, breaking and entering, and possession of property obtained by crime. denunciation continues to be a serious client costs against consideration on sentencing. The fact Whether costs should be in the cause, in Application dismissed – Pursuant to s that the victim was passed out is an any event of the cause, or whether each 12 of the Canada Evidence Act, cross- aggravating factor. The early guilty party should bear its costs of the motion examination of an accused on his plea was highly mitigating. The joint is an issue best left in the discretion of criminal record is presumed to be submission was reasonable. the judge who will hear the trial. admissible. CIVIL PROCEDURE – COSTS IN SUMMARY JUDGMENT APPLICATIONS – RULE 180 Paul’s Aircraft Services v Kenn Borek Air Ltd. 2012 NWTSC 85 (CanLII) | December 7, 2012 Presiding: Justice L.M. Charbonneau For the Plaintiff: L. Semenchuk For the Defendant: N. Nind The plaintiff’s application for summary judgment was dismissed. The defendant sought solicitor client costs, payable forthwith. The plaintiff argued costs should be limited to the tariff amount and should be in the cause. either party. The trial judge has NOVEMBER/DECEMBER 2012 | 27 discretion to disallow the cross- was the father of the children following 2012 NWTTC 18 (CanLII) | November 30, 2012 examination where the prejudicial effect DNA testing in November 2011, and Presiding: Chief Judge R.D. Gorin of allowing it will outweigh its acknowledges his obligation to pay probative limiting child support, but claims that he cannot That the afford to pay the Guideline amount value, despite instructions to the jury. accused’s record contains no convictions for sexual offences reduces significantly the risk of prejudice. None of the convictions on the accused’s record were too remote to be probative of credibility. The alibi defence would necessarily require the jury to consider the accused’s credibility. The criminal record is highly probative of credibility and does not contain convictions which would lead the jury to engage in propensity reasining, particularly if they received appropriate instructions. TERRITORIAL COURT without undue hardship to him and his family. For the Crown: D. Vaillancourt For the Accused: C. Wawzonek Section 103(2)(b) of the YCJA allows the court to convert community supervision to custody where satisfied on reasonable grounds that the young Support ordered at the Guideline person breached or was about to breach amount - Undue hardship does not one of his conditions, and the breach mean some hardship or any hardship. was “serious”. In this case, the young The Respondent’s obligation to support person the twins will create a certain degree of conditions, but argued none of the economic hardship to his current breaches were serious. family, but that does not lead to the were: conclusion the hardship is undue. address; failure to attend counselling; “Undue hardship” is exceptional, failure to comply with a curfew; failure excessive, or disproportionate in the to comply with the rules of his circumstances. residence; and consumption of alcohol. The obligation to support children The breaches took place within four exists independently of any court days of his release from custody. admitted to breaches of The breaches failure to reside at a specified action, and arises when a child is born. DAMAGES – DOG BITE Conditional supervision order not Non-payment of child support is varied - “Serious” requires that the Benoit v Pisz deprivation to the child, and requires breach be an “important” or “weighty” 2012 NWTTC 17 (CanLII) | October 31, 2012 the non-paying parent to make up breach. Presiding: Judge B.E. Schmaltz amounts not previously paid. It is not For the Plaintiff: self-represented cases where any breach of a no-alcohol necessary that the respondent have For the Defendant: no appearance condition will be “serious”, but nothing notice of an intention to pursue child The plaintiff was bit by the defendant’s has been provided on this application to support. In this case, although undue dog, and as a result suffered severe pain support a finding that use of alcohol hardship was not found in relation to and inability to pursue her usual contributes to this young person’s the support application, ordering the activities for five days. Judgment in the criminal behaviour. respondent to pay the full support that amount of $1,503.75 granted. unable to conclude that any of the should have been paid, retroactively, breaches were “serious”, and therefore would cause a hardship to his other was unable to order that the young children. Retroactive support ordered FAMILY LAW – CHILD SUPPORT – UNDUE HARDSHIP person remain in custody. from date very short duration of supervision parentage was confirmed through DNA remaining, no variation of conditions Ootoowak v Towtongie testing. was ordered. November 2011, the There will undoubtedly be The court was Given the 2012 NWTTC 19 (CanLII) | December 03, 2012 Presiding: Judge B.E. Schmaltz For the Applicant: no appearance For the Respondent: M. Nightingale For the Designated Authority: E. Delaney The parties are the parents of four-yearold twins. The respondent accepted he CRIMINAL PROCEDURE – YOUTH CRIMINAL JUSTICE ACT – REVIEW OF CONDITIONAL SUPERVISION R v JS Maureen McGuire is an Appellate Counsel with Alberta Justice. She is a member of the Bar in the NWT, Ontario, and Alberta. Any comments or questions regarding case digests would be welcomed at her email address, [email protected]. 28 | ARCTIC OBITER S.C.C. UPDATE by Eugene Meehan, QC, Partner, Supreme Advocacy LLP Here is a summary of all appeals and CRIMINAL LAW: CARE OR CONTROL all leaves to appeal (ones granted – R. v. Boudreault so you know what areas of law the (Qué. C.A., November 11, 2011) (34582) S.C.C. will soon be dealing with in 2012 SCC 56 (CanLII) | October 26, 2012 case any may be an area of law “Care or control”, within the meaning you’re litigating/advising/managing). of s. 253(1) of the Criminal Code, For leaves, I’ve specifically added in signifies (1) an intentional course of both the date the S.C.C. granted conduct associated with a MV; (2) by an leave and the date of the C.A. judgment below, in case you want to track and check out the C.A. judgment. impaired (3) in circumstances that CRIMINAL LAW: PRIOR INCONSISTENT (CIVIL) STATEMENTS create a realistic risk, as opposed to a R. v. Nedelcu remote possibility, of danger to persons (Ont. C.A., Feb. 24, 2011)(34228) or property. [emphasis in original]. 2012 SCC 59 (CanLII) | November 7, 2012 Trial judges must provide juries with clear instructions as to the use they can CRIMINAL LAW: DRINKING AND DRIVING make of the evidence given at the prior R. v. Dineley that trial judges have been providing in (Ont. C.A., November 18, 2009)(33640) cases where an accused has given alibi 2012 SCC 58 (CanLII) | November 2, 2012 evidence. The jury would be told that The Tackling Violent Crime Act limits the they could not use his discovery evidence an accused can adduce to raise evidence for its truth, but only to test (Alta. C.A., Feb. 16, 2011)(34205) doubt of his credibility and for no other purpose; 2012 SCC 65 (CanLII) | November 29, 2012 breathalyzer test results. To rebut the if they were to reject the accused’s trial The Alberta Board presumptions of accuracy and identity evidence, they could not use that considered the relevant provisions of applicable to breathalyzer test results, rejection to bolster the Crown’s case. To the Code and facts presented to it by the which favour the Crown, an accused convict, the jury would have to be parties, its interpretation of the Code and can no longer simply rely on an expert satisfied, on the basis of the remaining conclusions reasonable, and its decision opinion that the amount of alcohol evidence, that the Crown had proved its therefore entitled to deference. consumed is inconsistent with the test case. APPEALS ADMINISTRATIVE LAW: JUDICIAL REVIEW; ADEQUACY OF REASONS Construction Labour Relations v. Driver Iron Inc. Labour Relations about the reliability proceeding, similar to the instructions results — what is known as the “Carter defence” (R. v. Carter (1985), 19 C.C.C. BANKRUPTCY & INSOLVENCY: ENVIRONMENTAL CLEAN-UP Newfoundland and Labrador v. AbitibiBowater Inc. (3d) 174 (Ont. C.A.)). The legislation does not apply retrospectively. CRIMINAL LAW: SEARCH & SEIZURE R. v. Aucoin (N.S.C.A., July 13, 2011)(34349) 2012 SCC 66 (CanLII) | November 30, 2012 Securing an accused in the rear of the 2012 SCC 67 (CanLII) | December 7, 2012 CRIMINAL LAW: DRINKING AND DRIVING Environmental clean-up orders are R. v. St‑Onge Lamoureux prelude to doing so, is a breach of the “claims” under the CCAA and do not (Qué. C.A., Sept. 15, 2010)(33970) Charter right against unreasonable have any “super-priority”. 2012 SCC 57 (CanLII) | November 2, 2012 search and seizure. But s. 24(2) permits Similar summary to that immediately the cocaine found to be admitted into above. evidence. (Qué. C.A., May 18, 2010)(33797) cruiser and patting him down as a NOVEMBER/DECEMBER 2012 | 29 for Viagra, thereby invalidating the CRIMINAL LAW: FIREARMS OFFENCES patent. MacDonald, et al. v. R., et al. invention when it obtained the patent ELECTIONS: CONTESTATION Opitz et al. v. Wrzesnewskyj et al. (N.S. C.A., May 11, 2012) (34914) (Ont. C.A., May 18, 2012)(34845) 2012 SCC 55 (CanLII) | October 25, 2012 Only irregularities that affect the result of an election and thereby undermine the integrity of the electoral process are grounds for overturning an election; administrative errors and mistakes are not. LABOUR LAW: STAFFING; TRIBUNAL REVIEW 2012 NSCA 50 (CanLII) | November 22, 2012 SCHOOLS: REMEDIAL SPECIAL NEEDS EDUCATION Were there firearms offences where a Moore v. B.C. (Education) door to a police officer. person with a gun in his hand opens the (B.C.C.A., Oct. 29, 2010)(34040/34041) 2012 SCC 61 (CanLII) | November 9, 2012 If a service is ordinarily provided to the CRIMINAL LAW: INMATE TRANSFER public, it must be available in a way that does not arbitrarily — or unjustifiably Diane Knopf, Warden of Mission Institution, et al v. Foster — exclude individuals by virtue of their (B.C.C.A., November 9, 2011) (34608) membership in a protected group. 2011 BCCA 451 (CanLII) | November 22, 2012 In what circumstances can an inmate Canada (Attorney General) v. Kane stop a transfer from medium security to (Fed. C.A., Jan. 19, 2011)(34147) maximum. 2012 SCC 64 (CanLII) | November 23, 2012 There is nothing in either the applicable legislation or regulations which requires a deputy head to utilize a particular LEAVES TO APPEAL GRANTED CRIMINAL LAW: INMATE TRANSFER the position at issue is either a new or CRIMINAL LAW: CROWN/POLICE MISCONDUCT reclassified position. Babos, et al. v. R., et al. selection process depending on whether 2012 QCCA 471 (CanLII) | November 22, 2012 Teva Canada Ltd. v. Pfizer Canada Inc (B.C.C.A., November 9, 2011) (34607) 2011 BCCA 452 (CanLII) | November 22, 2012 (Qué.. C.A., March 14, 2012) (34824) PHARMACEUTICALS: GENERIC VIAGRA Diane Knopf, Warden of Mission Institution, et al v. Zuria Was there police interference in the Similar summary to that immediately above. context of this case involving arrest and discovery of a prohibited semi- automatic firearm. CRIMINAL LAW: INMATE TRANSFER (Fed. C.A., Sept. 23, 2010)(33951) Diane Knopf, Warden of Mission Institution, et. al v. Khela 2012 SCC 60 (CanLII) | November 8, 2012 (B.C.C.A., November 9, 2011) (34609) Pfizer failed to properly disclose its 2012 BCCA 335 (CanLII) | November 22, 2012 News Events Publications Forms www.lawsociety.nt.ca It’s all online. 30 | ARCTIC OBITER Similar summary to that immediately above. CRIMINAL LAW: MENTALLY DISORDERED ACCUSEDS CRIMINAL LAW: SECURITY CERTIFICATE REGIME; EVIDENCE EXCLUSION considered in sentencing. Minister of Citizenship and Immigration, et al. v. Harkat, et al. LABOUR LAW IN QUEBEC: PREGNANCY (Fed. C.A., April 25, 2012) (34884) Conception v. R., et al. 2012 FCA 122 (CanLII) | November 22, 2012 Dionne v. Commission scolaire des Patriotes, et al. (Ont. C.A., May 24, 2012) (34930) There is a sealing order in the case, in (Qué. C.A., Apr. 2, 12) (34854) 2012 ONCA 342 (CanLII) | November 22, 2012 the context of the constitutionality of 2012 QCCA 609 (CanLII) | October 25, 2012 Does consent have to be given for a Canada’s security certificate regime and What rights and benefits does a ‘casual treatment order. the exclusion/admissibility of CSIS substitute teacher’ who is pregnant get. ‘human sources’ information. CRIMINAL LAW: NECESSITY; DEATH -ACCELERATION CRIMINAL LAW: SEXUAL OFFENCES LABOUR LAW: FREEDOM (NOT) TO ASSOCIATE Mailhot v. R. R.L. v. R. Bernard v. A.G. Canada, et al. (Qué. C.A., May 23, 2012) (34881) (Qué. C.A, Apr. 5, 2012) (34871) (Fed. C.A., Mar. 16, 2012) 2012 QCCA 964 (CanLII) | November 22, 2012 2012 QCCA 635 (CanLII) | November 22, 2012 2012 FCA 92 (CanLII) | November 22, 2012 Is death-acceleration murder. There is a publication ban in this case, Where an employee chooses not to join as well as a publication ban on the name a union, can the employer be prevented of the party, and the court file contains f ro m information not available for inspection information to the union. CRIMINAL LAW: PROSTITUTION; BROTHELS intellectually challenged charged with a series of sexual offences. 2012 ONCA 186 (CanLII) | October 25, 2012 Code prohibitions brothels, communicating pimping, for the and purposes constitutionally valid. CRIMINAL LAW: THREATS; WEARING A WIRE R. v. McRae LABOUR LAW IN QUEBEC: WAL MART CLOSURES United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp. (Qué. C.A, May 11, 2012) (34920) 2012 QCCA 903 (CanLII) | November 22, 2012 (Qué. C.A., Feb. 3, 12) (34743) What are the labour law issues when 2012 QCCA 236 (CanLII) | October 25, 2012 Wal-Mart closes a store in Quebec. CRIMINAL LAW: PROVOCATION In what circumstances can prison Cairney v. R. evidence from an inmate wearing a wire (Alta. C.A., Oct 5, 11) (34848) be admitted. 2011 ABCA 272 (CanLII) | October 25, 2012 Should provocation have been left with the jury in this case. co n t a ct accused (Ont. C.A., Mar. 26, 12) (34788) against h om e by the police, in the context of an A.G. Canada and A.G. Ontario v. Bedford, Lebovitch, Scott Are the Criminal di s c lo s in g IMMIGRATION & CRIMINAL LAW: REMOVAL; SENTENCING Pham v. R. (Alta. C.A., June 28, 2012) (34897) 2012 ABCA 203 (CanLII) | November 8, 2012 Should immigration consequences be LABOUR LAW: PHOTOGRAPHING PICKET LINES Information and Privacy Commissioner v. United Food and Commercial Workers, Local 401 et al. (Alta. C.A., Apr. 30, 2012) (34890) 2012 ABCA 130 (CanLII) | October 25, 2012 Can a union photograph and publicize workers who cross a picket line. NOVEMBER/DECEMBER 2012 | 31 LANGUAGE RIGHTS: NONCERTIFIED TRANSLATIONS What are the pension implications when (N.B. C.A., Apr. 12, 2012) (34863) a Crown Corporation becomes a public 2012 NBCA 33 (CanLII) | October 25, 2012 company. Is there interference with economic relations in the context of a family Conseil Scolaire Francophone de la Colombie-Britannique, et al. v. B.C. (B.C.C.A., June 27, 2012) (34908) 2012 BCCA 282 (CanLII) | November 22, 2012 Can non-certified translations be used in court. business. TAX: FREEDOM OF INFORMATION John Doe, Requester, et al. v. Minister of Finance (Ontario) et al. (Ont. C.A., Feb. 24, 2012) (34828) November 15, 2012 There is a sealing order in this case, in the context of pre-legislative material. PENSIONS: CROWN CORP BECOMES PUBLIC COMPANY Telecommunication Employees Association of Manitoba Inc. et al. v. Manitoba Telecom Services Inc., et al. (Man. C.A., Feb. 10, 12) (34763) 2012 MBCA 13 (CanLII) | October 25, 2012 TORTS: INTERFERENCE WITH ECOMOMIC RELATIONS Eugene Meehan, QC, is a Litigation Partner at Supreme Advocacy LLP, Ottawa. His primary area of work is with the Supreme Court of Canada, mainly assisting other lawyers in taking cases (both Leave to Appeal and Appeal), and complex legal opinions. For previous summaries, and to keep up-to-date with all SCC appeals and leave to appeals, contact Eugene at [email protected]. A.I. Enterprises Ltd. and Alan Schelew v. Bram Enterprises Ltd. and Jamb Enterprises Ltd. RESOURCES The Legal Profession The Law Society of the Assistance Conference NWT and the CBA-NT (LPAC) of the Canadian Bar Assocation is Branch have partnered dedicated to helping lawyers, judges, law with Human Solutions to offer members students and their families with personal, free, private and confidential professional emotional, health and lifestyle issues counseling through a network of Lawyer Assistance resolution of personal issues or work Programs, a national 24-hour helpline and related difficulties. Provincial Programs. If you need assistance, please call the helpline or visit their website. 1-800-667-5722 and consultation for the This service is available 24 hours a day, 7 days a week. Call any time. 1-800-663-1142 www.lpac.ca Mentor Program Members from Northwest Territories and Nunavut are invited to call the office of the Alberta Practice Advisor and ask for the Mentor Program. Please be advised that not all of the mentors may be totally familiar with NT statutes and practice. There is no cost. CALL 1-888-272-8839 Practice Advisors The Practice Advisors from the Law Society of Alberta are available to discuss legal, ethical and practice concerns, and personal matters such as stress and addiction. Members are invited to contact the Practice Advisors at any time: Ross McLeod (Edmonton) Tel: 780-412-2301 or 1-800-661-2135 Fax: 780-424-1620 [email protected] Nancy Carruthers (Calgary) Tel: 403-229-4714 or 1-866-440-4640 Fax: 403-228-1728 [email protected] CPD in Your Own Backyard! CBA’s National Environmental, Energy & Resources Law Summit Natural Resources and Energy Legal Developments: North and South of 60 Photo Courtesy of Diavik Diamond Mine You won’t have to travel far this June to get your Professional Development (PD) hours! This two day Canadian Bar Association (CBA) conference will feature leading experts discussing legal procedures and challenges associated with resource extraction projects: off-shore resource development, environmental assessment issues, renewable energy, streamlining regulatory processes, sustainable development, and corporate social responsibility. Earn PD credits while networking with your colleagues and legal experts – north and south of 60 – all in your own backyard! The Explorer Hotel, Yellowknife, N.W.T. June 20-21, 2013 Space is limited - REGISTER NOW! www.cba.org/cbapd/environment.aspx