Law Matters | Fall 2013

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Vol. 38 No. 3 Fall 2013

Law Matters | 1

EDITOR’S IN THIS ISSUE President’s Report

3

Legal Aid Alberta: Celebrating 40 Years

4

What’s Happening

6

View from the Bench

7

Practice Pointers

8

Back to Basics: The Relevance of Us

9

Unsung Hero

10

Avoiding & Resolving Disputes: 11 Limited Scope Retainers Adapting to Change: Self Represented Litigants

12

Judicial Updates

12

CBA National News

13

Front and Centre

14

Alberta Branch News

16

LESA: Annual Refresher

18

PBLA: Give Thanks & Give Back

19

Cross-Section North

20

Assist

20

Cross-Section South

21

Notice to Profession

21

The Student Perspective

22

Health Matters: Leavitt Institute 23 for International Development Point: The Irony of Political Expediency

24

Counter-Point: We Beg to Differ 25 ALRI: The Law Reform Network

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Classified et cetra

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Non-profit Announcements

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PAGE As access to justice has been much talked about in the legal community these past months, it seems only appropriate that our fall edition of Law Matters is focused on that very topic.

It is also apt that we take this opportunity Shannon McGinty to celebrate the 40th Anniversary of Legal Aid Alberta with a special two-page spread.

In addition, our “Unsung Hero” feature joins Legal Aid Alberta in celebrating the recipients of the 6th Annual Legal Aid Alberta Access to Justice Awards.

Former CBA Alberta Branch President Gillian Marriott, QC, pulls double duty in this edition, first discussing the pros and cons of Limited Scope Retainers, and then describing the many ways in which the legal community can “give back” in her article from Pro Bono Law Alberta.

Turn to page 23, and be inspired by Tim Burnham’s work with the Leavitt Institute for International Development. Read about his experiences volunteering with the institute and teaching law courses at several universitites acorss the Ukraine, and learn more about the ways the Leavitt Institute makes a difference around the world.

Contributing Authors this Issue Michael Bates Timothy J. Burnham Siwei Chen Marian V. De Souza Kevin Feth, QC Jennifer Flynn Judge A.A. Fradsham Patricia Johnston, QC

Anne Kirker, QC Kathryn Kitchen Greg Lepp, QC Peter Lown, QC Ola Malik Gillian Marriott, QC Carolyn McCartney

By Shannon McGinty

This edition of Law Matters also has a very special feature, courtesy of Michael Bates, and Assistant Deputy Minister of the Alberta Crown Prosecutor Service Greg Lepp, QC. Go to pages 25 and 26 to read their very interesting point and counterpoint articles regarding crime initiatives in the province.

Be sure not to miss the Alberta Branch News page, as there are many new initiatives being undertaken at the CBA in our province, including a new member savings partner, new website, and more!

You will also find included with your edition of Law Matters more information on the upcoming Alberta Law Conference, held at the Westin Hotel in Calgary, Januay 30 and 31. Take a look at the enclosed brochure for more information on PLE sessions, networking opportunities, and social events.

I want to close by welcoming everyone back to the CBA for another year. Our sections are back in full swing, with many of our committees gearing up for another great year of progress. Your editorial committee is also preparing to meet for another year. We are committed to delivering an informative and interesting publication to our readers every quarter.

We welcome and encourage your feedback and thoughts on future topics you would like to see covered. a

Karen McDougall Jenny McMordie Kendall Moholitny Sheila Pahl Jacqueline Schaffter, QC Aaron Stephenson Anthony G. Young, QC

EDITORIAL COMMITTEE

Top Row (L to R): Katherine Bilson (Calgary); Terrence A. Cooper, QC (Fort McMurray); Enrique Dubon-Roberts (Calgary); Anthony G. Young, QC (Calgary); and Devin Mylrea (Calgary).

Bottom Row (L to R): Geoff Ellwand (Calgary); Melissa Gorrie (Edmonton); Robert Harvie, QC (Lethbridge); Dragana Sanchez-Glowicki (Edmonton); and Gillian Marriott, QC (Calgary).

2 | Law Matters

PRESIDENT’S

REPORT

In a world of instant, on-line communication and social media, avenues of communication are not lacking. You can find CBA on Facebook, Twitter, LinkedIn and staying connected is easy through online publications, programs and platforms.

Well, I thought I had it covered, until I recently discovered I’m not part of the “Circle.”

Communicating effectively can be challenging for any organization.

Thanks Marian V. De Souza, to Lee-Anne Wright, CBA Alberta’s President Communications and Marketing Specialist, you will notice new talent for CBA communications; we hope you are enjoying the resurrected on-line newsletter and a new website will launch in the New Year.

Consistent with the view that nothing beats face-to-face, CBA Alberta recognizes the importance of maintaining offices in Edmonton and Calgary, in-house section meetings, and this hardcopy newsletter. I hope you benefit from these choices of service. During my year as President, it is my hope to increase communication within the CBA, with our partners and stakeholders, combine resources and advance common interests.

I look forward to serving the 2013-14 Executive term with Vice President Steve Mandziuk, QC, Treasurer Wayne Barkauskas, Secretary Jeremiah Kowalchuk, and Past President Cyril Gurevitch, QC and Maureen Armitage, Executive Director. Thanks to Jeff Wise, QC, who served his term with enthusiasm and diligence. Former Presidents play a key role in the branch, as engaged and experienced leaders, and are often relied upon long after their tenure.

Speaking of past Presidents, sincere thanks to Honourable Judge Don Higa for his kind introduction in the last edition. I hope to build on CBA’s success and live up to the commendation. At this stage, I can say the part about being coy about my age is true.

CBA Alberta’s strategic plan involves Community, Education, Influence and Leadership, Cohesion, and Operational Excellence and it is my pleasure to update you on developments and areas of focus.

The new Executive term begins at the Canadian Legal Conference, held this year in Saskatoon. Issues at the forefront were Access to Justice and Legal Futures. Dr. Melina Buckley, Chair of the National Action Committee on Access to Justice in Civil and Family Matters, presented “Reaching Equal Justice: An invitation to envision and act.” CBA Alberta’s Access to Justice Committee Chair, Ola Malik and a representative of the Executive will join a meeting of stakeholders in November at the invitation of Justice Minister Jonathan Denis, QC to discuss sustainable solutions for Alberta. You can access the full report online on the CBA national website.

The Legal Futures initiative will identify what it will take for the legal industry in Canada to remain viable, competitive, and relevant.

Globalization, technology, and changing demographics are some of the issues being considered. We look forward to hosting CBA National President Fred Headon who will present a report at the Alberta Law Conference. In the meantime, you can visit www.cbafutures.org.

By Marian V. De Souza

Many important resolutions were passed at the national meeting of Council. In particular, the Alberta branch moved a resolution to urge the Federal Government to appoint additional superior court judges; the national resolution passed unanimously. Alberta also weighed in on a resolution regarding diversity on the Bench; and relevant to all, a resolution to promote health and wellness in the legal profession passed unanimously.

As President and throughout his term on the Executive, Cyril Gurevitch, QC made progress on a province-wide initiative to help ensure lawyers are aware of career opportunities in communities outside major centers. Cyril and Maureen Armitage will join counterparts across the country in an expanded discussion and share best practices for sustainable results.

The corollary is to ensure communities across Alberta enjoy benefits of CBA membership. The branch has increased its commitment to make sections available to members outside Calgary and Edmonton.

In the South, 23 webcasted sections are available, and 10 are offered in the North. A complete list can be found at www.cba-alberta.org where you will also find a coupon to “test drive” a section of your choice.

A new national fee structure has been implemented, providing members more options. Portfolio and Portfolio Plus packages were introduced, offering education credits for continuing professional development, including section membership, national programming, and conference registration. Albertans have been quick to see the benefits of tiered membership and is leading the Country in membership growth.

Already, Executive has consulted with membership and developed policy on recent government matters, including proposed changes to the Land Titles system, advocating for continuation of a fully funded Drug Treatment Court in Calgary, and supporting independence of the judiciary before a Compensation Review Commission for Justices of the Peace.

Your Executive also remains committed to reviewing operations, structure, and finances to ensure resources are used effectively and efficiently. Steve Mandziuk, QC led a committee to identify program opportunities and ideas have already been implemented with tangible results; more will be delivered within the year.

Our traditional premier event, the Alberta Legal Conference will be held in Calgary at the Westin Hotel, January 30 & 31, 2014. Chairs, Loretta Bouwmeester and Jennifer Baugh and their team have created an exciting education and social program. The conference theme is “Communicate,” covering communication with clients, employees, and colleagues with today’s rapidly changing technology.

Already drawing interest is a panel entitled “Social Media and Evidence,” hosted by Provincial Court. The Young Lawyers panel will feature CBA National President Fred Headon, and the Distinguished Service Awards will be co-presented with the Law Society of Alberta.

For more details, the conference brochure is enclosed and we look forward to welcoming you in Calgary.

If you have any questions, comments, or suggestions, I hope to hear from you, via Facebook, Twitter, LinkedIn, email or call me (403) 537 5508. a

Law Matters | 3

C E L E B R AT I N G

4 0 Ye a r s i n A l b e rt a

Jacqueline Schaffter, QC

In a 2007 interview with the Edmonton Journal, former Chief Justice Allan Wachowich was quoted as saying, “Recently one of them (a Norquest College student) asked, ‘How much do you make?’ I answered, and then he said, ‘But how much do you make including bribes?’” It was a question posed by a recent immigrant from Eastern Europe.

It is a query that does, and should, incite discussion around the rights of individuals to access justice. To most Canadians, this basic right is often taken for granted and an assurance that everyone will be treated fairly and justly is expected.

However, if you do not know what your rights are or cannot enforce them because of lack of financial resources, rights have little means. This is what makes Legal Aid Alberta a vital component to the makeup of legal rights in our province.

The roots of this organisation reach back to as early as 1932 in Canadian law, when the Supreme Court Rules were amended to include a provision that would ensure “needy litigants” had representation in Alberta for civil matters. It would be another thirty years before there would be an agreement between the Law Society and the Attorney General regarding legal aid in the province and a provision established to cover criminal matters, but this wasn’t a stopping point.

Communities across the province continued to change and so too did the landscape of what would be required by Albertans through legal aid, and a group of forward thinking individuals came together to form the not-for-profit Legal Aid Society of Alberta. It was 1973, and while a worldwide oil crisis created enourmous wealth in Alberta, many of its residents were not part of this modern day gold rush. It was as clear to the government and legal profession then as it is now that the need for this new Society would be significant and its roles would evolve along with the needs of the province.

Knowing there would be a need for on-going change and renewal would have been an easy glance forward for the Society founders, but the changes in the province over the past 40 years have been significant and perhaps more so than originally envisioned. The population alone has grown from 1.6 million in 1973 to more than 4 million today. The prevalence of issues such as Fetal Alcohol Spectrum Disorder have created a need to examine how these cases are handled

4 | Law Matters

to ensure we are doing what is necessary to monitor for the best means to support these individuals. This wasn’t at the hub of as many legal issues forty years ago as it is today.

Knowing the demand will continue to grow and the need to find innovative ways to provide legal services has been the driving force for many changes at Legal Aid Alberta since its inception. It now includes family, youth and refuge/immigration law, the emergency protection order program, family settlement services, duty counsel, a criminal resolution unit, and, what has become a very effective Legal Services Centre operation across the province. All Albertans, regardless of financial circumstances, can call a Centre from anywhere in the province and receive support, which also creates greater access for those Albertans in remote areas or with mobility challenges who are unable to easily access offices. This change alone means more people being supported in shorter times and in more specific terms. Add in Brydges duty counsel services, which are offered on a 24hour basis to individuals under arrest, and in 110 languages, and you have a breadth of services that far surpasses those of the early 70s.

In fact, in the 2012-13 fiscal year more than 220,000 services were offered to Albertans, including more than 30,700 certificates to lawyers for limited scope and full representation. And, there were 808 active private bar members on the roster list, with 754 accepting at least one certificate. The support of the legal community has been substantial in the past and critical to the success of Legal Aid Alberta. This continues today with an evolution of services that bridges lawyers and community partnerships to serve the diverse Alberta population.

Ensuring access to justice is everyone’s responsibility, and it was given emphasis by the CBA earlier this year with the release of: Reaching Equal Justice: An Invitation to Envision and Act, where it highlighted the need for greater engagement and sustained collaboration of all the stakeholders. The CBA continues to advocate for increased resources for a judicial system but as importantly, is working to educate the legal community about access to justice issues and engage others in the discussion by encouraging greater participation of the profession in delivering pro bono and legal aid services.

The evidence of the success collaboration can create rests in the strength drawn from the legal profession and partnerships with complementary organizations. There are many projects such as the 1000 Voices initiative in Calgary. Legal Aid Alberta, Calgary Legal Guidance, and Pro Bono Law Alberta

joined forces to offer guidance on a broad range of civil law issues in a consultative way that is eliminating duplication of services. It is a solid example of how bringing together a cluster of services can benefit the client while creating cost efficiencies. Another significant example is the partnership with Siksika Nation in Southern Alberta. In consort with Siksika Justice, Legal Aid Alberta is providing services to Aboriginals in their own community. The team at Siksika provides assessment services, legal information, referrals and advice, brief services, duty counsel, criminal resolution services and full representation. This combination amounts to some very significant, effective services being provided.

These types of unique partnerships are becoming the norm at Legal Aid Alberta, and the future holds a vision for the development of more effective partnerships to help meet the needs of Albertans.

Through community outreach programs at the universities in Edmonton and Calgary, Legal Aid Alberta is creating meaningful learning experiences for law students in these cities. Since 2010, it has been working with the Faculty of Law at the University of Alberta in providing a Low Income Individuals and the Law clinical placement course. The

Student Legal Services at the University is supported by Legal Aid Alberta staff counsel who provide guidance through a number of initiatives. For those students at the University of Calgary, there is the opportunity to attend Calgary family and youth court to assist with emergency protection order duty counsel three days a week. This provides experience in some key areas for the students. In a broader context, Legal Aid Alberta offers public education sessions, which are available throughout the year and through these sessions, Albertans are becoming more aware of their legal rights and responsibilities.

The path forged by Legal Aid Alberta is only the beginning of a service delivery complement that will look to create a lasting resolution for Albertans with legal issues. It is no longer enough to believe legal issues happen or result in isolation of other issues, and the future of Legal Aid Alberta rests in aligning with those service areas and resources that will create more meaningful outcomes for the people in this province. The Board of Directors appointed in 1973 knew the importance of looking to the future to create the present, and it is with that same foresight that our staff and our board will map the future of Legal Aid Alberta. a

Back Row (L to R): Denise Lightning, Richard Luciani, Adam Letourneau, QC, Lance Clark, Martin West, Lori Bokenfohr, Dan Ritter Front Row (L to R): Maria David-Evans, Robert Calvert, QC, Derek Cranna (Chair), Jacqueline Schaffter, QC Missing: Linda Cook Law Matters | 5

W H AT ’ S

HAPPENING November 14: The Canadian Bar Association, British Columbia Branch presents New Vistas in Law Practice Management: Managing Your Lawyers in a New Way. Online.

Contact 1-888-687-3404 or pd@cbabc.org.

Patricia Johnston, QC

15: The Canadian Bar Association, Ontario Branch presents Clients, Clients Everywhere: Essential Tips for Aspiring Rainmakers (YLD). Toronto, Online.

Contact 416-869-1074 or registrations@oba.org.

19: The Canadian Bar Association presents Drafting Effective Retainer Agreements. Online. Contact 1-800-267-8860 or pd@cba.org.

19: The Canadian Bar Association, Ontario Branch presents the 13th Annual Franchise Law Conference. Toronto, Online. Contact 416-869-1047 or registrations@oba.org

19: The Canadian Bar Association presents Fighting Foreign Corruption: Complying with Tough New Laws in Canada and Around the World (Session II). Calgary, AB. Attend in person or online. Contact Nicole Suthers at 1-800-267-8860 or via email at nicoles@cba.org.

22: The Canadian Bar Association, Ontario Branch presents the 12th Annual Charter Conference. Toronto, Online. Contact 416-869-1047 or registrations@oba.org.

25: The Canadian Bar Association, Ontario Branch presents Introduction to Workplace Safety and Insurance Law (YLD).

Online. Contact 416-869-1047 or registrations@oba.org.

26: The Canadian Bar Association, Ontario Branch presents Fixing Broken Trusts.

Online.

Contact 416-869-1047 or registrations@oba.org.

29-30: The Canadian Bar Association presents the 14th Annual Administrative Law, Labour and Employment Law Conference.

Westin Ottawa, Ottawa, ON. Contact Lauren DalBello at 1-800-267-8860, ext.190 or via email at laurend@cba.org.

December 2: The Canadian Bar Association, Ontario Branch presents the 5th Annual Class Actions Colloquium. Online. Contact 416-869-1047 or registrations@oba.org.

6: The Canadian Bar Association, Ontario Branch presents “I Am Not a Doctor, But I Play One in Court” Medical Experts and Damages in Personal Injury Files. Online. Contact 416-869-1047 or registrations@oba.org.

10: The Canadian Bar Association presents Hop Topics: Work Permits - The New Enforcement Environment. Online. Contact 1-800-267-8860 or pd@cba.org.

6 | Law Matters

By Patty Johnston, QC

12: The Canadian Bar Association presents Structuring First Nations Enterprises.

Online.

Contact 1-800-267-8860 or pd@cba.org.

January 14: The Canadian Bar Association presents Negotiation Techniques for the Litigator. Online. Contact 1-800-267-8860 or pd@cba.org.

28: The Canadian Bar Association presents The Virtual Office: Is It Right for You? Online. Contact 1-800-267-8860 or pd@cba.org.

30-31: The Canadian Bar Association, Alberta Branch presents the Alberta Law Conference. Westin Calgary, Calgary, AB. Visit www.cba-alberta.org for more details.

February 11: The Canadian Bar Association presents Drafting Pitfalls: Most Litigated Business Clauses. Online. Contact 1-800-267-8860 or pd@cba.org.

20: The Canadian Bar Association presents Drafting Motion Materials. Online. Contact 1-800-267-8860 or pd@cba.org.

21-23: The Canadian Bar Association presents CBA Mid-Winter Meeting of Council. Fairmont Chateau Laurier, Ottawa, ON. Visit www.cba.org for more details.

March 13: The Calgary Bar Association Presents the 2014 QC Dinner.

Members only. Visit www.calgarybarassociation for more details.

April 6-8: The Canadian Corporate Counsel Association presents the 2014 National Conference.

Calgary, AB. Visit www.cancorpcounsel.org for more details. a

Please send your notices to: Patricia (Patty) Johnston, QC c/o Alberta Energy Regulator Phone: 403-297-4439 Email: patricia.johnston@aer.ca

VIEW FROM THE

BENCH

By the time you read this, family law courts will be knee deep in parental disputes about Christmas access, some poor judges will be engaged in the annual holiday tradition of hearing applications filed by taxpayers who find civic Christmas decorations an odious assault upon their sensibilities, and many of us will be again wondering why “National Lampoon’s Christmas Vacation” didn’t win an Oscar for best documentary.

For the first time in a very long time, the calendar is such that the Provincial Court is sitting on December 24 which brings to mind “A Christmas Carol” by Dickens. Doubtless the Judges will see themselves as Bob Cratchit running home to family and hearth at the end of the long day (having been grudgingly told they may have Christmas Day off); litigants may see the Judges as being Scrooge returning late to his rooms with a heart as cold as the winter weather.

It is all a matter of perspective.

Hon. Judge A.A. Fradsham

I shouldn’t and won’t speak for my colleagues, but I personally find matters of judicial interim release (bail) and sentencing more poignant in the days immediately before Christmas. However, one does what one must do, and I expect any protestations from me that “this is going to hurt me more than it is going to hurt you” would be met, at best, with the phrase “Bah Humbug”, or worse.

Yes, after being trained to the Charles Dickens/Norman Rockwell/ Hollywood depiction of Christmas, it can feel a wee it odd wielding the sword of justice when there is a red bow tied to it. To be a bit more classical, one does not expect to see the blindfolded Lady Justice, complete with sword and scales, standing under the mistletoe.

However, whenever court is done on Christmas Eve, I have a pretty good idea of what will then await me.

I am certain, well beyond a reasonable doubt, that there will be some small thing, or large multiple thereof, which needs to be picked

Four of our newest acquisitions

By Hon. Judge A.A. Fradsham

up on the way home, and there is little in this world which better conveys and promotes Christmas cheer and joy than a quick trip into a shopping centre on Christmas Eve where there will be collected a large mass of humanity exhibiting patience and tranquility similar to that which characterized those who sought room on one of the Titanic’s lifeboats.

And I know that I will have been sent for some item which either is usually readily available (such as sage for the dressing), but the last package of which left the store an hour ago, or is an item which has not been seen in this part of the world since the Berlin airlift of 1948.

I have been around for enough of these annual Christmas Eve scavenger hunts to have noted a significant change in how the drama unfolds. You see, it used to be that there were no cell phones. Yes, Virginia, not only is there a Santa Claus, but there was a time when one was not in constant communication with the rest of the world, and the world had to function without knowing what one had for breakfast... oh, the horror of it all. In those dark days before cell phone towers sprouted up like milkweed, when one came to the terrifying realization that one has failed in the assigned search and seizure mission, one had the entire time it took to get home to figure out how to break the news in such a way as to dull the inevitable spousal disappointment (e.g., “Sorry about the sage, but I hear there is a new study which says that turkey stuffing causes wrinkles”).

Sadly, with the advent of the cell phone, one is now compelled to report one’s failure in real time, and immediately receive alternate orders (e.g. “See if the Costco at the diagonally opposite end of the city has it”). Yes, the cell phone facilitates multiple episodes of failure and humiliation where before only one existed.

However, I know that eventually, I will beat my way home through the crowds and the snow and the snarled traffic, and when I finally arrive, I will be met by the assembled grandchildren who will be bouncing off the walls with impatient anticipation of the coming morning.

Seeing Christmas through their eyes will make it all worthwhile, and it is that feeling which I wish for all of you... that, and great success in your own search and seizure missions. a

At Poole Lawyer, we believe that lawyers should serve clients. When they don’t we bring claims against them. Our work means a lot to us. Our art stimulates and facilitates our work.

Visit the Poole Lawyer Art Gallery at www.poolelawyer.com 403 685 2012 Left: Larry Wu (b.1985, Hong Kong) – B.A., B.Sc. University of Calgary, J.D. Queen’s University, Student at Law • Paillettes, Jean-Paul Riopelle (1923-2002) Right: Matthew Parsons (b.1984, Edmonton) – B.Comm. University of Alberta, J.D. Dalhousie University, Student at Law • Winter Sun Trap, Jack Shadbolt (1909-1998) Law Matters | 7

P R AC T I C E P O I N T E R S

Adhering to Procedural Deadlines: A Cautionary Tale

By Anne Kirker, QC, and Aaron Stephenson A recent decision by the Alberta Court of Appeal makes clear that the procedural timelines set out in the Provincial Court Act (Act) for appeals from the Provincial Court to the Alberta Court of Queen’s Bench must be strictly adhered to.

Anne Kirker, QC

In Kehewin Cree Nation v. Mulvey, 2013 ABCA 294, the Alberta Court of Appeal was tasked with determining what consequences should flow from a failure on the part of a Provincial Court appellant (appealing to the Court of Queen’s Bench) to file and serve the transcript of a small claims trial within the three month deadline under s. 46(3) of the Act.

The plaintiff was successful at trial and judgment was entered against the defendant accordingly. The defendant filed an appeal, but failed to file and serve the Provincial Court transcript within the prescribed deadline. The defendant filed an application in the Alberta Court of Queen’s Bench to extend the expired deadline. The chambers judge granted the extension . The plaintiff appealed to Aaron Stephenson the Alberta Court of Appeal, relying on s.

48(1) of the Act which states: “If an appellant fails to comply with the requirements of section 46, the appeal shall be dismissed by the Court of Queen’s Bench…” (emphasis added).

Faced with two competing lines of authority — one that recognized the Court of Queen’s Bench as having authority to extend the deadline under s. 46(3) and one that did not — Côté J.A. (Veldhuis J.A. concurring) approached the problem on a first principles basis.

He reasoned:

• “First, statutes bind everyone, unless they are unconstitutional.

See Hansraj v Ao, 2004 ABCA 223, 354 AR 91 (para 66); Glover v Glover (Minister of National Revenue) (#1) (1980) 29 OR (2d) 392, 399 (CA), aff’d [1981] 2 SCR 561, 43 NR 271.”

• “A judge has no power to amend or dispense with a statute unless that statute or some other statute expressly gives that power: Hansraj v Ao, supra, Glover v Glover, supra (in SCC); Tamglass American v Richter, infra (para 22); JU v Regional Director, 2001 ABCA 125, 281 AR 396 (paras 6-7), leave den (2001) 283 NR 398 (SCC).”

• “Therefore, a judge cannot amend a time limit in a statute by shortening it or extending it, unless a statute gives that power.

The older authorities are listed in Stevenson & Côté, Civil Procedure Encyclopedia, v 4, p 76-22 (2003). See also Lakevold v Dome Petroleum, infra; BDW v GBGR (1989) 68 Alta LR (2d) 377, 380 (CA); Yorkshire Trust Co v Mallett (1986) 71 AR 23 (CA) (para 5), Tamglass v Richter, infra (para 22); Tymchak v Subdivision and Development Appeal Board, 2012 ABCA 22, 519 AR 295 (one JA) (paras 44-45).”

8 | Law Matters

• “A power in the Rules of Court to extend times set by Rules or by orders does not empower extensions of time limits set by statutes. See the Civil Procedure Encyclopedia, supra. More recently, see Lakevold v Dome Petroleum (1979) 181 AR 254 (CA); Northern Sunrise (County) v De Meyer, 2009 ABCA 205, 454 AR 88 (para 7); Bahcheli v Alberta Securities Commission, 2007 ABCA 166, 409 AR 388 (para 73).”

• “If a statute gives power to extend a certain statutory time limit in certain situations, the court cannot extend it in other respects, or under other conditions: Tamglass American v Richter, Allen & Co, 2005 ABCA 341, 380 AR 286 (paras 14, 22); Bahcheli v Alberta Securities Commission, supra.”

The language used in the Act is mandatory. Section 46(3) states that an appellant “shall” file and serve the transcript within three months. Section 48(1) states that an appeal “shall” be dismissed if an appellant fails to comply with Section 46. Referring to the language of these sections, Justice Côté concluded that “[n]othing could be clearer.”

O’Ferrall J.A. (dissenting) agreed that the chambers judge had erred in granting the defendant’s extension application. He disagreed with the majority on a different issue1.

This decision of the Alberta Court of Appeal makes clear that deadlines prescribed by the Act must be complied with. Any lawyer handling a small claims appeal is therefore well advised to be aware of them. a

_______________________________ The majority and dissent differed in their interpretations of s.

53(2) of the Act, which states: “The decision of the Court of Queen’s Bench is final and cannot be further appealed.” Côté J.A. (for the majority) interpreted s. 53(2) as preventing the Court of Appeal from interfering with the decision of the chambers judge from the Court of Queen’s Bench even though the chambers judge had erred.

He left it up to the Court of Queen’s Bench to determine if there was a way to remedy the error: “Whether the Court of Queen’s Bench can reverse its erroneous decision, I must leave to it.” O’Ferrall J.A. disagreed. He interpreted s. 53(2) as only making a substantive appellate decision by the Court of Queen’s Bench final and not subject to further appeal. Section 53(2) was inapplicable because the chambers judge had not determined the appeal but, rather, had granted an interlocutory application to extend a timeline.

1

The Relevance of Us

B AC K TO B A S I C S

By Anthony G. Young, QC

Anthony G. Young, QC

anarchy and unrest.

“The first thing we do is kill all of the lawyers.” Many find this Shakespearian statement odd. Why would anyone want to do away with all of the lawyers?

Well, in the case of Dick the Butcher in Henry VI the motivation was clearly to create anarchy. Shakespeare did not intend to infer that lawyers are the lowest creatures. The statement was not made because lawyers are not needed. It was exactly the opposite; lawyers are needed to ensure the “Rule of Law” and to be the guardians against

I cannot imagine that the world would be better without lawyers. Others, however, question the changing legal landscape. Access to legal services is becoming more and more difficult for the average person.

The legal system, with its complex series of rules and convention is better suited for the professional, counsellor, barrister or solicitor.

It is not the best fit for the untrained. The complexity of the system creates barriers for the naive. These barriers result in misunderstanding and delay.

Years ago, (I am sure before my time at the bar) most individuals found in a courtroom were represented by careful professional advocates. Perhaps this was because courts were viewed by most as being something mystical that required the shaman like qualities of a well-trained orator. Or perhaps it was because lawyers’ hourly rates were a fraction of what they are today. Whatever the reason, the same does not hold true today. Increasingly, the average Joe or Joan is “going it on their own”.

The fact is that lawyers offer a myriad of practical and helpful advice and action to their clients. They are retained because they provide sound and effective solutions to complex matters.

Although the demise of individual representation appears to be on the wane this is not because the cost of representation is too high. It is because the system, which was originally designed to be navigated by professionals, has been opened to everyone.

This is a good thing. The only problem is that the system has been slow to adjust to the change. This has resulted in untrained individuals attempting to navigate a system they do not understand. They feel empowered by the Information Age. This is also a good thing. The only problem is that it does not help that in many cases the system does not understand them.

Lawyers are the necessary connective tissue. They help individuals navigate the complex legal conduit toward resolution. They protect the weak against injustice.

Lawyers therefore, are not only relevant, but also necessary.

They are the safeguard for individuals against oppression and tyranny. (By the way, so are the lawyers who do work for “the man”). a

US and cross-border tax is our business.

Let us help you with yours.

US citizens resident in Canada Cross-border business activities

Internet information is seen as a panacea. Google, Wikipedia and Bing have become the counsellors of the public. It is easy to turn to the computer for inexpensive and entertaining advice.

Anyone can enter an Internet chat room or Blog and speak to (or see what has been said by) arm chair lawyers about a myriad of legal problems and issues. Some of the information is suspect. Some is accurate and compelling. The only problem is that the average person does not have the context or training to deploy the useful bits (or should I say bytes) in a sound and effective manner.

Canadians with US investments US tax return preparation Warren Dueck FCA/CPA Steven Flynn CA/CPA Brent Hoshizaki CA/CPA Laura McLeman CA Lori Lui CGA

Which leads us to... the lawyers.

It is true that most of the lawyers retained or employed today do not work for individuals. Over two thirds of the legal community work for “the man”, that is, big business and government (I could have used the words: “the person”, although these gender neutral words just do not seem to have the same impact as the historical phrase). How then can it be said that lawyers are relevant and important to individuals?

T: 604.448.0200 • Toll Free: 1.855.448.0200 uscrossbordertaxblog.com • wldtax.com VANCOUVER

RICHMOND

CALGARY

OTTAWA

Law Matters | 9 LawMatters_ad_1/4-page_2013.05.07.indd 1

13-05-14 10:36 AM

UNSUNG HERO

This feature titled “Unsung Hero” is intended to introduce a member of our profession who has demonstrated extraordinary leadership, innovation, commitment, or made significant contributions to social justice and community affairs.

By Ola Malik and Kevin Feth, QC, President-Elect, Law Society of Alberta

Ola Malik

Kevin Feth, QC

The Canadian Bar Association and the Law Society of Alberta join in celebrating the 40th anniversary of Legal Aid Alberta.

We are proud of the accomplishments that Legal Aid has achieved over the last 40 years and recognize the invaluable work which the staff, lawyers and volunteers tirelessly perform to ensure that Albertans have access to justice, legal services and information.

In conjunction with our celebration of Legal Aid Alberta’s 40th anniversary, we are delighted to introduce you to the outstanding lawyer recipients of this year’s 6th annual Legal Aid Alberta’s Access to Justice Awards: Kevin Livingstone, Laurie Wood and Rhyannon O’Heron. The awards were presented at the Access to Justice Awards Gala held on October 1, 2013, in the presence of Premier Alison Redford Q.C. and keynote speaker, the Honourable Mr. Justice Richard Wagner, Justice of the Supreme Court of Canada.

Kevin Livingstone, a Legal Aid Alberta staff lawyer working in the Family Law Office in Wetaskiwin, received the Staff Lawyer Legal Advocacy Access to Justice Award for his work which promotes access to justice. Kevin has become a trusted advisor with many in the Aboriginal community living around Wetaskiwin. Through his nonjudgmental approach, continued volunteer efforts and dedication to treating all whom he encounters with dignity and respect, he is making a real and substantial difference in his community that will have lasting benefits.

Laurie Wood of the Wood Law Office was presented with the Roster Lawyer Legal Advocacy Access to Justice Award. For almost 25 years Laurie has been working tirelessly, often at night, on the weekends, and in remote areas, to ensure that individuals of all economic means have equal access to quality legal representation.

Laurie is regarded by her peers as a dedicated, humble and single minded lawyer who never hesitates to offer assistance when asked.

Laurie is a role model for those who are passionate about providing representation to the Province’s most needy.

Rhyannon O’Heron was the winner of the J. Patrick Stopa Access to Justice Scholarship which was created in Pat’s honour by the partners of his Calgary firm, Caron and Partners LLP. The scholarship provides $2000 in educational funding to a student or junior lawyer who demonstrates a commitment to ensuring access to justice in Alberta. Rhyannon graduated from U of A’s law school in 2013, and is currently clerking with the Nunavut Court of Justice. Among her numerous volunteer activities, Rhyannon volunteered with the U of A’s Student Legal Services, assisted people with criminal court appearances and residential tenancy matters, and has conducted law “camps” which educate low income children about the law and justice system. She was instrumental in re-establishing an outreach with the Crossroads Van, a program that provides services to women in the sex trade. She has also participated in a research project studying the impact of judicial and prosecutorial discretion on women’s equality before the courts in sexual assault cases, ultimately presenting the project’s findings at a forum at Simon Fraser University.

Kevin Livingstone, Laurie Wood and Rhyannon O’Heron are Unsung Heroes. Each of them has quietly committed to the noble mission of helping others--it is their determined pursuit of this mission that brings a tremendous credit to our profession and should be celebrated. Kevin, Laurie and Rhyannon represent some of the finest qualities of our legal community and serve as an inspiring force for us all.

Special mention goes to Nicole Mizzi, a social worker at the Youth Criminal Defence Office in Calgary, who received an award recognizing an individual who is not a lawyer but whose efforts have enhanced the ability of Albertans to pursue or protect their legal rights through access to justice. a

Do you know an Unsung Hero?

Tell us about them.

L to R: Nicole Mizzi, Kevin Livingstone, Laurie Wood, The Honourable Mr. Justice Richard Wagner 10 | Law Matters

If you know a lawyer who deserves to be recognized, please send us an email to newslet@cba-alberta.org with the lawyer’s name and the reasons why you believe they are an “unsung hero”. The only formal requirements for nomination are that our “unsung hero” be an Alberta Lawyer and a CBA member.

AVO I D I N G A N D R E S O LV I N G D I S P U T E S

Limited Scope Retainers: Which side of the fence are you on?

By Gillian Marriott, QC There is a debate taking place around the use of limited scope retainers (LSR’s) which generates supporters, dissenters, and “fence sitters”. The ‘fence-sitter’ practitioners do not see what all the fuss is about: they have either practiced that way for years (without labeling what they are doing) or they can see someone else doing it, but not them and not in their practice area. LSR’s are, however, increasingly being raised in the “access to legal services” discussions that are Gillian Marriott, QC taking place across the country. They are seen by many as a means of increasing the ability of those members of the public who cannot afford full representation to access legal services. Others view LSR’s as a risky practice, which can result in the practitioner getting caught in a variety of traps – involving the client or the court, or both.

For years, the basis of the argument against LSR’s was that the lawyer did not want to become the “solicitor of record” without being retained (getting paid) for doing so: The fear being that “if I help the client with X, the court is going to make me do Y and Z as well”. However, lawyers have been providing independent legal advice, client consultations, contract reviews and attending in criminal court without concern for the “limited” nature of their representation for years. So, one might ask: what is all the hullabaloo about?

Recently, the Benchers’ of the Law Society of Alberta accepted the following definition of LSR’s: “an agreement for the provision of legal services for part, but not all, of a client’s legal matter”. The premise underlying the definition is that there is no expectation that the lawyer will represent the client for the entire matter. LSR’s occupy space in the continuum between full representation and no representation and where it falls on that line is established by the agreement between the lawyer and the client. This raises some of the concerns that are the basis for the debate. Some detractors have genuine concerns about a client’s ability to understand and appreciate the “limits” to the retainer.

For example, the report of the CBA National Access to Justice Committee, Envisioning Equal Justice raised the concern that with an LSR the client is left to sort out what services they need and when. Legal Aid Alberta discovered during its pilot of LSR’s that some of its clients appreciated the nature and extent of the limited services being provided and some did not. The conclusion being that they had to be more cautious in whom they offered this type of service to. Another criticism is that offering legal services on a limited scope basis conflicts with a comprehensive, holistic approach to resolving legal problems. However, there have been many comments on the “cost” of legal services, including those made by Chief Justice McLachlin, and realistically lawyers are not going to take every one of those cases in which a client cannot afford “full representation” on a pro bono basis. Therefore, assisting by way of an LSR at least provides the client with some help, advice and comfort - a little help is, arguably, better than no help at all.

There appears to be increasing support for LSR’s as an alternative

form of practice that facilitates access to legal services by the public. This support is reflected in the position taken by the Federation of Law Societies Standing Committee on Access to Legal Services and recently by the Law Society of Alberta. The Standing Committee concluded that clarity in the rules relating to limited scope legal services could result in the provision of a broader range of limited scope legal services and a broader acceptance of those services amongst practitioners. The Federation’s Model Code was amended “with a view to encouraging the provision of legal services pursuant to LSR’s, with the intention of increasing the ability of some members of the public to access legal services”.

The Law Society of Alberta recently amended the Alberta Code of Conduct to reflect the Model Code, but went further in its encouragement of lawyers to explore this alternative to full representation. It was felt that the focus should be on whether limitations on the scope of legal services were reasonable in the circumstances, having regard to the nature and complexity of the client’s matter. The Commentary in the Alberta Code should be seen as offering helpful assistance to the lawyer who is looking to engage in a LSR with a client. Rule 2.02(1.1) encourages the lawyer to be clear about the nature, extent and scope of the services to be provided: in other words “build the fence – define what is in the yard and what is not - and don’t be jumping over it – unless you rebuild the fence!” One should also be careful not to act in a manner that suggests to the client that the lawyer is doing more than what was agreed to. Once you, the lawyer, have set the boundaries, you must stay within them. Lawyers are renowned for taking on more; for doing that “one more thing” – don’t – just don’t. A limited scope retainer should be limited to its scope – it is up to you to make sure it stays that way.

There is a great deal of information about LSR’s circulating right now. LESA just offered information on LSR’s and alternative business practices in a recent course and there is more information on their Blog, including a posting from Nancy Carruthers, Practice Advisor with the Law Society of Alberta. Pro Bono Law Alberta offers a webinar on LSR’s that was created in collaboration with Legal Aid Alberta and the CBA-Alberta Branch will be issuing a special on-line publication later this fall. So if you are sitting on the fence please explore these resources. LSR’s may be an alternative that you could successfully and effectively incorporate into your practice; thereby increasing the public’s access to legal services in a way that makes good business sense. a

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A DA P T I N G TO C H A N G E

Self Represented Litigants

By Sheila Pahl

Sheila Pahl

I recently heard a radio interview, wherein the participants were discussing the pros and cons of medical “apps”. They spoke of push-back from some in the medical profession, and suggested that these apps (which could be available within the foreseeable future), used for things like blood pressure and glucose monitoring, posed a challenge to the traditional authority, control, and “paternalization” of medicine. Effectively “democratizing” medicine, or at least taking steps toward it.

I couldn’t help but be reminded that the same phenomena is happening in law today. It is an indisputable fact that “access to justice” is happening, with or without our participation, and whether we like it or not.

The final report of the 2013 National Self-Represented Litigants (SRL) Project states that “the numbers [of SRLs] are extraordinary...

In Alberta in 2011, 40% of hearings in provincial court on family matters included one or more SRL’s. In the Queen’s Bench, the figure was 32%... “some lower level civil courts [report] more than 70% of litigants as self-represented.” Those numbers, however, only reflect the percentages of litigants self-representing at hearings. As practicing lawyers, we know all too well that the numbers are likely much higher when all other steps toward concluding a legal matter are taken into consideration.

It’s easy to assume that the majority of SRLs are so due to financial constraints. Of course the cost of legal services is an insurmountable barrier to many people, but it is not the only reason people self represent. While access to legal services may be grim, access to

information is anything but – and growing. Where lawyers and other professionals were once the gatekeepers of knowledge, most people can now get on to the internet, and fairly easily find legal information.

CANLII is an excellent resource for anyone, and the Courts and other public service websites offer step by step instructions on how to proceed in legal matters. The vast majority of pleadings and other documents are available online for free as well.

In addition to this growing access to information, according to the report, “there is evidence of general public dissatisfaction and skepticism about the value of all professional advice... as well as a general decline in deference towards professional advisors.”

To further drive forward the “democratization” of the legal transaction, the report cites a lack of alternatives as being another factor in the choice for many to self represent. This is the area where lawyers should take serious note if they want to survive the coming ice-age for the traditional practice of law. Many SRLs end up choosing to self represent due to the lack of alternatives, or at least perceived lack of alternatives, to traditional litigation, especially in family law.

The issue of access to justice is one we must drive home again, and again, and again; not only for the sake of those who need assistance in the legal realm, but for ourselves as professionals, if we are to remain relevant and necessary. We must be willing to work with clients in a far more flexible manner, not only in terms of fee structures (by now everyone knows that flexible fees, flat fee options, and limited scope work are the future of many legal areas), but also perhaps redirecting our attention to working WITH, and empowering, the client, rather than seeing ourselves as gatekeepers or authority figures. Of course we cannot (and should not try to!) teach a client how to be a lawyer, but we can teach ourselves to facilitate good outcomes and remain a desirable service in a changing world. a

Judicial Updates COURT OF QUEEN’S BENCH Honourable Eldon J. Simpson was appointed to the Court of Queen’s Bench of Alberta, effective June 7, 2013. He replaced Mr. Justice G.V. Verville (Edmonton), who elected to become a supernumerary judge as of March 1, 2013.

Andrew Robert Robertson, QC (Calgary) was appointed as a part-time master in chambers effective July 25, 2013.

Sandra Lynn Schulz, QC (Edmonton) was appointed as a part-time master in chambers effective July 25, 2013.

Honourable Madam Justice Carolyn Phillips (Calgary) has elected to become a supernumerary justice effective July 26, 2013.

Honourable Madam Justice Suzanne Bensler (Calgary) has elected to become a supernumerary justice effective August 4, 2013.

Master W.H. Breitkreuz (Edmonton) has been appointed as a half-time master in chambers effective October 1, 2013.

PROVINCIAL COURT Honourable Judge Sydney E.W.J. Wood (Edmonton) retired as a supernumerary judge effective July 15, 2013.

Raymond Karim Bodnarek , QC was appointed as a Provincial Court judge to Edmonton Criminal, effective August 6, 2013.

George Randall Ambrose was appointed as a Provincial Court judge to Grande Prairie effective August 23, 2013.

Honourable Judge Janet D. Franklin (Edmonton) has been appointed as a supernumerary judge effective August 30, 2013.

Honourable Judge Harry D. Gaede (Camrose) retired as a supernumerary judge on September 1, 2013.

Honourable Judge Kenneth L. Rostad (Camrose) has been appointed as a supernumerary judge effective September 7, 2013.

Judge Morris Basil Golden was appointed as the Assistant Chief Judge for Northern Region, effective September 9, 2013. He replaced Judge Eldon Simpson, who was appointed to the Court of Queen’s Bench.

Judge Gail A. Vickery (Calgary Family & Youth) has been appointed as a part-time judge effective September 22, 2013.

12 | Law Matters

CBA National News INTERESTING FINDINGS FROM THE FUTURES CONSULTATIONS

CBA STORE

The CBA Legal Futures Initiative is mid-way through its consultation phase, and is receiving considerable feedback about the future of the profession. Online polling so far shows that:

• Some 60 per cent of visitors firmly believe that articling is still the best vehicle for introducing students to the practice of law.

But are clients still willing to subsidize students’ entry to the bar?

• Almost 50 per cent of visitors continue to use the billable hour in pricing their services. If so, what are the attributes of the clients that are asking the other 50 per cent of lawyers for different pricing models?

• Only 20 per cent of visitors indicate that globalization has a meaningful impact on their practices. Does this mean we should ignore globalization as a factor that will change the profession?

You are invited to read what other are saying on a wide range of issues related to the future and to provide your viewpoints at www. cbafutures.org or by email at cbafutures@cba.org.

LEGAL EXPENSE INSURANCE

The CBA is following through with its 2012 resolution on improving access to justice through legal expense insurance (LEI). On September 3rd, the CBA partnered with DAS Canada, a leader in LEI to inform Canadians about the potential benefits of this type of insurance. The announcement follows the release of the report Reaching Equal Justice: An Invitation to Envision and Act, which suggests the CBA continue to urge insurance providers to gear LEI policies to the Canadian market, by including coverage for family law services. The consultation paper prepared for the CBA report illustrates how LEI can increase access to justice, using information from jurisdistions where LEI is commonly used.

You can read the consultation paper in its entirety at http://www.cba. org/cba/equaljustice/PDF/WorkingPaper1LegalExpenseInsurance. pdf.

PRESIDENT’S MESSAGE CBA President Fred Headon encourages you to tap into your creative resources and join him in putting clients back at the centre of the legal system. A well-funded and well-managed justice system will be the result of socially and politically conscious groups operating a fair, predictable and just legal system. It will take innovation, creativity, leadership and influence to get us there. Read the entire message on nationalmagazine.ca.

Legal Conference in Saskatoon, SK.

Well... we’ve been talking about doing it for a while... now we’re pleased to confirm that a selection of affordably priced CBA merchandise and apparel is available for purchase online. The merchandise was a huge hit at the CBA

The simplest way to browse and buy is via the membership page on the CBA website. We offer wholesale pricing direct from our supplier to you. Look for the “Must Have CBA Gear” button on the right hand side of the membership page at www.cba.org/membership.

RECOGNIZING EXCELLENCE 2013 Each year the CBA honours exceptional contributions to both the association and the legal profession. National presents this year’s award winners.

CBA President’s Award:

The Honourable Eric Rice (Vancouver, BC) Ramon John Hnatyshyn Award for Law:

Professor Elizabeth Sheehy (Ottawa, ON)

Cecilia I. Johnstone Award:

The Honourable Louise Mailhot (Montreal, QC)

Stephen Hanson Awards for Journalism - Print:

Paul Webster (Vancouver, BC), for “The War on The War

on Drugs”, published in Vancouver Magazine.

Stephen Hanson Awards for Journalism - Broadcast:

Joe Schlesinger and Bonnie Brown for “Truth, Lies and

Confessions”, on CBC The National.

Walter Owen Book Prize

Teresa Scassa and Michael Deturbide for Electronic

Commerce and Internet Law in Canada.

Edward K. Rowan-Legg Award:

Katherine E. Fraser (Edmonton, AB) SOGIC Awards - Hero:

Milé Komlen (Hamilton, ON)

SOGIC Awards - Ally:

Emma Halpern (Dartmouth, NS) Louis St. Laurent Award for Law:

Malcolm Mercer (Toronto, ON) John Tait Award:

Doug Moen, QC (Regina, SK)

Touchstone Award:

Catherine A. Fraser (Edmonton, AB) Young Lawyers’ Pro Bono Award:

Stephanie Yang (Regina, SK)

Viscount Bennett Fellowship:

Benjamin Perryman (Dartmouth, NS)

Read more about the winners at nationalmagazine.ca.

Law Matters | 13

FRONT & CENTRE CBA Legal Conference 2013

L to R: Guest speaker Peter Mansbridge address the attendees at the opening ceremonies and plenary; the national Access to Justice committee, including CBA - Alberta Branch members Patricia M. Hebert and Gillian Marriott, QC, shares its findings with Council; Justice Minister and Attorney General Peter MacKay answers questions from CLC attendees.

es n i h S ta Alber 2013! at ALC

University of Alberta Law Student Section Co-Chair Katherine E. Fraser is presented with the Edward K. Rowan-Legg Award

(l to r: Maureen Armitage, Executive Director, CBA Alberta Branch, Katherine E. Fraser, Cyril S. Gurevitch, QC, Past President, CBA Alberta Branch)

The Honourable Catherine A. Fraser, Chief Justice of Alberta and the Northwest Territories, winner of the Touchstone Award

(l to r: Jeff D. Wise, QC, former President, CBA Alberta Branch, Maureen Armitage, Chief Justice Catherine A. Fraser, Past President Cyril Gurevitch, CBA Alberta Branch President Marian V. De Souza, CBA National President Fred Headon)

Assist “Walk for Wellness” Members of Edmonton’s legal community gather at Sir Winston Churchill Park, September 25

The team from Assist leads Calgary’s legal community in a warm up, July 24

14 | Law Matters

The CBA Alberta Branch meets with representatives from University of London International Programmes. l to r: Maureen Armitage, Marian V. De Souza, Dr. James Busuttil, Lesley Hayman

Small Communities Initiative

The Players de Novo

Law Students in Medicine Hat and Grande Prairie attend “send off” BBQs

Edmonton’s own Players de Novo, made up of a talented group of local lawyers and judges put on a production of Nikolai Gogol’s The Government Inspector.

University of Calgary Dean of Law, Dr. Ian Holloway, QC addresses attendees in Medicine Hat.

L to R: Barbara Billingsley, John Donahoe, Julie Lloyd, Kevin Lieslar, Kelly Dawson, Donna Groves, Bradley Moss, Shannon Prithipaul, Greg Rice, Jody Fraser, Hu Young, Victoria Jones, Kevin Mott, Norm Picard, Jamie McGinnis, Darrin Hagen, Troy O’Donnell, Maggie Baird, Kathryn Quinlan, Nico Van der Kley, Heather Klimchuk (Minister of Culture), Patrick Marchand, Amy Lind, Mary Moreau, Danny Zalmanowitz, Andie Mulan and Tessa Stamp.

Race the Roof

Edmonton’s legal community raced in support of Habitat for Humanity, raising over $22,500!

CBA Alberta Branch President Marian De Souza, Executive Director Maureen Armitage, and summer student Jenna Will get some face time with the Canadian Forces Snowbirds.

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Law Matters | 15

Alberta Branch News NEW WEBSITE COMING SOON

NEW MEMBER SAVINGS PARTNER

We are excited to announce that Mercedes-Benz Canada has come on as a new Member Savings Partner with the CBA - Alberta Branch.

This partnership entitles our members to save between $500 and $1500 on the purchase of any new Mercedes vehicle.

In order to participate, members can visit the Mercedes-Benz Canada/CBA - Alberta Branch microsite at www.mercedes-benz.ca/ cba-ab, fill out a partners sign up form, and present it to their dealer of choice. There are currently four Mercedes-Benz dealerships in Alberta: Calgary Hyatt Auto Gallery 909 - 15th Street SW Calgary, AB T3C 1E5 Tel. 403 232 6400 Fax 403 232 6565 Edmonton David Morris Fine Cars Ltd. 17407 - 111 Avenue Edmonton T5S 0A1 Tel. 780 484 9000 Fax 780 484 8827

Lone Star Inc. 10 Heritage Meadows Road SE Calgary, AB T2H 3C1 Tel. 403 253 1333 Fax 403 259 5687 Weber Motors 5611 - 104 Street Edmonton, AB T6H 2K1 Tel. 780 431 5100 Fax 780 431 5144

For more information, contact communications@cba-alberta.org.

Lee-Anne

Wright

The CBA - Alberta website project is back on track! The website will serve as the leading resources on CBA initiatives, sections, professional development, events, and news affecting the legal landscape.

We are estimating that the website will be complete early in the New Year.

POST ON OUR ONLINE JOB BOARD The CBA - Alberta Branch offers online job postings at a rate of $600/month for non-members and $300/month for members. The jobs are now also featured in our monthly email newsletter at no additional charge. To post a job online, please contact 403-218-4310 or communications@cba-alberta.org.

JOIN THE CBA ALBERTA ONLINE COMMUNITY The CBA Alberta Branch is now active on Facebook, Twitter, and LinkedIn. Come join the conversation and receive up-to-the-minute updates on Branch initiatives. Follow us on Twitter @CBAAlberta, on LinkedIn, and “Like” us on Facebook.

at

LIMITED SCOPE RETAINERS The Access to Justice to Committee is working on a special electronic publication devoted entirely to the topic of limited scope retainers.

The purpose of the publication is to provide practitioners with discussion and analysis regarding the opportunities and challenges which limited scope retainers bring to the practice of law and practical tips and advice for the practitioner wishing to incorporate limited scope retainers into their practice. Look for a publication date of late fall, 2013.

SECTION REGISTRATION Sections may be in full swing for the 2013-2014 season, but there is still time to register! If you aren’t sure which sections you would like to register in, we offer a coupon in the 2013-2014 Section Handbook (available on our website at www.cba-alberta.org) that entitles you to attend one free section meeting. Take advantage of this opportunity to discover a new section to enroll in.

Section registration is available on our website. If you have any questions, you can reach out to your local Section Registrar: Linda Chapman (South) at 403-218-4313 or Heather Walsh (North) at 780-428-1230.

16 | Law Matters

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ALBERTA LAW CONFERENCE 2014 The 2014 Alberta Law Conference is quickly approaching, and will be held January 30 & 31 at the Westin Hotel in Calgary. Committee Chairs Loretta Bouwmeester and Jennifer Baugh are leading the rest of the committee in planning a first-rate conference with many opportunities for CLE and networking.

CHOOSE FROM CANADA’S TOP MEDIATORS AND ARBITRATORS Alberta Panel

Schedule at a Glance Thursday, January 30, 2014 Morning Law Society of Alberta Plenary

Lunch Guest Speakers - The Honourable Jonathan Denis, QC, Alberta Minister of Justice and Solicitor General and Fred Headon, National CBA President Afternoon Judges & Counsel Joint Session Corporate Commercial Panel Real Estate Panel

The Hon. John C. (Jack) Major, C.C., Q.C.

The Hon. W. Vaughan Hembroff, Q.C.

The Hon. Ernest Marshall, Q.C.

Clint G. Docken, Q.C.

Graham Price, Q.C.

E. David D. Tavender, Q.C.

Evening Exhibitor’s Reception

Friday, January 31, 2014 Morning Friday Morning Presentation & Breakfast Barristers’ Briefs Panel Criminal/Immigration Panel Family Law Panel Solicitors’ Shorts Panel Lunch Distinguished Service Awards Luncheon Afternoon Labour Arbitration Panel Social Media and Evidence Panel Wills/Estates Panel Law Students Panel

Evening Friday Night Dinner and Entertainment

Preparations continue for the 2014 Alberta Law Conference.

A brochure and registration form is included with your Law Matters.

The Canadian Bar Association - Alberta Branch will hold its

Annual General Meeting following the Winter 2014 Council Meetings

January 29, 2013 in the CBA - Alberta Branch Southern Office 1725, 311 - 6 Avenue SW, Calgary

Harold W. Veale, Q.C.

1.800.856.5154

[

Law Matters | 17 www.adrchambers.com

L E G A L E D U CAT I O N S O C I E TY O F A L B E RTA Annual Refresher: A Legal Education Tradition

By Jennifer Flynn, Executive Director, Legal Education Society of Alberta Tom Wilson, the first non-native to view Lake Louise in 1882 exclaimed, “I never, in all my explorations, saw such a matchless scene.” Over 131 years later, Lake Louise is still known as the crown jewel of Banff National Park and one of the most photographed landscapes in Canada.

That’s one of the reasons why LESA continues to hold the annual Refreshers at the Fairmont Chateau Lake Louise each spring. This luxury mountain resort is the perfect setting for Alberta lawyers to come Jennifer Flynn away refreshed and rejuvenated while at the same time fulfilling the requirements for individual continuing professional development plans. The Refresher is also an opportune time for networking and collaboration with fellow practitioners.

The upcoming 47th Annual Refresher from April 27 to 29, 2014, is entitled “Suits and Disputes” and will focus on the practice area of civil litigation.

Refresher registration includes the opening reception, three continental breakfasts, three networking lunches, six networking breaks, one gala banquet ticket, and course materials.

There’s also an opportunity for junior practitioners to attend an additional course on Saturday, April 26 – Running Your First Questioning.

Don’t miss this opportunity for rejuvenation, education, and socialization in this spectacular setting! Register before February 5, 2014, to take advantage of the early bird deadline.

Upcoming Seminars Other 2014 seminars include: • Constructive Trust Claims – focuses on remedies for Adult Interpersonal Partners on death where spousal remedies are not available including constructive and resulting trust claims.

• Bankruptcy – an overview of both business insolvency and personal bankruptcy proceedings.

• Residential Real Estate (for support staff new to area of real estate) – topics will include basic conveyance packages for both the seller and the buyer, transactions for the sale of property, and what to do when issues arise on closing day.

• Child Welfare – discusses the major changes in the role of counsel acting for children and the emerging trends in jurisprudence and research in the placement of children.

• Land Development – addresses the issues involved with development of residential and corporate land including the required permits, experts, municipality approvals, and financing requirements.

• Civil Litigation Procedure (for legal support staff)– topics include an overview of the civil litigation process, drafting pleadings and other documents, chambers, privilege, ethics, questioning, bills of cost, ADR, and trial preparation.

18 | Law Matters

• Deconstructing Unanimous Shareholder Agreements – discover when a USA is needed and why; what is included in a USA and why; and a review of the various provisions including shotgun provisions, call/put options, and ROFR clauses.

• PPSA Basics – a review of the Personal Property Security Act including a discussion of security agreements, the basic nature of security, and security interest priorities.

• Fundamentals of Mediation – this two-day conference provides entry-level training for general civil mediation. Become familiar with the basics of mediation in a coached, practical setting.

• Running Your First Family File – a fundamental program that will review the necessary stages to conduct a family law matter including the initial client meeting, time frames, organizing the file, disclosure, trust conditions, negotiating, interim applications, questioning, valuations, and setting the matter for trial.

• Mediation of Family and Divorce Conflicts – 40+hours of intensive hands-on skills training in family and divorce conflicts.

• Criminal Advocacy: Trial Strategy (part of the Criminal Advocacy Series Certificate) – includes a comprehensive address of the case to be made including the substantive and procedural considerations relating to witnesses, exhibits, case mapping, opening and closing arguments and approach.

• iPad for Lawyers – learn how iPad can become an essential part of the daily law workflow.

• Basic Corporate Procedures – discusses incorporation and extraprovincial registration, change of shares, change of directors and officers, annual corporate minute book maintenance, everyday resolutions, and change of registered office.

• Four Generations, One Workplace – discover how to minimize mutual frustrations and take advantage of diversity within the workplace.

• Family Farm Issues – focuses on family farm issues that are unique to the division of property and farm assets on divorce and death, including valuation, capital costs, write offs, and permitted exemptions.

• Advanced Estate Administration (10 years of practice in this area of law is a pre-requisite) – will delve into issues encountered in administering estates.

• Minute Taking Standards – learn to take minutes with ease and confidence while building a rapport with your group.

• Robert’s Rules of Order: Demystified – gain an understanding of the rules and principles that Robert’s Rules of Order uphold.

For the most up-to-date information on our live events, educational resources, pre-call admission training, and volunteer opportunities, please visit www.lesa.org. a

P R O B O N O L AW A L B E RTA

Give Thanks and Give Back

By Gillian Marriott, QC, Executive Director, & Kendall Moholitny, Program Manager, Pro Bono Law Alberta

Gillian Marriott, QC

Kendall Moholitny

fellow lawyers.

As the autumn leaves fall and we think of giving thanks, why not think of giving back? Doing pro bono work is a rewarding experience that allows you to use your unique skills to help individuals who are in need of legal advice but without means to obtain it. There are many legal clinics throughout Alberta looking for volunteers to assist them. Pro Bono Law Alberta (PBLA) is proud to support and enhance the work of the pro bono legal clinics and programs and asks that you consider volunteering for one of the great organizations that do this work.

The Benefits of Giving Back As lawyers, we have an ethical duty to foster access to justice. You can make a great difference to people who are not able to determine their next legal steps by volunteering a few hours a month.

There are other benefits as well. For young lawyers, doing pro bono work is an opportunity to gain experience and to improve and refine client interviewing skills. Volunteering also allows young lawyers an opportunity to network with

How to Make a Difference in Edmonton In 2012, the Edmonton Community Legal Centre (ECLC) assisted over 2,200 clients through its legal clinics. ECLC has legal clinics in the evenings on Tuesday, Wednesdays and Thursdays, from 6 p.m. to 9 p.m. at its downtown offices located at 200, 10115 – 100 A Street and at various other times in satellite clinics throughout the city. Lawyers meet with clients, provide legal information and advice, and screen cases on the basis of their merit to allow the staff lawyers to determine which cases most require assistance.

The areas of law covered include landlord/tenant, employment, human rights, contracts, insurance, social benefits, WCB, personal injury and negligence, tax, wills, foreclosure, bankruptcy and other areas of civil and administrative law and other areas of law relevant to low-income individuals (excluding family and criminal).

The time commitment is only one evening per month. ECLC also has opportunities for lawyers who would like to take on pro bono cases, assist the ECLC staff lawyers, to present at public legal information seminars, or to be part of ECLC’s wills roster. Get involved! For more information, please contact Jennifer Smyth by phone (780-702-1725, ext. 238) or e-mail (jsmyth@eclc.ca), or visit ECLC website: www.eclc.ca.

How to Make a Difference in Calgary Calgary Legal Guidance (CLG) provides legal information and advice to low-income people through evening clinics held most Monday – Thursday evenings at the downtown CLG offices located at #100, 840- 7 Avenue S.W. CLG assists people in numerous areas of law, including debt, landlord/tenant, employment, family,

criminal, restraining orders, and social benefits issues. No specific area of expertise is required to volunteer at CLG, and volunteers come from all different areas of law and levels of experience.

CLG also has legal clinics at the Eastside Family Centre, the Calgary Immigrant Women’s Association (CIWA), Calgary Chinese Community Services Association (CCCSA) and at SAIT. For more information, contact the Volunteer Coordinator at clgvc@clg.ab.ca.

Applications for volunteers are also located at CLG’s website: www.clg.ab.ca/volunteering/.

Another unique pro bono opportunity in Calgary is available at the Genesis Centre Through the collaborative efforts of Calgary Legal Guidance, Legal Aid Alberta and Pro Bono Law Alberta, a new and innovative legal clinic has been set up in the heart of the Northeast in Calgary. The 1000 Voices Legal Clinic operates out of the Genesis Centre at 7556 Falconridge Blvd NE. A seamless assessment process has been developed allowing for more time to focus on solving the legal issue and less administration time. The result is an organized and effective model that delivers high quality pro bono legal services in a manner that works for the clients and volunteer lawyers.

Volunteer lawyers are needed to support the 1000 Voices Legal Clinic which is held two Tuesdays per month. Interested?

Intrigued? Want to Learn More? Contact info@pbla.ca.

Other Opportunities to Make a Difference Calgary: The Children’s Legal and Educational Resource Centre (CLERC) provides children, youth and their families with legal education, legal information and legal representation. For information about volunteer opportunities, visit: http://www.youthlaw.ca/ volunteer/.

Lethbridge and Medicine Hat: Lethbridge Legal Guidance (LLG) offers free legal advice to individuals of limited means that do not qualify for Legal Aid in the Lethbridge community. For information about volunteer opportunities, visit: http://www.lethbridgelegalguidance.ca/ volunteer/.

Central Alberta: The Central Alberta Legal Clinic (CALC) is a free legal advice service for people who do not qualify for legal aid in the Red Deer area. There is also a clinic in Lacombe and service by videoconference in Rocky Mountain House. For information about volunteer opportunities, visit http://www.communitylegalclinic. net/volunteer/.

Grande Prairie: Grande Prairie Legal Guidance (GPLG) offers free legal guidance to low income individuals in the Grande Prairie community. For information about volunteer opportunities, visit http://www. gplg.ca/volunteer/.

Get Involved – You Will Be Thankful You Did! a

Law Matters | 19

CROSS SECTION

North

From the desk of Karen McDougall On behalf of my co-section coordinator, Frank Friesacher, and me – welcome back to another year of CBA section programming. The fall workshop for all new and returning section chairs was held on September 16. Thanks to all who attended.

We continue to make progress in the goal of including, though technology, those that can’t otherwise take part in and contribute to section activities. You will recall that Karen McDougall in 2012/2013 we augmented our live section meetings to include sections in Grande Prairie and, in the future, St. Paul. This year’s big news, discussed at the fall workshop, is the expansion of the webcasting capabilities in the Edmonton CBA offices. Ten of our some 32 North sections are now able to webcast their speakers live to those unable to attend.

They are: Administrative Law, ADR, Family, Insurance, Junior Lawyers, Labour & Employment, Municipal, Privacy, Real Property and Wills, Estates & Trusts.

We have also added the ability to Frank Friesacher record and make available on-line those presentations made to the smaller sections meeting in Edmonton.

Lastly, sections can now Skype speakers into their Edmonton meetings. The hope and expectation is that those smaller sections without the resources to meet speakers’ travel expenses will still be able to access those speakers remotely.

A S S I ST

Moving to membership-related issues, those that have not registered for a section still have time. The section handbook is now on-line only at www.cba-alberta.org. Those that were members of one or more sections last year continued to receive meeting notices for those sections until the end October. After that date, they were removed from the section database.

The changes to CBA membership renewal generally, which we discussed in the spring edition, have been finalized and were rolled out this fall. Along with the regular membership there are now two additional options: Portfolio and Portfolio Plus. Buying either of these add-ons essentially pre-pays for various CBA products and services at a savings. Depending on which package one chooses, the benefits are: an education credit, to be applied toward various things like section fees; materials-only section membership(s); and rebate rewards (equivalent to 3% or 5% -- depending on the level of Portfolio chosen) of the total spent on non-membership fees the previous year. More information is available through the national CBA website or from the CBA Edmonton office.

The first of two Inns of Court evenings were held November 4.

These events are sponsored by the CBA, the Junior Lawyers North section and the Edmonton Bar Association. They represent a valuable opportunity for socializing and discussion between junior members of the bar and senior practitioners and members of the bench.

Lastly, Frank and I would love to hear about anything relating to your sections that you would like us to promote in the next edition of Law Matters or that you might want to have mentioned in the new monthly CBA enewsletter. Feel free to contact either of us with your section news. a

Draw to the Button: Score Big with Peer Support

By Carolyn McCartney, Program Coordinator, Alberta Lawyers’ Assistance Program Peer support occurs when lawyers share their knowledge and experience, whether practical, emotional, or social, to help another lawyer. Peer support is simply letting a friend or colleague know that you are there to listen and offer support.

I experienced peer support last year when friends and I joined a Ladies Curling League. We had never curled before, and we called our team “Sheet Disturbers”. Of course we did not win a game all season. Despite our lack of curling skills, we were welcomed with advice, pointers and tricks, the low down on the rules, and congratulations for our efforts, even if they had just beat us 9 – 1. Our team was grateful for the supportive nature of other players. As a side note, we were duped into wearing matching snowflake nighties to the Christmas banquet, only to find everyone else in formal wear! We loved it!

In the legal profession, or in life, sometimes we need some support and encouragement. It can be really useful to get that from someone who has been there or who knows how tough it can be.

20 | Law Matters

Our tag line “lawyers helping lawyers” can mean different things to different people. To some, it may mean that help is there for them when they need it. For others, it can mean a shift in thinking: that they are not alone in their feelings, and that as a member of the legal community they have support available at all times. And for some it may mean that they feel a calling to use their experience and encouragement to help other lawyers in crisis or difficulty. Giving peer support comes naturally to some – or it can take some work.

Either way, in the end we all could use some validation, or a nudge in the right direction.

Since the start of Assist’s formalized Peer Support program: 31 lawyers have accessed the program for help; 40 lawyers have been trained as volunteers; and more lawyers apply to volunteer every week. Lawyers accessing the program for help have presented with work-related problems, depression, anxiety, stress, burnout, family and relationship issues, addictions, and financial issues.

Assist’s Peer Support volunteer training qualifies for a professional liability insurance rebate and as part of your CPD plan. If you are a lawyer with life experience and are interested in volunteering to help cont’d on page 21

CROSS SECTION

South

From the desk of Jenny McMordie

Welcome back to all CBA Section Members for another season of the professional development and networking for which CBA-Alberta is so well known. We also extend our appreciation to last year’s South Section Coordinators Curtis Serra and Melissa Morrison, and very best wishes to Melissa, who will shortly be on maternity leave.

We are excited to begin working with all of your section executives to help them in:

• Welcoming all new CBA Section Members and involving members in their chosen sections; • Facilitating valuable networking, through the social aspect of meetings and special events during the year; and • Providing the very best CLE planning, so that your monthly meetings offer you the highest quality presentations and deliver content to help you to be more effective in your chosen fields of practice.

We were pleased to hold a workshop for section executive members, to offer some guidance for running a successful section. There were excellent questions from attendees, and we received feedback that the presentation and materials were helpful. We are hoping to hold this workshop again in the late spring, just as new section executives begin their planning for the 2014-15 year.

We encourage you to communicate with the executive members of your chosen sections about what programming and services you would value the most, and ways in which your sections might be improved. Similarly, you are always welcome to contact either of us.

Our job is to help your sections be effective for you, and your input is both vital and appreciated.

This fall and winter the sections are gearing up for excellent programming and the section notices which have come out so far

cont’d from page 20 your peers overcome personal challenges, “hurry hard” and complete the application on our website.

reveal a rich and diverse opportunity for each of us to expand our knowledge and improve our practice. One of these is the Wills and Trusts Dinner at the Petroleum Club. On November 20, join the Wills and Trusts section for dinner, featuring Lisa Statt-Foy speaking on the topic of “Is there life after death for your digital assets and intellectual property?” There are 39 south sections this year, and 23 of these are regularly webcast, to encourage and facilitate the widest access possible for our members. Topics range from substantive areas of practice to common interest areas among CBA members which are not limited by practice area.

Jenny McMordie

Further, as you renew your membership with the new CBA membership fee structure, you will be able to purchase a “Portfolio” or “Portfolio Plus” package, getting credits you may apply to section and materials memberships, attendance at Section meetings when you are not a full member, and other CBA sponsored events throughout the year. You will also receive rebates on future education. The new CBA Anthony Strawson fee structure is intended to maximize the value you receive from the Canadian Bar Association.

We look forward to serving you as your Section Coordinators. This is your Canadian Bar Association - please help us to deliver the value and services that you want! a

The next volunteer training dates are: Saturday November 16 in Edmonton, and Saturday November 23 in Calgary.

“Anything that’s human is mentionable, and anything that is mentionable can be more manageable. When we talk about our feelings, they become less overwhelming, less upsetting, and less scary. The people we trust with that important talk can help us know that we are not alone.”

– Fred Rogers

To view the notice in it’s entirety, visit www.cba-alberta.org.

Law Matters | 21

T H E ST U D E N T P E R S P E C T I V E The first semester of school is underway, and now that September is over, hopefully students will have hit their stride when it comes to school. October should give way to more opportunities to explore as students settle into their routines. The CBA has a number of events that can benefit students.

Siwei Chen

Katherine Fraser

Kathryn Kitchen

After attending the Clubs Fair in September, many students signed up for and renewed their memberships with the CBA. As a member, students gain access to a plethora of meetings on a variety of topics in law.

Being part of the legal profession requires that students are constantly learning, even after they graduate. The CBA provides an easy and accessible way to learn about all sorts of areas of law and their related topics. Getting in the habit of learning outside the classroom in pursuit of one’s own interests will prove to be invaluable in the future for any good lawyer.

In addition to learning about the law, attending these meetings will put students in contact with lawyers who are interested or working in that area of law. These

In the first year of law school, particularly within the first month, we are bombarded with information regarding faculty clubs, organizations and involvement opportunities. We, of course, want to get involved with all of the groups that interest us, likely chair one or two of them as well. We weigh the benefits our involvement would bring while at the same time worrying how we will balance these extra commitments with studying. Sometimes we get so caught up on academic achievement and getting a job that we forget the value of the extra curricular groups that help us learn how to be a lawyer.

Extra-curricular groups and organizations are so important in bridging the gap between law school and the practice of law.

These activities help put the substantive law we learn into context and increase our advocacy skills beyond simply knowing the law. They also help law students develop the area of law they are interested in practicing while developing skills in a marketable way for the job force. During David Louie my three years at the Faculty of Law I have participated in numerous extra-curricular organizations that have all enhanced my legal education is one form or another. I have come to realize during this time that the unsung hero of these organizations is, of course, the CBA. Most law students enter law school with the understanding that the CBA is an organization to provide membership and benefits once

22 | Law Matters

University of Alberta

By Siwei Chen

are networking opportunities that could prove to be essential to a student’s future career. Even if the topic discussed at a meeting will not become a career, knowing lawyers from other fields of law can be useful in surprising ways in the future. Familiarity with other lawyers can be just as important as having a strong application when looking for jobs. Ultimately, many students’ applications look the same, so if someone from a firm can vouch for you, it can go a long way.

Beyond attending section meetings, the CBA also has a mentorship program where students are paired with a practicing lawyer. The mentor relationship allows for a student to get more access to a lawyer who will impart wisdom and experience. The mentorship program opens in December and begins in January with a mentor mixer. All students are encouraged to take advantage of this program.

Law school is only the start of the journey, and students should not assume that a classroom is the only way to learn. The CBA’s meetings give snapshots of entire areas of law, pointing attendees down a path of self-learning. In combination with the mentorship program, students can benefit greatly from membership with the CBA. To learn more about the CBA, especially the Law Student Section, students are invited to attend our meetings. This year, we have a great lineup of speakers and topics to give advice that should appeal to all students, from 1Ls to 3Ls. a

University of Calgary

By Kathryn Kitchen

we have completed school. I know that my original assumption was that membership wouldn’t even be an option until I was called to the bar. What I have come to realize is that the CBA offers so many benefits and opportunities starting at the student level. Since initial membership as a 1L student, the CBA has offered various conference and section meeting opportunities, allowing us to observe the more practical side of legal knowledge while making purposeful connections for our professional future.

The CBA’s mentorship program is another great way to make purposeful connections within the legal community. When meeting so many different people so quickly at networking events sometimes it’s hard to forge quality relationships. The mentorship program jump-starts this relationship with a lawyer in the Calgary legal community. The program coordinators also try very hard to match you with a lawyer practicing in your area of interest, giving students a real look at how the certain areas of law are practiced. In addition, because you are not soliciting a job from your mentor, the pressure is off and you are able to speak candidly with questions or concerns about legal issues and about being a lawyer.

Of all the groups and organizations I have participated in during my three years of law school I have to say that the CBA is one of the most valuable. Membership provides for so many educational and professional opportunities that have helped kick start my legal career.

My mentors have been an invaluable part of my legal education and have provided me with some sound advice that I will surely use to develop my professional identity. I would strongly encourage all law students to get involved with the CBA during law school as a great way to begin the development of your legal career. There is no time like the present to help develop your professional future! a

H E A LT H M AT T E R S

The Leavitt Institute for International Development

By Timothy J. Burnham I am a lawyer, called in 2007, and a partner at Gurevitch Burnham Law Office in Grande Prairie, Alberta. My practice is a general one; I do whatever my clients need. Family law, civil litigation, real estate, corporate commercial, and wills and estates are some of the areas in which I work.

In the spring of 2012 I grew restless and began looking for an opportunity to travel abroad, while using my legal education to help people in other parts of the world. I Timothy J. Burnham recalled an optometrist friend mentioning a planned trip to a developing country to do free eye exams and give glasses to children. I wanted to do something similarly meaningful, but the “what and where” remained vague for some time.

in democratic principles, advocacy skills, and ethics.

Unfortunately the BUILD Initiative in Ukraine has recently been suspended due to funding shortages. It is my understanding that The Leavitt Institute is seeking additional sources of funding to revitalize this outstanding program, and is even working toward building a Western style law school in Ukraine.

My experience in Ukraine was absolutely fantastic. From the moment arrived at the Kiev airport we were very well taken care of by The Leavitt Institute. They brought us to an apartment to rest and freshen up, then we were able to tour Kiev’s city center before leaving on the train to Odessa. In Odessa we were shown to our apartment which was only a few blocks away from the historic opera house.

And then it happened: an email stating an organization was looking for lawyers to teach law in Ukraine. I was intrigued, and so I replied.

To my surprise they wanted me to go. And so began my adventure.

In September 2012, my wife, our 2 girls (aged 10 and 7), and I left Grande Prairie, AB and travelled to Kiev and Odessa, Ukraine for 2 weeks to teach law courses at several universities. As part of the BUILD Initiative with the Leavitt Institute for International Development I taught lectures to upper year law students about the rule of law, the adversarial system, advocacy, professional responsibility and alternative dispute resolution. My family also enjoyed an exciting and educational holiday on the Black Sea.

The Leavitt Institute for International Development is an organization of legal professionals dedicated to spreading the rule of law and development of democratic liberties in developing nations. Teachers with the Leavitt Institute teachers are experienced judges and lawyers from the United States and Canada. They lecture on a variety of subjects and aim to make a lasting impression on the minds of their students abroad. The Leavitt Institute relies on the support of legal professionals willing to travel to developing nations and share their knowledge with ambitious law students. The Leavitt Institute has several projects: the BUILD initiative in Ukraine, the REAL Initiative in Rwanda, and the AIM Initiative in Moldova.

The Purpose of the Rwandan Educational Assistance in Law (REAL) Initiative is to improve the professional preparation of Rwandan lawyers and Judges, strengthen the administration of the rule of law by enhancing the ability to draft fair and concise legislation and teaching the courts to effectively manage case loads, and to increase the ability and technical capacity of law teaching institutions. The AIM Initiative in Moldova is similar to the BUILD Initiative, and teaches Moldovan law students critical thought analysis and advocacy skills.

The BUILD Initiative (Building Ukrainian Independence and Lasting Democracy) is founded on the principle that Ukraine will achieve an enduring and stable democracy only through the education and development of its rising generation of leaders, lawmakers, and law enforcement. The BUILD Initiative empowers the future generation of Ukrainian leaders with democratic ideals and understanding.

BUILD aims to effectuate a shift toward greater freedom and democracy for Ukraine’s future. For that purpose, BUILD has established relationships with 19 of Ukraine’s top law universities and has contracted with them to teach a full-year university course

The teaching experience was exciting. The students in Ukraine were eager to learn and The Leavitt Institute staff were excellent translators, and always made sure we had what we needed. One of the schools I taught at was a police academy where they also trained future prosecutors. Entering the school reminded me of how the Soviet Union was portrayed in older movies. There were guards at the door, and most people wore military style uniforms. Before I was allowed to teach I met with the Commandant. He was an imposing man in full military uniform wearing dark aviator sunglasses. We sat across from each other and had a brief conversation (through translators) about what I was to be teaching and how important the teaching was to his students. He then gave me permission to teach, but only under the condition that one of his staff would remain in the classroom to make sure things went well. And they did. I was surprised by the students’ frank awareness of the problems facing them, and how openly they discussed corruption and similar issues.

It was rewarding to feel like I made a difference.

While I spent time teaching my family played in the Black Sea. Each day when I finished teaching we toured the area and experienced the many cultural and historical sites to be found. We also ate at some of the best restaurants I have ever been to.

I would not hesitate to volunteer again. Without a doubt it was one of the most rewarding experiences I have ever had. My family and I fondly remember our trip to Ukraine, and since The Leavitt Institute is always looking for additional volunteers we long to embark on a similar experience again. a

Law Matters | 23

POINT

The Irony of Political Expediency: How tough talking politicians are putting Law and Order at Risk

By Michael Bates Too many changes in Alberta’s and Canada’s legal system are being driven not by a greater desire for justice or equity but by nothing more than opinion polls and re-election politics. Ironically many measures promising greater safety, tougher punishments and tighter cost controls are actually producing instability, injustice and bigger drains on the public purse.

In the Summer 2013 edition of Law Matters, Danusia Bourdon exposed some Michael Bates of the flaws in the provincial government’s amendments to impaired driving legislation. As she explains it, it is a “get tough” approach which ignores some of Canada’s most basic freedoms.

Unfortunately, most policy initiatives in the justice system are being driven by two things. A desire to save money at the expense of the Justice budget and a drive to make changes to the law that play well at the ballot box. Regrettably this kind of policymaking does not end with just ill-conceived amendments to Alberta’s Traffic Safety Act.

One of the latest, and in my view most misguided ideas being floated

by Alberta Justice is a campaign to persuade Ottawa to eliminate preliminary hearings in all but the most serious criminal cases.

Alberta Minister of Justice and Solicitor General, Jonathan Denis, QC, says given the defence now gets details of an investigation disclosed as a matter of course most preliminaries are no longer necessary.

Eliminating them would free clogged courts Denis says. He told the CBC earlier this year he is also concerned “from the victim rights’ standpoint that you may end up re-victimizing people twice through the current process. Procedures like this are not fair for victims.”

By playing the victim card Denis is hoping to get the public behind a bad idea. Already the Crown seems to be eliminating many preliminaries by frequently proceeding by direct indictment. A significant reduction in preliminary hearings might appear to the public, superficially at least, as a way the system can stop “coddling” criminals and end the delays so burdensome to victims and their families. But preliminaries eliminate unnecessary trials, reduce costly appeals and most importantly tend to produce more just outcomes at trial. That is a lot to give up to win a few votes.

The mantra around justice policymaking circles is get tough on crime, when it should be let’s get smart on crime. A perfect illustration is the budget-driven introduction of a raft of unnecessary new laws by the province and the feds. New speeding offences, prohibitions on bullet-proof vests and mandatory sentencing are all about unnecessary laws and unknown cost. Alberta’s distracted driving law is the epitome of this kind of thinking. There was already legislation that fully controlled such dangerous behaviour. Yet after a few highly publicized incidents the introduction of the entirely redundant distracted driving legislation made the government look like it was taking decisive action. Such meaningless initiatives may look good on election day, but they do nothing for public safety and only create another massively expensive layer to the bureaucracy.

I equate these kinds of laws to banning Great White sharks in Alberta lakes. They are entirely unnecessary though they may be expensive to police and they give some uninformed portions of the population

24 | Law Matters

a false sense of security.

Some people accuse the defence bar of opposing changes in the law because more expeditious trials will reduce fees. If only that were so. The fact is, the more the justice system is misguidedly tampered with by vote-hungry politicians the more delay is generated, and more people come before the courts. When it comes to law and order political bungling is quite good for the criminal defence business thank you.

So if both the provincial and federal governments are making a largely ill-judged and self-interested hash of the criminal law, how can crime be reduced? I believe the answer isn’t new and isn’t revolutionary. It is actually doing the hard, low-profile work that does not necessarily grab many votes. Adequate funding for education and early intervention with at-risk youth would go a long way to preventing too many lives being lost to crime. A robust, fully funded Legal Aid system would speed the work of the courts and discourage the miscarriages of justice engendered by poverty. More attention must be paid to such things as mental health, addiction and family law. Also, we cannot forget that if someone is placed in confinement, one day they are going to be released. As a society we have to prepare them for that return if for no other reason than basic self-interest.

Put ‘em in the slammer for a good long time after quick and easy trials and make sure the jails are tough. These ideas are facile bromides for talk show controversialists; they should not be driving legislation in this province or this country. a

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We Beg to Differ...

CO U N T E R - P O I N T

By Greg Lepp, QC , Assistant Deputy Minister, Alberta Crown Prosecution Service A debate on the propriety of legislative change aimed at reducing crime and protecting Albertans is always welcome.

I read with interest Mr. Bates’ piece on such legislative change in Alberta and I feel compelled to comment.

The changes referred to are driven by a desire to protect the public by reducing crime and the harm resulting from crime while, at the same time, insuring that the Charter rights of those targeted by the Greg Lepp, QC measures are protected. The changes are not motivated by pandering to opinion polls, as Mr. Bates suggests.

The battle against organized crime in Alberta is constant and challenging. The aim is to disrupt and dismantle these criminal organizations. Preventing gang members from wearing Kevlar to protect them while they engage in violent activity, or prohibiting them from driving the streets in armoured cars, which better allow them to engage in drive-by shootings such as the one that occurred on Centre Street in downtown Calgary a few years ago, is a laudable goal. I doubt the vast majority of Albertans are up in arms knowing that they can’t walk down the sidewalk in a bulletproof vest or drive a tank down the streets.

The Civil Forfeiture Office has been very successful in depriving criminals of the fruits of their illegal activity. Taking the profit out of crime is one of the best ways of controlling organized crime. Property rights have always been determined on a balance of probabilities. The Civil Forfeiture legislation does nothing more than establish a way of determining rights to property based on standards that have existed in Canada and England for hundreds of years. It is important to remember that nobody is deprived of liberty or convicted of crime under the Civil Forfeiture regime. Only property rights are in dispute. As to whether these provisions are of “questionable benefit” I would venture to say most Albertans would not “question” the benefit of depriving criminals of millions of dollars of ill-gotten gains and using that money, instead of their tax dollars, to fund worthy crime reduction initiatives.

The move to eliminate preliminary inquiries for all but the most serious cases is long overdue. Preliminaries are, in large measure, an anachronism, useful at a time when there was not a professional prosecution service duty-bound to take only meritorious cases to trial and when there was not a constitutional right to disclosure of the Crown’s case prior to election. Removing preliminary inquiries does not result in injustice. Currently, more than 95 per cent of criminal cases are resolved in Provincial Court, where there is no right to a preliminary. Nobody would seriously suggest that there is a significant risk that all of those cases might court injustice. There is no longer a need for a “dress rehearsal” before having a trial nor is there a constitutional right to one. There are plenty of ways that counsel can take steps to eliminate unnecessary trials and shorten them without the need for a time and resource-consuming preliminary inquiry. And,

once again, most right thinking members of the public would agree that it far less damaging for victims, particularly vulnerable ones, to testify in court once rather than twice, if possible.

Mr. Bates correctly points out that there were many cases in Alberta and elsewhere providing guidance and direction on the provision of disclosure. It is technically challenging, especially in the age of dashboard cameras and private surveillance videos, for the police and the Crown to insure full disclosure is provided. We welcome the Courts and counsel for the accused holding our feet to the fire. Interestingly, most of the cases Mr. Bates cites where disclosure was a challenge had the “benefit” of a preliminary inquiry which proved to be no benefit at all. The solution is simply to provide disclosure, and, if this is not forthcoming for some reason, for the defence to make a disclosure application.

The solution is not to hold a preliminary inquiry.

Mr. Bates suggests that the reduction in the number of preliminary inquiries is an example of misguided “fiddling” which will generate more delay and will work to the disadvantage of those accused of crime. In the recent case in Airdrie, where allegations of serious sexual assault against a child were dismissed due to delay, virtually all of the delay was caused at the Preliminary Inquiry stage. The preliminary in that case was completely useless and, if it had not been available, that case would have been resolved on the merits. Preliminary Inquiries exacerbate delay.

I agree with Mr. Bates that a robust Legal Aid program and early intervention targeting at risk individuals are high priorities which will improve Justice and prevent crime. No question about it. Although I am not directly involved in programs addressing these needs, I am aware that Alberta has done a great deal to address these issues and will continue to do so. But, to me, it is not an “either/or” proposition. The public expects that we will take action to create new laws that will prevent crime and disrupt criminal organizations and that we will constantly strive to modernize and streamline the Justice system while respecting Charter rights.

Alberta is committed to reducing crime and improving access to justice for Albertans. Alberta will continue to work to see those who commit crime held accountable for their actions. Whether that is labelled smart or tough on crime is irrelevant. It’s what Albertans want and what we will continue to work towards. a

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Law Matters | 25

A L B E RTA L AW R E F O R M I N ST I T U T E

The Law Reform Network

By Peter Lown, QC, Director, Alberta Law Reform Institute In my last column I told you about the project selection and law reform process generally. In the next column I will be concentrating on several reports and topics. In this column I will give you some background about the networks within which the Alberta Law Reform Institute operates.

An independent law reform agency must ensure that its activities are open, engaged and all views are taken into Peter Lown, QC account in finalizing recommendations.

We also want to ensure that we are not duplicating work or research that has already been done. Finally, most law reform agencies are relatively small and it is important to get out of our own world from time to time. There are two organizations with which ALRI is associated that help us in this way.

The first is the Federation of Law Reform Agencies of Canada through which we have connections with all the other law reform agencies across the country. At the present time Sandra Petersson, our counsel and research manager, is secretary and Carol Burgess, our administrator, is treasurer of this organization. Every two years FOLRAC organizes a staff development workshop to highlight emerging issues and skills for our counsel. The last meeting was hosted in Edmonton last fall and highlighted the use of social media and technology in our consultation processes. We heard from Australia about methods they have used and the experiences with them. Also coming out of that meeting was a more formal mentoring process for new counsel especially in smaller agencies.

A project on unincorporated associations was completed several years ago and a current project will come to fruition next year dealing with recognition of substitute decision-making documents.

All of which is a long background to tell you about two particular projects which we are bringing home to Alberta for implementation.

In 2012 the Conference completed a major overhaul of the trustee act and produced a Uniform Trustee Act and commentaries which is recommended for enactment in the provinces and territories.

ALRI is now preparing a report about how to enact that uniform act in Alberta. Also in 2012, the Conference completed a report and draft legislation under the title “undervalued transactions”.

This legislation would replace the fraudulent preferences and fraudulent conveyances legislation. Work on implementing that legislation in Alberta has just begun. Both of these topics can be found on the ULCC website which is http://www.ulcc.ca/en/.

In the next months, ALRI will be publishing a number of final reports on several topics, and those will be the subject of my next column.

Website: www.alri.ualberta.ca Email: reform@alri.ualberta.ca Twitter: @ablawreform

There is a broader Commonwealth Association of Law Reform Agencies, which hosts a meeting every three years in conjunction with the Commonwealth Lawyers’ Association. Again, the emphasis is on sharing work, avoiding duplication and enhancing capacity and skill development. Regional meetings of bodies like FOLRAC, the Australasian agencies or the Eastern and Southern African agencies often occur in the intervening years.

The second organization is one which the Canadian Bar Association helped create in 1918. The CBA suggested the creation of a body, similar to the Uniform Law Commission in the United States, to ensure the harmonization of law throughout Canada. Delegations from each province, territory and Canada attend an annual meeting of the Uniform Law Conference of Canada [ULCC]. Some delegations specifically include CBA representatives, and most will include representatives from government, law reform agencies, the practicing bar and sometimes the judiciary. The Conference divides into civil and criminal sections. On the civil side, the overall program is managed by a committee, which has been chaired for a number of years by ALRI’s director. The Conference has a healthy record of implementation of uniform acts in such areas as enforcement of judgments, civil enforcement, arbitration, limitations and electronic transactions. On the criminal side, many of the amendments to the Criminal Code have their source in the Uniform Law Conference. In addition, the Conference works on a small number of joint projects with its United States counterpart.

26 | Law Matters

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LOOKING TO ACQUIRE ESTABLISHED LAW PRACTICE. Our firm is ideally suited to assist in the smooth and orderly transition of your practice while still allowing you the flexibility to stay on as counsel should you wish. We are interested in expanding our corporate, commercial, commercial real estate, wills and estates, and trademarks practice, preferably in Calgary and surrounding areas. Terms are negotiable based on the practice. Please respond in confidence to selllawfirm@gmail.com.

SEEKING LAST WILL AND TESTAMENT for Lorna Elizabeth Sakaeda (Murdock), nee Greenwood. Call 403-607-6620.

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April 10 - 11, 2014 • Edmonton, Alberta CBA Alberta Branch is proud to host a Gala Dinner and Symposium in honour of the Centenary of the Court of Appeal of Alberta.

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